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ISLAMIC UNIVERSITY IN UGANDA

KAMPALA CAMPUS
FACULTY OF LAW
ISLAMIC LAW OF EVIDENCE COURSE WORK
GROUP 1
RESEARCH TOPIC: QASAMAT
NO. NAME REG NO
1 NAMASOGA MIRIA 220-053012-19230
2 MAGALA FRED 120-053011-22861
3 KWESIGA BRIAN 220-053012-19397
4 OYESIGYE NEWTON 220-053012-19672
5 AYEBAZIBWE ARON 220-053012-16290
6 MUKAMA BENSON KAFEERO 220-053012-19543
7 MAGEZI ADAM 220-053012-19261
8 OKANYA SIMON 220-053012-19516
8 NEELAM BINT MUHAMMED 220-053012-19526
9 SENKUNGU AMOS 220-053012-19179
10 NAKIYEMBA HASIFA 220-053012-19320
11 DHAKABA MOHAMMED KIRUNDA 220-053012-19634
12 KISAMBIRA TITUS MUTANDA 119-053012-20483
13 NABAASA ALLON 217-053012-10269
14 NAKAYIMA BAYATI 220-053012-19436
15 NSUBUGA HAMIIS 220-053012-16247
16 MUYAMA SHALIFAH 220-053012-19121
17 NAKATO HASIFA 220-053012-19506
18 MALE KENNETH 220-053012-12689
19 ERIKU FRED MASAGAZI 113-053012-10017
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INTRODUCTION
Evidence is defined in Islam to mean “an evident indication of the commission of an offense
by a certain person.” The holy prophet Muhammed referred to evidence as “Bayyinah” which
means anything that manifests the facts disputed in court.1
Islam accepts the admission of evidence to prove a given claim under Surah-al-Baqra-282, “Do
not conceal testimony. He who conceals it, his heart is sinful”. prophet Muhammed (P.B.U.H)
further said that “if people were given what they asked when they brought a case, some
would claim the lives and property of others. Thus, this all justifies the rationale and
admission of evidence in Islamic law.
There are different ways through which crimes are proved and the difference is always brought
about by the nature of the crime one is alleged to have committed.
Some crimes are proved with merely testimony from two witnesses (theft)2 and others are
proved by testimony from four witnesses(adultery). These witnesses must have observed the
alleged crime being committed by the accused, meaning their evidence must be direct in nature.
They must be liable in nature hence the witnesses must have never been convicted of any major
crime in Islam, must be of mature age with sound mind at the time of the commission and
that of giving testimony.
Crime in Islam can as well can be proved by confession of the accused; however, the confession
should be free and independent of any form of duress or coercion. Where the accused retracts his
testimony, it should be considered as no testimony and if it were for a hud crime a hud
punishment shall not granted.
Finally, some crimes in Islam are proven by oath (taking oath) this can be by the claimant in
instance of accusation of adultery by their husband towards their wife “li’an”. Also, oath can be
taken in instances where a crime such as murder has been committed and no one can be pinned
or suspected. This can happen where one is killed near a residential area, in such instances the
inhabitants of the residence shall be held liable and to prove that they know nothing of such
happenings they will be required to take 50 oaths hence the term “Qasamat”3

1
General Principles of Criminal Evidence in Islamic Jurisprudence (From Islamic Criminal Justice System, P 109-123,
1982, M Cherif Bassiouni, ed. - See NCJ-87479)< https://www.ojp.gov/ncjrs/virtual-library/abstracts/general-
principles-criminal-evidence-islamic-jurisprudence-islamic> accessed 23.03.2023.
2
Quran verse 5:38
3
Means of Evidence in Islamic Law (From Effect of Islamic Legislation in Saudi Arabia - Proceedings, P 149-192,
1976 - See NCJ-87248)< https://www.ojp.gov/ncjrs/virtual-library/abstracts/means-evidence-islamic-law-effect-
islamic-legislation-saudi-arabia#:~:text=Islamic%20law%20defines%20evidence%20as,testimony%20given%20by
%20the%20plaintiff.> accessed 23th.03.2023.
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COMPURGATION (AL-QASAMAH)
“al-Qasamah” is derived from “al-iqsam” or “taking of an oath” and the verb “Yaqsimu” means
to “take an oath”.4
Al-Qasamah is defined to mean the oath taken by 50 men from among the people of the slain
man.
This most applies in instances of homicides where the murderer is hard to identify from among
the many. According to the malikites Qasamah is only applicable where no legal evidence can be
found to pin anyone for the unlawful killing of the deceased. This means there should be
circumstantial evidence to at least link a certain group of people to the murder however much it
would be inconclusive.5
In Islam compurgation “al-Qasamah” was legislated to; 1)- avoid bloodshed in vain, 2)-
preserve the lives of Muslims, 3)- to let no way for the murderer to escape punishment. In Al-
qasama, oath is taken by 50 men of the people of the slain person individually.
Procedure of Qasamah according to the malikis,
The next of kin of the deceased person can decide to invoke Qasama and this is only if there is a
strong suspicion against a given suspect or group of people which is based on different
incriminating indications (lauth) but not legal evidence.
Under this situation the agnatic male relatives of the deceased may swear fifty oaths in order to
collaborate their suspicion.in their oath they should indicate whether the murder was committed
willfully or by mistake hence indicating whether the murder was intentional or mistaken. Where
they indicate in their oaths that the murder was intentional then they shall be paid blood
money(diyaat) as compensation for their loss.
Under the malikis teachings the required lawth to procure application of Qasama may be
circumstantial such as;
1) The fact that a corpse is found in a hostile village or among a hostile family or tribe is
enough circumstantial evidence (lawth) for initiation of Qasama
2) The fact that a corpse was found lying on the ground shortly after people had left that
spot. “Here the exact person who might have killed the deceased can’t be spotted out of
the many neither can the whole group be held liable hence the invoking initiation of
Qasama dependent on the circumstantial evidence that they were the last people to be
seen at the scene of crime”
3) Also, where one if found in blood-stained clothing near where someone was killed is
enough circumstantial evidence that the claimants can depend on to invoke Qasama.

4
Compurgation (al-Qasamah) by Dr. Amin Abd al-Mabud Zaghlool,<
http://pubcouncil.kuniv.edu.kw/jsis/home.aspx?id=8&Root=yes&authid=479> accessed 23.03.2023.
5
Peters, Rudolph. “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma Procedure in Islamic Law.”
Islamic Law and Society, vol. 9, no. 2, 2002, pp. 132–67. JSTOR< http://www.jstor.org/stable/3399323> Accessed
26 Mar. 2023.
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4) The suspicion can as well be based on legally incomplete evidence. This most especially
in instances where the deceased died after making a dying declaration naming his or her
attacker. In such instances where the prosecution fails to produce two witnesses who
witnessed the murder and as well the suspect never confesses, Qasama can be invoked.6
According to the Hanafi scholars the procedure for the application of Qasama is
completely different i.e.
The Hanafi scholars say that when a corpse manifesting traces of violence is found in a city
quarter, in a village or in the vicinity of a house (within shouting distance).
Or the corpus is found Infront or within one’s house or land, and the killer cant be found or is
unknown, the deceased’s heirs can bring an action against the owner of the house or land or all
its inhabitants. Where the defendants denies the accusation, the heirs dependent on circumstantial
evidence can initiate Qasama by exacting 50oaths to the effect that the inhabitants or the house
owners or land owner killed the deceased.
The owners of the land or house or the inhabitants shall then take 50 oaths which are taken by
those chosen by the claimants (50 people) swearing to have not killed or participated in the
murder of the deceased. However, he who refuses to take the oath is imprisoned till he or she
confesses. Where all take the oaths, it doesn’t take away the criminal burden from them and as
such they are liable to pay blood money to the family of the deceased.7
However, Qasama as a way of proving different crimes such as murder in Islam has been
criticized on different grounds laying down the different Anomalies associated with its
procedure. The different anomalies are elaborated by the malikite jurist, philosopher and
systematic thinker Ibn Rushud basing on a number of various views developed by previous
jurists who had objected the same. All these were developed dependent on Qasama’s
inconsistence with various the different general legal principles in Islamic law of evidence as
well as the inadequacy in textual support.
1. The doctrine of Qasama violates the principle that one may swear an oath only with regard
to something one knows or has observed. This is dependent to the fact that the person
testifying must give direct evidence hence he must have observed with his eyes as well heard by
his own ears.
2. It conflicts with the rule that the plaintiff must prove his claim and that only if he is unable to
do so must the defendant swear an oath. This is dependednt on the burden of proof where its
clearly stated that “he who alleges must prove” there by putting the burden on the claimant,
however with Qasama mostly in the Hanafi procedure it’s the defendants who swear the oath

6
Peters, Rudolph. “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma Procedure in Islamic Law.”
Islamic Law and Society, vol. 9, no. 2, 2002, pp. 132–67. JSTOR, < http://www.jstor.org/stable/3399323> Accessed
26 Mar. 2023.
7
Peters, Rudolph. “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma Procedure in Islamic Law.”
Islamic Law and Society, vol. 9, no. 2, 2002, pp. 132–67. JSTOR, <http://www.jstor.org/stable/3399323> Accessed
26 Mar. 2023.
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hence contradicting the legal principle as regards who bears the burden to prove. This is one of
the basic principles of the law of procedure.
3. It violates the general rule that retaliation must be based on full evidence. This is evident in
the malikite procedure where claimants swear the 50 oaths that it’s the claimant who killed the
deceased then retaliation can be awarded. However, this would contradict with then main
principle that retaliation is not awards basing on circumstantial evidence.
In conclusion, Qasama is only applied or invoked in instances where legal evidence is
insufficient to backup an allegation or where the exact perpetrator cannot be pinned.
Therefore, this means Qasama is only invoked dependent on circumstantial evidence. More
still for any person to take oath in qasama such a person should be of sound mind, great
repute , of age and should be a person who has never been convicted of any major offense in
islam.