The Right to Places of Worship in the Sudanese Law
Muslim Brother regime which ruled Sudan for 30 years used to interrupt non-Muslims and non-Sunni Muslim sects by confiscating their lands and refusing their applications to register and build worship places.
This article aims to assist practicing lawyers who defend the right to freedom of religion or belief to help these groups to register and own worship places, and to resist these laws which restrict the right to own a worship place.
Although the preamble of the Interim Constitution of the Sudan of 2005 (abrogated) provided for religious, racial, ethnic and cultural diversity in Sudan, the right to freedom of worship and assembly in accordance with the rites of any religion or belief, the establishment of places for those purposes and maintaining them, and despite Article 56 of the Constitutional Document, which stipulates the right to freedom of religious belief and worship and declaring them via education, worship and religious practice, but most places of worship for non-Muslims and those of the non-Sunni sects cannot be registered in Sudan. Christians, Shiites, and the Brotherhood Republicans among others practice their religious rituals either in buildings devoted for worship but registered as individual property, or inside unregistered worship places in areas that were not surveyed at the time, and often in ordinary houses used as places of worship when needed.
In addition to restricting the establishment of places of worship, the government of Sudan confiscated many places of worship pertaining to Christians and Shiites during the past period and destroyed others on the pretext of re-surveying the area.
It should be noted that the law regulating land registration in Sudan is the Land Settlement and Registration Act of 1925, which did not include any discriminatory article on the basis of religion, except that Article 68 of the Act regulated the transfer of property through inheritance among Christians, while Article 69 regulated such transfer among Muslims.
However, procedures for ratifying places of worship or officially legalizing those established are still subject to government policies, and therefore subject to the discretion of the authorities which have remained biased towards a certain sect. The land authorities stipulate obtaining a permission from the Ministry of Endowments and Guidance despite that the Land Settlement and Registration Ordinance of 1925 did not provide for it, and in most cases, only Sunni Muslims obtain such a permission.
According to Article 7- B of the Sudanese Religious Affairs and Endowments Act of 1980, the Supreme Council for Religious Affairs and Endowments undertakes general supervision of religious institutions and places of worship, organizing their activities along with their optimum utilization to serve the purposes of religion in terms of worship and dealing. Matter of fact, such an authority is considered supervisory which does not involve granting permission to establish places of worship. However, it is important to indicate that the Act itself discriminates against non-Muslims, as Article 6 stipulates the goals of the Council which are to retain Islamic values and to instill them in society in terms of theoretically and practically, with the purpose of approaching God and benefiting the society. The Council seeks to preserve the nation’s cultural identity and direct it to apply Islamic approach in life with respect for the rights of non-Muslims with all the ease, progression and flexibility.
This orientation places Islam in a status higher than the other religions in the country while deliberately ignores reference to them, indicating only the rights of non-Muslims, and thus, the rejection to ratify building of places of worship for non-Muslims is not surprising. To discuss this issue in more detail, we will explain the procedures for granting places of worship as follows:
Before discussing the procedures for granting places of worship, we should point out that the law regulating the issue of lands in general and how to use them is the Urban Planning and Lands Disposal Act of 1994. However, this Act did not provide for the principles and controls for granting places of worship and how to obtain relevant ratification related to appropriation or construction. Though Article (2) of the Act indicated that all regulations issued under Acts prior to the Urban Planning and Lands Disposal Act are considered to be valid.
And speaking of the regulations concerning principles and controls of allocation of places of worship, we find that the regulation adopted by the Lands Authority is only a draft law which had never been approved till now, which is the Draft Law of Disposing of Lands for Religious Purposes for the year 1950. Although the draft law is not considered effective, but the Ministry of Urban Planning builds on it and always refers to it as a valid regulation according to the provisions of Article (2) of the Urban Planning and Land Disposition Law of 1994. It's a draft law that is suspiciously secret and all attempts to obtain a copy of it were unsuccessful. Below is a summary of the Act's most important articles related to ratification of places of worship.
Principles of allocating places of worship
In planned areas (registered lands)
In already planned lands, public facilities like schools, health centers, markets, places of worship ... etc. included in the housing plan, according to the human need of the given region, but the Ministry of Planning intentionally neglected (during 30 years or more, perhaps) allocating places of worship for some religious sects. Sudan adopts the Sunni denomination which is followed by the majority of population, therefore, we find that all the housing plans allocate most of the mosques to the Sunni denominations. This does not indicate the impossibility of obtaining places of worship for other denominations and religions, such as Christianity, for example. Despite the existence of a law explaining the procedures to be followed, but the following steps have always been taken as practice:
Recommendation of the Local Area's Public Committee
The procedures for allocating places of worship begin with the recommendation issued by the area's Public Committee after receiving an application by a religious group, body or institution. This is because local authorities first require any religious body to obtain permission from the Public Committee, which in turn studies the application to determine certain points, most important of which are that whether the persons submitting the application are residents of the relevant area, number of the body members, their area of concentration... etc). Once these criteria are available and deemed reasonable, the Public Committee must recommend allocation. The recommendation is obtained by the head of Public Committee commenting on the application by no-objection to allocating places of worship (we have no objection to allocating a mosque or church, as the case may be), provided that the application bear the signature and stamp of the Public Committee. In most cases, the Public Committee rejects the recommendation without mentioning any reasons, either by refusing to receive the application, or receiving it, seeing it and then denying recommendation. This happens when the religious institution or body subject of the recommendation is adherent to a non-Sunni denomination, such as the Shiite, Republican Brotherhood or other religion such as Christianity.
Approval of recommendation at the administrative unit and locality
The next step is the area's administrative unit approval of the recommendation issued by the Public Committee. The administrative unit may override the non-recommendation by the Public Committee and issue a holding certificate for places of worship in case the latter denied granting recommendation.
Supreme Council for Da'waa and Guidance
The penultimate step is to obtain a recommendation from the Supreme Council for Da'waa and Guidance or the Ministry of Social Affairs, as the case may be. The latter is a government body responsible for religious affairs at the state level, while the Ministry of Religious Affairs and Endowments is concerned with issues related to religious institutions and bodies at the national level (some states issue the recommendation from the Ministry of Social Affairs).
Ministry of Urban Planning
After exhausting all the aforementioned steps and obtaining the recommendation to allocate a plot of land as a place of worship, an application is submitted to the Minister of Urban Planning and Public Utilities accompanied by recommendations from the aforementioned authorities. Accordingly, the Minister has the authority of the allocation in accordance with (Article 42, Paragraph C) of the Urban Planning and Lands Disposal Act of 1994, which states that: (Taking into consideration not to prejudice the provisions of Article (45), the Minister may allocate plots at his own discretion in planned and defined lands as follows:
Allocation according to the authority of the Minister is carried out after taking into account the provisions of Article (45) of the same Act, which stipulates that disposal of government lands is permissible only after confirming that the land to be allocated is free from inhibitions, whether being registered or unregistered (i.e. subject to holding). And that the land has been surveyed and demarcated, and that the entity to be allocated the land shall pay the advance fees determined by the regulations.
Unregistered (acquired) lands
Unregistered lands are those lands subject to the holding process. They are called slums and did not undergo planning yet. Although the Civil Transactions Act of the year 1984 states in Article (1/559) that (the land belongs to God and the state is dependent on it and is responsible for it and owns its eye). Though, the same Act stated that the legal status of the rights of persons and bodiesT religious is about seizure. Seizure means holding of a specific plot of land owned by the State, and according to the law, holding is one reason for acquiring property.
We can say that owning places of worship on unregistered lands (unplanned or slums) is preceded by the process of actual seizure, which means that a group of people affiliated to a specific denomination and because of their presence in an unplanned area have seized a specific plot of land according to their need and have started practicing their own religious rituals. Consequently, the law assumes that such a seizure is one reason for owning the land and allows the holder the priority of allocation. Thus, talking about owning places of worship in unregistered lands necessarily entails talking about holding as a reason for acquiring property.
The Civil Transactions Act of 1984 defines holding in Article 1/631 as (an actual power practiced by the holding person or other person on a physical property, where in outward appearance and in the intention of the holder denotes a practice of ownership or of other rights in rem). A holding also occurs by a legal person and natural person alike, in which case the holding is represented by the legal person. This was provided for in Article 2/637.
In light of the above, the following conditions must be met in order for places of worship to own a plot in an unregistered land. These conditions are:
There shall be actual seizure of a plot of land.
The religious institution or body shall practice tenure in an undisputed and continual way.
The holding shall be for an adequate period of time in order to deserve protection, which is called the statute of limitation for ownership. This condition is not essential as for the right to obtain and own places of worship, but the law provided for it as being the sufficient period for legal protection in accordance with Article 1/4949.
Meeting these conditions does not indicate that the religious denomination or institution will automatically be granted a place of worship, but there are other procedures that must be followed and which are:
Enumeration by book of allocation
The procedures usually followed in the case of unregistered acquired lands is that the State Governor and upon the recommendation of the State Minister of Urban Planning and Public Utilities takes a decision to re-plan the area. The former announces that decision and publishes it in the Official Gazette to draw the attention of stakeholders (Article 19 of the Urban Planning and Public Utilities Act for the year 1994). Then State Governor will then appoints the Planning Officer from the Re-planning Committee (Articles 26/27 of the same Act), which is responsible for the enumeration of holdings through field survey. This field survey involves enumerating all holdings of persons actually residing, including places of worship recorded in the allocation book. The committee may at the same time hand over preambles showing the basic data (name of the holder, holding number, area, ... etc.) and which bear signature and seal of the committee. At this stage, it should be ensured that the committee has enumerated all the holdings of places of worship in the area.
What we should draw attention to is that the committee may decide ineligibility on the background of objective reasons and conditions that are usually published initially (eligibility requirements), or it may decide that a given person is not entitled. In either case, the decision is subject to grievance with the Lands Authority up to the top of administrative hierarchy represented in the Minister. Afterwards, the person may appeal the decision with the competent administrative court within 60 days of the competent minister's issuance of the decision in order to protect his tenure in accordance with the legal conditions stipulated in the Urban Planning Act of 1994 and the Administrative Law of 2005 and the regulations issued thereunder.
Drawing of lot and assignment of files
After completion of the enumeration stage by the book of allocation, the committee announces the start date for drawing the lot (the process of drawing numbers indicating the block and the plot of land for each person). Each name is assigned a withdrawal date determined by the committee, and after drawing of the lot each person is allocated a complete file containing details about his plot. Places of worship do not involve withdraw of lot, but the committee rather determines the appropriate sites according to its discretion, as they are deemed public facilities such as schools, health centers and fields .... etc.
The stages of drawing lots and assignment of files, as well as surveying and handing over the plots are the most sensitive stages which witness serious transgressions regarding the allocation of places of worship. These issues will be handled in more detail.
Survey and handing over on the ground
After the drawing of lots process is complete for all the holdings registered in the books of allocation comes the third stage of surveying and handing over on the ground, each according to the block and number he withdrew. In this stage, the committee designates the prospective sites of the places of worship, so that each denomination or religious group can practice its rites. The survey starts by removing the area and then delivery of plots by surveyors. Payment of advance fees is required according to the applicable regulations.
Signing the contract and issuance of the land deed
As for lands that have met all the aforesaid conditions and which file has been completed, the last step is the signing of the lease contracts (usufruct ownership contract), which is a step that takes time in most cases.