Journal of Islamic Law Review, Vol. 7, No. 1, June 2011, pp. 125-155
THE APPLICATION OF AL-UQUBAT IN THE CONTEMPORARY
SOCIETY: A RE-EXAMINATION USING THE MAQASID
AL-SHARI‘AH BASED SCHEMES
K. K. Oloso and Ibrahim Olatunde Uthman
This paper focuses on the complexity of the implementation of the Islamic
criminal law with particular reference to the feminist view that the Islamic
law is “the cornerstone of the system of male privilege set up in Islam”
and that the preservation of this system of Islamic law in most Muslim
countries signals the existence of anti-human rights practices that uphold
not only oppression and domination of women but also of non-Muslims
and even ordinary Muslims. Nevertheless, there still appears to be a
serious misinterpretation of the Islamic penal code. This misinterpretation
is due to the failure of Muslim scholars over the years to question the
application of the Islamic penal law system in many Muslim countries,
including Nigeria in line with the maqasid al-shari‘ah (the ultimate
objectives of the Islamic law). This paper will ground itself upon maqasid
al-shari‘ah in order to differentiate between the authentic scope and
application of the Islamic criminal law and what is currently operational
in the Muslim world.
INTRODUCTION
The term Al-Uqubat which is the plural of al-Uqubah covers both
crimes and torts. It means punishments and penalties for crimes and
offences recognized by the Islamic law. In short, Al-Uqubat refers to
divine punishments prescribed by Allah (s.w.t.), the law-giver for
those offenses that are considered the violation of the divine rights
or haqq Allah. Hence these divine punishments are also known as
Hudud (fixed punishments prescribed in the Qur’an and Sunnah),
the plural of Hadd, though not all punishments in Islamic criminal
law fall under this designation.1 Thus, the punishments called Al-
Uqubat includes fixed and prescribed limits (the literary meaning of
Hudud) set by Allah (s.w.t.) which nobody can alter either by making
* Department of Arabic and Islamic Studies, University of Ibadan, Nigeria, E-mail:
ibrahimuthman@yahoo.com
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them lighter or heavier. Similarly, these punishments cannot be waived
or pardoned by anybody whether the head of state, governor or even
the victim(s) of the crime that carries the punishment once the case
is before the judge. The reason for this is the fact that all these
punishments that fall under the category of Hudud despite being
categorized as the rights of Allah are in reality for the benefit of the
people and in the interest of the public. The punishments are not
imposed because of the violation of religious duties such as neglect
of the five daily compulsory prayers and obligatory fasting in the
month of Ramadan.2
There are basically three classifications of Al-Uqubat. Firstly,
the above punishments called Hudud which are generally recognized
as six or more by most Muslim scholars. They include the
punishments for armed robbery, apostasy, unlawful sexual Intercourse,
false accusation, drinking and theft but which we will argue in this
paper are merely five. The second classification is Al-Qisas
(Retaliation) which is punishment for homicides and injuries. Lastly,
we have Al-Ta’zir (Judicial discretional punishment) which refers to
all discretional punishments that are determined by judges.3
We will now discuss each of this classification one by one in the
next section, starting from the Hudud and show that the punishments
that constitute Hudud are actually five in number. This will be
followed by an analytical comparison of these punishments with
modern penal codes that reflect the protection of fundamental human
rights contained in various global and regional declarations. Finally,
the paper will show how the failure of Muslim scholars over the years
to question the application of the application of Islamic penal law
system in many Muslim countries, including Nigeria is opposed to
some of the maqasid al-shari‘ah or the ultimate objectives and
purposes of the Islamic law and proffer a better application of Islamic
penal codes based on these objectives.
THE CLASICAL UNDERSTANDING OF AL-UQUBAT
The first of the Al-Uqubat crimes is Al-Hirabah which has been
defined by Kasani in ‘Uda al-Tashri’ al-Jinai al-Islami as “waiting
by the way (or highway) to steal travelers’ property by force and by
this means obstructing traveling on this road”.4 Al-Hirabah, therefore
implies an armed action that is taken by an individual or a group of
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bandits to attack and rob their victim (s), especially travelers on the
highway or outskirts of the town or city. It does not however mean if
someone robs with force, murders, or harms another person, or a
group of people in a place in the town, city or village, outside the
highway, it will not be Al-Hirabah. It only means that the acts of
depriving people of their property or wealth through the use of force,
whether accompanied by killing or injuring them in the process or
not, must have taken place in circumstances where it is difficult for
the victims to receive help and assistance. Al-Hirabah in short remains
the same whether it occurs in the dessert, city or in the wilderness
where people have no access to help or are prevented from getting or
crying for help. This is the view of majority of Muslim scholars and
the position of the Malikis, Shafi’is, Zahiris, Zaydis, Imamis and a
section of the Hanbalis. Only the Hanafis and a section of the
Hanbalis hold the view what is termed armed robbery according to
Islamic Law can only be committed on the highway.5
It is for the above reason, that other terms used for the crime of
armed robbery in Islamic Law are Al- Sariqah al-Kubrah (the Great
Theft) and Qat’ al-Tariq (Highway Robbery). Hence these two terms
are used interchangeably with Al-Hirabah by classical Muslim jurists.
The intention to commit robbery with force by lying in wait for
wayfarers on the highway, prowling houses in the night and harassing
passersby fully armed is sufficient for conviction of the crime even if
the culprit is not successful.6 Since the crime violates the ultimate
objectives of the divine law to protect both life and property, it has
been described in the Qur’an as both waging war against Allah (s.w.t.)
and His Prophet (s.a.w.) as well spreading mischief on
earth.7According to the passage, the punishments for Al-Hirabah are
four, namely killing, crucifixion, cutting off their hands and feet on
alternate sides (the right hand and the left foot or vice versa) and
banishment.
Most Muslim jurists hold that the first punishment, death penalty
is prescribed for the culprit who commits murder in the process of
armed robbery but is caught before carting away the stolen property.
The method of carrying out the death penalty according to these
scholars is the sword. Any other method is unaccepted because of
the existing consensus by these scholars. The second punishment is
crucifixion and this is prescribed for the culprit if both life and
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property have been taken. There are three differing views among the
jurists on the method of carrying out this punishment. The first is
that the criminal should first be crucified alive before being killed
with a javelin. The second view is that the criminal should first be
killed and his body should then be crucified and left for three days as
warning and deterrent to others. The last view is that crucifixion alone
is what has been prescribed and should not be combined with another
punishment whether before or after. Hence once the offender becomes
guilty of murder and robbery, he or she should be crucified alive and
left to die on the crucifix before being taken down and buried.8
The last punishment is banishment which shows that the gravity
of the crimes committed by an offender is taking into consideration
in prescribing punishment. According to majority of Muslim scholars,
the punishment of armed robbery that consists of mere hold-up
without aggravation like killing or actual theft is banishment of the
offender.9 There are however three juristic views on the punishment
of banishment. The Hanafi School interprets banishment to mean
imprisonment, the Maliki School holds that it also means
imprisonment but in another country while the Shafi’i and Hanbali
Schools opine that it implies pursuing of the criminal from country
to country if he escapes. They all however agree that the offender
remains banished until he or she gives evidence of improved conduct
and unlikelihood to engage in the criminal act again. This principle
is comparable to the modern day parole system.10 In this context, it is
therefore very clear that where armed robbers have not killed anybody,
there is no need imposing the death penalty, whether by execution or
crucifixion. There is also no need for amputation. This view is based
on the Qur’an chapter, 2 ayah 179 which shows vividly that the
harshness of the Islamic law on the punishment of the crime of armed
robbery is to protect both life and the human body by serving as
deterrent to anyone who also desires life or other parts of the body.
The second of the Al-Uqubat to be discussed is zina which implies
any unlawful sexual intercourse between two people. If someone has
sex outside marriage, whether he or she is married or not, it is called
zina in Islamic Law. zina therefore refers to both fornication and
adultery. The Hanafi School of Islamic defines zina as “Sexual
intercourse between a man and a woman without legal right or without
the semblance of legal right known as al-milk or shubhat al-milk.11
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This shows that the main element of zina is unlawful sexual
intercourse or sexual intercourse between a man and a woman that is
not legally married or has a contract that looks like a legal marriage.
Hence any sexual intercourse between people who are not married
whether the marriage is valid or not, is illegal. In addition, any
unlawful intercourse between a man and a woman which does not
include sexual intercourse is not considered zina as Islam has
prescribed.12 (Q17: 32). Other forms of unlawful intercourse do not
fall under crimes that attract fixed punishments. They are rather under
the category of crimes that attract discretionary punishments.
According to the verse above, the Islamic law in respect of zina
is guided by morality. zina is seriously condemned in Islam because
it is amoral transgression that opens the way to untold social problems,
vices and diseases. In fact, the prohibition of Al-Zina in Islam
represents a scale of moral evaluation to regulate all sexual acts and
relationship. Islam, while not frowning at the sexual instincts has
regulated sexual acts and relationship in order to protect personal
health, marital sanctity, public morality, societal peace and social
placement and legitimacy of children among others. The desire to
limit sexual transgression in the society is informed by the need to
safeguard both the individuals and the society from the evils of sexual
corruption and anarchy. This is why Islam not only prohibits adultery
as it is done in modern penal systems but also fornication and all that
leads to it. The emergence of such aliments and crises like AIDS,
killing of unwanted children, murdered of unfaithful sexual partners
and legal tussles over the fatherhood and legitimacy of children born
out of wedlock are some of the evils caused by the prevailing sexual
freedom that permits all forms of sexual relationships and orientations.
According to majority of Muslim scholars, the offence of zina
has been divided into two categories based on the marital status of
the offenders. This is because the existence or non existence of
marriage plays a very important role on a person’s ability to maintain
sexual control. The married person who possesses Ihsan (ability to
have sexual relationship with his or her spouse) when guilty of
unlawful sexual intercourse is regarded as a Muhsan (married)
offender and has committed adultery. The unmarried person who
engages in unlawful sexual intercourse is regarded as a ghair muhsan
(unmarried) offender and has committed fornication.13
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The importance in this categorization lies in the punishments for
zina in Islamic Law. The punishments for the crime of zina are
contained in two different passages of the Qur’an.14 The above first
two verses indicates that the punishments for an adulterous woman
and man were imprisonment in her family’s house until she died or
until such a time when another revelation would prescribe a new
punishment for these women and caning respectively. Then the last
verse was revealed and it prescribes a hundred lashes for both the
male and female culprits of zina. According to the views of most
Muslim scholars, the initial punishments contained in chapter 4 of
the Qur’an became abrogated following the revelation of verse two
in chapter 24. This view of the majority is supported by a tradition of
the Prophet (s.a.w.) where the Prophet on receiving the last revelation
declared as follows:
Take from me, accept from me. Undoubtedly, He has as now shown a
path for them (adulterers). For unmarried persons (guilty of fornication),
the punishment is one hundred lashes and an exile for one year. For
married adulterers, it is one hundred lashes and stoning to death.15
The above tradition is the clearest evidence that the punishments for
zina are contained in not only the Qur’an but also the Sunnah. Though
there are reports that the above mentioned stoning to death of an
adulterer and adulteress was also revealed in the Qur’an and according
to majority of Muslim scholars though the Qur’anic text was later
abrogated while its verdict remains applicable, the point as clarified
in the above tradition is that stoning to death as a punishment for an
adulterer and adulteress was never prescribed by the Qur’an at all. It
was actually not only prescribed by the Prophet (s.a.w.) in the Sunnah
while explaining the revelation of the verse of canning, it was also
implemented by him at least on four occasions. The Prophet (s.a.w.)
ordered the punishment to be carried in three different cases where
the culprits were Muslim men and women. Though it is true that on
only one occasion, the punishment was carried out on a male and
female member of the Jewish community, it is however not true that
the Prophet (s.a.w.) initially used the Jewish law because there was
not yet any revelation concerning the punishment for zina in Islamic
Law. The above tradition shows that the Prophet (s.a.w.) upheld
stoning to death even after the revelation of Qur’an chapter 24
ayah 2.16
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Based on the Qur’an and Sunnah, Muslim scholars agree that
the punishments for zina are two, namely canning for fornication
and stoning to death for adultery. However not all of them are in
agreement on the additional punishment of banishment for fornication
and caning for adultery. This agreement occurs because when the
Prophet (s.a.w.) ordered caning for fornication, he did not include
banishment except on one occasion due to public interest. Neither
did he include canning on all the occasions he ordered stoning to
death for adultery. The method of carrying out these punishments
according to these scholars is the use of the wildest possible publicity
to deter other potential offenders. The punishment of al-rajm or the
stoning to death penalty by stoning is a subject of controversy in
modern society, even among Muslim scholars. As stated above, many
Muslim scholars today deny that rajm is the punishment to be carried
out on a male and female offender of zina in Islamic Law because
there is no text in its support in the Qur’an and because of their above
opinion of most of them that the Prophet (s.a.w.) used al-rajm initially
when there was not yet any revelation concerning the punishment
for zina in Islamic Law. However their view is contradicted by the
fact that the Prophet (s.a.w.) upheld stoning to death even after the
revelation of the Qur’an. We are of the opinion that rather than
disowning al-rajm, what Muslim scholars can do in this respect is
damage control because while the Prophet (s.a.w.) upheld stoning to
death even after the revelation of Qur’an (Chapter 24, ayah 2), the
application was based on very stringent conditions which indicate
that the Law Giver is not merely interested in the imposition of all
punishments in the Islamic Criminal Law.
The stipulation of the evidence of four matured male witnesses
of high moral probity and good reputation before a person can be
convicted for the offenses of unlawful sexual relations makes it almost
impossible to punish any offender. Added to this is the requirement
that their evidence must prove that they are on the spot eyewitnesses
of the alleged crimes rather than relying on mere circumstantial
evidence. This explains the reason why witnesses have not been able
to prove the offenses of unlawful sexual relations beyond all
reasonable doubts throughout, perhaps, the entire history of Islam.
Apart from the cases of confession, on the basis of which the Prophet
(s.a.w.) upheld the above fixed punishments, almost all other cases
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in Islamic history were all based on circumstantial evidence.
Unfortunately, the accused are usually not allowed to have access to
adequate opportunities to defend themselves. For instance, a woman
accused of adultery or fornication on the basis of pregnancy outside
marriage, who claim that the child is either the result of sexual
intercourse that took place during her sleep and without her
knowledge, the consequence of sperm that accidentally enters her
vagina without penetration or fathered by a former husband for as
long as seven years after the end of the marriage, according to the
Maliki school should be set free.17
Similarly, women should not be convicted for adultery because
they have once contracted a valid marriage but which has ended. The
once married person in reality no longer possess Ihsan (ability to
have sexual relationship with his or her spouse) since the marriage
has ended either as a result of divorce or death of her spouse. So if
and when a previously married woman is found guilty of unlawful
sexual intercourse, it is injustice to still regard her as a Muhsanah
(married woman who has the ability to have sexual relationship with
her spouse) as it is done presently in all the Schools of Islamic Law.
Since she has reverted back to the status of unmarried person who
engages in unlawful sexual intercourse, she should therefore be
regarded as a ghair muhsanah (unmarried) offender who has
committed fornication if and when she is guilty of unlawful sexual
intercourse. This leniency in the application of the above punishments
is in line with Prophetic specific commandment that the divinely fixed
punishments must be waived whenever there is any element of doubt.18
The Punishment of Al-Sariqah is another Al-Uqubat. Al-Sariqah,
implies an illegal means of acquiring property or wealth. It violates
the limits set by Allah (s.w.t.) on the acquisition of property. For
instance Allah says “Do not devour the property and wealth of one
another through false and illegal means (4:29). It also means stealing
with criminal intention and an act of theft which occurs when property
owned by another person is taken away secretly and with criminal
intentions. In short, Al-Sariqah refers to the act of taking someone
else’s property by theft or stealth. The divine law on Al-Sariqah was
revealed by Allah (s.w.t.), the law-giver and it became one of those
offenses that are considered the violation of the divine rights or haqq
Allah.19
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In addition, there are many traditions in the Sunnah that dwell
on the gravity of Al-Sariqah by equating it to the crime of zina. This
shows while Al-Sariqah is a theft of property, zina is a theft of dignity
and the two form parts of the five essential items protected by the
Islamic Law.
Thus, the crime of Al-Sariqah is so called and is included among
the crimes that carry fixed and prescribed punishment in Islam
because Islam guarantees individual ownership of property. It teaches
that individuals are encouraged to work and own wealth. The Islamic
law on Al-Sariqah is therefore a means of protecting this right of the
general members of the society. Hence the offence of Al-Sariqah has
been committed only when the property stolen is taken out of the
possession of its real owners, illegally and secretly and with criminal
intentions. This is why Al-Sariqah is governed by the following
conditions in Islamic law, before a person can be guilty of the crime
of Al-Sariqah. Firstly, as stated above, the property stolen must have
been taken out of the possession of its real owner, illegally and secretly
and with criminal intentions. Secondly, the property must be movable,
valuable and must have been kept in its usual. Thirdly, the property
must have reached a minimum amount of monetary worth known as
Al-nisab in Islamic Law. The Al-nisab is generally regarded as three
dirhams or a quatre of a dinar. Fourthly, the person who has committed
Al-Sariqah must be sane and matured. Lastly, the person must not be
hungry or under any compulsion when committing the crime.20
The nature of Al-Sariqah in Islamic criminal law and the
conditions governing the declaration of an accused person as guilty
of the offence indicate that the conviction of someone for the offence
of Al-Sariqah like other offences in the Islamic penal code is very
difficult if the application of Islamic law in contemporary society
strictly abides by these conditions. The Islamic punishment for Al-
Sariqah as prescribed in the Qur’an is amputation or cutting off the
hands of a convicted thief. As reported in the Sunnah, the Prophet
(s.a.w.) ordered the amputation of a female thief’s hand in line with
the divine instruction. He also prohibited any mediation in the
execution of the punishment, confirming the fixed nature of the
punishment and its categorization as one of the Hudud. However since
this punishment cannot be carried out unless the above conditions
are fulfilled, then it is almost impossible to implement. According to
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majority of Muslim scholars, the punishment of amputation, in the
case of a thief cannot be imposed unless the property is worth the
minimum value of one quatre of gold or 3 pieces of silver. It is only
the Hanafi and Zaydi Schools that raise the value to ten pieces of
silver. The Zahiri School represented by Ibn Hazm in his book, al-
Muhalla however is of the view that there is no fixed Al-nisab in
Islamic Law based on the Sunnah (El Awa, 1985: 4).21 The
interpretation of the value of Al-nisab according to the School that is
the Zahiri School expounded by Ibn Hazm appears closest to of the
Qur’an and the Sunnah because of the fluctuations in the prices of
commodities. Thus, the value of the prices commodities and the
minimum Al-nisab for the infliction of the punishment of amputation
may vary from one society to another. This is because all punishments
prescribed by Allah (s.w.t.) are mainly to protect the lives and rights
of the society. To achieve this therefore, the changing circumstances
in the society such as the value of money and the amount considered
negligible under these giving circumstances will enhance the
fulfillment of not only Al-nisab but also the condition that the thief
must not have stolen because of hunger.
In the same vein, according to most Muslim scholars, the right
hand of a first offender should be cut from the wrist. In this respect,
it is only the Maliki School that holds that the hand of an offender of
the crime of Al-Sariqah should be cut from the wrist elbow. However
as far as the place of cutting is concerned, the view of the majority of
Muslim scholars that the hand of the offender should be cut from the
wrist is supported by the practices of the Prophet (s.a.w.) and his
followers as well as the generally acceptable usage of the word hand
in Arabic. This is also the case with respect to the question on how
many times the hands of a thief should be cut, most Muslim scholars
opine that if there is a second offense of Al-Sariqah by an already
amputated thief, the thief’s left foot should be cut. If there is a third
theft, then the left hand of the serial offender should be cut while the
right foot would be cut for the fourth theft. This is the view of the
Maliki, Shafi’i and Hanbali Schools. Only the Hanafi School differs
by arguing that there is no cutting of any limb of a serial offender.
Rather the offender would be given discretionary punishments. The
above view of the Hanafi School appears to be the most correct
because it is nearest to the maqasid al-shari‘ah and spirit of Islamic
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law which as we have argued earlier is basically to reform criminals.
This is also supported by the practice of Ibn Abbas and ‘Ata’. ‘Ata’
insisted that there is no further amputation after the first one because
the silence of the Law Giver is because of His mercy and not because
of forgetfulness. If Allah had wanted anything else to be cut, he would
have mentioned it. Just as this interpretation is supported by a well-
known rule that “every crime for which there is no fixed punishment,
its perpetrator is liable to discretionary punishment”.22
The next punishment that we will discuss here is Al-Qadhf which
implies an action or expression that is made to allege a person of
committing the act of illegal sexual intercourse. Al-Qadhf has been
defined as an unproved allegation that an individual has committed
zina based on two verses of the Qur’an.23 According to the majority
of Muslim scholars, in order to consider such allegation as Al-Qadhf
and therefore punishable, the offender must be a sane adult Muslim
and must have made the allegation very clearly. The expression used
in making the allegation of Al-Qadhf must clearly mention that the
person so-accused has committed zina. Except for the Maliki School,
all others scholars hold that there can be no fixed punishment for the
culprit of Al-Qadhf unless the expression that is used is unambiguous.
While the Maliki School opines that an insinuated accusation, where
the accuser uses a word which means among other things, illegal
sexual intercourse is an offence if the accused understands it to
imply that he or she is accused of zina, it is clear this is not correct.
Since the Islamic Law always insists on clarity in all matters,
especially, on the question of crimes and their punishment, it is
preferable to insist on clarity of the allegation. Accordingly, the
view of the majority of Muslim scholars is preferable here. The
punishment for Al-Qadhf is accordance to Qur’an chapter 24 was
executed by the Prophet (s.a.w.) on some companions who were
used by the hypocrites in spreading slander against Aisha. They
were Hassan ibn Thabit, Mistah ibn Athatha and Himna ibn Jahsh.
It is for the above reason, that the punishment of Al-Qadhf is eighty
lashes as well as rejection of the future testimony of the accuser
according to the view of the majority where there is no ambiguity
in the expression of the accuser. Even if it is an indirect clear
accusation, the punishment will be implemented. For instance, a
person denying the paternity of another person is considered to have
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made a clear accusation of zina against either or both of the parents
whose child paternity has been denied.24
In addition, the Muslim jurists differ on the meaning of the last
part of the second verse in the above chapter relating to those who
repent from their crime of Al-Qadhf. All the Muslim scholars are
unanimous that the repentance of an offender does not affect the
execution of the punishment of canning. Again, they all agree that
the repentance does affect the verdict that the offender is an evil doer.
According to majority of the scholars, the verse also means that the
future testimony of the repentant offender can be accepted after the
repentance. However, the Hanafi School disagrees and opines that
repentance does not affect the fact that the future testimony of the
offender is to be rejected. The above verses are followed by two other
verses that prescribe the punishment for the crime of Al-Qadhf
committed by a person against his or her spouse. According to chapter
24, ayah 6-7 of the Qur’an, if either spouse accuses each other of
committing the crime of zina, then the accuser must corroborate the
accusation by swearing four times to the veracity of the accusation.
This is followed by a fifth oath of invoking the curse of Allah (s.w.t.)
on himself or herself for telling a lie. The accused spouse can however
avert the punishment of Al-Qadhf himself or herself by also swearing
four times on the perfidy of the spouse. This is also followed by a
fifth oath of invoking the curse of Allah (s.w.t.) on himself or herself
if the accuser is telling the truth. The Islamic law has chosen this
approach in the case of a husband and wife to pave the way to a
divorce where either party is convinced on the unfaithfulness of his
or her spouse. This is because of the strict condition of producing
four witnesses to support the allegation of zina. Since as stated before
in our discussion on zina, in most cases it will be difficult or
impossible to get four on the spot witnesses to the crime of zina,
Islam relaxes the rule for a married couple so as not to condemn
them to a life of misery with an unfaithful partner. So once the couple
takes the oath, their marriage stands automatically divorced. 25
The last of the fixed punishments in the opinions of these authors
is Shurb al-Khamr which refers to any juice or drug that intoxicates
or destroys the intellect. It therefore includes the drinking of
intoxicants or the taking of any intoxicating drug or alcohol. It
embraces the drinking of any fermented juice, grape, barley, dates,
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honey or taking of hashish, opium, marijuana, cocaine etc. Drinking
any intoxicating wine or liquor is a punishable crime in Islam because
of the attendant harms and vices that it leads to. For instance someone
who is not bold enough to commit rape will be able to execute the
act under the influence of alcohol. This is why Islam has prohibited
Shurb al-Khamr despite some of its benefits and usefulness as
contained in the Qur’an.26 Though it both benefits and harms human
beings but because its harm far outweighs its benefits, it is forbidden
in Islam. However, the Islamic law in respect of Shurb al-Khamr is
guided by the principle of gradualism. After accepting Islam, the
Arabs sought to know the Islamic Law in respect of Shurb al-Khamr
and the first quoted verse was revealed. In fact, the verse teaches a
very important philosophy in the psychology of reformation. Rather
than the prohibition of Shurb al-Khamr out rightly in Islam, the divine
wisdom merely points the attention of the Arabs to the nature of Shurb
al-Khamr. The verse teaches that Shurb al-Khamr represents
bittersweets. It contains both benefits and vices to human beings and
the society, the verse informs and while not prohibiting Shurb al-
Khamr the verse points to the wisdom of shunning it in order to protect
personal health, intellectual sagacity, public orderliness, societal peace
and social unity among others by asserting that its evils outweigh its
benefits. Later the divine revelation prohibited Shurb al-Khamr
partially by conditioning it to retention of senses in
prayers.27Accordingly, by the time the final prohibition was revealed
in the fourth or fifth year of Hijrah, virtually everybody had been
gradually weaned away from Shurb al-Khamr hence, on the occasion
of the last revelation on Shurb al-Khamr, people went to their houses
and started pouring away their barrels of liquor. The fixed punishment
for the crime of Shurb al-Khamr is neither contained directly in the
passages of the Qur’an or in Sunnah but is rather based on analogy
drawn from the above preceding punishment of al-Qadhf by the
companions of the Prophet (s.a.w.) because whosoever drinks is most
liable to slander and defame people’s character hence the punishment
for al-Qadhf as mentioned in the Qur’an was fixed for Shurb al-
Khamr and on this basis, the Maliki, the Hanafi and the Hanbali
Schools agree that the fixed punishment for drinking of intoxicants
is eighty lashes. However the Shafi’i disagrees, saying that the fixed
punishment is forty lashes only. The Muslim scholars also differ on
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using circumstantial evidence to convict a person for the crime of
Shurb al-Khamr. According to majority of the scholars, the
punishment will not be given based on the smelling of the mouth of
the accused even if it is reeking with alcohol. Imam Malik however
disagrees, maintaining that if the mouth of the accused smells of
alcohol, then it is evidence that the accused has drunk it and should
be punished accordingly. 28
The last fixed punishment according to most classical scholars
is Al-Riddah which means apostasy or the rejection of the religion of
Islam in favour of any other religion or rejection of any divine
fundamental principle of the religion prescribed by Allah (s.w.t.),
the law-giver and His Prophet either through an action or by way of
mouth. Hence the rejection of the belief in any article of faith, the
obligatory ritual practices or imitating non-Muslims in their religious
practices amount to apostasy in Islam. Similarly, the act of running
away from the battle field in defence of Islam is regarded as apostasy.
According to all classical Muslim scholars, the punishment for Al-
Riddah is prescribed by the Prophet (s.a.w.) when he said “whosoever
changes his religion (from Islam to anything else), bring an end to
his life.” In doing so, the Muslim scholars explain that the apostate
will be given time to reconsider his apostasy but if he or she is
adamant, then the punishment is death. While they differ on the length
of time to be given the apostate to reconsider, they are unanimous on
killing the person if he fails to revert back to Islam. In cases where a
person apostatize under duress, while his heart remains imbued with
the Islamic belief, the scholars argue that the person will not be
charged with apostasy based on the case of ‘Ammar ibn Yasir for
which a passage of the Qur’an was revealed.29
We however argue here that the Islamic ruling on apostasy by
classical Muslim scholars grossly violates a very important teaching
of Islam in the Qur’an and Sunnah. This is the doctrine of freedom
of worship which has been declared a fundamental objective of the
Islamic Law by many Muslim scholars. In fact, Islam commands
Muslims to establish an Islamic society that transcends the politics
of multicultural and religious consociation and tolerance because of
this principle. By so doing, Islam upholds a society built on justice,
unity and accommodation that are in consonance with the Islamic
declaration of one God and one human race and destiny irrespective
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of differences in religious and cultural ideologies and belief.30 In such
a society, benevolence and reward are measured by performance and
not the mundane stratifications of colour, race, religion and lineage.
A careful reading of Islamic teachings will therefore show that this
classical interpretation of apostasy that denials the doctrine of freedom
of worship is not supported by the abundance of classical texts in
Islam.31 These texts are predicated on many commandments as stated
in various Qur’anic passages.32 It is highly significant that in the all
the last passage above, there are categorical statements on the freedom
of worship and in fact monasteries, churches and synagogues just
like mosques are all regarded as sacred places for which Allah (s.w.t.)
has appointed some people to prevent their destruction and
desecration.33 The last passage also indicates that in cases of apostasy,
the punishment does not reside in the Prophet but Allah (s.w.t.). This
perhaps informed Ezzati in his conclusion that Jihâd in Islam is a
measure that guarantees room for more than one religion to exist
(Ezzati, 1979: 6 and 28).34
This Accommodation of other religions in Islam was amply
demonstrated by the Prophet Muhammad (s.a.w.) on many occasions.
This prophetic accommodation of non-Muslims, especially Christians
could be seen in his support for the Roman Christians in their conflict
with Persia in the early days of Islam in Arabia. This was followed
by the Prophet’s reception and hospitality to the Christian delegation
from Najran whom he received in his mosque.35 The Prophet (s.a.w.)
demonstrated similar respect and accommodation for the Jews. For
instance, when the Jews of Khaybar murdered a Muslim but the
murderer could not be identified, the Prophet (s.a.w.) personally paid
out a hundred camels to the family of the deceased as compensation.
No wonder D.D. Macdonald in the Encyclopedia of Islam despite
his support of the age-long thesis of the sword regarding the spread
of Islam, agrees that the “idea of spreading Islam by force was not
present in the mind of the Prophet”.36 In addition, the above military
Jihâd in Islam, implied by D.D. Macdonald above and which is war
and other violent resistance to oppression, persecution and social
injustice which has made many people to conclude that Jihâd
essentially means ‘holy war’ is guided by many principles to ensure
that it does not become a means of spreading Islam by force. One of
such guiding principles is the commandment to “wage war against
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those who fight you”37 Furthermore, non-combatants, women,
children, the old and monks are not to be attacked as commanded by
the Prophet (s.a.w.). Just as pastures, trees, crops, wells and fruits
are not to be destroyed nor prisoners of war and animals to be
slaughtered or tortured.38
We will therefore show shortly in the final section of this paper
where the correct interpretation of what is perceived as the punishment
of apostasy can be located in Islamic Criminal Law. But before that,
we will discuss the remaining two classifications of Al-Uqubat.
The second classification of Al-Uqubat is of Al-Qisas which
implies an action that is taken by a victim or his heirs, agnates or
relatives to avenge a crime done to the victim. If someone murders,
hurts or harms another person, he or she must pay equitably for the
killing or injury. Al-Qisas therefore refers to the divine law of equality
or equitable retaliation of the horrible act of homicide, manslaughter
or torts prescribed by Allah (s.w.t.), the law-giver in favour of the
victim or his agnatic relatives. The Islamic law of retaliation was
revealed by Allah (s.w.t.) to militate the horrors of vengeance practiced
for many centuries in most cultures including that of the Arabs. Among
the Arabs, when a person was killed, members of his tribe would in
turn avenge the murder by killing any innocent person belonging to
the clan or tribe of the murderer. At times, the ensuing blood feuds
used to claim the lives of hundreds of innocent people for the life of
one person. To put a stop to this mayhem, Islam prescribes a strict
equitable retaliation and while doing so, makes a clear provision for
mercy and forgiveness.39
According to the second verse above, the law of retaliation in
cases of murder has been prescribed to ensure the protection of the
sacredness of human life. Human life is so sacred in Islam that Qatl
(killing) one life is equal to killing the whole of humanity.40In fact,
the taking of life in general without a just cause or in pursuit of justice
is a heinous offence. It is forbidden even to kill animals for fun or
sports. In addition, even killing the life of a child or mere embryo
through abortion or the use of other contraceptive methods is
prohibited except where the life of either the mother or the child
itself is in danger. So also, a person has no right to kill himself or
herself in Islam (Q81: 8-9, 6: 140, 6: 15 and 4: 29). According to
majority of Muslim scholars, the punishment of intentional killing
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or injury is Al-Qisas, retaliation by death in the case of homicide or
inflicting the same injury in the case of injury, hurt or torts. This
view is based on the Qur’an chapter (2: 178-179) above. The Maliki
School however holds that only the adult, male, agnatic relatives of a
deceased can avenge the crime of murder. It is only in the absence of
male agnates, that a daughter or sister of the victim can be the
avengers.41
The above view of Muslim scholars shows that a murderer or
injurer can only be prosecuted, sentenced and punished if the victim
or his or her avengers demand retaliation. Thus, the concept of Al-
Qisas in Islam allows the victims or the avengers of the crime of
murder or torts to forgive the offenders and in that case, demand
compensation or the payment of diyah (blood money or price). In
addition, the pardoned offenders are to be given a hundred strokes of
the cane and imprisonment for a year. Manslaughter or unintentional
injury also requires the payment of full or complete diyah. Killing or
injury caused by a mad person also requires the payment of diyah.
Similarly, the rule applies to the loss of hearing, loss of mental
balance, breaking of backbone, impairing of testicles and damage of
the penis glands. The same applies to an offender who is a minor.
However the payment of diyah will only comes from the minor’s
property if it does not exceed one third. The loss of bosoms of a
woman, eyes, hands, legs or nostrils requires the payment of a full
diyah. The loss of only one of any of these requires the payment of
half of diyah. The loss of the one eye of a one eyed person requires
the payment of a full diyah. In all cases of Al-Qisas in Islamic law,
the death penalty cannot be imposed on an innocent person regardless
of relationship with the offender. A woman shall be killed for killing
a man just as a man shall be killed for killing a woman. In the same
vein, the diyah is a fixed amount and is not a function of people’s
status or rank. It must not exceed that of the victim because of
extraneous considerations of social status, gender, religion and wealth
of the offender. The full diyah for the killing of a free Muslim man is
one hundred camels for people who have camels, one thousand dinars
in gold for people who possess gold or twelve thousand pieces of
dirham for people with silver.42
The last classification of the Al-Uqubat is Al-Ta’zir which implies
the use of judicial discretion by a judge in awarding punishments on
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crimes outside the limits set by Allah (s.w.t.). In short, Al-Ta’zir refers
to the divine allowance given to the judge to use his discretion to
award the measures and forms of punishments on crimes where no
punishments have been prescribed by Allah (s.w.t.), the law-giver
for those offenses against public peace and tranquility. Thus, the
punishments called Al-Ta’zir has been defined as “a disciplinary
punishment for a crime for which no specific fixed punishment is
prescribed nor any form of expiation by Allah which nobody can
alter either by making them lighter or heavier.” In Islamic law, there
are basically ten classifications of Al-Ta’zir punishments and penalties
for different crimes. Firstly, there is admonition or al-wa’z which is
generally prescribed for first offenders in mild cases. Apart from this
classification, there is also al-Tawbikh (Reprimand) which is
punishment for repeated offenders in mild cases. Thirdly, there is
threat or al-Tahdid. This is followed by boycott or al-Hajr. Fifthly,
there is public disgrace and disclosure or al-Tashhir. This is followed
by fines and seizure of property (al-Gharamah wal Musadarah).
There is also imprisonment (al-Habs). This is followed by flogging
or al-Jald. Nintly, there is exile or al-Nafl. Lastly, we have Al-Ta’zir
as an additional punishment to fixed punishments. Though instead
of al-Nafl, El-Awa at pp. 96-109, mentions death penalty but that is
in fact a major Al-Uqubat punishment as already discussed.43
The only thing that must still be noted before ending this section
is that the general structure of the Islamic Criminal Law in most
Muslim countries are today based on Al-Ta’zir as many Muslim
countries are coming to terms with the need to re-interpret classical
interpretations of the Islamic Criminal codes with the exception of a
few countries including Nigeria. Hence punishment usually takes the
form of imprisonment, fines and light canning in most penal codes
of contemporary Muslim countries. For instance, while Malaysia
today follows the classical interpretation of listing apostasy as a
punishable offence, it does not uphold the classical punishment of
death penalty but punishes apostasy by denial of certain constitutional
rights, like change of name and inheritance.
Not surprisingly in Malaysia today, it is interesting that the
advocacy for the freedom of religion of non Muslims appears to be
“the most thrilling issue of constitutional law which hovers around
Malaysia being an “Islamic State”.44 According to the Malaysian
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Consultative Council of Buddhism, Christianity, Hinduism and
Sikhism (MCCBCHS) which was established for the purpose of
promoting religious and social understanding and harmony, there is
prevalence of violation of personal liberties of Malaysian non
Muslims. The MCCBCHS has particularly referred to statutory
provisions that criminalize apostasy from Islam and deny non
Muslims the liberty to apostate from Islam. The MCCBCHS has
equally voiced out concern on the disturbing cases of husbands “said
to ‘pretend’ to be Muslims in order to get out of a marriage and thereby
leaving their spouses in the lurch” and the courts’ granting the
children’s custody to the ‘pretending’ Muslim converts. These and
other perceived violations of non Muslim personal liberties such as
their rights to non Muslim rites of a deceased after they have
apostatized from Islam are believed to be unconstitutional by the
MCCBCHS according to Jen-T’ Chiang above.45 It is for these reasons
that we now end this paper with an analysis of some salient human
rights issues involved in the application of Al-Uqubat based on the
ultimate objectives schemes of the Islamic Law.
HUMAN RIGHTS OBLIGATION AND APPLICATION OF AL-UQUBAT
Today, virtually all countries of the world, including Muslim countries
have committed themselves to one form of human rights declaration
or another. Thus, they are expected to guarantee basic human rights
in various international contexts. These declarations include the
standard for human rights contained in the Universal Declaration of
Human rights in 1948, which has given birth to the International
Covenant on Civil and Political Rights in 1966, the Convention for
the Elimination of all Forms of Discrimination against Women in
1979, the Convention against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment in 1984, the Convention on the
Rights of the Child in 1989, all within the global context set by the
United Nations and the African Charter of Human and Peoples’ Rights
(ACHPR) of the African Union and of the Commonwealth. All these
conventions are relevant to the implementation of the Al-Uqubat today.
Many of the punishments and penalties for all crimes known as and
called Hudud are regarded as torturing or cruel, degrading and
inhuman and outlawed by virtually all the above conventions which
lay down that nobody shall be subjected to torture or any inhuman or
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degrading punishments and direct all countries to ensure that such
acts are not enforced as punishments. Therefore aside from the issue
of apostasy already discussed above, the implementation of capital
punishment in itself is another example that is used by human rights’
activists to gauge Islamic Law compliance with human rights’
declarations. For instance, Malaysia which assigns the death penalty
to such offences as deliberate homicide, kidnapping, trafficking in
dangerous drugs and possession of firearms is regarded as violating
the fundamental human rights of its citizens by abolitionists. The
abolitionists who call for abolishing the implementation of capital
punishment in Malaysia argue for the abolition of the death penalty
because of the freedom to life as enshrined in the Malaysian federal
constitution, the 2005 resolution 59 of the UN Commission on Human
Rights, Article 1 of the Second Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR) and findings of the
Amnesty International reports that show that long-time imprisonment
is a more effective deterrent of crimes than the death penalty. However,
Malaysian Muslims, like many other Muslims all over the world,
have generally opposed the abolition of death penalty because of al-
Qisâs or the Law of retaliation in the second classification of Islamic
Criminal Law punishments discussed before. This position is in line
with the views of Muslim scholars who uphold the classical
interpretation and opine that the Islamic Law of al-Qisâs is still
relevant as it is to punish deliberate homicide with what is equal to
the life that a culprit has taken whether directly or indirectly like the
case of drug trafficking.46
To address these conflicting standpoints, we will attempt to x-
ray the maqasid (ultimate objectives) approach in the Islamic Laws
to show how these ultimate objectives can be used to reform the
application of Islamic Criminal Law today. The Islamic Law according
to many Muslim scholars revolves round a scheme of benefits and
harms (masalihah and mafasid). These scholars postulate that the
Islamic Law is aimed at protecting five ultimate objectives. These
objectives are religion, life, intellect, offspring and property. In short,
the maqasid is designed so that worldly and religious, physical and
spiritual and mundane and celestial enjoyments are acquired by
humanity. What accrues in terms of benefits or ward off in terms of
harms (for example, supplying food among the needy to benefit the
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hungry and healing the sick to ward off diseases) is however
predicated on both real and potential benefits and harms and not
merely on material gains and profits. This scheme is therefore guided
by the underlying rationale, goal and intention as well the subsequent
effects and impacts on humans, non humans, the environment and
the global community.
There are many Islamic maxims that guide the maqasid scheme
in Islam but we will just examine three in this paper. The first is the
maxim: al-asl fi al-ashya al-Ibahah ma lam yarid dalil al-tahrim or
al-asl fi al-ashya al-Ibahah hatta yadulla al-dalil ala al-tahrim which
means that the original rulings on things is their permissibility as
long as there is no evidence that proves their prohibition. This entails
the permissibility of accruing all benefits and warding off all harms
unless there is evidence in the two absolute frame works of Islam
(The Qur’an and Sunnah) that prohibits accruing such benefits and
warding off such harms. Another two related legal maxims are: al-
darar yuzal which means that harm should be alleviated and dar’ al-
mafasid awla min jalbi al- masalih which means warding off harm
has precedence over accruing benefits. On the basis of these two
legal maxims, Muslim scholars like al-Suyuti emphasize that if the
intended benefits and harms are contending, then warding off the
intended harms is of higher priority as the Lawgiver is more
preoccupied with what He has forbidden than with He has
commanded. 47
Furthermore, in the maqasid scheme, the intended benefits and
harms are those established by the Islamic law in accordance with
the above listed five ultimate objectives. Hence al-Ghazali, the great
Shafi’i scholar argues that the considered juristic benefits or harms
as the case maybe must be those intended by the Lawgiver and not
those designed by human beings. He therefore differentiated between
the ultimate objectives and purposes set by Allah (s.w.t.), the Lawgiver
and not those decided on the basis of human whims and caprices.
Any imaginary benefit which is prohibited by the Islamic Law for
example is mulghat or null and void and must be discarded. So also
is the case of any benefit that does not originate from the maqasid
scheme either in its restricted or unrestricted form (maslaha al-
mursalah), such benefit according to al-Ghazali would be unaccepted
because it does not qualify as a darurah or necessity that meets any
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of the above five ultimate objectives on the essential level. It is also
not a definitive benefit whose realization is certain and its benefit is
not universal or meets the needs of a community. This is also the
views of scholars like Imam al-Shatibi who pioneered the field of
maqasid scheme as an independent field of Islamic Law. As matter
of fact, the maqasid scheme requires that the ultimate fundamental
objectives, values and ethical considerations of the Islamic Law must
never be neglected in human actions especially those directed at
development and progress. However, Muslim scholars like al-Shatibi
disagree on which of these five necessary and essential values (al-
darurah al-Khamsah) or five ultimate fundamental objectives have
the highest priority or precedence. Is it religion and in this case Islam
that has priority over life or is it life that has priority over religion?
Nonetheless, Islamic scholars are unanimous that all the above
ultimate fundamental objectives originate from the Islamic absolute
reference frameworks, and therefore qualify as darurat or necessities
on the essential level and are all definitive benefits whose realization
are certain and whose benefits are universal or meet the needs of the
entire global community. 48
Based on this unanimity of Islamic scholars, it is correct to argue
that the application of Islamic Criminal Law should be based on the
above five essential and fundamental objective like the preservation
of life, religion and human dignity. Furthermore, if these maqasid
are appropriated together with the three legal maxims mentioned
above, that revolve round the permissibility of accruing all benefits
and warding off all harms unless there is evidence in the two absolute
frame works of Islam that prohibits accruing such benefits and
warding off such harms, alleviating harms and assigning the warding
off of harm, precedence over accruing benefits, then this “overdose
of misconceptions about Islam” hovering around the human rights
issues discussed in this paper such as apostasy from Islam being
deemed as not only a sinful act by a Muslim but also punishable with
death or any other denial of the constitutional rights of a person will
be removed. For instance the Malay general opposition to a Muslim
Malay converting to other religions as upheld by the classical view
that freedom of worship or religion does not entail the freedom of a
Muslim to convert to other religions will no longer subsist as a western
notion that flows from the secular perception of religion as a private
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or personal affair while advocating the absolute freedom of human
beings.49 To Muslims who hold this view, they believe that while Islam
grants a person the freedom of religion, such a freedom to them is
not extended to granting those people who are born Muslims or have
accepted Islam as a religion, the right to leave and abandon Islam.
They support this oxymoronic view with the fact that in Islam no
human has absolute freedom which belongs to Allah (s.w.t.) alone. It
is this perception that informed the Allied coordinating Committee
of Islamic NGOS (ACCIN) the initial massive objections to the
initiative of the MCCBCHS toward the formation of the interfaith
Committee of Malaysia (IFC) and its agenda for not taking “into
consideration the sensitivities of the Muslims especially in the light
of the fact there are few reported cases of ‘apostasy’ among the
Malays”. 50
The above perception of apostasy as a hadd punishment or fixed
punishable crime by the death penalty in Islamic Law is a total
violation of the Islamic concept of faith. Faith in Islam though innate
to a person, as a person is born a Muslim according to Islamic
teachings, is not the birth right of any person. Hence a person even
though born a Muslim may at any time cease to profess Islam and
being a Muslim just as non Muslims who have ‘reverted’(Since
according to Islamic teachings, they were originally born Muslims)
to Islam, can at any time return to their former religions. Islam teaches
that a true Muslim believes in and loves Allah so much that all his
actions and activities are carried out for the sole aim of pleasing Allah
alone hence Jihâd in Islam (Qutb, 1978: 93).51 By implication, a
person remains a Muslim in the truest sense of the word as long as
all his actions and activities are done to win the pleasure of Allah
(s.w.t.). When a person’s actions and activities cease to be done for
the sole aim of pleasing Allah (s.w.t.), the person in reality ceases to
be a Muslim. It is in this context that Islam teaches that there is no
compulsion in faith.
It is very clear that in the second and last passages above, the
punishment for apostasy resides in Allah (s.w.t.) who has chosen to
punish people who apostatize after they die on the Day of Judgment.
Allah (s.w.t.) also specifically warns the Prophet (s.a.w.) from
enforcing Islam on people or punishing the apostates since their
punishment is with Allah (s.w.t.). This perhaps informed Prophet’s
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attitudes to apostates. Contrary to the popular tradition that says
“whosoever changes his religion, kill him” and what the tradition in
Sahih al-Bukhâri purports, the Prophet (s.a.w.) did not kill any single
apostate. He only sanctioned the killing of only those apostates who
commit felony and sedition in the Muslim community and this is the
correct meaning of the above reported tradition in Sahih al-Bukhâri
which also contains other traditions that explain the meaning of the
popular tradition. One of such traditions is in fact reported by virtually
all the six authentic collectors of traditions but the narration in Sahih
al-Bukhâri is cited and translated by me as follows:
The blood of a Muslim who believes that there is no God except Allah
and that I am His apostle cannot be shed except in three cases: a life
for a life (retaliation for murder), a married person who commits illegal
sexual intercourse (adultery) and the one who forsakes his religion and
foments dissension among the Muslim community.52
Muslim scholars however object to the qualification of the Hudud as
torturing or cruel, degrading and inhuman. While acknowledging the
harshness of the Hudud, they argue that the Islamic Law has put in
place some measures and restrictions that serve as “damage control”
against the abuse of such punishments. There is no doubt, as we have
already explained while discussing the various punishments in Islam
that strict adherence to these measures will make the application of
the Hudud extremely difficult if not totally impossible. What remains
to be seen which many Muslim scholars have failed to address or
address in its totality is the seriousness and rampancy of judicial
misdemeanor, irregularity, anomaly, discrepancy and violation of
Islamic norms and values in applying the capital punishment in
Muslim societies (Kamali, 1998: 203-234).53 We have many instances
of these judicial violations of Islamic norms and values which
occurred in Nigeria. Bariya Magazu was sentenced to flogging for
having sexual relations outside marriage, and that sentence was carried
out though she claimed that she had been raped. She was originally
sentenced to 180 lashes as punishment for fornication and calumny
against her alleged rapist but after much plea and according to the
presiding Judge, he reduced the amount of her flogging on
humanitarian grounds. In fact, she was so lucky to have gotten ‘a
mere sentence of flogging. Another woman, Safiya Husseini, 35, who
got the sentence of death by stoning, was not so lucky. But for the
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objections of human rightists around the country which must have
assisted the sharî‘ah court of appeal’s Judge in Sokoto City who
acquitted her because the alleged offense occurred before the
implementation of the criminal aspects of the Shar‘ah. The third
woman, Amina Lawal Kurami, was also convicted for adultery and
sentenced to death though she was divorced. A Shari‘ah court in
Katsina state ruled on March 22 2002 that she could breastfeed her
baby for eight months before she would be executed. Her sentence
was also later overturned on appeal. On September 15 2004, another
woman, 26-year-old Daso Adamu, was handed the death sentence
by a Shari‘ah court in Ningi area of Bauchi state. Though Adamu
admitted to having sex with a 35-year-old man 12 times, the man
was acquitted for want of evidence. Hajara Ibrahim, a 29-year-old
woman, was also sentenced on October 5 2004 by a shari‘ah court
in the Tafawa Balewa area of Bauchi state, after having confessed to
having sex with 35-year-old Dauda Sani and becoming pregnant but
the court however set her alleged partner free and consequently
acquitted him due to lack of four witnesses.54
Following the above judicial ineptitude of some judicial officers,
even if capital punishment will not be abolished, we argue that there
is a need for a total re-orientation and training of judges and other
operators of our legal systems. While Islam allows judges to use their
discretion based on the evidence before them, a general principle in
Islamic law discussed in this paper is waiving mandatory sentences
in all cases when there is the slightest doubt and this principle must
have informed the lack of prosecution of people for sexual relations
outside marriage on the basis of mere circumstantial evidence, during
and for many centuries after the life time of the Prophet (s.a.w.). Not
even a single case was prosecuted by the Prophet (s.a.w.) based on
apprehension by four witnesses. Hence while death penalty may not
be abolished based on the objectives and benefits of the law of
retaliation in Islam, the conditions surrounding its imposition on
offenders as well as the training and education of law officers must
be reviewed as already being advocated.55
Again, according to the constitutions of virtually all countries of
the world today, all persons are equal before the law. This principle
has become prominent in all human rights discourses today. In this
respect, most human rights activists have described the Islamic Law
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as violating this principle both in respect of religion and gender. In
case of religion, the non application of Islamic penal codes to non-
Muslims is viewed by human rights activists as a violation of the
principle of equality before the law. The most prominent form of
religious discrimination which non-Muslims certainly protest is the
denial of Muslims the right to change their religion through the
stipulation of death penalty for apostasy and this has been discussed
above. What remains is the case of gender. Human rights advocates,
feminists and feminist jurists point to the acceptance of men
physically correcting their wives as evidence of this inequality in
Islamic Criminal law. On this note, a contemporary Muslim jurist
has argued, citing different evidence from the Qur’an and Sunnah
that what is allowed in the real sense in Islam is symbolic beating.
He therefore concludes that all kinds of cruelty and beatings apart
from the symbolic mentioned in the Qur’an is forbidden going by
the spirit of Islamic Law in averting harm.56 We, therefore, are of the
opinion that, as he suggested, there should be a criminal case against
such men who commit torts against their wives as done in Malaysia
today. The rejection of a man’s capability to rape his wife because of
the implied consent given at the time of marriage is also regarded as
a violation of the equality of husbands and wives under the Islamic
Law. As argued by Ansari (2010: 101),57 since one of the Islamic
legal maxims (discussed in this paper) does not allow taking benefits
at the cost of injury (in this case, the wife’s health), Islam does not
allow a man to forcefully have sex with his wife. We are therefore
arguing that this legal maxim allows the Islamic courts to punish
men for the offence of “rape” because such an act amounts to giving
precedence to benefits above preventing harm. As stated by Ansari
above, hurting women is categorically prohibited in Islam.58 The most
criticized example of gender inequality in the application of the
Islamic Criminal Law is the use of pregnancy as evidence of both
pre and extra marital sex where a woman is single or no longer married
and this has also been addressed and found contrary to the spirit of
the Islamic Criminal law in this paper.
CONCLUSION
To conclude this paper, it is necessary to mention that there is need
for a re-interpretation of Islamic Criminal Law to correct the current
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flaws in the application of the Islamic penal codes in many Muslim
countries today. Consequently the application of Islamic penal laws
today may subject people to being punished for offences that have
not been properly proven beyond reasonable doubts which are
contrary to the ultimate objectives of the penal codes. While Muslim
scholars have attempted to respond to these objections as being done
in Malaysia today, it is very clear that the provisions of protecting
the essential and fundamental objectives in many cases only exist in
name and are not enforced in practice. It is also clear that there is a
need for redrafting most of the Islamic legal codes in operation in
the Muslim world today.
Notes
1. El Awa, M. S. (1985), Punishment in Islamic Law: A Comparative Study
(US: American Trust Publications, pp. 1-3; and Peters, R. (2003), Islamic
Criminal Law in Nigeria (Ibadan: Spectrum Books Limited), p. 1.
2. Doi, A. R. I. (1984/1404), Shari’ah: the Islamic Law (London: Ta Ha
Publishers), p. 221; and El Awa, Punishment in Islamic Law, pp. 1-3.
3. El Awa, Punishment in Islamic Law, p. 1; and Peters, Islamic Criminal
Law, pp. 1-2.
4. Ibid, p. 8.
5. Doi, Shari’ah, p. 252 and El Awa, Punishment in Islamic Law, pp. 9-10.
6. El Awa, Punishment in Islamic Law, p. 7.
7. Qur’an, 5:33-34.
8. Doi, Shari’ah, p. 252 and El Awa, Punishment in Islamic Law, pp. 10-12.
9. Peters, Islamic Criminal Law, p. 1.
10. El Awa, Punishment in Islamic Law, pp. 10-13.
11. Doi, Shari’ah, p. 236 and El Awa, Punishment in Islamic Law, pp. 10-13.
12. Qur’an, 17:32.
13. El Awa, Punishment in Islamic Law, pp. 18-19.
14. Qur’an,4:15-16 and14: 2.
15. Doi, Shari’ah, p. 238 and El Awa, Punishment in Islamic Law,
pp. 15-17.
16. See El Awa, Punishment in Islamic Law, pp. 15-18.
17. Peters, Islamic Criminal Law, pp. 4-5.
18. Doi, Shari’ah, p. 224 and El Awa, Punishment in Islamic Law, pp. 10-19.
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152 / K. K. Oloso & Ibrahim Olatunde Uthman
19. El Awa, Punishment in Islamic Law, pp. 2-3.
20. Doi, Shari’ah, p. 252 and El Awa, Punishment in Islamic Law, pp. 10-
12.
21. El Awa, Punishment in Islamic Law, p. 4.
22. Ibid, pp. 5-6.
23. Qur’an, 24: 4-5.
24. Doi, Shari’ah, pp. 246-247 and El Awa, Punishment in Islamic Law,
pp. 20-22.
25. El Awa, Punishment in Islamic Law, p. 23 and Doi, Shari’ah, p. 248-
250.
26. Qur’an, 2: 219.
27. Qur’an, 4: 43.
28. Mohammad Hashim Kamali, “Punishment in Islamic Law: A Critique
of the Hudud Bill of Kelantan, Malaysia” Arab Law Quarterly, Vol. 13,
No. 3, (1998, pp. 203-234 and Doi, Shari’ah, p. 248-265).
29. Qur’an, 16: 106.
30. Al-Habshi, Syed Othman and Nik, Hassan (eds.) (1994), Islam and
Tolerance, (Kuala Lumpur: IKIM).
31. Uthman, I. O. (2001), “Jihad as an Islamic Institution and the Yoruba
Experience” Journal of Arts and Social Sciences, Adeniran Ogunsanya
College of Education, Lagos, Nigeria, Vol. 3, No. 1: 111-117.
32. Qur’an, 2:256, 22:39-40, 60: 9, 88: 22-24.
33. Qur’an, 22:39-40.
34. Ezzati, A. (1979), The Spread of Islam (Lagos: Islamic Publications
Bureau) pp. 6 and 28.
35. Haykal, Muhamad H. (1976), The Life of Muhammad translated by
Ismail Raji al-Faruqi (USA: North American Trust Publications), pp.
481-482.
36. Uthman, “Jihad as an Islamic Institution ,” pp. 111-117.
37. Qur’an, 2:190:193.
38. Ibid.
39. Qur’an, 178-179.
40. Qur’an, 5:32.
41. Peters, Islamic Criminal Law, p. 2.
42. Doi, Shari’ah, p. 224 and Kamali, “Punishment in Islamic Law,” pp.
203-234).
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43. El Awa, Punishment in Islamic Law, pp. 96-109.
44. Jen-T’chiang, Norman Zakiyy Chow (2007), “Advocacy On ‘Inhumane
Practices” in Azman Ab Rahman et al. (eds.) The World today: Current
Global Issues (Malaysia: Universiti Sains Islam Malaysia), p. 5.
45. Ibid, p. 5-7.
46. Ibid, p. 10.
47. Al-Suyuti, Jalal al-Din ‘Abd al-Rahman (2004), Al-Ashbah wa al-Nazair
fi Qawa’id wa Furu al-Shafi’iyah vol. 1 (Beirut: Dar al-Salam), pp. 66,
167 and 215.
48. Al-Ghazali, Abu Hamid (1322 AH), Al-Mustasfa min ‘ilm al-Usul , vol.
1 (Cairo: Dar al-Qadir).
49. Ahmad, Yousif F. “Religious Freedom, Minorities and Islam: A
Challenge to Modern Theory of Pluralism” IKIM Journal of Islam and
International Affairs, Vol. 7, No. 1: 61-68.
50. Jen-T’chiang, “Advocacy On ‘Inhumane,” pp. 6-7.
51. Qutb, Sayyid (1978) Milestones (Kuwait: IIFSO), p. 93.
52. Khan, M. M. (1986), Sahih al-Bukhâri (Arabic-English), 6th edition
(Lahore: Kazi Publications).
53. Kamali, “Punishment in Islamic Law,” pp. 203-234).
54. Uthman, I. O. (2009), Feminist Insiders-Outsiders: Muslim Women in
Nigeria and the Contemporary Feminist Movement (UK, Newcastle:
Cambridge Scholars Publishing), pp. 169-170, Uthman, I. O. (2007),
“Muslim Women in Nigeria between Postmodern Feminism and
Religious Fanaticism: the case of the Islamic Law” in Folorunsho M.
A. et al. (eds.), Revisioning Modernity in the Eyes of Religion, (National
Association for the Study of Religions and Education (NASRED) pp.
60-70 and Uthman, I. O. (2006), “Muslim Women and the Islamic State
between Political Activism and the Islamic Law: An Analysis of the
Jilbâb al- Mar’ah al-Muslimah fî al-kitâb wa al-Sunnah of Shaykh al-
Albânî” IKIM Journal of Islam and International Affairs, vol. 2, no. 1:
117-145. Abdullah, U. Y. (1998), Shari’ah in Africa (Ijebu-Ode:
Shebiotimo Publications), 117-145.
55. Ahmad, Yousif F. “Religious Freedom, Minorities and Islam: A
Challenge to Modern Theory of Pluralism” IKIM Journal of Islam and
International Affairs, Vol. 7, No. 1: 62.
56. Ansari Abdul Haseeb, (2010), “Feminist Jurisprudence in Islam: An
Overview” Journal of Islamic Law, New Delhi, Vol. 6: 101-103.
57. Ansari, “Feminist Jurisprudence in Islam, ibid, 101.
58. Qur’an, 4:19.
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154 / K. K. Oloso & Ibrahim Olatunde Uthman
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UNIVERSITY OF IBADAN LIBRARY