NIGERIA: LOCAL SHARI'A COURT DENIES APPEAL OF

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.


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Comment
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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