September in a nutshell

I have not been able to put together a blog this month and did less last August due to workload I had to deal with both at work and home. It has been very difficult to do so despite so many events unfolding before our eyes elsewhere in the world.

My Legal Practice Course is taking its toll but hey that is a good thing, I got to do this time. I cannot continue banking things for later.

What I want to do in this blog is to just comment on those popular events that have taken place in this month of September hitting headlines elsewhere in the world.

 But before anything else, Big cheers out there to all Moslems in the world who celebrated their Eid ul fitr marking the end of fasting in the month of Ramadan. This year too has seen so many forums on the actual sighting of the moon. Certain quarters believe that the sighting is just being blindly followed and not evidenced by real sighting of the said moon. Saudi Arabia is a culprit on this but this has been so for the past decade. Most parts of the Muslim world follow Saudi Arabia in almost everything including the sighting of the moon and these resenting groups have been there all the time. I did ask one cleric regarding this; he said to me that I should just get over it. I am hoping that there will be a solution to all this.

I begin with the United Nations, a speech made by Iran President Ahmedinejad, who claimed that September 11 terrorist attack on the Twin Towers is an American government’s assault on its people led by former President George W. Bush. 

A number of delegates left the building in protest during the speech as they did not want to associate themselves with this kind of propaganda. Watching that on a local news network television, I was left inquisitive, pondered with so many questions. Most importantly, I wondered as to why some of the delegates remained seated and never seem to be bothered or taking an offense. As Netanyahu reiterated in his speech, that he expected all the delegates to have boycotted the speech and never let the Iranian president finish his speech.

Was he exercising freedom of speech? To some people including Ahmedinejad himself feel that way, they think they can do so as of an absolute right although this is not so. To others, he is a hero who could provoke America and make fun of its terrible incidents like that of September 11 right there in America. He is a brave man to sympathizers.

But does this make the United Nations an organisation that tolerates and encourage the exercise of freedom of speech on its corridors even if it is offensive in nature. My understanding is that this should be the case, if every speech and president was to be boycotted then what sort of an organisation would make the UN? United Nations knows that some countries are led by mad dogs and there is nothing they can do to deal with their issues. They can be isolated elsewhere but they should be given an opportunity of being heard in the United Nations like anybody else.

Still at the UN headquarters, the Palestinian bid of an independent state, President Abbas asked the United Nations to recognise Palestine as a sovereign state. This did not go down well, United States clearly expressed its position and some analysts claimed that president Obama was just destroying his historical speech he made in Cairo a year and half ago on Palestine.

Meanwhile the Israel Prime Minister urged United Nations to consider the dangers of seeing this bid through. As we expected the United States to veto, the only remaining question was to see which side the United Kingdom will take. What I make out of all these is that the Palestinian approach is that of moving on, and, peace process cannot be swayed by it.

In the same month we have seen the former leader of Egypt Hosni Mubarak bedridden to answer charges of corruption and murder in court. Shocking pictures of once the mighty leader of a great nation.

In North Africa, Libya’s Moammar Gadaffi’s regime finally disappeared; the Interim National Consultative council has moved its capital from Benghazi to Tripoli showcasing victory. The President received a warm welcome on arrival and promised to consolidate the broken relationship among the citizens and let there be peace again. The West has reiterated its support to rebuilding the country. 

While I am sceptical, I would have loved that Gadaffi be allocated wherever he is and put to task for the atrocities he has caused. If he is left out there how do we expect the people of Libya to move on while the beast is still at large?

In Zambia, the opposition candidate, Michael Sata, claims the hot seat of president in the General Election last week. To me Sata for the past years to last week has been considered as an underdog who posed no threat, despite being called King Cobra for his fire spitting tongue, to the sitting president of the country. Although his academic and life experience record is not attractive and might not look eye catching but no one could stop him from accomplishing his mission. Indeed colleagues at Victoria Station in London, where he used to work as a floor sweeper would be happy for what he has accomplished.

In Southern Africa today, most of surrounding countries neighbouring Zambia are either with a good president or a bad president whose head is sought come the General Election. As someone might have said that the wind of change is blowing again over Africa. I just hope this time it will leave behind useful debris than it did last time, it gave people hope that things were to change for the better and make the motherland once again a better place to live. But this is not the case today in Africa, leaders who take a country and destroy it until you feel like there is no hope of restoring this country… looting some prefer to call it. Citizens are reduced to beggars with no sense of hope that tomorrow will be different.

Injustice

Watching this week a minute appeal run on a national television to save men, women and children who are heavily affected by famine in Africa, something hit me in the face; I could not believe my eyes. It’s just appalling and unbelievable that even today in the 21^st century, some people somewhere in the world cannot have access to their basic familial requirements.

Why is this happening and why should people be subjected to such suffering, children in particular, whose fault is that? I was born and raised in Africa in a small house with a number of brothers and sisters; therefore I am aware of how bad things can be sometimes. I remember, we never used to ask for breakfast or lunch but we expected that at some point there will be something to get us go by. We did this because our both parents had no meaningful income and unemployed therefore bread winning was almost everybody’s responsibility including us children.

Now this situation in Africa brings memories back, to seeing those children dying before their mothers is something that reminds me that these parents are indeed helpless and cannot be  blamed for not trying because they have nothing left to save both their lives and the children.

When I was a kid, this kind of suffering seemed temporal and I spent day and night dreaming of having to wake up one day with a good life that’s enjoyed by our fellow kids elsewhere in the world. But I realise now that this was just a fantasy and seeing Children dying from starvation and malnutrition in Africa today tells me the same story that the problem is still there 30 years on.

The question is who should take a blame for all these untimely deaths? I reckon the culprit is an injustice that has rocked most African countries, the rich gets richer and the poor get poorer?

Injustice generally refers to misuse, abuse, neglect, or misfeasance that is uncorrected or else sanctioned by a legal system. It is gross unfairness suffered by the electorates who put these people to power and contribute to the well being of the country through their income tax.

In Africa, Political injustice is the most contributing factor of all the suffering that we have witnessed in this century. People are denied and deprived of their social and economic rights because of their mere choice of belonging to a certain group or having a different political ideology to that of the state.

Most people are impoverished not as a result of famine or anything but because of oppression and injustice by dominant groups.

No wonder, Somali militias played down the reports that the country is facing the worst in terms of food shortage. They deny that this is not true and maintaining that Western countries are exaggerating the extent of the problem and shouldn’t be believed. In Ethiopia, allegation of aid diversion and misuse levelled against the Ethiopian Government, instead of putting those funds where they are needed most and alleviate human suffering, they use international aid in cramping down political opponents and highly disregard the rule of law.

There are no food stocks, no good hospitals and personnel, no better schools and poverty is beyond belief.

It is injustice if people cannot be provided with their basic needs in any state or country while their leaders are massively enjoying the same. Innocent children are left to die with no fault of their own just because the country is so corrupt to an extent of even selling their own food stocks.

 It is injustice if the state fails to provide better education system in the country while their children and relatives are enlisted in overseas institutions just because they can afford it.

It is injustice when hospitals are turned into mortuaries where people just go to die because of lack of medical personnel and medicine.

Citizens fighting to get on the bus, while the president and his family is riding a convoy of the most expensive automobiles in the world.

Until injustice is stamped out entirely in Africa, African people shall remain in repression and suffering. Development will be the word they would live to hear every five years when a political leader is renewing his term in power.

The Holy Month of Ramadan

 Fasting in Islamic Jurisprudence

In Islamic Jurisprudence, Fasting is divided into two; Obligatory fasting and Optional (Man dub) fasting. In the first category there are also three types; what is obligatory because of time/season e.g. fasting in the month of Ramadan, what is obligatory because of the defect or reason e.g. fasting to compensate unfulfilled vow/oath made to oneself. Taking an oath in the name of Allah is in actual fact making Allah a witness to ones actions and going against that oath would be belying Allah.

My blog will focus on the fasting that occurs in Ramadan which is obligatory because of the time or the month of Ramadan according to Islamic calendar. It is one of the basic beliefs or acts that a Muslim is supposed to do.

Sources of Fasting

The Holy Quran 2:183: O you who believe! Observing the fasting is prescribed for you as it was prescribed for those before you, that you may become the pious Al-muttaqun.

The Sunnat: The sayings of the prophet Muhammad (Peace be Upon Him), where he is reported to have said “Islam is built on five”, meaning five pillars of Islam and one of these pillars is fasting in the month of Ramadan. He is also reported to have said to an Arab villager (bedouin) when he was asked as to what is required of him, he replied “and fasting the month of Ramadan”.

Consensus: All the Jurists/scholars of Islam agree to its obligation and no difference in opinion is reported from any of them. They agree that fasting is prescribed to a mature Muslim, intelligent, not on a journey, fit to fast which excludes those suffering from different illnesses and menstruating women.

In the Muslim world the Holy Month of Ramadan is more of a rejuvenating time and religious festival than being apprehensive about the consequences of fasting. Ramadan requires a Muslim to abstain from food and any worldly desires/materials from early Morning Prayer till the sunset for the whole month of Ramadan. It is one of the five pillars of Islam and obligatory in its observation as prescribed in the Holy Quran except those whose lives are in peril due to illness or on a journey.

Ramadan emanates from Arabic word ramd which stands for dry sand, drought, emptiness and dryness. It denotes the fact that by observing fasting abstinence from all worldly desires including food is a fundamental requirement. It was prescribed to Muslims and became obligatory in the second year of the prophet’s migration to Medina.

It is always regarded as the tool that assimilates an individual who is fasting with those that cannot because of illness or in famine. Fasting is not only a supplication but it’s a disciplinary act imposed on the Muslim. It is the only way of connecting with those that are suffering; in return they take care of them by sharing the little that Almighty God has bestowed upon them. It is always said that you cannot understand the suffering of others unless you become part of them. Fasting is considered as a means of practicing self-control, a means of knowing what hunger is all about. Showing sympathy to the poor and the needy and the way of thanking the Almighty God for everything you have received in this world.

Everywhere I have travelled including Saudi Arabia, Muslims at this time of the year open their doors to accommodate and welcome everybody to join them and eat together during Iftar (breaking the fast). It is the month of unity, good deeds and more charity and no one would want to lose this chance that comes once in a year. But work to do more just in case he never lives to seeing another year.

As a Muslim therefore it is important to observe fasting with pure intention of pleasing the Almighty God and not anyone else. Being wary of the fact that Fasting is the only act of worship that God Almighty reserves the right of ownership and mere declaration of fasting does not make it good or acceptable. It is God and God alone who knows as to whether your fasting is good or not. As a way of an example you may go behind your colleague’s back, drink or take some food while pretending that you are still fasting. And no one can ever judge you differently because they have no clue as to what you have just done but only God the Almighty is aware of your actions.

Why do people protest?

In this blog, I would like to explore reasons why some of us feel the importance of protest and demonstrations and take to the streets. Recently there have been fully blown demonstrations and protests in different countries of the world. To my surprise the protests have not only hit third world countries but also super power countries of the world, countries with impeccable record of economic performance as well as democracy and rule of law.


In the United Kingdom, students tuition fees hiking plan triggered student protest, Conservative Government cuts plan also triggered protests from the public. Protest I think, is the only way of expressing resent from those policies that would ultimately affect our well being or acts that are already encroach our birth rights.



Demonstration is a mass expression of public sentiments: popular celebration, anger, presentation of political demands, or protest (a march or meeting of some kind). It is a right governed by and enshrined in the constitution that can be exercised at anytime.
In the 21st Century most of these demonstrations have revolved around presentation of political demands or protest. In a democracy, there is always a standard of governance that is anticipated from political leaders in control. These standards are fairly explained in their manifestos which when presented to the people they are done in the form promises, the government of the day is expected to uphold and live up to that promise.


It is not true that the police or powers that may be should have the power to stop or authorise the protest but it is important that the law enforcement agencies be notified about their taking place.


Before the victory of the socialist system, the political demonstration was a form of revolutionary struggle by the proletariat and the toiling masses. The development of the revolutionary movement was accompanied by political demonstrations; they were already a widespread phenomenon in the 17th- and 18th-century epoch of bourgeois revolutions, especially in the years of the Great French Revolution of 1789-94. In the 19th century, the political demonstration became an important form of working-class political struggle. Great political demonstrations took place during the struggle of English workers for electoral reform, the Lyon weavers uprising of 1831-34, the Chartist movement, the Revolution of 1848, and the Paris Commune of 1871.
Political demonstrations took on an especially sharp character in the imperialist epoch and were widespread in both the metropolitan centers and the colonies as a powerful form of struggle against imperialism, colonialism, racism and the unleashing of imperialist wars, and for peace and socialism.


Nelson Mandela and black South Africans used protests and demonstrations to stamp out the brutal regime of Apartheid White rule. In Ukraine and elsewhere in the world demonstrations have helped to sort out various political problems resulting from unfair and rigged elections.


Governments of the world cannot therefore rule out the possibility of having their citizens demonstrate against their policies, economic failure, nepotism/racism and rampant human rights violations.
Mass demonstrations follow where the government has conspicuously failed to accommodate the wish of the people who ushered them to power. As an example in Egypt, people were tired with rampant corruption and abuse of power from Hosni Mubarak and his government. In the Republic of Malawi, people are tired of unchecked nepotism within the ranks of the government, Forex shortage, fuel and abuse of power by the president and his political aides. There is also mass human rights violation which goes to the heart of those absolute liberties that cannot be derogated no matter what. The leader has ignored the wish of the people who voted him to power and forgotten his responsibility of upholding the rule of law.


Protest is not civil unrest but they are synonymous, political leaders would use to suppress protest in fear of civil unrest but they are not necessarily the same unless where the government does not seem to listen and not seen to be doing something about the public displeasure.


Civil disorder, also known as civil unrest or civil strife, is a broad term that is typically used by law enforcement to describe one or more forms of disturbance caused by a group of people. Civil disturbance is typically a symptom of, and a form of protest against, major socio-political problems; the severity of the action coincides with public expression(s) of displeasure. Examples of civil disorder include, but are not necessarily limited to: illegal parades; sit-ins and other forms of obstructions; riots; sabotage; and other forms of crime. It is intended to be a demonstration to the public and the government, but can escalate into general chaos. This is what happened in Egypt at Tahrir Square, Mubarak took the voices of the public for granted but ultimately was forced to resign and held responsible for those who lost their lives under his authority.


Finally I think it is a blessing in disguise to have people demonstrate against their governments. It is the only way of having the government to connecting with its people at a national level and should not look like a protest to depose that government or the president unless the president does not want to listen to their voices and their sentiments. 
To all political leaders of the world I say sort out the mess or people will not stop demonstrating because it is of right to do so.

Comparative Law: Necessity in Islamic Law and English law

There is a general concept similarity in what constitute a defence of necessity in English and Islamic legal systems. In both legal systems, the individual committing an offence has to be driven by a circumstance of necessity. Duress of circumstance in English law or Ikrah in Islamic law also falls under this category of law.

Although English law has over the years been reluctant to accept and apply it as a defence until recently, the courts are ready to accept it as a defence of some offences in criminal law. Duration and the limit of how far an individual can go in order to eliminate the circumstance is one of importance and the type of the offence involved is very crucial when it comes to accept the defence of necessity. Therefore a mere circumstance of necessity would not constitute the defence.

The defendant must stop committing the offence as soon as s/he reasonably can as duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased: R v Pommell. I will demonstrate below how this also applies in Islamic law but it is worth remembering that if the court is satisfied an acquittal is the only outcome. And as in Islamic law no sin/offence is said to be committed under necessity.

 I think the main reason is that for someone to have sufficient motive and intention to commit an offence or break the law all the circumstances to it must be under his control not faulting other operatives that led him to lose his control to do what he did. More recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury.

The three principles of the defence and the two-stage test were explained by the Court of Appeal in R v Martin (1988). The word necessity implies a situation where having explored all the available options one would not do without having to commit the alleged crime. This principle is a general defence in English law in certain offences and the leading case is R v Dudley & Stephens (1884), where two shipwrecked sailors killed and ate the cabin boy. They were convicted of murder. This case was affirmed by the House of Lords in R v Howe (a case on duress by threats) and until recently it was commonly thought that a general defence of necessity did not exist in English law.

 In Islamic law, necessity arises where an individual is forced by circumstances to have done what he did. Necessity or Dharurah as it is called in Arabic is governed by the Quran and the Sunnat and their application has been an extensive area where Jurists of the four schools of Islamic Jurisprudence have differed on what really constitute a defence of necessity. This is clearly seen in their various books of Islamic Jurisprudence belonging to these schools; I will not attempt to discuss them individually but will suffice to flag up two or three correct opinion on the subject.

There is a leading and principle maxim on the law of necessity in Shariah which has various minor branches protruding from it. It has a general application and accepted in shariah law on issues such as Jinayaat (crimes), muaamalat (transactions) and other religious aspects observed by individual such as consuming wine for medical purposes when advised to do so by physicians or doctors.

Examples of offences under this category; eating anything from animals slaughtered not in the name of Almighty as prescribed in the Quran (haraam meat), quenching thirst with wine and denouncing Allah under duress of circumstances. The maxim of “Necessity makes things that are prohibited by the law not prohibited” is sourced from the verse in the Quran 5:3, “…….but as for him who is forced by severe hunger with no inclination to sin (such can eat these above mentioned meats) then surely, Allah is Oft-forgiving, most merciful”.

 It is also worth mentioning that necessity in Islamic law includes Dharurat, haajat, makhmaswat and all these names are used in the Quran and sunnat to imply necessity. Another maxim emanating as a branch from the leading maxim above is that “need is of the same category as necessity”. It illustrates that there may be a difference between “necessity” and “need” but dire need may be of the same category as necessity.

Consequently, need may be a defence and generally accepted in the Islamic courts as in the examples above. Muslims are not allowed to eat pork or any extracts from it but they can do so in time of need/haajat such as the time of starvation and famine where food is scarce. The principle is that it has to be done without inclinations to commit a sin. Necessity works to suspend the law at the time the alleged sin is committed. A typical example in Islamic law among other events is that of a man who was caught stealing during the reign of Omar Bin Alkhtwaab, the second caliph. He was set free when he claimed a defence of necessity to have driven him to what he did and because at the time there was rampant food shortage in the country.

Of recent, scholars have extended this law to transactions such as mortgages and loans where in conventional banks no credit agreement comes without a requirement of paying interest on them including credit cards. Riba or usury/interest is not permitted in Islam and those who take and pay interest are considered to have waged war against the Almighty God and usury is one of the greatest sins in Islam.

The law of necessity will only apply under those circumstances if all other means of purchasing a property islamically i.e. without interest have been exhausted and there is a dire need of that property. Besides, there has to be greater harm in order to use this defence to the well being of the family and that it is very expensive to rent properties in the country. I don’t really see how a person who owns a property would use this kind of defence to buy a second home as his/her need will be out of question in this case.

 In the law of necessity there is also a requirement of directness and immediacy which was explained by the Court of Appeal in: R v Cole. At the defendant’s trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him, his girlfriend and child. The Court of Appeal held that the defence of duress of circumstances was not available. For the defendant to rely on the defence of duress of circumstances there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury.

Islamic law on Immediacy, the requirement is that whatever is allowed has to be measured according to the need.

“Double deviance effect cancels out the consequence of Chivalry hypothesis”

In Criminology, those of you with bias in the subject remember very well that we looked at two theories, double deviance and Chivalry hypothesis. They are traced in criminology through the attitude of our criminal justice on how offenders, both male and female, get treated and how these two theories influence the outcome of the verdict and the  role played by them at any stage of the process. Does double deviance cancels the consequences of chivalry hypothesis. I have taken time to read through the materials that have dwelt deeply on the subject and here I am giving you in summary the outcome of my findings. I am not going to involve myself with the sociological side of it but I will focus on what criminologists feel about the theories.

Criminology has treated women’s role in crime with a large measure of indifference. This conception maintains esteem autonomy, intelligence and force of character while disdaining women for their weakness of compliance and passivity. Treating women who conform as pure, obedient daughters, wives and mothers who benefit men and society (Feinman 1946:16)

It regards women as weak, submissive, dependent and passive. Therefore women who do not, that is, are non-conforming, may simply be one who questions established beliefs or practices, one who engages in activities associated with men, or one who commits crime (Morris)

This brings to the general assumption that women are sentenced and punished more leniently than men. Their courteous attitude is one attribute on the part of the sentencers who may explain female offending in very different terms to male offending and who may be reluctant to send women to prison, especially if they have children.

 This attitude above is called chivalrous treatment. It entails the attitude that women are far less likely than men to receive a custodial sentence, are more likely than men to receive probation or discharges and, if given a custodial sentence, are generally given shorter sentences. (Hedderman and Hough 1994)

In chivalrous theory, there is a general inability to believe that a real woman could be capable of horrible, violent acts. Real women therefore can escape and spared from harsh treatment by our criminal justice due to their perceived feminine nature. Women are less responsible for their actions and therefore less culpable and less likely to pose a continuing danger to society. Therefore women do not enter criminal justice and if they do then the judge is expected to be more lenient on them.

However, chivalrous treatment, if it exists, is likely to be far more complex than the simple lenient treatment of all women.

Other criminologists argue that chivalrous treatment is part of a bartering system or exchange relationship in which lenient treatment is extended only to certain kinds of females, according to the nature of the offence but also according to adherence to proper gender roles. some of the examples cited are such things like being married, having dependent children and being a good home maker, these all may afford a woman lenient treatment. (Criminology, Chris Hale)

I came across an American case that confirms Hale’s proposition and not necessarily chivalrous treatment. In The United States of American case, the woman, Lizzie Borden, who murdered her parents, was portrayed by the media and the defence team as of good character, had no motive of killing either of her parents. The defence described her as a Christian lady, she volunteered as a Sunday school teacher from time to time and she was the treasurer of the local Christian Endeavour Society. Besides, she was also the second daughter of a respected and wealthy family. The defence maintained that she had a ring relationship with her father therefore it was unthinkable that she did not return that love. They could not find a reason for not holding her as such.  Lizzie could not possibly have killed a man who loved her so much.

The media painted Lizzie as the perfect lady with perfect woman like qualities. Her church work and faithfulness to her family were seen as proof of her womanly nature. She dressed like a lady and her clothes were discussed extensively by the press.

The verdict was that the all-male, all-white jury couldn’t convict a rich white lady. There was a general inability to believe that a real woman could be capable of horrible violent acts. (Yale J L & Human 1996)

The manner in which she was acquitted illustrates the core principles of the chivalry theory but may be just to agree with Chris Hale that it’s just a gesture of exchange relationship that lenient treatment is extended of which Chivalry is part of.

The criminal justice system seeks to make women treatable, since this neutralises the effect of their criminality and protects the gender stereotypes upon which social order is based. These social stereotypes are described as gender contract. The effect of which the woman’s life must be represented primarily in terms of its domestic, sexual and pathological dimensions. Thus, a woman will symbolically breach this contract by engaging in criminal acts. (Women and the criminal justice, Ivan Bacik)

This theory was heavily criticised by Pollak (1950) and others, they said that crimes committed by women went largely unreported or hidden. Women were particularly skilled at hiding their crimes due to female biology. He primarily put forward a view of women as inherently deceitful and vengeful, exploiting a flow of helpless victims and aided by men’s besotted chivalry (Heidensohn 1985)

Anne Campbell (1981) in support of this idea pointed out that female suspects were more likely than male suspects to be cautioned rather than prosecuted. Official statistics show that remains true. For Pollak, one of the reasons why female crime is low and underreported was that females used sexuality to instigate crime and then captivate males in the criminal justice system to secure them lenient treatment.

Double deviance deals with an evil woman, those who have shown deviance from notions of appropriate sex role behaviour. These may be dealt with more harshly than other women and indeed men. Unlike Lizzie Borden, evil women have no media coverage or support and decidedly not ladies. The press paints these women as sexpot, a cocktail waitress, curvy, comely, flame - haired and blonde and others who may describe them as housewife with hamster morals. They are evil women because they are more cunning and deceitful than men. They are more capable of hiding their crimes, or they are more capable of convincing men that they have done nothing wrong, further the sexual nature of women makes them demonic. (Women who kill, Jones Alan)

Double deviance is seen in women who violate the traditional views of what women are. These women fall outside of what the criminal justice system describes as appropriately feminine and they offend society with their unfeminine behaviour. Men dominate, women submit, for a woman to commit crime she needs to be unnatural, she needs to emulate men.

 Conceptually, researchers have had difficulty linking femininity to criminality which is hardly surprising given that feminist criminologists have long noted the double deviance inherent in female offending. That is female law breakers are deviant not only because they have broken the law, but also because their actions violate general expectations of feminine behaviour. (Rappaport)

With that opinion therefore we will have a problem noticing as to whether the judge has been influenced by the double deviance theory or not although it is a fact that every judge has his own predilection when it comes to sentencing.

However, the law is objective in the sense that there is no discrepancy in the definition of crime dependent on the sex of the perpetrator, therefore the possibility that gender has a bearing in society’s perception of crime, which may turn influence the sentencing procedure. The introduction of mandatory and minimum sentencing in the crime (sentencing) Act 1997 is a significant restriction on the judges using their discretion in the sentence. But this does not imply that judges do not use that discretion at all, but criminal attitudes have changed, the rate of women offenders have considerably gone up.

Baroness Wooton (BJS 2010) pointed out, given that the participation of women in social, business and industrial life has been increasing steadily, one might expect a commensurate development in their criminal activities.

In 1995 and 2005 the imprisonment rate for women in England and Wales increased by 175% compared to an increase of 85% for men. (UK Crimeinfo)

This alone suggests a greater readiness to sentence female offenders to imprisonment for less serious crime. This contradicts the chivalrous view point, whereby women are perceived to be treated more leniently because men do not consider them capable of being motivated by criminality and thus are reluctant to treat them harshly.

Women have become more men like due to the women’s liberation movement - a theory known as liberation thesis. Chivalry within the criminal justice system is diminishing due to feminist calls for equality in treatment (Adler, Simon 1975)^.

Progressive changes in status for women in arenas such as the family, marriage, employment and social position brought by the liberation of women allowed them to be crime prone as men. In the way women have become doctors and lawyers at the same time women have become burglars, forgers and terrorists.

As a result of the women’s liberation movement, criminal justice personnel are no longer treating women as leniently as they once did.

What changed?

David P Farrington and Allison Morris conducted a study of sentencing in Magistrate Courts; they examined data on sentencing for 408 offences of theft in Cambridge in the same year. Some 110 of these offences were committed by women. Although the men received more 

severe sentences than women, the research found that the difference disappeared when severity of the offences was taken into account. They concluded there was no independent effect of sex on sentence severity. This may be because there have been many sentencing reform initiatives that serve to reduce inequalities in race, class and gender. The criminal justice system although being tainted with chivalrous attitudes, the emancipation of women and through their engagement in various men’s role tend to even severe crimes committed equally by men and women.

Many of the illegitimate opportunities that are open to women are types of crimes that are more apt to be investigated by the police e.g. con games and welfare frauds.

Besides, women nowadays have become less submissive than in the past and women are beginning to be dominated less by male gender, and take on roles as individuals. The chivalrous attitude of the criminal justice system is adapting to these changes and treats every case involving a woman as unique and in equal terms as if it was committed by a man.

The Difference between Islamic Sharia’h Law and the Islamic “Fiqh ul Islam” Jurisprudence

There have always been, in the western world, some misconceptions of what really constitute Shari’ah otherwise Islamic law. To many, Islamic law is just chopping hands, lashes, killing, capital punishments and restraining and confining women to their home. To some is just the law of the Quran and nothing derives from it apart from dictating a life of an individual who subscribe to the religion of Islam.

Point of correction; Islamic law is not the law of the Middle Eastern countries only or the law of the Arabs. It is the law of all the people in the world who subscribe to the religion of Islam and those who do not but may find salvation in practicing it. It is a divine law that serve to protect both life and limb, regulate individual daily transactions and relationships in any society that he or she exists.

I intend here to clarify some of the elements surrounding this law and our failure to fathom why Islamic law is not homogenous in its application. What most people do not understand or know is that as in English Law, Islamic law or Shari’ah develops through its Fiqh ul Islam or Islamic jurisprudence (the science or philosophy of law) as English jurisprudence in English Law. The misconception is based on the mistake that people do not differentiate between the two. They think Islamic jurisprudence is Islamic law and that’s a blatant mistake which needs to be rectified.

Islamic law is a revelation from Allah (God) to his prophet Muhammad (Peace be upon Him), contained in the Holy Book, the Quran and the sayings of the prophet himself called the Sunnat. This is obligatory in its implementation.

Therefore what ever is mentioned in the Quran and the Sunnat is Islamic law. But the mechanism employed in its application is Fiqh Islam or legal opinions of the four Jurists who founded the four schools of thought, a view by far thought to be parallel to the view held by the Shia Muslims of Iran. A Muslim will therefore either belong to any of those schools in practicing the religion and applying the Shariah. These thoughts are named after their founders; Hanbali, Shafii, Hanafi and Maliki.

 In Saudi Arabia they apply Hanbali, in Yemen they apply a blend of Zaidi and Shafa'i and in Africa dominated by Shafi and Maliki. And as for the Shia in Iran they follow Jafri school of thought. That is not really the Islamic Law and an individual is not allowed to apply all these thoughts at the same time on the same issue but he has to follow one of either or where there is a consensus of opinion on that particular issue.

It is also important to highlight that the differences are only on the so called branches of the law not on the actual fundamental law such as where Prayers are prescribed in the Quran and the Sunnat to be observed five times a day. No school of thought expresses its opinion on that but the disagreement revolves around time and place as well as capacity of the individual concerned.

Most scholars hold their differences as merciful gesture from Allah (God Almighty) and without it Islam would have been taken to be one of the most complicated religions on earth. The variation in interpreting the Quran and the sunnat which is seen as the only way of expressing a legal opinion is based on the understanding of the Quran and the sunnat. This therefore cannot be obligatory as there may be several opinions on one issue depending on the time and place where it was first raised.

After this small background, there is now a need to clarify at how those texts from the Quran and the sunnat are approached. There are two approaches of the text; one being taking the text as it is and follow it blindly and the second is objective approach. There is no mechanical application of the two but depending on the circumstances and where one would not find any legal basis or ground in the sunnat or would not come up with any supporting text to make sense the text in issue. In Islam you can differ in opinion, it’s accepted, it's even encouraged. And as long as you base your opinion on something, you are right. The most important thing to remember here is that Islam encourages different in opinions as long as the opinion is based on something that’s not against any text of the Quran which is the ultimate source of the Shariah. The Companions of the Prophet applied these rules to their daily undertakings and the prophet is said to have allowed it.

Islamic Jurisprudence continued to develop even after the prophet; Umar bin Khataab contributed immensely to the way the text has to be approached. Umar was a great jurist, a man of a very special mind, the second Caliph and the founder of the second school of thought, the Maqasid al Sharia (the objective of the law). And he made a lot of changes in the rules even in the Quran. There are several instances, close to thirteen different cases where Umar bin Khatab applied the objective of text in the Quran and therefore I do not really call it change. What is supposed to be the law in the Quran and the Sunnah Umar cannot change it but he applied Maqasid al Sharia al Islami, the objective of text in the Quran and Sunnah. During the time of the Prophet and the first Caliph, Abu bakr, it was almost obligatory for the treasury to pay a sum of money to those who embraced Islam at the time of the prophet according to Quran, Muallafat qulub. But Umar applied the objective text by asserting that the objective was to encourage other people to join Islam, now that Islam had spread to countries like Egypt, Yemen, Syria and Persia there was no need to effectively pay them money for accepting Islam.

The Law is still there in the Quran and the Sunnat but its application should be objective and that the authority should ensure to apply that objectively and safe guard Muslim’s money that are meant for the poor and from any abuse of the system for financial gains. You can imagine how many people would have joined Islam today for financial gains if the text was to be followed blindly.

In this area of Maqasid al Sharia there is a huge wealth. Muslims have to take extra caution before applying the law blindly without having to consider its objective and the goal it’s to achieve. Imam Malik is the only founder of a madhab, school of thought, who impelements this type of objective approach but as mentioned above, the real founder is Umar Bin Khattab and after him his son Abdullah Bin Umar, and then later Saeed Bin Mosaib and so on. The Muslim jurists who applied what we call Maqasid al Sharia. 

Imam Malik applied their opinions and developed this area of law. That's why you find in the Maliki school of thought Maqasid al Sharia. Through this, Maliki also brought about what is called Amral Ahlal Madinah (the rule of Madina) established as a source of legislation. And he established Al-Masalah Al-Mursala, the public interest of the Muslim community, as a source of legislation in Islam. All these meant to help Muslims understand fully the objective of the texts, the Quran and the Sunnat (Sheikh Zaki Ahmed Yamani, the implementation of Islamic Law in modern times)

It is therefore easy to relate this to our time and generation; the internet, automobile, information technology, planes and our lifestyles as to how Islamic law can fit in easily. Islamic law is the law of all generations and for all time. It is a fact that during the time Islamic law developed, the above things never existed and people had to exert so much effort to come to a conclusion of any emerging issues. Today in the absence of the Prophet, the caliphs and the Jurists; the objective application of the law would suffice to settle the mud and differences that have haunted us for years now unless otherwise. And I think even a stranger would find the Islamic law to be the most beautiful system of law. It is not rational to think that the Islamic judiciary would apply the Islamic law in its rigidity without having to take into considerations issues that I have raised here and Scholars being cautious of the fact that most people just follow things religiously when preaching the law or any text in the Quran and the Sunnat. Scholars should be able to clarify instances where the Quran addresses the prophet as a messenger, a judge and a head of state. There is no reason to hold these instances at par because the responsibilities here may vary from one position to the other. Let me give you an example on each; Allah addresses the prophet in the Quran to consult his companions on an issue of some importance; say sending troops to frontline with an enemy, here the responsibility is one of the head of state, he must democratically listen to the views of the people before executing any decision in their interest.

The prophet will be addressed to perform judicial duties where two people approaches him with an issue they have differed on, here the prophet’s wok is  to strike a fair  balance between them, weigh and asses their evidence if any and pronounce fair judgment between them. As a judge he will ensure that all the necessary elements are satisfied including witnesses to the incident are given an opportunity to be heard before giving his final verdict or judgement.

These two examples above can be performed by any other person as long as he is qualified for the position. But none can deputise to perform the messenger hood because Allah choose whoever wants to be his messenger, Muhammad was the last messenger sent on earth.

This is where Maqasid alsharia comes into play and Islamic law will only apply if one of the approaches have been employed properly and Maqasid alsharia is the beautiful science in applying the Islamic Law.