Apostasy - the crime of Riddah
- Step 1. Interviewing the victim and collecting primary data
- Step 2. Stage of investigation and trial
- Intervening as representative of the accused
- Step 4. Conducting pleading in the court
- Step 5. Appealing decisions affecting the interests of the victim
The recommendations proposed are designed to help practicing lawyers in protecting the right to freedom of religion or beliefs of a Muslim person facing the death penalty as a result of changing his/her religion or sect or abandoning it. In such a case the accused person will be tried under article 126 of the Criminal Act 1991 (Apostasy crime). The objectives of this text are to train lawyers to do their job in defending the victims of freedom of religion and belief violation and to enhance their role in facilitating the investigation of such cases and ensuring the protection of the rights to freedom of religion or belief.
The article aims in particular to clarify the necessary procedures that the lawyer must follow while defending a person who has been brought to trial for this reason and to introduce him/her to the constitution, regional and international charters that must be relied upon in opposing laws that restrict a person’s freedom to change his/her religion or sect, and how to write legal memoranda in the various stages of litigation.
Despite the abolition of apostasy crime under the Law of Miscellaneous Amendments in 2020 after the December revolution and its replacement with an article that criminalizes 'Takfir’, the careful study of the article, in our opinion, is very important, especially since many other relevant articles of the law, which deprived those who change their religion of the basic rights the legislator neglected when abolishing the crime of apostasy and they are still in force. The crime of apostasy – which passed through several stages before being abolished must be understood and also the circumstances that led to it, in the hope of being re-introduced into the criminal law after the end of the transitional period.
Before the year 1990 that renunciation of one's own religion was not constituted a legally punishable act in Sudan. Despite this, the Sudanese courts witnessed several trials for Mr. Mahmoud Mohamed Taha, the leader of the Republican Party and the Republican Brotherhood in Sudan. Those trials led to his execution in 1985 despite the absence of any text criminalizing apostasy. The court resorted to the law of judicial provisions which allows the judge to apply Islamic law, even though the law does not clearly provide for it.
Those trials were marked by explicit violation of the provisions of law and proper procedures because apostasy was an unfamiliar crime in the Sudanese legal system. The trials started before the Sharia Court in both cities of Khartoum and Port Sudan and the Sharia Court in Khartoum issued a decision in 1968 announcing the apostasy of Mr. Mahmoud Mohamed Taha, confiscating his writings, in addition to another ruling that implied the divorce of his Muslim wife. His last trial was held in the year 1985 before a criminal court known at the time as the Emergency Court, which sentenced him to death. The sentence was carried out in January 1985.
In 1991, changing one's religion was considered as a crime under the term (apostasy) in Article 126 of the 1991 Criminal Act. This article was amended in the year 2015 by adding actions deemed by the legislator to represent apostasy, such as insulting the Prophet Mohamed (Peace be upon him), his companions and his wives. By such a provision, the legislator meant to restrict the Shia sect in Sudan, something that prompted the Parliament to amend Article 126 of the Criminal Act.
Here, we notice that the amendment of the article expanded the reasons for apostasy, and it is noteworthy that there is a historic juristic controversy among different Islamic schools (the People of the scripture, Sunnah), (Quranists), (Shiites) and others. As such, the article become not just a restriction of some of the Islamic groups but rather made the Sunnah School the standard for true piety in Sudan.
We also note that the legislator added other penalties, such as flogging and imprisonment.
In the year 2020, and in a positive development, the crime of apostasy was abolished and a text criminalizing ‘takfir’ replaced Article 126, but the amendment was isolated and did not include the abolition of other related articles, depriving those who change their religion of basic rights; for example, the text of Article 145/3 of the Criminal Code, which turns the marital relationship into a crime of adultery if the husband is not a Muslim, and accordingly, any subsequent children are known as children of adultery according to the text of Article 406 of the Personal Status Law for Muslims of 1991, and it is not permissible to inherit between them due to the differences of religion in accordance with Article 351 of the same law.
Step 1. Interviewing the victim and collecting primary data
The crime of apostasy, is classified through three decades, among serious crimes for it is punishable by death, in addition to being a crime of high sensitivity to theocratic regimes where defendants are subjected to a process of monitoring and harassment even if acquitted by the court. Therefore, the lawyer must exercise caution and give priority to the safety of the accused, his family, the members of the group or sect with which he is associated, and also to himself. Unfortunately, many victims of religious freedom were subjected to arrest, torture, property confiscation and other forms of violations, forcing many of them to leave the country.
When the lawyer meets the accused, she/he has to ask the accused about his/ her full name, religion, job, address, the date of arrest and any other information about the case. Then the lawyer has to give the accused enough time to talk about the facts of the case and his thoughts, The lawyer must clarify all the possible legal possibilities, and other practical difficulties, some of which we discussed above, and assess the risks that the accused may face, whether in court, or outside the court if he is released acquitted or renounced his belief or ideas.
The essence of the crime of apostasy in the Sudanese Criminal Act is to prevent a Muslim from declaring renunciation of Islam to embrace another religion or to turn to atheism. Subsequently, this criminalization expanded to include sects contradicting the sect with which the ruling authority is affiliated and this type of criminalization is the most common in Sudan and the Islamic world as a whole. For example, the Quranists Group was tried at Al-Nasr Court in Khartoum in 2015, and before that the group of Republican Brotherhood were tried and the group's leader was executed as mentioned above.
The Sudanese Criminal Act provided for several penalties regarding apostasy, the first of which is execution given that the accused insisted on his apostasy after being asked to repent or refused to abandon his ideas or affiliation to a religious sect that the court consider out of Islam. But if the apostate repented, or gave up his ideas, he will face no punishment unless he insults or speaks evil of the Prophet Mohammed (peace be upon him), his companions, or his wives. In such a case, the death penalty will be dropped and the person shall be sentenced to no more than five years imprisonment or flogging (the law does not specify the number of flogs).
Apostasy, in this sense, constituted a clear violation of the freedom of religion, belief and thought, and its abolition while maintaining the above-mentioned texts is a continuation of this violation, contrary to the constitutional document and international human rights covenants ratified by Sudan. On the other hand, the Sudanese legal system implies a clear preference of the Islamic religion over other religions and that the State does not treat all religions and beliefs equally. One proof of this is that whoever renounces his religion or belief and embraces Islam becomes welcome and given a financial grant by the State known in the Zakat Law, article 38/1, as “those whose hearts are to be reconciled”.
Step 2. Stage of investigation and trial
As we mentioned earlier, the crime of apostasy was punishable by death, and therefore the accused could not be released on bail according to Article (106) of the Criminal Procedure Code of 1991, which means that the accused will be seen in custody. Accordingly, lawyers often face a problem in meeting the victim, although the accused is imprisoned in the prison, which means that the permission should be issued by the prison administration, the accused moves from the police custody within three days from the date of arrest, but the prison administration has often disclaimed its role in such cases, and requests permission from the prosecution or the court, depending on the case. In any case, the lawyer can submit the request to the aforementioned bodies, which do not have the right to refuse.
The accused will remain imprisoned on waiting during the investigation and trial period. So, the lawyer at this stage must alerting the accused to adhere to his constitutional and legal right to embrace any belief or religion or belonging to any sect within the particular religion, and to clarify all the details, including his right to withdraw, if he wanted, it is a right guaranteed to him at any time before the execution of the death sentence, in case of conviction.
The case must be presented to the head of the competent judicial authority if the detention lasts for six months, and in many cases this procedure is done routinely without scrutiny, and sometimes it is not. Here, it is better for the lawyer to submit a request to the court or the prosecution to present the case to the head of the judiciary, stating the reasons and arguments that support his request and convince the head of the judiciary to exercise his discretion in releasing his client.
Intervening as representative of the accused
According to Advocacy Act of 1983, the licensed lawyer is considered a public attorney and has the right to represent clients without any need to show a power of attorney or any other document to the court.
Generally, in cases of apostasy, we advise the lawyer to take one of these two actions:
- To submit a petition to protect a constitutional right before the Constitutional Court and ask the Court to issue an immediate order to suspend the case proceedings before a first-instance court until the constitutional case is adjudicated. The lawyer must clarify in the constitutional petition the constitutional rights that had been violated according to the facts of the case in question. At the conclusion of the petition, the lawyer shall ask the Constitutional Court to dismiss the criminal case against the accused and declare that Article 126 of the 1991 Criminal Act is unconstitutional.
- To continue to refute the charge of apostasy, using all legal means available before courts of various instances, including the Review Chamber of the Supreme National Court. Afterwards, the lawyer can submit a constitutional appeal before the Constitutional Court, after exhausting all stages of litigation provided by law.
The lawyer must base his opposition to apostasy on the texts related to religious freedoms and freedom of belief and thought stipulated under the provisions of Article 56 of the Constitutional Document and international human rights covenants ratified by Sudan, and to show the contradiction between criminalizing apostasy and these texts.
In our own discretion, the second option is more prudent if we considered that the Constitutional Court often takes the failure to exhaust available grievance methods as a reason to dismiss the case and prevent questioning the constitutionality of laws based on Islamic law.
Unlike most criminal cases, the verdict of acquittal in such cases does not mean celebrating a victory. Rather, it often puts the acquitted person in the face of extremist groups that did not prevent them from killing this person except waiting for the death sentence from the court, which puts him in direct confrontation with them; especially in countries where religious extremism is spreading, which in turn leads to extrajudicial killings by these groups. In this type of cases, death threats by extremists increases, especially if the court declares the accused innocent of the crime of apostasy. In such cases, the lawyer must file a complaint of the threat to the accused in order to provide protection for the accused, and the same applies to defence witnesses if they are exposed to the same danger.
Step 4. Conducting pleading in the court
During the trial process before the court, the lawyer uses his/ her legal and technical skills to cross examine the complainant and prosecution witnesses in order to refute the prosecution case, and also submit the necessary documents that support the defence case. The lawyer has to meet the defence witnesses before the hearing in order to take the brief and select the witnesses with useful information.
Criminalizing apostasy is one of the most controversial issues in Islamic jurisprudence, and many of Muslim scholars do not support criminalization of apostasy, especially the excommunication of some Islamic sects. As we mentioned above, the state adopts the fundamental ‘Sunni Madhab’ as an official understanding of Islam, and accordingly, many Islamic sects are considered non-Islamic sects and their followers may be tried under apostasy crime. So, lawyers are strongly advised to hear witnesses from Muslim scholars who disagree with the idea of excommunication of sects and to submit their books and article as defence documents in order to support the court to take judicial notice of these arguments.
In addition to this, lawyers must mention in their final arguments every decision made by human rights bodies whether regionally or internationally, such as the General Comment 22 made by the Human Rights Committee which provides clearly for the right to change one’s religion.
Step 5. Appealing decisions affecting the interests of the victim
The Public Court is only court that has jurisdiction to try cases involving crimes punishable by death according to article (106) of the Criminal Procedures Act 1991. So, if the Public Court convicted the accused persons of committing apostasy, the lawyer has to appeal this decision to Court of Appeal within 15 days from the date of decision.
If the Court of Appeal supported the decision of the Public Court, its decision should be appealed to the Supreme Court. And if the same happened by the Supreme Court, then the appeal should be submitted the Review Circuit at the Supreme Court.
Finally, after the exhaustion of these stages of litigation, the lawyer shall submit a constitutional action before the Constitutional Court claiming the Court to declare unconstitutionality of article 126 of the Criminal Act 1991 and to declare the innocence of the victim.
In this constitutional action, the lawyer shall rely on the Constitutional Document, article 18 of Universal Declaration of Human Rights, the African Charter and article 18 of the International Covenant on Civil and Political Rights because he signed and ratified them and therefore, they are binding to the Sudanese courts in accordance with article 14 of the constitutional document.
Finally, since apostasy has been abolished, the sword of accusation under the text of Article 145 is still hanging on the head of those who change their religion, as well as the nullification of marriage and deprivation of inheritance and other rights, the best way, in our estimation, is to resort to the Constitutional Court, which has jurisdiction to declare these texts unconstitutional. It discriminates between citizens on the basis of religion as well, and as we have said, preparing for legal battles in courts is very important and paves the way for constitutional appeal, including the African Commission on Human Rights and the Human Rights Council, which is the main battle to abolish discriminatory texts, not only for the benefit of the client, but for all people.