The Historic Struggle over the Judiciary
Reading this brought the past four decades cascading through my memory. Arriving in Kosti Boys School in 1966 my first introduction to my colleagues on the staff revealed that almost all wore Western dress and taught in English across virtually the whole of the curriculum. However two, known as “˜mullana‘, did not: they spoke no English; wore very formal “˜traditional’ dress; and taught Arabic and Islam. At one stage in the school year there was an open day featuring various school societies, and a very small and earnest group (one later to become governor of the Bank of Sudan under the NIF) set up a stall for the Muslim Brotherhood which attracted little attention.
How things were to change. Teaching in the University of Khartoum in the late 1960s I became aware of the struggles over the efforts to ban the Sudan Communist Party; while nearly 20 years later, from my base in Reading but still laced with regular visits to the University of Khartoum, I followed the execution of Mahmoud Mohamed Taha and the rise of the Muslim Brotherhood.
The outline of the political story of all this is well enough known, but the exploration here of the struggles over the judiciary has never been written up in this very personal and penetrating manner, and we are all indebted to Abdullahi for it. It is also very revealing of the significance of judicial affairs in Sudan.
There has been a tendency in debates about African politics to write off, if not to ignore, issues pertaining to the judiciary but this book reminds us of just how inappropriate that would be in Sudan’s case where the struggles have been so significant and so intense. The struggle of course is ongoing, and may prove the formal aspect of the division of the country, since the CAP is built around the south’s rejection of sharia law. But even before we get to the referendum in the south of 2011 which will decide the issue, there are more matters to be attended to such as the press laws and other liberties which will be central to the conduct of the elections now scheduled for 2010. And beyond that, for the one or two states, it will be necessary to look to the institutionalisation of a stable legal system or systems if struggles such as those depicted here are not to be a continuing feature.
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Abdullahi Ibrahim provides us with a version of the crisis in the Sudanese judiciary from an Islamist viewpoint, as though the answer to the crisis is to be located in the triumph of Islamic law and jurisprudence. Abdullahi and his fellow travelers in the NIF had their way when Gaafar Numeiri proclaimed Sharia law in September 1983 and six years later when Hasan al Turabi came to power. The result is a complete shambles in the judiciary which has lost the respect of the Sudanese people.
The Sudanese people despise and fear the judiciary. They despise it because the judges themselves have no respect for the law. They turn up late, unshaven and poorly dressed, pay no attention to proceedings and often don’t seem to know the law or care about it. Some judges have been trained by the University of Khartoum in the English law tradition and prefer to apply that. Some judges have been trained in Cairo and are at home in the continental civil law tradition so they apply that. But most of the competent judges were fired by the NIF in 1989 and instead the likelihood is that the judge presiding over the case will have been trained in Islamic law by one of the law faculties in the Sudanese universities where he will have learned his lecturers notes by rote and will use that and the Quran as his only references. It would be a miracle if any two judges asked to preside over the same case actually applied the law in the same way. They keep people hanging around without a proper schedule and no indication of when proceedings will start. Most of the time they are waiting for a bribe. Most of the poor people who are dragged before the courts have no idea about their rights under any legal system and all the judge does is take the police report whatever its flaws and convict the wretched defendant of whatever the police say even if the offence isn’t even there in the law. It is no wonder that most of people fear the courts and do everything they can to have their case settled before coming anywhere near a judge.
I would appreciate any thoughts on where this leaves the hybrid courts proposal of the AU and Arab League. I see that Sudan has rejected both but they are still favored proposals by the two organizations.