Report: BAOBAB - Extending Nigerian Women’s Rights Through Sharia Law

These result in feminists having to choose “between colonial interference and callous indifference.”(2) BAOBAB, a Nigerian non-governmental organisation (NGO), uses Sharia law to assist Nigerian women and is a wonderful example of how women’s rights can be actualised by drawing on the local culture itself, without appealing to external Western human rights norms. This CAI brief presents a profile of BAOBAB in the Nigerian context and argues that they offer an alternative model for dealing with situations where cultural practices and international human rights standards do not align. BAOBAB’s approach has achieved a lot of wonderful results for Nigerian women.

Western feminist evangelism

Mojubaolu Olufunke Okome argues that Western (3) feminism’s intentions often represent ‘Western feministevangelism.’(4) This feminist evangelism operates similarly to the Christian evangelism that was practiced by colonial missionaries, who worked to ‘civilise’ ‘other’ cultural practices so that these would align with Western norms. In a similar way, Western feminists sometimes make the mistake of portraying local cultural practices (5) as ‘barbaric’ because of their infringement on women’s rights. They advocate for change in the cultural practice and express preference for Western tools for ideological reform, such as implementation of human rights agreements.(6)

This approach is problematic on at least two counts. First, it ignores the autonomy of non-Western women to critically reflect on their own positions and to take action in their communities.(7) Second, it misrepresents non-Western cultures as barbaric and conceptually uneducated, unable to deal with their own social concerns.(8) The danger, however, of recognising the problems with mainstream Western feminism is that it may result in cultural relativism: the position that ‘[d]ifferent cultures have different moral codes.’(9) Cultural relativism has largely been rejected by moral philosophers, on the grounds it makes it impossible to ever critique a practice on moral grounds and it prevents us from talking about ‘moral progress’ in our own cultures.(10)

How then does one proceed when confronted with concerning cultural practices, while avoiding both Western feminist evangelism and cultural relativism? BAOBAB provides a useful example of how a middle ground can be negotiated.

BAOBAB background

In 1993 the Women Living under Muslim Laws (WLUML) network began a three year research project in Nigeria, in which various aspects of Muslim law and women’s rights in Nigeria were examined. In 1996 the project came to an end after it produced an abundance of research. This research indicated that many women in Northern Nigeria (11) experience human rights restrictions and are unable to defend their rights because of a lack of resources, both in terms of knowledge about their rights and in terms of access to legal resources, such as lawyers.(12) BAOBAB was consequently established to raise awareness about women’s rights in Nigeria, to conduct research and to provide information to women about their rights.(13)

In 2000, BAOBAB extended their activities to provide legal defense and support to women who were unfairly charged under Sharia penal codes in Nigeria, and they have since extended these services to minors of both sexes.(14) Most of the women’s cases BAOBAB takes on are appeals against sentences of lashing or stoning for charges of ‘zina’ (unlawful sexual activity). The most well-known case has been that of Amina Lawal, who was charged with zina on 15 January 2002 and was sentenced to death by public stoning. BAOBAB provided the resources to appeal the case and she was acquitted in September 2003.(15) What is significant about BAOBAB’s appeal of Amina Lawal’s and other similar cases, is that this NGO lodges appeals within the Sharia legal system and does not resort to external, non-Muslim, non-Sharia or outright Western human rights standards.

Laws and the human rights approach

BAOBAB’s use of Sharia law in appeal cases is not the NGO’s only option. They could also appeal to general Nigerian law or to the numerous international human rights agreements that Nigeria is a signatory of. Both of these alternative approaches would offer BAOBAB a legally justified case, but much of the organisation’s success has been based on its Sharia approach.

- Sharia law within Nigerian law

Nigeria operates on a triple legal system- which means that general Nigerian law (i.e. statutory and common law) coexists with customary and Sharia law.(16) In 1999 the former Nigerian military regime came to an end and was replaced by a civilian Government.(17) As a result of the change in Government, two separate legal events occurred that are relevant to the issue at hand. First, the current Constitution came into effect (29 May 1999) and second, the Sharia penal code was adopted in twelve Northern Nigerian states (i.e. Sharia law was extended to criminal issues, where previously it had been restricted to issues of personal status law).(18) Both legal events occurred within the same time frame, but the Constitution was supposed to take precedence over all subsidiary legal systems.(19)

Despite this intention, the current status of Sharia law in the Constitution is unclear. It provides for the existence of the triple legal system, acknowledges the existence of Sharia law in Nigeria and recognises the associated court system, but the jurisdiction of Sharia courts is set to matters of personal status and therefore does not extend to the criminal jurisdiction attributed to it by the penal codes that have been adopted at the level of states. The Constitution does not explicitly state, however, that criminal matters are the exclusive jurisdiction of federal courts and it is therefore possible to address criminal matters in Sharia courts.(20) Whether or not Sharia courts have jurisdiction to sentence people to stoning and lashing is uncertain and this status quo provides BAOBAB with a clear route for appeal in cases like Lawal’s.

Regardless of the jurisdiction of Sharia courts, it is possible to appeal zina cases on the grounds that their punishment is inconsistent with the human rights provisions of the Nigerian constitution. For instance, Chapter II Article 19 enshrines human dignity as a value of the Nigerian legal order.(21) It seems unlikely that the public nature and prolonged pain associated with lashing and stoning sentences would be found to be consistent with the dignity provision of the Constitution. Although appeals of this nature have not appeared before the Nigerian court system(22) the dignity provision could be an alternative route of appeal for BAOBAB.

- International human rights charters

In addition to appeals on the domestic level, appeals could be made on the ground that punishments allowed under Sharia law contravene the provisions in international agreements that condemn torture; cruel and degrading treatment; and infringements to human dignity. Examples of such treaties include: the International Covenant on Civil and Political Rights,(23) the Convention Against Torture or Other Cruel Inhuman or Degrading Punishment (24) and the African Charter on Human and Peoples’ Rights.(25) Nigeria is a signatory to all three agreements and BAOBAB would have a legitimate case by appealing to these conditions.

- The Sharia law approach

Despite having alternative legal routes by which to make appeals, BAOBAB has pursued this process through Sharia law – a route less popular with the international community, who perceive this system of law to be frozen in time and closed to debate. Barrow, for instance, states that: “In Islam, these punishments are the will of God as expressed in the Qur’an. As such, no human being can question this authority without risking social ostracism or a possible death sentence for heresy. Thus, violations continue unfettered.”(26)

BAOBAB chooses to work with Sharia law in order to work directly with Muslim communities in Northern Nigeria. In 2000, the case of Bariya Ibrahim Magazuu, a 13 year old girl who was sentenced to 180 lashes in public for zina and for providing false testimony (27) received substantial support from NGOs in the global North. The local governor dismissed the international groups and their opinions because they were not Muslim and their opinions were not based in Sharia law.(28) He however agreed to entertain appeals from BAOBAB that originated within Sharia law. Through this approach, BAOBAB was able to convince the trial judge to drop the sentence to only 100 lashes and to postpone the sentencing until after she had finished breast feeding, which would give BAOBAB an extra year to continue the appeal process.(29) Unfortunately, her sentence was brought forward, with only one day’s notice and she received the 100 lashes. It is suspected that the sudden imposition of the sentence was a response to the pressure from international human rights groups and that the local authority was reasserting power over the community.(30)

Concluding remarks

Although many of their cases are still pending and appeal processes remain lengthy,(31) BAOBAB has experienced impressive success by making appeals through Sharia law and they have had charges reversed on the all the appeal cases they have handled to completion. If nothing else, let this NGO’s achievements inspire us and show that ‘culture’ is not an impenetrable static force, but rather a very fluid, dynamic asset available to utilise for the improvement of women’s lives.

NOTES:

(1) Contact Katherine Furman through Consultancy Africa Intelligence's Eyes on Africa Unit (eyesonafrica@consultancyafrica.com ).
(2) Jaggar, A.M. 2005. “‘Saving Amina’: Global Justice for Women and Intercultural Dialogue.” in Ethics and International Affairs, 19 (3): 57.
(3) Here the term ‘Western’ is used to describe to a set of feminist theory that coheres with hegemonic norms prevalent in the West and does not necessarily refer to feminist theory developed in a specific geographic area. It is therefore possible to have feminist academic work developed in Europe and the United States that does not contain the problems typically associated with Western feminism and work produced in Africa.
(4) Okome, M.O. 2005. Listening to Africa, misunderstanding and misinterpreting Africa: Reformist Western feminist evangelism on African women. http://www.africaresource.com. P. 1.
(5) Ibid. Okome uses the example of the Western feminist reaction to female circumcision as an example of this. See p 2-4.
(6) Ibid. P. 2.
(7) Ibid. P. 3.
(8) Ibid. Pp. 2-3.
(9) Rachels, J. 2002. “The Challenge of Cultural Relativism.” in Feinberg,J. & Shafer-Landau, R. (eds.) Reason and Responsibility. USA: Wadsworth, p. 617.
(10) Ibid. Pp. 619-620.
(11) Northern Nigeria is predominantly Muslim and has been subject to the Sharia Penal code since 1999.
Para-Mallam, O.J. 2006. “Faith, gender and development agendas in Nigeria: conflicts, challenges, and opportunities.” in Gender and Development, 14 (3): 410-411.
(12) BAOBAB. 2008. Annual Report. http://www.baobabwomen.org. P. 3.
(13) Ibid.
(14) BAOBAB extended their services to minors because women are disproportionately affected by cases against minors, due to their roles as mothers and primary care-givers. BAOBAB. 2003. Sharia implementation in Nigeria: The journey so far. http://www.baobabwomen.org. Pp. 10 & 17.
(15) BAOBAB. 2003. Sharia implementation in Nigeria: The journey so far. http://www.baobabwomen.org. P. 14.
(16) Para-Mallam, O.J. 2006. “Faith, gender and development agendas in Nigeria: conflicts, challenges, and opportunities.” in Gender and Development. 14 (3): 410.
(17) Barrow, S. V. 2003. “Nigerian Justice: Death-by-stoning sentence reveals empty promises to the state and the international community.” in Emory International Law Review, 17: 1209.
(18) Ibid. P. 1212.
(19) Barrow, S. V. 2003. “Nigerian Justice: Death-by-stoning sentence reveals empty promises to the state and the international community.” in Emory International Law Review, 17: 1217. Article 13 (1) of the Constitution entrenches the Constitution’s supremacy and states if a law is found to be inconsistent with the Constitution it will be declared void.
(20) BAOBAB. 2003. Sharia implementation in Nigeria: The journey so far. http://www.baobabwomen.org. P. 5.
(21) Ibid. P. 1219.
(22) Ibid. P. 1219.
(23) Barrow, S. V. 2003. “Nigerian Justice: Death-by-stoning sentence reveals empty promises to the state and the international community.” in Emory International Law Review, 17: 1217. Articles 6 and 7.
(24) Ibid. Articles 2 and 16.
(25) Ibid. P. 1220. Articles 4 and 5.
(26) Ibid. P. 1218.
(27) ‘She was accused of providing false testimony for providing the names of three men who were the possible fathers of the baby, but who were dismissed by the Court based on the testimony of the three men.
(28) BAOBAB. 2003. Sharia implementation in Nigeria: The journey so far. http://www.baobabwomen.org. P. 11.
(29) Ibid.
(30) Ibid. P. 12.
(31) Imam, A. & Medar-Gould. 2003. Please Stop the Amina Lawal Protest Letter Campaigns. (Open Letter)

by Katherine Furman

16 Sept. 2010