April - 1997
Vol# 13 - Issue# 3
Islamic Law in the Global Village, Beset by Contradictions: Islamization, Legal Reform and Human Rights in Sudan
A recent report by the Lawyers Committee for Human Rights 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.
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. Thistestified to the growing importance on the national political scene of the National Islamic Front, 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.
The Role of the National Islamic Front
The National Islamic Front 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 also is 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, deployed a multi-faceted security apparatus, and has installed a system of rewards and punishments basedon 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.
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.
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, not only political opponents but members of the legal profession were detained and held without charge or trial for months and in some cases for years. The previously independent Sudan BarAssociation 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 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 judges are post-1989 appointees is the primary cause of deterioration in the quality and competence of the judiciary.
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 internationalstandards. 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 (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 theabsence 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 honor, reputation, and morality are the Popular Police and the Popular Committees (neighborhood 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.
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 ofits 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 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.