Sharia law generally advocates for equality between men and women.755
Amnesty International described Sharia as emphasising the equality between men and women, and that there was therefore, no superiority in the spiritual
748Evans, M. D., Murray, R. H. The African Charter on Human and Peoples’ Rights. Cambridge
University Press. 2008.
749Sylvia Tamale. ‘The right to culture and the culture of rights: a critical perspective on women’s
sexual rights in Africa’ (2008) 16(1) Feminist Legal Studies 47.
750 Ibid.
751 Obilade A. O. 1979 The Nigerian Legal system. Ibadan: Spectrum Books Ltd.
752Karibi-Whyte, A. G. 1993, History and sources of Nigerian criminal law / A. G. Karibi-Whyte
Spectrum Law Publishing Ibadan, Nigeria.
753Obilade A. O. 1979. The Nigerian Legal system. Customary Law, Social Development and
Administration of Justice in Nigeria. Beijing Law Review, Vol.7 No.4, December 30, 2016.
754Okonkwo and Naish on Criminal Law in Nigeria. Spectrum book. 1990. 2nd. Ibadan 755 Ibid.
sense between men and women;756 however, this does not apply in practice. The
Quran, however further communicates that women and men have the same rights as anticipated, but the man stands above women.757
The different interpretations of Sharia depend upon the school of Islamic jurisprudence being practised, the custom, and the country.758 In most Muslim-
majority societies, scholars have argued against the disparity between practice and what the Quran says on women’s rights, which reveals considerably reduced, inconsistent, contradictory, and conservative ideas of gender roles. A Muslim woman, according to the Quran, is bound by Sharia primarily, even in places where other laws exist or are in conflict with Sharia.759 Islam, as with other
religions, condemns rape as a social, violent crime.760 The religion associates an
increase in crime rate with a decline in morals and a deterioration of religious values. Islam prohibits all kinds of crimes, including sexual abuses and rape.761
However, the law contradicts itself on the criteria expected for victims to prove rape in court in order for offenders to be prosecuted.
The law differentiates the crime of rape from adultery or fornication, which involve consensual agreement on sexual acts, and is different from prostitution, where sex is paid for.762 The Quran further views rape as an attempt to threaten a
weaker person to accept unwilling sexual advances that are highly condemned by Islam.763 It emphasises sex in the quotes below:
756Amnesty International. How Sharia law punishes rape women. Rape victim sentenced to 200
lashes and six months in jail. November 2007.
757Noble Quran. 4:1,7:189. 42:11 758Noble Quran. 2: 228 759 Ibid. 760 Supra 808 761 Supra 807 762 Noble Quran. 2: 228. 763 Ibid.
‘You shall maintain chastity, not committing adultery, nor taking secret lovers… anyone who rejects faith, all his work will be in vain and in the hereafter, he will be with losers.’764
‘Tell the believing men that they shall subdue their eyes and not stare at the women and to maintain chastity; this is purer for them and God is fully cognisant of everything they do.’765
‘Tell the believing women to subdue their eyes and maintain their chastity.’
These quotes indicate that the Quran condemns sexual crimes of rape along with oppression and refers to oppression as ‘worse than murder.’766
‘You shall not force your girl to commit prostitution seeking material things of this world. If anyone forces them, the God seeing that they are forced forgives them and is merciful.’
The above quote highlights that the Quran perceives rape as a hideous and most awful crime.767 However, despite the facts that the Quran condemns rape as a
crime, it stringent conditions to prove rape contradict this abhorrence. They are such that it is mostly impossible for a rape victim under the Islamic law to meet the set criteria unless the rapist decides to confess.768 Feminist Islamic scholars
have argued on the rigidity of Islamic law. The challenges encountered by women include the difficult task of providing evidence, such as four male witnesses to the crime (i.e. penetration), as required in Sharia.
764 Noble Quran. 4:1, 7:189. 42:11 765‘Quran 5:5’ 766‘Quran 24:30’ 767 Ibid. 768 Supra
Regrettably, this law contradicts itself in practice. For example, married women who are rape victims are deemed to have committed adultery. According to the Quran, their testimony is worth half of that of a man in court.769 If the victim cannot
provide four credible male witnesses, it is assumed that the rape did not occur.770
Also, the Quran asserts that there is no rape in marriage.
‘Your wives are as a tilth unto you. So, approach your tilth as ye will for there is no such thing as rape in marriage as a man is permitted unrestricted sexual access to his wife.’771
On the other hand, Bukhari 5:59,462, highlights a case where three witnesses corroborated an incident of rape. However, it was rejected based on the arbitrary rule that four witnesses are required to establish rape: ‘Zina is not confirmed
except the accused admits or a testimony of four trustworthy men however not the testimony of any woman.’772
Most rape incidences occur in a solitary environment with no witnesses, unless in the case of gang rape. Therefore, victims are left without any other options to prove the crime of rape. In addition, under Islamic law, the rape of a non-Muslim woman is not illegal. On the other hand, Muslim women are not fully protected due to the challenging demands of establishing the crime of rape.773 The Boko
Haram Islamic sect in Nigeria operate under this ideology. They believe rape of Christian women is a means of punishing the unbelievers, therefore all non- Muslim women are trophies to be grasped as a reward.
769 Quran 24:4, 24:13.
770‘Quran 2:282. 771‘Quran 24:4, 24:13. 772 Ibid.
773Julie Norman. ‘“Rape Law in Islamic Societies” CSID 6th Annual Conference ‘CSID
“Democracy and Development: Challenges for the Islamic World” Washington, DC - April 22 - 23, 2005 “Rape Law in Islamic Societies: Theory, Application and the Potential for Reform.
In a similar occasion, Julie Norman further affirmed that it was impossible for an accused to violate a victim in the presence of trustworthy and credible men.774
The law was, therefore, creating an excuse for sexual predators to evade prosecution. Equally, this study identifies that Islamic law does not accept forensic evidence such as DNA; thus a woman who cannot provide the required witnesses are punished or stoned, while the accused escape prosecution since they will never admit to rape crimes.775
The requirement for establishing the crime of rape under Sharia is for victims to prove, beyond reasonable doubt, the act of rape perpetrated against them. This must conform to the set criteria under Islamic law. The proof of Zina (fornication),
adultery, or Zina Bil-Jabr (rape) liable to the Hadd (corporal or capital) punishment
including:
‘That the accused makes a confession, the victim shall produce at least four trustworthy adult male Muslims as witnesses.776
Punishment will take place when Zina or rape has been proven by witnesses.777
Sharia law rejects the witness of women.’778
Islamic law’s inadmissibility of evidence from women on the basis of their weakness is incompatible with modern law and expectations.779 Proof of rape is
virtually impossible for victims to establish in court, where circumstantial evidence
774 Ibid.
775 Supra 776 Ibid. 777 Supra 988
778Codified Islamic Law Volume 1 Law#133.
779Hanafi Law-Page 176, 353, Shafi’i Law- page 638 Law#o.24.9, Criminal Law in Islam and the
Muslim World –page 251, The Penal Law of Islam – Kazi Publications Lahore- page 44, 45, Tafsir of Translation of the Qura’an by Muhiuddin Khan pages 239 and 928.
is not admissible.780 In addition, admitting to sex outside marriage in the Islamic
religion results in the penalty of stoning to death on the part of the victim.781
Conversely, the rapist has only to deny the crime to be set free, because no forensic evidence is acceptable to establish the crime of rape.782 A 13-year-old
girl in Somalia (Aisha Ibrahim Duhulow) was stoned to death in 2008 for having reported she was gang-raped by Al-Shabaab jihadists.783 Under Sharia, the act
of accusing her rapists had exposed her to counter-claims of having sex outside marriage. This act condemned her to death while the rapists escaped punishment.784
Another scenario of unjust treatment of a rape victim under Sharia was an Afghan family who had to murder their daughter (honour killing) for being a rape victim.785
This further proves that, although Sharia strongly prohibits rape, it is virtually impossible for victims to obtain justice with the current set of guidelines under Islamic law.786 Therefore, there is need for reform and review of laws and their
set criteria for the prosecution of rape as a crime.