Sudan

Brief

Policy

November 2013

THE U.S. 

COMMISSION ON 

INTERNATIONAL 

RELIGIOUS 

FREEDOM

was created by the 

International 

Religious Freedom Act 

of 1998 to monitor the 

status of freedom of 

thought, conscience, 

and religion or belief 

abroad, as defined in 

the Universal 

Declaration of Human 

Rights and related 

international 

instruments, and to 

give independent policy 

recommendations to 

the President, 

Secretary of State, 

and Congress. 

732 N. Capitol St. N.W. ,

Suite A714

Washington, D.C. 20401

Phone: (202) 786-0613

Communications@uscirf.gov

www.uscirf.gov

November 2013

Sudan’s Enduring Question:

The Role of Shari'ah in the 

Constitution and Law

CIA World Factbook, U.S. Department of State image, https://

www.cia.gov/library/publications/the-world-factbook/geos/su.html
November 2013

Brief

Policy

U.S. Commission on International Religious Freedom

In December 2010, Sudanese president Omar al-Bashir declared that Sudan’s new constitution 

will be based on his government’s interpretation of Islamic (Shari’ah) law. Senior officials 

continue to repeat his declaration, as opposition parties and civil society representatives insist 

that Sudan’s new constitution be based on universal human rights and reflect Sudan’s 

commitments to international human rights standards, including freedom of religion or belief. 

Concerns about Shari’ah being central to a future constitution ignore the fact that Sudan’s current 

legal system already is based on a restrictive interpretation of Shari’ah provisions and 

corresponding hudood, or classes of crimes with set punishments. For the past 30 years, prior 

governments and today’s ruling National Congress Party (NCP) have based many of the provisions 

of the 1991 Criminal Code, the 1991 Personal Status Law of Muslims, and state-level “public 

order” laws on their interpretations of Shari’ah and imposed these interpretations on all Sudanese, 

Muslims and Christians alike. The government’s imposition of Shari’ah countrywide in 1983, 

including on the predominantly animist and Christian South, significantly contributed to the onset 

of Sudan’s 20 year North-South civil war. Further, the issue continues to contribute to the ongoing 

fighting in Southern Kordofan and Blue Nile states. 

Concern about the consequences of incorporating Shari’ah and hudood punishments into national 

law thus require a broader focus on both rule of law reform as well as the constitution. These 

provisions are at odds with Sudan’s previous commitments to universal human rights,

1

 including 

freedom of religion or belief. Addressing this divisive issue and ensuring respect for religious 

freedom should be a cornerstone of U.S. policy toward Sudan, to both support religious freedom 

and related human rights and to help stabilize the country. 

The U.S. Commission on International Religious Freedom (USCIRF) recommends that the U.S. 

government take the following actions to address these concerns: 

• Before normalizing relations or lifting the IRFA and IEEPA sanctions on Sudan, require

the Sudanese government to abide by international standards on freedom of religion or

belief, including by amending the 1991 Criminal Act, the Personal Status Law of Muslims,

state level public order laws, and other laws and practices which infringe on religious

freedom;

• Encourage and support civil society groups to monitor implementation of the public order

laws and advocate for their repeal;

• Expand U.S. efforts to help ensure that the new constitution includes provisions protecting

internationally guaranteed human rights, including by working to educate relevant parties

1 Sudan is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination, 

International Covenant on Economic, Social and Cultural Rights, Optional Protocol to the International Covenant on 

Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, Optional Protocol to the 

International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination 

against Women, and Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against 

Women.

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U.S. Commission on International Religious Freedom

about a constitutional drafting process that incorporates international human rights 

standards, including regarding freedom of religion or belief; and

• Urge the government of Sudan to hold a transparent and inclusive national constitution

drafting process that includes civil society leaders and representatives of all relevant

political parties to help ensure that Sudan’s new constitution includes protections for

freedom of religion or belief, respect for international commitments to human rights, and

recognition of Sudan as a multi-religious, multi-ethnic, and multi-cultural nation, and

support indigenous efforts to influence the process positively.

Background and History 

Great Britain introduced the secular 1925 Penal Code in Sudan to govern criminal matters during 

the colonial period. The Penal Code remained in place after independence in 1956 until 1971 

when legal reforms were instituted. During this period, Islamic law was confined to personal 

matters such as marriage, divorce, guardianship, and inheritance. After independence, proShari’ah political leaders tried multiple times to incorporate Shari’ah into the criminal legal 

system and pressed for the adoption of a constitution based on Islamic law. They briefly 

succeeded in 1969 when the National Assembly passed a Shari’ah-based constitution. However, 

Major General Gaafar Nimeri’s coup on May 25 of that year thwarted these efforts. 

However, in 1971, Nimeri’s increasing pan-Arab foreign relations policy led him to call for a 

review of Sudan’s laws to bring them into conformance with Shari’ah. This review resulted in the 

Civil Law Act of 1971 that replaced the 1925 Penal Code. The Act was a compilation of laws 

from Egypt, Syria, Jordan, and other Arab countries. Legal confusion led to the Act’s revocation 

in 1974 and a return to the 1925 Penal Code. 

The 1983 September Laws 

Politically weak, President Nimeri sought to extend his power by currying favor with Sudan’s 

growing Islamist movement. In September 1983, he supported a restrictive interpretation of

Shari’ah that was successfully and, in retrospect, lastingly incorporated into Sudan’s legal system. 

The promulgation of the “September Laws,” the 1983 Sources of Judicial Decisions Act and the 

1984 Civil Transitions Act, made certain crimes subject to hudood punishments and declared that 

Shari’ah would be the prime source for judicial rulings in those cases in which no relevant law 

existed. 

Article 3 of the Sources of Judicial Decisions Act states that:

“Not withstanding what may be envisaged in any other law and with the exception 

of the criminal cases, in the absence of legislative provision that governs the 

incident: (a) The judge shall apply what he finds in Sharia provision established by 

the texts of Holy Book [Quran] and the Sunna, (b) If the judge does not find a text 

he shall exercise his own thinking and shall be guided in so doing by the following 

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principles where he shall take them into consideration and shall decide their order 

of priority on the basis of the following principles:

1) The consensus and the requirements of Sharia’s holistic and general principles

and what its directions guide;

2) The Analogy which is based on Sharia’s provisions realising its criteria and

corresponding to its parallels;

3) Bringing of public interests and averting of harm;

4) Presumption of innocence, a permissive approach towards human acts and

leniency in imposition of God’s commandments;

5) Seeking guidance from Sudanese judicial precedents provided that they do not

contravene with Sharia;

6) Consideration of customary law of transactions provided that it does not

contravene with Sharia provisions or the principles of natural justice;

7) Principles of universal justice prescribed by noble human laws and equity

enshrined in good conscience.”

Upon implementation of the September laws, floggings and amputations were shown on television, 

and, in a public relations move, alcohol was dumped in the Nile. In 1985, Mahmoud Mohammed 

Taha, a Muslim reformer and Republican Brothers leader, was executed for apostasy – the only 

time this hudood punishment has been imposed since the pre-colonial era. 

President Nimeri was removed from office in a 1985 coup by then Defense Minister General Abdel 

Rahman Swar al-Dahab. Later that year, Sadiq al-Mahdi, who was elected prime minister, worked 

with the National Islamic Front (the precursor to the NCP) to draft a Shari’ah-based criminal code.

National Congress Party and Further Implementation of Shari’ah Laws 

Al-Mahdi’s efforts never came to fruition because Colonel Omar al-Bashir and what was to 

become the NCP removed him from power in 1989. Starting in 1991, President al-Bashir and the 

party initiated their own efforts to expand the application of their interpretation of Shari’ah across

the country at national and state levels. These laws, the 1991 Criminal Code, the 1991 Personal 

Status Law on Muslims, and state-level public order laws, have ensured that the NCP’s 

interpretation of Shari’ah law regulates not only criminal matters, but also personal behavior for

all Sudanese, regardless of faith and belief. 

The Criminal Code 

The 1991 Criminal Code Act is the cornerstone of the NCP government’s implementation of 

Shari’ah in Sudan. The Act identifies and addresses those offenses, including hudood offenses

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that violate “public order.” According to the Act, hudood offenses are defined as “drinking 

alcohol, apostasy (ridda), adultery (zina), defamation of unchastity (qazf), armed robbery 

(hiraba), and capital theft.” These offenses carry fixed sentences that include death by hanging, 

stoning, crucifixion, and whipping.2 

Drinking Alcohol 

Articles 78 and 79 of the Criminal Code prohibit the drinking and distributing of alcohol and 

provide that any Muslim caught drinking, possessing or manufacturing alcohol will be sentenced 

to 40 lashes. The Code also states that whomever stores, sells, purchases, transports, or 

possesses alcohol with the intention of dealing to others or mixing it with food, drink or any 

substance used by the public, or advertises or propagates it in any way, shall be sentenced to 

imprisonment not to exceed one year or a fine. 

Apostasy (Ridda) 

An apostate is identified as anyone who publicly renounces Islam. Articles 125 and 126 penalize

insulting religious beliefs and apostasy. Anyone who publically abuses or insults religions or 

religious beliefs shall be sentenced to up to one year imprisonment, up to 40 lashes, or a fine. A 

person found guilty of apostasy may be sentenced to death. 

Adultery/Illegal Sexual Relations (Zina) 

Articles 146 through 154 address the hudood offenses of zina. Articles 146 and 147 address 

adultery,

3 providing that whomever commits adultery shall be sentenced to execution by stoning4

in those instances when the offender is married or 100 lashes when the offender is not married. In 

addition to whipping, a non-married male offender may be sentenced to one year in prison. The 

penalty for adultery may be reduced under two circumstances: the offender retracts his confession, 

or witnesses retract their testimony. 

Article 149 concerns sodomy and rape and provides that whomever commits the offense of 

sodomy shall be sentenced to 100 lashes and imprisonment. If the offender is convicted three 

2 The Act includes the caveat that no person shall be whipped if he or she is more than 60 years old or if that person 

is sick and the lashing would endanger his life or aggravate the illness. In these cases, an alternative penalty is 

determined at the discretion of the judge. A whipping also can be suspended, and resumed at a later time, in case of 

the health of the offender. 

3 According to article 62 of the 1994 Evidence Act, “the offence of adultery shall be proved by any of the following: 

(a) by express confession before the court, unless there is a retraction before the commencing of the execution of the 

judgment; (b) by the testimony of four adult men; (c) by pregnancy when the woman has no husband if there is not 

any doubt; (d) refusal of wife to give “Lian” oath, after husband taking “Lian” oath.” 4 Art. 193(2) Suspension of Executing Death Penalty on the Aged, a Pregnant or Suckling Woman provides that the 

prison director may suspend the execution of a woman sentenced to death for adultery if she is pregnant or 

breastfeeding. The term of the suspension is until after delivery, or up to two years, after lactation, where the baby 

is alive.” 

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times, he may receive a sentence of death or life imprisonment. Article 149 also states that a 

person shall be deemed to have committed the offense of rape whenever they have sexual 

intercourse “by way of adultery, or sodomy, with any person without his consent.” Whomever 

commits the offense of rape shall be sentenced to 100 lashes and imprisonment of up to 10 years. 

However, if the act of rape leads to adultery or sodomy, the crime is punishable by death. 

Prostitution is addressed in article 154, which states that whomever is found practicing or in the 

place of prostitution shall be sentenced to up to 100 lashes or three years imprisonment. 

Defamation of Unchastity (Qazf) - Offenses of Honor, Reputation and Public Morality

The offenses addressed under articles 151 to 153 and 157 and 158 relate to behaviors the 

ruling party and legal authorities deem indecent, immoral or contrary to public morality. Article 

151 addresses the prohibition on “gross indecency” which is vaguely defined as anyone who 

“commits any act contrary to another person’s modesty, or who does any sexual act with 

another person not amounting to adultery, or sodomy.” Offenders shall be sentenced to up to 

one year imprisonment, 40 lashes, or a fine. A person who in a public space has committed an 

act or conducted himself in a manner contrary to public morality5or public feelings shall be 

sentenced to up to 40 lashes, a fine, or both, per article 152. Additionally, article 153 states 

that “whoever manufactures, photographs, possesses or handles any material contrary to public 

morality” may be sentenced to up to one year imprisonment, up to 40 lashes, or a fine. 

Whomever “deals in materials contrary to public morality, or manages an exhibition or theatre, or 

entertainment club, or show house, or any public place that presents such materials” shall be 

sentenced to up to three years imprisonment, 60 lashes, or both. 

Articles 157 and 158 also prohibit false accusations of unchasity, with offenders sentenced to up 

to 80 lashes. In cases in which the penalty is reduced, the offender shall be punished for defamation 

and sentenced to up to six months imprisonment, a fine, or both. 

Armed Robbery (Hiraba) 

Articles 168 and 169 address armed robbery and provide that if the robbery results in murder or 

rape, the offender shall be sentenced to death, or death and then crucifixion. If the robbery results 

in grievous injury, the offender shall be sentenced to the amputation of the right hand and left 

foot.6

 People sentenced to other cases of robbery shall receive sentences of imprisonment of up 

to seven years. The sentence for armed robbery may be reduced if, for example, the offender 

declares his repentance before arrest. However, the victims of the robbery may still be entitled to 

5 According to the Article an act is deemed contrary to public morality “if it is so considered in the religion or the 

doer, or the custom of the country where the act occurs.” 6 Art. 194 Health Condition of Sentenced Person to be Regarded: “(2) Every sentence of amputation, as a hud, or 

retribution, shall be preceded by medical examination of the sentenced person, by a physician. Execution shall be 

made by a competent person, and the amputated person shall remain, under medical care, at the States expense, until 

he is cured.” 

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compensation (dia or blood money) and the offender shall be sentenced to up to five years 

imprisonment. 

Capital Theft 

Capital theft is addressed in articles 171 and 173 and provides that an offender have his right hand 

amputated. Offenders convicted for a second time receive sentences of up to seven years 

imprisonment. If the penalty is reduced for either the first or second offense, the offender shall 

be sentenced to up to seven years imprisonment, up to 100 lashes, or fined. 

Personal Status Law of Muslims 

The 1991 Personal Status Law of Muslims or “Family Code” codified into the state legal code 

Shari’ah law provisions on personal matters such as marriage, divorce, child guardianship, and 

inheritance. While these provisions were respected during the colonial era and before 1991, the 

Family Code marks the first time they were codified into national law and established a 

discriminatory system that limits the rights of women based on a particular understanding of 

Islamic law.

Marriage 

The Personal Status Law permits consensual marriage between a man and a woman when she 

reaches puberty, which could be well under 18 years of age. The woman’s guardian must approve 

the marriage for it to take place. The guardian also can dissolve the marriage due to a husband’s 

lack of kifa'a (religion and morals). Should the guardian refuse without justification to allow the 

marriage, a qadi (an Islamic court judge) may intervene. During the marriage, the wife is granted

financial and medical support (should she be deemed obedient) and the right to visit parents and 

other close relatives. Polygamy is permitted.

Judicial Divorce

A wife may divorce her husband on several grounds, including if he: has an incurable and physical 

or mental illness that makes him a danger to the wife; is impotent; absent for at least one year; or 

has been sentenced to prison for at least two years. If the court determines that the wife has been 

disobedient, the husband may seek a divorce. Following divorce, the wife is entitled to a maximum 

of six months’ alimony. 

Child Custody and Guardianship 

A divorced mother retains custody over boys until they are seven years old, and girls until they are 

nine years old, although this period of time may be extended. A remarried woman may retain 

custody of her child, while a divorced mother loses custody after five years if her religion differs 

from her husband’s. A father provides child support until a daughter marries and a son earns his 

own living. 

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The Family Code sets fixed rules for inheritance that cannot be changed even in a deceased’s will. 

The amount of inheritance a woman can receive is half the man’s share. A man whose wife has 

no descendants receives half the inheritance and in those cases in which there are descendants, one 

quarter of the inheritance. If it is a polygamous marriage, the women equally share the inheritance 

and a man receives twice the proportion designated to each woman. 

Public Order Laws

The public order laws are state-level laws that regulate the social behaviors of all Sudanese and 

are based on the government’s interpretation of Shari’ah law. In practice, they disproportionately 

impact women and young girls, especially those from marginalized religious and ethnic 

communities. The most extensive is the Khartoum Public Order Act of 1998 (KPOA) which 

restricts the activities (in both public and private) of all of the over seven million people who live 

in Sudan’s capital, Khartoum. The Act restricts behavior that authorities, based on their particular 

interpretation of Shari’ah, deem offenses of honor, reputation and public morality, including and 

expanding those crimes listed in Articles 151 to 153 of the 1991 Criminal Code. As defined in 

the Criminal Code, penalties for offenses include imprisonment, whipping and fines. 

The KPOA includes enforcement mechanisms, including a special public order police, the Police 

of Society Security, and special public order courts. While the KPOA is a state law, the public 

order police are a special arm of the national Sudan Police Force. The public order police 

frequently employ “sweep and arrest” operations that usually target women from marginalized 

communities. The public order courts enforce the KPOA as well as relevant national laws, 

including the Shari’ah provisions of the 1991 Criminal Code. Defendants before the public order 

courts are not afforded due process rights, including legal assistance or time to prepare a defense. 

Defendants’ arrest, detention, hearing, sentencing, and penalty imposition can take less than 24 

hours. And records of court proceedings are scant. 

Restrictions on Public or Private Parties with Music

Article 7 of the KPOA requires government permission for parties and restricts the following: 

parties lasting beyond 11 p.m., dancing between men and women or women dancing in front of 

men, and the “singing of trivial songs.”7 Article 8 prohibits musical parties, cinema or theatre 

shows, exhibitions or other such events. 

Restrictions on using public transportation 

Article 9 of the KPOA restricts the seating of women in public transportation. Every public 

transport vehicle must have a separate entry for women and at least 10 seats and/or one quarter 

of all seats reserved for them. The article also prohibits “writing any expression, or sticking 

7 Defined in the Act as “songs that use words or expression contradicting religion morality good taste and good 

conscience.”

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Inheritance 
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U.S. Commission on International Religious Freedom

Women’s Hairdressing Businesses 

Articles 13 through 17 of Chapter 5 require a license to open a hairdressing business and mandates 

a number of restrictions once a permit is issued. These restrictions include prohibiting employing 

men as hairdressers and their starting or managing (but not owning) hairdressing businesses. They 

also require that businesses are located in a public place with entrance/exits facing the street; 

female employees are “righteous” and have a good reputation; managers are at least 35 years old; 

and license authorities and Public Order Police are allowed at any time to enter and inspect 

businesses. 

Miscellaneous Provisions 

The Act also mandates the following restrictions: women’s clothing tailors must be righteous and 

of good reputation; men and women must form separate lines; businesses must close on Fridays 

from midnight to 2 p.m.; and restaurants and cafes must close during the day during Ramadan.

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any picture or sketches, that contradict religion morals and good taste" on public transportation, 

or darkening or shading of public or private vehicles.