sexual health and human rights in the african region - The ICHRP

Safiyyatu Husseini 534 an alleged adulterer (a woman) and her alleged co-adulterer
(a man) where charged with committing Zina. While the man was acquitted for
lack of evidence, the woman was convicted and sentenced to death by stoning by
Upper Sharia Court. 535 On appeal, the conviction was quashed on technical
grounds. In Commissioner of Police Katsina State v Amina Lawal and Yahaya
Mohammed, 536 an alleged adulterer and her alleged co-adulterer were charged
with Zina. The woman was acquitted and sentenced to death by stoning while
the man was acquitted on the ground that he had denied the offence on oath and
and that there was no evidence. The woman’s conviction was quashed on appeal
on the ground that her right to a fair trial had been infringed.
[55] The institutionalization of Shari’ah, in particular, the fact that Sharia Courts
can impose punishments that from constitutional and human rights
perspectives are unwarranted, discriminatory, degrading, retributive or
disproportionate calls into question whether the Nigerian state is discharging its
duty to respect, protect and fulfil the human rights of women under United
Nations instruments such as the Women’s Convention and regional instruments
the African Women’s Protocol that Nigeria has ratified.
4.11 CONCLUSIONS
[56] All countries have plural sources governing marriage. With the exception of
Zimbabwe which does not make provision for religious laws, marriages in all the
countries are governed by civil law statutes, customary law and religious law but
with the Constitution as an implied ultimate source. Uganda and Malawi are
exceptional in having constitutional provisions that directly address marriage.
[57] There is no uniform minimum age for civil marriage. For the majority of
countries, 18 is the age for consent to civil law marriage without the consent of
the parents. However, Kenya, Malawi, Nigeria, Uganda and South Africa that
have retained 21 years, and to this extent, do not meet their implied state
obligations under the Children’s Convention which treats persons that have
attained 18 years or more as adults and not children as is implied by statutes that
require parental consent for all persons under 21 years of age.
[58] On average, African countries prescribe discriminatory ages of consent in their
civil law statutes, setting a higher age for males and a lower age for females to
maintain a gap of two to three years. For marriages under 18 years, civil law
534 Commissioner of Police Sokoto v Safiyyatu Husseini Case No USC/GW/CR/F1/10/01, delivered on 9
October 2001 (Upper Sharia Court of Sokoto State, Nigeria).
535 Lawal Kurami v The State Upper Sharia Court of Appeal of Sokot State, Nigeria).
536 Commissioner of Police Katsina State v Amina Lawal and Yahaya Mohammed Case No 9/2002, delivered on
20 March 2003 Sharia Court of Katsian State, Nigeria).
155