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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 .
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
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
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
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 .
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
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 .
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
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