Nigeria 
Nigerian girl appeals against Shari 'a pre-marital sex ruling

afrol.com, 11 January - The Nigerian teenager girl, Bariya Ibrahim Magazu, last year was sentenced to 180 lashes for pre-marital sex according to the Shari 'a laws of the Northern Nigerian state of Zamfara. As she was child-bearing, the punishment was postponed to after the child birth, which took place in mid-December. Now, Bariya has until January 27 to appeal against the ruling, which Southern Nigerians characterise as unconstitutional.

Bariya Ibrahim Magazu was convicted of zina (fornication) in September 2000, under the Shari 'a Penal of Zamfara State (enacted in June 2000) for being pregnant without being married. She was sentenced to 100 lashes to be carried out 40 days after the birth of the baby. Further, she was sentenced to another 80 lashes for qadhf (false accusation of zina) when the court decided that there was insufficient evidence to identify the men she names as the possible father of her baby. As the baby now has been born, the sentence is due to be carried out on 27 January 2001.

Following reports of the case in Nigerian newspapers, the organisation BAOBAB for Women's Human Rights went to Zamfara State to investigate the case in November 2000. At this time Bariya and her family agreed to appeal and asked BAOBAB to assist them.

BAOBAB also saw the Governor of Zamfara State in November. He refused to consider executive clemency on the grounds that this would be detrimental to Islam. He also dismissed letters and protests from human rights groups (especially from the global North) as they are not Muslim or based on Muslim laws, and therefore unqualified to comment. He has continued to maintain this stance, despite appeals from the federal government. However, the Governor agreed that he would be willing to consider arguments made in Muslim law.

Bariya Ibrahim Magazu lives in the village of Magazu, on the outskirts of the small town of Tsafe, about 45 minutes from Gusau (the capital of Zamfara State). She was a hawker, selling the rice and fura (ground millet balls) made by her mother. Once it became obvious that she was pregnant, her uncles took her to the magaji (the district head in the village) who is related to the family.

The magaji asked her how she had gotten pregnant and she named the three men as possible responsibles. The District Head told BAOBAB that he then summoned the three men named. He questioned them extensively but they denied the charge. The magaji told BAOBAB that all three men were married and in their twenties or thirties (newspapers state that the men were middle-aged). They are near contemporaries of her father.

At this stage enagadi (Islamist vigilantes) heard about the case. The vigilantes came and took the three men to the Police Station. They were arrested and spent three days in Police custody. They were later released as they continued to deny the charge.

The case was then referred to the Shari 'a Court in Tsafe. BAOBAB was refused access to court records. However, some of the court officials were willing to discuss the case. The court convicted Bariya Magazu of fornication and sentenced her to 100 lashes after the birth of the baby. According to court officials this was simply on the basis of her being evidently pregnant and unmarried.

Bariya thinks she is thirteen or fourteen but she does not know for sure - newspaper reports put her age at seventeen. The judge in the case, amongst others, states that as long as she has started menstruating she is considered a full and responsible adult.

Apparently no witnesses were called to testify that she had consented willingly. Again according to newspaper reports, Bariya Maguzu stated in court that she was coerced into having sexual intercourse. Other reports state that this was at the instance of her father, who owed money to the three men.

According to newspaper reports, Bariya Magazu had called seven witnesses. However, court officials stated that the three men were acquitted because the witnesses' testimony was judged to be insufficient to prove that they had had sexual intercourse with her. The proof required was that at least four witnesses of good character testify that 'a hair could not pass between their bodies'.

Had any of the accused been found guilty, their crime would have been adultery, for which the punishment is stoning to death, since they were all married. The accused men were not required to swear to their innocence on the Koran. The possibility of medical evidence (blood or DNA testing) was not raised. Since the men were acquitted, Bariya Magazu was sentenced to an additional 80 lashes for false accusation of zina (adultery or fornication) against them.

As is usually the case at this level of court in Nigeria, neither Bariya, nor the men she named as possible fathers of her baby, had legal representation. 

Shari 'a polarising Nigeria
Zamfara State is only one of of eight Northern Nigerian states to introduce the Muslim Shari 'a provisions since June 2000. Zamfara, however, was the first state to do so, and "has been the most active in prosecuting the code," according to analysts. In August 2000, for example, two motorcycle taxi riders in Zamfara received lashes for having for carried female Muslim passengers.

The introduction of Shari 'a laws in the north is seen as unconstitutional by most in the south of the Federal Republic of Nigeria. Zamfara state, however, made use of the week situation the federal government found itself in after the return to democracy last year. Ethnic and religious conflict threatened to split the country if President Obasango would not give in to northern Shari 'a demands. And so he did. The states of Borno, Jigawa, Kano, Katsina, Niger, Sokoto and Yobe soon followed Zamfara.

The Northerners' willingness to jeopardise national unity on the issue of Shari 'a has very much polarised the Nigerian opinion. Southerners, predominantly Christians, strongly oppose the use of Shari 'a in the north, and also have made notice of the case against young Bariya while shaking their heads. In response to the ongoing polarisation, several Southern Nigerian governors yesterday sought the federal government for a stronger autonomy for the economically more developed south. 

Muslims in Northern Nigeria, on the other hand, claim that Christian severely misunderstand the Shari 'a, concentrating too much on the punishments it prescribes. In many northern states, Shari 'a has massive popular appeal, as people believe it will help root out corruption and restore moral values in a Nigeria that no one can claim is living up to potentials. Southerners maintain the Bariya-case illustrates how the use of Shari 'a violates the federal Constitution and basic human rights.

Appeal for aid
BAOBAB has sent out an appeal for support in treating the appeal of Bariya. Currently, a team of seven lawyers (all but one working pro bono) are filing a leave to appeal and stay of execution on Bariya Ibrahim Maguzu's behalf, as well as undertaking research on grounds and argumentation for the appeal. This appeal is the first of its kind in Nigeria. BAOBAB is asking for aid "from all those with experience and knowledge of Muslim laws in preparing the appeal. We will be asking first to quash the conviction, and failing that for it to be mitigated."

In an appeal, Ayesha M. Imam from the women's rights organisation says that, "in particular, we are looking for similar cases from other Muslim law jurisdictions so that we can consider using the same argumentation and citations from Koranic surahs, hadith and jurists. For instance, we have considered the argument that, bearing in mind her youth, there needs to be witnesses to testify that Bariya consented willingly to sexual intercourse. However, it would be extremely helpful to have the particular references and citations that would substantiate this argument."

The sentence is to be carried out in a fortnight. The organisation therefore fears that "the appeal - assuming leave is granted - will be heard within a few days, so we do not have much time."

Please send whatever information you can to the email or fax addresses of BAOBAB:
Tel/Fax: +234 1 262-6267
Email: ayesha@baobab.com.ng or baobab@baobab.com.ng 

Sources: Based on femmes-afrique, BAOBAB and afrol archives

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