Alula Berhe and Najat Ahmed
The Ministry of Foreign Affairs organized a very important workshop on “Religious Freedoms in the Sudan” in which the representatives of the Senior Advisor to the UK Archbishop of Canterbury, Italy SANT’ EGIDO, the USA Charge d’affaires in Sudan and the Sudan Christian Community addressed the workshop. A full coverage of the opening session is on Sudan Vision page One. But also very important papers were presented in the working session which we will try to focus on in this article. The first paper presented was by the former Dean of the Faculty of Law in the University of Khartoum Dr. Ali Suleiman Abdalla on the; Freedom of Religion and Belief in the Sudan: Constitutional and Legal Perspective.
Dr. Ali said that the Paper seeks to examine the constitutional framework for the protection of religious freedoms in the Sudan and, on the bases of exposition, and then look into the limitation imposed by the law, on the exercise of such freedom.
The paper is presented in acceptance of Article 18 of the ICCPR (International Covenant on Civil and Political Rights) as part of such constitutional tools available for examining the propriety of any limitation imposed by the law.
As known to all here, the Interim National Constitution (INC) , is a product of protracted negotiations between the government of Sudan and the Sudan People’s Liberation Movement (SPLM) that resulted in the Comprehensive Peace Agreement (CPA). As a result special care has been in this constitution to reflect the religious, cultural and ethnic diversity of the country.
To begin with, in the Preamble to the Constitution and I hope it is still part of it, the people of Sudan asserted that they were “mindful of religious, racial, ethnic and cultural diversity”. They were therefore committed to establish –inter alia- “ a system of government in which power shall be peacefully transferred and to uphold values of justice, equality , human dignity and equal rights and duties of men and women”. They also committed themselves –inter alia- to “promotion of social harmony, deepening of religious tolerance and building trust and confidence in the society generally”.
Such aspiration was then reflected in many of the provisions of the INC. The first article of the constitution entitled, entitled the “Nature of the State”, asserting in its first sub-article, that the Sudan is “a democratic, decentralized. Multi-cultural, multi-lingual, multi-racial , multi religious country where such diversity coexists”. Sub-article 2 commits the state to “the respect and promotion of human dignity ” , and asserts , “ that it is founded on justice, equality and the advancement of human rights and fundamental freedoms and assures multi-pietism”. On top of all of this sub-article 3 goes on to state: “The Sudan is an all-embracing homeland where religions and cultures are sources of strength, harmony and inspiration”.
Article 4 is with the title “Fundamental Bases of the Constitution “. It explains that the Constitution is “predicated on certain principles, one of which is that “religious beliefs, traditions and customs are the source of moral strength and inspiration for the Sudanese people”. The article also maintains that “the cultural and social diversity of the Sudanese people is the foundation of social cohesion and shall not be used for causing division.
Article 6 carries the title “Religious Rights” . Under this article the state is committed to respect the following religious rights to:
a) Worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes;
b) Establish and maintain appropriate charitable or humanitarian institutions;
c) Acquire and possess movable and immovable property and make, acquire and use the necessary articles and materials related to the rites or customs of a religion or belief;
d) Write, issue and disseminate religious publications;
e) Teach religion or belief in places suitable for these purposes;
f) Solicit and receive voluntary financial and other contributions from individuals, private and public institutions.
g) Train, appoint elect or designate by succession appropriate religious leaders called for by the requirement and standards of any religion or belief.
h) Observe days of rest, celebrate holidays and ceremonies in accordance with the percepts of religious belief;
i) Communicate with individuals and communities in matters of religion and belief at national and international levels.
Part Two of the Constitution is devoted to the “Bill of Rights”. Though Sudan adopted various constitutions since 1953 , this is the first time that the chapter embodying such rights has carried this name. The “ Bill of Rights ” consists of 22 articles comprising Articles 27-48. The first article in this chapter, Article 27 is rather unique in its provisions and can almost stand on its own as a complete chapter of rights.
Article 27 is composed of four parts and carries the title “ Nature of the Bill of Rights ” , “ a covenant among the Sudanese people and between the people and the government at all levels , central and state or local. It goes further to state that it is “ a commitment to respect and provide human rights and fundamental freedoms enshrined in this constitution; it is the cornerstone of social justice ,equality and democracy in the Sudan”. A few months ago at a public lecture at the Faculty of Law I suggested that “ this provision might be ushering the way to a horizontal impact of the Bill of Rights and that non-state actors may be subject to the terms”.
Sub-article 2 imposes on the state the duty to protect, promote, guarantee and implement the Bill of Rights. But it is sub-article 3 that touches more directly on our discussions here today, and it was on the basis of this that I opined that Article 18 of the ICCPR is now part of the constitution law of Sudan. The sub-section reads:
“All rights and freedoms enshrined in international human rights treaties and instruments, ratified by the Republic of Sudan ,shall be an integral part of the Bill”.
This clear wording that incorporate all international human rights treaties, in which Sudan is a Party, in its constitution is a clear reflection of the new spirit that prevailed in the country at the time of writing of the constitution and the high hopes entertained then of turning a new page of living in peace and harmony, with everyone fully enjoying his rights as a citizens. And although the judge of the Constitutional Court tried to argue that the provision was directed to the legislature when making laws to take such international obligation in mind. But I believe that most member of the Court , if not all , accept the provision as it stands, that Sudan commitments regarding human rights to treaties to which the country is a party ,as part and parcel of the constitution.
The first sub-title 27 (4) set clear limits on legislation dealing with any rights protected by the Bill. It states:
“Legislation shall regulate the rights and freedoms enshrined in this Bill and shall not detract from or derogate any of these rights ”.
So, this sub-article sets limits upon legislate interface with provisions of the Bill of Rights. This is important since the exercise of most rights is usually subject to the law. But this should not be allowed to mean that the law can take them with the left hand what the constitution has given by the right hand. Legislative intervention should be addressed to legitimize causes that do not unnecessarily limit the exercise of the guaranteed rights.
Article 31of the Bill of Rights emphasized equality before the law. “ All persons are equal before the law and entitled without discrimination as to race, color, sex, language ,religious creed ,political opinion or ethnic origin , to the equal protection of the law”.
So, in Sudan ,as in America , equal protection of the law is accorded to all persons . Any discrimination based on religion and belief will certainly fly in the face of this and the other provisions that I discussed. To these I will now add Article 38 on “Freedom of Creed and Worship”:
“ Every person shall have the right to the freedom of religious creed and worship .and to declare his/her religion or creed and manifest the same , by way of worship ,education ,practice or performance of rites or ceremonies , subject to the requirements of law and public order ; no person shall be coerced to adapt such faith that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent”.
So, I hope that this survey of various constitutional provisions of the Interim National Constitution (INC) has demonstrated the extent of the protection given to freedom of religion and belief in the country. Any discrimination based on religion and belief cannot be accepted within the framework that the constitution seeks to establish for the enjoyment of human rights in the country.