The Legal System
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 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. 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. 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. 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.
Prior to Nimeiri's consolidation of the court system in 1980, the judiciary consisted of two separate divisions: the Civil Division headed by the chief justice and the Sharia Division headed by the chief qadi. The civil courts considered all criminal and most civil cases. The sharia courts, comprising religious judges trained in Islamic law, adjudicated for Muslims matters of personal status, such as inheritance, marriage, divorce, and family relations. The 1980 executive order consolidating civil and sharia courts created a single High Court of Appeal to replace both the former Supreme Court and the Office of Chief Qadi. Initially, judges were required to apply civil and sharia law as if they were a single code of law. Since 1983, however, the High Court of Appeal, as well as all lower courts, were required to apply Islamic law exclusively. Following the overthrow of Nimeiri in 1985, courts suspended the application of the harsher hudud punishments in criminal cases. Each province or district had its own appeal, major, and magistrates' courts. Serious crimes were tried by major courts convened by specific order of the provincial judge and consisted of a bench of three magistrates. Magistrates were of first, second, or third class and had corresponding gradations of criminal jurisdictions. Local magistrates generally advised the police on whether to prepare for a prosecution, determined whether a case should go to trial (and on what charges and at what level), and often acted in practice as legal advisers to defendants.
In theory the judiciary was independent in the performance of its duties, but since 1958 the country's various military governments have routinely interfered with the judicial process. For example, in July 1989 the RCC-NS issued Decree Number 3, which gave the president the power to appoint and dismiss all judges. Under the authority of this decree, Bashir dismissed scores of judges, reportedly because they were insufficiently committed to applying the sharia in their decisions, and replaced them with supporters of the NIF. One of the most extensive judicial firings occurred during September 1990, when more than seventy judges were dismissed. The effect of these actions was to make the judiciary responsible to the president.
In November 1989, the RCC-NS established special courts to investigate and try a wide range of violations, including particularly security offenses and corruption. The special security courts handled cases that dealt primarily with violations of the emergency laws issued by the RCC-NS. The special corruption courts initially investigated charges that the state brought against officials of the Sadiq al Mahdi government, but since 1990 they have dealt with cases of embezzlement, foreign-currency smuggling, and black market profiteering. Critics charged that there was a lack of due process in the special courts and that the regime used them as a means of silencing political opponents. Judges sitting in the special courts included both civilians and military officers.
International human rights organizations and foreign governments, including the United States, have reported that since the Bashir government came to power in 1989, it systematically engaged in a range of human rights abuses against persons suspected of dissident political activity. The Sudanese Human Rights Organization was forcibly dissolved in July 1989, and scores of politicians, lawyers, judges, and teachers were arrested. According to a February 1991 report by Amnesty International, arbitrary arrest continued to be frequent, at least 40 political prisoners with serious health conditions were not receiving medical treatment, more than 200 political prisoners had been detained for more than a year without charges, torture was routine, and some political prisoners were summarily executed after trials in which the accused were not afforded opportunities to present any defense.
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