ABSTRACT
Francis Deng (FD): Well, Molanas, the two Honorable Judges, I am delighted I have this chance to talk to you both on certain issues. Could you first please briefly introduce yourselves in terms of your name and what you are doing now? Ambrose Riiny Thiik (AR): My name is Ambrose Riiny Thiik. Currently, I
am the Chief Justice of what we, until now, still call the New Sudan, comprising, of course, of Southern Sudan, Nuba Mountains and Southern Blue Nile. I am also President of the Court of Appeals, the highest court in the New Sudan. Chan Reec Madut (CR): My name is Chan Reec Madut. I am a judge. I
work for the Sudan Judiciary as a Court of Appeals Judge here in Khartoum. A couple of years ago, I was a human rights officer at UNICEF. Now, I am back in the Judiciary, in Khartoum. FD: Molana Chan, can we begin with you because, before we go to the
South, we want to have a broad overview of the Sudan legal system. At our time, in the olden days, we had the common law system, the Sharia system and the customary law system. You could say it was a three-tier system. The system was also divided into civil law, which comprised the common law and the customary law, and the Sharia branch. Could you give us an overview of the situation today? CR: I think what we have right now is a mishmash of Sharia and the
common law system. Of course, the main thrust is on Islamic law, because of the political developments in this country in the past few years. But the whole legal heritage is still there. Common law is still applicable in the form of precedents. Otherwise, the leadership is gearing the law towards the Islamic system. And so, officially, the thrust is the Islamic system, but there is plenty of the common law within the same system. FD: Could you give us the court hierarchy, the process by which decisions
of the courts are made, and where appeals go? CR: At the top, you have the Supreme Court, then the Courts of Appeal,
and then the General Courts, which previously used to be called Province Courts. Then below the Province Court are the District Courts. Below the District Courts are what they call Town and Rural Courts. The Supreme
Court has branches in Khartoum, Port Sudan, and Madeni. For each of the twenty-six states of Sudan, you have a Court of Appeal. And the Province Courts are the General Courts within the states. District Courts are divided into three: District Courts of first grade, second grade, and third grade. FD: Is the first higher than the second? CR: Yes, the first is higher. Below this you have the Town and Rural
Courts. These are established by the decree of the Chief Justice and I think they are a kind of replacement for what used to be called Native Courts, or Town Bench Courts. The Chief Justice has the power to set up town and rural courts. He has the power under the Judiciary Act to set up these courts in terms of numbers, substantive jurisdiction, and geographical jurisdiction as well. These are the ones that take care of legal disputes in the villages and in the towns. This applies mostly to Northern Sudan. As far as the South is concerned, it is restricted to what used to be called garrison towns. Beyond that, the system is under the SPLM administration. FD: And what law do these lower courts apply? CR: The lower courts apply mostly custom, subject to the requirement that
a custom should not contradict Sharia. This is the basic situation. Most of the natives in Northern Sudan are Muslims, and most of their customs are Islamic. They are not so distinctive or so distinct like the customs in the South. And if those customs are contradictory to Islamic law they will be scrapped because they are contrary to Sharia. Even in the South, by the way, the regulations for Rural and Town Courts stipulate the same condition, that custom should not contradict Sharia law. It also should not be contrary to justice, equity, and good conscience. This is in addition to the requirement that customs should not contradict Islamic law. FD: Could you describe the institutions of the legal system, the role of
the Minister of Justice, the Chief Justice, the Bar Association, and other organs? CR: The Minister of Justice is part of the Executive organ of the Govern-
ment and it is manned by legal advisors to the Government. Their main task is to prosecute cases before the courts. The Ministry of Justice has nothing to do with the judiciary. The judiciary is mainly for the adjudication of cases and is under the Chief Justice. It is an independent institution. The advocates form an independent institution for private practice. They are lawyers who defend individuals or corporations in cases against the Government or against others. Of course, the qualification for lawyers in both the Ministry of Justice and the Judiciary is the same. You have to have a law degree, a Bachelors degree, and you must pass what they call a professional or bar examination. The bar examination qualifies you to be recruited into the judiciary as a magistrate or to the Ministry of Justice as a legal advisor, or to the bar to practice as an advocate, provided you practice under a licensed advocate for some time. FD: What is the substance of legal education these days? Is it common law,
Islamic law, or a mix?
