Legal system of Sudan

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The legal system of Sudan has evolved over time. The legacy of British colonial rule has had a significant impact even after independence. Most of the lawyers and judges were British trained and initially tended to rely on judicial precedent. Soon after independence, however, pressure began to build to change the legal system. By the time Jaafar Nimeiry seized power in 1969, a commission had been working on recommendations for a new system, but he dissolved it and formed another commission dominated by 12 Egyptian jurists. Based on recommendations received from them, Sudan adopted a new civil code that looked much like the Egyptian civil code of 1949. The new system was controversial because it disregarded existing laws and customs and introduced many new legal terms and concepts from Egyptian law without source material to interpret the codes. In 1973 the government repealed these codes and returned the legal system to its pre-1970 common-law status. In 1977 Nimeiry agreed to consider a Muslim Brotherhood demand that the system be based on Islam. He appointed al-Turabi as chairman of a committee to draft new Islamic laws. Nimeiry accepted few of the proposals from this committee. He then established a small, new group in 1983 that developed a “cut-and-paste” version of sharia laws based on practice in other countries. In September 1983, Nimeiry issued several decrees, known as the September Laws, which made sharia the law of the land.^[1]

Secular Muslims and the predominantly non-Muslim Southerners strongly opposed the imposition of Islamic law. Even before issuance of the September Laws, however, John Garang, the leader of the Sudan People's Liberation Movement (SPLM) had defected from the government and begun to organize Southern opposition to overthrow Nimeiry. The enforcement of hudud punishment, which included flogging and amputation of hands and feet, aroused widespread opposition to the Nimeiry government. Following Nimeiry's overthrow in 1985, the Swar al-Dahab government suspended the harshest hudud penalties. Both Swar al-Dahab and his democratically elected successor, Sadiq al-Mahdi, supported sharia but criticized its method of implementation by Nimeiry. By early 1989, a reluctant al-Mahdi expressed willingness to consider abrogation of the controversial sharia laws. This caused his coalition partner, al-Turabi and the National Islamic Front (NIF), to resign from the government in protest. Al-Mahdi announced that the cabinet would consider draft legislation repealing the September Laws on July 1, 1989, and would meet with SPLM leaders to resolve peacefully an end to the civil war. The military coup of June 1989 led by al-Bashir occurred only 24 hours before the al-Mahdi government was scheduled to vote on rescinding the September Laws.^[1]

The al-Bashir government initially retained the official freeze on implementation of the sharia laws but unofficially advised judges to apply them in preference to secular codes. Al-Bashir asked al-Turabi to prepare new laws based on Islamic principles. In January 1991, al-Bashir decreed that Islamic law would be applied in courts throughout the North, but not in the South. The 1998 constitution specified that the source of law for Sudan was sharia and national consent through voting in addition to the constitution and custom. In practice, Sudan treated Islam as the state religion and expected it to inspire the country's laws, institutions, and policies in the North. The Interim National Constitution was less emphatic on this point and stated explicitly that Sudan was a “multireligious country” where diversity meant coexistence. Nevertheless, the government continued to place restrictions on non-Muslims, non-Arab Muslims, and Muslims from tribes or sects not affiliated with the National Congress Party (NCP).^[1]

The CPA significantly altered the judicial structure in the North and created a new legal system for South Sudan, the states, and the national capital of Khartoum. The Interim National Constitution established an independent national judicial authority headed by a chief justice. The chief justice served as the president of the National Supreme Court and was answerable to the president of the republic. Structures of the national judiciary included the National Supreme Court, national courts of appeal, and other national courts. Nevertheless, the judiciary remained largely subservient to the president or the security forces, particularly in cases of crimes against the state.^[1]