North Africa, West Asia

Amendments to Sudanese criminal law

Walaa Salah

Amendments don't mean change. It’s high time for a comprehensive campaign against the entire legal system, calling for dignity and equality for all.

Walaa Salah
30 April 2015

In March and April 1985, the people of Sudan took to the streets revolting against Nimeiry’s regime. One of the main demands of the intifada was the abolishment of what became known as the "September 1983 laws", a criminal system based on Sharia.

Hundreds had been arbitrary killed, tortured and jailed as a result of these laws. However, for the four-year “democratic period” that followed the intifada, the government failed to meet the demands of the masses and the "September laws" remained untouched.

The 1989 military coup led by Omar Al Bashir and engineered by the National Islamic Front, set a precedent for further setbacks to the country’s legal foundations. In 1991, new criminal procedural laws were introduced and approved in the years to follow. They are all based on a fundamental interpretation of the Sharia.

The resistance never stopped. Campaigns were launched, and Sudanese and international activists worked tirelessly to reveal the brutality of the criminal and security systems in the country. Legal reform has always been one of the main demands of opposition groups. But most of these campaigns only focused on one law or one article.

On 22 February 2015, two months before a controversial election took place, Al Bashir approved new amendments to the country’s 1991 criminal laws, tackling three major areas: bribery and counterfeit money, apostasy and insulting religions, sexual harassment and rape.

These amendments have not been published/printed in full yet, and activists and lawyers have struggled to obtain copies. However, as with other state documents, they were leaked to international actors before the Sudanese people.

These are initial readings of some of the amendments. The articles were obtained and translated into English by a Sudanese civil society organization, who remain anonymous for their own safety.

On apostasy and insulting religion: a leap towards Wahhabism

Last year the case of Mariam Yahia, a Sudanese woman who was sentenced to death for committing apostasy, shook the entire world. Campaigns were launched in Sudan and abroad calling for legal reform, specifically the abolishment of Article 126 of the criminal code.

However, since the Sudanese government is determined to keep the masses living in fear, they amended both Article 126 (apostasy) and Article 125 (insulting religions) to be even more brutal.

The new law not only continues to criminalise apostasy, but also redefines it to include anyone who questions the credibility of the Quran, the Sahaba, or the wives of the Prophet. Moreover, even apostates who 'repent' can face up to five years imprisonment.

Two new sections were added to the article on insulting religions. Now, any non-Muslim who curses or “offends” Islam or the Prophet or the Sahaba, especially the four Caliphs, can be charged. The punishment for insulting religions has increased from six months to five years imprisonment.

This new amendment not only targets the rights of non-Muslims and renouncers, but also encompasses Muslims with different ideological backgrounds that contradict the government’s interpretation of Islam. Sufi Muslims, Shi’a, Islamic reformists, activists who challenge political Islam and many other groups could be at risk of prosecution. People’s basic right of freedom of expression and thought is under threat.                             

Rape and sexual harassment: no victory after all

Finally, the problematic Article 149 has been amended. The original 1991 law confused rape and adultery, which meant that if a rape victim failed to prove her case she could be punished for committing adultery (zina). The punishment was 100 lashes if she was unmarried and death by stoning if she was. The new amendment expands the definition of rape and separates it from zina.

Human rights organizations have fought hard and long for this victory. However, the new amendments raise doubts with regards to achieving justice for survivors of rape. In an interview, Hikma Yagoub, a human rights lawyer who runs a legal aid organization in Khartoum, said:

“The new definition will give victims and their lawyers the opportunity to achieve justice. However, it’s rather meaningless without amending the evidence law of 1994, which is still in line with the old definition of rape.

Despite campaigns against stoning, the article on zina and adultery is still in place. Women and men are still at risk of flogging and death by stoning for having consensual sexual relationships, while punishment for rape is no more than ten years.

Most importantly, this amended article is accompanied by a new one on sexual harassment, which, according to the civil society organisation's translation, states:

“A person who commits sexual harassment is anyone who carries out an act, a speech or behavior that is a temptation or an invitation for someone else to practice illegitimate sex, or conducts horrendous or inappropriate behavior of sexual nature that harms a person, psychologically, or makes them feel unsafe. This person will be sentenced to a period of no more than three years and lashing.”

This article couldn’t be more vague. This is common in most of the legal provisions of Sharia law, as is the obsession with controlling sexuality and restricting women’s presence in public space. Words like “temptation” or “inappropriate acts” are often associated with women’s presence in public space.

In an interview, Yosra Akasha, a human rights activist, said:  

The article is not even clear on who the criminal is, whether it is the harasser or the harassed. Quite often male harassers will defend their actions by claiming that they were tempted by the victims’ presence, clothing, or even way of speaking. The law has simply legalised these misogynists’ arguments.” 

It seems that the legislators are sending a message to women to avoid seducing men, by obscuring themselves from public spaces. This is the price being paid for not being punished, as a survivor of rape: the probability of being accused of tempting predators still stands.

It’s safe to conclude that these amendments are not a response to human rights campaigns or for the benefit of the Sudanese people, but rather to satisfy future investors and financial backers, such as the Kingdom of Saudi Arabia and the Gulf monarchies.

The Sudanese government was one of Iran’s main Sunni alliances in the region, and has also been accused of trafficking weapons to Hamas in Palestine on behalf of Iran. The country has been facing critical financial crises after the secession of South Sudan in 2011 and the government has been working tirelessly to relieve itself from the US embargo. The main obstacle in Sudan restoring its diplomatic relations was for it to detach itself from Iran, which seems to be the course of action being implemented now.

Last year, Iranian cultural centres started to be shut down and Iranian diplomats were expelled. One month after the new amendment, the Sudanese president flew to Saudi Arabia to take part in Operation Decisive Storm, targeting the Houthis in Yemen. Furthermore, this new amendment fits perfectly with this current shift in relations, as it sends a clear message that Sudan is more Wahhabi than Mohamed ibn Abd al-Wahhab himself.

These recent amendments provide even more reason for rejection and concern. It’s high time for human rights activists to launch more comprehensive campaigns against the entire legal system, calling for dignity and equality for Sudanese men and women, rather than focusing on a single article or law. We need new strategies, and more importantly, we need to stop cheering on the amendments just because change has taken place.

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