Violation of FoRB by non-state actors 

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 ( takfirism ). 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.

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.

Legal analysis

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 19911 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).

In spite of the weakness of the penalties, but we as lawyers shall do our best to bring any case to the court, because these acts are being used now more apparently to assassinate the members of the government and to undermine the whole regime.

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 judge’s citing of what he called precedent of the government of Sudan against / Mahmoud Mohamed Taha was not coincidental, but it rather expresses a prior intention through which the judge wanted to express his rejection of the nullity of the trial of Mahmoud Mohamed Taha. It is inconceivable that one who studied law and worked for decades to be unaware of the most rudimentary rules of law. There is no precedent published in the Journal of Judgments and Case Law in this sense that the judge has argued for.

However, this extreme position cannot be read in isolation from the decision of the Court of Appeal itself which supported the Shari'a Court's ruling of Taha’s apostasy. The judges of the Court of Appeal, with their expertise, are fully aware that the proceedings do not allow the Shari'a Court to hear such types of lawsuits, but they were not impartial to the ideology of Mr. Mahmoud Muhammad Taha: they based their decisions in these two cases on prior doctrine.

We are convinced that their guides were the books of political Islam, led by Sheikh Abdul-Qadir Auda’s Islamic Criminal Legislation which was adopted by Sudanese universities and courts of justice as a basic reference in education and passing judgments. Auda states in his book Islamic Criminal Legislation Compared to Positive Law (Part II - p. 18) that: “the apostate is 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. The basis of the immunity by Islam is in the following hadith narrated from Prophet Muhammad (PBUH): {I have been ordered to fight people until they say that there is no god but Allah and that I am the Messenger of Allah. If they say it, then their bloods and money are immune unless with due right, and they will be accounted by Allah the Almighty}.  The second reason is that the punishment of the apostate in the Shari'a law is not ta'zīr (declarative punishment estimated by the judge) but a ḥadd (boundary punishment), and the ḥadd punishment in the Shari'a shall not be pardoned or delayed: the offender shall be deemed mahdoor al-dam whose execution must be carried out without delay. If any person executes him/her, s/he shall have killed a person whose blood is considered shed for transgressing the limits of Allah – a crime punishable by death, just as if he had killed a muhsan (a married adulterer). It is also mentioned on page 19 of the same book that: “originally, the execution of an apostate is the responsibility of the public authorities, but if killed by an individual without the authorization of these authorities the killer will be considered a encroacher and shall be punished for this, but not for the act of killing itself. On the same page, he said: “The Egyptian Penal Code followed the example of the positive laws from which it has been taken, as it did not provide for the punishment of the apostate.

The lack of the textual evidence does not mean that apostasy is permissible and not punishable, because the crime of apostasy is indeed punishable by death in accordance with the provisions of the Sharia law, which cannot be cancelled or repealed by the positive laws. Thus, whoever now kills an apostate shall not be punished for murder because he committed a permissible act according to the Sharia law, and used one of the rights established by the Sharia law”.

When the killers of Faraj Fouda were tried, Sheikh Muhammad al-Ghazali volunteered to testify at the court, where his testimony lasted for half an hour, saying: "For what he said and did Faraj Fouda was considered an apostate, and the apostate’s blood may be shed with immunity; and the guardian is responsible for the applying the law, and that the charge for which the youths standing in the cage should be punished is encroachment and not murder. Dr. Mahmoud Mazrou’, Head of the Department of Faith and Religions, Faculty of Fundamentals of Religion, Al-Azhar University, testified for three hours that “Faraj Fouda was fighting Islam on two fronts… He [Faraj Fouda] claimed that adhering to the clear texts of the Quran may lead to corruption, which can only be avoided by rebelling against these scripts and disabling them.  He declared this in his book (The Absent Truth), and further declared his rejection of the application of the Islamic Sharia law, and recruited himself an advocate and defender against the rulings based on the revelation of Allah. He would say: I will not allow the Sharia law to be applied as long as my heart is beating”. He used to say: on my dead body.  And such a person is considered an apostate unanimously by Muslim scholars. There is no need for a jury to decide his apostasy. The defendants said that the testimony of Sheikh al-Ghazali and Dr. Mazrou’ is enough for them even if they are executed after that.

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

Article 125 of the Criminal Act provides for very weak punishments although excommunication may lead to assassination, but the lawyers shall do their best to bring any case to the court, because these acts are being used now more apparently to assassinate the members of the government and to undermine the whole regime. From another side, the ministry of justice after the revolution is proposing amendments to many articles of the Criminal Act 1991, one of which is this article, and the act excommunication of the call to kill someone may be a crime punishable by more than 10 years imprisonment.