Reaction to Whipping of Bariya Bagaza-BAOBAB

This statement from BAOBAB was forwarded to us from the Inter-Church Council on Africa.

BAOBAB is a Nigerian organization which promotes and defends women's rights. BAOBAB is not opposed to shari'a (the director Ayesha Imam is herself Muslim), but concerned that shari'a be properly administered for the protection of girls and women.

BAOBAB for Women's Human Rights Condemns the Whipping of Bariya Maguzu.

BAOBAB for Women's Human Rights strongly condemns the whipping of Bariya Ibrahim Maguzu. This was cruel and deliberate abuse by the Zamfara State Government. The rights of Bariya Magazu, a teenager, were violated for political expediency. This abuse of power by the Zamfara State government has terrible implications for the rule of law, justice and security in the state. The incident shows up clearly the misuse of religion, as this abuse was carried out in the name of *Islamic law.

The Zamfara State government had Bariya Magazu whipped despite the fact that an extension of leave to appeal was being filed on her behalf in the sharia court in Gusau, and despite the fact that the officers of the judicial system were aware that an appeal was being prepared. Bariya Magazu, as a Muslim, has a right to an appeal in Muslim laws -- which insist that in hadd offences, such as this, there should be no shadow of a doubt before convictions are confirmed. She had a right to an appeal under the Zamfara Penal Code itself. And she had the right to appeal as a citizen of Nigeria in constitutional law. What kind of claim can there be to a just Muslim legal system - Sharia - in Zamfara state, when it does not even wait for a legal appeal within its own courts? What was the rush to whip a young girl who had just given birth and who was breastfeeding her baby?

The Zamfara state government was so insistent on having Bariya Magazu whipped that it reneged on its own promise to suspend the sentence whilst she breastfeeds her baby. The Zamfara government has gone so far as to deny that it ever made this promise. The suspension would have afforded time for the appeal to be carried out fully.

The timing was clearly not part of a normal legal process. Bariya and her family were informed that the sentence was to be carried out only the night before the whipping. Early the next morning a car was sent for Bariya. She was driven to Tsafe and whipped publically. Afterwards, humiliated, bruised, crying and in pain, she was left to make her way home alone.

The first issue is that Bariya should not have been convicted at all, much less whipped. The Zamfara Penal Code states that zina (adultery or fornication) is an offence when there is no doubt as to the consent and the circumstances of illegality of the act of intercourse between individuals who are not married to each other. Pregnancy is evidence of sexual intercourse. It is not evidence of willing participation in sex. Pregnancy can result from rape and coerced sex. Considerable doubts were raised about Bariya Magazu's consent. Since the offence has such a serious punishment, Muslim law generally requires four witnesses to the act and willing consent. At no point were there any witnesses called by the court to testify that Bariya had sex willingly.

Nor did Bariya Magazu confess freely and without intimidation to zina. She was taken by her uncles to the village head and questioned. Then she was dragged, because of vigilantes, to be cross-questioned under oath by a judge in court -- unfamiliar and frightening settings to many of us, including a young non-literate village girl. These circumstances cannot be described as willing and free confession. Furthermore, far from confessing freely, she raised the issue of coercion. Without either proper witnesses or a free confession, if Muslim jurisprudence was indeed being followed, why was Bariya Magazu convicted at all?

Even if she had been properly convicted, why was the penalty for this young girl so severe? The Zamfara Penal Code also states that when a person under 18 is convicted of any offence, a fine or a punishment of 20 lashes can be substituted for the stated punishment. Why was this provision not used in the case of Bariya Magazu -- a poor and uneducated girl?

It seems that only the poor and uneducated are being harassed under these morality laws -- allegedly based on Islam. Of the cases prosecuted in Zamfara, none have convicted the rich and powerful. Immorality -- theft, corruption, embezzlement of public funds, adultery, promiscuity -- is not only found among the poor. It is when the rich and powerful carry out these acts with impunity that the greatest damage is done to society.

On the basis of what has happened to Bariya Magazu, it seems the Zamfara version "Islamic law" does not protect women from possible sexual assault and coercion. Instead it is willing to punish the victims of such assault. There were allegations that Bariya Magasu was coerced. The court decided not to pursue these allegations. The clear implication of this decision is that men may violate and rape girls and women with impunity in Zamfara, as they will be acquitted by Zamfara courts, so long as they make sure there are no witnesses to their crime. On the other hand, women and girls who are the victims of rape or coercion will have further insult and injury added to their misfortunes. They will be subjected to charges of zina and false accusation. This clearly violates women*s rights to justice and security, while protecting the men who violate women's rights.

The court invoked the rule of requiring at least four witnesses to testify in order to protect the accused men from punishment. The same court did not even consider invoking the same rule on Bariya Magazu's behalf. Obviously a different, unequal and discriminatory standard was used against her -- despite the fact that males and females are equal before Allah, and in punishments of zina in the Qu*ran and in Muslim jurisprudence.

Bariya and her family are very upset at the whipping. This abuse of Bariya Maguzu's rights will not stop the work for her appeal and the campaign to prevent further abuses of women's and girls' rights, and miscarriages of justice. On the contrary, it will fuel it, since the whipping of Bariya Magazu has further demonstrated the need for such concerted action. BAOBAB for Women*s Human Rights thanks all those who have offered support and advice for Bariya Magazu, and hopes that this will be continued and strengthened. Evidence from Muslim communities and countries shows that Sharia or Muslim laws can be codified and implemented in ways that protect women's and other human rights. This must be what happens in Nigeria also.

Ayesha M Imam
BAOBAB for Women's Human Rights
P O Box 73630
Victoria Island
Lagos
Nigeria
Tel / Fax +234 1 262-6267
Email:ayesha@baobab.com.ng