CNN correspondent Neemat el-Baqer asked al-Samani al-Hadi — the brother of Mary, the Sudanese women accused of apostasy — what it was that he wanted. He replied by saying that he wanted Mary either to repent and return to her family and her religion, or suffer punishment, since in his opinion the implementation of Sharia prevails over personal feelings. He was referring to Article 126 of the Sudanese Criminal Code of 1991, which provides for the death penalty for any person found guilty of apostasy.
However, Imam al-Sadiq al-Mahdi, a prominent politician and a Muslim intellectual leading one of the largest religious sects in the country, has a different opinion. He intervened to call for the need to freeze and review Article 126. He relied on the fact that even if this punishment is based on the sayings of the Prophet Muhammad (“Whoever changes his religion, kill him”) and on a consensus reached by the majority of scholars, there is no text in the Quran on the earthly punishment for apostasy.
Indeed, some verses prohibit this punishment, such as “There is no compulsion in religion” or “Had your Lord pleased, all the people on Earth would have believed in Him, without exception. So will you compel people to become believers?” Mahdi added that it was better to promulgate laws based on legitimate purposes promoting freedom, indicating that there were large groups of Muslims living as minorities in non-Muslim societies and they need freedom of belief to be consecrated to practice their religious rituals.
The controversy about Sharia and its implementation method in Sudan is nothing new. It took on clear political dimensions, especially at the end of the era of former President Jaafar Nimeiri (1969-1985). He had announced the implementation of Islamic law to face a growing opposition to his ruling approach. This announcement led to an escalation of strikes, even by the judges, since it was considered a direct reaction against them for having defied him. The political dimension grew more obvious when Mahmoud Mohamed Taha, leader of the Republican Party, was accused of apostasy. Taha believed that Muslims should interpret Islam in a modern manner. This is why he criticized Nimeiri’s approach of the implementation of Sharia and his focus on punishment before justice. This led Nimeiri to arrest him and execute him in 1985. Nimeiri’s Islamic policies fueled the civil war that had erupted two years earlier and gave it a religious dimension.
The issue of Sharia and its implementation became the subject of political one-upmanship following the fall of Nimeiri. Mahdi, who took power after the collapse of the Nimeiri experiment, believed the laws issued by Nimeiri, allegedly based on Sharia, were not worth the price of the ink they were written in. However, Islamist groups who rallied later under the banner of the National Islamic Front (NIF) clung to those laws that they saw as a way out, since they were the last political force allied with Nimeiri, even though the latter did not resort to Dr. Hassan al-Turabi, leader of these groups, who had been his adviser at the time of issuance of those laws.
Mahdi, who, along with his ally Mohamed Osman Mirghani — another religious leader — had a majority in parliament, managed to pass a resolution to freeze the effect of those laws until an agreement was reached on an alternative. National Islamic Front (NIF) members of parliament counterattacked. They submitted a proposal for the execution of punishments in all cases in which all litigation stages had been completed and which were pending execution. The government, with its parliamentary majority, was able to defeat this proposal, which clearly aimed at embarrassing Mahdi and Mirghani before their Islam-orientated public.
At the time, the Mahdi government strived to attract the southern Sudan rebels, led by John Garang, into the country to conclude a peace agreement with them. Then a government delegation visited Garang to inform him that the proposal for the implementation of punishments was rejected and that this was a step toward the rebels, whose demands included the re-examination of Sharia-based laws. Garang surprised the delegation by saying that the parliament, the highest legislative authority in the country, should have amended these laws if it deemed that they were inappropriate and not only just freeze them.
The coalition government headed by Mahdi remained in power until 1989, when the NIF, then led by Brig. Gen. Omar al-Bashir, staged a coup. The real instigator, however, was Turabi, who dominated the political scene for a decade until the division in 1999. Bashir was not content in the role of a subordinate and believed Turabi had an ambition to impose his total domination over the regime, which led to Bashir’s exclusion and to several arrests.
Two years after the ascent of Islamists to power, they declared the application of Islamic Sharia to give legitimacy to the new regime. They issued the Criminal Code of 1991, on the basis of which Mary is now being prosecuted for apostasy.
In that period, Turabi was the actual power who ran the country from his home in the luxurious suburb of Mansheya in Khartoum.
Article 126 states that “whoever propagates the renunciation of Islam or publicly renounces it by explicit words or an act of definitive indication is said to commit the offence of Riddah (apostasy); whoever commits apostasy shall be asked to repent within a period decided by the court; if he insists on his apostasy he shall be punished with death; punishment for apostasy lapses if the apostate refrains from apostasy before execution.”
Numerous observers of Sudanese political affairs noted that while Turabi had turned a blind eye to the trial of Mahmoud Mohamed Taha at the end of Nimeiri’s reign and did not raise an objection to the criminal code — including an article on apostasy — upon its promulgation at the beginning of the salvation era, after being ousted from power he became an advocate for freedoms and for fighting compulsory imposition of Islam, as he mentioned in a seminar he held in Doha three years ago.
Recently, President Bashir announced a comprehensive national dialogue that did not exclude any of the political forces, even armed forces. Turabi and his GPC party [General People's Congress] were the most welcoming of Bashir’s invitation. Some even said the objective of this dialogue was to bring Islamists together and unite them again, or to gather Ahl Al-Qiblah, i.e., parties of Islamist orientations, such as the Ummah Party led by Mahdi and the Democratic Unionist Party (DUP) led by Mirghani. Apparently, regional developments and the targeting of political Islamic movements pushed Sudan’s Islamists to converge. In this atmosphere, the issue of Mary emerged. All political forces expressed their opinion except for Turabi, who remained silent. It was a silence interpreted by his opponents as rapprochement with the current regime, which indicates that he is dealing with the Sharia subject in a political way.
Sharia versus self-determination
The ascent of Bashir and the Islamists to power was a manifestation of a new balance of political forces in Sudan. These forces were Islamists led by the NIF under Turabi's command on one hand, and the left-wing and secular forces supported by Sudan People's Liberation Army (SPLA) and led by Garang on the other. These two forces became the drivers of political action in the country. In light of their inability to land a knockout blow to the other party, they reached a peace agreement in 2005 under the support of the international community, led by the United States.
The agreement was based on a basic trade-off: North Sudan gets to preserve Sharia rule while South Sudan would be exempted from it and would enjoy the right of self-determination after six years, during which power and wealth would be shared between the government and southern rebels. However, despite the fact that the agreement gave priority to unity, southerners voted to secede from Sudan and establish an independent state in 2011.
Recently, right before the southerners exercised their right to self-determination, the government deployed feverish efforts to push the SPLA to formally adopt the unity option. The incentives they were offered included restricting Sharia rule to personal status matters and only in practical terms, while preserving it as a symbol of the regime’s legitimacy. Southerners, who have had old desires for secession, decided instead to go ahead and establish their independent state.
Sudan’s political experience led Sharia [rule] to face a tough test, given the presence of non-Muslims in the population. This raised the issue of equality between citizens of one country but of different religions. Moreover, the political conflict took a violent turn. It highlighted ethical aspects of the practices of power, raising the Islamic slogan in terms of freedoms and human rights, etc. Ultimately, the conflict found its way to international organizations and a UN special rapporteur on human rights was appointed in Sudan. The matter got to the point where Bashir was charged by the International Criminal Court, becoming the first president in power to face this situation. However, the most valuable aspect of the Sudanese experience is the fact that it applied the slogan in practice. This demonstrated clearly that the proposal that “Islam is the solution” involves numerous simplistic flaws and cannot face the complexities of the political, economic and social situation. More importantly, spreading freedom is the proper approach to collecting opinions and implementing policies that are based on consensus rather than on unilateral superior imposition by force of power. It is also the right approach to address the issue of Sharia.
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