US embassy cable - 02ABUJA2506

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 002506 
 
SIPDIS 
 
 
E.O. 12958: DECL: 08/23/2012 
TAGS: PGOV, PHUM, PREL, SOCI, NI 
SUBJECT:  NIGERIA: LOCAL SHARI'A COURT DENIES APPEAL OF 
ADULTERY CONVICTION OF AMINA LAWAL 
 
 
REF: ABUJA 00038 
 
 
Classified by Ambassador Howard F. Jeter; Reasons 1.5 (B) and 
(D). 
 
 
1. (C) Summary: The upper Shari'a court in Fantua, Katsina 
State August 19 denied the appeal of Amina Lawal, convicted 
of adultery and sentenced to death by stoning.  Poloffs twice 
met Lawal's chief attorney Hauwa Ibrahim (strictly protect), 
once prior to the appellate decision and immediately after 
the appeal was denied. Ibrahim said that she presented a case 
grounded in both Shari'a and constitutional law.  Ibrahim 
believed that under both Shari'a and secular law her 
arguments were sufficient to win acquittal, but the judge, 
bowing to local pressure and community sentiment, disregarded 
the law in order to satisfy spectators in the crowded 
courtroom.  Ibrahim recalled the judge proclaiming in his 
decision that the constitution was inferior to Shari'a law. 
The decision was greeted by loud cheers and jubilation. 
Ibrahim has swiftly appealed to the Shari'a Appeals Court in 
Katsina.  If unsuccessful there, the case next moves to the 
Federal Court of Appeals, then the Supreme Court.  The issue 
of whether harsh Shari'a punishments abridge the 
constitutional prohibition against cruel and unusual 
punishment will take center stage should the case reach the 
federal appellate panels.  End Summary. 
 
 
2. (U) On August 16, Hauwa Ibrahim updated Poloffs on Amina 
Lawal's case. Also present were Ms. Lawal and her baby. As 
the first female attorney allowed to argue before a Nigerian 
Shari'a court, Ms. Ibrahim built a defense based on the facts 
of the case, constitutional law, legal procedure, and 
Shari'a.  In her closing arguments, Ms. Hauwa Ibrahim 
asserted that the Nigerian constitution guaranteed Ms. Lawal 
the right to life.  She further argued that Ms. Lawal had 
been denied her constitutional right to counsel, since she 
had no legal representation at the original trial.  Her final 
point was that the Shari'a act as passed by the Katsina 
legislature, guaranteed the case be heard by a panel of three 
judges, but Ms. Lawal's case was heard by only one.  Ibrahim 
also contended that Shari'a could not be applied 
retroactively, an argument used successfully in the Safiya 
Husseini appeal. (Ref. A) 
 
 
3. (U) Earlier in the appeal proceedings, Ibrahim argued that 
Ms. Lawal's initial confession of guilt was borne of a lack 
of understanding of the charges of the law.  There is a clear 
precedent that the accused is allowed to retract a 
confession; the court, however, refused to accept this from 
Ms. Lawal. 
 
 
4. (U) Ms. Ibrahim believed her case was strong but feared 
that popular sentiment would compel the judge to deny the 
appeal. Realizing that local political and social imperatives 
might outweigh sound legal argument, Ms. Ibrahim had already 
prepared the appeal for the Shari'a Appeals Court. 
Unfortunately, Ibrahim was prescient. 
 
 
5. (C) Poloffs met Ibrahim August 20, the day following the 
court announcement.  Although she realized the chance of 
victory was slim at the lower court, she still felt 
emotionally deflated by the verdict.  The next avenue of 
appeal is the Shari'a Appeals Court. 
 
 
6. (C) The atmosphere in the courtroom for the August 19 
decision was more akin to a political rally than a judicial 
proceeding, according to Ibrahim.  The room was packed. 
Students of local "Koranic" schools who are nothing more than 
street beggars filled the room, murmuring religious quotes 
and deriding defense counsel.  Many people appeared to have 
been trooped in from other localities in order to augment the 
hard line presence. The Shari'a judge apparently decided to 
play to the crowd, dismissing all arguments of the defense. 
The judge asked the crowd whether he should apply man's law 
or God's. Ibrahim lamented that this statement would not have 
been so bad if the judge had correctly interpreted Islamic 
law.  The judge dismissed out of hand the possibility that 
Lawal did not understand the charges against her and 
proclaimed her initial confession valid.  He stated that 
Lawal's pregnancy was conclusive proof of adultery under 
Maliki jurisprudence. However, Ibrahim pointed out, Maliki 
thought accepts the "hidden embryo" theory where the 
pregnancy of a formerly married woman could be attributed to 
that union for a period of several years after the marriage 
has ended.  He dismissed as irrelevant any argument that 
conception occurred before implementation of Shari'a in 
Katsina.  Rather, the judge held that the constitution was 
inferior to Shari'a law.  The judge also rejected defense 
arguments as nullities because there is no right of appeal 
under Shari'a.  Finally, the judge commended the police who 
arrested Lawal.  Getting a cheer from the crowd, he decreed 
that it was the duty of good Muslims to arrest anyone 
violating Shari'a law. 
7. (C) Ibrahim felt the judge basically made a mockery of the 
law and his judgement was played to the gallery and did not 
address the legal points made by the defense.  For instance, 
the judge completely sidestepped the issue of how he could 
disregard the constitution and Katsina'a Shari'a penal code 
passed by the State Assembly, when he owed his office to 
these two laws. 
 
 
8. (C) Although it has been reported that the judge ordered 
that the stoning be carried out after the baby is weaned--a 
minimum of sixteen months from now--Ibrahim stated that the 
Fatwa issued for the stoning was scheduled for September 20, 
2003. She fears that vigilantes may attempt to implement the 
sentence no matter what stage the appeal is in.  If the case 
is allowed to run its course, there is ample time for a well 
thought-out appeal, and time for the furor to die down. The 
next step of appeal for Lawal is the Shari'a Court of Appeal 
in Katsina.  This is the same level at which Safiya Husseini 
was acquitted in Sokoto State. 
 
 
9.(C) Ibrahim indentified three major issues which should be 
resolved through the appeals process.  They are the supremacy 
of the constitution as the law of the land, the conflict of 
law between the Shari'a penal codes, expanded Shari'a law and 
Shari'a as derived from Islamic texts, and Nigeria's 
obligations under international human right instruments to 
which it has acceded. 
 
 
------- 
Comment 
------- 
 
 
10. (C) Perhaps more than in Safiya Husseini's case, Amina 
Lawal's may be a litmus test for Shari'a in Nigeria. Should 
the case reach the federal courts it may become the Nigerian 
equivalent of the Scopes trial. If the case makes its way 
into the Federal Appeals Court the constitutionality of 
stringent Shari'a penalties could be tested, and conceivably 
declared unconstitutional. 
 
 
11. (C) With each hearing in the appellate courts, the 
chances for a reversal of Lawal's conviction improve.  Should 
this case move swiftly there are political ramifications, 
particularly in an election year.  Should the case be 
reversed by the federal court, there will be an outcry from 
ardent Muslims that the Federal government is impinging on 
their religious freedom.  Although not involved in the 
judicial process, Obasanjo will be blamed and condemned in 
much of the North.  Should the case reach the Supreme Court 
and that apex court uphold the conviction, Obasanjo faces a 
Hobson's choice.  If he pardons Lawal, Obasanjo will lose 
even more support in the Muslim North which is already 
against him and religious tension will likely rise.  If he 
does not grant a pardon, Lawal will be executed, some 
Christians will accuse Obasanjo of bowing to electoral 
pressure and Nigeria's image in the international community 
will suffer greatly. 
JETER