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Sudan: Lawyers Committee Report
Sudan: Lawyers Committee Report
Date Distributed (ymd): 970117
Document reposted by APIC
Lawyers Committee for Human Rights
Beset by Contradictions: Islamization, Legal Reform and Human
Rights in Sudan
December, 1996
Copies of the full report are available for $12 plus postage.
For more information contact Neil Hicks, Middle East and North
Africa Program, Lawyers Committee for Human Rights, 330
Seventh Ave., 10th Floor, New York, NY 10001. Tel: 212-629-
6170, ext 132 or ext. 158. Fax: 20-12-967-0916. E-mail:
[email protected].
EXECUTIVE SUMMARY
I.Introduction
This report analyzes the impact of the Sudanese government's
imposition of Islamic law on the country's criminal justice
system, and evaluates the extent to which Islamization has
affected Sudan's compliance with its international human
rights obligations. It finds that many abuses in Sudan are not
directly related to the government's Islamist ideology, but
follow patterns common to many types of governments. This case
study addresses a broader international debate about the
impact of Islamic political movements on human rights
protections.
II. Legal History
Islam has been an enduring element in the history, politics,
and law of Sudan for centuries. From the Mahdist uprising
against British rule in 1884 to the present, Islamists have
protested the marginalization of Islamic law and the
predominance of foreign legal codes, including Ottoman and
British law. Under British colonial rule, the common law
system became firmly entrenched while Islam was confined to
matters of personal law. This legal structure persisted
through the end of colonial rule into Sudanese independence.
In the post-Independence period, the National Islamic Front
(NIF) developed into an important movement that appealed to
those Sudanese disillusioned by the traditional Muslim sects.
To counteract the growing power of the NIF, then President
Colonel Jaafer Numeiri (1969-1985) declared his renewed
Islamic orientation. To bring the legal system into
conformity with Islamic law, Numeiri introduced sweeping
legal changes. Numeiri angered citizens and legal
professionals by applying the new Islamic provisions, known as
the September Laws, in an arbitrary and repressive manner.
Mounting criticism of Numeiri's rule led to a popular
uprising in 1985 that deposed him.
Sudanese lawyers and judges often criticized the
undemocratic practices of the Numeiri government, protesting
infringements on the rule of law and advocating for legal
reform, thus making them targets for persecution and
harassment. Neither the transitional military government
(1985) nor the elected civilian government of Sadiq al-Mahdi
had the will or the capability to repeal the September Laws.
This testified to the growing importance on the national
political scene of the National Islamic Front (NIF), which
continues to play an integral role in the current government
of Lieutenant-Colonel al-Bashir. As such, the NIF must be
considered in any analysis of the government's Islamization
program.
III. The Role of the National Islamic Front
The National Islamic Front (NIF) is part of a global
phenomenon of Islamic revivalism throughout the Middle East,
North Africa and beyond. It is an ideological movement
seeking comprehensive reform of Muslim society. For the NIF,
faith is not confined to the arena of individual morality,
but is also integral to the conduct of social, economic and
political relationships.
The first years of the regime were characterized by gross
human rights violations of a kind common to secular regimes
worldwide, such as extrajudicial killings, arbitrary
detention, torture, unfair trial procedures and repressive
security measures. The situation has not remained static,
however, and these brutal governmental tactics have largely
given way to more subtle methods of social control such as
restrictions on the right to freedom of expression, opinion,
religion, association and movement. The Sudanese government
has criminalized political and ideological dissent, engages a
multi-faceted security apparatus, and has installed a system
of rewards and punishments based on adherence to governmental
policies and observance of government-approved Islamic
practices. Though less conspicuous than mass arrests and
summary executions, these control mechanisms are equally
debilitating to the fundamental freedoms of Sudanese citizens.
IV. Structure of the Judiciary
Executive control over the judiciary and the conduct of the
courts has seriously compromised the rule of law in Sudan.
This control is exercised within the framework of repressive
emergency regulations imposed by Bashir's military regime in
the aftermath of the coup. The lack of a constitution,
the unchecked powers of the security services and political
manipulation of the court system are elements of a parallel
system of justice that can be invoked by the government, when
it deems expedient, to deal with acts of political opposition
and threats - real or imagined - to the security of the state.
V. Independence and Quality of the Legal Profession and
Judiciary
Government harassment of lawyers and judges poses one of the
most serious threats to the rule of law in Sudan. In the
aftermath of the coup, members of the legal profession were
detained along with the political opposition and held without
charge or trial for months and in some cases for years. The
previously independent Sudan Bar Association was taken over by
a government-appointed steering committee and was subjected to
the same restrictive regulations as trade unions. The RCC
purged the bench and dismissed or voluntarily retired hundreds
of judges. These judges have been largely replaced by those
sympathetic to the regime, resulting in the under
representation of women and Christian southerners on the
bench. The fact that half of the current total number of
judges have been replaced since 1989 is the primary cause of
deterioration in the quality and competence of the
judiciary.
VI. Islamic Criminal Justice
In order to establish its legitimacy as an Islamic government,
the Bashir regime must be seen to be implementing Islamic law.
However, the Sudanese legal system is based on several sources
of law in addition to Shari'a, including common law, customary
law, and international treaty law. The presence of these
other legal frameworks challenges the exclusivity of Shari'a.
To resolve these apparent contradictions, the Sudanese
government articulates a compromise position that embraces
Sudan's obligations under international and other sources of
law as long as they do not overstep the boundaries of Shari'a.
The resulting tensions between different legal principles lead
to inconsistencies in the theory and practice of Sudanese
criminal justice.
Some Sudanese officials support the position that Sudan s
obligations under international law should be reviewed in
light of the government's renewed emphasis on Islamic law.
Yet other officials, including the Chief Justice, continue to
affirm Sudan's compliance with international standards. In
order to maintain the consistency of its Islamic approach, the
government selectively challenges those of its obligations
under international human rights treaties that appear to
contradict Shari'a.
The Lawyers Committee believes that the Sudanese people must
be free to live in the social system of their choice. This
freedom, however, must be balanced with Sudan's obligations to
uphold international human rights standards aimed at
individuals. To date, the Sudanese government has failed in
several respects to implement international standards within
domestic law.
Sudanese penal legislation does not accurately reflect Sudan
s obligations under Article 7 of the ICCPR which protects
individuals from cruel, inhuman or degrading punishment.
Primarily, the inclusion of punishments such as flogging,
stoning and mutilations (amputations, qisas) is in
contravention of this Article.
The conduct of Public Order Courts, created to deal with petty
infractions of Islamic law (IE improper dress, alcohol
violations), fails to satisfy the minimum standards for a fair
trial. These courts are characterized by rapidity of
judgment, political dependence, incompetence of judges,
irregularity of trial procedures and the absence of safeguards
against abuse. Procedures contained in the Criminal Code are
replaced with summary procedures, and execution of the
sentence, particularly sentences of flogging, are carried out
almost immediately without chance for appeal. A large
percentage of Public Order court defendants are non-Muslim
women from displacement camps around Khartoum, raising the
issue of equality before the law.
The Sudanese government has dealt with the issue of
discrimination against women and non-Muslims by using a
variety of de facto discriminatory practices to undermine de
jure provisions of equality. Such practices include punishing
non-Muslims for offenses defined in the Shari'a, such as the
manufacture and drinking of alcohol, and subjecting women and
non-Muslims to strict codes of public morality as defined by
the government. The primary enforcement agents of vague
notions of honour, reputation, and morality are the Popular
Police and the Popular Committees (neighbourhood
associations). In the name of protecting the moral health
of Sudanese society, the Popular Police and the Popular
Committees seek to eradicate deviation from the official
interpretation of morality with little regard for human rights
protections.
VI. Conclusion and Recommendations
The Sudanese government has conflated its own interpretation
of Shari'a and its Islamization policies with Islam itself.
In response to international criticism of its human rights
record and penal legislation, the Sudanese government has
invoked the right to freedom of religion. A paradoxical
situation has arisen in which a significant portion of the
population, both Muslim and non-Muslim, is denied its right to
freedom of religion in the name of the Sudanese government's
right to impose its own particular interpretation of religious
law. According to international human rights law, however,
freedom of religion is conferred upon individuals, not states.
The government denounces Sudanese and foreign critics as
enemies of Islam, even if these critics are observant
Muslims. The government's ban on independent political
activity and criticism of official policies has denied
Sudanese citizens meaningful access to the legislative
process. Sudanese citizens also do not benefit from the basic
protections offered by a constitution. The government has
preferred to govern with the aid of emergency laws that grant
it wide powers of political repression and social control.
The right of Sudanese citizens to the social and political
system of their choice does not, however, grant the
government of Sudan the right to disregard basic freedoms
guaranteed by the international human rights treaties that
Sudan has signed. The challenge Sudan faces is to ensure
that every citizen, regardless of political opinion, religion
or race, enjoys the full range of internationally-mandated
freedoms. The Sudanese government should not seek to evade its
obligations by invoking cultural or religious particularity.
Indeed, such arguments should be viewed with skepticism as
long as they are used to rationalize governmental human rights
violations.
This material is being reposted for wider distribution by the
Africa Policy Information Center (APIC), the educational
affiliate of the Washington Office on Africa. APIC's primary
objective is to widen the policy debate in the United States
around African issues and the U.S. role in Africa, by
concentrating on providing accessible policy-relevant
information and analysis usable by a wide range of groups and
individuals.
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