Casting the First Stone
Human Rights lawyer Guleid Jama, a SIHA program adviser, has received violent threats from an imam in Hargeisa, Somaliland, after speaking out against the growing Salafism and militancy in the region.
Guleid Jama and SIHA have taken a stand against the recent death sentence by stoning passed against a man found guilty of adultery in Somaliland. A disabled woman - who was raped by the man in question - was also sentenced to 100 lashes.
In March 2019 the Court of Appeal overturned this sentence, and a complaint was lodged against the district court judge responsible. Nevertheless, while the sentence itself will not be carried out, Guleid Jama still faces threats for his opposition to it.
SIHA has frequently argued that stoning does not originate in Islamic traditions. Islamic Jurists throughout history, since the 7th century, have argued against stoning.
In the following article from Women in Islam , Hala Al-Karib, the journal’s editor and Director of SIHA, reflects on the views of Islamic scholars.
“Let He Who is Without Sin Cast the First Stone”
It is peculiar how the world cold-shouldered the phenomenon of stoning which re-emerged in many Islamic countries in the late 20th century. One of the most ancient forms of execution in the world, stoning had already been applied in Judaism and later in Christianity. As one of the most common forms of death penalty described in the Bible, it prompted Jesus’s famous anti-death penalty statement, "Let he who is without sin cast the first stone.” (John 8:7).
The reappearance of stoning in modern Islamic legal systems is closely linked to the expansion of political Islam after World War II and in the second half of the 20th century, as a reaction to the growing communist and socialist ideologies in and around the Middle East and Africa, which intimidated not only Muslim communities but also Western actors during the cold war. But it is more complex than that. Vast oil resources found in countries of the Middle East have prompted their leaders to seek an ideological legitimation to sustain and control their accumulative wealth. Political Islam serves as a simplistic means for leaders to manoeuvre power and to manipulate the desperate and isolated masses.
Stoning is incorporated into today’s legal systems of a number of predominantly Muslim countries: Iran, Nigeria (in about one-third of its 36 States), Pakistan, Sudan, the United Arab Emirates, the Kingdom of Saudi Arabia, Mauritania, and Yemen. In Afghanistan, stoning was practised during the Taliban’s rule but was halted after. In 2013, when a proposal was presented to parliament to reincorporate stoning into the legal system, the government backed away from it after a leak of the draft law attracted strong international condemnation.
Although stoning is not part of the legal framework in Somalia, many women and one man have been stoned in the Al Shabaab militia-held areas since 2008. The latest was Safia Ahmed Jimale, a 33-year-old mother from Lower Shabelle region in Somalia, who struggled with mental illness. She was executed in October 2014. A man presenting himself as an Al Shabaab judge said that Jimale confessed to having three husbands, none of who were aware they were married to the same woman. All three men testified against her. According to the unidentified judge, Jimale admitted her guilt before the court and declared her readiness to be stoned in order to attain God’s forgiveness. The confession of an alleged adulterer supercedes the obligation of the accusing tribunal to “prove” that adultery occurred.
The punishment of stoning and traditional jurists
The punishment of stoning is the most controversial form of corporal punishment under Islamic guidance (hudud). Although stoning is not mentioned in the Qur’an as punishment for adultery (zina), it emerged later as an additional had - a form of corporal punishment for adultery in the traditional jurisprudence. It concerns the muhassin, a term referring to Muslim men and women who, being in a marriage contract, are free to be sexually active, as opposed to the non-muhassin who do not fulfil these conditions. Currently, the legal legitimacy of stoning largely derives from the sunna and the guidance of traditional jurists. However, even when examining sunna and the overall consensus (ijmaa) of traditional jurists’ views in the 8th century, stoning remains controversial.
The establishment of zina as a crime, as Islamic traditional jurists agree, depends on a confession and several verifications of the confession, or on testimonies of four adults who witnessed the act while it was happening. However, there is a great deal of disagreement in different schools of jurisprudence about approving a confession which requires different forms of evidence and quality of testimonies for making a ruling. For example, the Hanafi and the Hanbali schools of jurisprudence require the confession of zina to be uttered four times, while the Malikis consider one confession sufficient.
A main challenge inherent to the practice of stoning is that women are disproportionately accused of adultery compared to men, which raises political questions. This is most noticeable in the Maliki jurisprudence where pregnancy can serve as evidence for adultery. In a desperate attempt to circumvent stoning, the majority of Maliki Imams agree on “prolonging” the duration of pregnancy in zina cases, and thus suspending the act of stoning for up to seven years before the case would be revisited, out of concern for the relationship of mother and child. It is hoped that after that time the interest in the case subsides. Besides, a review of the matter requires placing the views jurists held in the 8th century into the social and historical context of their time.
The wisdom of African elders: concepts of sotra and reparation
Muslim communities across Africa have developed intelligent strategies for reconciling historical norms and traditions and for their integration into their adaptation of Islam, particularly for zina and other moral matters of importance.
African traditions are known to focus on collective rights and community interest. For example, elders in Somalia, despite a heritage of patriarchy and a traditional tendency to subjugate women, never exercised stoning and instead would use reparation or other means of justice provided for in customary law to settle violations of cultural norms, especially those related to sexual behaviour. However, with the state structure in Somalia failing, traditional systems have largely disintegrated and are losing legitimacy. Traditional systems in Somalia are consistently manipulated by whoever holds power in the local context. Militant groups such as Al Shabaab who present themselves as an alternative in terms of governance and ideology fill the vacuum left by a weak State and a collapsing traditional system. The killing of Safia Ahmed Jimale, despite her family repeatedly having communicated her mental illness to Al Shabaab prior to the sentence and her execution, not only reflects the absurdity of political Islam, but also presents an insult upon Muslim jurists who had already in the 8th century displayed logic and objectivity when addressing sexuality and persecuting immoral acts. Those jurists had unanimously agreed that individuals with mental illness were not qualified to undergo trial or punishment.
The case of Laila Ibrahim Issa Jamool, a 23-year-old from Sudan, further illustrates the preposterousness of actors of political Islam. The young woman from Kordofan had fled conflict and the destruction of livelihoods in rural Sudan and had been residing with her family in Mayo, a quarter in the peripheries of Khartoum, when she was sentenced to death by stoning in July 2012, for zina under Article 146 of the Sudanese Penal Code of 1991. She was reported to police for adultery by her former husband, after the couple had been battling their divorce at court for over 12 months, and her family did not have the resources to return the dowry payments he once made. Meanwhile, after having separated from her husband, Laila had met another man and they had a child together. Laila, who had no legal representation, communicated to the judge that she planned to marry her fiancé immediately after the divorce was finalized. By then, a family dispute had turned into an execution case. After only three court sessions, including a referral to the High Court, Laila was sentenced to death by stoning, and detained and shackled at her ankles with a six-month-old baby at her side. Eventually, she was released after her case gained the attention of local and international advocacy groups who campaigned for her. However, stoning remains alive in Sudan’s legal system, awaiting its next victim.
An interesting dimension of Laila’s story is the position her family and her local community took. They were all extremely shocked by the charges and could not make sense of them logically or through their understanding of Islam. For generations, such matters have been addressed through local traditions of the community and were resolved through reparations, such as the application of sotra values, which concede concealment and respect of individual privacy. This form of reconciliation has long been used in support of Islamic values when dealing with matters related to family and children. The current harsh and random proceedings by political Islamic forces lead to great confusion in local communities over social values, demoralising communities who are caught between conforming to militant Islam or becoming targets and victims of its repressive power.
Dreadful consequences of the re-emerging of stoning in present legislation
The re-emergence of stoning as a punishment leads to many other tragedies apart from the horrific day-to-day threat to women’s and men’s lives. Hundreds of children born outside of the formal institution of marriage in Sudan are left by their mothers in dumpsters and by the road side, often to be gnawed by dogs and rats. Unmarried mothers are terrified to approach the department of social welfare and hand over their children as it used to happen decades ago when mothers’ data was concealed and their confidentiality respected. Under the current legal system, confidentiality is not given and unmarried mothers are exposed to a number of threats. Unmarried as well as married women who become pregnant from men other than their husbands have their pregnancy used against them as evidence for zina and are at risk of harsh punishments such as imprisonment, lashing and death by stoning. Traditional values and concepts such as sotra and reparation, which would otherwise help in resolving conflicts in family and personal relations, are undermined by a legal system that invades individual privacy and promotes persecution of individuals based on their personal behaviour.
The incorporation of stoning into today’s legal systems of many countries of the Sahel and Horn of Africa is politically motivated and geared at controlling communities through intimidation. The impact on communities and their values, on their understanding of their faith and heritage and on their traditions which previously supported them in becoming better Muslims, is catastrophic. Further, there is a gender dimension to the punishment which primarily targets women since presenting four witnesses to verify adultery is practically impossible, and pregnancy is used for accusing and criminalising women.
Looking at the temporal and spatial relations of the increase in the prevalence of stoning, it reveals to be part of a larger pattern of manipulation of religion by political Islamic forces to access and retain power. In fact, the Islamic traditional jurists in history have done their best to distance themselves from and avoid stoning as a punishment and traditional Muslim communities in Africa were perceptive in their use of cultural and historical customs regulating unwarranted personal behaviour. However, it remains a tragedy that in the 21st century, political Islamic actors succeed to enforce their dogmatic agenda without being challenged or held accountable by the world or by Muslims themselves.
From Women in Islam Issue 2 (2015)