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

REPENTANCE FOR THE CRIMES OF BLASPHEMY AND APOSTASY IN ISLAM

On the second point of Article 126, it is interesting to note that this seems to be in contradiction to the standard position within Islamic Shari’a law, which offers a given period of three days to allow the accused apostate to reconsider his position, presenting some efficient time for them to re-embrace Islam, and is not a decision within the court’s discretion. However, having stated that, some jurists within the four schools of Islamic law argue that this time for consideration should be a lifelong period of contemplation to re-address the apostate’s desire to re-join the Islamic community. The various opinions offered on this topic differ slightly, concerning acts of both apostasy and blasphemy.

Mohammad Hashim Kamali makes it apparent that differences of opinion are presented by the four schools of law concerning whether the perpetrator of blasphemy should be requested to repent and also whether such repentance, if offered, would be acceptable and admissible within the rules of law. In the context of blasphemy, it is essential for the perpetrator to have his repentance accepted, as this would result in the unconditional acquittal of the case. He points out that there is disagreement among jurists, and significantly, among jurists of the same school of law. This offers some doubt when trying to determine the legal position on this issue.[lxvi]

The Hanafi school argue that it is recommended to request the blasphemer to repent (istitabah) and return to the faith of Islam, while Imam Malik finds the repentance unnecessary. The Shafi’is and Hanbalis have differing views, one corresponding with the Hanafis and the other with Imam Malik’s view. The majority overview opinion is that istitabah is a necessary requirement to be received before any punishment is delivered. There is a period of three days[lxvii] allowed for the accused to consider his position and offer a repentance within this time-scale. However, the Malikis do not allow for time for any repentance to occur, based on the hadith ‘Kill those whoever changes his religion’, as it is silent on repentance. Some Shafi’is and Hanbalis accept this view.

The support for the acceptance of repentance is based on a tale from A’isha (one of the Prophet’s wives) which describes how a woman renounced Islam on the day of the battle in Uhud and the Prophet Muhammad ordered that she should be requested to repent of her own will.[lxviii]

In his work covering the concept of apostasy, Yahya b. Ali Al-Shawkani intertwines both views by maintaining that it is valid to ask an apostate to repent if the accused has acted from the stance of ignorance, but it is not a valid option if they also claim to have knowledge and righteousness.[lxix]

When the accused has insulted God and/or the Prophet Muhammad, then repentance, whether requested or not, is admissible for the majority of all jurists. The need for the repentance and its importance has differing approaches from the schools of law. The predominant view of both the Hanbalis and Malikis is that repentance will not pardon blasphemers from punishment in this world, although it would help them, if they are sincere, in being more beneficial for them in the hereafter.[lxx] In this condition, the Hanbalis and Malikis do not draw any distinction between insulting either God or the Prophet Muhammad. Either act is considered the same offence, thus to be treated on an equal level. The position is based on the cases dealt with by the Caliph ‘Umar b. al-Khattab, who gave equal punishments on Sabb al-Allah and Sabb al-Rasul. In both cases he never requested for repentance from the blasphemers. ‘Thus: it is said that the main difference between blasphemy and apostasy is that the latter is open to repentance but the former is specifically not.’[lxxi] However, contrary to this, there is another view held by the Hanbalis and Maliki schools of law that states that it is obligatory for a convicted blasphemer to be given every opportunity to repent and return to Islam.[lxxii]

A further difference of opinion is presented in the other two schools of law, as Hanafis and Shafi’is hold blasphemy in the same category as that of apostasy. They hold that repentance from both the blasphemer and the apostate is acceptable as legally admissible. The blasphemer is to be allowed three days, as is the apostate, to contemplate, and consider whether to repent. The three days begin on the day of conviction. During the three days the convicted is entitled to food, clothing and anything else felt necessary. Repentance, in the case of a Muslim who has become an apostate, consists of their return to Islam, by reciting the testimonial of faith (kalimat al-shahadah).

The second part of Article 126 also refers to those born and raised as Muslims who are to be punished with death, as opposed to what it describes as ‘a recent convert to Islam.’ Thus, concerning the case of a non-Muslim, or a dhimma,[lxxiii] if a blasphemer, their repentance should be an expression of remorse, offering a guarantee that the act will not be repeated. The head of state may accept the repentance and the accused could then either retain their existing religion, or, as Taqi al-Din Ibn Taymiyya suggests, they could genuinely embrace Islam.[lxxiv] According to another view, which seems to be more preferable, the terms of repentance should be more conditional in relation to the nature and content of the offence and the convicted should unequivocally condemn what was done and/or said in the incident.

Concerning a Muslim apostate, Hanafis and Shafi’is accept the repentance and the return to Islam for a maximum of only four states of apostasy. If the apostate repents, then commits apostasy on a fifth occasion, and returns to Islam, the fifth return to the faith will carry no weight. On the first four times, the repentance is allowed the three-day consideration time, in order to repent (istitabah). This procedure is based on a report on the Prophet Muhammad having asked a Nabhan ‘for repentance four or five times’. This is reported by Qadi ‘Iyad al-Yahsabi (d.544AH/1149AD), who states that Ibn Wahab reported from Imam Malik that on each occasion that the apostate committed the offence, he should be asked to repent permanently. This is also the same ruling by Imams Shafi’i and Ibn Hanbal.[lxxv] Another report holds that a differing time-scale for repentance is held. It states that ‘Ali b. Abi Talib held the view that an apostate should be called to repentance over a period of two months. Further more, both Ibrahim al-Nakha’i, who taught Imam Abu Hanifah, and Sufyan al-Thawri hold the view that the door of repentance should remain open indefinitely, until the apostate will have the length of their life to be allowed to re-embrace Islam.[lxxvi]