The largest country in Africa prior to the secession of South Sudan, Sudan is a land of contrasts. Half of the country is covered by the vast Nubian and Libyan Deserts, while its major cities are nestled along the fertile Nile Valley. A majority Muslim and Arab nation, the Sudanese legal system has vacillated between sharia and secular law throughout the nation’s history.
Sudan’s history is characterized by a centuries-old tension between its North and South regions. Unlike the North, which would become present-day Sudan, the majority of Southern Sudan has never been Muslim or Arab. Its richly diverse population includes 64 tribes. Southern Sudan retained its distinct identity through the centuries thanks to a natural border of rivers preventing extensive contact with outsiders.
Islamic Law Under the Mahdi State
North and South Sudan were first brought together under Turko-Egyptian colonial occupation from 1820 to 1882, which established the borders of the pre-secession independent Sudan. During this period, the government and jellaba (urban Arab traders from the North) vastly expanded Sudan’s pre-existing slave trade. Thousands of troops were sent to raid the South. Approximately two million Southern Sudanese, mainly of the Dinka tribe, were captured and sold into slavery during this time.
In 1882, Northern Sudanese launched a revolt against Turko-Egyptian rule, led by Mohammed Ahmed ibn al-Sayyid, known as the Mahdi (holy savior). By 1885, the Mahdi coalition captured the capital city, Khartoum, and established an independent state. A strictly Islamic movement, the new Mahdi state implemented Islamic law across the country, angering the largely non-Muslim South. The slave trade also continued during this period, further entrenching the North’s power over all of Sudan.
Anglo-Egyptian Rule and Independence
The Mahdi state lasted just under two decades; determined to control all of Eastern Africa, British and Egyptian troops conquered Sudan in 1898. During the first half of the 20 th century, Sudan was then ruled as a condominium state under a mixture of Anglo-Egyptian rule. While “in theory Egypt shared a governing rule,” British officials retained de facto control of the territory. The British focused their infrastructure projects in the North, building irrigation dams and cotton farms. Residents in the North additionally received access to higher education and positions in the British administration. By contrast, the South was left largely ignored and undeveloped. Indeed, the South was administered as a separate province until 1946, and trade with the North was discouraged.
Momentum towards an independent Sudan began with the 1952 Egyptian Coup d’état, which led Egypt to renounce its claims over the territory the following year. While the British continued to rule Sudan for another three years, incompetent administrative policies and rising political unrest made their hold on Sudan increasingly tenuous. In 1953, the British allowed Sudan to hold a national referendum on independence. Following a majority vote for independence, Sudan held parliamentary elections and formally declared independence on 1 January 1956.
Re-emergence of Islamic Law
The legacy of British infrastructural policy, compounded on centuries of the North fighting against the marginalized South, planted seeds of division within the newly independent Sudan. Just six months prior to independence in August 1955, the first rumblings of conflict erupted in the Torit Mutiny. In Sudan’s southernmost province, Equatoria, local soldiers and police launched an uprising against northern administrators in the village of Torit. Civilians quickly joined in, and the uprising turned into wide-scale riots, ultimately killing 261 people. The ruling Northern government sent in troops to quell the Mutiny at the end of August, arresting many of the rioters and ultimately executing at least 121 of them. The Torit Mutiny marked the beginning of the First Sudanese Civil War, which lasted from 1955 until 1972 with the signing of the Addis Ababa Agreement. The Agreement created the Southern Sudan Autonomous Region, enabling Southern Sudan to run its own police, legislature, and executive body.
Sudan began shifting towards Islamic law in the 1970s, when President Jaafar Nimeiry first declared Sharia law throughout the country and terminated the SSAR. The move inflamed the predominantly Christian and animist South, leading to the formation of the Sudan People’s Liberation Army under career soldier Dr. John Garang de Mabior.
The Second Sudanese Civil War officially began on 16 May 1983, pitting the SPLA against the northern-dominated government forces. In the midst of what would become a 21-year civil war, the Revolutionary Command Council for National Salvation led yet another coup in June 1989.
While its highest-ranking members were all officers in the Sudanese military, the Council was also backed by the National Islamic Front, a political movement seeking to build an Islamic state. Under strongman President Omar Hassan al-Bashir, sharia law was implemented across the country. Alcohol was banned and apostasy became punishable by death. Additionally, Sudan implemented a traditional set of punishments under Islamic law called hudud. Hudud punishments include cutting off the hand for thievery andstoning to death for illicit sexual relations.
The conflict in Sudan was thrust into the international conscience in the early 2000s, following reports that Arab militias from the North were carrying out genocide against non-Arabs in the region of Darfur. Approximately 200,000 people were killed in the Darfur crisis, while two million more fled across the border to Chad.
The war raged on until the 2005 Comprehensive Peace Agreement between the Government of Sudan and the Southern Sudan-based Sudan People’s Liberation Movement. However, the Agreement failed to end the bloodshed, causing the UN Security Council to send in 26,000 peacekeepers in July 2007. In 2009, the International Criminal Court in The Hague issued an arrest warrant for President al-Bashir “on charges of war crimes and crimes against humanity in Darfur.”
The 2005 Agreement called for a referendum on Southern Sudan’s independence, which was finally held in January 2011. A staggering 99.57% of Southern Sudanese voted for independence, marking the end of “Africa’s longest-running civil war.”
2019 Coup and Transition to Secular Law
President al-Bashir maintained an iron grip on Sudan until 2019, despite facing multiple ICC arrest warrants and international sanctions. Despite years of bloody warfare, it was not guns, but bread, which finally ended al-Bashir’s thirty-year rule. In December 2018, the government announced that it was reducing subsidies for basic goods including fuel and bread, sparking nationwide protests. Following months of mass protests, the military removed al-Bashir from power on 11 April 2019. He was arrested and convicted of corruption in 2019. Al-Bashir is currently standing trial for his role in the 1989 coup, and faces the death penalty if convicted.
Sudan is now in the process of reorganizing its political and legal system after thirty years of dictatorship. In September 2019, Prime Minister Abdalla Hamdok took office under a power-sharing agreement between the military and protest leaders.
The Sudanese government has since begun a shift away from sharia law. In July 2020, Justice Minister Nasredeen Abdulbari announced that bans on alcohol and apostasy had been lifted. However, the move has highlighted a complex generational divide between the younger generation, which is “significantly more likely to favor a limited role for religion,” and the older generation, which supports the continued usage of sharia law.
Sudan has a population of approximately 45.5 million. Seventy percent of Sudanese identify as Arab, and Sunni Islam is the dominant religion. However, it should be noted that “the concept of ethnicity in Sudan is closely related to language and religion.” Arabic-speaking Muslims are likely to self-identify as Arab, although they are “ethnically mixed, and many of them are physically indistinguishable from those who do not consider themselves Arabs.” Arab Sudanese closely identify with their local tribe, which can be clustered in two major groupings: the Jalayin and the Juhaynah. The Jalayin have traditionally settled along the Nile as farmers. The Juhaynah were historically nomadic camel and cattle herders, although many have established permanent residences in recent times. Non-Arab, Muslim communities include the Nubians, who are clustered around the Nile in the northernmost part of Sudan, the nomadic Beja in the Red Sea Hills, and the Fur in the Marrah Mountains. Non-Muslim Sudanese predominantly live in the south or the centrally located capital, Khartoum. These groups include the Dinka and Nuba people. The official working languages of Sudan are Arabic and English. Arabic is most commonly spoken in daily life. Smaller ethnic groups speak a plethora of local languages, but “the vast majority of Sudanese have become multilingual,” learning Arabic as a lingua franca throughoutthe country. Sudan is a relatively rural country; only a third of its population reside in urban areas. An exceptionally young nation, over seventy percent of Sudanese were under thirty years old as of 2017.
South Sudan’s legal system is still in its nascent stages, and many of its current laws, such as the 2008 Code of Criminal Procedures Act (“CCPA”), date back prior to independence. It has a common law system in part derived from its British colonial past. The legal system comprises the constitution, national legislation, state legislation, and customary laws. In cases of conflict, national law supersedes state. The current Constitution (“Con.”) was written as a transitional document in 2011 and has not yet drafted a permanent one. The legal system suffers from a lack of resources and human capital, resulting in “a significant backlog of cases.” As of 2013, there were only 124 statutory judges in the entire country. Both the CCPA and the 2008 Judiciary Act (“Jud.”) outline the criminal court system. There are three tiers of county-level courts of first instance for civil and criminal matters, although “there is no internal appellate hierarchy among the lower courts.” Tiers are determined based on punitive capabilities, and all appeals are sent directly to the High Court. The lowest tier is the Third Class Payam Courts, which can hand out fines up to 300 SouthSudanese Pounds (“SSP”) and sentence convicted parties to up to a year in prison. While established by Section 15 of the CCPA, there are currently no functioning Payam Courts in thecountry. Second Class Magistrate Courts are authorized by Section 14 of the CCPA to pass prison sentences of up to three years and fines of up to 2500 SSP. First Class Magistrate Courts, created by Section 13 of the CCPA, can pass sentences of up to seven years and fines of up to 5000 SSP. Both First and Second Class Courts “are not fully in place, due in part to a lack of sufficient judges.” Decisions from each of these courts can be appealed to the state-level High Court. In addition tohearing appeals from the county-level courts, the 2007 Civil Procedure Act and CCPA provideHigh Courts with original jurisdiction over serious criminal and civil matters, including deathpenalty cases. From the High Court, cases can then be appealed to the Courts of Appeal. There are three Courts in South Sudan, divided into the Greater Equatoria region, the Greater Bahr al Ghazal region, and the Greater Upper Nile region. Each Court is required to three to four justices under Articles 12 and 13 of the Judiciary Act. The Supreme Court is the final court of adjudication in the country. While the Constitution calls for at least nine justices, only seven currently sit on the bench. 32 In addition to determining constitutional questions as a full body, the Court convenes in smaller three-person panels for civil and criminal matters. It is required to review all death sentences. The Court is headed by a President, currently Justice John Wol Makec. In addition to the statutory legal system, the 2009 Local Government Act (“LGA”) recognizes local customary law courts which can adjudicate civil cases based on “the customs, traditions, norms and ethics of the communities.” 34 Statutory courts may also refer criminal cases to customary courts. Given that statutory courts “are inaccessible for many people, because of their prohibitive cost, their unfamiliar procedures, and their use of languages that people do not know,” customary courts handle approximately 90% of disputes nationwide. As customary courts pass judgment based on local norms, procedure may vary greatly depending on location and tribal affiliation. Courts are often characterized by a greater degree of negotiation between parties than in European or American systems. Most decisions are announced verbally, and the lack of a binding written precedent enables customary court judges to pass sentences with little oversight or consistency. South Sudan also has an independent system of Police Courts to review civilian complaints against the police and criminal acts committed by the police “while discharging official duties.” Both the Second Sudanese Civil War and the more recent civil war within South Sudan have resulted in a massive number of human rights abuses, including extrajudicial killings, sexual violence, and torture. To address these atrocities, the 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan (“AGRC”) proposed the creation of the Hybrid Court for South Sudan (“HCSS”) to handle internationally recognized crimes (including genocide, war crimes, and crimes against humanity) committed from 15 December 2013 onwards. The HCSS would be jointly administered by the South Sudanese government and the African Union. The African Union Commission would be responsible for the “location, funding, infrastructure, enforcement and personnel” of the court, and submitted a draft statute to South Sudan in 2017. The majority of judges and all prosecutors and other staff would be from other African nations. However, South Sudan’s government has repeatedly delayed attempts to set up the HCSS. As of August 2020, the HCSS has yet to be established. Amnesty International notes that the South Sudanese legal system regularly faces interference from the executive branch. President Salva Kiir may reject military court decisions, “giving him veto powers over what is supposed to be an independent judicial process.” Moreover, Kiir has violated the Constitution’s separation of powers on at least two occasions by dismissing civilian judges. In 2015, he issued a blanket amnesty to armed forces involved in a December 2013 attack in Juba. In May 2017, all South Sudanese judges nationwide went on a five-month strike to protest poor working conditions and pay. In November 2017, Supreme Court judge Kukurlopita Marino Pitia resigned in protest at executive interference into the Court, stating that “the independence of the judiciary… has become a mockery.”