vol_4_4_chapter_4_part_III

CILS HARMONISED SHARIA PENAL CODE ANNOTATED
(d) with her consent, when the man knows that he is not her husband and that
her consent is given because she believes that he is another man to whom she is
or believes herself to be lawfully married;
(e) with or without her consent, when she is under fifteen years of age or of
unsound mind. 167
(2) Sexual intercourse by a man with his own wife is not rape. 168
Explanation:
Mere penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
128. Whoever commits rape, shall be punished: 169
(a) with caning of one hundred lashes if unmarried, and shall also be liable to
imprisonment for a term of one year; 170 or
(b) if married, with stoning to death (rajm); and
(c) in addition to either (a) or (b) above shall also pay the dower of her equals (sadaq
al-mithli) and other damages to be determined by the court. 171
[Explanation:] 172
Sodomy (Liwat) 173
129. Whoever has anal coitus with any man is said to commit the offence of sodomy. 174
167 PC: “when she is under fourteen years”. Bauchi: “under the age of maturity”. Kaduna: “under the
age of taklif”.
168 PC adds: “if she has attained to puberty”.
169 PC omits subsections (a)-(c), punishing rape “with imprisonment for life or for any less term and
shall also be liable to fine.”
170 Bauchi: “imprisonment for a term which may extend to fourteen years in a location other than his
domicile”. Kano and Katsina: “imprisonment which may extend to life imprisonment”.
171 Only Kaduna includes, as here, “and other damages to be determined by the court”.
172 Kano and Katsina have the following explanation here: “The conditions for proving the offences of
zina (fornication or adultery) or rape in respect of a married person are as follows: (a) Islam; (b)
maturity; (c) sanity; (d) liberty; (e) valid marriage; (f) consummation of the marriage; (g) four witnesses;
or (h) confession. If any of the above conditions has not been proved by the person alleging zina or
rape there is no punishment of stoning to death; the person alleging such offence shall be imprisoned
for one year and shall also be liable to caning which may extend to one hundred lashes.”
173 PC omits the separate offence of sodomy, presumably including it under “Unnatural offences”:
“Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be
punished with imprisonment for a term which may extend to fourteen years and shall also be liable to
fine. Explanation: Mere penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.”
174 Only Kaduna and Yobe have this same language. All other states: “Whoever has carnal intercourse
against the order of nature with any man or woman is said to commit the offence of sodomy.” Kano
and Katsina qualify this: “with any man or woman through her rectum”. All states except Kaduna also
add the following proviso: “Except that whoever is compelled by the use of force or threats [Sokoto:
of force or in fear of death or grievous hurt or fear of any other serious injury] or without his consent
to commit that act of sodomy [Kano and Kaduna: with another shall not be the subject] [all others:
upon the person of another or be the subject] of the act of sodomy nor shall he be deemed to have
committed the offence.” Kebbi also adds the following: “PROVE: 1. Sound mind; 2. Self Confession;
3. Four male witnesses in the act of sodomy who shall be trustworthy Muslims.”
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