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When the Saudi Supreme Court announced in 2020 the abolition of flogging in discretionary sentences and replacing it with imprisonment, a fine, or alternative punishments, the step was considered an important shift within a series of legal and judicial reforms that the Kingdom has witnessed in recent years.
Human rights organizations saw at the time that the decision responded, even partially, to long-standing international criticism regarding the use of corporal punishment.
However, the case of Kenyan worker Esther Wanga Muthoni has re-highlighted the limits of these reforms, and sparked a discussion about cases in which the punishment of flogging still exists in the Saudi judicial system.
Muthoni is a 40-year-old Kenyan domestic worker and mother of five children. A Saudi court convicted her of having an affair and giving birth to a child out of wedlock, and sentenced her to 100 lashes, in addition to deportation from the Kingdom for a year.
The ruling raised questions about the previous judicial decision to abolish the punishment of flogging. But according to experts, Saudi Arabia distinguishes in its legislation and judicial system between two types of flogging: discretionary flogging and flogging in border cases.
The 2020 decision was limited to abolishing flogging in discretionary cases, which are cases in which the judge has discretionary authority to determine the punishment because there is no punishment specifically stipulated by Sharia law. Under the decision, flogging was no longer used as a punishment in this category of cases, and was replaced by other punishments.
As for legal punishment cases, flogging remained part of the legal system. These cases include specific crimes based on legal texts, such as slander and some crimes of intoxication and adultery, according to strict conditions of proof stipulated in Islamic jurisprudence.
Muthoni: “I want to go back to my children”
Sexual relations outside marriage are still considered a violation of the provisions of Islamic Sharia on which the Saudi judicial system relies in this aspect.
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Ekaterina Boras-Sivolopova, founder of Do Bold, a non-profit organization concerned with the rights of migrant workers in the Gulf, says that the authorities learned of Muthoni’s condition when she was taken to the hospital to give birth, where the relevant authorities were informed.
She added in an interview with BBC Arabic: “Women are afraid, and this fear prevents them from obtaining medical care,” noting that some of the women with whom the organization communicates preferred to give birth at home for fear of being subjected to legal accountability.
According to Muthoni’s testimony and court records, which the American newspaper The New York Times said in a report it had reviewed, the Kenyan worker did not receive legal representation during her trial sessions, while the support she received was limited to a court translator.
Image source: Saudi Justice Ministry
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She also did not appeal the ruling, considering that accepting it might speed up her return to her family in Kenya.
However, according to Sivolopova, Muthoni and her son are still in Saudi Arabia until now, at a time when it was not possible for them to leave due to complications related to the implementation of the ruling and the legal status of the child, who does not have a birth certificate, which is an essential document for completing travel and exit procedures from the country.
The human rights organization says that its organization addressed the Kenyan Ministry of State for Expatriate Affairs on October 27, but has not yet received a response. She also noted that the Kenyan authorities had previously issued emergency travel documents to Esther and her child, but they expired before they could be used.
United Nations human rights bodies consider flogging to be a cruel or degrading punishment.
In this context, Sevolopova calls on the Saudi authorities to use their powers to pardon the Kenyan worker or refrain from implementing the punishment. She also calls on the Saudi and Kenyan governments to find a clear mechanism to address the conditions of migrant mothers who face similar circumstances.
“All Esther wants is to go back to her children,” she says.
Saudi Arabia between reforms and reality
The case comes at a time when Saudi Arabia seeks to highlight a program of social and legal reforms linked to Vision 2030, which included expanding women’s participation in the labor market, making changes in personal status and labor laws, and introducing amendments to some aspects of the judicial system.
But critics believe that the impact of these reforms is not reflected equally on all groups, especially low-income expatriate workers.
In this context, Maryam Al-Dosari, a Saudi academic and acting director of the ALQST Human Rights Organization, says that Esther’s case reveals what she describes as the gap between the announced reforms and the reality that some migrant workers face when they come into contact with the criminal system.
She added to BBC Arabic that access to justice and appropriate legal representation remains a challenge for many foreign workers, especially in criminal cases.
For her part, Sivolopova believes that any reform should be measured by the extent to which it reflects on workers' daily lives and their ability to protect their rights when facing legal procedures.
She says that migrant domestic workers often find themselves facing the judicial system without sufficient financial resources or specialized legal support.
She revealed that her organization is aware of about 70 Kenyan mothers in Saudi Arabia who face difficulties in leaving the country because their children do not have birth certificates or complete legal documents, calling for finding a clearer mechanism to register births and settle their legal status.
The Permanent Secretary of the Kenyan Ministry of Foreign Affairs, Korir Singwe, expressed in a post on the “X” platform his regret for the sentence issued against Esther, describing the punishment as “cruel and inhumane” according to the legal standards applied in Kenya, while at the same time stressing his country’s respect for the sovereignty of the Saudi judicial system.
He added that Nairobi will continue to communicate with the Saudi authorities regarding this issue and other issues related to the implementation of judicial rulings.
The Saudi authorities did not issue a public comment on the issue of the Kenyan worker, while Saudi analyst Ali Al-Shihabi, who is seen as close to the decision-making circles in the Kingdom, said that Saudi Arabia has witnessed profound reforms in recent years, but clerics he described as “reactionary” are still rooted in parts of the regime, and they cannot all be eliminated overnight.
He added, "Mercy in Sharia law is not just a slogan, and justice and mercy do not contradict each other."
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