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Religion (1986) 16, 197-224

THE ISLAMIC LAW OF APOSTASY


AND ITS MODERN APPLICABILITY
A CASE FROM TSE SUDAN

Abdullahi Ahmed An-Na'im

On 18 January, 1985, the Sudanese Muslim reformer, Ustadh (revered teacher)


Mahmoud Muhammad Taha, was executed in Khartoum, Sudan . Specified
at the criminal trial were charges of offenses against the state under the Sudan
Penal Code, 1983, and the State Security Act, 1973 . In separate actions, The
Special Court of Appeal and former President Nimeiri confirmed conviction
and sentence, however, not only for the secular charges specified at the
criminal trial but also for the Shari'a religious offense of apostasy-the
renunciation of Islam by a person known to have been a Muslim .
The entire episode brought to the surface questions about President Nimeiri's
attempts to govern the Sudan by imposing traditional Shari'a religious law . In
the case of the execution of Ustadh Mahmoud, this involved silencing an
outspoken critic . But Nimeiri's introduction of the Shari'a into civil contexts
seemed also generally aimed at other segments of the political opposition .
Questions of the bizarre legal and judicial proceedings attending this complex
episode also arise, and will be discussed in due course .
However legal chicanery and political motivation may have figured in
Ustadh Mahmoud's execution, even larger issues are at stake . Ustadh Mah-
moud's case has implications for universal human rights and civil liberties .
The real importance of Ustadh Mahmoud's trial and execution is in the
questions it raises about the place of the Shari'a in the modern world .
Especially important is the relation between sincere Muslim belief and
compliance with laws purporting to be derived from that belief . In the Shari'a
principle of apostasy, the tension between faith and legalism is most obvious .
The candid admission of this element of religious intolerance in Shari'a is an
essential prerequisite for the success of any attempt to secure complete respect
for freedom of religion . The author hopes to undertake the major task of
contributing to the building of the theological, philosophical and legal case for
religious freedom in Islam at a later stage . Meanwhile, this preliminary
treatment of the issues may be useful as an early caution to those contemplating

0048-721 X/86/030197 + 27$02 .00/0 ©1986 Academic Press Inc . (London) Ltd .
198 A . A . An-Na'im

the enforcement of the totality of Shari'a law . They seem to have chosen this
course of action out of religious conviction or political expediency without
being aware of the full implications of such policy .
To understand the case of Ustadh Mahmoud, however, it is necessary to give
a brief account of the legal and constitutional background and the process of
Islamization undertaken by former President Nimeiri in 1983 . The basic
features of Sudan's constitutional and legal system prior to Nimeiri's Islam-
ization was not unlike that of many other Muslim countries where similar
Islamization is likely to take place . Current constitutional and legal safeguards
in force in their own countries should not lead Muslims to believe that they are
immune from facing the consequences of the Shari'a law of apostasy and other
related concepts . What happened in the Sudan can happen in any other
Muslim country today .

LEGAL AND CONSTITUTIONAL BACKGROUND


The Sudan was ruled by a Turco-Egyptian administration throughout most of
the 19th century until it was liberated by the indigenous religio-nationalist
movement of Muhammad Ahmad al-Madhi in 1884 . Britain joined Egypt in
the successful campaign to recover possession of the Sudan in 1898 . As the
dominant power, Britain was by far the stronger partner, and managed to rule
the Sudan with very little Egyptian participation until the Sudanese took over
after Independence in 1956 .
During the Anglo-Egyptian Condominium, as the colonial partnership was
called ; and throughout the national rule since Independence, the Sudan has
been administered under three concurrent systems of law, namely, the overall
official system, herein termed the general territorial law, the customary laws of
the various tribal groups, and Islamic Shari'a Law .'
Although the general territorial law has so far been more dominant, local
customs, or what may be called customary laws, are the oldest and most
widely practised of the three legal systems . The indigenous Sudanese tribes
and peoples have been settling their disputes in accordance with their local
customs for centuries before the advent of Islam and the rise of modern
colonialism that brought the British to Egypt and the Sudan . Moreover, the
manner in which Islam came into the country, with Muslim migrant tribes
and Sufi (Muslim mystic) religious leaders, meant that the Sudanese knew
and practised what may be described as popular Islam long before any official
legal administration was attempted by the Turco-Egyptian administration
during the 19th century .' Some principles of Islamic law itself were no doubt
adapted and incorporated into the native customary law . 3
The Anglo-Egyptian administration began to regulate the administration of
customary law, in accordance with the colonial policy of decentralization, in
The Islamic Law of Apostasy 1 99

the early 1920s . A number of Ordinances, culminating in the Chief's Courts


Ordinance and the Native Courts Ordinance of 1931 and 1932, respectively,
attempted to regulate the jurisdiction, personnel and basic procedure of the
customary law courts . These Ordinances were subsequently revised and
consolidated into a single enactment : The People's Local Courts Act, 1977 .
The general territorial law consists of a large body of legislation enacted by
the various types of legislatures the country had over the past 80 years . The
reception of principles of English common law began with the enactment of the
Penal Code, the Code of Criminal Procedure and the Civil Justice Ordinance
around the turn of the century . All three basic Codes, and subsequent
enactments regulating the various spheres of Sudanese civil and commercial
life, were based on English law as applied in other parts of the British Empire .
Active adaptation and reception continued throughout the codominium
through the judicial work of English lawyers appointed as judges and judicial
officers .' When systematic legal training for Sudanese was undertaken on a
regular basis in 1936, it was done by English lawyers using English textbooks
and material.
Thus, when independence was achieved in 1956, the Sudan judiciary was
firmly established in the techniques and traditions of English common law .
Although an increasingly poor replica, 5 the Sudanese legal profession continued
its nominal adherence to the common law tradition up to 1983 . This general
territorial law, based on principles of English common law as adapted and
sudanized through generations of revisions and re-enactments, 6 governed civil
and criminal matters in the towns and more accessible countryside of northern
and central Sudan . Over the rest of the country customary law prevailed .
Islamic Shari'a law, on the other hand, has been confined to the area of
family law and inheritance for Muslims since the beginning of the Anglo-
Egyptian administration . Marriage, divorce, child custody and succession for
Muslims remain under the jurisdiction of Shari'a courts .' Although the
Judiciary was supposed to have been unified under the provisions of the 1973
Constitution and the Judiciary Acts since 1973, 9 the Civil and Shari'a Divisions of
the judiciary have remained divided by much more than formal administrative
considerations . They belong to totally distinct and irreconcilable legal trad-
itions, namely English common law and Islamic Shari'a law . Although
applied to the same population, the two legal systems are a world apart in
terms of substance, literature and techniques . The anomaly is often emphasized
in the debate over radical legal reform in the Sudan .
All three legal systems, however, have always been implemented within the
context of a secular constituional framework . The Anglo-Egyptian Condo-
minium administration pursued secular colonial policies that maintained a
very strict separation of religion and state ." In December 1955, the Sudanese
200 A . A . An-Naim

Parliament, set up under the Self-Government Statute of 1953, adopted that


Statute as the country's first constitution . It was called the `Transitional'
Constitution because it was adopted hurriedly in order to achieve full indepen-
dence, with a view of enacting the `Permanent' Constitution at a later stage .' 1
The Transitional Constitution provided for liberal parliamentary democratic
government and guaranteed freedoms of thought, belief and expression, etc .
The Transitional Constitution was abolished by the coup d'etat of
17 November, 1958, only to be re-enacted, with some slight amendments, on
the overthrow of military rule in October 1964. Another coup d'etat, on 25 May,
1969, abolished the Transitional Constitution once again . The May Regime,
as the regime established by that coup came to be known, enacted its own
constitution, called the `Permanent' Constitution of 1973 . This 1973 Consti-
tution was also a secular document, providing for some of the democratic
rights and freedoms, including religious freedom, within a one-party state .
President Nimeiri ruled the Sudan under that constitution until his overthrow
on 6 April, 1985 . The major political parties, 12 in partnership with the Armed
Forces this time, have now adopted another `Transitional' constitution on 10
October, 1985, to be applied until another `Permanent' constitution is drafted
and enacted by the Constituent Assembly which was elected in April 1986 .
Although both the 1956 and 1973 Constitutions established a secular state,
and the legal system as a whole retained its essentially secular, common law
orientation until 1983, the question of Islamization has always been a major
issue in Sudanese political and constitutional debate since Independence . On
the one hand, all the major, northern political parties at least paid lip-service
to the policy of implementing Islamic Shari'a Law to replace the pre-existing
`colonial and alien laws' . The southern parties, on the other hand, represented
their non-Muslim constituents' objection to the implementation of Shari'a . 13
The Muslim majority almost prevailed twice, once in 1958 and again in 1968,
when draft `Islamic' constitutions were about to be enacted, thereby making
Shari'a not only the main source of legislation, but also the criterion by which
the legality of all legislation and judicial practice was to be judged . Both
attempts were aborted by coup d'etat, and nothing concrete was done to enforce
Shari'a outside the area of personal law for Muslims until the recent efforts of
former President Nimeiri .
Following his `National reconciliation' with his political opponents in 1977,
President Nimeiri set up a committee for the revision of Sudanese laws in order
to bring them into conformity with Shari'a Law . The Committee produced
seven draft bills purporting to bring Sudanese laws into conformity with
Shari'a in matters such as prohibitions of alcohol, gambling and riba (usury)
and the imposition of the hadd (prescribed penalty of amputation of the hand)
for theft, and the voluntary regulation of zakah (religious tax on Muslims) . The
most significant draft bill, 'Usol alahkam al-gad'iah (the Sources of judicial
The Islamic Law of Apostasy 201

Decisions) purported to make Islamic Shari'a law applicable in all matters not
provided for by specific and explicit Sudanese legislation . Moreover, the draft
bill made Shari'a applicable to the interpretation and enforcement of existing
legislation and created a presumption of compatibility and consistency of all
existing and future legislation with the principles of Shari'a . Any piece of
legislation was to be deemed invalid to the extent it was incompatible or
inconsistent with Shari'a . It was presumably intended to introduce subsequent
legislation to enact Shari'a principles in place of legislation found to be
inconsistent with Shari'a .
President Nimeiri did not seem at first particularly keen to implement the
program devised by the Committee for the Islamization of the Sudanese legal
system . During the first five years of the Committee's existence, the Regime
enacted only one of the seven draft bills, 14 and did not undertake the revisions
and repeal of legislation deemed to be inconsistent with Shari'a law . He did,
however, encourage the implementation of the so-called Islamic banking
system by granting `Feisal Islamic Bank' significant tax and other operational
advantages over the first five years of its existence in the Sudan . Therefore, it
came as a complete surprise, even to his own Islamic fundamentalist allies,
when President Nimeiri suddenly declared his intention in August 1983 to
transform the Sudan into an Islamic republic . 15

THE PROCESS OF ISLAMIZATION


A committee of three lawyers was set up inside the Presidential Headquarters
sometime in July-August 1983, and entrusted with the task of transforming
the Sudanese legal system into `an Islamic' one . By the first week of August,
the committee started producing the draft bills which President Nimeiri
enacted into Provisional Republican Orders having the force of law subject to
confirmation by the People's Assembly under Article 106 of the 1973 Consti-
tution . When the People's Assembly reconvened in November 1983, the
President put before it the eight Provisional Republican Orders he had
enacted over the previous two months . They included a full Penal Code, Code
of Criminal Procedure, Civil Procedure Act and a Judiciary Act . The Assembly
passed all eight Orders, without debate, in two morning sessions in its first
week of business . Other Provisional orders followed in 1983 and early 1984,
covering a wide range of legislative subjects, and were all approved by the
Assembly without much debate ." The most significant enactments of that
period include the Sources ofJudicial Decisions Act, one of the bills drafted by
Dr At-Turabi's Committee of 1977, Zakah and Taxation Act and the extensive
Civil Transactions Act which purported to regulate every aspect of civil
liability and commercial and property law .
When it became apparent to President Nimeiri that some aspects of the new
legal order were inconsistent with the 1973 Constitution then in force, he
202 A . A . An-Naim

proposed to the People's Assembly in June 1984 amendments of the Consti-


tution which were so extensive that they were in effect a fresh `Islamic'
constitution . During the debates over this `new' constitution, it became clear
that the Assembly was unlikely to pass it with the necessary two-thirds
majority . " The President then decided to postpone `debate' over the amend-
ments, and they were never reintroduced . In that way, the 1973 Constitution
remained intact until it was abolished by the April 1985 coup d'etat which
overthrew President Nimeiri and replaced him with a civilian-military
coalition . The conflict between the Constitution and Nimeiri's `Islamic' laws
remained unresolved because the Supreme Court, established under the same
`Islamic' laws, rejected on procedural grounds the few constitutional
challenges mounted against those laws . 18 These laws which remained in force
after Nimeiri's overthrow, are also inconsistent with the 1985 Constitution .
The transitional government of 1985-86 left the issue to be settled by the
parliament to be elected in April 1986 . Despite its apparent commitment to
repeal these laws, the new government which took office by the end of April
1986 has not yet acted on the matter .
With the successful completion of the legislative task, the President and his
staff turned to implementation . The judiciary and other branches of govern-
ment were obviously not doing enough to enforce the `Islamic' laws . To rectify
that state of affairs, the President decided to inject some `Islamic' spirit and
motivation into the judicial and executive organs by declaring a state of
emergency on 29 April, 1984 . Article 111 of the Constitution enabled the
President to `take the necessary measures . . . which may include the suspension
of all or any of the freedoms and rights guaranteed by this Constitution',
except the right to resort to the Courts . All measures taken by the President
under the provisions of this Article 111 were to have the force of law .
The President issued the State of Emergency Regulations of 1984, under
which he granted the Army and other security forces extensive powers of arrest
and search and established the State of Emergency Courts and Prosecution
machinery . This so-called `prompt justice' courts system dispensed with some
of the basic requirements for judicial appointments and fair trial procedure
guaranteed by the Constitution . These extraordinary measures were certainly
effective in dramatically increasing the number of convictions under the 1983
`Islamic' Penal Code, which seemed to be the sole criterion employed by the
Regime for judging the success of the `Islamic Legislative Revolution' of 1983-
84 . Public floggings and amputations for alleged violations of the `Islamic'
Code were extensively publicized by the state-owned media .
Despite its success in raising the level of criminal law enforcement, the State
of Emergency was too expensive to maintain for long . Beside the financial
burden of maintaining the security forces in a state of full alert, the continuation of
the State of Emergency contradicted the President's claims that the country
was undergoing genuine voluntary and profound religious transformation . As
The Islamic Law of Apostasy 203

he still needed the `Islamic' law enforcement advantages of the State of


Emergency, the President sought to maintain the machinery he had devised
for the enforcement of the criminal law after the abolition of the State of
Emergency in September of 1984 .
The primary tool for achieving that objective was the Judiciary Act of 1984
which repealed and replaced the `Islamic' Judiciary Act of 1983 . 19 The new
Act increased the President's power to appoint and deploy judges and set up
special courts and appoint special prosecutors to enforce the `prompt' justice
of the `Islamic' Code . The Act provided for the establishment of `special'
criminal courts to be manned by judges who may be appointed by the
President of the Republic personally, regardless of whether they satisfied
normal requirements for judicial appointment . 20 A new post of State Minister
for Criminal Affairs was established within the Attorney-General's Chambers
to supervise and conduct prosecutions before the `special' criminal courts . The
Act also gave the President the power to appoint a specific judge or a special
court to try a specific case or accused person, to appoint any person to any
judicial office, including membership of the Court of Appeal and the Supreme
Court, regardless of requirements and qualifications specified by the Act itself
for appointment to each level of judicial office . 21
Using his powers under this Act, and by means of issuing Presidential
Decrees which were immune, by virtue of Articles 81 and 82 of the Constitution,
from challenge before any authority on any grounds whatsoever, 22 the President
established a special system of criminal courts, to be served by a special system
of prosecution machinery . Cases before those courts were to be tried in
accordance with special summary procedure . Appeals and revisions were to go
before the special Court of Criminal Appeals, also set up by the President and
manned by three judges who also had their own special criminal trial courts .
As the three judges sat in the most crucial and active trial courts in the capital,
Khartoum, they often sat on appeal or revision over cases they had tried
themselves! One of these three judges was also a member of the Supreme Court
which considered constitutional challenges to proceedings before the special
criminal trial courts . In at least one major case, the same judge was sitting as
a trial judge and on the Supreme Court Panel which considered a constitutional
challenge to the legality of the trial proceedings . 23
Such was the state of the administration of criminal justice when Ustadh
Mahmoud Muhammad Taha was released from 19 months of political
detention without charge or trial, on 19 December, 1984 . In retrospect, it
would almost seem like an elaborate scheme specifically designed to entrap
and eliminate a single man . He was the only political prisoner to be executed
through the system . The immediate collapse of this judicial system after
Taha's execution seems to reflect its internal contradictions and inability to
function as a real legal instrument . Who was this man, and why did he have to
be killed in this way?
204 A . A . An-Naim

ALL IN THE CAUSE OF ISLAMIC REVIVAL


Ustadh Mahmoud was one of the founders, and the first leader of the Sudanese
Republican Party in October 1945 . The Party worked for the complete
independence of the Sudan from Egyptian as well as British control, and the
establishment of a Sudanese republic, hence the Party's name . 24
Ustadh Mahmoud, an engineer by profession, was jailed twice by the British
colonial administration in 1946 for his political activities . During his second
term of imprisonment, which extended two years, he started to develop his
conception of Islamic revival through the evolution of certain aspects of
Islamic Shari'a law . He continued his endeavor, based on the personal
worship practices of the Prophet, 25 after his release from prison in 1948 until
he mastered the theory of the comprehensive and universal level of Islamic
ideology which he continued to articulate and propagate from 1951 until his
death in 1985 .
According to this theory, Islam was originally offered in Mecca in eastern
Arabia from around A .D . 610 to 622 in terms of freedom of choice (ismah) and
personal responsibility for such choice . Numerous verses of the Qur'an at that
stage emphasized this freedom and personal responsibility . 26 Equality of all
human beings regardless of sex or religion would have followed if those texts
were made the basis of the law, but that was not to be in the 7th century . When
it was shown in practice that the Arabs were not mature enough to appreciate
and live in accordance with those superior principles, and they conspired to
kill the Prophet, the offer of freedom and responsibility was withdrawn .
Compulsion (ikrah) and guardianship were imposed following the Prophet's
migration to Medina, another town in eastern Arabia . Qur'anic verses
establishing jihad, holy war to spread the faith, and discrimination against
non-Muslims and women were revealed in this second stage . 27 The Prophet
elaborated upon these principles and made them the basis of the law, Shari'a,
of the new polity of Muslims . Muslim jurists undertook the processes of
tabulation and rationalization of the Shari'a over the following three centuries .
The earlier texts of the Meccan stage that were inconsistent with the Law as
enacted in Medina were deemed to have been repealed or abrogated from the
legal point of view . They remained part of the Qu'ran and traditions of the
Prophet and as such were revered by all Muslims, but'only as ethical
standards that enjoy moral authority without being legally binding . This was
assumed by all Muslim jurists and scholars to be the final state of affairs .
Ustadh Mahmoud, however, thought otherwise . He argued that the repeal or
abrogation of the earlier Meccan texts were merely a postponement until the
appropriate circumstances for their enforcement arose . He maintained that
the abrogation should be related to its rationale, namely the socioeconomic
and political conditions prevailing in Arabia at the time . With the radical
transformation of these conditions in Modern times, Islamic Law should
The Islamic Law of Apostasy 205

respond by enacting the verses of freedom of choice and personal responsibility


in order to establish the principles of freedom and equality which should be the
basis of the Shari'a of today . In other words, he advocated the development of a
modern Islamic Shari'a law from the basic Islamic sources to meet the needs
and aspirations of today .
The Republican Party was transformed in the early 1950s into an organization
for the propagation of this new conception of Islam . The group was never
really a political party in the usual sense of the term . The organization, for
example, never contested any election or sought power through any other
means . It concentrated, instead, on the re-education and enlightenment of the
people through public lectures, debates, pamphlets, books, etc . The group
maintained a strict policy of nonviolent, open and direct popular action .
Ustadh Mahmoud and his followers were opposed to the immediate
implementation of traditional Islamic Shari'a law . They called, instead, for the
radical revision of certain aspects of Shari'a law, and the re-education and
remolding of individual Muslims in accordance with the moral values and
ethics of Islam before any attempt at the implementation of Islamic Shari'a
law . They proposed the establishment of a socialist, 28 democratic state, where
complete equality between men and women, Muslims and non-Muslims
would prevail . Their opposition to the immediate implementation of the
totality of traditional Shari'a incurred them the severe and often violent
hostility of the `Moslem Brothers' and other Islamic fundamentalist groups . 29
In May 1983, the Republicans issued a pamphlet criticizing the Sudanese
Chief of State Security, who also happened to be the First Vice-President of the
Republic, for his failure to check the incitement to religious hatred and
abetment of sectarian violence that was being conducted in some mosques and
through the state-controlled media . The Vice-President retaliated by arresting
and detaining Ustadh Mahmoud and about 50 of his followers, without charge
or trial, for more than 18 months . 30 The detention of the Republican leadership
continued from May June 1983 to 19 December, 1984 . While they were in
detention, President Nimeiri introduced the so-called Islamic Laws of 1983-84 .
The Republicans started their campaign against the `Islamic Laws' in
March 1984, while their leadership was still under political detention, by
issuing a booklet and several pamphlets explaining how those laws not only
violated the Sudanese Constitution and distorted fundamental Islamic prin-
ciples but also contravened elementary principles of the very Shari'a law they
purported to implement. 31 The Republicans also instituted three constitutional
suits before the Supreme Court on the grounds that those laws discriminated
against women and non-Muslims and violated specific provisions of the Sudan
Constitution . The Supreme Court, which had been re-constituted under the
same laws, dismissed the suits on the ground that the Republicans had no
standing to bring them because they were not personally aggrieved by those
2 06 A . A . An-Na'im

laws . On 25 December 1984, within one week of the release of Ustadh


Mahmoud and his leading disciples, the Republicans issued a leaflet calling
for the repeal of what they described as the `September 1983 Laws', a peaceful
settlement of the conflict in Southern Sudan, 32 and the provision of oppor-
tunities for popular enlightenment and public debate throughout the country
in order to achieve proper Islamic revival .
During the last week of December 1984, members of the group were arrested
and charged, this time with the minor offense of inciting disturbance of the
peace, but the Minister for Criminal Affairs suddenly intervened and promoted
the charges to the capital offenses of undermining the Constitution and waging
war against the State, and two other offenses against the State . Ustadh
Mahmoud was himself arrested on 5 January, 1985 and brought to trial with
four of his disciples, who just happened to be arrested in the same district as
himself, on 7 January . 33 All five of them were convicted and sentenced to death
the next day, 8 January, after two brief sessions of under one hour each . The
special Criminal Court of Appeal, also constituted under the `September 1983
laws', confirmed the conviction and sentence on all five accused five days later .
On 17 January, President Nimeiri gave his final approval for the immediate
execution of Ustadh Mahmoud, and granted the other four a reprieve of three
days to repent and recant or else be executed . They recanted and were spared .
Ustadh Mahmoud and his co-accused boycotted the Court on the ground
that it was constituted under laws which, in their view, violated and distorted
Shari'a and Islam itself, and were designed to terrorize and humiliate the
people ." 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 .
In this way, Ustadh Mahmoud sought to revive Islam and interpret it in a
more egalitarian and tolerant way than that he felt prevailed under traditional
Islamic Shari'a law. His own death was the ultimate act in the advocacy of his
vision and conception of what he used to call the Second Message of Islam . As
indicated above, he believed that the repeal of certain restrictive and discrimi-
natory aspects of traditional Shari'a and, their replacement by alternative
Islamic principles is more appropriate to the needs and capabilities of modern
humanity . Such alternative principles, as he continued to explain and demon-
strate for over 30 years, would be the Islamic Shari'a law of today because they
are derived from the same basic Islamic sources in response to the challenges
and problems of modern society .
Rather than advocate secularism, Ustadh Mahmoud suggested an Islamic
way out of the problems raised by some aspects of traditional Shari'a, such as
questions of the civil and political rights of all the subjects of an Islamic state,
The Islamic Law of Apostasv 207

including women and non-Muslims . He called for the establishment of a more


just Islamic socialist economic order, where all citizens would have their basic
needs satisfied as of right, and not by way of charity . He also strove to
distinguish his conception of democracy and socialism from the prevailing
notions of liberal democracy and Marxist socialism . 35

A POLITICAL TRIAL
The whole episode was fraught with procedural and substantive errors which
compromised the proper aims of a judicial system . On the face of it, the
prosecution was itself unconstitutional on several counts in the light of the
Permanent Constitution of the Republic of Sudan of 1973-the constitution in
force at the time . It violated the freedoms of thought, belief and expression
guaranteed by Articles 47 and 48 of the Constitution . Since-incredibly-no
attempt was made at the trial to show how the accused's conduct constituted
the offenses charged, one may be justified in concluding that the charges under
the Penal Code and State Security Act were merely a pretext for bringing
Ustadh Mahmoud to the court in order to try him for his political activities and
his opposition to the implementation of Shari'a . Such opposition was deemed
to amount to a repudiation of the faith, technically known as apostasy . The initial
arrest and police interrogation of the accused were all done under the state
security offenses and nothing was said of apostasy . But when Presidential
sanction for the trial was obtained, 36 the State Minister for Criminal Affairs
added Section 458(3) of the Penal Code and Section 3 of the Sources ofJudicial
Decisions Act . Both provisions were introduced for the first time in 1983 as
part of `the September 1983 law' . The combined effect of the two sections
purports to authorize the courts to impose Islamic penal provisions, and hadd
penalities in particular, regardless of the lack of legislative provisions penalizing
the particular conduct under Sudanese law . These sections were later on
utilized by the Court of Criminal Appeal in confirming the convictions and
sentences for apostasy although the trial court made no mention of this charge,
and despite the fact that the two sections clearly violated Article 70 of the
Sudan Constitution of 1973 . 36 a
The accused were charged with several offenses against the state, pleaded
not guilty and then boycotted the Court for the reasons indicated above . The
case for the prosecution consisted of a single witness, the police officer who
interviewed the accused . This witness simply read out the statements made by
the accused to the police admitting full responsibility for the leaflet . The leaflet
itself was the only prosecution exhibit . Nothing was said or presented at the
trial on the writings or views of the accused on the wider issues of Islamic law
reform or Islamic revival . These writings and views were introduced by the
Special Court of Appeal on its own motion and made the basis of conviction for
apostasy as we shall see below .
20 8 A . A . An-Naim

There was no case presented for the defense because of the boycott, but it
must be noted here that the accused pleaded not guilty and boycotted a trial on
state security offenses and not 'a trial for apostasy . Although convicting all of
the accused for the state security offenses he specifically named, the Trial
Judge stated that the death sentence would not be carried out if the accused
were to repent and recant at any time before execution . As the notion of stay of
execution on the grounds of repentance and recanting of one's beliefs or views
is completely alien to Sudanese criminal law, the judge must have had the
Shari'a offense of apostasy in mind although he refused to mention it, presum-
ably because of the obvious constitutional objections .
Again, and although the Trial Judge failed to discuss any of the ingredients
of the offenses against the state with which the accused were supposed to have
been charged and convicted, he emphasized in his judgment those aspects of
the leaflet that hinted at the accused's conception of Islamic revival and their
belief in the need for Islamic law reform . The judge took judicial notice of those
views and beliefs, i .e . assumed the correctness of his own statement of the
position without adducing evidence in court on the matter, and ruled that the
accused's views and beliefs would cause upheaval if allowed to be publically
propagated . This is the rationale for punishing religious and ideological
dissent in traditional Islamic Shari'a . In other words, he was in fact convicting
the accused of apostasy while citing provisions of the Penal Code to make it
appear as if the convictions were for regular offenses against the state . This
clearly violates the requirements of a fair trial provided for under Article 64 of
the Constitution .
The judgment of the special Court of Criminal Appeal was at least candid in
openly raising the question of apostasy, although it dealt with it in an unsatis-
factory manner . The Court of Appeal started by noting the problem raised by
convicting the accused under the specific sections of the Penal Code, while
allowing them time to repent and recant, thereby gaining stay of execution .
The Court of Appeal then proceeded to `rectify' the decision of the Trial Court
by raising the two questions : is apostasy punishable under Sudanese law, and
if yes, did the conduct of the accused amount to apostasy as defined in Islamic
law sources? The Court answered both questions in the affirmative, and
proceeded to confirm the conviction and sentence of all five accused for
apostasy as well as the state security offenses with which they were originally
charged . According to the Court of Appeal, Ustadh Mahmoud was to be
executed immediately, without opportunity to repent and recant, because he
had persisted in advocating his `heretical' views for many years and refused to
heed judicial and other pronouncements . He was, moreover, to be denied
burial with Muslim rites, and his property was to be'forfeited upon his death .
The other four convicts were allowed one month to repent and recant and re-
embrace Islam or else be executed . All Republicans, i .e . the followers of
The Islamic Law of Apostasy 2 09

Ustadh, were declared by the Court of Appeal to be apostates, to be treated as


such in all matters and transactions . Their books, pamphlets and other
publications were to be confiscated and destroyed, and all future publications
and circulation of such material was banned together with any other activities
of the Republicans . This judgment of the special Court of Appeal was then
submitted to the President of the Republic for final confirmation .
Since the accused were never formally charged with apostasy, they, naturally,
offered no defense against it . Even the prosecution did not present any
evidence in support of apostasy! It was the Court of Appeal which took it upon
itself to specify and try apostasy for the first time at the confirmation of
proceedings stage . In the absence of the accused, and without representation
for either side, the Court of Appeal produced its own interpretation of the
views and theories of the accused . In convicting Ustadh Mahmoud of apostasy
the Court relied almost exclusively on two grounds : a ruling by a Shari'a Court
in Khartoum on 18 November, 1968, and the extra judicial announcements of
foreign institutions declaring the apostasy of Ustadh Mahmoud .
As to the first ground, the decision of the Shari'a Court was completely null
and void because that Court lacked jurisdiction over questions of apostasy as
such . 37 The cause of action itself was unconstitutional in the light of the 1956
Constitution, as amended in 1964, which was in force in 1968 . The defendant,
Ustadh Mahmoud was therefore entitled to refuse to attend the 1968 trial, and
he in fact simply disregarded its outcome . There was nothing the plaintiffs
could do to compel his attendance or enforce the judgment of the Court . How
could, therefore, the judgment of one court in a civil cause of action, rendered
in the absence of the defendant and without any jurisdiction, be a basis for a
criminal conviction by a different court 17 years later?
The Court of Appeal then proceeded to cite the opinions of two foreign
institutions, namely the Muslim World League and the Egyptian Azhar
University, to the effect that these institutions held Ustadh Mahmoud to be an
apostate and advised the Sudanese authorities to treat him as such . It is obvious
that such `opinions' have no weight in a court of law, especially since they were
not adduced in evidence by the prosecution in a way that enable the accused or
their counsel to cross-examine the experts on their claims to have the competence
to make that judgment, and the grounds on which it was based .
The unjudicial reasoning of the Court of Appeal is also reflected in the
manner in which the Court dismissed legal objections to the imposition of the
death sentence on Ustadh Mahmoud . Section 247 of the Code of Criminal
Procedure, 1983, one of the `Islamic' laws themselves, prohibits the imposition
of the death penalty on any person over 70 years of age . Ustadh Mahmoud was
76 years old at the time . The Court of Appeal simply dismissed this provision as
inapplicable to Islamic hadd offenses, i .e . offenses for which Shari'a sets a specific
unalterable punishment, since no law may be interpreted in contravention of
21 0 A . A . An-Na'im

Shari'a . There was, however, no legal basis for that claim in relation to the
Code of Criminal Procedure 1983 . 38
Having dismissed Section 247 in this arbitrary way in relation to the so-
called hadd offense of apostasy, the Court of Appeal immediately proceeded to
confirm the conviction and sentence under the Penal Code and the State
Security Act, expressly describing them as non-hadd offenses . Even if Section
247 of the Code of Criminal Procedure did not apply to apostasy, it surely
applied to the ordinary criminal offenses under the Penal Code and the State
Security Act. It would therefore seem that the Court of Appeal was keen to
confirm the death sentence, irrespective of legal objections .
President Nimeiri cited religious and political reasons for confirming the
convictions and sentences on all five accused . He ordered the immediate
execution of Usladh Mahmoud, and reduced the period allowed for recantation
by the other four accused, from the one month allowed by the Court to three
days only . The President simply quoted claim after claim of alleged heretical
views and beliefs of the accused, without bothering to cite or adduce any
specific reference to the sources of such allegations in the writings and
utterances of the accused . He also cited evidence of the emerging opposition of
the group headed by Ustadh Mahmoud, the Republicans, to his regime in
support of the view that the group was really a political organization and not
an intellectual group .
Although the President's speech made no explicit mention of apostasy, and
confirmed the convictions under specific sections of the Penal Code and State
Security Act, all his arguments and reasons related to apostasy rather than any
other offense . Ustadh Mahmoud was thus executed for an offense for which no
one could be legally tried under Sudanese law in force at the time-an offense
of which he was not personally guilty in any case, since he was not an apostate
but rather a non-violent Muslim scholar and reformer who happened to hold
views on Islamic revival that were at variance with those held by the
government of the day . In the absence of any other rational explanation, one is
forced to conclude that Ustadh Mahmoud was sacrificed in the cause of
maintaining President Nimeiri's personal drive for Islamization, whatever the
real motives behind that drive may have been . Ustadh Mahmoud was killed in
order to frighten others who might have been contemplating criticism or
opposition to Nimeiri's policies in general, and his Islamization policy in
particular . 38a

TRADITIONAL ISLAMIC LA W OF APOSTASY


President Nimeiri's motives and methods are not in issue here-even
though one can argue that he exploited various religious or philosophical
precepts in a bid to perpetuate his stay in power . What is at issue is the fact that
the traditional Islamic law of apostasy is not only liable to be abused, but that
The Islamic Law of Apostasy 211

it is also inherently in contradiction with more universally accepted standards


of constitutional civil liberties and international human rights . The case of
Ustadh Mahmoud in the Sudan cannot, unfortunately, be dismissed as an
isolated and curious example of despotic and oppressive brutality . Notwith-
standing President Nimeiri's manipulation of Sudanese law, it is in fact genuine
traditional Islamic law of apostasy that confronts Muslims all over the world
with very real and fundamental questions . Before reviewing some of the
human rights and civil liberties implications of apostasy, and considering
some possible answers, it may be necessary to point out the legal bases of the
offense and its consequences under traditional Islamic law .
Islamic law has two primary sources, the Qur'an and Sunna, the traditions
of the Prophet . The agreement of the learned as representing the body of
believers (Ijma'a) and derivation of legal principles by analogy (Qiyas) are
subsidiary sources, resorted to either to settle arguments on the interpretation
of Qur'an and Sunna, or to provide for situations not covered by the two
primary sources .
The Qur'an deals with apostasy in several verses : e .g . chapter 4, verse 90 ;
chapter 5, verse 59 and chapter 16, verse 108 . None of these verses expressly
provide for the penalty for apostasy in this life, but they all condemn the
apostate in very harsh and unequivocal terms . The punishment of apostasy in
Shari'a is based on Sunna . It is reported, for example, that the Prophet said :
`The blood of a fellow Muslim should never be shed except in three cases : That
of the adulterer, the murderer and whoever foresakes the religion of Islam' . 39
It is also reported that the Prophet, peace be upon him, said : `Whosoever
changes his religion, kill him' .
On the bases of these Sunna, and standard commentaries on the Qur'an,
traditional Islamic schools of jurisprudence are unanimous in holding that
apostasy is. punishable by death, although they differ on such questions as to
whether to execute the sentence immediately or grant the apostate a reprieve
of a few days in order to allow him time to reflect and reconsider his position in
the hope that he may recant and re-embrace Islam, thereby saving his life as
well as his sou1 . 40 There is also disagreement on whether a female apostate is to
be killed or merely imprisoned until she returns to the faith . Her offense is not
regarded by any school or jurist to be of less magnitude, the disagreement
merely relates to whether the appropriate punishment is death or life imprison-
ment .
Other traditions cited in commentary and jurisprudence (fiqh) books in the
context of apostasy may raise problems of interpretation as they tend to cover a
more serious situation than mere passive apostasy . It is reported, for example,
that a band of Arabs, from `Ukl tribe came to the Prophet in Medina and
announced their embrace of Islam . When they were later taken ill, they asked
the Prophet for medicine, and he advised them to go outside the town to live
212 A . A . An-Naim

with the Muslim herdsmen, and drink the milk and urine of their camels .
When they recovered, the eight Arabs apostasized, killed the herdsmen and
drove off with the camels . The Prophet ordered their capture and slow death
and dismemberment . This extremely harsh punishment may be explained by
a number of factors peculiar to this specific case . The offense itself, to begin
with, was not merely passive apostasy but also robbery and murder, the
former warranting the penalty of death and dismemberment as a hadd offense,
i .e . one for which specific penalty is specified, while the latter is punishable by
the qassas penalty for murder, which is death . There were also considerations
of state security to be taken into account in the light of prevailing nomadic
customs and practices of 7th century Arabia . 41
If apostasy as an offense punishable with death was based solely on this last
cited tradition, it may be argued that the Prophet was penalizing those Arabs
for the multiplicity of aggravated offenses they committed, and not merely for
passive apostasy . The offense and its punishment are based on the much
stronger and more explicit authority of the two Sunna cited above and the oma'
of all leading Muslim jurists and schools .
A number of other drastic civil law consequences follow upon a finding of
apostasy . 42 The legal effects of all the acts of an apostate are suspended
pending his repentance or death . His right to dispose of his property, for
example, is immediately held to be in abeyance (mawqof) until he either
repents or is executed, or dies if he had escaped punishment . If he repents and
returns to Islam, on the one hand, all his property rights are restored,
including the right to dispose of it in the usual ways . If he dies an apostate, on
the other hand, his estate falls to the Public Treasury . An apostate also lacks
the capacity to himself inherit from others . A marriage contract is immediately
dissolved (faskh) upon the apostasy of either spouse . 43
These are the basic generally agreed criminal and civil law consequences of
apostasy under traditional Islamic Shari'a Law . How does that Law determine
apostasy? What is the test for identifying an apostate who is to suffer those
consequences?
An apostate, one who is held to have turned away from Islam (murtadd), is a
Muslim by birth or conversion who has renounced Islam, regardless of
whether or not he subsequently embraced another faith . He is held to have
done so if he expressed unbelief by words or deeds, whether explicitly or by
necessary implication . 44 The test commonly applied is whether he has repudi-
ated what is `necessarily' known to be part of the Islamic Religion, presumably
as determined by the judge or court . It is only natural that jurists differ on
whether or not certain instances or cases are covered by this test, 45 but the
following examples are clearly beyond dispute . A person who is known to have
been a Muslim and then converted to Christianity or any other religion, or
simply declared himself to have become atheist or agnostic, is the most obvious
The Islamic Law of Apostasy 213

example . Even a Muslim who does not openly declare himself to have become
an atheist, but is known to be a Marxist, for example, may be held an apostate
because Marxism is believed by most Muslim jurists to be incompatible with
Islam . Other generally agreed examples include Muslims who join the
Ahmadi sect or the Baha'i faith because of the belief of these groups that
Muhammad, peace be upon him, is not the final Prophet ." Members of these
two religious traditions are in fact persecuted, sometimes prosecuted, in Iran
and Pakistan, for example, because of their religious beliefs . Very recent
examples of specific cases of persons treated as apostates on such grounds are
reported within the most developed Muslim countries, 48
A controversial application of the principle of apostasy is to be found in the
area of the duty to implement Islamic Shari'a law today . Some jurists and
scholars argue that the literal meaning of some Qur'anic texts indicate that
any Muslim who refuses to judge or be judged by Shari'a law is an apostate . 49
While not disputing the basic premise of this principle, some modern scholars,
however, insist that such rejection of Shari'a must arise out of the belief that
non-Islamic rules are better and more just than Islamic rules . 50 This has
recently been a serious political issue in some Muslim countries, 51 and
continues to be the almost irresistible argument of the fundamentalists who
demand the immediate implementation of the totality of Shari'a . It places the
burden on the secularists to argue against the implementation of Shari'a
without falling into the trap of apostasy . A secularist would either have to
admit the validity and justice of Shari'a and thereby abandon his opposition to
its implementation, or reject it as inappropriate and unjust and accept the
consequences of being declared an apostate .

APOSTASY AND RELIGIOUS FREEDOM TODAY


The inescapable conclusion of the above review of traditional Islamic Shari'a
law of apostasy is that it is inconsistent with modern notions of religious
freedom, an internationally acknowledged basic human right and generally
accepted fundamental civil liberty guaranteed by most constitutions through-
out the world .
Modern Muslim jurists and scholars have responded to this charge in a
variety of ways . Some proponents of Shari'a simply claim that Shari'a is
beyond defense or justification, it being an article of faith with `good' Muslims
that anything that is inconsistent with Shari'a is necessarily wrong and bad .52
Others make an attempt to justify the law of apostasy on the ground that it
amounts to high treason, and is therefore punished as such . 53 They maintain
that Islam is not only a religion, but also a social and political order . An
apostate repudiates the very basis of this society, and ceases to hold allegiance
to it . As such, he is most probably going to engage in hostile subversive
activities . According to this argument, an apostate is killed in order to protect
2 14 A . A . An-Naim

the Islamic polity, an extreme preventive measure . This line of reasoning may
be acceptable to some Muslims but it can never be convincing to non-
Muslims, or even Muslims who expect to have rational objective justification
for such basic policy decisions .
Another equally unconvincing line of argument seeks to limit the scope of
religious freedom by excluding the freedom to change one's religion or belief . 51
For one thing, this is an integral part of the freedom of thought, conscience and
religion as defined by Article 18 of the Universal Declaration of Human Rights
and Article 18 of the International Covenant on Civil and Political Rights . 55
That was only logical because the freedom to change religion or belief is
essential to any notion of religious freedom . The Muslims themselves would
demand this dimension of freedom for those wishing to convert to Islam, how
can they argue for its denial to those wishing to repudiate their faith in Islam?
It appears that it was this compelling logic which forced all the Muslim states
who are members of the United Nations to accept such freedom in the recently
adopted Declaration on the Elimination of Intolerance and Discrimination
Based on Religion or Belief . 55a It is true that they objected to identical language, 56
but the phrase they did accept amounts to the same thing . Article 1(1) states
that the right to freedom of thought, conscience and religion `include freedom
to have a religion or whatever belief of his choice' . Other Articles of the same
Declaration provided for more specific rights and freedoms in this regard, such
as the guarantee against coercion which would impair the freedom to have a
religion or belief of his choice, and protection against discrimination on
grounds of religion or other beliefs .
A more plausible line of reasoning is taken by another group of modernist
Muslim scholars who seek to change the traditional Islamic Shari'a law of
apostasy . There are those, for example, who argue that apostasy should not be
punished with death unless it was accompanied by a threat to the Islamic
state . 57 According to the logic of this argument, the apostasy of the person
should be an irrelevant consideration, the offense being treason or other
appropriate offense against the state . Such offenses can be defined and
enforced within the ordinary criminal law of the land, without making any
reference to the religious beliefs of the accused person . When stated in these
terms, we find that this argument lacks legal and theological foundation in
Shari'a law which is primarily concerned with the question of religious belief,
with the notion of treason or offense against the state coming as a much
delayed attempt at rationalization .
Another difficulty with this approach is that it is limited to trying to restrict
the imposition of the death penalty for passive apostasy, and has nothing to say
in relation to the civil law consequences of apostasy indicated above . Moreover,
since these arguments are limited to questioning the legal basis for imposing
the death penalty for apostasy under Shari'a, and do not seek to establish a
The Islamic Law of Apostasy 215

positive right to change one's religion or faith, they admit that adverse
consequences may follow upon apostasy . This is inconsistent with freedom of
religion .
The modernist Muslim scholars who adopt this line of reasoning seem to feel
the political need to operate within the framework of traditional Shari'a in the
hope of gaining quicker and wider acceptance for their views . This position
would drastically limit the scope of their endeavor because it implies submission
to the strict canons of construction and derivation of legal rules ('usol al
filth) applied by the jurists of traditional Shari'a. The most serious difficulty they
face is the cardinal principle of Shari'a that there can be no exercise of rational
juristic reasoning (~tihad) in any matter covered by an explicit text of Qur'an
or Sunna . In view of this principle, it may not even be possible to avoid the
death penalty for passive apostasy because it is based on the very explicit
Sunna quoted above . 58

A NEW APPROACH
It is precisely in response to these difficulties and limitations of reform within
the framework of traditional Shari'a that Ustadh Mahmoud Muhammad Taha
strove to perfect his novel reform technique outlined above. As applied to the
present problem, namely the inconsistency between Shari'a law of apostasy
and the modern principle of freedom of religion and belief, the principle of
Evolution of Islamic Shari'a, tatwir at-tashri' al-Islami, as he used to call his
approach, may be summarized as follows .
As noted above, Islam was originally offered in Mecca, around A .D . 610 to
622, through the principle of freedom of choice and voluntary conversion
(ismah) . Qur'anic texts of this class are often cited as evidence of religious
freedom and tolerance in Shari'a law . 59 This is misleading, however, because
the legal principles of Shari'a were not based on this class of texts . Legally
binding principles were in fact based on the repeal or abrogation (naskh), in
legal terms, and the enactment of the texts of compulsion (ikrah) revealed
subsequently in Medina following the Prophet's migration to that town
around A .D . 622 .60 This basic shift, which was manifested in the principles of
Shari'a providing for jihad, and discrimination against non-Muslims, is
summarized in the Sunna in which the Prophet, outlined his future policy as
follows : `I have been instructed to fight people until they accept that there is no
god except God, and that Muhammad is the Messenger of God [i .e . the
Islamic affirmation of faith] and undertake the prayers and payment of Zakah
[i .e . Islamic worship practices] . Once they do that, they become secure in life
and property except for just cause [i .e . in accordance with due process of law],
and I leave their sincerity to be judged by God' .
It is therefore clear that the legally binding principles of Shari'a were not
based on the texts of freedom of choice, but rather on the texts of compulsion
2 16 A . A . An-Naim

and jihad. The former group of texts, which were in fact revealed earlier in
Mecca, remained part of the Qur'an and Islamic traditions, albeit not part of
the legally binding law . 61 Ustadh Mahmoud started with the premise that the
repeal of those texts was actually a postponement and not final abrogation ."
He then suggested that Muslims should now enact those texts and repeal,
again in legal terms only, the texts of compulsion and jihad . It is important to
note that he was only concerned with legal efficacy, and the repeal of texts in
this sense does not tamper with the sanctity of the Qur'an or deny any of its
texts .63 Ustadh Mahmoud simply maintained that the Qur'an was designed to
provide the Muslims with a comprehensive source of guidance and instruction .
The Muslims should apply themselves to that source in order to derive their
law, the modern Shari'a, in the same way the Muslims of 7th century Arabia
and the Middle East applied themselves to that fundamental source and
developed their law, which has been handed down to us as historical Shari'a .
This technique of shifting legal efficacy from one class of texts to another
may also be employed in other areas of Islamic law, thereby evolving Shari'a in
relation to the status and rights of women, and other questions of economic,
social and political reform . 64 This approach involves the radical revision and
reformulation of the techniques for deriving legal rules from basic Islamic
sources ('usol al-fqh) . To remove all the criminal and civil law consequences of
apostasy, for example, it is necessary to practise rational juristic reasoning
(Ytihad) throughout a wide range of legal principles, including those derived
from explicit Qur'an and Sunna texts . This is not possible within the frame-
work of traditional Shari'a because the traditional rules for derivation of legal
principles from basic sources ('usol al-fiqh) will not permit Ytihad in matters
governed by explicit texts . It takes a juridical revolution to evolve Shari'a and
not merely reform it, thereby removing all features of compulsion and infringe-
ments of religious freedom in the fullest and widest sense of this basic human
right .

CONCLUSION
This preliminary study demonstrates that the Shari'a law of apostasy violates
freedom of religion because it penalizes a Muslim who renounces his faith in
Islam . According to the prevailing view, apostasy is punishable by death .
Several negative civil law consequences also follow upon a finding of apostasy .
It is true that some modern Muslim scholars have argued against the death
penalty for apostasy, while others have tried to restrict the death penalty to
apostasy when combined with active rebellion .' With all due respect to the
effort put into the argumentation of both positions, it is still inconsistent with
religious freedom to maintain the negative civil law consequences of apostasy .
The only Muslim author who has argued convincingly for the abolition of all
civil as well as criminal law consequences of apostasy, in my view, is the late

The Islamic Law of Apostasy 217

Sudanese reformer Ustadh Mahmoud Muhammad Taha. To establish com-


plete freedom of religion within Islamic law, argued Ustadh Mahmoud,
Muslims must be prepared to base this aspect of Islamic law on a group of texts
of Qur'an and Sunna that has hitherto been deemed to have been repealed or
abrogated by the operative texts that discriminate against non-Muslims and
penalizes apostasy .
This technique is clearly revolutionary, but it seems to be the only way for
removing all the legal basis for discrimination on grounds of religion or belief.
Some Muslims may maintain that it is not necessary to abolish such discrimi-
nation because this is the proper and fair way to treat non-Muslims and
apostates . Arguments based on the principle of freedom of religion are unlikely
to influence this class of Muslims . For those Muslims who feel the need to
abolish legal discrimination as bases for protecting freedom of religion and
enhancing tolerance, the technique suggested by Ustadh Mahmoud deserves
serious consideration .

NOTES
The first draft of this article was prepared at Columbia University, New York City,
under a generous grant from The Ford Foundation . I am grateful for the many helpful
comments and suggestions offered by Professors William Alford, Henry McGee and
Phillip Trimble of the UCLA School of Law .
I wish to dedicate this discussion to Ustadh Mahmoud Muhammad Taha, the
Sudanese Muslim reformer whose execution is discussed in this article . His exceptional
courage and superior moral stature, his vision and support, have helped many Muslims
both to see certain problems and to speak clearly of them .
I For a survey of the working of these three systems see C . Thompson, `The Sources
of Law in the New Nations of Africa : A Case Study of the Republic of the Sudan',
1966 Wisconsin Law Review 1146 .
2 Islamic Law was applied informally by the people as part of their customs long
before the Turco-Egyptian administration introduced official courts in the 19th
century .
3 Abu Rannat, `The Relationship between Islamic Law and Customary Law in the
Sudan', Journal of African Law, 1960, 9 .
4 The process of reception and its circumstances are discussed in detail in Z .
Mustafa, The Common Law in. the Sudan (Clarendon Press, Oxford, 1971) .
5 See id . chapter IX on the operational difficulties that seem to have led to this
result .
6 Major revisions and re-enactments of the main codes and statutes were undertaken
in 1925, 1941, 1955 and 1974 .,
7 N . J . Anderson, Islamic Law in Africa (Her Majesty's Stationery Office, London,
1955), pp . 301-321 .
8 For aspects of Islamic and non-Islamic personal law in the Sudan, see C . O .
Farran, Matrimonial Laws of the Sudan (Butterworth, London 1963) .
9 The Judiciary Act was amended several times, and re-enacted twice during the
1970s and early 1980s before the enactment of the so-called Islamic Judiciary Act
of 1983 .

2 18 A . A . An-Naim

10 It seems that the colonial administration was very sensitive to the dangers
of religiopolitical movements such as that of al-Mahdi which ousted the
previous Turco-Egyptian administration in 1884 . The new administration was
therefore careful to maintain a balance between respect for the religious feelings
of the population and the exclusion of religion from legal and political
processes .
11 M . `Abd Al-Rahim, Imperalism and Nationalism in the Sudan (Oxford University
Press, 1969), pp . 226-227 .
12 The traditional political parties, such as the Umma (Mahdists) and Democratic
Unionists, etc ., were revived after the overthrow of President Nimeiri who had
banned them for 16 years, since the coup of 1969.
13 Southern Sudan is predominantly non-Muslim in contrast to the predominantly
Muslim northern part of the country .
14 The least controversial bill, the one providing for the regulation of the voluntary
collection and distribution of zakah, Muslim religious alms, as a charity and not
obligatory tax, was selected for enactment during that period .
15 President Nimeiri's regime was always under attack by Muslim fundamentalists
who demanded the immediate and total implementation of Shari'a in the Sudan .
The regime tried to accommodate and contain the fundamentalists under the
`National Reconciliation' policy adopted in 1977 . As the pressure continued,
President Nimeiri seemed to have decided to implement Shari'a on apparently
his own initiative, thereby taking political credit for the move .
16 Although Article 106 of the 1973 Constitution clearly provided for legislation by
Provisional Republican Orders as exceptional procedure to be used `at any time
when the People's Assembly is not in session or in cases of importance and
urgency . . . ', President Nimeiri used this method to pass all the so-called Islamic
Laws of 1983-84, even when the Assembly was in session and quite available .
Extensive and highly technical legislation, such as the Zakah and Taxation Act
and the Civil Transactions Act, were all enacted by Provisional Orders and
subsequently confirmed by the Assembly with very little debate . The apparent
effect of enactment as a Provisional Order is to make it extremely difficult for the
Assembly to reject the bill as that would amount to direct confrontation with the
President of the Republic . It must be noted in this connection that Article 108 of
the same Constitution authorized the President to dissolve the Assembly if he
`considers that the public interest and the circumstances necessitate new elec-
tions . . . ' The President did in fact utilize this power more than once . The only
People's Assembly that refused to confirm the President's Provisional Orders
was dissolved soon after it took that decision in 1979 .
17 It seems that the Assembly felt that the amendments were too drastic, trans-
forming the nature of the Regime itself, and maybe costing the Members of the
Assembly their political base . Many Members knew that they would not be re-
elected if Sudan was transformed into an `Islamic Republic .' Another factor that
may have contributed to the defeat of the constitutional amendments was the
position taken by the Members from Southern Sudan . These non-Muslim
Members of the People's Assembly walked out in protest when the Provisional
Orders enacting the so-called `Islamic' Laws were being confirmed by the
Assembly in November 1983 . They changed their tactics in confronting the
proposed amendments of the Constitution by staying and forcefully arguing
against their adoption .

The Islamic Law of Apostasy 219

18 Three constitutional suits brought by several Republicans, followers of Ustadh


Mahmoud, were all dismissed by the Supreme Court on the ground that the
applicants had no `standing' to bring the suits, i .e . they were not personally
aggrieved by the legislation which they challenged as unconstitutional . The
Court neither defined `standing' nor attempted to show how the principle applied
to the plaintiffs .
19 In accordance with the policy of total Islamization, the Government adopted the
Islamic Hijri calendar to replace the Western Gregorian calendar previously
used . The second judiciary Act was therefore called the judiciary Act 1405 Hjri,
i .e . 1984 .
20 Section 16(1) of the judiciary Act 1984 authorized the President of the Republic
to establish `special' criminal courts for the national capital, while Section 16(2)
authorized the Chief Justice to do the same in the provinces . Section 17 to 19
specified the `special' procedural rules applicable to the `special' criminal courts .
Section 29(b), as explained in the following footnote, provided for the President
of the Republic's power to appoint any person to any judicial position, regardless
of qualifications and other requirements .
21 According to Section 29(b) of the judiciary Act of 1984, the President of the
Republic may, on the recommendation of the High Judiciary Council, appoint
any person to any judicial position irrespective of the conditions set out in
Sections 23 to 26 for appointment to various ranks of judicial office . The
requirement of recommendation by the High Judiciary Council provided no real
safeguard because the President of the Republic was not only the President of the
High Judiciary Council, but he also appointed and dismissed the other members
of the Council at will.
22 These two articles were amended in 1975 in order to confer on Presidential
Orders and Decrees such immunity .
23 This case involved the trial of an Indian merchant named Lalitt, who was
resident and doing business in the Sudan, for certain business practices, some
of which were not penalized by Sudanese law in force at the time . The constitu-
tional challenge raised by defense counsel was dismissed by a Panel of the
Supreme Court of which the trial judge, al-Makashfi Taha al-Kabashi, was a
member .
24 In the 1940s, some of the Sudanese nationalists were working for the evacuation
of British forces and administrators so that the Sudan may unite with Egypt .
Others were seeking independence with very close ties with Britain . The
Republican Party was formed to oppose both strategies and demand immediate
total independence .
25 Ustadh Mahmoud insisted that his ideas were based on deep religious insights
acquired during his profound spiritual experience, and not as a result of purely
rational intellectual endeavor . This is important for the religious authenticity of
his views in accordance with the mystic approach he had subscribed to through-
out his adult life .
26 See, for example, the Qur'an chapter 16, verse 125 ; chapter 18, verse 29 ; chapter
49, verse 13 and chapter 2, verse 228 .
27 See, for example, the Qur'an chapter 9, verses 5 and 29 ; and chapter 4, verse 34 .
28 Although he supported socialist economic development, Ustadh Mahmoud was
strongly anti-Marxist . He objected to Marxism's atheism, and accused it of
failing to achieve socialism .
220 A . A . An-Naim

29 The Muslim Brothers' fundamentalist movement originated in Egypt around


1928 . It spread into Sudan in the late 1940s and early 1950s when it was being
persecuted in Egypt . Although there are other fundamentalist groups in Sudan,
the Muslims Brothers are by far the strongest and best organized group . On the
Muslim Brothers generally see, for example, R . Mitchell, The Society of the
Muslim Brothers (Oxford University Press, 1969) .
30 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 authorized
detention without trial only for one who `is about to commit or is likely to commit
any of the offenses under this (State Security) Act', i .e . specified offenses against
the state . The Republicans were neither `about to commit' nor `likely to commit'
such offenses as they were actively supporting the Regime at the time . In the
pamphlet which constituted the immediate cause of their detention, the Republi-
cans 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
Sudanese Code of Criminal Procedure, Section 156 .
31 The pamphlet argued that the laws violated the general precepts of Islam as a
religion as well as violating the specific provisions of Shari'a as a law . To illustrate
the second point, they cited the omission of the requirement that theft must be
from a securely enclosed place in order to warrant the penalty of amputation . The
omission of this requirement under Section 320 of the `Islamic' Penal Code
greatly increased the incidence of amputation by allowing it to be enforced to a
much wider class of offenses than originally intended by Shari'a .
32 Civil war had resumed in 1982 in Southern Sudan, following President Nimeiri's
violation of the Addis Ababa Agreement of 1972, which ended the first civil war .
By first redividing the Southern Region and then subsequently unilaterally
imposing Islamic Shari'a law, President Nimeiri acted against the letter as well
as the spirit of that Agreement .
33 Ustadh Mahmoud was arrested and tried in Omdurman, across the White Nile
from Khartoum . Other Republicans were arrested and charged with the same
combination of offenses in other parts of the Capital, Khartoum, and in other
towns of northern, eastern and central Sudan . All charges against the other
Republicans were subsequently dropped following the execution of Ustadh
Mahmoud . Over three hundred Republicans who were detained without charge
around the same time were also released over the two weeks following the
execution .
34 Each of the accused made a short statement explaining his reasons for refusing to
'co-operate' with the Court, and then remained silent for the duration of the trial,
refusing to answer questions or present any defense .
35 Ustadh Mahmoud was critical of injustices of the capitalist liberal tradition as
well as the atheism and oppression of totalitarian Marxist-Leninism . He published
about 30 books and many newspaper and magazine articles . He also lectured and
debated in many Sudanese towns and cities for over 20 years . His followers, the
Republicans, also published hundreds of pamphlets, booklets and articles and

The Islamic Law of Apostasy 221

traveled all over the Sudan distributing their literature, holding debates and
giving public lectures on their methodology for Islamic Law reform .
36 The specific sanction of the President of the Republic is required for prosecutions
of certain offenses against the state under Section 147 of the Code of Criminal
Procudure 1983 .
36a Article to guarantee against the imposition of criminal punishment in the
absense of pre-existing penal provisions in Sudanese law .
37 The jurisdiction of Shari'a Courts was then determined by the Sudan Moham-
medan Law Courts (Amendment) Act 1961, which limited such jurisdiction to
questions regarding marriage, divorce, guardianship of minors or family relation-
ships provided that the marriage to which the question related was concluded in
accordance to Mohammedan Law . . . ', wakfs, gifts and succession amongst
Moslems or parties who submitted to the jurisdiction of the Court . The Shari'a
Court had no jurisdiction over apostasy as such . See C . O . Farran, Matrimonial
Laws of the Sudan, pp . 230-234 .
38 The Code makes no exceptions of hadd or any other offenses . There was also no
provision anywhere to the effect that Shari'a principles are superior to other
legislation or raising a presumption of consistency with Shari'a .
38a Following the overthrow of former President Nimeiri in April 1985, the daughter
of Ustadh Mahmoud and one of his co-accused instituted a constitutional suit
before the Supreme Court (S .C ./Const . S ./2/1406, i .e . 1986) to have the judg-
ment against Ustadh Mahmoud and his co-accused set aside as null and void .
The petition, dated 25 February, 1986, cited a wide range of constitutional and
procedural objections . On 17 April, the Attorney General, acting as counsel for
the Government, directly admitted the case for the applicants and stated before
the Supreme Court that he had nothing to say in defense of that trial which was
totally illegal . The Supreme Court, however, asked for a more detailed itemized
response to the applicants' petition . As of the date of the publication of this
article, the Supreme Court has not yet ruled on the substantive issues . In view of
the direct and complete admission by the Government's attorney it is difficult to
see how the Supreme Court can avoid giving judgment for the applicants .
Nevertheless, as this Article demonstrates, one should not readily expect rational
legality to prevail in a Muslim country when principles of Shari'a are being
challenged . Moreover, even if the Supreme Court should nullify this particular
trial and exonerate Ustadh Mahmoud, the problems with the Shari'a law of
apostasy discussed in this article shall remain unless and until they are treated
authoritatively by the Muslims themselves acting from within the religious
tradition .
39 According to some sources, the Sunna adds, ' . . . foresakes (or abandons) his
religion and separate himself from the community' . This element of rejection of
the community is seized upon by those who argue that mere passive apostasy,
without threatening the Islamic state, is not punishable by death . The first
Sunna, and the numerous sources that report this second Sunna without the
additional factor seem to reduce the credibility of this restrictive interpretation .
40 Ibn Rushd Al Qartabi, 2 Badyet-Al-Mujtahid, 383 . See Peters and Devries,
`Apostasy in Islam', XVII Die Welt des Islams, I at 5 et seq . (1976-77) .
41 This incident is usually cited by treatises on the meaning of the Qur'an as an
illustration of the capital offense provided for under chapter 5, verse 33 (i .ed
fasad
fi al-ard) .

222 A . A . An-Naim

42 Procedural requirements for a fair trail of the issue can easily be added in the
modern context although they may not have been a part of the traditional
literature on the subject .
43 Peters and Devries, supra note 40, at 7-9, and sources they cited in their footnote
15 on page 7 .
44 Id . at 2-4 .
45 See Nu'man `Abd Al-Razid Al-Samarr'i, Ahkam Al-Murtad Fi Al-Shari'a Al-
Islamyya, 116 (1968) .
46 Peters and Devries, supra note 40, report at page 11 an authoritative legal opinion
(fatwa) by a committee of al-Azhar (Islamic University in Cairo, Egypt) to the
effect that a marriage concluded with a known communist man from a Muslim
family would be null and void, as he must be considered an apostate .
47 Id . at 10-11, and authoritative legal opinions from various Muslim countries
cited there .
48 Human Rights Internet Reporter, 10, 3 & 4 (January-April 1985), quoted on page
406 a statement of the American Coptic Association, Christians of Egypt, U .S .A.
(29 March, 1985) reporting the decision of an Egyptian Administrative Court
which ruled that the Baha'i marriage is invalid, even if both parties are Baha'is.
49 Qur'an chapter 5, verse 44 .
50 See Mahmoud Shaltut, Al-Fatawa, Dirasah Li-Mushkilat Al-Muslim Al-Mu Asir
Fi Hayatih Al-Yawmiyah Wa-Al-Ammah, 37-9 (1969) 6 Mohamed 'Abduh and
Mohamed Rashid Ridda, Tafsir Al-Manar, 405 et seq .
51 Peters and DeVries, supra note 40, at 12 quoted an example from Tunisia in the
1930s when Tunisians who adopted French Nationality, and as such became
subject to French law, were regarded as apostates by other Tunisians who
demanded that such apostates should not be buried in Muslim cemeteries .
52 `Abd Al-Mota'al Al-Saidi, Al-Hurriyyah Al-Diniyyah Fi Al-Islam (Religious
Freedom in Islam) (undated) 56-64 and 74-88 .
53 There are several versions of this argument . See. for example, `Abd Al-Qadir
'Awdah, 1 At-Tashri Aj jinay Al-Islami (Islamic Criminal Legislation) 536 ; and
Mohamed Al-Ghazali, Hoqoq Al-Insan Bayn Ta'Alim Al-Islam Wa-I'Lan Al-
Omam Al-Mottahidah (Human Rights between Islamic Principles and the United
Nations' Declaration) 102-103 (1963) .
54 For examples of this reasoning, see Samuel Zwemer, The Law Of Apostasy In Islam
(Marshall, London, 1924) 45 : and Wafi, `Human Rights in Islam', 11 Islamic
Quarterly 64 65 (1967) .
55 All Muslim countries have by now adopted the United Nation's (U .N.) Universal
Declaration of Human Rights, 1948 . Even Saudi Arabia which abstained when
the U .N . voted on the Declaration in December 1948, has now adopted the
Declaration through subsequent conduct in the U .N . In any case, religious
freedom may now be regarded as part of customary international law, and as
such, binding on all states regardless of treaty obligation . Several Muslim
countries, moreover, are parties to the International Covenant on Civil and
Political Rights of 1966, a legally binding treaty which guarantees religious
freedom .
55a This Declaration was adopted by the General Assembly of the U .N . on 18
January, 1982 . U .N . GAOR Supp . (No . 51), U .N . Doc . A/RES/36/55 (1982) .
56 Muslim states always had difficulty with the inclusion of the right to change one's
religion, even at the time when the Universal Declaration of Human Rights was
adopted in 1948 . See Nehemiah Robinson, The Universal Declaration of Human

The Islamic Law of Apostasy 223

Rights (Institute ofJewish Affairs, New York, 1958), 128-129 . The fact that they
have always had to concede and support the international instruments on this
point demonstrates the untenability of the Islamic traditional law of apostasy .
57 5 Mohamed 'Abduh and Mohamed Rabid Ridda, Tafsir Al-Manar, 327 ;
Mahmoud Shaltut, Al-Islam `Agidah Wa Shari'a 292-293 ; and Al-Saidi, supra
note 52 . See also Mohamed S . El-Awa, Punishment in Islam (American Trust
Publications, Indianapolis, 1982) pp. 49 et seq .
58 The argument advanced by some jurists and scholars that these Sunna cannot
abrogate Qur'anic rule against the death penalty for passive apostasy summarized
by Peters and Devries, supra note 40 at 14-15, is based on the false assumption
that there is such a Qur'anic rule against the death penalty . The verses used in
this argument (i .e . Qur'an chapter 4, verses 89-90 and chapter 2, verse 256) have
already been rules by Muslim jurisprudence to have been repealed or abrogated
(by Qur'an chapter 9, verse 5 and 29) .
59 See, for example, Qur'an Chapter 16, verse 125 and chapter 18, verse 29 .
60 Qur'an, chapter 9, verse 5, was in fact made the bases of legally binding
principles, thereby abrogating, from the legal point of view, all the verses of
ismah, i .e . freedom of choice . The concept of jihad, holy war to propagate the
faith, and the status of non-Muslims, based on the Qur'an chapter 9, verses 5 and
29, many Sunna, and the practice of the Prophet as well as the practice of leading
companions of the Prophet, are all inconsistent with freedom of religion .
61 Muslim jurists set out the so-called `ayat wa-'ahadith al-'ahkam, i .e . the verses and
Sunna of legal binding rules, in a class of their own . The rest of the Qur'an and
Sunna and other traditions are revered, and may be even observed in practice,
but only as moral and ethical standards and not as legally binding rules . In
relation to religious freedom, for example, it is generally regarded as advisable to
practise persuasion and peaceful means, but if they fail, then resort must be had
to compulsion and jihad.
62 The meaning of Qur'an chapter 2, verse 106, may be translated as follows :
`Whenever We (God) abrogate any verse or postpone it, We replace it with a
better verse or a similar one, do you not know that God is able to do everything?'
Ustadh Mahmoud cites this verse in support of his argument that abrogation is
merely enactment of the more appropriate verse of the Qur'an and the postpone-
ment of the inappropriate one until its time comes .
63 It is an article of faith for a Muslim to affirm that the whole of the Qur'an is the
literal and final revelation of God . Debate as to the meaning of the Qur'an and
the legal implications of its verses is legitimate ~tihad, i .e . exercise of rational
legalistic reasoning, open to all Moslems . Some Muslim jurists argue that only a
few highly qualified individuals may practise Ytihad . This may be true, but who is
qualified to certify others as competent mujtahds, i .e . competent to practise this
function? The competence to practise Ytihad is clearly related to the quality of the
end result, both of which, it is submitted, will have to be judged by Moslems at
large and should not be allowed to be monopolized by any institution or group of
people .
64 For a brief discussion of these wider implications of the work of Ustadh Mahmoud,
see El Naiem, `A Modern Approach to Human Rights in Islam : Foundations and
Implications for Africa', in Human Rights And Development in Africa, 75 (C .
Welch and R. Meltzer, eds, 1984) .
The Islamic Lard of Apostasy 224

ABDULLAHI AHMED AN-NA'IM was Head of the Department of


Public Law at the University of Khartoum . Since 1985, he has been
Visiting Professor at the School of Law, Univesity of California, Los
Angeles, lecturing in comparative and Islamic law .

School of Law, UCLA, Los Angeles, CA 90024, U .S.A .

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