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The Influence of the Application of Shariy' a on Crime and Public Security (The Sudan Case)

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The Influence of the Application of Shariy' a on Crime and Public Security (The Sudan Case) The Influence of the Application of Shariy' a on Crime and Public Security (The Sudan Case) by Ni`ma Karrar Muhammad The copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. A thesis submitted for the degree of Doctor of Philosophy Department of Sociology and Social Policy University of Durham August 1991 18 AUG 1992 Copyright Copyright 0 Ni`ma K. Muhammad, 1991 , The copyright of this thesis rests with the author. No quotation taken from it should be published without the prior written consent of Ni`ma K. Muhammad, and information derived from it should be acknowledged. Copyright i Declaration I hereby declare that this thesis entirely results from my own investigation, and that no part of it has previously been submitted for any degree at this, or any other, University, Signed by Student N. PILL) Ni`ma Karrar Muhammad , .-- Th/77 L ,* .. r/\„\Zr-..., Supervisor Bob Roshier Declaration ii Dedication Dedicated to my family, in memory of my father, and my nephew Hasan who sacrificed his life for the sake of the Sudan. Dedication iii Abstract Ni'ma, K. Muhammad, (1991), The Influence of the Application of Shariya on Crime and Public Security: The Sudan Case'. Ph.D. Thesis, Department of Sociology and Social Policy, University of Durham. Deterrence has been one of the basic rationales for the use of punishment by Criminal Law. An inverse relationship has been assumed leading deterrence theorists to claim that penal sanctions deter crime. In this thesis, the deterrence hypothesis was exam- ined with special attention to the Sudan's experiment, involving the application of the criminal components of Shariy`a (Islamic Law). The full enforcement of these laws in the Sudan allowed for the first time the infliction of harsh, corporal, and publicly imposed penalties for a range of crimes classified tinder three categories of punish- ments; AI hidud (Limits), .A1 qisas (retaliation) andA/ tdaziyr (discretionary). Primarily based on a theory of deterrence, the major assumption of this thesis has been that ShariYa was anticipated to reduce crime and hence create a climate more conducive to public security. The analysis utilised a victim survey conducted in Khartoum (Sudan) in 1989. Specifically the analysis involved a contrast of a sample reports about, fear, safety, and victimisation experience when Shariya was/was not in operation. The main findings were that although the ShariYa experiment did appear to reduce public fear of crime, there was no direct evidence that it reduced victimisation. However discussion of the findings in relation to western research suggests that some "objective" measures used in the latter are faulty and that there is a complex pattern of relationships behind the apparent discrepancies between fear and real victimis- ation experience. The knowledge obtained by this study provides some implications both for policy purposes and interested future researchers. At least the discussion of the results offer a useful background information for policy and future research needs. Abstract iv Acknowledgements I would like to acknowledge my debt to various contributors who in different ways made the achievement of this thesis possible. Foremost I owe my greatest gratitude to the Islamic University of Omdurman, and the Ministry of Higher Education and Scientific Research in the Sudan, the former for providing me the opportunity to pursue this course of study, and the latter for providing financial support. I must acknowledge my gratitude especially to my supervisor, Dr. Bob Roshier at the Department of Sociology and Social Policy of Durham University. Throughout his supervision he was a continuous source of help, advice, and constructive criticism. The student team from the Department of Social and Applied Statistics at the Islamic University of Omdurman played a significant role in making the basic information for the analysis obtainable. To every one of them I owe my greatest appreciation and thanks. I also obtained valuable information through direct interviews with honourables: `Awad Aljiyd Muhammad Ahmad (member of the committee for drafting the P.C. of 1983 and former Attorney General during the Shariy`a Experiment), `Umar `abd al'Ati (former Attorney General during the Transitional Government), Dr. Dafa'allah Al hag yusuf (former Chief Justice during the Shariy`a Experiment in the Sudan), Dr. Hasan Alturabi (expert in Islamic and Positive Law and leader of the Islamic Movement in the Sudan), and Hafiz al shaykh al zald (former Attorney General during the Shariya Experiment). I am certainly grateful for the precious time provided for me by each of them. I would like to express my appreciation to all the Secretaries at the Department of Sociology and Social Policy, and to the library staff at Durham University for their help and friendly co-operation. Acknowledgements v My appreciation must extend to include a number of friends and colleagues, too numerous to mention by name, who continued to provide help and encouragement. I am especially indebted, and express my deepest and sincere appreciation to my mother Sa`ida, my brother Sidiq and all my sisters for their continuous support, encouragement, and extraordinary endurance during my stay in Durham. Of course, I must not forget to thank Alpha Word Power for putting my whole effort in its current form, and above all I direct my greatest gratitude to Allah for all the help. In the end, I take the responsibility for all the shortcomings, limitations, and errors - that remain. Acknowledgements vi List of Contents including page numbers of the Appendices Copyright i Declaration ii Dedication Abstract iv Acknowledgements v List of Contents vii Abbreviations xii Map of the Sudan 3dv Introduction 1 Establishing the Field of Study 1 The Shariy`a and Legal Reform in the Sudan 3 Sudan: The Country 5 The Problem: The Sudan Case 7 Shariy`a and the Objective of this Thesis 9 Hypothesis and Methods of Research 10 Data Limitations, Plan of Analysis, and Problems of Method 12 The Choice of Khartoum 13 Thesis Organisation 14 Chapters 1. The Islamic Penal Legislation: Theoretical Background 16 Introduction to Islamic Law 16 The Concept of Shariy`a and Aspects of the Law 17 Characteristics of the Islamic Penal Legislation 19 Degrees of Obedience to the Law in Islam 33 The Basis of Criminalisation in Islam 34 Definition of Crime in Islamic Penal Legislation 38 Types of Crimes in Islam 41 Punishment in Islamic Criminal Law-meaning 46 Types of Punishments in Islam 48 The Judge's Discretionary Authority in Islam 65 List of Contents vii The Philosophy of Punishment in Islam 66 The Place of Reformation in Islamic Penal Law 74 Achieving Justice and Utility in Islamic Penal Law 75 Achieving Deterrence Through Retribution , 77 Conclusion 80 2. Literature on the Deterrent Effect of Legal Threat 82 The Concept of Deterrence 83 The Non-Deterrence Theory 84 Empirical Evidence Demonstrating the Ineffectiveness of Deterrence 85 Effect of General Prevention - A Theory of Deterrence 89 Empirical Evidence Demonstrating the Effectiveness of Deterrence 91 Summary of the Deterrence Literature . 96 Discussion of the Current State of Knowledge 97 Critics of Anti-Deterrence Research 98 Critics of Deterrence Research 103 What Guidance can be Inferred for the Current Thesis 105 The Proof of Deterence 107 3. The Islamic Penal Experiment in The Sudan 109 What has been Changed in The Sudan's Legal System 109 The Sudan's Legal and Political Heritage 109 Post Independence and the Process of Reforming the Legal System in The Sudan 114 The Turning Point Towards The Sudan's Legal Reform 118 Introduction of Islamic Laws 122 Reasons Behind the Implementation of Shariy`a 123 Taking Steps to Bring Shariy`a into Reality 131 The State of Emergency 133 Attitudes in Reaction to Shariy`a Programme in The Sudan 135 Uprising Pressure and Relaxation of Shariy`a 139 Collapse of Alnumayri's Regime 140 The Transitional Military Rule and the Shariy`a Question 141 Freezing of the Shariy`a 142 Summary and Conclusion 143 List of Contents viii 4. Hypothesis and Methods of Research 146 Shariy`a and the Assessment of this Thesis 146 Public Security 146 Research Hypothesis 146 Research Technique: An Overview of the Victim Survey 147 The Questionnaire 151 The Sample 155 Interviewers' Selection, Training, and Task 157 Data Limitations and Problems of Method 159 Method of Analysis 161 5. Data Analysis and Discussion of Findings 162 The Shariya Experiment and Fear of Crime 162 Concern about the Seriousness of Crime 162 Sub Group Characteristics and Concern about the Seriousness of Crime 163 Concern about Safety 169 Sub Group Characteristics and Concern about Safety 170 Defensive Behaviour 174 Sub Group Characteristics and Tendency to Undertake Defensive Behaviour 176 Understanding Fear Variability 179 Summary and Conclusion 180 6. Data Analysis and Discussion of Findings 181 Shariy`a and Experience of Victimisation 181 Victimisation by Legal Offence Type: A House/Shop Broken into and Property Stolen: Burglary - Satw 182 Victimisation by Legal Offence Type: Things Taken under Threat - Haraba 184 Victimisation by Legal Offence Type: Car Theft 186 Victimisation by Legal Offence Type: Physical Assault and Injury -Al jurh waraza 188 Experience of Additional Victimisation Incidents 190 Types of Additional Experience of Victimisation Affecting Other People 192 Negative Experience in Victimisation 193 Summary and Discussion of
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