Dossier 18: Legal Aid, New Laws & Violence Against Women In Sudan

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Introduction

This paper will address the issue of violence against women in Sudanese laws. Since 1989 the current government of Sudan enforced legislation and procedures based on Islamic principles. The present legal practices and fundamentalist Islamic discourse violate previously guaranteed constitutional rights to equality in law of women and non- Muslims in Sudan and disregard international standards of women’s human rights.

The paper will survey cases in which some of newly adopted laws such as the Public Order Act, the Family law, the Criminal law and other administrative decrees reflect violence, abuse and gendered power relations which are affecting Sudanese women’s citizenship and human rights. The study is based on experience gained through advocacy provided to women victims of violence and female prison inmates.

Preamble

Historically, gender oppression has been practiced against Sudanese women as part of the general social, economic and political structure. Patriarchal hierarchy and biases have mediated women’s cultural identity, their relationship with the state and the construction of laws. In the process of this socialisation, women’s dependency on the men in their lives: fathers, brothers, husbands and later sons, became the norm, while the social environment reduced them to their most biological functions. Even today, women’s accessibility to areas such as legal assistance is extremely limited, and a woman’s decision to go to court is largely influenced by the approval of her male guardian.

During the period following independence and particularly as from the 1960’s women obtained a significant number of political and civil rights such as equality before the law, equality in job opportunities, right to vote, the right to equal pay, the right to maternity leave, the right of ownership and the right to hold public office. However, lack of or little education and jobs for the majority left women prey to abusive marriages, harmful custom and traditional practices and exploitative work.

A protracted civil war in the Southern Sudan has furthermore resulted in the plight of hundreds of thousands of Southern Sudanese women who have taken refuge in the Northern towns. Changes in the status of these women have made them most vulnerable to all forms of abuses and violence. Besides enduring the brutalities of the war, non-Muslim Southern Sudanese women living in the capital city Khartoum are also obliged to conform with the strict application of Shari’a (Islamic Jurisprudence).

The situation of Sudanese women has been further compounded by a long span of authoritarian governance which culminated in the virulent rise to power of a hard-line Islamic discourse. This development, which began in 1983, has brought in its wake a far lesser commitment to confront gender inequality than had been conceded by previous democratically elected conservative governments. The onslaught on democracy which occurred on June 30, 1989 not only banned all secular opposition, all mass organisations including women’s, but also outlawed other more inclusive interpretations of Islamic social justice.

The practices of the present regime in Sudan bear no relation to those outlined in the previous Constitutions of the country (1973, 1985) which provided for equality of women in law and which upheld the diversity of the nation with its multi-ethnic and multi-religious composition. The Constitution is suspended and the entire country is now under a state of martial law.

The legislative power, moreover, has turned its back on all previously recognized international human rights and conventions in respect to women’s rights and their development-related activities. Under the present Islamic laws, women are subjected to direct violence sanctioned and condoned by the state in which law and authority are used as tools. Penal measures include the penalties of flogging, stoning and the imposition of a dress code, as well as restrictions on women’s economic activities, freedom of speech, movement and association, and lack of respect for ethnic, religious and linguistic minorities.

This paper will attempt to show a significant portion of the present government’s actions are directed against women.

This reality has created a diffuse sort of violence against women as evidenced by inequality before the law, socio-economic discrimination, the dissemination of fear, insecurity and political manipulation. Thus excluded from the public arena and threatened in the domestic sphere, Sudanese women are being denied their full talents of citizenship. In Sudan of today many of the best educated and highly skilled women are leaving the country thus contributing to the “brain drain” as a result of the fact that their attentions have been diverted from the fundamental challenges of socio-economic development.

The Public Order Act

These are new laws to the Sudanese legal tradition and were issued after the 1989 coup which also witnessed the suspension of the Constitution. They originated as constitutional decrees, their source is the President of the Republic.

The Public Order Act was introduced to storm against society’s “immorality”, to penalize alcohol consumption, to organise market places and to control public appearance. Most of the provisions of this law are regulated by criminal courts. Provisions 77, 78, 79 of the Criminal law constitute the majority of cases against women which include: disturbance of public order, consumption of alcohol or dealing with it. The penalty for these offenses is forty (40) lashes (flogging) if the offender is Muslim, imprisonment and payment of a fine. Yet, most of the cases involve non-Muslim women.

Public Order Courts are mandated to provide speedy justice for violations of the Public Order Law. In these courts, which are similar to exceptional or military courts, women arrested directly from their homes or one day before the trial are brought before the judge who then issues a speedy court ruling. Women are flogged on the spot. They have no access to defense counsel and are not given the opportunity to appeal their sentences in proceedings meeting previous Sudanese legal norms for a fair trial On some occasions when lawyers tried to intervene on behalf of the women, they were led out of court by the police forces. The justification given for the expeditious nature of these rulings is that a normal court hearing takes a longer time, whereas in these courts (which may last less than twenty minutes) only one hearing is deemed sufficient.

Summary justice violates due process, and is stripping ever larger segments of Sudanese women of control over their lives. Most of the women sentenced by Public Order Courts are non-Muslim Sudanese women who have been displaced by the on-going conflict in Southern Sudan. They have fled from the bloodshed, famine and insecurity and have become heads of households with hardly any means of livelihood. Moreover, these communities abide by their own traditions and socialising customs in which the consumption and brewing of alcohol are not prohibited, unlike in the towns of Northern Sudan where the prevailing Shari’a laws are strictly applied. This has led to large numbers of Southern Sudanese women ending up in prison, where alcohol offenses constitute 80% of all ‘crimes’ registered. Consequently, the Public Order Laws are insensitive to the conditions of these women for whom brewing of alcohol for sale has furthermore become a means to sustain themselves and their families.

Case

Akol Ariel is a woman from the Dinka tribe, married, with three children. Her house was raided by the Popular Police Force when she and her family were celebrating her sister’s wedding. All her brewing equipment was confiscated on the spot. Akol tried to explain to the police that alcohol consumption is a social habit particularly at weddings. Her explanation was rejected. She was taken to court and sentenced to pay a fine. Being poor, there is no way that Akol can pay the fine, which means her prison sentence will be extended.

The Public Order Law contains another provision concerning “moral cleansing”. Under this law, the police can stop any woman in the street on the grounds that she is improperly dressed, meaning not strictly adhering to the Islamic “hijab” (generally a loose garment covering head to foot which does not reveal the contours of a woman’s body). Infractions of this dress code are immediately punished by dragging the women involved to the nearest police station, where they are insulted and humiliated. Likewise, all female students are prohibited from entering institutions of higher education unless they conform with the Islamic dress.

These measures constitute an assault on women’s identity and dignity and are aimed at them solely on the grounds of their gender, treating them as bodies “which invite acts of immorality”. Their impact has created a continuous sense of insecurity among women.

The Public Order Law also penalizes prostitution and/or other “shameful conduct”. This means that a woman can be charged on grounds of mere “suspicion of the intention of prostitution”.

Case

Zeinab Yohanis, an Ethiopian woman married to a Sudanese, was arrested while she was watching TV in the company of friends, and charged under article 5 of the Criminal Law. As she was pregnant, the judge exempted her from flogging (article 35 prohibits flogging of the elderly and the sick). However, Zeinab was flogged just the same. As a consequence, Zeinab lost her unborn baby...

The fourth section of the Public Order Law contains general provisions such as the segregation of sexes in public transport seating and the separation of men and women in public places. Violation of this law requires payment of a fine of five thousand (5000) Sudanese pounds or twenty-five (25) lashes or both punishments. These measures are particularly inappropriate, given the fact that they have not been taken in response to any women’s campaign for separate bussing as was the case, for example, in Bangladesh where women’s groups specifically demanded separate bussing to and from the work place as a preventive measure against acts of violence. The provisions of this law, therefore, contain elements of criminal intent, designed to victimize Sudanese women rather than to seek their protection.

The Public Order Law does not provide any safeguards against the abuse of women with refugee status in Sudan, who, due to their precarious situation, may not have in their possession such documents as a marriage certificate when they are arrested.

Case

In Omdurman prison we met with an Eritrean refugee woman, Lotus Farmatin, 30 years old, housewife, Christian, mother of one child. She lives in Gireif, east of Khartoum. Lotus was charged with adultery under article 156 of the Criminal Law (meaning sexual relationship outside marriage). Her story is as follows:

She was in disagreement with her husband whom she married before seeking refuge in Sudan. Things deteriorated between them until it reached the police. The judge asked to see her marriage certificate which she was unable to provide. She was subsequently sent to prison with her eleven month old baby. Due to conditions in the prison, her child died and Lotus suffered a mental breakdown...

The Public Order Law also punishes informal sector activity which is generally practiced by poor women trying to survive by selling tea and coffee. Besides being harassed by passers-by, petty thieves and men seeking their bodies, these women are also subjected to “sweep campaigns” (Kasha) designed to “cleanse the city “. Their meagre utensils are usually confiscated on the spot, while most of them risk flogging as they cannot produce the license required to set up a trade...

Family (Personal) Law

Family or Personal Law is the legislation which regulates affairs concerning engagement, marriage, divorce, child custody, inheritance, ascendants, and will.

This Law was issued in 1991 again in the absence of democratic debate and without the participation of the women whose lives are the most affected by the provisions inherent in this Law.

The most flagrant discrimination against women stipulated in the provisions of this Law on which we shall focus concern the following:

The Marriage Contract

According to M. Saeed Al Ashmawi (1992, p.88), the marriage contract is civil even in Shari’a and is not a religious contract. It occurs when an adult female and an adult male agree to their union. However, religious movements have given this simple act of acceptance a religious tenor which was unintended in Shari’a.

In article 11 of the Family Law 1991, marriage is defined as a contract of (sensual) “pleasure” between both parties according to Shari’a. However, “pleasure” as defined in this interpretation is removed from the reality of the vast majority of Sudanese women who have been socialised by custom AND religion into believing that the husband has a sexual right over his wife, as well as the right to enjoy sexual relations with his wife whenever he so wishes, while the woman, if she practiced the same right would be a source of (heavenly) malediction. These “beliefs” are among the main reasons why women rarely seek divorce in court.

Case

Fatma A., lives in the outskirts of Omdurman. Her husband refused to pay maintenance allowance to her and her three children. He continued, however, to demand to sleep with her. She resisted his demands and so he started to beat her, forcing her to give in to his demands.

We followed Fatma’s case until we succeeded in obtaining her divorce in May 1996. However, our defense was based on the fact that the husband had stopped paying the maintenance allowance, as our real case for her, which is forced sexual relationship or rape, would not have convinced the judge under the prevailing interpretation of marriage in Sudan.

Guardianship

Articles 32, 33, 34 stipulate that the guardian or protector (Wali) of a woman should be a sane and mature male. This provision further states that no marriage can be signed without the authorisation of the guardian: father, brother, uncle. Should a woman marry without her guardian’s consent or without his knowledge, the Law gives the latter the right to call off the marriage. In cases where a woman does not consent to a marriage, the guardian can go through with the signature of the marriage in spite of that. Provisions such as these are reflective of the patriarchal power over women in which Law and authority are used as tools. This is a violation of Section B, article 16 of CEDAW: “the same right freely to choose espouse and to enter into marriage only with their free and full consent”.

Case

Haram S. is a 12 year old (!) girl who we met at the Shari’a court in Khartoum North. Her father had given her away in marriage without her consent, and she did not even know the whereabouts of her “husband”. Our office followed her case until we obtained her divorce. As the Law does not specify an age for marriage, this subjects young girls in Sudan to grave violations of their human rights.

The consent of a male guardian or blood relative is also required by all women, regardless of their age or profession. Women called to attend conferences abroad have experienced this gross violation of their freedom of movement, and above all their dignity, as this guardian can sometimes be their own son or a younger brother!

Polygamy

The Law does not prohibit polygamy and is silent on any restriction in the number of wives a husband can take in marriage. Moreover, the Law does not give the wife the right to divorce when her husband takes another wife. Many pending court cases are of women who are unaware that their husbands have taken a second (third or fourth....) wife.

Case

Mariam H. A., lives in Haj Youssif, East Khartoum. She is from the Nouba Mountains (South-West Sudan), married, with three children. Her husband took a second wife and started beating her. She filed a complaint of battering and abuse. Her husband admitted to battering her in front of the court, but the ruling was not divorce. We changed the reason for demanding divorce, and after a long time, the divorce was granted....

Administrative and Labour Laws

The participation of Sudanese women in public service began in the 1920’s, and was then restricted to the fields of teaching and health care with the expansion of educational opportunities, more and more women entered the civil service. The presence of women in the civil service had a profound impact on the amelioration of working conditions and labour laws for women throughout the country. Women obtained equality in job opportunities, equal pay with men, the right to maternity leave and the right to hold public office.

Since 1989, the exercise of these hard-won rights has been severely restricted by two major developments: political control and coercion aimed at weakening the position of women in Sudanese society.

Dismissal for Public Interest

After seizing power in June 1989, the present regime set out on a massive purge of the civil service and of the institutions of civil society. Thousands of men and women were fired from government jobs for “Public Interest” reasons, meaning in plain language (that they are) politically incorrect. Many professional women from the Judiciary and Foreign Affairs ministry were sent to retirement. Privatisation of banks later led to government layoffs of women on grounds of economic austerity measures. In private sector employment, cases of dismissal are related to pregnancy or maternity although this is not mentioned in the dismissal letter. This occurs in spite of the fact that the Sudan is signatory to the agreement which forbids dismissal of female workers on ground of pregnancy or maternity.

The neutrality of the civil service has thus been completely eroded.

Recruitment, Promotion and Public Appearance

While present and previous labour legislation prohibit sex discrimination in recruitment policies, in actual practice certain institutions such as the Judiciary, the Universities and the Foreign Affairs Ministry are restricting the employment of women. This is so in spite of the fact that the law stipulates that public sector employment is based on free competition and on the basis of qualification. In actual fact, the case of Sarra Y. which follows has become only too familiar to female University graduates.

Case

Sarra Y. graduated from the Faculty of Veterinary Science; her qualifications permitted her to apply for the job of teaching assistant at the University. Her demand was rejected, and a male colleague with a lesser qualification was chosen for the post...

In the area of promotion to a higher scale in office, discrimination on the grounds of religion and gender has lately become the norm. The general procedure is that the head of the department concerned would present a report on the performance of the candidate due for promotion. However, most of the heads of departments who write these reports are men, and one of their latest prerogatives is to add five (5) points to the general evaluation report if they consider that the woman’s “public appearance” is in conformity with the teachings of Islam.

This is a notorious development which does not equally apply to men, and had never existed in the Labour Laws prior to 1994.

Criminal Law 1991

Criminal Law defines the forms of conduct which are unacceptable to the society and stipulates them in the form of crimes punishable by law.

We shall refer here to two main issues which demonstrate the way in which the current criminal legislation discriminate against women and violate their human rights.

Article 92 of the Criminal Law makes it a condition that only a woman can (body) search another woman. This remains theoretical if we consider that the entire police force includes in its ranks forty-five (45) women police officers, in addition to one hundred and seventy-one (171) policewomen. The insignificant number of women police officers leaves women prey to the most demeaning forms of violence, particularly sexual molestation during night shifts, when women officers are generally not on duty. Fearing their superiors, most of the female police officers are silent about the situation.

Conditions are particularly alarming in the women’s and juveniles’ prison where there are no separate quarters for underage inmates and adults. At the same time no special care is provided for young children living with their incarcerated mothers. This has led to an increasing number of child deaths in Sudanese prisons.

Articles 68 and 69 of the Criminal Law concern so-called Public Disturbance Offenses: riots against the State or illegal gatherings, which may lead to punishments ranging from incarceration to payment of a fine or both. However female offenders are not judged according to these provisions, but are subjected to physical and psychological violence by Security agents. In the best of cases, women who commit such offenses are sent to Omdurman Prison for Women where they are kept with other women criminals, as there are no separate areas for women political prisoners.

Case

S. A. N, a University Lecturer whose brother was sentenced to death, is an opponent of the regime and was exposed to the situation in the women’s prison. She was unable to find a proper place to settle down in the prison until the social workers gave her their office. She was detained under these conditions for three months which were extended to a further three months...

Another case is that of a young woman whose husband was arrested and sent to jail. When the security agents came for him, they searched the house and found some anti-government leaflets. They threatened to rape the young woman if she did not inform them of her husband’s whereabouts. A nursing mother, she was denied access to her baby for a long while which affected her mental health. As a result, the young woman and her family later left Sudan.

There are thousands of women like the cases mentioned above who have been tortured, abused and kept for days on end in the offices of the state security.

Perspectives on an Agenda for Action

At the UN World Conference on women in Beijing in September 1995, the official Sudanese women’s delegation expressed reservations to the following Articles in the section on Violence Against Women:

Articles 113:

Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.

Articles 124:

Condemn violence against women and refrain from invoking any custom, tradition or religious consideration to avoid their obligations with respect to its elimination as set out in the CEDAW.

This does not bode well for the immediate future of a violent-free society for the women of Sudan. How to move beyond the exclusive and retrograde views espoused by Muslim fundamentalist men AND women will remain a particular challenge for the women in Sudan. Meanwhile, a valuable contribution to stem the spread of “fundamentalist” violations of Sudanese women’s human rights would be to provide sustained support to those groups that are attempting to act outside the sphere of the present state in Sudan.

In correlation with the above, and with the knowledge that international documents have little power in forcing the compliance of governments with their provisions, pressure should nevertheless be brought to bear on the Sudanese government and its legal advisers to ratify the Convention on the Elimination of all forms of Discrimination Against Women as well as all the conventions concerning women’s rights. As some twenty-nine African states have ratified the Convention including three states where Islam is the state religion (Egypt, Libya, Tunisia-with reservations limiting its meanings nonetheless), it would appear that there is now more space for regional lobbying on the issue of African women’s oppression than in the past, and this potentially transformative occasion should not be missed.

News report: Draconian Law on Public Decency passed in Sudan

KHARTOUM, Sudan October 22, 1996 (PANA) — Authorities in Khartoum, capital of the Sudan, Tuesday, adopted a law that seeks to separate men and women in public places and public gatherings and introduce strict “decency” rules.

The public order, that touches on everything from drinking to dressing, regulates public conduct along the tenets of the Islamic Shari’a law.

The law, passed by the Khartoum state council, says men and women attending public parties such as wedding parties and galas, should be separated by a barrier and they should not sit facing each other.

Women using public transport will not be allowed to sit on the seat near to the driver and the verse from the Koran asking the believers not to look at the opposite sex should be written clearly on the bus wall.

Owners of cars used for public transport should not write any expression or word that offends the public taste inside the carriage, the law further says.

The law bans the use of tape recordings of “obscene” songs in public transport, public and private places.

Smoking is prohibited in public transport or closed public places, the law stipulates.

In case of demonstrations and popular processions men and women should march in separate columns. Women should be separated from men in public meetings and political gatherings as well.

Men and women, the law further demands, should sit separately in places of recreation.

Women are not allowed to “move about in marketplaces at night unless with a close male relative.”

No sports should be performed with short or tight fitting clothes that may reveal the structure of the human body.

Women sports should be performed in private places and away from places frequented by men, the law adds.

Called the Provisional Decree for Public Order of the State of Khartoum for 1996, the law bans the allocation of dark areas in public places where individuals and groups can sit.

Members of folklore troupes are obliged to put on dresses that cover the body when performing their shows, the law says.

No person, male or female, should go out of his house without wearing clothes that well cover the body.

The taking of or trafficking of alcohol and narcotics is prohibited in public and private places.

The law bans the taking, developing, trafficking and displaying of pictures that contain scenes of naked bodies.

Individuals and groups taking part in picnics, of all sorts, should observe this law.

Males are obliged not to wait near girl schools or the roads leading to these schools without justification.

Public places that render services near girls schools or the roads leading to these schools should not use dark glass windows or curtains at the entrances and such places should be well lit.

The law also demands that private schools should separate male students from females.

Pupils are not allowed to move about outside the school fence during the school day without obtaining permission from the school.

Urinating and defecating is prohibited on roadways.

Cards and the like should not be played in front of houses or on roadways.

The Khartoum council has suggested a comprehensive media campaign to explain the law to the public.

Sudan adopted the Islamic Shari’a law in 1983. In 1991 the government of General Omar el Bashir issued an amended version of that law.

In 1992 the government adopted federal rule to run the culturally and ethnically diverse country of 26 million.

Now it remains to be seen whether other states with Muslim majorities would issue laws similar to the Khartoum law.

Already courts in northern Sudan apply the Islamic penal code that prescribes certain punishments for thefts, liquor drinking and adultery according to the teachings of the Koran or the tradition of Prophet Mohammed.