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Personal Law in the Sudan--Trends and Developments Author(s): Natale Olwak Akolawin Source: Journal of African Law, Vol. 17, No. 2 (Summer, 1973), pp. 149-195 Published by: Cambridge University Press on behalf of the School of Oriental and African Studies Stable URL: http://www.jstor.org/stable/745057 . Accessed: 03/03/2011 14:05 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=cup. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Cambridge University Press and School of Oriental and African Studies are collaborating with JSTOR to digitize, preserve and extend access to Journal of African Law. http://www.jstor.org PERSONAL LAW IN THE SUDAN-TRENDS AND DEVELOPMENTS BY NATALE OLWAK AKOLAWIN1 INTRODUCTION2 The Republic of the Sudan, born on January Ist, 1956, is, like many other independent states in Africa, a political, and not an ethnic unit. It ranks high among the countries with extraordinary ethnic and cultural diversity. Besides the Arab tribes which constitute 39% of its population, there are numerous non-Arab tribes of several racial and linguistic families. According to the First Population Census of Sudan 1955/56, 51% of the population speak Arabic and there are 572 tribes. In terms of religion, 61 % of the population adhere to Islam, while the bulk of the rest of the population believes in various indigenous religions. There are, however, over half a million Christiansof different denominations,3mainly in the Southern Sudan. The Sudan has been described by one writer, and rightly so, as "a micro- cosm of Africa", providing a vital meeting point of cultures and contact between Arab and Negro Africa.4 Because of the country's ethnic and cultural heterogeneity, one of the major pre-occupations of the various national governments which have ruled the Sudan since 1956 has been the building of a modern nation out of this multitude of tribes and national groups. Though the Anglo-Egyptian Regime imposed English law in preference to Islamic and Egyptian law as the territorial law of the Sudan, it recognized pluralism in the field of personal law as a practical necessity. Sections 3 and 4 of the Civil Justice Ordinance, 1900, which laid down the law to be applied in the administration of civil justice, instructed the courts to apply "the custom applicable to the parties concerned" and Islamic law in cases where the parties were Muslims in settling suits involving personal matters. 1 Senior Lecturer in Law, University of Khartoum. 2 This article is a revised version of a paper read and discussed at the Advanced Seminar in African Law on May 16th, 1972, at the Department of Law, African Law Section, School of Oriental and African Studies, University of London. Professor W. L. Twining, of the University of Warwick, read the draft of the article and I am grateful to him for his criticism and advice. However, I remain solely responsible for both the facts and views included in this article. 3 First Population Census of Sudan 1955/56: 22 Basic Facts about the Sudanese. Karol Josef Krotki, 1958; R. Kiesel; Salzburg, Austria. Saad ed Din Fawzi: "Ethnic and cultural pluralism in the Sudan": Institut Intern. de Civilisations Diffrentes. Compte Rendu, 30, pp. 393-400. A survey on religious affiliation carried out in 1955 gave the following estimates: Muslim: 6,474,453 Animist: 2,428,703 Catholic: 162,745 Protestant: 94,981 Orthodox: 12,525 Jew: 380 Since then the population has increased almost 50o%. 4 C. D'Olivier Farran: Matrimoniallaws of the Sudan. Butterworths, London, 1963, p. viii. 149 150 Personal Law in the Sudan [1973] J.A.L. If the parties to a suit involving personal matters had no custom or law applicable to them the Courts were to act in accordance with "justice, equity and good conscience". For practical reasons, the Anglo-Egyptian Regime decided in Igoo to exclude the administration of Islamic (Sharia) personal law to Muslims from the jurisdiction of the Courts established under the Civil Justice Ordinance, 90oo, and entrusted it to the Islamic religious courts, which were formally organized in 19o2 by the Sudan Mohammedan Law Courts Ordinance, 1902. Because of the existence of two systems of Courts, the Civil and the Mohammedan Law Courts, later known as the Sharia Courts, the juris- dictions of these Courts in personal matters were first laid down in sections of the Civil and section 6 of the Sudan i3-15 Justice Ordinance, Igoo, Mohammedan Law Courts Ordinance, 1902. When the Civil Justice Ordinance, I900oo,was repealed and replaced by the CivilJustice Ordinance, 1929, sections 3, 4 and 13-15 of that Ordinance dealing with personal matters were re-embodied in sections 5, 9, 38 and 39 of the 1929 Ordinance. In addition to the basic principle of legal pluralism in personal matters laid down in sections 5 and 9 of the Civil Justice Ordinance, 1929, the independent Sudan inherited five Ordinances or laws specifically dealing with personal matters, namely: I. the Sudan Mohammedan Law Courts Ordinance, 1902, and Regula- tions made under it; 2. the Non-Mohammedan Marriage Ordinance, I926, which governs the celebration of monogamous marriages between non-Muslims; 3. the Wills and Administration Ordinance, 1928; 4. the Official Administrator Ordinance, 1928; and 5. the Public Trustee Ordinance, 1937- From 1956 there was a concerted campaign to replace English law with new laws consistent with Sudanese traditions. This culminated in the Civil Code Act, 1971, which marked a great shift away from English common law and jurisprudence. This paper is confined to the examination of trends and developments in personal law, a very sensitive field, in which law and religion are intertwined. I shall examine in particular the changes introduced into the Sudan family law by the Sharia Courts Act, 1967, which extended the jurisdiction of the Sharia Courts and the application of Islamic law in family matters to Christians and Jews; the Sharia Courts (Amendment) Act, 1970; the Civil Code Act, 1971, and the Judiciary Authority Act, 1972, which merged the Civil and the Sharia Courts into one system of State Courts. For a newly independent country seeking to consolidate its power and to unite its peoples, any measures which tend to restrict or reduce pluralism are understandably attractive. But if Sudan is to benefit from the experiences of other countries, legislation in this area of the law ought to be approached sensitively, not only because of the impact on every individual but also because of its ramifications on religious freedom and practice. This article is divided into three parts. Part I consists of an historical survey of the law up to 1967. Part II examines the trends and developments since 1956. And Part III discusses the future of Sudan personal law. I-PERSONAL LAW PRIOR TO 1967 Besides the problem of restoring law and order following the Reconquest of the Sudan in 1898 by the Anglo-Egyptian forces, the Condominium Powers had to settle the question of what law was to be applied in the Vol. 17. No. 2 Droit personnel au Soudan 151 administration of criminal and civil justice. There were three legal systems from which the choice could be made: Egyptian law, Islamic law (the state laws during the Turko-Egyptian Administration and the Mahdist Sudan respectively) and English law. English law, modified and adapted to suit the social and economic conditions of the Sudan, was adopted as the territorial law in preference to Islamic law or Egyptian law.' The application of Egyptian law in the Sudan was expressly excluded by the Anglo-Egyptian Agreement for the Administration of the Sudan, 1899, except when pro- claimed applicable by the Governor-General in a particular field of law.2 However, the Condominium Powers carefully avoided any interference with the religion and personal affairs of the indigenous people. Lord Cromer assured the Sheikhs and Notables at Omdurman on January 5th, 1899, that their religion and customs would not be interfered with. He repeated that pledge in December, 900oo.This assurance was embodied by H.H. Kitchener, the first Governor-General of the Anglo-Egyptian Sudan, in his Directive to the Governors of the Provinces. "Be careful," he wrote, "to see that religious feelings are not in any way interfered with, and that the Mohammedan Religion is respected."3 The respect for the religion and culture of the subject people was not confined only to the Islamic religion, but was also extended to other religions and cultures and became a basic policy in dealing with personal matters. This policy was enacted as law in 900o, in sections 3 and 4 of the Civil Justice Ordinance, I900, as follows: 3. "Where in any suit or other proceeding in a civil Court any question arises regarding succession, inheritance, wills, legacies, gifts, marriage, divorce, family relations or the constitution of wakfs, the rule of decision shall be- (a) Any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been by this or other enactment altered or abolished, and has not been declared void by competent authority; (b) the Mohammedan Law, in cases where the parties are Mohammedans, except in so far as that law has been modified by any such custom as is above referred to.

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