Personal Law in the Sudan--Trends and Developments Author(S): Natale Olwak Akolawin Source: Journal of African Law, Vol

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

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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 jurisdictions 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. 4. In cases not provided for by section 3 or by any other law for the time being in force the Court shall act according to justice, equity and good conscience."

Thus section 3 specifically recognized Islamic law and customary law as sources of Sudan personal law. Sections 3 and 4 of the Civil Justice Ordinance, 1900, were re-embodied (with minor amendments) in sections 5 and 9 of the Civil Justice Ordinance, 1929, which remained as the basic legislation on personal law in the Sudan until they were repealed and replaced by sections 5 and I3-36 of the Civil Code Act, 1971, which deal with the personal law of non-Muslim Sudanese and non-Sudanese respectively. Section 53 of the Sudan Mohammedan Law Courts Organisation and Procedure Regulations, 1916, governs the personal law of the Muslim Sudanese. Before the passing of the Sharia Courts Act, 1967, the framework of personal law in the Sudan was laid down in sections 5 and 9 of the Civil

1 See Michael E. Sabbav. Philip Phileppedes,H.C.-C.S.-228-I917, S.L.R. Vol. I, p. 73. 'Article 5. 3 The sixth point in Kitchener's Directive to Governors and Assistants, reproduced in J. S. R. Duncan, The Sudan, pp. 85-86. William Blackwood & Sons Ltd., Edinburgh and London, 1952. I52 Personal Law in the Sudan [1973] J.A.L. Justice Ordinance, 1929, while the jurisdiction of the Courts in personal matters were laid down in sections 38 and 39 of the Civil Justice Ordinance, 1929, and section 6 of the Sudan Mohammedan Law Courts Ordinance, 1902. I shall deal first with the jurisdiction of the Civil and Sharia Courts in personal matters.

The Jurisdiction of the Civil and Sharia Courts in personal matters The Civil Courts had jurisdiction to hear and determine all suits involving personal matters, subject to the provisions of the Civil Justice Ordinance, 1929.1 According to section 38 the Civil Courts were "not competentto decidein a suit to which all parties are Mohammedans,except with the consentof all the parties, any question regarding succession, inheritance, wills, legacies, gifts, marriage, divorce, family relations or the constitution of wakfs". [Emphasis added.] Until the repeal of the Sudan Mohammedan Law Courts Ordinance, 1902, in 1967, by the Sharia Courts Act,2 the Civil Courts had jurisdiction to hear and determine suits involving personal matters in which: (i) all the parties were non-Muslims;3 (ii) one of the parties was a non-Muslim;4 (iii) all the parties were Muslims provided all of them gave their consent in writing.5 The Civil Courts in settling personal matters of Muslims would, acting in accordance with section 5 (b) of the Civil Justice Ordinance, 1929, apply Islamic law according to the Hanafiya School6 (section 53 of the Sudan Mohammedan Law Courts Organisation and Procedure Regulations, 1916) as modified not only by the Judicial Circulars and Memoranda issued by the Grand Kadi but also by custom or native law and custom. Under section 5 (b), and in practice, Islamic law was supposed to be applied as modified by customary law or native law and custom,' so if a conflict arose in the Civil Court between the Islamic law and customary law, the rule of customary law would prevail in accordance with the Civil Justice Ordinance. The issue of conflict between Islamic law and customary law has not yet come before the Courts and it remains a lively source of speculation and legal controversy, because there are those who maintain that Islamic law, being a divine law, is immutable and cannot be modified by custom.

1 Ss. 2 33-39- 1967 Provisional Order No. 17, confirmed and became I967 Act No. 39. 3 S. 6 (a) and (b) of the Sudan Mohammedan Law Courts Ordinance 1902; Samuel Mikhail v. GeorgeMikhail, A.C.-A.P.P.-21-1919; Dalijee Ramjeev. TerbonRamjee, A.C.-Rev- I8- 942; and GraziellaChrissaJides v. GeorgeChrissafides, H.C.-C.S.-86-I95o. 4 S. 6 (a) and (b) of the Sudan Mohammedan Law Courts Ordinance, I902; Farouza Gindi Habashi and Anotherv. Luga Habashi and Others,H.C.-C.S.-3-1949; Farida Fouad Nakhla v. SameerAmeer (I957), S.L.J.R.21; and Nicolas StephanouStergiou v. Aristea Nicolas Stergiou (g1963),S.L.J.R. 182. 5 S. 38 of the Civil Justice Ordinance, 1929; Heirs of AbdelRahim Idris v. Fatma bint Abdel Rahim, A.C.-Rev-39-1943; RaginallaAhmed Fadlalla v. Abdel Gazim Hasan and Ragab Murgani (1959), S.L.J.R. 6o, and Heirs of TayebEl Melik v. AdmadiyaZawya (1962), S.L.J.R. 135, 137- 138. 6 S. 53 of the Sudan Mohammedan Law Courts Organisation and Procedure Regulations i916. 7 See Mohammed Ahmed Abu Rannat: "The relationship between Islamic and customary law in the Sudan" [1960] J.A.L. 9, at p. 0o. Vol. 17. No. 2 Droit personnel au Soudan 153 The jurisdiction of the Sharia Courts was laid down in section 6 of the Sudan Mohammedan Law Courts Ordinance, 1902, as follows: "The Sudan Mohammedan Law Courts shall be competent to decide- (a) Any question regarding marriage, divorce, guardianship of minors or family relationship provided the marriage to which the question related was concluded in accordance with Mohammedan Law or the parties are all Mohammedans. (b) Any question regarding wakf, gifts, succession, wills, interdiction or guardianship of an interdicted or lost person, provided that the endower, donor or the deceased or the interdicted or lost person is a Mohammedan. (c) Any question other than those mentioned in the last two subsections provided that all the parties, whether being Mohammedan or not, make a formal demand asking the Court to entertain the question and stating that they agree to be bound by the ruling of Mohammedan Law."

It is clear from the foregoing that the Sharia Courts had only restricted jurisdiction, strictly confined to matters specified in section 6 and no more. They had jurisdiction under section 6 (a) over questions regarding family matters if the marriage to which the question related was concluded in accordance with Sharia law or if the parties were all Muslims. Any marriage concluded in accordance with the Islamic law, regardless of whether the parties were Muslims or not, conferred jurisdiction on the Sharia Courts. There was nothing, however, under section 6 that excluded the Civil Courts from entertaining questions related to marriages celebrated in accordance with Islamic law between a Muslim and a non-Muslim or between two non-Muslims. In the event of a clash the Court of Jurisdiction would have to decide which system of Courts should have the jurisdiction to entertain the suit. The Sharia Courts had jurisdiction over any question enumerated in section 6 (b) above, provided the endower of the wakf, the donor, the deceased, the interdicted, or lost person was a Muslim. The Sharia Courts could acquire jurisdiction in non-personal matters under section 6 (c) if all the parties, whether Muslims or not, made a written demand signed by them asking the court to settle the dispute between them. They were required to state in writing that they agreed to be bound by the ruling of Islamic law, the only law administered by the Sharia Courts. Neither the Civil Justice Ordinance, 1929, nor the Sudan Mohammedan Law Courts Ordinance, 1902, dealt adequately with the complications introduced by the existence of two sets of Courts. The operative term "Mohammedan" or Muslim, on which the jurisdiction of the Sharia Courts depended, was not defined by either of the Ordinances. In spite of the provisions of both Ordinances regulating the jurisdictions of the two sets of Courts, the jurisdictions of the Civil and the Sharia Courts conflicted on a number of points. Though the question of "who is a Muslim" did not come up before the Courts, it was, and is, one of the major lacunae in the Sudan personal law. A suitable definition put forward by Sayed Ameer Ali and which has been accepted by the Indian Courts is that: any person who professes Islam (in other words, accepts the unity of God and the prophetic character of Mohammed) is a Muslim.' This definition could be considered as containing

a Sayed Ameer Ali: Mohammedanlaw; Tagore Lectures, 1884, Vol. II, 22, 5th Edition, 1922. See also Abrahamv. Abraham(1863), 9 Moore's Indian Appeals 195 (p. 199, Indian reprint), and Narantakathv. Parakkal (1922), 45 Madras 986. 154 Personal Law in the Sudan [i973] J.A.L. the indispensable minimum; as Fyzee puts it, "a belief short of this is not Islam, a belief in excess of this is for the Law Court a redundancy".1 Unless the contrary is proved, the Courts are bound to presume that a person born of Muslim parents is a Muslim. This simple formula would not, of course, work in case of mixed marriages. However, if the precedent in Stergiouv. Stergiou2is followed, the Courts would hold that a child is presumed to belong to the religion of the father. But would the Sharia Courts have held the same view ? There is no doubt that there was duplication of jurisdiction- (i) in cases of marriage, divorce and other matters involving family relations, if the parties were not all Muslims or one was a non-Muslim but the marriage was concluded in accordance with the Islamic law; (ii) in cases of succession to the estate of a deceased Muslim where non- Muslim parties were involved; and (iii) where all the parties consented to the jurisdiction of the Court which would not otherwise have jurisdiction. The duplication of jurisdiction was a serious matter because until the issue of jurisdiction was settled, it was not possible to say what law would be applied. There was, however, a Court of Jurisdiction which was entrusted with the resolution of conflicts ofjurisdiction between the Civil and the Sharia Courts. Before 1966, the Court of Jurisdiction was composed of the Chief Justice, as the President; the Grand Kadi, two Judges of the Civil High Court and one Judge of the Sharia High Court. The Court was to make its decisions by majority vote.3 This Court never met.

Law to be applied in personal matters The Law to be applied in settling disputes and suits involving personal matters was laid down in sections 5 and 9 of the Civil Justice Ordinance, 1929. Section 5 stated: "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 any other enactment altered or abolished and has not been declared void by decision of a competent court; (b) the Mohammedan law (Islamic law) in cases where the parties are Mohammedans, exceptin so far as that law has beenmodified by such custom as is abovereferred to." [Emphasis added.] Section 9 provided: "In cases not provided by this or any other enactment for the time being in force the Court shall act according to justice, equity and good conscience." Islamic law as administered in the Sudan Before examining the provisions of section 5 (a) and 9, I shall deal first with personal law of Muslims. The provisions of section 5 (b) are clear.

1 Fyzee A.A.A.: Outlineof lohammedanlaw; p. 59, 3rd Edition, O.U.P. 2 Skinner v. Orde 14 M.I.A. 309: an Indian case (1963), 182, infra. cf. (1871), in which it wasS.L..J.R. held that the child takes the religion of the father. 3Article 93 of the Sudan Transitional Constitution, 1956, as amended in 1964. Vol. 17. No. 2 Droit personnel au Soudan 155 In cases involving the personal affairs of Muslims, the Sharia Courts and the Civil Courts, after obtaining the written consent of all the parties, had to apply Islamic law. Though the majority of the Sudanese Muslims are Malikis the Sharia Courts administer Islamic law in accordance with the Hanafiya School, subject to any modifications that might have been introduced by the circulars and memoranda issued by the Grand Kadi. Section 53 of the Sudan Mohammedan Law Courts Organisation and Procedure Regulations, 1916, which lays down the law to be applied in settling personal matters of Muslim states: "Decisions of the Mohammedan Law Courts shall be in accordance with the authoritative doctrines of the Hanafiya Jurists except in matters in which the Grand Kadi otherwise directs in a judicial circular or memorandum in which case the decisions shall be in accordance with such other doctrines of the Hanafiya or other Mohammedan Jurists as are set forth in such circular or memorandum."

The Grand Kadi has so far issued 57 circulars dealing with various aspects of Islamic personal law.1 Because of the alterations and modifications they have introduced into the Islamic law as interpreted by the Hanafiya School, these circulars have made the Islamic law administered by the Sudan Sharia Courts distinctively Sudanese in character. The Grand Kadi has, through the use of this important power, introduced important reforms in Islamic personal law which have more or less brought that law into accord with the views of modern Islamic scholars and thinkers.2 The juristic basis of reforms carried out in Islamic personal law included talfid (or "patching" between different Schools of Jurists) and i'tihad or contemporary interpretation of original sources of Islamic law. The Judicial Circulars issued by the Grand Kadi are often drafted in the most general terms indicating which Juristic School should guide the Sharia Courts on the particular aspects of personal matters.

"Custom applicable to the parties concerned" Apart from the decision of LINDSAY, C.J., in Bamboulis v. Bamboulis in 1953,3 which gave a narrow interpretation of the term "custom" as meaning "local custom originating by usage in the Sudan", the Sudan Courts have consistently interpreted "custom" under section 5 as referring not only to customary law or native law and custom but also so as to include ecclesiastical or national law common to the parties. This particular question was settled in 1932 by the Court of Appeal when that Court accepted the argument that "custom" under section 5 included

1 The most recent circular was issued on I I.4.I970 and deals with wakfs or Islamic trusts. Some of the circulars have been repealed or incorporated in other subsequent circulars. 2 See J. N. D. Anderson: (i) "Recent developments in Sharia law in the Sudan", S.N. & R. Vol. 31, pp. 82-104. (ii) "The modernisation of Islamic law in the Sudan" ( 196o. S.L.J.R. 292. 3 1953/54 Cases in the Court of Appeal and the High Court, p. 76, A.C.-Rev-58-53. See also A.C.-A.P.P.-5-I944 and Khtm-H.C.-C.S.-62-195o. Though there could be said to be historical support for this interpretation because of the marginal note to s. 3 of the Civil Justice Ordinance I9oo, this note was not retained under s. 5 of the Civil Justice Ordinance, 1929. For criticisms of Bamboulisv. Bamboulis, see Farran, MIatrimoniallaws of the Sudan, pp. 89-91; Kattanv. Kattan (1957), S.L.J.R. 53; Goldenburgv. Goldenburg(I~60), S.L.J.R. 36; Stephanou Stergiou v. Aristea .Nicolas Stergiou (1963), S.L.J.R. 182, 183-184, and Amal Fakhri.NicolasSaad v. Farez ShukriBishara (1968), S.L.J.R. 99. 156 Personal Law in the Sudan [1973] J.A.L. non-customary personal law.x But it was GORMAN,J., in 1934, in a Court of Appeal judgment concurred in by OWEN, C.J., and HALFORD, J., in Abdalla Charchafliav. Marie Bekyarellis2 who dealt definitively with the interpretation of the expression "custom applicable to the parties concerned". The suit which came to the Court of Appeal involved separation proceedings to which the parties were members of the Armenian Catholic Church. Having held that the Civil Courts have jurisdiction to entertain separation proceedings, because these fall within divorce and family relations as enumerated in section 5 of the Civil Justice Ordinance, he went on to deal with the law applicable in this kind of suit: "The secondpoint is this:granting the Court has jurisdiction,what law is to apply in suits of this kind? Here section5 is definitelyin point, and the Court is by this sectiondirected in a suit involvingpersonal status or family relationshipto apply any custom relatingto such mattersapplicable to the partiesconcerned. Such customor body of customsis usuallyreferred to as the personallaw of the parties.It has been decidedin this court that where the parties are domiciled in a country other than the Sudan, which possesses a national law of personal status, such law is to be regarded as a body of the customs applicable to the parties within the meaning of section 5: the law of domicile is in these matters adopted by the law of the Sudan as their personal law. But where the parties are domiciled in the Sudan, or in a country with no national law of personal status, then, it has been held it is the customs of the religious community to which they belong which are to be looked to, and which comprise personal law." The term"custom" under section 5 of the CivilJustice Ordinance referred thereforeto the personallaw of the parties.Where the partieswere Sudanese or nationalsof a countrywith no nationallaw of personalstatus, it was the customsof the religiouscommunity or the customarylaw of the tribe to which they both belonged, which comprisedtheir personallaw. So under section5 the personallaws applicablewere customarylaw, Islamiclaw, the religiouslaw of any-community in the Sudan and, in the case of foreigners not domiciledin the Sudan, their nationallaw. The rulesof customarylaw or any personallaw were to be appliedunder section 5 (a) provided they, in the opinion of the Civil Courts, (i) were not contrary to justice, equity and good conscience; (ii) had not been altered or abolished by any enactment in force; or (iii) had not been declared void by a decision of a competent Court. Limitations (ii) and (iii) are obvious and do not need much comment. If a rule recognized by a certain religious law, customary law or foreign law had been abolished or altered by the Civil Justice Ordinance or any other enactment in force or declared void by a decision of a competent Court, it would not be applied or enforced by the Civil Courts. In case of foreigners the Civil Courts applied the personal law of the parties, subject to alterations that had been introduced by their national legislatures and decisions of their national courts. It is obvious that "justice, equity and good conscience" under section 5 (a) was used in a different sense from that under section 9 of the Civil Justice Ordinance, 1929. Whatever the meaning of this nebulous phrase, it has a cases negative r61e in section 5 (a) and a positive one in section 9. In both judicial legislation was authorised. Section 9 authorised the Courts to fill in

1 Heirs of Alariam bint Boulos Saleeb v. Heirs of Boulos Saleeb, A.C.-Rev-x7-1932, S.L.R. Vol. II, 4. 2 A.C.-APP-I2-1934, S.L.R. Vol. II, I29. Vol. 7. No. 2 Droit personnelau Soudan 157 the gaps in the law, provided their decisions were just, equitable and in accordance with good conscience. Under section 5 the Courts were authorised to refuse to enforce a rule of personal law, which they considered unjust, inequitable or not in accordance with good conscience.

Application of Justice, Equity and Good Conscience under section 5 (a) Though the Civil Courts had been reticent in using their power under section 5 (a) to disregard any provision of personal law which in the opinion of the Court was contrary to "justice, equity and good conscience", they did not hesitate to do so when the circumstances dictated it. The Court of Appeal in 1932 in Heirs of Mariam Bint Boulos Saleeb v. Heirs of Boulos Saleebx was asked to declare contrary to justice, equity and good conscience a rule of Coptic personal law which excludes the children of a daughter who predeceased her father from inheriting from the grand- father. The Court refused to do so. CUTTER,J., in a judgment concurred in by OWEN, C.J., stated: "It was agreed that the word 'custom' in section 5, Civil Justice Ordinance includes law, and that accordingly, if by applying a law a result is arrived at which is contrary to justice, equity or good conscience, we ought not to apply such law. But is the application of this law contrary to justice, equity or good conscience ? The exclusion of the heirs of a deceased daughter is not peculiar to Coptic law. It is a rule in many other countries and is also the rule in Mohammedan law. It would, I think, be very dangerous to hold that merely because the rule does not apply in English law that we therefore ought to exclude it."

However, it is the decision of the Court of Appeal in 1944 in Maria ConstantineCambouris v. ConstantineProcos2 which gave a positive ruling on the power of the Civil Courts to reject application of a rule of personal law as being contrary to justice, equity or good conscience or public policy. In this case, the plaintiff instituted a suit to declare that he was the natural father of a child born to defendant during her marriage to another man and for an order for custody of the child. The parties to the suit were Greeks and the law applicable was Greek law. Article 1465 of the Greek Civil Code permits this type of claim in certain exceptional circumstances, where, for instance, it is proved that the husband is impotent or was absent when the child was conceived and disavows the child. Though none of the exceptional circumstances was proved by the plaintiff and his suit could have been dismissed on that ground alone, the Court of Appeal held that when the personal law of the parties was applicable under section 5 or section 9 of the Civil Justice Ordinance, the Sudan Civil Courts were not bound to apply that law, where for reasons of public policy or because it is sought to enforce unusual rights or remedies or otherwise on a view of justice, equity or good conscience, there exist good and sufficient reasons not to do so. BENNETT, C.J., in a spirited judgment concurred in by EVANS and PLATT, JJ., made the following declaration: "It was agreed by the parties in the Court below that their rights in issue in the suit were governed by Greek law, that, being the personal law of both parties

1 A.C.-Rev-17-1932, S.L.R. Vol. II, 4. 2 A.C.-APP-5-1944. 158 Personal Law in the Sudan [1973] J.A.L. and of the defendant's husband. Where the rights in issue in a case are not covered by any other provision of the law of the Sudan, the law to be applied is governed by the Civil Justice Ordinance, I929, section 5 or 9 . . but, whether the personal law of the parties is applicable, either as a custom under section 5 (a) or pursuant to the generally recognized principles of private international law, under section 9, that application is, in either case, subject to the principles ofjustice, equity and good conscience. The Court is not bound to apply the personal law in any case where, for reasons of public policy, or it is sought to enforce unusual rights or remedies or otherwise in justice, equity and good conscience, there exists good and sufficient reason not to do so. In my opinion, the respect due to the institution of marriage and the conservation of the family demands, as a matter of public policy (except possibly where it is clearly otherwise in the overwhelming interest of the child) that no man should be able, against the will of the husband and wife, to come forward and claim either the paternity or the custody of a child born to a wife during the continuance of the marriage. This is so whether or not he can prove beyond doubt that he is in fact the child's natural father. To decide otherwise would, as it seems to me, strike at the root of the marriage tie and expose the family to disruptive action at the whim of a person not a member thereof. If the child is branded as a bastard or is given over to the custody of a stranger to the family, the danger to the continuance of the marriage tie and the holding together of the family unit is obvious. It may be that, where some other legal right or interest is the bonafidesubject of a suit, and the legitimacy or otherwise of such a child is relevant to the existence of such right or interest, the Courts will allow the question of legitimacy to be raised, and will decide it, but apart from such a case, it is for the husband in such an eventuality as is here in question to decide whether the marriage tie and the preservation of the family unit shall continue or whether he will imperil both by disavowing the child. No such overwhelming interest of the child or any other legal right or interest such as would justify interference with the state of things which policy appears to me to demand was alleged in the plaint upon which this action was founded and, in my opinion, the plaint should have been dismissed as showing no cause of action."

The Court of Appeal in 1946 in iMoneib Constantine v. Zakie Elias Tifaya' affirmed the declaration or view stated by BENNETT,C.J., in the above- mentioned case when it refused to follow strictly the personal law of the parties. The suit in this case involved a claim by separated spouses for the custody of children, a girl of nine years and a boy of six years. The parties being members of the Greek Catholic Church, the law applicable was the Greek Catholic Church canon law, which states that the children shall stay with their mother until the girl is aged nine and the boy seven years, at which age each is transferred to the custody of the father, unless either parent is quite unfitted to undertake the custody. The Court found that neither was unfitted to have the custody of the children; nevertheless it.refused to follow the personal law of the parties and gave a decision dictated solely by the interest of the children. CUMINGS, C.J., stated: "It will be seen that in the Court below each party relied on his or her own rights against the other and paid little regard to the rights and interests of the children. This is to invert what the Sudan Civil Courts will do, for they, in reaching a decision consonant with justice, equity and good conscience have regard primarily to the interest of the children, whatever the custom applicable may have to say on thd matter. Viewing this case with the interests of the children primarily in mind, we consider that it would be cruel to separate the

I A.C.-APP-I 3- 946. Vol. 17. No. 2 Droit personnel au Soudan 159 children, and though neither parent may be ideal, yet neither has been shown to be so bad as to be unfit to look after the children. It is in the interest of the children to keep in close touch with parents, so far as it is possible when the parties are separated. At the present time it is impossible to allow the father to have the custody of the children because he has no suitable home for them. . .. In our opinion therefore the wife should be granted the custody of the children, not during their minority, but until further order of the Court, so that if circumstances should change, further application can be made... but the husband must be given reasonable right of access to the children by the wife. ... The wife must realize that if she does not allow the husband such reasonable access, she may find that the Court will feel obliged to remove custody from her."

It is apparent from the above decisions of the Court of Appeal that the unfortunate dictum of LINDSAY,C.J., in Bamboulis v. Bamboulis in 1953 which brought confusion into the Sudan personal law, to the effect that "custom" under section 5 (a) referred to "custom originating by usage in the Sudan, and is not applicable to imported rules or laws of foreign origin" because "the ecclesiastical rules of a Church are.. . incapable of being altered, abolished or declared void", is not legally or factually correct either in England or Sudan. In England, the canon law of the Church of England can be, and has often been, altered or abolished by statute.' In spite of the decision in Bamboulis v. Bamboulis, the Court of Appeal in I955 in Administrator-Generalv. Thoraya Ibrahim Salam2 declared a rule of the Coptic succession law void as being contrary to justice, equity and good conscience. Following the decision in MariamBint BoulosSaleeb v. Heirs of BoulosSaleeb the Civil Courts exercised what could be said to amount to extreme caution in invoking the repugnancy clause under section 5 (a) of the Civil Justice Ordinance. This is understandable because any unscrupulous use of such power would directly constitute an undue interference with religious freedom and practice of the parties which were supposed to be protected by section 5 itself. The Court of Appeal in TheodorosJ. Kritharisand othersv. Estate of John D. Kritharis3 was asked by the plaintiffs to declare unjust, inequitable and contrary to good conscience the Greek law, which has no provision entitling illegitimate children, excluded from their father's will, to share in his estate when there are also legitimate children. It rejected the argument. HAYES, J., in a judgment concurred in by other members (M.A. ABu RANNAT, D.J., and W.C. McDowall, Esq.), states: "We cannot admit this argument. Civilisation is built upon the family, that is the legitimate family, and family security would be undermined if the legitimate heirs had always the possibility of losing part of their inheritance to natural children of their father, of whom they may have known nothing. It is hard on the natural children, but it is better that they should suffer than family life would be injured."'

Even in a pitiful case and situation, as provided by the facts in Habashi Rizgalla Habashiv. Administratorof theEstate of Rufail Habashi5both the High Court and the Court of Appeal refused to disregard the personal law of the

1 See, e.g., Act for the Submission of the Clergy. 2 A.C.-APP-41- 955. 3 A.C.-APP-I 4- 4f this decisionI947" with that of ranni Krithariv. Mariam Bint Basta, infra. s A.C.-APP-i6-I947. 3 I6o Personal Law in the Sudan [1973] J.A.L. parties under section 5 (a) as being contrary to justice, equity and good conscience. The plaintiff's father, a Christian Copt, was married by the law of his Church in I86o to a woman of the same faith and by whom he had a son, Rufail. During the Mahdia, he was forced by order of the Khalifa Abdullahi, the then Ruler of the Sudan, in common with other Christians, to profess the Islamic religion and to marry a second wife. These forced converts were known as "Masalma". Accordingly, the plaintiff's father contracted marriage under Islamic law with a certain Batoul, who bore him two sons, the plaintiff and Atalla, while his first marriage was still subsisting. Atalla was born during the Mahdia, while the plaintiff was born after the Mahdia. He was said to be eight months old when his father died in 900oo. In 190l a Coptic priest baptised the children of the Coptic Masalma. In 1917 the plaintiff, his mother and brother did not object to the appointment of Rufail Rizgalla as the administrator of the estate of Rizgalla Habashi and agreed they had no right of inheritance. On the death of his half-brother, Rufail Rizgalla, the plaintiff, brought an action in the High Court claiming a declaration that he was a lawful heir to Rufail and entitled as such to share in his estate. The High Court held that because all the interested parties were Copts, Coptic personal law governed their rights. Since the Coptic personal law of marriage was monogamous, the plaintiff was an illegitimate son unless he could point to a dispensation making legitimate the offspring of forced marriages such as between his father and mother. There being no evidence produced, the plaintiff's claim was dismissed. In spite of the doubt of the Court of Appeal as to whether, in the circumstances imposed by the local ruler, the second marriage was illegal, it nevertheless upheld the decision of the High Court, because it was "clear that in the eyes of the Coptic Church the plaintiff [who] was probably conceived, and certainly born, after the Reconquest, was illegitimate". This was indeed a case in which there was obvious hardship. It is true that the devout Christians were not really placed in any great difficulty, for they refused to cohabit with the second wife, and, having married her by Islamic law, they divorced her within a month or two under the wide provision of that law. But many Christians conformed and for those who were married, and to whom the order was particularly directed, in order to demonstrate whether the Masalma were practising Islam, this constituted compulsion for which the Coptic Church should have excused them and granted a general dispensation, making children born of forced marriage legitimate. The author has no evidence as to how other Christian Churches dealt with similar cases. But whatever one's moral judgment, the laws of the Khalifa Regime were then the law of the land and rights of the plaintiffs should have been determined in accordance with the laws of the Sudan at that time. In my opinion, the marriage of the plaintiff's father to his mother was valid at the time and therefore he and the offspring of that marriage were legitimate, regardless of reconversion to Christianity. The plaintiff's father could have divorced his mother when he resumed practice of the Christian religion, but such action would not by itself render his marriage void ab initio or operate to make the offspring illegitimate. It would indeed appear just, equitable and in accordance with good conscience that the Coptic law was disregarded in this particular case or in similar cases. This could have been done not only under section 5 (a) of the CivilJustice Ordinance, but purely on the objective ground that the marriage of the parents of the plaintiff at the time was valid according to the law of the Sudan at the time it was contracted, and could not be invalidated by Vol. 17. No. 2 Droit personnel au Soudan 16 subsequent law or resumption of Christian practice under the Anglo- Egyptian Regime following the Reconquest. I agree that the father of the plaintiff was compulsorily converted and refusal might have meant his death, but it is another thing to say that children born of forced second marriages that were lawful when contracted are illegitimate. A pagan married to two or more wives may be converted to Christianity, which recognises monogamous marriage. He may divorce the other wives and remain with one only, but his new personal law would not invalidate his marriage to the other wives under his pagan law, and all the children born of such marriage before his conversion to Christianity and before divorce are legitimate and entitled to succeed him together with other children born after conversion to Christianity. A similar point of law was handled by the Court of Appeal in 1926, in my opinion successfully, in MIariamAbdulla rousif Abagi v. Administratorof the Estate of Abdalla rousif.' Abdulla Yousif Abagi died in 1925 and was at the time of deatha member of the Greek Catholic Church. The Vice-Patriarch of the Greek Catholic Church in the Sudan granted a certificate, stating that the sole legitimate wife of the deceased was a certain Nazla George Stambulia and that she and his seven children by her were his only heirs. The appellant (plaintiff) Mariam Abdulla Yousif Abagi, instituted an action in the High Court, claiming to be an heir of the deceased. She alleged that she was the daughter of the deceased by an Abyssinian woman, named Birilli; that the deceased was a Mohammedan during the Mahdia; that the deceased while a Mohammedan contracted an alliance with Birilli, which was a lawful and recognised form of alliance according to Mohammedan law; and that she was therefore the legitimate daughter of the deceased and entitled to inherit from him. The Court took no evidence except that of George Abagi, a brother of the deceased. His evidence supported the story of the appellant, but the Court, relying on the certificate of the Vice-Patriarch, gave judgment excluding the appellant from the inheritance. The Court of Appeal held that the certificate of the Vice-Patriarch was not a judgment of a Court which has jurisdiction in the Sudan, and that the registers of the Omdurman Church, mentioned by the Vice-Patriarch, were not conclusive evidence before the Civil Courts of the legitimacy or illegitimacy of the persons referred to therein. It was wrong, therefore, that the High Court followed and accepted the certificate of the Vice-Patriarch instead of itself deciding the issues of fact and law involved in the case. The Court of Appeal then ordered retrial and that at the retrial the following issues were to be framed and decided:

"(i) Was the deceased a Mohammedan or a Christian at the time when he contracted his alliance with Birilli? And when was the appellant born ? (2) What was the nature of the alliance ? (3) Having regard to the circumstances in which the alliance was contracted, was it such that the offspring thereof are entitled to inherit from the deceased? If the Court decides on issue (i) that the deceased was a Mohammedan, then it must take the opinion of the Sharia Court on the following points: what were the relations between the deceased and Birilli, and whether, as a result thereof, the daughter of Birilli is entitled

1 A.C.-APP-26-1926, S.L.R. Vol. I, 297. 162 Personal Law in the Sudan [1973] J.A.L. underMohammedan law to inheritthe estateof the deceasedor any part thereof?"x It is clear from the issues set out above for retrial, that the issue of illegitimacy or legitimacy had to be decided in accordance with the law under which the marriage was contracted. Unfortunately, the author was not able to find the judgment on retrial. But it is obvious from the direction of the Court of Appeal that if it was proved that the deceased was a Mohammedan when he contracted an alliance with Birilli, the question of legitimacy was to be determined in accordance with Islamic law, regardless of the personal law of the deceased at the time of death. If, according to Islamic law, the alliance contracted between the deceased and Birilli was lawful and recognised by Islamic law, and that offspring of such a union were legitimate, the plaintiff (appellant) was entitled to inherit from the deceased. It can be argued that it is not in the interest of public policy to hold that a man by changing his religion can, by operation of his new personal law, nullify or invalidate marriage or personal relations that were lawful before his conversion. The decision of the Court of Appeal in Habashi Rizgalla Habashiv. Ad- ministratorof the Estateof Rufail Habashiwas therefore not only wrong in law but was also given per incuriamof the Court of Appeal decision in Mariam AbdullaYousif Abagi v. Administratorof the Estateof Abdullarousif. As I have stated earlier, the second marriage of Rizgalla Habashi was lawful according to the law of the time, and any offspring born of such union before Rizgalla Habashi reverted to the Christian religion, following the Reconquest of the Sudan, were legitimate and entitled to inherit from him. Unless it was proved therefore that the plaintiff, Habashi Rizgalla Habashi, was born a long time after his father reverted to Christianity, he was entitled to inherit not only from his father but also from his half-brother, Rufail Habashi. As a result of the legal pluralism enshrined in section 5 of the Civil Justice Ordinance, Sudan personal law recognised both monogamous and polygynous marriages. It also recognised five valid forms or types of marriages, namely marriages contracted in accordancewith (I) Islamic law; (2) the Non- Mohammedan Marriage Ordinance, 1926; (3) the religious law of any non- Muslim community in the Sudan; (4) tribal customary law; and (5) any marriages contracted otherwise. The fifth category, "marriages contracted otherwise", catered for marriages celebrated outside the Sudan which according to the rules of private international law would be recognised by Sudan Courts as valid provided the formalities of the lex celebrationiswere complied with and the requirements of the personal laws of the parties were met as regards substance.2 Except for the Muslim community, which had separate courts for the administration of Islamic personal law, the Civil Courts in suits involving personal matters between non-Muslims applied the personal law of the parties concerned under section 5 and, if they had no personal lawin common, the Civil Courts acted in accordance with justice, equity and good conscience under section 9.

Application of Justice, Equity and Good Conscience under section 9 If the parties to a suit involving personal matters had no personal law 1 Ibid., p. 299. 2 See Farran: op. cit., pp. 129-141. Vol. 17. No. 2 Droit personnel au Soudan 163 common to them because, for instance, they adhered to two different religions, the Civil Courts were instructed by section 9 of the Civil Justice Ordinance to "act in accordance with justice, equity and good conscience". This meant in practice that the courts had to reach a decision which they considered just, equitable and in accordance with good conscience depending on the facts and the circumstances of the particular case. There are not many reported cases involving personal matters decided either under section 4 of the Civil Justice Ordinance, I9oo, or section 9 of the Civil Justice Ordinance, I929. However, in the several cases decided in accordance with justice, equity and good conscience, the Civil Courts did not apply English law as a matter of a general policy in domestic matters in the disguise of "justice, equity and good conscience" as was the case in other fields of the law.' Except for the decision of the Court of Appeal in Bamboulis v. Bamboulis which was delivered per incuriam, the Civil Courts did not equate English law with justice, equity and good conscience in personal matters. If a rule of English law was adopted as the basis of a decision, it was applied on its own merits. One of the reported cases decided under section 4 of the Civil Justice Ordinance, oo900,is ranni Krithary v. Mariam Bint Basta.2 The appellant in this case, a Greek national, lived with the respondent, an Abyssinian, as his mistress for several years and three children were born out of this union. On desertion of the appellant, the respondent instituted an action for maintenance of the children and the District Judge decreed in her favour. The appellant appealed to the High Court on the ground that a Sudan Court has no jurisdiction on matters affecting his personal status, and, assuming the Court has jurisdiction, Greek law prohibits an action to prove the paternity of an illegitimate child. The High Court, upholding the decision of the Court of first instance, held that the Sudan Courts had jurisdiction and that the matter was governed by lex fori. There being no custom applicable to the parties which could be applied under section 3 of the Civil Justice Ordin- ance, I9oo, and there being no ordinance or relevant authority, the Court had to decide the case on the principles ofjustice, equity and good conscience. After making a survey of various legal systems, the Court found that there was not any general consensus of opinion among the legislators of the world in favour of or prohibiting such an action. Following the English law, the Court held that it is no defence that the lex patriae of one of the parties prohibits such an action. DUN, C.J., stated: "Against the decree we have on the one side the Roman civil law and practically the whole of modern European law and Muslim law; in favour we find on the other side the Roman Common law, the Dutch law, English and Scottish law, the law of most states of the U.S.A. and the greater part of the British Empire including some parts which were once French, Swiss law and the law of certain Hindu castes. There is therefore not any general consensus of opinion amongst legislators of the world in favour of one view rather than the other. I know of no other previous decisions in the Courts of this country to guide me.

' See AntoniousSaad v. Aziz Kfouri, A.C.-APP-5o-I919, S.L.R. Vol. I, pp. I I8-Iig; Mansour El Shusehi and Othersv. Abu Fatima Sharif, A.C.-A.P.P.-3-192o, S.L.R. Vol. I, 147, 150-1 52; Natale Olwak Akolawin "The courts and the reception of English law in the Sudan; a case study of the application of 'Justice, Equity and Good Conscience' under the Sudan Civil Justice Ordinance" (1968), S.L.J.R. 230, and Zaki Mustafa, The common law in the Sudan,Oxford, Clarendon Press, 1971. 2H.C.-APP-9-I918, S.L.R. Vol. I, 91. 164 Personal Law in the Sudan [ 973] J.A.L. I feel impelled by two considerations to decide in favour of the decree: one is that it seems to me to be contrary to justice that a man may take a woman as his mistress and when he gets tired of her cast her and the children she has borne him adrift. The other is that a principle which is accepted over the greater part of the British Empire with its varying conditions of life seems to me to be a suitable one to follow in the Sudan."'

Another case which should have been decided under section 9 but was wrongly decided under section 5 of the Civil Justice Ordinance, i929, is Farouza GindiHabashi and Anotherv. Luga Habashiand Others,2in which the High Court held that conversion to another religion would not relieve a party from the obligation to maintain his relatives. A more recent case decided in accordance with section 9 is Nicolas StephanouStergiou v. Aristea Nicolas Stergiou,3 a suit which involved the custody of children. The plaintiff and the defendant were married in accordance with the rites of the Greek Orthodox Church. The plaintiff, after having had two children with the defendant, was converted to Islam and the couple separated. The plaintiff then brought a suit for the custody of the children, a girl of nine and. a boy over seven. Since the couple adhered to two different religions, they had no "custom" applicable to them under section 5 (a) and the High Court had to act according to "justice, equity and good conscience" under section 9. There were three main sources to draw upon in order to arrive at a decision according to "justice, equity and good conscience", namely English law, Greek Orthodox canon law and Islamic law. MUDAWI, P.J., awarded the custody of the children to the father. He stated: "At the inception of the marriage I can say that both parties had had the rules of Greek Orthodox Religion in mind, but today at least the father holds different views. The father is a Muslim and he prefers to be judged according to the rules of Sharia. In a country like ours where the family connections are close and the father occupies a position only excelled by the position of the Roman Pater Familias, it is only logical that any faith professed by the father is bound to mould and control the way of life of the children and go a long way in shaping their future concepts and beliefs. Besides Sharia is accepted law of the domestic relations of the community in which the children of this marriage are going to be brought up. This being the case, I must say, confronted with the choice between Greek Canon law and Sharia, I have to choose the latter."

The real issue in dispute in the above case was not the mere custody of the children but whether they should be brought up as Muslims or as Greek Orthodox Christians. The Courts, before acting in accordance with justice, equity and good conscience, had to ascertain beyond doubt that there was no Sudan legislation or decision of a competent court covering the suit before them. In acting under section 9, the Judge (or the Court) was not supposed to formulate personal or arbitrary views as to what was just, equitable and good conscience in the particular case for the Court. It was incumbent on the Judges where the case before them was not covered by any Sudan law for the time being in force, to examine any other systems of law or views of jurists in order to find out what was just in a particular case.

1 Ibid., p. 93. 2 H.C.-C.S.-8-1949. 3 (1963), S.L.J.R. 182. Vol. 1 7. No. 2 Droit personnelau Soudan 165 Besides sections 5 and 9 of the Civil Justice Ordinance, 1929, suits involving personal matters were and are settled by the Local Courts set up under the Chiefs' Courts Ordinance, 1931, and the Native Courts Ordinance, 1932. These Courts administer customary law, though the warrants establishing them may entrust them with the enforcement of certain enactments. The Local Courts are authorised to administer "the native law and custom prevailing in the area over which the Court exercises its jurisdiction, provided that such native law and custom is not contrary to justice, morality or order".' With more urbaijisation and the influx of rural folk into towns and industrial areas in search of employment, the State Courts will eventually have to settle suits involving personal matters in accordance with the customary law. Native law and custom as administered by the Local Courts covers all aspects of that law. Its application is subjected to three criteria, namely, "justice, morality or order". The question whether a rule of native law and custom is contrary to "justice, morality or order" would hardly arise before the Local Courts, because these Courts are manned by men versed mostly in the native law and custom accepted or recognised as law by their particular tribe or community. This repugnancy clause would come into operation when appeals and revisions lie from the decisions of the Local Courts to the Resident Magistrate or Inspector of Local Government and from their decisions to the Province Judge or Court of Appeal and the Supreme Court. There are not many decisions made by the Civil Courts under the Chiefs' Courts Ordinance, 1931, and the Native Courts Ordinance, 1932, declaring a rule of customary law or institution as being contrary to "justice, morality or order". There are definitely rules and institutions recognised by various native laws and customs prevailing in different areas of the Sudan which may be peculiar or unknown to European and Islamic systems of law. The State Courts would be advised to move with utmost care and caution just as they have done with non-customary personal law under section 5 (a) of the Civil Justice Ordinance, 1929, when exercising their powers under sections 7 and 9 of the Chiefs' Courts Ordinance, 1931, and the Native Courts Ordinance, 1932, respectively. To refuse, for instance, to recognise the levirate, woman-woman and ghost marriages as found among the Nuer, the Dinka and the Shilluk would bastardise children born legitimate according to their own law and custom.2 However undesirable such institutions may be considered by some to be, the best way to change or abolish them is not through judicial decisions declaring them void but through education, social and economic development and legislation. It is hoped the Judges of the State Courts would follow the tradition already established in dealing with non-customary personal law under section 5 (a) of the Civil Justice Ordinance, 1929, of not interfering with a rule of personal law unless not to do so would constitute greater harm. As mentioned earlier, there are hardly any reported cases on customar) law; however, Sudan Governmentv. Rainando Legge3 provides a good example

1 and s. of the Native Courts S. 7 (I) (a) of the Chiefs' Courts Ordinance, 193I, 9 (r) (a) Ordinance, 1932. The Chiefs' Courts Ordinance regulates the administration of native law and custom, in the three Southern Provinces of Equatoria, Bahr El Ghazal, Upper Nile and Ngok Dinka Area of Southern Kordofan Province, while the Native Courts Ordi- nance regulates the administration of native law and custom in the rest of the country. 2 See P. P. Howell, Manual of AN~erLaw, pp. 74 et seq., O.U.P., 1954; and Farran: op. cit., pp. 77-81. 3(1963), S.L.J.R. 54- 166 Personal Law in the Sudan [i973] J.A.L. of how the State Courts should handle rules and institutions of native law and custom. In the above case, the prisoner, Rainando Legge, was convicted and sentenced to one year's imprisonment by the Central Bari Regional Court for having had sexual intercourse with a young unmarried woman who became pregnant and whom he refused to marry. An application was made to the Resident Magistrate, Juba, asking for mercy and reduction of sentence. The Resident Magistrate found no offence was committed under the Sudan Penal Code since she was apparently of full age, neither of the parties being married; and she appeared to have consented to the act on the strength of the alleged promise by the prisoner to marry her. The conviction could only stand on appeal if the act of the prisoner could be satisfactorily proved to amount to violation of a valid custom. According to Bari custom, pre-nuptial sexual intercourse is allowed, provided the man is prepared to marry the girl afterwards. This rule applies to virgins only, and not to girls who had already lost their virginity or who are divorced. The prisoner admitted that he impregnated the girl and did not deny that she was a virgin. In the circumstances the act of the accused was clearly a violation of the Bari custom. The only question was whether the Bari custom in this respect should be upheld by the State Court. A custom is recognised as valid if it is not, in the opinion of the Court, contrary to "justice, morality or order". The Resident Magistrate, M. N. O. Tambal, upheld the Bari custom and approved the conviction of the prisoner. He stated: "By valid customis meantone whichis not contraryto justice,morality or order. One need not read too much into the importof the term 'morality', otherwisethe whole object of the Chiefs'Courts Ordinance will be defeated. Many are the customswhich go deep to the root of village life here in the South,with which not many of us (NorthernSudanese), if indeedany at all, would agree,and for this reasonI am of the opinionthat this Baricustom is a valid one." I agreecompletely with the ResidentMagistrate that it is not the intention of the Legislaturethat the judge or the court should arbitrarilysubstitute his or its own sense of what is just, moral or contraryto orderfor the provision of the native law and custom. The formulaeto which the administrationof Customarylaw are subjected undersection 5 (a) of the CivilJustice Ordinance,1929, and undersections 7 and 9 of the Chiefs' Courts Ordinance, 1931, and the native Courts Ordinance, 1932, respectively, could not be taken to mean English law, Islamic law or any other foreign law, because this would nullify the basic provision which provides that native law and custom must be the primary source. It was evident at the time when these Ordinances were first enacted that very few customs of the Sudan would likely be in agreement with English law, Islamic law or any other foreign law.1 It would be wrong, therefore, if the State Courts subjected the native law and custom using the repugnancy clauses to the standards of English law or of any other law for that matter.

Specific legislation on aspects of personal matters of non-Muslims As mentioned earlier, besides sections 5 and 9 of the Civil Justice

See J. Duncan M. Derrett, "Justice, Equity and Good Conscience", pp. 114, 149, in J. N. D. Anderson's ChangingLaw in DevelopingCountries. Vol. 17. No. 2 Droit personnelau Soudan i67 Ordinance, 1929, and the Sudan Mohammedan Law Courts Ordinance, i902, the Sudan inherited the Non-Mohammedan Marriage Ordinance, 1926, which governs the celebration of monogamous marriages between non- Muslims; the Wills and Administration Ordinance, 1928; the Official Administrator Ordinance, 1928; and the Public Trustee Ordinance, 1937. Except for the Public Trustee Ordinance, these Ordinances deal specifically with personal matters of non-Muslims excluding the pagan tribesmen and confer jurisdiction on the Civil Courts. It is not possible to deal in detail with the provisions of the above Ordinances in this article. I shall only examine what I consider as the essential features of these Ordinances.'

Marriage Unfortunately the Non-Mohammedan Marriage Ordinance, 1926, does not deal with divorce and other aspects of family relationships of non- Muslims which had to be dealt with under sections 5 or 9 of the Civil Justice Ordinance, 1929. In addition to the fact that the Non-Mohammedan Marriage Ordinance does not apply to Muslims and pagan tribesmen, it does not rule out valid marriages among non-Muslims being contracted in any other way. Indeed the Ordinance has a provision which enables certain religious communities to be excepted from its requirements. The marriages among the Excepted Communities are governed by section 5 (i) which states: " . . . all marriages celebrated betwcen such persons (i.e. members of the excepted communities) by a minister of such religious community shall, if all the requirements of their personal law have been complied with, be valid and shall have the effect and involve the consequences laid down by such personal law." The Excepted Communities do not, however, altogether escape regulation by the State law. They are governed by the Excepted Communities Marriage Regulations, which require the officiant to make an official registration of such marriages2as well as by sections 45 to 48 of the Non-Mohammedan Marriage Ordinance, which, among other things, impose penalties on those who celebrate marriages of which they are not entitled to celebrate or which are contrary to the personal law of the parties. The communities which have been granted recognition as Excepted Communities are the Greek Orthodox Church, the Orthodox Coptic Church, the Jewish community, the Evangelical Church of Egypt and the Sudan, the Roman Catholic Church and the "Uniate Churches", i.e. branches of the Roman Catholic Church which are allowed to worship in their own language rather than in Latin and according to their own rites, but which share allegiance to the Pope and the canon law of marriage. The Roman Catholic Church and the Uniate Churches are treated under the Non-Mohammedan Marriage Ordinance as a group of Excepted Com- munities, the minister of which can celebrate a marriage between any two members of the group in accordance with the group's personal law.3

1 See P. S. Attiyah, "Some problems of family law in the Sudan Republic", S.N. & R., Vol. 39, pp. 88-xoo. 2 See the Schedule to the Regulations in Laws of the Sudan,Vol. Io, 228. 3 S. 5 (2) and the second Schedule to the Non-Mohammedan Marriage Ordinance, Parts I and II, p. 227, Vol. xo, Laws of the Sudan. The "Uniate Churches" are the Greek Catholic Church, the Maronite Church, the Syrian Catholic Church, the Armenian Catholic Church, the Coptic Catholic Church and the Chaldaean Catholic Church. i68 Personal Law in the Sudan [1973] J.A.L. Though the members of the Excepted Communities are allowed to celebrate their marriages in accordance with their own personal law, jurisdiction to settle disputes related to such marriages was vested in the Sudan Civil Courts and not in the Ecclesiastical Court of the particular Community. It was held by the Court of Appeal in Mariam Abdulla rousif Abagi's case1 that an Ilam or certificate of heirship issued by the Vice- Patriarch of the Greek Catholic Church in the Sudan was not "the judgment of a Court having jurisdiction in the Sudan". The above decision was upheld by the Court of Appeal in 1946 in MoneibConstantine v. Zakia Elia Tifaya2 in very clear terms when CUMINGS,C.J., said: "Too much was made in the trial in the Court below of these decisionsof religioustribunals which have no legal standing in the Sudan and merely furnishevidence of the Churchcustom, which it may then be the duty of the Civil Courtsto apply." Apart from the special position of the Excepted Communities, the Non- Mohammedan Marriage Ordinance does not apply to any marriages contracted under Muslim law or "any valid pagan law or custom". A marriage celebrated under the Non-Mohammedan Marriage Ordinance is strictly monogamous and so long as such marriage subsists neither party is competent to contract a second marriage whether under this Ordinance or otherwise. An attempt to do so would not merely be legally ineffective but would constitute the offence of bigamy under section 429 of the Sudan Penal Code. A marriage contracted under this Ordinance subsists until one of the parties dies or until it is dissolved by a decree of nullity or of divorce pro- nounced by a Court of competent jurisdiction.3 The Ordinance has a special provision as to the effect of conversion of a husband married under it to Islam. The conversion of the husband to Islam does not affect the marriage which continues to subsist, but the husband acquires a new personal law, Islamic law, with its rights and duties. This means in effect that he can divorce his wife, without the intervention of the Court, by talakand can marry three other wives in addition to the Ordinance wife. However, if the wife married under the Ordinance is not converted to Islam or does not want the new situation, she has a right to divorce him as of right on proof of subsequent marriage or marriages. The conversion of the husband to Islam did not confer jurisdiction on Sharia Courts. Thus in FaridaFouad Nakhla v. SameerAmeer4 where a Copt changed his religion and became a Muslim, after marrying under the Excepted Community Proced- ure, and then proceeded to divorce his wife as a Muslim, it was held by the Court of Appeal that the Civil Courts had jurisdiction to deal with the wife's claim to maintenance and other matters. The Ordinance does not, however, provide what would follow if it is the wife who is converted to Islam. Would she be able also to dissolve her marriage under the Ordinance if the other party does not convert to Islam since her new personal law prohibits a Muslim woman marrying a non-

I A.C.-APP-27-1926, S.L.R. Vol. 297. 2 A.C.-APP-13-1946. See also Josephine Iskander Mikhail v. Ayyad Diryas Ghali and GanviaveDiryas Ghali (1953), Digest No. 23, in which an attempt to confer jurisdiction on the religious authorities of the Coptic Orthodox Church by contract of betrothal was rejected by the High Court as void for illegality; and Misr PrintingPress v. Kamil MohamedKhalil (1959), S.L.J.R. 3, 4. 3 S. I2. 21. 4 (1957), S.L.J.R. Vol. 7. No. 2 Droit personnelau Soudan 169 Muslim? If a man can change his religion and acquire a new personal law, why should a woman not also change her religion and acquire a new personal law?1 Though marriages contracted under Islamic law or valid pagan law or custom are polygynous in character, it appears that a couple can transform such a marriage into a monogamous one by being remarried under this Ordinance.2 The following types of marriage are valid under, or recognised by, Sudan personal law: (i) A marriage between two Muslims if it complies with the requirements of Sharia law. (2) A marriage between two non-Muslims: (a) if the parties were pagans married under a valid pagan law or custom; or (b) if the parties were married under the Non-Mohammedan Marriage Ordinance; or (c) if the parties were married in accordance with the Excepted Com- munity procedure; or (d) if the parties were married in accordance with Sharia law. (3) A marriage between a pagan and a non-pagan if it complies with the Non-Mohammedan Marriage Ordinance. (4) A marriage between a Muslim and a non-Muslim if it complies with Islamic law. (5) A marriage contracted abroad if: (a) the formalities of the lex celebrationisare complied with; and (b) the requirements of the personal laws of the parties are met as regards substance.

There is a controversy as to whether a Muslim can contract a monogamous marriage with a non-Muslim under the Non-Mohammedan Marriage Ordinance, because of the title "Non-Mohammedan". So far no application for a marriage of this kind has been made to the Registrar of Marriages under the non-Mohammedan Marriage Ordinance. The tribal customary laws, particularly in the Southern Sudan, do not recognise religion as a bar to marriage and a good number of marriages are contracted in accordance with customary law between Muslims and non-Muslims, including Muslim women, who according to Islamic law are prohibited from marrying a non-Muslim. There is no doubt that if a dispute involving a marriage between a Muslim woman and a non-Muslim came before the Sharia Courts they would have held such a marriage (otherwise valid under tribal customary law) null and

1 Cf. Attorney-Generalof Cevlonv. Allen EllinglonReid alias IbrahimnReid, [ 1965] 2 W.L.R. 67 1, in which the Privy Council, in an appeal from Ceylon, held that the inhabitants of such countries as Ceylon, with many races, many creeds and a number of Marriage Ordinances and Acts have "an inherent right . . . to change their religion and personal law and so contract a valid polygamous marriage if recognised by the laws of the country notwith- standing an earlier (monogamous) marriage. If such inherent right is to be abrogated it must be done by statute". While I believe freedom of religion includes freedom to change one's religion, I see no good reason why it should necessarily affect, interfere with or extinguish existing obligations or status legally acquired. 2 See the proviso to s. 6: "Other than the person with whom such marriage is had." I do not share the view of Dr. Farran that it is only the pagans who can avail themselves of this facility, simply because of the title of the Ordinance "Non-Mohammedan". This Ordinance does not apply both to Mluslimsand pagan tribesmen of the Sudan. If the pagans can transform their marriage into monogamous marriage, why not the NMuslimcouple? For his views, see Farran, op. cit. at pp. 52-61. 170 PersonalLaw in the Sudan [1973] J.A.L. void. Because one of the parties is a non-Muslim, the case would have come before the Civil Courts. I cannot predict what the decision would be. This is a problem of internal conflict of laws which has to be cleared up by legislation, or settled by the Courts in due course.

Succession and inheritance and administration of estates The Wills and Administration Ordinance, 1928, makes provision with regard to making of wills, their interpretation and the devolution of the property and administration of the estates of deceased persons. It does not apply to the estates of Muslims and pagan members of pagan tribes.' It was held by the Court of Appeal in OfficialAdministrator v. AnbaBola Convent' and Kattanv. Kattansthat the Wills and Administration Ordinance does not apply to the estates of persons who died domiciled outside the Sudan, as this Ordinance merely regulates the internal law. It was held in the former case that the personal law of a deceased monk who died domiciled in Egypt was the law which would have been applied by the Egyptian Courts, in this particular case, the law of his monastic order. Similarly, in the latter case the Court of Appeal held that the law applicable to the deceased who died domiciled in West Jordan was the law which would have been applied to him by the Courts of West Jordan, in this case the rules of the Latin Patriarchal Church. Where a person died domiciled outside the Sudan, the Civil Courts applied the rules of English conflicts of law or private international law and the law to be applied depended upon whether the property in question was movable or immovable. Dispositions of movables were entirely regulated by the personal law of the deceased as regards matters of capacity, essential validity and formalities.4 On the other hand the disposition of immovables was a matter for the lex situs as regards capacity, essential validity and formalities. Succession to the estates of non-Muslims who die domiciled in the Sudan is governed by the Wills and Administration Ordinance. Under the Ordin- ance, intestate succession is entirely regulated by the personal law of the deceased, both as regards movable and immovable property, except that the provisions of the Ordinance relating to the prior payment of debts, funeral expenses, etc., take precedence over the personal law.6 The law of wills is governed partly by the Ordinance and partly by the deceased's personal law. A written will is valid if made voluntarily by a person who is not a minor or who, though according to his or her personal law a minor, has been married has full control of himself and has an adequate understanding of the effect of the disposition made and of the persons who would in case of intestacy partake in his or her estate.6 The formalities for making the will are also governed by the testator's personal law.7

1 S. 6. 2A.C.-APP-2o-I931, S.L.R. Vol. I, 521. 3 (1957), S.L.J.R. 35. v. Executor the Estate Costi 4 S. 7, Eugenia Christokakos of of Voulgaris,A.C.-Rev-18-I938, S.L.R. Vol. II, 302, and Mirhan Bidjikian and Othersv. Estate of Hagob Stephanian(1967), S.L.J.R. 70. 5 S. 4- 6 S. 6 (I) (c). 7 S. 6 (1) (a), Kattan v. Kattan (T957), S.L.J.R. 35, and MAirhanBidjikian and Othersv. Estate of Hagob Stephanian(x967), S.L.J.R. 70. Vol. 7. No. 2 Droitpersonnel au Soudan 17 I The same rule applies to oral wills. An oral will is valid if it is made under such circumstances and with such formalities as would be required in order that it might be recognised as valid under the testator's personal law.' However, the Ordinance lays down detailed provisions on grants of probate, letters of administration and other incidental matters.2 The Official AdministratorOrdinance, 1928, provides for the appointment of an Official Administrator of the estate of deceased persons. Its provisions, like those of the Wills and Administration Ordinance, do not apply to the estates of deceased Muslims and pagan members of pagan tribes inhabiting the Sudan.3 The Official Administrator appointed under the Ordinance is entrusted with the administration of an "unrepresented estate", that is to say, the estate of any person who dies and the executor of whose will or whose next-of-kin cannot be found or are unknown or who have for the space of one month after the death of the deceased neglected or refused to prove the will of the deceased or to take out letters of administration of his estate or who are deemed by the Court unsuitable to administer or who are absent from the Sudan without having an agent or who is a minor, bankrupt or lunatic or otherwise legally incapable of taking letters of administration.4 The Ordinance defines the powers and functions of the Official Administra- tor. The Official Administrator appointed under it has the power to settle, compromise or compound any claim by or against any estate. The Public Trustee Ordinance, 1937, like the Official Administrator Ordinance, provides for the appointment of a Public Trustee and defines his powers and duties of his office. The office of the Public Trustee forms part of the Law Courts of the Sudan and is subject to supervision and control of the Supreme Court.6 Any person intending to create a trust may by the instrument creating the trust, and with the consent of the Public Trustee, appoint him to be the trustee of the property subject to such trust. He may also be appointed trustee by a court of competent jurisdiction and may act as a manager of a trust for a trustee or body of trustees provided that such is a charitable trust. Though jurisdiction under the Public Trustee Ordinance was vested in the civil Courts, the facilities provided by the Ordinance are available to both Muslims and non-Muslims.6

Conclusion It is beyond doubt that the principle underlying the framework of Sudan personal law as laid down under sections 5 and 9 of the Civil Justice Ordinance, 1929, and section 6 of the Sudan Mohammedan Law Courts Ordinance, 1902, was non-interference with religions and the religious practices of the different communities of the Sudan. The pluralistic character of Sudan personal law was not only dictated by the religious and cultural heterogeneity of the Sudan but also by a recognition of the equality of all religions. Though this frameworkof personal law could be considered a fine example

1 a S. 5 S Ss. 13-38. S. 3. 4 S. 2. See also Estate of VictorEzra Ades, H.C.-Est-26-i934, S.L.R. Vol. II, 72. SS.3 (2). 6S. 8. 172 Personal Law in the Sudan [1973] J.A.L. of legal pluralism, it had inherent in it some artificial cleavages created by the existence of two sets of Courts as well as internal conflicts arising from the application of different personal laws which would have to be resolved one day in the interest of greater integration of various communities and national duty. The above was, in brief, the frameworkof personal law which the Republic of the Sudan inherited on January ist, 1956.

II-TRENDS AND DEVELOPMENTS

In Part I of this article I endeavoured to show the reality, in terms of historical development and actual legal practice, of Sudan personal law prior to 1967. In the light of the above historical survey I shall now examine trends and developments in the fields of the law and the constitution which affected, directly or indirectly, the framework of Sudan personal law as laid down in the Civil Justice Ordinance, 1929. The problem of the law to be administered in the Sudan had been a matter of political controversy. During the thirteen years of the Mahdist Regime, the independent Sudan had Islamic law as the law of the land. The Quran and the Sunna were supreme in all parts of the Sudan where the Mahdist Regime had control or influence.' For political and practical reasons English law was adopted as the territorial law in preference to Islamic law and Egyptian law. With the growth of Sudanese nationalism in the first quarter of the twentieth century the issue of the law to be administered in an independent Sudan was a matter of fundamental concern to the Sudanese nationalist leaders and it was itself a source of political controversy. This issue was not settled before Independence. The application of English law, as received in the Sudan, was preserved by Article I 13 of the Sudan Transitional Constitution, I956.2 When the Transitional Con- stitution, 1956, was suspended, following the military coup d'etat of November 17th, 1958, Article I 3 was more or less preserved by paragraph 3 of the Constitutional Order No. 3, issued by the Supreme Council of the Armed Forces.3 There were two main groups which campaigned for fundamental change in the Sudan legal system, which for practical purposes we can call the Islamists and the Pan-Arabists.The Islamists called for the adoption of Islamic law and the establishment of an Islamic State in the Sudan. This group was made up of a broad spectrum of religious and political organisa- tions which advocated strict adherence to Islamic law in all matters at one extreme and those who were in favour of deriving the new laws from principles of Islam when and wherever possible at the other. The Pan- Arabists consisted of those who were in favour of and advocated close political links with Egypt, in particular, and the Arab world in general. They included Sudanese lawyers trained in Egypt and who advocated the adoption of Egyptian law.

1 "The Administration of Justice during the Mahdia", by El Fahal El Tahir Omer (1964), S.L.J.R. 168, and "Ten Years' captivity in the Mahdist Camp 1882-1892", by Major-General Sir F. R. Wingate, from the Original Manuscripts of Father Joseph Ohr- walder (04th Edition, p. 70), Samson Low, Marston & Co., London, 1893. 2 "Subject to the provision of this Constitution, all the laws in force in the Sudan im- mediately before the commencement of this Constitution shall continue in force until altered, replaced or amended by Parliament or other competent authority." ."All laws in force before suspension of the Sudan Transitional Constitution shall continue in force until repealed or amended by any appropriate authority." Vol. 17. No. 2 Droit personnelau Soudan 173 A third group, which was not formally organised, called for an eclectic approach. They advocated the adoption of what is best from English law, Islamic law, Egyptian law and from Sudanese customs and traditions. They did not therefore call for the wholesale substitution of the existing Sudan laws, some of which, like the Sudan Penal Code, could not by any standard be considered English criminal law. The eclectic approach was held mainly by lawyers trained in common law tradition and jurisprudence.' Except for Sheikh Hassan Mudathir's booklet, A Memorandumfor the Enactmentof a Sudan Constitutiondevised from the Principles of Islam,2 no serious thought was given to the complex problem either by the National Govern- ments or by the political parties until after the October Revolution in 1964- Sheikh Mudathir, a former Grand Kadi of the Sudan, presented in 1956, in the above booklet, the "sacred Islamic principles as a guide and foundation for new pillars and future legislation". Sheikh Mudathir's case for an Islamic constitution is based on the twin assumptions that the Sudan is an Islamic and Arab country.3 That the majority of the Sudanese are Muslims is a fact but it is not true to assume that the Arabs also constitute the majority of the population of the Sudan. The Arabs, however, as a national group championed the independence movement and took over political power from the British Administration. Since then, and in spite of the Sudan being predominantly African in culture, it has been treated for all practical purposes as an Arab State and has been an active member of the Arab League. But, assuming that the Sudan is an Islamic and Arab country, there is nevertheless a sizeable non-Muslim non-Arab minority, whose religious and cultural rights should be guaranteed and protected, particularly their personal law, should the Muslim majority adopt an Islamic constitution for the Sudan. The legal framework of personal law, as laid down in sections 5 and 9 of the Civil Justice Ordinance, i929, was based definitely on the secular character of the State and the recognition of equality of all religions. This legal framework was unacceptable to the orthodox Muslims, particularly section 5 (b) of that Ordinance which authorised the Civil Courts to administer Sharia law in personal matters as modified by custom. Though Islamic law is in practice modified by custom and the legislator of the time could be said to have given effect to this reality, this is an argument which orthodox Muslims will not accept. Islamic law, being a divine law, is, it is argued, immutable and cannot in law be modified by custom.4

1 For further information on these groups, see (i) Egon Guttman: "The Reception of the Common Law in the Sudan" (1957), I.C.L.Q. Vol. 6, pp. 415-416; (2) Cliff F. Thomp- son: (i) "The Formative Era of the Laws of the Sudan" (1965), S.L.J.R. 474, PP. 504-511; (ii) "The Sources of Law in the New Nations of Africa: A Case Study from the Republic of the Sudan" (1966), Wisconsin Law Review 1 46, pp. 178-1 184. Professor Thompson in his articles adds a new group, the Communists, who according to him have "a sweeping though undetailed programme"; (3) G. A. Lutfi: "The Future of English Law in the Sudan" (1967), S.L.J.R. 219. Sayed Lutfi's article deals with very recent development and covers the vital period following the October Revolution, 1964. It discusses in some detail the role of the different groups, particularly those who called for the adoption of Islamic law. 2 Government Printing Press, Khartoum, I956. 3 "In an Islamic country like the Sudan, the social organisation of which has been built upon Arab customs and Islamic ways, and of which the majority are Muslims, it is essential that the general principles of the Constitution of such a country should be derived from the principles of Islam; and consequently the laws governing its people should be enacted from the principles of Islamic Constitution and in accordance with Islamic ideals out of which such community has been shaped," ibid., p. I. 4 See, however, (i) Mohammed Ahmed Abu Rannat: "The relationship between Islamic and Customary law in the Sudan" [1960] J.A.L. 9, p. io, and (ii) J. N. D. Anderson: "Modernisation of Islamic law in the Sudan" (1960), S.L.J.R. 292. 174 PersonalLaw in the Sudan [1973] J.A.L. Another source of controversywas section 6 (a) of the Sudan Mohammedan Law Courts Ordinance, 90o2, which confined the jurisdiction of the Sharia Courts in family matters to suits to which all parties were Muslims or where the marriage to which the question related was concluded in accordance with Sharia law. This ordinance excluded from the jurisdiction of the Sharia Courts suits involving family matters to which one of the parties was a Muslim, unless the marriage to which the suit related was concluded in the Islamic form. This meant, in practice, that the Sharia Courts could not enforce one of the fundamental rules of Islamic personal law, which prohibits a Muslim woman from marrying a non-Muslim. The existence of such legislation on the statute book was considered by the Islamists as not only an affront to Islam but also as one of bitter legacies of British colonialism which should be eradicated. It should be clear from the foregoing why the issue of the law to be administered in the Sudan was, and is, so much intertwined with politics and constitution making.

1956-1964 Though there was no formal legislation or authoritative judicial decision on Islamic law being the fundamental law of the Sudan after Independence as shown above, a legal opinion given by the Deputy Attorney-General in 1957 to the Permanent Under-Secretary, Sudan Ministry of Foreign Affairs on "Marriageof Belgian Nationalsand persons of Sudanesestatus", assumed the Islamic law as the law of the state. It stated emphatically that "because the Sudan is an Islamic country, the Islamic law governs such marriages between Sudanese and others".1 The above legal opinion on Sudan personal law represents a very super- ficial view not only of the Sudan but also of its marriage law at the time. Either the Deputy Attorney-General assumed that all the Sudanese were Muslims, which was not true, or that marriages in the Sudan were governed only by Islamic law, which was also not true. It is only by assuming that by "Sudanese" he meant "Sudanese Muslims" that his opinion could have had any sense as regards Sudan personal law at the time. There were no majordevelopments in the field of personal law between 1956 and 1964. The Draft Constitution of the Sudan, 1958, which was before the Parliament but not passed because of the November 17th, 1958, Coupd'itat did not deal specifically with the issue of the law to be administered. Though it declared Islam the official religion of the State,2 the obvious adverse implications of this provision were nullified by Articles 6 and 7, guaranteeing equality of all persons before the law and prohibiting any discrimination between Sudanese based on birth, religion, race or sex in regard to public or private employment or in admission to, or exercise of, any occupation, trade, business or profession and, in particular, by the guarantee to all persons of freedom of conscience and the right freely to profess their religion, subject of course to restrictions imposed by law for the protection of morality, public order or health. Both Articles 6 and 7 were taken verbatim from Articles 4 and 5 (1) of the Sudan Transitional Constitution, 1956. Despite the policy of Islamisation and Arabisation carried out by the

1 M.J./Legis/28-j, dated April 17th, 1957- 2 Article 5. Vol. 17. No. 2 Droit personnelau Soudan 175 Aboud Regime in the three Southern Provinces as a means of bringing about national integration and unity between the Northern and Southern parts of the Sudan culminating in the Missionary Societies Act, 1962, which virtually stifled Christian missionary activities in the Southern Sudan, the six years of military dictatorship did not witness any legislative changes in the field of personal law.'

The October Revolution, x964 With the overthrow of the Military Regime on October 21st, I964, the Sudan Transitional Constitution, 1956, as amended in 1964, was restored as the fundamental law of the state. Since Article 5 of that constitution guaranteed freedom of conscience and religion, it was expected that the Missionary Societies Act, 1962, would be repealed. Though this Act was not strictly adhered to after the October Revolution, it remained on the statute book as evidence of tacit approval of, or ambivalence towards, the military regime's policy of Arabization and Islamization. The October Revolution revived fundamental issues which confronted Sudanese nationalism at the time of Independence: the nature of the new State, the political system and the law to be adopted instead of those which had been inherited from the Colonial regime. Though the leaders of the Revolution affirmed the continuation of the existing laws,2 they provided, in the National Charter agreed upon by the representatives of the armed forces and the United National Front, for "the formation of a Law Revision Committee for the purpose of proposing new laws consistent with our (Sudanese) traditions".3 Except for the Southern Sudanese and the Sudanese Communists, Sudan- ese nationalism was, and is, dominated by Arabism and Islam. When the Sudanese nationalist leaders call upon the forces of nationalism, they appeal to ideas and passions primarily associated with Arabism and Islam. This was particularly so in the field of law. What the National Charter laid down was a very broad principle which is capable of being interpreted in any way by the different interested groups as it suits their purpose. It should be pointed out here, however, that there was agreement among the various groups on subjecting the written laws of the Sudan, the legacy of British colonialism, to severe critical scrutiny; and on the making of new laws which would reflect the traditions, beliefs, cultures and the socio-economic conditions of the Sudan. The controversy has been over the means by which this goal was to be achieved. Because of the plural character of the Sudan, it is understandable that the issue of law has proved to be not only complex but highly controversial. Political life in the Sudan was, from June, 1965 to May, 1969, dominated by the Islamists or those political parties and groups which were more or less in favour of a constitution derived from Islam. The most articulate were the Islamic Charter Front, commonly known as the Muslim Brotherhood, an international organisation dedicated to Islamic revival and the establish-

1 See (i) Mohamed Omer Beshir: SouthernSudan, Backgroundto the Conflict, Chapter 9, pp. 80-87, C. Hurst & Co. Ltd., London, 1968; (ii) Toynbee, Betweenthe Niger and the Nile, pp. 5-6, O.U.P., London, 1968; and (iii) S.G. v. FatherSilvanus Gottardi, P.C.-S.N.C. C.R.-APP-x7-X96o (1960), S.L.J.R. 245- 2 See Article o09 of the Sudan Transitional Constitution as amended in 1964, which is identical with Article I13 of 1956 Constitution. 3 Article 9 of the National Charter which was published together with the Sudan Transitional Constitution as amended in 1964. 4 176 Personal Law in the Sudan [I973] J.A.L. ment of modern states modelled on the Holy Quran and the Sunna; and the Liberation Party. These two Islamic parties were radical and campaigned for the establishment of an Islamic State in the Sudan. They had the sympathy, if not the support, of the three big national parties, the Umma, the People's Democratic Party and the National Unionist Party. The first two parties were established under the patronage of the leaders of the Ansar and the Khatmiya Sects respectively. Though the stand of these parties was not as radical as that of the Islamic Charter Front and the Liberation Party, they all called in general for the establishment of a State founded on the Islamic faith. It is the Islamists who are therefore responsible for the trends and developments that took place in the field of personal law from October, 1964 to May, 1969. The Communist Party, the parties of the Left, and the Southern Front (the last of which boycotted the 1965 Elections) did not have any influence in the Constituent Assembly and in the Government. The Communist Party was itself dissolved in November, 1965 following the amendment of Article 5 (2) of the Transitional Constitution (as amended in 1964) to prohibit the propagation of communism or atheism and the advocating of the overthrow of government by force, and its members were expelled from the Assembly.' In 1965 the Minister of Justice set up a Law Revision Committee which was entrusted with the revision of Sudan laws. The Committee was reconstituted in 1968, with a number of sub-committees on various aspects of the law. There was one sub-committee on personal law. The Committee was dissolved in August, 1969, but the sub-committee on personal law did not formally start its work because its chairman declined his appointment to the reconstituted Law Revision Committee.2 The Constituent Assembly elected in April, 1965, was entrusted by the restored Transitional Constitution with the making and passing of a permanent constitution for the Sudan and set up a National Constitutional Committee in January, 1966 to prepare a draft Constitution for presentation to the Assembly.

Amendment No. 4 of 1966 The ardent core of the Islamists was not, however, prepared to wait for the Assembly to pass the permanent Constitution. Having successfully campaigned for the banning of the Communist Party, they set out systematic- ally to achieve their goal piecemeal-namely, making the Islamic law the fundamental law of the Sudan. In 1966, the Transitional Constitution was amended in order to establish two separate and independent divisions of the Judiciary, each responsible directly to the Supreme Commission for the discharge of its functions.3 Hitherto, the Sharia Courts, though functionally and institutionally separate from the Civil Courts, were not independent. The Chief Justice was the administrative head of the Judiciary, higher in rank and salary, and the

1 See Amendment No. 2 to the Sudan Transitional Constitution as amended in 1964; the Dissolution of the Communist Party Act, 1965 (1965 Act No. 35), and Joseph U. Garang and Othersv. The SupremeCommission and Others(1968), S.L.J.R. I. 2 See the Law Commissions Provisional Order, 1968, and the Law Commissions Pro- visional Order (Repeal) Act, 1969. 3 Amendment No. 4 of 1966. Vol. 7. No. 2 Droit personnelau Soudan 177 Civil Courts were responsible for the execution of the judgments and orders of the Sharia Courts. The Court of Jurisdiction, as established under Article 99 (d) of the Constitution, was composed of the Presidents of the Civil and Sharia Supreme Courts, and one member from each of the two Courts. The presidency of the Court of Jurisdiction was to rotate between the two Presidents, and the Court was to make its decisions by simple majority; and should there be a tie, the presiding President had a casting vote. In the light of the tendency in other Arab and Muslim states to abolish separate or community jurisdictions and to centralise all litigation in one system of national Courts, the 1966 Amendment was indeed a retrogressive step, particularly for those who looked forward to the merger between the Civil and Sharia Courts. The merger would not in any way affect the framework of Sudan personal law. The Courts would, after the merger, apply the provisions of sections 5 and 9 of the Civil Justice Ordinance, 1929. The merger of the Courts would not only save the country some expenditure but also would eliminate all the provisions of the Civil Justice Ordinance, 1929, and the Sudan Mohammedan Law Courts Ordinance, 1902, which dealt with the jurisdictions of the Civil and Sharia Courts.

The Sharia Courts Act, x967 In order to give effect to Amendment No. 4 of 1966, the Council of Ministers passed the Sharia Courts Act, 1967, as a Provisional Order in September, 1967, which was subsequently approved by the Constituent Assembly.1 This Act repealed and replaced the Sudan Mohammedan Law Courts Ordinance, I902. Section 6 of that Ordinance which dealt with the jurisdiction of the Sharia Courts was reimbodied in section 5 (1) of the 1967 Act. Except for section 5 (1) (a), which dealt with jurisdiction in family matters, thejurisdiction of the Sharia Courts remained as itwas under the I902 Ordinance. Section 5 (i) (a) introduced fundamental changes in the family law because it extended the jurisdiction of Sharia Courts in family matters and therefore the application of Islamic law to Christians and Jews. Section reads as follows: 5 (i) "The Sharia Courts shall be competent to decide on: (a) Any question regarding marriage, divorce, guardianship of minors or family relationship, provided that the contract of marriage to which the question related was concluded in accordance with the Sharia rules or both parties are Muslims or oneof thembelieves in any of theHoly Books." [Emphasis added.] What was new was the addition of the italicised phrase to section 5 (1) (a). This, though in appearance simple, is extremely complex. It is pregnant with ambiguities. The Holy Quran recognises only two other Books as "holy", the Torah and the New Testament. Those who believe in them are known as "Kitabi". Therefore, unless we interpret "any of the Holy Books", to mean only the Quran, those who believe in the Holy Books besides the Muslims are the Jews and the Christians. The ramifications of the last clause to section 5 (I) (a) in relation to other legislation on family matters of non-Muslims were also complex. The Sharia Courts Act, 1967, did not expressly amend section 5 of Civil Justice

1 1967 P.O. No. 17, confirmed and became 1967 Act No. 39. 178 Personal Law in the Sudan [1973] J.A.L. Ordinance, 1929, nor the Non-Mohammedan Marriage Ordinance, 1926, which regulates monogamous marriages between non-Muslims, mostly between members of various Christian communities. What this clause in fact did was to introduce unnecessary confusion into the family law. The clause raised many possibilities for the jurisdiction of the Sharia Courts in family matters over non-Muslims, some of which were definitely never intended by the legislature, nor by those who engineered the inclusion of the particular provision. Besides the two old grounds for jurisdiction in family matters the Sharia Courts had jurisdiction over the following suits under the last clause to section 5 (i) (a) to which the parties were: (i) all Christians or Jews; (2) a Christian and a Jew; (3) a Christian and a Muslim; (4) a Jew and a Muslim; (5) a Christian and a non-believer in any of the Holy Books; and (6) a Jew and a non-believer in any of the Holy Books. The Sharia Courts did not however have jurisdiction under section to entertain a suit matters to which one of the 5 (i) (a) involving family parties was a Muslim and another a non-believer in any of the Holy Books. Whatever method of interpretation we adopt this clause must be treated as the most inept form of legal draftsmanship. If the intention was to bring all mixed marriages between Muslims and the Kitabis under the jurisdiction of the Sharia Courts, this could have been achieved without subjecting family matters of Christians or Jews to Islamic law without their consent or approval. Whatever the intention of the legislature, it is charitable to assume that it did not intend to subject the Kitabis in family matters to Islamic law. For to hold otherwise would mean that the Government and the legislature by the last clause to section 5 (i) (a) had sanctioned what could legitimately be regarded as a form of religious persecution. Though there was a concerted campaign for the Sudan to adopt an Islamic Constitution, no one expected that Islamic law would be imposed on non-Muslims in personal matters. There were many non-Muslims who considered the implications of this clause a bitter foretaste of what their life would be under an Islamic state. This fear or feeling was particularly so among the ex-masalma and their children and grandchildren.' There was no doubt that this new clause bringing the Christians and Jews under the jurisdiction of the Sharia Courts was not only a flagrant infringement of religious freedom and practice guaranteed them by Article 5 (1) of the Transitional Constitution as amended in 1964, but was also considered an affront to the non-Muslim communities of the Sudan. As it was officially established in 1969 there was no intention on the part of the Government or the legislature to subject the personal or family matters of non-Muslims to Islamic law. All that the legislature intended by the last clause of section 5 (i) (a) of the Sharia Courts Act, 1967, was to subject mixed marriages between Muslims and non-Muslims to the jurisdiction of the Sharia Courts and this could have been achieved simply if the phrase "or one of them is a Muslim", was used instead of "or one of them believes in any

I See Mariam Abdulla Yousif Abagi v. Administratorof the Estate of Abdulla Yousif Abagi, A.C.-APP-26-1926, S.L.R. Vol. I, 27, and Habashi Rizgalla Habashi v. Administratorofthe Estate of Rufail Habashi, A.C.-APP-16-1947, Supra. Vol. 17. No. 2 Drait personnel au Soudan 179 of the Holy Books". This was exactly what the Government tried to do in April, 1969.

The Child Care Act, x968 The Child Care Act, 19681 followed in the footsteps of section 5 (x) (a) of the Sharia Courts Act, 1967. Sections i 1 and 13 of this Act dealt with legal guardianship of abandoned children. While the Civil Courts retained the guardianship of the non-Muslim children, jurisdiction over the guardianship of abandoned children whose parents were unknown was vested by this Act in the Sharia Courts. What in fact the legislature did under this Act was to reverse the traditional roles of the Civil and the Sharia Courts. While residual jurisdiction in personal matters was vested by the Civil Justice Ordinance, I929, and, subject to criticism voiced above, by section 5 of the Sharia Courts Act, 1967, in the Civil Courts, the Child Care Act, 1968, took away the jurisdiction of the Civil Courts in respect of abandoned children whose parents are unknown and who are presumed Muslim by law. The two sections of the Act on legal guardianship were passed in the face of bitter opposition. The debates in the Constituent Assembly drew the attention of the non-Muslim communities of the Sudan for the first timc to the practical implications of an Islamic state. Though this Act was repealed by the Child Care Act, 1971, the two sections were reimbodied in the 1971 Act."

The Draft Constitution of the Sudan, 1968 The National Constitutional Committee set up by the Constituent Assembly in January, 1966 to prepare a Draft Constitution completed it task at the end of December, I967 and the Draft Constitution was tabled before the Assembly in January, I968. The Draft Constitution of the Sudan, 1968, was, for all practical purposes, an Islamic Constitution. It declared the Sudan a Democratic Socialist Republic founded on the Islamic faith. Islam was to be its official religion and Arabic its official language.3 It provided that Islamic jurisprudence was to be the primary source of legislation in the Sudan. All legislation passed after the adoption of the Draft Constitution which contravened the provisions of the Kitaband the Sunnawere to be considered void to the extent of the contravention or inconsistency. All laws which contravened the provisions of the Kitab and the Sunnawere to be repealed or amended to the extent necessary to remove the contravention. All unapplied provisions of the Islamic law were also to be enforced, provided, however, that the repeal or amendment of the laws contravening the Kitaband the Sunnaand the enforcement of such unapplied provisions of Islamic law should be gradual, according to necessity and subject to the decision of the legislature. It provided further, that if a judge does not find the required valid law to apply, he should base his decision on "the principles of Islamic jurisprudence and its general theories; as well as from good custom which is consistent and in

Act No. 17 of 1968. 2 No. I5 of 1971. 3 Articles I and 3. I8o Personal Law in the Sudan [1973] J.A.L. conformity with the principles of Islamic jurisprudence and the rules of justice and good conscience".1 The Draft Constitution effectively imposed Islamic law as the basic law of the Sudan. If the Courts had to apply "custom", which we take here to mean tribal customary law, or any other law, it should be applied only when it is a "good custom" which is consistent and in conformity with Islamic jurisprudence and the rules of justice and good conscience. The Draft Constitution,.however, guaranteed the religious and educational rights of the non-Muslim communities. Two of the Directive Principles of State Policy affirmed the right of parents to choose the kind of education they wanted for their children as well as the freedom of religious minorities to establish and run their educational institutions in accordance with the law.2 The Draft Constitution guaranteed equality of all persons before the law as well as the freedom of religion, thought and conscience, and the right of all persons to profess their religion freely, subject only to such reasonable restrictions as are imposed by law in the interest of morality, public order or health. It guaranteed also the right of the parents and guardians to bring up their children and those under their care in accordance with religion of their own choice.3 The Draft Constitution of the Sudan was not passed by the Constituent Assembly, as was the case with the 1958 Draft Constitution, because the Parliamentary system of Government was overthrown on May 25th, 1969, in a bloodless military coup d'etat, which established the May Socialist Revolution.

The Sharia Courts (Amendment) Bill, z969 The last clause to section 5 (1) (a) of the Sharia Courts Act, 1967, did not come to the notice of the Sudan Council of Churches as well as other religious communities until April, 1969, when the Minister of Justice, on behalf of the Government, submitted to the Constituent Assembly a Bill to amend that particular clause. The proposed amendment was not prompted by the opposition of the Jews and the Christians to the extension of the jurisdiction of Sharia Courts to them in family matters but by the discovery that the clause did not achieve the intended object. While section 5 (1) (a) of the Sharia Courts Act extended the jurisdiction of the Sharia Courts to the Christians and the Jews, the Act did not confer jurisdiction on the Sharia Courts in a suit involving family matters to which one of the parties is a Muslim and the other a non-believer in any of the Holy Books. The proposed amendment was "to endow the Sharia Courts with jurisdiction overfamily matters wheneverone of the parties to the dispute is a Muslim irrespectiveof thefaith of the otherparty".4 The last clause to section 5 (1) (a) apparently escaped the notice of the Jewish and Christian communities, and therefore public debate and scrutiny, because the representatives of the Jewish and the Christian communities were not consulted. The Sharia Courts Act, 1967, itself was passed by the Council of Ministers as a Provisional Order, a procedure often used by the governments to enact unpopular measures and legislation.

, Articles I13, 114, 115 and 142. 2 Articles i8 and 19. 3 Articles 28 and 32. 4Explanatory Note to the Bill. Vol. 17. No. 2 Droit personnel au Soudan 18 Though the proposed amendment was simple and straightforward, the issue at stake was fundamental. The Bill proposed the deletion of the last words in section 5 (1) (a), namely: "or one of them believes in any of the Holy Books" and to substitute the words "or any one of them is a Mluslim" instead. Although the proposed amendment, if passed by the Assembly, would have excluded marriages and related matters of non-Muslims from the jurisdiction of the Sharia Courts and would have removed the confusion introduced into the Sudan family law by the Sharia Courts Act, 1967, it would, at the same time, have confirmed the supremacy of the Islamic law and denied the equality of all religions in the Sudan. The Bill aroused fierce opposition in and outside the Assembly and was transformed into a rallying point for all political forces opposed to the Islamic Constitution and religious bigotry. The Bill brought the Sharia Courts Act, 1967, under public scrutiny for the first time. Instead of the proposed amendment there was a call in and outside the Assembly for the repeal of the last clause of section 5 (1) (a) and the return to the situation prior to 1967. The Sudan Council of Churches sent a petition to the President and members of the Supreme Commission, the leaders of the Ansar and Khatmiya Sects, the Speaker of the Assembly, the Prime Minister and Minister of Justice, drawing their attention to the dangerous implications of section 5 (I) (a) of the Sharia Courts Act, 1967, and the proposed Amend- ment, as regards religious freedom and tolerance and calling upon them not only to withdraw the amendment but also to repeal the last clause to section 5 (I) (a) of the said Act. When the parliamentary regime was overthrown in May, 1969, the Heads of the Christian Churches sent a similar petition to the President of the Revolutionary Command Council and the Prime Minister. The Council of Ministers, by a letter dated July 12th, I969,1 informed them that the said Amendment Bill had not been passed and would not be passed. The latter was, however, silent on the repeal of the last clause to section 5 (I) (a) and the return to the situation prior to 1967. The Sharia Courts (Amendment) Bill, 1969, if passed by the Constituent Assembly, would have conferred jurisdiction on Sharia Courts in family matters if (i) all or one of the parties were or was Muslim, and (ii) the marriage'to which the question related was concluded in accordance with the Islamic law.

The Sharia Courts (Amendment) Act, 1970 The new Regime did not act on this controversial issue until May 6th, 1970 when the Sharia Courts Act, 1967, was amended. The 1970 Amendment2 was not substantially different from that proposed in 1969. It was indeed a compromise which did not meet the aspirations of the Islamic extremists nor did it restore the status quo prior to the Sharia Courts Act, 1967. It deleted the last clause to section 5 (I) (a) and substituted the words "if one of them was a Muslim at the time when the marriagewas contracted". So under the Sharia Courts Act, 1967, as amended in 1970, the Sharia Courts had jurisdiction in family matters if (i) all the parties were Muslims,

No. MW/i /A/5/4/587. 2 1970 Act No. 45- 182 PersonalLaw in theSudan [1973] J.A.L. (ii) the marriage to which the question or the suit related was concluded in accordance with Sharia law, or (iii) provided one of the parties was a Muslim at the time when the marriage was contracted. This Amendment, like the proposed Amendment of 1969, was undoubtedly an improvement on the confused situation of Sudan family law under the Sharia Courts Act, 1967. It excluded family matters between non-Muslims from the jurisdiction of the Sharia Courts. Though it imposed the jurisdiction of the Sharia Courts over mixed marriages to which one of the parties is a Muslim, this is confined only to marriages to which one of the parties was a Muslim at the time when the marriagewas contracted.It is clear that conversion to Islam by one of the parties after marriage would not confer jurisdiction on the Sharia Courts. The 1970 Amendment, just like the Sharia Courts Act, 1967, still raised serious problems for the validity of marriages contracted mainly in the Southern Provinces of the Sudan in accordance with the various tribal laws which do not recognise religion as a bar to marriage between Muslims and non-Muslims and in particular between Muslim women and non-Muslim men. Many Southern Sudanese, including prominent politicians, are married in accordance with customary law to Muslim women or women whose parents are or were Muslims. These marriages, though perfectly valid in accordance with Dinka or Zande law, would be considered null and void by the Sharia Courts, because the Islamic law prohibits a Muslim woman from marrying a non-Muslim unless he embraces Islam. The Amendment also took away from the Civil Courts jurisdiction over mixed marriages to which one of the parties was a Muslim at the time the marriage was contracted, regardless of the form or law under which the marriage took place. Besides the question of who is a Muslim, the Sharia Courts (Amendment) Act, 1970, introduced a new contentious issue. For the Sharia Courts to have jurisdiction over mixed marriages to which one party was a Muslim under the 197o Amendment it had to be established that the Muslim party was a Muslim at the time whenthe marriagewas contracted.The Amendment clearly excluded from the jurisdiction of the Sharia Courts marriages which became mixed marriages because of the conversion of one of the parties after marriage to Islam. These remained under the jurisdiction of the Civil Courts.

The Civil Code Act, y97u One of the primary goals of the May Socialist Revolution was to provide the Sudan with laws which reflect its traditions, beliefs and customs. The President of the Revolutionary Command Council and Prime Minister announced, on August 31st, 1970, the formation of a committee of legal experts to prepare drafts of the new laws.. The Committee consisted princi- pally of legal experts from Egypt, assisted by Sudanese. It began its work with the preparation of the draft of the Civil Code (covering the general principles of civil law, the laws of obligations [contracts and torts], agency, sales of goods and conflicts of law) which was considered to be a cornerstone of the new legal system. The Civil Code was to be followed by the Code of Civil Procedure including Pleadings, the Penal Code and the Code of Criminal Procedure, the Commercial and Maritime Code and finally a Code on Personal Law. The Committee completed the draft of the Civil Code early in February, 1971. It was circulated to the legal profession for comments and discussion. After taking into consideration the views of the legal profession and the interested public, the draft was adopted by the Council of Ministers and was Vol. 17. No. 2 Droit personnel au Soudan 183 signed by the President of the Revolutionary Command Council in a public ceremony on May 24th, 1971. The Civil Code Act, 1971, was to come into effect on October 2 st, 1971, thus allowing for a transitional period of about five months within which the Courts had to dispose of the cases pending before them in accordance with the English law as received in the Sudan. The Civil Code Act, 1971, marks a great shift away from English common law and jurisprudence. The Committee took most of the primary legal principles of the new Sudan Civil Code from Egyptian law and the laws of other Arab countries, as well as directly from the Islamic law. The Code effectively substitutes the principles of Islamic law as the primary residuary source of law in absence of express legislative provision or judicial decision. The Civil Code has 917 sections and is made up of four books. It is not my intention here to deal with the contents of the Code, but to confine my present examination only to the sections dealing with the general provisions and personal law. These matters are dealt with in sections 3, 4 and 5. The Code applies to all matters dealt with therein expressly or by way of implication. It shall also apply to all matters not provided for in any other enactments dealing with special topics such as commercial and maritime law.' Section 4 of the Civil Code reproduces more or less Article 142 of the 1968 Draft Constitution of the Sudan. The Court, in interpreting any law, has to take into consideration the socialist character of the State. If it does not find any provision dealing with any matter before the Court, it shall apply the principles of the Islamic law; if it cannot find a principle of Islamic law applicable, it shall act in accordance with custom, provided it is not contrary to public order or morality; and if it fails to find a principle of Islamic law or custom to apply, the Court shall act in accordance with the principles of natural law and justice.

Personal law of non-Muslims under the Civil Code Act, 1971 The Civil Code repealed sections 5 and 9 of the Civil Justice Ordinance, 1929, which laid down the law to be administered in personal matters. The Code deals separately with Sudan conflicts of law.2 Section 5 deals only with the law to be applied in personal matters of non-Muslim Sudanese. It reads as follows: (x) "Where there is no enactment regulating personal matters of non-Muslim Sudanese, the Court shall apply Custom which is not contrary to public order or morality, and if there is no such custom applicable to them, the Court shall apply the principles of natural law and justice; provided in any case the parties may agree to have the principles of Sharia law applied to them. (2) Personal matters shall include disputes and issues related to status and capacity of persons; family relations like engagement, marriage, the rights and duties of husband and wife, mahr,dowry, rules regulating owner- ship of property between husband and wife, divorce, judicial dissolution of marriage, separation, paternity suits, admission and denial of parent- hood, the relationship between ascendants and descendants, maintenance of relatives, marriage relations, declaration of blood relationship, adoption, guardianship, wardship, interdiction, administration, lost persons,

1S. 3- s Ss. 13-36. 184 Personal Law in the Sudan [1973] J.A.L. and decision declaring such persons dead, disputes and issues connected with succession, bequests and all other transactions which take effect after death."'

Section 5 of the Civil Code no doubt defines personal matters in greater detail than section 5 of the Civil Justice Ordinance, 1929. It instructs the Courts in case of personal matters of non-Muslim Sudanese to apply: (1) Any enactment in force regulating such matters; if no such enactment exists- (2) the custom applicable to the parties concerned; and if there is no custom applicable to the parties because, for instance, they adhere to two different religions- (3) the principles of natural law and justice. The parties, however, can agree to have the principles of Islamic law applied to them. Though the form of their request is not fixed, it will have to be in writing as was the practice under section 38 of the Civil Justice Ordinance, 1929, in the case of Muslims consenting to the jurisdiction of the Civil Courts in personal matters.2 Except for the substitution of "public order or morality" and "natural law and justice" for "justice, equity and good conscience", the Civil Code has retained intact the framework of personal law of non-Muslims as laid down under sections 5 (a) and 9 of the Civil Justice Ordinance, 1929, as well as the judicial precedents interpreting and applying these sections. As under section 5 (a) of the 1929 Ordinance the word "custom" under section 5 (1) of the new Civil Code may be interpreted to mean personal law of the parties concerned. This could be one of the customary laws of the Sudan or the religious law of one of its non-Muslim communities. The Court, as under section 5 (a) of the Civil Justice Ordinance, 1929, can refuse to apply a provision of any personal law if in its opinion such a provision or rule is contrary to public order or morality.3 There is also no doubt that the Civil Courts, in applying the principles of natural law and justice under section 5 (1) of the Civil Code, would follow the judicial precedents laid down in the application of "justice, equity and good conscience" under section 9 of the Civil Justice Ordinance, 1929 in personal matters.4 The Civil Code has not, however, Solved or removed all the inherent contradictions in Sudan personal law, particularly the additional confusion introduced by the Sharia Courts Act, 1967, and partially removed by the Sharia Courts (Amendment) Act, 197o.

The Judicial Authority Act, 1972 Some of the internal conflicts in Sudan personal law brought about by the existence of two sets of Courts and the Sharia Courts Act, 1967, have now been removed by the Judicial Authority Act, 1972,5 which came into force

1 My own translation, from the original Fin Arabic]. 2Heirs of Abdel Rahim Idris v. Fatma bint Abdel Rahim, and Raginalla AhmedFadlalla v. Abdel Gazim and Ragab Murgani, Supra. 3 See Mfaria ConstantineGambouris v. ConstantineProcos, and MIoneibConstantine v. Zakia Eliza Tifara, Supra. 4 See Tanni v. Mariam bint Basta, Farouza GindiHabashi v. Luga Habashiand Others, and Stergiouv. iKrithariStergiou, Supra. S Act No. 32 of 1972. Vol. 17. No. 2 Droit personnelau Soudan 185 in June, 1972.1 This Act repealed the Judiciary Act, 1969, the Sharia Courts Act, 1967, sections I to to of the Sudan Mohammedan Law Courts Organ- isation and Procedure Regulations, 1916, and all sections of the Civil Justice Ordinance, 1929, and the Code of Criminal Procedure, 1925, which dealt with the constitution of civil and criminal Courts.2 The provisions of the Judicial Authority Act, 1972, prevail over the provisions of any other Act in cases of conflict or inconsistency and the provisions of the Act shall be deemed amended to the extent necessary to remove such conflict or inconsistency.3 The Judicial Authority Act, 1972, merged the Civil and Sharia Courts into one system of State Courts responsible for the administration of justice in all fields of life including personal matters of Muslims and non-Muslims.4 This Act, which consists of 126 sections in addition to Regulations on the Judges' Conduct issued by the Minister of Justice under it after consultation with the Council of the Supreme Court, has introduced a major reorganisa- tion in the structure, hierarchy and internal administration of the Sudan Judiciary. The Act establishes four types of Courts: (I) the Supreme Court, (2) the Court of Appeal, (3) the Province Courts, and (4) the District Courts, although any other courts may be established by law.5 These Courts are competent to hear and determine all disputes, suits and crimes, except matters excluded from their competence by special provision of the law, and have jurisdiction to determine all matters brought before them in accordance with the law. The Courts may not however entertain directly or indirectly any matter or suit involving sovereignty or Act of State. They exercise their jurisdiction in specialised Panels or Divisions.6 The jurisdiction and the powers of the Courts remain as laid down in the Civil Justice Ordinance, I929, and the Code of Criminal Procedure, 1925, or any other enactment replacing any or all of them.' Throughout the hierarchy of the Courts from the District Courts up to the Supreme Court, there is a separate Panel entrusted with the hearing and determining of suits involving personal matters both of Muslims and non-Muslims either in the first instance or on appeal.8 The Courts in settling disputes or suits involving personal matters are to follow the procedure laid down in the Civil Justice Ordinance, I929, or any other enactment replacing it.9 As seen earlier, sections 5 and 9 of the Civil Justice Ordinance, 1929, which laid down the Law to be applied in personal section of the Civil Code matters, were repealed and replaced by 5 Act, 197 i. Section 5 of the Civil Code however deals only with the personal matters of non-Muslim Sudanese. Therefore, in settling disputes involving personal matters, the Courts shall apply the provisions of (i) section 5 and other sections of the Civil Code dealing with the Sudan Conflicts of law, and (2) section 53 of the Sudan Mohammedan Law Courts Organisation and Pro- cedure Regulations, I916. This means that the Courts, in case of non-Muslim

1 Legislative Order No. 19 of 1972. 2 Chapter 3, ss. to (a) and (b) and I 1-26 of the Civil Justice Ordinance 1929, and ss. 7, 8 (a), (c) and (d), 9 and 261 of the Code of Criminal Procedure 1925- 3 S. 2. I S. 3 (I). ,S. 6. 6 S. 7. 7'S. 8. 8 See ss. to (c), 15 (b), 18 (b) and (d) and 21 (b). " S. 5. I86 PersonalLaw in theSudan [I973] J.A.L. Sudanese, shall apply (r) any enactment in force regulating such matters; if no such enactment exists, (2) the custom applicable to the parties concerned, and if there is no custom applicable to the parties concerned, (3) the principles of natural law and justice. The non-Muslim Sudanese can always agree to have the principles of Islamic law applied to them. In the case of Muslim Sudanese, the Courts shall apply Islamic law in accordance with authoritative doctrines of the Hanafiya Jurists subject to the modifications introduced by Judicial Circulars and Memoranda issued by the Grand Kadi. The Judicial Authority Act, 1972, has not only abolished the dichotomy between the "secular courts" represented by the Civil Courts and the "religious courts" in the form of the Sharia Courts and all that goes with such dichotomy; it has also overcome the attempt represented by section 5 (1) (a) of the Sharia Courts Act, I967, to bring mixed marriages between Muslims and non-Muslims under the jurisdiction of the Sharia Courts as well as the attempt to transform those Courts into Courts of general competence and residuary jurisdiction instead of the Civil Courts. It has not, however, resolved the internal conflicts inherent in the Sudan personal law. Prior to 1967, the Civil Courts had a mandate under section 9 of the Civil Justice Ordinance, 1929, to settle disputes involving personal matters between parties who had no custom applicable to them, in accordance with "justice, equity and good conscience", and the suits settled under section 9 included suits between Muslims and non-Muslims.1 Although this still pertains under section 5 of the Civil Code in respect of non-Muslim Sudanese, in that the Courts would now apply the principles of natural law and justice if there is no enactment or custom applicable to them, the Civil Code and the Judicial Authority Act, 1972, are silent as regards suits to which one of the parties is a Muslim and the other a non-Muslim. Though the repeal of the Sharia Courts Act, 1967, has more or less restored the status quo prior to 1967, it has left behind it a major lacunain the law which was not there under sections 5 and 9 of the Civil Justice Ordinance, 1929, which were repealed the Civil Code by Act, I97I. III-THE FUTURE OF SUDAN PERSONAL LAW There is no doubt that the repeal of the Sharia Courts Act, I967, by the Judicial Authority Act, 1972, would have been welcomed by the non- Muslim communities of the Sudan even though it had not restored the status quo as it was prior to 1967. As pointed out earlier, the framework of personal law laid down under the Civil Justice Ordinance, 1929, was dictated not only by the religious and cultural diversity but also by a positive recognition of equality of all religions. While the Ordinance ensured that the personal affairs of different communities should be governed by their own personal laws, suits between members of different communities involving personal matters were to be settled by the Civil Courts in accordance with "justice, equity and good conscience". This framework was upset by the partisan efforts of the Islamists to subject suits involving family matters between non-Muslims and Muslims to the jurisdiction of the Sharia Courts. Though section 5 of the Civil Code now adequately reproduces the spirit as well as the provisions oefsections 5 and 9 of the Civil Justice Ordinance, 1929, as regards personal

' See Farouza Gindi Habshi and Anotherv. Luga Habshi and Others,H.C.-C.S.-8-1949, and Stergiouv. Stergiou(1963), S.L.J.R. 182, Supra. Vol. 17. No. 2 Droit personnelau Soudan 187 matters of non-Muslim Sudanese, neither the Civil Code nor the Judicial Authority Act, 1972, gives any guidance as to how the Courts should settle suits involving personal matters between Muslims and non-Muslims. This is a major and sensitive issue to be left to the Courts to settle in accordance with the general principles of law. It is probable that the Courts in settling suits involving personal matters between Muslims and non-Muslims would have to act in accordance with section 4 of the Civil Code. This instructs the Courts, where they do not find any provision of the law dealing with any matter before them, to apply (1) the principles of Islamic law, and if they cannot find a principle of Islamic law applicable; (2) they shall act in accordance with custom, provided it is not contrary to public order or morality, and if they fail to find a principle of Islamic law or custom to apply; (3) the Courts shall act in accordance with the principles of natural law and justice. All this means in practice is that the Court, in the absence of express provision in the law, shall decide any suit before it, first in accordance with the general principles of Islamic law; failing that, in accordance with the principles of customary law, provided that they are not contrary to public order or morality; and, failing that, in accordance with the principles of natural law and justice, in that order of priority. As has been stated earlier, the developments introduced into the Sudan personal law by the Sharia Courts Act, 1967, and the Child Care Act, 1968, were not motivated by any genuine desire to have a uniform personal law in the Sudan. Though a uniform personal law is a noble goal for which we should strive, it would be neither politically feasible nor practical at the present stage of social and economic development of the Sudan. As was the experience of Kenya, such a measure would not please any of the communities concerned.1 To impose a uniform code of personal law would not only be an act of political folly but would also produce chaos because it would be out of step with the traditions of the rural folk. What then is the future of Sudan personal law? Though I am in favour of the present arrangement which allows the various Sudan communities to regulate their personal matters in accordance with their personal laws, the State should step in and regulate by law the inter-community personal matters and hence remove the inherent internal conflicts that now exist in Sudan personal law. While guaranteeing religious freedom and practice to its citizens, the State has the duty to help remove religious prejudice and social barriers among its population. There are certain matters, such as the minimum marriageable age and consent to marriage, which should not be left to the different communities to determine in their own way. In its effort to unite its people and build a modern nation, any measure aimed at restricting pluralism and breaking down religious and social barriers should be one of the national goals.

1 See (x) Report of the Kenya Commission on the Law of Succession. Nairobi: Govern- ment Printer, 1968, pp. iii, 167; (2) Report of the Kenya Commission on the Law of Marriage and Divorce. Nairobi: Government Printer, 1968, pp. 209; and in particular (3) National Assembly of Kenya, Debates on the Law of Succession Bill, 1931-65, 200o-45, 2078-98, November 17th-I9th, 1970; 2nd Reading. The members of the Assembly expressed in emotional arguments the fact that they saw little or no need for a uniform law of succession. It was alleged that the enactment of such a measure would produce chaos and was out of step with African traditions. Muslim speakers urged that the proposed uniform law would be contrary to their religion. On the whole, the Bill was described as too foreign and was attacked as being contrary to African traditions and to Islamic law. 188 Personal Law in the Sudan [1973] J.A.L. Though uniform law in this field is out of the question, there are measures that can be enacted in the greater interest of the country and its national unity and integration, as well as the individual freedom and freedom of action of individual citizens in personal matters. I do believe strongly that legislation has a positive role in modern nation building. Some of the recommendations put forward here have been suggested elsewhere.' The first group of recommendations deal naturally with marriage. Besides marriages contracted abroad, Sudan personal law recognises marriages contracted in accordance with (i) Islamic law, (2) the customary law of any tribe found in the Sudan, (3) the Non-Mohammedan Marriage Ordinance, 1926, or the religious law of any of the Excepted Communities under that Ordinance, and (4) any religious law of any community found in the Sudan. The customary laws of many tribes do not recognise religion as a bar to marriage. There are many marriages between Muslim women and non- Muslims, which are otherwise valid according to customary laws under which they were contracted, but their validity is a matter of concern not only because of the lacuna in the law but also because such marriages are null and void as far as Islamic law is concerned. Islam prohibits a Muslim woman from marrying a non-Muslim. Similar prohibitions exist in Christianity and Judaism. The problem is indeed acute in the Southern Sudan, where Christianity and Islam are relative newcomers and the majority of the Southern Sudanese continue to organise their personal matters and relations in accordance with their customary laws which do not recognise religion as a bar to marriage or succession. The Christian Churches have more or less come to terms with various customary laws as far as marriage is concerned. It is now an established practice that no Christian can get married in accordance with Church law unless the requirements of customary marriage, including the payment of bridewealth, have been met. If the bridewealth is not wholly paid, then there must be an agreement on the payment on the deferred bridewealth. This means in practice that the Church marriage, which is monogamous, takes place after a valid marriage has been contracted in accordance with customary law. That was why the decision of the High Court which was upheld by the Chief Justice, in respect of Objection by Alfred Wol Akoc and Isaiah Majok Akoc to the marriage of their half-sister Susan Aluel Akoc2 to Manoah Pabek Muorwel3 under the Non-Mohammedan Marriage Ordin- ance, I929, is of particular interest.4 In this particular case, two educated Dinka, one a veterinary doctor of 27 and the other a schoolteacher of 23, applied to be married under the above Ordinance without the consent of the family of the prospective bride. An objection was filed by applicants in which they put forward the grounds of their objection to the proposed marriage, under section 26 of the Non- Mohammedan Marriage Ordinance; namely: i. All the parties to the marriage are Dinka and the essential validity of the marriage should be governed by Dinka customary law.

1 See Natale Olwak Akolawin, (1) "Islamic and customary law in the Sudan: problems of today and tomorrow"; in Sudan in Africa, K.U.P., 1971, pp. 279-301. (2) "The Role of Legislation in Modern Nation Building". Proceedings of the I6th Conference of the Philo- of the Vol. 1-26. sophical Society Sudan, I,. pp. 2 All Roman Catholic and Dinka Rek of Tonj. 3 Protestant and Dinka Agar of Rumbek. 'Kmc./H.C./Gen./6-9 (x), X.R./Gen./6-9 (4), I965. Vol. 1 7. No. 2 Droit Personnelau Soudan 189 2. Under Dinka customary law no woman can contract a valid marriage irrespective of age without the consent of the woman's parents or guardians and that no such consent has been given to the intended marriage. 3. No marriage would be valid according to the Dinka Customary law unless bridewealth had been agreed upon between the families of the bride and bridegroom, which must be paid before the parties are considered husband and wife or an agreement is reached as to the collection of bridewealth after the marriage has taken place. 4. Since no consent was given, there is no agreement as to bridewealth and its payment, therefore the parties should not get married under the Ordinance.

The applicants pleaded that in Sudanese society and, in particular, in Dinka society, parents and guardians have a moral, as well as legal, duty to look after the welfare of their daughters before and after marriage and daughters cannot get married without their blessing. The objection was rejected by the High Court as not being based on a just cause and that it was inadequate and frivolous. MOHAMED EL MUBARAK AHMED,J., stated in his judgment: "The main (and perhaps only) ground for objection is that Manoah Pabek was to get married to Susan Aluel Akoc contrary to the recognised Dinka custom, which (in brief) requires the parents or other near relatives of the boy to approach the parents or near relatives of the girl and then the bridewealth is agreed to. It is always paid in cattle. After such payment, it is stated that, the marriage is officially celebrated and the bride is delivered to the husband. It sometimes happens that the wife is delivered to the husband before the bridewealth is delivered, but in such cases there is usually an understanding by the husband to deliver the bridewealth later. Manoah and Susan state that all efforts by the former to comply with the tribal Dinka custom in respect of marriage were hindered by the objectors who are refusing their sister to get married to the man she wanted. The proper grounds for objection are stated in the second paragraph of section 26 of the Non-Mohammedan Marriage Ordinance. None of the parties to the intended marriage is under 21Iyears of age. There is no impedi- ment on account of a subsisting marriage or on account of kindred or affinity or that any of the circumstances which render a marriage voidable under section 9 of the Ordinance. As far as I can see there is no lawful hindrance to the marriage under the personal law applicable to either party. All the two objectors are referring to is the Dinka custom of marriage. Having heard I of the parties interested in this matter (including the objectors) I feel almost certain that the intending husband did all he could to comply with the tribal custom of marriage and is still agreeing to comply with these customs."

Susan Aluel Akoc and Manoah Pabek Muorwel were subsequently married under the Ordinance without prior payment of bridewealth or an agreement for later payment. And as far as I know no bridewealth has been claimed or collected by the relatives of Susan Aluel. I had to deal with the above case at length in order to show the conflicting laws and interests involved. The provisions of the Non-Mohammedan Marriage Ordinance do not of course apply to the pagan tribesmen, but do they apply to the tribesmen who have embraced Christianity? What is then the law applicable to the marriage of two Dinka Christians ? Can they avoid altogether the essential conditions of marriage under Dinka customary law by opting to be married under the Ordinance? Though I am in agreement with the judgment that the refusal of consent to marriage by the relatives of Susan Aluel could be considered as unreason- go90 Personal Law in the Sudan [1973] J.A.L. able, it is my considered opinion that the law applicable to their marriage is Dinka customary law. The High Court, while holding that the Dinka customary law was applicable, could have held that the refusal by the relatives of Susan Aluel to give their consent to marriage was unreasonable and, provided the intended husband and his relatives could produce the required bridewealth or evidence of their willingness and ability to pay the bridewealth in accordance with Dinka customary law, the parties could be married under the Ordinance without the consent of the relatives of the bride. There is no doubt that the Non-Mohammedan Marriage Ordinance was intended to regulate marriages among Christian and other communities whose ways of life have been completely Europeanized and cannot be applied as the only basis of marriage for the indigenous Christians who still organise their personal relations in accordance with their customary laws. Subject to the problem of consent to marriage, the practice now followed by the Christian Churches in dealing with marriages, which is itself a synthesis of the rules of customary law and the Church law, is a commendable development. Though the various Christian denominations do not generally approve of their members marrying outside their denomination, it is possible for non- Muslims belonging to different religions to contract a civil marriage under the Non-Mohammedan Marriage Ordinance, 1926, although such a marriage would be monogamous in character. This was what Manoah Pabek, a Protestant and Susan Aluel, a Roman Catholic, did in the above case. Susan Aluel did not only have the consent of her relatives to marry Manoah Pabek but also the dispensation from his Church to marry a non-Catholic. No similar facility exists for a civil marriage between a Muslim and a non- Muslim. Leaving aside the question of the validity of marriages contracted between non-Muslims and Muslim women in accordance with customary law, I see no reason why a Muslim woman who is prepared to marry a non-Muslim should not be given the facility by the State to do so. If the parties are prepared to live as man and wife, why should the offspring of such a union be legally and socially condemned for no fault of their own or of their parents? Let me again state categorically that I support the present legal pluralism which allows the personal affairs of each particular community to be governed by its personal law. But should a member of a particular community decide to marry someone who is not a member of his or her religion, he or she should not be prevented in effect from doing so, because of the absence of any legal facility. I would recommend that the Sudan should follow India on this matter. While the State should retain the framework of personal law it should enact a law under which Sudanese belonging to different religions, including Islam, could marry without any of the parties being, in effect, compelled to give up his or her religion. Either the Non-Mohammedan Marriage Ordinance, 1926, should be amended in order to apply to citizens regardless of their religions or an Act modelled on the Indian Special Marriage Act, 1954,1 should be enacted. This recommendation is the result of practical experience. With greater educational opportunities and greater social intercourse between the younger generations the present framework of personal law would be a source of hardship to many and indeed it could be a heartbreaking hardship.

1 Act No. 43 of '954. Vol. 17. No. 2 Droit personnelau Soudan 191 I was personally involved in helping to arrange a marriage in 1968 between a colleague of mine, at that time a lecturer in the University of Khartoum, and a Muslim, to a non-Muslim woman student, of Greek Orthodox faith, whose father refused to give his consent to their marriage, on the ground that the intended husband of his daughter was a Muslim, and his religion prohibited such a marriage. Though the woman was 23 at the time and could dispense with the consent of her parents under the Non-Mohammedan Marriage Ordinance, 1926, they could not get married under that Ordinance, because one of them was a Muslim. Failing to convince her father and relatives, the young woman fled from her home and was in hiding until the day she was married, in accordance with Islamic law. Though she could have married in accordance with Islamic law without becoming a Muslim, she embraced Islam and for all legal purposes cut herself off from her parents and relatives. Though her father and relatives reluctantly agreed to the marriage some hours before she was married in accordance with the Islamic law, they continued not to recognise the Islamic marriage and insisted on a secret marriage in accordance with Greek Orthodox canon law. Here is a typical case, where two intelligent adult persons, belonging to different religions, were in love and were willing to marry each other, but religious and social prejudice stood in their way. Had the woman not decided to break with the family which she dearly loved, and to give up her religion, she might not have overcome the family opposition to her marriage. She would not have undergone the ordeal she experienced had there been a law under which a Muslim and non-Muslim could contract a monogamous marriage. It is not only Islam, therefore, which prohibits women adhering to it from marrying non-Muslims; the Christian religion and Judaism also disapprove of marriage to persons outside the faith. While the State allows different communities to regulate their personal matters in accordance with their personal law, it should also recognise individual freedom of action vis-4a-vis the family or the religious community. The Indian Act referred to above provides inter alia for a marriage between any two persons regardless of religion, provided neither party has a spouse living, neither is an idiot or a lunatic, and the male has attained the age of 21 and the female the age of 18. This kind of enactment would be a welcome development in the Sudan. It would not in any way undermine any religion. I would also recommend that the State should lay down that free consent by all the parties to marriage, as well as by their parents or guardians, is essential for the validity of any marriage contracted in the Sudan, provided that the parties to a marriage can dispense with the parent's or guardian's consent after attaining the age of 21. The State should also fix, by law, a minimum marriageable age and introduce compulsory registration of all marriages contracted in the Sudan. I would recommend 18 years for women and 21 years for men. These measures would, to a certain extent, help in eliminating child marriage. The decision of the Court of Appeal in iMoneibConstantine v. Zakie Elias Tifayal that, in settling suits involving custody of children, the Civil Courts should give precedence to the interests of the children regardless of the personal law of the parties, should be applied generally. The above decision was followed by the High Court in Maria Adwok v. Gideon Tokmac.2 This

1 A.C.-APP-3-1946. 2 H.C.-C.S.- 82- 1969. 5 192 PersonalLaw in theSudan [1973] J.A.L. case involved a suit for the custody of a boy of 91 years, born out of wedlock. The applicant, the mother, was a Shilluk and the defendant a Dinka. Each of them was claiming custody in the light of his tribal law. Both parents were educated and lived in Khartoum. Though the High Court was prepared to follow Shilluk law on compensation for unlawful conception out of wedlock and for the legitimation of the child by the father, the Court refused to follow the competing laws over custody and held that the paramount interest of the child should be the sole guide in reaching its decision. In this particular case, custody was awarded to the father. Nevertheless, the order was not unqualified. The Court held that the applicant, being the child's mother, was entitled to see the child and could apply to the Court at any time for a variation to the order of custody, if there were reasons for such application. The problem presented by a religious bar to marriage applies to inheritance. Islamic law prohibits a non-Muslim from inheriting from a Muslim. As in the case of marriage, this is a rule which will be honoured more in the breach than in the observance in the Southern Provinces of the Sudan, for reasons already stated. Though a Muslim may dispose of up to one-third of his property by will, and this may include bequests to his non-Muslim parents and relatives, to whom would the rest of the property go, if he had no Koranic heirs? Should he die intestate and all of his relatives are non-Muslims, to whom would his property go? Is it right to deprive his parents and siblings of their natural right to inheritance, merely because their son or sibling adheres to a different religion ? The decisions of the Civil Courts in this respect are commendable and should be enacted as the law of general application. The Court of Appeal, in Heirs of Anis A. Ibrahimv. ShefikMina, refused to uphold a claim by the plaintiff that one of the defendants, having married a Muslim, was not entitled to inherit her share of her Coptic mother's estate on intestacy. Likewise the High Court, in FarouzaGindi Habashi and Another v. LugaHabashi and Others1held that conversion to another religion would not relieve a party from the obligation to maintain his relatives. I would therefore recommend that any new enactment should provide that no one should be debarred from inheriting any property which he or she would otherwise inherit by virtue only of the fact that he or she adheres to a religion other than that of the deceased, nor should conversion to another religion relieve a party of the obligation to maintain his relatives. In summary, the proposed enactment, which can be called "The Special Provisions (Personal Matters) Act", should lay down that: i. Religionshall not be a bar to marriageor inheritanceand that conversion to anotherreligion will not relievea party of his obligationto maintain his or her relatives. 2. (i) Consent of the parties to marriage as well as that of their parents or guardians is essential to the validity of marriage. The parties can however dispense with the parents' or guardian's consent on completing the age of 21 years. (ii) The minimum marriageable age shall be 18 years for women and 2I vears for men. (iii) All marriages contracted or celebrated in the Sudan under any form recognised by law must be registered with the Registrar of Marriages or an official appointed for that purpose under this Act.

1 H.C.-C.S.-8-1949- Vol. 17. No. 2 Droit personnel au Soudan 193 3. In determining suits involving custody of children the interests of the children shall be paramount. 4. The provisions of this Act shall prevail over the provisions of any other law.

There is no prospect that such legislation could be enacted in the near future, incorporating all or some of the above recommendations, because of the religious sensitivities involved, but with closer integration of the various Sudanese communities such an Act would become a necessity in the interest of overall national integration and religious tolerance.

EPILOGUE Since the completion of the article two major political and constitutional developments have taken place which have had a direct impact on the legal developments in the Sudan, particularly in the field of personal law. I have pointed out earlier that though the Sudanese are agreed on enacting laws which reflect their beliefs, customs and traditions, the actual contents of these laws have been, and remain, matters of bitter political controversy. I have also pointed out the stands of the protagonists, whom I called the Islamists, the pan-Arabists, and the third group (not formally organized) which stands for an eclectic approach, advocating the adoption of what is best from English law, Islamic law, Egyptian law and laws of other countries and from Sudanese customs and traditions. The developments in the law prior to May, 1969, were influenced by the Islamists. The Civil Code Act, 1971, which marked a great shift away from English common law and jurisprudence, the Civil Pleadings Act, 1972 (Act No. 41 of 1972), and the Evidence (Civil Provisions) Act, 1972 (Act No. 40 of 1972), were the work of the pan-Arabists. These Acts took most of their primary legal principles directly from Egyptian law and laws of other Arab countries as well as directly from Islamic law. The pan-Arabist influence in the development of the law came to an abrupt end with the removal of Sayed Babiker Awadalla from the Ministry of Justice on August i6th, 1971, and their exit from the government in 1972. On October Ist, 1972, the new Minister ofJustice, Sayed Ahmed Suleiman, set up a 22-man Law Study and Revision Committee under the chairmanship of Sayed Mohamed Ahmed Abu Rannat, the first Sudanese ChiefJustice. The majority of the Committee, which consisted of judges, members of the Sudan Bar and University law teachers, were common-law lawyers. The Committee was entrusted with (I) the further study and revision of (a) the Civil Code Act, 1971, (b) the Civil Pleadings Act, 1972, (c) the Evidence (Civil Provisions) Act, 1972, and (d) the Draft Penal and Commercial Codes, and (2) making recommendations as to whether any of the above laws should be repealed, suspended or amended as soon as possible. It was, however, soon dissolved by the Minister because of conflicts and quarrels among the members. The appointment of the Committee itself, and the terms of reference, had indicated the swing of the pendulum away from pan-Arabism. The second major development which has a bearing on personal law and its development was the promulgation of the Permanent Constitution of the Sudan in May, 1973. Article 9 of the new Constitution provides that the Islamic law and custom shall be the main sources of legislation in the Sudan and that personal matters ofnon-Muslims shall be governed by their personal laws. In implementing Article 197 of the Constitution, the President of the Republic appointed Professor Dr. Zaki Mustafa, former Dean of the Faculty 5* 194 Personal Law in the Sudan [1973] J.A.L. of Law, University of Khartoum, as Attorney-General of the Sudan, who is a Minister by virtue of his office. Five pieces of legislation, dealing with the judicial and legal system, came into force on May 8th, i3th, I5th and 17th, 1973, respectively, namely: the Judiciary Act (No. 2 of 1973); the Supreme Council of the Judiciary Act (No. 3 of 1973); the Attorney-General Act (No. 8 of i973); the Organization of the Laws Act (No. 9 of 1973); and the Salaries of the Judiciary (Amendment) Act (No. Io of i973). I shall deal only and briefly with the Judiciary Act, i973, and the Organization of the Laws Acts, 1973- Though the Judiciary Act, 1973, repealed the Judicial Authority Act, 1972 (No. 32 of I972), and the Exercise of the Judicial Powers Act (No. 45 of 1972), it retained the merger of the Civil and the Sharia Courts and does not differ radically from the Judicial Authority Act, 1972. The organization and the structure of the courts remain more or less as they were under the 1972 Act. It is the Organization of the Laws Act, 1973, which is of major importance because it has totally reversed the developments in personal law triggered off by the Sharia Courts Act, 1967, and has restored substantially the status quo prior to 1967. The Organization of the Laws Act, i973, repealed the Civil Code Act, the Civil and the Evidence i971, Pleadings Act, 1972, (Civil Provisions) Act, 1972. It restored a number of statutes.' A new provision was substituted for section 9 of the Civil Justice Ordin- ance, 1929, which states as follows:

"In cases not provided by any enactment in force the Courts shall apply principles established by precedents of Sudan Courts, the principles of Islamic law, custom, justice and good conscience."

Except for the merger of the Civil and Sharia Courts into one system of State Courts and the new provision governing cases where there is no specific legislation, the framework of Sudan personal law is now as it was prior to the passing of the Sharia Courts Act, 1967. The basic statutes on the personal law of the Sudan are therefore: (i) section 5 of the Civil Justice Ordinance, 1929; (ii) section 51 of the Sudan Mohammedan Law Courts Organization and Procedure Regulations, 1916; and (iii) section 7 of the Organization of the Laws Act, 1973. In settling personal matters in accordance with section 5 of the Civil Justice Ordinance, 1929, the courts now apply the custom applicable to the parties concerned in cases of non-Muslims and Islamic law as interpreted by the Hanafia School in cases of Muslims. If there is no custom or law applicable to the parties (where, for instance, they adhere to two different religions or belong to two different communities), the courts will act in accordance with the provision of section 7 of the Organization of the Laws Act, 1973. N.O.A.

1 and (I) The Civil Justice Ordinance, 1929, except the following: (a) s. 9, (b) chapters 3 4, dealing with constitution and powers of the courts. (c) ss. 186 and 173, (d) chapter 23, dealing with revisions, and (e) Orders XII and XIII of the First Schedule; (2) the Pre- scription and Limitation Ordinance, 1928; (3) the Pre-emption Ordinance, 1928, and (4) the Sudan Mohammedan Law Courts Organization and Procedure Regulations, 1916, except ss. 1-53 (with the exception of s. 5i), ss. 179-207, provided that these Regulations shall apply in the settlements of personal matters of the Muslims. Vol. 1 7. No. 2 Droit personnel au Soudan 195 RESUME

STATUT PERSONNEL AU SOUDAN-TENDANCES ET DPiVELOPPEMENTS Apres une description detaille de la maniere dont le droit du statut personnel a acquis au Soudan un caractere pluraliste suite a la Civil Justice Ordinancede 1929 et i la Sudan MAohammedanLaw Courts Ordinanceanterieure, et la maniere dont ce syst?me fonctionna a travers d'autres textes 16gislatifs et les d6cisions des tribunaux avant et apres l'ind6pendance, les mouvements de r6forme du statut personnel au Soudan sont cxaminds. Les etapes diverses par lesquelles les tentatives de rdforme du droit ont passe suite aux modifications de la politique gouvernementale sont 6galement examindes. En particulier, les mouvements en vue de remplacer diverses sources du droit par le droit musulman et la tentative de fusionner les tribunaux civils et musul- mans de meme que celle de revolutionner le svsteme juridique national par la promulgation du Civil Code Act de I971 sont soit esquisses, soit 6tudies en d6tail. Une attention particulikre est attachie a l'impact de la l6gislation sur la position de la minorit6 non-musulmane au sein du systeme juridique soudanais et 'a la manire dont elle a kt6 affectee par les mouvements de rdforme du droit substantif et du Des sont 'a la manie're dont le droit systeme judiciaire. suggestions ' prdsent6es quant relatif au mariage, aux successions et la tutelle des enfants pourra rencontrer les exigences de l'int6gration nationale et le besoin de toldrance religieuse.