US embassy cable - 02ABUJA38

C O N F I D E N T I A L SECTION 01 OF 03 ABUJA 000038 
 
SIPDIS 
 
 
E.O. 12958: DECL: 1.6X6 
TAGS: PGOV, PHUM, PREL, SOCI, NI 
SUBJECT: NIGERIA: SOKOTO STONING SENTENCE FOCUSES ATTENTION 
ON SHARI'A 
 
REF: A. 01 ABUJA 2700 
     B. 01 LAGOS 2881 
 
 
Classified by CDA Andrews for reason 1.6x6 
 
 
1. (C)  Summary: The death sentence imposed against Safiya 
Husseini has generated international and domestic attention, 
lending her case political overtones perhaps more significant 
than its legal ones.  To a certain degree, the judgment 
against Husseini has also put Nigerian Shari'a on trial. 
International human rights groups as well as several 
politicians and public figures have chafed at the verdict. 
Hard-liners in the North, insisting the sentence be executed, 
have reacted testily, viewing the criticism as the 
encroachment of non-believers into their religious practice. 
Many moderate Muslims feel caught in the middle, not wanting 
to see Husseini executed for adultery, but unwilling to 
publicly oppose the sentencing for fear of being deemed 
backsliding Muslims.  Against this backdrop, the quintet of 
lawyers working on Hussaini's appeal does not hold much hope 
for reversing the sentence until the case reaches the 
Nigerian Supreme Court.  End summary. 
 
 
2. (U)  In early October Husseini was sentenced to death by 
stoning for the crime of adultery.  The Shari'a trial judge 
determined her pregnancy was conclusive proof of adultery 
since Husseini was not married.  However, citing lack of 
proof because only Husseini offered testimony identifying her 
partner, the court absolved the man who Husseini claims 
fathered her child.  (Execution of the sentence has been 
postponed until the child has been completely weaned.) 
Shortly after the sentencing, Husseini was secreted from her 
village and is currently residing in an undisclosed "safe 
house." 
 
 
3. (U)  Through much of November and early December, the 
stoning sentence against Husseini attracted much public 
debate and attention.  Editorials and articles in daily 
newspapers and weekly magazines were common fare.  However, 
President Obasanjo's signing of a putatively adulterated 
electoral law and Justice Minister Ige's tragic assassination 
have pushed Husseini's case from center stage for the time 
being.  As the shock from Ige's death diminishes with time 
and if the electoral law drama attains denouement, Husseini's 
ordeal could return to the political spotlight. 
 
 
4.  (C)  Husseini's case is symbolic on several fronts. 
First, it highlights the inevitable collision between 
criminal Shari'a and secular law, particularly the 
constitutional prohibition against cruel and unusual 
punishment.  Second, it shows that Nigeria's Muslims are not 
monolithic in supporting criminal Shari'a nor the capital 
sentence imposed in this specific case.  The several schools 
of thought can be segregated into two major camps.  Islamic 
fundamentalists and conservatives uphold the stoning sentence 
as a proper outcome under Shari'a.  The other camp views the 
verdict as too harsh and that the facts particular to the 
case, such as Husseini's ignorance of the law, the lack of 
witnesses and the possible orphaning of the child, mitigate 
against capital punishment.  (Note that most do not oppose 
criminal Shari'a in principle, but are uneasy about the 
application of its harshest elements and about whether often 
ill-trained, overzealous local judges adhere to the stringent 
procedural safeguards that Shari'a contains before imposing a 
"hard" sentence.)  Third, perspectives of the case also 
cleave along the religion/regional divide in Nigeria.  While 
Northern Nigerians do not unanimously agree with the 
sentence, Southern public opinion is more solidly against the 
sentence.  Except for a few Islamic clerics based in the 
South, most Southerners who have commented publicly contend 
that no one has the right to cast the first stone in this 
case.  Fourth, the case reveals the gulf between the 
fundamentalist concept of human rights that hold sway among 
elements many in Northern Nigeria and the view of more 
western-oriented thinkers, particularly human rights 
activists, who consider the punishment draconian and 
indefensibly disproportionate to the severity of the crime. 
 
 
---------------- 
In the Courtroom 
---------------- 
 
 
5. (C)  During a December conversation with Polcouns, 
attorney Hauwa Ibrahim (strictly protect), one of a quintet 
of lawyers representing Husseina, was not sanguine about the 
Shari'a appeals court reversing the lower court's decision. 
She thought it unlikely a Shari'a court in the North would 
overturn the decision, given the case's visibility and the 
verdict's popularity among a vocal segment of the Northern 
population.  After being heard by the Shari'a appeals court, 
the case would move to the Federal Court of Appeals.  From 
there, the next and final stop would be the Supreme Court. 
(Neither the entire Federal Appeals Court nor the Supreme 
Court would hear this case.  At these stages, each court 
would empanel a smaller group of Islamic scholars from among 
the courts members to hear the appeal.)  Based on a private 
conversation with Supreme Court Chief Mohammed Uwais, Ibrahim 
felt Husseini's appeal would receive a sympathetic hearing. 
Uwais had said he "was waiting for the case," confided 
Ibrahim.  Uwais (strictly protect) made a similar statement 
to the Charge in a recent private conversation. 
 
 
6. (C)  In addition to the obvious argument that the stoning 
sentence is constitutionally awry (cruel and unusual,) 
Ibrahim also believe the weight of Islamic jurisprudence 
argues for a reversal of the lower court decision.  The 
attorney contended that even a strict interpretation of the 
Koran and relevent Hadiths did not compel the death sentence 
in the case of adultery (zina.)  According to Ibrahim, the 
trial judge mechanistically adhered to a hard-line 
interpretation of Maliki jurisprudence.  (Maliki is the 
dominant school of Sunni thought in Northern Nigeria.)  Under 
most schools of Sunni jurisprudence, an unwed woman's 
pregnancy is not conclusive proof of adultery.  However, 
unwed pregnancy can be considered very strong presumptive 
evidence of adultery in Maliki philosophy. 
 
 
7. (C)  Ibrahim maintained that the trial judge erred in 
applying this stringent interpretation of Maliki thought. 
There is no formal rule compelling a judge to adhere to the 
Maliki school when equity and the weight of Islamic law argue 
for a more lenient verdict, she explained.  Additionally, 
Ibrahim asserted, there were several procedural errors with 
the conduct of the trial that would also warrant a reversal 
on appeal.  While Ibrahim envisioned a favorable outcome in 
the Supreme Court, she was concerned that political pressures 
and considerations would complicate the tasks of both the 
attorneys and judges all along the appellate process. 
 
 
------------------------------------------ 
Will Politics Affect The Law or Vice Versa 
------------------------------------------ 
 
 
8. (C)  The best way to minimize political interference, 
asserted Ibrahim, was to treat the case as a debate between 
different views of Islamic jurisprudence.  By treating it as 
an intra-religious matter, progressive and moderate Islamic 
jurists would be free to adjudicate according to their 
conscience.  However, she was concerned that an overt public 
campaign by non-Muslim sources against the sentence, 
particularly the Western human rights community, would unduly 
politicize the situation.  Hard-liners would portray the 
criticism as a general attack on Shari'a and Islam by Western 
interlopers.  At that point, moderates would be hard pressed 
not to side with the conservatives lest they be deemed weak 
of faith. 
 
 
9. (C)  There is also the sticky issue of religious and 
national pride.  Northern Nigerians do not respond positively 
to moral lectures from outsiders.  Although knowing an 
outsider might be rendering sound counsel, many Northern 
leaders would ignore that advice out of spite if they viewed 
the advice as tainted by outside moralizing belittling their 
religious and cultural practices.  To avoid a dynamic that 
would harden positions regarding the Husseini case, Ibrahim 
hoped that the international human rights community would 
take a low key approach, giving the matter a chance to wind 
its way to the Supreme Court without becoming too much of a 
political hot potato. 
 
 
10. (C)  Ibrahim also felt that sustained criticism from 
predominantly Christian Southern Nigeria could negatively 
impact the case.  Before the storm over the electoral law 
consumed his attention, Senate President Anyim Pius Anyim was 
one of the most visible Southerner to criticize the Husseini 
verdict.  The late Attorney General Bala Ige also publicly 
condemned the sentence as atavistic.  A few Lagos-based human 
rights activists have also rued the verdict.  However, 
perhaps showing their knowledge of religious and regional 
sensitivities, their criticism has been more circumspect that 
what might have been expected. 
 
 
11. (C)  Notwithstanding Ige's criticism of the sentence, the 
Federal Government has trod gingerly.  President Obasanjo has 
repeatedly stated his dislike for "political Shari'a."  But 
what is "political" in any given instance is in the eye of 
the beholder.  Should Obasanjo seek to intervene he would 
become susceptible to the accusation of politicizing what is 
essentially a judicial matter.  Also, Obasanjo remembers the 
flak his Administration, particularly Vice President Atiku, 
received because of its ambivalent position when criminal 
Shari'a was inaugurated by several Northern states last year. 
 Already vulnerable to criticism in the North and with 
elections looming next year, Obasanjo probably is reluctant 
to run through a similar political fusillade over the fate of 
one individual.  Thus, for the GON, the path of least 
resistance is to watch the appellate process run its course, 
in hopes of a successful outcome.  If the appeal is not 
successful, the GON would have to grapple with a 
political-moral dilemma: deciding whether to pardon Husseini 
or somehow commute the sentence.  (Comment: Press reports 
have indicated that the Ministry of Women's Affairs earlier 
had filed an appeal on behalf of Husseina.  Apparently that 
appeal has been withdrawn or is dormant.  End comment.) 
 
 
---------------------------------- 
The Person In The Eye Of The Storm 
---------------------------------- 
 
 
12. (C)  While a lot of attention has been paid to the 
political and legal ramifications of her trial, few have paid 
attention to the actual welfare of Husseini. According to 
Ibrahim, Husseini is a simple bucolic woman who does not 
quite understand the maelstrom in which she finds herself. 
Husseini just wants to return to her normal life, Ibrahim 
indicated.  For now, Husseini is safe.  Her actual 
whereabouts are known only to a few.  However Ibrahim is 
concerned that Shari'a vigilantes, commonly known as Hizbah, 
are searching for Husseini.  Ibrahim worries that these 
vigilantes, mostly young ruffians under the control of a 
local cleric or politician, would not hesitate to execute the 
stoning should they locate Husseini.  Ibrahim recounted how 
she has deflected numerous inquiries from people who she 
suspected of feigning concern for Husseini in order to find 
her and execute their fatal form of justice. 
 
 
------- 
Comment 
------- 
 
 
13. (C)  For now, Husseini is not under the immediate threat 
of execution.  No one in authority seems eager to have her 
killed.  Several Islamic scholars have stated that Shari'a 
does not seek to punish people who are prone to accept 
ostracization from the Muslim community (Ummoh.)  If she does 
not step forward, the authorities should not try to find her 
is their solution to the case, these scholars argue.  In this 
way, the verdict is not overturned, Shari'a punishment 
(hudud) is not constitutionally challenged yet Husseini's 
life is spared.  This could be a probable "compromise" 
outcome, although the specter of the vigilante Hizbah would 
follow her.  Also, she would, in effect become a permanent 
fugitive.  Like most compromises, this result is imperfect 
but it is the least volatile politically. 
 
 
14. (C)  From a human rights standpoint, a successful appeal 
would be more welcome.  However, if and when the case reaches 
the Supreme Court, the panel of Justices will probably 
reverse the case on one or more of a number of procedural 
irregularities committed by the trial court.  This tack might 
dispose of Husseini's case, but it would also skirt the 
larger issue - - whether some traditional hudud sentences 
affront the constitutional bar against cruel and unusual 
punishment and are not in accordance with Nigeria's treaty 
obligations.  Nevertheless, any verdict that reverses the 
trial courts would produce a hue and cry among some elements 
in the North that the GON and its judiciary are anti-Islamic 
and anti-Northern, despite the presence of Northerners in the 
Supreme Court.  On the other hand, denial of the appeal and 
the subsequent execution of Husseini would be a tragic blow 
for human rights in Nigeria.  For most Nigerians, Husseini is 
more a symbol than a person.  In the end, the Husseini case, 
although very salient, represents just a step in what 
promises to be the long process of trying to reconcile the 
different schools of Islamic jurisprudence in Nigeria while 
also finding a modus vivendi between Shari'a and the human 
rights precepts of modern constitutional law. 
Andrews