To Reform Penal Treatment: Sudan Must Establish a New Criminal Justice
The Plight of Sudanese Judiciary and Criminal Justice
The unabated injustices to women and the other minorities in contact with the law by various provisions, procedures, and implementations of the Sudan Criminal Law, in general, and the Penal Code, in particular, have routinized gross violations in the human rights and social welfare situation of the displaced citizens and the other disadvantaged groups in the National Capitol Khartoum, as well as the other urban and rural areas of Sudan. Under abusive provisions of the enforceable Shari’a laws, a repressive “judicial” system has been strictly imposed to manipulate adjudication and the other sensitive areas of the criminal justice processes for partisan goals at expense of the due process of justice.
In the passing years after the June 89 military coup, SHRO-Cairo has repeatedly raised detailed memorandums to the Sudan Government protesting legislature, executive and judicial abuses, and the shortcomings of the Sudanese criminal justice. Realizing the urgent need to establish a new system based on the best of Sudan Law resources, namely international human rights norms and judicial precedence, in addition to humanitarian versions of the Islamic Shari’a and the other indigenous sources of adjudication – as might be democratically approved by the People of Sudan – the organization consistently suggested immediate abrogation of the government’s harsh laws.
In the enforceable system of the day, judges exercise unrestricted discretionary powers to incarcerate, imprison, fine, inflict physical punishment, or sentence to death the accused persons without fair guarantees or equal provision for the rights of the accused, especially the right to innocence until proven guilty, legal consultation, public hearing, cross-examination of witnesses, fair trial free of tortures and unlawful confessions, etc.
Apart from gross violations of these fundamental principles, the judges’ training in the lawful profession that governs the bench, however, has steeply deteriorated over the decades. This is partially due to the non-democratic structure and performance of the government-controlled Bar Association that in democratic times enjoyed supervisory tasks with the academia, independently from government controls, to ascertain competency standards for the proficiency, in addition to reduced standards of law studies in the Sudan law schools as a direct consequence of the narrow-minded theocratic conversion of the country’s academics throughout the 1990s up to the present time.
The presidential intrusion in the judiciary has already reaped fruitless deeds since the army officers of the so-called Salvation Revolution ignorantly annexed the Sudan Judiciary Council to the partisan preferences and personal desires of the ruling Brotherhood to replace the former democratic process of selecting judges on the basis of modern personnel criteria, which was a necessary procedure to promote deserved judges to higher ranks by the autonomous decision of the Council.
Since then, the judiciary has been massively disabled by the executive powers of the political rulers who authorized executives to issue private courts, overrule Chief Justice and the Judiciary Council, and impose massive dismissals of the Sudan competent judges. The objective nature and the quality of adjudication, as a genuine part of the criminal justice system, has finally deteriorated to a system of corrupted political allegiance to satisfy the recruiting authority, regardless of the country’s needs for the independent judiciary, the rule of law, and the due process of justice.
The crisis of Sudan’s criminal justice and penal treatment has already plagued the country hand-in-hand with the executive usurpation of the independent judiciary, the theocratic academia, and the political suppression of the democratic Bar. The ensuing complications of this structural crisis require comprehensive reform that should firmly restore independence of the Judiciary and the Bar, professionalize the academic curriculum of law studies at the Sudan law schools apart from theocracy, political ideology, or partisan preferences of presidents and/or ruling regimes.
With the increased striving for peace and democratic transition in the whole country, the Sudanese are strongly required by international law and the best national heritage to put forward a modern system of criminal justice, penal code and criminal procedure based on internationally recognized human rights norms, to succeed the 14-year fruitless orientation of justice and non-humanitarian implementation.
A Critical Approach to Shari’a Jurisprudence
In essence, the Islamic Shari’a jurisprudence might be approached by a Zahiriya perspective that simply emphasizes literary application of Shari’a sources such as mechanical flogging of an adulterous person, for example, based on the Sura XXIV (al-Nur: 2), which says “The woman and the man guilty of adultery or fornication flog each of them with a hundred stripes.”
The Shari’a jurisprudence, however, must correctly deal with crimes and penal treatment using another Ijtihad approach that emphasizes the Prophet’s deed, which resembles the highest source of spiritual implementation in the Muslim faith, being the most authenticated authority that translated the word of the Holy Book of Islam to actual action.
The Zahiriya restrictive approach, which has been strictly applied by the Brotherhood of Sudan in close collaboration with the defunct rule of Nimeiri (1983-1985) throughout the second theocracy of the Brotherhood military coup up to the present-time presidential system, increased the discretionary powers of judges to the extent of interpreting the law only to favor the physical penalties of amputation, flogging, crucifixion, and death.
Obviously, this implementation was meant to spread terror among the population since it was brutally imposed by the deformed machinery of the police and prison regular forces under the superior guidance of Omer Hassan Ahmed al-Bashir, Dr. Hassan Dafa’-Allah al-Turabi, ‘Ali ‘Uthman Taha, Dr. Ibrahim al-Tayeb (Sikha), Brigadier Bakri Hassan Salih – among other leaders – particularly Professor ‘Ali Nafi’, the field-marshal of Ghost Houses and security apparatus, irrespective of the ethos of religion or the rule of law.
The ijtihad approach, on the other side, allows flexible terms of penal treatment to the accused, as well as granted rights to the victim, in the context of a spiritually humanitarian path of mandatory faith relations that are necessarily based on the individual’s consciousness and personal commitment way above any external dictates. Even if a State draws heavily from the Prophet’s Path for enforceable justice, the penology of treating adultery, for example, must be legally based on the Prophet’s abstinence from immediate application of the al-Nur verse to allow a self-convicted adulterer to withdraw his/her previous confession of the guilt, as is well-known in the documented history of the Prophet’s life: only when the adulterer insisted on receiving the penalty, several times, on her/his own right, at different intervals of time, did the Prophet reluctantly ask for implementation of the prescribed penalty with clear instruction to stop the punishment if the convicted person so desired at any given moment of the implementation process.
Apart from adultery, defaming women, rape, and other forms of severe sexual assault are treated as grievous crimes that require useful preventive and curative measures, not simply flogging or prison confinement for the culprit, as well as meaningful community-based remedies such as seeking forgiveness of the victim from the part of the wrong-doer, or paying financial compensation and receiving public humiliation to the satisfaction of the injured party.
Whereas applying the Prophet’s Humanitarian Approach would save many cases from the familial and social stigma of fornication or adultery among other desirable benefits, applying the Zahiriya rigid approach would certainly deprive the accused of the genuine right of closing up the case, as they might wish, on the assumption that there is no injured party to claim the guilt or ask for compensation other than the accused himself/herself. Moreover, implementing a Zahiriya approach never accounts for the necessary individualization of the accused needs for spiritual and social reform.
The judicial and humanitarian lessons heavily drawn from the Prophet’s Ijtihad to verify the penalty in a humanitarian way rather than mechanically applying the Qur’anic verse is the greatest legitimacy for Muslim judges to exercise disposition in the service of the reformative purpose of penal treatment.
In another case, if a person is accused of adultery by witnesses, the onus of proof is firmly conferred upon the “eye witnesses,” if ever available, who must be meticulously scrutinized to provide clear evidence with accurate details of the actual act of adultery. This practice is virtually impossible to ascertain.
According to the Qur’an, “If ye have a dispute concerning any other matter, refer it to Allah and the messenger” (The Holy Qur’an, Sura Al-Nissa: 59). The Prophet’s approach paid full consideration to the socio-economic, psychological, and physical conditions of the accused. The Prophet emphasized forgiveness, whenever possible, and encouraged advocating the circumstantial evidence by interpreting doubts for the benefit of the accused. A person who committed crime was not prosecuted unless he/she was a sane adult liable to criminal responsibility. Killing in self defense and stealing food to eat were exceptional cases. A lunatic and/or a person intoxicated by compulsion was exempted from prosecution if they so committed crime.
The lessons possibly drawn from these wrongfully ignored Shari’a principles pertain to the necessity of abrogating all together the present-time non-Prophet’s, i.e., non-Islamic enforcements of Sudan law that hurriedly allow judges to kill the accused for adultery, amputee a thief’s limp for a bunch of food, or arbitrarily flog a woman for fornication: judging adultery requires the establishment of a special system of spiritual judiciary that is not less perfect than the full independence of judges from the executive or legislative powers of State.
The actual implementation of these ideals under the Sudan’s Shari’a “justice” is at best wrongful in direct correspondence with the repressive system of criminal justice, executive usurpation of the Judiciary, and the non-democratic governance of the country. To perfectly implement a criminal justice system based on the Prophet’s Humanitarian Path, which is the only legitimate Islamic system, the judges themselves must be highly renowned for pure religious faith and clarity of spiritual purpose to be able to appreciate the right of the accused to withdraw from his/her self-confessed guilt any time during the process of implementation besides the other difficult tasks of a system of justice revealed, in essence, for Lordly spiritual sublimation, let alone the ill-trained, politically biased personnel of the Sudan’s Brotherhood rule.
Although it is possible in contemporary life to establish judicial systems free of executive or legislative intrusions (still responsible before democratically-elected parliamentary structures) within a regular democratic system of rule, the spiritual personnel credentials that are necessary for the Prophetic implementation of justice are only spiritually possible, but are practically particularistic (i.e., non-routinized via bureaucratic systems of personnel selection). On the other side, liberating the Sudan Judiciary from presidential intrusions and the other executive advances by the presidency (as in the case of the latest bar elections when the votes were openly rigged by presidential directives) is a must to put the Sudan Judiciary back to modernity, democratic routinization, and the due process of law.
Contemporary Failures of Shari’a Implementation
In comparative human rights research, it is possible to assume that some of the Prophet’s teachings have been incorporated in various forms by different sources in contemporary international norms. However, Muslim authorities wrongfully insisted on implementing harsh penalties, instead of enforcing the available humanitarian alternatives of physical punishment with the Ijtihad approach.
In handling the crime of adultery, the existing Sudan Government’s theocratic Penal Code did not differentiate properly between the rights of the accused persons who are entitled to individualization of penal treatment, according to the Shari’a itself, especially the non-Muslim, and between different cases of Muslims. In the case of drunkenness, the Penal Code did not put in consideration the tradition of the Sunna, which provided a humanitarian treatment for the offender. The Prophet himself preferred good preaching to physical punishment, and yet flogging was inflicted by his successors for the act of wine drinking.
The history and the present time practices of the theocratic rulers of Sudan, Nimeiri and Bashir, indicate that the humanitarian approach of the Prophet and his Ijtihad were practically abandoned. Only the Zahiriya harsh approach was blindly applied for repressive political goals, which completely failed to abide-by the teachings of the Prophet or even the Minimum Standards of the United Nations for Crime Prevention and the Treatment of Offenders to which Sudan is a State Party.
The Sudan Human Rights Organization Cairo Office is aware that Shari’a has been a genuine component of Sudan laws since they were put in force based on the 1860’s Penal Code of India, which, in turn, was influenced by Islamic Law. The presently theocratic criminal justice system of the Sudan Government, however, failed to use the tradition of Ikhtilaf (different viewpoints) to issue flexible Fatawi (scholarly decisions) to insure contemporary harmony of the Shari’a with societal change, cultural and religious diversity, and community needs.
In the absence of Ijtihad and the prevalence of the Zahiriya authoritative madhaib [schools of jurisprudence], the rights of non-Muslims have never been equally observed on equal footing with their Muslim counterparts in the same homeland, although earlier Mujatahids [scholars] of Islam, for example, Abu Hanifa, the famous jurist, decided that Muslims are obliged to respect the right to wine drinking and wine ownership by non-Muslims in a Muslim State. Equally the Ahnaf jurists exempted non-Muslims from the application of hudud because the belief in Islam is a pre-condition for the application.
SHRO-Cairo has repeatedly criticized the dehumanizing, unscholarly, politicized version of the Sudan Criminal Law and Penal Code (see the shro-cairo.org). The failure of Shari’a jurists to keep pace with modernity with respect to the insurance of equal rights to the women and the non-Muslim citizens increased the national tension between Shari’a supporters and the general public that is deeply concerned with the equality of citizenship as a foremost constitutional right, regardless of faith, gender, or race.
Return to the 1974 Laws
Earlier in 1974, a new penal code accompanied by a code of criminal procedure was enacted. The new code maintained most provisions of the repealed penal laws. These laws included significant amendments and approaches guided by “the knowledge and experience of Sudanese jurisprudence in the course of the effort made to correlate the context of law with the needs of Sudanese customs, values, and traditions that did accumulate during seventy years of legal application. This process also took advantage of modern jurisprudence and legal theory.”
Among many other changes, the age of consent was up-graded to be eighteen years in certain crimes; the age of criminal responsibility became ten years instead of seven. Whipping was abolished, although flogging unfortunately continued to exist as a recognized punishment. The execution of a person whose age was less than 18 years and/or above the age of seventy years was prohibited. Imprisonment for a juvenile whose age was less than 16 years was also prohibited.
In the 1974 law, culpable homicide was not considered murder if committed by a person deprived of self-control due to a mental disturbance. A woman who caused her self to miscarry in order to avoid shame was imposed lesser punishment than other cases of voluntary abortion, and a wife’s sexual intercourse with another person was criminalized, regardless of the consent or connivance of the husband. Because of these humanitarian provisions, the democratic Bar Association (before the June 89 coup) adopted the 1974 laws instead of the notorious September Laws 1983 until a democratic legislation would consider a new criminal system largely based on international norms and the Sudanese precedence system of adjudication.
Judicial Tensions and Renewed War in Pastoral Sudan
The Sudan criminal justice equally failed to resolve armed striving in the pastoral areas of the country between diverse ethnic groups. The country continues to suffer interethnic conflicts, which are based on the competition of pastoral groups to ensure water and pasture for their animals in the Savannah and semi-desert belt.
The Baggara (i.e., cattle herders) of Kordofan and Darfur regions together with the Dinka and other Nilotic groups of the Southern part of the country constitute major sections of the pastoral population. Because of the limited natural resources of pastoral land, in addition to a serious shortage of services and facilities, clashes and disputes occur frequently between individuals and groups. Very often, small disputes develop into large-scale armed conflicts and feuds with gross losses of life and property. And yet, the failure of development administration and planning in integrating the socio-cultural and politico-economic needs of pastoral people into regional development remains a major factor for the on-going armed conflict in these areas.
Another significant factor for the continuity of violence in the Savannah belt of the Sudan relates to the expansion of mechanized farms at the expense of pasture. This factor articulates clearly through the correlations of internal migration with the displacement of indigenous groups from the traditional agricultural sector. The grievances of many nomadic groups (such as Rufa’, Kennana, and the Ingessana peoples among many other indigenous groups) were escalated further by the exclusion of their animal husbandry from the allotment of mechanized schemes. Moreover, many government officials abused the executive power to expropriate land from these traditional groups, especially in the Blue Nile, White Nile, and Upper Nile provinces.
Despite the serious lacking of development programs that are urgently needed to establish a permanent and just solution for the existing conflicts due to wasteful military and security spending by the presidency, Aside from failures of the security-influenced criminal justice, Sudanese indigenous adjudication has relatively managed to reduce the conflict between legal norms and institutions and the indigenous traditions that influence the popular handling of socio-legal problems. Still, the major ethnic, economic, and political tensions that motivate group violence are largely unresolved.
Theoretically, compensation of the injured party in some cases with blood money is allowable in Islamic Shari’a Law, which theoretically encourages the groups in conflict to resolve their tensions peacefully. The application of government policies in this concern, however, has not resolved the protracted ethno-political tensions in Darfur or the other parts of the country. In addition to the negligence of development projects by the succeeding governments, Shari’a punishments were excessively implemented by the Khartoum rulers to terrorize the political opposition of Darfur people who have consistently rejected the Brotherhood rulers before and after the June coup.
As the cases of many Sudanese African groups indicate, the June 89 government favored the Arab-descent party in the tribal conflicts between the Arab and the non-Arab Sudanese of Darfur and the Nuba Mountains. Shari’a Law was abused by Sudan Government to discriminate between citizens on the basis of faith, race, and descent. The massacres of the Zagawa and Masalit people by Arab militias, the extra-judicial killing and displacement of Nilotic groups by the government-controlled Peoples’ Defense Forces, and the enslavement of Nuba and Dinka children and women by Brotherhood-militias in the war-affected areas were never fully controlled or compensated.
Most recently, the courts of DarFur sentenced tens of citizens with death sentences, amputations, or heavy fines. The courts applied the Penal Code and Criminal Procedure which, as illustrated in this Memo, did not guarantee the minimum standards of the due process of justice. The insistence of the Sudan Government to implement these laws, despite the continuous failures they produced, must be seriously challenged and then wholly replaced with humanitarian provisions as recommended by the democratic Bar Association (1985-1988), human rights and civil society groups, as well as the Human Rights Commission and the International Community.
Immediate Criminal justice Reform
Constitutionally, Sudan Laws as they exist today must be liberated from the unabated abusive application of Brotherhood jurisprudence to a non-partisan system of justice that should be mainly based on international human rights norms to guarantee the internationally recognized standards of crime prevention and the treatment of offenders.
In the meantime, the government must insure the freedom of religious beliefs without discrimination of any form for the non-Muslim population to enjoy their own faith and personal freedoms apart from any Muslim patronage or dictates.
Towards the application of principled, community-based and/or individual educational activities to improve the humanitarian life of the Muslim society, the Muslims concerned with Shari’a should abide-by the Prophet’s humanitarian teachings via the Ijtihad approach, if they are interested, rather than the Brotherhood’s rigidity or the Zahiriya narrow-minded fiqh.
For immediate action:
? With reference to the pending case of the Sudanese woman Intisar ‘Abd al-Gaddir who, accused of adultery, is susceptible to flogging by provision of the penal code, the Organization asks the Sudan Judiciary to stop flogging or stoning a citizen accused of adultery by the enforceable Shari’a Law. As is appropriate, the judiciary must discharge the case by encouraging the accused to withdraw admission of the guilt, at any given moment of the judicial process, in accordance with the Prophet’s deeds.
? The Organization asks the government to stop executing death penalties on the recently tried citizens of DarFur in compliance with the local adjudication of the indigenous population that emphasizes blood money compensation instead of killing, as well as the international human rights law that prohibits death penalties in principle.
To insure lasting reformation of the Sudan laws, judiciary, and the criminal justice system, SHRO-Cairo asks the Sudan Government to:
? Abrogate the Sudan Criminal Law, procedure and penal code.
? Reinstate, as is appropriate, all the judges dismissed by the June coup or the succeeding presidency for political reason to their respective jobs.
? Establish new criminal and penal laws based on international human rights norms in close collaboration with the democratic opposition, the Human Rights Commission, human rights organizations, and civil society groups.
? Abandon theocratic orientation and abuses of Sudan Laws and Judiciary by the legislative, executive, and presidential authorities.
? Assure independence of the Judiciary by clear separation between the legislative, executive, and judicial powers of the State.
? Reinstate the autonomous Council of the Judiciary to run the judiciary affairs independently from the presidency.
? Rectify the International Agreement on the Elimination of All Forms of Discrimination against Women to promote the women status in society and state, and to protect the women’s rights in Sudan Laws and the criminal justice system.
? Stop the civil war that is increasingly escalated by the government in DarFur by immediate, consistent, and direct peaceful negotiations with all concerned regional and national parties.
? Apply substantial reduction of the military and security budgets of the State to be able to allocate sufficient funding to promote the humanitarian conditions of the displaced population and the other victims of civil war, as well as the social and economic conditions of DarFur and the other marginal regions.
? Eliminate the government bias to the Jangaweed Arab-militias as a major cause of the armed ethnic cleavages between the Arab-descent and African-descent citizens of DarFur.
? Strengthen the human rights of nomadic groups in the other pastoral areas of Sudan.
? Modernize the indigenous adjudication systems of Sudan Bedouins with democratic measures based on indigenous sources, independence of the judiciary, and international human rights norms.
Copies to:
– Sudan Government, Khartoum
– Sudan Judiciary, Khartoum
– Attorney General’s Chamber, Khartoum
– The Sudan Bar-Association, Khartoum
– The National Democratic Alliance (Sudan)
– The SPLM Peace Negotiating Team, Nairobi
– The Human Rights Commission, Geneva
– Human Rights Watch, New York
– Amnesty International, London
– National Endowment for Democracy: Washington, D.C.
– The Arab Organization for Human Rights, Cairo
– The Arab Lawyers Union, Cairo
– Sudanese human rights and democracy groups
* Many paragraphs of this Memorandum are originally included in the SHRO-Cairo Project:
Encyclopedia of Islamic Criminal Justice (2004-2006)