Death sentence for apostasy is unconstitutional, says legal expert
May 31, 2014 (KHARTOUM) – Sudan’s apostasy law by which a Christian woman was sentenced to death this month contravenes both the 2005 interim constitution and the International Covenant on Civil and Political Rights (ICCPR) the country ratified more than two decades ago, a legal expert argued.
The court convicted Ibrahim, who is in custody with her 20-month-old son and her newborn baby, of the charges on May 11th and gave her three days to return to Islam.
The judge also sentenced Ibrahim to 100 lashes after convicting her of adultery as under Sudan’s Islamic Shar’ia law her marriage to a non-Muslim is considered invalid and therefore an adulterous relationship.
The ruling drew widespread condemnation by Western governments and human right groups.
Sudan acceded to the ICCPR of 1966 in March 1986 and entered into force three months later.
Article 18(1) of the covenant states that “Everyone shall have 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”.
The following section of the same article underscores that “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”.
Section three states that this freedom “may 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”.
Dr. Faisal Abdelrahman Taha, considered a Sudanese authority on international law, said that the government never expressed any reservation to any provision of the ICCPR when it acceded to it or issued any interpretative declaration like some other Arab countries.
“The covenant is binding to its parties and it affords many rights not even endorsed or approved by Islamic Shar’ia law,” Taha told Sudan Tribune by phone from Abu Dhabi, a situation which poses a dilemma for the Islamist government.
He emphasized that international law does not allow a state to use its national laws or constitution to justify its failure to fulfill its obligations under a convention it ratified.
The former head of International and Comparative Law division at the University of Khartoum (UoK) recalled that Sudan affirmed its adherence to the principle of the freedom of religion in official reports submitted to the Human Rights Committee tasked with monitoring adherence to the ICCPR.
This includes its third periodic report dated June 26 1996 which noted that article 38 of the 2005 constitution states that “every person shall have the right to the freedom of religious creed and worship, and to declare his/her religion or creed and manifest the same, by way of worship, education, practice or performance of rites or ceremonies, subject to requirements of law and public order; no person shall be coerced to adopt such faith, that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent”.
In 2007, the Sudanese government addressed concerns raised by the committee regarding incorporation of the covenant in national law by saying that according to Article 27(3) of the 2005 constitution ” 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 [of rights]”.
Khartoum also noted that article 48 of the law of the land states that “The Bill of Rights shall be upheld, protected and applied by the Constitutional Court and other competent courts”.
“If that interpretation presented by the government on article 27(3) holds, then the ICCPR is now part of the constitution and any law that contradicts the covenant such as the one on apostasy can be challenged as unconstitutional,” Taha said.
But Taha acknowledged that Khartoum has not always been consistent in its interpretation of the ICCPR application especially when it conflicted with Islamic Shar’ia law.
In 1991 for example, Sudan told the human rights committee in response to a query on apostasy law that this crime is punishable by death and that Islam is not just a religion but a complete set of teachings on private and public life.
The East African nation also argued that people who commit a crime of apostasy pose a threat to society and are comparable to those classified as traitors in other countries.
But paragraph 61 of a report submitted by Sudan to the committee on December 6 1991 declared that “national law states that the covenant has precedence over all national laws”.
Taha said he believes that the government or even the courts might resort to Article 5(1) of the constitution as a line of defense against unconstitutionality of apostasy law which states that “nationally enacted legislation….shall have as its sources of legislation Islamic Shar’ia and the consensus of the people”.
“This article, however is directed at the legislator or parliament when drafting a law. Nonetheless, the judge may rule that apostasy law emanates from Islamic Shar’ia law and therefore it is constitutional in accordance with article 5(1) of the constitution,” he said.
“If that occurs, then this means that Sudan violated its obligations under the ICCPR and the government cannot invoke its internal laws as a justification for not performing an international obligation,” Taha said.
He pointed out that article 2(2) of the ICCPR obligates state parties to “to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant”.
Sudanese officials have hinted that courts will not uphold the death sentence and its foreign minister Ali Karti said that this case inflicted a damage internationally to the country’s image.
“Sudan is committed to all human rights and freedom of faith granted in Sudan by the constitution and law,” Foreign Ministry spokesman Abu-Bakr Al-Sideeg told Reuters. He added that his ministry trusted the integrity and independence of the judiciary.
There have been no known executions for apostasy since the 1991 Sudanese Criminal Code was enacted, although many have had their charges dropped or convictions overturned after recanting their faith.
(ST)