Gender Justice in Islamic Law: Homicide and Bodily Injuries 9781509915095, 9781509915118, 9781509915088

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GENDER JUSTICE IN ISLAMIC LAW This book seeks to interrogate the classical fiqh formulation on gender and ­homicide with a view to exploring further the debate on whether the so-called gender injustice in Islamic law is a human creation or attributable to the divine sources of the Qur’an and Sunnah. The study is in response to the increasing criticism of the Islamic criminal law regime and the accusation that it discriminates on the basis of gender. It argues that any attempt to critique a religious question through the lens of traditional Western human rights ideals would be resisted by the vast majority of Muslims. An examination of the question and any suggested solutions offered would be much more effective if situated within the system they identify with; that is to address the question of gender justice deficit from within the Islamic legal tradition. Focusing on Nigeria and Pakistan, the book achieves this by drawing on classical fiqh literature, contemporary literature, legislative sources and relevant case law.

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Gender Justice in Islamic Law Homicide and Bodily Injuries

Musa Usman Abubakar

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Musa Usman Abubakar, 2018 Musa Usman Abubakar has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/opengovernment-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Abubakar, Musa Usman, 1969- author. Title: Gender justice in Islamic law : homicide and bodily injuries / Musa Usman Abubakar. Description: Oxford : Hart Publishing, 2018.  |  Based on author’s thesis (doctoral - University of Warwick, 2012) issued under title: Gender justice and Islamic laws of homicide and bodily hurt of Pakistan and Nigeria.  |  Includes bibliographical references and index. Identifiers: LCCN 2018000164 (print)  |  LCCN 2018000913 (ebook)  |  ISBN 9781509915101 (Epub)  |  ISBN 9781509915095 (hardback : alk. paper) Subjects: LCSH: Offenses against the person (Islamic law)  |  Women (Islamic law)  |  Restorative justice—Religious aspects—Islam.  |  Violent crimes—Law and legislation—Pakistan.  |  Sex discrimination in criminal justice administration— Pakistan.  |  Violent crimes—Law and legislation—Nigeria.  |  Sex discrimination in criminal justice administration—Nigeria. Classification: LCC KBP4048 (ebook)  |  LCC KBP4048 .A28 2018 (print)  |  DDC 345/.167025081—dc23 LC record available at https://lccn.loc.gov/2018000164 ISBN: HB: 978-1-50991-509-5 ePDF: 978-1-50991-508-8 ePub: 978-1-50991-510-1 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

To my mother, Hajiya Hawwa’u Abubakar and my daughters Safiyyah, Fatima and Aisha

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PREFACE

Sharīʿah is based on wisdom and achieving people’s welfare in this life and the afterlife. Sharīʿah is all about justice, mercy, wisdom and good. Thus any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the sharīʿah, even if it is claimed to be so according to some interpretation. Ibn Qayyim Al-Jawzī (d 751 AH/1350 AD)

The thought of writing this book began in 2003 when I was studying for an LLM in Law in Development at the University of Warwick, United Kingdom. The period coincided with the time the international community beamed its searchlight on some states in Northern Nigeria as a result of the re-introduction of sharīʿah which Western states claimed was gender discriminatory. In particular, the flogging of Bariya Magazu1 and sentence to death by stoning (rajm) passed against Amina Lawal2 and later Safiya Hussaini3 for committing pre/extra-marital sex (zina) while their male collaborators were left off the hook had shocked the world. People began to raise questions: What sort of system is this? How will it spare the males and punish the females, when it takes two to tango? Why must the male culprit go scot-free ‘without requesting a DNA test to confirm paternity?’4 Why should consenting partners be punished for zina: a ‘victimless offence’?5 As a result of this, Islamic criminal law was declared iniquitous, discriminatory and misogynistic.6 A heated debate ensued in our Criminal Justice and Social Transitions module, and it was obvious that the tool used in the analysis generally was the international and regional human right conventions, and of course the culture of the immediate environment, the United Kingdom. I pleaded with my colleagues to appreciate the multi-layered nature of Islamic law, and urged them to view these cases from within the parameters of Islamic law. My belief was that a system is better

1 

Police v Bariya Ibrahim Magazu (2001).

2 KTS/SCA/FT/86/2002. 3 

Safiya Husaini T/Tudu v The Attorney General of Sokoto State (2002). Tyus, ‘Going Too Far: Extending Sharia Law in Nigeria from Personal to Public Law’ (2004) 3 Washington University Global Studies Law Review 199. 5  AE Mayer, ‘Reinstating Islamic Criminal Law in Libya’ in DS Dwyer (ed), Law and Islam in the Middle East (New York, Bergin and Garvey Publishers, 1990) 99–114 at 113. 6  BBC News, ‘Debate Rages over Women and Sharia’ (11 June 2003) available at http://news.bbc. co.uk/2/hi/2977446.stm. 4  J

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understood if it is assessed by the standards it sets for itself. Unfortunately, there was lack of capacity on the part of most of my colleagues to access and study the classical fiqh literature for a thorough and fair assessment of the Islamic criminal regime. The few available English books on Islamic criminal law were of little help in going to the nitty-gritty of the law. When asked to submit a dissertation topic for our course, I decided to give the debate on sexual offences and gender in Islam a try. However, there was dearth of literature in our library so I had to procure an electronic program. Jāmiʿ al-Fiqh al-Islāmi (Encyclopaedia of Islamic Jurisprudence)7 containing 100 works of major fiqh literature. My interaction with this literature then made me appreciate the wisdom and industry of the classical Islamic jurists in their analysis of burning issues. This aroused my interest, which was encouraged by my supervisor, Professor Shaheen Sardar Ali, who suggested that I look into the possibility of furthering this research to cover other issues with implications across genders. While contemplating on this, I discovered there is a huge gulp of uncertainty in the area of homicide, bodily injuries and gender in fiqh literature, as well as the practical application of the law in many Muslim states. For instance, the position of all the four Sunni schools of thought is that a man is liable to execution for killing a woman, but her monetary compensation (diyah) is half that of a man. But under the Shiʿites School, a woman is not equated to a man in any respect. He is not liable to execution for causing her death. His execution is only possible where her close relatives are ready to make remittance of half of a man’s diyah to his own relatives. Obviously, whoever reads the fiqh literature and finds this will remain speechless and probably think it is a divinely ordained prescription, hence final and immutable. My confusion was further exacerbated by the fact that the modern sharia-influenced penal codes of Nigeria and Pakistan have been couched in a ­gender-neutral fashion I now began to ask myself: why have they departed from the classical fiqh prescriptions? Is this because these prescriptions are against the dictates of the Holy Qur’an and the Sunnah of the Prophet Muhammad (PBUH) or that it was made gender neutral so as not to affront the constitutional provisions? Unfortunately, there was hardly any significant debate on this in the legislative houses. Of course, if the intention was to conform to the constitutional provisions against gender discrimination, the Islamicity of the codes will be questioned. I now ventured into this voyage to at least discover whether these prescriptions, among other things, are in concordance with the Qur’an and Sunnah. Of course, prescriptions like these are endemic in many Muslim jurisdictions including Egypt, Iran, Jordan, Lebanon, the Northern states of Nigeria, Pakistan, Qatar and Saudi Arabia. In some of these states, gender disparity remains the norm. This has led some scholars to claim there is a gender justice deficit in the Islamic criminal law regime. To many Muslims, any critique on the treatment of women in their jurisdictions is considered an affront to the core values of Islam.

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Version 2.0 (2000), Harf Information Technology, Cairo.

Preface

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In other quarters, any adverse prescription that demeans women is simply attributed to Islam, notwithstanding the human prejudices in interpreting the divine sources of Islam. There appears to be no clear line drawn demarcating the divine and human components of sharīʿah, and this makes it very easy to clothe any fiqh prescription with an aura of immutability, even though it is mere human opinion. Therefore, the overriding objective of this book is to ascertain whether the so-called justice deficit across genders is intrinsic to the divine or is a mere human interaction with the divine sources. To achieve this, it seeks to engage the normative and structural dynamics of the Islamic criminal justice system, and to interrogate classical fiqh prescriptions in homicide and bodily injuries across genders and to demonstrate, using principles established under the law, that most of the stipulations with gender implications emanate from the non-divine sources. That rubber-stamping the opinions of classical jurists, by ignoring the context and sealing them with stamp of finality, has been responsible for the continuity of gender concerns under this legal regime. It argues that modern Muslim scholars will be doing great disservice to Islam if they gullibly apply the classical fiqh literature without assessing them with the divine sources of Islamic law. The book is in two parts. Part I deals with the theoretical perspective of the topic. Chapter 1 starts with conceptualising justice by distinguishing the W ­ estern perspective from the Islamic perspective, showing the commonalities between the two, which is that in every society justice is a virtue human society aspires to achieve. It notes that a human being is likely to be influenced by other factors that will make his determination of justice subjective and self-serving. The point of departure between the Western and Islamic perspective of justice is that the latter does not leave humans alone to determine what is just and fair, but has set some criteria for them for engaging in such endeavour. Chapter 2, which serves as the theoretical framework of the book, focuses on drawing a dividing line between the divine and non-divine sources of sharīʿah such that the immutable sources are identified and treated appropriately, and the non-divine sources are declared not immutable thus subject to changes regard being had to time and generation. The robust techniques of resolving contradictory narratives developed by Muslim jurists are equally discussed, and it is noted that conciliation was identified as the major technique adopted by the Muslim jurists for abundant caution. The book particularly stresses in the subsequent chapters that the two seemingly contradictory narratives that gave birth to the half diyah stipulation for women might have been wrongly reconciled. Chapter 3 examines the core issue of this book which is the classical fiqh discourse on homicide, bodily injuries across genders. The chapter extensively discusses the position of each of the four Sunni schools of thought and the authority they relied upon. It also demonstrates the inter-madhhab­ argumentation on the issues of gender in question to drive home the point that most of the controversial issues that pose gender concern emanated from the human engagement with the divine sources. To demonstrate that a human being is capable of establishing justice, chapter 4 discusses the institution of ʿāqilah, a concept of pre-Islamic origin, which Muslim jurists ingeniously employed to balance the

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gender disparity in diyah to ensure that women are not burdened to pay diyah along with the male members of their clan. Even where she is the culprit, she will only be liable to pay the least compensation. Chapter 5 mainly examines the various arguments put across to justify the diyah disparity such as the economic argument of biological determinism and the much-touted female intellectual inferiority, and the counter-arguments propounded by some contemporary jurists. Part I of the book concludes with chapter 6, which highlights why al-jamʿ wa’l-tawfīq ought not to be used in reconciling conflicting narrations of Muʿādh and ʿAmr b Ḥazm. The chapter uses historical factors to show that elimination (al-tarjīḥ) and abrogation (al-naskh) methods are the appropriate methods to be used in the circumstances. Part II of the book deals mainly with the practical application of the law. ­Chapters 7 and 8 capture the Pakistan experience highlighting the evolution of the Qiṣāṣ and Diyah Ordinance and its interaction with culture and the bequeathed English legal system, and which was detrimental to women. The chapters further demonstrate how judges assisted in clothing cultural beliefs with Islamic regalia by their selective reference to the primary sources of sharīʿah. Chapters 9 and 10 on Nigeria take a similar tone. The epilogue concludes.

ACKNOWLEDGEMENTS

Gratitude is due to Allah for making it possible for me to accomplish this ­lifetime dream. I wish to place my sincere gratitude and appreciation for the valuable contributions made by a number of individuals and institutions too numerous to mention in making this work a huge success. I am greatly indebted to Professor Shaheen Sardar Ali for her guidance, luminosity and thought-provoking comments. She has been meticulous in thoroughly scrutinising my thesis, and for encouraging me to transform it into a book. This is because of her belief that the work will be very useful to policy-makers, legislators and women’s rights advocates the world over. I wish to also register my gratitude to the Vice Chancellor, Bayero University, Kano, Professor Muhammad Yahuza Bello for his encouragement in seeing to the completion of this work. Professors Phillip Ostien, Abdul Paliwala, Awwalu Hamisu Yadudu, Muhammad Tabiu, Nasir A Ahmad, Rabiu Sani Shatsari, ­Mamman A Lawan, Sagir Abbas and Yusuf Adamu will not escape mention. My Head of Department, Dr Usman Muhammad Shuʿaib, has exhibited passion for this project. His effort to secure funds, albeit unsuccessfully, to enable me to travel in search of more materials will forever remain indelible in my memory. This work will not be complete without mentioning my former colleague Dr Shahbaz A Cheema, Asst Professor, University of the Punjab, Pakistan, and my colleague and former Sub-Dean (facilities), Mallam Muhammad Bello for proofreading this work with passion, zeal and dedication. Bar. Isa Hamza Isma’il, Mr Ahmad Garba, Dr Ibrahim Muhammad Nuruddeen, Dr Mansur Isa Yelwa and Dr Ahmad Alkhamees deserve special mention for providing me with access to many databases and materials. My sincere regards to my mother, Hajiya Hawwa’u Abubakar, my siblings and other relatives for their indulgence and well wishes. I am also thankful to my wife, Saadatu and our children, Abdussamad, Safiyya, Fatima, Muhammad Rayyan and Aisha for their moral support, understanding and patience. I wish to further thank Sinead Moloney, Emily Braggins and the entire team of Hart Publishing, including Prof Robert Crossley and the anonymous reviewers for their constructive comments and critique. Indeed, their contribution has enhanced the quality of the work. Lastly, I appreciate the support of my uncles, Dr Garba Nadama and Alh Usman Abubakar, and that of my cousins Dr and Mrs Ahmad Rufai Nadama and Mr and Mrs Ahmad Rufai Garba and a host of others for their continuous support and encouragement.

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CONTENTS

Preface���������������������������������������������������������������������������������������������������������������������� vii Acknowledgements���������������������������������������������������������������������������������������������������� xi Notes on Transliteration���������������������������������������������������������������������������������������� xvii List of Acronyms�������������������������������������������������������������������������������������������������������xix Table of Cases�����������������������������������������������������������������������������������������������������������xxi Table of Primary Legislation��������������������������������������������������������������������������������� xxiii Table of Secondary Legislation��������������������������������������������������������������������������������xxv List of Reports��������������������������������������������������������������������������������������������������������xxvii

PART I: THEORETICAL PERSPECTIVE Classical Discourse on Homicide, Bodily Injuries and Gender 1. Gender Justice in Islam��������������������������������������������������������������������������������������3 I. Introduction��������������������������������������������������������������������������������������������3 II. Concept of Justice�����������������������������������������������������������������������������������3 III. Justice in Islamic Jurisprudence�������������������������������������������������������������6 2. The Dividing Line between the Divine and Human���������������������������������������10 I. Introduction������������������������������������������������������������������������������������������10 II. Conceptualising the Term Sharīʿah�����������������������������������������������������10 III. Sources of Islamic Law�������������������������������������������������������������������������14 A. Divine Components����������������������������������������������������������������������14 B. Human Components��������������������������������������������������������������������17 IV. Dealing with Contradictory Narratives�����������������������������������������������19 V. Conclusion��������������������������������������������������������������������������������������������21 3. Homicide, Bodily Injuries and Gender in Fiqh Literature�����������������������������22 I. Introduction������������������������������������������������������������������������������������������22 II. Homicide in Pre-Islamic Arabia����������������������������������������������������������22 III. From Vengeance Spree to Just Retribution�����������������������������������������23 IV. Retribution for Loss of Life������������������������������������������������������������������25 V. Compensation for Loss of Life�������������������������������������������������������������27 VI. Retribution in Bodily Injuries��������������������������������������������������������������29 VII. Compensation for Bodily Injuries�������������������������������������������������������35 VIII. Conclusion��������������������������������������������������������������������������������������������40

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4. Juristic Use of ʿĀqilah in Balancing Gender Disparity�����������������������������������41 I. Introduction������������������������������������������������������������������������������������������41 II. Development of ʿĀqilah before Islam�������������������������������������������������41 III. Classical Fiqh Discourse on ʿĀqilah����������������������������������������������������43 IV. Extent of ʿĀqilah’s Obligation��������������������������������������������������������������46 V. Rethinking ʿĀqilah in the Modern Era������������������������������������������������48 VI. Woman’s Individuality as Property Owner����������������������������������������50 VII. ʿĀqilah Based on Migrant/Helper Dichotomy������������������������������������52 VIII. ʿĀqilah Based on the Dīwān System����������������������������������������������������52 IX. Contemporary Relevance of ʿĀqilah���������������������������������������������������55 A. Citizenship Solidarity: A New Paradigm�������������������������������������58 X. Conclusion��������������������������������������������������������������������������������������������62 5. Arguments and Counter-arguments on Asymmetric Diyah across Genders�������������������������������������������������������������������������������������������������������������64 I. Introduction������������������������������������������������������������������������������������������64 II. Testimony and Share of Inheritance as Markers of Inferiority������������������������������������������������������������������������������������������64 III. Female Intellectual Inferiority Argument�������������������������������������������71 IV. Economic Argument����������������������������������������������������������������������������74 V. Conclusion��������������������������������������������������������������������������������������������76 6. Addressing the Conflicting Narratives Using Elimination (Al-tarjīḥ) and Abrogation (Al-naskh) Methods��������������������������������������������������������������77 I. Introduction������������������������������������������������������������������������������������������77 II. Qurʾān on Homicide and Bodily Injuries�������������������������������������������77 III. Addressing the Seeming Discrepancy in the Qur’anic Verses������������79 A. Sequencing Approach�������������������������������������������������������������������79 B. Historical Approach���������������������������������������������������������������������80 C. Contextual Approach�������������������������������������������������������������������82 IV. Prophetic Sayings in Murder and Bodily Injuries Across Genders�������������������������������������������������������������������������������������������������83 V. Creating a Chronology between the Narratives����������������������������������88 VI. The Half Diyah Narration in the Earlier Hadith Literature���������������92 VII. The ‘One Third’ Formula in Bodily Injuries���������������������������������������94 VIII. Opinion of Individual Companions as Source of Half Diyah Stipulation���������������������������������������������������������������������������������������������95 IX. Conclusion������������������������������������������������������������������������������������������104 PART II: CASE STUDIES Contemporary Application of Islamic Legal Principles on Homicide and Bodily Injuries in the Muslim World 7. Case Study of Pakistan�����������������������������������������������������������������������������������109 I. Introduction����������������������������������������������������������������������������������������109

Contents

 xv

II. Overview of Pakistan’s Constitutional and Legal Development�������������������������������������������������������������������������������������109 III. Evolution of the Qiṣāṣ and Diyat Ordinance����������������������������������112 IV. Role of the Council of Islamic Ideology������������������������������������������114 V. Impact of Gul Hassan’s Case������������������������������������������������������������118 VI. Overview of Qiṣāṣ and Diyah Provisions����������������������������������������119 A. Gender Neutrality in Classification of Murder Offences�������120 B. Women can Waive or Compound Qiṣāṣ��������������������������������121 VII. Emerging Gender Issues under the Ordinance�������������������������������122 A. Parental Relations as Mitigating Factor�����������������������������������123 B. Commodification of Women in the Name of Badl-al-ṣulḥ���������������������������������������������������������������������������129 C. Disbursement of Diyah Proceeds according to Inheritance Rules������������������������������������������������������������������132 D. Absence of ʿĀqilah Institution in the Code�����������������������������137 VIII. Conclusion����������������������������������������������������������������������������������������141 8. Legitimising Gender Violence through Judicial Process����������������������������142 I. Introduction��������������������������������������������������������������������������������������142 II. Judicial Attitude to Honour Crimes������������������������������������������������142 III. Provocation under the Pre-1990 Legal Framework������������������������144 IV. Judicial Legislation in the Post 1990 Regime����������������������������������146 V. Further Step to Protect Women against Honour Crimes��������������152 VI. No Religious Justification for Honour Killing��������������������������������154 VII. Debunking other Arguments Justifying Honour Killing���������������161 VIII. Conclusion����������������������������������������������������������������������������������������163 9. Case Study of Nigeria������������������������������������������������������������������������������������165 I. Introduction��������������������������������������������������������������������������������������165 II. Historical Background of Nigeria����������������������������������������������������165 III. The Legal Framework of Qiṣāṣ and Diyah��������������������������������������169 A. Gender Equality in Homicide and Bodily Injuries�����������������173 B. Equal Right to Legal Redress in Homicide Cases��������������������177 C. Removal of Defence of Grave and Sudden Provocation��������179 IV. Provisions of the Code Detrimental to Women�����������������������������182 A. Hurt Caused by Husbands Not Punishable����������������������������182 B. Non-recognition of the Role of ʿAqilah����������������������������������185 V. Conclusion����������������������������������������������������������������������������������������186 10. Judicial Insensitivity to Gender Issues���������������������������������������������������������187 I. Introduction��������������������������������������������������������������������������������������187 II. Structure of Courts in Nigeria���������������������������������������������������������187 III. Consequences of Undermining State Legislation���������������������������190 A. Non-involvement of Āqilah�����������������������������������������������������192 B. Exhibition of Jurisdictional Hunger����������������������������������������192

xvi 

Contents IV. Uncertainty of the Amount of Diyah����������������������������������������������195 V. Breaking the Jinx: Hope and Despair����������������������������������������������196 A. The Kano Initiative: Kano State v Lami Adamu����������������������198 VI. Conclusion����������������������������������������������������������������������������������������201

Epilogue�������������������������������������������������������������������������������������������������������������������203 Glossary�������������������������������������������������������������������������������������������������������������������207 Bibliography������������������������������������������������������������������������������������������������������������212 Index�����������������������������������������������������������������������������������������������������������������������221

NOTES ON TRANSLITERATION

Table 1:  Consonants Arabic

Roman

Arabic

Roman

‫ب‬

b

‫ط‬

ṭ

‫ت‬

t

‫ظ‬

ẓ

‫ث‬

th

‫ع‬

ʿ

‫ج‬

gh

j

‫غ‬

‫ح‬

ḥ

‫ف‬

f

‫خ‬

kh

‫ق‬

q

‫د‬

d

‫ك‬

k

‫ذ‬

dh

‫ل‬

l

‫ر‬

r

‫م‬

m

‫ز‬

z

‫ن‬

n

‫س‬

s

‫ه‬

h

‫ش‬

sh

‫و‬

w

‫ص‬

ṣ

‫ء‬

ʾ

‫ض‬

ḍ

‫ي‬

y

Table 2:  Short and Long Vowels Arabic

Roman

 َ

A

 ُ

U

 ِ

I

Ύ˰

Ā

‫و‬ ϲ˰

Ū Ī

xviii 

LIST OF ACRONYMS

AD: AH: ALD: CFRN: CLR: FSC: KLR: LPELR: LRNN: MLD: NCLR: NNLR: NRNLR: NWLR: PBUH: PCrLJ: PLD: PLJ: SBLR: SC: SCMR: SQLR: WACA: YLR:

anno Domini (in the year of our Lord) After Hijra Annual Law Digest Constitution of the Federal Republic of Nigeria Criminal Law Report Federal Supreme Court of Nigeria Karachi Law Reports Legalpedia Electronic Law Report Law Report of Northern Nigeria Monthly Law Reports Nigerian Constitutional Law Report Northern Nigerian Law Report Northern Region of Nigeria Law Report Nigerian Weekly Law Report Peace Be Upon Him Pakistan Criminal Law Journal Pakistan Legal Decisions Pakistan Law Journal Sindh Balochistan Law Reporter Supreme Court Supreme Court Monthly Review Supreme Court Quarterly Law Report West African Court of Appeal Yearly Law Reports

xx 

TABLE OF CASES

Nigeria Abubakar Faransi v Habsatu Noma (2007)10 NWLR (pt 1041) 202��������������������������������196 Ado v Dije (1984) NCLR 260�����������������������������������������������������������������������������������������������201 Ahmadu Makeri Tawo v Komishina Muputa Butoko LRNN 2010, 66�����������������������������196 Alh Musa Gangare v Adamu Aliyu CR/TS/24/2000 (unreported)������������������������������������190 Alhaji Abdu Mai Da Ura v Garba Bagobiri Tudun-Iya CA/K/320/S/2003 (unreported)���������������������������������������������������������������������������������������196 Alhaji Aminu Haruna and Alhaji Yusuf Dan Hausa v Umar Suleiman and Attorney General Zamfara State (2014) 2 SQLR pt IV, 521–42.�����������������������������196 Alhaji Ila Alkamawa v Alhaji Hassan Bello & Anor (1998) 8 NWLR (pt 561)173������������176 Alhaji Yau Marrabar Kankara v Da’awah Committee KTH/MF/6CA/2001 (unreported)�����������������������������������������������������������������������������������196 Amina Lawal v the State KTS/SCA/FT/86/2002 (unreported)�������������������������������������������� vii Bashir Gidan Kanawa v Alhaji Sani Maikaset (2007) 10 NWLR (pt 1042) 283��������� 196–97 Bornu NA v Magudama Abatcha WAC 2326 (unreported)����������������������������������������������179 COP v Mallam Kasimu Umar & 111 Others CA/S/71/2014 (unreported)������������������������196 Fagoji v Kano Native Authority (1957) NRNLR 84 FSC����������������������������������������������������180 Garba Borgu Fada v Aliyu Ibrahim (2015) LPELR-24449��������������������������������������������������196 Garba Maitangaram v Abdullahi Mai Taxi, BOM/5A/2002 (unreported)������������������������196 Hassi Ado Bakin Kaba v Ado Bakin Kaba, CR/TS/22/2000 (unreported)������������������ 193–94 Ibrahim Haruna Kuta v Ahmadu Galadima LRNN 2004, 398�������������������������������������������196 Jalo Tsamiya v Bauchi Native Authority (1957) NRNLR73 FSC���������������������������������������180 Kano State v Lami Adamu Suit No K/42c/2010 (ongoing)��������������������������������������� 198–201 Mallam Mamman Tungar Maizabo and others v Sokoto Native Authority FSC/5/1957����������������������������������������������������������������������������������������������� 180–81 Police v Bariya Ibrahim Magazu (2001) (unreported)�������������������������������������������������������� vii Safiya Husaini T/Tudu v. The Attorney General of Sokoto State (2002) (unreported)������������������������������������������������������������������������������������������������� vii Tsofo Gubba v Gwandu NA (1947) 12 WACA 141����������������������������������������������������180, 200 Pakistan Abdul Zahir and Anor v The State (2000) SCMR 406��������������������������������������������������������149 Abid Hussain v The Chairman, Pakistan Bayt-al-Mal PLD (2002) 482 Lah���������������������139 Ali Muḥammad v Ali Muḥammad (1996) PLD 274���������������������������������������������148–49, 161 Allah Ditta v The State (2002) PLD 406 Lah�����������������������������������������������������������������������140 Asiq Husain v Abdul Hameed (2002) PCrLJ 859 Lah��������������������������������������������������������150 Attorney General Pakistan and Anor v NWPF Government and Others (1990) PLD 1172 SC�������������������������������������������������������������������������������������119

xxii 

Table of Cases

Dawar v The State (1991) MLD 1864����������������������������������������������������������������������������������122 Faqirullah v Khalil-uz-Zaman (1999) SCMR 2203�������������������������������������������������������������124 Ghulam Ali v Mst Ghulam Sarwar Naqvi (1990) PLD 1 SC����������������������������������������������122 Ghulam Farid v The State (1997) PCrLJ 141 Lah���������������������������������������������������������������161 Ghulam Muhammad PLD 1976 SC 241������������������������������������������������������������������������������145 Ghulam Yaseen and 2 ors v The State (1994) PLD 392����������������������148, 154, 156, 158, 160 Government of Punjab, Lahore v Abid Hussain and Others (2007) PLD 315 SC������������139 Gul Hassan v The Government of Pakistan and Another (1980) PLD 1 Pesh������������������113 Kamal v The State (1977) SC 153�����������������������������������������������������������������������������������������143 Khalil-uz-Zaman v The Supreme Appellate Court (1994) SC 885������������������������������������124 Manzoor Hussain v The State (1994) SCMR 1327�������������������������������������������������������������122 Muḥammad Akram Khan v The State (2001) PLD 96 SC��������������������������������������������������149 Muhammad Arif v The State (1999) MLD 2271���������������������������������������������������������� 139–40 Muḥammad Imran and Anor v The State (2008) YLR 1290 Lah���������������������������������������153 Muḥammad Ishaq v The State (1992) PLD 187 Pesh�������������������������������������������������143, 151 Muhammad Nawaz v The State (1992) PCrLJ 1664�����������������������������������������������������������122 Muhammad Rafique v The State (1993) PCrLJ 1403���������������������������������������������������������123 Muḥammad Saleem v The State (2002) PLD 558 SC���������������������������������������������������������149 Muḥammad Sharif v The State (1987) PLD 312 Lah����������������������������������������������������������146 Muḥammad Siddique v State (2002) PLD 444 Lah����������������������������������������������143, 150–51 Muhammad Yaqub v The State (1991) MLD 2408������������������������������������������������������������122 Mukhtar Ahmad v The State (1985) PCr LJ 1273 Lah��������������������������������������������������������145 Naheed Hussain v The State (1992) PCrLJ 982�����������������������������������������������������������143, 151 Nasir Khan v The State (2003) YLR 727����������������������������������������������������������������������� 127–28 Nawab v The State (1982) PLD 446 SC�������������������������������������������������������������������������������143 Nisar v The State (1994) PCrLJ 1587�����������������������������������������������������������������������������������122 Parvez v The State (1992) PCrLJ 830�����������������������������������������������������������������������������������122 Pehlewan v the State (2001) PLD 88 Quetta���������������������������������������������������������123, 150–51 Sadar Khan v The State (2002) (unreported)��������������������������������������������������������������130, 139 Sanaullah v The State (1991) PLD 186 FSC������������������������������������������������������������������������124 Shabbir Ahmad v The State (1997) PCrLJ 1920������������������������������������������������������������������124 Sher Ali v The State (1985) PCrLJ 2790 Lah�����������������������������������������������������������������������145 State v Abdul Waheed alias (1992) PCrLJ 1596����������������������������������������������������������147, 159 State v Muḥammad Hanif and 5 others (1992) SCMR 2047��������������������������������143, 147–48 State v Shahzukh Jatoi (2014) (unreported)�����������������������������������������������������������������������122 Yara v State (1992) SCMR 1283�������������������������������������������������������������������������������������������129 Zainul Rehman v the State (2001) SCMR 1405������������������������������������������������������������������127 Zulfiqar Ali v the State (2006) MLD 1676���������������������������������������������������������������������������153

TABLE OF PRIMARY LEGISLATION

Nigeria Legal Aid Council Act Cap L9 Laws of the Federation of Nigeria, 2004 (as amended)��������������������������������������������������������������������������������������������������������������60 Niger State Penal Code (Amendment) Law, 2001, Niger State Gazette No 8, vol 25, 9 March 2000, B29–B36�����������������������������������������������������������������������������168 Penal Code Law (1960), Cap 89, Laws of Northern Nigeria, 1963����������������������������179, 181 Penal Code Law, Cap P3 Laws of Jigawa State of Nigeria, 2012�����������������������������������������179 Sharia Penal Code, 2005 (Zamfara, Nigeria)�������������������������������������������������������������������������13 Sharia Criminal Procedure Code, Laws of Zamfara State of Nigeria No18 of 2000���������189 Sharia Penal Code, 2014 Niger State Gazette No 13, vol 19, 18 March 2014��������������������168 Sharia Criminal Procedure Code Law, 2014 Niger State Gazette No 14, vol 19, 18 March 2014.�����������������������������������������������������������������������������������������168 Pakistan Minimum Wages for Unskilled Workers (Amendment) Act, 2016����������������������������������138 Pakistan Insurance Ordinance, 2000�������������������������������������������������������������������������������������58 Pakistan Penal Code (Amendment) Act, 2010��������������������������������������������������������������������139 Pakistan Penal Code www.pakistani.org/pakistan/legislation/1860/ actXLVof1860.html����������������������������������������������������������������������������������������������������������195 Speedy Trial Act, 1992����������������������������������������������������������������������������������������������������������124 The Constitution (Eighteenth Amendment) Act, 2010������������������������������������������������������109 The Criminal Law (Amendment) (Offences in the Name or on pretext of Honour) Act, 2016�����������������������������������������������������������������������������������������������120, 153 Others Indian Independence Act, 1947, Office of Public Section Information, United Kingdom���������������������������������������������������������������������������������������������������������������109

xxiv 

TABLE OF SECONDARY LEGISLATION

Government of Pakistan, Finance Division, Internal Finance Wing, Notification of Diyat for the Financial Year 2016–17����������������������������������������������������������������������������138

xxvi 

LIST OF REPORTS

Report of Bauchi State Sharia Implementation Committee. Report of the Commission Appointed to Enquire into the Fears of the Minorities and the Means of Allaying them, 1958 (otherwise known as the Willink Commission) available at www.adakaboro.org/thewillinkcomm. Report of the Panel of Jurists Appointed by the Northern Region Government to Examine the Legal and Judicial Systems of the Region, 1958.

xxviii 

Part I

Theoretical Perspective Classical Discourse on Homicide, Bodily Injuries and Gender

2 

1 Gender Justice in Islam I. Introduction The objective of this chapter is to lay the foundation for the discourse so as to ­facilitate our analysis of the juristic formulations on gender, homicide and other sundry issues. The chapter seeks to argue that there are areas of convergence between the Islamic and Western civilisations just as there are divergences in their approach to justice. The major difference lies in the fact that in the Islamic legal tradition human ability to determine what is just and fair is circumscribed by the divine, while under the Western liberal ideology a human is free to use his own judgement in determining what is just. It will further argue that since their basic premise is different, it will be most unfair to use a one-size-fit-all yardstick to determine the justness or otherwise of every system; and doing so is tantamount to universalising one system as a benchmark for assessing other systems. To appreciate gender justice in Islamic criminal law it is not out of place to examine justice in a broad sense as doing so will enable us to appreciate the Islamic perspective of justice as against the perspectives in other civilisations.

II.  Concept of Justice Justice is a universal concept that defies clear-cut construction. It therefore accommodates varied constructions regard being had to individual perception influenced by the prevailing circumstances or time frame. For example, in the ancient Greek philosophy, varieties of theories were propounded for the concept of justice that would, to a modern man, sound ridiculous. Justice in the understanding of Cephalus does not go beyond speaking the truth and observing one’s contractual obligations such as payment of debt.1 For Polemarchus, justice lies in doing to someone what suits him, or what Bhandari puts as ‘doing good to friends and harm to enemies’.2 A radical theory was suggested by Thrasymachus by his idea of 1 DR Bhandari, ‘Plato’s Concept of Justice: An Analysis’ www.bu.edu/wcp/Papers/Anci/ AnciBhan.htm. 2 ibid.

4 

Gender Justice in Islam

might is right. He was very categorical in maintaining his stance by giving further arguments to concretise his conceptualisation. According to him: ‘injustice, when on a sufficient scale, has more strength and freedom and mastery than justice; and, as I said at first, justice is the interest of the stronger, whereas injustice is a man’s own profit and interest’.3 To him, injustice brings happiness as it is a source of strength. Such characterisation may be appealing to a state given its abundant powers to do and undo. Such ideas of justice characterised the early Athenian state which of course other philosophers like Socrates and Plato found unacceptable. They therefore modified them in a way that was more appealing to the weaker members of the society.4 For instance, Socrates accepted Polemarchus’ idea of assisting friends as justice but disagreed with the second leg of harming enemies. To Socrates a just person would not harm anybody.5 In this conception of justice, Socrates was of the view that superiority, strength and happiness lies in justice while injustice is nothing more than deficiency, ignorance, stupidity and badness.6 Socrates placed justice on a higher pedestal than the cardinal human virtues of Temperance, Wisdom and Courage and maintained that justice in itself is not a virtue but the ‘cause’ and ‘condition’ of the existence of these virtues. It is also the source of their sustainability and perfection. Justice is then the end-product of a well-ordered soul.7 Like Socrates, Plato observed that in all the traditional theories of justice one common denominator is the fact that they give room to personal discretion. They either give the state the power to make laws at will or allow an individual to act as he wishes. This gives the concept of justice a connotation of artificiality. It is something created by humans via social contract, and not something natural and embodied in the human soul.8 He looked at justice from the level of individual and the society at large, arguing that ‘individually, justice is a human virtue that makes himself consistent and good: Socially, justice is a social consciousness that makes a society internally harmonious and good’.9 This, in effect, is a slight deviation from the Socrates view in the sense that he saw justice as something natural and innate. Plato’s idea of gender equality has endeared him to many feminists as the pioneer theorist while others have been sceptical of giving him such an accolade. To some scholars, by using the phrase ‘human nature’ in his analysis, Plato had subsumed the female into ‘male nature’.10 By this he symbolised a sort of equality

3 Plato,

The Republic Bk 1 www.classicreader.com/book/1788/12/. Bhandari, ‘Plato’s Concept of Justice’ (n 1). The Republic (n 3). 6  Bhandari (n 1). 7  Plato (n 3). 8 ibid. 9 ibid. 10  S Forde, ‘Gender and Justice in Plato’ (1997) 92(3) American Political Science Review 657–70 at 657. 4 

5 Plato,

Concept of Justice

 5

between the sexes. This argument has been criticised by quite a number of scholars as mere smokescreen. For instance, Julia Annas argued that the sum total of Plato’s approach reveals that he did not believe in equality between men and women at all but equality was only invoked for convenience because he ‘sees them as a pool of talent that can be put to work for the city’.11 Indeed, Allan Bloom characterises the whole idea of gender equality as discussed by Plato in the ‘Republic’ as simply ‘a type of comedy’.12 Little wonder, Steven Forde describes Plato ‘as a bold precursor to modern feminism, as a ruthless suppressor of women and the female “voice” and as a complete ironist’.13 To scholars who hold the Aristotelian view of proportional justice, justice may not be ‘arithmetical’ but ‘geometrical’ in the sense of giving everyone his due.14 Arithmetical justice assumes that in social and political life all persons shall have equal rights and duties and shall also enjoy equal treatment.15 On the other hand, geometrical justice views persons as unequal in their capacity, as such persons must be seen as unequal, and each is to have rights and duties proportionate to his capacity and needs.16 In other words, justice is only attainable where equals are treated equally. Placing the same duties on all without regard to their capacities may do no more than breed inequality. In the words of Aristotle ‘injustice arises when equals are treated unequally and also when unequals are treated equally’.17 It is argued that this may not be appropriate in the modern quest for equality, as the construction suggests that injustice will not be occasioned when differences are taken into account and yet dealt with differently.18 The above demonstrates that conceptualising justice is a continuing discourse and any single construction may not possibly satisfy all human needs. It shows that human beings are capable of determining what is fair but that such determination is likely to be highly subjective. Existence of justice in any society creates harmony and tranquillity and sustainability. The fact that the endeavour of these philosophers was not supported by any divine commandment did not hinder progress in their search for an appropriate construction of justice. Natural law seems to play an important role in their perception. For instance, the idea of ‘geometrical justice’ advocated by Aristotle as against ‘arithmetical justice’ was premised on the natural flow of events.19

11 ibid. 12 ibid. 13 ibid.

14  H Kelsen, What is Justice? Justice, Law and Politics in the Mirror of Science (Berkeley and Los ­Angeles, University of California Press, 1960) at 135. 15  A Ward, ‘Justice as Economics in Aristotle’s Nicomachean Ethics’ (2010) 4(1) Canadian Political Science Review 1–11 at 2. 16 ibid. 17 Kelsen, What is Justice? (n 14). 18  SWE Goonesekere, ‘The Concept of Substantial Equality and Gender Justice in South Asia’ (2007) http://asiapacific.unwomen.org/en/digital-library/publications/2011/12/the-concept-of-substantiveequality-and-gender-justice. 19  Ward, ‘Justice as Economics in Aristotle’s Nicomachean Ethics’ (n 15) at 2.

6 

Gender Justice in Islam

III.  Justice in Islamic Jurisprudence In the foregoing, we have laid the foundation for the discussion; it is now appropriate to explore the concept of justice as understood in the Islamic legal tradition. This is important in view of the feminists’ critique on whether injustice can be attributed to sharīʿah in view of its divine inspiration. Justice occupies an exalted position, as it is the supreme goal of all revealed religions ie Christianity, Judaism and Islam, otherwise known as Abrahamic faiths.20 ‘Adl’, the Arabic equivalent of the word ‘justice’, is derived from the root word ‘adālah’; and has the same meaning as ‘qisṭ’, ‘istiqāmah’, ‘wasṭ’, ‘naṣīb’, ‘mīzān’ etc.21 Literally, they could mean ‘placing something in its rightful place’, ‘according equal treatment to others’, ‘to balance’, ‘to match’, ‘to equalise’ or ‘reaching a state of equilibrium’.22 A wide array of verses demonstrates this. For instance: ‘We sent aforetime our apostles with Clear Signs and sent down with them the Book and the Balance (of Right and Wrong), that men may stand forth in justice’ (Q57:25). Justice is one of God’s attributes as demonstrated in two of His 99 Beautiful names, ie ‘Al-ʿAdl’ (The Just) and ‘Al-Muqsiṭ’ (The One who establishes justice). This makes justice to Muslims something extraordinary. They are not left alone to determine how ‘justice’, ‘fairness’ and ‘equity’ are achieved. There are various instances where God stipulates what is ‘just’ for human society and human beings have no option but to observe such divine stipulations or decrees. In other instances, humans are allowed to use their rationality in the absence of divine prescription. The Holy Qurʾān declares God as ‘the wisest of judges’ (Q95:8), and enjoins obedience to Him in the following words: ‘Do they then seek after a judgement of (the days of) ignorance? But who, for a people whose faith is assured, can give better judgement than Allāh’ (Q5:50).23 The Qurʾān further demands obedience to God’s commands or prescription when it declares: O ye who believe! Obey Allāh, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allāh and His Messenger, if ye do believe in Allāh and the Last Day: That is best, and most suitable for final determination. (Q4:59)

20  M Kamali, ‘The Sharīʿa: Law as the Way of God’ in VJ Cornell (ed), The Voices of Islam, vol I: ‘Voices of Tradition’ (Westport, CT, Praeger Publishers, 2007) 149–83 at 173. 21 M Khadduri, The Islamic Conception of Justice (Baltimore and London, The John Hopkins ­University Press, 1984) at 6. 22  ibid; M Kamali, Freedom, Equality and Justice in Islam (Cambridge, Islamic Text Society, 2002) at 103. 23 Q5:50.

Justice in Islamic Jurisprudence

 7

Furthermore, an unquestionable reverence is needed in the sense that neither resistance nor consternation shall be exhibited by anybody, even if that prescription does not appeal to him. But no, by the Lord, they can have no (real) Faith, until they make thee judge in all disputes between them, and find in their souls no resistance against Thy decisions, but accept them with the fullest conviction. (Q4:65)

God commands human beings to be steadfast in the establishment of justice and fairness on earth and made it a virtuous act that would guarantee them peace and tranquillity in this world and eternal bliss in the Hereafter. Those who tread the path of injustice are promised damnation. Justice is enjoined in all aspects of life be it a business transaction, politics, marital life, administration of justice, intellectual and educational pursuits, etc. The Qurʾānic provision which says: ‘Allāh doth command you to render back your Trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice’,24 further attest to the paramountcy of justice in Islam. In Islamic legal tradition, what is ‘just’ or ‘fair’ is either determined expressly by, what Majid Khadduri calls, ‘superhuman or divine authority’,25 or by humans themselves because the latter are considered as rational beings, going by the phrase ‘establish justice’. The fact that divine authority is involved has, on the one hand, given the concept of justice in Islam a rather ‘revelatory’ nature, as against the ‘positive justice’ solely determined by humans. On the other hand, the fact that human rationality is acknowledged makes humans capable of determining what is just in a given circumstance. This duality of determination does not put the divine and the non-divine on the same pedestal. It creates a sort of hierarchy, which necessarily delimits human ability to interject particularly in areas where justice has been divinely determined. Even where a human being is allowed such determination, some guiding principles were laid for him, given his nature of subjectivity, fallibility and proneness to error, so as not to be swayed by selfishness and egocentrism. From this perspective, human determination cannot override the divine. For justice to be established, the Qurʾān commands objectivity in the process. A person must be dispassionate and impartial even if the outcome will not favour him or any of his relations or associates. Quran 4:135 provides: O ye who believe! Stand out firmly for justice, as witnesses to Allāh, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allāh can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allāh is well- acquainted with all that ye do.

24 Q4:58. 25 

M Khadduri, The Islamic Conception of Justice (n 21) at 2.

8 

Gender Justice in Islam

In establishing justice, the command is general, ie justice to all irrespective of their social, religious or economic status. O ye who believe! stand out firmly for Allāh, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety (Q5:8)

This command does not specifically target a certain class or gender as the group upon which rests the duty of determining what is fair and just to all. This means that, in matters not explicitly determined by divine prescription, input from everybody is required. Otherwise, the process is bound to produce an unpalatable result against the interest and needs of other class or community members. The point here is that objectivity, impartiality and equality of arms should be the main yardsticks and not intellectual authoritarianism.26 It is thus everybody’s prerogative, irrespective of their status, to partake in the process of establishing justice as co-equal to complement each other. Righteous deeds and piety are the only distinguishing features between humans in the eyes of God.27 One distinctive feature of Islam is that it does not leave a person to his conscience to feel satisfied that he has exhibited fairness in his judgement or decision, but it provides some reward for him in the Hereafter that incentivises him to always feel the urge to uphold justice. Since it is rewarding to uphold justice, one often wonders why the likes of Mir Hosseini would believe that male M ­ uslim jurists have been perpetuating injustice against women in their endeavour to interpret the divine texts. In this book, gender is viewed in the ordinary parlance as the binary division of human beings along the lines of their ‘sexual identities’ into men and women.28 Gender justice, on the other hand, is the absence of discrimination on ground of sex; thus, the use of the phraseology ‘gender equality’ is sometimes used in the same parlance. These terms are used indiscriminately in view of the difficulty associated with conceptualising gender justice in a way that will appeal to all. It is as problematic as defining the concept of justice, which the leading legal theorist, Kelsen views as hardly escaping human subjectivity in the context of time, space and civilisation.29 To that effect, Mary B Mahowald succinctly puts the operational definition that will best describe the use of the term in this book thus: Gender injustice, sexism, or sex inequality does not necessarily occur when men or women are regarded or treated differently but when they are regarded or treated in a manner by which the essential differences of one sex are interpreted as implying their

26  See generally K Abou El-Fadl, The Authoritative and the Authoritarian in Islamic Discourses: A Contemporary Case Study, 2nd edn, revised and expanded (Austin, Dar Taiba, 1997); K Abou El-Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, One World, 2003). 27 Q49:13. 28  For debates on the meaning of gender, see B Chris, Gender and Sexuality: Critical Theories, Critical Thinkers (London, Sage Publications Limited, 2005) at 11. 29 H Kelsen, General Theory of Law and State (trans A Wedberg), (New Jersey, The Lawbook Exchange Limited, 2009) at 49.

Justice in Islamic Jurisprudence

 9

inferiority to the other, and they are treated accordingly. … In contrast, gender justice occurs when men and women alike are judged according to the standard of their common humanness, respecting the differences that they embody as gendered individuals without imputing inferiority to one or the other on that basis.30

The above quote presupposes that the male and female species do not have the same capability and potential, just as they do not have the same burdens and benefits. It also signifies that justice across genders is better achieved where the same value is attributed to all human beings without undermining such differences. The writer is mindful of the fact that scholars are not agreed on the nature of the differences, which some consider as a social construction while others perceive it as biological.31 At least, they all acknowledge the existence of the difference but the fact that differences exist shall not in itself justify subordinating one sexual class to the other.32 This means considering male and female as complementing each other in their socio-economic roles. With this at the back of our mind, the book does not necessarily construe gender justice as promoting women’s rights alone. It also, to a limited extent, construes men’s rights in the same manner, particularly where a burden is placed on men beyond their capacity, while women are not burdened in any way despite their economic empowerment in modern societies. As we shall see in the book, the classical construction of the institution of ʿāqilah, excludes women from contributing to the common pool in homicide cases. Adhering to the classical construction could mean that a low-income-earning man may be compelled to contribute to the common pool simply because of his gender, while exempting a high-incomeearning woman. The book argues that, in the modern age, using other indices such as a means test rather than gender is more likely to create a fair regime of social relation. The duality between the divine and the human components in defining justice has created an important correlation between ‘sharīʿah’, ‘fiqh’ and ‘adl’. In that, sharīʿah provides both definitive and speculative rules on justice across genders, while fiqh, on the other hand, is given room to interject in speculative matters. The space allowed for human agency further demonstrates the evolving nature of Islamic law, as it allows for continuous updating of legal rules to meet the exigency of a given age.

30 MB Mahowald, ‘Reproductive Genetics and Gender Justice’. http://public.callutheran. edu/~chenxi/Phil350_052.pdf. 31  For elaborate discussion on this, see MB Mahowald, Genes, Women, Equality (New York, Oxford University Press, 2000); B Agarwal, ‘“Bargaining’’ and Gender Relations: Within and Beyond the Household’ (1997) 3(1) Feminist Economist 1–51. 32  MB Mahowald, Genes, Women, Equality (n 31) at 70.

2 The Dividing Line between the Divine and Human I. Introduction The objective of this chapter is to provide a theoretical framework that will be utilised in advancing the main thesis of this book. It seeks to argue that Islamic law in its current configuration has problematised the conceptualisation of sharīʿah by mixing the ‘divine’ and ‘human’ components of the law to look like a composite whole. Creating a dichotomy between the two components would facilitate our understanding of how fundamental concepts such as ‘sharīʿah’, ‘justice’ and ‘gender’ are employed in this work. The concept of ‘sharīʿah is particularly significant given the questions raised earlier on whether injustice can be attributed to sharīʿah in view of its divine inspiration. A survey of varying meanings attributed to this term and others such as ijmā will facilitate our discussion and analysis, which in the end will help create a divide between what constitutes the ‘divine’ and ‘human’ elements in the sources of Islamic criminal law.

II.  Conceptualising the Term Sharīʿah Over the years, ‘sharīʿah’ has acquired a plethora of meanings depending upon approach and context. It is often conceptualised negatively, in the sense that what readily comes to mind are criminal punishments like amputation, stoning etc.1 This negative connotation is further exacerbated by the attitude of some Muslim jurisdictions of placing considerable emphasis on the criminal aspects of the law,2 to the detriment of other aspects of the system that project its positive image and jurisprudential richness.

1  J Auda, Maqāṣid al-Sharīʿah as Philosophy of Islamic Law: A Systems Approach (London, The ­International Institute of Islamic Thought London, 2008) at 57. 2  See C Bassiouni, ‘Foreword’ in M Lippman, Islamic Criminal Law and Procedure (New York, ­Praeger, 1988) IX.

Conceptualising the Term Sharīʿah

 11

The concept is often given the connotation of a mere legal norm; thus, the rendition ‘Islamic law’, for lack of an appropriate English word that could match the word with exactitude. The fact that in modern states production of ‘law’ is the preoccupation of legislative or parliamentary assemblies adds to this confusion. That being the case, it is common to interpret ‘sharīʿah’ in an all-inclusive sense, to comprise the source-materials, juristic formulations, statutory law and custom, thereby overblowing the concept by adding extraneous matters. Consequently, this obscures the interplay between the divine and the human components.3 The concern of this section is the problematic juxtaposition of the divine and human components. It is necessary to create a hierarchy that will allow for a rethink into the manner of extrapolation and production of legal norms by contemporary jurists in a way that the overall purposes of the sharīʿah could be realised. It is therefore important to distinguish between ‘sharīʿah’ and ‘fiqh’ (Islamic jurisprudence) as they are often misconstrued as synonymous, shrouding both the divine and the non-divine components in the status of divinity and immutability. This misconstruction has enormous implications not only for the future development of the system but also on its application to its Muslim subjects, as it renders the whole system ‘closed’ and not amenable to changes in line with the exigencies of time.4 This attitude has serious implications on the development of the system. Apart from freezing the development of ‘sharīʿah’ on the basis of the purported notion of closure of ijtihād, it also led to what Jasser Auda calls ‘mutual accusation of heresy’.5 Opinions of Islamic jurists, particularly the four Sunni eponyms, have been glorified and sanctified as infallible to the extent that adherents of various schools of thought are ready to defend the position of their respective Imams no matter how implausible it is. Anybody who differs from the opinion is often considered a heretic for simply holding a dissenting view. Views of jurists are often sugar-coated with an aura of authority and are taken as a one-size-fit-all position that is not amenable to change irrespective of changing time and circumstances. It is thus pertinent to make this delineation as that will clearly identify the ‘no-go-areas’ and areas that can accommodate new thinking. In lexicon Arabic usage, the term ‘sharīʿah’ refers to ‘a watering place’. ­However, Arabs used the term not for ‘any watering place but one that is permanent and manifest (i.e. apparent to the eye) like the water of rivers and not water from which one draws with the well-rope’.6 It also means ‘a straight path’7 or ‘a way

3 Auda,

Maqāṣid al-Sharīʿah as Philosophy of Islamic Law (n 1) at 57. Baderin, ‘Understanding Islamic Law in Theory and Practice’ (2009) 9 Legal Information ­Management 186–90 at 187 http://journals.cambridge.org/action/displayAbstract?fromPage=online& aid=6155696. 5  Auda (n 1) at 60. 6  R Hissan, ‘What Does it Mean to be a Muslim Today’ (1990) 40(3) Cross Currents at http://www. crosscurrents.org/hassan.htm/ 7  AB Phillips, The Evolution of Fiqh (Islamic Law and the Madh-habs) (Riyadh, International Islamic Publishing House, 2005) at 19. 4 M

12 

Dividing Line between Divine and Human

of life’.8 Technically, sharīʿah refers to the ‘corpus of the divine law as contained in the Qurʾān and the Sunnah of the Prophet’.9 It means that sharīʿah is such an overarching concept that it constitutes a whole body of commands from God that governs all facets of the life of a Muslim in his relationship to God and the humanity in general.10 It is a normative order that governs the entire life of a Muslim transcending mere personal or spiritual relation of humankind to the Creator, but defining all facets of life be they political, social, legal, spiritual, etc. It encapsulates all actions ranging from international relations, commercial dealings and matrimonial relations to the simple issues of personal hygiene and eating etiquette.11 Fiqh on the other hand, literally means ‘discernment’,12 the ‘true understanding of what is intended’13 or ‘the understanding, comprehension and gaining knowledge of the religion in general’.14 Technically, it is defined as ‘a human attempt at knowing the sharīʿah, the divinely ordained “path” which only God knows ­perfectly’.15 It consists of endeavours of jurists in comprehension, extraction, extrapolation and application of legal principles from the Qurʾān and the Sunnah. This effort at discovering the true intent of God requires constant r­ e-examination, as the claim of human perfection in it would hardly stand. It is thus possible to construe fiqh as ‘collection of juridical opinions’,16 or ‘an interpretive law’.17 Of course, there must necessarily be variation in opinions and interpretations. Fiqh may be defined as an applied knowledge, ‘the end-product’ of the engagement between the jurists and the revealed sources, ie the Qurʾān and the Sunnah.18 Such engagement is made possible through employment of many principles and techniques of uṣūl al-fiqh, ie ‘the science of the sources and methodology of the law’,19 which among other things provides ‘the method by which legal rules may be deduced from the source materials of the sharīʿah’.20 Uṣūl al-fiqh may be described as ‘the powerhouse whose core objective is regulating and guiding jurists in their endeavour to deduct legal rulings from the divine sources’.21 The relationship between the trio of ‘sharīʿah’, ‘fiqh’ and ‘uṣūl al-fiqh’ is that uṣūl is the tool and a key used in ascertaining the message

8 

Auda (n 1) at 57. Baderin, ‘Understanding Islamic Law in Theory and Practice’ (n 4) at 187. IN Sada, ‘Sharia Criminal Law and its Re-Introduction in Nigeria’ (unpublished, 2002). 11 Lippman, Islamic Criminal Law and Procedure (n 2) at 25. 12  MB Al-Sadr, Lessons on Islamic Jurisprudence (trans RP Mottahedeh) (Oxford, Oneworld Publications, 2005) at 17. 13 Phillips, The Evolution of Fiqh (n 7) at 19. 14  Auda (n 1) at 56. 15 Al-Sadr, Lessons on Islamic Jurisprudence (n 12) at 17. 16  Auda (n 1) at XXIII. 17  A Khan, ‘The Reopening of the Islamic Code: The Second Era of Ijtihad’ (2003) 1(1) University of St Thomas Law Journal 341–85 at 352. 18  MH Kamali, Principles of Islamic Jurisprudence (Cambridge, The Islamic Texts Society, 2003) at 2. 19  ibid, at 1. 20 ibid. 21  S Abdul Hannan, Uṣūl al-Fiqh (Islamic Jurisprudence) available at www.witness-pioneer.org/vil/ Books/SH_Uṣūl/default.htm. 9 

10 

Conceptualising the Term Sharīʿah

 13

contained in the major sources. Therefore, sufficient understanding of the Qurʾān and the Sunnah is necessary for any viable end-product (fiqh). Secondly, factors both intrinsic and extrinsic may influence our understanding of the divine source. The worldview, exposure and even physical feature may influence understanding of the revealed books, too. Thus, for a proper understanding to emerge, the tool, ie the uṣūl al-fiqh, necessarily requires constant updating to ensure accommodation of any exigency in the sharīʿah. A situation where a society simply adopts stipulations in classical fiqh texts hook, line and sinker without relating them to time and context in addressing contemporary matters makes a mockery of the Qurʾānic provisions that enjoin the Muslim faithful to engage in intellectual reasoning. It portrays contemporary societies as intellectual parasites with nothing to offer in addressing their contemporary problems. This may not augur well for the future development of Islamic law. In line with this, Jasser Auda aptly puts the significance of distinguishing fiqh and sharīʿah thus: Theoretically, the two terms refer to two different meanings. Fiqh represents the ‘cognitive’ part of the Islamic law, to use a systems term, while Sharīʿah, by definition, represents the ‘heavenly’ part of this law. Thus, the term faqīh is used for people with ‘understanding’ (faḥm), ‘perception’, (taṣawwur), and ‘cognition’ (idrāk), and is not to be used for God. On the other hand, the term al-Shāriʿ is a name for God, which means ‘The Legislator,’ and could not be used for humans, except for the Prophet, when he ‘conveys a message from God.22

It appears safer to consider ‘Islamic law’, or what Shaheen Ali prefers to call ‘Islamic legal tradition’,23 as a more general term covering the concepts ‘sharīʿah’ and ‘fiqh’. This is because the positive laws as evidenced from the Muslim jurisdictions draw from both the ‘divine’ and the ‘non-divine’ sources. The fact that there have been incessant calls for amendment of the laws;24 the actual amendments,25 as well as the variations in these laws26 lend credence to this position. In line with this analysis, Mashood Baderin conceptualises Islamic law as constitutive of ‘three main elements, namely sources, methods and principles’.27 Qurʾān and Sunnah are the sources of sharīʿah while other elements such as ijmāʿ, qiyās,

22 

Auda (n 1) at 57. Ali, ‘De-mystifying Sharīʿa and Islamic Law: A Timely Initiative’ (unpublished, 2008) http://193.62.18.232/library/archives/ukcle/78.158.56.101/archive/law/resources/directions/previous/ issue16/ali/index.html. 24  See the Council of Islamic Ideology of Pakistan’s Critical Report on Hudood Ordinance 1979 (1st edn, May 2007) which calls for a more thorough amendment of all the Hudood laws of Pakistan to bring them into conformity with the sharīʿah, available at http://cii.gov.pk/publications/h.report.pdf. 25 Pakistan Government recently repealed the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by removing many provisions adjudged as not in line with sharīʿah following the enactment of the Protection of Women (Criminal Laws Amendment) Act VI, 2006, available at www. pakistani.org/pakistan/legislation/zia_po_1979/ord7_1979.html. 26  cf Sharia Penal Code, 2005 (Zamfara, Nigeria), Pakistan Penal Code and other Hudood Ordinances. 27  Baderin (n 4) at 187. 23 SS

14 

Dividing Line between Divine and Human

urf, etc are only methods and/or principles that supplement the former in the absence of an express provision therein. Principally, this approach is significant for our purpose as it restores to the sources their pristine position of being supra normative, thus making their immutability exclusive. It banishes the non-divine elements to another class and rids them of immutability, thereby allowing room to rethink the juristic formulations made through the employment of such methods. In specific terms, this approach enables a researcher to engage the non-divine elements by subjecting them to rigorous scrutiny.

III.  Sources of Islamic Law There are two major components of Islamic law, namely the divine components and the human components.

A.  Divine Components The Qurʾān and Sunnah of the Prophet (also referred to as ḥadīth (pl aḥādith) ­otherwise known as ‘the divine components of Islamic law’, are the primary sources of Islamic law.28 This is because the Qurʾān declares them as such where it states: ‘Oh you who believe Obey God and Obey the Messenger’.29 Prophet Muḥammad was declared as not making whimsical utterances30 and Muslims have further been enjoined to defer to him on anything and never to have doubts over his decisions and to submit to them without question.31 Of course, this should not give the impression of dictatorship on the part of the Prophet. His role as messenger was characterised as open and democratic, and he sought counsel from his ­companions.32 We should not confuse the divine nature of Sunnah as noted in the above verses with the term ḥadīth, which is ‘the reported historical materials purported to contain the contents of the Sunnah’.33 The Qurʾān is the first source of Islamic law. It is a text revealed in A ­ rabic language, which Muslims believe as containing the exact, uncorrupted and ­ unadulterated words of Allāh, and has survived as such for over 1,400 years. Its revelation was piecemeal over a period of 23 years and in two phases, generally known as the Makkan and Madinan revelations. The Makkan verses were revealed before the Prophet’s famous migration (hijra) to Madīnah and are mostly

28 

Sada, ‘Sharia Criminal Law and its Re-Introduction in Nigeria’ (n 10) at 3. Quran 4:59. 30  Quran 53:3–5. 31  Quran 4:65. 32  Quran 3:159. 33  Khan, ‘The Reopening of the Islamic Code’ (n 17) at 352. 29 

Sources of Islamic Law

 15

ideological in nature. The Madinan revelations, on the other hand, focus on laying solid foundation for an Islamic community.34 The Qurʾān contains both legal and non-legal matters although the latter by far outweigh the former. ­Scholars disagree on the number of ‘legal-specific verses’ but they are believed to be within the range of 350 to 500.35 The Qurʾān is, to Muslims, a Grundnorm as the constitution is to a country. As such, it tolerates no derogation as it sets out the general rules of conduct of Muslims between themselves, their relation to the Creator and to other creatures. Its sacrosanctity, in the eyes of a Muslim, cannot be contested; and it is the primary source of law through which they can attain salvation in the Hereafter. The Sunnah of Prophet Muḥammad (PBUH) is the second source of Islamic law consisting of sayings, actions and tacit approvals of the Prophet. It plays a complementary role as it ‘explains and amplifies’ the Qurʾān.36 The pre-eminence of the Prophet gives him the accolade of being the best interpreter of the Qurʾān, and he played this role during the 23 years of his prophethood. While the Qurʾān was recorded during the lifetime of the Prophet, both in memories and in written form, the Sunnah of the Prophet did not enjoy similar treatment. Indeed, Prophet Muḥammad strongly discouraged recording his Sunnah in the early stage of his prophethood until much later when the Qurʾān was substantially memorised and documented to avoid mixing up his personal statements with the Qurʾān.37 From that time, his companions were encouraged to use writing as a tool of knowledge preservation.38 As such, the Sunnah was preserved in the nature of oral traditions and memories from one generation to the other.39 Ibn Ḥajar observed that two factors were responsible for not initiating systematic collection of the Sunnah during the lifetime of the Prophet, viz: the companions were initially not allowed to record it, and that most of the companions and their followers could not read and write.40 Some notable companions like ‘Abdullāh ibn ‘Amr and Abu Hurairah were among the literate ones who recorded As-ṣādiqah and Ṣaḥīfat-al-hammam respectively. Indeed ‘Abdullāh ibn ‘Amr reported, I used to write everything which I heard from the Messenger of Allāh (r) with the intention of memorizing it. However, some Qurayshites forbade me from doing so saying, ‘Do you write everything that you hear from him, while the Messenger of Allāh is a human being who speaks in anger and pleasure?’ So I stopped writing, and mentioned it to the Messenger of Allāh. He pointed with his finger to his mouth and said: ‘Write! By Him in whose hand is my soul, only truth comes out from it.’41 34 

Phillips (n 7) at 29–31. Baderin (n 4) at 187; W Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usūl al-Fiqh (Cambridge, Cambridge University Press, 1997) at 3. 36  Lippman (n 2) at 31. 37  AH Yamāmah, Mausūʾat Shurūḥ al-Muwaṭṭa li al-Imām Mālik b Anas, vol 1 (Cairo, Dar ‘Alam al Kutub, 2005) at 6; MH Kamali, A Textbook of Ḥadīth Studies: Authenticity, Compilation, Classification and Criticism of Ḥadīth (Leicestershire, The Islamic Foundation, 2009) at 22. 38 ibid. 39  Sada (n 10) at 5. 40 Yamāmah, Mausūʾat Shurūḥ al-Muwaṭṭa li al-Imām Mālik b Anas (n 37) at 6. 41  Phillips (n 7). 35 

16 

Dividing Line between Divine and Human

At any rate, it was in the second century after hijra (AH) that a full-blown action was undertaken to compile the aḥadīth of the Prophet. During the period in question, society had morally degenerated as partisanship spread and many people engaged in fabricating lies and attributing the same to the Prophet in order to justify the existence of their sects and ideologies.42 The fact that it expanded to other territories of non-Arabs would mean that fabrication and adulteration cannot be ruled out because of human failings and tendencies, particularly given the political climate of the period; hence, the process of its compilation began.43 ʿUmar b ʿAbdul ʿazīz initiated the move and many scholars of the time answered the clarion call. They include Ibn Shihāb al-Zuhri and Ibn Jurayj in Makka; Saʿīd b Abi Arwabah and Hammad b Salamah in Basra; Safwān Al-Thawri in Kufa and Ibn Isḥāq and Imām Mālik b Anas in Madina.44 Muslim scholars therefore developed very strict criteria of scrutiny, analysis and authentication of the Sunnah.45 They also compiled and graded each ḥadīth based on its contents (matn) and chain of transmission (isnād) and its ‘acceptability or reliability’.46 This culminated into a very complex science called ulūm-al-ḥadīth. From that perspective, the aḥādīth of the Prophet were accordingly broadly classified based on their degree of acceptability as Ṣaḥīḥ (Sound), Ḥasan (Good/Fair) and Ḍaʿīf (Weak/Spurious), and each of these classes is subdivided into smaller categories.47 There are many collections of aḥādīth, out of which Muslims recognise six as most authentic, commonly called the six authentic collections (ṣiḥāḥ sitta). They are Ṣaḥīḥ Bukhāri by Imām Bukhāri, d 870 AD; Ṣaḥīḥ Muslim by Muslim b Ḥajjāj, d 875 AD; Sunan al-Sughra by Al-Nasāʾi, d 915 AD; Sunan Abū Dawūd by Abū Dawūd, d 888 AD; Jami al-Tirmidhī by Al Tirmidhī, d 892 AD; and Sunan Ibn Mājah by Ibn Mājah, d 887 AD. From the point of view of isnād, Ṣaḥīḥ al-ḥadīth is said to be one that was reported by trustworthy persons with very good retentive memories and one which has an uninterrupted chain of transmission all the way back to the Prophet.48 A ḥadīth is graded ḥasan when the narrators are of a lesser degree of ‘reliability’ and ‘prominence’. Ḍaīf is any ḥadīth that falls short of these requirements. However, the fact that a ḥadīth is declared ḍaʿīf does not make it bad ab initio; it is all a matter of degree. That is why some jurists, having regard to its nature, utilise the ḍaʿīf. For instance, a mursal ḥadīth is in the ḍaʿīf category and is one in which a

42  AB Phillips, The Evolution of Fiqh (Islamic Law and the Madh-habs) (Riyadh, International Islamic Publishing House, 1990) at 57. 43  Baderin (n 4) at 188. 44 Yamāmah (n 37) at 6. 45  AA An-Naʿim Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (New York, Syracuse University Press, 1990) at 22; Hallaq, A History of Islamic Legal Theories (n 35) at 14. 46  ibid, at 23. 47  For elaborate discussion on this refer to MH Kamali, A Textbook of Ḥadīth Studies (n 37) at 139–54. 48  ibid, at 139.

Sources of Islamic Law

 17

broken chain exists between the narrator (like a tābiʾī, ie follower) and the companion. In other words, as in a tabiʿī reporting a ḥadīth directly from the Prophet without mentioning the companion from whom he heard it. Generally, Ḥanafi, Māliki and Shāfiʿi scholars accept such a ḥadīth while Ḥanbali does not.49 It is therefore common to find mursal even in Ṣaḥīḥ Bukhāri and Ṣaḥīḥ Muslim.50 The ḥadīth collection as noted is not without problems as jurists agree that not all aḥādīth collections were accurate.51 The endeavours of specialists in the field of ḥadīth over the centuries have helped in identifying reliable and unreliable aḥādīth. This process is a continuous one and even in recent years, authenticity of a number of aḥādīth has been doubted via the works of scholars like Muḥammad Naṣiruddīn Albāni. It is hardly surprising if such aḥādīth have been used in justifying some classical formulations with gender implications as we shall see in due course. Therefore, throughout this book emphasis will be placed on what is in these two sources.

B.  Human Components Human components of Islamic law are supplementary sources and are employed in the absence of an express or unambiguous textual authority in the supranormative order. It is here that early Muslim scholars, particularly the four great Imāms,52 played significant roles in the development of Islamic law through ijtihād (independent juristic reasoning). These methods include ijmāʿ (juridical consensus), qiyās (analogical deduction), ʿurf (custom), maṣlaḥah (public welfare) istiṣlāḥ (public interest), istiḥsān (preference) etc. However, these sources are not considered binding, and have been the subject of controversy among the Muslim jurists.53 Juridical consensus (ijmāʿ) is the fulcrum of classical fiqh literature, and in simple terms, Sayf al-Dīn al-Āmidī (d 631 AH/1233 AD) defines it as ‘an expression of the agreement of the generality of those qualified to loosen and bind from the community of Muḥammad in a particular age upon a ruling of a ­particular ­occurrence’.54 Viewed from the process of its emergence, ijmāʿ can be explicit (al-ijmāʿ al-ṣarīḥ) or implicit (al-ijmāʿal-sukūti). It is explicit when someone brought an issue before qualified scholars and they reached a consensus on it after deliberation. However, it is implicit where a certain issue comes up before one of

49 

ibid, at 145.

50 ibid. 51 

Khan (n 17) at 352. Imam Abu Hanifa (d 767 AD), Malik b Anas (d 801AD), Muḥammad b Idris al-Shāfiʿi (d 820 AD) and Ahmad b Ḥanbal (d 855 AD). 53  Sada (n 10) at 7. 54 AH Ali, ‘Scholarly Consensus: Ijmāʿ: Between Use and Misuse’ (unpublished, 2010) www.­ lamppostproductions.com/files/articles/Scholarly%20Consensus.pdf. 52 

18 

Dividing Line between Divine and Human

them and he rules on it, and is not countered or objected to by anyone. In this case, they are deemed to have acquiesced to that ruling even without any deliberation. From the subject matter of the consensus, ijmāʿ is either definitive (qaṭʾīʿ), ie when it affirms the content of the text, or speculative (ẓannī), ie when it addresses an issue that is not clear and equivocal in the text. In case of the former, such ijmāʿ is binding since it supports what is already in the text; but the same cannot be true of the latter. To say, for instance, that jurists agree on the obligatory nature of salat is definitive because the Qurʾān mentions ṣalāt as obligatory, and was practised and pronounced as such by the Prophet. However, prescribing the death penalty as punishment for any type of apostasy cannot qualify as definitive since either there is no explicit provision or there are conflicting provisions in the text.55 The implication of questioning the legality of a consensus is enormous, depending upon whether it is definitive (qaṭʾīʿ) or speculative (ẓannī). According to one view, once there is an established consensus of scholars it is heretical to challenge it.56 Little wonder, some scholars have raised the status of ijmāʿ to a primary source.57 Indeed, others even accorded it such prominence as to supersede the divine sources on whose aegis it found legitimacy, as it is only amenable to repeal or review by the jurists that made it.58 Jurists have protected ijmāʿ against contempt that the serious consequences of rejecting an established consensus must not be brushed aside. It is the opinion of mainstream scholars that contesting an ijmāʿ, depending upon whether it is explicit or implicit consensus, is always met with disastrous consequences, at least from the moral point of view. A person who challenges it without genuine reason risks being branded an apostate (murtadd), if it is an explicit consensus, or at least a heretic (mubtadiʿ) or sinner (fāsiq), if it is implicit.59 Consensus of companions of the Prophet has special privilege in that once it is established they actually made it, that consensus becomes a binding authority, according to the majority view, and there is no further room for later generations to depart from it.60 Therefore, fiqh literature is replete with cases where ijmāʿ of companions was claimed, thus denying later scholars the opportunity to doubt the legality of a juristic ruling, although a thorough analysis of the issue may reveal otherwise. The high significance attached to ijmāʿ is intended to prevent corruption in the production of knowledge and create uniformity in Islamic legal ­epistemology.

55  AA An-Naim ‘The Islamic Law of Apostasy and its Modern Applicability: A Case from Sudan’ (1986) 16 Religion 197–224 at 213 www.tandfonline.com/doi/ abs/10.1016/0048-721X%2886%2990033-3?journalCode=rrel20. 56 MO Farooq, ‘The Doctrine of Ijmāʿ: Is there a Consensus’ (2006) www.scribd.com/ document/61771935/The-Doctrine-of-Ijma-Is-there-concensus-by-Dr-Mohammad-Omar-Farooq. 57 M Izzi Dien, Islamic Law from Historical Foundations to Contemporary Practice (Indiana, ­University of Notre Dame, 2004) at 40. 58  Kamali (n 37) at 235–36. 59  Ali, ‘Scholarly Consensus’ (n 54) at 8. 60  Kamali (n 37) at 313.

Dealing with Contradictory Narratives

 19

Its downside however, lies in its tendency to suppress minority opinion by ­underplaying its critique, which is, at times, very plausible.61 The seal of completeness, infallibility and finality placed on ijmāʿ effectively forecloses any subsequent generation from reopening any issue once it is qualified as ijmāʿ.62 This claim also appears to problematise the concept of sharīʿah by blurring the dividing line between the divine and the human elements such that the latter is often projected as sharīʿah, even where it contradicts a clear textual authority. Interestingly, the claim of the existence of ijmāʿ is commonplace in both classical and contemporary literature on Islamic law. It is, however, one thing to claim its existence and is another to prove whether the consensus really existed.63 Jurists have attached stringent conditions to it ranging from the qualifications of participants in it, the requirement of unanimity of all qualified scholars without dissent, etc. Other issues extraneous to ijmāʿ include the uncertainty and lack of consensus on what is ijmāʿ itself, the extent of its bindingness and even its basis and source of authority.64 Notwithstanding this protection accorded it, ijmāʿ cannot abrogate a naṣṣ of the Qur’an or the Sunnah. It is subservient to divine revelation and can never overrule the explicit injunctions of the Qur’an and Sunnah, for it is basically a rational proof.65 Therefore, juridical consensus, as viewed in this book, retains its human elements falling under classical fiqh. It is only when the ijmāʿ does not contradict the primary sources that it is considered binding and established. Classical fiqh in this sense includes any literature including contemporary books of fiqh written on the precepts of the four eponyms of the Sunni Schools.

IV.  Dealing with Contradictory Narratives The concern of this section is addressing how contradictory aḥādīth are reconciled by scholars of ḥadīth. Given the binding status of authentic Sunnah, problems may arise when there is seeming or clear contradiction between two aḥādīth of the Prophet. This is particularly so as it is not evident in the books of an aḥādīth ­collection when a certain statement was made and in what context. In some instance, reconciliation is easily done as it can be evidently seen in the narratives. Sometimes the narrator may indicate the time and context, and in most cases this is not apparent. Classical jurists had laboured hard in their extrapolation of legal rulings from the major sources. In some instances, the rulings were quite explicit

61 

Ali (n 54) at 14. Kamali (n 37) at 235–36. Ali (n 54) at 4. 64  See generally Kamali (n 37) at 228–63. 65 ibid. 62  63 

20 

Dividing Line between Divine and Human

requiring little mental exercise. This happens in cases of inter- or intra-text contradictions, and in doing so, jurists identify six approaches, viz:66 The Al-jamʿwa’l-tawfīq (conciliation) method, is resorted to where the two contradictory narratives are not mutually exclusive; as such, none of them is jettisoned. Recourse is made to tāwīl (interpretation) by declaring the particular as an exception to the general rule. This is technically referred to as taqyīd al-muṭlaq (qualifying the absolute). Therefore, a jurist, in this case, looks for the ‘missing condition or context’ and interprets them accordingly. For instance, the two narratives on diyah: one reads thus, ‘The compensation for life is hundred camels’. While the other says, ‘the compensation of woman is half that of man’. The former may be said to be the general rule and the latter the exception. Imām al-Ṣanʿānī is of the opinion that jurists reconciled these narratives and arrived at 50 camels as diyah for a woman.67 In cases where the narratives cannot be reconciled recourse is made to choice (Al-takhyīr). This provides for picking and choosing contextually the most suitable narrative for a given problem or where possible both of them will be retained.68 In the event they cannot be reconciled but their chronological sequence is known, the abrogation (Al-naskh) method will be employed such that the later ḥadīth stands while the earlier one stands abrogated. Kamali defines abrogation to mean ‘the removal or suspension of one Sharīʿah ruling by another, provided the latter is of a subsequent origin and the two rulings are enacted separately from one another’.69 It is a situation where a jurist can ascertain the order of the revelation or pronouncements of two disagreeing narratives, the narrative that is later in time prevails. Abrogation can occur in the ḥadīth or between the ruling of the Qur’an and that of the ḥadīth. It is, however, outside the scope of this book to enter an elaborate discussion of this. Suffice it to state that jurists have had extended discussion on this issue. The Al-tarjīḥ (preference or elimination) method is resorted to in the event of inability to ascertain their chronology. Preference presupposes adopting the most authentic narrative and discarding the other by taking into account certain factors, which Jasser Auda identifies to include a larger number of other supporting narratives, a short chain of narrators, more knowledgeable narrators, more capable of memorisation and narrators that are more trustworthy. It also includes taking into account a first-hand account versus indirect accounts, shorter time between the narrative and the narrated incident, narrators able to remember and mention the date of the incident versus others, less ambiguity, less rhetoric, etc.70 Other scholars have given additional factors being considered in making preference.71

66 

Auda (n 1) at 219–21. MI Al-Ṣanʿānī, Subl al-Salām, vol II (Dār al-Ḥadīth, nd) at 365. 68  Kamali (n 37) at 109. 69  ibid, at 127. 70  Auda (n 1) at 220. 71  Kamali (n 37) at 110–11. 67 

Conclusion

 21

Where preference is impossible jurists urged that a scholar should not rush but suspend all actions (Al-tawaqquf) until one of these methods is possible, ie conciliation, abrogation and preference, in which case, he applies it accordingly. Finally, cancellation (Al-tasāquṭ) may be employed by disregarding the two contradictory narratives on ground of uncertainty. The methods identified above are by no means hierarchical. A majority of the Sunni Schools accords conciliation method priority in theory, but in practice they support the Ḥanafi School which prefers abrogation and elimination methods.72

V. Conclusion In the foregoing, the chapter attempted to distil the theoretical framework that underlies the rest of this book. The chapter started on the premise that the ­construction of the term ‘sharīʿah’ as including both the divine and the human components is inhibiting our bid to ascertain the source of gender inequity in Islamic criminal justice regime, and that it is only by delinking the two components that this issue can be addressed. The analysis indicated that the divine sources constituting the Qurʾān and authentic Sunnah of the Prophet Muḥammad are immutable. On the other hand, the ijmāʿ, qiyās and other human components come to fill the void in the absence of divine prescriptions and are mere rational proof and human appreciation of the divine components. They can therefore change according to time, space and circumstances, save where they restate the content of the divine components.

72 

Auda (n 1) at 220.

3 Homicide, Bodily Injuries and Gender in Fiqh Literature I. Introduction This chapter explores the classical fiqh discourse with a view to ascertaining how gender-unequal representation in homicide and bodily injuries becomes unquestioned in the Islamic criminal justice regime. The exploration becomes necessary in view of the global concern at the treatment of women under contemporary Islamic criminal regimes, which are largely the offshoots of the classical discourse translated into practice. It seeks to argue that the discourse presents an incomplete picture by failing to provide the entire spectrum of views on the subject. Consequently, gender differential treatment in the area acquires an almost universal and immutable feature of Islamic criminal regime, with enormous effect on women. In view of the historical link between Islamic law and the pre-Islamic Arab culture, the latter’s perspective on gender will give us some insight into the default culture which might have impacted on the evolving culture and even compete with it.

II.  Homicide in Pre-Islamic Arabia One distinctive feature of Arabian societies before Islam was hostilities and a penchant for revenge. Their social set-up was along clannish line, which was a grouping of close relatives and families united by a common ancestor. Mutual collaboration was only known within clan.1 There was always tension between one clan and another, such that a ‘state of hostilities’ became the order of the day. There was, strictly speaking, no criminal law in operation but private revenge.2 In the event that somebody outside a clan murdered a member of that clan, it became incumbent upon the clan members to avenge his blood; and this duty was placed upon the able-bodied men of the clan (aṣabah). This craving for vengeance was

1 

MS El-Awa, Punishment in Islamic Law (Plainfield, American Trust Publication, 2000) at 70.

2 ibid.

Vengeance Spree to Just Retribution

 23

premised on an antiquated belief that a blood thirsty bird known as ‘ham’ will visit the grave of the murdered person at night crying, implying that it needed blood to quench the thirst. The only possible way of providing the required blood was to go on a vengeance spree. It was a matter of self-help; therefore, the actual culprit was not the only target but any member of his clan.3 The offending clan may redress the murder by offering monetary compensation (diyah), which the offended clan may accept or reject. If negotiation was deadlocked, total bloodshed may ensue and will only end upon handing over the culprit to the offended clan.4 There was disparity in the amount of monetary compensation across genders under the default system of the pre-Islamic Arabian society. According Ibn Saʿad, before Islam 10 camels used to be given as diyah for men but later Abdul Mutallib changed it to 100 camels and this was adopted by all the Arab tribes including the Quraysh.5 Notwithstanding the above, there was no uniformity on this as the stratified setting of Arabia then enabled some clans considered ‘nobles’ to exert influence on other clans that were not so endowed. Social status determined the number and gender of people to be killed, and amount of compensation to be collected from an offending tribe. For instance, in the tradition of pre-Islamic Arabia, a member of Banū Naḍīr would not be executed for murdering a member of Banū Qurayẓah. Banū Qurayẓah would only be entitled to compensation of one hundred wasq6 of dates. In contrast, a member of Banū Qurayẓah was liable to execution for murdering someone from Banū Naḍīr, unless the latter opted for compensation, in which case Banū Naḍīr would be compensated with 200 wasq of dates, ie double what was due for Banū Qurayẓah.7 It is also on record that often a male member of the non-noble tribe would be liable to execution for killing a female member of the noble tribes.8 This scenario of class struggle characterised the pre-Islamic Arabia, the birthplace of Islam.

III.  From Vengeance Spree to Just Retribution With the above as the backdrop, Islam radically overhauled the default system and replaced it with another which, in the main, advocates justice and fairness technically referred to as ‘qiṣāṣ’.9 The following verses, even though revealed on different

3 ibid.

4  C Brockelmann, History of the Islamic Peoples (trans J Carmichael and M Perlmann) 2nd imp (USA, Capricorn Books Edition, 1960) at 4. 5  M Ibn Saad, Al-Ṭabaqāt Al Kubrā, vol I (Beirut, Dār Kutub al-ʿIlmiyyah, 1990) at 72. 6  wasq is an instrument used in measuring the sweet, edible, oblong or oval fruit of the date palm. 7  IU Ibn Kathīr, Tafsir Ibn Kathīr, vol I (Cairo, Dar-al-Tayyibah, 1999) at 489. 8  ibid; see also S Quṭb, Fī Ẓilāl al-Qurʾān, vol I (Beirut, Dar-al-Shurouq, 1992) at 165. 9  NJ Coulson, A History of Islamic Law (Edinburgh, Edinburgh University Press, 1994) at 18.

24 

Homicide, Bodily Injuries and Gender

occasions, are the foundation of the new system; and are the verses upon which divergence of views among Islamic jurists of the classical age on ground of gender was premised. (I) O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any ­remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty. (Q2:178) (II) In the Law of Equality there is (saving of) Life to you, o ye men of understanding; that ye may restrain yourselves. (Q2:179) (III) Never should a believer kill a believer; but (If it so happens) by mistake, ­(Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (Is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to Allāh for Allāh hath all knowledge and all wisdom. (Q4:92.) (IV) On that account: We ordained for the Children of Israel that if any one slew a person—unless it be for murder or for spreading mischief in the land—it would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people. Then although there came to them Our messengers with clear signs, yet, even after that, many of them continued to commit excesses in the land. (Q5:32) (V) We ordained therein for them: ‘Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.’ But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allāh hath revealed, they are (No better than) wrong-doers. (Q5:45)

The above verses, from the outset, show that under the Islamic criminal justice regime no life is worthless, regardless of the social, religious or gender status of the individual. The sacrosanct nature of human life and the consequences of its violability are among the principles jurists extracted from the Holy Qurʾān.10 Homicide can be intentional (ʿamd), unintentional (khaṭʾ) or semi-­intentional (shubh al-ʿamd).11 Intentional homicide occurs where the act and the result are intended. For instance, ‘A’ aims a gun at ‘B’ and shoots him. It is however ­unintentional or accidental homicide where intention did not follow the act.

10  Q17:33 reads: ‘Nor take life—which Allah has made sacred—except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand qisas or to forgive): but let him nor exceed bounds in the matter of taking life; for he is helped (by the Law)’. 11 CM Bassiouni, ‘Quesas Crimes’ in CM Bassiouni (ed), The Islamic Criminal Justice System, ­(London, Oceana Publications, Inc, 1982) 203–09 at 203.

Retribution for Loss of Life

 25

In other words, he intended neither the act nor the result. For instance, ‘A’, a driver, mistakenly hits ‘B’, a pedestrian, with his car and the latter dies. It is however semiintentional where only the act was intended and not the result, as where ‘A’ hits ‘B’ with a cane and ‘B’ dies as a result.12 The offence of homicide is not a ḥudūd offence under the Islamic law but an independent offence, as it involves violation of the right of Allāh and the right of man.13 Individual right, however, overrides God’s right in the sense that considerable discretion is given to the victim or his/her close relatives to seek retribution (qiṣāṣ),14 accept monetary compensation (diyah)15 or forgive and waive both. In other words, it goes beyond being a mere private right as known in Arabia before Islam, but has an element of divine sanction. Some scholars view it as a matter of individual right given the wide discretion open to them.16 The bottom line is that homicide under the Islamic criminal justice is a legally compoundable offence. The purpose of the law of just retribution (qiṣāṣ) is to ensure that an individual suffers harm only to the extent of the injury he caused to another deliberately or negligently. Perhaps that would deter him and others from committing a similar unlawful act. This principle of exactitude or equivalence dispenses with the idea of vindictiveness that characterised the pre-Islamic Arabian society. It is on this point Mahmoud Cherif Bassiouni objects to using the English word ‘retaliation’ in place of qiṣāṣ as, according to him, ‘it connotes more vindictiveness or revenge than the redress of a wrong by equalizing the harm’.17

IV.  Retribution for Loss of Life Three schools of thought exist among early jurists including the companions on qiṣāṣ across genders. To some there is retribution in killing a woman by a man and vice versa. The second group allows the killing of a man for a woman only after making remittance of half diyah. The third group does not allow retribution across genders at all. Yusuf al-Qaraḍāwī identified the first group as the majority relying on many authorities, including the ḥadīth reported in Ṣaḥīḥ al-Bukhāri that a Jewish man was executed for killing a woman. He even reported how

12  For elaborate discussion, see R Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (New York, Cambridge University Press, 2005) 38–53. 13  AO Sherif, ‘Generalities on Criminal Procedure under Islamic Sharīʿa’ in M Abdel Hallem et al (eds), Criminal Justice in Islam: Judicial Procedure in the Sharīʿa (New York, IBTauris Co Ltd, 2003) 3–16 at 5. 14 ‘Qiṣāṣ’ is used to cover retribution for both loss of life and bodily injury, although qawad is commonly used in reference to bodily injury. 15  The word ‘diyah’ is used to cover compensation for both homicide and bodily injury. ‘Aql’ is also used for compensation for homicide, while ‘arsh’ refers to compensation for bodily injury. 16  Bassiouni, ‘Quesas Crimes’ (n 11) at 204. 17  ibid, at 203.

26 

Homicide, Bodily Injuries and Gender

ʿUmar b Khaṭṭāb executed a group of three men for conspiring to kill a woman.18 The second group, which includes Uthmān b Affān, Ḥasan al-Baṣri and Aṭa’, relied on the opinion of ʿAli b Abī ṭālib to hold that the murderer’s family must be paid half diyah before he is executed for killing a woman. The third opinion is that of Imām al-Khaṭābī, who relied on Q 2:178 to disallow executing a man for a woman.19 All the four Sunni school eponyms are unanimous that there is retribution (qiṣāṣ) where loss of life is caused intentionally.20 The Ḥanafi jurists specifically argue that in homicide cases, there is no recourse to social, economic or gender status of the accused. In view of this, a man is liable to execution for causing the death of a woman and vice versa.21 This is in cases where the close relatives of the deceased demand retribution, as they have options of having him executed (qiṣāṣ), collecting compensation (diyah) or forgiving him (ʿafw) entirely. In other words, as against the impression many feminists have, a woman is not inferior to a man, as he is liable to execution for killing her. In further adding more impetus to the Sunni position, Imām Muḥammad b Idris al-Shāfiʿi (d 204 AH) in his authoritative book, Al-Umm, apparently disagreeing with the Shiʿites, unequivocally states that no remittance shall be made by the blood relatives of the slain woman to the family of the male assailant.22 Under the Shiʿite School, a woman is not equated to man in this respect. Thus, there is unanimity in the Jaʿfari sect (popularly known as the ‘Imāmī’, ‘Ithnā Asharī’ or the ‘Twelvers’) that, in cases of loss of life, the diyah of a woman is half that of man.23 Thus, he is not liable to execution for causing her death. His execution is only possible where her close relatives are ready to make remittance of half of a man’s diyah to his own relatives. By implication, the relatives of the deceased woman doubly suffer. Apart from losing her, they are also under obligation to remit half the amount of diyah to the relatives of her male assailant if they want him to be executed.24 However, the reverse is the case should a woman have caused the death of a man. In this case, she is liable to execution and in addition to that, her ­relatives must pay one half of man’s diyah to the relatives of the deceased man.25 18 Y Qaraḍāwi, ‘Diyat al-Mar’at fi al-Sharīʿat al-Islamiyyah’ (unpublished, 2005) www.cmrim. com/index.php?option=com_content&view=article&id=2573:2012-11-21-10-18-06&catid= 121:2012-11-15-12-51-36&Itemid=233. 19 ibid. 20  AMA Ibn Rushd, Bidāyat al-Mujtahid Wa Nihāyat al-Muqtaṣid, vol II (Cairo, Mustapha Albābī Printing and Publishing Company, 1975) at 400; see also IM Ibn Mufliḥ, Al-Mubdaʿ Sharh al-Muqnaʿ, vol VIII (Riyadh, Dār ʿĀlim al-Kutub, 2003) at 231. 21  M Al-Sarakhsi, Al-Mabsūṭ (KM Al-Mays, ed), vol XXVI (Beirut, Dār al-Fikr, 2000) at 236; see also A Al-Kāsāni, Badāʾiʿ al-Ṣanāʾiʿ fi Tartīb al-Sharāʾiʿ, 2nd edn, vol X (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) at 261. 22  MI Al-Shāfiʿi, Al-ʾUmm, vol VI (Beirut, Dār al-Maʿarifah, 1990) at 21. 23  HR Kusha, The Sacred Law of Islam: A Case Study of Women’s Treatment in the Islamic Republic of Iran’s Criminal Justice System (Aldershot, Ashgate Publishing Company Limited, Burlington, 2002) at 262. 24 ibid. 25 ibid.

Compensation for Loss of Life

 27

This is the view of the mainstream Shiʿite group, and it is purported to be based on the authority of ʿAli b Abī Ṭālib (The fourth caliph). It was reported that Ali advocated that gender status must be taken into account in everything.26 It is said that ʿAli made the pronouncement when he adjudicated over a case brought before him of a man who intentionally killed his wife. It was Ali’s ruling that if the family of the slain woman wished to have the man executed they must pay one half of man’s diyah.27 We shall subsequently address the falsities of this decision attributed to ʿAli, as his other pronouncements on gender relations in homicide and bodily injury are at variance with the above.

V.  Compensation for Loss of Life While in cases of retribution no gender disparity is exhibited, at least from the Sunni point of view, it is not the case when monetary compensation is demanded. It is the stance of all the four major Sunni schools that the diyah of a woman is worth half the diyah of a man.28 This position, as claimed by its proponents, enjoys the endorsement of the Prophet or some of his prominent companions.29 Halving a woman’s diyah has been one of the most controversial issues in modern scholarship, and has elicited debates at both national and international levels. Indeed, this issue has engaged Muslims and Western epistemic communities in heated ­arguments.30 This position is defended in Muslim cycles with a seal of finality as a ‘no go area’. Perhaps this might have prompted scholars like Ziba Mir Hosseini and Leila Ahmed to doubt the fairness of sharīʿah in treating various genders. According to Mir Hosseini: if justice and fairness are inherent in Islam- as fuqahāsʾ claim and all Muslims believeshould they not be reflected in laws regulating relations between men and women and their respective rights? Why have women been treated as second-class citizens in the fiqh books that came to define the terms of the Sharīʿah?31

26 

M Al-Qurṭubi, Tafsīr al-Qurṭubi, vol II (Cairo, Dar Kutub al-Misriyyah 1964) at 248. M Al-Ṭabari, Jāmiʿ al-Bayān fi Taʾwīl al-Qurʾan, vol III (Muʾassasat al-Risālah, 2000) at 362. 28  J Schacht, An Introduction to Islamic Law (Oxford, Clarendon Press, 1964) at 185; SH Al-Bāji, Al-Muntaqa Sharḥ al-Muwaṭṭa, 1st edn, vol VII (Egypt, Maḍbaʿat al-Saʿādah, 1913) at 78; Al-Sarakhsi, Al-Mabsūṭ (n 21) vol XXVI at 140; Ibn Rushd, Bidāyat al-Mujtahid Wa Nihāyat al-Muqtaṣid (n 20) at 513; Al-Shāfiʿi, Al-ʾUmm (n 22) vol VI at 21; AS Al-Mardāwi, Al-Inṣāf, vol X (Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabi, 1998) at 49. 29 Al-Kāsāni (n 21) vol X at 310. 30  HR Kusha, The Sacred Law of Islam (n 59) at 262. 31  Z Mir-Hosseini, ‘Muslim Women’s Quest for Equality: Between Islamic Law and Feminism’ (2006) 32 Critical Inquiry 629–45 at http://www.jstor.org/stable/10.1086/508085. 27 

28 

Homicide, Bodily Injuries and Gender

Leila Ahmed too registers her consternation at the way women are under permanent and continual relegation as non-entities in the classical fiqh literature as lesser than men, that ‘women’s differentness and inferiority within the system are immutable’.32 The seemingly universal feature of this principle made it difficult to ascertain the true position of this claim, even though there has been opposition to this stipulation since the classical age, as we shall see later. Little is known of the dissenting voices, thus giving the principle the status of qaṭʾīʾ (definitive juridical consensus) that cannot change. Intellectual integrity dictates that the opinion of the minority be presented as doing that would help in assessing the merits of that view against that of the majority. Abūbakar al-ʾAṣamm (d 201 AH /816 AD)33 and Ismāʾil b Ibrāhim b ʿUlayyah (d 193 AH/809 AD)34 have challenged their colleagues on this issue. They rely on the provision of Q 4:92 thus: ‘If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely’. According to this opinion, the use of the phrase ‘compensation to the deceased’s family’ covers both men and women, although the masculine gender is used in the verse.35 They further argue that neither the Qurʾān nor the Sunnah sanctions the differential treatment on diyah.36 However, mainstream scholarship condemned this view as ‘solitary’ and ­‘isolated’ and not meriting consideration on the ground that the above-named scholars belonged to the separatist sects of muʿtazilah or jahmiyyah.37 It is a common rhetorical tactic to deflect criticism by attributing dark motives to its bearers. Hence, there is no consideration to their views in establishing legal principles, no matter their plausibility and soundness. These scholars were simply declared as ‘misguided innovators’ outside the Ahl-us-Sunnah camp.38 They earned this intellectual assault and condemnation for their audacity in challenging the majority

32  I Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, Yale University Press, 1991) at 7. 33 Abūbakar al-ʾAṣamm was a separatist scholar (muʿtazilah) notoriously known for very radical views that did not conform with mainstream Islamic scholarship. The Muʿtazilite creed held sway under the Abbasid dynasty from 813–47 AD during the reigns of al-Maʾmūn, al-Muʿtasim and al-Wāthiq, when it was imposed on people as the state creed. See ‘Ash’ariyya and Mu’tazila’ www.­ muslimphilosophy.com/ip/rep/H052. 34 Ibn ʿUlayyah was one of the teachers of Imām Aḥmad b Ḥanbal, the eponym of the Ḥanbali School, and had held a political office during the reign of Hārūn al-Rashīd (786–809 AD). However, there is no agreement between jurists on whether the Ibn ʿUlayyah referred to here was the father or his son, as they were using the same surname. According to Qaraḍāwi, the context points to the fact that it was the father, because it was only he who was known to be a jurist and a traditionalist, while his son was only known as a public speaker. See Qaraḍāwi, ‘Diyat al-Mar’at fi al-Sharīʿat al-Islamiyyah’ (n 18). 35  M Razi, Tafsīr al-Kabīr, vol X (Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabia, 1999) at 179. 36 ibid. 37  Multaqa ahl al-Ḥadīth, ‘Hal Diyat al- Marʾat ʿalā Niṣf Min Diyat al-Rajul?’. www.ahlalhdeeth. com/vb/showthread.php?t=14647. 38 ibid.

Retribution in Bodily Injuries

 29

view. Notwithstanding the position taken by Multaqa ahl al-Ḥadīth on Abūbakar al-ʾAṣamm and Ismāʾil b Ibrāhim b ʿUlayyah, these jurists have featured prominently in all the discussions of the early jurists. Their dissent was always acknowledged in the classical fiqh literature. For instance, Al-Sarakhsi of the Ḥanafi School cited Abūbakar al-ʾAṣamm among the early jurists who were opposed to child marriage on the ground that it negates the essence of marriage, which is procreation and sexual satisfaction.39 The fitness for marriage, according to this group of jurists, entails physical and mental maturity on the strength of the following Qur’anic verse: And test the orphans (in their abilities) until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them.

If the opinion of these jurists did not merit consideration reference would not have been made to their opinions. At any rate, modern scholars like M ­ uhammad Abduh, Abu Zahra and Yusuf Al-Qaraḍāwi hold the same view.40 Indeed, ­Muhammad Abduh categorically states that there is no difference between compensation of men and women as per the provision of Q4:92.41 The reasoning of mainstream classical Islamic scholarship is that the half diyah stipulation stemmed from a consensus (ijmāʿ) of the companions of the Prophet Muḥammad like ʿUmar b Khaṭṭāb (d 23 AH/641 AD), ʿAli b Abū Ṭalib (d 40 AH/658 AH), ʿAbdullāhi b Masʿud (d 32 AH/654 AD) and Zaid b Thabit (d 45 AH/663–64 AD and there was no counter view from any other companions.42

VI.  Retribution in Bodily Injuries A majority of scholars of the classical age, including Māliki and Shāfiʿi ­scholars, allow retribution in bodily injuries across genders and have not placed any higher economic value on men’s limbs over women’s, or any difference along gender lines.43 In contradistinction to the majority view, the Ḥanafis do not treat human limbs on equal terms. They do not consider limbs of men as equal to those of women, having regard to the nature of work either of them ­customarily ­undertakes.44 Qurʾān 5:45 expressly prescribes retribution across genders in

39 

Al-Sarakhsi (n 21) vol IV at 387. MI Abū Shallāl, ‘Diyat al-Marʾatul Muslimatu fi al-Sharīʿat al-Islāmiyyah’ (thesis submitted to the Faculty of Postgraduate Studies, Al-Najah National University for the award of MSc of Islamic Laws and Islamic Legislation, Nablus, Palestine, 2007) https://scholar.najah.edu/sites/default/files/all-thesis/ muslim_woman_diya_at_the_islamic_shrea.pdf at 74. 41  MR Riḍa, Tafsīr al-Manār, vol V (Cairo, Dār al-Manār, 1947) at 333. 42 Al-Kāsāni (n 21) vol X at 310. 43 Al-Bāji, Al-Muntaqa Sharḥ al-Muwaṭṭa (n 28) vol VII at 78; Al-Sarakhsi (n 21) vol XXVI at 246; A Al-ʿAbādī, Al-Jawharat al-Nīrah, vol II (Beirut, Al-Maktab Al-Khairah, 1904) at 123. 44  Al-Sarakhsi (n 21) vol XXVI at 246. 40 

30 

Homicide, Bodily Injuries and Gender

­ omicide cases, via the phraseology ‘life for life’. This made it compulsory to exeh cute a man for killing a woman. The same principle applies to bodily injuries too, in the understanding of the majority. On the other hand, the Hanafi School does not see any link between life (soul) and the constituent parts of the body such as hands, legs, head, etc. According to this school of thought, retribution across genders in homicide is appropriate since no one knows the quality of human soul.45 Thus, the life of a child has the same value as that of an adult, so is the life of sick or disabled person vis-a-vis a healthy person. Because of this, the School agrees with the other schools that a healthy person is liable to execution for killing a sick person, or a group for killing an individual.46 Thus, lives of men and women are to be treated equally, more so as the Holy Qurʾān does not distinguish between the male and female soul. However, for bodily injuries, the wordings used is ‘wal jurūḥ qiṣāṣ’, meaning ‘and wounds equal for equal’. This expression, in the understanding of Ḥanafi scholars, connotes some element of ‘equivalence’ (mumāthalā) between the victim and his assailant.47 In other words, the wording suggests that retribution applies only when the physical features of the assailant and his victim are of equal strength. For example, the limbs of a lame person are not equal to that of a healthy person. Therefore, where the latter injures the former, only payment of compensation applies as applying retribution would be tantamount to injustice to the healthy person. The same thing applies in cases involving man and woman. Al- ʿAbādī illustrates the principle that a man would not lose his hands for accidentally or deliberately dismembering the hands of a woman as his hands are meant to do certain jobs higher than what women are accustomed to, ie cooking, baking, spinning, etc which, according to Al-ʿAbādī, are acts unbefitting of a man.48 The objective of the Qurʾān of ‘for wounds equal for equal’ will be violated if retribution is ordered given the absence of equivalence between sexes in their physical construction and strength. The rationale behind this is that limbs are like personal property. Therefore, the Ḥanafi scholars treat the loss of any of them as such.49 For these reasons, there is no retribution for bodily injury between man and woman and vice versa since their limbs are not of an equal degree of strength. Therefore, in all cases of bodily injury, whether deliberately or mistakenly caused, the assailant is only liable to compensate his victim in monetary terms since the School attaches different economic value to limbs across genders. The implication of this standpoint is that there can be no gender equality in bodily injury, since men are to be doing heavy-duty jobs of which women rarely partake. Therefore, in such cases, a woman is only entitled to compensation commensurate to her diyah, which is stipulated as half that of a man.

45 

M Al-Bābartī, Al-ʿInāyah Sharḥ al-Hidāyah, vol X (Beirut, Dār al-Fikr, nd) at 235. Al-Jawharat al-Nīrah (n 43) vol II at 123. Ibid, vol xxix, at 162. 48  ibid, vol II at 123. 49 Al-Bābarti, Al-ʿInāyah Sharḥ al-Hidāyah (n 45) vol X at 235. 46 Al-ʿAbādī, 47 

Retribution in Bodily Injuries

 31

This principle becomes clear where the scenario is illustrated using £10,000 as the equivalent of full diyah in modern time,50 as follows: If Mr A dismembers Mr B’s legs, Mr A is liable to retribution if it is intentional. Where it is unintentional, he is liable to pay to Mr B the sum of £10,000. However, if Mr A dismembers Miss B’s legs, Mr A will not be liable to retribution whether the act was intentional or unintentional. Mr A will only be liable to compensation of £5,000. This is because her legs are not considered to be of equal utility to Mr A’s. By the same token, if Miss B dismembers Mr A’s legs, she is not liable to retribution because Mr A’s limbs are of high utility to hers. Miss B will therefore be liable to £10,000 being the full diyah of a man. It appears that the classical Ḥanafi jurists unnecessarily attached more weight to the physique of the sexes and disregarded the complementary role that society expects men and women to play. They did not consider the fact that some women have equal or even greater physical strength than some men, perhaps because the ruling targeted men as a group. Equally not considered is the fact that only women can properly handle child bearing which ensures the continuity of human race. This leads to the question ‘how would one ‘quantify’ this ability to procreate visa-vis male physical strength? It is often difficult to appreciate why both sexes are tasked equally to observe religious obligations using their limbs, and they are equally rewarded, they are also made equally accountable for their deeds and misdeeds in the Hereafter, yet their anatomical differences are taken into account in determining the amount payable for bodily injury. Shaheen Sardar Ali catalogues some Qurʾānic verses such as Q33:35; 9:71; 40:40; 9:72; 48:5; 57:12; 3:195, etc, that clearly hold men and women responsible on equal terms.51 Suffice it here to identify three of these verses to buttress our point. Surely the men who submit and the women who submit, and the believing men and the believing women, and the obeying men and the obeying women, and the truthful men and the truthful women, and the patient men and the patient women and the humble men and the humble women, and the almsgiving men and the almsgiving women, and the fasting men and the fasting women, and the men who guard their private parts and the women who guard, and the men who remember Allah much and the women who remember—Allah has prepared for them forgiveness and a mighty reward.52 And (as for) the believing men and the believing women, they are guardians of each other; they enjoin good and forbid evil and keep up prayer and pay the poor-rate, and obey Allah and His Messenger; (as for) these, Allah will show mercy to them; surely Allah is Mighty, Wise.53 50  The sum of £10,000 sterling is for illustrative purposes only and does not represent the current value of diyah for loss of life. 51  SS Ali, Gender and Human Rights in Islam and International Law: Equal Before Allah Unequal Before Man (The Hague, Kluwer Law International, 2000) at 38. 52 Q33:35. 53 Q9:71.

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Homicide, Bodily Injuries and Gender

Whoever does an evil, he shall not be recompensed (with aught) but the like of it, and whoever does good, whether male or female, and he is a believer, these shall enter the garden, in which they shall be given sustenance without measure.54

The above notwithstanding, Mansur I Yelwa does not see gender relation only from the spiritual point of view. He argues that careful reading of the primary sources of Islamic law will reveal that issues of gender relation can be viewed from many strands. There are instances where men and women share rights on equal terms; in some instances men’s rights prevail over women’s, and yet in other instances women’s rights have been prioritised. He argues that merely by looking at their physical structure it is obvious they do not look the same; as such they are assigned responsibility regard being had to their particular nature, but neither discrimination nor oppression was intended.55 He agrees with Shaheen Ali that spiritually men and women are equally tasked and rewarded, and further added that they are equal in mutual enjoyment of matrimonial rights and also the right to own and disposed of property.56 Yet Yelwa meticulously identifies areas where men have been given the upper hand, as well as areas where rights of women have been prioritised. First, sharīʿah enjoins that a man, being the head of the family, deserves respect and obedience because he is the protector and maintainer of the family as alluded to in Q2: 228 and Q4:34. Secondly, the right to travel is enjoyable by all genders yet a woman’s own right is limited in that she is required to have a maḥram ie a close male relative, in order to protect her from harm or attack. However, the requirement of maḥram should not be misconstrued as intending censure or police her personal affairs. This circumscription should be seen as empowering her in that she is always prone to attack on her person. Thirdly, both men and women have been enjoined to dress modestly; yet Islam goes as far as prescribing a special dress code for women. This requirement is not to persecute them; rather, it is for their protection. O Prophet! Tell your wives and your daughters and the women of the believers to draw their cloaks (veils) all over their bodies. That will be better, that they should be known (as free respectable women) so as not to be annoyed. And Allah is Ever Oft—Forgiving, Most Merciful.57

Fourthly, in matters of marriage guardianship and dissolution of marriage through talaq men have been given the upper hand. According to Yelwa, this preference is predicated on the strength of Q3:34 to compensate men for their enormous responsibility towards women and children usually through payment of dower (ṣadāq), maintenance of the wife and children and their protection. Finally, in political and judicial leadership, men have the upper hand in that they can hold

54 Q40:40.

55  MI Yelwa, ‘Inter-Gender Balance of Rights in Islam’ in SS Haneef, NM Zin and MW M ­ ahmud (eds), Issues on Harmonization of Human Rights in Islam (Kuala Lumpur, International Islamic ­University Malaysia Press, 2016) 66–83 at 63. 56  ibid, at 66. 57 Q33:59.

Retribution in Bodily Injuries

 33

any political or judicial office without restriction. In contrast, women are not to hold the highest political office in the state, ie president. The author argues that such position requires ‘full-time service’ which women may not be able to provide at least from the psychological point of view. Notwithstanding this, he agrees, however, that this is a contentious issue as many contemporary scholars have departed from that view. He gave the list of the scholars to include Ṭariq al-Suwaidan and the grand Mufti of Egypt, Shaykh Ali Jum‘ah, Yūsuf al-Qaraḍāwi, Muḥammad al-Gazāli, Muḥammad Salim El-Awa and Muḥammad Sayyid Ṭanṭāwī.58 Still in this connection, Yelwa demonstrated that women have been given the upper hand in relation to respect from children. They have more obligation over their children than men. It is also clear that with regard to the custody of ­children women have the upper hand. All these are to compensate her for the enormous burden placed on her of child bearing-conception, suckling and weaning. ­Interestingly, even among children, the female is more deserving of parental care than the male.59 As such priority depends upon a particular gender’s social role, and it is never a question of male being superior over female. In that wise, Allah cautions the Muslims in the following words: And do not covet that by which Allah has made some of you excel others; men shall have the benefit of what they earn and women shall have the benefit of what they earn; and ask Allah of His grace; surely Allah knows all things.60

Thus, if physical strength, utility and capability are worthy of consideration in making a value judgement, why did the Hanafis not extend the same to spiritual duties such as prayer, pilgrimage, fasting etc? In other words, the School should have reduced for women all these acts of ʿibādāt to be a half of what men will do. Absence of such concession may have been the reason why other schools choose to treat the limbs of men and women on an equal basis by allowing retribution across genders. Mahmud Shaltut (d 1963) does not see any difference in all acts of ibādāt between men and women: Woman’s humanity stemming from the same origin as that of the man, her blood is the same as his, he being from her and she from him and equal retaliation in kind being the rule common to both cases of homicide and hell and damnation being the other worldly punishment for the killing of either man or woman, so the rule of the verse applies to the accidental homicide of either a man or a woman. Given that our primary frame of reference is the Qurʾān, we find that its statement is general and does not privilege the man with any special status: ‘and whosoever kills a believer by mistake (it is ordained that) he must set free a believing slave and compensation (blood-money ie diya(h)) be given to the deceased’s family’ [Q 4:92]61

58 

Yelwa, ‘Inter-Gender Balance of Rights in Islam’ (n 55) at 71.

59 ibid.

60 Q4:32.

61 Y Qaraḍāwi, ‘The Status of Women in Islam’ (trans M Gemeaah) (nd) www.scribd.com/ doc/13460421/The-Status-of-Women-in-IslamQaradawy at 10.

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Homicide, Bodily Injuries and Gender

Furthermore, advancement in science and technology and graduation from ­agrarian to industrialised societies suggest that the traditional gender role as exemplified by Al-ʿAbādī may no longer stand in today’s modern society. Women are now active participants in almost all areas of economic activity. This therefore has blurred the already gendered social structure painted by Al-ʿAbādī. Such characterisation is, at best, an articulated description of the pre-modern social stratification which, in the words of JND Anderson, was ‘an attempt to maintain the ratio of tribal strength, at a time when the loss of an actual or potential fighting man was far more seriously regarded than that of a mere woman’.62 In today’s world, technological advancement has made it possible for women to have the potential to perform tasks that hitherto were thought to be the monopoly of men. Like a man, in modern warfare, a woman can hold a gun, squeeze a trigger or detonate a bomb, causing serious devastation. She is also capable of managing a difficult engineering project, as now it is all a matter of acquisition of skills through education. Little wonder that women are now employed in almost all jobs imaginable. They are engaged in professions that entail both physical and intellectual exertion like legal practice, teaching in educational institutions, working in engineering firms, in military and para-military services, and even politics. Conversely, the domestic activities, which Al-ʿAbādī considers ‘unbefitting of men’ of his time, are increasingly becoming a major source of income for many men. Cooking is now professionalised and is no longer an exclusive preserve of women. Men now serve as chefs not only in major hotels and restaurants but also in private residences. Families tend to carry out domestic activities together as they struggle to work outside their homes to earn a living.63 This social revolution phenomenon suggests that productivity in the modern age has gone beyond mere exertion of physical strength say, in warfare, farming or food processing in factories. Mental exercise in research institutions, academia etc is not a monopoly of men; neither is the operation of machinery. The fact that both sexes have the ability to learn these trades, which are ‘acquired’ and not ‘innate’, make them prone to causing fatal injuries or even death to others through accidents in the use of machinery in the workplace, in driving of vehicles, etc, even though the proportion is still high with respect to men. This shows that the traditional gender role is becoming hazy, raising a serious question to Al-ʿAbādī’s proposition, at least, in the contemporary period.

62  JND Anderson, ‘Homicide in Islamic Law’ (1951) 13(4) Bulletin of the School of Oriental and African Studies, University of London 811–28 at 815. 63  A Milan, L Keown and CR Urquijo ‘Families, Living Arrangements and Unpaid Work’ (December 2011) www.statcan.gc.ca/pub/89-503-x/2010001/article/11546-eng.pdf.

Compensation for Bodily Injuries

 35

VII.  Compensation for Bodily Injuries Compensation here applies to unintentional injuries or cases where exact retribution cannot be possible. This is another area which engaged the fiqh jurists in intellectual exercise along gender lines. As earlier noted, there is no retribution across genders in bodily injury under the classical teaching of the Ḥanafi School. In such cases, the victim receives an indemnity from his/her assailant in monetary terms, regard being had to his/her gender as per the biological determinist approach explained by Al-ʿAbādī. Injuries here could be facial (shijāj), injuries extending to body cavity of the trunk (jāʾifah), bodily wounds (jurūḥ) or loss of any limb or faculty such as sight, hearing etc (itlāf al-ʿudw). Thus, any limb of a man that is in pairs such as a leg or a hand attracts half of full diyah, as against that of woman, which attracts only one quarter of that of a man.64 The Māliki School, on the other hand, uses different approaches, but the prevailing view of the school is that in all cases of bodily injury, equal compensation applies to both sexes up to the maximum of one third of a man’s diyah.65 In other words, equality ceases where the aggregate claim of compensation for injuries sustained by the woman is more than one third of a man’s diyah. Her claim is reduced and quantified based on half of a man’s diyah.66 This is the position of Mālik and his disciples.67 This school relied on the fatwas of successors (ṭābiʿun),68 who, in turn, relied upon the views of some companions of the Prophet like Zaid b Thabit (d 45 AH/666 AD) and Abdullāh b ʿAbbās (d 68 AH/643 AD).69 The Ḥanbalis support this view, although there is no agreement on whether to maintain the equality ‘up to’ or ‘below’ one third of the man’s diyah.70 Applying this principle to a hypothetical case: where Mr A, a truck driver, unintentionally hits Miss B and she sustains serious injuries such that her legs have to be amputated, Mr A is liable to indemnify her £5,000, ie half of a man’s diyah, because her claim is more than one third of a man’s diyah. Under this principle, the woman is better off if the injuries inflicted on her are less severe, for she gets more since it is going to be based on a man’s diyah. Thus, she gets £3,000 where the injury sustained is limited to loss of three toes since the aggregate claim is below one third of a man’s diyah, which is £3,333. For four severed toes, however,

64 

A Al-Kāsāni, (n 21) vol X at 310. Crime and Punishment in Islamic Law (n 12) at 53. 66  A Mālik, Al-Mudawwanat al-Kubra, vol IX (Beirut, Dār Kutub al-ʿIlmiyyah, 1994) at 627–28; SH Al-Bāji Al-Muntaqa Sharḥ al-Muwaṭṭa (n 28) vol VII at 78. 67  Ibn Rushd (n 20) at 513. 68  Like Saʿīd b Musayyib (d 94 AH/711 AD), ʿUrwat b Al-Zubayr (d 94 AH/711 AD) and Muḥammad b Abībakar Al-Zuhrī (d 124 AH/741 AD). 69 Al-Bāji(n 28) vol VII at 78. 70  M Al-Maqdisī, Kitāb al-Furūʿ, vol X (Beirut, Al-Resalah Publishers, 2003) at 9; AS Al-Mardāwi, Al-Inṣāf (n 28), vol X at 49–50. 65 Peters,

36 

Homicide, Bodily Injuries and Gender

her entitlement is only £2,000. This means that the more aggravated the injury, the less the compensation she receives. Another approach of the Māliki School, which is a minority view, maintains gender equality, in the assessment of compensation for minor wounds and injuries, only up to the category of injury known as mūḍihah.71 Therefore, they quantify injuries of women above the mūḍihah based on the half diyah principle. The third caliph, Uthmān b ʿAffān (d 34 AH/656 AD), and Abdullāh b Masʿud (d 32 AH/654 AD) were among the notable companions holding this view; so was Shurayḥ.72 For better appreciation, Muslim jurists catalogue the facial injuries (shijāj) in the following order: 1. 2. 3. 4. 5.

6. 7. 8. 9.

10.

ḥāriṣah, a bruise that ruptures the skin or mere scratch; dāmiyah, a bruise which causes blood to flow; bāḍiʿah, an injury that exposes the flesh; mutalāḥimah, an injury that severs or pierces the flesh deeply; simḥāq an injury goes deep into the flesh but does not reach the bone or as Ibn Rushd puts it, an injury that ‘reaches the thin (fibrous) membranes between the flesh and the bones (periosteum)’; mūḍiḥah, an injury that exposes the bones; hāshimah, an injury that breaks or crushes the bones or a fracture of the skull; munaqqilah, an injury that dislocates the bone or moves it to fall apart; maʾmūmah/ʾāmmah, an injury that reaches the cerebral membrane ie the ­casing of the brain such that only t a thin membrane remains between it and the brain; and dāmighah, an injury that extends to the brain.73

It is noteworthy that injuries under items (1) to (5) have no specially allotted ­tariffs and are left to be assessed by the judge, taking into account the nature, ­location and intensity of the sustained injury under the term technically referred to as ‘ḥukūmat ʿadl’.74 Some scholars do not include dāmighah under the categories of shijāj injuries but as homicide, as it is uncommon for a person who suffers such an injury to survive.75 Note that in the following injuries, ie ḥāriṣah, dāmiyah, bāḍiʿah, mutalāḥimah and simḥāq, there is no gender disparity. Likewise, in the case of mūḍiḥah, since it attracts only one twentieth of a man’s diyah, ie five camels or its equivalent. However, there is disparity for the remaining categories, ie hāshimah, munaqqilah, 71 

Ibn Rushd (n 20) at 513.

72 ibid.

73  MS Hallaq, Fiqh According to the Qurʾān and Sunnah (A Translation of the Book Al-Lubāb Fī Fiqh al-Sunnah Wa al-Ḥadīth), vol II (Riyadh, Maktabat Darussalam, 2008) at 488–89; A Al-Mauṣili, Al-Ikhtiyār li Taʿlīl al-Mukhtār, vol IV (Damascus, Al-Risalat al-ʿĀlamiyyah Publishers, 2009) at 322–26; see also Ibn Rushd (n 20) at 506 for more details. 74  MA Al-Sarakhsi (n 21) vol XXVI at 131. 75 ibid.

Compensation for Bodily Injuries

 37

maʾmūmah and dāmighah. They and the jāʾifah generally attract compensation, and no retribution applies, even where the injury is intentional. This is due to the difficulty in ascertaining the extent of the injury with precision, although the prevailing view suggests the likelihood of ascertaining the extent of the injury.76 The hāshimah is allotted one tenth of diyah (1/10 x 100 = 10 camels), munaqqilah attracts three twentieths (3/20 x 100 = 15 camels), while maʾmūmah and jāʾifah each attracts one third of diyah (1/3 x 100 = 33 camels). What could have been the logic of ‘up to one third principle’? Could this have emanated from the Qurʾān or Sunnah of the Prophet? It is interesting to note that there were heated debates among the classical scholars on retribution for injuries and the ‘up to one third formula’. Despite their resort to unquestionable reverence, early Muslim jurists, particularly the more liberal ones, had cause to challenge the justice of the ‘up to one third formula’ in view of its apparent irrationality and discordance with common sense. Al-Sarakhsi produces a conversation between Rabīʿah Ibn Abī ʿAbdurraḥmān Al-Madani (d 136 AH/754 AD)77 and Saʿīd b Musayyib (d 94 AH/715 AD), both of them successors of the companions of the Prophet. Rabīʿah asked Saʿīd about the liability of a man who severs one finger of a woman. Saʿīd answered that he is liable to 10 camels. Rabīʿah asked of the man’s liability if he severs two or three fingers, and Saʿīd said the man is liable to 20 and 30 camels respectively. He asked further, ‘what if the severed fingers are four? Saʿīd said, ‘the man is liable to 20 camels’. Rabīʿah exclaimed ‘Subḥānallāh! (Glory is to God!) Having subjected her to more pains and loss yet she receives less?’ Saʿīd retorted, asking Rabīʿah whether he was a Bedouin. Rabīʿah said he was neither a Bedouin nor insane but was only seeking guidance. Saʿīd said it was the Sunnah.78 As noticed from the above, Rabīʿah felt strongly about this principle, which Saʿīd b Musayyib was enthusiastically relaying, but he could not but defer without attempting to verify the genuineness of the narration. One thing worth noting in this narrative is the fact that the term ‘Sunnah’ features prominently in it, suggesting that the ‘up to one third’ principle is from the second source of Islamic law, ie the Sunnah of the Prophet Muḥammad (PBUH). Generally, Muslims take any authenticated statement attributed to the Prophet with unquestionable reverence. This seeming attribution to the Prophet might explain the inaction of Rabīʿah upon hearing that it was Sunnah. The question that readily comes to mind is whether this statement comes from the Prophet by the mere use of the term ‘sunnah’ in the narrative. It is noteworthy that the word ‘sunnah’ had wider application during the first century of Islam.79 It was not limited only to the conduct, sayings and tacit approvals of the Prophet

76 

ibid, vol XXVI at 132. those who opposed the ‘up to one third formula’ include Rabīʿah Ibn Abī ʿAbdurraḥmān Al-Madani (d 136 AH/754 AD), the Shāfiʿi and Ḥanafi School. 78  M Al-Sarakhsi (n 21) vol XXVI at 141. 79  W Hallaq, The Origins and Evolution of Islamic Law (New York, Cambridge University Press, 2005) at 49. 77  eg

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Homicide, Bodily Injuries and Gender

Muḥammad (PBUH) but was also used for ‘model behaviour’ or ‘good conduct’ of any person.80 It was often used in reference to an ‘established course of conduct or a continuous practice’ of pre-Islamic Arabs.81 Therefore, the pre-Islamic Arabs considered the Prophet’s mission of monotheism as an affront to and encroachment upon their ‘sunnah’ of idol worship.82 In his farewell sermon, Prophet Muḥammad admonished Muslims on the importance of following his sunnah (his example) and the sunnah of his rightly guided caliphs.83 This demonstrates a distinction between his practice and the practices of other persons, as sunnah was not specifically consigned to the practices of the Prophet alone. Some scholars have given the conduct of the companions, based on their independent reasoning, the status of sunnah, although such tendencies were severely criticised by Al-Shāfiʿi.84 It is on record that it was only towards the end of the second century of Islam that the concept of sunnah was restricted to the practice of the Prophet following the monumental work of Muḥammad b Idris Al-Shāfiʿi (d 204 AH/820 AD) known as Al Risālah.85 This he did by delimiting the term ‘sunnah’ and declaring that, after the Qurʾān, only the established Sunnah of the Prophet can serve as the basis for ‘valid legislation’.86 He based his position on a number of Qurʾānic verses such as Q4:82, 4:68, etc, thus suggesting that no pronouncement of any person can have such sanctity.87 With this in mind, if we go back to the encounter between Rabīʿah and Saʿīd b Musayyib, who was no doubt a great scholar and successor (tābiʿī) to the ­companions, we will discover that no such limitation was provided for the term ‘sunnah’ during his lifetime. The term may have had a wider application during the period under review. The application of the term ‘sunnah’, in the limited sense, began towards the last lap of the second century of Islam. This earned Imām Shāfiʿi the accolade of the ‘champion of sunnah’ (Nāṣir al-sunnah).88 Shāfiʿi did not meet Saʿīd b Musayyib as he was born in 150 AH/767 AD, more than 50 years after the demise of Saʿīd b Musayyib, who died in 94 AH/715 AD. It was therefore possible to construe the opinion of a companion or even a successor as ‘sunnah’. In Rabīʿah’s encounter with Saʿīd b Musayyib, the latter used the word ‘sunnah’ without qualifying it as Sunnah of the Prophet or of any other companion.

80 ibid.

81  S Abdul Hannan, Usūl al-Fiqh (Islamic Jurisprudence) (1999) available at www.2muslims.com/ books/usul_al_fiqh.pdf. 82  MI Al-Shāfiʿi, Al- Risālah fi Usūl al-Fiqh (Treatise on the Foundation of Islamic Jurisprudence), 2nd edn (trans M Khadduri) (Cambridge, The Islamic Texts Society, 1987) at 6. 83  SE Al-Djazairi, A Short History of Islam (Manchester, The Institute of Islamic History, 2006) at 62. 84  MH Kamali, A Textbook of Ḥadīth Studies: Authenticity, Compilation, Classification and Criticism of Ḥadīth (Leicestershire, The Islamic Foundation, 2009) at 58. 85 Al-Shāfiʿi, Al- Risālah fi Usūl al-Fiqh (n 82) at 36. 86 ibid. 87 ibid. 88  MH Kamali, A Textbook of Ḥadīth Studies (n 84) at 3.

Compensation for Bodily Injuries

 39

This strengthens Al-Sarakhsi’s critique, as we shall see below, that the ‘up to one third’ principle must be taken to mean simply the sunnah of Zaid b Thābit.89 The uncertainty as to the exact meaning of ‘sunnah’ used in this narration had been a controversial issue since the second century of Islam. This was the reason why Shāfiʿi chose to employ analogy (qiyās) rather than relying on the said narration in formulating the principle of his school in this respect.90 Shāfiʿi is quoted as saying: we use to refer to it (ie Saʿīd b Musayyib’s narration), but we later stopped … because we know the person saying it is sunnah but we did not see where he linked it to the Prophet (PBUH). For that reason, analogy is a better choice for us in this case.91

Indeed, according to Al-Shafiʿi, Imām Mālik was calling the above narration ­‘sunnah’ and he followed him although he had some reservations about it. Later, it dawned on him that actually Mālik meant the practice of the people of Madīnah; upon discovering this, he stopped using it.92 Still in this connection, a prominent Māliki scholar, al-Qāḍī Abu al-Walīd Al-Bājī (d 474 AH/1081 AD) did not see the stance of his school as one having any basis from the Sunnah of the Prophet. His view suggests that the principle was the opinion of Zaid b Thābit and Abdullāḥi b ʿAbbās analogically deducted based on the diyah of an embryo (janīn).93 The uncertainty as to whether what in the embryo will be born alive or dead, made it necessary for a fixed share to be allotted by the Prophet for the embryo such that in any case, a person responsible will be liable to one twentieth of full diyah if he/she causes a miscarriage. According to Al-Bājī, the Māliki School takes a middle course by pegging the claim of a woman in bodily injury at a maximum of one third of a man’s diyah. He said that apart from the embryo, the Prophet had fixed one third as the maximum amount a person can bequeath from his estate by way of testamentary will (waṣiyyah). This, according to him, was the view of some notable scholars like Ibn al-Mawwāz (d 281 AH/894 AD), Abī Bakr b Jahm and al-Qāḍi Abī Muḥammad.94 The importance of the above analysis is to show the intellectual engagement of these schools with each other in trying to find a reliable position on these burning issues of diyah across genders. This intellectual tussle also points to the undeniable fact that subsequent generations are not foreclosed from debating them as it falls outside what Islamic legal theorists call definitive rulings (qaṭʾīʾ) to speculative (ẓannī).

89 

Al-Sarakhsi (n 21) vol XXVI at 141. AY Zaylaʿi, Naṣbu al-Rāyat li Aḥādīth Al-Hidāyah, vol IV (M ʿAwāmah, ed) (Beirut, Muʿassasat al-Rayyān, 1997) at 364. 91 ibid. 92 AA ʿAsqalāni, Talkhīṣ al-Ḥabīr, vol IV (Cairo, Muʾassasat al-Qurṭubah, 1995) at 49. 93 Al-Bāji (n 28) vol VII at 78. 94 ibid. 90 

40 

Homicide, Bodily Injuries and Gender

This work has considered the critique of Ibn ʿUlayyah and Al-ʾAṣamm against the unequal diyah earlier. Here, we are giving attention to the encounter between Saʿīd b Musayyib and Rabīʿah on bodily injury, which led to the Māliki School’s position of allowing equality between sexes only to the maximum of one third. This formulation was vehemently criticised by the Ḥanafis despite the former’s claim that it was ‘sunnah’. For instance, Al-Sarakhsi has refuted this assertion in furthering the view of his own school. He argues that this view adopted by the Mālikis emanated from Zaid b Thābit.95 As such, he characterises the narration as a ‘highly isolated view’.96 Al-Sarakhsi defended the gender differential formulation in bodily injury (jurūḥ) adopted by his school on the basis that it enjoyed the support of more prominent companions of the Prophet including ʿAli b Abī Ṭalib.97 The popular saying which created this gender hierarchy in homicidal cases ‘the compensation of woman is half that of man in loss of life and injury’, according to Al-Sarakhsi, is not the saying of the Prophet but something attributed to ʿAli.98 Little wonder, Al-Bājī faults the Ḥanafis on this point of view, saying that the narration emanated from a weak chain of narrators.99

VIII. Conclusion In the foregoing we have examined the classical discourse of the four major Sunni schools of Islam with a view to ascertaining how men and women fared in juristic formulations in matters of homicide and bodily injury. The survey revealed that it was a unanimous position of all the four Sunni schools of law that biological determinism played a significant role in that men are rated high with respect to compensation allotted for each gender. In addition to cross-contextual analogy, jurists employed economic argument using productivity, utility and responsibility as the guiding principles for quantifying the compensation. Notwithstanding the majority opinion, this phenomenon of unequal diyah has been contentious since the classical age, and remains questionable to date.

95 

Al-Sarakhsi (n 21) vol XXVI at 141. Shadhdh narration is a ḥadīth reported by a reliable person, which goes against the narration of many other reliable sources. cf with Munkar whose narrator is of doubtful character. See Kamali (n 84) at 148 for more details. 97 Al-Kāsāni (n 21) vol X at 310. 98  Al-Sarakhsi (n 21) vol XXVI at 140. 99 Al-Bāji (n 28) vol VII at 78. 96 A

4 Juristic Use of ʿĀqilah in Balancing Gender Disparity I. Introduction This chapter attempts to analyse the practical steps taken by the classical jurists to water down or, at least, minimise the disparity created by the diyah stipulations in the context of their historical period. In the previous chapter, we saw that the classical fiqh discourse favours men more than women particularly when one takes into account diyah stipulations across genders, which was premised upon the responsibility placed on men. To balance this disparity, the classical Islamic jurists have, through the institution of ʿāqilah, demonstrated that human beings have the capacity to establish justice, and that these jurists never intended to demean the worth of women by their prescriptions. Hence, the employment of the institution of ʿāqilah, ie solidarity group, which was originally a pre-Islamic and male-only institution, but adopted and applied with modifications by the Prophet Muḥammad and later the second caliph, ʿUmar b Khaṭṭāb. The chapter advances two arguments: on the one hand, it posits that taking into account the socio-economic factors prevailing during the early centuries of Islam, the classical jurists construed the institution accordingly. This, in essence, had helped in bridging the gender divide in this context. On the other hand, it argues that the transformation of ʿāqilah in line with the civilisational reality of the early years of Islam opens a window to rethink this institution. To that effect, exploring this institution is necessary given the changing perception of women in the modern world, coupled with the near impossibility of tribal ʿāqilah.

II.  Development of ʿĀqilah before Islam The pre-Islamic Arab culture had influenced the development of the Islamic legal tradition. There were many such traditions and customs that the Prophet Muḥammad (PBUH) adopted wholesale, modified or simply jettisoned for being inconsistent with the new legal order. The institution of ‘ʿāqilah’ was part of the good pre-Islamic customs (ʿurf) adopted and modified in Islam. Etymologically,

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Juristic Use of ʿĀqilah as Balancing Mechanism

the term ‘ʿāqilah’ is a derivation from ‘ʿaql’, meaning the practice of hobbling or fastening a camel at the doorstep of the next of kin of a slain person by the paternal male relatives of the killer, technically called ‘ʿaṣabah’.1 The action signified the latter’s readiness to end days of hostilities between them and the former by offering to pay the diyah.2 The release of the camel(s) by the offended clan entailed acceptance; thus, a compromise was reached.3 Literally, it is used in reference to the rope used in fastening the camels,4 or to those members of a killer’s clan jointly responsible for paying the diyah, usually the ʿaṣabah (agnatic male relatives) such as the father, paternal grandfather, full-brothers, half-brothers on the father’s side and their sons, and paternal uncles and their sons.5 It was usual for these closest male blood relatives to pool their resources together to pay the diyah based on solidarity and mutual assistance, where one of their members killed a member of another tribe. Their involvement served as security and assurance for the next of kin of the deceased, and prevented a revengeful attack from his tribesmen.6 The rationale behind agnatic male relatives constituting the solidarity group in pre-Islamic Arabia is rooted in their tribal structure as demonstrated in their system of inheritance. The practice of pre-Islamic Arabs was strictly patrilineal in the sense that only males from the father’s side were entitled to inheritance, and were known for their restiveness.7 It was a society notorious for hostilities among clans. Every clan required ‘adult able-bodied tribesmen’ to compete with other clans in wars, as that was what determined its strength and authority.8 They often disregarded any person incapable of partaking in war on the ‘principle of comradeship in arms’.9 Therefore, since by their physique, men are stronger and more aggressive, the system of inheritance was made male-biased and ‘purely agnatic’, and excluded women, minors irrespective of sex, cognates and invalids.10 The justification for this inheritance arrangement is as per their saying: ‘How could we give the heritage to who has never ridden the horse and who has never held a weapon and who has never taken part in the battle?’11 1 

MA Ramlī, Nihāyat al-Muḥtāj ilā Sharḥ al-Minhāj, vol VII (Beirut, Dār al-Fikr, 1984) at 369. MA Al-Shawkāni, Nayl al- Awṭār, vol XIII (HM Hallāq, ed) (Riyadh, Dār Ibn Al-Jawzī, 2006) at 212. 3 ibid. 4 ibid. 5  AK Máliki, Kifāyat al Ṭālib al-Rabbāni li Risālat Abī Zayd al-Qīrawāni, vol IV (Egypt, Al-Madinah Publishers, 1989) at 47. 6  MM Billah, ‘Islamic Insurance: Its Origin and Development’ (1998) 13(4) Arab Law Quarterly 386–422 at 388–90. 7  DS Powers, ‘The Islamic System of Inheritance: A Socio-Historical Approach’ in C Mallat et al (eds), Islamic Family Law (London, Graham & Trotman Limited, 1993) 11–29 at 11. 8  R Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (New York, Cambridge University Press, 2005) at 50. 9  G Adnan, Women and the Glorious Qurʾān: An Analytical Study of Women Related Verses of Sura an-Nisa (unpublished PhD thesis, Universitat Gottingen, 2004) 60 available at https://d-nb. info/99124933X/34. 10 ibid; HJ Liesbesny, The Laws of the Near and Middle East: Readings, Cases and Materials (New York, State University of New York Press, 1975) at 174. 11 Adnan, Women and the Glorious Qurʾān (n 9) at 193. 2 

Classical Fiqh Discourse on ʿĀqilah

 43

This pre-Islamic hangover was evident in the early years of Islam as it is on record that when the verses of inheritance (āyāt al-farā’idh) were revealed the Arabs were surprised and they felt strongly about it hoping that it would be abrogated in future. Indeed, they were even urging each other not to reckon with the verses, perhaps the Prophet SAW might forget about them.12 Their argument is simple; ‘how can they give a wife one-fourth or one-eight, a daughter, one-half of the estate, and also give a small boy a share when none of them can take up arms and fight….?’13 Some of them even garnered the courage of approaching the Prophet SAW querying him thus; ‘shall we give a small boy a share when he cannot do anything; and give a girl half the estate of her deceased father when she cannot ride a horse and fight?’14 Under the system male agnates (ʿaṣabah) were made to share joint responsibility for providing security and defence. The whole clan must defend the p ­ erpetrator of a blameworthy act, whether the act that led to death or physical injury was intentional or accidental.15 They also bore the burden of payment of diyah mutually and were to benefit from the compensation made to their clan.16 This joint responsibility created a social solidarity and collaboration among tribesmen as comrades-in-arms. It is however an exaggeration to claim that Arabia before Islam was a monolithic entity. The author is aware of the matrilineal system in preIslamic Arabia; the argument made here is, there existed varied cultural norms and practices just as there were many clans, but the patrilineal system of inheritance was the prevailing and dominant practice.17 Apart from preventing reprisal attack from the offended clan, sharing responsibility for paying compensation among the solidarity group members was also a means of dousing tribal tension between warring clans. It equally served as a tool for cementing inter-ʿāqilah relations, as it discharged the offender from suffering the ultimate punishment in return for the compensation paid by his group.

III.  Classical Fiqh Discourse on ʿĀqilah A majority of the jurists of Sunni schools agree that the concept of ʿāqilah has the endorsement of the Prophet Muḥammad. Maṣlaḥah, ie public welfare was the basis for ʿāqilah and that it is an exception to the general rule of the established

12 

A Sabouni, Al-Mawārīth fi Sharīʿat al-Islāmī (Cairo, Dar al-Sabouni, 2002) at 16.

13 ibid. 14 ibid. 15 

HAR Gibb et al, Shorter Encyclopaedia of Islam (The Netherlands, E J Brills, 1964) at 29.

16 ibid.

17  For more on this, see H Abd Al-‘Ati, Family Structure in Islam (Plainfield, American Publication Trust, 1995) at 10.

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Juristic Use of ʿĀqilah as Balancing Mechanism

principle of personal responsibility.18 They are also unanimous that one rationale for imposing diyah on ʿāqilah is to lighten the burden on the actual perpetrator of the act.19 On the other hand, scholars like Abūbakar Al- ʾAṣamm were opposed to the imposition of such burden on ʿāqilah on the ground of the general rule of criminal responsibility that individuals are only liable for their actions. They supported their view relying on the following Qurʾānic verse: ‘Every soul draws the meed of its acts on none but itself: no bearer of burdens can bear the burden of another’.20 According to this view, this verse has rendered irrelevant the ʿāqilah institution, as it is in direct contrast with the Quran, which disapproved of joint penal responsibility.21 Notwithstanding the above, the fact that the institution has the endorsement of Prophet Muḥammad leaves no room for one to doubt its legality. More so, the Prophet had modified its pre-Islamic feature by limiting the participation of ʿāqilah only to cases of unintended acts. Intentional acts of homicide and bodily injury remains the obligation of the perpetrator alone. The wisdom of imposing liability for diyah on ʿāqilah is that nobody is immune from committing acts of misadventure that could lead to disastrous consequences like death. Imagine a situation where Mr A lost control of his van and ran over three persons by the roadside. How will the family of these deceased persons survive in societies lacking in any social security? If Mr A is to compensate these families, how will he be able to bear such an enormous burden? Such a scenario certainly calls for rendering assistance to such person, because if he is left with the whole burden, his life savings may sink in and will be unable to liquidate the claim. The resultant effect of his failure would render the life of his victims worthless.22 Besides, it is the duty of ʿāqilah to watch over the conduct of its members. Thus, there is a legal presumption that the wrongdoer would not have acted in the way he/she did, had the ʿāqilah not neglected its duty.23 This is perhaps one area where classical jurists employed conciliation (Al-jamʿ) to reconcile the apparently contradictory authorities. The missing link, which the jurists capitalised upon, is the fact that Q6:164 is limited to intentional acts, thereby placing the responsibility for unintentional acts on the solidarity group. The reasons given by both ‘pro-ʿāqilah’ and ‘anti-ʿāqilah’ groups seem to project the institution as ‘perpetrator centred’. There is hardly any reference made in

18 AA ʿAsqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri, vol XVI (NM Al-Fāriyabi, ed) (Riyadh, Dār al-Ṭaibah, 2005) at 525. 19 ibid. 20 Q6:164. 21 A Al-Kāsāni, Badāʾiʿ al-Ṣanāʾiʿ fi Tartīb al-Sharāʾiʿ (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) vol X at 311. 22 Asqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri (n 18) vol XVI at 103; M Al-Sarakhsi, Al-Mabsūṭ, vol XXVII (KM Al-Mays, ed) (Beirut, Dār al-Fikr, 2000) at 227; Al-Shawkāni, Nayl al- Awṭār (n 2) vol XIII at 212. 23 Al-Kāsāni, Badāʾiʿ al-Ṣanāʾiʿ fi Tartīb al-Sharāʾiʿ (n 21) vol X at 451.

Classical Fiqh Discourse on ʿĀqilah

 45

the discourse to the consequential effect of ʿāqilah’s involvement on third parties, particularly the victim’s heirs. The pro-ʿāqilah dwell much in justifying the involvement of ʿāqilah as a means of aiding the perpetrator to pay the compensation while ignoring the victim’s side. On the other hand, the anti-ʿāqilah ­scholars de-essentialise the overriding welfarist significance of the institution on both the victim and the perpetrator, thereby placing on the individual an unbearable burden. The absence of this ‘victim’s heir-centred welfare component’ may have been responsible for questioning the relevance of the solidarity group in modern days, as shall be discussed in due course. It is submitted that the institution, if reconstructed broadly, by taking into cognisance the two components ie. ‘perpetratorcentred’ and ‘victim-centred element’, the purpose (maqṣid) of constituting the ʿāqilah institution would be achieved. The institution of ʿāqilah, as construed by the classical jurists, radically tilted more in favour of women in a number of ways. This suggests that their non-­ inclusion was a positive discrimination given their socio-economic position. As alluded to earlier, the nature of the Arabian social setting enabled monopolisation of the public sphere by men. Apart from this, women are entitled to have any claim for compensation against them defrayed by their ʿāqilah. In other words, even where a woman is the perpetrator of murder or grievous bodily injury, albeit unintentional, she is still not responsible for paying the diyah; it is paid by her ʿāqilah.24 Women are also entitled to inherit the diyah paid for killing their ­husbands. This is another departure from the pre-Islamic practice where ʿāqilah were the sole beneficiaries. The exemption of women in this contributory scheme portrays what justice under the law, as interpreted by the classical jurists, seeks to maintain among the sexes. The modern Sharīʿah Penal Codes do not fully reflect the maximum ­utilisation of this institution as the classical jurists, as we shall see in the case studies. A cursory look at the utilisation of the ʿāqilah institution reveals that the ­classical jurists must have approached this idea of justice across genders from the point of view of a broad definition and construction of ‘qawāmāh’, as per Q4:34.25 By implication, this means men and women are independent groups, and thus pursue justice in the nature of fairness to group and not to individuals. The wider construction given to qawāmāh might be the reason why the classical jurists exempted women from contributing to the common pool of ʿāqilah. It is, however, argued that such a construction overshoots the boundaries within which the term ‘qawāmāh’ operates. For it pertains only to domestic and not public relations, when viewed contextually, by taking into account the preceding and

24 

Al-Sarakhsi (n 22) vol XXVII at 324. are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means’. 25 ‘Men

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Juristic Use of ʿĀqilah as Balancing Mechanism

proceeding verses.26 Besides, as earlier highlighted, the verses on ‘qawāmāh’ are descriptive and not prescriptive.

IV.  Extent of ʿĀqilah’s Obligation The fact that ʿāqilah is vested with the obligation of paying compensation in unintentional acts does not necessarily mean its assistance avails the perpetrator at all times. The law has provided a limit to the extent of ʿāqilah’s obligation. Generally, ʿāqilah indemnifies only unintended acts. Therefore, intended acts which culminate in grievous injury or death, are borne by the perpetrator. Similarly, the perpetrator is liable, where, upon admission, he reaches agreement with the victim or heirs of a deceased to accept diyah.27 However, the Saudi Arabian Fatwa Standing Committee as per its ruling no 6,268 states that even in intentional acts, any member of a perpetrator’s ʿāqilah may assist him where the deceased’s family agrees to accept diyah.28 This means that in intentional acts no obligation is placed on the ʿāqilah. There is however no consensus on the extent of the members’ obligation. According to Māliki and Ḥanbali scholars, ʿāqilah will be liable if the claim of compensation exceeds one third of the perpetrator’s diyah,29 one twentieth according the Ḥanafis,30 while the Shāfiʿi School made ʿāqilah responsible for payment of any compensation irrespective of quantum.31 It is clear from these viewpoints, in mistaken acts of death or injury, that ʿāqilah takes substantially the burden away from the perpetrator. He either has no burden at all or is required to pay the least claim where the quantum is not burdensome. Of course, if we take the view of anti-ʿāqilah seriously, in all circumstances, the perpetrator is squarely liable. The Māliki School’s stipulation appears tough, as the perpetrator is not assisted until the quantum of the claim exceeds one third of full diyah. The School has used an ingenious formula to lessen the burden especially on women in this case. According to the classical construction, the victim’s gender

26  NH Barazangi, ‘Vicegerency and Gender Justice in Islam’ in NH Barazangi et al (eds), Islamic Identity and the Struggle for Justice (Florida, University Press of Florida, 1996) 77–94 at 88. For detailed analysis of the term qawāmāh, see SA Cheema, ‘The Concept of Qawama: A Study of Interpretive Tensions’ (2009, unpublished) www.researchgate.net/publication/242537281_The_Concept_of_ Qawama_A_Study_of_Interpretive_Tensions. 27 G Kramer, Encyclopaedia of Islam, THREE (2007) www.brillonline.nl/subscriber/uid=1518/ entry?entry=ei3_SIM-0383; Peters, Crime and Punishment in Islamic Law (n 8) at 49. 28  AA Duwaish (ed), Fatāwa al-Lajinat al-Daʿimah, vol XXI (Riyadh, Dār al-Muīd, Riyadh, 2002) at 238. 29  A Mālik, Al-Mudawwanat al-Kubra, vol IV (Beirut, Dār Kutub al-ʿIlmiyyah, 1994) at 627–28; AG Al-Nafrāwi, Al-Fawākih al-Dawānī fi Sharḥ Risālat Ibn Abī Zayd al-Qīrawāni, vol II (Beirut, Dār al-Fikr, 1995) at 192. 30 Al-Kāsāni (n 21) vol X at 451. 31  ibid; see also Ramlī, Nihāyat al-Muḥtāj ilā Sharḥ al-Minhāj (n 1) vol VII at 370.

Extent of ʿĀqilah’s Obligation

 47

­determines his or her diyah. However, in ascertaining when ʿāqilah’s assistance is invoked, the question is, what is the stipulated diyah of the perpetrator of the act?32 Thus, using the previous example of £10,000, if Mr ‘A’, a truck driver hits Ms ‘B’ and she dies as a result, Mr A is liable to £5,000 as the stipulated diyah of Ms B. However, since it is Mr A’s stipulated diyah that is the determinant of ʿāqilah’s participation, the question is whether the amount of compensation claimed by Ms B’s relatives is more than one third of Mr A’s diyah. Apparently, in the circumstances, ʿāqilah is under a duty to pay on Mr A’s behalf, since one third of Mr A’s diyah is below £5,000 (1/3 of £10,000 = £3,333.33). However, where the accident only results in the loss of Ms B’s leg, the stipulated amount of compensation for Ms B’s leg is £2,500. In this case, the magnanimous hand of ʿāqilah will not come to Mr A’s rescue, since £2,500 is below one third of his diyah (1/3 x £10,000 = £3,333.33). Mr A, in this case, will have to pay up the total amount of the compensation claimed. Conversely, let us consider the scenario where Ms B is the truck driver and she kills Mr A in an accident. The amount of compensation payable to Mr A’s family doubles Ms B’s compensation. As such, her ʿāqilah is duty bound to pay the entire sum on her behalf. Her ʿāqilah is equally responsible where the injury Mr A sustains is only loss of a leg, for the stipulated diyah of his leg is £5,000, an amount far more than one third of Ms B’s diyah (1/3 x £5,000 = £1,666.66). The justice of this criterion becomes obvious where a woman is now the perpetrator. If we apply the criterion of the Māliki School, as illustrated above, Ms ‘B’ will, in the majority of cases, be spared of making any payment. The ‘allmale ʿāqilah’ will come in and indemnify Mr A or his family. Ms B will not be personally liable, since in both cases, the amount of compensation demanded is over one third of her diyah (1/3 of £5,000 = 1,666.66). Indeed, for a woman to be personally liable for causing bodily injury to a man, the injury must be relatively minor, such as dismemberment of a finger, which attracts 10 camels or its equivalent, as its stipulated diyah. Where the fingers removed are up to two, her personal liability ends, and her ʿāqilah bears the burden. The reason is simply that the stipulated diyah of two fingers of a man is 20 camels, a number above one third of woman’s diyah, which is about 17 camels (1/3 x 50). On the other hand, āqilah’s benevolence avails the man only in cases where the claim is enormous. Thus, where the injury caused to the woman is say, an accidental dismemberment of three fingers, her entitlement will be 30 camels. Going by the ‘one third formula’ discussed earlier, 30 camels are below one third of a man’s diyah (1/3/ x 100 = 33.3). Therefore, he is liable personally. Indeed, to be availed of ʿāqilah’s assistance, the injury (ies) caused her must be of such gravity as to attract at least 35 camels.

32 Mālik, Al-Mudawwanat al-Kubra (n 29) vol IV at 628; Māliki, Kifāyat al Ṭālib al-Rabbāni li Risālat Abī Zayd al-Qīrawāni (n 5) vol IV at 47.

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Juristic Use of ʿĀqilah as Balancing Mechanism

One may be tempted to ask what could have been the financial or economic implication of the involvement of ʿāqilah on men and women in murder cases. A careful analysis of this reveals that employment of the ʿāqilah institution as a veritable tool for balancing gender disparity is apparent in the classical stipulation of diyah. It works more to the advantage of women, as both a corrective and a protective measure. Secondly, the fact that ʿāqilah’s assistance is not always forthcoming to men has the potential to prompt them to be extra careful in their daily activities. This is because, compared with women, ʿāqilah only comes to the rescue of men in very few cases. Thirdly, it takes into account the state of economic disempowerment of women, within the context of the jurists’ own time, in giving them a wholesale exemption from contributing to the common pool. It also lessens their obligations, as it is only in few cases that they have to pay for the injury caused. Fourthly, superior and inferior divide was not the basis for the differential treatment along gender lines in the stipulation of diyah and other sundry matters, as propounded by the classical jurists. The economic potentiality of both sexes is one important variable that influenced them significantly in their extrapolation of legal rules from the primary sources.

V. Rethinking ʿĀqilah in the Modern Era The discourse on ʿāqilah as highlighted has been bedevilled with literalism. This has obscured its significance to both the perpetrator of the unintended homicidal act and the victim’s heirs, leading to the debate on its relevance or otherwise. In this section, it is proposed that it is necessary to have a rethink of this institution by allowing for a broader definition so that it can serve as a social safety net for both an accused and his or her victim’s/victims’ families in the contemporary world. To actualise this it must be construed on a realistic contemporary framework, taking into account the huge transformation experienced today beyond what was witnessed in the classical age of Islamic civilisation. It is argued that the essence of the solidarity group is financial capability to contribute to the common pool. Conclusively, since the nature of social relationship has changed, the institution could accommodate both genders as contributories to the common pool of ʿāqilah; of course, measures may be put in place to ensure that the vulnerable groups are not overburdened. The clannish system upon which the institution was based classically no longer exists, and has now been replaced by modern states organised geographically. Now residents of a given geographical entity should be deemed as ʿāqilah under what one may characterise as a ‘citizenship solidarity paradigm’. This new paradigm would necessitate focusing more on the ‘actual’ financial ability of individuals and not gender. The argument here is that the institution of ʿāqilah is not watertight but can be transformed regard being had to context. The advent of Islam introduced tremendous changes in all spheres of pre-Islamic Arabian life. One will appreciate

Rethinking ʿĀqilah in the Modern Era

 49

the transformation of the institution of ʿāqilah taking into account the changes in the social landscape of Arabia after the emergence of Islam. Law of just retribution replaces and outlaws the penchant for vengeance spree known in the pre-Islamic Arabia. This limits the responsibility of clan members from liability in murder cases. Under the new legal order, the offender, as an individual, is now to be responsible for his actions and liable individually to suffer for any death or injury caused, ie ‘life for life’. The erstwhile notion of joint penal responsibility was ­abolished and replaced with individual responsibility as per the following verse: ‘Every soul draws the meed of its acts on none but itself: no bearer of burdens can bear the burden of another’.33 By the new order, a person would no longer be able to hide in the shade of tribal or group solidarity to get away with his offence. That being the case, intentional and deliberate wrongful acts that cause death remain the responsibility of the perpetrator. He is punishable with retribution (qiṣāṣ) unless the victim’s heirs pardon him, either absolutely or in return for recompense. However, cases adjudged as unintentional afforded the sympathy of the ʿāqilah, as the law places a duty upon them to assist their member in the circumstances.34 Another noticeable feature of the formative period of Islam was the emphasis on close blood relatives, usually one’s heirs, as against the erstwhile tribal a­ ffiliation.35 Payment of compensation in unintentional homicides was now to the heirs of slain person and not to the members of his/her clan or tribe of a deceased. The Holy Qurʾān captured it as follows: Never should a believer kill a believer; but (If it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely.36

As observed, the Qurʾānic verses cited above hold individuals responsible for unintended homicides and make no reference to the solidarity group (ʿāqilah). However, there is an avalanche of cases where the Prophet Muḥammad endorsed this principle of joint responsibility in payment of compensation in unintended homicide based on the principle of public welfare (maṣlaḥah).37 The Prophet exemplified this when he placed the burden on the solidarity group of a woman from the clan of Banū Hudhayl. It is reported that two married women from the clan of Hudhayl fought and in the course of the scuffle one of them died leaving behind her husband and a child. The Prophet ordered the ʿāqilah of the surviving woman to pay compensation to the widower of the slain woman and the child.38 Indeed, the ʿāqilah of the deceased woman, as her pre-Islamic legal heirs, wanted

33 Q6:164. 34 Ramlī 35 

(n 1) at 370. Powers, ‘The Islamic System of Inheritance’ (n 7) at 11.

36 Q4:92. 37 AA

ʿAsqalāni, Fatḥ al Bārī fi Sharḥ Saḥīḥ al-Bukhāri (Beirut, Dar al-Fikr, 2005) vol XVI at 103. (n 2) vol XIII at 210: hadīth 3084.

38 Al-Shawkāni

Juristic Use of ʿĀqilah as Balancing Mechanism

50 

to claim the diyah but the Prophet declined their request and ordered that it be for her husband and the child.39 It is submitted that the above narration demonstrates a departure from the ­pre-Islamic tradition of payment of compensation to the agnatic relatives. Now, it is paid to the deceased’s heirs as a social security cover meant to cater for their needs. The payment is not a replacement but only to relieve their agonies and loss of the departed soul. If it were otherwise, the diyah in the above case would have gone to the woman’s ʿāqilah who demanded it, given their role in providing necessary protection to all the female members of their clan. Placing the burden on the woman’s ʿāqilah also demonstrates that putting the payment of diyah on the perpetrator of the act alone would hardly yield the intended result of providing financial support to the victims of the terminal act. Because the purpose was not to punish the woman for what she could not have avoided, the Prophet required her ʿāqilah to pay. This observation becomes clearer when one takes into account the exemption accorded a certain solidarity group from paying compensation because of financial incapacity. In that case, some juveniles cut the ear of a boy from a noble and rich background. When ordered to pay compensation for the acts of their children, the āqilah pleaded poverty and the Prophet relieved them from paying the diyah, by paying it from the public treasury.40

VI.  Woman’s Individuality as Property Owner The new legal order introduced by Islam gradually phased out the social prejudice suffered by women, as she is now co-equal and holder of rights as the male counterpart. This is clear from this Qurʾānic provision: The Believers, men and women, are protectors one of another: they enjoin what is just and forbid what is evil: they observe regular prayers, practise regular charity, and obey Allah and His Messenger. On them will Allah pour His mercy: for Allah is Exalted in power, Wise.41

This verse recognises a woman’s individuality and makes her both a person with religious responsibility and a right holder. Women are also economically empowered through entitlement to inherit and own property, whether as children, sisters or parents. Qur’an 4:7 reads: There is a share for men and a share for women from what is left by parents and those nearest related, whether, the property be small or large—a legal share.42

39 ibid. 40 

ibid, vol XII at 214.

41 Q9:71. 42 Q4:7.

Woman’s Individuality as Property Owner

 51

Similarly, Qur’an 4:11 provides: Allah commands you as regards your children’s (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your ­children, are nearest to you in benefit, (these fixed shares) are ordained by Allah. And Allah is Ever All-Knower, All-Wise.

The right to transact business and the right to serve as witness in commercial transactions commonly done outside the matrimonial home have been accorded to women via Q2:282. The ḥadīth of Abu Saʿīd al-Khuḍri also supports the claim that women have been empowered to transact business. He narrated that Zainab, the wife of ʿAbdullāh b Masʿūd came to the Prophet and said, ‘today you have enjoined us to do charity and I have some ornaments I want to give out, but my husband, ʿAbdullāh is claiming that he and his children are more entitled to my charity. Upon hearing this, the Prophet said he has spoken the truth; your ­husband and your children are more entitled to receive your charity’.43 Above all, a woman is entitled to the equal right to educational attainment as her male counterpart. This transformation brought to end the systemic denial of rights, which was always culturally defined.44 It appears difficult to lay one’s hand on any ḥadīth that reported exclusion of women from being contributing members of a solidarity group. The above ­narration involving a woman from the clan of Banū Hudhayl hardly supports her exclusion. All it seeks to demonstrate is that in cases adjudged as unintentional the perpetrator may not contribute in payment of compensation along with the solidarity group. Nevertheless, it is now taken as given that since only men constituted the ʿāqilah in the context of pre-Islamic Arabia, it must always be a male-only institution. This position did not take into account the fact that Islam elevates women from the near invalid state they found themselves in pre-Islamic era to the position of affluence. The mere fact that they have a fundamental right to own property shows that they have the potential of contributing to the socio-economic development of their respective societies. In essence, this suggests the possibility of reformulating the ʿāqilah to reflect this development. Interestingly, women under the new legal order brought by Islam are recognised as ʿaṣabah under the Islamic inheritance system. For instance, apart from being primarily a Qur’ānic heir in

43 Cited in MI Yelwa, ‘Inter-Gender Balance of Rights in Islam’ in SS Haneef, NM Zin and MW Mahmud (eds), Issues on Harmonization of Human Rights in Islam (Kuala Lumpur, International Islamic University Malaysia Press, 2016) 66–83. 44  Adnan (n 9).

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Juristic Use of ʿĀqilah as Balancing Mechanism

her own right, where a daughter or sister co-exists with a male sibling she is transformed into an agnate, technically referred to as ʿaṣabah bi ghairiha’.45

VII.  ʿĀqilah Based on Migrant/Helper Dichotomy Another reason to support the argument that the institution of ʿāqilah is not watertight and is amenable to reconfiguration is the fact that with the establishment of an Islamic state in Madinah, following the migration of the Prophet Muḥammad, Islam witnessed another social arrangement different from the clannish system in Makkah. A new solidarity grouping using the framework of ­immigrants (Muḥājirūn) versus helpers (ʾAnṣār) dichotomy was formed.46 Prophet Muḥammad ruled that people of Makkah and people of Madinah should respectively be responsible for payment of compensation for the unintentional acts committed by their members.47 The new framework has further broadened the institution of ʿāqilah, which used to be on small clans, as we saw in the case of Banū Hudhayl. The immigrants were no doubt a combination of many clans of Quraysh extraction, yet their clannish affiliation was jettisoned and they were held accountable collectively for payment of compensation. Similarly, the helpers were also a combination of many clans of Madinah. Such an idea effectively widened the membership of ʿāqilah to easily defray the cost of diyah without much hassle.

VIII.  ʿĀqilah Based on the Dīwān System To further corroborate our claim of the variability of the ʿāqilah institution the transformation after the demise of Prophet Muḥammad is now discussed. It is a historical fact that Islam witnessed territorial expansion from the time of the ­second caliph, ʿUmar b Khaṭṭāb (d 634–44 AD), through its rapid conquest of many territories outside the Arab world. The Muslim territory then became an admixture of cultures and traditions that influenced its political structure. The cosmopolitan nature of Muslim society during the period necessitated a cosmopolitan approach to address pressing problems, particularly given the huge resources controlled by the caliphate in the nature of royalties, poll taxes, spoils of war etc.48 45  For elaborate discussion on the types of ʿaṣabah, see AA Al-Subki, Fatawa al-Subki, vol II (Beirut, Dār al- Maʿārifah, nd) at 249. 46  Billah, ‘Islamic Insurance’ (n 6) at 389; SS Shah, ‘Homicide in Islam: Major Legal Themes’ (1999) 14(2) Arab Law Quarterly 159–68 at 167. 47  AY Zaylaʿi, Naṣbu al-Rāyat li Aḥādīth Al-Hidāyah, vol IV (M ʿAwāmah, ed) (Beirut, Muʿassasat al-Rayyān, 1997) at 398. 48  P Hitti, History of the Arabs (New York, Palgrave Macmillan, 2002) at 172.

ʿĀqilah Based on the Dīwān System

 53

In his bid to ensure wide redistribution of resources among the citizens of the Muslim territory, ʿUmar conducted a population census, adjudged as the first of its kind in the annals of history, leading to the establishment of registers (diwāwīn).49 With the establishment of these registers, solidarity and mutual collaboration on religious grounds were emphasised. It created a new relationship between members on each register as collaborators, such that when a member of dīwān ‘A’ erroneously or mistakenly murdered or injured another person in dīwān ‘B’, all members of dīwān ‘A’ were jointly responsible for diyah, even though they had different ethnic or clannish origins. Apart from the military register, many others existed containing names of pensioners, social welfare receivers, etc. According to Phillip K Hitti, ʿUmar catalogued the structure of the social welfare policy as follows: A’ishah headed the list with a pension of 12,000 dirhams a year. After the Ahlul Bayt (the prophet’s heirs) came the Emigrants and Supporters, each with a subsidy according to his precedence in the profession of the new faith. About 5000 to 6000 dirhams per annum was the average allotment to each person in this category. At the bottom came the mass of Arabian tribes arranged in the register according to military service and knowledge of the Koran. The minimum for an ordinary warrior was 500-600 dirhams; even women, children and clients were included in the register and received annuities ranging from 200–600 dirhams.50

It is noteworthy that even before ʿUmar came into power there was a system of state welfare. However, his predecessor, Abūbakar, did not deem it necessary to share the state resources in a lopsided manner as ʿUmar’s formula suggests. According to Muḥammad Kamali, Abūbakar considered one’s participation in battles or one’s loyalty to Islam as a spiritual act of sacrifice requiring no worldly reward. Therefore, there was no point in creating any hierarchical structure in the state welfare system since God will reward the person in the next world for his services to Islam.51 Abūbakar therefore based his formula for financial assistance from the state coffers on equality, irrespective of one’s status, and women, children and slaves were all beneficiaries on equal terms.52 Much as the purport of the formula adopted by Abūbakar was to rid the ­Muslim community of differential treatment in the distribution of resources based on status, what Muḥammad Kamali seeks to suggest is hardly tenable, and that could indicate that symmetrical sharing did not take account of individual needs. It is doubtful if a child could receive the same assistance as an adult since that may not bring about the justice sought to be established. For, in most cases, the needs of an adult outweigh those of a child. It is submitted that what Abūbakar wanted to avoid was prioritising early converts to Islam by giving them more from the treasury at the expense of others who had only recently joined the religion. Therefore, 49 ibid. 50 ibid. 51 

M Kamali, Freedom, Equality and Justice in Islam (Cambridge, Islamic Texts Society, 2002) at 61.

52 ibid.

Juristic Use of ʿĀqilah as Balancing Mechanism

54 

he adopted equal sharing formula to give everyone a sense of belonging. Kamali might mean that group-wise there was no discrimination, in which case, men had their shares commensurate to their needs and so did women and children. Another reason might be the fear of being accused of favouritism if he were to make ʿAisha (RA), who doubled as his daughter and the wife of the Prophet, the highest beneficiary of the state pension scheme. At any rate, under the new policy introduced by ʿUmar, there was a hierarchy of entitlements based on elaborate criteria like one’s relationship to the Prophet Muḥammad, time of professing Islam, attendance of battles and needs, among others. He explained the rationale for the uneven sharing formula, which was a partial departure from what obtained before him, thus: ‘we cannot treat equally those who fought with the Messenger of God and those who fought against him’.53 Women and children were included among the ahl al-Dīwān (registered ­members), even though they were not among the combatants. They also benefited from the welfare scheme, even though the quantum they were collecting was meagre, ie between 200–600 dirhams in comparison with men, whose minimum earning was in the neighbourhood of 500–600 dirhams. In essence, women were receiving some aid as subsistence allowance (maʿūnah) from the state coffers.54 It is submitted that the fact that a majority of women and children under ʿUmar‘s formula were in the categories of the lowest income earners, was the reason why ʿUmar made a policy pronouncement exempting them from contributing to the pooling scheme of the ʿāqilah. He is reported as saying: ‘children and women are not contributories to the common pool of solidarity group’.55 This declaration was not intended to demean the status of women as it was known in the pre-Islamic period.56 It would be unfair to mandate women and children to contribute to the common pool of the solidarity group given their limited participation in the economic domain and the stipends they earned. Their contribution to the common pool would have rendered them economically disadvantaged. It would also be tantamount to giving them with one hand and taking it back with the other. Besides, the chance of woman causing death or injury to somebody was rare when compared to men under the social climate operating at the time. It can be concluded that the exemption accorded women by ʿUmar was based on a ‘means test’, and this underscores the point being made that financial ability is the necessary consideration for participating in the solidarity group and not ­biological make-up. If the latter were the case, ʿUmar would not have exempted children, constituting boys and girls. Nevertheless, the purpose of this concession was not taken into account as it was literally interpreted, thus forming

53 ibid. 54 

K Ibn al-Hammān, Fatḥ al- Qadīr, vol 10 (Beirut, Dār al-Fikr, nd) at 401.

56 

M Al-Sarakhsi, Al-Mabsūṭ, vol XXVII (KM Al-Mays, ed) (Beirut, Dār al-Fikr, 2000) at 234.

55 ibid.

Contemporary Relevance of ʿĀqilah

 55

the ­bedrock of a general exemption formulated by classical jurists. Ultimately, all women, including those financially capable, have been relegated to the class of children and the insane as incapable of contributing to the common pool. A woman’s participation in the pool only comes as the final alternative in a case where the perpetrator lacks any relation to pay for him and the public treasury, which is supposed to pay in the worst case scenario, is itself short of money. The public will then be required to contribute in offsetting the bill as per Q9:71, which declares, ‘The Believers, men and women, are protectors one of another’.57 The reserved stance always adopted by some classical jurists allows many principles to remain perpetually applicable in utter disregard to social changes being experienced. Against all odds, when asked about the propriety of women being contributing members of ʿāqilah in contemporary world, a prominent Saudi scholar, ʿAbdullahi b ʿAbdurrahman Al-Jibrīn (1933–2009 AD) answered that ordinarily, men were responsible for payment of compensation since women had no economic resources as they are supported by their husbands and guardians and were often not exposed to accidents. However, these days one sees women driving in many countries and often getting involved in accidents. It is also evident that many women now own properties and businesses. If this is the case, then it becomes incumbent upon them to pay diyah for accidents they caused.58

IX.  Contemporary Relevance of ʿĀqilah The author has demonstrated how the classical jurists differ on the legality of imposing duty of payment of diyah on ʿāqilah, and how the majority have used the institution as a protective measure for women in their bid to cushion the effect of gender disparity taking into cognisance many variables. We have also demonstrated how the institution underwent internal realignment from the time of the Prophet and during the reign of ʿUmar b Khaṭṭāb. In what follows, the chapter discusses the relevance of the concept in contemporary world and how to modify it, taking into account the transformation that has characterised today’s society. It is worthy of note that when the Pakistan Law Commission prepared its annual report on the Qisas and Diyat Ordinance, 1984, it noted that susceptibility of the concept of ʿāqilah to multiple constructions was one of its Achilles heels, and this had been a very controversial subject since the classical age. It thus concluded that ‘the concept of ʿāqilah be jettisoned as introducing it is likely to create serious

57  M Abdel Haleem, ‘Compensation for Homicide in Islamic Sharīʿa’ in M Abdel Haleem et al (eds), Criminal Justice in Islam: Judicial Procedure in the Sharīʿa (London, I.B.Tauris, 2003) at 102. 58 AA Ibn Jibrīn, ‘Man Hum al-ʿĀqilah?’ available at www.ahlalhdeeth.com/vb/showthread. php?t=105665.

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Juristic Use of ʿĀqilah as Balancing Mechanism

complications in modern society’.59 This observation is no doubt a true reflection of the classical fiqh jurists’ treatment of the concept, more especially its construction along tribal affiliation, as accepted by the majority. The Ḥanafi School adopts a more pragmatic construction drawing inspiration from ʿUmar.60 The yardstick the Ḥanafi School uses is whether any form of mutual assistance (tanāsur) exists in a given professional grouping.61 Both constructions are, however, at one on the underlying philosophy of the institution, which is to do with collaboration, assistance and solidarity. From the outset, it is necessary to stress that it is difficult to found the system of ʿāqilah on tribal affinity, as existed in pre-Islamic and the formative period of Islam, in any modern society.62 Even in tribal societies where there are elements of cooperation and solidarity, extreme individualism has crept in such that those cherished values are gradually withering away.63 This, coupled with huge migrations at both local and international levels facilitated by globalisation, has dealt heavy blows to the old social structures like the tribal ʿāqilah. Therefore, to create a legal rule on the aegis of this concept, in its original form, will hardly yield any positive result. In essence, the wisdom underlying its utilisation will be completely lost. Interestingly, the number of male agnatic relatives required to contribute to the common pool for settling compensation as per the classical jurists seems imaginary. This is so when ascertained by paying regard to the amount payable by each agnate in three years, a period agreed by all the Sunni schools. For instance, the Ḥanafi School pegged the maximum contribution of each contributor at nine silver coins (darāhim) payable in three years (3x3 = 9). By necessary implication, the number of agnatic relatives of the perpetrator required will be in the neighbourhood of 1,111 men to pay a full diyah of 10,000 silver coins. The Mālikis do not specify the maximum contribution but require at least 700 men related through the same ascendant.64 Shāfiʿi and Ḥanbali rather employ a social stratification formula. That means the rich, the middle class and the poor are to contribute half dinar, quarter dinar and zero dinar respectively.65 It is therefore correct to hold that it is impossible for a person to provide such number of male blood relatives in today’s societies. ʿUmar’s reconstruction of ʿāqilah has reaffirmed one fundamental legal principle in Islamic legal tradition that changes in social circumstances necessitate

59  Pakistan Law Commission, 10th Report of the Committee on Offences against Human Body (Enforcement of Qisas and Diyat) Ordinance 1984 www.commonlii.org/pk/other/PKLJC/reports/ 10.html. 60  Kramer et al, Encyclopaedia of Islam, THREE (n 27). 61  Peters (n 8) at 49. 62  Shah, ‘Homicide in Islam’ (n 46) at 167. 63 ibid. 64 Māliki (n 5) vol IV at 47. 65  Peters (n 8) at 50.

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 57

changes in ijtihād-based laws and policies.66 Since the yardstick here is mutual assistance (tanāsur), there are many social arrangements in existence today where elements of mutual assistance are apparent. Such social arrangements include the modern system of taxation, insurance system etc, and we cannot ignore them. ­Little wonder that when the Islamic Fiqh Academy gave its opinion on the relevance of ʿāqilah in modern days, it also acknowledged the difficulty of constituting it as per its classical construction. It took into account the fact that the classical premise of the institution was nothing more than solidarity, collaboration and assistance. During its sixteenth session, the Islamic Fiqh Academy, in its resolution, suggested three innovative ways of reconstituting ʿāqilah today, as follows: 1. formation of Islamic insurance (takāful) or cooperative to bankroll the monetary compensation bill caused by any of the contributors/insured; 2. professional associations and trade unions which have provisions for mutual assistance and cooperation under their enabling laws; and 3. special funds in private and public sector departments designed to assist their respective members.67 Other approaches suggested at the small and medium level include a vehicle-­ licensing agency special fund created to put an extra charge on issuance and renewal of drivers’ licences for use in indemnifying victims of automobile accidents. Finally, a government-controlled social security fund could be created to assist indigent offenders to pay the diyah.68 What is clear from the resolution is that ʿāqilah today can be consensual or non-consensual. It is also construed more in relation to the economic viability of individuals. One common denominator to all the three new paradigms suggested by the Islamic Fiqh Academy is participation by individuals in any of the above arrangements, irrespective of their gender. In essence, the resolution suggests that ʿāqilah can undergo internal realignment to allow for the realisation of its welfare purpose. A more realistic approach appropriate to our circumstances that takes into account many variables, like the need to assist the perpetrator on the one hand, and the victim’s heirs on the other, is necessary. The approach must be one that would not put such unnecessary strains on the solidarity group as to make it unworkable. The consensual ʿāqilah in the form of motor vehicle insurance may seem more appealing, given the frequency of road accidents across the globe. However, its downside is that it is limited to cases of motor vehicle accidents. Given the

66  JA Ghamidi, ‘What is Diyah?’ (trans S Saleem) (2002) 12(9) Islamic Punishments: A Fresh Insight Renaissance Monthly Islamic Journal, special edn at 7 www.monthly-renaissance.com/issue/content. aspx?id=446. 67  International Islamic Fiqh Academy, Qirār Raqm (3/16) 145 Bi Sha’an Al ʿāqila Wa Taṭbīqātiha Al-Maʿāṣir Fi Ḥaml Al-Diyah (14 April 2005) available at www.iifa-aifi.org/2176.html. 68  Shah (n 46) at 168.

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Juristic Use of ʿĀqilah as Balancing Mechanism

i­ nadequacy of law enforcement in developing countries like Nigeria,69 it is doubtful if in such a scenario the government could assure victims’ families of compensation via this paradigm. Under the consensual paradigm it is only when a person with a third party insurance policy is involved that the victim’s family may have some respite. There is also apathy towards modern conventional insurance, which some Muslims consider un-Islamic given that it is predicated on uncertainty, interest and gambling.70 Besides the Islamised version, ie ‘takāful’, insurance has not fully developed to serve as an alternative in many developing Muslim countries.71 For instance, it was not until 2000 that Pakistan included a takāful model in its Insurance Ordinance.72 Similarly, no similar legislation exists in Nigeria and the Insurance Act remains without any amendment. However, some insurance companies have initiated takāful products within the conventional insurance framework.73 The Niger Insurance Plc calls it an alternative to conventional insurance ‘based on the concept of social solidarity, cooperation and mutual indemnification of losses of members’.74 Similarly, Jaiz Takaful Insurance, Nigeria has rolled out many forms of social solidarity like ‘general takaful’ and ‘family takaful’ all in a bid to assist the community to uphold the principle of bearing one another’s burden.75

A.  Citizenship Solidarity: A New Paradigm Having identified the consensual ʿāqilah arrangements and their downside, in this section it is argued that non-consensual ʿāqilah is the most appropriate approach to cater for the welfarist nature of the ʿāqilah institution. In suggesting citizenship solidarity as the appropriate paradigm we consider provision of common services such as security, health care, social amenities and utilities to the public as the major forms of solidarity in modern states. These services are mostly fuelled, serviced and lubricated through taxation, which is usually charged proportionate

69  JO Okpara et al, ‘Corporate Governance in Emerging Markets: Barriers to Effective Reform’ (2011) 76(1) SAM Advanced Management Journal available at www.freepatentsonline.com/article/ SAM-Advanced-Management-Journal/258439088.html. 70 A Khorshid, Islamic Insurance: A Modern Approach to Islamic Banking (London, Routledge­ Curzon, 2004) at xi. 71  The Pakistan Express Tribune, ‘Takaful Penetration Low in Pakistan’ (30 June 2010) https://­ tribune.com.pk/story/24653/takaful-penetration-low-in-pakistan/ 72  See Pakistan Insurance Ordinance, 2000, s 2(lxiv), available at http://unpan1.un.org/intradoc/ groups/public/documents/APCITY/UNPAN015861.pdf. 73  Nigerian Vanguard Newspaper, ‘Niger Insurance Urges Public to Buy Takaful Insurance Products’ (15 February 2011) www.vanguardngr.com/2011/02/niger-insurance-urges-publicto-buy-takaful-insurance-products/. 74 ibid. 75  See Jaiz Takaful Insurance, ‘Takaful Guide’ http://jaiztakafulinsurance.com/index.php?route= about/jaiz/guide.

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 59

to one’s means/earnings. Naturally, we do not have the same capacity and, as such, we have people who earn a lot, some average, others little and yet some earn nothing. But the fact that Mr A contributed a lot to the common pool will not give him any special right to enjoy the public property more than Mr B who did not contribute anything. We all enjoy social services irrespective of the quantum of our contribution. This means that consciously or unconsciously, mutual assistance and solidarity of a different kind exists, in terms of citizenship or residence of a state or a given geographical entity. People pay taxes and rates from their incomes to the state and this process, in general, succeeds in generating huge amount of money for the general well-being of all.76 Of course, one’s inability to contribute owing to low income or lack thereof will not deprive him of the benefit of such services. Thus, social relationship at this level is now defined in the language of identities, such as employed (self/public), unemployed and unemployables, irrespective of gender. It is submitted that with the establishment of modern states and transformation of the social classification along economic lines, such a centralised system would be a better approach to this issue. Taxation is one of the necessary ‘evils’ that modern societies have to live with. For instance, most of the public goods such as external and internal security cannot be provided without taxation. Interestingly, people consume these goods simultaneously, irrespective of their contributions. It is therefore correct to state that some members of society are subsidising others. This assistance, albeit involuntary, creates a strong solidarity bond among citizens of a given geographical entity. The tax paid out of one’s income, though sometimes very painful, can still be seen as a certain proportion of one’s earnings given away as donation to the state to manage for the general benefit of all. On this premise, a certain percentage from the general tax may be remitted to a fund which may be named the ‘Victim Compensation Fund’ to cater for the families of deceased persons. From the fund, diyah claims can be entertained. The significance of this suggestion lies in the fact that, it provides guarantee and assurance to the victims that they will not continue to live in misery, at least, at the initial time following the demise of their family member. It may also allow for oneoff or lump sum payment, as against the classical instalment payment spread in three years. Contributing to this fund will be less stressful to contributors, as their numerical strength will make their contribution minimal. More importantly, the multi-purpose goals the imposition on ʿāqilah seeks to achieve would have been realised, since the perpetrator of the act has had his burden lightened; the sacrosanctity of human life is preserved; and the heirs of victims adequately indemnified and provided with social security, thus rescued from the fangs of destitution and pauperisation.

76 M Pirie, Understanding Economics: Economics for Non-Economists (England, Adam Smith Research Trust, 2010) at 89.

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Juristic Use of ʿĀqilah as Balancing Mechanism

One major pitfall of the above proposition is that it passes on to the public the obligation of paying compensation for something not caused by them. The question then arises, whether in modern days, individual responsibility can be spread across and to be defrayed by taxpayers under the conventional criminal law regime. It is submitted that there is nothing unusual in such an endeavour as it is not the first time taxpayers are made to pay for something that is not of their own making. For instance, it is now an international obligation on all states parties to the United Nations Convention on Civil and Political Rights (ICCPR) to provide free legal aid to indigent accused persons at the expense of taxpayers.77 There is hardly any country without a legal aid scheme. For instance, in Nigeria, the Criminal Defence Service is meant to provide a free legal service to indigent accused persons whose earnings are below the minimum wage. This includes advice, assistance and representation where necessary.78 Assistance to these people at the expense of the state is to be given in all criminal cases including rape, homicide and armed robbery.79 While conceding that to ensure equal access to justice the suspects can be assisted, it is submitted that victims of crime are more deserving of such magnanimous gestures. There may be nothing wrong in the active involvement of the state in offering free legal assistance to the accused to ensure he is not arbitrarily charged and wrongly convicted; victims too need similar assistance. It sounds irrational to assist a person accused who broke the law while leaving his victim(s) without any social protection. It is therefore submitted that at a mega-level citizenship, in the modern state, should be seen as a concept that gives status, right and identity. Also, it should be seen as a bond of collective identities that gives a sense of obligation to help one another without recourse to ethnic, social, sexual or religious identities. While the state may defray compensation claims for the benefit of victims, there is nothing wrong in chastising a person who caused unlawful death. This assures the state of its role as protector of life and property of the citizenry. A fund to help victims of homicide may be established by borrowing a leaf from the United Kingdom’s book. In the United Kingdom, the ‘Criminal Injuries Compensation Authority’ is established under Criminal Injuries Compensation Act, 1995, to deal with injuries emanating from criminal acts.80 Such a dedicated account will go a long way in assuaging the suffering of victims. Another likely problem with the proposition is the fact that it treats every citizen equally irrespective of gender or religious background as against the classical

77 

78 

ICCPR, art 14(3)(d). Section 8(2) Legal Aid Council Act c L9 Laws of the Federation of Nigeria, 2004 as amended in

2011. 79  ibid, 2nd schedule to the Act. 80  Criminal Injuries Compensation Act 1995 available at www.legislation.gov.uk/ukpga/1995/53/ introduction/enacted.

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fiqh position, which recognises Muslims and non-Muslims as unequal. It is an axiomatic fact that in the classical Islamic literature there is marked difference in the amount due as compensation for slain Muslim and that of a non-Muslim. A Muslim is equally not to be killed for killing a non-Muslim. The question that readily comes to mind is whether in this age such a proposition is sustainable given the constitutional notion of equality irrespective of religious background? Given that in modern states, taxation operates across the board, would it sound appropriate or fair to give its benefits only to one group at the expense of the other? At the risk of digressing, it is declared that this may not be contentious in view of the ample evidence of the practice of the early generation of Muslims. Despite the subordinate status non-Muslims had then, they used to benefit from the welfare scheme of the Islamic state. It is on record that ʿUmar b Khaṭṭāb, the second caliph, used to give concession to non-Muslims by exempting them from paying the poll tax (jizyah) and approving welfare allowances for them.81 Indeed, on one occasion, ʿUmar, in approving welfare allowances, lamented the unfairness suffered by an elderly Jew, when he exclaimed that, ‘it was unfair that we ate from the fruit of his youth and then let him down in his old age’.82 It is noteworthy that the provisions of the Qurʾān and Sunnah on this issue are amenable to various constructions. Muḥammad Hashim Kamali argues that an ‘atomistic approach’ to reading the textual authorities necessarily justifies the maintenance of this religious dichotomy between human beings. Holistically however, the provisions tilt more towards equality taking into account the dignity of human person.83 Classical discourse on this point tends to look at non-Muslims either as minority group permanently resident (dhimmis) in a Muslim state or as aliens having temporary residence (musta’min) therein, hence under special protection. For instance, in the Māliki School, a non-Muslim is worth half the diyah of the M ­ uslim. The Shāfiʿis on the other hand allot a non-Muslim, one third of Muslim diyah; a position disputed by the Ḥanafi School, which stipulates equal diyah ­irrespective of religious orientation.84 The classical discourse did not seem to envisage circumstances where the nature of the modern state makes Muslims and non-Muslims co-equals in a given territory. However, in today’s political arrangement, the issue of benefiting one member of society over the other is hardly tenable, since religious status is no bar to

81 Kamali, 82 ibid.

Freedom, Equality and Justice in Islam (n 51) at 139.

83  eg Muhammad Kamali cites Q3:110; Q9:29 and Q5:51, generally cited as the basis of Muslims’ superiority over non-Muslim. He also made reference to other verses which when put together give a basis for equal recognition of all subjects of Muslim state. The verses in the main encourage tolerance, friendliness and good relations with non-Muslims such as Q2:62; Q5:5 and Q60:8. See Kamali (n 51) at 79. 84  ibid, at 86.

Juristic Use of ʿĀqilah as Balancing Mechanism

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enjoyment of equal citizenship rights.85 Contemporary scholars like Mahmūd Shaltut, Abū Zahrah and Yusuf Qaraḍāwi appear to have filled this void by opting for an holistic approach.86 They view the above discriminatory juristic stipulations on religious ground as civilisational, and according to Shaltūt, are relevant only to ‘the prevailing circumstances of their (ie jurists) time’.87 This holistic and egalitarian approach provides a firm ground on which the citizenship solidarity paradigm, as suggested here, thrives. From that perspective, heirs of both Muslim and non-Muslim member can benefit from the fund. Furthermore, the aftermath of the armistice the Prophet Muḥammad (SAW) secured at Al- Ḥudaybiyah clearly shows that alliance of mutual benefit between Muslims and non-Muslims, as citizenship solidarity paradigm suggested here, has a firm ground. It should be recalled that during the Al- Ḥudaybiyah pact, it was agreed that any tribe was at liberty to enter into alliance with either the Prophet or the Quraysh. The clan of Banū Khuzā‛ah allied with the Muslims while the clan of Banū Bakr joined the Quraysh. Consequently, if the Quraysh were to fight Banū Khuzā‛ah, a non-Muslims group, the Prophet was duty bound to fight the Quraysh. Barely two years after the pact of Al-Ḥudaybiyah the Quraysh collaborated and launched an attack against Banū Khuzā‛ah. It was in defence of this non-Muslim clan and to avenge the assault on them that led to the conquest of Makkah.88 It is submitted that if the Prophet were to agree to align with idolaters for mutual benefit there is then sufficient ground to support constituting ʿāqilah on citizenship solidarity without recourse to the religious orientation of the ­contributing members. Notwithstanding the above, the fact that the citizenship solidarity paradigm is an idea with some religious colouration may not appeal to some non-­Muslims, who ab initio are opposed to implementation of Islamic penal regime. This ­factor may allow the creation of a window allowing anybody to opt out of the scheme.

X. Conclusion Classical Islamic jurists were meticulous in trying to balance the gender relation in homicide and bodily injuries through employment of the age-long institution of ʿāqilah. From the above analysis, although women were practically absent in the discourse the male jurists have exhibited the highest peak of fairness in that regard.

85  86 

ibid, at 78–97. ibid, at 86–87.

87 ibid.

88 A Al-Dawoody, The Islamic Law of War: Justifications and Regulations (New York, Palgrave ­Macmillan, 2011) at 28.

Conclusion

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They took into account the socio-economic situation across genders and ensured that women are not disadvantaged the more. Hence, they pay only for the least injuries they caused when compared with their male counterpart. Modern forms of social intercourse, however, necessitate a rethink into the institution to make it all inclusive. Thus, women could be contributing members of the solidarity group given their empowered state in today’s society.

5 Arguments and Counter-arguments on Asymmetric Diyah across Genders I. Introduction This chapter seeks to analyse the various arguments proffered by jurists on both sides of the divide in order to determine the juridical basis of each. Perhaps that would strengthen our position that humans have the ability to determine the parameters of justice by taking a clue from the divine and overarching sources of Sharīʿah. Muslim jurists have used various arguments to provide legitimacy to the gender disparity principle in homicide cases. The chief argument is what may be termed cross-contextual analogy. Often, principles specifically applicable in some areas of Islamic law have been uplifted and given a status of general application. Generally, they have advanced at least four arguments to be the rationale for what is claimed to be juridical consensus (ijmāʿ), viz: rules of inheritance, law of evidence, the doctrine of qawāmāh, and male intellectual superiority.

II.  Testimony and Share of Inheritance as Markers of Inferiority Ḥanafi jurist, Al-Kāsāni speculates that the ‘consensus’ on diyah might not be unrelated to the fact that a woman takes half the share of a man in inheritance, and that two women are required in place of one man in testimonies.1 Going by Al-Kāsāni’s analogy, the half diyah stipulation may have been premised on some principles specifically provided in other areas where the Qurʾān categorically stipulates gender hierarchy, such as the issue of inheritance. It is worthy of note that Q4:11 and 4:176 dealing with the shares of children and siblings, excluding

1  A Al-Kāsāni, Badāʾiʿ al-Ṣanāʾiʿ fi Tartīb al-Sharāʾiʿ, 2nd edn, vol X (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) at 310.

Testimony and Share of Inheritance

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the uterine, stipulate that the male shall have twice the share of the female. ‘Allah enjoins you concerning your children: The male shall have the equal of the portion of two females’. And for full and consanguine siblings it says, but if there be two (sisters), they shall have two-thirds of what he leaves; and if there are brethren, men and women, then the male shall have the like of the portion of two females; Allah makes clear to you, lest you err; and Allah knows all things.

In addition to this, the Qur’an provides two other instances where the same ­principle applies even though not explicitly mentioned. For instance, in the inheritance of spouses, a husband gets one quarter or one half if the deceased wife had no child; a wife equally gets one eighth or one quarter if her deceased husband had no child. Likewise, in a few instances a father gets twice the share of a mother. That is where parents are inheriting along with spouse: where Mr A dies leaving behind his parents and wife. Here the wife gets one quarter of the estate while the remainder is shared using the two-to-one ratio, such that the mother is allotted one third of the residue and the father two thirds. Apart from these instances, nowhere is the principle of the two-to-one ratio applied. There is even disagreement on whether the two-to-one ratio applies in the inheritance of parents. C ­ ompanions of the Prophet like ʿAli b Abī Ṭālib and ʿAbdullāh b ʿAbbās opposed the application of the principle, although the majority of the companions were more inclined to apply it in that regard.2 Critiquing Al-Kāsāni’s analogy, Yusuf Al-Qaraḍāwi argues that the principle of the double ration to the male compared to the female as per Q4:11, ie ‘to the male, a portion equal to that of two females’, is not the only principle under the Islamic system of inheritance. There are other known principles where the woman receives an equal share to the man. In some instances she receives more than he does; and in yet another instance, she alone inherits to the exclusion of the man.3 To lend credence to this argument the Holy Qur’an has given instances of where a woman inherits a share equal to that of a man, including: 1. The father and mother inheriting along with deceased’s child, be it a male or female child. In this circumstance each of them gets one sixth of the estate: ‘and as for his parents, each of them shall have the sixth of what he has left if he has a child’.4 2. Uterine siblings are also to share equally two thirds of the estate. And if a man or a woman leaves property to be inherited by neither parents nor offspring, and he (or she) has a brother or a sister, then each of them shall have the sixth, but if they are more than that, they shall be sharers in the third.5

2 

A Hussain, The Islamic Law of Succession (Riyadh, Darussalam, 2005) at 172–73. Y, ‘Diyat al-Mar’at fi al-Sharīʿat al-Islamiyyah’ (unpublished, 2005) www.cmrim.com/ index.php?option=com_content&view=article&id=2573:2012-11-21-10-18-06&catid=121:2012-1115-12-51-36&Itemid=233. 4 Q4:11. 5 Q4:12. 3 Qaraḍāwi,

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The point being made is that it is erroneous to claim that the two-to-one ratio is the general rule of the Islamic system of inheritance, and to even use it as the basis of analogy when other principles abound allowing equality. Therefore, according to Qaraḍāwī,6 if analogy is to be used the most appropriate basis should have been the verse that provides for retribution (qiṣāṣ), ie ‘life for life’. This is because diyah and qiṣāṣ are applicable under the same class of offence.7 Granted without conceding that the two-to-one ratio applies, this inheritancerelated differential treatment does not portray or accord women an inferior status, but is only in recognition of the financial responsibility imposed on a man for the maintenance of his family.8 This raises a question whether a principle made in one context could be overarching enough to be applicable to all other situations. In other words, can the double ration of inheritance received by the man be sufficient justification for halving the woman’s diyah as this argument seeks to suggest? It is doubtful if this argument can be rationalised especially when one takes into consideration that the two scenarios will not produce the same result. In the case of inheritance, the woman is the receiver of half the share of the man, while in the case of compensation, she is not the recipient of her diyah. The analogy seems inappropriate also as homicide and inheritance do not fall under the same category.9 Similarly, Al-Kāsāni’s second point that the half diyah principle may also be rationalised based on the ‘one man to two women’ formula in evidence as contained in Q2:282 can hardly be justified. This is because the argument does not take into account other verses of the Quran dealing with evidence that are genderneutral, such as Q4:6; 4:15; 5:106; 24:4 and 65:2. Quran 2:282, as we shall argue later, is conditional and limited to certain transactions. It reads: O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah Has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord Allah, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, Let his guardian dictate faithfully, and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her.

The first impression one will have of the expression ‘and get two witnesses, out of your own men, and if there are not two men, then a man and two women, … so that if one of them errs, the other can remind her’, is that it depicts a kind of

6 Qaraḍāwi,

‘Diyat al-Mar’at fi al-Sharīʿat al-Islamiyyah’ (n 3). ibid, at 12. Ali, Gender and Human Rights in Islam and International Law: Equal Before Allah Unequal Before Man (The Hague, Kluwer Law International, 2000) at 45. 9 Qaraḍāwi (n 3). 7 

8  SS

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 67

intellectual superiority between men and women.10 This may be the reason why mainstream Muslim jurists made a sweeping generalisation of not according equal value to testimonies across genders in all cases, be it criminal or civil. However, looking at this expression in the context of the time of its revelation will give a different picture of the whole scenario. From the outset it is pertinent to note that, many exegetes of the Qur’an including ʿAbdullāhi b ʿAbbās believe Q2:282 was revealed specifically with reference to a salam11 contract.12 The implication of this is that the scope of its application is quite narrow. Arguably, other commercial transactions may not require the strict application of the conditions stipulated in this verse. Interestingly however, the verse weighs heavily on the scale in that it is given generalised applicability in almost all court proceedings even though, contextually, it is limited to commercial transactions.13 It is argued that the application of the ‘one man to two women’ principle outside commercial transactions is only implied, but no explicit ­provision is evident in the Qurʾān.14 It is pertinent to note that there are varying discourses on whether the second woman in the circumstances is an independent witness, a supporter or someone who corroborates the testimony of the first female witness. Imām Shāfiʿi related one incident involving his mother which suggests the second woman is only a supporter of the first one. It is a case where his mother along with another woman were testifying before a judge in Makkah and the judge wanted to separate them. The mother of Shāfiʿi challenged that move by quoting Q2:282 in support of her stance.15 It is also observed that the legal principle established by the verse directly addresses contracting parties but not the court or judge, as it is in the parties’ own interest to ensure the protection of their capital against loss to defaulters. Sheikh al-Islam Ibn Taymiyyah (1263–1328 AD) aptly argues that, Qurʾān has not mentioned the testimony of one or two women with reference to ­adjudication that a judge must necessarily adhere to. It made mention of these forms of evidence in relation to person who wants to protect his business interests.16

10 MA Syed, The Position of Women in Islam: A Progressive View (Albany, State University of New York Press, 2004) at 100. 11  Salam sale is a type of contract whereby advanced payment is made while delivery of the subject matter of the sale is delayed until a later time which may be up to 3 years. 12  M Al-Qurṭubi, Tafsīr al-Qurṭubi, vol III (Cairo, Dar Kutub al-Misriyyah 1964) at 377; M Kamali, Freedom, Equality and Justice in Islam (Cambridge, Islamic Text Society, 2002) at 67. 13 Ali, Gender and Human Rights in Islam and International Law (n 8) at 71. 14  M Fadel, ‘Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Thought’ (1997) 29(2) International Journal of Middle East Studies 185–204 at 194. 15 AA ʿAsqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri, vol V (Beirut, Dār al-Maʿarifah, 1379 AH) at 266. 16  MA Ibn al-Qayyim, Al-Ṭuruq al Ḥukumiyyah (Cairo, Maṭbaʿat al-Madnī, nd) at 104.

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Javed Ahmad Ghamidi clearly distinguishes between matters that can be prearranged and those that occur abruptly, and in either case judicial evidence may be required.17 For instance, in a contractual agreement, a party may require evidence should there be any dispute. As such, he may choose who he wants to witness such a transaction. Conversely, it is outside one’s control to witness an armed robbery, fornication or theft, as these are acts that can occur at any moment, and anybody, male or female, can witness them. Clearly, Q2:282 is not referring to any such fleeting occurrences. However, reference in the verse is with respect to commercial cases where parties, of their own accord, come together to do business. When intertextuality is employed the verse can be construed as women-friendly, for some scholars perceive it as a source of women’s empowerment. Shaheen Sardar Ali argues that if we view the verse from the socio-historical perspective, it will be clear that it was a step in the right direction in women’s quest for empowerment.18 It is on record that the prevailing condition of women in Arabia before the advent of Islam was their near total exclusion from the public sphere. This verse ­recognises woman’s capability to partake in transactions outside the ­domestic sphere. Still in this connection, some scholars like Muḥammad Abduh, Muḥammad Asad and Jamal Badawi attribute the reference made in the verse to ‘temporal division of labour between sexes’, thus suggesting that women are less familiar with business procedures because of their complexity and jargon, and are thus more prone to making mistakes in commercial transactions.19 According to this view, this verse has nothing to do with women’s biological frame or their nature as women.20 The Egyptian jurist, Muḥammad Abduh posits that both men and women are susceptible to remembering and forgetting, as either of them is likely to forget a certain transaction to which he or she is not accustomed.21 Yusuf Al-Qaraḍāwi corroborates this stance arguing that the reason why men are favoured in financial dealings is that such transactions are, by nature, done in the public domain. Finding men is easy when needed and they have no restriction by having to seek permission from anybody. Besides, men were more conversant with the day-to-day commercial dealings at that time and in many parts of the world still are to this day.22 The Muslim Brotherhood puts this perspective ­succinctly thus: Indeed, in this regard, it should be pointed out that there are certain matters which only accept the testimony of a woman and not that of a man. Furthermore, women are

17 JA Ghamidi, ‘The Law of Evidence’ (trans S Saleem) (unpublished, September 2002) www.monthly-renaissance.com/issue/content.aspx?id=447. 18  Ali (n 8) at 71. 19  AS Roald, Women and Islam: The Western Experience (London, Routledge, 2001) at 137–38. 20  Fadel, ‘Two Women, One Man’ (n 14) at 187. 21 ibid; K Bauer, Gender Hierarchy in the Qur’an: Medieval Interpretations, Modern Responses, (New York, Cambridge University Press, 2015) at 70. 22 Qaraḍāwi (n 3).

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­ nanimously accepted as narrators of hadiths, and this means that their testimony in u narrating hadiths is treated like that of a man. In addition to this a woman is responsible towards her duties to her faith and she has full independence in her right to possess, and in her right to make contracts. If she was supposed to have a lesser mind, the contracts and other dealings would have required the assistance of a male.23

The above viewpoints are clear evidence that the principle of ‘one man to two women’ is not intended to demean or lower the intellectual capability of women but was only a product of social necessity. If the deficiency of intelligence argument is plausible enough to warrant such a sweeping principle of corroboration of women’s testimony, the same should have been extended to other areas of intellectual endeavour. It is interesting to know that history acknowledges participation of women in knowledge production through narrations of ḥadīth, exegesis of Qurʾān, enunciation of legal principles, etc.24 In all these cases, women were treated on a par with men, as no corroboration by another woman was required to validate any such activity done by another woman. If mental ability were the premise for such differential treatment, there would not have been equality between men and women under Islamic law in this respect. In other words, if the claim of deficiency is anything to hold on to, corroboration would have been required for the legal exposition of woman and even her reporting of ḥadīth. In his effort to ascertain more reasons for the asymmetrical treatment of testimonies, Muḥammad Fadel makes an interesting analysis of the juristic treatment of evidence across genders in what he calls the ‘political’ and ‘normative’ realms. There are both male and female narrators of aḥādīth of the Prophet (SAW), and are all accepted and treated equally. Narration of ḥadīth falls under the normative realm while testimony falls under the political realm. According to Fadel, the rationale behind the ‘political’ and ‘normative’ characterisation is that ḥadīth narration, for instance, generally applies to every member of the public of which the narrator himself is a member. In such cases, there is no need for corroboration on the assumption that s/he is not likely to tell a lie since the narration also affects the narrator. Besides, the public have from now to eternity to ascertain the truth of the narration. On the other hand, testimony in court determines individual rights and is capable of establishing or extinguishing another person’s right. There is therefore the tendency that a witness may lie or err in the process, and once the judge acts upon it, it becomes irreparable.25 From his analysis of the treatment of women’s testimony by jurists, Fadel appears to be very critical of this ‘political’ and ‘normative’ characterisation. He questions why the production of knowledge in the nature of narration of ḥadīth, exegeses of the Qurʾān and enunciation of legal norms (fatwā) have transcended

23 

Quoted in Roald, Women and Islam (n 19) at 139. generally MA Nadwi, Al-Muḥaddithat: The Women Scholars in Islam (London, Interface ­Publications, 2007). 25  Fadel (n 14) at 188. 24  See

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gender boundaries but when it comes to the testimony (shahādah) of women ­corroboration is required? He argues that there is no justification for the argument that women are deficient in intelligence or that they are less credible than men but the whole issue lies in public subjectivity.26 Fadel analyses the view of Shihāb al-Dīn al-Qarāfī (1285 AD), who attempted to provide a rationale for this gendered treatment of evidence of women in the political realm in the context of thirteenth-century Egyptian society. What emerges from the analysis is that the problem is twofold. The first was institutional, in the sense that courts found difficulty enforcing any judgments passed upon the testimony of women, because of the refusal by litigants to respect court orders. The second was social, in that there was general public perception of women as inferior.27 Litigants hated witnesses, as they perceived them as responsible for any unfavourable verdict made by court; the fact that the witness happened to be a woman exacerbated the disrespectful attitude of litigant to decisions of the court. Thus, in the words of Fadel, ‘two women were required by the law in order to lessen the blow to the losing party’s already wounded male pride, thereby increasing the chance that he would voluntarily comply with the court’s decision’.28 Fadel is obviously relaying the situation as it was in thirteenth-century Egypt but not as it was during the formative period of Islam. There is hardly any ­narration that gives a vivid account of how women used to testify in criminal matters during the first century of Islam. There is, however, an instance where Prophet Muḥammad PBUH accepted the testimony of a black female slave who claimed to have breastfed a couple when they were babies.29 ʿUqbah b al-Ḥārith narrated that when he married Umm Yaḥya bint Abī Ihāb, a certain female slave claimed that she breastfed both of them.30 The ḥadīth is reported in Ṣaḥiḥ Bukhāri as follows: I married a woman and then a black lady came to us and said, ‘I have suckled you both (you and your wife).’ So I came to the Prophet and said, ‘I married so-and-so and then a black lady came to us and said to me, “I have suckled both of you.” But I think she is a liar.’ The Prophet turned his face away from me and I moved to face his face, and said, ‘She is a liar.’ The Prophet said, ‘How (can you keep her as your wife) when that lady has said that she has suckled both of you? So abandon (i.e. divorce) her (your wife).’31

26  27 

ibid, at 191. ibid, at 192.

28 ibid.

29  MA Ibn al-Qayyim, Al-Ṭuruq al Ḥukumiyyah (MJ Ghazī, ed) (Cairo, Maṭbaʿat al-Madnī, nd) at 70. 30 ibid. 31 M Bukhāri, Saḥiḥ al-Bukhāri (The translation of Saḥiḥ Bukhāri) (trans M Khan) vol VII, bk 62, hadith 41 https://archive.org/details/TheTranslationOfTheMeaningsOfSahihAl-Bukhari-ArabicEnglish9Volumes.

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This prophetic narration shows that the testimony of one woman was accepted by the Prophet without corroboration in matters relating to breastfeeding, obviously an act that happens not in public but in the private sphere. The acceptance of her evidence is the basis upon which scholars of the Ḥanbali School accepts one-woman testimony in such cases. Interestingly, the woman was a slave and not from a noble background. Ḥanafi scholars prefer two men or one man and two women while Malikis and Shāfiʿis accept two men and four women respectively. Their argument is that the narration does not support accepting the testimony of a woman since the Prophet did not order ʿUqbah to divorce his wife on the strength of that woman’s testimony. He refused to give the order probably because the woman was unknown as the narration did not mention her name. As such, her trustworthiness could not be guaranteed.32 Another important observation that shakes the basis of Al-Kāsāni’s justification of half diyah stipulation is its disregard for Q24:6–9 dealing with mutual imprecation (liʿan), which gives equal weight to the testimonies of spouses,33 thus: And for those who launch a charge against their spouses, and have (in support) no ­evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by Allāh that they are solemnly telling the truth; And the fifth (oath) (should be) that they solemnly invoke the curse of Allāh on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allāh, that (her husband) is telling a lie; And the fifth (oath) should be that she solemnly invokes the wrath of Allāh on herself if (her accuser) is telling the truth. (Q24:6-9)

Ordinarily, if the ‘one man to two women’ formula applies, women would have been made to swear 10 times to avoid punishment, but it is not the case here. Interestingly, this is an allegation of crime.

III.  Female Intellectual Inferiority Argument Absence of discrimination across genders in the ‘normative discourse’ like reporting the narrations (aḥādīth) of the Prophet raises question as to the authenticity of the widely quoted narration in which the notion of women being inherently inferior in matters of religion and intelligence is mentioned.34 Abu Saʿīd Al-Khudri is reported to have said: Once Allah’s Apostle went out to the muṣalla (to offer the prayer) or 'īd-al-aḍḥa or īd al-fitr prayer. Then he passed by the women and said, ‘O women! Give alms, as I have

32  MH Al- Shaiqīdi, ‘Al-Tawfīq baina Qaul Khalīl wa baina Ḥadīth ʿUqbah b Al-Ḥārith’ http:// ar.islamway.com/fatwa/13576. 33 Bauer, Gender Hierarchy in the Qur’an (n 21) at 35. 34  See Bukhāri, Saḥiḥ al-Bukhāri (n 31) vol I, ḥadīth 301.

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seen that the majority of the dwellers of Hell-fire were you (women).’ They asked, ‘Why is it so, O Allah’s Apostle?’ He replied, ‘You curse frequently and are ungrateful to your husbands. I have not seen anyone more deficient in intelligence and religion than you. A cautious sensible man could be led astray by some of you.’ The women asked, ‘O Allah’s Apostle! What is deficient in our intelligence and religion?’ He said, ‘Is not the evidence of two women equal to the witness of one man?’ They replied in the affirmative. He said, ‘This is the deficiency in her intelligence. Isn’t it true that a woman can neither pray nor fast during her menses?’ The women replied in the affirmative. He said, ‘This is the deficiency in her religion’.35

The authenticity of this narration generated mixed reactions. The first group regards the narration as authentic on its mere face value but does not consider it derogatory to women. They hold that the ḥadīth only reflects the women’s ­natural disposition. This is the position of mainstream Islamic scholarship given the repeated reference to the narration in justifying legal formulations that ­differentiate between men and women. Ibn Al-ʿArabī of the Māliki School36 and Ibn Hammām of the Ḥanafi School,37 among the early jurists, appear to be in this category, so are Abdul ʾAzīz b Bāz (d 1999) and Salmān al-ʿAudah (d 1955). The bottom line of their argument is that women have no hand in creating the obstacles that may be considered a deficiency. Ibn Kathīr among the classical exegetes relied on the above hadith to conclude that two women are needed in given testimony owing to their mental deficiency.38 The second group holds the ḥadīth as having no authenticity. They argued that ‘anti-women’ pronouncement does not befit the Prophet. As such, they declare it forged and fabricated for the enslavement of women, notwithstanding the fact that Imām al-Bukhāri reported it.39 They argue that it is contradictory to both the Holy Qurʾān and other sayings of the Prophet.40 They also cite many historical facts to show the pre-eminence of women in many intellectual disciplines like exegesis of the Qurʾān, medicine and surgery during the lifetime of the Prophet.41 According to this view, the fact that the Prophet Muḥammad enjoined Muslims to seek half of the knowledge of Islam from his youngest wife, Aisha also points to the falsity of the ḥadīth. The fact that the Prophet had entrusted Aisha with this onerous responsibility is not only because of her relationship with the Prophet but also because of her ability to articulate and enunciate legal rulings; and this feature is innate and God-given.42

35 ibid. 36 

MA Ibn al-ʿArabi, Aḥkām al-Qurʾān, vol I (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) at 335–37. K Ibn al-Hammān, Fatḥ al Qadīr, vol VII (Beirut, Dār al-Fikr, nd) at 371–73. 38  Roald (n 19) at 137. 39 Syed, The Position of Women in Islam (n 10) at 26. 40  ibid; Fadel (n 14) at 194. 41  Syed (n 10) at 26. 42  Fadel (n 14) at 191. 37 

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Much as this group has the temerity to doubt this ḥadīth, there is strong consensus on the authenticity of Bukhāri’s collection. Perhaps the position of the first group was informed by the fact that Bukhāri’s collection is taken in high esteem in the Muslim world so they rather accept the authenticity of the above ḥadīth and urge hermeneutical interpretation. The Norwegian Muslim author, Anne Sofie Roald sought the views of some notable scholars living in the Arab and the Western world, and was amazed that both of them do not see interpreting the ḥadīth literally as worthwhile. She cited the likes of ʿAbd al-Ḥalim Abū Shaqqa (d 1996) and Sheikh Rāshid al-Ghannūshī among those in this class.43 Abū Shaqqa particularly gave three different approaches to understanding the ḥadīth. He said the narration may be viewed as ‘educational statement’, ie the Prophet SAW admonishing the women to work hard in order to secure a place in Heaven, just as he made a similar statement to a group of rich men that paradise is populated by the poor. The fact that he said so does not mean that rich men will not make Heaven but that they should strive to earn it lawfully.44 Al-Ghannūshī also towed the same line arguing that it is not just an educational but a legal ḥadīth, as it is only meant ‘to tell that men should not treat women in a harsh way, as women are sensitive. The hadith says that one should treat women well and the meaning is not that women are deficient’. In other words, the ḥadīth ought not to have been used as the basis for deriving legal rulings, and by extension it should not have been used as the basis of analogy to ascertain the quantum of diyah.45 Abu Shaqqa’s second approach is to look at the ḥadīth in context. The statement was made jokingly to them by the Prophet (SAW) to demonstrate how amazed he was with women’s ability to control men endowed with firmness.46 The narration was reporting an incident that happened in Madina during a festive period in which many women of Anṣār were present. As such, it was not possible for the Prophet to use very harsh words on the women. It is common knowledge that women of Madina were known for their overbearing ability to control their men. At one point, ʿUmar b Khattāb had cause to complain to the Prophet that the women of Anṣār were influencing their Muhājirūn wives.47 In support of Abu Shaqqa, Gibril F Haddad also views the narration as not berating women but is ‘an acknowledgment of the inordinate power women wield over men while ostensibly less active in the public and spiritual spheres’.48 This is discernible from the Prophet’s choice of words, where, according to Haddad, he used ‘hyperbole’ (mubālagha), ‘I have not seen anyone more deficient in intelligence and religion than you. A cautious sensible man could be led astray by some of you’. The Prophet’s reference to ‘intelligence’ and ‘religion’, according to this

43 

Roald (n 9) at 133.

45 

ibid, at 136.

44 ibid. 46 ibid. 47 ibid. 48 

G Haddad, ‘Women’s Intelligence Ḥadīth Again’ available at www.livingislam.org/k/wiha_e.html.

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view is a mere synecdochic expression (majāz mursal) of using a term that is more inclusive when only something specific is intended. It is further argued that the circumstances that led to the pronouncement by the Prophet and the tone of words, when taken contextually, will reveal that he never meant to demean women.49 Abu Shaqqa looks at the narration from what he called a ‘biological argument’ and argued that there are certain circumstances that make a woman temporarily weak intellectually and in terms of religion, during pregnancy and child-rearing. The fact that it is a temporary situation should not be taken to mean that she is perpetually weak.50 It is therefore misleading to suppose that the intendment of the ḥadīth in question is to lower the personality of women to subservience. The sacrosanctity of Bukhari’s collection is upheld by Muslim jurists given the meticulous approach employed by the collector. As such, challenging the authenticity of that collection will hardly be tolerated by mainstream Muslim scholarship. For the avoidance of doubt Bukhari’s collection is rated second only to the Holy Qur’an.51

IV.  Economic Argument Another powerful argument in support of asymmetrical diyah is what may be called the economic argument. Cherif Bassiuoni, Abdul-Raḥman Al-Sheha and Mustapha Al-Zarqah are among the scholars who argue that this position taken by all the companions of the Prophet, their followers and scholars of ḥadīth and fiqh was never meant to demean the worth of women, but it was in consideration of their social responsibility. Bassiuoni is of the view that the unequal diyah must not be misconstrued as lowering the status of women but it was premised on economic consideration since men are traditionally ‘the economic foundation of Islamic societies’.52 JN Anderson made one interesting observation which depicts the Islamic system of monetary compensation as a pre-Islamic practice.53 In his words, the whole dispute, however, is an obvious heritage of the origin of the law of talion. [It] is an attempt to maintain the ratio of tribal strength, at a time when the loss of actual or potential fighting man was far more seriously regarded than that of a mere woman.54

49 ibid. 50 

Roald (n 9) at 134. HM Kamali, A Textbook of Ḥadīth Studies: Authenticity, Compilation, Classification and Criticism of Ḥadīth (Leicestershire, The Islamic Foundation, 2009) at 33. 52  MC Bassiouni, ‘Quesas Crimes’ in MC Bassiouni, (eds), The Islamic Criminal Justice System (London, Oceania Publication Inc, 1982) 203–09 at 208. 53  JND Anderson, ‘Homicide in Islamic Law’ (1951) 13(4) Bulletin of the School of Oriental and African Studies 811–28 at 814. 54  ibid, at 815. 51 

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Anderson’s argument receives support from the Muslim scholars like Al-Zarqah who claimed that halving the diyah was prescribed because loss of a male f­amily member is more painful than the loss of a female family member. He noted that in intentional murders, the penalty is equal irrespective of the gender of the deceased. The murderer must observe expiation (kaffāra) for killing a woman for the same number of days as he would if the victim were a man.55 Al-Zarqah’s argument is supported by a popular legal maxim ‘benefits in accordance with the scale of responsibility’, based on the doctrine of qawāmāh.56 This argument suggests that the full diyah for men is like compensation given to them for the heavy matrimonial responsibility placed upon them. Therefore, the loss of the father, who is the breadwinner, affects a family more than the loss of the mother, since in the case of the latter, in the words of Abdul-Raḥman Al-Sheha, ‘the financial situation would not be affected as much as when the father is killed’.57 To my mind, the fact that men are financially responsible may not be sufficient justification for this differential treatment, which Al-Sheha seeks to rationalise. Male financial responsibility does not make a woman less human or inferior to a man. It is part of the matrimonial division of responsibilities, which the female partner also shares. Careful study of the verse on qawāmāh will reveal that the verse merely describes what men customarily do in their relationship with women. In other words, the verse is not prescriptive, thus not meant to create a normative ruling in that regard. By over-essentialising financial support, Al-Sheha seems to downplay the significance of child bearing and upbringing, and the traumatising effect on a child of the absence of its mother. The Qurʾān acknowledges the significance of child bearing and its criticality to the extent that it is used as the basis for filial respect. Indeed, the role of woman in this respect is so enormous that the mother enjoys treble respect from her child in comparison to the father. The stipulation on diyah as per the above shows that it is only justified according to the legal maxim ‘benefits in accordance with the scale of responsibility’. However, this maxim is a mere juristic abstraction that may only have a binding effect if it merely reiterates or reaffirms a ruling contained in the primary sources of sharīʿah.58 This leads to some questions: What will be the consequence where a woman happens to be the main or sole breadwinner? Will her diyah change in the event of her death? Classical fiqh literature appears silent on these questions. It is then pertinent to address this issue in the context of the modern social setting.

55 

Sheikh Mustapha Al-Zarqah www.ahlalhdeeth.com/vb/showthread.php?t=14647. Q4:34 places the duty of maintaining one’s family on the male partner who is made financially responsible for the family. 57  A Al-Sheha, Women in Islam and Refutation of Some Common Misconceptions (trans A Eberle) www.islamland.com/eng/books/women-in-islam-refutation-of-some-common-­misconceptions1432798897; A Hassan, The Rights and Duties of Women in Islam (Riyadh, Darussalam Publishers and Distributors, 1996) at 26. 58  MH Kamali, Sharīʿa Law: An Introduction, (Oxford, Oneworld Publications, 2008) at 142. 56 

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V. Conclusion This chapter analysed the rational arguments put across by jurists and scholars in their bid to either justify the diyah disparity or debunk it. The chapter has identified three main arguments beginning with the claim that the disparity can be justified on the ground that there is clear mark of superiority and inferiority in matters of testimonies and inheritance, all tilting more in favour of men. This is followed by claim of female intellectual inferiority and economic arguments. It is argued that rational arguments will only count in the absence of textual authorities. The chapter further showed that most of the principles capitalised upon to justify the disparity are not the only principles of law laid down in the area from which they were borrowed.

6 Addressing the Conflicting Narratives Using Elimination (Al-tarjīḥ) and Abrogation (Al-naskh) Methods I. Introduction Having examined the juristic arguments in rationalising the diyah disparity on the ground of biological determinism and the counter-argument against the same, it is pertinent in this chapter to examine the textual authorities that gave rise to legal argumentation in the interpretative process. This will help in ascertaining whether the juristic stipulations of compensation for loss of life and for bodily injuries along gender lines are explicit in the revelatory texts or are mere products of human engagement with them. The book has demonstrated in the two preceding chapters the factors that mainly informed jurists’ views in their formulations on the subject. The discussion here is triggered by the observation that the classical discourse favoured men over women bearing in mind their social responsibilities. The chapter shall argue that the divine sources are generally gender neutral in tone, although there are some provisions that are seemingly contradictory; however, careful analysis reveal that they are not. The fact that the classical jurists were more inclined to using al-jamʿ wa’l-tawfīq in reconciling conflicting authorities made them look so. Here, elimination (al-tarjīḥ) and abrogation (al-naskh) methods were employed, taking into account the chronological order of their revelation and other historical factors.

II. Qurʾān on Homicide and Bodily Injuries As the first primary source of Islamic criminal system, the Holy Qurʾān addresses murder as a despicable and intolerable atrocity by equating deliberate murder of one person to the total annihilation of the entire human race. It reads: If anyone slew a person—unless it be for murder or for spreading mischief in the land—it would be as if he slew the whole people: and if anyone saved a life, it would be as if he saved the life of the whole people.1 1 Q5:32.

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Islam does not condone unjustified killing of another regardless of his social, ­religious or gender status. In the event such an unwelcome act occurs the perpetrator is not only to be tormented in the hereafter, but is also to be punished in this world. This is as per the prescribed law of equality in retribution as provided in the Qur’an thus: If a man kills a believer intentionally, his recompense is Hell, to abide therein (For ever): And the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him.2

The verses most relevant to our discussion include the following: O ye who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.3

Unless otherwise put in the proper context, Q2:178 may be interpreted to suggest that social or gender statuses are worth reckoning in murder cases because of the specific mention of ‘the slave for the slave’, and ‘the woman for the woman’. As we shall subsequently see, the non-contextualisation of this provision carries with it serious implications in gender relations judging by the huge legal principles extracted from the verse by those endowed with the wisdom to interpret divine texts. There is yet another verse, which has a harmonising feature, as it does not distinguish between individuals based on status. Qurʾān 5:45 reads: ‘We ordained therein for them: “Life for life … and wounds equal for equal”’.4 These two Qurʾānic provisions, ie Q2:178 and Q5:45 form the basis upon which the Islamic law of retribution was established. The scholastic interpretive engagement with the divine text and subsequent establishment of legal principles along gender lines appear to stem from the seeming contradiction between the two verses. It is worth noting that while the phraseology of ‘life for life’ accorded equal status between men and women in the sanctity of life in Q5:45; Q2:178 only made reference to cases involving sets of humans with a shared identity, ie ‘the free for the free’, ‘the slave for the slave’ and ‘the woman for the woman’. In other words, the verse did not categorically say ‘the woman for the man’ or ‘the man for the woman’. In view of this therefore, scholars exert their efforts in trying to determine whether gender hierarchisation is the intendment of God.

2 Q4:93.

3 Q2:178. 4 Q5:45.

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III.  Addressing the Seeming Discrepancy in the Qur’anic Verses In addressing the seeming contradiction in these verses three approaches have been identified:

A.  Sequencing Approach Al-Ṭabari identifies a group of scholars who use elimination (al-tarjīḥ) and ­abrogation (al-naskh) methods in resolving the seeming contradiction between these two verses, ie Q2:178 and 5:45. They did that by juxtaposing the verses taking into account the order of their revelation and concluded that Q5:45, which conveys the prescription of equality ‘life for life’ was late in time, being the last to be revealed. That being the case, the verse of equality takes precedence over Q2:178, which created a hierarchy. A renowned companion, Abdullāh b ʿAbbās was noted among the proponents of this viewpoint. According to them, this view is in consonance with the practice of the Prophet, who ordered the killing of a Jewish man for killing a woman.5 By necessary implication, Q5:45 not only terminated the application of Q2:178, by bringing to the end recourse to social and gender status, but also abrogated it.6 Ibn Kathīr holds the same view. He traced the reason for revealing Q2:178 with reference to the hostilities between two certain Arab tribes. One of these tribes killed members of the other and the latter promised to avenge the death of their members by killing a freeperson for their slain slave, and also by killing a man for their woman. Therefore, on the advent of Islam they wanted to fulfil their promise but were prevented from doing what they wanted. They were only to kill a slave for a slave, and a woman for a woman.7 According to Ibn Kathīr, Q5:45 had abrogated Q2:178 since the latter did not allow killing a man for a woman or a free person for a slave.8 By this approach, it may be argued that during its early stage, Islam tolerated recourse to ‘social status’, but phased it out subsequently. This may well explain the consensus among the Sunni schools on the issue of retribution where they all allow the execution of man for deliberately causing the death of woman and vice versa, as earlier highlighted. Another point worth noting is that, many Qurʾānic exegetes consider the prescription on diyah (monetary compensation) as one of the distinctive features of 5  M Al-Ṭabari, Jāmiʿ al-Bayān fi Taʾwīl al-Qurʾan, vol X (AM Shākir, ed) (Beirut, Muʾassasat al-Risālah, 2000) at 360. 6 ibid. 7  IU Ibn Kathīr, Tafsir Ibn Kathīr, vol I (Cairo, Dār-al-Tayyibah, 1999) at 489. 8 ibid.

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Islamic criminal justice policy, particularly when compared with other revealed religions, such as Judaism and Christianity.9 By implication, if a ‘sequencing approach’ is adopted in the circumstances, then the concession of collecting monetary compensation in intentional cases, as a special feature of the Islamic criminal justice system, will cease, leaving the heirs of a slain person with only two options, ie ‘retribution’(qiṣāṣ) and ‘forgiveness (ʿafw)’. This is because Q5:45, being the last in time to be revealed, does not provide the option of diyah. Besides, another ­relevant verse (Q4:92), only refers to unintentional murder: Never should a believer kill a believer; but (if it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely.

However, notwithstanding this observation, Abdullāh b ʿAbbās interpreted the verse ‘but if any one remits the retaliation by way of charity’ in Q5:45, to mean agreement to collect diyah.10 Therefore, Q5:45 has taken care of diyah in intentional homicide. In addition, the Sunnah of the Prophet is explicit on accepting diyah in intentional murders as reported in the ḥadīth of ʿAmr b Ḥazm thus: ‘Whoever kills a believer deliberately for no reason or a crime that he committed, he should be killed (in retaliation), unless the family of the murdered person agrees to take diyah (blood money)’.11 Above, we have identified that Q5:45 was the last to be revealed; as such, it shall be taken as the position of the law on the issue in contention, as attested by a renowned companion of Prophet Muhammad (PBUH), Abdullahi b ʿAbbās. This approach enjoys the support of the Ḥanafis, for they do not differentiate between a freeman and slave in murder cases. The former is liable to a capital penalty for causing the death of the latter, owing to the inviolability of life.12

B.  Historical Approach Muhammad El-Awa is one of the advocates of the historical approach. The ­position of this school of thought is that Q5:45 is particularly relaying historical antecedents of the past. It is only making a simple reference to what was ordained for the people of the revealed Book (Ahl al-Kitāb), ie the Jews and the Christians. According to this school of thought, this is discernible from the opening of the verse: ‘We ordained therein for them’.

S Quṭb, Fī Ẓilāl al-Qurʾān, vol I (Beirut, Dar al-Shurouq, 1991) at 164. Bukhāri, Sahih Bukhāri, vol 9, bk 83, No 20 (trans M Khan) https://archive.org/details/ TheTranslationOfTheMeaningsOfSahihAl-Bukhari-Arabic-English9Volumes. 11 AA ʿAsqalāni, Bulūgh Al-Marām, vol I (Riyadh, Dar al-Falaq, 2003) at 359. 12  M Al-Sarakhsi, Al-Mabsūṭ, vol XXVI (KM Al-Mays, ed) (Beirut, Dār al-Fikr, 2000) at 236. 9 

10 M

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The implication of this viewpoint is that the lex talionis principle of ‘life for life’ does not apply to Muslims.13 El-Awa strengthens his view by pointing to the fact that, if the verse is analysed contextually, it will be clear that it is placed in between verses that referred to the Jews. He further argues that the provision of this verse could not apply to the Muslim community since Q5:48 declares that each Prophet comes with his own specific teaching: ‘To each among you have we prescribed a law and an open way’.14 El-Awa’s approach seems to be another form of elimination method suggesting that the historical verses must give way to the prescribed law for the Muslims. If El-Awa’s approach is adopted it means the equality principle as embodied in the expression ‘life for life’ is not the applicable law for Muslims.15 If El-Awa’s view on this issue holds then it will appear that the various examples of historical events cited in the Qurʾān are merely historical, or at most only revealed for moral persuasion and thus lacking any legal force. It would mean that hopes for gender equality in this regard would remain unrealised. This is because the approach has the tendency of institutionalising recourse to social and gender status in murder cases. If Q5:45 is taken as revealed only as a rendition of historical prescriptions to other communities, and thus incapable of being used as a basis for legal formulation for Muslims, as El-Awa seeks to suggest, then social and gender status, as exemplified in Q2:178, shall be the basis for legal policy formulation within the sharīʿah framework. This ultimately means that social and gender equality, in this respect, would be unachievable. The actions and pronouncements of Prophet Muḥammad (PBUH) and his rightly guided caliphs were at odds with such reasoning. In one of the many aḥādīth, the Prophet says: O people! Your Creator is one, and you are all descendants of the same ancestor. There is no superiority of an Arab over a non-Arab or of the black over the red, except on the basis of righteous conduct.16

To further debunk El-Awa’s contention, Al-Sarakhsi submits that although the verse in question, as rightly observed by El-Awa, was making reference to the law ordained for the people of the revealed books, such prescription equally applies to the Muslims, unless there is express provision limiting its application to them.17

13 MS El-Awa, Punishment in Islamic Law: A Comparative Study, (Plainfield, American Trust ­Publication, 2000) 72–73. 14 Q5:48. 15 El-Awa, Punishment in Islamic Law (n 13) at 74. 16  MH Kamali, Freedom, Equality and Justice in Islam (Cambridge, The Islamic Text Society, 2002) at 52. 17  MA Ibn al-ʿArabi, Aḥkām al-Qurʾān, vol II (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) at 128; see also Al-Sarakhsi, Al-Mabsūṭ (n 12) vol XXVI at 106.

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C.  Contextual Approach Scholars like Ibn al-ʿArabi (d 543 AH/1148 AD), a prominent Māliki scholar, adopts what I term a ‘contextual approach’. Ibn al-ʿArabi mentions some notable successors (tābiʿūn) like al-Shaʿabi and Qatādah as saying that Q2:178 was actually revealed to correct the transgression of some Arab tribes, who, on the pretext of nobility, avenged the death of a member of their tribe by killing a person of high social status from another tribe. Such that, if a slave from a non-noble tribe killed a slave from a noble tribe, the latter used to kill the master of the offending slave.18 On the other hand, Q5:45, according to ʿAbdullāhi b ʿAbbās, was revealed in response to the practice of the Banū Qurayẓah, a Jewish tribe of Madīnah. ­Members of this tribe used to exceed or transgress the limit whenever they were avenging the death of one of their members against the Banū Naḍīr. Therefore, the verse prescribed equality among them.19 Seyd Quṭb supports this view, arguing that Q5:45 may be taken as referring to a case of intentional murder targeted against a ‘particular person’ or ‘group of persons’, while Q2:178 is with reference to communal feuds since no particular person is intended. In that case, social status may be taken into account.20 By necessary implication, these narratives suggest that these two verses were case-specific and revealed in relation to some specific historical facts, of course with general application to Muslims. In addressing these verses, Imām Mālik may have yielded to this viewpoint, albeit, from a different perspective. According to him: The best of what I have heard on the interpretation of this āyat, the word of Allāh, the Blessed, the Exalted, ‘The free man for the free man and the slave for the slave—these are men and ‘the woman for the woman,’ (Q2:178) is that retaliation is between women as it is between men. The free woman is killed for the free woman as the free man is killed for the free man. The slave-girl is slain for the slave-girl as the slave is slain for the slave. Retaliation is between women as it is between men. That is because Allāh, the Blessed, the Exalted, said in His Book, ‘We have written for them in it that it is a life for a life and an eye for an eye, a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds there is retaliation.’ (Q5: 48) Allāh, the Blessed, the Exalted, mentioned that it is a life for a life. It is the life of a free woman for the life of a free man, and her injury for his injury.21

Under this approach, the two seemingly contradictory provisions have been juxtaposed together and utilised in the formulation of legal principles, undermining the context in which the verses were revealed. However, in relation to the issue under review, the approach did not take into account the gradual method employed in

18 

Ibn al-ʿArabi, Aḥkām al-Qurʾān (n 17) vol I at 89. ibid, vol II at 128. 20  S Quṭb, Fī Ẓilāl al-Qurʾān (n 9) vol I at 152. 21  AM Malik, Al-Muwatta, vol II (Beirut, Dār Gurāb al-Islam, 1996) at 445. 19 

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the Qurʾān. Apparently, the approach allows recourse to social status, as in the case of free man and slave. The former may not be killed for the latter, but at the same time, the approach allows retribution across genders. Having identified and discussed various approaches to the Qurʾānic provisions on the matter under review, the sequencing approach appear more appealing, and is in line with the gradual approach mostly used in the revelation of Qurʾanic provisions. Interestingly, in reconciling these two seemingly contradictory verses the Islamic jurists appear more inclined to using al-jamʿ wa’l-tawfīq (conciliation) being the first method of dealing with contradictory narratives. This method is resorted to where the two contradictory narratives are not mutually exclusive; as such, none of them is jettisoned. Perhaps they were guided by some aḥādīth that allow gender hierarchisation in diyah.

IV.  Prophetic Sayings in Murder and Bodily Injuries Across Genders It is now pertinent to survey the aḥādīth of the Prophet, being the next in the hierarchy of sources of the law in order to determine their reliability. This would assist in settling these divergences and perhaps settle the matter once and for all. There are many aḥādīth of the Prophet dealing with matters of homicides across genders, which explained how he dealt with such cases. Equally reported were his pronouncements on diyah in both homicidal cases and bodily injury, as we shall see in due course. There is however great difficulty in ascertaining why the classical fiqh jurists preferred narrations that create gender disparity in the face of more inclusive narrations. As for retribution between a man and woman no problem exists with respect to loss of life as all the Sunni schools treat genders at par in that respect. The Prophet demonstrated gender equality in a case involving a man who crushed the head of a young girl to snatch her ornaments, which ultimately resulted into her death. Imām Bukhāri reported this on the authority of Anas b Malik: A Jew crushed the head of a girl between two stones, and the girl was asked, ‘Who has done that to you, so-and-so or so and so?’ (Some names were mentioned to her) until the name of that Jew was mentioned, (whereupon she agreed). The Jew was brought to the Prophet and the Prophet kept on questioning him till he confessed, whereupon his head was crushed with stones.22

However, on the issue of diyah involving loss of life, the author was unable to come across any ḥadīth where the Prophet decided an ‘actual case’ and specifically prescribed the diyah of a woman. What is found in the literature is that the Prophet

22 

M Bukhāri, Sahih Bukhāri (n 10), vol IX, bk 83 ḥadīth 15.

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had reportedly fixed the diyah of a man killed from the tribe of Banū Adi at the rate of 12,000 dirhams (silver coins).23 This could have settled the matter because it is on record that pre-Islamic Arabian society was characterised by gender disparity in favour of men. Notwithstanding the absence of actual decided case on the diyah of woman, at least two seemingly contradictory narrations have been identified as emanating from the Prophet (PBUH). The first hadith is said to be reported by Muʿādh b Jabal (d 18 AH/639 AD) in which the Prophet declared that ‘the compensation of woman is half that of man’.24 The second one is as contained in the epistle of the Prophet which he handed over to ʿAmr b Ḥazm (d 53 AH/673 AD) when he was sent to Najran, a province under the Muslim authority to teach the new converts about Islam.25 The epistle, among other things, contained the expression ‘The compensation for life is hundred camels’.26 Most of the classical jurists including Ibn Qudāmah27 are of the view that the half diyah stipulation was also contained in the same epistle(s), and it is an exception to the general rule. This suggests that the source of gender inequality in diyah is the divine component, ie, the content of the Prophet’s epistle.28 Ibn Qudāmah further condemned the views of Ibn Ulayyah and Abubakar Al-Asamm that diyah is equal across genders as isolated and thus not acceptable.29 It is said that ʿAmr b Ḥazm Al-Anṣāri was sent to Najran in 10 AH, immediately after the people of the area converted to Islam, with the epistle addressed to some prominent figures such as Shuraḥbīl b ʿAbdi Kalāl, Ḥārith b ʿAbdi Kalāl, etc.30 The epistle contained many religious instructions ranging from issues of zakāt (poor due) to diyah etc.31 It is pertinent to state that the claim by jurists like Ibn Qudāmah that the expression ‘the compensation of woman is half that of man’ in the Prophet’s epistle is highly contentious. Ibn Ḥajar Al-ʿAsqalāni (1372–1448 AD) was among the scholars of ḥadīth who fired the first salvo. He asserted that the said expression was not found in that long epistle sent to ʿAmr b Ḥazm.32 A contemporary ḥadīth scholar,

23  SA Abū Daūd, Sunan Abū Daūd, vol IV (MM ʿAbd al-Ḥamīd, ed) (Beirut, Maktabat al-ʿAṣriyyah, nd) at 185, ḥadīth 4546. Albāni has declared this a weak ḥadīth. 24  MI Al-Ṣanʿānī, Subl al-Salām, vol II (Cairo, Dār al-Ḥadīth, nd) at 365. 25  AS Al-Liḥyāni, ‘Asānīd Kitāb ʿAmr b. Ḥazm (RA)’ (2001) 2 Majallah al-Aḥmadiyyah Muharram 1422, 48–101 at 53 www.ahlalhdeeth.com/vb/showthread.php?t=111760. 26  ʿAsqalāni, Bulūgh Al-Marām (n 11) at 437–38; see also Ibn al-ʿArabi (n 17) vol II at 128. 27  AA Ibn Qudāmah, Al-Mughni (MR Riḍā, ed), vol VIII (Beirut, Dār al-Kitāb al- ʿArabi, 1983) at 403. 28  Multaqa ahl al-Ḥadīth, ‘Hal Diyat al- Marʾat ʿalā Niṣf Min Diyat al-Rajul?’. www.ahlalhdeeth. com/vb/showthread.php?t=14647. 29  Ibn Qudāmah, Al-Mughni (n 27) at 403. 30  For the full content of the epistle, see Al-Lihyāni, ‘Asānīd Kitāb ʿAmr b. Ḥazm (RA)’ (n 25) at 54–59. 31 ibid. 32  MN Albāni, Irwāʾ al-Ghalīl fi Takhrīj Aḥādīth Manār al-Sabīl, vol VII (Beirut, Maktabat al-Islāmī, 1985) at 306, ḥadīth 2249.

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Muḥammad Naṣiruddīn Albāni (1914–99 AD) also claimed that he had searched for that expression in the epistle to ʿAmr b Ḥazm but could not find it.33 Hence, Albāni did not mince words in declaring the controversial expression ‘the compensation of woman is half that of man’ as ‘weak’ (ḍaʿīf).34 Interestingly ­however, he accepts and authenticates the all-inclusive portion, ‘the compensation for life is hundred camels’.35 It is noteworthy that the then Umayyad caliph, ʿUmar b ʿAbdul Azīz (d 720 AD), obtained the Prophet’s epistle through Abūbakar b Muḥammad, the grandson ofʿAmr b Ḥazm. This narration is considered as the ‘only well-authenticated tradition on the subject’.36 The relevant portion of it has been cited by many scholars including Imām Mālik in his famous book Al-Muwatta and Ibn Ḥajar in Bulūgh-al Marām and is reproduced here thus: Whoever kills a believer deliberately for no reason or a crime that he committed, he should be killed (in retaliation), unless the family of the murdered person agrees to take diyah (blood money). The diyah for life is a hundred camels (italics mine). Full blood money (ie total diyah of 100 camels) is paid for the total cutting off of each of the following: the nose, the eyes, the tongue, the lips, the penis, the testicles and the backbone. For cutting off of one leg; half a diyah is paid (ie 50 camels). For a head injury a third of the diyah is paid, for stab which penetrates the body, one third of the diyah. For a blow which breaks a bone or dislocates it; 15 camels. For each finger or toe, 10 camels are paid. For wound which exposes a bone five camels are paid. A man is killed in qiṣāṣ for killing a woman. For those who possess gold, they shall pay the equivalent of the 100 camels which is fixed as one thousand dinar.37

Notwithstanding the clean bill of health given to this narration by Yusuf al-Qaraḍāwi and others, the narration is classified as hurried (mursal) because Abubakar b Muhammad, the narrator of the ḥadīth, did not meet his grandfather, ʿAmr b Ḥazm. However, recent research into the validity of this epistle by ʿAbdullāhi b Saʿāf Al-Liḥyāni, though identifying many defects in its chains of transmission, reveals the existence of the epistle for it was well known among the people of Madina from the first and second century after Hijra. He painstakingly scrutinised different versions of this narration from many sources. Al-Liḥyāni maintains that the epistle is undoubtedly a mursal narration. After a thorough analysis, he found that the content of the epistle has been corroborated by Qur’anic verses and other aḥādīth of the Prophet. He claimed that the transmission of Al-Zuhri (d 742 AD) is the most acceptable, as Al-Zuhri claimed to have seen the epistle with the family of ʿAmr b Ḥazm and had actually read it.38

ibid at 308, ḥadīth 2252. ibid at 306, ḥadīth 2249. 35  ibid at 300; 303, ḥadīth 2243 and also 2248. 36 Y Qaraḍāwi, The Status of Women in Islam (trans M Gemeaah) (nd) www.scribd.com/ doc/13460421/The-Status-of-Women-in-IslamQaradawy. 37  ʿAsqalāni (n 11) at 437–38. 38 Al-Liḥyāni (n 25). 33  34 

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It is noteworthy that in all the versions of this narration identified by Al-Liḥyāni none of them contains this statement ‘the compensation of woman is half that of man’. The above tradition is the bedrock of compensation in monetary terms or rather money’s worth. As can be observed, it stipulates the diyah without reference to gender. One wonders why jurists interpreted the narration restrictively despite the all-inclusive tone of the Prophet’s epistle. The treatment given to this ḥadīth by the classical jurists appear to suggest that any statement made in the revelatory text is to be presumed as addressing only men, save where women are expressly mentioned. Some scholars posit that the answer to this query will be appreciated if one makes an imaginary journey in retrospective to the aristocratic leadership of the ʿAbbāsid dynasty.39 This view suggests that the perception of women in that society would leave an indelible mark on any person, and would almost naturally affect one’s perception of them.40 According to this view, during this period, the dividing line between a ‘woman’ and ‘property’ was thin, as they can be purchased from the market with little difficulty.41 In the words of Leila Ahmed, ‘the marketing of people, and particularly women, as commodities and as objects for sexual use was an everyday reality in ʿAbbāsid society’.42 Indeed, most aristocrats of that time were complicit in the perpetuation of this culture of debasing the worth of women, as is discernible from the array of women they housed as their concubines.43 Leila Ahmed cited the likes of Caliph Hārūn Rashīd who was known for having over 100 concubines, as well as a host of other notable opinion leaders.44 This was largely attributed to the assimilation of foreign cultures by the Muslims because of the territorial expansion of the Islamic state and the influence of tales from the Semitic religions (Isrāʿiliyyāt) before Islam.45 The fact that there was social abuse of women folk during the period under review was simply a reflection of the patriarchal system of that society and not the requirement of Islam. Karen Bauer also shares this concern, for according to her, Muslim jurists of that period share similar characteristics with the Jewish and Christian medieval scholars in their treatment of women. According to Bauer: That the gender hierarchy was considered natural in the medieval period is apparent in legal rulings, such as that for the blood-money payment in the case of killing: 100 camels

39  See generally L Ahmed, Women and Gender in Islam: Historical Roots of the Modern Debate (New Haven and London, Yale University Press, 1992). 40 ibid; K Bauer, Gender Hierarchy in the Qur’an: Medieval Interpretations, Modern Responses (New York, Cambridge University Press, 2015) at 19. 41 Ahmed, Women and Gender in Islam (n 39) at 85. 42  ibid, at 84. 43 ibid. 44  Ahmed (n 39) at 83. 45  ibid at 79–101; G Adnan, Women and the Glorious Qurʾān: An Analytical Study of Women-related Verses of Sura an-Nisa (PhD thesis, Universitat Gottingen, 2004) available at http://webdoc.sub.gwdg. de/univerlag/2004/adnan.pdf at 189.

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for men, 50 for women. … These ḥadīths are often reinterpreted today; but in the medieval period, they were taken at face value. In their view of women as unequal, subservient, and deficient, medieval Muslim interpreters are on common ground with medieval interpreters from other world religions, particularly Judaism and Christianity. Medieval Jewish interpretations of the Biblical verse Genesis 3:16, to the woman he said, ‘I will make your pains in childbirth severe; with labour you will give birth to children, and your desire shall be for your husband, and he shall rule over thee’, are similar to Medieval Islamic interpretations of Q. 4:34.46

It is noteworthy that the development of this important field of knowledge, ie fiqh, as an autonomous Islamic pedagogy, coincided with these extreme social prejudices against women. The period, usually characterised as the golden age of Islamic civilisation, witnessed, among other things, elaborate scriptural interpretation and formulation of legal principles by Muslim scholars with active state support.47 It is therefore not surprising for such social prejudice to impact on the interpretation of scholars of the period, as Leila Ahmed observes: Altogether the prevalence and ordinariness of the sale of women for sexual use must have eroded the humanity from the idea of woman for everyone in this society, at all class levels, women as well as men. The mores of the elites and the realities of social life, and their implications for the very idea and definition of the concept ‘woman,’ could not have failed to inform the ideology of the day, thus determining how early texts were heard and interpreted and how their broad principles were rendered into law48

Arguing in the same vein, Gunawan Adnan claims that even apart from social ­perception of women in this classical age, other factors that contributed to the biased interpretation included fear of political victimisation from the political authorities. The aristocrats wanted uniformity and consistency in policies and were intolerant to any opposing view against the position of the establishment madhhab.49 He thus concludes: Sociologically, they [Muslim jurists] cannot be separated from their society and time in which they lived and their opinions were much influenced by the culture and social values of their time. History tells us that society in the lifetimes of these scholars was very male-oriented or male-dominated. In other words, they lived in a patriarchal society. As a logical consequence, their fiqh judgements (verdicts/fatawa) naturally reflected the patriarchal system. This in its turn influenced the so called male bias of opinions.50

While we note the plausibility of Gunawan Adnan’s argument with reference to the sociological influence, his point on fear of victimisation is hardly tenable, at least on the issue under consideration here. This is because even during the

46 Bauer,

Gender Hierarchy in the Qur’an (n 40) at 13. AB Phillips, The Evolution of Islamic Fiqh (Riyadh, International Islamic Publishing House, 2005) at 85. 48  Ahmed (n 39) at 86. 49 Adnan, Women and the Glorious Qurʾān (n 45) at 221. 50  ibid, at 195. 47 

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period under review, there were the dissenting egalitarian views of the likes of Ibn ʿUlayyah (d 809 AD) and Abūbakar Al-ʾAṣamm (d 816 AD), who insisted on interpreting the expression ‘the compensation for life is hundred camels’ in all-inclusive terms. This appears to have weakened Adnan’s view on fear of political victimisation, as another possible reason for such interpretation. Besides, the fact that the seventh ʿAbbāsid caliph, Al-Māʾmūn (d 833 AD), was known for his sympathy to the Muʿtazilite School, which Al-ʾAṣamm belonged to, exposes the weakness of this viewpoint. It is on record that the Muʿtazilite doctrine had gained ground during the ʿAbbāsid dynasty particularly from 813–47 AD during the reigns of Al-Māʾmūn, Al-Muʿtaṣim and al-Wāthiq as the official state creed.51 Ordinarily, if fear of victimisation had been one of the reasons for male biased interpretation, at least within the interval of about 30 years when the Muʿtazilite doctrine held sway in this dynasty, views of scholars like Al-ʾAṣamm would have prevailed as no state threat would have occasioned any person propagating the all-inclusive interpretation of the expression ‘the compensation for life is hundred camels’.

V.  Creating a Chronology between the Narratives Obviously, these narratives of Muʿādh b Jabal and ʿAmr b Ḥazm might have been reconciled to be in tandem with Arabia’s gender relation being the default system. As shown above, the jurists may have treated the two narratives as not contradicting each other. By this, the narration of Muʿādh was interpreted as explaining that of ʿAmr b Ḥazm, hence construing the latter as exception to the general rule. According to Ṣanʿāni, the narration of Muʿādh was the basis for the unanimity of the classical jurists on halving the diyah of women.52 Ṣanʿāni’s argument suggests that the half diyah stipulation is rooted in the ­second primary source of Islamic law as something that received the endorsement of the Prophet (PBUH). The implication of attributing this statement to the Prophet Muḥammad is, if it turns out to be the position of sharīʿah, that the half diyah stipulation becomes a ‘no go area’, thus not debatable within the Islamic framework. Consequently, this forecloses any agitation for gender equality with respect to diyah between men and women from within the sharīʿah regime in view of the bindingness of Sunnah as the second major source of Islamic law. It is an established principle of reconciling conflicting aḥādīth that the conflicting narratives may only be reconciled if both of them are classified valid, in the nature of ‘ṣaḥīḥ’ (authentic) or ‘ḥasan’ (good). This means that a ḍaʿīf (weak) narration does not merit consideration in the face of valid narration, since they

51 

‘Ash’ariyya and Mu’tazila’ www.muslimphilosophy.com/ip/rep/H052. Subl al-Salām (n 24) vol II at 365.

52 Al-Ṣanʿāni,

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are not on the same pedestal.53 It is therefore wrong to reconcile narrations of unequal status, as a weak narration, according to prevailing opinion, cannot be used as the basis for any legal ruling (ḥukm).54 Even where the two narratives satisfy the requirement of validity as enunciated by the scholars of ḥadīth, another requirement is that the process of conciliation is undertaken only if their chronological sequence cannot be ascertained.55 Careful analysis of the happenings during the formative period of Islam reveals that the two narratives under consideration must have been wrongly reconciled, as historical facts were not taken into account. One will appreciate the scenario sought to be drawn when recourse is made to the historical facts herein discussed. It is on record that both Muʿādh b Jabal and ʿAmr b Ḥazm were among the closest young companions of the Prophet. It is also an established fact that they were all sent on special assignments outside Madīnah to what used to be called the Greater Yemen.56 Furthermore, it is a known fact that, immediately after the Battle of Tabouk in 9 AH/631 AD, the Prophet sent Muʿādh to Yemen on administrative and judicial duty;57 and that since Muʿādh left Madīnah for the assignment he did not come back until after the death of the Prophet in 10 AH58 Ibn Kathīr notes some narrations which suggest that Muʿādh came back before the death of the Prophet but he debunked the assertion stressing that the most reliable information is that he did not come back.59 On the other hand, before his death, the Prophet sent ʿAmr b Ḥazm on a similar mission to Najrān in Yemen in 10 AH/632 AD, and he too did not come back to Madīnah until after the demise of the Prophet.60 The time margin apparently shows that the later narration was that of ʿAmr and not that of Muʿādh. It may well be worth noting that since both ʿAmr and Muʿādh were emissaries of the Prophet to the same region, there is a presumption, albeit rebuttable, that they all received similar message. This seems to be true when one takes into account some narrations on diyah for loss of teeth and loss of faculties such as mental, hearing, speech etc reported by Bayhaqi, and attributed to Muʿādh b Jabal.61 If what we postulate here turns out to be the case, the question that readily comes to mind is why should the two messages differ in their contents? How can

53  M Kamali, A Textbook of Ḥadīth Studies: Authenticity, Compilation, Classification and Criticism of Ḥadīth (Leicestershire, the Islamic Foundation, 2009) at 109. 54  ibid, at 149–50. 55  ibid, at 130. 56  Greater Yemen covers the Republic of Yemen as well as the Southern regions of Saudi Arabia, such as Asir, Najran, Jizan, etc. 57  M Al-Dhahabī Tārīkh al-Islam, 1st edn, vol I (Beirut, Dār al-Ghurab al-Islāmī, 2003) at 464; IU Ibn Kathīr, Al-Bidāyat wa al-Nihāyah, 1st edn, vol VII (AA al-Turki, ed) (Dār Hijr, 2003) at 382. 58 ibid. 59  IU Ibn Kathīr, Al-Bidāyat wa al-Nihāyah (n 57) vol VII at 386. 60 Al-Liḥyāni (n 25) at 53; M Lecker, ‘Amr ibn Ḥazm al-Anṣāri and Qurʾan 2:265: No Compulsion is There in Religion’ (1996) 35 Oreins 57–64, note 14 at 59. 61  See AA Bayhaqī, Sunan al-Bayhaqī al-Kubrā, vol VIII (MA ʿAṭāʾ, ed) (Makkah, Maktabat Dār al-Bāz, 1994) at 83–95.

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the disputed expression ‘the compensation of woman is half that of man’, which Ibn Ḥajar and Albāni claim is not found in the epistle of ʿAmr be accepted as authentic with reference to Muʿādh’s? Is it possible for the Prophet to give different instructions to his emissaries on the same subject matter? If the answer is in the affirmative, the implication will be that diyah can vary from place to place since in Yemen the Prophet instructed Muʿādh to collect 50 camels as diyah for woman and 100 for man while in Najran he gave contrary instruction of 100 camels across genders. This assumption seems to support Javed Ahmad Ghamidi’s u ­ npopular view. He uses linguistic analysis to reach the conclusion that the quantum of diyah is relative and is determined by the ‘general custom and tradition’ of a given community.62 According to him, the Qurʾān uses a common noun ‘diyah’ as against ‘al-diyah’, which is a proper noun. The implication of this usage, according to him, is that there is no fixed rate for diyah but it may only be contextually determined according to the usage of a given society.63 Much as the argument of Ghamidi has some substance, it is submitted that the instruction of the Prophet to the emissaries was meant to harmonise the diyah of human beings in all territories of Islam irrespective of one’s social or gender status. On the other hand, if the answer to the question posed is in the negative, then the two epistles must have been worded the same way. Why do the two narrations differ then? Since the scholars of ḥadīth have scrutinised the epistle given to ʿAmr and could not find the disputed expression ‘the compensation of woman is half that of man’, does it sound rational to hold as authentic the one contained in the Muʿādh’s epistle? Having declared the said expression as ‘weak’ insofar as, the epistle of ʿAmr b Ḥazm was concerned, it is only logical that the one said to have allegedly emanated from Muʿādh should suffer the same consequence. Another possibility is to consider the Muʿādh’s narration as something entirely independent of the said epistle given to the emissaries, by assuming that Muʿādh had heard the Prophet say, ‘the compensation of woman is half that of man’ on a different occasion. Suppose this was the case, the question that readily comes to mind is, when or on what occasion? At least, the fact that Muʿādh went on assignment to Yemen is not in dispute. At what time did he hear this ḥadīth from the Prophet? Was it before his departure from Madīnah to Yemen or later? As noted above, the last meeting of Muʿādh with the Prophet was before leaving for Yemen, and he did not return to Madīnah until after the Prophet’s death. That being the case, he could not have heard the narration after his return to Madīnah. The only possible time he could have heard it must have been before his departure for Yemen. The resultant effect of this proposition will be that, perhaps up to 9 AH, the diyah of a woman was half that of man in accordance with the pre-Islamic Arabian system of compensation. However, this default legal order was reformed 62  JA Ghamidi, ‘What is Diyah?’ (trans S Saleem) (2002) 12(9) Islamic Punishments: A Fresh Insight Renaissance Monthly Islamic Journal, special edn www.monthly-renaissance.com/issue/content. aspx?id=446. 63 ibid.

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towards the end of Muḥammad’s lifetime in 10 AH, which the dispatched epistle handed to Amr b Hazm seems to suggest. This sounds reasonable given the evolutionary nature of the Islamic legal development during its formative stage. The sequencing approach identified above appears to support this proposition, which is to the effect that Q5:45 was the last verse to be revealed in relation to homicidal cases, thus abrogating Q2:178. It may then be taken that during the early period of Islam, there was difference of diyah between men and women as was common under the default system of the pre-Islamic Arabian society. Since there was no contrary order in the nature of revelation to the Prophet, halving of diyah became the established normative order only to be changed thereafter. Interestingly, according to Ibn Saʿad in Al-Ṭabaqāt Al Kubrā, the quantum of diyah before Islam was 10 camels but was later changed to 100 camels by Abdul ­Mutallib. This was adopted by all the Arab tribes including the Quraysh. According to ʿAbdullahi b ʿAbbās this practice was maintained by the Prophet (SAW).64 It is therefore submitted that the new gender-neutral order came when Muʿādh was in Yemen away from the Prophet. The problem with the collection of ḥadīth is that the Prophet did not officially order its collection during his life. However, this assertion should not be interpreted as doubting the existence of individual collections. Many companions had recorded the aḥādīth of the Prophet in writing, although at a point he stopped the writing of ḥadīth so as to avoid becoming mixed-up with the Qurʾan,65 although he lifted the embargo thereafter. Recorded evidence has shown that the Umayyad caliph, ʿUmar b ʿAbdul Azīz (d102 AH/720 AD), was the first to order official collection and writing of ḥadīth during his tenure.66 In view of this therefore, it was difficult to catalogue the aḥādīth in chronological order to enable a discerning mind to ascertain, in cases of contradiction, which of the various narrations was either the first or the last in time. On the contrary, the Prophet was the one who ordered the collection of the Qurʾān during his lifetime. This period in question also witnessed proliferation of many false narrations attributed to the Prophet by some people for their selfish ends, particularly fabricated ahādīth along sectarian or political lines.67 Such ugly scenarios caused many problems to the Muslim community, ranging from uncertainty as to the genuineness of some narrations, trustworthiness of the transmitters and likelihood of contradictory narratives. This necessitated the development of some strict criteria for determining the authenticity and veracity of aḥādīth, known as the science of ḥadīth.68 64 

M Ibn Saad, Al-Ṭabaqāt Al Kubrā, vol I (Beirut, Dār Kutub al-ʿIlmiyyah, 1990) at 72. IA Al-Marzouqi, Human Rights in Islamic Law (Abu Dhabi, Diane Publishing Company, 2000) at 10 and 34. 66 ibid. 67  S Hassan, An Introduction to the Science of Hadith (London, Al-Qurʾan Society, 1994) at 30; J Auda, Maqāṣid al-Sharīʿah as Philosophy of Islamic Law: A Systems Approach (London, The International Institute of Islamic Thought London, 2008) at 61. 68 ibid. 65 

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The criteria appear to be more inclined to tracing the chain of transmitters and the content of the narration.69 Analysis of the chronological order of narrations is hardly visible in the literature on the science of ḥadīth thus leaving both abrogated and abrogating narrations in the corpus of ḥadīth. Scholars like Al-Zuhri have acknowledged this problem and attributed it to the lack of adequate knowledge of ḥadīth abrogation among scholars.70 Undertaking such an endeavour in resolving these contradictory narratives, might have brought to light the true position of the sharīʿah on the diyah of woman, as attempted in this chapter. At any rate, insofar as the narratives of Muʿādh b Jabal and ʿAmr b Ḥazm were concerned, the failure to consider the order of these narratives had had a telling effect on the right of women to equal diyah in Islamic legal tradition. The half diyah stipulation has acquired an almost eternal and universal feature in the classical Islamic literature, such that the opposing narration is either misinterpreted or simply suppressed and relegated to the background as non-existent. From the above analysis, it is clear that disparity of diyah along gender lines was part of the practice of the pre-Islamic Arabs partly adopted by the Prophet. It was, however, replaced with a new order as established in the epistle sent to his emissary to Najran, Amr b Hazm. The only reasonable conclusion one can make here is that classical jurists did not advert their minds to such historical facts.

VI.  The Half Diyah Narration in the Earlier Hadith Literature As alluded to earlier, Ṣan’āni declares the narration of Muʿādh as the basis of diyah disparity across genders. As we shall discuss below, the said narration of Muʿādh was not reported in the first four centuries of Islamic history. It is also pertinent to know that the said narration on half diyah was not reported in any of the early collections of ḥadīth like the Muwaṭṭa of Imām Mālik (d 179 AH/ 795 AD). However, the Musnad of Imam Shafi’i mentioned ‘Aṭā’, a follower of the companions, as reporting that diyah disparity was the order of the day during the time of the Prophet and that Umar b Khattab had reaffirmed it during his reign.71 Similarly, the half diyah narration is not reported in any of the six highly rated aḥādīth collections (ṣiḥaḥ sittā) viz: Ṣaḥīḥ Bukhāri, Ṣaḥīḥ Muslim, Sunan Abu Dawūd, Sunan Tirmidhi, Sunan Nasā’i and Sunan Ibn Mājāh.72

69 M Haredy ‘Ḥadīth Textual Criticism: A Reconsideration’ (2005) https://archive.islamonline. net/?p=5986. 70 Kamali, A Textbook of Ḥadīth Studies (n 53) at 127. 71  MI Shāfiʿi, Al-Musnad (Beirut, Dār Kutub al-ʿIlmiyyah, 1980) vol I at 348. 72 Qaraḍāwi, Y, ‘Diyat al-Mar’at fi al-Sharīʿat al-Islamiyyah’ (unpublished, 2005) www.cmrim.com/ index.php?option=com_content&view=article&id=2573:2012-11-21-10-18-06&catid=121:2012-1115-12-51-36&Itemid=233.

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According to Yūsuf al-Qaraḍāwi he has gone through generations of āḥadīth collection from 194 AH/810 AD, being the first generation, starting with the two major collections of Bukhāri and Muslim, but did not see such narration. He also checked the second generation, comprising the four Sunan mentioned above, which ended in 303 AH/915 AD, but could not see any such ḥadīth transmitted through Muʿādh b Jabal or any other narrator.73 Indeed, he could not find even a hanging ḥadīth (muʿallaq),74 which is the lowest in the categories of chain of transmission (isnād), in support of the half diyah formula.75 He also searched through the Musnad of Abū Yaʿala, Ṣaḥīḥ of Ibn Khuzaymah, Ṣaḥīḥ of Ibn Ḥibbān, Sunan of Ṭabarāni among others, constituting the scholars of the third generation of ḥadīth collection, without any trace of such ḥadīth.76 In essence, this narration of Muʿādh b Jabal was not reported until the fifth century AH/eleventh century AD, as recorded by Imām Bayhaqī (d 458 AH/1066 AD) in his famous collection Sunan al-Kubra. However, the fact that Bayhaqi reported the ḥadīth did not stop him from critically assessing its validity; and was quick to fault it as weak (ḍaʿīf)77 since it emanated through Ubāda b Nusayy.78 Paradoxically, despite the apparent defects observed in the transmission of this narration, none of the scholars of ḥadīth declared it a fabrication. Having declared it weak, they appear to allow it to be used in legal rulings on the ground that it is supported by the views of other companions.79 One would have expected such express declaration from Qaradāwi’s courageous effort of championing the cause of challenging the validity of the said narration. Nevertheless, he appears to be very cautious in his selection of words by not declaring the disputed expression as fabricated or forged (mauḍuʿ). He argues that if inequality was the norm, the epistle given to ʿAmr b Ḥazm should have contained that since it contains the tariffs due for every injury.80 Although Yūsuf al-Qaraḍāwi emphatically denies the existence of the narration of Muʿādh b Jabal in the earlier aḥādith collections, Imam Shafi’i had reported the existence of a diyah disparity during the lifetime of the Prophet SAW as confirmed by some followers of the companions like ‘Aṭā’.81 However, he did not link 73 ibid.

74  Muʿallaq is a ḥadīth whose reporter omits the whole chain of transmitters and quotes the Prophet directly. eg Mr A, the reporter omitting the name of a successor to the successors (tābiʿi tābiʿin); a successor (tābiʿī) and a companion (ṣaḥābī) who heard and narrated the ḥadīth from the Prophet. Such types of aḥādīth are found even in Bukhāri and Muslim. It is not declared invalid by scholars as they may well be authentic, good or weak (see M Kamali (n 53) at 163.) 75 Qaraḍāwi, ‘Diyat al-Mar’at fi al-Sharīʿat al-Islamiyyah’ (n 72). 76 ibid. 77 A ḥadīth is declared weak on many grounds, which includes the reporter’s questionable character, or that he is an unknown personality. Likewise, where there is broken chain in the transmission as where the narration is mursal, muʿallaq, munqaṭiʿ or muʿḍal. See generally Hassan, An Introduction to the Science of Hadith (n 67) at 13–17. 78 Qaraḍāwi (n 72). 79 Albāni, Irwāʾ al-Ghalīl fi Takhrīj Aḥādīth Manār al-Sabīl (n 32), vol VII at 306. 80 Qaraḍāwi (n 72). 81 Al-Shafi’i, Al-Musnad (n 71) vol I at 347.

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the n ­ arration to Muʿādh or to any companion save ʿUmar b Khattab whom it is claimed reaffirmed the disparity during his reign. Hence, Yūsuf al-Qaraḍāwi’s refusal to declare the half diyah narration as fabrication.

VII. The ‘One Third’ Formula in Bodily Injuries Apart from the half diyah narration, there is yet another narration from Amr b Shu‘ayb, the grandson of ʿAmr b Al-ʿAṣṣ, in which it was reported that the Prophet had ruled that in bodily injury men and women are indemnified on equal terms up to the maximum of one third of full diyah.82 The prevailing view of the Maliki School is that in all cases of bodily injury, equal compensation applies to both sexes up to the maximum of one third of a man’s diyah.83 In other words, equality ceases where the aggregate claim of compensation for injuries sustained by the woman is more than one third of a man’s diyah; her claim is reduced and quantified based on half of a man’s diyah.84 This is the position of Mālik and his disciples.85 This school relied on the fatwas of successors (ṭābiʿun),86 who, in turn, relied upon the views of some companions of the Prophet like Zaid b Thabit (d 45 AH/666 AD) and ʿAbdullāh b ʿAbbās (d 68 AH/643 AD).87 The Ḥanbalis support this view, although there is no agreement on whether to maintain equality ‘up to’ or ‘below’ one third of man’s diyah.88 On the other hand, Imām Al-Shafiʿi had reservations over the authenticity of the up to one third narration. According to Imām Al-Shafiʿi, he used to apply that principle since his teacher, Imām Mālik was referring to it as Sunnah. However, it dawned on him that what Imām Mālik actually meant here was the practice of the people of Madīnah; and upon this discovery, he stopped using it.89 Again, according to another authoritative source, Imām Shāfiʿi was quoted as saying: we use to refer to it (ie, Saʿīd b Musayyib’s narration), but we later stopped … This is because we know the person saying it is Sunnah but we did not see where he linked it to the Prophet (PBUH). For that reason, analogy is a better choice for us in this case.90

82 

Ibn Qudāmah (n 27) vol VIII at 403. Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (New York, Cambridge University Press, 2005) at 53. 84  A Mālik, Al-Mudawwanat al-Kubra, vol IV (Beirut, Dār Kutub al-ʿIlmiyyah, 1994) at 627–28. 85  AMA, Ibn Rushd, Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid, vol II (Cairo, Mustapha Albābī Printing and Publishing Company, 1975) at 513. 86  Like Saʿīd b Musayyib (d 94 AH/711 AD), ʿUrwat b Al-Zubayr (d 94 AH/711 AD) and Muḥammad b Abībakar Al-Zuhrī (d 124 AH/741 AD). 87  SH Al-Bāji, Al-Muntaqa Sharḥ al-Muwaṭṭa, 1st edn, vol VII (Egypt, Maḍbaʿat al-Saʿādah, 1913) at 78. 88  M Al-Maqdisī, Kitāb al-Furūʿ, vol X (Beirut, Al-Resalah Publishers, 2003) at 9; AS Al-Mardāwi, Al-Inṣāf, vol X (Beirut, Dār Iḥyāʾ al-Turāth al-ʿArabi, 1998) at 49. 89 AA ʿAsqalāni, Talkhīṣ al-Ḥabīr, vol IV (Cairo, Muʾassasat al-Qurṭubah, 1995) at 49. 90  AY Zaylaʿi, Naṣbu al-Rāyat li Aḥādīth Al-Hidāyah, vol IV (M ʿAwāmah, ed) (Beirut, Muʿassasat al-Rayyān, 1997) at 364. 83  R

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Scholars of ḥadīth equally disapproved this narration as weak narration on the ground of what is technically referred to as ‘tadlīs al-isnād’, ie the narration suffers from concealment of authority.91 This means there is uncertainty as to whether Ibn Jurayj, the reporter of the narration had actually met ʿAmr b Shu ʿayb, the person from whom he claimed to have heard the narration. Both the early scholars (al-mutaqaddimūn) like Bukhāri and Aḥmad b Ḥanbal and the later scholars (al-mutaʾakhkhirūn) like Albāni concur on the weakness of Ibn Jurayj, as he was known for tadlīs (concealment of defect). Indeed, Bukhāri and Aḥmad hold the view that Ibn Jurayj, the reporter of this narration, did not meet ʿAmr b Shuayb.92

VIII.  Opinion of Individual Companions as Source of Half Diyah Stipulation Having established the absence of the half diyah stipulation in the primary sources of Islamic criminal regime, it is pertinent to review the opinions of some companions with a view to ascertaining whether the issue was unanimously settled by them at the formative stage of Islam. In this section, two arguments are made: there was hardly an ijmāʿ on the issue of half diyah, and that even if it existed, as a subsidiary source of Islamic law, juridical consensus is only resorted to when an issue is not dealt with in the Qurʾān or the Sunnah. Claim of the existence of ijmāʿ is commonplace in the classical fiqh literature. It is, however, one thing to make a claim and another to prove a consensus really existed.93 The issue under review here is whether there was ijmāʿ of the companions on the half diyah of a woman as is being claimed. Ascertaining this issue is imperative in view of the serious division among the ranks of the contemporary scholars in that regard. Some jurists consider the ruling on half diyah as a definitive (qaṭʾīʿ)94 while others see it as speculative (ẓannī),95 as evidenced in the ­writings of Yusuf al-Qaraḍāwi and Saʿud Abdullāh al-Finīsāni.96 Al-Finīsāni sees the ruling on diyah as definitive while Qaraḍāwi considers it otherwise. Qaraḍāwi’s view receives the support of early scholars like Shāfiʿi, who declared that only

91 Qaraḍāwi

(n 72). ibid; Ibn Qudāmah (n 27) vol VIII at 403. 93 AH Ali, ‘Scholarly Consensus: Ijmāʿ: Between Use and Misuse’ (unpublished, 2010) www.­ lamppostproductions.com/files/articles/Scholarly%20Consensus.pdf. 94  A ruling is said to be definitive where it is clearly and unequivocally stated in the text and such a ruling is binding and not debatable and it also admits no ijtihād. 95  A ruling is speculative when it is not clear and equivocal. Ijtihād, in this case, may be undertaken by the scholars to ascertain the actual position. Such ruling, though non-binding, will nevertheless have binding force if it is supported by a ḥadīth or by a consensus (ʾijmāʿ). 96  cf the positions in S Al-Finīsāni, ‘Istidrāk wa Taʿqīb ʿalā Fatwā Diyat al-Mar’a’ (2006) available at http://www.islamtoday.net/bohooth/artshow-35-7039.htm and Qaraḍāwi (n 72). 92 

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matters unambiguously stated in the Qurʾān and Sunnah can be regarded as definitive ruling.97 Juridical consensus presupposes the agreement of all qualified scholars of a given time without any dissent. This means that an issue must have been tabled before the companions and the opinion of each of them extracted, analysed and synthesised.98 This would seem difficult in view of their number and the fact that not all of them were living in Madīnah. However, notwithstanding the seeming difficulty in arriving at an ijmāʿ, as per the legal theorists’ definition, juridical consensus used to be arrived at during the period of the companions through various means, the chief of which was by consultation usually triggered by a legal ­question.99 A conclusive ijmāʿ used to be reached when one of the caliphs decided an actual case through ijtihād (exercise of personal reasoning) and was not objected by other companions.100 Going through the literature, what emerges in this respect is that there was hardly any actual case where a matter involving the unintentional killing of a woman was either tabled before the companions for their opinion or determined by a caliph. During the formative period, it was common to table a legal issue of importance before the public in the mosque to elicit their input. The case of limiting the dower (mahr) is instructive in the circumstances. In this case, the second caliph, ʿUmar was unhappy with the way people were paying an exorbitant amount in the name of dower and wanted to limit it to what he felt was reasonable. No sooner had he finished the statement than one woman felt uncomfortable and challenged him saying: ‘O leader of the Faithful! You prevented people from paying more than four hundred dirhams for a dower’. He said, ‘Yes!’ She said: ‘Have you not heard what Allāh sent down in the Qurʾān 4:20: If you wish to take one wife in place of another and you have given the first one a large sum of money do not take away anything of it. Would you take it away though that constitutes a gross injustice and a manifest sin?’

Immediately, he withdrew his statement in the following words: ‘O Allah! Forgive me.’ He then went back and stood up on the Minbar saying, ‘I had prohibited you from paying more than four hundred Dirhams in a dowry for women. So, let everyone pay what he likes from his money’.101

97  MH Kamali, Principles of Islamic Jurisprudence (Cambridge, The Islamic Texts Society, 2003) at 228. 98 M Izzi Dien, Islamic Law from Historical Foundations to Contemporary Practice (Indiana, ­University of Notre Dame, 2004) at 41. 99 ibid. 100  AA Qadri, Justice in Historical Islam (Lahore, Sh. Muhammad Ashraf, 1968) at 18. 101  Quran X.com, 7 Tafsir(s) Related to Verse 4.19 available at http://quranx.com/Tafsirs/4.19; see also ‘Does Islam Discourage Women from attending the Masjid?’ available at www.a1realism.com/ ENGLISH/human_rights/Islamdiscouragewomen.htm.

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Apparently, while he was delivering the sermon in the mosque, many companions of the Prophet were there but did not support ʿUmar’s view. This made the opposing view the accepted norm under the Islamic law. It is also a known fact that the caliphs or their appointed judges used to deliver judgments; and in the absence of any precedents, they used their reasoning to adjudicate and issue verdicts. Such rulings acquire the status of ijmāʿ in the absence of any dissenting view from any other companion. The idea of best interests of the child in Islamic law emerged from such decisions.102 A matrimonial dispute was brought before the first caliph, Abūbakar involving ʿUmar b Khaṭṭāb and his divorced wife, both claiming the right to custody of a child. In giving judgment in favour of the divorced woman, the caliph observed: ‘O ʿUmar! For this infant, his mother’s spit is better than honey which you may procure’.103 Caliph Abūbakar made this decision in the midst of other companions without objection from them and it became an ijmāʿ. From these examples, it can be said that consensus could be reached either expressly (al-ijmāʿ al-ṣarīḥ) or implicitly (al-ijmāʿ al-sukūti). The question one may ask is whether the half diyah stipulation was reached through any of these two forms of ijmāʿ. Obviously, no statistic is available to give an accurate account of the nature of cases during the formative period of Islam, but we have to bear in mind that the degree of occurrence or probability of occurrence of a phenomenon can be measured by the proliferation of cases before an adjudicator at a given period. It is also measurable through sociological indicators of a given historical age. For instance, it is common for both genders in any society to be involved in matrimonial disputes, because the desire for procreation necessitates strong social intercourse between the opposite sexes in any given generation. People resort to marriage as a gateway to legitimise procreation, although in modern days it is not always the case. Therefore, it is natural in such arrangement for partners to approach state agencies like courts for determination of their matrimonial disputes as evidenced in the case of ʿUmar and his wife on child custody and many cases not reported here. During the period under review, marital relations between the opposite sexes were all too common. In such a situation, divorces and other matrimonial disputes were more likely to occur. Apart from cases of custody there were cases of khul’ and of a lady challenging her father’s authority to force her into marriage. Similarly, social havoc, that may result in the growing number of unmarried youth, problem of broken marriages etc, were more likely to attract the attention of the authorities because of the numerous cases emanating from such relationships. ʿUmar’s attempt at restricting the dower is instructive here. Therefore, matters of this nature are all matters within the private sphere, and of course all sexes will be involved. Conversely, disputes in the public sphere, which was considered the domain of men, were more likely to involve men only, although involvement of women cannot be ruled out. 102 Qadri, 103 ibid.

Justice in Historical Islam (n 100) at 18.

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Now, if we critically assess the occurrence of unintentional homicide that attracts payment of diyah, we will realise that the common examples given by the classical jurists always involved cases of accidental shooting in the course of hunting. One hardly finds any example in the nature of say, a plane crash or motor accident, as commonly happens today. Of course, during the classical period trades like hunting were the preoccupation of men, as the division of labour between public and private was so obvious that one can claim, without mincing words, that it would be difficult to find women engaged in hunting during this period. It was also not common to find a woman wandering alone in the desert. Even in modern days, women are less likely to be victims of heinous offences outside domestic crimes, just as they are less likely to commit them. For instance, in 2012, the report of United Kingdom Office for National Statistics shows that of every five crime suspects four of them were male.104 If a free society like the United Kingdom can have such a low figure for females involved in crimes one wonders what statistics would have shown for female criminality during the formative period of Islam. Even in a typical Muslim community like the North-western part of Nigeria it is difficult to see a woman in court on criminal allegation, barring the recent phenomenon of drug abuse, where women are now peddling anti-depressants. There was hardly any reported case before any of the four rightly guided caliphs in which a man mistakenly killed a woman. Indeed, the reverse case scenario was even harder to come by in view of the delineation of social boundaries between men and women. However, cases that fall under the class of intentional homicide across genders were possible, as in the case of the man who crushed a woman’s head to steal her ornaments, cited above. Drawing an analogy from this postulation, disputes/offences involving both genders were more likely to occur in the private sphere than in the public sphere, because the former afforded more room for interaction between opposite sexes than the latter. Misunderstandings that may lead to dissolution of marriage, for instance, could not be ruled out. As such, it would not be surprising to come across many rulings on this issue during the period under review. However, a similar conclusion cannot be reached with respect to homicide cases, since they were more likely to occur in the public domain. Accidental or unintentional homicide culminating in the killing of woman by man was even more difficult. Hence, the rarity of the recorded instances of unintentional homicide across the genders at that time. The difficulty in identifying an actual case of unintentional homicide involving a man and a woman in the age of the companions makes it less likely to afford them the chance to air their views on the issue. The result is that there was hardly any explicit ijmāʿ on the matter under review. However, pronouncements of ­individual companions have been recorded in the literature of fiqh and ḥadīth to

104  Office for National Statistics, UK, ‘Crime:4 in 5 offenders are Male’ available at www.statistics. gov.uk/CCI/nugget.asp?ID=442.

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justify the half diyah stipulation, as we shall discuss below. Suffice it at this stage to state that all of these narratives are of doubtful origin, for they have been analysed by scholars of ḥadīth and were found wanting mostly on ground of weaknesses of their chains of transmission.105 As noted in chapter 3, ʿUmar b Khaṭṭāb is said to be among the companions who stipulated half diyah for women along with ʿAli b Abī Ṭalib, Zaid b Thābit and Abdullāhi b Masʿud. For that, the half diyah stipulation was given the stamp of finality as consensus (ijmāʿ) of the companions, since no opposing view was expressed.106 The question asked is on what occasion did they meet and agree on this? Was there an actual case they decided? Who were the parties? Given that the number of the Prophet’s companions was very high, running into thousands, can four or even a hundred of them take a decision that will bind all generations of Muslims? Furthermore, given that the companions had dispersed throughout the Muslim territories, how possible was it to seek the opinions of all of them on the issue? The rarity of the unintentional homicide cases involving a man and a woman, as alluded to earlier, made it almost certain that these were mere individual opinions of the respective and respectful companions. There is also the problem of ascertaining when a particular pronouncement was made, even if it was uttered. For instance, in the case of ʿAli, at least three contradictory views emerged as coming from him. Sarakhsi is quoted as saying that the expression ‘the compensation of woman is half that of man in loss of life and injury’ was not the saying of the Prophet but something attributable to ʿAli b Abi Ṭālib.107 Qaraḍāwi has cited another narration by Ibrahim al-Nakha’i and reported by Bayhaqi which was attributed to ʿUmar and ʿAli that they both agreed that compensation of woman is half that of man in loss of life and injuries.108 This statement however could not escape the onslaught of scholars of ḥadīth like Bayhaqi, who declares it broken (munqaṭiʿ).109 Indeed, research has shown that al-Nakha’i did not meet any of the Prophet’s companions.110 Another statement attributed to ʿUmar which reads: ‘The compensation of woman is five hundred gold coins or six thousand silver coins’, was faulted by the

105 See generally Qaraḍāwi (n 72); MI Abū Shallāl, Diyat al-Marʾatul Muslimatu fi al-Sharīʿat al-Islāmiyyah (thesis submitted to the Faculty of Postgraduate Studies, Al-Najah National University for the award of MSc of Islamic Laws and Islamic Legislation, Nablus, Palestine, 2007) at 87–101. https://scholar.najah.edu/sites/default/files/all-thesis/muslim_woman_diya_at_the_islamic_shrea.pdf. 106  Al-Sarakhsi (n 12) vol XXVI at 140. 107 ibid. 108 Qaraḍāwi (n 72). 109  It is classified as broken where in narrating a ḥadīth or statement there is a missing link before the name of a successor. eg Mr A reports that Mr C (a successor of the companions) narrated to him so and so and omits Mr B who was his immediate source. In addition, it is declared as broken even though the chain of transmission is continuous where it is factually known that one of the reporters had not heard from his immediate authority, even if they were contemporaries. See Hassan (n 67) at 13. 110 Abū Shallāl, Diyat al-Marʾatul Muslimatu fi al-Sharīʿat al-Islāmiyyah (n 105) at 93–95.

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scholars of ḥadīth like Bukhāri and others as ‘denounced’ (munkar al-ḥadīth),111 because someone by the name of Muslim b Khālid Al-Zinji featured in the chain of transmission.112 This prompted Qaraḍāwi to conclude that such statements lack any authority, and can neither be the basis for legal ruling nor corroborate a similar statement (athar).113 Against what was attributed to ʿUmar b Khaṭṭāb, there are other reports that are at variance with that assertion. It is reported by Ibrahim al-Nakha’i from Shurayḥ that ʿUmar treated as equal injuries of both male and female as attested by his words as follows: ‘the injuries of both men and women are the same’.114 Scholars of hadith have faulted another narration that ʿAli did not allow execution of a man for killing a woman save after remittance of half of a man’s diyah to his next of kin.115 Al-Qurṭubi (d 671 AH/1273 AD) refuted this assertion arguing that there was a broken chain in its transmission since Al-Shaʿabi, the purported narrator of that opinion, did not meet ʿAli b Abu Ṭālib, so could not have heard that view from him.116 On the contrary, Al-Qurṭubi cited another pronouncement of ʿAli where he advocated equal treatment of sexes.117 Another authoritative source, Ibn Ḥajar dismissed Al-Shaʿabi’s narration as untrue, insofar as it is being attributed to ʿAli. He said this statement was the view of Uthman al-Batti, a prominent scholar of Basra.118 From the above, even if we disregard the more reliable and gender-neutral pronouncements of ʿUmar and ʿAli, by holding that halving of woman’s diyah was their opinion, the principle is at best attributable to individual companions. The question is whether such opinions have binding effect. The exalted position accorded the companions because of their closeness to the Prophet and the services they rendered in nurturing the religion put them in far better position to articulate the principles and objectives of the law. Even then, scholars do not agree on whether their individual opinion (ie qaul al-ṣaḥābi or madhhab al-ṣaḥābi) is an authoritative source of law.119 ʿAbdullahi Yūsuf Al-Judaiʿ identifies three opinions in this regard. First, where the opinion was widely known among the companions and no contrary view was available, it is taken as authoritative. This, according to the classical views of the Ḥanafis, Mālikis, Ḥanbalis and Shāfiʿis, will be considered as ‘implicit consensus’ (ijmāʿ al-sukūti).120 Secondly, the opinion will have no binding force if another 111  It is munkar if its narrator fails the test of trustworthiness (ʿadālah), or the narration goes ­contrary to an authentic narration. See Kamali (n 53) at 148. 112 Qaraḍāwi (n 72). 113 ibid. 114 AA ʿAsqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri, vol XVI (NM Al-Fāriyabi, ed) (Riyadh, Dār al-Ṭaibah, 2005) at 25. 115  M Al-Qurṭubi, Tafsīr al-Qurṭubi (Cairo, Dar Kutub al-Misriyyah, 1964). 116 ibid. 117 ibid. 118  ʿAsqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri (n 114) vol XVI at 25. 119  AY Al- Judaiʿ, Taysīr ʿIlm ʿUsūl al-Fiqh, 1st edn (Beirut, Muassasat al-Rayyān, 1997) at 216. 120 ibid.

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companion challenged it.121 Thirdly, where it was not widely known among the companions, majority scholars accept it as binding while others do not.122 Al-Judaiʿ did not merely give the rendition of the views of legal theorists on this point, but has analysed them taking into account the aḥādīth that show the preeminence of the companions. He then concluded that the authorities relied upon only prescribe obedience to the companions as leaders, but have not made their opinions as binding.123 According to Al-Judaiʿ, if the opinions of companions were binding at least the four rightly guided caliphs would have demonstrated that by their actions. This is discernible from the fact that succeeding caliphs did not endorse and apply all the rulings of their predecessors. For instance, ʿUmar b Khattāb did not follow all the rulings of Abūbakar, nor did ʿUthman and ʿAli. Indeed, the succeeding caliphs had turned down many such rulings.124 For instance, ʿUmar b Khaṭṭāb overhauled the state welfare system he inherited from ʿAbubakar and instituted a different arrangement. During the days of the first caliph, Abūbakar, the state welfare package was distributed to the Muslims according to one’s needs, as the caliph did not see any justification in sharing government resources asymmetrically. As a result, the early and late converts to Islam were treated equally and given equal share from the public treasury.125 The issue that arose was whether one’s loyalty and service to Islam was worth considering in assessing the quantum of one’s entitlement from the public treasury. While most of the companions felt it was worth considering, the first caliph felt differently. He remarked that, ‘those who served Islam would have their reward from God, the Most High; as for dealing with the people’s needs, they should be treated equally without any reference to their past record’.126 Abūbakar’s stance did not go down well with ʿUmar, who later introduced a hierarchical system, as discussed in detail in chapter 4. In the same vein, Imām Shawkāni also opines that the opinion of a companion is not a binding proof. In his words, The truth of the matter is that God did not send to this community anybody besides Muḥammad (PBUH). We have only one Prophet and one book (the Holy Qurʾān). God bounds all the people of this community to follow His book and the practice of His ­Messenger. There is no difference, in this respect, between the companions and their ­successors. The dictates of Sharīʿah binds all of them.127

Furthermore, Imām Shawkāni said the only area jurists differ is on the question whether the ijtihad of the companions binds the subsequent generations. Even

121 ibid. 122 ibid. 123 

ibid, at 218. ibid, at 167. See Kamali, Freedom, Equality and Justice in Islam (n 16) at 60. 126 ibid. 127  MA Shawkāni, Irshad al Fuhuli ila ilm al Uṣūl, vol II (Cairo, Dar al-Kitab al Arabi, 1999) at 188. 124  125 

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then, he argues that just as it was not binding among the companions inter se, it is not binding on the subsequent generations according to the majority view.128 It is on record that some of the caliphs reached a number of decisions based on intellectual reasoning but unknown to them already the Prophet had decided a similar case differently. The companions around the caliph, at the material time, might not be aware of the Prophet’s decision, and consequently, they allowed the later ruling to sail through unchallenged. The four rightly guided caliphs were, by nature, humans and could not know all or be privy to all the Prophet’s utterances and actions spanning more than two decades. They were not glued to the Prophet as people assume. Some were family men and had to fend for the family. They often engaged in journeys and business trips. The closest people to the Prophet like Abūbakar and ʿUmar were his in-laws so were ʿUthmān and Ali both of whom got married to his daughters. There were instances where out of shyness some of them could not ask the Prophet any question directly except through an intermediary. Obviously, they may not be around to hear the answers. The Prophet himself, being a family man, had his personal life, so had to be with his family in his matrimonial home. Happenings there can only be narrated by his wives or any person who at the point in time was in the house. The fact that al-Ḍaḥḥāk b Sufyān had had to draw the attention of the second caliph to the entitlement of a widow to the diyah of her deceased husband underscores the limits of their knowledge over events that happened in their absence.129 It also shows that not all their decisions were supported by divine sources. Consequently, in the absence of anybody who was privy to the pronouncement of the Prophet such decision remains unchallenged. By implication, cases that rarely occur, like the unintentional homicide involving members of opposite sex, might have been decided in the presence of few companions none of whom was aware of a contrary ḥadīth. Hence, no objection was raised and no opportunity arose where a case with similar facts came up in the presence of yet another set of companions who happened to be aware of the prophetic ruling. The influence of default pre-Islamic Arabian culture may be another reason responsible for the absence of objection from other companions. The case of the widow under review was previously decided by ʿUmar based on the pre-Islamic Arabian practice. Under this practice, diyah was the entitlement of male members of one’s solidarity group (ʿaṣabah) to the exclusion of the female members of the deceased’s clan. The Prophet abolished this practice via an epistle sent to Ḍaḥḥāk b Sufyān, in which he instructed Ḍaḥḥāk to allow the wife of Ashyam al-Dibābi to inherit the diyah of her deceased husband.130 Similarly, when another case pertaining to a claim of diyah for loss of thumb was brought before Caliph ʿUmar (RA), he used his analogy based on the utility 128 

ibid, at 187. Al-Shāfiʿi, Al- Risālah fi Usūl al-Fiqh (Treatise on the Foundation of Islamic Jurisprudence) (trans M Khadduri) 2nd edn (Cambridge, The Islamic Texts Society, 1987) at 263. 130 ibid. 129  MI

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value of fingers. Given that fingers are of different sizes and utility, ʿUmar allotted 15 camels for loss of a thumb. This remained the position of the law until probably the last quarter of first century AH, when it was discovered in the Prophet’s epistle to ʿAmr b Ḥazm that, ‘for every finger [the compensation] shall be ten c­ amels’.131 Apparently, when ʿUmar gave that ruling he was not aware of the Prophet’s ruling and none of the companions who knew about it was around to draw his attention to it. It is also reported that in matters of opinion, some companions used to allow ʿUmar b Khattab to have the day even though they had reservations. For instance, when an unusually isolated case of inheritance was brought before ʿUmar, he took a position against the view of ʿAbdullāh b ʿAbbās, but the latter kept mute and did not object, only to air his view after the death of ʿUmar b Khattāb. When he was asked why he did not make public his view on the matter he simply answered that, ‘I am afraid of him, because of his personality’.132 It was a case of over-subscription (awl) in which no precedent was available to place a decision. A woman died and left behind her husband and two full sisters. Under the Islamic rules of inheritance the husband was entitled to one half and the full sisters were entitled to two thirds of the estate. This means that their entitlement was more than unity because ½ + 2/3 = 7/6.This is a clear case of over-subscription, as if either party is allowed to take his allotted share the other party will be short-changed. To illustrate the scenario, supposing the deceased wife left £600. The husband would be entitled to one half of £600 = £300, and the two full sisters would get two thirds of £600 = £400. Therefore, the amount they inherit could not be shared as per their respective allotments. It was suggested to ʿUmar to apply the bankruptcy rule and share the estate proportionately. One of the companions said that if a person dies and is indebted to two people, one claiming three darāhim and the other four darāhim but he only left six darāhim, then each should be paid from the estate an amount proportionate to his claim. ʿUmar accepted this opinion and applied it thereby reducing the respective shares of the heirs from three sixths to three sevenths for the husband and from four sixths to four sevenths for the two full sisters, such that they respectively get £257.2 and £342.8. It was only after the death of ʿUmar that ʿAbdullāhi b ʿAbbās made his point that the decision of ʿUmar was flawed because it means the minimum entitlement expressly prescribed for the husband in the Qur’an has been reduced. To him, heirs like mother, grandmother, husband, wife and uterine sisters are aṣḥāb al-farā’iḍ each of whose entitlement is clearly stated in the Qur’an and is the minimum that each must get. To reduce it further, as done in this case, is to go against the necessary intendment of God. As for full sisters, consanguine sisters, daughters and daughter of son, their entitlement is not guaranteed as they can, depending on

131 ibid.

132  AM Gurin, An Introduction to Islamic Law of Succession (Testate and Intestate), 2nd edn (Lagos, Malthouse Law Books, 2015) at 112.

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the circumstances, either be aṣḥāb al-farā’iḍ or residuary (ʿaṣabah).133 Therefore, in cases of over-subscription, these categories of people should simply inherit as residuary. In other words, in the case at hand, the husband inherits as Qur’anic heir and get his half of £600 = £300 and the two full sisters take the reminder, ie £300, thus inheriting as residuary heirs. What this point suggests is that rulings of ʿUmar on many issues acquired the status of ijmaʿ and remained the established norm since no companion contested it. It also suggests that even during Shāfiʿi’s era, it was not until when they confirmed the authenticity of ʿAmr b Ḥazm’s epistle that they stopped applying the decision of ʿUmar in favour of the pronouncement of the Prophet. On this point, Shāfiʿi made the following remarks: First, a narrative [from the Prophet] must be accepted. Secondly, the narrative is to be accepted when it is confirmed, even though none of the Imāms may ever have done anything similar to the narrative in question. … if the actions of one of the Imāms subsequently were found to be contrary to a narrative of the Prophet, the Imām’s action must be abandoned in favour of the Apostle’s narrative.134

The comments of Shāfiʿi is clear testimony that it is common to find at a later date that the position held by a companion or a scholar was flawed and it is usual to deviate from it, once it is discovered that it goes against the position of the Prophet. Therefore, the only possible basis upon which the half diyah stipulation was established is a cross-contextual analogy of unrelated matters/fields as addressed in the previous chapter.

IX. Conclusion In the foregoing, the chapter undertook a thorough review of the conflicting authorities that gave rise to gendered juristic formulations in diyah. It identified the Qur’anic provisions on the subject matter under review on the one hand, and the aḥādīth of the Prophet, on the other hand. What emerged from the review is that classical jurists favoured the conciliation method over the elimination and abrogation methods thereby allowing the use of both authorities as circumstances warrant. This made it easy to maintain both rulings thereby making the disparity in diyah across genders as a universal ruling accommodating no change. This approach perpetuated the pre-existing pre-Islamic Arab default culture which gave prominence to male over female. However, in this chapter, I have used elimination and abrogation methods to demonstrate that Islam, as a social system, revolutionised the default Arabian culture through gradual replacement and abrogation.

133 ibid.

134 Al-Shāfiʿi,

Al- Risālah fi Usūl al-Fiqh (n 133) at 262.

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In the end, the chapter concluded that even the much-touted juridical consensus (ijmāʿ) which conveniently silenced any opposing voice, irrespective of its plausibility, could not stand the litmus test of credibility. It found that the juristic formulation could, at best, be supported by individual opinions of some companions and even then, none of the narrations was sound. The only possible basis was cross-contextual analogy, which in itself was lopsided as principles relevant in civil matters like the Islamic law of inheritance and law of commercial transactions were transposed into matters of criminality, like homicide. Hence, the only logical conclusion one can make is that there is no disparity in diyah across genders for intentional or unintentional homicide and bodily injuries.

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Part II

Case Studies Contemporary Application of Islamic Legal Principles on Homicide and Bodily Injuries in the Muslim World This part explores the practical application of Islamic principles on homicide and bodily injuries and its effect across genders in the Muslim jurisdictions of Nigeria and Pakistan with a view to ascertaining the extent to which they conform or deviate from the principles as prescribed by the classical Islamic jurists. This is mostly to be found in modern legislation passed by legislative houses. The argument sought to be made is that there has been palpable tension between the new principles introduced by Islam and the ingrained cultural prejudices in many societies. Just as in the early years of Islam when resistance to the new order was clearly evident in gender relations, even today the story appears to be the same. The legislature may be persuaded by the constitutional restrictions to enact seemingly genderneutral legislation, but this may not translate to reality in practice. The exploration will reveal the reluctance to yield to the new order often comes through judicial interpretation, which is mostly influenced by the perspectives of their societies towards genders. Therefore, it is usual for formal legislation to prescribe equality, yet in giving it the force of law, judges may sneak in cultural baggage. As shall be demonstrated in this part the long interaction with the colonialist’s culture has influenced the attitude of English-trained judges into treating honour crimes with kid gloves, and this has negatively affected women, particularly in Pakistan. Ordinarily, the exploration would have been more enriching if it considered four Muslim states with entrenched Islamic criminal law regime to represent the four main Sunni schools of thought. But, Nigeria and Pakistan are considered on the basis of the fact that they represent the two most formidable Sunni schools of Ḥanafi and Māliki. Indeed, they represent two extremes, ie rationalist and ­traditionalist respectively. Other Sunni schools will not be considered as states applying them are difficult to come by; and where they are found they have very strange legal framework. For instance, Saudi Arabia is a Sunni state adhering to the Ḥanbali School, yet it has no codified Islamic criminal code. This means that judges resort to classical text of Ḥanbali School without more, thus giving considerable discretion to choose any interpretation that suits them. An attempt was

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made in 2005 to come up with a uniform criminal code but to date nothing has been forthcoming.1 The choice of Pakistan and Nigeria is necessitated by many factors such as their common colonial legacy, and each is party to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).2 This part has four chapters, two for each state. It is organised in such a way that the formal legislation is discussed in separate chapters and then judicial interpretations are separately discussed. Chapters 7 and 8 deal with the case study of ­Pakistan, while Nigeria’s experience is contained in chapters 9 and 10. The importance of these case studies is to find ways by which either of these states can learn from the other. It also affords an opportunity to avoid problems faced by either in the course of its struggle for the implementation of the law.

1  SM Al-Subaie, ‘The Right to Fair Trial under Saudi Law of Criminal Procedure: A Human Rights Critique’ (thesis submitted to Brunel University, London, for award of PhD in Law, 2013). 2  Ratified by Nigeria on 13 June 1985, and Pakistan on 12 March 1996. http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en.

7 Case Study of Pakistan I. Introduction This chapter explores the extent to which the classical fiqh discourse on homicide and bodily injury and gender, discussed in Part I, has influenced the contemporary criminal regime of Pakistan. It specifically discusses the evolution of the qiṣāṣ and diyah provisions, their subsequent incorporation into the Pakistani Penal Code and the questions of gender justice they pose. It also demonstrates the significance of involving stakeholders in addressing gender issues. To appreciate the discussion it is necessary to give some background information of the socio-political climate under which the provisions emerged. The author is aware of the political intrigues and manoeuvrings that embroiled the enactment of the original Ordinance but this is outside the scope of this book.3

II.  Overview of Pakistan’s Constitutional and Legal Development The Islamic Republic of Pakistan was a British colony that emerged as an independent sovereign nation after the 1947 Partition via the Indian Independence Act, 1947, which ended the British colonial rule.4 It is a federal constitutional government consisting of four provinces, viz: Punjab, Sindh, Khyber Pakhtunkhwa (formally known as North West Frontier Province), Balochistan,5 a capital

3  For more on this, see E Gottesman, ‘The Reemergence of Qisas and Diyah in Pakistan’ (1992) 23 Columbia Human Rights Law Review 432–61; CH Kennedy, ‘Islamic Legal Reform and the Status of Women in Pakistan’ (1991) 2(1) Journal of Islamic Studies 45–55 http://jis.oxfordjournals.org/cgi/ reprint/2/1/45.pdf; NA Shah, Women, the Koran and International Human Rights Law: The Experience of Pakistan (Leiden/Boston, Martinus Nijhoff Publishers, 2006); T Wasti, The Application of Islamic Criminal Law in Pakistan (London, Brill, 2009). 4 See Indian Independence Act, 1947, Office of Public Section Information, United Kingdom ­available at www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1947/cukpga_19470030_en_1. 5  The Constitution (Eighteenth Amendment) Act, 2010, signed into law by President Zardari on 19 April 2010, has made some slight changes in the names of some provinces such as Baluchistan (now Balochistan), Sind (now Sindh) and North West Frontier Province (now Kyber ­Pakhtunkhwa).

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territory in Islamabad and a territory constituting the Federally Administered Tribal Areas (FATA).6 Pakistan has a long history dating back several centuries and had passed through the regimes of Hindu rule, Muslim rule and the British colonial administration.7 The modern history of Pakistan, however, started after the ­Partition. It is the sixth most populous nation in the world with an estimated population of 201,995,540 (July 2016 estimate) with Muslims forming (official) 96.4 per cent (Sunni 85–90 per cent, Shia 10–15 per cent) of the population while others (including Christians and Hindus) form 3.6 per cent.8 Politically, Pakistan declares Islam as its state religion.9 It runs a parliamentary system comprising the President, the Senate and the National Assembly ­(collectively called Majlis-e-Shoora).10 The Senate has 104 members out of which 17 seats are reserved for women.11 Women have another reservation of 60 seats in the National Assembly out of the 332 seats.12 Similarly, in each of the Provincial Assemblies, women have some earmarked seats as follows: Balochistan, 11; ­Punjab, 66; Sindh, 29 and Khyber Pakhtunkhwa, 22.13 The vision of the founding fathers of modern Pakistan led by Muḥammad Ali Jinnah and Muḥammad Iqbal was to ensure the pre-eminence of Islam as the building block of Pakistan, among other things. This is apparent from the words of Ali Jannah thus: We will be able to train and bring up Muslim intellectuals, educationists, economists, scientists, doctors, engineers, technicians, etc., who will work to bring about the Islamic renaissance.14

Little wonder that Islam has acquired an enviable position in the legal and constitutional development of the country. For instance, the Constitution disallows the making of any law that is repugnant to the injunctions of Islam.15 ­Similarly, another major principle envisioned was equality before the law and this is now reflected in the Constitution. It is a nation built on equality and nondiscrimination on whatever basis.16 In line with this, the country ratified the

There is now strong agitation to merge the Federally Administered Territorial Areas with Kyber Pakhtunkhwa as Provincial Administered Territorial Areas (PATA), as demanded by some political parties in 2016 https://tribune.com.pk/story/992915/constitutional-amendment-rally-demands-govtto-turn-fata-into-pata/. 6  United States Central Intelligence Agency, (CIA) Factbook www.cia.gov/library/publications/ the-world-factbook/geos/pk.html. 7  F Hussain, ‘The Judicial System of Pakistan’ available at www.supremecourt.gov.pk/web/user_ files/File/thejudicialsystemofPakistan.pdf. 8  CIA Factbook (n 4). 9  Constitution of Pakistan, 1973, art 2 www.pakistani.org/pakistan/constitution/part1.html. 10  ibid, art 50. 11  ibid, art 59(1). 12  ibid, art 51(3). 13  ibid, art 106(1). 14 Shah, Women, the Koran and International Human Rights Law (n 1). 15  Constitution of Pakistan, 1973, art 227. 16  ibid, arts 2A and 25.

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Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) on 12 March 1996, thus bringing it to the attention of the international community.17 As for the judiciary, the Supreme Court is at the apex and is vested with original, appellate and advisory jurisdictions.18 All other courts are bound by its decision.19 All four provinces and the capital territory have their independent High Courts. Additionally, there are various cadres of subordinate courts and administrative tribunals as shown in Figure 7.1. Supreme Court of Pakistan

High Court

District/Sessions Court

Federal Shariat Court

District/Sessions Court (criminal cases under Hudood laws)

Civil/Judicial Magistrates Court

Figure 7.1:  Structure of Courts in Pakistan

Constitutionally, the Shariat Appellate Bench is established under the Supreme Court to entertain appeals from the Federal Shariat Court.20 Initially, the ­Shariat Benches, as precursor to the Federal Shariat Court, were established in all High Courts for Islamisation of laws in 1979. The Federal Shariat Court, created in 1980 as part of the Islamisation policy of General Zia ul-Haq, is empowered under the Constitution, inter alia, to entertain appeals in matters involving hudood cases. It also has the mandate of ascertaining whether a given law or a provision of any law is repugnant to the injunctions of Islam.21 This means that the Federal

17  See Status of Ratification of International Human Rights Treaties http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en. 18  Constitution of Pakistan, 1973, arts 184, 185 and 186. 19  ibid, art 189. 20  ibid, art 203F. 21  For controversy surrounding the scope and meaning of ‘injunctions of Islam’, see SA Cheema ‘The Federal Shariat Court’s Role to Determine the Scope of “Injunctions of Islam” and its Implications’ (2013) 9(2) Journal of Islamic States Practices in International Law 93–111.

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Shariat Court does not have the power to deal with matters under the Qiṣāṣ and Diyah Ordinance. It is usually the Courts of Sessions, and to a limited extent the ­Magistrates Court of First Class, that have original jurisdiction while appellate jurisdiction in that respect falls on the High Court. The Islamisation of homicide law led to the creation of the Federal Shariat Court which has enormous powers to the extent that it can exercise jurisdiction suo motu without any invocation by any party.22 Indeed the Constitution has watered down the doctrine of locus standi as known at common law, such that a person need not show special circumstances before he can approach the Court in matters relating to the repugnancy test as enshrined in the Pakistan Constitution.23 Added to the above is the Federal ­Shariat Court’s revisional jurisdiction over hudood cases. The Court is empowered to ascertain the propriety of decisions or judgments of ‘any criminal court’ dealing with hudood matters.24 However, in its original jurisdiction, High Courts and other subordinate courts are bound by its decision made in exercise of its original jurisdiction.25 In line with the Islamisation policy, many ordinances were promulgated which include Zina Ordinance, Qanoon-e-Shahadat Order, Qisas and Diyat Ordinance. The last-mentioned ordinance was subsequently incorporated into the Pakistan Penal Code (PPC), while the other laws remain independent laws and thus applicable. The gender implications of the aforementioned ordinances are enormous, as they generated protests from many quarters, but only issues emanating from the provisions on qisas and diyat in the PPC are the focus of this book.

III.  Evolution of the Qi·sā·s and Diyat Ordinance The Pakistan Penal Code (Act XLV of 1860) was part of the legacy of British colonial rule, and was originally the Indian Penal Code, 1860 drafted by Lord Macaulay for the government of British India, and later bequeathed to Pakistan after the Partition of 1947. One of the major steps taken by General Zia ul Haq after the sacking of the Zulfiqar Ali Bhutto’s government was the Islamisation of laws, particularly those pertaining to criminal justice. The government of Zia ul-Haq started a systematic overhaul of the secular-based penal code, through series of amendments in line with the changing political climate. This move was considered the second wave of Islamisation of laws after the 1960s process, which saw the emergence of Muslim Family Laws Ordinance of 1961 in the post-independence period.26

22 

Constitution of Pakistan, 1973, art 203D(1). ibid, art 203 D. 24  ibid, arts 203DD and 203 GG. 25  ibid, art 203 GG. 26  SA Raja, ‘Islamisation of Laws in Pakistan’ (2003) 2 South Asian Journal www.southasianmedia. net/Magazine/Journal/islamisation_laws.htm. 23 

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It also marked the resuscitation of Islamic criminal law that fell into disuse some 200 years ago.27 The decision of the Shariat Bench of the Peshawar High Court in the case of Gul Hassan Khan v The Government of Pakistan28 triggered the move to Islamise the criminal justice regime dealing with offences affecting the human body. Before the creation of the Federal Shariat Court, the Shariat Bench of the High Court was empowered, inter alia, to strike out any existing law that was repugnant to the injunctions of Islam.29 In the exercise of this mandate, the Shariat Bench of the High Court of Peshawar delivered a ground-breaking judgment in the legal development of Pakistan. In the judgment, it declared some provisions of the Pakistan Penal Code (PPC) relating to culpable homicide as repugnant to Islam.30 In that case, Gul Hassan Khan filed a petition applying to the Court to declare the provisions of the Pakistan Penal Code relating to homicide as repugnant to Islamic injunctions. The gist of the case was that the trial court had convicted and sentenced the petitioner to death for murder under the Code, even though he had reached a compromise with the heirs of the deceased who had pardoned him. Specifically, the petition identified as unconstitutional sections 302 of the Code (PPC), and sections 345(7), 401, 402, 402-A and 402-B of the Criminal Procedure Code (CrPC), for failing to meet the repugnancy test.31 The Court agreed with the petitioner and accordingly declared that section 302 of the PPC was not in accord with the injunctions of Islam. Under Islamic law, offences of homicide ‘could be condoned by pardon on payment of diyah and particularly, a non-pubert could not be subjected to qiṣāṣ’. It further declared as unconstitutional the above sections of the CrPC on the same ground of inconsistency, holding that neither federal nor provincial government ‘can remit, reduce or commute any sentence. Powers in such respect are exercisable only by a court in accordance with the injunctions of Islam’. Finally, the Court declared that taʿazīr punishment in the form of imprisonment or death sentence could be awarded in cases of intentional homicide, even if heirs of the deceased have pardoned or received diyah.32 As per the constitutional arrangement of the country, the government must act on such declaration by amending the offending provisions.33 In addition to filing an appeal against the above decision for preventing its implementation and reconsideration, the government sought the advice of the Council of Islamic Ideology, a body charged with the responsibility of recommending on conformity or otherwise of a given law to sharīʿah.34 27 

Gottesman, ‘The Reemergence of Qisas and Diyah in Pakistan’ (n 1) at 432. Gul Hassan v The Government of Pakistan and Another (1980) PLD 1 Pesh. 29  Shah (n 1) at 99. 30 See Report of the Committee of the Pakistan Law Commission on Offences against Human Body (Enforcement of Qisas and Diyah) Ordinance 1984 www.ljcp.gov.pk/Menu%20Items/Publications/ Reports%20of%20the%20LJCP/reports/report10.htm 31  Gul Hassan case (n 26). 32 ibid. 33  Constitution of Pakistan, art 203D(3). 34  ibid, art 204. 28 

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IV.  Role of the Council of Islamic Ideology The Council played a pivotal role in drafting the ordinance called ‘Offences against Human Body (Enforcement of Qiṣāṣ and Diyat) Ordinance’, particularly under the chairmanship of Retired Justice Afzal Cheema when the first draft was prepared on 13 December 1980.35 Given the leaning of Justice Cheema to the Ḥanafi School of thought, he premised the draft on classical Ḥanafi law.36 It is difficult to come by the first officially gazetted copy of the draft, but Tahir Wasṭi has attached a copy of it to his book.37 One example of the Ḥanafi teaching as codified under section 25 of the draft ordinance reads: 25. (1) The court shall, keeping in view the financial position of the convict, ʿāqilah and the heirs of the victim, fix the value of diyah in accordance with one of the following scales, namely: (i) Ten Thousand dirham sharʿi equivalent to 30.63 kilograms of silver or its value in money, or (ii) Ten Thousand dirham sharʿi equivalent to 4.36 kilo grams of gold or its value in money. (2) Where the victim is female, her diyah shall be one-half of the scale specified in ­subsection (1).38

The Cheema draft also placed the burden of paying compensation on either the victim or his ʿāqilah,39 in apparent contrast to the draft made later under the chairmanship of Retired Justice Tanzilur Rahman, which had a more contemporary flavour.40 The second draft, among other things, took into account the fact that in modern criminal regimes, responsibility for an offence lies with the alleged offender and not a third party. From that perspective, an offender is responsible alone, and his ʿāqilah were relieved of the obligation to pay compensation. At any rate, the President did not sign Cheema’s draft ordinance, perhaps owing to the protests and consternation it generated,41 even though the government printer had officially published it.42 The drafting of the Qiṣāṣ and Diyat Ordinance coincided with other events such as the enactment of Qanoon-e-Shahadat Order and the establishment of the Ansari Commission, which, inter alia, recommended the disqualification

35 

Kennedy, ‘Islamic Legal Reform and the Status of Women in Pakistan’ (n 1) at 51. Weiss, ‘Women’s Position in Pakistan: Sociocultural Effects of Islamization’ (1985) 25(8) Asian Survey 863–80. 37 Wasti, The Application of Islamic Criminal Law in Pakistan (n 1) at 300. 38  ibid, at 310. 39  Section 2(d) of the first Qisas and Diyat Ordinance, 1980. 40  Wasti (n 1) at 100. 41  Weiss, Women’s Position in Pakistan’ (n 34) at 893. 42  See Kennedy (n 1); in fn 27 the author indicates that the draft was published in the Gazette of Pakistan Extraordinary (13 December 1980). 36  AM

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of women from heading the state.43 Many women’s organisations such as All-­ Pakistan Women’s Association, Women’s Action Forum, mostly composed of professional and educated women, sprang up to challenge these laws and such proposals. According to Anita M Weiss: The above three sets of proposals—The Law of Evidence, the Qiṣāṣ and Diyat Ordinance and that of the Ansari Commission—all met with substantial resistance from educated women throughout Pakistan. Cries of discrimination against women were raised as concern mounted that women were officially being relegated to second class status.44

Indeed, many public and private bodies had contributed to Cheema’s draft ordinance. In particular, the furore raised by these events necessitated the government to mandate the Women’s Division, Research Wing of the Secretariat of the ­Government of Pakistan to collate opinions of women across the country on Cheema’s draft ordinance. Some important clauses in the draft, viz: sections 10(b), 15 and 25(2), were specifically identified as inimical to women’s interest.45 The report produced after the exercise on 25 February 1981 argued from both religious and secular perspectives in canvassing for the amendment of the draft. For instance, on section 10(b), which required the evidence of only two male witnesses in murder cases, the Women’s Division viewed it as contrary to the principle of equality enshrined under Article 25 of the Pakistan Constitution, which abhors discrimination on ground of sex, among other factors.46 The fact that the draft did not consider women as capable of compounding murder cases caused the Women’s Division to insist on adding mothers, grandmothers and sisters in line with the principle of non-discrimination.47 Another important innovation in Cheema’s draft is the idea of badl-al-ṣulḥ (compounding of qiṣāṣ) in return for consideration. Apparently, the Women’s Division did not foresee the likely dangers the idea portended, in view of the wide definition provided under the draft ordinance when it suggested some amendments to the draft in support of it.48 As shall be discussed later, badl-al-ṣulḥ became a tool for commodifying and objectifying women, as it was seriously abused to the detriment of women. One area that elicited much anxiety is the stipulated diyah of woman under section 25(2) of Cheema’s draft as quoted above as half that of man. This the Women’s Division found unacceptable, arguing that there was no justification for allotting higher diyah for men since the draft ordinance did not fix punishment for women in similar proportion. In other words, the Women’s Division argued

43 ibid. 44 ibid. 45 

Wasti (n 1) at 126.

46 ibid. 47 

ibid, at 127. the explanatory note to s 15 the term badl-e-sulh was defined to mean ‘the mutually agreed compensation according to Sharīʿah, to be paid by the convict to a wali in cash, kind, or in the shape of movable or immovable property or any right’; see Wasti (n 1) at 307. 48  In

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that men should have got higher penalties under the draft ordinance but this was not the case, as the penalties were equal across genders. The Women’s Division further argued that women have come of age having regard to their educational attainment, which the government had helped to nurture and sustain, thus making them also valuable to the society. The Women’s Division posited that inasmuch as the draft did not reduce the diyah of the economically non-productive elements among men, the fact that women were less productive was no reason to warrant the devaluation of their worth. It was also their contention that such discriminatory tendencies have the potential of making women more vulnerable to attack. Finally, it would adversely affect the heirs of a female deceased who would be the beneficiaries of the diyah proceeds.49 To give legitimacy to some of the actions taken by Zia’s government, Zia al-Haq constituted a Majlis al Shūrā (Federal Council) in 1981 and the draft ordinance on qiṣāṣ and diyah was tabled before it in January 1982. The draft underwent a series of examinations and heated debates before its passage in July 1984, albeit without the vote of any female member, but the contribution of women members during the deliberations had facilitated the subsequent review of the law. Just like the Women’s Division, individual members of the Council like Begum Razia ­Aziz-u-din, Begum Nasim A Majid, Salam Tassaduq Hussain and Begum Qamar Isphahani were very forthcoming in their critique of the draft.50 The Women’s Division had covered most of the reasons they gave, as highlighted above; as such, it would be tautologous to reproduce them here. Suffice however to state that, women on the Federal Council were not parties to the passage of the Bill, as they staged a walkout in protest against what they believed was prejudicial to women.51 Notwithstanding this protest, the Federal Council forwarded the Bill to the ­President for promulgation but the latter took no action to give it legal force.52 Meanwhile, there were 11 petitions before the Shariat Appellate Bench of the Supreme Court on the same subject awaiting its ruling.53 When the Ordinance was re-drafted in 1984, the halving of women’s diyah was removed.54 It is, however, difficult to ascertain the reason given that it is at variance with the classical Ḥanafi thought. It is possible the government viewed the critique of the women’s organisations as more convincing so that it yielded to their concern. It may also be viewed from the perspective of the universal values entrenched in the Pakistan Constitution, as something championed by the founding fathers of the country. A combination of these factors, namely, internal pressure and fear of affronting

49 

Wasti (n 1) at 126–28. ibid, at 148–52. 51  ibid, at 157. 52  ibid; see also Weiss (n 34) at 893. 53  MH Cheema, ‘Judicial Patronage of ‘Honour Killings’ in Pakistan: The Supreme Court’s Persistent Adherence to the Doctrine of Grave and Sudden Provocation’ (2008) 14 Buffalo Human Rights Law Review 51 note 16 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1536258. 54  Weiss (n 34) at 872; Gottesman (n 1) at 437, note 13. 50 

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the equality norm entrenched in the Constitution appear to be the cause. This further shows that context can influence human interpretation of the divine. If not, how could the government reverse its earlier decision, which is in tandem, in all material particulars, with the avowed position of the Ḥanafi School of thought, which the pre-dominant percentage of the population follows? In addition to this, there is nothing to suggest that the deviation was made after a thorough analysis of the position of Islamic law on that matter. Howsoever one looks at the development, one thing worth noting is the impact of participative politics in the whole exercise. The modern politics allows greater openness to all and sundry to give input in policy formulations on the basis of constitutional equality. At least, participation of women in issues affecting their status and well-being is well-documented in Islamic literature like the case of the woman who challenged Caliph ʿUmar b Khaṭṭāb for attempting to reduce the quantum of ṣadāq. Her perspective changed the situation for the better. It is natural that people affected by a certain policy will be more likely to give better input if involved. The following episode will further strengthen our point. It was an encounter between Abū Jaʿafar Muḥammad b Ali Al Bāqir (114 AH/ 723 AD) the fifth Shiite Imam, and a Madinite woman named Zaynab bint Muʿayqib that happened at a funeral of some prominent people. Abū Jaʿafar could not get to the coffins because many women including Zaynab blocked his way which made it difficult for him to pass through. At that moment, Abū Jaʿafar began to snap his cloak at them saying, ‘Enough, you companions of Yusuf!’ Obviously, this statement portrayed women in a bad light given what transpired between the Prophet Yusuf and the wife of his master.55 Therefore Zaynab was outraged by the statement but yet garnered the courage to answer him this way, ‘O son of the Messenger of God, you are correct that we are the companions of Yusuf—and we treated him better than you!’ Abū Jaʿafar was amazed and wanted to know what Zaynab meant by that statement. After the funeral, he sent for Zaynab and demanded an explanation, and she answered thus: (We) women are better than (you) men. (We) women, O son of the Messenger of God, invited (Yusuf) to the delights of food and drink, and to enjoy and be comfortable. But you men threw him in the well, sold him for a miserable price and locked him in prison—so which of us was more tender and kind to him?56

It is amazing how a positive thing could emerge from an entirely bad situation. The fact that the women who were the culprits in the case of Yusuf were allowed to make their own point has brought a totally different perspective portraying themselves in positive light and men in the negative. Participation of women has no doubt given the Federal Council new perspectives and that made them rethink a number of juristic formulations prejudicial to women. That being the case, the

55 Q12:4-111.

56  I Mattson, The Story of the Qurʾān: Its History and Place in Muslim Life (Oxford, Blackwell ­Publishing, 2007) at 226–27.

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participation of all segments of society, including women, is indispensable in modern policy formulation and knowledge production.

V.  Impact of Gul Hassan’s Case In 1989, the Shariat Appellate Bench of the Supreme Court delivered the muchawaited judgment in the consolidated case of Federation of Pakistan v Gul Hassan.57 In this judgment, the Supreme Court affirmed the ruling of the Shariat Bench of Peshawar High Court that the said provisions of the Pakistan Penal Code (PPC) and Pakistan Criminal Procedure Code (PCrPC) did not pass the repugnancy test as provided under Article 203D of the Constitution of Pakistan, 1973. Generally, the Supreme Court noted the following as the major flaws in the Codes and demanded their amendment: 1. Provisions of the PPC did not provide for qiṣāṣ (retribution) in cases of qatl al-ʿamd (deliberate murder) and jurūḥ-al-ʿamd (deliberately causing hurt) as is prescribed in the Holy Qurʾān and Sunnah. 2. They did not make provision for diyah (monetary compensation) in cases of shubh al-ʿamd and khatʾ of both qatl (murder) and jurḥ (hurt) as prescribed in the Holy Qurʾān and Sunnah. 3. There was no room provided for compromise between parties on agreed compensation when they make ṣulḥ (compromise) in cases of qatl or jurḥ. 4. The law did not give allowance for the offender to be pardoned by victim in cases of jurḥ and by heirs of the victim in cases of qatl whereby the court can only award him a sentence of imprisonment by way of taʿazīr, which may not extend to imprisonment for life. 5. The law did not exempt children (non-pubert) or insane offenders from the death penalty. 6. The law did not define the different kinds of murder and hurt along with their respective punishments as prescribed in the Holy Qurʾān and Sunnah.58 In line with its constitutional mandate, the Supreme Court, via its Shariat Appellate Bench, fixed 23 March 1990 as the date when its judgment would come into force and the erstwhile provisions of the PPC and CrPC would cease to have effect.59 Thus, the interim government of Ghulam Mustafa Jatoi issued the ­Criminal Law Amendment Ordinance as per the directives of the Court.60

57 

Federation of Pakistan v Gul Hassan (1989) PLD 633.

58 ibid. 59 ibid. 60 

Wasti (n 1) at 160.

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Two review petitions were filed before the Supreme Court in Attorney General Pakistan and Anor v NWPF Government and Others61 requesting the Court to extend the commencement date and the Court granted these prayers. Now, 5 ­September 1990 became the effective date that the Qiṣāṣ and Diyah Ordinance would come into force. The government took that action probably to allow the newly constituted Parliament to deliberate on the Ordinance. But it remained as an ordinance continuously being promulgated by the President until 1997 when it was finally incorporated into the Pakistan Penal Code via The Criminal Law (Second Amendment) Ordinance No VII of 1990.62 Since then the qiṣāṣ and diyat provisions have undergone a series of amendments, the latest being the Pakistan Penal Code (Amendment) Act, 2017 which reviewed upwards the penalty for false litigation or false registering of a First Information Report.63

VI.  Overview of Qi·sā·s and Diyah Provisions The provisions of the Qiṣāṣ and Diyat Ordinance have been incorporated into the PPC via Criminal Law (Amendment) Act, 1997 (II of 1997) under Part XVI (offences affecting the human body). The part contains about 40 sections (sections 299–337H) including amendments made later under the Criminal Law (Amendment) Act, 2004 (1 of 2005). The major turning point of the new paradigm is a shift from ‘criminal justice’ to ‘victim justice’ meaning that it prioritises victims’ rights over the state in crime control and punishment.64 The 1989 judgment specifically declared the tender of pardon to an offender by the state under sections 337–339 of the PCrPC as unconstitutional. Similarly, the non-inclusion of some offences against the human body among compoundable offences, in favour of the victim or his/her heirs in section 345 of the same procedure code, prompted the Court to declare the said section repugnant to the injunctions of Islam. It is noteworthy that the 2014 pardon of Shahrukh Jatoi and Mustapha Kanju by the relatives of the deceased gave rise to media interest, and that triggered the Pakistani authority to propose further amendment to the PPC to ensure that the Court is empowered to look into the circumstances of each case and accordingly award taʿazīr irrespective of the pardon.65

61 

Attorney General Pakistan and Anor v NWPF Government and Others (1990) PLD 1172 SCC. National Commission on the Status of Women, Qisas and Diyat Report (16 July 2008) file:///C:/ Users/User/Downloads/Report_Qisas_Diyat%20(1).pdf. 63  National Assembly of Pakistan www.lawsofpakistan.com/wp-content/uploads/2017/04/criminallaw-amendemnt-2017.pdf. 64  Gottesman (n 1) at 446. 65  The Express Tribune, ‘Key Changes in Qisas, Diya Law Proposed’ (18 November 2015) https:// tribune.com.pk/story/993558/key-changes-in-qisas-diyat-law-proposed/. 62 

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A new section 311 has been enacted which reads: the court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term of which may extend to 14 years as Tazir.66

A.  Gender Neutrality in Classification of Murder Offences As against the classification of murder into two under the old Penal Code, viz: culpable homicide amounting to murder and culpable homicide not amounting to murder, the provisions create new classification in line with the prescriptions of sharīʿah as follows: 1. Qatl-al-ʿamd (intentional murder) refers to a situation where, with intent to cause death or bodily injury, a person does an unlawful act against another, which in the ordinary course of nature is likely or probable to cause death and it did occur as a result. In such circumstances, the act is punishable with death in form of qiṣāṣ or taʿazīr.67 2. Qatl shubh- al-ʿamd (semi-intentional murder) refers to a situation where a person intended to cause harm to body or mind, causes the death of another by doing an act, which in the ordinary course of nature is not likely to cause death. This offence attracts payment of diyah and the convict may also be liable to imprisonment to the maximum term of 25 years.68 3. Qatl-al-khatʿa (unintentional murder) refers to where death occurs, either by mistake of fact69 or of act,70 without any intention to cause death or bodily harm. Such act is punishable with payment of diyah and in cases where death results from a rash or negligent act, an additional prison sentence of up to five years is provided as taʿazīr.71 In addition to the diyah, an aggravated punishment of 10 years is provided where the death resulted from rash and negligent driving.72 4. Qatl-bi al-sabab refers to a situation where a person causes the death of another by doing any unlawful act such as digging a pit in a thoroughfare, which act becomes the cause of death of another. This act attracts only the payment of diyah.73 66  The Criminal Law (Amendment) (Offences in the Name or on pretext of Honour) Act, 2016 http://senate.gov.pk/uploads/documents/1485427831_980.pdf. 67  Pakistan Penal Code, ss 300 and 302. 68  ibid, ss 315 and 316. 69  It is a mistake of fact where ‘A’ shoots at an object believing it to be an animal but it turns out to be a human being. 70  It is a mistake of act where ‘A’ aims at an animal but misses it and hits a human being. 71  PPC, s 318 and 319. 72  ibid, s 320. 73  ibid, ss 321 and 322.

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Notwithstanding the above, the PPC provides some exceptions, inter alia, in relation to intentional murder in that it exempts the minor and the insane from being liable to qiṣāṣ (retribution). The law also exempts an ascendant from qiṣāṣ for causing the death of his/her descendant, how low so ever. The ascendant is also not liable to qiṣāṣ where any wali of the slain is his/her direct descendant.74 The fact that the jurisprudential shift prioritises the victim’s rights does not absolutely deprive the state from imposing imprisonment under taʿazīr.75 As for bodily injury, the Code categorises it into five forms as follows: 1. dismemberment of limb or organ (itlāf-al-udw); 2. permanent impairment of function, power or capacity of an organ (itlāf-al-ṣalāḥiyyat-al-udw); 3. hurt on head or face (shajjāh); 4. hurt on other part of the body (jurḥ); and 5. all other kinds of hurt.76 In all these categories there are subclasses of injuries, each carrying a penalty ranging from retribution (qiṣāṣ), payment of compensation specified by the Code (arsh) to be determined by court (ḍamān). In addition, the Code provides some punishment as discretionary (taʿazīr).77 It is noteworthy that in all these categories there is no recourse to the gender of the victim. This is a significant departure from the classical Ḥanafi stipulation, which, as we saw in Part I, privileges limbs of men over those of women as they do not allow retribution between them.

B.  Women can Waive or Compound Qiṣāṣ The PPC defines wali, in a general sense, as ‘heir of the victim according to his personal law’.78 This gives a woman not only the right to seek redress but to forgo her right to retribution by agreeing to collect diyah or completely forgive an accused person.79 Under the law, any ‘adult sane wali’ can exercise these rights, save an accused or person convicted of intentional murder of the victim made in the name of honour.80 This was one of the rights demanded by women during the debate on this Ordinance, as highlighted above. The right of waiver accorded women may seem empowering, but a closer look at it will reveal that it is problematic. This is in the sense that women are more likely to succumb to societal pressures

74 

ibid, s306(a)–(c). ibid, s 311. 76  ibid, s 332. 77  See generally s 337A–Z of the PPC. 78  PPC, s 305(a). 79  ibid, ss 309 and 310. 80  ibid, s 305(a). 75 

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when confronted to agree to a compromise in homicide cases.81 For instance, in Dawar v The State,82 barely six months after her husband was killed, the widow of the deceased, his mother and young children agreed to a compromise before investigation into the case was over, and the compromise was accepted by the High Court. The 2014 case of State v Shahzukh Jatoi appears to be the same in that while the appeal was pending before the Supreme Court against conviction handed down by Sindh High Court, the victim’s legal relatives, comprising his mother and two sisters, pardoned the convicts freely without any recompense.83 The Women’s Division perceived such possibilities earlier and noted that women wanted some family protection in that regard. It therefore recommended that the law should require women to seek permission of male members of the family before exercising the right.84 This recommendation is not reflected in the Ordinance. In practice, courts do not advert to this in homicide cases, as many convicts successfully entered into compromise with widows of victims without a male intermediary. Interestingly, the Supreme Court of Pakistan, in invalidating a contract signed by a woman transferring her property rights to her brother, likened the socio-economic situation of the veiled Pakistani woman, who spends her life within the four walls of her house, to the condition of pre-Islamic Arab woman.85 Therefore, the transfer was declared void, as it might have been done through coercion, given her social constraints. This observation may also be valid for a widow left to fend for herself and children, as in the case of Dawar above, but courts do not seem to look at widows in that light.86 Cases abound where women agree to compromise, raising concerns about the efficacy of the qiṣās and diyat provisions in curbing the menace of unlawful killings.87

VII.  Emerging Gender Issues under the Ordinance This jurisprudential shift brought by the case of Federation of Pakistan v Gul Hassan led to the emergence of many gender issues that largely weigh against women on the justice scale. There will be no discussion on the popular issues of halving of diyah of women as known in classical fiqh, as it was dealt with at

81 

Wasti (n 1) at 199. Dawar v The State (1991) MLD 1864. 83  The Express Tribune, ‘Pakistan Shahzeb Khan murder: Shahrukh Jatoi may walk away from the gallows’ (20 March 2015) https://tribune.com.pk/story/860988/legal-matters-shahrukh-jatoi-maywalk-away-from-the-gallows/. 84  Wasti (n 1) at 127. 85  Ghulam Ali v Mst Ghulam Sarwar Naqvi (1990) PLD 1 SC. 86  Wasti (n 1) at 200. 87 See Muhammad Yaqub v The State (1991) MLD 2408; Parvez v The State (1992) PCrLJ 830; Nisar v The State (1994) PCrLJ 1587; Manzoor Hussain v The State (1994) SCMR 1327; Muhammad Nawaz v The State (1992) PCrLJ 1664. 82 

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the preliminary stage before finally incorporating the Ordinance into the PPC. ­However, this section will address other gender issues contained in the Code that did not feature during that debate.

A.  Parental Relations as Mitigating Factor Section 306 provides: Qatl-i-amd shall not be liable to qiṣāṣ in the following cases, namely: (a) …. (b) when an offender causes the death of his child or grand-child, how low-so-ever; and (c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender.

Ordinarily, the provision of section 306(c) of the PPC should not pose any gender problem given that both parents are protected and are all beneficiaries. However, from the decided cases, as we shall see in chapter 8, the killing of women is more common than the killing of men. Indeed, there was hardly any case where a woman killed her husband because of honour. The prevalence of murder of women on grounds of honour and the judicial leniency shown to perpetrators of such acts by the courts via section 306(c) PPC raises question of justice across genders. The effect of section 306(c) PPC on women, as demonstrated in the case of Pehlewan v The State,88 is that, an accused person can get a mitigated sentence for killing his/her spouse, as long as he/she can establish they have had a child during the subsistence of a valid marriage. In this case, the trial court sentenced the convict to death for killing his wife and the brother of his son-in-law. The convict alleged that he saw them in a compromising position. On appeal, the appellate court reduced the sentence from the death sentence to a term of imprisonment for killing the brother of his son-in-law. The convict was however ordered to pay diyah of Rs 2,84,859 to the legal heirs of Mst Gul Hira (his wife), since under ­section 306(c) of the PPC, intentional murder is not liable to qiṣāṣ ‘where any of the wali of the victim is a direct descendant of the offender’. Similarly, in Muhammad Rafique v The State,89 the Court of Appeal overturned the death sentence passed by the trial court on the appellant, who had conspired with another person and killed his wife. Relying on section 306(c) of the PPC, the Court of Appeal reduced his sentence of death to 14 years’ imprisonment since the wali of the deceased (his wife) was his direct descendant. The implication of this is that qiṣāṣ will never apply to any man for killing his wife as long as he has child(ren) with her. In other words, the victim’s children

88  89 

Pehlewan v the State (2001) PLD 88 Quetta. Muhammad Rafique v The State (1993) PCrLJ 1403.

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have shielded their father from suffering the ultimate penalty, since it is their right to seek qiṣāṣ for the death of their mother. Obviously, this makes women more vulnerable, especially those who have been with their husbands for many years and have born children. After all, even when convicted, the worst that will happen is that he will be asked to pay monetary compensation to the heirs of the victim, who are his own biological children.90 The only way the court can deal with him adequately is when it imposes the death penalty on him by way of taʿazīr punishment under section 302(b) or 302(c) of the PPC.91 The implication of conviction under sections 302(b) and (c) is that the convict cannot benefit from the provision of section 306(b), which exempts parents from qiṣāṣ where the deceased is their descendant, or section 306(c), which exempts a spouse from qiṣāṣ where the wali of the deceased is a descendant of the accused. In Faqirullah v Khalil-uz-Zaman,92 the Supreme Court of Pakistan was called upon to reconsider its earlier decision in Khalil-uz-Zaman v The Supreme ­Appellate Court.93 Khalil-uz-Zaman was earlier convicted and sentenced to death by a Special Court under section 302(b) as taʿazīr for killing his wife. On appeal, the sentence was affirmed by the Supreme Appellate Court established under the Speedy Trial Act, 199294 but it was changed from one of taʿazīr to one of qiṣāṣ under section 302(a) of the PPC. Dissatisfied with this decision, Khalil-uz-Zaman invoked the original jurisdiction of the Supreme Court, which set aside the judgment and remitted the case to the High Court of Lahore for a rehearing of the appeal since the Speedy Trial Act, 1992 had lapsed. In 1998, the Supreme Court revisited this case, set aside the decision of the Supreme Appellate Court, and reaffirmed the decision of the Special Court, which sentenced Khalil-uz-Zaman as taʿazīr, thus de-entitling him from capitalising on having a child with his deceased wife to avoid being sentenced to death. The existence of a child being the wali of the deceased will necessitate dropping qiṣāṣ for a lighter sentence of payment of diyah. This provision was added into the qiṣāṣ and diyat provisions as having been inspired by the dictates of sharīʿah, and has been suggested in Cheema’s draft code. The courts, relying on this principle, simply referred to the provisions of the Penal Code without quoting any textual authority to back up their stance. Neither was any reference made to any classical fiqh jurists as the originator of this view. In endeavouring to ascertain the origin of this provision in the Holy Qurʾān and the hadīth, the researcher has not found any express authority that lends support to this principle. What emerges from the endeavour is that the principle was based on analogical deduction (qiyās). It is an offshoot of the principle under

90 

Shabbir Ahmad v The State (1997) PCrLJ 1920. See eg Sanaullah v The State (1991) PLD 186 FSC. 92  Faqirullah v Khalil-uz-Zaman (1999) SCMR 2203. 93  Khalil-uz-Zaman v The Supreme Appellate Court (1994) SC 885. 94  Speedy Trial Act, 1992 www.ma-law.org.pk/pdflaw/THE%20SPECIAL%20COURTS%20 FOR%20SPEEDY%20TRIALS%20ACT.pdf. 91 

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section 306(b) PPC, which exempts the parent from qiṣāṣ for killing their child, as alluded to earlier. In view of this, it is pertinent to examine the latter provision, as determining its veracity would facilitate our analysis of the former. The rationale behind the juristic formulation of parent-child relationship in this respect is twofold. First, Ḥanafi scholars argue that parents are the source of a child’s existence and well-being on earth. Since parents constitute the root from which sprout the offspring, it will be unreasonable to eliminate the root for the branch. Therefore, if for any reason (intentionally or accidentally) a parent kills his/her child, he/she is not liable to be killed but will only be liable to pay diyah.95 The exemption extends to grandparents n matter how high, just as children include grandchildren, great grandchildren however low.96 Secondly, Ḥanafi scholars argue that this reasoning is supported by the sayings of the Prophet that, ‘a father is not killed for killing his child’; and ‘You and your properties are your father’s belongings’.97 These two sayings of the Prophet create uncertainty as to the nature of ownership rights of parents over their children, since it is not expressly clear what the Prophet meant by the statement, ‘You and your property are your father’s belongings’. Since a person is at liberty to dispose of his belongings in any manner he wishes, does this means killing his child deliberately will not incur any wrath from the authority? On the other hand, many verses of the Holy Qurʾān and the sayings of the Prophet have acknowledged the inviolability of human life.98 Is tolerating such a heinous act not belittling the worth of human life? Scholars holding this view appear to adopt a middle course of requiring from such a parent only payment of diyah. By this, they have accommodated the sanctity of human life ­without undermining the sayings of the Prophet. Two important correlations emerged in this scenario. On the one hand, a child is enjoined the duty of obedience to his parents. For that, it is deemed disobedient for a child to demand qiṣāṣ from his father for killing his mother. On the other hand, there is a general command in Q17:33 that makes human life inviolable, and prohibits anyone from wasting it without a just cause; and parents are not exempted from that commandment. It will be disobedient to God’s command for either parent to kill the other. Arguably, violation of God’s command ought to have been given prominence over disrespect to individuals like parents. Interestingly, the PPC under section 306(b) and (c) does not see it in this light, as it gives a blanket exemption. Scholars of ḥadīth have established the authenticity of this ḥadīth.99 However, the question that arises is: Is it reconcilable with many Qurʾānic verses like 4:93; 95  A Al-Kāsāni, Badāʾiʿ al-Ṣanāʾiʿ fi Tartīb al-Sharāʾiʿ (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) 10 at 243. 96 ibid. 97  AA Ibn Qudāmah, Al-Mughni, vol IX (MR Riḍā ed) (Beirut, Dār al-Kitāb al- ʿArabi, 1983) at 360. 98  See Qurʾān 4:93; 5:32 and 6:151. 99 MI Al-Tirmidhi, Al-Jāmiʿ al-Saḥīḥ Sunan al-Tirmidhi, vol IV (M Shakir et al eds) (Egypt, ­Mustapha Albābī Printing and Publishing Company) at 18, ḥadīth No1400.

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5:32 and 6:151 and prophetic sayings on the inviolability of human life?100 Bear in mind that scholars like Ibn Nāfiʿ, Ibn ʿAbd al-Ḥakam, Imām Mālik and Ibn al-Mundhir have expressed reservation over this ḥadīth. Their opinion appears more inclined to equality of human life irrespective of the pre-eminent position of parent and the duty of obedience imposed on their children. According to these scholars, express provisions of the Qurʾān shows that both parents and children are free persons (ḥurran).101 Thus, the overwhelming opinion of Imām Mālik and some of his disciples is that parents shall be liable to qiṣāṣ for any intentional act which results in the death of their child. Unless it can be established that the death occurred in the course of disciplining the child, in which case, ‘an aggravated diyah’ is exacted.102 They submitted that the ḥadīth relied upon by the Ḥanafis cannot override the general principle of ‘life for life’.103 It is noteworthy that one important athar from ʿUmar b Khaṭṭāb has played a significant role in the juristic debate on the issue under review. The significance of this athar to our analysis made it expedient to produce it verbatim as recorded in the Muwatta of Imām Mālik: A man of the Banū Mudlij called Qatādaḥ threw a sword at his son and it struck his thigh. The wound bled profusely and he died. Surāqah ibn Jushām came to ʿUmar ibn al-Khaṭṭab and narrated it to him. ʿUmar said to him: ‘At the watering place of Qudayd, count one hundred and twenty camels and wait until I come to you.’ When ʿUmar went to him, he took thirty, four-year-old (ḥiqqah) camels; thirty, five-year-old (jiza’ah) camels and forty pregnant (khalifah) camels from them. Then he said, ‘Where is the brother of the slain man?’ He said, ‘Here.’ He (ʿUmar) said, ‘Take them, for the Messenger of Allāh (PBUH) said, “the killer gets nothing.”’104

The decision of ʿUmar in this respect created divisions among scholars on whether a father can be killed for killing his child, in view of the fact that ʿUmar ordered payment of aggravated diyah as against applying qiṣāṣ. Ordinarily, if ʿUmar had considered the action of Qatādah as unintentional, he would have asked him to pay normal diyah of 100 camels, without specifications. In which case, the ʿāqilah of Qatādah would have been responsible for paying the diyah and not him. To that effect, some scholars, including the Ḥanafis, hold the view that a parent who has killed his child will be made to pay diyah of the aggravated type.105 While Māliki scholars argue that contextually, the reason for the decision is that the action of Qatādah was not intentional, because throwing the sword

100 

See eg Q4:93; 5:32 and 6:151. AA Ibn Qudāmah, Al-Mughni (n 95) vol IX at 359. 102  AH Yamāmah, Mausūʾat Shurūḥ al-Muwaṭṭa li al-Imām Mālik b Anas, vol XXI (Cairo, Dar ‘Alam al Kutub, 2005) at 202–03. 103  ibid, vol XX at 503, and vol XXI at 206. 104  A Al-Tarjumana and Y Johnson, Translation of Malik’s Muwatta, vol 43 www.theonlyquran.com/ hadith/Malik-Muwatta. 105 Yamāmah, Mausūʾat Shurūḥ al-Muwaṭṭa li al-Imām Mālik b Anas (n 100) vol XXI at 203. 101 

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at his son is not enough to conclude that he intended to kill him. Therefore, his action could not categorically be classified as intentional.106 They argue that this cannot equate Qatādah’s action with say, slaughtering one’s own child or doing any act for which intent to kill is obvious, like throwing the child in a lagoon or canal, or shooting him with a gun. In the latter case, the parent shall be liable to qiṣāṣ.107 Secondly, the fact that the order given by ʿUmar was directed to Surāqah ibn Jusham and not to Qatādah (the culprit), points to the fact that the diyah was not taken from Qatādah’s wealth but from the common assets of the Banū Mudlij who were Qatādah’s ʿāqilah. Besides, Surāqah was the leader of the BanūMudlij and the one who reported the incident.108 As such, according to this view, it was a semi-intentional murder. In Zainul Rehman v The State,109 the trial court convicted and sentenced the appellant to death and a fine of 6,000 rupees for killing his two children, aged two and one respectively. On appeal to the High Court, the sentence was reduced from death sentence to life imprisonment. The appellant, according to the prosecution, had a quarrel with his wife and the latter went away to her family house along with her brother leaving behind the children with the appellant. After about a month, Kushi Muhammad (the wife’s brother) went back to the appellant’s house to enquire about the children, only for the appellant to tell him that he had thrown them in a canal. Kushi and two other witnesses had heard this extra-judicial confession from him. On further appeal to the Supreme Court of Pakistan, the Court acquitted Zainul Rehman on the ground of absence of corroborative evidence to support the extra-judicial confession. According to the Supreme Court, the fact that the appellant went to the scene and pointed out to the police the exact place where he threw in the children was not sufficient corroboration. The Court argued that what weakened the prosecution’s case was the fact that the police did not discover any incriminating item at the scene. Therefore, weak evidence, according to the Supreme Court, could not corroborate weak evidence. Unfortunately, the Court did not consider the absence of the children as corroborative enough. The case of Nasir Khan v The State110 is another case involving a father killing his daughter. In this case, a girl of four died because of a severe beating from her father. The trial court sentenced him to life imprisonment but he appealed pleading under section 306(b) PPC that the deceased was his daughter. His appeal did not succeed because his conviction was a taʿazīr sentence under section 302(b) PPC, and could not therefore invoke 306(b) PPC.

106 ibid. 107 

ibid, at 202.

109 

Zainul Rehman v The State (2001) SCMR 1405. Nasir Khan v The State (2003) YLR 727.

108 ibid. 110 

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Convicting and sentencing parents under sections 302(b) and (c) appears to be a measure that may reduce the rate of this crime. Unfortunately, this interpretation in Nasir Khan’s case provides room for accused persons to side-track the law, as Tahir Wasti’s research suggests. According to him, In order to take advantage of this seemingly strange state of affairs, accused persons will at present often confess to a crime so that they are sentenced under section 302 (a), in which case the court cannot sentence them for life under section 302 (b) or (c), if the parties compound the offence.111

There is absolutely no justification in showing leniency to perpetrators of child murder. As observed from the above, this principle incorporated in section 306(b) of the PPC is not an agreed principle among the classical jurists. Given its inconsistency with the Holy Qurʾān, as noted above, can it be the basis for other principles? The provision that neither spouse can be liable to qiṣāṣ as long as they have a child appears to be unsupportable by any provisions of the Qurʾān or Sunnah of the Prophet. It is analogically deducted from the other provision that a parent is not killed for killing his/her child. The argument is that since death of a child cannot be retaliated against his parents, it is only logical that the child cannot assert his qiṣāṣ right against any of them.112 This view is said to be supported by ʿUmar b ʿAbdul Azīz, Al-Nakhai, Al-Thauri, Al-Shāfiʿi and the Ḥanafi School.113 To illustrate this argument, if Mr A (husband) kills his wife and the latter is survived by her father and AB (male or female child) from their marriage, AB is not entitled to demand qiṣāṣ from Mr A (his father) for killing his mother, since even if Mr A kills AB, Mr A will only be liable to pay diyah. According to the proponents of this view, this provision gives concession to both spouses. Al-Zuhri, however, limits the allowance only to husbands. According to him, the marriage contract makes wife’s status akin to that of a slave, as somebody owned by her husband. Therefore, qiṣāṣ may not apply if the husband kills the wife, but not the other way around.114 However, Ibn Qudāmah was apt in condemning Al-Zuhri’s view as highly erroneous and goes against the express provisions of the Qurʾan and Sunnah, which stipulate equality of arms between couple. He argues that either of them is liable to ḥadd of qadhf for making a false accusation of zina against the other.115 In addition, a wife is a free person and not a slave; as such, the only right a man can claim over her is the exclusive enjoyment of her body. Besides, a husband is only limited to a prescribed portion of her estate, if she is deceased, and cannot allocate everything to himself. All these factors demonstrate her individuality as a person with full rights. Therefore, if for any reason,

111  112 

Wasti (n 1) at 217. Ibn Qudāmah (n 95) vol IX at 362.

113 ibid. 114 ibid.

115 Q24:6-10.

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a husband kills his wife, he is liable to qiṣāṣ, in the same way that a stranger is treated should he kill her.116 The above demonstrates that the view incorporated under section 306(b) and (c) of the PPC is not plausible. It therefore behooves the legislature and the judiciary to reconsider this provision of the Code. It is believed that removing this concession would aid the fight against maltreatment of women in their matrimonial homes. A situation where a husband lives his life after wasting his wife’s life, simply because they have a child together, may encourage people to perpetrate such acts with impunity. It also demonstrates that plurality and diversity of opinions, though enriching, could, if not properly handled, create difficulties in enacting a religious-based law.

B.  Commodification of Women in the Name of Badl-al-ṣulḥ Giving a female in marriage by way of badl-al-ṣulḥ is another issue of concern to women. Badl-al-ṣulḥ was introduced in the corpus of Pakistan law via the Qiṣāṣ and Diyat Ordinance, 1990. Earlier on, Cheema’s draft suggested it under section 15(5) of the draft Ordinance. The draft Ordinance opened up a Pandora’s Box when it gave badl-al-ṣulḥ a very wide construction. It defined badl-al-ṣulḥ to mean ‘mutually agreed compensation according to Sharīʿah, to be paid by the convict to a wali in cash, kind, or in the shape of movable or immovable property or any right’. Obviously, the explanatory note did not talk about giving a female as compensation in compounding a homicide case. However, the susceptibility of the section to wide interpretation allowed people to agree on compensation in whatever form. This encouraged fathers to use their daughters in making settlements. This proposition might be true, when one considers the amendment introduced in the 1990 Ordinance, in which section 310(1) of the PPC outlawed giving a female only without anything as insufficient compromise. The section provided that in the case of qatl-e-amd an adult sane wali may, at any time on accepting badal-i-ṣulh, compound his right of qiṣāṣ: Provided that only giving a female in marriage shall not be a valid badal-i-ṣulh.

This provision did not solve the problem but afforded a convict the advantage of negotiating with heirs of the deceased, by agreeing to give his daughter in marriage (in addition to some money) to any of them, in return for his release. In the case of Yara v State,117 the convict was sentenced to life imprisonment and payment of fine of Rs 200,000 under the old Penal Code in 1986 for murdering somebody. While in prison, the new Code was enacted and he reached a compromise in 1991 whereby two of his daughters were given in marriage as compensation 116  117 

Ibn Qudāmah (n 95), vol IX at 362. Yara v State (1992) SCMR 1283.

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to the heirs of his victim. The High Court refused to recognise the compromise since murder case was not compoundable and advised the parties to contact the executive authorities. The government referred the matter to a District Magistrate who inquired and reported about the genuineness of the compromise and that the heirs had received the Rs 200,000 compensation and the two daughters. The Supreme Court, on the strength of section 310 of the PPC, endorsed the compromise, reversed the judgment of the High Court and ordered the immediate release of Yara from prison.118 Abusing the provisions of this law is nowhere more obvious than in the ­high-profile case of Sadar Khan v The State.119 In this case, a court convicted and sentenced the four accused persons to death. Barely two weeks before their execution the deceased’s family and the family of the convicts reached a compromise. The compromise package was to the effect that the offending family agreed to give eight girls and 12 million rupees as compensation to the offended family. However, because of the intervention of human rights organisations and other influential figures in Pakistan the number of girls was reduced to two. Hence, the girls, aged 14 and 15, were married to two men from the deceased’s family, aged 77 and 55, respectively. This practice is so embedded in the psyche of some Pakistani societies that it appears unabated. Recently in July 2017, a nine-year-old girl was conscripted into marriage by a panchayat (local council) to atone for the offence of her relative, Haji Muhammad alleged to have kidnapped the wife and children of one Bhuda Khan. The girl who is the niece of the suspect was married off to the nephew of the complainant under the vani custom.120 One will best appreciate the phenomenon of using women as instrument of exchange when pondering on the attitude of some communities towards women. Describing the Pukhtuns’ attitude, Shaheen Sardar Ali says: Not only is a woman not mentioned in a conversation among men, she literally does not exist. A typical response of a man queried about the number of his offspring is likely to be: ‘maal da khudai, dua danai di’ (it is God’s wealth (referring to his children), I have two pieces). The two pieces here is understood as two male children; the female child is completely ignored when counting children. Similarly, family trees, whether written or oral bear no mention of any women members. Women, in customary law, are legal non-entities at worst; at best they are perpetual legal minors under the guardianship of male relations … The above discussion reinforces the argument that women are viewed as property, bought and sold at will by male relatives for advancing their own financial and marital gains.121

118 

See Prosecutor General Government of the Punjab www.pg.punjab.gov.pk/qisas_and_diyat. Sadar Khan v The State (2002) (unreported) cited in Wasti (n 1) at 281. 120  The Express Tribune, ‘9-year-old girl married off to man under “‘Vani” in Dera Ghazi Khan’ (24 July 2017) https://tribune.com.pk/story/1465646/9-year-old-girl-married-off-man-vani-dera-ghazi-khan/. 121  SS Ali, Gender and Human Rights in Islam and International Law: Equal Before Allah Unequal Before Man (The Hague, Kluwer Law International, 2000) at 175. 119 

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A girl given out in marriage in such circumstances is left at the mercy of the relatives of the murdered and can be married to any male member of the victim’s family, as she is forced by culture to live in that family.122 The questions that readily come to mind is why a female and not a male? Can badl-al-ṣulḥ with a female ever qualify as marriage? Is it not likely to subject the woman to perpetual ­stigmatisation, bondage, servitude, prejudice and victimisation? Given the dignified position human beings, particularly women, enjoy under the sharīʿah system; can such practice ever qualify as Islamic? As observed in Part I of this book, compromise comes either by way of complete waiver or by accepting compensation, which, during the formative period of Islam, was 100 camels or its equivalent in gold or silver coins. There is not a single authority either in the Qurʾān or in the Sunnah which allows the use of human beings as instruments of exchange. Equally noteworthy is the fact that classical jurists did not allude to giving females as compromise. Indeed, one of the essential conditions for the validity of ṣulḥ under the Ḥanafi School is that the subject matter of the ṣulḥ must be property (māl). Therefore, only something that qualifies as property can be a subject of ṣulḥ, since compromise presupposes recompense.123 Even the promoters of this practice did not justify it on ground of sharīʿah but hinge it on tribal customs and practice. Unfortunately, the fact that Islamic law is proclaimed to guide Pakistan in its affairs has effectively allowed cultural practices like objectification and commodification of women to pass off as practices sanctioned by Islam. Permission to agree to a compromise is well articulated in the Qurʾān and ­Sunnah. It is also reflected in the contemporary criminal law of Pakistan.124 It is an inalienable right of heirs of a victim to demand qiṣāṣ, compound or waive their rights against an assailant.125 It is one of the categories of rights where an individual’s right overrides God’s rights.126 Indeed, the Qurʾān tilts more on the side of compromise than qiṣāṣ, as it enjoins believers to compound the offence to ensure that peace reigns among the offended and the offending families. Quran 2:178 reads: O ye who believe! The law of equality is prescribed to you in cases of murder … But if any remission is made by the brother of the slain, then grant any reasonable demand, and ­compensate him with handsome gratitude. This is a concession and a mercy from your Lord.

122 R Patel, Woman versus Man: Socio-Legal Gender Inequality in Pakistan (Oxford, Oxford University Press, 2003) at 164. 123 Al-Kāsāni, Badāʾiʿ al-Ṣanāʾiʿ fi Tartīb al-Sharāʾiʿ (n 93) vol VII| at 472. 124  See PPC, s 310. 125 Q17:33. 126 M Abdel Haleem, ‘Compensation for Homicide in Islamic Sharīʿa’ in M Abdel Haleem et al (eds), Criminal Justice in Islam: Judicial Procedure in the Sharīʿa (London, IB Tauris, 2003) 97–108 at 97.

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In line with this, Muḥammad Abdel Haleem says: Having established the principle of equity, the Qurʾān then goes on to recommend pardon in return for compensation. Here, it departs from legal vocabulary to use emotive words, even calling the culprit a ‘brother’ of the victim’s representative (waliyyal-dam).127

The fact that people abuse the privilege given to them under the sharīʿah may not be valid grounds for condemning the substantive provision as being responsible for the perpetuation of female victimisation through the practice of given women in badl-al-ṣūlh. It behooves the contemporary jurists to devise means of dealing with this menace through a well-structured ijtihād via formal institutions like the legislature or the court, as was attempted in 2005 by the enactment of Criminal Law (Amendment) Act, 2004 (I of 2005).128 After this legislative action, the likes of Yara and Sadar Khan will not get away with their unlawful acts. By this Act, section 310 of the PPC was amended to outlaw giving a female in marriage as a form of badl-al-ṣulḥ and a maximum imprisonment term of 10 years is prescribed for any violator of the provision.129

C. Disbursement of Diyah Proceeds according to Inheritance Rules Section 330 of the PPC provides for disbursement of diyah proceeds among heirs of the victim in accordance with their respective shares in inheritance.130 Women under the aegis of National Commission on Status of Women of Pakistan felt differently, in view of the absence of explicit provision in the Qurʾān that allows extending the inheritance rules to the issue of diyah. The Commission observes that mixing up the two by applying the principles of one to the other may create problems when it comes to sharing the proceeds of diyah.131 In its bid to execute its mandate of unearthing laws unfavourable to women in Pakistan, the Commission engaged Syeda Viqar-un-nisa Hashmi to conduct this research on its behalf. There was intensive consultation with prominent Islamic scholars and other players in the legal field, including Javed Ahmed Ghamidi, Chief Justice of Pakistan Sajjad Ali Shah, etc. Specifically, on the disbursement of diyah, the following question was raised: ‘Whether the mode of the disbursement of diyah among heirs of the victims according to their respective shares in inheritance, as provided under section 330 of the Pakistan Penal Code, is Islamic and valid?’132

127 ibid. 128 

PPC, s 310. ibid, ss 310(1) and 310A. 130  ibid, s 330. 131  The Commission was established in 2000 and saddled with the mandate, among other things, of reviewing all policies, laws, rules and regulations affecting the status and rights of women in Pakistan and to proffer recommendations for amendment and repeals for a better regime. 132  See National Commission on the Status of Women, Qisas and Diyat Report (n 60). 129 

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The findings of the Commission on the issue show that tying diyah with i­nheritance does not have any supporting authority in the Qurʾān. The Qurʾān does not refer to heirs on the issue of compensation but to the family of the deceased.133 The report observes that the term waris (legal heir) is not used in the Holy Qurʾān in the context of diyah but the words used in that respect are ‘waliyyi hi’ (his heir),134 ‘ahl’ (family)135 and ‘akhi hi’ (brother of the slain).136 In further supporting its position on the non-applicability of law of inheritance to matters of diyah, the report suggests that in line with the spirit of justice of sharīʿah, courts should be guided by the needs of the heirs of the deceased in distributing his estate and not their genders.137 According to the Commission: The objective of diyat inter alia is to make good (to some extent) the loss sustained by the immediate dependents of the victim. For instance, a person dies leaving behind parents, brothers, sisters, widow, daughters, sons and even an adopted orphan child. Out of these some are grown up, well settled and living independently, while some are young and totally dependent on the murdered victim and have no source of income at all. In such a situation, the application of the law of inheritance would lead to giving a major share to those who are already well settled and lesser share to daughters who are not married and sons who are still being educated. This certainly does not go along with the true spirit of the concept of justice in Islam. It can safely be said from the above discussion that instead of applying the law of inheritance blindly, the court must have the authority to assess the needs of the dependants of the murdered victim and distribute the amount of diyat among them according to their needs/circumstances.138

Arguably, since estate (tarikah) is what a deceased person left behind at his demise, the proceeds of his diyah may not qualify as such, since it is a property that accrues thereafter. It may therefore not be reckoned as tarika forming part of his inheritable property. It seems inappropriate to classify it as forming part of the estate for the following reasons. First, the deceased was not aware of it since it is not a dividend accruing from any of his investments. Secondly, under the law of inheritance a person can bequeath at least one third of his estate before his death but the same cannot be possible with the proceeds of diyah. Thirdly, the Holy Qurʾān says the diyah is payable to his family.139 On the other hand, when viewed from another perspective, the application of inheritance law in the disbursement of diyah may be premised on Q17:33, which empowers the wali with the authority to demand or forgo qiṣāṣ.140 This is the preferred position of the Fatāwa Standing Committee of Saudi Arabia.141 133 

ibid, at 71.

134 Q17:33. 135 Q4:92.

136 Q2:178. 137 

National Commission on the Status of Women (n 60) at 72.

138 ibid.

139 Q4:92.

140 Q17:33.

141  AA Duwaish (ed), Fatāwa al-Lajinat al-Daʿimah, vol XXI (Riyadh, Dār al-Muīd (2002) at 229 No 6647.

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The Women’s Commission only referred to the Holy Qurʾān but did not bother to ascertain the position of the Sunnah in that regard. It left the pronouncements of the Prophet on the subject matter unexplored. However, to determine what is in line with the spirit of Shariʿah analysis of what transpired during the early years of Islam is necessary. It is reported that two married women of the Hudhayl clan fought and in the course of the scuffle, one of them died, leaving behind her husband and a male child. The Prophet ordered the ʿāqilah of the surviving woman to pay diyah to the widower of the slain woman and the child. Indeed, the male agnates of the slain woman, as her customary legal heirs, wanted to claim the diyah as was the practice before Islam, but the Prophet declined their request and ordered that it belonged to her husband and the child.142 A cursory look at the above ḥadīth reveals that there is a relationship between diyah and inheritance. It is an established rule of Islamic inheritance that the existence of a male child excludes the deceased’s siblings from having any share in the deceased’s estate.143 Little wonder that when the ʿāqilah of the deceased woman wanted to claim her diyah they were refused, because of the existence of the child and the widower. If diyah is not related to inheritance, perhaps the Prophet would have allotted its proceeds to the ʿāqilah, in line with the customary practice of the Arabs of pre-Islamic era. The concern of the Women’s Commission might not be unrelated to the mistaken belief that Islamic system of inheritance is male-biased; hence, its objection to applying these rules in sharing the diyah. It is noteworthy that the fact that diyah is related to inheritance should not be interpreted to mean that the man takes double the share of the woman. This formula of double ration for the man in the inheritance system of Islam is just one out of many formulae of distribution provided under Q4:11–12. Apart from that formula, Qurʾān also prescribes equal shares to parents, and to the siblings of a deceased as per Q4: 11–12 produced below: 11. Allah (thus) directs you as regards your Children’s (Inheritance): to the male, ap ­ ortion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth. (The distribution in all cases) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah. And Allah is All-knowing, All-wise. 12. In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of 142  MA Al-Shawkāni, Nayl al Awṭār, vol XIII (MH Hallāq, ed) (Riyadh, Dār Ibn Al-Jawzī, 2006) at 210, ḥadīth 3084. 143 Q4:11.

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legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah. And Allah is All-knowing, Most Forbearing.

In the same vein, Ibn Taymiyyah reported an incident during the reign of the second caliph, ʿUmar b Khaṭṭāb, where the husband of a certain woman was killed and diyah was paid. The widow of the slain man wanted to claim the diyah of her husband but ʿUmar ruled that the ʿāqilah of the deceased husband were entitled to the diyah without making any provision for the deceased’s widow. Apparently, ʿUmar did not know that the Prophet had long reversed the pre-Islamic system in which women were not entitled to anything from diyah. Fortunately, one of the Prophet’s companions, Dahhāk b Sufyān Al-Kallābi, who was aware of the ­Prophet’s ruling on this issue, came to the rescue of this woman. He therefore wrote to ʿUmar intimating him of the decision of the Prophet. He reported that the Prophet gave the wife of Asyam al-Dhababi a portion of the diyah of her deceased husband.144 As a result, ʿUmar rescinded his earlier ruling admitting that ‘had this information not reached us, we would have decided to the contrary’.145 The action of ʿUmar in not allotting any share of the diyah to the woman at the initial stage may point to the fact that the estate of a deceased and the proceeds of his diyah were treated independently. Otherwise, ʿUmar would have no difficulty allotting her a fraction of it, since the Holy Qurʾān entitles her to one fourth or one eighth, as the case may be, from the estate of her deceased husband, as per the following verse: In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts.146

The two narratives allow a certain share in the proceeds of diyah to the families of the deceased. In the former, the widower and his male child were the sole beneficiaries while in the latter the widow got part of it, apparently because the deceased did not have a child. If the phrase ‘ahlihī’ (his family) in the verse quoted by the Women’s Commission is meant to refer only to the immediate family to the exclusion of any other, the woman in the second narration would have been given the whole diyah of her deceased husband. The linkage between diyah and inheritance afforded the siblings of the deceased husband to be allotted some portion of the diyah proceeds since the woman in the second narration was alone, so she could not have excluded the deceased’s ʿāqilah from receiving part thereof.

144  A Ibn Taymiyyah, Raf ʿu al -Malām ʿan al-ʾAʾimmat al-ʾaʿlām (Cairo, Maktabat al Sunnah, 1997) at 13. 145 ibid. 146 Q4:12.

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The above narratives alluded to the fact that legal heirs were beneficiaries of the diyah proceeds. However, none of them referred to the nature of disbursement of the proceeds. The sharing formula appears settled by the Prophet as per the ḥadīth of ʿAmr b Shuʿayb recorded by Abū Dawūd, where he is reported to have declared diyah as part of the estate of a deceased to be shared among his/her heirs.147 The fact that reference was made to inheritance shares might give the impression that the half diyah stipulation is justified by analogy to the inheritance rule. This may only be valid had there been no narrative from the Prophet which fixes the diyah at 100 camels without regard to gender. The fact that the Prophet had settled this nagging issue disentitles the exercise of judge’s discretion as the Commission seeks to suggest.148 Careful observation of the traditional Pakistani communities like the Pukhtun and their attitude towards women as earlier highlighted, would reveal that it is even more empowering for women to retain their Qurʾānic shares than to be left at the mercy of a judge. This is because no matter the circumstances, she will be entitled to her allotted Qurʾānic share. This is particularly so in view of the fact that women are more likely to be denied any share in the estate than men, who are known to pursue such claims in most societies. This is in addition to the entitlement of her children whose existence excludes other relatives of her deceased husband, like his siblings, from sharing the proceeds. Another lesson derived from the above narratives is the fact that access to justice was affordable to everyone regardless of social or gender status. If such openness did not exist, the issue would never have arisen. Interestingly, the woman was afforded direct access to the highest authority, namely, the caliph, without any intermediary. Yet another lesson learnt is that companions of the Prophet were human beings, and thus fallible. They are susceptible to making error of judgment in dispensing justice regardless of their closeness to the Prophet. For instance, it would not be possible for ʿUmar to witness the entire actions and utterances of the Prophet. Like other human beings, the Prophet’s companions also used to go about their daily businesses and quite a number of them were emissaries or governors to other lands within the territory of the Islamic state, as we saw in the examples of Muʿādh b Jabal and ʿAmr b Ḥazm. It was impossible for them to know all that transpired in their absence. Because of this state of affairs, Muslim scholars used to provide excuses for the discovered errors made by these highly dignified people as unintended owing to lack of awareness of the true position of things, among other reasons.149

147 SA Abū Dawūd, Sunan Abū Dawūd, vol IV (MM ʿAbd al-Ḥamīd, ed) (Beirut, Maktabat al-ʿAṣriyyah, nd) at 187, ḥadīth 4564 and was declared good (ḥasan) by Muḥammad Nasiruddīn Albāni. 148  See National Commission on Status of Women (n 60) at 72. 149  See generally Ibn Taymiyyah, Raf ʿu al -Malām ʿan al-ʾAʾimmat al-ʾaʿlām (n 142).

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ʿUmar’s narrative also shows how flexible those in authority during the formative age of Islam were when faced with evidence that was more plausible, concrete and overwhelming. It also points to how the prevailing culture of a default system, if unchecked and unchallenged, can infiltrate into Islam, thereby clouding the new order that replaces it. Were it not for the openness of the system and the courage exhibited by Dahhāk b Sufyān in drawing ʿUmar’s attention to the Prophet’s ruling on this matter, women would have been excluded from the proceeds of the diyah of their deceased husbands. Male relatives of the deceased could easily come in and collect the diyah, since that practice had acquired legal certification from ʿUmar. The immediate family of the deceased would have been left in poverty and want, coupled with the agonies of his loss. Since authentic ḥadīth that classifies diyah proceeds as forming part of the estate exists, it is less likely for the Women Commission’s recommendation on taking the needs of heirs into consideration to receive a positive reception from the government of Pakistan.

D.  Absence of ʿĀqilah Institution in the Code As discussed earlier in Part I, classical jurists employed the ʿāqilah institution as a balancing mechanism in gender relations. The institution was male-centric bearing in mind the socio-economic realities of the time. It also noted the changes occasioned today in our social set-up, which may warrant the participation of women in contributing to the common pool, provided they are economically buoyant. The situation in Pakistan shows that when the Qiṣāṣ and Diyat Ordinance was finalised and incorporated into the PPC, the government took no account of the significance of ʿāqilah. The whole concept was declared by the Pakistan Law ­Commission as ‘complicated’ and ‘controversial’ in today’s context, owing to lack of agreement among the classical jurists on what constitutes ʿāqilah, and in particular, the absence of ethnic/tribal solidarity known in pre-Islamic Arabia.150 Clause 2(b) of Cheema’s Draft Ordinance defined ʿāqilah as ‘adult, male and sane relations of the offender or convict, through his father, or the person or group of persons from whom he receives or expects to receive financial help or support’. This so obviously gendered definition did not raise concern among women’s organisations when they were to give their input. Ultimately, the suggestion of the Pakistan Law Commission prevailed and the concept was discarded. In September 1990, a few months after the Qiṣāṣ and Diyat Ordinance came into force, there was a transporters’ strike in the whole of Pakistan. Drivers felt the law was going to make them pay huge monetary compensation (diyah) for fatal

150 Report of the Committee of Pakistan Law Commission on Offences against Human Body (Enforcement of Qisas and Diyat) Ordinance, 1984 www.ljcp.gov.pk/Menu%20Items/Publications/ Reports%20of%20the%20LJCP/reports/report10.htm.

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injuries caused by their vehicles.151 Unlike the provisions of the erstwhile secular-based Code, which provided for imprisonment in cases of rash and negligent act, the new amendment now doubled the punishment. Apart from undergoing a prison sentence of up to 10 years, a convict was expected to pay diyah. The operation of the law had to be suspended for a while and subsequently, it was amended in 1991.152 The amendment slightly changed the definition of diyah by removing the following: ‘by the offender’.153 By this amendment, payment of diyah need not be made by the offender alone but it allows for the possibility of any other person to assist in the payment. This might work to the advantage of drivers, as their employers, mostly transport companies, may have to pay the diyah on their behalf as a vicarious liability. In practice, however, this is hardly ever the case. A convict may remain in prison as long as there is an outstanding diyah on him, unless he is fortunate enough to have some philanthropists and donor agencies coming to his rescue.154 Although the Pakistan Law Commission may have a legitimate claim over the definition of ʿāqilah, it should have suggested an alternative construction that is contextual and contemporaneous. Instead, the PPC simply prescribed imprisonment for any person unable to pay diyah.155 One wonders what use incarcerating an accused person is to the victim’s heirs. In essence, the state has denied the accused the concession provided under the sharīʿah via the ʿāqilah institution. This sheer dismissal of such a welfare-related institution by the Law Commission without more may plunge the victim’s heirs into further misery. Section 323(1) of the PPC provides the minimum value of diyah as 30,630 grams of silver whose value the government is mandated to ascertain and publish annually in a gazette.156 The value of diyah in Pakistan is Rs 1,680,320 as declared in July 2016 for the 2016/2017.157 Under the law, diyah is paid either as a lump sum or in instalments over a period of three years from the date of judgment.158 From July 2015, the minimum wage in Pakistan for salaried earners was increased to 13,000 rupees per month.159

151 

Gottesman (n 1) at 442, note 37. Wasti (n 1) at 181. 153  cf s 299(e) of the 1990 Ordinance, which defined diyah as ‘the compensation specified in section 323 payable to the heirs of the victim by the offender (emphasis mine)’ and s 299(e) of the1997 Ordinance, which states thus diyah means the compensation specified in section 323 payable to the heirs of the victim (emphasis mine). 154  See Press Information Department (Government of Pakistan), ‘PR No.205: Hon’ble Chief Justice of Pakistan Spent the Eid Day with the Prisoners in Adyala Jail to Redress their Grievances’ www.pid. gov.pk/press22-09-09.htm. 155  PPC, s 331(2). 156  PPC, s 323(2). 157  Government of Pakistan, Finance Division, Internal Finance Wing, Notification of Diyat for the Financial Year 2016–17 www.ilmilog.com/2016/08/notification-of-diyat-for-financial.html. 158  PPC, s 331(1). 159 Minimum Wages for Unskilled Workers (Amendment) Act, 2016 www.na.gov.pk/uploads/­ documents/1456123944_586.pdf. 152 

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It will be demanding the impossible for a low salary worker to pay the compensation as stipulated by the law without any support. For him to liquidate the diyah he requires at least 10 years if he surrenders all his earnings for this period. In a year, he will expect to earn 13,000 x 12 = 156,000 rupees (1,680,320/156,000 rupees = 10.8 years). His inability to pay will have a telling effect on him, his family and the victim’s heirs. Women may even be worse off because of their low socio-economic standing, and that could mean an indefinite stay in jail. The absence of theʿāqilah institution might have been responsible for what made some scholars perceive the Qiṣāṣ and Diyat Ordinance as only benefiting the rich while the downtrodden languish in prison due to their inability to pay diyah.160 Compare the case of Sadar Khan v The State (section VII.B) and that of Muhammad Arif v The State.161 In the latter case, the convict was a poor security man, who inadvertently left his duty post to break his Ramadan fast, only for a small boy of two years to fall in the tube well he was guarding. His case was clearly unintentional, and upon conviction, the Court ordered him to pay 117,061 rupees as diyah. The amount was highly prohibitive and all entreaties to the heirs of the deceased to forgive him were unsuccessful. To add insult to injury, he was man of straw whose annual income was only 15,000 rupees. Consequently, he will be incarcerated for a very long time, because even if he surrenders the whole of his earnings to the deceased’s heirs annually, he would need at least eight years to settle the diyah (117, 061 / 15,000 rupees = 7.8 years), unless a philanthropist comes to his aid. It is difficult to understand how a system would rely on uncertainties while there are ways of providing succour to both the victim’s heirs and the perpetrator under sharīʿah, upon which the criminal justice system was established. If such public-spirited individuals and NGOs, as we saw in the Press Release of the Chief of Justice’s visit to prison, choose to diversify their preferences, the indebted prisoners unable to pay outstanding diyah are doomed. The Supreme Court foresaw this possibility when it issued guidelines in 2006,162 requiring the Federal Government to make rules under section 338G of the PPC that will allow the creation of a fund to assist indigent prisoners. The fund is to help them with soft loans to enable them pay diyah and to consider extending the payment period from three years to up to seven years.163 This legislation was made in a bid to give effect to the order of the Supreme Court of Pakistan dated 14 December 2006 requiring the government to devise ways of addressing this problem.164 Earlier on, such orders used to be given on a case-by-case basis. For instance, in Abid Hussain v The ­Chairman, Pakistan Bayt-al-Mal,165 the Court ordered the government to pay the 160 

Wasti (n 1) at 232. Muhammad Arif v The State (1999) MLD 2271. 162  Government of Punjab, Lahore v Abid Hussain and Others (2007) PLD 315 SC. 163 Pakistan Penal Code (Amendment) Act, 2010, http://www.na.gov.pk/uploads/documents/ 1302137134_602.pdf. 164 ibid. 165  Abid Hussain v The Chairman, Pakistan Bayt-al-Mal PLD (2002) 482 Lah. 161 

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diyah on behalf of the convict who had been languishing in prison for inability to pay because of his low financial standing.166 These along with numerous other examples necessarily call for a rethink into how best to utilise ʿāqilah to serve as a social safety net, by emphasising its victim’s heirs-centred welfare component.167 To gloss over the role of ʿāqilah as irrelevant simply because there is now no similar institution as existed 1,400 years ago, without reflecting on its social significance, will do more harm than good to society in general. By this the wisdom behind placing the payment of compensation on ʿāqilah is lost on two fronts (ie the side of the perpetrator and the victim’s heirs), because of this heavy blow by the Pakistan Law Commission. Indigent accused persons, who, out of misadventure as in the case of Muhammad Arif (above), caused someone’s death, will see no end to their incarceration. Equally, relatives affected by the unfortunate demise of their loved ones or breadwinners will perpetually wallow in poverty and destitution, since there is hardly any social welfare scheme to address their problems. The government’s initiative of creating a fund to help indigent prisoners in the payment of diyah may be a commendable step, but it only goes towards meeting the needs of the victims. The fund only aids the perpetrator with loan to get out of the prison, as he will have to pay back the loan and look after his own family too. For this reason, this may not be a viable approach to the problem. As pointed out in Part I, mutual assistance and solidarity of a different kind exist in modern states. Consensual and non-consensual solidarity exist where citizens collectively pool their resources in providing common services through various means. Motor vehicle insurance policy is one such method although we have shown the difficulty of using this paradigm in developing states, and more particularly in Muslim states, where they need sharīʿah-compliant insurance policies. A new paradigm described as ‘citizenship solidarity paradigm’ proposed in Part I seems more appropriate in the circumstances. A certain percentage of taxes generated for common services can be remitted to the ‘Accident Victim Compensation Fund’ for use in payment of compensation on behalf of the perpetrator to the victim’s heir. The perpetrator benefits from this because he is a taxpayer and is contributing to the state funds. There is a guaranteed source of payment for the victim’s heirs, thus saved by their fellow citizens from perpetual suffering. Of course, some evil-minded people may hide behind this and commit atrocities knowing that their unlawful act may in the long run be defrayed by their ʿāqilah. The state can devise the means of checking such excesses, as even in the classical days measures were taken to ensure that such evil-minded people were not assisted but were made to pay the diyah personally. For instance, a person may collude with

166 

See also Allah Ditta v The State (2002) PLD 406 Lah. MU Abubakar, ‘Rethinking the Role of ʿAqilah Institution as Social Safety Net: Victim’s Heirs Welfare Centred Approach’ (presented at the International Conference on Re-Imagining the Shari’a: Theory, Practice and Muslim Pluralism at Play, Warwick, Venice Palazzo, Italy, 13–16 September 2009). 167 

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the relatives of a victim for a fee and make outright confession in the court that he was responsible for the death. In circumstances like this he should be made to pay and not the ʿāqilah. It is submitted that an agency may be created to channel such welfare schemes. Since indigent accused person are provided with free legal services at the expense of the state or taxpayers, the same can be afforded to the victims to assuage their sufferings. By this, the classical ʿāqilah would have been given a modern touch by considering the citizens of a geographical area in mutual assistance and solidarity. With this, not only is the accused aided in defending his case and paying compensation on his behalf, he is saved from unnecessary detention in jail. On the other hand, the right of the victim’s heirs to compensation is not left unattended and sanctity of human life is preserved.

VIII. Conclusion This chapter undertook an overview of the development of qiṣāṣ and diyah provisions of Pakistan and the legislative processes that culminated in their incorporation in the PPC. The chapter noted considerable departure from the classical fiqh in major gender issues in contention, as the Code prescribes gender equality in both homicide and bodily injury. However, the Code contains other provisions that carry mitigating circumstances in section 306(b) and (c), which are capable of making unmarried girls and married women easy prey for their errant parents and husbands. It noted how cultural baggage alien to Islam infiltrated in the Code, which is touted to be based on Islamic law, that conveniently commodify women in the name of badlal-ṣulḥ. Absence of the institution of ʿāqilah in the Code was equally noted and it was argued that reliance on contingencies only portrays the qiṣāṣ and diyah provisions as benefiting the rich at the expense of the downtrodden.

8 Legitimising Gender Violence through Judicial Process I. Introduction Having seen how women fared in the chequered history of Pakistan, it is ­pertinent to analyse the role of the judiciary in the interpretation of the PPC and the extent to which they employed religious arguments to legitimise cultural traditions and customary practices prejudicial to women. The analysis focuses mainly on the decided cases of High Courts and Supreme Court of Pakistan on h ­ omicide on the pretext of honour and the use the plea of grave and sudden provocation in mitigating prescribed sentences. It argues that there is actually no linkage between the major sources of Islamic law with the injustice meted on women under the guise of qiṣāṣ and diyah provisions of the PPC, and demonstrates how courts in Pakistan aid perpetuation of injustice against women through employment of skewed interpretation and selective application of religious sources. In addition to the influence of customary practices, the English legal system, being a colonial legacy, has also impacted on the courts’ decisions thereby allowing ­concessions to men accused of intra-family femicide.

II.  Judicial Attitude to Honour Crimes Honour crimes have become endemic in many Muslim countries including ­Pakistan, although it is a common social problem in other countries including the US, Brazil and India.1 Human Rights Watch defines honour crimes as ‘acts of violence, usually murder, committed by male family members against female members who are perceived to have brought dishonour upon the family’.2 Social 1  M Spatz, ‘A “Lesser” Crime: A Comparative Study of Legal Defences for Men who Kill their Wives’ (1991) 24(4) Columbia Journal of Law and Social Problems 597–638 at 498; CB Ramsey, ‘Provoking Change: Comparative Insights on Feminist Homicide Law Reform’ (2010) 100(1) The Journal of ­Criminal Law and Criminology 33–108. 2  M Hussain, ‘“Take My Riches, Give Me Justice’’: A Contextual Analysis of Pakistan’s Honor Crimes Legislation’ (2006) www.law.harvard.edu/students/orgs/jlg/vol291/hussain.pdf 223–46 at 225.

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norms have already enshrined the appropriate behaviour a woman is expected to exhibit and failure to meet the expectation may justify violence against her.3 Honour killing manifests itself in a variety of ways and may be committed for cultural or economic motives.4 What usually triggers it is an alleged action of the victim such as engaging in sexual acts or being in a compromising position with a man.5 ‘Compromising position’ has been loosely defined by the Supreme Court in a number of cases to mean being in a position that arouses suspicion that a woman is having some sexual acts with another man, such as holding hands,6 sitting in secluded area,7 etc. The economic motive of honour killing is nowhere more apparent than in case law where it reveals that exercise of a woman’s right to contract marriage ­without her family’s consent8 or her refusal to transfer her landed property to a male relative within the family,9 was often met with serious rebuke. Her insistence on marrying a man of her choice may threaten the economic interest of the male members, who often show interest for the dower paid.10 At times, families prevent widows from remarrying to ensure the retention of what they inherited from their deceased husbands within the family.11 Unfortunately sometimes, flimsy reason, such as a woman’s refusal to prepare food for her male relative, is enough to trigger an honour crime.12 Victims of such heinous act cut across all genders as the cases available show, but the worse affected are women, as society believes them to be the source of honour while men are the custodians. According to Melissa Spatz, ‘a woman is the source of her family’s honour. By committing adultery or losing her virginity before marriage, she spoils this honour. Men carry no such responsibility; instead social mores often require them to avenge their female relative’s behaviour’.13 ­Failure by men to protect this honour often earned them social disapproval or contempt. In the words of Mazna Hussain, A man may be considered effeminate by his peers if he does not take authoritative action to re-assert his authority over a transgressing woman; it is through an act of violence towards the woman that he demonstrates the power of his masculinity.14 3  Asian Pacific Forum on Women and Development (APWLD), ASEAN Regional Plan of Action on Elimination of Violence Against Women, www.asean.org/storage/images/2015/November/27thsummit/ASCC_documents/ASEAN%20Regional%20Plan%20of%20Action%20on%20Elimintation %20of%20Violence%20Against%20WomenAdopted.pdf. 4  Hussain, ‘“Take My Riches, Give Me Justice’’’ (n 2) at 227–30. 5  State v Muḥammad Hanif (1992) SCMR 2047. 6  Nawab v The State (1982) PLD 446 SC. 7 See Kamal v The State (1977) SC 153. 8  Muḥammad Siddique v The State (2002) PLD 444 Lah. 9  Muḥammad Ishaq v The State (1992) PLD 187 Pesh. 10  Hussain (n 2) at 228. 11 ibid. 12 See Naheed Hussain v The State (1992) PCrLJ 982. 13  Spatz, ‘A “Lesser” Crime’ (n) 1 at 599. 14  Hussain (n 2) at 227; Amnesty International, ‘Pakistan: Honour Killing of Girls and Women’ (1999).

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The phenomenon of honour killing appears to be a vicious circle for women from whatever angle one looks at it. This is because in many instances, the person socially recognised to have been offended by a female family member may kill the woman considered as adulteress (kari) and spare her male collaborator the adulterer (karo). The karo would now be compelled to make payment in cash or in lieu by giving a woman to the killer for the damage he inflicted on the honour of the killer, who is socially seen as victim and thus blameless, and thus entitled to compensation from the escaped man. Describing this ugly compromise, Amnesty International states thus: A man’s honour, defiled by a woman’s alleged or real sexual misdemeanour or other defiance is only partly restored by killing her. He also has to kill the man allegedly involved. Since a kari is murdered first, the karo often hears about it and flees … Justice means restoring the balance by compensation for damage. The karo who gets away has to pay compensation in order for his life to be spared. Compensation can be in the form of money or the transfer of a woman or both.15

III.  Provocation under the Pre-1990 Legal Framework The pre-1990 legal framework in Pakistan appears to have made some allowances for the practice of honour killing by tolerating it under the guise of grave and sudden provocation. One will appreciate the influence of English legal tradition on the judges of Pakistan when he takes into account the colonial experience of Indo-Pakistan. It was the Law Commission (1835–37), constituted to draft the Indian Penal Code, that included honour killing among factors that could necessitate mitigation of the death sentence in murder cases.16 During the drafting stage the Law Commission recommended that where the perpetrator claims to see his wife, daughter or sister in an illicit relationship with another person, such intrafamily femicide should be regarded as manslaughter and not murder.17 The Law Commission reasoned that to treat a person guilty of such homicide as we should treat a murderer would be a highly inexpedient course; a course which would shock the universal feeling of mankind and would engage the public sympathy on the side of the delinquent against the law.18

15 

Amnesty International (n 14) at 5–6. Wasti ‘The Law on Honour Killing: A British Innovation in the Criminal Law of the Indian Subcontinent and its Subsequent Metamorphosis under Pakistan Penal Code’ (2010) 25(2) A Research Journal of South Asian Studies 361–411 at 364. 17 ibid. 18  ibid, at 364. 16  T

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The Commission’s position was informed by the fact that allowing concession to the perpetrator of such acts was a universal phenomenon not peculiar to the Indian subcontinent.19 Although the Commission made this observation more than one and a half centuries ago, even today such homicides, popularly known as a crime of passion (crime passionel), enjoy concession in many countries, including ­developed countries like USA and Australia.20 Consequently, the defence of grave and sudden provocation was incorporated as exception 1 under section 300 of the then Indian Penal Code using the following words: Culpable homicide is not murder if the offender, whilst deprived of the power of ­self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

Under the old legal order, perpetrators of honour killing tended to have a field day as they were freely flouting their vices and getting away with it under the cover of ‘grave and sudden provocation’.21 What the court should consider is whether a ‘reasonable man’ and not a hypersensitive person would get provoked and lose his balance of mind and get enflamed under the circumstances and act under the sudden fit to commit homicide as opposed to a cool, calm and calculated action.22 The fact that grave and sudden provocation was one of the defences available to an accused, with the effect of mitigating sentence of murder to that of manslaughter, afforded an accused the liberty to invoke such defence. Sometimes, courts generously invoked it to exculpate the accused, albeit partially, from suffering the highest penalty. For instance, in Mukhtar Ahmad v The State,23 the High Court of Lahore suo motu created the defence of grave and sudden provocation for the accused by presuming that from the brutal nature of the blow meted on the neck of his wife the accused must have been provoked and was awarded a lighter sentence. The same court in another case further concretised the use of such defence in honour killing when it drastically reduced to four months the sentence of five years passed by the trial court.24 The appellant in this case killed his wife and the man alleged to have had illicit relationship with her. In addition to the reduced sentence, the Court further urged trial courts to always be reluctant in imposing heavy punishment on such culprits by holding that: In the background of social custom prevailing in our society and also moral values, notion of honour and chastity, seeing one’s wife in an objectionable condition, (must be) regarded as provocation of gravest kind to witness degrading spectacle of a woman of one’s family being subjected to illicit sexual intercourse.

19 ibid. 20 

See Spatz (n 1); Ramsey, ‘Provoking Change’ (n 1). Spatz (n 1) at 603. Ghulam Muhammad PLD 1976 SC 241. 23  (1985) PCr LJ 1273 Lah. 24  Sher Ali v The State (1985) P Cr L J 2790 Lah. 21  22 

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Indeed, in Muḥammad Sharif v The State,25 the Court reduced the sentence and the fine imposed on the appellant holding that there was no justification in awarding any compensation to the heirs of the deceased woman, that ‘in such cases to allow compensation to the heirs of immoral woman would be highly improper and unjustified’. According to the appellant version, which the Court accepted, he found his wife embracing her paramour. After the paramour fled, the appellant warned his wife against the act but instead of mending her behaviour, she showered abuses on him and vowed to continue with her illicit affairs. As a result, he lost control and killed her. The Court emphatically stated that, even if the wife begs the appellant for pardon and asks for mercy, yet the appellant went ahead and killed her, ‘his conduct will still be mitigated and would not be guilty of murder’.

IV.  Judicial Legislation in the Post 1990 Regime It is interesting to note that, since the incorporation of the Qiṣāṣ and Diyat ­Ordinance in the Pakistan Penal Code, the plea of grave and sudden provocation ceased to have legislative recognition. This means that the erstwhile mitigating factor under the old legal order has been abolished under the new dispensation. In practice however, the readiness with which the lower courts employ this defence is mind-boggling. Judges mostly rely on section 338F of the PPC, which provides for the injunctions of Islam to guide their interpretation and application of qiṣāṣ and diyah provisions as laid down in the Qurʾān and Sunnah. In Federation of Pakistan v Gul Hassan (see chapter 7) the Supreme Court was very forthcoming in discouraging taking the law into one’s hand when it held that: [P]rovocation no matter how grave and sudden, cannot by itself reduce the gravity of the offence of murder. Instead, the relevant issue from the Islamic perspective would be that whether the deceased was indulging in such acts, which would amount to an offence punishable by death under Islamic law? For example, if a man sees his wife committing adultery, an offence punishable by death under Islamic law, and he kills his wife and her paramour in such circumstances, and brings evidence of adultery as per the requisite standard of proof under Islamic law, then he shall indeed be exempt from qiṣāṣ (capital punishment in retribution). However since he should have approached the authorities in such circumstances, rather than taking the law in his own hands, he has committed a crime against the state and may be given any punishment by the state (as taʿazīr). Per Justice Muḥammad Taqi Usmani26

25 

(1987) PLD 312 Lah. Quoted in MH Cheema, ‘Judicial Patronage of Honor Killing in Pakistan: The Supreme Court’s Persistent Adherence to the Doctrine of Grave and Sudden Provocation’ (2008) 14 Buffalo Human Rights Review 51. 26 

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The sequel to this decision, the Qiṣāṣ and Diyat Ordinance, left out the plea of grave and sudden provocation. However, the Supreme Court, in some of its ­judgments in 1992, allowed the use of defence of grave and sudden provocation in very special cases. For instance, in State v Abdul Waheed alias Waheed and Anor,27 the Court made it clear that the defence of grave and sudden provocation is not an exception per se. However, to qualify for mitigation, the accused must prove zina in accordance with the dictates of sharīʿah. This means that he must establish it by four reliable witnesses, otherwise he will be liable to qiṣāṣ. The implication of this decision is to place on the accused the onus of proving that his action falls within the exceptions in line with section 121 of the Qanun-e-Shahadat Order, 1984.28 He is disentitled from getting a mitigated sentence if he fails to discharge that burden and will thus be liable to qiṣāṣ. This was an appeal by the state against the decision of the Special Court. In that case, the Court convicted the respondent and sentenced him to 10 years’ imprisonment for killing somebody he suspected was having illicit relations with his sister. The respondent claimed to have been driven by provocation; as a result, he went to his house and brought a gun with the aim of killing his sister but killed the paramour instead. The trial court believed his version but declared that the deceased was one whose life was not sacrosanct (ghair maʿṣūm al-dam). The Supreme Court disagreed with the learned trial judge and reviewed the sentence upwards by awarding a death sentence. The same Supreme Court, however, dismissed another state appeal in the State v Muḥammad Hanif and 5 others.29 The first accused’s contention was that his deceased brother Muḥammad Ashraf ‘disgraced and dragged his wife’ out of the house. As a result, he was driven by grave and sudden provocation and killed him. The trial court sentenced him to 10 years’ imprisonment, on the ground that the act of the deceased constituted sufficient ground under the injunctions of sharīʿah to warrant a lesser sentence on ground of provocation. The state found this decision unconvincing and thus appealed against it. The Supreme Court dismissed the appeal on the basis that the accused was entitled to the plea of self-defence under the doctrine of qawāmāh in Q4:34. This means that since a husband is empowered to protect his wife against any assault from a third party, if in the course of ­providing such protection, he kills that person, he is legally entitled to plead self-defence. The Supreme Court decisions in these cases are distinguishable. In Waheed’s case, it refused to recognise the defence put forward by the convict as it involved an allegation of zina, holding that the deceased’s life could not be wasted without due process. On the other hand, in Muḥammad Hanif, it recognises self-defence which also extends to defending one’s wife. The basis of its decision declaring the

27 

(1992) PCrLJ 1596. This is the law regulating admissibility of evidence in Pakistan. It was enacted in 1984 to replace the Law of Evidence, 1879 http://nasirlawsite.com/llb3/evidence.htm. 29  (1992) SCMR 2047. 28 

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deceased as ghair maʿṣūm al-dam was for attacking and molesting the appellant’s wife, whom the law empowered him to defend and protect under section 97 of the Pakistan Penal Code. This defence, as rightly said by the Supreme Court, is ­supported by the aḥādīth of the Prophet. Besides, the facts of the case hardly qualify as honour killing, as per the above definition. Unfortunately, this clear distinction between the two appears to give trial courts a leeway to employ the principles established in Muḥammad Hanif in matters where the decision in Waheed’s case is more appropriate. The trial courts appear to be unwilling to cast the burden of proof on the accused whenever he raises the plea of provocation. They simply believe the accused’s version without more and ­mitigate his sentence. The case of Ghulam Yaseen and 2 ors v The State30 is instructive for our purpose. In this case, all the accused persons were close relatives (paternal uncles and a brother) of the female victim one, Mst Bakho, whom they alleged to have seen ‘in an objectionable condition, in the dark hours of the night’ with a man, named Ghulam Akhbar Khan. As a result, they attacked them with assorted weapons and inflicted grievous bodily hurt on Ghulam Akhbar Khan resulting in his death while Mst Bakho escaped with injuries. The Sessions Court convicted them under section 302(b) of the PPC and sentenced them to 25 years’ imprisonment and payment of diyah. On appeal against this judgment, the learned High Court judge, Hon Justice Khalil-ul- Rehman Ramday, in evaluating the facts, found that this was a case of ghairah (honour) which the legislature, probably out of oversight, had o ­ mitted to provide as a defence in murder cases. The judge declared that the accused were eligible to concession on ground of ghairah under the injunctions of Islam. He therefore reduced the sentence from 25 years’ to five years’ imprisonment. According to him, it was reported that when Saʿad b ʿUbādah mentioned to the Holy Prophet (PBUH) that he would kill a person whom he saw near his wife, the Holy Prophet (PBUH) did not forbid him from taking such a course of action nor did the Holy Prophet object to the same.

Indeed, the Supreme Court had recognised the plea of grave and sudden provocation as a defence under the injunctions of Islam in 1996 in Ali Muḥammad v Ali Muḥammad.31 This came about after a lengthy analysis of many decided cases at common law and in Islamic legal literature. The Court held that: ‘Provocation when grave and sudden, would take the matter out of the category of intended or premeditated murder’. However, in this case, the Court was not in agreement with the appellate lower court, which held that the appellant was not liable to punishment and thus acquitted him. The Supreme Court was of the view that the appellant had exceeded his limit when he killed the deceased after he had already overpowered him. The version of the appellant accepted by the trial court was that 30  31 

(1994) PLD 392. (1996) PLD 274.

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he was in his house sleeping in one room and his wife and children were in a separate room. He heard some noise at midnight, so he woke up and went to his wife’s room only to discover that Ramzan (now deceased) was sleeping with his wife. As a result, he killed him. The trial court had earlier convicted the appellant and sentenced him to a jail term and payment of diyah but the High Court overturned it on appeal and discharged him. The Supreme Court disagreed with the High Court and held that this ought to have fallen under section 302 (c) of the PPC as taʿazīr. The fact that the accused had been in prison for about two years since his arrest was, according to the Supreme Court, sufficient to meet the justice of the case. Ali Muḥammad’s case is the precursor to the re-recognition of the plea of provocation by the Supreme Court of Pakistan and indeed the lower courts. For in that case, the erstwhile notable pronouncement of Justice Taqi Usmani on provocation in Islamic law in Gul Hassan’s case quoted above was declared a minority opinion.32 As we shall see in due course, the minority view, which disallows any concession, is in fact the position under Islamic law. Apparently, the plea of sudden and grave provocation has gained ground in the criminal system of Pakistan that it is now the most convenient means of getting a lighter sentence, particularly where the allegation against the victim(s) was zina. For instance, in Muḥammad Saleem v State,33 the Supreme Court was apt to stress that the plea of family honour would have availed the appellant ‘if he had seen the deceased in a compromising position with his close kith and kin residing with him, when it could probably be said that he was deeply charged by emotion and lost his self-restraint and control’. The gist of the case was that the appellant suspected that the deceased had had illicit relations with his aunt, Mst Manzooran. The matter was amicably settled by a jirga about two or three months before he finally killed the deceased. Similarly, in Abdul Zahir and Anor v The State34 and Muḥammad Akram Khan v The State,35 the appellants’ convictions were affirmed relying upon absence of grave and sudden provocation. However, relying on some judicial decisions made barely a decade after the qiṣāṣ and diyah provisions were put into use, some scholars believe that the ­Pakistani judiciary has taken a positive step aimed at dealing with the perpetrators of h ­ onour killing36 and even described the new trend as ‘very proactive’.37

32 

Cheema, ‘Judicial Patronage of Honor Killing in Pakistan’ (n 26). (2002) PLD 558 SC. 34  (2000) SCMR 406. 35  (2001) PLD 96 SC. 36  H Irfan, ‘Honour Related Violence Against Women in Pakistan’ (2008) www.lexisnexis.com/­ documents/pdf/20080924043437_large.pdf at 19; SS Ali, ‘Interpretative Strategies for Women’s Human Rights in a Plural Legal Framework: Exploring Judicial and State Responses to Hudood Laws in ­Pakistan’ in Human Rights, Plural Legalities and Gendered Realities: Paths are Made by Walking (Harare, Weaver Press, 2007) 381–406 at 400–01. 37  Irfan, ‘Honour Related Violence Against Women in Pakistan’ (n 36) at 19; see also Ali, ‘Interpretative Strategies for Women’s Human Rights in a Plural Legal Framework’ (n 36) at 400–01. 33 

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This eulogy was perhaps informed by their observation of the jurisprudence emanating from the Supreme Court, or by a simple comparison of the attitude of courts before and after the coming into force of Criminal Law (Amendment) Act, 2004 (I of 2005). However, a careful perusal of the cases will reveal that these commendations are premature, for it is all a matter of the individual judge’s ­disposition. As such, depending on the appreciation of the fact of a given case, a judge may choose to be lenient to or harsh on an accused, as we shall see later. Some of the seemingly commendable decisions that, by a great deal, may be considered as positive in addressing the gender problem associated with honour killing include the case of Pehlewan and another v State,38 Asiq Husain v Abdul Hameed39 and Muḥammad Siddique v The State.40 Pehlewan’s case deserves special mention in view of the industry exhibited by the High Court hearing the appeal and more importantly, the gender issue that emerged therein. The appellant in this case was the father-in-law of the deceased’s brother. The deceased, Khadera, accompanied his brother on a visit to the appellant’s house. On arrival, the appellant was not at home so they waited for him while his wife, Mst Gul Hira (also deceased) prepared lunch for them. When the appellant returned, they exchanged pleasantries with his guests and his son-in-law left the room to relieve himself, only to come back to find Khadera and Mst Gul Hira in a pool of blood. The appellant on the other hand, was at the scene holding a short gun. When asked, the appellant claimed that he found Khadera in a compromising position with his wife. The appellant was sentenced to death by the trial court, but on appeal the High Court raised some important questions, which cast doubt on the assertion of the appellant as follows: Whether it is possible that Khadera Khan, who had accompanied his brother and come all the way to meet the appellant, could so instantly and easily develop an illicit relationship with a woman, who is none other but the mother of his Bhabhi (brother’s wife). Whether it would not encourage cold-blooded ‘double murder’ in the garb of honour killing and violence against women, despite the fact that in most cases, the act has been misused for gaining property, demanding the hand of a woman of choice, settling old scores and for personal vendetta. Also whether leniency shown by the courts has not substantially increased the killing in the garb of ‘Ghairat’. Whether life can be taken away in Islam and law on the basis of mere accusation or rumours or ­speculations. … Why the society gives honour to offender in such cases and disgrace the victim’s family?

Much as the Court, by these strong words, had demonstrated the desire to wage an all-out-war against honour crimes, the resultant effect of this on the future of women victims is still bleak. This is because as against the death sentence awarded by the trial court for the double murder, the High Court still reduced

38 

(2001) PLD 88 Quetta. (2002) PCrLJ 859 Lahore. 40  (2002) PLD 444 Lahore. 39 

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the sentence to 25 years’ imprisonment for the murder of Khadera Khan. As for the murder of the appellant’s wife, the Court ordered payment of diyah to the legal heirs of Mst Gul Hira, since under section 306(c) of the PPC, intentional murder is not liable to qiṣāṣ ‘where any of the wali of the victim is a direct descendant of the offender’. As observed in chapter 6, the implication of section 306(c) of the PPC is that no court will ever sentence any man to qiṣāṣ for killing his wife as long as he has children with her. The only thing a court can do, at its discretion, is to impose the death penalty by way of taʿazīr punishment on him. The vexed question is whether any of the primary sources of Islamic law supports the provisions the Court relied upon in Pehlewan’s case? The sharīʿah position on section 306(b) and (c) has been discussed in the previous chapter. One point worth noting is that the way courts handle matters relating to honour killing is by no means uniform. Generally, the attitude of courts to honour killing from the analysis of decided cases suggests that husbands who kill their wives on ground of zina tend to get reduced sentences. Equally, any male relative who kills his female relative, be it her father, brother, uncle etc, often enjoys the magnanimity of the court as long as what he alleges was zina and his version of the fact is believed by the court. However, in the second category, the courts are hard on somebody who does a similar act on ground of parental disobedience, as in marrying someone she likes. Similarly, they have shown no leniency to someone who kills a woman for violating social norms like a woman’s failure to transfer her property to a male relative within the family41 or for her refusal to prepare food.42 The case of Muḥammad Siddique v The State43 falls under the second category, and amazingly, the decision was not any different from Pehlewan’s case as far as the issue of gender was concerned. What transpired in that case was that the daughter of the accused married somebody against his wishes. He therefore registered a case of zina against her and her husband (the man believed to have eloped with her). After some years, the accused invited them to his house in what they thought was a move to reach a compromise between them and the accused who originally did not support the marriage. The husband’s father and brother also attended the meeting. It was on this occasion that the accused gunned down his daughter, her husband and the baby they had had during the marriage. The High Court, after taking into cognisance the magnitude of the atrocities committed by the accused, declared unequivocally its disapproval of honour killing, in the following words: A murder in the name of honour is not merely the physical elimination of a man or a woman. It is at a socio-political plane a blow to the concept of a free dynamic and

41 

Muḥammad Ishaq v The State (1992) PLD 187 Pesh. Naheed Hussain v The State (1992) PCrLJ 982. 43  (2002) PLD 444 Lah. 42 

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egalitarian society. In great majority of cases, behind it at play is a certain mental outlook, and a creed which seeks to deprive equal rights to women i.e. inter alia, the right to marry or the right to divorce which are recognised not only by our religion but have been protected in law and enshrined in the Constitution. Such murders, therefore, represent deviant behaviours, which are violative of law, nugatory to religious tenets and an affront to society.44

Finally, the Court invoked the provision of section 338F of the PPC and affirmed the sentence of the death penalty on him under section 302(b) on the ground of fasād fil arḍ for the killing of Muḥammad Saleem (the husband). It also ordered payment of compensation of Rs 54,000 to the heirs of the deceased husband, Muḥammad Saleem. While on the combined effect of sections 302(c) and 306(b), the Court sentenced the accused to 25 years’ imprisonment for the murder of his daughter and granddaughter, being his descendants, and it made no order for ­payment of diyah with respect to them. Even if the principle under section 306(c) is taken as established, Muḥammad Siddique could not get away with his act unscathed, as that would be tantamount to trivialising the worth of human life. It would not deter others from toying with the lives of other people. To that effect, the law imposes payment of diyah on the ascendant responsible for this heinous act. It is noteworthy that the deceased daughter in this case might have heirs. Her mother and her siblings might be alive and the Court ought to have ordered payment to them of her diyah. By this decision, the Court has conveniently denied them their legal rights.

V.  Further Step to Protect Women against Honour Crimes The leniency shown to the perpetrators of honour crimes by the judiciary might have triggered the enactment of the Criminal Laws (Amendment) Act, 2004. In the main, the Act provided a stiffer penalty for honour killing which, to all intent and purpose, it classified as murder. Section 302 of the PPC, which incorporated the amendment, provides: Whoever commits qatl-i-amd shall, subject to the provision of this Chapter be: (a) punished with death as qiṣāṣ; (b) punished with death or imprisonment for life as taʿazīr having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or

44 ibid.

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(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qiṣāṣ is not applicable: Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name of or in the pretext of honour and the same shall fall within the ambit of (a) and (b) as the case may be.

The proviso here was added to nullify the judicial resurrection of the principle of grave and sudden provocation into section 302(c). The 2016 amendment has further dealt a heavy blow to this culture by making life imprisonment as the least punishment to be awarded as taʿazīr if the case is adjudged to be one done on the pretext of honour.45 The above provision is a demonstration of government’s desire to use law as a vehicle for changing a cultural tradition that touches the very fabric of the Pakistani community. The least penalty expected for murder committed ‘in the name or on the pretext of honour’ is a life imprisonment. However, there emerged many contradictory decisions casting doubt on whether the judiciary is complementing the executive in combating the menace. The existence of express provision of law would have meant that the court would take a hard-line stance on all cases involving some element of honour; but in practice, this is far from being a reality. For instance, in Muḥammad Imran and Anor v The State,46 the accused, who was under the illusion that his stepmother had married his father to take hold of his property, went in the company of his friend and killed his stepmother and her sister. The trial court sentenced them to death under section 302(a) of the PPC as qiṣāṣ. On appeal, the sentence was reduced to 20 years. In reducing the sentence, the High Court observed that: [A]lthough family honour to some extent was involved in this case but there was no justification to kill the two females merely on the basis of suspicion. Killing over family honour on provocation has been accepted as an extenuating ground for grant of lesser punishment. In the circumstances of this case we hold that qatl on ghairah is not the same as qatl al-amd. Therefore, conviction under section 302(a) PPC was not justified and the appellant is entitled to some concession.

Similarly, in Zulfiqar Ali v The State,47 the appellate court reduced the death sentence passed against the accused for killing the deceased he alleged to have found in his house at night. The Court awarded life imprisonment and cancelled the diyah ordered by the trial court. Although the prosecution’s case indicated that the deceased was at the accused’s house to retrieve his debt, the appeal court

45  The Criminal Law (Amendment) (Offences in the Name or on pretext of Honour) Act, 2016 http://senate.gov.pk/uploads/documents/1485427831_980.pdf. 46  (2008) YLR 1290 Lah. 47  (2006) MLD 1676.

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accepted the accused’s version of the case as more plausible. The Court acknowledged the fact that the accused did not see his wife and the deceased in the actual act of zina, yet classified the case as one involving family honour. The Court declared the deceased as ghair maʿṣūm al-dam thus, liable to be killed. It observed further that: Family honour killing should be discouraged, but it did not mean that the benefit of mitigation were not to be given at all to the accused in whose house someone had trespassed and invaded privacy to fulfil his lust …

It is amazing how the Court disbelieved the prosecution and accepted the version of the accused who spared his wife in a society that believes women are the source of a family’s honour. Interestingly, the Court did not call the accused’s wife, whom the accused alleged to be in illicit relationship with the deceased, to testify in the matter. The fact that the Court accepted this version could plunge the surviving woman into jeopardy as she too was, by implication, liable to be killed as ghair maʿṣūm al-dam. Her male relatives may choose to kill her for bringing dishonour to their family. Will this not promote anarchy and lawlessness?

VI.  No Religious Justification for Honour Killing This section examines the arguments put forward by the courts in justifying ­leniency to culprits of honour crimes. This is with the aim of refuting them and demonstrating that the arguments were mere attempts to legitimise cultural practices that afford the least value to human life. In Ghulam Yaseen’s case ­(section IV), the High Court stated that even though there is no defence on ground of honour under the new Qiṣāṣ and Diyat Ordinance, the Court reserved the right to invoke the provision of section 338-F of the Pakistan Penal Code. This allows it to take into account the injunctions of Islam under which honour killing deserves mitigation. Among the authorities cited by the Court in reducing the sentence was the ḥadīth narrated by Mughīra that one companion of the Prophet by name Saʿad b ʿUbādah said, ‘if I find a man with my wife, I will hit him with the sharp side of my sword’. The Prophet then said, ‘do you wonder at Saʿad’s sense of ­ghairah? ­Verily, I have more sense of ghairah than Saʿad and Allāh has more sense of ghairaḥ than I’.48

48 M Bukhāri, Sahih al-Bukhāri (The translation of Sahih Bukhāri) (trans M Khan) vol VIII, bk 82 No 829 https://archive.org/details/TheTranslationOfTheMeaningsOfSahihAl-Bukhari-ArabicEnglish9Volumes.

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As rightly observed by the report of Women’s Commission,49 this ḥadīth does not support honour killing; yet, the Court capitalised upon it to create a defence for Ghulam Yaseen and his co-accused. The High Court concluded that, from the above-quoted ahadeeth, it is obvious that a qatl committed on account of ghairat is not the same thing as Qatl-e-amd pure and simple and the persons found guilty of qatl committed on account of ghairat do deserve concession which must be given to them.50

It is pertinent to put the narrative cited in a proper perspective given the serious implications of over-generalisation, thereby giving shelter to any murder committed on account of honour. Ibn Ḥajar al-ʿAsqalāni has extensively addressed this issue and concluded that Imām Bukhāri did not give juristic ruling on committing the act contemplated by Saʿad, but the majority view is that the killer is liable to qiṣāṣ.51 He can only avoid qiṣāṣ if he can prove what he witnessed by evidence.52 Only a few scholars, like Ibn Mawwaz of the Māliki School, allow some concession to an accused in similar circumstances. Their contention is that the remark of the Prophet, ‘Do you wonder at Saʿad’s sense of ghairah?’, conveys an element of approval of Saʿad’s contemplated action by the Prophet.53 By implication, this minority view suggests that the perpetrator of an honour killing may find refuge under this view, which could even allow him to get away with the act with impunity. The High Court of Lahore appears to have been influenced by this minority view when it mitigated the sentence awarded to Ghulam Yaseen and his collaborators. It is submitted that this was an erroneous position on many grounds. Importantly, the majority view of the classical jurists is at variance with this. Indeed, according to the majority opinion that particular phrase capitalised upon by some jurists like Ibn Mawwaz does not in any way imply prophetic approval of honour killing. As such, it will not absolve a person of liability.54 The only area of disagreement among the jurists is with regard to the punishment to be awarded, ie whether the perpetrator will be liable to qiṣāṣ or payment of diyah. Even in that respect, the majority view does not support taking the law into one’s own hands; as such, they opined that the perpetrator is liable to qiṣāṣ.55 Al-Jazīrī argues that the reason why the jurists opt for qiṣāṣ is because it is possible for a person to invite someone to his house to do some work for him only to kill him for a reason best

49  See National Commission on the Status of Women (16 July 2008) Qisas and Diyat Report file:///C:/ Users/User/Downloads/Report_Qisas_Diyat%20(1).pdf at 51. 50  ibid, at 52. 51 AA ʿAsqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri, vol XV (NM Al-Fāriyabi, ed) (Riyadh, Dār al-Ṭaibah, 2005) at 693. 52 ibid. 53  ibid, vol XI at 670. 54  ibid, vol VX at 693. 55 ibid.

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known to him and to later claim that he killed him because he saw the deceased in a compromising position with his wife. A person who is fed up with his wife may kill her and claim he saw her having illicit sex with somebody. For this reason and in order to safeguard the sanctity of life, God ordained that it is mandatory upon the killer to produce evidence as required by law. If he is able to do so he is spared the punishment; and failing which he is liable to qiṣāṣ.56 The fallacy of the decision in Ghulam Yaseen’s case on the legality of honour killing in Islam is even more glaring when facts leading to the pronouncement in the above quoted ḥadīth are considered. It must be stressed that this ḥadīth has been reported differently in different books of traditions. However, Ibn Kathir captures the genesis of this incident as described below: When the verses on qadhf were revealed, which read: (And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors. …) Saʿad b ʿUbādah queried: ‘Is that how it was revealed, O Messenger of Allāh?’ The Prophet said, (O the Ansār, i.e. people of Madinah! Did you hear what your leader said?) They said, ‘O Messenger of Allāh, do not mind him (Saʿad) he is too jealous. By Allāh, he never married any woman save she was a virgin. None of us would dare marry a woman divorced by him because he is so jealous.’ Then Saʿad said, ‘By Allāh, I know that it (the verse) is true and is a divine commandment from Allāh but I was only astonished. If I found some wicked man lying down with my wife I should not disturb him until I brought four witnesses? By Allāh, he would have finished what he was doing and gone before I could get witnesses!’57

Interestingly, a real case came up the next morning involving another companion of the Prophet, Hilāl b Umayyad, who came back from a journey and caught his wife red-handed with Sharīk b Sahma. Hilāl reported the matter to the Prophet saying ‘O Messenger of Allāh, I came to my wife at night and found a man with her, and I saw with my own eyes and heard with my own ears’. The Prophet was upset and he ignored Hilāl. The people around them claimed that based on what was revealed to the Prophet yesterday, Hilāl would be punished for qadhf and barred from giving testimony. Nevertheless, Hilāl remained firm in his conviction and said ‘O Messenger of Allāh! I noticed how upset you are by what I said, but Allāh knows that I am telling the truth’. Thereafter, a revelation came to the Prophet giving detailed guidance on what to do in the circumstances and this formed the basis of mutual imprecation (liʿān). And for those who launch a charge against their spouses, and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness

56  A Al-Jazīrī, Al-Fiqh ʿalā al-Maẓāhib al-Arbaʿa, vol V (Beirut, Al-Maktabat al-ʿAṣriyyah, 2010) at 1143. 57  IU Ibn Kathīr, Tafsir Ibn Kathīr, vol VII (abridged) (trans S Al-Mubarakpuri) (Riyadh, D ­ arussalam Publishers and Distributors, 2000) at 29.

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four times (with an oath) by Allāh that they are solemnly telling the truth; And the fifth (oath) (should be) that they solemnly invoke the curse of Allāh on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) By Allāh, that (her husband) is telling a lie. And the fifth (oath) should be that she solemnly invokes the wrath of Allāh on herself if (her accuser) is telling the truth.58

The Prophet then sent for the wife of Hilāl and he recited the verses to them. He warned them to be truthful and to bear in mind the enormity of the torment of the Hereafter. They testified and invoked individually the wrath of Allāh on themselves if they were lying. Indeed, the woman was reported to have hesitated but later made the following remark when she was about to make the final invocation: ‘By Allāh, I will not expose my people to shame’. After this procedure, the Prophet pronounced their marriage irrevocably dissolved. He further said, ‘If she gives birth to a red-haired child with skinny thighs and thin legs, it is Hilāl’s. But if the child born is curly-haired with thick legs and plump buttocks, then this is what she is accused of’. The child happened to have the latter features. Yet the Prophet remarked, ‘If not for the oaths she had taken, I would have dealt with her’.59 This incident demonstrates that liʿān procedure is the only means of dealing with inter-spousal allegations. The consequence of undergoing this procedure is to bring to an end the marriage contract. Therefore, the marriage stands irrevocably dissolved once the husband swears four times that his allegation was true, and finally invokes the curse of God on him that he was saying the truth. On the other hand, the wife belies him in a similar way, and the fifth time invokes God’s curse on her that she did not do what was alleged. Once it is over, the couple will part ways and any child born subsequent to the liʿān will not be attributed to the man but remains the child of a lone parent, ie the woman. The fact that the outcome of the proceeding apparently exposed the wrongful act of the woman, who would rather risk being tormented in the Hereafter than admitting the offence, did not make the Prophet to pronounce her culpability. Though he acknowledged it, yet the Prophet refused to affiliate the child to Sharīk b Sahma. He rather attributed the child to his mother after the liʿān. He further decreed that people should not stigmatise the child and threatened to punish anybody who did that. In fact, the child grew up bearing his mother’s name and became the Governor of Egypt.60 The husband’s failure to establish his case will lead to the infliction of punishment of qadhf; and if established, failure to rebut the allegation will result in the punishment of zina against the wife.

58 Q24:6–10. 59 

Ibn Kathīr, Tafsir Ibn Kathīr (n 57) vol VII at 30.

60 ibid.

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Treating the perpetrators of honour killing with kidgloves renders irrelevant the above verses. Little wonder, the liʿān procedure is rarely invoked in Pakistan. Besides, it is clear from the judgment in Ghulam Yaseen’s case, that the Court did not fully report the ḥadīth of Saʿad b ʿUbādah. Thus, it ignored the important aspect of the ḥadīth, which would have helped it realise that honour killing is one of the condemnable practices in Islam. The hadith also shows that observance of due process of law is necessary when faced with embarrassing situations as witnessed by Hilāl. The full ḥadīth as reported in the last part of Ṣaḥīḥ Bukhāri is as follows: Saʿad b ʿUbādah said, ‘If I see a man with my wife, I would strike him (behead him) with the blade of my sword.’ This news reached Allāh’s Apostle who then said, ‘You people are astonished at Saʿad’s ghīrah. By Allāh, I have more ghīrah than he, and Allāh has more ghīrah than I. Because of Allāh’s ghīrah, He has made unlawful shameful deeds and sins (illegal sexual intercourse etc.) done in open and in secret. There is none who likes that people should repent to Him and beg His pardon than Allāh. For this reason, He sent warners and givers of good news. There is none who likes to be praised more than Allāh does. For this reason, Allāh promised to grant Paradise (to the doers of good)’.61

In his commentary of this ḥadīth, Ibn Ḥajar argues that the latter part of the ḥadīth is actually conveying disapproval of what Saʿad wanted to do. Stressing that, it demonstrates to us that despite the fact that people flout Allāh’s commands by committing what He prohibits, He does not punish anybody without concrete evidence.62 For that, He sent prophets to warn people against committing sins.63 He quoted al-Qāḍi ʿIyāḍ querying the intended action of Saʿad saying: if Allāh, who is more jealous at protecting His honour than anybody, admits excuses and will not hold anybody without evidence, why should somebody without proof rush into killing another found in such circumstances, ie having illicit relations with his wife?64 The fact that one rushes into killing his wife on suspicion of infidelity, denies her or the ‘assumed paramour’ of all the opportunities available to them under Islamic law. Apart from the actor’s refusal to get the four witnesses required to establish a case of zina, he denies the victim(s) the benefit of other exculpatory circumstances. It is possible that the man coerced the woman into having sexual intercourse. In addition, she might be sleeping or drugged when the man pounced on her. The man on the other hand, might be suffering from insanity, which is a valid excuse that would absolutely exculpate him from liability. It is because of these possibilities that the law always insists on observing due process. Amazingly, notwithstanding all the negative consequences such action might cause to the family of Saʿad, the Prophet insisted on production of evidence.

61 Bukhāri,

Sahih al-Bukhāri (n 47) vol IX, bk 93, No 512. ʿAsqalāni, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhāri (n 51) vol XVII at 382. 63 ibid. 64 ibid. 62 

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Indeed, in this same ḥadīth reported through Abu Hurayra, Saʿad ibn ʿUbadah’s question to the Prophet went thus: ‘What do you think if I find a man with my wife? Shall I grant him a respite until I bring four witnesses?’ The Messenger of Allāh, may Allāh bless him and grant him peace, replied, ‘Yes’.65 This ḥadīth points to the fact that no matter the provocation, one should control his emotion and follow the due process of law by taking the matter before the relevant authority. It is clear from the above that the questioner may have been decrying of injustice meted on him by both the paramour and his wife. If he were to take the law into his own hand and kill them, his action will hardly be detached from emotions, subjectivity and partiality. Hence, he would have acted against the Islamic notion of justice, which requires dispassionate dispensation of justice.66 The story of ʿAli b ʿAbi Ṭalib illustrates this point. ʿAli overpowered a pagan in the battlefield and brought out his sword to slay him, but the pagan spat in his face. ʿAli realised that if he were to slay the man, the intervening act of spitting was likely to influence his action and not the fact that man was an enemy and waging war against Islam. As a result, ʿAli spared the man so as not to be passionate and act on his selfinterest for being personally offended by the man.67 This action supported an authentic ḥadīth that shows power lies in one’s ability to control his emotions. ‘A strong person is one who contains himself amidst anger/provocation’.68 All these authorities support the view of the Supreme Court of Pakistan in Gul Hassan (chapter 7) and Abdul Waheed (section IV). Thus, killing one’s wife on suspicion of zina is a violation of express provisions of the Holy Qurʾān; and it renders worthless the procedure of li’an (mutual imprecation). The fact that there is no opportunity for victims of an honour killing to rebut the allegation of zina leaves many issues unresolved. It is likely the moral upbringing of the woman will continue to be questioned to eternity. If she survives being killed, as happened on many occasions, it is unlikely that the marriage between her and her estranged husband will subsist. The husband may divorce her without undergoing the li’an procedure; and that may degrade her reputation. It is even doubtful if killing of either the woman or the paramour would restore back the so-called ‘honour’ claimed to have been defiled. If the killing of one’s wife or the paramour is not condoned no matter the amount of provocation, killing of one’s female relative is even worse. Of course, a husband has more stake in ensuring the uprightness and moral rectitude of his wife. She is the mother of his children and one in whom he reposes trust. Her illicit act may have very disastrous consequences on him, particularly when one takes

65  A Al-Tarjumana and Y Johnson, Translation of Malik’s Muwatta, vol 43, bk 36, No 36.19.17 www.theonlyquran.com/hadith/Malik-Muwatta. 66  C Eaton, ‘The Concept of Justice in Islam’ http://thebook.org/resource/aoi4.html. 67 ibid. 68  ʿAsqalāni (n 51) vol XVII at 384.

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into account that the children he thought to have fathered are not actually his, but someone else’s. Yet, despite this, the Prophet urged for restraints. This makes the ḥadīth quoted by the learned judge in Ghulam Yaseen’s case irrelevant to the fact before the court. The misapplication of this ḥadīth to the case invariably endorses the culture of a person constituting himself into a legislator, a prosecutor and an executioner, all in one. It is noteworthy that Islamic law makes no distinction between husband, father and stranger in their allegation of zina. Just as the husband must provide evidence, a father or even a stranger who alleged that he killed a man because he saw him in sexual act with his daughter, sister or any lady must similarly produce evidence. Otherwise, he will be liable to qiṣāṣ; and once he produces evidence of zina he will be exculpated.69 The above findings question the validity of the declaration by JND Anderson, Ruud Peters and others on the permissibility of honour killing under Islamic law. It is their contention that there is a consensus of the jurists of all schools of Islamic thought that, a father, brother or husband, as the case may be, is not blameworthy if he kills a female member of his family and/or her paramour on suspicion of zina.70 In the words of Peters: As for men, their honour is impugned by illicit sexual behaviour of their wives or female relatives. Therefore, if a man catches his wife or one of his female relatives in a compromising situation, he is permitted to kill his wife or his relative and her lover, provided that killing is the only way to stop the continuation of the crime.71

Perhaps Anderson and Peters might have reached this erroneous conclusion by relying on some Muslim states’ practice. Some scholars hold that notwithstanding the fact that such concessions are available to men in the Penal Codes of many Muslim states, it was actually borrowed from the nineteenth-century French Penal Code and has nothing to do with Islamic law.72 This means that killing somebody in defence of honour, or what Fadia Faqir calls ‘intra-family femicide’,73 is not an acceptable norm under Islamic law. It also demonstrates that Islamic law does not promote lawlessness and anarchy by authorising people to take the law into their own hands. The consequence of taking the law into one’s own hands in these cases is that the person is not likely to be punished in proportion to what he did. Everybody is under an obligation not to overstep the limits of the law. Therefore, if he kills or injures someone in the name of protecting his honour, he is also

Al-Fiqh ʿalā al-Maẓāhib al-Arbaʿa (n 56) at 1143. N Anderson, ‘Homicide in Islamic Law’ (1951) 13(4) Bulletin of the School of Oriental and African Studies 811–28 at 824; R Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge, Cambridge University Press, 2005) at 26. 71 Peters, Crime and Punishment in Islamic Law (n 70) at 26. 72  Spatz (n 1) at 600. 73  F Faqir, ‘Intrafamily Femicide in Defence of Honour: The Case of Jordan’ (2001) 22(1) Third World Quarterly 65–82. 69 Al-Jazīrī, 70 

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killed or injured. This is because human life is more honourable than a person’s honour. Islamic law does not tolerate wasting people’s lives extra-judicially, and this is reflected in the Criminal Law (Amendment) Act, 2004.

VII.  Debunking other Arguments Justifying Honour Killing Perhaps realising the lack of concordance between the aḥādīth cited in Yaseen’s case with what they are trying to legitimise, the courts, in subsequent cases, have looked for support elsewhere especially from other Islamic sources. In Ghulam Farid v The State,74 the Court found a soft spot in an athar attributed to the second caliph, ʿUmar b Khaṭṭāb. According to the Court, there is justification for judicial leniency to the perpetrators of honour killing since ʿUmar had discharged a person who killed a paramour on an allegation of illicit relation with his wife. In that incident, a mob accosted a man holding a bloodstained sword and brought him to the court of the second caliph, ʿUmar alleging that he had killed their friend. The man confessed to the commission of the act. He claimed, however, that he hit between the thighs of his wife with the sword; if there was anybody between them, he should have himself to blame. Upon hearing this, ʿUmar collected the sword from the man, brandished it and handed it back to him. He then admonished the man to act in the same manner should he witness a similar scenario in future.75 Apparently, the position taken by ʿUmar is suggestive of the fact that a person who offers some excuses such as self-defence, defence of property against intruders and many other available defences deserves some degree of leniency, as also held by the Supreme Court in Ali Muḥammad’s case (section IV). The act of zina is undoubtedly not condoned in Islam. However, the question that readily comes to mind is, given the sanctity of human life in Islam, can it be concluded that what was meted on the paramour was proportional to his act? Does giving a perpetrator absolute defence from liability comply with the position taken by the Prophet when he insisted on observing due process? Can ʿUmar’s decision stand in light of the aḥādīth of the Prophet? How authentic is this athar of ʿUmar? In the first place, it is doubtful if a personality like ʿUmar b Khaṭṭāb would encourage violation of law and the legal process, as the athar seems to suggest. This may have been the rationale behind the position taken by Muḥammad Naṣiruddīn Albāni on this matter. The scholar cites ʿUmar’s decision alongside

74  75 

(1997) PCrLJ 141 Lah. S Sābiq, Fiqh al-Sunnah, vol II (Beirut, Dār Kutub al-ʿArabī, 1977) at 578–79.

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ʿAli’s in a s­imilar case, but makes no comment on the authenticity of ʿUmar’s narrative despite its seeming conflict with the Prophet’s position, we cited earlier. On the other hand, he declares the narration of ʿAli as having trustworthy chain of transmitters.76 It is difficult to understand what Albāni meant by this ambivalent stance. Can we conclude that he accepts the athar of ʿUmar as authentic or that he only reported it because of its relevance under the chapter? His comment on Saʿīd b Musayyib and the disagreement over meeting ʿAli suggests that he is supportive of ʿUmar’s standpoint. A closer look at ʿAli’s narration shows that it is more in accord with the sayings of the Prophet above. For the avoidance of doubt, what happened during the reign of Muʿawiyah b Abī Sufyān as the Governor of Shām was that a man met his wife having illicit affairs with a strange person and killed her or both of them, according to another source. The matter was raised before Muʿawiyah who requested Abū Musa al-Ashʿarī to ask the fourth caliph, ʿAli b Abī Ṭālib on what to do in the circumstances. ʿAli ruled thus, ‘If he (the husband) does not bring four witnesses then let him be completely handed over’.77 Meaning that, the law must take its course. Among the expert legal critics (muḥaqqiqūn), Ibn Ḥajar supports the decision of ʿAli, which view he considers to be in consonance with the overarching objective of Islam. Lending credence to this view, Ibn Ḥajar has quoted Ibn al-Mundhir and Al-Shāfiʿi arguing that there exist many contradictory athars from ʿUmar on the subject matter and they are not reliable, as they all have broken chains of transmission. Specifically, Al-Shāfiʿi declares the position of ʿAli on the subject matter as the only reliable and uncontradicted version.78 Ibn Qudāmah, on the other hand, did not see the two narratives of ʿUmar and ʿAli as contradictory. As a result, he contrasted the two narratives and successfully reconciled them. According to him, what the two decisions signify is that an accused who claims that he kills somebody because he saw him having illicit affairs with his wife should not be believed unless he produces evidence as stipulated under Islamic law. Failure to do so makes the accused liable to qiṣāṣ since his claim is only an allegation.79 He will only be absolved of any liability if the legal heir (wali) of the victim corroborates his version of the story. In which case, he is neither liable to qiṣāṣ nor to diyah.80

76 MN Albāni, Irwāʾ al-Ghalīl fi Takhrīj Aḥādīth Manār al-Sabīl, vol VII (Beirut, Maktabat al-Islāmī,1985) at 274. Note that despite his declaration that the narrators of ʿAli are trustworthy, he made it clear that there is disagreement among scholars on whether Saʿīd b Musayyib met ʿAli b Abī Ṭālib. 77  A Al-Tarjumana et al, Translation of Malik’s Muwatta (n 65) bk 36, No 36.19.18. 78  ʿAsqalāni (n 51) vol XV at 693. 79  AA Ibn Qudāmah, Al-Mughni, vol IX (MR Riḍā, ed) (Beirut, Dār al-Kitāb al- ʿArabi, 1983) at 337. 80 ibid.

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One can appreciate the viewpoint of Ibn Qudāmah when he observes the generality of what happened in the case before ʿUmar. The killer was pursued by the legal heirs (or friends) of the deceased. When asked, they confirmed the culpability of the deceased before the caliph. In Ibn Qudāmah’s analysis, it is discernible that it was the confirmation of the wrongful act of the deceased by no other than his brothers that warranted the release of the culprit by ʿUmar. The legal heirs of the deceased paramour had corroborated the version of the killer. Contrast this with ʿAli’s decision in the second scenario where no corroboration was forthcoming from anybody. As a result, ʿAli ruled that in the absence of evidence he was liable to be executed. Going by Ibn Qudāmah’s analysis, what a judge is supposed to do is to demand corroboration from any reliable source supporting the accused’s narration but not to capitalise on the accused’s version and simply exculpate him or mitigate his sentence. Interestingly, in the cases reviewed above, both the appellate and the trial courts tended to accept the versions of the accused by placing the whole burden of proof on the prosecution against the decision of the Supreme Court in ­Federation of Pakistan v Gul Hassan, which demanded four reliable witnesses from the accused. Notwithstanding the ingenious exposition of Ibn Qudāmah, the reconciliation done would have been appropriate had the two narratives been of equal strength. As we saw earlier, even in the reported aḥādīth of the Prophet, scholars resort to reconciliation only when both narrations are valid. Weak narration cannot be relied upon in making a legal ruling.81 If scholars treat contradictory aḥādīth of the Prophet in this manner, the sayings of other people should have attracted stiffer rules, particularly when they do not conform to the actions of the Prophet himself. It is submitted that the narration of ʿUmar above could not be reconciled with ʿAli’s since they are not on equal degree of reliability. That being the case, the Court should not have relied upon ʿUmar’s narration to either exculpate or mitigate death sentence in matters of honour killing, as applying that principle would only promote lawlessness.

VIII. Conclusion This chapter examined the role of the judiciary in the interpretation of the qiṣāṣ and diyah provisions of the Pakistan Penal Code; and how this aided victimisation of women in the name of Islam. The chapter argued that neither the Qurʾān nor the Sunnah provides a basis for honour killing. The justification comes about

81  M Kamali, A Textbook of Ḥadīth Studies: Authenticity, Compilation, Classification and Criticism of Ḥadīth (Leicestershire, The Islamic Foundation, 2009) at 109, 149–50.

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on two main grounds: first, the employment of selective and/or skewed interpretation of religious sources to legitimise customary practices, and secondly, the influence of the English legal system, particularly the plea of grave and sudden provocation incorporated under section 300 of the Indian Penal Code, 1860. The case study found that justice across genders in this respect might only be achieved if the judiciary reconsiders its interpretation of the Qurʾān and Sunnah that tends only to legitimise cultural practices. Judges must dispassionately employ interpretations that rely on the authentic aḥādīth of the Prophet. A situation where a judge selectively applies a ruling of early scholars that suits him, without taking into account the overall objective of sharīʿah, will only result in demonising Islam as an anarchist and lawless religion. It is therefore suggested that since participation of women in the legislative process of qiṣāṣ and diyah has helped in reducing gender biases from getting legislative endorsement, it will not be out of place to include more women in the judicial process.

9 Case Study of Nigeria I. Introduction This chapter explores the extent to which the classical fiqh discussed in Part I ­influenced the recent Islamic criminal law revivalism, particularly as it affects gender in matters of homicide and bodily injuries in Nigeria. The chapter ­ features an overview of the development of Islamic criminal law in Nigeria and the current regime of Islamic criminal law of homicide and bodily injury since its re-introduction in 1999. It will highlight major issues with gender implications in the Sharīʿah Penal Code within the scope of this book.

II.  Historical Background of Nigeria Between 1861 and 1960, the present entity called Nigeria was a British colony located in West Africa. It is an amalgam of two protectorates, ie Northern and Southern Protectorate and the colony of Lagos formed in 1914, which finally gained independence in October 1960. It is a federation of 36 states and a federal capital territory, Abuja, and is the most populous nation in Africa, with recent UN estimates putting the figure at 182,202,000, making it the seventh biggest country in the world in terms of population.1 Although the official census figures did not indicate the religious inclination of Nigerians, the US Central Intelligence Agency has put the percentage as follows: Muslims: 50 per cent; Christian: 40 per cent; and others 10 per cent.2 The federal arrangement was necessitated by diverse ethnic nationalities numbering over 250,3 and findings of linguists in 1979 shows that the diversity is wider than thought, as they identified 394 ethnic groups in ­Nigeria.4 1  United Nations Department of Economic and Social Affairs/Population Division (2015) World Population Prospects: The 2015 Revision, Key Findings and Advance Tables https://esa.un.org/unpd/ wpp/Publications/Files/Key_Findings_WPP_2015.pdf. 2  CIA, ‘World Factbook’ www.cia.gov/library/publications/the-world-factbook/geos/ni.html. 3  ibid; Bureau of African Affairs, ‘Background note: Nigeria’ www.state.gov/r/pa/ei/bgn/2836.htm. 4 YB Usman, ‘The Sokoto Caliphate and Nation Building’ (paper presented at the International Conference on the Sokoto Caliphate and its Legacies, Abuja, Nigeria, on 14 March 2004). https://dawodu.com/usman2.htm.

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Some sources put it as 500.5 Muslim followers of the Sunni Māliki School are dominant in the Northern part of the country, and they also have significant presence in the Southern part of Nigeria, particularly, the South West. The Southern part is predominantly populated by Christians. It is therefore logical to say that unlike Pakistan, the Islamic criminal law applicable in Nigeria is not of national application but limited only to 11 Northern states, viz: Borno, Bauchi, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe and Zamfara. It is usual to include Gombe State among the Northern sharīʿah states but recent research has proved that the state never implemented the Sharīʿah Code.6 Like any other colony, at independence Nigeria was bequeathed the criminal law regime of its colonial masters. However, the diverse religious leanings made it impossible to have a uniform criminal code for the country. This might not be unconnected with its colonial history, as it is on record that when the B ­ ritish conquered the Sokoto Caliphate in 1903, the northern traditional institutions resisted the colonial rule fearing that it would interfere with their religion. Such resistance was a serious obstacle to the colonialists whose rule was ‘not limited to physical conquest but extended to bringing the conquered people under their cultural hegemony’.7 The then Governor General, Lord Lugard promised noninterference in their religion and recognised the Muslim law of the Maliki School as applicable in all native courts in the region.8 Indeed, Nigeria was the only British colony where Islamic criminal law was allowed to apply hand-in-hand with the English-styled Nigerian Criminal Code albeit with strict administrative and judicial ­scrutiny.9 Acknowledging Lugard’s policy of accommodation, Anderson observed that, until recently, the case of Northern Nigeria was, indeed, almost unique, for up till less than twenty years ago, this was the only place outside the Arabian peninsula, in which the Islamic law, both substantive and procedural, was applied in criminal litigation-­ sometimes even in regard to capital offences.10

However, this peculiarity was lost at the eve of independence, following Sir Henry Willink’s Report of the Commission appointed to enquire into the Fears of ­Minorities, and the subsequent recommendation of the Report of the Panel of

5 

CIA, ‘World Factbook’ (n 2). P Ostien, AS Garba and MU Abubakar, ‘Nigeria’s Sharia Courts’ in P Ostien, AR Mustapha and MS Umar, Sharia Implementation in Northern Nigeria Fifteen Years On: Six Research Reports and an Overview (forthcoming). 7  MA Ajetunmobi, Shariʿah Legal Practice in Nigeria 1956–1983 (Ilorin, Kwara State University Press, 2017) at 31; M Tabiu ‘Sharia, Federalism and Nigerian Constitution’ (unpublished paper presented at International Conference on Sharia, organised by Nigerian Muslim Forum, London, United Kingdom, 14 April 2001). 8  J Kenny, ‘Sharīa and Christianity in Nigeria: Islam and a “Secular” State’ (1996) 26 Africa Journal of Religion in Africa 338–64 at 341. 9 Ajetunmobi, Shariʿah Legal Practice in Nigeria 1956–1983 (n 7) at 32. 10  ibid, at 119; see also N Anderson, Law Reform in the Muslim World (London, The Athlone Press, 1976) at 27. 6 

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Jurists Appointed by the Northern Region Government to Examine the Legal and Judicial Systems of the Region. The Panel of Jurists observed that in all heterogeneous countries where Muslims, Christians and Pagans live together the trend has been to allow personal laws of the various religious groups to govern their civil matters, while a code is enacted to deal with criminal matters, in order to ensure certainty and uniformity.11 The Panel recommended the adoption of the then Sudanese Penal Code for Northern Nigeria.12 This was done with some modifications and since then the Penal Code has remained to this date the major penal legislation for all the states in the Northern part of Nigeria. The Sharīʿah Penal Codes introduced later means that in some states in the North two penal laws co-exist and operate at the same time. The entrenchment of relatively firm democracy in Nigeria in 1999 opened a new chapter in the Muslims’ struggle for the realisation of their goal of being governed in accordance with the sharīʿah dictates. This agitation suffered a major setback in the first three decades of the post-colonial era; as such, realisation of this goal is the cumulative result of Muslims’ frustration dating several years. Little wonder, the re-introduction of sharīʿah enjoyed overwhelming support from almost all Muslim quarters in Nigeria. The move to resuscitate the Islamic criminal system was championed by the then civilian governor of Zamfara State, Alh Ahmad Rufai Sani (Yeriman Bakura), who in June 1999 constituted a committee to study ways and means of implementing sharīʿah in the state. This was immediately followed by the sharīʿah declaration on 27 October 1999 in Gusau, the capital city of Zamfara State and backed by an enabling law, ‘Sharia Courts (Administration of Justice and Certain Consequential Changes) Law, No 5 of 1999’. With this declaration, other states soon followed suit. Thus, the declaration resulted in restoring the Islamic criminal law regime abolished at independence, ie 1 October 1960. Indeed, research has shown that this move had triggered some Muslim elements in the southern part of Nigeria to agitate for sharīʿah not only in personal matters but also in criminal matters.13 It is worthy of note that the process of enacting the sharīʿah codes was not elaborate as in Pakistan. Of course, that is to be expected as everything was done within the boundaries of respective federating units. In each of the 11 sharīʿah states a committee was set up to examine the practicability of an Islamic penal regime within a pluralistic society. Interestingly, all the processes including consultations, sensitisation and enactment were concluded within a span of two years,

11  See Report of the Panel of Jurists Appointed by the Northern Region Government to Examine the Legal and Judicial Systems of the Region, 1958 at 33 in P Ostien (ed), Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook, vol I (Ibadan, Spectrum Books, 2007). 12  ibid, at 34. 13  AK Makinde, ‘The Institution of Sharia in Oyo and Osun States of Nigeria 1890–2005’ (PhD ­thesis submitted to the Department of Arabic and Islamic Studies, University of Ibadan, Nigeria, March 2007) available at www.sharia-in-africa.net/media/publications/the-institution-of-sharia-inoyo-and-osun-states-nigeria/makinde-thesis.pdf.

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ie from 1999 to 2001.14 The Codes were not widely discussed by stakeholders, and even where discussed, the issue of constitutionality and their application in heterogeneous society overshadowed the debate, as the implications of their provisions for genders were not the issue. It was all a matter of consolidating the gain which every Muslim was waiting for. Women were not represented in any of these committees, save in Bauchi State where they included one Hajiya Aisha A Jaafar in a committee of 29 members.15 Although not represented on the Kano State committee, women in their thousands, under the auspices of the ‘Women in Islam’ organisation, had openly protested against the snails-pace with which the state was handling the issue of sharīʿah implementation.16 Notwithstanding the enthusiasm demonstrated earlier, research conducted in 2016 after barely 15 years of sharīʿah implementation shows that apart from the 2005 changes made in Zamfara State where the Sharīʿah Penal Code, 2005 was repealed, no appreciable progress was recorded along that line as states were now reluctant to develop the sharīʿah system through periodic review of legislation. It was only Niger State that enacted new legislation after some events that had left the state helpless owing to the absence of express provisions in its Penal Code to prosecute a Muslim who married more than four wives at the same time. Consequently, the new Niger State Sharīʿah Penal Code Law 201417 and Sharīʿah Criminal Procedure Code Law 201418 were enacted and both signed into law by Governor Muhammad Babangida Aliyu on 18 March 2014.19 Earlier on in 2000, Niger State simply amended its existing secular Penal Code by inserting or deleting certain provisions with a view to accommodating the wishes of Muslims within the existing legal framework.20 Other states are only paying lip-service to the sharīʿah project. For instance, Katsina State has a Sharīʿah Penal Code but no procedural code since the year 2000. Similarly, Borno State has no Sharīʿah Criminal Code and even the Sharīʿah Penal Code signed in 2003 was never printed and made public for implementation. It is the same story in Yobe State which enacted the Sharīʿah Penal Code and the Procedure Code in 2001; although in 2012 there was a move to review the Codes, nothing positive had really come out of that exercise as at 2016.21 With this development, we are left with only nine states with Sharīʿah penal laws applicable in the Northern part of Nigeria with no amendment so far. 14 IN Sada, ‘The Making of Zamfara and Kano State Sharia Penal Codes’ in Ostien, Sharia ­Implementation in Northern Nigeria 1999–2006 (n 11) ch IV, pt I, vol IV at 28. 15  See Report of Bauchi State Sharia Implementation Committee in Ostien (n 11) ch II, pt II, vol II at 7–170. 16  Sada, ‘The Making of Zamfara and Kano State Sharia Penal Codes’ (n 14) at 25. 17 Sharīʿah Penal Code, 2014 Niger State Gazette No 13, vol 19, 18 March 2014. 18 Sharīʿah Criminal Procedure Code Law, 2014 Niger State Gazette No 14, vol 19, 18 March 2014. 19  The research team obtained copies of these laws from the Attorney General of Niger State in January 2016. 20  See Niger State Penal Code (Amendment) Law 2001, Niger State Gazette No 8, vol 25, 9 March 2000, B29–B36. 21  See Ostien, Garba and Abubakar, ‘Nigeria’s Sharia Courts’ (n 6).

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III.  The Legal Framework of Qi·sā·s and Diyah The resuscitation of Islamic criminal law regime in Nigeria in 1999 was an important turning point in the Muslims’ struggle for the actualisation of their goal to live in accordance with the dictates of the divine law. The fact that the new legal regime has state-wide application has created an uneasy relationship in the N ­ igerian federation. There are many constitutional and political hurdles bedevilling the development of substantial jurisprudence in matters of homicide within the framework of the new dispensation, as we shall see in due course. Nevertheless, the few decided cases available as well as relevant provisions of the Code will allow for analysis of the state of affairs. It must, however, be noted that, being a federation, there is no uniform code for sharīʿah in Nigeria, as each of the 11 states has its own code, although mostly modelled after the Zamfara State Sharīʿah Penal Code, though with slight variations. Effort was made by the C ­ entre of Islamic Legal Studies, Ahmadu Bello University, Zaria (CILS, ABU Zaria) to develop a harmonised version of the code for adaptation by all the states but only Zamfara State enacted it into law in 2005, thus replacing the Sharīʿah Penal Code of 2000.22 In this book, reliance is made on the Sharīʿah Penal Code, 2005 for obvious reasons. Apart from Zamfara State being the pioneer state to enact the law, the law is available online.23 Also, the harmonisation project initiated by CILS, ABU Zaria may one day yield positive outcome if the remaining states agree to adopt it in future. So far Niger State has adopted it with huge additions and modifications. Therefore, reference may be made to other states’ codes where necessary. Offences of homicide and bodily injury are contained in Chapter IX of the Zamfara Code, 2005 under the heading Qiṣāṣ and Qiṣāṣ related offences. The relevant sections for our purpose are sections 198, 199, and 214–219 dealing with homicide and bodily injury respectively. Sections 198 and 199 read: Section 198: Except in the circumstances mentioned in section 203, whoever being a mukallaf causes the death of a human being by an act with the intention of causing death or such bodily injury as is probable or likely to cause death; or in a state of fight, combat, strife or aggression, which is not intrinsically likely or probable to cause death; or if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequences of the act or of bodily injury which the act was intended to cause, commits the offence of intentional homicide (qatl al-‘amd).

22 

Zamfara State Law No 5 of 2005 (Zamfara Code, 2005). Sharia Debates in Africa Project of University of Bayreuth, Germany provides a very resourceful sourcebook edited by Phillip Ostien on Sharia in Nigeria and can be accessed via: www. sharia-in-africa.net/. 23 The

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Section 199: Whoever commits the offence of intentional homicide shall be punished with death; or where the relatives of the victim remit the punishment in (a) above, with the payment of diyah; or where the relatives of the victim remit the punishment in (a) and (b) above, with caning of one hundred lashes and with imprisonment for a term of one year: Provided that in cases of intentional homicide by way of ghīlah24 or ḥirābah, the punishment shall be with death only.

As for grievous injury, the law creates three classes of bodily injuries, viz: 1. voluntarily causing hurt;25 2. voluntarily causing grievous hurt;26 and 3. unintentionally causing grievous hurt.27 Grievous hurt falls under any of the following categories: 1. emasculation; 2. permanent deprivation of the sight of an eye, of the hearing of an ear, of the power of speech, taste, smell or sound mind; 3. deprivation of any member or joint; 4. destruction or permanent impairing of the powers of any member or joint; 5. permanent disfiguration of the head or face; 6. fracture or dislocation of a bone or tooth; and any hurt which endangers life or which causes the sufferer to be in severe ­bodily pain or unable to follow his ordinary pursuits.28 Anything outside these categories falls under ordinary hurt. Ordinary hurt if involuntarily caused does not call for retribution or diyah. Where intentionally caused, the offender will be liable to diyah, in addition to six months’ imprisonment or caning or both.29 For intentionally causing grievous hurt, retribution or diyah applies, as per the tariffs provided in schedule B to the Code. In addition, the offender will be liable to imprisonment, caning, or both. However, where the grievous hurt was unintentional only payment of diyah applies.30 Schedule B catalogues various forms of bodily injuries and their corresponding tariffs as follows: PART A: Cases that warrant penalty of qiṣāṣ. 1.

The intentional causing of death.

24  Ghīlah means killing someone for his money after treacherously bringing him to an isolated place. 25  Zamfara Code, 2005 (n 22), s 218. 26  ibid, s 219. 27  ibid, s 220. 28  ibid, s 215. 29  ibid, s 218. 30  ibid, ss 219–220.

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The intentional severing or dismembering of joints or limbs such as: a. the arm or any joint thereof even of the phalanges of fingers; b. the leg from the pelvis even of the phalanges of the toes; c. the eye that is possessed of the power of sight; d. the part of the nose formed of cartilage; e. the ear; f. the lip; g. the testicle; h. the labia majora and minora of a female; i. the tongue; j. the tooth; k. the breast of the male or female even if it be the nipple thereof; l. the finger and toe nail if gouged out intentionally; m. defective joints or members that are lame or infirm because of (i) old age; or (ii) act of God; or (iii) previous injury before the case at hand; n. the penis, be it the shaft or the glans; and o. the buttock of the female.

PART B: Cases that warrant payment of full amount of diyah. 1.

Mistaken impairing of the functions of both members or limbs that are paired, such as both: a. hands; b. legs; c. eyes, or the useful eye in the case of the one-eyed person; d. lips; e. ears; f. breasts; g. testicles. 2. Mistaken severing or dismembering of joints and limbs enumerated under Part A of this Schedule. 3. Where the right to exact qiṣāṣ falls in the cases enumerated under Part A of this Schedule. 4. Dismembering or destruction of the function of an organ or joint that is single and not paired, such as: a. the nose; b. the tongue whether it be from the base, or a part thereof if it prevents speech; c. the penis even if it be from the glans. 5. Destruction of the function of senses without dismembering such limb, or without necessarily disfiguring such limb or organ, such as: a. sight; b. smell; c. hearing; d. speech; e. taste; f. sensation; g. sound mind.

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PART C: Cases that warrant triple payment of the full diyah. A victim is entitled to the full diyah compensation up to three times for one injury if that injury amounts to the loss of three faculties where each of the faculties lost is capable of earning the full diyah. PART D: Cases that warrant payment of half of the full diyah. 1. 2.

Where one organ or member out of a pair is severed or dismembered or impaired intentionally and the right of qiṣāṣ is remitted; or caused to lapse; and Where one organ or member out of a pair is severed or dismembered or impaired by mistake or accident.

PART E: Cases that warrant payment of one-third of the full diyah. 1. wounds to the head that reach the tissues under the skull (ma’mūmah); 2. wounds that bore deep into the abdomen whether from the front or the rear (jā’ifah); 3. the lower lip. PART F: Cases that warrant payment of one-tenth of the full diyah. 1. 2.

each finger; each toe.

PART G: Cases that warrant payment of one-twentieth of the full diyah. 1. 2. 3. 4.

a phalange of the thumb or big toe; the tooth; the wound that exposes the bone (mūḍihah); causing miscarriage of child in the womb.

PART H: Cases that warrant payment of one-thirtieth of the full diyah. The diyah for a phalange of the finger or toe shall be one-thirtieth of the full diyah. PART I: Cases that warrant payment of three-twentieths of the full diyah. 1. 2.

wounds that fracture a bone of the head or face (hāshimah); wounds that cause a compound fracture to the bone of the head or face (munaqqilah).

PART J: Cases that do not warrant payment of diyah but are subject to computation of damages only (ḥukūmah). 1.

plucking out of the hairs of the scalp, beards, eyebrows and eye lashes, if they fail to regrow; 2. cutting off of the shaft of the penis if the victim had already suffered severance of the glans thereof and had received diyah for that previous offence; 3. plucking out of the finger or toe nails if the act was done by mistake or accident. 4. causing the fracture of a rib or thigh bone; 5. cutting off of the buttock of the male; 6. causing the dribbling of urine through the vagina of a woman; 7. destroying the sixth (extra) finger or toe if it is limp or inactive; 8. wounds that do not expose the bone if they heal after the offence.

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It is worth noting that, like in Pakistan, there is no gender disparity both in loss of life and bodily injury from the provisions of the law including the contents of the schedule. But as will be discussed further here, there are breakthroughs in the Code, which are beneficial to women, just as there are emerging issues prejudicial to them.

A.  Gender Equality in Homicide and Bodily Injuries There is unanimity among the Sunni schools of thought on equal treatment of sexes in intentional homicide. The Zamfara Code, 2005 adheres to the agreed principle; and the Sharīʿah Courts defer to the same, in practice. Gender equality in homicide is demonstrated in the case of Commissioner of Police v Sani Yakubu Rodi,31 a case of multiple murders decided by a Sharīʿah Court in Katsina State. In this case, the accused, Sani Yakubu alias Rodi, was alleged to have killed one Zainab Yusuf Hamza in her matrimonial home along with her two children. In convicting the accused for the offence, the Court laid foundation for its judgment by making extensive reference to textual authorities that frown at causing the death of a human being without just cause. This shows that the penalty for such heinous act is the same; it is immaterial whether the murdered victim was a man or a woman. Rodi’s case attracted the attention of human rights organisations the world over, given that it was the first death penalty sentence executed under the new dispensation in Nigeria.32 The accused did not admit the murder and there were no eyewitnesses to the actual act. The only available evidence was the statements by some people who claimed to have seen the accused struggling to get down from the roof of the house where the incident took place, and his clothes were soaked in blood. His unsuccessful attempt to get out necessitated his return to the house where another witness discovered him in the same state. Although the accused confirmed that he was actually found in the house in such highly suspicious circumstances, this evidence cannot ground a conviction under Islamic law, as it was not a conclusive evidence. Of course, this evidence, to all intent and purpose, will satisfy the requirement of English law on circumstantial evidence, since it was direct and leading to one conclusion that Rodi was the killer. It is, however, not enough proof under Islamic law. The court can only convict on such inconclusive though strong evidence constituting incriminating indications (lawth) after qasāmah proceeding is conducted. In this proceeding, the male agnatic relatives of the deceased are to swear 50 times in support of their strong suspicion against

31 

CR/225/2001(Katsina State) unreported. Amnesty International, ‘The Death Penalty and Women in Nigeria’ (February, 2004) file:///C:/ Users/User/Downloads/afr440012004en.pdf. 32 

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the accused that the latter was the culprit. Once this is done, they may demand retribution or compensation.33 In this case, the Court not only demanded the oaths but also insisted on doing it in the central mosque. The husband of the deceased woman, who also doubled as the father of her two slain children, and his brother, opted to take the oaths. It was after this long procedure that the Court finally came to the guilty verdict and sentenced the accused to death. However, this qasāmah proceeding is neither in the Sharīʿah Penal Code nor in its Procedure Code but a matter of evidence. The legality or otherwise of this procedure, however, falls outside the scope of this book.34 The point made is that such procedure is undertaken irrespective of the gender of the victim, and once it is fully observed, the court decides accordingly. It also demonstrates the significance attached to human life under the system in the sense that the court will not convict the accused without concretising the suspicion with oaths, even if there is strong circumstantial evidence. The oath may scare people from bringing frivolous allegations and may result in withdrawal of the action by relatives of the deceased. In bodily injury also the lower courts have demonstrated the need to deal with both sexes equally. In Adamu Husaini Maidoya’s case,35 the Upper Sharīʿah Court, Bauchi ordered the dismemberment of the left leg of the convict for deliberately removing the leg of his wife, Amina. Sometime in August 2002, the convict suspected his wife of illicit affairs, and as a result, he intentionally caused such a grievous bodily injury on her. His appeal failed as the Sharīʿah Court of Appeal of Bauchi State disallowed his appeal and affirmed the trial court’s decision. ­Unfortunately, the convict has remained in prison custody since then, as of early 2016, Mr Maidoya was still awaiting execution of the sentence.36 This bureaucratic attitude has rendered the right of the victim to retribution worthless, as none may be exacted. At the end of the day, Mr Maidoya may be seen as a victim of state-sanctioned abuse of power because of his detention; thus, he could win the ­sympathy of human rights organisations. The fact that there is no synergy between the Sharīʿah states after the euphoria that greeted the early years of Sharīʿah implementation, makes it unlikely for one state to be aware of developments in another state. If that cooperation has been maintained perhaps there would not be situation like that of Maidoya who remains incarcerated for over a decade. It is interesting to note that the Niger State Sharīʿah Procedure Code, 2014 has provided an ingenious way of tackling the matter such

33  R Peters, ‘Murder in Khaybar: Some Thought on the Origin of the Qasama Procedure in Islamic Law’ (2002) 9(2) Islamic Law and Society132–67 at 133. 34  For elaborate discussion on the origin, legality and forms of Qasāmah, see Peters, ‘Murder in Khaybar’ (n 33). 35 Cited in GJ Weimann, ‘Judicial Practice in Islamic Criminal Law in Nigeria—A Tentative ­Overview’ (2007) 14 Islamic Law and Society 240–86 at 254. 36  See Ostien, Garba and Abubakar (n 6); and for more on Maidoya’s case, see also P Badru and BA Sackey, Islam in Africa South of the Sahara: Essays in Gender Relations and Political Reform (Plymouth, Scarecrow, 2013) at 238.

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that within two years maximum a convict knows his fate. The superintendent of prison is mandated under the Law to inform the Chief Judge of Niger State that six months had elapsed since the convict was sentenced to death, amputation or qiṣāṣ and it has not been carried out. The Chief Judge, in consultation with the Grand Kadi, will forward his recommendation to the Governor within three months of receipt of the information from the superintendent of prison. Then, the Governor must, within three months of receipt of the recommendation, either order execution or exercise his power of prerogative of mercy under the ­Constitution.37 If the Governor takes no action within the three months, he is deemed to have remitted the sentence, and this gives the convict the power to apply to court for remission of the sentence.38 For sentence of qiṣāṣ, it will mean that retribution will not apply but rather the judge may impose diyah as assessed by him.39 Niger State has done well to protect the convict from suffering unnecessarily. However, the victim has lost all the powers accorded him under Islamic law. We noted in Part I that in qiṣāṣ-related offences individual rights override state’s rights. Yet here no input of the victim was required as the Governor may remit the sentence or simply refuse to act, thereby allowing the court to impose diyah as it deems necessary. Obviously, the Maidoya case might end up like this if it were in Niger State. Amina, the wife of Maidoya and the victim may be at the mercy of the judge, who may be free to fix any amount if no tariff regime is provided for him. Ordinarily, the state should shoulder the responsibility of paying the diyah if the Governor refuses to act, at least to give effect to the Qur’anic provision that gives the upper hand to the right of individuals over the state. At any rate, a study conducted on behalf of the European Commission in 2001 reveals the near absence of gender bias in matters of homicide and bodily injury under the Sharīʿah Penal Codes.40 The report was, however, quick to note the high probability of gender bias in the practical application of the law.41 This gender egalitarian feature is discernible from provisions like section 198 in which the loss of woman’s life was equated with the loss of man’s life, as both of them are covered under the word ‘human being’. Such feature is similarly visible in section 49 of the Code, which empowers women with the right to demand retribution and to compound the offence, either by complete waiver or by accepting diyah. The catchword, for our purpose, is ‘human being’, which undoubtedly comprises both genders. Classically, gender equality in this sense is only observed where the act that caused the death was intentional and retribution is demanded; in that case, a man is killed for killing a woman and vice versa. In matters where

37 Sharīʿah

Criminal Procedure Code (n 18) s 259(1), (2) and (3). ibid, s 259(4) and (5). 39  ibid, s 260(1) (c). 40 R Peters, ‘The Reintroduction of Islamic Criminal Law in Northern Nigeria’ (2001) 39 http://rezaei.typepad.com/hassan_rezaei/files/islamic-criminal-law-nigeria_en.pdf. 41 ibid. 38 

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diyah is demanded, loss of a man’s life entails high compensation. This departure from the Māliki law principles has not been explained either in the law or in the legislative debate, as there was hardly any deliberation during the passage of the law. It seems apt to state that Māliki law principles were abandoned either so as not to act ultra vires the Constitution or because it was thought to be against the core sources of Sharīʿah. On this note, Ruud Peters observes: None of the laws was introduced with an explanatory memorandum, clarifying and ­justifying the provisions and the choices that were made during the legislative process. They all seem to have been drafted in great haste. This explains the poor legislative ­quality of the codes with lapses such as faulty, sometimes even incomprehensible wording, incorrect cross references, omissions and contradictions. In a number of instances it seems that incomplete wording or omissions were included deliberately, as the legislators foresaw constitutional problems.42

As highlighted earlier, before the enactment of the law, various committees were inaugurated by individual states and they conducted preliminary studies and advised the various governments on how best to approach the implementation of the law.43 The committees were mostly concerned with enlightening the public on the new law. Interestingly, the issue of differences of diyah across genders was never discussed. Therefore, it would be safe to conclude that the departure may not be unrelated to the fact that the driving force was obedience to the Constitution, as rightly observed by Rudolph Peters above. This seems particularly true given the much-touted belief that the Maliki School of thought is the only applicable Islamic law in the Nigerian courts.44 The Nigerian Constitution frowns at gender discrimination among the myriads of other forms of discrimination. Gender discrimination is also against the international human rights regime like International Covenant on Civil and Political Rights (ICCPR)45 and Convention on the Elimination of all Forms of Discrimination against Women (CEDAW),46 to which Nigeria is a state party. It is not just a fundamental objective of state policy, as provided under section 15(2), but is also a fundamental right the infringement of which can be challenged in a court of law. This is the combined effect of sections 42 and 46(1) of the CFRN, 1999, which provide as follows: 42. (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or

42 

ibid, at 15. Sharīʿah Implementation Committee Reports and Related White Papers in Ostien (n 11) vol II. 44  Alhaji Ila Alkamawa vs Alhaji Hassan Bello & Anor (1998) 8 NWLR (pt 561)173. 45 Ratified by Nigeria on 13 September 1972 http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-4&chapter=4&lang=en. 46 Ratified by Nigeria on 13 June 1985 http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-8&chapter=4&lang=en. 43  See

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restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions. 46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

The then Attorney General and Commissioner for Justice of Zamfara State, Alh Ahmad Bello Mahmud, had corroborated what Rudolph Peters said that the new criminal law regime was neatly grafted to ensure there was no violation of the Constitution. He stated that, as a prelude to the implementation, the state had to take into consideration many factors including the Constitution, so that ceaseless litigation will not truncate the new legal regime.47 The process involved the striking of a balance between observing the sharīʿah dictates on the one hand, and the Constitution on the other, since the power to enact the law was derived from the Constitution. As such, it was only logical that the constitutional requirements are observed. Suffice it to state that, in practice, the egalitarian tone of section 198 of the Sharīʿah Penal Code may not necessarily translate into according equal status to women by the interpreters of the law, as we shall see in chapter 10.

B.  Equal Right to Legal Redress in Homicide Cases Another breakthrough in the new regime is the empowerment of women to seek legal redress in matters of homicide. This comes about because of the open-ended definition given to the term ‘legal heir’ (walī al-damm) to ‘include male agnatic heirs, daughters, full sisters, paternal aunts and consanguine sisters’.48 The move appears to be a major step aimed at de-hierarchisation of Māliki School principles on legal redress in homicide cases. Under the classical Māliki law, a hierarchy is created, in that the right to demand redress first devolves on the closest adult male agnatic relatives in order of priority. Female relatives only exercise that power in the absence of closest male relatives, or where the relationship between the deceased and the male relative is remote compared to the female relative.49 For instance, a daughter of the deceased will have the upper hand over the deceased’s

47  AB Mahmud, ‘On the Adoption and Implementation of Sharia Legal System in Zamfara State’ in Ostien (n 11) 171–76 at 174. 48  Zamfara Code, 2005 (n 22) s 49. 49  R Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge, Cambridge University Press, 2005) at 45.

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brother (ie her uncle), but she cannot exercise such right in the presence of the son of the deceased (her brother) or the father of the deceased (her grandfather). Similarly, the Zamfara Code, 2005 does not contain yet another juristic principle requiring endorsement by Head of State or Governor in cases where a female relative, in the exercise of her right under the law of homicide, chooses to pardon the accused. For the classical jurists, such authoritative endorsement was sine qua non to the validity of the pardon.50 The implication of this open-ended definition is enormous, in that it affords a female relative the right to push her demand without the need for a male relative. Whether such a move can be socially endorsed remains to be seen. At least, the Pakistan experience shows that in the exercise of this right it is in the best interest of women to seek the permission of their male relatives. Equally worth asking is whether in practice the institution of a homicide case, by say a daughter, is likely to succeed where the only close male relatives of the deceased remain adamant in pressing the demand. This ought not to create any problem but the attitude of judges of clinging to the madhhab’s dictates, as we shall see in due course, suggests that it is unlikely to be entertained. Drafters of the law may have been inspired by the application of sharīʿah in other jurisdictions operating different schools of thought. This is because the Māliki School recognises gender-based hierarchisation of a deceased’s heirs, but no difference exists in the other Sunni schools, as we saw under the case study on Pakistan. Giving heirs of the deceased the authority generally, regardless of gender, ensures justice to all as none of them can be said to incur more loss than his/her co-heir as a result of the demise of their relative. This move is particularly necessary in this age when extreme individualism is becoming the norm. The hierarchy could have been appropriate in a society where there exists a strong bond of family and tribal ties, as was known during the pre-Islamic period, where male members had the responsibility of protecting the entire members of their clan. A situation where a person lives far away from his immediate family members with little or no contact at all makes it less likely for the classical doctrine to work. It also shows some progressive thought might have been put in the drafting process, by viewing the Code as a legal document that will be in accord with modern form of social intercourse. This calls into question, whether a spouse, being a legal heir, could also qualify in seeking redress in the event the other partner is killed. At least, the case of Commissioner of Police v Sani Yakubu (alias Rodi) (section III.A) appears to suggest that. Alhaji Yusuf Hamza, who was the husband of the deceased woman and the father of her two children, was the actual complainant in that case. It was also on that basis that the Court proceeded with the case and even demanded oaths from him and one other person who was not a legal heir to either the deceased woman or her children.

50 ibid.

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C.  Removal of Defence of Grave and Sudden Provocation Another noticeable feature of the Zamfara Code, 2005 is its non-recognition of the plea of grave and sudden provocation. It is noteworthy from the outset that honour crimes are not common in Muslim Northern Nigeria. Of course, cases of such nature sporadically happen but there would hardly be any leniency from the Sharīʿah Court given Nigeria’s jurisprudential leanings to the Māliki School, as we saw in the case of Adamu Husaini Maidoya (section III.A). Treatment of this case would have been different under the conventional Penal Code since it recognises the plea of grave and sudden provocation in line with the English legal tradition.51 The stance of the Māliki School on this plea had given the colonial authority a serious problem, as the position was at variance with English law. For instance, a homicide case that should have received a lesser penalty if adjudicated by an English judge, often attracted a stiffer penalty before Emir or Alkali courts. Any homicide case adjudged by the Emir’s Court as deliberate would necessitate a capital punishment unless the legal heirs of the deceased victim demanded monetary compensation or forgave the culprit, irrespective of the latter’s motive. Some of these cases may well be conveniently classified as manslaughter under the English Code operational in the region, particularly where an element of provocation was established. Notwithstanding the special treatment accorded Islamic criminal law by the colonial administration, allowing it to apply side by side with the English Criminal Code, the uneasy relationship between it and the English legal system remained evident during the colonial days. The British colonial government started deliberate policies of secularisation of legal institutions and gradual transformation of the Islamic law regime.52 The British colonial administration started the secularisation policy in 1903, which blossomed in the 1940s, as discernible from the attitude of English appellate courts to the decision of the native courts in homicide cases.53 The year 1946 witnessed a dramatic event that paved the way for the gradual phasing out of, or at least, watering down of the influence of Islamic criminal law in the Northern region. In the case of Bornu NA v Magudama Abatcha,54 the West African Court of Appeal was faced with a homicide appeal in a case decided by

51  See s 222 of the Penal Code Law (1960), c 89, Laws of Northern Nigeria, 1963, which provides, inter alia, that, culpable homicide is not punishable with death ‘if the offender, whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation’. Note that each state now has its own code. eg the Penal Code Law, c P3 Laws of Jigawa State of Nigeria, 2012. 52  Tabiu, ‘Sharia, Federalism and Nigerian Constitution’ (n 7). 53  AH Yadudu, ‘Colonialism and the Transformation of Islamic Law in the Northern States of ­Nigeria’ (1991) 32 Journal of Legal Pluralism 103–39 at 114–17. 54  W.A.C 2326 (unreported) cited in JN Matson, ‘The Common Law Abroad: English and ­Indigenous Laws in the British Commonwealth’ (1993) 42(4) The International and Comparative Law Quarterly 753–79.

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the Emir’s Court in accordance with Islamic law. The majority decision upheld the trial court’s decision relying on section 10(2) of the Native Court Ordinance, 1933, which empowered the Emir’s Court to administer Islamic law and to impose appropriate punishment in accordance with that law. This did not go down well with Justice Ames who dissented, despite the legislative authority relied upon by the majority. Justice Ames held that the native law, in the circumstances, must give way to the English Code. In an emotion-laden judgment, Justice Ames fired the first salvo arguing thus: Can it be the law of this large British Protectorate … that in many part of it a man can be sentenced to death for what is shown by evidence to have been at the most manslaughter and not murder? … Mohammedan law has no privileged position; it prevails, where it does prevail, because it is there the local law and custom.55

In the subsequent year, the same West African Court of Appeal in Tsofo Gubba v Gwandu NA56 endorsed the minority view of Justice Ames in dealing with conflict between native law and English law, by giving the latter overriding influence over the former. What was prescribed was that the native court, (including the Emir’s and Alkali) may entertain any criminal matter, including those contained in the English Criminal Code, but must not impose punishment beyond that provided for under the Code.57 The accused in this case was arraigned before the Native Court Grade ‘A’ (Emir of Gwandu’s Court) on the allegation of homicide where he claimed that he killed his victim because he saw him having sexual intercourse with his wife. Notwithstanding his excuse, which may satisfy an English judge to reduce his sentence from murder to manslaughter, the Emir’s Court rejected his plea and sentenced him to death. His appeal to the West African Court of Appeal succeeded on the ground that the Emir Court’s judgment was inconsistent with section 4 of the English Criminal Code which provides: ‘No person shall be liable to be punished in any court for any offence except under the express provisions of the Code or some other Ordinance’.58 Following this lead, the Native Courts (Amendment) Ordinance, 1951 was passed to give effect to the judgment of the West African Court of Appeal. The Federal Supreme Court initially decided that even when the decision of a native court would have been decided differently by the English court the decision should not be disturbed.59 However, it made a dramatic turn when it overruled itself in a consolidated appeal against the decision of the Sultan of Sokoto’s Court in M ­ allam

55 ibid. 56 

(1947) 12 W.A.C.A. 141. Report of the Panel of Jurists Appointed by the Northern Regional Government to Examine the Legal and Judicial System of the Region in Ostien (n 11) vol I at 5. 58  AK Rashid (ed), Islamic Law in Nigeria: Application and Teaching (Lagos, Islamic Publication Bureau, 1986) at 80. 59  Jalo Tsamiya v Bauchi Native Authority (1957) NRNLR73 FSC and Fagoji v Kano Native Authority (1957) NRNLR 84 FSC. 57 

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Mamman Tungar Maizabo and others v Sokoto Native Authority.60 The Federal Supreme Court ruled that an appeal court can substitute or order a retrial where a native court convicted the accused under the Maliki law and there was evidence that should have supported a defence of provocation in a trial of murder under the English Criminal Code. This development amounted to what SK Rashid equates to, ‘an almost total abolition of Islamic criminal law’61 in Northern Nigeria. On the eve of independence, there was panic within the ethnic and religious minorities’ quarters all over Nigeria on what might befall them upon the British Government’s departure. Northern minorities, in particular, were apprehensive that Islamic criminal law might apply to everybody, irrespective of their religious affiliation. The region might, in their words, ‘swing back towards Islamic conservatism and autocratic rule of emirs upon attaining independence’.62 Consequently, the Northern Regional Government commissioned a high-­ profile Panel of Jurists headed by Sayyed Muḥammad Abu Rannat (the then Chief Justice of Sudan) to advise, inter alia, on how best to reform the plural legal system of the region in a way that could avert conflict between competing legal systems. The Panel was mandated to borrow a leaf from the book of other countries like Libya, Pakistan and Sudan, where Muslims and non-Muslims live side by side.63 The recommendations of this Panel were a major turning point on the future of Islamic law in Northern Nigeria, as it marked the end of the application of Islamic criminal law in the region. A new Penal Code was enacted (still in force in the North), which displaced both the Maliki Law and the English-styled Northern Nigerian Criminal Code in operation before independence.64 This legal reform, which entailed forgoing the Islamic criminal law, was made sine qua non for the region’s self-determination. Nothing could have explained this better than what is contained in the memoir65 of the then Premier of Northern Region Sir Ahmadu Bello (Sardauna of Sokoto), where he says: It was borne upon us that these legal and judicial reforms would have to be carried out if the self-governing region was to fulfil its role in the federation of Nigeria and command respect among the nations of the world … Finally, there are the commercial and industrial interests, mainly financed by capital brought into the country from abroad, which we are doing our best to encourage and foster.66

60 

FSC/5/1957 reported in (1957) 1(2) Journal of African Law 137–42. Islamic Law in Nigeria (n 58) at 80. 62  See Report of the Commission Appointed to Enquire into the Fears of the Minorities and the Means of Allaying them, 1958 (otherwise known as Willink Commission, named after its Chairman Sir Henry Urmston Willink 1958, vol IV, www.adakaboro.org/thewillinkcomm. 63  See ‘Report of the Panel of Jurists Appointed by the Northern Regional Government to Examine the Legal and Judicial System of the Region’ in Ostien (n 11) vol I at 27–45. 64  Penal Code Law, 1960, c 89, Laws of Northern Nigeria, 1963. 65  Sir Ahmadu Bello, My Life (London, Cambridge University Press, 1962). 66  Quoted in AH Yadudu, ‘Colonialism and the Transformation of the Substance and Form of Islamic Law in the Northern States of Nigeria’ (1991) 9(1) Journal of Law and Religion 17–47 at 29, fn 43. 61 Rashid,

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This historical antecedent must have informed the removal of the plea of grave and sudden provocation from the Zamfara Code, 2005, since it was the non-­ recognition of this English law principle by the Sharīʿah Courts that triggered the secularisation policy, as discussed above. The gender implications of this plea and its relation to honour crimes have been discussed in the previous chapter dealing with Pakistan, as such no further discussion is intended here.

IV.  Provisions of the Code Detrimental to Women The pass mark accorded Zamfara Code, 2005 with respect to its gender neutrality should not however dissuade us from highlighting its downside as far as the issue under review is concerned.

A.  Hurt Caused by Husbands Not Punishable Hurting someone as per the provision of the Code is generally actionable if the person chooses to pursue it before the court. Amazingly, a wife is exempt from exercising such rights against her husband. The Code excludes any hurt caused by husband to his wife as long as it does not amount to what the Code defines as grievous hurt.67 The drafters might have adopted this provision by assuming that it corroborates the provision of the Holy Qurʾān relating to wife’s disloyalty (nushūz). This is as provided thus: As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all).68

Circumstances on the reason for revealing Q4:34 indicate that the bottom line was to prevent the Prophet from punishing a certain man for slapping his wife.69 The verse was revealed in relation to the case of Saʿad b al-Rabī b ʿAmr and his wife, Ḥabībah bint Zayd b Abī Zuhayr. Saʿad slapped his wife, Ḥabībah, and her father took her to the Prophet and narrated to him what happened thus: ‘I married my daughter to him and gave her to his bed yet he slapped her!’ The Prophet ordered that she retaliates the slap. It was when the sentence was about to be executed that Q4:34 was revealed, compelling the Prophet to withdraw his verdict,

67 

Zamfara Code, 2005 (n 22), s 77(1)(d).

68 Q4:34. 69 

M Al-Ṭabari, Jāmiʿ al-Bayān fi Taʾwīl al-Qurʾan, vol VIII (AM Shākir, ed) (Beirut, Muʾassasat al-Risālah, 2000) at 291; M Mahmoud, ‘To Beat or Not to Beat: On the Exegetical Dilemmas over Qurʾān 4:34’ (2006) 126(4) Journal of the American Oriental Society 537–50 at 544.

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and said: I wanted one thing and God wanted another.70 Mahmoud Mohammed also cites the example of the treatment meted on Asmaʾ bint Abubakar, the daughter of the first caliph, who was also wife of Zubayr b Awwām (RA), as per her claim: ‘I was the fourth wife of al-Zubayr b Al-Awwām. When he became angry with any of us, he would beat her with a peg (mishjab) till it broke’.71 Wife-beating is a phenomenon that has engaged jurists in debates, particularly in relation to its scope and mode. However, there is hardly any denial of its existence in the Holy Qurʾān.72 These two instances show that beating did occur, and from the responses of the Prophet he was not at home with it, hence he ordered retaliation. However, as Islamic principles are gradually entrenched, an outright ban on wife-beating may distort the social balance of gender hierarchy. To this end, Q4:34 appears to be the beginning of regulating such already culturally embedded practice. It started by limiting the discipline only to situations of nushūz, ie disloyalty or disobedience, and a clear procedure was created aimed at ensuring reconciliation without necessarily resorting to beating. To jurists like Al-Ṭabari the term nushūz should be interpreted to refer only to circumstances where the wife refuses to yield to her husband’s sexual advances without more. Meaning that other actions of hers like say refusal to prepare food, fetch water or even pick up children from school may not amount to disloyalty envisaged by this verse. N ­ otwithstanding this novel idea of limiting the scope of the word nushūz, Al-Ṭabari does not seem comfortable with the literal meaning given to one of the steps provided by Q4:34, ie to refuse to share their bed, after admonition failed to make her mend. His suggestion is that the meaning of ‘refuse to share bed with them’ should mean to detain them at home and tie them to their matrimonial bed. His reasoning was that she is already disloyal by depriving him of sex, and if the solution to the problem is to prevent the husband from sharing the matrimonial bed with her then it will be counterproductive, as the wife may be comfortable with this. Al-Ṭabari is not alone in holding this opinion. Other jurists like Al-Zuhri (742 AD), who are obviously in the minority, give husbands an almost free hand to do what they want with their wives. They went as far as exculpating a husband from liability to qiṣāṣ for grievous hurt caused to her. According to this school of thought, a husband is only liable when death results; even in that case, he may only be liable to diyah.73 Of course, the suggestion of Al-Ṭabari above did not go down well with Ibn Al-ʿArabi, who sees the suggestion as too harsh and unbecoming of a jurist of Al-Ṭabari’s calibre.74 According Ibn Al-ʿArabi, the ḥadīth relied upon by Al-Ṭabari was gharīb (rare and unusual as it was narrated by single narrator).

70 

MA Ibn al-ʿArabi, Aḥkām al-Qurʾān, vol I (Beirut, Dār Kutub al-ʿIlmiyyah, 2003) at 533. Mahmoud, ‘To Beat or Not to Beat: On the Exegetical Dilemmas over Qurʾān 4:34’ (n 69) at 546. For elaborate discussion on the issue, see Mahmoud, ibid. 73  M Al-Ṭabari, Jāmiʿ al-Bayān fi Taʾwīl al-Qurʾan (n 69), vol VIII at 292. 74  Ibn al-ʿArabi, Aḥkām al-Qurʾān (n 70) at 537. 71 

72 

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Thus, if Al-Zuhri’s position was adopted the likes of Maidoya would have no case to answer. At any rate, Prophetic aḥādīth clearly show that the provision of Q4:34 does not give someone a free ticket to be violent to his wife as some jurists have argued. When the Prophet was asked, he said light beating that does not hurt. One of his companion, ʿAbdullah b ʿAbbās followed it up by defining this to mean a symbolic beating by using objects like a toothbrush (siwāk).75 Therefore, what Islam envisaged is light beating but it has never sanctioned the violence meted on women like flogging. It is thus interesting how the Zamfara Code gives a blank cheque to husbands unless the act qualifies as grievous hurt. Acts such as these must have prompted the Prophet to make many condemnatory remarks against such practices. On one occasion, he is reported to have said: ‘Do not beat your wife like you beat your camel, for you will be flogging her early in the day and taking her to bed at night’.76 The fact that there was no evidence of the Prophet beating any of his wives, despite occasional misunderstanding in his household, points to the fact that wife-beating is highly discouraged. The Prophet’s oft-quoted saying related by al-Tirmidhi and al-Ţabarāni supports this: ‘The best among you are those who are best to their family, and I am the best of you to my family’.77 The unsettled question here remains, whether the saying of the Prophet can be taken as, what Mahmoud calls ‘virtual abrogation’ of the Qurʾanic ruling on wife-beating.78 According to Mahmoud, as long as the ‘limitation strategy’, which enjoys overwhelming support of jurists, past and present, remains the norm, domestic violence will continue to be experienced. The only way of avoiding this is by evolving a modern consensus that emphasises virtual abrogation of wife-beating.79 Exempting the hurting of the wife in such a broader sense leaves women vulnerable to the highhandedness of men. The state is encouraging the action which the Prophet discouraged using very harsh words, despite the fact that Qurʾān has used it as a measure of last resort to prevent the institution of marriage from total collapse. The implication of this provision is that, a husband who side-tracks the procedure prescribed in the Qurʾān, in the event of disloyalty by his wife (nushuz), simply gets away with it. His action is only blameworthy if it qualifies as grievous hurt within the meaning of the Code. Any act that causes ‘bodily pain’, ‘disease’ or ‘infirmity’ is merely a hurt,80 which falls short of the requirement of section 115 and is, thus, legally speaking, excused.

75 

ibid; see also Mahmoud (n 69) at 538. S Quṭb, Fī Ẓilāl al- Qurʾān (In the Shade of the Qurʾān), vol III (trans MA Salahi et al) (Leicester, The Islamic Foundation, 2001) at 116. 77 ibid. 78  Mahmoud (n 69) at 550. 79 ibid. 80  Zamfara Code, 2005 (n 22), s 214. 76 

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The fluidity and weightiness of words used such as ‘bodily pain’, ‘disease’ and ‘infirmity’ suggests, for instance, that temporary deprivation of eyesight by ­pouring, say, pepper in the wife’s eyes will go unpunished, since it falls short of permanent deprivation. Similarly, the husband may not be liable for temporary deprivation of food or even locking his wife in their matrimonial home as a corrective measure for her disobedience. One wonders whether such acts qualify or can be characterised as ‘symbolic’ or ‘light’ as striking someone with a toothbrush. In view of this, it is submitted that section 77(1)(d) of Zamfara Code, 2005 ought not to have been codified.

B.  Non-recognition of the Role of ʿAqilah We noted in our discussion on classical stipulation that jurists employed the ʿāqilah institution to balance the gender disparity created in monetary compensation. However, such institution is not provided for in the Zamfara Code, 2005 but the earlier Zamfara Code, 2000 made reference to it and defined ‘ʿāqilah’ as ‘agnatic relatives of the killer who are responsible jointly for the payment of diyah each according to his capacity’.81 As far as I am aware, there was no legislative debate preceding this change. It may however be speculated that the removal may have been done on the understanding that since both men and women are equally rated under the Code, for the purposes of diyah, there was no point having such an institution. Another possibility is that it was simply abandoned because it is impracticable to have such a solidarity group in today’s world, at least, in the classical sense as defined under the 2000 version of the Code. It can also be contended that the legislature may not even be aware of this removal, since the 2005 version was drafted by the Centre for Islamic Legal Studies Ahmadu Bello University Zaria as a harmonised version intended to be adopted by all the sharīʿah states of which only Zamfara State did in 2005. It is submitted that retaining the ʿāqilah institution in its classical fashion or jettisoning it altogether, as in Zamfara State, is mere reflection of literalism. In both instances, drafters fail to appreciate the social utility such an institution can achieve if it is created on another framework of social solidarity, as discussed in Part I. It is high time other forms of solidarity and collaboration are exploited to ensure realisation of the welfarist element of the institution. The citizenship solidarity paradigm, suggested in Part I, provides a good basis for reconstruction of ʿāqilah in the modern world.

81 

Zamfara Code, 2000, s 51.

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V. Conclusion This chapter examined the provisions of homicide and bodily injury across genders under the Islamic criminal law regime of Nigeria with a view to evaluating the influence of classical fiqh on it in relation to genders. What emerged is that at the legislative level, there is a near total departure from the classical fiqh as many formulations that favoured male gender have been modified to reflect the modern echoes of gender equality. What is not clear is whether the departure was intended to observe the clear provision of the divine sources or whether it was done in deference to the constitutional provision. However, the chapter highlighted some areas in the Code that are prejudicial to women such as exculpating husbands from judicial action for injuries caused to their wives. After thorough analysis of juristic views in this regard, it is obvious that ‘wife-beating’ being touted as violence against women, is strictly speaking a symbolic act of disapproval of wife’s action. It is suggested that the Zamfara Code should be amended to criminalise any beating that goes beyond light beating as defined by the Prophet and his companions. It is further suggested that a wife’s disloyalty should be limited only to a refusal to have sexual intercourse with the husband. The chapter equally highlighted how institution of ʿāqilah was deliberately removed from the Zamfara Code without any prior legislative debate. The significance of this institution was never considered as a literalist approach was adopted without regard to the paradigm shift of solidarity and mutual assistance. This state of affairs is a reflection of the nonchalant attitude exhibited by the political class to the development of the Islamic criminal law regime.

10 Judicial Insensitivity to Gender Issues I. Introduction Nigeria shares common colonial heritage with Pakistan; as such, its legal system bears striking resemblance with Pakistan. Notwithstanding this, the cultural orientation of each country determines how the received legal system applies therein. In chapter 8, we saw how cultural baggage crept into formal legal institutions which ultimately gave these cultural practices some aura of religiosity or appearing to have the sanction of Islam. In this chapter, the judicial attitude to genderrelated issues in criminal matters is examined with a view to analysing how men and women fare before the courts applying the Islamic criminal code in Nigeria. One must quickly point out that unlike Pakistan which has a uniform penal code nation-wide, the state-wide application in Nigeria and the relationship between the lower courts and the superior courts of record deprive the general public of the opportunity of knowing the true position of Islamic law on many gender-related matters.

II.  Structure of Courts in Nigeria The Constitution of the Federal Republic of Nigeria, 1999 (CFRN, 1999) creates the Supreme Court as the final appellate court.1 It is closely followed by the Court of Appeal, which entertains appeals from the other superior courts of record such as the Federal High Courts, High Courts of States and Federal Capital Territory, Sharīʿah Courts of Appeal2 and Customary Courts of Appeal.3 Constitutionally, Sharīʿah Courts of Appeal (SCA) and Customary Courts of Appeal (CCA) are to be established in any state that wants them.4 Their ­jurisdiction

1 

Constitution of the Federal Republic of Nigeria, 1999, s 233(1). The court is called “Sharia Court of Appeal” in the Constitution. I have used the title ‘Sharīʿah’ for purposes of consistency. 3  ibid, s 240. 4  ibid, s 275(1) and s 280(1). 2 

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is appellate and supervisory, and limited only to personal law and customary law respectively.5 The CFRN, 1999 however, allows respective state legislative houses room to extend the jurisdiction of the Sharīʿah Court of Appeal and Customary Court of Appeal.6 On the jurisdiction of SCAs for instance, section 277(1) of the CFRN,1999 provides: The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State (my emphasis), exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal Law which the court is competent to decide in accordance with the provisions of subsection (2) of this section. (2) For the purposes of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide (a) any question of Islamic personal Law regarding a marriage concluded in accordance with that Law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant; (b) where all the parties to the proceedings are Muslims, any question of Islamic ­personal Law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding of an infant; (c) any question of Islamic personal Law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim; (d) any question of Islamic personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a ­Muslim who is physically or mentally infirm; or (e) where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.

However, in 1999, the jurisdiction of the SCAs was extended to entertain c­ riminal appeals, although many scholars faulted the extension.7 The High Court, on the other hand, has original, appellate and supervisory jurisdiction in all matters criminal and civil, save in appeals involving matters of personal laws or customary laws, as these are matters under the jurisdiction of the SCA and CCA.8 It is only through the High Court of a state or of the Federal Capital Territory Abuja that criminal cases reach the apex court. This extension of the jurisdiction of the SCA has created a constitutional logjam, as it hinders convicted persons processed through the Sharīʿah Courts from enjoying their fundamental right to fair trial to its fullest, thereby curtailing the right of convicts to exhaust all available avenues of

5 

cf ss 277 and 282. ibid, s 277(1). AA Oba, ‘The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction’ (2004) 52(4) The American Journal of Comparative Law 859–900. 8  CFRN, 1999, s 272(1). 6  7 

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189

appeal provided under the Constitution.9 By implication, this has denied Muslims the opportunity of getting sound and profound judicial pronouncement from the Supreme Court, or at least, the Court of Appeal, on issues relating to Islamic criminal law, thus hampering the jurisprudential development of the new regime. The states, on the other hand, are constitutionally empowered to create lower courts like Magistrate Courts, Customary Courts and Area Courts/Sharīʿah Courts, via legislation by state assemblies.10 Under the new dispensation in the sharīʿah states, the Upper Sharīʿah Court is, by law, empowered to entertain criminal cases carrying capital sentences like homicide, adultery, etc to the exclusion of any other lower court.11 Appeals from the Upper Sharīʿah Court’s decision in both civil and criminal matters now lie to the Sharīʿah Court of Appeal of the state as per the extended jurisdiction accorded the latter by the laws of states.12 Before 1999, criminal appeals from the Upper Area Court used to be entertained by the High Court of the state. The flow of cases from the lower court to the apex court in Nigeria is illustrated below:

Supreme Court of Nigeria

Court of Appeal

High Court of State/Federal Capital Territory

Federal High Court

Magistrates’ Court

Sharīʿah Court of Appeal

Upper Area Court/Upper Sharīʿah Court

Customary Court of Appeal

Customary Court

Area Court/ Sharīʿah Court

Figure 10.1: Structure of Courts in Nigeria

9 MA Oretola, ‘Criminal Jurisdiction of Sharia Courts and the Problem of Appeals’ (paper presented at the All Nigeria Judges Conference, Abuja, 16–20 November 2009); Oba, ‘The Sharia Court of Appeal in Northern Nigeria’ (n 7). 10 CFRN, 1999 (n 1) s 6(5)(k). 11 Sections 12–14 and app A to the Sharia Criminal Procedure Code, Laws of Zamfara State of Nigeria No 18 of 2000. 12 See Zamfara State Sharīʿah Court of Appeal (Amendment) Law, 2000.

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With this as a backdrop, it is pertinent to examine how the courts implement the Islamic criminal law regime in practice across genders. This is necessary given the postulation of gender bias in its application made in the European Commission’s report cited earlier. What follows here is the analysis of some of the few available cases decided by the Sharīʿah Courts. It must be emphasised that there is no ­pronouncement by any superior court of record on homicide cases brought under the Zamfara Code, 2005 or any Sharīʿah Code at all, given the constitutional logjam that affects the flow of criminal cases through the Sharīʿah Court of Appeal. Our analysis therefore relies on the decisions of the inferior courts. Added to this limitation is the fact that cases of this magnitude are difficult to come by. According to Gunnar J Weimann, in his research on Islamic criminal cases in the 12 Northern states of Nigeria covering a period of five years (2000–04), only six recorded cases of homicide and bodily injury were tried before the Sharīʿah Court, of which only two involved a male and a female.13 Analysis of the decisions vindicates the European Commission as the inferior court judges demonstrate lack of awareness of or insensitivity to gender issues.14 This is discernible from their lack of trust in the codified law and belief in the authoritativeness of fiqh literature.

III.  Consequences of Undermining State Legislation As noted above, the Code maintains gender parity in both murder and bodily injury, as against the classical stipulation as elaborately discussed in Part I and as seen in Rodi’s case. It is also made clear that the issue of half diyah comes into play only when diyah is demanded. Evidence of judicial indifference to the Code is exemplified in the case of Alh Musa Gangare v Adamu Aliyu.15 This was a direct complaint filed before the Higher Sharīʿah Court of Tsafe in Tsafe Local Government of Zamfara State. The gist of the case is that when the accused/defendant was driving his vehicle on the highway at high speed, he negligently hit the complainant’s daughter, named Binta Musa. The victim was crossing the highway that passes through their village, Fegin Mahe, and as a result, she died on the spot. The complainant filed a complaint demanding payment of diyah of his daughter from the accused. The Court found no difficulty in pronouncing the accused guilty, since unintentional homicide of this nature is a strict liability offence requiring only proof

13  GJ Weimann, ‘Judicial Practice in Islamic Criminal Law in Nigeria- A Tentative Overview’ (2007) 14 Islamic Law and Society 240–86 at 285. 14  R Peters, ‘The Reintroduction of Islamic Criminal Law in Northern Nigeria’ (2001) http://rezaei. typepad.com/hassan_rezaei/files/islamic-criminal-law-nigeria_en.pdf at 39. 15  CR/TS/24/2000 (Zamfara State) (unreported).

Consequences of Undermining State Legislation

 191

of the physical element. Besides, the accused admitted his guilt and the ­medical report confirmed that the act of the accused was the cause of Binta’s death. The trial judge of the Higher Sharīʿah Court referred to both sections 200 and 201 of the Zamfara Code, 2000, and accordingly ordered payment of diyah. In justifying his decision, the judge also made copious reference to some authoritative books of Māliki School, like Qawānīn al-Fiqhiyyah, to support the above provisions. It is noteworthy that these provisions of the Code to which he referred were gender-neutral. For clarity the provisions are reproduced here: Section 200: ‘Whoever being a mukallaf causes the death of any other person by mistake or accident, or by doing a rash or negligent act is said to commit unintentional homicide.’ 201: ‘Whoever commits the offence of unintentional homicide shall be punished (a) Where the death was caused by mistake or accident, with payment of diyah; or (b) Where the death was caused by a rash or negligent act, with payment of diyah, a term of imprisonment which may extend to six months and shall also be liable to caning which may extend to fifty lashes.’

The wordings of the Code show that ‘of any other person’ is all-encompassing. However, in awarding the diyah, the judge superimposed the classical ruling as contained in Qawānīn al-Fiqhiyyah, as the basis of his judgement. According to the judge, this authoritative book of Māliki School provides as follows: ‘For a ­Muslim woman, her diyah is half that of a Muslim man’. Accordingly, he declared that on that date when he was to deliver the judgement, ie 16 May 2000, the diyah of a man in Nigerian currency was N3,700,060 (three million seven hundred thousand and sixty naira). Therefore, the diyah of the deceased Binta would be half that amount, which was N1,850,030 (one million eight hundred and fifty thousand and thirty naira). It is interesting that while the judge, on the one hand, had acknowledged the Zamfara Code, 2000 as embodying the dictates of the divine law by referring to its provisions, on the other hand, he seemed to doubt the accuracy of the Code by his refusal to apply its provisions. Ordinarily, had there been no codified law, as in matters of Muslim personal law in Nigeria, the decision of the judge would surprise no one. However, the fact that the Code he applied stipulated payment of diyah and its quantum in homicide cases, causes one to wonder what could have informed the judge’s decision in this manner. Section 59 of the Code defines the quantum of diyah in accordance with the classical law as ‘one thousand dinar, or twelve thousand dirham or 100 camels’, and no reference made to the gender of the victim.16 There appears to be a lack of orientation on the part of the Sharīʿah judges to enable them to appreciate the differences in the application of codified and uncodified laws. Judges of the Sharīʿah Courts in Nigeria are accustomed

16  Note the changes in the definition under the Zamfara Code, 2005 where diyah is defined as ‘a fixed amount of money paid to a victim of bodily injury or to the deceased’s legal heirs in homicide cases’.

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to applying ‘raw legal principles’ of substantive and adjectival laws in matters ­involving Muslim personal law. There is no codified personal law, and this practice has been in place in Nigeria since the pre-colonial days. The CFRN, 1999 does not provide for codification of personal laws, but requires codification of offences, which must be defined before infringement can be said to have occasioned.17 The judge in this case may have been carried away by this prolonged practice and simply ignored the written code in determining the diyah of the deceased girl. It is equally possible that the judge treated this as if it were a civil matter, as he seemed so engrossed in seeing to it that the wrong done to the complainant was remedied. He did not consider the duty of the state to ensure the safety of lives and property of the public. Section 201(b) of Zamfara Code, 2000 relied upon by the judge, provided for a sentence of imprisonment of up to six months and caning, in addition to payment of diyah. At least, that would deter others from plunging into recklessness and toying with other people’s lives.

A.  Non-involvement of Āqilah In classical fiqh it was commonplace to involve ʿāqilah in payment of diyah in cases of unintentional homicide. The Zamfara Code, 2000 made provision for this. It was expected that the court would involve them as that would most likely assure the complainant of payment since the quantum demanded was more than one third of the accused’s diyah. The fact that the accused admitted the act may have been the reason why no allusion was made to ʿāqilah in the judgment. There appears to be nothing wrong in employing the assistance of ʿāqilah in this regard going by the nature of the case. This was a case of a car accident in broad daylight and was ultimately confirmed by a medical report. The accused’s admission or lack thereof, amidst compelling evidence, may not affect the guilty verdict in this case.

B.  Exhibition of Jurisdictional Hunger In addition to the apparent anomalies in the substance of this case, there was also the problem of jurisdiction. Going by the provision contained in Appendix A to the Zamfara Code, 2000, a Higher Sharīʿah Court lacks the jurisdictional competence to entertain a case of this nature. Indeed, the lowest court with such powers was the Upper Sharīʿah Court.18 A situation where a judge arrogates to himself a universal jurisdiction to determine any issue without recourse to the limit provided by law shows nothing other than naked jurisdictional hunger.

17  18 

CFRN, 1999 (n 1) s 36(12). See n 11.

Consequences of Undermining State Legislation

 193

­ nfortunately, abuse of jurisdiction may only be checked where parties or their U legal r­epresentatives choose to appeal the judgment. Non-involvement of legal practitioners in cases like this allows such attitude to continue. Annoyingly, even where there is an appeal, most lawyers are not interested in the substance of the case but the technicalities. For instance, in the above case, all a legal practitioner will do is to raise the issue of jurisdiction and his appeal succeeds. In another case of causing grievous injury before the same Sharīʿah court, the judge employed a gendered formula in utter disregard for the Code and even the classical Māliki law. In Hassi Ado Bakin Kaba v Ado Bakin Kaba,19 the complainant, who was the wife of the accused/defendant, brought a direct complaint before the Higher Sharīʿah Court, Tsafe, claiming that she had a scuffle with her husband (the accused) because she challenged him for selling her sheep and converting the money to his own use without her permission. According to her, the accused hit her on the mouth; as a result, she lost two of her teeth. The woman demanded compensation from her husband for the injury she had sustained. The accused admitted the act and was sentenced to pay diyah under sections 217 and 220 of the Zamfara Code, 2000, and the judge ordered the payment as requested by the complainant, by relying upon a principle in Ashal-al-Madārik, volume 3, page 139, where it is reported that the Prophet (PBUH) has said: ‘For each tooth, the diyah is five camels’. This, according to the judge, means the diyah of one tooth is one twentieth of full diyah. In this case, since the accused had caused the complainant to lose two of her teeth intentionally, she was entitled to two twentieths of diyah. The estimated female diyah as at 22 February 2000 as per the record of the Court was N1,890,000 (one million eight hundred and ninety thousand naira). Accordingly, the Court ordered the accused to pay the sum of N189, 000 (one hundred and eighty-nine thousand naira) to the complainant, being the amount of compensation for the loss of two teeth. The above cases demonstrate how a typical Sharīʿah court judge will approach a case involving a man and a woman. The Court in this case did not take into the relationship of the litigants, being married to each other. Obviously, there is no difficulty in determining whether the case involved nushūz. The husband engaged the wife in a fight after selling her goat without her permission, to the extent of causing grievous injury. What is not clear is whether the husband would still have been punished if the injury caused to her was not grievous in view of section 77(1) (d) of the Zamfara Code, 2000 which exempt husbands from liability for injury caused to their wives, if it is not adjudged as grievous. At any rate, the judge was not accustomed to making reference to the provisions of the Code. Luckily enough the judge did not lay his hands on the views of jurists like Al-Zuhri that a husband is only liable when death results; even in that case, he may only be liable to diyah.20

19 

CR/TS/22/2000 (Zamfara State). M Al-Ṭabari, Jāmiʿ al-Bayān fi Taʾwīl al-Qurʾan, vol VIII (AM Shākir, ed) (Beirut, Muʾassasat al-Risālah, 2000) at 292. 20 

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Yet the decision in Hassi Ado Bakin Kaba v Ado Bakin Kaba suffers from two major flaws. It is incongruous not only with the Code but also with the classical Māliki law, which the judge considered his source of inspiration. Schedule B to the Zamfara Code, 2000 provides the quantum of diyah for all actions, ranging from unintentional homicide to unintentional injury. Part G of the said Schedule itemises parts of the body that attract one twentieth of ‘full’ diyah, and they include loss of tooth. As is the case with the body of the Code, the Schedule was also couched in a gender-neutral fashion. This means that all victims of bodily injury are treated equally. Going by the provision of the Code, the complainant should have been entitled to two twentieths of ‘full diyah’ not of ‘her diyah’ as a woman. Since by the determination of the Court, the diyah of woman was N1,890,000 (one million eight hundred and ninety thousand naira), that amount was undoubtedly half of the full diyah, ie the diyah of a man. Hassi’s entitlement should have been two twentieths of ₦ 3,780,000 (three million seven hundred and eighty thousand naira), ie N 378,000 (three hundred and seventyeight thousand naira). Unfortunately, the judge’s indifference to the written Code resulted in injustice to Hassi in this regard, by denying her 50 per cent of her entitlements. Interestingly, had the judge applied the classical law of Māliki School, Hassi would have received N 378,000, the same amount she would have been entitled to under the Zamfara Code, 2000. It will be recalled that under the Māliki School, bodily injury is compensated equally across genders up to the maximum of one third of full diyah. The stipulation was hotly debated between Saʿīd b Musayyib and Rabīʿah, as we saw in Part I of this book. If the judge had applied the same principle, he would have awarded Hassi the sum of N 378,000. In that debate, what Saʿīd b Musayyib reported was that loss of three fingers is to be equally indemnified regardless of gender. It is only when the loss exceeds three fingers that woman’s injury will be quantified based on half diyah. In this case, the complainant was only claiming the equivalent of 10 camels which, in any case, fall below the threshold set by the Māliki School to be entitled to a diminished diyah. As we earlier noted, according to the Ḥanafi view, the applicable principle in any case is full diyah for men and half for women, whether in loss of life or loss of any organ. There is nothing to suggest that the judge had made recourse to intermadhhab surfing to other legal texts outside the Māliki School. Unfortunately, the case ended up there as the complainant did not appeal against the decision owing to a number of factors. The fact that from their background, the parties to the case were rural dwellers with hardly any awareness of either the law and the intricacies of gender might be the reason for conceding to the ruling without more. ­Economic factors may have contributed too, that is the possibility that by her standards the complainant had never come across such a relatively huge amount of money. She therefore felt so satisfied with the ruling that she even forgot to claim for the value of her sheep.

Uncertainty of the Amount of Diyah

 195

IV.  Uncertainty of the Amount of Diyah Unlike, the 2000 version of Sharīʿah Code, which provided the quantum of diyah in classical sense, the Zamfara Code, 2005 defines diyah as ‘a fixed amount of money paid to a victim of bodily injury or to the deceased’s legal heirs in homicide cases’. Apart from its vagueness, absence of clearly stipulated amount of diyah in Nigerian currency in the definition could contribute to arbitrariness of the judges in awarding diyah. It also means that a judge must have to rely on market forces on a daily basis to ascertain the value of gold or silver. It is possible on the date the trial started the value was low only for it to rise on the date of conviction and sentence. Absence of stipulated diyah also creates a constitutional uncertainty on whether the provision can survive in the face of section 36(12) of CFRN, 1999, which provides that offences and punishments must be clearly defined in a written law. The constitutional issue is whether this provision conforms to the Nigerian Constitution, which requires both the offence and the penalty to be defined in a written law. Section 36(12) reads: Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

The confusion created by the definition of diyah in the 2000 version under section 59 of Zamfara Code, 2000 to wit: 1,000 dinar, or 12,000 dirham or 100 camels, could be one of the reasons for the subsequent amendment in 2005 since it is almost certain none of these items mentioned is commonly found in Nigeria. However, rather than changing the situation for the better, the amendment made it even worse since nowhere in the new Code is the ‘the fixed amount’ mentioned. There is also no agency responsible for determining on a yearly basis the equivalent of 1,000 dinar in Nigerian currency. In modern days, the items used classically in payment of diyah as defined under Zamfara Code, 2000 are hardly available. It is now paid in the respective national currencies of each state based on the value of gold and silver which are estimated in kilograms respectively as 4.25kg and 35.64 kg.21 Some countries do undertake periodic reviews. For instance, currently in Pakistan the minimum diyah is pegged at 36.63 kg of silver coins and every fiscal year the Finance Department announces, via the Gazette, the equivalent of this in the Pakistani currency.22 This eases the

21  R Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, (New York, Cambridge University Press, 2005) at 51. 22  Pakistan Penal Code, s 323(1) www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html.

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court’s duty of determining what amount best suits a given case within the limit provided by the law. The situation is different in Nigeria where the diyah is defined either in classical terms or as later redefined in Zamfara Code, 2005 as simply ‘a fixed amount of money paid to a victim of bodily injuries or to the deceased’s legal heirs in homicide cases’.23 Other Nigerian states still retain the earlier definition. It therefore behooves the legislature to consider amending this provision, by creating a body entrusted with the duty of stipulating the value of diyah on a yearly basis as is done in Pakistan. That will remove arbitrariness, ensure uniformity in the award of diyah and above all satisfy the constitutional requirement.

V.  Breaking the Jinx: Hope and Despair In the above cases, we saw how the inferior court judges flagrantly disregarded the gender-neutral provisions of the Code and resorted to the classical fiqh literature, thereby perpetuating the unevenness the Code wanted to avoid. Appellate courts would be the only fora to right the wrongs but as highlighted above, such cases would terminate at the State Sharīʿah Court of Appeal since the Court of Appeal cannot entertain criminal appeals from the Sharīʿah Court of Appeal. Added to this is the myriad of decisions of the High Courts and Court of Appeal that declared unconstitutional the extended jurisdiction of the Sharīʿah Court of Appeal. One may cite the following High Court decisions as the tip of an iceberg: Alhaji Yau Marrabar Kankara v Da’awah Committee;24 Garba Maitangaram v Abdullahi Mai Taxi;25 and Ibrahim Haruna Kuta v Ahmadu Galadima.26 The Court of Appeal also made similar remarks in Alhaji Abdu Mai Da Ura v Garba ­Bagobiri Tudun-Iya;27 Abubakar Faransi v Habsatu Noma;28 Bashir Gidan Kanawa v Alhaji Sani Maikaset;29 Alhaji Aminu Haruna and Alhaji Yusuf Dan Hausa v Umar Suleiman and Attorney General Zamfara State;30 Garba Borgu Fada v Aliyu ­ ­Ibrahim;31 Ahmadu Makeri Tawo v Komishina Muputa Butoko32 and COP v ­Mallam Kasimu Umar & 111 Others.33 The Court of Appeal Sokoto Division in Alhaji Aminu Haruna and Alhaji Yusuf Dan Hausa v Umar Suleiman and Attorney General Zamfara State (supra)

23 

Zamfara Code, 2005, s 60. KTH/MF/6CA/2001 (unreported). 25  BOM/5A/2002 (unreported). 26  LRNN 2004, 398. 27  CA/K/320/S/2003 (unreported). 28  (2007)10 NWLR (pt 1041) 202. 29  (2007)10 NWLR (pt 1042) 283. 30  (2014) 2 SQLR pt IV, 521–42. 31  (2015) LPELR-24449. 32  LRNN 2010, 66. 33  CA/S/71/2014 (unreported). 24 

Breaking the Jinx: Hope and Despair

 197

c­ ategorically outlawed entertaining any assumption of appellate jurisdiction by the Sharīʿah Court of Appeal in matters outside Islamic personal law. The provisions of Sections 42 and 43 of the Zamfara State Sharia Courts (­Establishment) Law, 1999 [quoted in §2.8 above] are inconsistent with the provisions of Section 277(1) and (2) of the Constitution. Similar provisions in Section 17 of the Sokoto State Sharia Courts Law, 2000 were held by this Court to be inconsistent with the provisions of Section 277(1) and (2) of the Constitution in the case of Kanawa vs. Maikaset (2007) 10 NWLR (Pt. 1042). … [T]he Zamfara State Sharia Court of Appeal lacks the j­urisdiction and competency to entertain this appeal…involving questions other than those of Islamic ­Personal Law and in criminal proceedings outside the provisions of Section 277(1) and (2) of the Constitution.

With this onslaught the only saving grace appears to be the High Court. As such, this segment attempts to demonstrate how charging an accused person under the Sharīʿah Penal Code before the High Court can be a source of solace as well as concern for the development of Islamic criminal law and gender in Nigeria. The argument being made is that the Sharīʿah Penal Code is a state law passed by the state House of Assembly, and can therefore be applied by any court. It shall further argue that arraigning an accused before the High Court will ensure the protection of his/her right to fair hearing and will allow an easy flow of cases up to the Supreme Court. That would in turn facilitate the development of Islamic criminal law jurisprudence via judicial pronouncement at the apex level. The reasoning is that a legally trained judge will hardly ignore the black letter law and the constitutionally guaranteed rights of individuals and treat them in a discriminatory way. On the other hand, much as this approach would protect human right and facilitate development of Islamic jurisprudence, it is also a source of concern. This is because processing an accused person through the conventional High Court may result in creating a hybrid jurisprudence, exactly as in the case of Pakistan. We saw in our analysis of the Pakistani cases how English legal principles have acquired Islamic clothes through the instrumentality of English legal methods applied by English trained judges. Of course, this consequence is necessarily expected given the entrenched doctrine of judicial precedent, which mandates a lower court to follow the decision of the superior court. Secondly, the fact that both the Nigerian judges and the legal practitioners appearing before them are trained in the English legal tradition, with little or no knowledge of Islamic law, makes it certain that the feared adulteration will occur. AH Yadudu earlier raised concern over this issue, though in a different context, where he says: The co-option of this common law doctrine (i.e. the doctrine judicial precedent) into Islamic legal system is likely, I fear, to do in Nigeria what it has done to this law in the Indo-Pakistani subcontinent: it will turn Islamic law upside down. In that region, Islamic law is not only referred to as Anglo-Mohammedan law; it is mainly discussed, taught at schools and judicially interpreted and applied as a judge-made law very much like the received English common law. If Nigerian judges should similarly rely on past decisions of courts to decide disputes between Muslims to which Islamic law is applicable, we will

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very soon render redundant the wealth of juristic heritage, which the Qurʾān, the books of ‘Ḥadīth’ and well-known legal manuals embody. We will thereby dispense with the treasure of knowledge which our traditional Islamic law scholars have acquired in preference for case law.34

Yadudu’s observation on this point is well made insofar as he seeks to argue against transplanting of some alien principles into the Islamic regime. However, to claim that a lower court judge should dispense with the decision of the superior court appears to carry the argument too far. Reference to the past decision does not necessarily diminish a judge’s right to tap from the vast resources available in the Islamic legal manuals. The argument suggests that appeal to the superior court is not supportable in Islam by his claim that judicial hierarchy is unknown in Islamic legal tradition.35 This position further suggests that the law is static and not amenable to adjustment even when blunders are committed in the name of Islam. The cases cited above clearly demonstrate how injustices are done in the name of Islam leading to loss of life and property. It will be most unfair to limit an accused’s right of appeal in circumstances like ours where the trial judge cannot reverse or review his earlier decision. There is nothing wrong with a court structure that allows for thorough scrutiny of decisions of lower courts if the intention is to ensure that justice is done to all and sundry. Although an accused person can secure justice through the appeal system, the structure of the latter does not support the development of Islamic jurisprudence in the country. For instance, currently, the Constitution is silent on the composition of the Supreme Court panel to sit on matters involving Islamic personal law. It is therefore common to find that only one of the panellists is a Muslim, while the four remaining justices are of a different faith. Even then, the Muslim panellist need not be learned in Islamic law. One is forced to ask whether this situation will facilitate or retard the development of Islamic law as a whole.

A.  The Kano Initiative: Kano State v Lami Adamu It is now settled that the criminal appeal jurisdiction extended to the Sharīʿah Court of Appeal via state law is unconstitutional. Anomalously however, recent research reveals that criminal appeals are still going to the Sharīʿah Court of Appeal of Jigawa, Kebbi, Kaduna, Kano, Sokoto and Zamfara States and none go to the State High Court. In the states of Borno, Niger and Yobe, the Sharīʿah Courts do not handle criminal matters. However, in Katsina and Bauchi States all criminal appeals from the Sharīʿah Court go to the High Court.36 Constitutionally, the 34  AH Yadudu, ‘Colonialism and the Transformation of Islamic Law in the Northern States of ­Nigeria’ (1991) 32 Journal of Legal Pluralism 103–39 at 125. 35 ibid. 36  P Ostien, AS Garba and MU Abubakar, ‘Nigeria’s Sharia Courts’ in P Ostien, AR Mustapha and MS Umar, Sharia Implementation in Northern Nigeria Fifteen Years On: Six Research Reports and an Overview (forthcoming).

Breaking the Jinx: Hope and Despair

 199

Court of Appeal only entertains criminal appeals emanating from the High Court. Appeal against the Sharīʿah Court of Appeal’s decision in criminal matters would, however, meet a brick wall since the Court of Appeal lacks jurisdiction to entertain criminal appeals from it.37 This gives the Sharīʿah Court of Appeal the status of a ‘semi Supreme Court’ within a given federating unit. Notwithstanding this, the Sharīʿah Court of Appeal has succeeded in saving the lives of women like Safiyyatu Hussaini and Amina Lawal, when it quashed the decisions of the lower courts.38 Given the problem in processing criminal appeals through the Sharīʿah Court of Appeal to the apex court, the Kano State Attorney General made a wonderful twist by filing a homicide case under the Sharīʿah Penal Code before the High Court of Justice in the state. Perhaps, unaware of the challenges at the Supreme Court, the Attorney General hoped that this move would allow a case decided under the new Islamic criminal regime to reach up to the Supreme Court of Nigeria for the first time. Section 241(1)(a)–(e) of the CFRN, 1999 empowers the Court of Appeal to entertain both civil and criminal appeals from the state High Courts. Compare the jurisdiction of the Nigerian Court of Appeal to entertain cases from the High Courts with the Sharīʿah Court of Appeal respectively, as follows: Section 241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases— (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings; (c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person; (e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death. Section 244 (1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide.

In Kano State v Lami Adamu39 filed on 30 March 2010 before the High Court of Kano State, the accused, a female, was charged with the offence of intentional homicide contrary to section 143(a) of Kano State Sharīʿah Penal Code Law, 2000. She was alleged to have stabbed her boyfriend, one Abdullahi Wawu, with a ­broken

37 

See CFRN, 1999, s 244(1) and (2). GJ Weimann ‘Divine Law and Local Custom in Northern Nigerian zinā Trials’ (2009) 49 Islam in Contemporary West Africa: Literature, Orality and Law 429–65. 39  Suit No K/42c/2010 (ongoing). 38 

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bottle on his thigh causing a deep laceration and loss of blood resulting in his death. In a preliminary objection, this step taken by the Attorney General was, however, challenged by counsel to the Legal Aid Council that the High Court cannot exercise original jurisdiction over the matter having been brought under the Sharīʿah Penal Code. The High Court, in a considered ruling, overruled the objection, stressing, among other things, that the Constitution empowers the Attorney General to institute a criminal proceeding before any court in respect of offences created under a law made by the State Assembly. In the circumstances, the Sharīʿah Penal Code is a law created by the Kano State House of Assembly. The Court noted that its jurisdiction was not ousted by the Sharīʿah Penal Code of the State notwithstanding the fact that Column A.1 of the first Schedule to the Code vests the Upper Sharīʿah Court with jurisdiction over this matter. Furthermore, the High Court’s jurisdiction is limited subject only to causes and matters specifically mentioned in the Constitution.40 After this ruling, the presiding Chief Judge transferred the matter to Hon Justice Nuhu Yahaya Galadanchi on 22 April 2010, whom he said is versatile in Islamic law. Unfortunately, as of 3 November 2011, the case was still at the preliminary stage as the judge was on national assignment on election petitions. The accused had been granted bail before the judge left for the assignment. A further enquiry about the case in September 2017 revealed that the judge had adjourned the matter to 6 June 2017 and subsequently retired from the judicial office having reached the statutory age of 65 years. The case file is now at the office of the Chief Judge of Kano State awaiting reassignment. This chapter had hinted earlier that the stare decisis doctrine might ultimately necessitate the evolution of hybrid legal regime in the current application of Islamic criminal law, whereby some principles alien to the latter may creep in to produce an Anglo-Islamic jurisprudence. A clear example is the plea of provocation, which was first used in 1947 to circumvent the Islamic criminal regime via Tsoho Gubba’s case. The defence may conveniently be imported through case law as evidenced in Pakistan too. As we saw in the ruling on Lami’s case, the Court similarly referred to the legislation on the repugnancy test, which the Court affirmed to be duty bound to enforce and observe. Section 34 of the High Court Law, Cap 57, Laws of Kano State of Nigeria, 1991 provides: The High Court shall observe and enforce the observance of customary law which is not repugnant to natural justice, equity and good conscience, not incompatible either directly or by implication with any law for the time being in force, and nothing in this law shall deprive any person the benefit of any such customary law.

The implication of this ruling is that a High Court may be persuaded into believing that non-recognition of a plea of provocation by Islamic law is repugnant to natural justice. This argument could cause a court to be carried away by the above

40  See the ruling on Kano State v Lami Adamu (supra) delivered by Hon Justice Shehu Atiku on 20 April 2010.

Conclusion

 201

quoted provision and forget that the provisions of the Code embodying Islamic law are enactments of the State Assembly, and are no longer classified as customary law. Ordinarily there was no point referring to this provision since what was before the court for determination was the law enacted by the Kano State House of Assembly. The danger being foreseen here has already began to emerge, ie the likelihood of an English-trained Nigerian judge viewing Islamic law through the lens of an English judge as ‘customary law’, regardless of the fact that it is made via a law enacted by the state legislature.

VI. Conclusion This chapter examined some cases decided by the Sharīʿah Court and observed that unlike the Sharīʿah Penal Code that is relatively gender neutral, the practical application of the Code is fraught with gender bias. This is attributable to the lower court judges’ subjectivity and insensitivity to gender issues and lack of faith in the codified law. This has resulted in short-changing womenfolk when claiming diyah against men. Unfortunately, constitutional barriers have stalemated the development of Islamic jurisprudence in that regard, as no criminal appeal can reach the Court of Appeal via the Sharīʿah Court of Appeal. Indeed, the purported extension of jurisdiction has suffered heavy blows from the superior courts. The Kano State initiative of prosecuting an accused person before the High Court under the Sharīʿah Penal Code, though commendable, may yet create another problem, which is the likelihood of commingling the English common law and Islamic law principles via judicial precedent. This may, in the end, be a source of victimisation of women, as we saw in the Pakistan case study. It is suggested that this constitutional logjam may be averted by channelling such cases through the High Court. In which case, the Constitution may be amended to include additional requirements such as grounding in Islamic criminal law for a judge of the High Court handling Islamic criminal appeals. This enables fundamental rights of accused persons to be better protected as well as allowing for exhaustion of all avenues of appeal. As the Constitution mandates that in matters of Islamic personal law at least three of the justices of the Court of Appeal must be learned in Islamic personal law,41 the same may be adopted for Islamic criminal appeals. In addition, the Court of Appeal may be made the court of last resort. Alternatively, the pre-Ado v Dije42 arrangement could be resorted to. This entails having an assessor not below the rank of a Kadi of the Sharīʿah Court of Appeal sit with High Court judges in determining criminal appeals from the Upper Sharīʿah Court. Before this case, the quorum for hearing appeals from the Upper Area Court

41  42 

CFRN, 1999, s 247(a). (1984) NCLR 260.

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used to be two High Court judges and a Kadi of the Sharīʿah Court of Appeal. This was held by the Court of Appeal to be contrary to the provisions of the 1979 ­Constitution. It is submitted that restoring this pre-1984 arrangement may avert the problem of mixing up the principles of the two legal systems. ­However, in both circumstances, constitutional amendment is necessary.

EPILOGUE

This book engaged with the classical fiqh discourse on homicide and bodily hurt and the gender issues emanating from it and how it impacted on the operationalisation of the Islamic criminal law regimes of the contemporary states of Pakistan and Nigeria. This engagement was necessitated by the claim of unfairness across genders attributed to the Islamic criminal regime, so as to ascertain whether the so-called justice deficit is embodied in the Holy Qurʾān and/or Sunnah of Prophet Muḥammad, or is extrinsic, ie coming from other sources. What is obvious is that in classical fiqh literature the discourse on homicide and bodily hurt is tilted more in favour of men. Although, the literature equate their souls, such that a man is executed for killing a woman, all the four Sunni schools prescribe that a woman is only entitled to half what a man gets as monetary compensation. Notwithstanding this, the classical jurists made use of the institution of solidarity group (ʿāqilah) to balance the disparity created by this asymmetrical principle. This was achieved by imposing upon men as a group the burden of ­settling any claim on accidental murders or serious injury caused by any member of their community, including women. In addition to this, even in cases where women caused the injury, it is the duty of the male-only solidarity group to pay the compensation on their behalf. It is believed that the social condition and economic potential of women in the classical age was responsible for this concession. It is however noted that the concept of ʿāqilah is not watertight and can be restructured according to the prevailing circumstances of a given period. The Prophet Muhammad had reconstituted it when he migrated to Madīna. One of his rightly guided caliphs, ʿUmar b Khaṭṭāb, had also reconstituted it in a different passion during his reign. It is suggested that the ʿāqilah can now be redesigned regard being had to our current realities. That means it can be populated by both males and females since the socio-economic standing of women has improved. The book suggested a reconstruction that would consider residency as the core determinant of membership rather than affiliation to a clan. It is therefore dubbed the ­‘citizenship solidarity’ paradigm. On the other hand, the research revealed that the Qurʾān treats men and women on a par in every respect under the domain of qiṣāṣ and diyah. With regards to the Sunnah of the Prophet Muhammad (PBUH) some contradictory narrations of Muʿādh b. Jabal and ʿAmr b Ḥazm were found to be the authorities relied upon to justify the asymmetrical prescription. The classical fiqh jurists made use of al-jamʿ wa’l-tawfīq (conciliation) by assuming the narration of ʿAmr b Ḥazm as c­ ontaining the general rule with Muʿādh’s narration as an exception. This afforded them the

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opportunity to use both narrations at least with abundant caution. H ­ owever, both past and contemporary ḥadīth scholars have verified these narrations and found them to be not on the same pedestal; as such, they should not have been reconciled in the first place. After a thorough analysis it became obvious that the discriminatory prescriptions were mostly products of individual opinions built on the basis of analogy (qiyās). Even then the analogy was arrived at through creating linkages between unrelated issues. For instance, the basis of half diyah is the Islamic law rules of inheritance and the law of evidence. Other factors considered include economic argument that men are financially responsible for their families and are physically more energetic. It is observed that if a man can be executed for killing a woman there is no reason why they are not compensated equally. The logical inference one can draw is that it is not every principle in the Islamic criminal system that comes from the divine sources. Indeed, quite a number of them are products of human interaction with the divine sources while i­ nfluenced by outside factors. Extreme social prejudices against women facilitated such ­discriminatory formulations to the extent that any principle that demeaned the worth of women often passed without any verification. The research found that the classical fiqh discourse on gender did not impact much on the contemporary Islamic criminal law regimes of Pakistan and Nigeria. In both countries, the authorities have been careful in observing constitutional equality. In Pakistan for instance, in addition to the constitutional safeguards, ­pre-legislative consultations with stakeholders had significantly helped in minimising the issues that pose gender concerns. This was achieved because of resistance from some stakeholders particularly women. As a result, Pakistan jettisoned the half diyah principle even though Justice Cheema’s draft ordinance adopted it. The ­legislative attitude of ignoring some of these principles corroborates our stance that ­principles enunciated in fiqh literature on this subject matter are embroiled with gender biases and, more importantly, lacked basis in the divine sources. The Nigerian legislature was equally careful so as not to affront the ­Constitution; as such, only few gender discriminatory provisions can be found in the Zamfara Code, 2005. The judiciary in both Pakistan and Nigeria have not complemented the ­legislative effort in minimising problems of gender in the implementation of their respective penal codes. In Pakistan, it is found that social prejudices have crept in to the disadvantage of women. For instance, in cases of murder on the pretext of honour, a man who kills his wife to protect his honour receives a mitigated sentence once he claims that he took the action on an allegation of zina against her. The concession extends to male members of the family who perpetrated intra-family femicide in defence of family honour. Commodification of women in the name of badl al-ṣulḥ is another cultural baggage that found itself in the Pakistan Penal Code, and was popularised by courts. The findings of this research reveal that neither killing on the pretext of honour nor badl al ṣulḥ has any religious backing from the divine sources. Indeed, in many instances, judges in Pakistan used the window provided for them under section 338F of the Penal Code to engage in judicial

Epilogue

 205

legislation by creating defences for accused persons who murdered their wives on the pretext of honour, and justifying the same with religious authorities. They ­perfected this through selective interpretation of unverified religious sources. Most of the authorities cited by the judges were either quoted out of context or partially cited without taking into account the higher objectives of Islamic law. This in our understanding was influenced by the historical linkage between the judges of Pakistan and the English legal system which considers defence of grave and sudden provocation as a mitigating factor. The fact that most of the judges are English trained made it easy for them to apply principles of English law and clothe them with Islamic regalia. For Nigeria, it is a matter of simply ignoring the Code by judges of the lower courts who employed the provision of classical fiqh text in its stead. A ­ nalysis of the available case law in this respect demonstrated the insensitivity of the judges to gender issues. Unfortunately, the lack of criminal appeal jurisdiction by ­Sharia Court of Appeal hampers the flow of criminal cases to the apex court for ­generating decisions that are more informed. Consequently, lower courts erroneously adjudicate many criminal cases. Some accused persons even suffered the ultimate punishment before exhausting their constitutional rights of appeal, while victims were short-changed on grounds of their gender, even though the Code did not provide for such consideration. It is thus apparent that applying the classical fiqh rulings believing them to be immutable without subjecting them to test may have contributed to the perpetuation of ill-treatment of women in the name of Islam. It is therefore unbecoming of anyone to rely on unverified sources as a basis for evaluating the Islamic legal tradition. Unfortunately, contemporary Islamic scholars are not doing much in undertaking such task of verification. This might explain why many scholars have given up their search for a solution to gender issues from within Islamic law, and even advocate recourse to the international human rights regime, as we saw above. In view of the above findings and observations, it is submitted that a panacea to the problem of gender justice in Islamic criminal law can be found within the system, as demonstrated here using the theme of homicide and bodily injury. This is only possible where scholars engage the classical fiqh text in intellectual debate to ascertain the basis of any juristic formulation that poses gender justice concerns. It is believed that such approach is more appealing to Muslims in whose territories the Islamic criminal system applies, than recourse to the international human rights regime. It is also not out of place to engage all stakeholders in debates on any issue that poses a gender problem, as such engagement will open avenues for stakeholders to question any policy that is not appealing to them. People directly affected by a ­certain ruling are more vociferous and more determined to pursue their interest at all costs. Hence, the need to ensure participation of women in deliberations as seen during the pre-legislative and legislative levels in Pakistan. This will enable women to ventilate their concerns and, at least, to elicit more reasons that justify such a policy. Engaging stakeholders also has the potential to allow new p ­ erspectives to

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emerge in the understanding of the divine message where persons directly affected have the opportunity to make their inputs. It is thus necessary to open avenues for women to participate not only in the production of knowledge but also in policy formulation as exemplified during the reign of ʿUmar b Khaṭṭāb. While the action of the Pakistan Government of inviting input from women during the drafting of the Qiṣāṣ and Diyat Ordinance was commendable, there is a need to replicate that at the level of the judiciary. This entails adopting ­measures that would ensure participation of women in both the legislative and judicial ­process. Eliciting a meaningful contribution from women is only p ­ ossible where they are encouraged to pursue education at the highest levels. This s­uggestion is equally applicable in the case of Nigeria. There is also a need for attitudinal change and ‘mutual trust’ between the genders. Male and female should ­consider ­themselves as complementary to each other, as perceiving their relationship ­hierarchically will do no more than entrench mutual animosity and disdain. Objectivity in ­addressing issues of concern and avoidance of mutual antagonism is likely to engender constructive and fruitful debates; otherwise, the much-needed gender justice may exist only in the realm of fantasy.

GLOSSARY

General ʿAdl/ʿadālah:

justice

ʿAfw:

forgiveness

Ahlul-kitāb:

people of the book, ie followers of one of the ­Abrahamic religions

Al-Muqsiṭ:

The One who establishes justice

ʿAmd:

intentional

ʿĀqilah:

solidarity group

ʿAql:

monetary compensation for homicide

Arsh:

monetary compensation for bodily injury

ʿAṣabah:

agnatic relatives

Athar:

actions and sayings of a companion of the Prophet

Bāḍiʿah:

an injury that exposes the flesh

Badl-al-ṣulḥ:

compounding of offence

Bait-ul-māl:

public treasury

Ḍaīf:

weak/spurious ḥadīth as opposed to sound and reliable

Dāmighah:

an injury that extends to the brain

Dāmiyah:

a bruise that causes blood to flow

Dhimmis:

non-Muslim residents in an Islamic state

Diyah:

monetary compensation

Fasād fil arḍ:

mischief on earth

Fāsiq:

sinner

Fatwa:

opinion of a scholar that is not legally binding

Fiqh:

jurisprudence

Fuqahāʾ (sing. faqīh):

Islamic jurists

Ghair maʿṣūm al-dam:

a person whose life is violable

Ghairah:

honour/self-respect

208 

Glossary

Ghīlah:

killing someone for his money after treacherously bringing him to an isolated place.

Ḥadīth (pl. aḥādīth):

the reported historical materials containing the ­contents of the Sunnah

Hārisāh:

a bruise that ruptures the skin or mere scratch

Ḥasan:

good/fair ḥadīth

Hāshimah:

an injury that breaks or crushes the bones or a ­fracture of the skull

Ḥirābah:

armed robbery

Ḥudūd (sing. hadd):

prescribed offences in the Qurʾān and Sunnah

Ḥukm:

ruling

Ḥukūmat al-ʿadl:

compensation awarded by a judge where there is no allotted tariff

Ḥurran:

free person as opposed to a slave

ʿIbādāt:

rituals of worship

Ijmāʿ:

juridical consensus

Ijmāʿ al-ṣarīh:

explicit consensus

Ijmāʿ ʿ al-sukūti:

implicit consensus

Ijtihād:

the use of reason to deduce laws from the Qurʾān

ʿIṣmah:

inviolability of life

Isnād:

chain of transmission that supports the hadīth

Istiḥsān:

preference

Istiqāmah:

fairness

Istiṣlāḥ:

public interest

Itlāf- al-ʿuḍw:

loss of limb or faculty such as sight, hearing, etc

Jāʿifah:

injuries extending to the body cavity of the trunk

jamʿ:

reconciling two apparently contradicting aḥādīth

Janīn:

embryo

Jurūḥ:

bodily injury

Kadi:

Judge

Khaṭʾ:

unintentional

Khulʿ:

divorce initiated by a wife by returning her dower to the husband

Lawth:

incriminating indications

Glossary

 209

Liʿān:

mutual imprecation

Madhhab (pl. madhāhib):

school of Islamic fiqh

Maḥram:

an unmarriageable relative with whom marriage is illegal in Islam. 

Maʾmūmah/ʾāmmah:

an injury that reaches the cerebral membrane, ie the casing of the brain such that only that thin ­membranes remains between it and the brain

Maqṣid:

purpose

Maṣlaḥah:

public welfare

Maʿṣūm al-dam:

one whose life is inviolable

Matn:

text of the ḥadīth as opposed to the chain of transmission

Mauḍūʿ:

a fabricated ḥadīth

Maʿūnah:

financial support

Mīzān:

balance or scale

Muʿāmalāt:

worldly transactions

Mubālagha:

hyperbole

Mubtadi ʿ

heretic

Mūḍiḥah:

an injury that exposes the bone

Muḥaqqiqūn:

expert legal critics

Mumāthalah:

equivalence

Munaqqilah:

an injury that dislocates the bone or moves it to fall apart

Munkar:

in relation to ḥadīth, a narration of person of doubtful character

Mursal:

a ḥadīth reported directly from the Prophet by a tabiʿī omitting the name of the companion from whom he received it

Murtadd:

apostate

Musta’min:

non-Muslim temporary residents in an Islamic state

Mutalāḥimah:

an injury that severs or pierces the flesh deeply

Naṣīb:

share or portion

Naskh:

abrogation

Naṣṣ:

a clear and unequivocal text

Nushūz:

wife’s disloyalty

210 

Glossary

Qadhf:

false accusation of zina

Qasāmah:

a collective oath in a criminal procedure when the murderer is unknown

Qaṭʾi:

definitive ruling

Qawad:

retribution for bodily injury

Qawāmah:

Matrimonial guardianship

Qiṣāṣ:

retribution for loss of life

Qisṭ:

fairness

Riwāyah:

transmission

Ṣadāq:

dower

Ṣahābī:

companion of the Prophet (PBUH)

Ṣaḥīḥ:

sound ḥadīth

Salam:

advanced payment sale

Shādh:

in relation to ḥadīth, a narration by a reliable person which goes against the narration of many other reliable persons

Shādh-al-nādir:

highly isolated view

Shahādah:

testimony

Shijāj:

facial injuries

Shubh al-ʿamd:

semi intentional

Ṣiḥāḥ sitta:

the six sound collections of ḥadīth

Simḥāq:

an injury that reaches the thin (fibrous) membranes between the flesh and the bones (periosteum)

Ṣulḥ:

settlement

Sunnāh:

words, actions and tacit approvals of Prophet Muḥammad (PBUH)

Taʿazīr:

a discretionary penalty

Tābiʿī:

a person who belongs to the generation following that of the companions

Tadlīs:

concealment of defect as opposed to outright forgery

Takāful:

Islamic insurance

Tanāṣur:

mutual assistance

Tarika:

estate left behind by a deceased person

Thaʾr:

vengeance spree

ʿUrf:

custom

Glossary

 211

Uṣūl-al-fiqh:

roots of jurisprudence or method of performing ijtihād

Wali:

a person entitled to claim retribution from the killer of his relative

Waṣiyya:

will or bequest

Wasṭ:

medium

Zakāt:

poor due

Ẓannīʾ:

speculative ruling

Zina:

illicit sexual relations

Urdu terms Jirga/panchayat:

an informal assembly where the feudal elite of the village passes judgment in disputes among village residents

vani custom:

cultural practice where girls are given in marriage in settling disputes between tribes/clans

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220 

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Tyus, J, ‘Going Too Far: Extending Sharia Law in Nigeria from Personal to Public Law’, (2004) 3 Washington University Global Studies Law Review 199. United Nations Department of Economic and Social Affairs/Population Division, World Population Prospects: The 2015 Revision, Key Findings and Advance Tables (2015) https:// esa.un.org/unpd/wpp/Publications/Files/Key_Findings_WPP_2015.pdf. United States Central Intelligence Agency, (CIA) World Factbook www.cia.gov/library/ publications/the-world-factbook/geos/pk.html. Usman, YB ‘The Sokoto Caliphate and Nation Building’ (paper presented at the International Conference on the Sokoto Caliphate and its Legacies, Abuja, Nigeria, 14 March 2004) https://dawodu.com/usman2.htm. Ward, A, ‘Justice as Economics in Aristotle’s Nicomachean Ethics’ (2010) 4(1) Canadian Political Science Review 1–11. Wasti, T, The Application of Islamic Criminal Law in Pakistan (London, Brill, 2009). ——, ‘The Law on Honour Killing: A British Innovation in the Criminal Law of the Indian Subcontinent and its Subsequent Metamorphosis under Pakistan Penal Code’ (2010) 25(2) A Research Journal of South Asian Studies 361–411 at 364. Weimann, GJ, ‘Judicial Practice in Islamic Criminal Law in Nigeria—A Tentative Overview’ (2007) 14 Islamic Law and Society 240–86. ——, ‘Divine Law and Local Custom in Northern Nigerian zinā Trials’ (2009) 49 Islam in Contemporary West Africa: Literature, Orality and Law 429–65. Weiss, AM, ‘Women’s Position in Pakistan: Sociocultural Effects of Islamization’ (1985) 25(8) Asian Survey 863–80. Yadudu, AH, ‘Colonialism and the Transformation of Islamic Law in the Northern States of Nigeria’ (1991) 32 Journal of Legal Pluralism 103–39. ——, ‘Colonialism and the Transformation of the Substance and Form of Islamic Law in the Northern States of Nigeria’ (1991) 9(1) Journal of Law and Religion 17–47. Yamāmah, AH, Mausūʾat Shurūḥ al-Muwaṭṭa li al-Imām Mālik b Anas (Cairo, Dar ‘Alam al Kutub, 2005). Yelwa, MI, ‘Inter-Gender Balance of Rights in Islam’ in SS Haneef, NM Zin and MW ­Mahmud (eds), Issues on Harmonization of Human Rights in Islam (Kuala Lumpur, ­International Islamic University Malaysia Press, 2016) 66–83. Zaylaʿi, AY, Naṣbu al-Rāyat li Aḥādīth Al-Hidāyah (M ʿAwāmah, ed) (Beirut, Muʿassasat al-Rayyān, 1997).

INDEX

ʿAbbāsid dynasty, women in, 86 ʿAbdullahi b ʿAbdurrahman Al-Jibrīn on women as contributing members, 55 abrogation (al-naskh): Qurʾānic ruling and wife-beating, 184 sequencing approach and, 79–80 Abū Shaqqa on women’s intellectual inferiority, 73–4 ‘adālah’ (justice), 6 agnatic relatives: contributions of, 56 male (ʿaṣabah) and diyah, 42–3 ʿAli b ʿAbi Ṭalib, 159 honour killings, on, 162 women’s half-diyah and, 99–100 Al-jamʿwa’l-tawfīq (conciliation method) see conciliation method al-naskh (abrogation method) see abrogation al-Shāriʿ defined, 13 Al-tarjīḥ (preference or elimination method) see elimination or preference method ʿAmr b Ḥazm: Emissary in Yemen, 89 women’s diyah, narratives on, 88–92 ʿAmr b Shu ʿayb, ‘one-third’ formula narrative see ‘one-third’ formula anatomical gender differences and bodily injuries, 30–31 Ansari Commission (Pakistan), 114–15 Appeal Courts (Nigeria), Sharīʿah Penal Code 2000 cases considered, 196–7 ʿāqilah, 41 citizenship solidarity, 58–62 conciliation (Al-jamʿ) and, 44 consensual and non-consensual aspects, 57–8 contemporary relevance of, 55–8 definition, 41–2, 55–6 discussion of (Pakistan), 140 dīwān system, based on, 52–5 extent of obligation, 46–8 gender disparity and, 41–63 interpretation of, 43–6, 48–50 migrant/helper dichotomy and, 52 mutual assistance (tanāsur), 56–7 Pakistan Law Commission on, 137 Pakistan Penal Code, absence of in, 137–41 perpetrators and, 44–5 pre-Islamic development, 41–3

Prophet Muḥammad on, 43–4 reconstituting, 57 rethinking, 48–50 tribal affinity and, 56 womens’, 45–6, 50 ʿāqilah (Nigeria): unintentional homicide judgments, not referred to in, 192 Zamfara Code 2000, under, 185 Arabia, pre-Islamic, homicide in, 22–3 Aristotle on justice, 5 asymmetrical diyah, 64–71 economic argument for, 74–5 badl-al-ṣulḥ (Pakistan), 115 case law, 129–30 concept of, 129 marriage, qualification as, 131 women and, 129–32 bodily injuries: anatomical gender differences and, 31 compensation for see compensation for bodily injuries PPC categories, 121 retribution, in, 29–34 see also homicide and bodily injuries caliphs, judicial, decisions of, 102–3 cancellation method (Al-tasāquṭ), 21 CEDAW (Convention on the Elimination all Forms of Discrimination against Women), 111, 176 CFRN see Constitution of the Federal Republic of Nigeria children: child marriage, 29 womens’ responsibility for, 33 citizenship and identity, 60 citizenship paradigm and Muslims and non-Muslims, 60–2 citizenship solidarity, 58–62 paradigm (Pakistan), 140–1 taxation and, 58–9 companions: half-diyah narration of, 95–104 legal theorists’ views, 101–2 Prophet Muḥammad’s, 14–15, 18, 29, 35–6 sunnah, interpretation of, 38

222  compensation: ʿāqilah’s obligation to pay, 46–8 deceased’s family to pay, 28–9 individual responsibility and, 60 loss of life, for, 27–9 unintentional homicides, 49–50 victim compensation fund, 59 victims, for (Pakistan), 114 compensation for bodily injuries, 35–40 Ḥanafi and Māliki Schools on, 35 conciliation method (Al-jamʿwa’l-tawfīq), 20 ʿāqilah and, 44 Constitution of the Federal Republic of Nigeria (CFRN) (1999), 187 gender discrimination, 176–7 Māliki law principles and, 176 SCA jurisdiction, on, 188 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 111, 176 Council of Islamic Ideology (Pakistan), role of, 114–18 criminal appeals (Nigeria), SCA jurisdiction for, 188–9 criminal justice (Pakistan): Islamisation of (case law), 113 ‘victim justice’, becomes, 119 Criminal Law Amendment Ordinance (Pakistan), 118 custom (ʿurf    ), 17, 41 Customary Courts of Appeal (CCA) (Nigeria), 187–9 deceased’s family, compensation for, 28–9 disloyalty, wife’s (nushūz), 182, 183, 184, 186, 193 divine and human components of Sharīʿah, 11 fiqh and, 11 Islamic criminal law and, 10–21 legal norms and, 11 divine authority, 7 dīwān system, ʿāqilah based on, 52–5 diyah (monetary compensation), 23 asymmetrical see asymmetrical diyah gender equality and (example), 30–1 ḥadīth, on, 85–6 half-diyah see half-diyah inheritance and, 64–71 loss of life, women’s, and, 26–7, 83–6 Muslims and non-Muslims, of, 61 Offences against Human Body (Enforcement of Qiṣāṣ and Diyat) Ordinance (Pakistan) and, 114 Pakistani women, of, 115–16 two-to-one ratio, 65–6 unintentional homicides and, 98–9 women, of, 26–7, 74–5, 84–5

Index diyah (Nigeria): full payment, categories for, 171–2 legal framework of, 169–82 Zamfara Code 2000, under, 195–6 Zamfara Code 2005, under, 195, 196 diyah (Pakistan): fund to assist with payment, 139–40 inheritance and, 133–4 payment of (example), 137–8 PPC interpretation of, 138–9 diyah proceeds (Pakistan), 136–7 disbursement of, 132–7 National Commission on Status of Women of Pakistan observations on, 132–3 dowry, payment of, 96 dress code, womens’, 32 Egypt, womens’ testimony (13th century), 70 elimination or preference method (al-tarjīḥ): historical approach to homicide and bodily injuries, 81 preference, 20–1 sequencing approach and, 79–80 facial injuries (shijāj), 36–7 faqīh defined, 13 Federal Council (Majlis al Shūrā) (Pakistan), 116 Federal Shariat Court (Pakistan), 111–12 jurisdiction of, 112 Federal Supreme Court (Nigeria) and Islamic criminal law, 181 Federation of Pakistan v Gul Hassan (1989) discussed, 118–19 fiqh (Islamic jurisprudence) see Islamic jurisprudence forgiveness (ʿafw), 31, 80 gender: definition, 8–9 disparity and ʿāqilah, 41–63 homicide, schools of thought, 25–6 homicide and bodily injuries, Prophetic sayings, 83–8 Islamic criminal justice, in, 24 justice, Islamic approach, 3–9 neutrality in murder offences (Pakistan), 120–1 responsibility, 31–2 roles and science and technology, 34 violence (Pakistan) and judicial process, 142–64 gender equality: diyah and (example), 30–1 limbs, value of, 29–30 Plato’s views, 4–5 gender equality (Nigeria): homicide and bodily injury and, 173–7 Sharīʿah Penal Codes and, 175–6

Index gender justice, Islamic approach, 3–9 gender (Nigeria): bias and homicide and bodily injury, 175–6 discrimination and CFRN, 176–7 issues, 187–202 gender relations: ibādāt and, 33 spiritual point of view, 32 God’s commands, obedience to, 6–7 grave and sudden provocation (Nigeria): defence of removed, 179–82 Māliki School and, 179 grave and sudden provocation (Pakistan): honour killing case law, 145 post-1990 case law, 146–9 Greek philosophy and justice, 3–5 grievous harm (Nigeria) to women in Qurʾān, 182–4 grievous injury and hurt (Nigeria), 170 ḥadīth: authenticity of, 91–2 categories of, 16–17 diyah, on, 85–6 Mughīra’s, 154–6 recording of, 91 Saʿad b ʿUbādah’s, 158–9 women as property owners, mentioned in, 51–2 women’s intellectual inferiority and, 73 women’s role as narrators, 68–70 ḥadīth collection, 16–17 contradictory narratives, 19–21 ḥadīth literature on half-diyah narratives, 92–4 ḥadīth (Pakistan): diyah and inheritance, 134 Mughīra’s and religious justification for honour killings, 154–5 half-diyah: companions’ opinions of considered, 95–104 Ibn Ḥajar Al-ʿAsqalāni on, 84 matrimonial disputes and, 97 Muḥammad Naṣiruddīn Albāni on, 85 narratives in early ḥadīth literature, 92–4 stipulation, 64–5, 66–7, 84 ham (bird), 23 Ḥanafi School, compensation for bodily injuries, 35 Hanbali scholars, ʿāqilah’s obligation to pay compensation, 46 hierarchisation (Nigeria): de-hierarchisation of Maliki School, 177–8 gender-based of deceased’s heirs and Maliki School, 178 High Courts (Nigeria) rulings on extended jurisdiction of Sharia Court of Appeal, 196–7

 223

homicide: categories of, 24–5 independent offence, is, 25 Islamic criminal law, under, 24–5 pre-Islamic Arabia, in, 22–3 see also murder homicide and bodily injuries: gender and Prophetic sayings, 83–4 historical approach, 80–1 ‘one third’ formula (diyah), 94–5 homicide and bodily injuries in Qurʾān, 77–8 contextual approach, 82–3 historical approach, 80–1 sequencing approach, 79–80 homicide and bodily injuries (Nigeria): equal right to legal redress, 177–8 gender bias and, 175–6 gender equality and, 173–7 women’s legal redress and, 177–8 honour crimes, 142–4 definition, 142–3 honour (ghairah) (Pakistan), 148 (case law) honour killing (Pakistan): ʿAli b ʿAbi Ṭalib on, 162 cases, Pakistani judiciary’s treatment of, 149–52 debate on, permissibility, 160–1 defences against (case law), 145–6 economic motives for, 143 Ibn Qudāmah on, 163 justification for and Mughīra’s ḥadīth, 154–5 manslaughter, is (Pakistan) (case law), 144–6 parental disobedience grounds, on (case law), 151–2 penalty for, under PPC, 152–3 post-1990 regime, in, 146–52 pre-1990, 144–6 protection of women against, 152–4 religious justification for, 154–61 sentencing, 145–6 zina grounds, on (case law), 151–2 hudood cases (Pakistan), 112 ‘human being’ (Nigeria) and Sharīʿah Penal Code, 175–6 husbands (Nigeria) cause grievous hurt to women, 182–5 ibādāt and gender relations, 33 identity and citizenship, 60 ijmāʿ (juridical consensus) see juridical consensus independent juristic reasoning (ijtihād), 17, 57, 96, 123 individual responsibility: compensation and, 60 joint penal responsibility and, 49

224  individual rights (Nigeria) and qiṣāṣ -related offences, 175 infidelity (Pakistan), evidence of, 158 inheritance: distribution examples and formulae (Islamic), 134–5 diyah and, 64–71 equality of men’s and women’s shares, 65–6 Pakistan’s diyah and, 133–4 residuary, 103–4 intentional homicide (Nigeria), 169–70 qiṣāṣ, penalty for, 170–1 intentional homicide (Pakistan) (qatl-al-khatʿa), 120 intertextuality (Qurʾān) and women’s empowerment, 68–9 intra-family femicide, 160 Islam and Pakistan, 110–11 Islamic criminal justice: Federal Supreme Court (Nigeria) and, 181 gender in, 24 Nigeria, in, 166, 179–81 Nigerian courts’ implementation of, 190 women and, 205–6 Islamic criminal law: divine and human elements, 10–21 Federal Supreme Court (Nigeria) and, 181 homicide under, 24–5 Nigeria, in, 204 Pakistan, in, 204 Islamic insurance (takāful), 57, 58 Islamic jurisprudence (fiqh): āqilah interpreted, 43–6 definition, 12 divine and human components, 11 gender justice and, 9 Sharīʿah and distinguished, 13 Islamic law and legal tradition: divine components, 14–17 elements of, 13–14 human components, 17–19 justice in, 6–9 legal norms and, 11 Nigerian judges’ knowledge of, 197–8 Northern Nigeria, reform of, 181 judicial process (Pakistan) and gender violence, 142–64 juridical consensus (ijmāʿ), 17–19, 28 caliph’s judgments and, 97 challenges to, 18 definitive (qaṭʾīʾ), 18, 28, 39 half diyah and, 95, 99 speculative, 18 justice: Aristotle on, 5 arithmetical and geometrical, 5 attributes, 6

Index Bhandari on, 3 conceptualisation of, 3–5 derivation of, 6 establishment of, 7–8 Greek philosophy and, 3–5 Islamic legal tradition, in, 6–9 Plato and, 4 Qurʾān, in, 6 Socrates and, 4 Kano Initiative (Nigeria), 198–201 law (Pakistan), cultural tradition of as vehicle of change (case law), 153–4 ‘legal heir’ (Nigeria) defined, 177 legal norms: divine and human components, 11 Islamic law and, 11 legal redress (Nigeria): rights to equal in homicide cases, 177–8 women’s and homicide, 177–8 Zamfara Code 2005 and women’s right to redress, 178 limbs: gender equality, value of and, 29–30 severing (Nigeria), qiṣāṣ penalty for, 171 loss of life: compensation for, 27–9 diyah and, 83–6 intentional and retribution, 26 retribution for, 25–7, 83 woman’s, remittance for, 26–7 lower courts (Nigeria), creation of, 189 Madinan and Makkan revelations, 14–15 Māliki law principles (Nigeria) and CFRN, 176 Māliki School: ʿāqilah’s obligation to pay compensation, 46–7 compensation for bodily injuries, 35–6 minor wounds, compensation for, 36–7 sunnah and, 39, 40 Māliki School (Nigeria): de-hierarchisation of, 177–8 gender-based hierarchisation of deceased heirs, 178 grave and sudden provocation and, 179 judges’ arrogation of jurisdiction, 192–4 Muslim law of recognised, 166 manslaughter (Pakistan), honour killing is, 144–6 marriage: badl-al-ṣulḥ (Pakistan) qualifies as, 131 matrimonial disputes and half-diyah, 97 men and, 32 men: family responsibility, 32 honour (Pakistan), 143–4

Index inheritance, equal shares with women, 65–6 marriage and, 32 Qurʾān, treatment of in, 203–4 migrant/helper dichotomy and ʿāqilah, 52 minor injuries, retribution for, 37 minor wounds (mūḍihah), Māliki School on, 36–7 Muʿādh b Jabal: emissary in Yemens, 89 legal rulings, used in, 93 narrative, acceptance of, 93–4 reporting of, 92–3 woman’s diyah, narrative on, 88–92 Mughīra’s ḥadīth, 154–6 case law, 156 honour killings, justification for, 154–5 Muḥammad b Idris Al-Shāfiʿi and sunnah, 38 murder offences (Pakistan): classification of, 120 gender neutrality in, 120–1 intentional (qatl-al-ʿamd), 120 semi-intentional (qatl shubh- al-ʿamd), 120 Muslim scholars and jurists on women, 86–8 Muslims and non-Muslims: citizenship solidarity paradigm and, 60–2 diyah of, 61 Muslims (Nigeria) and implementation of Sharīʿah, 167 mutual assistance (tanāsur), ʿāqilah and, 56–7 mutual imprecation (liʿān) (Pakistan), 156–7, 159 narrations or narratives: diyah, on, 85–6 classification of, 88–9 half-diyah in early ḥadīth literature, 92–4 historical background, 89 women’s diyah, on, 88–92 Native Courts (Amendment) Ordinance 1951 (Nigeria), 180 Niger State Sharīʿah Procedure Code 2014, 174–5 Nigeria, 165–86 Constitution see Constitution of the Federal Republic of Nigeria federal arrangement of, 165–6 grievous injury and hurt, 170 historical background, 165–8 Islamic criminal law in, 166 legal redress see legal redress (Nigeria) Northern Nigeria, legal reform and Islamic law, 181–2 ordinary hurt, 170 Panel of Jurists, 166–7 Penal Code, 205 religious diversity, 165–6

 225

sharīʿah codes, enactment of, 167–8 wives in see wife-beating; wives (Nigeria) see also specific headings Nigerian Court of Appeal, appeals from Sharīʿah Court of Appeal, 199 Nigerian courts: CCA and, 187–9 Islamic criminal law, implementation of, 190 jurisdiction, judges’ arrogation of (case law), 192–4 structure, 187–90 Nigerian criminal law regime, 166–7 Nigerian judges: Islamic law, knowledge of, 197–8 nushūz (wife’s disloyalty), 182, 183, 184, 186, 193 obedience to God’s commands, 6–7 Offences against Human Body (Enforcement of Qiṣāṣ and Diyat) Ordinance (first draft 1980) (Pakistan), 114–16 diyah and, 114 ‘one man to two women’ principle, 69 ‘one-third’ formula (diyah), 94 authenticity of questioned, 94–5 homicide and bodily injuries, in, 94–5 ordinary hurt (Nigeria), 170 Pakistan: case study, 109–41 constitutional and legal development, 109–12 court structure, 111 (fig) federal constitutional government of, 109–10 Islam and, 110–11 Islamisation of law, 112–13 judiciary, 111–12 ordinances, 112 population, 110 pre-1990 legal framework, 144–6 Qiṣāṣ and Diyat Ordinance see Qiṣāṣ and Diyat Ordinance see also specific subjects Pakistan Criminal Procedure Code (PCrPC), flaws in, 118 Pakistan Law Commission on ʿāqilah, 137 Pakistan Penal Code (1860) (PPC), 112, 204–5 ʿāqilah, absence of in, 137–41 diyah interpreted in, 138–9 flaws in, 118 penalty for honour killings, 152–3 Qiṣāṣ and Diyat Ordinance incorporated in, 119 taʿazīr (award) under, 119–20 Pakistani judiciary, honour killing cases, treatment of (case law), 149–52 Pakistani jurists’ preference for qiṣāṣ, 155–6

226  Panel of Jurists (Nigeria), 166–7 parent-child relationship (Pakistan): case law, 127–9 origin of, 124–5 scholars’ discussion of, 125–7 parental disobedience (Pakistan), honour killings on grounds of (case law), 151–2 parental relations in murder cases (Pakistan), 123–4 (case law) mitigating factor, as, 123–9 penal responsibility, joint and individual, 49 perpetrators and ʿāqilah, 44–5 personal laws (Nigeria), codification of ignored, 191–2 Plato: gender equality, on, 4–5 justice, on, 4 Polemarchus on justice, 3, 4 political and judicial office and men, 32–3 preference see elimination or preference method property owners, women as see women as property owners Prophet Muḥammad: ʿāqilah, on, 43–4 companions of, 14–15, 18, 29, 35–6 public welfare (maṣlaḥah), 17, 43 Pukhtuns’ (Pakistan) attitude to women, 130 qasāmah proceedings (Nigeria), 173–4 qatl-i-amd (Pakistan), 123, 152–3 qiṣāṣ (just retribution), 23, 66 ascendant exempted (Pakistan), 121 Pakistani jurists’ preference for, 155–6 purpose of, 25 women can waive or compound (Pakistan) (case law), 121–2 Qiṣāṣ and Diyat Ordinance (Pakistan), 119–22 changes to, 119 commencement date, 119 evolution of, 112–13 gender issues, under, 122–41 Pakistan Law Commission and, 55–6 Pakistan Penal Code, incorporated into, 119 perception of (case law), 139 wife murder and, 123–4 qiṣāṣ (Nigeria): husband’s grievous hurt to wife, 183–4 legal framework of, 169–82 penalty of (cases), 170–1 related offences (Nigeria) and individual rights, 175 qiyās (analogical deduction), 17, 21 sunnah and, 39 Qurʾān, 14–15 establishment of justice, 7–8 grievous harm to women in Nigeria, 182–4

Index homicide and bodily injuries in see homicide and bodily injuries in Qurʾān intertextuality and women’s empowerment, 68–9 justice in, 6 men and women, treatment of in, 203–4 retribution in, 78 women as property owners in, 50–2 zina, suspicion of and, 159–60 registers (diwāwīn), 53 remittance by woman’s family, 26–7 retribution, 79–80 bodily injuries, in, 29–34 intentional loss of life and, 26 law of just retribution, 49 loss of life, for, 25–7, 83 minor injuries, for, 37 Qurʾān, in, 78 revenge and vengeance in pre-Islamic Arabia, 22–3, 49 ham (bird), 23 salam contract, 67 science and technology and gender roles, 34 semi-intentional homicide (qatl-b al-sabab) (Pakistan), 120 sequencing approach: abrogation (al-naskh) and, 79–80 elimination (al-tarjīḥ) and, 79–80 women’s diyah narrative in, 91 Shāfiʿi, Imām and sunnah, 38–9 Shāfiʿi School, ʿāqilah’s obligation to pay compensation, 46 Sharīʿah: conceptualisation of, 10–14 definition, 11–12 divine and human components, 11 fiqh and distinguished, 13 gender justice and, 9 sharīʿah codes (Nigeria), enactment of, 167–8 Sharīʿah Courts of Appeal (SCA) (Nigeria), 187–9 Court of Appeal, appeals from, 199 Sharīʿah Courts of Appeal (SCA) (Nigeria) jurisdiction: criminal appeals to, 188–9 Sharīʿah Penal Code and, 200–1 sharīʿah (Nigeria), implementation of by Muslims, 167 Sharīʿah Penal Code 2000 cases (Nigeria), 199–200 Appeal Courts’ (Nigeria) consideration of, 196–7 High Courts’ (Nigeria) consideration of, 196–7 Sharīʿah Penal Codes (Nigeria), 167 court’s jurisdiction, 200–1

Index gender equality and, 175–6 ‘human being’ and, 175–6 implementation of, 168 Shariat Appellate Bench (Pakistan), 111 shijāj (facial injuries), 36–7 social and gender status, 83 equality and, historical approach to homicide and bodily injuries, 81 Socrates and justice, 4 spouses, testimony of, 71 state legislation (Nigeria), Zamfara Code 2000’s undermining of (case law), 190–4 state welfare and women, 53–4 Sudanese Penal Code for Northern Nigeria, 167 sunnah, 15–16 concept of, 37–8 Imām Shāfiʿi, and, 38–9 interpretation of, 38–9 Māliki School and, 39, 40 Muḥammad b Idris Al-Shāfiʿi and, 38 oral and written recording of, 15–16 Prophet Muḥammad’s companions, of, 38 qiṣāṣ and, 39 retribution for minor injuries, 37 taxation and citizenship solidarity, 58–9 Thrasymachus on justice, 3–4 travel and women, 32 tribal affinity and ʿāqilah, 56 ʿUmar b Khaṭṭāb: athar of considered, 161–2 decisions of, 103–4 social welfare policy of, 53 women’s half-diyah and, 99–101 unintentional homicide (qatl-al-khatʿa), 120 compensation for, 49–50 diyah and, 98–9 judgments (Nigeria), ʿāqilah not referred to in, 192 women’s half-diyah and, 99–100 uṣūl al-fiqh defined, 12–13 victim compensation fund, 59 victims: compensation for (Pakistan), 114 heir-centred welfare component, 45 ‘victim justice’ (Pakistan) was ‘criminal justice’, 119 wal jurūḥ qiṣāṣ see wounds equal for equal wife-beating (Nigeria), 183 examples of ‘hurt’, 185 Qurʾanic ruling on 184 state-encouragement of, 184 wife-murder (Pakistan) and qiṣāṣ, 123–4 witnesses, women as, 67

 227

wives (Nigeria): disloyalty (nushūz), 182, 183, 184, 186, 193 husband’s grievous hurt to and qiṣāṣ, 183–4 women: ʿAbbāsid dynasty, in, 86 ʿāqilah and, 45–6, 50 children, responsibility for, 33 diyah, and, 27–8, 84–5 diyah and inheritance, 64–71 dress code, 32 economic argument of asymmetrical diyah and, 74–5 Egyptian women’s testimony (13th century), 70 empowerment and intertextuality, 68–9 financial ability of, 54–5 financial support and, 75 inheritance equal to men’s, 65–6 Islamic criminal justice and, 205–6 loss of life, remittance for, 26–7 Muslim scholars and jurists on, 86–8 Qurʾān, treatment of in, 182–4, 203–4 state welfare and, 53–4 travel and, 32 witnesses, as, 67–8 women as property owners, 50–2 hadith, mentioned in, 51–2 Qurʾān, in, 50–1 women (Nigeria): grievous harm to and Qurʾān, 182–4 husband’s grievous hurt to, 182–5 legal redress and homicide, 177–8 right to legal redress and Zamfara Code 2005, 178 Zamfara Code 2005 and, 182–5 women (Pakistan): badl-al-ṣulḥ and, 129–32 disqualification from leadership, 114–15 diyah, 115–16 exchange of as compromise, 131–2 honour of, 143–4 organisations, 115, 116–17 protection of in honour killings (case law), 152–4 Pukhtuns’ attitude to, 130 rights and gender justice, 9 qiṣāṣ, waiving or compounding of (case law), 121–2 status of in Islamic literature, 117 Womens’ Division, 115–16 womens’ diyah, variation in, 89–90 womens’ diyah narratives, 88–92 differences in discussed, 90–1 ‘one-third’ formula, on, 94 sequencing approach and, 91

228  womens’ half-diyah: ʿAli b Abī Ṭalib and, 99–100 ʿUmar b Khaṭṭāb and, 99–101 unintentional homicide and, 99–100 Yusuf al-Qaraḍāwi and, 25, 29 womens’ intellectual inferiority, 71–4 Abū Shaqqa on, 73–4 argument for, 71–2 hadith and, 73 womens’ testimony: acceptance of, 71 Egypt (13th century), in, 70 hadith, narrators of, 68–70 ‘wounds equal for equal’, 30 violation of, 30

Index Zamfara Code 2000 (Nigeria): diyah under, 195–6 judges’ arrogation of jurisdiction, 194 Nigerian Appeal Court’s consideration of cases under, 196–7 state legislation, undermining (case law), 190–4 Zamfara Code 2005 (Nigeria), 169–73 ʿāqilah under, 185 diyah under, 195, 196 women, and, 182–5 womens’ right to legal redress, 178 zina (Pakistan), 147, 149, 154 (case law), 161 honour killings on grounds of (case law), 151–2 suspicion of and Qurʾān, 159–60