The Death Sentence for Mahmoud Muhammad Taha:
Misuse of the Sudanese Legal System and Islamic Shari’a law?

OPPOSITION TO PRESIDENT JA’FAR MOHAMMED AL-NIMEIRI AND THE ARRESTS

Taha and his followers were opposed to the drive by President Ja’far Mohammed al-Nimeiri to introduce immediately the traditional Shari’a. The Republicans emphasised the need for an essential revision of certain parts of the law and the re-education of Muslims with the new approach towards Islamic moral values and ethics. They argued that this was needed before any introduction of Shari’a.[xx] Although he was a devout Muslim, it seemed a strange option for Taha and the Republicans’ desire for establishing a socialist democratic state, which would uphold complete equality between both men and women together with Muslims and non-Muslims. However, it is not so strange in realising that Taha only supported socialist economic development, as he was firmly anti-Marxist. ‘He objected to Marxism’s atheism, and accused it of failing to achieve socialism.’[xxi]

The Republicans’ opposition to Nimeiri’s immediate introduction of only Shari’a law to be used in the Sudan led to severe hostility and often violent confrontation with the Ikhwan, or ‘Muslim Brothers’ and other hard-boiled ‘Islamic fundamentalist’ groups.[xxii] The major issue of concern involving the Republicans started in May 1983, once they had issued a pamphlet that criticised the chief of state security, who also happened to hold the position of First Vice-President of the republic. The pamphlet stated that he had failed to condemn and/or control the growing amount of incitements to racial hatred and the virtual encouragement of sectarian violence that was undertaken in various mosques and through the state-controlled media. In reply to the pamphlet, the chief of state security/First Vice-President arrested Mahmoud Taha, together with approximately 50 members of the Republican Party, and they were held in detention without any charges or any trial for 18 months.[xxiii]

As An-Na’im explains:

Five Republicans, including four women, were released after nine months. A group of Republican students were also arrested and released after six months of detention. Detention orders were issued and periodically renewed under Section 22 of the State Security Act 1973 (as amended in 1975). Section 22 authorised detention without trial only for one who ‘is about to commit or is likely to commit any of the offences under this (State Security) Act,’ i.e. specified offences against the state. The Republicans were neither ‘about to commit’ nor ‘likely to commit’ such offences as they were actively supporting the Regime at the time. In the pamphlet which constituted the immediate cause of their detention, the Republican’s declared their support for the Regime and argued that their criticism of the First Vice-President’s failure to curb fundamentalism and religious fanaticism was intended to prevent a take-over of power by those forces. The Republicans were denied access to the courts to pursue their complaints of illegal arrest by being physically prevented from appearing before the court as required by the Sudanese Code of Criminal Procedure, Section 156.[xxiv]

The detention of the Republican leaders started in May-June 1983 and they remained detained until 19 December 1984. During this period, Nimeiri introduced what he perceived to be the Shari’a laws and which An-Na’im refers to as the ‘Islamic Laws of 1983–4.’ Remarkably enough, the Republicans’ campaign against this introduction of the Shari’a laws was operated by the leaders in March 1984, while they were still under political detention, but issuing pamphlets and a booklet. The information in the pamphlets and the booklet were an indictment of how the laws were blatantly violating the Sudanese constitution by distorting basic Islamic principles, while they simultaneously contravened the basis of Shari’a itself, which they were supposed to represent.[xxv] It is interesting to note that there was no Sudanese law in effect in 1985 establishing that apostasy from Islam constituted a crime. Even though a number of rules designed to revive the more archaic features of shari’a criminal law such as the shari’a crucifixion penalty were enacted into law in 1983 and even though the government did not hesitate to impose shari’a penalties like amputations of limbs, the shari’a death penalty for apostasy from Islam had not been restored. One presumes that the failure to reinstate that rule at a time when so many other rules of shari’a law were being revived was a result of the kind of ambivalence about this issue that was illustrated by Iran’s unwillingness to admit publicly that it executed Baha’is as apostates from Islam.[xxvi]

The Republicans also raised three constitutional lawsuits in the Supreme Court stating that the Shari’a laws discriminated against both women and non-Muslims and violated the established provisions of the Sudan constitution. However, the Supreme Court, having been reconstituted under the same set of rules being questioned, rejected the lawsuits on the fact that the Republicans were not in a position to raise them, as they were not personally aggrieved by the specific laws stated. As Donna E. Arzt suggests, Taha called his approach the ‘Second Message of Islam’, as it distinguished between the Qur’anic passages revealed in Medina, which he argued dealt only with circumstances in Arabia at that time, and the Qur’anic passages revealed in Mecca, which contained an eternal message. This allowed him to justify discarding Shari’a rules which violated modern human rights norms. Spurning violence, Taha and the Republicans used litigation, unsuccessfully, to try to invalidate Nimeiri’s Islamization campaign on constitutional grounds.[xxvii]

Further to this, on 25 December 1984, in the first week of release from detention for Taha and his fellow leaders, they released another pamphlet campaigning for the repeal of what they referred to as the ‘September 1983 Laws’. The pamphlet entitled hadha…aw al-tufan [Either This or the Flood][xxviii] also promoted a peaceful settlement for the civil conflict in the Southern Sudan and it also sought to encourage public access to gain the necessary knowledge and understanding, through public debates, which would aim towards a correct Islamic revival.[xxix]

Several days following their release in December 1984, some members of the Republicans were arrested again and charged with the minor crime of stimulating public disturbance due to their activities. However, the Minister for Criminal Affairs Muhammad Adam ‘Isa interfered in the legal process and changed the charges to the stronger offences, in a call for capital punishment, for the crimes of undermining the constitution, waging a war against the state, together with two other offences against the state. Mahmoud Taha was also arrested on 5 January 1985 and taken to trial with four of his followers, who were arrested on 7 January 1985.[xxx] All five people were convicted and given the death penalty one day later on 8 January, following a court hearing that involved two sessions, each under one hour long. Following this trial, the special criminal court of appeal, which also had been constituted under the ‘September 1983 Laws’, assessed the cases and upheld the convictions and the five death penalty sentences. On 17 January, Nimeiri presented his final approval for the immediate execution of Mahmoud Muhammad Taha, while granting the other four a stay of execution for three days, within which time they should repent (istitabah) and recant, or otherwise choose death. The four recanted, and were saved from the sentence.[xxxi]

Taha, and the four Republicans accused with him, Khalid Babikr Hamza, Muhammad Salim Ba’shar, ‘Abd al-Latif ‘Umar and Taj al-Din ‘Abd al-Raziq, boycotted the court hearing, as they argued that the court was constituted under laws that violated both Islam and Shari’a – and that the laws had been set up to terrorise and humiliate the entire population.[xxxii] Each of the accused made a statement explaining their reasons for refusing to engage in the court hearing with such a legal process, and they all then remained silent during the trial. They refused to ‘cooperate’ by answering any of the questions asked, or present any legal defence for their case.[xxxiii] An-Na’im expands on the position the Republicans held:

They also challenged the technical competence and moral integrity of the judges enforcing those laws because they allowed themselves to be manipulated by the executive branch of government in humiliating and oppressing its political opponents. The five accused considered the trial to be nothing but a political ploy and treated it as such.[xxxiv]

Taha’s statement concerning the reasons he had boycotted the hearing explained the reasons why the proceedings were not valid, or undertaken within any aspect of Islam. He clarified these views, by announcing:

I have repeatedly declared my view that the September 1983 so-called Islamic laws violate Islamic Shari’a and Islam itself. Moreover, these laws have distorted Islamic Shari’a law and made them repugnant. Furthermore, these laws were enacted and utilized to terrorize the people and humiliate them into submission. These laws also jeopardize the national unity of the country. These are [my] objections from the theoretical point of view.

At the practical level, the judges enforcing these laws lack the necessary technical qualifications,. They have also morally failed to resist, placing themselves under the control of the executive authorities which exploited them in violating the rights of the citizens, humiliating the people, distorting Islam, insulting intellect and intellectuals, and humiliating political opponents.

For all these reasons, I am not prepared to co-operate with any court that has betrayed the independence of the judiciary and allowed itself to be a tool for humiliating the people, insulting free thought, and persecuting political opponents.[xxxv]