What if Sharia weren't the enemy? Rethinking international women's rights advocacy on Islamic law.

• Author: Quraishi, Asifa
• Position: Interview

Abstract

For many women's rights activists working internationally, especially those coming from a western context, sharia is believed to be a major obstacle to women's rights. In order to protect women from Muslim religious law, these advocates often position themselves aggressively against so-called sharia legislation and sharia in general. I believe that this approach is counterproductive and ultimately exacerbates, rather than improves, the situation for women living in Muslim-majority countries, in this article, I explain how current global feminist strategies have helped create an unwinnable and unnecessary war: that of sharia vs. women's rights. Drawing on observations incident to my work on the zina (extra-marital sex) laws in Nigeria and Pakistan, I argue for an alternative: women's rights advocates concerned about the situation of Muslim women around the world would do better not to mention Islamic law at all. This would be a major strategy shift, requiring significant restraint on the part of western secular feminist activists, but I believe it is worth it. I explain how, with this shift in approach, internationally-active women's rights advocates might more effectively contribute to securing rights for women in Muslim-majority countries. This shift could also open up a new appreciation for a wider spectrum of feminism, including that coming from a sharia-mindful perspective. In short, I argue for a world of advocacy for women that is nuanced and sophisticated and works with--not against--the reality of sharia in Muslim lives.

INTRODUCTION

In early 2001, I wrote a clemency brief arguing, on Islamic law grounds, that a young Nigerian woman, Bariya Ibrahim Magazu, should not be lashed for the Quranically-defined crime of zina (extramarital sex). (1) A week before the scheduled punishment, while appeals were still pending and before the clemency brief was submitted, the state of Zamfara unexpectedly carried out the lashing of Bariya Magazu, apparently as a direct response to the international pressure that had mobilized to prevent it. (2) A variety of international rights groups had opposed the punishment by, among other things, depicting the zina laws of Nigeria--and Islamic law generally--as anathema to human rights and women's rights in particular, often doing so in a rigid and condemning tone. (3) The approach did not work: in his acceleration of Magazu's punishment, the governor of Zamfam specifically stated that he did so in order to flout these forces opposing Islamic law. (4)

I am concerned about this dynamic. In my years working both as a scholar and activist in the field of Islamic law and women, I have observed that when sharia-based legislation is opposed as contrary to international rights norms, such opposition often triggers an almost knee-jerk reaction among many Muslims to fiercely defend these laws as if they were defending their religion itself against a crusade-like attack. This can occur even when the laws themselves contradict established Islamic legal doctrine. (5) Thus, it is common to see governments of Muslim-majority countries making sharia-based reservations to international rights documents such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (6) Influential Muslim leaders and scholars have been publicly disdainful of international conferences devoted to women's rights, such as the United Nations World Conference on Women, (7) and at home, islamically-oriented nongovernmental organizations (NGOs) and political parties in Muslim-majority countries often lobby against women's rights activism in their own countries as if such activism were an attack on Islam. In response, those involved in global women's rights work often advocate that international rights norms should always trump sharia-based rules whenever a conflict appears.

I have observed that feminist advocacy strategies that situate themselves in opposition to sharia ultimately contribute to the presumed existence of this false dichotomy: one can be either "pro-Islam" or "pro-women," but not both. I believe that this imagined opposition between women's rights and sharia is not only unnecessary, but also counterproductive for both feminist actors (8) and Islamically-minded political activists. (9) I suggest that there is a better strategy for transnational feminist work for Muslim women. But my proposal requires a significant paradigm shift. Specifically, I ask internationally-active women's rights advocates, especially those in or from the west, (10) to eliminate any reference to Islamic law (positive or negative) from their advocacy and international pressure campaigns. I make this request both as a feminist and as a Muslim. In my observation, the presumed conflict between women's rights and sharia may have ultimately brought more harm than good to the women (like Bariya Magazu) that women's rights advocates seek to help. (11) I believe that a simple but serious change in the way these advocates address Islamic law would go a long way toward breaking this destructive pattern.

In this article, I hope to explain why this change is important. Part I will summarize some high profile zina prosecutions in Nigeria, especially highlighting the perspective of the local lawyers litigating these cases. These stories will illustrate how the current anti-sharia strategies have harmed the legal defenses of women being prosecuted for zina. In Part II, I will attempt to clarify what sharia is, for those readers who may not know much about it. As a further illustration, Part H includes a discussion of sharia-based women's rights advocacy in a variety of forms, including the use of strategies different from those familiar to secular feminists. Part III will give some historical context to the heated nature of western attitudes about sharia today, especially regarding women, by surveying the very old colonialist roots of the feminism vs. Islam paradigm. In contrast to all this, I present my proposal in Part IV. Here, I explain why no comment about sharia from international women's rights advocates would be better than the anti-sharia positions currently taken, given the charged political and social climate in which all activists for Muslim women's rights must operate. I end with a footnote on the veil, requesting that both sides let go of their overuse of and reliance upon this largely misleading symbol.

1. Why Bariya Got Lashed, and Other Stories

   Over the last several decades, many countries with large Muslim populations have added provisions to their criminal codes derived from Islamic criminal law. (12) The new criminal codes criminalize some or all of the hudood crimes (crimes specifically addressed in the Quran), the most famous of these being zina (extra-marital sex). The Quran establishes zina as a punishable crime, but simultaneously creates a very high standard of proof for zina prosecutions: four eyewitnesses to the act of sexual intercourse. (13) All but one of the many schools of Islamic law (14) require four witnesses as the exclusive method of proving a zina case in court, making it virtually impossible for any case to actually be prosecuted. The Maliki school, however, allows unwed pregnancy to constitute a prima facie case for zina. (15) This Maliki rule creates an unfair situation in which a woman can be prosecuted for zina merely for being pregnant and unmarried, while her male sexual partner can escape investigation entirely. The Maliki school dominates in Africa, making this minority position relevant in Nigeria in a different way than it is in, say, Pakistan, where the population is largely Hanafi.

   The hudood laws in Pakistan and Nigeria have received widespread international attention due to some highly-publicized zina prosecutions in those countries. The case of Bariya Ibrahim Magazu, a pregnant unmarried teenager (16) in Nigeria's Zamfara state, was the first of these high-profile cases. The facts are as follows: Sometime in 1999, local police noticed that young Bariya Magazu was pregnant and reported her to authorities in her village. A zina prosecution soon followed. Bariya's defense was that she was raped--that she had been coerced into having sex with three male acquaintances of her father. (17) The judge did not believe her. In September of 2000, she was convicted of zina and sentenced to 100 lashes by the Higher Sharia Court of Tsafe, in Zamfara Province. (18) Execution of the punishment was scheduled for January 27, 2001 (following the Islamic legal waiting period of at least forty days after the birth of the baby, which in this case was mid-December, 2000). Although Bariya Magazu was initially denied a right of appeal, her lawyers eventually arranged leave to appeal to the Upper Sharia Court in Gusau on January 9, 2001, with assurances from officials that the flogging would be postponed indefinitely pending the result of that appeal. (19)

   Meanwhile, the case sparked international surprise and condemnation, especially in the west, and for some reason most especially in Canada. A wide variety of organizations ranging from Amnesty International and the Feminist Majority to the Canadian Presbyterian Church appealed to their members to write to Nigerian authorities to save Bariya Magazu from this sentence. (20) Canadian press attention was especially intense, (21) and the Canadian government itself made several official requests to Nigeria in the matter. (22) Most of the international appeals centered on the premise that the sentence conflicted with international human rights norms, most especially prohibitions on corporal punishment and torture. For example, the Canadian High Commissioner to Nigeria, Ian Ferguson, filed a formal complaint with the Nigerian government, asserting that "corporal punishment on a young woman who is seventeen would be an abuse of international human rights standards." (23) Many emphasized that flogging itself is inherently...