SHARIAsource

Two accused persons, both previously married to other persons, were charged with the crime of committing zinā (fornication), which is prohibited in the Islamic Penal Code of Sokoto State, Nigeria. The man denied the charge and declared his innocence in court. The woman admitted to having sexual intercourse with the accused man and to being pregnant as a result. The Court held that the crime of zinā (fornication) is proved by a valid confession, the evidence of four witnesses, or by pregnancy outside of marriage. Because the first accused person denied that he had made an earlier confession, a confession could only be verified by the testimony of four witnesses. Because only two witnesses had given such testimony, the confession was not valid. The Court also held that retraction of a confession is permissible. Therefore, even if the first accused, the man, had earlier confessed, his denial of the charge in court amounted to a valid retraction of the confession. The Court convicted the second accused person, the woman, on the basis of her in-court confession and sentenced her to death by stoning after childbirth and weaning. The woman successfully appealed her conviction.

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.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

This qanun regulates the shari'a courts (Mahkamah Syar'iyah) of Aceh, as well as the personnel and hierarchy therein. It also defines the areas of law over which the courts have jurisdiction, those being al-syakhshiyah (family law), mu'amalah (civil and commercial law), and jinayat (criminal law). The elucidation of the qanun defines jinayat as including offences such as zina (extra-marital sex), accusation of zina, murder, physical abuse, alcohol consumption, gambling, and failure to abide by prayer and fasting requirements.

This fatwa permits IVF conception, provided the subsequent pregnancy does not involve surrogacy (e.g. the ovum comes from the husband's first wife, but the child is carried by his second wife). This is to avoid subsequent inheritance-related complications.

The fatwa also forbids:

1. a woman using the frozen sperm of her deceased husband to become pregnant because of potential future complications related to paternity and inheritance; and
2. a child being conceived through IVF using the sperm and ovum of a couple out of wedlock (zina).

This fatwa encourages people to treat the sick as though Allah himself were sick by providing them with moral and material support. The fatwa also reminds people to avoid anything that may place their own health at risk, especially if the disease of another is contagious.

The fatwa states that around 80-90 per cent of HIV/AIDS sufferers contract the virus through sexual intercourse out of wedlock (zina). It states that some HIV/AIDS sufferers contract the virus through their own sinful (dosa) actions, while some contract it as a result of the conduct of others. Accordingly, the most effective way to eliminate the virus is for people to cease having sexual intercourse out of wedlock.

The fatwa states that HIV/AIDS sufferers should be treated in a humane manner without exposing those treating them to the risk of contracting the virus.

This regional regulation makes provision for the eradication of immoral practices, which, it states, damage the pillars of society and are contrary to religious norms, morality, customs and tradition, and current legal norms in Musi Banyuasin regency (arts 1(7) and 2(1)). The regulation includes the following in the definition of immoral practices (perbuatan maksiat):

1. prostitution;
2. sexual relations out of wedlock (zina);
3. homosexual reations;
4. lebianism;
5. sodomy;
6. rape;
7. sexual abuse;
8. pornoaction;
9. pornography;
10. gambling;
11. alcohol; and
12. illicit substance abuse (art 2(2)).

A person found to be in contravention of the regulation can face a maximum fine of IDR 50 million or a maximum prison sentence of six months (art 9(2)).

This regional regulation makes provision for the eradication of immoral practices, which, it states, damage the pillars of society and are contrary to religious norms, morality, customs and tradition, and current legal norms (art 2(1)). The regulation includes the following in the definition of immoral practices (perbuatan maksiat):

1. prostitution;
2. sexual relations out of wedlock (zina);
3. homosexual relations;
4. lebianism;
5. sodomy;
6. rape;
7. sexual abuse;
8. pornoaction;
9. pornography;
10. gambling;
11. alcohol; and
12. illicit substance abuse (art 2(2)).

A person found to be in contravention of the regulation can face a maximum fine of IDR 5 million or a maximum prison sentence of 180 days (art 10(2)).

The prosecution submitted that the accused had raped the 13-year old victim, his own biological daughter, contrary to arts 49, and 1(30) and (25) of Aceh Qanun No. 6 of 2014 on Criminal Law, on a day in October 2015 at around 4.00pm, and then again on 5 November 2015 at around 4.30pm. The prosecution submitted that upon learning that his daughter had been physically intimate with her own step-father, the accused visited her at his sibling's home, where she was living, and raped her on at least two occasions. On the first occasion, the accused allegedly told the victim that he was raping her because she was no longer virginal ('udah hancur'), that she therefore had ruined her future, and that he would take her to Medan where she could become a prostitute ('lonte'). On the second occasion, on 5 November 2015, the accused again allegedly raped the victim while threatening her that he would either kill her or send her to Medan to become a prostitute.

A medical report submited by the prosecution revealed that the victim had been raped on several occasions. The prosecution submitted that, pursuant to arts 49, and 1(30) and (25) of Aceh Qanun No. 6 of 2014 on Criminal Law, the prescribed punishment for incestuous rape is either between 150 and 200 strokes of the cane, a fine of between 1500 and 2000 grams of pure gold, or a prison sentence of between 150 and 200 months. The prosecution requested, therefore, that the accused be imprisoned for 16 years.

The court acknolwedged that the charge was one of rape, rather than zina (sexual relations out of wedlock), meaning that the evidentiary burden contained in Aceh Qanun No. 7 of 2013 on Criminal Procedure applied, rather than that of four witnesses, as in cases of zina. Moreover, as Aceh Qanun No. 6 of 2014 prescribed a ta'zir punishment for rape, the court was of the opinion that a prison sentence would reduce the chances of the accused reoffending. In sentencing the accused to 15 years' jail, less time already served on remand, the court also acknowledged the seriousness of the offence and the need to protect children from such abuse, citing Law No. 35 of 2014 on Amendments to Law No. 23 of 2002 on Child Protection.

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.

In preambular statement (a), this regional regulation states that Gorontalo province is a customary law region (Daerah Hukum Adat), whose culture is based on the philosophy of 'Adat bersendikan Syara, Syara bersendikan Kitabullah' ('custom found upon Islamic law, Islamic law found upon the Qur'an'), which needs to be maintained. Accordingly, it seeks to regulate and prohibit immoral behaviour that damages the societal fabric of Gorontalo, and which contradicts religious norms, morality and customs (art 2(1)). The regulation prohibits:

1. sexual relations out of wedlock, including adultery and prostitution (zina) (arts 3 and 4);
2. illegitimate marriage (art 5);
3. rape and sexual abuse (art 6);
4. pornoaction and pornography (art 7);
5. gambling (art 8);
6. alcohol consumption in non-designated areas (art 9(1));
7. being intoxicated in a public place (art 9(2)); and
8. narcotics distribution and abuse (art 10).

Contravention of arts 3-8 and 9(2) carries a maximum penalty of six months' imprisonment or a fine of IDR 5 million (art 14(1)), while contravention of art 10 carries a maximum penalty of IDR 5 million or a loss of trading licence (art 14(2)).

The prosecution submitted that, on Friday 21 November 2014 at approximately 2.30am, the accused and witness were found in close proximity with one another out of lawful matrimony (khalwat) in a complex rental property by other witnesses, one of whom was the receptionist of the complex. On the facts, the court found that the accused had committed khalwat, thereby contravening arts 4, 5 and 22(1) and (2) of Aceh Qanun No. 14 of 2003 on Close Proximity. In sentencing the accused to nine strokes of the cane, it cited Surah Al-Isra' verse 32, which discourages sexual relations out of lawful matrimony (zina). In determining the severity of the sentence, the court noted that the accused:

1. had conducted herself in a manner not consistent with the applicability of Islamic shari'a in Aceh;
2. was already married; and
3. was a civil servant; but
4. had acknowledged her misconduct;
5. regretted her misconduct and vowed not to re-offend;
6. had been cooperative throughout the proceeding and conducted herself appropriately; and
7. was a first-time offender.

The prosecution submitted that, on Friday 21 November 2014 at approximately 2.30am, the accused and witness were found in close proximity with one another out of lawful matrimony (khalwat) in a complex rental property by other witnesses, one of whom was the receptionist of the complex. On the facts, the court found that the accused had committed khalwat, thereby contravening arts 4, 5 and 22(1) and (2) of Aceh Qanun No. 14 of 2003 on Close Proximity. In sentencing the accused to nine strokes of the cane, it cited Surah Al-Isra' verse 32, which discourages sexual relations out of lawful matrimony (zina). In determining the severity of the sentence, the court noted that the accused:

1. had conducted himself in a manner not consistent with the applicability of Islamic shari'a in Aceh;
2. was already married; and
3. was a civil servant; but
4. had acknowledged his misconduct;
5. had expressed remorse for his misconduct and vowed not to reoffend;
6. had been cooperative throughout the proceeding and conducted himself appropriately; and
7. was a first-time offender.

The parties were married on 7 September 2010 and had one child who was currently under the care of the respondent. The parties had not been living together because the applicant's work commitments meant he was rarely able to return home. Moreover, the respondent needed to live with, and care for, her aged parents. The applicant submitted that given his high libido, and that because he could not be with the respondent, it would be preferable for him to take a second wife instead of committing adultery (zina). The respondent, the applicant submitted, had no objections to his request. The applicant also claimed that he would be able to care for both his wives and child given his monthly salary of IDR 4,650,000.

In acceding to the applicant's request, the court, pursuant to the elucidation of art 49(2)(i) of Law No. 7 of 1989 on the Religious Judiciary, noted that it had absolute authority to adjudicate the case. Furthermore, as the respondent had acceded to the applicant's request, all prescriptive requirements, as contained in art 5(1)(a) of Law No. 1 of 1974 on Marriage, in conjunction with art 41(b) of Government Regulation No. 9 of 1975, and art 58(1)(a) and (2) of the Compilation of Islamic Laws, had been met.

This regional regulation makes provision for the prevention of behaviour that contradicts and contravenes moral and religious norms (art 2). Specifically, the regulation is concerned with alcohol (minuman keras), and prostitution (pelacuran) and sexual relations out of wedlock (perzinaan) (arts 4-6). Contravention of the provisions therein can result in a prison sentence of, at most, six months, or a fine of up to IDR 50 million (art 17).

The prosecution submitted that, on 28 April 2010 at around 9.30pm, the male and female co-accused were found in close proximity together out of wedlock (khalwat). Specifically, the female co-accused had allegedly left her home to purchase noodles, unbeknownst to her husband and without his blessing. After leaving her home, the female co-accused had collected the first witness and met the male co-accused, who had been waiting for her at a roadside point. The female co-accused then told the first witness to leave her alone with the male co-accused. Both co-accused were allegedly found in close proximity with one another by the husband of the female co-accused (the second witness). When the second witness found the two co-accused, the male co-accused allegedly left the scene.

The prosecution submitted that the conduct of the co-accused contravened arts 5 and 22(2) of Aceh Qanun No. 14 of 2003. Accordingly, it requested that the court sentence the co-accused to two months' imprisonment, and that it order both co-accused to pay a fine of IDR 5 million each.

The court dismissed the application of the prosecution on the grounds that, on the evidence before it, the co-accused had not committed khalwat, as defined in art 2 of Aceh Qanun No. 14 of 2003. Specifically, the definition of khalwat specifies that the conduct of both parties must be heading towards adultery (zina). Based on the submissions made by all the relevant parties, the court concluded that the conduct of the co-accused resembled an ordinary conversation. Therefore, citing art 191(1) of Law No. 8 of 1981 on Criminal Procedure, the court released the co-accused on the grounds that the prosecution had failed to establish any misconduct on their part.

The prosecution submitted that, on Saturday 6 December 2014 at approximately 11.00pm, the accused was found in close proximity with a person of the opposite sex out lawful matrimony (khalwat). The prosecution maintained that the accused and witness had engaged in sexual relations with each other, despite the fact that both parties were married to other people. This conduct contravened arts 4, 5 and 22(2) of Aceh Qanun No. 14 of 2003 on Close Proximity. After engaging in sexual relations, both parties were brought by several other witnesses to the local Simeule Timur police station.

The court found that, on the evidence before it, the accused was guilty of khalwat, as prescribed in arts 4, 5 and 22(2) of Aceh Qanun No. 14 of 2003. In sentencing the accused to nine strokes of the cane, it cited Surah Al-Isra' verse 32, which discourages sexual relations out of lawful matrimony (zina). In determining the severity of the sentence, the court noted that the accused:

1. had conducted herself in a manner not consistent with the applicability of Islamic shari'a in Aceh;
2. was already married; and
3. had been carrying on an extra-marital affair with the witness for two years; but
4. had acknowledged her misconduct;
5. regretted her misconduct and vowed not to re-offend;
6. had been cooperative throughout the proceeding and conducted herself appropriately; and
7. was a first-time offender.

The prosecution submitted that, on Saturday 6 December 2014 at approximately 11.00pm, the accused was found in close proximity with a person of the opposite sex out lawful matrimony (khalwat). The prosecution maintained that the accused and witness had engaged in sexual relations with each other, despite the fact that both parties were married to other people. This conduct contravened arts 4, 5 and 22(2) of Aceh Qanun No. 14 of 2003 on Close Proximity. After engaging in sexual relations, both parties were brought by several other witnesses to the local Simeule Timur police station.

The court found that, on the evidence before it, the accused was guilty of khalwat, as prescribed in arts 4, 5 and 22(2) of Aceh Qanun No. 14 of 2003. In sentencing the accused to nine strokes of the cane, it cited Surah Al-Isra' verse 32, which discourages sexual relations out of lawful matrimony (zina). In determining the severity of the sentence, the court noted that the accused:

1. had conducted himself in a manner not consistent with the applicability of Islamic shari'a in Aceh;
2. was already married; and
3. had been carrying on an extra-marital affair with the witness for two years; but
4. had acknowledged his misconduct;
5. regretted his misconduct and vowed not to re-offend;
6. had been cooperative throughout the proceeding and conducted herself appropriately; and
7. was a first-time offender.