by Mohamed El-Moctar El-Shinqiti
Friday, June 13, 2008
RECENTLY, Gambian President Yahya Jammeh threatened to behead homosexuals, and two persons were arrested and are being held for trial. What is the Syariah stance on this?
For sure, homosexuality and lesbianism are heinous crimes against humanity that deserve a deterrent punishment. Muslim scholars have various views regarding the punishment of this abhorrent crime. It is high time for juristic counsels in the Muslim World to tackle this issue to reach an agreed-upon law that does suit our complicated contemporary life and situations.
I agree with president Jammeh that homosexuality is a grievous sin that a Muslim must find repugnant, and that its perpetrators do not deserve to be respected or accepted in the Muslim society. This sin represents retrogression in the sound and natural human disposition and destruction to the structure of family, which is the original unit in society. The relation between this sin and HIV/AIDS, which has killed millions of people and has caused suffering for many other millions, indicates that those promoting this sin are in fact committing a crime against humanity.
However, the Gambian president, like any other president, is neither judge nor jurist, and does not have the right to prescribe a legal punishment.
Punishments in the Syariah are not for political disputes, but they are part of a judicial system, which is maintained by an impartial independent court.
Because the Gambian president is not a jurist, he does not know that his threat to behead homosexuals has a very weak basis in the Syariah.
The juristic view on which president Jammeh threatened to behead homosexuals has no basis in the glorious Quran or the authentic Sunnah of Prophet Muhammad, peace and blessings be upon him. This will be explained as follows:
First, no legal punishment is stated in the Qur’an for homosexuality; all what is stated in this concern is the condemnation of committing it in the context of the story of Prophet Luth peace be upon him and the divine punishment his people received for committing such a hideous sin.
Second, it is not reported that Prophet Muhammad has punished somebody for committing homosexuality, a fact that Ibn Al-Qayyim has explained by saying that “this (sin) was not known among Arabs” during the lifetime of the Prophet.
Third, there is no authentic hadith reported from the Prophet prescribing a punishment for the homosexuals. However, the Quranic description of homosexuality as a fahishah (Arabic for: abomination), which is the same description of zina (Arabic for: adultery or fornication), hints that both sins entail inflicting the same legal punishment.
Fourth, scholars of Islamic schools of jurisprudence have different views on the punishment to be inflicted for committing this sin: Some say that the punishment is the killing of the perpetrator, others say that it is the same as in the case of zina, and a third party are of the opinion that the judge may afflict a lower discretionary punishment, such as imprisonment.
However, punishing the homosexuals by stoning them to death is supported through only two weak hadiths, on which the scholars who adopt the views of stoning and killing build their opinions. The first hadith is narrated on the authority of ‘Abdullah ibn ‘Abbas that the Prophet said, “If you find anybody committing the act of the People of Luth (i.e. sodomy), then kill the one doing it and the one with whom it is done.”
This hadith is recorded by Imam Ahmad, Imam Abu Dawud, and Imam At-Tirmidhi among others. However, Al-Bukhari, Yahya ibn Ma’in, An-Nasa’i, and Ibn Hazm impugned the authenticity of this hadith. The second hadith is narrated on the authority of Abu Hurayrah that the Prophet said about the one committing sodomy, “Stone the upper and the lower (i.e. both persons committing it).”
This hadith is recorded by Ibn Majah, Abu Ya’la, and Al-Hakim; however, At-Tirmidhi and Ibn Hazm, among others, impugned the authenticity of this hadith. In his book Ahkam Al-Quran, judge Abu Bakr Al-Jassas commented on this hadith stating that the narrations of two of the narrators of this hadith “are not reliable by any means, and no legal punishment can be prescribed based on them (i.e. on their narrations).”
Al-Hafiz ibn Hajar summarised the whole issue in the chapter of hudud (Arabic for: punishments prescribed by Islamic Syariah) in his book Fath Al-Bari, saying, “The narration reported on killing the one doing it and the one with whom it is done or stoning them is weak”.
In fact, no scholar of the science Hadith deemed authentic the aforementioned two hadiths except Ibn Hibban among the early scholars and Al-Albani among the contemporary ones. Ibn Hibban deemed the hadith of Ibn ‘Abbas authentic, while Al-Albani deemed Abu Hurayrah’s hadith authentic.
However, it is known among the scholars of Hadith that Ibn Hibban’s views are unreliable if not substantiated by other scholars of Hadith in deeming hadiths authentic. In addition, Al-Albani’s opinion cannot stand against the doubts Al-Bukhari, Ibn Ma’in, Ibn Hajar, and other prominent scholars of Hadith raised as to the reliability of the narrators if these hadiths. In brief, if these hadiths were not weak, no disagreement was to be among scholars on the punishment of sodomy since the time of the Prophet’s Companions till now.
I would like to conclude this discussion by stating some important points on the historical context we are experiencing now. First, it should be stated that sodomy (or homosexuality) is a wicked and grievous sin and a crime against society, but beheading or stoning those committing it are punishments that have no foundation in the Quran or the authentic Sunnah of the Prophet.
All what can be said is that sodomy is a fahishah, the same way the Quran described zina, so it has the same legal punishment — the lashing of the perpetrator one hundred times in a public place as stated in surah An-Nur, or imprisoning and punishing him as stated in surah of An-Nisa’.
Second, all the juristic views stating that the homosexuals are to be killed, burnt, or thrown from a high place, have no sound legal foundation, though they show how much the early Muslim society was disgusted with such a wicked, immoral practice. However, legal judgments are based on divine revelation not on the tendencies of societies.
Third, it should be stated that Islam is a religion of mercy, and the society has the duty of giving the guilty an opportunity to repent and correct his or her way. In the crime of murder, which is the most heinous crime, Islam opens the door to forgiveness and paying blood money before afflicting the qisas (Arabic for: retribution).
Thus, jumping directly to the punishment indicates that the societal system has failed, and that there is a disorder in the educational thinking in the society.
Fourth, reviewing the Islamic criminal jurisprudence has become a must, because some of the punishments commonly stated in the books of jurisprudence are based on weak traditions, such as stoning the adulterer and killing the apostate. Without a serious review of these punishments, we would always find some enthusiastic persons who hurt the image of Islam using weak juristic views, though intending the good for Islam.
Fifth, independence of judiciary has become an urgent matter that should not be delayed. This is because legal punishments are the work of independent, impartial legitimate judiciary; politicians have nothing to do with such punishments.
Sixth, legal punishments need to be codified through constitutional texts and laws approved by parliaments. This also should be based on legal foundation, scholarly study, and a scrutinising review of the rich jurisprudential Islamic heritage. By doing this, we will save Islam from the political and legal chaos it is experiencing now.
In conclusion, Gambian President Jammeh deserves respect for his enthusiasm for Islam and virtue in his society.
However, before iterating his threats, he needs to wait and make sure of the legal foundation of them; otherwise, his enthusiasm may prove counterproductive, as happened with others, and, thus, harm the Muslim societies, defame the Islamic message, and contradict the Islamic concepts of justice and punishments.
The Writer is director of the Islamic Center of South Plains, Lubbock, Texas, US