By: Walaa SALAH
With input from Ms. Fatima Abu Algasim, a Sudan based family law attorney
Translated From Arabic by Hala Alkarib
Comparative overview of the Family Laws of Sudan and Djibouti with regards to the situation of women
Religion-based legal frameworks are not all alike: in some countries they manage to reconcile tradition with religion and human rights while in others a healthy balance is not yet achieved. Walaa Salah compares Djibouti and Sudan to show how the welfare of families, children and the status of Women are being protected or affected by family laws.
The relationship between laws and religion has triggered extensive debates between policy makers, legislators, cultural and social actors. Central to these debates are the Personal Status and Family Laws. Around the world countries have had to decide between adopting secular civil laws or laws that embody both religious guidance and secular civil principles. Very few countries in the world have chosen to depend mainly on their interpreted versions of religion and to adopt those into laws. Among those that chose religion as the sole source for their legislation particularly concerning family and personal matters, were countries like Sudan and Somalia. By doing so, they created a deep rift between men and women and societal crisis in their countries. Looking at the essence of the Djibouti Family Law and the Personal Status Law of Sudan, we find that despite their common base of Islamic guidance, they differ in their formulation and content.
Sudan has been dependant on Islamic jurisprudence since the early 20th century to govern family matters and personal affairs, and did not have a specific law to govern personal status until 1991. Law enforcement largely depended on legal publications and precedents. One big challenge of the Sudanese Family Code is that it encompasses many issues that would have been more useful to be inserted into other sections of the law such as Inheritance laws. Also, it depends on the Hanafi school of thought which in comparison to other Islamic schools is widely perceived as narrow and unnecessary rigid in its interpretations and is being criticised by many Islamic scholars. Moreover, Sudan’s Family Law was adopted without the usually common explanatory memorandum to it – opening the door for judges to employ their own self-made interpretations, which has resulted in a Personal Status Law guided by personal prejudice rather than a legal framework. Naturally this led to the victimisation of women in such a patriarchal society.
Like Sudan, Djibouti is a predominantly Muslim Horn of Africa country and although both countries’ legislations are based on Islamic Jurisprudence (fiqh and sharia), the situation of women in the two countries differs significantly. While the Djibouti Family Code seeks to adhere to traditions, religion and international human rights, the Personal Status Law of Sudan takes the extreme opposite position.
HOW LAWS SHOULD REFLECT VALUES OF A SOCIETY
In 2002, Djibouti enacted its Family Law, born from joint efforts of the Ministry of Justice, the Human Rights Council, and the Djiboutian Muslims Clergies Council. The outcome was a legal framework that seeks to support Djiboutian families and the society at large. The objective was to improve and positively develop communities’ religious beliefs and culture while at the same time providing for the protection of the family. It emphasises on the responsibility and accountability of parents towards their children and the respect for their rights.
It is common practice worldwide, that drafting and ratifying of a country’s family law entails extensive societal consultations and feedback from different actors. The lack of such consultations in Sudan in the process of formulating the Family Law contributed to its poor outcome – it suffers conceptual and legal inadequacy as we shall see below.
While the Sudanese law defines marriage as a contract between a man and a woman on the intention to legitimize a sexual relation, the Family Law of Djibouti talks about building family values, of the family being the core entity of society and of the responsibility for the upbringing of children and their protection.
For the conclusion of a marriage contract the Djiboutian Family Law provides procedures to be followed for registering the marriage and also requires the consent of both parties to be demonstrated in front of an authorized civil office. More than that, both parties are to provide detailed documentation and background information about themselves and to demonstrate their acceptance of the marriage. In contrast, the Sudan Family code omits all such important steps, which leads to many marriages in Sudan being concluded without the consent of the bride.
When it comes to the age of marriage, the Family Law of Djibouti clearly states that both parties must be 18 or above whereas the Sudanese law, talks about the age of “awareness” or “consciousness”, which it decides to be at the age of ten years – thereby endorsing child marriage. Among many incidents documented by the Sudanese Organisation for Research and Development (SORD) on the issue of female child marriage and divorce, there was an underage girl who was forced into marriage when she was 15. One year later, she was divorced with a child and when she claimed for custody of her child, the same court that allowed her marriage denied her custody due to young age and inability to assume responsibility.
Mutual respect and support are emphasised on throughout the Djiboutian Family Law. Although the law states that the wife should obey her husband, it does not impose sanctions or punishment in case the wife disobeys her husband. However, in the Sudanese law, if the court believes that a wife is disobedient to her husband according to his complains, the court is entitled to deprive the wife of the right to alimony as long as she is in conflict with her husband. The husband has also the right to control the freedom of mobility of his wife, including her ability to go to work.
While both laws allow men to have up to four wives, a difference manifests in the procedures that create the polygamous status. The Djiboutian Family Law stresses on the right of the first wife to choose between staying in the marriage or divorcing the husband and receiving her alimony in case her husband wanted to marry another wife. Again, the Sudanese law grants men the freedom to marry more than one wife, up to four, without consulting their first wife. Beyond that, the Sudan Family Law grants the husband unlimited authority in divorcing his wife any time he wants. Wives can only file for divorce through a court of law and under restricted conditions, where they usually suffer a complex process to prove that they were harmed by the marriage. Notably, the Sudanese law expects a woman who has been abused or has become a victim of domestic violence to present witnesses to the act of beating, which is almost impossible. This prejudiced position affects women’s lives with some of them being trapped in trying to attain divorce for years.
The Djiboutian Family Law ensures that a divorce is to be undertaken in front of an authorized government clergy or a magistrate. As long as efforts of reconciliation become unattainable, the wife with her children must be provided with a home as well as alimony.
Demonstrating the inherent injustice and discriminatory nature of the Sudan Family Law, which claims to be based on Islamic sharia, it becomes evident how it largely contributes to the degradation women’s status in Sudan as well as to societal disintegration with its impact on families and children: not just is the welfare of children and the family not articulated in the Sudanese law, but the philosophy of the law does not reflect intentions to secure their well being and instead puts supremacy of one gender – the male – above the well being of children. One can only appreciate the effort made by the Muslim state of Djibouti to reconcile their spiritual beliefs and their culture with human rights of women by developing a legal framework that based on moderate and acceptable interpretations of Islamic guidance contributes positively to the society’s development.
▪ The Personal Status Law of Muslims in Sudan, 1991: http://www.justice-lawhome.com/vb/showthread.php?t=7909
▪ The Family Law of the State of Djibouti: translated by SIHA from French to English for the purpose of this article
▪ Booklet by UNICEF, United Nations Fund for Population-UNFPA in collaboration with the Government of Djibouti on the Family Law of Djibouti
▪ Personal Status Law 1991, Strong Philosophy of Discrimination against Women, an article by Hassan Elzin, a Sudan based attorney, March 2009, http://www.ahewar.org/debat/show.art.asp?aid=171057
▪ Adila, a documentary about the Sudanese Personal Status Law, by SORD- Sudanese Organisation for Research and Development http://www.youtube.com/watch?v=m3hgJwX3bRA
▪ A Look at Sudan’s Personal Status Law of 1991, a paper by Mr. Ahmed Abdelsalam Omar, a Sudan based lawyer, published within the Sudanese Organisation for Research and Development – SORD’s alternative Family Law, Sudan