SUBJECT: CODEL DASCHLE CODEL: TOWARD A BETTER

C O N F I D E N T I A L SECTION 01 OF 02 ABUJA 002674

SIPDIS


E.O. 12958: DECL: 09/13/2012
TAGS: OVIP PGOV PHUM PREL SOCI NI
SUBJECT: SUBJECT: CODEL DASCHLE CODEL: TOWARD A BETTER
UNDERSTANDING OF THE APPLICATION OF SHARI'A IN NIGERIA.


REF: ABUJA 2506


Classified by Ambassador Howard F. Jeter; ReasonS 1.5 (B) and
(D).



1. (C) Summary: On August 31, Codel Daschle met attorney
Hauwa Ibrahim (strictly protect) for a brief on the Amina
Lawal case (reftel) and to receive a general primer on the
legal and constitutional issues arising from the application
of criminal Shari'a in twelve Northern Nigerian states.
Ibrahim stressed that her efforts were not to undermine
Shari'a but to make sure Shari'a was correctly interpreted
and applied and that the decisions of the Shari'a courts
complied with constitutional guarantees of due process and
against cruel punishment. Ibrahim explained the political
minefield that Shari'a has become at all levels of
government, exposing why each branch hopes the other will
render the difficult decisions. Ibrahim also confided that
she feared for her safety because of the high profile stance
she has taken, but stated that she would soldier on in her
legal campaign. End Summary.



2. (C) On August 31, Hauwa Ibrahim updated Codel Daschle on
the Amina Lawal case and other relevant Shari'a issues.
Ibrahim was accompanied by Dr. Kole Shettima, an Islamic
scholar. Ms. Ibrahim summarized for Senators Daschle,
Nighthorse Campbell, Reid and Bingaman her four-pronged
defense of Lawal, which she described as based on the facts
of the case, constitutional law, criminal procedure, and
proper interpretation of Shari'a (reftel).



3. (C) Ibrahim stressed her desire to see Shari'a Law applied
properly in Shari'a States. Emphasizing the need for those
accused under the new Shari'a laws to have legal counsel, she
believed the defendants who have attorneys were being treated
much better than those who did not. She told the Senators
about eleven minors whose theft convictions carry the
sentence of hand amputation (none of which has been carried
out). Working pro bono, Ibrahim stated that she only had the
resources to defend four of the eleven cases. These four have
been acquitted, but the other, attorney-less seven are still
incarcerated awaiting the outcome of their cases. Ibrahim
also informed the Senators that she had been able to quickly
settle several other adultery cases against women, with the
defendants either being acquitted or paying minimal fines.
She said she was following the progress of three other
adultery cases which had recently been reported in the media.



4. (C) Ibrahim explained the difficulties faced in defending
cases in some of the Shari'a jurisdictions. Criminal
procedure and legal codes are different in each of the 12
Shari'a States. Some, such as Kaduna and Sokoto, have both
criminal and procedural codes, while others, such as Katsina
State, only have the criminal code. Responding to a question
from the Senators about the role of the federal government,
Ibrahim stated that the GON could do little at this point.
While the Attorney General has publicly criticized harsh
Shari'a punishments, the constitution did not empower him to
seek an advisory opinion in federal court, against the
constitutionality of Shari'a punishments. Moreover, the GON
cannot prohibit states from enacting Shari'a laws. Shari'a
is recognized in the Federal constitution and enacting
Shari'a is well within the ken of State's rights and powers.
Right now the only thing the GON could do is watch as cases
wound their way through the court system. For instance, the
Lawal case was now before the highest Shari'a Court in
Katsina State. Should that court uphold the conviction,
Ibrahim was committed to seeking relief at the Federal Court
of Appeals. At that juncture, the Ministry of Justice could
perhaps enter the case. Ibrahim believed that neither the
Obasanjo Government nor most Northern governors supported
these harsh penalties, but none would publicly condemn the
punishments, fearing a political backlash in the North for
being seen as anti-Shari'a. (Comment: Ibrahim correctly
pointed out the political quandary faced by the Northern
governors as well as President Obasanjo. A born-again
Baptist Christian, Obasanjo has made his opposition to what
he calls "political Shari'a" known. Any move that Obasanjo
would make would be seen, not as an attempt to spare a life
or protect the constitution, but as confirmation that he was
anti-Islamic and anti-North. It would spark strong reaction
in many quarters. Consequently, the President would like to
avoid seeing a petition to commute a Shari'a sentence reach
his desk. It would be better for him and for political
tranquility if the issue of cruel and unusual punishment were
conclusively decided by the courts. End Comment.)



5. (C) Throughout the meeting Ibrahim returned to the theme
of standing up for the legal rights of the most vulnerable in
society. However, she chafed at being portrayed in the print
media, which is mainly based in the Christian South, as
anti-Shari'a. She denied this claim stating she is pro-due
process and that such labels put her in personal danger and
further complicated the task of representing Amina Lawal and
others.


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Comment
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6. (C) The meeting with Ibrahim again underscored the
inchoate development of Shari'a jurisprudence in Nigeria.
The criminal Shari'a system is new and fraught with
uncertainties. Aspects of the substantive criminal code do
not match with procedural codes in those states which have
both codes. Many local judges only have a superficial,
mechanistic approach to application of Shari'a law, missing
the important tenets of tolerance and equity that are major
aspects of Islamic jurisprudence. The relationship of
Shari'a to the federal constitution must also be defined.
Muslim human rights activists and attorneys like Ibrahim,
must be at the forefront of attempts to reconcile the
application of Shari'a in Nigeria with internationally
recognized precepts of fundamental human rights. We should
support them in carrying out this task.


JETER