Sudan Legal System and Problems of Law Reform

Revised version of a paper presented on the occasion of the 25^th anniversary of the national loss of Mohamed Ahmed Mahjoub
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By Professor Mohamed Ibrahim Khalil*

former dean of law, is now a fellow of the law faculty, Khartoum University and a practicing advocate.

Introduction
In order to appreciate the need for comprehensive law reform, it is necessary to have  an overall view of the conceptual changes that the Sudan, its legal system and constitutional framework have undergone through modern Sudan's various stages of development. For purposes of the present discussion, these stages are {1} the period from the Anglo-Egyptian reconquest until 1969, (2) the phase of ideological intervention with the legal system, first Arab nationalism during the first part of the Nimeiri regime and later Islamism from the late 1970's until the conclusion of the Comprehensive Peace Agreement (CPA) and (3) the phase of liberal constitutionalism which began or should have begun with the promulgation of the 2005 Interim Constitution. In the second part of this presentation, I shall, at the risk of repetition and overlapping with other papers, indicate the main features of law reform concerns, principally compatibility with the Interim Constitution. Lastly, I will hazard some suggestions about how to set about the task of reform, in the hope of rehabilitating what was once an excellent system, at any rate by Third World standards, bring it in line with the Interim Constitution and render it the better able to cope with the exigencies of democratic transition.

Part I- The Sudan legal system from the Reconquest to the late 1960's

The re-conquest of the Sudan in 1898, which was achieved after an extraordinary resistance, ended a regime that had held sway over nearly all of the Sudan and established its own administrative and legal system. Accordingly, the British Government decided, at the outset, to treat the Sudan differently from their other colonial possessions. This was specially reflected in the legal system. Abandoning their custom of carrying their laws bag and baggage wherever they went, they considered it judicious to devise for the newly acquired territory laws and a courts system that was reasonably modern without flying in the face of traditional religious and moral norms.

The criminal law
The criminal law introduced in most of the colonies was more or less a codification of the common law as applied in Britain in the 19^th century. Nigeria, for example, followed the pattern of Queensland’s code, drafted by Sir James Fitzjames Stephen, one of the renowned jurists of the time. That enactment codifies the common law principles of criminal responsibility and its definitions of offences as enunciated in judicial precedents, as well as its technicalities and archaic terminologies.
With regard to the Sudan, the Indian Penal Code was viewed as a more apt model. In preparing that code, Thomas Babington (later Lord) Macaulay, right at the outset sought, rather than imposing English law, to give due consideration to India's civilization and moral values. He was by the same token particularly concerned with accommodating the Islamic principles of criminality and criminal responsibility, since the only regular courts had been those established by the Mogul Empire in the parts of India under its control. Consulting several penal systems, including the Code of Louisiana and couching his draft in simple lucid language, he produced a code that was described by Sir James Fitzjames Stephen as an excellent piece of legislation.
Our 1925 Penal Code was a shorter, improved version of its prototype... Although it does not prescribe the hudud and qisas punishments, its substantive content is, to a considerable extent, consistent with the Islamic concept of criminality. Indeed it penalizes almost all acts that constitute offences under the Shari’a. While alcohol consumption, per se, is not made an offence, being found drunken in a public place is (S .445.)  Likewise, extramarital intercourse did not amount to an offence if done with the consent or connivance of the spouse (Ss. 432; 433) and s. 134 of the Code of Criminal Procedure forbade taking cognizance of the offence without the husband’s complaint. On a first impression, this sounds somewhat licentious. On closer examination, however, it would appear that the rationale is the protection of the privacy of private homes and the preservation of the integrity and sanctity of marriage. Nevertheless, if the husband initiated the proceedings, adultery could be proved much more easily than it can under the Shari’a rules which require four eye-witnesses.

In this connection, it is pertinent to note that, in pursuit of consistency with Islamic morality, our code did not follow its Indian prototype with respect to the issue of omission as a basis of criminality. . To what extent omission should constitute the actus reus of an offence is one of the disputable issues of criminal jurisprudence. As a general rule, it does not give rise to accountability unless there is an express or implied duty to act.  For example, the exigencies of the administration of justice require that private citizens come to the aid of public officers in certain situations; accordingly failure to do so amounts to an offence (See ss. 32, 68 of the Code of Criminal Procedure and ss. 150,151,152 of the Penal Code.)  Likewise, where there is a contractual or other legal duty to look after a child or an old infirm person, dereliction of such duty generally amounts to an offence. Where no such duty exists, however, the Common Law stance is illustrated by the hypothetical babe in the tub case: a person who is not charged with the duty of care after a child does not commit an offence if he sees it drown in a tub or a shallow pool and raises no finger to save it. In Islamic jurisprudence, there is difference of opinion between the various schools. While the Maliki and Hanbali schools regard omission leading to death in such cases as amounting to murder and culpable homicide respectively; other schools hold that no offence is committed unless there is a duty of protection arising from law or urf. French law treats the omission as a misdemeanor. After giving the matter a good deal of thought, Macaulay decided against penalizing omission. “ Law”, he wrote in his works edited by Lady Trevelyan:  “must content itself with keeping men from doing positive harm, and must leave to public opinion and to the teachers of morality and religion the office of furnishing men with motives for doing positive good.”

But the authors of our Penal Code took a different view. S.231 makes it an offence for anyone having it in his power to assist a person injured or unconscious or in peril of his life wilfully to withhold such assistance as is possible without exposing himself or others to danger.

Yet another mark of originality is the treatment of exemption from criminal responsibility on the ground of insanity. Until the passing of the Homicide Act, 1957, the Common Law exemption hinged on the M’Naughten rules. Those rules were so ambiguous that they were open to different interpretations. In particular, it was  not clear whether” insane delusions” would afford exemption on the ground of uncontrollable impulse. Sir James Fitzjames Stephen, being of the opinion that they would, expressly provided for it in the Queensland code. Macaulay’s draft, written shortly before the formulation of the M’Naughten rules, contained a succinct, though not very helpful, provision, similar to that of the French penal code which is believed to be one of his sources of inspiration. That provision purported to exempt “an act done by an idiot, or by a person in consequence of being mad or suffering from delusions.” This formulation was dropped from the final version of the Indian Penal Code and replaced by s.84 which reproduced the M’Naughten rules.

Section 50 our code, in its characteristic lucid style, exempted any act done by a person who at the relevant time “did not possess the power of appreciating his acts or of controlling them”, by reason of permanent or temporary insanity or mental infirmity. In a further departure from English Common Law, the Penal Code equates with insanity involuntary, but not voluntary, intoxication those results in similar incapacity.

The Civil and Shari’a Divisions
The Mohammedan Law Courts Ordinance, 1902 established, within the court structure,  an independent Shari’a Division vested with jurisdiction over all matters of personal status, family relations, succession and wakfs. Making a minor inroad into that otherwise exclusive jurisdiction, however, s.5 of the Civil Justice Ordinance gave civil courts competence to try cases involving any such issues on the written request of parties willing to submit to their jurisdiction.
Apart from that, all civil transactions fell within the jurisdiction of the Civil Division. The civil procedure was a simplified version of the English rules of pleadings. As for the substantive law, there were a few British-style ordinances dealing with negotiable instruments, company law, bankruptcy and trade marks and a large number of other enactments covering a wide range of subjects that scarcely crop up in day-to-day court business. But what is called the lawyers’ law, the advocate’s common tools of contract, sale of goods, tort and evidence,  is not covered by legislation. This enormous gap was to be filled in by recourse to “justice, equity and good conscience” under the authority of s.9 of the Civil Justice Ordinance. Assuming, as they were naturally inclined to do, that the principles of the Common Law accord with justice, equity, the British judges proceeded to apply English judicial precedents. However, unlike British judges in India, Nigeria and other Commonwealth territories, they took pains to assert their flexibility in seeking aid from English precedents.  The courts of the Sudan, said Owen, J in a 1925 case “are entitled to adopt or reject the English common law, ...according to whether it is in consonance with the principles of justice, equity and good conscience, having regard to conditions in this country. We are guided but not governed by English common law and statute law.” 

Part II- Ideological Meddling with the Legal System

It would readily appear from the above brief survey, that ours was a basically sound, albeit simple, legal system. Accordingly, there was reason to expect it to evolve in such a way as would befit it for post-independence political, societal and economic development.  As it turned out, however, a contrary fate lay in store for it.
First in 1968, and then in the early 1980's, President Jaafar Nimeiri set out to, and did bring about, a radical change in the law. The approach he adopted on the one occasion was radically different from the other. Underlying his motivation was a bigoted conviction that the Sudanese had all along, been  governed by bad colonial laws that should, once and for all, be erased from the statute book and dumped in the dustbin of history and replaced by Arab-oriented laws.
 
The civil law
The first measure in that direction was the promulgation in 1970 of a short-lived civil code which repeatedly contained reference to the name of an Egyptian village. Soon after, that code was repealed without ado, in sharp contrast to the fanfare with which its authors had been received. By the late 70's and early 80's, however, Nimeiri had adopted a religionist style of life and now wanted to “Islamize” the legal system.  Interest on loans was declared illegal on the ground that it amounted to riba and banks were accordingly ordered to be Islamized. So they resorted to transactions, deemed Islamic, which have the appearance of partnerships or joint ventures but are, in essence, bogus manipulations aimed solely at getting round the law. Under any of these transactions, known as musharaka, murabaha, mudaraba, etc. the bank assumed the role of a partner rather than a lender. As such, it was entitled not merely to return of capital with a small interest but to a share in the profits of the joint venture. Thus loan capital was now available almost solely to the   investor, and money began to circulate among a small class of nouveau riche, in defeat of the Qur’anic objective, kay la yakuna doolatan bayna al-aghniya’i minkum (V. 59:7). Indeed, it is the have-nots, the poor, and the destitute, the wage or salary earner who has no money to invest but would often need a small loan to build a new room or undertake necessary repairs and who toils to make both ends meet - it is these and not the well-to-do investor, who trouble the Qur’anic conscience. And for them there is no place in the so-called Islamic banking.  

The Sources of Judicial Decisions Act, 1983 was a source of unprecedented confusion and uncertainty. It provided, inter alia , that in the interpretation of legislative provisions, the court shall assume that the legislature does not intend to run counter to the Shari’a and that such provisions and any discretion thereby vested are intended to be consistent with its spirit and principles. It also provided that where there is no enactment governing the issue, the court shall apply express provisions of the Qur’an and Sunna and also and seek guidance from such Sudanese decisions as are consistent with the Shari’a and if no relevant rule is found therein it shall strive to form an opinion, having regard to the principles of the promotion of benefit and the avoidance of harm. While the latter source of guidance is substantively the same as justice, equity and good conscience, the earlier, in view of the vastness of Islamic jurisprudence, is bound to lead to uncertainty and different decisions on identical issues.

The criminal law
By providing for the punishments of hudud and qisas, the 1983 Penal Code drastically changed the penal aspect of the country's criminal system. Going further, the 1991 Code added qisas. The indiscriminate application of these punishments resulted in grave consequences, manifestly repugnant to the Islamic concept of justice and contrary to the spirit of the Shari’a, whose hallmark is the realization of public benefit and the avoidance of harm. The Evidence Act, 1993, amending earlier legislation, in effect made evidence obtained by torture admissible.  The combined effect of s.152 of the 1991 Penal Act and the 1996 Public Order of the Wali of Khartoum subjected women  to various forms of humiliation, including restriction of movement, segregation in vehicles of public transport, wearing forms of dress alien to Sudanese custom and much in excess of Islamic requirements (V. 24:31). A woman who refused to abide by these stringent requirements was subjected resulted to harassment, detention and flogging.

Denial of Legal and Constitutional Remedy

Some legislative provisions introduced since 1989 aggravated the harshness of these Draconian laws even further. Although the law penalizes such acts as causing hurt, criminal force, false imprisonment, extortion of confession, arrest and search without a warrant, if committed by an agent of the security forces recourse to the courts for remedy was well-nigh impossible. Section 33(b) of the National Security Act, 1999 makes sanction of the head of the Security Agency a condition precedent to the prosecution of any of its personnel. Section 38 of the Criminal Procedure Act, 1991 purports to impose a limitation period of ten, five and two years for the prosecution of offenses punishable with death or ten years imprisonment, with five years and two years imprisonment respectively.  It may be noted in passing that time limitation in the prosecution of offences is something unknown to most modern systems of jurisprudence. Yet, ironically, as we enter our post - CPA and the Interim Constitution phase, the right of litigation guaranteed absolutely by Article 35 is subjected to a further restriction. And, cynically, such restriction is to be found, of all enactments, in the law establishing the only organ that raises hopes of effective protection of basic rights and freedoms. Section 20, of the Constitutional Court Act, 2005 provides that the Court, having admitted a petition, may nonetheless dismiss it summarily if it appears that more than six months have elapsed since the petitioner first knew of his right.

If, in an attempt to avoid the effect of this bizarre provision, the aggrieved person fall s back on the criminal courts, he may well meet with another obstacle. Section 58 of the Criminal Procedure Act is a codification of the common law power of entering a nolle prosequi, without, however, the conventions governing its exercise, i.e. that it be used for humanitarian and public interest purposes and in a quasi-judicial manner unaffected by political considerations. In a legal regime that circumscribes recourse to the courts in the manner just described, it would not be surprising if s.58 were used to frustrate a victim’s attempt to seek redress for aggression on his constitutional rights.
Even civil claims for compensation against the government may turn out to be of no real value. A 2004 amendment to s. 204 of the Civil Procedure Act purports to vest Government assets with immunity against execution attachment. This, in effect, renders well-nigh valueless any judgment for compensation against the Government and thus makes nonsense of a good part of the high sounding provisions of the Constitution’s Bill of Rights.

There are also less conspicuous provisions that may interfere with the enjoyment of some fundamental rights. For example, s. 70 of the Income Tax Act, 1996 forbids government agencies from completing the processing of a number of transactions including transfer of property in land, ownership of a motor vehicles, registration of companies, partnerships, trade marks and business names unless, the parties concerned produces a certificate of discharge from tax. Extra legally, the Registrar of Partnerships requires discharge from the zakat as well.


PART III: Need for Reform

It is clear from this bird’s-eye view of our statute book that there is sharp discrepancy between some of its provisions and the Interim Constitution. The need for reform in order to bring about compatibility is, therefore, patent. I now proceed to hazard a few suggestions for further thought.

1. Comprehensive Law Reform
I suggest we need to be concerned with more than a limited list of sections that appear on first impressions to call for reform.   I heard a few days ago that an informal group of lawyers had spotted about 60 provisions that appeared to be inconsistent with the Interim Constitution.  I soon learned, however, that their list did not include s. 58, of the Criminal Procedure Act, the amendment purporting to put Government assets beyond the reach of the courts or, indeed the Income Tax provision just referred to. The conclusion I draw from this is that we need a comprehensive, thorough investigation of the enacted laws in the light, not only of the Interim Constitution, but of well established jurisprudential and constitutional principles. This does not mean that everything can or should be done at the same time. Although it is necessary to draw up a list of priorities, a reform project, in our present assistances, should have as its ultimate objective to set the entire statute book in good order. With regard to priorities an area that should be put at the top of the list is the provisions which purport to restrict the constitutional right of recourse to the courts or in any other manner frustrate attempt to obtain redress for violation of fundamental rights and freedoms. Erasing such provisions from the statute book is, in my view, indispensable for the success of the task of democratic transition.

Next in the list of priorities should, I suggest, be reform of our commercial and investment laws which, regrettably, abound in arbitrary powers inconsistent with free market, transparency and equal opportunity. Time does not permit to go into this area on the present occasion.

2. Law Reform Agency
I think the task calls for a high-powered commission, committee or agency, composed of academically qualified, competent and experienced lawyers .Ideally the Government would take the lead in a project of comprehensive law reform. But governments have their own concerns, their own agendas and their own style of achieving results. But even though policy crafters and decision makers may not see eye to eyes with us, meticulous lawyers, on the priorities of law reform or how to set about it, we should make a beginning and try to cooperate as much as possible with the official authorities, avoiding conflicts and adopting the line of least resistance.

3. Long Term Support Measures
Law reform is not a once for all task. In an ever changing world the law must be kept under constant review. While law commissions are normally set up between long intervals, continuous input should be forthcoming from the judiciary, the legal department, the bar and law teachers. All of us, it must be admitted, have failed in providing meaningful input.

As far as our judiciary is concerned, it is unique in more than one respect. The judiciary, in both the civil and common law systems gets now and again enriched and invigorated by the appointment of distinguished members of the other branches of the profession. But ours is a self-perpetuating closed circle with which rapport is difficult. It should be possible, however, to maintain a relationship of cooperation among the other branches. Such cooperation may well yield the urgently needed creation of an independent law society to be engaged in academic research and critical review of court decisions, current legislation and legal education in a society entering a phase of constitutionalism and liberal democracy.

http://www.mik-law.org/sudanlegalsystemandreform.html