STONING UNDER THE SYARIAH PENAL CODE: ANALYSIS & REVIEW – IRANIAN AND NIGERIAN PENAL CODE: PART 1

Recently, the issue of stoning to death (rajm) as a valid punishment in Islam came up in my discussions with some friends. I thought I would share a paper I presented as part of my course requirement in Islamic Criminal Law when I did my masters in UIAM. Please read it critically.

1.                  Introduction

The punishment of stoning to death (rajm) has a long tradition in Islam. After Muhammad's death, the first generation of Muslim legal scholars included adultery, or zina, as one of the six major offenses (hudud) in Islamic law for which the penalty is fixed by God in the Quran and whose application is the right of God (haqq Allah). The Iranian Penal Code and the Nigerian Shariah Penal Code, for example, has included this method of punishment.

This is an important area for analysis because of two main reasons:

(a)              Allah has clearly ordained in the Quran that a Muslim shall only judge according to what Allah has revealed and on nothing else which may be contradictory to the clear injunctions of Allah’s commandments therein[1].

            “Whoever does not judge by what Allah revealed, those are the zalimoon/oppressors”.

(b)              The punishment of rajm is of a “drastic nature” of finality in the sense that it terminates the life of the offender that one has to be absolutely certain that this is indeed the punishment prescribed by Allah. This is because a Muslim is clearly forbidden to terminate anyone’s life except with ‘just cause’.

 “Nor take life - which God has made sacred - except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand qisas or to forgive): but let him nor exceed bounds in the matter of taking life; for he is helped (by the Law)[2].”

This study hopes to examine the basis of the stoning punishment in the Shariah, the Quran and the Sunnah. It also hopes to examine some of the provisions of the Iranian and Nigerian Penal Code relating to the offences for which stoning is prescribed.

2.                  Punishment of Stoning  under the Shariah

           

Adultery committed by a married man or woman is punishable by rajm, which mean execution by stoning.

Abdul Qadir Oudah Shaheed[3] writes that “But all the sects of the Ummah with the exception of the Kharijees are agreed on rajm, inasmuch as the Prophet (SAW) enjoined rajm. After him, there was consensus among the companions on this punishment. An oft-quoted tradition in this context is as follows: ‘Killing of a Muslim is lawful for one of three acts: infidelity after embracing Islam, adultery after marriage and murder of anyone without any reason’.

Abdul Kadir Qudah Shaheed further records a tradition where the Holy Prophet allegedly ordered the adulterer and adulteress named Ma’iz and Chamida when the woman was guilty of adultery with her servant to be stoned to death. However, he had failed to go further to analyze or at least rationalize how this could have been so in the light of Q24:2 and Q4:25 and he simply concludes that  “Thus both the edict and practice of the Holy Prophet (saw) bear testimony to the punishment of rajm”. If both the woman and her servant had been stoned to death, does this mean that the Prophet (pbuh) had departed (may Allah forbid) from the clear injunction of Q4:25?

It would appear odd that the Prophet (Allah forbid) would have pronounced the same punishment for the woman and for her servant in the light of Q4:25.  It is clear from the Quran that even the Prophet does not have the power nor did the Prophet ever depart from the letter of the Quran[4].  This is yet another evidence of the divinity of the Quran free from human corruption.

Under the Shariah, distinction is made between married and unmarried offenders in determining the nature of the punishment for adultery. Generally, for unmarried offenders, the Quranic punishment of 100 lashes while for married offenders, the punishment of rajm sourced from the alleged sunnah of the Prophet (pbuh) is meted out (This is discussed further under section 3 of this study).

All the jurists agree that sodomy (Liwat) is a sexual offence but differs in their punishment. According to Imam Abu Hanifa, the act of sodomy does not amount to adultery and therefore there is not punishment by hudud to be given to the offender except ta’zeer. Imam Malik’s view is that the hudud punishment is applicable whether married or not, in other words, stoning to death[5].

Another shariah offence for which stoning is prescribed by some jurists is the offence of bestiality. According to Imams Malik, Abu Hanifa and Zahir, only Ta’azir shall be applied to the individual guilty of bestiality and not the hudud punishment. However, Imams Hanbal and Shafii hold that hudud punishment of stoning to death should be applied on the individual and the animal which was the subject of bestiality should also be killed. The more preferable view is that held by other jurists that only an individual can be punished and not an animal since it does not have a guilty mind[6].

3.                  Stoning under the Quran and Sunnah

            In this section, I propose to consider the penalty of stoning in the     Sunnah and then proceed to consider the same in the Quran.

            3.1 Stoning in the Sunnah

                  The basis for the punishment of stoning can be found in some of the                              reported hadiths as follows:  

                 

                  (a) 'Ubada b. as-Samit reported: "Allah's Messenger (may peace be upon him) as saying: Receive (teaching) from me, receive (teaching) from me. Allah has ordained a way for those (women). When an unmarried male commits adultery with an unmarried female (they should receive) one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death.  (Translation of Sahih Muslim, Book 17, The Book Pertaining to Punishments Prescribed by Islam (Kitab Al-Hudud), Number 4191)”

                        In the above hadiths, for the married adulterer and adulterers, they shall receive both the Quranic punishment of 100 lashes and the ‘sunnah’ punishment of stoning to death.

                  (b)  Jabir b. Samura reported: "As he was being brought to Allah's Apostle (may peace be upon him) I saw Ma'iz b. Malik-a short-statured person with strong sinews, having no cloak around him. He bore witness against his own self four times that he had committed adultery, whereupon Allah's Messenger (may peace be upon him) said: Perhaps (you kissed her or embraced her). He said: No. by God, one deviating (from the path of virtue) has committed adultery. He then got him stoned (to death), and then delivered the address: Behold, as we set out for Jihad in the cause of Allah, one of you lagged behind and shrieked like the bleating of a male goat, and gave a small quantity of milk. By Allah, in case I get hold of him, I shall certainly punish him.   (Translation of Sahih Muslim, Book 17, The Book Pertaining to Punishments Prescribed by Islam (Kitab Al-Hudud), Number 4198)"

                  (c)  Narrated Abu Huraira and Zaid bin Khalid: "Two men had a dispute in the presence of Allah's Apostle. One of them said, "Judge us according to Allah's Laws." The other who was more wise said, "Yes, Allah's Apostle, judge us according to Allah's Laws and allow me to speak (first)" The Prophet said to him, 'Speak " He said, "My son was a laborer for this man, and he committed illegal sexual intercourse with his wife, and the people told me that my son should be stoned to death, but I have given one-hundred sheep and a slave girl as a ransom (expiation) for my son's sin. Then I asked the religious learned people (about It), and they told me that my son should he flogged one-hundred stripes and should be exiled for one year, and only the wife of this man should be stoned to death " Allah's Apostle said, "By Him in Whose Hand my soul is, I will judge you according to Allah's Laws: O man, as for your sheep and slave girl, they are to be returned to you." Then the Prophet had the man's son flogged one hundred stripes and exiled for one year, and ordered Unais Al-Aslami to go to the wife of the other man, and if she confessed, stone her to death. She confessed and was stoned to death.  (Translation of Sahih Bukhari, Punishment of Disbelievers at War with Allah and His Apostle, Volume 8, Book 82, Number 826)"

                  (d) Narrated Ash-Shaibani: "I asked 'Abdullah bin Abi 'Aufa about the Rajam (stoning somebody to death for committing illegal sexual intercourse). He replied, 'The Prophet carried out the penalty of Rajam (stoning to death),' I asked, 'Was that before or after the revelation of Surat-an-Nur? (Noble Verse 24:2)' He replied, 'I do not know.'  (Translation of Sahih Bukhari, Punishment of Disbelievers at War with Allah and His Apostle, Volume 8, Book 82, Number 824)"

                        This hadith is interesting because if one is uncertain whether the stoning punishment was carried out before or after Q24:2, then, arguably, it would suffice to apply the Quranic punishment for all cases of adultery, whether married or unmarried.

                  (e) “Umar said:  I am afraid that after a long time has passed, people may say: ‘We do not find the verses of rajm (stoning to death) in the Book of Allah’. And consequently they may go astray by leaving out the obligation that Allah has revealed. Lo! I confirm that the penalty of rajm be inflicted on him who commits illegal sexual intercourse if he is already married and the crime is proved by witnesses or pregnancy or confession” (Al-Bukhari, Kitab Al-Hudud)

                        How was it possible that something extremely precious such as Allah’s verses ever got lost? Did Allah not promise that “We have, without doubt, sent down the Message; and We will assuredly guard it”?[7]

                        Professor Mohammad Hashim Kamali[8] opinies that the above hadith provides an example of naskh al-tilawah ie that the passage prescribing the rajm punishment was part of the Quran but does not appear in the mushaf.  This hadith therefore causes a severe problem because it is part of the controversial al-naskh al-mansukh doctrine. However, it will not be possible to discuss the doctrine and its problems in this paper.

                        It is important that I disclose that I have not personally verified the authenticity or otherwise of the hadiths that I have quoted above and I have merely reproduced them from the textbooks and sources that are listed in the bibliography of this research. Thus I am unqualified in this research from making any comments on the authenticity or otherwise of these hadiths and hence I refrain from so doing.

---

[1] Quran 5:45; see also Q4:105,  Q5:47 to 50;

[2] Quran 17:33

[3] Abdul Qadir Qudah, Criminal Law of Islam Vol. III, International Islamic Publishers (Pvt) Ltd, Karachi, 1990, page 36 -37

[4] See Quran 69:43 to 49

[5] Abdur Rahman I.Doi, Shariah The Islamic Law, Ta-ha Publishers Ltd, London, 1984 at page242 to 243

[6] Abdur Rahman I.Doi, Shariah The Islamic Law, Ta-ha Publishers Ltd, London, 1984 at page 243

[7] Q15:9

[8] Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, 2^nd revised Edition, Kuala Lumpur: Ilmiah Publishres, 2000 at page 157

NEXT:      PART 2:     3.2 Stoning in the Quran.

PEACE !