Home | Comment & Analysis    Wednesday 2 December 2020

Reform family Muslim & customary laws in Sudan

separation
increase
decrease
separation
separation

by Zeinab Abbas Badawi

In a country like Sudan, women’s human and legal rights are not only the concerns of women but also an imperative for development and poverty reduction. The hard fact is that there is no country in the world, and certainly, no poor country, that develops without the full participation of its entire population. That is part of reality that has to be faced. The other part of the same reality is that the denial of the women’s human and legal right curtails their capacity to participate in and contribute fully to development and poverty reduction.

This paper will address the issue of needed law reforms in the area of family Muslim laws and customary laws in Sudan. It may help first to have an overview of the relationship between legal reform and development with a special focus on the role of law in women development. In the second part of the paper, I will try to touch on key issues pertaining to legal reform in the area of family and customary laws including an overview of the current legal status of Sudanese women, particularly the status of women under the Muslim family laws and customary laws identifying the main gaps in the law. In the third part of the paper, I will try identifying some proposals for reform in the area of Muslim family laws and customary laws exploring experiences of some other countries. Finally, some conclusions and recommendations will be formulated.

2. Legal reforms and development
Sound legal frameworks are prerequisites for economic growth and social development. The process through which laws and regulations are conceptualized, drafted, enacted, publicized and enforced is the foundation of a society governed by the rule of law. Legal reform is an ongoing and incremental process that involves the executive and legislative branches, law reform commissions, non-governmental organizations, and the public. For most countries, legal reforms address new international standards, responds to social and economic issues, expands access to justice or improves court operations. Effective and coherent legal reform requires a comprehensive and sustainable approach that avoids importing “model” inconsistent with national legal and socioeconomic norms. Effective legal reform also promotes opportunity, security, and empowerment for the world’s poor.

3. Legal reform: gender equality and development:
The laws and customs practised in any given society depend on historical experience, structural of power and culture specificity. But all too frequently, women are made to believe that these laws are natural and therefore immutable. Women rarely have information concerning statutory laws or the sources of either formal or informal laws governing their lives. Internalized customs and attitudes combine with external pressures as a barrier to women activism and self-realization.

4. Women, law and development:
During the last two decades, improving women’s legal rights has become a priority for women organizations in most of the countries of the world. The movement for women’s legal rights created a lot of debate around the role of law in establishing women’s status. According to legal sociologists, Nader and Todd: Law has many functions. It serves to educate, to punish, to protect private and public interests….to distribute scarce resources, to maintain the status quo, to maintain class systems, and to cut across them, to integrate and disintegrate societies- all these things in different places, at different times, with different weightings….Law may be a cause of crime; it plays, by virtue of its discretionary power, the role of the definer of crime. It may encourage or discourage respect for itself. (Nader and Todd, 1978)(1)

In discussing the marginality and subordination of women, John Stewart mill pointed out over hundred years ago, women negative self-image is determined by a full range of social forces in which law is both reflection and an instrument perpetuating them. All women are brought up from the very earliest years in the belief that their ideal of character is very opposite to that of men; not self-control but submission, and yielding the control of others. All moralities tell them that it is their nature to live for others, to make complete abnegation of themselves, and to have a life but in their affection (Mill, 1971) (2)

More recently the feminist movement has incorporated as an operating principle its appreciation that law presents a formal codification of cultural attitudes towards women and definition of gender (Garfinkle, Lefcourt& Schuler, 1971).

According to Schuler “one of the most powerful insights of the contemporary women movement is about the critical role the law playing in establishing women’s status, and particularly in upholding and legitimizing women social and economic subordination. Essentially societies regulate the acquisition on and control of land, jobs, credits and other goods and services through their legal system, that is through legislative and adjective processes, in totality just societies the interest of all citizens would be protected through this process, but such is not the reality of life on earth so far. Utopias do not exist and even if they did, ideas about justice and equality would continue to develop. To a varying degree, what happens in all societies is that law skews access to these resources to the benefit of some and the determinant of other sectors. In doing so, the law is playing a key role in defining or supporting different power relations based on gender, class, ethnicity, race caste, etc. with specific reference to gender pattern of legally female subordination (Schuler, 1992)(3)

Women’s subordination, based on unequal gender relations, is manifested in the law in several key areas, particularly labour laws, penal law and civil law which govern legal capacity, rights and obligations in marriage laws guardianship, inheritance, income, and land right and participation in public affairs. In some instance, women inferior status result from formal legislation, but it can also result from prejudicial social practices not challenged by the law. Where attempts to redress the gender imbalances through legislation have occurred, women status can remain unchanged in practice due to the inaccessibility of their right through differential, discriminatory or misunderstanding of women rights by women and society in general. The gap between de facto and de jure treatment is a clear measure of women’s social value (Margaret Schuler, 1992). Ibid

The idea of “public” versus “private” sphere as expressed in law is another key measure for society’s perception of women’s rights. The private sphere (domestic life, home and family) is considered the traditional domain of women, the public sphere (work and politics is accepted as a domain of men. This public / private dichotomy is deeply ingrained in the law. Regardless of the operative legal system or cultural context, laws touching the public arena (e.g. Labor laws) have typically been modernized and brought into line with more enlightenment thinking, while family and personal matters in the private sphere have, on the most part been left untouched by the state. In Asia and Africa the phenomenon is visible in the way the state law governs the public sphere and personal (or religious) and customary laws cover family matters in often rigid and regressive ways (Asia pacific forum on women aw and development, 1990)

While the particular legal manifestation of women subordination varies from country to country, there are also striking commonalities. In the family women legal rights to make a decision, control resources, inherit, contract marriage and divorce among others, are deficient in many countries. In the workplace whether formal or informal sector women roles are still not sufficiently recognized and the exploitations of the female workers are often sanctioned by law.

Another major problem with the law is that the vast majority of women are outside the system especially rural and urban poor women, taking into consideration the global demographics, it is probably safe to conclude that most women on the face of the earth do not think of themselves as having rights, much less as having any relationship with the official legal system. They are outside the system partly because they do not know what it offers them and partly because the system does not offer them much.

In sum, laws reinforce women oppression by legitimizing hierarchical gender relations, proprietary rights of men over women, unequal division of labour and power over the allocation of resource. Certain mechanisms are key to this process:

-  Unjust laws that are discriminatory and limits the scope of women rights
-  Prejudicial enforcement of the law favourable to women by police or gender-biased judges or courts.
-  Ignorance of the law and law-making processes by women who tend to be unaware of their legal status, of the rights they do possess, on the effect of the law have on them, or the role they might play in changing the law.
-  Ignorance of the law and law-making processes by women who tend to be unaware of their legal status, of the rights they do possess, on the effect of the law have on them, or the role they might play in changing the law.

Finally, since inadequate gender-based biased and unjust legislative formulation, law enforcement and adjudication mechanisms reflect underlying social values change at those levels require confronting the cultural ground upon which the system rests. In practice, no change can be effective at the substantive or structural levels without strategic educational inputs. (ibid)

5. Legal reform: family and customary laws
Many experts have identified retrograde societal practices as a major obstacle to the economic and social development in the region. Family laws and personal status laws are not secondary matter but are a core of the community’s life. They govern basic issues, such as whom an individual may marry, at what age, at what behest, whether or not an unhappy marriage can be terminated; by whom and under what circumstances, whether one will have access to one’s children following divorce; be permitted to seek education and work; be sovereign over one’s own person and movements; be entitled to full citizenship with rights and responsibilities, and have redress against violence and injustice.

In many Islamic countries including Sudan legal codes quite officially exclude women from basic human rights and civil rights, placing them into a status of lifelong dependency and subordination to the power of a male relative or a husband. The law may even explicitly allow keeping the wife or female family member prisoner.

In some countries including Sudan, the constitution nominally grants equal rights to all citizens, but massive inequalities written into personal and family status codes take that principle back again and consign women to the status of second-class citizenship. Even when the rights of women are formally granted in both constitution and legal codes, these rights are meaningless in actual daily life if the implementation does not follow. In some case, judges have enormous power in applying and interoperating the law.

In Sudan women rights in the family are curtailed by the interaction between norms of different nature coexisting in a context of legal pluralism (e.g. customary and statutory law) for instance while statutory law governing inherence does not exclude women from inheriting land, it is customary law (whereby women land rights are severely limited) that is mainly applied in some rural area of the country.

But fortunately for Sudan, some debate is currently occurring in the area, and we can note some hopeful signs. Three reasons stand out. First, a number of forward-looking countries are addressing these problems and violations and have taken the lead in crafting equitable law codes. Second, as part of the post-conflict nation-building process currently underway in Sudan, issues relating to law and the status of women should receive great attention. Third improved communication is bringing about a better global exchange of ideas and knowledge both within the Islamic countries and internationally. This will enable the Sudanese legal scholars to draw on a much broader and richer range of legal interoperations and build law codes that utilize the best element from all recognized schools of laws. The emerging civil society and non-governmental organizations in Sudan especially women NGOs can further support the process of positive development.

6. Fundamental issues in family and customary law reform for women in Sudan:
Before examining the proposed reforms in family and customary laws, I would like to stress and emphasis the following fundamental points and issues. The first point to stress is that legal reform in the field of family and customary law must be combined with a change in the policy framework for women empowerment in Sudan. It is important to note that successive Sudanese governments failed to provide a strong policy framework for the empowerment of Sudanese women or to properly recognizing gender issue including gender concerns in laws and legislations. Legal reforms must be combined with a change of policy in the field of education and health.

Secondly, in order for a legal reform process to be meaningful for women, legal reform needs to be holistic. Piecemeal legal reform is ineffective, e.g. Reforming the personal Muslim laws without reform in other laws and legislation is ineffective. Reform in family and customary laws necessities reform in other legislations, especially legislations that challenge gender relations and deal with the allocation of economic resources e.g. labour laws, and land laws.

The third point to stress is that for an effective legal reform for women both substantive and procedural issues must be addressed. Legal institutions including courts and access to them are of particular importance. Access of women to courts is necessary to enforce rights enshrined in the legislation. However it is important to note that access of women to courts in Sudan is severely limited, first women access to courts may be hindered by family and cultural attitudes, financial ability to pay court fees and advocate fees may be another obstacle. Another obstacle is that in Sudan as in many other countries women are underrepresented in the judiciary (women may be more encouraged to have their case before a female judge). Also, women access to courts in Sudan may be constrained by geographical inaccessibility, as courts in Sudan are mainly located in towns and transport cost may be high.

The fourth point to stress is that the legal reform for the interest of women needs to challenge discriminatory cultural attitudes, illiteracy, and lack of legal awareness, lack of resources to rights and difficulties in accessing courts, especially for rural women.

Also, it is important to challenge the de facto limitation of women rights due not to the conduct of another person) but due to the behaviour of women themselves, who internalize discriminatory cultural attitudes. Finally, requiring emphasis is that participation of women in the legal reform process is prerequisite for successful legal reform.

7. Overview of the legal status of Sudanese women:
The following are a critical summary of the main features of the legal status of the Sudanese women with a special focus of women status under the family Muslim laws and customary laws.

(i) Sources of law:
Historically speaking after 1898, three legal systems were applied in Sudan:
1. Common law applied to civil transactions
2. Sharia law governed personal matters of Muslims
3. Customary law govern other religious and cultural groups especially in the south

So since 1898, Sudan has been considered a common law country. Before 1983, the content of both Islamic law and customary law was primarily personal in nature that is they dealt with subjects such as marriage, inheritance and other matters of the family. The courts generally did not presume to determine matters that depend on the interpretation of Islamic texts. Matters affecting only Muslims, which fit within the personal jurisdiction of the Islamic division of the court, were typically referred to as sharia. As a result, it could be said that the overall civil and criminal jurisprudence of Sudan was secular in nature.

In September 1983, the military regime made an abrupt announcement declaring Islamization of all laws. A version of the September laws was enacted and applied. The September laws include penal code 1983, the Evidence Act 1983, the Criminal Procedure Act 1983, the Civil Procedure Act, the Judiciary Act1983, and the basic judgments Act 1983. As part of this September laws, Islamic punishments which include stoning, flogging amputation were introduced as part of the penal code. From a human rights point of view, the new laws infringe basic human rights principle and introduced a discriminatory measure into the Sudanese legal system, especially discrimination against women and by the adoption of September laws sharia became a core piece of the legal system in Sudan.

In the nineties, new versions of the law were enacted and applied, namely the Sudanese penal code 1991, the evidence act 1993, the personal Muslim law 1991, this plus other subsidiary law & regulations. Here I will try to indicate some of the main areas, which formulate the legal status of the Sudanese women.

(a) Constitution rights:
Historically speaking since independence in 1956, Sudan has witnessed five constitutions;
1. The Sudan constitution 1956
2. The transitional constitution of the Republic of Sudan, 1964
3. The permanent constitution of the Sudan, 1973
4. The transitional constitution 1985
5. The constitution of the Sudan, 1998
6. The national interim constitution 2005

In all the above-mentioned constitutions the principle of equality and non-discrimination were embodied. The permanent constitution of Sudan, 1973, in part 111, which dealt with rights and freedoms provided for equality between men and women. Article 38 of the constitution stipulated that the Sudanese have equal rights irrespectively of origin, locality, language, religion, and sex.

Article 56 provided for the state to ensure equality of opportunities of all Sudanese and prohibited any discrimination in opportunities or in conditions of pay on the ground of ethnical or geographical origin or sex. Article 53 obliged the state to accord care and attention to mothers and children and to ensure maternity leave for working women. Article 53 stipulated that education is a right for every citizen and the state should “endeavour to spread it and provide it free in all the stages. The Transitional Constitution of the Sudan, 1985, in Article 17 provided that all persons in the Republic of Sudan are equal before and under the law and shall enjoy equal rights and duties.

The Constitution of the Republic of Sudan, 1998 provided for the principle of equality between men and women in Article 21. In the current national interim constitution, there is an equality clause. All persons are equal before the law and have equal protection before the law without any type of discrimination including discrimination on the basis of sex (Article 32), this is buttressed by the provision of Article 28 on the right of all people to human dignity. Article 32 was, however, weakened by article 33 which read: “This bill of rights is the cornerstone of democracy, human rights and fundamental freedoms in Sudan; the state shall guarantee, respect, protect, promote and fulfil the rights in this bill; all rights enshrined in international human rights treaties, covenants and instruments ratified by the Republic of Sudan shall be considered as an integral part of this bill”. This seems to entail that conventions which the country has not ratified are not part of the bill of rights, thereby excluding the comprehensive set of rights provided for in the CEDAW. However, the constitution does not put on the state the responsibility to adopt or ratify the CEDAW, Sudan is a party to a number of important human rights treaties, including the ICCPR, the ICESCR, the CRC, the African charter of human and people rights. However, up to now, Sudan is not a party to the CEDAW, which is the major instrument for the protection of women’s human rights. Article 38 of the national interim constitution specifically provides for the equal rights of men and women to the enjoyment of all civil and political rights and all economic, social and cultural rights shall be ensured;” while the article provides for equal rights of men and women the wording of the article is very general and weak and would need to be developed in order to indicate the state’s responsibility to give recognition to the role played by women and take special actions or policies aiming at enforcing equality.

Despite the provision of equality and non-discrimination in the different Sudanese constitutions including the national interim constitution 2005, all the Sudanese constitutions contain a sting in their nails as far as women are concerned. This comes in the form of the statement that sharia and customs are the main sources of legislation (Article 5 of the national interim constitution) so women are subjected to the personal laws of their own communities and personal law is the area which affects women most significantly, touching on issues such as rights to property and inheritance, maintenance, divorce, child custody and polygamy. It is as if the constitution says to women (we grant you equality, but if religion says otherwise, we cannot interfere). Sudanese women have legal equality with men, however, in terms of religious and customary laws some are protective for women others are deeply affected by patriarchal ideologies and attitudinal practices that have effect in women status (Badri and Elbaggi). This is illustrated by the judicial president published in the Sudanese Law Journal reports 1980, case (Cass/109/1980), where the respondent instituted a first instance suit before the Khartoum divisional court against the appellant lawful wife, and was obedient to him and accordingly entitled to martial maintenance, which maintenance he refrained from giving as from 10 October 1967 after hearing the case the high court ruled the following:
1. A professional wife who refuses to accede to her husband’s demand to leave her work is not entitled to martial maintenance, even where the continuance in her work has been an express condition for her marriage contract, or where the husband has otherwise agreed to it; as it is a condition that contradicts the essence of the contract, to wit her presence and habitation in the matrimonial home. The husband accordingly can retreat from such condition or consent at any time.
2. It is incumbent upon the court to investigate and specify the date of the wife’s refusal to abide by the order of her to leave or stop her work, for upon the date of her “Nushoz” depend her entitlement or non-entitlement to maintenance. (Sudan Law Journal and Report, 1980)

The above case is a clear discrepancy between the constitution and other rules of law – including sharia. It is obvious here that mere existence of constitutional guarantees does not ensure their actual enjoyment either through practice or supportive legal rules and institutions, and that Sudanese women right to work is the secondary status with regard to other rules that govern other aspects of women lives, especially the family life.

In an attempt to respond to the above situation Dr Dina ShiekhEldin made the following statement “why do civil laws give women rights that they do not enjoy under Sharia? Why did the reform of sharia lag behind? One may attempt to answer by distinguishing between civil law, which is considered alien I origin and not of direct personal significance, and the rules of family law which are closely intimate and closely affect ones; own life. So lawmaker may find it easier or even politically rewarding to give women the right to vote or hold public office etc., then to give his wife right to divorce or to the monogamous union. The former set of rights are perceived as a direct affront to his own authority and right since most lawmakers are men” (4)

(b) Rights of women under the Muslim personal law Act 1991:
Thee is no controversy on the role of the family legislation and the role it plays in the development of women and its impact on the other rights of women especially rights of women outside home including the rights of women to work and participate in public life.

Family matters in Sudan are governed by different legal regimes, according to the belief of the individuals, since Sudan is a multi-ethnic, and multi-religious, multi-cultural country. Thus Muslims are governed by laws different from Christian family matters and likewise citizens with traditional beliefs are governed by customs and traditions of the tribe, personal status laws in Sudan govern matters that pertain to familial relations, including marriage, divorce, child custody and inheritance. These laws are based on the sharia, the divine law of Islam, and unlike other aspects of Sudanese law, the realm of personal status was influenced only marginally by European legal model. Thus, the rights and obligations outlined in Sudanese family law differ significantly from western conceptions.

Historically before 1991, there was no enacted family law in Sudan but the law was a set of memorandum and circulars issued by the grand “Gadi” the head of the then Sharia division of the judiciary over a period of time according to need on 24th July 1991 a personal Muslim law act was enacted. It includes 411 sections. The five main subjects of contemporary Sudanese family law are; marriage, divorce, maintenance, custody and inheritance. These will be outlined briefly.

A Muslim Sudanese women whatever her age or capacity has no right to conclude her marriage contract, section 25 of the acts states that the existence of the male guardian is one of the required conditions for the validity of marriage without which the marriage is considered to be void; according to the act, a guardian should be adult, male and Muslim. In sum, the Muslim personal law act has limited women rights for marriage, through the guardianship system and treats women as legal minors unable to take serious decisions. These perceptions embodied in the personal law definitely have negative markers in the place of work.

The personal Muslim law act provides for the matrimonial rights and duties in section 52 while during marriage contract the wife is required to obey her husband and to care for him by protecting herself, his property. In return, she has the rights to maintain and permission to visit her parents and relatives, good and fair treatment, equal treatment of women in a polygamous marriage, section 73 provides that a wife can be declared (nashiz) disobedient in the following cases:
1. Leaving the matrimonial house without legal justification
2. Working outside house without the husband permission & approval
3. Refusing to travel with the husband without legal justifications

If a woman commits any of the above-mentioned acts she will be declared disobedient or (nashiz) under section 92. According to the law, a disobedient woman (nashiz), is neither divorced nor married. She has no right of maintenance or custody of children. She can bring a legal suit regarding the issue of paying a sum of money or compensating the husband in order to get a divorce.

The matrimonial rights and duties as stated in the Sudanese Muslim personal law act 1991 are very discriminatory against women and her basic rights and freedom. Working outside home without the approval of the husband and refusing to travel with the husband are serious crimes according to the Act. So, a Sudanese Muslim woman has no right to work according to the act.

The 1991 MuslimPersonal Law Act does not prohibit polygamy. However, I article 51 of the act it is provided that the wife has the right to claim that the husbands maintain her adequately in a polygamous marriage. However, the law is silent on any restriction on the number of wives. The husband can marry up to four wives.

Under the MuslimPersonal Law Act, the husband solely decided on divorce. A wife can claim divorce if only her husband grants the right to her, otherwise, she must appeal to the court. In case the court may decide on the divorce. But even the court cannot issue such a decision or decree unless there is sufficient reason. So the act limits the rights of women to divorce. The perceptions embodied in this section about the inability of women to make decisions about her personal life affect attitudes about the inability of women to make decisions outside home especially in the working environment.

In the case of custody, a divorced woman is entitled to guardianship over her sons until age 7 and, if necessary, the courts may extend this period until puberty. Girls remain in the custody of their mothers until age 12 or if deemed appropriate by a judge, until marriage. (s.115). the father obtains legal custody of his children when they leave their mother’s guardianship. In addition, he oversees the children’s property until age 21, when minors acquire legal capacity. Both parents have full visitation rights, if the parents do not establish mutually accepted arrangements, a judge can order a schedule and location.

Sudanese courts rarely give custody to a mother who plans to leave the country or will not raise her children as Muslims. Furthermore, legal decisions emphasize the importance of having children reside near their father, and immigration authorities always require a father’s permission before his children can leave Sudan. Finally, if the mother is anon-Muslim, she will not be allowed custody of her children after 5 years of age if there is the slightest belief that she will “use her guardianship against Islam.” (s.114 (2)

Under 1991 act if he mother remarried, she will be disqualified front obtaining custody of the children. Under the applicable law, care would usually have passed to the maternal grandmother, but because the maternal grandmother could not care for the children a court order will provide that the paternal grandmother would look after the children, with regular contact to the mother, who had the right to visit the children at any time. In Sudan, a valid marriage contract legally entitles a wife to matrimonial maintenance. At the husband’s expense, she must be provided with food, clothing, housing, toilet necessities, medical needs and the number of servants warranted by her social position. Under the 1991 act, a father is also required to support his children. For a son, maintenance is mandatory until the child is capable of self-support; for a daughter until she is married. A wife is not required to provide any financial support to her family. (s.81(3). The 1991 act includes several provisions that bind men to their financial obligations and protect women’s rights to matrimonial maintenance. For example, a man with known property who defaults on his financial obligations will receive a court order to resume payments. If he is insolvent, has no known property or refuses to disclose his means, the judge can order an immediate divorce. (s.175) marriage will resume if the husband pays maintenance during the iddat period.

Regarding freedom of mobility, the Muslim personal law act 1991 provides that a woman would be declared (nashiz) if she works outside the home without the approval of her husband. Restrictions on the Sudanese women legal right to mobility and freedom of movement under the family law inhibit the rights of women to work and constrain their personal and professional development.

With regard to violence against women there is lack of data on the issue of different types of violence against women in Sudan, but generally speaking violence against women is widely practised in Sudan.

Inheritance is the most complex aspect of Muslim family law in Sudan. The classical Qur’anic rules of inheritance retain their authority in Sudanese law and, accordingly, Muslims are forbidden to disinherit their heirs. Sudanese law does not distinguish between movable and immovable property. Thus, distinguish property includes real assets as well as lease, patent and other intangible rights. The deceased’s estate is distributed in a specific order (s.345 (a). funeral costs are the first deduction, followed by the payment of outstanding debts (s.345 (b). if the estate’s balance is insufficient to cover all debts, creditors receive amounts proportionate to the individual sums owed by the deceased. Legacies, the third deduction form the estate, must not exceed one-third of the residual balance (345(c). finally, the remainder is divided among the heirs according to the Qur’anic model (345(d). if no such heirs exist, the estate reverts to the national treasury.

Several important points’ guide Islamic inheritance rules as applied in Sudan. A Muslim has the rights to make a will comprising up to one-third of his assets after funeral costs and outstanding debts are settled. The other two-thirds must be divided according to the Qur’anic model. To be valid, a will must be notarized. Inheritance laws apply to all Sudanese of all religions but heirs must profess the same religion as the deceased. A non-Muslim widow, therefore, cannot inherit from her Muslim husband except as a legatee in his will. (s.351). male heirs receive twice the share of females with the same relation to the deceased. This stipulation is based on the assumption that men must support their female relatives if the need arises. Furthermore, because a woman becomes part of her husband’s family, male control over a large portion of the estate ensures that its bulk will remain within the family of the deceased.

(c) Status of women under the customary laws:
Sudan has a dual legal system. There is a general system of statute law and customary laws that apply in personal law matters to some ethnic groups. The different ethnic communities of Sudan have different customary laws. Hence there is no single customary law that pervades the entire country and this notwithstanding many similarities in the various customary laws. These similarities are both in the content and the spirit of the law. Customary laws are largely written and un-codified, but since the colonial time native, customary courts were established in different parts of the country to enforce the customary law of each area. Sudan is a spacious country and discussing the issue of customary law in the entire country is beyond the scope of the paper. Here I will try to limit my discussion on family law aspects of customary law in South Sudan. South Sudanese customary law systems reflect the customs, practices and beliefs of the various tribes, which develop and use those laws. Notwithstanding a large number of tribes (over fifty), their disparate origins and practices, the bodies of law which each use have considerable similarities. An examination of the few, which have been reduced to writing, show that the respective bodies of law are broadly divided up into four functional areas, best illustrated in John Makec’s definitive account, the customary law of Dinka people of southern Sudan: family law, land law, law of obligation, procedures (6). Here are some brief accounts of the main principle in the customary family law:

First, levirate and wife inheritance: in many African societies, including southern Sudanese society, there exists a custom known as levirate under which women remain married to their dead husbands and can not marry again unless they obtain a divorce from their dead spouse. Children continue to be borne to them by the deceased husband’s surviving kinsmen but bear the name of and are considered in all respect progeny of the dead man. This custom result in a practice known as “wife inheritance “when a man dies his immediate kinsmen, brothers or parental uncle, are required to offer marriage to his widow ad to care for her and her children. Any future children that kinsman may have with the widow will bear the dead man’s name. Moreover, men who die before marrying are given wives, through “Ghost marriages”, again to the man’s brothers or parental uncles. Children born of these marriages also bear the dead man’s name, not the biological father’s.

By these and other customs, the living is linked inextricably with the dead and procreation gives permanence and continuity to the institution of the family. The living too strives to add to this continuity by ensuring they have children “to leave behind when they die’. These customs are also designed to strengthen and expand the family through the retention of property and material wealth within the male lineage. Additionally, they have an indirect effect of ‘providing a constant supply of manpower as an insurance against the insecurities inherent in their traditional way of life.’

Secondly, marriage as an alliance of families. The family is founded upon the institution of marriage. It is fundamental to any debate about the status of women and children in southern sundaes society, to recognize that marriage is seen as ‘not simply a union of a man and a woman; it is an alliance of two families or bodies of kin”. In this way, it (marriage) binds a large number of people together so the consequences, both good and bad, of the union, affect a large number of people. The cause and effect of this Is to strengthen social bonds which in turn are aimed at increasing community wealth and security and limiting the chances of conflict between communities.

Thirdly, there is the issue of bridewealth. The classic and arguably most misunderstood and contentious aspect of southern Sudanese customary marriage is the institution of “bridewealth”. It is also variously and erroneously called “dowry” or bride price”. The form of this bridewealth’ depends upon tribal custom. For the major peoples and tribes of southern Sudanese, the wealth takes the form of cattle and occasionally donkeys, sheep and goats. For minority tribes, usually non-pastoralists’ wealth takes the form of tools, weapons and beads. Recently and increasingly, money is being used as bridewealth and the likelihood is that the practise will become commonplace as cash returns to the southern Sudanese market place and returnees of the diaspora bring with them new social values and needs. This is an example of the effects of post-conflict change on custom and customary law.

There are a number of reasons given for the institution of bridewealth’. John Wuol Makec lays out the most cogent in his book as;
a) Compensation to the relatives of the girl or woman who have brought her up at expense to them and reimbursement of the expenses the family incurred at the marriage of her mother.
b) Consideration for the services the bride will render to her husband and relatives and children she will bear.
c) Bridewealth brings stability to the marriage since the parents and relatives acquire economic benefits through such payment. The Dinka go further to stabilize the relationship by requiring the bride’s family to conduct a reverse payment in kind called arueth.
d) The institution of bridewealth involves an element of prestige for the spouses as well as relatives.

It is important to understand how bridewealth is accumulated and its effect upon the wider family particularly amongst those tribes where cattle are the currency. It is rare that an individual, particularly a young man, will have the wealth to pay for the bride from his own resources and in fact, he will be actively discouraged from doing so. The wealth is donated by as many members of the family group as can and wishes to contribute. In this way, the couple is seen to have responsibilities to a wide number of people.

In the event of a failure of the marriage through divorce or desertion, all or part of the bridewealth may have to be rapid. Where cattle are the currency, this is a hugely costly and disruptive affair, frequently leading to damaging dispute and even conflict between and within family groups. It can be seen that any action, which threatens family cohesion, Is viewed with great disdain with the community and dealt with harshly under customary law.

For women, customary institutions have advantage and disadvantages. On the one hand, compared to courts, customary institutions may provide more easily accessible (both geographically and economically) and speeder form for rural women, and may enjoy greater social legitimacy I local communities. On the other hand, while their nature varies considerably from place to place, customary institutions are always gender-biased in compositing and orientation. In most places, they are constituted by male elders and apply male-biased interoperation of customary laws.

8. Proposed reforms in the area of personal Muslim act 1991:

The following proposals are not meant to be either prescriptive or an exhaustive record of all needed reforms in Muslim personal law, rather it is an attempt to identify some major areas for reform which I consider most significant for women personal advancement and their quality of life.

(i) Minimum marriage age:
In Sudan, young women and girls are in particular physical and psychological risk form early marriages. Setting a reasonable, not too low, minimum marriage age for both partners and especially for a female is important for a number of reasons. Reform in the current personal Muslim law act is very much needed in order to ensure that child marriage does not take place and specifically to ensure women sufficient access to education and o protect the women rights choose marriage partner and to give consent to the marriage. SomeMuslim countries have dealt with minimum marriage age. For example, in Jordan: a royal decree in 2001 rose the minimum marriage age from 16 for males and 15 for females to 18 for both genders.

(ii) Guardian permission for women and women consent:
Reform the Muslim personal law act is needed in order to secure the right of women to choose their own spouse and to ensure that they are neither obliged to accept arranged marriages or forced into marriages nor prevented from entering marriages they have chosen. The reform is also needed to into with grant women equal rights men, enabling women to be considered their own guardians and to be able to contract a marriage contract on their own. Again this is a natural extension of Hanafi fiqh. Thus Pakistan guarantees women the right to contract their own marriage without the consent of Wali. Jiba is illegal. Again, Algeria forbids Wali to force marriage (article 13) or give a woman in marriage without her consent. He also may not prevent her from marrying.

(iii) Polygamy:
Some reforms should be introduced to the family law act in order to ban the practice of polygamy or to restrict the practice of polygamy at least to reduce the detrimental effect on the wife, the children and the institution of the family. The most common conditions that countries that restrict polygamy place on the practice are the following:
a) The prior wife or wives must be informed of the man’s intention to marry an additional wife.
b) The prior wife or wives must consent
c) The husband must prove polygamous marriage to be ‘just and necessary’ (clearly mentioned grounds for this include a wife who is sterile, physically unfit or a conjugal relation, insane, or physically infirm or a wife who refuses sexual relation. The condition that a second marriage is ‘just and necessary’ could be a potent tool for regulation, but its ambiguity is a cause of concern because it could also be used on the slightest grounds. In many cases, the wife’s failure to produce a male heir may be a sufficient ground for granting permission for polygamy (Bangladesh, Pakistan)
d) The husband must guarantee to act in regard to all of his wives and children.

According to the laws that restrict the practice of polygamy, wives in polygamous marriage have to be treated equitably, and this includes provisions for separate living arrangements if there has been such an agreement during the marriage. In the event of a violation of these procedures, the wife or wives can take the husband to court.

Two Muslim countries have banned polygamy. In Tunisia, section 21 of the 1956 personal status code provides that polygamous marriage is irregular and can be nullified either by spouse, guardians, mothers or the legal department. The effect of the marriage is to consider never to have excited. Another country is Turkey; in 2001 turkey revised its 1926 civil code. The major outcome was the banning of polygamy.

On the other hand, polygamy is restricted in some countries. For example in Malaysia contracting polygamous marriage requires the permission of sharia court. A husband must justify in writing why the additional marriage is necessary and just and must provide details of his income and financial obligations, and he must convince the court that he can treat all the wives equally. Failure to follow the required procedures is liable to six month’s imprisonment. Again under the Pakistan MuslimFamily Law Ordinance (MFLO), polygamy is restricted and a man is given permission to marry again under specific circumstances and after following specific procedures.

(iv) Right to divorce:
Some reforms need to be introduced to the Muslim personal law act 1991 to be the unilateral right of divorce in order to ensure that men do not divorce their wives without cause, without even informing them, without specific reasons and attempt of mediation and without judicial oversight and to enable women as well as men, to obtain a divorce under comparable grounds and with the comparable procedure and to make financial accommodation for women in event of divorce.

One proposal is to ensure that amendment should be introduced to the law to require that all divorces be settled in a court of law. Under the marriage law of Indonesia, all divorces must go through court. A husband married under Muslim laws must provide the religious court with written notification of his intention to divorce; which may include his reason for wishing to do so. If the reason is in accord with one of the eight grounds available (specific grounds including illness, the husband being imprisoned for 5 years) to husbands and wives, both parties are called for a reconciliation meeting with counsellors. If reconciliation fails, the court will call the parties to witness the divorce. Also, Morocco’s reforms to the Mudawwawana2004 establish the right to divorce by mutual consent and placed unilateral divorce by the husband under strict judicial control. Some provisions should be made for financial rights and settlement. In Tunisia, the court determines the financial compensation the parties owe each other in the event of a divorce. Courts interpret this to mean if a woman is wrongfully divorced, she may be awarded Mata ’a in the form of a lump sum, a property transfer, or monthly instalments. The amount may be determined the standard of living to which the wife is accustomed to.

(V) Disobedience, female employment and right to work:
Over the last decades’ employment of women in Sudan has risen significantly. Yet despite this, the current family law restricts women rights to work. The concept of obedience on the part of the wives is often used by husbands to limit women ability to find work outside the home, and the husband owes the wife maintenance to be obedient to him.

Reform is needed in order to abolish provided for the concept of disobedience provided for in the law and specifically to equal access of men and women to employment opportunities and to protect the dignity of women in the family institution. Morocco’s reforms to the Maudawwawana 2004 eliminated the archaic concept of obedience in marriage. Husbands cannot prevent their wives from receiving education or employment.

(Vi) Some proposed strategies for reforms in the area of customary laws:
From the above review, it is clear that there are huge inequalities in respect of women status and should be addressed. Customary law has its own unique nature and change, and reform in the field of customary law must come at a scope and space that society can adapt without serious internal conflicts at the community and family level. The basic premise is that ‘change must come from within’. It is difficult to come with concrete proposals for reform in the customary laws but some strategies may include:
a) Intensive campaign to initiate a dialogue about the issue aimed at particular stakeholders; chiefs, community leaders, women, local government officials;
b) Awareness of the issue of an adverse effect of customary rules on women;
c) Involvement of women in the discussion of customary law issue;
d) Harmonization between statutory law and customary laws;
e) To outlaw customary law which have obvious harm on women physical health or wellbeing.

9. Conclusion and recommendations:
Legal reform is primary importance in creating a democratic and lawful society in Sudan and to contribute to long-standing, structural conflict prevention by removing and reducing the major source of conflict and enhance gender equality especially promoting the role and participation of women. The Muslim personal law act 1991 and the customary laws as applied in Sudan have systematically undermined women’s position in marriage by creating unfair conditions regarding men and disadvantage women.

Legal reform is a process and cannot be done overnight. It is important that women groups and the general public do not have unrealistic high expectations of what can be achieved. The following are some recommendations;
a) The challenge before us now is how to create, set and form a legal reform review committee to identify precisely the nature of deficiencies in the legal system and legislations and to formulate specific, well-grounded proposals for improvement and reform in all different fields including family and customary laws and to recommend methods for reform in this area.
b) Legal reform especially for women requires political will by both political elites and legal bureaucracies, and sufficient public pressure to make and enforce actual change. Where political will for reform is promising but still relatively weak the advocates for reform will need to pursue constituency and coalition-building strategies. This major’s responsibility for Sudanese women organizations and advocacy groups.
c) Constitution of women and women’s groups in drafting new family laws and customary laws based on the principles of justice and equality is of high importance.
d) It is important to establish a parliamentary committee to hold public hearings throughout the country so that the voices of ordinary citizens can be heard and reflected in a law that governs their personal lives.
e) Reforms in the field of women rights especially family laws necessities the need to respect universal human rights, especially provisions on rights of women in marriage and family, and to explore alternative interpretations of the Islamic law that uphold gender equality and universal human rights.
f) The argument that Islamic laws cannot be changed does not appear to be based on sound logic. A number of Muslims majority countries like Morocco, Tunisia, Syria, Turkey and Iran took up measures to prohibit polygamy and to improve women’s status in the family which shows that there is enough scope for the transformation of Muslim personal law.
g) Legal reform in the family Muslim law has to find a way to deal with the huge challenges and resistance for such change, especially Muslim groups who consider the personal law to be an essential part of their religion and stand therefore for status quo. They argue that no one is competent to change or amend the explicit provisions of the Quran, which is divine.
h) There is a huge need to encourage and support research and studies in the area of customary laws and Muslim personal laws especially which impact on women lives and gender equality.
i) Provisions for women equality in the national interim constitution and comprehensive peace agreement need to be respected and implemented.

* The author is a human and gender specialist

Bibliography
1. Nader, L& Todd, H.F.Jr. (1978). The Disputing Process Law In Ten Societies, New York, Columbia University Press.
2. Mill, J.S.(1971) On Liberty, Representative Government, The Subjection Of Women: Three Essays by John Stuart Mill, London: Oxford University Press.
3. Margaret, Schuler &Sakunlala–Rajasingham, ‘Legal Literacy, A Tool For Women’s Empowerment’ (1992) in Legal Literacy, A Tool For Women’s Empowerment, New York, USA.
4. Sheikh El-Din, Dina (1990). ‘Legal Status Of Muslim Women in Sudan,’ Journal of East African Research and Development, 1990
5. Sudanese Personal Muslim Act 1991
6. Wuol Makec, John. The Customary Law Of The Dinka People of Sudan. Afroworld Publishing Co. 1988



The views expressed in the 'Comment and Analysis' section are solely the opinions of the writers. The veracity of any claims made are the responsibility of the author not Sudan Tribune.

If you want to submit an opinion piece or an analysis please email it to comment@sudantribune.com

Sudan Tribune reserves the right to edit articles before publication. Please include your full name, relevant personal information and political affiliations.
Comments on the Sudan Tribune website must abide by the following rules. Contravention of these rules will lead to the user losing their Sudan Tribune account with immediate effect.

- No inciting violence
- No inappropriate or offensive language
- No racism, tribalism or sectarianism
- No inappropriate or derogatory remarks
- No deviation from the topic of the article
- No advertising, spamming or links
- No incomprehensible comments

Due to the unprecedented amount of racist and offensive language on the site, Sudan Tribune tries to vet all comments on the site.

There is now also a limit of 400 words per comment. If you want to express yourself in more detail than this allows, please e-mail your comment as an article to comment@sudantribune.com

Kind regards,

The Sudan Tribune editorial team.


The following ads are provided by Google. SudanTribune has no authority on it.



Sudan Tribune

Promote your Page too

Latest Comments & Analysis


Invisible female victims of armed militia attacks in Darfur 2021-01-08 15:19:56 By SIHA Network* On October 19th 2020, an armed group burned down the IDP camps of Oum Assal, Babanousa and Om Zegerat in Gerida locality. Gerida locality is composed of a number of villages (...)

Account Inventory for December Revolution in Sudan 2020-12-19 20:34:35 By Mahmoud A. Suleiman This article comes against the backdrop of Sudan's Third Revolution as some like to call it, two years later during which Much has been achieved but risks still remain, (...)

SPLM pinning tales of lies to cover up failures! 2020-12-17 20:03:56 by: Khor Dol Kai It should be very clear, by now, that no single progress will be made or ever made-whether in short or long run-to reverse the damages already done and the seeds of division (...)


MORE






Latest Press Releases


Sudan: Performing arts is not a crime, assaulting women and artists is! 2020-09-20 08:54:28 The Strategic Initiative for Women in the Horn of Africa (SIHA) Sudan is still struggling with militant Islamist ideology KHARTOUM: Central Khartoum Primary Court issued a verdict against five (...)

Civil Society Statement in Response to The Law of Various Amendments 2020-08-14 07:11:00 A Collaborative Civil Society Statement in Response to The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom) – Exposing ‘a wolf in sheep’s clothing’ Sudanese women (...)

Remarks by SRF leaders at the Friend of Sudan meeting on peace 2020-08-13 07:58:58 Chairman of the Friends of Sudan Conference, Your Excellency, Minister of Foreign Affairs of the Kingdom of Saudi Arabia, The Prime Minister of Sudan and the participating team from the (...)


MORE

Copyright © 2003-2021 SudanTribune - All rights reserved.