ABSTRACT
Francis Deng (FD): This is a conversation with Ali Osman Yassin, the Minister of Justice, regarding the Sudan legal system, in light of the changes that have taken place since 1983 and particularly since 1989 and in the 1990s. We are talking about the Sudan legal system as a whole, and the role of customary law, which used to be administered in accordance with the Native Courts Ordinance, 1932 in the North, the Chiefs’ Courts Ordinance, 1931 in the South. Mr. Minister, could you give us an overview of the Sudan legal system today, and then we can get into some of the specifics. Ali Osman Yassin (AO): Thank you very much Dr. Francis. It’s really an
opportunity to see you again now, after the peace agreement. I am so happy. And I am sorry for the demise of our brother, Dr. John [Garang]. Hopefully, people will still implement the peace agreement strictly to the letter of every word in that agreement. Concerning the legal system in the Sudan, in the 1970s, Sudan, after so
many changes, in fact, established a legal system resulting in the respect for the rule of law and tried to codify, as much as possible, the covenants of human rights in certain matters. Sudan acceded to many human rights conventions, all of them or at least the majority of them. They became part and parcel of Sudanese law, the law of the land, and in our national legislation. You know, during Nimeiri’s regime [1969-1985], Nimeiri tried his best to
Islamize criminal law, through the penal code. The earlier penal code was changed as a result. All the Islamic hudud penalties were incorporated in the new code. In 1991, we, Government of National Salvation, decided to make some reforms in our laws, especially the Islamic provisions in certain laws prevailing at that time. We have done our best to delimit the scope of the crimes which were introduced by Nimeiri. The penal code of Nimeiri consists of 400 provisions. We thought it was a bit too much. So, we decided to shorten the code into about 185 provisions. By doing so, and I participated on that reform committee, we had in our minds that whenever you make the incriminating provisions short, more room for freedoms is made available to the people. That was the main idea behind our reform. For the hudud, we inserted only four or five provisions, and we made
an explanatory note, especially for the application of hudud, and exempted
non-Muslims, especially in the South, from those penalties. In civil law, we removed matters that were in contravention with Islam and Sharia. That was studied thoroughly by us and we found no conflict between that and the Civil Code and Commercial Law at large, except in very few cases, such as interest in the banking system, and things like that, debentures in the companies, bonds, very few things which in any case would never have entered the application of the law in the country at large. So, I would say that we could unify the laws for the practitioners without being affected by their beliefs, or freedoms of belief or other freedoms or fundamental rights. Having done that, every year, more changes took place in the Salvation
Government program. The Salvation Revolution Command Council was dissolved. The President first appointed members for the parliament and then Parliament was elected. Time passed and more freedoms were given and are still being given. These changes definitely influenced our legislation very much indeed. In time, we decided that we needed to sense the views of the people. Since then, the wishes and the will of the people have been largely considered. The President was always talking about the rule of law. But the rule of law means that the machinery should work, the law-enforcing agency should do their job well, no extrajudicial decisions, everything should be within the machinery of the law. And we, here in this Ministry, did our best to pull back the Government, whenever they tried to inflate here or there, or to do something outrageous. Of course, basically, in areas like security laws we grumbled about them, and we did our best to change them through the parliament. Now, detention without warrant, detention without lawful excuse, has been lessened to a large degree. At least theoretically, we have introduced provisions to curtail security agents from doing such things. And as a follow-up under the supervision of the judiciary, arbitrary arrest has been prohibited and here we are monitoring that. So, the core point here is that this country should be fair and just and that
requires that for everything we have to have a law. And we did our best to remove the mischievous things in the law, and to help the courts to apply certain provisions by the spirit of the law in order to create for us some precedents to follow and to fill the gaps which we could not do by legislation and codification. And we have done well with Hafiz al Shaikh when he came to be Chief Justice and Obeid before him. Now with Jallal, we are also trying to help him by giving him some ideas that the judges should follow. They should come to us, and request us to go to the legislature and tell them that these are court decisions; we have to adopt them. Of course, we have to do so in a very subtle manner, so that we do not draw the attention of the executive to what we have done as lawyers. For the codification, we have a law reform, conducted by a standing com-
mittee here. From time to time, we suggest a few amendments to the law, whether private or public law. Lawyers’ law has been given room for the reform. They welcome the idea of introducing a few things.
