The adoption of Islamic law, Sharia, by many states in northern Nigeria continues to generate controversy. Some say judges may be reaching their verdicts improperly a charge denied by northern Nigerian officials.
In several cases during past two years men and women have been sentenced to stoning, flogging, and amputation in northern Nigeria. No one has been stoned, but some have been lashed after being convicted of drunkenness and fornication, and a few have had their limbs amputated for theft.
Some people in the region are concerned that the harshness of the verdicts means Sharia is not being applied properly.
Lawyer Suleman Kumo is a former law professor at Amadu Bellow University in Zaria, Nigeria who disagrees with some court verdicts. "There have been only two cases of amputation and the people confessed. I find it difficult to accept [that they confessed]. The law allows you to withdraw your confession. (But) in these cases, I am not satisfied the rules of evidence and procedure were properly followed," he says. "If they had been, it would have been difficult to find them guilty of the kind of theft that would have lead to amputation. They [would have been found] guilty of something else like trespassing."
Mr. Kumo disagrees with some judges in northern Nigeria who say pregnancy is enough to find a woman is guilty of adultery or fornication. "Sharia requires strict proof," he says. "You have to have four [male] witnesses, each of whom will testify to having seen them [committing the act]. If the fourth says he just saw them lying naked in bed, the whole thing founders."
Many of Nigeria's northern states rushed to adopt the Islamic law when military rule ended over two years ago. Mr. Kumo says the change may have been made in haste without proper research.
A study by the European Union last year found that the Sharia penal code in Zamfara State had incorrect and defective wording, omissions, and contradictions. Yet, the same code was adopted by five other northern states.
Mr. Kumo says in many cases judges may be using rules of evidence and procedure based on the former penal code of northern Nigeria. "In [the code of evidence under of the criminal procedures of] the northern Nigeria's former penal code, you just had to prove [guilt] beyond a reasonable doubt," he says. "But this is not permissible under Sharia. It [should be] difficult for people to make allegations and get away with them."
For some Muslim scholars, the question is whether judges are learned enough to correctly interpret Islamic law. University of California at Los Angeles Islamic Law specialist Khaled Abou El Fadl studies the classic texts of Islamic jurisprudence. He says Arabic references to amputating the hand in the Muslim holy book, the Koran, can be interpreted in more than one way. "The expression used could mean "sever the hand," or it could mean "be decisive and vigilant in fighting this form of criminality," he says. "And I think both readings are reasonable."
Caliphe Omar was a seventh-century Muslim jurist and leader - and a companion of Mohammed. He was known for refusing to implement punishment for theft when there was widespread poverty or hunger in a Muslim community. Professor El Fadl applies that standard in reasoning that no Muslim state today should apply corporal punishments for theft since most are poor.
Professor El Fadl says many modern jurists are poorly trained in Islamic law. Many countries receive money for schools and training from Saudi Arabia, which follows a puritanical sect of Wahabi-Salafi Islam.
There are four schools of Islamic jurisprudence, some of which are stricter in their application of corporal punishments.
Most judges are trained in just the school preferred by the Saudis, according to Professor el Fadl. And many students get rudimentary training, sometimes for just one-year about the same amount of time a student would train in a vocational school.
He also says many classical legal texts that differ from the strict Wahabist point of view are being altered by Saudi publishers and the country's Ministry of Religious Affairs. The texts are then used to train Muslim jurists around the world. "The most alarming aspect, as a person who was trained in Islamic jurisprudence, is there is a tendency now to cleanse and censor classical texts so they will reflect this puritan view of what Islamic laws is supposed to be," says Mr. El Fadl. "So the works of 12th century [Islamic legal scholar] Ibn Taymiya and others have been printed with the so-called "un-Islamic" positions deleted from the texts without the editors even notifying the reader. You hold the text thinking you have text, but you have a cleansed version." Professor El Fadl says it is a dangerous trend because most people depend on printed copies of the rare classical manuscripts. He says when the censors alter texts that are in some cases over a thousand years old; lawyers are no longer able to rely on authentic Islamic thought to challenge current rulings.
Professor El Fadl says one result of such fundamentalist interpretations of classical Islamic law is the uneven application of justice in Nigeria and other countries. "Several commentators have noted that in Saudi Arabia nearly everyone punished for fornication and adultery is a foreign national - except for one person from the royal family. There have been no Americans, no British, no Kuwaitis, none from the [wealthy] Persian Gulf countries. Some believe that [wealthy] Kuwaiti and Saudi men do not do [commit these crimes], only citizens of poor countries like the Philippines, India, etc. But as a Muslim jurist, [I find] this offensive," he says. "Not a single person of the high classes of Nigeria or members close to the government have come up for any charges under these socalled Islamic laws."
Northern Nigerian officials defend their application of Sharia. Sokoto State Attorney General Aliyu Abubakar Sanyinna says Nigerian judges are well trained. "Judges of Sharia courts are learned people in both Western and Islamic education. Some are qualified lawyers of the Supreme Court of Nigeria," he says. "To be appointed even as a lower court judge, he must be a holder of a diploma in Sharia and civil law. He must have practiced law and been a judge of [our former] court system [before the adoption of Sharia]."
Mr. Sanyinna says northern Nigerian Islam has its own traditions and is not influenced by Saudi Arabia. Mr. Sanyinna also denies that Sharia justice works against women or the poor. He notes that in January, an Islamic court judge in Zamfara state was flogged 80-times in front of a cheering crowd for drunkenness. And, he says a federal government official was recently removed for misusing public funds.
He says some of those with guilty verdicts have had their punishments reduced by an appeals court, and others who have been punished had confessed to their crimes. He says they had the opportunity to retract their confessions, but did not.
Sharia Supporters in northern Nigeria say corporal punishment is not limited to Islamic law, they note that under Nigerian federal law, murderers can be hanged. Most importantly, they say, Islamic law or fear of it - has lowered crime in northern Nigeria.
The federal government is funding the preparation of a standardized Sharia Penal Code. It is being developed by the Institute of Islamic Legal Studies of Zaria University in Kaduna in hopes that it will be used by all northern states. Among the participants are those who favor a strict view and those who favor a more tolerant approach to Islamic law.