AMINA LAWAL: OUTCOMES FOR SHARI'A IN NIGERIA

UNCLAS SECTION 01 OF 03 ABUJA 001976

SIPDIS


SENSITIVE


E.O. 12958: N/A
TAGS: PGOV PHUM KIRF NI
SUBJECT: AMINA LAWAL: OUTCOMES FOR SHARI'A IN NIGERIA

REF: ABUJA 1974


SENSITIVE BUT UNCLASSIFIED, NOT FOR PUBLICATION ON THE
INTERNET OR INTRANET.


Summary
--------------



1. (SBU) The overturning on appeal September 25 of Amina
Lawal's Shari'a court adultery verdict will have different,
though minor, effects on the various Nigerians supporting the
application of Shari'a in criminal law. Opportunist Muslim
politicos and Islamist demogogues are still using Shari'a to
gain support from Nigerians fed up with Nigeria's
dysfunctional legal, political and economic systems, and as a
wedge issue against the GON and northern Nigeria's Muslim
traditional rulers. Their playing field is the many
non-political Nigerian Muslims who support Shari'a out of
religious and regional pride, often truly believing it is
inherently a better system of law.



2. (SBU) As a judicious blend of religious and secular
arguments, the Katsina State Shari'a Appeals Court's decision
(reftel) forces supporters of Shari'a to pay more attention
to the technical merits of cases. It will also force Rule of
Law advocates to consider implementation of Shari'a-based
criminal law on an equal footing with implementation of
secular law in Nigeria. The most recent cases Shari'a courts
have brought to conviction and stoning sentences have been
child molesting/murder, not adultery. And the fact that
Shari'a has been used to judge the poor and weak, not justice
extended to rich and powerful criminals which advocates of
Shari'a claimed as a goal, may come back to haunt the
demogogues who have pushed it. End Summary.


Background
--------------



3. (SBU) Nigeria's Ministry of Justice sets and enforces
standards for judges for both Shari'a and secular courts at
the state level throughout the country, but not the local,
customary or traditional courts that are used as the courts
of first resort. The result is that many judges at the local
level are undertrained, incompetent or corrupted by group
pressure and financial incentives. The Amina Lawal
conviction in the Shari'a lower court, and the Shari'a
Appeals Court's decision overturning it, showed that Shari'a
courts are no different in that respect.



4. (U) Although many Nigerians are interested in Shari'a,
both for and against, they were not much interested in the
Amina Lawal case despite the strong international attention
to it. Those who were interested were most eager for the
issue to reach the federal level, where both the
constitutionality of using criminal aspects of Shari'a and of
the many variations of Shari'a implementation in Nigeria
could be considered. That did not happen.



5. (U) Twelve of Nigeria's 36 states have adopted variations
of Shari'a-based criminal law. They differ on whether
Muslims are required to use the Shari'a courts or have a
choice, and also on punishments, with some states allowing
convicts the choice of a fine or jail time in place of caning
or flogging. Non-Muslims are not required in any state to
submit to Shari'a jurisdiction, but in some states they can
volunteer (usually to avoid jail when they believe a Shari'a
statute either makes conviction more difficult or penalties
less harsh). While a national committee has been established
to reconcile inconsistencies and create some level of
uniformity among the states, little progress has been made.


A Little Bad News for the Islamists
--------------



6. (SBU) The majorities that voted for politicians backing
Shari'a-based criminal law believed that Shari'a courts would
be fairer and quicker, and, most of all, would apply justice
equally to rich and poor -- the driving force behind the call
for Shari'a in the North. But local Shari'a court Kadis are
proving to be just as inept and corrupt as secular court
judges, and Shari'a court prosecutions have not taken on the
high and mighty.



7. (U) Ms. Lawal is a case in point. She was poor, had no
lawyer, and was not sufficiently versed in the law even to
know that under Shari'a no prosecution for adultery could be
made unless there were four simultaneous eyewitnesses to the
crime or the accused confessed. The political optics of the
case were so bad that the Katsina state prosecutor said
publicly that he would not seek a new trial if the Appeals
court voided the conviction.



8. (SBU) If the Shari'a courts are still not seeking to stone
the affluent, however, it does appear they will be finding
less pitiable targets for prosecution. The most recent
stoning sentence, September 25, was for the rape and murder
of three young boys.



9. (SBU) Thus far Shari'a has been a dud for the radical
Islamists, who still lack a strong following in the North.
In formal politics, they have not been able to use it to
overturn the traditional order in northern Nigeria.
Christian President Obasanjo was not forced to take on
Nigeria's Muslims over Shari'a, nor start a potentially
politically disastrous fight with the twelve governors
supporting it, some from his own party. Having lost some of
the divisiveness wind from their political sails, some
Islamists may change tack and look for other ways to gain
power in Nigerian society. Fomenting Muslim-Christian
violence may be one, terrorism could be another, and this
Embassy is working actively against both.


The Governors Supporting Shari'a
--------------



10. (SBU) The call for Shari'a in Northern Nigeria came from
a populace disenchanted with secular justice, but the actual
decision for Shari'a implementation was very political. With
a very low voter turnout and high levels of fraud in the 1999
elections, many governors' positions were tenuous coming up
to elections in 2003. The call for Shari'a was a quick and
easy decision to get some popular support from the Muslim
majority in these twelve states in anticipation of the
elections. Shari'a also afforded governors a chance to show
independence from the central government and demonstrate
their control over events in each of their states.



11. (SBU) While the establishment of Shari'a courts won
praise for the governors at first, many of them hoped never
to actually authorize the use of "hudud" corporal
punishments. Only one death sentence has been carried out in
the entire North in two years. Numerous sentences of
amputation have been pending governors' signatures for
months, and in a few cases for more than a year. Moreover,
none of the states have criminalized apostasy. The governors
are opportunistic politicians who happen to be Muslims, not
Islamist demogogues who have gotten into politics.



12. (SBU) Amina Lawal's case was a minor win for those
governors. As the case did not reach the federal level,
their implementation of Shari'a still has not been
challenged. But the politics of Shari'a above, especially if
disenchantment grows that it is not bringing justice, could
turn the opportunists away from pushing Shari'a as the answer.


The Opponents of Shari'a
--------------



13. (SBU) Opponents of Shari'a still fear it as a symbol to
re-assert Hausa/Fulani dominance over first the north and
then the rest of Nigeria, and as an assault on human rights
and civil liberties. Those opponents had little to cheer
from Laval's conviction being overturned. The Katsina State
Shari'a Appeals Court's decision held the lower Shari'a court
to standards similar to a secular court, and in the process
showed that Shari'a courts can and should be functional.
Moreover, as prosecutors move away from cases where the
defendent could be a poster child against Shari'a, its
opponents will gain less attention from all but their own
communities.



14. (SBU) In the last two years the focus of Muslim-Christian
violence has shifted away from the 12 states with
Shari'a-based criminal law. Although Muslim-Christian
tensions seem to be moving away some from the city streets
back toward college campuses of late, in what many here see
as a normal cycle, both Muslim and Christian communities are
still tinderboxes of unemployed youth. Christian
extremists can set fire to the streets as easily as their
Muslim counterparts, and the Embassy has come out in public
against violence from any quarter.


Outcomes for other Shari'a Cases
--------------



15. (SBU) While Amina Lawal's case only sets a precedent in
Katsina State, it has changed the way Shari'a cases are
prosecuted in all of the states. Muslim legal professionals
working on the implementation of Shari'a in Nigeria were
somewhat emboldened; one Muslim human rights activist lawyer
told us at an Embassy Iftar recently that he and many
colleagues are devoting even more of their time than before
to putting in place the procedures necessary to make
Shari'a-based criminal law work in Nigeria.



16. (SBU) There are currently more than fifty cases in
northern Nigeria with pending hudud sentences of amputation
or death by stoning. The majority of the cases are heading
to some level of appeal, although probably no further than
the Shari'a Appeals Court in their state for decisions
similar to the Lawal case. Prosecutors are already tending
to seek more clear-cut capital offense cases, usually with
confessions, of child molesting, murder and rape. Many
borderline cases will likely be resolved through giving the
convicted persons a choice of jail time or a fine instead of
hudud punishments, or using the Shari'a "Ihizari" process of
allowing confession to a lesser crime with sentences of only
caning or flogging.
MEECE