SHARIAsource

This case is an appeal of a zinā (fornication) conviction by the Upper Sharīʿa Court of Gwadabawa, Nigeria, on several grounds, including: the trial court's lack of jurisdiction on the grounds that the Sharīʿa Penal Code upon which the appellant's trial and conviction was based came into existence after the alleged commission of the offense, and the failure of the trial court to explain the nature of the crime to the accused person. During the proceedings, the Appellant's counsel retracted the confession that the appellant had made to the trial court. The Court held that a person cannot be punished for an offense not known to law at the time of commission. The Court further determined that, because the Sharīʿa Penal Law of Sokoto State had not been enacted at the time the offense was committed, the conviction was invalid. Furthermore, it determined that the confession of the Appellant before the trial court was invalid due to the defects in the charge and the failure to explain the offense to the Appellant. Even if the confession had been valid, its retraction upon appeal was valid because retraction of confession is valid at any time before judgment. Pregnancy by a divorced or widowed woman is not conclusive proof of zinā where such pregnancy occurs within 5-6 years of the previous marriage. It is an overriding principle (according to the doubt canon) that where doubt exists, fixed criminal penalties (ḥadd penalties) should be avoided. The Court quashed the conviction.

This fatwa states that Islam recognises the death penalty and applies it to jarimah (criminal conduct) that warrants hudud, qishas (retaliatory) or ta'zir punishments. It also acknowledges that the state may execute perpetrators of certain criminal offences.

This provincial regulation obliges the regional government of Aceh to develop, guide, and monitor, the implementation of shari'a to the best of its abilities. The regulation defines implementation as including, among other things, aqidah (correct doctrine), ibadah (ritual worship), mu'amalah (commercial and civil matters), akhlak (goodness), Islamic education and the defence of Islam.

Chapter V of the regulation specifies punishments, including imprisonment, fines, and adat sanctions (art 19), but hudud penalties are not included.

This qanun constitutes the Aceh Islamic Criminal Code. It prohibits jarimah (conduct prohibited under Islamic law, or sharīʿa) and imposes hudud and ta'zir punitive measures ('uqubat) as deterrents for committing jarimah. Specifically, the qanun prohibits khamar (alcohol), maisir (gambling), khalwat (close proximity in private), ikhtilath (non-sexual, pre-marital intimacy), zina (adultery), sexual abuse, rape, qadzaf (false accusation), liwath (sodomy), and musahaqah (lesbian relations).

Article 4(2) of the qanun defines hudud punishment as caning, while ta'zir, according to arts 4(3) and 4(4), is caning, monetary fines, imprisonment, and restitution.

Pursuant to art 5, persons subject to the qanun are:

1. all Muslim offenders in Aceh;
2. all non-Muslim offenders who commit an offence togther with another Muslim and voluntarily submit to the qanun;
3. all non-Muslims who commit an offence not covered in the Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana) or that is outside the Indonesian Criminal Code, but regulated in the qanun; and
4. legal entities carrying out operations in Aceh.