The influence of Islamic law on the legal system of the Sudan is a field of studies that, except for a short period of increased interest after the September laws in the 1980s, is rather underresearched.
The work under discussion here is the first monograph trying to give a comprehensive account of the role of the Sharia in the Sudan since more than a decade. The author, an anthropologist and professor emeritus of Rhode Island College, is well-known for her 1987 book Islamic Law and Society in the Sudan, numerous articles on Sudanese issues and also as a co-founder of the Sudan Studies Association. Based on research conducted between 2005–2009 in the Sudan and the author’s earlier research in the 1980s, Fluehr-Lobban attempts to “document the role that shari’a has played in Sudan’s Islamism”, to “analyze the ways in which it was deployed” and to “comprehend the magnitude of the social change that has taken place since 1983” (p. xv).
The first three chapters concentrate on historical developments with regard to Sharia. In the first chapter the history of “Shari’a, Islam and Islamism in Sudanese History” is introduced, before 1983 in reverse chronological order, from the present to the Funj and with a focus on the role of Islam and Sharia in peace negotiations between Northern and Southern Sudan 1972–2005. Here the author also briefly introduces her understanding of the term “Shari’a”, however, without providing the reader with a clear definition of how “Shari’a”, also in relation to the fiqh, is being used in the book (pp. 21f.). The historical introduction is followed in chapter 2 by an account of the different stages of (legal) Islamization before 1983, the September laws and the fate of Sharia application after the fall of Numairi until the military-Islamist coup in 1989. As to the author(s) of the September laws, information given is erroneous. Thus, we learn in the introduction that “Dr. Hasan al-Turabi […] drafted the first Islamist laws, known as the September Laws […]” (p. xiii). Al-Turābī, as a matter of fact, had been intentionally removed by al-Numayrī from the scene and the task to draft the September laws had been given to a three-member committee of junior lawyers.1 Chapter 3 concludes the historical overview with an outline of Sharia under the present “Inqaz” regime. Here, the author discusses the reasons “leading to the reduction and partial withdrawal of the Islamist program” (pp. 94f.) and why the Islamist regime failed in its “bid to implement Shari’a” (p. 96). As to the former the removal of Ḥasan al-Turābī from the centre of power clearly paved the way for a more pragmatic approach, avoiding the Sudan’s further involvement with Islamic radicals and toning down the enforcement of a harsh Islamic morality regime. As to the “failed implementation of the Shari’a” (what is meant here is Islamic criminal law) all reasons cited, such as loss of legitimacy after al-Numayrī’s harsh application, SPLA resistance, vociferous criticism from secularists and human rights activists, were obvious before the 1989 coup. In fact, one could argue that the Bashir regime has not “failed” in implementing Sharia, but rather decided early on to impose a moratorium on the harshest Sharia punishments while “outsourcing” all questions of Islamic morality to the parallel Public Order system not bound by the complex rules pertaining to the Criminal Act 1991.
In chapter 4 the author highlights aspects of Islamic criminal and family law, as codified in 1991, while including personal observations in Khartoum courts and in IDP camps surrounding Khartoum. Factual mistakes and misrepresentations as to the codification of Islamic law and beyond are numerous. Several times the author claims that the Sudan is a signatory of CEDAW (pp. 125f., 142) and the US is not (p. 259). As a matter of fact Sudan is not a signatory and the US has indeed signed, though not ratified, CEDAW. An example of how the imprecise use of the term “Shari’a” and incorrect information and analysis make for difficult reading is the following paragraph. Under the headline “The 1991 New Codified Shari’a” we read: “The new comprehensive Shari’a Code of Law, with 458 sections, may be seen as totally innovative, although it retains much of colonial law, the Indian Penal Code adapted to Sudan in colonial times, and the evolved family law until 1990” (p.115). This is a rather confusing introduction to a chapter that could have shed some light on an interesting phase in the development of Sudanese legislation. It is unclear which law exactly the author is referring to. In 1991, the Sudan introduced a new Criminal Act replacing the Penal Code of 1983. The Penal Code 1983 had indeed 458 sections, the Criminal Act 1991 consists of 185 sections. It is unclear why the code in question (and we don’t know which one the author is referring to) is indeed “totally innovative” if it is retaining “much of colonial law, the Indian Penal Code […]”. Did she mean to talk about the Criminal Act 1991, as the title of the chapter suggests, and both codes got mixed up? Contributing to the confusion is her mentioning a “Commission drafting the 1991 law”, whose function it was “to consolidate the totality of Sudanese law into a single code” (p. 115). If a commission with such an unlikely mission ever existed, no such “comprehensive code”, ever came into being, certainly not one that combined criminal law and the “evolved family law until 1990”. As to family law proper Fluehr-Lobban refrains from going into a detailed textual analysis referring the reader to her earlier 1987 work (p. 138). According to the author changes in the 1991 codified family law are rather minor, but have made family law under the Bashir regime more conservative (p. 140). Especially in view of the latter finding it would have been enlightening to compare the main issues with pre-codification practice in a systematic way. Given Fluehr-Lobbans previous work on non-codified Islamic family law in the Sudan the lack of such a comparison seems to be a missed opportunity.
Chapters 5 and 6 on demographic and social transformation make for interesting reading. Based on her long experience with the Sudan, the author gives an account how the influx of Southern Sudanese and other African refugees as well as changes of the city’s infrastructure and new technologies have changed not only Khartoum’s physical image but also social relations among its inhabitants. Especially noteworthy are her visits to some of the IDP camps around Khartoum which provide the reader with valuable insights into the organization of the camps and their relationship with state institutions. Interestingly, customary courts still function in the IDP camps, especially with regard to family matters and “quarrels between people”. Records of these “Salateen” courts, however, if existent, are not kept by the official authorities who seem to be rather uninterested. More important cases which were previously also heard by the Salateen courts are now dealt with by the regular court system. The strong presence of the Public Order Courts and Police are another factor why the Salateen courts have lost in importance. The author´s claim that the Public Order Courts apply “Shari’a” or “Islamic law” should have been substantiated, however, through further explanation and analysis. Neither in chapter 5 nor elsewhere in the book it is shown what the Public Order Laws actually consist of, how they differ locally, how they relate to the Criminal Act 1991 in terms of content and procedure and to what extent these laws can be said to be rooted in the fiqh. This lack of analysis leads to errors, e.g. when we are told that “Southerners […] were subjected to the hadd punishment of lashing for ‘disturbing the public order’” (p. 191). Disturbing the public order is, however, not a ḥadd crime and can therefore not entail a ḥadd punishment. Interestingly, as a result of the profound social transformation under the Bashir regime, Fluehr- Lobban observes an upsurge of “new, flexible types of marriage”, such as group, customary (ʿurfī) and “travelers” (misyar) marriages. The ʿurfī and misyar types, which both entail a considerable reduction of the woman’s rights as safeguarded in the fiqh, have been declared valid forms of a Muslim marriage by the Sudanese Academy of Islamic Jurisprudence (majmaʿ al-fiqh al-Islāmī) (p. 223). However, couples requesting a misyar marriage, the author observes, have met with resistance in the judiciary, since giving up important rights such as the right to maintenance (pp. 223f.) contradicts the Personal Status Act for Muslims 1991. How the pertinent stipulations of the Personal Status Act and the specificities of the above mentioned types of marriages relate to each other juridically is not explained in sufficient detail. Further, the majmaʿ al-fiqh al- Islāmī is described as a “collective law-making body” (p. 226). It would have been instructive to clarify its legislative competences and authority, if it has any, especially in relation to the judiciary. Important are also the author´s findings with regard to adoption and fosterage. She observed that Sudanese society, especially in comparison with her research in the early 1970s, has recently come to de-stigmatize and accept both to a much larger degree. This is again reflected by a fatwa, issued by the said Academy of Islamic Jurisprudence, sanctioning the fostering of children born out of wedlock. It is, however, not clear (and rather doubtful) whether “[…] barren women and couples can adopt […]” (p. 231) in a legal sense. No evidence is given as to the existence of an adoption law, which would indeed contradict Islamic law (p. 228). At any rate, having observed and described the triangle of social change, fatwas sanctioning this social change and the inherent friction with codified Islamic family law is in itself an important finding and can serve as a fruitful point of departure of further research.
Chapter 7 compares the Sudanese case to Islamism and Sharia application in Iran and Northern Nigeria. For obvious reasons the similarities between the Sudan and Nigeria with their mixed populations and North-South divisions are more numerous than with Shiʿi Iran, and explored in more detail. However, a number of interesting points for comparison with Iran are invoked, such as the different treatment of homosexual intercourse (liwāṭ) in the two countries, harshly punished in Iran and hardly punished in the Sudan (pp. 261f.). Equally interesting is the comparison of temporary marriage (sighe) which is part of the statutes in Iran (p. 257), whereas in the Sudan forms of temporary marriage are increasingly common, but do not fulfill the legal requirements of a valid marriage according to the Personal Status Act. In Nigeria parallel developments are more obvious, starting with the historical importance of the Maliki school of law, the dominance of Islamic Sultanates prior to colonization, to the subsequent introduction of English law. The Nigerian experience, however, is also clearly distinct from the Sudanese one, inasmuch as Sharia criminal law was reinstated state-by-state in a federal system and the execution of ḥadd punishments was relatively rapidly suspended. In both countries, with their North-South divide and mixed populations, the Sharia remains a powerful symbol of Muslim identity.
Written shortly after the 2011 referendum on Southern Sudan´s independence the concluding chapter 8 “Shari’a and the Future of the Sudanese State” sums up the findings of the book and gives an outlook of potential future developments. In her final conclusions the author highlights the achievements of the introduction of the Shari´a as she sees them. Thus, “[…] Shari’a is now more unified and better organized as a system of law, judges, and courts. It is decolonized, and established as a permanent part of Sudan’s governance […] (p. 291). It is rather doubtful that the Sudanese national version of the Sharia is a wellorganized and decolonized system. Thus, the contradiction that codification, in itself a Western technique, has been used to “better organize” the Sharia is not explained. It is true that the previous inferior status of Sharia courts has given way to an integrated judicial system. However, the Sudanese justice system in general, with its hierarchized court system, working and reporting methods, codified laws, legal personnel, etc., despite several waves of Islamization efforts, has, structurally, remained rather close to what it inherited from pre-independence days. As to the influence of the Sharia on the content of the many different codes in force, in-depth research is rather scarce. It seems therefore premature to claim successful decolonization. Whether the presence of the Sharia is a permanent one, as the author claims, is hard to predict, especially with regard to its more contested manifestations such as Islamic criminal law. The Sudanese justice system as it presents itself today is a rather hybrid system which has undergone, still clearly identifiable, influences by English, Egyptian, Islamic, customary and other laws. All of these influences and their respective weight in the system have seen considerable changes over time, mostly following major political shifts. There is, thus, little reason to believe that this process has come to a standstill. As the author herself has observed, the position of the Sharia has been weakened by the 2005 interim constitution and further by South Sudan’s independence in 2011.
In her description and analysis of Islamic law as practiced since 1983 in the Sudan Fluehr-Lobban seems to be often either misguided or imprecise. We read, e.g., that the “[…] use of diya and qisas, emphasizing equal debt, punishment equal to the offense, or compensation for the loss suffered is a salutary part of Islamic criminal law that has no real parallel in any western legal system” (p. 117). Why retribution in cases of bodily harm or homicide (i.e. the death penalty by hanging in the Sudan) should be considered “salutary” is not explained. As a matter of fact, precisely because retribution in cases of bodily harm is anything but salutary (and is in conflict with international human rights treaties the Sudan is party to), qiṣāṣ for bodily harm is not applied in the Sudanese practice of Islamic Criminal Law. Lashing for indecent dress is described as a ḥadd punishment (p. 312), while neither the fiqh nor Sudanese criminal law know such a ḥadd crime. Turkey, among other countries, is listed as a “[…] successful case of a non-controversial applied Shari’a in […] military regimes […]” (p. 293). Turkey, however, was not a military regime at the time of writing, and its legislation is free of Sharia elements. It would also have been very useful for the reader (and for the author as well) had the author clarified the terminology used. In particular, the term “Shari’a”, which is used almost exclusively throughout the book, is nowhere properly defined. “Shari’a” sometimes seems to mean the entirety of Sudanese Islamized modern codes, sometimes it refers to the fiqh, at times only the modern codification of family law (p. 28) is meant, at other times it includes the Public Order Laws. The criminal law as practiced in Sudanese history is equally described as “Shari’a”, little attention is paid to the ever changing co-existence of sultanic or state law, customary law and often idiosyncratic interpretations of the fiqh. Also, hardly any explanation is given as to the interplay between definitions and punishments on the one hand and procedure and proof on the other hand, important in the fiqh, e.g., to limit the application of the harsher corporal punishments.
The many spelling and other mistakes make for the general impression that the book has been not been properly edited and proofread. Given the steep price the publisher is charging this lack of attention is hardly justifiable. As to the bibliography it is noteworthy that references discussing the transformation of the fiqh into modern legislation are largely absent, as well as most of the Arabic language sources on the different kinds of Islamized legislation as discussed in the book. Khartoum bookshops abound with commentaries on the different codes and it is difficult to understand why these were not used at all. As to Supreme Court jurisdiction the bibliography contains the “Sudanese Judgments and Precedents Encyclopedia”, an important collection of Supreme Court case law on CD-ROM. However, there is no trace that this valuable source has been used at all. Especially with regard to family law it would have been highly instructive to learn how the Supreme Court, whose decisions are binding for the lower courts, interprets the 1991 Personal Status Act. A list of the laws discussed is missing. Despite the fact that a large number of Arabic terms are transliterated, these transliterations are most erratic and do not follow any known academic system, IJMES or otherwise.
No doubt, Shari’a and Islamism in Sudan is much stronger in describing social change than in analyzing the Sharia and its role in Sudan’s Islamist era. The author has spent many months conducting research in the Sudan and spoken to a large number of people in the legal field and elsewhere. Especially her visits to the IDP camps around Khartoum are remarkable. This is praiseworthy and could have supplemented her academic analysis. However, the book, in many instances, does not manage to make the necessary connection between field observations and the underlying legal situation. The textual base of its analysis often remains shallow. It is deplorable that a scholar with such a long experience in Sudanese matters has given the imprimatur for a manuscript that was not ready yet. Hopefully, the many factual errors, imprecisions and methodological weaknesses can be corrected in an updated edition.
Reviewed by Olaf Köndgen and published on Die Welt des Islams, Volume 56, Issue 2, pages 257 – 263.