ISLAM AND CONSTITUTIONAL STALEMATE
Constitutions are usually negotiated by politicians and drafted by lawyers, but they can only be successful to the extent that they respond to legitimate demands of various segments of the population for sustained self-determination within the framework of the territorial state (An-Naʿim and Deng 1997).
The most relevant issue in the case of Sudan for the purposes of this chapter is how to reconcile the claim of the Muslim majority that the constitutional and legal system of the country must express their Islamic identity with the demands of the non-Muslim minority for equal citizenship and an equitable share in the development of the country. While it is true that the underlying causes of the protracted civil war include a complex web of political, economic, ethnic, and other factors, a fundamental ambivalence about the role of Islam in the governance of the country clearly lies at the core of the problem. Various theories about the causes and approaches to the settlement of the civil war can be debated, but it is beyond dispute that sustainable peace, political stability, and development of the country are impossible to achieve without securing equal citizenship and full human rights for all Sudanese, Muslims and non-Muslims alike. This prerequisite condition is unattainable under a so-called Islamic state or any formal enforcement of Shariʿa as the law of the land.The question for our purposes here is whether it has been so difficult for the Muslim majority to acknowledge the legitimate demands of the minority, despite the horrendous human and material costs of a civil war that has raged for four decades What is driving the resistance of the Muslim majority to the obvious prerequisite conditions of peace, political stability, and economic development of the whole country? The basic answer to this question, it seems to me, is the ambivalence of all the political leaders of the Muslim majority on the role of Islam in the constitutional process.
At first glance, it seems that the position of the various political parties in the Muslim north can be classified in terms of their commitment to the establishment of an Islamic state that will enforce Shariʿa as the constitutional and legal system of the land, and those who oppose that model and favor a secular state. But this would be an oversimplification of a more complex situation. The two major political parties in the north, the Umma Party and Democratic Unionist Party (DUP), are too ambivalent on this fundamental question to permit a clear-cut classification. Moreover, even the NIF as the purported ideological proponent of the enforcement of Shariʿa is quite vague and evasive about how that might be done in practice, and it has failed to implement this during the fifteen years it has been in complete and exclusive control of the state (since June 1989). If this characterization is true of the three major political forces in the Muslim northern part of the country, then that would not only support my general thesis about the contingent role of Islam, but also open possibilities of mediation among competing claims to self-determination.The two other major Muslim political parties, the Umma and DUP, are even more ambivalent on the issue. The Umma Party, with the Ansar Islamic sect as its main political constituency, is nominally committed to an undefined form of an Islamic state and hold confused views on the application of Shariʿa. Neither al-Saddiq al-Mahdi, the leader of the Umma party since 1964, nor any of his followers has ever produced a clear and comprehensive statement of the party’s position on these issues. The DUP, with the Khatmyya Islamic sect as its main political constituency, is equally ambivalent and confused on the critical constitutional issues arising from the application of Shariʿa. Although the Umma and DUP have governed Sudan during all democratic periods (1956–85, 1965–69, and 1986–89), either in coalition with each other or with other minority parties, they have never taken concrete steps to implement Shariʿa.
But when they ruled from 1986 to 1989, these parties were able neither to repeal the Shariʿa statutes imposed by Numeiri in 1983, nor to enforce them in practice. The ambivalence and confusion of the leadership of the Umma and DUP persisted throughout the 1990s, when they continued their opposition to the NIF government of El-Bashir, mostly from exile in Egypt and Eritrea.Despite their long history of extensive political rhetoric in favor of the application of Shariʿa, the leaders of the NIF have never produced a definitive statement of their position or detailed in public the specific features of the model they hope to install in the Sudan (An-Naʿim 1993: 102–3, 107–11). In particular, the leadership of the NIF has failed to develop a clear plan or consistent practice on this issue since they took exclusive control of the state after the coup of 1989. Indeed, as noted earlier, political disagreement among the leadership has resulted in the detention of al-Turabi and suppression of the PNC party, which he attempted to establish in opposition to the other leaders of the NIF who retained control over the NCP as the ruling party. It is also significant to note that this internal power struggle within the NIF was primarily about how to maintain commitment to Shariʿa while negotiating a peaceful settlement of the civil war. These fundamental political realities of a postcolonial territorial state like Sudan are compelling reasons for ensuring the future of constitutionalism in Sudan.
This view is also confirmed by the same ambivalence about the role of Islam that we find in the positions of a variety of political parties and movements, such as the National Sudanese Party, the Sudanese Communist Party, and the Sudanese People’s Liberation Movement. These parties have tended to support the separation of religion and the state, but are apparently unable to take that position to its logical conclusions openly and categorically for fear of its political consequences among their Muslim constituencies.
Thus, the application of Shariʿa seems to be the critical factor in Sudanese constitutional discourse: If or to the extent that a political party or organization is committed to the application of Shariʿa, its position can be assessed in terms of the consistency or inconsistency between that position and modern constitutionalism, as discussed in Chapters 1 and 4 earlier. Conversely, if or to the extent that a party or organization is opposed to the application of Shariʿa, the question becomes how it deals with the aspirations of the Muslim majority in the country. None of the main political parties in the Muslim northern region, which constitutes at least two thirds of the country in size and population, seem to be able and willing to fully embrace either option, hence the need for the sort of mediation I believe the contingency thesis provides.Since independence, the role of Islam in the state and the role of Shariʿa within the legal system has been a contentious issue (Mayer 1993: 133). The debates on whether Sudan should adopt an Islamic constitution and whether Shariʿa should replace the common law system were inconclusive and recurring. It has also been suggested that “The removal of Islam from public life in Sudan is not an option” (Salam 2001: 21). At the same time, it is also clear that the application of Shariʿa by the state is problematic for all religious traditions in the country, Muslim and non-Muslim, because it would inhibit debate about which interpretation of Islam is to be codified (Salam 2001: 22–23).
It is also reasonable to conclude that there is a clear correlation between the Shariʿa issue and the civil war in Sudan. The Shariʿa issue has apparently come to summarize and symbolize the totality of the grievances of the non-Muslim south against the Muslim north. This does not mean that the imposition of Shariʿa by former President Numeiri in 1983 was the sole cause of the resumption of civil war.
As noted earlier, that arbitrary imposition of Shariʿa was the culmination of a series of violations of the Addis Ababa Agreement of 1972 which ended the first phase of the civil war. If peace and reconciliation are to be achieved, however, each side must appreciate the point of view of the other, and respond to it in a constructive manner.For our purposes here, the constant constitutional transition and stalemate in Sudan revolve around the basic issue of how to conduct government in accordance with the will of the majority without violating the fundamental constitutional rights of the minority or other groups or individuals within the country. Since many aspects of Shariʿa are inherently inconsistent with the constitutional principle itself, as well as violating rights of non-Muslims and Muslim women, as outlined in chapters 1 and 4, the mediation of this tension cannot be achieved through direct application of Shariʿa by the state, which would mean the enforcement of legislation and implementation of official policies that are inherently unconstitutional. The contingency of the role of Islam thesis presented in the previous chapter may be helpful precisely because of the ambivalence of the major political parties on the issue. I will return to these issues in the last section of this chapter, following similar outlines and thematic discussion of the other two cases.