4. Examination of the Shariah Position in Iranian and Nigerian Penal Code
(a) Zamfara State of Nigeria Shariah Penal Code, January 000 (hereinafter referred to as the “Nigerian Penal Code”)
According to the Nigerian Penal Code, the punishment of stoning to death is provided for married persons for the offences of zina (section 127), rape (section 129), sodomy (section 131), and incest (section 133). However, for the offence of lesbianism (section 135), the punishment provided is “caning which may extend to fifty lashes and in addition be sentenced to a term of imprisonment which may extend to six months”.
(b) Iranian Penal Code
The Islamic Penal Law was approved by the Islamic Consultancy Parliament on 30 July 1991 and ratified by the High Expediency Council on 28 November 1991.The Book Five of the Penal Code – Ta’azirat – has been ratified in May 22 of 1996.
According to Article 83 of the Code, adultery in the following cases shall be punishable by stoning:
(1) Adultery by a married man who is wedded to a permanent wife with whom he has had intercourse and may have intercourse when he so desires;
(2) Adultery of a married woman with an adult man provided the woman is permanently married and has had intercourse with her husband and is able to do so again.
According to Article 84, old married adulterers and adulteresses shall be flogged before being stoned.
However, Article 86 provides exception to the stoning punishment as follows: “Adultery of a permanently married man or a permanently married woman who does not have access to his or her spouse, due to travel, incarceration or similar impediments, shall not require stoning”.
Artciles 93 and articles 102 provide for situations and method of stoning.
Article 93 provides that “If an ailing woman or a woman in menstruation has been condemned to death or stoning, the punishment shall be carried out. If, however, she is condemned to flogging, the punishment shall be delayed until she is recovered or her menstruation period is over”.
Article 102 provides that “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.”.
It is noteworthy that unlike the Kelantan Hudud Bill where pregnancy may be prima facie evidence of zina, the Iranian Penal Code clearly stipulates that the pregnancy of a woman shall not raise the presumption of zina.
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