© 2019 - International Centre for Investigative Reporting
Aisha, 16 years old from Bauchi was raped and impregnated by one Abdullahi. The SS2 student whose parents died nine years ago was under the care of her uncle who deserted her after she had become pregnant for suspected rapists. When she filed a complaint at the Bauchi Shariah Commission seeking redress from her rapist, the Shariah Commission mediated on the case and gave Abdullahi 100 lashes.
Upon the conviction, the commission asked Abdullahi to take care of her until she delivers, by giving her N3,000 monthly for upkeep and medicine.
The culprit, unsatisfied with the verdict of the Shariah Commission sued Aisha at a lower Shariah Court where she was surreptitiously remanded for one week for "alleged defamation of character", pending when the shariah court will sentence her.
"It was through an NGO Prison Inmate Development Initiative, PIDI that I was released on bail pending the judgement of the Shari'ah court," she says.
The seemingly perturbed Aisha said her uncle, who at the initial stage of the drama sought mediation later abandoned her in the middle of the case with no money for her to hire a lawyer to defend her.
"What is more frustrating for me is that despite being raped, I continue to face rejection and condemnation from my immediate community and relatives. The Bauchi Shariah Commission also said they will give me 100 lashes when I give birth as punishment for fornication," Aisha weeps as she laments her ordeal.
Aisha is not an exception. The Bauchi State office of the National Human Rights Commission also got a report of a 13-year-old girl who was raped and impregnated by her neighbour at Dandango ward in Bauchi metropolis.
The Commission from its records says the culprit rushed to the Bauchi State Shariah Commission and instituted a case for defamation of character since the Commission has a completely different methodology in determining rape cases.
Unsatisfied with the judgement of the Shariah Commission for punishing the rape victim instead of the perpetrator; her guardian wrote a complaint to the Bauchi State Coordinator of Human Rights Commission.
"The perpetrator runs to Shariah Commission filed for defamation, and we find out that the Commission treat such cases as adultery instead of rape, that means reducing the gravity of the offense" Yachit Suzan Dala, the Bauchi State Coordinator of Human Rights Commission told The ICIR.
Her relatives have abandoned her, leaving the poor woman to care for herself and her unborn baby.
The jurisprudential distinction between Islamic and conventional courts in handling rape cases might have contributed immensely in giving rape suspect save haven within the provision of Islamic Shariah law.
For instance, in Islam, fornication, (defined as consensual sexual intercourse between two unmarried people) and adultery (sex between married person and another who is not the spouse of the other person whom they had intercourse with) are two sins with distinguishable punishments.
In Islamic jurisprudence, the punishment for adultery is stoning to death while fornication attracts 100 lashes—and all the punishments are only carried out when four male witnesses of reputable character testify before a judge that they have seen with their eyes when the fornication or adultery was taking place.
Exploiting the window provided under the Islamic jurisprudence, rape suspects run to Bauchi Shariah Commission and file for defamation of character since their prey hardly provide the four credible witnesses required as enshrined in Islamic jurisprudence.
For instance, in the case of Aisha vs Abdullahi who at the initial stage had conceded to have committed the crime, received 100 lashes at the Commission "only for him to run to a lower shariah court at Kobi in Bauchi metropolis to file for defamation of character", Aisha laments.
The Commission at the initial stage of Aisha's pregnancy mediated the case and found the suspects wanting; evident by the 100 lashes he received, but in a desperate move to evade responsibilities, he instituted a fresh case against his prey, charging her for defamation of character.
Aisha said she received calls from one Usman, who is the Secretary of the Commission, "instructing me not to disclose what happened to anyone, but cooperate with the lower Sharia court and take in good faith any judgment they may deliver against me."
The lower Shariah court will reconvene sitting on July 15, 2020 for continuation of hearing between the impregnated rape victim and the alleged sex predator who instituted a defamatory case against her.
Aisha at the moment says she suffers from triple tragedies: "I'm pregnant for being raped, I'm waiting for 100 lashes from Shariah Commission when I give birth and I'm waiting for another judgement from another court all at the same time."
Yachit Suzan Dala, the Bauchi State Coordinator for National Human Rights Commission in Bauchi corroborate Aisha's claim where rape suspects in the state gets protection from the Shariah Commission.
She said the Commission had instances where rape suspects "usually run to Shariah court or any organisation and file for defamation; and we find out that the court treat such cases as adultery instead of rape, that means reducing the gravity of the offense.
Mrs. Dala gave instances where the Shariah Commission in the state treat rape cased without police investigations.
"We all know rape is a crime, and who is responsible for investigating rape? The police. "So anytime a crime has occurred, and the police did not carry out an investigation, I don't think court will sit on the matter when there has never been an investigation," she added.
Dala cited another case the Commission is currently handling where "Somebody was raped; the community leader had mediated, from the mediation the man admitted and apologised.
"But thereafter took the victim and her family to the Shariah Commission. The Human Rights Commission was at the Shariah Commission, we did not miss wording that the matter was a criminal matter that should go before the police. They agreed and admitted that it was a very serious matter that should be handled by the police."
Mrs. Dala said the people that were running to the Shariah Commission are usually the perpetrators not the victims.
"That means they are running there because they think they will get a little respite there. "When they go to the Shariah Commission, they don't say they raped; rather say they were defamed. That's why they are running there," Mrs. Dala lamented.
Aisha also said the case between her and Abdullahi who allegedly raped and impregnated her was never investigated by the police, a suggestion that the Commission is deciding rape cases without police reports.
The Commission arrests, investigates, tries and issues sentences all at once without recourse to due process and laws guiding its powers, functions and limitations, The ICIR can authoritatively report.
For instance, Aisha narrated how the Commission arrested her violators following a complaint she filed before the Commission; it investigated him, found him wanting but reduces the gravity of his offence to mere fornication and gave him 100 lashes of canes. The Commission awarded Aisha the same measure of punishment.
He said the application of Islamic laws should take consideration of environmental peculiarities, saying; "it is the value of the society that reflects in the law, but in our case we are confused, we are neither there nor here. This is one of the difficulties we have; go to countries govern strictly by Islamic law, you discover that the number of rapes is even low, unlike ours. I am talking of societies that operate pure Islamic law, not hybrid societies that are confused."
He said the Nigerian society is not conducive for the operation of Islamic law.
"Just of recent, I secured the release of someone who had been imprisoned for amputation of leg from Darazo, Adamu Musa Darazo. He has been there since 2012; he spent about 16 years in prison awaiting execution of sentence because the sentence says one of his legs should be amputated and the amputation was not done and so he remained there for 16 years,"Gambo said.
He said under Islamic law, it's only the State Governor that has the powers to assent to the execution of punishment when sentences are issued by Shariah Courts.
"It requires the consent of the governor to execute the sentence whether it is amputation or it is death by hanging," he said.
"What Shariah Commission normally does is that it arrests the accused person, investigates the accused person, tries the accused person and executes the sentence—one institution doing the job of all, which is wrong," he declared.
The lawyer said criminal cases such as rape ought to be investigated by the police before litigations are instituted in the right courts.
"It is the responsibility of the police to arrest an accused person and charge him to the right court,"Gambo added.
The lawyer said he had challenged the Commission in a case involving one Auwal Ibrahim versus the Bauchi State Shariah Commission. It is not a court of law, what the Commission does is the duty of the police. "They can arrest offenders and charge them to court, but a person cannot file a case before Shariah Commission, he can file a complaint," he argued.
Gambo said desperate people who usually want quick justice were the usual people patronizing the Shariah Commission.
"You know it is a principle of law that, justice delayed is justice denied; but justice rushed is justice quashed," he warned.
He also faulted the Commission for reserving 100 lashes for Aisha upon giving birth; "if a person is raped, it means there is no consent and if there is no consent, the victim cannot be punished," he added.
The ICIR investigations also revealed that the revised volume 2 Laws of Bauchi State obtained by this medium shows that the Shariah Commission is acting illegally when it tries and issues sentences. The Commission according to the laws of Bauchi State has 13 basic functions and powers; none of which entailed prosecution and sentencing.
For instance, part of the powers of the Commission as contained in the document includes:
Under the Islamic Shariah law, parents or guardians of a rape survivor are not allowed to stand as witnesses for their daughter in the event of rape, under the English law that is allowed. Both laws are still operational in Bauchi—a situation Gambo described as a "confused system".
For instance, under the Islamic law, the conflation of rape with fornication and or adultery and the need for four reputable witnesses to attest to seeing parties fornicating or committing adultery is a big jurisprudential distinction with the English law—applying the two laws in an environment that is not conducive for one remains a challenge.
Speaking on behalf of the Commission, the state commander of Hisbah (Islamic Police), Ibrahim Musa Yisin said, "the responsibility of the Commission is to ensure there is good moral behavior amongst the people in the state.
He said; "we do mediate to find out the true position of rape cases and then refer them to relevant bodies for further action.
"At times when case of rape is brought here, you find out that the relative of the victim is trying to prevent you from taking further action because they don't want you to publicize their infant or child for fear of what is known to them", Yisin told The ICIR.
He denied that the Commission has been trying and convicting rape suspects; adding, "there is no law that allows the Commission to convict any offender."
When The ICIR cited many cases where the Commission was alleged to have shielded rapists through "defamation" tricks including the recent case between Abdullahi and Aisha, Yisin said "I'm not aware of that".
The criminal code and the penal code for southern and northern states have all provided varying degrees of punishment for those convicted of rape.
For instance, the Penal Code applicable to northern states (of which Bauchi is one) gave a vivid explanation of rape and provides life imprisonment and other lesser punishment for any established case of rape regardless of the age of the victim.
Thus, section 283 states as follows; "Whoever commits rape shall be punished with imprisonment for life or any less term and shall also be liable to fine".
On the other hand, chapter 30 of the criminal code (for the southern states) section 357 defines what constitutes rape, while section 358 provides punishment for same-which is life imprisonment without any option.
An attempt to commit rape alone under section (359) of this law may land someone in 14-year jail term.
The sections (358) read in part: "Any person who commits the offence of rape is liable to imprisonment for life, with or without caning".
359. "Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning".
He said the general societal decay and systems failure persistently hinder rape and pedophile victims from getting "holistic treatment", which he argued was "absolutely necessary" for survivors to heal permanently.
"Punishing the perpetrator is not enough; you see, that is the problem our own society is making. Punishment is not enough.
"You have raped a girl and she is looking at you as an enemy, you sentenced the culprit, she may be comforted temporarily; but her individuality will not allow her to forget her violator.
"That is why I tell you she needs intervention; she needs complete and holistic treatment, because medical examination will only treat physical injuries, but what of her own thinking", he queried.