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The recommendations proposed are designed to help practicing lawyers protecting the right to freedom of religions or beliefs of a Muslim person facing death penalty as a result of changing his religion or sect or abandoning his religion. In such a case the accused person will be tried under article 126 of the Criminal Act 1991 (Apostasy crime). The objectives of this article are to train lawyers to do their job in defending the victims of FoRB violations 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.

Introduction

It was not before the year 1990 that renunciation of one's own religion constituted a legally punishable act in Sudan. Despite this, Sudanese courts witnessed several trials for Mr. Mahmoud Mohamed Taha, 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 executed in January 1985.

In 1991, changing one's religion was legalized as a crime under the term (apostasy) in Article 126 of the 1991 Criminal Act1. This article was amended in the year 2015 by adding actions deemed by the legislator to represent apostasy, such as insulting the Prophet Mohamed (PBUH), his companions and his wives. By such a provision, the legislator meant to curtail the Shia sect in Sudan, a thing that prompted the Parliament to amend Article 126 of the Criminal Act2.

Here, we notice that following amendment, the article elaborated on the reasons for apostasy, and it is noteworthy that there is a historic juristic controversy among different Islamic schools (the People of the Book and Sunnah), (Quranists), (Shiites) and others. As such, the article harassed some of the Islamic groups and rather made the People of Sunnah School the standard for true piety in Sudan.

We also note that the legislator added other penalties, such as flogging and imprisonment.

Step 1. Interviewing the victim and collecting primary data

The crime of apostasy is classified among serious crimes for it is punishable by death, in addition to being a crime of high sensitivity to theocratic regimes where defendants are subject to 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.

As mentioned above, apostasy crime is punishable by death, and therefore the accused person cannot be released on bail once he was arrested by police according to article (106) of the Criminal Procedures Act 19913. This means the accused person should be a remand in the police custody or the prison. So, the lawyer has to be sure that he meets the victim in a private place to secure his/ her privacy.

When the lawyer meets the victim, s/he has to ask him 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 victim enough time to talk about the facts of the case and his thoughts, because it very important to understand what does the accused think about. Also, it is important to know if the accused was threaten by extremist persons before, because the lawyer has to assess the risk inside the court and by the end of the case if the accused was declared innocent by the court.

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 Republican Brotherhood were tried and the group's leader was executed as mentioned above.

The Sudanese Criminal Act provides 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 deems out of Islam. But if the apostate repented, or gave up his ideas, the punishment lapses unless he insults or speaks evil of the Prophet (PBUH), his companions, or his wives. In such a case, the death penalty lapses and the person shall be sentenced to no more than five years imprisonment or flogging (the law does not provide for a specific number of flogs).

Apostasy has an accessory punishment which is to divorce the wife of the apostate and prevent inheritance between him and his wife and the rest of his heirs or inheritors.

In this sense, apostasy constitutes a clear violation of the freedom of religion, belief, and thought stipulated in the Constitutional Act and international human rights instruments 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 as “those whose hearts are to be reconciled”.

Step 2. Stage of investigation

As mentioned above, apostasy crime is punishable to death and the accused will continue to stay in custody during the stage investigation and trial, so the lawyer has inform him or her to adhere to his constitutional right to change his religion, abandon religion or to affiliate to any religious sect. And s/he shall refrain to mention any facts that may put him at risk if s/he was taken to the judge for judicial confession at the stage of investigation according to article (16) of Evidence Act 19944.

Step 3. Intervening as representative of the victim

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 cross 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.

In such refutation, the lawyer shall rely on texts relating to religious freedoms and freedom of belief and thought stipulated in the Constitutional Document5 and international human rights instruments ratified by Sudan, and endeavor to show the contradiction between criminalizing apostasy and these texts.

In our own discretion, the second course of action is more prudent if we considered that the Constitutional Court often takes the failure to exhaust available grievance methods as a reason to write off the case and prevent questioning the constitutionality of laws based on Islamic law.

Step 4. Taking measures to ensure safety of the victim and witnesses

Religious extremism is widely spread in Middle East and North Africa, the thing which leads to extra-judicially killing conducted by extremist groups. In cases of apostasy, many fundamentalists threat the victims and their witnesses and promise through media to kill them especially if the court declared innocence of the accused person. In such cases, the lawyers have to report these threats to the police, and they should take the issue seriously and track the perpetrators by police in order to protect the victims and witnesses.

Step 5. Participation in criminal and (or) misdemeanor proceedings before 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 defense case. The lawyer has to meet the defense 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 defense documents in order to support the court to take judicial notice of these arguments.

In addition to this, lawyers shall mention in their final arguments any decisions made by human rights bodies whether regionally or internationally, such as the General Comment 22 made by the Human Rights Committee6 which provides clearly for the right to change one’s religion.

Step 6. 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 19917. 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 day 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, Universal Declaration of Human Rights (article 18), the African Charter (article..) and the International Covenant on Civil and Political Rights (article 18).