Powers: Religion as a Social and Spiritual Force

Sharia and State in the Sudan: From Late Colonialism to Late Islamism

Sharia and State in the Sudan From Late Colonialism to Late Islamism Shamil Jeppie Sharia has been a complex and powerful symbol throughout the modern history of the Sudan. Centered on the place of Islamic law, or sharia, in the legal system are a series of issues concerning the complex relations between religion and politics.1 Sharia has disrupted any boundaries between religion and politics that colonial or modern secular/ist actors have attempted to construct or elaborate. It has refused to become a ‘‘religious law’’ for the private sphere only. In the postcolonial period, sharia has always to some extent been used by some political grouping or other to advance its cause. Since law is so integral to the historical development of Islam and its practice by Muslims, even though interpretations vary vastly, some sections of the population of a Muslim country would always be open to persuasion through the call to ‘‘implement full sharia.’’ In the Sudan there has been tremendous variation and much debate and political struggle about sharia as a protected sphere, from regulating Muslim personal law (marriage, divorce, inheritance, custody, etc.) in the colonial period to the calls for and experimentation with a ‘‘sharia state’’ starting in the 1970s. Even today, though the issue attracts less attention —partly because a peace agreement is in place between the previously warring north and south, and because of the crisis in Darfur—in the Sudan sharia and its current implementation as a system of private and public law suitable for a multireligious, multicultural country in the twenty-first century remains a question. In the first quarter of the twentieth century, the colonial state instituted sharia as a separate legal subsystem dealing especially with matters of personal law. By the last quarter of the century, the dominant political forces inside the country promoted sharia as a comprehensive system of personal, commercial, 1 49 S H A M I L JE P P I E criminal, and public law. In the first period, colonial power kept sharia in a subordinate place; in the last, the postcolonial state was increasingly forced to give sharia preeminence at the expense of other legal traditions. At the start of the century, it was marginal under colonialism; by the end, it was dominant under an ‘‘Islamic state.’’ Furthermore, various parties asserted it as the basis of the country’s constitution, attempting to turn the Sudan into a ‘‘sharia state’’ amidst ongoing civil war in the south of the country. From the beginning to the end of these periods, sharia was used in various ways by the state and those outside it to register divergent projects of political transformation. The British colonial administrators sought progressively to decrease its role, while in the postcolonial state key political actors willingly or tactically pronounced their support for sharia as the foundation of the constitution and legal system. Sharia was not only officially recognized, it was part of the structure of rule. But this was different from demands in the last quarter of the twentieth century for a state explicitly devoted to the implementation of sharia as the dominant body of law. This essay traces some of the significant issues involved in the use of sharia as a body of law in the legal and political history of the Sudan. Of special concern is the chequered history of the relationship between sharia and the state in the Sudan. Sharia cannot be studied without looking at the state and its judicial preferences. The colonial state imposed its policies and laws, and the independent state inherited these judicial traditions and a good deal of the colonial state’s political practices. When exponents of a highly modernist interpretation of the aims and scope of sharia emerged, they firmly focused their ambitions on capturing the state. Furthermore , the repressed Islamic heritage of sharia returned to take pride of place in the pantheon of laws fairly soon after the foreigners departed. Because English Common Law was a sign of British colonial domination, Sudanese independence brought with it the notion that an indigenous legal culture ought to replace the foreign one. A hybrid legal tradition was, in fact, the legacy of the postcolonial state. Instead of accepting or developing this mixture of legal traditions, certain sections of the Sudanese elite progressively called for less of the British legacy and more of the Islamic one. There were glimmers of a ‘‘Sudanese Common Law’’ in the making by the late 1960s, but this process was cut...