Reform family Muslim & customary laws in Sudan
2. Legal reforms and development Sound legal frameworks are prerequisites for economic growth and social development. The process through which laws and regulations are conceptualized, drafted, enacted, publicized and enforced is the foundation of a society governed by the rule of law. Legal reform is an ongoing and incremental process that involves the executive and legislative branches, law reform commissions, non-governmental organizations, and the public. For most countries, legal reforms address new international standards, responds to social and economic issues, expands access to justice or improves court operations. Effective and coherent legal reform requires a comprehensive and sustainable approach that avoids importing “model” inconsistent with national legal and socioeconomic norms. Effective legal reform also promotes opportunity, security, and empowerment for the world's poor. 3. Legal reform: gender equality and development: The laws and customs practised in any given society depend on historical experience, structural of power and culture specificity. But all too frequently, women are made to believe that these laws are natural and therefore immutable. Women rarely have information concerning statutory laws or the sources of either formal or informal laws governing their lives. Internalized customs and attitudes combine with external pressures as a barrier to women activism and self-realization. 4. Women, law and development: During the last two decades, improving women's legal rights has become a priority for women organizations in most of the countries of the world. The movement for women's legal rights created a lot of debate around the role of law in establishing women's status. According to legal sociologists, Nader and Todd: Law has many functions. It serves to educate, to punish, to protect private and public interests….to distribute scarce resources, to maintain the status quo, to maintain class systems, and to cut across them, to integrate and disintegrate societies- all these things in different places, at different times, with different weightings….Law may be a cause of crime; it plays, by virtue of its discretionary power, the role of the definer of crime. It may encourage or discourage respect for itself. (Nader and Todd, 1978)(1) Unjust laws that are discriminatory and limits the scope of women rights Prejudicial enforcement of the law favourable to women by police or gender-biased judges or courts. Ignorance of the law and law-making processes by women who tend to be unaware of their legal status, of the rights they do possess, on the effect of the law have on them, or the role they might play in changing the law. Ignorance of the law and law-making processes by women who tend to be unaware of their legal status, of the rights they do possess, on the effect of the law have on them, or the role they might play in changing the law. 5. Legal reform: family and customary laws
Many experts have identified retrograde societal practices as a major obstacle to the economic and social development in the region. Family laws and personal status laws are not secondary matter but are a core of the community's life. They govern basic issues, such as whom an individual may marry, at what age, at what behest, whether or not an unhappy marriage can be terminated; by whom and under what circumstances, whether one will have access to one's children following divorce; be permitted to seek education and work; be sovereign over one's own person and movements; be entitled to full citizenship with rights and responsibilities, and have redress against violence and injustice. 6. Fundamental issues in family and customary law reform for women in Sudan:
Before examining the proposed reforms in family and customary laws, I would like to stress and emphasis the following fundamental points and issues. The first point to stress is that legal reform in the field of family and customary law must be combined with a change in the policy framework for women empowerment in Sudan. It is important to note that successive Sudanese governments failed to provide a strong policy framework for the empowerment of Sudanese women or to properly recognizing gender issue including gender concerns in laws and legislations. Legal reforms must be combined with a change of policy in the field of education and health. 7. Overview of the legal status of Sudanese women:
The following are a critical summary of the main features of the legal status of the Sudanese women with a special focus of women status under the family Muslim laws and customary laws. (i) Sources of law:
Historically speaking after 1898, three legal systems were applied in Sudan:
1. Common law applied to civil transactions
2. Sharia law governed personal matters of Muslims
3. Customary law govern other religious and cultural groups especially in the south (a) Constitution rights:
Historically speaking since independence in 1956, Sudan has witnessed five constitutions;
1. The Sudan constitution 1956
2. The transitional constitution of the Republic of Sudan, 1964
3. The permanent constitution of the Sudan, 1973
4. The transitional constitution 1985
5. The constitution of the Sudan, 1998
6. The national interim constitution 2005 Despite the provision of equality and non-discrimination in the different Sudanese constitutions including the national interim constitution 2005, all the Sudanese constitutions contain a sting in their nails as far as women are concerned. This comes in the form of the statement that sharia and customs are the main sources of legislation (Article 5 of the national interim constitution) so women are subjected to the personal laws of their own communities and personal law is the area which affects women most significantly, touching on issues such as rights to property and inheritance, maintenance, divorce, child custody and polygamy. It is as if the constitution says to women (we grant you equality, but if religion says otherwise, we cannot interfere). Sudanese women have legal equality with men, however, in terms of religious and customary laws some are protective for women others are deeply affected by patriarchal ideologies and attitudinal practices that have effect in women status (Badri and Elbaggi). This is illustrated by the judicial president published in the Sudanese Law Journal reports 1980, case (Cass/109/1980), where the respondent instituted a first instance suit before the Khartoum divisional court against the appellant lawful wife, and was obedient to him and accordingly entitled to martial maintenance, which maintenance he refrained from giving as from 10 October 1967 after hearing the case the high court ruled the following:
1. A professional wife who refuses to accede to her husband's demand to leave her work is not entitled to martial maintenance, even where the continuance in her work has been an express condition for her marriage contract, or where the husband has otherwise agreed to it; as it is a condition that contradicts the essence of the contract, to wit her presence and habitation in the matrimonial home. The husband accordingly can retreat from such condition or consent at any time.
2. It is incumbent upon the court to investigate and specify the date of the wife's refusal to abide by the order of her to leave or stop her work, for upon the date of her “Nushoz” depend her entitlement or non-entitlement to maintenance. (Sudan Law Journal and Report, 1980) (b) Rights of women under the Muslim personal law Act 1991:
Thee is no controversy on the role of the family legislation and the role it plays in the development of women and its impact on the other rights of women especially rights of women outside home including the rights of women to work and participate in public life. The personal Muslim law act provides for the matrimonial rights and duties in section 52 while during marriage contract the wife is required to obey her husband and to care for him by protecting herself, his property. In return, she has the rights to maintain and permission to visit her parents and relatives, good and fair treatment, equal treatment of women in a polygamous marriage, section 73 provides that a wife can be declared (nashiz) disobedient in the following cases:
1. Leaving the matrimonial house without legal justification
2. Working outside house without the husband permission & approval
3. Refusing to travel with the husband without legal justifications (c) Status of women under the customary laws: Sudan has a dual legal system. There is a general system of statute law and customary laws that apply in personal law matters to some ethnic groups. The different ethnic communities of Sudan have different customary laws. Hence there is no single customary law that pervades the entire country and this notwithstanding many similarities in the various customary laws. These similarities are both in the content and the spirit of the law. Customary laws are largely written and un-codified, but since the colonial time native, customary courts were established in different parts of the country to enforce the customary law of each area. Sudan is a spacious country and discussing the issue of customary law in the entire country is beyond the scope of the paper. Here I will try to limit my discussion on family law aspects of customary law in South Sudan. South Sudanese customary law systems reflect the customs, practices and beliefs of the various tribes, which develop and use those laws. Notwithstanding a large number of tribes (over fifty), their disparate origins and practices, the bodies of law which each use have considerable similarities. An examination of the few, which have been reduced to writing, show that the respective bodies of law are broadly divided up into four functional areas, best illustrated in John Makec's definitive account, the customary law of Dinka people of southern Sudan: family law, land law, law of obligation, procedures (6). Here are some brief accounts of the main principle in the customary family law: There are a number of reasons given for the institution of bridewealth'. John Wuol Makec lays out the most cogent in his book as;
a) Compensation to the relatives of the girl or woman who have brought her up at expense to them and reimbursement of the expenses the family incurred at the marriage of her mother.
b) Consideration for the services the bride will render to her husband and relatives and children she will bear.
c) Bridewealth brings stability to the marriage since the parents and relatives acquire economic benefits through such payment. The Dinka go further to stabilize the relationship by requiring the bride's family to conduct a reverse payment in kind called arueth.
d) The institution of bridewealth involves an element of prestige for the spouses as well as relatives. 8. Proposed reforms in the area of personal Muslim act 1991: The following proposals are not meant to be either prescriptive or an exhaustive record of all needed reforms in Muslim personal law, rather it is an attempt to identify some major areas for reform which I consider most significant for women personal advancement and their quality of life. (i) Minimum marriage age: In Sudan, young women and girls are in particular physical and psychological risk form early marriages. Setting a reasonable, not too low, minimum marriage age for both partners and especially for a female is important for a number of reasons. Reform in the current personal Muslim law act is very much needed in order to ensure that child marriage does not take place and specifically to ensure women sufficient access to education and o protect the women rights choose marriage partner and to give consent to the marriage. SomeMuslim countries have dealt with minimum marriage age. For example, in Jordan: a royal decree in 2001 rose the minimum marriage age from 16 for males and 15 for females to 18 for both genders. (ii) Guardian permission for women and women consent: Reform the Muslim personal law act is needed in order to secure the right of women to choose their own spouse and to ensure that they are neither obliged to accept arranged marriages or forced into marriages nor prevented from entering marriages they have chosen. The reform is also needed to into with grant women equal rights men, enabling women to be considered their own guardians and to be able to contract a marriage contract on their own. Again this is a natural extension of Hanafi fiqh. Thus Pakistan guarantees women the right to contract their own marriage without the consent of Wali. Jiba is illegal. Again, Algeria forbids Wali to force marriage (article 13) or give a woman in marriage without her consent. He also may not prevent her from marrying. (iii) Polygamy: Some reforms should be introduced to the family law act in order to ban the practice of polygamy or to restrict the practice of polygamy at least to reduce the detrimental effect on the wife, the children and the institution of the family. The most common conditions that countries that restrict polygamy place on the practice are the following:
a) The prior wife or wives must be informed of the man's intention to marry an additional wife.
b) The prior wife or wives must consent
c) The husband must prove polygamous marriage to be ‘just and necessary' (clearly mentioned grounds for this include a wife who is sterile, physically unfit or a conjugal relation, insane, or physically infirm or a wife who refuses sexual relation. The condition that a second marriage is ‘just and necessary' could be a potent tool for regulation, but its ambiguity is a cause of concern because it could also be used on the slightest grounds. In many cases, the wife's failure to produce a male heir may be a sufficient ground for granting permission for polygamy (Bangladesh, Pakistan)
d) The husband must guarantee to act in regard to all of his wives and children. (iv) Right to divorce: Some reforms need to be introduced to the Muslim personal law act 1991 to be the unilateral right of divorce in order to ensure that men do not divorce their wives without cause, without even informing them, without specific reasons and attempt of mediation and without judicial oversight and to enable women as well as men, to obtain a divorce under comparable grounds and with the comparable procedure and to make financial accommodation for women in event of divorce. (V) Disobedience, female employment and right to work: Over the last decades' employment of women in Sudan has risen significantly. Yet despite this, the current family law restricts women rights to work. The concept of obedience on the part of the wives is often used by husbands to limit women ability to find work outside the home, and the husband owes the wife maintenance to be obedient to him. (Vi) Some proposed strategies for reforms in the area of customary laws: From the above review, it is clear that there are huge inequalities in respect of women status and should be addressed. Customary law has its own unique nature and change, and reform in the field of customary law must come at a scope and space that society can adapt without serious internal conflicts at the community and family level. The basic premise is that ‘change must come from within'. It is difficult to come with concrete proposals for reform in the customary laws but some strategies may include:
a) Intensive campaign to initiate a dialogue about the issue aimed at particular stakeholders; chiefs, community leaders, women, local government officials;
b) Awareness of the issue of an adverse effect of customary rules on women;
c) Involvement of women in the discussion of customary law issue;
d) Harmonization between statutory law and customary laws;
e) To outlaw customary law which have obvious harm on women physical health or wellbeing. 9. Conclusion and recommendations: Legal reform is primary importance in creating a democratic and lawful society in Sudan and to contribute to long-standing, structural conflict prevention by removing and reducing the major source of conflict and enhance gender equality especially promoting the role and participation of women. The Muslim personal law act 1991 and the customary laws as applied in Sudan have systematically undermined women's position in marriage by creating unfair conditions regarding men and disadvantage women. Legal reform is a process and cannot be done overnight. It is important that women groups and the general public do not have unrealistic high expectations of what can be achieved. The following are some recommendations;
a) The challenge before us now is how to create, set and form a legal reform review committee to identify precisely the nature of deficiencies in the legal system and legislations and to formulate specific, well-grounded proposals for improvement and reform in all different fields including family and customary laws and to recommend methods for reform in this area.
b) Legal reform especially for women requires political will by both political elites and legal bureaucracies, and sufficient public pressure to make and enforce actual change. Where political will for reform is promising but still relatively weak the advocates for reform will need to pursue constituency and coalition-building strategies. This major's responsibility for Sudanese women organizations and advocacy groups.
c) Constitution of women and women's groups in drafting new family laws and customary laws based on the principles of justice and equality is of high importance.
d) It is important to establish a parliamentary committee to hold public hearings throughout the country so that the voices of ordinary citizens can be heard and reflected in a law that governs their personal lives.
e) Reforms in the field of women rights especially family laws necessities the need to respect universal human rights, especially provisions on rights of women in marriage and family, and to explore alternative interpretations of the Islamic law that uphold gender equality and universal human rights.
f) The argument that Islamic laws cannot be changed does not appear to be based on sound logic. A number of Muslims majority countries like Morocco, Tunisia, Syria, Turkey and Iran took up measures to prohibit polygamy and to improve women's status in the family which shows that there is enough scope for the transformation of Muslim personal law.
g) Legal reform in the family Muslim law has to find a way to deal with the huge challenges and resistance for such change, especially Muslim groups who consider the personal law to be an essential part of their religion and stand therefore for status quo. They argue that no one is competent to change or amend the explicit provisions of the Quran, which is divine.
h) There is a huge need to encourage and support research and studies in the area of customary laws and Muslim personal laws especially which impact on women lives and gender equality.
i) Provisions for women equality in the national interim constitution and comprehensive peace agreement need to be respected and implemented. Bibliography
1. Nader, L& Todd, H.F.Jr. (1978). The Disputing Process Law In Ten Societies, New York, Columbia University Press.
2. Mill, J.S.(1971) On Liberty, Representative Government, The Subjection Of Women: Three Essays by John Stuart Mill, London: Oxford University Press.
3. Margaret, Schuler &Sakunlala–Rajasingham, ‘Legal Literacy, A Tool For Women's Empowerment' (1992) in Legal Literacy, A Tool For Women's Empowerment, New York, USA.
4. Sheikh El-Din, Dina (1990). ‘Legal Status Of Muslim Women in Sudan,' Journal of East African Research and Development, 1990
5. Sudanese Personal Muslim Act 1991
6. Wuol Makec, John. The Customary Law Of The Dinka People of Sudan. Afroworld Publishing Co. 1988
2020-12-02 | News | English | SudanTribune