By Limeng Sun
This blog post examines Amina Lawal v. State, a criminal case adjudicated by the Sharī‘a Court of Appeal of Katsina State, Nigeria. The post focuses on the first issue on which the Sharī‘a appellate court based its rulings—the validity of confessions and the effects of a retraction in a zinā (adultery/fornication) conviction. The court cited traditional sharī‘a sources in abundance to support its ruling, giving rise to a variety of interpretive issues in Islamic law.
Amina Lawal v. State, Shari’a C.A. of Katsina, Nigeria (Aug. 21, 2002), SHARIAsource (Philip Ostien ed., Aliyu M. Yawuri & Samaila A. Mohammed trans., Sep. 11, 2017), https://beta.shariasource.com/documents/2904.
In March 2002, Amina Lawal, a woman living in Northern Nigeria, gave birth to a child out of wedlock and was charged with zinā under the Sharī‘a Penal Code law. The trial court convicted Amina Lawal based on two grounds: (1) that she had confessed to having had illegal sexual intercourse with a man; and (2) the birth of her baby out of wedlock is conclusive evidence of zinā. The lower court sentenced Amina Lawal to death by stoning.
Amina Lawal appealed the decision to the Sharī‘a Court of Appeal, which vacated her zinā conviction. The appellate court held that: (1) Amina Lawal retracted her confession that was made before the trial court, and a retracted confession is an insufficient ground for a zinā conviction; and (2) a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband under the “sleeping embryo” doctrine, and childbirth does not constitute proof of zinā under such circumstances. With regard to the first issue, the appellate court carefully considered the validity of her confession. The court subscribed to the view that a confession to a crime as serious as zinā should not be taken lightly, and a retraction should be given full effect to nullify the confession.
Trial Court Ruling
The trial court based Amina Lawal’s conviction and sentencing on three Islamic law sources: (1) verse 17:32 in Qur’ān: “And come not near to unlawful sex. [Indeed], it is an immoral sin and an evil way[;]” (2) the passage of Risāla, a legal treatise written by al-Shāfi‘ī, stating that “[a] muḥṣina who commits zinā is to be stoned until she is dead[;]” and (3) a commandment of the Prophet from Arbaʿūna ḥadīth that allowed capital punishment in three cases—the adulterer, a life for a life, and the renegade Muslim who abandons the Muslim community. Setting aside the merits of the ruling, the trial court employed a fairly standard interpretive procedure in determining sentencing. First, the court relied on a verse in the Qur’ān to establish the illegality of zinā. The verse used a prohibitive form of the verb, which indicates “forbiddenness.” Combined with the Qurʾānic clause that characterizes zinā as “an immoral sin and an evil way,” there seems to leave no doubt that the conduct of zinā is prohibited and not merely discouraged. Meanwhile, the verse did not prescribe the type of punishment for the crime of zinā, so the court had to invoke other authorities in Islamic law, including the legal treatise and the ḥadīth, to fill the gap. Significantly, the trial court’s ruling almost exclusively focused on the consequence and punishment of zinā while neglecting the legal and procedural prerequisites necessary to establish zinā, including the validity of confessions. The trial court’s omission was addressed at length by the appellate court and formed the basis of the higher court’s reversal.
Appellate Court Ruling
First, the appellate court questioned whether Amina Lawal’s single confession at the trial court was a sufficient basis for her conviction. The appellate court ruled that such conviction is “contrary to the teaching of the Holy Prophet[,]” citing a ḥadīth in Bulūgh al-marām and al-Fiqh ‘alā al-madhāhib al-arbaʿa, a legal treatise summarizing the jurisprudence of the Four Sunnī Schools, which told the following story of the Prophet:
Māʿiz confessed to zinā four times to the Holy Prophet: the Holy Prophet asked him four times before he inquired whether he was insane. He further asked Māʿiz whether he had contracted a previous marriage. It was after Māʿiz answered in the affirmative that the Holy Prophet ordered him to be stoned to death. When Māʿiz felt the pain when he was being stoned, he ran away. Some people pursued him and overtook him. He asked that he should be taken to the Holy Prophet; they refused and proceeded to stone him to death. When they related these events to the Holy Prophet, he was annoyed and asked why they did not let Māʿiz be.
The court here did not elaborate on why conviction based on a single confession contradicts the Prophet’s teaching. Nor did the court determine that repeating the confession four times is sufficient for a conviction to be valid. Instead, the court seemed to have read the story as to suggest that confession to a crime as serious as zinā should not be taken lightly, and a confessant should be afforded some “procedural safeguards,” such as an inquiry into the confessant’s mental state, before a confession takes effect.
Second, the court went on to discuss the effect of retraction on the confession’s validity. The State argued that since Amina Lawal retracted her confession after the trial court’s sentencing, “Amina Lawal had no right to retract her confession; it asked why she did not retract it before the [trial court.]” The court rejected this contention; instead, it took an expansive view of the effects of retraction.
The court cited various Islamic legal authorities to support this view, including Fiqh al-Sunna, a legal treatise by contemporary jurist Sayyid Sābiq, which instructs “[i]f the confession relates to offen[s]es involving the rights of Allāh, for example[,] zinā and the consumption of alcohol, it is permissible to retract it, this is because the Holy Prophet was reported to have said you should not inflict the zinā punishment in cases of doubt.” Extrapolating from the passage, the court here seeks to highlight the idea that in serious cases such as zinā, the retraction of a confession gives rise to an element of doubt, which should be resolved in favor of the confessant.
The court further cited al-Fiqh ‘alā al-madhāhib al-arbaʿa, which states that “[w]here somebody confesses, whether a man or a woman, and he or she later on retracts the confession, such retraction of the man or woman shall be accepted and he or she shall not be punished.” Relying on this passage, the court authorized a wide scope for the effects of retraction, concluding that “if a person is convicted for an offen[s]e, he can retract his confession before the sentence is executed and such retraction shall be accepted and he shall not be punished.”
The minority opinion in this case raised a different question regarding the effects of retraction: “it is never stated in these authorities that counsel can retract the confession on behalf of his client. Therefore[,] Amina Lawal did not retract her confession since she did not personally utter the retraction.” The minority opinion believes there is a lack of legal authority in the assumption that a defendant’s counsel could validly make the retraction on behalf of the client. The minority opinion here seeks to discount the prevalent modern practice that criminal defendants, especially in serious cases, are frequently represented by counsel. The minority opinion’s refusal to view the defendant’s counsel as an extension of the defendant herself indeed reflects a rigid and inflexible approach in interpreting Islamic law in the modern context.
 Amina Lawal v. State, Shari’a C.A. of Katsina, Nigeria (Aug. 21, 2002), SHARIAsource (Philip Ostien ed., Aliyu M. Yawuri & Samaila A. Mohammed trans., Sep. 11, 2017), https://beta.shariasource.com/documents/2904 [hereinafter Amina Lawal Appeal].
 Id. at 84–85.
 Id. at 102–06.
 State v. Amina Lawal, Bakori Shari’a Ct., Katsina, Nigeria 55–56 (Jan. 15, 2002), SHARIAsource (Philip Ostien ed., Aliyu M. Yawuri & Samaila A. Mohammed trans., Sep. 11, 2017), https://beta.shariasource.com/documents/2902 [hereinafter Amina Lawal Trial].
 Id. at 56 (citations omitted).
 The precise Qur’ānic verse in Arabic is: وَلَا تَقْرَبُوا الزِّنَا ۖ إِنَّهُ كَانَ فَاحِشَةً وَسَاءَ سَبِيلًا
See Muhammad Baqir as-Sadr, Lessons in Islamic Jurisprudence 84–86 (Roy P. Mottahedeh trans., 2003) (discussing the functions of prohibitive forms of verbs in the Qur’ānic context).
 See Amina Lawal Trial, supra note 4, at 56 (citations omitted).
 See infra “Appellate Court Ruling.”
 See Amina Lawal Appeal, supra note 1, at 104.
 See id.
 Id. at 105.
 See id.
 See id.
 Id. (emphasis added).
 Id. at 117.