What Exactly IS Shariah?

One only has to pick up a newspaper or go to an “Islamic” website to see many cases where Shariah is being used to address legal issues in a community. As Muslims we are told that Shariah is God’s law — in much the same way that the Torah outlined Jewish law. I don’t pretend to know much about Jewish law and in fact, I don’t know enough about Shariah, but since I as a Muslim may find myself at the mercy of Shariah then I think I need to learn more. And of course, my upcoming divorce will be handled in the Shariah this has been pressing my mind.

What I do know about Shariah is that it wasn’t handed down directly by Allah as a body of codified laws applicable in a Muslim society. In fact, its development — that of Islamic jurisprudence — is a far more involved process that evolved over time. From Wikipedia (which I never allow my students to cite but serves its purpose in this discussion to simplify for Muslim and non-Muslim readers):

Sharia is more of a system of devising laws, based on the Qur’an (the religious text of Islam), hadith (sayings and doings of Muhammad), (sayings and doings of of the early followers of Muhammad), ijma (consensus), qiyas (analogy) and centuries of debate, interpretation and precedent.

Since it would be highly unlikely that everyone agrees on all the analogies and interpretations, then it is only natural that there are several schools of Islamic jurisprudence that have resulted. Sunnis usually follow one of four schools (Hanafi, Hanbali, Shaafi and Maliki), while Shi’a have even more. Thus, we can see that it would not be accurate to consider Shariah “Divine” law — meaning recited directly by Allah — but rather the MAN-made (emphasis man) legal system based on what people THINK God’s law would be. Once man (or any human) enters into the equation there is always room for error and it is this which concerns me the most. I cannot count the number of times that I have spoken out against the application of Shariah in a specific situation, only to be admonished by my Muslim “brothers” that one who does not accept or even worse want Shariah as their society’s legal system is not a Muslim. Yet stories like the two that follow (of which, unfortunately there is no shortage) make the thought of living under Shariah abhorent to me.

RIYADH: A court in the kingdom of Saudi Arabia is punishing a female victim of gang rape with 200 lashes and six months in jail, a newspaper reported yesterday. The 19-year-old woman - whose six armed attackers have been sentenced to jail terms - was initially ordered to undergo 90 lashes for “being in the car of an unrelated male at the time of the rape”, the Arab News reported. But in a new verdict issued after Saudi Arabia’s Higher Judicial Council ordered a retrial, the court in the eastern town of Al-Qatif more than doubled the number of lashes to 200. A court source told the English-language Arab News that the judges had decided to punish the woman further for “her attempt to aggravate and influence the judiciary through the media”.

Last year, the court sentenced six Saudi men to between one and five years in jail for the rape as well as ordering lashes for the victim, a member of the minority Shia community. But the woman’s lawyer Abdul Rahman al-Lahem appealed, arguing that the punishments were too lenient in a country where the offence can carry the death penalty. In the new verdict issued on Wednesday, the Al-Qatif court also toughened the sentences against the six men to between two and nine years in prison.

The case has angered members of Saudi Arabia’s Shiite community. The convicted men are Sunni Muslims.
Lahem, also a human rights activist, said on Wednesday that the court had banned him from handling the rape case and withdrew his licence to practise law because he challenged the verdict. He said he has also been summoned by the ministry of justice to appear before a disciplinary committee in December. Lahem said the move might be due to his criticism of some judicial institutions, and “contradicts King Abdullah’s quest to introduce reform, especially in the justice system.” Gulf Times

At WIP (Women’s International Perspective) Eva Sohlman writes:

SANA’A, Yemen – For a Yemeni woman the most common route to a jail cell is love or prostitution. Another is to be raped. “The most common reason why a Yemeni woman is in prison is relationships with men,” says Najiba Naji, director of the state prison in Yemen’s capital Sana’a.

Women in Yemen – the homeland of the Queen of Sheba, according to legend – enjoy greater freedom than their sisters on the Arabian Peninsula, possibly the world’s most gender-conservative region. But this freedom does not count for much and the situation still leaves much to be desired, admits Ammat al-Aleem, Yemen’s Minister of Human Rights between 2003 and 2006. “There is no clear policy for women’s rights in Yemen. There is very little awareness of this.”

Yemen, known by the Romans as “Arabia Felix” (Happy Arabia) in the days when it flourished from the incense trade, is strategically placed at the southern tip of the Arabian peninsula where the Red Sea meets the Indian Ocean. Today it is one of the world’s poorest countries, on the periphery of world politics, and more known by the epitaph, “The land of the three Ks – Kidnappings, Kalashnikovs and Khat”. Ironically, this marginalization has meant that the country has ended up at the center of world events once again.

Often referred to as “the ancestral home of Osama bin Laden” Yemen has become a hotbed for Islamist fundamentalists. It is one of the countries most profoundly affected by the wave of terror which began in the middle of the 1990s, and gathered momentum after the September 11 attacks. Yemen’s government lacks full control of its coastal and inland borders, making it a smuggler’s paradise. At the same time, a branch of conservative Islam has strengthened its grip on the population, half of which live on less than $2 a day. Even Yemenis themselves describe their living conditions as medieval. A strong tribal culture which runs like invisible lace throughout society further complicates matters. Discontented Bedouin tribes occasionally take hostages (in order to force the government to honor its promises to build schools and hospitals); they also offer protection to terrorists who harbor in Yemen’s remote and ragged mountains. The government is now under pressure from the international community to control the extremists and so collaborates closely with the United States in its global “war on terror.” However, human rights groups complain that Yemeni women as well as children under the age of 12 have been kept prisoner without being formally charged, victims of the campaign to reign in the militants.

But among the female prisoners in Sana’a state prison, there are no political prisoners. Of the 50-odd women incarcerated, a few have been convicted of violence or for illegally trading in alcohol. Dozens, however, are locked inside for committing a cultural crime in a conservative Islamic society. Sharia law, which rules in Yemen, condemns all extra-marital sex. Some say they are guilty merely of having unchaperoned contact with men, and have been turned in by their own parents to preserve family honor. “It is very sad. It is society that makes these women into criminals,” says prison director Najiba Naji.

A room in the spartan, crowded state jail grows dark as the ferocious Yemeni sun sets, and some 20 women prisoners file in. They range from about 16 to 40 years old, although many are uncertain of their exact age. A male guard is asked to leave so the women can speak with greater ease. The prisoners are willing to talk. Sometimes the remaining female guards shake their heads sceptically at a woman’s version of her story, and offer a rival account. It is difficult to verify the stories, but all prisoners get to have their say.

Marjam, 17, tells how she fell in love with Moustafa, a married man renting a room in her family’s house. Marjam’s parents turned down her plea to be allowed to marry Moustafa (a man may take up to four wives in Yemen). The couple were later caught together being intimate. Marjam says she had no choice but to say, falsely she admits, that he had raped her, to save her own and her family’s reputation. The family then rejected Moustafa’s proposal to marry Marjam and pressed charges; Moustafa was arrested for rape and Marjam for having had sex.

It is now impossible for Marjam’s family to accept the marriage proposal and take back their accusations of rape. That would suggest they approved of Marjam’s and Moustafa’s sexual relationship, an interpreter explains. Marjam’s family insisted she spend time in jail to “clear her reputation”. Tribal law and custom are primary influences in Yemen, and it isn’t clear whether there is any formal legal charge against her. It is also unclear whether Moustafa is still accused of rape. But Marjam will be “free” soon. Her family has now found another man they want her to marry when she leaves jail, a man she does not know. “I have no choice,” she says, shrugging sadly. “I am still in love with Moustafa, but I will get married to the other man.”

The women speak in a matter-of-fact way, seemingly without shame or resentment, in front of an audience of five women guards, a female European journalist, a female interpreter and the female prison director Najiba Naji. “The typical case of a woman prisoner in Yemen is that she has committed a ‘love crime’,” said Najiba. “Women ‘interfere’ with men because they are in love. That’s why most of them are here.” It is an odd verb to use, perhaps the result of dubious translation. Najiba explains what she means by “interfering with men”. “It means the woman has been caught with a man on her own. This is a crime,” she says. “The charge is often that of “prostitution”.

There are also those in prison who have been raped and then rejected by their families, such as Noor, in Taizz in southwest Yemen. “It was very tragic. They say she was raped when she was 12 years old and got pregnant, but her father turned her into the police because of the shame [it brought upon the family]. They claimed she had prostituted herself,” says a European diplomat familiar with her case. He says Noor had been raped by some of her own male relatives and that the father had tried to save the family’s reputation by claiming she had prostituted herself. “She had no idea where to go if released. She was scared her male relatives would kill her to restore the family’s honor once she was out.” So-called “honor killings” are not known to be as common in Yemen as in for example Pakistan and Jordan.

In some cases, the relationship between the man and woman involved is indeed one of prostitution, says Najiba. “It is largely the conservative environment which turns women into criminals,” she explains. Divorce is allowed in strongly Islamic Yemen, but it cannot be initiated by the wife unless so stipulated in prenuptial vows; very few women insist on this. Most divorced women struggle to support their children, and it is unusual for a man to want to marry a divorcée. So, without economic support, some women are driven by desperation into prostitution.

Najiba says a recurring pattern she sees is one in which a girl falls in love with a man whom the family will not accept, then elopes and gets pregnant with him. The family then turns them both in to the police; the couple can end up in prison if someone can testify that they have been intimate. The man often denies the relationship. Another common story among the convicted women is the result of arranged marriages – which are forced on girls as young as 12 years of age. Later, the girl may fall in love with another man and, if found out, she is then charged with adultery. “Women, or, I should say, girls, are often wed at a very young age, far too young,” says Najiba.

Ammat al-Aleem, says the government is aiming to change the official age for marriage from 15 to 18 years, but admits she thinks this will probably have limited impact in a country where tribal law dominates outside the cities. Human rights organizations say women still face discrimination in personal status law; there is little protection for them from underage, forced, and polygamous marriages. Only a male guardian can, for example, arrange a marriage for a woman.

The corridor to the women’s cells in Sanaa runs in an L-shape around a courtyard, the complex surrounded by a high concrete wall. Washed underwear and diapers hang on the fence between the corridor and inner courtyard: children live with their mothers who are prisoners. About ten women share a cell that measures roughly 16 square metres. They spend much of the day in their narrow metal bunks. There is no other furniture. The barren rooms are either lit by harsh fluorescent lights in the ceiling, or not at all. In one, women are trying to cook dinner in the dark; their only light comes from a small gasoline stove. “We let them cook their own food if they want to. They get food here, but can improve it with whatever they are given by friends and relatives,” explains a female guard. The guards wear a blue trouser uniform and a headscarf. Some of the prisoners, however, go with their heads uncovered – among the few Muslim women in Yemen to do so. The heavy smell of the gasoline used for cooking hangs over the place, mixed with cigarette smoke.

As Najiba leads the way through the corridor, Bilquis, a Yemeni woman of about 40, approaches to explain in English why she has been put behind bars. She says she lived in the United States but returned to Yemen to raise her children, but was arrested by the police because of a dispute over a mobile phone. Najiba says Bilquis is not in prison just because of the dispute, but because she has been caught drinking and prostituting herself. “She is in and out of here like a yo-yo, it is sad to see. It is obviously hard for her to adjust to this culture.”

In the last cell the women say a baby boy was born in the prison that very same day. The mother is lying in one of the bunk beds with a blank expression on her face. The small bundle is held up for show and everybody is smiling and chatting until the interpreter jerks back with a cry, holding her hand over her mouth. Once she is composed she explains: “The woman says the father of her baby is her father. They say she is in prison because she was raped by her own father!”

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