Family Law Reform in Sudan: Competing Claims for Gender Justice between Sharia and Women’s Human Rights (2)

Samia al-Nagar and Liv Tønnessen

Introduction

This paper focuses on family law reform in Sudan—a country that has been in a state of perpetual conflct that stretches back long before its independence in 1956. The signing of the Comprehensive Peace Agreement (CPA) in 2005 between the ruling Islamist National Congress Party and the Sudan People’s Liberation Movement ended Africa’s
longest running civil war. In the wake of the CPA, activists both inside and outside of the government have particularly been preoccupied with debating Muslim family law reform.
Although the peace agreement was largely gender-blind, the interim national constitution of 2005 included clauses on gender equality and affective action (Itto 2006). Article 32 on the rights of women and children provides, “The State shall guarantee equal right of men and women to the enjoyment of all civil, political, social, cultural and economic rights, including the right to equal pay for equal work and other related benefits.” This sparked processes of harmonizing Sudanese laws to the constitution. Activists inside and outside of the government have demanded law reform on a range of women’s rights issues, such as the criminalization of female genital mutilation, the introduction of a women’s quota to Sudan’s legislative assemblies, reform of the criminal law’s definition of rape, and equality promoting changes to Sudan’s family law.
The Personal Status Law for Muslims (also called the family law in this paper) was codified in 1991. It has emerged as a highly contested piece of legislation in post-CPA Sudan to the point that it was a central topic in the 2010 election campaign and a disputed theme in constitutional reform debates in 2017. The 1991 law has been described as a backlash against women’s rights activists, as it (among other things) legalizes child marriage, stipulates a wife’s obedience to her husband, and denies wives the possibility of working outside of the home without their husbands’ permission. It builds on the principle of qawama, which loosely translates as “male guardianship.” In short, qawama projects a philosophy that a husband is obliged to support his family financially (nafaqa) in exchange for his wives’ obedience.
Attempts to reform the Personal Status Law have met resistance. The law is perceived to be “untouchable because it is literally based on Sharia.”1 Proposals for reforms to expand women’s rights that “contradicts the explicit doctrine, codified tradition, or sacred discourse of the dominant religion or cultural group,” are more likely to meet religious resistance (Htun and Weldon 2010, 210; see also Charrad 2001; Tripp et al. 2009; Htun and Weldon 2012). This includes efforts to expand women’s rights, including through the contested area of family law, that is, the body of rules governing matters of marriage, divorce, custody, inheritance, and maintenance. Family law has proved to be a difficult area of law to reform in general, but this is particularly so where it is codified as religious law, as in Sudan.
In such countries, family law reform is shaped by the relationship between the state on the one hand and religious organizations and institutions on the other. The strength of religious institutions and beliefs is inversely related to family law reform. The more powerful the country’s religious organizations, the less willing and able the state is to violate the tenets of doctrine (Htun 2003).
Codifications of Sudan’s Personal Status Law of 1991 in the name of Sharia has led to many initiatives to reform the law within an Islamic frame in order to avoid backlash from conservative religious actors. In the post-CPA era, religious conservatives may be only a select few individuals, but they are well-organized and close to those in power within the government. They are active both inside and outside of Sudan’s legislature and government institutions, and they dominate the state-controlled media. Many of these conservatives are associated with two religious institutions, the Islamic Fiqh Academy (Mujamaa Al Fiqh Al Islami), and the Association of Sudan Scholars (Haiaat Ulema Sudan), which were established in 1998 and 1999, respectively, and function directly under Sudan’s president.
Sudan stands out as the only northern African country that has yet to reform its family law to take account of changing global standards for women. This despite the fact that reform has been on the agenda of the women’s movement since the current law was fist codified in 1991. Women’s rights groups and the Ahfad University for Women took concrete initiatives for family law reform as soon as the early 1990s, when the Sudanese regime was at its most repressive. As of today, the only reform of family law that has taken place in Sudan’s history was in 1969 under the rule of Jafaar Nimeiri, when his minister of justice, Babiker Awadalla, abolished the presence of police enforcement of “house obedience”
(bayteta’a). This has been one of the few achievements within the area of family law, but it did not challenge the idea of a woman’s obedience to her husband.
Since the coup d’etat in 1989, Sudan has portrayed itself as an Islamic state built on a conservative ideology where women are complementary rather than equal to men within the family setting. This is a particularly difficult environment in which to advocate for family law reform. Religious conservatives have also had strong political influence in the post-CPA era, particularly after Sudan’s separation with South Sudan in 2011. In addition, there is a continuous competition within and between activists and reformists (within and without the government) for funding as well as praise, which makes broad mobilization for family law reform difficult. Finally, the increasingly authoritarian political environment has made it challenging for women to organize broadly.
This paper details the seemingly never-ending stream of initiatives for family law reform initiatives in post-CPA Sudan, none of which have culminated into de facto reform of the 1991 law. The analysis is based on our long-term engagement and work on women’s rights and legal reform in Sudan. The article builds on extensive interviews (in English and Arabic) from 2006 until 2017 with reformists and conservatives within the government, as well as non-governmental activists involved in initiatives for family law reform. The interviewees were recruited through the network of contacts we have created through many years of engagement with Sudanese women. We have interviewed, socialized, and had formal and informal discussions with many of the people interviewed for this study on many occasions throughout the last 11 years.

Family Law Reform in Northern Africa

There have been quite a number of major reforms in Northern Africa, despite organized opposition from religious conservatives. Some of these reforms are rather minor, like the disputed divorce reform in Egypt in 2000. Others are quite comprehensive, such as Morocco’s broad family law reform in 2004. Sudan is the only country in the northern Africa region that has not yet introduced any reforms to its family law. Consider the following examples from other countries:

Egypt

Egypt has taken a piecemeal approach to family law reform (Al-Sharmani 2010). Perhaps the most controversial reform was a 2000 change to women’s divorce rights, or khula.
Egypt’s 2000 reform differs from the classical definition of khula by allowing a woman to initiate divorce in court without her husband’s consent. If she returns the dowry (mahr) and proclaims in court that she hates marital life with her husband and fears she will fail to abide by Islam if she stays with her husband, the husband can do nothing to stop her from obtaining a divorce, at least in theory (Sonneveld 2011). The khula divorce reform was accompanied by other reforms, including the formulation of a new standard marriage contract that gave women the right to stipulate conditions (such as the right to divorce if the husband were to contract a second marriage). The reform also stipulated that a husband that fails to pay court-ordered maintenance to his wife or ex-wife and children can be imprisoned for one month. Also, the reform gave women who are in urf marriages (i.e. unregistered) the right to file for divorce. Further, in August 2000, a new marriage contract was issued.
The new contract had a blank space in which the couple could insert stipulations. In addition, in November 2000, Egyptian women were granted the right to travel without the permission of their husbands. Further reforms in 2004 also included the establishment of family courts, the creation of a family fund for court-ordered alimony and maintenance of female disputants, and new child custody laws (al-Sharmani 2009). These reforms became known collectively as the “Suzanne” laws taking the name from former President Mubarak. In other words, these laws were closely associated with Mubarak’s dictatorship and thus came under heavy file after the Arab spring. But they have not been repealed.

Morocco

In 2004, Morocco went from having one of the most conservative family laws in the Muslim world to having one of the most progressive. The Mudawana, as the Moroccan family code is called, is based on the Maliki school of Islamic jurisprudence. It was codified after Morocco’s independence from France in 1956. The original law was built on the patriarchal ideal of a male breadwinner and guardian and an obedient wife. Among other things, the law stipulated that a woman could not marry without the permission of her male guardian. It also set the minimum age of marriage at 15 for women. A husband had the right to divorce by unilateral repudiation, and he could marry up to four wives without his current spouse’s permission.
Under the new Moroccan family law, as reformed in 2004, husband and wife share equal responsibility for the family: the man is no longer required to be the main breadwinner.
Male guardianship is eradicated, and the wife is no longer legally obliged to obey her husband. The minimum age of marriage is set at 18 for both men and women. The right to divorce is now a prerogative of both men and women, exercised under judicial supervision; a husband no longer has the right to unilateral repudiation of a marriage. Polygamy was not abolished by the reform, but it was quite severely restricted by subjecting it to a judge’s
authorization and to strict legal conditions. In addition, the reform expanded women’s inheritance, property, and custody rights. It also recognized children born out of wedlock and simplified proof of paternity procedures (Pruzan-Jørgensen 2012).
The women’s movement in Morocco mobilized extensively for this family law reform and succeeded in spite of resistance from religious conservatives. A first attempt at reforming the Mudawana was initiated as early as 1991, when the Union for Feminist Action launched the famous “One Million Signatures” campaign. This made the reform drive a topic for political debate, rather than a matter to be discussed only by religious scholars (Sadiqi and Ennaji 2006, 97). An important factor in the success of the women’s movement was a shift in focus from secular to Islamic frames in arguing for comprehensive reform (Muriaas, Tønnessen, and Wang 2016; Moghadam and Gheytanchi 2010). The reform has received the blessing of Morocco’s king and is seen as the most comprehensive family law reform in Africa in the last two decades.

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