The Concept of Law and Justice in the Popular Sudanese Mind

This paper had been presented for promotion at the University of Khartoum. To get the full text please contact the other at babiker69@hotmail.com• The author of this Article tries to explore to what extent law is rooted in traditional Sudanese societies and whether law reflects the culture of such societies otherwise its application will be meaningless. In this context the paper addressed the following interesting issues. • Interaction of Legal Rights with Culture and Society. The paper argues that in most Sudanese traditional societies people normally do not resort to formal justice institutions and courts to settle individual and communal disputes. Resorting to courts and justice institutions as an endeavour to modernize Sudan’s legal system and has taken long time and efforts from the Condominium colonial rule. In the process, colonizers were forced to provide some concessions with regard to certain issues related to conceptual issues of law and justice. As a result, traditional leaders such as Nazirs, Omdas and Sheikhs were accorded judicial as well as executive powers in their areas of tribal responsibility based on customs and traditions. Legal proceedings were not given priority or prominence in litigations and concepts of law and justice were not affected by modern laws. However, justice, as a concept, is affected by the prevailing customs, traditions and values of the tribal community. • Evolution of the Judiciary and the law. The author argues that the Phonge Kingdom (1504-1821) followed the Maliki religious school of thought in the practice of the judiciary. However, the judiciary was weak due to lack of enough judges. As a result, the Government of Sinar set up a High Court in Sinar and the King was appointed as a Presiding Judge. Other kings presided over district courts of his kingdom. Beside this formal judiciary another type of judiciary exists called 'The Judiciary of the White Sharia' operating in rural and urban areas. This type of judiciary is based on Sharia, flexible and does not involve complicated legal proceedings. It is called as 'white Sharia' because, (unlike formal courts) the disputes between the parties are not normally tense as both parties tend to settle issues in a relaxed manner. • The author argues that it is noticeable during that period that customs prevail over both sharia law and statutory laws because customs were perceived as reflecting the real life of the people, binding, easy to apply and accepted. It was also noticeable during that period that customs contradicted sharia law in some aspects. The author has cited many examples in this respect such as denial of women their Islamic right of inheritance although guaranteed by sharia law. Also, theft is not regarded as a hudud offence but is punishable by fine (six cows) or its equivalence; adultery is punishable by fine (six cows if married or one cow if not married); homicide involves payment of diya (blood money) which is hundred cows; grievous bodily harm (GBH) resulted in broken bones or concussions is punishable by fine; insulting some body involves also fine. The author argues that the Sudanese people suffer from injustice during the Turkish rule, and the Turkish colonial administration established courts and invited foreign nationals to administer the law. • Concepts of Justice and Law in Popular Culture. The author has argued that popular culture does not pay attention to punishment or retribution. This of course has negative impact on the authority or respect of legal rules in the eyes of many tribes. In this respect, some researchers have argued that the 'Hambata' phenomenon (tribal armed robberies) is basically about challenging the authority of State and the Police. The author cited many examples how the authority of the State was challenged by some tribes. He argues that the philosophy or the objective of the law was not based on retributive justice but tries to strike the right balance between conciliation and justice. In this respect the author refers to four types of punishments; (a) religious punishments; (b) collective responsibility for wrongful acts committed by others (i.e. inflicting punishments on the relatives of the culprit rather than the culprit himself; (c) magical punishments; (d) ridiculing and socially outcast the accused. The main purpose behind these punishments is to main social equilibrium rather than realizing retributive justic