Religion (1986) 16, 197-224 THE ISLAMIC LAW OF APOSTASY. AND ITS MODERN APPLICABILITY A CASE FROM THE SUDAN Abdullahi Ahmed An-Na’im On 18 January, 1985, the Sudanese Muslim reformer, Usladk (revered teacher) Mahmoud Muhammad Taha, was executed in Khartoum, Sudan. Specified at the criminal trial were charges of offenses against the state under the Sudan Penal Code, 1983, and the State Security Act, 1973. In separate actions, The Special Court of Appeal and former President Nimeiri confirmed conviction and sentence, however, not only for the secular charges specified at the criminal trial but also for the Shari’ religious offense of apostasy—the renunciation of Islam by a person known to have been a Muslim. ‘The entire episode brought to the surface questions about President Nimeiri's attempts to govern the Sudan by imposing traditional Sheri’a religious law. In the case of the execution of Ustadk Mahmoud, this involved silencing an outspoken critic. But Nimeiri’s introduction of the Shari’a into civil contexts seemed also generally aimed at other segments of the political opposition. ‘Questions of the bizarre legal and judicial proceedings attending this complex episode also arise, and will be discussed in due course. However legal chicanery and political motivation may have figured in Ustadh Mahmoud's execution, even larger issues are at stake, Ustadk Mah- moud’s case has implications for universal human rights and civil liberties. ‘Fhe real importance of Ustadk Mahmoud’s trial and execution is in the questions it raises about the place of the Shania ih the modern world, Especially important is the relation between sincere Muslim belief and ‘cdmpliance with laws purporting to be derived from that belief. In the Shari'a inciple of apostasy, the tension between faith and legalism is most obvious.” ‘The candid admission of this element of religious intolerance in Shari'a is an essential prerequisite for the success of any attempt to secure complete respect for freedom of religion. The author hopes to undertake the major task of contributing to the building of the theological, philosophical and legal case for ious freedom in Islam at a later stage. Meanwhile, this preliminary ‘treatment ofthe issues may be useful as an early caution to those contemplating. (0048-721/86/030197 + 27$02.00/0 ©1986 Academic Press Ine. (London) Ltd,198 A.A. An-Natin the enforcement of the totality of Shari'a law. They seem to have chosen this, course of action out of religious conviction or political expediency without being aware of the full implications of such policy. ‘Tounderstand the case of Ustadk Mahmoud, however, itis necessary togive a brief account of the legal and constitutional background and the process of 1983. The basic features of Sudan's constitutional and legal system prior to Nimeiri’s Islam- ization was not unlike that of many other Muslim countries where similar Islamization is likely to take place. Current constitutional and legal safeguards in force in their own countries should not lead Muslims to believe that they are ‘immune from facing the consequences of the Skari’a law of apostasy and other related concepts. What happened in the Sudan can happen in any other Muslim country today. LEGAL AND CONSTITUTIONAL BACKGROUND ‘The Sudan was ruled by a Turco-Egyptian administration throughout most of the 19th century until it was liberated by the indigenous religio-nationalist movement of Muhammad Ahmad al-Madhi in 1884. Britain joined Egypt in the successful campaign to recover possession of the Sudan in 1898. As the dominant power, Britain was by far the stronger partner, and managed to rule the Sudan with very litle Egyptian participation until the Sudanese took over after Independence.in 1956. During the Anglo-Egyptian Condominium, as the colonial partnership was called; and throughout the national rule since Independence, the Sudan has been administered under three concurrent systems of law, namely, the overall official system, herein termed the general territorial law, the customary laws of the various tribal groups, and Islamic Shari'a Law.! Although the general territorial law has so far been more dominant, local customs, or what may be called customary laws, are the oldest and most widely practised of the three legal systems. The indigenous Sudanese tribes and peoples have been setiling their disputes in accordance with their local customs for centuries before the advent of Islam and the rise of modern colonialism that brought the British to Egypt and the Sudan, Moreover, the manner in which Islam came into the country, with Muslim migrant tribes and Syf (Muslim mystic) religious leaders, meant that the Sudanese knew and practised what may be described as popular Islam long before any official legal administration was attempted by the Turco-Egyptian administration during the 19th century.? Some principles of Islamic law itself were no doubt adapted and incorporated into the native customary law?“ ‘The Anglo-Egyptian administration began to regulate the administration of customary law, in accordance with the colonial policy of decentralization, inThe Islamic Law of Aposiasy 199 the early 1920s. A number of Ordinances, culminating in the Chief's Courts Ordinance and the Native Courts Ordinance of 1931 and 1932, respectively, attempted to regulate the jurisdiction, personnel and basic procedure of the ‘customary law courts, These Ordinances were subsequently revised and consolidated into a single enactment: The People’s Local Courts Act, 1977. ‘The general territorial law consists of a large body of legislation enacted by the various types of legislatures the country had over the past 80 years. The reception of principles of English common law began with the enactmentof the Penal Code, the Code of Criminal Procedure and the Civil Justice Ordinance around the turn of the century. All three basic Codes, and subsequent ‘enactments regulating the various spheres of Sudanese civil and commercial life, were based on English law as applied in other parts ofthe British Empire. ‘Active adaptation and reception continued throughout the codominium through the judicial work of English lawyers appointed as judges and judicial officers.* When systematic legal training for Sudanese was undertaken on a regular basis in 1936, it was done by English lawyers using English textbooks and material : ‘Thus, when independence was achieved in 1956, the Sudan Judiciary was firmly established in the techniques and traditions of English common law. Although an increasingly poor replica,® the Sudanese legal profession continued. its nominal adherence to the common law tradition up to 1983. This general territorial law, based on principles of English common law as adapted and sudanized through generations of revisions and re-enactments,° governed civil and criminal matters in the towns and more accessible countryside of northern and central Sudan, Over the rest of the country customary law prevailed. Islamic Shari’a law, on the other hand, has been confined to the area of family law and inheritance for Muslims since the beginning of the Anglo- Egyptian administration.’ Marriage, divorce, child custody and succession for Muslims remain under the jurisdiction of Stara courts.® Although the Judiciary was supposed to have been unified under the provisions ofthe 1973 ‘Constitution and the Judiciary Acts since 1973,° the Civil and Shari'a Divisions of the Judiciary have remained divided by much more than formal administrative siderations. They belong to totally distinct and irreconcilable legal trad jons, namely English common law and Islamic Shari’ law. Although applied to the same population, the two legal systems are a world apart in terms of substance, literature and techniques. The anomaly is often emphasized in the debate over radical legal reform in the Sudan. All three legal systems, however, have always been implemented within the context of a secular constituional framework. The Anglo-Egyptian Condo- minium administration pursued secular colonial policies that maintained a very strict separation of religion and state.'° In December 1955, the Sudanese