The John Humphrey Freedom Award, 2002

On December 9, 2002 the John Humphrey Freedom Award was conferred on Ayesha Imam and BAOBAB for Women's Human Rights in recognition of their work in defending and developing women's human rights in secular, customary and Muslim religious laws in Nigeria.  The Award is made annually by Rights and Democracy (the International Centre for Human Rights and Democratic Development) a Canada-based organization.

“Rights & Democracy (International Centre for Human Rights and Democratic Development) is a Canadian institution with an international mandate. It is an independent organization, which promotes, advocates and defends the democratic and human rights set out in the International Bill of Human Rights. In cooperation with civil society and governments in Canada and abroad, Rights & Democracy initiates and supports programmes to strengthen laws and democratic institutions, principally in developing countries.”

Ladies and Gentlemen,

I am honoured on behalf of BAOBAB for Women's Human Rights and myself, to accept the conferment of the John Humphrey Freedom Award.  When BAOBAB was formed in 1996, it did not occur to us that one day the work we set out to do would be internationally recognized in this way.  Here I want to pay tribute to Hajara Usman, our dear friend and colleague.  Hajara Usman was the coordinator of the Nigerian women and laws action-research team that became the core volunteers of BAOBAB and was its co-founding director with me.  Sadly, she died in 1999, but we remember and value her life, work, contributions and vision.

That vision, the BAOBAB vision, is to defend, promote and develop women's human rights in customary, secular and religious laws.  This has meant research to find out what rights and/or constraints exist in laws, implementation and in social practice.  It meant further disseminating that knowledge and means of actually accessing those rights.  But further than that, it means examining whether laws and their implementation are adequately protecting rights and devising strategies to further develop laws, implementation and social practices where they do not.

Thus BAOBAB has undertaken research and produced reports on women's rights and laws in Nigeria, including on access to justice, for the Oputa Human Rights Violations Investigation Panel, and (with other non-governmental organizations) on Nigeria's record in fulfilling obligations under the Convention for the Elimination of All Forms of Discrimination Against Women, as well as a series of legal literacy leaflets.  BAOBAB draws public attention to women's rights issues - for example, through co-organising with the Civil Resource and Documentation Centre Nigeria's first National Tribunal on Violence Against Women; organizing art competitions for young people on building women's human rights cultures; as well as co-ordinating and participating in both national and international campaigns and networks in gender justice, like the current national Domestic Violence Bill, the international solidarity network Women Living Under Muslim Laws (for which BAOBAB coordinates in Africa and the Middle East), and, the International Criminal Court Gender Caucus. BAOBAB runs training workshops for paralegals, in leadership skills for women, and in gender awareness in project management and research, amongst others.  BAOBAB also supports women and girls to fight or redress rights violations in individual cases, ranging from domestic violence, to forced marriage, to rape and sexual abuse, to achieving custody and guardianship and maintenance rights for their children.

All of these activities also serve to support the work of the scores of unpaid volunteers in states across Nigeria.  These state outreach teams' activities include running legal consciousness workshops on different aspects of rights, training sessions, paralegal clinics, street theatre, mediation and counseling.  They serve to interface local level work, with women and men in rural and urban areas in Nigeria, with the national and international levels and thus to make available and accessible the abilities to examine, actualize and develop rights to people at all levels and in all regions.

Promoting Women's Rights in Muslim Laws

BAOBAB works on women's rights in customary and secular laws, as well as religious laws, but the work for which it is best known - and for which Rights and Democracy have chosen to honour us - is that of defending women's rights in Muslim laws and practices. 

The Women and Laws action-research team was around 70 people - women's rights activists, ulema (scholars of Islam), lawyers, social science researchers, historians, and Arabic linguists amongst them.  They spent over three years researching Muslim jurisprudence, the history of Muslim laws in Nigeria, Sharia court judgments (especially at the higher levels) and daily practices in diverse Muslim communities across Nigeria, as they affect women as family members, citizens and individuals (as well as how secular and customary laws and practices interact with Muslim laws and practices).  It was clear that many women cannot access their rights in Muslim laws because they do not know of them.  Consequently in 1996 BAOBAB and its volunteer state outreach teams began making that knowledge available to women (and men) of through legal literacy leaflets and activities, training workshops,paralegal support and so on.

Until 1999, Muslim laws in contemporary Nigeria had been largely uncodified family and personal status laws (marriage, divorce, child custody and maintenance, inheritance).  They were not enacted as written statutes.  In 1999, beginning with Zamfara state, some states starting passing a series of new Sharia Acts.  In principle, this could have included many areas in economic and social development, such as provisions for the collection and distribution of zakat (the charity tithe, which is one of the five pillars of Islam), or the implementation of regulations prohibiting usery (such as charging interest on loans by moneylenders or banks).  In practice, however, in none of the 12 "new Sharia" states has there been much beyond elaborating and executing punishments for offences like theft, zina (adultery or fornication, depending on marital status), and drinking alcohol.

The politics of the situations in which these new Acts were passed has had the unfortunate consequence of serious shortcomings in their drafting, content and implementation.  Even more unfortunately, those politics have also to produced claims that the new Sharia acts of 1999-2002 incorporate perfectly a universal God-given code, and that to raise any issues of possible defects (and therefore of the possibility of removing those defects) is unIslamic, anti-Sharia and tantamount to apostacy - in short a politics of intimidation and threat.  However, the falsity of allegationslike these are clear, when examining the nature of Muslim laws.

There are several 'schools' of Muslim legal thought (fiqh). The four main Sunni schools that exist today were formed through the personal allegiance of legal scholars or jurists to the founders from whom each school took its name - Hanafi, Maliki, Shafi and Hanbali. Each school was influenced by its own specific circumstances of origin. For instance, both Hanafis and Malikis are the representatives of the legal tradition of a particular geographical locality - the former in Kufa, present-day Iraq, and the latter in the Arabian city of Medina. The two later schools, following Abu Hanifa and Al-Shafi developed precisely out of a controversy in jurisprudence (i.e. human reasoning about law). Consequently each school has variations according to the cultural, political and socio-economic contexts in which they were developed and the philosophy of reasoning that was accepted.

Even the oldest schools of Muslim law did not exist until many decades after the revelation of the Qu'ran and the Prophet's death (pbuh). Hence the laws they outline (commonly collectively referred to as Sharia or as Islamic law)are clearly not direct divine revelations from Allah, but mediated through human judicial reasoning (ijtihad in Arabic).  Amongst the principles to be borne in mind in ijtihad are istihsan (equity) and istihsal (the needs of the community).  It was recognised in that 'golden period of Islam' that there were legitimate variations in Muslim laws, based on context - and therefore that Sharia must be subject to progressive development and therefore to change.

Reflecting the various and changing concerns of different societies, Muslim laws are diverse. For instance, orthodox Shia Sharia permits daughters who have no brothers to be residual heirs, while the Maliki school does not. Hanafi Sharia enables a woman to choose a husband without her father's permission, Shafi sharia does not.  The schools also vary in their attitudes towards the management of fertility - some permitting family planning and/or abortion while others do not or require differing conditions.

On polygyny (i.e. the marriage of a man to more than one woman at a time) there is wide variation in Muslim legal discourses.  The Qu'ran permits polygyny.  It does not require it.  And it specifies certain conditions that should be fulfilled if polygyny is to occur.  Furthermore, it is also known that the surahs on polygyny were revealed after the battle of Uhud when many Muslim men were killed, so that many women and their children were suddenly without a man's contribution to their livelihood and in precarious economic straits.  None of foregoing statements are contentious. Yet, Muslim thinking and laws on polygyny varies tremendously.  Yusuf Ali and others have argued that the conditions are impossible to fulfil, and therefore that polygyny should be banned. Others have argued on the basis on surah 24:32, that monogamy is clearly preferred.  Hence in Tunisia and South Yemen before re-unification, for instance, polygyny was banned or allowed only on very stringent conditions, which had to be validated by a court.  At the other end of the spectrum, there is emphasis on the permission to marry polygynously.  Hence in Nigeria, for instance, not only is there fierce insistence that polygyny is allowed by immutable law, but men often go further to say that they must marry polygynously in order to be like the Prophet (although the Prophet's first marriage was wholly monogamous and ended only with the sad death of his wife).  These and other variations in Muslim law and reasoning have rather significant effects on women's rights and lives.

Muslim laws and consensus of legal scholars and the community (ijma) also change over time.  As with polygyny, slavery is permitted in the Qu'ran but not required.  Yet Muslim legal thinking has now developed such that Muslim states no longer permit slavery.

Muslim laws are therefore not unchangeable law, to be accepted unquestioningly by all Muslims. In fact, the scholars after whom the four currently accepted schools of sunni Sharia were named, had no intention of making their views final and binding on all Muslims.  Imam Hanbal urged "do not imitate me, or Malik, or al-Shafi, or al-Thawri and derive directly from where they themselves derived".  Imam Malik, the founder of the school of fiqh accepted in Nigeria, cautioned that "I am but a human being. I may be wrong and I may be right. So first examine what I say. If it complies with the Book and the Sunnah, then you may accept it. But if it does not comply with them, then you should reject it."  So in the views of the very founders of the schools of Sharia, good Muslims were precisely those who questioned and examined and trusted their own reasoning and beliefs.  Furthermore, the founders also found it acceptable that the reasoning of one legal tradition might be considered correct on one issue, but that of another more correct on a different issue.

The unthinking acceptance which dominates most Muslim societies derives from the myth of the 'closing of the doors of ijtihad', whereby for the last thousand years and more, legal jurisprudence has ceased to develop in favour of following established models. But it should be noted that this was a political event not a religious requirement. Abu Zahra wrote of the acceptance of ijma (a consensus about the schools of sharia at that time) in the tenth century that it was "but for the maintenance of national unity and to check individual deviations, that al-ijma was legalised as an authority after the sacred texts."  Refusing further ijtihad and legal development is not a religious or divinely sanctioned act. It is not required in the Qu'ran or by the Sunnah (the traditions of the Prophet, pbuh).  Unfortunately, both existing argumentation and the possibility of developments in Muslim law, especially as regards women's rights, are being blocked in Nigeria, by the fiction that there is only one unchangeable, uncriticisable system of Muslim laws and that this is already in effect in the 'new Sharia' states in Nigeria.

The more immediate and pressing problem, however, is that the new Sharia Acts criminal legislation and their implementation are a travesty even of the conservative orthodox jurisprudence.  Amongst other things, they lack some of the important safeguards in orthodox Muslim jurisprudence, such as the doctrine of shubha, that there should be no conviction where there is any element of doubt; or the requirement of repeated and voluntary confessions if there is not the eye-witness testimony of four witnesses of impeccable character to the willing act of sexual penetration; to the permissibility of the retraction of confessions right up to and including the moment of execution of punishment.

Furthermore, the implementation of the new Sharia Acts has clearly been discriminatory against women.  By postulating that, by itself, pregnancy outside marriage is evidence of zina (a minority position in Sharia which is not held by the Hanafi, Hanbali and Shafi schools, nor a variant of the Maliki school), women have been held to a different standard of evidence than men. Pregnant women are required to provide evidence to prove their innocence, but men are not.  If the prosecution does not provide independent evidence (such as four eye-witnesses), men can simply walk away, unlike such women. And yet, the Qu'ran specifies that whoever brings an allegation of zina without 4 witnesses will themselves be guilty of false witness and liable for punishment.  In addition, zina, which is defined as a heterosexual act must necessarily include at least one man and one woman. But, more women than men have been both charged and convicted of zina. Women who ought not to even have been charged, have been convicted of zina and sentenced to death, by ignoring the well-established Maliki doctrine of the "sleeping embryo" (kwantace in Hausa), whereby a child born to a woman within a set period after the end of her marriage (in some areas up to seven years), is assumed to be the child of that marriage.  Women have also been accused and convicted of zina as prostitutes, for instance, with neither confession nor the testimony of four witnesses to a willing act of sexual intercourse, nor even pregnancy, for evidence.

Another consequence of these factors is to deprive women and girls of any protection under Sharia from sexual assault or rape.  A woman making such a charge would be required to produce male witnesses as evidence.  Which men of impeccable character would stand by to witness such acts?  How many rapists wait for an audience before sexually assaulting women and girls - or for that matter boys? Thus the victim of abuse is in double jeopardy, likely to find herself convicted of both zina, (having admitted that non-marital sex took place) and false testimony (in being unable to produce the requisite witnesses)

In addition, there are a host of practices, with no legal basis at all, which are being imposed on society in the name of 'sharianisation'.  These include the widespread imposition of dress codes on women, attempts to force women to sit at the back of public vehicles, and a midnight curfew in Gusau. Many of these are enforced by extra legal groups of young men vigilantes  - sometimes openly supported by the state government as in Zamfara, but sometimes with attempts to control and stop them from taking the law into their own hands, as in Kano state.

In responding to these factors, BAOBAB has refused to be intimidated by accusations of being anti-Islam or by threats of violence and other harm. BAOBAB led the way in offering support and efforts for reversal and redress to victims of the discriminatory implementation and violation of rights of the new Sharia acts, beginning with Bariya Magazu.  Currently there are around 20 individuals being so supported.  To do so, BAOBAB put together a legal strategy team of independent Muslim lawyers, rights activists and Muslim scholars to offer advice and information. In addition, BAOBAB has researched and drew upon its international links to acquire information on similar cases in other geographical jurisdictions, as well as raising resources to cover the costs of the appeals and support activities (legal fees and court costs, transport, counselling, provision of 'safe' houses and so on).  In addition, BAOBAB has been working in collaboration with a wide range of women's and human rights activist and organisations - the whole Nigerian human rights movement has been working in solidarity, in different ways, on this issue.  So far, none of the sentences to death by stoning for adultery have been carried out.  All of them have either been quashed on appeal, or are still in the process of appeal.

BAOBAB has also consistently worked to enable and encourage the widening of discussions, prevent the silencing and end the current climate of fearing to talk. It has raised publicly critiques of rights violations in the name of Muslim laws and Islam, and encouraged others to do so.  Additionally, BAOBAB started a series of workshops whereby members of Muslim communities (members of the ulema and ordinary Muslims, rights activists, conservatives and progressives from different walks of life and parts of the country) came together for several days.  During this time, they examine Quranic surahs and hadith, discuss both dominant and less well-known interpretations of these, and look at the actual constructions of Muslim laws in countries and communities around the world.  They do this for each of thirty or so different issues of particular importance to women (e.g. choice of marriage partner, rights to inheritance, forms of divorce, witnessing, leadership, reproductive rights, bodily integrity).  These workshops thus examine the potential and actuality in Muslim laws and practices for establishing and promoting women's rights, as well as critiquing negative constructions and practices even when the latter are claimed to be Islamic.  In so doing, they empower many of the participants with the knowledge and confidence to challenge the assertion that rights violations in the name of Islam and supporting Sharia, should be ignored, and to work instead towards progressive visions of Muslim laws.

Acknowledgements

To do the work it has done in protecting and promoting women's rights in Muslim laws in Nigeria, BAOBAB has had the support of many, many individuals and organizations.  I would like to publicly acknowledge this, and to recognize the contributions of the following.

All BAOBAB volunteer outreach team members.

All BAOBAB staff, whose commitment and work are par excellence, but in particular those responsible for the programmes I have described above - Hurera Akilu-Atta, Ndidi Ekekwe, Mufuliat Fijabi and the current executive director, Sindi Médar-Gould.

The Board of BAOBAB, who sit voluntarily through hours of meetings, wading through piles of documents, monitoring and advising.

All those Muslim scholars (ulema), judges, lawyers, rights activists and others in Nigeria and outside who generously share their knowledge, expertise, resources and skills in research, policy development, political acumen and/or victim representation including Maryam Isa Wali,  Bukhari Bello, Mallam Mustapha Husseini Ismail, (Muslim scholar), Hauwa Ibrahim (who, on consultancy to BAOBAB, acts as counsel to many of the victims), Idris Ibrahim (counsel for Bariya Ibrahim Magazu), Abdulkadir Imam Ibrahim (counsel for Safiya Husseini), Asifa Qureshi, Kole Shettima, Sanusi Lamido Sanusi as well as numerous others too many to name or who prefer discretion - but are all appreciated.

All Nigerian women's and human rights activists and organizations - especially the members of the Coalition of NGOs for protection of women's rights in secular, religious and  customary laws (over 60 NGOs from every region of Nigeria - including the 'Muslim North'); the National Human Rights Commission; Saudatu Mahdi and the Women's Rights Advancement and Protection Agency (who have taken the lead on Amina Lawal's case - sharing the load,rather than each of us having to develop the lonely endurance of the marathon runner); and the Nigeria office of the International Human Rights Law Group.  This award is also a recognition of the work done by the women's and human rights movement in Nigeria, who have collaborated and worked in different ways to protect women's rights.

International women's and human rights organizations and networks who showed solidarity and supported us in the ways we asked of them for each particular case - particularly the international solidarity network Women Living Under Muslim Laws, Shirkat Gah (Pakistan), the Muslim Women's Research and Action Forum (Sri Lanka), the International Association of Women Judges, the Canadian Council of Muslim Women and Sisters in Islam (Malaysia).

The Federal Ministry of Women's Affairs, various Ministries of Justice and the Office of the Solicitor General.

We appreciate too those who have given and continue to give BAOBAB general support so thanks to all of you - from those who gave big institutional grants, to those who gave personal donations and their support, and other resources (time, access to their books, friends and connections, advice and knowledge).

Most of all, to the women and men, like those in Safiya Husseini's village (who tried to hide Safiya because of their solidarity with her, and their recognition that judgments passed in the name of religious laws are not necessarily just simply because it is claimed they are God's law) and the numerous others who write, email or stop us in the street to let us know they appreciate our work and support it, and to thank us for speaking up.

For myself personally, I note that my first public statements on this issue (on the potential of women's liberation in Islam but the dismal reality in Muslim communities in Nigeria) was in March 1985, and it was followed within weeks by my first death threat.    At first glance it might seem as though not much has changed.  But now, there are so many more women and men speaking up and actively working for change.  That is a glorious difference and I am proud to have contributed to it.

In more than two decades of struggling to actualize visions of women's rights, social justice and democratic development many people have touched my life, as friends, sisters, brothers, mentors, colleagues - supporting, advising, helping (and criticizing too).  They know who they are, and they know, I hope, that I appreciate and value them.

But I would just like to mention.

My mother, who showed me the importance of persistence and endurance - and who is still trying to instill in me the virtue of tact.

My late father, Dr. Abubakar Imam, who taught me to respect principles, rather than the powerful and privileged.

My husband, Akwasi Aidoo, whose support came not only to me personally but as solidarity in our shared visions for a better future - and who has therefore put up cheerfully with incursions of our home, time, energy and resources Without his sympathy and practical help, things would have been a lot more difficult.  Thank you.

Our youngest son, Anta (who thinks that the nursery in BAOBAB is his office), as well the 'big boys', Nana-Yaw and Apay.

Finally, to Rights and Democracy for choosing to honour us and our work, supporting us (especially working with the Women's Programme) and giving us a wider platform to share our work with others
 
Thank you.

Montreal, Canada
December 9, 2002

Ayesha Imam
BAOBAB for Women's Human Rights
232A Muri Okunola Street
P. O. Box 73630
Victoria Island
Lagos, Nigeria
Tel/Fax: +234 1 262-6267
E-mail: baobab@baobabwomen.org