The Death Sentence for Mahmoud Muhammad Taha:
Misuse of the Sudanese Legal System and Islamic Shari’a law?

THE TRIAL OF MAHMOUD MUHAMMAD TAHA : THE DEATH SENTENCE FOR THE CRIME OF APOSTASY – OR TO OBLITERATE THE POLITICAL OPPOSITION?

The trial of Mahmoud Muhammad Taha has been seen to have been fraught with procedural and substantive errors which were overlooked by both the government and those in the judicial system, but which compromised both. Taha was executed on 18 January 1985, and this section offers some background to the trial that took place and the reasons surrounding the accusations, convictions and final death sentence that ended Taha’s life-long campaign.

An-Na’im argues that from the very beginning, the trial was in error, as the prosecution was unconstitutional for several reasons, under the Permanent Constitution of the Republic of Sudan of 1973, which was the constitution in use at the time. Articles 47 and 48 in the permanent constitution, which guarantee freedom of thought, belief and expression, were violated. During the trial, it also became apparent that none of the parties involved made any attempt to confirm that the behaviour of the accused met the offences they were charged with. Thus, An-Na’im argues that one may be fairly justified in determining that the charges under the penal code and State Security Act were actually a necessary pretext in order to take Taha to trial because of his political activities and his adamant opposition to Nimeiri’s campaign to impose his own definition of Shari’a law upon Sudan. Taha’s opposition was interpreted as the renunciation of Islam and technically seen as his ‘apostasy’.[xxxviii] Taha’s initial arrest and the police interrogation of the accused were undertaken under the state security offences, with no mention of apostasy, but when the presidential sanction[xxxix] for the trial was obtained the state’s Minister for Criminal Affairs also added section 458(3) of the penal code and section 3 of the Sources of Judicial Decisions Act. Both of these provisions were first introduced in 1983 as an integral part of the ‘September 1983 Law’.

Both of these two sections together act to authorise the courts to impose Islamic penal provisions focusing on hadd[xl] penalties in particular, regardless of any lack of legislative provisions that would punish the specific conduct under Sudanese law. At a later stage, the two sections were used by the Court of Criminal Appeal to confirm the convictions and support the relevant death sentence for apostasy, although during the actual trial, the court made no actual charge of apostasy, while added to that, the two sections violated Article 70 of the Sudan constitution of 1973.[xli] As stated above, the accused were charged with several crimes against the state, pleaded not guilty and boycotted the court. The prosecution produced only one witness, who was the police officer who had interviewed the accused. During the trial, the witness read out what had been stated by the accused, their full admission of being the authors of the pamphlet. The pamphlet was used as the only prosecution exhibit. No comments were made during the trial, concerning what the accused had previously written and spoken in reference to the broader issues of Shari’a reform or an Islamic revival. However, these writings and the views expressed were introduced by the Special Court of Appeal, for their own reasons, as a basis for the conviction for apostasy.[xlii] As Abdel Salam Sidahmed presents in assessing this court’s procedure:

The court argued that Mahmoud M Taha was guilty both by his sayings and ‘deviationist views’ which ‘are known to everybody,’ and by his deeds, such as the fact that he does not pray. More specifically, the court argued that Taha’s views which claimed that the shari’a, as known and practised during the time of Prophet Muhammad, is incapable of solving the problems of the 20th century, should be taken as sheer heresy.[xliii]

As there was no case presented to the accused, due to their boycott, it is essential to note that the accused pleaded ‘not guilty’ and boycotted a trial based on state security offences and were not on trial for the charges of apostasy. It is of interest to note the manner in which the court judge led the convictions and sentencing. An-Na’im raises the point that

Although convicting all of the accused for the state security offences he specifically named, the trial judge stated that the death sentence would not be carried out if the accused were to repent and recant at any time before execution. As the notion of stay of execution on the grounds of repentance and recanting of one’s beliefs or views is completely alien to Sudanese criminal law, the Judge must have had the Shari’a offence of apostasy in mind although he refused to mention it, presumably because of the obvious constitutional objections.[xliv]

The judge did not, at any time, describe the details of the offences against the state which the accused were being charged with and convicted of, but he emphasised certain parts of the pamphlet that pointed towards the need for an Islamic revival and the reform of Shari’a law that was sought after by the Republicans. The judge declared, without producing any evidence to contest the views and beliefs stated within the pamphlet, that the information provided within it would induce social upheaval if it was allowed to be publicly distributed. An-Na’im argues that this format is the manner any religious and/or ideological dissent within traditional Shari’a is punished; thus the judge ‘was in fact convicting the accused of apostasy while citing provisions of the penal code to make it appear as if the convictions were for regular offences against the state. This clearly violates the requirements of a fair trial provided under Article 64 of the constitution.’[xlv]

The case’s assessment and judgment by the special Court of Criminal Appeal was the first time that the accusation of apostasy had been raised as an appropriate crime. However, the court dealt with the issue in an unsatisfactory way. The court first noted the problem of convicting the accused under the relevant sections of the penal code, and then offered time to repent and recant, to gain a stay of execution. The Court of Appeal then aimed to ‘rectify’ the decision of the trial court, by raising two questions: ‘Is apostasy punishable under Sudanese law and if yes, did the conduct of the accused amount to apostasy as defined in Islamic law sources?’ They answered both questions with ‘yes’ and proceeded to confirm the original conviction and the sentences on all five accused of the crimes of state security offences, but also added the new conviction and sentence for the separate crime of apostasy. The Court of Appeal then particularly selected Mahmoud Taha ‘to be executed immediately, without the opportunity to repent and recant, because he had persisted in advocating his “heretical” views for many years and refused to heed judicial and other pronouncements’.[xlvi]

Added to that, he was to be denied burial with Muslim burial rites and his property was confiscated. According to a BBC report, the court stated that ‘no prayers should be said for him, nor should he be buried in a Muslim grave. His estate will be distributed among Muslims after payment of any outstanding debts.’[xlvii]

The other four involved were allowed one month to repent and recant, and to ‘re-embrace’ Islam, which would prevent their own execution. Interestingly enough, the Court of Appeal stated all members of the Republicans, or the followers of Taha, were equally held to be apostates and to be treated as such in all interaction with Muslims. The Republicans’ books, pamphlets and all other publications were called on to be collected and destroyed. Any future publications and distribution of information containing the issues they dealt with were banned, along with any other activity of the Republicans.

A general overview of the court’s assertion on the Republicans can be seen in the comments:

The Republican Brothers was an infidel group and renegade faction that must be dealt with in the same manner as other infidel groups. All books and publications of Mahmud [sic]Muhammad Taha and the Republican Brothers shall be seized from all libraries and destroyed to prevent circulation and printing. The activities and meetings of the group will be banned throughout the country.[xlviii]

The final decision of the Court of Appeal was handed on to Nimeiri, the president of the republic, for final assessment and confirmation.[xlix]

In analysing the manner in which the court was run and the decisions it concluded with, An-Na’im summarises the misdemeanours of the complete judicial system during this particular case of Mahmoud Taha and his four co-accused:

Since the accused were never formally charged with apostasy, they, naturally, offered no defence against it. Even the prosecution did not present any evidence in support of apostasy! It was the Court of Appeal which took it upon itself to specify and try apostasy for the first time at the confirmation of proceedings stage. In the absence of the accused, and without representation for either side, the Court of Appeal produced its own interpretation of the views and theories of the accused.[l]

To confirm the decision concerning the conviction for apostasy with reference to Taha, the court relied practically on two points only. One was a previous conviction in a Shari’a court in Khartoum on 18 November 1968, some 17 years earlier, by some private plaintiffs who were offended by Taha’s opinion on Islam. During this trial, ‘Taha and the movement were declared kafir, heathen or non-Muslim, the only such case in modern Sudanese history’[li] before its repetition in 1985. The other point raised in 1985 was based on the extra-judicial announcements presented by foreign institutions that declared Taha’s apostasy. An-Na’im states that ‘as to the first ground, the decision of the Shari’a court was completely null and void because that court lacked jurisdiction over questions of apostasy as such’.[lii] The cause of action was also unconstitutional under the 1956 Constitution, which was amended in 1964 and was in force in 1968. Taha, as the defendant, was entitled to refuse any attendance at the trial in 1968 and he himself actually disregarded the court’s final decision. The prosecutors could neither enforce his attendance or impose any decision the court made. ‘How could, therefore, the judgment of one court in a civil cause of action, rendered in the absence of the defendant and without any jurisdiction, be a basis for a criminal conviction by a different court 17 years later?’[liii]

On the second point, the Court of Appeal cited the opinions of the Al-Azhar University in Egypt and the Muslim World League. Both argued that Taha was an apostate and proceeded to tell the Sudanese court to treat him as such.[liv] An-Na’im argues that such opinions have no weight in a court of law, particularly as they were not used to present any evidence by the prosecution in a manner that would enable the defence team to cross-examine the experts’ claims or to prove their competence to make such a judgment in their opinion. Further to this point, the unjudicial reasoning by the Court of Appeal is also apparent by their refusal to accept any legal objections to the imposition of the death sentence on Taha. Interestingly enough, in section 247 of the 1983 Code of Criminal Procedure, one of the ‘Islamic laws’ prohibits the imposition of the death sentence on a citizen who is over the age of 70 years. At the time of his conviction, Taha was 76 years old. Arzt argues that

Although neither apostasy nor heresy were then crimes in the Sudan, Taha’s appellate court (rather than the prosecutor) introduced hearsay evidence of the 76-year old leader’s heresy and ordered him executed without the opportunity to repent. This violated Shari’a and multiple articles of Sudan’s Constitution, as well as the Code of Penal Procedure’s prohibition on execution of persons over 70 years of age.[lv]

The Court of Appeal dismissed this provision of age limits, as they held it inappropriate in relation to hadd crimes, as the punishments for these are unalterable. However, there was no legal defence for that claim in relation to the 1983 Code of Criminal Procedure, as the code makes no exceptions for hadd crimes and there was no provision found to the effect that Shari’a legal principles were superior to other legislation, or that which holds the view of presuming consistency within Shari’a law.[lvi] In a summary of the final decision made by the Court of Appeal, An-Na’im’s view is that

Having dismissed Section 247 in this arbitrary way in relation to the so-called hadd offence of apostasy, the Court of Appeal immediately proceeded to confirm the conviction and sentence under the Penal Code and the State Security Act, expressly describing them as non-hadd offences. Even if Section 247 of the Code of Criminal Procedure did not apply to apostasy, it surely applied to the ordinary criminal offences under the Penal Code and the State Security Act. It would therefore seem that the Court of Appeal was keen to confirm the death sentence, irrespective of legal objections.[lvii]