Alula Berhe Kidani / Najat Ahmed / Photo: Al-Sir Mukhtar
This workshop on religious freedoms in Sudan is a clear manifestation of a constructive engagement process between Sudan and the US.
The Ministry of Foreign Affairs organized a very important workshop on “Religious Freedoms in the Sudan” on 29 Jan, 2019 in which many important papers were presented in the working session which we will try to focus on in this article. This is the second part of the first paper presented in the Workshop by Dr. Ali Suleiman Abdalla (former Dean of the Faculty of Law in the University of Khartoum )on; “Freedom of Religion and Belief in the Sudan: Constitutional and Legal Perspective”.
In discussion of this subject , reference have been made to three sections in the Criminal Law Act 1991,vis section 125 (Blasphemy), 126 (Apostasy), 152 ( dealing with public morality), I intend to discuss them here in the same order.
In England, the offence of blasphemy, until its resent repel, is only sought to protect Christians of the established church, i.e. the protestant faith insults to the established religion of the state were punishable, similar attacks on other religions, such as Judaism or Islam or even Catholic beliefs were not punished as Muslims in the recent controversy over Salman Rushdie’s Satanic Verses.
Originally, the offence was raised before the religious courts, but eventually the Common Law Courts took over. Initially, some of those courts spoke of Christianity as “ parcel of the Common Law”, but cases in the 20th Century turned away from such interpretations and saw the objective of the of the offence in seeking to prevent breaches in the public order. Such a position was clearly stated by Lord Parker of Waddington, when stated in Bowman v Secular Society (1917) “there must be an element of vilification, ridicule or irreverence as would likely exasperate the feelings of others and so lead to a breach of the peace”. But if the decencies of controversy were maintained all religious matters can be the subject of discussion.
In India, long before Macaulay drafted the Penal Code ,he has expressed views I Parliament on the defects in the blasphemy in Britain then. One of his concerns then was the protection of the law was not extended to other religions. He maintained then that had he been a judge in India , he would not hesitate in punishing a Christian who would defile a mosque. So, drafting the Indian Panel Code ,he took notice of the multi religious nature of the society in India. As a law commissioner he said:
“ We had two objectives in mind, we wish to allow fair latitude to religious discussions, and at the same time , to prevent the professors of any religious offering under the pretext of such discussions, intentional insults to what is held scared by others”.
This we find, 298 Indian Panel Code stating:
“Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or make any sound in the hearing of that person or make gesture in the sight of that person or places any object in the sight of that person, shall be punished of either description for a term which mat extend to one year, or with fine, or with both”.
So from this it can be seen that offence of blasphemy can only be committed if what is done was done with the intension of wounding the feelings of others. Thus fair criticism would not fall within the area proscribed by this section. But a deliberate intension can still be inferred from the language used.
Further, amendments to the Indian Panel Code were later introduced that extended the protection from any abuse to “any class of citizen in India” (s.295A. Indian Panel Code) . There is also section 153A which punishes acts that seek to promote enmity between groups, race, place of birth, residence, language, etc…, or the doing of acts prejudicial to the maintenance of harmony.
In Sudan, contrary to what you have read somewhere else, the Penal Code was first enacted for the Sudan by the Condominium Government in 1898, that code did not include a provision on blasphemy. Such a glaring omission did not escape the notice of a British writer who commented on that code at that time. He believed the omission was “ no doubt premeditated ”. The absence of such a provision ,he maintained , “ gives both the enthusiasts of Islam and Christianity freedom on proclaiming the demerits of their respective faiths”.
When I first read this, I started to wonder if that was really the intension of the British Administration in Sudan. The limitation which the Sudan Government placed on the activities of missionaries at the time would suggest that such was clearly not the intension of the Government. Indeed, the Government managed to persuade the missionaries to move south, where people where still practicing their traditional African Beliefs.
What worried the Government of Sudan in those days was what it saw as an unorthodox Muslim teachings and Sufi orders. In particular it was worried about the possible resurgence of Mahdist beliefs, The Administration as is well known, established an official Board of Ulemma to advice in Muslim affairs .One of the concerns of the Administration then was what to do about those Mahdest who were gathering people to read the Ratib of the Mahdi, a compendium of Kuranic verse and traditions. It was even suggested then that they could be tried for sedition. Realizing that might not be easy to prove, the Administration thought of enacting a law on “ preventive detention” to use against the Mahdist. Such a law was indeed never enacted.
Eventually , as all know ,good relations developed between the British Administration and the Ansar, followers of the Mahdi. The starting point may be have been the fact that the Administration needed Sayed Abdelrahman , the son of the Mahdi, in its efforts to build support for Britain in its war with Turkey.
By 1925, a re-enacted Panel Code was issued carrying a section punishing insults to religion. This section, s. 242 Sudan Penal Code stated:
“Whoever by any means publicly insults or seeks to excite contempt of any religion in such a way as to be likely to lead to breach of peace, shall be punished for a term which may extend to two years or with fine or with both”.
The section was not limited to mere verbal or written insults on religion, and unlike the Indian provision ,it extended to the doing of anything that may cause such insults. In the Sudan, too, protection was afforded to all religions. However, it was not necessary to prove “ a deliberate intention to wound the religious feelings” of others, if what was done publically and is likely to cause a breach of the peace, is insulting to religion, any religion then it is punishable as blasphemy. Despite this, it could still be argued that the section still aimed at drawing a line between religious controversy and unwarranted vilifications.
Currently ,the offense of blasphemy is governed by section 125 of the Criminal Act 1991 as amended in 2015. This section states:
“ (1) Whoever publicly insults or degrades , in any way, any of the religions, creeds , beliefs or the scared rights thereof, or strives to incite the feeling of contempt and degradation of the believers, thereof, shall be punished with imprisonment for a term not exceeding six months, or with fine , or with whipping , for a number of lashes not exceeding forty”.
Section 125 (1) as it stands today was originally the previous section 125 before the 2015 amendment of the Criminal Law ACT 1991. The objective could be seen as seeking to protect all religions from public insults or degradation. Striving to incite feelings of contempt or degradation among the believers of such a religion is also punishable. Query whether a breach of the peace is necessary, but by limiting the offence to public acts that amounts to an insult or degradation of a particular religion , it is arguable that there is still a margin for public discussions that are not insulting or degrading to a religion or its believers. But one wonder if the protection could also be extended to what the 1973 Constitution referred to as the “noble aspects” of traditional spiritual beliefs.
The rest of the provisions that now form part of section 126 were all added by the amendment of the Criminal Law Act 1991 in 2015. The new provision deals only with attacks that might be made against Islam.
The question that comes to mind could not such offence be covered by the first part of the section 125 as it originally stood. And while the original section sought to protect all religions from insults , why did the provisions seek to draw a line between Islam and other religions ?. And if one wonders why is such an offence limited to deeds or a utterances by non-Muslims , the answer will be provided by the 2015 amends to 125 (apostasy) that such acts by Muslims will amount to the crime of apostasy.
One is really at loss thinking about what promoted those amendments, and considering the timing of those amendments really necessary? I leave it to you to reflect on this.