Friday, 26 June 2015

David Cameron’s Theological Deficiency: There is a Muslim Response to Muslim Extremism

Prof Jon Yorke
Professor of Human Rights, BCU School of Law

In his speech at the Globsec conference in Bratislava,Slovakia (18 June 2015), David Cameron chose to address the issue of religious extremism and radicalization. He was guarded in his language in stating that there were “some” people holding “some” of the extremist views, but that they didn’t “go as far as advocating violence” but they did, “buy into some of these prejudices giving the extremist Islamist narrative weight,” which “turns simmering prejudice into murderous intent.” 

Baroness Sayeeda Warsi, the former Minister of State for Faith and Communities, deconstructed his speech in an article in The Guardian, “Remember, Prime Minister: British Muslims hate Isis too” (19 June 2015). Baroness Warsi gave credence to the Prime Minister’s overall point and stated:

“David Cameron is right. Isis poses a massive threat - one of the biggest we face today. He is right when he describes the poisonous narrative they preach and I welcome his comments that British Muslim communities have a powerful and important role to play in dealing with a situation that is becoming increasingly grave. As Prime Minister, he is right to bring the authority of his office to bear.”

She agreed that the Prime Minister had made the correct theological exegesis on the “poisonous narrative they preach,” that it was within the constitutional mandate of the “office” of the PM to make such observations. He was also right in articulating the classical religion/state divide, that this was something in which Muslim communities must bear a significant amount of responsibility.

However, whilst Baroness Warsi gave credence to David Cameron in noting that there were many reasons why young people become radicalised and then, “take the next step towards acting on those warped beliefs,” she prudently took a stand against his singling out for special mention in his speech of the “notion of Muslim community complicity.” 

The Prime Minister’s speech is consistent with the Conservative rhetoric of “big society.” It engenders a distinct move away from principles of human rights and gives a thumbs up for “security creep.”

Indeed, the Counter Terrorism and Security Act 2015, Section 26, states that “special authorities” (which includes schools and universities) must have, “due regard to the need to prevent people from being drawn into terrorism.” This legislative policy is reflective of the Prime Minister’s rhetoric creating a surveillance mechanism which brings schools and universities into juxtaposition with Muslim communities for weeding out extremists. 

Are we now to return to a kind of police state in which we will not just tolerate each other’s different beliefs, but engender a weariness and suspicion of those “different” to us? Will we return to a self-regulatory panopticism in a constant fear that someone is watching?

Such self-inquisition will very likely bread instability and result in lashings out against the “other.” Owen Jones’ observation of the “dangerous ‘other’” becomes apposite here, see The Guardian, “David Cameron, Inadvertent PR man for Islamic extremists,” (19 June 2015). History reminds us of the stark reality of what we can do to the “other” merely because we are insecure about their intentions. We can become clever at presenting an impenetrable narrative to legitimise acting pre-emptively.  

This is a very unhealthy social policy. At its pinnacle we can point to the proposed abolition of the current Human Rights Act and relinquishing of the regional human rights protection offered by the Council of Europe. Of equal encroachment upon human rights protection and in some ways more damningly, is the possibility of leaving the European Union. In such a quixotic event, we would be stepping outside of the protective mechanism of the EU Charter of Fundamental Rights and the growing human rights jurisprudence of the Court of Justice of the European Union. 

So we need to read between the lines of the Prime Minister’s carefully crafted speech and be weary of the dismantling of our human rights through his selective harangue. 

Baroness Warsi revels a significant lacuna in the Bratislava speech. She states that the PM did not point to the good work that is currently being done within Muslim communities to counter terrorism and she wishes that more politicians, “would meet the Imams leading the ideological fight against Isis.” If more politicians did, including David Cameron, they would learn about, “The fatwas, curriculums and conferences that unpick and reject the extremist ideology; the charitable giving which reaches across faith communities.” 

These recent concerns on extremism and radicalisation came just before the 23 June 2015 launch in the UK of the “Islamic Curriculum on Peace and Counter-Terrorism,” written by Shaykh-ul-Islam Dr Muhammad Tahir-ul-Qadri. The event took place in the grand setting of the Methodist Central Hall in Westminster, just behind the Houses of Parliament. 

In 2010 Dr Tahir-ul-Qadri published a Fatwa entitled “Terrorism and Suicide bombings,” in which he denounced the violence caused by extremists as not reflective of a “true jihad.” He has now solidified his concerns within a theological curriculum on peace and counter-terrorism and he is touring many parts of the UK, and other countries around the world to promote this Islamic pedagogy which he hopes will be embraced by all Muslims.  

The curriculum includes detailed teaching and exegesis of the Qur’an and Hadith, including on the subjects of peace and love, sanctity of life, legal equality, freedom of expression and the right to education. The overall content of the course can be reflected through recourse to the Hadith, Al-Bukhari, s. 362, “Spread peace, you will be secure,” which is cited in the curriculum text, “Peace, Integration and Human Rights,” p. 10.   

There is disturbing irony here. In Dr Tahir-ul-Qadri spreading this curriculum his personal security may be threatened for promoting an ideology that would dismantle the aggressive platform that Isis currently deploys. In fact this was made clear by one of the participant’s questions in Central Hall during the launch, and Dr Tahir-ul-Qadri’s humble response was that he “trusted in God.” 

What this curriculum demonstrates is that the monopoly of interpretation of the religious texts of Islam does not reside with Isis. There are alternative interpretations which have as their foundation, peace, mercy and love. Dr Tahir-ul-Qadri’s teachings are currently the clearest discourse from a rich use of Quranic and Hadith texts of any Islamic scholar denouncing extremism and radicalisation, and the evil consequences of the process. 

It is an intellectual activity that has the formidable potential of saving many lives, and it is clear that Dr Tahir-ul-Qadri’s curriculum is a humane contribution to mankind.

He has the potential of being placed within the Islamic pantheon of great intellectuals. For example, Mohammed ibn-Musa al-Khomwarizimi (circa. 780-855 CE), who synthesized Greek and Hindu arithmetic and recognised the numerical importance of the use of “zero” (Al-Khomwarizimi termed the numeric zero as ‘sifr’ – from which derived the etymology of the English word ‘cipher’). Or the polymath Avicenna (Ib Sina) 980-1037 CE, in his metaphysical philosophy identified an Islamic “science of being,” and which many think influenced René Descartes,’ “Cogito, urge sum,” (“I think, therefore I am”) in “Discourse on the Method” (1637). Humans can thus cognitively and morally establish themselves apart from nature and possess inherent dignity.

Dr Tahir-ul-Qadri’s curriculum teaches on the inherent dignity and human rights concepts that scholars of the United Nations, the African Union, the Organisation of American States, the Council of Europe or the European Union, would be familiar with. It is clear from the launch of this course that the Organisation of Arab States would benefit from engaging with these teachings. 

In the curriculum text “Peace, Integration and Human Rights,” it states that the Prophet Mohammad’s Final Sermon, “was a universal message, whose teachings resonate in the corners of the earth, such that the Universal Declaration of Human Rights is based on the same concepts,” p. 44, and in Topic 8 of the curriculum entitled, “Fundamental Human Rights,” a host of individual human rights are described. 

It may have been beneficial if Dr Tahir-ul-Qadri had cited the content of some of the key international human rights texts so that students on this course could have compared the wording of the law (thus engaging in both theological hermeneutics and a human rights critique) for themselves. For example, the International Covenant on Civil and Political Rights, (1977) Article 18, on the freedom of thought conscience and religion, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981), and the Arab Charter on Human Rights (2004), Article 3, which states, “Every State party to the present Charter undertakes to ensure to all individuals…religious belief, opinion, thought...”  

It is clear that there is still a long way to go for women's and children's rights to be recognised within many Islamic countries. The issue of the death penalty remains a most significant problem in Islamic jurisprudence and countries which retain the punishment are becoming more and more marginalised in the global human rights community.  

The inclusion of specific international human rights and the regional frameworks, within such a theological course is beneficial because of the burgeoning complex information of Islam and human rights within the Universal Periodic Review (UPR) in the Human Rights Council in Geneva.

Each member state of the United Nations, including all states which adopt a form of Islamic law (Sharia Law) within their domestic law, must provide a report on state practice in conjunction with their human rights commitments under the UN international covenants. 

In the UPR there is also an opportunity for stakeholders (including NGOs within Islamic countries) to bring to the attention of the Human Rights Council the violations of human rights in their country. This UN reporting mechanism is becoming a significant resource for the study of freedom of religion and associated human rights within countries which adopt Islamic law. 

At the launch of the curriculum, Dr Tahir-ul-Qadri’s affirmation that “there is no compulsion in religion (Dīn),” (Al-Baqara, ayah 256) was well received. 

This is a significant affirmation which is reflective of the UN Special Rapporteur on Freedom of Religion or Belief, Heiner Belefeldt, who in the Report of the Special Rapporteur in 2011, articulated the importance of individual recognition and that human dignity can only be realised when individuals are able to choose which religion they wish to follow, have the freedom to change religion, and indeed, change denomination within the same religion, and also choose to not believe in a transcendent deity (be an atheist). 

The launch of Dr Tahir-ul-Qadri’s curriculum poses serious questions as to the effectiveness of Jewish and Christian teachings on the commitment to tolerance, recognition and peace. 

In Judaism, the recording of the first murder of Cain killing Abel in the Book of Genesis (Chapter 4), through to the current disproportionate responses in Gaza, demonstrate a need for such teaching on peace and counter-terrorism.

Christianity can trace its first instance of killing one of its own for heresy to the torture and execution of Bishop Priscillian of Avila 385 CE and the violence and damage caused by the crusades are well known alongside the Catholic verses Protestant bloody European wars of 1618-1648, to George Bush announcing that he was doing God's will in attacking Iraq. 

There are denominations within Judaism and Christianity that promote peace. Many are performing the task in a tireless, and noble, manner, and should be applauded. However, there needs to be a reassessment as to whether their versions of the peace studies curricula are being effective. If not, a strategic change is required.  

It is clear that all of the monotheistic faiths have a job to do to wash the blood from their hands. Teaching tolerance, recognition and peace is a good start. 

The views of the Prime Minister and Baroness Warsi’s retort reveals that in the United Kingdom we still have a way to go to counter extremism and radicalisation. The horrific experiences of the families which have had sons and daughters radicalised is a damning indictment of the disconnect between politicians and faith groups.

Baroness Warsi was right. Before the Prime Minister, and any politician, can engage in a finger-wagging exercise of blame and shame, we need more dialogue at the political-faith level and also at the multi-faith level. Let’s talk about peace. 

Friday, 19 June 2015

Islam and the Death Penalty

[This blog post is an example of the materials that participants on the Massive Open Online Course (MOOC) on the Meriam Ibrahim case on 22 June 2015, can expect to learn from. If you would like to participate in the course and learn more about Sudanese criminal procedure, family rights, freedom of religion and the role of social media in protecting human rights in Sudan and Africa, please see: BCU Law School MOOC Page and register at:]

by Prof Jon Yorke, Professor of Human Rights[1]

Qur'an, Surat Al-Fātiĥah
(English translation: Pickthall)
In the name of Allah , the Entirely Merciful, the Especially Merciful.
This document provides information to help inform political, legal and religious, dialogue at the bilateral and multilateral levels on the question of the legitimacy of the death penalty within Islamic law. What follows is an attempt to present a respectful reading of Islamic doctrine to create the impetus for tolerant discourse on this religious perspective on capital punishment. In all circumstances respect should be maintained towards the specific Islamic doctrine that is discussed. 
When discussing the death penalty with retentionist Islamic states it should be established to what extent the Shari'a is used to legislate capital crimes and proscribe methods of execution. Essentially, if the death penalty is legislated outside of any specific mandate within the Shari'a there is no theological bar preventing the discussions from being framed within the human rights discourse. In such circumstances there can be no theocratic claims to close the boundaries of the discussion of the punishment.
The human rights standards against the death penalty are well known,[2] and should be applied, including; the punishment is a violation of human dignity, the right to life, and the prohibition against cruel and inhuman punishment. These standards should be placed in context with the regional human rights principles formulated by the League of Arab States under the Arab Charter of Human Rights,[3] to encourage regional abolitionist mandates and engender greater support from the League, for the United Nations General Assembly Resolution on the Moratorium on the use of Death Penalty.[4]
However, and this is the main focus of the paper, if the death penalty is legitimised through exclusive and traditional interpretation of the Shari'a, it is very likely that these retentionist governments will seek to keep the discussions focused upon religious doctrine. In these circumstances the dialogue with Islamic states should not be that the non-application of the death penalty is exclusively an expression of human rights, but that it is also a fundamental tenet of the Shari'a itself. This is an important nuance for the discussion in affirming the legitimate place of Islamic theology.
A sensitive consideration of the death penalty in the Shari'a places its application within the theological expressions of, "peace", "mercy" and "repentance". It is clear that there are examples of the death penalty within the religious texts, but what is also clear, and should be discussed, is that there are prima facie competing theological themes. Discussions which weigh and interpret these themes can lead to a heightened application of peace, mercy and repentance, over the possibility of putting people to death through capital punishment. Of fundamental importance for this discussion is the need to reveal the eternal spiritual significance of putting a Muslim criminal to death. This punishment repudiates the possibility of repentance.
Below are the essential theological propositions and alternative interpretations (textual exegesis) to demonstrate the possibility of the non-application of the death penalty within the Shari'a. An appendix is also provided with key texts from the Qur'an and the Hadith, including the Arabic script.
Islamic Schools of Jurisprudence and Interpretation of the Shari'a
The Shari’a, Islamic law, is based upon two sources; the Qur'an (recording the spoken word of Allah and constitutes the principle teachings of the Shari’a) and theSunna (which includes the Hadith that records the sayings and actions of the Prophet Muhammad). These two sources are supplemented by the Fiqh (Islamic jurisprudence or the "science of law" [5]), which comprises the rulings of Muslim scholars.[6]
The Shari'a requires interpretation. Several schools of Islamic jurisprudence apply the, Shari'a – ilm usul al-fiqh ("the science of the principles of the interpretation of the law"[7]), and these schools have developed interpretive discourses known as Madhahib.[8] It is commonly stated that one of the most significant doctrinal questions for the Madhahib is whether the Qur'an and Sunna are to be applied literally, from their historical context, or whether the intent and purpose of the text can evolve to accommodate contemporary political, social and economic circumstances.
M. Cherif Bassiouni has identified that there are three broad approaches to the interpretation of the Shari'a, which are; "traditionalist," "fundamentalist," and "secular reformists."[9] With regards to the question of the death penalty, it appears that currently those who may be recognised as, "reformist," would be most willing to accommodate the restriction and non-application of the death penalty through an evolutive interpretation of the Shari'a, and also through universal and Arabic principles of human rights.[10] Those who are, "traditionalist", and/or, "fundamentalist", would currently be less willing to accommodate arguments that the non-application of the death penalty is a theological and thus, political, possibility, because through their textual exegesis the punishment is mandated and in the Shari'a.
Within the Shari'a there are three categories of crimes; HududQesas, and Ta'àzir.[11]
Hudud Crimes
The Hudud crimes (RiddaZenaBaghi and Haraba) allow for the prima facie possibility of the death penalty.
Ridda is apostasy, the renunciation of Islam by a Muslim. In the 7th Century, apostasy originally meant leaving the faith to join the enemies of Islam.[12] There are differing opinions as to whether leaving the faith is today a crime legitimately punishable by death. Firstly, this is because those who leave Islam are not necessarily joining the enemies of Islam, but are living their lives based upon other social beliefs. Secondly, there is a competing Islamic theological principle, in that religious compulsion is prohibited as specified in the Qur'an Surat al-Baqaraayah 256, which states, "[t]here shall be no compulsion in [acceptance of] the religion."  Thirdly, the punishment of death for Ridda eliminates the possibility of repentance (this is explained in greater detail below).
Zena is the crime of sexual immorality. There are specific requirements which must be met, including, that the intercourse must have been witnessed by four different people or those who performed the act must confess four times.[13] The requirement of four confessions has been interpreted to mean that the Prophet wanted to promote the beneficent, the exonerating, the oft-pardoning, nature of Allah.[14] This is evidenced by the Prophet turning his face away from the confessor four times, in an act of wanting to withhold the infliction of the death penalty (for further information, see below in Appendix 2).[15]
Baghi is rebellion or uprising, and involves an act of aggression.[16] The Qur'an does not specify a punishment for Baghi. The four Sunni schools provide the option of the death penalty, but also other penalties such as exile. The death penalty is not mandatory, but is permissible.
Haraba is identified as those who wage war against Islam and the legitimate rulers of Islamic societies. There are a variety of punishments which may be imposed, including, the death penalty, exile and having the criminal's hands and feet from the opposite side cut off.[17] The death penalty is not mandatory, but is permissible.
Qesas Crimes
Qesas crimes are those which result in crimes against the person, including the infliction of various examples of physical harm, through to the act of committing homicide. For these crimes, the victim or the victim’s family (if a homicide has occurred) has the right to inflict upon the criminal the same harm that was inflicted upon them, including up to death.[18] This is a form of quantitative retribution, most commonly expressed in the discourse on the death penalty as, "a life for a life," and in the Qur'an as, "[a]nd we ordain for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution."[19] However, for Qesas crimes, Diyya may be applied, which provides for victim compensation as an alternative to the administration of quantitative retribution. Muhammad Moheiddin Awad has identified the appropriateness of the primacy of Diyya over retribution, as it represents the preferable choice within the overall promotion of peace in Islam, and appropriately reflects the fundamental attributes of the beneficent and exonerating nature of Allah.[20]
Ta'azir Crimes
Ta'azir crimes are those which are formulated by Islamic theocracies through state legislatures. These crimes are not explicitly found within the Shari'a and thus are not categorically derived from the Qur'an or Hadith; for example, those Islamic countries which apply the death penalty for drugs offences – such as in Iran.  Bassiouni states that the, "penalty choices for these crimes reflect cultural perspectives and social policy choices."[21] There is nothing within the Shari'a to affirm that the death penalty must be applied for Ta'azir crimes. Furthermore, the diversity of punishments in different Islamic countries reveals that there is not a theological consensus on the application or even, the extent, of punishments for Ta'azir crimes.
Deterrence as the Theological Argument Against the Death Penalty
There appears to be a significant need for dialogue on the issue of whether the imposition of the death penalty as a principle of Islamic criminology, has been clearly demonstrated to be an effective deterrent against crime. There are those within Islam who question the solidity of the deterrence argument.[22] Any claims by Islamic governments that the death penalty provides the most effective form of deterrence need to be supported by verifiable quantitative data. Roger Hood and Carolyn Hoyle have analysed in-depth the criminological and legal aspects of the death penalty around the world, and have revealed through an assessment of the empirical studies that the death penalty fails to provide an adequate deterrent effect.[23] It must be explained that the deterrence arguments promoting the death penalty have failed empirically. Furthermore, the increase in executions in certain Islamic countries is ipso facto a practical demonstration of the failure of the deterrence argument.
Errors within the Capital Judicial Process
Within the Hadith there is explicit reference to the danger of error in the administration of punishments. Sunan Tirmidhi, states, "[i]t is better for a judge to make an error in acquittal than in conviction."[24] It should be emphasised in dialogue that with the existence of a capital judicial system there will always be the strong probability that innocent Muslims will be wrongly sentenced and wrongly executed. It is therefore appropriate for an interpretation to be offered that through the Shari'a the death penalty should be suspended as a principle of exceptional circumstances under the doctrine of "necessity" or darûra.[25] Consequently, in order for Islamic states to guarantee that innocent Muslims will not be executed, the capital judicial process should be repudiated. As Islamic countries seek to reflect the peace and mercy of Allah to the world, it is appropriate for Islamic theocracies to impose punishments which minimize, and not maximize, retribution. The non-application of the death penalty would be reflective of this. Finally, it should be considered that when a political system mandates and imposes a high degree of retribution through a wide scope of capital crimes, there is a possibility that Muslim criminals will be subject to capital crimes (under Ta'azir crimes) which Allah has not mandated, and would not intend to be mandated.
Conclusion: Advocating the Possibility of Repentance as a Reason for the Non-Application of the Death Penalty
The application of the death penalty makes it impossible for a criminal to, "repent," of their crimes; as repentance can only happen in this life, and not in the afterlife. It is a principle of Islamic theology that in Hudud crimes, repentance can be demonstrated thus bringing the Muslim back into a reconciled relationship with Allah and his or her fellow Muslims. For example, in the crime of Baghi (uprising against Islam) the Qur'anSurat al-Ma'idaayah 34, states, "Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful." Bassiouni argues:
Repentance is surely grounds for remission of all penalties. Why repentance is not recognised and applied by contemporary Muslim legal systems, which apply the Shari'a, as part of contemporary theories of rehabilitation for crimes of offenders can only be attributed to their selective application of the letter of the law taken without regard for Shari'a's enlightened spirit.[26]
The impossibility of repentance following an execution must be an integral part of the dialogue with Islamic governments which impose the death penalty. It should be asked how this is consistent with the fundamental tenet of, "mercy," within Islam. In support of this argument and for the content of discussion for dialogue, there is a Hadith which emphasises the beneficent quality within Islam of averting punishments. In the Sunan Tirmidhi it states:
Aisha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him and give him peace) said: Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.[27]

[1] Research assistance provided by BCU Law Students: Sahliya Azeem, Amna Nazir, and Bhavinie Purohit.
[2] See, Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, 4thed, (Oxford: Oxford University Press, 2008); William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed, (Cambridge: Cambridge University Press, 2002); Jon Yorke (ed), Against the Death Penalty: International Initiatives and Implications, (Farnham: Ashgate Publishing, 2008); David T. Johnson and Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia,(New York: Oxford University Press, 2009).
[3] The League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int'l Hum. Rts. Rep. 893 (2005), entered into force March 15, 2008. The Arab Charterrecognises the inherent right to life (Article 5). Article 6, states, "Sentence of death may be imposed only for the most serious crimes in accordance with the laws in force at the time of commission of the crime and pursuant to a final judgment rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence." Article 7 (1) "Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime. (2) The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration." Article 8 (1) "No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment." (2) "Each State party shall protect every individual subject to its jurisdiction from such practices and shall take effective measures to prevent them. The commission of, or participation in, such acts shall be regarded as crimes that are punishable by law and not subject to any statute of limitations. Each State party shall guarantee in its legal system redress for any victim of torture and the right to rehabilitation and compensation."
[4] UNGA Resolution, Moratorium on the Use of the Death Penalty, A/RES/67/176, 20 December, 2012.
[5] M. Cherif Bassiouni, Death as a Punishment in the Shari'a, in, The Death Penalty: Condemned, International Commission of Jurists, September, 2000, p. 66.
[6] William A. Schabas, 'Islam and the Death Penalty,' 9 Wm. & Mary Bill Rts. J. 223 (2000), p. 231.
[7] Bassiouni, supra, p. 67.
[8] For more information on the Madhahib, see Bassiouni, p. 66-73.
[9] In essence, Bassiouni identifies (pp. 69-71) "traditionalists" as those who represent the religious establishments, including the Islamic universities, and are literalists with certain aspects of purposive interpretation; "fundamentalists" are essentially literalists but dogmatic and promote political activism through certain forms of violence, and "secular reformists" use scientific knowledge for the interpretation of Islamic law and the address of contemporary problems.
[10] For example, Turkey.
[11] In the Hadith the death penalty is identified as "permissible" for three crimes:
"Ibn Mus 'ud (Allah be pleased with him) reported that Allah's Messenger (Allah bless him and give him peace) said, "The blood of a Muslim, who testifies that there is no (true) god except Allah and that I am Allah’s Messenger, does not become permissible except for one of three acts: a married person who commitszina, one soul for another (killed) soul, and a man who abandons his deen(religion) and departs from the Jamaa 'ah (of Muslims)," in, Sahih al-Bukhari, Hadith 6878; Sahih Muslim, Hadith 1676.
[12] Bassiouni, p. 75.
[13] For a woman confessing four times to sexual immorality, Sahih Muslim, Book 17, Hadith 4206. For an example of a man confessing four times to sexual immorality, see, Sahih al-Bukhari, Volume 8, Book 82, Hadith 814.
[14] In an example of zina the Prophet inferred that if the person committing zina and had made four confessions, is identified as "insane" this would prevent the death penalty, seeSahih al-Bukhari, Volume 8, Book 82, Hadith 814.  See also, Sahih Muslim, Book 17, Number 4206, where the Prophet asks, "Do you know if there is anything wrong with his mind?"
[15] See, Sahih al-Bukhari, Volume 8, Book 82, Hadith 814.
[16] See, Surat al-Hujuratayah 9.
[17] See, Surat al-Ma'idaayah 33.
[18] See, Surah Baqaraayah 178, "O you who believe! Al-Qisas (the law of equality in punishment)...but if the killer is forgiven by the brother (or the relatives, etc) of the killed against blood money, to the heir should be made in fairness." Surah al-Israayah 33, "...we have given his heir the authority (demand Qisas, law of equality in punishment or to forgive...)"
[19] Sura Ma'idahayah 45.
[20] For example see, Sura Ma'idahayah 34 and Sura ale-Imranayah 159; see also, Muhammad Moheiddin Awad, Bada'il al-Jaza’at al-Jina'ia fil Mojtama' al Islami (The Substitute Criminal Penalties in Islamic Societies) (1411 A.H., 1991 A.D.), cited in Bassiouni, p. 81.
[21] Bassiouni, p. 82.
[22] For example, see Islamic Scholar, Imran Hosein's website at, Although it must be stated that he argues that the death penalty is justifiable within Islam.
[23] See, Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, (4thed) (Oxford: Oxford University Press, 2008), pp. 317-349.
[24] Sunan Tirmidhi, number 1424.
[25] Joseph Schacht, Problems of Modern Islamic Legislation, 12 Studia Islamica 99 (1960), reprinted in, Ian Edge (ed), Islamic Law and Legal Theory, (Aldershot: Ashgate, 1996), p. 101.
[26] Bassiouni, p. 83.
[27] Sunan Tirmidhi, number 1424.

Islam and the Death Penalty: Key references from the Qur'an and Hadith

Compiled by Prof Jon Yorke
Selected verses (ayah) of the Qur'an and Hadith. Translation and Arabic text from, Translation: Sahih International)
The Possibility of the Death Penalty
Sura Al-Isrā, ayah 33
Sura Al-Isra Ayah 33
(Translation: Sahih International)
And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly - We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law].

Non-Mandatory Death Penalty in Haraba Crimes
Sura Ma'idah, ayah 33
Sura Ma iDah ayah 33
(Translation: Sahih International)
Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment.

Non-Application of the Death Penalty for Baghi Crimes
Surah Hujurat, ayah 9
Surah Hujurat ayah 9
(Translation: Sahih International)
And if two factions among the believers should fight, then make settlement between the two. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah . And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly.

No Death Penalty for Zina crimes of Unmarried People
Surah Nur, ayah 2
Surah Nur Ayah 2
(Translation: Sahih International)
The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah, if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment.

No Compulsion in Islam
Surah al-Baqara, ayah 256
Surah al-Baqara ayah 256
(Translation: Sahih International)
There shall be no compulsion in [acceptance of] the religion. The right course has become clear from the wrong. So whoever disbelieves in Taghut and believes in Allah has grasped the most trustworthy handhold with no break in it. And Allah is Hearing and Knowing.

Compensation (Qisas) for Murder
Surah Al-Baqarah, ayah 178.
Surah al-baqara ayah 178
(Translation: Sahih International)
O you who have believed, prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment.
Surah Ma’idah, ayah 45
surah Ma idah ayah 45
(Translation: Sahih International)
And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers.
Surah Nisa, ayah 92
Surah Nisa, ayah 92
(Translation: Sahih International)
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah. And Allah is ever Knowing and Wise.

Repentance and the Forgiving and Merciful Nature of Allah
Surah Ma'idah, ayah 34
Surah Ma'idah, ayah 34
(Translation: Sahih International)
Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful.

Repentance and Alternative Punishments for Zina
Surah Nisa, ayah 16-17
Surah Nisa, ayah 16-17
(Translation: Sahih International)
Those who commit unlawful sexual intercourse of your women - bring against them four [witnesses] from among you. And if they testify, confine the guilty women to houses until death takes them or Allah ordains for them [another] way.
Surah Nisa, ayah 16-17b
(Translation: Sahih International)
And the two who commit it among you, dishonor them both. But if they repent and correct themselves, leave them alone. Indeed, Allah is ever Accepting of repentance and Merciful.

Appendix 2: The death penalty for zina (adultery)
حَدَّثَنَا أَبُو الْيَمَانِ أَخْبَرَنَا شُعَيْبٌ عَنْ الزُّهْرِيِّ قَالَ أَخْبَرَنِي أَبُو سَلَمَةَ بْنُ عَبْدِ الرَّحْمَنِ الرَّحْمَنِ وَسَعِيدُ بْنُ الْمُسَيَّبِ أَنَّ أَبَا هُرَيْرَةَ قَالَ أَتَى رَجُلٌ مِنْ أَسْلَمَ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَهُوَ فِي الْمَسْجِدِ فَنَادَاهُ فَقَالَ يَا رَسُولَ اللَّهِ إِنَّ الْأَخِرَ قَدْ زَنَى يَعْنِي نَفْسَهُ فَأَعْرَضَ عَنْهُ فَتَنَحَّى لِشِقِّ وَجْهِهِ الَّذِي أَعْرَضَ قِبَلَهُ فَقَالَ يَا رَسُولَ اللَّهِ إِنَّ الْأَخِرَ قَدْ زَنَى فَأَعْرَضَ عَنْهُ فَتَنَحَّى لِشِقِّ وَجْهِهِ الَّذِي أَعْرَضَ قِبَلَهُ فَقَالَ لَهُ ذَلِكَ فَأَعْرَضَ عَنْهُ فَتَنَحَّى لَهُ الرَّابِعَةَ فَلَمَّا شَهِدَ عَلَى نَفْسِهِ أَرْبَعَ شَهَادَاتٍ دَعَاهُ فَقَالَ هَلْ بِكَ جُنُونٌ قَالَ لَا فَقَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ اذْهَبُوا بِهِ فَارْجُمُوهُ وَكَانَ قَدْ أُحْصِنَ وَعَنْ الزُّهْرِيِّ قَالَ أَخْبَرَنِي مَنْ سَمِعَ جَابِرَ بْنَ عَبْدِ اللَّهِ الْأَنْصَارِيَّ قَالَ كُنْتُ فِيمَنْ رَجَمَهُ فَرَجَمْنَاهُ بِالْمُصَلَّى بِالْمَدِينَةِ فَلَمَّا أَذْلَقَتْهُ الْحِجَارَةُ جَمَزَ حَتَّى أَدْرَكْنَاهُبِالْحَرَّةِ فَرَجَمْنَاهُ حَتَّى مَاتَ
Narrated by Abu Hurayra (Allah be pleased with him):
A man from amongst the people came to the Messenger of Allah (Allah bless him & give him peace) while he (the Messenger of Allah) was sitting in the Masjid, and addressed him, saying: O Messenger of Allah! I have committed illegal sexual intercourse. The Messenger of Allah (Allah bless him & give him peace) turned his face away from him. The man came to that side to which the Messenger of Allah (Allah bless him & give him peace) had turned his face, and said: O Messenger of Allah! I have committed illegal intercourse. The Messenger of Allah (Allah bless him & give him peace) turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah (Allah bless him & give him peace) called him and said: Are you insane? He said: No, O Messenger of Allah! The Messenger of Allah (Allah bless him & give him peace) said: Are you married? He said: Yes, O Messenger of Allah! The Messenger of Allah (Allah bless him & give him peace) said (to the people): Take him away and stone him to death.
(Sahih al-Bukhari, Volume 8, Book 82, Hadith 814)
The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the prophet that he had committed unlawful sexual intercourse, yet the prophet ignored him, in order that he may change his mind.
Narrated by Ibn 'Abbas (Allah be pleased with him):
When Ma'iz bin Malik came to the Prophet (in order to confess), the Prophet said to him, "Probably you have only kissed (the lady), or touched, or looked at her?" He said, "No, O Allah's Apostle!" The Prophet said, using no euphemism, "Did you have sexual intercourse with her?" The narrator added: At that, (i.e. after his confession) the Prophet ordered that he be stoned (to death).
(Sahih al-Bukhari, Volume 8, Book 82, Hadith 806, 810, 812-14)
(Sahih Muslim, Book 17, Hadith 4202)
(Abu Dawud, Book 40, Hadith 76)
(Miskhat ul masabih, Volume 2, Hadith 3403)

The Meriam Ibrahim Case: A General Overview

The Chronology of Events

free Meriam
Image Source:

Sudan Flag
Image Source:
May 2014
On 11 May 2014, Meriam Yahia Ibrahim was found guilty by the Al-Haj Yousif Criminal Court of charges under the Sudanese Penal Code (1991), Articles 126 for the crime of ridda (apostasy from Islam) and article 146 for the crime of zena (unlawful intercourse in the act of adultery).  The Penal Code, Article 126, states:
(1) Every Muslim who advocates the renunciation of the creed of Islam, or who publicly declares his renouncement thereof by an express statement or conclusive act, shall be deemed to commit the offence of apostasy.
(2) Whoever commits apostasy shall be given a chance to repent during a period to be determined by the court; if he persists in his apostasy, and is not a recent convert to Islam, he shall be punished with death.
(3) The penalty provided for apostasy shall be remitted whenever the apostate recants his apostasy before execution.
The Penal Code, article 146 states:
Whoever commits the offence of adultery (zena) shall be punished with:
a) execution by stoning when the offender is married;
b) One hundred lashes of the whip when the offender is not married;
c) The male non-married offender may be punished, in addition to whipping, with expatriation for one year".
Her husband, Daniel Wani, a US citizen, was not found guilty, but Mrs Ibrahim was sentenced to 100 lashes for the zena crime and death by hanging for the ridda crime. These are Shari’a Hudud punishments. She was detained in the Omdurman’s Women’s Prison, with her 20 month old son, Martin Wani, and on 27 May, whilst shackled, she gave birth to a daughter, Maya Wani.

On 22 May, Mrs Ibrahim’s lawyers filed in the Sudanese Court of Appeal, in the Khartoum North and Sharg-el-nil Criminal Circuit, and claimed that the lower court had made errors in both procedure and merit. It was argued in the defence petition that the court made a procedural error in that it did not have jurisdiction to hold the marriage null and void, and that the Personal Status of Muslims Code 1991 contained no conclusive provision banning such marriage (Christian and Christian, see below). Further, Article 61 of the Code establishes that, “a void marriage does not yield any consequence of marriage,” and yet, it was argued, “this judgment has impacted directly on the Appellant, her child and her [then] unborn baby.”

As to the merits, after stating that there is “no compulsion in religion” (Surat Al-Baqara, verse 256), the defence brief identified that Mrs Ibrahim had been a Christian who attended Khartoum Catholic Church, and met her husband whilst a practising Christian. Her marriage was conducted in public at the church on 19 December 2011, and the authorities only became aware of the Ibrahim family in September 2013 when a man claiming to be her brother, informed the authorities that she had married a Christian and that she had committed adultery. It was the misrepresented position of her personal faith and beliefs that set in motion the horrific events that followed.

Mrs. Ibrahim’s lawyers, along with the NGOs, Redress, the African Centre for Justice and Peace Studies, the Sudanese Organization for Development and Rehabilitation, the Sudanese Human Rights Initiative and the Justice Center for Advocacy and Legal Consultancy, submitted a Complaint on 2 June 2014, with the African Commission on Human and Peoples’ Rights. As the African Commission did not provide a public pronouncement on the case, the defence filed an Urgent Appeal on 10 June, with the Special Rapporteur on Women’s Rights, Soyata Maiga. It was claimed that Sudan had violated the African Charter on Human and Peoples’ Rights (“ACHPR”).

Image Source:
In essence, the claims were that Mrs Ibrahim suffered gender and religious discrimination under ACHPR, Articles 2 and 3, which states:
Article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any  other opinion, national and social origin, fortune, birth or any status.
Article 3 (1) Every individual shall be equal before the law, (2) Every individual shall be entitled to equal protection of the law
It was claimed that Meriam and her family suffered torture and ill-treatment under Article 5, which states:
Article 5: Every individual shall have the right to the respect of the dignity inherent in a human being and to  the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. 
That her right to liberty and security of the person had been violated under Article 6, which states:
Article 6: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Her right to a fair trial had been violated under Article 7, which states:
Article 7: (1) Every individual shall have the right to have his cause heard. This comprises:
a. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
b. The right to be presumed innocent until proved guilty by a competent court or tribunal;
c. The right to defence, including the right to be defended by counsel of his choice;
d. The right to be tried within a reasonable time by an impartial court or tribunal.
(2) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an  offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
It was claimed that her freedom of conscience and religion was violated under Article 8, which states:
Article 8: Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms. 
Furthermore, her children’s rights were violated, contrary to Article 18(1), which states:
Article 18: (1) The family shall be the  natural unit and basis of society. It shall be protected by the State  which shall take care of its physical health and moral.
(2) The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
(3) The State shall ensure the  elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.
(4) The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

As these appeals were pending, there was an immense global outcry by politicians and civil society, and on 31 May, Abdullahi Alazreg, Under-Secretary of the Sudanese Foreign Ministry, appeared to speak out of turn as he indicated that Mrs Ibrahim would be released. However, the domestic courts, and the African Commission, were still considering the case and so this statement was premature.

Meriam and family
Image Source: Alumni Elshareef Mohammed
June 2014
Then on 22 June, the Court of Appeal, Khartoum North and Sharg-el-nil Criminal Circuit, quashed the 11 May Al-Haj Yousif Criminal Court sentence, and so Meruiam and her family were free to leave Sudan. Following her release from prison on 23 June, Meriam, her husband, Daniel Wadi, and their two children sought refuge in the US Embassy in Khartoum. On 24 June, she obtained an official visa and the family attempted to fly to the United States, but were detained by the National Intelligence Security Services (NISS) at Khartoum airport. Meriam was charged with falsifying a South Sudan emergency travel document. If convicted she faced a prison sentence of up to seven years.

Free Meriam Collage
Image Source: Miss Emily Clarke -
The global media campaign intensified. On twitter and facebook, “#savemeriam” and “#freemeriam” were “trending.” There were many “Free Meriam” campaigns initiated, including by Amnesty International and Emily Clarke’s petition, which both gained over 1 million signatures.
This significant civil society pressure helped strengthen political diplomacy. Many individual governments spoke out against the initial sentence and her re-arrest. For example, Mark Simmonds, Parliamentary Under Secretary of State for Foreign and Commonwealth Affairs, called for Sudan to respect Meriam’s human rights. Then the FCO and the British Embassy in Khartoum closely monitored the situation and provided advice to Meriam’s lawyers.

July 2014
In the United Nations, Rupert Colville, the spokesperson for the UN High Commissioner for Human Rights, voiced the UN’s, “deep concern about the situation of Meriam Ibrahim.” In the EU, following the EU Presidency’s of the Parliament, Council and Commission, expressed their “deepest dismay,” at Meriam’s inhumane treatment, the EU’s European External Action Service raised Meriam’s plight in the UN Human Rights Council. The European Parliament then adopted a resolution on the case on 17 July.

During the bilateral and multilateral initiatives, Lapo Pistelli, the Italian Deputy Foreign Minister visited the region, and it is now clear that the Italian government performed a very significant role in the subsequent quashing of the charges, the family obtaining new visas and flying out of Khartoum late on Wednesday 23 July. Their plane landed at Rome’s Ciampino airport on Thursday 24 July, and the Ibrahim-Wadi family had a meeting with Pope Francis at his Santa Marta residence.

Mr Lapo Pistelli told Vatican Radio’s Susy Hodges, that the dialogue with the political authorities in Khartoum had been very fair and that President al-Bashir had stated Sudan had to, “rethink the Constitution and the Penal Code, and it is highly likely that the issue of apostasy will be modified and deleted.”

Susy Hodges asked, “Presumably…we have to thank the international outcry that broke out after the death sentence?” Pistelli answered, “Yes…the international attention given by the media has helped all the efforts of the international community or the American government or the Italian government, to be successful.”

August 2014
On 1 August, Meriam and her family arrived in New Hampshire to begin a new life, and whilst welcoming her on a brief stopover in Philadelphia, Mayor, Michael Nutter, described her as a ‘world freedom fighter.’”

This case, and the international exposure it has received, has demonstrated that there are serious questions concerning women’s rights, religious freedom, the protection of the family, and the welfare of children, which the government of Sudan must address. If there is not legislative change to remedy these deficiencies, it is hoped that the lower courts in Sudan will adhere to this Court of Appeal decision and protect others from the horrific treatment which the Ibrahim-Wani family has recently endured.

Furthermore, this human rights success story cannot be attributed to one fora of power or one single discourse. It is the weaving together of legal activism, political diplomacy and a unified civil society voice.

The global support for Meriam’s lawyers, the personal safety of the family provided by the US Embassy, the regional, and governmental diplomacy, with the important role of Italy, all came together to ensure that further gross human rights violations did not befall the Ibrahim-Wadi family in Sudan.

Thursday, 12 March 2015

Exposing Injustice: the Meriam Ibrahim Case in Sudan

By Miss Nabila Okino and Miss Nushin Rahman, African Region Editors, BCU LLB Students (2013-2016)

Following the Islamicization policy in Sudan, most clearly evident in modern times beginning in 1983, the primacy of Sharia law was mandated within The Interim National Constitution of the Republic of the Sudan (2005), Article 5(1), which states:

Nationally enacted legislation having effect only in respect of the Northern states of the Sudan shall have as its sources of legislation Islamic Sharia and the consensus of the people.   

In recent times there have been many reports of abuses involving freedom of religion caused by the Sudanese government. A major example of this is the case of Meriam Ibrahim which attracted global media attention in 2014. When considering questions of national sovereignty, it is important to take cognisance of national interests, but these do not give a country licence to violate principles of international law, including international humanitarian law and international human rights law. Under the Interim Constitution human rights are recognised and protected (Part Two: Bill of Rights) and Article 27(3) states:

All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of [the Constitution]

This blog post seeks to examine the human rights issues arising from the Meriam Ibrahim case. Central to our analysis will be the relationship between religion and the state and why Meriam’s plight demonstrated to the Sudanese government, the need for legal reform.

Meriam Ibrahim was born to a Sudanese Father, who was a Muslim and to an Ethiopian mother, who raised Meriam as a Christian. In December 2011 Meriam married Daniel Wadi, a Christian man, and in 2012 gave birth to a son. She then became pregnant with her daughter late in 2013.

On 11 May 2014, Meriam Ibrahim was found guilty of riddah (apostasy) and zina (adultery) by the Al-Haj Yousif Criminal Court pursuant to the Sudanese Penal Code (1991), Article 126(1) which states:

Whoever propagates the renunciation of Islam or publically renounces it by explicit words or an act of definitive indication is said to have committed the offence of riddah.

Article 146 of the Penal Code states:

(1)(a) Every man, who has sexual intercourse with a woman, without there being a lawful bond between them; (b) Every woman, who permits a man to have sexual intercourse with her, without there being any lawful bond between them; shall be deemed to commit adultery.

The defence petition included, inter alia, the fact that the Al-Haj Yousif Criminal Courts’ judgement was flawed because of procedural errors and the inconsistency of the application of the crime and punishment under Article 126 and 146 of the Criminal Code with the Interim Constitution, Article 38, which states:

Every person shall have the right to the freedom of religious creed and worship, and to declare his/her religion or creed and manifest the same by way of worship, education, practice or performance of rites or ceremonies…

The Sudanese provision on freedom of religion is affirmed in the International Covenant on Civil and Political Rights (1966), Article 18(1) which states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

The Al-Haj Yousif Criminal Court found Meriam Ibrahim guilty of both the charges of apostasy and adultery. However, we argue that this decision was based upon provisions of Sharia law, as articulated in the 6th century, instead of the evolution of Islamic cultural values consistent with certain 21st century interpretations of both Islamic law (Fiqh) and international human rights law.  

Part of the modern interpretation of the Sudanese criminal justice system is that it must be placed within the human rights context mandated within the African Union. Meriam’s appeal to the African Commission on Human and Peoples’ Rights best articulates the human rights abuses that Meriam and her family experienced. The claims of the violations of the African Charter on Human and Peoples’ Rights, included, that Meriam was discriminated against because of her gender and religion under ACHPR Article 4, and that women disproportionately face the punishment of death and whipping for riddah and zina offences in violation of their human rights to dignity, privacy and equality; that the death penalty and whipping would have been a violation of the prohibition against torture and ill-treatment under Article 5; that because Meriam had to give birth to her daughter in prison, whilst shackled, and that her young son witnessed this event, and her husband had to endure these ill-treatments to his wife, that there was a violation of the right to liberty and security of the person.     

The crux of the matter was therefore the judicial interpretation of the meaning of “riddah” within the Penal Code, Article 126. In the trial court, riddah was interpreted in a strict dogmatic way, which in effect meant that Meriam Ibrahim had become an enemy of Islam. However, this principle of Islamic jurisprudence is more appropriately attached to the crime of “Baghi” (as in Surat al-Hujurat, ayah 9), in which a former Muslim becomes an enemy of Islam in a rebellion, uprising or an act of aggression. This was certainly not the case for Meriam. She only wanted to live in peace with her family.    

The Quran does not provide an inconclusive mandate that a person who converts from Islam to another religion should be killed. On the contrary, the Quran assures freedom of religion. This is apparent, for instance, in Surah Al Baqarah (Quran 2:256) which states that “there shall be no coercion in matters of faith.” Furthermore, the Quran has strictly disallowed the imposition of the death penalty except in specifically defined circumstances. One of them is where the person is guilty of murdering another person and the other is where a person is guilty of creating unrest in the country (like being involved in acts of terrorism etc.) The Quran says; “Whoever kills a person without his being guilty of murder or of creating unrest in the land, is as though he kills the whole of mankind”. (Al-Ma’idah, 5: 32).

There is much contention as to whether the instructions in the Hadith can be used to punish with death or merely act as a deterrent in cases of adultery (as in Surah Nisa, ayah 16-17; Sahih al-Bukhari, 8: 82, Hadith 814). This contention stems from the level of proof necessary before requisite punishments are administered. For adultery in Islamic law, four honest and upright members of the society have to see the sexual act at the same time before a person is found guilty. Bringing this level of proof in context with the 21st century, it is very unlikely that four so-called upright and honest people of society will witness an adulterous act at the same time. This brings us to the biggest problem. It is very difficult for states to apply adequate due process of law and a strict level of proof of evidence necessary in a capital trial before punishment is administered.

Therefore Sharia law is best applied through the lens of “repentance” rather than retribution. This is because the death penalty nullifies the possibility of repentance. The wonderful expression of peace and mercy in the Quran in Surat al-Ma’ida, ayah 34, states, “Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful,” and the Hadith affirms in Sunan Tirmidhi:

Aisha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him and give him peace) said: Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.   

Human rights law today has mandated the fundamental requirement of tolerance in our cosmopolitan world. The Sudanese law on religious practice is currently in violation of these global principles.  In order for Sudan to reflect a world that strives to uphold human dignity, women’s and children’s rights, and the freedom of religious faith and practice, the country must amend its constitution. Ultimately, this legal aspiration is required for the realisation of democracy and equal religious values and practice. This is inherent within the freedom and autonomy of Islam, as the Quran, Surah Al-Baqarah, ayah 256, states, “Let there be no compulsion in religion,” and we must always affirm "mercy" to the world, as, “In the name of Allah, the Entirely Merciful, the Especially Merciful,” Quran, Surah Al-Fatihah, ayah 1. 


This blog post follows the BCU City Talks event, "Meriam Ibrahim: The Case that Gripped the World," 1 October 2014, please see:

The Panel included:

The Rt Hon Baroness Anelay of St Johns, Minister of State at the Foreign and Commonwealth Office
Mr Mohamed Elshareef, Meriam Ibrahim's lawyer in Sudan, BCU Law School Alumnus
Mr Andrew Hall Q.C., Doughty Street Chambers, leading expert on African Law
Mr Lutz Oette, Redress, Drafter of Meriam's petition to the African Commission on Human and Peoples' Rights
Professor Jon Yorke, Birmingham City University, Member, The Foreign Secretary's Expert Panel on the Death Penalty
Panel Chair:
Mr Manjit Gill, Q.C. No 5 Chambers, Head of the International Human Rights Law Group
Emily Clarke also addressed the event about her petition for Meriam Ibrahim which received 1,092, 272 signatures, see Meriam Ibrahim Petition

Photos of the event: 

For additional resources on the Meriam Ibrahim case, please see Professor Jon Yorke's blog posts for the Oxford Human Rights Hub at: and