Countries of the World/COUNTRYS.BIN/dp/0342/03428.txt

Text File | 1991-06-25 | 26KB | 416 lines

$Unique_ID{COW03428}
$Pretitle{227}
$Title{Sudan
Chapter 4B.   The Legal System}
$Subtitle{}
$Author{Jean R. Tartter}
$Affiliation{HQ, Department of the Army}
$Subject{regional
southern
assembly
president
law
civil
south
courts
government
council}
$Date{1982}
$Log{}
Country:     Sudan
Book:        Sudan, A Country Study
Author:      Jean R. Tartter
Affiliation: HQ, Department of the Army
Date:        1982

Chapter 4B.   The Legal System

     The administration of justice was regarded traditionally by arabized
Sudanese and a number of southern ethnic groups as the most important function
of government. In precolonial times supervision of justice was solely in the
hands of the ruler. In the north most cases were actually tried by an Islamic
judge (cadi) who was trained in the precepts of the sharia (law based on
interpretations of the Quran-see Glossary). Crimes against the government,
however, were heard by the ruler and decided by him with the advice of the
grand mufti, a canon lawyer who served as his legal adviser.

     Although the Muslim influence on Sudanese law remained important in
modern times, the long years of British colonial rule left the country with a
legal system derived from a variety of sources. Personal law covering such
matters as marriage, divorce, inheritance, adoption, and other family disputes
was adjudicated in the sharia court system of the Arab-populated areas.
Customary law, modified in varying degrees by the impact of the sharia and
concepts introduced by the British, governed matters of personal law in other
areas of the country. Laymen, generally a chief or group of elders, presided
over local courts, which in 1966 heard between 55 and 75 percent of all
Sudanese court cases. In addition to personal law these courts, which numbered
nearly 1,000, heard cases involving land title, grazing rights, and other
disputes between clans and tribes.

     The primary legal influence remained British, however, because of the
weight given to British legal precedents and because most of the lawyers and
judges were British-trained. British inspectors and district commissioners had
wide discretion in both judicial and administrative cases. Trained in the
basics of Sudanese law, they served as magistrates and administered the bulk
of criminal law. The penal code of 1925 was closely modeled on the penal code
of British colonial India. After independence in 1956 much discussion took
place on the need for reform or abrogation of the system inherited from the
British. A commission preparing a revision of the law was dissolved when the
military came to power in 1969, and a new commission, dominated by twelve
Egyptian jurists, was formed. Eight months later a new civil code of 917
sections emerged, copied in large part from the Egyptian civil code of 1949,
slightly modified by civil codes of other Arabic countries. It was followed
within a year by draft commercial and penal codes.

     This major upheaval in Sudan's legal system was in almost every respect a
failure because it disregarded existing laws and customs of Sudan, introduced
many new legal terms and concepts from Egyptian law without source material
needed to interpret the code, and presented massive problems in recasting
legal education. The Sudanese Penal Code, which was well established and
buttressed by a strong body of case law, was to be replaced by the Egyptian
code, which was largely transplanted from a French system entirely alien to
Sudan. After Sudan's turn away from Nasserite Egypt in 1971 and in response to
the outcry from the legal profession, the minister of justice formed a
committee of Sudanese lawyers to reexamine the new Egyptian-based codes, and
in 1973 they were repealed, returning the country's legal system to its
pre-1971 common law basis.

     In 1977, to fulfill one of the conditions of his reconciliation with the
politico-religious Ansar sect and the Muslim Brotherhood, Nimeiri formed a
committee for the revision of Sudanese laws to bring them into better
conformity with Islamic teachings. The committee has been dominated by the
Muslim Brotherhood, a leading member of which, Hasan Abdallah al Turabi, is
both a member of the committee and attorney general. The committee was the
object of suspicion by non-Muslims of the south, and the two southern
politicians who agreed to sit on the commission rarely took part in its work.
Among the proposals by the committee sent to the People's Assembly for
enactment was a Liquor Prohibition Bill forbidding the sale, manufacture,
advertising, and public use of alcohol among Muslims. Another was the Zakat
Fund Legislative Bill, which would make mandatory the collection of a tax from
Muslims for a social welfare fund administered separately from government
accounts. The Sources of Judicial Decisions Bill would repeal the section of
the existing civil procedure code that allows a judge to apply the concept of
"equality and good conscience" in the absence of a provision of law and would
substitute for it the Quran or the sunna (standards of conduct based on the
Prophet Muhammad's deeds and words). The committee also proposed to
reintroduce the hadd (Quranic punishment for theft, including the amputation
of hands) and a prohibition on payment of interest on loans, regarded as
usury.

     As of early 1981 the work of the committee on Islamization of laws was
reported to be in abeyance. It seemed that after encouraging Muslim
fundamentalists by permitting a review of existing laws, Nimeiri was
hesitating over the political risks of forcing through revisions based on
Islamic principles that would fan animosity of secular and regional forces.

The Courts

     Under the Permanent Constitution of 1973, the judiciary was to be
independent in the performance of its duties while at the same time
responsible to the president of the republic. A Supreme Council of the
Judiciary was established to advise the president on the appointing, removing,
and disciplining of judges. The members included the chief justice, the grand
cadi, relevant cabinet ministers, including the attorney general, deputies of
the chief justice and grand cadi, and the dean of the law faculty at the
University of Khartoum.

     The judiciary is formed of two divisions: the Civil Division headed by
the chief justice and the Sharia Division headed by the grand cadi. Civil
justice is administered by the Supreme Court, courts of appeal, and other
courts. The Supreme Court concerns itself with protection of rights and
freedoms in the Constitution, interpretation and questions regarding the
constitutionality of laws and conflict of judicial jurisdiction. Each region
or district was to have its own appeals courts. Under the Judiciary Act of
1976, the Supreme Court was to be composed of twenty-one civil and nine sharia
judges. Criminal justice is administered by major courts and magistrates'
courts, whose jurisdictions are set out in the Criminal Procedure Code of
1974. Serious crimes are tried by major courts convened by specific order of
the province judge consisting of a bench of three magistrates. Magistrates are
of first, second, or third class and have corresponding gradations of criminal
jurisdictions. Sudanese legal experts have noted the wide discretion vested in
local magistrates. They advise the police on whether to prepare for a
prosecution, determine whether a case should go to trial (and on what charges
and at what level), and often act in practice as legal advisers to the
defendant.

     Personal legal matters for Muslims are adjudicated by sharia courts
consisting of panels of judges versed in Islamic law involving inheritance,
marriage, divorce, and family relationships. A plan to amalgamate the civil
and sharia systems has been introduced. As of late 1981 it was understood that
the functions of the grand cadi had been assumed by the chief justice, who was
assisted by four deputy chief justices, one of whom concerned himself with
sharia law. The position of another senior Muslim judicial officer, the m