US embassy cable - 02ABUJA959

C O N F I D E N T I A L SECTION 01 OF 03 ABUJA 000959 
 
SIPDIS 
 
 
E.O. 12958: DECL: 03/26/2012 
TAGS: PGOV, PHUM, SOCI, NI 
SUBJECT: NIGERIA: READOUT ON SOKOTO APPEALS COURT HEARING 
 
 
CLASSIFIED BY AMBASSADOR HOWARD F. JETER. REASON 1.5 (D). 
 
 
  1. (C) Summary: Media reports indicate that the Sokoto 
Sharia appeals court on March 25 reversed a lower court 
stoning sentence, clearing Safiya Husseini of all charges in 
the case. During a March 22 conversation with PolCouns, Hauwa 
Ibrahim, one of Husseini's attorneys, stated that the Sokoto 
appellate court had listened intently to several defense 
arguments, particularly the theory that the trial verdict was 
improper because it was retroactive. Although the weight of 
law favored Safiya, there was significant political pressure 
on the judges to affirm the verdict. It remains to be seen 
whether Sokoto State will let the matter rest or will appeal 
in federal court. End Summary. 
 
 
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A FAIR HEARING 
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2. (SBU) During a March 22 meeting with PolCouns, Ibrahim 
capsulated the Sokoto Sharia Appeals Court proceedings in the 
Safiya Husseini stoning case. During the hearings, the 
defense team presented arguments along three lines: (a) 
Constitutional Law, (b) Islamic Procedural Law; and (c) 
Islamic Substantive Law. 
 
 
 
 
3. (SBU) The constitutional points argued most strenuously 
were that the sentence was retroactive and that Safiya was 
not adequately informed of the charges against her. Section 
36 (8) of the 1999 Constitution protects a person from 
subsequently being criminally liable for an act that was not 
a crime when committed. The same section also provides that a 
criminal penalty cannot be harsher than the penalty in force 
at the time the act was committed.  In Safiya's case, the 
alleged adultery occurred before criminal Sharia was 
established in Sokoto.  Thus, the Sharia code is 
inapplicable, according to the defense's position. Instead of 
applying Sharia proscriptions, the court must look to Sokoto 
Criminal and Penal Codes then extant to determine whether a 
crime occurred and, if so, the applicable punishment. 
Ibrahim remarked that the judges spent more time on this 
argument than any other during the hearings. 
 
 
4.  (SBU) The other constitutional ground vigorously argued 
is Section 36 (6), which provides a defendant must be 
apprised in a language he understands about criminal charges 
against him.  Ibrahim explained the sentencing court did not 
thoroughly explain the nature of the offense and punishment 
to Husseini.  During his questioning of Husseini, the trial 
judge also used Arabic words such as "zina" when describing 
the crime of adultery.  Safiya is an uneducated rural woman 
who knows no Arabic and thus did not understand the legal 
implications of "zina" and other words, Ibrahim asserted. 
 
 
5.  (C) Comment: The bench's focus on these arguments proved 
to be a positive indication of how the judges were leaning. 
By accepting these legal theories, the court could manage to 
save Safiya yet sidestep the more nettlesome legal issues, 
particularly the constitutional prohibition against cruel and 
unusual punishment.  The argument that the sentence 
constitutes cruel and unusual punishment was part of the 
defense's formal brief; however, a tactical decision was 
taken not to make it the cornerstone of their presentation to 
this particular court.  The lawyers felt the argument would 
engender little support and might produce animosity in a 
Sharia court. End comment. 
 
 
6.  (C) Regarding Islamic procedural law, the trial erred by 
not providing Safiya time to prepare nor was she given a real 
opportunity to have counsel or examine witnesses, the defense 
contended. Regarding Islamic substantive law, the purported 
confession was not valid, Ibrahim asserted. The "confession" 
was not a statement freely made by Safiya, but the melding of 
answers to a battery of confusing, leading questions asked by 
the trial judge. Also, the trial court did not allow Safiya 
the opportunity to withdraw her "confession," a right 
provided under Sharia law.  Ibrahim recalled that the lower 
court transcript showed that the man Husseini said had 
intercourse with her also admitted to intercourse but was 
later absolved when he began obfuscating his replies to the 
judge's questions. Ibrahim maintained that the court erred, 
under Maliki jurisprudence, in considering pregnancy 
conclusive proof of adultery. (Maliki is the prevailing 
school of Islamic thought in Nigeria.) Under the Maliki 
"hidden embryo" doctrine, a women can become pregnant five 
years after a divorce yet the pregnancy still can be 
attributed to the marriage, thus removing the stigma of 
adultery. During the hearings, the defense team asserted a 
finding of adultery required four independent witnesses who 
viewed the same alleged act at the same time. 
 
 
7. (C) Last, the defense argued that stoning was not mandated 
by the Koran. Ibrahim said the court also focused heavily on 
this aspect of the case, questioning both sides whether 
stoning for adultery was based on the Koran and thus 
mandatory, or Maliki hadith (traditions and custom) or fiqh. 
If either of the latter two apply, the court could more 
easily exercise its discretion to reverse the trial decision, 
she claimed. 
 
 
8.  (C) Despite the judicial attention paid to key defense 
arguments and the impartiality displayed during the hearing, 
Ibrahim was unsure at the time of the conversation whether 
the panel had been sufficiently swayed. She cited local 
social and political pressure on the judges as the main 
reason for her uncertainty. A Sokoto-based colleague 
recounted to her a conversation with one of the judges who 
complained about being drawn into a swell of controversy by 
the case.  Stressing that Sharia was very popular in Sokoto, 
she mentioned that comments from the gallery were 
overwhelmingly for the sentence and not very complimentary 
toward her and the other defense attorney's status who were 
called impious Muslims. (Comment: Faced with the prospect of 
social opprobrium and the potential of threats to their 
personal safety, the judges could have easily ignored the 
legal merits of the defense arguments and opted for the easy 
way out. Apparently, the judges stuck to their consciences 
and ignored the political flak swirling around them.  Quite 
possibly, they might have received signals from key political 
figures in Sokoto and beyond that this case had gone too far 
in attracting the wrong type of publicity and that they 
should take any avenue allowing them to reverse the sentence 
without undermining Sharia.  End comment.) 
 
 
9.  (C) Because they did not understand Sharia in its 
totality, particularly those aspects dealing with social and 
economic justice, outsiders seriously erred and 
underestimated Sharia's popularity with the average 
Northerner.  Sharia is more than imposing harsh criminal 
punishments, maintained Ibrahim.  In fact, the central theme 
underlying all the defense's arguments was that the stoning 
sentence would not have occurred if Sharia's tenets had been 
observed properly.  Under Sharia, a stoning sentence was 
exceedingly rare. She hoped that outside commentary would be 
kept to a minimum so that Nigeria's Muslims could "clean 
their own house." However, critical statements from 
foreigners and even non-Muslim Nigerians only inflamed and 
blurred the issue, forcing people to choose between the 
extremes of either being against Sharia or unquestioningly 
supporting a political phenomenon its adherents had labelled 
as Sharia.  For Nigerian Muslims, this was a Hobson's choice. 
Wanting to be viewed as faithful, most people would choose 
this politicized variant of Sharia, no matter how skewed it 
might be. 
 
 
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Courtroom Theatrics Even In Sokoto 
----------------------------------- 
 
 
10. (C) To comply with tradition in Sharia courts, the 
defense team selected a Sokoto-based male attorney who was 
versed in Arabic to act as lead counsel at trial although not 
the most senior member of the defense team.  Despite this and 
other defense attempts to maintain proper decorum, the 
hearing on March 18 took on a carnival air.  When Safiya 
entered the court, she was greeted like a "rock star." 
First, the gallery fell silent.  Then there was a rush, as 
people pushed to take photographs with her.  Even the 
prosecuting attorneys joined the queue.  At one point, an 
imposter claiming to be Safiya's attorney approached Ibrahim 
soliciting funds for her purported client.  When Safiya 
walked over and acknowledged Ibrahim, the huckster quickly 
disappeared into the throng. 
 
 
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Comment 
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11.  (C) While the reversal brings a sigh of relief,  there 
are three similar stoning cases in Sokoto and another in 
Katsina State. Unfortunately, some of the procedural errors 
that helped win Safiya's reversal may not be present in the 
other situations. Hard-line Sharia advocates who see the 
Safiya reversal as a blow against Sharia will try to make 
sure the sentences in the next cases are procedurally correct 
and more immune from appellate reversal. Non-Muslims who see 
the reversal as a mortal blow to criminal Sharia will be 
mistaken.  As Ibrahim stated, Sharia is popular with many 
Nigerian Muslims.  It is a social and political force that 
cannot be disbanded by one adverse ruling in one state. Even 
those politicians who exploited Sharia to bolster their 
popularity cannot control it now.  Sharia is Northern 
Nigerian populism, much to the chagrin of the region's 
political elite who are accustomed to tight control of their 
area. 
 
 
12. (C) As these other cases proceed, we will be faced with 
the same human rights considerations regarding the imposition 
of cruel and unusual punishment.  However, we must be careful 
that our interests are not misconstrued as attacks against 
Sharia or Islam.  Care should be taken to distinguish between 
legitimate Sharia and the unfortunate verdicts sometimes 
rendered by overzealous and untrained trial court judges. We 
must maintain our stance in protection of human rights but 
avoid sweeping statements about Sharia.  As the reversal 
proves, while virtually all Muslims embrace Sharia, there are 
vastly different views within Nigeria's Moslem community 
about Sharia's procedural and substantive safeguards when it 
comes to the criminally accused. By making sure our 
statements and actions are well calibrated to promote human 
rights but not to make Sharia seem valueless, we will help 
people like Ibrahim and other moderates whose embrace of 
Sharia also encompasses protection of fundamental human 
rights. 
Jeter