Book 9789004357082 B9789004357082 007-Preview

chapter 6
Alcohol Consumption (shurb al-khamr)
Alcohol consumption and, by extension, dealing in alcohol are, respectively,

the two (ḥadd) crimes that have a special position in the Islamization of
penal law in the Sudan. It should be noted here that no other ḥadd crime
introduced in 1983 and reconfirmed in 1991 has been punished more widely and
has affected more people. Based on reports, we can safely assume that many
thousands of Sudanese were lashed or imprisoned for either consuming or
selling alcohol, or for other alcohol-related offenses. The numerous campaigns
against alcohol illustrate the importance the Sudanese regime attributes to the
eradication of brewing, drinking, and selling alcohol. For example, during one
of these campaigns in June 1994, over a period of sixteen days 657 people were
charged with alcohol-related offenses. In Khartoum and its adjacent refugee
camps many displaced Southern women make a living by brewing and selling
alcohol. According to Article 79 of the Criminal Act of 1991, non-Muslims who
deal in alcohol are not subject to flogging, but to a prison term not exceeding
one year, or a fine. However, there are many reports that Southern refugee
women were given 40 lashes for brewing alcohol.1 In other words, they received
the same number of lashes due to Muslims convicted for the consumption
of alcohol. Human rights reports document the fact that the punishment of
flogging for alcohol consumption is often used to intimidate critics of the
Islamic regime.2
Definition and Punishment of Alcohol Consumption in the fiqh
The consumption of intoxicants was forbidden in the Qurʾān gradually, but no

punishment was given for it.3 Qurʾānic terminology only refers to strong alco-
holic drinks.4 The majority of Islamic jurisprudents use qiyās to interpret the
meaning of khamr to represent every intoxicant (muskir), including alcoholic
drinks other than wine, opiates, narcotics, and other drugs. Their punishability
1 See, for example, Amnesty International, Sudan, 43–45.

2 Ibid., 43.
3 El Baradie, Gottes-Recht und Menschen-Recht, 122; Enes Karic, “Intoxicants,” Encyclopaedia of
the Qurʾān (Leiden: Brill, 2002), 556–557.
4 For example, sakar, sukāra, rahīq, khamr, etc. See Karic, “Intoxicants,” 556.
© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_007

232 chapter 6
is based on the sunna of the Prophet, according to which drinking intoxicants

was to be punished by flogging.
The fiqh, however, is split into two schools of thought with regard to the
punishability of the consumption of alcoholic beverages. Both outlaw the
drinking of wine made of grapes (shurb al-khamr al-mustakhraja min al-ʿinab),
whether it is drunk in small or large quantities, and regardless of whether
it causes drunkenness. They do, however, differ on the matter of drinking
intoxicating drinks other than wine.5 According to the majority opinion of the
fuqahāʾ, the consumption of any and all intoxicants is punishable by a ḥadd
punishment. In the Shāfiʿī school and the majority opinion of the Ḥanbalī
school, the punishment for a free person is 40 lashes; according to the Mālikīs,
it is 80 lashes. The Ḥanafīs differ. As in the three other schools, drinking wine is
completely forbidden and punishable by 80 lashes for the free person. However,
in contrast to the other schools, drinking alcoholic beverages other than wine is
only punishable if one becomes drunk.6 With regard to the difference between
just drinking alcoholic beverages and becoming drunk by them, Abū Ḥanīfa is
of the opinion that a punishable state of drunkenness occurs when the drinker
has reached a state that prevents him from being able “to distinguish a man
from a woman and the sky from the earth.”7 In other words, merely being tipsy
would not qualify the drinker for a ḥadd penalty; rather punishability requires
a state of delirium or complete intoxication.
According to the fuqahāʾ, in order to be punished, those who drink wine
and/or intoxicants must be sane (ʿāqil) and adult (bāligh), those who are
insane or minors, as in the rest of Islamic criminal law, are not held criminally
responsible. Further, according to the great majority of jurists, the culprit must
be a Muslim. Dhimmīs and the mustaʾmin will not be punished as long as they
do not cause a public nuisance, because alcohol consumption is not punishable
in Christianity or Judaism.8 A public nuisance caused by the dhimmī or the
mustaʾmin who is in a state of intoxication only leads to a taʿzīr punishment,
not to the ḥadd. In order to entail the ḥadd, the drinking must be voluntary,
not under duress or out of necessity (ḍarūra).
Finally, in order to be punished by a ḥadd punishment, the culprit’s criminal
intention must be established. Thus, someone who does not know that he is
drinking wine or who does not know that drinking wine or becoming drunk on
other alcoholic beverages is forbidden in the sharīʿa is not subject to the ḥadd.
5 Ibid., 556–557.
6 Peters, Crime and Punishment, 64; El Baradie, Gottes-Recht und Menschen-Recht, 122.
7 Bahnasī, al-Jarāʾim, 187.
8 Ibid., 189–190.

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chapter 6

Alcohol Consumption (shurb al-khamr)

Alcohol consumption and, by extension, dealing in alcohol are, respectively,

Definition and Punishment of Alcohol Consumption in the fiqh

The consumption of intoxicants was forbidden in the Qurʾān gradually, but no

1 See, for example, Amnesty International, Sudan, 43–45.

© koninklijke brill nv, leiden, 2018 | doi: 10.1163/9789004357082_007

is based on the sunna of the Prophet, according to which drinking intoxicants

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