Sharia Court ruling violates human rights

Document Type: Open Letter
Date: 2002

In a letter to President Obsanjo, the ICJ expressed its grave concern at the Sharia court of appeal upholding the death sentence by stoning of Amina Lawal for engaging in sexual relations outside of marriage which have resulted in a child.

The ICJ points out that this miscarriage of justice violates the fundamental human rights of Amina Lawal and her child.

22 August 2002

His Excellency Olusegun Obasanjo,
President of the Republic of Nigeria
The Presidency,
Federal Secretariat,
Phase II, Shehu Shagari Way,Abuja
Fax: 234 9 523 21 36 (press office)

Dear Sir,

The International Commission of Jurists (ICJ) consists of jurists who represent all regions and legal systems in the world working to uphold the Rule of Law and the legal protection of human rights.

We are writing to you to express our grave concern regarding the 19 August ruling by a Sharia court of appeal in Funtua to uphold the death by stoning penalty of Amina Lawal for engaging in sexual relations outside of marriage which have resulted in a child. The child is now reportedly eight months old.

We respectfully urge your Government to intervene in this gross miscarriage of justice which violates the fundamental human rights of a Nigerian citizen. These fundamental values are protected by the 1999 Nigerian Constitution which guarantees the right to life (Article 33) and the right to dignity of the human person (Article 34).

Furthermore, Nigeria is a State Party to several international human rights treaties which guarantee the right to life and the right to be free from torture. Pursuant to Article 18 (d) of the Nigerian Constitution, Nigeria is obligated to demonstrate “respect for international law and treaty obligations …”

Therefore, to comply with international and national law, your Government must adhere to international treaties to which it is a State Party such as the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the Convention on the Elimination of Discrimination against Women, the Convention on the Rights of the Child, and the African Charter on Human and Peoples Rights.

We would like to respectfully remind you that the conduct of the Sharia court is directly attributable to your Government as indicated in Article 6 of the Nigerian Constitution which states that the “Judicial powers of the Federation shall be vested in the …(g) Sharia Court of Appeal of a State. In this regard, we would also like to emphasize that the International Law Commission’s (ILC), draft Articles on Responsibility of States for internationally wrongful acts adopted at its fifty-third session in 2001 states its view that under international customary law,

Art. 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Thus, the conduct of the Sharia court – a judicial state organ – is imputed to your Government; as such, your Government is legally obligated to take measures to prevent the violations of human rights at the hands of these courts.

The Convention Against Torture, which Nigeria ratified last year requires that a State Party “shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction and that “An order from a superior officer or a public authority may not be invoked as a justification of torture”, (Art. 2.1 and 2.3). Death by stoning, a slow and painful death, clearly constitutes torture as defined by the Convention Against Torture to be:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as…punishing him for an act he …is suspected for having committed.when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, (Art. 1).

Furthermore, the International Covenant on Civil and Political Rights to which Nigeria acceded in 1993 states that, “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”, (Art. 7) and that the death penalty must be limited to the “most serious crimes” (Art. 6).

Another important human rights treaty, the Convention on the Elimination of Discrimination against Women, ratified by your country in 1985, requires that State Parties, “establish legal protection of the rights of women on an equal basis with men and ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination,” Art. 2. Rather than protecting women, as required under this Convention, the Sharia court of appeal has gone out of its way to discriminate against Amina Lawal by upholding her torturous death sentence.

By rendering the death by stoning penalty on Amina Lawal, the Sharia court is depriving her eight-month old child of a mother. This, too, is in contravention of international human rights standards. Pursuant to the Convention on the Rights of the Child which is by far the treaty with the highest number of ratifications and which Nigeria ratified in 1990, the State must put the child’s “best interests” first. The Preamble to this instrument urges State Parties to,

Consider that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance…

Furthermore, Article 9 states that,

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to juridical review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

It is in no way in the best interests of Amina Lawal’s infant to be separated from his mother.

Furthermore, the aforementioned International Covenant on Civil and Political Rights guarantees the right to protection of the family, “The family is the natural and fundamental group unit of society and is entitled to protection by society and State (Art. 23). “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the State (Art. 24).

We would also like to draw your attention to the African Charter on Human and Peoples’ Rights which upholds the sanctity of the family. Article 18 states,

(1) The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral health.
(3) The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.

Nigeria ratified the African Charter on Human and Peoples’ Rights in 1983.

As the above international human rights treaties demonstrate, it is legally incumbent upon your Government to prevent the death of Amina Lawal and protect this vulnerable woman and her infant. Death by stoning of young, single mothers should have no place in a country where there is respect for the most basic human rights principles and the Rule of Law. The ICJ offers its legal expertise to your Government in helping to ensure that such gross miscarriage of justice is never repeated.

Yours faithfully,

Louise Doswald-Beck

His Excellency Kanu Godwin Agabi,
Minister of Justice, Ministry of Justice,
New Federal Secretariat complex Shehu Shagari Way,
Abuja, Federal Capital Territory, Nigeria;
Fax: 234 9 523 52 08

Minister Alhaji Abdullahi Ibrahim
Minister of Justice and Attorney General
New Federal Secretariat Building
10th Floor, Federal Secretariat
Block 1, Wing 1-B
Shehu Shagari Way
Abuja, Federal Capital Territory, Nigeria
Fax: c/o Ministry of Foreign Affairs 234 9 523 0394/0210

His Excellency Pius Ikpefuan Ayewoh
Ambassador, Permanent Mission of the Federal Republic of Nigeria
to the United Nations
Rue Richard Wagner 1
1211 Genève 2
Fax: 022 734 10 53

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