Identifier
Created
Classification
Origin
02ABUJA959
2002-03-26 12:17:00
CONFIDENTIAL
Embassy Abuja
Cable title:  

NIGERIA: READOUT ON SOKOTO APPEALS COURT HEARING

Tags:  PGOV PHUM SOCI NI 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
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).


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.


--------------
A FAIR HEARING
--------------



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.


--------------
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.


--------------
Comment
--------------



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