The Codification of Islamic Criminal Law in the Sudan : Penal Codes and Supreme Court Case Law under Numayrī and Bashīr [1 ed.] 9789004357082, 9789004347434

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The Codification of Islamic Criminal Law in the Sudan

Studies in Islamic Law and Society Founding Editor Bernard Weiss

Editorial Board Ruud Peters A. Kevin Reinhart Nadjma Yassari

volume 43

The titles published in this series are listed at brill.com/sils

The Codification of Islamic Criminal Law in the Sudan Penal Codes and Supreme Court Case Law under Numayrī and al-Bashīr

By

Olaf Köndgen

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1384-1130 isbn 978-90-04-34743-4 (hardback) isbn 978-90-04-35708-2 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Für Viktor Rubén und Nanami Malena

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… the English law will no doubt continue as the main guidance for our future legal development. But if the trend is to follow opinion and ideas tainted and coloured with sentiment and emotions then any change to a different system will serve no purpose other than the temporary political gain by those who are advocating it. g.a. lutfi, “The Future of the English Law in the Sudan,” Sudan Law Journal and Reports.

… Islamic law is like a pistol in your pocket, you rarely use it. jalāl luṭfī, late president of the constitutional court of the Sudan.

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Contents Acknowledgments 1

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Introduction 1 The Study of Islamic Criminal Law in the Sudan Research Questions 7 Sources Used 10 Structure 26

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A Short History of Islamic Law in the Sudan 29 Law in the Fūnj Sultanate (1504–1821) and in Dār Fūr (1640–1916) The Centralization of Justice under Ottoman-Egyptian Rule (1820–1881) 32 Sharīʿa of Its Own Kind: Islamic Jurisdiction under the Mahdī (1881–1898) 34 The Condominium and the Introduction of British-Indian Law (1898–1956) 36 Discussions on the Islamization of Law (1952–1969) 38 Numayrī and the Islamization of the Sudanese Legal System (1969–1985) 41 Procrastination under Siwār al-Dhahab and Ṣādiq al-Mahdī (1985–1989) 69 A Regime with an Agenda: al-Bashīr and al-Turābī Take Over (1989–) 75

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Sources, Structures, Procedure, Evidence, and General Principles 106 Criminal Legislation 106 Enforcement and Procedure 117 General Principles in Sudanese Islamic Criminal Law 148 Sanctions 166

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Unlawful Sexual Intercourse (zinā) and Related Offenses 179 Zinā and Related Offenses in the fiqh 179 Zinā and Related Offenses in Sudanese Criminal Legislation 185 Zinā and Related Offenses in Supreme Court Case Law 194

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Unfounded Accusation of Unlawful Sexual Intercourse (qadhf ) Qadhf in Islamic Jurisprudence ( fiqh) 220 Qadhf in the Sudanese Penal Codes of 1983 and 1991 223 Punishment of qadhf 226 Lapsing of qadhf 228

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Alcohol Consumption (shurb al-khamr) 231 Definition and Punishment of Alcohol Consumption in the fiqh 231 The Definition of Alcohol Consumption in the Criminal Codes of 1983 and 1991 233 Punishment of Alcohol Consumption in the Criminal Codes of 1983 and 1991 233 The Lapsing of the ḥadd Penalty for Alcohol Consumption 237

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Ḥadd Theft (sariqa ḥaddiyya) 239 Ḥadd Theft in the fiqh 239 Ḥadd Theft in the Penal Code of 1983 246 Ḥadd Theft in the Criminal Bill of 1988 and the Criminal Act of 1991 259

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Highway Robbery (ḥirāba) 270 Ḥirāba in the fiqh 270 Ḥirāba in the Penal Code of 1983 273 Ḥirāba in the Criminal Act of 1991 287

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Apostasy (ridda) 296 Apostasy in the fiqh 296 Apostasy in the Penal Code of 1983 299 Apostasy in the Criminal Act of 1991 300

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Homicide and Bodily Harm 304 Homicide and Bodily Harm in the fiqh 304 Homicide, Bodily Harm, and Their Punishment before and after the Penal Code of 1983 317 Homicide, Bodily Harm, and Their Punishment in the Criminal Act of 1991 337

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Taʿzīr 364 Taʿzīr in the fiqh 364 Taʿzīr in the Penal Codes of 1983 and the Criminal Act of 1991

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Human Rights and Sudanese Islamic Criminal Law Survey of Human Rights Violations 373 Survey of Severe sharīʿa Penalties 384

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Conclusion 393 Development in Legislation 393 Development in Procedure and Evidence Supreme Court Case Law 402 Political and Historical Factors 408 Final Thoughts 412

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Glossary of Arabic Legal Terms 417 References 421 Sudanese Laws and Legislative Projects 436 List of Quoted Supreme Court Cases 438 Index of People and Places 441 Index of Subjects and Terms 446

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Acknowledgments This study is based on my doctoral thesis which I defended in June 2013 at the University of Amsterdam. It could not have been written without the practical help, the encouragement, and the intellectual stimulation of a multitude of people. To all of them I extend my sincere gratitude. Most of all I would like to thank Prof. Rudolph Peters, who readily accepted me as a doctoral candidate and patiently followed my work over more than nine years. His careful reading and constructive advice on structure and errors have improved my thesis tremendously. Prof. Aharon Layish triggered my renewed interest in the criminal legislation of the Sudan during an editorial board meeting of “Islamic Law and Society.”1 He also gave valuable advice and encouragement as one of two readers commissioned by Brill to evaluate my thesis. I am equally grateful to the second, anonymous, reader who greatly contributed to the successful revision of my thesis by pointing out its shortcomings and areas for improvement. Prof. Sean O’Fahey and Prof. Knut Vikør welcomed me at the University of Bergen and helped me to locate important source material in their collection. Dr. Sami A. Al Deeb Abu-Sahlieh diligently guided me through the excellent collection of the Swiss Institute of Comparative Law in Lausanne. Dr. Silvia Tellenbach welcomed me at the Max-Planck-Institute for Foreign and International Criminal Law in Freiburg i. B. and kindly discussed my research project. Dr. Hervé Bleuchot invited me to Aix-en-Provence and did not allow me to leave before I had filled my suitcase with a large collection of books, articles, and important Sudanese legal documents in his possession. Dr. Hanspeter Mattes of the Deutsches Orient-Institut in Hamburg generously presented me with an important collection of newspaper clippings on Sudanese affairs. Dr. Mathias Diederich, former director of the daad Information Centre in Khartoum, and his wife Joanna generously offered their hospitality during my second trip to the Sudan. Dr. Gunnar Weimann, who wrote his dissertation on Nigerian Islamic criminal law, was an important intellectual “sparring partner” over many years. My debt to many Sudanese is great. Unforgettable is the late ʿAbdallāh Badrī, who, on Prof. Muddathir ʿAbd al-Raḥīm’s recommendation, agreed to meet me in Khartoum and then, subsequently, went out of his way to support my

1 My earlier research on the Sudan was inspired by Prof. Baber Johansen (Harvard University) in the early 1990s and resulted in an ma thesis (published by the Deutsches Orient-Institut in Hamburg in 1992).

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research project during my entire first trip. Thanks to him many doors opened. For me he will always epitomize Sudanese hospitality. Prof. ʿAwaḍ al-Karsanī also did not hesitate to give me access to his large network of contacts. It goes without saying that I am deeply indebted to the many Sudanese judges, lawyers, and members of the legal professions, as well as academics and politicians, who welcomed me to their homes and offices to discuss my questions. I would also like to thank the Amsterdam School for Cultural Analysis (asca) which accepted me as an external doctoral candidate and financed part of the costs incurred. Finally, I am very grateful to the editorial board of sils who accepted my book into the series, to Nicolette van der Hoek and Nienke Brienen-Moolenaar of Brill who skillfully guided me through the publication process and to Valerie Joy Turner, for her professional proofreading and editing and her great patience.

Some Remarks on Transliteration, the Use of Arabic Terminology, and Gender-Sensitive Language I have utilized the Arabic transliteration system of the International Journal of Middle East Studies, which is widely used among specialists writing in English. This academic transliteration renders Arabic terminology and quotations understandable to the initiated reader. However, when transliterated proper names have a common English version, I have used that. I often use Arabic terms (e.g., zinā, qadhf, ḥirāba, etc.) when the English translations are long and cumbersome.2 For the reader who is not familiar with these terms I have included a glossary of Arabic Islamic legal terms used in the text. Finally, I have used masculine pronouns in most cases, in order to ensure the readability of the text. 2 For example, qadhf instead of an “unfounded accusation of unlawful sexual intercourse.”

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Introduction The Study of Islamic Criminal Law in the Sudan Islamic criminal law is arguably the most hotly debated feature of Islamic law today. Some of its more publicized characteristics, especially corporal punishments, for example, amputations and stoning, but also flogging, are loathed in the West. Cases of (imminent) sharīʿa application invariably make their way onto the front pages of western newspapers. Next to Saudi Arabia, Iran, Pakistan, Nigeria and others, Sudan is one of the countries that receives substantial media attention when ostensibly sharīʿa-related cases make it to the headlines. An example is the 2009 case of Lubna al-Ḥusayn, who was arrested by the Sudanese Public Order Police for wearing trousers. A more recent case is that of Mariam Yahya Ibrahim Ishag, who, in spring 2014, was sentenced to hanging for alleged apostasy. Newspaper and Internet reports, however, offer limited coverage. Often, while decisions are reported about lower courts rulings, readers wait in vain for a follow-up on the story. We seldom hear about the later stages of such cases. How did the court of appeal or the Supreme Court of the Sudan decide? Did they uphold the death penalties by stoning or hanging taken by the lower courts? We are not told. Was the stoning, as the initial articles suggested, ever carried out? The information is not provided. Journalists are not academic researchers and do not delve deeply into legal documents, much less complex court decisions written in Arabic. At any rate, they normally do not have the resources (or the interest) to followup on a particular legal procedure that might drag on for months or years. While media interest and, as a precondition thereof, public interest in sharīʿarelated matters is often rather superficial and short-lived, academic research focusing on the application of modern versions of Islamic law in the Middle East and beyond has been growing steadily over the years. While pertinent studies are lacking, circumstantial evidence, however, tells us that such interest is unevenly distributed with regard to the areas of Islamic law that are studied and the countries that apply Islamic law. To be sure, the Sudan is one of the countries whose legal system has not been studied in depth by scholars of Islamic law. Critical studies of Sudanese Islamic law in general are scarce. This is true for family law, which, generally speaking, receives a good amount of attention by researchers, but it is especially true for the field of Islamic criminal law. To be precise, the interest of

© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_002

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western researchers began to decrease in the period when, under Numayrī, the Sudanese legal system was fully Arabized and publications concerning legal matters (legislation, commentaries, legal reports, decisions of appeals, the supreme and, later, the constitutional courts, etc.) were published almost entirely in Arabic.1 While the replacement of English by Arabic is a normal effect of decolonization, the study of the Sudanese legal system and its multiple aspects has thus become impossible for western scholars who have not mastered Arabic. Consequently, western literature about the Sudanese legal system has become even more scarce.2 Interest in Sudanese Islamic criminal law, however, flared up again when, in 1983, Numayrī introduced an Islamized penal code as part of the September laws. Next to a large number of academic articles, mostly dealing with the political aspects of Islamization, two landmark monographs deserve to be mentioned here. The most detailed and until now unsurpassed study of the Islamization of criminal law under Numayrī is the research of Aharon Layish and Gabriel Warburg that was published in 2002.3 This seminal work is an in-depth study of the Islamization of the Sudanese legal system under Numayrī from 1983 to 1985, with a focus on Islamic criminal law. The study is unmatched for its richness in details and will probably remain so for some time to come. Despite its publication in 2002, however, the book does not address the Criminal Act of 1991 and its application in the Supreme Court. A second book that deserves mention, and which is certainly the most detailed study of the anthropology of criminal law in the Sudan until today, was authored in 1994 by Hervé Bleuchot (in French). Bleuchot traces in minute detail the anthropological and historical development of the Sudanese criminal law from 1820 until the end of the 1980s.4 Bleuchot’s groundbreaking work is an indispensable starting point for all those interested in the history of criminal law in the Sudan in its legal and geographical contexts. He did not, however, address the application of the Criminal Act of 1991 by the judiciary, nor did he analyze court decisions with regard to Islamic criminal law. In Anglo-Saxon academia, Bleuchot’s work is seldom taken into account. It is, however, the only

1 The sljr still published a few of its decisions in English as late as 2004; as of the beginning of the new millenium, a few judges of Southern origin still worked at the Supreme Court, publishing in English in the sljr. 2 Some libraries also stopped collecting sljr when English was dropped and Arabic was introduced. 3 Aharon Layish and Gabriel Warburg, The Reinstatement of Islamic Law in Sudan under Numayrī (Leiden: Brill, 2002). 4 Hervé Bleuchot, Les Cultures contre l’Homme? Essai d’Anthropologie Historique du Droit Pénal Soudanais (Aix-en-Provence: Presses Universitaires d’ Aix-Marseille, 1994).

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study on this scale that presents a synopsis of the different legal subsystems (common law, Islamic law, customary law) that are important for the practice of criminal law from the advent of the Condominium, and also pays attention to regional differences.5 With regard to the Criminal Act of 1991 and its application in the courts, academic articles, let alone monographs, are scarce. Two articles, however, must be mentioned. Scholz, a German judge and expert on Mālikī law, examines whether and to what degree the sections on ḥadd crimes in the Criminal Act of 1991 and the Evidence Act of 1993 are in harmony with the sharīʿa. Sidahmed analyzed some judgments of zinā cases dealt with by the Supreme Court.6 He argues that an accusation of zinā based on pregnancy disadvantages women in comparison to men. In addition, if the pregnancy is the result of rape, such an accusation might turn victims into offenders facing possible capital punishment. The political situation after the 1989 takeover of the military-National Islamic Front regime is another factor that has discouraged academic research; the ensuing environment has not been conducive to visits to the Sudan and thus to field work. Research on the Sudan has, it seems, concentrated either on historical topics or, when dealing with the 1990s, focused on the ongoing civil war in the South, human rights, the Muslim Brotherhood and its political manifestations, Islamization in general or the political development of the al-Bashīr regime. In addition, within the wider field of Middle East studies, the Sudan, despite having been the largest country in Africa, is considered unattractive as an object of study and marginal by many. In brief, the book at hand undertakes to fill an important gap in the available literature on the more recent developments of the Sudanese legal system, with a special focus on Islamic criminal law on the one hand and its administration by the Sudanese Supreme Court on the other. Apart from the lack of literature, the Sudanese case deserves attention for a number of reasons. The Sudan is a multi-ethnic, multi-religious, and multi-lingual country, and this remains true for the North after the country split into two independant states. Introducing laws that are based on and follow the heritage of one religious group only, as dominant as it may be numerically, was and is highly problematic. It is therefore not surprising that the question of the sharīʿa has played an important 5 The study contains an important bibliography covering the major literature on criminal law in the Sudan until the 1980s. 6 Peter Scholz, “Die koranischen Delikte (ḥudūd) im sudanesischen Strafrecht,” in Zeitschrift für die gesamte Strafrechtswissenschaft 112, no. 2 (2000): 431–460; and Abdel-Salam Sidahmed, “Problems in Contemporary Applications of Islamic Criminal Sanctions: The Penalty for Adultery in Relation to Women,”British Journal of Middle Eastern Studies 28, no. 2 (1 November 2001): 187–204.

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and divisive role in the Sudan’s post-independence politics. The question of the sharīʿa was an important factor in regime changes at two junctures. In 1969, when the introduction of an Islamic constitution was imminent and was only foiled by Numayrī’s coup d’etat and, twenty years later, in 1989, when another coup prevented the abolition of sharīʿa-based penal law. In fact, for decades the sharīʿa has served as a powerful symbol for those who advocated its introduction and for those who rejected the possibility of being judged by it. For the former, the sharīʿa was (and continues to be) the epitome of their Muslim identity, while for the latter it represents an inferior status as dhimmīs. In both cases, the introduction of the sharīʿa beyond family law (initially in 1983, and when it was reconfirmed in 1991) took place at the hands of autocratic regimes. Both regimes, that of Numayrī in 1983 and that of al-Bashīr (in collusion with al-Turābī), claimed to be fulfilling the will of the Sudanese people. However, the introduction of the sharīʿa was not based on a democratic mandate. For al-Turābī and the Muslim Brotherhood, who, under different names, agitated for the introduction of the sharīʿa for decades, the 1989 coup d’ état finally set the stage to introduce the centerpiece of their program, the sharīʿa. True, the National Islamic Front, as the then most recent incarnation of the Muslim Brotherhood, could not claim complete originality. Former president Numayrī had taken the lead in 1983 and introduced a hurried, problematic, and heavily criticized version of Islamic criminal law. But, in 1991 the situation was different, for a variety of reasons. Al-Turābī had gained complete control of the choreography of events and he was the author (or at least he controlled the drafting process) of the Criminal Act of 1991.7 Ṭatbīq al-sharīʿa, or the application of the sharīʿa, is a staple item and battle cry for most Islamist movements from Morocco to Indonesia. The Sudan, however, is the only Arab (-dominated) country where an Islamist movement gained power and was at liberty to realize what it had demanded for decades, that is, the introduction of Islamic criminal law. These factors combined make the Sudanese version of Islamic criminal law a highly relevant case study. Unlike Saudi Arabia and other countries of the Arabian Peninsula, where the (uncodified) sharīʿa has traditionally been the law of the land, in the Sudan codified legislation has been the standard at least from the beginning of the Anglo-Egyptian Condominium. This did not change with the advent of Islamist policies in 1983 or when a military-Islamist regime seized power in 1989. What changed, however, was the content and legislative techniques used, first, to Islamize existing criminal law. As I explain in more detail below, the Islamization of criminal law under Numayrī was undertaken

7 The Criminal Act of 1991 is based on a 1988 draft. For details, see below.

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in a hurry and by a group of relatively junior jurists who lacked the necessary expertise and time. Even many of those who, in principle, were in favor of Numayrī’s legislative revolution, did not appreciate the speed or the superficiality of the measures. The result of this haphazard approach was less than satisfactory from the point of view of traditional fiqh. Important features of sharīʿa-based criminal law were missing, a number of taʿzīr crimes became ḥadd crimes punishable by ḥadd penalties, and so forth. In short, an existing well-devised legal code that had been operational and tested was transformed, almost overnight, into a hybrid code that left many questions as to its application unanswered. In fact, grafting provisions from the fiqh, in a selective and often arbitrary manner, into an existing code, had a number of repercussions that posed serious problems at many levels of the court system. These issues worked their way up to the Supreme Court, which has the authority to devise and impose authoritative solutions. Many of these problems, though not all, as I explain below, were solved with the introduction of the Criminal Act of 1991, an overhauled criminal code that was undertaken in a conscientious effort to avoid gross inconsistencies with the fiqh and to be more comprehensive overall. This new criminal law was still in effect in 2016 and will likely remain so as long as the al-Bashīr regime stays in power. The codification of the sharīʿa, that is, for the most part, of legal opinions found in the fiqh,8 is a complex, highly political, and controversial affair. It is complex because, in the process of codification, legislators make many choices about methods and solutions, that is, definitions of crimes, punishments, and criminal procedure. Given the immense variety of legal opinions in the handbooks of the Muslim jurists ( fuqahāʾ) and the possible methods of legal reform, the end result of codifying the sharīʿa cannot but create what we might call a “national sharīʿa.” The juridical form and actual application of this “national sharīʿa” is specific to each country and is distinct from the ways in which other Muslim countries codify and apply what they perceive as sharīʿa. In addition to the complexity of the codification process, legislators must make methodological choices. The “hermeneutical toolbox” of uṣūl al-fiqh, that is, the methodology used by jurists to interpret God’s law and transform it into legal rules, provides modern legislators with a variety of possibilities. When applying these methods, legislators decide how faithful they want to be to the fiqh. Possibilities range from an “orthodox” codification—a contradiction in terms, since traditional fiqh is not codified—to one that is entirely utilitarian. While those who tend toward utilitarianism manipulate (hermeneutic) principles of the fuqahāʾ

8 Islamic jurisprudence, legal doctrine.

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to their own advantage, liberalists go one step further and jettison these principles altogether.9 The codification of the sharīʿa is a political endeavor because the introduction of codification as such, the nature of the codification, and the course of its subsequent application are political choices. It is the political regime that, by deciding to introduce the sharīʿa, makes a strong political statement, and thus appeals directly to its constituency. The sharīʿa is, in the absence of free and fair democratic elections, an effective tool to enhance a regime’s Islamic legitimacy in the eyes of its followers. Since the existence of the sharīʿa in the statutes is highly symbolic, it also effectively demarcates the front line between the Islamists and other political camps that oppose its introduction as such, or oppose it in its present form and application. Thus, on the political and juridical levels the issue of the sharīʿa is highly controversial. Controversial debates focusing on the introduction of the sharīʿa started before Sudanese independence and continue until today. Various political camps with very different ideas about Sudanese identity have tried to steer the country’s legal system in different directions, and their success has depended on which camp had the upper hand at any given time. These changes have not come to an end and in all likelihood, will continue until the northern elite develops a common vision that accommodates the enormous religious, ethnic, political, and geographic diversity of the Sudan. It is against this political and legal background that I have undertaken this study about the development of the Sudanese Islamic criminal law from 1983 onward. A word on terminology is necessary at this point. I use the term “sharīʿa” to refer to a narrow definition of sharīʿa, that is, to the legal normativity of sharīʿa and not to Islamic normativity in the fields of ritual, morality, and law, i.e., sharīʿa in its totality.10 I use the term “Islamization” and its derivatives to denote the legal-religious sources of the new criminal codes and the fact that legal codes that were free of fiqh-derived elements now contain such elements. With the use of “Islamization” I do not make any judgment as to the correctness of its Islamic nature or the claim of the new codes to Islamic authority. Clearly, views about “how Islamic” the new codes are, or whether or not they are “within the sharīʿa,” are controversial issues. Some argue that ʿulamāʾ who oppose the Islamization (by way of codification and legislation) of the Sudanese criminal law claim that the use of these techniques is a distortion of the sharīʿa and that neither Numayrī’s “legal revolution,” nor what followed it in 1991, can claim 9 10

Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), 214ff. Rudolph Peters and Peri Bearman (eds.), The Ashgate Research Companion to Islamic Law (Farnham and Burlington: Ashgate, 2014), 1.

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any legitimacy from the point of view of the orthodox sharīʿa. Proponents of this view would therefore argue that the entire Islamization of Sudanese law must be considered a stage in the development of Sudanese legal history, but it cannot be construed as a part of the sharīʿa in modern times. It is clear that the ʿulamāʾ, as Muslims and trained experts, can speak with authority and legitimacy about the matter. For outsiders, that is, non-Muslims (scholars or not), the situation, according to some western scholars, is different. They “… are not competent to determine for Muslims what Islam and the shari’a is.”11 Naturally, I am aware of the fundamental differences between orthodox sharīʿa and modern fiqh-based codification. This difference is at the heart of my research. However, as a western, non-Muslim observer, I do not consider it my task to judge whether or not Sudan’s Islamic criminal law is truly Islamic or within the sharīʿa.

Research Questions A memorandum accompanying the Criminal Act of 1991 indicates what the authors of the Criminal Act of 1991 did when drafting the code, what they believe they did, and what they want the Sudanese citizen to believe they did. The document represents a mixture of facts and propaganda. It is somewhat doubtful that the “Sudanese masses” indeed called for an Islamic penal code. Another question that needs closer investigation is the nature and role of the sharīʿa in precolonial Sudanese history, was it such that its “re”-introduction can be claimed to strengthen authenticity? We must also analyze the methodological expedients the authors allude to. Was the sharīʿa really the main source of the 1991 code? The authors of the code claim to have combined ijtihād and the orthodox schools. How and where and to what extent did they use ijtihād? Which orthodox schools did they draw on? Did they have preferences? Were the opinions that were used selected in a systematic way; did the authors of the 1991 code show a clear tendency or was the selection rather arbitrary? They further claim, rather surprisingly, that orthodox jurisprudential terminology was used only inasmuch as it was compatible with “modern and current (legal) terminology.” In other words, “modern and current legal terminology” predominated. How can we explain this if the introduction of the sharīʿa was indeed the motivation behind the new code? How can we assess the relation between

11

Rudolph Peters, “From Jurists’ Law to Statute Law or What Happens When the Shari’a is Codified,” Mediterranean Politics 7, 3 (2002), 93.

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sharīʿa and non-sharīʿa elements? In order to analyze the Penal Code of 1983, the Criminal Act of 1991, related laws, and Supreme Court case law, I therefore try to answer three clusters of questions. Cluster 1: The Sudanese Islamic Criminal Law and Its Legal and Political History The main question of this first cluster concerns the historical sources and models of the Penal Code of 1983 and the Criminal Act of 1991. I examine which articles of the two codes are derived directly from the sharīʿa and which articles are not. When they do I establish the sources in the fiqh, and when I cannot locate any connection to the sharīʿa I try to establish their origins by closely examining earlier codes. I investigate the relation between the sharīʿa-based parts of the Criminal Act of 1991 and its predecessor, the Penal Code of 1983. What has the Criminal Act of 1991 kept in terms of sharīʿa-based elements? In what areas have major changes been made and what is the general tendency of these changes? In the context of this comparison I ask to what extent have Sudanese legislators succeeded in redressing the flaws of the 1983 code in terms of bringing it more into harmony with the provisions and basic principles developed by traditional fiqh. This first cluster also investigates the (legal-) historical development of (Islamic) criminal law beginning with the Fūnj and Dār Fūr sultanates and stretching into the present, but with a main concentration on the phase that began with the introduction of the laws of September 1983. I investigate whether or not there is any substance to the claim that the modern introduction of Islamic criminal law is a reconstitution of earlier models. In order to assess the legal heritage before the introduction of the September laws it is important to ask about the respective roles of the sharīʿa, common law, and customary law and whether these have fundamentally changed with Numayrī’s “Islamic legal revolution.” Is the sharīʿa now really dominant with regard to the non-sharīʿa environment in which it operates? And if it is not, how can we characterize this relationship? Cluster 1 further asks whether Sudanese legislators have managed to detach the criminal law from its colonial heritage. Does its English heritage continue to exert an influence in Sudanese Islamic criminal law and if so, where and in what ways? Comparing the Criminal Act of 1991 with the Penal Code of 1974 answers the question of whether legislators under al-Bashīr managed to completely eliminate the secular legal heritage of the Condominium that had survived even in the September laws of 1983.

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Cluster 2: Law in Action: The Application and Interpretation of Sudanese Islamic Criminal Law The second cluster focuses on law in action, that is, the actual application of sharīʿa-based laws as found in the various criminal codes. I examine three aspects: first, the interpretation of substantive law in the two sharīʿa-based criminal codes; second, procedure and proof; and third, the actual enforcement of sharīʿa-based offenses in judicial practice. With regard to substantive law I focus on legislation, that is, the two Islamized codes of 1983 and 1991 on the one hand and their interpretation by the Supreme Court on the other hand. I ask about the general tendency in legislation and Supreme Court case law, is it fullscale application or only a restrained application? If the latter is the case, why? How does the Supreme Court argue cases in which ḥadd or qiṣāṣ punishments are not confirmed? I further analyze how the Criminal Procedure Acts of 1983 and 1991 and the Evidence Acts of 1983 and 1993 complement the respective criminal codes. Which tendencies can be detected? Have Sudanese legislators taken advantage of the procedural mechanisms devised by the fuqahāʾ to limit the application of the ḥudud? How do these procedures relate to the sharīʿabased criminal law found in the Penal Code of 1983 and the Criminal Act of 1991? How are the roles of the various legal actors defined, especially the role of the Supreme Court? How does the Supreme Court understand its own role, as the highest court in the Sudan, with regard to the application of Islamic criminal law? Finally, I try to assess the enforcement of Islamic criminal law in actual judicial practice. Which punishments are imposed frequently? Which are not and why? What are the possible reasons for the limited application of specific punishments? Can these tendencies to impose some punishments and not others be corroborated through an analysis of independent sources, such as human rights reports from Amnesty International and Human Rights Watch? Further, I inquire about the political background of the introduction of Islamic criminal law and the reasons for the current extent of its application, in an effort to explain the contradiction between government rhetoric and quantitative dimensions of de facto Islamic criminal law application in the Sudan. Why has the government refrained from a more resolute application of Islamic criminal law, when, after 1989, the military-Islamist regime had the power to enforce the very “sharīʿa application” it had demanded for decades?

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Cluster 3: Sudanese Islamic Criminal Law and Human Rights Violations Cluster 3 focuses on human rights violations and examines where the present Sudanese Islamic criminal law is in conflict with the various international human rights covenants and conventions the Sudan is party to or is not yet party to. Among the covenants and conventions, I look at the International Covenant on Civil and Political Rights (iccpr), the International Convention on the Elimination of All Forms of Racial Discrimination (icerd), the Convention on the Rights of the Child (crc), and the Convention on the Elimination of All Forms of Discrimination against Women (cedaw). I also ask, in what areas does Islamic criminal law in the Sudan violate the principles of equality before the law and freedom of religion, the ban on cruel, inhuman, and degrading punishment, and the rights of children. With regard to equality before the law, I ask questions pertaining to the role of the citizen and his status as a subject of Islamic criminal law in a multi-ethnic and multi-religious nation state, in contrast to concepts found in Islamic criminal law. How does the interaction between criminal codes and procedural codes on the one hand, and jurisdiction with regard to the rights of non-Muslims and women on the other hand, function? What is the position of women and non-Muslims in Sudanese criminal jurisdiction and legislation? Do the codes follow the leading opinions of the four Sunnī schools strictly? What role do modern notions of the equality of all citizens play? How does the concept of equivalence (kafāʾa) fit into the issue? Does the concept of inviolability (ʿiṣma) in cases of homicide still play a role? Sudanese constitutions, for example, the constitution of 1998, guarantee equality before the law and many other rights, therefore, I ask where and in what ways is Islamic criminal law consistent or in conflict with the constitutions in force when Islamic criminal law codes were introduced and applied and how has the Sudanese government dealt with the inconsistencies.

Sources Used The present work is based on three primary sources, two written and one oral. The two written primary sources are the Islamized penal codes of 1983 and 1991 and other relevant legislation directly connected to it, and Supreme Court case law related to the application of Islamic criminal law. Supplementing these two sources I also conducted interviews with Supreme Court judges and with Sudanese politicians and observers.

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Legislation With regard to legislation, an important question relates to whether the legislators, the parliament or others are democratically elected and under what circumstances the legislation in question was effected. In general, the legislation used in this study covers a time span from 1924 to 2015, that is, from the time when the Sudan was ruled by the British under the Anglo-Egyptian Condominium until the present military-Islamist regime of al-Bashīr. After independence, the Sudan has known only short phases of democratic rule. The main codes treated in this study were promulgated during the rule of two authoritarian regimes, both of which came to power through military coups d’ état. The so-called September laws of 1983, that is, the bulk of the laws Islamizing the Sudanese legal system, were promulgated as presidential decrees. None of the major laws of Numayrī’s “juridical revolution” resulted from Sudanese parliamentary initiatives. After they had come into force, parliament complied with Numayrī’s wishes and ratified the September laws, and thus avoided a major confrontation with the president. The parliamentarians did not want to risk opposing Sudan’s Islamization, nor did they want to give the president a motive to dissolve parliament, the president’s right, according to Article 108 of the 1973 constitution.12 The second Islamized criminal code, that is, the Criminal Act of 1991, and all relevant legislation that followed, was also enacted by a dictatorial military regime, this time under the influence of al-Turābī’s National Islamic Front. Again, given the far-reaching control of the relevant political and social institutions of the regime of al-Bashīr and its National Islamic Front supporters and the lack of fair and free elections, it is clear that as of July 1989, Sudanese legislation, criminal and other, lacks democratic legitimacy. It is against this background that we must understand the legislative material I study. While we may not approve of the fact that the Sudanese electorate had little voice in electing the bodies from which the Islamized legislation emanated, whatever their legitimacy might be, these laws are in force, they have been for a substantial period of time, and they are likely to remain so for some time in the future. Given their impact on the lives of the Sudanese, these laws deserve academic attention and study. Contemporary researchers face a major problem, the difficulty of quantifying the application of Islamic criminal law in the Sudan. We do not have a reliable study mapping the influence of state-applied criminal law. It is clear

12

For more detail, see Olaf Köndgen, Das Islamisierte Strafrecht des Sudan. Von seiner Einführung 1983 bis Juli 1992 (Hamburg: Deutsches Orient-Institut, 1992), 40–41.

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though, that the sharīʿa / fiqh-based parts of the Penal Code of 1983 were never really enforced in the South because of fierce resistance, and in 1991 legislators chose to exempt the South from the sharīʿa-based articles.13 It is therefore safe to say that in about a quarter of the Sudan’s territory the legislation under discussion could either not be enforced or was not applicable. The real impact of the legislation under discussion is further limited by the strong role of customary law in the Sudan. Communities may often choose to settle crimes potentially punishable by sharīʿa-based articles, for example, illegitimate sexual intercourse or bodily harm, among themselves without resorting to the authorities. While customary law is still of major importance in the Sudan, especially in rural areas, we do not have pertinent statistics as to the scope of its application. It is therefore very difficult to quantify its impact in relation to state-mandated law.14 With regard to legislation, it is relatively easy to access reliable, that is, official, editions of the different codes that are currently in effect, at least in Khartoum. The ministry of justice has published all relevant codes and they can be purchased from the ministry.15 The multi-volume series Qawānīn al-Sūdān, in which all the laws in force can be found, is also published by the ministry of justice. The now defunct “Penal Code of 1983,” however, was not republished in this series and is more difficult to find these days.16 An invaluable source with regard to Sudanese laws is a compact disc produced by the Institute of Training and Law Reform (Maʿhad al-Tadrīb wa-l-Iṣlāḥ al-Qānūnī) titled ‘Encyclopedia of the laws of the Sudan’ (Mawsūʿa qawānīn al-Sūdān). This cd contains most major Sudanese laws from 1901 until 2003.17

13 14

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For ḥudūd and qiṣāṣ, see Criminal Act of 1991, art. 5. For a recent study of Sudanese customary law, see Francis M. Deng, Customary Law in the Modern World: The Crossfire of Sudan’s War of Identities (London and New York: Routledge, 2010). In 2009, the ministry of justice had a small booth facing the street in front of the ministry where lawyers and those concerned can buy copies of all important laws. The prices are moderate and the printing quality is good when the original editions can be obtained. Photocopies of current legislation are also sold. I obtained my copy from Dr. Hervé Bleuchot, Aix-en-Provence, to whom I am very grateful for having supported my PhD project in many ways. Maʿhad al-Tadrīb wa-l-Iṣlāḥ al-Qānūnī [Institute of Training and Law Reform], Mawsūʿa qawānīn al-Sūdān min 1901 ilā 2003 [Encyclopedia of the laws of the Sudan from 1901 to 2003], compact disc (Khartoum, 2003).

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Supreme Court Case Law The Supreme Court is the highest court in the Sudan and its interpretations of the law are authoritative.18 Because it is the highest judicial body that reviews cases, its decisions make up a corpus of precedents which then serve as references for the future decisions of lower courts. Structure and Responsibilities of the Supreme Court The Supreme Court consists of seventy judges.19 Panels of three judges, presided over by the most senior judge, take decisions by a simple majority. This is a clear departure from the classical Islamic court system in which decisions were taken by one qāḍī only.20 With regard to criminal matters, cases concerning the death penalty, single and cross-amputations are decided by a five-member panel.21 Normally decisions are final;22 it is only when the chief justice deems that a decision contradicts the sharīʿa or contains errors pertaining to the law that a panel of five judges reviews its application or its interpretation.23 Members of the Supreme Court are appointed by the president of the Sudan at the suggestion of the Supreme Council of the Judiciary. They are normally chosen from among members of the courts of appeal.24 The

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Apart from the constitutional court, which only rules on questions of constitutionality. Lists of Supreme Court judges can be found in the sljr. The lists contain more than seventy names. At any given time, a certain number of judges are not on active duty, but are seconded or work in the Gulf. Chibli Mallat, Introduction to Middle Eastern Law (Oxford: Oxford University Press, 2009), 213. Judiciary Act of 1986 (Qānūn al-haiʾa al-qaḍāʾiyya li-sana 1986), art. 17 (2). We must also note that the Constitutional Court Act of 1998 gave the constitutional court the power to review Supreme Court judgments. This led the constitutional court to reduce a number of convictions (entailing the death penalty) for intentional homicide to culpable homicide not amounting to murder. It made these reductions under the Criminal Act of 1991, art. 131, based on the right to life as guaranteed under the Sudanese constitution. The power to review Supreme Court cases, however, was abolished in the Constitutional Court Act of 2005. Thus, the constitutional court no longer acts as an “appellate body in homicide cases.” In more recent cases, that is, as of 2005, the constitutional court has confirmed previous convictions involving the death penalty. Compare Amin M. Medani, “A Legacy of Institutionalized Repression: Criminal Law and Justice in Sudan,” in Lutz Oette (ed.), Criminal Law Reform and Transitional Justice: Human Rights Perceptions for Sudan (Farnham and Burlington: Ashgate, 2011), 69. The majority of judges on such a panel must not have taken part in the original decision which is being reviewed. Criminal Procedure Act of 1991 (amended 2002), art. 188 (a) 1–3. Other persons who satisfy the requirements can also be appointed.

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Supreme Court is divided into departments that deal with civil matters, criminal matters, family matters and religious endowments of Muslims, and family matters and religious endowments of non-Muslims.25 The jurisdiction of the Supreme Court over criminal matters is regulated in the Criminal Procedure Act of 1991 which stipulates under the title “confirmation of judgments” that “Every death sentence, sentence to amputation or life imprisonment shall be submitted to the Supreme Court, when becoming final, with the intent of confirmation.”26 In addition, the Supreme Court can review any criminal lawsuit, either of its own accord or upon petition, in order to ensure “soundness of procedure and achievement of justice.”27 Here we should mention that the decisions of the qāḍī in a classical Islamic court were considered final and could not be appealed in a formal way. Only the sultan or the caliph could review such decisions.28 The Supreme Court has a variety of ways to review the judgment of a lower court. It can simply confirm the judgment as a whole or it can confirm the conviction, but change the penalty. It can also change a conviction for a particular offense into a conviction for another offense. Further, it can return the decision to the court of first instance for revision. The Supreme Court can also quash the decision of the lower court and thereby either annul the criminal suit altogether or order a retrial. While these are the more important outcomes of a review by the Supreme Court, in general the Criminal Procedure Act of 1991 does not limit the Supreme Court’s powers of review. For the purpose of ensuring soundness of procedure and achievement of justice it can decide as it may deem fit.29 The Role of the Supreme Court in Controlling the Application of the sharīʿa The Supreme Court has a key role in controlling the application of Islamic criminal law, within the parameters set by the al-Bashīr regime. The Supreme Court serves as a mechanism of control and correction for the lower levels of the judiciary, whose decisions concerning executions and amputations are automatically reviewed. While the purges of the judiciary in the early 1990s created a body of judges, the majority of whom cooperate, the regime cannot be completely certain that it will obtain the desired results without additional 25 26 27 28 29

Judiciary Act of 1986 (Qānūn al-haiʾa al-qaḍāʾiyya li-sana 1986), art. 17 (1). Criminal Procedure Act of 1991, art. 181. Criminal Procedure Act of 1991, art. 188. Mallat, Introduction to Middle Eastern Law, 213. Compare Criminal Procedure Act of 1991, art. 185 (a–f) and art. 188.

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measures. The lower echelons of the court system, in particular, have shown some zeal in applying Islamic criminal law, and this must be controlled and corrected. It is therefore extremely important that the political system can fully trust the personnel of the Supreme Court. The composition of the seventy or so Supreme Court judges is determined by the president of the republic, who appoints them and the chief justice. The chief justice in turn selects the judges in charge of specific cases. This is important because judges have different opinions and approaches, and might belong to different religions and some might be less amenable than others.30 All Supreme Court judges I interviewed insisted, however, that there was no political interference in their daily work and that their judicial independence was respected.31 While this claim cannot be corroborated,32 it is clear that the main mechanism of ensuring control takes effect at an earlier stage. The selection of the judges who work at the Supreme Court in general, and the selection of the judges who work on specific cases is vital. There are, however, other filters to ensure quality control of the Supreme Court’s judgments. In cases concerning ḥadd and qiṣāṣ, the panel of judges that deliberates these cases consists of five instead of the normally required three judges. In the unlikely event that such a panel of five judges takes a decision that contradicts either the (positive) law (qānūn) or the sharīʿa (aḥkām al-sharīʿa alIslāmiyya), the chief justice has the right to constitute another five-member panel.33 The majority of this panel must be judges who had no part in the original judgment. Since the composition of this panel is again determined by the chief justice, this provision serves as a last resort against Islamic criminal law-related judgments that are either flawed or not in harmony with the desired general policy. Given the many fronts, political and military, the regime faces, it is extremely important that they not arouse unwanted international media

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One Supreme Court judge who belonged to the small group of Christian Southerners, and who was still active in 2004, related a telling incident: he was assigned a criminal case which clearly fell into the realm of Islamic criminal law. Not having received all relevant internal circulars, he tried to discuss his handling of the case with the chief justice. As a result of this meeting, however, the case was given to another judge. While there was no official rule to this effect, the chief justice was obviously not willing to give Islamic criminal law-related cases to a Christian judge. Interview with Supreme Court judge, June 2004. Interviews with Supreme Court judges, May 2009. Given the results of this study showing that certain ḥadd punishments are applied and others are not, and that some are mainly applied in certain regions, and not in others, political interference is rather likely. Criminal Procedure Act of 1991 (Qānūn al-ijrāʾāt al-jināʾiyya li-sana 1991), art. 188 (a).

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attention. With the different layers of control described here, we can see that the al-Bashīr regime has a firm grip on the general direction and tendency of the application of Islamic criminal law in the Sudan, if not on the details. In this context, we must mention another important instrument of political interference. According to the Criminal Procedure Act of 1991, investigations are conducted by the police under the supervision of the minister of justice/attorney general, rather than under the supervision of a magistrate.34 The minister of justice/attorney general can also stay a case at any time after the completion of the inquiry and before the passing of a judgment, with the exception of cases of ḥadd and qiṣāṣ offenses.35 A decision by the attorney general to stay a case is final and cannot be contested.36 Until the 1990s, the judiciary was responsible for prosecution issues. In this system, judges had multiple roles, acting as judges, supervising criminal prosecutions, and investigating procedures. Since a reform in the 1990s, the minister of justice was given additional powers of prosecution and in fact, the two offices of minister of justice and attorney general are held by the same person. This system is problematic, as it allows the executive, the minister of justice/attorney general to interfere with the judicial functions of the judiciary.37 The Meaning of Precedents It is important to note that the common-law system of precedents is thus continued, even under a regime that has purportedly Islamized its legal system. Precedents, at times even from the period before independence, are indeed quoted frequently. Thus, one can find English quotes of older judgments in the middle of an Arabic text, some even referring to precedents from English jurisdiction. Of course, precedents dating from 1983, that is, from the introduction of the September laws or later, are also taken into account by later decisions. We can say that in the wider system of precedents in the area of criminal law, a new sub-group exists. These are judgments based on the Penal Code of 1983 and the Criminal Act of 1991. That is, the introduction of ḥudūd and

34 35 36 37

See Criminal Procedure Act of 1991, art. 39. Criminal Procedure Act of 1991, art. 58 (2). Criminal Procedure Act of 1991, art. 58 (1). See African Centre for Justice and Peace Studies, “The Judiciary in Sudan: Its Role in the Protection of Human Rights During the Comprehensive Peace Agreement Interim Period (2005–2011).” Available online: http://www.acjps.org/wp-content/uploads/2012/04/The -Judiciary-in-Sudan.pdf. Luṭfī voiced strong criticism of this reduction of the role of the magistrates and the possibility of political interference. Interview with Jalāl Luṭfī, 7 June 2014.

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qiṣāṣ into Sudanese criminal legislation also gave rise to precedents that rely on and derive authority from the fuqahāʾ and their legal reasoning. Clearly, the Supreme Court would not fulfill its role if taqlīd38 were the only method used. Below, I show where and in what ways Supreme Court case law goes beyond the fuqahāʾ and finds new solutions in order to adapt the application of the law to modern requirements. The judgments that have been published are only a selection, usually of landmark cases that were chosen for a special purpose, that is, to make them known to the judiciary who deal with similar cases in their daily professional practice. These legal practitioners have to take them into account, they are bound by them, and must follow Supreme Court case law. Only the Supreme Court itself can issue decisions that supersede and correct earlier ones. When read against the background of the underlying legislation, it becomes clear that the main function of the published judgments is to either fill gaps in the legislation or guide judges as to the correct interpretation of the law. The value of this source lies first and foremost in the fact that the judgments analyzed in this study emanate from the highest court in the Sudan and as such set the principles which all other (lower) levels in the judiciary should follow. Having decided cases relating to Islamic criminal law since 1983, the Supreme Court of the Sudan has gradually created a body of case law that covers a substantial part of the gaps and problems in interpretation that derive from the 1983 and 1991 legislation. This process has not been without troubles. In 1983, Islamic criminal law was introduced, then the execution of judgments based on Islamic criminal law was suspended, and finally, in 1991, a new and completely revised legislation replaced the Penal Code of 1983. These changes followed political developments. Both factors—the legislative and political changes—left their mark on Supreme Court case law. A remark must be made on the quality of Supreme Court judgments as legal documents. Supreme Court judgments refer to the judgments of lower courts, which in turn take into account the testimonies of plaintiffs and defendants and other records pertaining to the investigation. Yet in its final judgments, the Supreme Court judges rarely quote from the statements of the various parties. Instead, cases are presented in a formalized manner that typically contains a variety of standard elements. These elements, including the terminology and juridical jargon used, can be described as a professional code that is employed in order to be understood and recognized by all those who deal with Supreme Court judgments in a professional capacity. Writing about

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The uncritical imitation of legal decisions.

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a nineteenth-century Egyptian criminal case, Peters observes that “during the course of the investigation of a criminal case and in the process of sentencing, the different versions of the facts are transformed into an authoritative account containing almost exclusively the legally relevant elements and presenting a logical and plausible narrative.”39 One can safely assume that this observation is also true for Sudanese Supreme Court judgments, at least to a degree. Supreme Court judges must rely on documents that are produced by lower courts, obviously not under the control of the Supreme Court, and often geographically remote. Their task is not to conduct their own investigations. The researcher working with Supreme Court decisions is thus in a position similar to that of the Supreme Court judges. He cannot know or judge to what degree facts and statements as presented in the judgment reflect the reality of the case or to what degree testimonies have been unduly reduced or even changed by lower courts, in order to mold a more coherent narrative. Researchers, too, are bound by cases as presented in the judgments they are researching. Their task is not to speculate about elements they cannot verify, but to analyze the legal reasoning of the different courts involved, based on the facts and statements in the judgment at hand. In the Supreme Court decisions published in the Sudan Law Journal and Reports (sljr) and dealt with in this study, we find a large variety in terms of quality, volume, topics, and sources used to back up a decision. With regard to quality, in general, decisions tended to become shorter over time. While in the 1980s decisions tended to be longer and more detailed, in the 1990s the average length of a decision in the realm of criminal law decreased. The quality of the decisions is not necessarily related to the length of the arguments used. As noted, in the 1980s the decisions were often longer, but the length of the argument relates more to the contradictory legislation it addresses than to the richness and perspicacity of the arguments. One might argue that as of 1991 the necessity for convoluted and lengthy arguments diminished for two reasons. First, the quality of the underlying legislation largely improved and made the task of the Supreme Court judges easier and, second, many of the important questions had been answered and regulated before 1991. While these two arguments are certainly valid, there might be others which point in a different direction. A former judge who had to leave the Supreme Court for political reasons in the wake of the purges carried out by the al-Bashīr

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Rudolph Peters, “The Violent Schoolmaster: The Normalization of the Dossier in a Nineteenth-Century Egyptian Legal Case,” in B. Dupret, B. Drieskens, A. Moors (eds.), Narratives of Truth in Islamic law (London: MacMillan, 2008), 82.

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regime pointed out to me that the quality of the judiciary in general and of the Supreme Court in particular decreased substantially because many judges trained in common law, often with European degrees, were replaced with regime loyalists.40 According to my informant, these judges were not prone to lengthy legal deliberations and argumentation in their decisions. While this view, centered on common law, is understandable from someone who was forced to leave the judiciary, it must be noted, however, that the common-law tradition, while still clearly visible and dominant, has lost ground as a result of the Islamization measures on the one hand and because of the introduction of a new civil code of Egyptian-French and to a lesser degree Islamic inspiration.41 Given the absence of Islamic law in most parts of the legislation before the September laws, the need for judges with a sound background in Islamic law certainly increased when these laws were introduced.42 It should also be noted that the number of decisions for a given offense varies greatly. Two offenses, unlawful sexual intercourse and alcohol consumption, seem to be handled frequently by the Public Order Police (pop) and thus related cases are decided and punished swiftly. There is no legal obligation for the Supreme Court to review such cases, and it does so only rarely. In the case of zinā, a review by the Supreme Court must take place if a case is treated by the regular court system and involves the death penalty. If the defendant is punished by the Public Order Police (usually by flogging) there is no death penalty involved and the case is not referred to the Supreme Court for review. With regard to apostasy, it is not clear how many cases are reviewed annually by the Supreme Court. Apart from the notorious Ṭāhā case, no other case has been published; this particular case was published for an obvious reason, to rectify a flawed decision that had made a mockery of the principles of legality and fair process. As to ḥirāba (highway robbery), which is a massive disturbance to public order, it is not surprising that its respective penalties are more often executed than those of other ḥadd crimes. It is also not surprising that the highest number of published Islamic criminal law cases are homicide cases, as this type of crime closely relates to public order and social peace. With regard to sariqa ḥaddiyya (theft liable for a ḥadd penalty), published cases are scarcer in the 1990s than they were under the 1983 code and the years following it. As 40 41

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Interview with a former Supreme Court judge, June 2004. Konrad Dilger, “Das sudanische Zivilgesetzbuch von 1971 und sein Verhältnis zu den anderen arabischen Zivilgesetzbüchern,” Zeitschrift für vergleichende Rechtswissenschaft 74 (1974), 39, 46, 58ff. The question of the relevance of the respective academic background of Supreme Court judges is a worthwhile topic to investigate, but goes beyond the scope of the present study.

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we see, the present government is not interested in a high frequency of (potentially widely publicized) amputations; it can thus be safely assumed that given the difficulties of proving theft (that would result in a ḥadd penalty), these crimes are often punished in ways other than amputation, and therefore these cases do not reach the Supreme Court. Structure of Supreme Court Decisions The structure of Supreme Court decisions is somewhat fixed and does not show many variations. After the basmala the deciding court is indicated. Then each judge participating in the decision is named, along with their function, that is, the presiding, most senior judge, and the other members. This is followed by the title of the case, for example, “Government of the Sudan vs …” or “Trial: xy.” Then keywords and the laws concerned indicate the main points of the trial. This is further explained under the next point, mabādiʾ (“principles”), which takes the form of a summary. As a last point before the text of the decision, the name of the defendant’s lawyer is given. The text of the decision (al-ḥukm) first gives a summary of the facts and then more detailed legal reasoning that leads to the decision in question. All members of the board normally either give their own reasoning or simply say “I agree with my colleague x” or sign without stating anything. The main part, that is, the first section of the decision stating the facts of the case and giving an in-depth account of the applicable laws and their respective interpretation, is either written by the president of the panel or by one of its members. Publication of Supreme Court Decisions The Supreme Court case law used in this book was published, mainly, in the Majalla al-aḥkām al-qaḍāʾiyya al-Sūdāniyya (Sudan Law Journal and Reports, henceforth sljr). I was able to obtain entire volumes43 of the sljr in printed form from 1999 onwards during my first visit to the technical office of the Sudan judiciary in 2004.44 Then the director of the technical office (al-maktab

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Obtaining printed sljr volumes from 1983 and later is very difficult in Europe; this explains, in part, the scarcity of studies on Sudanese Supreme Court decisions. During my visits to European universities and legal institutions I was only able to make photocopies of the sljr at the Institut Suisse du Droit International Comparé. Their collection, however, is not complete. The African Studies Centre of Leiden University stopped collecting the sljr when the journal began to be published in Arabic only. The Sudanese judiciary shared the same building with the Supreme Court. After my first visit in 2004 a new building was constructed for the Supreme Court, opposite the old one. In 2009, some of the judges still had their offices in the old building.

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al-fannī) kindly provided me with the already mentioned compact disc that proved invaluable for my PhD project. Named “The Sudanese Judgment and Precedents Encyclopedia” and produced by the technical office of the Sudan judiciary, the cd contains all Supreme Court decisions published in the sljr between 1970 and 1999. The cd is further equipped with full-text search capabilities in English and Arabic and all the judgments can be printed. I used this electronic “Precedents Encyclopedia” for cases between 1983 and 1999 and printed copies of the sljr for cases from 2000 onwards. The sljr, published by the Sudanese judiciary (al-haiʾa al-qaḍāʾiyya), began legal reporting after independence in 1956 and has continued its publication irrespective of the ruling regimes.45 Its volumes contain landmark decisions of the Supreme Court and, at times, the court of appeal (maḥkama al-istiʾnāf ) in the fields of criminal law (qaḍāyā l-jināʾiyya), family law (qaḍāyā l-aḥwāl alshakhṣiyya), and civil law (qaḍāyā l-maddaniyya).46 Most of the decisions are taken by the Supreme Court in Khartoum, though some concern decisions by branch offices of the Supreme Court in other federal states. Mallat contends that the rule of law in the Middle East is severely hampered by the difficulty of finding judicial decisions either because law reporting does not exist, it is difficult to access, its publication is secret or simply takes place too late to prove useful.47 At least in Khartoum the sljr can be obtained rather easily. Its publication is quite regular, with only a few months between the end of a calendar year and the publication of the respective sljr volume.48 Interviews49 In addition to the two written sources, I conducted interviews with judges, experts, and Sudanese politicians during two trips to Khartoum in May/June 2004 and May 2009. Thanks especially to Dr. ʿAwaḍ al-Karsanī and Dr. ʿAlī Sulaimān, at the time professors at the University of Khartoum, who kindly put me in contact with a number of interview partners, I was able to interview

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During the Condominium, two digests with court of appeal decisions were published in 1926 and in 1955 respectively. See Lutfi, “The Future of the English Law,” 247. It further contains studies on juridical issues (buḥūth). Mallat mentions that, in the 1990s, the publication of the Egyptian Court of Cassation ran six years behind schedule. Mallat, Introduction to Middle Eastern Law, 214–215. In addition, the Sudan judiciary has made its decisions available on the Internet. In order to protect my contacts, especially the Supreme Court judges who kindly agreed to answer my questions, I have not included a full list of my interviewees in this book. In total, I conducted twenty-four interviews, ten during my first field trip to the Sudan in June 2004 and fourteen during my second field trip in May 2009.

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important representatives of the Sudanese political and juridical establishment. ʿAbdallāh Badrī, a seasoned member of the Sudanese parliament and an activist of the Islamist movement (who regrettably died about a month before my second trip), proved to be an invaluable introduction to the Sudanese elite. Without ever questioning my research project, he used his seemingly limitless contacts to support my endeavors, for example, he helped me meet former prime minister Ṣādiq al-Mahdī and the late Jalāl Luṭfī, who, at the time of my first visit, was President of the Sudanese Constitutional Court (al-maḥkama aldustūriyya).50 In my second trip, I concentrated mostly on interviews with judges of the Supreme Court. Many judges dealing with criminal cases were willing to talk to me. I conducted interviews in English or Arabic. Since I was probably the first western researcher who had come (at least for many years) to inquire about criminal legislation as applied in the Supreme Court, their openness and willingness to talk was not self-evident. Some were more reluctant than others, but most opened up after several visits to the Supreme Court.51 During my first 50

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Jalāl Luṭfī occupied numerous important positions in the Sudanese judicial system. He was a member of the Supreme Court, minister of justice and attorney general (1965– 1967), chief justice (1989–1994), and also the first president of the constitutional court (in 1998). When I interviewed him in June 2004 he was still its president. In the interview, he maintained his 1967 position, saying that “the British system was the best system” and criticized the changes to the legal system after 1956; he stated that these “were not for the betterment of the law.” He also stated that the “quality of the Supreme Court was very low” and that “the Supreme Court makes many serious mistakes.” Luṭfī was equally critical of the Criminal Act of 1991 because it conflicts with the international human rights conventions the Sudan has signed. He stated that the Sunnī schools of law, the madhāhib, were obsolete and not applicable today, rather “precedents are the best source of law.” In summary, Luṭfī was by far my most outspoken and critical interview partner. How he reconciled this position with his role as president of the constitutional court of the Sudan is unclear. By serving the Islamist regime he had clearly switched camps. During Luṭfī’s presidency a digest of constitutional court rulings was published. While beyond the scope of this work, it would be an interesting topic for future research, particularly an investigation of the relationship between Supreme Court rulings and their constitutionality. See Sudan, Republic of (Jumhūriyya al-Sūdān), The Constitutional Court: Journal of the Constitutional Court 1999–2003a.d. (al-Maḥkama al-dustūriyya: majalla al-maḥkama al-dustūriyya fī-l-fatra mā bayna 1999m–2003m) (Khartoum, 2004). One of the judges kindly wrote a “laissez-passer” stating my status as a PhD student and asking the reception to let me enter the Supreme Court building. Despite this, entering the new building proved to be more difficult than entering the old one, as guards were wary of westerners.

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visit to Khartoum in 2004 the offices of the Supreme Court judges were still in the old colonial building of the Sudan judiciary. When I returned in 2009, most had moved to a new high-rise edifice across the street. Yet in spite of the change in building, the judges’ offices still lacked modern it tools: none of the judges I visited had a computer or even an electric typewriter. They were not connected to the Internet, and were thus unable to exchange documents via email. Communication is organized with an exchange of traditional cardboard files containing judgments, comments, notes, and other documents. Next to the generally Spartan office equipment some judges had small collections of reference books stacked on bookshelves. Judging by title and language, I noticed that some obviously preferred English reference books, particularly the landmark studies on homicide and the law of evidence by Krishna Vasdev. One judge even had a reference book on the Indian penal code. Others clearly preferred Arabic language reference books, such as the standard synopsis on Islamic criminal law by ʿAbd al-Qādir ʿAwda. With one exception, I did not see any major works by classical Muslim fuqahāʾ in the judges’ offices. Not everyone in the Supreme Court was as accessible as the judges. Due to time constraints, maybe a lack of convincing wasṭa52 and possibly the inconvenience of talking to a western researcher, I was not able to interview all those I would have liked to. It was particularly unfortunate that I was unable to interview the chief justice Jalāl al-Dīn Muḥammad ʿUthmān; he was as unreachable as his deputy Muḥammad Ḥamad Abū Sinn.53 In order to obtain relevant statistical material of the overall volume of the application of the sharīʿa I had several meetings with another deputy of the chief justice, Dr. Wahbī Muḥammad Mukhtār. In my presence, he instructed the head of the statistics department of the Sudan judiciary to provide me with crime statistics for the previous years. This, however, did not happen. The person in charge of crime statistics first demanded a “letter from my institution” and then claimed that his department had no statistics available.54 Surprisingly, the deputy chief justice had no leverage in the statistics department. This incident was, to some extent, symptomatic of my contacts within the Supreme Court in particular and in Khartoum in general. Many were generous and welcoming and tried to help 52 53 54

Mediation, or intercession. During each visit to the Supreme Court I attempted to reach them, but came to believe they simply did not wish to speak to a western researcher. At the end of my interviews, one of the judges kindly gave me the Statistical Annual Report of the Sudan Judiciary for the year 2008. However, the crime statistics of this report are either partially deficient or not credible. I therefore refrained from using them except in a few instances.

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wherever they could—this is true for the majority of my contacts. There were others, a minority, who obstructed my efforts or refused to offer any meaningful information. My time constraints were such that inquiring further into the political background of my interview partners was not possible. However, the various degrees of openness toward my research project at times seemed to be quite clearly related to their political positions. One case in point was Fatḥī Khalīl Muḥammad, who, as president of the Sudan Bar Association (naqīb almuḥamīn al-Sūdānīīn), is a representative of the al-Bashīr regime and a staunch advocate of the application of the sharīʿa, at least on a rhetorical level. He was clearly not interested in supporting my research.55 My second visit coincided with a session of the Sudanese National Assembly, which made it impossible to meet high-ranking representatives of the ruling National Congress Party. I interviewed two important representatives of the oppositional Popular Congress Party, in particular its then Secretary General, Dr. Ḥasan al-Turābī, and its Foreign Relations Secretary, Dr. Bashīr Ādam Raḥma. In my trips to the Sudan it proved equally impossible to meet with one of the authors of the Penal Code of 1983, Badriyya Sulaimān, who at the time of my visit was heading the Legislative Council of the National Assembly. I had also planned to interview the former judge al-Mukāshifī l-Kabbāshī, known for his book describing and justifying his experience as a judge in Numayrī’s emergency courts. However, time constraints did not allow me to locate him.56 My contacts, mentioned above, also tried to arrange a meeting with former president Jaʿfar Numayrī, but given his fatal illness, a meeting proved impossible. He died shortly after my return to Europe. What is the value of the interviews I conducted? It goes without saying that interviews must be understood in context. This is especially true of statements by politicians, which are potentially characterized by a self-serving and apologetic bias. For the politicians I interviewed, especially Dr. al-Turābī and Ṣādiq al-Mahdī, this is certainly true. Both shared with me their necessarily subjective view of “what happened” and their contribution to it. When I asked Dr. al-Turābī about his role in drafting the Criminal Bill of 1988, which was later adopted, with minor changes, as the Criminal Act of 1991, he denied having had a decisive influence on it57 even though he had been minister of justice and attorney general58 at the time and the criminal bill was a project of his 55 56 57 58

In my interview with him, he refrained from providing any meaningful information; his promise to help me acquire crime statistics did not come to fruition. Presumably he was in Saudi Arabia at the time of my second trip to the Sudan. Interview with Ḥasan al-Turābī, 13 May 2009. Al-Turābī was minister of justice and attorney general between May 1988 and February

introduction

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ministry.59 Ṣādiq al-Mahdī likewise denied that he had had the political leverage to abolish the sharīʿa when he was prime minister.60 With regard to my interviews with jurists, the situation was different. My questions concentrated mainly on issues pertaining to legislation and jurisdiction. Here it seemed that the reliability of their answers increased when the questions concerned the Supreme Court and their work in it. In contrast, when the question referred directly to juridical problems outside their direct professional sphere they seemed to suffer from the same lack of reliable information as I did. In general, I have no means of verifying the truthfulness of their answers. Wherever I quote judges I indicate this in a footnote. However, I only quote a judge’s statement if it seemed plausible to me or if the statement sheds light on their self-perception. At this point it is necessary to mention the independence of the judiciary (or lack thereof). Mallat, in his “Introduction to Middle Eastern Law,” says that governments do not like judges to be independent and are happy to undermine this independence whenever it suits them. Sensitive top positions are normally handpicked by presidents or kings, and personal interference by rulers or politicians who seek to influence decisions is frequent. In addition, numerous institutions with conflicting powers are often used to reduce the power of courts and to undermine their effectiveness.61 Mallat’s general observations are valid for the Sudan as well. In the past, political interference has been substantial. In the 1990s, massive purges crushed all opposition against the Islamist project in the judiciary and elsewhere. The chief justice and all Supreme Court judges are appointed by the president of the Sudan. It is therefore not surprising that my interview partners were, at least in the beginning, hesitant to talk to me, as a western researcher and, when they had overcome their inhibitions, did not make any critical statements about the sharīʿa-based criminal law they administer on a daily basis. In order to complement the interviews, I also take into account the commentaries of Sudanese jurists and Supreme Court judges who have interpreted

59

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1989. See Ann Mosely Lesch, The Sudan: Contested National Identities (Bloomington and Indianapolis: Indiana University Press, 1998), 223–224. The committee that drafted the text of the Criminal Bill of 1988 consisted of jurists representing the three coalition parties at the time: the Umma, the Democratic Unionist Party, and the National Islamic Front. Given the resistance the project met in the Democratic Unionist Party and the Umma parties afterwards, we must assume that the project represented the political will of the National Islamic Front only. Interview with Ṣādiq al-Mahdī, 9 June 2004. Mallat, Introduction to Middle Eastern Law, 214.

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the Sudanese criminal legislation after the 1989 coup d’ état. Most of them take the fiqh and its deliberations as a natural point of reference, an approach that in their view does not require further justification. Reading and analyzing voices from the Sudanese legal profession helps us to understand how those who administer or teach the law contextualize and make sense of the juridical problems they are faced with when exercising their profession. It is hardly surprising that those who are willing to publish and enter into dialogue with their colleagues and the Sudanese public at large are not those who oppose the Islamization of the law, but those who have accepted to work within the Islamized legal system as devised by the al-Bashīr regime. Books written in Arabic by Sudanese authors who are critical of the present practice of Islamic criminal law in the Sudan can be found, however, these titles are scarce, they are normally published in London, Cairo, or elsewhere in the Arab world, and their authors are not legal practitioners working in the official legal system.

Structure In chapter 1 I introduce the present work to the reader by giving a short overview of the background of the introduction of Islamic criminal law and highlighting some important questions relevant to the discourse on legal Islamization and the codification of Islamic law. I further explain the research questions of this work and the methodology I have used when answering these questions. I highlight some important titles in European languages and in Arabic on Islamic criminal law in the Sudan, and I critically reflect on the sources used in his study. I pay special attention to the Supreme Court as the main institution regulating the application of the sharīʿa. In chapter 2, I try to capture the essence of each era as it concerns the application of Islamic criminal law or versions thereof. This account, however, is obviously not meant to be an exhaustive history of Islamic criminal law in the Sudan. It is rather meant to explain the historical, legal, and political environments preceding, accompanying, and following the Islamization of the Sudanese criminal law in 1983.62 In chapter 3, I explain the objectives of the criminal codes as expounded in the explanatory notes; this is followed by some notes on procedure and the 62

Parts of the historical introduction were published in a previous article, see Olaf Köndgen, “Sharia and National Law in the Sudan,” in Jan Michiel Otto (ed.), Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Leiden: Leiden University Press, 2010).

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sources of modern Sudanese criminal law. In the section on enforcement and procedure, I explain the inner workings and institutions of the Sudanese court system, including the hierarchy of courts, the role and recruitment of judges, and the attorney general. This is followed by a survey on evidence, which is illustrated by a number of Supreme Court cases that highlight controversial issues. In the concluding part of this chapter I deal with general notions of Islamic criminal law as codified in the Sudanese criminal codes and, when necessary, I contrast this with corresponding fiqh regulations. In chapters 4 through 9, I discuss ḥadd crimes as stipulated in the legislation of 1983 and 1991. This includes ḥadd crimes proper, that is, those mentioned in the fiqh (i.e., zinā, shurb al-khamr, ridda, etc.), and also offenses that could be called “quasi-ḥadd crimes.” The latter category includes crimes that are more or less similar to ḥadd crimes and punished as such, but do not fulfil the criteria of ḥadd crimes as defined in the fiqh.63 For each section on ḥadd crimes I introduce an overview of the dominant opinions of the fuqahāʾ of the four Sunnī schools. I follow this with a discussion and analysis of the crime in question, first, in the Penal Code of 1983 and, second, in the Criminal Act of 1991, against the background of the preceding codes of 1924 and 1974 and the Criminal Bill of 1988. Wherever possible I analyze Supreme Court cases published in the Sudan Law Journal and Reports in order to illustrate and explain the application of the respective articles in the Supreme Court. Crimes discussed in this chapter include zinā, qadhf, shurb al-khamr, sariqa ḥaddiyya, ḥirāba, and ridda (the latter only with regard to the Criminal Act of 1991).64 Chapter 10, on homicide and bodily harm, is organized in a similar manner. I first give an overview of the pertinent fiqh-related rules and opinions and then discuss the 1983 and 1991 legislation, the application of which is illustrated by published Supreme Court decisions. Given the quantity of Supreme Court decisions on homicide cases, I have selected the more pertinent cases that illustrate points related to the research questions explained above. Chapter 11, on taʿzīr crimes, highlights in a concise manner the main features of the remaining legislation, though without detail, as the main focus of my research is on ḥadd and qiṣāṣ related crimes. In chapter 12, I address the enforcement of Sudanese Islamic criminal law, beginning with a survey of human rights violations. In the survey, I concentrate on those parts of the Sudanese Islamic criminal law that are in conflict

63 64

Relevant only in the context of the Penal Code of 1983. Apostasy (ridda) was introduced into Sudanese criminal legislation for the first time in 1991. The Criminal Act of 1983 did not explicitly mention it.

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with human rights treaties that the Sudan is party to. In a second part on enforcement I analyze the extent of the application of harsh sharīʿa-based punishments from 1983 until today. In chapter 13 (the conclusion), I focus on important developments in legislation, procedure, and Supreme Court decisions, and offer some thoughts on historical and political factors that have proven important to the Sudanese Islamic criminal law experience to date. One last remark as to structure, and for those with limited time: the most important findings of each chapter are summarized at the end of the chapter and are indicated by three dots.

chapter 2

A Short History of Islamic Law in the Sudan The introduction of Islamic criminal law in 1983 and again in 1991 has often been described by its proponents as the correction of a historical wrong. According to this view, Islamic law had been the genuine law of the land and an authentic expression of the Islamic character of the Sudan, but with the advent of colonial rule, it was abandoned. This loss of Islamic authenticity was then restored with the “reinstatement” of Islamic law under Numayrī.1 The veracity of this argument, which is an important one, deserves closer investigation and verification. The following sections of this chapter describe which criminal law was applied in the Sudan in the period prior to independence.

Law in the Fūnj Sultanate (1504–1821) and in Dār Fūr (1640–1916) The Fūnj Sultanate in Sinnār dominated northern Sudan between 1504, after the collapse of the Christian kingdoms of Soba and Dongola, and 1820–1821, the year Muḥammad ʿAlī’s troops conquered the Sudan. Early jurisdiction under the Fūnj—who had adopted Islam under their first king ʿAmara Dunqas (1504– 1534)—was marked by a limited knowledge of the sharīʿa and the predominance of customary law. The institution of judges (qāḍīs) was known, but rare in the early phase of the kingdom of Sinnār.2 Within Fūnj jurisdiction, all those the king deemed to be guilty were executed, irrespective of the severity of their crime.3 Only the king himself could impose the death penalty. Those found guilty of intentional homicide were often handed over to the heirs of the victim for execution.4 At the end of the sixteenth and the beginning of the seventeenth century, Shaykh ʿAjīb the Great of Qarrī5 often nominated qāḍīs from

1 Thus, Layish and Warburg called their seminal study on Numayrī’s version of Islamic criminal law The Reinstatement of Islamic Law in Sudan under Numayri. 2 Jay Spaulding, “The Evolution of Islamic Judiciary in Sinnār,” International Journal of African Historical Studies 10 (1977), 411–412. 3 Ibid., 411. 4 Jay Spaulding, The Heroic Age of Sinnar (East Lansing: Michigan State University Press, 1985), 6. 5 Provincial capital in the north of Sinnār.

© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_003

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among the fuqarā.6 After his downfall it took almost a century before leading fuqarā again took on the role of qāḍīs in Qarrī.7 During the seventeenth century, Sinnār saw an important economic revival and the ensuing presence of a large number of foreign merchants called for the creation of orthodox Islamic institutions. Flogging and execution proved to be an unsuitable means to settle conflicts between traders. While there were muftīs for the four Sunnī schools, the Mālikī madhhab predominated in Sinnār,8 it was taught and propagated by scholars from the Hijaz and Egypt and West African pilgrims alongside a minority of Shāfiʿīs.9 Between 1675 and 1725 Sinnār experienced a phase of transition during which new cities grew and a new, local, merchant class came into being. Just like their predecessors, the foreign traders, this new merchant class had a practical need for Islamic legal institutions. This led to the appointment of qāḍīs for the new urban centers in northern Sinnār.10 In 1718 after the downfall of the Ūnsāb (the leading house of the Fūnj) and the de facto rule of the Hamaj (from 1762) the role of Islam as a source of legitimacy became more important. A new pyramidal institution, the “National Qadirate”11 came into being. In this new system, a chief qāḍī was appointed by the sultan, to whom he was responsible. The chief qāḍī chose the judges (qūḍāt) of the lower echelons and had the power to revise and annul their decisions and impose different verdicts. An appeal to the king’s justice was discouraged by the threat of execution of the defeated party. Intentional homicide and other capital crimes continued to be judged by the king himself.12 In cases of intentional homicide, the qāḍī would ask the heir of the victim whether he wished for “blood or money.” If the heir accepted financial compensation, he and the killer would agree on the amount to be paid. Part of the money was paid directly to the qāḍī. If the heir insisted on the execution of the killer the case would be handed over to the king’s justice and the killer was executed immediately. Another important feature of the the National Qadirate was the replacement of corporal punishments by fines.

6

7 8 9 10 11 12

The double meaning of faqīh and faqīr (sing. faqi/fuqarā) in Sudanese Arabic expresses the range of their functions, oscillating between mystic and legal scholar. On this double role, see Spencer J. Trimingham, Islam in the Sudan (London: Frank Cass, 1965), 140. Spaulding, “The Evolution of Islamic Judiciary,” 413. C. Fluehr-Lobban, Islamic Law and Society in the Sudan (London: Frank Cass, 1987), 23–26. Sean O’Fahey and Jay Spaulding, Kingdoms in the Sudan (London: Methuen Young Books, 1974), 73. Spaulding, “The Evolution of Islamic Judiciary,” 413. Ibid., 415ff. Ibid., 418.

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These fines were paid for theft (if the stolen good could be retrieved), libel, physical assault, adultery, and homicide (if the heirs accepted blood money). Brocchi13 relates that collective liability was common. If an accused person escaped, his relatives were shackled and incarcerated until the accused turned himself in. During the last years of Sinnār, the relationship between the king’s jurisdiction and Islamic jurisdiction changed. This is documented by two legal proceedings which took place between 1800 and 1811. In these lawsuits, the decision was pronounced once by the provincial king and then by the qāḍī. The first pronouncement was confirmed by notables, the second by the ʿulamāʾ. Thus, the prevailing party obtained a verdict based upon the sharīʿa as well as customary law. In the years before the fall of Sinnār (1800–1820) the king’s jurisdiction was probably limited to the capital and its surroundings.14 It continued to compete with the qāḍīs. The king, however, had replaced the system of obligatory execution with punishments similar to those imposed by the qāḍīs.15 The chief qāḍī was unhappy with the limits the king imposed on his authority. Brocchi relates that he was eager to take over the king’s last prerogative, that is, jurisdiction over capital crimes. As in Sinnār, in Dār Fūr, the second important sultanate, Islamic law coexisted alongside customary law; the former gained importance in the higher echelons of Fūr society. The king or a maqdūm16 dispensed justice normally after consulting with a group of fuqarā. In contrast, in village communities, crimes were resolved internally. The most severe sanction was expulsion from the village. Outside the village community, shartays, dimlijs,17 and local landlords administered justice and earned therewith an important part of their livelihood. Fines, which played an important role in customary law in the Fūr, were paid for homicide, theft, adultery, assault, and libel; the fines were divided among those administering the law. Judicial proceedings that were meant to

13 14 15 16

17

Giovanni Battista Brocchi (1772–1826), Italian botanist, geologist, and traveler of the orient. Spaulding, “The Evolution of Islamic Judiciary,” 424. Ibid. The title maqdūm was used as of 1800 in Dār Fūr for representatives of the king who governed a specific region or had the mandate to wage war. Compare Sean O’Fahey, State and Society in Dar Fur (London: Hurst, 1980), 87ff. The four provinces of Dār Fūr were divided into approximately 12 districts (shartaya) and subdivided into smaller local administrative units (dimlijīya), consisting of 2 to 3 villages each. On the administration of Dār Fūr, see O’Fahey, State and Society, 69ff.

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restore peace between villages after violent clashes or homicides were considered an affair of the state. In such cases the shartay imposed a financial compensation on the community of the offender, this was called either “big blood” (dam kabīr) or “small blood” (dam ṣaghīr). Those who were guilty of intentional homicide, however, were often sent to al-Fāshir, where they were beaten to death or hanged. At the top of the judicial system in Dār Fūr was the sultan, who was surrounded by a group of advisers, most of whom were fuqarā, or secondarily, notables. Rulings of the sultan were, according to the cases we know, taken in agreement with the ʿulamāʾ. Until ʿAlī Dīnār (1898–1916) restored the sultanate of Dār Fūr, some fuqarā families had provided qāḍīs for several generations, serving the sultan and his governors.18 However, despite the existence of the fuqarā and the qāḍīs who were recruited from the midst of their ranks, penal law seems to have been entirely a domain of customary law, “… there is no evidence that the shari’a punishments were ever imposed.”19 The fuqarā confined themselves to advising the shartay in his decisions regarding criminal cases according to customary law.

The Centralization of Justice under Ottoman-Egyptian Rule (1820–1881) It was under Ottoman-Egyptian rule (1820–1881) that, for the first time in their history, the North and the South of the Sudan were gradually united. Sinnār and Dār Fūr, which were distinct political entities, were united administratively and politically and ruled by the central government in Khartoum. In harmony with this new administrative centralism, a centralized judiciary was created for the first time with a hierarchical system of local courts (majlis maḥallī)20 of first instance for each district and a provincial council and a muftī for each province. While the provincial qāḍī presided over the province council, his decisions had to be confirmed by the muftī of the province. These provincial councils functioned as courts of original jurisdiction and as appellate courts. At the

18 19 20

Ibid., 112. Sean O’Fahey and M.I. Abu Salim, Land in Dar Fur (Cambridge: Cambridge University Press, 1983), 9. Richard Hill, Egypt in the Sudan 1820–1881 (London, New York, Toronto: Oxford University Press, 1959), 43.

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highest level, there was an appeals court in Khartoum (majlis ʿumūm al-Sūdān). Any decision of the appeals court had to be endorsed by the highest muftī and the governor-general; these decisions were sent to the highest judicial body, the majlis al-aḥkām in Cairo, for final approval.21 Ottoman-Egyptian dominance and the introduction of a unified court system also meant the introduction of Ḥanafī law.22 It remains, to a certain degree, unclear which laws were actually applied by the Egyptian administration, as relevant archives were later destroyed by the Mahdī’s army.23 According to Mustafa, in some instances sharīʿa was applied, in other cases Egyptian military and civil codes appear to have been implemented.24 In more remote areas, justice was administered according to customary law.25 As of 1858, a new Ottoman penal code was introduced, as part of the tanẓīmāt reforms, and implemented through a newly created system of secular courts (niẓāmiyye).26 We are not certain whether or not this code was also applied in the Sudan. Bleuchot concludes that there is no evidence that Ottoman criminal legislation was applied in the Sudan nor do we know of the existence of special codes applied in the Sudan only.27 Theoretically, the Egyptian codes would be applied, as the Sudan was part of Egypt. However, according to Bleuchot, these Egyptian codes were, most probably, dead letter in the Sudan.28 He also points out that none of the contemporary travelers (i.e., western eyewitnesses) report amputations. In contrast, excessive flogging seems to have been the order of the day. It seems clear that for the majority of the population justice was dispensed, for the most part, according to customary law. If a crime was committed within a tribe, the case was handled

21

22 23 24

25 26 27 28

Zaki Mustafa, The Common Law in the Sudan: An Account of the ‘Justice, Equity and Good Conscience’ Provision (Oxford: Oxford University Press, 1971), 37–38 and Hill, Egypt in the Sudan, 43. The Mālikī madhhab was the traditional school in the Sudan until the introduction of the Ḥanafī school. As to the paucity of studies of this era, see Bleuchot, Les Cultures, 161–185 and Köndgen, Das Islamisierte, 15. Hill relates that at the beginning of Egyptian rule the law was mainly applied to government personnel. In the correspondance dealing with criminal investigations and trials the Sudanese are hardly mentioned. Hill, Egypt in the Sudan, 43–44. Mustafa, The Common Law, 37. James Norman D. Anderson, “The Modernisation of Islamic Law in the Sudan,” Sudan Law Journal and Reports (1960), 293. Bleuchot, Les Cultures, 173–175. Ibid., 173.

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by the traditional tribal institutions and settled with the payment of financial compensation. However, if offender and victim belonged to different tribes and inter-tribal peace was jeopardized, the public authorities intervened.29

Sharīʿa of Its Own Kind: Islamic Jurisdiction under the Mahdī (1881–1898) Ottoman-Egyptian rule ended when the Mahdī’s army conquered Khartoum in 1885. In 1881 Muḥammad Aḥmad al-Mahdī (1843–1885), a religious reformer, embarked on a jihād to liberate the Sudan from its ‘infidel’ oppressors, that is, the Turks. After the conquest, all the verdicts of the judges who ruled on cases under Ottoman-Egyptian rule, which was equated with the jāhiliya, were declared void. Using the early community of Muslims as a model, he aspired to restore the religious purity of the Prophet Muḥammad’s time. The only sources of the Mahdī’s legislation were his often-idiosyncratic interpretations of the Qurʾān and Sunna. His large number of legal circulars (manshūrāt qawāʿid alaḥkām) frequently conflicted with the traditional Sunnī schools of law. For example, he stipulated that women be punished with 100 lashes for entering public streets or market places.30 The Mahdī deemed smoking a more severe crime than drinking alcohol and punished the former with 100 lashes, and the latter with 80 lashes.31 Those who refused to perform the prayers were to be punished by 80 lashes, a week in prison, and confiscation of their property.32 Curses and insults were to be punished with 80 lashes.33 Dancing, smoking hashish, and playing musical instruments were outlawed. For severe crimes, such as intentional homicide, blasphemy, and adultery, capital punishment was prescribed, and executed either by hanging or by a firing squad. Thieves were punished with the amputation of the right hand.34 The payment of finan-

29 30 31

32 33 34

Ibid., 174–175. P.M. Holt, The Mahdist State in the Sudan 1881–1898 (Oxford: Clarendon Press, 1958), 114. Ibid., 115. Mustafa, The Common Law (39), writes that smoking was punishable by 27 lashes. In contrast, Bleuchot relates that drinking alcohol and smoking were equally punished by 80 lashes. According to him, 27 lashes was the prescribed punishment for the buyer of tobacco (and thus not the smoker). Bleuchot, Les Cultures, 192. According to Bleuchot, the prescribed punishment for the refusal to perform the ritual prayers was execution and the confiscation of his property. Ibid. Mustafa, The Common Law, 39. Safia Safwat, “Islamic Laws in the Sudan,” in Aziz Al-Azmeh (ed.), Islamic Law, Social and Historical Contexts (London and New York: Routledge, 1988), 236.

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cial compensation in cases of (unintentional) homicide was abolished and qiṣāṣ became compulsory.35 The highest jurisdiction was held by the Mahdī himself, who delegated his prerogative to hear and decide cases to the qāḍī l-Islām36 and to provincial, district, and military judges. The khulafāʾ37 (the military governors) and the ashrāf 38 also administered justice. The qāḍī l-Islām, being the highest judge in the country, had to ensure that all judgments were based solely on the Qurʾān, the Sunna, and the judicial circulars of the Mahdī. The degree to which the authority of ʿulamāʾ had decreased is illustrated by the following incident: after the governor of Dār Fūr sent some judgments to the Mahdī for confirmation, the qāḍī l-Islām admonished him for following the advice of the ʿulamāʾ in his judicial reasoning. He reminded him that the Mahdī’s decrees had rendered the fiqh obsolete.39 After the death of the Mahdī, under the rule of his successor ʿAbdallāhi (r. 1885–1898), jurisdiction theoretically still followed the Qurʾān and Sunna, and the fiqh, as under the Mahdī, was to be disregarded. In actual practice, however, the dual loyalty to ʿAbdallāhi on the one hand and the fiqh on the other caused tensions and resulted, for example, in the deposition of the qāḍī l-Islām Ḥusayn Ibrāhīm w. al-Zahrā, who had been in office only a short time.40 The court structure was modified. Alongside courts dealing with market disputes or claims against the treasury (bayt al-māl) a special court (maḥkama radd al-maẓālim) was created to address claims against the corruption and arbitrariness of the ruling elite, namely governors, army commanders, and princes. Judges in the provinces dispensed justice in cooperation with one or two notables, whom they selected. Their decisions had to be submitted to the highest judicial council in Omdurman. Judgments of the members of this council were signed and sealed by the qāḍī l-Islām, and only cases of intentional homicide were dealt with by the qāḍī l-Islām. The more severe cases had to be confirmed by Khalīfa ʿAbdallāhi himself.41 35 36 37 38 39 40

41

Hervé Bleuchot, “Signification de la réforme mahdiste du droit islamique,” Colloque du 8–12 avril 1991 (Durham University, United Kingdom, 1991), 4. For ten years, this office was held by Aḥmad Wad ʿAlī who had been judge during the Turkiyya. Bleuchot, Les Cultures, 188. The three highest representatives of the Mahdīyya. Holt, The Mahdist State, 158ff. Relatives of the Mahdī. Holt, The Mahdist State, 96. Ibid., 116. Ibid., 243. The first qāḍī l-Islām was in office about ten years; his successor was deposed after just approximately one year. No new qāḍī l-Islām was appointed after that. The successor was called qāḍī l-ʿumūmī. See Bleuchot, Les Cultures, 189. Ibid., 188–189.

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The Condominium and the Introduction of British-Indian Law (1898–1956) Between 1896 and 1899 a joint Anglo-Egyptian army conquered the Sudan and the Anglo-Egyptian Condominium was established; this made the Sudan, in effect, another British dependency. The judicial structures of the Mahdiyya, which were centered largely around the Mahdī himself, collapsed. This meant that the “Anglo-Egyptian colonial administration had to start from scratch”42 since, or so the British thought, local personnel did not have suitable experience to run the new administration.43 When planning for the new legislation the new rulers could not ignore the reality that the Sudanese were deeply religious and that the preceding state had been a theocracy. Thus, when Lord Cromer, the British consul general, explained British policy to religious notables in 1898, he promised to respect and not to interfere with the Islamic religion. When questioned, he asserted that this respect and non-interference implied the application of Islamic law.44 This promise, however, had its limits, as became apparent later. Sharīʿa and Penal Law after the British-Egyptian Conquest Shortly thereafter, the colonial administration fulfilled its promises, at least partially. The Mohammedan Law Courts Ordinance of 1902 and the Muhammadan Law Courts Organization and Procedure Regulation of 1915 provided the basis for the creation and procedures of the Mohammedan Law Courts. These courts administered the sharīʿa in personal status cases and in litigation regarding endowments (awqāf ). They were staffed, for the most part, by Egyptian and some Sudanese religious notables. The post of grand qāḍī was always held by an Egyptian until 1947, when a Sudanese was appointed for the first time.45 In principle, litigants could appeal to the Mohammedan Law Courts in other domains of the law, including penal law, provided they confirmed that they would submit to Islamic law.46 This option can be traced back to Lord Cromer’s promise to

42 43 44 45

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Salman M.A. Salman, “Lay Tribunals in the Sudan: An Historical and Socio-Legal Analysis,” Journal of Legal Pluralism 21 (1983), 66. Mustafa, The Common Law, 42. Salman, “Lay Tribunals,” 66. Besah Abdul Hamid and Hassan Ahmed Ibrahim, “Controversy Surrounding the Grand Qadi of the Sudan 1899–1956: A Historical Analysis,” Intellectual Discourse 14, no. 1 (2006), 2. E. Guttman, “Reception of Common Law in the Sudan,” International and Comparative Law Quarterly 6 (1957), 407.

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allow for Islamic jurisdiction whenever a Sudanese claimant expressly wished for its application. However, this regulation remained theoretical and was never applied in practice. Sudanese Muslims appealed to the Mohammedan Law Courts in cases concerning family law and religious endowments (awqāf ) only.47 Decisions of the Mohammedan Law Courts were based on Ḥanafī fiqh, which had been introduced under Ottoman-Egyptian rule (1820–1881).48 The Mohammedan Law Courts Ordinance provided for the grand qāḍīs to issue legal circulars (manshūrāt) that functioned as provisions and regulated the interpretation of the sharīʿa. These were published regularly, and in effect constituted a precursor to codification, an innovation “the Egyptian ‘ulamā appear not to have opposed.”49 Lord Cromer held the opinion that a simple version of civil and penal law was sufficient for the Sudan. The new civil servants were to be chosen carefully and endowed with far-reaching powers in order to enable them to administer justice according to the specific characteristics of the country. The British did not consider applying Egyptian or Islamic law in civil or criminal matters; they had no interest in allowing their Egyptian partners a dominant position in legal matters other than those related to family law and awqāf. Within the framework of the Condominium, the Egyptians were generally given a limited role and only filled the lower ranks in the colonial administration. The first penal code and a criminal procedure act were promulgated in 1899. The former was based on Anglo-Indian colonial legislation, the latter on Egyptian military law, which, in turn, had its origins in British military law. Both were adapted to Sudanese conditions; the penal code had already been applied in the East African protectorates and Zanzibar. The penal code was revised in 1924. With regard to punishments, provincial administrators and governors were allowed great leeway in the interpretation of the new penal code. The same crime could be punished differently, depending on whether the culprit was a nomad, a Southerner, or an Arab. For intentional homicide, for example, the penal code stipulated capital punishment or a life sentence. If the killing took place among nomads, however, these penalties were normally not executed but instead, after a petition to the governor-general, were commuted into a shorter prison term or the payment of blood money (diya).50 Native or 47 48 49 50

Ibid. Ibrahim M. Zein, “Religion, Legality and the State, 1983 Sudanese Penal Code,” PhD dissertation (Temple University, 1989), 175. Shamil Jeppie, “The Making and Unmaking of Colonial Shariah in the Sudan,” 46th Annual Meeting of the African Studies Association (Boston, 30 Oct.–2 Nov. 2003), 2. Gabriel Warburg, The Sudan under Wingate (London: Frank Cass and Company Limited, 1971), 126.

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tribal courts dispensing justice in the South and among Muslim nomads in the North were only recognized twenty years after the conquest.51 Under Reginald Wingate, the Sudan’s second governor-general,52 fear of a revival of Mahdism led to the resolute suppression of anything perceived as heterodoxy. Thus, Sufi orders were not recognized and surviving Mahdist leaders were subdued. Concurrently, the ʿulamāʾ, who had never been very important in the Sudan, were granted pensions and status. In 1912, an institute to train ʿulamāʾ, emulating alAzhar in Cairo, was opened in Omdurman. In addition, mosques were built and repaired and the pilgrimage (ḥajj) to Mecca was promoted in order to pre-empt “fanaticism.”53 Refining the System This strengthening of the ʿulamāʾ, however, did not mean that sharīʿa-based jurisdiction was allowed to gain ground. To the contrary, from 1920 on, native courts were effectively used to supplant the sharīʿa courts, albeit gradually. In order to diminish the status of the sharīʿa courts, native courts were given concurrent, customary law-based jurisdiction on personal status issues. By 1929, a good number of sharīʿa courts were abolished and native courts set up instead. However, even though reduced in number, sharīʿa courts continued to exist throughout the era of the Condominium.54 Throughout the time of the Condominium, the judicial system consisted of three divisions: sharīʿa courts, civil courts (where justice was dispensed according to common law), and socalled native courts (where customary law was administered by tribal leaders).

Discussions on the Islamization of Law (1952–1969) The Path to Independence and Beyond The Sudan’s path to independence began to accelerate with the self-government statute that was passed in April 1952. In January 1954, it was decided that within a period of three years the Sudanese had to decide between independence and union with Egypt. A Sudanization committee was established and British officials started to leave the Sudan. In December 1955, the Sudanese par51 52 53 54

Jeppie, “The Making and Unmaking,” 1–2. Wingate replaced Herbert Kitchener as governor-general of the Anglo-Egyptian Sudan at the end of 1899 and remained in office until the end of 1916. M.W. Daly, “Sudan,” in Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: Brill, 1960–2004), 9:746. Jeppie, “The Making and Unmaking,” 3.

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liament unanimously voted for independence. The Sudan’s first transitional constitution was promulgated in January 1956, one month after the country achieved independence. It guaranteed parliamentary rule, the existence of a multi-party system, and free elections. Though it was intended to be a transitional constitution, later to be replaced by a permanent one, in fact it survived three military takeovers and was revitalized whenever the military had to step down.55 In the years before independence and until the 1970s, three distinct tendencies dominated the discussion about the future constitution and legislation. First, proponents of an Islamic constitution and legislation were represented above all by the Umma Party, the Democratic Unionist Party, the Muslim Brotherhood, and some members of Sufi sects.56 Second, the camp of Nasserites, Ba’athists, and Arab nationalists advocated the Egyptianization of the Sudanese legal system, thus harmonizing it with the majority of socialist Arab states and dispensing with the British colonial heritage. Third, a pragmatist camp endorsed the reform of the existing legal system, but rejected its complete replacement by either Islamic or Egyptian legislation. Most of the secular intelligentsia and graduates of the law faculty of the University of Khartoum belonged to this camp,57 as did the prominent Sudanese jurist Jalāl Luṭfī, who suggested, in an article published in 1967, that English law be retained, and further developed along the standards set in England itself. Luṭfī’s providential article anticipated later developments and warned against making changes for the sake of short-lived political gains: … if the situation is considered objectively, the English law will no doubt continue as the main guidance for our future legal development. But if the trend is to follow opinion and ideas tainted and coloured with sentiment and emotions then any change to a different legal system will serve no purpose other than temporary political gain by those who are advocating it. If this unnecessary change has taken place—and I hope not—the result will definitely be a disastrous one.58

55 56

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Gabriel Warburg, Islam, Sectarianism and Politics in Sudan since the Mahdiyya (London: Hurst & Company, 2003), 144. Peter Nyot Kok, “Conflict over Laws in the Sudan: ‘From Pluralism to Monolithicism,’” in H. Bleuchot, C. Delmet, and D. Hopwood (eds.), Sudan: History, Identity, Ideology / histoire, identite ideologies (Reading: Ithaca Press, 1991), 240. Peter Nyot Kok, “La transition permanente (Analyse des constitutions et du système juridique soudanais de 1956 à 1988),” in Marc Lavergne, Le Soudan Contemporain (Paris: Karthala—cermoc, 1989), 461ff.; Kok, “Conflict,” 237–243. Lutfi, “The Future of the English Law,” 249.

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As early as September 1956 a committee began to draft a ‘permanent’ constitution. Sufi leaders such as Sayyid ʿAbd al-Raḥmān al-Mahdī and Sayyid ʿAlī l-Mīrghanī, joined by the Muslim Brotherhood, advocated an Islamic parliamentary republic with the sharīʿa as the main source of legislation. Khartoum was to be the capital of a centralized system of government with Arabic as the official language and Islam as the religion unifying the nation.59 Non-Muslims were to be granted all rights envisaged by the sharīʿa. Racial or religious discrimination was to be excluded. Within a period of five years the Sudan was to be fully Islamized. Southern objections against Islamization and demands for a federal system were dismissed. In November 1958, when the military took over under General Ibrāhīm ʿAbbūd,60 a national consensus on the permanent constitution had not been reached and the draft constitution had not yet been promulgated. The junta under ʿAbbūd abolished the provisional constitution of 1956, without replacing it with a new one. Kok has pointed out that major developments under ʿAbbūd’s rule laid the foundations that continued to have a major influence for decades to come. Resistance in the South against the dictatorship of ʿAbbūd developed into a full-fledged war for independence. The Muslim Brotherhood, still a young movement—they were only founded in August 1954—expanded their influence, especially among intellectuals and students.61 ʿAbbūd banned all political parties but the Muslim Brotherhood, who, as a religious movement, were allowed to function. Already at this early stage of their existence, the Muslim Brotherhood had decided to usurp power, if necessary by violent means. In November 1959, they plotted through an army cell to overthrow the regime, but were unsuccessful; the discovery of the plot effectively ended the Muslim Brotherhood’s freedom to act.62 Sudan’s Second Democratic Experience After the downfall of ʿAbbūd’s military dictatorship in 1964, the Sudan experienced a second democratic stage. A slightly amended version of the transitional constitution of 1956 was re-enacted. However, solutions for the constitutional impasse as proposed by the concerned parties had not materially

59 60 61 62

Kok, “La transition,” 439. Ibrāhīm ʿAbbūd became commander in chief of the Sudanese military forces after the Sudan’s independence on 1 January 1956. He headed a coup d’ etat on 17 November 1958. Kok, “La transition,” 440. Warburg, “The Muslim Brotherhood in Sudan: From Reforms to Radicalism,” The Project for the Research of Islamist Movements (prism), Global Research in International Affairs (gloria) Center, 2006, online: http://www.e-prism.org/images/Muslim-BROTHERS .PRISM.pdf, 1–2.

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changed. Thus, Southern claims for self-determination and demands for a referendum on their future rapport with the Muslim North continued to fall on deaf ears, even with moderate parties in the North.63 As of December 1967, a constitutional committee debated again about a future ‘permanent constitution’ and in early 1969 presented a draft that defined the Sudan as a ‘democratic socialist republic under the protection of Islam’ (Art. 1). This formulation was meant to placate the left as well as the traditional Islamic right. Falling short of full recognition of the Sudan’s religious plurality, Article 3 stipulated Islam as the state religion. The sharīʿa was meant to be the main source of legislation and all existing laws were to be reviewed in order to bring them into conformity with the sharīʿa.64 The draft also stated that the presidency could be held by Muslims only, thus—in constitutional terms—Southerners would have been second-class citizens.65

Numayrī and the Islamization of the Sudanese Legal System (1969–1985) Numayrī’s Early Law Reforms: An Attempt to Break Free from the Colonial Heritage At the beginning of 1969, the Sudan’s two largest Sufi orders, the Anṣār and Khatmiyya, agreed on a common political program to provide for the creation of a presidential republic with an Islamic constitution. However, Numayrī’s coup d’état in May 1969 averted the ratification of this second constitutional draft. Soon after Numayrī’s takeover, a good part of the legal system came under scrutiny, resulting in the enactment of a succession of new laws. Numayrī, who was a proponent of pan-Arabism, decided to bring the Sudanese legal system in line with many Arab states that had adopted important parts of the Egyptian legal system. He thus followed the demands of the pan-Arabist school, mainly represented by Nasserists, Ba’athists, and Arab nationalists who sought to eliminate the colonial heritage. It did not seem to matter to the pan-Arabist school that the Egyptian legal system was based, in large part, on French law and thus was hardly an authentic Arab system that could claim to have overcome the colonial heritage. In 1970 a Law Reform Commission 63 64 65

Warburg, Islam, 146. Kok, “La transition,” 443–444. See also the revealing dialogue between Ḥasan al-Turābī and Phillip Abbas Gobosh in Abdullahi Ahmad an-Na’im, “The Elusive Islamic Constitution: The Sudanese Experience,” Orient 26 (1985), 329.

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was appointed, which ignored the work of several earlier commissions that had been working on law reform since 1968.66 The new commission composed a Civil Code written in Arabic.67 The code, hastily drafted by a law reform commission consisting of twelve Egyptian jurists and three Sudanese lawyers,68 was, unsurprisingly, mainly inspired by the Egyptian Civil Code of 1949 and, thus, represented a radical shift from common law to continental (French) European law.69 In the description of a Sudanese jurist, … the commission proceeded to copy with impunity, and with trivial and sometimes absolutely meaningless amendments, section after section and chapter after chapter from the Egyptian Civil Code of 1949, flavoring it here and there with a slightly modified or differently phrased version from the Iraqi, Syrian, or Libyan Civil Codes.70 In the same assembly line fashion, a Civil Evidence Code (1971), Civil Procedure Code (1972), and the Penal and Commercial Codes (1972) were expeditiously produced. But Numayrī’s ‘legal revolution’ did not last. In 1974, the new codes were revoked, and once the regime’s preoccupation with Arab unity had subsided and given way to other priorities, common law was restored.71 Kok points out that the trend to Egyptianize the Sudanese legal system never really regained the momentum it had in the early 1970s, despite the high number of law graduates from the Khartoum branch of Cairo University.72 Meanwhile, in February 1972, Numayrī’s government and the Southern Sudan Liberation Movement (sslm) concluded a peace treaty in Addis Ababa to end the rebellion that had started in August 1955 and continued as a largescale insurgency. The peace agreement, which provided for an autonomous regional government in the South, addressed, among other things, develop-

66

67 68 69 70 71 72

These commissions, established under Law Reform Commission Act of 1968, charged each with a specific area of law. The considerable work they had done since 1968 was completely ignored. Civil Law of 1971, Democratic Republic of the Sudan, Ministry of Justice. Kok, “Conflict,” 238. S.H. Amin, Middle East Legal Systems (Glasgow: Royston Publishers, 1985), 334. Zaki Mustafa, “Opting Out of the Common Law: Recent Developments in the Legal System of the Sudan,” Journal of Arab Law (1973–1974), 135. Kok, “Conflict,” 238. In the early 1990s, these outnumbered the common-law trained graduates by 1:8, Kok, “Conflict,” 238. On the 1984 Civil Transactions Act and its connections with Egyptian civil law, see below.

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mental, economic, and human rights questions, and was promulgated as the Southern Provinces Regional Self-Government Act in 1972. In September of the same year, the people’s assembly was convened to hammer out a new constitution. After seven months of deliberations, in May 1973, a ‘permanent’ constitution was promulgated. Several factors contributed to this success, seventeen years after reaching independence. First, the sectarian parties, that is, the Umma Party and the Democratic Unionist Party did not participate, and the Muslim Brotherhood allowed for the official recognition of the Christian and all other Southern religions. Also, important contentious issues, such as the status of the South and the nature of the executive, were resolved beforehand, and the ban on political parties paved the way for the Sudanese Socialist Union to operate as the sole remaining party in a single-party system. Article 9 of the permanent constitution stipulated that Islamic law and customary law were the main sources of legislation. While many non-Muslims and secularists in 1973 understood the two to be on an equal footing, many Southern politicians were opposed to the new constitution because, in their view it gave too much weight to Islamic law and made Arabic the official language of the Sudan.73 Indeed, later, in September 1983, Article 9 was invoked to justify the introduction of the sharīʿa. Islam, however, was not declared the religion of the state. In recognition of Sudan’s plurality, the new constitution guaranteed the principles of decentralization (Art. 6, Art. 7) and self-government in the South on a permanent basis (Art. 8). The permanent constitution also confirmed that all Sudanese were “equal in rights and duties irrespective of origin, race, locality, sex, language or religion.”74 In 1974, the Sudan saw yet another wave of new legislation. With the defeat of pan-Arabism, the pragmatist school had its way and neither the sharīʿa nor Egyptian law played a significant role in the drafting process. Zaki Mustafa, attorney general and author of the seminal study The Common Law in the Sudan75 oversaw the drafting of the new legislation, called ‘a legislative revolution’ by president Numayrī.76 A Sales of Goods Act, a Contract Act, a new Civil Procedure Act, an Agency Act, a Penal Code, and a Criminal Procedure Act were all promulgated in 1974.77 While the Civil Procedure Act simply repealed the Civil Justice Ordinance of 1929, the Contract Act, the Sales Act, and the Agency Act were for the most part codifications of the pertinent concepts of English 73 74 75 76 77

Warburg, Islam, 166. Ibid. See Mustafa, The Common Law. He used the same wording in 1983 to describe the September laws. Köndgen, Das Islamisierte, 22.

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law and Sudanese precedents. The Penal Code of 1974 was an adaptation of the Penal Code of 1924 and, likewise, free of sharīʿa elements. “The Islamic Path”—Numayrī Finds New Allies Meanwhile, Numayrī himself increasingly advocated the ‘Islamic path.’ In his book al-Nahj al-islāmī li-mādhā?78 (The Islamic path, why?) he claimed that his religious reawakening happened in 1971 when he was imprisoned during a coup d’état and faced an uncertain future.79 Indeed, after the failed communist coup in 1971, Numayrī performed a ḥajj to Mecca and seized the occasion to meet Muslim Brotherhood leaders who had escaped to Jedda. This early attempt at reconciliation was, however, subsequently rejected by his advisers.80 He also met with King Faysal of Saudi Arabia to discuss “a new Islamic phase in Sudanese politics.”81 According to some reports Numayrī promised Faysal that a new constitution would make the Sudan an Islamic state. When the 1973 ‘permanent’ constitution fell considerably short of this promise, the Saudis canceled the financial aid they had promised.82 As to the sincerity of Numayrī’s religious convictions, the interpretations of observers vary. Mansour Khalid, who served as foreign minister under him and knew Numayrī well,83 emphasizes his political motives and gives little credit to his religious intentions. He describes Numayrī’s beliefs as “an incongruous mixture of Islam, superstition and belief in witchcraft and magic” and claims that Numayrī was ignorant of (orthodox) Islam.84 Warburg, a more distant observer, stresses the conjunction of Numayrī’s new religiosity and the rise of militant Islam in Iran and other Muslim states, such as Egypt, where the Muslim Brotherhood and Islamic student organizations had gained considerable importance under Sadat.85 The heyday of secular leftist nationalism according to the Nasserist

78 79 80 81 82 83

84 85

Numayrī published two books on his ideas of a truly Islamic Sudan; their titles were alNahj al-islāmī limādhā? (Cairo, 1980) and al-Nahj al-islāmī kayfa? (Cairo, 1985). Gabriel Warburg, “The Sharia in Sudan: Implementation and Repercussions, 1983–1989,” Middle East Journal 44, no. 4 (1990), 626. Ibid., 625. Ibid. Ibid. For a detailed profile of Khalid, see Gamal Nkrumah, “Mansour Khalid: Rewriting Sudan with Verve and Passion: Rebel and Maverick,” Al-Ahram Weekly online, 24–30 April 2003, no. 635. http://weekly.ahram.org.eg. Mansour Khalid, Nimeiri and the Revolution of Dis-May (London: Kegan Paul International, 1985), 260. Warburg, “The Sharia in Sudan,” 626.

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model had passed and Numayrī had, according to Durán, “tried nearly all possible options, so at one time Islamism simply had to have its turn.”86 Clearly, the Sudan’s economic plight and the resulting need for financial aid from the petro-monarchies of the Arabian Peninsula, especially Saudi Arabia, made the reconciliation with the various Islamic movements, especially the Anṣār and the Muslim Brotherhood, and Islamization in general, seem advisable.87 During the 1970s, new Islamic institutions and events were founded, including the ‘African Islamic Center,’ an educational center for African Muslims (1972) and the ‘Festival of the Holy Qur’an’ (1973). The former was an unofficial branch of the Muslim World League, and was tasked with bringing popular African Islam into line with orthodox Islam before proselytizing in nonMuslim Africa.88 After forcing his government and high-ranking civil servants to abstain from alcohol in 1976, Numayrī gave the Islamic path an important role in his 1977 electoral program. The same year saw the establishment of a committee for the revision of Sudanese legislation and the establishment of the Faisal Islamic Bank, the first bank in the Sudan that worked according to Islamic principles.89 In the meantime, domestic opposition to Numayrī did not diminish. After several failed attempts between 1970 and 1975 to overthrow his regime, in 1976 the above-mentioned National Front came very close to toppling Numayrī. This failed coup attempt was followed by a historic compromise with the leading opposition parties. Its leaders, Ṣādiq al-Mahdī and Ḥasan al-Turābī, were coopted into the Sudanese Socialist Union. In turn, the National Front agreed to cease its military resistance. However, the Front proved unable to overcome its internal divisions. Aḥmad ʿAlī l-Mīrghanī, the spiritual leader of the Khatmiyya had rejected an active role in Sudanese politics at the start of the reconciliation and had founded the ‘Islamic Revival Committee’ which demanded, like the Muslim Brotherhood, a comprehensive application of the sharīʿa. In October 1978, Ṣādiq al-Mahdī was criticized by members of the Anṣār for their perceived closeness to Numayrī. He subsequently withdrew from the Sudanese Socialist Union in protest against Numayrī’s support of the Camp David agreement. Many followers of the Anṣār did not agree with the national reconciliation 86 87 88 89

Khalid Durán, “The Centrifugal Forces of Religion in Sudanese Politics,” Orient 4 (1986), 576. Warburg, “The Sharia in Sudan,” 626. Durán, “The Centrifugal Forces,” 576 and Reinhard Schulze, Islamischer Nationalismus im 20. Jahrhundert (Leiden: E.J. Brill, 1990), 381. To secure the success of the Faisal Islamic Bank, its operations were exempted from taxation. Köndgen, Das Islamisierte, 32.

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and remained in camps outside the Sudan, for example, in Libya. The Southern Sudanese were equally wary of the arrangement and argued that the Anṣār and the Muslim Brotherhood were striving for an Islamic state in which Southerners would be second-class citizens.90 Ṣādiq al-Mahdī attempted to sideline the Muslim Brotherhood by trying to prevent them from taking a leading role in the National Front; he thus made it clear to al-Turābī that the Brotherhood would not gain power through elections or by way of a violent takeover. The majority of Muslim Brothers nevertheless concluded that backing the Numayrī regime was their best option. After the purges of the Muslim Brotherhood by the regime in the years from 1973 to 1976, the Muslim Brotherhood was in a weakened state. They believed that the potential loss of credibility in the eyes of the Sudanese public that might arise by cooperating with Numayrī’s dictatorial regime would be outweighed by a stronger organization and the experience their members would gain by working within the government apparatus. A small minority, which was critical of al-Turābī’s modernist views and called for a closer union with the Egyptian Muslim Brotherhood (Ikhwān al-Muslimūn) broke off in 1979 and established their own organization.91 As a possible explanation for al-Turābī’s willingness to cooperate with Numayrī, Esposito has suggested that Numayrī’s frequent demonstrations of religiosity had convinced the former of their congeniality. This assessment, however, seems rather doubtful. Al-Turābī himself seems to have had a rather sober view of this cooperation, as is apparent in an interview in which he stated “As long as President Nimairi keeps his word and allows us to function and to propagate Islam, we are satisfied. It is our advantage to support Nimairi, for whoever replaced him might be less tolerant or less religious.”92 Thus, al-Turābī and the Muslim Brotherhood began to fill government, Sudanese Socialist Union, and other official positions. In August 1977, al-Turābī took over the chairmanship of the committee reviewing Sudanese laws, to assess their compliance with the sharīʿa and a month later he joined another committee to review the constitution.93 He found 38 of 286 laws incompatible with the sharīʿa for a variety of reasons: they did not include the ḥudūd in the penal code, the banking act made charging interest legal, and, interestingly, because the Southern Provinces Self-Government Act of 1972 allowed for the development of cus90 91 92 93

This view was held, for example, by Bona Malwal, Minister of Culture and Information and editor-in-chief of “Sudanow.” A.A.M. Osman, “The Political and Ideological Development of the Muslim Brotherhood in Sudan, 1945–1986.” PhD dissertation (University of Reading, 1989), 255ff. Middle East (September 1979), 71–72. Köndgen, Das Islamisierte, 35–36.

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tomary law.94 The committee drafted laws banning alcohol, the charging of interest, and forbidding gambling, as well as laws on the alms tax (zakāt), ḥadd punishments, and a law on the sources of legislation.95 The draft law on the zakāt was ratified by parliament, but repealed due to difficulties with its application. In 1979, the position of the Muslim Brotherhood improved further when alTurābī was appointed minister of justice and his close confidant Aḥmad ʿAbd al-Raḥmān became minister of higher education.96 Al-Turābī gained further influence by joining the Central Committee of the Sudanese Socialist Union in March 1980. In the same year, the “Islamic Trend Movement,” the Muslim Brotherhood’s student organization controlled (with the exception of Juba in the South) all student councils in Sudanese universities. While the Muslim Brotherhood expanded their influence within the regime and in Sudanese civil society, the political and economic situation deteriorated further in the late 1970s and early 1980s. After an initial phase of nationalizations, which lasted until 1971, Numayrī opened the Sudanese economy to foreign investments following the Egyptian model (infitāḥ). Studies of international organizations described the enormous agricultural potential of the Sudan, which was using only 50 percent of its water reserves and was not using much of its arable land.97 With the help of international economic aid, which was resumed after the break with the Sudan Communist Party, and Arab oil money, they planned for the Sudan to become not only self-supporting agriculturally, but also to supply food to the entire Arab world (the so-called “bread basket strategy”). This, however, proved to be overly optimistic. The strategy failed as a result of mismanagement, misguided planning, an underdeveloped infrastructure, and widespread corruption.98 Concurrently, the Sudanese trade balance worsened rapidly. In order to finance its growing imports the Sudanese borrowed large sums, thereby increasing the national debt (in the period from 1978 to 1983) from 3 to 8 billion us dollars. Subsequently, to service and pay off its mounting debts, the Sudan reduced its subsidies, which led to a 60 percent increase in

94 95

96 97 98

Kok, “Conflict,” 242. Kok claims that these draft laws were promulgated in 1983 with only small modifications. Kok, “La transition,” 463. Other authors, however, deny al-Turābī’s influence on the September laws. Osman, “The Political and Ideological Development,” 255ff. Köndgen, Das Islamisierte, 29. See for example, Khalid, Nimeiri, 243ff. and Khalid, The Government They Deserve: The Role of the Elite in Sudan’s Political Evolution (London and New York: Kegan Paul International, 1990), 314ff.

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the price of wheat. Meanwhile, the Sudanese pound was devaluated twice (in 1978 by 25 percent, and in 1981 by 11.1 percent). The economic situation of the country was further worsened by drought and the influx of some two million refugees from neighboring countries. In 1983 alone, around 640,000 refugees from Ethiopia, Uganda, and Chad entered the Sudan.99 The rampant corruption also eroded Numayrī’s power base in the army. While the army had backed him against the Anṣār’s attempted coup d’état and other attempted takeovers, leading officers were especially critical of Numayrī’s brother-in-law, Bahāʾ al-Dīn Idrīs, nicknamed “Mr. 10 %.” Numayrī, however, was not prone to accept criticism and in August 1982 he dismissed the army’s commander-in-chief, Abdel Magid Hamid Khalīl and transferred twenty-two generals to other locations. Numayrī himself took command of the army and the ministry of defense.100 Regarding his Southern policy, in 1979 Numayrī gradually began to dismantle the 1972 Addis Ababa agreement, which had successfully ended the seventeenyear southern war of independence. The Addis Ababa agreement was regarded by many as the most important achievement of the Numayrī era. For the first time in the Sudan’s post-independence history it recognized the pluralistic nature of Sudanese society, granted the South regional autonomy and “acknowledged that culture, race, religion and economics dictated a new approach to the internal structure of Sudan and to its constitution.”101 As noted above, the Addis Ababa agreement was hammered out without the participation of the sectarian parties and the Muslim Brotherhood. Kok stresses that many Southerners were well aware that the Muslim Brotherhood, the Umma Party, and the Democratic Unionist Party had been and continued to oppose the agreement because it made the South a unified federal state, constituting an important base of support for Numayrī’s (still secular) regime. Their strategic goal of removing Numayrī and Islamizing the state, and the legal system in particular, would only succeed if the self-governance of the South were weakened.102 Therefore, it comes as no surprise that al-Turābī, who was the Sudan’s attorney general during this time, played a leading role in advising and supporting Numayrī in his endeavor to dismantle the Addis

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100 101 102

Muddathir Abd al-Rahim, “Le Soudan indépendant: gouvernements militaires et ‘coups d’états civils’ (1956–1985),” in Marc Lavergne, Le Soudan contemporain (Paris: Karthala— cermoc, 1989), 284. Khalid, Nimeiri, 217ff. Warburg, Islam, 165. Kok, “Conflict,” 241–242.

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Ababa agreement.103 In 1979, Numayrī suggested to the National Congress of the Sudanese Socialist Union that the South be redivided into three, instead of one, autonomous regions, each with its own regional parliament and government. This would have led to a dismantling of the “Southern Provinces Regional Self-Government Act” of 1972.104 The regional governments would have been directly responsible to the president, thus effectively ending Southern Sudanese autonomy. A large majority of Southerners opposed the changes; in March 1981, the Southern Regional Assembly rejected the motion, and in October 1981 Numayrī dissolved the assembly and installed an interim government. A referendum, intended to decide the question of restructuring the South, was cancelled in February 1982. The striking neglect of the Southern economy by Numayrī’s regime was an important factor contributing to the South’s readiness for a renewed military confrontation with the North. Government investment in the South promised under the Addis Ababa agreement had not materialized and hopes for oil revenues had been foiled. A rather modest 225 billion-dollar investment, promised under the six-year plan covering the period from 1977 to 1983, was reduced to a meager 45 billion dollars in real terms.105 Against this background, in early 1983, the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (splm/spla) was founded; unlike its predecessor Anyanya i,106 it did not aim at independence but strove to end the economic marginalization of the South, to end Numayrī’s dictatorial regime, and to preserve a united Sudan that would guarantee Christians and animists the same rights as Muslim citizens in the North. In late spring 1983, events escalated. In May two battalions in Bor (Upper Nile province) mutinied against their relocation to the North and on 5 June 1983 Numayrī decided to restructure the South by way of a presidential decree, despite strong Southern resistance, which continued to grow. Thus, while the Southern rebels were clearly motivated by the threat of Northern political and economic dominance, the introduction of the sharīʿa fueled a widespread fear of cultural domination, and thus added yet another motive. While Numayrī tried to placate Southerners by stating that the rights of nonMuslims would be respected, news of the amputations of several Southerners in Khartoum caused immediate outrage in the South and stimulated the rebellion that had begun earlier.107 103 104 105 106 107

Warburg, Islam, 167. Köndgen, Das Islamisierte, 30. Ibid., 31. Anyanya i fought for Southern independence from 1955 to 1972. Scott H. Jacobs, “The Sudan’s Islamization,” Current History 84, no. 502 (1985), 208.

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On the domestic front, the situation deteriorated further. In May 1983, Numayrī accused judges of corruption and ebriety and in June, after promising to “clean up” the judiciary, he dismissed forty-four judges. Others resigned in protest and were promptly supported by professional groups such as doctors, teachers, and lawyers. Numayrī refused to compromise and, between June and September 1983, the full-scale confrontation led to a complete paralysis of the judicial system.108 Jacobs points out that the Sudanese judiciary was one of the few official bodies not under Numayrī’s direct control. The judiciary indeed took pride in being an independent professional elite that safeguarded the constitution and opposed Numayrī’s arbitrary rule.109 Months before the promulgation of the September laws, the confrontation between Numayrī and the judiciary had escalated. It is clear that the dismissals, the Islamization of the legal system, and the subsequent introduction of alternative courts were Numayrī’s way of subduing a self-reliant professional elite that dared to oppose his high-handed rule. Sharīʿa as a Last Resort: Numayrī Islamizes the Legal System In July 1983, while the confrontation between the regime and the judiciary persisted, Numayrī appointed a three-member committee to Islamize Sudanese legislation. The delicate question of an Islamic constitution, however, was excluded from the agenda. Al-Turābī, whom Numayrī wanted to distance from the process, was ousted as minister of justice shortly before the committee began its deliberations. He was replaced as attorney general as well and appointed first to an advisory post as minister for legal affairs for the president. Less than four months later he became a foreign affairs adviser for the president. The official pretext for shifting al-Turābī to this relatively unimportant post was to use al-Turābī’s language skills110 and western education to convince the international community of the importance of the legal reform.111 Numayrī himself visited Saudi Arabia, Egypt, Kenya, Italy, France, Britain, and the United States, in an attempt to gain support from Saudi Arabia and convince the others that the Sudan’s Islamization would not lead to an Iranian-style radicalization.112 The real reason al-Turābī was moved away from his “legal revolution” was to prevent al-Turābī and the Muslim Brotherhood in general from

108 109 110 111 112

Ibid., 206. Ibid. Apart from his mother tongue Arabic, al-Turābī was fluent in English and French. Zein, “Religion, Legality,” 190. Ibid., 192.

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claiming any credit for the regime’s Islamic legal revolution.113 Ironically, since the Muslim Brotherhood were still part of the government, Numayrī’s attempt to disassociate them from the new Islamized codes was not entirely successful. There was a general impression that al-Turābī and the Muslim Brotherhood were still pulling the strings behind the scene.114 The committee charged with the Islamization of Sudanese laws worked in secret and the only person informed about the ongoing work, apart from the president himself, was al-Rashīd al-Ṭāhir Bakr, al-Turābī’s successor as attorney general.115 The main reason for keeping the committee’s work secret seems to have been Numayrī’s fear of international pressure. The small committee charged with Islamizing the Penal Code of 1983 consisted of al-Nayāl ʿAbd al-Qādir Abū Qurūn, the son of a prominent Sufi master of the Qādiriyya brotherhood in Abū Qurūn; ʿAwaḍ al-Jīd Aḥmad, a former legal assistant of the attorney general Zakī Muṣṭafā; and Badriyya Sulaimān, a provincial judge.116 Abū Qurūn and al-Jīd had earned law degrees from the University of Khartoum in the early 1970s.117 Al-Turābī claims that the authors of the new Islamized codes were “some of his graduate students at the law faculty.”118 While the team was relatively inexperienced for the task they were given, all three had legal backgrounds and at least two had practiced law for some years. Abū Qurūn, who was known as a singer, became a self-styled religious leader during his studies in the law faculty; he made such an impression on Numayrī that he was appointed Numayrī’s chief adviser on Islamic affairs and the minister of legal affairs for the president.119 In this context, it is important to note that from the early 1970s Numayrī had been spiritually close to the Abū Qurūn Sufi order; he was particularly close to al-Nayāl Abū Qurūn’s father, Shaykh Abū Qurūn.120 The Abū Qurūn Sufi order believed in the “second coming” of a mahdī who would be a follower of their order. According to Zein, al-Jīd claimed that he had done most of the work of Islamizing the penal code. Neither al-Jīd nor Abū Qurūn seem to have undergone any specialized training with regard to the fiqh. His and alNayāl Abū Qurūn’s specialization in the common-law system would indeed

113 114 115 116 117 118 119 120

Ibid., 190. Ibid., 191. Bakr was one of the first leaders of the Muslim Brotherhood, but was expelled from it during the 1960s. See Ibid., 190–191. Osman, “The Political and Ideological Development,” 266. I could not find any more precise information on Sulaimān’s legal background. Layish and Warburg, The Reinstatement, 91. Durán, “The Centrifugal Forces,” 577. Warburg, “The Sharia in Sudan,” 627.

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explain the high degree of inconsistency between the fiqh and the Penal Code of 1983. However, while technical inconsistencies can be explained by their lack of expertise in the fiqh, the Penal Code of 1983 shows a general tendency toward aggravated punishments and thus it transformed the Penal Code of 1983 into a tool of political oppression. We can safely assume that the drafting committee’s intentions in this respect closely followed those of Numayrī and that, given Numayrī’s rising political problems on the domestic front, the Penal Code of 1983 was meant to serve as a tool of oppression.121 In an interview Zein conducted with Abū Qurūn, the latter maintained that the authors were “aware of the shortcomings of the law from an Islamic point of view” and that they introduced a stipulation at the end of each law that confirmed that any provision of the law that contradicts the sharīʿa would be considered invalid.122 While it is certainly true that such a provision unmistakably confirms the sovereignty of the sharīʿa, Abū Qurūn did not offer any convincing explanation for why these shortcomings occurred in the first place. In September 1983, the first new ‘Islamic’ laws were enacted as presidential decrees, and as of November 1983, the Sudanese parliament ratified the ‘September laws,’ without further discussion. The most important of these statutes were the Civil Procedure Act (1983), the Civil Transactions Act (1984), the Penal Code (1983), the Criminal Procedure Act (1983), the Evidence Act (1983), the Basic Rules of Judgment Act (1983), the Propagation of Virtue and the Prevention of Vice Act (1983), and the Zakat Act (1984).123 It is worth noting that all of the more significant laws enacted before the downfall of Numayrī in 1985 were initiated by the Sudanese president himself, who was, without any doubt, the driving force of the Islamization process.124 Durán overstates the responsibility and role of al-Jīd and Abū Qurūn when he writes “… these two jurists bear the full responsibility for the amputations and other brutalities carried out in the name of sharīʿa from September 1983 to March 1985” and “Whereas al-Turābī was the executioner of Numairi’s ‘Islamization,’ its architect was Abū Qurūn.”125 They certainly carried out the technical drafting of the new laws, and rather badly. They bear responsibility for the quality of the work they

121 122 123 124

125

For more details on how the penal code was used as a tool of oppression, see below. Zein, “Religion, Legality,” 247–248. See, e.g., Penal Code of 1983, art. 458 (5) or Evidence Act of 1983, art. 81. Layish and Warburg, The Reinstatement, 305. According to the Permanent Constitution of the Sudan (1973), art. 155: “The President of the Republic or the Prime Minister or any Minister or member of the Assembly may present any Bill to the People’s Assembly.” Durán, “The Centrifugal Forces,” 578.

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delivered. The political responsibility for the whole experiment, however, lies with president Numayrī alone. He chose jurists for the committee—jurists who apparently had little or no training in matters of sharīʿa, charged them with a task that would have taken even more experienced jurists much more time and then ensured that these poorly drafted laws were applied with the utmost rigor. Churned out in very much the same fashion as the Egyptianized legislation of the early 1970s, numerous provisions of the September laws conflicted with traditional Islamic jurisprudence ( fiqh). For instance, the Evidence Act required the testimony of four adult men to establish unlawful sexual intercourse (zinā), but in contradiction to the fiqh, “the testimony of others” was also admissable. The Penal Code of 1983 drew heavily on its 1974 predecessor, but punishments such as flogging, fines, or prison no longer corresponded to the gravity of the offense.126 As to ḥadd punishments, the Penal Code of 1983 took its inspiration eclectically from different schools in a way that aggravated possible punishments. At the same time, the use of ‘legal uncertainties’ (shubha), which are used in the fiqh to restrict the execution of ḥadd punishments, were limited. This, in combination with the admission of witnesses not approved by the fiqh, meant that the application of ḥadd punishments was facilitated considerably.127 Further, the new penal code introduced ḥadd punishments for crimes that would not be considered ḥadd, but which, according to the fiqh, would be taʿzīr crimes. Finally, by adding more severe punishments for political offenses, the new penal code provided a suitable instrument by which to oppress the political opposition to Numayrī’s regime. Numayrī’s Motives The arguments to explain Numayrī’s reasons for Islamizing the legal system in September 1983 mainly range from the (geo-)political to economic and historical rationales. Some authors also stress Numayrī’s Islamic reawakening and present his motives as personal. Clearly, the introduction of Islamic law cannot be understood without taking into account the deteriorating economic and political situation on the domestic front and the revolt in the South, as described above. Whether or not Numayrī was sincere in embracing Islamic law is secondary; ultimately, he introduced what his competitors had demanded for a long time. Thus, he brought a decades-long discussion about the identity of the Sudan to a conclusion that “had the potential to consolidate popular sup-

126 127

Köndgen, Das Islamisierte, 42. The Penal Code of 1983 stipulated ḥadd punishments for crimes similar to ḥadd offenses, but not covered by traditional definitions (Köndgen, Das Islamisierte, 42–44).

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port among Sudan’s 70 percent Muslim population.”128 Mansour Khalid (former foreign minister), who knew Numayrī well, stresses that Numayrī’s motives were mainly political, though he also discusses Numayrī’s personal motives. On the political side, he distinguishes between short-term and long-term. In the short-term, Numayrī wanted to stop the judge’s strike and defeat his opponent Ṣādiq al-Mahdī, who was still very popular despite Numayrī’s efforts to promote Ṣādiq’s uncle Aḥmad al-Mahdī as an alternative leader of the Anṣār. With regard to the judge’s strike, Jacobs convincingly argues that Numayrī’s legal Islamization “was a strategic move to destroy the autonomy of a westernized elite he did not trust.”129 Interestingly, Khalid dismisses some of the arguments put forward by observers. He quotes a number of occasions when Numayrī stopped al-Turābī and the Omdurman city council in their Islamization efforts because he considered them excessive. He thus excludes the claim that Numayrī’s introduction of the sharīʿa was “an act of religious fanaticism,” since Numayrī was “evidently, no religious fanatic.” Khalid ascribes this “very Machiavellian” attitude to Numayrī’s approach to Islam130 and is rather dismissive of the theory that Numayrī, by introducing the sharīʿa, sought to appease the Saudis, “whose … financial backing was so desperately needed.”131 According to Khalid, the Saudis were not “known to exert pressure on other states to adopt their system” and had generally learned to accept all types of government in the Sudan, including Numayrī’s earlier Arab socialism.132 Other motives, Khalid explains, were long-term: namely, weakening the Islamic movements in the Sudan—beyond Ṣādiq al-Mahdī’s Anṣār—at a time when Islam’s appeal was gaining momentum. Apart from Ṣādiq’s undiminished popularity, under al-Turābī the Muslim Brotherhood had expanded its influence, especially following the 1977 “National Reconciliation.” Thus, next to turning himself into a champion of the sharīʿa and thus leading the way on arguably the most pivotal Islamist project, the application of the sharīʿa, Numayrī managed to distract the Sudanese population from issues of corruption, mismanagement, economic problems, and the collapse of public services.

128 129 130 131 132

John L. Esposito, “Sudan’s Islamic Experiment,” Muslim World 76, nos. 3–4 (1986), 191. Jacobs, “The Sudan’s Islamization,” 206. Khalid, Nimeiri, 255. Ibid., 254. For Saudi Arabia’s reaction to the new laws, see below.

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Reactions to the New Laws When the September laws were publicly announced on 8 September 1983, the whole of the Sudan, including the Muslim Brotherhood, was taken completely by surprise. Interestingly, apart from the official announcement, which prohibited alcohol and established ḥadd punishments for theft, highway robbery, and unlawful sexual intercourse, the new, Islamized penal code was not made available to the Sudan’s courts for several weeks and the first public amputation did not take place before 10 December 1983.133 In the meantime, Numayrī tried to make full use of the momentum the 8 September announcement created and tried, through speeches in parliament and spectacular maneuvers, to present himself as an Islamic revolutionary.134 Thus, on 24 September 1983 alcoholic beverages with an estimated value of 11 million us dollars were destroyed in the streets or poured into the Nile. At the end of September 13,000 prisoners were released to “give them a second chance under Islamic law.”135 The reality that the application of the sharīʿa was not just a political slogan became clear when two young car thieves were convicted and had their rights hands severed in front of 3,000 cheering spectators. After intensive discussions, al-Turābī and the Muslim Brotherhood decided to back Numayrī, despite some reservations and al-Turābī’s exclusion from the codification process.136 As Osman aptly put it: during their entire existence as a movement the Muslim Brotherhood had been campaigning for the application of the sharīʿa and there it was, “out of the blue … the elation within the movement was indescribable.”137 Ḥasan al-Turābī, as modern Sudan’s leading Muslim intellectual, had played an eminent role for decades as an advocate of sharīʿa application. In his thinking, the question of Numayrī’s motives was hardly relevant. As al-Turābī himself said, “No one would oppose the implementation of shari’ah law or the banning of alcohol simply because Numairi might not be genuine.”138 It is clear that al-Turābī considered the introduction of the sharīʿa, however flawed, an important step that would contribute to the Muslim Brotherhood’s strategic goal, “the full establishment of all aspects of Islamic life.”139 Moreover, as the last remaining allies of a discredited regime,

133 134 135 136 137 138 139

Jacobs, “The Sudan’s Islamization,” 207. Ibid. Ibid. Osman, “The Political and Ideological Development,” 267. Ibid. Mohamed Elhachmi Hamdi, The Making of an Islamic Political Leader: Conversations with Hasan al-Turabi (Boulder, co: Westview Press, 1998), 26. Ibid.

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the Muslim Brotherhood themselves had come under pressure, not only by external critics but also from within the movement. The sudden introduction of the sharīʿa retrospectively vindicated their close cooperation with the regime. Internal discussions and questions concerning Numayrī’s motives were cut short, “what mattered was that the Islamic laws were in place and that a new atmosphere had been created which the movement must exploit to the full.”140 The Muslim Brotherhood was also motivated to support Numayrī’s legal Islamization policy because they stood to profit immensely from the new rules for Islamic banking. Since the early 1970s, the Muslim Brotherhood had gradually gained control of the Islamic banking system.141 While receiving popular support from “the rural masses and outside the intelligentsia circles generally,”142 the September laws were nevertheless rejected by many Sudanese. In the South, demonstrators protested that they were being relegated to a secondclass status in the new sharīʿa system. Not surprisingly, the Sudan Council of Churches also rejected the presidential decrees. In the North, a broad alliance of secular parties, labor unions, and liberal Muslims denounced the new laws as un-Islamic, misogynistic, generally repressive, and liable to destroy the unity of the country. As mentioned, Islamization in general, but especially the new penal code, was a major factor accelerating and aggravating the war in the South, which was still in its infancy. Even in Equatoria, where Numayrī’s administrative restructuring was initially supported, resistance against the central government grew. Theoretically, the new laws were designed to be administered in the South as well. However, in spring 1984 when the authorities tried to establish a sharīʿa court in Juba, they had to cancel the plan because of strong local resistance. Southerners living in the North, however, were subjected to floggings and amputations.143 Ṣādiq al-Mahdī became an early and outspoken critic of Numayrī’s version of sharīʿa when he gave a critical speech in the mosque of the Anṣār in Omdurman on 17 September 1983. In his sermon (khuṭba) he stated, “To cut the hand of a thief in a society based on tyranny and discrimination is like throwing a man into the water, with his hands tied, and saying to him: beware of wetting yourself ….”144 Ṣādiq al-Mahdī explained his views on the Islamic legal system

140 141 142 143 144

Osman, “The Political and Ideological Development,” 267. Warburg, “The Muslim Brotherhood,” 3. Osman, “The Political and Ideological Development,” 268. “Report from the South: Khartoum’s Greatest Challenge,” merip Reports, no. 135 (Sept. 1985), 12. Warburg, “The Sharia in Sudan,” 631.

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in two books.145 According to him, the works of the fuqahāʾ can only be understood in their historical context. It is important not to confuse the notion of sharīʿa with fiqh. The former encompasses the latter; the mujtahid (who interprets the fiqh) only grasps one aspect of the fiqh, that which corresponds with his time. Ṣādiq reproached the Islamists for continually and unduly merging the two notions “par besoin d’authenticité.”146 Thus, since traditional fiqh is only one possible interpretation of the sharīʿa, a modern interpretation must be different, and some of the (more prominent) features of historical fiqh are incompatible with the requirements of modern times, including the status of dhimmīs, slavery, the (inferior) status of women, the doctrine of the caliphate, the laws against rebellion, and the status of apostates and the ḥarbī.147 In all of these matters the solutions found in the fiqh are either too harsh, contrary to principles of equality (e.g., for dhimmīs, women, and slaves), unrealistic (e.g., the caliphate), dangerous, as it threatens the freedom of the opposition (law on rebellion), or contrary to the principle of reciprocity and tolerance (apostasy and ḥarbiyyūn).148 As to the ḥudūd, Ṣādiq stressed that it was necessary to apply fiqh-based principles in a way that avoids ḥadd punishments, for example, by utilizing repentance and legal uncertainties (shubuhāt). According to Ṣādiq al-Mahdī the introduction of Islamic penal law depends on the realization of social justice in a society; that is, the establishment of a society in which faith and the adherence to prescribed religious duties are living practices. When the whole of society lives in harmony with Islam and complete social justice has been achieved, crimes committed out of poverty and destitution disappear. When the September laws were introduced, however, the great majority of the Sudanese did not live in harmony with the teachings of Islam, nor had social justice been achieved. Both factors contributed considerably to the extreme nature of the experiment. According to Ṣādiq, Islamic penal law is unthinkable without an independent and neutral judiciary that is controlled by a Supreme Court, one in which non-Muslims and women would be allowed to work. Furthermore, special courts or emergency courts (and this

145

146 147 148

I follow Bleuchot, “Islam, droit pénal et politique: sur deux ouvrages de Sadiq al-Mahdi,” in Hervé Bleuchot, Christian Delmet, and Derek Hopwood (eds.), Sūdān: History, identity, ideology / Histoire, identités, idéologies, 269–285 (Reading: Ithaca Press, 1991). Bleuchot analyzed two of Ṣādiq’s books. One, Yasʾalūnaka ʿan al-mahdiyya (Beirut, 1975) was published before the September laws, and the second, al-ʿUqūbāt al-sharʿiyya wa-mawqifuhā min al-niẓām al-ijtimāʿī l-islāmī (Cairo, 1987), after the September laws. Bleuchot, “Islam, droit pénal et politique,” 273. Ḥarbiyyūn are non-Muslims residing outside the territory of Islam. Bleuchot, “Islam, droit pénal et politique,” 273–274.

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is certainly a conclusion he drew from Numayrī’s experiment) would have no place in an Islamic judicial system. Ṣādiq al-Mahdī was arrested 25 September 1983, one day after the new laws came into force. He stayed in prison until April 1985, the end of the Numayrī era. We discuss below whether or not Ṣādiq al-Mahdī’s reformist approach to the sharīʿa had any bearing on his position and political decisions when, as prime minister between 1986 and 1989, he was in a position to choose between abolishing Numayrī’s version of the sharīʿa or replacing it with a reformist code according to the principles explained above. As to the Anṣār’s rival Sufi brotherhood, the Khatmiyya, unlike the Anṣār, it had shunned an active role in Sudanese politics. This approach continued under Numayrī. However, its leader Muḥammad ʿUthmān al-Mīrghanī, who was also head of the Sufi Islamic Revival Committee, fully backed the September laws. After Numayrī’s downfall, he reversed course and judged the codification and application of the sharīʿa between 1983 and 1985 to have been an error—misleading and unjust. He voiced his hopes, though, that with the help of trained ʿulamāʾ and fuqahāʾ the flaws of Numayrī’s legislation could be redressed.149 Maḥmūd Muḥammad Ṭāhā, spiritual leader of the reformist ‘Republican Brothers’ was one of the most outspoken critics of the introduction of the sharīʿa. During a prison term from 1946 to 1948, Ṭāhā developed his own legal theory; he propagated a liberal version of the sharīʿa, one that was adapted to the needs of modern society. Based on his teachings,150 the Republican Brothers, who had never participated in elections as a political party, called for a democratic state with equal rights for Muslims and non-Muslims and for both men and women. When Numayrī banned political parties after his May 1969 coup, Ṭāhā had already transformed his party into a movement called the ‘Republican Brothers,’ which did not oppose Numayrī. As a result, they were not suppressed like other groups and continued to exist. In fact, during the first eight years of Numayrī’s rule the Republican Brothers were among his closest allies,151 or, according to other observers, Numayrī at least passively consented152 to Ṭāhā’s anti-sectarian and, later, anti-communist agenda and 149 150

151 152

Warburg, “The Sharia in Sudan,” 635. His two most important books are Ṭarīq Muḥammad (The path of Muhammad) and alRisāla al-thāniyya min al-Islām (The second message of Islam). The latter was translated into English; see Mahmoud Mohamed Taha, The Second Message of Islam (Syracuse: Syracuse University Press, 1987). Warburg, Islam, 162. Rogalski describes the position of the Republican Brothers as “passives Einverständnis,”

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endeavors to seek a formula that would guarantee a lasting compromise with the South. Indeed, since 1951 the Republican Brothers ( jumhūriyūn) had been calling for a federal solution to the problem of the South.153 When Numayrī opted to reconcile with the Umma Party and the Muslim Brotherhood, the alliance between the Republican Brothers and Numayrī ended. As Warburg points out, both regarded Ṭāhā’s teachings as heretical.154 As a rather small movement, the Republican Brothers avoided an outright confrontation with Numayrī and chose instead to work and publish works against the Muslim Brotherhood and al-Turābī. In the long run, the confrontation with the regime was, however, unavoidable, if only because the Republican Brothers had not concealed their strong opposition to the introduction of the sharīʿa in the rigorous form put forth by Numayrī. When, in June 1983, the movement criticized the incumbent head of the Sudanese state security and vice president, General ʿUmar al-Ṭayyib, over the case of the radical Egyptian preacher Shaykh al-Muṭīʿī,155 Ṭāhā and fifty of his followers were arrested and remained in prison until December 1984, without being charged or even interrogated. In March 1984, with their leadership still in prison, the Republican Brothers started a campaign against the September laws, published a booklet and leaflets, and criticized Numayrī’s version of the sharīʿa on the grounds that it inherently contradicted the traditional sharīʿa and violated the Sudanese constitution.156 When they left prison in December 1984, they immediately published another leaflet that strongly criticized the September laws and demanded their repeal: The September laws have distorted Islam in the eyes of intelligent members of our people and in the eyes of the world … These laws violate Shari‘a (Islamic law) and violate religion itself …. We call for the repeal of the

153 154 155

156

that is, they gave their passive consent (to Numayrī’s political course). Jürgen Rogalski, “Die Republikanischen Brüder im Sudan. Ein Beitrag zur Ideologiegeschichte des Islam in der Gegenwart,” ma thesis (Freie Universität, Berlin, 1990), 39ff. Warburg, Islam, 162. Ibid. Shaykh al-Muṭīʿī, who was held partially responsible for violent clashes between Muslims and Christians in Cairo in 1981, continued his anti-Christian preachings in Khartoum in the Kobar mosque and even on Sudanese television. He also called for the immediate arrest of the Republican Brothers. Warburg, “The Sharia in Sudan,” 163 and Rogalski, “Die Republikanischen,” 42–43. Abdullahi Ahmad an-Na’im, “The Islamic Law of Apostasy and its Modern Applicability: A Case from the Sudan,” Religion 16 (1986), 205.

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September 1983 laws because they distort Islam, humiliate the People and jeopardize national unity ….157 In 1985, he paid for his uncompromising opposition with his life; he was executed for apostasy.158 Interestingly, Numayrī’s two major allies in the Arab Middle East, Saudi Arabia and Egypt, did not support the new laws. Saudi Arabia agreed in principle, but criticized the methodology of the codification as well as the speed with which it had been realized. President Mubarak of Egypt was interested in a peaceful settlement of the conflict with the South because the Jonglei canal project in the South was of great importance to Egypt’s agriculture.159 The secretary general of the Saudi-financed Muslim World League in Mecca, ʿAbdallāh ʿUmar Naṣīf, sent a telegram to Numayrī to congratulate him on the introduction of the sharīʿa and defended its introduction in the publications of the Muslim World League.160 The Grand Shaykh of al-Azhar, Jād al-Ḥaqq, supported Numayrī’s new Islamic laws but criticized the fact that al-Azhar had not been consulted when the text of the legislation was drafted.161 Overall, reactions to the introduction of the sharīʿa were mixed; cooperation in the actual implementation of the new laws was slow and met with resistance in the first phase before the declaration of the state of emergency. Neither the judiciary nor the bureaucracy in general did much more than pay lip service to the new laws; even the people’s assembly seems to have resisted them.162

157 158

159 160 161 162

Quoted by Rogalski, “Die Republikanischen,” 44–45. On the juridical aspects of the Ṭāhā case see an-Na’im, “The Islamic Law of Apostasy.” On Ṭāhā and his weltanschauung see for example, Rogalski, “Die Republikanischen,” 59– 121 and Rogalski, “Maḥmūd Muḥammad Ṭāhā—Zur Erinnerung an das Schicksal eines Mystikers und Intellektuellen im Sudan,” Asien.Afrika.Lateinamerika 24 (1996): 47–61. A more recent analysis of Ṭāhā’s ideas is Mohamed A. Mahmoud, Quest for Divinity: A Critical Examination of the Thought of Mahmud Muhammad Taha (Syracuse, ny: Syracuse University Press, 2006). On the death sentence for Ṭāhā and the legal problems involved, see Declan O’Sullivan, “The Death Sentence for Mahmoud Muhammad Taha: Misuse of the Sudanese Legal System and Islamic Shari’a Law?” International Journal of Human Rights 5, no. 3 (2001): 45–70. Warburg also gives a concise summary of the background of the Ṭāhā case. See Warburg, Islam, 160–165. Köndgen, Das Islamisierte, 48. Schulze, Islamischer Nationalismus, 381. Köndgen, Das Islamisierte, 48–49. Osman, “The Political and Ideological Development,” 269.

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Emergency Courts Implement the sharīʿa In April 1984, the deteriorating economic situation led to a wave of strikes that included the judiciary. The judges voiced grievances that were directly related to the September laws. In order to continue within the new system, some of the most prominent judges had to undergo further training, while others were summarily dismissed.163 To cope with the crisis, on 29 April 1984 Numayrī declared a state of emergency, which he used in the remaining year of his rule to quell resistance to his regime in general and to the implementation of the sharīʿa in particular. For this purpose, a competing body of emergency courts, which were renamed (after three months) “courts of instantaneous justice,” were created in Khartoum. In order to speed up and smooth the process of applying the sharīʿa, Numayrī made sure that the new courts were staffed with members or sympathizers of the Muslim Brotherhood or other supporters of his “legal revolution.” While the regular courts dealt with pending cases, the emergency courts had jurisdiction over all new court cases, this meant, effectively, that the latter ruled on all cases that were to be judged in accordance with the September laws. Each emergency court consisted of three members, one civilian and two military or security officers. The military or security officers who acted as judges in these emergency courts often had no legal training, and neither they nor the majority of the civilians in the emergency courts had any training in sharīʿa law.164 Furthermore, Numayrī made the presidents of the new courts accountable to him, thus the chief justice was disempowered and Numayrī took formal control of an important part of the judiciary. Osman offers a vivid account of how these new parallel courts, mainly due to the strong role the Muslim Brotherhood and their sympathizers played in them, influenced how the sharīʿa was applied. He further explains how their fervor led to growing tensions with the old secular guard of the regime and ultimately with Numayrī himself. Osman further relates that the Brotherhood judges ensured that “ministers and other high officials were routinely dragged in front of the new all-powerful courts to testify and face charges.”165 According to his version of events, “when it entailed the humiliation of top officials,” the application of the sharīʿa received a lot of public support; but it was also supported because the crime rate in the capital dropped sharply.166 However, Osman’s version does not take into account the reality that the trials against 163 164 165 166

Ibid., 294. Zein, “Religion, Legality,” 209–210. Osman, “The Political and Ideological Development,” 269. Osman does not disclose his sources regarding the alleged decrease in the crime rate.

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high-ranking officials or personalities close to the regime were only one side of the matter. While media discussion about these cases might have generated some public support for the application of the sharīʿa (based on a perception of fairness and balance), in fact, it was a rather brutal and often enough bloody affair marked by executions, amputations, and floggings. In addition, as Kok correctly points out, the application of the sharīʿa was— and still is—marked by a strong class bias. Thus, the former minister for presidential affairs, Bahāʾ al-Dīn, received a rather mild punishment (a fine and prison term) for the embezzlement of 1,180,139 us dollars. In contrast, the jobless Ṣiddīq Ramaḍān al-Mahdī was sentenced to cross-amputation for stealing electric wire worth less than 20 us dollars because his theft was considered to be a case liable to the ḥadd penalty.167 According to Kok’s evaluation, over 98 percent of the ninety-three victims168 of amputation sentences were from poor and marginalized parts of the Sudan and all except one were workers, car washers, domestic servants, unemployed, or workers at building sites, etc. During the first three months that the emergency courts functioned, the defendants were denied the right to appeal against these often harsh and (once imposed) irreversible decisions. The only exceptions were decisions involving the death penalty, which had to be approved by the president. And, after three months, when the right to appeal was finally reintroduced, the court of appeal in Khartoum was staffed with “the most notorious pro-government judges who had appeared during the experiment,” among them al-Mukāshifī Ṭāhā l-Kabbāshī, who, in Cairo in 1986, had published a personal account and justification of his role as a judge in Numayrī’s parallel courts.169 Apart from the fact that the judges of the court of appeal were handpicked to ensure that the new machinery worked smoothly, the three court of appeal judges did not give up the seats they held in lower courts. This stood in clear contradiction to Article 245 of the Criminal Procedure Act of 1983 and in practice meant that defendants would, in some cases, appear before the same judges twice. In summary, neither the judges nor the legal structures established by Numayrī were of the quality necessary for the competent implementation of the

167 168

169

Other authors have been unable to corroborate this argument which was also used by the regime. Kok, “Conflict,” 244. It is not entirely clear during which time span these amputations took place. He probably refers to the time between December 1983, when the first amputation took place, and April 1985 when Numayrī was ousted. See al-Mukāshifī Ṭāhā l-Kabbāshi, Taṭbīq al-sharīʿa al-islāmiyya fī l-Sūdān bayna al-ḥaqīqa wa-l-ithāra (Cairo: al-Zahrāʾ li-l-Iʿlām al-ʿArabī, 1986).

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September laws, which were marked by incoherence and contradiction with the fiqh. During this phase, the Muslim Brotherhood received a “major political and psychological boost” from their role in the emergency courts/courts of instantaneous justice. According to Osman, who generally writes from a pro-Muslim Brotherhood perspective, “the general atmosphere favored the Islamists,” Sufi leaders started to support the implementation of the sharīʿa and even left-wing intellectuals announced their “conversion to the path of Islam.”170 The idea that “the language [the] Ikhwan kept speaking in relative solitude (turned) into the language of the majority,”171 seems doubtful considering the negative reactions to the introduction of the sharīʿa described above. However, growing popular support seems to have emboldened hardline judges such as al-Kabbāshī to defy the regime and the president himself more and more openly. For example, al-Kabbāshī clashed with al-Rashīd alṬāhir, al-Turābī’s successor as attorney general, when al-Ṭāhir tried to protect some leading Sudanese Socialist Union figures against charges of corruption. In another case, the brother of the first vice president ʿUmar Muḥammad alṬayyib was imprisoned for corruption and his property was confiscated.172 These and a number of similar cases brought the Muslim Brotherhood and the old guard of the Sudanese Socialist Union into direct confrontation and created a public image of the Muslim Brotherhood as the main driving force behind the implementation of the sharīʿa. In consequence, this led to Numayrī’s crackdown against his former allies. He could not allow the Muslim Brotherhood to take center stage as the champions of Islamization, nor could they be allowed to openly challenge his authority or alienate him from the leading old guard of the Sudanese Socialist Union. Thus, the emergency courts, subsequently renamed courts of instantaneous justice, became a parallel court system, one that Numayrī clearly preferred as an efficient tool for the speedy and unquestioned implementation of the sharīʿa. Their decisions were reported on a daily basis in the state-owned media, while the same media (state tv, radio, and press) suggested that the (traditional) judiciary was “less interested in implementing Shari’a, and even incapable of doing so.”173 Being sidelined in this crude manner, the traditional judiciary had to find a role, and it was clear that the only option was to abide by the new rules. Under chief justice Dafʿallāh al-Ḥājj Yūsuf, the judiciary steered a conservative course that stood in contrast to the radical approach of the emergency courts. Thus, Yūsuf issued a 170 171 172 173

Osman, “The Political and Ideological Development,” 270. Ibid. Ibid., 272. Zein, “Religion, Legality,” 213–214.

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large number of criminal circulars, most of them still applicable today, in order to clarify the many gaps and the lack of clarity in the new legislation and at the same time to streamline the application of the sharīʿa, give clear guidance to the judges bound to apply it, ensure the rule of law, and protect the rights of citizens. During my interview with Yūsuf, the former chief justice confirmed his critical stance toward Numayrī’s political interference in judicial matters. He insisted that his main achievement during his tenure was the body of criminal circulars that were instrumental in creating a clear framework for the application of the sharīʿa.174 He also issued a circular explaining the trial of civil cases in the emergency courts. However, since the new courts were under the direct supervision of Numayrī himself, attempts to supervise these courts and keep them within the judiciary had only a limited effect. It should be noted that Yūsuf, while being critical of the emergency courts and their judicial practice, nevertheless, did not resign and eventually, in September 1984, was replaced. The Failed Introduction of an Islamic Constitution By June 1984 Numayrī had already suggested a long list of constitutional amendments to the people’s assembly. The Islamization of the legal system, which had been designed under a secular constitution, meant that a number of laws were unconstitutional. However, with the increasing number of supporters of the September laws in the Supreme Court, the Court was not likely to undertake a judicial review of these laws.175 Numayrī then suggested the Islamization of the constitution, to bring it into line with sharīʿa-based legislation and, above all, his political interests. He wanted to replace the secular wording of the 1973 constitution with Islamic terminology, such that the president would become the leader of the faithful (qāʾid al-muʾminīn) for life, and the parliament would become a consultative council (majlis al-shūra), and swear an oath of allegiance (bayʿa) to whoever the leader of the faithful determined to be his successor. Thus, the president would no longer be accountable to parliament, though the new consultative council would owe their allegiance to him. According to the suggested reforms, Article 1 declared the sharīʿa to be the sole source of legislation, in contrast to the 1973 constitution, in which it was on an equal footing with customary law. The South was to lose its autonomy; all reference to the ‘Southern Provinces Regional Self-Government Act’ of

174 175

Interview with Dafʿallāh al-Ḥājj Yūsuf, 18 May 2009. Kok, “Conflict,” 242. Before the introduction of a Constitutional Court in 1998, questions of constitutionality were decided by the Supreme Court.

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1972 was dropped. Not surprisingly, Numayrī’s draft of constitutional amendments met fierce resistance from the national parliament and from regional parliaments in the South. The September laws had been approved by the parliament in order to avoid its dissolution and, to be sure, because of some genuine sympathy for the idea of Islamizing the legal system. But the acceptance of Numayrī’s constitutional amendments would have amounted to a near total (self)-disempowerment of parliament. Once Numayrī realized that, despite some suggestions for amendments, parliament could not be subdued, he adjourned the discussion.176 Islamic Legislation as a Tool of Political Oppression: The Cases of Ṭāhā and Shāh Probably the most blatant abuse of the implementation of Numayrī’s version of the sharīʿa was the trial and subsequent execution of Maḥmūd Muḥammad Ṭāhā.177 In 1984, the Republican Brothers launched a campaign against the September laws, which they criticized for being unconstitutional and for the many ways they contradicted the fiqh. Moreover, three constitutional lawsuits were filed on the grounds that the new laws discriminated against women and non-Muslims and violated certain provisions of the constitution. With the justification that the Republican Brothers were not the immediate victims of the September laws, all these suits were dismissed. Numayrī would not tolerate any further criticism of his sharīʿa: after the Republican Brothers published the leaflet quoted above, on 5 December 1984 the seventy-six-year-old Ṭāhā was arrested again, and on 8 December 1984, he and four of his followers were sentenced to death after two brief sessions that lasted less than one hour. The sentence was confirmed by the criminal court of appeal and Ṭāhā was hanged for apostasy on 18 January 1985. The four followers that were convicted with him were initially given one month to repent, but Numayrī himself reduced this to three days. They repented and their lives were spared. Ṭāhā was not given a chance to recant because “he had persisted in advocating his heretical views for many years and refused to heed judicial and other pronouncements.”178 His property was confiscated and he was denied a proper Muslim burial. Not surprisingly, al-Kabbāshī, the notoriously hard-line judge, who was a member of the criminal court of appeal, played a pivotal role in the conviction of Ṭāhā.179 The indictment was initially construed as offenses 176 177 178 179

Köndgen, Das Islamisierte, 54–55. If not stated otherwise, I follow an-Na’im, “The Islamic Law of Apostasy.” An-Na’im, “The Islamic Law of Apostasy,” 208. For his version, see al-Kabbāshī, Taṭbīq al-sharīʿa, 85–101.

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against the state, with no mention of apostasy. Then, after the president had agreed to the trial, Article 458(3) of the Penal Code and Article 3 of the Basic Rules of Judgment Act were added by the state minister for criminal affairs. Article 458(3) stipulated that even uncodified ḥadd offenses could be punished. During the appellate proceedings Ṭāhā and his four co-defendants, in addition to the state security offenses, were sentenced for apostasy, based on the 1968 (juridically irrelevant) decision of a sharīʿa court, which, at the time, had no jurisdiction in cases of apostasy. The criminal court of appeal further quoted al-Azhar University and the Muslim World League, who both declared Ṭāhā an apostate. The Muslim World League had called upon Numayrī to indict Ṭāhā for heresy and for being the Antichrist (dajjāl).180 Apart from the highly-flawed underpinnings of the judgment, the sentence contravened Article 247 of the Criminal Procedure Act that exempted persons over seventy years of age from the death penalty. The criminal court of appeal had dismissed this provision, arguing that it was not applicable in ḥadd cases, despite the absence of such a provision in the Criminal Procedure Act of 1983. It also violated Article 70 of the 1973 Permanent Constitution of the Sudan which clearly states that no penalty can be imposed in the absence of a pre-existing penal provision. In 1986, posthumously, the death sentence of Ṭāhā was eventually declared null and void. The execution, which was highly controversial in the Sudan and strongly criticized in the western press, was just one more step toward the downfall of the Numayrī regime. In summary, one cannot but agree with an-Na’im who correctly concluded that Ṭāhā “was sacrificed in the cause of maintaining President Nimeiri’s personal drive for Islamization … [Ṭāhā] was killed in order to frighten others who might have been contemplating criticism or opposition to Nimeiri’s policies in general, and his Islamization policy in particular.”181 The case of the Indian businessman Lalitt Ratnalal Shāh and his fellow defendants generated less international media attention, though their case was similar to that of Ṭāhā; it thus offers a striking example of how the new sharīʿa laws were abused for political ends.182 Shāh was charged with ribā (usury) and “destruction of the national economy” (Art. 98 of the Penal Code of 1983) in a court of first instance presided over by al-Mukāshifī l-Kabbāshī.183 Because of

180 181 182 183

For a detailed account of the Muslim World League’s position on Ṭāhā see Schulze, Islamischer Nationalismus, 377–386. An-Na’im, “The Islamic Law of Apostasy,” 210. I follow Zein’s account of the Shāh case, Zein, “Religion, Legality,” 297ff. For al-Kabbāshī’s version of the case, see al-Kabbāshī, Taṭbīq al-sharīʿa, 102ff.

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contradictory statements by expert witnesses, the charges, according to Article 98, were dropped and Shāh was sentenced to ten years imprisonment and 90 lashes for dealing in foreign currency without a license. However, since this included ribā (interest), and ribā, like ridda (apostasy) in the case of Ṭāhā, had not been codified, the court relied on Article 3 of the Basic Rules of Judgment Act which made a decision based on the Qurʾān and Sunna possible, even if there was no legislative text. Article 3, however, contradicted the Sudan’s 1973 constitution, which clearly stipulated that no punishment could be imposed without a pre-existing definition (in the penal code) of the crime in question. While this was not the case, the Supreme Court panel that judged on the constitutionality of the trial court’s decision dismissed Shāh’s constitutional complaint, because, according to the panel, Article 3 of the Basic Rules of Judgment Act did not violate Article 70 of the 1973 constitution. In fact, this decision meant that the sharīʿa replaced the constitution as the highest source of law. While before Numayrī’s legislative revolution the secular, Permanent Constitution of 1973 was the supreme source of law, after Islamization, at least under Numayrī’s rule, it only held this role if there was no contradiction with the sharīʿa.184 Apart from the constitutional aspect, which the panel solved by simply ignoring the constitutional conflict, there were several other aspects to the case. It showed the low level of the legal reasoning used by key legal actors and at the same time it exposed how far the legal structures of the new courts had moved from the sound legal principles guaranteed under the permanent constitution of 1973. In this particular case, this was demonstrated by al-Kabbāshī’s leading role in all three stages of the lawsuit. He was the trial judge responsible for the initial sentence, he was the head of the criminal court of appeal that confirmed the initial judgement, and in addition, he was a member of the panel of the Supreme Court that dismissed Shāh’s constitutional complaint. While al-Kabbāshī’s ubiquity made the case a travesty of justice, it also had an important political background. The case clearly demonstrated the contradiction between Islamic principles (the prohibition of ribā (interest, or usury)) and the Sudanese banking system, which was based on interest. As a consequence, and also in furtherance of their economic interests, the criminal court of appeal called on the government to prohibit Sudanese banks from taking interest. The abolition of bank interest after Shāh’s trial clearly demonstrated

184

Under the constitution of 1973 there were three sources of law: customary law, sharīʿa law, and common law. The Permanent Constitution of 1973 was the highest source of law under the common law, being the dominant of the three aforementioned sources.

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the power of the new courts; the Muslim Brotherhood was the main driving force on the one hand and they were the main beneficiaries on the other, as they already dominated the Islamic banking sector. While the above cases illustrate the malfunctioning of the emergency courts/courts of instantaneous justice and their political use by the Muslim Brotherhood, at other times Numayrī interfered more directly. In a case in which seven defendants stole 12,000 meters of high-voltage wire, Numayrī identified the crime and specified the punishment in a public speech before the case had been tried in a court. The case was subsequently transferred to court no. 5 in Khartoum, which was headed by a judge who was happy to confirm and follow Numayrī’s “sound judgment.” The same judge, ʿAbd al-Raḥmān, was appointed chief justice not much later.185 The Regime Falls Apart In September 1984, on the first anniversary of the September laws, the Muslim Brotherhood organized, as a show of force, an International Islamic Conference in combination with a mass demonstration; Osman speaks of a million participants186 in this demonstration. Osman describes both the conference and the demonstration as decisive turning points in the relationship between Numayrī and the Muslim Brotherhood. Despite the “national reconciliation” policy, their relationship had never been easy; rather it was marked by mutual distrust. Numayrī was clearly aware that the Muslim Brotherhood posed a potential threat to his regime, and this suspicion was reinforced by domestic and foreign secret service reports on the Muslim Brotherhood’s clandestine activities and contacts and their leaked strategy papers. In addition, leading members of the Sudanese Socialist Union in Khartoum, but also powerful regime representatives at the regional level, repeatedly clashed with the Muslim Brotherhood over issues of corruption, food speculation, and other affairs.187 There were also other groups that were wary of and sought to curb the Muslim Brotherhood’s influence; these groups included businessmen who had lost ground as a result of the ever expanding economic activities of the Muslim Brotherhood, the security chief and first vice president ʿUmar Muḥammad al-Ṭayyib, who was close to the United States, and then finally the United States and Egypt, which were unhappy not only with the Muslim Brotherhood’s influence, but also with Numayrī’s handling of the application of the sharīʿa. Numayrī first countered 185 186 187

On this case, see Zein, “Religion, Legality,” 214–215. The real numbers are probably substantially lower. Nevertheless, it seems to have been an impressive show of force. See Osman, “The Political and Ideological Development,” 276–277.

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the Muslim Brotherhood’s influence in the streets, by restoring the high positions of their adversaries who had fallen from grace. Regardless of Numayrī’s intentions—whether he had planned a harsh crackdown on the Muslim Brotherhood or whether it was indeed the result of us and Egyptian pressure, as Osman claims188—in spring 1985 all the Muslim Brothers were dismissed from government and their positions in the Sudanese Socialist Union. On 9 March 1985, al-Turābī and 200 Muslim Brothers were imprisoned, among them the president of the people’s assembly and al-Kabbāshī. As an important representative of the old regime, al-Kabbāshī stayed in prison even after the release of prisoners after Numayrī’s fall. For the Muslim Brothers, this last-minute wave of arrests came as a blessing in disguise. Instead of being drawn into the abyss, they were able to portray themselves as victims of the very regime they had helped to stabilize for so long. When, at the end of March 1985, Numayrī abolished the subsidies for bread and fuel, political parties, labor unions, and professional associations formed a broad coalition demanding his resignation. Numayrī, with few allies left, underestimated the imminent threat to his rule and flew to the United States for talks with us president Ronald Reagan. In his absence, bread riots broke out, then escalated to a general strike. On 6 April, while Numayrī was on his way back from the United States, the Sudanese military assumed power.

Procrastination under Siwār al-Dhahab and Ṣādiq al-Mahdī (1985–1989) Siwār al-Dhahab and the sharīʿa The new Transitional Military Council under Siwār al-Dhahab (April 1985– April 1986) abrogated the 1973 constitution, abolished Numayrī’s single political party, the Sudanese Socialist Union, and reinstated the ‘transitional’ constitution of 1956, thus guaranteeing religious freedom, political pluralism, and the separation of powers once again. The food subsidies were restored. The execution of certain ḥadd punishments were suspended (e.g., amputations), but floggings were still administered. Those convicted under the September laws remained in prison, and were joined by others likewise sentenced to single or cross-amputation.189 General Siwār al-Dhahab declared that the future of the sharīʿa would not be decided by the Transitional Military Council but would be

188 189

Ibid., 278. See Sudan Monitor 1, no. 6 (December 1990).

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a task for the government that would take over at the end of the one-year transition period. The political forces that rejected the September laws proved too weak to have a decisive influence on its abolition during the one-year reign of the Transitional Military Council. Moreover, key ministers in the new cabinet, such as Prime Minister al-Jizūlī Dafʿallāh, were either Muslim Brothers or sympathetic to their cause. In fact, the new rulers liberated Ḥasan al-Turābī and other Muslim Brotherhood leaders immediately after the coup and al-Turābī was the first political leader to meet al-Dhahab. In this meeting, al-Turābī expressed his full support for the application of the sharīʿa; his only reservation was that it had not been all-embracing enough because constitutional law, especially the principle of shūrā had been omitted.190 When the National Gathering for the Salvation of the Homeland (ngsh), a front of the old sectarian parties, several trade unions, and professional associations called for the isolation of the Muslim Brotherhood, the Transitional Military Council refused. Directly after his release al-Turābī began organizing a demonstration demanding the retention of the sharīʿa. Using the newly attained political freedoms—more than forty political parties had been founded or resurrected after the Transitional Military Council takeover—al-Turābī established the National Islamic Front, an alliance of Muslim Brothers, Sufis, tribal leaders, ʿulamāʾ, and former military officers. In May 1985, the National Islamic Front presented its program on the question of Southern Sudan. It called for the immediate Islamization of the South; in its political program, it portrayed itself as a hard-core defender of the sharīʿa, and claimed that Islamic law also best protected the culture and identity of non-Muslims. The sharīʿa, the National Islamic Front claimed, is “closer than any other legal system to the African cultural heritage, and because it protects the entity and the culture of the non-Muslims, it should be maintained as the law of Sudan.”191 Resistance to Islamization, according to the National Islamic Front’s view, is either ‘a western plot’ or emanates from ‘Southern Marxists’ such as the Sudan People’s Liberation Army leader John Garang. It is important to realize that economic interests remained a key part of the National Islamic Front’s enthusiasm to retain the sharīʿa. The banks controlled by the Muslim Brothers had made considerable profits under its Islamic provisions.

190 191

Warburg, “The Sharia in Sudan,” 634. Ibid., 635, quoting the National Islamic Front brochure: The Islamic National Front (sic) presents: The Southern Sudan Question, Review, Analysis, Proposals (n.d.; n.p.).

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Indecision and Procrastination under Ṣādiq al-Mahdī When the military ceded power to a civilian government in 1986, none of the Sudan’s urgent problems had been tackled, and were thus inherited by the different coalition governments under Ṣādiq al-Mahdī. They remained unresolved in the following three years of civilian rule. The economy continued in a precarious situation. No peace treaty with the Sudan People’s Liberation Army had been negotiated. And, although protest against Numayrī’s abuse of Islamic law had been a driving force behind the 1985 demonstrations, the September laws (though the application of the ḥudūd was suspended) were still in place. Unsurprisingly, the first free elections in May 1986 resulted in a majority win by the two largest sectarian parties, the Umma Party and the Democratic Unionist Party. Together they won 162 seats out of 301, an absolute majority.192 The Umma and Democratic Unionist Party, together with four Southern parties, formed a coalition government with the National Islamic Front and left wing parties in the opposition. The National Islamic Front, with 51 seats,193 proved successful, but was excluded from participation in the new coalition government because it was held (partially) responsible for the oppression of the Numayrī regime. The National Islamic Front was especially successful in the capital Khartoum, where it won 42 percent of the seats. Of the 28 seats reserved for university and college graduates 23 were won by the National Islamic Front, which was testimony to their popularity in the academic milieu.194 Ṣādiq alMahdī, as the new prime minister, immediately resumed the quest for an Islamic alternative to the existing sharīʿa laws. In his first speech in May 1986, alMahdī promised to repeal the September laws and commissioned the attorney general ʿAbd al-Maḥmūd Ṣāliḥ to draft an alternative Islamic penal code that was based on sound rules and Islamic notions of equity.195 The renewed discussion provoked fierce criticism from the bar association and the Sudan Council of Churches.196 The Sudan People’s Liberation Army was equally opposed

192

193 194 195 196

However, the elections were a setback for the Democratic Unionist Party, which gained only 63 seats instead of the 101 seats it had won in 1968. The Umma, in contrast, went up from 72 seats (1968) to 100 seats. See also Peter Nyot Kok, Governance and Conflict in the Sudan, 1985–1995: Analysis, Evaluation and Documentation (Hamburg: Deutsches OrientInstitut, 1996), 43–49. Altogether, 48 seats remained unoccupied as a result of the war. Kok, “Conflict,” 45. Kamal Osman Salih, “The Sudan 1985–9: The Fading Democracy,” in Peter Woodward (ed.), The Sudan after Nimeiri (London: Routledge, 1991), 50. Salih, “The Sudan 1985–9,” 62. See e.g., Les Chrétiens et la Législation sur la Shari’a au Soudan, in Islam et Societés au Sud du Sahara 3, (1989).

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to any kind of Islamic law and demanded its complete abolition as one of the main preconditions for a peaceful settlement. Despite al-Mahdī’s repeated promises to revoke the September laws and replace them with completely overhauled legislation, only a few minor corrections were ever effectuated.197 One of the reasons for al-Mahdī’s inability or unwillingness to live up to his promises was the increased pressure by the National Islamic Front. They had withdrawn their earlier pledge to not oppose the repeal of the September laws, provided they were replaced by a new sharīʿa-based penal code. Ṣādiq al-Mahdī did not want to give the National Islamic Front a pretext to call for demonstrations, nor could he afford to frustrate the expectations of his own constituency. When I interviewed him, Ṣādiq al-Mahdī blamed his various coalition partners for his lack of success in abolishing the September laws,198 however, I believe that his indecision and lack of clarity on this important issue were of his own making. For several decades, the Umma/Anṣār had demanded an Islamic system of government for the Sudan. Ṣādiq al-Mahdī himself had demanded that Islam be the religion of the state and the sharīʿa be the main source of legislation. The South was to be fully Arabized and Islamized. On the other hand, he agreed with many of the grievances of Southerners against the sharīʿa, namely, that it was making non-Muslims second-class citizens. Therefore, he proposed that taxation should be based on a unified secular legislation. The jizya (the head tax for non-Muslims) was not to be applied and zakāt was to be paid by Muslims only.199 However, when the Umma Party was finally at the helm of the state, they did not move forward with an Islamic constitution nor did they replace Numayrī’s penal code with a new Islamic code, possibly based on Ṣādiq al-Mahdī’s own proposals.200 As shown above, when the September laws were introduced, al-Mahdī argued that the sharīʿa should not be applied before social justice was firmly established in the Sudan. However, by 1986 the political context had changed and Ṣādiq al-Mahdī, short of taking any decisive steps, began to argue that the Sudanese people did not want a secular state, the idea of which

197 198 199

200

Flogging, used rather summarily under the September laws, had been limited to ḥadd offenses. Interview with Ṣādiq al-Mahdī, 9 June 2004. Warburg, “The Sharia in Sudan,” 636. Warburg quotes a treatise of Ṣādiq al-Mahdī, “AlIslām wa-masʾalat janūb al-Sūdān” [Islam and the South Sudan problem] (Omdurman, 1985). Ali Bob, “Islam, the State and Politics in the Sudan,” Northeast African Studies 12, nos. 2–3 (1990), 215. On Ṣādiq al-Mahdī’s ideas on the possibility of applying Islamic penal law, see Bleuchot, “Islam, droit pénal et politique.”

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was “foreign-inspired.”201 In general, al-Mahdī’s coalition governments were plagued by rivalries between the coalition partners, corruption, and instability. In May 1987, his first government collapsed, unable to agree on badly needed solutions and devoid of strong leadership, which al-Mahdī could not provide. The successor coalition government which was formed with the Democratic Unionist Party and some smaller Khartoum-based Southern parties, proved no more stable and fell apart after three months, mainly because of the seemingly insurmountable rivalry between the Umma Party and the Democratic Unionist Party.202 The political situation continued in a state of limbo between August 1987 and May 1988. The Umma Party and the Democratic Unionist Party could not agree on the formation of a new government. Both parties rejected any action to dissolve parliament and hold new elections. Instead, ministers simply continued to function in their posts. While the Ba’ath and other left wing parties, as well as the Southern parties, strongly opposed any cooperation in a government that included the National Islamic Front, the National Islamic Front strove with equal fervor to exclude its opponents from being part of the formation of a new government. Finally, in May 1988, the National Islamic Front joined the third coalition government, called the “national unity government,” that consisted of the Umma Party and the Democratic Unionist Party. One of the preconditions for joining the government was agreeing to enact new Islamic legislation within two months. Under the guidance of Ḥasan al-Turābī, who became minister of justice and attorney general, in September 1988 the ministry of justice submitted to the council of ministers a draft penal code, which was meant to replace the September laws. Hammered out by jurists led by the National Islamic Front, that is, most likely by al-Turābī himself, the draft suppressed to a large degree the politically motivated stipulations of the Penal Code of 1983. The South was to be exempted from ḥadd punishments. A dual system was to be introduced in the sense that the location of the commission of the crime (North or South), rather than the identity of the perpetrator (e.g., Southerner, non-Muslim, Muslim, etc.), would be decisive in determining penalties. Highway robbery, thus, was to be punished with cross-amputation in the North and with a maximum prison sentence of ten years in the South. On the other hand, non-Muslim Southerners living in Khartoum would be subject to the sharīʿa, while Muslims living in the South could enjoy alcoholic drinks or even become apostates, at

201 202

Bob, “Islam, the State,” 215. Salih, “The Sudan 1985–9,” 51–53.

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least according to a literal interpretation of the law.203 The new criminal bill met considerable resistance. The Sudan People’s Liberation Army completely rejected the dual system, as did all other Southern parties, the Sudan Communist Party, other left wing parties, and the National Salvation Alliance. They all demanded the complete abolition of the sharīʿa and the introduction of secular legislation. The Sudanese Bar Association also rejected the criminal bill, arguing that it would reinforce separatism.204 Even the Umma Party and the Democratic Unionist Party, though some of their members had been part of the drafting committee, called for a revision of the draft. Both parties were unclear with regard to the sharīʿa. Though their majority was in favor of Islamic law, the Umma Party remained strangely undecided when it came to taking decisive steps to introduce it. The liberal wing of the Democratic Unionist Party increasingly concluded that a peaceful end to the civil war would require a return to an autonomous South and a recognition of the multi-ethnic and multi-religious character of the country, and this would happen through secular unified legislation. This new approach led to successful negotiations with the Sudan People’s Liberation Army, conducted by Muḥammad ʿUthmān al-Mirghanī in Addis Ababa, and ultimately, in November 1988, it led to a cease-fire. At this point the war had reached a stalemate. It had become clear that neither side was strong enough to win by military means, even though at the end of 1987 the Sudan People’s Liberation Army had managed to advance for the first time into northern territory.205 Unlike Ṣādiq al-Mahdī in earlier negotiations, al-Mirghanī had agreed to suspend the sharīʿa (one of the main preconditions for a settlement of the conflict) and to exclude any call for its implementation from the government’s agenda.206 Placated, the Sudan People’s Liberation Army agreed to the convocation of a ‘national constitutional conference’ to deliberate on a new constitution and a new penal code that would be acceptable to the non-Muslim Southern minority. However, Prime Minister Ṣādiq al-Mahdī did not want to give the credit for ending the civil war to his political rivals. He sided with the National Islamic Front and deliberately sabotaged the Democratic Unionist Party/Sudan People’s Liberation Army peace initiative. In protest against his tactics, the Democratic Unionist Party left the government coalition. The new government was formed in January 1989 with the Umma Party and the National Islamic Front as the sole remaining coalition partners; al-Turābī became foreign minister and another National Islamic Front member headed the crucial 203 204 205 206

Köndgen, Das Islamisierte, 70–71. Salih, “The Sudan 1985–9,” 63. Ibid., 67. Warburg, “The Sharia in Sudan,” 635.

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ministry of justice. Before the government could decide on a new Islamic penal code, an alliance of labor unions, professional associations, and army officers issued an ultimatum, demanding the ratification of the Democratic Unionist Party/Sudan People’s Liberation Army peace agreement and the formation of a new government of national unity. The peace agreement with the Sudan People’s Liberation Army was finally ratified in April 1989, only after Ṣādiq alMahdī had formed a new cabinet to replace the National Islamic Front with the Democratic Unionist Party and representatives of the labor unions and professional associations. The tides had now turned in favor of a revocation of the Islamized penal code. In mid-June 1989, the al-Mahdī government announced that by 1 July Numayrī’s draconian penal laws would, at last, be nullified and a government delegation would meet Sudan People’s Liberation Army representatives to discuss a permanent end to the civil war. However, one day before the cancellation of the controversial September laws, the military intervened once more and ended another—rather short—era of civilian rule. The draft Criminal Bill of 1988 was resuscitated less than two years later when it was enacted, with only minor changes, as the Criminal Act of 1991.207 In summary, the democratic interlude of 1986–1989 under Prime Minister Ṣādiq al-Mahdī showed clearly that the political elite, at least those leaders and parties who took part in government formation, were unable to resolve the Sudan’s most pressing problems.

A Regime with an Agenda: al-Bashīr and al-Turābī Take Over (1989–) After the bloodless coup d’état led by Brigadier ʿUmar al-Bashīr, the Revolutionary Command Council (rcc) for National Salvation was formed. The National Assembly was dissolved and all political parties were outlawed.208 The transi-

207 208

The origins of the Criminal Act of 1991 seem to be forgotten in the Sudan; many of my interview partners were not aware that the “Criminal Bill of 1988” was the original text. Around fifteen of the outlawed political parties founded the National Democratic Alliance in order to organize their opposition to the new regime from abroad; they mainly operated from Cairo and Asmara. Among other laws and projects to write a new constitution, the National Democratic Alliance published their own version of a new penal code in Cairo in 2001. This code, while maintaining the death penalty, did not contain ḥadd or qiṣāṣ punishments. See al-Tajammuʿ al-waṭanī l-dīmūqrāṭī: mashrūʿ dustūr wa qawānīn al-fatra al-intiqāliyya (Cairo, 2001). Amin and Ramadan describe the Sudan Bar Association’s 1986 project to write a new penal code. While I was not able to acquire the full text of this

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tional constitution of 1985, which stipulated that the South was to be governed according to the Addis Ababa agreement, was revoked and a state of emergency declared. Even though al-Turābī, like other religious leaders and members of the former government, was detained after the coup, it later became clear that the coup was in fact staged with the active support of the National Islamic Front. There is no doubt that al-Turābī colluded with the fifteen middle- and lower-ranking officers who had staged the coup. As to the motives of the coup, several observations can be made. Most importantly, taking power in the Sudan by whatever means available had been the goal of the Muslim Brotherhood since al-Turābī won the upper hand in internal power struggles in the late 1960s. The Muslim Brotherhood was part and parcel of several attempts to depose President Numayrī; in 1972, they founded a secret organization (alniẓām al-sirrī) whose members received training in camps in the Sudan. This training included military, security, propaganda, and intelligence matters.209 In addition to its underground activities, the Muslim Brotherhood, based on the extreme flexibility and pragmatism of al-Turābī’s approach, showed no qualms in using any means necessary to further their cause. When all the coups against Numayrī’s rule failed, the Muslim Brotherhood agreed to join the “national reconciliation” process. Thus, they collaborated with a regime they had fought for eight years and accepted the posts that were given to them. During the Sudan’s third democratic interlude, the National Islamic Front’s approach was equally pragmatic. They agreed to alliances with their sectarian rivals when they thought it was conducive to their Islamist agenda and they refused such alliances when their agenda was not accepted by these rivals. With regard to democracy as a political system, the National Islamic Front was willing to make use of the possibilities of free speech and propaganda, however, they did not show any deeper commitment to democracy as such. Al-Turābī and the National Islamic Front knew that if democratic rules were applied, their chances of governing the Sudan were extremely small. Their explanations and justifications after the coup confirmed this.

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project, the description Amin and Ramadan give suggests that the National Democratic Alliance project (published in 2001) is very similar or identical to the 1986 project of the Sudan Bar Association. Compare Hosni Amin and Kamal Ramadan, “Sudan Criminal Law,” in Mahgoub el-Tigani Mahmoud (ed.), Sudan Law and International Human Rights Norms: Comparative Research (Lewiston, Queenston, Lampeter: Edwin Mellen Press, 2002), 341– 345. Warburg, Islam, 207.

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Thus, al-Turābī defended the National Islamic Front’s alliance with the military and the way it came to power by means of a military coup, as they saw it as the only way to establish an Islamic state in the Sudan and to finish sectarianism, “a multi-party system in the Sudan would not be democratic because political parties or a government governed by the House of Khatmiyya and the House of the Mahdi was a dynastic thing,” al-Turābī stated.210 While al-Turābī and the National Islamic Front were not demanding with regard to how they gained power, the particular timing of the coup d’ état was probably triggered by two events: Muḥammad ʿUthmān al-Mirghanī’s draft agreement with the Sudan People’s Liberation Movement and Ṣādiq al-Mahdī’s decision to abolish the September laws by 1 July 1989, without replacing them with new Islamist legislation. The National Islamic Front believed that its political influence and any chance of establishing an Islamic state would be severely diminished if a peace treaty were realized. On both accounts, the National Islamic Front was unwilling to make compromises; consequently, its Southern “jihad policy” (see below) only succeeded in distancing the country from a settlement of the conflict, without ever coming close to winning the South militarily. Building New Structures, Dismantling Old Ones Once firmly entrenched, the al-Bashīr/National Islamic Front regime followed a systematic approach to transform all relevant Sudanese institutions and effectively turned them into National Islamic Front bastions. The judiciary especially was a prime target for the realization of the National Islamic Front’s Islamization program. Because it was no more pliant than the judiciary under Numayrī, the regime opted for large-scale personnel changes to gain control of the judicial apparatus. According to estimates, “over sixty percent of all judges were replaced by appointees of the new regime.”211 Between 1989 and 1991 alone approximately 300 to 400 judges were dismissed or resigned.212 Their replacements often lacked proper training in sharīʿa and fiqh beyond personal status matters, or they were not qualified at all. While purging the traditional judiciary, the al-Bashīr/National Islamic Front regime simultaneously built a parallel system of courts that consisted of ‘Security of the Revolution Courts’ (later renamed ‘Emergency Courts’) and Public Order Courts (see below). One observer concluded that “[t]he parallel judicial institutions created by the nif 210 211 212

Ibid., 210. L.J. Lauro and P.A. Samuelson, “Toward Pluralism in Sudan: A Traditionalist Approach,” Harvard International Law Journal 37, no. 1 (1996), 86. Amnesty International, Sudan: “The Tears of Orphans” No Future without Human Rights (London: Amnesty International Publications, 1995), 20.

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now handle more than 95% of the caseload of the Sudan, and are under the absolute control of the executive branch.”213 This estimate obviously does not take into account the high number of cases tried under customary law. While Southern law students not trained in Arabic were, in practice, excluded from the legal professions, those who did enter the field were often trained in newly founded law schools that concentrated on the sharīʿa and neglected Sudanese common-law traditions. Many Southern judges were transferred to the North to hold minor positions or left the judiciary to avoid dismissal. National Islamic Front adherents were appointed in their place to guarantee the application of Islamic law wherever non-military courts in the South were allowed to function.214 According to some observers, many of the female judges who held positions in the civil courts and in the sharīʿa-governed personal status courts were dismissed by the new regime or given only insignificant assignments.215 A 1996 report from the Lawyers Committee for Human Rights indicates that until the mid-1990s the al-Bashīr/National Islamic Front regime did not appoint Southern or female judges.216 The regime also ensured that any opposition from the legal profession was muted. Thus, the Sudanese Bar Association was dissolved after the coup and later “downgraded to a trade union subject to the controls of the Registrar of Trade Unions and the Minister of Labor.”217 Concomitantly, the bar association lost some of its traditional immunities, such as the inviolability of a lawyer’s files in his chambers. Not surprisingly, the al-Bashīr/National Islamic Front regime also promulgated important legislation to further its strategic goal to Islamize Sudanese society. As of early 1991, an overhauled, Islamized penal code was promulgated and implemented.218 The new Criminal Act of 1991 was in fact the Criminal Bill of 1988, resuscitated and with only a few changes. It contained the full range of

213 214 215 216

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Adam M. Abdelmoula, “The ‘Fundamentalist’ Agenda for Human Rights: The Sudan and Algeria,” Arab Studies Quarterly 18, no. 1 (1996), 17. Lauro and Samuelson, “Toward Pluralism,” 86. Ibid., 86–87. This information was confirmed in an interview with a lawyer at the Institute of Training and Legal Reform in Khartoum on 8 June 2004. However, according to the same source, three women were shortlisted for positions as judges in June 2004. During my second visit, in 2009, women were working at the Supreme Court, among them the prolific author and commentator on Islamic criminal law, Badriyya Hassuna. Lawyers Committee for Human Rights, Beset by Contradictions: Islamization, Legal Reform, and Human Rights in Sudan (New York and Washington, dc: Lawyers Committee for Human Rights, 1996), 37–38. Bleuchot, Les Cultures, 423–427.

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ḥadd offenses and punishments and included, for the first time in the history of Sudanese law, punishments for apostasy. In the same year, also for the first time, personal status law was codified in a Muslim Personal Law Act.219 Other important legislative initiatives include the Public Order Act of 1996 (later the Security of the Society Law), the constitution of 1998, and the Political Associations Act of 1998. It must be noted that some of the September laws with a bearing on criminal law, such as the Basic Rules of Judgment Act and most of the criminal circulars remain in force as of 2016. With regard to the Criminal Act of 1991, Sidahmed concludes that it “appeared to have the potential of subjecting the society to even harsher sanctions than the ones endured during Nimeiri’s shariʿa experiment.”220 This assessment, however, seems to be unjustified. While it is certainly true that there is a potential for harsh sanctions, the new penal code abolished not only part of the politically motivated crimes and punishments of the Penal Code of 1983, but also most of the articles that combined ḥadd punishments with non-ḥadd crimes. Further, Sidahmed concedes that the de facto application of the new code was “lenient … ever since its coming to force in March 1991, there were hardly any reports of stoning, amputation or crucifixion.”221 Some Remarks on al-Turābī’s Ideas and Influence on Modern Islamic (Penal) Law It has been argued that the September laws “were profoundly influenced by al-Turābī’s ideas on Islamic law and methodology”222 and that the Basic Rules of Judgment Act of 1983—also part of the September laws—was written by al-Turābī.223 It is of course possible that the three-member committee that drafted the penal code, or rather injected some fiqh-based provisions into 219

220 221 222

223

On the 1991 codified family law, see Mohamed H. Fadlalla Ali, Das Islamische Ehe- und Kindschaftsrecht im Sudan: mit Hinweisen zu den Lehren der Islamischen Rechtsschulen, der anwendbaren Familienrechtsvorschriften für Nicht-Muslime im Sudan und im deutschen Familienrecht (Frankfurt a.M.: Peter Lang, 2001), 29; Abdullahi Ahmad al-Naʿim (ed.), Islamic Family Law in a Changing World: A Global Resource Book (London and New York: Zed Books, 2002), 83. Abdel-Salam Sidahmed, Politics and Islam in Contemporary Sudan (Richmond: Curzon Press, 1997), 220. Ibid. Aharon Layish, “Ḥasan Al-Turābī (1932–),” in Oussama Arabi, David S. Powers, and Susan Spectorsky (eds.), Islamic Legal Thought: A Compendium of Muslim Jurists (Leiden and Boston: Brill, 2013), 515. Ibid., 530. As to the similarity between al-Turābī’s methodology and the Basic Rules of Judgment Act of 1983 see also Layish and Warburg, The Reinstatement, 94.

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the existing Penal Code of 1974, was aware of al-Turābī’s ideas of legal reform methodology. Al-Turābī himself claims that the group who prepared the new laws had been “… his graduate students at the Law Faculty.”224 At any rate, it is difficult to trace the botched result of the hasty 1983 draft back to al-Turābī’s ideas on how modern Islamic law should be drafted and by whom. Even if we assume that the three young lawyers indeed had a thorough understanding of al-Turābī’s methodology from their studies at the law faculty of the University of Khartoum, the short time they were given to draft the laws was by no means enough for them to implement al-Turābī’s methodology in a thorough and systematic way. With regard to the Criminal Act of 1991, the situation is much clearer. AlTurābī is either the author of the Criminal Bill of 1988 or at least had, in his capacity as minister of justice at the time, a decisive influence on its drafting and, after some minor corrections, on the final version that was enacted in 1991 under the auspices of the ministry of justice. Al-Turābī himself claimed that he did not have a leading role in the drafting process.225 This, however, seems unlikely, especially in view of the fact that the Criminal Act of 1991 was drafted and enacted when al-Turābī was minister of justice and therefore in full control of the process.226 If he had been overruled in 1988, he could easily have implemented his plans in 1991. The codes are, however, largely identical. Given al-Turābī’s authorship of, or at least decisive influence on the drafting of the Criminal Act of 1991, it is clear that its content, the particular legal solutions it contains, and the specific relationship between the Criminal Act of 1991 and its accompanying procedural law can be better understood by analyzing al-Turābī’s influence on the content of the code. To what degree did his legal methodology leave its mark on the Criminal Act of 1991? Have his well publicized reformist ideas, his “theology of modernity”227 found their way into the Criminal Act of 1991 (and the Criminal Procedure Act of 1991)? In other words, did al-Turābī translate his theoretical positions into positive law when he was in a unique position of power and able to do so? Before analyzing al-Turābī’s methodology and its impact on legal policies, it is important to remember that al-Turābī received his academic education in the West. His formal academic background was profoundly secular; he was 224 225 226 227

Layish and Warburg, The Reinstatement, 91. Interview with Ḥasan al-Turābī, 13 May 2009. Compare Christian Delmet, “Chronique Soudanaise 1985–1989,” in Marc Lavergne, Le Soudan contemporain (Paris: Karthala—cermoc, 1989), 299. Abdullahi Ali Ibrahim, “A Theology of Modernity: Hasan al-Turabi and Islamic Renewal in Sudan,” Africa Today 46, nos. 3–4 (1999): 195–222.

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not an ʿālim in the traditional sense, as Layish rightly points out.228 However, al-Turābī’s father was a qāḍī in the sharīʿa division of the Sudan judiciary and thus, his home education “could have qualified him to be one of the ʿulamāʾ like his father, if he had not gone to state school.”229 Thus, on the one hand his family background explains his profound knowledge of Islamic legal matters, while his lack of a formal education in fiqh, in combination with his law studies in France and the United Kingdom facilitated his ability to think beyond traditional parameters. Indeed, al-Turābī’s proposals for a renewed legal methodology, while lacking precision and, at times, coherence, in large part transcend traditional uṣūl al-fiqh.230 Al-Turābī’s methodology was an amalgam of traditional methods and modernist elements. One can identify at least two main poles in al-Turābī’s legal thinking: methodology (in particular, the specificities of the sources and the methods that can legitimately serve to determine modern Islamic law) and legitimacy (that is, the qualities of those who would have the mandate to do so). Thus, along with the four traditional sources and methods—Qurʾān, Sunna, ijmāʿ, and qiyās, al-Turābī suggested istiḥṣān,231 ḍarūra (necessity), and takhayyur (eclectic expedient). Al-Turābī sidelined the traditional ʿulamāʾ, whom he held responsible for the lack of progress in the Muslim world. Instead he called for the involvement of a different kind of ʿulamāʾ in the legislative process. These ʿulamāʾ, who should advise on new legislation, are not traditional ʿulamāʾ, but should be trained in the social and natural sciences and also be familiar with philosophy.232 There is, however, no indication that this happened, that ʿulamāʾ who qualified along the lines suggested by al-Turābī participated in the process of formulating the Criminal Bill of 1988 or the Criminal Act of 1991. This means that instead of a legislative process that included the participation of experts in Islamic law (i.e., the “new” ʿulamāʾ trained in the social and natural sciences), as far as we know, just one person, al-Turābī himself, was responsible for the rather intransparent draft-

228

229 230

231 232

On al-Turābī’s biography see also Peter Nyot Kok, “Hasan Abdallah al-Turabi (Ḥasan ʿAbdallāh al-Turābī),” Orient 33 (1992): 185–192; and Layish, “Ḥasan Al-Turābī (1932–),” 513– 514. Osman, “The Political and Ideological Development,” 449. This can be defined as “A discipline or a field of study [in Islamic jurisprudence] specializing in methods of interpretation and reasoning … with the aim of arriving at new legal norms for unprecedented cases or rationalizing existing ones.” Wael B. Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 177–178. “A discretionary opinion in breach of strict analogy for reason of public interest or convenience.” Layish and Warburg, The Reinstatement, 320. Layish, “Ḥasan Al-Turābī (1932–),” 526–529.

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ing process of the laws in question. It is noteworthy that not even al-Turābī fulfilled the conditions of legal expertise that he proposed were necessary. He was not an ʿālim, and as a jurist trained in western law, he did not have any background in the social and natural sciences. He believed that the backwardness caused by the traditional ʿulamāʾ can only be overcome by ijtihād, which, in turn, is a task for all Muslims who are able, and not a monopoly of the ʿulamāʾ. In fact, it is not even “a vocation of a specific group of people,” but can be exercised, at various levels, by all those who are knowledgeable, according to the knowledge they have.233 Al-Turābī advocated “maximum freedom for all those who want to contribute to the debate.”234 It would not be enough to go back to “dig out bits and pieces” of the “old books,” hoping that they would solve today’s problems. Instead a “revolution at the level of the principles of jurisprudence” was needed.235 As to the limits of ijtihād, he suggested that “everything can be reviewed” with the exception of the “eternal components of the divine message.”236 Even the authority of the founders of the four Sunnī schools was relative, because their views reflect the historical context in which they were developed. He held that the contemporary legislation and application of the sharīʿa should derive its authority from the state by way of an elected shūrā.237 The shūrā system, as seen by al-Turābī, is similar to a democratic system inasmuch as both allow people a decisive voice in matters of decision-making in public affairs. The fundamental difference between a system of shūrā and a democracy is that shūrā is based on the sovereignty of God, while a democracy derives its authority from the will of the people.238 But what this difference means, in practice, remains unclear. For al-Turābī, fiqh represents the forefathers’ quest for an understanding of religious truth. Since their endeavors can only be understood in their historical context, al-Turābī argued against the blind imitation of traditional Muslim

233 234 235 236 237

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Hamdi, The Making, 88–89. Abdelwahab El-Affendi, Turabi’s Revolution: Islam and Power in Sudan (London: Grey Seal, 1991), 171. Ibid. Ibid., 171–172. For al-Turābī’s legal methodology, see Layish, “Ḥasan Al-Turābī (1932–),” 518–532 and Knut Vikør, “The Sharīʿa and the Nation State: Who Can Codify the Divine Law?” in Bjørn Olav Utvik and Knut S. Vikør (eds.), The Middle East in a Globalized World: Papers from the Fourth Nordic Conference on Middle Eastern Studies, 1998 (Oslo: Nordic Society for Middle Eastern Studies (Bergen), 2000), 239. See also Hamdi, The Making, and El-Affendi, Turabi’s Revolution. El-Affendi, Turabi’s Revolution, 161.

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jurists ( fuqahāʾ) and for the adaptation of Islamic law to meet modern needs. He argued in favor of maximum freedom for those who want to contribute to the renewal of Islamic law, provided their deliberations are based on essential Islamic principles. Al-Turābī himself acted as a mujtahid and found new and unorthodox solutions for specific problems of Islamic criminal law. He tried to prove, with the help of Qurʾānic verses, that it is not obligatory to stone the zāniyya and that the death penalty for an apostate is only compulsory if he actively wages war against Muslims.239 During my interview with him, al-Turābī claimed that he had been opposed to including a (new) article making apostasy (ridda) punishable.240 This very provision was then confirmed in 1991 when alTurābī had the power to eliminate it. Al-Turābī did not stop, however, at mixing traditional tools and combining solutions and opinions from different schools; he also recommended using legal methodologies derived from western sources and supported by social and natural sciences. His emphasis on “international law as an essential part of the sharīʿa” is one area in which al-Turābī’s legal methodology left few traces in the Criminal Act of 1991.241 As I explain in chapter 12, there are important and profound contradictions between the Criminal Act of 1991 and the Sudan’s obligations according to the international human rights treaties it has acceded to. Further, al-Turābī advocated “Western social and comparative legal methods” as an integral part of the new Islamic methodology. He believed that modern Islamic legislation should rely on a “thorough knowledge of the social and natural sciences.”242 Given the rather conservative and fiqh-based approach of the Criminal Act of 1991, it is difficult to discern which legal methods were derived from western sources. Western social and comparative legal methods would suggest the abolishment of the death penalty, if not a priori, then certainly in its most brutal forms, such as stoning. Other cruel corporal punishments that are part and parcel of Sudanese Islamic criminal law, either in the statutes or in actual practice, are also diametrically opposed to western legal thinking as it stands today. Reliance on western legal methodology would also emphasize rehabilitation rather than brutal deterrence and revenge. Few of these approaches and modern penological ideas appear in the Criminal Act of 1991. In the case of ḥadd punishments, minors can be flogged (and thus traumatized for life), and apart from the presence of a supervising physician during amputations, we can detect little influence of the “natural sciences.” Since al-Turābī 239 240 241 242

Köndgen, Das Islamisierte, 47. Interview with Ḥasan al-Turābī, Khartoum, 13 May 2009. Layish, “Ḥasan Al-Turābī (1932–),” 525. Ibid.

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did not provide us with examples of what role (western) social and natural sciences might play in legislation,243 it remains unclear how they might be combined with statutory legislation that purports to be an expression of the divine will. Clearly, the content and methodology of al-Turābī’s reformist ideas in the field of Islamic law remained largely theoretical: his professed eclecticism was only very selectively translated into practice. We could argue that al-Turābī followed a two-pronged approach that included staying faithful to a selection of solutions based on traditional fiqh (and thus satisfying the hard-liners) while leaving the actual meaning of these solutions in the realm of symbolism. Excursus 1: The Public Order Laws and Islamist Control of Public and Private Behavior The Public Order Laws, as applied by the regime’s alternative court system (the Public Order Courts, and the Public Order Police) are laws that must be understood in conjunction with their interplay with parts of the Criminal Act of 1991.244 While each Public Order Law reflects particular local traditions, to some degree most of these laws share a certain number of common provisions. The Khartoum Public Order Act of 1996, applicable to approximately 7 million people in the capital of the Sudan, and the Public Order Law of 1999 of the Kassala governorate serve as examples of the ways in which Public Order Laws control human relations and behavior in the public and private spheres through penalization.245 In practice, the Public Order Law is enforced by the Public Order Police,246 a special police force attached to the Public Order

243 244 245

246

Ibid., 526. Especially part xv, “Offences of Honour, Reputation and Public Morality” and here in particular art. 152 on indecent and immoral acts. See the Public Order Laws of Khartoum and Kassala: Laws of the Governorate of Khartoum, governorate law no. 28, 1996 ce; Public Order Law, Khartoum Governorate, 1996; Public Order Law Kassala Governorate 1999. William Berridge, “The Ambiguous Role of the Popular, Society and Public Order Police in Sudan, 1983–2011,” Middle Eastern Studies 49, no. 4 (2013), 528–529, traces the beginnings of “morality policing” to the establishment of Popular Committees of Surveillance during the early days of the regime of al-Bashīr/al-Turābī. This was followed by the 1992 creation of the Public Order Police and finally, in 2002, by the establishment of the Security of the Society Police (shurṭa amn al-mujtamaʿ). See also Human Rights Watch, Behind the Red Line: Political Repression in Sudan (New York, Washington, London, Brussels: Human Rights Watch, 1996), 169–170. Berridge, to simplify the issue, uses the term Public Order units for all three of them, I use Public Order Police (pop) as a common name (which is still widely used in Khartoum).

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Courts and part of the Sudan Police Force.247 While it is under the authority of the director general of police, the Public Order Police also has strong ties to and takes directives from local authorities, such as the respective state governors or local “safety committees.” The Public Order Police has a reputation of applying physical violence and often targeting marginalized groups such as women, refugees, or particular ethnic groups. The so called “sweep and arrest” method—raids resulting in mass arrests, frequent physical assaults, and standard Public Order Law penalties such as fines and floggings—is a frequent modus operandi. Extortion and sexual abuse, including rape of (female) victims who are accused of Public Order Law offenses, seems to be widespread. Another essential institution of the enforcement of Public Order Laws are the Public Order Courts that were established in 1995 by the chief justice. The Public Order Courts are a parallel court system that exercises summary jurisdiction with few procedural safeguards and is generally governed by specific political objectives. Next to the Public Order Law, the Public Order Courts enforce a wide range of local laws and governor decrees ranging from taxation matters to price fixing and trading licenses. The Public Order Police has also been instrumental in removing unplanned housing areas and clamping down on magic healers (common in the rural areas of the Sudan).248 Procedures in the Public Order Courts are similar to those in military courts. Trials are swift, arrests and the imposition of punishments generally happen within 24 hours. The accused normally do not have access to legal assistance or aid and are not permitted to prepare a defense. Except for notes on the statements of witnesses, there are no written records of the proceedings. Punishments are carried out immediately, normally without any possibility of appeal.249 If the accused is not able to pay his fine, he is transferred to prison.

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The following sections on pop and poc follow the Strategic Initiative on Women in the Horn of Africa (siha), “Beyond Trousers: The Public Order Regime and the Human Rights of Women and Girls in Sudan,” A Discussion Paper (Submission to the 46th Ordinary Session of the African Commmission on Human and Peoples’ Rights, Banjul, Gambia, 12 November 2009). Berridge, “The Ambiguous Role,” 540. A redress report states that “Defendants … may also be anxious to minimise the societal fallout of drawn-out legal proceedings over charges of ‘indecent’ behaviour. As a result, their willingness and ability to defend themselves is seriously undermined and many defendants, following conviction, waive their right to appeal to put the experience behind them as quickly as possible.” In redress, No More Cracking of the Whip: Time to End Corporal Punishment in Sudan (London: Redress, 2012), 15.

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What do Public Order Laws look like, and what kind of behavior do they penalize? For example, both the Public Order Laws of Khartoum and that of Kassala stipulate that for parties with music—both private and public— permission from local authorities (that is, the Public Order Police) must be obtained.250 Several restrictions are imposed. The party must end at 11 pm,251 dancing between men and women is not allowed, and “women shall not dance in front of men.”252 Further, “shooting”253 and “the singing of trivial songs”254 are prohibited. Both laws give the police the right to take whatever measures it sees fit in order to stop the infraction, including the termination of the party. Both laws outlaw “parties with music, cinema and theatre shows, exhibitions and similar events on Fridays between 12:00 am and 2 pm.”255 Given the great ethnic diversity of the Sudan and of Khartoum in particular, the section on parties with music is rather problematic. Especially as the massive influx of refugees from the South has made the Sudanese capital of Khartoum a microcosm of the Sudan, with most of its tribes represented there. Mixed dancing is part of the beliefs and heritage of the Southerners and banning it amounts to outright discrimination. Mixed dancing has also been common among Muslims in the North and they are thus just as affected by the law as are Southerners.256 It has also been noted that the power of the Public Order Police to stop parties with music after 11pm is not in harmony with Sudanese custom. “It is one of the character traits of the Sudanese that the quarter joins in celebrations and mourning and during the past years we have not witnessed resistance against long parties lasting until morning.”257 The same author also pointed out that the Public Order Police were given the right to intervene, notwithstanding the fact that there might not be a claimant or a damaged third party.258

250 251 252 253 254 255 256

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Public Order Law, Khartoum, art. 5. Public Order Law, Khartoum, art. 7a / Public Order Law, Kassala, art. 8a. Public Order Law, Khartoum, art. 7b. Public Order Law, Khartoum, art. 7c. Public Order Law, Khartoum, art. 7d. Public Order Law, Khartoum, art. 8/Public Order Law, Kassala, art. 9. As a guest at a party hosted by Muslim Northerners in Omdurman in the summer of 2004, I observed that part of the law was not observed. The music did indeed stop at 11:00pm and no alcohol was consumed; however, after a timid beginning with men dancing by themselves (as is indeed allowed by the Public Order Law, Khartoum), women and children soon joined. Jalāl al-Dīn al-Sayyid, “Qānūn al-niẓām al-ʿāmm li-wilāyat al-Kharṭūm,” in Qaḍāyā tashrīʿīyya wa- qānūniyya (Khartoum: Friedrich Ebert Stiftung, 2002), 134. Ibid., 135.

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Both the laws of Khartoum and Kassala also regulate gender separation on public transport. The Public Order Law of Khartoum specifies: Each public bus used for public transportation within the state shall specify a door to be used by women and reserve ten seats for women,259 … men shall not sit in the seats reserved for women, neither shall women sit in the seats reserved for men,260 … writing any expression, or sticking any picture or sketches that contradicts religion, morals and good taste is prohibited on public transportation.261 Kassala outlaws the same misdemeanors, and in addition it prohibits the playing of “tapes of obscene songs”262 in “public transport and public places.”263 “The shading [of the windows, i.e., tinted glass] of public and private vehicles is forbidden, unless a written permit has been issued by the minister of interior or his deputy.”264 Further, “twenty-five percent of the total seats in public transportation … shall be reserved for women.”265 As to gender segregation in hair salons and tailors, the Public Order Law stipulates that “no person shall practice the profession of (women) hair dressing unless a license is obtained from the competent peoples committee and after obtaining the required recommendation issued by the competent people’s authority committee.”266 In Khartoum the law states that “Men may not be employed in a women’s hair-

259 260

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263 264 265 266

Public Order Law, Khartoum, art. 9 (1) a. Public Order Law, Khartoum, art. 9 (1) b. During visits to Khartoum in 2004 and 2009 I observed that gender segregation in public buses was not enforced. Reserving a door for women is not possible in the widely-used minibuses, since they have only one (sliding) door. Nor do the personnel operating these buses pay attention to gender separation. Instead, new passengers first fill seats farthest from the door. Public Order Law, Khartoum, art. 9 (1) c. Obscene songs (aghānī hābiṭa) are defined under chapter 1 as, “… songs using words or expressions contradicting faith or morality or good manners and the general taste and sound sentiment, whether accompanied by music or not.” Public Order Law, Khartoum, art. 4g. Public Order Law, Kassala, art. 10 (1). Public Order Law, Khartoum, art. 9 (1) d. Public Order Law, Khartoum, art. 9 (2). Public Order Law, Khartoum, art. 13 a. Even though the title of the law refers to “women’s hair dressing businesses,” the first article talks about “hair dressing businesses” in general, without specifying whether this provision includes men’s hairdressing businesses as well. Public Order Law, Kassala, art. 13 does define “women’s hair dressing businesses” only.

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dressing business.”267 Kassala is less strict; the same rule applies, but, by way of exception, men may carry out “administrative or technical tasks,”268 but in both governorates men “may not enter a women’s hairdressing business.”269 The Public Order Law of Kassala does not explain how men could carry out administrative or technical tasks without entering the premises. To ensure that men and women alike cannot claim ignorance of these regulations, “a sign explaining the provisions of this subsection must be placed in a visible place.”270 The Public Order Law of Khartoum allows for “men [to] own (women’s) hairdressing businesses,”271 but “… to grant a license … the business must be managed by women.”272 Owners and managers of hairdresser’s businesses must be sure of their employee’s “righteousness and good reputation,”273 and “the manager must not be less than thirty-five years of age.”274 There is no age limit specified for owners of women’s hairdressing businesses. Since the owner often is also the manager, a woman who has not reached thirtyfive might not be able to manage her own business. The licensing authority and the Public Order Police have the right to enter any hairdressing business at any time, in order to inspect it and ensure that it is compliant with the law, provided that the inspection is carried out by women.275 The Public Order Police, however, does not have female squads to carry out these kinds of inspections. In general, male Public Order Police in full gear raid businesses in question in order to check on the compliance with Public Order Law regulations.276 It is forbidden to establish a tailor’s business without a license from the local authorities277 who “prescribe the regulations … [with] regard to the public morality of the employees and the business.”278 Other regulations pertinent to public morals or religion specify that queues before (public) authorities must separate men and women.279 “Imposture, fraud, magic and Zaar are prohib267 268 269 270 271 272 273 274 275 276 277 278 279

Public Order Law, Khartoum, art. 14 a. Public Order Law, Kassala, art. 14 (1). Public Order Law, Khartoum, art. 14 b, Public Order Law, Kassala, art. 14 (2). Public Order Law, Khartoum, art. 14 c. Public Order Law, Khartoum, art. 15 (1). Public Order Law, Khartoum, art. 15 (2). Public Order Law, Khartoum, art. 16 (a), Public Order Law, Kassala, art. 14 (6). Public Order Law, Khartoum, art. 16 (c). Public Order Law, Khartoum, art. 17. Public Order Law, Kassala, art. 15, as a reference for this provision, mentions the Law of Criminal Procedure. See al-Sayyid, “Qānūn al-niẓām,” 137. Public Order Law, Khartoum, art. 18 (a), Public Order Law, Kassala, art. 16 (1). Public Order Law, Khartoum, art. 18 (b), Public Order Law, Kassala, art. 16 (2). Public Order Law, Khartoum, art. 20. In a similar sense, Public Order Law, Kassala, art. 19.

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ited,280 … bathing naked in the Nile is prohibited,”281 as is the selling of food and drink by restaurants or cafeterias during the day during Ramadan.282 The Public Order Law in Kassala also regulates a variety of other issues, for example, commercial enterprises are not allowed to operate on Fridays during the time of the congregational prayer from 12:00pm to 1:30 pm.283 Commercial licenses or their renewals cannot be issued if the name of a company is contrary to faith, values, and customs.284 In addition to hairdressing and tailor’s businesses, the Kassala Public Order Law also regulates gender separation in telephone parlors. Female employees are not allowed to work in them, unless they have been registered with the authorities and their righteousness and good reputations have been confirmed.285 As in the case of hairdressing businesses, telephone parlors are not allowed to have more than one entrance and exit, the entrances/exits must face a public street and cannot be covered by a curtain or tinted glass.286 Women selling food or drinks in public places are not allowed to do so between the sunset prayer and the morning prayer.287 Kassala also restricts smoking water pipes: the use of “shīsha” is forbidden in public places.288 Finally, Article 28 of the Public Order Law in Kassala refers to the Criminal Act of 1991: “The laws of the Criminal Act of 1991 will be applied to whoever attempts, participates in, abets or cooperates in the perpetration of any of the misdemeanors specified in this law.”289 The punishments stipulated in the Public Order Law for the above contraventions in Khartoum are severe, namely, (a) imprisonment for a term not exceeding five years, (b) a fine, (c) both of the above, (d) flogging, (e) forfeiture of any instrument used in such contravention, and (f) closure of the premises for a term not exceeding two years. Interestingly, although the Kassala Public Order Law is more restrictive and legislates more

280 281 282 283 284 285

286 287 288 289

Here, in addition to official authorities, every person (kullu shakhṣ) dealing with the public must separate men and women. Public Order Law, Khartoum, art. 22. Public Order Law, Kassala, art. 24. Public Order Law, Khartoum, art. 23 (a). Public Order Law, Khartoum, art. 24.; Public Order Law, Kassala, art. 20. Public Order Law, Kassala, art. 17. Public Order Law, Kassala, art. 21. Public Order Law, Kassala, art. 23 (1). Note that in this context, good reputation is explicitly mentioned, while the Evidence Act of 1993 does not stipulate it as a precondition for giving testimony in ḥadd cases (the exception is in cases of zinā). Public Order Law, Kassala, art. 23 (2). Public Order Law, Kassala, art. 22. Public Order Law, Kassala, art. 26. Public Order Law, Kassala, art. 28.

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misdemeanors, it is more lenient with regard to punishments. Thus, the Kassala Public Order Law contents itself with imprisonment of not more than a month and limits the possible range of the fine to 5,000 dinars.290 Since both laws allow for the combination of both punishments (imprisonment and fine), the Khartoum Public Order Law would appear to be especially harsh in comparison with its counterpart in Kassala: an unspecified fine in combination with imprisonment of up to five years in Khartoum and a maximum of one month in prison in combination with a maximum of 5,000 dinars in Kassala. Moreover, the Khartoum Public Order Law does provide for flogging, while the Kassala Public Order Law does not. Public order legislation exists in most countries and is normally meant to ensure public security, general order, and to create an atmosphere that respects rights in public life.291 From the above it has become clear that the Public Order regime as applied in the Sudan is rather different from that of other countries. The methods of control and criminalization of the private and public spheres were clearly designed by the military Islamist regime that came to power in 1989. Observers have correctly pointed out that the application of the Public Order Law in the Sudan is driven by an ideological agenda that views the presence of women in public life, especially working women, and in private life as a potential source of problems. Further, the laws presume that men and women are not able to behave appropriately according to the standards of morality required by the authorities. Social relations, in private but especially in public therefore must be supervised, controlled, and disciplined. Women especially are seen as a particular threat to public morality. Therefore, the Public Order Laws enforce gender segregation wherever possible, at least in theory. Such gender segregation comes along with a number of restrictions on businesswomen and working women. In combination with the frequent “sweep and arrest” raids by Public Order Police on women who conduct businesses such as selling tea or marissa (a traditional drink brewed from dates and sorghum), the Islamist regime has created a situation in which certain business or professional activities are potentially criminalized. While women, often if not predominantly of Southern origin, are clearly the main targets of the Public Order Laws, men, also non-Muslims from the South living in the shanty towns around Khartoum, are victims of the harsh application of Public Order Laws as well. Berridge, in his study of the Public Order Police, makes a number of important points. The ongoing enforcement of the Public Order Law by the Public Order Police is a strong argument against the “notion that Sudan’s regime is ‘post-Islamist’ 290 291

Approximately 14.5 Euros (December 2004). Strategic Initiative on Women in the Horn of Africa (siha), “Beyond Trousers,” 6–7.

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and has abandoned its attempts to transform the moral habits of Sudanese society.”292 Further, he has shown how the practices of the Public Order Law, often publicized in the media and online, has generated a controversial debate between the security apparatus, intellectuals, the Islamist movement, and government circles. While some feel embarrassed and began considering the Public Order Law a liability, especially in the wake of the Lubna al-Ḥusayn and the Youtube flogging cases, President al-Bashīr was not willing to allow an investigation into police misconduct or any questioning of the existence of the laws. Lubna Hussein’s pardon by presidential decree, while short of an abolishment of the laws, shows, however, that international media attention was able to embarrass the Sudanese government to a significant degree.293 We do not have sufficient documentation and statistics to know the number of cases adjudicated according to the Public Order Law.294 However, it can be safely assumed that the various components of the Public Order regime have acquainted more Sudanese with the precepts of the Islamized justice system than regular courts have. The Split of the Islamist Camp and the End of the Revolutionary Phase The years from 1998 to 2000 saw the escalation of a power struggle between President al-Bashīr and al-Turābī, the hitherto ideological and strategic mastermind of the regime. Their rivalry had been simmering for some time and al-Bashīr eventually prevailed. It marked the end of the first, revolutionary, phase of the military-Islamist regime. Other observers have called the end of the al-Bashīr/al-Turābī alliance “the end of an Islamist experiment”295 or the end of the “First Islamist Republic.”296 For many years al-Bashīr had been in the shadow of the Islamist thinker and strategist, intellectual and Machiavellian politician, such that he was portrayed by the press as a “faithful and obedient ally”297 of Ḥasan al-Turābī. Al-Bashīr himself had contributed to al-Turābī’s per-

292 293 294 295 296 297

Berridge, “The Ambiguous Role,” 542. Ibid., 539. Ibid., 535, quotes the Umma Party politician Mariam al-Mahdi who claims that in 2010 alone 40,000 women were convicted and given 40 lashes each by Public Order Courts. J.M. Burr and R.O. Collins, Revolutionary Sudan: Hasan al-Turabi and the Islamist State, 1989–2000 (Leiden and Boston: Brill, 2003), 253. Abdullahi Gallab, The First Islamist Republic: Development and Disintegration of Islamism in the Sudan (Aldershot: Ashgate, 2008), 129. Stefano Belluci, “Islam and Democracy: The 1999 Palace Coup in the Sudan,” Middle East Policy 7, no. 3 (2000), 170.

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sonality cult by praising his place in Islamic history and his contributions to the development of an Islamic state.298 For years al-Bashīr tolerated al-Turābī’s insults, his maneuvers to discredit al-Bashīr, and his annulments of al-Bashīr’s decisions.299 Ultimately, however, the relationship between al-Bashīr and alTurābī was functional; they used each other and saw one another as a “temporary evil.”300 While al-Turābī was influential in the National Assembly and in institutions dominated by the National Islamic Front, al-Bashīr not only had the army behind him but also began to use his presidential prerogatives to outmaneuver al-Turābī and eliminate him from the political scene. In a prelude to the coming showdown, al-Bashīr used a cabinet reshuffle in March 1998 to promote National Islamic Front stalwarts to the ranks of minister. Those chosen were disillusioned with al-Turābī and loyal to al-Bashīr.301 In June 1998 the new constitution, drafted by a presidential committee, came into force. It was approved by a national referendum and strengthened the position of the president considerably. In May 1999, al-Turābī negotiated a secret alliance with Ṣādiq al-Mahdī in Geneva to prepare for a regime change toward a National Islamic Front/Anṣār coalition, and simultaneously engaged in plans to get rid of alBashīr and the military. To this end, al-Turābī, as speaker of the National Assembly, put forth a motion suggesting the creation of the position of prime minister, to effectively reduce al-Bashīr to a mere figurehead without any real power. When al-Bashīr asked the parliament to postpone the discussion of the motion, he was harshly rebuffed by al-Turābī. Being in no doubt about the imminent threat to his regime, al-Bashīr swiftly dissolved the National Assembly, imposed a state of emergency, and scheduled new elections for the National Assembly in December 2000. In January 2000, the dismantling of al-Turābī’s power base was taken a step further when nine ministers who were close to al-Turābī were dismissed. In February 2000, al-Bashīr had the Popular Arab and Islamic Congress headquarters closed and its building confiscated.302 All reconciliation attempts failed, as did al-Turābī’s attempts to mobilize support from the military and security forces. First Vice President ʿAlī ʿUthmān Muḥammad Ṭāhā, who also supervised the internal security apparatus, changed allegiances and became loyal to al-Bashīr. Al-Bashīr’s popularity with the military was decisive in his 298 299 300 301 302

Gallab, The First Islamist Republic, 130. Ibid. Belluci, “Islam and Democracy,” 171. Burr and Collins, Revolutionary Sudan, 256. Ibid., 272–273. For a detailed history of the Popular Arab and Islamic Congress see Rafael Ortega Rodrigo, El Islam Político en Sudán. Una propuesta fallida de internacional islamista (Granada: Universidad de Granada, 2004).

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victory. Before the coup in 1989 the National Islamic Front had already begun to infiltrate its ranks and it continued these efforts with some success in the first decade of al-Bashīr’s rule. Al-Turābī’s efforts to create a substitute army with the Popular Defense Forces, one which was to gradually absorb the regular army, disenchanted many senior officers, who never trusted al-Turābī and Ṭāhā.303 Al-Turābī, however, did not easily accept defeat and instead found another, unlikely, ally. In February 2001, he hammered out a memorandum of understanding between his new party, the Popular National Congress, and John Garang’s Sudan People’s Liberation Army, the very same foe his Popular Defense Forces had fought against for many years, at a cost of many thousands of Sudanese youth. President al-Bashīr would not let himself be outmaneuvered. He forestalled the scheme, had al-Turābī and more than thirty senior Popular National Congress party officials arrested and held him in detention for two-and-a-half years, until his release in October 2003.304 The offices of the Popular National Congress and their newspaper were shut down and the remaining al-Turābī loyalists were purged from the government and security apparatus.305 At the end of March 2004, Ḥasan al-Turābī was arrested again, and remained in prison until June 2005.306 The elimination of the architect of the Sudan’s Islamization program of the 1990s did not, however, lead to a complete political realignment. Al-Bashīr has made it clear on numerous occasions that adherence to the sharīʿa was and will remain a pivotal element of the regime’s ideology. As of 2016, the Islamist statutes are still in force and applied (in the North, i.e., the Republic of the Sudan). The statement that the ‘Islamic experiment’ has come to an end seems, therefore, premature.307 In retrospect the consequences of the split between al-Bashīr and al-Turābī cannot be overestimated. Most importantly, the rift did not limit itself to these two leaders but extended to two factions of what was previously the al-Turābī camp. With the departure of the main thinker and strategist, those who decided to side with the intellectually rather colorless al-Bashīr are left without a charismatic leader to provide the Islamist project with meaning and direction. It is rather, as Gallab baptized it “Islamism without al-Turābī, authoritarianism without Nimairi.”308

303 304 305 306 307 308

Burr and Collins, Revolutionary Sudan, 271. See bbc News online, “Sudan Strongman al-Turabi Arrested,” 21 February 2001; See bbc News online, “Sudan Islamist Leader Released,” 13 October 2003. Gallab, The First Islamist Republic, 154–155. During my first visit to Khartoum in May 2004 I was therefore not able to interview alTurābī himself; I talked to his son Ṣiddīq instead. Burr and Collins, Revolutionary Sudan, 253–280. Gallab, The First Islamist Republic, 149.

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Second, the end of al-Turābī as a main player on the ruling side also meant the end of the radical phase of Sudan’s Islamist experiment. Al-Turābī’s style of jihād against the South, the Sudan’s backing of Islamist terrorism within and outside the Sudan, and the Popular Arab and Islamic Congress hosting radicals from all over the Muslim world have all disappeared along with their spiritus rector. Third, according to its own understanding, the al-Bashīr regime is still Islamist (and has not ceased to coerce Sudanese society into obedience with the help of its various security forces and a wide array of legislation). Fourth, and this is certainly the most momentous legacy of Islamist rule, the regime’s uncompromising policy that continued after 1999 has led directly to the independence of the South. The Islamist regime, like their predecessors, has not been able to win the war with the South by military means nor has it devised a sustainable compromise formula that would allow for a peaceful coexistence of the South and the North in a united Sudan. The regime’s high-handed, culturally and religiously supremacist attitude vis-à-vis the South has thus reached its unintended but unavoidable end. The question that arises is whether al-Turābī’s absence in the regime had any impact on the practice of Islamic criminal law. A number of observations can be made. As a pivotal part of the regime’s image and legitimacy, the Islamized Criminal Act of 1991 remained in place unchanged and unchallenged even after al-Turābī’s forced departure. The “end of the revolutionary phase” had little influence on the practice of jurisdiction at the Supreme Court level. Whether it had an impact on lower level courts awaits further investigation, as does the issue of the jurisdiction of lower courts and the appeal courts in general. Clearly, the most significant impact can be noted, as described above, in the reduced number of punishments based on the Public Order Law and the reduction or non-enforcement of other measures used to impose “Islamic morality.” To be sure, the two-pronged system, marked by the Criminal Act of 1991 with its cumbersome accompanying procedures and the parallel Public Order system stayed in place as such. The lower number of harsh sharīʿa punishments based on the Criminal Act of 1991 dates from the beginning of the military-Islamist regime and did not significantly change after 1999. Excursus 2: Islamist Constitution Making in 1998 and 2005 Constitution-making in the Sudan has been an ongoing endeavor since independence. “Transitional,” “permanent” or “interim” constitutions were drafted in turns. The rhythm and direction of the public discourse and the constitutionmaking process have been and continue to be a reflection of regime changes and the Sudan’s unstable national identity. This has not changed under the current military-Islamist regime, which has enacted two constitutions so far,

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one in 1998, which was not called “permanent” or “Islamic,” and the Interim National Constitution in 2005. After the independence of the South, the discussion of a new constitution, potentially an Islamized one, has gained momentum. The question of how Islamic (or how secular) the Sudan’s constitution should be has been at the heart of the battle between Islamists and their opponents since 1956. Interestingly, despite, or probably as a result of this discussion and the divergent views on the matter, none of the Sudan’s constitutions bore the epithet “Islamic”—not even the 1998 constitution. It is therefore instructive and worthwhile to take a closer look at what constitution-making looked like under military-Islamist rule. It should also be noted that the al-Bashīr government created new legal institutions: while hitherto constitutional conflicts were decided by the Supreme Court, in 1998, as an institutional underpinning to the new constitution, a constitutional court was established. It can be appealed to by “any aggrieved person for the protection of freedoms, sanctities and rights’ guaranteed in the constitution.”309 The Interim National Constitution of 2005 maintains the constitutional court whose president, a deputy, and five members are appointed by the president of the republic with the approval of two-thirds of the Council of States. Thus, the president can ensure a composition of the court favorable to his interests. Surprisingly, the 1998 constitution contains very little Islamic terminology, only 10 of 144 articles make direct reference to Islam. Many of the more delicate questions which were very controversial in earlier constitutional debates are not addressed in a way that satisfies Islamist hard-liners. Thus, for example, theoretically a non-Muslim could become president of the state and the rights of citizens are defined by nationality only and not by religion.310 The ambiguity of some articles was rather problematic, especially those pertaining to religion. Thus, Article 24 guarantees the freedom of religion to all Sudanese. However, this freedom is qualified: “This right shall be exercised in a manner that does not harm public order or the feelings of others, and in accordance with law.” Clearly, the wording is ambiguous and in combination with the Criminal Act of 1991 and the Public Order Law the regime still has the legal means at its disposal to punish unwanted religious expressions. Another case in point is Article 18, which states that

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I. Bantekas and H. Abu-Sabeib, “Reconciliation of Islamic Law with Constitutionalism: The Protection of Human Rights in Sudan’s New Constitution,” African Journal of International and Comparative Law 12 (2000), 543. Rüdiger Seesemann, “Der Sudan und die islamistische Verfassung,” Informationsprojekt Naher und Mittlerer Osten (inamo), no. 17 (Frühjahr 1999), 44.

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Those working for the state and those in public life should worship God in their daily lives, for Muslims this is through observing the Holy Quran and the ways of the Prophet, and all people shall preserve the principles of religion and reflect this in their planning, laws, policies, and official work or duties in the fields of politics, economics, and social and cultural activities …311 What is clear is that the state obliged all government officials to be observant and practicing Muslims. It is unclear what the non-observance of this article might mean in practice. The 1998 constitution also talked about the freedom to form political associations (Article 26) and used the rather unusual and intentionally imprecise neologism of al-tawalī l-siyāsī (meaning political association), which was obviously coined in order to avoid the word ḥizb, normally used in Arabic to denote political parties. Article 26 allowed for the formation of al-tawalī l-siyāsī, while paragraph 2 of the same article made this right subject to the condition that these political associations function according to the principles of shūrā and democracy and that they must be based on the constitution. In 1999, the conditions for the foundation of political parties were further specified by law; it became clear that parties could not question the sharīʿa or the unity of the Sudan.312 Consequently, most of the opposition parties that were organized in the National Democratic Alliance that did not subscribe to the Islamist project rejected political participation under the tawalī law.313 The 2005 Interim National Constitution314 largely draws on its 1998 predecessor, but also contains provisions for power-sharing on a 70/30 basis with Southern Sudan, the establishment of an upper house representing the states, and the creation of a first and a second vice president, with one of the two from Southern Sudan. Article 218 makes it obligatory for any person running in elections to respect the Comprehensive Peace Agreement and to enforce its main clauses.315 The Interim National Constitution, not changing the territo-

311 312 313 314 315

Constitution of the Sudan, 1998, art. 18. For a more detailed account of the Political Associations Bill, see Warburg, Islam, 215–219. Seesemann, “Der Sudan,” 45. See the Interim National Constitution of the Republic of the Sudan, 2005. Available online: www.wipo.int/wipolex/en/details.jsp?id=10720, accessed 30 April 2017. The Heidelberg-based Max Planck Institute for Comparative Public Law and International Law (mpi) originally helped to prepare a constitutional framework for the content of the six separate peace protocols. However, the mpi “Draft Constitutional Framework for the Interim Period” was not adopted by the Sudanese government. Subsequently, the Sudanese government, against the wishes of the Sudan People’s Liberation

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rial principle applicable before, maintains that the sharīʿa is to be effective in the North only, thus posing the problem of the status of non-Muslims living in the North. Article 160 calls for an Interim Constitution for ‘Southern Sudan,’— this constitution was promulgated in September 2005.316 Only a few of the Interim National Constitution’s articles make direct reference to Islam. Most importantly, the Sudan is not defined as an Islamic republic, nor is Islam the religion of the state.317 Article 1 of the 1998 constitution set forth that “[t]he State of Sudan is an embracing homeland, wherein races and cultures coalesce and religions conciliate. Islam is the religion of the majority of the population. Christianity and customary creeds have considerable followers.” In comparison, in the Interim National Constitution, references to Islam with respect to the nature of the state have been omitted. Instead, Article 1 states that the Sudan is a multi-racial, multi-ethnic, multi-religious, and multi-lingual state. Thus, by law Islam is not the state religion. Under the 1998 constitution, pivotal regulations, such as those concerning the sources of legislation, contain ambiguous language. Article 65, for instance, reads as follows: Islamic law and the consensus of the nation, by referendum, constitution, and custom shall be the sources of legislation; and no legislation in contravention with these fundamentals shall be made; however, the legislation shall be guided by the nation’s public opinion, the learned opinion of scholars and thinkers, and then by the decision of those in charge of public affairs. While Islamic law was named first in this list of sources of legislation, even for the South, it remained unclear what role the other sources were to play in relation to sharīʿa. In contrast, in the 2005 Interim National Constitution, it is clearly stated that the sharīʿa will not play a role in Southern Sudan: “Nationally

316 317

Movement, excluded the mpi from the process and instead relied on their own legal experts. See http://www.qantara.de/webcom/show_article.php/_c-476/_nr-593/i.html. The mpi’s draft is available online: http://www.sudanjem.com/sudan-alt/english/books/ Draft%20Constitution%20final[1].pdf, accessed 30 April 2017. See http://www.chr.up.ac.za/undp/domestic/docs/c_SouthernSudan.pdf, accessed 30 April 2017. Markus Böckernförde, “The Sudanese Interim Constitution of 2005—a Model to Establish Coexistence Between an Islamic and a Secular Regime,” in Islam and the Rule of Law: Between Sharia and Secularization, edited by Birgit Krawietz and Helmut Reifeld (St. Augustin and Berlin: Konrad-Adenauer-Stiftung, 2008), 85.

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enacted legislation having effect only in respect of the Northern states of the Sudan shall have as its sources of legislation Sharīʿa and the consensus of the people” (Art. 5 (1)). While Southern Sudan is to have its own non-sharīʿa-based legislation (Art. 5 (2)), the sharīʿa clause for the North would leave non-Muslim Southerners in the North subject to Islamic law.318 This situation has been addressed, in part, by safeguards to protect non-Muslims in Khartoum from being subject to sharīʿa punishments. No similar provision exists, however, for non-Muslims living in the North, outside the capital. This group of five provisions (Articles 154–158) that protect the rights of non-Muslims in the capital Khartoum is indeed a fundamental difference between the Interim National Constitution and the constitution of 1998. Next to pledging respect for all religions in the capital (Art. 154), Article 156 outlines the principles that are to guide the dispensation of justice in Khartoum. Apart from the application of tolerance with respect to different cultures, religions, and traditions, Article 156 affirms that: “The judicial discretion of courts to impose penalties on nonMuslims shall observe the long-established sharīʿa principle that non-Muslims are not subject to prescribed penalties, and therefore remitted penalties shall apply.” Finally, Article 157 calls for the establishment of a special commission “to ensure that the rights of non-Muslims are protected and respected … and not adversely affected by the application of Sharīʿa law in the National Capital.” It must be mentioned here that Article 156 contradicts the position of nonMuslims in the Criminal Act of 1991 in many ways and that a faithful application of the Interim National Constitution would require a substantial reform of the Sudan’s penal laws. In 1998, Muslim dominance was further ensured by legislators who made Arabic the official language of the Sudan (Art. 3) and also stipulated the supremacy (ḥākimiyya) of God, the creator of mankind (Art. 4). Governance (siyāda) was bestowed upon the people of the Sudan, who practice it as part of their worship of God. Thus, governance was exercised by the faithful worshippers of God, who act as His trustees. This wording essentially excluded secular Muslims and non-Muslims. These articles, however, were omitted in the Interim National Constitution. According to the Interim National Constitution, a non-Muslim could, theoretically, become president of the whole of the Sudan (Art. 53). The Interim National Constitution also omits most other articles from the 1998 constitution that relate to Islamic precepts and notions, such as the requirement to pay the alms tax (zakāt), state-based support for

318

See the Interim National Constitution of the Republic of the Sudan, 2005, available online: www.wipo.int/wipolex/en/details.jsp?id=10720, accessed 30 April 2017.

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martyrs (shuhadāʾ), the purging of society from liquor among Muslims, and so forth. It goes without saying that the Criminal Act of 1991 and other existing laws (e.g., the Public Order Laws) at various levels (e.g., state, governorate) still give Northern Islamists enough leverage to pursue a policy of Islamization and enforcement of Islamic law, at least as long as substantial legal reforms are not undertaken. The Interim National Constitution expressly makes reference to and confirms the death penalty for ḥadd and retribution-related offenses (qiṣāṣ). It also confirms the applicability of the death penalty for underage (below 18) and elderly (70 and older) offenders in ḥadd or qiṣāṣ cases (Art. 36). Concerning religious freedom, Articles 6 and 38 of the Interim National Constitution commit the state to all precepts of religious freedom normally associated therewith. Article 38 stipulates: “Everyone shall have the right to … declare his/ her religion or creed and manifest the same ….” It should be noted here that this right must be seen in the light of the pertinent sections of the Criminal Act of 1991, which make apostasy of Muslims punishable by death (Art. 126). Non-Muslims are, thus, free to convert to Islam, but not vice versa. In practice, however, since the promulgation of the Criminal Act in 1991, death penalties have not been confirmed and executed in cases against apostates.319 But, discrimination against Christians and adherents of native religions was and is still commonplace,320 irrespective of Article 31, which sets forth that “[a]ll persons are equal before the law and are entitled without any discrimination as to race, color, sex, religious creed … to the equal protection of the law.” The Interim National Constitution also guarantees men and women equal rights in the areas of civil, political, social, cultural, and economic rights (Art. 32). These guarantees, however, contradict other Sudanese legislation to some degree. Equal rights for men and women are especially relevant with regard to sharīʿabased parts of the Criminal Act of 1991 and in consideration of family and inheritance laws, which are known to be unfavorable to women in a variety

319 320

The hanging of Ṭāhā in 1985 is, to my knowledge and until today, the only known case in which the Sudan has executed anyone on the grounds of apostasy. Non-Muslim university graduates have difficulty finding government jobs. There is an undeclared policy of Islamization in the public service sector, in which non-Muslims have lost their jobs in the civil service, the judiciary, and other professions. Christian secondary school students have not been allowed to finish their obligatory military service because they attended church. This is critical, because students who do not complete their military service are not permitted to study at universities. There are also recurrent reports of Christians being convicted of ḥadd crimes. Furthermore, while Muslims may proselytize among non-Muslims, proselytization among Muslims is de facto excluded, since apostasy of Muslims is punishable by death.

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of ways. Article 15 of chapter ii on the “guiding principles and directives” of the Interim National Constitution guarantees that: “No marriage shall be entered into without the free and full consent of its parties.” In the second section of the same article, the state is called upon to “protect motherhood and women from injustice, promote gender equality and the role of women in family, and empower them in public life.” Article 22 of the same chapter, however, clarifies that these provisions “are not by themselves enforceable in a court of law.” In conclusion, the 1998 constitution is a document that reflects one side of a two-pronged strategy. On the one hand, the regime followed a strategy of largescale and uncompromising ideological mobilization, necessary to rally popular support for its jihād in the South and Islamization measures in the North. On the other hand, legislative measures such as the Criminal Act of 1991, which exempted the South from ḥadd punishments, and the 1998 constitution were presented as a clear sign of the North’s willingness to compromise with Southern interests.321 The 1998 constitution was clearly part of the regime’s effort to avail itself of a democratic veneer; this is further underlined by the chosen “democratic legitimacy.” The 1998 constitution was not decided upon by parliament or enacted as a presidential decree but made subject to a referendum. Unsurprisingly, a large majority (96 percent) of voting Sudanese voted in favor of the new constitution.322 In comparison, the Interim National Constitution of 2005, together with the Comprehensive Peace Agreement, marked the end of a long mainly North-South conflict that had been going on, with an interruption from 1972 to 1983, since independence. This could not be achieved without compromises on both sides, mainly pertaining to power-sharing, North-South representation in Sudanese political institutions, and certain safeguards for non-Muslims with regard to the application of the sharīʿa. The Interim National Constitution, however, fell short of international human rights norms, which were not mentioned as a source of legislation.323 Given the fact that there was a second interim constitution for Southern Sudan, also promulgated in 2005, the Khartoum government most probably took into account the possibility that South Sudan would become independent after the scheduled referendum. It therefore wanted to ensure that it did not lose control of the North, where it would rule after a possible Southern independence. This was achieved mainly 321 322 323

Seesemann, “Der Sudan,” 43. Ibid. Compare the detailed analysis of the Sudan Human Rights Organisation: “Observations on the Transitional Constitution,” Sudanese Human Rights Quarterly 20 (January 2006). Available online: http://www.sudantribune.com/spip.php?article13101, accessed 30 April 2017.

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by excluding most of the political parties and civil society from the drafting process,324 holding onto the sharīʿa as a main source of legislation while being vague on the status of international human rights law, and lastly, by not living up to the spirit of the Interim National Constitution in the phase leading up to the referendum.325 Losing the South In May 2004, a protocol on power sharing between the al-Bashīr government and the Sudan People’s Liberation Army’s political wing, the Sudan People’s Liberation Movement, was signed in Naivasha, Kenya. In this protocol, the latter agreed to the application of the sharīʿa in the capital Khartoum; other provisions of the agreement gave guarantees to protect non-Muslims. In principle, the wording of these provisions was meant to safeguard the rights of non-Muslims in the capital, while simultaneously allowing for the continued application of the sharīʿa in Khartoum, as the government sees fit. In January 2005, the National Congress Party, representing the central government and the Sudan People’s Liberation Movement, reached a Comprehensive Peace Agreement, and in July 2005, the Interim National Constitution of Sudan was adopted. According to this agreement, the Sudan was to be governed by an interim constitution during a six-year transitional period. At the end of this period, in January 2011, a referendum took place in Southern Sudan, the result of which is the independence of the Republic of South Sudan (9 July 2011) with the capital Juba. The split between Khartoum and Juba marks the end of at least part of the conflict around the sharī’a. The independent South now has its own criminal law free from the sharīʿa, and the Criminal Act of 1991 remains enforceable only in the North. Southern politicians or other Southern pressure groups, such as the Southern churches, are no longer party to discussions about the future of the sharīʿa. This, however, does not resolve the ongoing discussion on the nature of the state. With the secession of the South, the question of Sudanese identity and how it should be enshrined in a new constitution, possibly an Islamic one, is clearly on the table, but does not seem to have a high priority on the goverment’s agenda.326 With regard 324 325

326

The Max Planck Institute, which initially assisted in the drafting process, was also excluded. On the difficulties of implementing the Comprehensive Peace Agreement, see “Sudan’s Comprehensive Peace Agreement: Beyond the Crisis,” International Crisis Group, Africa Briefing No. 50, Nairobi/Brussels, 13 March 2008. “Divisions in Sudan’s Ruling Party and the Threat to the Country’s Future Stability,” International Crisis Group, Africa Report no. 174 (4 May 2011), 28.

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to the future constitution and the application of the sharīʿa by the al-Bashīr government, it has so far followed its usual two-pronged approach. On the one hand, the government makes an effort to mobilize its clientele. Before and after South Sudan’s secession, al-Bashīr emphasized that “he rejects secularism in the Sudan” and he “reiterated his commitment to replace the country’s constitution with an Islamic one.”327 He also defended the flogging of a woman, the YouTube video of which caused international consternation.328 According to al-Bashīr the National Congress Party’s insistence on sharīʿa law played no role in the secession of the South. He maintains that the population of the North is 98 percent Muslim, who are obliged to follow God’s orders and therefore sharīʿa would be the basis of the new state the National Congress Party was going to build.329 Vice President ʿAlī ʿUthmān Ṭāhā has warned “that Islamic laws would be applied in the country, especially against those rejecting it and detractors of President al-Bashir.”330 The regime clearly wants to present itself as the main bulwark of the Islamic state, in order to preempt other Islamist groups who now try even harder to pressure the regime to accelerate Islamization. Thus, in February 2012, an “Islamic Constitution Front” held its foundation conference in Khartoum. Participating Islamist groups included the Anṣār alSunna, the Muslim Brotherhood,331 and the Just Peace Forum (jpf), all of which threatened “an uprising by Islamists” which would “topple President Bashīr if he does not approve the draft constitution” proposed by the Islamic Constitution Front.332 These splinter groups, however, do not have the power to oust the government.

∵ Since the advent of Islam in the Sudan in the sixteenth century, Sudanese legal history has been shaped and influenced by a variety of sources. These sources include customary law, sharīʿa elements, and royal or sultanic law in Sinnār (1504–1821) and Dār Fūr (1640–1916), Ottoman-Egyptian law in the nineteenth

327 328 329 330 331 332

“Sudan’s Upcoming Constitution will be ‘Islamic’ Bashir Says,” Sudan Tribune, 7 July 2012. http://www.youtube.com/watch?v=PBJRsh4bn3k. “Sudanese President Asserts North Sudan’s Arabic, Islamic Identity,” Sudan Tribune, 6 February 2011. “Sudan’s Taha Says Country to Apply Shariah, Warns al-Bashir’s Detractors,” Sudan Tribune, 1 August 2011. Not to be confused with the National Congress Party (ncp) or al-Turābī’s Popular Congress Party. “Sudan Islamists Warn Bashir over Shariah Constitution,” Sudan Tribune, 28 Feburary 2012.

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century, a short interlude of Mahdist law, common law from the beginning of the Condominium rule in 1898 until today, modern Egyptian civil law from the early 1980s, customary law (in all these periods), as well as diverse family laws of different faiths, including sharīʿa-based family law. While the various ingredients have occupied different spaces over time, certain tendencies are identifiable in the post-colonial period. Three main schools of thought appeared after the Sudan became independent. Each of them suggested a different future for the Sudan’s legal system: one camp proposed its Islamization, a second trend favored its Egyptianization, and a third suggested a pragmatic case by case approach to reform the existing common law system.333 Our historical account of legal developments in recent history shows that none of the camps can claim complete victory, even sixty years after the Sudan’s independence. Luṭfī’s argument in favor of maintaining English law was contrary to the anticolonial discourse of the time. Nevertheless, common law, or rather a Sudanese version of it, while receding in some areas, has been maintained to a much greater degree than the public discourse of the Islamists suggests.334 After the Mahdiyya, the British rebuilt the judicial system from the ground, according to their own models; in the case of criminal law, British-Indian law was adopted. More than sixty years after Sudanese independence and despite all the legislative changes introduced by democratic regimes and military dictatorships alike, the main structures of this colonial heritage are still clearly discernible today in several important aspects. First, the organization and structure of the judiciary and the continuing importance of precedents and law reporting are certainly strong reminders of the British heritage. Furthermore, certain laws from the time of the Condominium are still valid, and in terms of organization and wording, more recent legislation can be traced back to the Condominium as well. The camp advocating the Egyptianization of the legal system, can, to some degree, claim victory in the important field of civil law. After the failed introduction of a slightly modified version of Egyptian civil law in 1971,335 a second

333 334

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Kok, “La transition,” 461–462. Notwithstanding government propaganda, even cabinet ministers seem to be aware of the limits of their legal reforms. After the Comprehensive Peace Agreement, the Sudanese minister of justice conceded in an interview that “We have never deformed the commonlaw system in the Sudan. It is still intact; it is touched but not destroyed.” In Deng, Customary Law, 9. See, under Sudanese Laws and Legislative Projects, Civil Law of 1971. On the repercussions of the introduction of a code of French orientation in a common-law system, see Dilger, “Das sudanische Zivilgesetzbuch.”

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(though somewhat different) attempt in 1984 was successful. The Civil Transactions Act of 1984336 mainly follows the Jordanian civil code, which in turn is inspired by both the Mecelle, the Ottoman civil code of 1876 and Egyptian civil law.337 The Sudan has thus, despite the influence of the Mecelle, joined the large group of Arab states that have adopted Egyptian civil law.338 Most significantly, customary law is still of major importance in the rural areas of the Sudan despite efforts of the al-Bashīr government to marginalize it.339 Since 1983 Sudanese legislation has gone through an accelerated process of Islamization. While this process was not linear, for more than thirty years, two autocratic regimes have expanded the influence of the sharīʿa, to the detriment of competing sources of law. The sharīʿa has influenced criminal legislation, banking laws, taxation laws (zakāt), the 1998 and 2005 constitutions, and, as in most Muslim countries, family and inheritance laws for Muslims, and to some degree civil law.340 However, with regard to the actual implementation of the ḥudūd punishments, it has been noted that “the new legislators seemed rather keen to give an impression of moderate and considerate application as opposed to the cavalier deployment that characterized the 1983 experiment.”341 My findings in this study confirm this assessment.

336 337

338

339

340

341

See, under Sudanese Laws and Legislative Projects, Civil Transactions Act of 1984 [Qānūn al-muʿamalāt al-maddaniyya, 1984]. The importance of the respective influence of these sources seems to be controversial. Krüger points out that the Egyptian civil code played an important role in the drafting of the Jordanian civil code, while admitting that the Jordanian civil code contains more sharīʿa-based elements than the civil codes of other countries strongly influenced by Egyptian civil law. Hilmar Krüger, “Überblick über das Zivilrecht der Staaten des ägyptischen Rechtskreises,” Recht van de Islam 14 (1997), 98. Layish, in contrast, emphasizes the strong influence of the Mecelle, and its sharīʿa-based elements. Layish and Warburg, The Reinstatement, 114, 205–206. For example, Jordan, Iraq, Syria, Algeria, Yemen, Kuwait, and others. Krüger considers the Sudan to be one of the countries under the influence of Egyptian law (“… gehört der Sudan zum ägyptischen Rechtskreis”). Krüger, “Überblick über das Zivilrecht,” 100. The importance of Egyptian civil law for Sudanese jurists is evident in Khartoum’s bookshops— wherever legal literature is available, Egyptian commentaries abound. One of my interview partners estimated that as much as 80 percent of all cases in the Sudan are judged in accordance with customary law. Interview with Supreme Court judge, Khartoum, June 2004. This is to name the most important legislation of the present regime. Note that systematic research on the influence of Islamic law on Sudanese legislation from 1989 until the present is scarce. For an overview, see Köndgen, “Sharia and National Law.” Sidahmed, Politics and Islam, 220.

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In summary, we can say that the Sudanese legal system remains a hybrid patchwork, marked by a high degree of legal syncretism. The Sudan belonged to the first wave of countries (after Libya, Pakistan, and Iran showed the way) to introduce Islamic criminal law in 1983. The fervent application of floggings and amputations under Numayrī was suspended under his direct successors; the present regime that came to power in 1989 subsequently supplanted the Penal Code of 1983 with the Criminal Act of 1991. Despite substantial non-Muslim minorities in the South and among the refugee population around Khartoum, Numayrī introduced Islamic criminal law for the country as a whole. This, for the most part, changed in 1991 when the South was exempted from sharīʿabased punishments. However, the legislation as such, at least in theory, was applicable in the South of the Sudan as well, despite the fact that parts of the South were not under effective government control. It should also be noted that these exemptions pertained to punishments while the definitions were the same for the North and the South. Thus, for example, sharīʿa-based definitions for theft, unlawful sexual intercourse, and armed robbery were applicable in the South as well, without regard to cultural differences.342 From 1983, Islamic criminal law was an important issue of contention between the North and the South, but also in the North itself. Its looming abolition constituted a key motive behind the coup d’état in 1989. As of 1991 the ḥudūd and qiṣāṣ were no longer applicable in the South, though non-Muslim Southerners living in the North were still subject to sharīʿa-based punishments. This highly controversial situation ended, at least on paper, with the Interim National Constitution in 2005. After the independence of the South, Sudan’s plans for the reinforced application of the sharīʿa and an Islamic constitution seemed to gain momentum, though, until 2016, without tangible results. It seems unlikely, however, that the repeated announcements of the application of the “sharīʿa” mean that the laws in place will be applied in a more draconian manner. The government is fighting on too many fronts and can ill afford to further antagonize public opinion. 342

Kok has rightly pointed out that the Criminal Act of 1991 defines zinā as unlawful sexual intercourse between a man and a woman without lawful bond between them. Sex within a levirate relationship, or in a “ghost marriage” is lawful under customary law in many Southern communities, but obviously not under sharīʿa. Compare Kok, “Conflict,” 245– 246.

chapter 3

Sources, Structures, Procedure, Evidence, and General Principles Criminal Legislation In this chapter I highlight how the (anonymous) authors of the codes under discussion explain their motives and intentions in the drafting process and the specific results that were achieved. I further describe the sources and structures of modern Sudanese Islamic criminal law, how its enforcement is organized, and which general principles are applied. Wherever possible, I refer to the pertinent concepts in the fiqh. Further, I quote and explain relevant decisions by the Supreme Court, whenever available. While my aim is to present a solid background of substantive criminal law, we must bear in mind two important issues. First, many of the legal rights stipulated and described in this chapter should be understood in the context of other laws that give wide-ranging powers to the security apparatus. Since a detailed discussion of these laws is beyond the scope of this work,1 a few examples will have to suffice to show how the present regime, with the full range of laws at its disposal, is able to disregard basic legal rights. For example, the National Security Law allows the National Security Service to enter and search any place without a warrant. It also allows members of the National Security Service to arrest and detain someone without charge or trial for up to three days. In cases of suspected offenses against the state, or terrorism, the detention period can be prolonged for extended periods.2 In addition, codified protections against torture are of little value since members of the National Security Service are immune from prosecution for their acts. The Combating of Terrorism Act of 2001 is another example of a law that deprives accused persons of rights guaranteed elsewhere. Thus, the normally guaranteed review of the death penalty by the Supreme Court has been dropped and the death penalty can be confirmed by the special court of appeal, constituted under the Combating of Terrorism Act of 2001. In addition, various emergency laws have given the al-Bashīr regime,

1 For the following, see Medani, “A Legacy of Institutionalized.” 2 By interrupting the detention and re-arresting the accused, the detention period can be extended ad infinitum. See ibid., 78 and n. 25.

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since it took power in 1989, ample leverage to detain individuals for prolonged periods and even without time limits. Thus, the Emergency and Protection of Public Safety Act of 1997 gives “the authorities broad powers in relation to searching and entering buildings, surveillance, seizure and confiscation, movement of persons ….”3 A second important issue that must concern us here is to what degree rules and principles of due process, as present in Sudanese law and described hereafter, can be derived from pertinent prescriptions found in Islamic law. The following chapters show how Islamic procedural rules and principles are often not (fully) respected. Islamic criminal law and its corresponding procedures, however, as devised in the fiqh, must be treated as an indissoluble unit.4 Given that the Penal Code of 1983 and the Criminal Act of 1991 are a mixture of English common law and Islamic criminal law, it is not surprising that Sudanese criminal procedure is also a mix of rules that indeed claim to be derived from Islamic precepts and others that are of western inspiration. Below I weigh these two influences against each other and examine to what extent the former has been adopted. The Objectives of the Penal Code of 1983 and the Criminal Act of 1991 In an explanatory note, Sudanese legislators justified certain provisions and explained how the Penal Code of 1983 should be understood. An important section of the note deals with the question of the (different or equal) treatment of non-Muslims with regard to ḥadd and qiṣāṣ crimes.5 As a general rule, the explanatory note states that all humans are equal before the law, regardless of their religion or social status. In consequence, the Penal Code does not distinguish between, for example, the blood price of a Muslim or a non-Muslim. With regard to drinking alcohol, the Qurʾānic punishment is only applicable to Muslims. Members of other religions, however, who consume alcohol or trade in alcohol and offend the sensibilities of “another person” (read: Muslim) or disturb the public order are to be punished as well because these offenses harm society. Concerning unlawful sexual intercourse (zinā), non-Muslims are to receive the punishments provided for in their own religions. By analogy, a Muslim must be the injured party of a false accusation of unlawful sexual intercourse (qadhf ). If a non-Muslim is guilty of zinā in the same way, the Qurʾānic 3 Ibid., 83. 4 Sadiq Reza, “Due Process in Islamic Criminal Law,” George Washington International Law Review 46, no. 1 (2013), 9. 5 For the following see Layish and Warburg, The Reinstatement, 145, 214, 255. Layish and Warburg quote the Sudanese journal al-Ṣaḥāfa, where the explanatory note was published in October 1983.

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punishment does not apply. The explanatory note also explains that retribution (qiṣāṣ) is to be carried out by the state in the presence of the injured party. The state acts as a general guardian, in the same manner it has carried out other punishments, following Sudanese practice since independence. Justifying this inherent shift of retribution from private to public law, the note argues that allowing the victim or his heir to carry out the punishment would “strengthen the traditional nature of the qiṣāṣ as retaliation at the expense of punishment.”6 Interestingly, we can also observe the opposite tendency, that is, a strengthening of private law vis-à-vis public law. Thus, in the pre-1983 legislation, judges enjoyed immunity with regard to unintentionally committing homicide through a wrong judgment. This immunity, the note points out, was abolished in the new penal code. Judges in such cases are liable to pay blood money (diya). The Criminal Act of 1991, which repealed the Penal Code of 1983, came into force on 22 March 1991.7 In a memorandum8 accompanying the Criminal Act of 1991 its authors explain in detail what the general guiding principles of the drafting process were and what, in their eyes, it achieved: The masses of the Sudanese people, the introduction says, have addressed consecutive governments with a call for an Islamic penal code.9 Consequently, after having secured the country’s safety and unity, the “Revolution for National Salvation” was the first government to tackle the problem. It confirmed its identity and promulgated “authentic Sudanese laws”10 derived from the sharīʿa and thereby answered the aspirations of the Sudanese masses. The authors of the code explain further that they not only took into consideration the criminal laws of 1974 and 1983, but also various sharīʿa criminal code projects of other countries and institutions, such as the projects of the Arab League,11 al-Azhar, the United Arab Emirates, Pakistan, and Egypt, as well as the Sudanese project of

6 7 8

9

10 11

Ibid., 214. Köndgen, Das Islamisierte, 132. The following is taken from Mudhakkira irfāq al-qānūn al-jināʾī lisanat 1991 m, n.d. [Memorandum accompanying the Criminal Act of 1991; photocopy in my possession, without publishing information]. Al-Nūr argues that the Criminal Act of 1991 continues a Sudanese Islamic legal tradition that was interrupted by colonization and western influence. ʿAwaḍ al-Ḥasan al-Nūr, alQanūn al-jināʾī al-islāmī al-sūdānī 91. Sharḥ al-qism al-ʿāmm wa-l-ḥudūd (Khartoum, 1991), 1–2. “Al-qawānīn al-sūdāniyya al-aṣīla.” Arab League, Draft Criminal Law for Members of the Arab League (Mashrūʿ qānūn jināʾī ʿarabī muwaḥḥad) (Rabat and Casablanca, 1986).

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a new penal code. This project, the Criminal Bill of 1988, which was submitted to parliament in 1989, passed the first and second reading, but did not come to fruition due to controversies between the political parties and “foreign pressure.”12 Further, the precise wording of the 1991 code was improved by taking into account modern criminal jurisprudence (al-fiqh al-jināʾī l-mutaṭawwir). Major flaws which became evident during the application of earlier codes were remedied. For example, the Penal Code of 1983 included a number of different versions of what were similar crimes; these have been streamlined in the Criminal Act of 1991, especially with regard to theft, robbery, fraud, and crimes committed by public servants.13 The main source of the code is the Islamic sharīʿa. It uses ijtihād and takes into account the “orthodox” schools (madhāhib), the latest developments of the time (mustajidāt al-ʿaṣr), and the conditions of the country (ẓurūf al-bilād). Orthodox jurisprudential terminology (al-muṣṭalaḥ al-fiqhī) is used in order to relate the law to the jurisprudential and Arab heritage (al-turāth al-fiqhī wa-l-ʿarabī) and render it compatible with modern and current terminology in the Sudan.14 With regard to punishments, the authors explain that, in general, the new code diminishes prison terms and limits flogging—except for crimes that call for special deterrence. It also introduces the new penalties of banishment and exile (taghrīb wa-nafiy) and separates punishments (ʿuqūbāt) from compensational penalties (al-jazāʾāt altaʿwīḍiyya).15 Next to the introduction of innovations, the new code eliminates certain features of its predecessor. It thus abolishes the extensive legislation on political offenses and introduces wide-ranging changes with regard to political crimes, while concurrently strengthening liberties. It abolishes provisions that contain imprecise definitions that are incompatible with the definitive character of criminal law and the principle of the rule of law. Finally, the code treats the consequences that result from suspended convictions of ḥadd punishments from the period before the code was promulgated. The delay of executions is considered a shubha that annuls the ḥadd punishment, according to the opinion of Abū Ḥanīfa and taking into consideration the relevant text on a substitution taʿzīr punishment.16

12 13 14 15 16

See introduction to the memorandum, 1. Paragraph 2: Exactitude, paragraph 1 deals with the arrangement of the chapters. Paragraph 3: Sources (uṣūl). Paragraph 4: Innovation. Paragraph 7: Transition.

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Codes of Criminal Procedure The Criminal Procedure Act of 1983 was, to a large extent, inspired by its predecessor, the Code of Criminal Procedure of 1974. Many articles were simply taken over from the 1974 code.17 With regard to its general principles, the Criminal Procedure Act of 1983 maintained the same rights that were already guaranteed in 1974. Thus, the accused has the right to a fair and speedy trial,18 there is a presumption of innocence until guilt is proved beyond reasonable doubt,19 no punishment shall be inflicted beyond that prescribed by law in force at the time the offense was committed,20 and no person shall be subjected to cruel and inhuman treatment.21 Further, no person shall be subject to double jeopardy or torture. Enticement or intimidation shall not be used in interrogation22 and the accused has a right to an advocate of his choice.23 The Criminal Procedure Act of 1983, while maintaining substantial parts of the previous system, did make important amendments in an effort to render it compatible with the new penal code and to Islamize it. Thus, in an annex, the Criminal Procedure Act of 1983 stipulates that the chief justice will issue occasional criminal circulars announcing a decision about the school(s) the courts should follow in their application of the Islamic sharīʿa. These circulars also determine the amount(s) to be paid as diya (blood money) in cases of homicide or bodily harm.24 The necessity of administering justice in conformity with the sharīʿa also restricts the powers of the president of the Sudan and the attorney general. Thus, the

17

18

19 20 21 22 23

24

A thorough description of the Code of Criminal Procedure of 1974 is given in Carleton W. Kenyon, The Sudan: Law of Criminal Procedure (Washington, dc: Law Library, Library of Congress, 1984). Guaranteed under the constitution of 1973, art. 64 which was in force when the September laws were promulgated. The Criminal Procedure Act of 1983 speaks of the right to a fair and complete (nājiz) trial. See Criminal Procedure Act of 1983, art. 3. Criminal Procedure Act of 1983, art. 3, and Code of Criminal Procedure of 1974. Criminal Procedure Act of 1983, art. 3, and Code of Criminal Procedure of 1974. Criminal Procedure Act of 1983, art. 3, and Code of Criminal Procedure of 1974. Criminal Procedure Act of 1983, art. 127, and Code of Criminal Procedure of 1974, art. 235. Criminal Procedure Act of 1983, art. 39, and Code of Criminal Procedure of 1974. Kenyon points out that, at least until the first half of the 1980s, there was a significant gap between the legal guarantee to an advocate and the number of qualified advocates available, which was inadequate. In 1984, he wrote, “There is no legal aid in the country; therefore, judges perform the function of both the prosecution and defense in most of the cases they decide.” Kenyon, The Sudan, 29. These amounts can be applied country-wide or in specific provinces only, as the chief justice considered it just (ʿādil) and in harmony with the Islamic sharīʿa. See Criminal Procedure Act of 1983, annex to art. 307, p. 119.

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president has the authority to waive a punishment, commute a sentence or cancel a conviction for a crime only when this does not contradict the sharīʿa.25 Similarly, the attorney general cannot terminate criminal proceedings if doing so violates the sharīʿa.26 In order to ensure that the sharīʿa is respected, the Supreme Court and the court of appeal may request, on their own initiative, any file on the criminal proceedings of a lower court if they consider the proceedings to be in violation of the sharīʿa.27 With regard to the death penalty, the Criminal Procedure Act of 1983, in contradiction to the fiqh, does not allow for the execution of anyone seventy years of age or older.28 In comparison to the large-scale changes and streamlining effected in the Criminal Act of 1991, the accompanying Criminal Procedure Act of 1991 has become more concise and a third shorter than its predecessor. Sharīʿa-related issues that had not been stipulated specifically were introduced into the Criminal Procedure Act of 1991 to bring it more in line with the sharīʿa. These concern, for example, the application of the death penalty, the (public) implementation of ḥadd, qiṣāṣ, and flogging sentences, and the introduction of a special panel to revise Supreme Court judgments that may involve contraventions of the sharīʿa.29 The Sources of Modern Sudanese Islamic Criminal Law The main sources of Sudanese criminal law are common law, the sharīʿa, and customary law.30 The influence of common law is clearly visible in the Penal Code of 1983 and the accompanying Criminal Procedure Act of 1983, both of which closely followed preceding codes. In the case of the Penal Code of 1983 in particular, the lineage clearly goes back to the days of the Condominium. The Penal Code of 1974, which served as a model for most of the Penal Code of 1983 is also closely related to its 1924 predecessor. The common law that was practiced in the Sudan before Islamization was a compilation of the constitution and statutory enactments, such as codes, acts, legislation, rules, orders, and precedents, etc. Despite the Islamization of the legal system, first under Numayrī and

25 26 27 28 29 30

Criminal Procedure Act of 1983, art. 257. Criminal Procedure Act of 1983, art. 215 (2). Criminal Procedure Act of 1983, art. 239 (1). Criminal Procedure Act of 1983, art. 247 (1). This was changed in the Criminal Procedure Act of 1991. This special panel was not part of the original text of the Criminal Act of 1991 and was only added as an amendment later. To my knowledge there are no studies on the possible influences of customary law on modern Sudanese Islamic criminal law.

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then under al-Bashīr, this array of legislative texts basically remained in effect. Efforts to Islamize the law did not lead to the elimination of these inherited structures, neither with regard to forms of legislation nor judicial institutions (e.g., the hierarchy of the court system). Though we might imagine, for example, the application of the uncodified sharīʿa, this, however, did not happen. On the contrary, in the one field in which the uncodified sharīʿa was applied in the past, i.e., in relation to family law, it was replaced by codified statutory law in 1991. With regard to the sharīʿa as a source of law, the Mālikī madhhab was the school adhered to by Muslims in the Sudan, though Ḥanafī law gained importance under Turko-Egyptian rule, and in 1914, well into Condominium rule, a translation of Muḥammad Qadrī’s The Code of Mohammedan Personal Law According to the Hanafite School was translated and published for the use of the British judges in the Sudan.31 Islamic criminal law, as introduced in 1983 and revised in 1991, does not limit itself to the Mālikī and Ḥanafī schools, but draws on all Sunnī schools and on rare occasions even on Shīʿī law. Customary law is recognized as a source of law in the Basic Rules of Judgment Act of 1983;32 it instructs the judge, in the case of a lacuna, to take a decision according to custom, provided he has exhausted ijtihād from the textual sources, the principles of the public interest, presumed the innocence of the accused, and applied judicial precedents. Relying on custom in judicial decision, however, must not contradict the sharīʿa or natural justice.33 Techniques (and Pitfalls) of sharīʿa Codification Legislative Techniques The legislative technique predominantly used in the process of sharīʿa codification is what Layish calls the eclectic expedient (takhayyur), that is, selecting legal opinions either from different schools, or from majority or minority opinions within one school. These opinions are subsequently either grafted onto an existing code (Penal Code of 1983) or they become part of a new one (Criminal Act of 1991). In this study, I show that indeed all four Sunnī schools, majority and minority opinions, and at least in one instance Shīʿī fiqh served as sources for the statutory codification of sharīʿa law, despite the historical predominance of the Mālikī and Ḥanafī schools in the Sudan. The only guiding principle seems to have been expedience, that is, an opinion was chosen according to the result 31 32 33

Kenyon, The Sudan, 12. Art. 3 (b) (vi). Layish and Warburg describe how custom plays a role in Sudanese criminal jurisdiction, especially in cases involving qiṣāṣ and diya. Layish and Warburg, The Reinstatement, 194– 197.

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intended by the legislators. For example, the pregnancy of an unmarried woman is accepted as proof of zinā in the two Islamist criminal procedure acts, despite the fact that only the Mālikī school recognizes it. Here the intention was clearly designed to make zinā easier to prove.34 The further development of sharīʿa law by way of Supreme Court case law must also be understood as a “legislative technique.” While it is not legislation proper, Supreme Court interpretations of existing legislation often fill gaps and establish binding precedents and can thus be seen as equivalent to legislation. Layish points out that Sudanese judges, especially those in the highest levels of the judiciary (Supreme Court), have used “neo-ijtihād,” that is, interpretations of the Qurʾān and Sunna, to reconcile legal norms with modern requirements. By using the doctrine of maṣlaḥa (public interest), in many instances Supreme Court judges reveal a liberal attitude in the implementation of the Islamic criminal law and its adaptation to societal needs.35 Cases in point are, for example, the non-application of qiṣāṣ in cases of bodily harm, or an interpretation of the term ʿāqila (solidarity group) that is more in harmony with the understanding of modern society. The Authority of the sharīʿa In the Sudanese legal system, the authority of the sharīʿa can be directly derived from the various constitutions in force since 1973. The September laws were promulgated in adherence to Article 9 of the Permanent Constitution of 1973, which stipulates that “Islamic law and custom shall be the main sources of legislation ….”36 Before the September laws, the influence of the sharīʿa on Sudanese legislation was very limited, but gained momentum in 1977 when new Islamic legislation concerning the banning of alcohol, gambling, and usury, etc. was drafted. It must be noted that the increasing role of the sharīʿa as a main source created a multitude of constitutional problems when the September laws came into force. The 1973 constitution guaranteed equal rights,37 freedom of religion,38 and freedom from cruel and unusual punishment,39 all of which were in direct contradiction to provisions of the Penal Code of 1983. These con-

34 35 36 37 38 39

This led to important practical problems in cases of rape, when women who were pregnant after having been raped were treated as culprits of zinā instead of victims of rape. Layish and Warburg, The Reinstatement, 282. The Permanent Constitution of the Sudan 1973, art. 9. Interestingly, the Penal Code of 1974 did not contain any Islamic provisions. Art. 38. Art. 47. Art. 72.

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tradictions persisted with the transitional constitution of 1985 which gave similar guarantees while the September laws remained on the statutes.40 The first Islamist constitution of 1998 confirmed the authority of the sharīʿa as a source of legislation, alongside the consensus of the nation by referendum, the constitution, and custom. No legislation was to be made in contravention of these fundamentals.41 In addition, the constitution of 1998 contains various sharīʿaderived elements, such as a provision on zakāt,42 the pledge to purge society from liquor among Muslims,43 and a provision on the applicability of the death penalty in ḥadd and qiṣāṣ cases.44 Despite these provisions, the constitution of 1998 did not solve the contradiction between the authority of the sharīʿa and the granting of fundamental rights such as freedom of religion,45 equality before the law,46 and non-discrimination based on sex or religion.47 In the last constitution, the Interim National Constitution of 2005, which is still in force as of 2016, the legislators sought a balance between Northern and Southern interests with regard to the role of the sharīʿa. Article 5(1) of the Interim National Constitution stipulates that the sharīʿa and the consensus of the people shall be the sources of legislation, but only in the Northern states of the Sudan. In the South, the sharīʿa has no role to play as a source of legislation. With regard to banking, a dual banking system is provided for, with an Islamic system in the North. The Interim National Constitution stipulates that the non-Muslim Southern refugees living in and around Khartoum are not subject to prescribed sharīʿa-based penalties.48 A special commission is charged with ensuring that non-Muslims are not adversely affected by or subject to the application of the sharīʿa law in the capital.49

40

41 42 43 44 45 46 47 48 49

See also Steven C. Sherman, “Shari’a Law in the Sudan: Why it Does Not Work Under the Sudanese Constitutions of 1973 and 1985,”Penn State International Law Review 7, no. 2, art. 9 (1989), 295–297. Constitution of the Republic of the Sudan, art. 65 (adopted June 1998). Art. 10. Art. 16. Art. 33 (2). Art. 24. Art. 21. Art. 21. Interim National Constitution 2005, art. 156 (d). Interim National Constitution 2005, art. 157.

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Legality Principle The legality principle “nulla poena sine lege” was firmly established in the constitution of 1973 which was in force when the September laws were promulgated, and this principle remained operative until after the downfall of the Numayrī regime. The constitution of 1973 stipulated that “no person shall be punished for an act which was not an offence at the time he committed that act ….”50 The new Islamist legislation, however, contradicted this principle. Thus, the Basic Rules of Judgment Act of 1983 stipulates that in the absence of a statutory provision, the judge shall apply sharīʿa rules established by the Qurʾān and Sunna.51 Further, the Penal Code of 1983 provided that when a ḥadd punishment was remitted the judge could impose any taʿzīr punishment, even if such a penalty was not clearly stipulated in the penal code. Moreover, the absence of a text in the penal code does not mean that a ḥadd punishment cannot be applied.52 While the last two provisions were abolished when the new Criminal Act of 1991 was introduced, the Basic Rules of Judgment Act of 1983 remains in force and still allows a judge to apply sharīʿa rules even without a clear provision in the statutory laws.53 In practice, it is interesting to note the contradictory application of this principle. Layish reports a case in which the criminal court of appeal overruled a criminal court sentence for a crime that took place before the September laws were enacted in 1983.54 It reasoned that the new 1983 legislation could not be applied retroactively and that “everyone is entitled to know the statutory sanctions entailed in any offence.”55 In other words, the criminal court of appeal upheld the principle of “nulla poena, nullum crimen sine praevia lege,” despite the provisions of the Basic Rules of Judgment Act and the penal code contradicting it. In the highly-politicized case dealing with the alleged apostasy (ridda) of Muḥammad Ṭāhā, however, the uncodified offense of apostasy led to the execution of the accused, despite the fact that the offense did not exist in the statutes.56

50 51 52 53 54 55 56

The Permanent Constitution of the Sudan, 1973, art. 70. Basic Rules of Judgment Act 1983, art. 3 (a). Penal Code of 1983, art. 458 (3). For cases illustrating this principle in practice, see Layish and Warburg, The Reinstatement, 180ff. Ibid., 274. Ibid. For a detailed survey of the juridical details of the Ṭāhā trial, see an-Na’im, “The Islamic Law of Apostasy,” and O’Sullivan, “The Death Sentence.”

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Legal Circulars The power to issue legal circulars dealing with the interpretation of the sharīʿa goes back to the Muhammadan Law Courts Organization and Procedure Regulation of 1915,57 which granted the grand qāḍī the leverage to introduce reforms by choosing and combining doctrines mainly of the Ḥanafī school, but also of other schools. Until the abolition of the office of the grand qāḍī in 1979 more than sixty circulars were issued; these deal with administrative matters and with the introduction of reforms of substantive law. In 1980, the Sudanese judiciary was reorganized and sharīʿa courts and civil courts were unified under the chief justice. The chief justice, who until this point had been head of the civil judiciary, continued to issue legal, including criminal circulars.58 Approximately a dozen criminal circulars were issued between October 1983 and May 1984 by the then incumbent chief justice Dafʿallāh al-Ḥājj Yūsuf; these filled the many loopholes in the September laws and resolved difficulties in its application. The chief justice’s power to issue circulars (manshūrāt) was stipulated in Article 308 of the Criminal Procedure Act of 1983. According to this article, he issued circulars in order to determine the school(s) the courts must follow in the application of the sharīʿa.59 The chief justice himself declared that the circulars do not follow any particular school of law and that “he has no inhibitions whatsoever to adopting legal doctrines from any school provided they are ‘in harmony with the sharīʿa and the Islamist statutes.’”60 The circulars complement the Islamist legislation and are meant to guide the judges in their application of the sharīʿa. Most importantly, they are meant to mitigate the “harsh consequences of the Qurʾānic punishments and retribution.”61 They are, with some exceptions, still valid and applicable with regard to the Criminal Act of 1991.62 Circulars related to Islamic criminal law are still being issued under the al-Bashīr regime in order to fill the gaps left by previous chief justices.63 57 58

59

60 61 62

63

Section 53, for the following see Layish and Warburg, The Reinstatement, 72–75. See ibid., 74–75. For a compilation of criminal circulars of this period, see Muḥammad Khalīfa Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya: Dirāsa taʾṣīliyya fiqhiyya muqārina. aljuzʾ al-sādis (Khartoum, 2002), [vol. 6]. Criminal Procedure Act 1983, art. 308 (a). The article further stipulates that the chief justice determines, by way of circulars, the amounts to be paid as blood money in cases of homicide and bodily harm. See art. 308 (b). Layish and Warburg, The Reinstatement, 99. Ibid., 98–99. With regard to ḥadd and qiṣāṣ, no new circulars seem to have been issued under the alBashīr regime. Hāmid’s collection of circulars, published in 2002, does not report any new circulars with regard to ḥadd and qiṣāṣ. See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 2 covers criminal circulars from 1983

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Enforcement and Procedure Law Enforcement and the Sudanese Court System Types, Hierarchy, and Powers of Criminal Courts According to the Criminal Procedure Act of 1991, there are eight different types of criminal courts in the Sudan.64 At the top of the pyramid we find the Supreme Court, followed, in descending order, by the court(s) of appeal,65 general criminal courts (provincial courts), first criminal courts (district courts), second criminal courts (district courts), third criminal courts (district courts), people’s criminal courts (town or rural courts), and finally any special criminal court established by the chief justice under the Judiciary Act of 1986 or any other law. The organization of the courts is slightly more differentiated than it was in the Penal Code of 1983 (at that point there was just one level of district court, rather than three).66 The Criminal Procedure Act of 1983 does not list the People’s Criminal Courts, but lists “councils of judges” (majālis al-quḍāt); these were abolished in 1991. As to the powers of the different types of courts, it is the general criminal court that can inflict any penalty or sanction provided for by the law.67 A first criminal court can impose any penalty other than the death penalty. However, when it considers a criminal suit summarily, the penalties it can inflict are limited. For example, a prison term may not exceed one year and flogging may not exceed 80 lashes. The powers of a second criminal court are more limited than that of a first criminal court, for example, it cannot impose a prison term exceeding seven years. This decreases to six months or less if it considers a case summarily. A third criminal court has even more limited powers and can consider a criminal suit only summarily. It can only impose prison terms not exceeding four months and flogging cannot exceed 40 lashes. People’s criminal courts have the summary powers prescribed for the first, second, and third criminal courts, in accordance with the warrant of their establishment.

64 65 66 67

to 2006. The relevant articles for the issuance of legal circulars today are the Criminal Act of 1991, art. 42 and art. 212. Criminal Procedure Act of 1991, art. 6. There are 28 appeal circuits with 130 appeal court judges. As of 1986, three different levels of district courts existed. See the Judiciary Act of 1986, art. 10. For this and the following, see the Criminal Procedure Act of 1991, art. 9–13.

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Judges: Qualifications, Appointments, Discharge The president of the Republic of Sudan appoints the chief justice and his deputies and the judges of the Supreme Court, the court(s) of appeal, the general courts, and the district courts. He can also dismiss them from their posts.68 Candidates for vacancies in the judiciary must be Sudanese nationals and at least twenty-three years old for an appointment as assistant judge (musāʿid qaḍāʾī), twenty-five years of age for the post of district judge, thirty years of age for the general courts, thirty-five years of age for the court(s) of appeal, and forty years of age to be eligible for a post in the Supreme Court.69 Appointees to the judiciary must be graduates from a university recognized in the Sudan and must not have been previously convicted, even if they have been given amnesty.70 Candidates must also be of good conduct and good reputation.71 Judges of the Supreme Court are chosen from among the (active) judges of the court(s) of appeal.72 They can also be chosen from outside the judiciary. In the latter case, the following groups are eligible: former judges of the Supreme Court and court(s) of appeal, legal advisers to the ministry of justice, lawyers, and law professors at a university recognized in the Sudan. The last three groups must have practiced at least eighteen years in their respective professions. Judges of the appeal court are chosen from among the judges of the general courts or, if the candidates are from outside the judiciary, they can be appointed from among the former members of the court(s) of appeal or general courts or the three other groups which are also eligible for the Supreme Court. They need to have practiced a minimum of fifteen years in their respective professions. Judges for the general courts are either recruited by promotion from among active or former judges of first (degree) district courts73 or former judges of the general courts. Legal advisers to the ministry of justice, lawyers, and law professors are also eligible but must have practiced their respective professions for a minimum of twelve years. District court judges are recruited by promotion from second to first (degree) courts, from third to second (degree) courts and from among assistant judges to third (degree) courts. Again, they can also be

68 69 70 71 72 73

Judiciary Act of 1986, art. 22. Judiciary Act of 1986, art. 23 (a), (b). Judiciary Act of 1986, art. 23 (c), (d). Judiciary Act of 1986, art. 23 (e). For this and the following Judiciary Act of 1986, art. 25–28. The names of the courts are slightly different in the Judiciary Act of 1986 than they are in the Criminal Procedure Act of 1991; for example, the first criminal court was a court of the district judge of the first degree (maḥkamat al-qāḍī l-juzʾī min al-daraja al-ūla).

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appointed from among the legal advisers to the ministry of justice, lawyers, or law professors. Judges appointed to military courts are selected by the armed forces.74 The service of judges is terminated either by dismissal, resignation or retirement.75 Public Prosecutor Historically, prosecutorial tasks were carried out by the police. However, with the creation of the office of public prosecutor, this role was gradually taken over by prosecutors, wherever courts exist in the Sudan.76 The Criminal Prosecution Bureau (al-niyāba al-jināʾiyya) has the power to supervise criminal suits, to direct investigations, determine the charges, and handle prosecutions before criminal courts.77 However, with regard to the investigation, the minister of justice can grant any person the right to investigate—a right that was previously held by the prosecution attorney’s bureau—whenever he deems it conducive to the achievement of justice.78 The general crimes police can initiate criminal suits only with the permission of the prosecution attorney.79 Prosecution attorneys have various powers. They can transfer investigations to another prosecution attorney’s bureau if appropriate,80 dismiss the criminal suit if there are not sufficient grounds to continue it,81 issue warrants for the arrest of any person82 or issue orders to search a place.83 We must note that the public prosecutor in the Sudan carries out his duties as part of the ministry of justice. In many systems, the public prosecutor works under an attorney general who is in an independent institution, and not answerable to the ministry of justice. The fact that in the Sudan the minister of justice also holds the office of attorney general means that there is a certain risk that the public prosecutor may be influenced by political considerations or yield to pressure when conducting investigations or other tasks. In particular, his power to stop proceedings at any stage before a verdict has been reached can easily be abused in the present system.84

74 75 76 77 78 79 80 81 82 83 84

Amin and Ramadan, “The Law of Criminal Procedure,” 372. Judiciary Act of 1986, art. 72. Medani, “A Legacy of Institutionalized,” 84. Criminal Procedure Act of 1991, art. 19. Criminal Procedure Act of 1991, art. 20. Criminal Procedure Act of 1991, art. 35. Criminal Procedure Act of 1991, art. 30 (1). Criminal Procedure Act of 1991, art. 57. Criminal Procedure Act of 1991, art. 67. Warrants of arrest may also be issued by a judge. Criminal Procedure Act of 1991, art. 86 (1). Compare Medani, “A Legacy of Institutionalized,” 84–85.

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Rights of the Accused The accused has a number of rights which apply in the pre-trial and/or in the trial stage.85 These can be found in the Evidence Act of 1993 or in the Criminal Procedure Act of 1991 and are based on the following principles: The accused is presumed innocent until proven guilty beyond reasonable doubt.86 He has the right to be defended by an advocate or a pleader.87 If the accused is insolvent and accused of an offense that is punishable by imprisonment of ten years or more, amputation or the death penalty, the ministry of justice appoints a person to defend him and the expenses are to be borne by the state.88 Whoever is convicted of a crime has the right to have his conviction and sentence reviewed by a higher court.89 An accused person shall not be compelled to testify against himself or to confess his guilt. His or her confession must be made willingly. It is illegal to use force to obtain an admission of guilt, to obtain information or to prevent the accused from conveying information. Statements, evidence or procedures must be translated if the accused is interested in them and does not understand the language in which they are given.90 In the event that the accused admits to being guilty of an offense punishable by death, amputation or more than 40 lashes, the court must caution the accused as to the seriousness of his admission, if the admission is the only evidence against him.91 No one shall be liable to re-trial or re-punishment for an offense for which he has already been convicted or acquitted. As a rule, the Criminal Procedure Act stipulates that trials are open to the public and that judgments are also pronounced in an open session, however, trials in absentia are also allowed.92 After judgment is passed, if the sentence is subject to appeal, the court must inform the accused and other interested parties of their right to appeal and the periods within which the appeal may be presented.93 The accused has the right to .

85 86 87

88 89 90 91 92 93

For the following, see Amin and Ramadan, “The Law of Criminal Procedure,” 379–381, if no other sources are indicated. Evidence Act of 1993, art. 5 (b). Article 135 (2) stipulates that “The Court may permit any person to plead before it, where it deems him qualified therefore.” In other words, the pleader is a person, not necessarily a jurist, who serves in a defensive capacity on behalf of the accused. Criminal Procedure Act of 1991, art. 135 (1), (3). Criminal Procedure Act of 1991, art. 183. Criminal Procedure Act of 1991, art. 137 (1). Criminal Procedure Act of 1991, art. 144 (3). For example, in cases of offenses against the state. Criminal Procedure Act of 1991, art. 166, 133, 134. Criminal Procedure Act of 1991, art. 171.

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obtain a copy of the judgment upon request. He will be given a translation, in his language, if possible and upon request.94 Investigation of Crimes Investigations are conducted by the general crimes police, under the supervision and direction of the prosecution bureau. The prosecution attorney may conduct the whole investigation himself or complete an investigation when necessary.95 If the investigating officer in charge or the prosecution attorney is party to an investigation or has a private interest in it he may not conduct the investigation.96 The record of the investigation must be written and contain, inter alia, statements of the accused and witnesses, the decision of the charge, a summary of the investigation, the decision of committal for trial or a decision of the prosecution attorney’s bureau to dismiss the criminal suit.97 The inquiring authorities shall not influence any party to the inquiry by enticement, coercion or harm, in order to force him to deliver or omit any statements or information.98 Judgments Judgments shall be passed in an open session, in the presence of the accused, except in cases of a trial in absentia, and as soon as possible after the completion of the hearing and pleadings.99 When the accused is sentenced to death, the judgment must specify how the death penalty is to be executed.100 The judgment must contain the charge, the decision, the grounds, and final orders, and if the accused has been convicted of more than one offense and penalties of imprisonment, the judgment must mention whether these are to be served concurrently or consecutively.101 Considering the defendant’s good reputation and conduct, his age, morals, previous convictions, and nature and circumstances of the offense, the court may order that the execution of the sentence be suspended for a probation period not longer than five years. Ḥadd, qiṣāṣ, death, and prison sentences for more than five years, however, are exempted

94 95 96 97 98 99 100 101

Criminal Procedure Act of 1991, art. 173. Criminal Procedure Act of 1991, art. 39 (1), (2). Criminal Procedure Act of 1991, art. 44. Criminal Procedure Act of 1991, art. 42. Criminal Procedure Act of 1991, art. 43 (2). Criminal Procedure Act of 1991, art. 166. Criminal Procedure Act of 1991, art. 169. Criminal Procedure Act of 1991, art. 167, (1), (3).

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from this possibility.102 Judgments shall be executed as soon as possible; a sentenced person must not be prejudiced by waiting or delaying the time of execution. Execution of Sentences Sentences of flogging, retribution, and death are to be executed in public in the presence of the first instance judge and a number of attendants.103 The execution of judgments is to be swift, notwithstanding appeal, with the exception of the death penalty, qiṣāṣ, ḥudūd, and flogging.104 All death sentences and amputations can only be executed after being confirmed by the Supreme Court.105 After the Supreme Court has confirmed the sentence and issued an order of execution, the head of state must consent to the execution before it can take place. The exception to this rule are death sentences by way of ḥadd or qiṣāṣ, in which the head of state has no voice.106 In non-ḥadd and non-qiṣāṣ death sentences, the head of state may replace the sentence with another penalty authorized by law.107 If a person sentenced to death reaches seventy years of age before the punishment, the execution shall be suspended. Death sentences by way of ḥadd or qiṣās are exempted from this regulation. If a woman who is sentenced to death is known to be pregnant before the execution of the judgment, execution will be postponed until after delivery and the lapse of a two-year lactation period, provided the baby is born alive.108 In cases of executing ḥudūd, qiṣāṣ, and flogging, the health of the sentenced person is to be taken into consideration in order to avoid undue additional prejudice. Before the execution of an amputation, by way of ḥadd or by way of qiṣāṣ, a medical examination precedes the amputation and the amputated person remains in medical care, paid by the state, until the wound is healed.109 In cases in which the health of the convicted does not allow for the execution of ḥadd, qiṣāṣ or flogging, the court that passed the sentence may decide on how to deal with the case as it deems fit.110 The heirs of a victim of homicide or bodily harm may request the suspension of the execution of qiṣāṣ at any moment before the

102 103 104 105 106 107 108 109 110

Criminal Procedure Act of 1991, art. 170 (1). Criminal Procedure Act of 1991, art. 189. Criminal Procedure Act of 1991, art. 190 (1), (2). Criminal Procedure Act of 1991, art. 192 (1). Criminal Procedure Act of 1991, art. 191 (1). Criminal Procedure Act of 1991, art. 191 (2). Criminal Procedure Act of 1991, art. 193. Criminal Procedure Act of 1991, art. 194 (2). Criminal Procedure Act of 1991, art. 194 (3).

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implementation of the sentence.111 As to the imposition of flogging, the Criminal Procedure Act of 1991 is very precise: A man is to be flogged while standing without being tied or bound. A woman, in contrast, receives her lashes while being seated. Flogging shall be “… temperate, moderate and non-cracking and non-breaking, distributed, other than on the face, head and fatal places, by a moderate whip, and any other similar tool may be used.” Flogging shall be suspended if the observing judge concludes that, during its implementation, for health reasons, the offender cannot bear the remainder of the flogging.112 Appeal and Cassation The following judicial matters can be appealed: first instance judgments and judgments that have not exhausted all stages of appeal, orders restricting the freedom of the appellant with regard to his person or property, and finally, all decisions relating to matters of jurisdiction.113 First instance measures of the first criminal court and the general criminal court will pass before the court(s) of appeal, whose judgment is final. Measures of the third and second criminal courts pass before the general criminal court.114 An appeal or a demand for cassation can be lodged, not later than fifteen days after the declaration of the contested judicial measure, either by one of the involved parties or by any other person having an interest in the case.115 The higher court has a range of options with regard to either confirmation or cassation. It can confirm the judgment in toto, confirm the decision and change the penalty, modify the conviction from one offense to another, return the judgment to the first instance court for revision according to directions given by the higher court, or quash the judgment with or without re-trial.116 A court with the power of confirmation, appeal or cassation may pass any suitable order it deems just, such as an order to release the accused on bail, or pass an interlocutory order to detain whoever the first instance court released.117 As noted, all death, amputation or life imprisonment sentences must be submitted, when final, to the Supreme Court in order to have them confirmed.118 The Supreme Court is also able to consider cassation of judicial measures passed by the competent

111 112 113 114 115 116 117 118

Criminal Procedure Act of 1991, art. 195 (1). Criminal Procedure Act of 1991, art. 197 (c). Criminal Procedure Act of 1991, art. 179. Criminal Procedure Act of 1991, art. 180. Criminal Procedure Act of 1991, art. 183, 184. Criminal Procedure Act of 1991, art. 185. Criminal Procedure Act of 1991, art. 186. Criminal Procedure Act of 1991, art. 181.

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court of appeal, provided there is a contravention of the law, or an error in its application or interpretation.119 In addition, the Supreme Court and the court of appeal can decide, of their own accord, or upon petition, to review the record of any criminal suit and any court in order to ensure soundness of procedure and the achievement of justice. They may take any order they deem fit.120 Further, even Supreme Court judgments can be reviewed by a special panel of five judges made up of the chief justice, when he considers that a Supreme Court judgment contravenes the sharīʿa, or involves a mistake in the law (khaṭāʾ fī l-qānūn) or in its application or interpretation.121 Limitation Limitation (taqādum) in the fiqh is only mentioned by the Ḥanafīs,122 who consider the deferment of testimony or the delay in the execution of a punishment a legal uncertainty (shubha) that causes the limitation of the prosecution of an offense and the execution of a punishment respectively.123 The Ḥanafīs distinguish between the claims of men (ḥaqq adamī) and a claim of God (ḥaqq Allāh). While the former is not subject to limitation,124 for the latter, limitation of the prosecution differs, depending on the crime in question.125 For example, for the conviction for alcohol consumption, little time is allowed to pass: the sentence must be pronounced before the smell of alcohol has disappeared. Even if the offender confesses, conviction at a later date is excluded. Qadhf, as a hybrid crime that simultaneously involves a claim of God and a private claim, is not subject to limitation like all other ḥadd offenses. In the case of apostasy (ridda), prosecution lapses once the accused returns to the community of believers. For all other ḥadd offenses, Ḥanafī fiqh holds that prosecution cannot be instituted after a period of one month, and according to some, pros-

119 120 121 122 123 124 125

Criminal Procedure Act of 1991, art. 182. Criminal Procedure Act of 1991, art. 188. Criminal Procedure Act of 1991, art. 188 (a). Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 11. Adel El Baradie, Gottes-Recht und Menschen-Recht. Grundlagenprobleme der Islamischen Strafrechtslehre (Baden-Baden: Nomos Verlagsgesellschaft, 1983), 205. El Baradie mentions that later jurisprudence stipulated periods of limitation for private claims ranging from fifteen to thirty-three years. Ibid., 204 n. 377. Ibid., 204. For the following, also see Peters, Crime and Punishment, and Johann Krcsmárik, “Beiträge zur Beleuchtung des Islamischen Strafrechts, mit Rücksicht auf Theorie und Praxis in der Türkei,” Zeitschrift der Deutschen Morgenländischen Gesellschaft 58 (1905), 97–98.

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ecution must take place within six months or one year.126 It is also noteworthy that in the case of sariqa ḥaddiyya two periods of limitation are applied, one concerning the ḥadd punishment (a claim of God) and one related to the compensation for damages (a private claim). While limitation for the former takes effect after a short period of time, there is no limitation for the latter.127 In harmony with Ḥanafī fiqh, the draft Criminal Bill of 1988 stipulates that the lapsing of the limitation period is deemed a “doubt causing the ‘ḥadd’ or retribution (qiṣāṣ) to be remitted …” However, with regard to the limitation periods as such, the draft does not concur with the relevant legal opinions in Ḥanafī jurisprudence, as described above. As to banditry (ḥirāba), ḥadd theft (sariqa ḥaddiyya), and homicide, the relevant ḥadd and qiṣāṣ punishments lapse after seven years, while the respective punishments for apostasy, alcohol consumption, qadhf, and wounding (someone) lapse after six months.128 The relatively long limitation periods for banditry and ḥadd theft stipulated in the Criminal Bill of 1988 do not correspond to the short periods provided for in Ḥanafī fiqh.129 We also observe that the draft makes no distinction between the claims of God and the claims of men. As we have shown, in Ḥanafī fiqh the ḥadd punishment for qadhf does not lapse, because a private claim is concerned, while the ḥadd penalty for alcohol consumption can only be imposed while the smell of alcohol is still discernible. In the Criminal Bill of 1988, with regard to apostasy, a court can determine any period for repentance it deems fit.130 However, since the punishment for apostasy lapses after six months, the judge would have to stay within this six-month period in order to secure a ḥadd punishment. In other words, we have two different periods that must be taken into consideration with regard to apostasy. First, once an act of apostasy becomes known to the judge, before six months have passed after the act that constitutes apostasy, the judge must indict the accused and determine how much time to give the apostate to repent. A second possibility is that an act constituting apostasy becomes known to the court more than six months after the act. In that case, the Criminal Bill of 1988 stipulates that the lapsing of the six-month period constitutes shubha, which averts the ḥadd penalty for apostasy. The majority opinion in the fiqh is, however, that the case against the apostate is only dropped when the (former) apostate has returned to Islam. Limitation for apostasy is formulated in the Criminal Bill of 1988 126 127 128 129 130

See El Baradie, Gottes-Recht und Menschen-Recht, 209. Ibid., 208. Criminal Bill of 1988, art. 49 (a) and (b). Compare El Baradie, Gottes-Recht und Menschen-Recht, 208. Criminal Bill of 1988, art. 129 (2).

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in a way that entails that the apostate will not be punished with the ḥadd punishment once the limitation period of six months has lapsed (and provided the authorities have not been informed about this case of apostasy during that period). Given that all four Sunnī schools are rather unforgiving when it comes to the renunciation of Islam, the authors of the Criminal Bill of 1988 can hardly claim to be in harmony with the sharīʿa here.131 It also remains unclear what the authorities were supposed to do about a person whose ḥadd punishment for apostasy had lapsed but who remained an apostate, that is, he did not recant or return to Islam. Even though a large percentage of al-Turābī’s draft Criminal Bill of 1988 was enacted in 1991, the chapter that deals with limitation periods and pardons was omitted from the Criminal Act of 1991 altogether.132 Stipulations on limitation, however, can now be found in the Criminal Procedure Act of 1991133 (amended in 2002), according to which a conviction automatically lapses (thus becoming null and void) five years134 after the passing of the penalty (min tārīkh inqiḍāʾ alʿuqūba) if the penalty of a prison term does not exceed one year, or in the case of any other crime, provided the penalty does not concern amputation.135 In the case of any other penalty, the conviction lapses after seven years, provided the convicted is not sentenced for any other crime in the meantime. Article 210 (a) and (b) of the Criminal Procedure Act of 1991 was inspired directly from its two predecessor codes of 1983 (Art. 259) and 1974 (Art. 276).136 While in 1974 and 1983 only prison terms up to six months lapsed after five years, in 1991 prison terms up to one year lapsed after five years. The Islamized Criminal Procedure Act of 1983, being a direct copy of its 1974 predecessor in most respects, does not mention Islamic penalties as an impediment to limitation. This was changed in 1991. Now, convictions that carry a possible penalty of amputation are explicitly exempted from limitation. With regard to convictions that carry a possible penalty of more than one year in prison, the Criminal Procedure Act of 1991 is more lenient; these convictions lapse after seven years instead of the ten years provided for in the codes of 1974 and 1983 for cases of prison terms exceeding six months. Neither the Criminal Act of

131 132 133 134 135 136

Criminal Bill of 1988, art. 129 (2) in conjunction with art. 49 (b). See chapter 4, part v of Criminal Bill of 1988. Limitation was also part of the Criminal Procedure Act of 1983. See art. 259–260. Criminal Procedure Act of 1991, art. 210 (a). Criminal Procedure Act of 1991, art. 210 (b). See the commentaries on the Criminal Procedure Act of 1991 by ʿAbdallāh al-Fāḍil ʿĪsā, Qānūn al-ijrāʾāt al-jināʾiyya 91 (Khartoum, 2004), 209 and Y. ʿUmar Yūsuf, al-Wasīṭ fī qānūn al-ijrāʾāt al-jināʾīyya (N.p.: n.p., 2002), 627–628.

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1991 nor the Criminal Procedure Act of 1991 make any other reference to the provisions on limitation to be found in the fiqh. A Supreme Court Case on Limitation in Cases of Alcohol Consumption The important question of limitation in cases of alcohol consumption was decided early in 1984 by the Supreme Court. In the case in question, the head of a police station waited for three days after the crime became known to him before he filed charges for alcohol consumption. Thus, the question before the court was whether the ḥadd penalty for alcohol consumption lapsed because a certain amount of time elapsed between the perpetration of the crime and the notification of the concerned authorities on the one hand and the filing of charges on the other hand. The Supreme Court justified its decision by pointing out that there are four different views among the fuqahāʾ as to the acceptability of the testimony on alcohol consumption or the confession to it: (1) Abū Ḥanīfa and Abū Yūsuf137 reject the testimony and accept the confession. (2) The testimony is rejected and the confession is accepted even in cases where a substantial amount of time has passed (ḥattā bi-l-shurb al-qadīm) (alShaybānī).138 (3) The testimony and the confession are accepted, according to the views of al-Shāfiʿī, Mālik, and Aḥmad b. Ḥanbal. (4) The testimony and the confession are rejected (Ibn Abī Laylā). Motivated by the circumstances of the case (the police did not have a convincing explanation for their delay in filing charges), in its final judgment the Supreme Court annuled the conviction for alcohol consumption and ordered the release of the defendant. It based its judgment on Abū Ḥanīfa’s opinion that the smell of alcohol must be discernible at the time of giving testimony and that the time limit, or statute of limitations, passed when the smell disappeared. In other words, the Supreme Court did not adhere to the majority opinion of the fuqahāʾ, but rather on a minority that allowed it to annul the verdict and release the defendant.139 Evidence General Rules of Evidence in the fiqh The burden of proof is on the plaintiff who must prove his claim either through the confession of the defendant or by the testimony of witnesses.140 The qāḍī’s own knowledge (ʿilm al-qāḍī) is admitted as proof, but this can only lead to 137 138 139 140

Abū Yūsuf (d. 798). Al-Shaybānī (d. 805). Government of the Sudan vs. ʿAbd al-Wahāb ʿAwaḍ Jādīn, sljr (1984). For the following, see Peters, Crime and Punishment, 12–19.

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a sentence for Ḥanafīs and Shāfiʿīs. There are conditions that relate to the validity of testimonies. The witnesses must be either two adult male Muslims or one adult male Muslim and two adult female Muslims. In either case, they must be of good reputation (ʿadl). Their testimonies must not contradict each other, and contradictions between testimonies, even small ones, invalidate the testimony. While the testimony must be given in the presence of the qāḍī, a testimony to the admission of the defendant and a testimony to the statements of two other witnesses out of court (shahāda ʿalā l-shahāda) are admissible. However, the witnesses must fulfill the qualifications mentioned above. An oath can have corroborative force, under specific conditions. If the plaintiff has only one witness, the testimony of the second one can be replaced by the plaintiff swearing an oath. Except for the Ḥanafīs, all schools accept this principle. In reverse, if the plaintiff cannot prove his claim, the defendant can swear an oath that he is innocent and the qāḍī will decide in his favor. If the defendant refuses to swear an oath, the claim will be upheld.141 These rules on oaths are also applicable in cases resulting in diya, but not in cases of ḥadd and qiṣāṣ crimes, where higher standards of proof are applied. An exception with regard to oaths is the qasāma procedure. In the qasāma procedure, fifty oaths are sworn in order to determine the liability for a killing when the body of a person is found who is obviously the victim of a violent death and when there is strong suspicion with regard to the killer. Circumstances leading to a qasāma procedure can be the presence/proximity of another person with blood on his clothes and carrying a blood-stained weapon such as a knife. Or in cases in which a victim is found lying on the ground after a group of people, which subsequently scattered, were seen close to it.142 The qasāma procedure can also complement other, incomplete, evidence, such as the last statement of a dying crime victim or the single testimony of a qualified witness to the killing. The schools differ with regard to who must swear the oath. According to the majority of schools, with the exception of the Ḥanafīs, it is the plaintiffs who must swear the fifty oaths. Thus, in cases in which there is a strong suspicion of the identity of the killer, the plaintiff must first prove the circumstances that led to the accusation. The plaintiffs must then swear fifty oaths in order to support their claim, which, consequently, establishes the right to diya. In the Mālikī and Shāfiʿī schools, the qasāma procedure can be punished by qiṣāṣ (i.e., a death sentence). In this case, however, the plaintiffs must swear that the killing was

141 142

Ibid., 13. Ibid., 17. On qasāma see also Aḥmad Fatḥī Bahnasī, Naẓariyyat al-ithbāt fī l-fiqh al-jināʾī al-islāmī (Cairo and Beirut: Dār al-Shurūq, 1989), 227–237.

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intentional. The Ḥanafīs hold that the oath should be sworn by the defendants. When a body showing signs of a violent death is found on someone’s land, in a quarter of a city or close (within shouting distance) to a village, the plaintiffs can file a suit against either the owner of the land or other inhabitants of the quarter or village. If the defendants deny the charges, the plaintiffs can demand fifty oaths of denial, to be sworn either by fifty inhabitants of the village or the quarter or by the owner of the house or land. Once the oath(s) are sworn, diya is due. As described above, in Ḥanafī law, the qasāma procedure cannot lead to qiṣāṣ (i.e., a death sentence). In cases in which a dead body is found on private property (e.g., outside or inside a house), according to some Ḥanafīs, the ʿāqila is liable; according to other Ḥanafīs, the owner or inhabitant of the house is liable.143 The Evidence Act of 1983 The Evidence Act of 1983 recognizes, inter alia, the following methods of proof: confession, the testimony of witnesses, (supporting) documents, circumstantial evidence (qarāʾin), oaths, observations (muʿāyina), or expertise (khibra). This list is in addition to the evidence specified in the fiqh described above. According to the Evidence Act of 1983, a confession in criminal cases is not legally valid if it is elicited under duress.144 This principle, however, contradicts another section of the Evidence Act, which states that “acceptable evidence” is not rejected because it has been obtained by illegal means, as long as the court is convinced that the evidence is sound. This seems to indicate that evidence obtained by torture or other illegal means can be accepted by the court.145 The withdrawal of a confession in a civil case is not legally valid.146 In criminal cases, however, the withdrawal of a confession is considered a legal uncertainty (shubha), which makes the confession inconclusive evidence (bayyina ghayr qāṭiʿa).147 With regard to the qualifications of the witness, the Evidence Act of 1983 simply states that “… is qualified to bear testimony every person with a sound mind (ʿāqil) who is able to distinguish the facts (mumayyiz) he is bearing testimony to.”148 The Evidence Act does not specify the minimum number of witnesses in criminal cases, nor does it mention their sex or religion. The circumstances of the testimony, however, can be taken into account by the court. 143 144 145 146 147 148

Peters, Crime and Punishment, 18. Evidence Act of 1983, art. 24 (2). Evidence Act of 1983, art. 11. Evidence Act of 1983, art. 26 (1). Evidence Act of 1983, art. 26 (2). Evidence Act of 1983, art. 28.

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More specifically, the court must assess the good reputation (ʿadāla) of the witness, his behavior while giving his testimony, and possible contradictions with other evidence.149 The text of this article does not clearly state that the good reputation of a witness is an indispensable precondition for the acceptance of his testimony by the court. In other words, if we follow the text of the Evidence Act of 1983 alone, testimonies of witnesses with a bad reputation can be accepted in criminal cases. Below we see how the Supreme Court interpreted the notion of “good reputation” and whether or not this interpretation comes close to what the fuqahāʾ originally intended. The testimony of the person against whom flogging has been carried out in a case of qadhf is not admissible unless that person’s repentance has been proven.150 The two opponents have the right, at any stage of the trial, to demand that the other litigant swear a decisive oath (al-yamīn al-ḥāsima).151 If the litigant on whom the oath is due swears, the trial ends in his favor.152 In turn, whoever is bound to swear an oath and refuses to do so, without reverting to his adversary the duty to take the oath, will lose his case. The one to whom the oath has been reverted (radd alyamin), and who refuses to do so, will also lose his case.153 It is evident that since no minimum number of witnesses is specified in the Evidence Act of 1983, the function of the oath is not to replace a second missing witness, but to decide a case. It is also striking that the requirements for the proof of qiṣāṣ crimes (i.e., homicide and bodily harm) in the Evidence Act of 1983 are not higher than that for other crimes. This considerably facilitates the applicability of qiṣāṣ and is clearly in conflict with the corresponding provisions of the fiqh for these crimes. According to Ḥanafīs and Shāfiʿīs, the knowledge of the qāḍī, regardless of how he acquired it, plays an important role in criminal cases relating to diya.154 The Evidence Act of 1983, however, explicitly prohibits the qāḍī from using his personal knowledge to make judgments, without regard to whether the case results in the application of qiṣāṣ or in the payment of diya.155 Notably, the qasāma procedure, an important element of the Islamic law of evidence, is not mentioned in the Evidence Act of 1983. Qasāma did, however, play a limited role in Supreme Court decisions.156 The Evidence Act of 1983 does not explicitly

149 150 151 152 153 154 155 156

Evidence Act of 1983, art. 33. Evidence Act of 1983, art. 32 (2). Evidence Act of 1983, art. 58. Evidence Act of 1983, art. 63 (1). Evidence Act of 1983, art. 63 (2). And the Shiʿīs. Evidence Act of 1983, art. 16. In the last decision on qasāma I could trace, dating from 1988 (Government of Sudan vs.

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discriminate against non-Muslims. However, it reserves an “escape clause” by stating that it is “allowable [for] the court to reject acceptable evidence (bayyina maqbūla) when it considers it to be violating the principles of the Islamic sharīʿa or (the principles of) justice or public order.”157 As mentioned earlier, the Evidence Act of 1983 did not distinquish between cases involving diya and those involving qiṣāṣ. Thus, it is unclear what the minimum requirements for proof in qiṣāṣ cases concerning homicide and bodily harm are. The following Supreme Court cases clarified this important question to some degree. Evidence in the Supreme Court—The Qualifications of the Witnesses As shown above, one of the important features of the Islamic law of evidence is the requirement that witnesses in criminal cases be of good reputation (ʿadl). The following two landmark cases show how the notion of ʿadl was interpreted by the Sudanese Supreme Court and what kind of witnesses are acceptable to them and which are not. In the first case158 the original indictment of ḥadd theft, intentional homicide, and criminal intimidation159 was changed to one of abetment, because the crimes in question had not yet been committed.160 In his appeal the defense lawyer argued that the court had relied entirely on evidence based on the testimony of professional criminals and that the crime as such never took place. In its deliberations on the case the Supreme Court pointed out that the trial court indeed had doubts about the good reputation (ʿadāla) of the witnesses. The court therefore only took into account those parts of their testimony that were corroborated by the testimony of another witness of the prosecution, a police

157 158 159 160

Badr al-Dīn ʿAbbās Abū Nūra, sljr (1988), no. 1406/69), the Supreme Court decided that qasāma—since the Evidence Act of 1983 did not mention it—was not admissible as a way of proof in criminal matters. For earlier decisions, some of which came to the conclusion that qasāma was indeed applicable under Sudanese law, see, (1) Government of the Sudan vs. Ibrāhīm Ādam ʿUthmān a.o., sljr (1984), no. 1984/83; (2) Government of the Sudan vs. ʿUthmān al-Zubayr, sljr (1985), no. 1405/602; (3) Government of the Sudan vs. Awhāj Muḥammad a.o., sljr (1985), no. 1405/151. Evidence Act of 1983, art. 12. Government of the Sudan vs. Mubārak Muḥammad Khayr, sljr (1992), no. 1992/62. See Penal Code of 1983, art. 439, 251, and 321. See Penal Code of 1983, art. 82/83 and 91. Interestingly, the offense happened shortly before the new Criminal Act of 1991 was introduced. The Khartoum criminal court that originally dealt with the case therefore sentenced one of the accused under the Criminal Act of 1991, art. 25(2), despite the fact that the Criminal Act of 1991 was not yet in force when the offense happened. In the appeal stage, however, the indictment was changed back to the relevant articles on abetment of the Penal Code of 1983.

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officer. The Supreme Court held that the testimony of persons who do not fulfill the minimum requirements of ʿadāla are not automatically rejected, rather, parts of their testimony can be taken into account if they are supported by other, reliable and corroborative evidence. However, the Supreme Court specified that the testimony of those who obviously lie must not be accepted. In the second case161 the Supreme Court discussed under what circumstances the testimony of a drunk person is acceptable. In this case the defendant, ʿAbd al-Ḥamīd Mūsā Aḥmad, was sentenced to death by hanging for intentional homicide (Art. 251, Penal Code of 1983), i.e., for having knifed his victim to death, after the heirs of the victim refused to pardon the culprit or settle for financial compensation. The homicide happened close to a place where marissa, the traditional Sudanese beer, was sold. The lawyer of the defendant argued that two key testimonies were not admissible. One of the witnesses was, according to the lawyer, a quarrelsome drunkard who could not be considered to have a good reputation (ghayr ʿādil). The lawyer claimed that witnesses in cases of intentional homicide must, necessarily, be of sound mind, adult, discerning, of excellent behavior, pious, and neutral (i.e., without vested interests in the case). Further, the legal representative of the defendant suggested that the testimony of an underage witness should not be accepted because the witness lacked the required legal capacity (ahliyya). The Supreme Court, however, thought otherwise. It pointed out that while the necessary number of witnesses was specified by the Evidence Act of 1983 in cases of ḥadd crimes, no minimum number witnesses was specified for qiṣāṣ crimes.162 Further, the Supreme Court admitted that the majority opinion in the fiqh put the threshold for the proof of qiṣāṣ crimes as high as the one for ḥadd crimes. The Supreme Court emphasized that Criminal Circular 83/88, however, releases the courts from adhering to a specific school of law in this matter. To give its own reasoning a fiqh-based justification, the court quotes Ibn Qayyim (al-Jawziyya),163 who held that equal requirements for the proof of qiṣāṣ and ḥadd crimes are detrimental to the claims of God and the claims of men. In addition, it quotes a Supreme Court precedent164 in which the majority opinion of the fuqahāʾ was also not taken into account and the requirements for proof of a qiṣāṣ crime were lower than for a ḥadd crime. Finally, the Supreme Court quoted Article 28 of the Evidence Act of 1983 which specifies that a witness must be of sound mind (ʿāqil) and 161 162 163 164

Government of the Sudan vs. ʿAbd al-Ḥamīd Mūsā Aḥmad, no. 104/88, sljr (1988). See Evidence Act of 1983, art. 78 and 28. Ibn Qayyim al-Jawziyya, was a Ḥanbalī scholar (1292–1350) who supported broad powers for the state and prosecution. Trial of Ādam Mahdī Ādam, no. 88/36, not published.

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discerning “when enumerating the facts” (of the case). Since the witness in question (and all other witnesses) were of sound mind and discerning when testifying before the Supreme Court, it deemed the testimony acceptable. However, the text of Article 28 reads differently. It says that “every person of sound mind and discerning with regard to the facts he or she is bearing testimony to is qualified to testify.” In other words, it is not enough to appear in a sober state before the court when testifying. The witness must be able to discern the facts when he witnesses the crime in question. The court did not discuss whether this was the case with regard to the contested testimony. The Supreme Court thus accepted both testimonies, one by a known drunkard and the other by an underage child. While the court could invoke the Evidence Act, a criminal circular, and a precedent, it clearly contradicted the majority opinion in the fiqh by lowering the standards of proof for a qiṣāṣ crime. The death sentence by hanging was confirmed. Further, the decision specified that drinking alcohol does not automatically make a witness unrighteous. The absence of righteousness is only assumed when someone is addicted to alcohol and the addiction is obvious to other people. In that case, the testimony of the (habitual) drinker is to be rejected. The principle that the testimony of a drunk person is not automatically invalidated has been upheld outside criminal law proper as well. In a third case, a divorce case, the Supreme Court ruled that the testimony of a drunk person was not to be rejected merely because the witness was drunk at the time he witnessed the events in question. Drunkenness as such, according to this judgment, does not automatically strip a witness of his good reputation. Rather the credibility of the testimony is the decisive factor regarding whether or not a testimony is accepted. If the testimony is credible, it is accepted, even if the witness was drunk when he witnessed the crime. By contrast, a testimony is rejected if it must be assumed that the witness is lying, even if the witness meets the minimum legal requirements of righteousness.165 Admissibility of an Oath as Evidence In a case from 1986, the Supreme Court decided what role an oath can play in qiṣāṣ and ḥadd cases and what the legal consequences of such an oath can be.166 In the case under discussion the two culprits were sentenced to the diminished diya (al-diya al-nāqiṣa) for intentional bodily harm with a

165 166

See sljr (1993), case no. 220/1993, issued 20 Nov. 1993. It should be noted that the Evidence Act of 1993 is applicable in civil and criminal cases, see article 3(1). Government of the Sudan vs. Maḥmūd ʿAlī Sanūsī a.o., sljr (1986), no. 1986/296.

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dangerous weapon, in addition to a two-month prison term and 25 lashes.167 According to the testimony of the plaintiff, they had, together with a third perpetrator, assaulted their victim (i.e., the plaintiff) in the early morning, beaten him with a club until he fell from his riding animal; they subsequently stole 5,000 Sudanese pounds from his pocket. After they were arrested all three denied the deed. While the first two accused were sentenced, the third was released. The appeal was made on two grounds. First, the lawyer of the perpetrators asserted that it was not admissible to base a conviction on the statement of the plaintiff only. As a claimant, he was party to the case and not a witness. Second, there was no evidence on which to base a conviction. In its review of the case the Supreme Court judges remarked that the lower court had rejected two different requests. The lower court had refused the request of the lawyer of the two accused to set them free for lack of evidence. It had also rejected the request of the lawyer of the plaintiff to demand an oath from the accused, this despite the fact that the Criminal Procedure Act of 1983 provides for the possibility of an oath in cases such as this.168 To the indignation of the Supreme Court judge, the original court had cited, as justification, that an oath could be demanded in ḥadd cases, even though the crime it judged under Article 279 was a qiṣāṣ crime. Their decision was thus incomprehensible; the lower court had not provided the Supreme Court with the necessary arguments to substantiate which particular opinion in the fiqh they had followed. In addition, their conclusions explicitly contradicted the provisions of Article 200 of the Criminal Procedure Act of 1983, which provides for the possibility to demand an oath of the accused. If the accused refuses to swear such an oath he can be sentenced on the strength of his refusal.169 Subsequently, one of the Supreme Court judges discussed the various opinions he found among the fuqahāʾ who differ about the question of whether a sentence can be based on the fact that the defendant refuses to swear (nukūl) and asked the plaintiff to swear an oath.170 Mālik holds that this oath, returned to the plaintiff, is not admissible with regard to crimes, neither in ḥadd or qiṣāṣ nor in taʿzīr crimes. In other words, if there is no other evidence (than the testimony of the victim himself) and the accused refuses to swear an oath, there is no need to return the oath to the plaintiff, since such an oath 167 168 169 170

Penal Code of 1983, art. 279. As foreseen by Criminal Procedure Act of 1983, art. 200. Also see Evidence Act of 1983, art. 61–63. Criminal Procedure Act of 1983, art. 200. Often the judges quote, among other sources, ʿAbd al-Qādir ʿAwda, al-Tashrīʿ al-jināʾī lislāmī muqāranan bi-l-qānūn al-waḍʿī (Beirut: Muʿassasa al-Risāla, 2001), 2:341.

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would not have any legal effect, according to Mālik. In contrast, al-Shāfiʿī holds that a judgment can be based on a returned oath for crimes, however, only when the rights of men are concerned, as in cases of homicide, beatings, and abuse, and irrespective of whether the punishment is qiṣāṣ or taʿzīr or the case results in diya. By analogy, the same applies to taʿzīr crimes related to public affairs, such as blocking a public road with rocks or sabotaging public wells. Ḥadd crimes, however, cannot—according to al-Shāfiʿī—be decided on the basis of a returned oath, except in a few exceptional cases.171 Having quoted these controversial opinions, the Supreme Court explained its own view of the legal effects of oaths in criminal matters. It reasoned that if there is no other evidence, it does not object if the plaintiff demands an oath from the defendant in ḥadd, qiṣāṣ or taʿzīr crimes. The Supreme Court asked, if the goal of the judgment is justice, why would one prevent the accused from making use of the only evidence he has at his disposal, that is, making his opponent swear an oath. In such cases the oath serves as substitute evidence (badīl li-l-dalīl) and the plaintiff can only resort to it if there is no other evidence (than his own testimony) available. While the Supreme Court holds that the oaths described above can be used as substitute proof even in ḥadd and qiṣāṣ cases, for both cases it clearly limits its evidential value, which only pertains to financial rights and can only lead to a taʿzīr punishment. Therefore, according to the Supreme Court, the promulgation of a ḥadd or a qiṣāṣ punishment on the strength of an oath is excluded. However, a taʿzīr punishment for bodily harm, as in the case at hand, is possible. The two accused presented witnesses who testified that they had been together at the time of the crime. This claim, the judge pointed out, could have been decided if the two accused had been asked to swear an oath. In its final conclusion, for the reasons described above, the Supreme Court overturned the conviction and the penalty (al-idāna wa-l-ʿuqūba) of the two defendants and ordered their release. It decided likewise to annul the release order of the third defendant. All three were to be handed over to the police where they were to swear an oath (of innocence). The Evidence Act of 1993172 A comparison between the most important prescriptions of the fiqh on proof in criminal cases and those of the Evidence Act of 1993 shows a number of substantial differences from its 1983 predecessor. First, apart from a special

171 172

The Supreme Court decision does not define these cases. The following refers to the general rules of proof applicable in criminal cases with regard to qiṣāṣ and diya.

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section on proof of ḥadd crimes, the Evidence Act of 1993 does not distinguish between proof in civil cases and proof in criminal, including qiṣāṣ, cases. Article 3 (1), of the Evidence Act of 1993 explicitly states that the evidence act is to be applied in civil and criminal matters. The classical means of proof, such as testimony, confession, oaths, as well as supporting documents, circumstantial evidence (qarāʾin), observation (muʿāyina), and expert opinions (khibra), are acknowledged, albeit with important qualifications. The use of evidence based on the personal knowledge of the qāḍī, however, is excluded, as in the Evidence Act of 1983.173 As we have seen above, according to Ḥanafīs and Shāfiʿīs, the personal knowledge of the qāḍī plays a role in cases of diya. The qasāma procedure, which still played a limited role in jurisdiction, but not in legislation after the introduction of Islamic criminal law in 1983, was not introduced in the Evidence Act of 1993. A general section on evidence stipulates that evidence violating the principles of the sharīʿa, the law (qānūn), justice, or public order is not admissible.174 The same section, similar to the Evidence Act of 1983, further states that evidence is not rejected merely because it was obtained by unlawful means.175 Ultimately, this means that a confession obtained by torture can be used if the court decides that it is acceptable evidence. Article 20 (b), on the other hand, explicitly excludes this possibility: a confession obtained by force or instigation is not legally valid.176 The Evidence Act of 1993 distinguishes between the judicial confession (iqrār qaḍāʾī) and the non-judicial confession (iqrār ghayr qaḍāʾī). The former—with regard to criminal cases177—takes place in a court session or before a judge.178 A confession does not constitute conclusive evidence (bayyina qāṭiʿa) in a criminal case if the confession is made outside a court session or if it is not made before a judge (i.e., ghayr qaḍāʾī).179 The 173 174 175 176

177

178 179

Evidence Act of 1993, art. 9 (b). Evidence Act of 1993, art. 9 (a). Evidence Act of 1993, art. 10 (a). The latter would be valid in civil cases. See art. 20 (3). Human rights reports corroborate that torture is indeed common practice. Human Rights Watch stated in its 1999 report that “Confessions coerced through torture and ill-treatment were admissible in trials ….” Human Rights Watch, World Reports 1989–2010 (New York, Washington, London, Brussels: Human Rights Watch, 1989–2010). Torture cases have been reported in almost all Human Rights Watch reports since 1989. Article 16 (a) also allows for the possibility of a confession before a “semi-judicial authority,” but it does not explain or define it. In criminal cases, however, a confession before a semi-judicial authority is not recognized. See Evidence Act of 1993, art. 10 (b). The term is not explained or defined in the Evidence Act of 1993. Evidence Act of 1993, art. 21 (3).

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Evidence Act of 1993 explicitly states that it is not admissable to withdraw a confession in civil cases, in contrast to ḥadd cases, where the withdrawal of a confession constitutes a legal uncertainty (shubha) and renders the confession inconclusive as evidence.180 The confessor must be sane (ʿāqil), free to choose (mukhtār), not placed under guardianship, and must have reached the age of legal responsibility as prescribed by the law.181 As to the qualifications of the witness, the 1983 text remains unchanged: “Every person who is able to distinguish the facts he is bearing testimony to is qualified to give testimony.”182 No minimum number of witnesses in criminal cases is specified, nor is the sex or the religion183 of the witness an issue. We have seen above that the requirements for the admissibility of testimonies are rather strict in the fiqh, which specifies that testimony is only admissible if at least two adult male Muslim witnesses of good reputation testify or one male and two females with the same qualifications. By neither defining a minimum number, nor the sex or religion the Evidence Act of 1993, like its predecessor, substantially lowered the requirements of proof in criminal cases, in comparison with the fiqh. At the same time, in the Evidence Act of 1993, Muslims and non-Muslims, men and women are now treated equally with regard to testimonies in non-ḥadd criminal cases. As in 1983, the qāḍī must consider all circumstances of the testimony, including the possibility that the witness lacks a good reputation or that there are contradictions in his testimony or behavior while he is bearing witness.184 As before, the text of the law does not define “good reputation” clearly and in which cases “good reputation” is an indispensable prerequisite for the acceptance of the testimony. It remains largely unclear whether “good reputation” plays a more important role in criminal than in civil cases or whether testimonies of witnesses who lack a good reputation should be rejected in criminal cases. Further, we cannot determine if any difference is made (with regard to the quality of the witnesses) between cases resulting in qiṣāṣ and those resulting in the payment of diya. It is also not clear whether the provision that the judge must pay attention to contradictions in testimonies means that these tes-

180 181 182 183

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Evidence Act of 1993, art. 22 (1) and (2). The article is silent with regard to the legal effects of a withdrawn confession in qiṣāṣ cases. Evidence Act of 1993, art. 19. Evidence Act of 1993, art. 24. The Evidence Act of 1993 does not state that a non-Muslim witness can only testify against a non-Muslim witness. Thus, a testimony of a non-Muslim witness against a Muslim is possible. See Evidence Act of 1993, art. 24. Evidence Act of 1993, art. 34.

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timonies are not admissible. By contrast, fiqh is unequivocal here, the slightest contradiction in testimonies renders them invalid.185 The testimony of the person who has been flogged for having committed qadhf and of the person who has given false testimony is not admissible, unless their repentance has been proven.186 With regard to oaths, the procedure in 1993 remained largely the same as it was in 1983.187 The plaintiff, upon whom lies the burden of proof, can direct a “decisive oath” (al-yamīn al-ḥāsima) against his opponent.188 If the party on which it is due swears the decisive oath, the trial ends in his favor.189 Whoever refuses to swear the decisive oath that has been requested of him without returning the demand that his opponent swear an oath loses the lawsuit, as does every person to whom the duty to swear an oath is reverted and who refuses to do so.190 The court is further allowed to demand of its own accord a supplementary oath from one of the two litigants in order to obtain evidence corroborating the subject of the claim.191 Two important conditions for the admissibility of this oath relate to the other proof: the case cannot be devoid of any proof, nor can there be complete and conclusive proof available.192 Unlike the aforementioned oath, this supplementary oath demanded by the court, cannot be returned to one’s opponent.193 Evidence in qiṣāṣ and ḥadd Cases Evidence of qiṣāṣ and ḥadd Cases in the fiqh While the general rules of evidence outlined above apply to criminal cases, including those involving diya, these rules of evidence are much stricter in cases of retaliation. For cases of retaliation, the testimony of a witness cannot be replaced by the oath of the plaintiff, neither does the refusal of the oath (nukūl al-yamīn) of the defendant constitute admissible evidence. Further, the shahāda ʿalā l-shahāda and testifying to the declarations of others

185 186 187

188 189 190 191 192 193

Peters, Crime and Punishment, 12. Evidence Act of 1993, art. 33 (2). The following articles on oath seem to go back to similar laws at the time of the Condominium. However, since the relevant texts are not in my possession I was not able to verify this assumption. Evidence Act of 1993, art. 54. Evidence Act of 1993, art. 57 (2). Evidence Act of 1993, art. 57 (3). Evidence Act of 1993, art. 58 (1). Evidence Act of 1993, art. 58 (2). This has been taken almost literally from the Evidence Act of 1983, art. 63 (2). Evidence Act of 1993, art. 58 (3).

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are not allowed in cases that are punishable by qiṣāṣ. Only eyewitnesses are admitted.194 As we showed above, unlike in the fiqh, the two evidence acts under scrutiny do not distinguish between regular criminal cases and qiṣāṣ with regard to proof. Ḥadd crimes have the most stringent requirements for proof.195 Next to the above rules applicable in qiṣāṣ cases, the qāḍī’s own knowledge cannot decide a case. The wording of the testimony must explicitly use certain terminology; for example, the word zinā (and not any other word pertaining to sexual intercourse) must be used in a confession to unlawful sexual intercourse. Further, the unlawfulness of the act which is the object of the confession must be expressed. Testimonies outside the court, which are valid in homicide cases, are not valid in ḥadd cases. The proof of ḥadd crimes is also made very difficult by the fact that a confession can be withdrawn at any time (and thus annul the sentence, but not the civil liability), up until the execution of the sentence. Judges are even obliged to make this possibility clear to the confessor. Circumstantial evidence is not admissible in ḥadd cases, with two exceptions. The Mālikīs accept the pregnancy of an unmarried woman (not in the ʿidda period), as proof of zinā. With regard to drinking alcohol, the Mālikīs and the Ḥanbalīs accept the testimony of two witnesses to the smell of alcohol as proof that a person has consumed alcohol.196 In order to prove the consumption of alcohol, a confession is necessary—made while sober. The testimony of a male and a female witness is not sufficient. The judge must make sure, during his interrogation of the witnesses, that the culprit did not drink while in the dār al-ḥarb, or under duress. Furthermore, the mere discernability of the smell of alcohol does not constitute proof of the consumption of alcohol if the witnesses did not see him actually drinking. As to confessions, Abū Ḥanīfa and the Mālikīs are satisfied with a single confession, while Abū Yūsuf requires two confessions made separately in two different sessions. As in other ḥadd crimes, again the judge is obliged to ask about the circumstances of the crime, that is, in this example, drinking. He asks if the defendant withdraws his confession, and if so, his withdrawal is accepted and the ḥādd penalty is averted. If the drunkard in a state of intoxication confesses to having committed a ḥadd crime, the fiqh distinguishes between the ḥudūd which relate to the rights of God and those concerning the rights of men, such as qadhf. In the former case, that is, in cases of unlawful sexual intercourse, theft, and alcohol consumption, his confession is not accepted and he does not receive the ḥadd penalty,

194 195 196

Peters, Crime and Punishment, 13. For the following, see ibid., 13–16. Ibid., 15.

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because a statement made while in a state of intoxication may be a lie. Here the reasoning of the fuqahāʾ, meant to limit the applicability of ḥadd crimes, leads to the paradoxical result that the intoxicated person is not allowed to admit to his own drunkenness. If the drunkard confesses to a ḥadd crime that concerns the rights of men, such as an unfounded accusation of unlawful sexual intercourse (qadhf ), the ḥadd for qadhf is to be executed, provided the victim of the accusation files charges. In this case limitation (taqādum) does not apply, nor does the withdrawal of the confession avert the ḥadd.197 If the requirements of evidence are not fulfilled in a ḥadd case, the judge can nevertheless sentence the culprit to a taʿzīr punishment if the available evidence suggests that the accused committed the crime. In this case, the general requirements of proof are applicable. With regard to the number and qualifications of witnesses who can testify to a ḥadd crime, they vary slightly.198 In cases of qadhf, sariqa, ḥirāba, and shurb al-khamr, admissible evidence is either a confession or the testimony of two men of good reputation. The testimonies of women are, however, excluded.199 The most stringent requirements are applicable in zinā cases, which can be proven by two means, either by a confession or through the testimony of witnesses or, according to the Mālikīs, by the pregnancy of an unmarried woman.200 With regard to confessions, Abū Ḥanīfa and Aḥmad b. Ḥanbal are of the opinion that the confession must be made four times, while Mālik and al-Shāfiʿī accept one confession only. According to Abū Ḥanīfa, the four confessions must be made in four different sessions, Aḥmad b. Ḥanbal accepts them in one session or in different sessions, as long as they are four. In order to be accepted, the confession must be detailed to a degree that removes any doubt to its soundness. The confessor also must state explicitly that he committed zinā, that is, the word zinā must be used.201 However, it is not necessary that the person who committed zinā with the confessor be present in the session of the confession. Thus, the ḥadd penalty can nevertheless be imposed on a man who confesses to zinā with a woman who is absent during the confession. The same is true for the confession to zinā if the person zinā was committed with is unknown to the confessor. If a man confesses to zinā and the woman in ques-

197 198 199 200 201

Aḥmad Fatḥī Bahnasī, al-Masʾūliyya al-jināʾiyya fī l-fiqh al-islāmī (Cairo and Beirut: Dār al-Shurūq, 1988), 227–228. For the following, see Aḥmad Fatḥī Bahnasī, al-Jarāʾim fī l-fiqh al-islāmī (Cairo and Beirut: Dār al-Shurūq, 1988). The possible testimony of women in cases of qadhf is controversial among the Mālikīs. See Bahnasī, al-Jarāʾim, 173–174. Rafael Arévalo, Derecho Penal Islamico, Escuela Malekita (Tangier: F. Erola, 1939), 89. ʿAwda, al-Tashrīʿ, 2:433.

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tion accuses him of lying, his confession is valid and the ḥadd is due according to Abū Yūsuf, Mālik, al-Shāfiʿī, and Aḥmad b. Ḥanbal. Abū Ḥanīfa sees in the latter case a legal uncertainty and therefore holds that the ḥadd penalty on the confessor must lapse. Furthermore, the person who confesses must confess of his own free will (mukhtār) and he must be sane. The confessor can withdraw his confession at any time, either before or after the trial or before or during the execution of the punishment. If he withdraws his confession, the implementation of the punishment must be stopped immediately. It should be noted that the withdrawal can be explicit, for example, a denial of the former confession. However, the withdrawal can also be implicit (dalālatan), for example, when the person being punished for zinā runs away from the stoning or the flogging. The escape (from the implementation of the punishment) is taken as an indication that he withdraws his confession.202 In order to prove zinā by testimony, four male witnesses must describe persons, time, place, and order of events of the sexual intercourse in detail and without contradicting each other. Should the witnesses not fulfill one or more of these conditions they could be liable for qadhf. General Rules for the Proof of ḥadd Crimes in the Evidence Acts of 1983 and 1993 In both laws of evidence, apart from zinā and shurb al-khamr, all other ḥudūd can be proven in two ways. First, by a confession made at least once and, second, by the testimony of either two male witnesses, or, in the case of necessity, one man and two women or four women.203 The wording of the two articles in the evidence laws is almost identical. In 1983, it was sufficient to make the confession, without further qualification, in a majlis al-qaḍāʾ, which was the lowest level of a five-level penal court system.204 In 1993, this was changed such that the confession must be made before a court.205 In other words, any confession outside of court is considered invalid and cannot be held against the defendant. Further, the Evidence Act of 1993 specifies that the confession must be unequivocal (iqrār ṣarīḥ). Thus, the Evidence Act of 1993 improved on the wording and now excludes confessions that might be doubtful or not unequivocal. These are also not accepted by the fuqahāʾ. More importantly, a comparison with the above shows that the 1983 and 1993 laws of evidence contradict two 202 203 204 205

Ibid., 2:438. See Evidence Act of 1983, art. 78, and Evidence Act of 1993, art. 63. See Criminal Procedure Act of 1983, art. 8. Which could be any court in a seven-level court system. See Criminal Procedure Act of 1991, art. 6.

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main principles upheld in the fiqh: they allow for the testimony of women and they do not make ʿadāla or good reputation a precondition for the acceptance of a testimony in ḥadd crimes (other than zinā and alcohol consumption to some degree, for details, see below). The Evidence Act of 1993 makes the reservation that the testimony of a man and two women or four women is only accepted in the case of necessity.206 It does not, however, specify how necessity (ḍarūra) is to be understood by the judge. A criminal circular specifies that a case of necessity occurs when a sufficient number of male witnesses is not available.207 Likewise a commentary published by the Sudan judiciary explains that necessity for the acceptance of female witnesses occurs when no men or not enough men testify. Then the testimony of four women replaces the testimony of (the originally required) two men, or if one man testifies, two women replace the testimony of the second male witness.208 In other words, proof of a ḥadd crime by means which are not admitted by the majority of the fuqahāʾ became accepted procedure in the Islamized Sudanese Evidence Act of 1983 and Evidence Act of 1993. How does the commentary of the Sudanese judiciary, mentioned above, address the textual basis of female testimonies? It rather frankly concedes that the jurisprudents of the four Sunnī schools and those of the Zaydīs and the Twelver Shīʿīs agree, unequivocally, that the testimony of women in ḥadd cases are not admissible. Furthermore, there is a minority opinion held by the Ibāḍiyya, Ibn Ḥazm, and Ḥasan al-Baṣrī. Finally, the commentary concludes, rather daringly, that the Law of Evidence has adopted the majority opinion [of the fuqahāʾ] in not accepting the testimony of women with regard to the ḥudūd, but accepting the testimony of women only if the testimony of men is not available; and [accepting] the testimony of women together with the testimony of men if the required number (niṣāb) of male testimonies is not reached. [This is] according to the opinion of Ibn Ḥazm.209 Clearly, the alleged coexistence of a majority opinion and a minority opinion is a novel approach in the codification of fiqh-based rules, though it is entirely unconvincing. Also, having recourse to legal opinions of the Ibāḍiyya and the 206 207 208 209

Evidence Act of 1993, art. 63 (b). With regard to the acceptability of the testimony of women and non-Muslims, this is discussed in the section on proving ḥadd theft. See al-Sulṭa al-qaḍāʾiyya, Lajna taʾṣīl al-qawānīn: taʾṣīl qānūn al-ithbāt li-sana 1993 (N.p., n.d.), 234–235. Ibid.

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Ẓāhiriyya, that is, legal opinions represented by a small minority of Islamic jurists, stretches the principle of takhayyur to the limit.210 Next to the acceptance of female testimonies, the inherent possible acceptance of witnesses who do not fulfil the conditions as devised in the fiqh, that is, who are not of good reputation, diverges from the majority opinion in Islamic jurisprudence.211 In order to clarify this obvious lacuna, Criminal Circular no. 98/1983 on sariqa stipulates that a witness is assumed to be of good reputation unless there are indications contradicting this assumption.212 In effect, the judge can accept the testimony of a witness unless he himself knows, through his own knowledge or other information, that the reputation of the witness is questionable. The wording of the circular follows a minority opinion of the Ḥanafīs and the Ẓāhirīs, who hold that the good reputation and moral integrity of a witness is to be assumed unless proven otherwise. The Mālikīs, the Shāfiʿīs, the Ḥanbalīs, and Abū Yūsuf—the great majority of the Sunnī fuqahāʾ—hold that the judge is required to verify the good reputation of a witness even in cases in which it has not been challenged by one of the litigants.213 With regard to qadhf, however, 210

211

212 213

In her discussion of the problem, Ḥassūna quotes three different opinions on the testimony of women in ḥadd cases and simply states that the Evidence Act of 1993 has adopted the third opinion, which allows for female testimonies. She does not give any further comment on the possible reasons the Sudanese legislators may have had for such a decision, nor does she expound on the problem of the weak textual base of the Evidence Law of 1993, art. 63 (b). Inexplicably, Ḥassūna, who is one of the most prolific commentators on Islamic law in the Sudan and also a Supreme Court judge, quotes the relevant passage of art. 63 (b) as “ … shahāda shāhidayn ʿadlayn ….” See Badriyya ʿAbd al-Munʿim Ḥassūna, Ithbāt jarāʾim al-ḥudūd fī l-sharīʿa wa-l-qānūn: Dirāsa muqārina (N.p., 2002), 38. I have three printed versions of the Evidence Law of 1993/1994—both years are given—two published by the Sudan ministry of justice and the third published by the Sudan judiciary. None of the three contains the important qualification of ʿadl. Scholz, one of the few western authors who has taken a closer look at the law, says “Die Zulässigkeit bescholtener und weiblicher Zeugen widerspricht wiederum der einhelligen bzw. herrschenden Auffassung der traditionellen Lehre.” In other words, the copy of the law at his disposal also did not mention “good reputation” as a precondition for the witnesses. See Scholz, “Die koranischen Delikte,” 457. Al-Ṭāhir also discusses the article on the assumption that ʿadl is a qualification of the witness. See Ḥājj Ādam Ḥassan al-Ṭāhir, Sharḥ qānūn al-ithbāt alsūdānī (Khartoum: Dār Jāmiʿat al-Qurʾān al-Karīm lil-Ṭabāʿa, 2003), 222. See Ḥassūna, Ithbāt jarāʾim al-ḥudūd, 40. According to Ḥassūna “… al-aṣl fī l-shāhid alʿadāla ḥattā yaqūma al-dalīl ʿalā khilāf dhālika.” Maʾmoun M. Salama, “General Principles of Criminal Evidence in Islamic Jurisprudence,” in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System (New York: Oceana, 1982), 117.

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a problem arises if a witness has been convicted of qadhf previously; in that case, his credibility in a subsequent case of qadhf is gravely impaired. While Abū Ḥanīfa and Abū Yūsuf forever exclude the convicted qādhif from further testimony in qadhf cases, Mālik and al-Shāfiʿī admit such testimony once the offender has repented. Since both evidence acts are silent with regard to this problem, one could conclude that a previous conviction for qadhf has no influence on the admissibility of the testimony. However, with regard to the number of witnesses, compromises are not admitted. In a landmark case from December 1983, the Supreme Court overruled the decision of a lower court that had accepted the testimony of officials.214 Two defendants were sentenced to amputation for sariqa ḥaddiyya after having allegedly stolen 250 Sudanese pounds from their victim in a parking lot. Neither of the two defendants confessed and both claimed not to know the other. Thus, the decision of the lower court, which was upheld by the appeals court, was based entirely on witnesses. Three male witnesses were produced by the lower court. The first witness was the officer who accepted the complaint, the second witness was the victim himself, and the third witness was a policeman who had been patrolling the parking lot and actually saw the theft. In its review of the lower court’s decision, the Supreme Court made it clear that by law the plaintiff/victim cannot testify on his own behalf in a case of ḥadd theft. It further declined to accept the testimony of the policeman who had heard the complaint, because he was not a direct witness to the crime and only heard about the events in question. The Supreme Court thus established, at a very early stage after the introduction of Islamic criminal law in the Sudan, that in cases that can lead to amputation only the testimony of direct eyewitnesses (and not that of the aggrieved party) would be accepted.215 As in the fiqh, circumstantial evidence is not admitted in ḥadd cases under the Evidence Act of 1983. The following case, originally submitted to the Kordofan appeal court and subsequently submitted to the Sudan Supreme Court for review, confirms this principle: Nine cows belonging to the plaintiff and tied in their corral went missing and were found later in the possession of the defendant al-ʿAwaḍ Markaz Maʿālī, who, in turn, claimed that he had found them ownerless. The local 214 215

See Government of the Sudan vs. Fītir Watir Dīnq and ʿAwaḍ Muḥammad ʿAbd al-Jalīl, sljr (1983). Interestingly, the Supreme Court judge who reviewed it quotes various sources in his deliberations, including Ibn Qudāma and ʿAwda, and they all reach the conclusion that a minimum of two males are required to testify in cases of sariqa ḥaddiyya. The contradiction with the Evidence Act of 1983, art. 78 (2), is striking. Compare above.

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criminal court indicted the defendant under Article 321 for ḥadd theft and sentenced him to amputation of the right hand from the wrist. The appeal court opined that even though the investigation could not establish that the defendant had stolen the cows from a ḥirz,216 there was enough circumstantial evidence (adilla ẓarfiyya) to prove that indeed the defendant had taken the cows from their corral after their owner had tied them with a rope. The court deemed it improbable that another person had untied the cows and taken them out of the corral in order for the defendant to find them. The appeal court found that more than 26 times217 the minimum value (niṣāb) for ḥadd theft had been reached, that there was no basis on which to claim that the ḥadd punishment had lapsed, and that the rightful owner of the stolen property had filed charges. It therefore upheld and confirmed the decision reached by the trial court. The Supreme Court did not concur with the Kordofan appeal court’s confirmation of the sentence and its underlying reasoning. In its review, however, the Supreme Court came to the conclusion that the provisions of Article 70 of the evidence law had not been met. The defendant had not only not confessed to the crime, but had denied it until the passing of the sentence. He only admitted that he found the cows grazing freely; and this did not even meet the conditions for a confession to a non-ḥadd theft. In other words, there was no confession. Likewise, the second admissible proof of sariqa ḥaddiyya, the testimony of either two men, a man and two women, or four women, was not established. In conclusion, the trial court built its verdict entirely on the evidence that the cows were in the possession of the defendant. Consequently, the Supreme Court stated that such circumstantial evidence was not sufficient in ḥadd crimes, such as ḥadd theft, rather they constitute a legal uncertainty (shubha), and cause the ḥadd punishment to lapse. The verdict under Article 321 (2)—sariqa ḥaddiyya—was thus annulled and modified to “Criminal Misappropriation” under Article 344, Penal Code of 1983.218 Proof of zinā in the Evidence Acts of 1983 and 1993219 According to the Evidence Act of 1983, zinā is proven by (1) either a nonretracted confession, (2) the testimony of four male eyewitnesses of good 216 217 218 219

This is a safe place where movable property is kept. It remains unclear how the niṣāb was established. See Government of the Sudan vs. al-ʿAwaḍ Markaz Maʿālī, sljr (1984). The provisions about proof of zinā can be found in four statutes: Penal Code of 1983, Criminal Act of 1991, the Evidence Act of 1983, and the Evidence Act of 1993. A discussion of landmark Supreme Court cases on zinā can be found in chapter 4.1.

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reputation (rijāl ʿudūl), but testimonies of other persons (shahādāt ghayrihim) can also be accepted, (3) by the pregnancy if the woman is not married or, (4) by mulāʿana.220 The stipulations for the proof of zinā differ in important details from those devised by the majority opinions in the fiqh. First, and most importantly, next to the testimonies of four men of good reputation, the testimonies of women and non-Muslims are admissible in the Evidence Act of 1983.221 Furthermore, the Evidence Act of 1983 does not specify that the testimonies must be completely consistent with one another as to persons, time, place, and course of events. In addition, the majority of the fuqahāʾ is of the opinion that the statements have to be made in one single session. The lack of these strict rules of evidence counters the intentions of the fuqahāʾ, who strove to limit the applicability of ḥadd punishments as much as possible.222 Second, and equally important, only the Mālikīs accept the pregnancy of an unmarried woman as proof for zinā; the majority of the schools do not.223 By codifying this minority opinion among the fuqahāʾ, the Sudanese legislators substantially widened the possibilities to prove zinā.224 According to the Evidence Act of 1993, zinā can be proven in four different ways: (1) by a clear confession before the court,225 if it is not withdrawn before the execution of the punishment; (2) by the testimony of four male witnesses of good reputation (rijāl ʿudūl); (3) by the pregnancy of the unmarried woman if no legal uncertainty (shubha) arises; and (4) by the wife’s refusal of liʿān,

220

221 222

223 224 225

Compare Joseph Schacht, “Liʿān,” Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs, 5:730–732 (Leiden: E.J. Brill, 1960–2004), and the Evidence Act of 1983, art. 80 (3). See Evidence Act of 1983, art. 77 (2). To illustrate this: if zinā is proven by four valid testimonies and the offender subsequently confesses and if this confession is then withdrawn, then according to the Ḥanafīs and Ḥanbalīs, the ḥadd punishment for zinā cannot be executed, despite the four valid testimonies. This example of a legal trick (ḥīla) stems from a Ḥanbalī work. Compare El Baradie, GottesRecht und Menschen-Recht, 106. See Noel J. Coulson, Conflicts and Tensions in Islamic Jurisprudence (Chicago and London: University of Chicago Press, 1969), 62. As to the consequences, see the case studies below and Sidahmed, “Problems in Contemporary.” The wording of the article is “amām al-maḥkama,” without specification. Thus, a confession made before one of the lower courts would be valid. For a description of the different court levels, see Criminal Procedure Act of 1991, art. 6. The Penal Code of 1983 determined a confession in judicial council (majlis al-qaḍāʾ), according to the Criminal Procedure Act 1983, art. 8, the lowest level in a system of five levels.

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after her husband has sworn the oath of liʿān. It is clear that the legislators addressed the criticisms of the Penal Code of 1983 and improved on the new rules for proof of zinā, in the sense that they made them more compatible with the fiqh. Following the fiqh, only the testimony of four men of good character is now permitted. The testimony of other witnesses226 are excluded and thus the testimony of women, non-Muslims, or witnesses of doubtful reputation. Further, the admission of the pregnancy of an unmarried woman has been qualified. Article 62 (c) specifies that pregnancy is only admitted as proof for zinā if there is no legal uncertainty. It thus explicitly admits legal uncertainties to avert the punishment for zinā for unmarried women. Lastly, zinā can be proven by mulāʿana (also called liʿān) in cases in which the husband accuses his wife of adultery, but there are no witnesses,227 whereby the husband repeats his accusation of zinā four times and swears a fifth time that God’s curse be on him if he was not telling the truth. The husband, in this procedure, is not bound to the normal rules of proof. The legal consequences of liʿān are fourfold: First, the ḥadd punishment for qadhf for the husband lapses. Second, the liʿān is considered his denial of the paternity of a child borne by the wife during their legally valid marriage.228 Third, the wife is subject to the ḥadd punishment for zinā. She can, however, avert the ḥadd penalty for zinā if, under oath, she refutes her husband’s allegations. And, fourth, the marriage is dissolved.229 In order to be valid, the liʿān is subject to certain conditions. First, the husband pronouncing the liʿān must be sane, adult, and free to choose. It is not a precondition that he be a Muslim. Second, the liʿān must be pronounced in the presence of four witnesses. Proof of Alcohol Consumption in the Evidence Acts of 1983 and 1993 Apart from confession and testimony, under the evidence codes of 1983 and 1993, alcohol consumption can be proven by the smell of alcohol on the defendant, that is, by circumstantial evidence, if two witnesses of good reputation or

226 227 228

229

Evidence Act of 1983, art. 78 (2). The husband himself does not act as a witness in this case. For this and the following, see Joseph Schacht, “Liʿān,” in Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: E.J. Brill, 1960–2004), 5:730–732; and Bahnasī, al-Jarāʾim, 166–171. In that case, maintenance for the child whose paternity has been contested is the burden of the mother. See Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford at the Clarendon Press, 1964), 165, 168, and 179. Jurists differ on whether or not the divorce is an automatism after the liʿān procedure. For details see Bahnasī, al-Jarāʾim, 170–171.

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an expert (khabīr mukhtaṣṣ) testify to such.230 It should be noted that here the witnesses must give evidence that the defendant smells of alcohol, not that he actually drank it. The majority of the Sunnī schools do not recognize this testimony (that one smells of alcohol) as proof of shurb al-khamr.231 In another reference to the proof of alcohol consumption, Article 443 (2) of the Penal Code of 1983 states that the “smell is sufficient for the proof of drinking when it is proven to the court that it is the smell of alcohol.” This wording leaves open the question of whether two witnesses or an expert are needed, as Article 79 of the Evidence Act of 1983 suggests, or whether the knowledge of the judge (ʿilm al-qāḍī) is sufficient. We observe that both evidence acts stipulate that the witnesses only have to be “righteous” when they testify to the smell of alcohol. However, in order to testify to the (act of) drinking of alcohol, righteousness is not a requirement like it is not in all other ḥadd crimes, except zinā. Finally, a drunk person, according to the fiqh, is not allowed to testify against himself in cases that relate to the rights of God; as mentioned, this leads to the paradoxical situation in which a drunk person is not allowed to confess to his own state of drunkenness. However, if one follows the text of Article 63 of the Evidence Act of 1993, such a confession is acceptable under Sudanese law.

General Principles in Sudanese Islamic Criminal Law Western authors generally agree that there are few general principles in Islamic criminal law.232 Johansen, who takes Ḥanafī law as an example, presents an instructive analysis of the lack of guiding and consistent rules.233 Thus, in general, ḥadd offenses are considered to be claims of God and qiṣāṣ offenses (homicide and bodily harm) are claims of men. However, within the category of ḥadd offenses a number of inconsistencies can be observed. Some victimless crimes like alcohol consumption and illegitimate sexual intercourse entail obligatory public prosecution, that is, if these offenses become known to the authorities

230 231 232

233

Evidence Act of 1983, art. 79, and Evidence Act of 1993, art. 64. Bahnasī, al-Jarāʾim, 192. Compare, for example, Peters, Crime and Punishment, 19; Hervé Bleuchot, Droit musulman: essai d’approche anthropologique, vol. 2: Fondements, culte, droit public et mixte (Aix-enProvence: Presses Universitaires d’Aix-Marseille, 2002), 2:670; Schacht, An Introduction, 187; and Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1999), 421. For a discussion of the different approaches of selected Arab authors see Bleuchot, Droit musulman, 2:671–672. Johansen, Contingency in a Sacred Law, 421–422.

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an official inquiry is compulsory. These cases do not require a private prosecutor because there is no victim, except in the case of rape. On the other hand, there are ḥadd offenses (qadhf ) in which the authorities can only prosecute a case if a private plaintiff presses charges. Further, there are ḥadd offenses in which, as in the aforementioned case, private charges are indispensable to beginning proceedings because the private and the public claim are almost on a par with each other. However, the punishment, in Ḥanafī law, is considered a public claim (or a claim of God; ḥaqq Allāh), that is, the satisfaction of the public legal claim excludes the satisfaction of the private claim.234 Further, there are ḥadd offenses in which the religious status is decisive for the punishment (e.g., shurb al-khamr, qadhf ) and others in which the juridical status of the slave or the non-Muslim is decisive for the punishment (zinā). In addition, the legal status of iḥṣān (immunity) of either perpetrator or victim and its impact on their respective punishments is another example of a guiding principle. These examples suffice to demonstrate some of the principles that do exist. They apply to ḥadd and qiṣāṣ crimes only; the rules for taʿzīr and siyāsa are less strict. While the books of classical jurisprudence ( fiqh) do not contain chapters on general rules, these general concepts can, however, be deduced.235 How these principles relate to the guiding principles of Sudanese Islamic criminal law codification is discussed below. Geographical Applicability Islamic law in general and Islamic criminal law in particular do not claim to be universally applicable. A Muslim is only fully subject to Islamic law within the territory of the Islamic state.236 For the non-Muslim, Islamic criminal law is binding only to a limited extent within the territory of the Islamic state.237 In the Sudan, defining the area in which Islamic criminal law is applicable has

234

235 236

237

As mentioned above, this is the Ḥanafī view; the schools differ as to the categorization of the punishment for qadhf. Johansen, Contingency in a Sacred Law, 421–422 and Yahaya Yunusa Bambale, Crimes and Punishments under Islamic Law (Ikeja, Nigeria: Malthouse Press, 2003), 51. Peters, Crime and Punishment, 19. In the fiqh it is controversial to what extent Islamic criminal law can claim (theoretical) applicability outside the territory of the Islamic state. The Ḥanafīs for example, in contrast to the majority opinion, holds that zinā is not punishable outside Islamic territory, because there a Muslim is not subject to the authority of the caliph. See El Baradie, Gottes-Recht und Menschen-Recht, 104. Schacht, An Introduction, 199. For details on the status of non-Muslims in Islamic criminal law, see respective chapters below on ḥudūd, qiṣāṣ, and taʿzīr.

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been a major source of contention from its inception until now. The Penal Code of 1983 did not exempt the predominantly non-Muslim South from ḥadd and qiṣāṣ punishments. As a matter of fact, it proclaimed that it was applicable (as of 1983) to the totality of the Sudanese population and this became one of the driving forces of the civil war with the South. In order to forestall the criticism that was voiced against the Penal Code of 1983, the Criminal Act of 1991 exempted238 the Southern states from a variety of offenses, unless the accused himself requested to be punished according to these provisions or the legislative body of a Southern state decided to apply these provisions. The Southern states were exempted from all ḥudūd punishments. However, the exemption of the Southern states did not mean that all of these offenses, when committed in the South, went unpunished. To some extent the ḥadd provisions were replaced by taʿzīr punishments. Whoever drank alcohol in the South, whether Muslim or not, was still punished under Article 78 (2).239 There was no alternative punishment for apostasy for non-Muslims. Muslims living in the South could, theoretically, commit apostasy and not be punished according to the Criminal Act of 1991. Unlawful sexual intercourse (zinā) and armed robbery (ḥirāba) committed in the South were to be punished with taʿzīr punishments.240 The taʿzīr punishments for armed robbery committed in the South were relatively light. For grievous harm, amputations were not imposed, but imprisonment up to ten years was and while a Muslim in the North who is found guilty of ḥirāba could be punished for rape with the death penalty and subsequent crucifixion in the North, the same crime would be punished with life imprisonment in the South. The zinā offender in the South could also be punished relatively lightly: in the South, the muḥṣan could receive a maximum of threeyears’ imprisonment, compared to stoning for the muḥṣan in the North. Qadhf in the South could be punished as defamation, with the offender receiving a maximum term of six-months’ imprisonment or a fine or both, instead of 80 lashes for the offender in the North. Sariqa ḥaddiyya committed in the South could only be punished as theft (Art. 174), entailing a maximum prison term of seven years or up to 100 lashes instead of amputation in the North. In addition to provisions pertaining to the ḥadd offenses, Art. 139 (1) exempted the South from qiṣāṣ penalties for causing intentional wounds. Instead a maximum prison term of five years, or a fine or both was provided for. Finally, the South 238

239 240

With the independence of Southern Sudan in 2011, the parts of the Criminal Act of 1991 that distinguish between the North and the South are now obsolete. The South now applies its own penal code. Art. 78(2) does not fall under the exemptions. For an analysis, see below. See art. 146 (4) for zinā and art. 168 (2) for armed robbery.

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was exempted from Art. 85, forbidding the sale of a carcass.241 Further, it should be noted that the non-Muslim population living in the North was not exempted from any of the provisions pertaining to Islamic criminal law.242 This, however, stands in conflict with the Interim National Constitution promulgated in 2005. The Interim National Constitution contains a group of five provisions (Art. 154– 158) protecting the rights of non-Muslims in the capital Khartoum. Next to pledging respect for all religions in the capital (Art. 154), Article 156 outlines the principles that guide the dispensation of justice in Khartoum. Apart from tolerance with respect to different cultures, religions, and traditions, Article 156 affirms that: “The judicial discretion of courts to impose penalties on nonMuslims shall observe the long-established sharīʿa principle that non-Muslims are not subject to prescribed penalties, and therefore remitted penalties shall apply.” Finally, Article 157 calls for the establishment of a special commission “to ensure that the rights of non-Muslims are protected and respected … and not adversely affected by the application of sharīʿa law in the national Capital.” It must be mentioned here that in many ways Article 156 contradicts the position of non-Muslims in the Criminal Act of 1991 and that a faithful application of the Interim National Constitution would require a substantial reform of the Sudan’s penal laws, which, after the secession of Southern Sudan, is less likely to happen. Criminal Responsibility243 While generally speaking, in the fiqh persons are punished for their own deeds,244 there are exceptions. The qasāma procedure (described above), which entails collective liability, is such an exception. As in western law245 in the fiqh there are two necessary elements of a crime: actus reus (the punishable offense) and mens rea (the guilty mind). In the fiqh, we find a number of cases in which mens rea, that is, the blameworthiness of the defendant is absent and, therefore, he cannot be punished for the offense he committed. The most important cases, which I discuss briefly below are minority, insanity, unconsciousness, legal uncertainty, and duress. Further,

241

242 243 244 245

This provision is based on Qurʾān 5:3 which prohibits the consumption of carrion. See ʿAbdallāh al-Fāḍil ʿĪsā, Sharḥ qānūn al-jināʾī liʿām 1991 m. (N.p., n.d.), 84. See also David Waines, “Carrion,” Encyclopaedia of the Qurʾān (Leiden: Brill, 2001), 291–292. Criminal Act 1991, art. 5 (1)–(3). For the following, compare Peters, Crime and Punishment, 19–30. Bambale, Crimes and Punishments, 7. Compare, for example, definitions of both terms in Elizabeth A. Martin (ed.), Oxford Dictionary of Law (Oxford: Oxford University Press, 2003), 10 and 312.

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a per se punishable offense (actus reus) can lose its punishability and be considered lawful under certain circumstances, such as in a situation of selfdefense. With respect to criminal responsibility, a majority of the fuqahāʾ distinguishes whether intoxication stems from voluntary drinking or coercion. The majority does not recognize drunkenness, when it is the result of voluntary drinking, as a mitigating factor in criminal cases. Drunkenness also does not decrease criminal responsibility since the consumption of wine and other alcoholic beverages is forbidden in the first place.246 However, if drunkenness results from coercion, the inebriated person is not held criminally responsible. A second, minority opinion held by some Ḥanafīs and some Shāfiʿīs invalidates the acts of the drunk person irrespective of the intoxicating substance and regardless of whether or not he had an excuse for becoming drunk. Ibn Ḥazm even exempts the drunkard from retaliation and any financial liability for damage caused while drunk.247 A third opinion, also a minority, considers the legal capacity of the person. If the drunk person is of legal age and sane, a verdict is possible regardless of whether the alcoholic drink was consumed voluntarily or by coercion. As a consequence, the culprit is fully responsible for his acts and is also financially liable.248 With regard to the criminal responsibility of the drunk person, the Penal Code of 1983 adopted the text of the Penal Code of 1974 without change. Both codes distinguish clearly between persons who drink of their own free will and those who drink under coercion.249 While the former “is presumed to have the same knowledge as he would have had if he had not been intoxicated” and is thus fully responsible, the latter “did not possess the power to appreciate the nature of his acts or to control them by reason of intoxication … administered to him against his will.” In consequence, he is fully responsible for his deeds. The Criminal Act of 1991 follows the same pattern: persons who take intoxicants “as a result of coercion, or necessity …” are not deemed to have committed an offense.250 If the intoxicant is consumed voluntarily, however, full responsibility for the deed ensues. In summary, with respect to criminal responsibility, the

246 247 248 249 250

See Erwin Gräf, “Die Todesstrafen des Islamischen Rechts,” Bustan 1 (1965), 16. Ahmad Fathi Bahnassi, “Criminal Responsibility in Islamic Law,” in Cherif M. Bassiouni (ed.), The Islamic Criminal Justice System (New York: Oceana Publications, 1982), 186. See ibid., 185–186 and Bahnasī, al-Masʾūliyya, 225–227. See Penal Code Act of 1974, art. 42 and 43; Penal Code of 1983, art. 42 and 43. Criminal Act of 1991, art. 10.

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codes of 1983 and 1991 are entirely in line with the majority opinion in the fiqh, despite following the example of the codes passed from 1974 and even from 1924.251 Minority, Insanity, and Unconsciousness There is no criminal responsibility in the fiqh if the perpetrator of a crime is either a minor, insane or unconscious. However, if unconsciousness is the result of alcohol consumption it does not preclude criminal responsibility since drunkenness in itself is an offense. The impossibility of imposing a punishment on a minor, an insane or unconscious offender does not preclude his financial liability for the damage caused. In the case of torts, mere causation, not causation by fault, suffices to create financial liability. In the case of taʿzīr crimes the requirements with regard to the offender are lower than in the case of ḥadd and qiṣāṣ crimes. The offender only needs to possess reason (ʿaql), that is, he must understand that he acted wrongly.252 Minors, while not liable to punishment for ḥadd and qiṣāṣ crimes, can be punished with corrective measures (taʿdīb) for taʿzīr crimes. On the age of minority, the schools agree that it ends with physical puberty. They differ, however, on the age before which puberty cannot be established and the age after which the absence of puberty cannot be established.253 Thus, the Mālikīs hold that puberty for boys and girls cannot be established before the age of nine. As to the absence of puberty, the Mālikīs teach that (for both sexes) it cannot be established after the age of eighteen. The Ḥanafīs, also important in the Sudan, are of the opinion that puberty for boys cannot be established before the age of twelve and for girls not before the age of nine. The same school holds that the absence of puberty cannot be assumed once a man or a woman has reached the age of fifteen. The Penal Code of 1983 removed the age limit of the earlier code and replaced it by the notion of puberty (ḥilm).254 Thus the acts of children who have

251 252

253 254

See Penal Code of 1924, art. 50 (b). In this context, ʿaql refers to reason or intellectual maturity as a precondition for legal responsibility. Compare Mathias Rohe, Das Islamische Recht. Geschichte und Gegenwart (Munich: C.H. Beck, 2009), 575. For a complete table showing the age limits for both in all schools, see Peters, Crime and Punishment, 21. Penal Code of 1974, art. 49 stipulates that “No act is an offence which is done: (a) by a child under ten years of age, or (b) by a child of ten years of age or more but under fourteen who has not attained sufficient maturity of understanding to judge of the nature and consequences of such act.”

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not yet reached puberty do not constitute criminal offenses.255 Unfortunately, chapter 2 “General explanations and definitions” of the Penal Code of 1983 does not provide us with a definition of “puberty” or “adult” in the context of the code. The age before which puberty cannot be established and the age after which the absence of puberty cannot be established are not defined. This lacuna has been filled in the Criminal Act of 1991.256 With regard to drunkenness, the Penal Code of 1983 simply adopted the relevant article from its predecessor code. The Penal Codes of 1974 and 1983 state that “a person who does an act in a state of intoxication is presumed to have the same knowledge as he would have had if he had not been intoxicated.” If the intoxicating substance was administered to him against his will or without his knowledge, however, the act is not considered an offense.257 Though in the case of the Penal Code of 1983 this was simply taken over from its secular predecessor, both articles are compatible with the fiqh. Acts committed by persons suffering from permanent or temporary insanity or mental infirmity are likewise not considered offenses.258 In the Criminal Act of 1991 a child that has not reached puberty cannot be deemed to have committed an offense. However, provided the child has reached the age of seven, welfare and reform measures can be applied to him or her as the court deems fit.259 An analysis of what the Criminal Act of 1991 assumes about puberty highlights interesting features that distinguish it from the reasoning of the fuqahāʾ. It defines an adult as “a person whose puberty has been established by definite natural features and who has attained fifteen years of age.” It further specifies that “whoever attains eighteen years of age shall be deemed an adult even if the features of puberty do not appear.”260 The Criminal Act of 1991 thus does not make distinctions between boys and girls/men and women, unlike some of the schools.261 Second, the minimum age of fifteen for an adult showing the natural features

255 256 257 258 259

260 261

Penal Code of 1983, art. 49. See below. Penal Code of 1974/83, art. 43. Penal Code of 1974/83, art. 50. Criminal Act of 1991, art. 9. The welfare and reform measures prescribed for juveniles (from age seven) are laid out in the Criminal Act of 1991, art. 47. These include reprimanding, flogging, detention in a reformatory or social welfare institution, and other measures. Criminal Act of 1991, art. 3, “adult.” Ḥanafīs and Ḥanbalīs distinguish between boys and girls with regard to the age before which puberty cannot be established. With regard to the age after which the absence of puberty cannot be established, only the Shīʿīs distinguish between boys and girls. See Peters, Crime and Punishment, 21.

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of puberty is significantly above the age limits provided by the fuqahāʾ; the Ḥanafīs hold that for boys puberty cannot be established before twelve, and all Sunnī schools assume that for girls puberty cannot be established before the age of nine. Third, the Criminal Act of 1991 follows the Mālikīs with regard to the age after which the absence of puberty cannot be established. All other Sunnī schools hold that at the age of fifteen, boys and girls alike have reached the age of puberty. As to persons who are either insane or unconscious, they cannot be deemed to have committed an offense because they are not capable of appreciating the nature or consequences of their acts or controlling them.262 With regard to intoxicating substances, criminal impunity can only be invoked if the intoxicants were taken by coercion or out of necessity, or without knowing that they were intoxicating. Persons who consume intoxicant substances or drugs voluntarily and without necessity are fully responsible for any offense they commit.263 On both accounts the Criminal Act of 1991 is compatible with the fiqh. Self-Defense The principle of self-defense (al-difāʿ al-sharʿī) is recognized in the Criminal Act of 1991: no act shall be considered an offense if committed in self-defense. Self-defense by appropriate means is permissible in order to fend off an imminent assault upon one’s own or someone else’s person, property or honor and when recourse to the public authorities is not possible.264 The right to selfdefense is, however, not unlimited and does not extend to resistance against a public servant who is acting within the limits of his post, provided there is no fear of death or grievous harm from the acts of the public servant.265 The right to self-defense does not extend to willfully causing death, except when one fears that the imminent danger will cause death or grievous harm, rape, abduction or kidnapping, armed robbery (ḥirāba), robbery, criminal mischief, damage to public property, or criminal mischief by sinking a boat, or by setting fire or using poisonous, or explosive materials.266 The provisions of the Penal Code of 1983 on self-defense were taken over from the previous code, though they differ in some details from the Criminal Act of 1991. Thus, in 1974 and 1983, “to protect one’s honour” could not be invoked as a reason for self-defense. The concept of honor as a reason for 262 263 264 265 266

Criminal Act of 1991, art. 10. Criminal Act of 1991, art. 10 (c). Criminal Act of 1991, art. 12 (1) and (2). Criminal Act of 1991, art. 12 (3). Criminal Act of 1991, art. 12 (4).

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self-defense is important in fiqh and the Criminal Act of 1991 clearly makes reference to this (see below). The codes of 1974 and 1983 do not explicitly address specific situations that justify causing death in the course of selfdefense. Rather they speak in general of situations that justify self-defense, that is, the defense of one’s own and someone else’s body and/or property,267 in which case they specify that harm inflicted in self-defense cannot be greater than what is necessary for defense.268 Thus, while since 1991, judges could rely on rather clear guidance as to when causing death can be invoked as selfdefense, in the codes of 1974 and 1983, the only criterion for the use of force in self-defense was that it could not exceed what was necessary to fend off the assault. Acts of resistance against public servants acting in their official capacity or of persons under the direction of public servants, as in 1991, cannot be justified as self-defense.269 In the fiqh, self-defense is an important justification to avoid punishment for homicide or committing bodily harm. In cases of self-defense, no punishment nor any financial liability result from killing or bodily harm, provided the act is proportional with regard to the attack it was meant to ward off. Impunity can also result from attacks against one’s honor. Thus, women are obliged to defend themselves in cases of rape, provided they are in a physical state that allows them self-defense. If a woman is capable of defending herself, but does not, she is considered guilty of voluntary unlawful sexual intercourse. In fiqh, a woman who is raped can use force to prevent being raped. If the degree of violence used leads to the death of the attacker, this is permissible, however, only if there was no other way to stop the attack.270 We see further, in our chapter on zinā, that the position of women in cases of rape is extremely difficult. It took years of Supreme Court case law to rule that a female victim who cannot prove that she has been raped should not automatically be convicted of having engaged in unlawful sexual intercourse. A man who catches his wife (or a female relative) engaging in illicit sexual intercourse with another man is permitted to kill her (or his relative) and her sexual partner, provided that this is the only way to stop the crime. Stopping a crime in progress and defending one’s honor are the main arguments that exempt a killer from punishment for homicide. Ḥanafīs and Shāfiʿīs, however, maintain the requirement of four male witnesses to sexual intercourse. Mālikīs and Ḥanbalīs accept a minimum of two 267 268 269 270

Penal Code of 1974 and 1983, art. 56. Penal Code of 1974 and 1983, art. 58. Penal Code of 1974 and 1983, art. 60. Peters, Crime and Punishment, 25.

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witnesses, with the reasoning that the witnesses only serve to avert the punishment for homicide and not to punish a zāni/zāniyya. There is a last case in which killing is justified, that is, when one’s property cannot be defended without killing the attacker/thief.271 Duress (ikrāh) The Criminal Act of 1991 states that no person is deemed to have committed an offense if the (punishable) act was done by coercion, threat of death or imminent grievous harm to his person, family or property. The victim of duress apprehends that the threat is likely to occur and it is not in his power to avoid it by any other means.272 There are, however, limits to invoking duress. Thus, duress cannot justify causing death, or grievous harm or any of the offenses against the state that are punishable by death.273 The definition of duress in 1991 changed in some important details from its predecessor in 1983, which, in turn, is a copy of the pertinent article from the Penal Code of 1974.274 Like the 1991 definition, duress cannot be invoked in cases of murder and offenses against the state punishable by death.275 In the codes of 1974 and 1983, only the apprehension of imminent death could be invoked, and the threat of grievous harm to one’s family or property were not valid reasons to invoke duress as a defense. Further, the codes of 1974 and 1983 caution that duress cannot be invoked if the person placed himself in the situation (of duress) of his own accord. This clause was omitted in the Criminal Act of 1991. In the fiqh, duress (ikrāh) can be invoked in cases in which a ḥadd crime was committed as a result of a death threat or a threat of major injuries, if these injuries, in the event one did not commit the ḥadd crime, would have led to death or the loss of bodily organs. The fiqh assumes a direct connection, that is, a direct causal chain, between the person who coerced the actual offender and the victim, since the person who commits the ḥadd crime is considered to be a mere tool.276 It is important that the offender who acts under coercion believes that his coercer is willing and able to carry out the threat. The mere utterance

271 272 273

274 275 276

For an example from Egypt, see ibid., 26–27. Criminal Act of 1991, art. 13 (1). Criminal Act of 1991, art. 13 (2). Offenses against the state, punishable with the death penalty include, for example, “waging war against the state” (art. 51) and “espionage against the country” (art. 53). Article 53 in both codes. In 1991, “murder” (1974/1983) was replaced by “qatl ʿamd, intentional homicide” (1991). Compare Peters, Crime and Punishment, 23.

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of the threat is not sufficient, rather the one coerced must be convinced that the threat will be carried out. In light of the above it is clear that the Sudanese legislators made an effort (and succeeded) in bringing the definition closer to the fiqh. On the one hand a threat of grievous harm can now be invoked, on the other hand, the person under duress must believe that it is “most probable” that the threat will be carried out. Necessity (ḍarūra) The concept of necessity was introduced for the first time in the Criminal Act of 1991, Article 15, which states: No act shall be deemed an offense if done by a person compelled to do it by necessity to protect his person, honor or property or the person, honor or property of another from imminent grave danger which he has not willfully caused and which he has no ability to avoid, provided that no injury similar to the injury to be avoided or greater injury results; and provided that necessity does not justify causing death except in the performance of duty. In other words, even though necessity can be invoked for a variety of acts, it cannot be invoked in cases in which the injury committed is either similar or greater than the one he or she intends to avoid, neither can it be invoked in order to justify homicide. However, even though necessity does not lead to impunity in connection to homicide, it clearly has a mitigating effect on the punishment one may receive in cases of homicide, “where the offender commits culpable homicide that is necessary for the protection of himself or any other from death.”277 English law gives little weight to the concept of necessity as a possible defense and thus normally necessity cannot be invoked in homicide cases.278 Consequently, the 1924 and 1974 penal codes and the Islamized code of 1983 did not contain any provisions that mitigated crimes committed out of neces-

277 278

Criminal Act of 1991, art. 131 (1) (d). Philip S. James, Introduction to English Law (London: Butterworths, 1979), 179–180 quotes the precedent of R. v. Dudley and Stephens (1884), in which starving shipwrecked sailors killed a cabin boy in order to feed upon his body. Since necessity was not recognized, the sailors were convicted for murder. However, the sentence was later commuted to sixmonths’ imprisonment. The case illustrates how the courts in the English legal system have the flexibility to mitigate a sentence according to the circumstances despite the nonrecognition of necessity.

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sity.279 Necessity as such is not mentioned in the Penal Code of 1974 and was not introduced in the Penal Code of 1983 either. Both codes, however, contain an identical provision on acts likely to cause injury, but done without criminal intent and to prevent other injury or to benefit a person injured. The illustrations contained in Article 48, Penal Code of 1974 explain that what is meant, for example, are acts that cause the loss of life or grave injuries, but are inferior in scope compared to what would have happened if the act in question had not been done. Thus, for example, a railway engineer who changes tracks in order to avoid the collision of two trains is not guilty of an offense even if the train derails and lives are lost, because it is highly likely that in the case of a collision more lives would have been lost. This article, despite not explicitly mentioning the notion of necessity, can be considered a form of necessity since the act, despite constituting an offense, was committed with the intention of saving lives. Necessity in the fiqh Unlike cases of duress (ikrāh), necessity (ḍarūra) is not a person forcing someone else to commit a prohibited act, rather the perpetrator is caught in circumstances that he can only escape from by committing a forbidden act, so he does this to save himself or someone else from harm.280 Examples given by the fuqahāʾ for cases of necessity are severe hunger or thirst that drive a person to commit either theft (sariqa) or to eat or drink forbidden food or drinks. In relation to homicide, eating human flesh is discussed in extenso. In general, necessity does not have a mitigating impact on homicide, harm, and the cutting off of limbs.281 The person in need is not allowed, under any circumstance, to kill someone else, or to cut off someone else’s limbs or to wound another person in order to save his own life. Thus, if for example, a group of people in a boat is bound to sink and drown due to the weight of the goods on board, it is not permitted for any of them to throw anyone else from the group into the water in order to lighten the load of the boat and save himself and the others from drowning. The fuqahāʾ agree that the person whose life is protected against homicide, harm, and the cutting of limbs in a case of necessity is the person enjoying ʿiṣma, that is, the living maʿṣūm. However, opinions differ with 279

280 281

Compare Penal Code of 1924, the Penal Code of 1974, and the Penal Code of 1983, art. 249 stating the reasons “when culpable homicide is not murder.” Chapter 2, “Of Criminal Responsibility” of all three codes does also not recognize “necessity” as a mitigating factor. See Badriyya ʿAbd al-Munʿim Ḥassūna, Jarāʾim al-qatl al-ʿamd wa-shibh al-ʿamd wa-l-khaṭāʾ wa-jarāʾim al-ḥudūd fī l-sharīʿa wa-l-qānūn (N.p., 2001), 153. Compare for the following ʿAwda, al-Tashrīʿ, 1:578–579.

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respect to the muhdar and the dead maʿṣūm; the killing of the muhdar is not only allowed, it is a duty in most cases.282 Nevertheless, Mālik outlaws eating the flesh of a human being in a case of necessity, even if it is the flesh of a muhdar, that is, someone whose blood can be shed with impunity. Whether the muhdar is dead or alive does not matter to Mālik and, for that matter, to the majority of Ḥanafīs. Al-Shāfiʿī, Aḥmad b. Ḥanbal and a minority of Ḥanafīs are of the opposite opinion: they allow one to eat the flesh of the muhdar, whether he is dead or alive. Moreover, al-Shāfiʿī and some Ḥanafīs (but not Ḥanbalīs) even authorize eating the flesh of the dead maʿṣūm, that is, an inviolable person, with the justification that the inviolability of the living is greater than the ḥurma of the dead. Other fuqahāʾ contradict and do not concede a “hierarchy of necessity,” in the sense that one person in need (muḍṭarr) takes priority and can take from another person in need like himself what is necessary to save his own life. And if he does take from another person in need and this other person dies (because what is necessary to survive has been taken from him), then the perpetrator is legally guilty of homicide.283 In addition to the controversies described above, four conditions must be fulfilled to constitute a case of necessity: (1) The perpetrator is in a situation in which he fears death and the necessity is a recourse. (2) The necessity is imminent and not just expected. Thus, the hungry person is not allowed to eat the meat of animals not ritually slaughtered (mayta) unless he is suffering severe hunger. (3) There is no other means to ward off the case of necessity other than by committing a crime. If the necessity can be warded off by an allowed act then committing a forbidden act is prohibited, that is, it will have the usual legal consequences. Thus, for example, the hungry person cannot commit sariqa (without punishment) if he is able to buy food. (4) The necessity is warded off within the limits necessary to do so. Thus, the hungry person cannot steal more food than is necessary to satisfy his hunger.284 Thus, in 1991, necessity was introduced as a concept derived from the fiqh,285 however, its precepts were not fully followed. In the fiqh, there are discussions of three classes of crimes related to necessity: (1) Crimes upon which necessity has no influence, such as homicide, harm, and the cutting off of limbs; (2) crimes which are permissible in cases of necessity, such as eating forbidden food and drinking forbidden drinks, and finally; (3) offenses that are not permissible, but for which the punishment lapses in cases of necessity. Examples 282 283 284 285

Ibid., 1:578. Ḥassūna, Jarāʾim al-qatl, 156. See ʿAwda, al-Tashrīʿ, 1:577. See Ḥassūna, Jarāʾim al-qatl, 154–161.

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of this are stealing food or drink by someone who is starving, or throwing the merchandise of other passengers overboard if the sinking of a ship is imminent.286 As to the first class of crimes, which concerns us here, the fuqahāʾ clearly state that the person who is protected against homicide, harm, and the cutting off of limbs is the person who is alive and enjoys inviolability (ʿiṣma). As we have shown above there is only one exception to this principle: cutting off the limbs of the dead maʿṣūm, which is only allowed by al-Shāfiʿī and some Ḥanafīs. With regard to the muhdar, it is allowed or even a duty to shed his blood. This general principle is also applicable in cases of necessity, but necessity is not a precondition for its applicability.287 In other words, as shown above, the killing of the muhdar does not constitute intentional or semi-intentional homicide according to the fiqh and this is also true in a case of necessity. The killer of the maʿṣum in a case of necessity, however, must face the legal consequences of his act. Necessity is thus not considered a mitigating factor by the fuqahāʾ. Ergo, if a homicide is intentional it is not considered semi-intentional if committed in a situation of necessity. Here the Criminal Act of 1991 differs from the fiqh. While the fiqh, unlike English law and the penal codes of 1924, 1974, and 1983, as we see above, recognizes the concept of necessity as a reason for not being deemed criminally responsible, it does so mainly in relation to situations of severe hunger and thirst and the consumption of human flesh that might result from this circumstance. The Criminal Act of 1991, by contrast, does not distinguish between persons enjoying ʿiṣma and those who do not. It also—and this is a significant difference in the deliberations of the fuqahāʾ— recognizes necessity as having a bearing on cases of homicide. While it does not prevent the act from being considered a crime—as in all cases described in Criminal Act of 1991, Article 15—a case of necessity changes intentional homicide into semi-intentional homicide. Thus, paradoxically, the legislators have— while claiming to Islamize Sudanese penal law—omitted ʿiṣma, an important notion in the fiqh, that is, they have not differentiated between those who enjoy the full protection of life and property and those who have either forfeited it or never had this protection. Consequently, legislators implicitly introduced the notion of equivalence (kafāʾa) in cases of homicide. By abolishing the notions of maʿṣūm/muhdar, the state thus also confirmed its exclusive right to punishment.

286 287

For this classification and the examples compare ʿAwda, al-Tashrīʿ, 1:578–581. See Ibid., 1:578.

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Legal Uncertainty (shubha) One of the most important defenses in cases of ḥadd crimes and homicide are legal uncertainties, that is, an illicit act that resembles a licit one.288 A shubha is usually invoked to avert the imposition of the harsh ḥadd penalties; it is based on a ḥadīth calling upon the believers to “avert the ḥadd penalties by means of legal uncertainties.” The Evidence Acts of 1983 and 1993 both recognize legal uncertainties that avert ḥadd punishments.289 These legal uncertainties are the withdrawal of a confession, discrepancies in the testimonies of the witnesses, and the withdrawal of the testimony by a witness, according to both evidence acts. Both acts, however, are silent as to legal uncertainties with regard to homicide.290 Further, both codes define the liʿān procedure as a legal uncertainty that can also avert a ḥadd punishment.291 Beyond the pertinent evidence acts, legal uncertainties with regard to specific ḥadd crimes are defined in legal circulars.292 In the fiqh, the schools differ as to how they categorize the shubuhāt. The Ḥanafīs recognize three categories: (1) shubha fī l-maḥall (or shubhat mulk), (2) shubha fī l-fiʿl, and (3) shubha fī l-ʿaqd. In the first category, the act is forbidden and the offender might even be aware that this is the case. However, a text with some authority contravenes the general rule and thus serves as grounds for shubha. The standard example given is the case of sexual intercourse with the slave girl of one’s son. The text which makes the ḥadd lapse is the ḥadīth, “You and your property belong to your father.”293 In the second category the offender believes that his illicit act is licit. An example is sexual intercourse during the waiting period (ʿidda) with an (ex-) wife one has repudiated three times. The third category applies especially to zinā resulting from an invalid marriage contract, for example, one that results from a lack of witnesses or from having married a close family member. Ignorance with regard to the law can either be the result of ignorance of the essentials of the law (for example,

288

289 290 291 292

293

For the following, compare E.K. Rowson, “Shubha,” Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: Brill, 1960–2004): 9:492–493. For an alternative categorization see Peters, Crime and Punishment, 21–23. Evidence Act of 1983, art. 80 (1) and Evidence Act of 1993, art. 65 (1). Evidence Act of 1983, art. 80 (2) and Evidence Act of 1993, art. 65 (2). Evidence Act of 1983, art. 80 (3) and Evidence Act of 1993, art. 65 (3). Published in Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 3. The details of these circulars, which stipulate recognized reasons for the lapsing of ḥadd and qiṣāṣ crimes in general, are discussed in the respective chapters. See Rowson, “Shubha,” 9:492.

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the prohibition of illegitimate sexual intercourse or alcohol consumption) or ignorance of details of the law. In the former case the defense is accepted only in exceptional cases, for example, if the offender is a recent convert or came from the dār al-ḥarb.294 If the offender claims ignorance of the details of the law, such a defense is normally accepted. Examples are the consumption of alcohol for alleged medical purposes or the killing of a person “at his own request.”295 Repentance (tawba) In general, repentance (tawba) can lead to the lapsing of ḥadd punishments, provided that the criminal offense does not touch on the claims of men.296 The details of the impact of repentance on ḥadd crimes, however, are controversial in fiqh. In the case of banditry (ḥirāba), repentance can cause the ḥadd punishment to lapse if the muḥārib repents before he is caught and either voluntarily appears before the judge or discontinues his criminal activities and leads a decent life. With regard to apostasy, a majority opinion holds that repentance within a certain amount of time, which varies according to the respective school, causes the ḥadd punishment for apostasy to lapse. However, repentance does not make the punishment lapse in a case of qadhf, unless the aggrieved party pardons the culprit, since the claims of men have prevalence over the claims of God.297 With regard to illegitimate sexual intercourse, theft, and alcohol consumption, the leading opinion of the Ḥanafī and the Mālikī schools, as well as some scholars from the Ḥanbalī and the Shāfiʿī schools reject the general impact of repentance on the punishment of these ḥadd crimes. They argue, for example, that the Prophet himself imposed ḥadd punishments against adulterers and thieves despite their repentance. The opposite opinion is held by some Mālikīs, Shāfiʿīs, and Ḥanbalīs. They defend the general influence of repentance on the ḥadd punishments with, for example, the argument that it is taken into account for the much more significant crime of ḥirāba and that it should therefore also apply to “smaller” ḥadd crimes.

294 295

296 297

“Territory not ruled by Muslims.” Peters, Crime and Punishment, 22. To what degree legal uncertainties are recognized in the Penal Code of 1983 and the Criminal Act of 1991 and the ensuing Supreme Court legislation is discussed below in the corresponding chapters. For the following, see Peters, Crime and Punishment, 27–28, and El Baradie, Gottes-Recht und Menschen-Recht, 212–222. There are differences of opinion among the different Sunnī schools with regard to exactly when a pardon can be granted by the maqdhūf. El Baradie, Gottes-Recht und MenschenRecht, 219.

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Repentance that causes ḥadd punishments to lapse has no effect on liability for homicide, bodily harm or theft, since here the claims of men are affected. Neither does repentance forestall criminal responsibility based on taʿzīr. Neither the Penal Code of 1983 nor the Criminal Procedure Act of 1983 mentions tawba as grounds for rescinding a ḥadd punishment.298 Notwithstanding its limited practical significance, the Criminal Act of 1991 not only introduced the notion of repentance, it also, in the case of ḥadd theft, accepted a minority opinion. Thus, it used one of the available tools to mitigate the application of severe ḥadd punishments for apostasy, banditry, and ḥadd theft, which all lapse if the culprit repents. The Criminal Act of 1991, though, does not follow the minority opinions acknowledging repentance as valid grounds for the lapsing of all ḥadd penalties. Attempt and Criminal Joint Acts Attempt The Criminal Act of 1991 defines “attempt” as the commission of an act that apparently indicates the intention to commit an offense, but the offense was not carried out, due to a cause beyond the offender’s will. The attempt to commit an offense is punishable with a prison term not exceeding half the maximum term prescribed for the offense (had it been carried out). When the prescribed penalty for the offense is capital punishment or amputation, the punishment for the attempted offense does not exceed seven years of imprisonment.299 In the Penal Code of 1983, the definition of “attempt” was literally copied from the 1974 code, with the exception of the punishment. While in 1974 an attempt to commit an offense punishable with imprisonment or causing such an offense to be committed was punishable with a prison term of up to half of the maximum term for the offense (had it been carried out), in 1983 the penalty was replaced by the ubiquitous formula “by flogging and fine or imprisonment.” In the fiqh a theory on attempted crime does not exist.300 Joint Criminal Acts The Criminal Act of 1991 states that when an offense is committed by two or more persons who execute a criminal conspiracy between them, each offender is responsible for the offense as if it was committed by him alone.301 Criminal 298 299 300 301

Köndgen, Das Islamisierte, 44. Criminal Act of 1991, art. 19, 20 (1), 20 (2). Peters, Crime and Punishment, 20. Criminal Act of 1991, art. 21.

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conspiracy is defined as an agreement to commit an offense.302 If the offense is committed by two or more persons without criminal conspiracy, each of them is responsible for his act and punished by the penalty prescribed for it.303 The criminal conspiracy as such, that is, the agreement between two or more people to commit an offense, is only punishable in cases of intentional homicide, armed robbery (ḥirāba), and offenses against the state punishable by death, or when, following the criminal conspiracy, an attempt to commit an offense has actually been made.304 In other words, for the three crimes mentioned, the mere planning is punishable, even if the conspirators make no attempt to carry out the plan. The Penal Code of 1983 defines joint criminal acts in a way similar to its successor in 1991.305 Here too, the pertinent articles306 are copied from the Penal Code of 1974.307 A main difference, however, is that the codes of 1974 and 1983 do not include criminal conspiracy, in which even the agreement to commit the offense (the planning) is punishable. In the fiqh, in order to impose a ḥadd punishment, the perpetrator must have committed all elements of the crime himself.308 The ḥadd punishment lapses if he has, for example, in the case of sariqa (theft), removed a valuable object from a safe place (ḥirz), but then handed the object to an accomplice. The exception for this rule is the ḥadd crime of banditry (ḥirāba): all participants of an act of banditry are punished with the amputation of the right hand and left foot, even if only one of them actually takes property from the victim(s). It is important to note that this principle also works in the reverse order. If the main culprit cannot be convicted, for example, because he is a minor, the ḥadd punishment lapses for all others involved as well. With regard to cases of homicide, complex rules apply in the fiqh. A majority of schools hold that in a case with multiple perpetrators, who exactly caused the death of the victim must be established. If the actual killer cannot be iden-

302 303 304 305 306 307

308

Criminal Act of 1991, art. 24 (1). Criminal Act of 1991, art. 22. Criminal Act of 1991, art. 24 (2). In this context, ‘offense’ is defined as every act punishable under the provisions of the Criminal Act of 1991. Except that the notion of “criminal conspiracy” (1991) in 1974/1983 is “criminal act … done … in furtherance of the common intention.” Penal Code of 1983, art. 78–81. The examples in the Penal Code of 1974, however, were dropped, as in all other articles and the notion of “criminal conspiracy” (1991) in 1974/1983 is worded “criminal act … done … in furtherance of the common intention.” For this section, compare Peters, Crime and Punishment, 28–30.

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tified, then the claim is dismissed. However, collective criminal responsibility is assumed—and the death penalty for all is possible—if all perpetrators acted simultaneously and if their act would have been lethal had each one of them carried it out separately. If the perpetrators did not act simultaneously, criminal responsibility falls upon the offender who attacked the victim first, if the victim dies within a day after the attack. If the victim dies later than that, criminal responsibility lies upon the last attacker. In both cases, there is no collective responsibility or punishment; all remaining attackers are liable for a taʿzīr punishment. In opposition to this majority opinion Mālikīs assume collective criminal responsibility in the above cases. All those who directly took part or assisted in the murder, even if their role was abetting, are held collectively responsible. In practice this means that not only the person who actually shot or stabbed the victim is subjected to qiṣāṣ, but also those who had lesser roles in the killing.

Sanctions Penalties in the Penal Code of 1983 The Penal Code of 1983 doubled the number of punishments and compensation from six to twelve in comparison to the earlier code of Penal Code of 1974.309 The new punishments introduced in 1983 are those that are typically found in the fiqh. Thus, crucifixion and stoning were introduced, as well as single and cross amputation, full and diminished diya, and qiṣāṣ. Stoning is on the list of possible punishments but it is not the punishment for zinā for the muḥṣan (Art. 318 (1), which is punishable by hanging). According to interviews Zein conducted with al-Jīd (one of the authors of the penal code), these authors were more concerned “with the bad impression … than with perfecting the Penal Code from an Islamic point of view.”310 Further, al-Jīd did not believe that stoning could be implemented as a punishment for practical reasons. In order to justify why the classical punishment of stoning could not be applied in cases of zinā, the minister of religious affairs, ʿAbd al-Mālik al-Jaʿlī, issued a fatwa explaining that “due to the circumstance(s) under which Islamic laws were restored, hanging could juridically replace the stoning punishment.”311 Other punishments could also be imposed, for example, imprisonment, impris-

309 310 311

For the following see Penal Code of 1983, art. 64 (1)–(12). Zein, “Religion, Legality,” 247. Ibid., 248.

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onment with exile (nafy), or imprisonment with expatriation (taghrīb). In addition, the punishments of fines, forfeiture of property, and detention in a reformatory (for minors) stem from the 1974 code and were copied into the new code. In order to facilitate the application of the new penalties, the Penal Code of 1983 contains a number of explanations. For example, a full diya is defined as 100 camels or its equivalent. Flogging, if not specified further, ranges from a minimum of 25 lashes to a maximum of 100 lashes. With regard to imprisonment, the judge has complete discretion according to the circumstances of the case, while the terms “exile” (nafy) and “expatriation” (taghrīb) must be understood in accordance with the sharīʿa. Despite a number of explanations and specifications, it is surprising to see that many important issues were not addressed in the chapter on penalties and compensation in the Penal Code of 1983. This is especially true with regard to qiṣāṣ. The Penal Code of 1983 does not define qiṣāṣ, it does not mention how it is carried out, who inherits it when the victim is dead, under what circumstances it can be carried out in cases of bodily harm, and in which cases qiṣāṣ is remitted. As mentioned above, the terms exile and expatriation are also not defined but must be clarified by consulting “Islamic sharīʿa.” Furthermore, the multiple questions surrounding diya are not answered, apart from the definition of full diya (diya kāmila) mentioned above. We do not learn when, on whom, nor to whom the diya is due. The Penal Code of 1983 is also silent with regard to diya for specific parts of the body. Altogether, the changes to the Penal Code of 1974 are rather superficial. Most striking is the removal of the minimum and maximum age limits for the implementation of the death penalty. While in the Penal Code of 1974 these were eighteen and seventy respectively, in the Penal Code of 1983 such limits were abolished.312 The full range of punishments as known in fiqh is introduced in the Penal Code of 1983 in addition to the notion of blood money (diya). However, given the lack of explanation and detail, many questions remained unanswered, at least in the initial stage of its implementation, until criminal circulars issued by the chief justice and subsequent Supreme Court decisions answered at least some of these questions. Penalties in the Criminal Act of 1991 The following penalties are possible under the Criminal Act of 1991:313 the death penalty, retribution (qiṣāṣ), imprisonment and expatriation, fines, flogging, forfeiture and destruction of property without compensation (e.g., destruction

312 313

Compare Penal Code of 1974, art. 65 and the changed version in the Penal Code of 1983. See Criminal Act of 1991, art. 27–41.

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of alcoholic beverages or other illicit food items), closing premises (e.g., judgments that prohibit the use of premises), and taʿzīr penalties. In comparison, and while maintaining a similar set of punishments as its predecessor, the Criminal Act of 1991 presents clear definitions and illustrates the application of complex concepts such as qiṣāṣ and diya. It clarifies a number of questions a legal practitioner might have with regard to the actual application of the punishments. It corrects the flaws and fills the gaps of the earlier code and, to a large extent, further succeeds in bringing the provisions into harmony with the fiqh. With regard to the death penalty, it can be carried out by hanging (now specified), stoning (rajm), or in the same manner in which the offender caused death.314 Crucifixion (to be carried out after the death penalty) can only be imposed in cases of highway robbery (ḥirāba). However, the law now specifies the three categories within which, according to the sharīʿa, a death penalty may fall, that is, by way of ḥadd, qiṣāṣ or taʿzīr. Since the rights of the heirs but also procedural questions differ between the categories, it is important to specify what category a death penalty falls under. It should be noted that the fiqh provides for beheading by the sword as the normal way of execution.315 With regard to the minimum and maximum age of the offender who is to be executed, the Criminal Act of 1991 makes a clear distinction between ḥadd and qiṣāṣ offenses on the one hand and taʿzīr offenses on the other hand. While those guilty of taʿzīr offenses can only be executed if they are at least eighteen years of age or below seventy years of age, offenders guilty of ḥadd or qiṣāṣ crimes can be executed outside these age limits. For taʿzīr crimes, the Criminal Act of 1991 returns to the age limits of the Penal Code of 1974 (which had been lifted in the Penal Code of 1983). For the first time in Sudanese law, qiṣāṣ (retribution) is now defined as the punishment of an offender who commits an offense with intent.316 An attached list enumerates all the organs for which there is retribution and also the condition the organ must be in. For example, the loss of an eye can only result in retribution if the eye was sighted.317 The conditions of qiṣāṣ are strict and aim to ensure that in cases of wounds equivalence (mumāthala) between the organs (lost as a result of the crime and the one taken as retribution) is assured. They have to be similar in type, soundness, and size, and where these conditions are not fulfilled retribution cannot take place.318 In cases 314 315 316 317 318

For the death penalty see Criminal Act of 1991, art. 27 (1)–(3). Peters, Crime and Punishment, 36. Criminal Act of 1991, art. 28 (1). See Criminal Act of 1991, “Schedule i.” Criminal Act of 1991, art. 29 (a).

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of murder, qiṣāṣ is by hanging and only if the court sees fit, in the same way the offender caused the victim’s death. The Criminal Act of 1991 also stipulates that an individual killer can be executed for killing a group and, in reverse, a group can be executed for having killed an individual. The right to retribution rests first with the victim and if the victim is dead, with his relatives, that is, his heirs at the time of his death.319 The state shall act as heir for a person who has no heirs or if the heir is absent or his location is unknown and there is no hope of his return.320 The heir of a victim in cases of intentional homicide or intentional wounds has a number of options. He can claim retribution (qiṣāṣ) or blood money (diya), settle for a certain amount of money by way of reconciliation or completely pardon the culprit (without financial compensation). With the exception of qiṣāṣ, the same range of options applies in cases of semi-intentional homicide, accidental homicide, semi-intentional bodily harm, and accidental bodily harm.321 Under certain conditions qiṣāṣ is remitted.322 Apart from a pardon, this is the case if the victim or his relative is an offspring of the offender, if bodily harm has been inflicted with the consent of the victim, or if the offender becomes insane after the passing of the sentence. Apart from zinā, rape, buggery (liwāṭ), consumption, or dealing in alcohol (including also storing and transporting), flogging as a punishment is found in approximately twenty articles of the Criminal Act of 1991, adding up to “more than 10 per cent of its entirety.”323 For flogging, an age limit, albeit different from the death penalty, applies. No person who is sick or whose life might be in danger or who has attained sixty years of age may be flogged, except in cases where the flogging is a punishment for a ḥadd crime. Minors can be flogged (not exceeding 20 lashes) ‘by way of discipline’ from the age of seven.324 With regard to imprisonment, the discretion judges had in 1983 was limited in 1991. Like the death penalty, imprisonment cannot be imposed on minors younger than

319 320 321 322 323

324

Criminal Act of 1991, art. 28 (2) and art. 32 (1). Criminal Act of 1991, art. 32 (3). Criminal Act of 1991, art. 32 (4). Criminal Act of 1991, art. 31 (a)–(d). Medani, “A Legacy of Institutionalized,” 75. Medani does not interpret flogging as practiced under the Criminal Act of 1991 or its predecssor code as a genuine part of Islamic criminal law, but rather as part of the colonial heritage: “… the abhorrent corporal punishment introduced by the British for a number of offences remains one of its enduring legacies and ugliest feature.” Medani, “A Legacy of Institutionalized,” 75. Criminal Act of 1991, art. 35 (1). Flogging is listed here as a measure of ‘welfare and reform for juveniles.’ See Criminal Act of 1991, art. 47 (b).

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eighteen years of age or persons above seventy years of age. Highway robbery (ḥirāba), however, is exempted from this general rule. The terms “exile” (nafy) and “expatriation” (taghrīb) were defined in the 1991 code. Both terms can be traced to the Qurʾān and to a ḥadīth, their meaning, however, is controversial in the fiqh. Only the Mālikīs define it as real deportation; all other schools interpret it as imprisonment until the offender repents.325 Exile, according to the 1991 definition, is imprisonment far from the place where the offense was committed and far from the offender’s place of residence. Expatriation is the restriction of the offender’s residence to a place far from where the crime was committed.326 Lastly, the Criminal Act of 1991 provides some important definitions related to the pardoning of offenses. Thus, the execution of ḥadd penalties cannot be remitted by a pardon while the execution of a qiṣāṣ penalty can be remitted only by the pardon of the victim or his heirs.327 Special Provisions on taʿzīr Penalties In Islamic law, in addition to ḥadd and qiṣāṣ crimes there is a third category of crimes. These, called taʿzīr crimes, comprise all forbidden acts which are not ḥadd or qiṣāṣ and which are punishable by a discretionary punishment. While ḥadd and qiṣāṣ crimes consist of a limited number of clearly defined crimes, the majority of crimes fall into the category of taʿzīr. While before Islamization in the Penal Code of 1974 the term taʿzīr did not play a role, it is surprising to note that the Islamized Penal Code of 1983 also did not contain any specific provisions with regard to taʿzīr offenses. In the Criminal Act of 1991, however, we find a number of provisions that are specific to taʿzīr offenses. Thus, the court is bound to take into consideration mitigating and aggravating circumstances when determining the appropriate taʿzīr penalty, as well as the degree of responsibility, the motives of the offender, the seriousness of the act, the grievousness of the injury, and other circumstances surrounding the deed, such as the dangerous nature of the offender and his previous convictions.328 Where a single act constitutes more than one offense, these are considered overlapping and only the most severe penalty should be inflicted. If, in a case of multiple offenses, the most severe penalty is the death penalty, it excludes all other penalties, except forfeiture.329

325 326 327 328 329

Peters, Crime and Punishment, 34. Criminal Act of 1991, art. 33 (1) and (2). Criminal Act of 1991, art. 38 (1) and (2). Criminal Act of 1991, art. 39. Criminal Act of 1991, art. 40.

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Blood Money (diya) Blood Money in the Penal Code of 1983 and Judgments of the Supreme Court In fiqh, accidental and semi-intentional homicide or bodily harm result in the culprit’s liability for blood money. Cases of intentional homicide or bodily harm can also result in an obligation to pay blood money under certain conditions, for example, when a sentence for qiṣāṣ cannot be imposed because the blood price of the victim (e.g., when the victim is a woman and the killer a man) is lower than the killer’s or because the heirs of the victim agree with the killer on blood money. It is important to note that diya is not a punishment. Peters points out that in general it is not the offender but the solidarity group (ʿāqila) that is liable to pay the blood money, a clear indication that it is a financial compensation. Interestingly, the notion of diya, so important and central to Islamic criminal law, was not defined as such in the Penal Code of 1983, nor did the Penal Code of 1983 try to explain or determine any of the many questions pertaining to it. The judges did not receive any guidance on how to apply the law in this respect. While most of these gaps were filled, and inconsistencies remedied by the Criminal Act of 1991, judges between 1983 and 1991 had to resort to criminal circulars addressing some of the gaps and successively emerging Supreme Court case law. It remained unclear to whom diya was due, in which cases it could be applied, in which cases the offender or the ʿāqila should pay the diya and how much was the full diya or fractions of it that were payable in cases of bodily harm. In fact, the Penal Code of 1983 mentions diya only briefly in Article 64 (1) (e) and 64 (e). Article 64 (1) (d) lists full diya (al-diya al-kāmila) and the diminished diya (al-diya al-nāqiṣa) among other punishments to be applied. Second, it defines (in Article 64 (2)) the full diya (al-diya al-kāmila) as amounting to a hundred camels or its equivalent in Sudanese currency. There is no mention of the enhanced diya (al-diya almughallaẓa), which plays an important role in fiqh, nor does the list of possible punishments give an idea of what should be understood by diminished diya (diya nāqiṣa). Compared to the majority opinions of the fuqahāʾ on blood money, the Penal Code of 1983 interestingly makes no distinction between men and women as to their respective blood price. The dominant opinion of the fuqahāʾ is that the blood price of a woman is half the price of a man.330 Other criteria that play a role in the fiqh, such as religion and legal status, are not mentioned in the Penal Code of 1983 either.331

330 331

Layish and Warburg, The Reinstatement, 118. Peters, Crime and Punishment, 51.

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Diya for a Policeman Who Kills Someone While Exercising His Duties A case of homicide332 from the mid-1980s highlights the understanding of the nature of diya according to the interpretation of the Sudanese Supreme Court. During a pursuit, a policeman shot his victim dead without justification. A provincial court sentenced him under Article 253 of the Penal Code of 1983333 to pay a diya of 25,000 Sudanese pounds or serve a prison term of seven years in the event that he cannot pay the diya. The legal representative of the private prosecutors appealed and requested that Article 251 of the Penal Code of 1983—intentional homicide—be applied instead, since in his view mala fide was firmly established. He also requested a review of the prison term because a non-payment and the subsequent prison term would leave the private prosecutors without their due financial compensation. In its discussion of the decision, the Supreme Court concurred with the original sentence for semi-intentional homicide. It agreed that the policeman fell under a special clause,334 as he was a civil servant who committed homicide in good faith while performing his duties. Consequently, it also rejected the claim of mala fide, especially since the young man had only recently joined the police force and should not have been given a weapon to protect a residential quarter. However, the judges continued to stress that even though the policeman might not bear the responsibility or may have misunderstood his instructions, the rights of the family of the victim should not be abandoned. In addition, the policeman should pay the price for using his gun without justification and compensate the victim’s family. However, the Supreme Court criticized the lower court’s equation of the diya with a fine. The diya, the Supreme Court specifies, is due compensation that does not lapse because of a prison term or any other taʿzīr punishment. It only lapses with the pardon of those who inherited it or when it has been paid. In conclusion, the Supreme Court confirmed the sentence of the lower courts as to the payment of the diya and ordered the defendant to remain in prison until the diya was paid or the victim’s family pardoned him. The seven-year prison term, erroneously replacing the diya, was rescinded.

332 333 334

Government of the Sudan vs. Mukhtār al-Tāj Abū Nafīsa, sljr 456/1405 (1985). Penal Code of 1983, art. 253 punishes semi-intentional homicide with the death penalty or diya. Penal Code of 1983, art. 249 (3).

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The Issue of Imposing diya on Minors In 1985, the Supreme Court had to decide whether the diya could be imposed on minors.335 It reasoned that diya is a punishment imposed with the objective of prevention and deterrence.336 The punishments imposed on minors, however, are corrective, such as flogging and detention in a reformatory.337 It was therefore decided that minors who have not yet reached eighteen years of age or do not show the physical signs of adulthood according to the sharīʿa could not be sentenced to the payment of diya. It is noteworthy that in the case in question, the punishments for the underage perpetrator of intentional homicide became lighter with each review. While the original court of first instance imposed the death sentence, the court of appeal abolished the death sentence and sentenced the culprit to five years in a reformatory and 25,000 Sudanese pounds as diya. The court of appeal specified that if the defendant did not pay he would remain in the reformatory until payment was made. Further, the heirs should make their claim heard through civil jurisdiction. After the final review by the Sudanese Supreme Court, the payment of the diya was annulled because the culprit was underage. The Supreme Court decision did not mention the possibility of claiming money in a civil court, and the heirs did not receive any financial compensation for the death of a family member. As mentioned above, minors and the insane—while they cannot be held criminally responsible—are liable, in fiqh, to pay the diya in cases of homicide. No fault is required. While the court of appeal took this principle into consideration, the Supreme Court seems to have confused criminal responsibility and civil liability. Taking the former for the latter it acquitted the minor from his obligation to pay financial compensation and thereby contradicted the fiqh. Protection of the Rights of Minors, Absent Heirs, and Legally Incapable Heirs A case of fratricide from 1985 shows that settlements for diya can lead to the payment of amounts higher than the specified diya, while a lower amount is only possible if there is no infringement upon the rights of minors and other groups of heirs.338 A man killed his elderly brother by fracturing his skull with a hatchet after a brawl about land rights. Two eyewitnesses of good reputation testified to 335 336 337 338

Government of the Sudan vs. ʿAwaḍ al-Ḥājj Maḥjūb, sljr (1985), no. 1405/145. We see that even in Supreme Court jurisdiction the meaning of diya oscillates between compensation and punishment. Compare with the previous case. See Criminal Circular 1984/106. Government of Sudan vs. Muḥammad Ḥusain Muḥammad Khair, sljr (1985), no. 1405/81.

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the details of the case and the killer confessed to having committed the deed. The trial court did not deem applicable any of the mitigating circumstances (that can change an indictment for intentional homicide into one for semiintentional homicide) of Article 249 of the Penal Code of 1983. The defendant was therefore sentenced to death by hanging under Article 251 of the Penal Code of 1983. Two months after the verdict, the private prosecutors, that is, the wife of the victim and the underage children, reached a settlement with the culprit in exchange for the payment of the diya. According to this settlement, the defendant had to forgo his share of the inheritance from his father, that is, land and forty-one date palm trees that the defendant had cultivated on the land of his father. In its review the Supreme Court came to the conclusion that the killer’s forgoing of his inheritance as described above was legally valid (ṣaḥīḥ) because qiṣāṣ is remitted through a settlement against the payment of any amount of money, even if the amount to be paid is higher than the diya (which would normally have been paid under the circumstances of the case). Such a settlement can take place on the condition that the culprit accepts that the amount to be paid exceeds the normally payable diya.339 Since some of the heirs were minors, the Supreme Court further explained that it is important that a settlement does not diminish the due share of the minor, someone who is absent, or someone who has lost his legal capacity ( fāqid al-ahliyya). In the case at hand, it was the duty of the court of first instance to evaluate the value of the land and the date palm trees, the right to which the culprit has forgone. The court should have ascertained that the total value of the land and the trees, taking into account what the adult (that is, the mother) has waived, is not less than the diya specified by the court. This, because the mother is not in a position to forgo part of the share which is due to her underage child only. If the total sum of the diya actually paid—including whatever amount the adult(s) have forgone—is less than the diya specified by the court, then the killer is obliged to pay the difference. As a final conclusion, the Supreme Court accepted the settlement, abolished the earlier death penalty, and decided to keep the culprit in prison until he paid the diya. It further specified that the file was to be returned to the trial court for a calculation of the diya along the lines described above.

339

See also Criminal Circular 94/83 in Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 3, 18– 26.

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Diya in the Criminal Act of 1991 In comparison with the Penal Code of 1983, the Criminal Act of 1991, Articles 42–45 (supplemented by Criminal Circular no. (1), 2000)340 concerning the diya, the amount due, the recipient, and its applicability are far more specific and detailed.341 The legislators clearly remedied many of the flaws and omissions of the Penal Code of 1983. The Criminal Act of 1991 specifies that the (full) diya equals 100 camels of different ages or its equivalent in money to be determined by the chief justice.342 Unlike the Penal Code of 1983, two lists are attached to the Criminal Act of 1991, the first one lists body parts, such as a sighted eye (there is no diya for a blind eye), the nose, the sound ear, arm, leg, penis, and so forth, for the loss of which diya is due. The second list determines the amount of diya for specific wounds and ghurra, that is, financial compensation for the loss of a fetus.343 Wounds mentioned for which the normal, that is, the full diya is due are the loss of all the teeth, the loss of two limbs which exist in pairs or the loss of all the fingers or all the toes. Other wounds entail the payment of only half the normal diya; these wounds include the loss of one limb that exist in pairs. The list also defines smaller fractions such as one-third, two-thirds, onetenth, or one-twentieth, depending on the gravity of the wound or the loss of a limb, teeth, or a capacity. We notice here an important difference with the stipulations of the fiqh with regard to equivalence (kafāʾa). The Criminal Act of 1991 does not stipulate different blood prices for Muslims and non-Muslims or for men and women. While in the fiqh, according to the majority opinion the blood price of a woman is only half that of a man, no such distinction is made by the Criminal Act of 1991. With regard to the blood price for a non-Muslim victim, the Criminal Act of 1991 follows the Ḥanafīs and Ḥanbalīs who hold that it does not differ from the blood price of Muslims. Thus, in this important domain of Islamic criminal law, the Criminal Act of 1991 not only implicitly establishes equivalence between the sexes but also between people of different religions.

340 341 342

343

Criminal Circular (1), 2000 abolishes earlier circulars issued in 1991 and 1995. See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 1:5. The provisions described below were adopted, for the most part, from the Criminal Bill of 1988. Criminal Act of 1991, art. 42 (1). Criminal Circular (1), 2000, for example, fixed the full diya at two million Sudanese dinars and the amount of the enhanced diya (al-diya almughallaẓa) at three million Sudanese dinars. Criminal Act of 1991, art. 42 (2).

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Article 42 further specifies that no other compensation shall be imposed alongside the diya for homicide and wounds;344 this stipulation plays a role in subsequent Supreme Court case law (see below). In cases of accidental homicide and wounds, the amount of diya is decreased in proportion to the offender’s participation in causing the offense.345 The diya becomes applicable, in accordance with the list mentioned above, in cases of intentional homicide and intentional bodily harm if qiṣāṣ is remitted, in cases of semi-intentional homicide and semi-intentional bodily harm, in cases of accidental homicide and accidental bodily harm, and finally, in cases of homicide and bodily harm caused by a minor or by someone who has lost his clear judgment ( fāqid al-tamyīz).346 Criminal Circular (1), 2000 specifies more precisely that when qiṣāṣ lapses in cases of intentional homicide, diya is due, as it is in cases of semi-intentional homicide.347 The Criminal Act of 1991 further determines that diya is due in the first place to the victim, then the right to diya passes on to his heirs according to their shares in inheritance. If the victim has no heirs, “diya shall vest in the state.”348 Finally, Article 45 addresses the question of who should pay diya. In accordance with the fiqh, in cases of intentional homicide or intentional bodily harm, diya is due from the offender alone. In contrast, in cases of semi-intentional and accidental homicide or wounds, diya is due from the offender and his solidarity group (ʿāqila).349 The criminal act remains, however, silent on whether the ʿāqila is also responsible for the payment of the diya when the culprit confesses to semi-intentional or accidental killing or bodily harm or when he agrees to a financial settlement (ṣulḥ) with the heirs. While not specifying the distribution of financial responsibility between the offender and his solidarity group, Article 45 (3) gives a fairly detailed definition of the ʿāqila. Thus, the ʿāqila includes the paternal relatives of the offender, or his insurance company,350 persons who are jointly liable with him, and his employer if the offense is committed during the course of his employment.351 As we have seen in our discussion of the definition of the ʿāqila in the fiqh above, in 1991 the Sudanese legislators adopted a definition

344 345 346 347 348 349 350 351

Criminal Act of 1991, art. 42 (4). Criminal Act of 1991, art. 42 (5). Criminal Act of 1991, art. 43. (a)–(d). Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 2, 5. Criminal Act of 1991, art. 44. Criminal Act of 1991, art. 45 (2). See the explanation in Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 2, 9. Criminal Act of 1991, art. 45 (3).

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that is derived from the Ḥanafī approach. The Ḥanafīs hold that any group that shows solidarity toward its members can be considered an ʿāqila.352 In light of this open definition, the Sudanese legislators developed the concept of the ʿāqila according to modern requirements353 and thus included insurance companies and employers under specific circumstances. Thus, the Supreme Court declared the General Security Apparatus to be the ʿāqila of an officer who shot dead a suspect after a car chase.354 Further, the article regulates how the diya shall be paid. Thus, the diya for intentional homicide or intentional bodily harm is due immediately (after the sentence). Its payment may be postponed or it may be paid in installments with the consent of the victim(s) or his relatives. The diya for semi-intentional homicide or accidental homicide or bodily harm of the same categories may be due immediately or paid by installments.355 While qiṣāṣ lapses with the death of the killer, the right of the heirs to receive the diya does not lapse with the death of the killer but is inherited, according to a decision of the Supreme Court.356 Financial Compensation in Addition to the diya With regard to the important question of whether the heirs of a victim of homicide can, in addition to the diya, claim financial compensation, we have a Supreme Court ruling from 1992.357 In a case of intentional homicide, the culprit was originally sentenced to death by hanging according to Article 251 of the Penal Code of 1983.358 The Supreme Court supported the sentence and requested that the original trial court summon the private prosecutors and suggest to them that they either pardon the culprit or settle for the diya. While the widow of the victim had no voice (she was not present in the city), both parents said during the hearing that they would forgo qiṣāṣ in exchange for the payment of the diya and the defendant’s covering the costs of the trial.

352 353 354 355 356 357 358

For a detailed overview of definitions of the term ʿāqila in the fiqh, see Aḥmad Fatḥī Bahnasī, al-Diya fī l-sharīʿa al-islāmiyya (Cairo and Beirut: Dār al-Shurūq, 1988), 61–66. One commentary calls this approach fiqh muʿāṣir (contemporary fiqh). See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 2, 10. See Supreme Court decision no. 1994/729, sljr (1994). Criminal Act of 1991, art. 45 (4). This provision was not included in the Criminal Bill of 1988. Government of the Sudan vs. Ismāʿīl Ḥadūt Ashūt, sljr (1992), no. 1992/32. Government of the Sudan vs. ʿAbd al-Raḥmān Abū Rās Ḥamād, sljr (1992), no. 1405/63. The date of the original sentence was 21 Jan. 1985. It remains unclear why it took until the early 1990s for a final decision to be made on this case.

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The Supreme Court accepted the waiving of qiṣāṣ by the parents, but held that a financial compensation (the trial costs) in addition to the diya was not admissible according to the Criminal Act of 1991, which stipulates that “No other compensation shall be imposed alongside diya for homicide and wounds.”359 The above article, however, does not mean that there is no recourse by which the heirs can seek financial compensation for damage incurred in connection with homicide or bodily harm. They are, according to Article 46 of the Criminal Act of 1991, obliged to make their claims heard while the case is heard by the trial court, according to the provisions of the Civil Transactions and Procedures Act.360 Since the parents (and the other heirs) of the victim did not, initially, request financial compensation and the trial court did not take this decision, the Supreme Court applied Article 42 (4), which rules out financial compensation alongside diya for homicide and wounds. The texts of Articles 42(4) and 46, at first sight, seem rather contradictory. The first article negates the possibility of a compensation, the second one explicitly allows for it. Neither one specifies that claims have to be made during a specific stage of the trial. The sentence discussed here, however, makes it clear that any claim for compensation by heirs of a victim must be presented at an early stage of the trial, that is, before the official hearing during which the question of a possible pardon or diya is discussed. Once judgment has been passed, and the culprit and the heirs decide to accept the diya and forgo qiṣāṣ, no further financial claims are admissible. While this judgment harmonizes two, at first sight, contradictory texts, it seems rather unfair that the costs of the trial would be shouldered by the heirs of the victim. 359 360

Article 42 (4). Criminal Act of 1991, art. 46 stipulates, “The court shall, upon conviction of the accused, order the restitution of any property or benefit obtained by the offender, and it may, on application by the victim of his relatives, order compensation for any injury resulting from the offence, in accordance with the provisions of the Civil Transactions and Procedures Act [of 1974].”

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Unlawful Sexual Intercourse (zinā) and Related Offenses Zinā is an aspect of Islamic criminal law that has drawn a great deal of attention, not only with regard to the Sudan, but also in other countries where Islamic criminal law has been codified. The issue of rape and zinā (and especially the blurred distinction between the two) and the ensuing difficulty women experience in proving their innocence has been discussed and criticized in academia, by international organizations, and by ngos.1 In this chapter I describe and analyze relevant Supreme Court decisions with regard to zinā, and determine to what extent and how Supreme Court decisions have developed over time and the current state of this development. Next to the complex of rape and zinā and the issue of proving zinā, I focus on liwāṭ (buggery), another area that is controversial in the fiqh, the codification of which has left unanswered questions. After a short account of the definitions and treatment of the main concepts of zinā and related terms in the fiqh, a synopsis of the treatment of zinā in the 1983 and 1991 codes follows. Wherever available, I use Supreme Court decisions to highlight and explain the application of the law on zinā and the interpretation of the lacunae left by the legislators.

Zinā and Related Offenses in the fiqh Zinā Zinā,2 and acts understood as zinā, are mentioned on several occasions in the Qurʾān. These verses state that

1 See, for example, Sidahmed, “Problems in Contemporary.” 2 It must be noted here that the Christian/western concept of adultery is unknown to Islamic law. Extra-marital intercourse is punished as a crime against religion not as neglect of marital duties. Compare Schacht, An Introduction, 179. In this study, I use zinā, another possibility is zināʾ.

© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_005

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As for those of your women who are guilty of lewdness,3 call to witness four of you against them. And if they testify (to the truth of the allegation) then confine them to the houses until death takes them or (until) Allah appoints for them a way (through new legislation). q 4:15

And as for the two of you who are guilty of it, punish them both. And if they repent and improve, then let them be. Allah is ever-relenting, Merciful. q 4:164 The majority of interpreters maintains that both verses were abrogated by q 24:2, which defines a punishment of 100 lashes for the zānī and the zāniyya if there are four witnesses to the deed.5 Some interpreters believe that verses q 4:15 and 4:16 target homosexuality.6 The Qurʾān does not specify the marital status of those culpable in cases of zinā (i.e., those sentenced to lashing), and does not mention the punishment of stoning at all. Stoning is only mentioned in the sunna, where two ḥadīths testify that the Prophet himself condemned those who committed zinā to be stoned.7 In a more general sense in the fiqh zinā is understood as any unlawful sexual intercourse, that is, committed by two offenders who are not lawfully married to each other. With regard to the act of zinā—not the punishment—it does not matter whether or not the offenders are married, that is, to someone else. According to a majority opinion in the fiqh, if the glans penetrates the vagina,8 ejaculation is not a precondition for zinā. The exchange of caresses is not 3 The word used here is fāḥisha (sin), not zinā. 4 All quotations from the Qurʾān are taken from the translation of Muhammad Marmaduke Pickthall (trans.), The Meaning of the Glorious Qur’an, rev. ed. Dr. S.M. Bleher (Birmingham, uk: Islamic Dawah Centre International, 2016). 5 q 24:2 reads, “The adulterer and the adulteress, beat you each one of them. And let not pity for the two withhold you from obedience to Allah, if you believe in Allah and the Last Day. And let a party of believers witness their punishment.” 6 Nadia Abu-Zahra, “Adultery and Fornication,”Encyclopaedia of the Qurʾān (Leiden: Brill, 2001), 28. What is probably meant here is liwāṭ, that is, penetrare per penem in ano. Compare below. 7 As to the details of these ḥadīths see Rudolph Peters, “Zinā,” Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: Brill, 1960–2004), 11:509. The wording of one of them can be found in Peters, Crime and Punishment, 60. 8 For anal intercourse, see below.

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equivalent to zinā, nor are other sexual acts that do not constitute the kind of penetration described above.9 Legal Uncertainties with Regard to zinā In cases of legal uncertainty, the ḥadd punishment for zinā lapses. Among the possible types of uncertainty is the shubha fī l-fiʿl, a legal uncertainty with regard to the act, for example, a man having sexual intercourse with his legally divorced wife during the period of the ʿidda, with the belief that there is a legal rule that justifies his deed. A second legal uncertainty is the shubha fī l-ʿaqd, that is, a legal uncertainty concerning the marriage contract, namely, contracts that are void, such as a contract with a fifth wife, with one’s own sister or a fictitious marriage. Unlike the other schools, Abū Ḥanīfa is of the opinion that such a contract averts the ḥadd punishment, even if the culprit knows the unlawfulness of the contract in question.10 A third category of legal uncertainty is the shubha fī l-dalīl, which concerns the legal sources, that is, the Qurʾān and the Sunna. Thus, if someone believes that sexual intercourse with a person is permitted, based on an erroneous interpretation of Qurʾān, Sunna, or the legal methods of uṣūl al-fiqh, a legal uncertainty is established and the ḥadd penalty is averted.11 A fourth legal uncertainty called shubhat al-milk can be invoked with regard to property (milk), for example, when a husband engages in sexual intercourse in an unlawful way, believing that it is his right as a husband.12 Punishment of zinā The four Sunnī schools concur in punishing zinā with stoning (rajm) if the zānī or the zāniyya is muḥṣan. Muḥṣan means that the offender is free, adult, Muslim, and has previously engaged in legitimate sexual relations in matrimony. This marriage does not need to exist at the time the crime is committed. The Shāfiʿīs do not require that the muḥṣan be Muslim; for them a dhimmī can be muḥṣan as well. Moreover, Ḥanbalīs and Ḥanafīs require that both offenders be muḥṣan for the punishment of stoning to be imposed. Offenders who are not muḥṣan should be punished with 100 lashes if they are free and with half of that if they are slaves. For all schools, with the exception of the Ḥanafīs, this punishment is followed by banishment of one year. Importantly, there is a rule that the offense must be committed out of one’s free will. As a corollary, a 9 10 11 12

The Shīʿīs make an exception, according to them petting is punishable by 100 lashes. See Peters, Crime and Punishment, 61. El Baradie, Gottes-Recht und Menschen-Recht, 103–104. Ibid., 103. For an example, see the section below, “Liwāṭ within marriage.”

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woman who has been raped cannot be punished for zinā.13 We see below that the requirement that she prove she has been raped has led to serious controversy in modern Sudanese legislation and jurisdiction. In the fiqh, there is a controversy regarding whether or not the penalties are applicable to non-Muslims. The Ḥanbalīs, the Shāfiʿīs, and Abū Yūsuf maintain that being a Muslim is not a precondition, since the Prophet himself ordered the stoning of Jews and this was the first stoning in the history of Islam.14 In other words, zinā by a dhimmī or a mustaʾmin is punishable by ḥadd according to these opinions. However, the Ḥanafīs—with the exception of Abū Yūsuf— and the Mālikīs, are of the opinion that neither a dhimmī nor a mustaʾmin can be punished by the ḥadd penalty because the iḥṣān15 is a precondition for the ḥadd punishment for zinā. Dhimmīs and mustaʾmins, however, cannot be muḥṣan according to these two schools.16 They further reason that the punishment of stoning for zinā constitutes a purification from sin. Dhimmīs and other non-Muslims can only obtain purification by burning in hellfire.17 Liwāṭ (Buggery) Liwāṭ between Males Another issue of contention among the fuqahāʾ is the question of whether or not liwāṭ, meaning (here) anal intercourse between males,18 should be subsumed under the category of zinā and punished accordingly. Among the Ḥanafīs the issue of whether or not liwāṭ falls under the category of zinā is controversial. Abū Ḥanīfa does not consider liwāṭ a ḥadd crime and therefore imposes a taʿzīr punishment on both offenders, the active and the passive one. Kāsānī equally advocates taʿzīr for liwāṭ among males. Other Ḥanafīs, however, disagree. Abū Yūsuf and al-Shaybānī both favor the ḥadd

13 14

15 16 17 18

For the above see Peters, “Zinā,” 11:509 and Peters, Crime and Punishment, 61. Aḥmad Fatḥī Bahnasī, al-Mawsūʿat al-jināʾiyya fī l-fiqh al-islāmī (Beirut: Dār al-Nahḍa alʿArabiyya, 1991), 3:197–198. See also ʿAbd al-Raḥmān al-Jazīrī, al-Fiqh ʿalā l-madhāhib alarbaʿa (Cairo: Dār al-Ḥadīth, 2004), 5:100. For an explanation of the terms of iḥṣān/muḥṣan, see below. Al-Jazīrī, al-Fiqh, 5:101 and Bahnasī, al-Mawsūʿa, 3:197–198. Al-Jazīrī, al-Fiqh, 5:101. Short for penetrare per penem in ano. Anolingus, penetratio per digitum and penetratio per artefactum are not meant by liwāṭ, neither are homosexuality or pederasty correct translations of liwāṭ. See Arno Schmitt, “Liwāṭ im Fiqh: männliche Homosexualität?” Journal of Arabic and Islamic Studies 4 (2001–2002), 51–52. Compare also Arno Schmitt and Jehoeda Sofer (eds.), Sexuality and Eroticism among Males in Moslem Societies (New York, London, Norwood (Australia): Harrington Park Press, 1992), 13ff.

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penalty for both offenders. Both should be stoned if they are muḥṣan and flogged if they are not.19 The Shāfiʿīs compare liwāṭ among males to zinā. Opinions differ as to the punishment. According to some, the muḥṣan should be stoned (or killed by the sword), and the non-muḥṣan should be punished by flogging and banishment. Others hold that the offender should be killed as a taʿzīr punishment in all circumstances, either by causing a wall to collapse on him or by forcing him to jump from a great height. Some hold that the ḥadd is not applicable and that flogging is the due punishment.20 Among Ḥanbalīs opinions differ slightly. Ibn Taymiyya holds that both offenders, the active and the passive one, irrespective of whether or not they are muḥṣan, should be executed by stoning. Ibn Qudāma subsumes liwāṭ among males under the category of zinā and consequently prescribes stoning for the muḥṣan and flogging for the non-muḥṣan.21 Mālik and the Mālikīs advocate the penalty of stoning for the muḥṣan and the non-muḥṣan, whether they are passive or active offenders.22 Arno Schmitt, who has provided us with a thorough and detailed treatise on liwāṭ according to the fiqh, points out that liwāṭ must be defined not only as the penetratio per penem in ano of boys, men, and eunuchs, but also of women.23 Liwāṭ outside Marriage Liwāṭ with a woman one is not married to is controversial among the Ḥanafīs. According to Abū Ḥanīfa a taʿzīr punishment is due, al-Shaybānī and Abū Yūsuf hold that the ḥadd penalty for zinā is applicable.24 The Shāfiʿīs hold differing opinions about the punishment for liwāṭ with a woman one is not married to. The different opinions are the same ones as those concerning liwāṭ among males.25 In analogy to liwāṭ among males, the Ḥanbalī Ibn Qudāma subsumes liwāṭ with a woman outside marriage under the category of zinā. The punishment is, accordingly, stoning for the muḥṣān, flogging for the nonmuḥṣan. The Mālikīs hold that stoning is the due punishment irrespective of whether or not the offender is muḥṣan.26

19 20 21 22 23 24 25 26

Schmitt, “Liwāṭ im Fiqh,” 73–74. See Peters, Crime and Punishment, 61 and Schmitt, “Liwāṭ im Fiqh,” 82. Schmitt, “Liwāṭ im Fiqh,” 84–85. Ibid., 79. Compare to “buggery,” in E. Martin, Oxford Dictionary of Law, 58. Schmitt, “Liwāṭ im Fiqh,” 73. See above. Schmitt, “Liwāṭ im Fiqh,” 79.

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Liwāṭ within Marriage Liwāṭ is punishable even if one is married to the passive partner and therefore is entitled to certain sexual rights. A husband’s rights, however, do not extend to anal penetration. But, all schools agree that liwāṭ with one’s wife is not punishable by ḥadd, because the wife is the object of sexual intercourse (alzawja maḥall li-l-waṭʾ) and the husband has the right to intercourse with her. The fuqahāʾ differ, though, as how to qualify the act as such. Abū Ḥanīfa does not qualify liwāṭ with one’s own wife as zinā, rather it should be considered a minor offense (maʿṣiyya) punishable by taʿzīr.27 Ibn Ḥanbal and Abū Yūsuf opine that the act basically constitutes zinā and is to be punished by ḥadd. Yet, the ḥadd is averted by a legal uncertainty arising from the fact that the husband has certain rights to sexual intercourse with his wife (shubhat al-milk). The offender, therefore, should be punished by taʿzīr.28 The Mālikīs consider liwāṭ with one’s spouse forbidden and prescribe a taʿzīr penalty. The Shāfiʿīs hold that first-time offenders are not to be punished. Recidivists of liwāṭ within a legally valid marriage, however, should be punished by flogging.29 Rape (ightiṣāb) In cases of zinā, the pregnancy of a woman who is unmarried or who is not known to have a husband is taken into account as circumstantial evidence. Pregnancy, however, is not a conclusive evidence (qarīna qāṭiʿa) for zinā for the majority of schools; and pregnancy without a valid marriage does not lead to the ḥadd penalty because the ḥadd only becomes necessary based on valid testimony or a confession. Mālik, however, had a different view on pregnancy as proof for zinā, which— as we show below—plays an important role in the Sudanese penal codes. He was of the opinion that the pregnancy of an unmarried woman is sufficient proof of zinā, and thus makes the ḥadd punishment compulsory. Her claim that she has been raped does not suffice, in itself, to avert the ḥadd. In order to avert the ḥadd punishment on these grounds, she must provide direct evidence (e.g., the confession of the perpetrator or testimony of witnesses) or circumstantial evidence for the plausibility of her defense, consisting, for example, of witnesses who saw her calling for help after the rape, with bloodstained clothing from the loss of her virginity.30

27 28 29 30

ʿAwda, al-Tashrīʿ, 2:353. Ibid. Ibid., and Schmitt, “Liwāṭ im Fiqh,” 81. ʿAwda, al-Tashrīʿ, 2:440–441. For an analysis of the historical development of the Mālikī

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Zinā and Related Offenses in Sudanese Criminal Legislation Compared to the 1983 and 1991 legislation, the secular codes of 1924 and 1974 provided for relatively mild punishments for adultery. Interestingly, even though chapter xxv of the Penal Code of 1974 was a faithful importation of the 1924 code,31 the 1974 code changed one important aspect of it. In the 1924 code adultery was only punished—relatively mildly, with a prison term not exceeding two years or a fine or both—if the respective husband had not agreed to his wife having sexual intercourse with another man. If he had given his consent, the adultery remained unpunished. This clause effectively gave a husband a way to save his unfaithful wife from prison; however, it was omitted in the 1974 law. While the penalties remained the same, adultery, when committed with or by a married woman, with or without the consent of the husband, was punishable.32 By contrast, adultery committed by a married man with an unmarried woman, and sexual intercourse between consenting, unmarried, adults was not punishable. Thus, in both codes the legislators focused on the rights of the husband. A wife had to bear with an unfaithful husband, as long as he did not infringe upon the rights of another husband or have intercourse with a girl under the age of eighteen.33 Neither code, unlike their successors in 1983 and 1991 in the case of zinā, defines “sexual intercourse.” Anal intercourse—“carnal intercourse against the order of nature”—however, is subsumed under “Unnatural Offenses”34 and is punishable by up to fourteen years (in the 1924 code) and twelve years (in the 1974 code) in prison, if committed without consent, that is, if it constituted anal rape. With respect to anal intercourse the 1974 code introduced more severe legislation: while in 1924

31 32 33

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doctrine on zinā see Delfina Serrano Ruano, “La lapidación como castigo de las relaciones sexuales no legales (zinā) en el seno de la escuela Mālikí: doctrina, práctica legal y actitudes inviduales frente al delito (ss. xi y xii),” Al-Qantara 26, no. 2 (2005): 449–473 and Delfino Serrano, “Rape in Maliki Legal Doctrine and Practice (8th–15th centuries c.e.),” Hawwa 5, nos. 2–3 (2007): 166–207. Chapter xxvi, The Penal and Criminal Procedure Codes of the Sudan, London 1924. Compare Penal Code of 1974, art. 429 and 430. The Penal Code of 1974 made sexual intercourse with girls under eighteen punishable. Sexual intercourse with girls under sixteen was considered to be rape, which was punished with imprisonment for up to fourteen years and possibly a fine (Penal Code of 1974, art. 316). If the girl was between sixteen and eighteen, her consent was also meaningless, the punishment for the adult man was, however, lighter. He may have been punished with imprisonment for up to two years or with fine or both (art. 316 (a)). Penal Code of 1924 and Penal Code of 1974, art. 318.

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anal intercourse between consenting adults was not a crime at all,35 the Penal Code of 1974 stipulates a prison term of up to two years for both consenting partners. Neither code accepts the consent of the minor as a defense. The 1924 code states that a minor below the age of sixteen cannot give his/her consent to anal penetration, while in the Penal Code of 1974 the age of consent was increased to eighteen years.36 However, as mentioned, in the later code, anal intercourse between consenting males is a crime regardless of age. It is worth noting here that the wording of Article 318 in the Penal Codes of 1924 and 1974 is equally imprecise. In an explanatory note, “penetration” is said to be what is sufficient to constitute “carnal intercourse.” It is unclear whether anilingus, penetratio per digitum and penetratio per artefactum are included in this definition or whether only penetrare per penem in ano is meant.37 Definition of zinā in the Penal Code of 1983 In the Penal Code of 1983 zinā was defined as inserting one’s penis or glans, or the equivalent of the length of a penis from which the glans has been cut off (aw mā yuʿādiluhā min maqṭūʿihā) into the vagina of a person38 or into his/her anus without legal bond [existing between the two people] or by allowing [as the passive partner] someone else to insert his penis in the said way.39 This definition could be understood to subsume liwāṭ—committed either with a man or with a woman—under zinā, following a majority of schools and ignoring the minority opinion of the Ḥanafīs, who punish liwāṭ, whether perpetrated with a woman or a man, by taʿzīr (flogging).40 The qualification “without legal bond,” however, makes this interpretation unlikely, despite the fact that the text only

35

36 37 38

39 40

Note that at the time, British law was not quite so liberal. Homosexual practices between two consenting males over twenty-one in private were only legalized by the Sexual Offences Act, 1967. See James, Introduction to English Law, 199. In the meantime, buggery has become legal if committed by consenting males in private who are at least sixteen years of age. See Elizabeth A. Martin (ed.), Oxford Dictionary of Law, ‘homosexual conduct,’ 233; and ‘buggery (sodomy),’ 58. However, punishment is due even if consent is given. See above. Compare Schmitt, “Liwāṭ im Fiqh,” 52 n. 5. The term used here is muṭīq, meaning a woman or a girl capable of sexual intercourse. According to many scholars, the status of muṭīq does not necessarily coincide with majority (bulūgh, that is, the beginning of menstruation). Girls can reach the status of muṭīq before menstruating the first time. Penal Code of 1983, art. 316 (1). Compare Peters, Crime and Punishment, 61.

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speaks of a “person” and not of a woman, as the passive partner of such intercourse. We shall see below how the Supreme Court dealt with the ambiguity of the text. The Penal Code of 1974 (Art. 318) stated that “carnal intercourse against the order of nature” should be punished with a maximum prison term of two years and possibly a fine, by comparison, a rather light sentence. If the act was done without consent, the punishment was a maximum prison term of twelve years. Since rape was punishable by a maximum prison term of fourteen years, anal rape was punished more lightly than vaginal rape. This differentiation was abolished in the Penal Code of 1983. The legislators also dealt with the unlikely case of someone committing zinā with someone with a mutilated penis.41 Therefore, if the classical definition of zinā does not apply because the glans is missing, it is still considered zinā if an equivalent part of the penis in its mutilated or cut form is inserted.42 As shown above, free will is one of the necessary preconditions for zinā: the act must be committed voluntarily. If a woman is raped, she cannot be punished for zinā. As we show below, the intricacies of rape and its proof resulted in an important set of decisions by the Sudanese Supreme Court. The Penal Code of 1983 stipulates, without further explanations or examples, that sexual intercourse (as stipulated under Article 316, i.e., zinā) with a minor constitutes rape and the offender should be punished with the punishment for zinā.43 This definition of rape was curious for two reasons. First, it does not mention the notion of coercion, which is generally an intrinsic part of the definition of rape.44 Therefore, sexual intercourse between an adult man and an underage girl who consents to such intercourse automatically constitutes rape. This provision on rape is another example how the introduction of Islamic precepts into the penal code led to incongruities. Not only was the stringent definition of rape, as stipulated in the Penal Code of 1974, jettisoned unnecessarily, but also, the Penal Code of 1983 merged, somewhat incoherently, the 1974 provision on “sexual intercourse with girls between sixteen and eighteen” (Art. 316 a) with the crime of rape, thus leading to an imbroglio. While the 1983 legislators—in accordance with the fiqh45—did not take into

41 42 43 44 45

This case can be found in the classical books of fiqh. Communication by R. Peters. Since the legislators wanted to define liwāṭ with woman and men in one article, the neutral formula used is “… into the vagina of a … person …” instead of “woman.” See art. 318 (1). In the United States this is called statutory rape; since the consent of a minor is legally irrelevant, coercion is assumed by law. See Peters, Crime and Punishment, 20–21, chapter on mens rea.

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account the notion of a minor with free will,46 it is unclear why sexual intercourse with a consenting minor, that is, statutory rape, was the only definition of rape that was codified. Second, the 1983 definition of rape effectively leaves an important lacuna: the crime of raping an adult woman is not defined. In other words, it only allows for the crime of rape in relation to minors, female or male, consenting or not, vaginally or anally. Because the vaginal and anal rape of an adult person was not punishable as such by the Penal Code of 1983, logically it had to be treated under the provisions for zinā. As we show below, it was left to the Sudanese Supreme Court to sort out the legal consequences for “both” offenders. As in other instances, the Penal Code of 1983 not only widened the applicability of ḥadd offenses with regard to the fiqh, it also subsumed related crimes under the respective ḥadd offense and introduces ḥadd punishments for offenses which do not fulfil the qualifications of a ḥadd crime according to the fiqh. Thus, Article 318 (a) stipulates that Whoever runs a locality where zinā is being committed or [one designed] for the practice of forbidden sexual acts, be that place immobile or mobile, or whoever helps or instigates or abets to committing these acts, will be punished by flogging and fine and imprisonment. And in the case of a second conviction the offender will be punished by capital punishment and crucifixion or cross-amputation. It should be noted that the notion of “forbidden sexual acts” includes the rather vaguely defined “shameless/sinful acts” ( fiʿl fāḥish) with a human being or an animal, as stipulated in Article 319 of the Penal Code of 1983. Further, it goes without saying that running a brothel is different from committing zinā. Thus, all schools agree that the repeat offender can be punished with the capital punishment by way of taʿzīr.47 Cruxifixion and cross-amputation, however, are ḥadd punishments and are reserved for the respective ḥadd crimes only.

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47

Even in 1974 this had no impact on the punishability of sexual intercourse with a minor as such. If the minor consented to the sexual intercourse, however, the maximum sentence of two years’ imprisonment was rather light in comparison to a maximum sentence of fourteen years’ imprisonment for rape (art. 317). Peters, Crime and Punishment, 67.

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Zinā in the Draft Criminal Bill of 1988 and in the Criminal Act of 1991 The definition of zinā in the draft Criminal Bill of 1988, which was reconfirmed in 1991, endorses most basic elements of the 1983 definition. Thus, zinā is defined as sexual intercourse48 between a man and a woman without there being a lawful bond between them. As in the 1983 law, the glans or its equivalent must penetrate the vulva. One of the most important innovations in the Criminal Bill of 1988 and the Criminal Act of 1991 is the distinction that is made between liwāṭ and zinā. Liwāṭ49 is no longer subsumed under zinā, but is separately defined as a man penetrating the anus of a woman or another man with (at least) his glans or its equivalent. As in the case of zinā proper, the passive partner permitting the penetration is also guilty of the crime if the crime is committed by one’s own free will. It should be noted here that this article makes liwāṭ among consenting spouses a crime (at least theoretically), while in 1983, liwāṭ within a legally valid marriage was not punishable. In the fiqh we can find opinions that justify both views (as noted above). With regard to rape, the codes of 1988 and 1991 were modified: the earlier definition of rape as sexual intercourse with a minor was abolished. Rape was defined as sexual intercourse with a person either “by way of zinā (zināan) or by way of liwāṭ (liwāṭan)” without the consent of that person.50 In a further qualification the article stated that “consent shall not be recognized where the offender has custody (qiwāma) or authority (sulṭa) over the victim.”51 This definition solved several problems: First, the vaginal and anal rape of a woman and the anal rape of a male person thus became punishable. Under the Penal Code of 1983 it had to be treated as zinā. Second, this definition included minors.52 Third, the notion that the victim did not consent, conspicuously absent in 1983, was introduced into the definition. Here a qualification came into play that stipulates that a person in the custody of, or under the authority of, the perpetrator of the rape was legally incapable of consenting to sexual intercourse. That is, sexual intercourse between an adult man and his ward was automatically classified as rape, since the ward’s consent to the intercourse is

48 49

50 51 52

Here sexual intercourse means vaginal intercourse, see below. The translation of the Criminal Act of 1991, published in the Arab Law Quarterly, renders liwāṭ as “homosexuality,” which leads to the curious notion that a man penetrating a woman’s anus with his penis is committing the offense of homosexuality. Liwāṭ, as explained earlier, merely means the act of penetratio per penem in ano, not a sexual attitude. Criminal Act of 1991, art. 149. Criminal Act of 1991, art. 149 (2). See the discussion of the case “Maṣʿab Muṣṭafa Aḥmad” below.

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not recognized. While minors who are raped fall under the term “person” as defined by Article 149,53 the case of consenting minors, male or female, not under the custody of the adult he or she has sexual intercourse with, were most probably treated (we found no cases clarifying this issue) under zinā. Statutory rape, in contrast to the Penal Codes of 1974 and 1983, has been omitted in the Criminal Act of 1991. Fourth, anal rape of a wife by her husband became punishable—at least theoretically—for the first time in the history of codified penal codes in the Sudan. The 1924 and 1974 codes had exempted rape within marriage from the definition of rape and left the perpetrator unpunished. In 1983, rape among adults was not properly defined at all. With regard to rape other than anal rape within marriage, Article 149 only speaks of “intercourse by way of zinā (without consent).” This association with zinā, which also appears with regard to the punishment (see below), seems to exclude the possibility of punishing vaginal rape in marriage under Article 149. There are no published Supreme Court cases available that might shed light on this question. With regard to the punishment of rape it should be noted that in 1988 and 1991 the Sudanese legislators distinguish between two different cases.54 The first case, punished by 100 lashes and a prison term up to ten years, is rape that does not amount to zinā or liwāṭ. The second case, rape that constitutes the offense of zinā or liwāṭ without consent, is punishable with capital punishment. The Criminal Act of 1991 does not specify when exactly rape is committed “by way of zinā” or “by way of liwāṭ” but does not amount to zinā or liwāṭ proper and which specific acts are meant here. These questions are addressed in the more detailed definition of rape in the amendments of 2015 (see below). It also remains unclear whether such acts, since they do not amount to zinā, could be punished if they happen within marriage, or whether the formula “by way of zinā” categorically precludes such an interpretation. The formula “by way of zinā” also seems to suggest that a lower level of proof is needed to reach a conviction, compared to zinā proper. As to the second possible punishment (capital punishment if the rape constitutes zinā or liwāṭ), there are no Supreme Court cases available to clarify its meaning. Since zinā, according to the Criminal Act of 1991 describes sexual intercourse between a man and a woman not connected by a legal bond, then rape that constitutes zinā, in the sense of Article 149 (3), would have to be

53 54

The definition of “person” includes natural persons (adult and minor), Criminal Act of 1991, art. 3. See Criminal Act of 1991, art. 149 (3).

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interpreted as the rape of a woman who is not married to her rapist, and this would be proven in a way similar to zinā, that is, either by a confession or four male witnesses of good reputation. If rape constitutes liwāṭ, it can be committed against women and men, adults and minors (similar to rape by way of zinā). Since liwāṭ proper is punishable (at least theoretically) even if it happens within marriage, then Article 149 (3), if interpreted literally, would allow for capital punishment for the husband who anally rapes his wife. It should also be noted here that zinā and liwāṭ as such are committed by consenting partners.55 In the case of rape, however, there is no “partner in crime,” only victim and perpetrator. The Criminal Act of 1991 leaves open whether or not liwāṭ is to be considered a ḥadd crime and therefore, it is not clear whether the stricter rules of evidence for ḥadd crimes apply in a case of rape constituting liwāṭ. The Penal Code of 1983 also drew the offense of incest under the umbrella of zinā, in contrast to the earlier code of 1974 that made incest punishable with a relatively harsh maximum prison term of seven years (compared to a maximum of two years for adultery in the Penal Code of 1974, art. 429 and 430). The definition of incest in Article 432 of the Penal Code of 1974 and the Penal Code of 1983 includes sexual intercourse with male/female ascendants and descendants, sisters/brothers, their daughters and sons and aunts and uncles.56 In the 1983 code, for the crime of incest, non-Muslims were punished by flogging and a fine or prison. By contrast, Muslims were subject to the ḥadd penalty for zinā. This led to the paradoxical situation that non-Muslims were subject to the prescribed punishments for unlawful sexual intercourse but only faced a taʿzīr punishment in cases of forbidden sexual intercourse with relatives, while for the same offense Muslims were liable to the ḥadd punishment for zinā. In 1991, the legislators changed this situation, inasmuch as the Criminal Act of 1991 no longer makes any distinction between Muslim and non-Muslim offenders. Second, the definition of incest was fine-tuned to include unlawful sexual intercourse (zinā), penetratio per penem in ano (liwāṭ), and rape of blood relatives and relatives related by marriage. The latter two offenses were codified here for the first time. Both Muslims and non-Muslims alike are liable to the punishments designated for zinā, liwāṭ, and rape (here in

55 56

Compare Criminal Act of 1991, articles 145 (1) (b) and 148 (1). The definition of the Penal Code of 1974 includes “relatives of the half blood and relatives whose relation is not traced through a lawful marriage.” Penal Code of 1974, art. 432. Penal Code of 1983, art. 432, adds “milk relatives” to the definition of relatives. This part of the definition, however, is restricted to Muslims. Compare Penal Code of 1983, art. 432.

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the context of incest) and in cases in which the death penalty is not imposed, there is an additional maximum prison term of five years.57 The Criminal Act of 1991 also eliminated the indiscriminate usage of ḥadd penalties for sexual crimes. Thus, instead of facing the death penalty and crucifixion or cross-amputation for a second conviction for running a place for prostitution, the Criminal Act of 1991 now distinguishes between first, second, and third time offenders. Crucifixion and cross-amputation are no longer applicable in any case. Possible punishments are flogging, imprisonment or closing/forfeiture of premises. Third-time offenders, however, face the death penalty. Whoever is found in a place of prostitution, that is, whoever is likely to perform sexual acts (in that place) or earn therefrom is guilty of “practicing prostitution” and can be punished with flogging (a maximum of 100 lashes) or with imprisonment of up to three years.58 The Amendments of Article 14959 In February 2015, amendments to Article 149 on rape came into effect.60 While retaining the same punishment for rape, this amendment defined rape differently from and more precisely than its predecessor in 1991. Instead of using the terms “by way of zinā” or “by way of liwāṭ,” phrases that caused multiple problems as described above, rape is now defined as the “penetration of a sexual organ or any instrument or part of the body into the opening of the vulva of the aggrieved party or into his anus”61 by the “use of force or the threat to use force or duress.” It is noteworthy that for the first time, the amendment introduces the notion of the use of physical and psychological force into the definition. Another important change is the reference to vaginal or anal rape by means of an instrument. Given the multiple possibilities of rape in war situations, this cannot but be considered an important and necessary change that reflects the sad reality of mass rape in times of (civil) war. Interestingly, the new definition of rape only refers to “persons” involved in the rape. Since the text does not specify whether these persons are married or not, theoretically intramarital rape also falls under the new definition, albeit the likelihood of being

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Criminal Act of 1991, art. 150 (2). See Criminal Act of 1991, art. 154 and 155. For the following, see, Amendment to the Criminal Act, 2015. On the political background of this amendment see Liv Tønnessen, “Enemies of the State: Curbing Women Activists Advocating Rape Reform in Sudan,” Journal of International Women’s Studies 18, no. 2 (2017): 143–155. The Arabic text of the amendment uses the male possessive pronoun “his.” It is not clear whether the intention was to define anal rape of males as well.

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punished for intra-marital rape in a Sudanese court is most likely minimal. The neutral term “person” suggests that the anal rape of men is also covered by the amended Article 149. Unfortunately, the distinction between rape on the one hand and zinā and liwāṭ on the other hand only concerns the definition. Former Article 149 (3) (now renumbered 149 (2)), which stipulates the punishment for rape, remains unchanged. As before, the punishment for rape is 100 lashes and a prison term up to ten years, unless the rape constitutes the crime of zinā or liwāṭ that is punishable with the death penalty. Clearly, the incongruity between the definition of the crime and its corresponding punishment raises questions and leads to additional confusion in judicial practice. Since the new definition does not mention the terms zinā and liwāṭ, we cannot understand when rape might constitute the crime of zinā or liwāṭ any longer, especially since these are two sexual acts committed by consenting partners, while the most important constitutive element of the definition of rape is the use of physical and/or psychological force and therefore the lack of consent of the aggrieved party. One can only conclude that the amendment of Article 149 is inconsistent and contradictory. It creates a legal situation in which women do not enjoy full legal protection against their rapists and in which pregnancy as a result of rape can still be construed as proof of zinā. The reactions of Sudanese and foreign civil society actors have been mixed and range between outright criticism to cautious optimism. Some see the amendments as the result of, and a huge victory for, their long campaigns for change.62 It is, however, unlikely that these changes will indeed strengthen the positions of women in Sudanese courts. Given the remaining contradictions, it is unlikely that these changes will encourage women to report their rapists, particularly given the social stigma widely associated with rape. As one organization surmises, the largely improved definition of rape might mean that the lengthy judicial processes in rape cases, which are highly traumatic for the concerned women, can be avoided.63 However, we should not overlook the fact that the Evidence Act of 1993 has not been changed in line with the amendments of Article 149. Pregnancy as a proof of zinā remains in the statutes. While the Supreme Court has come to construe (alleged) rape as a legal uncertainty, leading to the remittance of the ḥadd penalty, it is not likely that a better defi62

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It seems that many of the commentators have read the amended article 149 only superficially. The fact that the new article 149 (2) (formerly 149 (3)) still connects rape to zinā and liwāṭ seems to have gone unnoticed by many. Women Living Under Muslim Laws (June 2015): Sudan’s Revised Penal Code: A Mixed Picture for Women, 4. Available online: www.wluml.org/sites/wluml.org/files/Sudans_ Revised_Penal_Code_Mixed_Picture_WLUML_2015_0.pdf, accessed 16 May 2017.

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nition of rape alone will lead to speedier court proceedings, let alone financial compensation for the time an innocent victim of rape spends in prison. At any rate, in the absence of modern forensic methods in Sudanese courts, proving rape remains very difficult for women, regardless of whether a pregnancy is involved.

Zinā and Related Offenses in Supreme Court Case Law Liwāṭ: The Supreme Court and Anal Intercourse between Males64 The ambiguous wording of Article 316 of the Penal Code of 1983 on zinā and liwāṭ created uncertainty for the judges, as we see from the following case, which dealt with anal intercourse between males (liwāṭ). In January 1989, a twenty-year-old male student was sentenced to a prison term of three years under Article 319 (“Indecent acts”) of the Penal Code of 1983 by the first degree criminal court in Khartoum, Bahri East.65 He was convicted of committing a “crime contrary to nature,” meaning anal intercourse between males (in the case at hand the victim was a minor). The lawyer for the defendant appealed to the provinicial court, which changed the indictment and sentenced him under Article 318 (punishment for zinā) and Article 458 (3) (taʿzīr punishment), for cases in which the ḥadd penalty is averted even in the absence of a specific legal text. Despite the more serious charges, the sentence was reduced to a prison term of two years, thus he received a taʿzīr punishment because the ḥadd punishment had lapsed (Art. 458 (3)). A second appeal reached the court of appeal, which upheld the modified judgment of the provincial court. Subsequently, the Supreme Court reversed the modified sentence under the article on zinā (318),66 by arguing that the Penal Code of 1983 defines zinā exclusively as unlawful sexual intercourse between a man and a woman and does not address any kind of sexual acts between members of the same sex. This judgment was made, despite the ambiguous definition of zinā in Article 316, which does not mention women explicitly as the passive partner, but refers to a “person” (shakhṣ) being vaginally or anally penetrated. The Supreme Court clearly indicates that anal intercourse between members of the same sex is not

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For reasons of expediency, I use the abridged notion of “anal intercourse,” which should be read as “penetrare per penem in ano.” For a lucid and detailed discussion of the semantic field of liwāṭ and the pitfalls in translating it, see Schmitt, “Liwāṭ im Fiqh,” 52–53. Government of the Sudan vs. al-Ṣādiq Aḥmad ʿAbdallāh, sljr (1989), no. 149/1989. Punishment of zinā.

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covered in Article 316, by quoting the expression, “without legal bond,” which, according to Sudanese family law and Islamic law, could not exist between partners of the same sex. The Supreme Court further points out that the fuqahāʾ differed on whether or not anal intercourse falls under the definition of zinā. Mālik, al-Shāfīʿī, and Ibn Ḥanbal, as well as the Twelver Shīʿīs and the Zaydīs, consider anal intercourse and zinā as analogous, in the sense that anal intercourse, that is, liwāṭ, falls under the category of zinā, even if it is practiced between two men. However, Abū Ḥanīfa—and here I follow the Supreme Court’s argument—holds that anal intercourse does not fall under zinā, regardless of whether the penetrated person is female or male, since anal penetration has its own category, namely “liwāṭ”; and this is evidence of a difference in meaning. And “no ḥadd shall be imposed on those who commit the acts of the people of Lūṭ.” The difference in opinion between the fuqahāʾ and the fact that liwāṭ does not effect lineage (this is considered one of the negative effects of zinā that justifies its severe punishment) are the main arguments that led the Supreme Court to the conclusion that liwāṭ is not covered by Article 316 (definition of zinā) but rather falls under Article 319 of the Penal Code of 1983 (indecent acts, i.e., fiʿl fāḥish).67 Accordingly, since the offense in question is not considered a ḥadd, but a taʿzīr crime, the requirements for proving (the ḥadd crime of) zinā do not apply in this case. However, the medical report and the confession of the defendant convinced the Supreme Court that the defendant perpetrated the crime in question. In the conclusion of its decision and after having quashed the modified decisions of the provincial court and the court of appeal, one of the three judges of the Supreme Court who dealt with this case concluded that the prison terms— of three (in the initial judgment) and two years (in the appeal) respectively—of the lower instances were not proportional to the dangerous deed the defendant committed and were too light. He argued that anal intercourse between males is condemned in the Qurʾān and that the companions of the Prophet agreed to punish it by execution, for example, by stoning. In order to further underline the need for a severe punishment, the Supreme Court judge referred to the abolished Penal Code of 1974, which stipulated a prison term of up to twelve years for anal intercourse with a young boy.68 His two colleagues, among them

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The punishment for indecent acts is flogging, a fine or prison, Penal Code of 1983, art. 319. The Supreme Court reference is to the Penal Code of 1974, art. 318, which stipulates that a person below eighteen cannot consent to “carnal intercourse against the order of nature.” Such intercourse is therefore treated on a par with anal rape which was punishable with imprisonment which may extend to twelve years.

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the president of the panel, agreed with their colleague with regard to dealing with the case under Article 319 (‘indecent acts’) of the Penal Code of 1983. Both, however, deemed the prison term of three years as promulgated by the trial court as sufficient, given that the defendant had no police record and was just twenty years old.69 The second case under discussion deals with the overlapping crimes of zinā, liwāṭ, and the rape of a minor. The facts of the case can be summarized as follows: an eight-year-old boy was sent by his mother to a shop in order to fetch some necessities.70 The boy returned to her crying and when she asked him what had happened, she learned that he had been sexually assaulted and raped. When she examined him, she found traces of forced intercourse on his anus. She filed a complaint and the child was brought to a doctor. The medical report confirmed forced anal intercourse. The owner of the shop, Maṣʿab Muṣṭafā Aḥmad, was brought to trial and convicted under Article 149 (rape) of the Criminal Act of 1991, then sentenced to 100 lashes and a prison term of three years. Subsequently, the court of appeal supported the decision under Article 149 of the Criminal Act of 1991, but lowered the penalty to 80 lashes and two years’ imprisonment. It should be noted that the text of Article 149 defines 100 lashes as a compulsory (not a maximum) punishment, while the prison term is limited to a maximum of ten years. The father71 of the defendant contested the decision of the court of appeal, demanding the annulment of the conviction and the release of the defendant. In particular, the father of the defendant claimed that: (1) There was no evidence for the charge and that the court(s) had relied on the testimony of the victim’s mother, who was not an eyewitness; (2) the court did not listen to the testimony given by the doctor; and (3) the court did not accept the results of the examination of the clothing of the accused, even though the result of this examination was in his favor.72 The Supreme Court accepted the father’s request to review the original verdict and decided that the trial court’s judgment had been correct and con-

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Panels of the Supreme Court each consist of three judges presided over by the most senior member thereof. Their decisions are reached by a majority. Thus, the vote of the panel’s president has no more weight than the vote of his colleagues. Compare Trial of Maṣʿab Muṣṭafa Aḥmad, sljr 2000/545, pp. 58–63. This on the basis of Criminal Procedure Act 1991, art. 188. The article allows the Supreme Court and the court of appeal to review criminal cases upon request. The text is rather general and also allows family members to make such a request, as is the case here. This probably means that the results of the examination of the clothing of the accused did not corroborate the charges.

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firmed the original punishment of 100 lashes and a prison term of three years. In their deliberations, the Supreme Court judges allude to several obscure wordings of the Criminal Act of 1991 with regard to the definitions of zinā and liwāṭ in connection to rape. These definitions of zinā and liwāṭ are important in the context of rape, because Article 149 of the Criminal Act of 1991 explicitly refers to them. Thus, in order to understand what constitutes rape, one must read its definitions in conjunction with the definitions of zinā and liwāṭ. Article 149 (rape) defines the possible victim of rape rather ambiguously. On the one hand, the more neutral term “person” (shakhṣ) is employed. On the other hand, the text stipulates that rape is committed when someone “… has sexual intercourse with a person by way of zinā (zināʾan) or by way of liwāṭ (liwāṭan) without the consent of that person.” The formula “by way of zinā or by way of liwāṭ” is a clear reference to the definitions in Articles 145 and 148. These articles that define zinā and liwāṭ only mention adults, at least explicitly. The words used here are “woman” (imraʾa) and “man” (rajul) and thus leave no room for any other interpretation.73 As a consequence, consenting minors are not covered by the wording of Articles 145, 146 (zinā), and 148 (liwāṭ). As to the interpretation of the term “person” (shakhṣ), the judges came to the conclusion that it includes minors and that the definition given in Article 149 indeed comprises “all forms of vaginal or anal sexual intercourse with a person under compulsion.” In its final conclusion, the Supreme Court found that the case at hand was fully consistent with the definition of rape as given in Article 149 and therefore it annulled the decision of the court of appeal. Proof of zinā by Confession in the Supreme Court The question of who exactly must confess to zinā came up in a case in 1984.74 In the case at hand, the defendant had admitted to theft from a house and to zinā with a woman who had been in the house. The two crimes were dealt with separately and he was indicted for zinā before the provincial court of al-Fāshir, under Article 318 (1) of the Penal Code of 1983. He was sentenced to death by hanging after confessing to the crime three times.75 The woman, however, supposedly his “partner in crime,” denied that she had ever met or seen the defendant, or committed zinā. In consequence of her denial, the court

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Criminal Act of 1991, art. 3, defines “man and woman” as follows: “Man” means the adult male, and “Woman” means the adult female. Government of the Sudan vs. Muḥammad Maḥmūd Ṭāhir, sljr (1984). According to the Evidence Act of 1983 one confession was enough to prove zinā. See Evidence Act of 1983, art. 77 (1).

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considered her innocent and she was acquitted. In his appeal, the defendant retracted his confession and claimed that it had been obtained under threat and after he had been beaten. The Supreme Court finally commuted the ḥadd penalty to a taʿzīr penalty of 80 lashes and one year in prison. The ḥadd penalty lapsed on the grounds that the confession had been retracted (based on Article 77 of the Evidence Act) and on the grounds that the woman (allegedly involved in the crime) had accused the defendant of lying. This judgment is noteworthy for several reasons. First, because the woman’s allegation that the defendant had lied and the ensuing inconsistency were construed by the Supreme Court as a legal uncertainty that necessarily averted the ḥadd for the defendant. Here the court followed the opinion of Abū Ḥanīfa, who held that in such cases the ḥadd is averted and taʿzīr is compulsory. Second, the case aptly demonstrates certain inconsistencies concerning the legal grounds for punishment of those involved in a ḥadd crime. While the defendant was finally sentenced under Article 319 (“indecent acts”) his female partner in crime went unpunished. In other words, the Supreme Court held that a sexual act of some sort had indeed taken place, despite the fact that the only proof available, the defendant’s confession, had been retracted. It deemed this sexual act punishable as an obscene act, since zinā could not be proven. It did not explain the nature of this act or how this obscene act could have been committed by one person alone—there is no allegation of rape or coercion—and the court did not specify what the proof of this act was, after the confession had been retracted. It appears that the court simply followed Abū Ḥanīfa who, in such cases, made a taʿzīr punishment compulsory when the ḥadd punishment was averted. Supreme Court Judgments on Pregnancy as Proof of zinā The following three cases demonstrate how the Supreme Court dealt with zinā cases in which pregnancy was a key element for a lower court conviction of zinā. Case 1 In the first case a certain Aḥmad Muḥammad ʿAbdallāh from Dār Fūr accused his wife Maryam Muḥammad ʿAbdallāh of illegitimate sexual intercourse with another man during his twelve-month absence in Khartoum.76 Upon his return to his village, he found her pregnant. On questioning, she named a certain Ibrāhīm Jār al-Nabī as her sexual partner. Criminal charges against al-Nabī were

76

Government of the Sudan vs. Maryam Muḥammad ʿAbdallāh, sljr (1985), no. 21/1405.

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brought forward under Article 429(2)77 and 430(2).78 A medical examination of the first defendant established that she was in the seventh month of her pregnancy. The criminal court then released the second defendant al-Nabī for lack of evidence and convicted Maryam Muḥammad ʿAbdallāh under Article 318 (1)79 of the Penal Code of 1983; she was sentenced to death by stoning based on her confession to zinā, and under Article 434 (qadhf ), she was also sentenced to 80 lashes. After reviewing the case the Supreme Court upheld the sentence for zinā of a muḥṣana, that is, execution by stoning. The conviction for qadhf was quashed, since the slandered party (maqdhūf ) had not filed a complaint. In its deliberations, the Supreme Court judges explained that the conviction was based, first, on her confession, which she upheld during all the stages of the trial procedure. Second, the conviction was based on the pregnancy. While an unretracted confession is indeed valid proof for zinā, it should be noted that the defendant claimed that she had been forced to commit zinā against her will. The court could easily have construed this claim as an implicit retraction of her confession and therefore as grounds for legal uncertainty. The claim of rape was, however, dismissed by the court, which held, in harmony with an opinion of Mālik, that the accused must provide evidence in her defense. Sidahmed, in addition, points out that her alleged partner’s denial of the charges should also have shed doubt “on the integrity of her confession and should have been treated as a shubha remitting the ḥadd.”80 According to Article 77 (3), pregnancy is only taken into account if the woman is not married. In this particular case, however, the Supreme Court reasoned differently, and in contradiction to an unequivocal legal text. Since it was proven that the husband of the defendant had been absent for more than a year and the accused admitted that she had menstruated more than once after the departure of her husband, it was established that the defendent was not pregnant at the time her husband left. The court, therefore, considered the situation of a married woman whose husband is absent for a long time as equivalent to that of a non-married woman who becomes pregnant illegally.

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Zinā of a Muslim with a married woman. It is unclear why the court indicted the defendant under this article. While article 429 defines zinā (of a man) with a married woman, article 430 defines zinā committed by a married woman. The article stipulates the punishment for zinā: execution of the muḥṣan and 100 lashes for the person who is not muḥṣan. Sidahmed, “Problems in Contemporary,” 195.

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Case 2 In a second case,81 and in contrast to the previous case, the Supreme Court concluded that pregnancy is not unequivocal proof of zinā. The facts of the case can be summarized as follows: in 1984, a certain Maryam Muḥammad Sulaymān was denounced by a hospital for giving birth to an illegitimate child. A criminal court convicted her under Article 318 (1) of the Penal Code of 1983, in conjunction with Article 77 (2) of the Evidence Act of 1983, in view of the fact that she had been divorced for three years when the charges were brought forward and because the crime of zinā is proven by pregnancy if the woman has no husband. The court considered that the defendant was a muḥṣana, despite being divorced.82 The defendant admitted, during all stages of the investigation and the trial, that she was divorced and that she had become pregnant through illegitimate sexual intercourse with a certain ʿAbd al-Raḥīm Muṣṭafā. The latter denied the charges and was released in an early stage of the investigation for lack of evidence. On the grounds of her pregnancy and her confession she was sentenced to execution by hanging.83 In May 1985 the lawyer for the defendant requested to review the sentence based on the withdrawal of her confession. The defendant now stated that she had not been married previously and that her admission to a previous marriage had been the result of her psychological condition. She also stated that she had been forced to commit zinā. Unlike the trial court, the Supreme Court concluded that pregnancy should not be considered unequivocal evidence for zinā. Evidence that proves that the pregnancy was not caused by zinā (but, for example, by rape) is admissible. It further reasoned that when it is probable that the pregnancy was the result of sexual intercourse by force (rape) or “by mistake” or if the pregnancy “happened without penetration to maintain virginity,”84 the ḥadd punishment is averted. The defendant retracted her initial confession to being divorced and no other proof of a previous marriage was presented, other than the earlier confession of the defendant. Further, on the strength of her

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See Government of the Sudan vs. Maryam Muḥammad Sulaymān, sljr (1989), 76/1405. This view is in clear contradiction to the earlier judgment in Government of the Sudan vs. ʿĀmina Bābikr Aḥmad, sljr (1985), no. 118/1405, which established that the status of muḥṣan was linked to an existing marriage only. For more detail, see the discussion below. Stoning was introduced as a possible punishment in the Penal Code of 1983 (art. 24b). Article 318(1) however, specifies execution as the punishment for zinā for the muḥṣan. This contradiction with the fiqh was rectified in the Criminal Act of 1991, art. 146 (1) (a). The decision of the Supreme Court does not explain what exactly is meant by these two cases.

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claim of rape and the retraction of her confession to zinā, the Supreme Court did not endorse the conviction under Article 318 (1) (the punishment for zinā) but ordered the release of the defendant. The defendant had spent almost five years in prison and this was considered a sufficient taʿzīr penalty. The court did not explain why a taʿzīr penalty was considered appropriate at all, since rape had been accepted, at least as a possibility. Case 3 In a third case, based on the Criminal Act of 1991, the Supreme Court again concluded that the claim of rape should be considered a legal uncertainty that precludes the ḥadd punishment for the victim who reported the rape.85 This, even though the defendant had admitted to zinā during the investigation and the trial stages and only during the appeal claimed that the sexual intercourse happened by force. A second issue at stake in this trial was the question of when exactly a woman should be considered muḥṣana and what effect the discontinuation of a previous marriage has on the status of iḥṣān. The facts of the case unfolded as follows: the accused, Kalthūm Khalīfa ʿAjabnā, had sexual intercourse with another man, allegedly a police officer by the name al-Tāj; he was not indicted, or even arrested. She was not married at the time zinā was committed; when she became pregnant and delivered the baby, she buried the newborn inside her house86 in order to keep the pregnancy secret and avoid a scandal. The defendant, Kalthum Khalīfa ʿAjabnā, however, had been legally married but was divorced after giving birth to a son. During all phases of the investigation and the trial she confessed to zinā and admitted to being divorced from her former husband. Based on her confession and her status as a muḥṣana, the criminal court sentenced her to stoning for zinā. However, during the appeal stage her lawyer claimed that she had not been a muḥṣana when she committed zinā. Likewise, in a first memorandum sent to the Supreme Court, the defendant denied that she had been married before. In a second memorandum, she claimed to have been drugged (with Pepsi Cola containing a soporific) and then raped by the policeman, al-Tāj. In its deliberations on whether the defendant should be considered a muḥṣana, the Supreme Court referred to Article 146 (3) of the Criminal Act of 1991, which unequivocally states that the term iḥṣān means that a legally valid marriage existed (and penetration between the spouses had taken place in the marriage) at the time

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Government of Sudan vs. Kalthūm Khalīfa ʿAjabnā, sljr (1992), no. 48/1992. The precise circumstances of the pregnancy and the birth remain unclear.

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the crime was committed. While the text of this article seems to be clear, the Supreme Court, nevertheless, asked whether a divorced zāniyya or zānī should be considered muḥṣan. For lack of textual evidence in the fiqh, the Supreme Court judges answered in the negative. They thus came to the preliminary conclusion that the crime in question was not zinā between a man and a muḥṣana, punishable by stoning, but rather zinā between a man and a non-muḥṣana, punishable with the ḥadd penalty of 100 lashes. However, the Supreme Court considered her claim of rape to constitute an implicit retraction of her earlier confession and this resulted in the lapsing of the ḥadd punishment. In its final conclusion, the Supreme Court thus overturned the criminal court’s conviction for zinā on the grounds that the defendant had implicitly retracted her confession during the appeal stage by claiming that she had been drugged and raped. As a consequence, the Supreme Court averted the ḥadd punishment and sentenced the defendant to a two-year taʿzīr punishment, which equaled the period of her custody. It is clear that the acceptance of a claim of rape as a legal uncertainty averting the ḥadd contradicts the judgment against Maryam Muḥammad ʿAbdallāh discussed above.87 It is also noteworthy here that the Supreme Court applied the Criminal Act of 1991, even though the offense had been committed in 1990 when the Criminal Act of 1991 had not yet been enacted. It thus applied the Criminal Act of 1991 retroactively. The Supreme Court thus implicitly referred to chapter 2 of the Criminal Act of 1991, which addresses the retroactive effect of the Criminal Act of 1991. Article 4 (1) clearly states that “notwithstanding the provisions of sub-section (2), the law in force at the time of the commission of the offense shall be applied.” However, sub-section (2) of the same article, obviously applied to this case, states that “In case of offenses in which no final judgment has been passed, the provision of this act shall be applied where they are beneficial to the accused.” The same article also would have provided the Supreme Court with a different justification for the remittance of the ḥadd punishment, since “The non-execution of a ḥadd punishment before the coming into force of this act shall be a legal uncertainty (shubha) which remits the ḥadd penalty …” (Article 4(3)). It must also be noted that while the Supreme Court could apply the new Criminal Act of 1991 to the case, the new accompanying Evidence Act was only enacted in 1993, thus after the case in question. It therefore had to refer to the Evidence Act of 1983. On the issue of pregnancy as a means

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This contradiction was stated openly in the verdict itself in the form of a “remark of the editor,” preceding the text of the sentence. Compare Government of the Sudan vs. Kalthūm Khalīfa ʿAjabnā, sljr (1992), no. 48/1992, pp. 129–130.

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for the proof of zinā, the laws do not differ much. The Evidence Act of 1993, unlike its predecessor, explicitly mentions that the pregnancy must happen outside an existing marriage and that the pregnancy must be free of legal uncertainties. When Rape is Considered a Form of zinā The difficulty of proving rape and how this plays into the hands of rapists, at least under the Penal Code of 1983, is illustrated in the following two cases. Both cases also show how the hurried, and in many instances flawed, Islamization of the Penal Code of 1983 caused multiple uncertainties because it did not clearly distinguish between crimes (here between zinā, rape, and mere indecent acts) and the evidence necessary to prove these offenses. Case 1 The following case shows how difficult it is for a woman to prove that she has been a victim of rape and the consequences of this difficulty. In this case, a certain al-Ḥājja al-Ḥusayn Sulaymān, the accused, together with her stepmother, had gone to a garden to collect dates.88 While she was in a different part of the garden, and separated from her stepmother, two men appeared, tied her hands, threw her to the ground, and raped her. She screamed, but no one came to help her. Subsequently, she returned to her family and did not inform them of the rape, for fear of a scandal. When she became pregnant, after four months, she turned herself in to the police in order to find protection from her family. Instead of being secure, as she had hoped, the police turned her over to the criminal court, which indicted her for zinā and sentenced her to stoning, under the assumption that al-Ḥājja al-Ḥusayn Sulaymān, because she was a divorcee, was considered a muḥṣana. The criminal court rejected her claim of rape for lack of evidence and therefore lack of credibility. In its review, the leading opinion of the Supreme Court, however, accepted her claim of rape and considered it a legal uncertainty, thereby averting the ḥadd punishment of stoning. The court, however, reasoned that despite the lapsing of the ḥadd punishment, a taʿzīr punishment was due on the grounds that there are two kinds of legal uncertainties (shubha), strong ones, and weak ones. While the former annuls the essence of the crime the latter only makes the ḥadd punishment lapse, and in the second case, a taʿzīr punishment is still possible. As in most other cases discussed in this chapter, the time the offender had spent in detention—almost three years—was considered a

88

Government of the Sudan vs. al-Ḥajja al-Ḥusayn Sulaymān, sljr (1988), no. 84/1406.

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sufficiently long taʿzīr punishment. The Supreme Court therefore ordered her release. While in this decision the ḥadd punishment lapsed, the accused was nevertheless considered guilty, based on the above reasoning. A minority view of the same court differed with that opinion, and concluded that al-Ḥājja alḤusayn Sulaymān was innocent of zinā altogether and therefore this minority did not support a ḥadd or a taʿzīr punishment. This case shows again that some courts take a pregnancy as strong proof that a woman has committed zinā, even in cases of rape or when rape is a strong possibility. The cases available and discussed in this work show that the lower courts have a strong tendency to reject claims of rape as baseless and not as a reason to avert the ḥadd punishment, if the woman cannot produce strong proof to support her claim. However, we must note that in the majority of these cases the decisions were overturned by the Supreme Court. Although in most cases the worst outcome (either stoning or execution by hanging) was avoided, the accused women were punished in several ways. The fact that they gave birth to children out of wedlock served as strong evidence against them and none of them89 was completely cleared of the charges. On the one hand, Supreme Court judges have a tendency to avoid stoning or execution in cases of zinā; on the other hand, they do support the conviction as such. In most instances, the female defendants saw their rapists released or not even indicted. In addition, they spent several years in prison, and in almost all of these cases the taʿzīr punishment, that is, the prison term the accused must serve, consisted of the same or a similar number of years they had already spent in prison waiting for the judgment of the Supreme Court. Put differently, while the life of a female victim of rape is spared, full rehabilitation and financial compensation for the time spent in prison seems to be unattainable. This is certainly an approach that helps to avoid the worst outcome, that is, stoning. At the same time, it helps the Sudanese judicial system to save face. As for the women concerned, they cannot free themselves of the social stigma attached to rape/zinā and to a pregnancy out of wedlock. Case 2 In the second case90 a certain al-Sirr Muḥammad al-Sanūsī lured a six-year old girl away from her friends by promising to buy her sweets. The girl was found later, covered with scratches and blood stains, that is, in a state that suggested that she had been the victim of sexual assault. A subsequent medical exami-

89 90

Compare other cases discussed in this chapter. Government of Sudan vs. al-Sirr Muḥammad al-Sanūsī, sljr (1989), no. 55/87.

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nation concluded that the girl had been raped. The criminal court sentenced the culprit al-Sanūsī under Articles 307 (kidnapping or abducting a woman to compel her to marriage) and 317 (rape of a minor). The court set aside the punishment under Article 307 because it wanted to impose on the accused the harsher punishment for rape under Article 317 of the Penal Code of 1983.91 Initially, al-Sanūsī was sentenced to a taʿzīr penalty of ten years in prison for committing an offense identical to a ḥadd crime but proven under the ordinary means of evidence and not by meeting the strict standards required to prove ḥadd crimes. This decision was confirmed by the court of appeal, which added 100 lashes, based on “direct and circumstantial evidence” connecting al-Sanūsī to the crime. This circumstantial evidence included the accounts of the victim and other witnesses, in addition to the existence of traces of blood of the same blood group as the victim on the clothing of the defendant. He was also present at the location of the crime at the time it was committed and was identified by the victim and her playmates, who had been playing with her before the crime was committed. In its review, the Supreme Court, however, thought otherwise and came to the conclusion that the crime in question was not rape but rather the crime described as “attempted zinā or rape or indecent acts” in Article 319 of the Penal Code of 1983. This article states that Whoever commits an indecent act on the body of another person or animal, compels a person by force or threatens to join him in committing this act, or attempts to commit zinā or rape or any indecent act on the body of a person or animal, shall be punished by flogging and a fine or imprisonment. The Supreme Court cited, as its main reason for changing the applicable article, the lack of necessary legal evidence proving rape. The accused, who denied the crime, did not make a complete, unequivocal, and unretracted confession, and there were no witnesses to the crime itself. The main reason that led the court to believe that rape, as stipulated under Article 317 of the Penal Code of 1983, had not been proven was the assumption that rape must be proven by the same type of evidence as zinā is proven. In fact, Article 317 reads as follows: “Whoever has sexual intercourse with an underage person in the way stipulated in Article 31692 is considered to have committed the crime of rape and will

91 92

It remains unclear why art. 307 was deemed applicable in the first place. Penal Code of 1983, art. 316, stipulates zinā.

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be punished with the punishment stipulated in Article 318.”93 It is evident that the element of duress is completely missing in the definition of rape. Consensual sexual intercourse between an adult and a minor is automatically considered rape. Second, this definition entirely omits the crime of rape among adults. It thus remains unclear how rape among adults should be punished. And, finally, the definition of rape refers back to zinā for a definition of the crime in question. The Supreme Court, closely following the legislators, thus interpreted rape as zinā with a minor and as a consequence deemed the minimum requirements to prove rape as the same as that needed to prove zinā. These are, we recall, an unequivocal confession, four male witnesses of good reputation, the pregnancy of the unmarried woman or the mulāʿana procedure in the case of a married woman. Since the last two types of evidence were impossible and the first two were not available, the court stated that the minimum requirement for proving a ḥadd crime (that is, rape, or zinā with a minor) had not been provided. However, if a crime is proven with evidence other than that necessary to prove a ḥadd crime (that is, because, for example, the minimum number of witnesses was not reached, or the evidence available is circumstantial), as in the present case, the applicable crime changes to a (related) taʿzīr crime. In this particular case, therefore, the accused was convicted under Article 319 of the Penal Code of 1983, “attempted zinā or rape and indecent acts.” We must acknowledge that the various courts faced a considerable dilemma in this particular case. Whether they were in a position to find an appropriate solution to the dilemma is, however, a different question. The root of the problem lies in the close association between the definition and punishment of rape and that of zinā. In fact, in the Penal Code of 1983 the punishment for these two crimes is identical: execution for the muḥṣan or 100 lashes for the non-muḥṣan Muslim. The definition only differs with regard to the identity of the female offender/victim.94 The conclusion of the Supreme Court, that both crimes necessarily require the same proof (that is, they must reach the minimum requirements for the proof of zinā), follows the inherent logic that there

93 94

Penal Code of 1983, art. 318, stipulates the punishments for zinā. The definition of rape uses the term ghayr bāligh (underage) to describe the victim. The definition of zinā, by contrast, uses the term shakhṣ muṭīq, that is, a woman or girl who is capable of having sexual intercourse. The two terms are not identical. A girl can be considered muṭīq before she has menstruated for the first time. In our case, a six-year old girl is clearly ghayr bāligh (underage, i.e., she has not yet menstruated) and therefore fits the definition of a victim of rape. She would not, however be considered muṭīq at the age of six, and thus does not fit the description of a person committing zinā.

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is a close association between the two crimes. Nevertheless, the outcome of this case is not satisfactory. Since the available circumstantial evidence, such as bloodstains and testimonies, prove the guilt of the accused beyond doubt, the rather light punishments provided under Article 319 seem hardly appropriate. Since rape is normally committed without witnesses, it is unrealistic to demand the testimony of four male witnesses in order to prove it.95 Clearly, such testimony is nearly impossible to obtain and, as a consequence thereof, rape cannot be punished as such. The Penal Code of 1983 thus left judges with a difficult choice: to punish rape with the excessively harsh punishments stipulated for zinā, or with the rather light punishments intended for indecent acts, if as in the case discussed here, the minimum requirements for the proof of zinā are not met. In conclusion, the close association between the definition and punishment of rape and that of zinā led to a situation in which the stipulated (ḥadd) punishment for rape was almost impossible to impose because the requirements for the proof of rape cannot be met. Courts are therefore forced to apply other, inadequate articles of the penal code, thus exacerbating the plight of the victims who see their rapists punished lightly. As in other instances, the Islamization of the penal law in 1983 resulted in important contradictions, here with regard to the possibility of proving the severe crime of rape. The definition of the Penal Code of 1974, which was consistent, was eliminated, as was its corresponding punishment,96 but judges were not provided with a coherent replacement. Disentangling the crime of rape from that of zinā in terms of its definition as well as its punishment would have been an appropriate solution. Unfortunately, the Criminal Act of 1991 did not resolve this dilemma. Taʿzīr Punishment for ḥadd Crimes that Cannot be Proven In 1997, the Supreme Court attempted to establish a procedure for cases concerning possible taʿzīr punishments when ḥadd crimes could not be proven.97 A case of alleged zinā under Article 146 of the Criminal Act of 1991 was dismissed by the criminal court of first instance and initially both defendants were set free for lack of evidence. This decision was then confirmed by the court of appeal. When the case reached the Supreme Court, a confession, which had been registered in the diary during the investigation, by one of the defendants

95 96 97

Compare Sidahmed, “Problems in Contemporary,” 200–201. Penal Code of 1974, art. 316 and art. 317. See Government of the Sudan vs. Ismāʿīl ʿAlī Sulaymān, sljr (1998), no. 326/1997, pp. 37– 39.

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to one of the investigating policemen was invoked by the appellant as sufficient evidence to prove zinā. This argument was rebuffed by the Supreme Court because, in criminal cases, confessions that are not made in front of the judge or his delegates do not constitute unequivocal proof according to Article 21 of the Evidence Act of 1993. By invoking the initial confession, the appeal aimed at a taʿzīr penalty for the defendants on the grounds that the lapsing of a ḥadd punishment does not preclude a taʿzīr penalty. The Supreme Court reasoned, however, that this principle does not mean that a taʿzīr penalty is obligatory after the ḥadd penalty lapses. Whether or not a taʿzīr penalty is due depends on whether the ḥadd crime has been proven in the first place. In other words, not proving zinā in the manner mentioned in Article 62 of the Evidence Act of 199398 does not automatically mean that a taʿzīr punishment can be imposed when the ḥadd offense was not proven originally beyond reasonable doubt. However, the implementation of a taʿzīr punishment occurs when the ḥadd crime is proven beyond reasonable doubt, but the ḥadd punishment is averted by a legal uncertainty, such as the retraction of a confession or the absence of the minimum number (niṣāb) in the case of theft, etc. The Supreme Court has tried to draw a firm line between ḥadd crimes that remain unpunished for lack of evidence and those that entail a taʿzīr punishment because they have been proven beyond a reasonable doubt. It remains doubtful whether this line is as clear as the wording of the judgment suggests. In this judgment, the court did not clearly define what exactly is meant by “proven beyond reasonable doubt.” For example, we could speculate about whether or not the absence of the minimum number of testimonies would lead to a taʿzīr punishment. The judgment does not answer these questions unequivocally. Legal Uncertainties with Regard to zinā As outlined above, traditional fiqh developed a large variety of legal uncertainties in order to foreclose the implementation of ḥadd punishments.99 The possibility of averting a ḥadd punishment was recognized by the Evidence Acts of 1983 and 1993.100 Apart from this, the lapsing of the ḥadd for zinā (from 1983) was governed by a criminal circular that listed a rather extended number of reasons.101 The circular recognized that the ḥadd lapses when the confession of 98 99 100 101

For details, see above. See Peters, Crime and Punishment, 21–23. Evidence Act of 1993, art. 65 (1) reads, “The ḥudūd are averted by legal uncertainties,” literally the same as the Evidence Act of 1983, art. 80 (1). Criminal Circular no. 100/1983. See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, vol. 3, 35– 37.

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the defendant or the testimony of the witness are retracted. Further, the ḥadd lapses if the woman’s virginity is left intact, if the zānī marries the woman he committed zinā with, if it is proven that the sexual intercourse is committed within a defective marriage (zawāj fāsid) and, finally, when the sexual intercourse is committed within a void marriage (zawāj bāṭil). Of this list, only the retraction of the confession of the defendant and the retraction of the testimony of a witness are mentioned explicitly in the Criminal Act of 1991.102 With regard to the first possibility, the Criminal Act of 1991 specifies that the retraction of the confession can take place before the execution of the punishment. By analogy, the withdrawal of the testimony of the witness (up to the time of the execution of the punishment) also leads to the lapsing of the ḥadd, provided the required niṣāb is no longer reached. The Evidence Act of 1993 explicitly mentions four legal uncertainties that cause the ḥadd punishments to lapse: the retraction of the confession, the testimony of a witness, the disagreement of witnesses regarding their testimony, or an oath sworn by the wife as part of the liʿān procedure (Art. 65 (3)). The text of Article 65 of the Evidence Act of 1993 is phrased in a way that suggests that the list of legal uncertainties is not limited, but that other legal uncertainties, not included in the list, can also be invoked. In addition, the fiqh cites legal uncertainties, beyond those recognized by the Criminal Act of 1991. Thus, the Ḥanafīs recognize that shubha fī l-dalīl (uncertainty as to the textual sources of the law) occurs when the defendant thought that sexual intercourse was legal on the strength of a wrong interpretation of the sources of the law.103 Further, under shubha fī l-fīʿl (uncertainty with regard to the act), one presumed that sexual intercourse was legal on the basis of an assumed legal prescription that does not exist.104 A shubha fī l-ʿaqd (legal uncertainty as to the contract) occurs when a contract similar to a valid marriage contract exists but is not legal, for example, when someone marries a fifth wife or one’s own sister. According to Abū Ḥanīfa, such a contract cancels the ḥadd punishment for zinā even if the culprit knew the contract was illegal.105 Article 145 (3) explicitly states that a marriage bond, which by consensus is ruled void, shall not be deemed a lawful bond. Thus, a possible shubha, the shubhat al-ʿaqd, that precludes the ḥadd punishment for zinā is not recognized as a tool to avoid the severe punishment for unlawful sexual intercourse if the

102 103 104 105

Criminal Act of 1991, art. 147. El Baradie, Gottes-Recht und Menschen-Recht, 103. Ibid., 103–104. Ibid., 104. My translation from the German.

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defect of the marriage is based on ijmāʿ.106 There are, however, defects that are not recognized by all the schools. In this case, it is a shubha. An example is a marriage concluded by a legally capable woman (i.e., she is free, sane, of age, etc.), and not by her walī. Such a marriage would be considered defective by all the schools except the Ḥanafīs, who consider it valid. A zinā case from 1984 illustrates how a legal uncertainty (among other arguments) can foreclose the imposition of capital punishment in a case of zinā. This case also aptly illustrates how difficult convictions of zinā can be if a court wishes to exhaust all remedies available in Islamic criminal law to prevent the actual execution of a ḥadd punishment.107 A certain Ādam Mūsā Muḥammad pressed charges against his wife Amīra ʿAbdallāh Aḥmad Ādam, claiming that his wife was pregnant due to fornication with another (unnamed) man. When interrogated, the woman initially confessed to having had sexual intercourse with another man, who, when questioned, denied it and was subsequently released. Since the woman had confessed that the allegations of her husband were true, the necessity of the liʿān procedure lapsed, as did a possible ḥadd punishment for qadhf for the husband. In the first instance the woman was sentenced to death by hanging under Article 430 of the Penal Code of 1983 (zinā by a married woman). When the file reached the Supreme Court, it included a plea for mercy from the husband. He stated that he had lied in his initial accusation against his wife and now claimed that he was responsible for her pregnancy. In its final reasoning, the Supreme Court argued that the ḥadd penalty should be replaced by a taʿzīr punishment. It based its opinion on Abū Ḥanīfa, who held that if a person confesses to zinā and her or his partner in committing zinā denies the charges, the ḥadd penalty must lapse due to legal uncertainty (shubha). Second, it criticized the promulgation of the capital punishment by hanging since, according to the fiqh, the capital punishment for a muḥṣan is stoning. It goes without saying that the Supreme Court criticized, not for the first time, the superficial and imprecise wording of the Islamized parts of the Penal Code of 1983. The Supreme Court thus decided that the ḥadd punishment, “death by hanging,” had to be annulled and therefore it convicted Amīra ʿAbdallāh Aḥmad Ādam to a taʿzīr penalty of 30 lashes, to be implemented after the delivery of the child. Interestingly, the Supreme Court convicted the husband to the same taʿzīr penalty of 30 lashes and not, as one might have expected, to the ḥadd punishment for qadhf. The court’s argument for not doing so was

106 107

This, in fact, invalidates part of Criminal Circular 100/1983, quoted above. Government of the Sudan vs. Amīra ʿAbdallāh Aḥmad Ādam, sljr (1984), no. 108/1984.

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his wife’s initial confession to the charges he had brought against her. It seems that the court took the husband’s plea for mercy, in which he retracted his initial accusations, as a sign of the reconciliation of the spouses. Had the court convicted the husband of qadhf, only the liʿān procedure with a subsequent divorce would have saved him from the 80 lashes prescribed for qadhf. In other words, the taʿzīr punishment of 30 lashes saved the husband not only from a much more severe lashing, it also saved his marriage. Another case brought before the Supreme Court in 1987 also demonstrates how a legal uncertainty can lead to the cancellation of a ḥadd punishment for zinā.108 In this case a certain ʿĀʾisha Ādam Ibrāhīm ran away from her husband and married another man, the second defendant of the case. She told her new husband that she was a divorcée and subsequently had sexual intercourse with him. She was found culpable under Articles 430 (2) (a married Muslim woman having sexual intercourse with another person) in conjunction with Article 318 (punishment of zinā) and condemned to death by hanging for zinā. In its deliberations, the Supreme Court came to another conclusion. It held that according to the fiqh (among other elements) zinā is committed without legal bond (ʿaqd) or the suspicion of a contract (shubhat alʿaqd) and without ownership or the suspicion of ownership (shubhat al-milk). In the case under discussion, however, the defendant claimed that she had relied on her conviction that sexual intercourse was allowed to her. Thus, the marriage contract between her and her second husband, despite being void, created a legal uncertainty as to the permissibility of sexual intercourse. On the grounds of this legal uncertainty the Supreme Court abolished the capital punishment, decided that the more than two years the defendant had spent in prison was the appropriate taʿzīr punishment, and ordered her immediate release. Punishment of zinā Unlike in the fiqh, if the offender is muḥṣan the Penal Code of 1983 punishes zinā with the capital punishment (iʿdām)109 and not with stoning (rajm). Stoning (rajm) is one of the possible punishments listed in Article 64 of the Penal Code of 1983. Since no other ḥadd crime allows for stoning, the question arises why Sudanese legislators did not use it as the standard punishment for muḥṣan offenders of zinā. The term muḥṣan was not defined in 1983, nor was the term

108 109

Government of the Sudan vs. ʿĀʾisha Ādam Ibrāhīm, sljr (1987), no. 80/1405. According to the Criminal Procedure Act of 1983, the execution is by hanging (shanqan ḥattā l-mawt), see Criminal Procedure Act of 1983, art. 229.

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bikr (virgin), which serves as its counterpart.110 The female virgin is to be punished by 100 lashes, the male virgin with prison and banishment of one year, in addition to the 100 lashes. For certain groups of non-Muslims, Article 318 (2) includes a reservation. Whoever belongs to a “heavenly religion”111 that has legislated other punishments for zinā, the offender should be punished with that punishment. If such an alternative punishment does not exist, the nonMuslim offender should be punished with a maximum of 80 lashes and a fine or a prison term of up to one year. The wording “heavenly religion” clearly alludes to Christians and Jews and does not include any of the animist creeds present in the South and in the refugee camps around Khartoum. Thus, believers of such creeds were subject to the same punishments for zinā as Muslims. The majority of schools, as described above, is of the opinion that muḥṣan means that the offender is free, adult, a Muslim, and has enjoyed legitimate sexual relations previously during a valid marriage. However, in a 1985 decision, the Supreme Court established a different definition.112 In the case in question, the father of the defendant denounced his divorced daughter for having become pregnant by fornication (sifāḥan). The daughter was arrested and charges were pressed against her under Article 318 (1) of the Penal Code of 1983 (punishment of zinā). A second defendant, who was accused by the woman of having been her “partner in crime,” was released due to lack of proof against him. A medical exam of the woman showed that she was in her thirtieth week of pregnancy. Subsequently, the woman was sentenced to stoning under Article 318 (1) of the Penal Code of 1983, to be carried out after the delivery and after a two-year period of breastfeeding her infant. In its deliberations, the Supreme Court focused on the question of whether or not the defendant should be considered muḥṣan. First, it briefly discussed the opinions of the four Sunnī schools, which unanimously hold that in the context of zinā the muḥṣan must be free, legally capable, and must have had sexual intercourse in a legally valid marriage. The Ḥanafīs and the Mālikīs further require the muḥṣan to be a Muslim. Surprisingly, the Supreme Court judges concluded that there was no conclusive text in the four Sunnī schools that clearly determines that a divorced person or a widow(er) must be considered muḥṣan(a). Based on this, the court further opined that the status of iḥṣān relates to an existing marriage only. If a marriage ends, either by divorce or by 110 111 112

While the dichotomy normally used is muḥṣan/ghayr muḥṣan, the Penal Code of 1983 uses muḥṣan/bikr (virgin). While no precise definition can be found, the term “heavenly religion” (dīn samawī) most likely only concerns Christians and Jews. See Government of the Sudan vs. Āmina Bābikr Aḥmad, sljr (1985), no. 118/1405.

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death, so does the status of iḥṣān. For lack of textual evidence in the Sunnī schools, the Supreme Court based its reasoning on opinions of Imām al-Ṣādiq of the Twelver Shīʿīs,113 Rashīd Riḍā,114 and Shaykh Abū Zahra.115 Rashīd Riḍā, for example, argued that the muḥṣana by marriage (al-muḥṣana bi-l-zawāj) is called muḥṣana because she has a husband who bestows the status of iḥṣān on her. When the husband divorces her, she can no longer be called a muḥṣana. The Supreme Court further quoted an Egyptian project to codify Islamic criminal law which likewise stipulated that a person was only considered muḥṣan when he/she had had sexual intercourse during a legally valid marriage that still existed when the crime (of zinā) is committed. Therefore, in its final verdict the Supreme Court supported the sentence as such, but abolished the capital punishment by stoning. It further sentenced the defendant to two years in prison, beginning from the day she was arrested. As noted above the dichotomy used in the Penal Code of 1983 was muḥṣan/bikr, not, as we might expect, muḥṣan/ghayr muḥṣan (non-muḥṣan). Following this wording, the Supreme Court argued that—despite the fact that zinā was proven by pregnancy—the punishment of 100 lashes for the virgin (bikr) was not applicable because the defendant was not a virgin due to her previous marriage. Therefore, flogging became possible.

∵ The Penal Code of 1983 introduced a set of—partially overlapping—laws concerning zinā, liwāṭ, and rape; these left a number of questions open to interpretation by the Sudanese courts. The definition of rape, in particular, was rather imprecise, since it did not mention the notion of coercion. It also defined sexual intercourse between a male adult and a consenting underage girl as rape, while at the same time the crime of rape committed by an adult man against an adult woman was entirely omitted in the penal code.

113 114

115

Jaʿfar b. Muḥammad al-Ṣādiq (702–765) was the sixth Imam of the Shīʿa branch of Islam. He was the founder of the Jaʿfariyya, adhered to by Twelver Shīʿīs. Muḥammad Rashīd Riḍā (1865–1935) was a reformist intellectual. He blamed the uncritical imitation of the past, the stagnation of the ʿulamāʾ and Sufism for the failure of Muslim societies to achieve technological and scientific progress. Muḥammad Abū Zahra (1898–1974) was a conservative Egyptian legal scholar and public intellectual. He authored more than forty books on Islamic law and theology. Abū Zahra taught at al-Azhar’s faculty of theology and was a professor of Islamic law at Cairo University.

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The close association between rape and zinā in the Penal Code of 1983 suggested that rape required the same proof as the latter. The difficulties for a victim to prove rape, while pregnancy was admitted as proof for zinā left female victims of rape, especially those who became pregnant as a result, in an unfavorable situation. In an important decision, the Supreme Court clarified that rape can be committed against minors who are not the ward of the rapist. This case was explicitly mentioned in Article 149 (2) of the Criminal Act of 1991, while the rape of minors in a more general sense was not defined in an unequivocal manner. Article 149 (1) spoke of sexual intercourse with a person by way of zinā or liwāṭ, thus leaving doubts as to whether the word person (shakhṣ) was meant in a more general sense or in the sense defined in the respective articles on zinā and liwāṭ, which clearly referred to adults only. In its decision116 the Supreme Court concluded that the more inclusive meaning of the notion of person, as used in Article 149 (rape) had precedence over the more restrictive wording of the articles defining zinā and liwāṭ. This decision thus made it clear that the rape of minors in general must be judged under Article 149. It did not, however, address the problem of the consenting minor. While the consent of the ward is not recognized in Article 149, it remains unclear what happens if minors other than wards consent to sexual intercourse: would the case be treated under zinā or would the case be analogous to Article 149 (2), in which case, such consent would be rejected and the act would be construed as (statutory) rape.117 In 1991, the definition of rape was made more precise with the inclusion of adults and minors alike; this closed an important lacuna in the 1983 codification. Another important element of the definition of rape is the notion that the victim’s consent is lacking (that is, force). This was also absent in the Penal Code of 1983. The ambiguous wording of the respective article, however, in 1991 still used the terms “by way of zinā or by way of liwāṭ” and thus, in terms of proof, connected rape to these crimes. In terms of punishment, there is no difference between offenders who are muḥṣan or non-muḥṣan. Rather, those offenders who admitted to forced vaginal or anal intercourse, “by way of zinā or by way of liwāṭ,” or when the act is proven by the necessary number of witnesses is to be sentenced to capital punishment. While in the case of zinā this number, that is, four men of good reputation, follows Article 62 (b) of the Evidence Act of 1993, it remains unclear whether liwāṭ and consequently anal rape is considered a ḥadd crime, on a par with zinā, or a taʿzīr crime. The number of witnesses nec-

116 117

Trial of Maṣʿab Muṣṭafa Aḥmad, sljr (2000), no. 2000/545. We have not found any cases clarifying this issue.

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essary for the proof of anal rape and therefore the applicability of the death penalty remains unclear. As for rape, in February 2015, longstanding human rights campaigns seem to have contributed to important amendments to Article 149 on rape. The ambiguous formula “by way of zinā or by way of liwāṭ,” that had created so much confusion, was finally replaced by a definition that clearly dissociates rape, vaginal or anal, from zinā and liwāṭ. Rape is now defined as vaginal or anal penetration by a sexual organ or an instrument and by physical or psychological force. Next to abolishing the indiscriminate use of ḥadd punishments for sexual offenses other than zinā, liwāṭ, and rape, the Criminal Act of 1991 also puts Muslims and non-Muslims on a par with regard to incest. While in 1983 nonMuslims faced only a taʿzīr punishment for incest, in 1991 they became liable to the respective punishments for zinā, liwāṭ, and rape, when these crimes are committed with relatives and can be proven. The Penal Code of 1983 did not dedicate a separate article to liwāṭ, rather it was subsumed under the definition of zinā in Article 316, which talks of a “person” as the passive partner. However, since the same article also speaks of the absence of a legal bond, the Supreme Court, in a landmark decision, concluded that despite obvious ambiguities, Article 316 does not cover liwāṭ. Rather, before 1991 liwāṭ was treated under Article 319—indecent acts. As a consequence, those accused of liwāṭ did not face a possible ḥadd punishment, nor did the strict rules for the proof of zinā apply.118 The Criminal Act of 1991 introduced reforms with respect to its predecessor and provided a definition and punishment for liwāṭ. Liwāṭ is considered independent of zinā, it cannot be punished by stoning, and the notion of iḥṣān is irrelevant. As to the necessary proof, the criminal act leaves open the question of whether the strict procedures for the proof of zinā still apply or whether the lighter requirements of a taʿzīr crime might apply. In 1991, liwāṭ within a legally valid marriage became (at least theoretically) punishable, though according to the 1983 code it was not. With regard to pregnancy as proof of zinā, the published Supreme Court decisions discussed above argue about several key concepts such as the definition of iḥṣan, the legal effect of (alleged) rape, the consequences for the “partner in crime” (that is, men), the role of circumstantial evidence and, finally, the applicability of a taʿzīr penalty in cases in which the ḥadd penalty is remitted.

118

See Government of the Sudan vs. al-Ṣādiq Aḥmad ʿAbdallāh, sljr (1989), no. 149/1989, discussed above.

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The concept of iḥṣān plays a central role with a view to the applicable punishment. Therefore, the definition of iḥṣān adopted by the legislators and the courts is of the utmost importance and consequence, especially for female defendants. In the first case the situation was unequivocal—the woman was married when zinā was committed—and thus the punishment of stoning was due. In the second case, the Supreme Court was able to treat the defendant as a non-muḥṣana because she had retracted a confession to a previous marriage and the factual existence of such marriage could not be established by any other means. In the third case, however, the Supreme Court (relying on Article 146 (3)) defined the concept of iḥṣān in a restrictive way. After consulting the fiqh it concluded that no conclusive texts on the matter could be found and therefore a divorcée (and by analogy a widow) must be considered non-muḥṣan. Interestingly the court did not confine itself to resorting to the unequivocal definition given in Article 146 (3) of the Criminal Act of 1991, but rather consulted the fiqh before taking its decision. As to the legal effects of rape or alleged rape, we also notice important changes. In the case of Maryam Muḥammad ʿAbdallāh the Supreme Court insisted that (alleged) rape could not be construed as a legal uncertainty remitting the ḥadd punishment, unless the defendant provided proof of rape. While thus misconceiving the very nature of the concept of shubha, it corrected this decision in later cases.119 In two consecutive instances it subsequently recognized that a mere claim of rape—and even without any conclusive proof— constitutes a legal uncertainty averting the ḥadd punishment. However, once rape is unequivocally proven against a man by evidence that does not meet the minimum proof necessary to convict for zinā, judges between 1983 and 1991 were hard pressed to find an applicable article. In the case of al-Sirr Muḥammad al-Sanūsī, the guilt of the accused was proven beyond doubt. However, the court held that Article 317 (rape) was not applicable since that article makes explicit reference to zinā and, implicitly, to the pertinent proof for it. Since rape was proven, but the only article defining rape was unavailable, the court applied Article 319—indecent acts and attempted zinā and rape—in order to reach a conviction for this especially reprehensible crime (the rape of a minor). The 1991 legislators took this lacuna into account and explicitly provided for cases of rape that do not constitute zinā or liwāṭ.120

119 120

See, for example, cases al-Ḥajja al-Ḥusayn Sulaymān, Maryam Muḥammad ʿAbdallāh and Kalthūm Khalīfa ʿAjabnā, discussed above. Compare Criminal Act of 1991, art. 149 (3).

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Concerning pregnancy as a proof for zinā, in the case Maryam Muḥammad ʿAbdallāh the Supreme Court also stated that pregnancy could be proof of zinā even within a marriage, if the husband had been absent for a long period while zinā was committed. It must be noted here that this decision directly contradicts the Evidence Act of 1983, Article 77 (3), which restricts pregnancy as proof for zinā to unmarried women. While the Evidence Acts of 1983 and 1993 leave relatively little room to maneuver, the Supreme Court made it clear in 1989 (in the case of Maryam Muḥammad Sulaymān) and in 1992 (in the case of Kalthūm Khalīfa ʿAjabnā) that pregnancy cannot be considered unequivocal proof for zinā, but rather there is room for the (proven or unproven) claim that the pregnancy was the result of rape. While it could not reinterpret the fixed status of the law of evidence, it thus opened a way for women who would otherwise face a conviction for zinā based on pregnancy. With regard to the “partners in crime,” that is, the male partners of the alleged illegitimate sexual intercourse, in the cases available121 none of them were punished. In three cases the partners of the defendant were released at an early stage of the investigation, ostensibly for lack of evidence.122 In the case of Kalthūm ʿAjabnā, her partner, a police officer, was not even summoned, let alone indicted or convicted. In the absence of four male witnesses of good reputation, the confession of the male partner is the only possible means of proving zinā left to the courts. Since none of the men confessed, none were convicted. It goes without saying that the Penal Code of 1983 and the Criminal Act of 1991 disfavor women with regard to the proof of zinā by admitting pregnancy as a means of proof, while at the same time proving zinā against men is virtually impossible, short of a voluntary confession.123 The question of whether naming her male partner would have led to a conviction for qadhf seems to have puzzled courts, at least in the case Maryam Muḥammad ʿAbdallāh (1985). While the criminal court convicted her for qadhf—zinā of the man could not be proven—the Supreme Court annulled the conviction on the grounds that the aggrieved party, that is, the victim of qadhf, did not bring charges. Probably based on the case Maryam Muḥammad ʿAbdallāh, neither the criminal court nor the Supreme Court considered a conviction of the defendants for qadhf in the other cases discussed above.

121 122 123

I refer to the published cases available in the Sudan Law Journal and Reports. See the cases of Maryam Muḥammad ʿAbdallāh, Amīna Bābikr Aḥmad, and Maryam Muḥammad Sulaymān discussed above. Compare Sidahmed, “Problems in Contemporary,” 203–204.

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In contrast, we must note that in all the Supreme Court cases studied in which pregnancy was a decisive or at least an important element in proving zinā, the indicted women were convicted. Maryam Muḥammad ʿAbdallāh was convicted of zinā and was to be executed by stoning while in the remaining cases the women were sentenced to taʿzīr penalties, that is, prison terms.124 In other words, even if the ḥadd punishment for zinā lapses, convicted women face a stiff taʿzīr punishment and possibly years fearing execution. Needless to say, it does not seem logical that, on the one hand, the ḥadd punishment lapses because the defendants were raped or claim to have been raped, and on the other hand, despite this inherent recognition of rape or the possibility of rape, a taʿzīr punishment is still imposed. It remains unclear what the lapsing of the ḥadd really means. It does not seem to mean that the court prefers to assume innocence in order to avoid convicting a woman who might have been raped. Since the women are punished anyway—despite a probability that they were forced into illegitimate sexual intercourse—the message rather reads differently. If a woman becomes pregnant, either outside a legally valid marriage or with a partner other than her husband, she does not get away lightly. While her male partner remains free and cannot be punished unless he confesses, a woman can seldom completely clear herself of the charges of zinā. While the two more recent decisions establish rape as a legal uncertainty averting the ḥadd, it does not save women who have become pregnant outside marriage from the ordeal of years in prison and the possibility of execution.125 In 1997, the Supreme Court tried to address the question, under what circumstances a taʿzīr penalty was to be imposed after a ḥadd punishment had been averted. The Supreme Court concluded that a taʿzīr penalty is not obligatory when a ḥadd penalty lapses. Rather, a taʿzīr punishment depends on whether or not the ḥadd crime was proven beyond doubt. If the ḥadd crime was proven (beyond doubt), but averted due to legal uncertainties (shubuhāt), a taʿzīr penalty must be imposed. This decision is unsatisfactory. While the principle established by the Supreme Court was used to punish a rapist with a taʿzīr penalty, applying the same principle in cases of zinā or in cases of zinā in conjunction with (proven or unproven) rape clearly discriminates against women. When their ḥadd penalty lapses, pregnancy or retracted confessions can still be

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Note that the Supreme Court decided that the stoning was to be executed two years after the birth of the child, provided the child was born alive. By that time, the political situation in the Sudan had changed drastically. No stoning was ever reported. Compare also Sidahmed, “Problems in Contemporary,” 194–197.

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construed as “proof beyond doubt,” and justify long prison terms. In the published cases discussed here, these prison terms were indeed the norm and none of the women were rehabilitated or compensated for the time they spent in prison.

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Unfounded Accusation of Unlawful Sexual Intercourse (qadhf ) Qadhf in Islamic Jurisprudence ( fiqh) The ḥadd offense of qadhf discussed in the fiqh is based on the Qurʾān (24:4– 5): And those who accuse honorable women but bring not four witnesses, beat them (with) eighty strokes and never (afterwards) accept their testimony—they indeed are evildoers. Except those who afterwards repent and make amends. (For such) Allah is Forgiving, Merciful. As for those who accuse their wives but have not witnesses except themselves; let the testimony of one of them be four testimonies, (swearing) by Allah that he is of those who speak the truth … And it shall avert the punishment from her if she bears witness before Allah four times that the thing he says is indeed false …. In order to qualify as qadhf, the defamer (qādhif ) must use certain expressions or accusations, such as the unfounded accusation of unlawful sexual intercourse, that is, zinā, or the negation of a person’s legitimate descent (nafy al-nasab). This must happen in a clear and unequivocal wording, such as: “you have committed zinā,” or “I have seen you committing zinā.”1 It is not enough for the accusation to refer to forbidden intercourse (waṭʾ ḥarām), since this kind of intercourse might not amount to zinā, for example, because of legal uncertainties. The insinuation of an accusation of zinā without words or only with gestures (ishāra) does not qualify as qadhf. Such an accusation in writing only is also not qadhf, since the accusation must be made within earshot of a listening public.2 This is the majority position of the Ḥanafīs, Ḥanbalīs, and Shāfiʿīs; in Mālikī jurisprudence the use of indirect or metaphorical expressions is sufficient for the imposition of the ḥadd for qadhf.3

1 Bahnasī, al-Jarāʾim, 150. 2 Ibid., 152. 3 Peters, Crime and Punishment, 63.

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The fiqh devises some important qualifications as to the offender (qādhif ) and the victim of qadhf (maqdhūf ). The offender must be sane (ʿāqil) and of age (bāligh). The Mālikīs, however, hold that a woman does not need to be an adult, but just capable of sexual intercourse.4 The status of the offender (being Muslim and free), however, is not a necessary precondition. A slave,5 a dhimmī, and a mustaʾmin who are guilty of qadhf are also punished by the ḥadd. Originally, Abū Ḥanīfa taught that a mustaʾmin could not be punished with a ḥadd, but he later held that a mustaʾmin is subject to the same punishment with regard to qadhf as the Muslim.6 Opinions differ on the penalty for a father or a grandfather who commits qadhf against a direct descendant. According to the Ḥanafīs, the Ḥanbalīs, and Shāfiʿīs, the ḥadd does not apply in such a case. By contrast, Mālik proposes to punish them, based on the general meaning of the underlying Qurʾānic verse. Other regulations apply to the victim of qadhf (al-maqdhūf ). The ḥadd for qadhf is only applicable if the victim is muḥṣan. In contrast to the meaning of muḥṣan in relation to zinā, the state of iḥṣān is defined here as a free, adult, sane, chaste Muslim,7 that is, according to the majority opinion (with the exception of Abū Ḥanīfa), he or she has never been convicted of zinā.8 The victim also must not have been the subject of a liʿān procedure.9 Further, the victim of qadhf must be known and identified. Thus, if the qādhif addresses a group of people and says: “only one of you committed zinā,” this would not lead to the ḥadd for qadhf. On the other hand, it is not necessary that the maqdhūf be alive. The applicability of the ḥadd penalty must be considered with regard to the state of iḥṣān of the victim during his lifetime; the iḥṣān is not changed by death.10 The burden of proof as to the lack of chastity lies upon the qādhif and not the defendant, because the plaintiff must prove his case. If the victim of qadhf commits unlawful sexual intercourse (zinā) or an otherwise forbidden sexual intercourse (waṭʾ ḥarām) before the punishment has been imposed on the offender of qadhf, the ḥadd punishment on the qādhif lapses.

4 5 6 7 8 9 10

Ibid. The punishment of the slave is only half of that of the free person, that is, 40 lashes. Krcsmárik, “Beiträge zur Beleuchtung,” 320. A few authors are of the opinion that the victim of qadhf can be a dhimmiyya, provided she has given birth to a Muslim child. See Bahnasī, al-Jarāʾim, 160. The victim of qadhf must also not be mute, or a hermaphrodite. See ibid., 162. Peters, Crime and Punishment, 63. Bahnasī, al-Jarāʾim, 163–164.

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Two additional conditions are necessary to make the ḥadd punishment for qadhf applicable. First, the victim of qadhf must request its application and, second, the accusation must not be proven by the confession of the victim of qadhf (who would then be guilty of zinā), or based on the testimony of four witnesses. Further, the person culpable of qādhf shall not be punished if the accusation of unlawful sexual intercourse (zinā) is made by way of liʿān (see above). As usual in ḥadd offenses, qadhf is proven by testimony or confession. According to the majority opinion, a valid testimony requires two men. The Mālikīs debate whether or not an oath, or the testimony of a woman, is valid proof in qadhf cases.11 As to the validity of the testimony of a person who has previously been convicted for qadhf and then repented, the opinions of the fuqahāʾ differ. Abū Ḥanīfa and Abū Yūsuf hold that the testimony of the convicted qādhif is only acceptable in cases other than qadhf. The testimony of the person previously convicted of a ḥadd offense is not to be accepted even if he has repented. Mālik and al-Shāfiʿī, in contrast, accept the testimony of the person convicted for qadhf—if he repented.12 The person who confesses can be a non-Muslim, a woman, or a slave; it does not have to be made at a certain point in time, even confessions made long after the fact are valid. By contrast, the withdrawal of the confession, which must only be made once, is not accepted, because the ḥadd punishment of the offender is the right of the victim. In other words, it is not a right of God, but a claim of men (ḥaqq adamī). If two men, or one man and two women, testify that the victim of qadhf confessed to unlawful sexual intercourse, then the ḥadd punishment on the qadhf offender will be averted. There are three legal consequences if qadhf is proven: a ḥadd punishment of 80 lashes, the invalidity of his testimony, and the declaration that he is a sinner (until he repents). There is no limitation for qadhf, because, according to the interpretation of the fuqahāʾ, the delay in giving testimony does not indicate malevolence. The victim of qadhf does not have a real choice, rather he is compelled to file charges for qadhf, in order to avoid shame. If he did not take action, even belatedly, the accusation directed against him would gain credibility.13

11 12 13

Compare ibid., 173. Ibid., 176. For unfounded accusations of unlawful sexual intercourse in the fiqh, see ibid., 147–180.

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Qadhf in the Sudanese Penal Codes of 1983 and 1991 According to Article 433 of the Penal Code of 1983, qadhf is defined as accusing a person of zinā, either by stating it publicly, or by making a pronouncement in another way, also in writing or by publication, by gestures or visible expression. An explanation to this article explains that the accusations of zinā as defined above are deemed qadhf even if the maqdhūf is absent or dead. This is based on the condition that such accusations of zinā would amount to qadhf if the absent or dead person were present or alive and the intention of the qādhif is to hurt the feelings of the family of the maqdhūf. In a second explanation, the legislators state that the conditions of qadhf are also fulfilled by an unambiguous, deceitful picture or an explicit mockery.14 A survey of qadhf in the fiqh shows that accusations made in writing, or, by analogy, in a publication, do not qualify as qadhf. The same is true for accusations made by way of deceitful pictures, gestures or visible expressions. In other words, the Penal Code of 1983 substantially widens the definition of qadhf, such that it now covers related offenses that would fall under taʿzīr punishments according to the fuqahāʾ. Further, the definition of Article 433 omits the clarification that in order to qualify as qadhf, the accusation of zinā must be, necessarily, unfounded. The wording does not leave room to prove that the accusation is justified, as whoever accuses a person of zinā in the manner described is punishable by qadhf—if one follows the text—even if he could produce the four witnesses necessary to prove zinā. If the qādhif had already been convicted for qadhf previously or the maqdhūf had been convicted of zinā, another conviction for qadhf is possible, or at least the relevant sections of the Penal Code of 1983 do not indicate the contrary.15 With regard to the stipulation that the maqdhūf can also be dead, Article 433 follows the fiqh.16 The wording of the explanation, however, is directly inspired by Article 433 (defining defamation) of the the Penal Code of 1974. Apart from now referring to qadhf, instead of “defamation,” as in 1974, the only difference is that an absent person can be the object of qadhf as well. Qadhf, as defined by the Criminal Bill of 198817 and the Criminal Act of 1991, is falsely accusing a person, expressly or by implication, of unlawful sexual

14 15 16 17

Penal Code of 1983, art. 433 and explanations 1 and 2. For further qadhf-related articles see below, section entitled “Punishment of qadhf.” Compare Bahnasī, al-Jarāʾim, 163–164. There are a few minor differences between the 1988 draft code and the 1991 legislation. In order to qualify as maqdhūf, the 1988 draft code stipulated that “a person is deemed to

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intercourse or liwāṭ,18 or of negating the lineage of a chaste person, even if this person is dead.19 A chaste person is someone who has not been convicted of unlawful sexual intercourse (zinā), penetratio per penem in ano (liwāṭ), rape, incest, or prostitution.20 The provision for qadhf in the Criminal Act of 1991 follows Article 433 of the Penal Code of 1983 with a few important differences. The rather wide definition of Numayrī’s code was not changed. Qadhf by gestures, signs or in writing is still part of the definition. The absent person was eliminated from the definition of the maqdhūf, while the dead person is still part of it. Most importantly, the Criminal Act of 1991 widens the definition of qadhf even further by adding an unfounded21 accusation of liwāṭ and a negation of lineage. While the latter is covered by the classical definition of the fuqahāʾ, the first is more problematic. Whereas, in fiqh, the issue of whether liwāṭ falls under the definition and punishment of zinā is controversial, the Criminal Act of 1991 makes a clear distinction. While the first-time offender in a zinā case will be stoned if he or she is muḥṣan, the iḥṣān principle does not enter into the definition of liwāṭ,22 nor is stoning a possible punishment. In other words, based on the pertinent opinions of the fuqahāʾ, if liwāṭ is subsumed under zinā then logically a false accusation of liwāṭ would follow the rules for the punishment of qadhf. However, if legislators distinguish between the two offenses, as the Criminal Act of 1991 does, then unfounded accusations of liwāṭ should not be punished by the ḥadd punishment for qadhf, since according to the fiqh, the false accusation only consists of zinā and no other offense. We can observe other important changes in comparison to the 1983 code. While in 1983 the victim of qadhf was only defined with regard to religious affiliation, the Criminal Act of 1991 omits this important notion. The religion of the maqdhūf (Muslim or not) has become irrelevant. While in the case of the qādhif the fiqh supports this approach, the victim of qadhf cannot, by definition, be non-Muslim. Non-Muslims are thus, as we observe in other instances, incorporated into the realm of Islamic law, in contradiction to its own rules. Since the unfounded accusation of liwāṭ is punishable with the

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be chaste when he has not been convicted of adultery, homosexuality or any of the other sexual offences.” This wording was formulated more precisely in 1991 (see below). Liwāṭ is not translated here as homosexuality. As Schmitt shows, the notion of liwāṭ is limited to anal intercourse. By contrast, in western culture the notion of homosexuality encompasses far more. See Schmitt, “Liwāṭ im Fiqh.” Criminal Act of 1991, art. 157 (1). Criminal Act of 1991, art. 157 (2). The word ‘unfounded’ was also added. In the original Arabic, kidhban. Compare Criminal Act of 1991, art. 148.

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punishment for qadhf, liwāṭ now also enters into the definition of chastity. Only a chaste person can be the object of qadhf, therefore a chaste person is someone who has not been convicted of zinā, liwāṭ, rape, incest, or prostitution.23 What are the opinions of the fuqahāʾ concerning the meaning of chastity and which crimes make one unchaste in the sense relevant to qadhf ? According to Abū Ḥanīfa, the maqdhūf, in order to qualify as a possible victim of qadhf, must not have had forbidden sexual intercourse (that is, sex outside lawful marriage or concubinage with a slave or in a legally invalid marriage when the reason of the invalidity is agreed upon, or without property rights ( fī ghayr milk)) at any point in his lifetime.24 Thus it does not matter to Abū Ḥanīfa whether the sexual intercourse amounts to zinā or not. If the victim of qadhf has had forbidden intercourse as described, then the chastity of the maqdhūf is no longer assumed and, therefore, the qādhif will not be punished with the ḥadd penalty for qadhf. Mālik also holds that the maqdhūf must not have been convicted of zinā either before he was accused of qadhf or afterward. In contrast to Abū Ḥanīfa, Mālik does not consider forbidden sexual intercourse that does not amount to zinā as something that removes the status of chastity. Al-Shāfiʿī agrees with Mālik that the ḥadd punishment for zinā means the maqdhūf is not chaste. As to other forms of forbidden sexual intercourse that do not amount to zinā, he distinguishes two kinds. In the first kind, the man does not have legal rights to the woman he has sexual intercourse with. Therefore, the status of chastity and iḥṣān are eliminated, similar to one who commits zinā. In the second kind, the sexual intercourse does not require the ḥadd punishment, for example, when a man has intercourse with his menstruating wife. In this case, his chaste status is not changed. Ibn Ḥanbal, however, differs with Abū Ḥanīfa, inasmuch as he does not call for absolute chastity (al-ʿiffa al-muṭlaqa), nor for chastity with regard to zinā as envisaged by Mālik and al-Shāfiʿī. According to Ibn Ḥanbal, it is sufficient to be chaste with regard to zinā in a strictly legal meaning (al-ʿiffa al-ẓāhira ʿan al-zinā). In other words, if zinā has not been proven to the maqdhūf by a confession or testimony and the ḥadd penalty has not been imposed on him, then he must be presumed chaste. If the maqdhūf has committed zinā and repents before the crime is brought to court, it does not affect his status of chastity. Returning to our discussion of Article 157 of the Criminal Act of 1991 and its definition of chastity, we observe that Sudanese legislators stipulated a rather wide range of offenses that might eliminate the status of the chastity

23 24

Criminal Act of 1991, art. 157 (2). For a detailed discussion of the concept of chastity (ʿiffa) see ʿAwda, al-Tashrīʿ, 2:475–477.

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of the maqdhūf. By stipulating a larger group of crimes that cause the loss of one’s chastity, the approach of the Sudanese legislators is closer to that of Abū Ḥanīfa, and to some degree al-Shāfiʿī, who are of the opinion that a maqdhūf who is guilty of forbidden sexual intercourse that does not amount to zinā cannot be considered chaste. However, Article 157 (2) clearly stipulates that only a conviction for the mentioned sexual crimes removes the status of chastity (and not hearsay, rumors, accusations etc.). In other words, the pool of possible victims of qadhf is somewhat diminished. This decrease, however, is far outweighed by the fact that non-Muslims can now also sue for unfounded accusations of unlawful sexual intercourse, or liwāṭ, or negation of lineage. Ultimately, by adding liwāṭ and negation of lineage to the sex crimes that make up qadhf (if the accusation cannot be proven), and by adding non-Muslims to the pool of possible victims, the overall applicability of qadhf has been substantially widened in comparison to its stricter rules in the fiqh.

Punishment of qadhf The ḥadd offense of qadhf was not mentioned in the Penal Code of 1974, which only recognized the offenses of defamation, injurious falsehood, and the printing of defamatory matter, all of which were punishable by a prison term of up to two years or fine or both.25 The following Penal Code of 1983 kept the offenses as such, but replaced this punishment with the less precise formula “to be punished by flogging and fine or prison.” Here we must note that this lack of precision gave enormous latitude to the judge. “Prison” meant any prison term the judge saw fit without a maximum number of years.26 “Flogging” meant any number of lashes ranging from 25 to 100.27 The precise range of “fine” also remained essentially unspecified.28 Next to these defamation-related offenses, the Penal Code of 1983 introduced qadhf and—following the fiqh— punished it with 80 lashes. The Criminal Bill of 1988 and the Criminal Act of 1991 preserved this punishment. Concerning the Penal Code of 1983, we see a disproportionality between crime and punishment caused by the introduction of the ḥadd offense of qadhf. Thus, while the punishment mentioned in the Qurʾān was limited to 80 lashes, other non-Qurʾānic variations of defamation 25 26 27 28

See the Penal Code of 1974, art. 434, 435, 436. Article 437 stipulates the same punishments for the sale of printed or engraved substances containing defamatory matter. Penal Code of 1983, art. 64 (3). Penal Code of 1983, art. 64 (8). Penal Code of 1983, art. 64 (5).

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could be punished with up to 100 lashes and possibly with a fine. As mentioned, judges also had the option of sentencing the convicted to an unspecified, possibly long, prison term. In other words, the taʿzīr penalty for related offenses could be more severe than the ḥadd penalty for the ḥadd crime. Further, the religion of the offender is an important difference. The Penal Code of 1983 stipulates 80 lashes only if the victim of qadhf is a Muslim. If the maqdhūf was a non-Muslim, the punishment stipulated was the ubiquitous formula “flogging and fine or prison.” As our overview of the pertinent fiqh rules show, there is indeed a difference between the qādhif and the maqdhūf with regard to religion. A non-Muslim can be punished for qadhf just like a Muslim. He cannot, however, be the object of qadhf, because he is not muḥṣan as required in cases of qadhf. Even though the legislators stipulate a taʿzīr penalty—which can be even more severe than the ḥadd, as we have shown—it would have been more appropriate to subsume the defamation of a non-Muslim for unlawful sexual intercourse under a different header, and to avoid the term qadhf. In other instances, the Sudanese legislators combined stipulations on defamation, that is, taʿzīr crimes, with ḥadd punishments. Thus, we find two more offenses, basically taken from the Penal Code of 1974, that were transformed into ḥadd offenses related to qadhf. The first is “printing or engraving matter known to be defamatory”29 and second, the “sale of printed or engraved substance containing defamatory matter”;30 both are punishable with 80 lashes for Muslims, and flogging and fine or prison for non-Muslims. For punishment, the Penal Code of 1983 thus follows the logic set in the article for the punishment of qadhf proper. Again, compared to the reasoning of the fuqahāʾ, we find that printing material known to be defamatory does not fall under the definition of qadhf, since the unfounded accusations must be made within earshot of a listening public and not in writing. The sale of printed defamatory matter is equally far from the definition of qadhf and therefore, according to the fiqh, is not punishable by a ḥadd penalty. Again, in both cases non-Muslims may face a more severe punishment than Muslims. Most of these incongruities, flaws, and superficialities were rectified in the draft of the Criminal Bill of 1988 and the Criminal Act of 1991. Thus, most importantly, the ḥadd punishment for qadhf is limited to qadhf proper and qadhf-related and similar offenses are not punished with 80 lashes because their definitions are clearly different from what the fiqh defines as qadhf. Furthermore, the prison terms for these offenses were lowered substantially,

29 30

Penal Code of 1983, art. 436. Penal Code of 1983, art. 437.

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to a level that is even lighter than the punishments of the Penal Code of 1974. Defamation proper is punished with a maximum prison term of six months or a fine or both.31 Those guilty of insult and abuse face a maximum prison term of one month or up to 25 lashes or a fine. Remarkably, the differentiation between Muslims and non-Muslims with regard to the victim was completely abolished. In other words, even if the victim is a non-Muslim, the ḥadd punishment applies. While this means, in practice, that a non-Muslim’s reputation with regard to unfounded accusations of unlawful sexual intercourse is protected in the same way as that of the Muslim, it also means that non-Muslims are incorporated into Islamic criminal law in a way not envisaged by the fiqh.

Lapsing of qadhf The lapsing of the ḥadd penalty for qadhf were first regulated through Criminal Circular 99/1983;32 the reasons are listed as follows: (1) Withdrawal of the testimony by the witnesses. (2) Confirmation of the statement of the slanderer by the slandered. (3) Denial of the statement of the (testimony of the) witnesses by the aggrieved party, based on the opinion of the Ḥanafīs. As in other instances, a taʿzīr punishment is possible after the ḥadd lapses, even if such a punishment was not stipulated explicitly in the law.33 In contrast, in the Criminal Act of 1991, the reasons for the lapsing of the ḥadd in cases of unfounded accusations of unlawful sexual intercourse changed almost completely.34 In the Criminal Act of 1991, the ḥadd lapses for the following reasons: (a) By a mutual unfounded accusation of unlawful sexual intercourse (taqādhuf ), when the slandered person or the plaintiff answers the slanderer with the same words. (b) With the pardon of the victim or the complainant before the execution of the penalty for defamation. (c) By liʿān between the two spouses. (d) When the defamed person is a descendant of the defamer. While in 1983 an unspecified taʿzīr penalty was made possible by Article 458 (3),35 in cases in which the ḥadd penalty was remitted, in 1991 it is stipulated that a remittance of the ḥadd for qadhf according to the reasons given in Article 158(1) (automatically) leads to a penalty for the offense of defamation. Defamation is punishable by a prison 31 32 33 34 35

Criminal Act of 1991, art. 159. For the following see Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:33–34. Compare Penal Code of 1983, art. 458 (3). Criminal Act of 1991, art. 158. This article also allowed for ḥadd punishments despite the non-existence of a text in the Penal Code of 1983 prescribing such a punishment.

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term not exceeding six months or with a fine or both.36 The punishment for defamation, despite the lapsing of the ḥadd, affects the cases quoted above in a variety of ways. In the case of mutual defamation, both parties have used the same defamatory statements against each other. However, their statements do not neutralize each other, rather both are considered guilty and are punished for defamation. In the second case, we would expect a pardon to mean that the punishment is dropped; however, the taʿzīr punishment may still be imposed, even though the aggrieved party gave up his/her right to implement the ḥadd. In the third case, liʿān, the marriage must be dissolved.37 Finally, in the fourth case, the defamer is the one who accuses his own offspring of zinā or doubts his or her pedigree (and ironically, in the latter case, the defamer also brings his own paternity into question).

∵ The Penal Code of 1983 substantially widened the definition of qadhf, in comparison to the way it is defined in the fiqh. The definition came to cover related offenses such as unfounded accusations in writing or in publications. Next to a rather deficient wording, which omitted that the accusation of unlawful sexual intercourse had to be unfounded, prior convictions of the qādhif for qadhf or for zinā of the maqdhūf did not affect the applicability of the provisions for qadhf in the Penal Code of 1983. The Criminal Act of 1991 maintains some of the incompatibilities between the Penal Code of 1983 and the fiqh, but also tries to develop the definition of qadhf further. It thus confirms the inclusion of gestures and written accusations into the definition of qadhf, but also introduces the notion of chastity. By including convictions for liwāṭ, rape, incest, and the practicing of prostitution as reasons that render the maqdhūf unchaste, Sudanese legislators limited, to some degree, the pool of those who can be considered chaste. Since liwāṭ is subsumed under the definition of zinā by the majority of fuqahāʾ, its inclusion in the definition of chastity seems to be justifiable. However, this inclusion contradicts the distinction between zinā and liwāṭ in the Criminal Act of 1991 itself. Further, by adding a false accusation of liwāṭ to the definition of qadhf, Sudanese legislators provided a stricter protection against slander, but substantially widened the applicability of qadhf, as compared to the rules supported by the majority of the fuqahāʾ.

36 37

Criminal Act of 1991, art. 159(3). See Schacht, An Introduction, 165.

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The Criminal Act of 1991 also introduces an important change concerning the religion of the victim of qadhf. Whereas in 1983, in accordance with the fiqh, the ḥadd punishment for qadhf was only applicable if the victim of qadhf was a Muslim, the Criminal Act of 1991 abolishes this distinction. This change could be construed as an effort to give non-Muslims the same status as Muslims, which in this particular case is meant to be an efficient protection of their rights. However, it once more draws non-Muslims into the realm of Islamic criminal law, and this against its own prescriptions. In relation to the qualities of the witness of qadhf, the codes of 1983 and 1991 do not state, explicitly, that the witness must be of good reputation. Good reputation is assumed unless the opposite is proven. Whether or not someone who has previously been convicted for qadhf can testify remains unclear; the texts are silent concerning this problem. The Penal Code of 1983 also introduced a grave imbalance concerning offenses that relate to slander but do not fall under the definition of qadhf. These crimes could be punished even more harshly than ḥadd offenses. Two of these offenses were punishable with 80 lashes for Muslims, and thus, de facto, subsumed under qadhf. Again, non-Muslims could, theoretically, be punished even more severely with up to 100 lashes. In 1991, with these incongruities abolished, the ḥadd punishment was restricted to qadhf proper. All other related offenses are now unequivocally punished by taʿzīr penalties and the balanced relation between crime and punishment of the Penal Code of 1974 has been restored in most cases. In 1991, the reasons for the lapsing of the ḥadd penalty for qadhf changed almost completely from those of 1983. The relation between the two sets of reasons for the lapsing of the ḥadd, however, remains unclear.38 While Criminal Circular 99/1983 states that the reasons given in 1991 conflict with those given in the Penal Code of 1983, the latter can hardly be considered abrogated by the promulgation of the former. At least the withdrawal of the testimony or the confirmation of zinā, committed by the maqdhūf remained valid reasons for the lapsing of the ḥadd. It is thus more probable that the reasons given in the two codes must be understood as complementary. 38

Ḥāmid comments on Criminal Circular 99/1983, stating that the reasons for the lapsing of qadhf as stipulated in the Criminal Act of 1991, art. 158, contradict those given in the circular. There seems to be no clear directive on the use of these reasons, which could be seen as complementing each other. Ḥāmid remarks that Criminal Circular 99/1983 needs revision and should be either abolished or modified. See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:34.

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Alcohol Consumption (shurb al-khamr) Alcohol consumption and, by extension, dealing in alcohol are, respectively, the two (ḥadd) crimes that have a special position in the Islamization of penal law in the Sudan. It should be noted here that no other ḥadd crime introduced in 1983 and reconfirmed in 1991 has been punished more widely and has affected more people. Based on reports, we can safely assume that many thousands of Sudanese were lashed or imprisoned for either consuming or selling alcohol, or for other alcohol-related offenses. The numerous campaigns against alcohol illustrate the importance the Sudanese regime attributes to the eradication of brewing, drinking, and selling alcohol. For example, during one of these campaigns in June 1994, over a period of sixteen days 657 people were charged with alcohol-related offenses. In Khartoum and its adjacent refugee camps many displaced Southern women make a living by brewing and selling alcohol. According to Article 79 of the Criminal Act of 1991, non-Muslims who deal in alcohol are not subject to flogging, but to a prison term not exceeding one year, or a fine. However, there are many reports that Southern refugee women were given 40 lashes for brewing alcohol.1 In other words, they received the same number of lashes due to Muslims convicted for the consumption of alcohol. Human rights reports document the fact that the punishment of flogging for alcohol consumption is often used to intimidate critics of the Islamic regime.2

Definition and Punishment of Alcohol Consumption in the fiqh The consumption of intoxicants was forbidden in the Qurʾān gradually, but no punishment was given for it.3 Qurʾānic terminology only refers to strong alcoholic drinks.4 The majority of Islamic jurisprudents use qiyās to interpret the meaning of khamr to represent every intoxicant (muskir), including alcoholic drinks other than wine, opiates, narcotics, and other drugs. Their punishability 1 See, for example, Amnesty International, Sudan, 43–45. 2 Ibid., 43. 3 El Baradie, Gottes-Recht und Menschen-Recht, 122; Enes Karic, “Intoxicants,” Encyclopaedia of the Qurʾān (Leiden: Brill, 2002), 556–557. 4 For example, sakar, sukāra, rahīq, khamr, etc. See Karic, “Intoxicants,” 556.

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is based on the sunna of the Prophet, according to which drinking intoxicants was to be punished by flogging. The fiqh, however, is split into two schools of thought with regard to the punishability of the consumption of alcoholic beverages. Both outlaw the drinking of wine made of grapes (shurb al-khamr al-mustakhraja min al-ʿinab), whether it is drunk in small or large quantities, and regardless of whether it causes drunkenness. They do, however, differ on the matter of drinking intoxicating drinks other than wine.5 According to the majority opinion of the fuqahāʾ, the consumption of any and all intoxicants is punishable by a ḥadd punishment. In the Shāfiʿī school and the majority opinion of the Ḥanbalī school, the punishment for a free person is 40 lashes; according to the Mālikīs, it is 80 lashes. The Ḥanafīs differ. As in the three other schools, drinking wine is completely forbidden and punishable by 80 lashes for the free person. However, in contrast to the other schools, drinking alcoholic beverages other than wine is only punishable if one becomes drunk.6 With regard to the difference between just drinking alcoholic beverages and becoming drunk by them, Abū Ḥanīfa is of the opinion that a punishable state of drunkenness occurs when the drinker has reached a state that prevents him from being able “to distinguish a man from a woman and the sky from the earth.”7 In other words, merely being tipsy would not qualify the drinker for a ḥadd penalty; rather punishability requires a state of delirium or complete intoxication. According to the fuqahāʾ, in order to be punished, those who drink wine and/or intoxicants must be sane (ʿāqil) and adult (bāligh), those who are insane or minors, as in the rest of Islamic criminal law, are not held criminally responsible. Further, according to the great majority of jurists, the culprit must be a Muslim. Dhimmīs and the mustaʾmin will not be punished as long as they do not cause a public nuisance, because alcohol consumption is not punishable in Christianity or Judaism.8 A public nuisance caused by the dhimmī or the mustaʾmin who is in a state of intoxication only leads to a taʿzīr punishment, not to the ḥadd. In order to entail the ḥadd, the drinking must be voluntary, not under duress or out of necessity (ḍarūra). Finally, in order to be punished by a ḥadd punishment, the culprit’s criminal intention must be established. Thus, someone who does not know that he is drinking wine or who does not know that drinking wine or becoming drunk on other alcoholic beverages is forbidden in the sharīʿa is not subject to the ḥadd. 5 6 7 8

Ibid., 556–557. Peters, Crime and Punishment, 64; El Baradie, Gottes-Recht und Menschen-Recht, 122. Bahnasī, al-Jarāʾim, 187. Ibid., 189–190.

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The same holds true for those who drink without knowing that they are in fact drinking an intoxicating liquid.9

The Definition of Alcohol Consumption in the Criminal Codes of 1983 and 1991 The Penal Code of 1983 defines khamr as any drink that is intoxicating when drunk in large (or small) quantities.10 In other words, the quantity consumed does not make a difference as long as the liquid consumed is of an intoxicating nature.11 In comparison, the Criminal Act of 1991 is much more precise. In accordance with the majority opinion of the fuqahāʾ, it defines khamr as “any intoxicant that intoxicates in small or large quantities, in pure or mixed form.”12 The 1991 definition for “khamr” thus reformulated the 1983 definition by including drinks that are a mix of wine/alcohol and non-alcoholic beverages. This precision is important since the fuqahāʾ discuss the applicability of the ḥadd in such cases. A majority opinion thus holds that no ḥadd penalty applies if the mixture contains more water than wine. If the mixture contains more wine (than water or another non-alcoholic substance) or if wine and water are contained in equal parts, then the ḥadd applies.13

Punishment of Alcohol Consumption in the Criminal Codes of 1983 and 1991 The Penal Code of 1974 recognized two offenses of drunkenness in a public place and punished them with a maximum prison term of seven days or a fine;14 drunkenness in a private place, and the failure to leave such a place upon

9 10 11 12 13

14

Ibid., 191. Penal Code of 1983, art. 445. The text of the article refers to a ḥadīth saying: kull mā yuskir kathīruhu faqalīluhu ḥarām. For punishments for alcohol consumption in practice, see Layish and Warburg, The Reinstatement, 233–235. Criminal Act of 1991, art. 3. Bahnasī, al-Jarāʾim, 183–184. It is unclear whether the usage of khamr in this context includes stronger drinks such as whiskey, vodka and the like. Bahnasī also discusses the use of alcohol when cooking or baking or through injections. In the latter case, no ḥadd applies, because the alcohol has not been drunk or eaten. Penal Code 1974, art. 443.

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request, was punishable with a maximum prison term of one month or a fine.15 The recidivist of either of these two offenses who had been convicted twice previously faced a maximum prison term of three months.16 The Islamized Penal Code of 1983, in contrast, increased the number of articles related to alcohol from three to seven, and introduced flogging as a standard penalty, often in combination with a prison term and a fine. It also introduced, for the first time, a not very stringent distinction between Muslim and non-Muslim offenders. Thus, under the Penal Code of 1983, alcohol consumption by a Muslim (only) was, and still is under the Criminal Act of 1991, punishable with 40 lashes.17 The punishment follows the majority opinion in the Shāfiʿī18 and Ḥanbalī schools.19 Both codes thus follow the milder option, given that Ḥanafīs and Mālikīs allot 80 lashes. In its effort to streamline and condense the Penal Code of 1983, its successor, the Criminal Act of 1991 has reduced the number of articles dealing with alcohol to three, the first of which makes drinking alcohol and the possession and manufacturing of it by a Muslim also punishable with 40 lashes.20 However, possession and manufacturing intoxicants do not fall under the ḥadd punishment according to the fiqh, even though buying, selling, and giving it as a gift is considered ḥarām21 and can be punished with a taʿzīr punishment. In the 1983 code dealing with alcohol, that is, producing, selling, buying, and transporting it was punishable by flogging, a fine or a prison term for Muslims and non-Muslims alike.22 A glance at the pertinent provisions on flogging shows that the number of lashes can range between 25 and 100.23 In other words, a Christian dealing with alcohol could have received more lashes than a Muslim for drinking alcohol.24 According to the majority opinion, a taʿzīr penalty, as in this case designated for a non-Muslim culprit, must not be harsher 15 16 17 18 19 20 21 22 23 24

Penal Code 1974, art. 444. Penal Code 1974, art. 445. Penal Code of 1983, art. 443 (1). Th.W. Juynboll, Handleiding tot de Kennis van de Mohammedaansche Wet Volgens de Leer der Sjâfiʿitische School (Leiden: E.J. Brill, 1930), 308. El Baradie, Gottes-Recht und Menschen-Recht, 22. See also Peters, Crime and Punishment, 64. Criminal Act of 1991, art. 78 (1). Scholz, “Die koranischen Delikte,” 454; see also El Baradie, Gottes-Recht und MenschenRecht, 172. Penal Code of 1983, art. 449. Penal Code of 1983, art. 64 (7). The reason for the harsher punishment is that it is expected that the Christian abets Muslims to drink alcohol.

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than the ḥadd penalty for a comparable crime. The definition of “prison term” is even less precise and basically gives the judge the latitude to decide on a term he sees fit. Most probably due to the highly symbolic meaning the ban of alcohol consumption has among the Islamist forces in and outside the government,25 legislators have not made use of possibilities—for example, by way of takhayyur26 or talfīq27—to restrict the applicability of the ḥadd punishment for alcohol consumption.28 Further, in addition to the ḥadd offense, Article 78 (2) of the Criminal Act of 1991 provides for “imprisonment for a term not exceeding one month” or with flogging “not exceeding 40 lashes” or a fine for whoever drinks alcohol and “thereby provokes the feelings of others or causes annoyance or nuisance thereto or drinks the same in a public place or comes to such a place in a state of drunkenness.” As mentioned above, the fiqh is not interested in non-Muslims drinking alcohol, unless they cause a public nuisance.29 The Criminal Act of 1991, however, leaves room for the punishment of drinking by non-Muslims even in cases that do not involve cases of public nuisance. It does not explicitly allow the drinking of alcohol by non-Muslims in private places, thus the provocation of the feelings of others could take place in a private gathering of Muslims and non-Muslims. Further, lacking a precise definition in Article 3,30 it remains unclear what sort of place is considered public. Finally, the text of the provision allows for up to 40 lashes even for non-Muslims. In combination with the imprecise wording of the text, legislators have, in fact, left leeway for judges to impose on non-Muslims the de facto ḥadd punishment for shurb al-khamr. Since Article 78 (2) allows that a fine could be added to the 40 lashes, a non-Muslim could even be punished more severely than a Muslim 25 26 27

28 29

30

For an account of convictions for alcohol consumption under Numayrī, see Layish and Warburg, The Reinstatement, 233–235. Defined as “eclectic expedient.” Literally, “patching,” a sophisticated version of takhayyur that involves bringing together legal doctrines in a set of statutory provisions that address a specific topic; however, the doctrines are culled from different schools without regard to their historical and systematic context (Layish and Warburg, The Reinstatement, 326, and Schacht, An Introduction, 106). The wide applicability of alcohol-related offenses is, however, contrasted by the milder punishment of 40 lashes instead of 80. El Baradie, Gottes-Recht und Menschen-Recht, 122. “Persons, who do not belong to the Muslim religion … can not be held responsible for an infraction of the ban on drinking (alcohol),” Krcsmárik, “Beiträge zur Beleuchtung,” 324. Criminal Act of 1991, art. 3, explains the most important definitions and meanings of terms used in the Criminal Act.

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who receives the ḥadd punishment only. As for Muslims, Article 78 (2) represents a qualified ḥadd offense,31 which entails the imposition of up to 40 lashes, that is, a number of lashes equaling the ḥadd penalty, possibly in combination with a fine. In other words, the qualified ḥadd offense can be harsher than the original ḥadd offense. With regard to this offense, the Penal Code of 1983 (Art. 444) distinguished between Muslims and non-Muslims. While Muslims are to be punished with 40 lashes and prison, the latter should expect flogging and a fine or imprisonment. In a definition that is highly practical and relevant (given the frequency of the crime), Article 79 of the Criminal Act of 1991 further adds that “whoever deals in alcohol by storing, selling, purchasing, or transporting [will be punished] with a prison term not exceeding one year or with a fine.” In the Penal Code of 1983, the same offense, in a slightly different wording, was punished by flogging, fine, and imprisonment (Art. 449), without further specification. If any of the offenses described above and punishable under the Criminal Act of 1991 is committed for a third time, the punishment is harsh. Muslims who are caught drunk for the third time (Art. 78 (1)), Muslims and non-Muslims alike who create a nuisance in public places while being drunk for a third time (Art. 78 (2)) or those who are convicted for dealing in alcohol for a third time (Art. 79) receive a prison term of up to three years and/or 80 lashes and “the means of transport and tools used in the commission of such offense shall be forfeited …” (Art. 81 of the Criminal Act of 1991). The latter provision gave the Supreme Court a reason to correct an earlier decision by a court of prices and public order (maḥkama al-asʿār wa-l-niẓām al-ʿāmm).32 The court sentenced a woman, who had been dealing in alcohol, to a one-year prison term, a fine of 10,000 Sudanese pounds, and confiscated her house under Article 81 of the Criminal Act of 1991. The Supreme Court confirmed the prison term and the fine. The confiscation of the house, however, was annulled, not only because the woman had been convicted only twice and not three times as stated under Article 81, but because a house is an unmovable good and thus not covered by the definitions of Article 81. The terms used there are “means of transport” and “tools used in the commission of the crime.” Thus, according to this judgment, the meaning of tools does not include real estate used for the storage of alcohol or used in any other way for selling alcohol.33

31 32 33

Scholz, “Die koranischen Delikte,” 455. I have not found any other published Supreme Court decision that reviews a case decided earlier by a Public Order Court. sljr (1994), 1329/1994.

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The Lapsing of the ḥadd Penalty for Alcohol Consumption Criminal Circular 92/8334 defines cases leading to the lapsing of the ḥadd penalty for alcohol consumption as the following:35 (1) the withdrawal of the confession when the crime was proven by confession only (and not, e.g., by circumstantial evidence); (2) the withdrawal of the testimony of witnesses, provided there is no proof confirming their testimony; and (3) discrepancies in the testimonies of witnesses. However, the circular specifies that the lapsing of the ḥadd does not mean that the culprit goes unpunished. He is rather subject to a taʿzīr punishment.

∵ Sudanese legislators have, in 1983 and 1991 alike, banned all alcoholic and other (potentially) intoxicating beverages, including wine, in whatever quantity and regardless of whether or not they cause intoxication. Concerning proof, the requirements for witnesses, as prescribed by fiqh, are substantially lowered in the relevant Evidence Acts of 1983 and 1993. Both codes allow for female and non-Muslim witnesses and thus contradict Islamic jurisprudence. These two codes also blur the distinction between the relevant ḥadd punishment and taʿzīr punishments applicable to related crimes or to non-Muslim offenders. Thus, the 1983 code punished the producing, selling, buying, and transporting of alcohol with flogging, a fine or a prison term. Since judges had the latitude to choose any number of lashes between 25 and 100, a non-Muslim offender, instead of receiving a lesser taʿzīr punishment, could be subjected to twice as many lashes as a Muslim convicted for alcohol consumption. In the Criminal Act of 1991, this contradiction remains. A non-Muslim who causes a public nuisance or provokes the feelings of others shall also receive a maximum number of 40 lashes, that is, the exact number applied to Muslim offenders subject to the ḥadd. In the case of recidivists this disproportion is even accentuated; they are punished with a prison term of up to three years and/or up to 80 lashes. Given the strong attitude of the Sudanese government against alcohol consumption and dealings in alcohol, we must note that in the great majority of

34 35

See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:13. These are also applicable with regard to other ḥadd crimes. For a detailed account of reasons which make a ḥadd crime lapse, see the respective chapters.

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cases these crimes are dealt with swiftly by Public Order Courts. Those convicted are often intimidated and have no legal assistance. They do not know their legal rights and when they waive their right to appeal, they are punished immediately. This situation is also reflected in the scarcity of Supreme Court decisions on this matter. A few decisions, however, delineate some of the pertinent questions related to alcohol consumption. Thus, the Supreme Court has decided that the mere fact that a witness drank alcohol does not disqualify him as a witness, for that matter, nor does it destroy his good reputation (ʿadāla), which is a precondition for giving testimony in ḥadd and qiṣāṣ cases. According to the same judgment, the ʿadāla is only forfeited if the witness is a habitual drinker known to the community or publicly laughed at for his drinking. The court’s leniency with regard to a witness who consumes alcohol served to prove a case of intentional homicide and convict the murderer. Since the heirs of the victim insisted on their right to qiṣāṣ, the court weighed the protection of the rights of the heirs as more important than possible reasons to remit qiṣāṣ, such as insufficient testimony. Another Supreme Court decision clarified that the punishment for a recidivist dealer in alcohol is limited—next to prison, flogging, and a fine—to the confiscation of the means of transporting the alcohol and the tools used in the perpetration of the crime. The dispossession of the house of the culprit is thus not covered by the law. Finally, the Supreme Court ruled that the passing of several days between the event of the crime and the initiation of legal procedures causes the ḥadd punishment to lapse. Following the legal opinion of Abū Ḥanīfa, the Supreme Court ruled that the smell of alcohol must still be discernible at the time of the testimony—that this is a precondition for the validity of the testimony and that with the disappearance of the smell, limitation takes effect. With this judgment, the Supreme Court secured a swift prosecution of cases related to alcohol consumption. At the same time, it forestalled the possibility of charges of alcohol consumption being filed days or weeks after the offense was committed.

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Ḥadd Theft (sariqa ḥaddiyya) Ḥadd Theft in the fiqh The fiqh Definition of ḥadd Theft Based on the Qurʾānic verse 5:38–39: “As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. Allah is Mighty, Wise. But whoever repents after his wrongdoing and amends, Allah will relent towards him. Allah is Forgiving, Merciful.”1 Muslim jurists included sariqa ḥaddiyya or ḥadd theft in the small group of ḥadd crimes. Since the Qurʾān does not specify which hand is to be cut, or what should happen to the recidivist, or any other legal rule pertaining to ḥadd theft, the elaboration of the details was undertaken by Muslim jurists. As a consequence, the uncertain meaning of sariqa in the Qurʾān and ḥadīth2 led to numerous opinions and disagreements among the fuqahāʾ. The fuqahāʾ define sariqa ḥaddiyya as the surreptitious removal of legally recognized property (māl) in the safe keeping (ḥirz) of another person, that amounts to a specific minimum (niṣāb) to which the thief has no right of ownership and which has not been entrusted to him.3 The offender must be adult (bāligh), sane (ʿāqil), and must have the intention of stealing, that is, he cannot be acting under duress.4 All of these elements must be fulfilled for the ḥadd punishment of amputation (qaṭʿ) to be applicable. Below, we 1 Compare Josef E. Lowry, “Theft,”Encyclopaedia of the Qurʾān (Leiden and Boston: Brill, 2006), 5:254–256; W. Heffening, “Sariḳa,” Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: E.J. Brill, 1960–2004), 9:62–63. 2 A list of ḥadīths concerning sariqa can be found in Bahnasī, al-Mawsūʿa, 3:264ff. 3 This definition tries to reflect all the important elements of the different definitions given by the fuqahāʾ. Compare El Baradie, Gottes-Recht und Menschen-Recht, 109. 4 For a discussion of sariqa in the fiqh see the following works in Arabic: ʿAwda, al-Tashrīʿ, 2:514ff.; Bahnasī, al-Jarāʾim, 15ff., Aḥmad Fatḥī Bahnasī, Madkhal al-fiqh al-jināʾī al-islāmī (Cairo and Beirut: Dār al-Shurūq, 1989), 27ff., Bahnasī, al-Mawsūʿa, 3:263–310 and al-Jazīrī, al-Fiqh, 5:122–163. For literature in western languages, see Schacht, An Introduction, 179–180; Heffening, “Sariḳa,” 9:62; Peters, Crime and Punishment, 55–57, Bleuchot, Droit musulman, 2:690–694; David F. Forte, “Islamic Law and the Crime of Theft: An Introduction,” in Tahir Mahmood, et al. (eds.), Criminal Law in Islam and the Muslim World: A Comparative Perspective (New Delhi: Institute of Objective Studies, 1996), 690; Arévalo, Derecho Penal Islamico, 102–

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explain in some detail what the different elements of the definition of sariqa mean. What exactly is the meaning of “legally recognized property” (māl)? It must be possible to own the property, it must be movable (manqūl), valuable (mutaqawwam), and protected (maʿṣūm). Anything forbidden in Islam, such as pigs or alcohol, cannot be owned by Muslims and therefore cannot lead to the Qurʾānic punishment for sariqa. Only movable property that can be legally owned can thus be the object of sariqa. The fuqahāʾ agree that the stolen good must be physically moved from the possession of the aggrieved party into the possession of the perpetrator. Land and buildings that are immovable therefore cannot be stolen in the sense of the definition of sariqa.5 Something is considered valuable if it is storable and reaches the minimum value (niṣāb) of 10 dirhams (equivalent to the value of 4.25 grams of gold) according to a majority opinion.6 The fuqahāʾ discuss five groups of things, and whether or not their theft constitutes sariqa: (1) The stealing of perishable foodstuffs, such as fresh meat, fruits, or milk does not lead to amputation, according to a majority opinion backed by Abū Yūsuf, Mālik, and al-Shāfiʿī, but not the Ḥanbalīs.7 (2) The stealing of things and animals which are ownerless (mubāḥ), such as wood, grass, fish, and birds, including ducks and pigeons, does not entail amputation. However, some fuqahāʾ hold that if such animals are stolen from a ḥirz, a legal uncertainty cannot be invoked and thus amputation is due.8 (3) Things whose consumption or use are forbidden in Islam, such as pigs or wine or animals not slaughtered in accordance with the requirements of Islam or musical instruments that are considered instruments of sin (āla li-l-maʿṣiyya).9 (4) Children and slaves. A free youth cannot be owned and therefore cannot possibly be an object of sariqa, even if he is wearing a piece of jewelry that is stolen with him. Abū Yūsuf advocates amputation if the valuables carried by the youth reach the niṣāb. The stealing of an underage slave, however, entails amputation, because a slave is an ownable good. Abū Yūsuf, however,

5 6

7 8 9

109, Bambale, Crimes and Punishments, 53–61; and El Baradie, Gottes-Recht und MenschenRecht, 108–117. Bahnasī, al-Mawsūʿa, 3:277–278. Bahnasī quotes two main opinions on the amount of the niṣāb. The first opinion is represented by the fuqahāʾ of the Hijaz, al-Shāfiʿī and Mālik and others, which set the niṣāb at 3 silver dirhams, or a quarter gold dirham. The second opinion is represented by the Iraqi fuqahāʾ, which set the niṣāb at ten dirhams. Ibid., 3:280. Bahnasī, al-Jarāʾim, 36–37. Ibid., 38–39. ʿAwda, al-Tashrīʿ, 2:552.

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disagrees. According to him the human nature of the underage slave creates a legal uncertainty as to whether he fulfils the criteria as a good (māl), the stealing of which leads to amputation.10 (5) Copies of the Qurʾān, candles from a mosque or their doors and the like. The stealing of copies of the Qurʾān has been a special and detailed topic of discussion by the fuqahāʾ. Some— among them Abū Ḥanīfa—argue that the Qurʾān contains the word of God, for which a financial compensation is not permissible. Mālik and al-Shāfiʿī advocate the necessity of amputation because they consider copies of the Qurʾān an ownable good.11 The property of Muslims, dhimmīs, and mustaʾmins is inviolable and protected (maʿṣūm), but the property of ḥarbīs is not. The stolen property must further belong to someone else entirely (mamlūk li-l-ghayr), that is, it cannot be ownerless, nor should the thief be the sole owner or co-owner of the property in question. With regard to our discussion of modern Sudanese law, the category of co-ownership, which includes public property or things to which the thief holds a title, is quite important. There is an assumption that stealing public property constitutes a legal uncertainty with respect to ownership (shubhat al-milk). The Ḥanafīs, the Ḥanbalīs, and the Shāfiʿīs adhere to this opinion while the Mālikīs hold that amputation is obligatory, even if the stolen good is public property.12 Further, the stolen property must have been taken from a safe place where the specific good is customarily kept (ḥirz). A ḥirz can be constituted by a place (this is called ḥirz bi-l-makān), or through the surveillance of a guardian (called ḥirz bi-l-ḥāfiẓ). In the former case the property in question is kept in a closed room that can only be entered by authorized persons. The room must be suitable to protect the valuables against theft, such as a house or a stable. However, the protection (ḥirz) can only be established if the good is kept in a suitable place. The ḥirz for cattle can be in the barn, but not in a house, and conversely, money hidden in the stable is not considered to be in a ḥirz. A ḥirz is not constituted when the front door of the house is open or when guests are allowed into the house where the valuables are kept. A case quoted by Ḥassūna, the Sudan Supreme Court judge and prolific commentator on Islamic criminal law, illustrates this point. A Sudanese court 10 11

12

Bahnasī, al-Jarāʾim, 41. Compare ʿAwda, al-Tashrīʿ, 2:552. While Schacht, An Introduction, and El Baradie, GottesRecht und Menschen-Recht, for the sake of conciseness refer to a majority opinion in their discussion of the ownability of goods, Bahnasī and ʿAwda delve into the matter further. See also Bahnasī, al-Mawsūʿa, 3:278–279 and Bahnasī, al-Jarāʾim, 36–43. Bahnasī, al-Mawsūʿa, 3:284, and al-Jazīrī, al-Fiqh, 5:146. Schacht does not refer to the minority opinion of the Mālikīs. See Schacht, An Introduction, 180.

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convicted two defendants for non-ḥadd theft because the object of the theft was a camel that had been attached outside a house, but in a corral intended to keep the camel. The court, however, decided that the front side of a house cannot be considered a ḥirz, even if the stolen good (that is, the camel) was inside a corral intended to be a ḥirz for it.13 The theft of money entrusted to someone (the embezzler) would be considered khiyāna (embezzlement),14 but would not qualify as ḥadd theft. As mentioned, a ḥirz is constituted when a guardian protects a property against theft (ḥirz bi-l-ḥāfiẓ). In that case, the guardian must either be awake or physically touching the property in a way that he would wake up if the good is taken from him. Finally, another important criterion that constitutes sariqa ḥaddiyya is that the property must be stolen surreptitiously. If it is taken openly, the thief is called a ghāṣib, a usurper; if it is taken by force, the act is deemed nahb, robbery (and the thief is a muntahib, a robber), but he is not guilty of ḥadd theft.15 Proof of ḥadd Theft in the fiqh In the fiqh, ḥadd theft is proven either by the culprit’s confession or by the testimony of witnesses.16 The issue of whether a single confession is sufficient for a conviction of sariqa or whether the confession must be made twice is controversial. Abū Ḥanīfa and al-Shāfiʿī are content with a single confession, while Abū Yūsuf and the Ḥanbalīs preclude amputation unless the culprit has confessed twice in two different sessions.17 If the confession is withdrawn before the actual execution of the amputation, the punishment lapses (see details below). For the testimony to be valid, two men of good reputation must testify. The testimony of women, the testimony of those not meeting the legal requirements of righteousness, or the testimony on the testimony (shahāda ʿalā lshahāda) is not accepted. The qaḍī must show great caution and ask the witnesses about the details of the ḥadd theft (e.g., with regard to place, time, and circumstances), in order to avoid mistakes. This is especially important since the punishment is severe. The qāḍī is bound to pay special attention to the victim of the theft and whether it is a foreigner or a relative or a spouse. Any doubt concerning the identity of the victim should be eliminated. All schools agree 13 14 15 16 17

Ḥassūna, Jarāʾim al-qatl, 310 quoting a case from 1991. Bahnasī, al-Mawsūʿa, 3:275 and El Baradie, Gottes-Recht und Menschen-Recht, 110–112. Bahnasī, al-Mawsūʿa, 3:275 and El Baradie, Gottes-Recht und Menschen-Recht, 112. For the following see, Bahnasī, al-Jarāʾim, 75–80. Compare ibid., 76.

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that amputation cannot take place if the witnesses disagree on the place, the time, the stolen good, or the victim. Circumstantial evidence in ḥadd theft cases is not admitted by the fiqh18 as proof of sariqa ḥaddiyya. Punishment of ḥadd Theft in the fiqh For the first commitment of ḥadd theft, the fuqahāʾ have determined that the punishment should be the amputation of the right hand. The punishments for recidivists are severe: the severing of the left foot for the second sariqa ḥaddiyya. For the third repetition, Ḥanafīs and Ḥanbalīs allow imprisonment, while Shāfiʿīs and Mālikīs envisage the amputation of the left hand, and for the fourth theft, the remaining right foot.19 The victim of the theft has the right to the restitution of the stolen good and the thief is obliged to return it. If the stolen good has vanished, the thief must indemnify the victim of the theft. However, opinions differ as to whether indemnification is due if the ḥadd penalty is executed. The Ḥanafīs opine that in such a case, if the ḥadd penalty is carried out, the financial compensation (ḍamān) lapses.20 Legal Uncertainties and the Lapsing of the Punishment for ḥadd Theft in the fiqh Once all conditions for the execution of the ḥadd penalty are fulfilled, it must be executed. However, under certain circumstances, the ḥadd punishment lapses. According to the Ḥanafīs, this is the case when the victim of the theft denies either the accuracy of the thief’s confession or the accuracy of the testimony of the witnesses. It does not matter when this denial of the accuracy of the confession or the testimony happens (at the beginning or after the proceedings of the lawsuit and the prosecution for sariqa). In this case, Mālik does not see a reason for the punishment to lapse, as long as it is firmly established that the purpose of the denial is to help the culprit and the denial does not concur with reality. Al-Shāfiʿī and Aḥmad b. Ḥanbal are of the same opinion, provided the denial takes place after the legal proceedings. If it takes place before the proceedings and the prosecution for the ḥadd theft, amputation is not obligatory.21

18 19 20 21

Compare to the exceptions of proof regarding shurb al-khamr and zinā. El Baradie, Gottes-Recht und Menschen-Recht, 116. Ibid. ʿAwda, al-Tashrīʿ, 2:629–630.

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A pardon of the victim of the theft causes the ḥadd to lapse only if it happens before the case has been reported to the authorities.22 As a ḥadd crime, ḥadd theft is not a private matter and must be prosecuted once it is known to the authorities. According to a majority opinion of the schools—with the exception of a minority of the Shāfiʿīs—the ḥadd also lapses if the proof is based on a confession only and this confession is withdrawn either explicitly or implicitly. If the ḥadd theft was committed by two persons and only one of them withdraws his confession, only his ḥadd lapses, according to Mālik, al-Shāfiʿī, and Aḥmad b. Ḥanbal. Abū Ḥanīfa, however, holds that the withdrawal of the confession of one of the culprits creates a legal uncertainty about the crime as such and he therefore maintains that the ḥadd on both suspects lapses. Likewise, if only one of the two confesses, sariqa is not proven.23 Further, according to the Ḥanafīs, the ḥadd lapses if the thief returns the stolen good before a suit has been filed, because if the stolen good has been returned there will be no lawsuit that could lead to amputation.24 Abū Yūsuf, by contrast, holds that the return of the stolen goods before or after the legal procedure does not change the fact that sariqa, which entails amputation, occurred. Of the other three Sunnī schools, Mālik, al-Shāfiʿī, and Aḥmad b. Ḥanbal likewise do not consider the return of the stolen good to be a valid reason not to apply the ḥadd.25 The Ḥanafīs, with the exception of Abū Yūsuf, further hold that if the thief legally acquires the stolen good (tamalluk al-masrūq) before the trial, the amputation lapses and if he acquires the stolen good after the judgment and before the execution of the punishment, the ḥadd also lapses. The Shāfiʿīs and the Ḥanbalīs, by contrast, hold that the punishment only lapses if the defendant, who is not a thief in this case, has legally acquired the “stolen” good before the complaint has been lodged. If the defendant acquires the good in question only after the complaint of theft has been made, the punishment does not lapse. Mālik only considers the time when the ḥadd theft was committed (not the time of the complaint, lawsuit or judgment). If the good in question was not the property of the thief, he is subject to amputation.26 Moreover, the fiqh recognizes a range of cases in which the ḥadd punishment for ḥadd theft lapses. The jurists primarily consider cases involving var22 23 24 25 26

Peters, Crime and Punishment, 57. ʿAwda, al-Tashrīʿ, 2:630–631. Ibid., 2:631. Ibid. Ibid., 2:629–633.

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ious degrees of (blood) relationships. There are three opinions on the consequences of sariqa between spouses. The first opinion holds that the thief (sāriq) is to be amputated. The second opinion maintains that neither spouse should be punished because the wife has a right to maintenance (nafaqa), while the husband can declare his wife legally incompetent and prevent her from administering her property. In that case, he can administer her property for her and that would create a shubha when he steals it. Finally, some opine that the husband is liable to ḥadd if he steals from his wife, but the same is not the case if a wife steals from her husband, because she has the right to maintenance and he does not.27 Ḥadd theft between ascendants and descendants is equally controversial. The Ḥanafīs hold that someone who steals from his parents or from his child is not subject to the ḥadd for ḥadd theft because of a legal uncertainty concerning property between them and their mutual right to enter a place where valuables are safely kept (dukhūl al-ḥirz). Mālik, however, is of the opinion that a father who steals from his son is not liable to the ḥadd penalty based on the ḥadīth, “you and your property belong to your father.” A son, however, does not have any right to the property of his father and therefore is punished with the ḥadd punishment.28 Finally, the fuqahāʾ discuss ḥadd theft between close relatives. Mālik, alShāfiʿī, and the Ḥanbalīs hold that there is no legal uncertainty pertaining to property and therefore they deem amputation obligatory. Abū Ḥanīfa and Abū Yūsuf state that theft between close relatives cannot be punished by amputation, since they have the right to enter their respective houses, thus creating a legal uncertainty as to ḥirz.29 Another case discussed in the fiqh is theft committed by a dhimmī or a ḥarbī. Muslims and dhimmīs alike receive the ḥadd punishment for stealing from either a Muslim or a dhimmī according to al-Shāfiʿī and the unanimous opinion of the other schools. The same holds true for a ḥarbī who enters Islamic territory as a mustaʾmin. Abū Ḥanīfa, however, holds that the ḥadd punishment for sariqa is not applicable to the ḥarbī, by analogy with the non-applicability of the ḥadd for zinā in such a case.30

27 28 29 30

Bahnasī, al-Jarāʾim, 54–55. Ḥassūna, Jarāʾim al-qatl, 304. Bahnasī, al-Jarāʾim, 55–56. Ibid., 57. Ibid., 64.

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Ḥadd Theft in the Penal Code of 1983 A codification of sariqa ḥaddiyya, like other Qurʾānic punishments, was first introduced in the Sudan in the Penal Code of 1983. The codification of theft in Article 320, however, was not entirely new, since it was almost31 a literal copy of the definition of theft in the Penal Code of 1974, with the addition of two clauses32 that define sariqa ḥaddiyya and the minimum value (niṣāb) respectively. The new definition of ḥadd theft (sariqa ḥaddiyya) was worded as follows: “Whoever, with evil intent, takes from the possession of a person, without his consent, movable, valuable property that belongs to someone else, with a value not less than the niṣāb, is considered to have committed ḥadd theft.”33 With regard to the notion of property “belonging to someone else” (mamlūkan li-l-ghayr) Ḥassūna quotes a court decision from 1990 of a case in which it was proven that the defendant had entered the house of the plaintiff without her permission and then committed the theft. However, the defendant had been present in the house of the plaintiff at other times when she was absent, but with her permission. On those occasions, he had entered the room of the plaintiff because it was open. The court, therefore, was of the opinion that the house should not be considered a ḥirz because in general, the defendant was allowed to enter it and as a consequence “he became like someone who lived in the house.” Therefore, the ḥadd was deemed inapplicable and he was punished with the taʿzīr punishment for non-ḥadd theft.34 While the niṣāb, defined as a quarter gold dinar or three silver dirhams or its equivalent in Sudanese currency,35 is clearly based on the opinions of al-Shāfiʿī and Mālik,36 the definition of sariqa ḥaddiyya and subsequent articles that extend the scope of its application pose a variety of problems with regard to their basis in the fiqh. Notably, the definition of sariqa in the Penal Code of 1983 ignored essential features of sariqa as agreed upon by the fuqahāʾ. In particular, the notions of ḥirz and the exigency of surreptitiousness were absent.37 As a consequence, the applicability of sariqa ḥaddiyya was broadened to such a degree that it cannot claim to be faithful to the teachings of the fuqahāʾ, in fact 31 32 33 34 35 36 37

The only new aspect to the definition is the notion of evil intent (sūʾ qaṣd). Penal Code of 1983, art. 320 (2) and (3). Penal Code of 1983, art. 320 (2). Ḥassūna, Jarāʾim al-qatl, 310 quoting 141/1990, Trial of Ibrāhīm Mūsā l-Ḥiwār. Penal Code of 1983, art. 320 (3). Compare preceding section. Köndgen, Das Islamisierte, 113.

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it may contradict their intentions. It is only the case law of the the Supreme Court that fills this gap and subsequently defines ḥirz and guides the lower courts. Thus, instead of adhering to a clearly defined set of rules and notions meant to delineate and limit its application, in 1983 Sudanese legislators stripped the classical definition of sariqa ḥaddiyya of some of its vital prescriptions. Consequently, the lack of ḥirz as a precondition meant that thefts outside houses, barns or other safe places where movable property was normally kept fell under the definition of sariqa. Further, thefts that, according to fiqh, would qualify as ghaṣb (usurpation), ikhtilās (snatching) something without the owner noticing, khiyāna (embezzlement) or nahb (robbery), that is, taking property in the open or by force, could also qualify as sariqa ḥaddiya. In the fiqh, these crimes are not punished with ḥadd penalties.38 In fact, if we compare the old definition of theft (the non-ḥadd sariqa) and the new definition of sariqa ḥaddiyya, we do not find many differences. Only the two notions of niṣāb and “ownable” were added to the definition taken from the Penal Code of 1974. However, while the niṣāb was defined, the notion of “ownable” was not. Thus, it remained unclear which legal opinion the Sudanese legislators meant to adhere to and what kinds of stolen property would or would not fall under the definition of sariqa. The interpretation of Article 320 is made more difficult by the fact that all examples of the 1974 code have been omitted.39 By contrast, five explanations were simply taken over, without, however, specifying whether these explanations refer to the old definition of sariqa or to sariqa ḥaddiya or possibly both. After distinguishing between theft and ḥadd theft in Article 320, Article 324 introduces amputation as a punishment for (regular) theft in conjunction with preparations made for causing death or harm. As in other instances,40 the Penal Code of 1983 extends the applicability of ḥadd punishments to crimes that may remotely resemble sariqa ḥaddiyya, but that do not qualify as such under the definitions proposed by the fuqahāʾ. In order to impose the ḥadd penalty of amputation for ḥadd theft (sariqa ḥaddiyya) it is essential that it was in fact sariqa ḥaddiyya that was committed.41 Thus, in 1983, a whole range of crimes that are related to (but by definition are different from) sariqa ḥaddiyya and ḥirāba, crimes that were 38 39

40 41

Compare also Layish and Warburg, The Reinstatement, 119. The Penal Code of 1974 illustrated the meanings of articles by giving model cases; this helped judges in their interpretations and jurisdictions. Later codes omitted these illustrations, thus forgoing an important instrument in guiding the judiciary. See, for example, chapters on ḥirāba and zinā and n. 215. Compare also Köndgen, Das Islamisierte, 115.

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taken almost literally, or with few additions or changes, from the Penal Code of 1974, have been paired with a variety of ḥadd punishments. The Initiation of Legal Proceedings It is important to note that even if the thief confesses or the theft is proven based on the testimony of witnesses, the ḥadd penalty can only be imposed if the person whose property was stolen, that is, the owner of the stolen good, institutes legal proceedings against the thief. The official lawsuit pursued by the victim of the theft is considered a precondition for the appearance of theft (li-ẓuhūr al-sariqa) and for the execution of the ḥadd penalty.42 This principle is also maintained in Sudanese criminal law, as the following two cases demonstrate. In 1985 two thieves stole a considerable amount of clothing and a sum of 940 Sudanese pounds from a house. The culprits, a certain al-Amīn Saʿīd Umm Dabaka and his accomplice Aḥmad ʿUthmān, were quickly found and both confessed to the theft. The responsible local penal court convicted both of them for ḥadd theft based on Article 322 (2) (ḥadd theft from a residential property) in conjunction with Article 320 (2) (ḥadd theft) of the Penal Code of 1983. In its review, however, the Supreme Court remarked that even though the owner of the stolen goods was established as a certain Buthayna Ḥajj ʿUthmān, as the aggrieved party, she did not attend the trial of the case at the trial court, nor did she file a lawsuit against the culprits. Therefore, the Supreme Court, quoting a legal opinion held by Abū Ḥanīfa, decided to revoke the decision of the lower court and return the file to the trial court in order to impose a taʿzīr punishment according to Article 322 (1) (a non-ḥadd theft from a residential property).43 In a comparable case, the Supreme Court confirmed this reasoning: in 1990, the defendant Muḥammad Bārūd Akul found the plaintiff sleeping on the ground in a parking lot. He took advantage of the situation, ripped the pocket of his victim, stole 325 Sudanese pounds, and fled. The following day, after missing his purse, the plaintiff informed the police, who, after finding evidence that led to the culprit, arrested Akul. Akul confessed to the theft. However, when the plaintiff did not appear at the trial, the court had to content itself with the testimony of the two policemen who were responsible for the investigation. The court deemed that the defendant, who had confessed, was guilty of ḥadd theft and convicted him to the amputation of the right hand. In its review, the Supreme Court followed the Ḥanafīs, the Shāfiʿīs, and some of the Ḥanbalīs

42 43

Compare Amīr ʿAbd al-ʿAzīz, al-Fiqh al-jināʾī fī l-Islām (Cairo: Dār al-Salām, 1997), 370–371. See Government of the Sudan vs. al-Amīn Saʿīd Umm Dabaka, sljr (1985).

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who hold that the testimony of witnesses cannot be accepted if there is no lawsuit (khuṣūma) and that there is no lawsuit if the aggrieved party who has the right to sue is not present during the legal proceedings. Consequently, the ḥadd penalty of amputation lapsed and the Supreme Court applied Article 321 (1) (non-ḥadd theft) and convicted Akul to three and a half years in prison instead.44 The Possibility of a Private Settlement (ṣulḥ) Furthermore, if proven guilty, amputation does not take place as long as the rightful owner of the stolen good does not demand, before a judge, the application of the fixed penalty and the restitution of the stolen property. This rule is the leading opinion among the Ḥanafīs, the Shāfiʿīs, and the Ḥanbalīs.45 The Mālikīs do not make the claim of restitution and the initiation of a lawsuit by the owner a precondition for the amputation. The effect of a private settlement (ṣulḥ) between the aggrieved party and the ḥadd thief was not resolved, originally, by Sudanese legislators. A decision of the Supreme Court, however, shows that a private settlement does not exempt the culprit from punishment. On 20 November 1987, the plaintiff Mīrghanī Aḥmad Maḥjūb reported to a police post that the defendant Burhān Sīlāsī and others had stolen from him gold jewelry worth 90,000 Sudanese pounds. After the arrest of the accused it appeared that part of the gold had been sold to a second defendant, Qarīb Allāh Bashīr, and a third defendant, Ṣadīq ʿAbd al-Karīm Bashīr Muṣṭafā, after the charges had already been filed. In a subsequent court hearing the defense lawyer argued that the plaintiff had given up his rights with respect to the second and third defendant. The court, however, refused to acknowledge this settlement (ṣulḥ) on the grounds that the case touched upon public rights (ḥaqq ʿāmm) and that no private person was authorized to renounce such rights. The case was reviewed by the Supreme Court, which decided that in cases of sariqa and crimes related to it, a private settlement is not permissible

44

45

See Government of the Sudan vs. Muḥammad Bārūd Akul, sljr (1990). Conspicuously, the court chose not to discuss the question of whether the money was indeed stolen from a ḥirz. The absence of a ḥirz certainly could have served as a second argument in defense of the lapsing of the ḥadd. Compare ʿAwda, al-Tashrīʿ, 2:614–615 and Peters, Crime and Punishment, 57. ʿAwda quotes a second opinion among the Ḥanbalīs, one that concurs with that of the Mālikīs. There is also a discussion among the fuqahāʾ on who can initiate the legal proceedings (man yamluk al-khuṣūma). All schools agree that the rightful owner (mālik al-māl) can do so. It is debatable whether other people who are holding property on behalf of the rightful owner may start legal proceedings for sariqa ḥaddiya. See ʿAwda, al-Tashrīʿ, 2:614.

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because these are considered crimes against the public order and the interests of society.46 Such crimes, as well as crimes against the state, are exempted from settlement according to the meaning of Article 270 of the Penal Code of 1983. In all other crimes, private settlement is permitted, as long as it does not contradict the sharīʿa. In other words, settlements in cases of sariqa and related crimes47 do not stop criminal proceedings or possible convictions. It must be noted here that according to Criminal Circular 98/1983, the ḥadd penalty in ḥadd theft cases only lapses if the thief has returned the stolen goods before charges have been filed. This concurs with the general rule in the fiqh that once a case has been made known to the authorities concerned and the aggrieved party has asked for the application of the ḥadd punishment, the victim of the theft cannot pardon the defendant.48 Legal Uncertainties and the Lapsing of the ḥadd in the Penal Code of 1983 The Penal Code of 1983 ruled out the ḥadd penalty when the victim and offender are ascendants and descendants, or close relatives whose marriage is precluded, or spouses. In addition, ḥadd cannot be prosecuted when there is doubt about the ownership of the stolen good (shubhat al-milk). However, the Penal Code of 1983 leaves it to the judge to interpret what constitutes shubhat al-milk.49 The short and deficient list of reasons to remit the ḥadd penalty for ḥadd theft, as given by the legislators of the Penal Code of 1983, moved the Sudanese chief justice to supplement it and produce a criminal circular specifying valid reasons for such a case, based on various ḥadīths. The circular50 added the following as reasons for the remittance of the ḥadd penalty: (1) If the crime has been proven only by the culprit’s confession and he withdraws his confession. (2) If the witnesses withdraw their testimony. (3) If the victim of the theft denies the thief’s confession to having committed sariqa or he denies the testimonies of the witnesses. (4) If the stolen good came into the possession of the thief either by way of a gift or inheritance or any other way that transfers the rights of possession (to him). (5) If the thief returns the stolen good before the qāḍī is notified (balāgh). (6) If the thief is forced to take the stolen good by 46 47 48 49 50

Government of the Sudan vs. Burhān Qabr Silāsī and others, sljr (1989). This necessarily includes sariqa ḥaddiya. See Peters, Crime and Punishment, 57. Compare also Layish and Warburg, The Reinstatement, 271. Compare Penal Code of 1983, art. 323. Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:30–32.

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necessity (ḍarūra). (7) If the victim of the theft (al-masrūq minhi) pardons the thief before the notification of the qāḍī. This criminal circular is important, inasmuch as it clearly shows how criminal circulars give guidelines to the judges for the interpretation of the laws; and how the supplementary character of the criminal circular in question demonstrates that criminal circulars are used as quasi-legislative tools to correct the obvious flaws and omissions of the Penal Code of 1983. Two Cases of Necessity (ḍarūra) that Entailed the Remittance of the ḥadd Penalty With regard to the notion of necessity, two judgments of the Supreme Court define what can be assumed as constituting a state of necessity and what cannot. In the first case51 (from 1984), the guest of a hostel in a village in eastern Sudan left his trousers, with 140 Sudanese pounds in the pocket, in the room when he checked out of the hostel. When he returned to the hostel, the money had been taken. Subsequently, the police arrested several suspects and found the money in the bag of one of them. The suspect admitted, in court, that he had stolen the money and was sentenced by the provincial judge to a taʿzīr punishment, on the grounds that he had not eaten breakfast that day and he was unemployed and had no source of income. The Supreme Court did not find the statements of the defendant convincing. After consulting various sources of fiqh and based on contradictions in the statements of the defendant, it concluded that the state of necessity had not been proven convincingly. The documents submitted to the Supreme Court did not present clear and sufficient information on the defendant’s state of unemployment and when and whether he had eaten the day of the crime. The Supreme Court thus decided to uphold the conviction as such, but to nullify the punishment. It ordered the documents to be returned to the provincial court, in order to search for further evidence that might establish the defendant’s state of necessity beyond doubt. The judgment is problematic, as the original conviction under Article 322 (2) calls for a sentence of amputation for ḥadd theft and not the prison term promulgated by the lower court and upheld by the court of appeal. When the court decided that the ḥadd punishment of amputation had lapsed as a result of the reasons given in Criminal Circular 98/1983 (in this case necessity) then the conditions for the ḥadd crime were not fulfilled. Consequently, another article, for example, Article 322 (1) (non-ḥadd theft) should have been applied.52 Second,

51 52

See Government of the Sudan vs. Faḍl Muḥammad Nūr, sljr (1984). Compare with other cases in this section where this rule has been applied.

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the question of whether taking money from trousers found in a hostel constitutes the violation of ḥirz is not even discussed. The mere act of finding money and taking it—in contrast to surreptitiously taking it from a ḥirz with criminal intent—would not fulfill the conditions for ḥadd theft according to the majority of Sunnī schools. Thus, there is no need to search for reasons to have the ḥadd punishment lapse if the conditions for it are not met in the first place. Finally, with respect to the question of necessity, the judgment or, rather the lack of a final judgment in this particular case, shows that Criminal Circular 98/1983 is taken seriously by the Supreme Court. However, the Supreme Court did not accept the mere claim of necessity as sufficient grounds for the remittance of the ḥadd punishment without further and convincing substantiation. In a second case (from 1985),53 the Supreme Court again dealt with the notion of necessity in a case of ḥadd theft.54 The details of this case are as follows: the defendant, a certain Shaʿībū Saʿīd Muḥammad hid in the shop of the plaintiff, that is, the shopkeeper, shortly before closing time. After the shopowner left his shop, the defendant made a hole in the cash register and took 4,993 Sudanese pounds. He then waited until morning and snuck off after the owner reopened his shop; the owner thought that the thief had entered the shop after him. The defendant then concealed the stolen money in his house, where the police found it. On the strength of the facts, the provincial court of al-Qaḍārif convicted the thief under Article 322 (2) (ḥadd theft) and sentenced him to the amputation of the right hand. The case was appealed and referred to the Supreme Court via the court of appeal in Kassala. The convicted thief appealed on the grounds that he was a carpenter who owned a workshop and that the tools necessary to earn his livelihood had been stolen from him. In consequence of his plight, he had to divorce his wife because he was unable to provide for her. He further brought evidence that he was responsible for five sisters and brothers who were still in school, and a father unable to move and therefore earn a living. In its review the Supreme Court remarked that the defendant had not cited any of the above-mentioned arguments as evidence during the proceedings of the court of first instance, nor had he offered any proof. On the other hand, the court of first instance had not inquired about any circumstances that would have caused the ḥadd penalty to lapse. The first court had not applied 53

54

The case fell under the authority of the Transitional Military Council under Siwār alDhahab. Under al-Dhahab, those convicted under the September laws remained in prison. People continued to be sentenced to ḥadd penalties, such as single and cross-amputations, but the executions of those penalties were suspended. See Köndgen, Das Islamisierte, 61. See Government of the Sudan vs. Shaʿībū Saʿīd Muḥammad, sljr (1986).

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Article 170 of the Code of Criminal Procedure, which gives the defendant the right and the opportunity to produce witnesses in his favor. After reviewing the conditions proposed by the fuqahāʾ with respect to the state of necessity and its impact on criminal responsibility and the ensuing penalty, the Supreme Court concluded that the defendant had not asserted his claim of necessity convincingly. Even if he had established a state of necessity, the court argues that this would not justify his deed, nor would it nullify the punishment on him, because, according to the fiqh, the punishment is only removed in cases of the theft of food or drink and if what is stolen is no more than what is necessary to satisfy the need. In other words, the Supreme Court deemed that all the conditions for sariqa ḥaddiyya had been met. Nevertheless, despite the fulfillment of all conditions, the Supreme Court found a loophole to avoid amputation. Quoting ʿAbd al-Qādir ʿAwda, it states that a thief who is not in a state of necessity (ghayr muḍṭarr) should be punished with a taʿzīr punishment only in a year of famine. Thus, the thief’s hand should not be amputated if he does not find anything (that is, food or drinks) to buy or he does not find the necessary means to buy it with.55 In order to establish that the theft had been committed in a year of famine, the Supreme Court quoted the head of state during the time in question, Siwār al-Dhahab (president of the Transitional Military Council), who had announced in April 1985 that the Sudan was suffering from a famine. Consequently, the Supreme Court reasoned that the famine at the time of the theft can be accepted as common knowledge (ʿilm ʿāmm), and therefore judicial knowledge (ʿilm qaḍāʾī), such that no further proof was needed. Further, the court argued that the crime had happened six months after that announcement and that at the time of the review in the Supreme Court, the state of Sudan had not announced that the state of famine had indeed ended. In conclusion, the Supreme Court overturned the penalty of amputation and ordered the court of first instance to promulgate a taʿzīr penalty, after giving the defendant an opportunity to explain his specific circumstances further. This surprisingly lenient judgment seems rather far-fetched in terms of its fiqh-based justification. While someone who steals food and/or drinks must limit his theft to what he needs to survive, the culprit in this particular case stole several thousand Sudanese pounds. It can hardly be argued that he committed the theft to buy the edibles necessary to secure his physical survival. However, in this case survival could be understood in a different sense. The thief had told the court that his tools, necessary to earn a living, had been

55

ʿAwda, al-Tashrīʿ, 2:610.

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stolen from him, the absence of these tools were the root cause of his plight, and that he had tried to find the money to buy new tools. In other words, the fact that the culprit stole far more than he needed to buy food can only be justified if survival is understood as long-term survival, to secure one’s livelihood. The Supreme Court did not delve into this in its justification and was silent as to the rather high amount of money stolen. It should be noted here that this rather lenient judgment took place in specific political circumstances. The introductory phase—September 1983 until the deposition of Numayrī—had seen the majority of all ḥadd punishments ever executed in the Sudan. The frequency of these and the underlying political motivation met with substantial criticism in the country. Thus, under the Transitionary Military Council, the frequency of ḥadd punishment had already started to subside. It is thus not unlikely that the Supreme Court’s decision was influenced by the political atmosphere in the Sudan in the years 1985–1986. New Reasons to Remit the ḥadd Penalty for Theft In another case56 the Supreme Court decided to remit the ḥadd penalty for ḥadd theft and thus, through its case law it expanded on the list of reasons for remittal proposed in Article 323 of the Penal Code of 1983 and in Criminal Circular 98/1983. The facts of the case can be summarized as follows: three young thieves had climbed over the outer wall of the plaintiff’s shop, broken the inner door, smashed the strongbox, and stole its contents, the value of which exceeded the niṣāb by far. They confessed to their crime in a court session. Two of the defendants were fifteen and sixteen years of age and thus were deemed underage;57 both were convicted under Article 67 of the Penal Code of 1983, to detention in a reformatory for five years. The third defendant was convicted and sentenced to amputation of the right hand, since he was considered to be of age. The court also ordered that the stolen goods be returned. After the third defendant appealed his conviction, it was established (medically) that he was twenty years old and not seventeen as he had claimed before. In other words, it was not possible to deem him a minor and thus cause the ḥadd penalty to lapse. However, an analogy to other similar cases was found in the fiqh. Thus, Mālik and al-Shāfiʿī hold that in cases of joint ḥadd theft only the adult thief will be punished with the amputation of his hand, the minor accomplice will not. Abū Ḥanīfa, by contrast, states that the ḥadd penalty on the adult 56 57

Government of the Sudan vs. al-Sirr Mīrghanī Khalīfa and others, sljr (1986). The Supreme Court decision does not give any further information on whether they underwent a medical examination to determine if they showed physical signs of adulthood.

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thief must lapse because it lapses on his underage associate. Even though the court cannot decide which of the two different opinions is legally more sound, a legal uncertainty is established. On the basis of this legal uncertainty and the well-known ḥadīth “avert the fixed penalties with legal uncertainties” the court decided to avert the ḥadd penalty sentence on the third defendant by the court of first instance and to commute his sentence, under Article 322 (1) to 30 lashes, a fine of thirty Sudanese pounds, and a prison term of two and a half months. Regarding the two minor defendants, the Supreme Court granted their immediate release, since Article 67 of the Penal Code of 1983 stipulates time in a reformatory for underage recidivists and these two minors were firsttime offenders. Punishment of ḥadd Theft in the Sudanese Penal Codes since 1983 The Penal Code of 1983 stipulates that whoever commits sariqa ḥaddiyya is punished by amputation (qaṭʿ), but it does not further specify which limb is to be amputated, which side of the limb, or what should happen to repeat offenders—someone convicted for the same crime a second, or even a third time.58 Successor codes became more specific. The draft Criminal Bill of 1988 specifies that the hand is to be amputated from the joint and in the Criminal Act of 1991, ḥadd theft is punished with the amputation of the right hand.59 Whoever is convicted for sariqa ḥaddiyya a second time is to receive a minimum prison term of seven years in both codes.60 The Criminal Act of 1991 thus opted to mitigate the severe consequences for recidivists of ḥadd theft as provided for in the fiqh. At the same time, it substantially improved on the rather imprecise wording of the Penal Code of 1983. As mentioned, Article 321 (1) did not specify which limb was to be amputated,61 nor did it formulate a provision to punish recidivists. The judge thus had little choice but to punish each sariqa ḥaddiyya with the amputation of a limb.62 Both codes cannot, however, escape the inherent imbalance between the severe punishment of amputation for theft, if it fulfulls the conditions of a ḥadd crime, and by comparison, the rather lenient punishments of other related crimes. For example, extortion by death threat was punishable with a prison term of up to seven years, accord-

58 59 60 61 62

See Penal Code of 1983, art. 321. Art. 171 (1). Criminal Act of 1991, art. 171 (1) and (2). The Qurʾān (5:38) does not specify whether the right or the left hand is to be cut off. See also Heffening, “Sariḳa,” 9:62. Scholz, “Die koranischen Delikte,” 450.

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ing to the Penal Code of 1974.63 In 1983, this punishment was replaced by the ubiquitous formula “will be punished by flogging and fine and a prison term.” Another example is robbery (nahb), which, according to the Criminal Act of 1991, is a combination of theft by criminal force or threat thereof and is punishable by a maximum prison term of three years.64 Punishment of the Accomplice One of the problems pertaining to ḥadd theft is the question of the co-perpetrators, and to what extent they are guilty and punishable. The Penal Code of 1983, which was, for the most part, a faithful copy of its 1974 predecessor, stipulates in Article 78: “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” In other words, the general principle of the Penal Code of 1983 is that it makes little distinction between those who committed the various elements of the act and their effect on the ensuing criminal liability. Such reasoning is not compatible with the fiqh with regard to ḥadd theft. In the deliberations of the fuqahāʾ the issue of who committed the act is extremely important, precisely because it has a decisive influence on the criminal liability of each culprit. A 1990 decision of the Supreme Court delineates the intricacies of this problem with regard to ḥadd theft.65 In September 1986, a court in Atbara sentenced the defendant Khalafallāh ʿAbd al-Laṭīf ʿAbdallāh to a prison term of five years and a fine of one thousand Sudanese pounds under Article 322 (1) (theft from residential premises) in conjunction with Article 458 (3), which allowed for a taʿzīr penalty, even without a clear stipulation, for cases in which the ḥadd was averted by a legal uncertainty. In the same trial a second defendant, a certain Yūsuf ʿAbdallāh Sālim, was sentenced under Article 322 (2) (ḥadd theft from residential premises) to amputation of the right hand from the wrist. The case can be summarized as follows: on 10 July 1986, at night, both defendants broke into the shop of the

63 64

65

Penal Code of 1983, art. 329. Criminal Act of 1991, art. 175. In addition, the article defines robbery as ḥadd theft with the use of criminal force or threat. Logically, if ḥadd theft is involved, robbery should be punished accordingly, that is, with the amputation of the right hand. Article 175, however, is worded ambiguously, and only talks of “… any other prescribed penalty for what results from this act.” The article further specifies, surprisingly, that if robbery amounts to ḥadd theft, it will be punished accordingly. Article 175 thus combines ḥadd theft with robbery, disregarding the differences between the two. See Government of the Sudan vs. Khalfallāh ʿAbd al-Laṭīf and others, sljr (1990).

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plaintiff by opening a hole in the shop’s roof, through which the second defendant entered and exited, after stealing a certain amount of money and two packs of cigarettes. The second defendant, ʿAbdallāh Sālim was caught the same day; the amount of money in question and the cigarettes were found in his possession. He confessed to the theft as such and upheld his confession throughout all stages of the trial. In its review the Supreme Court judges considered the conviction of the second defendant under Article 322 (2) to be incorrect. It reasoned that the crime that was committed rather fell under Article 395 of the Penal Code of 1983, which deals with “lurking house-trespass or house-breaking by night.” This decision was made on the grounds that the conviction had relied on the unretracted confession of the second defendant, according to which he had helped his accomplice to make the hole in the roof of the shop, but he (the second defendant) maintained that he had not entered it. Instead, he blamed his accomplice, who had received a prison term as punishment for entering the shop and taking the money. The Supreme Court accepted the account and decided that the second defendant, ʿAbdallāh Sālim, could not be convicted and sentenced to amputation because he had not entered the ḥirz and had not cooperated in taking the stolen money from it. According to the fiqh,66 there is agreement that in a case of ḥadd theft the accomplice should only be sentenced to amputation if he helped to take the stolen property from the ḥirz. If the help of the accomplice consisted of something else, such as breaking the door or opening it with a counterfeit key, or breaking the walls in order to enter the ḥirz or help in carrying the stolen property after it had been taken from the ḥirz, then the accomplice is not liable to amputation on the grounds of a legal uncertainty (shubha), rather he is liable for a taʿzīr penalty. In application of these rules, the Supreme Court changed the conviction of the second defendant, charged him under Article 395 of the Penal Code of 1983, and sentenced him to a lifelong prison term in conjunction with banishment as a punishment. This final judgment aptly illustrates the various problems posed by the introduction of fiqh elements into the Sudanese penal code. For example, Article 395 of the Penal Code of 1983 belongs to the set of articles which, in the Penal Code of 1974 came under the title “Of Criminal Trespass,” which was a regrouping of a variety of crimes related to trespassing and the punishment of these crimes with prison terms that correspond to the weight of the crime and/or fine. Basically, as in most other cases, the Penal Code of 1983 simply copied these articles but, as a token of Islamization, it replaced the old punishments with new ones taken from Islamic criminal law. Thus, Article 395 of

66

The Supreme Court judges quote ʿAwda, al-Tashrīʿ, 2:251.

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the Penal Code of 1974 punished “whoever commits lurking house-trespass by night or house-breaking by night” moderately, with a prison term of up to three years and possibly with a fine. As in the cases described above, in 1983 the Sudanese legislators added extremely harsh punishments, such that the same crime would be punished with capital punishment or cross-amputation or a life sentence with banishment. In other words, it punishes a taʿzīr crime as if it were a ḥadd crime and thus disregards the definitions of the fuqahāʾ. With regard to the case outlined above, the Supreme Court judge meticulously applied the rules of proof for ḥadd theft and correctly reached the conclusion that the amputation must lapse because of a legal uncertainty. The judge subsequently chose another article whose wording was closer to the crime in question. Paradoxically, the article he chose, Article 395, is also punishable with two different ḥadd punishments—capital punishment and cross amputation—and harsher punishments than the one these culprits were originally sentenced to. In order to avoid a more severe punishment than the original amputation, the judge was forced to impose a life sentence with banishment. However, Article 395 offers a range of punishments, ostensibly applicable according to the circumstances of the case. Apart from the necessity of finding a non-ḥadd punishment, the judge does not explain how the severity of the crime justifies the life sentence with banishment. We might also dispute whether a life sentence with banishment is a “lighter” punishment than amputation. Moreover, it remains unclear why only one of the two defendants was judged under Article 395 and not both, since there were no witnesses and the individual degree of participation in the crime of each defendant could not be established beyond doubt. According to Article 239 of the Criminal Procedure Act of 1983, the Supreme Court and the court of appeal had the right to review any decision of a lower court and correct it when it contradicts the sharīʿa. In this particular case, the review process clearly only concerned the second defendant, who was sentenced to amputation. However, by causing the ḥadd penalty to lapse, the punishment of the first defendant and the article under which he was sentenced should have been revised as well. By analogy, a moderate prison term like that given to the first defendant would have been possible in accordance with Article 458 (3) of the Penal Code of 1983, which was invoked in the judgment itself, and with Criminal Circular 98/1983.67

67

See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:30–32, art. 458 (3) gives the judge a lot of latitude. It reads “If the ḥadd is averted by a legal uncertainty, the imposition of any other taʿzīr punishment is allowed even if it is not explicitly stipulated in this law …”

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Ḥadd Theft in the Criminal Bill of 1988 and the Criminal Act of 1991 Though it was never adopted by the Sudanese parliament, the Criminal Bill of 1988 served as a kind of test run and in 1991 it became—in a slightly modified version and taking into account criticism about its lack of faithfulness to the sharīʿa68—the new criminal act.69 The text of Article 170 of the Criminal Act of 1991 reads: “Whoever covertly takes, with the intention of appropriation, any moveable property belonging to another, provided that the property is taken out of its ḥirz and is of a value not less than the niṣāb, shall be deemed to have committed the offense of ḥadd theft.” The Criminal Act of 1991 was meant to remedy most of the flagrant flaws of the Penal Code of 1983 and thus offer a vast improvement over its immediate predecessor.70 While in 1983 the stolen property had to be taken with ill intent (bi-sūʾ qaṣdin), in the Criminal Bill of 1988/Criminal Act of 1991 the wording was changed to “with the intention of appropriation”; it has thus become more precise and closer to the fiqh. Most importantly, the two codes introduced the notion of ḥirz, which was conspicuously absent in the Penal Code of 1983. It provides a definition of ḥirz that covers both the ḥirz bi-l-makān and the ḥirz bi-l-ḥāfiẓ.71 While the notion that the theft must be committed covertly, was absent in the Criminal Bill of 1988, it was introduced into the definition of sariqa ḥaddiyya in the Criminal Act of 1991. The definition of surreptitiousness,72 however, now includes covertly violating the ḥirz and the seizure of property overtly (akhdh al-māl mujāhiratan) or forcibly (mughālibatan). These notions do not fall under the meaning of “covertly” as defined in the fiqh.73 In the fiqh the entire theft must be carried out in a surreptitious manner, not only the violation of the ḥirz. Both codes further introduce a provision to the effect that “property belonging to another includes public property, property of religious endowments (awqāf ), and places of worship.”74 In the case of public property, the two codes

68 69 70 71 72 73 74

Compare, for example, Criminal Bill of 1988, art. 173 (1–5), and Criminal Act of 1991, art. 170 (1–6). Also see Scholz, “Die koranischen Delikte,” 436–437. To my knowledge, no criminal procedure act or evidence act was prepared by this committee in 1988. Concerning the intentions of its authors, I consulted a memo accompanying the Criminal Act of 1991, of which I have a photocopy. Criminal Bill of 1988, art. 173 (1) and (3); Penal Code of 1983, art. 170 (1) and (4). Criminal Act of 1991, art. 170 (2). Compare El Baradie, Gottes-Recht und Menschen-Recht, 112. Criminal Bill of 1988, art. 173 (2); Criminal Act of 1991, art. 170 (3).

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codified a minority opinion of the Mālikīs (see above). As to the property of places of worship, the Criminal Act of 1991 also adopts the opinion of the Mālikīs who hold that the mosque must be considered a ḥirz because it has a door and therefore anyone who steals mosque property (such as candles, mats, and carpets) is liable to amputation if the niṣāb is reached.75 The niṣāb is now in concordance with the teachings of the Ḥanafīs, who set it at one gold dinar of 4.25 grams, or its equivalent in currency.76 A Supreme Court Case Defining ḥirz Concerning the meaning of ḥirz, an important case can be found in the Sudan Law Journal and Reports.77 On 9 August 1991, two defendants entered an uninhabited government-owned building in New Halfa and stole a double bed, a closet, and other household items. Following the theft, they sold or gave the stolen goods to three different persons, who all were indicted under Article 181 of the Criminal Act of 1991 for having received stolen property. In the first decision, the trial court in New Halfa convicted the two defendants under Articles 21 (criminal joint acts in execution of criminal conspiracy) and 174 (2) (punishment for non-ḥadd theft). At the court of appeal in Kassala the decision of the lower court was overturned and the case was sent back for revision in order to reach a conviction for joint ḥadd theft, since, in the opinion of the court of appeal the case met all the conditions of sariqa ḥaddiyya. The appeal court remarked that in the definition of ḥirz in Article 170 (4), the legislators stipulated that a ḥirz is to be understood as a ḥirz al-makān (that is, a safe place), “where property is kept or the manner in which the particular property or similar types thereof are normally kept, or according to the custom of the people of the country or the particular profession.” In other words, so the court reasons, the ḥirz bi-l-makān, which is normally a secure room in a more general sense, is more specifically defined here as a ḥirz al-mithl or a safe place where a particular good or property is normally kept, for example, money inside a room

75

76 77

Al-Jazīrī, al-Fiqh, 5:147. The Ḥānafīs do not consider a mosque to be a ḥirz and therefore do not deem the stealing of candles, mats, and the like to constitute sariqa ḥaddiyya. The Shāfiʿī position falls between that of the Ḥānafīs and Mālikīs; they distinguish between certain goods (such as the mosque’s door, (unlit) candles), for the stealing of which amputation is due and other goods (such as prayer mats to be used or lit candles) that are for the benefit of Muslims and to which every Muslim has a right (of co-ownership), analogous to his right in public property ( falahu ḥaqq kamāl bayt al-māl). Its countervalue in money is established by the Sudanese chief justice and announced by way of a judicial circular. See Government of the Sudan vs Antūniū Sharīk Kūnj and others, sljr (1992).

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and a riding animal inside a stable.78 However, Article 170 (4) also says: “… and property shall be deemed to be in a ḥirz whenever it is guarded.” This passage is not meant as a limitation or an interpretation of the meaning of al-ḥirz bi-lmakān, as stated in the beginning of the article. Rather it is to be understood as a supplemental meaning. Therefore, the court of appeal tells us that it is not possible to understand the text—as the lower court did, whose decision it is correcting—to mean that property must be guarded (maḥrūs) in order to be deemed to be in a ḥirz. Put differently, all guarded property (māl maḥrūs) is to be considered in a ḥirz, even if it is not in a ḥirz bi-l-makān. And the reverse is also true: if all the conditions of ḥirz bi-l-makān are fulfilled, the property does not have to be guarded to be considered to be in a ḥirz. After the retrial in the lower court, both defendants were sentenced to amputation of the right hand from the wrist for ḥadd theft under Article 171(1) of the Criminal Act of 1991 on the strength of their confessions. The Supreme Court raised two pivotal questions in its review. The first concerns the establishment of the niṣāb and, the second concerns the nature of the ḥirz. The New Halfa prosecution estimated the value of the stolen goods to be 11,985 Sudanese pounds, and supported this figure with invoices and declarations from shops selling similar goods. Importantly, the two defendants did not confess to the value of the stolen property and the trial court acquitted those who had either bought or otherwise received the stolen goods, while it convicted the two main defendants for non-ḥadd theft. Interestingly, the Supreme Court reasoned that the confession of the two defendants, while it is considered a vital element for a conviction for ḥadd theft, was deficient in this particular case because the defendants did not admit to stealing goods that reached or exceeded the niṣāb. Moreover, they did not, as they expressed in their confession, even understand this value, “… and normally the thief does not understand the value of the property he is stealing, unless the stolen property is equivalent to money he can calculate and compute.” The judge further supported his reasoning by quoting a ḥirāba case from 1986 in which the Supreme Court decided that the ḥadd penalty could not be imposed if the defendants did not confess that the value of the 78

In the Ḥanafī school, the nature of the ḥirz is controversial. Some believe that a ḥirz must be the safe place normally used for the good in question. Thus, a house is a ḥirz for money and jewelry, a fenced area is a ḥirz for sheep, and a stable is a ḥirz for riding animals. A second opinion among the Ḥanafīs holds that a ḥirz can serve as such for all kinds of property, for example, while a stable is obviously a ḥirz for riding animals, it can also serve as a ḥirz for money and jewelry. See ʿAwda, al-Tashrīʿ, 2:579–580. Compare also Bahnasī, al-Mawsūʿa, 2:149–164 on ḥirz, and Bahnasī, al-Jarāʾim, 20–34.

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stolen goods was equivalent to or higher than the niṣāb.79 The Supreme Court also rejected the validity of the invoices and other documents produced by the prosecution—and which had been accepted by the court of appeal. None of these documents and invoices had been assessed by two witnesses of good reputation under oath and acting as assessors (muthammin). It would have been the task of the prosecution to employ such experts in order to produce such indirect evidence. Further, it would have been imperative to take into account the price of those goods at the date they were bought and not their value when they were stolen. This is significant because the original selling price was moderate and, at the time, did not exceed the niṣāb, according to the judge’s reckoning.80 In other words, the Supreme Court interpreted the nature of the confession in a way that makes it compulsory for the defendant(s) to not only confess to ḥadd theft in general but also to confess to having knowledge that the value of the stolen property reached the niṣāb. Whether each single element of ḥadd theft as defined by the fuqahāʾ must be part of the confession remains unclear. For example, the judgment does not mention whether the thieves confessed to knowingly stealing from a ḥirz. Rather, the Supreme Court seems to have reached its conclusions with regard to the ḥirz by assessing the facts without further corroboration of the confession. Thus, in order to prove sariqa ḥaddiyya, the prosecution is not only bound to prove all necessary elements, such as surreptitiousness, criminal intention, the movability of the good, the presence of the stolen property in a ḥirz etc., but the culprit must also confess that he knew and was aware, during the execution of the crime, that the value of the stolen property reached or exceeded the minimum value (niṣāb) for ḥadd theft. The lower court, in the justification of its judgment, concluded that the condition of ḥirz according to Article 170 (4) had not been fulfilled, because the government premises in question were not inhabited and thus had not been guarded. The Supreme Court, however, reasoned otherwise and saw the ḥirz as firmly established. The culprits confessed that they had entered a closed government building after climbing a wall, opening the outer door with a screwdriver, unbolting a second door, and finally taking the stolen property out of a room. The Supreme Court thus followed the opinion of the appeal court

79 80

See Government of the Sudan vs. Isḥaq Muḥammad Arbāb and others, sljr (1986). The latter assumption seems to contradict the Supreme Court’s own reasoning, since it categorically excluded the knowledge of the judge, that is, what he saw, heard, deduced, or believed, to determine the value of the stolen good.

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in the question of the ḥirz, while pointing out that the two defendants had not confessed to a vital element in the constitution of ḥadd theft. It therefore returned the case to the trial court in order to impose a taʿzīr punishment under Article 174(2) for non-ḥadd theft. Legal Uncertainties and the Lapsing of the ḥadd in the Criminal Bill of 1988 and in the Criminal Act of 1991 The wording of the Criminal Bill of 1988 and the Criminal Act of 1991 with regard to reasons for remitting the ḥadd for sariqa is almost identical: Theft between spouses, ascendants, and descendants and those relatives who cannot marry does not fall into the ḥadd category.81 One who “is in a case of necessity (ḍarūra) and does not take from a property more than what is sufficient to satisfy his need or the needs of his dependents … and not exceeding the minimum (niṣāb)”82 cannot be punished with amputation. Where “the offender has, or believes in good faith to have, a share in stolen property, and such stolen property does not exceed that share with what amounts to the niṣāb the ḥadd penalty is remitted.”83 The same is true for cases in which the offender has an unsatisfied debt [owed] by the victim of the theft and the victim is unwilling to pay, or is dilatory, and the debt is due before the theft and the amount of money stolen by the offender is equal to or more than his debt by no more than the niṣāb.84 The ḥadd penalty is also remitted in cases in which the offender returns to the victim the allegedly stolen property before he is brought to trial and he repents or becomes the owner of the alleged property in question and, in addition to that, he has not been accused previously or convicted of offenses against property.85 A retraction of the offender’s confession before the execution of the penalty entails the remittance of the ḥadd if the theft was proven by confession only.86 Finally, the ḥadd penalty also lapses if the offender is permitted to enter

81 82 83 84 85

86

Compare the Criminal Bill of 1988, art. 175 (1) (a) and Criminal Act of 1991, art. 172 (a). Criminal Bill of 1988, art. 172, art. 175 (1) (b). Compare the Criminal Bill of 1988, art. 175 (c) and Criminal Act of 1991, art. 172 (c). Criminal Bill of 1988, art. 175 (d) and Criminal Act of 1991, art. 172 (d). Compare the Criminal Bill of 1988, art. 175 (e), and the Criminal Act of 1991, art. 172 (e). Note that the Criminal Bill of 1988 was more lenient with regard to restitution. In 1988, the ḥadd was remitted when the offender restored the stolen property before conviction. Compare Criminal Bill of 1988, art. 175 (f), and Criminal Act of 1991, art. 172 (f).

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the ḥirz or when the amputation threatens the life of the offender, or if his left hand is amputated or paralyzed.87 While it is rather extensive, this list of legal uncertainties either diverges from the fiqh or does not make use of the legal uncertainties that are available. Most significantly, stolen property (in the sense of Article 170) includes, for reasons of political expedience, public property, awqāf property, and places of worship. With regard to public property, the majority of the fuqahāʾ hold that stealing it does not entail amputation. Therefore, stealing public property could easily have been construed as a shubha. Instead, Article 170 follows the strictest opinion, namely, that of the Mālikīs, who hold that amputation is due for the stealing of public property (provided the other conditions that make up sariqa ḥaddiyya are fulfilled). The dominant opinion of the fuqahāʾ states that the ḥadd penalty for sariqa lapses even if the creditor (i.e., the thief) takes property surpassing the amount of the debt and regardless of whether the debt was due or not. By contrast, Article 172 (d) of the Criminal Act of 1991 allows for the lapsing of the ḥadd penalty only if a creditor steals from his debtor after the debt is due. Other legal uncertainties found in the fiqh were not taken into consideration. Ḥanafīs and Ḥanbalīs teach that the ḥadd punishment lapses for a group of offenders who conjointly steal from someone who is closely related to one of the thieves. The Ḥanafīs even hold that the punishment lapses if a minor or a mentally ill person is one of the group.88 More importantly, according to all the schools, the total value of the stolen property must reach the niṣāb for each of the thieves individually.89 However, the Criminal Act of 1991 stipulates that if the total value of the stolen property equals the niṣāb, then the ḥadd penalty is due.90 Furthermore, in the Penal Code of 1983 and the Criminal Act of 1991, the general provisions about joint criminal acts provide for equal punishment of each of the offenders.91 Other points are discussed in the fiqh, but omitted in the Criminal Act of 1991. Thus, it must be possible to own the stolen good92 and—according to the Ḥanafīs—it must be storable. The stealing of

87 88 89 90 91 92

See Criminal Bill of 1988, art. 175 (g), (h), and Criminal Act of 1991, art. 172 (g) and (h). El Baradie, Gottes-Recht und Menschen-Recht, 115. Heffening, “Sariḳa,” 9:63 and Scholz, “Die koranischen Delikte,” 450. Art. 170 (6). See Penal Code of 1983, art. 80, and the Criminal Act of 1991, art. 21. Compare Scholz, “Die koranischen Delikte,” 450. Kidnapping a free person does not entail the ḥadd penalty because free people cannot be owned. The stealing of goods which Muslims are not allowed to own in the first place (for example, wine or pork), also does not entail the ḥadd punishment. However, stealing the

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non-storable items, even if their value surpasses the niṣāb, does not result in the ḥadd punishment.93 If the ḥadd penalty is remitted, the offender can be punished with a prison term of up to seven years and a fine and flogging of up to 100 lashes.94 Measuring the niṣāb with Respect to Collective Theft Finally, both codes introduce a new provision clarifying the case of a group of thieves that steal collectively; in order to establish the niṣāb, the sum total of the stolen property is taken into account, not the value of what each individual thief has taken.95 The fuqahāʾ agree that if each thief violated the ḥirz and all other conditions of sariqa ḥaddiyya are fulfilled and if each of them stole what amounts to the niṣāb for each individual thief, then all of them will be subject to amputation.96 However, in a case in which the niṣāb is only reached by the group of thieves collectively, Islamic jurisprudents differ. The Ḥanafīs and the Shāfiʿīs hold that each thief must be judged according to his individual guilt and since the individual thief did not reach the niṣāb, the conditions for amputation are not met. The Mālikīs are of the opinion that amputation is due if the thieves had to cooperate in the theft. If the theft was possible for each one of them (without the cooperation of the others) opinions differ. The first opinion maintains that they should all be amputated, while the second opinion holds that if each of the thieves took part of the booty, none of them should be amputated unless that part reached the niṣāb. The Ḥanbalīs, finally, advocate the amputation of a hand from each of the thieves, even if the niṣāb is only reached collectively, in order to protect the society against criminal gangs. In other words, Sudanese legislators chose to codify a minority opinion based on the Ḥanbalīs and to some degree on the Mālikīs.97 It goes without

93 94 95 96 97

same goods from a non-Muslim can amount to sariqa. See Peters, Crime and Punishment, chapter 2.6.2 and El Baradie, Gottes-Recht und Menschen-Recht, 110. Peters, Crime and Punishment, chapter 2.6.2 and El Baradie, Gottes-Recht und MenschenRecht, 110. Criminal Act of 1991, art. 173. Criminal Bill of 1988, art. 173 (5), and Criminal Act of 1991, art. 170 (6). For the opinions of the four Sunnī schools on joint theft, see al-Jazīrī, al-Fiqh, 5:151–152 and ʿAbd al-ʿAzīz, al-Fiqh, 368–370. Some western authors simply quote the “herrschende Lehre,” thus, perhaps involuntarily, giving the impression that a certain provision has no basis in the fiqh. However, whether or not a certain prescription is derived from the fiqh can only be said with certainty when the majority and minority opinions of all (Sunnī) schools are shown in a synopsis. To illustrate my point, compare the above with Scholz, “Die koranischen Delikte,” 450.

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saying that reaching the niṣāb and convicting people for sariqa ḥaddiya is thus greatly facilitated. This not only runs contrary to the principle of restricting the application of the ḥadd punishments, but it also simply applies the provisions on “criminal joint acts in execution of criminal conspiracy” which provide for joint responsibility and therefore an equal punishment for all who partake in the act.98

∵ In summary, the Penal Code of 1983 included offenses related to theft and punishable by amputation which, according to the classical fuqahāʾ, do not amount to sariqa.99 By creating a class of new ḥadd crimes, the penal code— as in other instances100—considerably expanded the potential applicability of ḥadd punishments. At the same time, in its definition of the crime the penal code omitted important notions of sariqa ḥaddiyya and only admitted a small number of legal uncertainties as grounds for the lapsing of the punishment. In comparison, the Criminal Act of 1991 was an improvement, in the sense that it faithfully reflected the majority opinions of the fuqahāʾ and the spirit of the fiqh. In its definition, it introduces the important notions of surreptitiousness and ḥirz, which are pivotal elements in the classical definition. It has further largely augmented the number of recognized legal uncertainties that cause the ḥadd penalty for sariqa to lapse. However, in two important provisions, the code conflicts with the fiqh. It does not call for a second amputation for recidivist offenders and, of larger consequence, it explicitly makes theft of public property punishable by amputation if all the prerequisites are fulfilled. While the former, most likely, is of little practical importance, the latter, for reasons of political expediency, substantially widens the definitions of theft punishable by amputation. Further, the meaning of surreptitiousness as defined in the Criminal Act of 1991 is restricted to the violation of the ḥirz, while in the fiqh the entire theft must be carried out covertly. Thus, the applicability of ḥadd

98

99

100

See Penal Code of 1983, art. 80, Criminal Bill of 1988, art. 21, and Criminal Act of 1991, art. 21. Generally speaking, in the fiqh people are punished for their own acts, except in special cases; for example, in the qasāma procedure, collective punishment is not allowed. Compare Peters, Crime and Punishment, 20. Art. 324 provides for amputation of a limb of whoever commits a theft, with preparation for the killing, hurting or kidnapping of the victim. See Köndgen, Das Islamisierte, 115, art. 4.1. Art. 318 allows for the death penalty and crucifixion or cross-amputation of brothel proprietors or souteneurs caught a second time. See ibid., 106.

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theft is widened. The provision that establishes, in cases of collective theft, that the niṣāb is the total of the stolen property is also inconsistent with the majority opinion in the fiqh. In other words, by codifying a minority opinion—of the Mālikīs—the establishment of the niṣāb in cases of joint theft is considerably facilitated. In a landmark decision, the Supreme Court resolved several questions as to the establishment of the niṣāb and the nature of ḥirz. It decided that invoices as such, without further testimony by experts, were not admissible in proving that the niṣāb has been reached. However, if experts confirm that the stolen amount reached or exceeded the niṣāb, such indirect evidence is admissible. Second, the defendant(s) must admit to having knowledge that they stole an amount equivalent or higher than the niṣāb. The ḥadd penalty can only be imposed if the culprits admit to knowing, at the time of the theft, that they were stealing an amount that reached the niṣāb. With respect to the notion of ḥirz, the same decision rectified a lower court’s misreading of Article 170 (4). It stated that property does not necessarily have to be guarded in order to be in a ḥirz. Thus, even an uninhabited building can be deemed to constitute a ḥirz. With regard to proof, the relevant laws of 1983 and 1991 did not specify the important notion of “good reputation” for witnesses in ḥadd cases. However, a criminal circular clarified that a witness is assumed to be of good reputation unless there are indications that contradict this assumption. In effect, the court does not bear the burden of gathering information about the righteousness of a witness in ḥadd cases. The admission of women and non-Muslims as witnesses in cases of ḥadd theft is not supported by scholars of the four Sunnī schools. This expansion of the pool of witnesses strongly enhances the likelihood that ḥadd theft can be proven, even though a missing male witness must be replaced by two women. The admission of non-Muslim witnesses has a special relevance in the particular ethnic structure of Sudanese society. Clearly, Sudanese legislators feared that in cases in which only non-Muslims were concerned or the witnesses were non-Muslims, ḥadd theft would regularly go unpunished. The Supreme Court further ruled that a ḥadd penalty cannot be imposed if the aggrieved party either does not institute legal proceedings against the defendant or if he or she is not present during the trial. However, the prosecution of the crime as such is deemed to be in the public interest and in such cases a taʿzīr punishment is due. Public interest also takes precedence over a private settlement. A private settlement (ṣulḥ) between a plaintiff and a defendant does not exempt the latter from punishment, since cases of sariqa and cases related to it are deemed to harm the public interest. The Criminal Act of 1991 only partially managed to improve the provisions with respect to the punishment of ḥadd theft. While recidivists are now spared a second amputation—in contradiction to the majority opinion of the

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fuqahāʾ—the law also suppressed most if not all of the newly created ḥadd crimes proposed in the Penal Code of 1983. These were diametrically opposed to the spirit of the fiqh and the limited number of ḥadd crimes recognized by Islamic jurisprudence. However, a gross imbalance between the severe punishment of ḥadd theft and related non-ḥadd crimes, especially in relation to sariqa, also remained in the Criminal Act of 1991. These contradictions led to serious inconsistencies in the emerging body of Supreme Court case law, especially in the period prior to the introduction of the Criminal Act of 1991. Since the Penal Code of 1983 provided judges with only a very limited list of reasons for remitting the ḥadd penalty, a subsequent criminal circular supplemented this list. Next to the criminal circulars Supreme Court decisions filled other gaps. Thus, the Supreme Court concluded that a state of necessity can be invoked in years of famine even if the stolen goods far exceed what is needed to satisfy one’s immediate needs. In a case of joint theft, the Supreme Court decided that the ḥadd lapsed for all offenders if one of the group is a minor and thus not criminally responsible. Most of the reasons for remitting the ḥadd in cases of ḥadd theft that had been regulated earlier by criminal circulars found their way into the Criminal Act of 1991. Thus, we have a correction to the above-mentioned Supreme Court decision: a case of necessity can now only serve as a reason for the lapsing of the ḥadd, if what is stolen is not more than what is necessary to satisfy one’s needs. While the Criminal Act of 1991 introduced a wider list of reasons for the lapsing of the ḥadd, the shubhat al-milk of stealing public property is not among them. Most probably for reasons of upholding public security and order, the stealing of public property can entail amputation if all conditions of ḥadd theft are otherwise met. This synopsis of case law and legislation concerning the crime of ḥadd theft as it had developed as of 1983 highlights an often-contradictory array of laws and Supreme Court decisions. The selection of provisions derived from Islamic jurisprudence is highly diverse. At times a majority opinion is codified, at times a minority opinion among the four Sunnī schools of law, and in one case even opinions of non-Sunnī schools are codified. While after 1983 case law and criminal circulars served to supplement a deficient body of legislation, many of the flaws of the September laws were rectified in the Criminal Act of 1991. However, even though the importance of criminal circulars and Supreme Court case law on ḥadd theft seem to have gradually subsided in the 1990s and after, landmark decisions of the Supreme Court still continue, to some degree, to fill important gaps left by the Criminal Act of 1991 and the Evidence Act of 1993. Given the multitude of provisions and legal opinions in the fiqh which have not been codified, but which nevertheless can serve as a frame of reference, this

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process is likely to continue for years to come. Conspicuously, a large majority of the published cases discussed here (and these are available in the courts in the Sudan and serve as guidance) have ended with the remittance of the ḥadd penalty. Layish, who mainly analyzed the years 1983–1985, correctly states that judges of the court of appeal and the Supreme Court applied Islamic criminal law in a more restrained and liberal manner than judges of the lower courts. Thus, judges of the lower courts have in these years, in most cases, treated pickpocketing (nashl) as ḥadd theft and sentenced the thieves to amputation under Article 321 (2) of the Penal Code of 1983.101 Indeed, in the case of ḥadd theft, at the level of the Supreme Court, his conclusion still holds true for 1986 and after. Not only do the majority of the decisions discussed end with the remittance of the ḥadd, but the Supreme Court judges also, at times, went out of their way to avoid amputation. In the absence of regulations concerning many of the subtler details of Islamic criminal law, they used their pivotal position to facilitate the lapsing of the ḥadd punishment of amputation and to make proving sariqa ḥaddiyya more difficult. Whether or not Supreme Court case law has a tangible influence on the quantity and quality of the promulgation of the ḥadd punishment of amputation by the lower courts is, however, beyond the scope of this study. 101

See Layish and Warburg, The Reinstatement, 271.

chapter 8

Highway Robbery (ḥirāba) Ḥirāba in the fiqh Definition of ḥirāba in the fiqh The crime of ḥirāba, as expounded in the fiqh, is based on Qurʾān 5:33–34: The only reward of those who make war upon Allah and His messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs will be an awful doom; Except those who repent before you overpower them. For know that Allah is Forgiving, Merciful. In the fiqh, ḥirāba1 is a rather complex offense that is divided into five different crimes, which entail a variety of punishments:2 (1) In its most simple form, ḥirāba consists of a holdup on a public road, the goal of which is to steal property from passers-by by force. However, despite the criminal intention of theft, in this particular form of qaṭʿ alṭarīq, property is not actually stolen and no one is harmed. Therefore, no ḥadd penalty is imposed, the crime is classified as a taʿzīr offense. (2) A second form of ḥirāba or qaṭʿ al-ṭarīq consists of the holdup described above, in combination with the scaring of passers-by (ikhāfa al-sabīl) on a rural road, that is, outside a city or settlement. The attackers, who are stronger than those they attack, use arms and prevent their victims from continuing on their journey.3 Again, no one is killed and property is not stolen. According to the majority opinion in the Ḥanafī and Ḥanbalī

1 Also, muḥāraba or qatʿ al-ṭarīq. 2 I follow the classification suggested by El Baradie, Gottes-Recht und Menschen-Recht, 118–119. See also Peters, Crime and Punishment, 57–59; Mohamed S. El-Awa, Punishment in Islamic Law (Indianapolis, in: American Trust Publications, 1982), 7–10; Bahnasī, al-Jarāʾim, 80ff.; and ʿAwda, al-Tashrīʿ, 2:638ff. 3 Peters, Crime and Punishment, 57–59.

© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_009

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schools, this crime is punishable by banishment. The Shāfiʿīs leave it for the judge to choose between banishment or another taʿzīr penalty. The Mālikīs allow for the most severe punishments based on Qurʾān 5:33. Here the qāḍī has the choice between capital punishment, crucifixion, crossamputation, or banishment. (3) Robbery, that is, stealing property during a holdup in a remote location, where help cannot be expected, is punishable by cross-amputation. The Mālikī school allows for one of the punishments mentioned in Qurʾān 5:33—execution, crucifixion, or cross-amputation, but not banishment. (4) Homicide in the context of a holdup, without property being stolen is punishable by execution with the sword. Since the death penalty is a ḥadd punishment, here the pardon of the victim’s heirs is without effect. The Mālikī school allows for crucifixion before the execution. (5) The most aggravated form of ḥirāba is defined as a holdup in which homicide and robbery are both committed. This is punished by the draconian measure of execution and crucifixion, the order of which is controversial; the issue of whether or not cross-amputation should take place before execution is also debated.4 Should the offender, guilty of a holdup and murder, repent before being arrested, the ḥadd punishment lapses and the crime is treated like a qiṣāṣ offense. The heirs of the victim can insist on either the execution of the offender or the payment of diya. Since the heirs can also forgo the diya, the qāḍī still has the right to impose a taʿzīr punishment.5 Finally, the fiqh recognizes legal uncertainties in the context of ḥirāba. If any of the victims is a close relative of the perpetrator or if the crime has been committed against a mustaʾmin, then the ḥadd punishment lapses. The majority opinion rules that ḥirāba is punished collectively and whoever takes part in it is liable for the consequences, independent of his actual part in the crime. The Shāfiʿīs, however, opine that each of the perpetrators can only be held responsible for his contribution to the crime.6 According to Abū Ḥanīfa, collective liability also takes effect in the reverse, that is, if the ḥadd penalty cannot be imposed on one of the offenders, then it lapses for all of them.7 4 Compare El Baradie, Gottes-Recht und Menschen-Recht, 117–122; Safia Safwat, “Offences and Penalties in Islamic Laws,”Islamic Quarterly 26, no. 3 (1982), 165–166; and Krcsmárik, “Beiträge zur Beleuchtung,” 335. 5 Köndgen, Das Islamisierte, 118. 6 El Baradie, Gottes-Recht und Menschen-Recht, 121. 7 Peters, Crime and Punishment, 57–59; El Baradie, Gottes-Recht und Menschen-Recht, 121.

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Further, the ḥadd penalty cannot be imposed, according to the Ḥanafīs, if the victim or his heirs are not present in court to have their claims heard.8 Proof of ḥirāba in the fiqh Like sariqa, the proof for ḥirāba can consist of a confession or a testimony following the same conditions.9 There is disagreement on whether a confession must be made once or twice. While Abū Ḥanīfa and al-Shāfiʿī are content with one confession, the Ḥanbalīs and Abū Yūsuf require two. If the confessor withdraws his confession before amputation—and the conviction is based on that confession only—the amputation lapses.10 The Mālikīs accept the testimony of the aggrieved party, that is, the victims, against those who robbed them. Further Conditions Concerning Offender, Victim, and Deed The offender must be adult and sane (ʿāqil). Some fuqahāʾ stipulate that he must also be male, since ḥirāba normally is not committed by women, due to the gentleness of their hearts (riqqat qulūbihinna) and the weakness of their physical constitution.11 The victim of ḥirāba can be either a Muslim or a dhimmī, since the property of both is protected (maʿṣūm). If the victim is a mustaʾmin, however, some hold that his property is not protected and therefore the ḥadd is not due. Further, the victim must either be the owner of the stolen good, or his authorized representative, or his trustee. Finally, there must be no kinship between the offender and the victim. As to the deed itself, it is necessary that the conditions of sariqa be fulfilled. The stolen good must be valuable (māl mutaqawwam), it must be inviolable (maʿṣūm), and the thief (muḥārib) must not have any claim to it. The stolen good also must have a minimum value (niṣāb) and be kept in a safe place (ḥirz) by its owner.12

8 9 10 11 12

El Baradie, Gottes-Recht und Menschen-Recht, 121. Compare Bahnasī, al-Jarāʾim, 75–80. Ibid., 76. Ibid., 85. Ibid., 85–86.

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Ḥirāba in the Penal Code of 1983 Definition and Punishment of ḥirāba in the Penal Code of 1983 In the Penal Code of 1983 the ḥadd crime of ḥirāba was not codified consistently with the opinions of the fuqahāʾ. As a matter of fact, the three terms are not used at all in the relevant section of the Penal Code of 1983. Instead, as in other instances, the Penal Code of 1983 adopts, to a large degree, the pertinent texts of the Penal Code of 1974 and, in an effort to Islamize the inherited material, simply changes the arrangement of prison terms and fines to a selection of either the severe punishments designed for ḥirāba or the ubiquitous formula “flogging and fine or prison.” The legislators seem to have reasoned that the chapter entitled “Of Robbery and Brigandage” (Articles 332–346) of the Penal Code of 1974 sufficiently covered the different crimes that banditry (ḥirāba) is composed of. However, a comparison between the fiqh prescriptions and the Penal Code of 1983 reveals a certain number of important differences regarding the definitions of the crimes. Further, as I show below, in most cases the Islamic punishments attached to the different forms of robbery and brigandage are rather problematic in several respects. In order to identify the main differences between the fiqh and the Penal Code of 1983 we examine the five different crimes (outlined above) that fall under the heading of ḥirāba. Beginning with the first, most simple form of ḥirāba, that is, a holdup on a public road without theft, homicide, or grievous harm, we observe that this is not codified as such in the Penal Code of 1983. Neither is the same crime in its second form, that is, in combination with the scaring of passers-by (ikhāfa al-sabīl). The first form, which is, in a sense the least common denominator of ḥirāba, is punished in the fiqh by a taʿzīr penalty only. Even though this most simple form of ḥirāba devised by the fuqahāʾ was not explicitly defined in the Penal Code of 1983, it was covered to some degree by the article defining “Attempt to Commit Robbery.”13 While the Penal Code of 1974 punished attempts to commit robbery with imprisonment for a term that could extend to seven years and possibly also a fine,14 the punishment for the same offense in 1983 changed to the abovementioned formula, “flogging and fine and prison term.” It should be noted here that the formulas in the Penal Code of 1974 and Penal Code of 1983, which refer to this as attempted robbery, lack—despite some similarities— important elements of the two simpler forms of ḥirāba as described above. Thus, attempted robbery does not have to be committed on a public road and

13 14

Penal Code of 1983, art. 335. Penal Code of 1974, art. 335.

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it is not necessary for weapons to be drawn to scare the victims. Attempted robbery as defined by the Penal Code of 1974 and Penal Code of 1983 can also take place in a city. The opinion of the fuqahāʾ concerning this matter is divided. Abū Ḥanīfa does not allow for a ḥadd penalty if the crime happens in a city, unlike Mālik and al-Shāfiʿī who consider the ḥadd punishment compulsory in such cases.15 The second form of ḥirāba, which includes the scaring of passers-by, without theft, is not explicitly defined in the Penal Code of 1983. It would also fall under the “Attempt to Commit Robbery” (Art. 335 of the Penal Code of 1974 and the Penal Code of 1983) even though the element of “scaring passers-by” is not explicitly mentioned in the pertinent definition. Again, in the fiqh the majority holds that the holdup must take place outside a city, that is, on a rural road, that the attackers must be stronger than the victims, and use arms. None of these elements can be found in the Penal Code of 1983. Because it contains an aggravating element, this second form of ḥirāba consequently entails a more severe penalty in the fiqh. The Mālikīs even allow for capital punishment, crucifixion, cross-amputation, and banishment. The third kind of ḥirāba, that of stealing property during a holdup in a remote location where help cannot be expected, was defined and made punishable as an aggravated form of robbery by Article 334 of the Penal Code of 1974, where it refers to robbery committed on a highway between sunset and sunrise. We might have expected legislators to have adapted this wording to make it compatible with the fiqh definition of ḥirāba, however, the legislators of the Penal Code of 1983 neglected to specify it any further and instead changed the original header, “Robbery,” to “Punishment of robbery” (ʿuqūbat al-nahb), and stipulated that the maximum punishment for robbery is execution, or execution with crucifixion, or cross amputation, or life sentence with banishment. The definition of the crime itself falls under the headers “When theft is robbery” and “When extortion is robbery” (Article 332). Both definitions were copied almost verbatim from the Penal Code of 1974 and lack (in order to make them compatible with fiqh) such specifications as “attempted robbery” described above. The definition of theft and extortion as robbery does not specify that the theft/extortion takes place on a highway, outside a city where help cannot be expected, which is a precondition specified by a majority of the fuqahāʾ, with the exception of the Mālikīs.16 The use of weapons or the timing of the crime (i.e., that it must be committed at a certain time of the

15 16

Bahnasī, al-Jarāʾim, 88. See Ibid., 82.

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day or night) are also not specified. However, we should note that all of these points are disputed in the fiqh.17 Importantly, the definition of robbery in the context of ḥirāba necessarily must include all the conditions of sariqa ḥaddiyya (i.e., the stolen good must be valuable (mutaqawwam) and inviolable (maʿṣūm), its value should reach the niṣāb, the muḥārib must not have any claim to the stolen good, and so forth).18 Since the Arabic text of Article 332 of the Penal Code of 1983, “When theft is robbery” does not mention sariqa ḥaddiyya but simply refers to “theft” (sariqa), an important element of ḥirāba is missing. The fourth form of ḥirāba—homicide in the context of a holdup without theft—can be found under the article “Brigandage with voluntary homicide”19 only. If the crime is committed by a group of people, the whole group, that is, each of the perpetrators of the robbery, will be tried for the entire crime, which is punishable by execution with crucifixion or cross amputation. The range of possible punishments is thus reduced to the two harshest ones. The culprits cannot be sentenced to execution only, nor to a lifelong prison sentence. In comparison to the Penal Code of 1974 the text of the Penal Code of 1983 does not specify the minimum number of culprits that make up a “group.” The article “Brigandage with murder” in the Penal Code of 1974 defines the minimum size of a group as five persons who are held collectively responsible. They must all receive either the death penalty or receive, as a maximum, a life sentence. In the Penal Code of 1983, the absence of a clear definition of “group” means, in fact, that the minimum number of perpetrators decreased to just two. As in 1974, they are held collectively responsible, irrespective of who actually committed the homicide and theft. Conspicuously, robbery in conjunction with voluntary homicide committed by a single perpetrator is not covered by the Penal Code of 1974 and, consequently, was also omitted in the Penal Code of 1983. It was thus left to the actual jurisdictions to decide whether a single thief/murderer would be liable to the harshest punishments as prescribed by Article 332 and the fiqh respectively. Finally, it is important to mention that “brigandage” (in the 1974 code) or “nahb bi-l-ishtirāk” (joint robbery in the 1983 code) covers joint robbery as well as attempted joint robbery. That is, the severe punishments of execution in conjunction with crucifixion or cross amputation apply irrespective of whether theft takes place. If there is no theft, the crime is likened to the fourth form of ḥirāba as described above. However, in this case, the article does not allow for

17 18 19

Compare El Baradie, Gottes-Recht und Menschen-Recht, 119. Bahnasī, al-Jarāʾim, 86. Penal Code of 1974 and Penal Code of 1983, art. 338.

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a single perpetrator and it is unclear which article of the Penal Code of 1983 should be applied in cases of a single perpetrator committing robbery or ḥirāba. The same uncertainty occurs if property is taken by a single perpetrator and a voluntary homicide occurs during the robbery. According to the wording of Article 338 of the Penal Code of 1983, a single perpetrator cannot fall under the definition of brigandage/joint robbery with voluntary homicide. It seems that the legislators of the 1983 law left important lacunae and simply omitted to define one of the severest crimes in the fiqh. Ḥirāba-Related ḥadd Punishments Stipulated for Other Crimes20 Some other property offenses in the Penal Code of 1983 entail the same ḥadd penalty as that for robbery (nahb). Thus, each recidivist in cases of theft, robbery, and fraud is punished with the capital punishment or capital punishment with crucifixion or cross amputation or a life sentence and banishment, even though fraud is not a ḥadd crime in the fiqh and theft is not punished by penalties reserved for aggravated forms of ḥirāba.21 The same severe punishments which the fuqahāʾ reserved for ḥirāba apply in cases of (attempted) harm or (attempted) homicide during a burglary.22 These punishments also apply to the accomplices of a nocturnal burglary in the course of which an (attempted) intentional homicide or an (attempted) intentional assault happens.23 For both crimes the Penal Code of 1974 stipulated a maximum prison term of fourteen years. It is also noteworthy that all or some of these punishments were also applicable to a range of other crimes which are clearly not ḥadd crimes according to the fiqh, for example, burglary with the intention to commit a crime against persons or property.24 The latter crime was punishable with a prison term of up to ten years, according to the Penal Code of 1974.25 In the Penal Code of 1983, if theft was committed, the punishment was capital punishment, cross amputation, prison, or banishment. Further, the most severe punishments, such as capital punishment with or without crucifixion, cross amputation or life imprisonment can be imposed on whoever belongs to a criminal gang formed in order to contravene the Sudanese Penal Code (of 1983) or “any other Sudanese law” or whose deeds are a danger for people, property, public peace, or corrupt public life. It goes without saying that 20 21 22 23 24 25

For the following, also compare Köndgen, Das Islamisierte, 122–123. See Penal Code of 1983, art. 362 (e). Penal Code of 1983, art. 398. Penal Code of 1983, art. 393. Penal Code of 1983, art. 393. Compare also Penal Code of 1983, art. 394 and 396.

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the legislators thus widened the definition of “criminal gang” to such an extent that political groupings could be punished with the harshest punishments, which in Islamic criminal law the fuqahāʾ originally reserved for certain forms of ḥirāba. Similar to other ḥadd crimes—see for example, the article on the promotion of prostitution—we thus observe that ḥadd penalties were introduced for offenses that do not belong to the group of classical ḥadd crimes. It should be noted that the extended applicability of ḥadd punishments also had the effect of reducing the great differences between the punishment of ḥadd crimes and that of non-ḥadd crimes of a similar nature. In addition, besides sharply contradicting the provisions of the fuqahāʾ, this assimilation often led to unduly harsh punishments, with little regard to the severity of the crime. At the same time, the Penal Code of 1974 provided examples to direct the application of certain articles. These were not adopted or replaced in the Penal Code of 1983, thus a useful tool for guiding the interpretation of ambiguous texts was omitted.26 Ḥirāba Cases in the Supreme Court as of 1983 With the above-described incongruities the legislators of the Penal Code of 1983 created a veritable juridical maze. It was left to the Supreme Court to interpret legislation concerning robbery and try to make sense of the multiple contradictions between its pre-1983 heritage and the newly added Islamic punishments. However, as the following Supreme Court decisions demonstrate, reconciliation between pre-Islamization laws and Islamic law was seldom possible once they were combined in the same article. First Case In the first case of 1984, while the plaintiff was sitting in a cattle corral in the presence of two witnesses, a person managed to snatch the plaintiff’s Samsonite case, which had 19,000 Sudanese pounds inside.27 The thief subsequently entered a car where four or more accomplices were waiting for him. The car was pursued by several other cars driven by witnesses of the crime, who, in turn, were shot at by passengers in the thief’s car. When the thief’s car finally broke down, all the passengers, except the defendant who was overpowered by his pursuers and some bystanders, managed to escape. The case, the money, and the weapons were retrieved from the car and the defendant was indicted

26 27

See, for example, the illustrations of Penal Code Act 1974 art. 323 and 344, which were omitted in 1983. Government of the Sudan vs. Ādam Ḥasan Ismāʿīl, sljr (1984), 1984/17.

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under Article 339 (joint robbery or robbery with the attempt to cause death or bodily harm) and sentenced to a life term and banishment. Subsequently, the verdict was reviewed by the court of appeal (maḥkama al-istiʾnāf ), which quashed the decision and turned it back to a regional court. The regional court then sentenced the defendant under Articles 339, in conjunction with Article 333,28 to cross amputation. In its review the Supreme Court raised three questions. First, whether the crime of joint robbery should indeed be considered ḥirāba in this case and whether the punishment of cross amputation was justified. Second, if indeed the case was to be treated as ḥirāba, whether the minimum requirements for the proof of ḥirāba had been fulfilled. And, third, if these minimum requirements were fulfilled, whether indeed a joint liability of all perpetrators of the crime and those connected to it should be assumed, under which the ḥadd punishment of cross amputation was justified. The Supreme Court answered all three questions in the affirmative. Next, we analyze which arguments were used to reach a confirmation of the conviction for ḥirāba under Article 339 (joint robbery). With regard to the first question, the Supreme Court judges admit that there is a contradiction between the definition of ḥirāba by the fuqahāʾ and the crime at hand. Thus, the Ḥanafīs, the Ḥanbalīs, and the Shāfiʿīs hold that among the constitutive elements of ḥirāba is the process of taking property by violence, neither covertly nor by rapidly seizing or snatching (khaṭfan) something. If the stolen good is taken secretly, the perpetrators are deemed thieves (wahum surrāq) and if the good is stolen secretly and the perpetrators escape, the perpetrators are deemed robbers and their hands are not amputated. Despite the fact that the stolen good was not taken by violence or force but snatched away (khaṭfan) from inside a corral for cattle and thus not on a highway outside a city, the Supreme Court concluded that the constitutive elements for ḥirāba were indeed met. It reasoned that the existence of a gang of five or more members was clear proof of their readiness to use violence if necessary, for example, if the rightful owner of the stolen good had insisted on the return of his property, or had reacted quickly enough to object to it being taken. It further based its conclusion on the writings of Muḥammad Abū Zahra.29 Abū Zahra argues that gangs of thieves and terrorist organizations in America and Europe commit their crimes “in a heinous way” (ghīlatan), that is, not openly, but covertly. Their crimes, however, are well-known and made pub-

28 29

Penal Code of 1983, art. 333, defines “joint robbery.” Muḥammad Abū Zahra (1898–1974) was an Egyptian scholar of Islamic law.

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lic, and therefore there are justifications to follow the minority opinion of the Mālikīs (who do not insist that the robbery be committed by way of force). Contrary to the above reasoning of the Supreme Court, we can identify several elements of the crime that either leave room for legal uncertainty (shubha) or are in outright contradiction to the majority opinions of the fuqahāʾ. First, the stolen good was not taken by force, but snatched away. Force was used only during the escape. Second, the case with the money was stolen from inside a corral for cattle, while ḥirāba is a holdup that takes place on a public road. Third, during the theft, weapons were not used to intimidate the rightful owner of the stolen good. Fourth, the circumstances of the case do not conclusively indicate that the gang that escaped in the car was actually superior in strength. On the contrary, despite the fact that they were armed, they were being pursued, and were forced to escape, while neither the victim of the theft nor the witnesses who participated in the pursuit were hurt. The Supreme Court also answers the second question (whether ḥirāba was proven according to Article 78 of the Evidence Act) in the affirmative. It admits, however, that none of the witnesses actually saw the culprit taking the Samsonite case in question or carrying it during any later stage of the crime. In their conclusion, the Supreme Court judges also conceded that the Supreme Court itself had ruled earlier that the witnesses in ḥadd crimes (in compliance with Article 78 of the Evidence Act of 1983) necessarily had to give testimony to all elements and incidents of the crime. In this particular case, however, the Supreme Court held that if there were more witnesses available, then the minimum requirement (niṣāb) for proof of the ḥadd crime could be fulfilled by separate testimonies of each set of witnesses on different aspects of the crime. The Supreme Court based its reasoning on the assumption that the “split testimony approach” does not contradict Article 78 of the Evidence Act of 1983, which specifies the number of witnesses necessary for the proof of ḥadd crimes. Indeed, Article 78 does not specify that the crime as a whole must be testified to by one set of witnesses only. The court considered the guilt of the defendant proven by relying on the testimony of two male witnesses who testified to the theft as such, that is, the Samsonite case was snatched by an unspecified male. Two different witnesses, however, gave testimony to the subsequent pursuit by car, the gang’s use of guns against their pursuers, and their final capture. Both testified to having seen the defendant in the stages subsequent to the theft. The defendant brought forward the defense that he had entered the car only after the theft. This was rejected by the court as not credible. The third question the court answered in the affirmative concerned the question of establishing joint liability. While it could not be proven that the

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defendant actually stole the case, or that he kept it within the car, or used force by shooting at the pursuers, the court considered it proven that the defendant indeed had been part of the gang and thus present at all stages of the crime. Even though the defendant claimed that he had entered the car only after the theft, he nevertheless confessed that he had been inside the car during parts of the flight. Since Article 333 (joint robbery) also considers those who assist in the commission of a crime as liable, and the attempt to escape with stolen money as part of the crime, under Article 339 of the Penal Code of 1983, the defendant was convicted for the crime of joint robbery with the attempt to cause death or bodily harm. In conclusion, since in this particular case joint robbery is equivalent to ḥirāba, and the joint liability of the defendant was proven, the ḥadd punishments, as stipulated in Article 339, were applicable according to the deliberations of the Supreme Court.30 Last, but not least, the court quotes Mālik, Abū Ḥanīfa, and Aḥmad b. Ḥanbal, who are of the opinion that next to the direct perpetrator of ḥirāba, the helper to whom the muḥārib turns when escaping, the assistant (muʿīn), and the vanguard (ṭalīʿa) are also punishable by ḥadd.31 As we have shown, the Supreme Court went to great lengths to prove that the sentence of cross amputation was justified. While each of the three parts of its argument contains major flaws—as discussed above—it is also clear that the origin of these methodological problems lies foremost in the problematic legislation the Supreme Court had to deal with. Confronted with the incompatibility of a taʿzīr crime combined with a ḥadd punishment in the same article, it saw no other way but to associate the taʿzīr crime of nahb (robbery) with the ḥadd crime of ḥirāba (banditry). It is only if nahb and ḥirāba are considered one, and under certain conditions, or so the court reasoned, that the ḥadd punishment for nahb is justified. Islamic jurists, however, were meticulous when it came to the definition of crimes. Taʿzīr crimes and ḥadd crimes have clearly distinguished definitions, punishments, and ways of proving them. Thus, for Islamic jurists, nahb is not equivalent to ḥirāba in its definition or in its punishment. It should also be noted that the Supreme Court judges could have resorted to Article 3 of the Basic Rules of Judgment Act of 1983 meant to guide the judges in their interpretation of the Islamized legislation. Article 3, seldom invoked during the time the Penal Code of 1983 was applied,32 gives judges 30 31 32

For a confirmation of the principle of joint liability in cases of ḥirāba, also see Government of the Sudan vs. ʿAlī Muḥammad Balah and others, sljr (1986), 1405/208. Compare ʿAwda, al-Tashrīʿ, 2:666. As to my knowledge, art. 3 was only invoked once in order to justify the execution of

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recourse to a variety of sources and methods, such as the Qurʾān, the Sunna, fiqh, precedents, qiyās and ijmaʿ, if there exists no text with which to solve the case at hand. Article 2 (a), however, confirms that the judges must assume that the legislators did not intend for the law to be inconsistent with the sharīʿa. Of course, the Basic Rules of Judgment Act of 1983 does not account for the many contradictions between the fiqh and the penal code. If Article 2 of this act is to be taken seriously, that is, if the principles and the spirit of the sharīʿa have precedence in cases where terms and expressions (of the positive legislation) must be interpreted, then a judge would have to understand the meaning of nahb according to the fiqh. This approach would not solve the contradiction between crime and punishment. One could, as explained above, punish ḥirāba by recourse to Article 3 of the Basic Rules of Judgment Act, but for the crime of nahb (robbery) the ḥadd punishments of ḥirāba would still be applicable. Second Case In another landmark decision33 the Supreme Court was confronted again with the question of what exactly the features of ḥirāba were and, in a more general sense, how the contradiction between taʿzīr crimes and ḥadd punishments for such crimes could be solved in the practice of jurisdiction. In the case under discussion, the sequence of events, based mainly on the initial confession of the defendant, can be summarized as follows: at midnight, the defendant, a construction worker living in a village called al-Siqāī, walked to the village club and found the gate to the courtyard open. He dislodged the bolt of the locked door of the main room of the club and entered the room. There, he found a television set inside an iron case. He forced the case open with tools he had brought along and took the television set, worth 370 Sudanese pounds. He then climbed the wall of the room and also took the aerial. Carrying the television set and the aerial, he left the club and stopped a passing car and asked the driver to take him to Khartoum. The suspicious driver then took the defendant straight to the police, where he was interrogated. During questioning the defendant first claimed that the television set was his, but then admitted to having stolen it from the club’s premises. In a first decision, the district judge found the defendant guilty of ḥirāba under Article 396 (lurking and trespass in a house, or house-breaking by night in order to commit a ḥadd crime) and sentenced him to a life sentence with

33

Maḥmūd Muḥammad Ṭāhā for apostasy in the absence of an article defining ridda in the Penal Code of 1983. Government of the Sudan vs. Muḥammad ʿAbd al-Shāfiʿ Sākin, sljr (1984), no. 10/1984.

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banishment in a remote prison. In a second step, the court of appeal confirmed the conviction but revoked the punishment because the district judge had overstepped his authority. According to Article 18 (1)(e) a district judge can only impose a maximum prison sentence of one year.34 The case was then returned to a lower court, which sentenced the defendant, a second time, to a lifelong prison term. When the case reached the court of appeal a second time, it applied Article 321 (2) (sariqa ḥaddiyya) rather than Article 396 and convicted the defendant to amputation of his right hand from the wrist. The court of appeal had concluded that the defendant should not be considered a muḥārib, but rather a thief whose deed fulfilled the conditions of sariqa ḥaddiyya. In the request for review by the Supreme Court the defendant claimed that the police had forced him to confess, and the Supreme Court deemed this an implicit retraction of the confession. In its deliberations on the case the Supreme Court first tried to answer the question of whether indeed Article 396 should be applied (“… and it is the article which punishes the crime of ḥirāba …”)35 or whether the case should be considered under Article 322(2) (ḥadd theft from a residential building). After giving due consideration to the different elements, the Supreme Court concluded that all elements of Article 396, such as house-trespass, housebreaking at night, and the perpetration of a ḥadd crime (sariqa ḥaddiyya) were indeed fulfilled. Second, the Supreme Court pondered the question of whether the crime committed was indeed ḥirāba, which would have entailed one of the ḥadd punishments stipulated under Article 396. Or, put differently, under the circumstances of this particular case, was the imposition of one of these punishments compatible with the sharīʿa? In its deliberations, the Supreme Court denied that the crime committed amounted to ḥirāba because the constitutive elements of ḥirāba were absent. The perpetrator did not carry any weapons; he did not overpower anyone by force or frighten his victim— indeed there was no one in the club at night. In the following step, the Supreme Court judges had the courage—unlike many of their colleagues deciding on related cases—to reach the core of the matter: if the crime committed was indeed house-breaking at night in order to commit a ḥadd crime and the punishments stipulated for this crime are the same as those reserved in the fiqh for ḥirāba, then is it admissible to impose one of the ḥadd punishments for ḥirāba for a crime that obviously is not ḥirāba? The answer is negative. Since crime and punishment are both clearly anchored in the Qurʾān, the Supreme

34 35

Criminal Procedure Act of 1983, art. 18 (1) (e). Quoted from the Supreme Court decision.

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Court held, the judge is not permitted to give a judgment that contradicts the text. He can neither deduct from nor add to the punishment and he also cannot impose a ḥadd punishment on a crime that is not a ḥadd crime. Thus, with regard to the case in question, the judge may not impose the ḥadd penalty for ḥirāba for the crime of sariqa ḥaddiyya because such a decision is diametrically opposed to the pertinent verses of the Qurʾān. In order to justify its reasoning based on the Sudanese penal code, the Supreme Court quoted Article 458 of the Penal Code of 1983, section 5, which does not allow the explanation of any text of the penal code in any manner that contradicts any principle of the sharīʿa. The Supreme Court equally invoked Article 2 (a) of the Basic Rules of Judgment Act of 198336 which stipulates that the judge shall presume that the legislators did not intend to contradict the sharīʿa scale of five religious-legal qualifications.37 Based on its reasoning outlined above and on Article 458 of the Penal Code of 1983 and Article 2 of the Basic Rules of Judgment Act of 1983, the Supreme Court concluded that the imposition of one of the ḥadd punishments on someone who has not perpetrated any of the deeds of ḥirāba is a clear violation of the basic principles of the sharīʿa. It is therefore not admissible for the judge to impose the ḥadd punishment for ḥirāba on someone who has been proven to have perpetrated another crime, irrespective of whether this crime is a ḥadd crime or not. In conclusion, the Supreme Court deemed the (ḥadd) crime in question to be sariqa ḥaddiyya since all the elements constituting it were present. Consequently, it changed the article under which the defendant was convicted from Article 396 to Article 322 (2), because the punishments (of Article 396) clearly contradict the sharīʿa. The fact that the culprit committed the theft after breaking into the house of the club was deemed simply as an aggravating factor but did not change the nature of the crime from sariqa ḥaddiyya to ḥirāba. However, the Supreme Court considered the defendant’s claim that the police had forced him to confess as an implicit retraction of his confession. According to Article 26 (2) of the Evidence Act of 1983, the retraction of a confession in criminal cases renders the confession non-conclusive evidence (bayyina ghayr qāṭiʿa), due to the legal uncertainty (shubha) created by the retraction. However, the confirmation of the confession by other forms of proof—two different testimonies in the present case—removed this legal 36 37

For an analysis of the Basic Rules of Judgment Act of 1983 see Layish and Warburg, The Reinstatement, 168ff. This refers to the five categories of acts, which are wājib (obligatory), mandūb (recommended), mubāḥ (neutral, not recommended, but not sinful), makrūh (detestable, abstaining is recommended), and ḥarām (forbidden, sinful, abstaining is mandatory).

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uncertainty and proved that the defendant was responsible for committing sariqa, the Supreme Court argued. As a net result of the above deliberations, the Supreme Court ordered the abolition of the conviction under Article 396 and changed it to a conviction under 322 (1) (sariqa from a house etc., not amounting to sariqa ḥaddiyya) and consequently remitted the ḥadd punishment of amputation. In a final analysis of this decision and by comparing it with the two other ḥirāba decisions discussed above and below, we find a couple of striking features. First, the case clearly demonstrates the huge discrepancy between taʿzīr crimes and their attributed ḥadd punishments and, as a consequence, the dilemma the judges face. Applying the ḥadd punishment to the taʿzīr crime attached to it is a clear contradiction of the sharīʿa. Not applying the stipulated ḥadd punishment when all the elements of the crime are present is not an option either, since this would be a violation of the text of the penal code. Therefore, the Supreme Court—and this distinguishes this case from the other cases referred to in this chapter—chose a third option. It denounced, in an unprecedented way, the obvious violation of basic tenets of the sharīʿa and solved the dilemma by reassessing the nature of the crime. Thus, even though Article 396 is a precise description of the crime committed (a fact admitted by the Supreme Court itself), it judged it to be sariqa. While the definition of sariqa ḥaddiyya in the Penal Code of 1983, as shown above, has its own contradictions and incongruities, they were able to avoid the pitfalls of applying a ḥadd punishment for a taʿzīr crime (though in fact these pitfalls are inherent in all articles of the Penal Code of 1983 that stipulate classical ḥadd punishments for ḥirāba). Due to the retraction of the confession, the Supreme Court achieved, at the same time, another result: the culprit could not be sentenced to amputation, that is, a ḥadd punishment, but received a taʿzīr penalty. However, the fact remains that the crime in question here was not a simple sariqa ḥaddiyya or a (non-ḥadd) sariqa, but a burglary at night, precisely as described in Article 396. While the Supreme Court could not deny that these additional elements exist, it solved the problem of their existence by qualifying them as a mere “aggravating factor,” not by changing the nature of the crime from sariqa ḥaddiyya to ḥirāba. The crime defined in Article 396, however, is not ḥirāba in the first place, but “lurking house-trespass or house-breaking by night, in order to commit a ḥadd crime.” It should be noted here that the formula “… in order to commit a ḥadd crime” is not only not specific, since no particular ḥadd crime is stipulated, but it also does not mean that the ḥadd crime was actually committed. In other words, for example, a burglary with the intention to commit a ḥadd crime (as opposed to a ḥadd crime that was actually perpetrated) is punished here with the punishments for ḥirāba. It goes without saying that the

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imprecise wording of the article also leaves room for the punishment of other ḥadd crimes in connection with a burglary at night, such as shurb al-khamr or even zinā. In brief, the Supreme Court endorsed the non-application of a ḥadd punishment, based on Article 458 of the penal code, even though the definition of the crime perfectly fit the crime committed. By doing so it implicitly criticized an important part of the Islamized penal code and drew attention to its technical flaws. At the same time, the Supreme Court paved the way for lower courts to take similar decisions in cases in which the punishments for ḥirāba were applicable for crimes other than ḥirāba.38 Third Case In 1988, the Supreme Court reviewed a decision of a lower court39 in a case of robbery (nahb). Two main questions were at stake. First, whether robbery, as defined in the Penal Code of 1983, could indeed be considered a ḥadd crime as the stipulated ḥadd punishment would have suggested. And, second, whether the higher minimum requirements (niṣāb) for the proof of the ḥadd crime of ḥirāba were applicable or whether only the lower requirements for the proof of non-ḥadd crimes had to be met. The two defendants who robbed their victim of money, beat and injured him with a stick and a knife, were convicted under Article 339 (“joint robbery or robbery with attempt to cause death or grievous hurt”) in conjunction with Article 78 (“joint acts in furtherance of common intentions”).40 The trial court, considering the crime a form of ḥirāba and thus a ḥadd crime, pointed out in its explanatory statement that the minimum requirements for the proof of ḥirāba had not been met. It based its deliberations on the nature of nahb, as defined in the Penal Code of 1983, and on a 1983 precedent41 that had come to several important conclusions. Based on its interpretation of the explanatory memorandum to the Penal Code of 1983 and the stipulated ḥadd punishment as defined in Article 339,42 the judges of the precedent had concluded that the legislators indeed had ḥirāba in mind, despite the fact that the term ḥirāba had not been used explicitly. Acknowledging the hybrid nature of the definition of nahb, the judges then

38 39 40 41 42

Compare, for example, Government of the Sudan vs. Jūn Alīqū Būth, sljr (1984), no. 461/ 1984. Government of the Sudan vs. Muḥammad al-Nūr and others, sljr (1988), no. 1407/18. The latter article considers each individual perpetrator of a criminal act to be fully responsible, as if he had committed the act alone. Penal Code of 1983, art. 78. Government of the Sudan vs. Jamāl Muḥammad Ḥusayn, sljr (1984), 84/11. This reasoning would have been valid for all other nahb-related crimes punishable by the ḥadd for ḥirāba.

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concluded that nahb (robbery) as defined in Article 332 and its derivations were to be regarded as a ḥadd crime, that is, as ḥirāba and as a non-ḥadd crime (nahb) simultaneously. The question of how a case was to be treated was decided according to the available proof. If the minimum requirements to prove ḥirāba were met, it was to be treated and, as a consequence, punished as such. If these requirements were not met, it was to be treated and punished as a taʿzīr crime. The Supreme Court, however, did not agree with the reasoning of the trial court as based on the 1983 precedent. In its review, the Supreme Court pointed out that nahb and ḥirāba are essentially two different crimes consisting of different elements. Therefore, the two crimes should not be mingled. In order to show the way out of the impasse, the Supreme Court judges reasoned that the crime of ḥirāba was not mentioned by name in the Penal Code of 1983 at all.43 Instead the legislators had defined the crime of robbery (nahb) with all its elements and subsequently stipulated the punishments it saw fit. The fact that the punishments prescribed for nahb are largely the same as those for various forms of ḥirāba does not mean that the legislators meant to codify the crime of ḥirāba. Rather, the legislators had the right to stipulate any punishment they chose for non-ḥadd offenses, even if the punishment was equivalent to a ḥadd penalty.44 By way of a circular reasoning, the judges then supported their argument by quoting articles45 of the Penal Code of 1983 in which Sudanese legislators indeed combined taʿzīr crimes with ḥadd penalties. Thus, the Supreme Court reached two important conclusions. First, the crime of nahb (robbery), contrary to the dual nature described by the trial court, is not a ḥadd crime despite its punishment being a ḥadd punishment. Second, and as a consequence thereof, the requirements to prove nahb are those of taʿzīr crimes, and it is not necessary to reach the niṣāb for ḥadd offenses. Finally, the Supreme Court annulled the taʿzīr penalty of seven-years imprisonment imposed by the trial court because the minimum requirements for the proof of a ḥadd crime had not been met. Since the punishments stipulated for nahb and its derivatives were, according to the reasoning of the Supreme Court, taʿzīr punishments in the first place, there was no need to replace them with other (lower) punishments. It therefore directed the lower court to impose one of the punishments stipulated in Article 339, that is, capital 43 44

45

In other words, legislators supposedly (voluntarily?) omitted an important part of Islamic criminal law in their 1983 effort to Islamize Sudanese criminal law. For an earlier decision claiming that a ḥadd punishment for a taʿzīr crime is compatible with the sharīʿa, see Government of the Sudan vs. Karār Faḍl ʿAlī and others, sljr (1987), 1984/79. For example, Penal Code of 1983, art. 318 (a), 394, 396, 399.

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punishment or capital punishment with crucifixion, or cross amputation or a life sentence with banishment. It is clear that neither court was able to solve the dilemma caused by the flawed Penal Code of 1983. While the trial court tried to apply a more lenient taʿzīr punishment by arguing about the dual nature of the crime, the Supreme Court simply denied that the legislators had the ḥadd offense of ḥirāba in mind when they Islamized the penal code. It further claimed, in contradiction with the majority opinion of the fuqahāʾ, that the legislators had the right to punish any taʿzīr crime with any ḥadd punishment. The Supreme Court thus blurred any distinction between ḥadd crimes and taʿzīr crimes and this difference is, in fact, of great importance in the fiqh. The original problem lies, of course, in the Penal Code of 1983. In the case at hand the trial court found a way out of the quandary: By ascribing a dual nature to all nahb-related crimes, it set a precedent by using two different standards for proving the crime, on the one hand as a taʿzīr crime and on the other hand as a ḥadd crime. While this was certainly not in line with the fiqh, it would have helped to avoid the extremely harsh ḥadd punishments for ḥirāba. The Supreme Court, however, thought otherwise; it confirmed the ḥadd punishment for a non-ḥadd crime and simultaneously lowered the minimum requirements for the proof necessary to impose a ḥadd punishment.

Ḥirāba in the Criminal Act of 1991 Definition and Punishment of ḥirāba in the Draft Criminal Bill of 1988 and the Criminal Act of 1991 The draft Criminal Bill of 198846 and its slightly revised successor code, the Criminal Act of 1991, introduced for the first time in the history of Sudanese penal codes the ḥadd crime of ḥirāba. The two almost identical definitions of ḥirāba in the two codes are closer to the fiqh and almost completely eliminate the multiple incompatibilities found in the Penal Code of 1983. They also summarized all of the many different crimes related to brigandage and robbery of the Penal Codes of 1974 and 1983 under the heading “ḥirāba.” In other words, the Criminal Act of 1991 divested itself of the heritage of the earlier codes by adapting its terminology and dropping certain crimes, such as, for example, joint robbery, joint robbery with voluntary homicide, and attempted robbery.

46

Compare Criminal Bill 1988, art. 171 (1) and (2).

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Thus, according to the definition of the Criminal Act of 1991, the ḥadd offense of armed robbery (ḥirāba) involves the intimidation of the public, or the act of hindering the users of a highway with the intention of committing an offense against the body, honor, or property. It specifies that the deed happens outside inhabited areas (ʿumran), on land or water, or in the air or inside an inhabited area where it is difficult to call for help. Other conditions for ḥirāba include the use or threatened use of weapons or any offensive tool.47 If the deed results in murder or rape, the offender is punished with the death penalty or death and then crucifixion.48 If it results in grievous harm or robbery of property equivalent to the niṣāb, the punishment is amputation of the right hand and the left foot.49 In any other case, the offender is punished with a prison term not exceeding seven years in exile.50 While these punishments were only applicable in the North, the punishments for the same crimes, if committed in the Southern states, were stripped of Islamic content in terms of punishments that can be ascribed to the fiqh. Thus, in the Southern states of the Sudan, capital punishment was applicable if homicide was involved.51 If rape was committed, life imprisonment was the stipulated punishment.52 Cases of grievous harm or theft of property were punishable by imprisonment not exceeding ten years. All cases not covered by the above articles were punishable by a prison term not exceeding seven years. The punishment for ḥirāba is remitted if the offender abandons the commission of armed robbery and repents before his arrest.53 In cases in which the ḥadd punishment is remitted, it may be replaced by a taʿzīr punishment of imprisonment of up to five years54 without prejudicing the rights of the victim to diya, compensation or the return of the stolen property.55 Even though the Criminal Act of 1991 acknowledges repentance as a valid reason for the lapsing of the ḥadd penalty, no other legal uncertainties, such as ḥirāba against a close relative or the absence of the victim in court, have an effect. While this works to the detriment of the offender, the absence of a collective punishment works in his favor. The Criminal Act of 1991 does not rec-

47 48 49 50 51 52 53 54 55

Criminal Act of 1991, art. 167 (a), (b). Criminal Act of 1991, art. 168 (1) (a). Criminal Act of 1991, art. 168 (1) (b). Criminal Act of 1991, art. 168 (1) (c). Criminal Act of 1991, art. 168 (2) (a). Criminal Act of 1991, art. 168 (2) (b). Criminal Act of 1991, art. 169 (1). Criminal Act of 1991, art. 169 (3). Criminal Act of 1991, art. 169 (2).

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ognize a collective liability as advocated by the majority opinion of the schools; the defendant is punished only for his individual contribution to the crime. As for the draconian punishments mentioned in the Qurʾān, the Criminal Act of 1991 recognizes them all, without exception. However, crucifixion follows execution and does not precede it, as some fuqahāʾ hold.56 As to the minimum age of offenders of ḥirāba, the authors of the code applied the majority opinion of the fiqh. Thus, perpetrators between fifteen and eighteen, who show the features of puberty and are deemed adults can be punished by imprisonment and banishment.57 The death penalty and qiṣāṣ for ḥirāba, as for all other ḥudūd, can also be inflicted on perpetrators less than eighteen years of age, if they are deemed adult by the court. With regard to the maximum age for the imposition of prison terms, ḥirāba is an exception. While the imprisonment of those who are seventy years of age or older is not permitted by law, it can be inflicted, as an exception, on perpetrators of ḥirāba.58 Supreme Court Cases Dealing with ḥirāba as of 1991 In comparison to the controversies about ḥirāba from 1983 onward, as of 1991, there have only been a handful of published Supreme Court cases dealing with ḥirāba. Following the 1991 codification of ḥirāba most of the incompatibilities with the fiqh have been eliminated. However, some details required decisions by the Supreme Court. In a 1997 case59 a group of men trespassed into a house and began to steal the owner’s possessions. When the owner of the house tried to get hold of one of the thieves he was injured with a knife. All four participants in the burglary were later arrested and convicted on the strength of their confessions and other material proof. In its deliberations, the Supreme Court had to decide, among other questions that pertained to the age of the perpetrators, whether the definition given in the Criminal Act of 1991 also covered the crime described above. In the Criminal Act of 1991, Article 167 on ḥirāba clearly states that one of the preconditions for ḥirāba (167 (a)) is that “… the act be committed away from inhabited areas, whether on land, water or air or within an inhabited area when it is impossible to call for help.” This definition leaves no doubt that, generally 56 57

58 59

Compare El Baradie, Gottes-Recht und Menschen-Recht, 121. Banishment (nafy) is defined as imprisonment in a place far from the place where the crime is committed and from the offender’s place of residence. See Criminal Act of 1991, art. 33 (1) (b). Criminal Act of 1991, art. 33 (4). Confirmed in Government of the Sudan vs. A. Z. (Aḥmad Zayd), sljr (2002), no. 95/2002. Government of the Sudan vs. Mubārak Yūnis Ḥamād and others, sljr (1997), no. 318/1997.

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speaking, ḥirāba can take place in inhabited areas. However, it does not specify whether the definition includes the interior of houses as such. In other words, it is unclear whether house-trespass and burglary could be construed as the ḥadd crime of ḥirāba or whether ḥirāba necessarily must be committed on an open street. In the case under discussion here the Supreme Court determined that the burglary as described above indeed falls under the definition of ḥirāba as stipulated in Articles 167/168 of the Criminal Act of 1991. The Supreme Court based its decision on the opinions of Mālik, al-Shāfiʿī, and Abū Yūsuf, as well as its interpretation of Article 167, which includes inhabited areas but is unclear on whether the interior of houses and apartments is covered by the definition of ḥirāba. According to the Mālikīs, and contrary to the opinion of the Ḥanafīs60 (except Abū Yūsuf) and the Ḥanbalīs, ḥirāba can take place inside a city. The Ḥanafīs and Ḥanbalīs presume that in a city the public or the police can come to help the victims and that therefore a constitutive element of ḥirāba is missing.61 The Shāfiʿīs reason that ḥirāba can take place in a city if the power of the sultan is weak (and as a consequence the state cannot properly protect its citizens).62 In its definition, the Criminal Act of 1991 follows a reasoning similar to that of the fuqahāʾ. While ḥirāba can happen in an inhabited area, a call for help must be impossible. If such a call is indeed possible, the crime falls outside the definition of ḥirāba. In other words, the Supreme Court implicitly decided that inside a house, one cannot call for help and therefore—if the other necessary conditions are fulfilled—ḥirāba can also take place inside a house. In regard to this decision, we should note that while the president of the court session in question, ʿAbd al-Jalīl Ādam Ḥusayn took the final decision as to the verdict, he met resistance from his colleague ʿAbdallāh al-Fāḍil ʿĪsā. The latter argued that since the house was guarded and the defendant fled after hurting the guard (that is, the owner of the house), the crime committed did not qualify as ḥirāba. ʿĪsā argued that it falls under Article 175, robbery (nahb). We may also note that in his final verdict the president of the court, who had followed a rather narrow definition of ḥirāba, did not insist on the implementation of the harsh punishments for ḥirāba. There was a way, related to the age of the defendants, who were fifteen and sixteen years old at the time the crime was committed, to avoid these penalties. The lower courts had 60 61 62

“… wa qāla Abū Ḥanīfa lā takūna al-ḥirāba fī dākhil al-sakan abadan.” Bahnasī, al-Jarāʾim, 83. See Peters, Crime and Punishment, 57–58. The judgment of the Supreme Court also argues along these lines. Compare also Bahnasī, al-Jarāʾim, 82–83.

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failed to send the adolescents for a medical examination to determine whether they showed signs of adulthood or not. The Supreme Court, therefore, found itself incapable of doing so, since almost a year had lapsed since the crime and the culprits might have come of age only after the crime. It thus supported the original decision to sentence the defendants to a term of two years in a reformatory. In 2000, the Supreme Court concluded that the victims of ḥirāba should be allowed to testify against the muḥārib (see the following section “Proof of ḥirāba”). Further, in the same trial it was decided that homicide (qatl), when it is part of a ḥirāba case, is to be treated as a ḥadd crime and not separately. Since the heir(s) of the victim do not have the right to pardon the culprit in ḥadd crimes, they do not need to be informed of the sentence nor do they have to be present during the execution.63 In the case in question a police force had set out to recapture a group of fugitive criminals who had escaped from prison. In the course of the ensuing gun fight three policemen died. One of the recaptured prisoners, ʿĪsā ʿUthmān Muḥammad, was subsequently sentenced to death by hanging as retribution (qiṣāṣ) under Article 130 (1), on the condition that the private prosecutors were present during the execution of the sentence. He was also sentenced to death by hanging with (subsequent) crucifixion under Article 168 (1)(a) of the Criminal Act of 1991.64 In its review the Supreme Court reasoned that homicide is one of the crimes that can be part of ḥirāba and thus the homicide should be considered a ḥadd crime if it happens within the context of ḥirāba. It therefore cancelled the conviction under Article 130, stating that since the capital punishment was not to be considered retribution (qiṣāṣ) but a ḥadd, the victim’s family had no role to play as private prosecutors, nor would the president of the Sudan have a final say in it.65 The sentence made it clear that private claims to retribution do not play a role in the ḥadd crime of ḥirāba and that the president of the Sudan has no authority to pardon a culprit. Proof of ḥirāba In both the Evidence Act of 1983 and that of 1993, ḥirāba, like sariqa, can be proven by a single, unequivocal confession before a court or by the testimony of two men or, in the case of necessity, by the testimony of a man and two women, or by four women. As with other ḥadd crimes, both evidence acts contradict 63 64 65

Trial ʿĪsā ʿUthmān Muḥammad, sljr (2000), no. 50/2000. Moreover, he was convicted under Criminal Act of 1991 (assistance in the perpetration of a crime), art. 25 (abetment) and art. 26. Consistent with the Criminal Act of 1991, art. 38 (1), (2), and (3).

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the fiqh in two important respects. In Islamic jurisprudence, the testimony of women is not admitted and the two male witnesses necessarily must be of good reputation (ʿadl) in order to be allowed to testify. This important qualification is missing in both codes. In 1984, Supreme Court case law introduced an important qualification to the general principle that the two male witnesses— or, according to the Evidence Act of 1983 one man and two women, or four women—necessarily need to testify to witnessing all elements of the crime.66 Instead, it ruled that if there were, in addition to the original witnesses, two more eligible witnesses available, the first two witnesses could testify to one or more aspects of the crime. The other two witnesses, who of course must also fulfil the requirements for witnesses in ḥādd crimes,67 could then testify to the remaining aspects of the crime. In other words, unlike in the fiqh, the same witnesses do not need to testify to all aspects of the crime. Rather, it is acceptable for different sets of eligible witnesses to give testimony to different aspects of the crime. The Supreme Court also ruled that victims of ḥirāba are permitted to testify against those who have perpetrated ḥirāba against them. In the same case described in the preceding section,68 the policemen who had been involved in a shoot-out testified against the defendant. Their testimony was accepted and the defendant convicted. In its appeal, the defense argued that the policemen were party to the lawsuit and should thus be excluded from testifying. The Supreme Court denied that the policemen who had survived the gun fight were a concerned party of the lawsuit. In its decision, it followed the majority opinion of the Ḥanafīs and the Mālikīs, who accept the testimony of the aggrieved party against the perpetrator, for example, in cases of qadhf, zinā, and ḥirāba. Aḥmad b. Ḥanbal and al-Shāfiʿī, however, do not accept such testimonies in the latter case,69 because they liken it to someone testifying against his opponent or enemy. Such testimony is not accepted among the fuqahāʾ, when the enmity is based on worldly concerns (and not religious matters).70 This reasoning was confirmed in 2003,71 when the Supreme Court decided that if the aggrieved party consists of several victims of a crime, their testimonies are not to be regarded as testimonies of plaintiffs on their own behalf. Rather these are testimonies of one victim on behalf of another victim, 66 67 68 69 70 71

See Government of the Sudan vs. Ādam Ḥasan Ismāʿīl, sljr (1984), 1984/17. Here, according to the Evidence Act of 1983. Trial of ʿĪsā ʿUthmān Muḥammad, sljr (2000), no. 50/2000. Bahnasī, Naẓariyyat al-ithbāt, 101–102. Ibid., 98. Compare trial of Ādam ʿĪsā ʿAlī, sljr (2003), no. 20/2003.

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provided the testimony is not given on behalf of the witness himself, but on behalf of the other witnesses. Lapsing of ḥirāba The reasons for the lapsing of the ḥadd for ḥirāba were regulated for the first time in the Criminal Circular 93/83, issued by the chief justice.72 The circular lists four rules. The ḥadd for ḥirāba lapses: (1) When the muḥārib repents before being caught … and such repentance causes the ḥadd penalty for ḥirāba, such as execution or crucifixion or cross amputation or banishment, to lapse, without prejudice to the rights of other persons to the restitution of property or the right to qiṣāṣ in cases of homicide or injury. (2) When the crime of ḥirāba is proven on the strength of a confession only and the muḥārib withdraws his confession. (3) When the crime of ḥirāba is limited to the theft of money only and did not extend to any other crime, such as homicide or making highways unsafe; in that case, the reasons for the lapsing of the ḥadd for sariqa are applicable. (4) However, the lapsing of the ḥadd does not automatically mean that the offender will not receive a taʿzīr punishment. Taʿzīr is imposed when the evidence necessary for a conviction is available.73 It should be noted here that the fiqh recognizes two other reasons that cause the ḥadd penalty for ḥirāba to lapse, namely, if there is a close relative of the culprit among the victims of the robbery and, second, if the deed was committed against a mustaʾmin.74 In cases of joint robbery, the Shāfiʿīs are of the opinion that each accomplice can be punished only based on his individual contribution to the crime. The majority opinion of the fuqahāʾ (and this was also codified in the Penal Code of 1983), provides for the ḥadd punishment for all accomplices, independent of their individual contribution to the crime. Finally, in order to impose the ḥadd penalty for ḥirāba it is necessary for the victim to be present during the trial and assert his claim to compensation.75

∵ While other ḥadd crimes such as zinā, qadhf, shurb al-khamr, and sariqa were stipulated in the Islamized Penal Code of 1983, for unknown reasons, ḥirāba or qaṭʿ al-ṭarīq were not codified. Yet while a definition of ḥirāba, consistent with 72 73 74 75

See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:15–17 and 3:27–29. Penal Code of 1983, art. 458 (3), allows for a taʿzīr punishment, when the ḥadd lapses, even without a specific text in the law. Compare Krcsmárik, “Beiträge zur Beleuchtung,” 335. El Baradie, Gottes-Recht und Menschen-Recht, 121.

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the fiqh, was absent, the harsh punishments reserved for ḥirāba were introduced for a rather wide variety of crimes. None of these crimes were congruent with the definitions of the different elements that make up ḥirāba in the fiqh and in consequence the number of crimes punishable with ḥadd penalties was augmented far beyond the scope envisaged by the fiqh. As a result, the courts in general and the Supreme Court in particular were faced with a dilemma. In a variety of cases the Islamized Penal Code of 1983 combined taʿzīr crimes with ḥadd penalties. How could their application be justified or avoided on legitimate legal grounds? An analysis of Supreme Court decisions in ḥirāba cases from 1983 onward shows that they used three main approaches. In the first case analyzed above, the Supreme Court identified a crime as constituting ḥirāba even though the article (Art. 339) that was applied in fact described joint robbery (nahb bi-l-ishtirāk). It seemed justified to combine ḥirāba and nahb into one crime and impose the ḥadd penalty for ḥirāba/nahb. However, to reach this conclusion the Supreme Court not only had to ignore the elements of the crime that were incompatible with ḥirāba, it also had to reinterpret the rules for the proof of ḥadd crimes. The admission of several such sets of witnesses seemed to be justified since Article 78 of the Evidence Act of of 1983 does not explicitly state that the same set of witnesses must testify to all elements of a given ḥadd crime. It should be noted, however, that this approach clearly contradicts the opinions of the majority of fuqahāʾ, who hold that witnesses in cases of ḥadd crimes must testify to the crime as a whole and that contradictions in their testimonies constitute shubha. In a second case in 1984 the Supreme Court judges, again faced with the fundamental contradiction between a taʿzīr crime and a ḥadd punishment, reached a completely different conclusion. They correctly reasoned that a crime that is not ḥirāba cannot be punished with the punishments for ḥirāba, even if the crime fits the description of the applicable article, and the punishments for that crime, according to the Penal Code of 1983, are indeed the punishments for ḥirāba. In other words, by way of analogy, for all articles of the Penal Code in which a taʿzīr crime is punished with a ḥadd punishment, it declared those punishments inapplicable. It based its decision on the Basic Rules of Judgment Act that did not allow for such contradictions between the Penal Code of 1983 and the sharīʿa. A third exemplary decision in a case of ḥirāba was taken in 1988, when the Supreme Court concluded that the crime of ḥirāba was not to be found in the Penal Code of 1983 and should not be confused with the crime of robbery (nahb). It was reviewing a case in which a lower court had reasoned that the definition of nahb under Article 332 had to be interpreted to mean ḥirāba and nahb simultaneously. In order to eliminate the contradiction between the

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taʿzīr crime (nahb) and the ḥadd punishment stipulated for it, the Supreme Court concluded that the legislators had the right to stipulate any punishment they chose for non-ḥadd offenses, even ḥadd punishments if they saw fit. While the Supreme Court thus gave a judgment that seemingly reconciled taʿzīr crimes with their respective ḥadd punishments, it is clear that this judgment contradicted the majority opinion of the fuqahāʾ. All of the sentences described above aptly demonstrate the dilemma Sudanese courts found themselves in as of 1983, with regard to cases of ḥirāba. These cases also demonstrate that despite different approaches to the problem, the various levels of the court hierarchy, up to the Supreme Court, were unable to find a satisfactory solution to a problem that was essentially created by flawed and superficial legislation.

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Apostasy (ridda) Apostasy in the fiqh Definition In the Qurʾān the apostate is threatened with harsh punishment in the next world only.1 In stark contrast, many ḥadīths speak of the death penalty for apostasy: for example, in the Prophet’s saying: “Slay him, who changes his religion.” According to another tradition, the Prophet is “said to have permitted the blood to be shed of him who abandons his religion and separates himself from the community.”2 The crime of apostasy3 can be committed by someone born a Muslim or someone who has converted to Islam, regardless of whether this person adopts another faith. To be culpable for apostasy (ridda), the apostate (murtadd) must utter expressions of unbelief or commit deeds of unbelief. In the absence of coherent rules and criteria, Islamic legal literature gives a plethora of examples of which words and deeds constitute apostasy. Examples relate to the word “Allāh,” the Prophet Muḥammad, other prophets and angels, the Qurʾān, ritual prayer or to science (ʿilm). Thus, denying God’s divinity or the prophethood of Muḥammad, believing that Jesus is the son of God, adding or omitting Qurʾānic verses, saying “bismillāh” as a toast when drinking alcohol, rejecting the validity of sharīʿa courts, and ridiculing scholars—all these amount to apostasy.4

1 For apostasy in the Qurʾān see Hallaq, “Apostasy”; also see Gräf, “Die Todesstrafen.” 2 Heffening, “Murtadd,” 7:635, and Griffel, “Apostasy,” 131. 3 On apostasy in Islam, see, for example, Gräf, “Die Todesstrafen,” 20–22, Rudolph Peters and and G.J.J. de Vries, “Apostasy in Islam,” Die Welt des Islams 17 (1976): 1–25; El-Awa, Punishment, 61–64; W. Heffening, “Murtadd,” in Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: E.J. Brill, 1960–2004); al-Jazīrī, al-Fiqh, 1:326–339; Wael Hallaq, “Apostasy,”Encyclopaedia of the Qurʾān, vol. 1 (Leiden and Boston: Brill, 2001); ʿAwda, al-Tashrīʿ, 1:534–538 and 2:706–731; Peters, Crime and Punishment, 64–65; Silvia Tellenbach, “Die Apostasie im Islamischen Recht,” Gesellschaft für Arabisches und Islamisches Recht (gair), (2006), online: http://www.gair.de/pdf/publikationen/ tellenbach_apostasie.pdf; Frank Griffel, “Apostasy,” Encyclopaedia of Islam Three, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas, and Everett Rowson (Leiden and Boston: Brill, 2007): 1:131–134. 4 Peters and and de Vries, “Apostasy in Islam,” 3–4.

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All schools except the Ḥanafīs and the Shīʿīs hold that apostasy is a ḥadd crime.5 The Ḥanafīs are of the opinion that certain groups are exempted from execution. Thus, women are to be held in custody and beaten every three days until they repent and return to Islam. One of the reasons for executing male murtadds was that they pose a threat to the Islamic state. The Ḥanafīs reason that this could hardly be assumed of a female apostate, hence no execution is required. The Ḥanafīs also exempt the “discriminating minor” from execution; however, his apostasy is considered legally valid. In all other schools a minor does not have the legal capacity to commit apostasy.6 The apostate can only be punished if basic elements of his criminal responsibility are fulfilled. First, it must be clear that the apostate was indeed a Muslim before renouncing Islam. This is especially emphasized by the Mālikīs. In case of doubt, for example if the person in question converted to Islam under duress or in a state of intoxication, or as an underage child without his parents, he would not qualify as an apostate. The same is true if the convert only pronounced the shahāda, but never practiced the faith, for example, if he never prayed the daily prayers, or if reliable witnesses to testify that he adopted Islam cannot be found.7 Further, the apostate must have renounced Islam out of his own free will (ikhtiyār), he must be of age (bāligh), and in full possession of his mental faculties (ʿāqil), that is, the apostate must be aware of what he is doing.8 The drunk or the mentally ill cannot be punished for apostasy. Whoever errs or believes something forbidden is allowed, based on the incorrect interpretation of religious norms, also cannot be punished as an apostate.9 Punishment of Apostasy in the fiqh According to all the schools, the punishment for apostasy is the death penalty. Apostasy can be proven either by a confession or the testimony of witnesses. As always in a criminal trial in which the accused are Muslims, the witnesses must be Muslims of good reputation (ʿādil). The majority of the fuqahāʾ hold that the witnesses must explain which acts or words of the accused made them believe that he is an apostate. It is then up to the qāḍī to assess the testimony and decide whether or not the deeds or words in question amount to apostasy.10 5 6 7 8 9 10

Peters, Crime and Punishment, 65. Peters and and de Vries, “Apostasy in Islam,” 6. See Ibid., 3; and Tellenbach, “Die Apostasie,” 6. Heffening, “Murtadd,” 7:635. Tellenbach, “Die Apostasie,” 7. Ibid.

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As mentioned, Ḥanafīs, but also Shīʿīs exempt women from the death penalty for apostasy.11 According to these two schools, a woman who renounces Islam is to be imprisoned and flogged daily, according to the Shīʿīs at each prayer time, until she recants. If she does not recant, then the imprisonment and flogging continue for the duration of her life.12 Once apostasy has been proven and the apostate has been convicted the punishment is not meted out immediately. The apostate has three days to repent and only after he has refused the invitation to repent three times is he executed.13 All Sunnī schools allow for revocation and repentance, the Shīʿīs, however, only grant this possibility to converts.14 Consequences of Apostasy with Regard to Civil Law It should be noted that apostasy also has consequences with regard to civil law. Here the fuqahāʾ concentrate on the following central questions: What happens to the property of the apostate, will he still be able to make legally binding decisions? Will he still be able to inherit or bequeath property or wealth? What impact does apostasy have on an existing marriage? We can distinguish three opinions on the apostate’s entitlement to property. The first holds that his property should be treated like the property of a ḥarbī or enemy alien. A ḥarbī cannot legally hold property and it therefore falls to the public treasury. Second, the rights of the apostate to dispose of his property are in suspension (mawqūf ) until his repentance. Third, the apostate can still dispose of his property. In general, the Ḥanafīs hold that female apostates do not lose their legal capacity and can still dispose of their property. Al-Shaybānī and Abū Yūsuf are of the opinion that this principle should be applied to male apostates as well.15 The apostate cannot inherit from his former co-religionists, nor from those to whose religion he has converted. His own bequeathable property shall be considered enemy property and hence fall to the public treasury. The Ḥanafīs distinguish between property acquired while (still) a Muslim and property acquired as an apostate. The former can be inherited by his Muslim heirs, the latter will fall to the public treasury. However, a minority opinion held by al-Shaybānī and Abū Yūsuf does not make an exception from the normal rules of succession and allows the apostate to bequeath all his property to his

11 12 13 14 15

Peters, Crime and Punishment, 65. Tellenbach, “Die Apostasie,” 4. Griffel, “Apostasy,” 132. Peters and de Vries, “Apostasy in Islam,” 6. Ibid., 7–8; and Tellenbach, “Die Apostasie,” 15.

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Muslim heirs. With regard to female apostates, the Ḥanafīs hold that it is to be inherited entirely by her Muslim heirs.16 If one or both partners renounce Islam, their marriage contract is automatically null and void ( faskh), without the need for a qāḍī’s decision.17 After the repentance of the apostate, the former marriage is not automatically restored, rather a new marriage contract is needed. According to the Shāfiʿīs and the Shīʿīs the marriage contract remains in suspension during the wife’s waiting period (ʿidda). Should an apostate husband repent during the ʿidda, the marriage can resume without a new contract.18 Finally, the apostate cannot be buried according to the Muslim rites.19

Apostasy in the Penal Code of 1983 The Penal Code of 1983 did not contain any provisions with regard to apostasy, nor did any of the earlier penal codes for that matter. The reason given by al-Jīd, one of the authors of the Penal Code of 1983, is the same he gave for not introducing stoning as the punishment for zinā. The committee drafting the penal code was concerned that it would “give a bad impression.” This concern took priority over “perfecting the Penal Code from an Islamic point of view.”20 The fact that apostasy had not been introduced or defined as a crime did not prevent the Numayrī regime from executing the Sudanese mystic and intellectual Maḥmūd Muḥammad Ṭāhā21 for alleged apostasy and state security offenses in 1985.22 As analyzed in chapter 2, the trial of Ṭāhā and 16 17

18 19 20 21

22

Peters and and de Vries, “Apostasy in Islam,” 8; and Tellenbach, “Die Apostasie,” 16. For the dissolution of a marriage in Egypt as a consequence of alleged apostasy see, for example, the analysis of the Abu Zaid case by Kilian Bälz, “Submitting Faith to Judicial Scrutiny through the Family Trial: The Abu Zaid Case,” Die Welt des Islams 37 (1997): 135– 155. Peters and de Vries, “Apostasy in Islam,” 8–9 and Tellenbach, “Die Apostasie,” 15. Heffening, “Murtadd,” 7:636. Zein, “Religion, Legality,” 247. As to Ṭaha’s weltanschauung, see for example, Taha, The Second Message; Rogalski, “Die Republikanischen,” and Rogalski, “Maḥmūd Muḥammad Ṭāhā”; Mahmoud, Quest for Divinity; and Edward Thomas, Islam’s Perfect Stranger: The Life of Mahmud Muhammad Taha, Muslim Reformer of Sudan (London: I.B. Tauris, 2009). On the trial, see, for example, an-Na’im, “The Islamic Law of Apostasy,” and Layish and Warburg, The Reinstatement, 177–180. For an apologetic view of the trial, compare alKabbāshī’s chapter on the Ṭāhā case, al-Kabbāshī, Taṭbīq al-sharīʿa, 85–101. One of the most detailed accounts of the background of Ṭāhā’s execution is given by Abdullahi Ali

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his four co-defendants suffered from a multitude of flaws and contradictions. The Sudanese Supreme Court—after the Numayrī regime came to an end— repealed the earlier decision of the criminal court of appeal in 1986.23

Apostasy in the Criminal Act of 1991 The Sudanese Criminal Act of 1991 introduced the crime of apostasy (ridda) for the first time as statutory law.24 Apostasy has two elements: (a) Any Muslim who propagates for the renunciation of the creed of Islam or (b) Any Muslim who publicly declares his renunciation thereof by an express statement or conclusive act.25 The apostate is to be given a chance to repent during a period to be determined by the court. In the event that he or she insists upon apostasy, and is not a recent convert to Islam, he or she should be executed.26 If the apostate recants before the execution, the penalty is to be remitted.27 Interestingly and in contradiction to most schools, which stipulate a three-day period to recant, the Criminal Act of 1991 leaves it to the court to decide how much time the apostate has to recant. This vague and flexible stipulation gives the court the freedom to handle cases according to political expediency. Since no maximum time frame is set, the apostate could remain in prison until he recants. During my interview with Dr. Ḥasan al-Turābī,28 he insisted that during the drafting process of the Criminal Bill of 1988, which he supervised as minister of justice, he had tried to influence the multi-party committee that drafted the new criminal legislation. He claimed that he would have preferred not to introduce a stipulation on apostasy. While his colleagues in the drafting committee were in favor of such a stipulation—he told me—he persuaded them to agree on the above vague formula, which leaves the time for repentance to the discretion of the court. This account, however, seems improbable. The group drafting the Criminal Bill of 1988 consisted, according to the foreword of the law writ-

23 24 25 26 27 28

Ibrahim, Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in the Sudan, 1898–1985 (Leiden and Boston: Brill, 2008), 273–321. Supreme Court, Constitutional Circuit: Government of the Sudan vs. Asmāʾ Maḥmūd Muḥammad Ṭāhā, ʿAbd al-Laṭīf ʿUmar Ḥasaballah, sljr (1986), no. 2/1406. Criminal Act of 1991, art. 126 (1)–(3). Criminal Act of 1991, art. 126 (1). Criminal Act of 1991, art. 126 (2). Criminal Act of 1991, art. 126 (3). Interview with Dr. Ḥasan al-Turābī, 13 May 2009.

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ten by Ḥasan al-Turābī himself, of jurists from the three coalition parties at the time, the National Islamic Front, the Umma, and the Democratic Unionist Party. The Umma and the Democratic Unionist Party were not known as fervent supporters of Numayrī’s version of Islamic criminal law29 and the project was met with criticism and rejection by both.30 Al-Turābī’s claim to have exerted an attenuating influence on Democratic Unionist Party and Umma jurists therefore hardly seems credible.31 Had al-Turābī really wanted to eliminate the provision on apostasy, he certainly could have done so when the final version of the Criminal Act of 1991 was drafted and he was minister of justice and one of the most powerful men in the Sudan. Amendments to Article 12632 As part of the amendments of the Criminal Act of 1991 that went into force in February 2015, the old Article 126 on apostasy was replaced by one that introduces a more specific definition of the crime. Thus, while the death penalty is maintained, the definition of the crime now consists of four additional subsections, next to the short definition already present in 1991.33 The crime of apostasy was changed to include anyone blaspheming or insulting the Prophet Muḥammad,34 speaking evil, contradicting or distorting the Qurʾān,35 cursing the Prophet’s companions in general or Abū Bakr, ʿUmar, ʿUthmān, or ʿAlī,36 or speaking evil of ʿĀʾisha. As before the apostate is to be given a chance to repent within a time span determined by the court.37 If he insists on his apostasy the punishment is death, if he recants before the execution of the punishment the death penalty will lapse.38 While in 1991 no further taʿzīr punishment was stipulated for a repenting apostate, the February 2015 amendment introduces a 29 30

31 32 33 34 35 36 37 38

The Democratic Unionist Party initially backed the September laws and only criticized them after Numayrī’s downfall. See chapter 2. Compare Christian Delmet, “La place de la loi Islamique dans le système judiciaire soudanais, évolution et perspectives.” Afrique Contemporaine 156, no. 4 (1990), 279; and Köndgen, Das Islamisierte, 68–72. Ironically, in 2006, Ḥasan al-Turābī himself became the object of alleged apostasy. See “Sudan’s Turabi considered apostate,” Sudan Tribune, 24 April 2006. For their valuable help in obtaining the text of the amendments I would like to thank Dr. Lutz Oette, Prof. Asma Abdel Halim, and Dr. Liv Tønnessen. The amended art. 126 (1a) is largely identical with its 1991 predecessor. Amended art. 126 (1b). Amended art. 126 (1c). Amended art. 126 (1d). Amended art. 126 (2). Amended art. 126 (3).

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prison term of up to five years with flogging for the apostate whose ḥadd punishment lapses. This additional clause, however, is limited to those who commit the crime specified under Article 126 (1b), that is, blaspheming or insulting the Prophet Muḥammad.39 It should be noted that other crimes relating to blasphemy can be punished under the amended Article 125, which must be read in conjunction with Article 126. Thus, non-Muslims face a prison term of up to five years and up to 40 lashes if they publicly insult the Prophet Muḥammad,40 his companions, any of his wives or his family or clan members.41 The punishment for third-time repeat offenders is doubled.42

∵ In Sudanese criminal legislation apostasy is unique in one important aspect. While it was officially, and for the first time in the history of Sudanese criminal legislation, introduced into the Criminal Act of 1991, from 1983 up to 2017, there has been only one case in which the death penalty has been implemented for this crime. The decision, which led to the hanging of Maḥmūd Muḥammad Ṭāhā, a religious reformer who opposed the Numayrī regime, was revoked by the Supreme Court in 1986. The legal situation in the Sudan with regard to apostasy is thus paradoxical. While Maḥmūd Muḥammad Ṭāhā was executed before the crime of apostasy as such had been codified and introduced into the penal code, its actual codification in 1991 has not led to the execution of alleged apostates in a single case. The wording of the article on apostasy seems contradictory. On the one hand, its vague definition potentially allows for its wide applicability. On the other hand, it gives the accused a period to repent and leaves this to the discretion of the court, and thus provides the judge with a loophole. Even if the alleged apostate does not recant, he can be kept in prison indefinitely, without any obligation to execute him. With the introduction of the latest amendments in February 2015 this situation has not changed. Against the background of fierce criticism voiced inside and outside the Sudan against Ṭāhā’s execution, the Sudanese judiciary and the Sudanese government respectively do not seem to be interested in applying the death penalty to those who renounce Islam. The al-Bashīr regime, however, recently decided to clarify what exactly constitutes apostasy (ridda) and thus introduced more 39 40 41 42

Amended art. 126 (4). Amended art. 125 (2). Since in the corresponding article 126 (4) the number of lashes is not specified, it is possible, theoretically, to punish non-Muslims more severely than Muslims. Amended art. 125 (3). Amended art. 125 (4).

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concrete definitions. It also introduced relatively severe taʿzīr punishments for cases in which the ḥadd punishment lapses. These new crimes and their respective punishments not only close a loophole with regard to the ḥadd crime of apostasy, they also ensure that non-Muslims (for whom apostasy is not a crime) cannot get away with “insults” to the religion of Islam or its symbols. The respective articles are unclear as to what exactly amounts to an insult or defamation and do not offer examples. This gives potentially wide leeway to the courts. Interestingly, while Article 126 is applicable to Muslims only, Article 125 has neglected to stipulate “speaking evil, contradicting or distorting the Qurʾān” as a crime for non-Muslims.

chapter 10

Homicide and Bodily Harm Against the background of the pertinent fiqh opinions, in this chapter I describe and analyze relevant legislation with regard to homicide and bodily harm and its punishment before and, in more detail, after the introduction of the Islamized legislation in 1983 and after its re-enactment in an overhauled form in 1991. This analysis considers to what extent the Islamized codes of 1983 and 1991 are newly created or rather directly dependent, textually, on earlier colonial and post-colonial codes. I highlight the ways in which Sudanese legislators introduced Islamic offenses into a secular penal code in 1983 by way of “grafting,” thus creating inconsistencies, seriously disturbing the underlying logic of earlier codes, and in many instances not adhering to the prescriptions of the fiqh either. How these inconsistencies have been addressed and for the larger part solved (while, at times, creating new inconsistencies) in the Sudanese Criminal Act of 1991, is the focus of the final part of this chapter. Whenever available, I analyze the landmark decisions by the Sudanese Supreme Court on homicide or bodily harm, based either on the Penal Code of 1983 or—in the following section—on the Criminal Act of 1991 in order to show how the Supreme Court of the Sudan interprets and applies this important part of Islamic criminal law. In this analysis, I seek answers to questions pertaining to the autonomy of the state judicial system vis-à-vis Islamic law, in the context of the Islamization of existing secular codes. I show how the various schools of law are combined efficiently to reassert this very autonomy wherever it is deemed necessary and possible and can be justified within an Islamic frame of reference.

Homicide and Bodily Harm in the fiqh General Principles1 In Islamic criminal law homicide and bodily harm are determined by three guiding principles:2 1 The following section serves as a short introduction; the three principles mentioned are discussed at length below. For the introduction, compare Peters, Crime and Punishment, 38– 41. 2 For the following I rely on ibid., 39ff.

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(1) The principle of private execution: unlike the ḥudūd, the claims of the victim or his heirs are claims of men and not claims of God. Thus, the prosecution, the trial, and the execution of the sentence is contingent on the will of the victim or his heirs. The role of the judge is therefore limited. He only supervises the procedure, scrutinizes the evidence, and determines a judgment based on the claims of the victim or those of the victim’s heirs and the evidence provided. However, in cases where qiṣāṣ is not a possibility, the state court can impose a taʿzīr punishment. (2) The principle that either retaliation (qiṣāṣ) or financial compensation (diya) can be demanded as punishment or compensation by the victim or his heirs. In order to demand retaliation, the killing or bodily harm must have been inflicted intentionally. If the conditions for retaliation are not fulfilled, blood money (diya) may be demanded by the victim or his heirs.3 In certain cases the blood money must be paid by the solidarity group (ʿāqila) of the perpetrator. (3) The principle of equivalence (kafāʾa) stipulates that there must be equivalence between the killer and the victim on the one hand, and between the wounds inflicted and those executed as punishment on the other hand (mumāthala). In the first case, retaliation (qiṣāṣ) can only take place if the blood price of the victim is not lower than the blood price of the perpetrator. In the case of bodily harm, the wounds suffered by the victim and the wounds inflicted on the perpetrator by way of retaliation must be equivalent. Intentional Homicide Intentional homicide (qatl ʿamd) is defined as the killing of an inviolable (maʿṣūm) person (that is, a human being)4 with the intention (qaṣd) of causing death and without a legal reason.5 Human life begins with birth. Therefore, the killing of an unborn fetus does not fall under intentional homicide,6 even if, as a consequence of an attack, the death of the baby takes place after its birth. Further, human life is protected until death, meaning that killing a mortally ill or a lethally wounded person or someone who is about to die is punishable just like the killing of a healthy

3 See below on the conditions for the payment of blood money, as well as the differences between the Sunnī schools. 4 ʿAwda, al-Tashrīʿ, 2:12–13. 5 On the latter, see ibid., 2:73–74. 6 Ibid., 2:14.

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person.7 Homicide at the request of the victim constitutes a legal uncertainty which, according to the majority opinion, averts qiṣāṣ. Among the Mālikīs the legal consequences of a killing by request (of the victim) are controversial. One opinion argues in favor of qiṣāṣ while the other believes that it brings about a legal uncertainty, thereby making a taʿzīr punishment and diya obligatory.8 The killed person must be inviolable (maʿṣūm) either based on the fact that the victim is a Muslim or a non-Muslim under the protection of an Islamic state.9 With regard to the protection of life, there are three kinds of nonMuslims. A mustaʾmin who enjoys temporary protection, a non-Muslim who enjoys permanent protection (a dhimmī), and finally, a non-Muslim foreigner without temporary protection (a ḥarbī), whose life is not protected within Muslim territory. Further, the life of a ḥarbī is not protected when he is killed on the battlefield, or when he becomes a prisoner of war.10 A Muslim loses this inviolability if he commits apostasy. In the event that a Muslim commits a ḥadd crime that is punishable with the death penalty, he loses the legal protection once the crime has been committed, and not only when he is legally sentenced.11 However, whoever kills someone who has committed zinā must be able to prove that zinā has indeed taken place, otherwise that killing is deemed intentional homicide. The same is true for banditry (ḥirāba).12 The killer of a Muslim who has lost inviolability in the aforementioned cases has not committed intentional homicide and therefore qiṣāṣ is not due. Instead he can be punished by a taʿzīr penalty because the right to kill is a prerogative of the state. Whoever kills an apostate can be punished by taʿzīr; in this case, the diya is to be paid to the treasury.13 Another constitutive element of intentional homicide is the killing of another person. An attempt to commit suicide, despite being a sin, is not punishable. Neither is abetment to or assistance in committing suicide.14

7 8 9 10 11 12 13 14

Ibid., 2:13. For more detail, see ibid., 2:83–85 and El Baradie, Gottes-Recht und Menschen-Recht, 133. ʿAwda, al-Tashrīʿ, 2:15. Ibid., 2:18. Ibid., 2:20. Ibid. Ibid., 2:19. El Baradie, Gottes-Recht und Menschen-Recht, 134. For a detailed discussion of “suicide/ intiḥār,” see F. Rosenthal, “Intiḥār,” Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: E.J. Brill, 1960– 2004), 3:1246–1248.

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In the fiqh, subjective criteria to determine whether a homicide was committed intentionally are less important than objective criteria. The jurists do not think that a killer’s intention can really be known and therefore it is more important to concentrate on the way the deed was committed. Further, they inquire about the characteristics of the weapon in order to establish or disprove an intention to kill. If the killing is carried out with weapons that are, under normal circumstances, lethal, the intention to kill is assumed.15 If the weapons are normally not lethal, then no intention to kill is presumed. The fuqahāʾ debate the issue of which weapons must be considered lethal. The most restrictive definition of lethal weapons is suggested by the Ḥanafīs. They only assume the intention to kill if death is caused by the use of fire or lacerating instruments. These are understood as sharpened or pointed instruments that can be used to sever limbs; for example, a sword, a knife, a sharpened stone, or an arrow. In the other Sunnī schools, an intention to kill is assumed if the means used and the manner in which the killing was carried out are normally considered lethal. Among those already mentioned, they include poisoning, causing someone to drown, strangling someone,16 throwing a person from a great height, or beating someone with a heavy object. The distinction between lethal and nonlethal instruments is, however, not always clear-cut. Even if death is caused by an instrument which normally is not lethal, for example, a whip or a stick, the intention to kill can still be assumed. This is the case if death was caused by multiple lashes or by flogging a sensitive part of the victim, or if an unusual constitution has advanced the death of the victim, even if the killer did not know about the condition of his victim.17 Retaliation (qiṣāṣ) In order to execute retaliation (qiṣāṣ), the legally correct assessment of proof and all other prescribed conditions by the judge are indispensable. Only after a legally valid judgment by a court can qiṣāṣ be executed. According to the majority opinion of Ḥanafīs and Ḥanbalīs, execution is carried out by the sword, Mālikīs and Shāfiʿīs, however, inflict the same wounds on the perpetrator that he used to kill his victim.18 Qiṣāṣ is the personal right of private prosecutors, that is, the legal heirs of the victim. It can only be executed if all of them demand qiṣāṣ. According to

15 16 17 18

Compare Peters, Crime and Punishment, 43. On strangling, see ʿAwda, al-Tashrīʿ, 2:71. El Baradie, Gottes-Recht und Menschen-Recht, 135–136. German: “Spiegelstrafe.” See El Baradie, Gottes-Recht und Menschen-Recht, 139.

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the majority opinion in the fiqh, if only one of the heirs pardons the culprit, then retaliation lapses. According to Ḥanbalīs and Shāfiʿīs, if one of the heirs is underage the execution of qiṣāṣ must be postponed until he comes of age and can make a legally binding declaration of his choice. In the meantime, the culprit remains imprisoned. It should be noted, however, that the person who has committed intentional homicide no longer has legal protection (ʿiṣma). However, he can only be killed by the private prosecutors, not by anyone else (unlike in the cases described above).19 Qiṣāṣ is not applicable if the perpetrator is an ascendant of the victim or if there is a descendant of the perpetrators among the heirs of the victim. Equivalence While qiṣāṣ is the punishment for intentional homicide, it can only be applied under specific conditions: The victim’s life may not have a diya value higher than the one of the killer. Thus, a Muslim cannot be killed by way of qiṣāṣ for the killing of a protected non-Muslim (mustaʾmin, dhimmī)20 or for the intentional killing of a slave. However, qiṣāṣ is applicable if the killer has a lower blood price than his victim, that is, a mustaʾmin or a dhimmī can be killed by way of qiṣāṣ for the killing of a Muslim and a slave for the killing of a free person. An exception to this rule is the killing of a woman by a man.21 Despite the fact that her blood price is half that of a man, the male killer can be executed by way of qiṣāṣ.22 The Ḥanafīs, however, follow a different view. They base equivalence on the permanent protection of life (ʿiṣma) not on the value of the blood price. Therefore, according to Ḥanafīs, a free man can be killed for a slave and a Muslim for a dhimmī. A Muslim, however, cannot be killed for a mustaʾmin because the mustaʾmin’s protection is only temporary.23 Multiple Perpetrators Since qiṣāṣ implies equivalence, the fiqh must answer the question of whether qiṣāṣ against multiple perpetrators is possible.24 The fuqahāʾ answer in the affirmative, however, this is subject to certain conditions. Several perpetrators can be killed by way of qiṣāṣ for one victim, if they committed the deed together

19 20 21 22 23 24

ʿAwda, al-Tashrīʿ, 2:21. Bahnasī, al-Jarāʾim, 199–201. Ibid., 202–203. Peters, Crime and Punishment, 47. Ibid. For the following compare ʿAwda, al-Tashrīʿ, 2:41–43.

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and provided that the individual part each of them played in the killing would have led to the victim’s death if it had been committed alone.25 However, according to a majority opinion of fuqahāʾ, qiṣāṣ is averted for all participants of the killing if one of them was either an ascendant of the victim, or if one of the perpetrators cannot be killed due to the lack of equivalence (kafāʾa). This is the case, for example, if a free man killed a slave together with other slaves or if a Muslim killed a non-Muslim together with other nonMuslims.26 In these cases, the ḥadd is averted, and this is justified by legal uncertainty (shubha). Private Prosecutors (awliyāʾ al-dam) Retaliation is contingent upon the will of the victim’s next of kin, who act as prosecutors. Only if no next of kin exist does the state act as prosecutor. All prosecutors (in the first case) must agree on their demand of qiṣāṣ. If only one forgoes his right to retaliation, qiṣāṣ cannot take place. With the exception of the Mālikīs, there is agreement among the other schools that the prosecutors are the heirs of the victim, women included. The Shāfiʿīs, however, exempt the spouse relict. The Mālikīs, in turn, define the prosecutors as the male agnatic group, that is, (a) the descendants, (b) the ascendants, (c) the descendants of the first ascendant (brothers, nephews, etc.), (d) the descendants of the second ascendant (paternal uncles, cousins, etc.) and, (e) the descendants of the third ascendant (paternal great-uncles and their offspring). Thus, qiṣāṣ must be claimed by the closest male agnatic relatives. The groups above exclude each other from demanding qiṣāṣ in descending order, thus descendants exclude ascendants, ascendants exclude the descendants of the first ascendant and so forth. Within a group, closer relatives have precedence over more distant ones.27 The victim’s next of kin, that is, the private prosecutors (awliyāʾ al-dam) can execute the qiṣāṣ penalty themselves. However, in order to avoid excessive cruelty, the qiṣāṣ is to be officially supervised. In later jurisprudence, we find the tendency to charge an official hangman with the execution.28 According to the Ḥanafīs all private prosecutors must be present before and during the execution because it is possible that one of them could pardon the killer in the last moment. 25 26 27 28

El Baradie, Gottes-Recht und Menschen-Recht, 138. See also Bahnasī, al-Jarāʾim, 201–202. For the Ḥanafī opinion on this constellation, see above. For more detail of the Mālikī rules on private prosecutors, see Peters, Crime and Punishment, 45. See El Baradie, Gottes-Recht und Menschen-Recht, 139.

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Qiṣāṣ lapses if the killer dies or if the heirs pardon him. If at least one of the heirs forgoes his right to qiṣāṣ, it automatically becomes a case of diya. Concerning the rights of the heirs, there is a difference of opinion between the four Sunnī schools. Ḥanafīs and Mālikīs hold that the heirs have the right to choose between qiṣāṣ or pardon. Blood money can only be demanded if the killer agrees, according to these two schools. If he refuses, the heirs can either insist on the execution of qiṣāṣ or accept a pardon without any financial compensation. Since Mālikīs and Ḥanafīs make the payment of diya contingent upon the acceptance of the killer, the heirs do not receive anything if he dies before qiṣāṣ has been executed, since only the (living) killer could agree to paying blood money.29 By contrast, Shāfiʿīs and Ḥanbalīs hold that the private prosecutors can choose between three options: (a) retaliation (qiṣāṣ), (b) pardoning (ʿafw) the killer without any financial compensation and, (c) pardoning the killer against the payment of diya. Thus, if the killer dies before the execution of qiṣāṣ, according to Shāfiʿī and Ḥanbalī law, the right to demand the blood price is passed on to the victim’s heirs. Diya and taʿzīr Blood money (diya) and taʿzīr can each replace qiṣāṣ. The normal blood price, payable for accidental and semi-accidental homicide amounts to 100 camels of different ages and sexes. As compensation for intentional and semi-intentional homicide, 100 camels are due also, but of a better quality, that is, a higher value. The blood price depends on the sex, religion, and legal status of the victim. Thus, the diya of a woman is half of the diya for a man. As to the diya of a dhimmī, the schools differ. While Ḥanafīs and Ḥanbalīs are of the opinion that it is the same as the diya for a Muslim victim, Mālikīs hold that it is only half of the blood price of a Muslim. The Shāfiʿīs fix the dhimmī’s blood money as low as one-third of the full diya (diya kāmila). The blood price for homicide is payable to the victim’s heirs. In the Mālikī and the Shāfīʿī schools the surviving spouse does not receive the diya.30 According to the majority opinion, the qāḍī can impose a taʿzīr punishment if the conditions for qiṣāṣ are not fully met or if the heirs forgo their right of qiṣāṣ. The Mālikīs fix 100 lashes and a one year prison term as an adequate taʿzīr penalty. Further, the perpetrator forfeits his right to inherit from his victim.31

29 30 31

Peters, Crime and Punishment, 45–46. Ibid., 49. El Baradie, Gottes-Recht und Menschen-Recht, 140.

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Liability of the Solidarity Group (ʿāqila) In cases of semi-intentional and accidental homicide it is not the perpetrator but the solidarity group which is liable for financial compensation (diya). However, the liability of the ʿāqila lapses if the perpetrator himself has played a key part in establishing the liability, for example, by confessing to the killing or by agreeing to a financial settlement (ṣulḥ) with the heirs of the victim.32 There are some important differences between the schools as to the definition or identity of the solidarity group. While Mālikīs and Ḥanbalīs hold that all able-bodied male tribesmen who have the duty to protect the members of the tribe make up the ʿāqīla, the Shāfiʿīs are of the opinion that the ʿāqila is formed by all adult male agnatic relatives who are also heirs. The Ḥanafīs have adopted a more open definition, which, as we see below, plays a role in modern Sudanese legislation. They hold that any group that shows solidarity to its members can be defined as an ʿāqila. The litmus test is whether the group would help its individual member if his house burns down.33 If no ʿāqila exists and the perpetrator of the crime is a Muslim, the public treasury is liable to pay.34 The liability of the ʿāqila is, however, not unlimited in most schools. While the Shāfiʿīs do not have an upper limit, the three other Sunnī schools identify a maximum amount a member of a solidarity group must pay. The Ḥanafīs set the maximum at 3 dirhams per year. Since the diya can be paid in three annual installments, it would thus take 1,100 men about three years to pay the full blood price of 10,000 dirhams. Shāfiʿīs and Ḥanbalīs distinguish between different social groups. The affluent pay half a dinar, those with a medium income pay a quarter dinar, while the poor have no obligation to make any financial contribution.35 Inviolability of life (ʿiṣma) Islamic criminal law further recognizes the concept of the inviolability of a person’s life, property, and freedom (ʿiṣma)—a protection offered by the state to all Muslims, dhimmīs, and those non-Muslims enjoying an assurance of protection (amān, hudna,36 ʿaqd al-jizya37). While a person enjoying ʿiṣma is inviolable as to his/her life, property, and freedom, the loss of such inviolability 32 33 34 35 36 37

For a detailed discussion of all cases in which the responsibility for the diya does not fall upon the ʿāqila, compare Bahnasī, al-Diya, 69–72. Peters, Crime and Punishment, 50. Bahnasī, al-Diya, 67–68. Peters, Crime and Punishment, 49–50. Protection offered under a truce. Protection offered to those paying the head tax within the dār al-Islām.

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can—under certain circumstances—mean that the intentional killing of such an unprotected individual is not regarded as intentional homicide under the fiqh. The conditions under which a Muslim or a non-Muslim enjoying inviolability loses it are a matter of discussion among the fuqahāʾ. It will suffice to briefly mention the most important cases that invalidate the ʿiṣma and may have a bearing on the present matter.38 (a) All schools consider the killing of a mustaʾmin, and any non-Muslim under the protection of the Muslim state, homicide. According to Abū Ḥanīfa, however, it is not the status (that is, being a Muslim or not) that is decisive here, but where the homicide takes place. In other words, Muslims and non-Muslims in the dār al-ḥarb do not enjoy inviolability because they are in a belligerent state and all those who belong to the dār al-Islām enjoy inviolability, whether Muslim or not, by virtue of the protection the dār al-Islām extends to those present in its territory.39 (b) The killing of an apostate (murtadd), whether before he has been called to repent or after, is not considered intentional homicide.40 (c) The killing of the ḥarbī, that is, one who belongs to a non-Muslim state at war with the dār al-Islām, is also not considered intentional homicide. The blood of the ḥarbī can be shed with impunity in wartime, in cases of self-defense, or if the ḥarbī is a prisoner of war.41 (d) The killing of those guilty of a ḥadd crime which is punishable by death, such as zinā and ḥirāba, is not considered intentional homicide and it is a right of the community that can be executed by any member of it. The culprit is stripped of his inviolability when he commits the crime, not only after the verdict. This is without prejudice to the necessity of proving the crime. If, for example, zinā cannot be proven after the supposed zānī has been killed, his killer is himself guilty of intentional homicide.42 (e) The killing of those guilty of intentional homicide is not considered intentional homicide if it is committed by the heirs of the victim. It is not a “ḥaqq Allāh,” i.e., a right of the community, but the right of the private prosecutors.43 38 39 40 41 42 43

For the following, compare ʿAwda, al-Tashrīʿ, 2:15–25. Ibid., 2:15. Ibid., 2:18–19. Compare ibid., 2:17. The call to repent as such does not restore the apostate’s inviolability but only his repentance as such. Ibid., 2:20–21. As a case of minor importance in the present context we may add the bughāt, or rebels

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In most of these cases the killer of the apostate (murtadd), ḥarbī, zānī, etc. is liable to a taʿzīr punishment, but only for having arrogated to himself the rights of the state, not for the killing as such. In the case of the killing of the apostate, according to the Mālikīs, diya is payable to the treasury.44 Semi-Intentional Homicide Semi-intentional homicide, according to Ḥanbalīs and Shāfiʿīs, is defined as the death of an inviolable (maʿṣūm) person that is caused by an illegal and intentional attack, committed with means that usually do not cause death.45 While the act as such is intentional, the intention to cause death cannot be assumed because of the use of non-lethal weapons. An example of such a nonlethal attack might include throwing a pebble by way of jest or beating a person with a cane, and having these acts result in a person’s death.46 Among Ḥanafīs, however, the definition of semi-intentional homicide is controversial. While Abū Yūsuf and al-Shaybānī follow the majority doctrine that is outlined above, Abū Ḥanīfa maintains that intentional homicide can only be committed with fire, or with a sharp weapon or a tool that cuts through the body (such as a sword or a sharp stone). In all other cases, such as hitting someone with a blunt instrument, or hitting someone with a stone that is not sharp or with a stick, or even in the case of drowning or poisoning, Abū Ḥanīfa considers it to be semi-intentional homicide.47 Mālikīs do not recognize semi-intentional homicide because it is not mentioned in the Qurʾān. They classify these cases as intentional homicide.48 Semi-intentional homicide does not result in qiṣāṣ, but in the obligation to pay an enhanced blood price (diya mughallaẓa). Further, the culprit is disinherited. Diya, however, is not paid by the culprit, but by his solidarity group (ʿāqila). If the heirs of the victim forgo their right to diya, a taʿzīr punishment can be imposed.

44 45 46 47 48

against the state. They are inviolable—according to Mālik, al-Shāfiʿī and Aḥmad Ibn Ḥanbal—unless they go to war against the state. According to Abū Ḥanīfa, they lose their inviolability and their blood can be shed if the bughāt attack those who support the legitimate order or encroach upon their property. See ibid., 2:21. See ibid., 2:19. El Baradie, Gottes-Recht und Menschen-Recht, 141. Peters, Crime and Punishment, 43. Bahnasī, al-Jarāʾim, 216. ʿAwda, al-Tashrīʿ, 2:92 and Bahnasī, al-Jarāʾim, 216.

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Accidental Homicide Accidental homicide is defined as a person erroneously causing the death of another (inviolable) person, in an intended act, but without the intention to kill his victim. This can happen, for example, when someone intentionally cuts down a tree that accidentally kills another person. Or while hunting, when a man accidentally kills a human being instead of the intended animal.49 The act as such does not have to be special, or a particular kind of harm. It can also be indirect, like throwing melons or pouring water onto the street and thus causing a lethal accident. Further, accidental death can be the result of immaterial causes, such as exclaiming something, frightening someone, and causing them to fall from an elevated place and die.50 In both cases of accidental and semi-accidental homicide, financial liability persists and the diya must be paid to the heirs of the victim.51 The issue of whether or not the homicide is the result of negligence—as in the aforementioned case of the mother suffocating her baby—does not influence the financial liability of the perpetrator.52 Accidental homicide creates a liability for blood money (diya), and taʿzīr, as an alternative punishment. Secondary punishments include depriving the offender of his inheritance and bequests.53 It must be noted that in this case, blood money (diya) is not a criminal responsibility but a compensation for civil damages, that is, the loss of life.54 Minors and the insane are also liable for diya. It is important to note that diya must be paid within a period of three years not by the offender, but by his ʿāqila. The reasoning given in the fiqh for holding the ʿāqila responsible is a practical one—accidental homicides are common and such a heavy penalty should not be imposed on an individual with limited property, but on his solidarity group.55 Semi-Accidental Homicide A fourth category is semi-accidental homicide (qatl shibh al-khaṭāʾ), which is defined as homicide when neither the act as such nor its result are intended. The classical example is that of a mother suffocating her baby when turning

49 50 51 52 53 54 55

Peters, Crime and Punishment, 44 and El Baradie, Gottes-Recht und Menschen-Recht, 142. ʿAwda, al-Tashrīʿ, 2:108–110. Peters, Crime and Punishment, 44. ʿAwda, al-Tashrīʿ, 2:105. Ibid., 2:200. However, a number of Muslim authors, such as ʿAbd al-Qādir ʿAwda, list diya under punishments. ʿAwda, al-Tashrīʿ, 2:200–201.

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over in her sleep. This category is only supported by some fuqahāʾ; the majority subsumes such cases under accidental homicide. The lack of intention does not alter the offender’s liability to pay blood money and the legal consequences are the same as in cases of semi-intentional homicide. Minors and the insane are only financially liable in cases of homicide and injuries, regardless of whether their acts were intended.56 Heinous Murder Heinous murder (qatl ghīla) is a category of homicide only recognized by Mālikīs; it is defined as “killing a person for his money after having him treacherously brought to an isolated place.”57 In this special category some important rules that apply to other categories of homicide have no validity. Thus, the murderer can be sentenced to execution, even if the blood price of the killer and victim are not equivalent. A pardon of the heirs of the victim, in this case, cannot avert execution. Bodily Harm Crimes related to bodily harm follow the same categorization of intentional, semi-intentional, accidental, and semi-accidental, as described above with regard to homicide. Also by analogy to homicide, qiṣāṣ is only due in cases of intentional bodily harm, provided all conditions are fulfilled. All other categories result in financial compensation (diya) or pardon (ʿafw). A qiṣāṣ punishment for bodily harm consists of the infliction of the same wound as the one the culprit intentionally inflicted on his victim. Concerning bodily harm, qiṣāṣ and diya are both considered the claims of men (ḥaqq adamī) because they are the result of a violation of a human right, that is, physical integrity. With regard to equivalence, there are some differences between the schools. Thus, according to Mālikīs, qiṣāṣ for wounds or injuries (qiṣāṣ fī-mā dūn al-nafs) is not applicable if the perpetrator is a Muslim and the victim is a protected

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Peters, Crime and Punishment, 44. Some authors disagree about the precise definition of categories. El Baradie, Gottes-Recht und Menschen-Recht, for example, lists killings by negligence under “semi-accidental homicide.” As an example, he gives the person digging a ditch in a public road. A passerby falls into it and dies. Peters, Crime and Punishment, in contrast, lists indirect killings in which a person creates the conditions for the killing but does not directly cause it, under qatl bi-sabab or indirect killing. On qatl bi-sabab see Joseph Schacht, “Ḳatl,” Encyclopaedia of Islam, New Edition, ed. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Leiden: E.J. Brill, 1960–2004), 4:769. Peters, Crime and Punishment, 44 quoting Ibn Qudāma, al-Mughnī (Beirut: Dār Iḥyāʾ alTurāth al-ʿArabī, n.d.), 7:648–649.

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non-Muslim (dhimmī, mustaʾmin), or if the perpetrator is a free person and the victim is a slave. In these cases, diya is applicable, not qiṣāṣ. However, if a Muslim is wounded by a protected non-Muslim or a free person is harmed by a slave, qiṣāṣ is possible, though not in the reverse case.58 Ḥanafīs see it differently: with regard to bodily harm, qiṣāṣ is not applicable between free persons and slaves, men and women, and among slaves. However, qiṣāṣ is applicable between Muslims and protected non-Muslims (dhimmīs and mustaʾmins).59 Equivalence is also important in the case of injuries, though in a somewhat different sense than discussed above. Thus, a sound organ cannot be removed by way of retaliation (qiṣāṣ) for a partly amputated or defective one. This is also true of the reverse. If bodily harm is inflicted by a group of perpetrators against a single victim, qiṣāṣ can be applied according to the majority opinion, under certain circumstances.60 However, Ḥanafīs, who are stricter with regard to the equivalence between perpetrator and victim, do not allow for qiṣāṣ in such cases, since several hands cannot be severed for one hand. Further, qiṣāṣ is excluded if its application would mean that a greater harm is inflicted on the perpetrator than the one he inflicted on his victim. Likewise, qiṣāṣ is not admissible if complete similarity between punishment and the original wound cannot be guaranteed, or if it would entail a severe health risk. Thus, a healthy hand cannot be taken for the loss of a paralyzed one, and likewise, qiṣāṣ is not applied if someone who has already lost his left hand inflicts bodily harm causing the loss of someone else’s left hand. As to flesh wounds, retaliation can be applied in the case of wounds that lay bare the bone (muḍīḥa) or in the case of smaller injuries. In cases of more severe flesh wounds, a qiṣāṣ punishment is not admitted if a inflicting wound of the same length, depth, and form is difficult. In cases where the application of the qiṣāṣ punishment is risky and could lead to death or to greater harm than the one suffered by the person harmed, then qiṣāṣ is not applied. This is the case, for example, for broken bones in the neck, the skull (the so-called maʾmūma, where the wound reaches the cerebral membrane), or in other sensitive parts of the body.61

58 59 60 61

El Baradie, Gottes-Recht und Menschen-Recht, 143–144. Ibid., 144. The conditions of qiṣāṣ against multiple perpetrators are analogous to those in homicide cases. Compare above. El Baradie, Gottes-Recht und Menschen-Recht, 145.

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Whenever the qiṣāṣ punishment is remitted, compensation (diya) must be paid and, if the qāḍī decides, a taʿzīr punishment may be due as well. There is a tariff list for the relevant diya. Thus, a full diya (also called ʿarsh when based on the tariff list) must be paid for the loss of reason, one of the five senses, a physical or mental faculty, or the loss of a member or an organ that a human possesses only one of. Diya for an organ or a member of which a human being possesses two, four, or ten is half, one quarter, or one-tenth of the full diya. For the loss of a tooth it is one-twentieth of the full blood price. All percentages of the blood price are measured against the full diya of the person who suffered the injury. Therefore, women, who have half the blood price of men, receive half the amount of a man for a member or an organ lost.62 In cases not covered by this list or when the injured organ was not sound, the qāḍī, with the help of experts, assesses the amount of the compensation due (called “ḥukūma” or “ḥukūmat ʿadl”).63 In cases of multiple wounds, diya is cumulative, the diya for each wound must be paid individually even though the total might result in a sum higher than the full blood price.64 With regard to the role of the ʿāqila, the same rules apply as for homicide.

Homicide, Bodily Harm, and Their Punishment before and after the Penal Code of 1983 With few differences65 the Penal Code of 1974—being the last secular penal code to date—literally re-enacted the provisions on homicide from the 1924 penal code. The Penal Code of 1924 and the Penal Code of 1974 recognized two kinds of culpable homicide: (1) culpable homicide amounting to murder, punishable by death or life imprisonment and possibly also a fine (Articles 248, 251), and (2) culpable homicide not amounting to murder, punishable by imprisonment for life or a lesser term with a fine or both (Articles 249, 253). The legal difference between the two relates to intention: the murderer intended to kill or knew that the probable consequence of his act would be death. In contrast, in a case of culpable homicide not amounting to murder “the offender, while deprived of the power of self-control by grave and sudden provocation causes the death of the person who provoked [him] … by mistake or accident.” 62 63 64 65

Peters, Crime and Punishment, 53. El Baradie, Gottes-Recht und Menschen-Recht, 145. Peters, Crime and Punishment, 52. For example, “infanticide” is introduced as art. 253 (a), while art. 262 is supplemented by a provision on “causing miscarriage by an unmarried woman to avoid shame.”

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The Islamized Penal Code of 1983 abolished titles of homicide-related offenses that were inspired by the earlier codes and introduced titles and punishments derived from Islamic jurisprudence ( fiqh), such as intentional homicide (qatl ʿamd), semi-intentional homicide (qatl shibh al-ʿamd), and accidental homicide (qatl khaṭāʾ).66 This classification follows the majority opinion of all schools, with the exception of the Mālikīs, who do not recognize semiintentional homicide but add heinous murder (qatl ghīla).67 A comparison of the stipulations for homicide and bodily harm in the different codes shows that there is a strong textual relation—often the definitions are identical despite the changed titles—between the pre-1983 codes and their 1983 Islamized version.68 Such a comparison also brings to light a number of significant contradictions and incompatibilities between the code and Islamic jurisprudence, most of which may be the result of the speed with which the Penal Code of 1983 (and the September laws in general) was drafted.69 A good number of these flaws were redressed in the Criminal Act of 1991. A discussion of these changes follows below. Intentional Homicide The definition for intentional homicide (qatl ʿamd) in the Penal Code of 1983 is identical to the definition for murder in the Penal Code of 1974.70 It is important to note that there are fundamental differences between the notions of “murder” in the Penal Code of 1974 and that of “intentional homicide” (qatl ʿamd) in the sharīʿa law of homicide. “Murder” as meant in the Penal Code of 1974 takes the intention of the killer into account, thus culpable homicide becomes murder when “the act by which the death is caused is done with the intention of causing death.”71 Further, Article 248 of the Penal Code of 1974 stipulates that culpable homicide becomes murder “if the doer of the act knew that death would be probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”72 By contrast, the fuqahāʾ

66 67 68 69 70 71 72

Penal Code of 1983, art. 248, 249 and 255. See Peters, Crime and Punishment, 43–44. The scope of this work does not allow for a more detailed comparison; I confine the discussion to the more striking inconsistencies. For the circumstances surrounding the drafting of the Penal Code of 1983, see Köndgen, Das Islamisierte, 39ff. Penal Code of 1974 and Penal Code of 1983, art. 248. Penal Code of 1974, art. 248 (a). Penal Code of 1974, art. 248 (b). In English law “malice aforethought” is a crucial element required to establish murder. Malice aforethought is generally understood as the intention

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did not think that a person’s intention, that is, his state of mind, could be established and therefore they concentrate on external factors, such as the kind of weapon used or the means by which someone is killed.73 It is clear that by simply translating the definition of murder and listing it under the new title “intentional homicide,” Sudanese legislators did not take into account the incompatibility of the two notions. In addition, the legislators changed the punishment. The Penal Code of 1924 and the Penal Code of 1974 envisaged the death penalty, or life imprisonment and a fine. The Penal Code of 198374 stipulated the death penalty (iʿdām) or diya, provided the heir of the victim accepted.75 Life imprisonment or a fine are no longer among the punishments. Similar to the punishment for semi-intentional homicide (see below) fiqhinspired punishments were introduced half-heartedly. In the fiqh, private prosecutors can choose between retaliation (qiṣāṣ) or the payment of diya. Retaliation, according to the majority opinion of the Ḥanafīs and the Ḥanbalīs, is to be carried out as execution with a sword. Mālikīs and Shāfiʿīs impose on the perpetrator the same wounds that led to the death of the victim. In the fiqh, qiṣāṣ is carried out either by the heirs themselves under official supervision or by an official executioner.76 The text of the Penal Code of 1983 does not refer to the notion of qiṣāṣ at all.77 The term used, “iʿdām” (execution), suggests that the heirs play no part in the execution of the punishment. Indeed, the text of the Penal Code of 1983 does not mention the participation of the heirs in the execution, rather the punishment is carried out by state authorities, normally by hanging. Apart from being pardoned by the heirs of the victim, the fiqh also recognizes other reasons that might cause the qiṣāṣ to be remitted. All schools, except the Mālikīs, agree that a father who kills his son is not liable to qiṣāṣ.78 The majority of the schools, with the exception of the Ḥanafīs, hold that a Mus-

73 74 75

76 77 78

to kill. See James, Introduction to English Law, 193–194 and Elizabeth A. Martin (ed.), Oxford Dictionary of Law, 322–323. Peters, Crime and Punishment, 43 and El Baradie, Gottes-Recht und Menschen-Recht, 134– 135. Penal Code of 1983, art. 251. According to a Supreme Court judgment, the consent of all the heirs, however, is not a precondition for the release on bail of the accused. Government of the Sudan vs. Maddanī ʿĪsā Bishāra, sljr (1991), no. 1991/41. Compare El Baradie, Gottes-Recht und Menschen-Recht, 136ff. See Penal Code of 1983, art. 253. Compare al-Jazīrī, al-Fiqh, 5:213.

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lim who kills a dhimmī is also not liable to qiṣāṣ. There is debate among Muslim legal scholars about the issue of whether or not qiṣāṣ can be imposed on a group that kills one person.79 While none of these reasons for remitting the qiṣāṣ were codified in the Penal Code of 1983, this lacuna was filled by a criminal circular. Semi-Intentional Homicide A close textual relationship can be detected between the definitions of “culpable homicide not amounting to murder” (in the Penal Code of 1974) and “qatl shibh al-ʿamd” (in the Penal Code of 1983); textually these are almost identical and have only changed titles and the corresponding punishment. The Penal Code of 1924 and the Penal Code of 1974 punished “culpable homicide not amounting to murder” with “imprisonment for life or for a lesser term or with both”80 (Article 253). It thus clearly distinguished it from “murder” (Article 251), which could be punished with the death penalty or life imprisonment and also with a fine. Surprisingly, the Islamized version (in the Penal Code of 1983) of the same article introduced the death penalty or diya as punishment for qatl shibh ʿamd. While Article 253 does not specify which diya (kāmila, mughallaẓa) must be paid, the Supreme Court decided that—in accordance with the fiqh—diya mughallaẓa (the enhanced blood price) is meant here.81 In the Penal Code of 1983, the death penalty (iʿdām) or diya, if accepted by the walī l-dam, is no different from the punishment for intentional homicide or qatl ʿamd.82 This seems questionable on account of several problems that result from it. First, the rather fine-tuned relationship between crime and punishment was abolished in a double sense. The Penal Code of 1924 and the Penal Code of 1974 made a clear distinction between the two crimes, in terms of their definitions and correspondingly, in terms of their punishments. The same is true for Islamic jurisprudence that explicitly distinguishes between intentional and semi-intentional homicide by definition and with regard to its respective pun-

79 80

81 82

As to the reasons for the remittance of qiṣāṣ, compare El-Awa, Punishment, 78–81. This is how the legislators phrased it, meaning that the judge has four options: (1) life imprisonment, (2) a limited prison term, (3) a fine or (4) a combination of options 2 and 3. See Government of the Sudan vs. Ḥāmid Aḥmad al-Shaykh, sljr (1984), no. 1405/5. Another example for the inconsistencies of the 1983 code is the stipulation in art. 251— intentional homicide—making the diya dependent on the acceptance of the heir, while art. 253—semi-intentional homicide does not make such acceptance a precondition for diya.

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ishment. While for the former, qiṣāṣ or diya are the possible sanctions,83 the latter entails diya only. It should also be noted here that qiṣāṣ—even though this means death for the culprit—is different from the death penalty. The execution of qiṣāṣ or retaliation is essentially the right of the private prosecutors (awliyāʾ al-dam) and can be remitted.84 In the fiqh, in the case of remittance, the qāḍī can impose a taʿzīr punishment if the heirs forgo their right to diya. This possibility is not mentioned by Article 249 of the Penal Code of 1983.85 In 1989 the Supreme Court ruled that if the private prosecutors settle for diya, an additional taʿzīr punishment cannot be imposed by the court.86 The right of the private prosecutors to forgo qiṣāṣ, and thus spare the life of the culprit, is recognized by all schools.87 By contrast, the death penalty is a right of the public prosecutor, that is, the state; it is the state’s obligation to impose it or remit it, and it is not a right of the heirs. In other words, the introduction of the death penalty as punishment for intentional and semiintentional homicide (and depriving the heirs of their right to claim or remit qiṣāṣ) is not rooted in Islamic jurisprudence. The fact that the legislators refrained from introducing qiṣāṣ for both crimes is even more difficult to understand, given the introduction of qiṣāṣ as a punishment for “attempted intentional homicide (shurūʿ fī qatl ʿamd),88 if harm is caused.”

83

84 85

86 87

88

Article 251 makes the payment of diya dependent on the acceptance of the heir of the victim. Thus, at least in this partial aspect of the possible consequences of intentional homicide, it follows the Ḥanbalīs and Shāfiʿīs. The Ḥanafīs and the Mālikīs, in contrast, hold that the heirs do not have the right to diya if the culprit sentenced to qiṣāṣ does not agree to it. See El Baradie, Gottes-Recht und Menschen-Recht, 139. For details on qiṣāṣ, see ibid., 136ff. Compare ibid., 141 and Schacht, An Introduction, 181. According to the Ḥanbalīs and Shāfiʿīs, the heirs have the choice between qiṣāṣ and diya, according to the Ḥanafīs and Mālikīs the culprit has to consent to diya. If he does not, the heirs only have the choice between qiṣāṣ and pardon. Therefore, if the culprit dies before the execution of qiṣāṣ the heirs will not receive diya since they do not receive diya without the consent of the offender. According to the Ḥanbalīs and Shāfiʿīs, qiṣāṣ will be changed into diya automatically. El Baradie, Gottes-Recht und Menschen-Recht, 139–140. See Government of the Sudan vs. Baḥr Yaḥyā Muḥammad Aḥmad, sljr (1989), no. 1989/37. It is sufficient that one of the private prosecutors pardons the culprit. The right of the others than automatically changes into diya. On the right of the private prosecutors to pardon the killer, see Peters, Crime and Punishment, 45–46 and El Baradie, Gottes-Recht und Menschen-Recht, 139. Penal Code of 1983, art. 259.

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It is also worth analyzing whether the earlier Article 249 “When culpable homicide is not murder” became “semi-intentional homicide” (qatl shibh alʿamd), based on concepts derived from the fiqh, as the new Islamized title suggests. In the fiqh, qatl shibh al-ʿamd is committed if someone whose life is inviolable is killed illegally by means that usually are not lethal. In other words, the intention to kill is not assumed when the manner and the means would not normally lead to death. In another definition, “semi-intentional (homicide) is assumed when only the act, not the result was intended; for instance, if a person beats another with a cane or throws a pebble at him by way of jest and the other person dies or loses an eye as a result.”89 While this is the opinion of the majority of schools,90 as noted, Mālikīs do not recognize “semi-intentional homicide” because the Qurʾān does not mention it, rather semi-intentional homicide is subsumed under intentional homicide.91 We now turn to Article 249 of the Penal Code of 1974 and the Penal Code of 1983 and briefly compare the six cases that constitute “culpable homicide not amounting to murder” with the leading opinions given by the fuqahāʾ. Article 249 recognizes the following reasons culpable homicide does not amount to murder: (1) grave and sudden provocation; (2) an offender acts in good faith, exercising his right to self defense;92 (3) a public servant acts for the advancement of public justice and exceeds the powers given to him by law; (4) homicide without premeditation (resulting from) a sudden fight in the heat of passion; (5) an adult dies or risks death by choice; or (6) an offender kills someone while in a state of mental abnormality due to mental retardation, injury, or a disease of the mind. We should note that none of the cases subsumed under “semi-intentional homicide” mentions the weapon used. By contrast, the fiqh stresses the characteristics of the weapon used, not the motive or the state of mind of the killer.

89 90 91 92

Peters, Crime and Punishment, 43. For the Ḥanafīs see Krcsmárik, “Beiträge zur Beleuchtung,” 341–342. See also Bleuchot, Droit musulman, 2:680. El Baradie, Gottes-Recht und Menschen-Recht, 141. The original wording of the Penal Code of 1974 uses “private defence,” by which is meant “self-defense”; for the sake of clarity, I have used the latter throughout.

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(1) Grave and Sudden Provocation93 In order to understand the actual meaning of sudden provocation (Article 249 (1)), the Penal Code of 1974 offers the following example of a case of sudden provocation:94 z profoundly and suddenly provokes b who is thereby excited to violent rage. a is a bystander who intends to take advantage of b’s rage and cause him to kill z; he puts a knife into b’s hand for that purpose, and b kills z with the knife. In this case, b has committed culpable homicide not amounting to murder, but a is guilty of murder. An analysis of this example shows that this illustration does not work in an Islamic legal context, and was therefore omitted with good reason. Since the Penal Code of 1983 no longer differentiates with regard to the punishment for intentional and semi-intentional homicide, b and a faced the same possible punishment, that is, the death penalty or diya. The example made sense in the Penal Codes of 1924 and 1974, because crime and punishment were in a proportional balance, but it no longer makes sense in the Penal Code of 1983. Moreover, Islamic law reasons differently from the example described here. According to the reasoning of the majority view, in the fiqh a would not be guilty of intentional homicide since he himself did not kill anyone. However, under Mālikī jurisprudence he would be held liable for intentional homicide for having abetted the killing.95 By contrast, b, who actually committed the homicide in question, used a weapon that would normally make the qāḍī assume that the culprit had the intention to kill. He would thus be liable for intentional homicide in any madhhab. In other words, sentencing both a and b to qiṣāṣ would only be possible under Mālikī law. (2)

An Offender Acts in Good Faith, Exercising His Right to Self-Defense96 In the fiqh, self-defense is lawful as long as the means used to ward off the attack is proportional to the violence used by the attacker. If this is the case and excessive violence has not been used, the act of self-defense does not 93 94

95 96

Penal Code of 1983, art. 249 (1). The Penal Code of 1983, while being for the most part a copy of its 1974 predecessor, has nevertheless omitted all illustrating examples which had helped judges to interpret the meaning of many provisions in Penal Code of 1974. Peters, Crime and Punishment, 28–30 and Abū Zahra, al-Jarīma, 1:295. Penal Code of 1983, art. 249 (2).

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entail criminal or financial liability. The fuqahāʾ explain that by attacking a person violently the attacker loses his inviolability (ʿiṣmā) and the death of the violent attacker, or any injuries he incurs, are to be considered a form of qiṣāṣ.97 The principle that the violence used should be proportional to the attack was recognized by the Penal Code of 1974, Article 249 (2). However, killing someone in self-defense was qualified as culpable homicide, not amounting to murder and the maximum punishment was life imprisonment (or any lesser term) or a fine or both.98 While the maximum punishment in the Penal Code of 1974 was harsh, the range of possibilities left enough leverage that the judge could adjust the punishment to individual circumstances. In 1983, this flexibility was eliminated. As in many other cases under Article 249 of the Penal Code of 1983, the punishment is invariably the death penalty or diya. And as in all other cases of semi-intentional homicide specified in the Penal Code of 1983, the death penalty contradicts the fiqh. However, the definition of the crime changed as well. In the Penal Code of 1974, the offender (that is, the person who was attacked and exercised his right of self-defense) caused death while exercising his right “without premeditation and without any intention of doing more harm than is necessary for the purpose of such defense.” The death penalty for this form of “excessive self-defense” can be replaced by diya, if the heir(s) accept(s) it.99 As in the Penal Code of 1974, so the Penal Code of 1983 explicitly recognizes the right to self-defense.100 Both codes clearly define when the right to self-defense extends to causing death; for example, in cases of an attack in which the victim reasonably fears death or grievous harm, rape, abduction or kidnapping,101 robbery, house-breaking by night or theft, mischief by fire on buildings, tents or vessels, or house-trespass (i.e., breaking and entering).102 In conclusion, we can say that in the provision on self-defense, the definition is congruent with the fiqh. Both the fiqh and the Penal Code of 1983 recognize the right to self-defense, in the sense that a crime can become a lawful act if the act remains within the limits necessary to ward off the attacker.

97 98 99 100 101 102

Peters, Crime and Punishment, 25. Penal Code of 1974, art. 253. Penal Code of 1983, art. 249 (2) and art. 253. Compare Penal Code of 1974 and 1983, art. 55–63. Penal Code of 1974, art. 61, and Penal Code of 1983. Penal Code of 1974, art. 62, and Penal Code of 1983.

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(3)

A Public Servant Acts for the Advancement of Public Justice and Exceeds the Powers Given to Him by Law103 This case remains within the parameters of the provisions of the fiqh. The act which leads to the death of the victim must be forbidden to the perpetrator. If the act is within the rights or the duties of the perpetrator and he thus has a legal justification, then the killing is lawful and thus does not entail punishment or the payment of financial compensation.104 While it makes sense to punish a public servant who oversteps his authority, the death penalty is unduly harsh and not in line with the fiqh, which excludes the death penalty for semiintentional homicide. (4)

Homicide without Premeditation (Resulting from) a Sudden Fight in the Heat of Passion105 The text of this article was copied almost literally into the Criminal Act of 1991. Its relationship with the fiqh is explained below. (5)

Consenting to One’s Own Death or to the Risk of One’s Own Death106 While the Penal Code of 1983 provides for the death penalty or diya, the legal consequences of a case in which death is caused with the consent of the victim (Article 249 (5)) are disputed in the fiqh. While Ḥanbalīs do not impose qiṣāṣ or diya, Ḥanafīs and Shāfīʿīs consider the qiṣāṣ to have lapsed, but their respective scholars do not agree on whether diya must be paid instead. Some Mālikīs even argue in favor of imposing qiṣāṣ in such a case.107 This abridged account of the differing legal opinions of the fuqahāʾ shows that only some Mālikīs favor qiṣāṣ for killing with the consent of the victim. When the Penal Code of 1983 specified the death penalty for this offense, it was thus in conflict with the majority of schools.

103 104 105 106 107

Penal Code of 1983, art. 249 (3). See Peters, Crime and Punishment, 38. Penal Code of 1983, art. 249 (4). Penal Code of 1983, art. 249 (5). Compare El Baradie, Gottes-Recht und Menschen-Recht, 133.

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(6)

An Offender Kills Someone While in a State of Mental Abnormality Due to Mental Retardation, Injury, or a Disease of the Mind108 Again, a crime committed under circumstances that the Penal Code of 1924 or the Penal Code of 1974 consider mitigating can be punished, according to the Penal Code of 1983, like intentional homicide, and therefore result in capital punishment. Capital punishment for the mentally ill, however, stands in contradiction to Islamic jurisprudence.109 Heinous Murder Moreover, the Penal Code of 1983 introduces “heinous murder” (qatl ghīla, Article 252), which was not recognized in the 1924 and 1974 codes. This crime is only recognized by Mālikīs, not by the other schools. The majority of Mālikīs define qatl ghīla as luring the victim into a trap and killing him, though some add that the intention behind the act is to rob the victim.110 In this special case, qiṣāṣ and diya do not apply, nor can the heirs of the victim pardon the culprit. According to Mālik b. Anas, qatl ghīla is a variety of ḥirāba and the killer should be executed as a ḥadd punishment.111 The introduction of qatl ghīla is another example of how the Penal Code of 1983 tends to introduce harsh punishments, either by aggravating the punishments of existing offenses or—as in this case—by introducing new crimes with harsh punishments. It is also notable that because of the absence of a definition of “heinous murder,” the qāḍī is granted considerable latitude to establish his own definition of what “heinous murder” means.112 Because the definition of qatl ghīla was left to the courts, it inevitably reached the Supreme Court. In a 1988 decision the Supreme Court defined qatl ghīla in the following way: “Concerning heinous murder, Sudanese legislators have adopted [the relevant opinion of] the Mālikī school, [which states] that the offender uses deception or persuasion by way of subterfuge to reassure him [the victim], then betrays him and commits homicide at an appropriate moment.”113 In 1990, the Supreme Court widened the definition of heinous murder and included not only murder

108 109 110 111 112 113

Penal Code of 1983, art. 249 (6). Notwithstanding their not being punished, their ʿāqila has to pay the diya. According to the Ḥanafīs, they do not lose their right to inherit from the victim. El Baradie, Gottes-Recht und Menschen-Recht, 138. ʿAwda, al-Tashrīʿ, 2:641. We see, later, how the Supreme Court deals with this problem. Government of the Sudan vs. ʿImād Aḥmad Huwīllū and others, sljr (1989), no. 139/1988.

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by enticement, persuasion (istidrāj), and deceit (khadīʿa), but also intentional homicide while a victim is asleep; all these cases fall under the grave form of betrayal (ghadr).114 In other words, heinous murder not only applies in cases of treachery, but also in cases in which the victim could not feel or know what is happening to him. It goes without saying that these two decisions widen the margin for the application of qatl ghīla. In fact, the definition became such that almost any kind of homicide could fall under it, if the perpetrator does not respect certain rules when killing or the victim is unaware of what awaits him. Perhaps the latitude given to the courts with this interpretation of heinous murder moved Sudanese legislators to a change of direction: The Criminal Act of 1991 did not reintroduce “heinous murder,” nor did it replace it with a revised text, rather, Sudanese legislators simply omitted an offense that had been considered an integral part of the sharīʿa eight years earlier. The Criminal Act of 1991 thus also reinforced a fundamental principle in the fiqh, that is, the right of the private prosecutors to receive financial compensation and the right to pardon the killer.115 Equivalence (kafāʾa) and Inviolability (ʿiṣma) in the Penal Code of 1983 As we have seen above, the selective and limited adoption of the qiṣāṣ provisions of the fiqh created major inconsistencies and incompatibilities with the fiqh. In order to illustrate the scope of these, it is necessary to present a more detailed discussion of the notion of equivalence (kafāʾa) with regard to qiṣāṣ: Equivalence is a precondition for the execution of qiṣāṣ. Thus, according to the majority of schools a Muslim cannot be executed for the killing of a dhimmī or a mustaʾmin.116 However, according to Ḥanafīs, a Muslim can be executed for the intentional homicide of a dhimmī. In the case of a Muslim killing a mustaʾmin, Ḥanafīs recognize a so-called shubhat al-ʿiṣma (a legal uncertainty) concerning the immunity of the mustaʾmin.117 Since for Ḥanafīs the permanence of the immunity (not the monetary value of the blood price) is the main criterion,

114 115

116 117

Government of the Sudan vs. Aḥmad Ḥassan ʿUmar and Ādam Aḥmad ʿUmar, sljr (1990), no. 1406/95. Aḥmad ʿUthmān ʿUmar, Athar al-tashrīʿāt al-islāmiyya fī l-niẓām al-qānūnī al-Sūdānī: Dirāsa taḥlīliyya. Baḥth muqaddam li-nayl daraja al-duktūrā fī l-qānūn (Khartoum: Jāmiʿat al-Kharṭūm, 2002), 149. A ḥarbī, a non-Muslim foreigner residing outside the territory of Islam, is without immunity. El Baradie, Gottes-Recht und Menschen-Recht, 134. El Baradie, Gottes-Recht und Menschen-Recht, 136.

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the perpetrator cannot be executed because the mustaʾmin only has temporary immunity.118 It remains unclear whether or not the Islamized Penal Code of 1983 introduced the Islamic concept of equivalence (kafāʾa) in qiṣāṣ cases in regard to the legislative text. The Arabic terms used were taken directly from the 1974 code.119 They suggest equivalence between Muslims and non-Muslims and men and women in cases of qiṣāṣ. However, the Basic Rules of Judgment Act of 1983 gave qāḍīs leverage to interpret the law in the light of sharīʿa terminology.120 Below we see how the Supreme Court dealt with this problem. Kafāʾa and ʿiṣma in the Supreme Court A landmark case121 concerning an attack by Palestinian terrorists122 in a Khartoum hotel highlights important issues pertaining to the questions of equivalence (kafāʾa) and inviolability (ʿiṣma). The facts of the case can be summarized as follows: a group of five Palestinians was convicted under Article 252 (qatl ghīla)123 and Article 84 (abetment) and sentenced to death by hanging. According to the unretracted confessions of the perpetrators, the following crime took place. A group of five Palestinian men carried out two attacks. In one attack, explosives were planted in the dining room of the Acropole Hotel in Khartoum, killing seven people, five British citizens and two Sudanese, and wounding seven others of different nationalities.124 In a second attack, guns and hand grenades were used in the Sudan Club and one Sudanese was wounded.125 First, in its discussion of the crime, the Supreme Court refuted the defense’s contention that the case should be treated as a political crime. Second, the Supreme Court denied the “legitimacy of the Fedayeen’s operations against the enemy’s or his supporter’s interests”—as claimed by the defense—and pointed out that the British couple killed were employed by the United Nations and thus had diplomatic status. The Supreme Court also denied that the killings could

118 119 120 121 122 123

124 125

Peters, Crime and Punishment, 47. Compare the Penal Code of 1974 and the Penal Code of 1983, art. 8 and 9. The analysis of Supreme Court decisions shows how this dilemma is solved in actual jurisdiction. The Government of the Sudan vs. ʿImād Aḥmad Huwīllū e.a., sljr, 139/1988. The group’s attack was, allegedly, masterminded by Abū Niḍāl. Qatl ghīla under the Penal Code of 1983 calls for the death penalty, and the private prosecutors do not have the right to pardon or commute the diya. Penal Code of 1983, art. 252. Three Sudanese, two British, one Swiss, and one man from Bangladesh. In this discussion of the case I confine myself to the aspects that are pertinent to Islamic criminal law.

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be justified as acts of self-defense, nor was sudden provocation involved (these are the two reasons which would have made possible a diya sentence for semiintentional homicide). The Supreme Court court discussed two issues pertinent to the fiqh at length, namely, the question of whether the blood and property of the foreign victims was protected, that is, whether foreigners from the “dār al-ḥarb” were “maʿṣūm” (inviolable). This was answered in the affirmative by the Supreme Court judges, since the entry visas the victims held were considered equivalent to holding an “amān,” a contract of safe-conduct, protecting person and property. Thus, the non-Muslim and non-Sudanese victims were considered “mustaʾminūn,”126 and therefore their lives and property were inviolable (maʿṣūmū l-dam wa-l-māl), as long as they held valid visas (i.e., amān). Consequently, their killing was punishable like any other killing (of a Sudanese, Muslim or other). The question of the equivalence (kafāʾa) of killers and victims was therefore affirmed by the Supreme Court. As a result, the private prosecutors in this case are the heirs of the victims, residing in the dār al-ḥarb. Interestingly, the Supreme Court judges did not follow the four Sunnī schools127 who would not allow for the execution of a Muslim killer who took the life of a mustaʾmin, based on an assumed lack of equivalence between them. Instead, by assuming equivalence between a Muslim killer and his non-Muslim foreign victims, the Supreme Court considered the lives of non-Muslim foreigners as deserving of the same protection as the lives of Muslims, foreign or not. Finally, the court discussed at length the question of whether a sentence according Article 252 (“qatl ghīla”) was justified. This question is of great importance since Article 252 does not allow for a pardon by private prosecutors and makes the death penalty compulsory. The court concluded that the constitutive elements of homicide “ghīlatan” did not apply because the case at hand did not involve theft and the victims were not far from help. As a consequence, the final decision was commuted from Article 252 (heinous murder) to Article 251 (intentional homicide) for the first of the accused, and from Articles 252/84 to Articles 251/84128 for all the others accused.

126 127 128

The Supreme Court’s reasoning draws on ʿAwda, al-Tashrīʿ, 1:277. For the different opinions on the question of the equivalence of the killer and his victim, see discussion above. The title of Penal Code of 1983, art. 84 reads, “Abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.”

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Accidental Homicide The penal codes prior to the Penal Code of 1983 clearly distinguished between negligence and accidental acts. Thus, death by negligence was defined in the Penal Code of 1924 and the Penal Code of 1974 as causing the death of a person “by doing any rash or negligent act not amounting to culpable homicide.” Its punishment was either a prison term of up to two years or a fine or both (Article 256 of the Penal Code of 1924 and Penal Code of 1974). As to acts done “by accident or misfortune,” Article 47 of the Penal Code of 1924 and Penal Code of 1974 stipulated that they were not offenses—and thus not punishable— provided they were done without criminal intention or knowledge, that is, the act took place in a lawful manner and by lawful means. Further, both codes recognized unintentional death caused by an act that constituted a punishable offense (i.e., accidentally killing someone while committing an unrelated crime). Causing unintentional death was punishable with a prison term of up to ten years, or a fine, or both.129 For the first time, the Islamized Penal Code of 1983 introduced the notion of accidental homicide (qatl khaṭāʾ, Art. 255 of the Penal Code of 1983). The definition of qatl khaṭāʾ and its respective punishment (Art. 256 of the Penal Code of 1983) replaced the crimes of “death caused unintentionally (while) in the act of committing an offense” and “causing death by negligence.” The elimination of these two articles left important lacunae. For example, in the Penal Code of 1983 it no longer made a difference whether someone was killed accidentally in a lawful act or while committing an unlawful act. However, Article 47 of the Penal Code of 1924 and Penal Code of 1974—which stipulated that accidental acts were not offenses (see above)—was not abolished, but supplemented, such that accidental homicide (qatl khaṭāʾ) was explicitly exempted from the general rule formulated in Article 47. In other words, if death was the result of the act, Article 47 could not be invoked and Article 255 and 256 on qatl khaṭāʾ was applicable. The new definition of “homicide by accident is every killing resulting from an act by which the perpetrator did not intend to cause death or harm to the victim of the killing (al-maqtūl).” A comparison with the fiqh shows that the important notion of immunity—that is, that the life of the victim must be inviolable (maʿṣūm)130—was not part of the definition. Neither does the definition distinguish between accidental and semi-accidental homicide, as some schools do. The article thus does not distinguish whether the act as such was intended or unintended, as long as the death that resulted from the act was unintended.

129 130

Penal Code of 1924 and 1974, art. 255. For more details, see the section on “Inviolability of life (ʿiṣma).”

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Interestingly, Article 256 of the Penal Code of 1983 does not stipulate taʿzīr punishment for such an offense, but diya only, and thus it does not follow the provisions of the fuqahāʾ, rather it moves the offense entirely into the sphere of private law. Consequently, some commentators are of the opinion that the nature of homicide by accident (qatl al-khaṭāʾ)—at least according to its new definition in the Penal Code of 1983—should not be considered a criminal offense (ghayr jināʾī) at all, since the perpetrator did not intend to kill or harm anyone and the offense only entailed a financial liability. According to that opinion, it should therefore be removed from the Criminal Act of 1991 and be cited in the civil code.131 The Penal Code of 1983, in contrast to the fiqh, does not stipulate that the diya has to be paid by the ʿāqila. The text of Article 256 suggests that the offender alone must bear the burden of the blood money. It should also be noted that in Islamic criminal law fault does not play a role in the assessment of liability in cases of accidental homicide, rather, causation is sufficient. Minors and the insane are liable for diya in cases of accidental homicide. The wording of Article 256 is thus in harmony with the fiqh in this respect. Secondary punishments, such as the deprivation of inheritance and bequests are not mentioned in the Penal Code of 1983. Finally, we must note that accidental homicide is introduced in three more articles of the Penal Code of 1983. All three are direct adoptions from the two earlier codes and concern “acts done by a person bound or justified by law” (Article 44), “acts of a court of justice” (Article 45), and “acts done in pursuance to the judgment or order of a court” (Article 46). These articles are exemptions of criminal responsibility of those who commit such acts. However, by making qatl khaṭāʾ punishable, even in these three cases, the Penal Code of 1983 introduced financial liability in cases of accidental homicide by court officials, when acting as a court of justice, and of government officials in pursuance of a court order. We do not know whether or not this was the intended effect of the introduction of this clause. Bodily Harm As in other instances, a comparison between the relevant articles on bodily harm in the Penal Code of 1983 and the Penal Code of 1974 shows that the authors of the new code relied to a large degree on the earlier code. However, a closer look reveals that introducing notions taken from the fiqh, by grafting

131

Compare ʿAbdallāh Aḥmad al-Naʿīm, al-Qānūn al-jināʾī al-sūdānī. al-Naẓariyyat al-ʿāmma li-l-masʾūliyya al-jināʾiyya (Omdurman, 1986), 112, and ʿUmar, Athar al-tashrīʿāt, 150.

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them onto an earlier secular code resulted in inconsistencies, especially with regard to punishments and to a general disorganization and confusion. Thus, for example, crimes and their respective punishments do not appear in the same location in the text of the law; other crimes, important in the fiqh, have been omitted.132 While the Penal Code of 1974 used the notion of ‘hurt’ throughout, the Penal Code of 1983 introduced a difference between “jurḥ” (wounds; wounding), “qaṭʿ ʿuḍw” (cutting a limb), and “adhan” (harm). While “jurḥ” and “qaṭʿ ʿuḍw” are crimes punishable by qiṣāṣ and diya, crimes qualified as harm were punishable by the ubiquitous “flogging, fine and/or a prison term.”133 However, the different articles pertaining to crimes related to harm specify punishments that vary between “flogging and fine or prison” (Article 283), “flogging or fine or prison” (Article 282), and “flogging and fine and prison” (Article 280). These three punishments, in varying combinations, replaced maximum prison terms that the Penal Code of 1974 had specified according to the severity of the crime. The legislators’ intent, that the punishments correlated to the gravity of the crime committed, was thus abolished in relation to crimes of harm (adhan). The punishments, that is taʿzīr punishments, became completely discretionary: it is up to the qāḍī to determine the number of lashes, the amount of the fine or the months or years of the prison term.134 While the Penal Code of 1983 provides definitions of “intentional causation of wounds,”135 “intentional cutting of a limb,”136 and “accidental causation of wounds or cutting of a limb,”137 it conspicuously omits the important notion of semi-intentional causation of wounds or cutting of limbs. This striking lacuna is even more difficult to understand, given that semi-intentional homicide was recognized by Sudanese legislators. In other words, an important notion of the fiqh, that is, semi-intentional bodily harm, was not codified in 1983. The Penal Code of 1983 leaves the punishment for such crimes unclear. Wounds caused intentionally are to be punished by qiṣāṣ or the diminished diya (aldiya al-nāqiṣa).138 Most importantly, the punishments envisaged are limited to satisfying the claims of the private prosecutors, at least if one relies solely on

132 133 134 135 136 137 138

For example, the definition of accidental wounds is given in the Penal Code of 1983, art. 275; the punishment of the same crime follows in art. 284. Penal Code of 1983, art. 276. Chapter 2, which presents definitions used in the code, remains silent as to the meaning of flogging, fines, and imprisonment. Penal Code of 1983, art. 273. Penal Code of 1983, art. 274. Penal Code of 1983, art. 275. Penal Code of 1983, art. 277.

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the text of the penal code. This is also true for cases of the “intentional cutting of a limb.”139 Accidental wounding and the “accidental cutting of a limb” were at first equally exempted from any punishment by the state, once private claims were satisfied by way of the payment of diya.140 This striking lacuna, however, was rectified in Criminal Circular 94/83 that allowed for a taʿzīr punishment in cases of pardon or financial settlement. The Penal Code of 1983 did not list or define the full or partial diya that is due for the loss of the various body parts, nor did it list the body parts and wounds subject to retribution.141 We should note that the Penal Code of 1974 contained an article outlawing a specific form of female circumcision.142 In the Penal Code of 1983, this article was deleted and not replaced. The Supreme Court on the Issue of Bone Fractures The question of equivalence plays an important role with regard to bone fractures. Early in the modern history of Islamic criminal law in the Sudan, in a case from 1984, the Supreme Court took an important decision to limit the application of qiṣāṣ in cases of bodily harm.143 The facts of the case are as follows: in March 1984, the juvenile victim Simon Josef (Saimūn Jūzīf) wanted to urinate close to the United Nations Square in Khartoum and was prevented from doing so by the guard and defendant, Mūsā Bāshā Hubaylā. Hubaylā lifted the victim up and threw him against a wall around the square, and thus broke the right hand of the victim. The defendant denied the charges and claimed that while he had indeed tried to prevent the youth from urinating against the wall, the victim had jumped from the wall voluntarily. The guard claimed that he had accompanied the boy to the police and subsequently to the hospital. After listening to an expert’s testimony and the testimonies of the plaintiff and the only witness to the incident, the criminal court of Khartoum North sentenced the defendant under Article 277 (punishment for intentional harm) of the Penal Code of 1983 to pay the lesser diya (al-diya al-nāqiṣa) of 2,000 Sudanese pounds, and in the case of non-payment, to the application of qiṣāṣ by breaking the right hand of the defendant at his wrist.

139 140 141 142 143

Penal Code of 1983, art. 278. Penal Code of 1983, art. 284. This lacuna was closed in the Criminal Act of 1991. Penal Code of 1974, art. 284 a (1), (2). Government of the Sudan vs. Mūsā Bāshā Hubaīlā, sljr (1984), no. 1984/62.

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In its review of the case the Supreme Court concentrated on two main questions pertaining to the applicability of qiṣāṣ, and, second, to the available evidence and its meaning. With regard to the applicability of qiṣāṣ, the Supreme Court quoted Abū Ḥanīfa, al-Shāfiʿī, and Aḥmad b. Ḥanbal, who were all of the opinion that in cases of broken bones, qiṣāṣ is not applicable because it cannot be guaranteed that the bone of the defendant will be broken in exactly the same manner (al-tamāthul ghayr mumkin). Subsequently, the Supreme Court turned to the question of evidence and asked whether one can be sure that the defendant indeed caused the injury of the victim. Since the defendant denied the charges (thus there is no confession), the prosecution relied on the testimonies of the plaintiff, an expert, and one eyewitness. The Supreme Court does not admit the first two, since the plaintiff’s testimony on his own behalf is not admissible (shahādat al-insan linafsihi ghayr muʿtabara sharʿan) and the expert was not an eyewitness. In order to determine whether or not the remaining evidence is sufficient as proof in a case of qiṣāṣ, the Supreme Court referred to the fuqahāʾ. The judge quotes the majority opinion, which holds that in cases of qiṣāṣ (at least) two men of good reputation are necessary to testify. The judge states that neither the testimony of one man and two women, nor that of one man in combination with an oath of the plaintiff are admissible. The minority view of Mālik, however, holds that in cases of qiṣāṣ, the testimony of one man in combination with the plaintiff’s oath is acceptable as proof. While the court (of first instance) had thus relied on Mālik in its reasoning, the evidence presented, that is, one eyewitness and the plaintiff’s oath, would have been sufficient had the plaintiff been of legal age. The youth, however, according to conflicting statements, was either ten or fourteen years old. In either case, he was not of age, that is, he was not legally capable of swearing an oath. The available evidence is thus limited to one eyewitness, which is insufficient except in cases of necessity (ḍarūra). Necessity, however, cannot serve as an argument, since the incident happened in broad daylight and in a public place and a larger number of people could have witnessed the incident. The Supreme Court finally concluded that there was not sufficient evidence available for a qiṣāṣ conviction, or for a replacement punishment (that is, diya). However, on the strength of one witness, the court argues that it is admissible to impose a discretionary financial punishment, that is, a financial compensation in relation to the damage suffered. The Supreme Court thus quashed the sentence and ordered a re-trial in light of the deliberations described above. This case vividly shows how the Supreme Court pragmatically invoked the opinions of the fuqahāʾ, which in the light of the circumstances and necessities seemed to be the appropriate ones. When it wanted to block the possibility of

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qiṣāṣ in cases of broken bones, it referred to the majority opinion of three Sunnī schools.144 However, it abandoned the majority opinion for a minority view when the Supreme Court was confronted with the question of the minimum requirement for proof of a qiṣāṣ crime. Since a lower court had decided that a minimum of one eyewitness and an oath by the defendant (an opinion held by Mālik) was sufficient proof in a qiṣāṣ case, this time it did not invoke the majority opinion since even this very low threshold of proof had not been reached. The choice between adopting a majority opinion of the fuqahāʾ or a minority opinion with regard to a given crime may not be as discretionary as it might seem. It makes sense to avoid qiṣāṣ in cases of bodily harm, and, more specifically, in cases of broken bones. Its application with a view to equivalence (tamāthul) and its practical realization is technically difficult and certainly would lead to protests in the Sudan and in the western world. Relying on a majority opinion among the fuqahāʾ thus provided the judiciary with a dependable Islamic legal solution for a difficult legal problem. In contrast, it can be expedient to ignore a majority opinion if it conflicts with the interests of the state. The high threshold for the proof of ḥadd or, as in the case under discussion, qiṣāṣ crimes, is a case in point. Thus, in order to make it easier, and therefore more likely, to convict for qiṣāṣ crimes, the Supreme Court judges accepted Mālik’s minority view (that one man and the oath of the victim are sufficient), contrary to the majority (that two men of good reputation are necessary to prove a qiṣāṣ crime). Remitting Retaliation for Homicide and Bodily Harm The major source that allows for retaliation to be remitted in Sudanese Islamic criminal law is Criminal Circular 94/83.145 After having stated clearly that— based on the Mālikī school—the lapsing of retaliation does not forestall the imposition of a taʿzīr penalty, the circular recognizes the following reasons: Retaliation lapses because of a pardon. However, certain preconditions must be fulfilled. Thus, a sentence of retaliation can only be pronounced after the private prosecutors, who must be present and of age, have been asked to pardon (someone) according to the Qurʾān and the Sunna. And if they all, or one of them, pardon (him or her) in an unequivocal manner before the court, the retaliation lapses. In such a case, the pardon can be granted in exchange for financial compensation (diya) or without financial compensation.

144 145

The Supreme Court, however, decided that in the case of a lost tooth, qiṣāṣ is possible. See Government of the Sudan vs. Ḥamza ʿAlī Kutainī, sljr (1985), no. 1405/188. See Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:18–26.

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Further, retaliation lapses if a peaceful financial settlement (ṣulḥ) between the parties takes place. The amount of money agreed upon as compensation can be higher than the diya, provided the perpetrator accepts the higher amount. Retaliation also lapses with the death of the perpetrator (but the obligation to pay the diya remains).146 In addition, retaliation lapses if the killer himself inherits the right to retaliation, either in full or in part. This provision follows the Ḥanbalī and the Shāfiʿī schools.147 The private prosecutors who have the right to pardon or to make a peaceful settlement are all heirs of the victim at the time of his death. The obligation to summon the heirs to suggest that they pardon the perpetrator lapses if the whereabouts of the heirs are unknown. Based on the majority opinion of the fuqahāʾ, the court does not need to wait until an underage heir reaches adulthood. The circular further specifies that the right to grant a pardon or reach a peaceful settlement is valid until the execution of retaliation. Thus, if pardon is given or a settlement reached at any stage up until the execution of qiṣāṣ, the case is returned to the court to impose diya (if the heirs/the victim demand it) and the appropriate taʿzīr punishment. With regard to bodily harm, the circular specifies four reasons for which retaliation can be remitted: first, if the organ or limb which is the object of the qiṣāṣ no longer exists. Second, with a pardon (ʿafw). Third, with a peaceful settlement (ṣulḥ) and, fourth, if it is impossible to guarantee the exact equivalence of the wound inflicted in the course of retaliation. Ḥāmid, in his explanation of Criminal Circular 94/83, presents cases that help us understand the reasons for remitting retaliation. He quotes two cases dealing with a situation in which the heirs of the victim could not be found. In the first case,148 an Ethiopian refugee had killed another refugee, also from Ethiopia. Subsequently, the whereabouts of the heirs of the victim could not be established by the court, since they were not in the Sudan, but were in Ethiopia. Consequently, and in contrast to what Criminal Circular 94/83 specifies, it was not possible to suggest that the heirs pardon the killer or reach a peaceful settlement with him. The Supreme Court judges, based on the majority of the 146 147 148

The payment of diya is a civil right (ḥaqq madanī) which does not lapse with the death of the killer. See Government of the Sudan vs. Ismāʿīl Ḥadūt Ashūt, sljr (1992), no. 1992/32. Peters, Crime and Punishment, 49. Government of the Sudan vs. al-Maw al-Hawā Kāsā, sljr (1989), no. 64/1987. Quoted in Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:23–25.

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fuqahāʾ,149 concluded that the court could impose the death sentence, if a pardon or a peaceful settlement was not possible for purely technical reasons. The killer was indeed sentenced to death by hanging under Article 251 of the Penal Code of 1983. In another, unpublished, Supreme Court case150 neither the name of the victim, who had been stabbed to death, nor the identity of his heirs could be established. After unsuccessfully exploring possibilities to remit the death penalty, the Supreme Court confirmed the initial death sentence. Both cases illustrate that the prosecution of homicide in Sudanese criminal law is not considered an affair to be settled between two private parties only. Rather it involves a mix of private claims and the claims of the society/the state. While considerable room for maneuver is left to private claims, these claims do not exclude society’s need to see a killer punished. Thus, if a pardon, ṣulḥ or diya, are technically impossible because of the absence of the heirs of the victim or because their whereabouts are unknown, the state is the only party left to punish the killer. By applying the death penalty, the state confirms its authority and guarantees social order. At the same time, the state ensures that the technical impossibility to establish private claims does not obstruct justice as such.

Homicide, Bodily Harm, and Their Punishment in the Criminal Act of 1991 Many of the criticisms151 against the Penal Code of 1983 have been addressed and redressed in the Criminal Act of 1991. The following section describes and analyzes how the Criminal Act of 1991 has, to a large degree, succeeded in detaching its Islamized sections from the earlier secular codes of 1924 and 1974 and in eliminating substantial incompatibilities with the fiqh. Thus, it has returned a certain balance between a given crime and its corresponding punishment.

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Only Abū Ḥanīfa is of the opinion that qiṣāṣ is not obligatory in a case in which the heir of the killer is unknown. All the other schools are of the opposite opinion. ʿAwda, al-Tashrīʿ, 2:136. See also Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:23. Supreme Court case no. 69/1987. Quoted in Ḥāmid, Mawsūʿat al-manshūrāt al-jināʾiyya, 3:25–26. See Köndgen, Das Islamisierte, 42–44.

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Intentional Homicide Most importantly, the Criminal Act of 1991 eliminated the gross imbalance between intentional and semi-intentional homicide with regard to their respective punishments. As of 1991, intentional homicide (qatl ʿamd, Article 130) has become punishable by qiṣāṣ, which can be remitted by private prosecutors. If remitted, a taʿzīr punishment of up to ten years without prejudice to the right of diya can be imposed. In comparison, the punishment for semi-intentional homicide is now sensibly proportional to intentional homicide. That is, the disproportionate death penalty for semi-intentional homicide (Article 253 of the Penal Code of 1983) has been eliminated and replaced by a prison term of not more than seven years without prejudice to the right of diya. In other words, a comparison of the punishment for these two crimes shows that the Criminal Act of 1991 has reestablished an equilibrium between the definition of the crimes and their respective punishment in the sense that semi-intentional homicide is punished more lightly than intentional homicide. This proportionality had been lost in the Penal Code of 1983. However, we can observe that the prescribed prison term of up to seven years is rather light, especially in comparison with the envisaged life imprisonment or a lesser term of the Penal Code of 1974. Further, the Criminal Act of 1991 is more faithful to the fiqh: it introduces qiṣāṣ as a punishment for intentional homicide, while at the same time it gives the heirs of the victim the right to remit its implementation. Significantly, the comparison also shows that the state has reasserted its right to punish, by stipulating a specific taʿzīr punishment, while assuring the rights of the heirs to compensation. In the Penal Code of 1983, serious crimes like intentional homicide and semi-intentional homicide were either punished as harshly as possible with the death penalty, or with a financial compensation payable to the heirs only. It seems that the authors of the Penal Code of 1983 focused entirely on the rights of the heirs, while disregarding the necessity to punish severe crimes in cases of a private pardon or settlement. This obviously unintended oversight became clear from a supplementary Criminal Circular 94/83, which stipulated the possibility of a taʿzīr punishment in such cases. However, the nature of such a taʿzīr punishment was left unspecified. Moreover, the wording “… is punished by the death penalty or the diya if the heir of the victim accepts it” (Art. 251 of the Penal Code of 1983) suggests that the decision of whether the culprit would be executed or would only pay a financial compensation was ultimately to be decided by the heirs of the victim and not by the judge.

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Who Executes Retaliation for Homicide? The Penal Code of 1983 introduced a whole new vocabulary inspired by the fiqh, the meaning of which remained unclear. Article 64 of the Penal Code of 1983 thus integrated Islamic punishments, such as single amputation, cross amputation, stoning, crucifixion, and qiṣāṣ into the list of applicable punishments, however, it did not define, explain, or illustrate them. While “full diya” was explained, qiṣāṣ, crucifixion (ṣalb), stoning, and amputation were not. The Criminal Act of 1991 filled this lacuna: Qiṣāṣ (retaliation) is defined as the “punishment of an intentional offender with the same act he has committed.” The right to retaliation is initially established for the victim and is then vested in his heirs.152 Since the question of who is vested with the right to implement retaliation touches directly upon the state’s prerogative to punish convicted criminals, it is significant that the Criminal Act of 1991 found a solution to balance the diverging interests and rights of the state and those of the heirs of the victims. Article 28(3) determines that “retaliation shall be death by hanging” and that “it is allowed to kill the offender in the same manner in which he has caused death, if the court deems it appropriate.” In other words, the state again reasserts its right to punish crimes and it defines hanging, which by definition is to be executed by the state itself, as the standard way of executing qiṣāṣ. Only in exceptional cases, “when the court deems it appropriate,” is qiṣāṣ to be executed as retaliation or in the way the culprit killed his victim. However, in the qiṣāṣ cases published in the sljr between 1983 and 2007 that ended in death sentences, invariably, the culprit was sentenced to death by hanging. I could not find a case in which anyone was executed in the same way the perpetrator killed his victim. Article 229 of the Criminal Procedure Act of 1983 specifies: “If an accused is sentenced to death it is necessary for the verdict to specify that execution (will be carried out) by way of hanging until death.” In other words, the Criminal Procedure Act of 1983 does not stipulate any alternative methods of execution. During my interviews with Supreme Court judges in 2009 all my interlocutors confirmed that no death penalty had ever been carried out by the heirs of the victim. It is also instructive to compare the provisions for the execution of capital punishment by way of qiṣāṣ in the Criminal Act of 1991 with the opinions of the four Sunnī schools. As described above, Ḥanbalīs and Ḥanafīs argue that the culprit should be executed by the sword, Shāfiʿīs and Mālikīs impose retaliation

152

Criminal Act of 1991, art. 28 (2).

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on the culprit.153 The private prosecutors can, according to Shāfiʿīs and Mālikīs (at least in their earlier writings), execute the offender themselves. In order to avoid excess, however, the execution should be supervised by officials of the state. Later Mālikī and Shāfiʿī jurists concluded that the execution should be left to an official hangman. In summary, the Criminal Act of 1991 skillfully reasserted the state’s prerogative to punish. However, execution by the sword, as taught by Ḥanbalīs and Ḥanafīs, was replaced by hanging. Concurrently, it can claim to have relied on the fiqh by adopting retaliation as the appropriate method of execution, as proposed by two of the four Sunnī schools. This, however, has little effect on actual practice. Homicide within a Family and the Inheritance of qiṣāṣ A case which was presented for review by the Supreme Court in 1996 illustrates the complexity of the rules for the inheritance of qiṣāṣ when the killer is among the group of heirs.154 The details of the case are as follows: the general criminal court of Khartoum sentenced a man to execution by hanging for intentional homicide (of his half-brother).155 The conviction as such was supported, in a first review, by the Supreme Court, but was sent back to the criminal court for a revision of the punishment because the heirs of the victim included the father of the accused and the killer himself (because the man had killed his own half-brother). The father, however, died after the killing and before the original verdict. Thus, when the private prosecutors were heard, the father (of the killer and the victim alike) were already dead. Subsequently, the trial court heard the remaining living heirs, who did not pardon the culprit and opted for qiṣāṣ. The original verdict (death by hanging) was based on this decision of the heirs. When the trial court heard the heirs for the second time, after the case had been returned to it by the Supreme Court, the result was different. At this time, the mother of the defendant pardoned him on her own behalf and on behalf of one of her underage sons, while the rest of the heirs insisted on qiṣāṣ. The trial court then issued a new judgment, and sentenced the killer to a prison term and the payment of diya and thus revoked the earlier qiṣāṣ punishment. While this second sentence of the trial court was supported by the court of appeal, the heirs of the victim who had opted for qiṣāṣ appealed to the Supreme Court 153 154

155

El Baradie, Gottes-Recht und Menschen-Recht, 139. Government of the Sudan vs. Maḍawī Muḥammad Aḥmad ʿAbbās, sljr (1996), no. 1996/ 64. For a case which was tried under the Penal Code of 1983 and on which similar conclusions were reached, see, Government of the Sudan vs. Faḍl Allāh al-Samānī Aḥmad ʿAlī, sljr (1989), no. 1987/80. Criminal Act of 1991, art. 130 (2).

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on the grounds of Article 32 (1) of the Criminal Act of 1991, which specifies that “the relatives of a victim entitled to retaliation (qiṣāṣ) are his heirs at the time of his death.” Thus, the Supreme Court had to answer the following question: If someone with the right to qiṣāṣ or pardon dies, is this right transferred to his heirs? The Supreme Court answered this question in the affirmative. In the case at hand, the father died before he articulated his right to qiṣāṣ or pardon. The mother then inherited these rights from him and therefore had the right to pardon. In addition, the Supreme Court reasoned, there is another reason for remitting the qiṣāṣ: the killer himself had inherited a part of the right to qiṣās or pardon from his father. To support their reasoning, the judges quoted ʿAbd al-Qādir ʿAwda: “… [the right to qiṣāṣ] is remitted if the killer inherits all or part of it.”156 The judges further quoted: “… and if the person who has the qiṣāṣ dies … then it [the qiṣāṣ] is inherited by the daughters and mothers. They have the right to pardon or to [demand] qiṣāṣ as if they were all one agnatic group.” Thus, the Supreme Court concluded that (a) the right to qiṣāṣ or pardon is indeed inheritable, (b) this right was partially inherited by the killer himself, and partially by the mother and her underage son after the death of the father, (c) the Criminal Act of 1991 stipulates that a pardon can be given by either the victim157 or (at least) one of his heirs, either with or without compensation158 and that therefore the pardon given by the mother and her underage son was legally valid (nāfidh). As a consequence, the Supreme Court decided to confirm the second sentence of the trial court, which remitted the qiṣāṣ. Equivalence in the Supreme Court A case concerning homicide and involving non-Muslims illustrates how the Sudanese Supreme Court established the equivalence (kafāʾa) of Muslims and non-Muslims in cases of homicide under the Criminal Act of 1991.159 The case deals with the intentional killing of a Christian by a Muslim and the ensuing question of whether qiṣāṣ can be applied against a Muslim who kills a nonMuslim. The facts of the case are as follows: a certain Majdī ʿAbd al-Majīd Aḥmad was sentenced to death by the general criminal court in Omdurman North according to Article 130 (1) of the Criminal Act of 1991 (intentional homicide) for stabbing his father to death with a knife. After the confirmation of the

156 157 158 159

Compare ʿAwda, al-Tashrīʿ, 2:169. The victim, in this context, is the victim of bodily harm. Criminal Act of 1991, art. 31 (b). Government of the Sudan vs. Majdī ʿAbd al-Majīd Aḥmad, sljr 85/1997.

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sentence by the appeals court, the case was referred to the Supreme Court, which, according to Article 181 of the Criminal Procedure Act of 1991, must review all cases involving capital punishment, amputations, and life sentences. ʿAbd al-Majīd Aḥmad, whose father was Christian, had been thrown out of his father’s house following an ongoing dispute about his drug consumption and after he stole money from his father. He then converted to Islam and the rift between them deepened. The son then bought a knife and after his father returned home in his car, the son stabbed him to death. According to the Supreme Court, the crime and the criminal intent of the perpetrator were proven by the unretracted confession of the culprit and the testimony of a witness under oath. Moreover, the crime itself—the fact that ʿAbd al-Majīd Aḥmad stabbed his father five times—was interpreted as sufficient proof of his criminal intent to kill. Since neither diminished criminal responsibility nor attenuating circumstances were recognized and the private prosecutors160 insisted on their legal right of qiṣāṣ, the Supreme Court confirmed the death penalty. At least two important questions pertaining to qiṣāṣ must be considered here. First, the question arose as to whether qiṣāṣ can be executed on a descendant who killed an ascendant, and second, whether qiṣāṣ is applicable against a Muslim who takes the life of a non-Muslim. As to the first problem, the judges of the Supreme Court referred to it only briefly; they merely stated that the fuqahāʾ agree that a son can be subject to qiṣāṣ for killing his father, but the reverse is not true. The Criminal Act of 1991 indeed only remits retaliation “where the victim or his heir is an offspring of the offender,”161 but not in the opposite case. In the fiqh, the majority opinion of Ḥanafīs, Shāfiʿīs, and Ḥanbalīs subscribes to the same view, while Mālikīs maintain that a father who kills his son is liable to qiṣāṣ,162 if intentional homicide is proven.163 In the case of a descendant intentionally killing his or her ascendant, qiṣāṣ is thus possible according to the fuqahāʾ. In other words, the Sudanese Criminal Act of 1991 and the Supreme Court judgment under discussion here are in harmony with the fiqh.

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161 162 163

The Supreme Court decision does not mention who the private prosecutors were. However, it was mentioned that the deceased had several sons. The son, who killed his father, cannot inherit the right to qiṣāṣ. Criminal Act of 1991, art. 31 (a). In their explanatory statement, the Supreme Court judges omit this Mālikī minority view. Al-Jazīrī, al-Fiqh, 5:213–214; Bambale, Crimes and Punishments, 92; and El-Awa, Punishment, 80–81.

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With reference to the second issue, the intentional killing of a non-Muslim, in this particular case a Christian, by a Muslim, reveals a different situation. The Supreme Court referred to Article 130 (2) of the Criminal Act of 1991, which allows for death by retaliation or if it is remitted, then diya for “… whoever commits intentional homicide …” The Criminal Act of 1991 thus does not remit the qiṣāṣ when the killer is Muslim and the victim is a non-Muslim. As a matter of fact, it places Muslims and non-Muslims on a par.164 Before referring to the laws in force, the Supreme Court acknowledged the difference of opinion among the fuqahāʾ of the four schools with regard to this matter. While the majority of Mālikīs, Shāfiʿīs, and Ḥanbalīs rule out the execution of qiṣāṣ against a Muslim for intentionally killing a non-Muslim because of the lack of equivalence (kafāʾa), Ḥanafīs do not concur. They maintain that being a Muslim does not remit the retaliation for the culprit and that indeed a Muslim can be executed by way of qiṣāṣ for intentionally taking the life of a non-Muslim.165 While the majority of schools argue that there is no equivalence between the perpetrator and the victim, the Ḥanafīs point out that the relevant Qurʾānic verse (2:179) simply declares that qiṣāṣ is the punishment for intentional homicide, irrespective of the religion of perpetrator and victim.166 We observe that in substantiating its judgment, the Supreme Court adopted the legal opinion of one school only, that is, a minority opinion. Except for quoting a short Qurʾānic verse and pointing out that the Qurʾān does not distinguish between the Muslim and the non-Muslim, the judges did not delve further into Ḥanafī reasoning concerning this question. They do, however, point out that the wording of article 130 (2) on intentional homicide is unequivocal and does not make any reference to the religion of the killer. Thus, by closely following the meaning of article 130 (2) and by using the Ḥanafī minority opinion as corroboration, the Supreme Court clearly establishes that the concept of equivalence, with regard to Muslims and non-Muslims, plays no role in homicide cases.

164 165 166

Criminal Act of 1991, art. 31, enumerates the reasons for the remittance of retaliation (qiṣāṣ); the religion of the culprit is irrelevant. See al-Jazīrī, al-Fiqh, 5:220–221. Ibid. and El-Awa, Punishment, 79.

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Semi-Intentional Homicide The Penal Code of 1974 recognized six cases167 in which culpable homicide was deemed semi-intentional homicide.168 These were copied into the Penal Code of 1983 without further supplementation. Illustrative examples, however, which guided the judges, were suppressed. The Criminal Act of 1991 lists all six cases from the Penal Code of 1974 and the Penal Code of 1983169 of semiintentional homicide and supplements them with three more. These are examined here selectively, with special attention to their relationship to the fiqh. Therefore, according to Article 131 of the Criminal Act of 1991, culpable homicide is deemed semi-intentional homicide, inter alia, in the following cases. Homicide under the Influence of Compulsion of Threat of Death Similar to the provisions on “consent,”170 Article 13 (1) of the Criminal Act of 1991 states that “anyone compelled to do an act by coercion or by threat of death or imminent grievous harm to his person or family … who cannot avoid it by any other means, shall not be deemed to have committed an offense.” While Article 13 (1) thus recognizes coercion as a factor exempting the coerced person from punishment, Article 13 (2), however, makes an important qualification: “Compulsion shall not justify causing death or grievous harm ….” Here the Criminal Act of 1991 follows earlier codes which likewise recognized coercion and exempted murder and offenses against the state.171 However, Article 24 of the Penal Code of 1974 and the Penal Code of 1983 did not list coercion as a case in which (culpable) homicide was not considered murder/intentional homicide.172 While all three codes define murder/intentional homicide under duress as an offense, it remains unclear whether the coercion was supposed to have any mitigating effect on punishment or whether, as the texts suggests, the death

167 168 169 170

171 172

The Penal Code of 1924 recognized five. The case, “mental subnormality due to a mental retardation” was added in the Penal Code of 1974. For a discussion of these, see above. The wording differs slightly, but not substantially. The Criminal Act of 1991, like the Penal Code of 1983, does not give any specific examples to illustrate cases. Under the Criminal Act of 1991, art. 3, we read that consent: “… means acceptance, and it shall not be deemed consent that which is given by: (a) a person under the influence of compulsion or mistake of fact where the person doing the act knows that consent was given as a result of such compulsion or mistake; or (b) a person who is not an adult; or (c) a person unable to understand the nature or consequence of that to which he has given his consent by reason of mental or psychological instability.” Compare in the Penal Codes of 1924, 1974, and 1983, art. 53. Compare in the Penal Codes of 1924, 1974 and 1983, art. 249.

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penalty for murder/intentional homicide was to be imposed. The Criminal Act of 1991 filled this lacuna by stating, in Article 131 (2) (c), that culpable homicide is deemed semi-intentional, in cases in which “the offender commits culpable homicide when influenced by the threat of death.” It thus makes it clear that a conviction for intentional homicide is not possible because duress is considered a mitigating circumstance that leads to a conviction under the category of semi-intentional homicide.173 It should be noted that the penalty for homicide under duress in the Criminal Act of 1991 is considerably lighter than in all the earlier codes. While the Criminal Act of 1991 envisions a maximum prison term of seven years without prejudice to the right of diya, the Penal Code of 1983 implicitly174 classified it under intentional homicide, thus allowing for capital punishment as a maximum penalty. In the fiqh there is debate about whether coercion is admissible as a defense. When a forces b to kill c, then, according to Abū Ḥanīfa, qiṣāṣ is imposed on a; according to Abū Yūsuf, neither a nor b will be subject to qiṣāṣ.175 According to Mālik, Aḥmad b. Ḥanbal, and the majority opinion of the Shāfiʿīs, qiṣāṣ must be imposed on a and on b, because a is the cause that led to the killing and b, the one forced, is the direct perpetrator of the wrongful killing of the victim, though he did it in order to protect his own life.176 Mālik also considers a liable to qiṣāṣ if the compulsion comes from a person in authority. Thus, a father should be sentenced to death for forcing his son to commit homicide and the son is to be executed if he is adult. The same principle is applied to a teacher and his pupil, and a master and his slave.177 Then, to what degree can the provisions of the Criminal Act of 1991 be regarded as rooted in the fiqh? From the above it is evident that there is a certain contradiction between the majority of schools and the Criminal Act of 1991 insofar as the leading opinions of all schools envision qiṣāṣ for either the “coercer” or the “coerced” or even both. In summary, the Criminal Act of 1991 takes a considerably more lenient stand, not only in comparison with the

173 174 175 176

177

With regard to the one coercing the other, he “shall be responsible for it [that is, the crime] as if he has committed it alone ….” See Criminal Act of 1991, art. 23. As mentioned above, the Penal Codes of 1924, 1974, and 1983 do not contain a specific article relating to homicide under duress. ʿAwda, al-Tashrīʿ, 2:132. See ibid., 2:131–132 and likewise al-Jazīrī, al-Fiqh, 5:223–226; Ḥassūna, Jarāʾim al-qatl, 141– 148; and Peters, Crime and Punishment, 24. In contradiction to ʿAwda, al-Jazīrī, and Peters, Schacht writes that Mālik and Aḥmad b. Ḥanbal envision qiṣāṣ only for ‘a.’ See Schacht, “Ḳatl,” 4:770. Al-Jazīrī, al-Fiqh, 5:223–226.

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fiqh, but also in relation to earlier codes in which duress was not explicitly recognized as a mitigating factor in homicide cases. Homicide with the Consent of the Victim Article 131 (2) (e) of the Criminal Act of 1991 states that homicide is deemed to be semi-intentional in cases in which “… the offender commits culpable homicide with the consent of the victim.” The fuqahāʾ agree that in Islam the human being is inviolable and therefore suicide, the harming of oneself or giving someone else permission to hurt or kill oneself are forbidden (ḥarām).178 However, they disagree on the penal and other consequences of killing a person with his/her consent. In the Ḥanafī school we find two main opinions. The first argues that the consent of the victim causes both qiṣāṣ and diya to lapse. The second says that consent causes the qiṣāṣ to lapse, but the necessity to pay diya remains. Among the Mālikīs, the dominant opinion is that the permission to kill does not render the deed as such permissible and does not cause the punishment to lapse, even if the victim exculpates the perpetrator in advance. According to Mālikī reasoning, the victim, since the human being is inviolable, cannot absolve the perpetrator, who, in turn, is to be held responsible for intentional homicide. However, the adherents of this opinion differ about what the punishment should be. Some believe it should be qiṣāṣ, others think that the permission given by the victim introduces a legal uncertainty (shubha), which in consequence averts qiṣāṣ and makes diya compulsory. Among Shāfiʿīs there are two opinions. First, that the permission does not make the deed permissible but it does cause the punishment to lapse and therefore neither qiṣāṣ nor diya are applicable. The second opinion sees the permission as a legal uncertainty, which averts qiṣāṣ and makes diya compulsory. A minority opinion among Shāfiʿīs does not consider the permission a shubha and therefore holds that qiṣāṣ is the necessary punishment. Finally, Aḥmad b. Ḥanbal argues that the perpetrator of the killing is not subject to a punishment because it is the right of the victim to remit the punishment and that the consent to be killed is equivalent to remitting the punishment. In summary, the fuqahāʾ disagree about the nature of the consent of the victim and its consequences. Some regard consent to killing as equivalent to an advance pardon which, in turn, causes the punishment and compensation, that is, qiṣāṣ and diya, to lapse. Others do not deem consent to killing an advance pardon, because a pardon for homicide requires, as a precondition, the existence of a homicide. According to this reasoning, if a pardon is granted

178

Compare Ḥassūna, Jarāʾim al-qatl, 163–168.

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before the homicide has been committed, it is invalid. However, proponents of this opinion disagree on whether the punishment should be qiṣāṣ or diya.179 From the disagreements of the fuqahāʾ described above it is clear that in the case under discussion several solutions could be justified as being based on or compatible with the fiqh. We should note that the Criminal Act of 1991 generally recognizes consent (of the “victim”) as decisive in not deeming an act an offense (Art. 17 (1)), but exempts “acts which are likely to cause death or grievous harm” (Art. 17 (2)). Article 131 (2) (e) stands, first, in the tradition of the Penal Codes of 1924 and 1974, in which Article 249 (5) deems consent as one of the reasons to classify culpable homicide as not equal to murder. However, at that time the wording was more specific. The article stated that only the consent of persons older than eighteen years would render the act culpable homicide and not murder. In the Criminal Act of 1991 it remains unclear whether the consent of a seventeen-year-old, for example, would have the same mitigating effect. According to the Penal Code of 1924 and Penal Code of 1974, homicide with the consent of a seventeen-year-old would be deemed murder. As to remitting qiṣāṣ, the Criminal Act of 1991 is in harmony with the majority of the schools. Apart from some Ḥanafīs and Ḥanbalīs, all the other schools are in favor of imposing diya after qiṣāṣ has been remitted. In other words, Article 131 (2) (e) is in harmony with opinions in the Ḥanafī, Mālikī, and Shāfiʿī schools, but not the Ḥanbalī school. Although, we should note that, given the disagreement of the fuqahāʾ, the exemption from qiṣāṣ and diya could also be justified in the fiqh. Homicide without Premeditation during a Sudden Fight Article 131 (2) (h) classifies homicide “without premeditation during a sudden fight and without his [that is, the offender] taking undue advantage or acting in a cruel or unusual manner” as a case in which culpable homicide is considered semi-intentional homicide. This case clearly has its roots not so much in the fiqh but in the Penal Codes of 1924, 1974, and 1983, which, under Article 249 (4), gave almost literally the same definition for a case of culpable homicide not amounting to murder. The fuqahāʾ did not develop a special theory on homicide during a sudden fight. However, they do mention a variety of precepts which—if combined— can be construed as a theory on the topic.180 179

180

Schacht, “Ḳatl,” 4:769, writes, “If someone kills another by his request or with his permission there is neither ḳiṣāṣ nor obligation to pay diya.” Given the many differing legal opinions quoted above, this summary seems to overly simplify the issue. Compare Ḥassūna, Jarāʾim al-qatl, 198–200.

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The Ḥanafīs and a minority of Ḥanbalīs distinguish between intentional homicide and intentional bodily harm on the one hand, and crimes that result from an unintentional fight on the other hand. In both cases, the offender is responsible for the result of his acts. The adherents of this opinion distinguish between the intention to commit the act (leading to the death of the victim) and the intention to kill. If the culprit intends the (lethal) act as such and intends to kill the victim, then the killing must be considered intentional homicide. If only the first intention exists, that is, the intention to commit the act as such, but without the intention to kill, then the crime is considered semiintentional homicide. In order to determine criminal responsibility, the jurists who support this line of thought stipulate that the act (leading to the death of the victim) was intended and also committed with the knowledge that the act is prohibited. If this precondition is fulfilled too, the perpetrator is fully responsible for the consequences of his act. Thus, whoever hits another person with only the intention of hitting that person, that is, he did not intend to kill him, and his victim dies, he is responsible for semi-intentional homicide and not for beating.181 Finally, Shāfiʿīs and the majority of Ḥanbalīs also hold that the perpetrator is fully responsible for a homicide that results from a fight. They consider him responsible for intentional homicide if he intended the act and also intended to kill his victim. If he intended the act only, but not to kill his victim, and the act normally does not lead to death, then they consider him responsible for semi-intentional homicide only. Mālik, too, holds that the culprit is responsible for the consequences of his act, whether he intended or expected them or not.182 He recognizes acts which are intentional, but do not, however, entail retaliation, such as when two men are fighting (that is, they are engaged in a sudden fight without any intention to kill) and one gets hold of the other one’s foot and throws his opponent to the ground, thereby causing his death. In that case, diya for accidental homicide is due, and must be paid by the solidarity group (ʿāqila). If the killer intended (and started) the fight (that is, in contrast to a sudden fight), and throws down his opponent and the opponent dies, qiṣāṣ is due.183

181 182 183

Compare ibid., 199. Ibid., 200. Ibid., 198.

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Supreme Court Decisions and the Mitigating Effect of a Sudden Fight In a decision from 1998184 which dealt with a case of homicide that was allegedly the result of a sudden fight, the Supreme Court judges argued that the concept of a “sudden fight” as a mitigating factor could not be traced back to the fiqh. This is remarkable, insofar as Supreme Court decisions normally do not point out discrepancies between the applicable penal law and the fiqh. In this case, Article 131 (2) (h) of the Criminal Act of 1991 explicitly defines a “sudden fight” as one of the mitigating factors that qualifies homicide as semi-intentional. Unfortunately, the Supreme Court judges did not disclose or discuss how they reached their conclusion, nor did they quote sources. However, since the law is unequivocal, but cannot rely on the fiqh, the Supreme Court judges decided that the law on a “sudden fight” should be interpreted in a restrictive manner, in order not to prevent the application of qiṣāṣ.185 In a second case from 1999, a sudden fight played a decisive role.186 The accused was originally sentenced to hanging until death, according to Article 130 of the Criminal Act of 1991, for hitting his victim on the head several times, and thus killing him, with a stick following a dispute about the land of the victim. The culprit had confessed and the only evidence the court could rely on was this confession and his statements during the trial. When reviewing the case, the Supreme Court concentrated on two main questions: First, could the case be treated under Article 131 (semi-intentional homicide instead of Article 130, intentional homicide) by invoking one of the reasons provided for in this article; and second, were the statements of the culprit acceptable as evidence, given that there were no other witnesses and no other evidence available. The Supreme Court concluded that the confession and the subsequent statements of the defendant were—despite some contradictions on minor details—plausible and therefore credible, especially with regard to the sudden fight which had preceded the homicide. As to the second question, the Supreme Court stated the conditions under which the testimony of the culprit is acceptable: it must be clear that his testimony is indeed the only evidence available. Further, his testimony must be in conformity with logic 184 185

186

Government of the Sudan vs. Bītr Dīnq Shūl, sljr (1998), no. 1998/262. Interestingly, the decision contains another opinion, drafted by the editor of the sljr, insisting that the reasoning of the majority of the fuqahāʾ agrees with the wording of the Criminal Act of 1991, with regard to the concept of a “sudden fight.” This editorial note is a rather rare incident, since Supreme Court decisions normally only contain legal opinions drafted by the Supreme Court judges responsible for the case in question. Government of the Sudan vs. ʿAlī l-Rīḥ Muḥammad ʿAbdallāh, sljr (1999), no. 1999/202.

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and reason and the normal course of events. In the case at hand, the Supreme Court mentioned two additional factors that led to its decision to amend the applicable article. First, the court reflected on the meaning of the number of blows meted out by the defendant during the sudden fight. It emphasized that the number of blows alone is of minor importance. The decisive question is whether the violent means employed ended the fight or whether the defendant continued to beat the victim after he had fallen onto the ground. The judge accepted the account of the defendant, who said that he had stopped beating the victim immediately after he had fallen. Second, the court took into account, in favor of the defendant, the fact that he had informed his family (who in turn informed the police) of the event. If he had kept quiet, the court reasons that it would have been very difficult to find the culprit, given that the incident took place at night. Based on these arguments, the Supreme Court decided in a majority decision to sentence the defendant to a five-year prison term under Article 131,187 instead of the original death penalty by hanging. The decision further specifies that the payment of diya is due on the condition that it be obtained through civil jurisdiction. The leading opinion of this decision was accepted by three of five judges of the respective court. It is noteworthy that the minority opinion held that the defendant could not invoke a “sudden fight” as a mitigating circumstance. The judge who formulated the minority opinion pointed out that the defendant had repeatedly trespassed onto the land of the victim and had even been sentenced to pay a fine to him. In brief, since the two men had clashed several times for similar reasons, this last, lethal, encounter was not quite as surprising as the majority of judges assumed. Further, the number of blows (seven) that caused the lethal skull fracture, and the fact that the victim was twice as old as the killer, induced the two opposing judges to deny any mitigating circumstances and to support the original death sentence. Since, as we have outlined above, the fuqahāʾ did not develop a theory of a “sudden fight” in the context of homicide, the judges do not refer to the fiqh when they discuss its possible mitigating effects. As mentioned above, Article 131 (2) (h) of the Criminal Act of 1991 is directly derived from the earlier criminal legislation, prior to the Islamization of the legal code. All three Penal Codes (1924, 1974, and 1983) had maintained that it was immaterial which party first provoked the other or committed the first assault. This explanation was omitted in the Criminal Act of 1991, in which the surviving party was or is guilty of either “culpable homicide not amounting to murder” (as in the Penal Codes of 1924 and 1974) or of “semi-intentional homicide” (as in the Penal Code of 1983

187

The decision does not mention that the applicable art. is 131 (2) (h).

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and Criminal Act of 1991). If one follows the text of the Criminal Act of 1991, the issue of whether the victim provoked the perpetrator or vice versa is still not significant. The judges who invoked the mitigating factor of a “sudden fight” tried to determine, in line with the Penal Code of 1974, whether the killer took undue advantage (that is, beat his victim after he had fallen on the ground) or acted in a cruel manner. The decision therefore strongly illustrates the strong connection between the Islamized codes of 1983 and 1991 and their secular predecessors. Homicide under the Influence of Mental Disturbance Insanity in the Criminal Act of 1991 The Criminal Act of 1991 explicitly exempts from criminal responsibility any person who is incapable of judgment due to permanent or temporary insanity or mental infirmity at the time of the offense (Article 10 (a)). Note that the wording as to its content is essentially unchanged from the earlier codes of 1924, 1974, and 1983.188 Likewise, none of these codes deemed these persons to have committed an offense at all. Article 131 (2) (i) of the Criminal Act of 1991 further stipulates that “offenders (committing) culpable homicide under the influence of mental, psychological, or nervous disturbance which manifestly affects his ability to control his acts” are deemed to have committed semi-intentional homicide. Insanity and Criminal Responsibility in the fiqh The sharīʿa considers that an adult person is responsible for his (criminal) acts only if he/she is endowed with reason and understanding (idrāk) and freedom to choose (mukhtār). If one of these two qualifications is not present, then the legal capacity (taklīf ) is absent.189 If an offense is committed by a person deemed to be insane, reason (idrāk) is not assumed. Thus, the defendant is not blameworthy, the offense cannot be imputed to the offender,190 and his

188

189 190

See Penal Code of 1924 and Penal Code of 1974, art. 50 (a), and Penal Code of 1983, art. 50. The Criminal Act of 1991 further lists “sleep,” “unconsciousness” (10 (b)) and the “taking of intoxicating substances or drugs (10 (c)) as a result of coercion or necessity” as reasons that make the punishment lapse. The first two reasons were not mentioned in the earlier codes. In the Penal Code of 1983, this article was changed. Reasons like sleep, and drugs/intoxicating substances were not mentioned at all in this article. Instead it provided for punishment of the person who helped or abetted the insane person to commit a crime. Ḥassūna, Jarāʾim al-qatl, 208. Peters, Crime and Punishment, 20–21. Persons suffering from mental disorders of any kind may possess and inherit. See Ḥassūna, Jarāʾim al-qatl, 209.

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criminal conviction is thus precluded. The fuqahāʾ recognize several degrees of insanity or conditions associated with it; the most important are listed below. The loss of one’s ability to understand (idrāk) can be complete (tāmm) and permanent (mustamirr), in which case it is called complete insanity ( junūn muṭbiq). The person suffering from complete insanity is criminally not responsible.191 Further, insanity can be complete, but not continuous; in this case, it is called discontinuous or temporary insanity ( junūn mutaqaṭṭiʿ). In such a case, a person suffers at times and completely loses his ability to understand, while at other times the person is in full command of his reason. The first condition is considered the same as in complete insanity, except that it is temporary. Therefore, a person who commits a crime during a state of temporary insanity is not criminally responsible while this condition lasts. However, once his ability to understand is restored, he is responsible for crimes committed while he is recovered.192 Moreover, the fuqahāʾ recognize a state of partial insanity ( junūn juzʾī), in which a person loses the capacity to understand matters related to a certain subject, but fully understands matters apart from this subject. Someone who suffers from partial insanity is not criminally responsible for the domains he does not understand, but is responsible in relation to the matters about which his reason works.193 In connection with insanity, the fuqahāʾ and modern jurists discuss a range of other conditions. Most of these conditions, however, seem to remain untested in the Supreme Court, in terms of their relevance as a defense in insanity cases.194 191 192 193

194

ʿAwda, al-Tashrīʿ, 1:585–586. As to the ensuing civil responsibility and financial liability, see below. Ibid., 1:586. Partial insanity and temporary insanity can also overlap. Nevertheless, the criminal responsibility of the perpetrator is the same as in all the other cases discussed. If reason had returned to the culprit when he committed the crime, he is criminally responsible, otherwise not. See Ibid., 1:586–587. Furthermore, the state of idiocy or feeble-mindedness, dementia (ʿuth) is subsumed under insanity in a wider sense and with a bearing on responsibility. The demented person (maʿtūh) is described as someone who comprehends little (qalīl al-fahm), speaks confusedly, and generally understands less than average people. Thus, he suffers from a lesser degree of insanity. Epilepsy and hysteria are not discussed by the fuqahāʾ, as these are clinical pictures described for the first time in modern times. However, by way of analogy, modern Muslim jurists like ʿAbd al-Qādir ʿAwda—like non-Muslim jurists— discuss both conditions (epilepsy and hysteria) under insanity. The criminal responsibility

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Thus, the watershed for the legal consequences of cases of insanity or conditions associated with it is the same: criminal responsibility ceases if the capacity of comprehension (idrāk) is absent.195 The fuqahāʾ agree, however, that financial liability persists, since it stems from causation and not from being at fault, that is, from causing the damage intentionally or by negligence.196 However, they disagree on which kind of diya is to be paid in cases of homicide and bodily harm committed by someone while in a state of insanity. The disagreement is based on differences related to how crimes of the insane should be qualified. Mālik, Abū Ḥanīfa, and Aḥmad b. Ḥanbal are of the opinion that the insane cannot commit homicide or intentional harm, and that his deed, therefore, must be qualified as accidental. Al-Shāfiʿī, in contrast, sees the insane as able to commit both crimes intentionally. As a consequence, opinions differ with regard to the type of diya to be paid. In intentional crimes, the enhanced diya (diya mughallaẓa) must be paid by the perpetrator, while in cases of accidental homicide and harm the lesser diya (diya nāqiṣa) must be paid solely by the solidarity group (ʿāqila) of the culprit or by the solidarity group and the culprit together.197 From the above it is clear that the notions of insanity and diminished responsibility, as present in the Criminal Act of 1991, have their roots in the penal codes of the colonial and post-colonial eras. However, since various degrees of insanity are also an important subject in the deliberations of the fuqahāʾ, we try to determine to what extent the relevant articles of the Penal Code of 1983 and the Criminal Act of 1991 are compatible with the fiqh. As we note above, the Penal Code of 1983 stipulated “capital punishment or diya” as punishment for semi-intentional homicide (qatl shibh al-ʿamd). This thus diverged substantially from earlier codes, as it made capital punishment compulsory in cases in which private prosecutors did not agree to settle for blood

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196 197

of epileptics and hysterics is deemed to be the same as those of the insane if reason (idrāk) is lost or weak, as in the case of an idiot (maʿtūh). Both conditions are judged like the person acting under duress (mukrah) if the epileptic or hysteric enjoy reason but have lost their free will (ikhtiyār). If they have lost neither reason nor free will, they are deemed fully criminally responsible. ʿAwda, al-Tashrīʿ, 2:588. Schizophrenia is treated according to the general pattern. If the condition is such that the defendant does not understand that he is committing a crime, he is considered insane. See ʿAwda, al-Tashrīʿ, 2:588–589. It is interesting to note that contemporary authors like ʿAbd al-Qādir ʿAwda discuss conditions that were first described in modern times and place them in a legal context derived from the fiqh. See Peters, Crime and Punishment, 19. ʿAwda, al-Tashrīʿ, 1:594.

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money; thus, with regard to punishment, it effectively made no difference whether the charge was intentional or semi-intentional homicide. The only difference between the punishments of the two crimes relates to the fact that in the case of intentional homicide, private prosecutors were explicitly mentioned, while in the case of semi-intentional homicide they were not. It thus remained unclear whether this lacuna was intentional or accidental. It was also unclear whether or not the private prosecutors could claim diya and cause the capital punishment to lapse. At any rate, the logical relationship between the crime and its corresponding punishment—here a milder punishment for a lesser crime—was eliminated. Apart from its divergence from the example of earlier codes, the harsh punishments meted out for semi-intentional homicide were not compatible with the reasoning of the fuqahāʾ either. While it seems unduly harsh to apply capital punishment in all cases of semi-intentional homicide, it is certainly even more so in the case of someone who is mentally retarded or mentally abnormal. In fact, between 1983 and 1991, we could not find any case of the death penalty being imposed under Article 249 (6) and confirmed by the Supreme Court.198 The Criminal Act of 1991 thus tried to remedy the flaws in the earlier codes, first, by stipulating a rather mild prison term of seven years as a taʿzīr punishment, without prejudice to the right to diya. While this solution did not answer the relevant question of why a mentally retarded perpetrator should go to prison at all (instead of receiving psychiatric care), it moderated the likewise rather harsh life term stipulated as a maximum punishment in the Penal Codes of 1924 and 1974. The lighter punishment also restored the balance between a crime and its punishment, to a certain degree. Second, the wording of 131 (i)199 of the Criminal Act of 1991 was changed, clearly in order to highlight the difference between insanity leading to impunity (Article 10 (a)) and to contrast a state of “mental, psychological, or nervous disturbance” leading to the qualification of homicide as semi-intentional homicide. As noted, the wording of the earlier codes was such that there was only a thin line between permanent or temporary insanity and mental infirmity on the one hand and mental retardation, mental abnormality or a disease of the mind on the other hand. Thus, we can draw a preliminary conclusion, that, regarding mental disturbance as a mitigating factor in homicide 198 199

This, of course, does not mean such cases do not exist, since only a fraction of cases reviewed by the Supreme Court are published. Art. 131 (i) reads: “… culpable homicide shall be deemed to be semi-intentional … (i) Where the offender commits culpable homicide under the influence of mental, psychological, or nervous disturbance which manifestly affects his ability to control his acts.”

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cases, the Criminal Act of 1991 not only remedied an important deficiency of its 1983 predecessor, but by fine-tuning the wording to clearly distinguish it from insanity, it also removed a long-standing source of conceptual confusion that had led to unconvincing judgments in the past.200 A comparison of insanity in the fiqh and in Sudanese law before and including 1983 further shows that the relevant articles of the Penal Code of 1983 were mere adoptions of their English predecessors. We have seen that the harsh capital punishment for semi-intentional murder of the mentally retarded was incompatible with the fiqh. This obvious flaw was remedied in the Criminal Act of 1991, which made semi-intentional homicide by a mentally or psychologically disturbed person punishable by a taʿzīr punishment (up to seven years in prison) and recognized the financial liability of the perpetrator. We have shown above that the fiqh clearly envisages that in cases of semi-intentional homicide the victim’s heirs will receive financial compensation. To that extent, the Criminal Act of 1991 is compatible with the fiqh in this regard. As to the criminal responsibility of the mentally disturbed, the situation is more ambiguous. The wording of Article 131 (2) (i) cannot be easily traced to the different clinical pictures described in the fiqh, rather it seems to be an intended improvement on the predecessor codes. Most fittingly, it could be equated with the state of mind described in the fiqh as “weakness of judgment” (daʿf al-tamyīz).201 The person of “weak of judgment” can be likened to someone who is “under the influence of mental, psychological, or nervous disturbance which manifestly affects his ability to control his acts.” However, as we have seen above, in this case, as in all other cases associated with insanity, the fiqh only acknowledges two possibilities. Either the perpetrator was able to reason (mudrik) and free to choose (mukhtār), or he had lost one or both of these two qualities. If reason (idrāk) was present—and this is the quality in question here—full criminal responsibility ensues; if reason has been lost, the perpetrator is not criminally responsible. The concept of diminished responsibility with, as a result, a lesser

200 201

Compare Krishna Vasdev, The Law of Homicide in the Sudan (London: Butterworths, 1978), 85–127. Weakness of judgment (ḍaʿf al-tamyīz): According to the fiqh there is a group of persons whose intelligence and understanding is not the same as that of a normal person, yet it is not as deficient as that of the insane or the idiot. If they commit a crime, they are reasonable (mumayyiz) and understanding (mudrik), and therefore they are not exempted from punishment according to the fiqh. However, some fuqahāʾ deem this group to be eligible for a reduced punishment, while other commentators believe that a harsher punishment will deter them. Note that the concept of a “reduction of punishment” is not admissible in ḥudūd and qiṣāṣ cases. See ʿAwda, al-Tashrīʿ, 1:589.

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punishment or a substitute punishment, is, according to the overwhelming majority of the fuqahāʾ, only admissible in taʿzīr cases and not in ḥadd or qiṣāṣ cases as discussed here.202 Nevertheless, Sudanese legislators stipulated that diminished criminal responsibility in a case of homicide could lead to its qualification as semi-intentional homicide and entail a diminished punishment. In other words, Article 131 (2) (i) of the Criminal Act of 1991 is incompatible with the reasoning of the great majority of the fuqahāʾ. Accidental Homicide in the Criminal Act of 1991 In the Criminal Act of 1991, accidental homicide is defined203 as homicide that is not intentional or semi-intentional homicide and is caused by the offender by (1) negligence (ihmāl), (2) lack of caution (qilla iḥtirāz) or (3) an unlawful act ( fiʿl ghayr mashrūʿ). The punishment for homicide by accident, as introduced by the Criminal Act of 1991, is a prison term not exceeding three years, without prejudice to the right of diya.204 The Criminal Act of 1991 changed not only the definition of “accidental homicide” and its respective punishment, but it also, surprisingly, restored some concepts of criminal responsibility as defined in the earlier secular codes (the Penal Code of 1924 and Penal Code of 1974). The definition of the Criminal Act of 1991 includes negligence, which was punishable with a prison term of up to two years205—because it is the result of a blameworthy act—under the provisions of the Penal Code of 1924 and Penal Code of 1974, but only entailed diya under the Islamized Penal Code of 1983. Since accidental killing by negligence or lack of caution only entails diya in the majority opinion of the fuqahāʾ, the Penal Code of 1983 was already closely following their prescriptions. By re-introducing prison as a possible punishment, the Criminal Act of 1991 in fact partially restored penological precepts from the period prior to the Islamization of the penal code. We must note, however, that this change could also be justified from the point of view of the sharīʿa: qatl khaṭāʾ (that is, the mere causation of death) entails diya, however, if the killer acted unlawfully and by negligence or fault, then the state may impose a taʿzīr punishment.

202 203

204 205

Compare ibid., 1:589. See Criminal Act of 1991, art. 132. It should be mentioned that the official English translation of the Criminal Act of 1991, as published in the Arab Law Quarterly, is generally correct. However, in some instances, gross errors occurred. Thus, in the Arabic original qatl khaṭāʾ is translated as “homicide by negligence” which, as shown, misses the point. For a case of accidental homicide confirming the above principles, see Government of the Sudan vs. Ḥasan ʿUthmān ʿAbd al-Raḥmān, sljr (1997), no. 1997/138. Or with fine or both. See Penal Code of 1974, art. 256.

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For “accidental homicide by an unlawful act,” the Criminal Act of 1991 in fact reintroduces Article 255 of the Penal Code of 1924 and Penal Code of 1974, which, as shown above, had been dropped and not replaced in 1983. This reintroduction, however, differs from 1924 and 1974 in that it lowers the threshold of what kind of unlawful act leads to the accidental killing. The Penal Codes of 1924 and 1974 stipulated that an unlawful act leading to an unlawful killing had to be an act that was punishable with a prison term of one year or more. This threshold was directly related to, and served as a justification for, the relatively high prison term of up to a maximum of ten years for the accidental killing itself. In other words, while the Penal Code of 1924 and Penal Code of 1974 punished the offense discussed here rather harshly, the Criminal Act of 1991 lowered the threshold to include accidental killings as a result of an (unspecified) minor offense. Consequently, at the same time, it lowered the punishment for the accidental homicide that is the result of such an unlawful act to a prison term of up to three years only (and diya). In conclusion, we must note that all articles of the Penal Code of 1983 that made officials liable for the payment of diya in cases of accidental homicide were dropped in 1991. As a result, court and government officials who, under the Penal Code of 1983, were financially liable for committing accidental homicide as a result of their functions, were granted impunity according to the Criminal Act of 1991, as long as the perpetrator “is bound or authorized to do it by law … or … believes in good faith that he is bound or authorized to do so.”206 The accountability of court and government officials with regard to accidental homicide, which was introduced by the Penal Code of 1983, was thus removed, and the status quo ante was restored. Bodily Harm In comparison to the Penal Codes of 1974 and 1983, the articles related to bodily harm were largely simplified and reduced: in 1991 five articles suffice, where the predeccessor codes needed fourteen.207 Most, if not all the inconsistencies observed in the Penal Code of 1983 with regard to bodily harm were removed. Thus, the notion of the semi-intentional causation of wounds is now part of the Criminal Act of 1991. The notions of wounds and cutting of limbs were unified into one definition. The many variations of harm recognized in the Penal Code of 1974 and the Penal Code of 1983 were merged into one single article.208

206 207 208

See Criminal Act of 1991, art. 11, “Performance of duty and exercise of right.” See the Penal Code of 1974 and Penal Code of 1983, art. 271–284. Criminal Act of 1991, art. 142 (1) and (2).

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Concurrently, the formula “flogging, fine or prison,” with its discretionary character, was eliminated. Instead, it reintroduced prison terms that vary according to the gravity of the harm caused. The Criminal Act of 1991 distinguishes between wounds ( jurḥ) and harm (adhan). While the former refers to bodily harm, such as fractures, wounds, loss of an organ, punishable by qiṣāṣ or diya, the latter refers to causing pain or disease or harm by poison or drugs and is punishable by a taʿzīr penalty.209 Wounding someone is defined as causing another person to lose an organ, a mental function, a sense, a limb, a fracture or inflicting a wound in the body.210 By analogy to the articles on homicide, the articles on wounds are similarly categorized into intentional, semi-intentional, and accidental wounding. No further definitions are given, instead the code refers to the corresponding articles on homicide.211 The intentional causing of wounds is punished with retaliation (qiṣāṣ), provided all necessary preconditions are satisfied. If the preconditions are not satisfied, or qiṣāṣ is remitted (by the private prosecutor or for other reasons), intentional wounding is punished with a prison term not exceeding five years, or with a fine, or both, without prejudice to the right of diya.212 The same punishments were prescribed with the exception of qiṣāṣ, if the crime happened in one of the Southern states.213 Again, in analogy with homicide, qiṣāṣ is not applicable in cases of semi-intentional or accidental wounding. The maximum prison term is three years and one year respectively, in both cases without prejudice to the right of diya.214 The Criminal Act of 1991 further specifies the parts of the body and wounds subject to retaliation; this is stipulated in a list215 that cites which diya, full or partial, is applicable to the loss of a specific organ or sense.216 Most importantly, the Criminal Act of 1991 clearly stipulated the state’s prerogative to punish. The Penal Code of 1983 had originally treated intentional and accidental wounding or cutting of a limb as an affair to be settled exclusively between the culprit and the victim. As mentioned above, the possibility of a taʿzīr punishment was added only later in a criminal circular. The Criminal Act of 1991 explicitly reintroduced taʿzīr punishments, that is, maximum

209 210 211 212 213 214 215 216

Criminal Act of 1991, art. 142 (1) and (2). Criminal Act of 1991, art. 138 (1). Criminal Act of 1991, art. 138 (2). Criminal Act of 1991, art. 139 (1). Criminal Act of 1991, art. 139 (2). Criminal Act of 1991, art. 140 and 141. See “first list” attached to the Criminal Act of 1991. See “second list” attached to the Criminal Act of 1991.

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prison terms, which, in terms of their length, correspond to the gravity of the crime. Interestingly, the prison terms appear before diya and therefore are presented as the main punishment. Qiṣāṣ is the primary punishment for cases of intentional wounding only, and the taʿzīr punishments become applicable if qiṣāṣ has been remitted or the conditions for its implementation were not satisfied.217 Reasons for the Remittance of Retaliation in the Criminal Act of 1991 The Criminal Act of 1991 is also much more specific about the reasons for which retaliation may be remitted. In the Penal Code of 1983 these were not codified, rather they were determined later in Criminal Circular 94/1983. Reasons for which retaliation can be remitted are,218 (1) for cases in which “the victim or his relative is an offspring of the offender.” It is generally agreed in the fiqh that qiṣāṣ is remitted if the perpetrator is an ascendant of the victim;219 (2) qiṣāṣ is remitted, “if the victim or some of his relatives have pardoned [him] ….” This reason for the remittance of qiṣāṣ is also in accordance with the general precepts of the fiqh. The private prosecutors have the right to pardon the culprit. The forgoing can be pronounced without quid pro quo, or in return for the payment of the diya, as intended by the fiqh or as agreed upon between the two parties, that is, between the perpetrator of the crime and the heirs of the victim. In Sunnī fiqh,220 if only one of the heirs pardons the victim, the right of the remaining group of heirs to retaliation automatically becomes their right to receive blood money. (3) Qiṣāṣ is remitted if the offender becomes insane after the passing of the sentence of retaliation (qiṣāṣ) against him.221 Multiple Retaliation, Multiple Perpetrators, Abetment The Criminal Act of 1991 summarily regulates the question of multiple retaliation (taʿaddud al-qiṣāṣ) for the first time. According to Article 30 of the Criminal Act of 1991, “an individual shall be executed for a group and a group for an individual.” How this article translates into practice remains open. According to the majority view in the fiqh, however, in order to establish the criminal responsibility of a group, a plaintiff must specify whether the acts were committed 217 218 219 220 221

The provision in the Penal Code of 1974 which made female circumcision punishable was abolished in 1983 and was not reintroduced in 1991. Here we are only concerned with the reasons relevant to homicide. Ḥassūna, Jarāʾim al-qatl, 51 and El Baradie, Gottes-Recht und Menschen-Recht, 137. Shīʿī law follows the opposite approach. Retaliation can take place if at least one of the private prosecutors demands it. See Peters, Crime and Punishment, 44. Criminal Act of 1991, art. 31 (d).

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simultaneously or in succession. If the perpetrators acted simultaneously and with proven criminal intent and if the acts all would have been lethal if perpetrated separately, all of them can be sentenced to death. If they acted in succession, the first attacker is responsible of the death of the victim if he dies within one day after the attack. If the victim dies later, criminal responsibility accrues to the last attacker. Here, the Mālikīs take a minority point of view. They hold all those who are involved in the crime responsible, whether they directly caused the death or abetted the others. Thus, according to Mālikīs, a group of persons can be sentenced to qiṣāṣ for intentional homicide, if they jointly planned and carried out the crime.222 Concerning the treatment of more than one perpetrator in cases of intentional homicide, it is useful to look at the earlier penal codes. Article 259 of the Penal Code of 1974 punished abetment to murder relatively lightly, with a prison term of up to two years, or up to fourteen years if harm was caused. In its Islamized version in the Penal Code of 1983, abetment to suicide was maintained while abetment to murder was omitted as a separately defined crime.223 However, the whole section on abetment in the Penal Code of 1974 was copied into the Penal Code of 1983, and abetment to murder fell under this definition. According to this section (Article 84 of the Penal Code of 1974), and that subsequently adopted by the Penal Code of 1983, the abettor to intentional homicide would face the same punishment as the actual perpetrator of intentional homicide. In other words, by simply translating the wording of the Penal Code of 1974, the Penal Code of 1983—inadvertently or by design—adopted the minority opinion of the Mālikī school which, as described above, recognizes joint criminal responsibility, even if that person’s contribution to the crime, if taken separately, would not have led to the death of the victim.

∵ Our historical analysis shows that the Penal Code of 1983 and its provisions on homicide closely followed the earlier penal codes. However, in many cases the changes made in 1983 disrupted the close coherence between crime and punishment. Fine-tuned punishments, which reflected the gravity of the crime, 222 223

See Peters, Crime and Punishment, 28–30 and Muḥammad Abū Zahra, al-Jarīma wa-lʿuqūba fī l-fiqh al-islāmī (Cairo: Dār al-Fikr al-ʿArabī, 1998), 1:293–297. Penal Code of 1983, art. 259, changed titles and now reads “Punishment of attempted intentional homicide.” It adopted the generic text of the previous article 259 and added the ubiquitous “flogging, fine or prison” as a punishment. This article is an example of the technically rather unsatisfactory drafting of the new parts of the Penal Code of 1983.

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were replaced by summary punishments whose application, that is, the number of lashes, the amount to be paid, or the time to be spent in prison, was largely left to the discretion of the judge. Where fiqh-based punishments were introduced, at times they contradicted Islamic jurisprudence. Where legislators changed the definitions of a crime, often and at times substantial discrepancies can be observed with regard to the solutions offered in the fiqh. Given these discrepancies, it is no surprise that a great number of Supreme Court decisions on homicide were produced in the time between 1983 and 1991. While these decisions determined individual cases and served as precedents for similar cases, they did not reconcile inherent contradictions in and the incoherent character of the changes made in the Penal Code of 1983. The largely overhauled Criminal Act of 1991 addressed most of these incongruities and discrepancies. In the majority of cases, the Criminal Act of 1991 and its provisions on homicide are much closer to precepts found in the fiqh than the earlier code had been. However, traces of the penal codes prior to the Islamization process can still be detected. Crimes, such as heinous murder, for which standard rules regarding qiṣāṣ and diya do not apply, were abolished altogether, after their application proved difficult in practice. The death penalty, that is, the sentencing and its execution, remained a prerogative of the state despite the Islamization process. The state executes convicts by hanging. While according to the law the heirs of the victim have the choice of killing the offender “in the same manner in which he caused death, if the court deems it appropriate,”224 in practice, we did not find a single Supreme Court judgment that allowed the heirs of a victim to execute the death penalty themselves. While the death penalty is called qiṣāṣ, its practical implementation is not, in fact, different from that of non-Muslim countries that still apply the death penalty (by hanging). What distinguishes the practice in the post-Islamization period from its colonial predecessors is the right of the heirs to pardon the convicted person or settle for diya. Qiṣāṣ is also restricted with regard to bodily harm. A Supreme Court decision concluded that in the case of broken bones, qiṣāṣ cannot be applied because equivalence of the original fracture and the one to be inflicted as punishment cannot be guaranteed. I could not find any Supreme Court decisions that led to the application of qiṣāṣ for cases of bodily harm.225 In my interviews with 224 225

See Criminal Act of 1991, art. 28 (2) and 28 (3). This refers to my main source, the sljr, 1983–2007. There is, however, one exception. The Supreme Court decided that in the case of a broken tooth retaliation is possible. See Government of the Sudan vs. Ḥamza ʿAlī Kutainī, sljr (1985), no. 1405/188. I do not know whether this decision has been carried out.

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Supreme Court judges, all my interview partners insisted that qiṣāṣ for bodily harm is not being applied and that heirs preferred diya and were encouraged to accept it.226 The nature of diya, as understood by the legislators, remains somewhat hazy. While the Criminal Act of 1991 lists it under the heading of “compensation,” and thus distinct from penalties, we find Supreme Court decisions in which diya is called a punishment (ʿuqūba) and imposed with the objective of prevention and deterrence. Legislators also changed the punishments of intentional and accidental bodily harm. In the Penal Code of 1983, both crimes had to be settled directly between offender and victim. However, a criminal circular rectified this striking oversight and allowed for taʿzīr penalties in cases of pardon and financial settlement. In the Criminal Act of 1991, legislators avoided such ambiguities and clearly stipulated prison terms as possible punishments. The state thus recalibrated the balance between the rights of the heirs of a victim and the state’s prerogative to punish. The requirements for the proof of homicide are considerably lower in both the penal codes of 1983 and 1991, in comparison to the requirements found in the fiqh. Thus, for criminal cases, the law does not specify a minimum number of witnesses or their sex. The good reputation (ʿadāla) of a witness is stipulated as a condition, the interpretation of its meaning, however, was and is subject to interpretation in the courts. Indeed, court cases show that the testimonies of witnesses with questionable reputations, for example, that of a drunkard, can be taken into consideration under specific circumstances. The function of the oath has changed with regard to its role in the fiqh. Since a minimum number of witnesses is not specified in the Evidence Acts of 1983 and 1993, the function of the oath is not to replace a missing second witness but to corroborate or decide a case. According to a Supreme Court ruling, however, the promulgation of a ḥadd or qiṣāṣ punishment on the strength of an oath is excluded. One method to prove homicide that is recognized in the fiqh, the qasāma procedure, was not codified at all. Johansen, giving an example from the Ḥanafī school, shows how the ʿuqūbāt, that is, ḥudūd and qiṣāṣ crimes, are distinct from other parts of Islamic criminal law based on their specific procedural law.227 Indeed, all schools set the

226 227

Since it is hard to imagine that heirs always and without exception prefer diya over retaliation, we can only speculate on whether or not the desired result is being achieved. Johansen, Contingency in a Sacred Law, 421–433.

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threshold for the proof of crimes entailing qiṣāṣ (and for ḥadd crimes) significantly higher than for the proof of other crimes. The Evidence Acts of 1983 and 1993 both recognize distinct rules of proof for ḥadd crimes. For crimes punishable by qiṣāṣ, however, the same rules apply as in other (non-ḥadd/non-qiṣāṣ) criminal cases. In other words, qiṣāṣ crimes are not distinct from other criminal cases with regard to proof in the fiqh and the requirements for the proof of qiṣāṣ crimes, despite the harsh punishments for qiṣāṣ, are not higher than for regular crimes. Certain features of Islamic criminal law which are not reconcilable with modern concepts of citizenship have been omitted altogether. Thus, the validity of the concepts of ʿiṣma and kafāʾa has not been confirmed in the Islamized penal codes and the relevant Supreme Court jurisdiction. Neither the 1983 nor the 1991 code stipulates different blood prices for men and women or for Muslims and non-Muslims. While such differences could have been justified with the pertinent opinions in Islamic jurisprudence, instead, legislators, backed by Supreme Court case law, decided to establish gender equivalence and equivalence between citizens of different religions with regard to homicide and bodily harm. This is also true for the death penalty. Its implementation does not depend on equivalence between killer and victim. However, the concept of ʿiṣma has not disappeared altogether. The Supreme Court decided that the life and property of those who enter the Sudan with a visa is inviolable as long as the visa is valid, thus interpreting their status as equivalent to that of a mustaʾmin. Finally, we note that the 1991 code gives a modern interpretation to the notion of ʿāqila (solidarity group). Derived from a Ḥanafī opinion, the solidarity group can now be, for example, an insurance company, or, according to an important Supreme Court decision, the employer in whose service the crime was committed.

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Taʿzīr Taʿzīr in the fiqh1 The Qurʾān does not refer to taʿzīr punishments, and they are seldom mentioned in the Sunna. They found their way into the fiqh relatively late, in order to fill the gaps that result from the relative scarcity of penal regulations in the Qurʾān or Sunna. Function of taʿzīr Taʿzīr punishments enable judges to punish those who commit ḥadd or qiṣāṣ crimes, for cases in which the legal requirements for the respective punishment are not met or legal uncertainties preclude the application of a ḥadd or qiṣāṣ punishment.2 Taʿzīr also serves to punish sinful or undesirable behavior, even if it is not related to ḥadd or qiṣāṣ crimes. A taʿzīr punishment thus improves the sinner and is intended to save him from recidivism. It is also applied to deter the community from committing crimes against the claims of God and to retaliate against the infringement on the claims of men.3 As Peters points out, a taʿzīr punishment can serve to punish past conduct or to coerce a person to fulfil his ritual duties, such as prayer or fasting.4 A taʿzīr punishment can represent a claim of God, a claim of men, or both. It is considered a claim of God if it is the result of an act of disobedience before God, such as neglecting ritual prayers. It is considered a claim of men if the rights of men are concerned, for example, in a case of libel. Both claims come into play when, for example, small amounts of property are stolen. Here the claims of men relate to the right to property (that it not be stolen), and the claim of God relates to public security.5 In contrast to ḥadd crimes, the qāḍī can dispense with the taʿzīr punishment with regard to the claims of God. However, 1 For more detail, see El Baradie, Gottes-Recht und Menschen-Recht, 146–165; Peters, Crime and Punishment, 65–68; Bahnasī, al-Jarāʾim, 245–252; al-Jazīrī, al-Fiqh, 5:306ff.; and ʿAwda, alTashrīʿ, 1:685ff. 2 Peters, Crime and Punishment, 66. 3 El Baradie, Gottes-Recht und Menschen-Recht, 147. 4 Peters, Crime and Punishment, 66. 5 El Baradie, Gottes-Recht und Menschen-Recht, 147.

© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_012

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in relation to the claims of men, the aggrieved party must forgo his or her rights before the qāḍī can dispense with a taʿzīr punishment. Punishment of taʿzīr Crimes The notion of taʿzīr subsumes infractions against the (security) interest of the community (claims of God), punitive measures to protect the religious values and coherence of the Muslim community, and all the punishments intended to enforce private claims. The range of punishments reflects the variety of offenses and crimes to be punished. They encompass capital and corporal punishment (flogging), imprisonment and banishment, and punishments against the property of the delinquent. In terms of corporal punishments, only flogging is allowed.6 A taʿzīr punishment can further consist of the deposition of an official, a reprimand, public rebuke or the public announcement of the deed in question. While qāḍīs enjoy some latitude in the imposition of taʿzīr punishments, there are limitations, especially in comparison to ḥadd and qiṣāṣ punishments. The majority of schools holds that the total number of lashes may not exceed those fixed for ḥadd crimes. As an exception of this rule, Mālikīs leave the maximum number of lashes to the discretion of the judge or the official imposing the punishment. In the three other Sunnī schools (Ḥanafī, Shāfiʿī, and Ḥanbalī) there is some debate about the maximum number of lashes. The number of lashes recommended varies between ten, based on a ḥadīth, and 79 lashes, one less than the maximum number prescribed as a ḥadd punishment for a free person who drinks alcohol. Some Shāfiʿī and Ḥanbalī scholars argue that the number of lashes imposed should not exceed the amount due for the related ḥadd crime. For example, if zinā cannot be proven and the qāḍī sentences the accused to a taʿzīr punishment, the maximum number of lashes is 99, one less than the respective fixed punishment.7 The minimum number of lashes as taʿzīr punishment is not fixed. While capital punishment is undisputed for various ḥadd crimes and as a qiṣāṣ punishment, the fuqahāʾ debate the issue of whether execution is admissible in the taʿzīr system. There are proponents of the death penalty as a taʿzīr punishment in all the schools, but they are especially prominent among Ḥanafīs, who believe that the ruler can impose the death penalty when it is in the public interest, for example, for a person who repeatedly commits crimes similar to ḥadd or qiṣāṣ crimes (but which do not fulfill all of the legal charac6 There is one exception to this rule, however, the Mālikīs allow the amputation of the right hand of someone who has forged documents. Compare Peters, Crime and Punishment, 66. 7 Ibid., 67.

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teristics of these). Examples include liwāṭ of a muḥṣan or intentional homicide with instruments which (normally) do not cause harm. This opinion holds that crimes similar to ḥadd or qiṣāṣ crimes, such as the two examples given here, are to be clearly distinguished from the ḥadd and qiṣāṣ crimes themselves. They fall under taʿzīr crimes. Therefore, the death penalty is not compulsory and should only be applied to the recidivist. In contrast, those jurists (especially among Shāfiʿīs and Ḥanbalīs) who reject the application of the death penalty as a taʿzīr punishment consider cases such as the above as true ḥadd or qiṣāṣ crimes and impose the death penalty for first-time offenders.8 The minimum imprisonment (ḥabs) as taʿzīr is undefined. Opinions vary as to the maximum time a culprit must stay in prison. According to the Shāfiʿīs, the maximum prison term must fall below the maximum term of banishment, that is, one year. According to the other schools, the maximum prison term is not fixed. Ibn ʿĀbidīn (a Ḥanafī) holds that in cases of felonies, such as semiintentional homicide, the culprit should stay in prison until he shows signs of repentance.9 Certain punishments, such as banishment (nafy, taghrīb) is used as a deterrent taʿzīr punishment and is not controversial in the fiqh because it is mentioned in the Qurʾān and in the Sunna. However, its mode of application and its maximum length are matters of debate. Shāfiʿīs and Ḥanbalīs hold that the convicted should be placed in a different social context, to ensure that the separation from his original tribe and the ensuing feelings of loneliness serve as punishment. The majority hold that the place of banishment should not be outside the dār al-Islām, since the betterment and reintegration of the culprit are important goals of the punishment. If the banished person constitutes a danger to the people around him, he can also be imprisoned. Some Mālikīs, however, are of the opinion that banishment means to chase the culprit out of Muslim territory. Ḥanafīs even hold that banishment is imprisonment. According to Ḥanafīs and Mālikīs, there is no fixed maximum time of imprisonment or banishment. Shāfiʿīs and Ḥanbalīs hold that banishment should be less than one year.10 Punishments with regard to property are also highly controversial in the fiqh. Those against such punishments argue that because Islam guarantees the protection of one’s property it should not be touched. They maintain that utilizing this punishment would lead to tyranny and arbitrariness. In contrast, their proponents hold that the convicted should be deprived of part 8 9 10

El Baradie, Gottes-Recht und Menschen-Recht, 150–151. Ibid., 152–153. Ibid., 154.

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of his property until he repents of his deed and reforms himself. If the official imposing the punishment gives up hope for the repentance of the culprit, his property becomes the property of the state. Further, property can be destroyed if it is forbidden (for example, wine) or confiscated because it was used to commit a forbidden act, for example, milk diluted with water.11

Taʿzīr in the Penal Codes of 1983 and the Criminal Act of 1991 Functions of taʿzīr in the Islamized Penal Codes As shown above, taʿzīr punishments have various functions in the fiqh, either in the context of criminal law or in relation to the fulfillment of ritual duties. As to the latter, both Islamized penal codes are silent; they do not use taʿzīr as a means to punish Muslims for the neglect of ritual duties. Thus, neither eating in public during Ramaḍān nor neglecting one’s ritual prayers entail taʿzīr punishments in the two Islamized penal codes. As discussed above, the Penal Code of 1983 was closely based on the earlier Penal Code of 1974. A large majority of its provisions were taken directly from the 1974 code. With regard to punishments for crimes other than ḥadd or qiṣāṣ, the Penal Code of 1983 did not clearly separate ḥadd crimes and their respective punishments from taʿzīr crimes and their punishments. The Penal Code of 1983 combined taʿzīr crimes, in some instances taken directly from the Penal Code of 1974, with newly introduced ḥadd punishments and thus, in contradiction to the fiqh, unduly enlarged the number of crimes in which harsh ḥadd punishments were applicable. At the same time, legislators replaced specific punishments for clearly defined crimes, as stipulated in the Penal Code of 1974, in many instances with taʿzīr punishments such as flogging, fines, or prison (in various combinations). In most cases the number of lashes, the fines, and the maximum prison terms remained unspecified. It can be safely assumed that the three jurists charged by former president Numayrī to overhaul and Islamize the Penal Code of 1974 wanted to introduce the kind of latitude traditional qāḍīs had enjoyed with regard to imposing punishments. This approach contradicted pre-1983 legislative principles and led to the destruction of the balance between the gravity and nature of crimes and their corresponding punishment—a balance that was a distinctive characteristic of the Penal Code of 1974. Instead, very similar taʿzīr punishments were stipulated wholesale for very different crimes. Whether or not a judge would take into account differences with regard to the gravity of the crime was left to him, to a large extent. 11

Ibid., 156.

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As this was clearly a major flaw in the Penal Code of 1983, the latitude given to judges was reduced, but not entirely removed, in the Criminal Act of 1991. The formula “flogging, fine and/or prison” in various combinations was replaced, to some degree, by punishments that were more closely related to the gravity and nature of the crime, and thus more closely followed the model of the pre1983 penal codes. However, part of the leeway given to judges in the Penal Code of 1983 continued, to a lesser extent, in the Criminal Act of 1991. Typically, the punishment for taʿzīr crimes is a prison term in proportion to the deed. The prison term can be combined with a fine or replaced by it.12 Both laws punish—next to ḥadd and qiṣāṣ crimes a large variety of crimes that either represent claims of God/the community or claims of men that do not amount to ḥadd or qiṣāṣ crimes or cannot be punished as such because the legal requirements are not met or their punishment is precluded due to legal uncertainties. Taʿzīr penalties have also been used, especially in the Penal Code of 1983, for a large variety of political crimes. These were 0ften punished harshly, for example, with the death penalty for the organization of illegal strikes or the publication of critical articles.13 Punishments While in 1983 taʿzīr punishments were not mentioned explicitly, the Criminal Act of 1991, for the first time, makes reference to taʿzīr penalties, which are defined as “any penalty other than ḥudūd and retribution (qiṣāṣ).”14 This definition clearly shows that legislators intended to adopt the classical trichotomy of ḥudūd, qiṣāṣ, and taʿzīr. This trichotomy is also confirmed by the fact that the right to pardon differs for the three categories. While the implementation of ḥudūd cannot be stopped by a pardon (by either the public authority or the aggrieved party), the execution of qiṣāṣ can be remitted by the pardon of the victim or his heir. In cases of taʿzīr, a pardon can be granted by the public authority, provided that the aggrieved party is compensated and his rights satisfied.15 Furthermore, in the Criminal Act of 1991, a whole chapter defines the guidelines for how judges should apply taʿzīr punishments.16 Judges are advised to take into consideration all the aggravating and mitigating circumstances, the 12 13 14 15 16

En passant, flogging—ubiquitous in the Penal Code of 1983—was abolished in many instances. For an analysis, see, for example, Köndgen, Das Islamisierte, 124–126. Criminal Act of 1991, art. 3. Criminal Act of 1991, art. 38. Criminal Act of 1991, art. 39–40.

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degree of responsibility (of the defendant), the motive, previous convictions of the offender, etc. What looks like a matter of course, however, had been different in the earlier code. According to the Penal Code of 1983, defendants were at the mercy of judges who had substantial leeway and little guidance on how to use it. With the Criminal Act of 1991 coming into force, judges were bound again by well-defined maximum prison terms for specific crimes and the principles described above. In these two codes, crimes and their punishments, which fall implicitly or explicitly under the category of taʿzīr, were largely inspired by their secular predecessors or by the necessities of criminal legislation in the modern nation state. With regard to punishments, it is useful to take a step back and look at the development of punishments between 1974 and 1991. Under the secular Penal Code of 1974 punishments were restricted to six: (1) death, (2) forfeiture of property, (3) imprisonment, (4) detention in a reformatory, (5) fines, and (6) flogging. As a result of the introduction of crimes and punishments inspired by Islamic criminal law, the total number of punishments in the Penal Code of 1983 doubled to twelve.17 The six punishments of the earlier code were transferred into the 1983 code and complemented with compensation (taʿwīḍ) as an additional taʿzīr punishment.18 The five remaining new punishments are directly related to the Islamization of the penal code: execution with or without crucifixion, stoning, amputation, and cross-amputation, full or reduced diya,19 and qiṣāṣ.20 It is noteworthy that certain taʿzīr punishments prescribed by the fiqh, such as reprimands, public rebukes or the public announcement of a reprehensible deed were not codified. With regard to corporal punishment, the fuqahāʾ did not allow any punishment other than flogging. As to flogging, we must point out that its application goes back to the times of the Anglo-Egyptian Condominium21 and earlier periods. Thus, its application was simply continued and—unlike other pun-

17 18 19 20 21

The title of the Penal Code of 1983 (Qānūn al-ʿuqūbāt, 1983) already indicates its general focus on punishments. Penal Code of 1983, art. 64. Interestingly, diya is listed here under punishments. The nature of diya, whether punishment or mere compensation, is disputed in the fiqh. Penal Code of 1983, art. 64. Penal Code of 1924, art. 64 (f) and (g) distinguished between flogging and whipping, while the same article in the Penal Code of 1974 dropped the term flogging but maintained the word whipping.

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ishments derived from the fiqh—was not a new element in Sudanese criminal law. However, in 1924 and in the Penal Code of 1974, the maximum number of lashes was 25.22 In addition, only men could be subjected to flogging. In 1983, 25 was no longer the maximum number of lashes, but the minimum number. The maximum number of lashes quadrupled to 100, applicable to men and women alike.23 In 1991 the possible range of lashes changed only slightly, and was set between 20 and a maximum of 100. Taʿzīr offenses punishable by flogging are mostly related to public morals and crimes that are related to ḥadd crimes, but which do not meet the requirements for a ḥadd punishment. Examples of the former are “Gross indecency”24 and “Indecent and immoral acts.”25 Examples of the latter are “Practicing prostitution,” “Running a place for prostitution,”26 “Insult and abuse”27 (that do not amount to qadhf ), and theft (that does not amount to ḥadd theft).28 We must note that in the fiqh, minors can be disciplined (taʾdīb) by way of a taʿzīr punishment.29 The Criminal Act of 1991 adopted this opinion and stipulates, among other possible punishments, up to 20 lashes for children who are between seven and eighteen when they commit the crime. We have shown above how the Penal Code of 1983 transformed taʿzīr crimes into ḥadd crimes by stipulating ḥadd punishments, that is, corporal punishments not admissible under the above rule, for crimes that did not meet the requirements of the respective ḥadd crime. In other words, taʿzīr crimes became punishable by severe corporal punishments, that is, ḥadd punishments. This clearly contradicts the great majority of the fuqahāʾ. We have also seen above that the application of the death penalty is controversial under the taʿzīr system. Both Islamized codes opted to apply the death penalty as a taʿzīr punishment (in addition to being an accepted ḥadd and qiṣāṣ punishment). However, the two laws use the death penalty in different ways. The Penal Code of 1983 does not explain the nature of “execution” (iʿdām). In practice, the death penalty is executed by hanging. The definition in 1991 was more specific: “Death shall be by hanging, stoning, or in the same manner in which the offender caused death, and it may be by way of ḥadd, retribution

22 23 24 25 26 27 28 29

See Penal Code of 1924, art. 76, 77 and Penal Code of 1974, art. 76. Penal Code of 1983, art. 64 (8). Criminal Act of 1991, art. 151. Criminal Act of 1991, art. 152. Criminal Act of 1991, art. 154 and 155. Criminal Act of 1991, art. 160. Criminal Act of 1991, art. 173 and 174. Peters, Crime and Punishment, 21.

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(qiṣāṣ) or taʿzīr; and it may be accompanied by crucifixion.”30 In the Penal Code of 1983, there are various taʿzīr crimes punishable with the death penalty, that is, by hanging. At times the death penalty was combined with ḥadd punishments.31 In other instances, the death penalty was used widely as a means to stifle opposition.32 Whether or not this was in harmony with the fiqh is debatable. The use of execution as a taʿzīr penalty could have been construed as following Ḥanafī scholars who deem “the death penalty inflicted within Ta’zīr as a necessary measure to ensure political order.”33 From 1991 onwards the use of the death penalty as a taʿzīr penalty changed again. In the Penal Code of 1983 political crimes were removed completely. Only waging war against the state34 and espionage were still punished with the death penalty.35 Further, the death penalty was imposed for certain sexual crimes, such as repeated acts of liwāṭ, rape, and incest. However, the wording of the relevant articles is not unequivocal enough to determine whether the legislators meant them to be punished as taʿzīr crimes or as ḥadd crimes. Suffice it to say that the application of the death penalty as a taʿzīr punishment was reduced to just a few crimes in the Criminal Act of 1991. It is important to take a closer look at the actual application of the death penalty in the Sudan under Islamic criminal law. Our research has not found any cases in which stoning or retribution (qiṣāṣ) (in the sense that the killer died in the same way as his victim) were applied. In actual practice the various forms of the death penalty seem to have been reduced to one, that is, hanging. While the verdicts as confirmed by the Supreme Court tell us whether the death penalty, as pronounced, is by way of ḥadd, qiṣāṣ or taʿzīr, its actual execution is uniform. That is, where the fiqh clearly distinguishes the three spheres of criminal law (ḥadd, qiṣāṣ, taʿzīr) and allows for different ways to implement the death penalty, the Sudanese Criminal Act of 1991 retains these differences only as a theoretical possibility. In actual practice, execution methods prescribed for certain ḥadd crimes (stoning for zinā) and qiṣāṣ by way of retribution (that is,

30

31 32 33 34 35

Criminal Act of 1991, art. 27 (1). I quote from the translation: Sudan, “The Criminal Act 1991,” Arab Law Quarterly 9, no. 1 (1994): 32–80. The wording is somewhat misleading; it does not clearly separate the different methods of execution. Executions by way of taʿzīr are carried out by hanging only. See for example, Penal Code of 1983, art. 457: “Networks of organized crime.” Compare for example, Penal Code of 1983, art. 96–98. Ghaouti Benmelha, “Ta’azir Crimes,” in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System (Dobbs Ferry, ny: Oceana, 1982), 213. Criminal Act of 1991, art. 51. Criminal Act of 1991, art. 53.

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in the same manner the victim has died), are not applied. Since this leaves only hanging, clearly the death penalty has been brought into the sphere of taʿzīr.

∵ For the first time, taʿzīr has found its proper place in the Criminal Act of 1991. The wide applicability and functions of taʿzīr in the fiqh have allowed Sudanese legislators to define any crime, and therewith the corresponding punishment, outside the ḥudūḍ and qiṣāṣ as a taʿzīr punishment. While, from 1991 onwards, the traditional trichotomy between ḥadd, qiṣāṣ, and taʿzīr crimes has been respected on paper, in actual practice non-taʿzīr execution methods are not applied. As in other instances, the flaws of the Penal Code of 1983 were corrected, to a large extent, with regard to taʿzīr. The excessive and unspecified use of flogging was reduced in 1991 and, where applicable, specifies the maximum number of lashes. Despite the removal of a number of political crimes punishable under the Penal Code of 1983, the death penalty—as taʿzīr—is still applicable for certain crimes under the Criminal Act of 1991 and other laws.36 Thus, espionage,37 undermining the constitutional system,38 waging war against the state,39 some terrorism-related offenses,40 and drug trafficking.41 36

37 38 39 40

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While technically separate from the Criminal Act of 1991, these laws can be considered part of criminal law. These concern, for example, the Terrorism Combating Act of 2000 and the Sudan Narcotics Drugs and Psychotropic Substances Act of 1994. Criminal Act of 1991, art. 53. Criminal Act of 1991, art. 50. Criminal Act of 1991, art. 51. Examples are the following articles of the Terrorist Combating Act of 2000. Art. 5: Committing a terrorist act is punishable by death. Art. 6: Forming or attempting to form a criminal organization, or participating in such an organization by facilitating its activities, to stage attacks that may jeopardize life or property or tranquility, is punishable by death. Art. 8: Terrorism involving aircraft hijacking that jeopardizes life or an attempt to seriously damage or destroy an aircraft is punishable by death. Trafficking or producing drugs by recidivists, an official entrusted with combating drug trafficking, by use of a person unable to give legal consent, or as part of an international criminal organization makes capital punishment mandatory. Sudan Narcotics Drugs and Psychotropic Substances Act of 1994, art. 15 and art. 17. The death penalty can be imposed for providing drugs or other assistance related to trafficking or when drugs are provided to students or distributed in places of schooling. Articles 16 and 17 of the same law. For more information on the death penalty in the Sudan in general, see http://www .deathpenaltyworldwide.org.

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Human Rights and Sudanese Islamic Criminal Law Survey of Human Rights Violations The following survey aims to identify and analyze the areas of Sudanese criminal legislation that are not in harmony with international human rights treaties the Sudan is party to. In the first part of this chapter I concentrate on four major issues relevant to Sudan’s Islamized criminal legislation: equality, freedom of religion, the rights of children, and cruel, inhuman, and degrading penalties. In the second half, I attempt to quantify (approximately) the de facto execution of severe sharīʿa penalties based on annual reports by major international human rights associations. Equality before the Law Equality before the law is a legal principle under which all persons are subject to the same laws and all are equal before the law. The Universal Declaration of Human Rights (udhr, Article 7) states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.” While this principle is all encompassing and applies to religion, ethnicity, nationality, sexual orientation, socio-economic status, and more, with regard to the Sudan’s Islamic criminal law it is most relevant with regard to gender and religion. It goes without saying that in the Sudanese context, religion, to some degree, is related to the question of ethnicity, since most non-Muslims belong to non-Arab Southern tribes.1 Apart from the udhr, there are a multitude of universal and regional human rights instruments that define the notion of equality before the law.2 For example, the International Covenant on Civil and Political Rights (iccpr, Article 26)3 reads: “All persons are equal before the law … the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social 1 The scope of this work does not allow me to delve further into the highly complex issue of ethnicity in the Sudan. 2 It is not possible to discuss all of them. I limit myself to a selection of those which are relevant to the Sudan, either because the Sudan has ratified or acceded to them or because their accession is under discussion. 3 Accession of the Sudan, 18 March 1986.

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origin, property, birth or other status.” This ban on discrimination is echoed in the International Covenant on Economic, Social and Cultural Rights (icescr),4 the Convention on the Rights of the Child (crc),5 the International Convention on the Elimination of All Forms of Racial Discrimination (icerd),6 but also in regional human rights tools, such as the African Charter on Human and Peoples’ Rights (achpr). One of the human rights instruments relevant in this context is the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) to which the Sudan has not acceded. cedaw defines discrimination against women as … any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (cedaw, Article 1). cedaw also calls on state parties to accord women equality with men before the law (Art. 15). In order to explain its refusal to accede to cedaw, the Sudanese government argues that some of the articles in the convention do not comply with the principles of the sharīʿa. In January 2001, President al-Bashīr reportedly said that the Sudan would not sign cedaw because it contradicts Sudanese family values.7 Our analysis of Sudanese Islamic criminal law has shown that women are clearly not on an equal footing with men. That women suffer from severe discrimination is especially evident in the laws pertaining to unlawful sexual intercourse (zinā) and its proof, and those related to rape and its proof. All four 4 5 6 7

Accession of the Sudan, 18 March 1986. Ratified by the Sudan, 3 August 1990. Accession of the Sudan, 21 March 1977. The Sudan has not yet signed cedaw, and furthermore, the Muslim Personal Law Act of 1991 contradicts Article 16 of cedaw, which calls for equal rights of men and women with regard to women’s rights to enter a marriage of their free will and equal rights with regard to the dissolution of marriage, and with regard to equal rights and responsibilities as parents and concerning guardianship. Liv Tønnessen and Anne Sofie Roald, Discrimination in the Name of Religious Freedom: The Rights of Women and Non-Muslims after the Comprehensive Peace Agreement in Sudan. cmi Report r 2007/5 (Bergen: Chr. Michelsen Institute, 2007), 27–29. On the discussion around an accession to cedaw in the Sudan, with a focus on (women) Islamists, see Liv Tønnessen, “Feminist Interlegalities and Gender Justice in Sudan: The Debate on cedaw and Islam,” Religion and Human Rights 6 (2011): 25–39.

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witnesses of good reputation that are required must be men. Women are not allowed to testify.8 While this requirement is in conformity with the sharīʿa, it contradicts the human rights treaties cited above. We have shown above that the laws on proving zinā are lopsided and discriminatory against women. Especially in cases of rape, Sudanese legislation essentially turns a female victim into the perpetrator of an offense (zinā) which is punishable by death. This is the case when the female victim becomes pregnant and cannot prove rape. Here legislators construed pregnancy as the result of unlawful sexual intercourse, provided the woman is not married. While Supreme Court case law has tried to mitigate the effects of this legislation that clearly discriminates against women, the laws that create this situation have not been changed and remain in the statutes. Adding pregnancy to the methods of proof in cases of unlawful sexual intercourse clearly creates an advantage for men involved in such cases. In the absence of the testimony of four men of good reputation—and their absence is the rule—it simply suffices for a man to deny any involvement in the offense. Thus, in judicial practice, men generally must be released from detention for lack of evidence while a woman in the same case faces charges that could potentially lead to her execution. This legal situation leads to the unequal treatment of men and women under Sudanese criminal law, it undermines a woman’s right and ability to bring charges against her rapist, and contributes to his impunity. In consequence, in 2007 the un Human Rights Committee called upon the Sudan to “undertake to review its legislation, in particular Articles 145 and 149 of the 1991 Criminal Code, so that women are not deterred from reporting rapes by fears that their claims will be associated with the crime of adultery.”9 In addition, the prevalent situation with regard to rape also conflicts with the prohibition of rape under international human rights law in both international and domestic armed conflicts. Thus, rape is prohibited according to all four Geneva Conventions of 1949. The Sudan is bound by these conventions.10 The Geneva Convention iv (Article 27), for example, stipulates that “Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.”

8 9 10

Evidence Act of 1993, art. 62 (b). Concluding observations of the Human Rights Committee: Sudan, un Doc. ccpr/c/sdn/ co/3/crp.1, 26 July 2007, para. 14 (b). See redress, Criminal Law and Human Rights in Sudan: A Baseline Study (London: Redress, 2008), 15.

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Freedom of Religion11 Religious rights are guaranteed by a variety of international human rights treaties the Sudan is party to, such as the iccpr,12 icescr,13 crc,14 icerd,15 and the Convention on the Prevention and Punishment of the Crime of Genocide (cppcg).16 The iccpr, in particular, which is based on the Universal Declaration of Human Rights and acceded to by the Sudan in 1986, is very specific with regard to religious rights. Article 18 of the iccpr stipulates: 1. Everyone has the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. These freedoms to manifest one’s religion or belief, however, can be “subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (Article 18, 3). As El Tayeb points out, the inclusion of the right to change one’s religion or belief met with opposition from Muslim countries, which wanted to delete it before the adoption of the final text. The result of the discussion was a compromise formula with the wording “to have or to adopt a religion or belief”; while this is less explicit, it still clearly includes the right to change one’s religion or belief.17 This is also the unanimous opin11

12 13 14 15 16 17

un Human Rights reports on the Sudan quote numerous violations of the freedom of religion on a de facto level. Such violations include the restriction of church activities, the closure and destruction of churches, the refusal to issue building permits to churches, the denial of travel permits to Sudanese priests to prevent them from evangelizing, forced Islamic missionary work on tribesmen serving in the Popular Defense Forces, etc. While all these incidents constitute de facto violations of religious freedom, in this chapter I limit myself to legislation. Accession of the Sudan, 18 March 1986. Accession of the Sudan, 18 March 1986. Ratified by the Sudan, 3 August 1990. Accession of the Sudan, 21 March 1977. The Sudan accessed 13 October 2003. Article ii of the Convention protects the collective right of a religious group to exist. Mohamed Saeed Mohamed El Tayeb, “Religious Freedoms in the Context of Human Rights: A Case from the Sudan,” ma thesis, (University of Lund, 1995), 10.

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ion of leading commentators and un rapporteurs.18 Further, the International Covenant on Economic, Social and Cultural Rights (icescr) guarantees parents the right to determine and ensure religious and moral education for their children (Art. 13 (3)). The Convention on the Rights of the Child (crc) affirms the right of children to freedom of thought, conscience, and religion (Art. 14 (1)) and their right to belong to a religious minority (Art. 30). How do these guarantees, of the existence and practice of religions and beliefs, relate to the Sudan’s Islamic criminal law,19 the object of this study? The most blatant contradiction is without doubt the introduction, in the Criminal Act of 1991, of apostasy as a crime punishable by death. As mentioned earlier, Maḥmūd Muḥammad Ṭāhā was executed for alleged apostasy in 1985, even though there was no specific stipulation of apostasy in the existing penal code. The court justified Ṭāhā’s execution by referring to the Basic Rules of Judgment Act, which stipulates that a court must apply sharīʿa law in the absence of legislation, as was the case here, since apostasy was not yet codified. Sharīʿa must also be applied in a case in which a legislative provision exists, but is not in harmony with sharīʿa. While the Basic Rules of Judgment Act remains in force, for the first time in modern Sudanese legal history, the Criminal Act of 1991 introduced apostasy into the statutes, in clear violation of the above mentioned international human rights treaties. The relevant article clearly only refers to the apostasy of Muslims; the Criminal Act of 1991 does not contain any similar stipulation with regard to Christians or other religions. In other words, Muslim apostates are liable to the death penalty, while apostates of other religions are not punished at all according to the Criminal Act of 1991. When confronted by the un Special Rapporteur on the obvious conflict between Sudan’s legislation and its obligations under the human rights treaties it has ratified, the government of the Sudan replied: The punishment is inflicted in cases in which apostasy is a cause of harm to the society, while in those cases in which an individual simply changes his religion, the punishment is not to be applied. But it must be remembered that upthreatening [sic!] apostasy is an exceptional case, and the common thing is that apostasy is accompanied by some harmful actions against the society or State … Assuredly, the protection of society 18 19

Ibid., 10–11. While concentrating on Islamic criminal law, note that there are other laws that discriminate against non-Muslims, such as the 1962 Missionary Act, which severely limits proselytizing of Christians. No such limitations are imposed on Muslim missionary activities.

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is the underlying principle in the punishment for apostasy in the legal system of Islam.20 This statement clearly does not address the main concern, which is the flagrant contradiction between Article 126 (on apostasy) of the Criminal Act of 1991 and the Sudan’s obligation to ensure religious freedom, including the right to change one’s religion, as included in the iccpr. It is, rather, a political statement, and was understood as such by the un Rapporteur Gáspár Bíró; the Sudanese government was trying to portray those who make use of their guaranteed rights as being threats to society. Bíró rightly pointed out that Article 126 can be used not only against recent converts who wish to reconvert to their old faith but could also serve as a potential threat to the Muslim majority who may dissent from official positions on religious matters. In addition to introducing apostasy, by way of an implicit or explicit provision, both Islamized penal laws, the Penal Code of 1983 and the Criminal Act of 1991, discriminate against non-Muslims in various ways. The Penal Code of 1983 introduced the full range of ḥadd and qiṣāṣ provisions, clearly based on only one religion (albeit the majority religion), for the entire territory of the Sudan, that is, the South, mostly inhabited by non-Muslims, and the North, which includes a majority of Muslims and a minority of non-Muslims. By exempting the South from ḥadd and qiṣāṣ punishments, the Criminal Act of 1991 tried to address the problem but stopped halfway since non-Muslims in the North were still subject to the full range of punishments, at least until the Interim National Constitution of 2005 introduced some measure of protection against Islamic punishments for non-Muslims living in the North. It has also been pointed out that while the South was exempted from the punishments, the definitions of the crime (combined with a separate set of punishments for the South only) remained in place.21 In other words, while the iccpr guarantees “freedom of thought, conscience and religion … [and] … to manifest his religion or belief in worship, observance, practice and teaching,” the Islamized criminal law gravely violates the notion of equality of religions inherent in the iccpr’s provisions. Criminal legislation, as well as any other law based mainly on principles of the sharīʿa and interpretable only in the light of the sharīʿa, may be seen as a legitimate manifestation of the Islamic faith, its practices and teachings, at least in the eyes of the proponents of such legislation. However, by imposing such legislation on the entire non-Muslim population of the Republic of the Sudan, all

20 21

un Document e/cn.4/1992/52 quoted in un Document e/cn.4/1994/48, p. 23. See Kok, “Conflict,” 245–246.

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adherents of other religions are subject to the (legal) manifestation of a religion that is not theirs; thus, these non-Muslims are severely discriminated against. Rights of Children The Criminal Act of 1991 also conflicts with the Sudan’s obligations under Article 37 of the Convention on the Rights of the Child. Article 37 of the crc provides that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” Article 27 (2) of the Criminal Act of 1991, however, explicitly allows for the application of the death penalty on persons under the age of eighteen in cases of ḥadd and qisāṣ offenses. As to qiṣāṣ other than the death penalty, the Criminal Act of 1991 does not exempt persons under the age of eighteen (Articles 28–32); thus, it implicitly allows for the amputation of limbs of minors. Further, under the heading “Measures of Welfare and Reform. Measures prescribed for juveniles,” the Criminal Act of 1991 explicitly allows for flogging, up to 20 lashes, of children between seven and eighteen years of age (Art. 47 (b)). The un Committee on the Rights of Children is strongly opposed to the corporal punishment of children, that is, persons under the age of eighteen, in all settings, including in the justice system. It has clarified that the prohibition of corporal punishment is absolute, and cannot be justified.22 The problem, that for particular crimes (ḥadd and qiṣāṣ) the general age limit of eighteen is not applicable, has been addressed by reports of the un Committee on the Rights of the Child, which said in its 2002 report that it “is concerned that the definition of the child is unclear under Sudanese law and is not in conformity with the principles and provisions of the Convention. For example, minimum ages may be determined by arbitrary criteria, such as puberty, and discriminate between girls and boys …”23 Closely related to this matter, the crc is concerned that the age of criminal responsibility is too low; children as young as seven years of age are punished by detention in reformatories. The crc thus recommended, next to raising the minimum age of criminal responsibility, that the Sudan ends the “imposition of corporal punishments, including flogging, amputation and other forms of cruel, inhuman or degrading treatment or punishment, on persons who may have committed crimes while under 18.” The al-Bashīr regime responded to international criticism, the most specific of which came from the un Committee on the Rights of

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redress, No More Cracking of the Whip, 23. See especially, “Concluding Observations of the Committee on the Rights of the Child, Sudan, u.n. Doc. crc/c/15/Add.190 (2002)” Accessed online 26 September 2017, http:// hrlibrary.umn.edu/crc/sudan2002.html.

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the Child, by legislating “The Child Act of 2010.”24 This new law, which defines a large number of rights for children, may rectify major concerns of human rights groups and the un Committee on the Rights of the Child. The law seeks to establish a parallel justice system specifically for children, who are defined as anyone below the age of eighteen. Child courts, specially trained magistrates, and a children’s prosecution attorney’s bureau are the main pillars of this new system. The law does not mention the term sharīʿa and makes no reference to it. Instead it clearly specifies that the child courts “shall follow the un Minimum Rules on Juvenile Courts.” Most importantly, the Child Act of 2010 establishes the principle that “the sentence of whipping is not inflicted on the Child” (Art. 77 (d)) and that “the death sentence is not inflicted on the Child” (Art. 77 (e)). The Child Act is silent on the question of amputations. In general, it can be said that, despite important lacunae, the Child Act of 2010 is a step in the right direction. However, as long as corresponding sections in the Criminal Act of 1991 are not changed, it seems unlikely that judges in criminal courts will tacitly follow the Child Act instead of applying the Criminal Act of 1991. Indeed, in their October 2010 report on the Sudan, the un Committee was critical of the juvenile court system, and stated that it “is not yet fully functional and does not have separate courts and detention facilities for children.”25 Further, the un Committee concluded that the age of criminal responsibility is still determined according to “apparent physical maturity (puberty), rather than actual age.” The Committee was also seriously concerned that children, that is, persons under the age of eighteen, continued to be executed by way of retribution (qiṣās) or by way of ḥadd; that is, they were concerned that violations of Articles 6 and 37(a) of the Convention on the Rights of the Child have taken place.26 Further, children were still brought before courts for adults and detained together with adults in prison and while in police custody. In contradiction to the stipulations of the Child Act of 2010, children were “routinely dealt with in the absence of their parents or guardians,” and without “effective oversight of the investigative and judicial processes.” The un Committee report also mentions that female genital mutilation, which is widespread in Northern Sudan, is not prohibited

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The Child Act of 2010 repealed the Child Act of 2004. For this and the following quotations in this paragraph see, “Consideration of reports submitted by state parties under article 44 of the convention: Convention on the rights of the child.” Available online: http://uhri.ohchr.org/document/index/d6d967b8-d6cb-46b5 -82ac-4bde15daa28a. See paragraph 35 of the report.

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by the Child Act of 2010.27 As to caning and flogging, the Child Act prohibits it in schools and also as a judicial punishment. The report notes that it is concerned that the flogging of children and other corporal punishments are widely practiced in schools, courts, and prisons.28 Cruel, Inhuman, and Degrading Penalties The Sudan is party to a number of international human rights treaties prohibiting torture and other Cruel, Inhuman or Degrading Treatment or Punishment (cidtp). These treaties include the International Covenant on Economic, Social, and Cultural Rights (icescr), the Covenant on Civil and Political Rights (iccpr), the Convention on the Elimination of All Forms of Racial Discrimination (icerd), and the Convention on the Rights of the Child (crc). Further, the Sudan is party to the Convention on the Prevention and Punishment of the Crime of Genocide, the Slavery Convention, and the Convention and Protocol Relating to the Status of Refugees. The Sudan is also party to the International Convention on the Suppression and Punishment of the Crime of Apartheid and the African Charter on Human and Peoples’ Rights (achpr). The Sudan has signed, but not ratified, the Convention against Torture (cat) and other Cruel, Inhuman or Degrading Treatment or Punishment. But it has not ratified the Second Optional Protocol to the iccpr on the abolition of the death penalty.29 Thus, Sudanese criminal legislation is clearly in conflict with the country’s commitments under Article 7 of the iccpr, which provide that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In particular, sharīʿa-based punishments such as flogging, stoning, crucifixion, and amputation as stipulated in the Criminal Act of 1991 plainly contradict the iccpr. The un Human Rights Committee which monitors the adherence of states to the Covenant has stated that Article 7 of the iccpr extends to corporal punishment. It has therefore called on several states, among them the Sudan, to abolish all laws allowing for corporal punishment.30 It has further rejected explanations such as the one made by a Sudanese delegation in 2007, which asserted that “flagellation and whipping, for example, were lawful forms of punishment in the Sudan and as such not incompatible with the Covenant.”31 While I did not find any evidence that stoning has ever been imple27 28 29 30 31

The Child Act of the Southern Sudan (2008) prohibits the practice. Ibid., art. 39. Medani, “A Legacy of Institutionalized,” 75. redress, No More Cracking of the Whip, 21. Ibid., 22.

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mented, the punishment of flogging is imposed and executed on a regular basis. While Article 14(5) of the iccpr guarantees the right of appeal, sentences to flogging, in accordance with the Security of the Society Law32 are normally carried out instantaneously, and without legal counsel. For cases concerning the ḥudūd and qiṣāṣ, the Criminal Act of 1991 allows for the death penalty for individuals below the age of eighteen, while the iccpr and the crc both prohibit death sentences against offenders who have not yet reached the legal age of maturity. Apart from contradictions between the Sudan’s obligations under the iccpr and other human rights covenants and its sharīʿa-based national legislation, there are many de facto examples of violations of the Sudan’s international obligations. In addition to the well-known mass killings and mass rape in Dār Fūr, one of the most blatant human rights violations that has long persisted throughout the country is the recurrent scourge of slavery. Banned by both the iccpr (Art. 8) and the Slavery Convention, it has nevertheless continued to be practiced with impunity.33 The Sudan is also party to the African Charter on Human and Peoples’ Rights (achpr) which states that “… All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishments and treatment shall be prohibited” (Art. 5). Doebbler v Sudan is a leading case on corporal punishment which was decided before the African Commission on Human and People’s Rights. In this case, eight male and female students were convicted and sentenced to fines and 25 to 40 lashes for contravening Article 152 of the Criminal Act of 1991 (which punishes indecent or immoral conduct or dress). The flogging was meted out in public on the uncovered backs of the female defendants. While the Sudanese government argued that the punishment was justified because the defendants committed acts which are criminal according to Sudanese law, the Commission dismissed this argument. It unequivocally stated that the floggings violated Article 5 and that “there is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offenses. Such a right would be tantamount to sanctioning State sponsored torture under the Charter and contrary to the very nature of this human rights treaty.”34 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed but not ratified by the Sudan, prohibits

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Previously the Public Order Law. R. Lobban, “Slavery in the Sudan since 1989,” Arab Studies Quarterly 23, no. 2 (2001): 31–39. See paragraph 42 of the decision, available online: http://www1.umn.edu/humanrts/ africa/comcases/236-2000.html.

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torture (Art. 1) and acts of cruel, inhuman or degrading treatment or punishment (Art. 16). The monitoring Committee against Torture has taken a strong position against the public execution of punishments in general and physically abusive measures such as flogging or caning in particular, for example, in the case of Indonesia. It is very likely that a ratification of the Convention and resulting monitoring would lead to similar concerns in the case of the Sudan. In 2000, the Committee on Economic, Social and Cultural Rights, responsible for monitoring the International Covenant on Economic, Social and Cultural Rights (icescr) was “gravely concerned about the occurrence of flagellation or lashing of women for wearing allegedly indecent dress or for being out in the street after dusk, on the basis of the Public Order Act of 1996 (Khartoum), which has seriously limited the freedom of movement and of expression of women.”35 It therefore asked the government of the Sudan to “… reconsider existing legislation, particularly the 1996 Public Order Act, in order to eliminate discrimination against women ….”36 In conclusion, since its introduction in 1983 the Sudanese government has been criticized and continues to be criticized by the monitoring committees of the international conventions and treaties the Sudan is party to for its application of cidtp. The conventions and treaties, as well as comments of the committees leave no doubt that the prohibition of cidtp is absolute and cannot be derogated through emergency legislation, nor is it admissible to make reservations limiting the scope of the prohibition. A number of countries, including Pakistan and the Sudan, have tried to avoid international criticism for human rights violations with regard to the application of Islamic criminal law. It is important to note that the Sudan resisted all requests by Amnesty International and the relevant un monitoring bodies to sign and ratify cat and iccpr when al-Turābī was attorney general. While asserting the Sudan’s commitment to human rights, he resisted ratification because cat and iccpr outlaw the application of ḥadd punishments.37 The iccpr was acceded and cat was signed (but not ratified) under the Transitional Military Council in 1985–1986. Immediately after the 1989 coup, the al-Bashīr regime suspended the 1985 transitional constitution and ruled by constitutional decrees enacted by the 35

36 37

Committee on Economic, Social and Cultural rights, Concluding Observations on Sudan, un Doc. e/c. 12/1/Add. 48 (1 September 2000), para. 24. Quoted in redress, No More Cracking of the Whip, 32. Ibid., 32. Kok, “Hasan Abdallah al-Turabi,” 189.

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Revolutionary Command Council. In relation to this, the Sudan’s initial report (1991) to the un Human Rights Committee lodged a derogation concerning its obligations under the iccpr: It became expedient to proclaim a state of emergency with the inevitable derogation from Sudan’s obligations under the Covenant on Civil and Political Rights … With the achievement of more progress in the peace process and the establishment of the political system, that state of emergency will be naturally lifted and the derogation from Sudan’s obligations under the Covenant will be terminated forthwith. Since that 1991 report, new constitutions were enacted, first in 1998, and then in 2005. The former was partially suspended due to the imposition of emergency law in 1999. It is unclear whether, with the lifting of the state of emergency in 2005 in most of the Sudan, the above derogations have become groundless. The Interim National Constitution of 2005 does not mention international human rights as a source of legislation. Article 27 states that “all rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of this Bill” (that is, the Interim National Constitution). However, it is not clear that these international human rights treaties and conventions enjoy the same legal recognition as other articles of the constitution, since the Interim National Constitution explicitly states that rights described in its chapter ii (“Guiding Principles and Directives”) are “not by themselves enforceable in a court of law (art. 22).”38 In fact, in many instances the Interim National Constitution subjects itself to “prescribed laws,” thus inverting the usual practice of the hierarchy of norms. To date, little progress has been made to adjust statutory laws in order to make them compliant with the Interim National Constitution and international human rights conventions to which the Sudan is party.

Survey of Severe Sharīʿa Penalties The analysis of published Supreme Court decisions shows that most of the more severe corporal punishments, such as single and cross amputations, the

38

For a detailed critique of the 2005 Interim National Constitution, see “Observations on the Transitional Constitution,” Sudanese Human Rights Quarterly 20 (January 2006).

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death penalty for zinā, liwāṭ, and apostasy, and retaliation for bodily harm, have rarely, if ever, been upheld by the Supreme Court after the fall of the Numayrī regime in 1985.39 The Supreme Court cases published in the sljr, however, give us only part of the picture and it is necessary to match them with the reports of international human rights organizations in order to approximate the extent to which Islamic criminal law, and especially the harsher punishments, are applied. While floggings and executions are indeed applied on a large-scale, other corporal punishments based on the sharīʿa remain on the statutes and are imposed by the lower courts, but then, in the majority of cases, it seems that they are not confirmed, rather they are quashed or commuted by the Supreme Court. The Sudan’s approach to the application of Islamic criminal law and the severe sharīʿa penalties can be compared, to some degree, to that of Pakistan. Similarly, in Pakistan, no death sentence by stoning has been carried out, and in general, the application of Islamic criminal law has been “careful and controlled.”40 We see a major difference, however, in instances of amputation: in Pakistan, there were only a few sentences of amputation passed by lower courts, and these were, in turn, all quashed by the Federal Shariat Court. In fact, the Federal Shariat Court stated that it will make an effort “not to inflict a ḥadd as long as it may be avoided by all legitimate and established means.”41 In the Sudan, as far as we know, the Supreme Court has not made any similar statement and the frequency of amputation sentences passed by lower courts seems to be higher than in Pakistan. The possibility of carrying out amputations is kept open, even if the number of amputations is low. I move on to discuss the various punishments individually. It has become clear that the Sudan does not execute adulterers by stoning. While stoning is the punishment for adultery if the adulterer is muḥṣan, it was 39

40 41

The following conclusions were reached on the basis of primary and secondary sources, that is, Supreme Court rulings as published in the sljr, statements made by Supreme Court judges during interviews, Amnesty International, and Human Rights Watch annual reports. We cannot be absolutely certain that there are no unpublished cases that would indicate the existence of trends contrary to those described below. Also, we cannot entirely rule out the possibility that amputations and executions are carried out in secret. In its 1994 report, Amnesty International mentioned that in September 1993 a senior judge had revealed “that punishments provided under Shari‘a law had been imposed in secret in prisons: it was not clear whether these included limb amputations and executions.” Amnesty International, Annual Reports 1989–2010 (London: Amnesty International, 1989– 2010), Annual Report 1994. See Peters, Crime and Punishment, 160. The exception to this restraint are the blasphemy laws against the Ahmadiyya sect. Peters, Crime and Punishment, 160.

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not applied in any of the cases discussed in the sljr. In fact, according to all the sources available to me, stoning has never been carried out as a punishment in the Sudan.42 In addition, there is no evidence that anyone has been executed for liwāṭ43 between males. After the downfall of Numayrī, death penalties for zinā were no longer upheld by the Supreme Court, as far as we know from the published material at hand. While in the early phase of the application of Islamic criminal law, pregnancy of the muḥṣana served as proof for zinā, in later cases the Supreme Court recognized (unproven) claims of rape as a cause for shubha.44 While it remains in the statutes, pregnancy thus only serves as proof of zinā if the accused, in her defense, does not cite rape, which is considered a legal uncertainty (shubha). The Supreme Court has also narrowed the definition of muḥṣan to someone legally married at the time that zinā is committed. This definition considerably reduces the possible application of stoning. Zinā cases, even without the de facto application of stoning or the death sentence, make headlines and find their way into human rights reports.45 Those found guilty are normally punished by flogging or the sentence is commuted. 42

43 44 45

The method of execution for zinā, imposed in the Supreme Court cases investigated is not always stoning, it can be hanging as well, despite the unequivocal text of the Criminal Act of 1991, art. 146 (1) (a), which stipulates stoning as the punishment for the muḥṣan. Penetratio per penem in ano. An example for this reasoning is the case Government of the Sudan vs. Kalthūm Khalīfa ʿAjabnā, sljr (1992), no. 48/1992. Annual and other reports by international human rights organizations are the single most important and independant source allowing us to compare Supreme Court judgments with the judgments of lower courts. This source, however, has its limits. Amnesty International delegations have had limited access to the Sudan since the inception of the al-Bashīr regime. Nevertheless, a comparison between Amnesty International and Human Rights Watch annual reports shows that the latter reports significantly fewer amputations and Islamic criminal law-related cases in general. We can, therefore, safely assume that if Amnesty International and Human Rights Watch had been able to continuously observe the human rights situation in the Sudan since 1989, more Islamic criminal lawrelated cases would have been revealed. Amnesty International and Human Rights Watch reports often do not follow up on cases. For example, in one report, we read that x persons have been sentenced to amputation. In the following reports, however, we find no further details or subsequent developments of the case. It is therefore impossible to say whether these sentences were carried out or whether the case was quashed in the appeal or at the level of the Supreme Court. In other words, while Amnesty International and Human Rights Watch reports provide us with valuable information, it is impossible to obtain a comprehensive picture of de facto application of Islamic criminal law based on these reports.

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For example, in December 2001 in southern Dār Fūr, an eighteen-year-old Dinka woman was sentenced to death by stoning for zinā. After international protest, the sentence was quashed and the trial court imposed 40 lashes, which were carried out on the spot without possibility of appeal.46 Fluehr-Lobban writes that hospitals must report to the police any childbirth in which the mothers cannot indicate the father. The police then administer 100 lashes to these unmarried women.47 This and other evidence from human rights’ sources support the view that the regime does not wish to execute women (men are seldom ever the victim of these accusations48) for zinā, though at the same time it does not want to let the crime go unpunished. It therefore imposes flogging on the accused, often administered by Public Order Police after a decision by a Public Order Court and before the case even reaches a regular criminal court. Often the accused do not have access to legal assistance and therefore do not appeal the “verdict” before the flogging is administered. As to ḥirāba, until 1991 the Supreme Court had to cope with the peculiar situation that ḥirāba as such was not codified, while a number of taʿzīr crimes were punishable with punishments normally reserved for ḥirāba. The rather contradictory published Supreme Court decisions thus oscillated between a justification of the flawed 1983 legislation and an outright rejection of ḥadd punishments for non-ḥadd crimes. With the introduction of ḥirāba as a clearly defined ḥadd crime in the Criminal Act of 1991, published Supreme Court decisions on ḥirāba become even more rare. However, Amnesty International and Human Rights Watch report that sentences for amputation, execution, and crucifixion49 as punishment for ḥirāba were indeed (relatively) frequently 46

47 48 49

Human Rights Watch, World Reports, 2003. For another case, see Human Rights Watch, World Reports, 1999 quoting a case of four women facing the death penalty after being convicted of zinā. In 2002 Amnesty International reported a death sentence by stoning, imposed in Nyala on an eighteen-year-old Dinka woman. The sentence was subsequently reduced to 75 lashes. Amnesty International, Annual Report, 2003. In 2003, a fourteenyear-old girl who was nine months pregnant was sentenced to 100 lashes, also in Nyala. The sentence was later commuted. Amnesty International, Annual Report, 2004. In 2007, two women from Dār Fūr were sentenced to stoning for adultery in Managil Province, Gazira State. According to Amnesty International’s information, the sentence was later commuted. Amnesty International, Annual Report, 2008. C. Fluehr-Lobban, Shariʿa and Islamism in Sudan: Conflict, Law and Social Transformation (London: I.B. Tauris, 2012), 125. In its annual report for 1994, Amnesty International relates the case of Peter al-Birish, an Anglican bishop who received 80 lashes after being convicted of adultery. It seems that offenses other than ḥirāba are also punished with execution and subsequent crucifixion. Thus, three men of the Masaalit tribe (Dār Fūr) were sentenced to cross-

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pronounced by local courts, mainly in Dār Fūr, at times also in Khartoum.50 It appears that the higher frequency of ḥirāba-related sentences reflects the determination of the authorities to use all possible means to punish those who commit this massive disturbance of public order.51 It is noteworthy that the majority of the ḥirāba cases reported by Amnesty International and Human Rights Watch took place in remote Dār Fūr, which was the scene of long-standing violent confrontations between rebel forces and

50

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amputation, hanging, and crucifixion for having taken part in “tribal clashes” in 1999. See Amnesty International, Annual Report, 2000. Unfortunately, the report does not reveal which article of the Criminal Act of 1991 was applied. One man was sentenced to death and subsequent crucifixion in 1992 for “waging war against the state and illegal possession of firearms.” Amnesty International, Annual Report, 1993. Again, it is not clear why crucifixion was to follow hanging. The pertinent article 51 only speaks of the death penalty. Human Rights Watch reports a few cases of public hanging followed by crucifixion in Dār Fūr in 1991 for ḥirāba. See Human Rights Watch, World Reports, 1992. Amnesty International reports one case of hanging and subsequent crucifixion in Dār Fūr in 1991. It is unclear whether this case is one of the cases reported by Human Rights Watch. Amnesty International reports that in 1996 ten people were sentenced to cross-amputation for ḥirāba in Dār Fūr, while at the same time the director of prisons announced that 100 people were waiting for the implementation of the sentences of limb amputation. See Amnesty International, Annual Report, 1997. Three people were sentenced to crossamputation for ḥirāba in Dār Fūr in 1997. See Amnesty International, Annual Report, 1998. In 2000 twelve sentences of limb amputations were passed. It is unclear whether this was for ḥirāba or theft. One of these sentences was executed in Khartoum. Amnesty International, Annual Report, 2001. In 2001 five cross-amputations for ḥirāba were carried out in Kober prison in Khartoum, and nineteen other men were also sentenced to crossamputation. Amnesty International, Annual Report, 2002. Further, in December 2001, also in Dār Fūr, six men were sentenced to single and cross-amputations for ḥirāba and illegal possession of unlicensed firearms. See Human Rights Watch, World Report, 2003. In 2002, the final appeal of five people sentenced in Nyala (Dār Fūr) to cross-amputation and hanging was rejected. Amnesty International, Annual Report, 2003. In 2003 two men were hanged for ḥirāba after having been convicted in Nyala. In the years from 2005 to 2011, the annual reports of Amnesty International and Human Rights Watch do not report further cross-amputations for ḥirāba. It is evident from the Criminal Act of 1991, art. 24 (2), that the state is determined to punish ḥirāba severely. This article stipulates that criminal conspiracy is not deemed an offense unless an attempt is made to commit the offense. However, intentional homicide, ḥirāba, and offenses against the state are not included. In other words, if two or more people agree to commit any of these crimes, that is intentional homicide, ḥirāba or a crime against the state, the fact that they agreed to commit the crime is deemed sufficient to impose the respective punishment. They need not have actually committed the offense or attempted to commit it.

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government-backed militias. While these reports do not disclose the political or criminal background of the cases, it is likely that the relevant articles of the Criminal Act of 1991 were used as a disciplinary tool in a situation of civil strife. As to amputations for ḥadd theft, a large majority were not confirmed by the Supreme Court, according to the published material. At times the Supreme Court judges went out of their way to avoid amputation. Amnesty International reported that shortly after the introduction of the Criminal Act of 1991, in September 1991, three people were sentenced to limb amputation after being convicted for theft. It is not known whether these amputations were carried out.52 The Sudan, according to a 2006 statistic, was fifth among the six countries that carried out 91 percent of all known executions worldwide.53 The number of confirmed executions seems to have gone down in the following years. All the judges I interviewed were in favor of the death penalty and strongly believed in its deterrent effect.54 Whenever there are legal heirs of the victim, the decision is qualified as “execution by way of qiṣāṣ” (iʿdām qiṣāṣan). Whenever there are no heirs, the state will act as the representative of the victim.55 In this case, according to the pertinent Supreme Court jurisdiction, the execution will be carried out, provided there are no grounds for the remittance of qiṣāṣ. While this difference has no impact on the actual execution method (hanging), in the former case the heirs have the right to either settle for diya or pardon the culprit. This principle not only diminishes the total number of executions; it also allows for the heirs of the victim to receive financial compensation. While paying attention to these individual rights, the state, however, secures its prerogative

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Amnesty International, Annual Report, 1992. This conviction for theft came only a few months after all sentences of amputation imposed before the introduction of the Criminal Act of 1991 were commuted. See the Death Penalty Information Center online: http://deathpenaltyinfo.org/ deathpenalty-international-perspective#interexec. Reliable numbers of death sentences (that were imposed) in the Sudan are difficult to find. The website Cornell Center on the Death Penalty Worldwide (http://www.deathpenaltyworldwide.org) estimates that by February 2010 between 310 and 350 individuals were on death row in the Northern Sudan, in addition to another 100 in the Southern Sudan. Interviews with Supreme Court judges May 2009. In November 1997, the minister of justice announced that since 1989, 894 death sentences had been imposed for murder and armed robbery. Of these, 112 were carried out. Amnesty International, Annual Report, 1997. Criminal Act of 1991, art. 32 (3).

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to punish criminals by determining that execution is always by hanging and qiṣāṣ in the sense of “an eye for an eye” is not admissible. Further, even if the heirs pardon or settle for financial compensation, the judge can impose a taʿzīr penalty.56 With regard to qiṣāṣ for bodily harm, among the Supreme Court decisions that I investigated, with one minor exception I did not find cases that ended in retaliation. According to interviews with Supreme Court judges, these cases normally end with the payment of diya. As shown above, the Supreme Court decided that equivalence in the case of broken bones cannot be guaranteed and therefore retaliation is excluded. It is possible that this principle has been extended to bodily harm in general. This assumption is confirmed by the annual reports of Amnesty International and Human Rights Watch, which, from 1989 on, have not reported cases of retaliation for bodily harm. It should be noted, however, that the Supreme Court does not automatically review qiṣāṣ cases concerning bodily harm.57 Therefore, it is possible that an analysis of lower court judgments would lead to a reevaluation of these findings. Apart from the Ṭāhā case, execution for apostasy has not taken place in the Sudan since 1985. The published decisions of the sljr do not contain any other apostasy cases, nor do Human Rights Watch or Amnesty International report any cases. This, however, does not mean that the relevant articles of the Criminal Act of 1991 do not play a role in daily judicial practice. Apostasy, which is in direct defiance of the official Islamization project of the al-Bashīr regime, is not taken lightly by the authorities and (alleged) offenders face severe consequences.58 In summary, we observe that despite the Supreme Court’s reticence in confirming the harsher sharīʿa-based punishments, such as amputations or the death penalty for zinā, the application of Islamic criminal law as such subsists. While between October 1983 and April 1985 more than 140 amputations were carried out,59 after the downfall of the Numayrī regime and until the advent of the al-Bashīr regime, no amputations seem to have been implemented. All

56 57 58

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Criminal Act of 1991, art. 130 (2). The Criminal Procedure Act of 1991, art. 181, only speaks of death and life sentences and amputations that must be submitted to the Supreme Court for confirmation. This is illustrated, among others, by a case from June 2001, in which security forces arrested an alleged convert to Christianity and kept him in solitary confinement for three months while reportedly torturing him and demanding him to revert to Islam. Human Rights Watch, World Report, 2002. Also see Human Rights Watch, World Report, 1999, which quotes the case of a Nuba teacher living in the North and charged with apostasy. Amnesty International, Sudan, 46–47.

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pending amputation sentences were commuted in 1991. However, single and cross-amputations, and executions, at times in combination with crucifixion, were resumed with the introduction of the Criminal Act of 1991. These punishments were mainly imposed for armed robbery (ḥirāba). The total number of confirmed cases in which amputations were carried out is far lower than during the Numayrī era. According to the pertinent reports of Amnesty International and Human Rights Watch, the reported number of implemented amputations is less than one per year on average. This is in contrast, however, to the higher number of amputation sentences.60 Clearly, a high percentage of these sentences are not carried out, so we have to assume that these are either commuted or dismissed by the court of appeal or the Supreme Court. The Supreme Court judges I interviewed argued that many of the ḥadd crimes, especially those leading to amputation or stoning, were so difficult to prove that convictions were close to impossible. Supreme Court judgments therefore simply followed the spirit of the sharīʿa.61 Apart from a relatively low number of amputations and crucifixions (of already executed delinquents), the application of Islamic criminal law subsists mostly with regard to the death penalty for qiṣāṣ crimes and flogging.62 The latter is mainly administered for alcohol related offenses, offenses concerning “public morals,” such as contraventions against the Islamic dress code, but also for zinā. It is important to note that in all three instances, women represent a substantial part of those accused, if not the majority.63 Brewing “marissa,” the local Sudanese beer, is a business practiced mainly by Southern women who have no other source of income; the consumers are mainly Southern men. Both groups are targeted by the Public Order Police and Southern women, in particular, are frequently flogged for contravening the pertinent articles of the Criminal Act of 1991.64 As in cases of zinā, many, if not most, of these cases do

60 61 62

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As noted, for example, in 1996 the director of prisons announced that 100 people were waiting for the implementation of their amputation sentences. Interviews with Supreme Court judges, May 2009. Flogging and capital punishments were already part of the colonial criminal codes, although the nature of capital punishment changed with the new role conceded to the heirs of the victim. In 2010, however, nineteen young men received 30 lashes before an audience of 200 people for cross-dressing and wearing make-up. Amnesty International, Annual Report, 2011. In 1993 Amnesty International reported that in 1992 a Supreme Court judge received 20 lashes in public for drinking alcohol. This was a rather exceptional case. See Amnesty International, Annual Report, 1993. Alcohol related offenses were the most common crime of the 2008 crime statistics; 91,641 cases were judged on this issue alone.

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not reach the regular criminal courts, but are instead decided by Public Order Courts. Periodic amnesties free hundreds of women serving prison sentences for alcohol related offenses. Their places, however, are quickly filled by others. With regard to enforcing ḥijāb and other features of an ill-defined Islamic dress code, in the late 1990s, after a decade of zealously prosecuting women for not wearing ḥijāb or wearing trousers, the regime has moderated its fervor. While these cases may have occurred less frequently in recent years, they have not disappeared.65 The false accusation of illegitimate sexual intercourse (qadhf ) is difficult to assess. I did not find published Supreme Court decisions on qadhf, nor did Amnesty International and Human Rights Watch annual reports contain qadhf cases. Available statistics, however, report that in 2008, 659 court decisions on qadhf cases were passed.66 The application of Sudan’s Islamized criminal law is limited, mainly by geography, and with regard to the social strata it affects. In geographic terms, amputations and crucifixions are rarely applied in greater Khartoum and most other parts of the Sudan. However, they seem to have been applied on a slightly larger scale in Dār Fūr, probably in the context of the outbreak of hostilities between rebels and government-backed militias. With regard to flogging, the group most affected are Southern non-Muslims living in the North. Here the application of sharīʿa clearly serves to discipline a refugee population in and around Khartoum, a population which, for cultural and economic reasons, is not willing or able to comply with the Islamized legislation. Southern women are, however, not the only ones who are in danger of being flogged. Muslim women in Khartoum and other cities in the North also continue to be targeted for improper dress, zinā or other offenses. 65

66

This has been demonstrated by the case of the Sudanese journalist Lubna al-Ḥusayn who faced 40 lashes in July 2009 for having worn trousers in a Khartoum restaurant. See Amnesty International, Annual Report, 2011. Fluehr-Lobban reports that in 2003, fourteen people were being held in Khartoum’s Kober prison for qadhf ; this is according to a 2004 study of the Ahfad University Center for Gender and Development (edited by Balghis Badri). Fluehr-Lobban, Shariʿa and Islamism, 128.

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Conclusion Development in Legislation The comparison of the two Islamized penal codes I scrutinize in this study reveals a large number of differences. In terms of structure and length, the Penal Code of 1983 closely followed the earlier 1974 code. By contrast, the Criminal Act of 1991 was streamlined and shortened (e.g., 458 articles from the Penal Code of 1983 were reduced to 185). This streamlining and shortening was achieved, mainly, by reducing the number of punishable political crimes and by drafting it in much more concise language. Especially with regard to the Islamized parts of the Penal Code of 1983, the Criminal Act of 1991 is much clearer, more precise, and more concise in its definitions; it remedied many of the flaws of the earlier codes and is closer to fiqh provisions, thus it is more acceptable to those who criticized it from an Islamic point of view. In particular, it eliminated the controversial conflation of ḥadd punishments and non-ḥadd crimes that appeared in the Penal Code of 1983. These had been codified in order to widen the scope of applicable ḥadd crimes, and meant that crimes associated with ḥadd crimes, but which are not in fact ḥadd crimes (as defined in the fiqh), and attempted ḥadd crimes were punishable with ḥadd punishments. In the fiqh, attempted ḥadd crimes are treated differently and should not be punished by punishments reserved for the ḥadd crime itself. Thus, the Criminal Act of 1991 considerably reduced the number of crimes that entail ḥadd punishments and basically reduced them to crimes that can also be found in the fiqh. At the same time, to a large extent, the Criminal Act of 1991 also reduced the applicability of flogging. In lieu of keeping the arbitrary and non-specific, but ubiquitous formula of 1983, “will be punished by flogging, fine, and prison,” it restored the proportionality between the severity of the crime and its punishment. Keeping a reasonable relationship between the seriousness of the crime and the severity of the punishment was one of the important principles of the Penal Code 1974, one that, to a large degree, was abandoned in the Penal Code of 1983. Further, the Criminal Act of 1991 filled the gaps in the Penal Code of 1983 and attempted a more comprehensive legislation of Islamic criminal law. Thus, for example, it introduced the crime of ḥirāba, not codified in 1983; ridda (apostasy), which was also not explicitly codified in 1983; and blood money (diya), which is a central notion of the fiqh but was nevertheless omitted in the Penal Code of 1983. We must note, however,

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that the introduction of a crime that is derived from the fiqh does not mean that the regime intends the corresponding punishment to be applied. Thus, the introduction of apostasy as a crime has clearly had more symbolic than practical value. The presence of the crime of apostasy in the statutes enables the regime to present itself as the guardian of Islam, while its non-application helps the regime avoid the kind of international and domestic indignation the Numayrī regime faced when it executed Ṭāhā. Until today, we know of no executions for apostasy under the Criminal Act of 1991. The Criminal Act of 1991 is much more precise with regard to the death penalty than previous codes have been. The death penalty can be passed by way of ḥadd, qiṣāṣ or taʿzīr, with each of the three categories entailing different rights with regard to pardoning.1 In line with the fiqh, the Criminal Act of 1991 introduced, for the first time, two “schedules” that define limbs and wounds for which there is retribution and the corresponding diya payable for the various possibilities of homicide, the loss of limbs and wounds. As to the first schedule, it is unclear whether the legislators at the time the Criminal Act of 1991 was drafted meant to apply qiṣāṣ for wounds or whether it was meant to be dead letter right from the start. As noted, retribution for wounds does not seem to be applied, at least the Supreme Court decisions I have researched do not show any evidence that this is the case.2 With regard to the contradictions between Islamic criminal law and the applicable Sudanese constitutions, we cannot detect any fundamental development. Rights guaranteed in the Sudanese constitutions are clearly violated by the two codes that codify Islamic criminal law. With the South of the Sudan now independent, the possibility of a new constitution for the North has been raised. There is little reason to believe, however, that the promulgation of a new constitution would have any impact on the present Islamic criminal law. Instead of legislating a constitution that is in line with international human rights treaties and reforming criminal (and other) law accordingly, the Criminal Act of 1991 would likely remain and a new constitution would give ample leeway for fiqh-based Islamic criminal law application. While such an approach would remedy contradictions in domestic law, it would not address the multifold contradictions between international human rights treaties and Sudanese criminal (and other) law(s). 1 Capital punishment by way of ḥadd cannot be pardoned, not even by the president; a capital punishment by way of qiṣāṣ can be pardoned by the heirs of the victim, and capital punishments by way of taʿzīr can be pardoned by the president of the Sudan. 2 Nor do Human Rights Watch and Amnesty International report any cases of retaliation for wounds.

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An important development has been the shift from the Penal Code of 1983, which was, at least in theory, applicable to all Sudanese throughout the country, to the Criminal Act of 1991 that exempted Southerners from many fiqh-based punishments. This was still problematic in several ways. While it was presented as a reconciliatory concession by al-Turābī and the regime, as an effort to voluntarily address Southern concerns, in fact it was a recognition of the fact that Southern acceptance of the application of Islamic criminal law was unattainable and, moreover, the North did not have sufficient military and political control of the South to efficiently enforce Islamic criminal law. Further, as mentioned above, only the punishments were inapplicable. The definitions of the crimes, also based on the fiqh, remained and were combined with new punishments, specifically designed for the South, that were in conflict with the cultural and social realities in the South. In addition, the Criminal Act of 1991 did not address the problem of non-Muslims in the North, who remained, at least until the promulgation of the Interim National Constitution, subject to Islamic criminal law. The symbiotic relationship between the definition of a crime, its punishment, and corresponding procedure, as present in the sharīʿa/ fiqh, were respected to a greater degree in the case of ḥadd crimes. With regard to qiṣāṣ crimes, the situation is different. In cases of homicide and bodily harm, the rights of private persons are directly concerned. Here we observed a distinct change in Sudanese criminal legislation, one that was brought about by Islamization. The Penal Codes of 1924 and 1974 focused mainly on the state’s prerogative to punish. Islamization, however, led to a paradigmatic shift, that is, to a re-evaluation of the rights of the victim and his heirs. This shift was reinforced by Supreme Court case law. In the case of bodily harm, qiṣāṣ is rarely, if ever, applied and victims are strongly encouraged to settle for diya. In the case of intentional homicide, the victim’s heirs can settle for blood money or pardon the perpetrator. In both cases, however, the decision on the legal consequences of the crime do not pass entirely into the hands of the (victim or his) heirs. Because there is a possibility of imposing additional taʿzīr punishments, crimes in this category do not go unpunished, nor do they necessarily end with a financial settlement only. In summary, by changing and lowering the standards of proof for qiṣāṣ crimes, Sudanese legislators have, on the one hand, facilitated the application of qiṣāṣ in cases of intentional homicide and bodily harm; on the other hand, neither the heirs of homicide victims nor the victims of bodily harm can claim more than a theoretical right to inflict on the perpetrator the same kind of death or the same wounds as the victim received. The introduction, at the level of the governorates, of an additional and parallel system of legislation, enforcement, and jurisdiction with regard to public order and Islamic morale (namely, the Public Order Laws, police, and

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courts) has been an important development in the application of the sharīʿa after 1989. All three complement the new Criminal Act of 1991 and the existing regular police and jurisdiction in important ways. This parallel system allows the regime to avoid the frequent application of harsh sharīʿa-based punishment on the national level, while maintaining another powerful disciplinary tool at its disposal. In other words, while the Islamized parts of the Criminal Act of 1991 are difficult to handle, due to lengthy procedures and various appeal and review stages, the Public Order Law/Public Order Court system allows for much faster punishment, normally without appeal, let alone review by the Supreme Court. The Public Order Law/Public Order Court system is not only faster, its punishments (flogging, fines, prison terms, forfeiture, and closure of premises) can also be meted out much more easily and frequently. The Public Order Laws, by the mere frequency of their application, are a constant reminder of the boundaries of Islamic morality, as defined by the state. In summary, the introduction of elements into criminal legislation and procedure that are derived from and based on the fiqh has a variety of consequences. Most importantly, it leads to a situation in which different standards coexist within the same legislation. This development clearly distinguishes Islamic criminal law from earlier codes that did not contain elements based on the fiqh. Thus, for example, the general age of adulthood is not applicable in the case of ḥadd crimes when puberty serves to determine adulthood. Legal uncertainties (shubha) avert ḥadd punishments, but are not applicable in regular crimes. For ḥadd crimes different standards of proof apply, as compared to non-ḥadd crimes, and there is a further differentiation between zinā and other ḥadd crimes, etc. However, the majority of crimes and punishments are not directly traceable to the fiqh. Most crimes are not very different from those that can be found in the Penal Code of 1974 or earlier codes. In order to integrate them into an Islamic framework, they are classified as taʿzīr crimes, punishable by taʿzīr punishments. By subsuming all non-ḥadd and non-qiṣāṣ crimes under the third classical category of taʿzīr (that was omitted in 1983), the Criminal Act of 1991 corrects the attempt at legal Islamization, which the Penal Code of 1983 had started rather clumsily. And while on the surface all crimes listed in the Criminal Act of 1991 fit into one of the three categories (ḥadd, qiṣāṣ, taʿzīr), there can be little doubt that the relation between the Criminal Act of 1991 and the fiqh/sharīʿa is far weaker than one might expect. While stopping short of a “revolution at the level of the principles of jurisprudence,” sources and methodological principles suggested by al-Turābī were used in the Criminal Bill of 1988, and subsequently in the Criminal Act of 1991. Indeed, all four Sunnī schools serve as sources, next to the Qurʾān and Sunna. Legal opinions of the four schools are used in a discretionary manner,

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by way of eclectic expedient (takhayyur), while the principles of istiḥṣān and necessity (ḍarūra) allow for reforms. The memorandum accompanying the Criminal Act of 1991 also mentions a large number of sources and methodologies that were utilized. In many respects, these reflect the wide range of possibilities al-Turābī had suggested in his theoretical writings. It remains, however, unclear how much room was reserved for orthodox elements (the sharīʿa, the madhāhib, Qurʾān, Sunna, ijmāʿ, qiyās, etc.) or for potentially modernizing factors, such as the conditions of the country (ẓurūf al-bilād) the latest developments of the time (mustajiddāt al-ʿaṣr), ijtihād, modern criminal jurisprudence, and terminology, etc. Given the avowedly modernist approach al-Turābī professes in his writings, for example, with regard to the limits of ijtihād (“everything can be reviewed …”), he chose to codify a version of Islamic criminal law, at least with regard to ḥadd and qiṣāṣ crimes, that is inspired, to a large degree, by the legal opinions of the classical madhāhib. While it does not deviate too far from historical models, at times al-Turābī’s Criminal Act of 1991 even went beyond what its predecessor had introduced (for example, in relation to apostasy). Even with the rectification of the flaws of earlier codes, the suppression of multiple versions of a particular crime, and other changes in the legislation, there were still possibilities for a harsh application of the law in practice. In other words, the fact that the application of Islamic criminal law turned out to be much more limited than under Numayrī is much less the result of a particular reformist approach in legislation based on al-Turābī’s theoretical deliberations than it is the consequence of subsequent landmark Supreme Court decisions, which, in turn, were likely the result of general political guidelines set by the ruling regime. Many of these landmark decisions by the Supreme Court effectively filled gaps, gave new meaning to fiqh-based concepts, and thus clearly defined the limits of the application of Islamic criminal law in the Sudan today.

Development in Procedure and Evidence Though it closely followed the Penal Code of 1974, the Criminal Procedure Act of 1983 nevertheless introduced important amendments in order to be compatible with the Penal Code of 1983 and the sharīʿa. These amendments, however, were more limited in scope than the changes to the respective Penal Code of 1983 and ensured that higher authorities could not interfere unduly and thereby violate principles of the sharīʿa. Thus, the Sudanese president, who could waive a punishment, commute a sentence or annul a conviction for a specific crime, no longer had these wide-ranging powers if his actions

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represented a violation of the sharīʿa. For example, in practice this meant that the president could not waive a ḥadd punishment; therefore, this provision automatically enhanced the role of the Supreme Court as the highest and last institution dealing with amputations and executions by way of ḥadd. Next to the president, the powers of the attorney general were also limited. While he was allowed to terminate criminal proceedings at any time after the end of the investigation, he could not do this if it violated the sharīʿa. Both restrictions are further examples, this time with regard to procedure, of how the introduction of fiqh-based Islamic criminal law created two sets of legal standards which coexist with each other. The Criminal Procedure Act of 1983 also confirmed circulars, an instrument that had existed from colonial times, and introduced them into the realm of Islamic criminal law. The chief justice was authorized to issue criminal circulars to specify the school(s) of fiqh the courts were to follow in their application of the sharīʿa. This novelty is remarkable for two reasons. First, it showed that an institution of the colonial sharīʿa that had proven its value was acceptable in the new system as well; its authority was even transferred and expanded into Islamic criminal law. By contrast, criminal circulars before 1983 had only regulated areas of criminal law not related to the sharīʿa. Second, it showed that legislators were aware of the many gaps that resulted from the swift drafting of the new laws. The continuation of the system of criminal circulars issued by the chief justice preserved a useful tool that made it possible to fill, at a later stage, the most important gaps that resulted from the hasty Islamic criminal law legislation. It also enabled the chief justice Yūsuf, who was critical of Numayrī’s courts of instantaneous justice and in favor of strengthening the rule of law,3 to remind the authors of the penal code and the code of criminal procedure as well as the judges of the courts of instantaneous justice that the rules of the fiqh were more complex than what had been legislated. In his 1983 and 1984 criminal circulars, he reminded them that for each ḥadd offense, the fiqh recognizes a variety of reasons that can lead to the remittance of the ḥadd punishment. In many respects, the streamlined Criminal Procedure Act of 19914 confirms, but also complements the Criminal Procedure Act of 1983, and fills its gaps. The president still cannot pardon cases of ḥadd or qiṣāṣ, not even under a general amnesty.5 Ḥadd and qiṣāṣ punishments are likewise exempted from the courts’ prerogative to suspend the execution of judgments for a probation

3 Compare Zein, “Religion, Legality,” 212. 4 The 308 articles in 1983 have been reduced to 213 in 1991. 5 Criminal Procedure Act of 1991, art. 208, 211.

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period. Taking into consideration the severity of the punishments, ḥadd, qiṣāṣ, the death penalty, and flogging are not to be carried out immediately, as is the case of all other punishments, irrespective of an appeal.6 We must note here that the law refers to judgments that are reached in the regular court system. In practice, floggings are imposed by the Public Order Courts and carried out by the Public Order Police very rapidly, normally without appeal. What is more, ḥadd offenses such as zinā or alcohol consumption very often, if not in the majority of cases, do not enter the regular court system, but are decided swiftly by Public Order Courts. These swift decisions taken by a parallel system have several effects. First, the stalling effect of Article 190 (2) of the Criminal Procedure Act of 1991, is obviously not taken into account by the Public Order Courts/Public Order Police system. The swift execution of Public Order Court judgments normally is not appealed and the punishment is administered rapidly. In other words, it is part and parcel of the Public Order system to reclassify at least two, possibly other, ḥadd offenses as offenses that entail taʿzīr penalties. The accused often have no legal assistance, and procedural and legal guarantees as stipulated in the Criminal Procedure Act of 1991/Criminal Act of 1991 are often not respected in practice in this important part of the Sudanese criminal justice system. Many defendants waive their right to appeal and floggings are carried out on the spot after summary trials that normally last no more than an hour.7 From the point of view of the regime, the advantages are clear. Instead of having a large number of Islamic criminal law related cases congesting a slowly moving system that guarantees basic rights and procedure, such cases are referred to a parallel system where such guarantees play almost no role and where the swift execution of taʿzīr punishments is almost a forgone conclusion. This relieves the regular court system and ensures that punishments are meted out with a certain regularity. As to the more severe corporal punishments, the Criminal Procedure Act of 1991 includes detailed provisions to ensure that proper procedures are followed in cases of amputations (“… the amputated person remains in medical care, paid by the state, until recovered”). The health of the sentenced person is taken into consideration in cases of ḥadd, qiṣāṣ, and flogging; according to the text, the court can suspend the execution of these punishments as it deems fit. There are also clear provisions on how flogging should be carried out, detailing which parts of the body may be hit and which may not and how the lashes are to be administered. The Criminal Procedure Act of 1991 thus establishes clear

6 Criminal Procedure Act of 1991, art. 190 (2). 7 redress, No more cracking of the whip, 15.

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procedures to prevent abuse and undue cruelty in the execution of Islamic criminal law related punishments. However, given the nature of the parallel Public Order system, which is, for the most part, unhampered by procedural constraints, such guarantees seem to be of little consequence in practice. With regard to the above exceptions in cases of ḥadd, qiṣāṣ, and flogging, the Criminal Procedure Act of 1991 (and this observation is valid for Sudanese criminal legislation in general) creates a two-pronged system. On the one hand, there are provisions on crimes, their respective punishments, and procedures that pertain to the realm of Islamic criminal law—these are a minority. On the other hand, all the other crimes, punishments, and procedures—the majority—can also be found in the earlier (pre-Islamization) codes, and are not unlike the codes of professedly secular countries. The two realms, however, cannot always be clearly separated. At times, they are combined by legislators in order to introduce solutions that better meet the conditions of the country. In the realm of procedure, especially the provisions for proof in ḥadd cases and cases of intentional homicide and bodily harm, sharīʿa-based solutions conflict with the realities and requirements of a multi-religious and multiethnic nation state such as the Sudan. In order to facilitate convictions with regard to qiṣāṣ offenses, the Evidence Act of 1983 and the Evidence Act of 1993 substantially lowered the requirements for proof. These acts have not introduced the requirements related to religion and gender, as provided for in the fiqh. An important effect of this has been a reduction in discrimination based on gender and/or religion. This approach, which has been confirmed by subsequent Supreme Court case law, has moved Sudanese legislation closer to contemporary notions of the equality of citizens in a nation state. First, the Evidence Act of 1983 and Evidence Act of 1993 do not specify that for qiṣāṣ cases a witness must be Muslim. Thus, non-Muslims can testify against Muslims in qiṣāṣ cases. Further, they do not stipulate that two females (not one) must replace one male witness. That is, as witnesses in qiṣāṣ cases, women are equal to men. Second, in relation to the secular8 environment it is operating in, Sudanese Islamic criminal law has abandoned the important notion of equivalence (kafāʾa). By not introducing different blood prices for men and women, Muslims and non-Muslims, legislators have established equivalence between the sexes and between Muslims and non-Muslims in qiṣāṣ cases. Legislators, and this has been confirmed by subsequent Supreme Court case law, have thus

8 By “secular” I mean not directly based on notions and concepts that can be found in the Qurʾān or the fiqh. Certainly, whatever is not ḥadd or qiṣāṣ is defined as taʿzīr. However, this appears to be a retroactive rationalization.

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moved the contemporary Sudanese version of Islamic criminal law closer to modern definitions of citizenship, at least in the important domain of qiṣāṣ crimes. At the same time, discrimination based on gender and/or religion continues, especially in the domain of proof and punishment of ḥadd crimes. In this context, we must remember that the death penalty for intentional homicide is imposed in significant numbers while severe corporal punishments (such as amputations and executions by way of ḥadd) for ḥadd crimes are only rarely applied. Third, legislators have harmonized Sudanese Islamic criminal law with the requirements of modern notions of citizenship in another aspect. They have not introduced any distinction between persons enjoying inviolability (ʿiṣma) and those whose killing cannot be punished as intentional homicide. Neither Sudanese legislation nor published Supreme Court cases have indicated that “unprotected” non-Muslims can be killed with impunity or that heirs of homicide victims can take the life of the killer with impunity. Legislators have tacitly confirmed an important element of equivalence between Muslims and non-Muslims by not introducing the notion of inviolability (ʿiṣma) and by ensuring that neither private revenge nor the private execution of those assumed guilty of severe ḥadd crimes has any room in the Sudanese criminal system. In summary, in the case of qiṣāṣ crimes, the standards of proof as suggested in the fiqh have been substantially lowered, to the level required for the proof of other, non-Islamic criminal law, crimes. While on the one hand, qiṣāṣ crimes are thus easier to prove, their factual application is, paradoxically, reduced to some degree, as in the case of retaliation for wounds—cases that seem to end, routinely, with the payment of diya. The relationship between severe punishments and a high standard of proof, as provided for in the fiqh, has been severed. Overall, the influence of the fiqh on Sudanese criminal procedure is strongest in the proof of ḥadd crimes; in important areas, Islamic criminal law in the Sudan has been cut off from the Islamic procedural law that was meant to complement it. These two elements, criminal law and the accompanying procedural law, were intended to form a “working unit,” which, with its different requirements for ḥadd, qiṣāṣ, and taʿzīr crimes, has been only partially translated into Sudanese criminal legislation. We must also mention another important development with regard to the Criminal Procedure Act of 1991. As noted, the Supreme Court has the power to review any case and is obliged to review all sentences of life imprisonment, death, and amputation. A later amendment to the Criminal Procedure Act of 1991 introduced a further, internal control mechanism, namely a special circuit of five judges that is formed by the chief justice. This special circuit is convened when the chief justice believes that a Supreme Court judgment

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contravened the sharīʿa or erred in its interpretation or application of the law.9 The introduction of this circuit is remarkable for several reasons. It gives the chief justice the last word, even in sharīʿa-related cases that had already been reviewed by his colleagues. Formerly, the Supreme Court, which supposedly consists of the most qualified and experienced judges in the Sudanese judicial system, reviewed cases once and rendered their decision. With the special circuit, it is possible to ensure that Supreme Court judgments are consistent with the desired official line with regard to the application of the sharīʿa. It appears that when the law speaks of “Islamic sharīʿa ordinances” that may have been contravened, it does not want to create a tool by which the Islamized criminal law can be tested. Supreme Court judges have only rarely criticized Sudan’s Islamized criminal law for not being in line with the sharīʿa. These infrequent cases mostly date back to the early phase of the application of Islamic criminal law under Numayrī; there has been only one similar case under the present regime. With the special circuit as a security valve, the chief justice can ensure that the Sudanese version of sharīʿa is not internally tested again.

Supreme Court Case Law This study has highlighted the function of the Supreme Court as a security valve and as a regulatory agency. Warburg and Layish show the tendency of lower criminal courts to apply severe sharīʿa-based punishments with some frequency. While statistical studies on the frequency of harsh sharīʿa-based punishments pronounced by lower courts in the period since 1989 are not available, we can safely assume that Sudanese courts pass such sentences more often than the regime would like to see applied.10 That is, the Supreme Court has an important function to ensure that the majority of these sentences are not carried out. There are two main reasons for quashing or commuting the decisions of lower courts. Either the decisions contain serious legal errors or they are contrary to an undeclared policy of rarely imposing, or not imposing severe ḥadd punishments. Sometimes these two reasons merge. In the event that a case involves serious legal errors, quashing or commuting the decision of a lower court is relatively straightforward. It becomes, however, a more dif-

9 10

Criminal Procedure Act of 1991, art. 188 (a). We must remember that the cases published in the sljr are only a fraction of those that reach the Supreme Court for review.

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ficult task when the decision of a lower court does not contain obvious legal errors, rather it interprets the law in a way that leads to a harsh punishment in a case on which the Supreme Court has not yet given clear guidance. In such cases, the Supreme Court, as the highest court of the Sudan, can offer a different, more authoritative, and binding interpretation of the law that henceforward renders all differing interpretations of lower courts inadmissible. We have shown that, more often than not, these Supreme Court interpretations tend to restrict the application of harsh sharīʿa-based punishments. For example, the acceptance of rape as a legal uncertainty that thereby remits the ḥadd punishment for zinā, or the interpretation of the term “muḥṣan” in a way that excludes divorcees and widows/widowers and thus limits the number of those who could, potentially, be sentenced to stoning. The example of rape also shows how the case law of the Supreme Court has developed over time toward a more lenient11 interpretation of the pertinent legislation. It further shows that the Supreme Court not only regulates the interpretation of existing legislation, it also functions as a corrective of its own earlier case law on Islamic criminal law-related cases. Many Supreme Court decisions are clearly singular decisions on specific topics that decide a controversial issue conclusively (as far as we know at this point). However, other Supreme Court decisions are challenged, then subsequently developed and corrected until, it seems, a certain balance establishes itself. The most recent decision on the matter then reflects what the Supreme Court judges want to establish as a legal norm that does not contradict the general approach the current regime has chosen to apply. We must emphasize that the Supreme Court does not operate in a political vacuum. Its personnel, its internal statutes and organization, the criminal legislation it deals with, and its general approach with regard to highly sensitive matters, such as the implementation of amputations, crucifixions, and stonings, are all, no doubt, highly political and therefore subject to regulation by the political sphere. Most of my interview partners emphasized their perceived juridical independence and freedom to administer justice according to their own consciences. A clear examination of the above-mentioned factors, however, shows the narrow parameters of this independence.

11

“Lenient” in this context means that the Supreme Court tries to avoid the death penalty for zinā. This does not mean, however, that female defendants are not punished. In the cases investigated, I found that they generally remain in prison for years while waiting for a decision to spare their lives. These years in prison, under the threat of execution, are then declared a taʿzīr penalty; the defendants do not receive compensation for the time spent in prison.

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In addition to streamlining the application of Islamic criminal law according to the wishes of the ruling regime, at times the objectives of the Supreme Court were less to the liking of policy makers. This was especially true during the first phase of the application of Islamic criminal law (1983–1991), when, because of the superficial drafting and the manifold contradictions and lacunae in the legislation, judges urgently needed the guidance of the Supreme Court, thus the latter played an important role. The majority of Supreme Court decisions during Numayrī’s rule were efforts to make sense of the legislation that was, in many ways, in conflict with the fiqh, without contradicting the Penal Code of 1983 or pointing at its obvious flaws or openly criticizing it. This approach was not surprising, given the pressure the judiciary was under in that particular period. We must also remember that at that point, many Supreme Court judges still belonged to the old guard, who had been trained in the common-law tradition and were rather unfamiliar with Islamic law in general. And, it did not limit itself to issuing authoritative interpretations; on some rare occasions, it also had the courage to test the penal code against the sharīʿa, and thus question the soundness of the drafting and applicability of important parts of the Penal Code of 1983. For example, one daring decision demonstrates the great courage of these judges. In this landmark decision on ḥirāba/sariqa (ḥaddiyya) the Supreme Court judges took the Basic Rules of Judgment Act of 1983 and Article 458 of the Penal Code of 1983 seriously, thus testing a group of articles of the Penal Code of 1983 against the fiqh.12 It concluded that a ḥadd punishment, normally imposed for a particular ḥadd crime, cannot be imposed if the crime in question is not the ḥadd crime the ḥadd punishment is meant for. That is, if legislators combined an act that by definition is a taʿzīr crime with a ḥadd punishment, it is not acceptable to impose that ḥadd punishment, even if the crime fulfills all the elements specified by the definition. This unique and confrontative approach of the Supreme Court questioned not

12

Basic Rules of Judgment Act, art. 2, stipulates that in “interpreting legislative provisions, the judge shall (a) presume that the legislator did not intend to contradict the sharʿī scale of five religious-legal categories; (b) interpret the general concepts and discretionary expressions in accordance with the rules, principles, and general spirit of the sharīʿa; and (c) interpret the technical terms, legal terms, and the religious legal expressions in the light of basic principles (qawāʿid uṣūliyya) and the linguistic rules of the Islamic science of the sharīʿa.” Article 458 (1) and (5) “instructs the judge … to ascertain that the provision applicable to an offense, especially one entailing a Qurʾānic punishment, conforms to sharīʿa standards, and to refrain from interpreting any provision in a manner contravening sharʿī principles.” This translation is taken from Layish and Warburg, The Reinstatement, 168–169.

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only a whole group of articles of the Penal Code of 1983 but also the quality of the legislation and its relationship to the fiqh. The Supreme Court was exceptionally courageous when it implicitly spelled out what every legally trained person with some additional knowledge of Islamic law could see, that is, that the Penal Code of 1983 was in many ways incompatible with the fiqh, that it was poorly drafted, and posed manifold problems to those tasked to enforce it. Since this new and critical approach was published in the sljr it was clearly meant to guide the lower echelons of the judiciary in their quest for justice. However, there are many other, more accommodating examples of how Supreme Court judges dealt with the contradictions of the Penal Code of 1983. In the majority of cases, Supreme Court judges applied Islamic criminal law without questioning the soundness of its codification. It is not clear what direction the lower courts followed in their judgments after the publication of the said decision. Second, and equally remarkable, the Supreme Court dared to take the Basic Rules of Judgment Act and Article 458 seriously and use it as a tool to question and test the logic and applicability of the Penal Code of 1983. While on the surface, legislators wanted to ensure that jurisdiction was in line with the sharīʿa, their intention cannot have been for courts to use both tools to address the contradictions and incompatibilities with the fiqh. This would have led to a situation in which parts of the Penal Code of 1983 would have become inapplicable and more legal confusion would have resulted. The situation improved with the Criminal Act of 1991. As shown, the Criminal Act of 1991 and the legislation accompanying it rectified many of the flaws of the preceding codes. However, a certain number of important incompatibilities with the fiqh remain, especially with regard to how it relates to procedural law. While Article 458 was eliminated with the Penal Code of 1983, the Basic Rules of Judgment Act is still in force and theoretically could be invoked by courts. This, however, does not seem to have happened. In other words, with regard to published Supreme Court decisions, and unlike the first phase of the application of Islamic criminal law, the Supreme Court judges have accepted the legislation which is the base of their daily work and do not question its compatibility with the fiqh. Given the ongoing contradictions between Sudanese criminal legislation and the fiqh, there are ample grounds for invoking the Basic Rules of Judgment Act. This is not the case, because the Criminal Act of 1991 has moved closer to the fiqh, the legal personnel have changed, and better control mechanisms have been established. As for the interpretation methods used by the Supreme Court, the court decisions investigated here show that judges normally tried to establish the meaning of specific articles or legal terminology by going back to the relevant legislative sources or by consulting relevant precedents. With regard to issues

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that are not directly related to Islamic criminal law, these sources are normally the earlier codes, for example, the Penal Code of 1983 as the precursor of the Criminal Act of 1991 and the Penal Code of 1974 as the precursor of both. At times, we even find decisions that quote precedents from English law. The individual judge determines whether or not to quote English precedents, and this may relate to his command of English. Without linguistic access to the relevant sources (English precedents, the Indian criminal legislation of the colonial period, Supreme Court decisions before they were published mostly in Arabic), developing historical depth in a decision becomes difficult. As to questions that are directly linked to Islamic criminal law, Supreme Court judges normally consult either synoptic works, such as those of ʿAbd al-Qādir ʿAwda and Muḥammad Abū Zahra, or they consult the handbooks of the four Sunnī madhāhib directly: those ascribed to the founding fathers of these schools or other important authorities of the same school, or they consult commentaries on a particular school. However, it is not only the four Sunnī schools that are taken into consideration; we also find references to other schools, for example, the Ẓāhirī school, the Zaydī school, or the Twelver Shīʿa. They also quote the Qurʾān and Sunnī aḥadīth in order to find guidance with regard to specific legal problems. Just as criminal legislation in the Sudan draws on multiple sources, the Supreme Court judges also seek guidance from Islamic sources that go far beyond the traditional schools that were historically dominant in the Sudan. This flexibility in interpretation, and in addition the use of ijtihād, allows the Supreme Court to find creative solutions to complex Islamic criminal law related problems. This is even more the case since legislators explicitly legitimized the use of other sources, such as modern criminal jurisprudence and terminology, modern developments, and the conditions in the country. Next to earlier penal codes and the works of the fuqahāʾ, we can also observe that since 1983, a body of Supreme Court decisions related to Islamic criminal law has grown, and increasingly serves as a reference point for decisions. This approach, of course, is very much a continuation of the pre-1983 Sudanese tradition which, in turn, emulates the importance and use of precedents in English law. Analyzed separately, criminal legislation, procedure, and jurisdiction reveal significant differences related to their social and societal acceptability. Legislation and procedure can, potentially, be interpreted in a way that leads to more frequent applications of the harsh sharīʿa punishments, as was the case during the “revolutionary phase” under Numayrī. However, such “cavalier deployment” (to use Sidahmed’s expression) of severe sharīʿa punishments was not socially acceptable at the time, except to a minority, and most likely would not be accepted today. The solution seems to be to maintain these laws in the

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statutes, but interpret them in a way that avoids further societal debates, political conflicts, and individual tragedies; this is socially beneficial in the sense that it is acceptable to the concerned individuals and to society as a whole. By functioning as a corrective to the existing legislation, the Supreme Court certainly makes a decisive contribution on the issue of how “the sharīʿa” as a whole is perceived, not only within the judiciary, but also in society. For examples of how political, individual, and societal needs can align, consider that the claim of rape is now generally accepted as shubha to enable courts to avert the ḥadd punishments for zinā, and that retribution for wounds is not applied, but blood money is awarded instead. As noted, discrimination based on gender and/or religion has also been reduced and is also evidence of the success of this approach. In summary, the combination of Islamized penal codes, legislation on criminal procedure, and the growing body of case law (whether from the Supreme Court or criminal courts of appeal) related to Islamic criminal law, creates what we could call a “Sudanese national sharīʿa.” It is national in the sense that it is a select corpus of solutions, either from the different madhāhib, by way of ijtihād or by other methods, that is unique in terms of its methodology and results. We can safely assume that no other country has chosen a similar mix of methods, nor has another country reached the same solutions. Both methods and solutions are specific to the Sudan and it is therefore appropriate to speak of a Sudanese national sharīʿa. In fact, we can state that while policy makers like to use the term sharīʿa with its connotations of divinity and timelessness, the actual practice of Islamic criminal law is a rather human affair. The methods used to find solutions and the results of these endeavors are the choices of human actors. Both methods and results are determined by a very specific political and historical situation and can hardly claim universality. “The sharīʿa” thus falls apart into as many national versions as there are countries that practice sharīʿa-based codifications of Islamic (criminal) law. Moreover, with regard to the Sudanese national version of Islamic criminal law, it cannot claim to be the result of an unequivocal and clear democratic decision of the Sudanese people. It has been controversial from the time of its inception and it continues to be so. While it doubtlessly has its proponents, it is contested within the country by secular-minded members of the opposition and others criticizing Islamic criminal law from an Islamic point of view. As we have shown above, even the two large sectarian parties, despite agreeing in principle on the application of Islamic law, have shown that they are rather critical of the existing Islamic criminal law.

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Political and Historical Factors Islamic criminal law in the Sudan, its introduction, subsequent development, and management by various regimes, must be contextualized and can only be understood in relation to the political developments surrounding it. It was introduced by and strictly applied under a regime that sought to muster popular support through Islamization. Numayrī resorted to the introduction of Islamized legislation when his economic policies failed and the conflict in the South of the Sudan re-ignited; these events led to his loss of credibility and political legitimacy. His regime wanted to prove that it was serious about Islamic criminal law. It therefore ensured that the harsh corporal punishments of the Penal Code of 1983, which was in fact a superficially Islamized version of its earlier code of 1974, were applied frequently. Despite vocal domestic and foreign protest, a relatively large number of severe sharīʿa punishments, such as amputations, were carried out and many thousands were flogged. With the fall of Numayrī’s dictatorship, the political situation changed. Yet, neither the subsequent military-led interim government nor the democratically elected government of Ṣādiq al-Mahdī were willing or able to reform Islamic criminal law or abolish it altogether. Between 1985 and 1989, the execution of decisions was suspended, leaving Islamic criminal law in limbo. After years of maneuvering, when the al-Mahdī government finally envisaged the abolition of Islamic criminal law, a military coup d’état preempted the move. It soon became clear that the new military regime was in alliance with Ḥasan al-Tūrābī; his Islamist forces provided the new dictatorship with the necessary ideological trappings. And while the re-introduction of Islamic criminal law, by way of a reformed and improved criminal legislation, was an important part of their agenda, after twenty years of its application, it is clear that there are fundamental differences between the first “revolutionary phase” 1983–1985 and the practice of Islamic criminal law from 1991 to the present. In 1991, a “Criminal Bill” project, a 1988 brainchild of al-Turābī (then incumbent minister of justice), which was temporarily shelved in 1989 for lack of parliamentary acceptance, was resuscitated. Much more diligently drafted, the Criminal Act of 1991 avoided most of the flaws of its 1983 predecessor and thus, to some degree, preempted criticism from Islamist competitors. Given that the “application of the sharīʿa” was a central part of the ideological repertoire of the very Islamists that had come to power, we might have expected a resolute resumption of sharīʿa application. However, this did not happen. Sharīʿa-based criminal law was applied, but its application, from the time the military-Islamist regime assumed power, only led to the implementation of a limited number of severe sharīʿa penalties. Indeed, there is a remarkable divergence between the rhetoric of the al-Bashīr

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regime with regard to the importance of the sharīʿa and the watered-down version it chooses to apply. Medani even suggests that there has been an “… undeclared moratorium on huddud punishments in Sudan ….”13 There are several possible explanations for this phenomenon. First, the al-Bashīr regime needs Islamic criminal law (“the sharīʿa”) in the statutes in order to gain legitimacy in the eyes of its followers. Whether or not all the punishments in the legislation are carried out is of secondary importance in this context. It is not a priority for the regime to apply, with great frequency, all possible Islamic criminal law punishments, as this would most likely provoke domestic resistance and international protest. Sidahmed argues that the military-Islamist regime was not concerned with possible western reactions against the application of sharīʿa since Khartoum and western governments had few relations in the first place. Further, he explains that a more moderate application of the sharīʿa is not likely to improve the regime’s (few) ties with the West, since western countries have excellent relations with countries that do apply the sharīʿa in criminal matters on a regular basis.14 I can generally agree with this argument. However, we should not forget that the Sudan’s choice not to apply the sharīʿa strictly is a rational choice based on a variety of factors. While the government’s main motive may not be to reduce the friction with the monitoring bodies of international human rights conventions the Sudan is party to, it is, nevertheless, one aspect of several that makes this such a rational choice; in addition, this approach appeases domestic opposition and resistance to harsh sharīʿa punishments. Defiant reactions to human rights reports, for example those by Amnesty International, indicate that the government is not immune to international criticism.15 As shown above, the Sudan must also position itself with regard to criticism from international monitoring bodies; while it may lack ties to the West, it does not act in a political vacuum. Further, the regime has long stressed that the application of the sharīʿa is based on the popular demand of the vast majority of the Sudanese.16 Thus, the logic is that, “the regime which enacts shari‘a is by default an embodiment of this will and its legitimate representative.”17 This is certainly the argument the Islamist regime has chosen to propagate. Yet, it goes without saying that 13 14 15

16 17

Medani, “A Legacy of Institutionalized,” 74. For example, Saudi Arabia. On this argument, see Sidahmed, Politics and Islam, 221. See, for example, “The Crododile Tears: A Response by the Government of Sudan to the Highly Dramatic Book Published Recently by Amnesty International under the Title the Tears of Orphans,” Sudan Foundation (London, 1997). See, for example, the introduction to the Criminal Act of 1991 quoted above. Sidahmed, Politics and Islam, 222.

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this argument is flawed. If the demand by the “Sudanese masses” really were overwhelming, how can we explain why the abolishment of the Penal Code of 1983 was only prevented by a military coup that ousted Sudan’s “democratically elected government.” At any rate, according to its own logic, imposing the sharīʿa is an obligation of any government and cannot be subject to a democratic decision making process. Thus, a democratic vote on the introduction and application of Islamic criminal law—the sharīʿa—should not and never did take place. Nor did the National Islamic Front or any of its predecessors or successors, as the main pressure group for the introduction of the sharīʿa, ever win democratic elections at the national level. Both Islamized penal codes, as well as most other sharīʿa related laws, were realized by two dictatorial regimes that suppressed all competing voices, both those objecting to the application of the sharīʿa altogether, such as the Southern parties, the secular-minded parties of the North, and those calling for an alternative version of sharīʿa, such as some of the Islamist parties of the North. As for the National Islamic Front and its different manifestations, it has shown a tactical approach with regard to the propagation of the sharīʿa, and has never lost sight of the higher strategic goal of winning power and control of the state in order to realize its Islamization program. Thus, the National Islamic Front and its predecessors used the sharīʿa question to take a lead in the discussion or otherwise make their influence felt whenever the sharīʿa became a major topic in the national debate. This was the case during the second democratic interlude in 1966–1967 when an Islamic constitution was discussed, in 1978 after “reconciliation” with Numayrī when a committee reviewed Sudanese laws with regard to their compliance with the sharīʿa, in 1983–1984 when Islamic criminal law was introduced, and finally between 1985 and 1989 when the National Islamic Front used the sharīʿa as the decisive argument for or against their joining a coalition government.18 In all these debates, al-Turābī and his comrades were able to use the sharīʿa question to portray themselves as the party that was the most serious about its application. However, attaining power has always been more important than the application of the sharīʿa. When, between 1978 and 1983 most recommendations of the committee were not realized, the Muslim Brothers continued to cooperate with and back the dictatorial and increasingly unpopular Numayrī regime. When Islamic criminal law and other sharīʿa-based laws were introduced in 1983–1984 Muslim Brotherhood members manned many of the courts and did not hesitate to adhere to Numayrī’s directives and thus turn the whole experiment into a cruel and bloody affair. These Muslim Brotherhood judges

18

Ibid., 221.

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(unsuccessfully) indicted members of the hated Sudanese Socialist Union for corruption in order to demonstrate their impartiality and the justness of the sharīʿa. Concurrently, the same judges ordered amputations for the theft of trivial amounts. As shown above, the actual application of Islamic criminal law before the downfall of Numayrī clearly showed a class bias; high representatives of the regime received minor punishments, or went unpunished for the embezzlement of significant government funds. In other words, “sharia … laws are interpreted to strike those who encroach on private property and spare those who steal from the public coffer.”19 Given this impunity for high-level corruption in the Sudan under the al-Bashīr regime, this class bias is still very much present. Since the Muslim Brotherhood and its various political manifestations were never committed to a particular version of the sharīʿa, they were able to be flexible in their demands and positions. These positions ranged from backing (and executing) Numayrī’s particularly harsh version of Islamic criminal law to introducing their own version and limiting its de facto application, with exceptions. As long as it is “the sharīʿa,” content and approach can vary if it serves the aims of the movement. This flexibility, however, has its limits and it is difficult to conceive either side of the (now fragmented) movement conceding to abolish Islamic criminal law or other sharīʿa-based parts of the legislation. In addition to enhancing its legitimacy, the regime, with its rallying cry “taṭbīq alsharīʿa” (lit., application of the sharīʿa) also draws a boundary “within which the regime accommodates or excludes other political forces.”20 While Sidahmed certainly has a point, we must emphasize that, on the one hand, the regime could probably come to terms on the sharīʿa question with the two large sectarian parties. After all, there is substantial sympathy among both parties for the application of the sharīʿa—al-Mahdī had good reasons for his hesitancy in abolishing the September laws while he was prime minister. On the other hand, the application of the sharīʿa, and the matter of whether or not a party is in favor, is only one factor that determines exclusion or inclusion into the ruling regime, and not even a decisive one. Consider the schism of the Islamist movement that took place during and after al-Turābī was ousted. The National Congress Party and the Popular Congress Party are not known to have disagreed on the application of the sharīʿa. The current version of Islamic criminal law is, after all, a brainchild of al-Turābī, and the conspicuous combination of 19

20

The Black Book: Imbalance of Power and Wealth in Sudan (March 2004). Accessed 30 July 2004 online: http://www.sudanjem.com/english/books/blackbook_part1/20040422_ bbone.htm. Sidahmed, Politics and Islam, 222.

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harsh legislation and lenient application was introduced and upheld while alTurābī held a pivotal position of power. The split between the two parties was based on completely different reasons which, in turn, could not be overcome by taking up a common position on this particular question only. Sidahmed’s book, quoted here, was published in 1997—before al-Turābī’s removal and the split of the movement. At the time, Sidahmed’s analysis was certainly much more valid, but with the deep rift in the Islamist movement, the sharīʿa issue is no longer a decisive factor by which to distinguish friends from foes. The combination of Islamized criminal statutes and the selective and rather infrequent application of Islamic criminal law, accompanied by political rhetoric, appears to be sufficient to meet the expectations of most proponents of the sharīʿa in the Sudan. At the same time, the application of Islamic criminal law in the Sudan rarely receives international media attention. Sharīʿa cases are discussed internationally in specific circumstances, for example, when a flogging video appears on YouTube or when a journalist is sentenced to flogging and talks to the international press. But such cases are the exceptions. A thorough reading of Amnesty International and Human Rights Watch reports leaves no doubt about the abysmal human rights record of the Sudan, especially under the military-Islamist rule of president al-Bashīr, but also under his predecessors Ṣādiq al-Mahdī and Numayrī. However, in the face of decades of ongoing war atrocities, habitual torture, and extra-judicial killings, the cumulative contribution of the application of Islamic criminal law to this negative record is certainly sizeable, but even without it the Sudan would clearly have a very poor human rights record.

Final Thoughts The historical survey has shown that the application of Islamic law before the Condominium cannot and did not serve as a model for its modern-day application. In both form and content, modern Islamic criminal law is at best only superficially related to the precolonial practice of Islamic criminal law in the Sudan. Precolonial practices were characterized by only a limited knowledge of the sharīʿa. The claim of some sharīʿa supporters that the application of modern Islamic criminal law represents the removal of a historical wrong (that is, the introduction of the common-law system), and concurrently reinstates an authentic and indigenous system cannot be substantiated, given the profound dissimilarities between the historical practice of Islamic law and its present day codified form. Further, the criminal law as it is applied today, in form and content and despite its (partial) Islamization, is far from being detached from

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its colonial heritage. The Islamization efforts of the 1980s and the early 1990s changed this to some degree, but have made the Sudanese legal system more hybrid than ever before. The present Sudanese criminal law is indeed new and unprecedented. It relies mainly on western legislative techniques and on judicial structures with roots in the system inherited from the former colonial power. In this sense, Islamic criminal law has been grafted onto a secular legal system that preceded the Islamized parts of the legal system and was mostly free from elements that could claim religious legitimacy. In this process, Islamic criminal law has undergone a secularization process with regard to procedure, evidence, and the structures of the court system, all of which are governed by an environment that is clearly a remnant of the Sudan’s pre-1983 legal history. The personnel dispensing justice are secular judges, often trained in secular institutions within or outside the Sudan21 and bound by a multitude of rules, regulations, and structures that do not follow historical models based on the sharīʿa/ fiqh. The same is true with regard to the definition and development of Islamic criminal law, which is no longer in the hands of a class of independent jurists, the fuqahāʾ. Thus, Islamic criminal law, as practiced in the contemporary Sudan, is, to a large degree, shaped by the legal environment in which it exists, and by the political agenda of the regime that has “re”-introduced it. It is the Republic of the Sudan and its institutions which selects, formulates, codifies, applies, and develops the law. The state has not only eliminated all competing voices, religious and political, but it has also established a monopoly that claims the right to define Islamic law in the Sudan today and how it is to be applied. The result of this process is a national version of a mostly fiqhderived Islamic criminal law, that is, a version of the sharīʿa that is limited to a particular nation state, that is, the Sudan. In this assessment of the methodology and nature of Sudanese Islamic criminal law we can only conclude that the approach to the fiqh is highly selective. Specific legal opinions from the four Sunnī schools of law and others have been grafted onto the 1983 and 1991 codes. However, choices seem to have been made with little coherence or discernible direction; this is clear from its inherent contradictions, and from subsequent Supreme Court case law. Sudanese legislators have thus freed themselves from the historically dominant Mālikī and Ḥanafī schools that could, rightfully, claim historical weight and legitimacy in the Sudan. Thus, legislators chose solutions from a wide variety of schools, and thus drew on a wider

21

Supreme Court judges, for example, have been trained at the University of Khartoum, at sharīʿa faculties of other Sudanese universities, in Egypt, in the United Kingdom, in France, and other European countries.

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pool of legal opinions; at times, these solutions represent majority opinions and at times minority opinions of the fuqahāʾ. The legislators’ methodology is also reductionist, in the sense that it has simplified and changed a sophisticated legal system with a large number of (often competing) legal opinions and a complex interplay of crime definitions with their corresponding punishments and procedures, to such a degree that it is only superficially similar to the historical fiqh. The richness of legal reasoning and the multitude of legal opinions in the fiqh only serves as a quarry for the selection of whatever legal opinion the legislators (and the courts) deem fit. These solutions are not always consistent with the fiqh, though generally the Criminal Act of 1991 is closer to the fiqh than the earlier 1983 code. However, clear contradictions with the fiqh remain. In particular, the strong relationship between the gravity of the crime and a corresponding high burden of proof in ḥudūd and qiṣāṣ cases, as provided in the fiqh, has been eliminated. Two important questions arise with regard to this observed selectivity. First, does this selective approach serve a particular legislative purpose? Is there a particular tendency in the selection of solutions to particular legal problems? And, second, have Sudanese legislators managed to devise a systematic approach to the codification of Islamic criminal law that is consistent, logical, and comprehensible? Both questions, as this study shows, must be answered in the negative. While the Criminal Act of 1991 indeed tried to remedy many of the major inconsistencies between earlier codes and the fiqh, it was not consistent in its approach. Important incongruities remain. Thus, legislators chose a half-hearted approach: on the one hand, they brought the Criminal Act of 1991 closer to the fiqh, but without making all of their chosen solutions compatible with the fiqh. In addition, they eliminated entire features of orthodox criminal law. It is also hard to describe the methodological mix as a consistent and systematic approach that could be used for future legislation. Despite the professedly modernist theoretical writings of Ḥasan alTurābī, and the fact that the Criminal Act of 1991 is his brainchild, only some of his reformist ideas found their way into the Criminal Act of 1991. In fact, the Sudanese approach is still rather conservative and surprisingly close to the fiqh, despite all the described shortcomings. In brief, given the result, it is not clear what methodological considerations were involved when these particular solutions were chosen, nor what the overall direction was meant to be, apart from grafting the ḥudūd and qiṣāṣ onto the existing body of criminal law as such and avoiding criticism for not being faithful to the fiqh in the process. It is certainly true that Sudanese legislators do not claim to emulate orthodox fiqh. Rather they propose a mix of sources, some close to orthodox fiqh and some modern, while leaving unclear what the weight of each one ought to be. Yet the divine authority associated with the sharīʿa is invoked when the Islamization of the

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criminal and other codes are described. The regime and its spokesmen persistently use the term sharīʿa; they have no qualms in equating their own version of Islamic criminal law with the term sharīʿa and thus conferring connotations of divine law onto their own political-legal projects. While this approach is meant to enhance the regime’s political and religious legitimacy, the al-Bashīr regime plays on the desire of Sudan’s Muslim population to reaffirm its Islamic identity. If we regard the present state of the Sudanese legal system after more than thirty years of Islamization efforts, it is evident that as a whole, the Sudanese legal system has become even more hybrid than it was before. Its prevalent feature is legal eclecticism. Islamic law stands next to the leftovers of English law. Customary law is still an important pillar of Sudanese legal practice. Egyptian civil law is firmly established and has completely replaced its common law based predecessor. Given the diverse sources from which Sudanese codified and uncodified law draws, one cannot but conclude that the al-Bashīr regime contents itself with the status quo and has given up on further legal Islamization. As to the Islamized Criminal Act of 1991, those elements that are based on the fiqh and those that are not coexist uneasily and are, to some extent, subject to different procedural rules. In Supreme Court law reporting (the sljr) they produce a body of case law that is divided between those cases that are decided with reference to fiqh handbooks and those that are not substantially different from pre-Islamization case law. As to the former, Islamic criminal case law, it has developed since the promulgation of the September laws in 1983 in a self-referential manner; decisions often refer to previous cases of a similar nature and, at times, correct earlier decisions. Supreme Court case law that deals with the Islamized parts of the two criminal codes thus fulfills a variety of roles. It develops the law where the codes are silent and corrects earlier Supreme Court decisions as well as the decisions of the lower criminal courts. What it cannot do, or rather, what it has attempted only on rare occasions, is to question the Islamic nature of the legislation itself. The Supreme Court also cannot openly focus on the normal hierarchy of laws, as would be the case in a completely secular legal system. Here, the sharīʿa clearly predominates and therefore, contradictions between the Criminal Act of 1991 and the Sudanese constitution are of no concern to the Supreme Court. The Supreme Court is not charged with ensuring the constitutionality of Islamic criminal law and none of the published cases under discussion here make reference to the Sudanese constitution or to constitutional court cases.22 The problem extends further,

22

According to the 2005 Interim National Constitution, art. 122 (1) (e), the Constitutional

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since Sudanese Islamic criminal law in many ways contradicts international human rights treaties that the Sudan is party to. The Supreme Court administers justice as a purely national court, as if the Sudan had no obligations under international law. However, the Supreme Court, one could argue, addresses the problems in a different, more subtle way. While not discussing these issues openly, its decisions nevertheless clearly point to a direction that establishes the Supreme Court’s de facto recognition of a number of human rights, such as the prohibition of cruel punishments and the equality of Sudanese citizens. This assessment, however, must be qualified. The Supreme Court serves as an efficient filter for most of the harshest fiqh-based punishments. But this picture, as described above, is not entirely consistent, nor has the Supreme Court a larger role to play with regard to the parallel system of the Public Order Police and Public Order Courts, where harsh floggings are frequently applied, and decisions are only rarely appealed or reviewed by any higher court.23 Needless to say, even if the Supreme Court manages to restrict the application of the harsh fiqh-based punishments, the Sudan’s overall human rights record remains abysmal. Islamic criminal law certainly plays a negative role with regard to the overall human rights situation in the Sudan. An analysis of the reports of international human rights organizations, however, shows that the larger part of the violations committed by the Sudanese regime is not related to the practice of Islamic criminal law in any way. Further, we must note that by its—with few exceptions—non-application of the harsher fiqh-based punishments (at least after their suspension in 1985) part of the Sudanese Islamic criminal law is not fully operational. These laws remain in the statutes because they have a highly symbolic value and because they lend legitimacy—at least in the eyes of its followers—to an autocratic regime that has no democratic legitimacy. These Islamized laws thus clearly serve political and propagandistic purposes. As a codified criminal law addressing real crime, however, the sections of the Criminal Act of 1991 on ḥadd crimes have only limited practical significance, since important parts of these punishments are not, or are only rarely, imposed.

23

Court “… adjudicate(s) on the constitutionality of laws or provisions in accordance with this constitution …” Whether and how the Constitutional Court in its jurisdiction dealt and deals with the obvious contradictions between Islamic criminal law and the various constitutions in the Sudan since 1983 is a relevant question that is, however, beyond the scope of this work. redress, No More Cracking of the Whip, 15.

Glossary of Arabic Legal Terms1 adhan ahliyya ʿāqil ʿāqila arsh bayyina qāṭiʿa bulūgh dalīl qāṭiʿ dalīl ẓarfī, adilla ẓarfiyya diya diya kāmila diya mughallaẓa diya nāqiṣa fāsid ghurra hadara ḥarbī ḥirāba (also muḥāraba, qaṭʿa al-ṭarīq) ḥirz al-ḥirz bi-ghayrihi ḥirz bi-l-ḥāfiẓ ḥirz bi-l-makān al-ḥirz bi-nafsī ḥirz al-mithl ḥirz al-nawʿ ḥukm ḥurma iḥṣān

harm, injury, grievance legal capacity sane solidarity group liable for blood money financial compensation (diya) for injuries unequivocal proof legal majority unequivocal evidence circumstantial proof, circumstantial evidence blood money, blood price, the financial compensation for homicide and injuries full blood money enhanced blood money diminished/lesser blood money irregular, defective (marriage, sale) financial compensation for the loss of a fetus to shed someone’s blood with impunity non-Muslim residing outside the territory of Islam highway robbery, banditry safe place where movable property is kept a safe place guarded by someone else safe place guarded by a guardian safe place in a house or barn a safe place in one’s own house, guarded by oneself safe place commonly used for a specific property safe place for any kind of property without specification sentence of a qāḍī inviolability, sanctity immunity (against temptations through consummation of a valid marriage)

1 Parts of this glossary are adopted from Peters, Crime and Punishment and Layish and Warburg, The Reinstatement.

418 ijtihād ikhāfat al-sabīl ikrāh iqrār qaḍāʾī iṣlāḥiyya ʿiṣma jāʾifa jald jināyāt kafāʾa kaffāra lawth liʿān

liwāṭ maḥram / maḥārim majlis al-qaḍāʾ majlis al-shūra majnīy ʿalayhi māl mutaqawwam maʾmūma maqdhūf maʿṣūm (al-dam) mubāḥ al-dam wa-l-māl mūḍīḥa muhdar muḥṣan(a)

mukallaf mumāthala mumayyiz mustaʾmin

glossary of arabic legal terms independant legal reasoning scaring of passers-by as an element of highway robbery (ḥirāba, qaṭʿa al-ṭarīq) duress legally valid confession house of correction, reformatory, prison legal protection wound in the body that reaches one of the inner cavities flogging crimes against the body equivalence (between culprit and victim in qiṣāṣ cases) penance, atonement, expiation circumstantial or imcomplete evidence against a person making him a suspect of manslaughter dissolution of the marriage through a procedure of mutual imprecation (in case the husband denies paternity but cannot prove zinā) anal intercourse, buggery, penetrare per penem in ano being in a degree of consanguinity precluding marriage court session, judicial council consultative council aggrieved party, victim of a crime valuable good, property head wound laying bare the cerebral membrane victim of qadhf, slandered person inviolable, someone whose life is protected (someone) whose life and property can be taken wound that lays bare the bone someone who does not enjoy inviolability, whose blood can be shed with impunity “immune” (against sexual temptations), i.e., a man or a woman who has consummated a valid marriage and is consequently liable to lapidation in case of illegitimate sexual intercourse legally capable, sane in mind, fully responsible equivalence between inflicted damage (death or bodily harm) and the retaliation or financial compensation reasonable, rational, discerning ḥarbī temporarily admitted to Muslim territory and enjoying full protection of life, property, and freedom

glossary of arabic legal terms muttahim nahb al-nāʾib al-ʿāmm nashl niṣāb nukūl qaḍāʾ qadhf qānūn waḍaʿī qarīna, pl. qarāʾin qasāma qaṭʿ qaṭʿ min khilāf qatl qatl ʿamd qatl bi-sabab qatl ghīla qatl khaṭāʾ qatl shibh al-ʿamd qatl shibh al-khaṭāʾ qawl / aqwāl qiṣāṣ qawad qiṣāṣ fī mā dūn al-nafs qiṣāṣ fī l-nafs qiwāma raʾīs al-qaḍāʾ rajm rashīd ridda / irtidād sariqa (ḥaddiyya) sabb al-nabī shahāda ʿalā l-shahāda shajja, pl. shijāj shubha, pl. shubuhāt shurb al-khamr

419

defendant robbery, plundering, looting attorney general pickpocketing minimal value of the stolen object as a precondition for amputation refusal to testify in court judgment, sentence, decision unfounded accusation of unlawful sexual intercourse positive law evidence, indication procedure based on the swearing of fifty oaths, aimed at establishing liability for a homicide amputation cross amputation homicide intentional homicide indirect killing heinous murder accidental homicide semi-intentional homicide semi-accidental homicide testimony, statement retaliation retaliation (for wounds or injuries) qiṣāṣ for wounds or injuries qiṣāṣ for homicide guardianship chief justice stoning, lapidation reasonable, discriminating, discerning apostasy ḥadd theft insulting the prophet testimony on the testimony of someone else head wound, skull fracture legal uncertainty consumption of wine, and by extension, alcoholic beverages

420 siyāsa sūʾ qaṣd ṣulḥ takhayyur taklīf taqādum taqādhuf taʿzīr ʿuqūbāt walī walī (pl. awliyāʾ) al-dam zinā

glossary of arabic legal terms discretionary justice exercised by the head of state and executive officials, not restricted by the rules of sharīʿa ill intent amicable settlement out of court between parties eclectic expedient legal capacity limitation mutual unfounded accusation of unlawful sexual intercourse discretionary punishments all punishments which can be averted by shubha, i.e., all ḥadd punishments and the two kinds of talio legal guardian private prosecutor, the relatives of a victim of homicide unlawful sexual intercourse

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Sudanese Laws and Legislative Projects1 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

Code of Criminal Procedure, 1924. Penal Code of 1924. Civil Law of 1971 (al-Qānūn al-maddanī li-sanat 1971). Permanent Constitution of the Sudan, 1973. Code of Criminal Procedure of 1974. Penal Code Act of 1974. Attorney General Act of 1983 (Qānūn al-nāʾib al-ʿāmm li-sanat 1983). Basic Rules of Judgment Act of 1983 (Qānūn uṣūl al-aḥkām al-qaḍāʾiyya, 1983). Criminal Procedure Act of 1983 (Qānūn al-ijrāʾāt al-jināʾiyya, 1983). Civil Procedure Act of 1983 (Qānūn al-ijrāʾāt al-maddaniyya 1983). Evidence Act of 1983 (Qānūn al-ithbāt li-sanat 1983). Penal Code of 1983 (Qānūn al-ʿuqūbāt li-sanat 1983). Propagation of Virtue and the Prevention of Vice Act, 1983. (Qānūn al-amr bi-lmaʿrūf wa-l-nahy ʿan al-munkar, 1983). Civil Transactions Act of 1984 (Qānūn al-muʿamalāt al-maddaniyya, 1984). Judiciary Act of 1986 (Qānūn al-haiʾa al-qaḍāʾiyya li-sanat 1986). The Criminal Bill of 1988 (not enacted). Criminal Act of 1991 (al-Qānūn al-jināʾī li-sanat 1991). Criminal Procedure Act of 1991 (Qānūn al-ijrāʾāt al-jināʾiyya li-sanat 1991). Evidence Act of 1993 (Qānūn al-ithbāt, 1993). Sudan Narcotics Drugs and Psychotropic Substances Act of 1994. Public Order Law, Khartoum Governorate, 1996 (Qanūn al-niẓām al-ʿāmm biwilāyat al-Kharṭūm li-sanat 1996 (m)). Constitution of the Sudan, 1998 (Dustūr Jumhūriyyat al-Sūdān 1419 h–1998 m.). Public Order Law, Kassala Governorate, 1999 (Qānūn al-niẓām al-ʿāmm li-wilāyat Kassala li-sanat 1999 (m)). Terrorism Combating Act, 2000. Draft Criminal Law, National Democratic Alliance, 2001 (Mashrūʿ qānūn alʿuqūbāt (al-tajammuʿ al-waṭanī al-dīmūqrāṭī, 2001)). Interim National Constitution of the Republic of the Sudan of 2005 (Dustūr jumhūriyya al-Sūdān al-intiqālī li-sanat 2005). Available online: www.wipo.int/ wipolex/en/details.jsp?id=10720. Accessed 30 April 2017.

1 The list of Sudanese laws is organized by year, then alphabetically. Some of these laws can be found in English and/or Arabic here: http://www.pclrs.com/english/bills-and-laws.

sudanese laws and legislative projects 27.

28. 29.

437

Interim Constitution of Southern Sudan of 2005. Available online: http://www .chr.up.ac.za/undp/domestic/docs/c_SouthernSudan.pdf. Accessed 30 April 2017. Amendment to the Criminal Act of 2009 (al-Qānūn al-jināʾī (taʿdīl) li-sanat 2009). Amendment to the Criminal Act of 2015 (al-Qānūn al-jināʾī (taʿdīl) li-sanat 2015).

List of Quoted Supreme Court Cases Unlawful Sexual Intercourse (zinā)1 Government of the Sudan vs. ʿĀʾisha Ādam Ibrāhim. sljr (1987), no. 80/1405. Government of the Sudan vs. Āmina Bābikr Aḥmad, sljr (1985), no. 118/1405. Government of the Sudan vs. Amīra ʿAbdallāh Aḥmad ʿĀdam, sljr (1984), no. 108/1984. Government of the Sudan vs. al-Ḥajja al-Ḥusayn Sulaymān, sljr (1988), no. 84/1406. Government of the Sudan vs. Ismāʿīl ʿAlī Sulaymān, sljr (1998), no. 326/1997. Government of the Sudan vs. Kalthūm Khalīfa ʿAjabnā, sljr (1992), no. 48/1992. Government of the Sudan vs. Maryam Muḥammad ʿAbdallāh, sljr (1985), no. 21/1405. Government of the Sudan vs. Maryam Muḥammad Sulaymān, sljr (1989), 76/1405. Government of the Sudan vs. Maṣʿab Muṣṭafa Aḥmad, sljr (2000), no. 2000/545. Government of the Sudan vs. Muḥammad Maḥmūd Ṭāhir, sljr (1984). Government of the Sudan vs. al-Ṣādiq Aḥmad ʿAbdallāh, sljr (1989), no. 149/1989. Government of the Sudan vs. al-Sirr Muḥammad al-Sanūssī, sljr (1989), no. 55/87.

Alcohol Consumption (shurb al-khamr) Government of the Sudan vs. ʿAbd al-Ḥamīd Mūsā Aḥmad, sljr (1988), no. 104/88. Government of the Sudan vs. ʿAbd al-Wahhāb ʿAwaḍ Jādīn, sljr (1984). Government of the Sudan vs. Ādam Mahdī Ādam, 36/88. sljr (1993), case no. 220/1993, issued 20 Nov. 1993. sljr (1994), 1329/1994.

Theft (sariqa ḥaddiyya) Government of the Sudan vs. al-Amīn Saʿīd Umm Dabaka, sljr (1985). Government of the Sudan vs. Antūniū Sharīk Kūnj and others, sljr (1992). Government of the Sudan vs. al-ʿAwaḍ Markaz Maʿālī, sljr (1984). Government of the Sudan vs. Burhān Qabr Silāsī and others, sljr (1989). Government of the Sudan vs. Faḍl Muḥammad Nūr, sljr (1984). Government of the Sudan vs. Fītir Watir Dīnq and ʿAwaḍ Muḥammad ʿAbd al-Jalīl, sljr (1983).

1 Cases concerning rape and buggery (liwāṭ) are also listed under zinā.

list of quoted supreme court cases

439

Government of the Sudan vs. Isḥaq Muḥammad Arbāb and others, sljr (1986). Government of the Sudan vs. Khalfallāh ʿAbd al-Laṭīf and others, sljr (1990). Government of the Sudan vs. Muḥammad Bārūd Akul, sljr (1990). Government of the Sudan vs. Shaʿībū Saʿīd Muḥammad, sljr (1986). Government of the Sudan vs. al-Sirr Mīrghanī Khalīfa and others, sljr (1986).

Highway Robbery (ḥirāba) Government of the Sudan vs. ʿĀdam Ḥasan Ismāʿīl, sljr (1984), 1984/17. Government of the Sudan vs. ʿAlī Muḥammad Balah and others, sljr (1986), 1405/208. Government of the Sudan vs. A. Z. (Aḥmad Zayd), sljr (2002), no. 95/2002. Government of the Sudan vs. ʿĪsā ʿUthmān Muḥammad, sljr (2000), no. 50/2000. Government of the Sudan vs. Jamāl Muḥammad Ḥusayn, sljr (1984), no. 84/11. Government of the Sudan vs. Jūn Alīqū Būth, sljr (1984), no. 461/1984. Government of the Sudan vs. Karār Faḍl ʿAlī and others, sljr (1987), 1984/79. Government of the Sudan vs. Mubārak Yūnis Ḥamād and others, sljr (1997), no. 318/ 1997. Government of the Sudan vs. Muḥammad ʿAbd al-Shāfiʿ Sākin, sljr (1984), no. 10/1984. Government of the Sudan vs. Muḥammad al-Nūr and others, sljr (1988), no. 1407/18.

Apostasy (ridda) Government of the Sudan vs. Asmāʾ Maḥmūd Muḥammad Ṭāhā, ʿAbd al-Laṭīf ʿUmar Ḥasaballah, sljr (1986) no. 2/1406.

Homicide and Bodily Harm (qatl / jurḥ) Government of the Sudan vs. ʿAbd al-Ḥamīd Mūsā Aḥmad, sljr (1991), no. 88/104. Government of the Sudan vs. ʿAbd al-Raḥmān Abū Rās Ḥamād, sljr (1992), no. 1405/63. Government of the Sudan vs. Aḥmad Ḥassan ʿUmar and Ādam Aḥmad ʿUmar, sljr (1990), no. 1406/95. Government of the Sudan vs. ʿAlī l-Rīḥ Muḥammad ʿAbdallāh, sljr (1999), no. 1999/202. Government of the Sudan vs. ʿAwaḍ al-Ḥājj Maḥjūb, sljr (1985), no. 1405/145. Government of the Sudan vs. Awhāj Muḥammad a.o., sljr 1985, no. 1405/151. Government of the Sudan vs. Badr al-Dīn ʿAbbās Abū Nūra, sljr (1988), no. 1406/69. Government of the Sudan vs. Baḥr Yaḥyā Muḥammad Aḥmad, sljr (1989), no. 1989/37. Government of the Sudan vs. Bītr Dīnq Shūl, sljr (1998), no. 1998/262.

440

list of quoted supreme court cases

Government of the Sudan vs. Faḍl Allāh al-Samānī Aḥmad ʿAlī, sljr (1989), no. 1987/80. Government of the Sudan vs. Ḥāmid Aḥmad al-Shaykh, sljr (1984), no. 1405/5. Government of the Sudan vs. Ḥamza ʿAlī Kutainī, sljr (1985), no. 1405/188. Government of the Sudan vs. Ḥasan ʿUthmān ʿAbd al-Raḥmān, sljr (1997), no. 1997/138. Government of the Sudan vs. Ibrāhīm Ādam ʿUthmān a.o., sljr (1984), no. 1984/83. Government of the Sudan vs. ʿImād Aḥmad Huwīllū and others, sljr (1989), no. 139/ 1988. Government of the Sudan vs. Ismāʿīl Ḥadūt Ashūt, sljr (1992), no. 1992/32. Government of the Sudan vs. Maḍawī Muḥammad Aḥmad ʿAbbās, sljr (1996), no. 1996/64. Government of the Sudan vs. Maddanī ʿĪsā Bishāra, sljr (1991), no. 1991/41. Government of the Sudan vs. Maḥmūd ʿAlī Sanūsī a.o., sljr (1986), no. 1986/296. Government of the Sudan vs. Majdī ʿAbd al-Majīd Aḥmad, sljr 85/1997. Government of the Sudan vs. al-Maw al-Hawā Kāsā, sljr (1989), no. 64/1987. Government of the Sudan vs. Mubārak Muḥammad Khayr, sljr (1992), no. 1992/62. Government of the Sudan vs. Muḥammad Ḥusayn Muḥammad Khayr, sljr (1985), no. 1405/81. Government of the Sudan vs. Mukhtār al-Tāj Abū Nafīsa, sljr (1985) 456/1405. Government of the Sudan vs. Mūsā Bāshā Hubaylā, sljr (1984), no. 1984/62. Supreme Court case no. 69/1987. Government of the Sudan vs. ʿUthmān al-Zubayr, sljr (1985), no. 1405/602.

Index of People and Places ʿAbbūd, Ibrāhīm 40 ʿAbdallāhi (r. 1885–1898) 35 ʿAbd al-Raḥmān 68 ʿAbd al-Raḥmān, Aḥmad 47 Abū Ḥanīfa 109, 127, 139–141, 144, 181, 312n43 on averting ḥadd 198 on chastity 225–226 on coercion 345 on ḥirāba 271–272, 274, 280 on homicide 312–313 on insanity 353 on intoxicants/alcohol 232, 238 on legal uncertainties 209–210, 244 on liwāṭ 182–183, 195 on qadhf 221–222 on qiṣāṣ 334 on theft 241–242, 248, 254 Abū Qurūn, al-Nayāl ʿAbd al-Qādir 51– 52 Abū Sinn, Muḥammad Ḥamad 23 Abū Yūsuf 127, 139, 141, 143–144, 182 on apostates 298 on ḥirāba 272, 290 on liwāṭ 182, 184 on qadhf 222 on semi-intentional homicide 313 on theft 240, 242 on zinā 183–184 Abū Zahra, Muḥammad 213, 278, 406 Addis Ababa 74 agreement (1972) 42, 48–49, 76 Aḥmad, ʿAwaḍ al-Jīd 51–52, 166, 299 Aḥmad b. Ḥanbal 127, 140–141, 312n43 on chastity 225 on coercion 345 and consent (of victim) to death 346 on ḥirāba 280 on insanity 353 on lapsing of punishment (for theft) 243–244 on liwāṭ as zinā 184, 195 on necessity 160 on qiṣāṣ 334 on returning stolen good 244 on testimonies 292

ʿAjīb of Qarrī, Shaykh 29 ʿAlī, Aḥmad Wad 35n36 Amin, Hosni 75n208 an-Naʾim, Abdullahi Ahmad 66 Asmara 75n208 ʿAwda, ʿAbd al-Qādir 23, 144n215, 253, 341, 352n194, 353n195, 406 al-Azhar University 60, 66, 108 Badrī, ʿAbdallāh 22 Bakr, al-Rashīd al-Ṭāhir 51, 63 al-Bashīr, ʿUmar 4, 75, 116 on apostasy 302 and cedaw 374 domestic opposition to 409 and emergency laws 106 and Ḥasan al-Turābī 91–92 and international criticism 379, 409 and National Islamic Front 77–78 regime 5, 18–19, 24, 93–94, 383, 390, 409, 415 rhetoric of 408–409 al-Baṣrī, Ḥasan 142 Berridge, William 84n246, 90 Bíró, Gáspár 378 Bleuchot, Hervé 2, 33 Brocchi, Giovanni Battista 31 Cairo 75n208 Chad 48 Cromer, Lord 36–37 Dafʿallāh, al-Jizūlī 70 Dār Fūr 32, 102, 198, 382, 388, 392 Sultanate 8, 31 al-Dhahab, Siwār 69–70, 252n53, 253 Dīnār, ʿAlī (1898–1916) 32 Dongola, Christian kingdom of 29 Dunqas, ʿAmara (1504–1534) 29 Durán, Khalid 45, 52 Egypt 60, 68–69, 108 union with 38 El Tayeb, Mohamed Saeed Mohamed Esposito, John 46 Ethiopia 48, 336

376

442 Faysal, king of Saudi Arabia 44 Federal Shariat Court (Pakistan) 385 Fluehr-Lobban, Carolyn 387, 392n66 France 81 Fūnj Sultanate 8 in Sinnār 29 Ūnsāb (leading house of Fūnj) 30 Gallab, Abdullahi 93 Garang, John 70, 93 Hamaj, rule of (from 1762) 30 Ḥāmid, Muḥammad Khalīfa 230n38, 336 Ḥanafī(s) 116, 124, 128–130, 136, 143, 146n222, 149n236, 153, 161, 182, 210, 321n85, 362, 371, 413 on apostasy 297–299 on ʿāqila (solidarity group) 177, 311, 363 on consent (of victim) to death 325, 346–347 on diya (blood price) 175, 310, 321n83 on equivalence 308, 316, 327 on ḥadd 245, 264 on ḥirāba 270, 278, 290 on ḥirz 260n75, 261n78 on intoxicants/drunkenness 152, 232, 234 law/ fiqh 33, 37, 112, 125, 148–149 on legal uncertainties (shubuhāt) 162, 209 on lethal weapons 307 on liwāṭ 182–183, 186 on muḥṣan 181–182, 212 on necessity 160 on puberty 154n261, 155 and punishments 264 banishment 366 capital/death penalty 307, 339–340, 365 flogging 365 imprisonment 366 on qadhf 220–221, 228 on qiṣāṣ 309–310, 319, 342–343 on repentance 163 on restitution 249 on semi-intentional homicide 313 on stolen goods/niṣāb 260, 264 on theft 241, 243–245, 248–249, 265 on victims/heirs being in court 272 on witnesses and testimonies 156, 292

index of people and places Ḥanbalī(s) 139, 143, 146n222, 183, 321n85 on ʿāqila (solidarity group) 311 on consent (of victim) to death 325, 347 on diya (blood price) 175, 310, 321n83 on ḥirāba 270, 272, 278, 290 on homicide 313, 348 on intoxicants 232, 234 on muḥṣan 181 on necessity 160 on puberty 154n261 and punishments banishment 366 capital 307, 339–340 flogging 365 ḥadd, lapsing 264 taʿzīr 366 on qadhf 220–221 on qiṣāṣ (retaliation) 308, 310, 319, 336, 342–343 on restitution 249 on theft 240–242, 245, 248–249, 265 and witnesses 156 on zinā 182 Ḥassūna, Badriyya ʿAbd al-Munʿim 143n210, 241, 246 Ḥusayn, ʿAbd al-Jalīl Ādam 290 al-Ḥusayn, Lubna 1, 91, 392n65 Ibāḍiyya 142 Ibn ʿĀbidīn 366 Ibn Abī Laylā 127 Ibn Ḥanbal. See Aḥmad b. Ḥanbal Ibn Ḥazm 142 on drunkenness 152 Ibn Qayyim (al-Jawziyya) 132 Ibn Qudāma 144n215, 183 Ibn Taymiyya 183 Idrīs, Bahāʾ al-Dīn 48, 62 Indonesia 383 Iran 1, 105 ʿĪsā, ʿAbdallāh al-Fāḍil 290 Ishag, Mariam Yahya Ibrahim 1 Jacobs, Scott H. 50, 54 Jād al-Ḥaqq 60 Jaʿfariyya 213n113 Jaʿfar al-Ṣādiq, Imām 213 al-Jaʿlī, ʿAbd al-Mālik 166 Jesus, nature of 296

index of people and places Johansen, Baber Juba 56, 101

148, 362

al-Kabbāshī, al-Mukāshifī Ṭāhā 24, 62–63, 65–67, 69 al-Karsanī, ʿAwaḍ 21 Kāsānī 182 Kassala (governorate) 84 court of appeal in 252, 260 laws of 87–88 Public Order Law (1999) of 84, 86, 88– 89 Kenyon, Carleton 110n23 Khalid, Mansour 44, 54 Khalīl, Abdel Magid Hamid 48 Khartoum 32, 71, 86–87, 98, 151, 231, 388, 392, 409 application of sharīʿa in 101 court of appeal in 33 general criminal court of 340 non-Muslims in 151 Public Order Act (1996) of 84 Public Order Law (1999) of 86, 88, 90 refugees in 105, 212 Kok, Peter Nyot 40, 42, 48, 62, 105n342 Krüger, Hilmar 104n337 Layish, Aharon 2, 81, 112–113, 115, 269, 402 Libya 105 Luṭfī, Jalāl 22, 39 on English law 103 al-Mahdī, Aḥmad 54 al-Mahdi, Mariam 91n294 al-Mahdī, Muḥammad Aḥmad (1843–1885) 34–35 army of 33–34 al-Mahdī, Ṣādiq 22, 57–58, 73–75, 412 and Muslim Brotherhood 46 and Numayrī 45, 54, 56 and September laws 71–72, 77, 408, 411 and sharīʿa 25, 56, 58, 72, 74 and al-Turābī 92 al-Mahdī, Sayyid ʿAbd al-Raḥmān 40 al-Mahdī, Ṣiddīq Ramaḍān 62 Mālik 127, 134–135, 140–141, 144, 199, 312n43 on accomplices 280 on chastity 225 on coercion 345

443 on ḥirāba 274, 280, 290 on insanity 353 on lapsing of punishment 243–244 on liwāṭ 183, 195 on necessity 160 on niṣāb 246 on pregnancy as proof of zinā 184 on qadhf 222 on qiṣāṣ 334–335 on returning stolen good 244 on theft 240–241, 243–245, 254 Mālikī(s) 3, 128, 139, 140, 146, 153, 166, 170, 182, 321n85, 413 on alcohol/intoxicants 232, 234 on apostasy 297 on consent (of victim) to death 306, 325, 346–347 on diya 310, 321n83 on equivalence 315 on execution in way perpetrator killed victim 307 and heinous murder 315, 318, 326 on ḥirāba 271–272, 290 on homicide/murder 313, 322–323, 348, 360 on liwāṭ 183–184 madhhab 30, 33n22, 112 on muḥṣan 212 and punishment banishment 366 capital 339–340 flogging 365 imprisonment 366 on qadhf 220–222 on qiṣāṣ 309–310, 319, 342–343 on restitution 249 on solidarity group (ʿāqila) 311 on theft 249, 260, 264–265, 267, 279 on witnesses and testimonies 156, 292 Mallat, Chibli 21, 25 Managil Province, Gazira State 387n46 Masaalit tribe (Dār Fūr) 387n49 Medani, Amin M. 169n323, 409 al-Mīrghanī, Aḥmad ʿAlī 45 al-Mīrghanī, Muḥammad ʿUthmān 58, 74, 77 al-Mīrghanī, Sayyid ʿAlī 40 Mubarak, Hosni 60 Muḥammad (Prophet) 34, 163, 296 insulting of 301–302

444

index of people and places

on intoxicants 232 on liwāṭ 195 on stoning 182 Muḥammad, Fatḥī Khalīl 24 Muḥammad ʿAlī 29 Mukhtār, Wahbī Muḥammad 23 Mustafa, Zaki 33, 43 al-Muṭīʿī, Shaykh 59 Naṣīf, ʿAbdallāh ʿUmar 60 New Halfa 260, 261 Nigeria 1 Numayrī (/regime of) 2, 4, 76, 410, 412 allies of 60 on apostasy 299 and application of sharīʿa/Islamic law 68, 71, 105, 301 coup d’etat of 4, 41 criticism of 64 emergency courts/courts of instantaneous justice 24, 398 and ‘Islamic path’ 44–45 and Islamization 52–53, 66 of legal system/penal system 53–54, 367, 408 and judiciary 61 “legal revolution” of 6, 8, 11, 42–43, 50–51, 61 motives of 54–56 and Muslim Brotherhood 68, 76 religious beliefs of 44, 46, 53 resistance/opposition to 45, 61, 71, 302 revolutionary phase of 406 Nyala 387n46 Osman, A.A.M.

55, 61, 63, 68–69

Pakistan 1, 105, 108, 383, 385 Peters, Rudolph 18, 364 Qadrī, Muḥammad; The Code of Mohammedan Personal Law According to the Hanafite School 112 Qarrī 30 Raḥma, Bashīr Ādam 24 Ramadan, Kamal 75n208 Riḍā, Rashīd 213

al-Ṣādiq, Imām Jaʿfar. See Jaʿfar al-Ṣādiq Ṣāliḥ, ʿAbd al-Maḥmūd 71 Saudi Arabia 1, 4, 50, 54, 60 Schmitt, Arno 183, 224n18 Scholz, Peter 3, 143n211 al-Shāfiʿī 127, 135, 140–141, 144, 161, 312n43 on chastity 225–226 on ḥirāba 272, 274, 290 on insanity 353 on legal uncertainties 243–245 on liwāṭ 195 on necessity 160 on niṣāb 246 on qadhf 222 on qiṣāṣ 334 on testimonies 292 on theft 240–242, 245, 254 Shāfiʿī(s) 30, 128, 130, 136, 143, 321n85 on coercion 345 on consent (of victim) to death 325, 346–347 on diya 310, 321n83 and execution in way perpetrator killed victim 307 on ḥirāba 271, 278, 290 on ḥirz 260n75 on homicide 313, 348 on intoxicants/drunkenness 152, 232, 234 on joint robbery 293 on liwāṭ 183–184 on marriage of apostates 299 on muḥṣan 181 and punishments banishment 366 capital 339–340 collective 271 flogging 365 imprisonment 366 taʿzīr 366 on qadhf 220–221 on qiṣāṣ (retaliation) 308–310, 319, 336, 342–343 on repentance 163 on restitution 249 on solidarity group (ʿāqila) 311 on theft 241, 248–249, 265 on zinā 156, 182–183 Shāh, Lalitt Ratnalal 66–67

445

index of people and places al-Shaybānī 127 on apostates 298 on ḥadd penalty for zinā 183 on liwāṭ 182–183 on semi-intentional homicide 313 Shīʿī(s) 181n9 on apostasy 297–298 fiqh of 112, 359n220 on liwāṭ and zinā 195 on marriage of apostates 299 on puberty 154n261 Twelver 142, 213, 406 Sidahmed, Abdel-Salam 3, 79, 199, 406, 409, 411–412 Sinnār 29–32, 102 Soba, Christian kingdom of 29 Sudan/Sudanese 1, 383 criminal law 413 demand for/application of sharīʿa 409 Islamic law 1–2 judiciary (al-haiʾa al-qaḍāʾiyya) 21 liberation/independence of 34, 38–39, 103 as multi-ethnic, multi-lingual, multireligious 3, 10, 74, 97, 400 precolonial 7, 412 regime, as guardian of Islam 394 Sulaimān, ʿAlī 21 Sulaimān, Badriyya 24, 51

al-Ṭāhir, Ḥājj Ādam Ḥassan 143n211 al-Ṭayyib, ʿUmar Muḥammad 59, 63, 68 al-Turābī, Ḥasan 4, 11, 24, 45–48, 50–51, 54, 69–70, 73–74, 77, 383, 395, 408, 410–411, 414 on apostasy 300–301 and al-Bashīr 91–92 and Criminal Act (1991) 83 and current version of Islamic criminal law 411–412 and jihād against the South 94 methodology of 79–82, 84, 396–397 personality cult of 91–92 and power struggles 93 vs. Republican Brothers 59 and support of Numayrī 55

Ṭāhā, ʿAlī ʿUthmān Muḥammad 92–93, 102 Ṭāhā, Maḥmūd Muḥammad 19, 58–59, 65, 299 alleged apostasy of 115 death sentence/execution of 60n158, 99n319, 302, 377, 390 flaws in trial of 300

Ẓāhirī school 406 Ẓāhiriyya 143 al-Zahrā, Ḥusayn Ibrāhīm w. Zaydīs 142, 406 on liwāṭ and zinā 195 Zein, Ibrahim 51–52, 166

Uganda 48 United Arab Emirates 108 United Kingdom 81 United States 68–69 ʿUthmān, Jalāl al-Dīn Muḥammad Vasdev, Krishna

23

Warburg, Gabriel 2, 44, 59, 402 Wingate, Reginald 38 Yūsuf, Dafʿallāh al-Ḥājj

63, 116, 398

35

23

Index of Subjects and Terms abduction/kidnapping 155, 264n92, 324 abetment 131, 166, 328, 360 abuse/cruelty 135, 228, 370, 400 sexual 85 accomplices 256–257 assistant (muʿīn), in crime 280 ḥadd punishment for 293 minors as 254–255 accusations 226 of liwāṭ 224 of negation of lineage 224, 226 unfounded, of unlawful sexual intercourse 223–224, 226, 228, 392 (See also qadhf ) written 223, 229 (See also slander) of zinā 220 accused 85, 134 presumed innocent, and rights of 110, 120 women 204, 391 actus reus (punishable offense) 151–152 addiction 133. See also drugs adultery 31, 34, 147, 179n2, 185, 191, 223n17, 375, 385, 387n48 adulthood, signs of 291 adult(s) 132, 147, 191, 197, 206, 214, 272, 289 definition of 154, 173 ‘of age’ (bāligh) 221, 232, 239, 297 African Charter on Human and Peoples’ Rights (achpr) 374, 381–382 age. See also puberty; underage (children) of criminal responsibility 379–380 legal/of adulthood 137, 152, 186n38, 334, 382, 396 limits, for punishments 167–169 minimum and maximum, of offender 168, 289, 379 of minority/puberty 153–155 Agency Act (1974) 43 aggravating circumstances 170, 368. See also mitigating aggrieved (party) 95, 192–193, 228, 240. See also victims bringing charges 217, 267 and forgoing rights 229, 365 and pardons 163, 250, 368

presence at trial 248–249, 267 testimonies of 144, 272, 292 agnatic group 309, 311, 341. See also kinship; relatives alcohol 107, 235n25, 237 banning/prohibition of 47, 55, 113–114, 237 and being witnesses 133, 238 and Christians/Jews 232, 234 Criminal Act (1991) on 233–234 dealing in (i.e., producing, selling, transporting, buying) 231, 234, 236– 237 destruction of 167–168 drinking/consumption of 19, 34, 124–125, 127, 139, 148, 163, 231, 235 Penal Code (1983) on 234 in Public Order Court system 399 Qurʾān/sharīʿa on 231–232 -related offenses 127, 231–237, 391–392 and repentance 163 role of Southern women (brewing and selling) 231, 391 shurb al-khamr 27, 140, 235 smell of 124–125, 127, 139, 147–148, 238 in South 150 symbolic nature of ban/government attitude 235, 237 ʿālim 81–82 alms tax (zakāt) 47, 98 amendments 397 on apostasy (in 2015) 301–302 to constitution(s) 64–65 to criminal procedure 110, 401 on rape (in 2015) 190, 192–193, 215 amnesties 118, 392, 398 Amnesty International 9, 383, 385n39, 386n45, 388, 389–390, 392, 409, 412 amputations 14, 20, 33–34, 49, 55–56, 62, 69, 79, 122, 126, 144–145, 150, 164, 240, 282, 381, 385, 387, 390, 398, 408 application/implementation of 105, 389, 391, 403 conditions for 265 for ḥadd theft 247, 389

index of subjects and terms and lapsing of punishment 258, 269 of minors/children 379–380 qaṭʿ 239, 255, 332 single and cross- 13, 166, 188, 192, 258, 271, 274, 278, 339, 369, 384, 387n49, 388n50, 391 Supreme Court confirmation/review of 123, 389, 401 Anglo-Egyptian Condominium (1898) 3–4, 8, 11, 36–38, 103, 111–112, 412 and flogging 369 Anglo-Indian colonial legislation 37, 103 animists 49, 212 Anṣār 41, 45–46, 48, 54, 56, 58, 72 coalition with National Islamic Front 92 Anṣār al-Sunna 102 Antichrist (dajjāl) 66 Anyanya i 49 apostasy/apostates (ridda; murtadd) 1, 19, 27, 57, 60, 65–67, 83, 115, 124–125, 163– 164, 296–297, 299n17, 300, 393–394 burial of 299 as (ḥadd) crime 297, 377 Criminal Act (1991) 301–302, 377–378 Criminal Bill (1988) on 300 definition of 301–302 and drunkards 297 ḥadīth and Qurʾān on 296 killing of 312–313 and loss of inviolability 306 and mentally ill 297 and minors 297 and non-Muslims 150 punishments/penalties for 79, 99, 126, 297, 301–302, 390 death penalty 296, 298, 302, 385 recanting/repenting 298–301 vs. religious freedom 378 and women, marriage 297–299 appeal(s). See also court(s), of appeal right to 62, 120, 382, 399 waiving right to 238 ʿāqila. See solidarity group Arab nationalists 39, 41 oil money 47 socialism 54 unity 42

447 Arabic as official language 40, 43, 98 sources in 2 Arab League 108 arms/weapons 270, 279, 322–323, 388n50 characteristics of 307, 313 kinds (lethal vs. non-lethal) 307, 313, 319 use of, in robbery/ḥirāba 274, 288 arrests 106, 119 in sweeps/raids 85, 90 ascendants 191. See also descendants; relatives of victim 308–309, 359 assault imminent 155 indecent 375 physical 31 (See also bodily harm) sexual 196, 204 attorney general 110–111, 119, 398 authority(ies) 189, 325 compulsion from 345 local 88 sharīʿa as divine 407, 414–415 of state 82, 337 Ba’athists 39, 41 bail 123 banditry (ḥirāba) 125, 163–165, 273, 280, 306. See also ḥirāba banishment/exile (nafy/taghrīb) 109, 166–167, 170, 181, 183, 257, 289n57, 365– 366 life sentence with 258, 274, 276, 278, 281– 282 as punishment for ḥirāba 271, 274 Qurʾān and Sunna on 366 banking 67–68, 114 Islamic system of 56 laws/act 46, 104 Basic Rules of Judgment Act (1983) 52, 79, 112, 115, 281, 283, 294, 328, 377, 404– 405 betrayal (ghadr) 327 blameworthiness 151, 356 blasphemy 34, 301–302, 385n40 blood money/price 116n59, 305, 308, 310, 313, 317, 331, 407. See also diya as diya 37, 108, 167, 169, 171, 393

448 fuqahāʾ (Muslim jurists) on 171 liability for 314–315, 331 and religion, gender 171, 175, 310, 317, 363, 400 bodily harm 27, 110, 113, 116n59, 122, 130–131, 135, 148, 164, 171, 178, 336, 357, 395, 400. See also wounds/wounding and broken bones 334, 361 categories of 315 accidental 169, 176–177, 362 intentional 133, 176–177, 305, 315, 332, 348, 358, 362 semi-intentional 169, 176, 332, 358 and diya for 171, 176, 358 Penal Code (1983) on 332, 357 qiṣāṣ (retribution) for 315, 332–333, 358– 359, 361, 385, 390 in robbery 280 and self-defense, as justification 156 in South/Southern(ers) 358 Supreme Court on 304 body parts 175, 333 organs/members, loss of 317, 336, 358 (See also amputations) tariff list/value of 167, 317, 394 booty 265 brigandage 287. See also ḥirāba definition, forms of 273, 276 in Penal Code (1974) 275 brothels 188. See also prostitution burglary and house-breaking by night 276, 290, 324 and intent 276, 284 businesses/professional activities (criminalized) 90 hairdressing salons and tailors 87–89 caliphate, doctrine of 57 capital punishment 34, 37, 164, 188, 209– 211, 213, 258, 276, 288, 365, 391n62, 394n1. See also death penalty; hanging; punishments/penalties; stoning case law 17, 407 of Supreme Court 17, 20, 113, 171, 176, 363, 403, 413, 415 cassation 123 causation 153 vs. fault 331, 353

index of subjects and terms celebrations 86 Central Committee of the Sudan Socialist Union 47 centralism 32 chastity 221, 229 definition of 223n17, 224–226, 229 chief justice 110, 116, 118, 402 of Supreme Court 15, 61 Child Act of 2010 380–381 children 240, 379. See also minors; underage (children) and criminal offenses 153–154 illegitimate 200, 387 justice system for 380 punishments for 154, 173, 370, 379– 380 rights of 373, 380 Christianity/Christians 15n30, 97, 99n320, 212, 343, 377, 390n58 and alcohol 232, 234 discrimination against 99 recognition/rights of 43, 49 citizen(s)/citizenship 10, 363, 401 equality/equal rights of 95, 400, 416 and Islamic criminal law 401 civil. See also war, civil cases 129, 136–137 courts 38, 116, 173 damages, compensation for 314 jurisdiction 350 laws/codes 19, 21, 103, 298, 331 Egyptian 33, 103–104, 415 Jordanian 104 Ottoman (1876) 104 liability 173 matters 14 right(s) (ḥaqq madanī), diya as 336n146 servants 172 (See also public, servants) society 101 strife 389 Civil Code (Egypt, 1949) 42 Civil Evidence Code (1971) 42 Civil Justice Ordinance (1929) 43 Civil Procedure Act (1974) 43 Civil Procedure Act (1983) 52 Civil Procedure Code (1972) 42 Civil Transactions Act (1984) 52, 104 Civil Transactions and Procedures Act (1974) 178

index of subjects and terms claims of God (ḥaqq Allāh) 124–125, 132, 148– 149, 163, 305, 364–365, 368 of men (ḥaqq adamī) 124–125, 132, 148, 163–164, 222, 305, 315, 364–365, 368 of private prosecutors 332–333, 337, 365 public/of society/state 149, 337 class bias 62, 411 closure, of premises 89, 168, 192, 396. See also forfeiture Code of Criminal Procedure (1974) 110 codification 246, 405 fiqh-based 7, 142 of Islamic criminal law 26, 149, 179, 394, 414 methodology of 60 process 55 of sharīʿa 5–6, 58, 407 coercion 152, 155, 157, 187, 198, 213, 344–345, 351n188. See also duress; force fiqh on 157–158, 345 collective. See also conspiracy, criminal liability/responsibility 31, 151, 166, 275, 289 punishment 266n98, 271, 288 theft 265, 267 colonial codes 304, 353, 361, 391n62 heritage 39, 41, 169n323, 413 power 413 Combating of Terrorism Act (2001) 106 Committee on Economic, Social and Cultural Rights 383 common law 3, 8, 19, 38, 42, 67n184, 78, 103, 111, 415 system 16, 51, 103, 412 tradition 19, 78, 404 compensation 125, 219, 288, 317. See also diya financial 34–35, 171, 177–178, 194, 204, 241, 305, 311, 315, 334–335, 355, 389–390 penalties (al-jazāʾāt al-taʿwīḍiyya) 109, 369 comprehension (idrāk) 352–353 and reason 351–352, 355 Comprehensive Peace Agreement 96, 100– 101 compulsion 120, 344–345. See also coercion; duress; force

449 by an authority 345 and sexual intercourse 197 confessions 120, 127, 129, 136, 139–141, 145– 147, 184, 191, 199–201, 207–208, 222, 242, 261, 272, 281, 289, 297, 311 accuracy of 243 in civil cases 137 retracting/withdrawing 129, 137n180, 139–141, 162, 198–202, 208–209, 216, 218, 222, 237, 242, 244, 250, 263, 272, 282– 284, 293 unequivocal/unretracted 139, 141, 145, 205–206, 257, 291, 342 voluntary/of free will 141, 217 consensus 98, 114, 209 national 40, 97, 114 consent 100, 186–187, 191, 193, 344. See also free, choice/will Criminal Act (1991) on 347 lack of/without 189–190, 193, 197, 214 and minors 186, 188n46, 190, 197, 214 of victim, to homicide/harm 169, 306, 322, 325, 346–347 conspiracy, criminal 164–165, 266, 388n51 constitutional conference, national 74 court cases 415 decrees 383 law 70 system, undermining 372 Constitutional Court Act (1998) 13n22 Constitutional Court Act (2005) 13n22 constitution(s) 50, 59, 65, 94–95, 114 of 1973 64, 69, 113, 115 of 1998 10, 79, 95–96, 98, 100, 104, 114, 384 amendments to 64–65 Interim National Constitution (2005) 95–98, 100–101, 104–105, 114, 151, 378, 384 Islamic/Islamization of 39, 41, 50, 64, 72, 105 permanent (of 1973) 41, 43, 67 rights in 394 secular 64 as source of law 67 for Southern Sudan 100 transitional (1956) 39–40, 69 transitional (1985) 75–76, 114 Contract Act (1974) 43

450 contracts, and legal uncertainties 181, 209, 211. See also legal uncertainties contradictions 207, 284, 345, 413. See also incompatibilities/inconsistencies between constitutions and law codes 113–114, 394 between crimes and punishment 281 and Criminal Act (1991) 415 and discrepancies in testimonies 128, 137, 162, 237, 294 with fiqh/fuqahāʾ 53, 63, 65, 173, 200n83, 237, 267–268, 277, 279, 281, 287, 291–292, 294–295, 318, 324, 326, 361, 370, 405, 414 and inconsistencies in Penal Code (1983) 229, 320n82, 353, 357, 361, 367, 404–405 in laws 268, 394 between laws and international treaties 83, 375, 377 with sharīʿa 13, 52, 67, 111, 124, 250, 258– 259, 283–284, 402, 404n12 Convention against Torture (cat) and Other Cruel, Inhuman or Degrading Treatment or Punishment 381–383 Convention and Protocol Relating to the Status of Refugees 381 Convention on the Elimination of All Forms of Discrimination against Women (cedaw) 10, 374 Convention on the Prevention and Punishment of the Crime of Genocide (cppcg) 376, 381 Convention on the Rights of the Child (crc) 10, 374, 377, 379, 381–382 conversion (religious) 297, 376, 378 to Christianity 390n58 under duress 297 to Islam 163, 297, 342 conviction(s) 14, 109, 120, 123, 235n25 for liwāṭ (buggery) 225, 229 overturned/quashed by higher courts 199, 204, 278, 385, 386n45, 387 for qadhf 217, 222 under September laws (1983) 69 for zinā 210, 225 co-ownership 241 co-perpetrators 256 corporal punishment 30, 83, 369–370, 381, 384, 399, 401 absolute prohibition of 379

index of subjects and terms based on sharīʿa 385 of children 379 flogging 365 (See also flogging) and Penal Code (1983) 408 corrective measures (taʿdīb) 153 corruption 47–48, 50, 54, 63, 68, 73, 411 coups d’ état of 1989 26, 75–77, 105 of Anṣār 48 military 11, 410 court(s) 25, 32, 362, 381, 396 accountability of 357 of appeal 13, 21, 32, 65–67, 94, 115, 117–118, 123–124, 196n71, 205, 258, 278, 282, 387, 396 in Kassala 252, 260 in Khartoum (majlis ʿumūm al-Sūdān) 33 in Atbara 256 civil 38, 116, 173 classical Islamic 14 constitutional 95 criminal 117–118, 123 of al-Fāshir 197 in Khartoum 340 in Omdurman 341 of al-Qaḍārif 252 district 117–118 emergency/of instantaneous justice 24, 57, 61–64, 68, 398 latitude/discretion of 302–303, 326– 327 local (majlis maḥallī) 32 lower 13–14, 94, 386n45, 402, 415 military 119 national 416 native/tribal 37–38 people’s criminal (courts)/town or rural 117 personal status 78 of prices and public order 236 secular (niẓāmiyye) 33 special 57, 117 system/structure of 5, 27, 35, 413 crime rate 61 crimes/offenses 14, 73, 121, 123, 154–155, 170, 181, 280, 284, 331, 369. See also ḥadd; non-ḥadd; qiṣāṣ; taʿzīr aspects/elements of 151, 279, 292

index of subjects and terms capital 30–31 by children/minors 153–154, 357 in Criminal Act (1991) 191 curses/insults 34, 301–302 dancing 34, 86 (See also entertainment) definitions of 5, 273, 280, 285, 324, 338, 361, 378, 395, 414 and fiqh 160, 163, 188, 276, 287, 394 ḥadd 163, 188, 280, 286–287, 294, 363, 367 and intention 164, 168 against mustaʾmin (protected nonMuslims) 293 non-ḥadd 79, 122, 246–248, 251, 261, 263, 268, 285–286, 295, 396 in Penal Code (1983) 286, 367, 370–371 political 109, 328, 368, 371–372, 393 proof of 287, 363, 414 of public order/disturbance 250, 388 of public servants 109 and punishments 294, 369, 391, 396 (See also punishments/penalties) proportionality/balance of 53, 226, 230, 281, 320, 323, 332, 337, 354, 360, 367–368 robbery (See robbery; theft) severe/heinous 276–278 sexual 192, 215, 223n17, 371 against state/society 65–66, 106–107, 157n273, 165, 388n51 and status of chastity (maqdhūf ) 225– 226 taʿzīr 227, 280, 286–287, 294–295, 367, 370–371 victimless 148 Criminal Act (1991) 2, 4–5, 8–9, 11, 16, 24, 27, 75, 78–80, 84, 89, 99–100, 105, 108– 109, 111, 115–116, 123, 126–127, 150–151, 156, 164, 192, 202, 260, 266, 300, 331, 344, 356n203, 393, 396, 399 on alcohol/drunkenness 152, 233–234 on apostasy 301, 377–378 on body parts, list of 358 and civil strife 389 compatibility with fiqh 338, 342, 347, 353, 355, 361, 393, 405, 414–415 and confessions 209 on consent 347 contradictions with constitution 415

451 contradictions with iccpr 381 definitions in 168 and discrepancies/incongruities addressed 361 and discrimination against non-Muslims 378 disfavors women 217 on diya 171, 175–176 on duress (ikrāh) 157 executions of groups 169 and fiqh/fuqahāʾ 266, 339, 345, 356 on ḥadd 263–264 on ḥirāba 287–290 on homicide 345, 361 accidental 356 culpable 350 from sudden fight 325 on insanity/mental infirmity 351, 353 Islamized 94, 304 on Muslim vs. non-Muslim offenders 191, 215 on necessity 158, 161 and pardoning of offenses 170 on provocation 351 on puberty 154–155 and punishments/penalties 167 floggings 169 in Qurʾān 289 on qadhf 223–224, 226–227 remedying flaws in earlier codes/Penal Code (1983) 259, 318, 354–355, 368, 393, 397, 405, 408 on Southerners and fiqh-based punishments 395 and taʿzīr 170, 358, 368, 371–372 on theft 255–256 on zinā, liwāṭ, rape 189–191, 197 Criminal Bill (1988) 78, 80, 109, 125–126, 259, 396 on amputations 255 on apostasy 300 drafting of 24, 27, 75 on ḥadd 263 on ḥirāba 287 on qadhf 223, 226–227 on zinā 189 Criminal Procedure Act (1974) 43 Criminal Procedure Act (1983) 9, 52, 110–111, 134, 164, 339, 397–398

452 Criminal Procedure Act (1991) 9, 14, 111, 120, 126–127, 398–401 criminal procedure act [first, in 1899] 37 Criminal Prosecution Bureau 119 criminal(s). See also offenders; perpetrators/culprits acts, joint 264, 266 cases/matters/suits 14, 119, 129, 137 proof in 136–138 circulars 64, 79, 110, 116, 133, 167, 171, 208, 251, 267–268, 320, 358, 398 on lapsing/remitting of ḥadd 208, 250–251, 268 on necessity 142 on taʿzīr penalties 362 conspiracy (See conspiracy, criminal) gangs 276–278 intimidation/force 131, 256n64 law/codes 10, 21, 26, 372n40 offenses 154–155, 331 (See also crimes) organization 372n40 procedure, definitions of 5 responsibility 152–153, 161, 164, 166, 173, 232, 253, 297, 331, 348, 355–356, 359– 360, 379–380 criticism international 51 of Penal Code (1983) 147, 337 of Sudanese govt 383, 394, 409 of Ṭāhā’s execution 302, 394 crucifixion 79, 150, 166, 168, 188, 192, 271, 274, 291, 339, 369, 371, 381, 387, 391 with cross-amputation 275–276 and execution 275–276, 289, 369, 387n49 fuqahāʾ (Muslim jurists) on 289 implementation of 403 Cruel, Inhuman or Degrading Treatment or Punishment (cidtp) 381, 383 cruelty. See also punishments/penalties and inhuman, degrading, severe punishments 110, 113, 276, 373, 379, 382–383, 416 cultural domination 49 curses/insults, as crime 34, 301–302 of Prophet Muḥammad 301–302 custody (qiwāma) 189 customary law 3, 8, 12, 29, 31–33, 38, 46–47, 64, 67n184, 78, 102–104, 105n342, 112, 415

index of subjects and terms as source of legislation 43, 111 customs 114 Sudanese 86 cutting off limbs 332. See also amputations; body parts defined 357 and mitigating factors 159 and necessity 160–161 damages 152–153, 155, 314, 353 compensation for 125, 178, 334 danger 169, 276, 366 imminent, grave 155, 158 dār al-ḥarb 139, 163, 312, 329 dār al-Islām 312, 366 death 155, 213, 369. See also homicide; killing; murder by choice/with consent of victim 322, 325 fear of, and self-defense 155, 324 and necessity 158, 160 by negligence 330 by qiṣāṣ (retribution/retaliation) 128– 129, 343 in same manner offender caused 370, 372, 395 sentences 121–124, 380, 389n53 threat of 157–158, 255, 344–345 death penalty 1, 13, 19, 29, 62, 66, 75n208, 83, 99, 121–122, 133, 150, 170, 192, 319–320, 324, 329, 399 abolition of 83, 381 age limits for 167, 379, 382 for apostasy/apostates 296, 298, 302, 385 in Criminal Act (1991) 167–168 as deterrence 389 and fiqh 111, 321, 324–325 and ḥadd 114, 168, 379, 394 for murder/intentional homicide 344– 345 and qiṣāṣ 114, 168, 321, 361, 379, 391, 394 for recidivists 366 review of, by Supreme Court 106, 401 right of ruler/state 361, 365 sharīʿa on 168 and taʿzīr 168, 366, 370–372, 394 for unintentional death 330 for zinā and liwāṭ 193, 385–386, 390

index of subjects and terms debt national 47 and theft 263–264 decentralization 43 decolonization 2 defamation 150, 223, 227, 303 mutual 229 and printed matter 226–227 punishment for 226, 228–229 defendants. See also criminal(s); offenders; perpetrators/culprits accounts/statements of 251, 350 and perpetrators, confessions of 184, 281 defense 352. See also self-defense of accused person 85 and necessity/duress 156–158 proportional to attack 323 democracy 76, 82, 96 democratic interlude (1964–1969) 410 interlude (1986–1989) 75–76 legitimacy 11, 100 system 82 Democratic Unionist Party 25n59, 39, 43, 48, 71, 73–75, 301 demonstrations 72 denial 228, 243 of confession 141 oaths of 129 of zinā 197, 199 descendants 191 and ascendants/relatives, and theft 245, 250, 263 killing ascendant 342 of perpetrator 308 and qadhf 221, 228 descent, negation of (nafy al-nasab) 220. See also lineage detentions 106, 154n259 in reformatory (for minors) 167, 173, 254– 255, 369, 379 deterrence 173, 362, 366 death penalty as 389 dhimmīs 4, 57, 181–182, 232, 316 and diya 310 as inviolable/protected non-Muslims 306, 308, 311 Muslims killing 319–320, 327 property of 241

453 and qadhf 221 theft by 245 as victims of ḥirāba 272 dictatorships/dictatorial regimes 410 discerning/distinguishing (facts) 129, 132– 133. See also sane/sound mind discrimination 65, 86, 99, 131, 373–374 based on gender and religion 114, 379, 400–401, 407 against non-Muslims 65, 99, 131, 378–379 against women 218, 374–375, 383 disobedience 364 district courts 117–118 shartaya 31–32 diversity ethnic 86 of Sudan 6 divine authority (sharīʿa as) 407, 414–415 law 415 divorce 133, 147n229, 211–212 diya (blood money/compensation) 110, 128– 131, 135–137, 173, 178, 271, 288, 310–311, 313, 319–321, 324, 326, 331, 333, 336, 343. See also blood money/price amount of 175–176, 311 applicability of, and qiṣāṣ 168, 310, 316– 317, 347 in case of insanity 353 for civil servants 172 as claim of men 315 compulsory 346 Criminal Act (1991) on 171, 175–176 financial 305, 311, 315, 335 fiqh on 171, 173, 176, 314 for homicide 172, 176, 394 accidental 348, 356 lapsing of 172, 346 liability for 314–315, 331 nature of 172, 362, 369n19 payment of 172, 176–177, 340, 353, 401 Penal Code (1983) on 171, 175, 319, 331, 356 as punishment 358, 362, 369n19 right of 336n146, 338, 354, 358 settlements of 173–174 and solidarity group (ʿāqila) 311 tariff list of/for body parts 167, 317 to treasury 313

454 types of 320 enhanced (mughallaẓa) 171, 313, 320, 353 full (kāmila) 166–167, 171, 310, 317, 339, 358, 369 partial/diminished/lesser (nāqiṣa) 133, 166, 171, 332–333, 353, 358, 369 for victims and heirs of 314, 362, 389– 390, 395 for wounds/bodily harm 176, 358 documents, supporting/as proof 129, 136 double jeopardy 110 drug(s) 231 causing pain/disease 358 hashish 34 narcotics/opiates 231 trafficking 372 drunkard(s)/drunk (person) 148 and apostasy 297 testimony(ies) of 132–133 as witnesses 362 drunkenness 140, 148, 152–154, 232–233, 235 due process 107 duress 129, 139, 151, 192, 232, 239, 344–346, 352n194 and conversion/apostasy 297 as defense 157 as element of definition of rape 206 ebriety 50 eclectic expedient (takhayyur) 81, 112, 235, 397 principle of 143 eclecticism 84 economy/economic 45, 47–48, 53–54, 61, 66–67 activities, of Muslim Brotherhood 68 aid, international 47 bread basket strategy 47 policies 408 of the South 49 education moral, religious 377 and training in fiqh 77, 81 Egyptian Civil Code (1949) 42 law/codes 33, 37, 103–104, 415

index of subjects and terms Egyptianization 39, 42, 103 elections 46, 73, 92 democratic 410 elite political 75 ruling 35 embezzlement (khiyāna) 242, 247 emergency courts/of instantaneous justice 24, 57, 61–64, 68, 398 law 106, 384 state of 60–61, 76, 92, 384 Emergency and Protection of Public Safety Act (1997) 107 endowments (awqāf ) 14, 36–37 and places of worship, property of 259– 260 theft of 264 enforcement 9, 26 of Islamic (criminal) law 99, 106 in parallel system 395–396, 399 English heritage 8 law 39, 43–44, 107, 158, 161, 355, 406, 415 entertainment cinema 86 dancing, as crime 34, 86 music/musical instruments 34, 87, 240 equality/equal rights 10, 57, 107, 113–114, 373 of citizens 95, 400, 416 of men and women 58, 99, 100, 374 of religions 58, 378 equity, Islamic notions of 71 equivalence 175, 308, 315–316, 336, 363 between free (people) and slaves 316 of injuries/bone fractures 168, 316, 333, 361, 390 kafāʾa 10, 161, 175, 305, 309, 327–329, 341, 363, 400 between killer/perpetrator and victim 305, 316, 329, 363 lack of 309, 343 between men and women 316, 328, 363 mumāthala; tamāthul 168, 305, 335 between Muslims and non-Muslims 328, 341, 401 espionage 371–372

455

index of subjects and terms ethnicity/ethnic 373 groups, diversity of 85–86 structure, of Sudanese society 267 evidence 23, 27, 120, 140, 252, 334, 349, 413. See also proof circumstantial 129, 136, 139, 144–145, 147, 184, 205–207, 215, 237, 243 conclusive 136, 184 in fiqh/fuqahāʾ 127, 135, 202, 242–243, 362, 401 indirect 262 Islamic law of 130–131 lack of 134, 146, 199–200, 202–203, 205, 207–208, 212–213, 217, 375 obtained by unlawful means 136 rules of 138, 146, 191 substitute (badīl li-l-dalīl) 135 Evidence Act (1983) 9, 52–53, 129–132, 136, 142, 144, 146, 202, 208, 217, 237, 400 on ḥirāba 291–292 on legal uncertainties 162 on oaths 362 Evidence Act (1993) 9, 162 on ḥirāba 291 on legal uncertainties 3, 135–137, 141–142, 143n210, 146, 193, 202–203, 208, 217, 237, 400 on oaths 362 execution 14, 30–31, 62, 66, 168, 195, 206, 309, 315, 370, 385, 387, 389, 391, 401. See also death penalty; stoning for apostasy/apostates 390, 394 and crucifixion 275–276, 289, 369, 387n49 of groups 169 by ḥadd 398, 401 by hanging 200, 204, 389 (See also hanging) methods of 271, 339–340 numbers worldwide 389 and participation of heirs 319, 361 and qiṣāṣ 122, 336, 389 and taʿzīr 365, 371, 399 exile (nafy). See banishment/exile expatriation (taghrīb) 167, 170 expedience 112. See also eclectic expedient (takhayyur) experts/expertise 129, 136, 148, 334 in Islamic law 81

expulsions 31 extortion 85, 255 defined as robbery 274 eyewitnesses. See witnesses Faisal Islamic Bank 45 falsehood, injurious (in Penal Code of 1974) 226 family 14, 374 law 1, 4, 21, 36–37, 79n219, 99, 103–104, 112, 195 role of women in 100 famine, and theft 253, 268 fasting 364 fathers, and sons (and murder) 319, 342, 345 fatwa 166 felonies 366 female circumcision/genital mutilation 333, 359n217, 380 fetuses 175, 305 fight(ing) sudden, and homicide 322, 325, 347, 349–350 Supreme Court on 350–351 unintentional 348 fines 30–31, 53, 85, 89–90, 164, 167, 188, 191, 226, 319, 369 for alcohol-related offenses 234, 236–237 in Criminal Act (1991) 167 fiqh/fuqahāʾ (Muslim jurists) 5, 17, 23, 27, 35, 51–52, 57–58, 79, 82–83, 106– 107, 127, 129–130, 134–135, 137–139, 177n353, 216, 222, 253–254, 265n97, 273, 276, 281, 292, 294, 307, 331, 334– 335, 347, 349, 359, 371, 394, 398, 401, 413–414 on alcohol/intoxicants 140, 232, 233 on apostasy 297 -based codification 5, 7, 142 books of 57, 149, 415 classical/traditional 5, 8, 82–84, 208– 209, 266 on coercion 157–158, 345 and compatibility with Criminal Act (1991) 147, 154–155, 168, 259, 338, 342, 345, 353, 355, 361, 393, 405, 414–415 concepts/elements of 106, 257, 322, 396– 397, 400n8 on confessions 141 (See also confessions)

456 and contradictions with 53, 63, 65, 173, 200n83, 267–268, 277, 279, 281, 287, 291–292, 294–295, 324, 361, 370, 405, 414 controversies/disputes in 149n236, 160, 163, 170, 179, 182–183, 242, 266, 275, 347, 366 in Criminal Procedure Act (1983) 111 on diya 171, 173, 176, 314, 353 education/training in 77, 81 and elements/definitions of crimes 151, 160, 247, 258, 273, 278 on equivalence (kafāʾa) 175 on evidence/proof 127, 135, 202, 242–243, 362, 401 on ḥadd (crimes) 53, 140, 163, 188, 227, 256 on ḥirāba 270–271, 273–274, 277, 282, 289, 294 on homicide 173, 312, 315, 322–323, 325, 342, 349, 350, 354, 362 incompatibilities/inconsistencies with 5, 267, 304, 327, 337, 355–356, 405, 414 independence of 413 on insanity 352, 355 on intentions 318–319 on inviolability 161, 312 and joint/multiple perpetrators 165 and legal uncertainties 53, 162, 208–209, 264, 271 and legislation 404–405 and limitation 124, 127 on liwāṭ 182–184, 189, 195 majority, vs. minority opinion in 127, 142–143, 146, 152–153 mujtahid 57, 83 on necessity 159–161, 253 and non-Muslims 228 and Penal Code (1983) 12, 52, 229, 353, 356, 367, 404–405 on property 264, 366 on puberty 155 and punishments 166–168, 289, 319, 354, 361, 365, 369, 395–396, 401, 416 death penalty 111, 321, 324–325 on qadhf 221–223, 227, 229 on qiṣāṣ 319, 327, 340, 342–343, 363 and repentance 163 and role of oaths 362

index of subjects and terms on self-defense 156, 323 and semi-intentional bodily harm 332 on sexual intercourse with minors 187– 188 and sharīʿa 57, 413 on solidarity group (ʿāqila) 176, 177n352 spirit of 266, 268 on suicide 346 and Supreme Court 132–133 on taʿzīr 287, 364–365, 367, 369, 372 on theft/robbery 239n4, 240, 242–243, 246–247, 255–257, 259, 262, 266, 281 on underage heirs 336 uṣūl al-fiqh 5, 81, 181 on weapons 322 and witnesses/testimonies 53, 142–143, 334 and zinā 146, 180, 182, 195 flogging 19, 30, 33, 53, 56, 62, 69, 83, 85, 89– 90, 105, 109, 117, 122, 154n259, 164, 167, 183–184, 188, 192, 213, 369–370, 380–383, 385–387, 391, 400 administered by Public Order Police/Public Order Courts 387, 399, 416 for alcohol-related offenses 234, 236–237 applicability of 393 in Criminal Act (1991) 167, 169, 372 for defamation 226 delayed, not immediate 399 imposition of/methods and provisions 123, 399 for incest 191 of minors/children 173, 379 number of lashes 365, 370 in public 111, 122 of Southerners in North 392 food speculation 68 subsidies 69 theft of/stealing 161, 253 forbidden (ḥarām) 240, 346 acts 159–160, 367 buying, selling, giving alcohol 231, 234 intercourse (waṭʾ) 220–221 sexual intercourse 225–226 force 214. See also compulsion; duress physical and psychological 192–193, 215 in robbery/theft 242, 250, 256, 259, 270– 271, 278–279

457

index of subjects and terms and sexual intercourse/zinā 196, 199– 200, 214, 218 foreigners (from dār al-ḥarb) 329. See also ḥarbī foreign investments 47 forensic methods 194 forfeiture 89, 170, 369, 396 of premises/property 167, 192 fractures (bone) 358, 361 and equivalence 333, 361, 390 fraud 88, 109, 276 free choice/will (mukhtār; ikhtiyār) 137, 141, 147, 152, 181, 187–189, 297, 351, 352n194, 355 (See also consent) people 181, 316 speech 76 will, and voluntary confessions 141, 217 freedom 57, 113, 311. See also liberties religious 69, 95, 99, 113–114, 373 of thought, conscience, religion 376– 378 fuqarā 30–32 gambling 47, 113 gender/sex 99, 129, 137, 310, 373, 400 and blood price 310 equality 100 equivalence 363 and religion, discrimination based on 114, 400–401, 407 separation/segregation of 87–89, 90 of witnesses 362 Geneva Conventions 375 ghaṣb (usurpation) 247 ghāṣib (usurper, thief) 242 goods (māl) 241. See also property valuable (mutaqawwam) 240, 272, 275 governance 98 Southern claim for self-determination 41, 43 government(s) 91 attitude of, on alcohol 237 coalition 410 militias, vs. rebels 388–389, 392 national unity 73, 75 officials of 61–62, 357 opposition to 371 western 409

governorates 395 governors decrees of 85 -general 33 military (khulafāʾ) 35 guardians/guardianship 137, 380 guilt 204 and proof beyond reasonable doubt 120

110,

ḥadd; ḥudūd (crimes/offenses) 15–16, 27, 46, 66, 79, 99, 111, 116n62, 121–122, 124, 128, 132, 134–135, 137, 144, 149, 153, 188, 208, 214, 220, 236, 239, 266, 280, 356, 364, 366, 378, 380, 382, 394–395, 398, 400–401, 414 for alcohol 233, 235 application of 9, 104–105 as claim of God 148 and confessions 139 convictions 109 delayed, not immediate 399 of ḥirāba 280, 286, 293 killing those guilty of 312 lapsing of/remitting 209, 228, 237, 263, 293 and legal uncertainties 162, 184, 198–199, 208, 211 and non-Muslims 107 proof of 136, 139, 141–142, 205, 218, 279, 294, 391, 396, 400–401, 414 punishments/penalties for 47, 53, 55, 57, 62, 69, 73, 75n208, 79, 83, 109, 115, 125, 141, 150, 188, 202, 280, 365, 370, 393, 396 for accomplices 293 for alcohol/intoxicants 127, 232, 234, 237 for apostasy 126 application of 277, 364, 383, 402 averted/lapsed/remitted 145, 162–165, 181, 193–194, 198, 200–204, 208, 215– 216, 218, 238, 243–244, 250–252, 255, 258, 265, 269, 284, 288, 396, 398, 403, 407 death penalty 114, 168, 379 flogging 169 for heinous murder 326 for ḥirāba 274, 278, 288 for liwāṭ 182–184

458 for non-ḥadd crime 277, 283, 287, 387, 393 for qadhf 147, 149, 210, 221–222, 224 for rape 184 for sexual crimes 192 in South 100 for theft 164, 243–244, 254, 267–268 for zinā 146n222, 147, 181–182, 191, 218, 403, 407 and taʿzīr crimes 287, 295, 367 and testimonies 142, 238 theft 131, 144–145, 239, 242, 248, 252, 256n64, 258, 262, 269 definition/elements of 245–246, 262– 263 joint, with accomplices 255, 260 and repentance 164 ḥadīth 162, 170, 406 on apostasy 296 on ḥadd 162, 250 on intoxicants 233n10 on lashes in flogging 365 on legal uncertainties 255 on meaning of sariqa 239 on theft 245 on zinā 180 hanging 1, 34, 65, 166, 169, 200, 204, 291, 319, 339–340, 361, 370–372, 386n42, 387n49, 388n50, 389–390 hangman 309 ḥarbī (non-Muslim foreigner without protection) 57, 306, 327n116 killing of 312–313 property of 241, 298 theft by 245 harm 332, 357–358. See also bodily harm; wounds/wounding (someone) grievous (imminent) 150, 155, 157–158, 288, 324, 344 and necessity 159–161 and self-defense 155–156 health 122, 376 heresy 66. See also apostasy/apostates; blasphemy heterodoxy 38 hijāb (Islamic dress) 391–392 ḥirāba (highway robbery; banditry) 140, 150, 274, 276, 280, 286–287, 312, 387–388, 393. See also banditry; robbery

index of subjects and terms Criminal Act (1991) on 287–290 definition of 270, 278, 287, 290, 293 elements of 278, 281–282, 286, 288, 290, 294 Evidence Act (1983) on 291–292 fiqh/ fuqahāʾ on 270–271, 273–274, 277, 282, 294 forms of (aggravated, simple) 271, 273– 274, 276, 326 as holdup on a public road 19, 27, 55, 168, 270, 273–275, 279 and nahb (robbery) 286, 294 in Penal Code (1974 and 1983) 273–274, 293 proof of 272, 278, 285 punishments for 270–271, 273–274, 278, 284, 288, 290, 294, 387, 388n51 Qurʾān on 270–271 Supreme Court on 289 victims of 272, 291–292 ḥirz (safe [place]) 145, 240, 246, 260, 262. See also safe place bi-l-ḥāfiẓ (surveillance of a guardian) 241–242, 259 defined 247, 259–261, 266–267 entering 245, 257, 263–264 and legal uncertainties 245 al-makān (constituted by a place) 241, 259–261 al-mithl (where something is normally kept) 260 stealing/theft from 249n44, 262 violation of 252, 266 ḥizb (political party) 96 homicide (qatl) 19, 23, 27, 30–32, 34, 110, 116n59, 125, 130–131, 135, 148, 156–157, 162, 178, 291, 293, 312, 318–320, 345, 347, 356, 360–361, 395. See also murder accidental (khaṭāʾ) 169, 171, 176–177, 314– 315, 318, 330–331, 348, 356 with consent/at request of victim 169, 306, 322, 325, 346–347 culpable 159n279, 317, 320, 324, 344, 350 as semi-intentional 345, 347, 354n199 diya for 172, 176, 348, 356, 394 fiqh/ fuqahāʾ on 173, 312, 315, 322–323, 349, 362 heinous (ghīla) 315, 318, 326–329, 361 heirs of victims of 122, 177

index of subjects and terms during holdup/robbery 271, 275, 287 intentional (ʿamd) 37, 131–132, 161, 165, 169, 171–172, 174, 176–177, 305–306, 308, 312, 318, 321, 323, 326–327, 338, 340, 348, 354, 360, 366, 388n51, 395, 400–401 justification for/mitigating factors 156, 158–159 liability for 164, 314 and necessity 159–161 proof of 362 prosecution of 337 Qurʾān on 313, 322 semi-accidental (shibh al-khaṭāʾ) 314– 315, 330 semi-intentional (shibh al-ʿamd) 161, 169, 171–172, 174, 176–177, 313, 318–320, 322, 325, 338, 344–345, 348, 350–351, 353– 354, 356 in sudden fight 322, 325, 347, 349 Supreme Court on 27, 304 homosexuality 180, 186n35, 189n49, 223n17, 224n18. See also liwāṭ (buggery) honor, protection of 155–156, 158 house-breaking by night 324 and burglary 276, 290, 324 human rights campaigns 215 covenants/conventions, international 22n50, 373, 382, 409 groups/organizations 380, 385, 386n45 instruments/tools 373–374 norms, international 100–101 record (of Sudan) 416 reports 9, 231, 373, 387, 412 as source of legislation 384 treaties, and contradictions with 83, 375 treaties, international 375–377, 381, 416 violations 10, 27, 315, 383 Human Rights Watch 9, 385n39, 386n45, 388, 390, 392, 412 hunger, and necessity 159, 161. See also famine, and theft husband, rights of 185, 217 identity 73, 94 Muslim/Islamic 4, 415 of the Sudan/Sudanese 53, 101, 108 ideology, of al-Bashīr’s regime 93 ijmāʿ 81, 210, 281, 397

459 ijtihād 7, 82, 109, 112–113, 397, 406, 407 mujtahid, and interpretation of fiqh 57, 83 ikhtilās (snatching) something 247 illicit acts 162. See also forbidden immoral acts 370 immunity 330 iḥṣān 149, 182, 224–225 notion/concept of 215–216 status of 201, 212–213, 221 of judges 108 of mustaʾmin (protected non-Muslims) 327–329 permanent vs. temporary 327–328 imprisonment 89–90, 150, 164, 166, 188, 192, 365–366, 369. See also prison terms/sentences for alcohol-related offenses 236–237 in Criminal Act (1991) 167 and discretion of judges 169 with exile (nafy; taghrīb) 166–167 life 123, 150, 319–320, 324, 401 impunity 156, 160, 354, 375 incest 191, 224–225, 229, 371 in Criminal Act (1991) 215 incompatibilities/inconsistencies 318, 332 with fiqh 304, 327, 405, 414 indecency/indecent acts 203, 205–207, 215– 216, 370, 382 fiʿl fāḥish 180n3, 188, 195 independence and autonomy of the South 40, 48–49, 64, 74, 94, 100–101, 105 of fuqahāʾ 413 of judiciary 15, 25, 57 of the Sudan 38–39, 103 infrastructure 47 inheritance and apostates 298 and disinherited 313–314 law 99, 104 of perpetrators and victims 310, 341 of qiṣāṣ (retribution) 340, 342n160 injury 159, 293, 326. See also bodily harm; wounds grievousness of 170 innocence presumption of 110, 112, 120, 218 women, and difficult proving 179

460 insane (people) 153, 155, 173, 232, 314–315, 331, 351, 359 insanity 151, 326, 352, 354–355 degrees/types of (permanent vs. temporary, etc.) 154, 351–354 legal consequences of 353 Institute of Training and Law Reform (Maʿhad al-Tadrīb wa-l-Iṣlāḥ al-Qānūnī) 12 intellectuals 91 intent/intention 159, 256, 259, 305, 314–315, 317–319. See also bodily harm; homicide criminal 159, 164, 168, 232, 239, 252, 262, 270, 330, 342, 360 evil/ill (sūʾ qaṣd) 246n31, 259 to kill 307, 322–323, 348 of wounding (someone) 150, 169, 332 interest(s) charging of 46–47, 67 (See also ribā (usury)) of community 365 public 112–113, 267, 365 of society 250 of state 335, 339 Interim Constitution for Southern Sudan 97 Interim National Constitution (2005) 95– 98, 100–101, 104–105, 114, 151, 378, 384 International Convention on the Elimination of All Forms of Racial Discrimination (icerd) 10, 374, 376 International Covenant on Civil and Political Rights (iccpr) 10, 373, 376, 378, 381–382, 384 International Covenant on Economic, Social and Cultural Rights (icescr) 374, 376– 377, 381, 383 International Islamic Conference 68 interpretation(s) 277, 406 of fuqahāʾ 222 of judges 280, 323n94, 344 of Qurʾān and Sunna 113 of sharīʿa 37, 116 of Supreme Court 9, 131, 277, 403, 405 interviews 10, 21, 24–25, 385n39 intoxicants/intoxication 99, 152, 154, 233n13. See also alcohol and apostasy 297 in Criminal Act (1991) 233–234 forbidden in Qurʾān 231

index of subjects and terms ḥadīth on 233n10 punishment for 127, 232, 234, 237 investigations 16–18, 119, 121 inviolability (ʿiṣma) 10, 160–161, 312n43, 322, 324, 328, 363, 401 of life, property, freedom 311, 330 loss of 306, 311–312 inviolable (maʿṣūm) 159, 240–241, 272, 275, 306, 329–330 dead 160–161 dhimmīs as 306, 308, 311 killing of 305, 313 Islam 57, 297 as religion of Sudan 40–41, 43, 97 renunciation of 125–126, 297, 300 (See also apostasy/apostates) as source of legitimacy 30 Islamic constitutions 39, 41, 50, 72, 105 dress code 391–392 institutions, orthodox 30 movements 54, 412 path (of Numayrī) 44–45 principles 45, 67, 83 state/republic 77, 92, 97, 102, 149 Islamic Constitution Front 102 Islamic (criminal) law 1, 3–4, 19, 26, 31, 52, 56, 71, 73, 79, 94, 104n340, 105, 107, 195, 210, 335, 396, 413, 415 application of 10–11, 14, 16, 36, 149, 383, 385, 386, 390, 395, 397, 404, 407, 411, 412 codification (in Sudan) 26, 149, 179, 394, 414 enforcement of 99 and equivalence 175 experts in 81 fault vs. causation 331 features of 363 i.e., sharīʿa 409 and international human rights treaties 416 in limbo (1985–1989) 408 limited application of 391–392, 397 modern 80, 83 under Numayrī 402 principles in 148–149 problems of 83 and procedural law 401 punishments 400

461

index of subjects and terms as source of legislation 43 sources of 106 and Sudanese constitutions 394 Islamic Revival Committee 45 Islamic Trend Movement 47 Islamist(s) 4, 6, 63, 99 and constitution of 1998 114 experiment 91, 93–94 legislation/statutes 77, 93, 115–116 movements 4, 91 project/regime 93–94 terrorism 94 Islamization 2, 26, 40, 45, 50–51, 56, 63–64, 99n320, 100, 102–104, 257, 395–396, 408, 413 defined 6 of legal system 4, 26, 48, 50–51, 64–65, 111–112, 231, 414–415 of Penal Code (1983) 203, 207 policy 56, 66, 99 process/measures 19, 52, 361 program 77, 93, 410 resistance to 70 of South 70 of Sudanese society 78 ʿiṣma. See inviolability istiḥṣān 81, 397 jāhiliya 34 jihād 34 against the South 77, 94, 100 jizya (head tax for non-Muslims) 72 Judaism/Jews 182, 212 and alcohol consumption 232 judge(s) (qāḍī/qūḍāt) 13–14, 29–32, 35, 67, 81, 108, 119, 320n80. See also Supreme Court and apostasy 297 assistant (musāʿid qaḍāʾī) 118 chief/grand 30, 36, 116 Christian 15n30 and consistency with sharīʿa 281 councils of (majālis al-quḍāt) 117 discretion/latitude of 169, 226–227, 235, 258n67, 326–328, 332, 361, 365, 367–369 as interpreters of Islamized legislation 280 knowledge of (ʿilm al-) 127, 130, 136, 139, 148, 262n80

notification of 250–251 provincial 32 and punishments 271, 321, 361, 364–365, 368, 390 quality of 62 role of 305 secular 413 Southern 78 special circuit of five 401–402 strikes of 54, 61 women 78 judgment (someone) incapable of 351 loss of clear ( fāqid al-tamyīz) 176 weakness of (daʿf al-tamyīz) 355 judgments 121–123, 178. See also Supreme Court leniency of 253–254 of lower courts 17 not contradicting Qurʾān 283 Judiciary Act (1986) 117 judiciary/judicial 16, 19, 23, 32, 61, 77, 81, 103, 118, 146n225, 193 circulars (of Mahdī) 35 independence of 15, 25, 57 institutions 112 knowledge (ʿilm qaḍāʾī) 253 precedents 17, 112 purges of 14, 18, 25, 50 and September laws (of Numayrī) 60–61 system 50, 204 traditional 63, 77 jurisdiction 25, 31, 85, 123, 406 civil 350 Islamic/sharīʿa 31, 38 and parallel system of legislation, enforcement 395–396, 399 jurisprudence, Islamic 143, 237, 318, 320, 326. See also fiqh/fuqahāʾ; sharīʿa jurists 25. See also fiqh/fuqahāʾ justice 124, 131, 135–136, 151 chief, and deputies 15, 61, 110, 116, 118, 402 system, for children 380 Just Peace Forum (jpf) 102 juveniles 154n259. See also children; minors khamr, defined 233. See also alcohol; intoxicants/intoxication Khartoum Public Order Act (1996) 84

462 Khatmiyya 41, 45, 58 kidnapping. See abduction/kidnapping killing 315n56. See also homicide; murder accidental 357 of dhimmīs 319–320, 327 extra-judicial 412 and intention 307, 322–323, 348 of (someone) inviolable (maʿṣūm) 305, 313 mass 382 of muhdar 161 of mustaʾmin 312, 327 of non-Muslims 341–343 between relatives 319, 342 those guilty of zinā, apostasy, ḥirāba 312–313 in way offender caused death 339, 361 while in state of mental abnormality 322, 326 kinship 272. See also relatives knowledge, common (ʿilm ʿāmm) 253 labor/trade unions 56, 69–70, 75. See also trade lashes. See flogging law ignorance of 162–163 Law Reform Commission 41 law(s)/legislation 9, 11, 18, 23, 25, 103, 104n340, 112, 136, 281, 295, 300, 415. See also case law; common law; customary law on banking 46, 104 civil 21, 103, 298 and codification of Islamic criminal 26, 149, 179, 394, 414 constitutional 70 continental (French) European 42 contradictions in 268, 394 contrary to international human rights treaties 373 criminal 10, 26, 104, 372n40, 406–407 emergency 106, 384 English 39, 43–44, 107, 158, 161, 355, 406, 415 family 1, 4, 21, 36–37, 79n219, 99, 103–104, 112, 195 and fiqh 281, 404–405 inheritance 99, 104

index of subjects and terms international 416 Islamic (See sharīʿa) of Islamist(s) 77, 93, 115–116 Islamized 373, 408, 412, 415 local 85 not in harmony with sharīʿa 377 Ottoman-Egyptian 102 positive 15, 80, 281 pre-Islamization vs. Islamic 277 private vs. public 108 procedural 107, 362, 401, 405 royal/sultanic 102 schools of (Sunnī) 10, 22n50, 30, 34, 78, 82, 112, 116, 126, 142, 148, 210, 212, 252, 289, 325, 396–397, 406–407, 413 (See also fiqh) on corporal punishments 381 on flogging 365 on homicide 322 orthodox 7, 109, 397 on puberty for girls 155 on punishment of zinā 181 on qiṣāṣ 310, 335 used by courts/Supreme Court 343, 398 sources of 43, 47, 64, 67, 83, 97–98, 100, 104, 111, 114, 384 lawsuits (khuṣūma) 249 lawyers/advocates 110, 120 law professors 118–119 Lawyers Committee for Human Rights 78 legal age 137, 152, 334, 382 assistance, absence of 387, 399 bond, without 186, 190, 195, 211, 215 capacity 132, 152, 174, 351 circulars (manshūrāt) 34, 37, 116, 162 (See also criminal(s), circulars) eclecticism 415 heritage 8 justification 325 methodologies 80, 83 opinions 414 proceedings 248, 249n45, 267 protection (ʿiṣma) 308 (See also inviolability) reasoning 18, 20 reforms 50, 103n334 rights 106, 225, 238

index of subjects and terms status 149, 171, 310 syncretism 105 system/penal code, secular 304, 317, 413, 415 tricks (ḥīla) 146n222 valid(ity) (ṣaḥīḥ) 174 legality principle 115 legal uncertainties (shubha, pl. shubuhāt) 53, 57, 109, 124–125, 129, 137, 141, 145– 147, 151, 162, 181, 184, 199, 202–203, 210, 216, 218, 220, 244, 255, 257, 264, 266, 279, 283–284, 294, 306, 309, 346, 364, 368, 386, 396 and fiqh (See fiqh/fuqahāʾ, and legal uncertainties) and ḥirāba 288 on ḥirz 245 of immunity (al-ʿiṣma) 327 inconsistencies as 198 rape as cause of (See rape) with regard to contract (al-ʿaqd) 181, 209, 211 with regard to legal sources ( fī l-dalīl) 181, 209 with regard to property/ownership (almilk) 181, 184, 211, 241, 250, 268 with regard to the act ( fī l-fiʿl) 181, 209 legitimacy 7, 30, 81, 409, 416 democratic 11, 100 Islam/Islamic 6, 30 of Mālikīs and Ḥanafīs (in Sudan) 413 political 408, 415 religious 413, 415 lethal acts 360 arms/weapons 307 vs. non-lethal 307, 313 liability for blood money (diya) 314–315, 331 for bodily harm/homicide 164, 314 civil 173 collective 31, 151, 289 criminal 256, 324 financial 153, 156, 314, 324, 331, 353, 355 of government officials 357 joint 278–279, 280n30 of Muslims, for qiṣāṣ 319–320 of solidarity group (ʿāqila) 311 for theft 164

463 liʿān mulāʿana procedure 146–147, 162, 206, 209–211, 221 between spouses 146, 228–229 libel 31, 364. See also slander liberties 109. See also freedom licit acts 162 life inviolability of 311, 330 public 90, 100, 276 (prison) sentence 37, 120, 123, 150, 319–320, 324, 401 (See also banishment/exile) limitation(s) 127, 238 statute of 127 taqādum 124–126, 140 lineage 195 negation of 224, 226 liquor. See intoxicants/intoxication livelihood; survival 253–254 liwāṭ (buggery) 179, 180n6, 186, 187n42, 194, 196, 212–213, 215, 225, 229, 366, 371, 386 accusation of 224, 226 under category of zinā 195, 215, 224, 229 defined 182, 189, 197, 214, 224 in marriage 183–184, 189, 191, 215 and non-Muslims 226 and punishment of 182–184, 193, 214 in Qurʾān 195 and rape 190–192 by way of 189, 197, 214–215 magic 88 and healers 85 mahdī, second coming of 51 Mahdism/Mahdiyya 36, 38, 103 mala fide 172 marginalized groups 85 marissa (traditional drink brewed from dates and sorghum) 90, 132, 391 marriage 100, 105n342, 180–181, 203, 211, 217 and apostasy 298–299 defective; void (zawāj fāsid; bāṭil) 209– 210 dissolution of 147, 229, 299n17 and liwāṭ 183–184, 189, 191, 215 validity/invalidity of 162, 201, 209, 212– 213, 225 martyrs (shuhadāʾ) 99

464 maṣlaḥa (public interest) 113 master, and slave 345 Mecelle 104 media interest/attention 1, 15–16, 91 men/male(s) 191, 197, 272, 297, 375 and equality with women 58, 99, 100, 154, 171, 374 and equivalence with women 316, 328, 363 of good reputation (rijāl ʿudūl) 140, 145– 146, 334 rights/claims of (ḥaqq adamī) 124–125, 132, 135, 139–140, 148, 163–164, 222, 305, 315, 364–365, 368 vs. women, re. blood money 175, 363, 400 mens rea (guilty mind) 151 mental faculties (ʿāqil) 297, 317 (See also sane/sound mind) idiocy/idiot (maʿtūh) 352n194 infirmity/illness/abnormality 154, 297, 351, 353–354 (See also insanity) killing while in state of 322, 326 and theft 264 retardation 326, 354 merchant class 30 mercy, plea for 210–211 methodology(ies) 26, 60, 79–81, 397, 407, 414 Islamic and western legal 83 military assuming power 69 coups d’état 11, 410 court 119 dictatorship 40 governors (khulafāʾ) 35 officers 70, 75 military-Islamist regime 4, 91, 94, 408–409 of al-Bashīr 11, 412 minimum value (niṣāb) 145, 239–240, 246, 262–263, 272, 279, 285. See also niṣāb minority 151 non-Muslim 378 opinions (of jurists) 112, 127, 142–143, 146, 152, 164, 186, 244, 260, 265, 267–268, 279, 298, 334–335, 343, 346, 348, 350, 360, 400, 414 religious 377

index of subjects and terms minors 153, 169, 173–174, 176, 189–190, 206, 214, 232, 254, 314–315, 331. See also children; underage (children) and apostasy 297 and consent 186, 188n46, 190, 197, 214 with free will 188 punishments of 173, 370 amputations 379–380 detentions in reformatory 167, 173, 254–255, 369, 379 flogging 173, 379 rape of 188, 191, 196, 206, 214 sexual intercourse with 185, 187–189, 205, 213 and theft 254–255, 264 mischief, by fire 324 mitigating circumstances 174, 368 factors 152, 156, 158–159, 161, 164, 170, 326, 344–347, 349–351, 354 modern(ist) 46, 80, 414 criminal jurisprudence 109, 397, 406 definitions of citizenship 401 requirements 17, 57, 83, 177 Mohammedan Law Courts 37 Mohammedan Law Courts Ordinance (1902) 36–37 morality 84n246, 94, 376, 396 public 88, 90, 370, 391 mosques 38, 260 motives 170, 322. See also intent/intention mourning 86 movable/movability 240, 262 property 247, 259 muftīs 32–33 Muhammadan Law Courts Organization and Procedure Regulation (1915) 36, 116 muhdar (someone without inviolability) 160–161 muḥṣan/muḥṣana 150, 183, 199–203, 211, 214, 385 vs. bikr (virgin) 212n110, 213 bi-l-zawāj (by marriage) 213 definition of 181, 211–212, 386, 403 execution of 206, 210 liwāṭ (buggery) of 366 and non-muḥṣan/muḥṣana 183, 206, 212n110, 213–214, 216 and qadhf 221, 227

465

index of subjects and terms status of 181, 200n82, 202 zinā of 166, 199, 202 murder 169, 288, 319–320. See also homicide; killing abetment to 360 death penalty for 344–345 by enticement, persuasion, and deceit 326–327 heinous (qatl ghīla) 315, 318, 326–327, 361 intentional homicide 344–345 Penal Code (1974) on 318–320, 324, 344 Muslim Brotherhood 4, 39–40, 43–48, 50– 51, 59, 61, 70, 76, 102 backing Numayrī 55–56, 410–411 and banking/economic activities 68 and emergency courts 63 influence of 54, 68–69 Muslim Personal Law Act (1991) 79, 374n7 Muslim(s) 14, 34, 56, 72–73, 96, 98, 137, 181, 212, 260n75, 264n92, 299, 315, 365 apostasy of 297, 377 and blood prices 175, 363, 400 and equal rights with non-Muslims 58 and equivalence 308, 315–316, 328, 341, 401 and incest 191 and intoxication 232 as inviolable 311 killing dhimmīs, mustaʾmin 319–320, 327 killing non-Muslim(s) 341–343 liability for qiṣāṣ 319–320 vs. non-Muslims 107, 191, 228, 230, 234, 236, 315–316, 341, 343 in North 150, 378 presidency held by 41 property of 241 and qadhf 228, 230 as victims 227–228, 230, 272, 306, 310 waging war against 83 without solidarity group (ʿāqila) 311 and zinā 212 Muslim World League 45, 60, 66 mustaʾmin (protected non-Muslims) 182, 245, 271, 306, 308, 316, 363 crimes against 293 and intoxication 232 killing of 312, 327

nature of immunity of 327–329 and qadhf 221 muṭīq (woman or a girl capable of sexual intercourse) 186n38, 206n94 nahb (robbery) 242, 247, 274–275, 280–281, 285–287, 290, 294–295. See also ḥirāba; robbery; theft Nasserites 39, 41, 44–45 national sharīʿa 5, 407 unity government 73, 75 version of fiqh-derived Islamic criminal law 413 National Assembly 92 National Congress of the Sudan Socialist Union 49 National Congress Party 24, 101–102, 411 National Democratic Alliance 75n208, 96 National Front 45–46 National Gathering for the Salvation of the Homeland (ngsh) 70 National Islamic Front 3, 11, 25n59, 70, 72– 74, 76–77, 92–93, 301, 410 nationality 95, 373 nationalizations 47 National Qadirate 30 National Reconciliation (1977) 54 National Salvation Alliance 74 National Security Law 106 National Security Service 106 necessity 155, 160–161, 251–253, 268, 351n188 cases of 141–142 Criminal Act (1991) on 158, 161 ḍarūra 81, 142, 158–159, 232, 251, 263, 334, 397 as defense 156–158 and fear of death 158, 160 fiqh/fuqahāʾ on 159–161, 253 negligence 314, 356 death/killing by 315n56, 330 niṣāb 208–209, 240n6, 247, 254, 259–262, 264–267, 275 non-ḥadd crimes/offenses 79, 268, 277, 286, 295, 396 and death sentences 122 proof of 285–286 theft 246–248, 251, 261, 263

466 non-Muslims 10, 14, 40, 57, 70, 73, 98–99, 107, 149, 151, 191, 226, 264n92, 306, 378, 400 and apostasy 150 and application of sharīʿa/incorporation into Islamic law 100–101, 114, 224, 228, 230 and blood prices 175, 363, 400 discrimination against 65, 131, 378–379 and insults to Islam/symbols 302–303 killing of 341–343 and Muslims, equivalence between 328, 341, 401 vs. Muslims 58, 107, 191, 228, 230, 234, 236, 315–316, 341, 343 of non-Arab Southern tribes 373 in North 98, 105, 151, 378, 395 as protected 306, 308, 311–312, 329, 401 and qadhf 222, 226 rights of 49, 95, 98, 101, 151 in South 105, 150 status of 72, 97, 230 testimonies of 146–147 as victims 316, 329 as witnesses 137n183, 237, 267 and zinā 182, 212 normativity, Islamic 6 North and conflict with South 100 flogging in 392 ḥirāba in 150 majority Muslim 378 non-Muslims in 98, 105, 151, 378, 395 Southerners in 56, 98, 105, 114, 392 notables 32. See also elite oaths 128–129, 133–134, 136, 138, 147, 222 of allegiance (bayʿa) 64 decisive (al-yamīn al-ḥāsima) 130, 138 legally capable of swearing 334 in liʿān procedure 147, 209 returning 134–135 and role in fiqh 362 observations (muʿāyina) 129, 136 offenders 169, 170, 227, 272, 359. See also perpetrators/culprits and diya 176, 353 officials, government 61–62 and liability of 357

index of subjects and terms offspring 169, 359. See also descendants; relatives and accusations of zinā 229 oil revenues 47, 49 opposition 57, 78 to government 371 parties 96 orthodox fiqh 414 Islamic institutions 30 Islam/sharīʿa 7, 45 schools (madhāhib) 7, 109, 397 Ottoman civil code (1876) 104 penal code 33 Ottoman-Egyptian law 102 rule (1820–1881) 32, 37 owners rightful (mālik al-māl) 249n45 of stolen property 145, 248–249 ownership 247 ownerless (mubāḥ) 240–241 right of 239 and suspicion of (shubhat al-milk) 211 pan-Arabism 41, 43 parallel system of legislation, enforcement, jurisdiction 395–396, 399 of Public Order Police/Public Order Courts 400, 416 pardons 126, 169–170, 178, 229, 310, 315, 321n85, 329, 333, 335–338, 340–341, 362, 394, 398 in advance 346 by president of Sudan 394n1, 398 right to 327, 359, 368 of theft 244, 250–251 by victims/heirs of victim 163, 228, 250, 271, 291, 308, 310, 315, 319, 326, 368, 389– 390 parliament 64–65, 73 paternity 147 peace agreement/treaty 42, 71, 74–75, 77 in Addis Ababa (1972) 42, 48–49, 76 public 276 social 19

index of subjects and terms

467

Penal and Commercial Codes (1972) 42 on diya 171, 175, 319, 331, 356 Penal Code (1924) 27, 44, 158, 161, 185–186, English law as source of 355 190, 317, 326, 347, 354, 356–357, 395 and fiqh 12, 52–53, 63, 65, 229, 353, 367, on homicide 319 404–405 on maximum lashes 370 flaws of/gaps in 259, 268, 287, 318, 355, and proportionality of crime and 368, 372, 387, 398 (See also Criminal Act punishment 323 (1991)) Penal Code (1974) 8, 27, 43–44, 53, 80, 157– ḥadd crimes/punishments 268, 286, 367, 158, 161, 164, 185, 190, 317, 326, 347, 351, 370 354, 356–357, 393, 395 on ḥirāba 273–274, 293 on age limits 168 on homicide 320, 323, 330, 360 on anal intercourse 186, 195 implementation of 62–63 on collective responsibility 275 on incest 191 on defamation 223, 226, 228 as Islamized code 158, 210, 294, 304, 318, on definition of joint criminal acts 165 320 on drunkenness/intoxication 152, 154, 233 and judiciary 60–61 on female circumcision 333 on liwāṭ 196 on harm 357 on necessity 159 on ḥirāba 273–274 and Penal Code (1974) 257–258, 367, 393 on homicide/murder 318–320, 324, 344, as precursor of Criminal Act (1991) 406 360 on property offenses 276 on maximum lashes 370 and proportionality (lost) 338 on necessity 159 on puberty (ḥilm) 153–154 as precursor to later codes 406 punishments/penalties of 166–167, 339, and proportionality of crime and 369 punishment 323 death penalty (iʿdām) 319 on punishments/compensations 166– harsh corporal 408 167, 256, 369 on qadhf 223, 226 on rape 190, 207 on rape and zinā 186, 188, 190, 203, 206– on taʿzīr offenses 170 207, 211, 214 on theft 246–247, 256, 276 on self-defense 155 on zinā 187 on suicide 360 Penal Code (1983) 8–11, 16, 27, 52–53, 55–57, taʿzīr crimes/punishments 170, 286, 367, 65, 69, 71, 73, 79, 105, 107–109, 113–114, 370–371 115, 117, 150, 161, 164, 187, 285, 299, 323, on theft and sariqa ḥaddiyya 246, 255– 326, 344, 397, 405, 415 256, 276, 284 abolition/repeal of 72, 77, 410 and al-Turābī 79 on alcohol/drunk (people) 152, 233–234 penal codes/laws/legal system. See also on bodily harm 332, 357 law(s)/legislation and collective responsibility 275 and discrepancies with fiqh 349 and consent (of victim) to death 325 first penal code (1899) 37 contradictions/inconsistencies in ḥudūd in 46 (See also ḥadd) 320n82, 357, 361, 405 Islamized/Islamization of 55–57, 75, 187, criticisms of/campaign against 59, 147, 337 285, 287, 369, 407, 410 on definitions of crimes 165, 273 lacuna/gaps in 112, 143, 154, 179, 188, 214, and discretion of judges 369 216, 276, 320, 330, 332–333, 339, 345, and discrimination against non-Muslims 354, 380, 404 378 secular 72, 74, 304, 317, 413, 415 disfavoring women 217 and sharīʿa 72, 404

468 penalties. See punishments/penalties perpetrators/culprits 149, 191, 278, 305, 316. See also criminal(s); offenders confessions of 184, 281 death of 336 descendants of 308 and diya 176, 311, 353 and equivalence with victims 305, 316, 329, 363 and financial liability 355 multiple/co-perpetrators 165, 256, 275– 276, 308, 316, 320, 360 statements of, as evidence 349 and victims 359 personal status cases/issues 36, 38, 77, 103 courts 78 person(s) 194, 214 accused 85 free 181, 316 protected (maʿṣūm) 240–241 (See also inviolable) protection of (and honor, property) 158 philosophy 81 physical assault 31 (See also bodily harm) maturity 380 (See also puberty) and mental faculty 317 and psychological force 192–193, 215 pickpocketing (nashl) 269 piety 132 pilgrimage (ḥajj) 38, 44 plaintiffs. See victims plurality/pluralism and nature of Sudan 48 political 69 religious 41, 43 police 119, 172, 290, 395 and general crimes 121 misconduct 91 Political Associations Act of 1998 79 politicians 10, 24 politics/political 25, 254, 300, 373, 403, 408, 412 association (al-tawalī l-siyāsī) 96 crimes 328, 368, 371–372, 393 elite 75 groups 277

index of subjects and terms offenses 109 oppression of 52–53 parties 40, 69, 75n208, 96, 101 Popular Arab and Islamic Congress 92, 94 Popular Congress Party 24, 411 Popular Defense Forces 93 post-colonial codes 304, 353 power(s) colonial 413 and military 69 of president 110–111 -sharing [North-South] 100–101 struggles 91, 410 prayer(s) 34, 296, 364 precedents 22n50, 133, 281, 361 common-law system of 16 from English law 406 judicial 17, 112 precolonial Sudan 7, 412 pregnancy 122, 194, 198, 201, 203 from fornication 210, 212 as proof of zinā 193, 199–200, 202–204, 213–215, 217–218, 375, 386 and rape 193, 217, 375 of unmarried women 113, 139–140, 146– 147, 184, 204, 206 pre-Islamization laws, vs. Islamic laws 277 president as leader of the faithful (qāʾid al-muʾminīn) 64 pardon by 394n1, 398 powers of 110–111 role of 64, 118, 291 prevention 173, 400 and deterrence 362 price fixing 85 prisoners of war 312 prison terms/sentences 53, 109, 117, 121, 126, 340. See also imprisonment; punishments/penalties for alcohol consumption 234 for anal intercourse 186–187 corporal punishment in 381 for defamation 226 and diya 172 for incest 191 life 37, 120, 123, 150, 319–320, 324, 401 with banishment 258, 274, 276, 278, 281–282

index of subjects and terms in proportion to gravity of deed/harm 358–359, 368 private claims 333, 337, 365 people, rights of 395 vs. public law 108 vs. public sphere 90 probation 121 procedures/procedural 5, 9, 26–27, 120, 124, 400, 406, 413. See also qasāma procedure codes 10 law 107, 362, 401, 405 liʿān/mulāʿana 146–147, 162, 206, 209–211, 221 professional associations 69–70, 75. See also businesses/professional activities prohibition 159 and banning of alcohol 47, 55, 113–114, 237 of corporal punishment 379 of torture 382–383 proof 9, 129, 136, 289. See also evidence beyond reasonable doubt 110, 120, 208, 219 burden of 127, 138 elements of 267 fiqh on 127, 135, 202, 242–243, 362, 401 of ḥadd crimes/offenses 136, 139, 141– 142, 205, 218, 258, 279, 294, 363, 391, 396, 400–401, 414 of ḥirāba 272, 278, 285 of homicide 362 of non-ḥadd crimes/offenses 285–286 of qadhf 222 of qiṣāṣ crimes/offenses 130–132, 136, 335, 363, 395, 401 of rape 182, 187, 190–191, 194, 203, 205– 207, 214, 216, 374 of shurb al-khamr 148 standards of 128, 133, 287, 400–401 of theft 20, 242–243, 258 unequivocal 208 of zinā 113, 139, 145–147, 179, 184, 191, 206– 208, 215, 374–375 pregnancy as 193, 199–200, 202–204, 213–215, 217–218, 375, 386 propaganda 76

469 Propagation of Virtue and Prevention of Vice Act (1983) 52 property 241, 246, 276, 364, 374. See also ḥirz; stolen goods/property of apostate 298 destruction of 167, 367 of dhimmīs 241 of endowments (awqāf ), places of worship 259–260 in fiqh 264, 366 guarded (māl maḥrūs) 261 of ḥarbī 241, 298 legally recognized (māl) 240–241, 261 milk 181 nature of 241, 247, 259 and niṣāb 261, 288 and premises, forfeiture of 167, 192 as protected/inviolable 157–158, 272, 311, 330, 366 public 155, 241, 259, 260n75, 264 theft of 264, 266, 268 restitution of 249, 293 stealing, by force/violence 270–271, 278 stolen 145, 248–249, 261 prophets 296 sunna of Muḥammad 180, 232 proportionality of crime and punishment in penal codes 323, 393 in Penal Code (1983) 338 in prison terms, re. gravity of deed 358– 359, 368 prosecution attorneys 119 bureau 121 of homicide 337 swift (for alcohol consumption) 238 of theft 244 prosecutors male agnatic group as 309 private 291, 336, 338–340 awliyāʾ al-dam 309, 321 claims of 332 and financial compensation 327 heirs of victims as 329 and pardons 359 rights of 307–308, 312, 321 public 119, 148, 321 proselytization 99n320

470 prostitution 224–225, 229, 370, 375 place of 188, 192, 370 protection/protected. See also inviolability non-Muslims (mustaʾmin, dhimmīs) 182, 245, 271, 306, 308, 311–312, 316, 329, 363, 401 person (maʿṣūm) 240–241 of person, honor, property 158, 272, 366 of society 377 provocation, grave/sudden 317, 322–323, 329, 351 puberty 153–155, 379, 396. See also age public 290 affairs 135 claim 149 definition of 235 drunkenness, vs. private 233 execution of retribution (qiṣāṣ) 111, 122 interest 112–113, 267, 365 life 90, 100, 276 listening (to accusations) 220, 227 morals/morality 88, 90, 370, 391 nuisance 232, 235–237 order 19, 90, 131, 136, 268, 376, 395 crimes/disturbance of 250, 388 property 155, 241, 259, 260n75 theft of 264, 266, 268 prosecution/prosecutor 119, 148, 321 rebuke/announcement of deed 365, 369 rights (ḥaqq ʿāmm) 249 road 273 security 90, 268, 364, 376 servants 109, 155–156, 322, 325 services 54, 99n320 support 61–62 transport 87 treasury 298, 311 Public Order Act (1996, later Security of the Society Law) 79, 383 Public Order Courts 77, 84–85, 238, 387, 392, 396, 399, 416 Public Order Law(s) (1999) 84, 89, 99, 395– 396 application of 90–91 of Kassala 84, 86, 88–90 of Khartoum 86, 88, 90 Public Order Police 19, 85–86, 88, 387, 391, 399, 416 and Criminal Act (1991) 84

index of subjects and terms punishability 152, 231–232 punishments/penalties 5, 9, 14, 31, 34, 109, 117, 123, 161, 249, 365, 369, 395, 399. See also ḥadd; stoning; taʿzīr aggravated/harsh 52–53, 258, 275–276, 296, 326, 354, 357, 363, 385, 416 for anal intercourse (liwāṭ) 182–183, 185– 187 corporal 30, 83, 381 discretionary 170, 334 flogging, fine, prison term [as standard phrase] 53, 236, 256, 273, 332, 357– 358, 360n223, 367–368, 393, 396 and gravity of crime 332, 360 for ḥirāba 270–271, 273–274, 278, 284, 288, 387 for homicide 319, 356 lapsing of/remitted 126, 160, 163–164, 228, 230, 242, 271, 317, 346, 351n188 of minors 173 and necessity 160 non-ḥadd 258 in North vs. South 288, 378 for qadhf 221–222, 228, 230 qiṣāṣ 75n208, 150, 316–317, 363 application of 364 for bodily harm 358–359 in Qurʾān and Sunna 107–108, 116, 282, 289, 364 for rape 182, 190, 192–193, 205 and repentance 164, 271 for robbery (ʿuqūbat al-nahb) 274 and sharīʿa 28, 94, 98, 105, 373, 381, 385, 390, 396, 406, 408–409 and similarity to original wound 316 summary, at judge’s discretion 361 Supreme Court restriction of 285, 402– 403 ʿuqūbāt vs. al-jazāʾāt al-taʿwīḍiyya (compensational penalties) 109 for zinā 157, 180–181, 193, 212, 390 punitive measures 365 purification, from sin 182 qadhf (false accusation of unlawful sexual intercourse) 27, 107, 124–125, 130, 138– 140, 143, 149–150, 220, 223, 392 applicability of 226 conviction for 217, 222

index of subjects and terms Criminal Act (1991) on 223–224, 226–227 Criminal Bill (1988) on 223, 226–227 definition of 220, 223, 227, 229 and descendants 221, 228 fiqh/fuqahāʾ on 221–223, 227, 229 and lapsing of punishment 163, 228, 230 and non-Muslims 222, 226 Penal Code (1983) on 223, 226 proof of 222 and punishments/penalties 147, 210, 221– 222, 224, 228, 230 and religion 224, 230 taqādhuf (mutual unfounded) 228 victims of (maqdhūf ) 221–222, 224, 226– 227 witnesses of 230 Qādiriyya brotherhood 51 qānūn 136 qasāma procedure 128–130, 136, 151, 266n98, 362 qaṭʿ al-ṭarīq (holdup on a public road) 270. See also ḥirāba in Penal Code (1983) 293 Qawānīn al-Sūdān 12 qiṣāṣ (retribution/retaliation) crimes/offenses 15–17, 35, 99, 108, 116, 122, 125, 128, 131– 132, 134, 137–138, 149, 153, 166–167, 169, 238, 271, 291, 305, 307, 310, 319, 321n85, 324, 326, 356, 364, 366, 369–371, 380, 382, 394–395, 400–401 application/execution of (or lack of) 105, 111, 113, 122, 168, 316, 334, 336, 389 for bodily harm/wounds 315, 332–333, 335, 358–359, 361, 385, 390, 394, 407 as claim of men 148, 315 and coercion 345 defined 168, 339 and diya 168, 310, 316–317, 347, 401 grafted onto body of criminal law 414 for homicide 308, 341 inheritance of 340, 342n160 lapsing of/averting/remitting 169, 174, 176–177, 308–310, 317, 319–320, 325, 335– 336, 338, 341, 346, 358–359, 368, 389 multiple 359 and non-Muslims 107 and pardon/waiving of 178, 310 preconditions/provisions of 327, 358, 378 and private prosecutors 321, 338

471 proof of 130–132, 136, 335, 363, 395, 401, 414 and punishments/penalties 75n208, 121, 150, 169, 316, 335, 358–359, 363–364, 396, 399 death penalty/sentence 114, 128–129, 168, 321, 361, 379, 391, 394 right to 293, 339, 341 in South 105 for victim, and heirs 169, 307 way offender/culprit caused death 169, 339, 371 qiyās 81, 281, 397 on meaning of khamr 231 Qurʾān 34–35, 67, 81, 113, 115, 151n241, 170, 181, 283, 400n8, 406 on alcohol/intoxicants 231 on apostasy 296 on banishment 366 contradicting or distorting 301 crime and punishments in/from 107– 108, 116, 255n61, 282, 289, 364 on ḥirāba 270–271 on homicide 313, 322 on liwāṭ 195 on pardons 335 on qadhf 220–221, 226 on qiṣāṣ 343 as source 281–282, 396–397 terminology of 231 on theft and sariqa ḥaddiyya 239, 241, 246 on zinā 179 race 99, 373 Ramadan 89 rape (ightiṣāb) 85, 150, 155–156, 184, 197–198, 200–201, 203–206, 213, 215–216, 224– 225, 229, 288, 324, 371 among adults 190, 206 anal 185, 190, 192n61, 193, 195n68, 215 vs. vaginal 187–188 as cause of legal uncertainty (shubha) 193, 201–203, 216, 218, 386, 403, 407 claim of 199, 201–203, 216 and close association with zinā 206–207, 214 definition of 188–190, 192–193, 197, 206, 213–214

472 and incest 191–192 intra-marital 190, 192–193 mass 192, 382 of minors 188, 191, 196, 206, 214 and pregnancy 193, 217, 375 prohibition against 375 proof of 182, 187, 190–191, 194, 203, 205– 207, 214, 216, 374 punishment for 182, 184, 190, 192–193, 205 statutory 187n44, 188, 190, 214 stigma of 193 victims of 189, 191, 194, 197, 204, 214 and zinā, liwāṭ 179, 182, 186, 188, 190–193, 203, 206–207, 211, 214, 403 rapists 191, 193, 203–204, 207, 214, 218, 375 reason 153 loss of 317 and understanding (idrāk) 351–352, 355 rebellion laws against 57 in the South 49 rebels vs. government militias 388–389, 392 against state (bughāt) 312n43 recidivism 364 recidivists 234, 237, 239, 255, 266–267, 276, 372n41 death penalty for 366 of ḥadd theft 255 reciprocity, principle of 57 reconciliation 169 national 45, 68, 76 of spouses 211 referendum 100–101, 114 reformatory 291, 369 for minors 167, 173, 254–255, 379 reform(s)/reformist 154, 397, 414 approach to sharīʿa 58 of common law system 103 legal 50, 103n334 tanẓīmāt 33 refugee(s) 48, 85–86, 114 around Khartoum 105, 212 camps 231 population 392 rehabilitation 204, 219 vs. revenge 83 relatives 191, 288, 309. See also descendants; kinship; offspring

index of subjects and terms agnatic 311 among victims 293 killing among 319, 342 and offspring of offender 359 theft (sariqa) among 245, 250, 263 religion(s)/religious 43, 82, 95, 129, 137, 149, 151, 343, 365, 373, 376–377, 379, 400 and blood price 310 changing of/conversion 376, 378 education 377 endowments (awqāf ) 14, 37 equality of 378 and equivalence 175, 363 freedom of 69, 95, 99, 113–114, 373 and gender, discrimination 114, 400–401, 407 heavenly 212 laws based on one religion 378 -legal qualifications 283 native 99 (See also animists) in Penal Code (1983) 171 and qadhf 224, 230 ritual duties of 364, 367 of Sudan, Islam as 40–41, 43, 97 remittance 254 of ḥadd punishment/penalty 199, 202, 215, 250, 252, 265, 269, 284, 398, 403 on ḥadd theft 250–251, 254, 263, 268 for ḥirāba 288 and lapsing/averting qiṣāṣ crimes 169, 174, 176–177, 308–310, 317, 319–320, 325, 335–336, 338, 341, 346, 358–359, 368, 389 and lapsing of punishments 126, 160, 163–164, 228, 230, 242, 271, 346, 351n188 repentance 57, 125, 130, 138, 163, 288, 312n42, 366 for apostasy/of apostate 298–301 of culprit 367 and lapsing of ḥadd punishments 164, 271 and theft 163–164, 263 reprimands 154n259, 365, 369 Republican Brothers ( jumhūriyūn) 58–59 against September laws 65 reputation, good (ʿadl; ʿadāla) 89n285, 118, 121, 128, 130–133, 137, 142–143, 147, 214, 242, 297, 362 and drinking 238

index of subjects and terms men of (rijāl ʿudūl) 140, 145–146, 334 and witnesses 143, 147, 191, 206, 217, 230, 267, 375 resistance domestic 409 and negative reactions, to Islamization/sharīʿa 59, 63, 70, 409 responsibility age of criminal 379–380 collective/group/joint 166, 266, 275, 359– 360 criminal 152–153, 164, 173, 253, 297, 331, 348, 355–356, 360 degree of 170, 369 diminished 353, 355–356 financial 176 restitution, of stolen property 249, 293 retaliation. See qiṣāṣ retribution. See qiṣāṣ revenge 83, 401 Revolutionary Command Council (rcc) (for National Salvation) 75, 384 Revolution for National Salvation 108 ribā (usury) 66–67. See also interest(s), charging of righteousness 148, 242, 267 legal requirements of 133 right(s) 239, 394. See also claims; equality/equal rights of God (ḥaqq Allāh) 139, 148, 222, 312 of accused 110, 120 of apostate 298 to appeal 62, 120, 238, 382, 399 of children 373, 380 of Christians 49 of citizens/people 95, 395, 400, 416 and claim(s), of men (ḥaqq adamī) 124– 125, 132, 135, 139–140, 148, 163–164, 222, 305, 315, 364–365, 368 of diya 336n146, 338, 354, 358 of heirs (of victims) 172, 177, 238, 310, 338, 362, 395 of husbands 184–185, 217 to kill 306 legal 106, 225, 238 of non-Muslims 49, 95, 98, 101, 151 to pardon 327, 359, 368 of possession 250 of private prosecutors 307–308, 312, 321

473 of public (ḥaqq ʿāmm) 249 to qiṣāṣ (retribution/retaliation) 293, 339, 341 of ruler/state 313, 339, 361, 365 to self-defense 155, 324 of state, to punish 306, 338–340, 358, 361–362, 389–390, 395 of victims/aggrieved (party) 172, 222, 288, 346 forgoing 229, 309, 365 robbers 242, 278. See also thieves robbery 109, 155, 256, 273–274, 276, 285, 287, 324. See also theft armed (as ḥirāba) 150, 155, 165, 274–275, 288, 391 attempted 273–275, 287 and bodily harm 280 and contradictions with Islamic punishments 277 on highway, as holdup on public road (ḥirāba) 19, 27, 55, 168, 270, 273–275, 279 with homicide 271, 275, 287 joint 275, 278, 280, 287, 293–294 nahb 242, 247, 274–275, 280–281, 285– 287, 290, 294–295 nature/definition of 105, 256n64, 285– 286 or theft, with force 242, 250, 256, 259, 270–271, 278–279 of property, equal to niṣāb 288 single vs. multiple perpetrators 276 as taʿzīr crime 280, 294–295 ruler, and right to impose death penalty 365 safe place/safe keeping (ḥirz) 165, 239, 241, 272. See also ḥirz Sales of Goods Act (1974) 43 sanctions 117 sane/sound mind (ʿāqil) 129, 132–133, 137, 141, 147, 152, 221, 232, 239, 272. See also sane sariqa (theft) 140, 165, 239n4, 266, 272. See also theft definition of 239–240 ḥaddiyya (theft liable for a ḥadd penalty) 19, 27, 125, 144, 239, 255, 266, 269, 283– 284 codification of 246

474 conditions of 260, 265–266, 275, 282 definition of 246–247, 259, 284 in South 150 and necessity 159 between spouses/relatives 245, 250, 263 scandal 203 sciences 296 natural and social 81–84 sectarian (parties) 407, 411 secular background of al-Turābī 80 constitutions 64 courts (niẓāmiyye) 33 leftist nationalism 44 parties 56, 410 penal code/legal system 72, 74, 304, 317, 337, 369, 413, 415 state 72 secularism 102 secularization process 413 security apparatus 91–92, 106 public 90, 268, 364 Security of the Revolution Courts (later ‘Emergency Courts’) 77 Security of the Society Law 382 Security of the Society Police 84n246 self-defense (al-difāʿ al-sharʿī) 152, 155–156, 312, 322–324, 329 senses (five), loss of 317, 358 September laws. See Penal Code (1983) sermons (khuṭba) 56 settlement 338 and diya 173–174 financial 176, 333, 336, 362 private (ṣulḥ) 249, 267, 311, 336–337 sexual abuse/assault 85, 196, 204 acts 188, 194, 198 crimes/offenses 192, 215, 223n17, 371 and ḥadd penalties 192, 215 orientation 189n49, 373 partners 195, 215, 217–218 relations, legitimate 181, 212 sexual intercourse 197, 209, 211 anal 195, 197, 224n18 (See also liwāṭ (buggery)) and consent/force 186, 196, 214 between males 182, 194–195

index of subjects and terms punishments for 185–187 carnal, against order of nature 185, 187, 195n68 consensual 206 defined 185 forbidden 220–221, 225–226 with minors 185, 187, 188n46, 189, 205, 213 right to (shubhat al-milk) 184 unlawful/illegitimate 19, 55, 105n342, 139, 148, 189, 198, 200, 209, 217, 224 (See also zinā) accusation of 223–224, 226, 229 (See also qadhf ) as defined in fiqh/sharīʿa 105, 180 and incest 191 and liwāṭ 191 and repentance 163 voluntary 156 zinā 107, 150, 221, 374 vaginal 189n48, 197, 214 by way of liwāṭ/zinā 189, 197, 214 without legal bond 190 zinā, and force 196, 199–200, 214, 218 shahāda 242, 297 shame, avoidance of 222 shameless/sinful acts ( fiʿl fāḥish) 188 sharīʿa 1, 3–4, 8, 12, 15, 31, 53, 58–59, 78, 97, 101–102, 115, 167, 173, 294, 327, 397, 400, 409–410, 412–413, 415 abolition/repeal of 25, 74 on alcohol 231–232 application of 9, 24, 26, 33, 45, 55, 58, 61– 62, 64, 68, 70, 82, 105, 116, 151, 377, 396, 398, 402, 408, 410–411 and non-Muslims 100–101, 114, 224, 228, 230 in North vs. South 97–98, 100–102, 114, 392 codifications of 5–6, 58, 407 and compatibility/harmony with [or not] 46, 93, 126, 281–282, 375, 405, 410 contradictions with 13, 52, 67, 111, 124, 250, 258–259, 283–284, 377, 402, 404n12 courts 38, 56, 116, 296 and criminal law 5, 25, 408 and definitions of crimes 105, 180 as divine authority 407, 414–415 on endowments (awqāf ) 36

index of subjects and terms and fiqh 57, 413 on homicide 318 influence of 104, 113 interpretation of 37, 116 introduction of 6, 43, 49, 54, 56, 60, 63 and jurisdiction 31, 38 laws/legislation of 113, 382, 410 “national” 5, 407 negative reactions/resistance to 59, 63, 409 orthodox 7, 45 and penal codes 72, 404 in personal status cases/family law 36, 103 in precolonial Sudan 7, 412 principles of 98, 131, 136, 281, 283, 374, 378, 397 and projects of other countries 108 and punishments/penalties 28, 94, 98, 105, 373, 381, 385, 390, 396, 406, 408– 409 death penalty 168 for non-Muslims 151 Supreme Court regulation/restriction of 26, 402–403 on reason/understanding 351 and Siwār al-Dhahab 69 as source of legislation/law 40–41, 64, 67, 72, 101, 109, 111–114 sovereignty of 52, 284 spirit of 391, 404n12 terminology of 328 training in 61, 77 view/perception of 356, 407 violations of 111, 284, 398 shūrā 64, 70, 82, 96 shurb al-khamr 27, 140, 148, 235. See also alcohol; intoxicants/intoxication siyāsa 149 slander 228–230 slavery 57, 382 Slavery Convention 381–382 slaves 225, 308, 316, 345 and qadhf 221–222 underage, and theft 240–241 smoking 34, 89 social groups/strata 311, 392 justice 57, 72

475 and national origin 373–374 order 337 sciences 81–84 stigma 204 society civil 101 claims of 337 interests of 250 Islamization of Sudanese 78 modern 113 protection of 377 and state, offenses against 65–66, 106– 107, 157n273, 165, 388n51 socio-economic status 373 solidarity group (ʿāqila) 113, 129, 171, 176, 305, 313, 317, 331, 348, 353, 363 definition/identity of 176–177, 311 and diya 311 sources, of legislation/law 40–41, 43, 47, 64, 67, 72, 83, 97–98, 100–101, 104, 109, 111– 114, 281, 384, 397 Southern Provinces (Regional) Self-Government Act (1972) 43, 46, 49, 64–65 Southern Regional Assembly 49 Southern Sudan Liberation Movement (sslm) 42 South/Southern(ers) 43, 46, 48–49, 72–73, 86, 96, 100–101, 150, 212, 395 Arabized, Islamized 70, 72 bodily harm in 358 claims for self-determination/selfgovernment 41, 43 conflict/war in/with 48, 56, 60, 408 exempt from fiqh-based punishments 378, 395 independence, and autonomy of 40, 48– 49, 64, 74, 94, 100–101, 105 and jihād 77, 94, 100 judges 78 Marxists 70 non-Muslims in 105, 150, 378 in North 56, 98, 105, 114, 392 parties 71, 73–74, 410 problem/question of 59, 70 punishments/penalties in 288, 378 revolt/rebellion in 49, 53 and role of sharīʿa 97–98, 100–102, 105, 114, 392 secession of 101–102, 151

476 women, brewing and selling alcohol 231, 391 South Sudan, Republic of 101 sovereignty of God 82 of sharīʿa 52 spouses and diya 310 and liʿān 228–229 reconciliation of 211 and relatives, theft (sariqa) between 245, 250, 263 state of emergency 60–61, 76, 92, 384 state(s) authority 82, 319, 337 crimes/offenses against 65–66, 106–107, 157n273, 165, 250, 388n51 interests of 335, 339 obligation of 321 and right to punish 313, 338–340, 358, 361–362, 389–390, 395 Southern 150 taʿzīr penalty imposed by 305, 356 war against 312n43, 371–372, 387n49 statistics 12, 23 status 374 and chastity (maqdhūf ) 225–226 and iḥṣān (immunity) 201, 212–213 juridical 149 legal 149, 171, 310 marital 180 of muḥṣan/muḥṣana 181, 200n82, 202 of non-Muslims 72, 97, 230 and position of women 10, 57, 193 religious 149 socio-economic 373 stealing 239, 262. See also robbery; theft food or drink 161, 253 by force/violence 270–271, 278–279 stolen goods/property 145, 241, 248–249, 261 legally acquiring 244 owners of 145, 248–249 receipt of 260–261 restitution/return of 244, 249–250, 254, 263, 288, 293 value of 261, 264 stoning 1, 79, 83, 166, 183, 195, 212–213, 215– 216, 218, 224, 339, 369–371, 381, 403. See also death penalty; execution

index of subjects and terms for muḥṣan 210 not carried out 385–386 for zinā 180–182, 199, 201, 203–204, 211, 371, 387 strikes, of judges 54, 61 Sudan Communist Party 47, 74 Sudan Council of Churches 56, 71 Sudanese Bar Association 74, 78 Sudanese Constitutional Court 22 Sudanese Socialist Union 43, 45–46, 63, 68– 69, 411 Sudanization 38 Sudan Law Journal and Reports (sljr) 18, 20, 27 Sudan People’s Liberation Army (spla) 49, 70–71, 74–75, 93, 101 Sudan People’s Liberation Movement (splm) 49, 77, 101 Sudan Police Force 85 Sufi Islamic Revival Committee 58 Sufi(s) 70 leaders 40, 63 orders 38–39, 41, 51 suicide 306, 346 abetment to 360 sultan(ic) 32 law 102 Sunna 34–35, 67, 81, 113, 181, 281 on banishment 366 on pardons 335 and Qurʾān, crime and punishments in/from 107–108, 116, 282, 289, 364 on sharīʿa rules 115 as source 396–397 Supreme Council of the Judiciary 13 Supreme Court [of Sudan] 3, 13, 57, 94, 117 on alcohol-related offenses 238 on bodily harm 304 case law 17, 20, 27, 113, 171, 176, 363, 403, 413, 415 chief justice of 15, 61 on famine and theft 253 and ḥirāba 289 on homicide 27, 304 interpretations of 9, 131, 277, 279, 403, 405 judges 10, 22, 25, 118, 349n185, 385n39 judgments/decisions 18, 20–21, 27, 130, 238, 268, 384, 387, 391, 397, 415

index of subjects and terms and lenient interpretations/correctives of 285, 397, 402–403, 407, 416 during Numayrī 404 overturning/quashing lower court convictions 14, 195, 199, 204, 334, 385, 386n45, 402 personnel, quality of 15, 19 on qasāma 130 review/confirmation of 196, 258, 282, 285–286, 334, 342, 396, 401–402 death sentences, amputations, life imprisonment 106, 122–124, 389, 401 qiṣāṣ 390 role of 9, 14, 398 and sharīʿa 26, 284, 391 on sudden fight 350–351 and use of schools of law/ fuquhāʾ 334, 343, 398 on zinā and pregnancy 198, 200 surreptitiousness, and theft 242, 246, 252, 259, 262, 266, 278 symbolism/symbolic 84, 394, 416 and insults to Islam 302–303 nature of alcohol ban 235, 237 of sharīʿa statutes 6 tanẓīmāt reforms 33 taqlīd 17 taxation 72, 85 jizya (head tax for non-Muslims) 72 zakāt (alms tax) 47, 98, 104 taʿzīr (crimes/offenses) 27, 53, 149, 153, 164, 168, 170, 195, 280, 286, 356, 366, 368, 371, 387, 394, 401 in Criminal Act (1991) 168, 170, 358, 368, 371–372 in fiqh/sharīʿa 286n44, 287, 364–365, 367, 369, 372 vs. ḥadd crimes/offenses 287, 367 and ḥirāba 270–271 and liwāṭ as 214 in Penal Code (1983) 286, 370–372 and public affairs 135 punishments/penalties 115, 135, 140, 150, 166, 172, 183, 194, 202, 205, 211, 215, 218, 230, 232, 237, 253, 257, 267, 284, 313–314, 336, 354–355, 394–396 for alcohol offenses 234

477 for causing harm, pain, disease, by poison or drugs 358 criminal circulars on 362 death penalty 168, 366, 370–372 for defamation 227 discretionary 332 flogging 370 and ḥadd 203–204, 207–208, 210, 227–228, 280–281, 284, 286–287, 294, 303, 404 for ḥirāba 273, 288 imposed by judges and state 305, 356, 390 for incest 191 for intentional homicide 338 for liwāṭ 182, 184 for political crimes 368 purpose/function of 364, 366–367 and qiṣāṣ 310, 317, 321, 335, 359 for rape victims 204 swift execution of 399 for theft 248 for zinā 201 and robbery 280, 294–295 teacher/pupil (relationship) 345 terminology 6, 17, 139, 287, 397, 406 Islamic 64, 95 jurisprudential 7, 109 legal 405 Qurʾānic 231 sharīʿa 328 territorial principles 96–97 terrorism/terrorist 106 of Islamist(s) 94 organizations 278 -related offenses 372 testimony(ies) 17–18, 133, 136, 142, 147, 222, 238, 242, 272, 279, 291, 334 accuracy of 243 of aggrieved party/plaintiff 144, 272, 292 to all elements, vs. some 279, 294 contradictions/discrepancies in 128, 137, 146, 162, 237, 294 of drunk people 132–133 false 138 of non-Muslims 146–147 number of 208 outside court 139 of underage child 133

478 validities of/admissability 128, 137, 144, 184, 238 withdrawal of/retracted 162, 209, 228, 230, 237, 250 of witnesses (See witnesses, testimonies of) of women/females (See women, testimonies of) on zinā 139–140 theft 31, 55, 62, 109, 139, 150, 248, 255–256, 276, 324, 370, 388n50. See also ḥadd; sariqa; stealing by adults, vs. minors 254–255, 264 among descendants, ascendants/relatives 245, 250, 263 and amputations 247, 389 confessions to 242 covert/surreptitious 242, 246, 252, 259, 262, 266, 278 criminal circulars on 250–251, 268 and debt 263–264 defined as robbery 274–275 (See also robbery) by dhimmīs 245 fiqh/fuqahāʾ on 239n4, 240, 242–243, 246–247, 255–257, 259, 262, 266, 281 of food/drink 161, 253, 268 ḥadīth on 245 joint/collective 265, 267–268 liability for 164 and mental infirmity 264 nature of property stolen 241–242, 293 as non-ḥadd offenses 246, 248, 251, 261, 263 pardoning of 244, 250–251 Penal Code (1974) on 246–247, 256, 276 Penal Code (1983) on 256, 276 proof of 20, 242–243, 258 of public property 264, 266, 268 public prosecution of 244 Qurʾān on 239, 241 and remittance on ḥadd 250–251, 254, 263, 268 and repentance 163–164, 263 and return of stolen good 244 sariqa, and necessity 159 sharīʿa-based definitions 105 and slaves 240–241 stealing, from ḥirz 249n44, 262

index of subjects and terms and use of force in 242, 250, 256, 259, 270–271, 278–279 theocracy 36 theology, of modernity 80 thieves becoming owner of alleged property 263 gangs of 278, 280 muḥārib 34, 163, 254–255, 272, 275, 278, 280, 282, 291, 293 robber (muntahib) 242 usurper (ghāṣib) 242 thirst, and necessity 159 threat of death 157–158, 255, 344–345 of grievous, imminent harm 155, 157–158, 344 tolerance 57, 98, 151 torts 153 torture 106, 110, 129, 136, 379, 381, 412 prohibition of 382–383 trade 47, 85 traditions common law 19, 78, 404 local 84 Transitional Military Council 69–70, 253– 254, 383 under Siwār al-Dhahab 252n53 trials 61, 85, 120 in absentia 120–121 and presence of aggrieved party 248– 249, 267 re-trials 120, 123 summary 399 tribal institutions 34 leaders 38, 70 tribes 33, 86, 373 ʿulamāʾ 6–7, 31, 35, 38, 58, 70 traditional 81–82 Umma Party 25n59, 39, 43, 48, 59, 71–74, 91n294, 301 unbelief, expressions of 296 unconsciousness 151, 153, 155 sleep 351n188 underage (children) 173–174, 206n94, 254 conversion of 297 girls, intercourse with 187 heirs of victims 308, 336

479

index of subjects and terms recidivists 255 sons 340–341 witnesses, testimonies of 132–133 unequal treatment, of men and women 375 United Nations Committee on the Rights of the Child 379–380 United Nations Human Rights Committee 375, 381 United Nations Special Rapporteur 377–378 Universal Declaration of Human Rights (udhr) 373, 376 universality 407 unlawful act 356–357 unrighteous(ness) 133 ʿuqūbāt (punishments) 362. See also punishments/penalties uṣūl al-fiqh 5, 81 legal methods of 181 usury, banning of 113. See also interest; ribā vanguard (ṭalīʿa) (in crime) 280 victims 144, 149, 227–228, 230, 272, 306, 310, 359, 395. See also aggrieved (party) assistance for 290 consent/permission of 169, 346 equivalence with perpetrator 305, 316, 329, 363 and heirs of 132, 169, 176, 178, 305, 307– 309, 312, 319, 336, 338–339, 361, 389 of bodily harm/homicide 122, 177 and diya 177, 314, 355, 362 pardon by 291, 326, 394n1 as private prosecutors 309, 329 rights of 172, 177, 238, 310, 338, 362, 395 of ḥirāba 272, 291, 292 identity of 242–243 and kinship with offender 272 lives of, inviolable 330 non-Muslim 227, 316, 329 and pardon by 163, 228, 250, 271, 291, 308, 310, 315, 319, 326, 368, 389–390 of qadhf (maqdhūf ) 221–222, 224, 226– 227 of rape 189, 191, 194, 197, 204, 214 rights of 172, 222, 288, 346 forgoing 229, 309, 365 and slaves 316 and testimonies of 292, 334

of theft 248, 250–251 of violent death 128–129 violations of ḥirz (safe place) 252, 266 of human rights 10, 27, 315, 383 of sharīʿa 111, 284, 398 by Sudanese regime 416 violence defense proportional to attack 323 force, stealing with 270–271, 278–279 virginity 200, 209 loss of 184 virgins (bikr) 212–213 visa, entry 329 waiting period (ʿidda) 181, 299 war atrocities 412 civil 74–75, 150, 192 and conflict in South 48, 56, 60, 408 against Muslims 83 prisoners of 312 against state 371–372, 387n49 western governments 409 wine 231–233, 240 witnesses 53, 128, 131–133, 142–143, 148, 205, 267, 334, 349 and alcohol/drunkenness 133, 238, 362 of all elements of crime 292 disagreements of 162, 209, 243 eyewitnesses 139, 144–147 female 142, 237, 267, 400 four (male) 141, 145–147, 191, 206–207, 217, 222–223, 375 in ḥadd crimes 279 non-Muslim 137n183, 237, 267 number of 129, 132, 137, 140, 144, 206, 214, 279, 362 of qadhf 230 qualifications of 129, 137, 140 of (good) reputation 143, 147, 191, 206, 217, 230, 375 sex/gender of 362 testimonies of 127, 129–130, 138, 142–144, 184, 237, 242, 249, 297, 342 underage 132 to zinā 180 women 34, 57, 85, 90, 99–100, 179, 197, 383 accused 204, 391

480 and alcohol-related offenses 231, 391–392 and apostasy 297–299 and blood price (diya) 171, 175, 310, 317, 363, 400 in business/public life 89–90, 100 discrimination against 65, 218, 374–375, 383 disfavored 217 and equality/equal rights with men 58, 99–100, 154, 171, 374 and equivalence with men 316, 328, 363 and ḥirāba 272 judges 78 position/status of 10, 57, 193 and qadhf 140n199, 222 and rape 156, 188, 191 testimonies of 140, 142–143, 146–147, 222, 242, 291–292, 375 and zinā 194, 387 wording, unequivocal 220 worship, places of and endowments (awqāf ) 259–260 theft from 264 wounds/wounding (someone) 125, 175, 332– 333, 358. See also bodily harm; qiṣāṣ, for bodily harm accidental 176, 333, 358 defined 357 diya for 176, 358 equivalence between wound and punishment 305 intentional 150, 169, 332 multiple 317 as same that led to death of victim 315– 316, 319 value of 394 written accusations 223, 229 records 85 zakāt 72, 114. See also taxation Zakat Act (1984) 52

index of subjects and terms zāni/zāniyya 209. See also zinā punishment for 157, 180–181 and status as muḥṣan 181, 202 zinā (unlawful/illegitimate sexual intercourse) 27, 105n342, 107, 140, 149n236, 150, 188, 193–194, 196, 203, 205–206, 211, 213, 215–216, 220–222, 306, 365, 374, 386, 391–392, 396 accusation of 220, 229 confession to/confirmation of 139, 191, 199, 201, 230 convictions for 210, 225 Criminal Act (1991) on 229 definition of 186–187, 189, 194–195, 197, 214 in fiqh/fuqahāʾ 146, 180, 182, 195 and free will/consent 187, 191 ḥadīth on 180 and incest 191 killing those guilty of 312–313 and legal uncertainties (shubha) 181 for muḥṣana/muḥṣana 166, 199, 202 Penal Code (1974) on 187 Penal Code (1983) on 186, 188, 190, 203, 206–207, 211, 214 and pregnancy (as proof) 193, 198–200, 202–204, 213–215, 217–218, 375, 386 proof of 113, 139, 145–147, 179, 184, 191, 206–208, 215, 374–375 in Public Order Court system 399 punishments/penalties for 157, 180–181, 193, 201, 212, 390 ḥadd 146n222, 147, 181–182, 191, 218, 403, 407 stoning 180–182, 199, 201, 203–204, 211, 371, 387 in Qurʾān 179 and rape 179, 182, 186, 188, 190, 203, 206– 207, 211, 214, 403 (See also rape) sexual intercourse, and force 196, 199– 200, 214, 218 testimonies on/witnesses 139–140, 180