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Sudan

By:
Olaf A. Köndgen
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

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Sudan

Since the rise of Islam in the sixteenth century, the legal system in the Sudan has borne the imprint of Sultanic law, the Sharīʿah, and of customary law. In the modern period, although the Sharīʿah and customary law continued to be important, the legal systems of powers who have ruled the Sudan became dominant. For most of the nineteenth century, Ottoman-Egyptian legislation was the official law of the land. With the inception of Anglo-Egyptian condominium rule, English common law became the main pillar of the Sudanese legal system. Since the early 1970s, Egyptian civil law has exerted a growing influence on Sudanese civil law.

As of 1983, Sudanese legislation has gone through an accelerated, albeit contested, process of Islamization. It remains to be seen whether the Islamized legislation and judicial structures that were created during this time will survive future regime changes.

Islamic Law in Sudanese History.

Islamic law in the Sudan saw its modest beginnings under the Funj-Sultanate (1504–1820), dominating Northern and Central Sudan, and the Sultanate of Dar Fur (1640–1916), which controlled Western Sudan. In both Sultanates knowledge of the Sharīʿah gained ground only slowly, often through the efforts of the ever growing community of Arab Muslim traders. Notwithstanding the growing influence of Islamic law, customary and Sultanic law remained strong.

Under Ottoman-Egyptian rule (1820–1881), the North and the South of the Sudan became united for the first time. A centralized judiciary was created featuring a hierarchical system of local and provincial courts and an appeals court in Khartoum. Which laws were actually applied by the Egyptian administration remains unclear to some degree. In some instances Sharīʿah was applied; in other cases Egyptian military and civil codes provided the rule of decision, as the Sudan was part of Egypt. In more remote areas, justice was administered according to customary law. It was under Ottoman-Egyptian rule that the Sharīʿah as family and inheritance law was first instituted in the Sudan. Ottoman-Egyptian dominance also meant the introduction of Ḥanafī law to the Sudan, in addition to the hitherto traditionally dominant Mālikī school.

When Muḥammad Aḥmad al-Mahdī, a charismatic religious revivalist, conquered Khartoum in 1885, all verdicts of the Ottoman-Egyptian rule were declared void. Aspiring to restore the religious purity of the Prophet Muḥammad’s time, the Qurʾān and sunnah, in his al-Mahdī’s often idiosyncratic interpretation, were the only sources of the Mahdi´s legislation. A large number of legal circulars were promulgated—often in conflict with the traditional Sunnī schools of law. For example, women were to be flogged for speaking with a loud voice and smoking was to be punished more severely (100 lashes) than the drinking of alcohol (80 lashes). Throughout the Mahdi’s rule, recourse to the fiqh was largely excluded and the position of the traditional ulamāʾ was weakened.

When the Mahdi’s state collapsed, so did the judicial structures—most of which had been centered largely on the charismatic leader. The newly established Anglo-Egyptian condominium (1898–1956) started from scratch and promulgated in 1899, as part of a new legal system, a Penal Code and a Criminal Procedure Act. Whereas the former was based on Anglo-Indian colonial legislation, the latter relied on Egyptian military law. Both codes were free from Sharīʿah elements but had been adapted to Sudanese conditions. The Penal Code was reenacted in 1925 but again without influence of the Sharīʿah. As of 1902, “Mohammedan Law Courts” administered the Sharīʿah in personal status cases and in cases regarding pious foundations (awqāf). Concurrently, legal circulars (manshūrāt) were issued by the Grand Qadi, who was always of Egyptian origin. To be recognized as binding interpretations of Sharīʿah, these circulars had to be approved by the Governor-General. They gave guidance as to the interpretation of the Sharīʿah. Similar types of circulars continue to be issued even today.

Throughout the time of the condominium the Sharīʿah coexisted with local customary law, administered by tribal leaders and also alongside common law. The latter, applied in a system of “civil courts,” was clearly regarded by British colonial administrators as the superior legal tradition. The importance of Sharīʿah courts during the condominium varied over time. In a first phase, the British strengthened the traditional ulamāʾ and their institutions against the perceived threat of the “heterodox” Ṣūfī orders. As of 1920, a number of Sharīʿah courts were suppressed and replaced by native courts. To diminish the status of the Sharīʿah courts, these native courts were given concurrent jurisdiction over personal status issues and instructed to resolve them according to customary law.

Between independance (1956) and Numairi’s coup d’état (1969), three different visions dominated the discussion about a future constitution and legislation. An Islamic, Sharīʿah-based, system, Egyptianization of the legal system and a pragmatic, reformist approach were the main suggestions. None of these trends had made much headway when Numairi made a new attempt to break free from the colonial legal heritage. In 1971 he introduced the Egyptian Civil Code of 1949, with a few changes, in addition to draft penal and commercial codes. A “permanent” constitution followed in 1973. Partly as a result of strong opposition from the common law–trained judiciary, the new Civil Code and the other new codes had to be revoked in 1974. The same year saw yet another wave of legislation, including a new Penal Code. This time the pragmatist trend had its way and neither the Sharīʿah nor Egyptian law played a major role in the drafting process. In fact, the new Penal Code was an adaptation of its 1925 predecessor and, like it, devoid of Sharīʿah elements.

Reinstatement of Islamic Law under Numairi.

When in September 1983 the Islamist so-called “September laws” were promulgated the Numeiri regime had increasingly come under political and economic pressure. Furthermore, civil war in the South had broken out again after the 1972 Addis Ababa peace agreement had been gradually dismantled. With Numairi personally being the driving force behind the Islamization process, the new legislation was enacted mostly by way of presidential decrees. It comprised a Penal Code, a Criminal Procedure Act, an Evidence Act, and other legislation. Given the speed of the drafting and the lack of expertise of its authors, a substantial number of the Islamized provisions of the September laws were in contradiction with traditional Islamic jurisprudence (fiqh). For instance, the Evidence Act required the testimony of four adult men to establish unlawful sexual intercourse (zinā), but it was in contradiction with the fiqh in allowing that “when it is necessary, the testimony of others may be taken.” Most Southerners rejected their new status as second-class citizens and the fact that the Sharīʿah was applicable in the South as well. Although the application of the new provisions of the Penal Code proved practically impossible in the South, Southerners living in the North were subjected to floggings and amputations. In the North, a broad alliance of secular parties denounced the September laws as un-Islamic, misogynist, and generally repressive.

To quell the resistance against the Sharīʿah and Numairi’s autocratic rule, a state of emergency was declared and a new body of emergency courts was created. These emergency courts, later rebaptized “Courts of Instantaneous Justice,” were accountable directly to Numairi and had jurisdiction over all cases to be resolved according to the September laws. The Islamization of parts of the legal system also led to some of the new laws being in conflict with the 1973 constitution. To solve these contradictions Numairi suggested a number of constitutional changes. The Sharīʿah, for example, would have become the only source of legislation. These suggestions to Islamize the constitution, however, met with fierce resistance in parliament, and the legislature had to be adjourned.

In January 1985 Muḥammad Taha, the prominent leader of the reformist “Republican Brothers” was hanged for apostasy, a crime that had not even been codified in the new Penal Code. The highly controversial execution of Taha, who had strongly opposed Numairi's introduction of the Sharīʿah, did not subdue Sudanese society. After the abolition of bread and fuel subsidies, a general strike broke out in March 1985 and the military under Siwar al-Dhahab assumed power. Although the following military regime suspended the execution of amputations, floggings were still administered. Those convicted under the September laws stayed in prison and were joined by others likewise sentenced to amputation or cross-amputation. This situation did not change substantially under the democratically elected governments of Sadiq al-Mahdi, who ruled in various coalitions from 1986 until Umar al-Bashir’s military coup in 1989. Despite continuous lobbying of the National Islamic Front’s (NIF) spiritual rector, Hasan al-Turabi, for a new, Islamized penal code, in the summer of 1989 the political tides turned in favor of a revocation of the Sharīʿah laws.

The day before their planned abolition, brigadier Umar al-Bashir assumed power in a bloodless coup. It soon became clear that Hasan al-Turabi and the NIF were in alliance with Bashir. The constitution was revoked and under the cover of emergency law large-scale purges of the civil service were carried out. In the judiciary, hundreds of trained judges were replaced by often unqualified followers of the NIF. A parallel system of courts ensured the complete control of the executive over the majority of cases. Not surprisingly, the Islamist-military regime also introduced important new legislation to reach its goal of an in-depth Islamization of Sudanese society. Thus, the draft penal code of 1988, a project that had been devised under the auspices of the then minister of justice Hasan al-Turabi, was resuscitated and promulgated in 1991 with few changes. This Criminal Act 1991 included the full range of the Qurʾānic punishments (ḥudūd) and retaliation (qiṣāṣ) and, for the first time in the history of Sudanese law, apostasy (ridda). Other important legislation included the Muslim Personal Law Act, a codification of personal status law (1991), Public Order Acts on the governorate level (1996), and the 1998 Constitution. The latter was replaced by the Interim National Constitution (INC) of 2005, as a result of the Comprehensive Peace Agreement (CPA) between the government and the Sudan People’s Liberation Movement (SPLM). The INC provided for Sharīʿah application in the capital Khartoum while safeguarding the rights of non-Muslims. A six-year transition period ended, as stipulated in the INC, with a referendum on the independance of the South of Sudan. An overwhelming majority of Southerners opted in favor of independance, which came into effect in July 2011.

Islamic Law in the Contemporary Sudanese Legal System.

Beyond family and inheritance law, based predominantly on the Ḥanafī school, Sudan’s legal system today is influenced by the Sharīʿah most prominently with regard to economic law, criminal law, constitutional law, and, to some degree, civil law.

In the economic sphere the influence of the Sharīʿah is most strongly felt in the finance and the taxation sectors. Sudanese banking laws in the North, i.e. in the Republic of Sudan, are entirely based on Qurʾān and sunnah, with conventional, interest-based financial tools eliminated from the system. Official zakāt (the religious alms tax) is paid by commercial companies, and proceeds are distributed in kind or in cash to hospitals, orphanages or Qurʾānic schools. Unofficial, that is, voluntary zakāt, given by individuals, is not paid to the state, but is normally distributed within the families and relatives of the donators.

Arguably the most prominent feature of Islamic law in the Sudan has been the introduction of the Qurʾānic fixed punishments (ḥudūd), except apostasy, and retribution (qiṣāṣ) into statutory law in 1983 and its subsequent reinstatement in 1991. Thus, drinking alcohol (shurb al-khamr), unlawful sexual intercourse (zinā), unproven accusation of unlawful sexual intercourse (qadhf), banditry (ḥirāba), theft (sariqa), apostasy (ridda), as well as retribution are punishable under the Criminal Act 1991 in the North. Provisions exempting the South of the Sudan from the ḥudūd and other Islamic provisions have become obsolete with the South’s independance in 2011. With regard to the actual implementation of the ḥudūd, observers have noted that the Bashir regime seemed rather keen to give an impression of moderate application as opposed to the harsh practice that characterized Numairi’s 1983 experiment. This concerns mainly single and cross-amputations, crucifixions, and executions for unlawful sexual intercourse or apostasy. As to the latter, no executions have become known after the Taha case of 1985. Floggings administered as ḥadd-punishments for alcohol consumption are, however, a recurrent practice as well as executions carried out as qiṣāṣ-punishments.

It is worth noting that the 2005 INC, by granting a variety of freedoms and rights, created substantial contradictions with regard to existing legislation. Thus, the constitution guarantees freedom of religion, while apostasy is punishable by death under the Criminal Act 1991 (art. 126). Likewise, the INC guarantees equal rights for men and women, whereas the Criminal Act and the pertinent family and inheritance laws are discriminating against women. The aforementioned safeguards for non-Muslims in Khartoum are equally at variance with the Criminal Act, which excepts only the (now independant) South from important parts of the Islamic criminal legislation. Despite the existence of a constitutional court since 1998, none of these laws have been declared unconstitutional.

The INC further provides for the possibility that a non-Muslim, at least in theory, may become president of the Sudan. As to the sources of legislation, it makes a clear distinction between the South and the North. Recognizing the de facto state of affairs, it stipulated that the Sharīʿah was not to play a role in the South, while the Northern states of the Sudan have as its sources of legislation the Sharīʿah and the consensus of the people (Art.5 (1)).

Assessment.

Two autocratic regimes have since 1983 expanded the influence of the Sharīʿah in the Sudanese legal system to the detriment of the common law and other legal traditions. The prominent role of the Sharīʿah in the Sudanese political and legal systems is, however, in flux and depends to a large degree on the political fate of the Islamist forces that presently dominate the political sphere. In the second half of 2012 the Bashir regime is weakened by ongoing conflicts in Dar Fur and at the new border with the Republic of South Sudan. The secession of the South, with the resulting loss of one-third of its territory, after decades of brutal fights and countless victims, in addition to the arrest warrant for President Bashir issued by the International Criminal Court, a rapidly deteriorating economic situation and rampant corruption, have seriously undermined the position of the Bashir government. The regime seems to be more entrenched than ever and resorts again to Islamist rhetorics to drum up support on the domestic political front. In the autumn of 2011, it has announced the introduction of an Islamic constitution. Any legal reform that could be construed either by opponents or followers of the Bashir regime as a gradual retreat from its pro-Shari´ah positions has thus, for the time being, become rather unlikely.

Bibliography

  • Bleuchot, Hervé. Les cultures contre l’homme? Essai d’anthropologie historique du droit pénal Soudanais. Aix-en-Provence: Presses Universitaires d´Aix-Marseille, 1994. Detailed study of the development of criminal law in the Sudan until 1991.
  • Converset, E., and J.-M. Binois. La zakat au Soudan: Une alternative islamique à l’aide humanitaire internationale?? Geneva, Switzerland: Institut Universitaire d’Etudes du Développement, 2006. Most recent and up-to-date study on the practice of zakāt in the Sudan.
  • Fluehr-Lobban, Carolyn. Islamic Law and Society in the Sudan. London: Frank Cass, 1987. Concentrates on family law, somewhat outdated but not yet superseded.
  • Köndgen, Olaf. “Sharia and National Law in the Sudan.” In Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, edited by Jan Michiel Otto, pp. 181–230. Leiden, The Netherlands: Leiden University Press, 2010. Overview of the role of Islamic law in the Sudan in past and present.
  • Layish, Aharon/ Warburg, Gabriel. The Reinstatement of Islamic Law in Sudan under Numayri. Leiden, The Netherlands: Brill, 2002. Seminal study on the first phase of the introduction of the Islamized Penal Code and its impact.
  • Scholz, Peter. “Die koranischen Delikte (hudud) im sudanesischen Strafrecht.” Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW), 112 (2000) Heft 2. pp. 431-460. Analysis of the role of the fixed punishments (ḥudūd ) in the 1991 Penal Code.
  • Sidahmed, Abdel-Salam. “Problems in Contemporary Applications of Islamic Criminal Sanctions. The Penalty for Adultery in Relation to Women.” British Journal of Middle Eastern Studies (Durham), 28.2 (November 1, 2001): 187–204. Highlights some of the inconsistencies in the punishment of unlawful sexual intercourse.
  • Stiansen, Endre. “Interest Politics: Islamic Finance in the Sudan, 1977–2001.” In The Politics of of Islamic Finance, edited by H. Clement and R. Wilson, pp. 155–167. Edinburgh: Edinburgh University Press, 2004. Describes the repercussions of the Islamization of the finance sector.
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