Zina: The ‘Forgotten Problem’ of the Shari’a in Nigeria
| Author | Timothy Little |
Zina: The ‘Forgotten Problem’ of the Shari’a in Nigeria
Timothy Little
Timothy Little’s paper takes up the vexed and knotted issue of zina laws in Nigeria. Through a
careful tracing of the intertwined histories of Shari’a law and colonial legal structures that persist
to this day, Timothy explores themes of religious identity, tradition, national identity and their
relation to the idea of legality. He characterizes zina as a ‘forgotten problem’, and argues that the
fact that the zina laws, while facially neutral, impact women to a far greater extent, allows the
legal persecution of women to be narrated away as a form of maintenance of cultural norms. He
draws upon themes of Islamic feminism and international solidarity to sketch a way forward in
protecting the rights of women in Nigeria.
- Dr. Mayur Suresh
Lecturer, SOAS School of Law
INTRODUCTION
Muslim men, like men everywhere, are the last to accept that gender inequality is
a social contraption rather than a religious imperative. This is natural n ot only
because men are the ultimate beneficiaries of this inequality, but also only those
who are victims of injustice tend to see it and appreciate the absurdity of
attributing it to God.
1
These words by Sanusi Lamido Sanusi, the crowned Emir of Kano, encompass numerous
aspects of the following Article. Prima facie, they optimistically suggest some of Nigeria’s elite
are willing to speak on gender-inequality; however, this statement is equally symbolic of the
fact that in most communities around the w orld, societal concerns remain predominantly
represented by m en. Moreover, it highlights Islam is not responsible f or patriarchal c ontrol
1
Sanusi Lamido Sanusi , 'Shariah and the Woman Question' (2000)
accessed 15 March 2016.
over women. In truth, it is the long-established universal trend of men, colonising the divine
through male-centric misinterpretations of religious texts that is responsible for the existing
patriarchal power-structures in the 21st century. Lastly, these words suggest that legal change
cannot occur without widespread change to the beliefs and attitudes of all gender-identities;
to not support or accept unjust patriarchal dominance. Therefore, it is submitted that when
beliefs are grounded in habitually patriarchal interpretations of religion, it must be
appreciated the pursuit for legal reform requires a long-term solidarity strategy.
Despite zina being a gender-neutral concept, females from poorer communities remain at most
risk of conviction. Attempting to provide zina with a definition may appear to be a
contradiction in itself. Broadly, classic fiqh (Islamic jurisprudence) uses zina as a term to
describe unlawful sexual activity or adultery. Zina is not defined in the Quran, however the
guilty are subject to pre-determined hadd punishment (God specified) – a married offender is
punished with rajm (death by stoning), and an unmarried offender is punished with 100
lashes. Fiqh provided zina rulings to ensure sexual order and legitimate paternity.
2
Therefore,
the classical rhetoric on zina is a ‘God-given moral stipulation’ that Muslims should attempt
to abide by.
3
Nevertheless, since the advent of the 1999 Constitution of Nigeria, zina has been
legislated in 12 northern Nigerian states, under the ‘Hudud and Hudud-Related Offences’
section of the respective Muslim penal codes.
4
Following promising decisions in shari’a
appellate courts, zina has become the forgotten problem of the Islamic criminal justice system of
Nigeria.
5
Fortunately, there have been no zina convictions for well over a decade. However,
the few promising judgments only established precedents in the respective jurisdictions, and
the relevant legislative provisions remain unchanged. Thus, the law lacks certainty as to
whether zina convictions will appear once again.
The federation of Nigeria and all of its states are theoretically secular, as per the Constitution.
6
Some post-colonial scholars argue the principle of secularism is poorly adhered to in a
2
Ziba Mir-Hosseini , 'Criminalising sexuality: Zina laws as violence against women in Muslim contexts' [2011] SUR 7, 18.
3
Ziba Mir-Hosseini and Va nja Hamzic , Control and Sexuality: Revival of Zina Laws in Muslim Contexts (1st edn, Women
Living Under Muslim Laws 2010) 7.
4
All share structural similarities, save for Niger state. Niger state enacted the 2000 Niger State Penal Code (Amendment) Law.
The Act also provides for zina and zina-related offences, however it is defined and grouped in a different structure to the other
states. Nonetheless, the zina provisions of Niger state are equally as barbaric as its counterparts.
5
Widespread international attention on zina in Nigeria has also ceased, partly because of other concerns in the region, e.g. the
increasing prominence of the Islamic fundamentalist organisation, Boko Haram.
6
Constitution of the Federal Republic of Nigeria 1999, Article 10: ‘[t]he Government of the Federation or of a State shall not
adopt any religion as State Religion’.
significant part of the country because it is an imposed Western ideology.
7
Thus, it appears
reasonable to firstly consider the status of Islamic law and gender roles in pre-colonial,
colonial and post-colonial Nigeria. This S ection will argue that colonial interference resulted
in an oppression of the Muslim identity which continues in the present-day. This has created
space for the ruling elite to use Islam as a method of over-glorifying the region’s pre-colonial
history,
8
whilst holding the concept of ‘culture’ as a weapon that affirms patriarchal practices
and ideologies.
9
Whilst it is accepted that legal pluralism underpins all of Nigerian history in
some way, greater emphasis will be placed on a model of pluralist legal theory in the second
Section. This will allow for an in-depth analysis of the Muslim populace’s longstanding
struggle for autonomy over shari’a, and how its eventual implementation occurred with
legitimacy.
During discussion of Islamic criminal law in contemporary Nigeria, and its explicit human
rights breaches, it will be questioned whether the ‘ shari’a implementation’ movement was
actually intended to reflect the social climate of the Muslim community. Or alternatively,
whether it was intended to protect the ruling class’ political interests and power. The specific
zina laws under the new Muslim penal codes will be examined in the third Section.
Consideration will be given to how the gender-neutrality principle behind zina has been
largely overlooked by the courts. Attention will then turn to, inter alia, patriarchal Sections of
9th century Maliki fiqh that have been interpreted in a way that does not safeguard female
rape victims from facing zina convictions. The fourth Section submits that it is possible to
change zina laws through a solidarity strategy that includes formal law reform, informal changes
to communal power-structures, and reorienting international pressures. This article will
conclude by amalgamating these arguments to support the overall argument; Nigerian zina
laws must be incrementally dismantled in a way that ensures fem ales are not subjugated to
live under patriarchal interpretations of shari’a, and forces Nigeria to fulfil its d omestic and
international human rights obligations.
7
Leela Fernandes , Transforming Feminist Practice: Non-Violence, Social Justice and the Possibilities of a Spiritualized
Feminism (1st edn, Aunt Lute Books, San Francisco 2003) 102.
8
Andy Greenwald , 'Postcolonial Feminism in Anthills of the Savannah' (2012)
9
Ethel Crowley , 'Third World Women and the Inadequacies of Western Feminism' (2014)
December 2015.
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