Violation of FoRB by non-state actors
This article is prepared to assist lawyers who defend the victims of freedom of religions and beliefs violations. The article focuses on violations committed by persons or groups do not belong to the state officially, and illustrates the legal procedures that can be taken by lawyers in order to hold those persons or groups responsible for their acts.
Also, the article shows the lawyers the best legal ways to deal with the so called ‘fatwas’ which is usually made by a person or group of persons giving confirmation to kill others.
It became a common practice that individuals are able to use any fatwa of excommunication ( takfir ) as a justification for killing others on behalf of the state, an d this practice appeared after the death of prophet Muhammad continued till now. These fatwas of excommunication were used historically to kill people on behalf of the state (Sultan). Nowadays, these fatwas are made by states, extremists and sometimes by some jurists. For example Abdul-qader Awda (a Egyptian Muslim Brothers scholar) mentions in his famous book (Islamic Criminal Legislation compared with man-made law) that the apostate person shall be killed by the governor of the Islamic polity, but if apostasy is not criminalized by the law, such as the case of Egypt, that does not mean apostasy is allowed, and that any person is allowed to kill the apostate person by himself because the act of killing is permitted originally.
The practical example of fatwas made by states and later used by non-state actors is the case of Ahmady Muslim in Pakistan. In 1974 Pakistan decreed the Ahmady community as non-Muslims, and as a result of this fatwa, hundreds of Ahmady followers have been killed by extremists.
Also, one of the apparent examples is the extra-judicial killing conducted by the so called Islamic State in Syria and Iraq (ISIS), where many innocents who were neither combatant nor armed were killed by ISIS because they disagree with their opinion.
The situation in Sudan after revolution
As explained by the above definitions, the concept of apostasy began to turn from the issue of conversion or abandoning Islam, to the issue of excommunication of Muslims themselves (takfiris). This practice is widely spread nowadays, where a Muslim or group of Muslims declares another person or sect as apostates, on the ground of the differences between these groups or sects in the interpretation or understanding of religious texts. Sudan was not an exception, as we mentioned in the fatwa article authorizing suicide operations by the Mujahideen. Sudan has also witnessed suicide operations as a result of such fatwas, for example, the Takfir wa’l-Hijrah group’s attack on a mosque in the city of Al-Thawra, Omdurman, in 1994, in which 16 people were killed, and the same group’s attack on a mosque in the city of Al-Jarafa, Omdurman in the year 2000, which killed 24, including children.
After the great revolution made by Sudanese people against the theocratic regime of Muslim Brothers which ruled Sudan for three decades, a great soliciting on religious basis Sudan began by the so-called anti-revolutions groups. Some of these groups are targeting many leaders and the new government staffs by accusing them of apostasy, excommunication or secularism which they try classify it as apostasy. For example, the vice president of Islamic Figh Academy described one of the members of the Council of Ministers as an apostate woman who does not believe in what we, as Muslims, believe in.
This hatred address is widely spread now by non-state actors and not the state itself.
Indeed, these acts are criminalized by the Criminal Act of Sudan, but unfortunately, the penalty is very simple and does not amount to the gravity of the act was used at the present time by non-state actors as a tool to fight against each other, and the clearest examples are the conflicts take place in Middle East between the different Muslim groups. For example, article 125 of the Criminal Act 1991 provides that:
(Whoever, by any means, publicly abuses, or insult any of the religions, their rites or beliefs or sanctities, or seeks to excite feelings of contempt or disrespect against the believers thereof shall be punished with imprisonment for a term not exceeding one year or with fine or with whipping which shall not exceed forty lashes).
Lawyers must do their utmost to file criminal cases, in preparation for bringing a case to court, as eliminating practices that lasted for three decades requires seriously and decisively confronting all attempts to downplay these acts that pave the way for the return of the practices of the former regime and empty the revolution of its principles, as it makes the articles of law mere useless texts.
In the case of the Government of Sudan // Against Maryam Yahya, the judge supported his ruling with what he called judicial precedents, which are some assassinations that took place in past periods such as the cases of Mahmoud Mohamed Taha, Rashad Khalifa, Faraj Fouda and Al-Hallaj . Instead of the judge denouncing these assassinations, which will remain a stigma on the brow of humanity, we find that he summons them and identifies with them, while he recites his decision to condemn Maryam for apostasy. the one who changed his religion; if killed by a person that person shall not be punished as a murderer, whether the killing took place before or after the istitabah (invitation for repentance), because every felony on the apostate is considered hadr (bloodshed with impunity), as long as the apostate sticks to his/her apostasy. The apostate is considered mahdoor al-dam (a criminal whose blood may be shed by anyone with immunity) for two reasons. The first reason is that s/he was immune by Islam, and when s/he commits apostasy from Islam his/her immunity is gone.
Based on this strict takfiri logic, the judge was not mistaken when he sentenced Mahmoud Muhammad Taha to death, nor was the judge who ruled Maryam wrong when he sentenced her to death citing what he called “the precedent of Mahmoud Muhammad Taha. He even went so far in trying to proof the veracity of his judgment by citing the assassination of Hallaj, Faraj Fouda and Rashad Khalifa. This leads us back to the point which we raised above: the difference between extremism and moderation is a difference in degree, not in kind. The extremist relies on physical liquidation directly, while the moderate uses mock justice and security services to fight the adversary, but the final result is the same.
On the other hand, the judges departed from the principles of professionalism and impartiality because they did not recognize modern constitutional and legal principles. The overlooking of the judge who ruled Maryam to the decision of the Supreme Court in the case of Mahmoud Muhammad Taha does not indicate his ignorance of the technical aspects, but demonstrates his lack of respect for the jurisdiction of the Constitutional Chamber. Strangely enough, the merits of the ruling in Maryam's case have been published in many sites, and they have gone through all stages of litigation until the Constitutional Court, yet this judge has not been held accountable for his intransigent and extremist approach. If things went with the logic of evolution following the Constitutional Chamber's decision in the case of Mr. Taha, it would have been assumed that the laws have come a long way in the area of religious freedoms. On the contrary, there was a severe setback in the direction of the legislative and judicial authorities. The first legalized the principle of takfir (considering some Muslims as apostates) to be included in the core of the Criminal Code of 1991, while the second invigorated the case of Mr. Taha, a case that was condemned by the human conscience and invalidated by the Supreme Court.
The role of lawyer
As we mentioned, protecting freedoms and rights is a burden for lawyers and they shall do their best to bring any case to the court to make sure these rights will not be derogated again. Even though article 126 of the Criminal Act 1991 excommunication of the call to kill someone may be a crime punishable by more than 10 years imprisonment, and with many extremists violating this article regularly, but after one year and a half none of them was prosecuted; this might be a result of the normalisation of such violation over 3 decades, so lawyers and human rights defenders have an essential role to spread awareness and file criminal cases before the attorney generals and courts.
Finally, the link between any violation, such as the above-mentioned attacks, and article 25 of the Criminal Act is very important as the accused would not violate others’ rights without abetment.