Sudan, Republic of the


*Please note this is just a draft and all contents are still under revision.*


Legal Table
Legal Text

Legal System/History

Legal system based on English common law and Islamic law. Under Egyptian-Ottoman rule from 1822. After opening of Suez Canal in 1869, European interest in region increased; British appointed governor of Egyptian Sudan in 1873. After defeat of Mahdist revolt, British and Egyptians shared sovereignty in Condominium period from 1899. Agreement to allow for three year transition period to independence in 1953 led to self-rule in 1956. Civil war between North and South continues to plague Sudan. Following the military coup of 30th June 1989, the Revolutionary Command Council imposed Islamic law all residents of northern states regardless of religion on 20th January 1991.  On 1 July 1998, a new constitution came into force following a referendum.  Sources of law are Islamic law, consensus of the population, the constitutional, and custom.  In family law, judicial circulars (manshurat) issued by Qadi al-Quda (first issued in 1916) served to institute reforms or instruct application of particular interpretations. Family Code passed in 1991, codifying shar'i principles and interpretations of some manshurat and abolishing others. Section 5 of Code indicates Hanafi fiqh as residual source of law; Supreme Court (Shari'a Circuit) vested with power to issue interpretations of Code.  

School(s) of Fiqh

Maliki school prevailed until Sudan was consolidated into Ottoman Empire through Egyptian rule, during which time Hanafi madhhab became dominant school.

Constitutional Status of Islam(ic Law)

Constitution came into force on 1 July 1998, after being approved in a referendum the previous month; Art. 1 states that Islam is the religion of the majority of the population, but does not proclaim it to be the state religion; Art. 65 identifies the sources of law as shari’a, the consensus of the people, the constitution, and custom.

Court System

The court system consists of a Constitutional Court, a High Court, Court of Appeals and courts of first instance.  Civil and shari'a courts divided during colonial period reunified in 1983 during Islamisation campaign; there is nothing in the new constitution to suggest that there has been a change in the treatment of shari'a in the courts.

Relevant Legislation

Constitutional Court Act 1998

Muslim Personal Law Act 1991

Also:

Shari'a Courts Act 1967

Judicial Authority Act 1971

Organisation of Laws Act 1973

Judiciary Act 1976

Local Courts Act 1977

[September Laws; part of Ja'far al-Numayri's Islamisation campaign during Sudan's previous period of military rule (1969-1985)]

Civil Procedure Act 1983

Civil Transactions Act 1983

Criminal Procedure Act 1983

Evidence Act 1983

Judiciary Act 1983

Penal Code 1983 (introducing hadd penalties)

Sources of Judicial Decisions Act 1983

Civil Code 1984

Sudanese Criminal Act 1991 (reinstating hadd offences and law of qisas and diyat)

Notable Features

Marriage Age: puberty, with requirement for willing consent of both parties. Marriage Guardianship: Guardian is to marry the adult woman with her consent, although the qadi is empowered to act in this capacity if her guardian refuses his consent without justification. Guardian retains entitlement to seek dissolution on grounds of lack of kifa'a of husband (defined as kifa'a in religion and morals. Polygamy: classical rules apply

Obedience/Maintenance: Provision is made for stipulations to be inserted in the marriage contract. The wife has rights against her husband in accordance with classical rules: maintenance, the right to visit her parents and other close (mahram) relatives to the extent recognised customarily. Maintenance includes medical fees and is assessed according to the circumstances of the husband; arrears of maintenance can be claimed for up to three years preceding the date of submission of claim. She loses the right to maintenance if she is disobedient, in accordance with the classical rules, but a ruling for obedience cannot be forcibly executed

Talaq: Regionally standard reforms affecting validity of talaq accompanied by a number in word or sign, talaq in the form of an oath, talaq phrased and intended to induce someone to do something. The wife must be informed of the husband's revocation of a revocable talaq during her `idda period in order for the revocation to be valid.

Judicial Divorce: wife may seek judicial divorce on following grounds: husband's incurable physical or mental illness making it dangerous for the wife to continue to live with him; husband's impotence not curable within one year (established by medical report); husband's cruelty or discord between spouses; husband's inability to pay; husband's absence for one year or more or his being sentenced to two years or more in prison; also, divorce by ransom, i.e., if wife is declared nashiza (disobedient) by court order, wife may waive her rights and if the man does not agree to the divorce, arbitrators must be appointed; if she proves that she suffers from remaining with him a talaq will be ordered by the court.

Post-Divorce Maintenance/Financial Arrangements: divorced wife entitled to maintenance as per the classical rules and in most cases to mut`a assessed according to the means of the ex-husband to a maximum of the equivalent of six months' maintenance.

Child Custody and Guardianship: divorced mother has custody over boys until 7 years and girls until 9 years; custody may be extended if proved to be in best interests of ward; until the male reaches puberty and the female consummates her marriage.. Court has some discretion to allow a woman who re-marries a man not within the prohibited degrees of relationship to the child (i.e., a mahram) to retain custody if the interests of the ward so demand. The custody of a woman of a different religion to the father ends when the child is five years old, or earlier in it is feared that the child will take another religion. Child support considered father's duty until girl is married and until boy is of age able to earn his own living. Succession: Radd extended to include spouse

Law/Case Reporting System

Case reporting through Sudan Law Journal and Reports, includes section on personal status cases. Law reporting through the Sudan Gazette.

International Conventions (with Relevant Reservations)

ICCPR & ICESCR- accession 1986 without reservations

CRC- signature & ratification 1990 without reservations

Legal History:

The legal system is based on English common law and Islamic law. Sudan came under Egyptian-Ottoman rule from the time of the Egyptian defeat of the Funj Kingdom in 1822. After the opening of the Suez Canal in 1869, European interest in the region increased; British General Charles Gordon appointed a governor of Egyptian Sudan in 1873. The Mahdist revolt led by Muhammad Ahmad al-Mahdi in 1880 led to the capture of Khartoum from the Egyptians in 1885. The British re-established control over the region in 1898 under General Horatio Kitchener. The British and Egyptians shared sovereignty during the Condominium period from 1899. An agreement to allow for a three-year transition period to independence in 1953 led to self-rule in 1956.

Civil war between the North and South continues to plague Sudan. Three extended periods of military rule have been punctuated by briefer periods of multi-party parliamentary rule. The last elected government was suspended after a military coup on 30th June 1989. Sadiq al-Mahdi was overthrown by the military and an Islamist coalition led by Lt. Gen. Umar al-Bashir and Dr. Hasan al-Turabi and martial law was imposed. From 20th January 1991, the Revolutionary Command Council imposed Islamic law on all residents of northern states regardless of religion.

On 1 July 1998, a new constitution came into force following a referendum the previous month.   Lt. Gen. al-Bashir became President and Dr. al-Turabi became Speaker of the Parliament.  On 12th December 1999, President al-Bashir dissolved Parliament and declared a state of emergency.   In April 2000, the state of emergency was extended through the end of 2000. 

Sources of law are Islamic law, consensus of the population, the constitutional, and custom.  In family law, judicial circulars (manshurat) issued by Qadi al-Quda (first issued in 1916) served to institute reforms or instruct application of particular interpretations. Family Code passed in 1991, codifying shari'a principles and interpretations of some manshurat and abolishing others. Section 5 of Code indicates Hanafi fiqh as residual source of law; Supreme Court (Shari'a Circuit) vested with power to issue interpretations of Code.   Sources of law are Islamic law, constitutional law, legislation, judicial precedent, and custom. In family law, judicial circulars (manshurat) issued by the Qadi al-Quda (first issued in 1916) served to institute reforms or instruct the application of particular interpretations. The Family Code passed in 1991, codified shari'a principles and interpretations of some of the manshurat and abolished others. Section 5 of the Code indicates Hanafi fiqh as a residual source of law; the Supreme Court (Shari'a Circuit) is vested with power to issue interpretations of the Code.

Schools of Fiqh: The Maliki school was the predominant madhhab in Sudan, although the dominant school is now the Hanafi, due to Egyptian and Ottoman influence.

Constitutional Status of Islam(ic Law):  The constitution came into force on 1 July 1998, after being approved in a referendum the previous month; Art. 1 states that Islam is the religion of the majority of the population, but does not proclaim it to be the state religion; Art. 65 identifies the sources of law as shari’a, the consensus of the people, the constitution, and custom.  Prior to the enactment of the constitution, Sudan had largely been governed through a series of "constitutional decrees."  Art. 137 repealed all of the constitutional decrees except Constitutional Decree No. 14, which provides for implementation of the 21 April 1997 Peace Accord.

Court System: The court system consists of a Constitutional Court, a High Court, Court of Appeals and courts of first instance.  During the Islamisation campaign of 1983, the government reunified civil and shari'a courts, which had been divided during the colonial period.  There is nothing in the new constitution to suggest that there has been a change in the treatment of shari'a in the courts.

Notable Features: The Muslim Personal Law Act 1991 requires that both parties to a marriage be past the age of puberty and be willingly consenting to the marriage. The male guardian marries adult women with their consent, although the qadi is empowered to act in this capacity if her guardian refuses his consent without justification. The guardian retains entitlement to seek dissolution on the grounds of lack of kifa'a of the husband, defined as kifa'a in religion and morals.

Classical rules apply to regulate polygamy. Provision is made for stipulations be inserted in the marriage contract. The wife is entitled to maintenance, assessed according to the circumstances of the husband; arrears can be claimed for up to three years preceding the date of submission of the claim at court. The wife loses the right to maintenance if she refuses to move to the marital home or leaves it without a shari'a justification, including if she works outside the house without her husband's consent, provided he is not being arbitrary in his prohibition on her working. The wife is required to obey the husband in accordance with the classical rules, but a ruling for obedience cannot be forcibly executed.

Reforms standard to the region to the rules on talaq have been introduced, affecting the validity of talaq accompanied by a number in word or sign, talaq in the form of an oath, talaq intended to induce someone to do something. In a further reform to classical law, the wife must be informed of the husband's revocation of a revocable talaq during her 'idda period in order for the revocation to be valid.

The wife may seek judicial divorce on the grounds of the husband's incurable physical or mental illness rendering it impossible for the wife to continue to live with him without harm; the husband's impotence not curable within one year; the husband's cruelty, or discord between the spouses; the husband's inability to pay maintenance; and divorce by 'ransom' where a wife held disobedient by the court may waive her rights in return for a divorce and if the husband refuses to agree, arbitrators must be appointed and if the wife establishes that she suffers from remaining with him, a talaq will be ordered by the court.

After divorce the wife is entitled to maintenance for the `idda period and to mut`a to be assessed according to the means of her ex-husband to a maximum of six months' maintenance. This is unless the divorce was a judicial divorce by reason of the man's poverty and inability to pay maintenance or for some physical reason arising in the wife, or unless the divorce was by khul`.

A divorced mother is entitled to custody of her male children till they are 7 years old and females till they are 9; the court may extend these period if it is proven to be in the interests of the wards, until the sons reach puberty and the daughters consummate marriage. The father or other male guardian is to maintain scrutiny of all matters related to the raising of the children in the custody of their mother. The court has certain discretion to allow a woman who marries a man not a mahram to retain custody if the interests of the ward so require. The custody of a woman of a different religion to the father ends when the child is 5 or earlier if there are fears for their faith being affected. Child support is the responsibility of the father until the daughter is married and the son is of an age when he is able to earn his own living.

In a reform to the law of succession, the radd has been extended to include the spouse relict after the fractional heirs and the succession of cognate relatives.

Law/Case Reporting System: Case reports are published in the Sudan Law Journal and Reports. Laws are published in the Sudan Gazette.

International Conventions (with Relevant Reservations): Sudan acceded to the ICCPR and the ICESCR in 1986, without reservations.

Sudan signed and ratified the CRC in 1990, without reservations.

Background and Sources: Amin, Middle East Legal Systems, Glasgow, 1985; Fluehr-Lobban, Islamic Law and Society in the Sudan, London, 1986; Hale, Gender Politics in Sudan: Islamism, Socialism and the State, Oxford, 1996; Mahmood, "Sudan" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; O'Fahey, The National Front, Its Opponents and the Sharia Issue, Islam et sociétés au sud du Sahara, n. 11 (Nov. 1997): 55-65; Pearl, A Textbook on Muslim Law, 2nd ed., London, 1987; Redden, "Sudan" in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rubin & Cotran, eds. Annual Survey of African Law, vols. I-VI (1967-1972), London; Safwat, "Islamic Laws in the Sudan," in Islamic Law: Social and Historical Contexts, al-Azmeh, ed., London, 1988; Safwat, "Sudan," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 237-253; Women and the Law in Sudan: First and Second Reports, Women Living Under Muslim Laws, vols. I-III (1997) & vols. I-III (1999).