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WEEKLY NEWSLETTER
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Sudan
Index
The administration of justice traditionally was regarded by
arabized Sudanese and a number of southern ethnic groups as the
most important function of government. In precolonial times
supervision of justice was solely in the hands of the ruler. In
the north, most cases were actually tried by an Islamic judge
(qadi) who was trained in one of the
Sunni (see Glossary)
Islamic
legal schools. Crimes against the government, however, were heard
by the ruler and decided by him with the advice of the grand
mufti, an expert in the sharia, who served as his legal adviser.
Although the Muslim influence on Sudanese law remained
important, the long years of British colonial rule left the
country with a legal system derived from a variety of sources.
Personal law pertaining to such matters as marriage, divorce,
inheritance, adoption, and family disputes was adjudicated in the
sharia courts in the predominantly Muslim areas. Customary law,
modified in varying degrees by the impact of the sharia and the
concepts introduced by the British, governed matters of personal
law in other areas of the country. Laymen, generally a chief or
group of elders, presided over local courts. In addition to
personal law, these courts, which numbered more than 1,000, heard
cases involving land titles, grazing rights, and other disputes
between clans and tribes.
The primary legal influence remained British, because of the
weight given to British legal precedents and because most of the
lawyers and judges were British-trained. After independence in
1956, much discussion took place on the need to reform or
abrogate the system inherited from the British. A commission was
preparing a revision of the legal system when Nimeiri and the
Free Officers' Movement carried out the 1969 military coup
against the elected civilian government
(see The Nimeiri Era, 1969-85
, ch. 1). The Nimeiri regime, which looked to Gamal Abdul
Nasser's government in Egypt as a model, dissolved this
commission and formed a new one dominated by twelve Egyptian
jurists. In 1970 this commission unveiled a new civil code of 917
sections, copied in large part from the Egyptian civil code of
1949, with slight modifications based on the civil codes of other
Arab countries. The next year draft commercial and penal codes
were published.
This major change in Sudan's legal system was controversial
because it disregarded existing laws and customs, introduced many
new legal terms and concepts from Egyptian law without source
material necessary to interpret the codes, and presented serious
problems for legal education and training. The legal profession
objected that the Sudanese penal code, which was well established
and buttressed by a strong body of case law, was being replaced
by the Egyptian code, which was largely transplanted from a
French legal system entirely alien to Sudan. Following a 1971
abortive coup attempt against the Nimeiri government and
increasing political disillusionment with Egypt, the minister of
justice formed a committee of Sudanese lawyers to reexamine the
Egyptian-based codes. In 1973 the government repealed these
codes, returning the country's legal system to its pre-1970
common-law basis.
Following the suppression of a coup attempt in late 1976,
Nimeiri embarked on a political course of "national
reconciliation" with the religious parties
(see National Reconciliation
, ch. 1). He agreed to a principal Muslim
Brotherhood demand that the country's laws be based on Islam and
in 1977 formed a special committee charged with revising Sudan's
laws to bring them into conformity with the sharia. He appointed
Hassan Abd Allah at Turabi, secretary general of the Muslim
Brotherhood, as chairman of the committee. Non-Muslims viewed the
committee with suspicion, and two southern politicians who had
agreed to serve on the commission rarely participated in its
work. Turabi's committee drafted a total of seven bills, which it
sent to the People's Assembly for enactment. One of the proposed
laws, the Liquor Prohibition Bill, prohibited the sale,
manufacture, advertising, and public consumption of alcohol among
Muslims. Another was the Zakat Fund Legislative Bill, which made
mandatory the collection of a tax from Muslims for a social
welfare fund administered separately from government accounts.
The Sources of Judicial Decisions Bill called for repealing the
section of the existing civil procedure code that permitted
judges to apply the concept of "equality and good conscience" in
the absence of a provision of law and provided that this be
replaced by the Quran or the standards of conduct based on the
words and practice of the Prophet Muhammad. The Turabi committee
also called for the imposition of hudud and for bans on
the payment of interest on loans.
During the next six years, only one of the Turabi committee's
proposals, the law on zakat, was actually enacted.
Following Turabi's appointment as attorney general in November
1981, however, Islamizing the legal system proceeded in earnest.
This process culminated in the summer of 1983 with the
establishment of a three-member committee that revised Turabi's
earlier proposals. In September 1983, Nimeiri issued several
decrees, known as the September Laws, that made the sharia the
law of the land. In November the People's Assembly approved
without debate legislation to facilitate the implementation of
the sharia. These bills included the Sources of Judicial
Decisions Bill, mentioned above, and a new penal code based on
hudud.
The imposition of Islamic law was bitterly resented by
secularized Muslims and the predominantly non-Muslim southerners.
The enforcement of hudud punishments aroused widespread
opposition to the Nimeiri government. Several judges who refused
to apply the sharia were summarily dismissed. Their replacements,
men with little or no legal training but possessing excessive
zeal for the strict application of hudud, contributed to a
virtual reign of terror in the court system that alienated many
devout Muslims, including Sadiq al Mahdi, great-grandson of the
religious ruler who defeated the British in 1885
(see The Khalifa
, ch. 1). By early 1985, even Turabi believed it was time
to disassociate the Muslim Brotherhood from Nimeiri's vision of
Islamic law. He resigned as attorney general and was promptly
arrested.
Following Nimeiri's overthrow in April 1985, imposition of
the harshest punishments was stopped. Nevertheless, none of the
successor governments abolished Islamic law. Both the
transitional military government of General Siwar adh Dhahab and
the democratic government of Sadiq al Mahdi expressed support for
the sharia but criticized its method of implementation by
Nimeiri. The complete abolition of the 1983 September Laws,
however, remained a primary goal of the SPLM, which refused to
end hostilities in the south until its demand was met. By early
1989, a reluctant Sadiq al Mahdi indicated his willingness to
consider abrogation of the controversial laws. This process
prompted his coalition partner, the NIF, organized by Turabi
after Nimeiri's overthrow, to resign from the government in
protest. Subsequently, Sadiq al Mahdi announced that the cabinet
would consider on July 1, 1989, draft legislation repealing the
September Laws and would meet with SPLM leaders to resolve
peacefully the country's civil war.
The military coup of June 1989 occurred only twenty-four
hours before the Sadiq al Mahdi government was scheduled to vote
on rescinding the September Laws. Although the Bashir government
initially retained the official freeze on implementation of those
laws, it unofficially advised judges to apply the sharia in
preference to secular codes. Turabi, who in 1983 had played an
influential role in drafting the September Laws, was enlisted to
help prepare new laws based on Islamic principles. In January
1991, Bashir decreed that Islamic law would be applied in courts
throughout the north, but not in the three southern provinces.
Data as of June 1991
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