Authors:  Liv Tønnessen and Akram Abbas

The Global Campaign to Stop Killing and Stoning Women was launched in 2007 to end the misuse of religion and culture to justify stoning of women.  The campaign’s goal is to ban stoningin countries where it still exists in law. Among the key partners of the campaign is Women Living Under Muslim Laws. According to Islamic criminal law, sexual intercourse between a man and woman outside a valid marriage contract is a crime. The punishment is typically stoning to death for married offenders. This is codified into law in Sudan, Pakistan, Iran, Indonesia, Saudi Arabia, the United Arab Emirates, and Nigeria. In some of these countries, there are frequent cases of stoning for adultery and fornication.

We welcome the campaign to stop stoning of women, but in Sudan it is off target as the stoning sentence has never been put into force since it was first codified into law in 1983.

But first, what does the letter of the law state? Under Sudan’s Criminal Act (1991), adultery and fornication (zina) is a crime. Zina is part of the Hudud punishments withfixed punishments derived from the Islamic texts. According to Sudan’s interpretation of the Islamic texts, it must be proved by confession before the court, the testimony of four adult men, and pregnancy if the woman is unmarried. The punishment is stoning to death for married offenders and 100 lashes for unmarried offenders. Our study of Sudanese court cases from 1983 until now show that there have been very few cases where the Sudanese courts have sentenced married women to stoning for adultery and fornication. In the few cases where it did occur, the higher courts interfered on behalf of the woman and stopped the execution of the stoning punishment. The last case that received international attention was Mariam Yahia, a mother in her 20s which faced apostasy and adultery charges. All cases of this kind are always referred to the higher court and all stoning sentences have been stopped.

Local activists in Sudan have joined the global campaign with funding and training from transnational organizations. While the effort to abolish the stoning article in Sudan’s Criminal Act is commendable, we believe that it is not the most precarious aspect of the law at this point in time. While the stoning sentence has never been executed for adultery cases, the 100 lashes are frequent. Sudan follows the Maliki school of Islamic jurisprudence, in which pregnancy in an unmarried woman is considered evidence of zina. In the other three schools of Sunni Islamic jurisprudence, pregnancy does not constitute proof for fornication. The presumption of zina on grounds of pregnancy puts women and girl defendants in a disadvantageous position compared to men and boys accused of the same offense. Any childbirth in a government hospital where there is no father to put on the birth certificate must be reported to the police, who will apply 100 lashes for the unmarried woman. Sudanese activists and politicians interviewed point out the injustice of including pregnancy as evidence of fornication when there are established interpretations of Islam that says otherwise.They ask: “why take the strictest interpretation of Islam, when a more lenient and women-friendly reading of the text is widely accepted and practiced in other Muslim countries?”

Over the last several years, the reform of criminal law has become a priority for Sudanese women activists. The Interim National Constitution of 2005 following the peace agreement, which included a Bill of Rights for women, sparked a review of Sudan’s laws, including the Criminal Act. But the focus of much of this activism has not been on the stoning article, rather on the diffusion of rape and zina in the law. As evidence for widespread sexual violence in the Darfur conflict was put on the table, the problematic definition of rape in the law was put on the activists’ agenda. Rape is defined as zina without consent. This implies that first evidence for zina must be established, then the lack of consent. In addition to pregnancy for unmarried girls, the evidence for zina are 1) four male witnesses and 2) confession. The evidentiary rules applying to adultery and fornication are historically based on the rationale in classical Islamic law that there should be indisputable evidence for the severe punishment. When applied to rape, however, it contributes to impunity for rape as a conviction can realistically only be secured where the perpetrator confesses to the crime. The woman is the one who has to bring evidence that (a) the man has committed zina and that (b) she did not consent. Failure to prove both (a) and (b) means that the man walks free from the punishment, but she is still subject to it. Even in situations where the rape is not reported to the police and no court case is initiated, an unmarried woman who becomes pregnant because of rape is at risk for charges of zina. The consequence, in the words of an activist, is that “if you cannot prove rape, you become the perpetrator.” 

A campaign must always be embedded in local contexts in close dialogue with how the law is implemented. While it is clearly problematic from a human rights perspective that Sudan’s Criminal Act stipulates stoning for adultery, it is not the most pressing element in the law as it has been practiced in Sudanese courts. We encourage transnational women’s organizations and aid organizations to take this into account before funding a campaign to end stoning against women in Sudan. In the opinion of many Sudanese women activists, this campaign is off target. In their opinion, they do not have the luxury of working to abolish a sleeping paragraph in the law, when more pressing and immediate issues needs to be fought for.