Rectifying the Neglect of Sudan’s Judiciary
Few have written in detail about the key institution of the Sudan Judiciary, its corps of professional judges, its management of the courts whose role has been the implementation of the laws of Sudan, whether colonial, post-independence, or Islamist.
The most critical works, appropriately in my view, have been written by Sudanese, for example, Abdullahi al-Na`im, Francis Deng– both trained in the law who have added human rights and diplomacy to their legal writings– Mohamed Mahmoud, Mahgoub al-Tigani, and Abdullahi Gallab, each of whom who lived through the tumultuous years of legal change and have, as scholars in the Diaspora, reflected and commented upon the political and social transformation that has occurred in and around the legal institutional change. And now comes to this distinguished group Abdullahi Ibrahim whose Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898-1985 offers details of the inner workings of the Judiciary and a unique critical perspective on the years of post-independence Sudan and its march toward Islamization under Nimerie and state Islamism under Turabi-al-Bashir. Works by various non-Sudanese have sought to create objective historical chronicles of the law, such as Layish and Warburg’s work The Reinstatement of Islamic Law in Sudan under Numeiri (2002) that refers to the Islamist legal project– from 1983 through the al-Bashir-Turabi “Salvation” regime– as a “legal experiment.” My early work, Islamic Law and Society in the Sudan (1987; Arabic edition 2004) combined the study of Shari`a as it was on the eve of the September laws, with an ethnographic account of the law in practice. Soon to come is the result of my recent research on Shari`a after the CPA, Shari`a and Islamism in Sudan: War, Peace and Social Transformation. These all have their place, but Abdullahi’s book is something new, an engaged work on a seemingly dull subject, full of passion, respect, and fresh perspectives.
Manichaean Delirium is a unique blend of history and political commentary centered upon the neglected study of the Sudan Judiciary. Often the judges themselves are overlooked as a subject of study, and they are, indeed, a variegated professional group as the book demonstrates. Past presentations by Abdullahi at our Sudan Studies Association conferences presaged the complex view of this professional class he presents, combining a respect for their struggles with the dilemmas he so aptly identifies as “Manichaean. In these papers Abdullahi and in this book, he combines dramatic and artistic metaphors with his analysis of qadis (working in Shari`a courts) and judges (in Civil courts). Their dichotomous opposition and ranking is rooted in the colonial experience that sought to undermine Islamic institutions, but was fearful of eradicating them with the experience of Mahdism fresh in their minds. The earlier papers, with titles such as “Colonialism as Exorcism: A Tale of Two Courts”; “Sudan Shari`a Judges: the Pride of Turbans” and “Popular Islam: the Religion of the Barbarous Throng” are reworked into equally provocative book chapters: “Nimerie’s Instant Justice: Tongue of God and the Rogue” and “The Qadis and Mahmoud M. Taha: Toward an economy of Vendetta and Martyrdom” are just two examples.
Abdullahi offers a new theory for Nimerie’s September laws and courts of “˜prompt justice.’ He argues that Nimerie had run out of ideologies and, thus, jumped on the bandwagon of populist demands for justice. I would differ with his interpretation that the Shari`a was accepted as a better, cheaper deliverer of justice to the masses, comparable to the popularity of the Islamic Courts movement in recent years in Somalia. Sudan’s fundamental crisis in 1983 was the resumption of war in the South, months before the September laws were announced. The target was more likely the rebellious Southerners and their potential Northern allies. Making Shari`a law effectively state law flushed them out, sent the message of the pre-eminence of the Islamic state, and restarted the civil war which the generals still believed was militarily winnable. The author supports this view later in his work when he acknowledges that Nimieri’s Islamizing the state was an instrument to terrorize the population into political submission. Personally having conducted research in the Khartoum courts in the years prior to the 1983 laws, I detected neither mass sentiment for or against the moves to Islamize the law. The first moves toward Islamizing the law, with initiatives regarding mandatory zakat and prohibitions on alcohol, took place from 1977 and were mostly unopposed. However, the qadis in the Judiciary were very pleased, and viewed the trend toward Islamization as a major opportunity (“forsa kabeera“ I heard time and again).
Thus, this work on Sudan’s law and its legal professionals is respectful, yet also critical of the Islamist project that has done so much harm to the independence of the Sudan Judiciary. Generally by separating the political from the professional, he affords the judges their due respect for having survived political events while trying to retain standards of impartiality despite intense pressure from above. Neglected in this respect is sufficient mention of the judges who were perceived as somehow disloyal or disrespectful of the Islamist project and were dismissed in their droves particularly in the early years of the al-Bashir “Inqaz” government. Notably, in this respect Abdullah (a vocal supporter of the women judges who have been appointed over the years) missed an opportunity to set the record straight that these female judges retained their positions in the Judiciary despite international human rights reports to the contrary.
The chapter on the trials of Mahmoud Taha (1967 and 1985) will likely be the most controversial, especially to his followers in the Republican movement. The question “Who killed Taha?” opens this chapter and the answer is a negative response to the usual answer, that it was the Muslim Brotherhood and Hasan Turabi. Abdullahi argues that the qadis of the Judiciary had a better motive. Taha, who was condemned as an apostate in 1967, was actually the victim of a political vendetta from the longstanding conflict between him and the qadis. He mocked their authority and accused them of false interpretations of Shari`a in their September laws of 1983, and by 1985, the second apostasy trial, he mocked them again for failing to execute their own decision of 1967 and for building a Shari`a based upon their “false 1983 laws.” “Boycotting Shari`a courts did not endear Taha to his adversaries,” Abdullahi opines (p. 310). The Appellate judge in the 1985 trial (later the engineer of al-Bashir’s state Islamism) was al-Makashif Ta’a al-Kabbashi, who did not give the final chance for Taha to recant his heretical views, Abdullahi argues, because of his habitual disrespect for the courts. So, in the end, it was vindictiveness of the qadis that pushed for Taha’s execution and marked the turning point that ended the view of Sudanese Islam and its institutions as tolerant. This traditional view of a tolerant Islam, the author argues, is indicative of the overlooked and understudied aspect of power and orthodoxy when analyzed through the lens of the law and its implementers.
In this work, there are many advances in our understanding of the Sudan Judiciary, not the least of which is his detailing the “birth” of a unified Judiciary, completed in 1985. The reluctance of both qadis and judges to the merger reveals the “˜Manichaean delirium’ stalking the post-colonial state and stalling the process of decolonization. Merger was inevitable after independence but it took decades to accomplish due to the legacies of colonialism. The new Islamic alliance (Turabi, al-Mahdi, Nimerie and al-Bashir) found that by decolonizing the law and Islamizing the state, they had discovered a new source of political legitimacy. It was with the Committee on Revision of Laws to Conform to Sharia, headed by Hasan al-Turabi in 1979, when the first steps were taken to prepare for the merger. Having decolonized Shari`a, it is virtually impossible that it will be withdrawn, short of another imperial venture by the West. This helps to explain why anti-imperialist rhetoric by Islamist politicians remains so vehement and effective.
Manichaean Delirium is a provocative work, al the more welcome for the years it was in the making. Added to the above commentary, the book also serves to decolonize scholarship on the subject, some of which has relied almost exclusively on the colonial archives in England and Sudan. M.W. Daly’s historical tomes are a case in point. Abdullahi tells us as much that his book is about postcolonial theory, “something the first world thinks does not happen much in the third world” (p. 393). These are the words of a decolonized, or decolonizing, mind.
Beyond his meticulous research, Abdullahi offers us a postmodern drama set in the Judiciary, full of conflict, intrigue, and politics along Sudan’s inevitable journey out of colonial paradigms and mindsets. This makes the work rich in both its description and analysis, and one that I hope will be discussed and debated, in English and eventually in Arabic (insha Allah).
Carolyn Fluehr-Lobban is Professor of Anthropology at Rhode Island College