ABSTRACT
Francis Deng (FD): This is a conversation with Dr. Amin Mekki Medani and Omar El Farouk Shoumena, both lawyers, conducted in Khartoum in August, 2005, about the state of the law in the country today. Could you give a general overview of the sources of the law in the country today? Omar El Farouk Shoumena (OS): In the area of commercial law we have
the Companies Act, the Bankruptcy Act, and the Business Exchange Act. These basic commercial laws are still based on the common law system. We have the Land Registration Act as enacted by the British. The bulk of the laws applicable today are really common law. But at the same time, we have some provisions in the Civil Code which are in conflict with these laws. The Civil Code which was introduced by Nimeiri touches on other parts of the law, for example, Law of Contract, Law of Torts, Law of Agency. The three codes which were prepared by Zaki Mustafa, the Contract Act, the Sale of Goods Act, the Agency Act, were reviewed and left to the civil courts. That’s a general view with regard to the civil law. So, you can say that there is a sort of uncertainty about what system of law is applicable in the Sudan. With regard to the Sharia law, of course, Sharia is all there as it is. Areas
like family law are governed by Sharia for the North. And then there is the Social Justice Act, which makes it mandatory for the courts to apply Sharia as a last resort when investigating applicable law. This is creating confusion, because most of the judges in the judiciary are Sharia judges and they tend not to recognize legislative law. They argue that they are bound by Sharia concepts. They are creating havoc. In many instances, this was corrected by the constitutional court. So, there is some sort of havoc with regard to the system of law which is
applicable in Sudan. You have, of course, the penal code which is still the penal code of 1929. What was introduced in criminal law were the hudud Sharia punishments only. I personally believe what is now being practiced is a form of tansiq, which means that you take from various systems of law and harmonize or reconcile them into a rule of law. Tansiq is a concept of law which is being followed in Sudan. Take, for instance, murder, which is a crime in the penal code of 1929. That code does not care a damn about what Islamic jurisprudence says about murder. On the other hand, Sharia judges
don’t recognize the penal code, which is based on the Indian penal code. Instead, they are applying their own Sharia concept. That’s why, oftentimes, their judgments are reversed on appeals. With regard to the native courts, I believe the Native Administration was dissolved in the North. And we have no Native or Sheikh courts. FD: In Abyei, as in the South, initially the Native Administration was not
dissolved. Nimeiri later decided to dissolve it while on a visit to the area because he got offended. But when the Dinka later demanded its restoration and I interceded on their behalf with Dr. Jaafar Mohamed Ali Bekheit, chieftainship was eventually restored. This was later extended to the Missiriya as well. But then I thought this regime has reinstated all the chiefs in the North as Amirs. OS: That is for administrative purposes only; they have no judicial powers. FD: So what exists in tribal areas? OS: I don’t think customary law is being developed any more. On the
contrary, it is being abandoned. If you have no courts applying customary law, then you have no customary law. FD: So, customary courts have all been abolished? OS: You have no Native courts any more. Amin Mekki Medani (AM): Native Administration was abolished since the
time of Nimeiri. FD: I think it was reinstated. OS: No, it wasn’t. One of the main problems of the Darfur crisis is the fact
that Native Administration was abolished. Settlement of disputes at the local level just dissipated. FD: In the North now, the administration of justice in the tribes, what is
governing it? AM: There are courts of first class, second class, and third class. Of course
you have the informal system of ajaweed adjudication and settlement of cases out of court. The elders will do it, but you don’t have any formal means of executing their judgments. FD: Judging from what I know about the administration of justice in
Abyei, there are local courts. OS: I don’t know about Abyei, but I am speaking about the North. FD: There are three courts in Abyei. Instead of one Chiefs’ court, they
established three courts in the area to administer the customary laws of the people. Is this unique to Abyei? OS: Yes. FD: In the Missiriya area, the son of Babo Nimir was appointed amir. OS: There are amirs, but this is for administration purposes only, not for
adjudication. FD: So, they don’t see cases? OS: No, they don’t. They are there only for administration purposes, not
for judicial functions as used to be the case years ago. FD: What are the institutions or structures of the legal system?
