By SHEEMA KHAN
Wednesday, January 3, 2001 The Globe and Mail
Two decades ago, the Western press picked up shocking reports about a rape case in rural Pakistan: A blind, 13-year-old female labourer, Safia Bibi, had been gang raped by sons of a wealthy landowner. The rape resulted in pregnancy and a charge of fornication was brought. The local Muslim judge decided on a verdict of 15 lashes, according to his interpretation of Islamic law (sharia). The alleged rapists were freed due to lack of evidence, while the rape victim waited in jail to give birth and then to suffer her punishment.
The account bears a chilling resemblance to the recent news of a sentence handed out in a rural village in the northern Nigerian state of Zamfara. Once again, outraged voices are raised in protest. Yet there are valuable lessons that can be gleaned from the Pakistani case for well-meaning individuals who wish to make a difference in the case of Bariya Ibrahim Magazu, the young woman sentenced to 180 lashes for giving birth out of wedlock.
First, the initial press accounts of the Pakistani incident were wildly exaggerated. Court records show that Safia Bibi was a myopic, unmarried 20-year-old woman -- not a blind 13-year-old -- when she gave birth to a child in 1982. After the birth, Ms. Bibi's father lodged a complaint charging her with fornication. Ms. Bibi testified that she was raped by one man -- not a gang rape, as reported -- and that he was the son of a neighbouring family who owned less than two acres of land.
The judge ruled there was insufficient evidence to convict the rapist; he found that Ms. Bibi's testimony was self-exonerating, and thus inadmissible. He sentenced her to three years imprisonment, 15 lashes, and imposed a fine of 1000 rupees. Before any part of the sentence could be carried out, distorted accounts appeared in local and international media. Not surprisingly, the most ardent critics of sharia were foremost in propagating exaggerated versions, for it suited their ends.
Just as initial reports from Pakistan in the Bibi case were sketchy yet sensational, so, too, are news stories from Nigeria. Little is known about Ms. Magazu; reports of her case have not quoted court records. What is known is that the divisions in this part of Nigeria are deep, sometimes violent -- and some members of the Christian minority in Zamfara may think it is in their own interests to paint the actions of their neighbours in grim tones.
If we can learn anything from that earlier case, it is to filter sensational media reports with a healthy dose of skepticism. At the same time, let us assume that the verdict in the case of Ms. Magazu -- 180 lashes, which could prove fatal -- is an accurate report. Can public outcry make a difference? Already international pressure has prompted the central government of Nigeria to ask for a stay of Ms. Magazu's punishment, while her sentence is "clarified."
Certainly, international protests did make a difference in the case of Safia Bibi. Even though her lawyer had filed an appeal, the Federal Sharia Court of Pakistan called for the case to be reviewed because of the international publicity it had attracted. The court set her free pending the appeal and later ruled that the trial judge had made a mistake in disallowing her statement that she had been raped. It set aside the conviction, and found that under Islamic law, if an unmarried woman delivering a child pleads that the birth was a result of a commission of rape upon her, she cannot be punished.
This decision was consistent with previous interpretations by the Federal Sharia Court of Islamic law regarding cases of adultery or fornication -- namely, if an unmarried woman becomes pregnant or gives birth, and in the absence of circumstantial or corroborative evidence proving deliberate fornication (zina), doubt should go with the claimant. As the Koran clearly states, the proof that zina has occurred requires four eyewitnesses to the act, which must have been committed by a man and a woman not validly married to one another, and the act must have been willfully committed by one or both of the partners.
Proof can also be determined by a confession. But this confession must be voluntary, and based on legal counsel; it must be repeated on four separate occasions, and made by a person who is sane. Furthermore, those who bring a charge of zina against an individual must provide four eyewitnesses. Otherwise, the accuser is then accorded a sentence for defamation (which means flogging or a prison sentence), and his/her testimony is excluded in all future court cases.
Critics of sharia jump to the conclusion that such requirements exclude the possibility of charging an individual with rape because it is so difficult to find eyewitnesses, or for rapists to offer their confession. However, rape and zina are classified differently. The former has less stringent requirements for proof, and can be proven based on the sole testimony of the victim -- providing that circumstantial evidence supports the allegations.
These facts point out the intricate system of checks and balances within sharia that must be met before any sentence is carried out. One wonders if Ms. Magazu has been able to legally appeal of her sentence; if not, the problem lies with the Nigerian state of Zamfara's application of sharia, not with sharia itself. If Ms. Magazu needs money in order to hire legal counsel for an appeal, Canadians can contribute to a legal fund.
But before we rise up in outrage, let us find out more about the system, and work through it. Telling Muslims that they should not apply sharia is neither a wise step, nor a productive one. Appealing to their sense of God-consciousness, and reminding them of the exacting conditions of sharia will be far more respectful.
Let us hope that those who seek to apply sharia in Zamfara do so fully
-- by searching deep into Islamic legal precedence. A cursory approach will lead
to injustice, and possibly the death of an innocent young woman. And that is a
burden no God-fearing Muslim wishes to carry.
Sheema Khan,
a PhD in chemical physics from Harvard, is director and chair of the Council on
American-Islamic Relations/Canada, a group formed to educate institutions and
the public about Islam. The opinions expressed in this article are her own and
do not necessarily represent those of the CAIR.