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Personal law in the Sudan—trends and developments
Published online by Cambridge University Press: 28 July 2009
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The Republic of the Sudan, born on January 1st, 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.
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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: 21 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 Diffèrentes. 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 50%.
4 Farran, C. D'Olivier: Matrimonial laws of the Sudan. Butterworths, London, 1963, p. viii.Google Scholar
page 151 note 1 See Michael E. Sabba v. Philip Phileppedes, H.C.-C.S.-228–1917, S.L.R. Vol. I, p. 73.
page 151 note 2 Article 5.
page 151 note 3 The sixth point in Kitchener's Directive to Governors and Assistants, reproduced in Duncan, J. S. R., The Sudan, pp. 85–86. William Blackwood & Sons Ltd., Edinburgh and London, 1952.Google Scholar
page 152 note 1 Ss. 33–39.
page 152 note 2 1967 Provisional Order No. 17, confirmed and became 1967 Act No. 39.
page 152 note 3 S. 6 (a) and (b) of the Sudan Mohammedan Law Courts Ordinance 1902; Samuel Mikhail v. George Mikhail, A.C.-A.P.P.-21–1919; Dalijee Ramjee v. Terbon Ramjee, A.C.-Rev- 18–1942; and Graziella Chrissafides v. George Chrissafides, H.C.-C.S.-86–1950.
page 152 note 4 S. 6 (a) and (b) of the Sudan Mohammedan Law Courts Ordinance, 1902; Farouza Gindi Habashi and Another v. Luga Habashi and Others, H.C.-C.S.-3–1949; Farida Fouad Nakhla v. Sameer Ameer (1957), S.L.J.R.21; and Nicolas Stephanou Stergiou v. Aristea Nicolas Stergiou (1963), S.L.J.R. 182.
page 152 note 5 S. 38 of the Civil Justice Ordinance, 1929; Heirs of Abdel Rahim Idris v. Fatma bint Abdel Rahim, A.C-Rev-39–1943; Raginalla Ahmed Fadlalla v. Abdel Gazim Hasan and Ragab Murgani (1959), S.L.J.R. 60, and Heirs of Tayeb El Melik v. Admadiya Zawya (1962), S.L.J.R. 135, 137–138.
page 152 note 6 S. 53 of the Sudan Mohammedan Law Courts Organisation and Procedure Regulations 1916.
page 152 note 7 See Mohammed Ahmed Abu Rannat: “The relationship between Islamic and customary law in the Sudan” [1960] J.A.L. 9, at p. 10.
page 153 note 1 Sayed Ameer Ali: Mohammedan law; Tagore Lectures, 1884, Vol. II, 22, 5th Edition, 1922. See abo Abraham v. Abraham (1863), 9 Moore's Indian Appeals 195 (p. 199, Indian reprint), and Narantakath v. Parakkal (1922), 45 Madras 986.
page 154 note 1 Fyzee, A.A.A.: Outline of Mohammedan law; p. 59, 3rd Edition, O.U.P.Google Scholar
page 154 note 2 (1963), S.L.J.R. 182, infra, cf. Skinner v. Orde (1871), 14 M.I.A. 309: an Indian case in which it was held that the child takes the religion of the father.
page 154 note 3 Article 93 of the Sudan Transitional Constitution, 1956, as amended in 1964.
page 155 note 1 The most recent circular was issued on 11.4.1970 and deals with wakfs or Islamic trusts. Some of the circulars have been repealed or incorporated in other subsequent circulars.
page 155 note 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” (1960), S.L.J.R. 292.
page 155 note 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.-5–1944 and Khtm-H.C.-C.S.-62–1950. 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 1900, this note was not retained under s. 5 of the Civil Justice Ordinance, 1929. For criticisms of Bamboulis v. Bamboulis, see Farran, Matrimonial laws of the Sudan, pp. 89–91; Kattan v. Kattan (1957), S.L.J.R. 53; Goldenburg v. Goldenburg (1960), S.L.J.R. 36; Nicolas Stephanou Stergiou v. Aristea Nicolas Stergiou (1963), S.L.J.R. 182, 183–184, and Amal Fakhri Saad v. Fayez Shukri Bishara (1968), S.L.J.R. 99.
page 156 note 1 Heirs of Mariam bint Boulos Saleeb v. Heirs of Boulos Saleeb, A.C.-Rev-17–1932, S.L.R. Vol. II, 4.
page 156 note 2 A.C.-APP-12–1934, S.L.R. Vol. II, 129.
page 157 note 1 A.C.-Rev-17–1932, S.L.R. Vol. II, 4.
page 157 note 2 A.C.-APP-5–1944.
page 158 note 1 A.C.-APP-13–1946.
page 159 note 1 See, e.g., Act for the Submission of the Clergy.
page 159 note 2 A.C.-APP-41–1955.
page 159 note 3 A.C.-APP-14–1947.
page 159 note 4 Cf. this decision with that of Yanni Krithari v. Mariam Bint Basta, infra.
page 159 note 5 A.C.-APP-16–1947.
page 161 note 1 A.C.-APP-26–1926, S.L.R. Vol. I, 297.
page 162 note 1 ibid., p. 299.
page 162 note 2 See Farran: op. cit., pp. 129–141.
page 163 note 1 See Antonious Saad v. Aziz Kfouri, A.C.-APP-50–1919, S.L.R. Vol. 1, pp. 118–119; Mansour El Shusehi and Others v. Abu Fatima Sharif, A.C.-A.P.P.-3–1920, S.L.R. Vol. 1, 147, 150–152; 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 Mustafa, Zaki, The common law in the Sudan, Oxford, Clarendon Press, 1971.Google Scholar
page 163 note 2 H.C.-APP-9–1918, S.L.R. Vol. 1, 91.
page 164 note 1 ibid., p. 93.
page 164 note 2 H.C.-C.S.-8–1949.
page 164 note 3 (1963), S.L.J.R. 182.
page 165 note 1 S. 7 (1) (a) of the Chiefs’ Courts Ordinance, 1931, and s. 9(1) (a) of the Native Courts 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 Ordinance regulates the administration of native law and custom in the rest of the country.
page 165 note 2 See Howell, P. P., Manual of Nuer Law, pp. 74et seq., O.U.P., 1954; and Farran: op. cit., pp. 77–81.Google Scholar
page 165 note 3 (1963), S.L.J.R. 54.
page 166 note 1 See J. Duncan M. Derrett, “Justice, Equity and Good Conscience”, pp. 114, 149, in J. N. D. Anderson's Changing Law in Developing Countries.
page 167 note 1 See P. S. Attiyah, “Some problems of family law in the Sudan Republic”, S.N. & R., Vol. 39, pp. 88–100.
page 167 note 2 See the Schedule to the Regulations in Laws of the Sudan, Vol. 10, 228.
page 167 note 3 S. 5(2) and the second Schedule to the Non-Mohammedan Marriage Ordinance, Parts 1 and 11, p. 227, Vol. 10, 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.
page 168 note 1 A.C.-APP-27–1926, S.L.R. Vol. 297.
page 168 note 2 A.C.-APP-13–1946. See also Josephine Iskander Mikhail v. Ayyad Diryas Ghali and Ganviave Diryas 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 Printing Press v. Kamil Mohamed Khalil (1959), S.L.J.R. 3, 4.
page 168 note 3 S. 12.
page 168 note 4 (1957), S.L.J.R. 21.
page 169 note 1 Cf. Attorney-General of Ceylon v. Allen Ellington Reid alias Ibrahim Reid, [1965] 2 W.L.R. 671, 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 notwithstanding 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.
page 169 note 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 Muslims and pagan tribesmen of the Sudan. If the pagans can transform their marriage into monogamous marriage, why not the Muslim couple? For his views, see Farran, op. cit. at pp. 52–61.
page 170 note 1 S. 6.
page 170 note 2 A.C.-APP-20–1931, S.L.R. Vol. I, 521.
page 170 note 3 (1957), S.L.J.R. 35.
page 170 note 4 S. 7, Eugenia Christokakos v. Executor of the Estate of Costi Voulgaris, A.C.-Rev-18–1938, S.L.R. Vol. 11, 302, and Mirhan Bidjikian and Others v. Estate of Hagob Stephanian (1967), S.L.J.R. 70.
page 170 note 5 s.4.
page 170 note 6 S. 6 (1) (c).
page 170 note 7 S. 6 (1) (a), Kattan v. Kattan (1957), S.L.J.R. 35, and Mirhan Bidjikian and Others v. Estate of Hagob Stephanian (1967), S.L.J.R. 70.
page 171 note 1 S. 5.
page 171 note 2 Ss. 13–38.
page 171 note 3 S. 3.
page 171 note 4 S. 2. See also Estate of Victor Ezra Ades, H.C.-Est-26–1934, S.L.R. Vol. 11, 72.
page 171 note 5 S. 3(2).
page 171 note 6 S. 8.
page 172 note 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 Ohrwalder (14th Edition, p. 70), Samson Low, Marston & Co., London, 1893.
page 172 note 2 “ Subject to the provision of this Constitution, all the laws in force in the Sudan immediately before the commencement of this Constitution shall continue in force until altered, replaced or amended by Parliament or other competent authority.”
page 172 note 3 “ All laws in force before suspension of the Sudan Transitional Constitution shall continue in force until repealed or amended by any appropriate authority.”
page 173 note 1 For further information on these groups, see (1) Egon Guttman: “The Reception of the Common Law in the Sudan” (1957), I.C.L.Q. Vol. 6, pp. 415–416; (2) Cliff F. Thompson: (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 1146, pp. 1178–1184. 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.
page 173 note 2 Government Printing Press, Khartoum, 1956.
page 173 note 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. 1.
page 173 note 4 See, however, (i) Mohammed Ahmed Abu Rannat: “The relationship between Islamic and Customary law in the Sudan” [1960] J.A.L. 9, p. 10, and (ii) J. N. D. Anderson: “Modernisation of Islamic law in the Sudan” (1960), S.L.J.R. 292.
page 174 note 1 M.J./Legis/28–1, dated April 17th, 1957.
page 174 note 2 Article 5.
page 175 note 1 See (i) Beshir, Mohamed Omer: Southern Sudan, Background to the Conflict, Chapter 9, pp. 80–87, C. Hurst & Co. Ltd., London, 1968Google Scholar; (ii) , Toynbee, Between the Niger and the Nile, pp. 5–6, O.U.P., London, 1968; and (iii) S.G. v. Father Silvanus Gottardi, P.C.-S.N.C. C.R.-APP-17–1960 (1960), S.L.J.R. 245.Google Scholar
page 175 note 2 See Article 109 of the Sudan Transitional Constitution as amended in 1964, which is identical with Article 113 of 1956 Constitution.
page 175 note 3 Article 9 of the National Charter which was published together with the Sudan Transitional Constitution as amended in 1964.
page 176 note 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 Others v. The Supreme Commission and Others (1968), S.L.J.R. 1.
page 176 note 2 See the Law Commissions Provisional Order, 1968, and the Law Commissions Provisional Order (Repeal) Act, 1969.
page 176 note 3 Amendment No. 4 of 1966.
page 177 note 1 1967 P.O. No. 17, confirmed and became 1967 Act No. 39.
page 178 note 1 See Mariam Abdulla Yousif Abagi v. Administrator of the Estate of Abdulla Yousif Abagi, A.C.-APP-26–1926, S.L.R. Vol. 1, 27, and Habashi Rizgalla Habashi v. Administrator of the Estate of Rufail Habashi, A.C.-APP-16–1947, Supra.
page 179 note 1 Act No. 17 of 1968.
page 179 note 2 No. 15 of 1971.
page 179 note 3 Articles 1 and 3.
page 180 note 1 Articles 113, 114, 115 and 142.
page 180 note 2 Articles 18 and 19.
page 180 note 3 Articles 28 and 32.
page 180 note 4 Explanatory Note to the Bill.
page 181 note 1 No. MW/1/A/5/4/587.
page 181 note 2 1970 Act No. 45.
page 183 note l S. 3.
page 183 note 2 Ss. 13–36.
page 184 note 1 My own translation, from the original [in Arabic].
page 184 note 2 Heirs of Abdel Rahim Idris v. Fatma bint Abdel Rahim, and Raginalla Ahmed Fadlalla v. Abdel Gazim and Ragab Murgani, Supra.
page 184 note 3 See Maria Constantine Gambouris v. Constantine Procos, and Moneib Constantine v. Zakia Eliza Tifaya, Supra.
page 184 note 4 See Yanni Krithari v. Mariam bint Basta, Farouza Gindi Habashi v. Luga Habashi and Others, and Stergiou v. Stergiou, Supra.
page 184 note 5 Act No. 32 of 1972.
page 185 note 1 Legislative Order No. 19 of 1972.
page 185 note 2 Chapter 3, ss. 10 (a) and (b) and 11–26 of the Civil Justice Ordinance 1929, and ss. 7, 8 (a), (c) and (d), 9 and 261 of the Code of Criminal Procedure 1925.
page 185 note 3 S. 2.
page 185 note 4 S. 3 (1).
page 185 note 5 S. 6.
page 185 note 6 S. 7.
page 185 note 7 S. 8.
page 185 note 8 See ss. 10(c), 15 (b), 18 (b) and (d) and 21 (b).
page 185 note 9 S. 5.
page 186 note 1 See Farouza Gindi Habshi and Another v. Luga Habshi and Others, H.C.-C.S.-8–1949, and Stergiou v. Stergiou (1963), S.L.J.R. 182, Supra.
page 187 note 1 See (1) Report of the Kenya Commission on the Law of Succession. Nairobi: Government 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, 2001–45, 2078–98, November 17th–19th, 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.
page 188 note 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 16th Conference of the Philosophical Society of the Sudan, Vol. 1, pp. 1–26.
page 188 note 2 All Roman Catholic and Dinka Rek of Tonj.
page 188 note 3 Protestant and Dinka Agar of Rumbek.
page 188 note 4 Kmc./H.C./Gen./6–9 (1), X.R./Gen./6–9 (4), 1965.
page 190 note 1 Act No. 43 of 1954.
page 191 note 1 A.C.-APP-13–1946.
page 191 note 2 H.C.-C.S.-182–1969.
page 192 note 1 H.C.-C.S.-8–1949.
page 194 note 1 (1) The Civil Justice Ordinance, 1929, except the following: (a) s. 9, (b) chapters 3 and 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 Prescription 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. 51), ss. 179–207, provided that these Regulations shall apply in the settlements of personal matters of the Muslims.