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Sudan
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 (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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