Harassment of Religious Communities
- Step 1. Interviewing the victims and collecting primary data
- Other cases of harassment of religious communities
- Step 2. Legal measure can be done in these cases
This article seeks to explain the harassment of members of religious communities by the official State agencies. We will try to examine these communities on an equal basis including the interpretation adopted by the State, which symbolizes the State's official religion that all Muslims should follow.
The objectives of this article are to train lawyers to do their job in defending the victims of harassment 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 Theocratic State in Sudan was based on the Muslim Brotherhood approach imposed by the prior regime in the year 1989 which is still represented in the legal system inherited by the post-revolution government as well as in official religious institutions. The legal system is based on the fundamentalist Salafi approach which adopts an exclusionary policy that regards all other communities as departing from the creed of Islam. Among the most harassed communities is the Republican Brotherhood, a number of whose members have been forced to abandon their ideology or approach to understanding the Holy Qur’an and Sunnah, in addition to have all their books confiscated by an appeal court order on 15/1/1985.
In January, 2015, the National Assembly passed amendments to the 1991 Criminal Act, adding a great deal of extremist provisions to Articles 125 and 126.
Article 125 of the Criminal Act stipulates that: (Whoever by any means publicly abuses or insults any religions or their beliefs or sacred symbols or
seeks to excite contempt or scorn against its followers shall be punished with imprisonment for a term which may not exceed six months or with fine or with flogging which may not exceed forty lashes).
The amendment kept this text and two clauses were added to it, following the amendment, this text became clause (1) of Article 125, and two other clauses were added. Clause (2) criminalizes insulting and speaking evil of the Prophet (PBUH), while Clause (3) criminalizes insulting his companions or his wives or family. The perpetrator of any of these acts shall be punished by imprisonment for a period not exceeding 5 years with flogging not exceeding forty lashes. When the act is committed for the third time, the perpetrator shall be punished by ten years imprisonment and flogging not exceeding eighty lashes.
The paradox is that the punishment for insulting or showing contempt for any of the religions is imprisonment for six months under the Article's original text which became Clause (1) after the amendment, while the punishment for insulting the Prophet (PBUH) and his Companions is five years imprisonment and may extend to ten years if committed for the third time.
Amendment to Article 126 was as follows:
(1) A Muslim is said to commit the offence of apostasy if he:
- propagates the renunciation of Islam or publicly renounces it by explicit words or an act of definitive indication,
- Publicly challenges or insults the Prophet Mohamed (PBUH), Messenger of God, in any way,
- Challenges the Holy Qur’an by contradiction, distortion, or otherwise,
- Whoever generally blasphemes the Companions of Prophet Mohamed, Messenger of God (PBUH), or their successors, Abu Bakr, Umar, Uthman, or Ali.
- Speaks evil of Aisha, Aisha, regarding what the Holy Qur’an stated her innocency
The amendment added five other cases to the crime of apostasy and intensified the punishment, so it would not lapse in some cases by mere repentance. Also, the judgment that whoever speaks evil of the Companions is an apostate and punishing him by death, or punishing whoever insults or speaks evil of them by five to ten years imprisonment with flogging reflects the State's orientation to antagonize the Shiite sect in Sudan. However, this text was serving as a trap for anyone approaching Islamic history in any other way, since it is no longer possible, for example, to challenge Abu Hurairah's personality, the way he narrates the Hadiths and claim that he fabricated many of them, a belief held by thinkers and followers of other communities, for the word "challenge" is loose and has not been accompanied by any interpretation. Likewise, it is not permissible to challenge the actions of Muawiyah ibn Abi Sufyan or Abdullah ibn Abi Al-Sarh when he conquered the Nubia Kingdom, for instance, as a person will then be committing the crime of challenging the Companions. In the light of the political events that took place after the year 2013 and which cannot be detailed here, it seemed that the aim of these amendments was to target and harass the Shi'a sect in a new political orientation for the government of Sudan. But the loose formulation of the amended texts made them a trap for many persons and sects. One practical application of these amendments was the case filed against a preacher in the year 2016 after he mentioned a phrase in the Sudanese vernacular while speaking about the Prophet (PBUH). The phrase was interpreted as inappropriate and considered a sort of insult and challenging of the Prophet (PBUH).
In 2020 the article of apostasy is abolished.
Step 1. Interviewing the victims and collecting primary data
Harassment of certain religious groups or communities is a serious crime and has very bad effects on these groups or communities. Therefore, the lawyer must exercise caution and give priority to the safety of the members of these communities and to himself. When the lawyer is interviewing the victims of harassment, the lawyer must ask them or their representatives about the exact facts that occurred, the date of their occurrence and the effects that they had, and to know the desire of the victims to confront the case and defend their beliefs and ideas, or whether he fears extremists for himself, all for the purpose of assessing the risks that these victims may face, both in and out of court.
Muslim and Christian religious communities have been a victim of various forms of harassment that intended to weaken and curtail their activities and which have been practiced by a large number of State institutions. Examples include the solid plan in which the National Intelligence and Security Service (NISS) cooperated with the Ministry of Endowments and Religious Affairs, which, was established after the secession of South Sudan. The Ministry of Endowments and Religious Affairs appointed new boards for a number of Christian denominations, such as the Evangelical Presbyterian Church, Christ Church, Pentecostal Church and others, it was a selected membership of the National Intelligence and Security Service and the Ministry of Endowments and Religious Affairs that concluded long-term lease contracts for church properties and carved out large areas of it, as well as disposed of an estimated number of real estate and property in an apparent attempt to gradually demolish them.
Clashes occur Often, between the police, who enforce these sentences by force, and the believers who refuse to demolish their churches, resulting in complaints of obstacle to a public official.
Other cases of harassment of religious communities
- In 2015, (27) defendants from the Qur'ani sect were brought to trial on charges of apostasy and forced to abandon their ideology. Large numbers of them were subjected to persecution, monitoring, and arbitrary arrest.
- The closing down of the Husseiniyyas relating to the Shiite sect by the (NISS) and confiscating the books therein.
- Banning the supply of books for the Shi'a and other targeted communities.
- The repeated arbitrary detention of leaders of these communities without clear legal justifications.
- filing lawsuits related to the state security, such as undermining the constitutional system of the leaders of these sects.
- Banning the cultural and social activities of members of these religious sects and subjecting them to continuous monitoring.
- Banning church schools from working on Saturdays (the weekend is on Friday and Saturday) to force them to work on Sundays, or to be satisfied with four school days, which has led many students to leave church schools.
- Adopting a discriminatory curriculum against non-Muslims, and not teaching any religion in schools other than Islam.
Thus, the examples make it clear that targeting religious communities is carried out through legal means and methods that do not directly take the form of religious issues, but rather by circumvention of laws in order to bypass the principles of human rights in general and religious freedoms in particular. Therefore, as lawyers and defenders of religious freedoms, we find ourselves before legal complications that were arranged behind the scenes in order to legalize the violations that took place and to cover up violations of religious freedoms by claiming that they are nothing more than ordinary legal cases, and in most cases, either civil, criminal or administrative.
Step 2. Legal measure can be done in these cases
In the case of arbitrary arrests that happen without filing a criminal case under the 1991 Criminal Procedure Act, the most appropriate procedure is to submit an application (the right to appear before the natural judge, or Habeas Corpus) before the Constitutional Court, especially if the arrest was amid unclear circumstances, or in which torture or any violation of human rights was likely to take place. This application shall be promptly submitted against the entity that carried out the arbitrary detention. If the person arrested is referred to the prosecution or the court, the advocates shall start the defense in accordance with the usual procedures, focusing at all times on challenging the validity and acceptability of evidence obtained during detention, as it is considered obtained via incorrect procedure. In the event that the accused is arrested in accordance with the Criminal Procedure Act, i.e. after filing the criminal case, it is necessary to follow the usual procedures in defense of the accused with an emphasis on raising the issue of religious freedoms whenever the case reveals the purpose behind criminal prosecution against a member or members of a specific sect.
Civil cases differ greatly in the facts of each case; therefore, it is difficult in practice to develop a specific concept to assume defense of religious communities that suffer any kind of violation. It's also - communities – are often claiming, in general, the following points can be noted:
- Taking into account the time factor upon learning of the specific legal violation and taking the necessary initial procedure to avoid expiration of the procedure's prescribed time for the Civil Procedures Act of 1983 sets a time limit for each procedure.
- It is essential to observe proper legal procedures in handling the case, as it is known that procedural errors can result in loss of rights.
- Attempting to link the facts of each case with the hidden target of the entity that filed the case or against whom the procedures are to be initiated.
- These types of cases, most of the time - consumes a lot of time, in addition to financial expenditures. Therefore, the lawyer must make sure that the prosecution is aware of and prepared for this matter.
A government institution may take a decision against a certain sect by limiting its activity or closing down its places of worship or other decisions of an administrative nature. Therefore, the administrative decision must be appealed before the judge of the appeal court or the court judge in line with the procedures that will be explained later. In general, these are the basic guidelines in terms of the merits and procedure.
1. The merits
Initially and after studying the facts, the defect in the administrative decision must be identified in a manner that such identification not exceed the four cases stipulated by Article 6 of the 2005 Administrative Justice Act, which reads:
1/ Incompetence of the entity issuing the decision, 2/ defect in form, 3/ violation of law or error in its application, 4/ abuse of power.
Afterwards, we indicate in the petition the case we rely on among these four.
2. The procedure
Initially, the administratively available grievance methods must be exhausted within a period not exceeding one month between each grievance. Following issuance of the decision by the highest administrative authority, the Attorney General must be notified within sixty days from the date the administrative decision is issued. Once the permission is obtained or two months have passed since the date the Attorney General received the notice, the petition must be forwarded to the court within sixty days after knowledge of the date the decision is issued by the administrative authority. The notification period of the Attorney does not count according to the provision of Article 5 of the law.
The appeal shall be submitted to the competent Supreme Court judge in the event of decisions issued by the President of the Republic (the current Sovereignty Council), the Council of Ministers, or any national minister. The appeal shall be submitted to the Appeal Court judge competent of any administrative decision issued by a public authority, whether it is the President of the Republic, the Council of Ministers, or any national minister.