Dossier 18: Ustadh Mohamed Taha: 12 years after his execution

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On January the 18th 1985, Ustadh Mahmoud Mohamed Taha was executed in Kober Prison in Khartoum Sudan after a short trial on the previous day. His trial reflected the collapse of the rule of law after the promulgation of the September 1983 Laws, the declaration of emergency and the "Prompt Justice Courts" of 1984. Ustadh Taha's trial was a classic example of an unfair trial.

Ustadh Mahmoud Mohamed Taha was born in a sufist family, in the town of Rufaa (160 miles south of Khartoum) in 1909. His mother died when he was one year old and his father died when he was ten. Despite his family's religious background he completed his education in modern schools and graduated as an engineer in 1936 from Gordon Memorial College (now Khartoum University). He joined Sudan Railways after his graduation.

In 1941, Ustadh Taha resigned his governmental post and in 1945 established the Republican Party. In 1946 he was convicted and sent to prison for his anti-colonial activities. When he was released, he was again sentenced for two years for leading demonstrations in his town Rufaa against a legislation issued by the colonial government. When he was released in 1948, Ustadh Taha confined himself to worship, reading and thinking. In 1951 he published his first book "The Second Message of Islam" calling for a new understanding of Islam. Since then he published several books and gave many public lectures on the subject and he spent almost all his time teaching his ideas to his followers, writing new books and pamphlets and giving public lectures.

His thought became more known to the public after the October Revolution of 1964 which re-installed a democratic system following six years of military in the Sudan. When the Government in November 1965, decided to dissolve the Sudan Communist Party, Ustadh Taha and his Republican Party joined the Congress for the Defence of Democracy which consisted of the lawyers and other professional, employees and workers trade unions and some political formations to defend the right to association and expression. It is his involvement in the discussion on that issue and the constitutional case related to it which focused on the contradiction between the Republicans and the Moslem Brotherhood. Taha launched a critical theoretical campaign on Dr. Turabi and his Islamic Charter Front. As a counter attack Ustadh Taha was accused for the first time of apostasy before an ordinary Sharia Court jurisdictions were determined by law to look at personal matters of the Muslims in the Sudan (such as marriage, divorce and inheritance). However, Ustadh Taha refused to attend the trial and the court in his absence declared him 'apostate', and decided to divorce him from his wife, confiscate his books, dissolve the Republican Party and close down its offices. The court judgement was not implemented because the court had no jurisdiction.

When Nimeiri took power in 1969, Ustadh Mohamoud Taha and his followers supported him. To overcome Nimeiri's decision of dissolving parties, they changed their name to the Republican Brothers. They continued supporting Nimeiri, until the National Reconciliation in 1978, when they began to be critical of some of Nimeiri's practices especially those concerned with the alliance with the Muslim Brotherhood and traditional Islam. They continued their criticism of Dr. El Turabi the leader of the Muslim Brothers and his group despite that the former became minister in Nimeiri's government. The Republican's criticism of Nimeiri's regime reached its height when Nimeiri issued his Islamic Sharia Law in September 1983. Immediately Ustadh Taha and a group of his followers were arrested and sent to Kober Prison where they spent about 19 months. They were released on 19 December 1984. On Christmas Eve 1984, the Republicans distributed their pamphlet "This or the Inundation" calling for the abolition of September laws, the end of the war in the South, and the beginning of a national free dialogue among the Sudanese to determine their future. As a result Ustadh Taha and four of his followers were arrested in January 1985 accused of instigating hatred against the Government under Article 105 of the Penal Code and corresponding articles in the National Security Act. Despite the fact that none of those articles included any accusation of apostasy, Ustadh Taha was sentenced to death convicted of apostasy. The sentence was carried out on 18 January 1985.

Dr. Amin Mekki Meddani: on the Trial of Ustadh Mahmoud

In a paper presented to the International Law Association Dr. Amin Mekki Medani wrote about the Ustadh Mahmoud trial:

Finally, came the saddest case in the Sudan's history which more than anything else, demonstrates the callous exploitation of Islam for purely political purpose. Ustadh Mohamoud Taha was a 76 year old man, engineer by profession, a well known Islamic scholar for some 40 years and leader of the Republican Brotherhood. Appalled by Nimeiri's September laws and their implementation, the Republicans distributed a leaflet to the public describing how the regime's practices were in effect an insult to Islam. Taha and some five members of his group were sent to trial on charges under the Penal Code and the State Security Act for opposing and waging war against the regime. All the accused were sentenced to death. However, although the trial court had not charged the accused of an offence of apostasy, the trial judge gave the accused a period of 3 days to repent or reject their views (in accordance with one view of the Sharia).

The Court of Appeal ignored the charges for which the accused were convicted at the trial court but confirmed the sentence of death for the crime of apostasy which was not a defined offence under the Penal Code or any other law in force. Instead, the Judge El Mikashfi exercised his own Ijitihad (jurist reasoning) based on the Source of Judgement Act (which enabled Courts to punish persons for offences not specified in Penal Code). The sentence also provided that Taha's body should not be buried in the Muslim Cemetery, no prayer ceremony should be held for his soul and his books and all his properties should be confiscated. Three days later, Nimeiri, in exercising his prerogative of mercy, gave a televised statement explaining the "legal" reasons why he had no option but to confirm the death sentence. Ustadh Taha was executed the following morning 18.1.1985 at Kober Prison. His body was flown by helicopter to a place unknown.

The other five accused, who were forced to witness their leader's execution, were immediately thereafter subjected to a morbid ordeal called Istitaba (repentance). In a long nation wide televised intimidatory drama led by El Mikashfi, they were forced to choose between their leader's faith or condemning him as a kafir (infidel) and apostate and denouncing their belief in his thoughts. Their confirmation of their belief in Islam, God and Prophet Mohammed did not satisfy their tormentors. In the end, they had no option but to succumb and repeat the exact words dictated to them to save their lives and be "Welcome[d] back to the family of Islam" as El Mikashfi congratulated them in ending the ordeal.

The full extent to which Taha's case represents a morbid utilisation of Islam can be fully appreciated by reading the judgement of the High Constitutional Court in the case of Asma Mohmoad Mohammed Taha and Abdulatif Omer Hassaballaa v. Sudan Government, in a suit brought by Taha's daughter and one of the Republicans who went through the istitaba dramatic scenes. Although the Attorney General, representing the Sudan Government as defendant, conceded all the substantive issues in the suit, the Court saw fit to deliver a full judgement in view of the case's historic constitutional significance.

The judgement establishes, in my opinion, a classic piece of Sudanese constitutional precedent. Although it is long and very relevant to the issue of fair trial, especially in a political Islamic context, space would only permit pointing out the following salient features pertaining to reversing the 1985 judgement:

a. Although the President had power under the Judiciary Act to constitute criminal courts, he had no power to name individual judges to try specific cases. His choice of the particular judge to try Taha raises doubt on the neutrality of the Court.

b. "The proceedings of the Court of Appeal took such an unusual course tainted with Political considerations making it difficult to trust the justice of its judgement."

The reasons for this were given as follows:

i. The court finally gave a new judgement not related to the one presented to it for confirmation or otherwise.

ii. The court exercised its powers in such a way as to make it difficult to reach a verdict supposed by the evidence. The Court's finding that the leaflet circulated by the Republicans called for a new understanding of Islam, different from the one practised by the people, is totally unsupported, and shows that the Court had from the outset decided to address the Republicans' thought, rather than the alleged charges under the Penal Code and the Security Act.

iii. Taking advantage of the trial courts' unwarranted reference to "repentance", the Court of Appeal proceeded to consider the crime of apostasy under the Sharia. Referring to the Sources of Judgements Act, the Court found that apostasy was indeed a capital offence in Islam. It proceeded from there to decide that Taha was an apostate from his deeds and sayings "known to the public at large", in so far as he did not say his daily prayers; and that a Sharia court, without having competence, had declared him an apostate in an opinion in his absence in 1968.

iv. "It would be needless for us to elaborate in describing that this finding goes beyond any principles of justice…". Whether those established and practised, or expressly provided for in the laws of procedure and the 1973 Constitution, which was then in force. The Penal Code contained no offence known as apostasy and the 1973 Constitution provided in Article 70 that no person should be punished for an act before its commission. In reaching its finding and condemning Taha for apostasy, the Court had set itself up as a legislative authority in clear contravention of the principle of non-retroactivity of penal laws, as stated in Article 70 of the Constitution. Even if the Court discovered a basis for a new charge, the least it could have done was to send the case back to the trial court or hear the accused in defence of the new charge.

c. According to Section 234 of the Code of Criminal Procedure, a sentence of death had to be sent for confirmation by the High Court, not by the lower Court of Appeal. The President's decision to give jurisdiction over the case to the latter court was contrary to the law and could very well have aimed at attaining the end result, the execution of Taha.

d. Section 247 of the Code of Criminal Procedure expressly provided that the death sentence should not be executed on persons over 70 years except in crimes of Hudud. The addition of the conviction of apostasy by the Court of Appeal could only be interpreted as a means to evade the provision of Section 247, and execute the 76 year old man.

On the basis of the above reasons the Constitutional Court declared the judgement of the Court of Appeal null and void.

One can hardly venture to add any more reasons or arguments to show how Islam and the law could be so manipulated to achieve a political objective. By executing Taha, Nimeiri and his collaborators did not only believe they were getting rid of an Islamic scholar who would continue to expose their politicisation of Islam, but they also thought they would intimidate all political opposition to their "Islamic republic". Much to their disappointment, the exercise turned out to be counter productive The shock of the nation mobilised and activated a massive popular uprising which succeeded only 75 days after the execution to bring down Nimeiri's might, after sixteen years in power.

Source: Sudan Human Rights Voice, January 1998, pp.4-5.

Sudan Human Rights Organization
BH Box 8238, London WC1N 3XX, U.K.