|Image Source: NY Daily News|
In May, a Khartoum court in Sudan found Meriam Yehya Ibrahim guilty of apostasy and adultery. She was sentenced to 100 lashes for adultery, and hanging for apostasy. The court ruled that Meriam Ibrahim’s marriage to a Christian man was invalid. As such, the court held that she had committed adultery. And since she refused to renounce Christianity for Islam into which she was born, she was sentenced to death.
Daughter of a Sudanese Muslim man and an Ethiopian Christian woman, Meriam Ibrahim denied being a muslim. She said she had been raised as a Christian as early as six after her father left them.
Her lawyers have appealed. Although there is no time-frame for lodging appeals to the court’s decisions, with the international attention the unpopular decision has attracted, it is not expected to take long. Under Sudanese laws, if the appeal fails, further appeals can be made to Sudan’s supreme court and constitutional court.
Since the conviction of Meriam Ibrahim, the international community has continued to criticise the decision. From the UK to the US, including Amnesty International, pressure is being mounted on the Sudanese government to protect the citizen’s right to freedom of religion. The UK says it’s “barbaric”. But in Sudan, the islamic community considers the conviction as being justified under the Sharia law in practice.
Is Meriam Ibrahim, a 27 year-old woman who has just given birth to another child in prison, going to be hanged? What about her individual right to freedom of religion and choice under Sudan’s constitution? Between the provisions of Sharia law and the country’s constitution, which of these two is superior? These are the fundamental issues we need to look at.
The Khartoum court has relied on the provisions of the Islamic Sharia law to justify Meriam Ibrahim’s conviction. This Islamic Sharia law has been in force in Sudan since 1983. Under Islamic Sharia law, conversion from Islam to any other religion is outlawed. The punishment, if found guilty, is death. Also, Islamic Sharia law has been recognised by the Sudanese constitution as generally binding. The Islamic Sharia law is therefore legitimate.
Meriam Ibrahim’s husband, Daniel Wani, is a Christian. He is a national of South Sudan. Muslims under Sharia law are not allowed to convert to any other religion. This law is very strict. And that’s why her marriage to a Christian was declared invalid. Being born to a muslim father, Meriam Ibrahim remains a muslim under the law.
Consequently, any sexual act with her purported husband amounts to adultery. Also, her conversion to Christianity is apostasy. In the eye of Islamic Sharia law, she remains a muslim. Her individual choice is immaterial under the law. She must be hanged. Daniel Wani was found innocent because he is not a muslim. Under section 126 of the 1991 Sudan Penal Code, apostasy is a crime punishable by death. If the conviction stands, the death sentence will still have to wait though. Sharia law as practised in Sudan prohibits the execution of any death sentence on an expectant woman until two years after she gives birth. More importantly, section 36(3) of the Interim Constitution of the Republic of Sudan provides that no death penalty shall be executed upon pregnant or lactating women, until after two years of lactation. Meriam Ibrahim who was heavily pregnant when she was sentenced has just given birth in prison last week. This means she cannot be executed until June 2016.
But there are a variety of factors that will delay her sentence. The most fundamental factor is Sudan’s legal system itself. It’s a complex one. The country’s constitution legitimises Islamic Sharia law, but not without some restrictions. These restrictions are meant to safeguard and protect the fundamental rights of individuals in the state. Where there is any conflict between the provisions of Islamic Sharia law and that of the Constitution, the latter applies. But the question is: is there any constitutional provision that can help save Meriam Ibrahim’s life, and also protect her individual right to freedom of religion and choice?
The Interim National Constitution of the Republic of Sudan 2005, in its preamble, is “mindful of religious, racial, ethnic and cultural diversity in the Sudan” and “committed to establish a decentralized multi-party democratic system of governance 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.”Section 1(2) of the Constitution states: The State is committed to the respect and promotion of human dignity; and is founded on justice, equality and the advancement of human rights and fundamental freedoms and assures multi-partism. On the fundamental bases of the Constitution, section 4 states that:
(a) the unity of the Sudan is based on the free will of its people, supremacy of the rule of law, decentralized democratic governance, accountability, equality, respect and justice,
(b) religions, beliefs, traditions and customs are the source of moral strength and inspiration for the Sudanese people
Specifically on the place of the family, women and marriage in Sudan, section 15(1) provides that:
The family is the natural and fundamental unit of the society and is entitled to the protection of the law; the right of man and woman to marry and to found a family shall be recognized, according to their respective family laws, and no marriage shall be entered into without the free and full consent of its parties.
Also section 33 of the Constitution provides that no person shall be subjected to torture or to cruel, inhuman or degrading treatment.
In section 37, the Constitution provides that the privacy of all persons shall be inviolable. No person shall be subjected to interference with his/her private life, family, home or correspondence, save in accordance with the law. On Freedom of Creed and Worship, section 38 is on point. It states that every person shall have the right to the freedom of religious creed and worship, and to declare his/her religion or creed and manifest it. Such religious belief can be manifested by way of worship, education, practice or performance of rites or ceremonies, subject to requirements of law and public order. Also, no person shall be coerced to adopt such faith, that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent.
What is more, as can be seen above, the Constitution of Sudan greatly frowns at the treatment women like Meriam Ibrahim are being subjected to in the name of religion. The citizen’s right to freedom of religion has been guaranteed by the Constitution. Section 38 of the Constitution is very emphatic: no person shall be coerced to adopt such faith, that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent. Meriam Ibrahim’s mind has been made up on the religion she wishes to belong to. She has elected to be a Christian. The Constitution upholds it. The state must respect her right. The courts will have no other choice. She is the only one who has a choice in the matter.
Apart from the Constitution of the Republic of Sudan, regional and international laws also apply. Section 17(a) and (c) of Sudan’s Constitution has entrenched foreign policy principles guarantees the rights of Meriam Ibrahim. These two paragraphs do not only promote respect for international law, treaty obligations but also enhance respect for human rights and fundamental freedoms in regional and international fora. From this international law perspective, the provisions of the The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa is applicable in Sudan. It guarantees the rights and liberties of individuals in the state. Article 3(1) provides that every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights. On marriage, Article 6(e) states that a husband and wife shall, by mutual agreement, choose their matrimonial regime. In Merriam Ibrahim’s case, since she willingly consented to marry a Christian, Islamic law can no longer govern her marriage. The purported revocation of the marriage by the Khartoum court will no longer stand. Consequently, there is no adultery.
Section 27 of the Constitution of the Republic of Sudan recognises the Bill of Rights. According to the provisions of 27(1), the Bill of Rights is a covenant among the Sudanese people and between them and their governments at every level. It is a commitment to respect and promote human rights and fundamental freedoms enshrined in the Constitution. It is described as “the cornerstone of social justice, equality and democracy in the Sudan.” Section 27(2) makes it a duty of the state to protect, promote, guarantee and implement the Bill of Rights. Section 27(3) further states that all rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of the Bill. Also, legislation shall regulate the rights and freedoms enshrined in this Bill and shall not detract from or derogate any of these rights [section 27(4)].
The life and human dignity of every Sudanese have been constitutionally guaranteed. It is superior to any customary law, whether Islamic Sharia law or other traditions or customs. Section 28 states that every human being has the inherent right to life, dignity and the integrity of his/her person, which shall be protected by law; no one shall arbitrarily be deprived of his/her life.
I greatly expect that when the appeal gets to Sudan’s Supreme Court or Constitutional Court, Meriam Ibrahim’s rights would be recognised, and the conviction of the Sharia court quashed. The Constitution of the Republic of Sudan has spoken. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa has spoken. The Bill of Rights has spoken. In the spirit and letters of these fundamental laws, Meriam Ibrahim must live.
It would be recalled that in March 2002, an Islamic Sharia court in the northern state of Katsina in Nigeria sentenced one Amina Lawal Kurami to death by stoning. It was for the offence of adultery and having a child out of wedlock. After a second appeal against thee conviction, Amina Lawal’s sentence was overturned in September 2003. The Katsina State Sharia Court of Appeal had discharged her on the grounds that she was not caught in the act of adultery and was not given “ample opportunity to defend herself”. This was after a strong international condemnation of the sentence.
Amina was not the first Nigerian woman condemned to death for a similar offence. Safiya Hussaini also had her sentence overturned in March 2002 after lodging an appeal. Sharia law is established in at least twelve northern states in Nigeria with a predominant muslim population. Meriam Ibrahim’s conviction is likely to have been overturned if it had come up in Nigeria. Nigeria, like Sudan, also has a pluralistic legal system where Sharia law and secular laws operate currently. The 1999 Constitution of the Federal Republic of Nigeria guarantees thee right to freedom of religion. Also, the provisions of the African Charter has been domesticated in the country. The court is bound to uphold it. And that is why one would have expected that given its position in Africa, the Nigerian government would have equally pressurised the Sudanese government to free Meriam Ibrahim or face sanctions from the African Union (AU).
Note: At the time of writing this piece, it was reported on BBC News that Meriam Ibrahim would be freed in a few days time by the Sudanese authorities. Abdullahi Alzareg, an under-secretary at the foreign ministry, said Sudan guaranteed religious freedom and was committed to protecting the woman.