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An Overview of the Sudanese Legal System and Legal Research

 

by Sharanjeet Parmar

 

Sharanjeet Parmar holds B.A. (Ottawa), LL.B. (Dalhousie), and LL.M (N.Y.U.) degrees. She is currently a Clinical Advocacy Fellow with the Human Rights Clinic, Human Rights Program, Harvard Law School. Ms. Parmar lived and worked in Africa for almost three years, primarily as a Trial Attorney for the prosecution at the Special Court for Sierra Leone. She also worked as a Rule of Law Manager for the International Rescue Committee in South Sudan. She has been a member of the Law Society of Upper Canada since 2001

 

Published January 2007

 

Table of Contents

Introduction - The cultural and legal pluralism of Sudan

A. Governance history and political landscape

The Comprehensive Peace Agreement (CPA)

Current conflicts - Darfur and the East

B. The Judicial System

The Supreme Court

The Constitutional Court

Military Intelligence/Security Courts

Islamic hadd cases

Popular/Tribal Courts

Southern Sudan

C. Customary Law

The Operation of customary law

D. Formal Laws

Criminal Law

Civil Matters

Muslim Personal Law Act 1991

Gender Issues

Child rights and duties

Juvenile Justice

Child Act 2004

Public Laws

Khartoum Public Order Act 1998

Labour Act 1997

Commercial Laws

Banking Laws

Investment Encouragement Act, 1999 Amended (2003)

National Petroleum Commission (NPC)

The Telecommunication Act 2001

Copyright and Neighbouring Rights Protection Act 1996

E. Legislation

F. Electronic Research Sources

G. Legal Literature

 

Introduction - The cultural and legal pluralism of Sudan

As Africa's largest country, Sudan includes many religious, ethnic and socio-economic groups. Prevailing issues of access to resources, economic opportunity and power against the background of such diversity has unfortunately resulted in some of Africa's longest-running conflicts since the country became independent in 1956. These conflicts have included those between Muslim-Christian, Arab-African and nomad-farmer groups, e.g. The rule of law is but one of many casualties resulting from the permanent presence of conflict (or threat thereof) in the South, West and Eastern regions. Not surprisingly, historical, social and political factors have largely shaped Sudanese laws in terms of substance and application, including colonial legacies, a historically Arab-dominated central government and the presence of an intricate network of informal laws that are based upon religious, ethnic and/or tribal communities. The complexity of these factors renders it extremely difficult to distil a comprehensive overview of formal and informal Sudanese laws that are currently in operation. Rather, this article will attempt to present an elementary overview of principle Sudanese laws, as well as some contextual background as to the nature of the informal justice mechanisms that operate outside the formal legal mechanisms.

 

This article will provide a brief overview of Sudan's political history and current political landscape; the Judicial System, including courts system under common and customary law; the operation of customary laws, and finally Sudan's formal laws. The overview of formal laws includes criminal (Criminal Act, 1991; Criminal Procedure Act, 1991); civil (Muslim Law Act 1991); commercial (Banking; Investment Encouragement; National Petroleum Commission, Telecommunications, Copyright); public laws (Khartoum Public Order Act; Labour Act, 1997); as well as gender issues, and child rights and duties (Child Act 2004). A final section is included that lists important domestic legislation; as well as primary treaty law to which Sudan is a signatory. A list of useful electronically available resources is also provided, in particular, links to extensive reporting on human rights practices in Sudan.

 

A. Governance history and current political landscape

Prior to independence in 1956, Sudan was jointly administered by Anglo-Egyptian forces following their capture of Khartoum in 1898. The north and southern regions of Sudan were administered separately until 1947, after which political power was placed within the hands of a northern elite that was composed largely of Arab ethnicity. Following independence, the North and South have been in almost constant conflict; the first civil war lasting from 1956 - 1972 and the second from 1983 to 2005. At present, "Sudan has an authoritarian government in which all effective political power lies in the hands of President Omar Hassan al Bashir and the National Congress (NC) Party inner circle, who have been in power since a 1989 military coup (that was) instigated and supported by the fundamentalist National Islamic Front (NIF). . In 2000, Bashir was re-elected, and his NC/NIF political party won 340 out of 360 seats in the Parliament in deeply flawed elections boycotted by all major opposition parties. NC/NIF members and supporters continued to hold key positions in the Government, security forces, judiciary, academic institutions, trade unions, professional associations, and the media."[1]

 

According to International Crisis Group, Sudan is divided by religion (70 per cent Muslim, 25 per cent animist, 5 per cent Christian), ethnicity (between African and Arab origin Sudanese), tribe and economic activity (between nomadic and sedentary cultures).[2] The principal conflict between the northern and southern parts of Sudan was borne out during 1956 - 72 and 1983 - 2005 and has cost an estimated 2 million lives, while displacing over 4 million people. The origins of what developed into a national conflict between the North and South have been said to lie in Sudan's colonial past; however, economic and political disparities, the discovery of oil-rich areas in the South, as well as regional power politics have also fuelled the conflict.

 

Not surprisingly, the early mixture of British and Arab rule, combined with more recent assertions of Islamisation by political forces in Khartoum[3], have had significant implications upon the composition of Sudanese laws. Indeed, the religious composition of the warring groups has also influenced the nature of laws administered in areas controlled by the Muslim-dominated central government and the Christian rebel movement in the South.

The Comprehensive Peace Agreement (CPA)

A cease-fire was eventually declared between the Sudanese government and the Sudan People's Liberation Movement / Army (SPLM/A) in July 2002. Peace talks were carried on through 2003, though fighting also continued on both sides; eventually in 2005, a peace agreement between the Government of Sudan and the SPLM/A was reached. Highlights of the Comprehensive Peace Agreement include a Power Sharing Agreement, a Wealth Sharing Agreement and Security Protocol; and special power and wealth sharing agreements for the areas of Abyei, Southern Kordorfon and Blue Nile (also referred to as the Three Areas), which individually possess specific factors that precipitated and prolonged the conflict - including and especially resource wealth).

 

Despite the death of SPLM leader and Vice-President elect John Garang in August 2005, the peace process continued with the ratification of a new constitution in October 2005, the swearing-in of a new government (that divided executive posts between the ruling parties of the North and South) and the functioning of an autonomous Southern legislature and government. Much of Sudan's laws will undergo amendment following the new Constitution, which seek to balance interests and power between the South Sudanese and Central Governments.

 

The UN has deployed a multilateral peacekeeping observer mission to the South that is mandated to monitor the implementation of the agreement and support the building of national capacity until a referendum on the sovereignty of the south can be held in 2011. Despite all of this progress, tensions between the Government of National Unity (GONU), i.e. the National Congress, and the Sudan People's Liberation Movement (SPLM) remain live. The SPLM has accused the GONU of slowing down implementation of the Comprehensive Peace Agreement (CPA). The issues in dispute included the designated commissions by agreement, Abyei borders, withdrawal of the government army beyond the Independence border of January 1956, the volume and revenue of oil production, and the democratic transition, which had been extremely sluggish.[4]

Current conflicts - Darfur and the East

The peace between the North and the South remains fragile, while other conflicts or threats thereof loom elsewhere in Sudan, notably in Darfur and Eastern Sudan. The central government continues to wage war in Darfur, since the taking-up of arms by the Sudan Liberation Army/Movement (SLA) and Justice and Equality Movement (JEM) rebels (predominantly African sedentary tribes of the Fur, Zaghawa and Massaleit) in February 2003. The central government responded by arming Arab "Janjaweed" militia, in addition to deploying the Sudanese army. Some estimate that Darfur conflict has displaced almost 2 million and taken anywhere from 200,000 - 400,000 lives. With much of the civilian population permanently displaced, the rule of law appears virtually non-existent. Humanitarian agencies such as International Rescue Committee together with the United Nations Development Fund have undertaken efforts to build "Justice Confidence Centres" in displacement camps, which aim to create community spaces for resolving disputes as well as information on human rights and local laws. To the East, a third conflict may escalate between the Government and the opposing "Eastern Front", who are in negotiations towards a peace agreement. The Islamist Ruling Party (known as the NCP - National Congress Party) is alleged to maintain dominance over the region by measures not unknown in Darfur - undercutting support for the opposition through patronage, divide-and-rule policies, and the creation of tribal militias.[5] International Crisis Group reports that some fear that humanitarian levels in the East have dropped lower than those in Darfur. Both situations bode poorly for rule of law and access to justice for local populations.

 

B. The Judicial System

Arbiters of disputes and administrators of formal and informal laws come in various forms throughout Sudan, depending on ethnic, religious and political factors. Judicial courts are provided for under both statute and customary law while informal community practices also rely upon local chiefs, known as Sultans, to resolve disputes between community members. Indeed, "(t)he judiciary relies greatly on popular justice for solving disputes through methods of conciliation and the application of tradition."[6] Customary laws generally consist of non-state dispute resolution systems that are usually based upon local customary, traditional or tribal systems of justice. Given Sudan's ethnic and religious plurality, customary laws and practice are diverse, differing from tribe-to-tribe and community-to-community. Case reporting of decisions by the formal courts is published in the Sudan Law Journal and Reports, whilst laws are published in the Sudan Gazette.

 

According to Y. Sherif, Northern "judiciary structures are more developed but the independence of the judiciary seems to have been compromised - as evidenced by the arbitrary dismissal of qualified judges, attorneys-general and law officers. Existing legislation fails to guarantee the full spectrum of human rights and fundamental freedoms, while military decrees and emergency laws undermine those rights currently protected by statutory law."[7] Indeed, thought the "Constitution provides for an independent judiciary; however, the judiciary (is) largely subservient to the President or the security forces, particularly in cases of crimes against the state."[8]

 

Questions of independence reach beyond the judiciary to practising lawyers. Lawyers throughout Sudan must belong to the National Bar Association, which is based in Khartoum. Outside of Khartoum, the Association is viewed as being overly urban in both composition and its substantive focus and therefore removed from the daily needs and challenges outside of the capital. However, it is unfair to characterize an entire bar; indeed, the Association has endured its own difficulties even within Khartoum. In 1992, "the government amended the Advocate Act of 1983 in such a drastic way as to totally abrogate the Association's independence. For the first time in its history, the SBA has been reduced to another trades union. the Association has now been registered with the Registrar of Trades Union."[9] According to the U.S. Department of State, members of the legal profession are harassed by the Government viewed as political opponents; some have been detained, including the Director of the Darfur Lawyers Association, Mohamed Adomo, who was later released.[10]

The Supreme Court

The Supreme Court is composed of seventy judges and operates through panels that are composed of three judges, which are presided over by the most senior of the three. Decisions are reached by a majority of opinion and are subject to revision only if and when the chief justice deems that an infringement of (shari'a laws) has taken place. In this case the Chief Justice convenes a five member panel, the majority of whom must not have participated in reaching the disputed decision in order to receive the matter. The court disposes of appeals against the judgments of the courts of appeal in civil, criminal and personal matter cases."[11] The Court also has "preliminary jurisdiction of a single judge to consider appeals against the administrative decision of the president of the republic of the governors and of the federal and state ministers. Appeals from the decision of this single judge's court are dealt with by panel of three Supreme Court judges."[12] Four circuits of the Supreme Court operate outside the capital in the western, central and eastern states.[13]

The Constitutional Court

In addition to the Supreme Court, the Sudanese judicial system includes four types of courts: regular courts, which primarily consider criminal and civil matters; special mixed security courts, military courts and tribal courts, which apply customary law to resolve disputes over land and water rights and family matters. The regular courts include Court of Appeal, the Public Courts[14] and District Courts[15] (courts of first instance).[16] The Constitutional Court considers:

a.      Interpretation of the constitution when requested to do so by the President of the Republic, the National Assembly, half of the Governors of the states or half of the State Assemblies.

  1. Suits from any aggrieved person to protect the freedoms and rights guaranteed by the Constitution after exhausting the executive and administrative remedies available.
  2. Suits concerning jurisdictional conflicts between national and federal bodies.
  3. Criminal procedures against the President of the Republic and the Governors under the Constitution or the laws.
  4. Objections concerning the acts of the President of the Republic, the Council of Ministers or a National or Federal Minister if the objection concerns any infringement of the national constitutional system or the constitutional inviolable freedoms or rights.
  5. Any other matters determined to be within the competence of the Constitutional Court.[17]

During a campaign of Islamisation in 1983, the central government reunified the civil and shari'a courts, which had earlier been made separate during colonialism. Subsequent constitutional reform did not alter the ability of formal courts to consider shari'a law.

Military intelligence/security cases

"In addition to the regular police and the Sudan People's Armed Forces, the Government maintain(s) an external security force, an internal security force, a militia known as the Popular Defense Forces (PDF), and a number of police forces. The security forces (are) under the effective control of the Government. Members of the security forces (commit) numerous, serious human rights abuses."[18] Arrests and detention can occur extra-legally or under emergency powers. For example, individuals associated with armed forces rebelling against the government can be accused of crimes against the state (Chapter 5, Criminal Act 1991). Created under the Special Courts Act, security courts constituted of three civilian judges convene to hear such cases. Those in military intelligence custody who later find their case before such courts are not permitted representation by a lawyer, though they may be accompanied by a 'friend.' Accordingly, lawyers have attended security cases as such, though are not permitted to address the court. Overall, due process is not ensured in military or civilian courts.[19] Sentences are usually severe and implemented immediately; death sentences are referred to the Chief Justice and the Head of State.[20] It has been reported that children used by armed groups as spies have later been tortured to death in Military Intelligence custody.

Islamic hadd cases

Individuals may also be convicted of crimes defined in Islamic shari'a law, which can include Islamic hadd punishments of amputation and death. It has been noted that girls alleging rape can in turn be themselves accused of adultery in such courts. Charging women with adultery is not unique to North Sudan. Indeed, in a prison in the town of Wau, South Sudan, many women were in detention under the charge of adultery - either for having relations with a man before marriage and/or refusing marriage arranged by her family.[21]

Popular or tribal courts

Popular courts are staffed by respected community elders and enforce customary law that is not considered to be inconsistent with the law or public policy. Generally, judges are citizens of good conduct who are "well known, well reputed and reasonably well off in rural areas"; membership includes tribal chiefs, Omdas, sheikhs, and Nazirs.[22] Due process in customary courts does not appear to be clearly defined, rendering them vulnerable to arbitrary application of the laws. Cases in customary courts can be referred to statutory courts; such courts also have powers of detention.

Southern Sudan

The parallel operation of formal laws with informal laws is particularly strong in Southern Sudan. During the civil war, "units of the armed forces and militias ruled by force of arms, and in many cases the accused were summarily tried and punished, especially for offences against public order."[23] Within the former SPLM controlled areas, SPLM de facto laws and decrees were undermined by a severe lack of judicial facilities and lack of trained personnel in the judiciary and law enforcement. These institutional short-comings remain today and pose serious challenges to justice reform and access. For example, in the Southern Kordofan state, there are less than 30 well-qualified judges and about 50 lawyers. Here, shari'a- based laws remained applicable during the war in those areas formerly-held by the Government of Sudan, while a common law system was administered in former SPLM/A rebel-controlled areas. Indeed, under the terms of the recent peace agreement for Sudan, customary law will dominate in the South Sudan. It is presently unclear how the customary law system will in the future formally interact with the development of a formal legal system in the South, as well as with the justice system in the north of the country. Recent outcry over the continued application of strict Islamic shari'a Law in Southern Courts that remain adjudicated by Northern judges suggests that law reforms required under the CPA are not being to the liking of Southerners.[24]

 

"The SPLM has a judicial system of county magistrates, county judges, regional judges, and a court of appeals."[25] A High Court is located in each Southern State whilst the Supreme Court is situated in Rumbek. Southern States will generally continue to have the two systems of formal and customary law operating until the new Government undertakes to merge them. The formal courts are located mainly in towns; their role is not well understood by the public. Public access to the courts has been criticized by outside observers as practically non-existent due to high user charges, cumbersome formal procedures and their distance from the people, especially poor rural communities. Limited operational budgets prevent courts to hear cases in rural areas or for judges/legal administration officers to monitor and guide traditional courts on points of law and procedures.

 

C. Customary Law

Justice John Wuol Makec writes in "Legal Aid and its Problems in Sudan: Proposed Supplementary Mechanisms":

One of the main objectives of customary law is the establishment of peace and harmony between the parties and society as a whole through compromise, conciliation, and compensation or restoration of social imbalance created by the commission of wrong or criminal acts.[26]

 

The largely dualistic legal structure in Sudan results in several stages being passed before a matter reaches any formal justice institution (such as the police or statutory Courts) - if at all. Indeed, there exists a strong customary law network through which personal problems are dealt with.

The operation of customary law

Personal matters are generally governed by the religious laws of the particular individuals concerned: Muslims are usually governed by local interpretations of shari'a law, whilst Christians are governed by local understandings of sectarian laws. If an individual is of no formal religion, then personal issues are governed by the customary laws of his/her particular tribe. For example, the tribal laws of the Dinkas in the South are in fact codified and held by the local Mullah. Other local tribes rely upon an oral tradition that is according to custom.

 

For family disputes, often the father or the head of the extended family will resolve matters within the family unit. Beyond the family, people who are party to disputes, whether they are husband and wife or neighbours, will go to the local Sultan to resolve the issue. The Sultan applies local customary laws and tribal practices in reaching a resolution of the issues presented before him. In cases of dissatisfaction with his decision, either party will apply to the District Court Judge and appeal. However, the decision of the Sultan is usually respected by the District Court Judge in deference to his sound knowledge and practice of local customary law.

 

Mediating disputes is generally the means by which conflicts are handled within the community. Fully outlining the myriad of local practices requires deep knowledge and access to individual communities, which is beyond the scope of this introduction. Given the dire need for capacity-building of local police, the office of the attorney general and judiciary throughout Sudan - especially in post-conflict areas (and outside the capital), the dominance of the community/customary network holds much potential for justice advocacy. Naturally, customary law is weak in terms of human rights protections for women and children; nonetheless, individual interventions by local justice actors can serve to slowly improve and strengthen customary laws.

 

D. Formal Laws

Sudan's formal legal system is grounded in British common law and Islamic law.[27] Sources of law are Islamic law, constitutional law, legislation, judicial precedent, and custom. In family law, judicial circulars (manshurat) issued by the Qadi al-Quda (first issued in 1916) served to institute reforms or instruct the application of particular interpretations.

Criminal Law

Sudanese criminal law includes elements from British colonial penal law, Egyptian civil code and more recently, what are known as the "September Laws," otherwise referred to as hudud (sing., hadd) or penalty prescribed by Islamic law.[28] The applicable criminal laws include: Criminal Act, 1991 and Criminal Procedure Act, 1991 (CPA); as well as shari'a and local custom. The following is an overview of general due process provisions[29]:

  • Arrests under the CPA: An arrest may be undertaken in two modes: arrest by prosecution attorney or magistrate's warrant (s. 67) or arrest by a policeman or "People's administrator" (that is, chairman of a state-sponsored local committee for order) (s. 68). In Darfur, a "People's administrator" is usually a tribal leader, appointed by the Government under the 1991 Native Administration Act. People can be arrested without warrant if found in suspicious circumstances, or if found with property suspected as stolen, or for not giving their name and address.
  • Recording arrest: Police must record arrests made without a warrant in a register of arrests (s. 75.2, s. 82), and inform the prosecution attorney or magistrate (s. 77).
  • Interrogation: Investigations are carried out by the General Crimes Police (s. 39) and should be recorded in writing (s. 41) and include statements of the accused and decisions taken regarding charges (s. 42). Suspects may undergo medical examination for purposes of gaining evidence, not for protection (s. 49). If an accused confesses, a magistrate should immediately assess the voluntariness of confession and record his judgement (s. 60). Lawyers are not present at interrogation.
  • Powers of detention: The CPA allows police to detain people for no more than 24 hours for inquiry; the prosecution attorney can renew detention for no more than 3 days for inquiry; the magistrate can renew detention weekly, for up to two weeks; the superior magistrate can renew detention weekly, for up to six months (s. 79). CPA allows for police supervision or restriction of movement of accused persons (ss. 84, 85).
  • Records of detention: Magistrates need to record reasons for arrests in the Case Diary (mahdar al-taharri) (s. 79), and detainees can appeal detention (s. 179). Prosecution attorneys are required to inspect all people in custody daily (s. 81).
  • Powers of detention in the CPA: Only a court can order detention for trial (s. 80). Courts can order detention for up to one month, renewable weekly, and superior magistrates can order detention for up to six months, renewable monthly.
  • Bail: The CPA allows for bail against different guarantees (s. 105) for offences not involving compensation (diyya) or Islamic hadd punishments (ss. 107, 108). Any reasons for not releasing persons accused of bailable offences must be recorded (s. 108).
  • Free legal representation: The CPA allows for free legal representation only for people facing the gravest charges (s. 135).
  • Language: The CPA gives a right to translation of trial proceedings, but not other proceedings (s. 137).
  • Sentencing: Sentencing may consist of physical punishment (such as lashings), compensation (for homicide or injury) and death. It is the trial judge's responsibility to explain the sentence and any appeal rights that are available to the convicted person and to other interested parties (CPA 171).

 

The amended Law of Criminal Procedure 1991 added additional powers to law-enforcement to investigate, arrest, interrogate or detain irrespective of magisterial investigation, as was lawfully required to guarantee the rights of persons in contact with the law.[30] Notwithstanding both of these acts, the National Security Act includes a provision authorizing solitary detention from nine months to a year, which has been alleged to be largely used to harass political opponents.[31] Against this legal backdrop, human rights organizations allege routine arbitrary detentions, extrajudicial killings and torture by central government agents.[32] Despite a Constitutional guarantee of fair and prompt trials, trials in "regular courts nominally (meet) international standards of legal protections. The accused normally have the right to an attorney, and the courts are required to provide free legal counsel for indigent defendants accused of crimes punishable by death or life imprisonment; however, there (are) reports that defendants frequently did not receive legal counsel and that counsel in some cases could only advise the defendant and not address the court."[33]

Civil Matters

Civil matters are formally governed by statute, but outside the capital are in practice resolved at through informal laws and long-standing community justice mechanisms. Disagreement over the outcome of such will lead the parties to then appeal to the formal justice system, though much discretion is generally accorded to the decision rendered by a local Sultan or popular court. Relevant formal laws include the Civil Transactions Act, the Family Code, 1991. Passed in 1991, the Family Code includes shari'a principles as well as interpretations of some manshurat, though the Supreme Court (Shari'a Circuit) is vested with the power to issue interpretations of Code. Hanafi fiqh is also established as a residual source of law.[34]

Muslim Personal Law Act

Excepts from Emory Law School Sudan Law Overview[35] - The Muslim Personal Law Act 1991 requires that both parties to a marriage be past the age of puberty and consent to the marriage. A male guardian marries adult women with their consent, although the qadi is empowered to act in this capacity if her guardian refuses his consent without justification. The guardian retains entitlement to seek dissolution on the grounds of lack of kifa'a of the husband, where kifa'a is defined in religion and morals. The wife is entitled to maintenance, assessed according to the circumstances of the husband; however, the wife loses the right to maintenance if she refuses to move to the marital home or leaves it without a shari'a justification. Right to maintenance may be lost if the wife works outside the house without the husband's consent, provided he is not being arbitrary in such.

 

Reforms standard to the region to the rules on talaq have been introduced. These reforms include the validity of talaq in terms of its number in word or sign; talaq in the form of an oath; and talaq intended to induce someone to do something. As a further reform to what is known as classical law, the wife must be informed of her husband's revocation of a revocable talaq during her 'idda period in order for the revocation to be valid. A judicial divorce may be sought by the wife on the following grounds: a husband's incurable physical or mental illness rendering it impossible for the wife to continue to live with him without harm; a husband's impotence not curable within one year; a husband's cruelty, or discord between the spouses; a husband's inability to pay maintenance. Finally, a divorce by 'ransom' may be instigated where a wife who is held disobedient by the court may waive her rights in return for a divorce; arbitrators must be appointed if the husband refuses to agree to such, and if the wife establishes that she suffers from remaining with him, a talaq will be ordered by the court.

 

After divorce, the wife is entitled to maintenance for the `idda period and to mut`a, which is assessed according to the means of her ex-husband - but only to a maximum of six months of maintenance. Maintenance will not be accorded in such a manner if the divorce was a judicial divorce by reason of the man's poverty and inability to pay maintenance, or for some physical reason arising in the wife, or unless the divorce was by khul.' A divorced mother is entitled to custody of her male children till they are 7 years old and females till they are 9. This period may be extended by the court if it can be proven to be in the interests of the wards, in which case, custody will extend until the sons reach puberty and the daughters consummate marriage. The father or other male guardian is to maintain scrutiny of all matters related to the raising of the children in the custody of their mother. Child support is the responsibility of the father until the daughter is married and the son is of an age when he is able to earn his own living.

Gender Issues

Women's community-based groups voice serious concerns with the prevalence of gender-based violence, which is considered to include: Early (forced) marriage of girls; Domestic violence; Rape; Female circumcision; Forced marriages of widows.[36] Additional prevailing gender issues include the right to own property; freedom of choice to enter into marriage; payment of dowry - bride wealth; wife inheritance; ghost marriages. Of note, the Convention on the Elimination of All Forms of Discrimination Against Women has not been signed and ratified by Sudan.[37]

Child Rights and Duties

While Sudan ratified the Convention on the Rights of the Child (CRC) without reservation, the prevalence of key child rights issues remain of concern, including child labour; choice of education; rights to own property; right to care and protection; and juvenile justice concerns. The Child Act 2004 prescribes laws for child welfare, juvenile justice issues (including children's rights during arrest and imprisonment), health, education, 'working child', and the broader subject of 'satisfying child cultural needs.' The legislation is due to be revised after the signing of the Interim Constitution and consequently, it is in force but not being implemented. As such, the act is seen more to serve as an advocacy tool.

Juvenile Justice

All children under seven are below the age of criminal responsibility. All those above 15 have reached the age of criminal responsibility. Children between seven and 15 are criminally responsible if they have reached puberty.[38] The Criminal Procedure Act 1991 (CPA) - which has few special protections for children in arrest and detention - is the law under which children are arrested and tried, and together with other legislation such as the Child Act provides the following:

 

  • Children's arrest in the Child Act: The Child Act states that where a warrant is issued for children's arrest, they should be arrested by Children's Police (s. 51.1)
  • Special provisions for children: The Juvenile Care Act 1983 says that parents/guardians or lawyers should be informed of any procedures involving children, as far as possible (s. 17b). Child Act: a parent/guardian and social welfare officer must be present (s. 50).
  • Confidentiality: Children's trials are supposed to be in private Child Act (s. 64).
  • Sentencing: Section 58 prescribes broad measures of 'corrective arrangements', which range from placing in the custody of family member or other adult, to being prevented from frequenting certain places or practicing certain jobs; the Act confers broad powers on the courts to prescribe measures it considers necessary for delinquent children or those 'susceptible to delinquency'; Article 85 stipulates that if a child between 15 and 18 years of age is found guilty of an offence punishable by death sentence, that child shall be sentenced to no less than 6 years, and no more than 10 years.
  • Alternatives to imprisonment: The Criminal Act (s. 33.3) states that children should not be sentenced to jail except for the Islamic-defined crime of haraba (waging war against society). Child Act (ss. 60, 62) allow for a wide variety of non-custodial dispositions. The Criminal Procedure Act allows for suspension of sentence (s. 170). The Criminal Act alternatives to imprisonment include reprimand; awarding custody to the parent or other adult; or sending to a reform institution for a period between 2-5 years (s. 47).

The Child Act 2004

The Child Act 2004 repealed Juvenile Welfare Act 1983. Here, a child is defined as any individual below the age of 18, unless the more applicable law stipulates that the child has reached age of maturity. The Act establishes that the protection and best interests of the child will have priority in all decisions or measures concerning "childhood, family or environment' (Chapter Two, s. 5(b)).

 

In terms of education, 'free education in the basic stage' is affirmed as a fundamental right for child upon age 6, for which 'the state shall create a conducive atmosphere' (s. 27). Section 32 provides for a school record that contains a birth certificate as well as notation as to 'health condition, type of disability and social status' and level of education. Corporal punishment is prohibited (section 30(a)); however, amongst objectives of education of Sudanese child is the building of character in the child that shall 'worship Allah in Freedom.' This objective is clearly problematic in light of Sudan's ethnic and religious pluralism.

 

In relation to what is termed as 'child culture' and 'satisfying child cultural needs', the act maintains a broad prohibition of any publications and literary works that "appeal to child's instincts or urging (sic) him to indulge in behaviours contrary to society's values and traditions or encouraging delinquency" (s. 36). The state is obliged to establish bookshops for children, which are to be associated with children's clubs mandated under the Act.

 

With respect to child labour, children under age 15 are prohibited from employment in industrial work; however, children between the ages of 14 and 18 may participate in agricultural work that is not harmful to health, as well as apprenticeships - both of which are subject to Ministerial regulations (s. 39(2)(a)). Notably, section 41 prohibits the use of children in armed conflict, forced labour, illicit trade and sexual exploitation; and section 84(1)(d) establishes penal consequences for employers or manages for violations of such with max imprisonment of one year, or fine, or both. The Act also establishes labour requirements for the employment of children between 14 and 18 under the legislated exceptions. These include: medical checks by employers (s. 42), working hours not exceeding 6 hours daily with one hour break (s. 43(1)), prohibition of working between 8pm and 7 am (s. 43(3)).

 

The Act also prescribes government obligations in relation to child welfare. These include the establishment of "alternative welfare families" and institutions (s. 22 and 23 respectively); as well as correction houses for delinquent children (s. 24), and the employment of disabled children in state organs and public utilities (s. 55).

 

Public Laws

Khartoum Public Order Act 1998

This Act governs certain activities within the Khartoum State. First, private or public parties are subject certain permissions (s. 5) and prohibitions, including "no dancing between men and women and women shall not dance in front of men" (s. 7(1)(b)). Other areas subjected to restrictions under the act include the use of public transportation (s. 9); a prohibition of begging and vagrancy (s. 10); license requirements for places of women's hairdressers (Ch. 5); and a prohibition of using loud speakers (Ch. 6). Penalties for infractions include fines, whipping and imprisonment (Ch. 7).

Labour Act 1997

This Act applies to all workers except civil servants, members of the armed forces, domestic servants, agricultural workers, family members of an employer, and casual workers.

 

The Act establishes a Manpower Committee (Ch. II), which is responsible for inter alia, coordinating manpower-related issues within executive organs and the collection of related data.

 

The Act also addresses the Organization of Employment (Ch. III) through provisions governing employment agencies, private employment agencies, recruitment, apprenticeships, and registration of workers. Chapter Three includes a requirement that all Sudanese seeking employment outside of Sudan seek permission of the Federal Minister of Labour. (s. 14) Chapter Four's "Employment of Women and Young Persons" includes a prohibition of the employment of women in hazardous or arduous working conditions and during the night - save for administrative or health-care jobs. In relation to children, Chapter IV forbids the employment of children (defined as persons under 12 years of age) and the employment of young persons (persons under 16 years of age) in specified tasks that are listed under section 21.

 

Chapter Five's "Contracts of Employment" regulates the types and contents of employment contracts and permitted modes of renewal. The sixth chapter, "Wages, advances and other allocations" governs the payment of wages while the seventh chapter, "Hours of work and leave" regulates the calculation of official hours of work, overtime work, types of leave (annual, maternity - four weeks prior to and following birth, sick, religious - namely, Hadj and Idda). The remaining chapters address "Termination of contract or employment" (Ch. VIII); "Severance pay" (Ch. IX); "Industrial Safety" - i.e. occupational health and safety (Ch. XI); "Labour disputes and stages of their settlements" (Ch. XII); and the "Stages of settling labour disputes" - i.e. negotiation and arbitration (Ch. XIII) and other general provisions concerning penalties, validity of contracts with successor employers, and labour inspection. (Ch. X). Despite the laws concerning workplace health and safety, working conditions are generally poor, and enforcement by the Ministry of Labour minimal.[39]

 

Additional legislation relating to labour issues include the Public Service Act (No. 5 of 1991) and its accompanying Public Service Regulations, 1995; as well as the Peasants' Organizations Act of 1976, which includes the treatment of agricultural workers. Relevant to broader public welfare are the Health Insurance Act, 2000, which addresses medical care and sickness benefit; and the Social Security Act of 1990, which addresses old age security, and survivor's benefits.

 

Commercial Laws

Banking Law

Banking is governed by the Law on the Regulation of Banking and the Money Laundry Combating Act. The Bank of Sudan Act 2000 establishes the Bank of Sudan and provides for its objectives in relation to setting monetary and credit policy, currency and exchange rates as well as economic and social development (s. 6). The functions and powers of the Bank are executed through the Bank's Board (Ch. III) and the Governor (s. 10). The Act governs "Capital, Reserves and Profits" (Chapter IV); "Currency" (Ch. V); "Foreign Exchange - Operations" (Ch. VI); "Relations with other Banks" (Ch. VII)'; "Relations with the Government" (Ch. VIII); "Other Operations of the Bank" (Ch. IX); and "Accounts" (Ch. XI).

Investment Encouragement Act, 1999 Amended (2003)

Laws such as the Investment Encouragement Act have likely much facilitated the ability of the ruling Islamists "to privatize most of the State's infrastructural establishments and key production units, including tanneries, textile factories, and railways."[40] This Act in particular aspires to "encourage investment in projects in the fields of agricultural, animal and industrial activities, energy and mining, transport, communication, tourism and environment, storage, housing, contracting, infrastructure, economic, administrative and consultative services, information technology, education, health, water and culture and information services and any such other field, as the Council of Ministers may specify." It consists of five parts, which include: "Encouragement of Investment"; "Privileges and Guarantees"; "Safeguard of Investment"; "Investment Organs"; and "Final Provisions." An anti-discrimination clause is provided for at the outset, which states that "no discrimination shall be made between invested money, by reason of its being local, Arab or alien, or by reason of its being public, private, co-operative or mixed sector" (s. 8(1)).

 

Certain fields are deemed strategic investment, namely those relating to infrastructure, roads, ports, electricity, dams, communications, energy, transport, contracting business, education, health and tourist and information technology services and water projects; relating to extraction of subterranean and deep seas wealth; agricultural, animal and industrial production; crossing more than one state; and any such other fields, as the Council of Ministers may prescribe (s. 9(1)). Those considered strategic projects are exempted from taxes from the business profits tax for a period of ten years (s. 10(1)(a)); as well as exempted from customs duties, or "customs privileges", as prescribed by the Minister (s.11(1)). State projects may also be exempted from taxes and fees (s. 13); likewise, federal projects also enjoy certain privileges, including exemption from local state taxes and fees (s. 14, 15).

 

Most notably, the Act provides for an explicit rule concerning expropriation. Specifically, the Act provides for the "non-nationalization, or non-confiscation of his project, non-acquisition of all, or part of the estates of the project thereof, or his investments, for public interest", with the exception that any such expropriation would have to be committed under the law and with "just compensation. (Emphasis added)" (s. 17(1)(a) - Investment Guarantees). Also noteworthy is a provision requiring that all investment projects require a licence (s. 19); the process for the granting of such licenses is governed under Chapter 4 - Safeguard of Investment, which includes a provision concerning "duties of the investor" (s. 25). The fifth and final chapter explains the relevant government bodies overseeing the Act, including the formation of a "Committee of Commissioners" (s. 27 - 30). The Act is unclear as to accountability for the granting of such licenses, which is problematic given the breathtaking breadth of investment activity that the Act potentially encapsulates.

National Petroleum Commission (NPC)

Since the discovery of oil in the South of Sudan, development and control over such has remained a difficult issue for some time, especially in relation to the conflict in South Sudan. Following the Sudan Interim National Constitution[41], Presidential Decree No. 37 (2005) was formulated concerning the establishment of the National Petroleum Commission (NPC). The Commission is primarily responsible for formulating policies and guidelines in relation to the development and management of the petroleum sector and to monitor the implementation of these policies to ensure that they "serve the best interest of the people of Sudan".

The Telecommunication Act 2001

The Telecommunication Act establishes the National Telecommunication Corporation, which regulates and licenses the provision of telecommunications services. The National Telecommunication Corporation has suspended on-line publications, including internet site "Sudanonline" in March 2006. The Act ought to be considered against the broader efforts to curtail freedom of expression and freedom of the press by Sudanese authorities. Examples of such include: journalists being routinely subject to interrogation by the security prosecutor of crimes against the state; foreign journalists generally being denied access to the region of Darfur; and members of the media are usually urged on by government security officials to support foreign policy decisions by the President.[42]

 

The Act is applicable to those "licensed hereto, to install and operate a broadcast station, a public or private telecommunication network, or use frequencies or import or trade in telecommunication equipment, shall adapt their positions according to the provisions of this Act in a period not exceeding three months from the date of signature of this Act." (s. 3) The Act addresses issues such as the National Telecommunications Corporation's Establishment, the Headquarters and Supervision of the Corporation (Ch. ІІ); the Management of the Corporation  Establishment And Constitution  of the Board (Ch. ІІІ); the establishment of Telecommunications, Equipment and Radio Stations,  Possession and Use Of  Telecommunication Network (Ch. IV); Licensing and Fees Licensing (Ch. V);   Public Telecommunication Services Submission of Reports (Ch. VI); Inspection and Supervision  Adherence to the License Conditions (Ch. VІІ); and General Provisions Connectivity of Licensed Telecommunications Networks (Ch. VІІІ).

Copyright and Neighbouring Rights Protection Act 1996

This Act establishes intellectual property standards in relation to works, performances, etc. in Sudan. The Act establishes the "Scope of Copyright Protection," including Works Covered by the Protection (s.5), Works Not Covered by the Protection (ss.6 - 7), Copyright (s.8); "Ownership of Copyright" (Part III), including Author's Name (s.10), Joint Works (s.11). Cinematograhic and Analogous Work (s.12), Duration of Author's Protection (s.13), Restrictions on Copyright (s.14); the Transfer of Ownership of Copyright (Part IV), including Transfer of Moral and Financial Rights (s.15), Use of Copyright (s.16), Publishing Contract (s.17), Public Performance Contract (s.18), Vesting of Ownership of Copyright on Author's Death (s.19), Order of Publication and Falling of Works into the Public Domain (s.20), Invalidity of Acts of Third Party for Lack of Consent (s.21). Finally, the "Registration of Works and Contracts" (Part V) is provided for, as is Protection of Neighbouring Rights of Performers (Part VI); and the Infringement of Copyright and Legal Consequences Thereof (Part VII).

 

E. Legislation

  • Civil Procedure Act 1983
  • Civil Transactions Act 1983
  • Constitutional Court Act 1998
  • Copyright and Neighbouring Rights Protection Act 1996
  • Criminal Procedure Act 1983
  • Evidence Act 1983
  • Judiciary Act 1983
  • Judicial Authority Act 1971
  • Khartoum Public Order Act 1998
  • Labour Act 1997
  • Local Courts Act 1977
  • Muslim Personal Law Act 1991
  • National Security Forces Act, 1999
  • Organisation of Laws Act 1973
  • Penal Code 1983 (introducing hadd penalties)
  • Political Parties Act 1999
  • September Laws; part of Ja'far al-Numayri's Islamisation campaign during Sudan's previous period of military rule (1969-1985)
  • Shari'a Courts Act 1967
  • Sources of Judicial Decisions Act 1983
  • Sudanese Criminal Act 1991 (reinstating hadd offences and law of qisas and diyat)

 

Treaties

Sudan is signatory to the following treaties:

        ICCPR & ICESCR (Accession 1986, without reservations)

        CRC (Signature & ratification 1990, without reservations)

 

F. Electronic resources

Relevant Country Information

 

Sudanese law

 

Situational Reporting and conflict analysis

 

Human Rights

 

G. Literature

  • "The Relationship between Islamic and Customary Law in the Sudan", Sayyid Muhammad Abu Rannat. Journal of African Law, Vol. 4, No. 1 (Spring, 1960), pp. 9-16.
  • The Customary Law of the Dinka People of Sudan: In Comparison with Aspects of Western and Islamic Laws, John Wuol Makec (January 1988; ISBN: 0948583045).
  • "Women and the Law in Sudan: First and Second Reports", Women Living Under Muslim Laws, vols. I-III (1997) & vols. I-III (1999).

 

 



[1] U.S. Department of State, Country Reports on Human Rights Practices - 2004, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[3] Of note, a Workshop Report of the SPLM Secretariat for Legal Affairs and Constitutional Development, together with the Customary Law Steering Committee, states that the "imposition of Sharia law (both in personal and criminal matters) to the whole of Sudan was yet another threat to Customary Law and was one of the major causes of the resumption of the war in 1983." (December 2004), available at: www.gurtong.org/ResourceCenter/laws/First_Customary_Law_Workshop_Report.doc.

[4] See The Situation of Human Rights - March - July 2006,

See also "No South/North border and ABC: CPA is dead," Sabrino Majok Majok, Sudaneseonline.com, available at: http://www.sudaneseonline.com/en/article_2244.shtml.

[5] See International Crisis Group, Sudan country profile, available at: http://www.crisisgroup.org/home/index.cfm?id=1230&l=1.

[6] Republic of the Sudan - The Judiciary, available at: http://www.sudanjudiciary.org/golded/en/spadmin.htm.

[7] "Promoting the rule of law in post-conflict Sudan", available at www.fmreview.org/text/FMR/24/14.doc.

[8] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[9] See "The Government Violations of Union Freedoms", Amin Mekki Medani, Sudan Human Rights Organization, The Sudanese Human Rights Quarterly, Issue 22, July 2006, Sudan Human Rights Organization, Cairo Branch, available at: http://www.shro-cairo.org/quarterly.htm.

[10] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[11] Republic of the Sudan - The Judiciary, available at: http://www.sudanjudiciary.org/golded/en/court.htm.

[12] Ibid.

[13] Ibid, note 9.

[14] Public order courts, which originally heard only minor public order issues, were suspended in 2000, and public order cases became heard in criminal courts. "The public court is the court of a single judge, the preliminary jurisdiction of which is defined by law in civil, criminal and personal matter cases. It also enjoys an appellate jurisdiction against judgments of magistrate of third and second grade in criminal cases." Republic of the Sudan - The Judiciary, available at: http://www.sudanjudiciary.org/golded/en/court.htm.

[15] "There are 397 court of first instance distributed all over the country. Their power(s) are prescribed by the civil procedure act of 1983 and the code of criminal procedure of 1991. The Chief Justice defines their pecuniary powers in civil cases and their penal powers vis--vis the imposing of fine also criminal cases. They also dispose of the matters summarily and non summarily depending on the merits of cases." Ibid.

[16] See Republic of the Sudan - The Judiciary, available at: http://www.sudanjudiciary.org/golded/en/court.htm; and

Emory School of Law, Laws of Sudan, available at http://www.law.emory.edu/IFL/legal/sudan.htm.

[17] Article 10, Chap. 3 of the Constitutional Court Act 1998.

[18] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[19] Ibid.

[20] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[21] Based upon interviews conducted by the author with prison administration and female inmates in July, 2005.

[22] Republic of the Sudan - The Judiciary, available at: http://www.sudanjudiciary.org/golded/en/court.htm.

[24] See "A call to Abolish Sha'ria Law in South Sudan: GOSS must take a Lead," Sabrino Majok Majok, Sudaneseonline.com (October 12, 2006), available at http://www.sudaneseonline.com/en/article_1599.shtml.

[25] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[26] A paper for conference on Legal Aid in Criminal Justice in Africa, Lilongwe, November 23, p. 5.

[27] The British and Egyptians shared sovereignty during the Condominium period from 1899. An agreement to allow for a three-year transition period to independence in 1953 led to self-rule in 1956. See Emory Law School, available at: http://www.law.emory.edu/IFL/legal/sudan.htm.

[29] "Checklist on children's justice: due process and prison conditions" UN Mission to Sudan, Child Protection Unit, Distributed June 2005.

[30] "The Situation of Human Rights in Sudan, 2003", Sudan Human Rights Organization, Cairo Branch, available at: http://www.shro-cairo.org/reports.htm.

[31] See "The Situation of Human Rights in Sudan 2003," Sudan Human Rights Organization, Cairo Branch, available at: http://www.shro-cairo.org/reports.htm.

[32] See "The Situation of Human Rights, March - July 2006", Human Rights Quarterly, Issue 22, September 2006, Sudan Human Rights Organization, Cairo Branch, available at: http://www.shro-cairo.org/quarterly.htm. See also Amnesty International Report 2005 - Sudan, available at: http://web.amnesty.org/report2005/sdn-summary-eng.

[33] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[34] See Section 5, Family Code. The Maliki school was the predominant madhhab in Sudan, although the dominant school is now the Hanafi, due to Egyptian and Ottoman influence.

[35] Excerpts from Emory Law School, available at: http://www.law.emory.edu/IFL/legal/sudan.htm.

[36] Based upon interviews by the author with Sudanese women's non-governmental organizations and community groups during July 2005.

[37] The Special Rapporteur on the situation of human rights in the Sudan urged the Sudanese Government in 2002 to continue discussions and awareness-raising with a view to acceding to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

[38] Criminal Act 1991, Art 3, Art 9.

[39] U.S. Department of State - Country Reports on Human Rights Practices, SUDAN, available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41628.htm.

[40] "The Situation of Human Rights in Sudan, 2003", Sudan Human Rights Organization, Cairo Branch, available at: http://www.shro-cairo.org/reports.htm.

[41] See Article 191 (1) of the Sudan Interim National Constitution.

[42] See "Reporting Human Rights in the Sudan Press", Mohamed Hassan Daoud, The Sudanese Human Rights Quarterly, Issue 22, July 2006, Sudan Human Rights Organization, Cairo Branch, available at: http://www.shro-cairo.org/quarterly.htm. See also, "Sudanese Reporter Held for Secret Reasons", Committee to Protect Journalists (October 6, 2006), available at: http://www.sudaneseonline.com/en/article_1517.shtml.

[43] This site reports the following in relation to the nature of human rights violations in Sudan: "The Government of Sudan enjoys a reputation of resisting the presence and activities of human rights groups in the investigation of human rights abuses. Violence and discrimination against women were problems. Prostitution is a growing problem, and female genital mutilation (FGM) is widespread. Abuse of children remained a problem. Discrimination and violence against religious minorities persisted, as did discrimination against ethnic minorities and government restrictions on worker rights. Child labour is widespread. Abduction of women and children, and slavery and trafficking in persons remained problems. Government security forces and associated militias were responsible for abductions of women and children, use of forced labour (including forced child labour), slavery, and the forced conscription of male children."

[44] This site reports: "The Government's human rights record remained extremely poor, and, although there were improvements in some areas, numerous, serious problems remained. Citizens were unable to change their government peacefully. Security forces and associated militias were responsible for extrajudicial killings and disappearances. Government forces, allied militias, and insurgent groups killed and injured thousands of civilians in conflict. Security forces regularly beat, harassed, arbitrarily arrested, and detained incommunicado opponents or suspected opponents of the Government, and there were reports of torture. Security forces and associated militias beat refugees, raped women abducted during raids, and harassed and detained IDPs."