UPDATE: Researching the Legal System of the Republic of Sudan

By Mai Aman

Mai Aman is a Sudanese lawyer and children’s rights advocate. She currently works as a project officer at the Children’s Rights Unit at the Centre for Human Rights, University of Pretoria. She holds an LL.B. (first class honours) from the University of Khartoum and an LL.M. in Human Rights and Democratization in Africa from the University of Pretoria and is currently an LL.D. Candidate at the same institution. Her other areas of interest and expertise include democracy and transitional justice.

NOTE: This article is a complete re-write of the previous version.

Published January/February 2023

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1. Introduction

Sudan is a country that is located in Northern Africa with a population estimated at 45 million persons. 43 per cent of the population are under the age of 15 years old, making Sudan a young nation. Since independence in 1956, Sudan has been in a constant political instability because of several civil wars and conflicts that erupted throughout its history. Between 1955 and 1972, a civil war occurred between the Northern and Southern regions of Sudan that resulted in an estimate of 500.000 civilian casualties.[1] Again, between 1983 and 2005, another civil war erupted between the two regions in what is now referred to as the longest civil war in Africa; this time, civilian casualties were estimated at 2 million people.[2]

In 2003, the Darfur region which is situated in the western region of Sudan witnessed a heinous war which left behind and estimate of 300.000 persons dead and more than 2 million persons displaced,[3] more recently, in 2011, a conflicted occurred in the state of South Kurdufan and Blue Nile which have also left behind several hundred thousand of people displaced. While the root causes behind all these conflicts varied, the usually revolved around marginalization, lack of just distribution of powers and power struggle.[4]

Following decades of civil war, South Sudan seceded from Sudan on 9 July 2011; as a result, Sudan’s demographics changed to most Sudanese Arabs, which accounts for about 70 per cent of the population, and a black African minority, which accounts for approximately 30 per cent of the population. This minority includes the Beja, Nuba, Fur and Fallata tribes.[5] Moreover, Islam became the most dominant religion with an estimation that 91 per cent of the population are Muslims, 5.4 per cent follow Christianity, and 3.6 percent are unaffiliated or follow other religions.[6] While there are approximately 114 languages spoken in Sudan, Arabic is the official language in the country.

Economically, Sudan is classified as a low-income country and has been struggling for years. The GDP has been deteriorating, from $66.4 billion in 2011 to $33.6 billion in 2019.[7] Inflation rates have also increased to approximately 124.9 per cent in 2020 compared to 82.4 per cent in 2019.[8]

2. Current Political Situation

In December 2018, a series of protests broke out against the dictatorship regime of Omar Al-Bashir, and citizens took the streets in peaceful protests for several months across different states in Sudan. These protests were met with unjustifiable violence from the regular forces which used tear gas, life ammunition, rubber bullets, and physical and sexual violence to suppress the protests. Nevertheless, against all odds, Al-Bashir was ousted on 11 April 2019.

While protesting, Sudanese people called for freedom, peace, and justice. It is against this backdrop that the Transitional Military Council (TMC) and the Forces for Freedom and Change (FFC) signed the Transitional Constitutional Charter (TCC) in August 2019 which consequently repealed the Interim Constitution of 2005. In chapter 14, the TCC provides a list of rights and freedoms that enjoys constitutional protection, these rights include:

Since the TCC was adopted, a three-years transitional period commenced and power was shared between the military and the civilians.[9] However, one month before the date planned for handover of power to civilians, the military staged a coup on 25 October 2021 and monopolized power,[10] a state of emergency was declared and several officials, activists, politicians including the Prime Minister were detained.

The Coup was strongly rejected by the Sudanese people, who took over the streets in protests calling for the urgent handover of power to civilians, yet again, their peaceful protests were met with severe use of power by the regular forces and as at 28 October 2022, a year after the coup, it is confirmed that at least 100 people, including children were killed following the coup and thousands were injured.[11] The coup authorities continue to oppress and use unjustified power and arms against peaceful civilians, yet, the fight for freedom, peace and justice continues.

3. Levels of Government

According to the TCC, Sudan system of government is decentralized, parliamentary, pluralist, democratic, sovereign and consists of three levels, first, the federal level which executes its powers at the national level to protect the sovereignty of the state, promote peoples’ welfare and protect the territorial integrity. The second level is the regional or provincial level that exercises power on the specific region or province, the third and last level is the local level which is tasked with promoting broad popular participation and highlights the basic needs of the people. All three levels enjoy both shared and separate powers.[12]

The Governments’ Organs: The TCC stipulates that the government shall consist of three bodies which are the Sovereignty Council, Transitional Cabinet, and Transitional Legislative Council.

The Sovereignty Council (SC): The SC which is the head of the state and the symbol of its sovereignty and unity, it is also the supreme commander of all the uniformed forces such as the armed forces and the Rapid Support Forces. The SC consists of 11 members: 5 civilians, 5 military members, and 1 civilian who is selected by both civilians and military.

The SC enjoys wide powers which include, for example, appointing the prime minister; confirming members of cabinet, the heads of regions or governors of provinces, members of the Transitional Legislative Council, the formation of the Supreme Judicial Council, the prosecutor-general and the appointment of the Judge President, judges of the Supreme Court, and the president and members of the Constitutional Court; declaring a state of emergency; ratifying execution sentences; and signing international treaties after it is approved by the Transitional Legislative Council.[13]

The Transitional Cabinet (TC): The Cabinet, which constitutes the executive authority, is composed of the Prime Minister and no more than 20 ministers. The powers and competencies of the TC include executing the tasks of the transitional period; building peace and preventing wars and conflicts; expediting draft laws, the state budget and international, bilateral and multilateral agreements; supervising the enforcement of the law and appoint and dismiss the heads of the civil service; overseeing and guide the work of state agencies, including the activities of ministries, public institutions, bodies and authorities and the companies subordinate or connected thereto, and coordinating between them in accordance with the law.[14]

The Transitional Legislative Council (TLC): According to article 23 of the TCC, The TLC is an independent legislative authority with members not exceeding 300, that represents all the forces that participate in the change, except for the National Congress and the political parties with active participation in the previous regime.[15] The powers of the TCC include but are not limited to enacting laws and legislations, approving the general budget, ratifying bilateral, regional and international treaties, and monitoring the performance of the TC.[16] Unfortunately, since the adoption of the TCC in 2019 and as of 20 June 2022, the TLC is yet to be formulated and its powers are exercised by the SC and TC who exercise these powers in a joint meeting by either consensus or simple majority.[17]

4.1. A Brief Historical Account

Prior to Sudan’s fall under colonial rule, the administration of justice was solely in the hands of leaders, in the North, where most of the population were Muslims, justice was administered by Islamic judges who are taught in Islamic Sunni schools and generally known as ‘Qadi’, experts in Sharia who are referred to as ‘Muftis’ act as advisors to rulers.[18]

In 1821, Sudan fell under the rule of the Turkish-Egyptian rule, which was eventually defeated in 1885 following a revolution lead by El-Mahdi. Consequently, the Mahdist state was established and ruled the country for 14 years, and the legal system during this period followed the Islamic sharia strictly in all matters.[19]

The reign of the Mahdist state came to an end in 1898 when Sudan was colonized by the British-Egyptian army who ruled the country in a joint administration, in what is generally known as the Anglo-Egyptian rule. The colonizers bluntly applied their divide-and-conquer strategy as they subjected the North and South regions of the country to separate administration up until 1947. In 1956, as the colonizers left the country, they handed the power to the people of the North, of which the vast majority were Muslims. This fact has greatly impacted and shaped the Sudanese legal framework which contains elements of common law and Islamic law.

When the Anglo-Egyptians took power, they found that there was no structured system in place to govern civil and criminal matters, thus, it was a priority to them to introduce a Penal Code, a Criminal Procedures Code and a system to organize the Mohammaden Courts.

The first Criminal Procedures Code and the Penal Code were introduced in 1899 which were—to a large extent—an adaptation of what was adopted in India. The adaptation proved to be suitable to the requirements of Sudan to a large extent with few areas that suggested new ideas that were not in harmony with prevailing practices and believes in Sudan. An example of this is the prohibition of slavery, which was very common in the agricultural industry. Another contentious area was the contradiction of some provisions in the Penal Code with the Mohammaden Islamic Law, such as the provision of imprisonment as a punishment to theft instead of amputation of the hand.

The Civil Justice Ordinance, adopted in 1900, was set up to organize civil disputes. Except for personal matters, the Civil Justice Ordinance recognized customary law if it does not contradict with good conscience. In instance where there is no provision to regulate a certain issue, judges were to apply the principles of justice, equity, and good conscience.

In 1902, the Mohammedan Law Courts Ordinance was passed, matters of Personal Law such as marriage, divorce, inheritance, and custody were adjudicated in these courts and in accordance with the Sharia Law provided that the parties, whether Muslims or not, ask the court to adjudicate the matter and sign a formal demand to that effect.[20] This process was administered by Egyptian judges. customary law was applied in Personal Status matters pertaining to non-Muslims. Moreover, local courts that were headed by chiefs or elders investigated matters concerning lands, grazing rights and disputes that would generally arise between tribes and clans.[21]

Post-independence, the influence of the British legal system remained in the country due to the strong reliance on judicial precedents and the fact that judges at the time were trained by the British. However, new concepts were developed such as the concept of separation of powers. Following the adoption of the Self-Government Statute, 3 branches of the government were developed, namely the executive, the legislative and the judiciary. The Self-Government statute provided that each branch is separate and independent of the other.[22] Article 76 of the Statute provided that justice shall be administered "by a separate and independent department of state" under the name of the judiciary.[23]

For the following years, despite the several coups and abrogation of the constitutions, the Judiciary remained as an essential branch in the country and Shariaa law continued to form a source of law as seen in the repealed Interim Constitution of 2005. However, the TCC which repealed the Constitution of 2005 does not state that Shariaa is part of the sources of law in Sudan. Nevertheless, elements of Shariaa law are strongly present in several laws in several Sudanese laws such as the Muslim Personal Status law 1991 and the Criminal Act of 1991.

Moreover, if there is no text that can be applied to the procedures in the matter presented, the court will apply the rules that would achieve justice. Also, in matters that are not governed by any legislative text, the courts apply the Islamic Sharia, the principles established in the judiciary in Sudan, custom, justice, and sound conscience.[24]

4.2. The Judiciary as of 2022

According to the TCC, matters of jurisdiction to adjudicate disputes in Sudan are entrusted to the judicial authority, which is an independent institution from the Sovereignty Council, the Transitional Legislative Council, and the Transitional Cabinet.[25] The head of the Sudanese Judicial authority is also the head of the National Supreme Court and has the responsibility of administration of the judicial authority[26]

4.3. Levels and Types of Courts

The different types of courts and their jurisdictions are stipulated in the Sudanese Civil Procedure Act which has been amended several times since its adoption in 1983, these courts and their jurisdictions are stated below in descending order:

According to the Civil Procedure Act, article 22 states that cases are usually brought before the competent court of the lowest degree.

The Constitutional Court: The Constitutional Court is separate and independent from the judicial authority; its main responsibilities are to observe the constitutionality of laws and protect the rights and freedoms from being violated as well as adjudicating in constitutional disputes.[27]

Military Courts: According to the TCC, Military Courts maybe established to try members of the military, the Rapid Support Forces, the Police, and the General Intelligence Service for violations of military laws.[28] Violations against civilians which can be adjudicated before regular courts of the judiciary are excepted from the jurisdiction of military courts.[29]

5. Laws Applicable in Sudan

5.1. International law

International law is one of the sources of law in Sudan. Article 41 (2) of the TCC stipulates that ‘All rights and freedoms contained in international human rights agreements, pacts, and charters ratified by the Republic of Sudan shall be considered an integral part of this document’. And that legislation shall organise these rights and freedoms without confiscating or reducing, the rights and freedoms shall be restricted to the extent needed by a democratic society.[30]

Sudan is a state party to several international treaties at the United Nations level and the regional level, these treaties include

5.2. National laws

Legislations at the national level in Sudan can be categorized to four wide categories which are stated in the following non-exhaustive list. Redress, Sudan: Legal Resources offers access to Sudanese laws open access. Some acts are available in English, some in Arabic, and some in both.

Criminal Laws

Civil Laws

Civil Procedures Act 1983

5.3. Commercial Laws

Other Laws

6. Online Resources

For a compilation of Sudanese Laws, Policies, Cases, Journals, Case Journals and books discussing the laws:

7. Literature about Sudan

Published print books on the Sudanese law and history of the legal system can be found at different publishing houses such AlReem Publishing and Distribution House, Sharif Academic Library, Abdul Karim Mirghani Cultural Center, International Printing and Publishing Company, Khartoum University Publishing House, and Aza Publishing House.

[1] Black past ‘first Sudanese civil war 1955-1972’ https://www.blackpast.org/global-african-history/first-sudanese-civil-war-1955-1972/ (accessed 25 March 2022).

[2] Black Past ‘Second Sudanese civil war 1983-2005’ https://www.blackpast.org/global-african-history/events-global-african-history/second-sudanese-civil-war-1983-2005/ (accessed February 2023).

[3] International Centre for Transitional Justice ‘Background from Chronic Instability to a Hard-Won Transition to Civilian Rule’ https://www.ictj.org/location/soudan (accessed February 2023).

[4] A Cobham ’Causes of Conflict in Sudan: Testing the Black Book’ (2005)17 the European Journal of Development Research 462. Carnegie Endowment for International Peace ‘Sudan: from conflict to conflict’ 2012 https://carnegieendowment.org/2012/05/16/sudan-from-conflict-to-conflict-pub-48140 (accessed 25 March 2022).

[5] Minority Rights Group International’ Sudan’ https://minorityrights.org/country/sudan/ (accessed 15 June 2022)

[6] US department of state ‘2020 Report on International Religious Freedom: Sudan’ https://www.state.gov/reports/2020-report-on-international-religious-freedom/sudan/ (accessed 15 June 2022).

[7] UNDP ‘COVID-19 SOCIO-ECONOMIC IMPACT ASSESSMENT FOR SUDAN’ 2 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjJn7-DgZf4AhWtS0EAHeujBEkQFnoECCIQAQ&url=https%3A%2F%2Fwww.undp.org%2Farab-states%2Fpublications%2Fcovid-19-socio-economic-impact-assessment-sudan&authuser=1&usg=AOvVaw1tOMS5MNPPBDxeic_pzeO1 (accessed 20 June 2022).

[8] African Development Bank Group ‘Sudan economic outlook’, https://www.afdb.org/en/countries/east-africa/sudan/sudan-economic-outlook (accessed 20 June 2022).

[9] On 3 October 2020, the Sudanese government signed the Juba Peace Agreement with armed opposition groups, which extended the transitional period until 2023. The agreement amended the Constitutional Declaration 2019. See Constitutional Charter 2019 (amendments 2020) (2 November 2020) 1908 Sudan Official Gazette 1.

[10] Clingendael “Military coup betrays Sudan’s revolution’ https://www.clingendael.org/sites/default/files/2021-11/PB%20Sudan%20Coup.pdf (accessed 11 April 2022).

[11] AlJazeera ‘Sudan protesters rally, defying a year of post-coup crackdowns’ (accessed 28 October 2022).

[12] Draft Constitutional Charter for the 2019 Transitional Period (2019), https://constitutionnet.org/sites/default/files/2019-08/Sudan%20Constitutional%20Declaration%20%28English%29.pdf (accessed February 2023). See also Brooke Davies, Sudan’s 2019 Constitutional Declaration: Its Impact on the Transition, https://constitutionnet.org/sites/default/files/2022-11/sudans-2019-constitutional-declaration-its-impact-on-the-transition-en.pdf (accessed February 2023).

[13] The TCC, art 10.

[14] The TCC, art 14, 15.

[15] The TCC, art 23.

[16] The TCC, art 24.

[17] The TCC, art 24(3).

[18] Countrystudies ‘The Legal System’ http://countrystudies.us/sudan/65.htm (accessed 28 October 2022).

[19] Karibandmedani Advocates, The Sudanese Legal System, https://www.karibandmedani.com/publications.htm (accessed February 2023) (downloadable Microsoft Word document).

[20] E Guttmann ‘the reception of the common law in Sudan’ The International and Comparative Law Quarterly, July 1957, Vol. 6, No. 3 (1957) 405-407. https://www.jstor.org/stable/pdf/755196.pdf?refreqid=excelsior%3A2619a70b4f5de6d8342e67680feccd66&ab_segments=&origin=&acceptTC=1 (accessed 28 October).

[21] As above.

[22] E Guttmann (n3).

[23] Article 75, Self-Government Statute.

[24] The Civil Procedure Act 1983, art 6.

[25] The TCC, art 29 (1-2).

[26] The TCC, art 29 (4).

[27] The TCC, art 30.

[28] The TCC, art 37.

[29] As above.

[30] The TCC, art 41 (3).