Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898-1985 (Islam in Africa)

Manichaean Delirium

Islam in Africa Brill’s “Islam in Africa” is designed to present the results of scholarly research into the many aspects of the history and present-day features of Islam in Sub-Saharan Africa. The series will take up issues of religious and intellectual traditions, social significance and organization, and other aspects of the Islamic presence in Africa. It includes monographs, collaborative volumes and reference works by researchers from all relevant disciplines. Editors

John Hunwick Rüdiger Seesemann Knut Vikør

VOLUME 7

Manichaean Delirium Decolonizing the Judiciary and Islamic Renewal in the Sudan, 1898–1985

By

Abdullahi Ali Ibrahim

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Abdullahi Ali Ibrahim. Manichaean delirium : decolonizing the judiciary and Islamic renewal in Sudan, 1898–1985 / by Abdullahi Ali Ibrahim. p. cm. (Islam in Africa ; 7) Includes bibliographical references and index. ISBN 978-90-04-14110-0 (hardback : alk. paper) 1. Islamic law—Sudan. 2. Islam and justice—Sudan. 3. Courts, Islamic—Sudan. 4. Justice, Administration of (Islamic law)—Sudan. 5. Islam—Sudan—History. KTQ469.5.I27 2008 340.5/909624 22 2008007076

ISSN 1570-3754 ISBN 978 90 04 14110 0 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

A writer in other than his mother tongue is a beggar for words. And

John Bullion, a proud Texan and a shepherd of idioms gave this writer, a non-native speaker of English, a herd of words and various beautiful things. This book is dedicated to him in acknowledgement of his jamῑl (beautiful deed).

CONTENTS Acknowledgements ............................................................................ Abbreviations ...................................................................................... Orthography ....................................................................................... Glossary ...............................................................................................

ix xiii xv xvii

Introduction Decolonization: Toward a Musical Approach to Religion ......

1

Chapter One In the Shoes of the Colonized .....................................................

59

Chapter Two A Tale of Two Courts: The Sharia of Allah and the Custom of the Patriarch ...............................................................

115

Chapter Three President Ismail al-Azhari, 1965–1969: The Politics of Moral Injury ...................................................................................

165

Chapter Four Nimerie’s Instant Justice: Tongue of God and the Rogue .......

221

Chapter Five The Qadis and Mahmoud M. Taha: Toward an Economy of Vendetta and Martyrdom ......................................

273

Chapter Six Growing Up in a Qadi’s Home: Hasan al-Turabi and his Theology of Modernity ...................................................

323

Conclusion The Difficult Birth of the Unified Judiciary ..............................

367

Bibliography ........................................................................................

395

Index ....................................................................................................

411

ACKNOWLEDGEMENTS In the far too long period that I took to complete this book since I first conceived it in a class about theories of social anthropology at the Indiana University-Bloomington in 1983, I have amassed an inordinate number of debts that I happily, if insufficiently, acknowledge here. My research for this project received the generous support of Ford Foundation (The Middle East Research Committee, Cairo) and the Institute of Advanced Study and Research in the African Humanities and the African Studies Program, Northwestern University, the Research Board of the University of Missouri, and the Research Council of the University of Missouri-Columbia. I am extremely grateful for the collegial feedback I gained from presenting various versions of the chapters of the book at the African Studies Association, the American Anthropological Association, the Sudan Studies Association, the Haverford College, and the American Bar Foundation in Chicago. I am also grateful for the opportunity to present some of the ideas of this book at specialized conferences on Islam held at the African Studies Program at Northwestern University, the African Program and Joint Center for International Studies, Wisconsin-Madison and Wisconsin-Milwaukee, the Center of Islamic and Near Eastern Studies, University of California, Santa Barbara, and the Institute of Global Cultural Studies, Binghamton University. A special word of thanks goes to Professor Yusuf Fadl Hasan whose Monday Seminar at the Institute of African and Asian studies, University of Khartoum, provided me with the opportunity to discuss my work with my former students and colleagues at the Institute. Numerous anonymous reviewers of chapters of the book published in journals or the whole manuscript of the book helped sharpened its arguments. They deserve my deep appreciation. I want to thank the History Department at the University of MissouriColumbia for hiring me in 1995 on the evidence of a research presentation that spelled out the general approach and content of the book. Unfailingly, the Department continued to provide the time and support to write the book. Their unique alternate semester system relieved me of teaching duties in the winter of 1998. I cannot thank enough

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Professors Jerry Barrier, John Bullion, Robert Weems, Winfield Burggraaff, Mark Smith, Jonathan Sperber, Arvarh Strickland, Steve Watts, and Russel Zguta for the time and many other things, large and beautiful. I will always pray for the soul of the late David Wakefield, the able East Asian history teacher at the Department, for his camaraderie. Patty Eggleston, Karen Pecora, Melinda Lockwood, Marie Sloan, and Nancy Taube, the staff of the Department, deserve a special word of thanks for their seamless availability and great sense of humor. In the course of researching and writing this book I benefitted from the insights, encouragement, and support of Talal Asad, Ismail H. Abdalla, John Comaroff, Sondra Hale, David William Cohen, Abdullahi Ahmad An-Na’im, Cliff Thompson, Mark DeLancey, John Hanson, Kenneth Perkins, Judy and Ronald Atkinson, Susanne Carter, Ibrahim Khalid Mahdi, Taj al-Sir el-Rayah, Clenora Hudson-Weems, Mark Auslander, John Hunwick, Carolyn Flueher-Lobban, Elaine Lawless, Lynn Hunt, Ali Mazrui, Abdal Basit Sabadrat, Dale Eickelman, Michael Schatzberg, Jean Allman, Mary Barile Abdalla Gallab, Magid Ali Bob. Muhammad Mahjub Haroun, Abd al-Rahim Muhammad Salih, Ibrahim Mohammed Zein, Kamal al-Juzuli, Rabah Al-Sadiq al-Mahdi, ʿAla al-Din Bashir, Muhammad al-Ahmadi, Abdal Rahman ElKhalifa, Badr al-Din Ali al-Hashmi, Ali Suliman Fadlalla, Ahmad Abd al-Rahim Nasr, Mary Jo Arnold, Hasan Musa, Mubark Hamad, Muhammad Nagi, Deborah Waheedah Bilal, and al-Khatim al-Mahdi. I am especially grateful for the time a number of qadis, judges of Islamic courts, and other judges provided to make my interviews with them possible. Prominent among those are the late Sheikh al-Juzuli, the former Grand Qadi of Sudan, and the former Chief Justice of the country Justice Khalfalla al-Rashid, Justice Galal Ali Lutfi, Justice Obeid Hag Ali, and Justice Jalal Muhammad Osman, the High Court judge in 1991 and Current Chief Justice. I am also grateful to the late Abdalla Daf ’alla of the Sharia Division who was on secondment to the United Arab Emirates in 1996 and Abd al-Rahman Sharfi of the same Division and the High Court judge in 1991. I owe a special debt of gratitude to Qadi Nagwa Farid of the Sudan Appeal Court and Qadi Rabab Abu Gisaysa of the Sudan High Court, who were the first women to join the Islamic court system in the early 1970s, for their rich perspectives on women and Islamic courts. Ahmad al-Khidir ʿAlayb and Nur al-Din al-Amin of the staff of the judiciary provided an indispensable perspective on the institution’s work.

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I will always ask Allah’s grace and forgiveness for the late Majdhub Kamal al-Din, the former qadi on the High Court in Sudan, and the late Abdullahi al-Shaykh al-Bashir, my cousin and the former President of the Association of Teachers of Arabic Language and Islamic Subjects in the 1970s, whose rich interviews in the early 1990s opened my eyes to the scholarly potential of the research that led to this book. I also am grateful to Dr. and Sheikh Hasan al-Turabi, the leader of the Islamic movement in Sudan, for the time he took from his busy schedule to discuss his “labor for Islam” in two extensive interviews in Khartoum in 1996. I owe a special debt of gratitude to the staff of the interlibrary loan departments at Northwestern University and the University of MissouriColumbia. I am also grateful to the archivists at the National Record Office, Sudan, the Sudan Archives at Durham University, United Kingdom, the Attorney-General Office, and the High Judiciary Council in Sudan. The editors of African Studies Review and Africa Today kindly permitted the reproduction of articles I published in them in 1997 and 1999, respectively, in the book. Chapter 2 is a revised version of the article I published in African Studies Review (40,1:13–33) and Chapter 5 is a longer version of the article I published in Africa Today (46, 3, 4:195–222). I am particularly indebted to editors, staff, and anonymous reviewers of Brill’s ‘Islam in Africa.’ John Hunwick, Knut Vikør, Ruediger Seesemann, Trudy Kamperveen, Sylvia Simmons, and Sasha Goldstein. They all eased the dread moment of delivery by their patience and courtesy.

ABBREVIATIONS DUP HJC NPF NUP PDP SANU SCP SCS SWU

Democratic Unionist Party High Judiciary Council National Professionals’ Front National Unionist Party People Democratic Party Sudan African National Union Sudan Communist Party Supreme Council of State (or Supreme Commission of State) Sudan Women’s Union

ORTHOGRAPHY The system of transcription adopted in this text follows the conventions of the International Journal of the Middle East Studies. The system is godsend to an author not only using classical and Sudanese colloquial words, but also dealing with proper names and place names that have had a life of their own in the English language. The licence the system gave to writers to economize in diacritics and to follow the English norms in writing names of people and places is a very happy one.

GLOSSARY Al-ʿadāla al-nājīza instanteous justice carried out by President Nimerie in 1983 afranjī European ʿālim see “ulema” ʿĀlimiyya a certificate awarded after a 12-year course of study at al-Mahad al-‘Ilmī of Omdurman anādī (singular, indāya) bars ankiḥ a matrimony ansar followers, when it is capitalized it refers to the followers of the 19th century Sudan revivalist, the Mahdi of God. ʿArabī or Hijri Islamic calendar baladī “native” baṭil vanities; opposite to ḥ aq, right bayt al-ṭāʿa literally, “house of obedience” to which a recalcitrant wife is assigned by order of a qadi dhikr a sufi ritual of spiritual ecstasy dīn religion effendi modern school graduate holding a government job fatil braiding, exchange of currencies like dollars, sterling, and Saudi riyals for Sudanese money fatwa a legal opinion feki “tribal” religious authority fiqh Islamic jurisprudence fitna a sate of chaos ghīra jealousy; showing zeal and guts in defending a cause ḥ arām a religiously forbidden practice hawas religious bigotry ḥizb a party ḥudūd boundaries; sanctions ʾibtilāʾ experiencing life as a perpetual challenge posed by God to test a Muslim’s faith iḥyā revival of Islam ijtihād interpretation of Islamic texts ʿilim religious knowledge; used to translate “science” into Arabic

xviii imam jalābiyya jazama jibba kab kāray khalwa koz

kubāya mahad al-Mahad al-ʿlmī

māndayra markūb mawlāna māzūn meglis merīsa miḥna milla mughtaribīn munkar mushāt naṣara qadi qarḍ ama qibla Ramadan saḥ ib

glossary one who leads prayer; a spiritual leader of a Sufi community a long loose garment men wore in northern Sudan European made shoe caftan rote memorization the modern wearing of hair Quranic school; madrassa (plural, kayzān, kūz, is its classical form) a rural word for “cup”. “Koz” in political parlance is a member of the Muslim Brotherhood a word for “cup” in urban milieus institute, a religious school during the colonial period. a religious institute during the colonial period. Al-Mahad al-ʿlmī of Omdurman (al-Mahad, for short) was the apex of this stream of education in the country. flag; bar (opening one is not sanctioned by Islam); immorality and licentiousness Sudan-made shoe (plural, mawalānāt) a form of address to Muslim judges of sharia and scholars marriage registrar council a form of Sudanese beer persecution, trial, and execution the religion of a subject community Sudanese emigrants in the Arab Peninsula evil doing a traditional wearing of hair for women; braiding (singular, naṣarānī) unbelievers; European (“kadi” in Max Weber’s rendition) judges of Islamic courts in Sudan Judiciary snobbish; fake facing the House of God in Mecca when performing prayers Muslim fasting month literally, “withdrawal,” that is, picking up girls

glossary ṣalʿa (Bald headed) a traditional way of wearing of hair salaf the preceding generations; tradition shaykh a teacher of Arabic and Islamic Subjects shūra consultation Sunna traditions of the Prophet; his sayings and deeds tajdīd renewal of Islam tajhīzī vocational; preparatory for government employment tarboosh fez tasrīḥ a a modern wearing of hair for women; coiffeur al-t ̣ulba a government tax ulema (ʿalim, singular) Muslim scholars or authorities umma nation of Islam al-ʿushūr a government tithe on crops ustāz teacher; professor; mentor zaka alms, one of the fifth pillars of Islam

xix

INTRODUCTION

DECOLONIZATION: TOWARD A MUSICAL APPROACH TO RELIGION In this work I investigate the virulent Islamic renewal in the Sudan that has been gathering momentum since the early 1960s, and that succeeded in establishing two ‘theocracies’ in the early and late 1980s. This renewal raised as never before the issue of the identity of the country and led to the intermittent civil war that began in 1985. The novelty of my work rests on a blend of scholarly and autobiographical concerns. The work bases its explanation of this religious renewal on a study of the colonial and postcolonial history of the Sudanese Judiciary whose courts and laws have been at the center of Islamic renewal in the country. The book will unravel the conflict between the Civil and Sharia divisions of the Judiciary. Hierarchized by the British administration, the Civil Division was endowed with power and authority over the Sharia Division. The courts of the latter division were relegated to a family law whose qadis (judges) were discriminated against by strategic, personnel, and financial policies giving priority to civil courts. I did some business with a sharia court in 1978 at a critical juncture in my life when I cut loose from two biological or political authorities. In 1978, I resigned from the Sudan Communist Party (SCP) after almost two decades of intense, and I hope, meritorious service in its ranks as a student activist and in the cultural field. Also, I lost my father who died in 1978. He had been distraught by my political choices, but remained a patient, sympathetic critic. I was critical of the SCP’s inability to transcend its 1971 debacle resulting from a premature bid for power through a military coup. Returning after three days in confinement under the putschists, an outraged President Nimerie (1969–1985) wiped out the cream of the party’s leadership including Abd al-Khalig Mahjub, the charismatic, well-read, and well-spoken secretary of the party. The party miraculously survived but lost the intellectual fire that mesmerized my generation. Wrapped in victimization, the party, as I saw it then, and even now, has been responding with aggrieved outrage substituting for self-reflection. Quest for revenge dulled its critical faculties which made it stand out as a

2

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different political enterprise before. Having lost this taste for questioning itself and the world, it turned into a regular political party joining the internecine feuds of the elites. I entered the court of personal law, sharia court, in 1978 representing my family in distributing the modest, but invaluable, property left by my father. No one has been to a sharia court without making a mental note of the women folk circling and crowding its corridors. A New York Times reporter described such a court as late as 2000 as a ‘crowded melancholy court room’ whose dismal trash-hallways ooze stories about ‘children abandoned, families impoverished and women trapped in marriages they can escape only with permission from their husbands’ (1 March 2000). Similarly, that was the mental note I jotted my first day in the court. The women at the court, let it be remembered, come from the poor, the needy, and the unprotected. That evening I visited the late ʿAbdullahi Salih, an attorney, a good communist, and an old friend since our intermediate schooldays in Atbara. The occasion came to tell him about my business at the sharia court. I then asked: ‘ʿAbdullahi, do you appear before sharia courts?’ He answered: ‘I have the license to do it. But I have never done business with it.’ His answer disheartened me. I felt that we, supposedly the furnishers of the script of the new society, were not at the site where the saddest stories are told. How could we, who had been selflessly working to help the poor, the disadvantaged, and the powerless, have abandoned this category of unhappy women? Where else should these litigious women, whose anguish is still the sole prerogative of sharia courts, a court we modernists despise and dismiss for being archaic and men-friendly, look for their day at court? If a good man like ʿAbdullahi, I thought, was not present when theses stories unravelled, how could these stories factor into politics? I did not hide my thoughts from ʿAbdullahi. I stated my point and said: ‘ʿAbdullahi, I am afraid that we have been mingling with the wrong women and men.’ He was gracious enough not to dismiss my criticism as the heretical afterthoughts of an ex-communist. He knew that I would have revealed this hurt to no other person. We had been through a time of great solidarity and trust. God bless his soul. I wrote later about this day on which I entered the sharia court and never left it as this book will show (al-Fajr 16 August, 1998). Even after I successfully concluded my business at the court, its halls of sad stories and family eruptions lingered in my mind. The court colonized me. Something about the cheap dress of the women and the embattled children remained with me. The judge struck me as unlike me although

decolonization

3

we graduated from the same university. Even at college qadi students were viewed as aliens from a past the modernists wanted to change. I remember how we viewed the first woman to join the qadi division in 1967 as a curiosity since sharia, in our way of thinking, is not cut out for women. I came to the United States in 1981 to do graduate work at Indiana University-Bloomington. Stalked by the sharia court, I wrote a term paper about qadis for a class on social organization in anthropology. This paper became the virtual ‘negative’ of my subsequent research culminating in this book. In the paper, titled ‘Sharia Judges: The Bride of Turbans,’ I analyzed the 1983 Islamization of the state in Sudan by which sharia law became the law of the land. In 1989, I returned to the sharia court by writing a successful proposal for a fellowship at Northwestern University. By saying that I found myself cutting loose from the watchful eyes of my patriarchs in the late 1970s, I am not suggesting that the book beacons my emancipation from these authorities. On the contrary, the book owes a lot to the musings of these authorities in those troubled times. In the face of an unrelenting anti-communist campaign under the banner of Islam, a befuddled Mahjub, the Secretary of the SCP, asked where his party went wrong with religion for his organization to be banned in 1965. On the other hand, my father showed admirable sympathy with my political ventures. He was not judgmental but extremely critical and challenging. He had his own experience, albeit brief and bitter, in labor politics. He was one of the representatives of the traffic workers on the first railways union in 1947. This experience was not a happy one. I did not hear it from him but it is said he might have crossed a picket line. However, he tirelessly tried to persuade me to avoid deep involvement in politics. He told me once that one really could not trust those with whom he does this kind of business. Even communists, he told me, could not wait to run to the authorities to report about the union meetings after their conclusion. At any rate, he later joined the classified staff of the railway system which removed him from union politics. In view of his frustrated union experiment, he advised once: Son, I never doubted that you have been genuinely advocating the cause of the common people. I am your father and I know that you meant well. I would however ask you to test the veracity of your views by preaching them from a mosque’s pulpit. Why don’t you take them where the kind of people you talk about congregate and to see how they will receive them?

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This book is my response to the afterthoughts of the patriarchs. The strategy to read it is to understand the questions it wrestled with. The Courts of the Colonial Regime The sharia court I entered in 1978 was part of a dual judiciary the British established after their conquest of Sudan in 1898. In this year, the national Mahdist state, which had assumed power in the Sudan in 1885, was defeated by a joint force of British units and Egyptian troops trained and officered by Englishmen. The duality in the act of appropriating the Sudan is emblematic of the dichotomizing fecundity of the colonizing structure that governed the country. An agreement between Britain and Egypt in 1899 created a condominium structure to administer what came to be known as the Anglo-Egyptian Sudan. This was in line with the proposal of the British Consul-General in Cairo, Lord Cromer, to create a hybrid form of government in the Sudan (Abd al-Rahim 1969, 31). The conquest of the Sudan is known as the ‘reconquest’ for very good reasons. The architects of the agreement wanted to foil any French objections to the occupation of the Sudan by the British. France would be disarmed by the reconquest thesis which meant that the Sudan was restored to Egypt. The right of Egypt over the Sudan by the conquest of 1821 was ratified by the Ottoman Sultan and was acknowledged by France.1 The ‘reconquest’ automatically announced the Mahdist period as null and void. The colonialists began the establishment of an effective system for the dispensation of justice. This led ultimately, but not automatically, to a dual judiciary comprising a Civil Division and Sharia Division that remained in place well into the independence era of the country. The former division administered criminal and civil law whereas the latter administered Islamic law reduced to Muslim family law. The knowledge and power underlying these jurisdictions of the nascent judiciary will be one of the major axes of this book. For criminal law the British looked to India and ended up having a Sudan Penal Code and a Code of Criminal Procedures simplified and adapted from the corresponding Indian Codes. Egyptian and Islamic penal laws (the Egyptian was an

1

The administration, established in the Sudan by the Egyptians in the nineteenth century, was called the Turco-Egyptian until it was ousted by the Mahdists in 1885.

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adaptation of the French continental laws) were ignored in the making of laws for the Sudan and, according to Zaki Mustafa, no explanation for this attitude can be found (Mustafa 1971, 43–44). After serious deliberations about civil justice, the new administration dismissed as unsuitable the application of Islamic, Egyptian, or English common laws (1971, 46–54). Instead, a Civil Justice Ordinance, based also on the Indian one as adapted in Burma, was promulgated in 1900 (Daly 1986, 61). The Ordinance instructed civil judges to decide cases according to justice, equity, and good conscience (Mustafa 1971, 54–55). However, this free phrase was used to receive the English law as the civil law of the Sudan as persuasively argued by Mustafa (1971) and ElKhalifa (1988). Because of a dearth of British judges the administrative officials ended up having to hear most of the cases for a very long time. The Sharia Division was established after the promulgation of the Sudan Mohammedan Law Courts Ordinance, 1902. The courts dealt with personal matters for Muslims. The posts in this division went initially to Egyptians, the co-dominos, until Gordon College of Khartoum, established in 1902, began training Sudanese sharia judges (Warburg 1970, 132–133). The Sharia Division was conceived in the framework of a policy of ‘respect and non-interference’ in religion stated by Lord Cromer, the British Consul-General in Egypt, who supervised the conquest of the Sudan, to Sudanese notables in 1898. The policy was adopted to preempt the rise of a new Mahdi like the one whose religious state the British had just finished subduing. Yet an indefatigable Sudanese notable in the meeting asked Cromer if Islamic law would be considered in the future laws of the Sudan (Salman 1977, 41). Lord Cromer answered in the affirmative. The administration was apparently careful both not to offend the religious beliefs of Muslims and not to apply ‘a body of substantive civil law based upon, or derived from, Islamic law’ (Mustafa 1971, 46). Martin Daly states that sharia was envisaged as an ‘enforcer of quietism amid the turbulence of a supposedly hostile and fanatic population’ (n.d.).2 Yet the essential subordination of sharia to colonial administration, he maintains, came later during the heyday of Indirect Rule in the 1920s and 1930s (n.d.). Chapter 2 will discuss this specific period. Respect to Islam had limits though. Lord Cromer had unambiguously directed his staff at the very beginning of the colonial period that his ‘respect and non-interference’ policy ought to not in any way tie the hands of 2

‘Law and Social Change during the Condominium,’ a conference presentation.

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the government from dealing with slavery (White 1889, 427). Making exception of slavery in the implementation of sharia might have come to Cromer as a colonial afterthought. Because he had promised the notables of the Sudan in 1898 that he would tolerate slavery on the principle of ‘Quieta non movere’ (“Let sleeping dogs lie”), (Owen 2004, 298–299). The book will examine the duality of the Judiciary as an aspect of a colonial geography in which a colony is dramatically compartmentalized into an authoritative, European, modern space and a subordinated, traditional, native space (Fanon 1968, 38–39). These distinctions were so pervasive in the colonies to have affected the constitution of cities, market places, neighborhoods, schools, languages, and forms of dress, down to types of shoes. In this geography, a space is identified as either European, modern, and culturally correct, or native, traditional and on the wrong side of history. Native spaces like the sharia courts and their qadis thus ‘do not only represent the absence of value, but also the negation of value’ (1968, 41). Frantz Fanon (1925–1961), the Martinique-born psychiatrist known for his early analysis of the anti-colonial struggle in Africa, represented this colonial geography as based on ‘Manichaean’ oppositions between the allegedly superiority of the European and the inferiority of the native.3 He drew in this description on the theology of Mani, the third century Iranian theologian, whose religion is built on a dualism of the two principles of light and darkness battling for the ultimate control of the world. The irreconcilability of the opposites in Mani’s theology influenced Fanon in describing the colonial condition as an unrelenting battle between the alleged superiority of the Europeans and the inferiority of the colonized. His oft-quoted statement, in which he coined the term ‘colonial Manichaeanism,’ dramatized the split between the colonizer and colonized, ‘The two zones [of the colonized and the colonizer] are opposed, but not in service of a higher unity. Obedient to the rules of pure Aristotelian logic, they both followed the principle of reciprocal exclusivity. No conciliation is possible, for of the two terms, one is superfluous’ (1968, 38–39). We owe ‘manicheism [Manichaean] delirium’ of the title of this book to Fanon too (1967, 183). As originally conceived by him, it is a form of colonial pathology—a constellation of delirium that mediates the 3 W.E.B. Du Bois’ ‘double consciousness’ of African Americans is an older conceptual precursor of Fanon’s Manichaeanism. Recent variations on Manichaeanism are ‘bicultural mind’ and the ‘bilanguaging mind’ which are also viewed as inscribed and produced by the colonial condition (Mignolo 2000, 267).

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colonial Manichaean geography in which the colonized is ‘tethered’ to, not confronted by, the colonizer. The shadow of the colonizer, in Homi Bhabha’s explanation of the concept, violates and traumatizes the colonial man by splitting his presence and disturbing and dividing the very time of his being (1994, 44). In another context, Mahmood Mamdani calls this Manichaeanism the ‘bifurcated world’ of colonialism where ‘the world of the “savages” [is] barricaded, in deed as in word, from the world of the “civilized” ’ (1996, 61). Colonialism, in this view, imposed disorder and inauthenticity on the margins of Europe. Subsequently, the life of the once colonized people is held hostage to distinctions they continuously make between ‘the authentic experience of the “real” world and the inauthentic experience of the invalidated periphery’ they occupy (Ashcroft et al., 1989, 87). In living in this Manichaean world, the colonized, as diagnosed by Jean-Paul Sartre, suffers from a ‘nervous condition’ for living in two worlds ‘that makes two bewitchings’ (in Fanon 1968, 20). The Manichaean principle will be treated throughout the book as a ‘disabling cultural framework’ (Ashcroft et al. 1989, 92) in which the ‘half-baked’ ex-colonized, in the throes of Manichaean delirium, have lost their mind and failed to make it in the world. A further reworking and elaboration of the Manichaean concept will be discussed later when we deal with the emergent criticisms directed at the concept in postcolonial scholarship. After laying out the Manichaean geography of the colony in Chapter 1, the rest of the book will describe a disarrayed and deranged postcolony that has been second-guessing itself to death. Key to this traumatic national experience is examining how this colonial ‘twoness’ played out in the arena of decolonizing the law unleashing an Islamic renewal which led to the enhancement of sharia, its courts, and qadis at the expense of the civil judiciary. To help readers follow the explanation of my theoretical orientations discussed below, I will begin by highlighting the content of the chapters of the book. Chapter 1: In the Shoes of the Colonized I will locate the duality of the Sudanese Judiciary with its authoritative Civil Division and the ‘disgruntled’ Sharia Division, in the colonial Manichaeanism as discussed by Fanon. Resolutely divided into European/canonical and native/deviant, the two spaces, the colonial’s and

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the native’s, were reciprocally exclusive and could never be reconciled. I will show that this Manichaeanism was so pervasive and contagious that it affected cities, market places, neighborhoods, schools, languages, and forms of dress, down to shoes. The chapter will describe the Manichaean organization of the Sudan Judiciary during colonialism and postcolonialism. It analyzes the colonial judicial, educational, and personnel policies that cast qadis as the ‘primitive other’ of the modern Civil Division of the Judiciary. It discusses the disempowerment of the qadis with respect to the disparity in terms of service and entitlement between them and civil judges, the housing of qadis’ courts in shabby buildings, and assigning qadis modest government houses and, unlike civil judges, denying them official cars. A graphic distinction between the two courts was the instructions given to policemen and prison wardens not to dignify qadis with the salute required for civil judges. The chapter will examine the lowly image of the qadis resulting from this professional humiliation. Relegated to Muslim personal law, distanced from the highways of politics and business, the qadis were ridiculed variously as ‘women’s judges’ by the male population for meddling in women’s affairs, and as the ‘Turbaned People’ by the effendis (graduates of modern schools) for allegedly collaborating with colonialism. Their ‘monkish’ dress, marking an anachronistic education, was the basis of the derogatory name. Chapter 2: A Tale of Two Courts: The Sharia of Allah and the Custom of the Patriarch This chapter will discuss the relationship between the sharia courts and native courts, which came into being as a result of the implementation of the system of Indirect Rule in the late 1920s by the British colonial power, as a glaring case of the disempowerment of the sharia courts. Using the correspondence between the different levels of the colonial administration, this chapter will argue that sharia as a national tradition was shortchanged in three different ways: (a) Indirect Rule gave untrained tribal chiefs sharia jurisdiction. Considering the fact that the native courts system was subordinated to British District Commissioners, qadis were dismayed by the authority British ‘infidels’ would hold in matters pertaining to a sacred law; (b) Endowing native courts with sharia jurisdiction was a prelude to the elimination of rural sharia courts which were assumed by the British to administer a textual Islam

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foreign to Muslims in tribal areas; (c) Creating hard and fast legal barriers between the sharia and native courts that prevented them from working out any meaningful relationship regarding their concurrent jurisdiction-sharia. The chapter will show that this mess of the colonized space was uncalled for since a wide range of constructive views and alternatives were submitted by sharia authorities to the administration at the time. Finally, I will investigate the discourse of ‘tribal’ custom at the heart of the policy of Indirect Rule as a sign of colonial fatigue. The area of this fatigue that will be touched upon is the giving up by colonialism on the urbanization it had brought about by subjecting the modern educated class, towns, and women to the will and custom of the patriarch. In turning law into an administrative convenience, I will argue, colonialism lost its allegedly original mandate of rescuing the country from its oriental despots. Chapter 3: President Ismail al-Azhari, 1965–1969: The Politics of Moral Injury This chapter and the next one investigate how presidential politics after independence in 1956 sought to profit from the historical and cultural resources of the Manichaean Judiciary. Chapter 3 describes the rise of the separate, well-endowed, and independent Sharia Division of the Judiciary in 1967 as a result of President Ismail al-Azhari’s (1965–1969) alliance with the qadis to respond to and manipulate popular rage against a variety of sexual perversions. Popular anger and revulsion took under its wings issues involving colonial legacy, national resistance, political legitimacy, communism, revolution, Islam, social change, tradition and modernity, morality, politics, and religion. A discourse on sexual laxity at the time eventually translated into a national program of Islamizing the state. In the debates over the nature of this Islamization and how best to implement it, various forces sought to gain advantage by exploiting the seam in the Judiciary. The Civil Division of the Judiciary, which jealously guarded the ‘colonial’ law and ‘secular’ constitution, brought the wrath of the President, alAzhari, on itself for blocking his every move toward authoritarianism. In this fight, the President drew on more than his memorable role in national resistance to colonialism. He ‘updated’ his legitimacy as a leader by putting the decolonization of the law on top of the national agenda.

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He succeeded in ending the unjust treatment of the Sharia Division. He also defended the implementation of sharia as the law of the land in a unique and persuasive way. He argued that making sharia the law in the Sudan was essential to unite Muslims’ currently competing legal and moral duties, and used the reconciled value systems as the basis of national identity and unity. Chapter 4: Nimerie’s Instant Justice: Tongue of God and the Rouge This chapter will continue exploring the way presidential politics bore on the politics of the Judiciary. In an attempt to rehabilitate President Nimerie’s experiment of implementing sharia and establishing al-ʿAdāla al-Nājiza (instantaneous justice) during 1983–1985, the chapter will focus on his judicial policies. The professional and political detractors of the experiment claimed that it turned these Islamic courts into legal pariahs. Sharia courts, they argued, were subservient. They also committed outrageous excesses. The execution of the elderly Islamic reformer, Mahmoud M. Taha, was one such horror; so were subjecting non-Muslims to Islamic law penalties of lashing, and amputation of arms and feet. While acknowledging the truth of some of these criticisms, the chapter will examine President Nimerie’s Islamization of the state in the light of the discourse on crime and punishment that raged in the Judiciary and society at large in the 1970s and early 1980s, and place this discourse in the wider Manichaean culture at the root of the duality of the Judiciary. In particular, the chapter will examine how the right of citizens to fair and timely due process of the law came to figure prominently in the conflict between the Judiciary and the executive during the last years of Nimerie’s era. In an undisguised critique of the delay in deciding cases, Nimerie had been promoting his concept of ‘instantaneous justice’ on the basis of this maxim: Justice delayed is justice denied. The members of the Judiciary, on the other hand, while not especially proud of their disconcerting backlog of cases, were extremely suspicious of instantaneous justice, because they regarded too hasty justice as injustice itself. I will examine the two positions as they developed during the showdown between President Nimerie and the judges in the years 1980–1983. These were years of economic depression that were

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popularly described as heartless and satanic. Both economic hard times and the moral interpretation of them fuelled Muslim popular passion, or rather outrage, for justice. Nimerie responded to these circumstances powerfully and persuasively by laying out and executing his concept of instantaneous justice. Chapter 5: The Qadis and Mahmoud M. Taha: Towards an Economy of Vendetta and Martyrdom I will use the rivalry of the two court systems to better understand the execution of Taha, the modernist Islamic reformer hanged by Nimerie’s regime (1969–1985) in 1985. The chapter will argue that the killing of Taha in 1985 was the delayed execution of a ruling passed by the Sharia High Court in 1968 condemning him for apostasy. This judgment would have meant his death had Islam been the law of the land at that time. Taha survived the ruling then because the jurisdiction of the court issuing it, inherited from colonial times, did not extend to matters of belief and politics. The chapter describes how the qadis and Taha had been at loggerheads since the 1968 ruling. The qadis continued a national and Pan-Islamic campaign to incapacitate him. Taha, on the other hand, never ceased rubbing in the colonial origins of the political impotence of sharia and the qadis. I will examine the political alliances and energies that made Taha’s delayed execution possible in 1985. Chapter 6: Growing Up in a Qadi’s Home: Hasan al-Turabi and his Theology of Modernity I will discuss the virulent Islamic revival, led by Hasan al-Turabi, a graduate of London University and the Sorbonne, as a ‘family romance’ writ large. Unlike other ‘biographies’ of al-Turabi which ignore his childhood, the chapter reconstructs al-Turabi’s religious experience to better understand the imagination and politics of his movement. As a son of a qadi, born on the wrong side of the Manichaean divide, alTurabi was traumatized by the colonial emasculation of his father and home. He scripted a unitary world of politics and religion to shore up the possibilities of father and home. By grounding politics in religion, al-Turabi appropriated Islam from impotent clerics who, irrespective of their personal beliefs, allowed Islam to recede from public life.

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introduction Conclusion: The Difficult Birth of the Unified Judiciary

The conclusion will discuss the difficult birth of the unified Judiciary in the country. It will describe how the two divisions stalled the executive decisions to amalgamate the Judiciary in the 1970s and 1980s. These decisions were only implemented in 1982 after President Nimerie compelled the Judiciary to adhere to them. This difficult birth of the judiciary, as a postcolonial predicament, will be explained with reference to the Manichaean gridlock of the former colony. This conclusion will discuss the professional and political memories, prejudices, fears, and powers judges and qadis invested in this war against the amalgamation of the Judiciary. In examining the conflicts surrounding the birth of the unified Judiciary, the modernists, as beneficiaries of the inherited colonial status quo of the Judiciary, resisted imagining the Judiciary, and the nation at large, out of its colonial fragments. The qadis, on the other hand, allowed their legitimate fears of being subordinated once more in the unified Judiciary, to stand in their way to engage in this inevitable evolution of the Judiciary. Forced kicking and screaming into accepting the merger of the institution, both judges and qadis did not invest their intelligence and imagination in this national enterprise. Towards a Theory of Decolonization This book draws on postcolonial theory particularly the work of Fanon, Edward Said, and Bhabha. In studying the qadis, a political pariah of the Sudan Judiciary, the book connects with the source of the postcolonial studies that began as a school of subaltern (which is Antonio Gramsci’s terminology for the ‘popular strata’ of the nation) studies for which India has become famous (Guha 1985; Spivak 1985). Previous work in postcolonial scholarship, dominated by literary historians, focused on textual representations of colonialism. By setting aside this concern over demonstrating how colonialist textuality ‘works at the level of image and language to produce a distorted representation of the colonized’ (Scott 1995, 192), this book dissected the British imperial ‘administrative imaginaire’ to define the postcolonial predicament as an ‘unfinished business of decolonization’ (Smith 1999, 7). In this revisit to colonial governance, the book used Michel Foucault’s concept of ‘governmentality’ to lay bare the irrationalities of colonialism that fragmented former colonies, the would-be independent nations, beyond repair.

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Unarguably, Islamism and other authenticity discourses are based on an endeavor by the colonized to reconnect with a symbolic past. At a time in which scholarship about religion is described as partially tonedeaf to the voice of religious people, the book enlisted insights of deconstruction, feminism, race, and class in order to rehabilitate Islamism as a legitimate political enterprise. To this effect, it developed a musical approach to religion as suggested by Max Weber who credited his friend, Georg Simmel, for having an ear for religion whereas he himself lacked one. To this effect, the book used Basil Davidson’s colonial ‘moral injury,’ the spiritual shame colonialism caused Muslims to experience, to argue the political legitimacy of Islamism as a decolonizing movement. In moving beyond the prevailing explanations of the phenomenon with their focus on state politics and elites, the book developed the notions of ‘religiosity’ and ‘religiousness,’ commonly used in postcolonial studies, to give average Muslims agency in Islamic renewal as a political movement. The argument will be repeatedly made that Islamism is the political kingdom, or utopia, in which Muslims’ language of right and wrong, assembled in opposing the brutal regimes of the postcolony, was transferred into a political science of justice and equality (Malley 1996, 238). The book therefore presents a good case of what Louis Brenner described as Muslims ‘injecting themselves into the political arena as (italics in the original) Muslims’ (1993, 1). I will, furthermore, revisit modernization theory to problematize its cherished polarity of the ‘modern’ and the ‘traditional’ (Cooper and Stoler 1997). To this point modernization theory has been dominant in analyzing Islamic renewal. Critics are beginning to argue that the production and investment in its key words, tradition and modernity, has gone largely unexamined. They faulted the theory for ignoring the power at the root of these binary oppositions. The activism of the qadis, identified as traditional (and thus on the verge of extinction) to subvert the powerful Civil Division is analyzed to gain insight in the ‘forms of domination belonging to the structures of [colonial] modernity’ (Mignola 2000, 188). In bringing the Manichaean gridlock underlying these oppositions to bear on the study of the sharia/civil courts conflict, the book makes a good case for the existence of what scholars call ‘multiple modernities’ (Taylor 1999, 12). To better understand the discourse and practice Islamists engage in to make the case for the atonement of the state to God, the book explains Islamism with specific attention to race, gender, and class as analytical categories. Besides highlighting their relevance to my analysis in this

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section of the introduction, I will not explain them further here. I will devote the remainder of this introduction to explaining my other theoretical categories such as postcolonialism, governmentality, modernity and tradition, etc. This book intends to account for Islamic revival beyond the existing political highlights of elite culture and identity feuds, which, in Rex O’Fahey’s view, are not enough. In taking the notorious Nimerie’s 1983 Islamic experiment as the beginning of Islamic revival in the country, modernist scholars misrepresent this complex, encompassing process that has been at work since the 1960s, or even earlier. O’Fahey wants to see an account of Islamism that appreciates what was going beneath the culture, conflicts, and histories of ‘the westward-regarding elites’ (1996, 262). This book seeks to look ʻa little behind politics, for that which ought to limit it, unconditionally’ (Foucault 1999, 134). It is also intended to go beyond scholarly fads. It is based on a recognition of the criticisms voiced that the current overemphasis on political Islam, just like past zeal in studying village or Sufi Islam, distracts us from coming to grips with the complexity of Muslim societies (White 1995, 350). To this effect the book attempts to satisfy O’Fahey’s other condition for a rounded understanding of Islamic revival by engaging in an in-depth analysis of the modern and economic milieus of urban Sudan (1996, 263). The book situates the drive to Islamize the state in the 1970s and 1980s in an economy of mughtaribīn (Sudanese emigrants) employed in the oil-rich Arab Peninsula. The infusion of the huge remittances of these immigrants cracked the seemingly egalitarian society of northern Sudan. The resulting differential of wealth, the sprees of extravagant consumption, and the brewing of new crimes of unlawful gain dismayed Muslims. They naturally viewed this economy as the state of bāṭil (vanities) of whose unholiness their sacred texts spoke volumes. Chapter 4 will examine the social and moral impact of this errant economy on Muslims as reflected in the public discourse about the administration of justice that took the nation in its grip in the late 1970s and early 1980s. In this discourse, popular sharia notions of justice battled the entrenched substantial and procedural laws inherited from colonial times. Islamism will also be viewed as a manifestation of the difficulty of the Muslim, Arab northern Sudanese with those who are different racially and culturally in the nation. Chapter 4 will examine the deployment of religion by these Muslims to monitor the demographic and moral

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boundaries of their sprawling cities in the north incorporating new arrivals from the remote southern and western parts of the country. These non-Arab and/or non-Muslim newcomers, the guests of the nation, poured into Muslim space from beyond the limits of the right faith and race. No wonder, Islamic revival in the Sudan smacks of what Fazular Rahman calls ‘punitive Islam’ (1982, 31) in which emphasis is laid on ḥ udūd (boundaries; sanctions). The book develops more fully the northern Sudanese’s problem with difference I touched on in my Assaulting with Words: Popular Discourses and the Bridle of Sharia (1994). In their pride in being Muslims and ‘sons of Arabs,’ the northern Sudanese fantasize others—non-Arabs and non-Muslims Sudanese—as cannibals. This book studied the workings of this fantasy at a time when these dislocated ‘cannibals’ swarmed traditional northern Sudanese towns as a result of the incessant civil war, famines, and draughts. Islamic revival is thus viewed in this book as a scramble by the northern Sudanese to keep their cultural boundaries, which dangerously overlap with the nation, intact. The book engages gender in the context of an intricate treatment of patriarchy as a social order. To this effect, it investigates and elaborates two concepts: ‘the effeminization of the sharia court’ and the ‘remusculinization of society’ (Hale 1997, 91). Chapters 1 and 2 will discuss the effeminization of the sharia court in the light of restricting Islamic law by the colonialists to family jurisdiction. In Julia Clancy-Smith’s words, ‘Islam had been moved from the battlefield into the bedrooms’ (1996, 53). In having their law relegated to the bedroom away from the corridors of business, politics, and power, and made available to litigious, assertive women, the qadis were ridiculed variously as ‘women’s judges’ by the male population for meddling in women’s affairs. Chapter 2 will discuss this effeminization of sharia with reference to the discourse of custom and law that engaged colonial administrators when the British switched from direct rule to Indirect Rule in the 1920s and the 1930s. By implementing Indirect Rule, a retreat from doing business with the educated classes brought by colonialism into the world, the colonialists wanted to shore up the authority of their new allies—the ‘tribal’ chiefs. In the scheme of Indirect Rule, the sharia courts, which administered a territorial law supervised by professional judges, was viewed by the British as disruptive of the work and peace of the native patriarchs. Consequently, the British wanted to eliminate them from rural Sudan. This projected liquidation was preceded by

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a policy endowing native courts with a sharia jurisdiction. However, this sharia was understood to be Islamic law as interpreted by native customs. In putting tribal women under the rule of the patriarchy, I will argue, the British had actually subjected them to a law inferior to sharia as colonial administrators themselves later acknowledged. Men called a qadi a ‘women’s judge’ out of spite because aggrieved women, who fared better in his law, preferred sharia courts to the native courts that administered the custom of the patriarch. On a different but related level of analysis, Chapter 3 will deal with a critical time of the Islamization of the law fuelled by a certain decadence that put masculinity, the mainstay of Muslims to establish a moral order, in jeopardy. In recognition of the chasm between the inherited colonial, legal codes and the Islamic moral law, Muslims revisited legalized prostitution as a colonial relic and succeeded in legislating an anti-prostitution act in 1968. A further take on gender will be seen in Chapter 4 which highlights the adverse social consequences of the mughtarbīn economy which jeopardized the seemingly egalitarian nature of northern Sudan. Women were particularly disadvantaged by this development that brought their right to work, warmly espoused as part of the state feminism of the 1960s, to negative scrutiny. In Sondra Hale’s words the gender constraints attending to the mughtaribīn economy led to an intricate ‘remusculinization of society’ (Hale 1997; Bernal 1994) that will be discussed in Chapter 4. A History of the Present In revisiting colonial knowledge as inscribed and reauthorized in the dual Judiciary of independent Sudan, the book adopts the postcolonial theory which addresses the difficulties of former colonies as the unfinished business of decolonization. The areas of interest of the book are those typically discussed by the theory: power, knowledge; subjectivity; resistance; nativism or cultural nationalism; hybridity; collaboration; internal colonization; modernity; tradition; critique of the enlightenment narrative. Turned off by the much debated ‘post’ in ‘postcolonialism’ in the field (Appiah 1992), Gyan Prakash suggests a banal name for the scholarship: ‘after colonialism’ (Prakash 1995). According to him, the scholarship is an enterprise prying colonial hierarchies of identity and values to

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reveal ‘sources of knowledge and agency simmering beneath the calm surface of colonial history and historiography’ (Prakash 1995, 4). Linda T. Smith argues that colonialism is too much with the former colonized to begin calling it a past. She says, ‘[I]imperialism cannot be struggled over only at the level of text and literature. Imperialism still hurts, still destroys . . . [the talk] about colonial past is embedded in our political discourse, our humor, poetry, music, storytelling and other common sense ways of passing on both narratives of history and an attitude about history’ (1999, 19). To wrestle with the postcolonial failures, one is cautioned not to turn colonialism into a ‘legacy,’ that is, a linear link between the colonial and postcolonial societies. For a richer knowledge of colonialism and the predicament it passed on to former colonies, Frederick Cooper and Ann Stoler advise us against this free use of the concept of colonial legacy, ‘The very ease with which we often use the term “colonial legacy” carries the suggestion that we already know very well what the oppressive coordinates of that legacy are and that this legacy constituted a recognizable, if not unchanging, bundle throughout the decades of postcolonial history’ (1997, 33). Instead, one is advised by Cooper and Stoler to look for the continuities and ruptures between the colony and the postcolony (1997, 6). For interrogating a present suffused with the colonial past, this book is a history of the present as spelt out by Michel Foucault. Because colonialism was the only thing of importance to the former colonized, postcolonial studies are advised to pose as a history of the present (1997, 33). A history of the present, according to Foucault, disclaims capturing the meaning or significance of a past age. Unlike presentism or whigism, which track interests back into history, a history of the present locates the acute manifestations of a ‘meticulous ritual of power,’ such as the colonial judiciary, the subject of this book, to see where it emerged, how it was fashioned and assumed importance, and effected (infected) the lives of people (Dreyfus and Rabinow 1983, 118–119). The studies of the history of the present thus require the development of a historical consciousness of the present with a persistent vigilance against studying the colonial period ‘as if it has no relevant successor’ (Breckenridge and Van der Veer 1993, 18). For the postcolonial predicament assumes that the construction and study of colonized societies is underlain by colonial knowledge.

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introduction Colonial Hyprids, Colonized Sentenials

The Manichaean order of colonial knowledge has been one of the most divisive issues in postcolonial theory. This book seeks to take the best of the two competing orientations in the scholarship regarding the career of colonial knowledge in the colony. The bone of contention of the two theories is whether resistance to colonialism has an originary authentic status. The Fanonian Manichaean theory claims it to be as such characterizing colonialism as domination and violence pure and simple. According to the nationalist extreme version of this view, the colonized can slip out of the colonial condition and resume their original history as if colonialism never happened. This position is currently under attack for ignoring that colonialism not only annulled original histories, but also left an indelible imprint on the present and future of the former colonies. Colonialism, scholars of this position argue, did not close business because of resistance as advocated by nationalists. Nationalists themselves are said to be held in a relationship of interdependence with their colonizers. The qadis praxis discussed in this book revisits this debate that is animating postcolonial studies on whether resistance to colonialism, or nationalism, was the action of identifiable subjects, that is, nationalist elites, separable from the culture and identity of the colonizer. At the risk of simplifying a complex debate, the parties to it may be identified as the ‘sentinel’ and the ‘hybrid’ schools or orientations. The aspect of this debate which interests me the most is the way the two schools view the colonial intellectual: is he a sentinel ‘permeated with colonialism’ (Fanon 1968, 45) to necessitate a redemption, or is he a new breed altogether, a hybrid, who is homeless in his two worlds of the metrapole and the colony? The sentinel position, the older of the two positions, was formulated by Frantz Fanon in 1961. It sets for decolonization the mission of wrecking the frivolous colonial world (1961/1968, 40–41). A colonial elite, however, can only perform this task if he is rescued from his colonial culture that ‘dusted him over.’ Resisting colonialism is supposed to redeem him. In the process of the liberation war, colonial elites supposedly return to the people in what Fanon described as a taking part ‘in a sort of auto-da-fe[purge] in the destruction of all his idols’ of egoism, recrimination that springs from pride, and the childish stupidity of those who always want to have the last word’ (1968, 47). The elimination of the colonial world after independence, according to Fanon, is intended to deny the colonized elites playing the role of the ‘vigilant

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sentinel’ in the former colony defending the ‘Greco-Latin pedestal’ (1968, 46). Because it had been implanted in their minds that decolonization should not question the essential principles of Western culture and canons which ‘remain eternal in spite of all plunders men may make,’ colonial elites believe, according to Fanon, that they could set up lines of communication between the metrapole and the independent nation. Apparently, these essential Western values never expire for the elites by independence. In contrast, the liberated colonized masses, pronounced ‘insensible to ethics’ by the colonizers, according to Fanon, ‘mock at these very values, insult them, and vomit them up’ (1968, 43). Hybridity, as the condition of the colonial world, has been developed by Homi Bhabha to argue against the Manichaean principle assumed by Fanon’s colonial geography.4 In denying resistance an authentic or originary status, hybridity is intended to describe the colonial encounter as a ‘double inscription’ causing an irreversible ‘transculturation’ affecting both the colonized and the colonizer (Hall 1996, 247). The Manichaean colonial situation, in Bhabha’s view, does not take into consideration the indeterminacies of the situation in which the colonized and the colonizer are held in a relationship of interdependence (Young 1990, 145). Bhabha identifies these indeterminacies and interdependence as an ‘ambivalence’ inherent in the colonial condition (Young 1990, 141). In this economy of colonial interdependence, resistance exists as ‘the effect of ambivalence’ within the colonial authority enabling the colonized to engage in subversion which does not make him or her a ‘subversive agency’ in his or her own right (London 1994, 101). Colonial power, it is argued, is a production of this hybridity ‘rather than the noisy command of colonialist authority or the silent repression of native traditions’ (Bhabha 1994, 112). Hybridity, of course, did not sit well with those who continue to see a merit in viewing colonialism as a confrontation between the forces of domination and the forces of national resistance (Bhabha 1994, 112). Said, for example, views colonial discourses, such as Orientalism, as a

4 For the explanatory potential the Manichaean concept still holds see Stoler (1995). In the realm of sex, where she endorses the Foucauldian notion that sexuality is a dense transfer point of power, she shows how colonial authorities rested its power on distinguishing between ‘desire and reason, native instinct and white self-discipline, native lust and white civility, native sensuality and white morality, subversive unproductive sexuality and productive patriotic sex’ (1995:179). Also, Jan Nederveen Pieterse and Bhikhu Parekh find the Manichaean principle underlying the relation of the West and the rest as represented in Samuel Huntington’s ‘clash of civilizations’ and others like Benjamin R. Barber’s ‘Jihad versus McWorld’ (Pieterse and Parekh 1995, 14).

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site of power ‘possessed entirely by the colonizer’ thus positing a ‘binary opposition between power and powerlessness’ (Young 1990, 141). In advocating the unity of the colonial subject, comprising the colonized and the colonizer, the hybridity concept is criticized for intimating that the colonized is somewhat in possession of colonial power (JanMohamed 1985, 59–60). It is also criticized for dissolving the politics of resistance by posing no clear opposition between the colonized and the colonizer. Hence, the hybridity concept is viewed as celebratory for making the ‘final closure of a historical epoch, as if colonialism and its effects are definitively over’ (Hall 1996, 243). Abdul R. JanMohamed argues that whatever power the colonized might have possessed was a product of ‘deliberate, if at times subconscious, imperialist duplicity, operating very efficiently through the economy of its central trope, the manichaean allegory’ (1985, 61). In denying resistance a status of being an ‘oppositional act of political intention,’ hybridity, in the physical evidence of resistance or perception of it, is a difficult position to hold in a consistent fashion (London 1994, 101).5 When it is judged against realties of power and administration, and not merely on the textual level, hybridity hardly proved to be a likely outcome of the colonial encounter. It is a condition the colonialists brought to life, but reneged in carrying through with it. They were too proud, or scared rather, to own up to the sea change they had caused in the colonies. They even retracted the little modernity they had introduced by fabricating a pre-colonial authentic Africa in what Renato Rosaldo called ‘imperial nostalgia’ (1989). The retracting process is usefully called ‘colonial surrender’ by Mamdani (1996). Chapter 2 will go into the details of these processes when we discuss how the colonial regime resorted to Indirect Rule in order to put in place the ambitious educated class which came out of the cloak of colonial education. As an investigation of the qadis as a field of subjugation (Bond and Gilliam 1994, 10) in colonial and postcolonial governance, my work revisits the ‘sentinel v. hybrid’ beyond the terms of nationalist resistance 5 Robert Young has even noticed that Bhabha retreated from his original position of the ambivalence of the colonial condition to the more conventional Manichaean position he criticized earlier (1990, 149). Indeed, Bhabha’s retreat is indicated by the connection he makes between his ‘colonial nonsense’ and Fanon’s ‘Manichaean delirium.’ Both concepts describe a serious rupture in the colonial narrative not warranted by the hybridity thesis. Bhabha himself has brought his colonial nonsense to bear on Fanon’s Manichaean delirium (1994, 131).

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or colonial hybridity. We have seen arguments made as to the reality of both categories. But what interests us here is how these identities of the colonized elites were, or still are, situational and ultimately determined by the exigencies of the ir(rationalities) of the colonial and postcolonial state. Neither hybridity nor resistance are fixed cultural conditions of the colonized elites. However, both are apparently likely responses or strategies in the colonial setting. We will see how these identities emerged in the colony and postcolony: what cultural regimes and powers constituted them; what (ir)rationalities utilized, or wasted them? How colonial elites fought their differences, and the nature of the resources and alliance invested in the fight? The qadis had a checkered history comprising resistance, hybridity, collaboration, and sly civility. The ease qadis felt with modernity is frequently presented in the literature in the hybrid terms common in postcolonial studies (Bhabha 1994). As graduates of the hub of colonial modernity (Khartoum’s Gordon College), qadis originated in a context of hybridity. In practicing sharia they had to meet colonial modernity half-way by relinquishing, or softening, the letter of their laws on questions of slavery and women. In accommodating the colonialists, not untroubled by what they saw as excesses of the colonial imperative, the qadis were acting out of their conviction that they had to come to grips with the sea change in life after the imposition of colonialism. Bowing to the realities of colonial power, the qadis were willing to accommodate changes to their tradition. Consequently, they could have been the ideal candidates of colonial hybrids. Colonial texts flaunting the happy hybridity of the qadis are not lacking. Mustafa al-Maraghi, the Egyptian Grand Qadi of the Sudan (1908– 1915), was described as leading a very modern life including eating with fork and knife and rode well-dressed horses (muṭahama). He also used his social fluency with the British to negotiate better salaries for qadis and other statuses such as being invited to official ceremonies and other entitlements (ʿAmir 1979, 90).6 A generation of qadis from Gordon College took to his lifestyle. They played polo, tennis, and soccer.7 6 He occasionally cajoled the British in seeing his point. He coerced the British in increasing qadis’ salaries by not appointing new qadis. To make up for the shortage of personnel, he would send qadis on treks to courts without qadis, and paid them travelling allowances. This increase in travelling allowance money brought the British to the negotiating table (‘Amir 1979, 91). 7 Qadi Majdhub Kamal al-Din told me that he played soccer for a team in the city of Khartoum in the 1930s. He was dribbling the ball to score in the goal of the opposite

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Texts on the hybridity of qadis, and fraudulent ones at that, also exist. A textual scholar could easily take them for the real thing. A British administrator was moved by a Christmas card sent by a qadi with a typical Santa greeting: May Santa bring you all the best From out his reindeer sleigh The dolls and toys and picture books Your heart could wish today (Bell 1999, 151–152).

Furthermore, R. Davies, a British administrator, commended a qadi for teaching him Arabic using lyrical poems rather than texts from Qur’an. A line of the poem describes the woman lover signalling with a ‘glance of the eye, fearing her people, a signal of sadness, but she did not speak’ (1957, 33). D.F. Hawley of the Sudan colonial service even points to qadis, who rose to very senior posts in their department before this became possible in other departments of government, as should have engendered trust in Sudanese junior officials (1991, 45). Notwithstanding the inferior status of sharia court vis a vis the civil court during the colonial period, Hawley in 1982 described the relationship between the two courts as had been characterized by a ‘happy rapport’ (1991, 46). This apparent hybridity did not work in reality. The qadis’ narrative as it unfolds in this book is one of colonial and postcolonial denial of hybridity to the qadis. The Sudanese judges of the Civil Division proved to be even more adamant than the British in subordinating the qadis as different ‘others’ and keeping them in their colonial box. Apparently, the Manichaean order of the colonial world is too real for the hybridity thesis to gloss over. The concept of the Manichaean geography survived the hybrid thesis and emerged more nuanced. The way Cooper and Stoler reformulated the Manichaean character of the colonies sounds more convincing. Though they see the colonial world as fluid and hybrid, they are puzzled by why the Manichaean dichotomies ‘had such sustaining power’ in the face of observed hybridity (1997, 9). Their puzzlement, to which my book subscribes, describes a horn of dilemma they faced in the historiography of colonialism. On

team, when he heard the most caustic taunts in his career as a player. A man from the terrace shouted at him, ‘Inkiḥ a!’ (give her in marriage; ‘F . . . it’ in common usage). He did not like this reference at all to his work as a qadi in the soccer context. Interview, Khartoum, June 1992.

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the one hand, colonialists, as borne out by colonial archives, were in the business of defining a colonial order of Manichaean dichotomies and distinctions. But the untenable boundaries created in the process, Cooper and Stoler state, proved an elusive task and undermined the ability of the colonialists to rule. On the other hand, Cooper and Stoler believe that the Manichaean principle, for reifying the confusing social and political relations of the colonial encounter, is a myth. A way out of this dilemma, according to them, is to investigate the histriographical energies invested in the Manichaean myth along with the colonial history that appears as Manichaean (1997, 9). This will be the approach adopted in this book. The Manichaean myth, however, should in no shape or form be construed as less oppressive or hurting. The qadis investigated in this book had this myth as their condition of being and service. The suffering they endured because of being born on the wrong track of the myth was immense and disfiguring. Postcolonial Predicament My work comes at a juncture in colonial and postcolonial studies in which complaint is voiced that they failed to come to grips with the colonial predicament identified as ‘colonialism which survives the demise’ of Europe (Varadharajan 1995, 140). Critics argue that postcolonial discourse became too much of a textual exercise to illuminate this postcolonial predicament. In this enterprise, critics argue, scholars study colonialism exclusively in terms of textual rhetoric in colonial literature represented by travel accounts, biographies, and bureaucratic memoranda, thus forcing texts to provide evidence they do not contain. In confining their research to colonial texts, and making the colonial narrative ‘sufficient unto itself,’ colonial studies, it is argued, fail to come to grips with the postcolonial predicament (Breckenridge and Van der Veer 1993, 16; Pietersa and Parekh 1995, 13–14). Postcolonial studies, long on intellectual history and short in speaking to the management of the colonies and former colonies, failed to gain access into the ‘administrative imaginaire’ (Breckenridge and Van der Veer 1993, 6) at the root of the failure of the project of decolonization. Lack of interest in studying this imaginaire is attributed by Stuart Hall to the fact that the field has been ‘most fully developed by literary scholars’ whose intellectual concerns do not cross to questions of economy and administration (Hall 1996, 258). The time has come, according to

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Breckenridge and Van der Veer, to spell out some of the links between the ‘poetics and politics of colonial discourse and the practice projects of colonial rule’ (1993, 6). Postcolonial studies have been urged to engage in investigating issues of governance of the hybrid ‘half-made’ colonial world v. universal Europe (Bhabha 1994, 104). To understand the ‘order’ imposed by colonial and postcolonial states, these studies have to examine knowledge-related projects specialized, in Said’s words, ‘in particularizing and dividing things oriental into manageable parts’ (1978, 72). In investigating the Manichaean culture of the Judiciary, this book brings to light an actual physical circumstance and a consequence of this colonial subjugation (Bond and Gilliam 1994, 14). Colonial Governmentality My study of the Manichaean judiciary, an institution of governance saturated by colonial knowledge, subscribes to an emerging scholarship of colonial governmentality (Scott 1995). Instead of examining policies, institutions, and performance of various governorships, a colonial governmentality treatment endeavors to come to grips with the postcolonial predicament by seeking a complex understanding of power in the colonies (Cooper and Stoler 1997, 20). A consensus is emerging among scholars that understanding this power will come through subjecting colonialism to a critique leading to a reflection on the evolution of the colonial knowledge at the root of the postcolony. Although colonialism was never a concern of Foucault, his concept of governmentality has been suggested as a starter to investigate the colonial state. For it is Foucault who analyzed the rationality of the state in Europe in its shift from autocratic to democratic regimes in the late eighteenth century. Postcolonial scholars are intrigued by the paradox that it was these modern, rational regimes in Europe which began ‘to impose new forms of despotism on the rest of the world’ (Moore-Gilbert 1997, 158). David Scott has made the case for studying colonial governmentality because it usefully leads to the study of the European culture that went into its constitution. In his view, European hegemony is at the root of the postcolonial predicament. He subsequently calls for a scholarly enterprise to decenter Europe, but never let up critiquing the knowledge by which it constructed non-European world (Scott 1995, 192). Scott therefore calls on scholars to concentrate on analyzing colonial governmentality in the light of Foucault’s conception of government

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as the form of power constructing the normative (as an enabling as well as constraining asset) regularities that positively constitute civil society (Scott 1995, 204). This reorientation of the colonial problematic led Scott to focus on ‘the problem of power and the modern in their colonial career’ (Scott 1995, 194). As a result, he is more focused on the ‘political rationalities’ of colonial power. He defines this colonial political rationality as that which characterizes ‘those ways in which colonial power is organized as an activity designed to produce effects of rule.’ What Scott believes to become important by this new orientation is the critical interrogation of ‘the practices, modalities, and projects through which the varied forms of Europe’s insertion [emphasis in the original] into the lives of the colonized were constructed and organized’ (Scott 1995, 193). Investigating the sour grapes of the postcolonial order has led some scholars to revisit colonialism in ways antithetical to the nationalist ‘consecrated rhetoric’ (Heesterman 1978, 31) which has taken all the credit for the demise of colonialism. In the perspective of this revision, colonialism is seen as its own grave digger. Constrained by conflicting local contexts, colonial administrations, it is argued, had to make ad hoc adjustment (Phillips 1989, 11–12). Decolonization is viewed by these revisionists as a ‘recognition of the failure of colonialism rather than a response to the powers of nationalism’ (1989, 13). It is true perhaps that decolonization has been studied with an overemphasis on resistance. For a better understanding of resistance itself, scholars argue, it is useful to start discussing it in a ‘skeptical frame of mind’ (Gledhill 1994, 82). Basic to this revision of the reasons that led to the end of the empire is an investigation of the inherent disabilities of the colonial state (Robinson 1972; Phillips 1989; Darwin 1991). In studying colonial regimes as lame governments, one can have a proper perspective on colonial resistance which has been drumming up its achievement by picturing these governments as the incarnation of evil and power. This lameness of the colonial state comes through in what a former colonial administrator, Eliot Balfour (1932–1954), said in a reflective mood at a conference in 1982 (Lavin 1991 Vols. 1 and 2). He confessed that the colonial regime in the Sudan exhausted its mission in 1926 when it finished building the Sennar Dam which facilitated the irrigation of an extensive cotton scheme in the country. After that, he said, there had been a hiatus. ‘Nobody really knew; the task has been done,’ he said, ‘we were carrying the same old thing and not quite certain where we were going’ (Lavin 1991 Vol. 1, 32). Cooper and Stoler view

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colonial regimes as less coherent, monolithic, or omnipotent as believed to have been by resistance scholars since the 1960s. Closer studies of colonial governance, they argue, reveal that they experienced ‘competing agenda for using power, competing strategies for maintaining control, and doubts about the legitimacy of the venture’ (1997, 6).8 For its basic weakness behind the facade of efficiency and violence, the colonial state has been called a ‘facsimile of a state’ (Phillips 1989, 11). Its original sin, according to J.C. Heesterman, was that it had been taken out and set apart from society (1978, 54). This dramatic severing of the colonizer and the colonized is reminiscent of Fanon’s characterization of the colonial condition, for being unswervingly divided into European and native quarters, as ‘Manichaean.’ Heesterman (1978) discusses the distinct worlds of colonialism in their reciprocal exclusivity to underline his argument that the role of nationalism in decolonization should not be overemphasized. Researchers, as stated above, are thus increasingly inclined to explain the end of the empire with reference to colonial ‘governmentality.’ In its Foucauldian sense, governmentality is a historically evolving competence rulers acquire through possessing the art of government (Foucault 1991, 93). The concept of government Europe has known since the medieval era is apparently foreign to the colonial government.9 Not unlike medieval states, for whose rulers Machiavelli wrote The Prince, the foundation of the colonial state is the territory not the people. As a state categorically defined in terms of its surface area (1991, 105), the colonial state, although an extension of a fully fledged government at the metropolis, retreated into a governmental ‘infantile disorder’ in which the art of government had still to be invented. According to Foucault, a government as we know it now evolved hand in hand with the

8 However, these studies, according to Cooper and Stoler, do not dispossess the colonialists of power but are rather discerning in determine the specific forms of violence and the times of their occurrence (1997, 6). Nicholas B. Dirks also suggests that in-depth studies of colonialism, as a cultural regime, will make us ‘realize that [colonial] cultural intervention and influence were not antidotes to the brutality of domination but extension of it’ (1992, 4–5). Hybridity and collaboration, suggested to credit colonialism for maintaining its authority by cultural persuasion, argues Dirks, will allow us to see ‘anew the expanded domains of violence’ (1992, 4). 9 Cooper and Stoler brought up some relatively old notions which attempted to understand the contradictory nature of the colonial state. John Lonsdate and Bruce Bremary (1979), they state, has already put ‘contradiction at the center of the colonial state’s operative model’ by which it mediates far more conflicts than the metropolitan state which has capital and labor to contend with (1997, 19–20).

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evolution of the concept of population. As long as colonialism was essentially about land-grabbing, a ‘struggle over geography’ (Said 1993a, 7), an imagination conceiving of its dependencies as a territory, never a people (Bhabha 1994, 97), a colonial administration could never have been other than a pre-government institution. Cecil Rhodes’s admission: ‘I prefer land to natives,’ has lethally summed up the priorities of colonialism (McClintock 1995, 289). In this light, the long accursed ‘Divide and Rule’ (Robinson 1972, 134) might prove, after all, to be an insidious, incurable colonial disease rather than a deliberate, political design.10 Heesterman (1978) is devoted to laying bare the basic disabilities of the colonial facsimile state. This state in India, argues Heesterman, was doomed to be short-lived because it was reluctant to take roots in the country. Instead, it created a situation in which Indians and British impinged on each other but they had their being in different worlds. Their encounters were incidental and limited to specific activities and only for the duration of the activity (Heesterman 1978, 54). To preserve itself from the run-away effects of involvement in society, the colonial government refused to work with Indian influence networks and their leaders. Instead, it dealt with categories and legal abstractions. In the cases where it had to widen or deepen its dealings with the society, it did so by reducing total situations—the fluid and multidimensional web of relations that is the substance of society—to abstract models amenable to impersonal rule and regulations (1978, 53). Consequently, the society became more parochial and fragmented because it lost much of its diffuse but effective coherence (1978, 54). In seeing the colonial state as a machine of set purposes executed by calculated violent means, the nationalists ceded rationality to this state. Yet, the rationality of this state has been the subject of an interesting revision of late. Scholars have concluded that this state was impaired by a number of factors. As a state derived from a modern modality in the metrapole, it was seen by the colonialists to be too good for the colonies. It therefore had to compromise its ‘pieties of progress’ on the grounds of the expediency and the exceptional circumstances of the colonies (Prakash 1995, 3). Far from imputing bad faith to the colonialist for

10 Distraught by inner conflict in the nation, Mohammed Ali Jinah, the founder of Pakistan, said that a better formulation to the ‘Divide and Rule’ colonial tactics is ‘We divide, They rule.’

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not following modernity through in the colonies, Prakash argues that the colonial state was basically not prepared for such a mission. Prakash argues that this state, as a form of translation between incommensurable cultures, had to give up on the project of colonial modernity in a fundamental way (Prakash 1995, 3). Bernard S. Cohn has already argued that the staging of British power in India ‘as a feudal order was never displaced by its programs of modernization’ (Moore-Gilbert 1997, 159). It struck Joseph Schumpter (1951) as irrational that colonial conquest and command had taken ‘pride of place over market and bureaucratic rationalities’ (in Cooper and Stoler 1997, 3). The colonial state is also viewed as lame for its failure to soften violence by hegemony. Hegemony is understood here as denoting a situation where the subjects do not accept the ideology of the master ‘but that they mistake it for their own.’ The colonized, however, had never felt this politically binding misrecognition toward their colonial state. Notwithstanding claims of hybridity, the radical racial and cultural Manichaeanism of the colonial situation was such that the bulk of the colonized population would not mistake the position and attitudes of the colonizer for their own. Hegemony ‘works when the individual subject is created in the image of the official ideology, not when that ideology proclaims the subject an alien’ (Booker 1997, 8). If it ever existed, hegemony, it is argued, was supplemental to colonial power (1997, 7). This book addresses the political rationality of the colonial state. The theory informing my data analysis underlines a paradox in the colonial legacy: the pattern of a rationalized administrative structure such as the colonial government whose policies and actions led communities it held sway over to be more parochial and fragmented (Heesterman 1978, 54; Gilmartin 1988, 44). My narrative of the court system in the Sudan is intended to show that the hard and fast Manichaean barriers whimsically created by the colonial administration prevented the various courts of the justice system from working out any meaningful relationship regarding the administration of justice. This colonial difficulty, I will argue, is at the root of the postcolonial predicament. In Chapter 2 we will see that the colonial government, in its drive to implement Indirect Rule, gave concurrent sharia jurisdiction to sharia and native courts. Colonial administrators were perhaps right in pointing out that the natives interpreted qadis’ sharia differently to warrant giving them control over the administration of their version of sharia. Nonetheless, sharia could have provided the rudimentary ‘repertoire of concepts and styles of authority’ to glue a ‘tribal’ Sudanese community

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by encompassing the collision of values and interests within a common Islamic idioms (Gilmartin 1988, 44). The barriers created by the colonialists caused the native and sharia courts not to be on speaking terms. The two courts, as we will explain in Chapters 3 and 5, continued as bad neighbors well into the independent era to the detriment of the coherence and rationale of the new nation. Similarly, the split of the Judiciary into sharia and civil courts came to haunt the negotiations for a unified judiciary for the new nation in which the moral and legal laws of Muslims in the Sudan had been envisaged to dovetail. In the conclusion, we will see the difficulties the legal profession encountered in this process. In prejudging sharia as premodern, colonialists shortchanged it in the reception of the common law in the country. In a typical case of internal Orientalism, Sudanese civil judges, brought up in the colonial prejudice against Islamic law, argued well into the independent era that sharia does not suit a modern state (Lutfi 1967). This skewed process of the ‘modernization’ of the law in Muslim countries has recently been subjected to critical evaluation. Central to this revision is the question why sharia was shortchanged in the process, or bypassed (Asad 1993, 230). Mustafa (1971) was the first to address professionally why the British and Sudanese judges in the Sudan were led by the interesting, value-free provision of ‘justice, equity and good conscience’ of the Sudan Civil Ordinance, 1900, to take for granted that the law of the Sudan was English law. In being so misinterpreted, Mustafa argues, the provision lost its meaning ‘and was no more than a second name for English Law’ (1971, 101). Beside saving the administration a lot of embarrassment in not opting for Islamic law in a Muslim country, Mustafa argues, the provision, which no Muslim trusting the justice of his own laws would have objected to, had never been interpreted to mean Islamic law as well (1971, 56–57). Restoring sharia as the law of the land finds its strongest support perhaps in the argument that sharia, as a legal tradition, was dismissed beforehand as incompatible with modernity. In the view of its smart defenders, Islamic law, so to speak, did not have its day at court. Sharia, a national tradition, which gives northern Sudan its diffuse but effective coherence, was given a bad hand. In driving a wedge between these different courts, the colonial administration inhibited its growth even in the restricted jurisdiction permitted to it. This national tradition was made archaic and prevented from developing within its own frame of reference. In Said’s words, the sharia texts came to inhabit a realm

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without development or power (1983, 47). And an orphaned nation was born. Collaborators Dealt a Bad Hand In connection with the focus on both colonial governmentality and hybridity, scholars have also been elaborating the concept of collaboration with colonialism which nationalists denounced and defiled. Investigating colonial collaboration is intended to denote both the fragility of colonial power maintained by a relatively few European administrators (Dirks 1992, 7) and the opportunities made available by the empire for local accommodation (Behdad 1994, 12). The usefulness of the concept to account for the fragility of the colonial state was suggested originally by Ronald Robinson (1972).11 He attributed the success of nationalism to colonial rulers who through messing up their ‘collaborative bargains’ (Robinson 1972, 134) with local elites ‘ran out of collaborators’ (1972, 138). Colonialism was thus made sustainable at a prohibitive price and had ‘to close down and leave’ (Darwin 1991, 95, 116). Collaboration, in the hybridity paradigm, on the other hand, is an original colonial condition especially for the half-made colonized elites who, for being coopted in the colonial enterprise, are described as ‘hand in glove’ with the colonial state (Cooper and Stoler 1997, 10). Ashis Nandy even proposes that collaborators may prove on close scrutiny to be part of a moral and cognitive venture against oppression (in Appadurai, 1986, 746). As a result, collaborators with colonialism, whom resistance discourse turned into a pariah, are in high demand in the emerging research in the enigma of colonialism (Said 1993a, 262). The critics of the hybrid view of colonialism, however, argue that collaboration has been shown to be less about the hegemonic character of colonialism than about the colonial contempt for the colonized (Dirks 1992, 7). This book documents a case of an aborted collaboration between Sudanese clerics and colonialism and maps the dire consequences of this failure on the career of independent Sudan. Chapter 5 will examine the feud of Taha and the clerics over who would be the spokesmen of Islam:

11 It is noteworthy that Robinson chose the Sudan as his case-study for the indigenous collaborators through whom the colonialists had extracted legitimacy for their authority (1972, 135–137).

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Taha, the resister of colonialism, or the clerics whom he stigmatized for collaborating with colonialism. Clerics though have a very strong image of themselves as resisters of colonialism, and have a record to support their case. The mere fact they administered sharia under a system run by unbelievers is viewed as a last ditch fight to preserve Islam. Chapter 5 will show how perceptions, rather than the realities, of resistance and collaboration were at issue in recycling the legacy of colonialism. In isolating themselves from qadis, colonialists are guilty of letting down a class of native elites they had brought into the world. The modern cleric class in the Sudan came largely out of the cloak of colonialism. Unlike other Muslim countries where a class of ulema was politically entrenched before the coming of colonialism, Sudan had to wait for colonialism to groom this class in colonial terms. The previous Mahdist state had played havoc with its clerics, and those who survived it were anxious to go back to a quiet life of scholarship after the active radicalism of the late nineteenth century. With the spectre of Mahdism, believed to be the work of fanatic ‘tribal fekis (religious authorities)’ looming still large, the government was also planning to create a Muslim leadership aligned to the interests of its administration. The government was therefore led to encourage what it described as the true, orthodox Islam (Warburg 1971; Daniel 1966; Ibrahim 1989). Two government institutions owed their existence to this policy of encouraging orthodox Islam: the Board of Ulema (religious scholars) and the Sharia Division of the Sudanese judiciary. Naturally, the Board, established in 1904, consisted largely of former Mahdists who were both disappointed by the degeneration of the Mahdist state before the conquest and intimidated by the powerful forces that had crushed it.12 However, the potential of this Board for influence and leadership was either missed or abused by the government. The career of the Board attests to what Heesterman has said about colonial administrations being unable to work with networks of influence and their leaders. Instead, colonialists preferred to deal with categories and legal abstractions. In the colonial records, the members of the Board appear either mingling with the people of the Intelligence Department of the government (Warburg 1970, 61–62), or rubber-stamping severe measures taken against some 12

Sharia is perhaps one of the few traditions that legislated to a condition in which Muslims are overpowered by unbelievers. Muslims, according to their sacred texts, can live with political disenfranchisement as long as they secure qadis and imams of prayers (Ibn ʿAbin 1966, 369).

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of their former Mahdist comrades (1970, 100, 107). No wonder the Board is viewed in nationalist discourse as an institution for shameless collaboration with the colonialists. The British, on the other hand, dumped the Board when signs of a more successful alliance with the ‘notorious’ fanatic fekis had appeared on the horizon before and after the First World War. C.A. Willis, the Director of Intelligence and the architect of these alliances, described the Board in 1921 as continuing to play ‘the Vicars of Bray.’ He went on to say that its ulema had not very much influence ‘but then I imagine they were not meant to have’ (1970, 96). In Chapter 2, I will discuss how the qadis were also ‘Vicar Brayed’ by the colonizers in their drive to implement Indirect Rule in the late 1920s, in favor of an alliance with ‘tribal chiefs’ and their fekis. In implementing Indirect Rule, the government gave chiefs’ courts concurrent jurisdiction with sharia courts over personal status matters involving Muslims. The ultimate aim of the policy was to eliminate sharia courts from rural Sudan. Although affronted by entrusting sharia to unauthorized personnel, the qadis came up with a range of views and positions, described as moderate and disarming by British administrators, to continue to do business with chiefs’ courts in their sharia jurisdiction. But this bid for collaboration on the qadis’ part was inundated by an empty rhetoric of hierarchy and intimidation. And by the time the government considered the qadi’s views, the damage had already occurred. In failing to sustain a meaningful dialogue with the influence networks and their leaders, I will argue, the colonial government allowed these networks to go into history with the stigma of ‘collaboration’ defined as a heresy in nationalist discourses. The qadi class still bears the brunt of this unsavory image as noted earlier. Mansour Khalid, a civil lawyer by training, disapproved once the qadis’ agitation for an Islamic constitution after the 1964 Revolution in the Sudan. He did not see the relevance of their law assigned to the pleasures and woes of the bedroom, to the making of the constitution of the country (1972, 66). Later he took his harsh statement back by emphasizing the remarkable national contribution of a number of qadis (1986, 117–118). Furthermore, as late as 1977 a Sudanese qadi sued Taha for libel because the reformer described the qadi class as stooges of colonialism. The drama of this court room and its political implications will be told in Chapter 5. Taha’s pet defence was to reiterate what Khalid, a minister in Nimerie’s regime (1969–1985) at the time, had said about qadis without being sued (RP [Republican Brothers Publications], Port Sudan 1975: Vol. 1,

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26–27). The argument can be made, however, that members of the qadi class were not allowed to collaborate effectively. Towards a Musical Approach to Religion Unarguably, the modernization theory that dominated the analysis of culture and politics in former colonies ill-prepared us to come to grips with the revival of religion in governance. In an earnest plea for a sympathetic understanding of the prevailing Islamic revivalism, John L. Esposito cautions against a ‘secular bias’ apparently shaping our analysis of Islam and religion in general. The study of religion, any religion, was turned by this secular bias into a kind of an obituary—a record of a dying thing (Esposito 1993). Furthermore, secularists view religious socialization, a crucial aspect of a development of a person, as a ‘bias to be set aside in law and politics, rather than an instance of inescapable socialization’ (Caudill 1997, 149). Liberal sociology grants religious experience only to the ‘marginal and the bizarre’ (Spicard 1993, 125) but not to firm religious political activists. The latter have always been characterized as confused, irrational, and discomforted by modernity. As late as 1993, a brochure announcing residential fellowships for the study of religious experiences lamented the fact that despite the rising popular interest in a variety of religious beliefs, religion is often treated with indifference, contempt, or outright hostility both in public sphere and in academe. This evaluation of religion, according to the brochure, made many intellectuals at least partially tone-deaf to the voice of religious people. The result, as seen by the brochure, is that ‘not only has it became less clear what religious study is; it has become less clear what religion itself is.’13 The fallacy of this secular bias in connection with the study of Islam in Africa is pointedly brought out in Louis Brenner’s introduction to his anthology titled Muslim Identity and Social Change in Sub-Saharan Africa (1993). In his introduction, Brenner polemicizes with a previous anthology on Islamic Africa edited by Ian B. Lewis in 1966, the heyday of the modernization imperative. In Lewis’s introduction to the anthology, he predicted that Muslim solidarity and political expression were

13 From a brochure inviting applications for residential fellowships focusing on ‘Varieties of Religious Experiences’ at the Rutgers Center for Historical Analysis for the years 1995–1997.

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‘likely to be tempered by the increasing secularization of modern Muslim states and the general recognition that secular aims and politics are more important in the modern world than common religious interest’ (in Brenner 1993, 1). Lewis’s book therefore saw it as at least ‘questionable whether Islam can be expected in the future to exercise the profound political effect it has had in earlier periods of African history’ (1993, 1). The prediction that Islam was going to recede from Muslims’ public life is obviously untenable. An observer of Africa in the 1990s, or even earlier, according to Brenner, would unlikely endorse Lewis’s statements as they stand. In fact Brenner’s anthology can be seen as a ‘subversive reading’ of Lewis’s one in that it addresses the issue of the new strategies of self-preservation and political contestations adopted by African Muslims to meet the many challenges posed by colonization and secularization (1993, 1–2). Even with the increasing eruption of religion into politics, students of Islamic revival adopt a top-down approach focusing on the role of the elites in co-opting religion to authorize their rule and control of the state. This book subscribes to an emerging trend which studies average Muslims religious politics as relevant to an analysis of Islamic renewal (Malley 1996; Bugart 1997; Bernal, 1994; Asad 1993; Roy 1994) whereas the focus previously has been on elites’ ambitions and frustrations. In opening analysis to the power of symbols and their contestation, this emergent literature on Islamism recognizes the investment of common Muslims in these symbols. Scholars have been bringing this ignored dimension of politics to the analysis of Islamic ‘fundamentalism.’ To bestow this faculty on Muslims, Dale F. Eickelman and James Piscatori found Kyosti Pekonen’s definition of politics as ‘a struggle about people’s imagination’ corrective to some conventional thinking in the field of Islamic fundamentalism. Rather than centering politics on power relations and ‘interests’ alone, the definition allows politics to be ‘conceived as competition and struggle over the meanings of symbols’ (1996, 9). Also, Michael Kevane and Leslie Gray recalled Abner Cohen’s old notion (1969) that symbols governing social behaviors such as gender, race, and class, informed largely by Islam in our case, are neither given nor stand outside the arena in which the struggle for power takes place. They are too enmeshed in the act to be singularly exploited by crafty elite (1995, 271–272). Average Muslims have much use for them to make their exploitation by powerful rulers a matter of secondary significance despite its relevance to an analysis of Islamic renewal.

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Islamizing Modernity The conflict between the Sharia and Civil divisions of the Judiciary could have been told in the more than familiar terms of the drama of tradition and modernity believed to have had taken the colonial world in its grip. Qadis were among the first categories identified as antithetical to modernity. It is Weber who described ‘kadi [qadi]-justice’ as irrational and hence inhospitable to capitalism, that is, modernity (1968 Vol. 2, 823). Students of change and Islamization in the Sudan, even after the Iranian Revolution in 1978, were then still working under the conviction that modernization overshadowed clerics ‘who, at first sight at least, appear simply to be doing traditional things in traditional ways’ (Keddie 1972, 5). We have already seen Khalid, a modernist of civil law training, astounded to find the qadis in the midst of a lobby agitating for an Islamic constitution in 1964. To put them in their place as a cultural anachronism, he reminded them that they were judges whose jurisdiction was confined to ‘matrimony’ ankiḥ a, (a word evocative of mere sexual intercourse in popular usage) and inheritance (1972, 66). Khalid’s failure to make the connection between the qadis’ judicial predicament and their political investment in Isalmization, seems to be characteristic of scholarship on law and politics in the Sudan. In this book I heed Cooper and Stoler (1997) and Mamdani (1996) who suggest that we go beyond the bipolarity of tradition and modernity (Cooper and Stoler 1997, 15), and its progressive reformulations, such as the Marxian capitalism as opposed to pre-capitalism, etc. (Mamdani 1996, 9). Although tradition and modernization have been the keywords in colonial and development studies, argue Cooper and Stoler, the production and investment in them went largely unexamined while colonialism was reduced to a problematic ‘legacy’ of racialism and hierarchy (Cooper and Stoler 1997, 15). Scott argues that power ‘gets elided from the comprehension of modernity’ (1995, 201). According to Mamdani, this element of power is concealed by orthodox Marxism and dependency theory’s binary oppositions of capitalism and precapitalism, and development and underdevelopment, respectively. He states, ‘Of the bipolarity, the lead term—“modern,” “industrial,” “capitalist,” or “development”—was accorded both analytical value and universal status. The other was residual. . . . Whereas the lead term had analytical content, the residual term lacked both an original history and an authentic future’ (1996, 9). And he concludes by maintaining that the social science studying these polarities ‘involves a double manoeuvre’

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for while mythologizing the ‘lead’ experience it caricatures the other experience as residual (1996, 9–10). Colonial lawmakers did not consider sharia a tradition that could be utilized in the reception of their modern civil and criminal laws. Reception of European laws in former colonies was, and still is, celebrated as the adoption of the law on the right side of modernity. It is to Weber, as we noted earlier, that we owe the opposition of modernity and tradition in subsequent Islamic legal culture (Roy 1994, 7–8). Sharia, for Weber, characterizes that form of judicial legitimacy of patrimonial states where authority is legitimized by tradition. Qadis’ decisions, it is believed, are given without any reference to a settled group of norms or rules. Traditional law, according to Weber, was unlikely to develop as an internally consistent body of rules ‘because there was neither a separate commercial class nor a professional bar whose interests would be served by the creation of a law that could be administered by members of their own class’ (Rosen 1989, 59–60). Although this antiquation of sharia is still prevalent (Mayer 1991), it has come under damaging scrutiny lately.14 Scholars have been focusing rather on the element of power underlying the traditionalization of sharia among other critical considerations. Lawrence Rosen (1989) is a lucid revelation of the knowledge/power element behind the Weberian modernity that is responsible for arguing the incompatibility of Islamic

14 Bryan S. Turner (1974) challenges the developmental model of law posited by Weber. This model allows for an evolutionary distinction on the scale of rationality and modernity between arbitrary, ad hoc law-making such as the qadi-justice, and legal judgements derived logically from general laws (1974, 109). What prevented sharia from becoming a systematic law with an autonomous legal class, according to Weber, is serving the political goals of kings ‘rather than the abstract principles of law’ (1974, 111). A corollary of Weber’s theory is that capitalism, as a rationalist enterprise, did not emerge in these unfavorable legal conditions of the patrimonial state (1974, 110). In these societies, it is unlikely, according to Weber, that law can ever become a ‘vehicle for the limitation of powers of the state’ to ensure stability for capitalism (1974, 60). Scholars have been poking holes in Weber’s thesis of modernity and the law (Rodinson 1978; Turner 1974). Maxime Rodinson describes Weber’s argument about rationality and capitalism as going in circles. It is not clear, according to Rodinson, whether Europe was rational before the rise of capitalism, or it became rational as a result of being capitalistic (1978, 116–117). Turner, on the other hand, has argued persuasively against Weber’s determination that modernism can hardly go hand in hand with sharia. According to him, even Weber admitted that capitalism had flourished in an England in which the court justice of the peace resembled qadi-justice. It is Weber, he continues to say, who concluded that ‘England achieved capitalistic supremacy among the nations not because but rather in spite of its judicial system’ (1974, 119).

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law and modernity. In his book, Rosen highlights how nineteenthcentury Europe shifted the image of the Muslim qadi from a ‘benign oracle of community of believers’ a la Old Testament sage to a judicial figure whose occasionally laudable and astute decisions were arbitrary for having no rules of law to guide him (1989, 58). This shift of image was predicated on a basic shift in Western jurisprudence from a concern with natural law and folk justice of the qadis’ kind, to an emphasis on procedure, code, and appellate hierarchy (1989, 58–59). Many scholars have concluded that Islamism is about Islamizing modernity rather. From a grassroots perspective, Islamic renewal, according to Victoria Bernal, is much more than a reaction; ‘it embraces positive identity, and for many Muslims . . . a vision of prosperity and civilization more compatible with their own identities and culture than the West can offer.’ The rise of Islamic fundamentalism, she argues, is not ‘a reaction against change, but change itself ’ (1994, 42). The villagers studied by Bernal engage Islam in the unravelling realities of development and new-found wealth of their emigrant fathers and sons. She specifically challenges the assumption that to be modern is to be secular (1994, 61). In revealing the constructedness of tradition and modernity, Chapter 6, which will discuss the ideas of al-Turabi, the leader of Islamic revival, will describe his theology as a quest to make modernity atone to God. Mindful of this challenge to the polarity of tradition and modernity, the book interrogates the duality of the Judiciary with its ‘modern’ Civil Division and its ‘traditional’ Sharia Division to bring the power and knowledge that brought it to life. The question I pose is whether the British and Sudanese legal professionals ever tested the compatibility of sharia and modernity by considering the adoption of some sharia law in delivering justice to Sudanese Muslims. Had they set aside their preconceived ideas about sharia as premodern and engaged it in legislating for Sudanese Muslims, I will argue, they might have not needed to dichotomize the Judiciary. In the few cases they actually checked out the progressiveness of sharia they were actually surprised. The Explanation of our Discontent In identifying the question of civil v. sharia as the central cause of the political turmoil and civil war in the Sudan, the book starkly exposes the issue at the core of the country’s problems: who are we as Sudanese,

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and what does it mean to be a Sudanese in the postindependence era? Questions of personal and national identity are thus tangled with questions of competing legal institutions and systems. Renewal of Islam, perceived largely as the implementation of sharia, has been the way the Muslim majority in the country wanted to redefine post-independence Sudan. Call it bigotry, yet this desire to Islamize the country is not totally deceitful. Muslim Sudanese were aggrieved by the inherited colonial law for permitting ḥ arām (religiously forbidden) practices. Legalized prostitution, for example, became a topical issue in the mid-1960s as we will discuss in Chapter 3. Spiritually terrorized in the 1970s by an economy of greed leading to a host of new crimes and a rise in crime rates, these Muslims were also aggrieved by the delay in the administration of justice attributed to colonial court structure, philosophy of punishment, and procedures believed to be at variance with swift justice in Islam. These grievances reopened the legitimacy of the nation-state in the Sudan. In calling for a break up with the colonial Judiciary, politicians drew on both a popular disillusionment of the due process and a popular notion of justice based on Islam (Zein 1989, 203). The call was calculated to embarrass the intractable Civil Division, whose judges had resisted changing the status quo, by making it look as if it were standing by the colonial heritage in the public eye (1989, 203).15 My book picks up from Peter Kok (1991), a southern Sudanese legal scholar, who argues that the controversy about the nature and sources of the law in the Sudan is integral to the basic conflict over the identity of the country in the course of its decolonization. He points out that legal reforms resolvable by substantially or technically enhancing statutes, were transformed into a legal ‘revolution’ that is more akin to the identity and sources of the law. The complaints about the discrepancy between the colonial law and Muslim morals in the administration of justice in northern Sudan ripened into a reform to determine the nature of the state and the identity of the nation-to-be (Kok 1991, 235). In Nimerie’s era alone this decolonization, and consequently state 15 Nimerie dismissed an attack of the BBC on his Islamization by saying that the news service was coming to the defense of the British legacy in the Sudan. Replacing English Law, the law of the Sudan for 80 years, by sharia, he stated, brought the wrath of the British mouthpiece. He continued to say that English Law ran counter to our mores for permitting adultery, alcohol drinking, and gambling. Furthermore, its statutes, he contended, were too mellow on theft committed in broad daylight (Khalid 1986, 174).

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legitimacy, had already taken socialist (1969–1971), Arab nationalist (1971–1971), and Western modernist (1972–1983) forms before it switched finally to Islamic law in 1983. My work departs from the prevailing explanations given to the renewal of Islam in the Sudan, and in Muslim countries at large, identified by Ibrahim M. Zein (1989): the historical; the functional/ instrumentalist; and the psycho-biographical (1989, 57). The historical, according to Zein, requires an analysis of the Islamic past of a country stressing socio-religious structures suggesting a kind of historical overdeterminism. The functional/instrumental, on the other hand, is overwhelmingly espoused by Sudanese activists who see Islamization as an effective instrument selected by authoritarian rulers to suppress political opposition. Denial of sincerity and good intentions, according to Zein, are integral to parts of this argument. This explanation is also polemical in nature and is intended to discredit the regime in power. Finally, the psycho-biographical, which is provided to explain President Nimerie’s sudden turn to Islam in 1983, takes Nimerie’s experiment as something that personifies him in history. The experiment is reconstructed for a sensible biography of the born-again Nimerie after his bloody break-up with the communists in 1971. Often, the psycho-social explanation shades into the instrumental explanation (Zein 1989, 57–60). These three types of explanations do not use the politics of the Judiciary to better understand Islamization. The historical explanation bases itself on an incomplete history because it ignores the history of law in the country which has suffered from neglect and trivialization (Zein 1989, 162). Furthermore, in implying a ‘return of Islam’ state of culture, the historical argument suggests, ‘first, that Islam somehow had cleared out and, second, that what we are witnessing today . . . is essentially a religious phenomenon’ (Malley 1996, 231). Without saying that religion is not important and faith is mere pretence, Robert Malley argues, what needs to be studied are the ‘specific social locations, class frustrations and class strategies, cultural anxieties, ideological pulls, and global power relations’ (1996, 233). The functional and the psycho-biographical explanations overemphasize intentions and personality to the exclusion of other simple explanations. Aware of the limitations of these explanations, which viewed tradition as a historical imperative, or a political tool, to delegitimize opposition, Zein adopts a discourse analysis approach in which tradition is debated and thus made relevant. Heeding Anthony Giddens’s belated advice, Zein seeks in his discourse analysis to account for Islamic

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revival by mapping the ‘world of interrogation and dialogue’ (Giddens 1994, 85) Islamists engage to make their case for the rulership of God. Although much of the discourses he carefully assembled and studied revolved around legal issues, Zein is not particularly curious about the conflict of the Sharia and Civil divisions of the Judiciary in which these legal discourses assumed their significance and identity. Previous scholarship on Islamic renewal, or the history of the Judiciary, failed to make a meaningful connection between judiciary politics and Islamic revival. Students of the Islamization of the state in the Sudan did not find the dualism of the Judiciary illuminating in interpreting the vigorous enterprise of Islamic renewal in Sudan. Salman M. Salman (1977), in a lucid outline of the history of this dualism, views it largely as a professional disease rather than a site of epistemological, political, and professional contestation. Furthermore, Carolyn FluehrLobban, in her pioneering work paying homage to the progressive legal contribution of qadis of the Sharia Division of the Judiciary to family law in the country, is not particularly worried about the politics of the Judiciary. In instances where she comes close to the workings of this politics, she apparently endorses dualism as a framework in which qadis found leeway to showcase their humanity and resourcefulness (1987, 240–247). Rather than locating this Manichaeanism in the colonial power relations, some scholars ‘naturalize’ it by attributing it to an essence of Sudanese Islam. Muhammad Mahmoud, for example, points to the nature of Sudanese Islam ‘which is characterized by its tolerance and disregard for sharia except in the areas of personal status law and inheritance’ (1996, 179). Recently, scholars, who investigated Nimerie’s Islamization measures of 1983 (Khalid 1986; Zein 1989), have come to appreciate the relevance of judiciary politics to the Islamization of the state. These emerging studies could hardly have missed the connection since the measures themselves were inaugurated after the judges’ strike of 1983 that culminated a long-drawn conflict between the President and the Judiciary. Zein and Khalid usefully show that Nimerie not only tampered with the structure of the Judiciary, but also transformed its substantive laws and their origins. Zein has even argued that the measures were designed ‘less for their Islamic content than for their anti-judiciary intent’ (1989, 186). Khalid, a lawyer trained in civil law who never sympathized with the professional plight of the Sharia Division of the Judiciary (1972, 66), understandably does not go beyond noting the causal and transformative effect of the strike stopping short of shedding light on the

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politics of the Judiciary. Instead of demystifying this politics, Khalid debunks the measures as instruments to cow the impending opposition to Nimerie’s rule that could have been sparked by the strike (1986, 41). Unlike Khalid, Zein sees more to the measures than instrumentality. He tentatively suggested that the measures could be interpreted as one more episode of the saga of the decolonization of the Judiciary to base the legitimacy of the state on the religion of the northern Sudanese: Islam (1989, 306, 309). The Islamic theory of justice began to figure in the analysis of Islamic renewal. Corporal punishment, a sharia punishment used excessively as an Islamic disciplining during Nimerie’s Islamic experiment, is interpreted as laying claim to an indigenous regime of punishment. Whereas Khalid dismissed flogging as pathological, cruel, and scandalous (1986, 53–54, 101, 300), Zein and Peter Woodward have pointed out the political import of flogging as a way of claiming political legitimacy on the grounds of social discipline. Zein pointed out the ambivalence of a riverain Sudanese respecting punishment by whipping—deeply ashamed by the flogging but appearing not to be deterred by it (1989, 260–261). Likewise, Woodward argues, ‘Finally by not only introducing sharia but enforcing punishments on a scale beyond that of any other country using the code, notably Saudi Arabia and Pakistan, Nimerie was seizing the only basis for repression in northern Sudan which could claim any shred of legitimacy’ (1986, 5). If pursued, this line of investigation will eventually illuminate instrumentality itself by revealing the cultural traditions which underpin it. Chapter 4 will look in more depth at the decolonization of the law along the lines suggested by Zein and Woodward. Soulless Societies: The Religiousness that Comes Before Religion In being somewhat skeptical about the instrumental and historical explanations of Islamic revival in the Sudan, I seek to approach this religious movement with what Weber described as ‘religious musicality.’ Weber described himself as religiously unmusical because the religious experiences he studied with great empathy were nonetheless experiences for which he himself lacked the capacity. In contrast, he described his friend, Simmel, as endowed with this musical attitude toward religion as will become apparent shortly (Simmel 1997, vii). Under this broad approach, I explored and adopted a number of concepts to assist me

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think through this versatile and tumultuous period of Islamizing the state in the Sudan. To avoid seeing this revival as an automatic, unqualified return of Islam, I sought to examine where exactly colonialism and postcolonial regimes hurt Muslims for them to express their anguish ‘in an Islamic vocabulary’ (Burgat 1997, 39). I ask where does the religious in Muslim countries, in Malley’s words, resonates ‘particularly well with the geopolitical’ (1996, 238)? I found ‘moral injury,’ a concept advanced by Davidson (1992) to describe the moral violation of colonialism to the worth of the colonized, useful.16 I also adopted ‘religiosity’ and ‘religiousness,’ used variously to give credit to average religionists as in possession of a cultural universe not amenable to exploitation by elite politics. The two concepts restore the utopian righteous community of religion from the cold calculations of economy and civil liberties advocated by Marxists and liberals respectively (Lears 1985, 585). The concepts are not only useful in challenging the instrumentalist explanation of Islamic renewal, but also engage this renewal as a legitimate intellectual investment in the utopian promise of religion envisioned by Fredric Jameson (1985, 590). Moral Injury In the case of Muslims, colonial moral injury can be specifically defined as the affront colonialism constituted to the way Muslim people had lived and should live (Davidson 1992, 297). In giving decolonization a spiritual and intellectual content, the concept accounts more accurately for the renewal of Islam as a moral order on which Muslims depend for their well-being. Muslims never relinquished the commands of this moral universe during colonialism whenever they had to decide for themselves. Islam was therefore never submerged to warrant talking about its return. Rather it reasserted itself as the source of moral legitimacy for a Muslim polity. However, this is not the same as claiming for it any inherent compulsion to build a full-fledged Islamic state. We will see in Chapters 4 and 5 how Muslims, as parents and litigants, had to cite Islam as a moral reference to articulate issues of governance in which the postcolony held blindly to colonial laws and procedures believed 16 Colin Legum maintains that the colonized still believes that the colonizers have yet to recognize and atone for the ‘injury of colonialism’ (1999, 3).

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to be licentious or cumbersome. The distinction Davidson makes between elites and common Muslims in impacting and wrestling with this injury, is an eye-opener. Unlike common people, elites, according to Davidson, have accepted this lasting hurt as an unavoidable price of progress (1992, 50, 298). This contrast opened the door for me to read more critically the reluctance of the modernists to reference Islam in the administration of the postcolony. Colonial moral injury etched itself deep in the hearts of Sudanese Muslims the day they had lost control over their life to a colonial power of unbelievers. After the British conquest in 1898 and the downfall of the Mahdist state, Ahmad Abu Saʿad, a passionate and prolific singer of praises of the Mahdi of the Sudan, sang a dirge lamenting the passing of the good, pious old days. In a fast-moving, two-line stanza poetic form, he tantalizingly scans the sacred landscapes of the Mahdist revolution and state: the rituals; the proclamations; the circles of learning; the assembly for the Friday prayer; the parade of the warriors of God; the unfurling and flurrying of the proud flags; the reading of the vigilant, saintly Rātib (selections of Qur’anic verses) of the Mahdi. His intimacy with the corridors of piety and power of the Mahdist theocracy shines through his song down to the kissing of the courageous hands of the venerable leaders of the state. In abject disgust of the heathen days to come under the British, he spells doom and gloom: Our Islam is muddied and our religion is violated (Hasan 1974, 176). On the moral level, he associates the victory of the British with the legalization of drinking and debauchery: The māndayra overpowered us and sucked the fun out of life. Māndayra is the Turkish for ‘flag.’ Bars used to hoist flags to advertise that they were open for business. Idiomatically, ‘hoisting a māndayra’ is said in revulsion of all innovative, licentious behavior departing from the moral code of Muslims (1974, 173). The colonial state wasted no time to hoist its māndayra. Alcohol, gambling, prostitution, and apostasy from Islam were legalized. We will see in this book how various political constituencies in the former colony addressed this moral pain focusing on the discrepancy between the moral law of Muslims and the positive law of the colonial and postcolonial state. Reforming the code to adjust to Islamic morals has been rocking the country into untold social and political turmoil. We will focus on how this moral injury led progressively after independence to a state of ‘virtuocracy’ defined by Robert H. Bork as ‘a bureaucratization of personal morality’ (The New York Times 17 October 1997).

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The Soulless Society The utopian potential of religion has been increasingly revisited in the context of the bankruptcy of the nationalist and radical projects that had promised to make decolonization a meaningful experience. In this context, scholars have turned Marx’s position on religion on its head. It is Foucault who may be the first to make this inversion of Marx in connection with Islam. In an interview in 1979 about the Islamic Revolution in Iran, he pointed out the irritations it provoked in the West. As a revolution, the Iranian Revolution, he argues, failed to show the dynamics recognizable as revolutionary by the West. In being carried out by almost the whole nation, this revolution failed to show the class and internal contradictions and confrontations in society in an immediate transparent way (1988, 212–214). Although this masking of contradiction may suggest that Islam might have been used as an ideology, it was not, according to Foucault. It is religion as an ideology, a false consciousness obscuring the misery and alienation in real world that Marx condemned as the ‘opium of the people’ (Marx 1977, 64). Alternatively, Foucault saw religion as a ‘recommended liturgy’ (1988, 214) by which the Iranians desired to ‘renew their entire existence by going back to a spiritual experience’ they could find within their religion. Yet, he found the human condition on which Marx had predicated his (in)famous repudiation of religion, as the opium of the people, usable. He states, ‘People always quote Marx and the opium of the people. The sentence that immediately preceded that statement and which is never quoted says that religion is the spirit of a world without spirit. Let’s say, then, that Islam, in that year of 1978 [the year of the Iranian Revolution], was not the opium of the people precisely because it was the spirit of a world without a spirit’ (1988, 218).17 Revisionists have been increasingly focusing on the anatomy of soulless societies to better understand the role of religion in social change. Said argues that the dire realities of misrule by the elites and Western haughtiness are secular realities ‘in which not just “Islam” is involved’ (1993, 65). Islamism, in the view of the revisionists, is a plea for more modernity rather than a flight from, or a reaction against, it.18 17 Marx states, ‘Religious suffering is at the same time an expression of real suffering and a protest against real suffering. Religion is the sigh of the oppressed creature, the feeling of a heartless world, and the soul of soulless circumstances’ (1977, 64). 18 Even when Islamism is described as a ‘shock of modernity,’ as in the case of the Maitatsine movement in northern Nigeria in the 1980s, revisionist scholars give it credit for the oppositional energies it generated in the victims of a capitalist, oil-rich

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Islamizing may connote deeper philosophical notions. On a more mundane level, argues Said, it is the desire of the majority of Muslims to access amenities of modernity denied to them by selfish elites. Cairo, a city of almost 15 million people, he writes, has the grid of basic service unchanged from the time when Cairo had a population of 4 million (1993b, 63). Accounting for the fundamentalist land-slide victory in Algeria, The New York Times chided the westernized elites who ‘mouthed slogans about egalitarianism and socialism but all the while inscribed their own privileges.’ Most important, the paper continued to say: [T]he Algerian revolution [against the French until Algeria got her independence in 1962] transformed Algeria’s Arabs into an upper class and an underclass, in a country where there had been only poor Arabs before because the French had monopolized the country’s riches . . . We are looking at a society where one million people at most are living within what we call civilized norms, which means that they have fairly decent salaries, they have accounts in a bank and they take vacations once in a while. The rest of the population are at or below subsistence level. (The New York Times 28 December 1991)

Appropriating the amenities of modernity by the ruling and professional elites as if the folk can live without them, is rife. I myself protested the callousness of the Sudanese ruling elites in a daily column I published in 1988–1989. I objected to the plan to use computers to control the distribution of rationed gas, a largely elite commodity, when no feat of inventiveness was deployed to rescue people who had been stranded in almost non-existent public transportation. I noted in my piece how technology had been narrowed to serve the few and ignore the many. Also, I protested bartering sesame oil, a crucial foreign exchange commodity, for cars government bureaucrats rarely use for official business. To avoid the humiliation of public transportation, elites, I wrote in 1988, were using their influence in the bureaucracy to use the meager foreign exchange to subsidize buying private cars for professionals by waiving taxes and easing foreign exchange restrictions. Unions of bank employees were buying their own buses to ferry their members to destinations in the sprawling city (al-Khartoum 19 October 1988).

Nigeria ʻawash with money’ and scandalous corruption (Watts 1992, 27). The movement, in Michael Watts’ view, is less about fanatics and heretics than about a soulless society directly ‘experienced and reworked through the symbolic matrix of Islam’ (1992, 49). The veil, condemned as a retreat to an old-fashion patriarchal and religious propriety, is seen by an Egyptian as a ‘playful form of self-expression in a dreary time’ (Said 1993b, 63).

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Malley’s study of Islamic revival in Algeria is emblematic of the revisionists’ emphasis on studying religion as the culture and praxis of soulless societies. Generally speaking, Malley argues that Islamist movements are born of the meeting between social restlessness and tailored religious scripts. He argues that the 1960s oppressive Third Worldism of development, modernization, and socialism engendered Islamic renewal in two related ways (1996, 236). First, the failed social fantasies of this Third Worldism brought misery to the people who interpreted the failure as ‘symptoms of a moral failing’ and less as an indicator of misguided management. Although the misery this failure brought is ‘experienced most immediately at the socioeconomic level’, he maintains, ‘it was met by calls for remedy on the moral plane. From there to religious salvation, ‘Malley says,’ was but a small step’ (1996, 236). Second, in quelling opposition, the Third World state left men with religion—the one thing modernist elites cannot monopolize. Muslims’ devotion, he continues to say, doubled as ‘piety and as a political instrument’ (1996, 240). Malley concentrates his critical energy on the historical explanation viewing Islamism as a simple ‘return of Islam’ (O’Fahey 1996, 262) as noted earlier.19 In this perspective, Islam is assumed to be dormant waiting to resurface. Dubbing Islamic revival as a ‘return of Islam,’ in Malley’s view, assumes that the religion has an inherent appeal instead of becoming, in the circumstances of the failed utopia of Third Worldism, the ‘most effective vehicle for the expression of social, economic, and political frustration’ (Malley 1996, 5). Malley faults the ‘return of Islam’ thesis for delegitimizing Third Worldism as an unauthentic Muslim experience. Although he concurs with the historical explanation that Islamism oozed out of the holes of soulless societies, Malley believes that these failed Third Worldism experiments were legitimate realities and not aberrations waiting to be swept by the inevitable return of Islam (1996, 165). The Orientalist/ historical argument of latent Islam waiting to resurface in Muslim lives, he states, dismisses these Third World truths as alien from the outset or ill-adapted (1996, 165). What rendered Third Worldism progressively irrelevant, he argues, is a legitimacy crisis for becoming increasingly dysfunctional for domestic and international reasons. In its diminish-

19 A more dramatic version of this mode of interpretation argues that Islam returns because of its ashwāq tarīkhiyya (historical passions) to unite with the believers from whom it has been unjustly alienated by colonialism (al-Mahdi 1987, 377).

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ing connection to the way the world is being grasped and understood, Third Worldism, Malley argues, no longer can provide ‘states and political actors with the needed rationales of social regulation’ (1996, 166). In Chapter 4 and 5 we will see how both nationalism and socialism espoused by presidents al-Azhari and Nimerie, respectively, fell short of providing them with political legitimacy. Religiousness Two emerging concepts contributed significantly to my theoretical approach in which I became interested in how colonial modernity violated Muslim’s sense of propriety and decency leading to a situation of the Islamization of the state. The first concept is ‘religiousness,’ developed by Simmel. The second is ‘religiosity’ current in postcolonial discourse. To map colonial moral violations, I found these two concepts illuminating in bringing in an understudied colonial hurt right in the soul of average Muslim Sudanese and their governance. I am only discriminating between the two concepts, which may be taken as identical, in fairness to my authorities. We have noted earlier how Weber credited Simmel, as a scholar of religious experience, for being endowed with musicality. Simmel’s musicality, according to Weber, resides in his distinction between ‘religiousness’ or ‘piety,’ defined as the ‘sensitivity to or capacity for religion’ [emphasis in the original], and religion which appears in substantial forms such as institutions and laws. Simmel was interested in religiousness as the ‘spiritual quality’ or ‘attitude of the soul’ which precedes the forms of religion (Simmel 1997, vii). Religiousness, according to him, exists in fragments in the midst of human interactions. Many human relations ‘harbor a religious element’ such as the devotion of child to his parents (1997, 103–104). Religiousness may, or may not, be projected in legal and state or civil forms Simmel identified as religion. In all cases ‘religion does not create religiousness but religiousness creates religion.’ In extreme cases, Simmel argues, religiousness may heighten in intensity and specifity and appear as religion—‘an independent sector of life’ with boundaries of its own (1997, 102). In his discovery of religiousness before it becomes religion (1997, 103), Simmel developed his musical ‘ear’ (1997, vii) for religion. In Islamic renewal terms, our examination of the discourse on prostitution in Chapter 4 will reveal the religious potential of the politics of morality. The chapter presents a clear-cut case supportive of Simmel’s argument that religiousness, an attitude of the

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soul, can be projected in legal and state forms he identified as ‘religion’ (1997, 103–04). The Islamization of the state discussed in Chapter 4 did not occur because Islam had been there waiting in earnest to colonize the state as claimed by those adhering to a historical explanation of Islamism. Rather, it is religiousness, as represented by the campaigns to remove red-light districts from family neighborhoods, which created religion as a state ideology. One might wonder if the birth of the AntiProstitution Act in 1968, as a religious law, was necessary. Why should it take religion, the Islamization of the state, to bring home the civility message of the act? Civil laws all over the world have addressed this moral issue in a variety of acts without promising anything. For taking apriori the colonial separation of religion and state, some writers see the recourse of politicians to religion as a cover up of their lack of legitimacy. Religion, not patriotism, Lawrence Fraser says in connection with the current Islamic government in the Sudan, is ‘the last refuge of the scoundrel’ (1996, 12). Besides arbitrarily discounting religion from the workings of legitimacy, Fraser seems to not have considered that a political scoundrel is versatile when it comes to the survival of his rule. A contemporary of Nimerie’s 1983 Islamic laws suggested that Nimerie’s recourse to Islam was a means of ‘insulating himself from more conventional and more onerous means of survival’ (Africa Confidential, October 19, 1983, 24, 21). He did not choose legitimacy grounded in religion until his critics had made religion the basis of their opposition of his state. His Islamism was more often than not a co-option of the capacity of Muslim Sudanese to judge their politics religiously. He was cleverly allying himself to religiousness, an attitude of the spirit in soul-searching times, and racing against an aggressive Islamic opposition which came very close to oust him. Religiosity Religiosity, a concept akin to religiousness if not another way of saying the same thing, emerged in colonial discourse to recognize the authentic cultural universe of the peasants and the underdogs from which their acts of resistance grew (Ortner 1995, 180–182). Sherry Ortner has rightly pointed to the sterility of this concept if not adequately pursued. Although recognized as a different consciousness, religiosity is never further ‘explored as a set of ideas, practices, and feelings built into the religious universe’ of the peasants (1995, 181). Religiosity can therefore be a condescending concept, a la ‘popular Islam,’ denoting a residual

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culture of average people which denies them engaging their religion as a total experience. A case in point is the instrumentalist explanation of Islamism which views rulers as ‘exploiting’ the ‘religious tendencies’ and ‘ordinary religiousness’ of people (Ibrahim 1996a, 65–67). Average Muslims are thus seen in possession of an Islam which has no capacity to engage society and politics. Also, religiosity, by the manner in which it is couched, may imply an inauthentic copy of an original text. Paul Ricoeur, for example, suggests that religion is coming to have influence again in what he called a ‘second naivete.’ Religion’s ‘first naivete,’ he argues, expired because modern people are dulled to religious symbolism. Yet the second naivete, he argues, may still nourish on ‘traces of the sacred in the world of text’ (1995, 2). Bernal (1994), Abdullahi Ibrahim (1994), and Kevane and Gray (1995) may have perhaps put Ortner’s fears of turning religiosity to a residual culture to rest by a discerning, unassuming use of the concept. In these studies, written from a village’s vantage point in the Sudan, the concept was used negatively to combat the excesses of the instrumental and historical explanations of Islamism. In these explanations, religion is treated only as an elite tradition in the struggle for power and identity. In attributing manipulative skills solely to the powerful, the instrumentalists see subordinate Muslims ‘as unreflecting consumers of dominant ideologies’ (Scribner 1991, 862).20 These studies of village Islam have variously suggested religiosity as a wholesome cultural capacity, or as an evolving concept of Islamic propriety. Religiosity, a grassroots culture, is viewed in these writings as ‘new religious sensibilities and traditions’ imparting new understandings of what it means to be a Muslim in complex opportunities for change arising from his or her shifting places in the world economy (Bernal

20 In contrast, Hale, who studied Islamism on the elite level, is less appreciative of the working of religiosity. Although she persuasively showed how religion is brought to bear on the creation of the women citizen in the 1980s in the Sudan (1997, 194, 202), Hale argues that the women folk seemed uninterested in the political aspects of religion. She attributed the indifference of these urban forgers to the little time they had for organized religion or politics (1997, 206). The period Hale wrote about was the time when our womenfolk awoke to their citizenship in Islam transcending what she describes as their historical marginality in orthodox Islam, or state Islam (1997, 206). Young women, traditionally believed not to look good in religion, flocked to listen to ʿalims in mosques and made their strong presence in Friday prayers. These urban forgers spiced their discourses denouncing greed and the blackmarket with Islamic idioms. They became too engaged in their Muslim womanhood, for better of for worse, to instruct their doctors not to examine them from the neck down (1997, 224).

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1994, 47). The notion has been predicated on two major criticisms of the Orientalist/historical and the instrumentalist approaches to Islam and politics. The first criticism is directed to the overemphasis on studying Islam as a facet of identity politics of the nation-state ridden by the problems of ‘political sectarianism, elite action and foreign intervention’ (Kevane and Gray 1995, 271). In this misguided emphasis, average Muslims are made to be ‘spectators of a divine cult’ (Ibrahim 1994, 26). This overemphasis on ‘fundamentalism’ is also faulted by Kevane and Gray for focusing on contests for state power involving elite action, political sectarianism, and foreign intervention. Less attention, they claim, has been given to the broader socio-cultural ramifications of Islamic fundamentalism, such as changing identities, consumption patterns, and values. Studies of local politics, Kevane and Gray argue, do not support the analysis of Islamism as basically the action or inaction of ‘ “passive followers” waiting for the call from “unpredictable” rulers’ (1995, 272). The second criticism reinforces the notion that average Muslims are cultural agents who are not pawned to religious texts. In identifying Islam as defining peoples’ lives, Bernal argues, Orientalists fall prey to their truism ‘that Islam is about text, rather than about people.’ In this timeless, monolithic, rigid system of Islam, average people, in their ‘text-driven society,’ are seen by Orientalists as incapable of engaging religion in a creative and strategic mode with their lives (Bernal 1994, 37). These local studies of Muslims’ existential experiences suggest religiosity as cultural resources people selectively and piously deploy in coming to grips with their complex lives and texts. Autobiographical In personal terms, this research is an occasion to confess my defeat at the hands of Islamism (or what some would prefer to call the ‘religious right’) in the long fight I have had as a union activist, publisher, playwright, academic, and journalist since my undergraduate years in the 1960s at the University of Khartoum. It is also the occasion to renew my trust, as an incurable modernist, who has no qualms owning up to his westernization and radicalism, in the possibility for a discursive and enduring secular enterprise in a Muslim polity. In the high noon of Islamism secularists like myself were described as a ‘rare bird, if not an endangered species’ (Bulliet 1995, 16). Being the ‘innocent fools’ of Jacques Lacan, ‘who trick each other into believing

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that progress does not require enormous costs’ (Caudill 1997, 132), secularists refused to recognize their downfall. Rather than turning this supposedly temporary political setback into an occasion to fathom their secular predicament in Islamic culture, modernists bit the bullet and blamed (as in espousing the historical and instrumentalist explanations of Islamism noted earlier) everybody else except themselves for their bad choices. The obstinate among us were quick at prophesizing the near-end of Islamic revival for being ‘less a sign of resurgence than of panic and bewilderment’ (Ajami 1993, 3). Muslim secularists have clearly failed to anchor themselves in a recognizable secular tradition in Islam. However, they have been trying to rub in, as secular precursors, the Mutazilites, the rationalists of the early ninth century, whom average Muslims only know about from the story of their unrelenting prosecution and persecution of Ahmad ibn Hanbal, the revered founder of one of the four authoritative doctrines in the tenth century (Rahman 1966, 90). Mahjub, the Secretary of the Sudan Communist Party, often lamented the fact that Islam was never watered down by a reformation or enlightenment. Whatever successes achieved in building a civil society in Muslim countries, this society has not taken off from its religious anchor. Ernest Gellner argues that the quick and early political success of Islam in Arabia did not allow it to create the church/state duality. To him, the original charismatic community of the Prophet had no need to ‘define itself as against a state which still remained alien.’ The community of the pious was the state from the start (Gellner 1992, 9). Akbar Ahmed acknowledged Gellner for coming to his rescue in a television discussion when the interviewer pressed him to accept the human origins of Islam. Gellner interjected saying that Islam has not been secularized, and ‘[t]his is the great mystery about it.’ Whereas other religions softened enough to permit the ambiguity of meaning, Islam, Gellner continued to say, did not. A choice before a believer in Islam therefore is ‘between being a Muslim and being nothing: there is no other choice’ (Ahmed 1992, 42). Students of Islamism are increasingly viewing it as an expansion of secularism rather than an antithesis of it. Islamic renewal, it is argued, is inextricably bound to, and a product of, nationalism. More than a political movement to end colonialism, nationalism is a ‘system for organizing the past that depends on certain narratives, assumptions, and voices’ (Dirks 1992, 14). The culture of the Muslim nation-state is hardly anything but Islam. The bomb-throwers, with their sacred madness, pictured by Western writers as emanations from out of the sacred

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texts of Islam, according to Said, are citizens of states that invariably declare in their institutions that the state religion is Islam (1993b, 63–64). Nationalism in Muslim countries has never succeeded in being an airtight secular enterprise. Not even close. In their invitation for the masses to participate in the manufacturing of the nation, the intelligentsia spoke the language of Islam understood to a public held hostage to religious brotherhoods. Socialism, modernity, and secularism, the other facets of nationalism, had a weak cultural purchase for they had no ‘ready body of historical mythology to mould and manipulate’ (Grundlingh and Sapire 1989, 27). Fundamentalists realized that nationalism, which let down the new nation, is but a thin layer encrusting Islam and decided to go to the real substance. Al-Turabi, whose theology of modernity and Islamic renewal will be discussed in Chapter 6, argues that nationalism and secularism looked bankrupt once independence was achieved. The public, he states, ‘understood that the nationalists were not prepared for anything else, that they had no program’ (Miller 1997, 196). Secularists have not reconciled to the fact that they are culturally handicapped when it comes to practice their belief in a Muslim nation. By merely calling their side of the aisle ‘left,’ Muslim leftists discovered that they had chosen the wrong side of a religion in which all God’s blessings are handed by, and on, to the right hand. In calling for multipartyism, liberals translated ‘parties’ into the Arabic aḥ zāb, a metaphor for contentiousness and divisiveness that originated in the context of the alliances that ganged against Prophet Muhammad in Medina. To make up for this cultural lack, secularists held fast to the colonial state as their corner-stone in their civil project. The more they felt savaged by Islamism, the more they grabbed the secular straws of the colonial state that we have seen labelled a ‘facsimile state’ because of its alienation from the culture of its subjects. Colonialists were at a loss in dealing with a religion they not only did not espouse, but also had a deep-set culture of crusading against it. Subsequently, the apparent separation of politics and religion in the colonial state is deceptive and needs to be analyzed as an administrative convenience rather than in strict secular terms. In conveniently reconciling themselves with the colonial ‘legacy’ of the separation of religion and state, Muslim secularists refuse to engage colonial knowledge critically. In so doing, they prematurely abandoned the fight for decolonization. Unlike prevailing yearnings for secularism condemning Islamism as ‘right-wing’ politics counter to more progressive currents of socialism and modernism (Choueiri 1990,

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10–11), or as a form of communal irrationality (Bilgrami 1992, 833), my advocacy for a discursive, enduring secularism takes Islamism as a legitimate political concern in which religion serves as the ‘authoritative basis for critique rather than an object of critique authorized by “reason” [emphasis added]’ (Lincoln 1995, 84; Asad 1993). This version of secularism I propose challenges many of the traditional assumptions held by Muslim secularists. Some start from the idea of the unity of church and state in Islam (Ahmed 1992, 42); a perspective, I argue, is incapacitating. On the other hand, the premise that secularism existed in the tradition (Djaziri 1993, 345) is too self-assuring to be true. An argument for secularism, I would suggest, cannot be made by saying that the concept lies behind us. Secularism, it will be argued, is a political alternative that is neither historically determined nor a pure product from which religious notions have been surgically removed. Although not the realm of happiness, secularism will come about because we desire it and are ready to invest vision, tolerance, and intelligence in tracking it. No tradition has ever recoiled from harnessing itself to an advocacy so beautifully pursued. This book is a passionate plea for a secularism that is self-critical and transparent. The book is intended as a contribution to a ‘critique of my movement’ genre into which Abdelwahab el-Affendi ushered (1990). I am modelling this introspection of my past misjudgements of Islamic revival, as a part of a Muslim secular collective, after Nathan Glazer, a veteran foe of affirmative action before a change of heart revealed in his: We are all Multiculturalists, Now. He said this on the energy and transparency one acquires by discarding old views: ‘There is nothing that concentrates the mind on an issue more sharply than discovering one has been wrong about it’ (1997). For now it is enough of the revelations of repentant secularists who saw the light of religion at the end of their secular tunnel. Acknowledging secular blunders should not be commensurate to a ‘born-againism’ and atonement. This call for secularism of praxis, and not of cultural imperatives, has to reckon with the fact that there is Islam after the passing away of ‘fundamentalism.’ To paraphrase the film, Raison in the Sun, there will always be Allah in the house of Islam. A political science steeped in Islam, as a political culture, will therefore be the best companion for Muslim secularists. The early notions of this political science are already challenging the conceived wisdom of Muslim secularists. Even staunch critics

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of fundamentalism argue that, to bring about secularism in Muslim countries, secularists should have invented Islamism had it not come of its own. Olivier Roy persuasively shows how Islamism may be the agent of secularism. To this effect, he argues that Islamism may have outplayed its hand by violating the historically structured autonomous political and religious powers in Islam. Roy’s position is predicated on a history of the relation between governance and Islam which is hardly translatable in the Western expectations and idioms of what secularism is all about. Roy argues that the separation of state and religion is original to Islam by default rather than design. Unlike the evolution of the state in the West, the Muslim state, distrusted by the clerics almost at birth, has never been allowed to emanate positive law. Arbitrary and violent sovereigns have been denied legislation in matters regulated by sharia. Subsequently, sovereigns have held on to power at the expense of attending to nonessential matters. The separation of state and religion here is not a progressive historical feat, or breakthrough. Rather, it is religion, being the good thing it believes itself to be, withdrew its confidence from the errant state. Islam, argues Roy, is therefore no breeding place for oriental despotism since the civil society, regulated by sharia, is indifferent to the state (Roy 1994, 14). In Islamizing the state, or making it atone to God, Islamism has tampered with this historical aloofness of sharia and governance. Unless the Islamists would come up with a new state unlike the traditional ones they despise, and there are no signs that this will be the case, Roy argues, the state will win out ‘but only after the religious sphere has been emptied of its value as a place of transcendence, refuge, and protest, since it is now identified with the new power.’ Secularism will then be ushered in (1994, 199). Chapter 6, on the theology of al-Turabi, will explain in more details the historical difficulties of Islam and the state. I will give vent in the book to my frustrations about and, I hope, my insights, into the disarray of the secular project in Muslim societies. I ask: Why did the robust trade union movement in the Sudan ignore the qadis’ unionism in the 1950s and 1960s leaving them to their own devices in redressing their grievance? Why did modernists continue to uphold practices that fly in the face of civil religion before affronting Islam? Why did we need a costly Islamic revival to delegalize colonial prostitution? Why did it take a ‘fundamentalist’ outburst to bring about the common courtesy of closing restaurants during the day-time in Ramadan, the Muslim holy month? Do morals in politics exit for secularists, or are they figments of the crooked imagination of the religious

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right? Why did we wait for a ‘political regression’ to remove bars from the vicinity of mosques? Why did we allow the guilds of modern lawyers and judges to dismiss the delay in delivering justice in technical terms rather than seeing it for what it was: a professional malpractice? What kind of modernist complicity is this? One would have liked his movement to have had seen and come to grips with both the politics and the politicization of morality described in the book. But it was so taken by its modernist ideals to be real and effective. Morality, in the modernist perspective, is no business of politics on the understanding that government is about rational administration and care of entire populations rather than moral disciplining of individuals. Rational politics, it is argued, has replaced ideology. We will see modernists in the Sudan shying away from engaging morality on these very same grounds. This sounds hollow, however, judging by the modernists regimes of the Third World which had lived and died by ideology. Even in the West, the moral imperative never gave up its claim to significant political relevance. The case of legalized gambling in the United States is instructive. Rev. Tom Gery, the field coordinator of the National Coalition Against Legalized Gambling, whose volunteer foot soldiers are from the right, blames progressives for not making gambling an issue. The fight against casino economy, he goes on to say, is not a prohibitionist cause. Rather, it is about social morality and social justice. Put in leftists’ language, gambling is the greedy wedding of ‘bottom-line entrepreneurs and cynical politicians who have given up on America’ (Cooper 1996). For believing that Islamic renewal is a reaction against modernity, modernists accepted Islamism as the inevitable, albeit transient, historical outcome of modernity. Throughout this work I will attempt to argue three things about Islamism. First, that Islamism, in the virulent form we see in the Sudan, could have been avoided had modernists been culturally alert and sensitized to a range of colonial acts and laws that legislated to Muslim subjects as a bunch of rascals, and not a community of believers. Second, Islamism, in Kepel’s words, does not seek to ‘modernize Islam but to Islamize modernity’ (1994, 2). Third, to interpret these renewal movements, as advised by Kepel, scholars have to hear this evidence in the context of the social praxis of these Islamic movements in a process of mutual illumination (1994, 11–12). Esposito has already pointed to a ‘secular fundamentalism’ standing between secularists and understanding the nature and motivations of religious movements. These modernists, argues Esposito, fail to

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recognize that their views, too, represent ‘a world view, when assumed to be self-evident truth, can become a “secularist fundamentalism’’ ’ (1996). Fanatics, Talal Asad states, do not come only from among believers. Skeptics have their fair share of them (1993, 236). Furthermore, Kepel calls for the overturning of the mental laziness that causes secularists to fail to interpret present-day movements within Islam (1994, 11). What Islamists say and do, according to Kepel, does not spring from a ‘dethronement of reason, or from manipulation of hidden forces’ (1994, 11). In action and rhetoric, these religious movements constitute, he argues, an undeniable evidence of a malaise in society that can no longer be interpreted in terms of pure traditional categories of thought (1994, 11). This is what Foucault, in examining the politics of Iran under the Shah, came to call a political spirituality ‘registered on the borders of heaven and earth in a history which was dreamt of as being as much religious as political’ (1999, 132). Whenever I pause to think of the miscarriage of the independence of my country I remember, as an eleven year old boy, the first time I heard the news of our independence. The situation of this reception was ominous. When an excited man broke the news to us, the children of the Railway station neighborhood, I was doing a hand-stand against the wall of a house across from the Red Cross offices on the Station Street. I still could see the excited man looking downwards rolling my eyes. When I think about it now the man must have told us about the signing of the February 1953 self-determination agreement between the British and the Egyptians, the co-dominos in charge of the Sudan. The agreement resolved the long-drawn conflict between the two powers and factions of the Sudanese on whether the Sudan should be independent, allegedly with strong ties to Britain, or to unite with Egypt. The agreement gave the Sudanese the right to decide the issue in three years from 1953 through a self-rule government elected in 1954 under the supervision of the colonial administration. Head-standing as a metaphor for discomfort cannot be ignored. I always hated my prodigious premonitions taking the news of the first good days. In being a hybrid merging ethnography and autobiography (Clifford and Marcus 1986), this book is my personal attempt to restore myself to the proper position to hear the future good tidings about my country. Half a century of discomfort is a small price for a rendezvous with a free, just, and worthy home. The critique of colonial knowledge attempted here is ipso facto a shaking of the nationalists’ imagination and praxis. If the SCP did

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anything right it was not only criticizing the nationalists, but also working hard to replace them. I grew up therefore free of disillusion with nationalist fantasies. Also, my father, a political skeptic at an unusual time of nationalist rhetoric, taught me to read the nationalist narrative as I like, in a spin on Steve Biko’s I write What I like. I remember the time in 1951 when he was taking me down the Markaz (district headquarter) Street to register me at Atbara South Primary School after he had been transferred from an outlying railway station. On the road to school, I was reading signboards on the buildings to impress my father, I guess. I wrongly read one of the names as al-Ashqiyā (the rouges, the rascals) whereas the correct name is al-Ashiqa (the Blood-Brothers), the most outspoken nationalist group in the country and the one that ultimately formed the first Sudanese government in 1954. Grinning, my father said: ‘You hit it right on the head, son.’ Looking back in anger at the wasted years of independent Sudan, I am not totally surprised. I never gave independence under the nationalists, as a receptacle of colonial knowledge, a chance. This book is a testimony of a witness of the times whose prodigious premonitions of the postcolony bore their bitter fruits.

CHAPTER ONE

IN THE SHOES OF THE COLONIZED This chapter will explain the geography of dividing colonies into ‘modern’ and ‘native’ spaces, which has best been described by Fanon as Manichaean for being opposed, but not in the service of a higher unity. To bring out the disabling colonial knowledge permeating this geography, this chapter will map these dichotomies and examine their impact on institutions as grand as the judiciary as well as on mundane objects such as types of shoes. The remainder of chapters will investigate the origins, dynamics, power, and the lasting impact of these dichotomies in the Sudan Judiciary. The Judiciary was, and perhaps still is, the site in which these Manichaean dichotomies clashed and fought to death. The Sudan Judiciary, as noted earlier, was established after the British conquest of the country in 1898. It comprised a Civil Division and Sharia [Islamic law] Division. Civil was defined in reference to the hierarchy of the Judiciary to mean ‘non-sharia’ embracing courts of civil and criminal jurisdiction. The Sharia Division, on the other hand, was ‘competent to decide, and apply sharia law, to personal status of Muslims’ on any question of marriage, divorce, family relations, inheritance, wills, legacies, gifts, and religious endowments. The Division was specifically and repeatedly denied any criminal jurisdiction (Tier 1992, 199). This duality, as usually described in legal discourses, was elevated in the postcolonial period into a constitutional principle, or provided for in ordinary law until the state decided to enforce the amalgamation of the Judiciary in 1972 and onwards (1992, 203–204). The conclusion of the book will be devoted to this checkered history of merging the institution. The disparity in power between the two divisions, which is crucial to the Manichaean argument of this book, was immense and tipped in favor of the Civil Division. Even an astute critic of the sharia law conceded that ‘the restrictions on the competence of sharia courts over persons and with regard to the subject matter’ left the Civil Division of the judiciary with enormous judicial power and prestige. ‘In criminal law, for example, the civil division is as much concerned with law and order as are the executive and the legislative organs’ (Tier 1992, 204). In terms of

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leadership and pay, the Civil Division was made superior to the Sharia Division, the civil judges were to supervise qadis, and terms of service were stacked in favor of judges. This hierarchy led to a deterioration of relations between the two divisions. After the independence of the country in 1956, a disgruntled Sharia Division played out its grievance to lobby for professional respectability. This book will investigate the politics of the Sharia Division that ultimately led to the amalgamation of the Judiciary under Islamic law in 1983. Writing from the Boundaries of Eccentricity In 1988–1989 I collaborated with al-Tayyib M. al-Tayyib, a free-lance writer and a perceptive folklorist, in presenting a weekly program for Omdurman Radio. For practical purposes the name of the program can be glossed as ʿAbdullahi al-Shaykh al-Bashir Reminiscing.’ In the program we interviewed Mr. al-Bashir, a poet, a man of letters, and ex-president of the Association of Teachers of Arabic and Islamic Subjects, to elicit a blend of a biography and autobiography. At the time of the interviews al-Bashir was diabetic, retired, bed-ridden, and blind, because of unfortunate complications in his illness that eventually led to his death in 1996. The program appealed to me for a variety of reasons. I wished to express my kinship solidarity with al-Bashir, since we both descend from ʿAli Ibrahim, a great grandfather, and are members of a social network in Khartoum that carries his name. I also wanted to acknowledge my gratitude to al-Bashir, for through his exquisite and persuasive taste, I became acquainted with some treasures of Sudanese culture and folklore. My engagement in the program, in as much as I consciously thought of it, was an excursion into the ‘romance of the marginal’ (Connor 1989, 236) in which kinship obligations and gratitude reigned supreme. As a novice in critiquing the national grand narrative of Sudanese history authored by the Westernized elite of Gordon College, however, I was curious to know how a member of the traditional elite, such as al-Bashir, viewed this narrative. ‘Traditional’ here refers to being a graduate of a non-Western system of education in which the English language, an empowering tool in both colonial and postcolonial Sudan, is conspicuously absent. It transpired that I was unprepared for the nuances and surprises of al-Bashir’s narrative. My excursion in the

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romance of the margin was soon terminated by a childhood memory with which al-Bashir keyed his story: As a kid of seven or eight I was attending a khalwa (Qur’anic school) in Khartoum. One day we were taken to a celebration the occasion of which I either forgot or they just did not care to tell us about. At the celebration site we were lined in front of Khartoum railway station along the Tabiya [garrison] Street facing Victoria Street, which led to the GovernorGeneral’s Palace. Pupils of government schools were made to stand to the left side of the station whereas the khalwa pupils like me occupied the right side. We felt as though we had waited forever for the British official in whose honor this celebration was held. At last a British official came from our left side riding a horse along the Tabiya Street reviewing the line of pupils who were assembled to greet him. At the point that divided us—the pupils of khalwa—from those of government schools, the British official stopped his horse, turned it left in the direction of the GovernorGeneral’s Palace, and vanished. Whenever I find the time to think of my life against the landscape of employment, culture, and politics in the Sudan, I always return to where I stood as a child staring into the void drilled by the refusal of that British official, the symbol of power and legitimacy, even to take notice of our presence. It was as a child at the threshold of ‘traditional’ education, which I eventually pursued through al-Mahad al-ʿIlmi [a religious seminary] of Omdurman, all the way up to its peak in al-Azhar University in Cairo, that my subordination to students of government school was unequivocally impressed upon me. I still taste the bitterness I felt on that reception day when my childish inquisitiveness was violated, and my deserved need for attention trashed. I felt disenfranchised when my gaze was not returned. Nothing has ever changed for me since.

Like V.S. Naipaul, al-Bashir realized from an early period that to be born in the wrong place is to be born to disorder.1 As an adult he continued also to ‘discover that disorder has its own logic and permanence’ (Ashcroft et al. 1989, 88). His fight for justice and equality will be dealt with shortly. In so framing his story, al-Bashir deployed it as an oppositional gaze from the periphery to the ‘central’ history of colonialism and postcolonialism constructed largely by effendis, that is, modern government school graduates. Al-Bashir’s reading of this national grand narrative is intuitively subversive. The disfigurements of the narrative lie exactly

1 Similarly, Ahmad Amin (1887–1954), the Egyptian academician, described his transfer from a Qur’anic school to a modern school as departing ‘anarchy to order and artless life to an artful one’ (in Danasuri 1989:23).

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where his body is. His voice abates in the narrative silences. The canons of the narrative disenfranchise him and commemorate his pacification or absence. As a carrier of this fiction of centrality myself, I found in al-Bashir’s narrative the right antidote to the loneliness of the center. The more I listened to it the more it engaged me in an exercise of unlearning privilege (Spivak 1990, 30). This book owes some of its origin and passion in large part to this encounter with al-Bashir. The line separating the khalwa pupils from the school pupils is metonymic of the geography of the social pathology of colonialism (Ashcroft et al. 1989, 3). As an otherness-machine (Sara Suleri in Appiah 1992, 157), colonialism was capable of turning the colonized society into a Manichaean organization in which space is graphically and scandalously divided into ‘colonial’ and ‘native.’ Fanon describes the latter, as already noted, as representing not only the absence of value but also the negation of it. The British official who stopped reviewing the students right where he did, obtrusively and offensively indicated its state as antithetical to values: at the watershed between order and disorder. ‘Manichaean’ According to Edward Atiyah Edward Atiyah, a Lebanese Oxonian who taught at Gordon College in the 1930s and later worked for the colonial Intelligence Department, was a victim of this unswerving colonial politics of space. He describes this indelible line between the colonized and the colonizers as the ‘obnoxious fence’ (1946, 137). Not even his Oxonian credentials helped when it came to the blind logic of this fence. Atiyah always found himself on the side where other natives had stood. He tells with anguish how he was once herded with the Sudanese faculty into an office before the visit of the Governor-General (1946, 147). Atiyah’s articulation of his ‘obnoxious fence’ is a mature precursor of the Manichaean concept popularized by Fanon two or three decades later. It is noteworthy that Atiyah not only put his finger on this novel concept, but described the power underlying his ‘obnoxious fence’ in terms almost identical to those of Fanon: People on either side did not merely dwell apart. ‘They dwelt apart in the manner of a superior species’ (1946, 138). This dramatic severing of the colonizers and the colonized is reminiscent of Fanon’s characterization of the insolvency of this colonial zoning.

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Time to Split From schools to cities, to marketplaces, to the judiciary, to categories of schoolteachers, down to shoes, colonial society in the Sudan exhibited its colonial Manichaean organization. The world was split into ‘this world’ where the unbelievers prevail and the ‘other world’ where Muslims are going to finally succeed (al-Tayyib 1994, 186). In terms of cities, Khartoum (General Gordon’s site of martyrdom in 1885 at the hands of the Mahdist rebels) was piously and fervently developed at the expense of Omdurman, the center of evil and disorder under the Mahdist state in the Sudan (1881–1898).2 In ‘civilized’ Khartoum itself the marketplace was split into afranjī (European) and ʿArabī (native) quarters. We have seen from al-Bashir’s story the colonial reality of the distinction of ‘traditional’ and ‘modern’ elites derived from the duality of school (the modern site for learning) and khalwa (the traditional school). The Judiciary comprised the Civil Division and the Sharia Division, the latter being subordinated to the former. Schoolteachers were categorized as shaykhs (teaching Arabic and Islamic Subjects) and effendis (teaching modern subjects). Styles for studying were conceived as the kab (rote memorization) of traditional education or as understanding and discussing texts of the modern schools (al-Tayyib 1994, 235–237). The story of these enclaves goes on and on. Taxes are split into al-ṭulba, fixed by and given to the colonial government, and zaka, fixed by Islam and given as alms. Liquor was divided into European and native. Calendars were split into afranjī (European) and ʿArabī (Arabic) or Hijri (Muslim). Men’s hairdressing could be either styled as kāray (modern) or ṣalʿa (lit. bald or closely shaven). Women’s hairdressing was the European tasrīḥ a or the native mushāṭ (braiding) styles. Dress was either afranjī (European) or baladī (native). Wood was either naṣara (unbelievers, Christian) or baladī (native) kinds (1994:162–163). Even shoes were categorized according to this ruthless fragmentation. They were differentiated as jazma (European) or as markūb (native). The Manichaean geography of the colonial space was the outcome of both the colonial, crushing, physical dominance and the mental fantasy of the colonial mission of redemption. The Manichaean line forcibly and mercilessly created a hierarchy of spaces in which the modern/invasive/

2 Abubaker al-Shingieti (1992) gives a useful introduction to the colonial discourses surrounding the relevant statuses of the two cities.

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Westernized was pitted against the traditional/authentic/oriental in an eternal drama of good versus evil, right and wrong, light and dark, and canons and travesties. The Unrelenting War of the Two Saints The different treatments accorded by the British who invaded the Sudan in 1898 to the Mahdi, ‘the Arab priest’ according to Winston Churchill (1938, 13), and Gordon, the two ‘saints’ who dominated the history of the late nineteenth-century Sudan, is symbolic of the politics of colonial Manichaean space. On September 1, 1898, the British bombarded Omdurman, the capital of the Mahdist state, to terrorize the Mahdist forces before the actual combat, which took place later in the evening. In shelling the town, the invading army made the dome of the Mahdi’s tomb a particular target. An officer later wrote: ‘The Mahdi’s tomb was a splendid target and was hit plumb in the center of the dome at the third round. It is beautifully built of red brick and lime and took some demolition’ (Harrington and Sharaf 1998, 158). The native hordes were impressed and hurt by this play with fire. When a huge crack appeared in the dome, writes a Mahdist who was mobilized to defend the cause, ‘the people were dumbfounded, their shouting ceased, even the neighing of horses was stilled’ (Bedri 1969, 235). Across the Nile in Khartoum, once more the capital of the Sudan, the ‘canonization’ of Gordon as a ‘saint’ was afoot. The Church Missionary Society, let it be remembered, had already donated 13,000 British pounds to sponsor a Gordon Memorial Mission in the Sudan. On September 4, 1898, three days after the reconquest, a service was held in the ruins of the Governor-General’s palace where the Mahdists killed Gordon. The British and Khedival anthems were played and the British and Egyptian flags were hoisted. ‘Hymns were sung, prayers said, and the scripture intoned. The Roman Catholic chaplain prayed that God would look down . . . with eyes of pity and compassion on the land so loved by that heroic soul whose memory they now honored: that of Charles George Gordon’ (Daly 1986, 1). To prevent the defeated Mahdists from a symbolic rallying center, Kitchener, the commander of the conquering troops and later briefly a Governor-General of the Sudan, gave orders to raze the Mahdi’s tomb to the ground and to cast the bones of the Mahdi into the Nile (Warburg 1970, 6). The skull of the Mahdi, however, was presented to Kitchener as a ‘trophy’ (Daly 1986, 6). Not much of thinking went into the

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decision to remove this native shrine. The British hated it, and they would think of a reason later. An officer wrote describing this lack of interest in explaining the demolition of the tomb: You are at liberty to assign any cause you please to its removal. We may say that so long as it stood it was a menace to our rule and inducement to a removal of fanaticism. We may say that in its semi-demolished state it was a danger to life and living, anyhow as long as it stood it was a . . . conspicuous memorial to celebrate the victory of the Savage over us, and now that it ceases to exist our disgrace may be forgotten and atoned for. The poor devil’s bones are gone too and quite right. Many folk wonder where they are, so just let them wonder. I wonder what happens when you can’t find your complete set at the Last Parade. (Harrington and Sharaf 1998, 158)

This insensitivity to the sanctity of the dead was generally perceived as an effort to avenge Gordon’s death, yet it caused widespread resentment in Britain. However, Kitchener defended his decision to destroy the tomb as dictated by political considerations and on the grounds that orthodox Muslims, in contrast to dervishes, fully backed him in this decision (Warburg 1970, 6). Churchill, who accompanied the army of ‘reconquest’ as a war correspondent, ironically captured this early sterility in the Manichaean way of colonial thinking and acting when he wrote critically of the razing of the Mahdi’s tomb: It was a ‘gloomy augury for the Sudan that the first actions of its civilized conquerors and present ruler [Kitchener] should have been to level the one pinnacle which rose above the mud houses’ (Daly 1986, 5). The Great Chase of Light and Darkness Colonial Manichaean politics was a consequence of the self-appointed civilizing mission of colonialism. The condominium government was supposed to run the country in ways that contrasted well with the crushed dervish state. The British were to act as ‘leaders to [Sudanese] barbarians’ (Warburg 1970, 78). Recruited in subordinate posts in the administration, the Egyptians would not be allowed to repeat their past misgovernment of the Sudan during the Turco-Egyptian regime, 1821–1885 (Abd al-Rahim 1969, 32) to provoke another Mahdist insurrection. Kitchener therefore warned the class of Egyptian administrators against accepting bribes (Warburg 1970, 4). Lord Cromer, the British Consul in Egypt who organized the British campaign under Lord Kitchener to chase the Mahdist darkness from

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the Sudan, gives his Manichaean good tidings of the victory as follows: ‘The canon which swept away the Dervish hordes at Omdurman proclaimed to the world that on England—or, to be more strictly correct, on Egypt under British guidance—had devolved the solemn and responsible duty of introducing the light of Western civilization amongst the sorely tried people of the Sudan’ (Holt and Daly 1979, 115). Three decades later, J.A. de C. Hamilton of the Sudan Political Service chose ‘From darkness came light’ as an epigraph for an edited book explaining and commending the colonial record of progressing the country toward the light at the end of its long tunnel of darkness (Hamilton 1935). We Have the Maxim, and They Have Not This lesson of the lethal canons that crushed the Mahdist state was not lost on the defeated. One of these fighters left the battlefield with a profound respect of the Maxim-gun with a fantasy of firing a Maxim gun one day. He eventually realized his dream when he fought with the British in West Africa. It is suggested that this Mahdist could have been a Hausa man from today’s Nigeria who had joined the Sudanese rebellion while on his way to or from a pilgrimage to Mecca. It is probable that he returned to Nigeria after the defeat of the Mahdists in 1898. He later enlisted as an NCO in the British West Africa Frontier Force, which was sent to fight against the Ashanti kingdom in modern-day Ghana in 1900. In this war a number of British officers working on two Maxims were put out of action by Ashanti fire. The Maxims were silenced, but this ex-Mahdist NCO got one into action again and blasted the Ashanti forces (Myatt 1966, 91). In less than two years, a native had mastered the cannons that had mowed down his comrades in the Sudan with their holy spears and swords. Dwellings of the ‘Mud Age’ The British wished Omdurman, the Mahdi’s capital, away. Although the British captured Omdurman they never mentioned it. Instead, their prize was the Khartoum of Gordon (Daly 1986, 7). In a letter written after the battle of Omdurman for Khartoum, Archibald Hunter spelled the future of the two towns: ‘Khartoum is a complete ruin. It will be rebuilt, Omdurman will be strongly garrisoned and otherwise it will be gradually obliterated’ (Harrington and Sharaf 1998, 158). Kitchener, on

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the other hand, had vowed to empty Omdurman of its ‘useless mouths’ (Kramer 1991, 256). Fifty years after the conquest, Omdurman was still around but meaningfully reduced to a backdrop against which the progress of Khartoum was measured. Henry C. Jackson, a British political servant, wrote, ‘Although only a few minutes’ journey by steam ferry separated Omdurman from Khartoum, centuries of time divided the two cities. . . . The journey from Khartoum to Omdurman was more than a journey across a mile of water to different surroundings and different peoples; it was a journey that took us back to the kind of life our ancestors lived in the City of London in the fourteenth century’ (Jackson 1954, 80–81). Kitchener conceived of Khartoum as the shrine of Gordon. After avenging Gordon, he reestablished the seat of government at Khartoum, in the place where Gordon had ruled (1970, 3). A Gordon Memorial College was opened in the town in 1902. As the guardian of Gordon’s shrine, Kitchener showed zeal and obstinacy in building Khartoum. His obsession with this matter drew sharp criticism. It was written in The Times in April 1900 that the building of Khartoum was executed ‘by the autocratic will of a single man’. The criticism was provoked by Kitchener’s insistence that some of the trainloads of building materials destined for Khartoum not be canceled. At the time those trains were badly needed to supply grain for the famine-stricken provinces (Warburg 1970, 3). In the early colonial period, Khartoum and Omdurman also spent their leisure time differently. Casinos, picnics, parks, and bars dotted Khartoum. Omdurman lagged behind. As early as 1919, Khartoum population is described as having picked up a fairly robust colonial taste and modern habits of leisure time. The Tramway and Khartoum administrations opened two parks, one at the confluence of the two Niles and the other in Khartoum North. Music played on Sundays and Fridays. A cruise ferry carried people to the Khartoum North Park. People were charged for these Nile picnics. Khartoum-Omdurman ferry, named Avnis, had its first level designed for Sudanese elites of merchants and officials who would turn the trip into a literary circle. Candies and soda were served. A coffee shop in Khartoum owned by a certain Amin witnessed the evening meetings of Khalil Farah (1898–1932), the most celebrated singer of national resistance and his friends. Yani, a Greek, waited on them singing the entire time. The name of the shop’s owner

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and his waiter would eventfully become popular among the Sudanese because Khalil has them in a line in a popular song: O Yani our singing nightingale Your tunes have prevented us from sleep, I swear Repeat your song, O Amin Please, tell me whom do I love? (Kisha 1964, 72).

Where the headquarters of the postal service is now situated in downtown Khartoum was the Skating Casino, teaming with foreign dancers, and theaters for silent movies. Dimitri al-Bazaar, a Greek who invested generously in the promotion of Sudanese song culture, risked renting the Skating for a Sudanese night of singing. He lost his foreign audience, according to the chronicle, ‘when the first song was performed’ (1964, 73). The indomitable al-Bazaar never gave up on the local song, and he later succeeded to some extent. Horse racing was afoot in Khartoum. A zoo opened for the public. The Frontier Music Band played in the then still treeless and grassless parks. Omdurman, on the other hand, is mentioned as the theater of an energetic culture of native visitations. In this culture people crisscrossed the town in response to the endless invitations for feasts entertained by Sufi dhikr and songs performed in praising the Prophet or the numerous holy men of the Sudan (1964, 73). The architecture of the two cities also factored in the British dislike of Omdurman. It was loathed by the British of the conquest era who saw it as a typical mud-age (Davies 1957, 83) village or town of ‘mean Sudan’ (Kramer 1991, 42).3 In their distaste for the town, they compared it to a ‘rabbit-warren’ (Kramer 1991, 42; Davies 1957, 23). Its huts, wrote G.W. Stevens, were left either unfinished or deserted and had fallen to pieces after the conquest. He continued to deprecate the town by saying, ‘There were no streets, no doors or windows except holes, usually no roofs. As for a garden, a tree, a steading for a beast—any evidence of thrift or intelligence, any attempt at comfort or amenity or common cleanliness—not a single trace of any of it. Omdurman was just a planless confusion of blind walls and gaping holes, shiftless stupidity, contented filth and beastliness’ (Kramer 1991, 42).

3 Incidentally, the Mahdi selected Omdurman, which lies across the Nile from Khartoum, the capital of the Turco-Egyptian administration, because the Qur’an forbade him to dwell in the ‘dwelling-place of those who wronged themselves’ (Qur’an 14:45).

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The contrast with Khartoum therefore came handy to these British officers. Davies said Khartoum was very much of the twentieth century. He continued: Its broad roads were lined with avenues of trees; in dignified office buildings typewriters clattered and senior British officials were served by British head clerks controlling Sudanese subordinates in well-ironed tropical suits; the seniors occupied modern houses with pleasant gardens and grass tennis courts; there was electric light and a proper water supply; ceiling-fans cooled the brow and ice [then unknown in the provinces] the drinks. It all seemed a little too civilized—not the kind of life we had come to Sudan to lead—and we were impatient to get away [to rural mud-age Sudan]. (1957, 25)

The tale of two cities related here bears witness to the sterility of the colonial dichotomizing structure. In failing to pick up from what Churchill described as the one pinnacle that rose above the mud houses, the colonialists inaugurated their own sacred, costly high-rises. At any rate, the two towns remained in opposition but in service of nothing holier or higher. ‘Cold’ for Civilization, ‘Hot’ for Backwardness Weather was also used to explain the backwardness of the colonized. In geography lessons, students were introduced to the ‘fact’ that tropical climates breed backwardness (al-Tayyib 1994, 9–10). They were taught that the progress of Japan in industries was a function of their ‘European’ temperate climate. Japan succeeded in industrialization, according to these geography lessons, because it is northern and maritimal like the British Isles. Temperate currents from the Gulf and the Pacific bless both, respectively (1994, 124). Al-Tayyib tells about a student who took the association between climate and progress to heart. To decrease the heat in the dorm sleeping quarter he would spray the floor with water, a common and efficient practice to effect mud cooling. He would explain damping the dirt floor by saying that he wanted the room to cool for the students to modernize. His roommates did not like him messing up the floor and had to restrain him (1994, 10). In the Shoes of the Colonized One does not want to be in the shoes of the colonized literally. Colonialism was not averse to engaging even shoes in constructing its authority. Shoes also were ordered in a hierarchy in which a European jazma (shoe)

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was deemed superior to the native markūb (shoe). The rule of thumb was that when entering the office of a British official, a markūb-wearer should take them off at the door, as a token of respect.4 In presenting their authority to the colonized, the colonizers turned shoes into a ritual idiom as shown by the ‘shoe controversy’ in India.5 Al-Tayyib Babikir, a participant in the 1924 Revolution, was a victim of this idiom of power. He was taken to see the District Commissioner of Shendi town when he had been in detention for his part in the 1924 Revolution against the British. The Commissioner foamed with anger because Babikir walked into his office in his markūb. He asked Babikir to explain this discourtesy. Babikir said: ‘Why should I take my shoes off before entering an office? What is sacred about an office to deserve this act of humbleness? It is not a mosque.’ ‘But you are a prisoner.’ ‘I am incarcerated for no good reason. I am an innocent man.’

A Sudanese notable, who witnessed this interaction, fell at Babikir’s feet and began taking the markūb off, one shoe at a time. The notable was imploring Babikir, ‘Son of my uncle, by the divorce of my wife you would take this markūb off. ’6 The notable personally took the markūb off and placed it outside the Commissioner’s door (The Institute of African and Asian Studies 1974: Vol. 2, 349–351). The rule of the taking-off of shoes was apparently so firm that would-be native knights of the Empire were not exempt. Babiker Bedri (1861–1954), whose uninhibited memoirs are a delight to read, ran into Sir Ali al-Tom of the Kababish nomad community, sitting in the office of the Natives Affair Officer, Davies, with his shoes lying on the doorstep. Bedri saw the ritual for what it had become. He said, ‘I was astounded by both the hoax [a proud man playing along in showing absolute loyalty] Shaykh Ali al-Tom was playing on the British officer and the ready acceptance of the British of this abject humiliation of a

4

For a comparable colonial situation, see Davidson (1992, 176). The ‘shoe controversy’ in India was part of this idiom. Wearing shoes by Indians in what the British defined as European space was seen as an effort to establish a relationship of equality with the rulers. Indians were therefore asked to take off their shoes when entering the space of the colonizer. The British, however, ‘always insisted on wearing shoes when entering Indian spaces, including mosques and temples.’ Nonetheless, an Indian who habitually wore European clothes would be allowed to wear his or her shoes in the presence of the British (Cohn 1987, 644). 6 We will deal in Chapter 2 with the sharia implications of the custom of using the repudiation formula of divorce to prevail in an encounter as described. 5

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man they would call Sir—the very same title of the Governor-General’ (1960: Vol. 2, 250). Colonial officers felt especially offended to see unauthorized natives wearing European shoes. With so many European shoes going around, these officers felt threatened with disrespect and insubordination. Yusuf Bedri, Dean of Ahfad College, told the following story about his encounter with J.N. Richardson, a British District Commissioner, who was apparently suspiciously guarding his right to native deference: Yusuf Bedri recalled . . . [an] encounter at the age of twelve which became so imprinted on his mind that subsequent years of congenial relations with British officials could not entirely erase it. On his way to school . . . he was confronted by . . . Richardson. ‘I was wearing European shoes, not markub, the locally produced shoes . . . He said, ‘Why are you wearing these?’7 I replied, ‘Well,’ and gave a sheepish answer . . . I said, ‘These are given to me by my brother who bought them from a shop.’ He sent me back in a furious temper to change my shoes and put on my marcoub [markūb], the native shoes. By the time I got back to school, I found the whole school paraded and Mr. Richardson was inspecting the shoes of the pupils. Every boy wearing European shoes was sent home to change into Sudanese shoes. (Deng and Daly 1989, 102)

The shoes discourse is subtler than meets the eye. In describing the colonial arrogance of a District Commissioner, Abdalla al-Tayyib, a distinguished scholar of Arabic literature, tells about the habit of the administrator of ordering people to take off their Japanese asahi shoes. People caught wearing these doubtful shoes were asked to buy markūbs. Credit was given to the Commissioner for his interest in encouraging the local industry of shoes. On second thoughts, however, people doubted that his real motive might have been to hurt Japanese industry for national British interests. The Sudanese had a favorable opinion then of Japan whose Orientalism had not prevented it from competing with the Occident on an equal footing. Al-Tayyib criticizes this colonial drive for authenticity for betraying a colonial nostalgia (al-Tayyib 1994, 124). Wearing asahi shoes was apparently the way some folks showed off their modernity—supposedly a virtue at the heart of the colonial mission. Denying people this inexpensive means to appear modern is a classical

7

Pupils of elementary schools were made to wear the native dress of the district. Natives were strictly prevented from wearing shoes. Pupils, who were not native of the Sudan such as the sons of resident Egyptians, could obtain permission from the headmaster to wear the dress of their country (Beshir 1969, 61).

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case of colonial nostalgia revolving around a paradox: colonialism alters a way of life ‘and then regrets that things have not remained as they were prior to its coming’ (Rosaldo 1989, 108). The War of Holidays Muslim Sudanese were made to reckon time according to two calendars, the Western and the Islamic. Yet, the two calendars stood in a hierarchy of power in which the solar, Western calendar regulated the rhythm of work, administration, and business, leaving the lunar Muslim calendar to regulate an increasingly shrinking sphere of performances such as Islamic holidays and rituals.8 This ordering of significant time according to the Western calendar led Muslims to lose sight of the stars, in which the Qur’an anchors mastery of time. As a result Muslims, as suggested by Fatima Mernissi, became exiled in time (Mernissi 1992, 131).9 The incompatibility between modernity and the Muslim calendar became apparent in 1921 when Sunday was instituted as a day of rest for Port Sudan, the port town the British built from scratch. The decision did not sit well with Muslim religious authorities. For except for southern Sudan, which had been administered separately anyway, the rest of the country kept Friday as the holiday. Asked for a response to the Sunday decision, the Grand Qadi demanded that sharia courts not be closed completely on Sundays. Further, he wanted Muslims to be excused from work earlier than 11 a.m. to prepare for Friday prayers in the mosque. The qualified objections of the Grand Qadi were presented to the government in order to seek a solution to the problem that was less likely to ‘provoke incorrect talk and apprehensions.’ The Governor-General 8

The authoritative Western calendar violated the plurality of calendars that was in place before the coming of the British. Muslim farmers and pastoralists recognized from time immemorial that the lunar Muslim calendar was not good enough for their specific business. Lagging eleven days behind solar calendars, the Muslim calendar confused farming and pastoralist cycles. To rectify its deficiency, farmers have observed a Coptic calendar and a ‘folk’ calendar. The folk calendar looked up to the stars to reckon time, too (al-Sahafa 11 October 1984). For reckoning years, however, they continued to use the Muslim calendar. 9 In recognition of the superiority of the West, the Ottoman Empire began building clock towers in the form of minarets. The clock towers were attempts to graft onto the Ottoman world the punctual ways of the West. It did not work. ‘The harder the empire tried to secularize time, the more absolutely ordinary it became,’ and the people of this sprawling state grew ‘disputatious and querulous’ (Ajami 1999, 7).

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met none of the Qadi’s demands although, as a cover up, he ordered the discussion about the Sunday resolution to be expunged from the records (Perkins 1993, 116). With too much modernity and too many transactions at stake at Port Sudan, the British were not averse to tampering with their declared policy of respecting the religion of the ruled. The wisdom of the modest, face-saving amendments to the Sunday decision offered by an embarrassed Grand Qadi were recognized—but declined. Instead, the government, not unaware of treading on thin cultural ice, resorted to covering its tracks. Reverting to the Islamic calendar has been an article of faith in the Muslim authenticity discourses. President Nimerie, whose despotic years in power were oppressive and long by all calendars, made a lame attempt at reversal in 1984 (al-Sahafa 9 November 1984). The reversal was presented as being in compliance with the 1983 recommendations of a committee of experts working under the auspices of the Muslim World League of Jeddah (al-Sahafa 1 and 4 November 1984). The decision was plagued by short- and long-term blunders and difficulties. First (and this should have come as no surprise), Westernized elites executors of the decision showed their unfamiliarity with the Muslim calendar. Therefore authorities had to issue a follow up in order to correct the glaring mistakes. Second, the decision was rescinded after the 1985 Revolution that ousted Nimerie. Westerners in the business circle, critical of Nimerie’s Islamic experiment, were baffled most by the prohibition of interest in credit and the institution of the Muslim calendar. For them, the Sudan suddenly began talking mumbo-jumbo in vital matters of money (de Waal 1994, 49). Zaka and Taxes Levying taxes also showed the duality of the colonial geography. Muslim taxpayers were burdened by paying two forms of taxes. The first form is the zaka, regulated as to its quantity and distribution by Islam. Muslims are bound to pay zaka, one of the five pillars of Islam irrespective of the religious belief of the state under which they live. Although they were not required to pay it by the British administration, seeking to be good Muslims, they paid it all the same. Additionally, this administration imposed on them, as colonial subjects, a tax on their crops known as al-ʿushūr. Ironically, al-ʿushūr was in reality the zaka Muslims had paid under the Mahdist state. In usurping the excise out of its religious

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context, the colonial government was merely doubling the taxes of their subjects in the process (ElKhalifa 1988, 48).10 Hair-Dressing Styles of wearing hair were also identified as ‘native’ or ‘modern.’ Traditionally, Sudanese men wore their hair as ṣalʿa (lit. bald; closely shaven) whereas those who came under the influence of the British adopted their style commonly known as kāray. A renowned academic, al-Tayyib, related when his father took him as an intermediate school boy to Gordon College in 1933. The father told his son that he would end up graduating from the college. ‘You will wear your hair kāray and study in Europe,’ the father said (al-Tayyib 1994, 153). In 1935, al-Tayyib enrolled in the college and left for England in 1945 to do graduate work in Arabic literature. He was still wearing a kāray until his death in 2004. Shaykhs of Darkness, Effendis of Light Dress was and still is identified as afranjī (Western) or baldī (native) and tailors specialize in either one or the other. Gordon College students, fashion-setters for the urban population, wore Western clothes topped by tarboosh in 1906 (Sharkey 1998: Vol. 1, 108).11 The Indian topee and the hat became the fashion in the 1920s (Najila 1994: Vol. 2, 80). The students were fond of this dress, which symbolized ‘escape from manual labor . . . [evoking] modernity, education and an office job’. A style of life British officials would have sniffed at as “effendyism” ’ (Sharkey 1998: Vol. 1, 109).12 Before the commencement ceremony, students would proudly try on their suits with the yāqa (collar) and hat in their dorms (Najila

10 Cromer, the British Council in Egypt, repudiated the harsh manner in which taxes had been collected during the Mahdist state in the Sudan. However, he conceded to their basic fairness, as recognized in all Muslim communities (Abd al-Rahim 1969, 39). 11 Abdalla al-Tayyib, personal communication, Khartoum, March 1991. 12 Al-Tayyib confesses that as a student of Gordon College on vacations in his village, he felt awkward and displaced. He was being prepared for a softer career than his folk. In crossing the river with his people he would act tough and row the boat even harder than the people who had practiced this all their lives. However, his toughening did not help. Although his folks liked him for the thought, they had a lot to say about his rowing (1994, 17).

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1994: Vol. 2, 80). However, student qadis wore ‘caftan and silk belts that were the mark of their profession’ (Sharkey 1998: Vol. 2, 108). The folk did not approve of the Western dress. The pants were seen to be too tight to be decent. They were dismayed by the hat and considered wearing it an apostasy from religion. They did not reconcile with it even after coming to accept the suit (al-Tayyib 1994, 27). Al-Tijani Yusuf Bashir (1910–1937), the renowned poet, wrote critically of wearing hats in an article he published in 1936. Wearing hats, he argues, is pushing the envelope of modernity way too far and a pronounced apostasy from Islam and Arabism. Heads packed in this European sack are evidence for all to see the ardent falling for decadent Europe by the young Sudanese (Abdul-Hai and Bashir 1978, 164–165). The British kept for themselves the right to decide who was entitled to wear Western dress. No sooner were they disappointed in the Sudanese elites for their nationalistic outbursts than they denied them the right to put on Western dress. During the restive post-First World War period teeming with national yearnings and expressions, the college forbade students to wear Western dress. In 1925, immediately after the elite-led revolution of 1924, the Governor-General directed that students . . . cast off their shoddy European clothes . . . and revert to national dress (Sharkey 1998: Vol. 1, 109; Bashary 1981, 51). Even some government employees who had graduated from college were also forced to wear jalabiyya and turban. Students were forbidden to wear Western-made shoes, jazma, since wearing these—in contrast to wearing native-made shoes, markūb, (Sharkey 1998: Vol. 2, 233–234)—meant they did not have to take the shoes off when they saw a British official. This policy of stripping the elite of the right to wear European garb was met in various ways. For some it became a vehicle of resistance. Salih ʿAbd al-Qadir, who later emerged as one of the leaders of the 1924 revolution, dropped out of college in protest. Ahmad M. Salih (1894–1973), a nationalist poet who later became a member of the Supreme Council of State (SCS) in 1956, held to his guns and continued wearing Western garb anyway. Farah ʿAbd al-Rahman Hamid (b. 1907), a translator, discarded the Western dress voluntarily and wore his native dress as an expression of resistance to colonialism (Sharkey 1998: Vol. 2, 244). Dress became a flashpoint for the transfer of power, and was taken seriously by people brought up in the Manichaean geography of colonialism. The widow of Ali Abd al-Latif, the leader of the 1924 Revolution, was asked if her husband had put on disguises in carrying out his political work. She answered: ‘No. He always wore his suit. He never wore the

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jalabiyya except for performing prayers. He only wore his suit when he was out of his house’ (Institute of African and Asian Studies 1974: Vol. 2, 382). Another 1924 veteran, and an effendi with the postal service, ʿAli Malasi, reminisced that the police sent to arrest him wanted to take him to the station in the jalabiyya. In disbelief that such a demeaning thing was going to happen to him, Malasi turned to Mr. Howell, the assistant Governor of the province, and said: ‘Don’t listen to the police sergeant. He is dumb. I promise you that I will get into my uniform and walk down with you step by step to the station.’ Mr. Howell agreed, and Malasi put on his pants and jacket and accompanied the police to the station (1974, 315). For some people, the mystique and power of Western dress went to their head. A good-looking chief clerk in Kasala town is said to have been obsessed with his attire. When he bought a new suit, he would show it to his friends, parading it like a manekin. He was fussy about pockets, matching ties, and shirts. Taste for the Western garb became so sophisticated to the extent that effendis would mail order shoes from England through Bartsh, a British company (Yasin n.d., 28). Some effendis were really carried away by this obsession with Western clothing. As children we used to shout: ‘qarḍ ama!’ (snobbish; fake) at an effendi who walked funny because he was too self-conscious of his Western dress and his job with the government. The symbolism of colonial dress still haunts discourse on culture, authenticity, and identity. A Sudanese military leader, quoted by a journalist, called multi-party democracy as alien to Africa as a ‘threepiece suit in the desert’ (The New York Times 5 November 1991). In 1972, it was decided that diplomats should wear national dress—the jalabiyya, the turban, and cloak instead of Western suits. Diplomats were concerned that they would pay more attention to keeping the turban on their heads than attending to the diplomatic encounters at hand (al-Hasan 1996, 54). This attitude stemmed from an old bias that native dress is too cumbersome for modern work. On the popular level, Western dress still fuels native anger at the Western elite for hanging on to a colonial relic. Under the title, ‘Down with the Suit and Cravat,’ a reader wrote in a Sudan daily in 1991 asking leaders to wear clothes worn by their people.13 Wearing a suit in

13 In an authenticity drive, suits and neckties were banned during the reign of President Mobutu of Zaire/Congo in favor of a tunic-like outfit called abacost. The name is

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Sudan’s hot climate, he maintains, smacks of the failure of the elites to come to grips with the essential facts of the nature of the country. He reminds the ruling elites that even the British themselves took cognizance of Sudan’s weather and suited themselves to it by wearing shorts and shirts. He argues that in wearing one’s national dress in the manner of Gandhi and Mao Tse-Tung, one dignifies himself in the eyes of friends and foes. People would know that one meant business (al-Inqadh al-Watani 17 June 1991).14 In the same vein, a man claiming to be the awaited Mahdi gave a sermon in which he asked the military junta to scrap their military attire and put on the jalabiyya (al-Inqadh al-Watani 15 July 1991). The term ‘effendi’ refers to Sudanese with modern, secular education whom the government prepared for employment in the colonial administration. In turn, an effendi was symbolized by one’s mode of dress of suit, tie, and hat. Effendis thus contrasted with shaykhs such as qadis and teachers of Arabic and Islamic Subjects whose education, conducted mainly in the Arabic language, consisted totally or largely of Islamic theology, law, and the Arabic language. The officially sanctioned dress of the shaykhs was robes and turbans (Sharkey 1998: Vol. 2, 242; al-Tayyib 1994, 27). Most important, employment with the government or elsewhere was never an objective of their education as was the case with the effendi class. These titles, ‘effendi’ and ‘shaykh,’ became part of one’s name and were used in official as well as in native contexts (Sharkey 1998: Vol. 2, 243). Muhammad Ibrahim Abu Salim cogently describes the drama of this division between careers in government service in his short biography of al-Azhari (1901–1969), the first prime minister of the Sudan. Al-Azhari began his career as a shaykh at Gordon College. In 1927, he was sent on a scholarship to the American University in Beirut to study mathematics. When he returned in 1930, he took off the jibba and put on European dress. For teaching mathematics at the college, he was no longer addressed as ‘Shaykh Ismail’ but as ‘Ismail effendi’ (Al-Ayyam 2 January 1986).

derived from the French ‘a bas le costume’ or ‘down with the suit,’ which is held to be a relic of colonial times (The Washington Post 20 October 1991). 14 Interestingly the writer commended Omar Nur al-Dayim, a ferocious opponent of al-Bashir regime, which owned the very paper in which he published his criticism, for wearing national dress (al-Inqadh al-Watani 17 June 1991).

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Al-Azhari’s change of garb was anticipated by a poem recited on the farewell party thrown by his friends before he left for Beirut. Al-Azhari was sitting right in the middle of the court in his jibba and fez. A poet, ʿAbdalla ʿAbd al-Rahman, a proud teacher in his shaykh dress, looked at him and joked with the following lines: Lita shiʿri (I wish I knew): Would he return from Beirut leaving his caftan to gather dust? Is he going to fall for his Western suit or is he going to restore his colorful caftan? I implore you, ‘Revert to your original self—a shaykh with a floor-length cloak (Najila 1994: Vol. 1, 147).

Al-Azhari never returned to his jibba. His friends poked fun of him when he returned from his vacation clad in his Western suit (1994: Vol. 1, 146). Were the Shaykhs Comfortable in their ‘Floor-Length Cloak?’ A 1945 circular of the Grand Qadi, the head of the Sharia Division of the Judiciary, specified the qadis official dress as the jibba, caftan, the belt, and turban.15 Although it tolerated the traditional Sudanese turban as a replacement of the fez, the circular prohibited the European open overcoat. This dress discouraged urban, modern young men from choosing a qadi career for fear of being seen in this archaic dress. A case in point is the novice qadi who resigned in the early 1960s in less than three days after his appointment, and joined the Ministry of Local Administration.16 Also, a chemist, of college age in the late 1960s, was not pleased that his father had wanted him to be a qadi. Before waiting for him to object, his father said, ‘If you hate wearing the caftan, this is no longer an issue. Qadis can wear European suits nowadays.’

15 The dress code in today’s Judiciary is lax and based on personal preference. In 1991 while I was interviewing Qadi Najwa Kamal Farid, the first woman qadi in the country, she looked out of the window, and on seeing a qadi wearing a European suit, she changed the subject saying, ‘There is a qadi in a suit.’ Litigants, however, are confused by this laxity in the code. A woman litigant, who wanted to see a qadi, walked into a court where two judges were sitting. She went to the desk of the one wearing a jalabiyya. When they told her that the qadi was actually the other one wearing a European suit, she muttered, ‘No. I am not going to see an effendi.’ 16 Interview with Qadi Najwa Kamal Farid, Khartoum, May 1991.

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Qadi Majdhub Kamal al-Din, who bent over backwards to accommodate his father’s desire for him to be a qadi, saw the dress as bizarre. ‘We were young and wanted to wear European suits. Of all the pieces of the qadis’ dress, I was really scared to death at the prospect of wearing was the fez. Before appointment, our graduating class made a pact to resist wearing the fez. Luckily, we were not forced to wear it. They told us that the turban would do.’17 To add insult to injury some British officials took the qadis’ dress, whose origins in cultural subordination we have made clear in this chapter, as a sign of respect. R.C. Stanley-Baker, the last British Chief Justice of the Sudan, wrote about the time of self-rule in the Sudan (1953–1956) when civil judges were assigned an official dress of robes and barrister’s wigs. In professionalizing the job, the dress, he states, had at last invested civil judges ‘with some of the panoply of judicial dignity which our excellent Sharia courts had long since enjoyed’ (1991: Vol. 1, 77). Davies also points to the ‘touch of the ecclesiastic in his [the qadi] dignified bearing’ (1957, 33). But it is the same Davies who forcefully brings out the insufficiency of this ecclesiastic basis of dignity when push came to shove. In real terms, it is authority that counted. In wanting the attention of Davies, a District Commissioner, a Sudanese petitioner cried picturesquely, ‘The turban [native authority] will not ease me! The tarboush [fez, worn by junior Egyptians administrators in Sudan] will not ease me! I want the helmet [worn by British District Commissioners]’ (1957, 86). The Travails of the ‘Turabaned people’ The dress idioms accentuated the politics of shaykhs and effendis. The effendis, who have been writing the national grand narrative of independence, credit themselves for espousing the nationalist cause and resistance that led eventually to the birth of the country in 1956. In this narrative shaykhs are represented, unfairly most of the times, as collaborationist.18 The case for this accusation will be discussed in Chapter 5. Effendi nationalist therefore despairingly called the shaykhs

17

From an interview I had with him in Khartoum in May 1991. All other references to Qadi Kamal al-Din come from this interview. 18 For the qadis image of themselves as nationalist resisters of colonialism, see (RP, Port Sudan 1975: Vol. 3, 34–35; RP, Port Sudan 1975: Vol. 5, 42).

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the ‘turbaned people’19 in reference to their headdress, which did not belong to any national or fashionable style of clothing at the time (Najila 1994: Vol. 1, 114). Husayn Mansur, who was very critical of both the shaykhs and effendis for what he saw as their subservience to the colonialists, has the following biting line on the shaykhs’ garb of humiliation: I turn now to the turbaned and bearded ones, the wearers of the peacock garb They trace their jibba back to the Prophet, nay; it has always been the priest’s cloak Their turbans are blocks of brick and the beards are not exactly right The shaykhs’ waists are belted; if they walk or jog they look like a butterfly falling in the fires of Magus (adherents of Mazdaism) Curse them; nothing distinguishes their call for prayer from the tolling of church bells. (1939, 41).

These memorable lines were acknowledged by al-Tijani, a renowned poet of whom more will be said shortly, who praised Mansur, his mentor, for attacking relentlessly the clerics’ political redundancy and smashing ‘the pride of turbans.’ (1972, 81). Further, it is said that Abd al-Latif, the leader of the 1924 Revolution, hung a placard on a wall in his room that carried these lines: O Hind [An Arabic formula for the loved one] say or praise the one who says: The men of sharia are like goats, If only their beards were grass For the horses of the British rulers to graze (Najila 1994: Vol. 1, 214).

The Attire of their Discontent In writings of effendis about their life under the colonial era one is struck by their sense of inadequacy relative to their clothes and to shaykhs. Ahmad U. Humri, a teacher and a trade unionist, compares effendis and shaykhs at his school in the early 1950s in Atbara town. Although he was gratified for being called ‘shaykh’ by real shaykhs at school, he felt that it denied him his deserved status, being a different package of training and garb than the shaykhs were. He wore shorts, a shirt, long socks, jazma, and hat whereas a shaykh wore a jalabiyya,

19

For headdress symbolism, see Gaffney (1994).

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a turban, and markūb. He said he would wait for a pupil to come and call him ‘effendi’ to feel rehabilitated. The shaykhs and effendis were a world apart. Writing almost forty years after the fact, Humri tends to see the shaykhs as more culturally coherent than effendis. Hindsight may have played havoc with the original state of things. He sees them now as being dignified then with few words spoken quietly. They walked graciously in their jalabiyyas whose shining whiteness, he writes, blinded the eyes of a housefly. Effendis, on the other hand, are pictured by Humri as out of sync with the cultural rhythm and prescription of the teaching profession. They were many-worded men, Humri concludes. Their shorts ultimately lay bare their thin legs with their goat-like hair. When they realized that shorts had made them half what they were, they elongated them into pants. Unlike the agonized effendis, whose superficial rubbing with modern subjects such as geography and science made them arrogant and empty; the shaykhs are portrayed now as circumscribed and content then. Shaykhs, Humri says, did not even need to prepare for classes whereas effendis sweated over preparation the night before teaching a class. Books of teaching method and notebooks lay on their desks like the evening described by T.S. Eliot: When the evening is spread out against the sky like a patient etherized upon a table (al-Ayyam 20 December 1988).

Unlike shaykh teachers, the effendis, who increasingly wielded power in schools, were famous for subjecting students to oppressive punishments.20 Effendi wardens stood out for representing and executing the punishing regime of the school. Al-Tayyib suggests in very general terms that this regime of punishment may be explained in the light of an analysis of effendis’ alienation or psychology (1994 161, 187–188). He describes them as excessively cruel. They slapped, kicked, lashed with whips and pressed pencils between fingers until they almost broke (1994, 25). A teacher of English called the nearest student’s desk to his table the ‘slaughtering-house,’ for he had made students lean at it while being whipped (1994, 29). Power drove some of them crazy. Wild impulses caused some to kick the floor in a marching in place fashion and curse students in the most vulgar terms. To break an insolent student, some 20 A friend of mine told me about a popular aphorism at his school attributed to an effendi teacher. The teacher was reporting to his class about punishing his student Qamar al-Din Qaranbʿ and bragged by saying, ‘I gave Qamar ten lashes; his rida (shorts) went red.’

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effendi teachers would make it an economic war by attacking him and ripping his jalabiyya apart. A teacher once freaked out after beating a student who did not lose his cool. The teacher yelled: ‘I will dismiss you all.’ A prudent student said quietly: ‘The school will be empty.’ Another student carried this bizarre exchange to its logical conclusion: ‘And teachers will be idle.’ The teacher flooded out for not anticipating the harm he could have brought on himself by closing the school (1994, 25).

‘Eton’ of Sudan and al-Mahad The Manichaean conflict in identity of colonial education revolved around the prestigious, modern [Khartoum] Gordon College, that became the University of Khartoum in 1956, and the native, traditional Omdurman Mahad al-ʿIlmi, that became Omdurman Islamic University in 1965. The graduates of the two colleges are respectively known to each other as ‘Gordonites’ and ‘Mahadites.’ Gordon College was conceived by Kitchener, the leader of the AngloEgyptian army that crushed the Mahdist state in 1898, on the eve of the Battle of Omdurman (Beshir 1969, 38). This unique conception of an educational institution is resonantly captured in Rudyard Kipling’s ‘Kitchener’s School’ (1898). The poem is a translation of a song written by a Muslim Indian of Kitchener’s army who was touched by his leader’s call for his people to donate for the building of a college to honor Gordon Pasha of Khartoum. The school, according to the poem, was a product of the maddest of all mankind—the English: They terribly carpet the earth with dead, and before their cannon cool They walk unarmed by twos and threes to call the living to school (Kipling 1945, 203).

The college, sold to the Sudanese as ‘the army to make you wise’ (1945, 202) whose patron was Queen Victoria (Beshir 1969, 39), was opened in 1902. In contrast with the College, al-Mahad was the debris of the Mahdists ‘dead Emirs’ (Kipling 1945, 202). Distressed by the appeal of modern education that made fewer and fewer students go to al-Azhar of Egypt for Islamic studies, the Board of Ulema, appointed by the colonial administration in 1901, and other native notables approached the British

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to encourage students to seek education in al-Azhar to secure a flow of scholars conversant in their religion to teach it (Beshir 1969, 48). The administration was faced by the horns of a dilemma. It could not send students to Cairo for fear that they might be influenced by the burgeoning Egyptian nationalism. On the other hand, it could not provide the kind of education requested by the clerics at Gordon College whose expansion in Islamic studies would anger the ‘non-conformist and ultra conscience in England’ who had already protested the little meager Islamic education at the college. The compromise agreed to was to establish al-Mahad at the Omdurman mosque in which clerics would teach instead at their private residences. It was opened in 1912 and its supervision was given to the Legal Secretary of the GovernorGeneral. Bowing to modernity, the clerics introduced arithmetic, Arabic composition, and dictation into the purely theological curriculum of traditional education (1969, 48). Two advantages of Gordon College made education at al-Mahad unattractive to young Sudanese, namely, training students for government employment and living in hostels. The College was originally conceived as the machinery to nurture native clerks and artisans. In popular parlance, the college had been called al-tajhīzī (vocational, preparatory for government employment) (al-Tayyib 1994, 10). By tying education at Gordon College to employment, colonialism made it abundantly clear that rebellious students forfeited claims to a government job (Atiyah 1946, 145; Najila 1994, Vol. 2, 43, 90–91; al-Tayyib 1994, 89). In contrast, training in al-Mahad was not related to the needs of the government service. Although few graduates were employed in junior posts as teachers and court clerks, the remainder was supposed to make it on their own as preachers and teachers of their communities (Beshir 1969, 49). Those appointed in government service like ʿAbdalla al-Turabi, the qadi and the father of Hasan al-Turabi, whose Islamic movement we will discuss in Chapter 6, had to wait patiently until the government figured out what salary it should pay them. To a question from the financial Secretary about the pay scale fitting the qadis’ qualifications, the Assistant Director of Education replied that it was hard to tell because al-Mahad was not a government institution and he had not known the qadi personally to judge.21

21 NRO, Personnel 4A/7/16 (ʿAbdalla Dafaʿalla al-Turabi), from the Assistant Director of Education to the Financial Secretary, 14 April 1925.

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Colonialism abducted students to Gordon College, the ‘Eton of Sudan’ or the ‘Winchester by the Nile’ (Sharkey 1998: Vol. 1, 85), from their ‘mud age,’ characterized by buildings not constructed in stone or red brick (Davies 1957, 83). Students marveled at the spacious, nicely furnished rooms, they were astounded by the one hundred-seat dining room. The clean, elegant bathroom for everyone seduced them all. Lastly, they were thrilled by the fields of greenery and verdant trees, the flowers, and water that piped through faucets (Sharkey 1998: Vol. 1, 89). Unlike Gordon Collage students, al-Mahad students were all day students. Only 37 percent of them in 1935 came from Khartoum province and needed no accommodation. The rest had to find board and lodging with host families that generously and piously provided them. Even the call of the influential Graduates’ [of Gordon College] Congress in 1939 to provide government-supported lodging for al-Mahad students was not accepted by the colonial authority for a long time. When dorms were ultimately provided complaints about the quantity and quality of food and the health conditions of the buildings never ceased (Yahia Ibrahim 1987, 362–368). Living on religious philanthropy was socially offensive to the students of al-Mahad. This hurt was insightfully discussed by Muhammad Muhammad ʿAli, a graduate of the al-Mahad, a poet, and scholar. The conservatism of the majority of these young men, he argues, is in part attributable to these living arrangements. To conform to the lifestyle of his host family, a student of al-Mahad had to wear a mask of propriety every hour of the day. He did not want to do anything that would embarrass his host in front of neighbors. To live up to the behavior expected of a future cleric, he would walk with his eyes directed to the ground for fear of looking at a face of an unrelated woman. Al-Mahad students were therefore denied the sense of individualism that hostel and urban living imparted to Gordon College students (ʿAli n.d., 21). Students were rebuffed by the kind of life and career waiting for them on joining al-Mahad. They would only go to it kicking and screaming except for those who came from families whose long commitment to religious scholarship and Sufism made them choose this seminary for their sons. A veteran politician wrote that he did not like the education he had been getting in al-Mahad, and escaped to government school, and then to Gordon College (al-Khalifa 1988: Vol. 1, 430–431). A prominent poet was not as lucky. He had always wanted to enter modern schools, but his religious family wanted him to go to al-Mahad (ʿAli n.d., 3).

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In being so patronized by the British, the Gordonites evoked the envy of the Mahadites. A poet and a teacher at al-Mahad, called them the ‘Misters’ Ansar (followers; lackeys)’ (Mansur 1939, 23, 39), or ‘ḥ izb al-Firnja’ (the Party for the Europeans) (1939, 23). He chastised them for wearing Western suits and talking their master’s tongue. He hated their unnecessary habit of language switching back and forth between Arabic and English. Drawing on a line from an old Arabic poem, the poet likened English and Arabic to two swords, and asked if putting them in one sheath was not a wrong-headed idea (1939, 123). This hybrid language, the ‘Misters’ Party’ spoke, sounded to the poet like the bleat of a billy goat (1939, 41). The isolation of the effendis from the generality of the population for this language custom will be discussed in Chapter 6 in connection with the Islamic renewal of al-Turabi. The poet reserved his most uncompromising and scathing criticisms to the Gordonites’ lifestyle under the British. Allegations of homosexuality at the college were rife. This deterred many a Sudanese from sending their sons to college. Arguably, these allegations might have been blown out by the cultural war going on between colonialism and religious nationalism in the country. The allegation, however, originated from within the college and had been an underlying factor in the student activism of Muddathir al-Bushi, a qadi student in the early twenties and the Minister of Justice in the first Sudanese cabinet in 1954 (Ibrahim 1992; Institute of African and Asian Studies 1974, 2, 64–116; Najila 1994: Vol. 1, 112–114).22 Picking up this extremely dubious mixing of body, the Mahadite envious poet called the Gordonites the ʿgharth ‘(progeny of)23 [N.R.] Udal,’ the director of Gordon College from 1906 to 1930 (Mansur 1939, 69). Their image in his poetry, with

22 For an intriguing story surrounding an accusation of homosexuality see Bedri (1961: Vol. 2, 214–215). 23 S. Hillelson of the Intelligence Department recited a poem in colloquial Arabic (of which he claimed to be an authority (Hillelson 1935)) on the farewell party of Udal organized by the graduates of Gordon College in 1930. He used a popular metaphor of ‘sowing a fertile seed’ to praise Udal’s productive work at the school (SAD, 780/7/40–41, Hillelson’s folk poem recited at the farewell party in the Omdurman Graduates’ Club, March 8, 1930). The poem stirred an interesting controversy in Rufaa town. In the poem, the poet, picking up a formulaic expression used in Sudanese folk creations, asks the girls of this town to weep after the departing Udal. The city people who read the published version were affronted by this public scrutiny of their womenfolk. The colonial poet sent his apologies with Babiker Bedri to the townspeople (Bedri 1961: Vol. 3, 30).

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their chubby cheeks, soft arms and tender lips, is that of a sassy, immoral group. Yet he never left it to rest there. The college is portrayed rather as the den of all debauchery and perversion. Students, Udal’s progeny, sprouted and watered by ‘men’s semen’ and lentil soup (1939, 69):24 Students, he was told, lay face-down wiggling all night like a bride on her first night (1939, 41). For the Gordonites, al-Mahad was basically a bad idea running counter to modernity. A Gordonite remembers the time he spent in the early thirties with Mahadite relatives and friends on weekends from college. In these meetings, he discussed with the discomfited Mahadites the contempt college students had held them in. In their espousal of both modernity and nationalism, the Gordonites believed that al-Mahad, confined to the teaching of religion and Arabic as it were, had been a colonial plot to deny the Sudanese access to science which is at the heart of power and intelligence in the modern world (al-Khalifa 1991, 59). In other words, the Gordonites were critical of al-Mahad graduates whose conservatism had disqualified them from contributing positively and actively to the life of the country (Beshir 1969, 153). Rote Memorization and Imagination Studying techniques were also divided into the modern style of understanding a text and the native kab (lit. pouring a liquid into a vessel) of committing it to heart. Officials at Gordon Memorial College tried to restructure students’ thought by stressing imagination rather than rote memorization learning. Kab, traditionally cherished for memorizing Qur’an, was dismissed as too mechanical and archaic for a modern student. Shaming each other for kab became a part of the taunting culture at college (al-Tayyib 1994, 237). Rather than Anglicizing students through forms of dress and food, the British impact was so much in reconfiguring their ‘intellectual and social worlds’ (Sharkey 1998:

24 The first patch of students at Gordon College, consisting mostly of boys from rural areas, protested the new menu of bread and butter, and the use of knives and forks. They led the first strike in the college to make it conform to local food and eating habits. Bowing to the students’ pressure, the college hired women to cook Sudanese meals. The change did not work, and a compromise was reached. Lentil porridge and fava beans, presumably borrowed from Egyptian urban or military cuisine, were cooked for breakfast. Stew and rice were served at supper. Knives and forks were reintroduced as tools of civilized eating in Kitchener Medical School when it opened in 1923. Their use marked these medical students off as a separate and higher breed of the colonized (al-Tayyib 1994, 12–13).

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Vol. 1, 112). The restructuring stressed ‘imagination rather than rote memorization in learning’ (1998: Vol. 1, 111). Unlike kab, studying a text was promoted by teachers in debating societies that helped students develop skills of making argument in their future career as nationalists (1998: Vol. 1, 101–102). Al-Tijani Yusuf Bashir: Too Good for the Natives The ways people were disfigured by, or smuggled across, the colonial Manichaean divide is intriguing. In the radio interviews with al-Bashir alluded to at the beginning of this chapter, we devoted a lot of time to al-Tijani Y. Bashir, a poet who lived between 1910 and 1937. The reason we spent so much time on him was not only because al-Tijani is an essential Sudanese, Romantic poet, but also because he, like alBashir, was a product of the traditional system of education culminating in al-Mahad.25 The unrelenting, Manichaean universe of the colonial education made a mockery of itself when the Graduates’ Club of government school refused to commemorate the death of al-Tijani because he belonged to the ‘other’ education system (al-Badawi 1980, 24). In his poetry, al-Tijani exhibits prodigious loyalties to creativity, youth, and poverty. However, poverty was a real thing for al-Tijani who died prematurely of tuberculosis. A contemporary of al-Tijani described him as emaciated and sickly, ‘wearing a Bata (cloth) shoe without strings, a jalabiyya of the cheap damūriyya fabric that was torn in numerous places, and a turban without a skullcap’ (1980, 30). 26 Today’s Sudanese would be insulted by such a description of their national, talented poet. Their canonized image of the poet is derived from the picture that was published in his only collection of poems, Ishrāqa, which ran in more than ten editions since its first publication in 1946. In this picture al-Tijani appears in a typical studio backdrop of drapes wearing a European three-piece suit. The politics of changing the poet’s garb was uncovered in the interview I had had with al-Bashir as indicated earlier. In his appraisal of Tijani’s life, education, and poetry, al-Bashir said once in the program, ‘The picture we have of al-Tijani is a fake. Those who published his

25

For a lucid introduction to the life and poetry of al-Tijani in English see, Salma K. Jayyusi (1987, 65–67). 26 The picture painted by another contemporary of al-Tijani is basically the same (ʿAbd al-Qadir n.d., 56).

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poetry in Cairo tailored the picture for a modern, Egyptian audience and dressed him in the European suit. Al-Tijani just could not have afforded this luxury. In taking off his jalabiyya, they wanted him to look credible and of his times.’ For a jalabiyya-wearing, al-Mahad-graduate such as al-Bashir this national acquiescence on the image of al-Tijani is offensive. It brings to a head al-Bashir’s predicament and anonymity as the one born to disorder. For in the rare cases one of his rank made it, the enabling other had to ‘striptease’ him first and dress him in the regalia and fashion of power. What made their mission easy was that al-Mahad had officially denounced al-Tijani as an apostate for his unsettling use of language in comparisons between Qur’an and the gems of Arabic literature (alBadawi 1980, 25–30). Hurt, he wrote a poem claiming his al-Mahad identity forcefully and generously (al-Tijani 1972, 77–78). A critic, a Mahadite, suggests that al-Tijani was perhaps an accomplice in his cooptation by the Gordonites. The critic points to a double standard in al-Tijani’s cultural theory: whereas he blamed poets for not being thoroughly versed in the Arabic literary heritage, he, with no knowledge of any European language, was satisfied with the few fragments of the literary canons that were translated into Arabic. The critic saw this as unbecoming particularly from al-Tijani who argues, ‘It is the West that focuses our poetical energies.’ This vulnerability to the West, the critic states, is something that the poet perhaps contracted from his Gordonite friends (al-Badawi 1980, 123–124). The Gordonites, however, found it important for some reason to explain why they had had al-Tijani in their midst. Al-Fajr (The Dawn), their celebrated mouthpiece of the 1930s, wrote in 1937, ‘Al-Fajr aims at cultural renewal predicated on Sudanese authenticity. Although a graduate of the old and ancient al-Mahad, al-Tijani is unique, and found al-Fajr culturally inclined the way he is inclined, and gets along terrifically with the group behind the magazine even without being an original member of it’ (1980, 63). The Pepsi Cola of Modernity The Manichaean geography took a radical turn in the context of the virulent students politics in its formative years in the 1950s. In the Gordonite context of Gordon College and other government high schools, a student was seen as either modern, a category comprising

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the communists and independents, or ‘native’ as represented by the Muslim Brotherhood. For being perceived as raw bumpkins, Muslim Brothers were pejoratively called kayzān (pl. of koz, the rural word for ‘cup.’ Urban people call it ‘kubāya’) and the name stuck with them to the present.27 For being suspected as soft and hesitant on issues of political confrontation with colonialism, independent students were called ‘Pepsi Cola’ suggesting perhaps that they were as flaky and trendy as the newly introduced American beverage. Obviously, it was the dominant communists who were calling the shot in this labeling.28 In wearing their colonial urban youth on their sleeves, espousing the most dangerous ideas and indulging in the most hazardous health habit of smoking and drinking, the communists posed as the most consistent advocates of modernity. The semantics of the nickname ‘kayzān’ did not become clear to me until later on in the context of a fieldwork I conducted among a farming community in 1984.29 In the village store, a farmer told a story in which he said he had drunk water from a koz (singular of ‘kayzān’). The shopkeeper, who was not present when the story was told, did not like the farmer’s choice of words when he was briefed of what had transpired. The storeowner thought the farmer’s words, addressed to a visiting urbanite university professor, showed poor taste. He later asked me: ‘Did the farmer say he had drunk water from a koz?’ ‘He did.’ ‘Idiot!’ ‘What is wrong with koz?’ ‘He should have said kubāya.’ ‘Kubāya, koz, they are the same. Why bother?’ ‘Koz is rustic, vulgar. Such idiocy makes us look off beat.’

27

In classical usage kūb and kūz (of Persian origin) are both earthenware for drinking, but the latter has a handle whereas the former has not. 28 The communists and their allies were adamantly against granting college freshmen, who used to come largely from rural areas, the right to vote in the union elections of the students of the University of Khartoum as late as 1965 (al-Mithaq al-Islami 18 September 1965, Osamn 1989, 253). The communists wanted these students to experience life in the capital city before voting allegedly blindly and conservatively to the Muslim Brothers. 29 In a lecture I gave in May 1998 to the Sudanese community in Chicago, a woman traced the name, kayzān, to Hasan al-Banna, the founder of the Egyptian Muslim Brotherhood. He is said, according to the woman, to have described Islam as a river and his Brotherhood as the ‘kayzān’ of God.

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In their traditional, rural piety, the Muslim Brothers focused in their formative years on moral issues arising from the life in the dorms in a totally emerging setting of colonial modernity. City boys hated them. As a high school kid in the late 1950s, President Nimerie, who established the most scandalous moralistic state three decades later, could not stand the Muslim Brothers. He came to blows with them on a number of occasions. Their asking students not to wear shorts while playing soccer particularly affronted him. ‘They wanted us to wear sharia shorts, I guess.’ He remembered also the time they objected to the holding of a party in which singing had been scheduled (Fawzi 1991, 56). Not even al-Turabi, the future leader of the Brotherhood, joined the Muslim Brothers during his high school. He says in an interview I had with him in 1996 that he saw them then as anachronistic for not grappling with the broader issues of a subjugated Islam. The traditional forms of piety of the Muslim Brotherhood turned him off. Its depreciation of the emancipation of women and art, he later commented, was informed by either patriarchal impulses or strict pieties that are harmful to Islam (Ibrahim 1994, 8). Since his rise to a position of leadership in 1964, al-Turabi has transformed the kayzān movement into a modern movement envied by the modernist camp. We will discuss al-Turabi’s theology of modernity and the ingenious ways it rehabilitated the rustic kayzān in Chapter 6. This World and the Other World Overpowered by an infidel colonizer, Muslim Sudanese saw the world as comprising two domains—the material and the spiritual. The material, where the West had proved its superiority, included the economy, statecraft, science, and technology. The spiritual, on the other hand, is an ‘inner domain bearing the essential marks of cultural identity’ personal piety, and freedom (Chatterjee 1993, 6). For Muslim Sudanese, the material world, this world, was the paradise of the British unbelievers. Paradise for Muslims, they contend, is the other world for which they needed to prepare spiritually. ‘My mission is to raze this world and enrich the other world,’ of the Sudanese Mahdi is typically quoted in contexts of comparing the wealth of the West and the poverty of Muslims (al-Tayyib 1994, 186). The coming of the British had tipped the balance for the adoration of this world—a world popularly described as ultimately ending in

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one being buried under a ‘pile of dirt.’ Colonial education designed to produce government clerks and artisans was seen as too functional to compare with Qur’anic education that prepares one for the other world. Al-Tayyib remembers from his college days how his folks, in distrust of the Western education at the college, inordinately focused on employment after graduation. He quotes the following lines to underline the ‘preparatory, vocational’ function of the college as perhaps rightly conceived by the public: ‘Son! When is the government going to employ you?’ ‘Son! Do you really think what you study at the college contains ʿilim (originally religion, but translated now as “science”)?’ ‘School education lacks ʿilim and the Qur’an. It is something for this world’ (al-Tayyib 1994 18, 62).

The distinction between knowledge for piety sake and knowledge for a paycheck looms large in the literature. Al-Majdhub, a relative of alTayyib and a great poet, wrote to a British woman he was crazy about that his religious family had wanted him to become a religious scholar ‘but I mutinied. I worked as an accountant to earn a living and gain my personal freedom. My ancestors’ plan for me was to dissolve in the image of God . . . I wanted to dissolve in the unforgiving beauty of your soul’ (Abu Sin 1997: Vol. 1, 196). Love of this life was regarded as colonial and ultimately the greatest delusion of the unbelievers. For being too good to them, unbelievers think this world is eternal. Sudanese who went through government education were suspected of contracting the love of this life. Well-endowed dorms and comfortable jobs at the end of the day were, in al-Tayyib’s words leaning on Shakespeare, the ogre’s food that killed the vigor of hearts and the pride of souls.30 Not even nationalism was a guarantee against the insidious effects of this food. For we revolted against colonialism, argues al-Tayyib, out of desire to inherit its love of this world and to inherit the means of this love (1994, 186–188).

30 Leaning still on Shakespeare, al-Tayyib argues that the change in colonial policy from suppression to looking after the alleged welfare of the colonized is merely, quoting Shakespeare, the ‘Great nature’s second course.’ The colonized was made in the image of the colonized by these various colonial handouts (1994, 208).

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Arabic and Islamic Subjects teachers refer to teachers of English, mathematics, history, etc., as the teachers of ‘other’ or ‘modern subjects.’ Their phrasing reflected the gross structure of inequality by which the government separated teachers into two categories of ‘traditional’ (Arabic and Islamic Subjects) and modern subjects. The government gave modern teachers high salaries, better benefits, and brighter prospects for promotion. All teachers with college degrees, including graduates of Islamic and Arabic institutions, were appointed in class ‘Q’ of the government scale of payment. Whereas teachers of other subjects were promoted to class ‘D.S.’ after four years of service, teachers of Arabic and Islamic Subjects took ten years or more to be promoted. This disparity in promotion between the two categories of teachers applied all the way up the scale. The statistics of this disparity revealed in 1974, as a result of union action applied by the teachers of Arabic and Islamic Subjects, were scandalous. In that year the government found that there had been 587 teachers of Arabic and Islamic Subjects in class ‘D.S.’ who were promoted to it in the period 1966–1971. None of the teachers of other subjects, who had been promoted to D.S. as late as 1971, remained in this scale for all had moved to the next niche.31 To add insult to injury Arabic and Islamic Subjects teachers were frozen for life at class ‘B.’ Even after the unrelenting struggle waged by them (1974–1981) for parity with teachers of other subjects, they only made it to ‘Group Three.’ They were debarred until the early 1990s from promotion to ‘Group Two’ and ‘One,’ regular or super, the peaks of the government scale, which were exclusively occupied by teachers of other subjects. I was particularly interested in al-Bashir’s views on the historical roots of the disparity in the terms of service between the teachers of ‘modern’ subjects and those of Arabic and Islamic Subjects. I believe the way these inequalities were presented to the government negotiators and the public owed considerably to al-Bashir as the spokesman of the Association of Teachers of Arabic and Islamic Subjects, and the

31 From the Association of Teachers of Arabic and Islamic Subjects to members of the Constituent Assembly, May 8, 1978. The author of this book possesses a copy of the file containing the different correspondences the Association sent or received about this episode of its fight for equality with teachers of other subjects. The late al-Bashir was kind enough to allow me photocopy the originals that he had dearly preserved.

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script-writer of its statements and tracts.32 In the interview I asked him to account for the origins of these inequities in government service between the two categories of teachers: This is a formidable question and requires elaboration and discernment. These inequities stem from the conflict of culture taking place in the Arab world under the impact of the West. In short, Egypt, for example, was one of the first Arab countries to experience this impact represented by the French occupation and culture. Muhammad Ali, the Viceroy of Egypt, was enchanted by the French sciences and power especially in weaponry. He looked for their example and support to fulfill his ambition in building a strong state in Egypt. The French were ready to provide him with their sciences by establishing modern schools. Their only condition was that the Egyptian government should stop spending on the traditional school system that began with Qur’anic school in villages all the way up to al-Azhar Mosque in Cairo. The French even asked that al-Azhar be closed forever. Considering the political repercussions of such a risky step as closing al-Azhar, the French ultimately agreed that the government should terminate its patronage and stop subsidizing it. Muhammad Ali was advised by his counselors not to touch al-Azhar. Instead, the government committed itself to favor modern schools in appointments for government service. As a consequence, people flocked to the modern school and al-Azhar got just a trickle of students. Colonialism in the Sudan was wary of Islamic culture in that it had mobilized the Sudanese in the form of the Mahdist revolution to overthrow the Turkish regime in 1881. When the British re-conquered the Sudan in 1898, they were determined to eradicate Islam, and their steamers shelled the Mahdi’s tomb to get this message across. Kitchener, the commander of the invading army, visited the ruins of Gordon’s Palace and prayed to his soul. Further, Kitchener decided to commemorate Gordon’s martyrdom by building a college carrying his name. The British generously donated to the building of the college when Kitchener appealed to them to do so. What we are talking about here is colonialism. It did not come from across the oceans incurring financial expenses and military risks to spread Arabic or enhance Islam in the Sudan. Colonialism was a project for spreading the language and culture of the colonizer. The British established their modern schools and promoted them by linking them to employment in government departments. No khalwa graduate was considered for government service. Naturally khalwas were deserted because they did not

32 See their letter to the leaders of public opinion on January 19, 1980 calling for the formation of a national committee to address the grievances of the teachers of Arabic. In taking their case away from the state bureaucracy, the Arabic and religion teachers wanted their grievances to be addressed in the wider context of the termination of the colonial legacy.

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chapter one lead to the lucrative jobs in the government. Those who graduated from Gordon College got a government job, the jāh (authority), and the social status that went with it. A graduate of khalwa was debarred from government service and had but farming to fall back upon. I know people who memorize the Qur’an in its entirety and ended up working for the railway department as signalmen, gardeners, and in other menial jobs. In the 1930s, the colonialists completed structuring their educational policy in ways that deepened their domination through education. They made the objective of education the training of clerks for government service. Nothing was ever said about educating people to be good citizens. School curricula included arithmetic, geography, and, in the first place, they introduced English language as the stepping-stone to government service. They established a teacher’s college and defined the teacher as the graduate of a government school. A teacher is therefore required by definition to know English. A graduate of a khalwa or al-Mahad could work as a teacher if need arose. However, his terms of service would be laid out separately. If they’d had it their way, the British would have simply done without Arabic and Islamic Subjects in their modern schools. They were only deterred from eliminating these subjects from the curriculum for fear that the people would be affronted and revolt against the government. Instead, they produced textbooks for Arabic and Islamic studies whose educational basis were faulty. The textbooks did not develop the subject in the student’s mind and were distracting and confusing. As a consequence, Arabic became notorious for being a difficult language to students who spoke it years before coming to school. Arabic is a very easy language to learn because Arab grammarians worked hard to clarify its structures and paradigms. Our teachers in al-Mahad used to tell us, ‘Don’t be intimidated by grammar. Grammar is a lamb in the attire of a lion.’ Likewise, Islam was the religion of the students, but the textbooks alienated them from it. Graduates of traditional institutions of education were appointed as second-class teachers. Their terms of service were ad hoc and humiliating. In offering such terms of services to graduates of traditional education, the British wanted to impress on the Sudanese that Arabic and Islam were irrelevant to life as they created it, the life of government jobs. If you did not know English, O Mawlāna (a form of address of Muslim scholars and clerics), you would have never been appointed in the government service. Even if you knew the languages of the whole world, from Italian to German to Russian, you still would be denied a job in the government of the Sudan. However, the Muslim Sudanese were not afraid to send their sons to traditional learning institutions. As good Muslims they valued life more than success in government service. In 1912, Muslim scholars, who each had had their own circle of students before, established al-Mahad. They decided to come together and teach jointly at Omdurman Mosque. The colonial government encouraged them to open al-Mahad in order to have them in one place for easier surveillance. The first cohort of al-Mahad

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graduated in 1924, and among them, by the way, was ʿAbdalla al-Turabi, the father of Hasan, the leader of the Muslim Brothers movement.

The Wages of Tradition, Part 1 Between 1974 and 1981 the teachers of Arabic and Islamic Subjects, who belonged to the National Teachers’ Trade Union, formed their own Association of Teachers of Arabic and Islamic Subjects. As part of the Teachers’ Union movement, or independently, the Association engaged in an educational, professional, and political movement to achieve parity with other teachers This movement was so disciplined, politically resourceful, and focused that people were astounded to see these shaykhs, who came very late to this kind of mass action, mastering the modern game of trade unionism. The religious and Arabist rhetoric of President Nimerie’s regime (1969–1985) was repeatedly quoted by the Association to underline the isolation of the state bureaucracy from the ideas of the President.33 Even Nimerie’s socialism was employed by the Association to unmask the injustices in the terms of service of its members; injustices that flew in the face of the principles of socialism.34 To the public the Association rightly traced the plight of its membership to the colonial legacy. Arabic and Islamic Subjects teachers represented their conditions of service as ẓulum (grievance). We have seen how they traced their grievance to the colonial legacy. What made this grievance especially intolerable, in al-Bashir’s view, was that these teachers belonged to elite families in the local Sudanese communities and hence found it painful to be discriminated against. In one of their statements they characterized their grievance as a ‘sad tragedy,’ (al-Ayyam 8 February1980) not even translating the Western term into Arabic. The unity and solidarity they showed in pursuing parity with teachers of other subjects stemmed from their impatience with what they described as ‘inequity and contempt.’

33 From the Association of the Teachers of Arabic and Islamic Subjects to the General Secretary of the Professional Organizations of the Sudan Socialist Union (President Nimerie’s ruling and single party), December 20, 1979. One ‘Citizen’ sent a letter to Nimerie in which he reproduced all the President’s Arabism and Islamic rhetoric in defense of the claims of the teachers of Arabic and Islamic Subjects. The letter was sent to the Association for the record by al-Bashir Ibrahim Bashir who was perhaps the writer of the letter and a teacher of Arabic or Islamic religion. A duplicate copy of the letter, dated September 24, 1979, is deposited in the file of the Association. 34 A letter from the Association of Teachers of Arabic and Islamic Subjects to the Minister of Education, July 25, 1977.

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For inequity they used the strong and rather esoteric Arabic ḍaym, perhaps to register their anger/pride.35 Of all the discourses about the grievances of these teachers, al-Bashir remembered clearly how one teacher, in his pastoral idiom of egalitarianism, clamored for equality with other teachers saying, ‘We want to be like the two horns of a cow, they go up together and together they go down.’ What the teachers of Arabic and Islamic Subjects identified as ẓulum, the bureaucracies of the Ministry of Education and the Teachers’ Union, dominated by teachers of other subjects, earmarked as mushkila (problem), that is, a nuisance. This ẓulum was too graphic and humiliating for either the bureaucracy of the Ministry of Education or the Teachers’ Union to ignore or condone. But instead of addressing the root causes of these grievances, the bureaucracy of the Ministry resorted to periodic promotions to alleviate the most glaring injustices. Such delay tactics were welcomed by the Teachers’ Union as the most that could be done in the circumstances. When the Association of Teachers of Arabic and Islamic Subjects refused to accept these selective promotions, the Teachers’ Unions accused it of being uncompromising and very difficult to satisfy. In regarding the Arabic and Islamic Subjects teachers’ grievances as a ‘problem,’ the Teachers’ Union turned a major national and professional issue into a domestic feud. Al-Bashir recalled with bitterness how the High school Teachers’ Union portrayed their drive for parity as infringing on the rights and privileges of teachers of other subjects. Teachers of other subjects, according to al-Bashir, suffered also from ẓulum, and they had to face it fairly and squarely. In insulating them from coping with the claims of parity advanced by fellow teachers, the Union was doing them a disservice, turning them into squeamish ‘haves’ while they were ‘have-nots’ in real terms. The ẓulum (grievance) and mushkila (problem) approaches to the terms of service of Arabic and Islamic Subjects teachers are two diametrically opposite ways of looking at the colonial legacy. These injustices suffered by the teachers are rooted in a colonial culture according to which old or archaic subjects (Arabic and Islamic studies) are posed as the antithesis of modern subjects, such as English, which are naturalized as constructed values (Ashcroft 1989, 3). The Association

35 From the Association of Teachers of Arabic and Islamic Subjects to the Members of the Constituent Assembly, May 27, 1978.

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was, in David L. Kirp’s words, ‘wise enough to realize that what was called’ its ‘problem’ is really its ‘identity’ (1997, 31). By identifying the grievance of the teachers of Arabic and Islamic Subjects as a problem, whose solution would be feasible within the status quo, teachers of other subjects refused to question this colonial construct. Apparently it is beyond a human being, as a product of a hierarchy, to trace any of his privileges except to a natural order of things even if this order is undeniably colonial. On the other hand, teachers of Arabic and Islamic Subjects directed heavy fire at this colonial construct. Their barrage hit English, as a constructed value, either directly or indirectly. In aiming directly at English they demanded the abolition of the ten degrees given for knowledge of English (and other European languages by extension) in considering promotion.36 Furthermore, they demanded to be sent on government scholarships to obtain higher degrees. Their illiteracy in English previously denied them this right enjoyed by teachers of other subjects. Between ten to twelve degrees were given to teachers holding graduate degrees in consideration for promotion. Teachers of Arabic and Islamic Subjects were also precluded, for not knowing English, from being appointed as cultural attaches in Sudanese embassies.37 They demanded to be allowed to represent the Sudan in this capacity in Arabic-speaking countries. Sharia Court: A Court of a Lesser God A dominant, modern Civil Division and a subordinate Sharia Division represented the Manichaean set-up in the administration of justice during the colonial period. The latter originated in the government’s declared policy of non-interference in the religious affairs of the Sudanese Muslims. The Civil Division was manned by British magistrates, headed by a Chief Justice, and applied an English-based civil law and a

36 Although the career predicament of these teachers was largely due to their ignorance of English, they did not pretend to be at war with the language. Al-Bashir summed up their position in the interviews I had with him in the late 1980s when he said, ‘We would, of course, like our students to learn English. But the English they should acquire is the English of culture not the one they employ solely to scramble up the scales of job promotions.’ 37 A statement from the Association of Teachers and Islamic Subjects to its members, January 14, 1981.

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criminal code derived from the Indian Penal Code. The Islamic Court Division was established under the Mohammedan Law Courts Ordinance of 1902. Its courts were endowed with the power of applying Islamic law in cases of personal status involving Muslims.38 The Islamic court system was the only administrative space where the British tolerated Egyptians, the co-domino in Sudanese government. Egyptian judges had always headed the system as Grand Qadis under the supervision of the British Legal Secretary to the Governor-General. The post of the Grand Qadi was ‘Sudanized’ in 1947 being the first leading administrative position given to a national before the implementation of the policy of self-rule in 1954 and, finally, independence in 1956. The sharia court inspectors and provincial qadis were also Egyptians during the formative period of the system. However, the Qadi School was opened in Gordon College in 1904 to provide Sudanese qadis to replace the Egyptians. In 1912, twelve of the district qadis and twentytwo assistant qadis were graduates of Gordon College. Having relegated Islam to a ‘customary law,’ (Khalafalla 1981, 141) colonial judicial, educational, and personnel policies cast the Sharia Division as the primitive other of the modern Civil Division. As late as the 1970s, Fluehr-Lobban, a sensitive student of the qadis, has pointed out the Manichaean politics of the split judiciary. Civil judges, she says, conveyed a sense of superiority for their commercial and criminal concerns are ‘modern’ in contrast to the archaic and domestic jurisdiction of the qadis. The terms and conditions of work in the Judiciary were made to reflect this cultural disparity. Traditionally, the Civil Division was the larger and the more prestigious representing 517 of 782 judges employed by the Sudan government in the early 1970s. The qadis were not only inferior in numbers (250 of them) ‘they were paid less and believed their jobs to be of lower status socially than the civil judges’ (Fluehr-Lobban 1987, 73).

38 However, this limitation of the competence of courts was challenged as early as 1904 by the Grand Qadi [the chief of the Sharia Division of the Judiciary. More of this post will come later] who suggested that transactions in land should be included in the jurisdiction of sharia courts. But the government declined to expand jurisdiction as requested (Warburg 1970, 131). However, qadis continued to play a significant role in land settlement and registration.

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The Wages of Tradition, Part 2 The disparity in salaries between civil judges and qadis were so glaring that the qadis had to wage a persistent union action between 1956 and 1987 to gain parity with their civil counterparts.39 Although all students spent the same number of years at college in 1936, those who graduated as civil judges and engineers got a higher salary than their compatriots including the qadis. As late as the early 1960s a first class civil magistrate was paid 804 Sudanese pounds annual salary compared to the 669 pounds paid to the first class qadi.40 When equal pay in the Judiciary was instituted in 1966, as we will describe in Chapter 3, it was specifically announced in the papers that the salary of the first class qadi would specifically have a raise of 300 Sudanese pounds (alMithaq al-Islami 18 June 1966).41 Just as teachers of Arabic and Islamic Subjects, qadis’ promotions were frustratingly slow-paced. With the proliferation of civil courts after 1951, the chances of civil judges of getting quick promotions increased in comparison to the chances of qadis. It was not unknown that a qadi would remain as an assistant magistrate for almost ten years before retirement or death would cause vacancies to be filled up the ladder. A qadi of an older generation was astounded to learn that it took a first class qadi only six years to reach his position.42 In being more sympathetic in allowing qadis to work after retirement, the qadi administration did not help easing the promotion of junior judges.

39 The civil/qadi conflict was so pervasive that even the clerks and workers of the two institutions got involved in it. In preparation for the integration of the Judiciary in 1972, a court registrar of the Civil Division, who was fired in 1990, said that clerks of the qadi section rushed to advance themselves in order to have an edge over the clerks of the Civil Division in future promotions in the unified judiciary. In the process, they would fake credentials for their own people. A messenger, for example, would be given an ‘A’ grade for knowing English contrary even to the description of the job (Nur al-Din al-Amin, personal communication May, 1991). His reference to faking knowledge of English, an important consideration for promotion in the Sudan Civil Service, should be read into the polemics of the two courts. 40 Qadi ʿAbdalla Muhammad Dafaʿallah, personal communication, August 1997. 41 Qadis’ salaries were reported as being less than those of the civil judges as late as the early 1970s when Fluehr-Lobban did her fieldwork among qadis (1987, 73). 42 Qadi Dafaʿalla, personal communication, August 1997.

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A Toothless Court Fluehr-Lobban has usefully described the sharia court as the less intimidating of the two courts of the Judiciary. The hierarchy of the two legal systems was graphically articulated down to court buildings. Qadis’ courts were housed in shabby buildings ‘separate from the busier, better-endowed civil courts’ (Fluehr-Lobban 1987, 70, 73–74). The Court Complex of Omdurman town was not designed to house the sharia court. On enquiring, qadis were told, ‘Sorry, we just did not have a space for you.’43 To strip the Muslim judges of any semblance of power, police and prison wardens, as stated earlier, were instructed not to salute them as they did to civil judges and town clerks. The court was open to contempt because until 1966 it had been denied the power to give prison sentences. This unassuming court tempted some effendi litigants and witnesses to slight it by haughtiness or not appearing before it. Effendis tried their power tricks on qadis. FluehrLobban saw a government bureaucrat chastised by a qadi ‘for trying to speak in a form of the language that was above those present in an effort to impress the court’ (1987, 72). She also narrates the story of the bank employee witness who refused to respond to repeated summons from a qadi. Affronted, the qadi sent a police officer to bring him. When he showed up, the qadi lectured him on the duty of the educated to respect the law for the public to follow suit. Conscious of the cultural prejudices that caused the effendi witness to disregard the court’s summons, the qadi switched from Arabic to English and said: ‘You know you can be sent to prison for this offence, but you are lucky, I am just going to fine you.’ Humiliated in his idiom of power, the effendi ‘adopted a very penitent attitude’. To further discipline the haughty witness for his contempt of court, the qadi ordered him ‘returned to his office by police escort’ (1987, 73). Further, the sharia court was intimate to litigants in ways the civil court was not. Unlike the civil court where English or a mixture of Arabic and English were used, the sharia court deliberated in Arabic and its domestic and Islamic ‘jargon’ was part of common culture (1987, 71). In terms of dress, the majority of qadis increasingly relinquished their ‘monkish’ dress and began wearing the traditional dress of Sudanese

43

From an interview with Qadi Kamal al-Din, May, 1991.

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men (1987, 65).44 In non-Arabic speaking regions courts appointed official interpreters. Local courts were earnestly pressing the Grand Qadi to authorize these appointments to ease the difficulty litigants found in expressing themselves in Arabic.45 Finally, the court police kept a low profile (1987, 68–69). In this egalitarian environment, litigants were ‘neither submissive nor passive’ (1987, 72). Dissatisfied, a woman ‘slammed the door on her way out of the courtroom.’ The qadi called her back and fined her for contempt of court (1987, 73). The Effeminate Court or Judges of the Second Sex The male population pejoratively called qadis ‘women’s judges’ for their work was confined to family law, a realm of aggrieved and litigiously assertive wives and ex-wives. The qadis long deliberations with women to determine the ʿidda,46 which involved having intimate knowledge of a woman’s menstruation cycle, are thought by the male segment as unworthy of men of integrity.47 Qadis were not only meddling in women’s

44 Nationalists were convinced that what the qadis’ wore was an attire modeled on clerical cloaks of Christian and Jewish religious men. We have already seen Mansur (1939) derided them for wearing the frock of the infidels. Taha made the same argument in a court setting (PR, Port Sudan 1975: Vol. 4, 7–10). 45 The qadi of Kutum in western Sudan indicated that, since he had no court interpreter, he resorted to ask litigants to bring one. Many of these interpreters, he maintained, were scared to death to take the oath on the Qur’an for the veracity of the translation. Generally speaking, a Muslim would minimize the chances of having to swear on the Qur’an for fear of lying inadvertently. The court had seven authorized jobs for interpreters that had not been filled for shortage of resources. (HJC 3/3, a letter from Kutum Court to the SJC, February 28, 1977). In an interview with a paper, the qadi of Kadugli of the Muslim, non-Arabic speaking Nuba said that interpretation was his biggest problem. Although the Nuba speak adequate Arabic, he said, they did not quite make their case before the court (al-Sahafa 15 January 1978). For the language difficulties of Nuba in sharia proceedings see, Manger (1994, 132–136). 46 ʿIdda is a period of waiting at the end of which the marriage is treated as terminated. The woman’s menstrual cycle is central in fixing the time of ʿidda. Also, a menstruating woman is not allowed to take an oath on the Qur’an. A qadi will ask a woman who came to the court to testify if she is in the period of impurity (FluehrLobban 1987, 57–58). 47 Qadis internalized their image as women’s judges and joked about it. A retired qadi was annoyed by the assembly of women relatives who had swarmed his home to prepare for the wedding of his daughter. He called a qadi friend to see whether he was free to visit and stay the rest of the day with him. His friend told him jokingly, ‘What is wrong with you. You made a living working around women.’ (Ahamd Abd al-Rahim Nasr, personal communication, June 1996).

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affairs, but also, to the chagrin of men, were seen as supportive of their contentions. This will be discussed at length in the next chapter when we deal with how patriarchy bore on sharia in different Sudanese locations. Qadis, of course, could not have been inattentive to their virtual clients: women.48 The scene of the debris of failed marriages comprising women and kids littered in the corridors of the court remains indelible in the mind. The ‘noisy cacophony’ (Brown 1997, 367) universally heard around qadis’ courts, sticks in the memory, too. Fluehr-Lobban captures this unforgiving scene in the following: ‘As one enters the gateway to the courts and encounters the courtyard waiting area, the first impression is of women, often with children, and the poorest segments of society’ (1987, 70). Women, and especially poor women lacking in patriarchal support, need the court. Women from families of wealth or authority are represented in courts by the ‘family agents, usually fathers or brothers, or by advocates’ (1987, 70). Unlike husbands, who can utter effective divorce whimsically, wives go to court for divorce.49 They have to work hard to prove their case. To ask for divorce on the grounds of mistreatment, a wife needs two men, or four women, to prove her case. The harshness of these rules, however, is mitigated by the ‘undisguised sympathy of many sharia judges to persecuted women’ (Osman 1985, 128).50 A sharia court was also deemed effeminate in that it was neither allowed to execute its decisions nor empowered to defend itself against contempt. As part of the subordination of Muslim courts to civil courts, the civil judges were made responsible for the execution of the rulings of qadis. In this capacity, civil judges encroached upon Muslim jurisprudence and tampered with its decisions (Thompson 1965, 488–489). We will see below how the court, toothless as it was, had to negotiate respect with clients until it was empowered to pass prison sentences in 1968. Chapter 3 will describe at length how the qadis won the right to execute their decisions, and to punish contempt of their court in favorable political and religious circumstances in the second half of the 1960s. In nationalist terms, the court was seen as polluted and incom48 In contrasting sharia courts to civil courts, a woman qadi said it cogently, ‘Our court knocks on the door and enters the house, and the civil court never goes beyond the rent contract of that house.’ 49 Per Sharia Circular 41 (1939), qadis considerably bridled this urge to prevail by swearing by the divorce of one’s wife (Fluehr-Lobban and Hillawi 1983, 86). 50 Men are not pleased by the qadis’ soft point for women. A male rumor has it that qadis rule for the divorce of beautiful women only to marry them later.

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plete for dutifully executing the restricted jurisprudence assigned to it by the British infidels. A staunch foe of the qadis, Taha, called them ‘judges of milla’ (subordinate religious communities) (RP, July 1975a, 6). Chapter 5 will describe in more detail how Taha took the qadis to task for their alleged docility under colonialism. In the eyes of male chauvinists and nationalist alike the qadi’s court was effeminate. In having women as clientele, this court was privy to knowledge about women a man deserving the name should not obtain. Further, the diminished sharia jurisdiction it was forced to accept, and its inability to execute its decisions made it look as powerless as its women clientele. ‘The Qadis Ride is Here!’ Qadis’ subordination was graphically illustrated for the people to see with the naked eye. Civil judges were assigned larger houses and, unlike qadis, had government cars. In a context where a car was, and still is, acquired as much for transportation as to symbolize status and power, qadis stood to lose by this distribution of government resources tilted toward the civil judges. In May 1991, at a time when qadis were seen to be gaining the upper hand in the amalgamated judiciary under the Islamic regime of al-Bashir (1989–), I introduced myself to ʿAbd al-ʿAziz Shiddu, a former civil judge. I said to him that qadi Kamal al-Din spoke well of him. He said: ‘Good old Majdhub. We were neighbors.’ ‘He is grateful for the rides.’ ‘Actually qadis used to be looked down upon. I used to give him rides on my old [government] Humber.’ Hunud Abiyya, a law professor, interjected: ‘My! They are doing alright nowadays.’ Shiddu saw Hunud’s as an understatement of the power of the qadis: ‘Alright, Oh no! They have grown horns.’

Looting or Inherting Modernity Qadis were hurt by the lowly status of their court and jurisdiction inviting official and public contempt. Two stories I heard from qadis will illustrate the troubles they went through to bestow respect on their court. Kamal al-Din, a qadi who retired in the late 1980s, related an encounter with a civil judge in al-Hasaheisa town in the early 1960s.

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The qadi, who was a first class magistrate, asked that his court, whose expansion required more space, be allowed to move to offices formerly occupied by a district commissioner, a post that was canceled in 1960. The civil judge, a second-class magistrate, did not like the qadi’s move and complained to the Provincial Judge, a civil judge in charge of both sharia and civil courts. In a visit to al-Hasaheisa, the Provincial Judge said jokingly to the qadi when the issue of the building was raised: ʿMawalāna (Justice)! You have your eye on the District Commissioner’s office, I was told. Is it because it used to belong to a British officer or what?’ The judge’s words opened the colonial can of warms. Recognizing that the civil Chief Justice was the one who inherited the powers of the British Legal Secretary including administering the Sharia Division, the qadi replied: ‘I know that I have no claim to an office of a former British officer. It is all yours.’ The civil judge ultimately took the office. In protest, Kamal al-Din complained to the Grand Qadi. The chief qadi was conciliatory and asked him to drop the matter altogether. It was not difficult for Kamal al-Din to conclude that not even the Grand Qadi dared to intervene in a matter decided by junior civil judges. The encounter was a replay of the power game in the Judiciary in which the British subordinated the qadi court to the civil court in humiliating terms. Qadi Kamal al-Din’s move showed an independence of thinking and action that was deemed subversive to the status quo of the Judiciary. His proposal to occupy an office of a defunct British official was perceived as ‘jihad’ rather than a legitimate bureaucratic initiative. His civil colleagues saw the qadi as having no reason to be in that office except to vindicate himself against the British who had humiliated his court. The qadi soon realized that British customs of power never die: The King died, long live the King. A Qadi Who Would Take No More After graduating from Omdurman Islamic University in 1969, Ibrahim al-Mahadi was appointed as a teacher first and then a qadi in 1972. He declined the offer to be appointed as a civil judge for whose work he had been prepared in Omdurman Islamic University. The Chief Justice was furious about Ibrahim’s decision because qadis should not waste any opportunity to prove their competence in civil law as well. Ibrahim explained his decision by saying that positive colonial laws would only allow him to punish a drunkard by imprisonment of three days. He would have liked to do more to a drunkard though. He left the Judiciary in 1978 to become a faculty member at his alma mater which

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sent him on a scholarship to study law at the American University in Washington DC. On his return to the Sudan in 1984, Ibrahim was approached to join Nimerie’s experiment of the instantaneous Islamic justice in October 1984. He did. And his uncompromising attitude in a number of corruption cases of the political as well as the business elites caused him to fall from Nimerie’s favor. He was imprisoned just before the ousting of Nimerie’s regime in 1985. He told the following story about a situation in which he vindicated his court. Notice he spoke as a member of a generation of qadis who had no feeling of inferiority vis-à-vis civil judges since, due to their training, they could have been on civil courts had they chosen: On joining the qadi division, we found it subordinated and humiliated. We began wearing European suits just like civil judges as a sign of our protest and as a token for change. Our suits brought us a respect and awe our caftan-wearing seniors never enjoyed. Our seniors did not like us wearing suits, though. These seniors, however, had to put up with a lot from assertive, and probably, effendi litigants whose contempt of our court was unbearable. Qadis, however, would calm the abusers, order them tea and reconcile them. If asked why they did not try these litigants for contempt of court, they would say, ‘We are not civil judges. We are different.’ It is true because they had never got used to sending someone to prison like a civil judge.51

Qadi Ibrahim remembers an incident in which his senior qadi was subjected to such a humiliating ordeal. Ibrahim was beside himself from anger. He asked his senior to try the man for contempt of court, or he would take the matter to the Grand Qadi. Knowing that Ibrahim had access to the Grand Qadi for both came from the same ethnic group, the senior qadi agreed to allow Ibrahim to try the man instead. 52 Apparently, contempt of court was a professional hazard with the qadi court. Ibrahim also remembered, as a second-class qadi, the day an army officer stormed his court, pushed the line of litigants in front of him, and protested that he had been waiting for more than ten minutes without being attended to. Ibrahim asked him to go out the court to return and salute the court. He then called the usher to fetch the necessary form to file a case of contempt of court against the officer. The officer reentered 51 Even when the qadis succeeded in having the power to imprison for contempt of court in 1968, a directive from the Grand Qadi asked qadis to use it moderately to avoid jeopardizing the tolerance and civility that had been the tradition of the sharia court (see page 213). 52 Ibrahim el-Mahdi, a telephone interview from Washington, February 1998.

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the court and saluted the court as ordered. He also implored Ibrahim to stop the procedure on the contempt of court case. Colonial Envy: Season of Migration to the Civil Judicairy Qadis strongly resisted the various forms of their discontent and subordination. We will see in the next chapter how either the Sharia Division and/or individual qadis stood up against various usurpations of their jurisdiction during the colonial period. Before their efforts to improve their terms of services took a collective form after the independence of the country in 1956, individual qadis, left to their own designs to seek a rewarding job, would opt out of the Sharia Division by moving into the Civil Divisions, or out of the Judiciary altogether.53 In their own critical idiom of the oppressive modernity to which they had been subjected, traditional elites called those of their ranks lured by colonial modernity ʻman jarafahum al-tayyār’ (those washed away by the current, those who jumped on the wagon of modernity). With the continued subordination of the qadis in the postcolonial era, migration of qadis to the Civil Division did not stop. These migrations will be usefully interpreted in Chapter 4 to shed light on President Nimerie’s 1983 ‘instantaneous justice’ experiment. The Islamic judges of this experiment came largely of this migrant type of qadis. In crossing from the subordinated Sharia Division to the prestigious Civil Division of the Judiciary, the colonized, an ‘envious man’ in Fanon’s words (1968, 39), invades and occupies the station of his humiliation. These migrations show men smitten by the colonial evil eye by which natives, according to Fanon, turn a look at the privileged colonial zones, ‘a look of lust, a look of envy, it expresses . . . [their] desire of possession’ (1968, 39).54 53 Kamal al-Din, a qadi, applied to join the Gezira Scheme as a field inspector. Although he had a long experience, as a qadi, in the registration of the lands of the Scheme, his application was rejected. The modern scheme, Kamal al-Din said, would not consider a qadi for the job. He said, ‘He is a sharia qadi after all.’ (An interview with Kamal al-din, Khartoum, May 1991). Although not a qadi, Ahmad Y. Hashim (1903–1957), a graduate of al-Mahad, succeeded in switching to a more prestigious, modern career. He left his clerical job with the Sharia Division to become a journalist. He eventfully came to be known as ʻAbu al-Ṣuḥ uf, ’ (the Father of the Press) for publishing in 1944 the first paper financed and run by a practicing journalist rather than religious and political families, or foreign communities. He is the one who coined the popular phrase ʿḥukūmat al-Mufatishīn’ (the government of District Commissioners) to denounce the absolute powers these commissioners wielded during the colonial era (Bashary 1981, 52–55). 54 The colonized evil eye comes through in what Amin Zaki, a national soccer player in the 1960s, wrote in 1977 about his memories growing up under the colonial regime.

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The British authorities were not opposed to qadis leaving the Sharia Division. On the contrary, it occasionally initiated training programs to facilitate such transference. Drawing on his experience in Iraq, T.P. Creed, the Legal Secretary (1941–1948), worked to create an amalgamated judiciary.55 Thus the first batch of students in the Law School in 1938 was taught civil and sharia laws. Although appointed originally as assistant qadis, none of them chose to see sharia cases.56 At the same time, the graduates of the Qadi School at Gordon Collage were appointed as committal magistrates with options to switch to civil courts. Sharia graduates stuck their heels in and refused to switch except for Muhammad E.S. Qassuma, al-Rashid Nayl, who became MP in 1965 representing the Communist Party, and ʿAbd al-Rahman al-Nur, a minister of the dominant Umma Party in 1966.57 Qadis disapproved of the amalgamation of the Judiciary during the colonial period. They were turned off by the administration’s campaign in the 1920s and 1930s to replace sharia courts by native courts endowed with sharia jurisdiction,58 as we will discuss in details in the next chapter. Qadi Kamal al-Din, whose unhappiness with his choice of the qadi career we mentioned earlier, tried hard, to no avail, to find a job to suit his impeccable modern habits. He wanted to switch to the Civil

Oppressed by the misery at home, he was incensed by the ‘bespectacled white man in his white short, white shoes, smoking his pipe, having flower plants climbing the wall of his house’ (al-Quwat al-Muslaha 31 December 1977). 55 Qadi Sheikh al-Juzuli, personal communication, Khartoum, May 1991. 56 Qadi Sheikh al-Juzuli, personal communication, May, 1991. Al-Juzuli attributed the drive to amalgamate the Judiciary under Babiker Awadalla, the Prime Minister and Minister of Justice after Nimerie’s coup in 1969 and Chief Justice (1964–1965), to his early training in civil and sharia under the British. For more on Awadalla, see Chapters 3 and 4. 57 Qadi Hasan al-Budani was famous for his communist activities such as his leadership of the national World Peace Council. Prof. Abdalla al-Tayyib, an authority on Arabic literature and an Emeritus Professor at the University of Khartoum, went to college with this group of qadis. He remembered Nayl as a better poet than he was. He attributed Nayl’s communist inclination to the cruelty of his father who had been a teacher. Al-Budani was remembered as infatuated by reading a magazine of film and stars (al-Tayyib 1994, 231; personal communication, Khartoum, March 1991). 58 Qadi al-Juzuli, Grand Qadi btween 1976 and 1980, personal communication, May 1991. The first patch included illustrious names in the annals of law in the Sudan: Justice Muhammad A. Abu Rannat who became Chief Justices between 1956 and 1964; Mubark Zarruq, Mohamed Ahmed Mahgoub, and Ahmad Khayr who all became ministers of Foreign Affairs at various times in postcolonial Sudan. Mahgoub became the prime Minister for two terms in the second half of the 1960s. Qadi al-Juzuli said that senior qadis at the time he joined the Sharia Division were affronted by the accusation that they had had too little business, and that the government had to keep them busy doing civil law.

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Division of the Judiciary in 1946 or 1947, but the Grand Qadi did not sign his release papers reminding him of his dead father’s wish and ultimate pleasure having him in the qadi career. He was also reminded that taking qadis into the Civil Division was a colonial plot to eventually do away with the sharia court system.59 Transferring to the prestigious civil court was a well-trodden track for discontented qadis. Majdhub ʿAli Hasib graduated from the Qadi School of Gordon Memorial College in the early 1930s and was appointed assistant magistrate in the Sharia Division. However, he later returned to college to enroll in the Law School and became a civil judge (ʿAbd al-Rahman n.d., 5). The joy of the partial possession of the colonial goodies is best represented by Justice Muhammad Salih al-Shinqiti (1896–1966). Although he graduated from the Qadi School in 1918, he never sat on a sharia court.60 After a career as an administrator, he was appointed a civil judge in 1930. In 1948, he was made the speaker of the Legislative Assembly, which was intended as an experiment in teaching Sudanese self-rule in preparation of the gradual independence of the country. Al-Shinqiti’s social life was also something a qadi could never have led. He was a driving force behind all the cultural and social national projects of the alumni of Gordon College such as the Graduates’ Clubs, the Graduates’ Congress, and the Cultural Center of Khartoum and was on the boards of numerous non-government schools. As a member of the Council of the University of Khartoum, he had always been booked to meet with visitors at his house for tea parties. He proudly walked them through his famous library and his worthy carpet collection. He pioneered flower exhibitions at the Cultural Center. In receptions, he always wore his three-piece suit with a red rose on the jacket. He was a free mason too (al-Hasan 1989).

59

An interview with Qadi Kamal al-Din, Khartoum, May 1991. Al-Bushi, a politically active qadi since his college years, said that he, unlike Justice al-Shinqiti, refused the offer to switch to the Civil Division presented by the Legal Secretary (al-Sahafa 21 February 1981). Although his politics was more religiously informed than his contemporaries, al-Bushi spent a rather long career doing politics in a strictly secular setup including a membership of the 1954 Parliament and being the Minister of Justice (1954–1956). His religious emphasis, however, showed in his drive to Arabize education and to reform religious education (al-Baqir 1988, 23–24). At a rather late age he joined the Islamic Charter Front, led by al-Turabi, in 1964, and was its candidate in the special graduates’ constituencies in the 1965 elections (al-Mithaq al-Islami 5 May 1965). 60

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Qadis’ Unionism: Qadis of the Sudan, Unite With the removal of the British rule, the qadis anticipated a redressing of their colonialism-made grievances as both government employees and Muslims whose law had been shortchanged. They trusted that independence would do justice to Islam and Arabism whose disrespect under colonialism had fueled and inspired national resistance. Further, they were encouraged by three qadis who came into power as ministers of the first cabinet: Ali Abd al-Rahman, the Minster of Interior; Muddathir al-Bushi, the Minister of Justice; Muhammad Ahmad al-Mardi, the Minister of Local Government.61 The elevation of these qadis in the political hierarchy broke the fear barrier of the qadis who had never seen one of their own in a position of power. In anticipation, the qadis released their first balloon to test the truthfulness of religious nationalism in the form of a memo submitted by the Grand Qadi in 1956 to the National Committee for the Constitution in which he proposed the adoption of sharia as the constitution of the country. Except for the establishment of a ministry for religious affairs, the postcolonial state found nothing to quarrel with in the colonial set-up of the state. The Constitution adopted in 1956 was secular, the laws of the land were the ones left by the colonialists, and English remained the medium of instruction, government correspondence, and the courts. Disappointed, the qadis resorted to unionization to equalize with civil judges. Their union was formed in a meeting in February 1957. Nationalistic rhetoric dominated their deliberations. The purpose of the meeting was described as seeking ways to improve sharia courts ‘to occupy its deserved position in this Muslim country after having suffered of neglect for more than half a century under colonial rule’ (al-Ikhwan al-Muslimun 29 July 1957). Another general meeting took place a year later. Evidently the qadis were aggrieved by the inaction of the Chief Justice. They sent him a telegraph protesting his policies that led to further discrepancies between the civil and sharia judges. The Chief Justice was asked for a prompt response or the case would

61 These qadis had been in the forefront of the nationalist fight. Their role in Medani town in mobilizing workers and tenants against colonialism has been pointed out by Mahmud Abu al-ʿAzaʾim (al-Sahafa 24 January 1984). The participation of ʿAbd al-Illah Abu Sin and Muhammad al-Amin al-Qurashi along with others from the qadi class in the nationalist movement has been variously indicated. For al-Qurashi’s political and missionary role see Bashary (1981, 304–307) and Nasr (1974, 72–81; 1979, 72–110).

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be taken to the public. The resignations of the qadis could have been the next union action (al-Ikhwan al-Muslimun 29 May 1958).62 The qadis’ union survived neither the junta takeover in November 1958 nor the immense power the Chief Justice wielded in the new regime. However, with the junta losing grip before its fall in October 1964, the qadis reformed their union under the leadership of ʿAbdalla al-Sanosi and the Chief Justice threatened to fire them. With the return to democracy thanks to the October Revolution of 1964, the qadis resumed their unionization encouraged by the Grand Qadi, Hasan al-Yamani himself. With the rising call for Islamization in the political arena, the qadis were encouraged to go beyond equalization with the civil judges under the same roof. Instead they demanded that their Division should be autonomous. In December 1964, they withdrew their resignations supporting the separate and equal judiciaries after some serious talk with the Prime Minister (al-Rayaam 31 December 1964). In Chapter 3 we will see how the qadis’ specific claims played out in the volatile and intriguing politics of al-Azhari, the president of the Supreme Council of State (SCS) between 1966 and 1969. It is noteworthy that the qadis’ fight for equal pay was completely missed by the powerful leftist trade union movement. Instead, qadis’ communiqués on their meetings were published in the Muslim Brothers’ press. Two cases stand out for the complete abandonment of the modernist left of the qadis’ trade unionism. In his comments on a draft of a constitution in the first Parliament in 1955, Hasan al-Tahir Zarruq, the only communist member, emphasized equality of pay for the same work as a constitutional right. He correctly pointed to the discrepancies of salaries given to women compared to men, and southern Sudanese compared to northern Sudanese. However, he never made reference to the qadis as a category of employees whose salary had fallen way short of their compatriots in the Civil Division (Silayman 1971, 174–175). Because of the lack of a solid and outspoken constituency for modernity, communists had to be the public spokespersons of colonial modernity

62 Al-Ikhwan Al-Muslimun (1958), the mouthpiece of the Muslim Brotherhood, and its successor, al-Mithaq al-Islami (1964–1969) were the forums where qadis’ news was welcome. Qadis’ Pan-Islamic and Pan-Arabic activities were reported (al-Mithaq al-Islami 17 August 1967). Obituaries of qadis were also carefully given (al-Mithaq al-Islami 13 October 1965).

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rather than its critics. We will deal with aspects of their altered mission in Chapter 3. Not even the leftist Sudanese Women’s Union (SWU) showed any interest in qadis’ grievances although it had been working closely and productively with the qadis on family law. In response to a campaign led by the SWU to improve women’s lot, the Sharia Circular number 54, 1960, was issued to give would-be wives the right to agree to their future husbands (Ibrahim n.d., 36).63 Further, and in response to women’s demand, the qadis provided in their child support regulations in 1968 the deduction from a deadbeat father’s salary more than the one-quarter allowed by state financial laws. But the leftist state of Nimerie (1969–1971), which was supported by the SWU, was reluctant to go beyond the established one quarter of the salary. The SWU pressed hard for an unlimited deduction contingent on providing decent support for children. Awadalla, the Prime Minister and a former Chief Justice (1964–1966), was adamantly against increasing the deduction. To please the popular SWU, Nimerie agreed to deduct half the salary of a deadbeat father (n.d., 86). It is not clear if this was followed through. Mrs. Fatima Ahmad Ibrahim, the founder and President of the Union, has always said that the state in Sudan has never turned down her demands to better women’s lot. The devil of the state, however, comes in the execution. Adept in stonewalling and suffering from perpetual short memory as a result of frequent personnel changes, the state never delivered. Clearly, the qadis were ahead of the modern civil establishment in this issue of child support since it was the area they had experienced more than any branch of the state. Nonetheless, the SWU had shown no interest in the administration of sharia beyond lobbying to change the laws of divorce and child support. Beside asking for the establishment of new sharia courts to expedite reviewing of cases of divorce and custody (n.d., 79), the Union showed no curiosity in the life of the officers of the family law it had sought to reform (n.d., 59–60). Although the SWU constantly reminded authorities of the discrepancy in salaries between men and women, it never raised the issue of the qadis’ pay. Thanks to the political mobilization of the SWU, some

63 For a cogent presentation of Sharia Circulars of the sharia courts between 1902 and 1979, see Fluehr-Lobban and Hillawi (1983).

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categories of women even won equal payment with men in 1967 just one year after the qadis had won the same in 1966 (n.d., 79). In Chapter 3 we will discuss the context of Islamization in the mid to late 1960s when the qadis were vindicated. Suffice to say that at the end of the day, the qadis’ injustice was lifted thanks to the ‘reactionary’ forces of Islamization the SWU would not have liked to see in power. Modernists were apparently affronted by moves that the qadis and clerics made to negotiate better pay. In view of the ‘modernists,’ men of religion, who did not belong to the times anyway, should be content with whatever they had. Qadis were constantly reminded during the colonial period that the state from which they had asked for raises, was an infidel one whose resources came from fees on liquor and prostitution licenses. No man of religion deserving the name, went the modernist taunt, would like to live on incomes so tainted. Graduates of al-Mahad still remember the humiliation they were subjected to when they used to ask for improving their quality of life in the 1940s and 1950s. The authorities used to tell them that they were short of funds because prostitutes and native liquor brewers had not paid their taxes (al-Sudan al-Hadith 9 October 1991). Putting clerics to shame for indirectly taking the wages of sin continued even in independent Sudan. As late as 1965, Khalid, whom we will see repeatedly championing modernity against qadis, was astonished to see qadis actively working in a coalition for bringing about an Islamic constitution. He advised that politics did not look good on them. In accepting salaries which came from haram sources like taxes on liquor, qadis, the custodians of Islam, he continued to say, could not be trusted as political actors (Khalid 1974, 190). Conclusion The Manichaean dichotomies of the dual Judiciary, which deprived it of professional coherence and efficiency, will unravel in the rest of the book. Just like the nation at large, the Judiciary in the postcolony, held hostage to the dubious, but real, arrangement of modernity and tradition, has been second-guessing itself to death. Too disabled by its duality to be the master in its own house, the Judiciary was invaded by political and ideological lobbies of all colors and stripes. In fact, these lobbies were attracted, or rather invited, by the participants in the war of the divisions inside the Judiciary. Presidents found this Manichaean

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seam in the institution and worked on it for their own good. Because the Judiciary lacked a clear-cut policy of decolonizing itself in order to administer justice to citizens of a new nation, identity politics stormed it. An ideology would colonize it for a period until replaced by another.

CHAPTER TWO

A TALE OF TWO COURTS: THE SHARIA OF ALLAH AND THE CUSTOM OF THE PATRIARCH In the 1920s the Sudan government made a turnabout from direct to Indirect Rule. Indirect Rule was arguably a moment of colonial remorse when colonialists scurried to reverse the changes they had begun to effect on the communities under their sway. Mahmood Mamdani calls this a ‘moral surrender’ by which a colonial shift in perspective and practice occurred, from a civilizing mission to a law-and-order administration (1996, 109). This shift in the specific situation in the Sudan was quickened by the nationalist revolution in 1924, which was led by the urban, educated class and the ‘negroid but detribalized elements’ (Abdin 1985, 84, 98–103; Kurita 1997, 45), sons of ex-slaves from the darker southern parts of Sudan especially those who had joined the colonial military institution. The social prominence of these elements was largely the result of the colonial educational and abolitionist policies. The artisans and workers that followed them were described by the British as the ‘rabbles of nobodies led by shady characters’ (Abdin 1985, 59). Worse still, from the British perspective, Egypt, the co-colonialist, was allegedly the underwriter of the insurrection (1985, 102). In picking up its pieces of administration after this jolt, the British used Indirect Rule to vindicate themselves. The Egyptians were asked to leave the country (Daly 1986, 306–307). The British had always suspected the colonial integrity of the Egyptians and blamed their corrupt and oppressive administration of the country in the nineteenth century for causing the Mahdist Revolution. The British had only put up with the Egyptians in the Condominium colonial arrangement because of Egypt’s prior claim to Sudan. However, every measure was taken to assign them menial colonial jobs and to watch their alleged indulgences. Further, Indirect Rule was intended to humble the impatiently aspiring educated class and stunt its growth. To diminish and humiliate this ‘pushful intelligentsia,’ the British closed schools (Sharkey 1998: Vol. 1, 156).1 1 Describing this class as ‘pushful’ was the coinage of Sir John Maffey, the GovernorGeneral between 1926 and 1933. NRO, Civsec 1/3/101, Minutes by his Excellency the Governor-General, January 1, 1927.

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By making life at Gordon College a drudgery of floor sweeping and unremitting corporal punishment, the British were perceived to have wanted to break the spirit of these wild, ungrateful young men (Mahgoub and ʿAbd al-Halim 1986, 22, 32; Najila 1994: Vol. 2, 75–80). The result of Indirect Rule, as envisioned by the British, was to bar, in the words of John Maffey, the Governor-General of Sudan, 1926–1934, the ‘blackcoated class’ of Sudanese from jobs they would otherwise have looked forward to secure (Daly 1986, 354). The educational environment under Indirect Rule was described by a former official in Sudan as an ‘ice age’ compared to the ‘educational freshness and enterprise’ before the 1920s (Hodgkin 1991: Vol. 2, 157). The policy of native administration was adopted largely to circumvent the envious elites by maintaining alliance with their quiescent, more amenable and less critical ‘rustic fathers’ (Atiyah 1946, 163; Daly 1986, 358–59). Facing the prospect of the ‘democratic movement’ they had adopted so far, favoring the new educated class at the expense of the autocracy of tradition, the British backtracked. Although the dice were already loaded in favor of the educated class, the Governor-General confessed, the British rulers, acting as a symbolic ‘Father of the people’ were to use Indirect Rule to devolve power to the tribal chiefs, and secure autocracy.2 Custom was therefore made the law of the natives and ‘the bearer of custom was said to be the tribe’ (Mamdani 1996, 51). By the dual process of salvaging and sculpting custom, Britain ended up creating native authorities ‘each armed with a whip and protected by the halo of custom’ (1996, 49). Defined and marked as a member of a tribe, Mamdani argues, ‘the colonized African was more fully encapsulated in customarily governed relations than any predecessor’ (1996, 51). In implementing Indirect Rule, the British considered sharia courts as ‘yet another agency of detribalization’ (Daly 1986, 389). To suppress this disruptive agency, the British gave native courts concurrent jurisdiction with sharia courts over personal status matters involving Muslims. The sharia applied by native courts was identified as the one interpreted by the native customs of the Muslims in their tribes. We will see later how these Islamic, native practices diverged from the strict sharia code. The ultimate purpose behind endowing the native courts with sharia jurisdiction was to gradually eliminate the sharia courts in tribal areas (Salman 1977, 229).

2

NRO, Civsec 1/38/101, Minutes by his Excellency the Governor-General, January 1, 1927.

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The sharia authorities fought back forthrightly and slyly, depending on the situation, against the folklorization of their law and the elimination of their courts. This chapter analyzes the correspondence exchanged between the sharia courts authorities and the British colonial officers in Sudan between 1927 and 1934 to work out the relationship between the qadi and native courts after the imposition of Indirect Rule. My narrative of the two courts is intended to revisit colonial governmentality to bring out its paradox indicated in the introduction of this book: a rationalized administrative structure whose policies and actions led communities over which it had held sway to be more parochial and fragmented. I will show how the hard and fast legal barriers created by the colonial administration prevented the two courts from working out any meaningful relationship regarding their concurrent jurisdiction. To this effect, I will reconsider this correspondence for the purpose of speculating what that relation could have been if the colonial government had been positively receptive of the input of the Islamic court institution on the issues at stake. On a close study of the constructive ideas and reactions of the sharia authorities, occasionally described as disarming by colonial officers, one is inclined to suggest that the relationship between the two court systems, usefully reconstructed by Salman (1977, 227–245) and Daly (1986, 389–391), could have been more amicable and creative had it not been for the evidently incurable estrangement of the colonial state. This chapter will begin by describing the response of the qadis, and their ultimate resistance, to the policy of endowing native courts with sharia jurisdiction, especially after being repulsed from participating in shaping this policy. It will investigate next the issues at stake in the conflict between the qadis and the British administration over the relation between sharia and native courts. Instead of resolving these issues, it will be argued that the colonial administration cut edges and utterly fabricated the relation between the two courts. I then will turn to speculate on what the relation could have been had the colonial officers took into consideration the input of the qadis. In being guilty of this utter disregard of the qadis’ input, the British, it will be argued, wasted an opportunity to work forthrightly with a local network that it had created in the first place. Finally, I will investigate the discourse of custom at the heart of the policy of native administration as a sign of colonial fatigue, or, in Mamdani’s words, ‘colonial moral surrender.’ The area of this fatigue that will be touched upon here is giving up on urbanization by subjecting the modern educated class, towns, and women to the will and custom of the patriarch.

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By granting native courts sharia jurisdiction on equal footing with sharia courts, the British administration aggrieved the qadis on several points. First, this policy would have ultimately led to the elimination of sharia courts from Muslim rural Sudan. Between 1927 and 1930, ten sharia courts were suppressed.3 In 1932, two more courts were closed.4 As late as 1932, when the government was apparently reversing gear with regard to its enmity to sharia courts, the Legal Secretary still then saw the suppressing of all sharia courts south of Khartoum, except in major towns, as the cornerstone of the government’s policy.5 Second, the policy restricted existing sharia courts from hearing cases in areas where a concurrent jurisdiction had been given to a native court. The administration wanted the native courts to execute their sharia jurisdiction unhampered by qadis. Hence it used the power of summons to ascertain that cases pending before, or decided by a native court, would not be reopened in a sharia court. It was suggested that District Commissioners be empowered to sift through qadis’ summons to make sure that none of them arose from a case that was still to be adjudicated before a native court.6 Ahmed el-Medani, the qadi of Rashad town in the Nuba Mountain, would take issue with this policy, as we will discuss shortly. Third, the policy, in the qadis’ view, granted sharia jurisdiction to ignorant and untrained tribal chiefs. Fourth, it especially affronted the qadis by authorizing British District Commissioners, as the heads of native administration, to decide on sharia appeals from native courts. By this authorization, British unbelievers would have authority on the law governing Muslim personal lives. We will see how this particular issue irked the Grand Qadi when we turn next to his correspondence with the colonial administration. The Grand Qadi and ‘Sly Civility’ Colonial ignorance is a willful act of power. The correspondence between the Grand Qadi and the Legal Secretary regarding the relationship between native and sharia courts illustrates how hierarchy precluded 3 NRO, Civsec 42/1/2, Legal Secretary ‘Sharia Courts and Native Courts,’ February 16, 1932. 4 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, February 25, 1932. 5 NRO, Civsec 42/1/2, Legal Secretary ‘Sharia Courts and Native Courts,’ February 16, 1932. 6 NRO, Civsec, 42/1/2, Governor of Darfur to Civil Sec, December 7, 1928.

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the administration from seeing an idea for what it was and not for what it represented. In a long letter to the Legal Secretary, the Grand Qadi voiced his worries about endowing native courts with sharia jurisdiction. The aspect of the government’s decision that worried him most was that sharia courts were not given power to decide on sharia issues unless both parties to the suit made it clear that they wanted their suit decided by a sharia court. This aspect was repeatedly reformulated to assuage the fears of the qadis.7 But in all these reformulations a sharia court was required not to proceed in any case within its jurisdiction before ascertaining that it had not been heard in a native court. The Grand Qadi’s ideas were so persuasive that the Legal Secretary described them as ‘moderate and very intelligent’ (Salman 1977, 232). Overpowered by the Qadi’s arguments, the Legal Secretary admitted that at first he thought it would be difficult to answer them. Rethinking the matter, however, he assured the Civil Secretary that he was then prepared to write back to the Qadi.8 We will deal first with the rhetoric, rather than the content, of the Secretary’s reply. In fact the rhetoric was so intimidating that it rendered the discussion of the substantial points of law inconsequential. We will turn to these points at a later place in the chapter. An intelligent critique from a junior, of course, threatens the conventional traffic of wisdom in a hierarchy in which intelligence is a trickle-down effect. To counteract this threat, the Legal Secretary, who supervised the work of the Grand Qadi, impressed on him their relative positions in the hierarchy. To this end he resorted to two strategies. First, he named the higher authorities, including the Governor-General, with whom he had discussed the sharia jurisdiction of the native courts before composing his answers to the Qadi. Reference to discussions with these higher authorities was made to underline the fact that the sharia jurisdiction of the native courts was only one aspect of a grand policy of ‘entrusting to the natives of the country greater authority in

7 The earliest formulation required the consent of both parties to a suit before a sharia court could entertain jurisdiction (Salman 1977, 229). In a further reformulation the decision of one party to have his case adjudicated by the native court would be final and binding on the other party (NRO, Civsec 42/1/1, Memorandum from Legal Secretary to District Commissioners, February 20, 1925). Finally it was decided that the consent of both parties was required before a native court would look into their case. The native court was required to have the consent of the parties in writing (NRO, Civsec 42/1/2, Legal Secretary to Grand Qadi, October 25, 1937). 8 NRO, Civsec 42/A/1, Legal Secretary to Civil Secretary, November 16, 1927.

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managing their own affairs.’9 In other words, the Grand Qadi might be smart but his ignorance of this larger context of the policy made his criticism fallacious. Second, having the hierarchy asserted, the Legal Secretary was projected as privileged with access to information unavailable to the Grand Qadi. In this connection, the Legal Secretary indicated the opportunities he had to discuss the details of the matter that enabled him to see how the principles of native courts would work out in actual practice.10 In setting the hierarchy straight, the Legal Secretary had also reduced the objections of the Grand Qadi to the policy to mere misunderstanding of it. The information the Legal Secretary obtained in interacting with the high centers of power, he wrote, was a matter of highest importance. For it was incumbent on him, according to the Legal Secretary, that he should consider every aspect of the policy ‘in order that he might be able to explain it fully and clearly to the Grand Qadi.’11 No wonder that the heavy-handed reply of the Legal Secretary included threats that were meant to make the Grand Qadi ‘fall into line’ with the government policy. The chain of command was clearly stated to the Qadi to stop his fastidiousness. In having the policy explained to him, the Grand Qadi had to accept and execute it because it could only fail through misunderstanding. The Legal Secretary wrote to the Grand Qadi: I am responsible just as your Honor and every high official of the Government and head of Department is responsible, for seeing that the policy decided upon by the Government is carried out in the spirit as well as in the letter, whole-heartedly [emphasis added], by ourselves and by those over whom we have authority . . . in order that his Excellency, the Governor-General, may not hold us responsible for having failed through any misunderstanding [emphasis added], to fulfill our obligations. His Excellency impressed this point upon me and desired me, to impress it upon you (Salman 1977, 235).

Although the Grand Qadi submitted to the undisguised threats from the Legal Secretary, he was not obsequious. Salman wrongly described his reply to the Legal Secretary as ‘submissive and searching for face-saving solutions’ (1977, 235).12 His reply is better explained in

9 10 11 12

NRO, Civsec 42/1/1, Legal Secretary to Grand Qadi, February 8, 1928. NRO, Civsec 42/1/1, Legal Secretary to Grand Qadi, February 8, 1928. NRO, Civsec 42/1/1, Legal Secretary to Grand Qadi, February 8, 1928. NRO, Civsec 42/1/1, Legal Secretary to Civil Secretary, January 29, 1929.

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terms of Pierre Bourdieu’s game of honor. In this game, the weak and the offended one throws back shame on his offended by adopting an attitude of humility. By emphasizing his weakness, the offender ‘highlights the arbitrary and immoderate character of the offense’ (Bourdieu 1977, 13). The most salient point in the reply of the Grand Qadi to the Legal Secretary was his insistence that he did not misunderstand the government’s policy and hence did not need it explained to him. Far from that, he wrote his views about the policy in the understanding that he would help shape it. The reason he wrote at all, he said, was his belief that ‘the matter was still under consideration and discussion.’13 The Qadi said that the last paragraph of the Legal Secretary’s original letter made him believe that he was invited to express his view ‘in the interest of the public.’14 Honor in an Arab community is largely about knowing when to speak and when to remain silent. The Qadi clearly said that had he known that he was not asked to share his ideas, he would have kept them for himself. He wrote: ‘Now that your last letter shows that the Government is determined to have this policy carried out, any responsible official has no alternative but to find the best way for carrying out.’15 Clearly, the Qadi exhibited a remarkable ‘sly civility’ (Bhabha 1994, 99) by refusing to satisfy the colonizer’s demand. This demand rested on a colonial ambivalence defined as the ‘incompatibility of empire and nation’ (1994, 96): that is, the tension a colonialist experienced pulled in opposite directions between the ‘knowledge of [metropolitan] culture and the custom of [imperial] power’ (1994, 129). Like stuttering, the ambivalence stems from the desire to speak and the fear of the addressee. The Qadi only submitted after highlighting the arbitrariness he had been subjected to. Nonetheless the Grand Qadi cooperated fully in the execution of the policy of Indirect Rule. But more than one year later, the Legal Secretary was still triumphantly reporting to the Civil Secretary on the submission of the Grand Qadi to the Government’s policy.16 However, it could be said that the Legal Secretary won the day but failed to make an

13 NRO, Civsec 42/1/1, Grand Qadi to Legal Secretary as quoted in a letter from the Legal Secretary to Civil Secretary, January 29, 1929. 14 NRO, Grand Qadi to Legal Secretary, January 29, 1929. 15 NRO, Grand Qadi to Legal Secretary, January 29, 1929. 16 NRO, Civsec 42/1/1, Legal Secretary to Civil Secretary, December 29, 1929.

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argument. And much ink was spilled in the meantime on how to effectively disengage the native courts from the sharia courts in carrying out their concurrent sharia jurisdiction. Ahmed el-Medani: The Making and the Breaking of a Fundamentalist In the heyday of Indirect Rule, Shaykh Ahmed el-Medani was transferred to Rashad, the headquarters of the Eastern [Nuba] Mountains District of Kordofan Province, to be its sharia qadi. Not long after he assumed office, he sent a letter to the Legal Secretary through the Grand Qadi, complaining that the District Commissioner of the Eastern Mountains was obstructing the summons his court issued to litigants. Additionally, el-Medani also complained that the District Commissioner instructed him that the sharia court should always refer those applying to it for work to their native court. The Grand Qadi passed on el-Medani’s letter to the Legal Secretary commenting that the District Commissioner’s actions were at variance with regulations.17 In turn the Legal Secretary forwarded the letter to the Civil Secretary who referred it to the Governor of Kordofan (whose authority included the Eastern Mountains District) to investigate the conflict at Rashad and put matters right.18 After this strong entry into the colonial space, el-Medani stopped presenting himself or his arguments by himself. Instead, el-Medani was represented by the correspondence on the Rashad affair exchanged by colonial administrators. In the only episode where he actually appeared in person, for a meeting with the Legal Secretary after his conflict with the District Commissioner, the report on the meeting represented him as compromising and admitting a mutual misunderstanding in his encounter with the District Commissioner.19 From the rest of the record, which is largely devoted to a discussion of the personality of the qadi, el-Medani emerges as a modern-day ‘fundamentalist.’ Colonial administrators have always struck me as very good at namecalling. The Governor of Kordofan without even waiting for his District Commissioner to explain the Rashad affair to him, described el-Medani as a ‘very northern-minded [from Muslim, Arab northern Sudan] pedant

17

NRO, Civsec 42/2/2, Ahmed el-Medani, Qadi of Rashad, to the Legal Secretary, December 29, 1929. 18 NRO, Civsec 42/1/2, Civil Secretary to Governor of Kordofan, May 21, 1931. 19 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, October 6, 1931.

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of a type politically unsuitable to a district like Rashad.’20 The special case of Rashad which required having a different qadi than el-Medani will be made clear shortly. The District Commissioner, on the other hand, in the section of his explanation devoted to the ‘personality’ of the qadi, described him as a ‘religious fanatic of a fairly advanced type.’21 The accusation of el-Medani of fanaticism can best be understood with reference to the ‘Nuba policy’ rather than Indirect Rule per se. J.A. Gillan, the Governor of Kordofan to whom el-Medani’s complaint was referred by the Civil Secretary, was the architect of that policy toward the Nuba communities of western central Sudan. The main underlying principle of the policy was to preserve or evolve an authentic Nuba ‘pagan’ civilization and culture. The policy was designed to support the separate development of the Nuba along their cultural lines until they were fit to choose the type of civilization most appealing to them (Gillan 1931; Nasr 1971, 1974; Salih 1989, 236). Christian missions were admitted very early among the Nuba and Gillan defended their presence on the basis of his policy of providing Nuba with alternatives to choose the culture best suited to the area. Understandably Islam, the other alternative, had already been in the Nuba region. The criticisms to the Nuba policy are legion (Salih 1989) and I will not dwell on them here. However, for the effective implementation of the policy, the sharia courts in the Nuba region would, of course, be abolished. As early as 1917, a qadi stationed in the Nuba Mountains resented the fact that Christian missions were allowed in the region while Muslims were discouraged or debarred. In his rage against this discrepancy in the treatment of Islam and Christianity by the Government, he pledged to devote himself to Islamic missionary activity on his retirement from Government service. In 1946, he made his promise good and applied to the government to get permission to start his religious mission. But the government was lukewarm about granting him permission. However, he lobbied widely in Egypt and Sudan to get the government either to allow him into the Nuba region or to debar the Christian missions. Finally, the government gave in and the ex-qadi began a successful mission (Nasr 1980, 77–79). His actions, even before the mission episode, gained him a bad reputation among the British

20

NRO, Civsec 42//2/2, Governor of Kordofan to Civil Secretary, May 24, 1931. NRO, Civsec 42/1/1, District Commissioner of Rashad to Governor of Kordofan, May 30, 1931. 21

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administrators, and he was described without naming names as the ‘youthful monstrosity from Hasaheisa;’22 Hasaheisa being his original village on the Blue Nile. El-Medani had come to Rashad apparently with the determination to defend his court against the Nuba policy that entailed the suppression of sharia courts. The District Commissioner reported that el-Medani was ‘making heavy weather’23 on arrival to Rashad. El-Medani had rightly interpreted the directions from the District Commissioner to refer sharia cases brought to his court to the native court as a prelude to the suppression of his court. For the government had always found it tenable to abolish an ‘idle’ sharia court. In fact, qadis accused the government of even talking people of their rank into reporting less work to justify abolishing their courts. Although the British administrators knew well that the sharia system was the one at fault, they emphasized the unsuitability of el-Medani and concurred in having him transferred from Rashad. His prayer meetings and ‘penny readings’ in the market place were pointed to as not in keeping with the quiet village life in Rashad.24 His fanaticism was underlined in the story reported in which he reprimanded the Christian, Egyptian mamur (a subordinate of the District Commissioner) for allowing whisky to be drunk in his house and in the qadi’s presence.25 Furthermore, he was accused of faking cases to cover the fact that his court had very little work. In addition, he was reported as interfering with the small and scattered native authorities ‘whose customs do not accord in all respects with the sharia.’26 In sum, he was described as a

22

NRO, Civsec 42/1/2, Civil Secretary to Governor of Darfur, June 7, 1931. NRO, Civsec 42/1/2, Governor of Kordofan to Civil Secretary, May 24, 1931. 24 NRO, Civsec 42/1/2, District Commissioner of Rashad to Governor of Kordofan, May 30, 1931. 25 NRO, Civsec 42/1/2, District Commissioner of Rashad to Governor of Kordofan, May 30, 1931. The District Commissioner apparently monitored the qadi’s religious zeal. I.V.S., initials for an informer, wrote to the District Commissioner that when the Commissioner had been on a safari he saw a Nuba man sitting with el-Medani drinking tea. Sooner the Nuba man came to the informer with an authorization to be paid a sum of money of his share in an estate. From a reliable source, I.V.S. learned that the qadi asked the Nuba man to announce his Islam before the qadi would write the authorization. On professing Islam, the Nuba man was invited to have tea with the qadi. However, this incident of conversion, I.V.S. maintained, was only one of the qadi’s many conversions (NRO, Civsec 42/1/2, I.V.S. to District Commissioner of Rashad, November 21, 1931). 26 NRO, Civsec 42/1/2, I.V.S. to District Commissioner of Rashad, November 21, 1931. 23

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nuisance to all concerned and practically a foreigner in Rashad and ‘spoke something like a foreign language.’27 The British administration wanted el-Medani out of Rashad. Although the Governor of Kordofan would have tolerated for a while the continuation of the Dilling court whose reasonable qadi had been easy to deal with, he asked that el-Medani and his court should go.28 The Civil Secretary supported the Governor and recommended that el-Medani would be better employed in a post in northern Sudan.29 Notwithstanding this administrative solidarity on the local, provincial and central levels to transfer el-Medani and his court, el-Medani persisted for a while and his court remained intact. It was the Dilling court that was finally abolished.30 This disappointing outcome resulted from a change of heart the central authorities had gone through in the early 1930s regarding promoting native courts at the expense of sharia courts. We will return to this altered policy later in the chapter. However, we will touch here on aspects of this policy to complete the story of the indomitable el-Medani. When the Governor of Kordofan spoke in Khartoum to the Legal Secretary about removing el-Medani, the Governor was made to realize that the immediate removal of the qadi was neither justified nor desirable in the general interest.31 However, the transfer of el-Medani was only seriously considered a year after the commotion he had caused at Rashad.32 After seeing the Governor-General, the Civil Secretary wrote to the Governor of Kordofan about his Excellency’s decisions to close Dilling court and transfer el-Medani. He apologetically told the Governor that the decisions were modest and asked him to regard them as better than nothing. Nonetheless his Excellency apparently took the District Commissioner of Rashad to task for not making things easy for el-Medani and for keeping him on edge. 33 It was improbable that Gillan could not see that he should be the one to whom the 27 NRO, Civsec 42/1/2, I.V.S to District Commissioner of Rashad, November 21, 1931. 28 NRO, Civsec 42/1/2, Governor of Kordofan to Civil Secretary, June 7, 1931. 29 NRO, Civsec 42/1/2, Civil Secretary to Legal Secretary, June 11, 1931. 30 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, February 25, 1932. 31 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, December 4, 1931; Governor of Kordofan to Civil Secretary, November 29, 1931. 32 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, February 25, 1932. 33 NRO, Civsec 42/1/2, Civil Secretary to Gillan [Governor of Kordofan], February 25, 1932.

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Governor-General’s accusations were directed. It was only ten days prior to his Excellency’s intervention that Gillan wrote to the Legal Secretary a letter showing his strong feeling on the court and qadi of Rashad. In the letter, he made a personal appeal for the government to consider his distinguished services to the advancement of the Nuba policy that was being jeopardized by sharia courts.34 Later on, the Governor-General issued instructions to the governors calling for a halt to the campaign conducted under the guise of native administration against the sharia courts. He pointed out that the native courts and sharia courts were complementary and efforts should rather be devoted to ensuring cooperation and removing grounds for criticism. The statement of policy by the Governor-General took into account the criticism of the religious and educated circles in the Sudan that the progress of native administration might have involved retrogression in the administration of sharia, which is the standard accepted by all Muslims. The Governor-General reiterated the commitment of his government to establish sharia courts and to consider qadis as ‘Government officials with no less sense of their responsibilities and position than other Government officials.’35 The Politics of Fabrications Colonial administrators imputed bad faith to the concerns voiced by qadis and other educated Sudanese over the quality of sharia native courts would administer. The fanatics of native administration in the provinces were opposed to the qadis’ concerns to which the central colonial authorities had at least given some weight. These fanatics were too engrossed in establishing a pure form of native rule to listen and compromise. The qadis were critical of the qualifications of the local ulema appointed on native courts, the British District Commissioner’s power to decide on appeals of sharia cases heard by native courts, and the curtailment of the right of a Muslim to readily access a sharia court and its marriage registrar, maʾzūn, any time he or she wanted. Seen as the whining of an intruding, ill-intentioned class of northern-minded qadis, the British administrators rejected these criticisms. Pressed by

34 NRO, Civsec 42/1/2, Gillan [Governor of Kordofan] to Legal Secretary, February 17, 1932. 35 NRO, Civsec 42/1/2, Governor-General to all Governors, n.d.

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the central authorities, these provincial administrators would come up with an ad hoc arrangement smacking of cleverness rather than reason. Plenty of loose ends would remain dangling. To Whom the Appeals Toll? The appeal of sharia cases that had been decided by native courts was an area both the qadis and the government felt very strong about. We have already indicated how the qadis did not want the British District Commissioners, who had the overall supervision over chiefs’ courts, to have the ultimate say in matters of Muslim personal law. Incidentally, the government was not happy with this appellate aspect either. But it bowed to the mechanics of the system and kept directing District Commissioners to discuss sharia cases raised to them from native courts with sharia judges. Nonetheless, the government was not at all ready to cede appeals to the qadis where it naturally belonged. It just did not make sense to a colonialist that an ‘appeal from one native court . . . [be] tried by a second native court.’36 For the unwritten norm of Indirect Rule was that the lower authority must never be short-circuited. To entertain any complaints behind the chief ’s back would be to humiliate him (Mamdani 1996, 54). The British insistence of reviewing appeals from native courts was occasionally justified by the colonial imperative of monitoring and controlling certain ‘native’ practices. The Legal Secretary wanted District Commissioners to intervene in certain cases where slavery had been at issue such as a master defeating the claim of a slave woman to freedom by claiming her as a lawful wife. The power of appeal in these cases, he stated, should not be given to qadis when chiefs’ courts judged sharia cases. Instead, he proposed, a District Commissioner might consult a sharia official in matters of appeal of sharia cases.37 We have already seen how this appeal issue became a paramount concern of the Grand Qadi. Notwithstanding the intimidation of his British seniors, the Grand Qadi endeavored to salvage his position on appeal against the decrees of native courts on sharia cases. To prevent unbelievers having jurisdiction to review appeals of sharia cases, the Grand Qadi suggested that he be made the ‘umpire for the decisions

36 NRO, Civsec 42/A/5, from Governor of Nuba Mountain Province to Civil Secretary, May 10, 1927. 37 NRO, Civsec 42/A/1, Legal Secretary to Civil Secretary, June 15, 1927.

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relating to personal [status] matters’ issued by native courts.38 He suggested that appeals against these courts would be taken to the District Commissioner, as the chief of native administration, who would in turn forward them with the relative papers to the Grand Qadi. Likewise, the Grand Qadi would look into the cases and let the District Commissioner know his decisions. In making this arrangement for appeal against native courts on sharia cases, the Grand Qadi was avoiding being misunderstood as wanting to tamper with the government policy of the free development of native courts. For this reason he recommended these arrangements as not only recognizing the subordination of the native court to the District Commissioner, but also preventing any conflict from arising between the Grand Qadi, who operated from the capital, and native courts. Evidently, the Grand Qadi was trying to give the Muslim authority the final say in sharia matters by confining the function of the District Commissioner to passing papers between native courts and the Grand Qadi. To make the issue of appeals a moot point, the Legal Secretary suggested that the question was better formulated in terms of whether: a) the litigants had submitted expressly or impliedly to the native court’s sharia jurisdiction; b) whether the native court exceeded its jurisdiction. A District Commissioner could make this determination ultra vires without ‘any knowledge of Muslim law.’ This reformulation of the appeal question to read as a question of the consent of the parties to a sharia case and the competence of native court, in the view of the Legal Secretary, should have done away with any question of appeal.39 In 1931, the Legal Secretary was inclined to discourage District Commissioners from having any say in appeals from native courts in matters where sharia law was concerned.40 A year later he suggested that the proper course was to discuss the appeals with the qadis as a ‘step toward enlisting the sympathy and co-operation of the qadis’ courts with the native courts.’41 To preempt criticism from the intelligentsia of the country, who were up in arms against the policy of native administration, directed at the inferior sharia competence of the native courts, the government was inclined to strengthen the sharia jurisdiction and personnel of the native 38 39 40 41

NRO, Grand Qadi to Legal Secretary, January 29, 1929. NRO, Civsec 42/A/1, Legal Secretary to Civil Secretary, August 3, 1927. NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, January 31, 1931. NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, October 10, 1932.

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courts. Die-hard advocates of Indirect Rule were not persuaded. Yet the Legal Secretary was convinced that people would not have confidence in tribal shaykhs, whom he called a ‘body of amateurs,’ meddling in their sharia cases. Alternatively, he directed that ulema, who commanded respect and had a reputation for learning in religious law, should be made available to native courts. In case a tribe did not have a man of such a caliber, he stated, the government must see to it that one was provided.42 The government’s advice was that the suppression of sharia courts must go hand in hand with having ulema members of the native courts ‘whose learning in the religious law commands respect.’43 In the case of the Kababish nomads of western Sudan, the administration was convinced that it could not have found ulema to appoint to the native courts. A realistic Governor of Kordofan, under whose authority the Kababish fell, did not like the safeguard clause in the Kababish court warrants stipulating that when native courts tried sharia cases ‘there must be among the members one learned in sharia.’ The Governor had qualms that the greybeards of the Kababish ‘might not strictly qualify as being learned in the sharia, and did not want to get the sharia jurisdiction through false pretenses.’44 Two fabrications developed in order to get around this difficulty. The Civil Secretary omitted the safeguard clause from the letter authorizing Kababish native courts to try sharia cases. Instead, he settled for securing a written consent from the parties to the effect that a native court tries their case. Reiterating what the Governor of the province had said, the Civil Secretary argued that the qualification required by the clause would be hardly applicable to any possible member of the Kababish court. The omission of the clause, he maintained, would reflect the judicial reality of the Kababish in which sharia cases were settled in accordance with tribal custom in much the same way as civil cases.45 The Legal Secretary, on the other hand, was for retaining the clause to safeguard the quality of sharia law in native courts for pretty much the same reasons presented by the Civil Secretary. With a view to the fact that the Kababish chiefs had been settling family disputes according to sharia, they undoubtedly, he argued, considered themselves as learned in it. ‘I daresay too,’ he added, ‘that they are.’ Their long practice in sharia 42 43 44 45

NRO, Civsec 42/A/1, Legal Secretary to Civil Secretary, June 15, 1927. NRO, the Judiciary, TD/1.C.I, Vol. 2, Civil Secretary to Governors n.d. NRO, Civsec 1/36/97, Civil Secretary to Legal Secretary, February 11, 1934. NRO, Civsec 1/36/97, Civil Secretary to Legal Secretary, February 10, 1934.

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law ‘independently of qadis’ was sufficient qualification. The ulema intended in the indicated clause, he continued to say, did not necessarily mean those who had been through recognized courses in sharia law.46 The Civil Secretary was not impressed by this logic. He wanted the Legal Secretary to talk the Governor of Kordofan into accepting the retaining of the clause. The Legal Secretary apparently prevailed since a list of ulema members of the Kababish native courts was finally issued. Of the six members on the list, four were new appointees and the rest had already been on the court panels.47 When the government suppressed a sharia court, it established a circuit by which a government qadi could tour the area and settle sharia disputes of interested parties perceived largely as Muslim townspeople in ‘pagan’ areas. In abolishing the Dilling sharia court, the administration met the sharia requirements of this category of people by a circuit from el-Obeid, the capital of Kordofan province.48 Yet, the British administrators did not encourage establishing regular circuits for fear that it would inconvenience native courts. In 1929, the GovernorGeneral, quoted by the Legal Secretary, did not support the establishment of new circuits. Old circuits, however, would continue to exist until a province governor and his head qadi recommended them to be undesirable. District Commissioners were entrusted to notify qadis in headquarters when there were cases of parties who claimed a government qadi to review them.49 In the context of the Nuba policy designed to insulate the ‘pagan’ Nuba from Islamic influences, the qadis tended to see this as a crusade against Islam. Al-Bushi, a politically active qadi since his Gordon College days in the early 1920s, reminisced about his transfer to Rashad court in the Nuba Mountains in 1937. He was aggrieved to find that his court was prohibited from doing circuit to the outlying areas of the indigenous Nuba community. He remembered fighting hard to restore this right with the help of local traders, government officials, and Muslim Nuba local chiefs. Annoyed by his activism, the administration transferred him to a town on the Nile (al-Sahafa 21 February 1981).

46

NRO, Civsec 1/36/97, Legal Secretary to Civil Secretary, February 10, 1934. NRO, Civsec 1/38/101, List of Alim Members of Soderi Native Courts, n.d. But the file contains correspondences about the matter dated 1934. 48 NRO, Civsec 42/1/2, Civil Secretary to Governor of Kordofan, February 25, 1932. 49 NRO, Civsec 41/1/1, Legal Secretary to Civil Secretary, December 29, 1929. 47

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The feud between the two courts trickled down to maʾzūns (registrars of marriages and divorces) and court forms. Contrary to their original idea of a native court sitting under a shade of a tree, the romantics of native administration wanted to appoint maʾzūns to these courts and provide them with official forms. Obviously, the bureaucratic impulse of these British officials had taken the better of them. They became increasingly engrossed in abolishing the bad sharia court rather than promoting the good native court they had originally envisioned. The Governor of Kordofan stressed the importance of appointing maʾzūns to native courts in so far as they had been given sharia jurisdiction. However, he predicted a state of chaos in places where both a native court and sharia court, which already had its government maʾzūns, existed.50 The extremes to which the romantics of Indirect Rule were ready to go to antagonize the qadis made it imperative on the senior colonial authorities, as stated in their own idiom, to apply the brake to this aimless drifting into bureaucratizing the native court. British administrators were apprehensive of the qadis’ manipulation of their maʾzūns to undermine the policy of native administration and resist the suppression of their courts. Understandably, qadis, whose court’s survival was made contingent on keeping busy in competition with native courts, would mobilize their maʾzūns to advertise their busy schedules. The Governor of Kordofan accused the ‘Anti-Native Administration’ type of qadis of using maʾzūns ‘to show an increase of work to maintain or improve his position vis-à-vis the Sheikh [Shaykh native] courts.’ Qadis, he said, would also use their maʾzūns as propaganda agents for their courts.51 Maʾzūns had already been reported as settling minor cases and referring major ones to the qadi. G.D. Lampen, the District Commissioner of Southern Darfur, also complained that qadis’ maʾzūns had been bidding against tribal chiefs for authority over the people. In natural circumstances, he protested, none of these government maʾzūns would find a place of authority within his own people. In seeing minor cases and sending major cases to the qadi, they, he continued to say, had been imposing a strict system of supervision over the native court that was crippling them. Instead of government

50 NRO, Civsec 42/1/2, ‘Notes on Conversation with Governor of Kordofan in Legal Secretary Office,’ by the Legal Secretary, November 21, 1931. 51 NRO, Civsec 42/1/2, ‘Notes on Conversation with Governor of Kordofan in Legal Secretary Office,’ by the Legal Secretary, November 21, 1931.

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maʾzūns, he suggested that use be made of ulema previously employed by tribal heads.52 In the same vein, the Governor of Kordofan Province stated that it was not fair to submit the ‘ignorant masses to the competition of maʾzūns serving two different and possibly antagonistic jurisdictions.’ His proposal for protecting the natives from this maʾzūn feud was in fact continuing the war against the sharia court by other means. In cases where a native court was stable enough and had candidates for a maʾzūn, he recommended, maʾzūns of sharia courts should be removed. A qadi whose approved itinerary would take him to such a place, he conceded, would be allowed to accompany his maʾzūn in his trek.53 The Civil Secretary approved this line of policy proposed by the Governor of Kordofan.54 However, the government was gradually backing down from its original position on the maʾzūn issue. This change of heart became apparent to the Governor of Kordofan in a conversation he had had with the Legal Secretary. The latter was not satisfied that maʾzūns were a necessary adjunct of native courts. Further, he confessed his inability to help in this aspect of the controversy since he had formed no clear perspectives from his correspondence with the Grand Qadi. Unprepared to have a clash with the qadis, the Legal Secretary did not agree to attach maʾzūns to native courts. Instead, he advised for reaching a local solution to the problem.55 In trying to make things difficult for the British romantics of Indirect Rule, the qadis protested two forms of legitimacy native courts had wanted to have. The Grand Qadi personally took the time to object to the use of official sharia forms by a native court in Darfur province because its ʿalim called himself ‘qadi sharia.’ The Grand Qadi complained to the Legal Secretary of supplying a native court with official sharia forms. Further, he expressed his unawareness of the existence of a qadi of the name signed on the forms on the list of his employees. In calling himself a ‘qadi,’ the native court member, according to the Grand Qadi,

52 SAD, 1/f/1/5–903, Assistant District Commissioner, Southern Darfur, to Governor of Darfur, March 29, 1931. 53 NRO, Civsec 42/1/2, Governor of Kordofan to Civil Secretary, January 6, 1930. 54 NRO, Civsec 41/1/2, Civil Secretary to Governor of Kordofan, February 23, 1930. 55 NRO, Civsec 42/1/2, ‘Notes on Conversation with Governor of Kordofan in Legal Secretary Office,’ by the Legal Secretary, November 21, 1931.

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had falsely assumed an office the government had not conferred upon him. This act, the Grand Qadi continued to say, was punishable under Section 146 of the Sudan Penal Code if committed in bad faith.56 Provincial administrators adamantly upheld the right of some native courts’ judges to be called ‘qadis’ and the necessity of sharia forms to the work of native courts. The Governor of Darfur had already questioned the wisdom of not calling a sharia member of a native court a ‘qadi’ and the taboo on using official sharia courts’ forms by the native court. In trying to meet the objections of the qadi class, the central government, according to the Governor, was undermining the authority of native courts. It would be anomalous and inadvisable, he argued, to prohibit the use of the term ‘qadi’ in the case of some native administrations that were remnants of old pre-colonial emirates, and had had professional qadis for the special purpose of performing sharia work. Although the Governor of Darfur admitted providing native courts with the official forms of sharia court, he excused himself by saying that their use was intended to be temporary pending the issuing of special forms. The Governor also pointed to the anomalous situation the administration would create for native courts by prohibiting them from using special sharia forms. In operating without official forms, the native courts, he argued, would have no way to impress the gravity of their decisions or prevent forgery. Consequently, the sharia courts, he maintained, would have the better of the native courts when they had existed in the same region.57 The central authorities were dumbfounded by the succinct and legally disarming complaint of the Grand Qadi. The Legal Secretary wrote to the Civil Secretary about his old belief in the undesirability of native courts using forms of sharia courts. Also, he advised that the imposter in Darfur be called the ‘qadi of the court’ of the chief in view.58 As a result, the Civil Secretary wrote to the Governor of Darfur to stop further use of sharia courts’ forms. He advised the Governor not to distinguish too much between the sharia and civil jurisdiction of native courts to require special sharia forms for their sharia side. Sharia summons of native courts, he went on to say, could be written on any kind of paper without affecting their validity. No distinction, he reiterated, should be

56 57 58

SAD, 1/f/5/2:828, Grand Qadi to Legal Secretary, cir 1930. NRO, Civsec 42/1/4, the Governor of Darfur to Civil Secretary, April 13, 1931. SAD, 1/f/1/5:829, Legal Secretary to Civil Secretary, December 15, 1930.

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made in native courts between recording civil and sharia judgments.59 Central authorities apparently were not encouraging the printing of special sharia forms for the native courts. The Center that does not Hold The policy of fostering native courts by the romantics among Governors and District Commissioners was read even by ‘loyal, moderates, and politically unassuming class of the Sudan as an attack on Islam (Daly 1986, 391). One cannot blame them for arriving at such a conclusion because the suppression of courts, and the casual, or the irresponsible rather, manner by which the government granted sharia jurisdiction to native courts, left them with no other interpretation. In the abolition of sharia courts, these classes saw the government as breaking an old promise of not interfering in Muslim religious affairs. This policy of ‘rendering unto God that which is God’s,’ to which the sharia courts owed their existence, had always been commended by the Muslim leaders in the country (Daly 1986, 390–391). The central authorities finally began to listen to what they described as the mixed, but neither negligible nor unjustifiable, complaints of the qadis and the educated class of native courts meddling in sharia. To the chagrin of the British fanatics of the provinces, these authorities in the center increasingly accepted at the beginning of the 1930s the peaceful co-existence of the two courts. This reconsideration of policy might have come too late, and contributed too little, to the final shaping of the relation between the two courts. Encouraged by the original policy of the suppression of sharia courts, the fanatics, who had gone absolutely ‘native’ abolishing sharia courts and transferring their functions to native courts, were too mobilized and ideologized to compromise. When they did not have it their way because of the changed policy, they would sulk and drag their feet rather than address the issue fairly and squarely as a matter of policy. The central government, on the other hand, found in the early 1930s that it had to apply the brake to the wrecking speed with which those romantics wanted the suppression of the sharia courts to take place. It, of course, did not want to totally alienate the northern Sudanese

59

SAD, 1/f/1/5:832, Civil Secretary to Governor of Darfur, December 21, 1930.

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educated class, who saw the suppression of these courts as a further shrinkage in their constituency. Importantly, the government did not want to aggravate the Sufi and tribal leaders whose loyalty it had won not long ago (Daly 1986, 390–391). In the tug of war between the romantics of the administration and its ‘pragmatists’, so to speak, the policy of suppressing sharia courts came to a sudden halt in the early 1930s leaving the relationships between sharia and the native courts unresolved (Daly 1986, 389–390). In reviewing the submissions to close the sharia courts at Nyala and Kutum of Darfur, the government was having cold feet pursuing the policy of abolishing sharia courts. Although the Governor-General was sympathetic with the policy, he stated that the abolition of these courts was a delicate matter. In approaching it, he stated, local considerations should be completely subordinated to general consideration irrespective of the damage this would cause to the smooth development of the policy of native administration. These general considerations, according to the Governor-General, took into account the unfavorable comment the abolition would lead to among the intelligentsia and especially among the qadi caste. Political expediency, said the Governor-General, dictated that Khartoum should take charge in this matter.60 The center, led by Harold MacMichael, the Civil Secretary, decided to stop what appeared to be an aimless drifting in the provinces respecting the relationship of the two courts. Obviously, he came to terms with the fear of the intelligentsia and the qadi class that the rapid implementation of the native administration policy ‘may involve retrogression in the administration of sharia:’ the standard accepted by all Muslims. Although this fear was not unmixed, he stated, it was neither negligible nor altogether unjustifiable. Furthermore, he reiterated the commitment of the government to establishing sharia courts to protect right of Muslims to take their cases, if they so desired, to them. The suppression of courts, he maintained, played havoc with this original right. From then onwards, he said, he would disapprove permanent or temporary suppression of sharia courts unless ‘it has been demonstrated and accepted that this can be done without offence and for some obvious and justifiable reason.’ Importantly, he pledged continuous support to qadis as responsible officials of the government. Tact and fairness, he intimated, should guide colonial dealings with these qadis irrespective

60

SAD, 1/f/1/5:937, Civil Secretary to Governor of Darfur, May 20, 1931.

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of troublesome or bad-intentioned individuals among them. The implementation of native administration, he emphasized, should not be a guise to conduct a campaign against sharia courts. In being complementary to each other, the two courts, he stated, called for efforts to ensure their co-operation ‘and removing of grounds of criticism than to precipitating clash.’ The native courts were best served if made to progress gradually through difficulties. Rushing their evolution, he warned, would hurt them. They stood to lose by ‘allowing open and violent antagonisms to become rife throughout the country.’61 His very good words about the qadis were late but better than never: ‘The qadis on the whole are reasonable and intelligent men if treated in the right way. It does not seem to be desirable that they should come to be an out of date institution outside the general scheme of the government.’62 Importantly, he put the colonial ethnology of inventing customs by his fanatic juniors to rest by conceding the unity of sharia as a tradition. Sharia applied in natives’ courts, he maintained, was not an alternative or an independent tradition of justice. This application did not alter the fact that native courts’ sharia drew from the basic sources and worldview of sharia.63 Qadis as Rejected Collaborators Reading the national resistance variant of colonial history one is left with the impression that colonialism was condemned, by no less a power than history, to commit every major or silly mistake it actually committed. In this case of the two courts, I would argue that there could have been room for improvement. The tale of the two courts bore out Heesterman’s identification of the colonial state as a ‘facsimile state’ for creating a situation in which the colonized and colonizers impinged on each other but had their being in different worlds (Heesterman 1978:54).64

61 NRO, Civsec 42/1/2, Civil Secretary to all Governors, ‘Native Administration and Sharia Courts,’ n.d. 62 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, November 8, 1932. 63 NRO, Civsec 42/1/2, Civil Secretary to all Governors, ‘Native Administration and Sharia Courts,’ n.d. 64 R.E.F. Baily of the Sudan Service in the 1920s captured the impenetrability of these two worlds of colonialism. After endless dinner parties and dance to amuse female relations and relatives, he wrote, the colonial class would arrive at their offices in the mornings with hangovers. He continued to say, ‘Their contact with their foreign [emphasis in the original] subordinates would end when it was time for lunch [2 o’clock

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To preserve itself from the run-away effects of involvement in society, as we have seen Heesterman argues, the colonial government refused to work with the influence networks of the colonized and their leaders such a the qadi class. Indirect Rule, claimed to widen and deepen its dealing with societies, was turned, in Heesterman’s words, into categories and legal abstractions which the colonial state felt comfortable dealing with (1987, 53). True to Heesterman’s insight, the polemics of the two courts turned sharia, a hub of the fluid and multidimensional web of relations that is the substance of society, to abstract models amenable to impersonal rule and regulations (1987, 53). Consequently, the society became more parochial and fragmented because it lost much of its diffuse but effective coherence. As a result the two courts remained as strange bedfellows until the independence of the country in 1956. In the next chapter we will see how a ‘disgruntled’ sharia court, in a favorable political situation ten years into independence, vindicated itself of this colonial abuse by appropriating much of the power native courts had gained at its expense. The tale of these two courts could have ended happily ever after had the government considered the range of reactions and ideas at its disposal. A fund of these views came even from observing British administrators. Some British administrators poked holes in the colonial ethnology underwriting Indirect Rule. In connection with women and custom discussed at length below, an administrator advised that sharia, contrary to what was held against it, was more merciful to women than tribal custom. Further, an observing District Commissioner, Hamilton, in a prescriptive note he wrote on native administration drawn from his research and experience, arrived at a conclusion Mamdani has recently articulated: ‘there was nothing customary about native administration whose rights extended to family disputes.’ The latter jurisdiction, Mamdani says, was left for lineage members and elders (Mamdani 1996, 48). Hamilton, the District Commissioner of Northern Kordofan and a native administration enthusiast, suggested that greybeards’ judgments, representing the force of public opinion, were more respected in the field of domestic disputes than the views of the

in the afternoon] and not be resumed until next morning. The British went home to their charming houses on the river with their well irrigated gardens and trees while their subordinates were relegated to dismal rows of houses in the dusty back parts . . . . Even when social contacts were tried, some . . . [was done] out of a sense of duty and un-imaginative’ (Daly 1986, 356–357).

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holders of official positions such as chiefs. The latter, he recommended, ought to leave these cases to the greybeards and confine themselves to executive rather than judicial administration. Whereas the greybeards, he continued to argue, imparted blessings to their deliberations, native chiefs exuded decisions.65 Native chiefs themselves were reluctant to take up the job of resolving family conflicts. Even after endowing chiefs’ courts with sharia jurisdiction, some chiefs declined to hear cases of domestic disputes. Lampen, the assistant District Commissioner of Southern Darfur, noted that most sharia disputes before a chief ’s court were returned for settlement to the meglis (council) of greybeards Hamilton had pointed to.66 Clearly, the drive to give native courts sharia jurisdiction they never had exercised before, and were not always eager to take up, was misguided. The qadi class engaged native administration in a variety of ways, to no avail. Many a qadi might have been inclined to give it a chance. Some might have been bored to death by working in the outlying regions of the country, and would have abandoned even their courts to go back to their original homes. Others were perhaps genuinely sympathetic with the project of native administration. They could see for themselves the discrepancy between their sharia and the one in practice among the ‘natives’ as we discuss later in this chapter. One would suppose that some of them would have liked, from a professional point of view, to accommodate difference and allow fellow Sudanese sort out their local difficulties (Abu Rannat 1960, 10). Ahmad al-Hashim and Ibrahim Malik were presented by the British themselves as qadis who had ‘tactfully and wholeheartedly collaborated where collaboration is possible.’67 Qadi Malik was again described as trying hard to cooperate with the development of native administration ‘and has not hitherto shown any signs of militancy in maintaining the authority of his caste.’68 The British were impressed by more qadis. The new qadi of Dilling in the Nuba Mountains was also described in 1931, in contrast to

65 NRO, Judiciary TD/I.C.I., Vol. 2, Civil Secretary to all Governors, June 16, 1931. The Civil Secretary sent Hamilton’s note on native courts with a covering letter to all governors for a perspective on the issue. 66 SAD, 1/f/1/5:903, Assistant District Commissioner, Southern Darfur, to Governor of Darfur, March 29, 1931. 67 SAD, 1/F/1/5:734–736, District Commissioner of Northern Darfur District to Governor of Darfur, April 8, 1931. 68 SAD, 1/f/1/5:934, Governor of Darfur to Civil Secretary, May 7, 1931.

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el-Medani, the tiresome qadi whose case we have already discussed, as the ‘most charming gentleman and very sympathetically inclined to local settlement of sharia cases.’69 He was reported triumphantly by Gillan to have said he had appreciated a life of leisure in Dilling after a hard time in a central province, and that he could not understand why the government kept a sharia court at Dilling ‘as he had practically nothing to do except a few foreign executions which could be as easily dealt with from el-Obeid,’70 (the capital of Kordofan province which lies outside the Nuba region). What the qadi said was music to Gillan’s ears. Gillan was not only pleased because a man of the qadis’ rank was condemning his court, but also for the qadi’s suggestion of moving the court to el-Obeid to execute from there the little work it had. Gillan had always proposed that whatever sharia the Nuba region needed could always be well taken care of from el-Obeid. The British District Commissioners found, however, too much at fault with the sharia court system to trust working with individual qadis to forge an amicable relation with native courts. Although the District Commissioner of Rashad repudiated el-Medani, the qadi of the town, as unsuitable for work in Rashad, he hastened to say that it was the system of sharia courts that was to be blamed, not individual qadis.71 Further, the District Commissioner of the northern district of Darfur confessed to the productive conversation he had had with qadis. Yet his inability to work with collaborative men of this class came through when he wrote that these conversations had convinced him that ‘one must not hazard the future on personality.’72 The system apparently was the one in error as the British administrators saw it. These administrators, however, were not prepared to fix the system even when an opportunity had presented itself. The unreasonable tendency of colonialism to be divisive and gossipy comes through in the comments of the Governor of Darfur on the meeting between one of his District Commissioner and Qadi Abu Digin, the Inspector of the Sharia Courts. Abu Digin did not hide from Campbell, the District Commissioner of Northern Darfur, his views that all native administration was 69

NRO, Civsec 42/1/2, Governor of Kordofan to Civil Secretary, June 7, 1931. NRO, Civsec 42/6/31, Governor of Kordofan to Civil Secretary, June 7, 1931. 71 NRO, Civsec 42/1/2, District Commissioner of Eastern Jebels to Governor of Kordofan, May 30, 1931; SAD, 1/f/1/5:734–736, District Commissioner of Northern Darfur District to Governor of Darfur, April 4, 1931. 72 SAD, 1/5/1/5:935, District Commissioner of Northern Darfur to Governor of Darfur, August 4, 1931. 70

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‘retrogression to a lower stage of civilization.’ However, Abu Digin was not objecting to native courts having sharia jurisdiction as long as they had competent ulema on their panels. For the alleged dearth of ulema in Darfur province, Abu Digin suggested that the courts employ the services of graduates of al-Mahad whose students came largely from riverain Sudan. An unimpressed Governor of Darfur argued that the usefulness of Abu Digin’s suggestion was modified by the natural dislike of native authorities in western Sudan for the ‘superior’ easterners of riverain Sudan.73 He even went to the extent of stating that the lack of ulema in Darfur was due to the existence of the sharia courts staffed by these ‘Easterners.’ Under native administration, he believed, signs were already there that local ulema were emerging to remove the need for riverain Sudanese.74 As an administrator in a supposedly rational system of government, the Governor is guilty of reveling in a state of real or imagined enclaves popular in colonial ethnology. These alleged enclaves, however, had never impeded cultural transaction between Darfur and northern Sudan throughout the history of the two regions in pre-colonial times. All the Governor did was wasting an opportunity to bring together qadis, who were worried about the quality of sharia delivered in native courts, and tribal chiefs, who as Muslims, could have always been persuaded to see the point of the qadis. The Governor decided not to act on the merit of the situation. He remained the prisoner of his ill-intentioned colonial ethnology. Even MacMichael, the Civil Secretary, was not pleased with the gossipy Governor of Darfur. In a private letter, he criticized him for always presenting native courts as ‘tender growth’ that would be trammeled by sharia courts. If a native court was to work diligently to the satisfaction of its clients, MacMichael argued, the competing sharia court would fade ‘into comparative insignificance under the weight of its own unpopularity.’ In too much patronizing native courts, Darfur authorities, in the Civil Secretary’s view, lost touch with the national reality of the colonial enterprise. MacMichael hit at the heart of this provincialism when he drew the Governor’s attention to the stirring of opinion a closing of a sharia court would have caused on the national level. MacMichael was

73 74

NRO, Civsec 42/1/2, Governor of Darfur to Civil Secretary, July 5, 1931. SAD 1/f/1/5:934, Governor of Darfur to Civil Secretary, May 7, 1931.

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displeased by the fact that the Governor had had no plans to recruit local ulema, whose need to native courts was undisputed by all, to staff the native courts. To sidetrack criticism of having amateurs adjudicating sharia on native courts, MacMichael suggested the appointment on native courts of ‘some elderly gentleman who had been an innocuous qadi’ of a sharia court. The Civil Secretary would have even considered obtaining by special arrangement the service of such a qadi at an earlier stage ‘before he was decrepit.’75 However, personality counted when the British administration wanted it to count as a last resort. To ease tensions between the two courts in the provinces, the Legal Secretary emphasized the personality of the qadis rather. He expressed his preparedness to help as much as he possibly could in the transfer of any qadi who was persona non grata, and in sending a more amenable substitute.76 An agreeable qadi such as the ‘harmless qadi’ of the defunct Dilling court was suggested to replace the tiresome qadi of Rashad, el-Medani. Luck was counted on in resolving matters, too. Having no immediate solution to the Rashad sharia court to the satisfaction of the uncompromising Governor, the government hoped that by time the court ‘may gradually fade into decrepitude.’77 Provincial administrators found it imperative to reconcile to this policy of working with the sharia system on condition of having the right kind of qadis. At the conclusion of the discussion of the suppression of Nyala sharia court, the local British authorities, that failed to eliminate the court, were jubilant for the promise from the Legal Secretary to send a ‘more suitable qadi in exchange for the present Nyala qadi.’78 The Governor of Darfur had already described the hateful qadi of Nyala as a troublemaker ‘crossing swords’ with tribal and rural courts that had uncontested sharia jurisdiction.79 True to his word, the Civil Secretary sent Muhammad Abu al-Qasim, who had been selected with special regard to his qualifications, to be the new qadi of Nyala.80

75 SAD, 1/f/1/5:966, Harold MacMichael (the Civil Secretary) to Charles Dupuis (Governor of Darfur), June 7, 1931. 76 SAD, 1/f/1/5:954, Civil Secretary to Governor of Darfur, February 27, 1931. 77 NRO, Civsec 42/1/2, Civil Secretary to Governor of Kordofan, February 25, 1932. 78 SAD, 1/f/1/5:914, Civil Secretary to Governor of Darfur May 12, 1931. 79 SAD, 1/f/1/5:893-899, Governor of Darfur to Civil Secretary, April 23, 1931. 80 SAD, 1/f/1/5:488A, Civil Secretary to Governor of Darfur, June 16, 1931.

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The reluctance of the colonial administration to work with local power networks evidenced itself in the discourse surrounding the concurrent sharia jurisdiction of the sharia and native courts in el-Nuhud town, the center of the native administration of the Hamar community of west central Sudan. To consolidate the power of the native court, the British were keen to suspend the sharia court of the town when the Hamar chief was resident in the town for about three months of the year.81 They were aware, however, that the native court was not ready to take over the town en bloc. Townspeople, the argument went, would be suspicious and antagonistic if the native court decided complex estate cases.82 The administration was lucky in having a qadi open to negotiate such an entanglement. The qadi of the town was joyously reported to have said that had it not been for the higher sharia authorities, he would have turned all his work to the native court. Parenthetically, he might have liked the Hamar chief better than the British administrative policies. Encouraged by the sympathetic qadi, the Governor of Kordofan, the homeland of Hamar, suggested that the qadi should sit as an honorary ʿalim (jurist) on the Hamar court. The qadi, according to this arrangement, would nonetheless be carrying his business in his office as long as there was any to be carried out. The Governor thought this proposal might carry weight with the sharia authorities.83 In realistic terms, the chances of this proposal being approved by these authorities were minimal. First, the stipulation that the qadi in his new role should interpret sharia according to the native, Malikite code, and not the official Hanafite code, was too invasive and pedantic to sit well with the sharia authorities.84 Second, the proposal did not compromise on the issue of appeal. It did not allow any room for the two courts to work out the appeal process. The British just could not see the two courts communicating on appeals efficiently and independently without the aid of the British District Commissioner.85 Regardless, the

81 NRO, Civsec 42/1/2, ‘Note on Conversation with Governor of Kordofan in Legal Secretary Office,’ by the Legal Secretary, November 21, 1931. 82 NRO, Civsec 42/1/2, Legal Secretary, ‘Note of Discussion with Mr. Gillan,’ July 14, 1931; NRO, Civsec 42/1/2, Governor of Kordofan, ‘Note on [el-]Nuhud in Relation to Hamar Administration,’ April 25, 1932. 83 NRO, Civsec 42/1/2, Governor of Kordofan, ‘Note on [el-]Nuhud in Relation to the Hamar Administration,’ April 25, 1932. 84 NRO, Civsec 42/1/2, Governor of Kordofan to Legal Secretary, February 17, 1932. 85 NRO, Civsec 42/1/2, Legal Secretary to Grand Qadi, August 23, 1932.

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administration went ahead of its offer to compromise with the qadi court in el-Nuhud. Without waiting to hear the response of the sharia authorities, the administration revealed its plan of eliminating the sharia qadi, and the appointment of a qualified local ʿalim to the Hamar native court.86 The letter on the relation of the two courts of el-Nuhud presented to the Grand Qadi did not show a desire to consider the compromise we have seen discussed between the British administrators and the qadi of the town. The recognition that the relation of the two courts could have been resolved in an integrative fashion, thanks to the initiatives of a collaborative qadi, scared the British back into their colonial habit of rules and regulations. In the letter, the two courts were kept intact but split sharia business between them on seasonal basis. The native court was given jurisdiction over sharia cases only when it was in session in the town. The sharia court, on the other hand, would hear sharia cases for the remainder of the year. Conditions were also set for the qadi in doing business in the town. He was asked to look only into cases brought before him by consenting parties. The qadi was therefore empowered to transfer cases to the native court against the wish of the litigants if he saw fit. To appease the townspeople, the complicated estate of elNuhud merchants was to be heard by the qadi. With respect to appeals, the letter held fast to the government position that it was the District Commissioner who would hear appeals from native courts including sharia cases. However, the District Commissioner was instructed to work on the qadi’s advice on appealed sharia cases, and he might even refer them to a qadi’s court.87 In messing up the relationship between the two-court systems, the British could not complain of lack of good advice. The range of responses by collaborative or clever qadis was mature, and could have formed the basis for a robust practice of sharia in both systems. The bad hand dealt to qadis may corroborate Robinson’s theory indicated in the introduction in which he attributed decolonization not to the power of nationalism, but to the mismanagement by colonialism of the ‘collaborative bargains’ it had contracted with native influence networks.

86 NRO, Civsec 42/1/2, Civil Secretary’s comments on the correspondence between Governor of Kordofan and Legal Secretary, July 23, 1932. 87 NRO, Civsec 42/1/2, Legal Secretary to Grand Qadi, August 23, 1932.

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Indirect Rule was the colonial idea of calling off the social change colonialism had brought about in the first place. In reversing this change resulting from colonial modernity, colonial administrators were intellectually motivated by saving Africans from ‘the alienation and disorder of the nineteenth-century European experience of industrialization.’ Indirect Rule was, therefore, the political system devised to compel Africans to abide by their customary laws administered by their traditional leaders (Vaughan 1991, 109). Britain’s place in the colonies was increasingly justified by recreating the past of the country (Daly 1986, 379). Fearful of the breakdown of traditional order under colonialism, the colonialists were led in the 1920s ‘to shift course, putting greater support behind traditional authority’ (Merry 1991, 898). To put in place the few ‘disgruntled’ and ‘detribalized’ elements the two decades of direct rule had produced, customs of the original Africans were resuscitated to ‘return’ the country to supposedly the pristine pre-colonial times. The courts in this past had no ‘tables or chairs’ as deftly put by a member of the Political Service in the Sudan.88 It is noteworthy that both the colonials and the colonized pointed to this colonial retrogression. A District Commissioner in the Sudan noted rather approvingly the philosophical implication that after thirty years of direct rule ‘it has been decided to base again our administrative structure on the tribal meglis (council).’89 Baily, who joined the Sudan Civil Service in 1909 and retired in 1933, condemned the revival of tribalism as ‘oiling the wheels of a disintegrating machine’ by people who

88 NRO, Judiciary TD/1.C.1, Vol. 2, Civil Secretary to all Governors, 16 June, 1931. The Civil Secretary sent a note written by J.A de Hamilton on Native Administration, for the Governor’s information. K.K.D. Henderson, a thoughtful administrator with numerous writings on his colonial experience in Sudan, described in 1982 the extreme advocates of Indirect Rule as the ‘maniacs of Native Administration.’ These maniacs regard it as a splendid thing and that everybody ought to sit ‘under a tree and no sheikh [shaykh] should have a table to write upon’ (Lavin 1991: Vol. 1, 34). Undoubtedly, Henderson was quoting Hamilton’s note on native administration passed out by the Governor-General to governors of provinces, down to the table thing. Interest in custom and indigenous court procedure led to the production of the studies such as the one on Arab court procedure (Reid and Maclaren 1936). 89 NRO, Judiciary TD/1.C.1, Vol. 2, Civil Secretary to all Governors accompanied by a note written by Hamilton on Native Administration for their information, June 16, 1931.

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had deplored the rising restive and revolutionary spirit of the educated classes (Daly 1986, 378, 380). A qadi, as noted earlier, described this change of heart as ‘retrogression to a lower stage of civilization.’90 Sharia, a literate unitary tradition of Muslim, colonized natives, constituted an anomaly to Indirect Rule whose judicial system was a bipolar affair. In this system, customary courts of chiefs settled natives’ disputes. Non-natives went to civil courts to solve their disputes. Concomitantly, the populations of the distinct tribes in the colony were not seen as candidates for a single customary law for all natives. Instead, they lived by as ‘roughly as many sets of customary laws as there were said to be distinct tribes’ (Mamdani 1996, 110). As a national law cutting across tribal boundaries, sharia was thus viewed as a wild card that could have jeopardized this bifurcated arrangement. Administrators did not like to see sharia crowding Muslim tribal custom. The intervention of sharia courts in family disputes in tribal areas, argued Lampen of Darfur Province, would only burden a hitherto simple process. The rigid rules of sharia, he continued to say, had neither the initiative nor the knowledge of the inner history of the parties to make them settle by compromise in the same way as the native court could.91 Furthermore, one can trace to the bipolarity of law in colonies the uncompromising stance of the British in the Sudan not to give qadis any authority on appeals of sharia cases from native courts. The tribal chief was made answerable only to the higher authority of the British (Mamdani 1996, 54). The British classified sharia with customary laws where the bipolar judicial system could be installed without impunity. In Nigeria they removed all ambiguity by providing that ‘native law and custom includes Moslem Law’ (Mamdani 1996, 111). The status of sharia in colonial Sudan was judged differently though. The British are credited in scholarships for not reducing sharia to a ‘variety of native law and custom’ (Anderson 1969, 44; Flueher-Lobban 1987, 52, 240).92 Those who argue that the British did not shortchange sharia have focused on the central

90

NRO, Civsec 42/1/2, Governor of Darfur to Civil Secretary, May 7, 1931. SAD, 1/5/1/5:903, District Commissioner of Northern Darfur to Governor of Darfur, March 29, 1931. 92 More legal scholars and practitioners are inclined currently to concede that sharia was reduced to a customary law during the colonial period in the Sudan (al-Rashid 1987). Galal A. Lutfi, the Chief Justice in 1991, argued that appointing ulema on the native courts amounted to reducing sharia to customary law (Interview with Lutfi, Khartoum, September 1991). 91

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structure of the court system rather than the mutations of this structure under the policy of Indirect Rule. The British attitude toward sharia, however, is best appraised against their native administrative politics. In stipulating that the sharia jurisdiction of native courts was the one modified by custom, the British were a breath short of the Nigerian provision.93 Sharia authorities stood their ground regarding the unity of sharia in terms of both its substantial law and personnel. The Grand Qadi had already questioned the use of ‘native’ in relation to rules that had been laid down by Qur’an. Additionally, he added, if ‘natives’ were what the government had been looking for, why were the qadis of sharia courts discounted.94 This colonial reduction of sharia affected it adversely. Instead of a unitary, codified tradition that has been adept in handling customs, sharia disappeared in a plethora of modifying local ‘tribal’ cultures. The suppression of sharia court during the experiment of the native administration era was intended to deny the sharia tradition the hold of an authoritative center. District Commissioners soon realized that looking for native sharia was misguided or counterproductive. Natives not only made no distinctions between ‘custom’ and ‘sharia,’ but also would be shocked if they were told about the existence of a discrepancy between the two. Although the government identified the sharia of the native courts as the one interpreted by ‘tribal’ custom, it was embarrassed, in the light of findings of its District Commissioners, to admit that its policy was premised on a variance between tribal custom and Islam. As long as the natives themselves considered that they were acting in accordance with sharia, the government thought it shocking to tell them that they were not doing so. In avoiding the identification of the sharia law of the native courts as the one interpreted by native custom, the government was forestalling the criticism that Islam was being set aside.95 Also, the British administration concluded that natives made no distinction between civil, criminal, and personal laws. For them, they were all sharia. Instead of sobering the fanatics of Indirect Rule, these field realizations of the unity of sharia led them to two fabrications. First, they

93 NRO, Civsec 41/1/2, Governor of White Nile to District Commissioners, December 17, 1930. 94 NRO, Civsec 41/1/2, Legal Secretary, ‘Note: Sharia Courts and Native Courts,’ February, 16, 1932. 95 NRO, Civsec 42/1/1, Legal Secretary to Civil Secretary, June 15, 1927.

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argued that the government should stick to giving sharia jurisdiction to native courts on the grounds that natives understood sharia to include all laws.96 Second, the government, they reasoned, should relieve itself from defining more closely what was ‘custom’ and ‘sharia’ were as long as the people themselves made no such a distinction.97 Had the government taken sharia a little bit more seriously and earlier than it actually did, it could have realized that the relationship between sharia and custom has always been central to Islamic legal discourses. Sharia recognizes custom as a source of law provided it does not contradict a point mentioned in the Qur’an or the traditions of the Prophet. Furthermore, Muslim jurists were known to consult with local tradesmen and professionals about customs before issuing legal opinions dealing with their business (Flueher-Lobban 1987, 11–12). Politics as a Form of Occultism The policy of native administration was an exercise in colonial politics as a form of the occult. In this practice, political spaces are not appreciated in their fluidity and mutual impact on one another. Instead a space is either ‘exorcised’ to rid body politics from it, or invoked to let in. In raising and adopting the qadis class after the destruction of the Mahdist state, the government envisioned that qadis would be the new popular ‘orthodox’ religious leaders replacing the ‘fanatic’ tribal fekis who had fuelled the Mahdist insurrection. In less than two decades, the qadis, and the educated class at large, fell from favor. The nationalism of this class aroused the apprehensions of the British about their forward liberal policy of the preceding period causing them ‘to pause . . . if not to shrink back’ (Atiyah 1946, 163). For its incurable nationalism, this class was accused of possessing the colonized evil eye because of an attitude of mind ‘which in its lowest form is envy, and its worthier form a sense of thwarted aspiration and romanticism’ (MacMichael 1934, 269). The qadis were especially repudiated. The British administrative class had not a single good word about the qadis seen as the archenemy of Indirect Rule. As early as 1929, Davies, a fanatic of native administration, saw qadis, whose courts had been obstacle to devolution, ‘as possible

96 97

NRO, Civsec 42/1/2, Governor of Kordofan to Civil Secretary, April 13, 1931. NRO, Civsec 42/A/1, Legal Secretary to Civil Secretary, June 15, 1927.

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agents of Mahadism or even as left wing’ (Daly 1986, 390).98 His line was unrelentingly the abolition of sharia courts in all areas where they had overlapping jurisdiction with native courts (1986, 390). Gillan, the Governor of Kordofan, had already identified the category of qadis who were critical of the native courts as the ‘Anti-Native Administration type.’99 With the implementation of Indirect Rule the once hateful tribal fekis were in high demand. The government was scanning the country for them to serve on native courts. Gone were the days immediately after the conquest in 1898 when a feki would have been arrested for carrying spears because a feki and spears, according to the government, were a mixed bag. Although the British resuscitated tribal fekis to sit on native courts to meet objection of qadis to ignorant chiefs adjudicating vital matters of sharia, they resented the intervention of qadis and the educated class in discussing native administration.100 Davies saw the elite class as having no business meddling in the affairs of native administration. In Northern Kordofan, it was stated, tribal fekis had always settled sharia cases, and the existence of a sharia court had not caused a striking decline in their work.101 N.G. Davidson wanted to see the Qadi School of Gordon College abolished. Future ulema appointed to the native courts, he proposed in 1929, should be graduates of local Qur’anic school where they would have received the type of education which corresponded to the governments’ ideas of native administration (Daly 1986, 389). Both nationalist and colonialists, in varying degrees, compounded the difficulties of devising a working relationship between the sharia and native courts. They sometimes failed to see eye-to-eye on issues that, on second thoughts, could have been resolved amicably and for good. In this specific case, the parties, who agreed that native courts needed to have knowledgeable members on their panels to adjudicate sharia issues, could have reconsidered the modernization of the religious seminary, al-Mahad al-ʿIlmi of Omdurman. Although nationalists and

98 Davies converted to radical Indirect Rule in 1924 after his training visit to Nigeria, the breeding ground of the Lugardian form of this form of administration (1957, 166–169). 99 NRO, Civsec 42/1/2, Governor of Kordofan to Civil Secretary, January 6, 1930. 100 NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, June 15, 1927. 101 NRO, Judiciary, TD/1.C.I, Vol. 2, Civil Secretary to Governors, n.d.

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colonialists subscribed to different plans of modernizing al-Mahad, they never came to realize it. As noted earlier, the Gordonites, who were staunch opponents of Indirect Rule (Mahgoub 1945), protested granting sharia jurisdiction to the ignorant shaykhs of the native courts. To address this concern, the government was not averse to employing graduates of al-Mahad seminary as ulema on native courts. For it had already defined an ʿalim as the one who had the ʿĀlimiyya certificate (a twelve-year course of studies in Islam and the Arabic language) from al-Mahad.102 Consequently, the modernization of al-Mahad was raised in a meeting of province governors with the central government in an attempt to meet the criticism of the educated class of native courts, and to provide jobs for the malcontent Mahadites with certificates and no jobs.103 The prejudice of the Gordonites against the Mahadites imposed itself on the meeting. To accommodate both the critical Gordonites and the unemployed Mahadites, the meeting proposed the transfer of the Qadi School of Gordon College to a reformed Mahad to train mosque officials, ulema for native courts, and government qadis. The training of qadis had always been the prerogative of Gordon College since its establishment in 1902. On second thoughts, the meeting concluded that this transference was politically undesirable as ‘being bound to be looked on by the intelligentsia [the Gordonites] as retrograde and derogatory to the status of official sharia.’104 The price paid for this missed opportunity to modernize al-Mahad was immense. The Gordonites especially declined an opportunity to engage al-Mahad in their national scheme of modernity. They had apparently neither forgiven the traditional and errant al-Mahad, viewed as a colonial plot to retard Sudan, nor developed any capacity to modernize it out of its anachronism. Al-Mahad therefore remained exiled outside the modern system of education (characterized by preparing a graduate for a government job) even after the independence of the country in 1956.

102 NRO, Civsec 42/1/2, notes of correspondences and discussions between the Governor of Kordofan and the Legal Secretary about widening the jurisdiction of Hamar native court, July 24, 1932. 103 NRO, Civsec 42/1/2, Legal Secretary ‘Sharia Courts and Native Courts,’ February 6, 1932. 104 NRO, Civsec 42/1/2, ‘Sharia Matters and the Mahad,’ minutes of a meeting of the Civil Secretary, the Legal Secretary, and Governors of most northern provinces, December 14, 1932.

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Aggrieved, al-Mahad took its modernization in its own hands since the late 1950s. In 1965, it evolved into the Omdurman Islamic University to the chagrin of the Gordonites. In a favorable political situation in 1969, the modernists paid the Omdurman Islamic University back by reducing it to its former al-Mahad size. In 1975, the institution was made a university again. The dynamics of this costly feud of modernity and tradition will be discussed at length in our concluding chapter. Wishing the Towns Away Towns that evolved around administrative centers in colonial Sudan became an anomaly in the otherwise mass of natives perceived by colonialist to be homogenous and held together by well-defined customs. Since townspeople, such as ‘detribalized’ merchants and government employees, fell outside the jurisdiction of the native courts, the legal apparatus that would take care of their sharia litigation became an administrative problem. As early as 1927, Gillan, the Governor of Kordofan, suggested the formation of courts of elders to hear sharia cases of townspeople instead of sharia courts.105 Although the Governor of the Nuba Mountains saw the point of the existence of sharia courts in towns to deal with native traders and government employees, he could not see the need of Nuba towns to the full service of sharia courts in the context of the Nuba policy alluded to earlier. Traveling or advising qadis, he argued, would best suit the purpose.106 The existence of sharia and native courts side by side in rural areas drew a great deal of criticism. Colonial administrators were especially irked by the opportunism of the population of these emerging towns. Urban fuzziness, they maintained, encouraged litigants to take advantage of the plethora of laws and court systems at their disposal. The detribalized, non-Muslims ‘Negroids’ of theses towns came under scrutiny. They were suspected of claiming to be Muslims to use sharia courts to obtain property by inheritance, or to prove rights over women in their indigenous, ‘pagan’ communities which adhered to customs different than Muslims’ sharia.107 In 1931, the Governor of Kordofan saw the existence of Rashad and Dilling sharia courts as open invitation ‘to the malcontent

105 106 107

NRO, Civsec 42/A/1, Legal Secretary to Civil Secretary, June 15, 1927. NRO, Civsec 42/A/26, Governor of Nuba Mountains to Civil Secretary, May 10, 1927. NRO, Civsec 42/A/2, Governor of Upper Nile to Civil Secretary, July 28, 1927.

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to break away from tribal custom and discipline.’ Lying in contiguity to the pagan population, he continued to say, these courts would be a source of constant friction with the native authorities, a development in direct opposition to all the principles of Nuba policy.108 Fear that sharia courts would be preyed upon by disgruntled litigants loomed large. The Governor of Darfur pointed to the abuse of justice resulting from the continued existence of sharia courts in a native sphere of a chiefs’ court. A party to a conflict, he contended, would tire his or her adversaries into submission to his terms by bringing summons from a sharia court that would be miles and miles away. In not wanting to make this journey, adversaries would reluctantly come to terms with the man or woman with the summons. Such cases, the Governor argued, could have been settled according to custom and in a local meglis (council) to the satisfaction of all concerned.109 Sharia courts, according to the Legal Secretary, were needed only by ordinary persons in case they became disgruntled with the decisions of their tribal authorities and wished to cause trouble and annoyance to their adversaries. It was not uncommon, he stated, that parties would go to the qadi without even mentioning that their case had been settled by a native court. He concluded that to the ‘ordinary person the sharia courts are reasonably useful.’110 Gillan, the Governor of Kordofan, pointed to the strategy of disgruntled litigants in playing one court against the other. In being decided against by the Malikite (the school of Islamic jurisprudence popular in the country) native court, the disgruntled would go the Hanafite (the school of jurisprudence adopted in official sharia courts) sharia court hoping for a better turn out.111

108

NRO, Civsec 42/1/2, Governor of Kordofan to Civil, June 7, 1931. SAD, 1/F/1/5–934, Governor of Kordofan to Civil Secretary, May 7, 1931. 110 NRO, Civsec 42/1/2, Legal Secretary, a note on ‘Sharia Courts and Native Courts,’ February 16, 1932. Unlike the romantics of Indirect Rule who believed that tribal people were tradition-bound and would be satisfied to take their family dispute to native court, Abu Rannat sees the ‘natives’ as strategists, and legitimately so, who would use the system to their advantage. He concludes a discussion of the problem of the conflict of sharia and custom saying, ‘Thus it does not necessarily follow that, where there is a conflict between the sharia and what are said to be customs by the Court officials, the people will necessarily prefer their cases to be decided by custom.’ He rightly points out that people prefer one solution in some cases and another one in other cases (1960, 12–13). 111 NRO, Civsec 42/1/2, Governor of Kordofan to Legal Secretary, February 17, 1932. 109

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chapter two On the Authority of Colonial Ethnology

The removal of courts in four small towns in Darfur and Kordofan in the scheme of suppressing sharia courts was the subject of considerable correspondence between the romantics of Indirect Rule in the provinces, and the central colonial authorities who had begun having second thoughts on the speed and direction of the implementation of native administration. The romantics ganged up to make the case for the removal of these courts. They were out to get the sharia courts no matter what. Rather than being humbled by their ignorance of sharia, they were emboldened to entertain some rash views about it based on amateurish and self-serving colonial ethnology. They were also not averse to bribe the government into approving the removal by drumming the economy of suppression. All said, the tricks to cover up their suppressing tracks bordered the bizarre. Lampen, the District Commissioner of Southern Darfur, was convinced that the Nyala native court would never develop the full authority required by a native court so long as sharia cases were excluded from its jurisdiction.112 In the Nuba Mountains, inhabited by Muslims and ‘pagans,’ the elimination of sharia courts was intended to buttress Nuba culture against ‘bastardization’ by Arabs and Muslims. The Governor of Kordofan, Gillan, said that the existence of sharia courts in the ‘pagan’ Nuba area ran counter to both the drive to develop native administration and, more importantly, the evolution of the Nuba people on their own cultural lines as against their Arabization and Islamization.113 In addition to the standard argument of giving native courts a breathing space, sharia courts in Darfur were earmarked for elimination because their alleged ‘orthodoxy’ did not sit well with a prevalent, paganized popular Islam of the masses.114 To this effect, certain measures were introduced to restrict the sharia jurisdiction of the qadi of Nyala town. To allow for the development of native courts unhampered by

112 SAD, 1/F/1/5:903, Assistant District Commissioner, Southern Darfur, to Governor of Kordofan, March 29, 1931. 113 NRO, Civsec 42/1/2, ‘Notes on Conversation with Governor of Kordofan in Legal Secretary Office Reviewing Sharia /Native Administration Situation,’ November 21, 1931. 114 For an original exposition of the concept of popular Islam, defined as a depository of pagan survivals, see Trimingham (1965, 108). For a critique of the concept, see Ibrahim (1989).

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orthodox sharia courts, the qadi of Nyala was made to cease jurisdiction in Kas town, which was put under the jurisdiction of the Emir of Zalingi who had had historically his own local qadi.115 The popular excuse of avoiding subjecting rural Muslims to orthodox sharia was also made for the abolition of the sharia court of Kutum, the headquarters of Northern Darfur. The District Commissioner of the region proposed the withdrawal of the sharia court in Kutum on jurisprudential grounds. Its Hanafite code, he argued, was at variance with the customary sharia law amongst the population. Also, some of this population, he said, harbored relics of heathendom and Christianity. If there was nothing bigoted in their Islamic faith, he continued to say, there was nothing objectionable in their concurrent customary codes. The native court, except in Kutum town where it had no jurisdiction, he added, adequately dealt with sharia disputes.116 The Governor of Darfur was supportive of his District Commissioners and wrote to MacMichael, the Civil Secretary, about the necessity of getting rid of the sharia courts at Nyala and Kutum of Southern and Northern Darfur, respectively. These two courts, he said, were quite out of place and hamper the development of native administration.117 The Governor impressed upon the Civil Secretary that the wisdom of the abolition of these two sharia courts would be best appreciated as a conclusion arrived at simultaneously and independently by two experienced District Commissioners in widely separated districts.118 The fanatics of native administration would stop short of nothing to dismantle a sharia court. Distressed by the lukewarm attitude the central administration displayed in executing its original plan of Indirect Rule, they nonetheless would not take ‘no’ for answer. They would retreat from a cherished position far enough to salvage a fragment of authority for the native court. For example, they would ask for rezoning of an area to take a few miles out of the jurisdiction of a sharia court. Additionally, they would bribe the center into buying the suppression of a court parading the savings that could have brought. All tricks in the book of bureaucracy were tried to keep the sharia court in check.

115

NRO, Civsec 42/1/2, ‘N.A. [Native Administration] vis-à-vis Sharia,’ July 24, 1932. SAD, 1/f/1/5:734–736, District Commissioner, Northern Darfur District, to Governor of Darfur, April 8, 1931. 117 SAD, 1/f/1/5:879, C.G. Dupuis (the Governor of Darfur) to Harold MacMichael (the Civil Secretary), April 2, 1931. 118 SAD, 1/f/1/5:910, Governor of Darfur to Civil Secretary, May 7, 1931. 116

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Platitudes and euphemisms were employed to sugarcoat a suppression of a sharia court. Rezoning jurisdiction areas of the sharia and native courts of Nyala was frugally negotiated between the central authorities and the Governor of Darfur. The Civil Secretary proposed that the Nyala native court be moved few miles out of the town to evade a conflict of jurisdiction with sharia court. The Governor of Darfur did not like the proposal because it would produce, in his view, an impossible situations vis-à-vis the qadi. To make his position on closing the sharia court palatable to the reluctant central authorities, he suggested that its removal ‘might be called temporary and experimental with a view to reconsideration of position in few years time.’119 Lampen, The District Commissioner of Nyala, suggested that in case that the removal of the Nyala sharia court was going to take a long time, the qadi might be given leave and the post left vacant.120 The Civil Secretary was not amused by the tricks his Governor wanted to play on the sharia court. He wrote back to him saying the removal would deceive no one and make the administration lose the merit of straightforwardness in the eyes of the native world. He continued to say that this temporary removal would excite much the same criticism as a final one. Native administration, he cautioned the Governor, faced its gravest danger in the rushing of things that excited organized hostility to the British administration. As a consequence, the administration, he argued, would have to make formal and binding concessions that could have been unnecessary otherwise. Finally, he directed the Governor either to develop the native courts to compete openly with qadis in family disputes until they tired the clerics out of business, or engender a reasonable spirit of cooperation between native authorities and qadis. He indicated to the Governor that other parts of the country had struck a rapport by appointing ex-qadi personnel on native courts.121 Nyala sharia court survived what the Civil Secretary called the jamming down of Darfur authorities on the accelerator of Indirect Rule. Rather, it was the native court that was partially eliminated by withdrawing its sharia jurisdiction to the great satisfaction of the qadi

119

SAD, 1/f/1/5:910, Governor of Darfur to Civil Secretary, May 7, 1931. SAD, 1/f/1/5:903, Assistant District Commissioner, Southern Darfur, to Governor of Darfur, March 29, 1931. 121 SAD, 1/f/1/5:913, Harold MacMichael (the Civil Secretary) to Charles Dupuis (the Governor of Darfur), May 9, 1931. 120

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class.122 Undaunted, Lampen, the District Commissioner of Southern Darfur, was scurrying to save some of this jurisdiction when the court was holding sessions in various suburbs outside Nyala town.123 The romantics of Darfur must have sighed in partial relief when this much of the jurisdiction was finally granted.124 The fanatics of Indirect Rule went to great lengths to argue that native administration stood on the right side of administrative thriftiness. The District Commissioner of Northern Darfur attempted to bribe his Governor into the cost-effectiveness of suppressing the sharia court of Kutum. The saving from removing the court was estimated to be 2,000 Egyptian pounds in 1927 (Daly 1986, 389). The District Commissioner suggested that this money would be ‘set off against resultant economies in the Legal Department budget.’125 The economy excuse assumed a passionate turn at the hands of the Governor of Kordofan who had been holding fast to his policy of suppressing sharia courts in the Nuba area to protect the local culture from Islamic influences. He was disturbed by the fact that the government, for political expediency, would not reduce sharia personnel even during the financial stringency of the early 1930s that had led to widespread retrenchment of government officials. In going along with the government’s policy toward the qadis anyway, the Governor suggested that one of the qadis of Rashad or Dilling could be promoted to be the Deputy Province qadi and be moved to el-Obeid, the province headquarter. In appearance, he argued, this would increase the qadis’ sharaf (honor) but move him out of the way of native courts in the Nuba area. ‘I cannot say that,’ the Governor continued to argue, ‘the post [in el-Obeid] is essential but it is not less essential and much less detrimental than either that of Dilling or Rashad.’126 The Civil Secretary agreed to transfer el-Medani of Rashad to either el-Obeid as a deputy of the province qadi, or to a riverain post.127 The Dilling sharia court was ultimately closed in 1932.128

122

SAD, 1/f/1/5:914, the Civil Secretary to Governor of Darfur, May 12, 1931. SAD, 1/f/1/5:1004, the Governor of Darfur to Civil Secretary, June 26, 1931. 124 SAD, 1/f/1/5:103, Acting Civil Secretary to Governor of Darfur, July 23, 1931. 125 SAD, 1/f/1/5:734–736, District Commissioner, Northern Darfur District, to Governor of Darfur, April 8, 1931. 126 NRO, Civsec 42/6/31, Governor of Kordofan to Civil Secretary, June 7, 1931. 127 NRO, Civsec 42/1/2, Civil Secretary to Legal Secretary, June 11, 1931. 128 128. NRO, Civsec 42/1/2, Legal Secretary to Civil Secretary, February 25, 1932. 123

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chapter two The Custom of the Patriach

The jinni of change set free by the breakdown of the traditional order in Africa caused the colonialists to have second thoughts about their mission. Litigious women weighing their predicament and options at a tumultuous time signaled the dissolution of this order in great part. Recourse to custom by colonialists denied them access to modern courts and laws. The larger picture of this colonial moral surrender in Africa is carefully described by Sally Merry, based on the seminal works on colonial law by Martin Chanock (1985) and Sally Moore (1986): Both African men and British District Officers gradually came to agree that women were getting out of control and that the authority of parents and husbands was being dangerously undermined. Magistrates also became concerned about the declining authority of chiefs and the erosion of bonds of kinship under the onslaught of new ideas of individualism. Women who had flocked to the courts for protection against abusive husbands found the courts more interested in preserving customary marriages. (1991, 899)

This quest for custom as monolithic and ungendered has been noted elsewhere to lead to the entrenchment, or invention, of colonial patriarchy in Africa (Mann and Roberts 1991, 25). In southern Africa ‘male elders took advantage of colonial officials’ quest for ‘ “customary” regulations of reproduction to entrench patriarchal power’ (Cooper and Stoler 1997, 25). The colonialists provided Africans, who appeared to have no respect for their customs, with a customary law of a sort. The Ndebele horrified the British commissioner for not behaving the way they were supposed to. The ‘tribe,’ according to a British administrator, lived in a state of anarchy in which old vital, essential laws and customs were either forgotten or swept away. Their sexual laxity was especially shocking to the commissioner: ‘[A]nd, horror of all horrors,’ he said, ‘far from a women being kept in place, a girl may choose whom she likes, when she likes, and often as she likes’! (Mamdani 1996, 81). The Ndebele were therefore made to adopt a Zulu native code on the assumption that the customs of the Ndebele and Zulu are absolutely the same in this country. The Ndebele chiefs were in no mood to dispute the code that allocated to them a range of powers (1996, 81–82). In putting ‘tribal’ women in the Sudan under the mercy of custom, the British had actually subjected them to a law that is far inferior to sharia. Although patriarchy, defined as the solidarity of men to dominate women

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based on the marriage contract, grants women limited, but more reliable, protection as daughters and sisters more than wives, it would not allow them to resolve family disputes outside the confine of a custom it both establishes and interprets. Customs are known to diverge, and sometimes remarkably so, from sharia law in certain communities and respecting certain rights. Unlike sharia, customs disinherit women in the understanding that the ultimate responsibility for a woman and her minor children rests with her family. In these communities, women, who would prefer to have their marriage life, and their life as divorcee, guaranteed by the solidarity of the patriarchy rather than by an unpredictable husband, were often reluctant to claim their fair sharia share of a family inheritance. A man was astounded by a qadi’s order to give his sister an item of her inheritance. In total surprise, he retorted that ‘the ruling was not Islam as they knew it but an alien rule imposed by the government in Khartoum’ (Osman 1985, 136). The government was oblivious of what to expect when it stipulated that the sharia law to be applied by native courts was the one modified by custom. Only after making this determination did it direct District Commissioners to question tribal elders to figure out what that might mean for them.129 However, the government had been cautioned as early as 1927 that when native custom diverged from the Islamic law applied by the sharia courts, the latter would be viewed as more just.130

129

SAD, 1/f/1/5:903, Assistant District Commissioner, Southern Darfur, to the Governor of Darfur, March 29, 1931; NRO, Civsec 42/1/2. Governor of White Nile Province to District Commissioners, December 17, 1930. District Commissioners were asked to distinguish between sharia cases usually dealt with by customary courts, and those that are dealt with by sharia court before the implementation of Indirect Rule. This determination was needed to exclude from warrants of native courts jurisdiction of domestic cases usually heard by sharia courts, NRO, Civsec 42/1/2, Civil Secretary to Legal Secretary, June 6, 1927. 130 NRO, Civsec 42/1/2, Governor of Nuba Mountains Province to Civil Secretary, May 10, 1927. For a classic presentation of the divergence between custom and sharia see Abu Rannat, 1960. Research on customary law in the Sudan, however, stands to benefit from recent studies in the anthropology of law animated by the notion that customary law is an invented tradition shaped by the complex interactions of the colonizers and the colonized. The notion is fully developed in Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia, Cambridge: Cambridge University Press, 1985; Laura Nader, ‘The Crown, the Colonialists, and the Course of Zapotec Village Law,’ in June Starr and Jane F. Collier, eds., History and Power in the Study of Law: New Directions in Legal Anthropology, Ithaca: Cornell University Press, 1989 and Moore, Social Facts and Fabrications: ‘Customary’ Law on Kilimanjaro. 1903–1980, New York: Cambridge University Press, 1986.

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For example, among the Humur of Kordofan inheritance is normally distributed at family gatherings in an informal manner, not in strict accordance with sharia rules (Abu Rannat 1960, 12). Women were, of course, shortchanged in this assembly of the patriarch. The alliance of convenience between colonized and colonizers men took a bizarre turn when Moore, an eccentric District Commissioner of Kutum of Darfur Province, allowed a Muslim chief to marry women in excess of the four wives already his according to sharia law. In reversing the ruling of a court that found the marriages objectionable and illegal, the District Commissioner stated that the custom had modified the Islamic law (ʿAmir 1979, 93; Bedri 1961: Vol. 2, 242–243; Osman 1985, 137).131 Sharia courts led the way in women’s rights against the custom of the patriarchy. Even local ulema on native courts, constrained as they were, found for women on sharia grounds against the custom of the patriarch. In the case Heir of Ahmed Khidir Nugud v. Heirs of Neima Khidir, sharia was invoked in a civil case to give inheritance to two women denied that right by customary law in the Northern Province (Farran 1959, 109–111). Abu Rannat, the Chief Justice between 1956 and 1964, tells of a Muslim Baggara community that did not recognize the doctrine of the estate of a married woman. On marriage, her property passed to her brothers absolutely contrary to the rules of sharia. This appropriation of a sister’s property is seen as an additional investment in her protection by the patriarchy. Customarily, the patriarchy is responsible for even the payment of damage to the aggrieved party if their woman committed tort. An ‘alim ruled against this custom in a native court because it was contrary to sharia. The custom was brought before the Province Council and was declared contrary to justice (Abu Rannat 1960, 11). Another custom of the Baggara community decrees that a divorced woman whose ex-husband dies before her ʿidda132 is over, gets no share in the inheritance. Women who contested the custom to a native court were granted their share by an ʿalim member of the court itself (Abu Rannat 1960, 11–12). A sharia court also found a practice connected with dowry in western Sudan unconscionable. As part of dowry, a wife in this region was given animals such as cows or specific rights to them. According to this

131 For a rather critical profile of Moore, the District Commissioner who authorized these marriages, see Najila (1964, 77–84). 132 See footnote No. 46, Chapter 1.

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custom, a wife was only entitled to ownership of the animals if she gave birth to a child. Otherwise, she was entitled only to the usufruct rights: milk. A woman who bore a husband no child sued him for failing to pay her this form of dowry. In an entangled argument, a sharia court endorsed the customary practice but rejected its patriarchal stipulations such as bearing a child. The court founded for the woman in strict sharia terms (Fluehr-Lobban 1987, 14–15). Qadis, on the other hand, have always justified even the most repugnant of their laws such as bayt al-ṭāʿa, the compulsory restoration of the wife, as the right antidote to patriarchal impositions and compulsions. Sometimes spouses, qadis argued, would really want to go back to each other. It would be the kin who would be unwilling to allow the reconciliation for reasons that had little to do with the marital relationship of the couple. A forceful return of the wife would especially save the woman from appearing to disobey her family. Qadi Kamal al-Din told me of a case in point where he sensed from the court deliberations that it had been the families that were standing between the reunion of the married couple. Having arrived to this conclusion, he asked the families to clear the court and retained the husband and wife. He turned to each of them asking if they had wanted to be together, and both replied in the affirmative. He then asked his usher to call a cab at the back door of the court to carry the couple to their home at the court expense. When the two had already gone, he called in the families and told them about his decision after lecturing them on marriage as a completion of one’s religion according to Islam.133 Patriarchy stalked even the most progressive laws qadis had legislated to give women the right of tacit or overt consent to marriage. Sharia Circular 54, 1960 issued to this effect, was circumvented by the culture of patriarchy. The maʾzūn, entrusted by the court to make determination of consent, would be embarrassed to even ask to be taken to the women’s quarter to interview the bride. An unwilling bride, in Dina Osman’s words, needs enormous courage to walk into the awesome gathering of men to declare her disapproval. Nonetheless, the Sharia Circular proved a liberating force for women who took it up even in remote villages in the country. Also, it deterred patriarchs from applying too much pressure on a daughter who does not like their choices.

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Qadi Kamal al-Din, interview in May, 1991, Khartoum.

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A patriarch, Osman argues, would carefully avoid being humiliated by daughters appearing in court contesting his decisions (1985, 130). Before the colonial recourse to native administration in the late 1920s, sharia courts had apparently been discovered by women aggrieved by the custom of the patriarch. Litigious, assertive women reached out even to British District Commissioners in places where sharia courts had not existed past formal and informal tribal mediation. Davies was astonished in around 1920 to be asked to look into domestic disputes by a chief of a nomad Arab community. Aggrieved women apparently wanted their cases heard by other than the greybeards of the patriarchy. The chief openly said to Davies that he did not know what the women of the tribe had come to. ‘The women now want to walk before the men,’ he said. Davies himself was awed by the assertiveness of these women. ‘[T]here is nothing meek or submissive about the wives who came demanding to be divorced,’ he concluded (1957, 117–118). We have already indicated how patriarchy, upset by the changing times, called a qadi disparagingly a ‘woman judge’ out of spite because women fared better in his law (Osman 1985, 141). We have also seen how the British authorities invested in the empowerment of this patriarchy by granting it a sharia jurisdiction to settle family disputes in which an uncalled for distinction had been made between sharia and sharia modified by custom. In the context of elaborating these distinctions, J.S. Trimingham related how a nomad community of the Baggara nomads drove out a sharia qadi who had been sent to their court (1965, 122). A conventional reading of Trimingham would conclude that the qadi’s redundancy was a matter of the oddity of his law: representing a great tradition of orthodox Islam that conflicted with the little tradition of popular Islam (Ibrahim 1984, 1989). However, an appreciation of the interests of patriarchy, rather than the strangeness of the law, suggests a radically different interpretation. In view of the engenderment of the domestic feud we have attempted in this discussion, it is safe to suggest that the qadi was fired by the Baggara patriarchy to deny the litigious women an ally. Obviously, Muslim women were emboldened by sharia courts to redress their injustices beyond the meglis of the greybeards and the court of the chiefs. This empowerment of women through sharia and qadis was perhaps too much for men, and a qadi had to be chased out of his court before turning wives against husbands. Sharia courts had never run out of customers. Those who stood to gain from the law of Allah readily did so. The conflict of custom and sharia was strongest among the Humur community of Kordofan. In

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1918, the qadi decided on 18 percent of the personal cases of the community, and native courts heard the balance. Litigants were extremely conscious of the conflict of custom and sharia. One judgment at least led to subsequent breach of peace because the District Commissioner went around a qadi’s judgment by an agreement reached by tribal councils after the verdict. Considerable ill feeling resulted from leaving the qadi’s judgment to stand (Abu Rannat 1960, 12). Further, statistics show that another community of Baggara had been taking their personal cases to a far-away sharia court twice as they brought them before their native court (1960, 13). Customary courts proved not to be the popular institution they were claimed to be. A District Commissioner complained of the reluctance of the Hamar of central western Sudan to take their family disputes to their tribal chief. Hamar, he rationalized, would have liked to settle their cases by the tribal court. However, they had to reckon with the power of the sharia court as a government court. Further, he said that Hamar did not realize until then that their court could settle domestic disputes.134 This explanation struck one as mere rationalization. For how could Hamar be ignorant of the jurisdiction of their tribal court when it was claimed that their chiefs had been settling family disputes since time immemorial? Why should a customary law so valorized unravel as a result of the coming of sharia courts? What tempted the natives to go to the sharia court besides its being a government court? British officials did not want to reckon with the fact they themselves had discovered: their subjects were smart. Native litigants were more interested in winning a case using the court resources at their disposal rather than upholding an indigenous law invented for them and by them. Conclusion The drama of the sharia and native courts revealed in this chapter underlines Heesterman’s diagnosis of the irrelevance of colonialism. To preserve itself from the runaway effects of involvement in society, the colonial government refused to work with influence networks and their leaders. The views of the Grand Qadi, described as moderate and intelligent by the British, were inundated by an empty rhetoric of

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NRO, Kordofan Monthly Intelligence Reports, November 1928.

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hierarchy and intimidation. And by the time the government considered the Qadi’s views, the damage had already occurred. Instead, colonialists dealt with categories and legal abstractions. In the cases where it had to widen or deepen its dealings with the society, it did so by reducing total situations the fluid and multidimensional web of relations that is the substance of society to abstract models amenable to impersonal rule and regulations (Heesterman 1987, 53–54). Consequently, the society, as emphasized before, became more parochial and fragmented because it lost much of its diffuse but effective coherence. We will deal with the far-reaching effects of this colonial recourse to custom, and the suppression of sharia courts on colonial and postcolonial governance in Chapters 3 and 4. Suffice it to say here that the memory of the suppression of sharia courts by the British during the Indirect Rule period considerably handicapped the successive plans to end the duality of the Judiciary. The attempt to amalgamate the Judiciary in the 1940s by training future qadis in sharia as well as civil and criminal law, did not take off largely because of the qadis’ reluctance to play along. They just could not trust the word of the administration on the well being of their jurisdiction after its misguided campaign in the 1920s and 1930s to suppress sharia courts. These suspicions would ally themselves to other memories, fears, grievances, and interests making the unification of the Judiciary of independent Sudan a tumultuous, agonizing and highly, and unwisely, politicized enterprise. Finally, we will see that the qadis, in favorable political circumstances in the 1960s, vindicated themselves by restoring every morsel of authority they had been forced to accede to native courts in the 1930s. The distinctions colonialists made between sharia and custom dealt sharia a bad hand that continues to stalk it in the postcolonial imagining of the nation. Instead of being a national resource at the disposal of creating the new Sudan, sharia has been turned into the most divisive element in the nation building process. Colonial administrators were right in pointing out that the natives interpreted sharia differently. Nonetheless, sharia, to reiterate what I argued in the Introduction, is one of the traditions that give northern Sudan its diffuse but effective coherence. In driving a wedge between the two courts, the colonial administration inhibited the growth of sharia even in the restricted jurisdiction permitted to it. Sharia, as a national legal tradition, is made archaic and prevented from developing within its own framework of reference. In Said’s earlier words, the sharia texts came to inhabit a realm without development or power.

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The colonial ardent belief that tribal custom was more relevant to tribal life than sharia, led to an alliance of colonial and colonized men. In entrusting the greybeards of patriarchy with the resolution of family disputes, colonialism compromised its civilizing mission immensely. By conceding the domestic realm to patriarchy, the colonialists were wooing men into collaboration with them for a smooth running of a country ravaged by the Mahdists of olden times, and the detribalized nationalist elites who had just made their first revolution against the British in 1924. The colonialists left women to the burdensome security of the harem of the patriarchy. In turning law into an administrative convenience, colonialism lost its original mandate of rescuing the country of its ‘oriental despots’ (al-Sid 1990, 110).

CHAPTER THREE

PRESIDENT ISMAIL AL-AZHARI, 1965–1969: THE POLITICS OF MORAL INJURY Twice in less than twenty years presidential politics used the cultural and historical resources of the Manichaean Judiciary to its advantage. Ismail al-Azhari, the Chairman of the Supreme Council of State (SCS), surprised his audience on the Greater Bairam holiday in December 1968 by announcing that his administration would give qadis the upper hand over the civil judges by replacing the colonial laws in place by sharia. In siding with the qadis and their law, al-Azhari was obviously taking it out on the secular, unruly Civil Division of the Judiciary. He had not only been censured three years before by the Civil High Court for banning the Communist Party in 1965, but also had a case, as he spoke, pending before the same court for violating the Constitution by prematurely dissolving the Constituent Assembly in February 1968.1 The geopolitics of the time did not allow al-Azhari to deliver on his exact word of making Islam the law of the land, although he did a great deal during his term (1965–1969) to equalize the qadis with the civil judges as will become clear in this chapter. In different and more favorable political circumstances, President Nimerie (1969–1985) succeeded in doing what al-Azhari had dreamt about: making the qadis’ law the law of the land. Just prior to the promulgation of his Islamic laws in September 1983, Nimerie was provoked and challenged by a judges’ strike that culminated in a drawn confrontation between him and the Judiciary, which was still then dominated by the civil judges. Not unlike al-Azhari, Nimerie wanted to take it out on the civil judges. In implementing sharia, he dumped their colonial law and sent them home to study and adjudicate according to a law they had always denigrated as too anachronistic to suit the times. This chapter and the next will investigate the political, social, moral, and judicial currents that converged since the independence of Sudan in 1956 to make presidential politics seek to profit from the historical

1 See Joseph A. Garang & Others v. The Supreme Commission [The Supreme Council of State] & Others, The Sudan Law Journal and Reports, 1968, 1–12.

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and cultural resources of the Manichaean Judiciary. It may sound politically correct to dismiss al-Azhari’s and Nimerie’s Islamism as a means of exploiting religion. But this position does not help us explore the socio-cultural landscapes that made religion amenable to exploitation at specific times. The question that imposes itself here is: Why did two presidents, in a row if you wish, find, of the plethora of ways to use religion for political gain that allying themselves to the Sharia Division of the Judiciary or its law was the effective way to politicize religion? What was there in the colonial, Manichaean organization of the Judiciary and the society at large that lent itself to this presidential ‘exploitation’ of religion? Why did secularists and modernists, who had their day in government, fail to dry up this source that presidents used to hurt them? What professional and cultural interests lay behind the perpetuation of the dual judiciary in which civil judges had the upper hand? Why was it commonly held among secularists that the colonial duality was the best thing that happened to them as a ready-made foundation for their future state in which religion would be separated from the state? Why has Islamizing the state by decolonizing the Judiciary, colonially structured to relegate sharia to personal matters away from the awesome concerns of the state, been an oppositional sentiment throughout the colonial and postcolonial period? Why did this sentiment assume urgency as the basis for the legitimacy and sovereignty of the independent state? Why did two presidents desire such legitimacy, irrespective of the political systems they had operated from within— al-Azhari working from within a plural democracy and Nimerie running his one-man show of the single party? A Rage for Masculinity In 1968, a certain moral ‘decadence,’ which was felt to jeopardize masculinity, the mainstay of Muslims to establish a moral order, fueled a belligerent religiousness.2 Two narratives of this moral laxity were circulating. One was about the man who applied for a license to run a brothel and the other was about the marriage of two men in el-Gedarif, the granary of the country whose agri-businessmen were in the habit of

2 Sex is one of the instincts whose satisfaction was regulated at length by religious law. ‘The link in the Muslim mind between sexuality and the sharia has shaped the legal and ideological history of Muslim family structure’ (Mernissi 1987, 18).

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contracting such clandestine marriages. Such a public flouting to Islam causes an indescribable sense of doom and gloom.3 Suffice it to say that the revolt of the nineteenth-century Sudanese Mahdi is attributed, on the popular level but rarely admitted in scholarly accounts, to the marriage of two men in el-Obeid, the wealthy commercial center in western Sudan in the nineteenth century. In an address to the nation after the Bairam prayers on December 12, 1968, al-Azhari, the Chairman of the SCS, spoke to these moral concerns delineated in the speech given by the imam of the prayers before him. In his talk, al-Azhari deplored the legal complacency of the existing colonial Penal Code for failing to live up to the moral fortitude of Muslims. He said, ‘These are unbecoming practices; these are sorry practices. These are practices that render civil judges unable to try them because the laws of Sudan, the laws of the [civil] judges in Sudan are deficient in articles that punish such practices . . . These practices behoove and challenge us to change our laws, rulings, and even our judges to bring forth competent and trustworthy judges’ (alSahafa 24 December 1968). In his speech, al-Azhari reiterated his commitment to implement an Islamic constitution. In this constitution, he goes on to say, Qur’an will have the final say, and a judge will need nothing else beside it. Allah’s law, he continues, has left nothing of what we complain of without sanctions. Subsequently, it would be no longer possible for such obscenities to go unpunished. To bring about the type of judges who could be entrusted with the moral fabric of Sudanese Muslims, al-Azhari had been diligently promoting the Sharia Division of the Judiciary since 1965. Thanks to him the overdue Judiciary reform pursued by the qadis was implemented as we will discuss in detail shortly. Not waiting for the day to be acknowledged for doing justice to the Sharia Division, al-Azhari blew his own horn very early in this speech: If you are not told, I am telling you now that Allah has guided us during the last month to implement the first steps in equalizing the two Judiciary divisions: the Sharia and the Civil. In the past the Civil Division had the upper hand in administrative, jurisdictional, and execution terms. God

3 As late as 1987, the arrest of five transvestites in a hotel in Khartoum was met by an outcry of injured masculinity. The historian, al-Tijani ʿAmir, describes the men’s femininity as running in the face of manly and religious behavior. He nostalgically speculated on how the judges of Nimerie’s Islamic experiment (1983–1985), which we will discuss in next chapter, could have punished them (Al-Siyasa 21 and 22 May 1987).

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chapter three almighty guided us in the last few months, I presume, to disengage the two Divisions. And I believe you know that the supervision of the Judiciary is the prerogative of the Chairman of the Supreme Council of State, and not the government. The Sharia Division, Allah be praised, became on par with the Civil Division in terms of salaries. It has now its independent jurisdiction and is administratively autonomous. As a result, it is no longer subordinated to the Chief Justice or the Civil Division. As I address you now and audiences everywhere, I must acknowledge the presence of the Grand Qadi, Shaykh Abu Qisaysa. I would like to bring to you the happy tiding of this equality of the two divisions of the Judiciary. However, I will work unrelentingly, if Allah would extend my time on this earth, to subordinate the Civil Division to the Sharia Division. The final say in matters pertaining to law will be to the qadis and their Division. The executives in the government will be directed to follow their directions, God willing (al-Sahafa 24 December 1968).

In speaking to these concerns, he was not an innocent moralist. In actual fact, as noted earlier, he was dragging into the situation his protracted fight with the Civil Division of the Judiciary. His repeated runs against the Constitution had been taking a toll on his popularity. His moral politics were geared to redeem this popularity. Although manipulative, his moral politics were substantive and resonated with a deep-seated sense of colonial moral injury discussed in the introduction of this book. Al-Azhari: The King of Sudan if Needs Be Al-Azhari’s Bairam speech intertwined biographical, governance, and religious concerns. These concerns were put in sharp relief by the radical mood and transformations inspired or effected by the 1964 Revolution, which brought down General Abboud’s military junta, which had been in power since 1958. In biographical terms, al-Azhari was credited for leading the nationalist movement to achieve the independence of Sudan in 1956, and for having been the prime minister of the first self-rule government of 1954. He had indeed always dreamt or believed that it was his calling to lead the Sudan. Evidence of this passion exists as early as 1937 when he was still a lecturer at Gordon College. He was approached then by a student to supervise the production of a play entitled ‘The Sudan after Hundred Years.’ In the play, the student projected an independent Sudan in a century’s time. Al-Azhari was not amused by the time span of this futurology, and suggested that the student reduce it to twenty

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years, adding, ‘Twenty years may be too many after all.’ Apparently, the student modeled the future prime minister on al-Azhari either out of admiration or as another prank students play on their professors. 4 Most importantly though, al-Azhari was vindicated because the Sudan got her independence in less than the twenty years he had predicted, let alone the century his student had suggested. The British knew about al-Azhari’s political ambitions and obviously did not like it. To a British reporter he defiantly said, ‘If the Sudan became a republic I would be her president, and if she became a kingdom, I would be her king’ (Said 1990, 423). After describing him as having ‘a Pickwickian appearance [that] masked a character of single-minded ambition,’ Gawain Bell, al-Azhari’s under-secretary in the transitional period and the future Governor of Northern Nigeria (1954–1956), said that al-Azhari’s stated plan in 1951 to be the president of the Sudan materialized in 1961 (sic) (1991, Vol. 1, 154–155) in circumstance that we will turn to shortly.5 Nonetheless, J.W. Kenrick found him courteous and polite (1991, Vol. 1, 164). Bell, did not like him at all for being one of the few Sudanese ‘who appeared to fall short in the two qualities that were almost national characteristics: grace and generosity’ (1991: Vol. 1, 155). Al-Azhari became the prime minister of the Sudan in 1954 at the head of the National Unionist Party (NUP) which was an alliance advocating unity with Egypt comprising al-Azhari’s original party of modern elites that emerged out of the Graduates’ Congress of 1938 and the Khatmiyya Brotherhood led by al-Sayyid Ali al-Mirghani (d. 1968). In a volatile political evolution right before and immediately after the independence of the Sudan in 1956, al-Azhari, reinforced by his nationalist stature and following, began to show some independence from his religious patron, Sayyid al-Mirghani of the Khatmiyya, and to distance himself from his old commitment to the unity of the Nile Valley. This drew him closer to the Umma party of the Ansar of the nineteenth century Mahdi, who harbored a historical animosity toward Egypt, and had been thus seen

4 It was not without import that the name of the prime minister in the play was ‘Zahran’ which sounds almost like ‘Azhari.’ Furthermore, the role of this prime minister was played by Hashim Dayfallah, a renowned educationalist and athlete, who not only had a pierced ear like al-Azhari, but was also famous for mimicking him in the college (Ahmad al-Maghrabi, Al-Sahafa 21 April 1984). 5 Gawain put the date as 1961 (1991, Vol. 1, 155), which is when General Abboud was the head of state as the chairman of the Supreme Council of the Armed Forces till ousted by the October Revolution in 1964.

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as pro-British. Al-Azhari’s success in building a national consensus to the declaration of independence in 1956 earned him national appeal and a lasting place in Sudanese history. However, his relation with al-Mirghani increasingly worsened, and they finally parted ways in 1956. The Khatmiyya broke away from the NUP and formed their separate party, the People’s Democratic Party (PDP). It then dawned on the popular Brotherhoods of Khatmiyya and Ansar that they had more in common than with al-Azhari and his upshot effendis. As a result they hurried to patch up their differences. Al-Azhari was voted out of office in June 1956 (Niblock 1987, 207–209). We will see how this humiliating, yet legitimate democratic experience, had caused him to seek permanency for the political office he held later, to his detriment. Having been forced into opposition by an alliance of religious authorities, al-Azhari placed more emphasis on his party’s ‘secular nationalism’ whose motto was ‘lā qadāsa fī al-sīyāsa’ (literally ‘no holiness in politics’) (1987, 210). In popular polemics, party loyalists were fed a more menacing slogan: ‘al-kahanote maṣuru al-mot’ (literally, ‘death to the clerics’). The cartoons and polemics deployed to attack the sacred powers of Sayyid al-Mirghani were played to an enchanted urban audience to the chagrin of the die-hard and rural loyalists. In this secular turn of mind, al-Azhari forged stronger links with the powerful trade, tenants, and professional unions, the Sudan Communist Party (SCP), and the Southern Federal Party which called for a national democratic constitution that would safeguard basic freedoms (1987, 210). The 1958 coup, led by General Abboud, the Commander of the Sudan Defense Force, put al-Azhari’s dream of coming back to power to rest. The coup itself is largely attributed to the fear of the dominant Umma Party that the radicalized political climate precipitated by its intention to accept American aid could bring al-Azhari to power in alliance with the Khatmiyya, who were restive in the government of the day, and the vocal leftist movement. Vilified as the beachhead of American imperialism, the American aid radicalized opposition to the Umma-led government to make it fear that they would lose power to al-Azhari. The Prime Minister, Abdalla Khalil, allegedly directed the army to take over. The coup sent al-Azhari to the opposition sideline. Al-Azhari who exited politics while actively involved in a largely left secular oppositional front, returned after the October Revolution of 1964 at the head of a religious alliance determined to break up the secular power of the National Professionals’ Front (NPF). The Front had a major

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role in the Revolution, and was comprised of student, tenant, workers, women, and professional unions, strongly influenced by the SCP. The revolutionary cabinet was under the control of the NPF reflecting the weight of this emerging constituency of social change. The rise of this movement to power was an outcome of its staunch opposition to the junta for six long years in the context of the radical social and national liberation enterprises animating the Third World, especially in Nasser’s Egypt, at the time. At the center of this radicalization was a call to wed social change to political sovereignty at which the train of the nationalists had long stopped. The revolutionary cabinet showed the political potential of radicalism in the few months of its existence before it was overthrown on February 18, 1965. The force that ousted it comprised an alliance of al-Azhari’s NUP, the Umma Party, clerics, and the Muslim Brotherhood that had also mastered the political game, just like the communists, in the fight against Abboud’s junta (al-Turabi 1989a). Chief among these revolutionary changes was the beginning of an execution of a plan to phase out the native administration system of tribal chiefs in a bid to liberate the rural masses from its authority. Also, women and youth aged 18 were granted the right to vote. Proposals to give workers and peasants 50 percent of all seats in future parliaments, a la Egyptian Nasserism, were forcefully advocated. Calls for agricultural reform were made to undermine the influence of wealthy farmers associated with the Umma Party. To lure the national capitalists, the government was called on to nationalize the banks and give the Sudanese the lion’s share in foreign trade dominated then largely by foreign firms domiciled in the Sudan since the colonial times. Suspecting that the radical NPF was seeking a long-term role in the country’s politics, al-Azhari’s alliance intensified their attack against the transitional government. Al-Azhari especially might not have liked its slogan popularized in demonstrations that said ‘Lā zaʿāma li al-qudāma’ (‘Dump the old leadership’). Al-Azhari’s alliance worked tirelessly until they forced the Prime Minister to resign in February 18, 1965. The newly-formed cabinet increased the representation of the traditional political parties at the expense of the NPF. ‘The radical experiment in power was over’ (Niblock 1987, 227–228). Short-lived as it was, the radicalization of politics engendered by the October Revolution of 1964 put into question the legitimacy of al-Azhari and his nationalist generation.

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chapter three The Cult of Permanency

In finding the national basis of his political legitimacy questioned, al-Azhari made calculated moves to redefine his political ambitions and to secure their longevity. First, he championed the cause of anticommunism by putting his popularity at the service of the Muslim Brothers, the mastermind behind the campaign to disband the SCP in 1965, as we will see later. Second, he called for the Sudan to switch to an executive presidency instead of the Westminster premiership in place. Even before his call was constitutionally endorsed, he ‘invented’ an executive presidency for himself as will become clear shortly. Al-Azhari’s desire to be an elected president on a secure term-basis may be seen as an attempt on his part to protect it from the unremitting, unpredictable, and erratic partisan wars surrounding the premiership that brought his downfall in 1956. His taste for an executive presidency might have been whetted by the reign of the military junta that came to power in 1958. Although they ran the country by a sovereign institution known as the Supreme Council of the Armed Forces in conjunction with a cabinet consisting largely of the military men on the Council, the junta imaged General Abboud, the Chairman of the Supreme Council of the Armed Forces, as the de facto head of state. His six years in power, enjoying all the substance and trimmings of power, might have turned al-Azhari, the first national leader, green with envy. To bring about the executive presidency, al-Azhari did not wait for the Constituent Assembly, elected in 1965 with the sole purpose of coming up with a permanent constitution for the country, to deliberate on the merits of his proposal. For starter, he resigned his parliamentary seat in 1965 to be elected to the SCS, an institution with essentially ceremonial functions headed by rotating chairmen, on the understanding that he would be its permanent chairman (Bechtold 1976, 241). His allies in the Umma Party, whose prize was the premiership, accepted amending Article 14 of the Constitution to install al-Azhari as the head of the state.6 Amending the Constitution to appoint al-Azhari as the head of the state was not favorably looked on by wider and influential circles even among those who had traditionally trusted him. The move was seen as

6 Later in time this inclination of having an executive president was adopted by the Constitutional National Committee and incorporated in the Draft Constitution of 1968 (Fadlalla 1986, 44).

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a politicking as usual when people were gravely concerned about how such politicking had debased the first democracy before the junta’s takeover in 1958. Even worse, the move was read as showing the stark inability of the old political cadre to rise up to the governance challenge posed by the October Revolution. Unlike the generation of the anti-colonial resistance with its indiscriminating passions for national sovereignty, the generation October Revolution gave birth to was long on what independence would do for it rather than what it should do for independence. Al-Azhari, however, made things worse for him by beginning his newly acquired presidency by fighting with the Prime Minister in October 1965 over the right to represent Sudan at an African summit in Ghana. To pressure the Prime Minister to give in, al-Azhari asked his ministers in the cabinet to submit their resignations to the Prime Minister to signal his intention of dissolving the alliance with the Umma Party (1976, 241, 242, Mahgoub 1974, 199). The crisis was only resolved when the Prime Minister, who did not give up the trip to Ghana, conceded future representation of the Sudan to al-Azhari (Khalid 1990, 221). Even those who wished al-Azhari’s party well did not appreciate this too crude political ego-involvement. Al-Azhari and the Communists: Too Close for Comfort In the view of the left, al-Azhari’s ‘flag independence’ fell short of the desire of people to enjoy the economic and social benefits of independence. As a result the left opened fire on al-Azhari’s basis of legitimacy, namely, the legacy of being the nationalist who redeemed the nation. ‘Hoisting the flag’ came to define his unique national contribution and to buttress his claim to leadership. For the people, he stood as the liberator from colonial serfdom as captured by this rhymed slogan of his supporters: You set the people free, O Ismail And each became a master in his own right

To al-Azhari’s praise that he was the one who hoisted the flag, Mahjub, the charismatic communist leader, a neighbor of al-Azhari, and a former student of the man, retorted before amused audiences, ‘Anyone knows how much this flag weighs?’ Also, al-Azhari’s infatuations with the trappings of authority was the fodder of a popular column in al-Midan, the communist daily, in which al-Azhari’s motorcade was constantly ridiculed.

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In real terms, the popular SCP wanted to supplant al-Azhari in his traditional base among the elites and the urban centers. In the 1965 elections, the SCP had already won the graduates’ constituencies, which al-Azhari’s party had won in the 1954 elections, by a landslide. The communists also ran neck to neck to al-Azhari’s candidates in the race for most of the urban constituencies. In election terms, the communists came dangerously close to al-Azhari’s bastions of power. Mahjub, the Secretary of the SCP, was 89 votes short of winning al-Azhari’s own seat in a reelection after al-Azhari’s resignation from Parliament to be the head of the state in 1965 (Said 1990, 433). In the 1968 elections, this constituency finally returned Mahjub to Parliament to the chagrin of al-Azhari. Al-Azhari might not have liked in particular how the communists phrased their objection to his bid to amend the Constitution to be the permanent chairman of the SCS. In requiring popularity as the only accepted, though lame, excuse for permanent chairmanship, the communists said the country had yet to bring forth a leader whose charisma would cut across all political loyalties. Even Nasser of Egypt, whose popularity one could not begin to compare to al-Azhari’s, they argued, turned the offer to be the permanent president of Egypt (Silayman 1968, 40). It must have hurt al-Azhari listening to this unauthorized discourse on a popularity he had spent a career building up, and made him the first prime minister of the Sudan. Ironically, al-Azhari’s anti-communist drive was inaugurated the same day Beshir M. Said, an independent journalist who was not unsympathetic to al-Azhari, published an editorial advising al-Azhari to tune in to the new realities in the country including the reality of the political prominence of the SCP. On that day, a panel of Muslim Brothers was held at the High Teachers’ Institute to discuss prostitution. Legal prostitution was under attack at the time, as will be discussed shortly. A student, a former member of SCP with sympathies to a splinter group of the party, made a comment in the discussion period to the effect that prostitution is as ancient as humanity and it had even been in Prophet Muhammad’s own house. The student was here making reference to when Aiysha, the Prophet’s youngest wife, was accused of adultery, before it was revealed to the Prophet that the accusation was unfounded.7

7

Qur’an 24:11.

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The spontaneous and contrived outcry that followed these sacrilegious comments provided al-Azhari with a rare opportunity to savage the SCP. The surety of success going after the communists was sniffed at by a Muslim Brother who said on hearing the story, ‘The communist party is finished and done.’ And this Muslim Brother began mobilizing the Sufi Brotherhoods, whose members thrive on weekly poetic and miraculous recitation of the life of the infallible Prophet, around the demand of disbanding the party (Ahmad 1982, 83). Al-Azhari’s help was also sought to give the good cause of hurting the SCP a popular, urban leadership. Demonstrations against the communists’ disrespect of the Prophet rallied in front of al-Azhari’s residence clamoring for the banning the SCP. Al-Azhari championed their cause and presented his own government with an ultimatum to de-legalize the party, or he would personally lead the protest movement to a successful end (Said 1990, 434–435). Al-Azhari’s alliance used its overwhelming majority in the Constituent Assembly to disband the SCP in December 1965, terminate the membership of its 8 M.Ps, and ban the circulation of all literature promoting the cause of communism. These measures brought al-Azhari in direct conflict with the Civil Judiciary. On December 22, 1965, the Civil High Court declared, in Joseph Garang and Others v. the Supreme Commission [Supreme Council of State] and Others (1965), that the constitutional amendments (Articles 5 and 6 of the 1964 Constitution) banning the SCP were unconstitutional. Without even waiting to appeal the decision, both the government and the Constituent Assembly declared that they would not abide by the court’s decision dismissing it as merely declaratory. This reaction suggested to the people that the government was not concerned for the rule of law (Fadlalla 1986, 45). Affronted, the High Court petitioned the SCS to prevail over the government and the Constituent Assembly to execute the court’s decision. Additionally, the cabinet was asked to apologize to the court in order to restore faith and respect to the Judiciary. For advice on the legal issues at stake, the SCS co-opted a team of attorneys from among the core supporters of the ban, including al-Turabi, the emerging leader of the Muslim Brotherhood and its representative in the Assembly. As expected, the team saw no wrongdoing on the part of the Constituent Assembly, which according to the government’s experts had the authority to amend the constitution. In turn the SCS issued a statement in April 1967 describing the court’s decision as lacking legal foundation and prejudiced for deciding the issue on political grounds. In doing so,

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the statement continued, the court had opened the process of law to grave questions (Riyad 1967, 133). This belligerency on the part of the government and the legislature did not sit well with the Civil Judiciary specifically and the secular, liberal, and leftist quarters at large.8 In protest, the civil judges threatened to resign. As a signal of solidarity, the Bar Association went on strike. In a dramatic development, the Chief Justice, Awadalla, resigned in a letter to the SCS protesting the way it had sided with the cabinet in the conflict at hand at the expense of the respect due to the Judiciary. This would not be the last people would hear from the resigning Chief Justice, for he re-emerged in the 1969 coup as an original member of the Military Revolutionary Command of Colonel Nimerie. Al-Azhari’s disrespect of the court perhaps exasperated an already festering confrontation between the SCS and the Chief Justice Awadalla. The maverick Justice, the Speaker of the first parliament in the country (1954–1956), was carried to the position of Chief Justice by the 1964 Revolution, which was very sensitive to the independence of the Judiciary. Awadalla was perhaps personally and professionally alienated by the SCS’s plan to restrict his otherwise wide judiciary and administrative powers. The plan took two concrete forms. First, to end the subordination of the sharia qadis to the Chief Justice, a constitutional amendment in 1967 created two independent judiciaries; the Civil under the Chief Justice and the Sharia under the Grand Qadi (Haj Musa 1970, 466–473). Al-Azhari’s speech on Bairam celebrated this as a small step on the path to make the qadis’ law the ultimate law of the land. Second, to lessen the administrative and appeal powers of the Chief Justice, an appeal court of seven judges, headed by the Chief Justice, was instituted in 1966 to assume the responsibilities previously exercised by the head of the Judiciary. For example, previously the Chief Justice, or those to whom he delegated his jurisdiction, looked into appeals. This reform was called for by the charter of the October Revolution that was critical of Abu Rannat, the Chief Justice under Abboud’s Junta, for abusing the powers concentrated in his hands. Although the government passed the amendment in the spirit of executing an article of this revolutionary

8 Although the constitutional article on freedom of expression was amended to specifically deny this freedom to communists, amendments were so sweeping to threaten many others. ‘Such powers,’ writes Fadlalla, ‘could easily be utilized by a party in power to curtail the freedom of action of its critics’ (1986, 45).

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charter, it was in large part getting back to the maverick Chief Justice (1970, 467–472).9 The Gossipy City Al-Azhari’s credibility could withstand neither the nationalist egalitarian standards he set for himself nor the scrutiny of a public gaze versed in an Islamic and leftist culture of venerating rulers for leading simple lives. Al-Azhari’s decision to stay in his old house and not move to the mansions from which he had evicted the colonialists initially touched the Sudanese for it was symbolic of the egalitarianism of the nationalist times. This modesty has even been commemorated in a popular song: Praise the one who chased the British out of Sudan And remained in his old house.

But not moving to the colonial mansions no longer worked. Restructuring his old house to turn it into a multi-storey mansion did not endear him to either neighbors or fans that had liked him for accepting to live as one of them. For refusing to sell his property to al-Azhari to expand his mansion, his intransigent neighbor was hailed as an urban hero. Building a high rise hurt the Islamic sensibility of people because the owner is viewed as having no shame eavesdropping on his neighbors from above. The allegations that the merchant supporters of the party footed the bill of developing al-Azhari’s house did not help either. A joke circulated then that al-Azhari’s response to this popular revulsion was: ‘To their objection to the building of one storey I will answer by building the one on top of it.’ Al-Azhari’s every domestic move was seen as cheapening the longing of people for wholesome leaders they rightly deserved after their revolution in 1964 against a morally and politically irresponsible junta. The gossip mill churned the domestic news of al-Azhari into disrepute. His wife’s trip to Egypt to visit a famous saint on the occasion of her son’s circumcision was seen as ill-advised use of tax money. Further, the gifts sent from outside the country on the occasion of the betrothal of his daughter, were noted as frivolous. Finally, his insistence to refurbishing

9 For the mutual dislike of al-Azhari and Justice Awadalla, the Chief Justice, see Abu Sin (1997: Vol. 1 67–92).

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Arkawiet summer resort on the Red Sea Hills, abandoned just a few years after the departure of the British who had built it, was viewed as an expensive colonial indulgence whose resources should have been used to comfort the down and out (Abu Sin 1997: Vol. 2, 27–28). I still remember the incredulity that met his answer to a reporter that he preferred white meat to red meat. Very few people then, or even now, made this distinction. Al-Azhari further offended people by muscling the opposition in his party out of existence. Invigorated by the breath of freedom they wrestled from a junta that suffocated them for six long years, people were further turned off by al-Azhari’s high-handedness in handling dissent within his party. ‘To whom it may concern,’ with which he addressed his letters terminating the membership of disagreeable members, became emblematic of arbitrariness and nonsense. Said, the editor of the independent al-Ayyam, pointed out this failure of al-Azhari’s party to reckon with the new realities of the October Revolution. After six years of being banned, he said, the party re-emerged in the political arena too decimated and run-down to animate the masses it used to command their respect and loyalty (1990, 234). The news about al-Azhari on the very day of the coup led by Colonel Nimerie against his government on May 25, 1969, are emblematic of his crisis of legitimacy. A story in the morning papers of that day brought together his two most outstanding legitimacy problems, namely, the credibility gap with the people and his conflict with the Judiciary. The story told about the decision of the Civil High Court to relieve Justice Obeid el-Naqar of his post. Justice el-Naqar was disciplined for digressing into al-Azhari’s politics in delivering a court decision. In his digression, he rehashed the complaints against the Chairman of the SCS for being too much involved in the trimmings of power to give its substance any attention. He called upon al-Azhari to leave his palaces and to start solving the problems of the homeless before they retaliated with revolutions. In the story on the morning of the coup, elNaqar accused the President of open intervention in the independence of the Judiciary for instructing that action should be taken against him (Sudanow, July 1977). It was not exactly the homeless who ultimately ousted al-Azhari. The revolutionaries came from the barracks instead but in the name of the homeless among other disadvantaged categories of the population.

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The Second Coming of the Constitutional Case Al-Azhari’s address at the Bairam prayers in Omdurman in 1968 was a miscalculation every way you look at it. In trying to attack the secularists and leftists, al-Azhari did not take into consideration that the Islamic alliance he had successfully led to ban the SCP was falling apart. Feuds wrecked the alliance. In fact, as noted earlier, al-Azhari’s address was partly composed in defiance of a civil court that had been hearing a case filed by his former partners in the Islamic alliance. An early crack in the alliance came in 1966 when al-Azhari had to choose between two factions in the Umma Party that emerged from a split in the party, the crucible of the Ansar Brotherhood of the nineteenth-century Mahdi. One of the factions consisted of a group described as ‘modernized’ for accepting the idea of separating the religious imamship of the Brotherhood from the political leadership of the party. This group was led by al-Sadig al-Mahdi, the president of the Umma Party. The other group, dubbed ‘traditionalist,’ or the ‘Imam Wing,’ was led by the religious Imam of the Ansar, al-Hadi al-Mahdi, who did not make the distinction between the spiritual and the political performances of the Brotherhood. Al-Azhari went with the modernists of the Umma and forged an alliance with al-Sadig in a government headed by the latter in July 27, 1966. But their alliance did not last long. Al-Sadig was too modern for al-Azhari’s taste.10 In May 1967, al-Azhari switched sides and struck a deal with the Imam’s Wing resulting in the ousting of al-Sadig. Mahgoub, a poet and the intellectual voice of Sudanese nationalism in the 1930s, became the Prime Minister.11 Al-Sadig went into the opposition at the head of a newly formed alliance comprising the Muslim Brotherhood of al-Turabi and the Sudan African National Union (SANU), a vigorous southern party led by the late William Deng (d. 1968).12 The younger, modern, and appealing

10

Peter K. Bechold suggests that al-Azhari was jealous of al-Sadig for his broadmindedness in tackling state problems that made his reputation grow. Al-Azhari, he says, was fearful that this national approval of al-Sadig might cause him to seek exclusive national leadership in a presidential system (1976, 245). 11 For an autobiography of a sort see his Democracy on Trial published in 1974 in London by Andre Deutsch. For a cogent review of his intellectual contribution to the cause of Sudanese nationalism see Abu Salim (1991, 9–61). 12 Unlike other ‘radicals’ of strife-ridden SANU, who held to federation and negotiating peace outside the Sudan, Deng, who came from exile to Sudan soon after the

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leadership that had given the campaign against communism its aggressive ideological edge thus deserted the Islamist camp of al-Azhari. This opposition, that came to be known as ‘the New Forces Congress,’ kept giving the government a hard time. To preempt a vote of confidence in the government in 1968, al-Azhari directed his party members in the Constituent Assembly to resign to create a constitutional vacuum. By the powers invested in him he could use this vacuum to dissolve the Assembly. In February 1968, al-Azhari retired the Assembly that had been elected in 1965 for three years ending in April 1968. In calling for a new election, al-Azhari was perhaps confident of scoring even higher in this election since he had already reconciled with the Khatmiyya Brotherhood. A new party came on the heel of this merger known as the ‘Democratic Unionist Party’ (DUP) comprising Al-Azhari’s own NUP and the People’s Democratic Party of the Khatmiyya. Al-Sadig filed a constitutional suit to the Court of Appeal against the dissolution of the Assembly by the SCS.13 Al-Azhari’s address on the Bairam holiday was rightly read as disrespectful of the Judiciary. It came after one more debacle of the SCS involving Khidir Hamad, a member of both the SCS and al-Azhari’s party, who made a contemptuous statement about the Judiciary just five days before al-Azhari’s address. In the statement, Hamad criticized the Court of Appeal on a procedural point in the case against the SCS and made public his suspicion that it had favored the plaintiff. His statement was construed as putting the SCS above any court in the land (al-Ayyam 19 December 1968). The outcry against Hamad was so intense that he had to plead being misquoted by al-Ayyam newspaper. The paper stood by its story. If it ever tampered with Hamad’s text, the paper continued to say, it was to make it less offensive to the Civil Judiciary (al-Ayyam 20 December 1968). Read as another manifestation of the SCS’s highhanded attitude toward the Judiciary, Hamad’s statement made thing worse for the government.

October Revolution of 1964, was ready to negotiate a form of regional autonomy rather than a federation. This drew him closer to the Prime Minister, al-Sadig al-Mahdi, who planned to crush the rebellion in the South yet work with southerners who accepted the unity of the country (Khalid, 1990, 231; Beshir 1968, 91). 13 High Court 72/1986, Al-Sadig al-Mahdi and Others v. Council of Ministers and the Supreme Council of State.

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The Limits of Islamization Al-Azhari’s Bairam address apparently pleased no one. His foes on the left and the right alike found it disagreeable for being disrespectful of the Judiciary that had been looking into al-Azhari’s repeated runs against the Constitution. Pitting state institutions against each other, as al-Azhari was perceived to have done, was repudiated as substandard politicking. His foes on the right especially saw the continuation of the colonial duality of the Judiciary as unwarranted. Instead of putting the qadis on top of the civil judges as advocated by al-Azhari, they called for the amalgamation of the Judiciary. Even the qadis, who had already achieved parity with civil judges, thanks to the efforts of al-Azhari, saw the address as overkill. The address precipitated a violent reaction amongst the Civil Judiciary and its allies in the forces described as ‘modern.’ The Court of Appeal held a meeting to discuss it in order to take suitable measures against it. The judges of the Civil Division of Khartoum met to discuss a draft of a petition and resolution to the SCS protesting the address of its chairman (al-Sahafa 24 December 1968). The press reported that the judges had adopted serious steps to defend the Judiciary, and that these resolutions were communicated to judges in the rest of the country. The press speculated that the judges would ask al-Azhari to withdraw his statement, or accept their resignation. ʿAbd al-ʿAziz Shidu of the Civil Judiciary stated that the judges were planning to establish a union to defend their profession (al-Sahafa 25 December 1868). A plenary meeting comprising High Court and chief provincial judges, called for by the Court of Appeal, met on December 28, 1968 to discuss the draft resolution of Khartoum judges. Mediators shuttled between al-Azhari and the judges to diffuse the crisis. Both al-Azhari and the judges agreed to work with the interceders (al-Sahafa 29 December 1968). But the Court of Appeal on December 30, 1968, issued a statement protesting al-Azhari’s address for undermining the jurisdiction of the Court and the rule of law. The Court expressed its determination not to be dragged into commenting on the issue of the Islamic constitution, and refused all intercessions that fell short of restoring respect to the civil courts (al-Sahafa 30 December 1968). Al-Azhari’s and the SCS’s recurring runs against the Constitution gave the Bairam address an ominous twist for it smacked of a conspiracy bent on disbanding the Civil Judiciary. The alliances of the leftist and modern forces mobilized to defend the Civil Division. Seventeen professional

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unions signed a statement denouncing al-Azhari for his statement (alSahafa 31 December 1986). The Bar Association was the most active and articulate power in this alliance. In addition to its readiness to go on strike along with the judges, the Bar revealed the take of the secular mind on al-Azhari’s position at this juncture of the conflict between the modern and reactionary forces. The president of the Bar was inclined to see al-Azhari’s address as a ‘tit for tat’ reaction to the case before the Court of Appeal against the SCS. Al-Azhari, according to the President of the Bar, had also never forgotten or forgiven the High Court for ruling in 1966 against the disbanding of the SCP pioneered by al-Azhari (al-Sahafa 24 December 1986). The modernists of the Islamic camp, under al-Sadig, who had an axe to grind with al-Azhari because of disbanding the Constituent Assembly, vilified the address and denied that Islamic legal theory would sanction it. Al-Sadig described the address as a ‘political bribe to the qadis’ and intimidation of the Civil Division of the Judiciary. He took issue with the many implications it allegedly contained. He stated that judges under an Islamic constitution do not, as al-Azhari had suggested, create laws by direct reference to the Qur’an and Sunna. Rather, they will be bound by the Islamic law legislated by elected bodies. The responsibility for laws, he stated, would rest with the legislature rather than the courts (al-Ayyam 24 December 1968). Al-Turabi used the occasion to vent his disappointment in al-Azhari for distancing himself from the process of drafting an Islamic constitution in the National Constitutional Committee in which his Brotherhood had invested a lot of energy. Al-Azhari was apparently disenchanted with the Muslim Brotherhood for identifying too much with the Umma Party and with al-Sadig in particular (el-Affendi 1991, 85). Endorsing a constitution seen as the brainchild of the Brotherhood was anathema to al-Azhari. Having eliminated the SCP, a real threat to his influence among the urban population, he did not want to sponsor a future rival among the same population. Had al-Azhari adopted the 1968 draft of the Islamic Constitution, al-Turabi maintained, he could have seen that the division of the Judiciary into a Sharia and Civil divisions would be something of the past (al-Sahafa 24 December 1968). Even the qadis, who were basking in their autonomous division of the Judiciary thanks to al-Azhari, saw the address as overreaching and overbearing. Qadi ʿAwadalla Salih, the Mufti of the Republic, denied the news that the Sharia High Court, of which he was a member, had

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met to discuss al-Azhari’s address. Importantly, he added, the problem in the Judiciary was better approached as pertaining to the entire court system rather than as giving the qadis the upper hand in the delivery of justice (al-Sahafa 26 December 1968). Taha, who had been declared an apostate from Islam in 1968 by the Sharia High Court, allegedly with al-Azhari’s instigation or blessing, joined hands in the protest against the address. He said, ‘It is an address that is wrong in every aspect of it reflecting the ignorance of the people in charge of our lives. The ignorance shown in the address is an old one though. What is new about this ignorance is that it is becoming entangled with giving it a halo of sanctity’ (al-Ayyam 25 December 1968). Moral Injury Suffice it with respect to the negative political reaction to al-Azhari’s address. But al-Azhari was speaking to a colonial moral injury, as we have seen it defined by Davidson, underlying these scandals that insulted the sense of civil as well as religious decency of Muslims. No amount of talk about al-Azhari’s political manipulation of theses scandals could have softened their impact on the public mind. The premonitions of Sudanese Muslims that the British conquest of 1898 was the beginning of a māndayra (immorality and licentiousness) era did come true. Usury, gambling, alcohol, prostitution, and apostasy from Islam were legalized. His motives aside, al-Azhari knew he was speaking to popular ethical concerns that he liked to be on their right side. The Gamblers are Coming! The colonial courts began to hear cases that were morally wrong in the Muslim’s way of life. In the first reported case (1900) of the colonial judiciary, the judge considered excessive interest as running counter to the repugnancy clause (of observing justice, equity, and good conscience) by which a judge should determine to apply or not apply a custom of the parties according to Section 4, the Civil Justice Ordinance, 1900. A critic of this judgment indicates its irony. A year or two before this judgment, he argues, a claim of interest, excessive or otherwise, could not have been entertained in the Mahdist courts whose sharia positively prohibited usury (ElKhalifa 1988, 74). Another case that could not have

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seen the light of day in a Mahdist court was about gambling. In deciding whether money lent for the purpose of gambling is recoverable or not, a British judge said ‘I know of no Ordinance in Sudan making the playing of Baccarat illegal or declaring that money lent for the purpose of gambling is unrecoverable in the Sudan courts; but having regard to the English law it seems to the court contrary to public policy and good conscience to hold that money lent for the purpose of gaming is recoverable in an action in Sudan’ (1988, 82). Little did the judge know, or he cared to know, about the prohibition of gambling in the moral law of his court’s customers. European and Native Liquor Colonialism allowed alcohol drinking. It was also regulated with reference to a dual taste for ‘native’ and imported ‘European’ liquor. In observance of the Brussels Act, 1890, the Condominium Agreement (1899), Article 125, stated that no imported liquor should be sold to natives in Sudan.14 Two separate ordinances were issued later to regulate the manufacture and distribution of liquor. The Liquor License Ordinance, 1923, Section 21, which regulated the import and distribution of European liquor, was specifically said not to apply to the sale of native alcoholic liquors. The Native Liquor Ordinance, on the other hand, was issued in 1934 to take care of the native consumption of indigenous liquor. Section 4 of the Ordinance prohibited the distillation, the distribution, and possession of any spirit liquor in Sudan. Beer and light wine, whose alcoholic content did not exceed 15 percent, were allowed to the native, per Section 15 of the Liquor License Ordinance. Section 15 also empowered the Governor-General to exempt any class or classes of persons from the strong spirits prohibition provision. This explains why Sudanese officers and administrators were exempted from the prohibition of consuming spirituous liquor. Their friends, whose job entitlement did not include consuming European liquor, used their good offices to obtain their quota (Yasin n.d., 69).

14 The text of the Condominium Agreement was published in the Sudan Gazette on March 7, 1899. The same issue of the Gazette also carried advertisements of Greek wine sellers in Omdurman. An officer’s club was opened in the town and published an advertisement in the May 27, 1899, issue of the Gazette. The club offered drinks, billiards, a hairdresser, and a photographer (Daly 1986, 28).

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Colonial Prostitution Although colonialism, supposedly a cautious alien regime, feared the outbreak of rebellions of cultural revulsion by its Muslim subjects in Sudan, it accepted prostitution as a way of life. Jay Spaulding and Stephanie Beswick (1995) discuss the colonial socioeconomic arrangements that ‘institutionalized’ a demand for the services of prostitutes with the coming of market forces into pre-capitalist Sudan. These arrangements included catering for the sexual needs of the local, Egyptian, and British soldiers and government employees (1995, 528). Having legalized prostitution, the government elected to view it primarily as a medical problem pertaining to its own soldiers (1995, 530).15 In fearing incidents of absenteeism in its garrisons, the government carefully attended to its hygiene worries through the licensing and regular medical inspection of prostitutes patronized by the troops (1995, 530–531). Yet vagabondage laws prevented cross-dressing and made living off prostitution a crime. The government also asserted control over many prostitutes’ working environment through laws regulating the sale and consumption of alcohol. Whatever laws enacted to regulate, or even curb prostitution, were never used systematically, but they were always available to be applied selectively in case of need. These rules to the contrary, concludes Spaulding and Beswick, the discreet practice of prostitution was in fact tolerated; all towns and some villages supported brothels (1995, 531). After the economic recovery from the Depression, brothels in the form of merīsa (beer) shop, called by the British ‘cat houses,’ flourished in the Gezira of central Sudan. They attracted some members of the colonial administration particularly the technicians. Prostitution sources began to diversify. An influx of Eritrean and Ethiopian females came to the Sudan after the Second World War and supported themselves as prostitutes. Finally, European dancers/prostitutes started to show

15 The care the British took to inspect prostitutes and their customers among the British soldiers is vividly told in G. Balamoan (1989). Soldiers who visited the prostitutes, housed by the government in a quarter known as Bayt Gizāz (House of Glass) in Atbara town, were examined before having sex with the West African, Arab, Egyptian and Abyssinian women (1989, 142–46). Inspecting prostitutes for re-licensing at civil hospitals dissuaded people from allowing their daughters to become nurses despite the demand that had grown for the profession with the expansion of modern medical institutions. Realizing that no respectable women would apply for nursing jobs, the authorities soon found that former prostitutes often made good nurses (Spaulding and Beswick 1995, 533).

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up at Gordon Cabaret, a seedy musical hall in Khartoum. Sudanese as well as Europeans could negotiate the terms of the companionship of these dancers for the two-month duration of their visit (1995, 532–534; Balamoan 1989, 219–221). Apostasy Legalized Contrary to their claim of non-interference in their subjects’ religious affairs, the British did not shy from legalizing switching religion for Muslims, in short, committing apostasy, a crime for which sharia prescribes a death penalty. The ‘muddying of religion’ that the Mahdist poet forewarned became a reality. In 1912, the government laid down the procedures for persons desiring to change their religion. The stated objective of the legislation was to prevent quarrels arising between religious communities in case of a change of religion, especially if the applicants were minors or women. Converts, according to this legislation, were required to apply to the civil authority which would supervise and keep a record of the procedures in consultation with the head(s) or representatives of the religious community they would be leaving.16 Injured, Muslims stood back in moral recoil from subjugation to infidels as well as the immoralities they legalized. A people of a village in northern Sudan dubbed the newly introduced primary school al-kanīsa (the Church) to denounce it, and began boycotting it (Beshir 1969, 36). The code for a group of workers to know that their British supervisor, the strict Mr. Willis, was coming was ‘ẓahar al-fasād’ (depravity showed up), a phrase culled from the Qur’an (Rajab 1988, 46).17 People were watching people to see if they had been lured by the ways of the infidels. A man who worked on the Sennar Dam in the 1920s returned to his village wearing shorts and smoking cigarettes. The village people dismissed him for becoming a naṣrānī (Christian) (1988, 40). Further, seeing the picture of some Sudanese notable wearing British honorary robes that had a cross etched on them provoked a local jurist. He denounced the notables in front of some of their followers who reported him to the British District Commissioner. The jurist was promptly banished from

16

NRO, Dakhlia 39/1/3, Legal Circular, 23 March, 1912. From Qur’an, verse 30: 41, ‘Corruption has appeared throughout the land and sea by [reason of] what the hands of the people have earned so He [Allah] may let them taste part of [the consequence of] what they have done that perhaps they will return [i.e., refrain].’ 17

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the town (1988, 139–340). Finally, government properties were up for grab because stealing the property of an infidel government, according to a popular perception, was not viewed as a sin (1988, 47). Unlike common people, elites, as mentioned earlier, have accepted this deep and lasting injury as an unavoidable price of progress. In a context of religious intolerance in the 1980s, Khalid, a modernist writer, praised the wisdom of the law that legalized switching of religion for Muslims (Khalid 1993: Vol. 1, 234–235). Drinking alcohol became a mark of elite privilege. For their evening meeting-places elites chose bars for all people to see (Ahmad 1995; Rajab 1988, 237). Khalid defended drinking in the face of Nimerie’s prohibition as therapeutic since it helped ‘people relax and have fun in the tormenting and barren life in Sudan’ (Khalid 1986, 299). Accepting prostitution as a necessary evil was a rampant elite argument. Khalid commended a cleric and a member of Omdurman city council for recognizing prostitution for what it was. The council discussed a move in the 1950s to close the red-light district in the city. However, Qadi Ahmad al-Fil objected to the motion. ‘Such a move would only come from people who have no young men to look after their comfort,’ the qadi is reported to have said. Instead of rushing to close these sexual safety-valves, the qadi suggested, long-term plans should be made for marrying young men early, filling youths’ spare time, and providing work for prostitutes. In his disapproval of the moralistic impulses of the Islamization drive in the 1980s, Khalid recalled this incident to praise the moral realism of the qadi. He said, ‘The man was a pious and far-sighted man. He grasped the heart of the matter with his truthful senses and impeccable intuition’ (1986, 193). Prostitution puts in sharp relief the elites’ insensitivity to colonial moral injury. Nationalists, as young men, indulged in prostitution. Euphemistically, they called the house of comfort in which they held their literary meetings ‘salons’ a la the French and Egyptian ones (Mahgoub and Muhammad 1986, 54–60; Najila 1994: Vol. 1, 149–154; Yaʿqub 1991). Publicly, they denounced colonialism for violating the morals of Muslims by legalizing prostitution. Rather hypocritically, they blamed the ‘Turbaned People,’ the men of religion, for compromising religion by not standing resolutely against prostitution as a colonial depravity. Salih ʿAbd al-Qadir, who would emerge as one of the leaders of the 1924 Revolution, harangues the men of religion in a poem he recited in 1923:

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Muslims would live with this elite double-talk. In their moral crusades to remove munkar (what Islam prohibited, vices), premised on the understanding that the rulers of the independent country had their Islamic morals at heart, Muslims would be shocked to discover that the elites in power were insensitive to their moral plight. Their campaigns to remove brothels from the midst of neighborhoods, or move bars from the vicinity of mosques and schools, were stonewalled by successive governments. The realization that the colonialists had departed but left their laws that sanctified immorality, underpinned the drive to Islamize the state, as we will discuss shortly. Law, Politics, and Morality: The Oldest Profession in New Bottles Sudan could have hardly escaped the importation of English Common law, ‘the gift we [the English] gave to them’ (Merry 1991, 890). The British not only came to Sudan in 1898 with the tried Indian codes (based on English common law), but had also destroyed an oriental despot who presided over a state of anarchy and moral depravation. The destruction of this oriental despot, the Mahdi, led the British to believe that everything had been destroyed. There was no ‘system of administration worthy of that name . . . [of] government there was none . . . It was a tabula rasa, and all had to be created’ (Mustafa 1971, 42). This ideal situation of perceived lack of values lent itself to an ardent civilizing mission in which trust in English customs blinded the colonists to tasks other than transplanting them to the colonized soil. So much so that the colonial criminal codes not only assumed there were no worthy laws during the time of the despot, but also there were no morals whatsoever. A legal critic described the Sudan Penal Code as ‘exotic and some of its parts were completely in disharmony with the morals and Islamic convictions of the Sudanese people’ (ElKhalifa 1988, 53).18 In flagrant

18 The incompatibility of the Sudan Penal Code with Islamic morals was pointed out by a panel of Muslim Nigerian ulema who struck out these repugnant aspects of

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defiance of sharia, the Code legalized extramarital sexual relationships if based on consent. Adultery of consenting adults that had severe biblical punishments in Islam was a non-offence in the code. A consenting or a conniving husband also rendered the adultery of his wife a lawful action. Even homosexuality was tolerated by the code as long as the sexual act was based on consent. ‘That was not the case in England then,’ the critic argues, ‘Homosexuality was not yet legalized in England, only to be legalized fifty years later.’ A sexual act done to an animal, according to the code, was not an offence (1988, 55). The law permitted drunkenness and keeping or managing a brothel. A bar or a brothel needed a license to do business. In contrast, the law made into crimes practices that Muslim did not see as such. Rape was made inclusive of intercourse with one’s own wife if she were underage (1988, 55). Finally, the code bordered the bizarre for slavishly copying sections from the Indian code such as those arranging, promoting, and organizing fights between cocks, rams, or other domestic animals. Such sections were irrelevant to the Sudan as there had never been such practices in the country (1988, 55–56). Western scholars are quick to point to the parts of the Sudan Penal Code that were ‘out of harmony with ideas prevailing in Sudan’ such as the prohibition of slavery and female circumcision (Guttmann 1957, 405). However, they show no similar interest in the deliberate permissiveness of the Code in relation to indulgences such as adultery and drinking that are forbidden in Islam, and are not universally condemned as slavery. They gave a passing grade to the Code for by ‘enforcing the minimum basis of morality, [it] has protected life, liberty and property’ (1957, 416). The offense Muslims took against the permissiveness of the Code did not register with the appraisers of the Code. In a decade or so from winning independence these issues became the everyday concern of the Muslim Sudanese who had been going through successive experiments to adjust their laws to their Muslim or Arab identities. The incompatibility of law and morality became apparent at the twilight of the colonial era. A discussion at the Sudan Philosophical Society in November 1951 underlined the need for ‘a spate of legislation on matters of principle’ intermeshing law, morality and politics in the

the code when it had been recommended for adoption in northern Nigeria at a later date (ElKhalifa 1988, 53).

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law-giving age of independent Sudan (Gow 1952, 309). At the meeting J.J. Gow, the lecturer at the Law School of Khartoum University College, advises that law is inseparable from politics because law is the ‘connecting link between the ideas existent in the politician’s mind and the object which the politician seeks to achieve’ (1952, 300). He continues to say that the lawyer is or should, however, be more than a mere technician at the service of the politician. Laws, he argues, must apprehend the ‘ideas’ in which the framework of the Sudanese community is and will be cradled. These ideas, according to him, are political because they bear the impress of Sudanese cultural, historical, moral, and geographical milieus (1952, 307). To hammer in his point about the political import of law, he recommended that the Faculty of Law at the University of Khartoum be headed by a man versed in law and ‘possessed of a deep knowledge of the habits and psychology of the Sudanese’ (1952, 307). His projected law school ought to produce men whose minds are open to ‘the profounder issues of life’ (1952, 302). Building on Gow’s political argument of law, Justice Kevin D.C. Hayes of the Sudan High Court pointed in no ambiguous terms to the way Islam was going to bear significantly on the laws. In deciding on a matter of principle for the first time since being colonized in 1898, he maintained, Sudanese would naturally seek to base their legislative principles on their moral law of Islam. Although skeptical of the validity of the moral law concept, Gow acceded that law must have a moral sanction (1952, 309). It did not take long for these twilight colonial forebodings to bear fruit. The National Committee for the Sudan Constitution was formed as part of the newly-acquired right of the Sudanese to decide on the existential principles of their lives. In November 1956, the Grand Qadi, Hasan Muddathir, made his case for the introduction of an Islamic constitution to the Committee. He epigraphed his naṣīḥ a (advisement) memo with a line drawn from the Prophet’s last sermon: ‘I have left for you the Qur’an and the Sunna of his Prophet to which if you adhered you would never go astray.’19 In the memo, the Grand Qadi set the tone for bringing the repugnant, colonial laws to atone to Islam. He specifically repudiated legalizing alcohol trade and consumption, and adultery

19 For an informed take on the power of the naṣiḥ a genre in Islamic discourses see Asad (1993).

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between consulting adults (1956, 2). The two vices would dominate the discourse and practice of law reform and identity in Sudan. Independence, as a condition of national fulfillment, made rulers of the new, secular nation accountable to the Islamic moral code in ways the colonial administration could have never been held up to. The first Friday prayer of the Governor of Kordofan, who replaced the British administrator, in el-Obeid mosque shook the city. In watching their governor worshipping their very same god at the same temple for the first time in fifty years, the people were mesmerized, circling around the Governor’s car adorned by the flags of sovereignty and authority (al-Ayyam 1 January 1988). Religiousness and Religion before 1964 It did not take long after independence in 1956 for people to feel hurt by the mismatch of their religion and their laws. Importantly, independence emboldened them to ask increasingly for legislation conforming to their Islamic beliefs. Their protest would be underlined by an attitude of the soul that Simmel calls ‘religiousness,’ sensitivity to, or capacity for, religion. Religiousness, as an anguish of the soul, according to Simmel, precedes religion, defined as the institutionalization of this attitude of the soul, into laws (1997, 102–104). What fueled people’s moral rage was seeing the elites, whose tolerance for moral injury had been pointed to by Davidson, not only doing nothing to remove these vices, but also protecting and indulging in them.20 We will specially see how the first law to abolish prostitution came out of this heightened religiousness surrounding the discourse on prostitution especially after the October Revolution in 1964. ‘Letters to the Editor’ became the venue of the popular protest against colonial moral injury. As early as 1957, a reader wrote to an editor protesting the government’s edginess in connection with the opposition of the people of Rufaa town in the Blue Nile Province to opening a bar in the town. The reader was stunned seeing the government flexing its muscle by sending police from all over the province in response to a

20 The people were taken back by Nimerie’s decision to abolish prostitution. They could have never trusted an officer and scoundrel such as Nimerie to touch prostitution. A joke circulated then. A john wanted to enter the red-light district to discover that it was securely besieged by soldiers executing the order to evict the prostitutes. Astonished, the man said, ‘What is the big deal? Is Nimerie having the time of his life here?’

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rumor that the people of the town had been planning to demonstrate against the bar after the Friday prayer. Although the town that ‘has not a single European among its population’ stood firmly against the bar, the reader continued to say, it was not going to take the law into its own hands. The government, he stated, should not indulge in acts of provocation mobilizing its entire police force to protect a decision to open a bar that no one had wanted (al-Sudan al-Jadid 21 August 1957). Drinking and prostitution fueled this postcolonial moral rage. AlIkhwan al-Muslimun, the organ of the Muslim Brotherhood in the mid 1950s, opened its pages to readers who spoke to this moral injury. A reader protested the spread of serving alcohol from bars and red light zones to restaurants ‘sullying the purity of food, hanging the odors of sin and ḥ arām (forbidden) in the place.’ In distrust of the ruling elite, the reader lamented the fact that the police had no law to stop this vice. He adds, ‘A law against drinking would find the lawmakers and law enforcers themselves guilty of indulging in drinking’ (al-Ikhwan al-Muslimun 16 September 1957). Successes of the moral campaigns were also reported in the paper. For example, the removal of a red-light district from around the Commerce High School in Omdurman was joyously reported in the paper. However, the report noted sadly that prostitutes had been moving to other neighborhoods to avoid the campaign to remove them from around schools and mosques (al-Ikhwan al-Muslimun 19 August 1957 and 13 February 1958). Laxity in observing Ramadan, the month of fasting, would be another item on the agenda of this moral rage. As early as 1957, a headmaster of a high school was criticized for forcing his boarding students to break the fast. Basing himself on a fatwa alleged to Taha Hussein, the renowned Egyptian modernist, the headmaster told his students that people in charge of state responsibilities should not fast during Ramadan. By extension, apparently, students, who would assume these responsibilities in the future, were better off trained early on to skip Ramadan. The headmaster was reported to have increased the food for those who broke the fast to tempt other students to follow suit (al-Ikhwan al-Muslimun 4 April, 1958). Readers rallied to defend calling for the five daily prayers using an electric microphone, a development that came with the independence of the country to the chagrin of many an urban elite. Al-Ikhwan al-Muslimun denounced the move in Khartoum and later in Omdurman by some of these elites to stop the practice because they believed it disturbed public peace (9 September 1957).

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The period of Abboud’s junta dictatorship (1958–1964) was the time in which political opposition took a serious moral accent.21 The ‘officer’s mess’ moral debauchery of drinking and womanizing unleashed on the civil population during the junta years was revolting. The sexual escapades and scandals of the ruling class became the staple theme of opposition to the regime. Encouraged by this moral revulsion, two civil judges and a police officer of the Muslim Brotherhood raided a house of comfort and arrested leading junta and government officials. The case came to be known as the ‘Omdurman Scandal.’ The two judges were fired, and a Muslim Brother who gave a sermon about it in an Omdurman mosque was arrested (Ahmad 1981, 62).22 Further, another scandal occurred in 1962 known as the Qatilat al-Muqran ‘the Victim at the Nile Confluence’ in which a high ranking member of the junta and allegedly a predatory homosexual was accused of killing either a lover or potential witness against some of his scandals. A communist activist made the accusation publicly during his trial. The Bar Association also sought to indict the junta member and his accomplices. The Judiciary, however, was not interested (The Sudan Communist Party 1965, 19–20, 195). Finally, debauchery was said to be rampant among officers fighting the southern Sudan rebels in the South. A military governor of one of the southern provinces allegedly invited his officers and guests to entertain themselves with the thirty-nine dancers of the province folklife troupe in a raucous picnic. Allegedly thirty-one girls got pregnant (1965, 311). The moral outrage against the junta came through in the demonstrations of the October Revolution of 1964 that eventually toppled its regime. Bars were stormed, destroyed and looted by demonstrators. A bar owned by a Sudanese in Shendi town was destroyed specifically because such a business had been denied to ‘natives’ even during the colonial period. Apparently, demonstrators saw no reason why a Muslim would stoop so low to sell stuff prohibited by Islam. In Atbara town, demonstrators razed a casino on the confluence of the Nile and

21 The communists’ political campaigns were fused with a very high moral tone. See the statement the late Mahjub, the Secretary of SCP, intended to give before a court trying him in 1959 (The Sudan Communist Party 1965, 318–343). See especially pages 338–339 for specific urban forms of moral decadence. 22 Ahmad’s (1982), which is the history of the Brotherhood by a devout member at the time of writing, ignored the name of a third judge, al-Tayyib 'Abbās, whose name is mentioned in a record of the junta period compiled by the communists (The Sudan Communist Party 1965, 197).

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Atbara River to the ground. Throughout the junta years the working class town was affronted by the shady dealings transacted between the owner of the casino and the ruling and administrative elites including alleged sexual favors. K.D.D. Henderson, whose keen eye for ‘native psychology’ I noted before, makes a rare mention of the damage to bars, cabarets, and Ethiopian brothels that ‘seems to have been organized’ in the context of the demonstrations of the 1964 Revolution. He suggests that the Muslim Brotherhood must have had a hand in this selective targeting of crucibles of vice (1965: 205). The theories I heard then among modern elites to account for the unintended targets of their ‘secular’ revolution were unsuspecting. A theory attributed the action to brewers of ‘native’ beer and spirits who were jealous of the brisk business ‘modern’ bars and liquors had been doing. A second theory attributed the breaking into bars to envious folks who wanted a change from their usual popular cheap Cyprus sherry to the otherwise unattainable whisky. A joke circulated that a demonstrator looted a bar and came out with a White Horse bottle of whisky. He was telling his friends about his booty saying, ‘I got a sherry of the Horse brand.’ Cheap sherry was then bottled with labels such as the ‘Tractor,’ the ‘Two Tractors,’ the ‘Southern Girl,’ the ‘Cat,’ and the ‘Cock.’ Debauchery, of course, was not confined to the military class. It was a mark of privilege of those who inhabited the domains of colonial modernity. Young, largely unmarried, modern elites rising in government service due to the Sudanization of the colonial British officers, indulged in this leisure culture of immoderation. With an increased rate of car ownership, ‘picking up’ girls from street corners became an elite night ritual. For wakars (pleasure spots), elites had the secluded colonial ‘messes’ and bachelor quarters in the European part of Khartoum. In proper ‘native’ quarters these young men whisked girls into their ‘messes’ in which they room-mated.23 Suburban farms became increasingly available for pleasure seekers from the city. Further, houseboats began to be anchored in the Nile and used for these escapades.

23 Bachelor Sudanese officials inherited quarters assigned to young British administrators on first arriving in Sudan. One of these blocks was called the ‘Yellow Peril.’ (Davies 1957, 20). There is still a quarter on the Blue Nile, a part of the University of Khartoum housing resources, called the ‘Yellow Palace’ in Arabic although its English name used is the ‘Pink Palace.’ This last quarter was originally a military mess of the British army.

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Urban legends are told of the intersection of homosexuality, prostitution, power, wealth, politics, and bureaucracy. The demand for sex by senior officials led to a creation of a class of ‘government’ pimps, so to speak, consisting of junior government employees who traded their services for official favors and privilege from bureaucrats in high places. Anecdotes relate how a multimillionaire today started his life as one of these pimps. He started off as a clerk in one of the ministries in the 1950s. His good looks, acquiescence, and charm endeared him to his minister and they became very close. On moving to the ministry of Foreign Affairs, the minister took this clerk with him. The minister who came after the 1958 coup liked the clerk too. He was accorded custody of the minister’s household including signing checks for buying provisions. His services also included catering for his seniors’ sexual desires by providing call girls. To facilitate his pimping services, he was given a government house. His neighbors protested and asked for his removal since in any event he did not belong to the department that owned that house. He was moved to another government house in the exclusive downtown area of Khartoum. The official favors shown toward him angered other employees of the ministry. The trade union of the Foreign Affairs’ employees demanded during the leftist period of Nimerie’s regime that he be purged. On his dismissal, one of his patrons, a former minister, recommended him to his nephew who had been leading the opposition against Nimerie’s regime. Under the patronage of this nephew, the man made connections with wealthy Arab businessmen in the Arab Gulf area who used his invaluable connections in Sudan to do a lucrative business. The former pimp got rich fast and became one of the financial pillars of Nimerie’s state. After the overthrow of the regime, he was charged with some shady dealings, found guilty and fined $20 million.24 The city dwellers began to fight back against the immorality of their ruling and administrative elites. In addition to the removal of colonialism that sanctioned these immoralities, the city itself became increasingly hospitable to families with the concomitant responsibility of raising children. In the past, most married city dwellers preferred to leave their families back in the villages shuttling back and forth like

24 Notes written after a dinner in Washington, DC, to which some retired Sudanese civil servants, were invited, April 1997.

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migrant workers. Having moved their families to towns, they began to lobby for legislation delineating a moral space for bringing up their children. In being denied civil decency, families fell back on Islam as a point of moral reference to demand legislation befitting their families (Burgat 1997, 39). Families were specially offended by women being brought to bachelor messes in their midst. Neighbors began their offensive by keeping close watch over these messes and besieging them whenever a woman had been spotted being taken inside one of them. Many a member of the elite was scathed by this popular revolt. Messes became anathema to families, and landlords were talked into not renting their property to unmarried men. Hand in hand with this drying up of elite sexual indulgences went the prostitute removal from among family dwellings. From Religiousness to Religion Prostitution and other vices became high on the agenda of a grassroots moral campaign after the October Revolution in 1964. A writer described prostitution as the vice that would shame us before God on the Day of Judgment (al-Mithaq al-Islami 12 June 1966). Average Muslims were indignant to realize that the existing laws did not punish these vices. In a moral world run amok they were left with only their religiousness to take refuge in. Muslim activists piously and carefully nurtured this religiousness and ultimately religionized it in a call for the rulership of God. Al-Turabi, the leader of the Muslim Brotherhood, asked, in his first words in the 1965 Constituent Assembly, that the government give priority to the campaign against prostitution and um al-Kabāʾyir (the ‘mother of sins,’ that is, alcohol) (Ahmad 1982, 74). Encouraged by this initiative to implement Muslim law, families resorted to vigilante action to shake the complacent state. Al-Mithaq al-Islami, the new organ of the Muslim Brotherhood, again opened its doors to the voices of this religiousness. The paper teemed with reports protesting alcohol consumption and prostitution, the weakness of the municipal laws enacted half-heartedly against these vices, and the complacency of the authorities. Even the Grand Qadi, whom a delegation had approached to remove an amusement park from the vicinity of old Khartoum Mosque, had to wait for the city government to decide on the matter (al-Mithaq al-Islami 19 December 1965).The vigilante activities substituting for the lethargy of the state were given

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full coverage. Readers wrote letters protesting organization of a of Miss Sudan pageant. Drinking alcohol during Ramadan, the month of fasting, came under fire. In 1966, a reader pointed to the paradox of a situation in which politicians were ready to Islamize the state but unable to close restaurants and bars during the holiest month of Islam (al-Mithaq al-Islami 23 December 1966). Readers would report on mixed picnics in which government officials would use government facilities and be seen scantly dressed (al-Mithaq al-Islami 13 July 1967). Readers abhorred the state’s apparent support of vice. A reader pointed out the irony of a situation in which the police arrested the civic leaders of a town to prevent them from allegedly burning up the anādī (‘native’ bars) during a celebration of the anniversary of the 1964 October Revolution. The reader blamed the police for acting on a rumor based on an incident that had occurred during the same anniversary the previous year in which the townspeople burned down fifty ‘native’ bars. But this severe action, according to the reader, did not deter the anādī owners, who only moved to the center of the city. The civic leaders were determined to pursue the fight and focused on talking landlords into not renting their properties to these bars. The police acted, according to the reader, on a tip from a bar owner (al-Mithaq al-Islami 24 October 1966). This power of vice must have tortured the reader. The encroachment of red-light districts into neighborhoods resulted in tragic, violent crimes. In the New Extension and al-Zuhur, neighborhoods of affluent middle classes in Khartoum, vigilante groups gathered around searchlights to shame pleasure-seekers from knocking on the doors of the comfort houses in these neighborhoods.25 Their trick to embarrass ‘the johnnies’ earned them the name jamāʿat al-nūr (the light people). In Medani town, comfort houses infiltrated certain neighborhood to the extent that families had to put the sign ‘manzil aḥrār’ (a family lives here) to no avail. Whole neighborhoods in the town rose in rebellion after a pleasure seeker knocked on the wrong door, and then killed the owner of the house who had not liked his intrusion. This was the second prostitution-related crime in a row in the town. Having no faith in the local authorities upon whom they had been showering complaints since colonial times to no avail, the

25 See how a Northwest Washington D.C. neighborhood frightened drive-by johns by mounting video cameras capturing prostitutes getting into cars in The Washington Post (20 October 1991).

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neighborhoods petitioned al-Azhari and other government authorities to resolve this problem (al-Mithaq al-Islami 23 November 1966). Certain reports about these moral laxities were cleverly written to get al-Azhari’s attention. In a visit to Medani town, a reader found a whole neighborhood hoisting the tri-color Sudanese flag: blue, black and green. Naively, he wrote, he thought that the flags were paraded to celebrate al-Azhari’s scheduled visit to the town. To his chagrin, the reader discovered that the neighborhood was anādī (‘native’ bars). Hoisting flags, traditionally white in color, signals that the place is open for business (al-Mithaq al-Islami 2 October 1966). Protesting the abuse of al-Azhari’s sacred symbol was a smart way to access his favor. Neighborhoods close to anādī were also complaining about the bad impact they could have on their children (al-Mithaq al-Islami 11 August 1965). Mosques became a hub of neighborhood meetings to discuss Muslims’ moral injury. Letters written by ‘X on behalf of worshippers at Y mosque’ became emblematic of this religious resurgence and mobilization. A bar opening in Kasala town was opposed by worshippers in one of the town’s mosques. In their short letter to the editor, they pointed to the irony of licensing alcohol drinking, a forbidden indulgence in Islam, at the time when the government was making its utter commitment to implementing an Islamic constitution (al-Mithaq al-Islami 15 August 1965). The protesters were apparently following the discussion in the Constituent Assembly at the time when the Minister of Local Government had been applauded for supporting a motion to stop serving alcohol in public parks. The motion was initiated by the Women’s National Front, dominated by the Muslim Brotherhood, in the context of its Parks Week (al-Mithaq al-Islami 11 August 1965). Four months later, a Brotherhood MP tabled a motion to stop importing alcohol to counteract a government proposal to increase customs on it (al-Mithaq al-Islami 28 December 1965). Readers were exceptionally angered by the helplessness of the state to execute even the weak measures it had taken against prostitution. Municipalities issued laws regulating prostitution rather than banning it. Houses of ill repute could only operate from a distance of 500 meters away from schools and mosques. In being indicted, a prostitute theoretically would be fined and ordered to evacuate the house of comfort. But in fact prostitutes indicted under these laws were never forced to evacuate their places. Some prostitutes, according to a reader, were not evicted from their houses for two long years although vigilante groups had taken

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them to court ten times. Besides being complacent, the police at the disposal of city administration were too few to attend to such entangled cases. Ironically, the reader goes on to say that the municipalities that complain police shortage kept their wardens busy chasing hawk peddlers from the streets (al-Mithaq al-Islami 25 August 1965). What hurt these Muslims most was realizing that they could do nothing against a prostitute who owned her brothel because the law of the land protected property irrespective of what went in it.26 Muslims so morally injured by this protection extended to brothels in the name of the law had to wait for Nimerie’s Islamic courts to see houses of ill-repute auctioned after the indictment of their owners for prostitution (al-Sahafa 26 October 1984). Elites were seen by average Muslims as too good as customers of the houses of comfort to worry about prohibiting prostitution. They were accused of being the sponsor of Ethiopian immigrant prostitutes. Individual elites would claim an Ethiopian prostitute as a domestic servant or nanny to protect her from immigration authorities. If caught, an Ethiopian prostitute could always depend on a doctor to delay her deportation for medical reasons. Some prostitutes were connected to higher authorities in the state and would reveal the connection to intimidate policemen. A policeman, a reader wrote, filed a suit against a prostitute who had resisted arrest during Abboud’s regime (1958–1964). She told him to his face that he was a phone call away from being fired if she spoke to two kibār (in high places) government officials. The two officials did not comment on the case when the story was published. The case itself was forgotten and the policeman, it was said, had been transferred to a remote part of the country. Readers were also oppressed by the solidarity of prostitutes in defying and mocking the law. If fined, a prostitute would collect the money in the court from her supportive prostitute friends for all to see (al-Mithaq al-Islami 25 August 1965). In addition to these cries for help from concerned readers complaining about specific cases of prostitution, al-Mithaq al-Islami became a hub of discussions on the sociology of prostitution. In rebuttals of views justifying public prostitution as a lesser evil than secret forms of it, some readers would recommend early marriages to take care of sex

26 In old neighborhoods of colonial Omdurman city property-owning prostitutes were accepted as your next-door neighbor. Some of these women became normal neighbors to families in the neighborhoods performing all forms of social rituals, which were returned by aḥrār (non-prostitutes).

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compulsions. Such a recommendation, however, contended with the sky-rocketing expenses of weddings at the time. Readers would reply that these exorbitant expenses violated Islam’s instruction to keep money transactions in marriages at their minimum. These readers separated Islam from what they saw as matriarchal customs which auction women to the highest bidder (al-Mithaq al-Islami, 6 December 1966). Readers noted with irony that prostitution was practiced in certain places associated with historical national valor. For example, prostitution in Kosti town, the headquarter of the region that includes the sacred shrines and historical battles of the Mahdi of the nineteenth century, made a reader recall the time when the Mahdists had been waging their jihad against ‘Turkish corruption’ (al-Mithaq al-Islam 2 December 1966). Another reader reported about a notorious house of comfort in Shendi town where, he reminded his readers, the people of the region had displayed utmost manliness and fortitude in 1822 by burning to death Ismail, son of Muhammad Ali Pasha, the Khedive of Egypt, for his overbearing and arrogance (al-Mithaq al-Islami 10 October 1965). Nationalism was made to factor in this discourse of prostitution. A reader brought to the discussion the element of the foreignness of the prostitutes, most of who came from Ethiopia. His critique in fact was directed at the laws of immigration that were too lax to dry up this major source of prostitutes at the time. His insights in the economy of prostitution were sharp. Rather than accuse landlords of greed and meanness, he saw them as pragmatic businessmen. Regardless of the hefty rent, he argued, a landlord would not dream of renting a property in a red-light except for prostitutes (al-Mithaq al-Islami 25 August 1965). On Prostitution: The Left and the Rest The religiousness generated by the incident at the High Teachers’ Institute, in which a student made reference to prostitution in the Prophet’s house, can be viewed as a negative commentary on the times in the 1960s in the country. For Muslims, the prostitution alleged to have happened in the Prophet’s house is a non-event since the Qur’an says so. Instead, the religious response to the student’s ‘blasphemy’ reflected on a time of disquiet in which people had to live with immense counter cultural realities such as communism, prostitution, Westernization, etc. Sharia was resorted to as moral grounds for a world gone amok. The ‘vices’ of communism and prostitution were feared as the two faces of the same

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coin. Communism as the underwriter of prostitution, believed to be the highest stage of the communism of women, became a rallying point of this religiousness. In tandem with the campaign to dissolve the SCP, the Prime Minister promised the nation that he would push legislation to delegalize prostitution (al-Mithaq al-Islami 17 November 1965). The leftists, however, failed to come up with a plan of thinking or action to influence, or befriend, a rising grassroots movement determined to put an end to colonial prostitution. In their insensitivity to this popular moral outcry, leftists, as modernized elites, exhibited the elastic capacity for tolerating colonial moral injury. Instead, and true to their Marxist economic argument, they downplayed the moral aspect of the problem of prostitution to underline its source in the economic and social hardships of women. In the eyes of leftists and liberals, the moral issue about prostitution was the highest stage of hypocrisy. In looking rather at the social and economic issue, they wanted to deny their Islamist rivals the benefit of using this moral card. The slipping of this card into the imposition of sharia, as the ultimate solution of all moral ills, was not foreseen. The economic foundation of the moral advocacy of the SCP came clearly through in a statement issued immediately after the incident at the High Teachers’ Institute. To defend its moral fabric, the party quoted its constitution requiring members to be upright, well mannered, and faithful to the cause of the people, namely, the social ownership of the means of production and the rule of the working people. The statement went on to say that accepting prostitution as a normal course in life, as had been suggested by the alleged communist student, was not something that the party subscribed to. The party’s fight against poverty, the statement reasoned, was morally informed to open wholesome ways for men and women to lead an honorable and worthy life. Poverty degrades, argued the party, and need leads to violation of ʿarḍ (personal and family honor) and the spread of prostitution. In the party’s program, women are called upon to be effective agents in building the society on the basis of decency and love. It was absurd, according to the statement, that a party with such moral fortitude could be accused of degrading women and normalizing prostitution (Silayman 1968, 238–241). The idea of the origin of prostitution in economics blinded the party to the intensive moral politics surrounding it. Inattention to this came through in the rejoinder of Mahjub, the Secretary of SCP, to al-Azhari’s address of 1968. In focusing on those moral issues in his address, al-Azhari, Mahjub said, had meant to distract the people from the rise

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of a rich, parasitical class that was the mother of all corruption. No Islamic or positive law, Mahjub stated, would eliminate the squalor of this class. Immoralities such as prostitution could only be removed, Mahjub maintained, by deep economic changes having the needs of people at heart (al-Ayyam 24 December 1968). Seeing moral rage as a form of bad faith was rife among liberal modernists too. Awadalla, the former Chief Justice, saw al-Azhari’s address as lacking in wisdom for it meant to distract attention from the immediate problems facing the country (al-Ayyam 25 December 1968). Al-Majdhub (d. 1982), a hedonistic poet and a shrewd observer of his times, represented fully the distaste of modernists for moralization. In letters he wrote to a friend during the campaign to abolish prostitution, he dismissed the campaign as too hypocritical to merit the political fervor it had been evoking. The ʿāna (public region) of an Ethiopian prostitute he knew, he writes, is purer and more wholesome than the beards of those who call for her deportation. He also expressed his apprehension of the social repercussion of the decision to deport the Ethiopian prostitutes. What we would end up having as a result of deportation, he quips, is the Sudanization of prostitution. In his uninhibited expressive ways of using the ‘f ’ word in his colorful conversations, he noted that he would rather follow the prostitutes back to Ethiopia for fear that the Muslim Brothers would ‘f . . .’ us all if they did not find what to ‘f . . .’ (Abu Sin 1997: Vol. 1, 200; 1997: Vol. 2, 13). Leftists were also seen on the wrong side of the fight against prostitution for pure professional reasons. In the 1950s and 1960s, prostitutes would hire them to defend their businesses. Ahmad Silayman, a member of the Central Committee of the SCP until the early 1970s, and ʿAbd al-Wahab M. ʿAbd al-Wahab, an ex-communist, were the advocates for Fatima Ibrahim and others prostitutes in Sudan Government v. Fatima Ibrahim and Others (1957). The accused were convicted of violating a Khartoum Municipality Council Order which states that ‘no common prostitute or any person who keeps a house for common prostitution shall reside in any house’ in certain blocks specified in the third class extension area in Khartoum South. The Order was issued under the warrant of the Local Government Ordinance, 1951, empowering the Council to ‘eradicate prostitution.’ On appeal in 1959, the counsel of the accused objected that this order was ultra vires. In confining prostitution to certain places, the lawyers pleaded that the municipal order did not ‘eradicate prostitution’ but in effect recognized it. None of the judges who

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reviewed the case saw any merit in the argument. The appeal judges held that since the words in the warrant ‘to eradicate’ must be understood as meaning everything ‘fairly construed as tending to eradicate,’ the Khartoum Town Council did not act ultra vires in passing the Order.27 Such an exercise in mumbo jumbo by lawyers in defense of prostitution not only put leftists on the wrong side of these social issues, but also precluded their leaders from realistically assessing the moral rage of the people whom they had claimed to be their vanguard. But leftists varied in their take on the problem of prostitution depending on their station in life, aptitude, and gender. Leftist parents could be seen at the leadership of the drive to chase prostitutes out of neighborhoods. Khalid al-Mubarak, a former member of the SCP with an impeccable high moral personal sense, wrote as late as 1991 condemning the complicity of the authorities in his hometown, Kosti, with prostitutes during the 1960s. He talks about a mosque whose sponsor had been fighting unsuccessfully to shut down the houses of comfort surrounding it. Al-Mubarak suggests that the prostitutes apparently had some influence with the authorities. People, he says, said that their confidence in the truthfulness of those in power reached rock bottom. To put down those who pleaded the removal of prostitution because it disturbs the peace of worshippers, prostitutes allegedly said the call for prayers at the mosque had been disturbing their peace too (in Shulqami 1991, 221). Many leftists, car-endowed men were too indulged in saḥ ib (literally, ‘withdrawal,’ i.e., picking up girls) or visiting prostitutes to reflect on the politics of prostitution to form a legal perspective on the issue, which should have been incumbent on a social movement such as the one led by the popular SCP at the time. The residences of the elite cadre of the movement in neighborhoods and the government messes they rented were sites of socially, if not legally, illicit sex. People in the neighborhoods were increasingly empowered by the rising moral imperative to watch these sexual indulgences. The catch of these moral vigilantes was substantial. As a result, young bachelors found it increasingly difficult to rent a house in family neighborhoods. A young leftist leader embarrassed a working class town by being caught in a sexual act by average people who had no quarrel with his politics. 27 The Sudan Law Journal and Reports 1961, Sudan Government v. Fatima Ibrahim and Others. 143.

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Feminist women, on the other hand, were particularly affronted by the elitists’ saḥib pleasures. Although she came rather late to write about the phenomenon, ʿAwatif Sidahmed stands out for her outspokenness against the power of the private car as a vehicle of sexual enticement. With the chronic public transport problem in the early 1980s, the autostop became a popular alternative to reach destinations. The abuse of this mode of transportation by pleasure-seekers, lustful car-owners, was the butt of her robust feminist writings. Her narratives of personal abuse in autostop encounters were engaging and revolting. ‘Human and sexual relations are not monsters born out of a ride of half an hour in a car,’ she writes, ‘They mature in wider and healthier geographies than the lustful snares of a ride’ (Al-Ayyam 8 February 1983).28 The left had its fleeting moments though of reflecting on the moral imperative surrounding prostitution. The Social Studies Society of the University of Khartoum, dominated by leftist students, called for a debate of the issue in January 1968. A panel was put together to discuss whether prostitution is a social necessity. Two renowned psychiatrists, al-Tijani al-Mahi, adored by leftists for his erudition and political honesty, and Taha Baʿshar, a leftist, debated for its necessity and unnecessariness, respectively. Al-Mahi, who was inclined to see prostitution as a fact of biology, was pessimistic of ever seeing it go away. In situating it in culture, Baʿshar, however, was positive that responsible upbringing would take care of the problem. Unlike the popular praxis against prostitution, none of the discussants, for being modernists, saw any redeeming value in religion per se in handling prostitution. What dominated the discussion was the modernist drive for finding a root social cause. The religious belief of the outright sinfulness of the practice was not a consideration.29 Leftists continued to have this soft point for prostitutes even after the delegalization of prostitution during President’s Nimerie’s era. As late as 1998 leftist elements organized an international campaign to save the lives of four prostitutes condemned to death by a court in Sudan under the Islamic regime of al-Bashir. The signatures invited over the Internet ran into ten single-space pages. No doubt, the primary motive behind

28 For her call of respect for women’s human and intellectual assets see, al-Ayyam 12 October 1983. 29 ‘Is Prostitution a Social Necessity?’ Sudan Society (published by the Social Studies Society of the University of Khartoum), 1969: 90–93.

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the organization of this drive was the opposition to the regime in place. But the target of this sustained, successful campaign is not without its own cultural point. Not even a petition to ask the regime to go had gathered such support and momentum. The conviction that the government was harshly punishing victims of its policies that degraded and impoverished the country may be read as a subtext of the oppositional investment in this campaign to save the lives of the prostitutes. The Birth of the Anti-Prostitution Act, 1968 Although al-Azhari’s address may be dismissed as exploiting religion to political ends, it underlined as like never before the divergence of the colonial laws and Muslim moral sensibilities. The address polarized and politicized this discrepancy conceived to be a ticking bomb waiting to explode by even British judges just before the independence of Sudan. Embarrassed by this dichotomy, common law judges and scholars laid the blame for the perpetuation of the discrepancy at the doorstep of the legislature. Abd al-Majid Imam, a highly respectable judge and the deputy Chairman of the Court of Appeal, reiterated that judges apply the laws existing at the time of the committing of the crime. They would wreak havoc and anarchy, he argued, had they improvised laws after the fact. The judge of al-Gedarif, who looked into the sodomy incident that enraged al-Azhari, Imam stated, could not have opted out of the binding law to apply sharia that could have stoned the accused to death (al-Ayyam 24 December 1968). Said M. Ahmad, a common law scholar and a Marxist, previously made a similar call upon the legislature to step in and delegalize homosexuality, if that was the will of the people. Said rightly pointed out that the Judiciary had been doing more than applying the law since its establishment. In fact, he maintained, that legislating laws had burdened it too. It was high time, he argued, that the Constituent Assembly should take up the responsibility of law making. He stated that it was within the power of the Assembly to delegalize prostitution any day any time by issuing temporary orders (al-Ayyam 2 December 1986). The legislature was quick in its response to this judicial fatigue. ʿAli M. Hasanayn, an MP of al-Azhari’s party, drafted the first law for the prohibition of prostitution. In drafting this law, Hasanayn was merely continuing a fight against sexual laxity he had begun as a young judge

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in 1963 in circumstances already noted in this chapter. After leaving the Brotherhood, Hasanayn joined al-Azhari’s party and was elected to the 1965 Constituent Assembly. He attracted attention to himself by solidly supporting the dissolution of native administration, an extremely unpopular stance in his own party since it enjoyed considerable following among tribal chiefs. In his interpretive note to the law draft, Hasanayn criticized the colonial Penal Code in force for drawing absolutely on Western, and largely British, sexual norms. Unlike the sharia code of sexuality, the Western laws regulating Muslim Sudanese moral space, he stated, permitted sexual intercourse as long as the two parties were consenting adults. Prostitution in the West, he continued to say, is prohibited for being a transaction based on money. If the money factor is absent, he stated, a sexual intercourse outside the conjugal setting is deemed legal, in that it is an exercise in personal freedom. In certain cases, according to Hasanayn, the Sudan Penal Code was even more promiscuous than the British code. For example the code did not delegalize sodomy whereas the British law did. To bring prostitution within the parameters of Muslim moral economy, Hasanayn proposed that it should be described in strict sexual terms irrespective of the involvement of money. Instead, he proposed that prostitution should be defined as any sexual intercourse between a man and woman that are not bound by a valid marriage contract. If consent was involved in intercourse outside the marital union, he wrote, the intercourse would be indicted as adultery. In case that force or an underage female were involved in an intercourse so described, he added, the intercourse would be punished as rape. Similarly, Hasanayn’s draft delegalized all forms of sexual intercourse between men. If consent was involved, the intercourse would be punishable as sodomy. In case that force or if an underage male were involved in intercourse between men, the draft would indict the act as perversion. To protect children from all forms of perversion, the draft prevented children under the age of 14 from entering public places in which alcohol was consumed. Children were commonly seen at the time working as helpers in bars. The draft did not shy from including saḥ ib, the picking up of women by car-owning elites, in its definition of prostitution. The draft also addressed brothels in the light of renting and property laws that were too renter- or owner-friendly and thus failed those who had tried to stem prostitution by evicting prostitutes and punishing the landlords who rented to them. The draft empowered local authorities to carry out

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instant evacuation of houses of comfort and to punish the owners of the premises themselves. Hasanayn’s law thus inaugurated sharia legislation bringing regulation of sex to conform to the Muslim moral code. Two amendments of the law in 1976 and 1982, the latter supervised by al-Turabi, the Attorney General, continued refining Hasanayn’s law. The draft is a dramatic example of how religiousness turns into religion, that is, a set of laws and institutions. The Anti-communism of the Qadis The expertise and moral authority of the qadis was in demand in the aftermath of the 1964 October Revolution in which modernity and secularism found an unrelenting, albeit culturally vulnerable, champion in the SCP.30 In equating anti-communism with the defense of Islam, the nation, and democracy, politicians had to seek the help of the qadis to suppress communism. In turn, the qadis welcomed the coming of the mountain to them. Their historical grievances against colonial modernity might have at last found a listening ear at the decision-making level. The qadis found a champion in the SCS chaired by al-Azhari. The SCS liaison with the qadis was ʿAbdullahi al-Fadil, a member of the council and the grandson of the Sudanese Mahdi of the nineteenth-century, who had been outspoken about his religious and political sentiments since the 1950s.31 But it was al-Azhari, the head of the state, as clearly shown by his Bairam’s address in 1968, who wanted to be seen redressing qadis’ historical grievances in the context of the decolonization of the law, restoring the authentic nation and culture, and combating further invasive Western influences represented by the virulent SCP. In having support at the highest level of authority in the country, the qadis could not only achieve parity with the civil justice, but also secure autonomy for their Division to keep the high-handed Civil Division at bay.

30 In face of the anti-communist rural masses mobilized against it, the SCP broadened its mandate to defend modernity per se. Mahjub, the Secretary of the SCP, once lowered the bar for fighting for progress to include everyone who cared to wear an ironed shirt, a symbol and a privilege of modernity (al-Fajr 28 June 1998). 31 Of all the dignitaries lobbied by the Muslim Brotherhood to endorse the call for the implementation of an Islamic constitution in 1958, Mr. al-Fadil was the most enthusiastic and supportive (al-Ikhwan al-Muslimun 29 May 1958).

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The anti-communist drive found sharia legitimacy in a fatwa issued by the qadis. On November 17, 1965, a week after the alleged communist student abused the Prophet and his household, the Grand Qadi and the top brass of the Sharia Division and Omdurman Islamic University issued a fatwa declaring the apostasy of the student.32 Unlike other apostates, the student, since he was found guilty of abusing the Prophet, was deprived of the three-day reprieve given to an apostate to reconsider his heresy and repent. The fatwa described the student’s apostasy as the tip of the iceberg of the culture of atheism it held the SCP responsible for spreading. It concluded by asking the authorities and legislators to protect the beliefs of the Sudanese by banning the SCP, purging its members from the teaching profession, and persecuting those who advocated the communist creeds (al-Mithaq al-Islami 17 November 1965). In Chapter 5, I will analyze in detail the conflict between Taha, the modernist Islamic reformer and founder of the Republican Party in 1945, and the qadis. However, I found it useful for the elucidation of the politics of the qadis after the Revolution of 1964 to begin in this chapter discussing the first showdown between the qadis and Taha in the years 1966–1968. This first roughening in the relationship ended in the first apostasy ruling against Taha by the Sharia High Court in 1968. Readers who are anxious to familiarize themselves with the religious underpinnings of this conflict are advised to flip over to Chapter 5. Although the qadis and the clerics had always disliked Taha’s views, they were especially affronted by his outspokenness against their campaign to delegalize the SCP after the incident of the High Teachers’ Institute. Taha disapproved of the politicization of the communist student’s utterances in the discussion at the Institute. He described the student as pathetic, a person who needed to be counseled and introduced to

32 These views and positions had already been articulated in a memo presented by the clerics of al-Mahad al-ʿIlmi of Omdurman in a procession on November 11, 1965 to the government (al-Mithaq al-Islami 17 November 1965). The Muslim Brotherhood’s organ, al-Mithaq al-Islami, was leading the campaign to disband the SCP astutely and unrelentingly in its editorials. See its editorial for 14 November1965 for a line-building argument for the dissolution of the party. To discredit the SCP, described as the party resident in Sudan, as a potential threat to democracy, the editor referred to atrocities he alleged the communists committed in Iraq in the 1950s and in Indonesia in the 1960s.

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the generous reality of Islam. To the chagrin of the qadis, he confessed that he had been persuaded by the argument of the SCP. The argument denied responsibility for the statement of the student, a member of a Maoist splinter group that had been actively undermining the SCP work. Taha saw the anti-communist campaign as a cheap propaganda stunt tailored to suit his rival, the Muslim Brotherhood. Worse still, Taha went on to say that the disbanding of the SCP would play into the hands of the politically bankrupt majority parties and their popular Sufi brotherhoods underwriters. It was the successes of the SCP, Taha noted, that irked this conservative alliance and not a genuine concern for Islam. The basic thrust of Taha’s argument is that legislation against the SCP was tantamount to wishing the party away. Instead, Muslims should pick up the challenge of communism forthrightly and creatively by reforming Islam to speak to the young men and women who sought deliverance in the robust SCP (al-Midan 15 November 1965). Taha’s own comment on the incident focused on the statement issued by the Sharia Division for which he had never hidden his disdain. He described the statement as ‘awful,’ written by people who ‘know nothing about politics although their knowledge about religion can be said to be adequate.’ He continued to say that he would rather discuss the matter with them in religious rather than political terms. He criticized the statement for not allowing the student a reprieve to reconsider his statement and recant. Taha was baffled by the qadis closing the door of atonement, the widest of all doors in Islam because it is the door of mercy and blessings. Taking mercy and atonement out of religion, he argued, disqualifies the clerics from being the spokesmen of Islam. It was because men of religion emptied religion of basic goodness and love, he maintained, that young men and women, like the pathetic student, had flocked to communism. These young people, he said, were particularly disappointed in religion for seeing qadis and clerics putting religion in the service of political authorities (RP, Port Sudan 1975: Vol. 1, 35–40). Taha meant his critical intervention to be a preemptive strike against an Islamic constitution in the making. The ultimate draft of this constitution was issued in 1968. Taha and his Republicans, along with the secularists among the professionals and the communists, continued to criticize and mobilize against, in their own words, ‘the so-called Islamic constitution.’ Taha saw this constitution as a religious cover to perpetuate the rule of the dominant and historical religious brotherhoods (RP, December 1974, 4).

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The first apostasy ruling against Taha in November 1968 occurred in the course of his unrelenting campaign against the Islamic constitution. Taha’s memories of this month of his discontent are particularly instructive about the deal between the clerics and the SCS to get him. In November 3, al-Amin Daud, an unforgiving enemy of Taha and plaintiff in the 1968 apostasy case, received a letter from ʿAbdullahi al-Fadil, a member of the SCS, acknowledging the receipt of his book in which Taha’s views were attacked as heretical. Al-Fadil was grateful for the book and expressed his wish that Taha would be severely punished for his apostasy. On November 14, 1968, the SCS, led by al-Azhari, mobilized the state to prevent Taha from giving a talk at the High Teachers’ Institute in Omdurman. A letter from the Grand Qadi to al-Azhari triggered the mobilization and security organs to stop Taha from giving the talk for fear that what he might say would provoke Muslims into riotous actions. The Dean of the Institute was contacted by al-Azhari to cancel Taha’s lecture. Taha came and gave his talk anyway because the student group that had invited him to give the talk insisted (RP, November 1975, 5). On November 18, 1965, the Sharia High Court heard the case against Taha on charges of apostasy filed by Daud. Although indicted for apostasy, Taha, who had refused to dignify the court by appearing before it, remained free because the court had no jurisdiction in the issue. The colonial and postcolonial politics originating and perpetuating this incomplete jurisdiction will be discussed at length in Chapter 5. Undeterred, Taha continued his fight against the ‘so called’ Islamic constitution with an added vigor and rancor after his unlawful indictment. In retaliation, he organized a week of political and cultural activities and called for the disbanding of the Sharia Division of the Judiciary (al-Mithaq al-Islami 24 December 1968). The qadis were not only embarrassed by the fact that Taha, an apostate, was at large, but also because he continued to propagate his heresies and vilify their court. On January 10, 1969, the Grand Qadi wrote to the Minister of Interior asking him to restrain Taha and his followers from discussing Islam. Their books, he added, should be confiscated. This complaint and others about Taha caused the SCS on March 3, 1969, to invite a number of clerics to meet and discuss Taha’s heresies (RP, December 1974, 80). Persecuting Taha, however, came to a dramatic end on May 25, 1969, when Colonel Nimerie led his coup, which among many other things, was a protest against the Islamic constitution in the making. The coup retired the ancient regime of al-Azhari and his clerics.

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The ambitious leftist officer would later condemn the clerics for being a ‘tool used by politicians’ (RP July 1975b, 28). Chapter 5 will pick up from here to discuss the events leading to Taha’s second apostasy ruling and his ultimate execution in January 1985. The Pride of Turbans: Qadis won the Autonomy of the Sharia Division The qadis’ religious politics paid off. Under the patronage of the powerful SCS, the qadis’ historical grievances were redressed to the very last one. The undoing of their subordination was exact, unforgiving, and surgical, to even revisiting areas in which injustices had been more theoretical than real. Scholars even argue that this belated fairness to them might have gone overboard and hurt their cause down the road. Regulations were quickly passed in 1966 to equalize the salaries and other entitlement of qadis with those of the civil judges. The longstanding subordination of the Sharia Division to the Civil Division was put to rest by a constitutional amendment in 1966. As a result two completely separate, parallel, and independent divisions were created within the Judiciary. The Chief Justice, a senior civil judge by definition, was stripped of any administrative control of the sharia courts. Each division was made responsible directly to the SCS for the discharge of its functions (Akolawin 1973, 177; Salman 1977, 94–95). The 1967 Sharia Courts Act, that repealed the Sudan Mohammedan Law Courts Ordinance, 1902, redressed the qadis’ complaint in areas of the jurisdiction and power of their court. The Act endowed sharia courts with the power to execute their judgments without interference or help from the civil courts.33 A range of laws derived from the Act gave civil and criminal powers to sharia courts to carry out their decisions. For starter, all sharia cases then awaiting execution were promptly transferred to sharia courts (Salman 1977, 96). Sharia Court Execution Act, 1968, Lāiḥ at Ijrāxāt al-Tanfīdh, was issued pursuing Section 8 of the Sharia Courts Act, 1967. The qadis joyously preambled it, ‘Praise to the Lord who blessed us and endowed

33 A qadi from outside Khartoum wrote to the Grand Qadi on December 4, 1965 suggesting that qadis should push for having the power to execute their rulings. Being privy to the negotiations it had had with the SCS, the sharia authorities replied to the qadi that he would soon hear the good news about his complaint (Sudan Judiciary Archives, Personnel Committee, Civil Division of the Judiciary).

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us with executing our sentences.’ Child support was one of the many areas the sharia court was made in charge of thanks to the Execution Act. As a result the Sharia Court of Appeal was empowered to execute decisions of child support within the allowed percentage of one quarter of the salary of a government employee. Moreover, according to the Execution Act, 1968, Section 3, sharia courts could deduct more from a deadbeat father than the fiscally allowed percentage. A defendant could appeal such a decision to the Sharia High Court. As noted in Chapter 1, women’s organizations had been very supportive of such an increase in child support. In the execution of al-ṭāʿa (forced return of a wife to husband) rulings, the qadis showed a restraint characteristic of those who are free and unhampered by an authority looking over their shoulders. The Sharia Courts Rules of Execution Measures, 1968, directed that ṭāʿa should be executed peacefully. A wife so ordered would be given a week to cope with the decision. After that the court would order her arrest and return to her husband. In case she deserted him again, he could file a new suit in a period no less than six months (Section 20). Except for being the ones in charge of executing ṭāʿa rulings, the qadis had changed very little in the procedures of executing such rulings already in place since colonial times (Fluehr-Lobban 1987, 121). The qadis, who had been accused of being idle before, were kept pretty busy by the work of executing their courts’ decisions. The Sharia Courts Rules of Precautionary Measures, 1968 and the Sharia Courts Rules of Criminal Procedures, 1968, increased the volume of executive work of the qadis. Pursuing their rules of precautionary measures, qadis could arrest a defendant whose actions indicated that he had been hindering due process by planning to leave the country or the court’s jurisdictional area, or by tampering with the wealth at issue, or smuggling it outside the country (Section 5). Also, Lāiḥ at al-Ijrāxāt al-Janāiyya (Sharia Courts Rules of Criminal Procedures), 1968, gave punitive powers to the historically harmless and toothless court. Theses rules empowered the qadis to arrest persons who hid to avoid a summons, failed to appear before the court, refused to provide testimony or committed perjury, opposed or resisted a qadi or a court official, resisted the selling of property under court orders, violated any court orders, or committed contempt of court. Those found guilty of any of these violations of the law were imprisoned for no more than seven days and/or a 5-pound fine (Section 1). Qadis, however, still had to resort to criminal courts if a violation was seen to invite more severe punishment. According to the Sharia Court Rules of

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Criminal Procedures, Section 3b, a sharia court would refer this person to the criminal court that had the power to imprison for six months and fine up to 20 Sudanese pounds, or both punishments. These acts were designed to empower an effeminate court. The Sharia Courts Rules of Criminal Procedures, 1968, Section 2, specifically mentioned that the punishment for the given violations was intended to give the sharia court its due respect. However, Section 8 of the Rules went at length, not justified in a ‘Rules’ format, to advise qadis to use this power circumspectly, judiciously, and only in extreme necessity. This Section strikes one as an apology from the court for having to assume this punitive stance. It reiterated that sharia courts do not want its relation with the public to change because of the punitive powers it had finally acquired. The court wanted to continue functioning on the basis of the old liberality resting in coaching people to do good unto God. The Sharia Courts Act, 1967, addressed two colonial restrictions that aggrieved qadis. First, the sharia courts had been denied jurisdiction in cases where only one Muslim was involved, or where two Muslims married in a non-Islamic ceremony. Second, colonial law opened the door for Muslims, if they so desired, to go to other than sharia courts to settle their domestic disputes. The first jurisdictional injustice resulted from the Mohammedan Law Courts Ordinance of 1902, Section 6a, which ‘confined the jurisdiction of the sharia courts in family matters to suits to which all parties were Muslims or where the marriage to which the question related was concluded in accordance with sharia law’ (Akolawin 1973, 174). Understandably, qadis would be distressed for being denied jurisdiction in cases in which one of the parties was Muslim, or the marriage was not concluded in the Islamic form. In its mandate to regulate the sexual reproduction of Muslims, sharia could not be reconciled to abandon these odd-out Muslims. The second injustice resulted from the Civil Justice Ordinance, 1900, Section 38, by which Muslim parties were permitted to take their personal status cases to civil court. Litigants could use this right freely if it suited them. Qadis were resentful of this invitation to Muslims to desert sharia courts. The Sharia Courts Act, 1967, addressed these concerns and made them the jurisdiction of the sharia court. The question of mixed marriages was resolved in the Act in ways that some scholars believe went overboard and hurt the qadis’ cause. To control Muslims’ mixed marriages, the Act extended the application of Islamic law to cases of family disputes in which one of the parties ‘believes in any of the Holy Books’ (Akolawin 1973, 177). According to Natale O. Akolawin, Jews

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and Christians, people of the book, would be subjected to sharia for marrying Muslims. Although critical of this religious intolerance for extending sharia to Christians and Jews, Akolawin takes cognizance of the real intention of the Act of bringing all mixed marriages between Muslims and the people of the Book, Christians and Jew, under the jurisdiction of their court (1973, 178). This intention, he argues, could have been achieved by a better legal draftsmanship to avoid subjecting Christians and Jews to sharia family laws. Latter amendments of the law in April 1969 (1973, 180), and May 1970 (1973, 181), and the repeal of the Act itself in 1972 (1973, 186) variously attempted to give sharia courts jurisdiction of mixed marriages involving Muslims short of applying sharia wholesale and indiscriminately to ‘the People of the Book.’34 Eventually, the Organization of the Laws Act, 1973, conceived in a less sympathetic climate to sharia courts, restored substantially the status quo prior to 1967 (1973, 194) in which sharia courts were denied jurisdiction over Muslim mixed marriages. The Sharia Courts Act, 1967, closed the loophole by which Muslims could have sought other than the sharia court to resolve their personal status conflicts. Although the incidences of the use of this right were too negligible to warrant changing the law, the fact that Muslims could use the law even minimally irked the qadis. The Sharia Act, 1967, made the right of Muslim to resolve his or her family disputes in other than sharia courts subject to the approval of the Sharia High Court (Salman 1977, 98). Also, other acts were passed to empower the sharia court. In guardianship of children whose fathers were not known, the qadis were aggrieved that the issue had been entrusted to the civil courts. The Child Care Act of 1968, addressed the qadis’ concern that children who might be Muslims could be taken outside sharia jurisdiction. It gave sharia courts guardianship of theses abandoned children just in case that their parents were Muslims (Akolawin 1973, 179). Constitutional amendments passed in 1967 revised the composition and procedures of the Court of Jurisdiction entrusted with resolving conflicts over the respective jurisdiction of the two systems of courts. These amendments ended the dominance of the civil judges in the 34

Sharia Courts Act, 1967, was amended in 1970. The original provision that subjected Christians and Jews to sharia law was dropped. Instead the sharia court was made competent to decide marriage and divorce cases in which one of the parties was ‘Moslem at the time the marriage was concluded’ (Salman 1977, 114).

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Court. The Court, according to the amendments, would consist of equal numbers of qadis and civil judges. The presidency of the Court was made rotational giving the Grand Qadi the opportunity to chair the Court and cast the decisive vote in case of a tie (Salman 1977, 95). Considering the fact that the Court of Jurisdiction had never met before this overhauling, the revision of the constitution of the Court struck legal scholars as symbolic rather than substantial. It was an exercise in undoing a history of humiliation irrespective of the weight, or hurt, of the specific details of this humiliation. The battle over the Court of Jurisdiction came to an end in 1974. The Civil Procedure Act, 1974, did away with the Court. Instead, it gave a constitutional circuit of the Supreme Court the power to decide on jurisdictional conflicts between any or more lower courts (Salman 1977, 144). The representational ratio of the composition of sharia to civil judges was not enacted. It was only stipulated that the new court would consist of five judges when exercising this function (1977, 145). In this ‘triumphant spirit’ the Sharia Courts Act, 1967, addressed the relationship between sharia and native courts (1977, 98). We have seen in Chapter 2 how the drive for Indirect Rule endowed the newly created native courts with sharia jurisdiction in order to ultimately close down sharia courts in rural Sudan. To vindicate the qadis, the Act limited the native courts’ family jurisdiction to petty cases. Records of the meetings of sharia authorities indicate that qadis wanted to strip native courts of their sharia jurisdiction altogether. A sharia jurisdiction, the qadis deliberated, would be denied to native courts even those with ʿalim members in areas where sharia courts had existed. In places where no qadi court existed, native courts would continue hearing sharia cases as long as they had an ʿalim enjoying autonomy from the tribal chief and having separate powers. Qadis never forget the maʾzūn (marriage registrar) feud, discussed in Chapter 2, in which the British administrators enhanced native courts by assigning them separate marriage registrars to the chagrin of the qadis whose courts monopolized marriage registration before. In their meeting, the qadis decided that these tribal maʾzūns should be disbanded. Their work and records in the interim period would be supervised and inspected by qadis.35 The 1967 Act, further, addressed the issue of supervising native courts. Supervising the work of these courts after independence fell to

35

Sudan Judiciary Archive, Personnel Committee, Civil Division, 4 August 1966.

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civil courts that inherited the judicial functions of the colonial British District Commissioner, including reviewing and deciding appeals on sharia cases. In Chapter 2, we have seen how the qadis were offended by assigning this power to an infidel. In this payback time, the Act gave qadis a dual supervision with civil judges over native courts. For example, appeals against decisions of native courts on personal status law should be taken to sharia authorities. Further, these authorities would be responsible for the appointment, supervision, and removal of ulema of the native courts (1977, 99). This dual supervision led to serious complications. To ease these difficulties, the Grand Qadi issued directives stripping native courts of all powers to adjudicate cases of personal law of Muslims. The Qadi warned that harsh measures would be applied against any breach of his orders (1977, 100). On the Bar side of the legal profession, sharia advocates, encouraged by this campaign against the hegemony of common-law-trained lawyers, formed their separate Bar: The Sudanese Sharia Bar Association. Sharia advocates were aggrieved by sections of the Advocates Ordinance, 1935, which gave common law lawyers ‘unrestricted license’ by which they could appear before sharia courts. The same was not extended to sharia-trained lawyers. Hence, they lobbied to deny common law lawyers appearance before sharia courts. However, the Advocates Ordinance continued unchanged. Being too few in number did not help the case of the sharia advocates. Importantly, there is a lot of money at stake in sharia cases, especially in inheritance, to prevent common law lawyers among the Islamists to sympathize with the embattled sharia advocates. Irrespective of the ideological garb, civil lawyers stuck together and foiled the plan of the sharia advocates to deny them their privilege of unrestricted license (1977, 104). Nonetheless, the Islamists left their imprint on the Bar by asking legal students to sit for, and pass, two papers in sharia before practicing law (1977, 107–108). The 1968 Draft of the Islamic Constitution: Religion was In The Islamization campaign reached its zenith in the drafting of the 1968 constitution providing that Islamic jurisprudence was to be the primary source of law in Sudan. Therewith all existing laws that contravened the provisions of Qur’an and Sunna were to be repealed, or amended, to the extent necessary to remove the contravention or inconsistency. This reform was projected to be gradual and subject to the decisions of the

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legislature. The draft constitution provided further that if a judge did not find the required valid law to apply, he or she should base his or her decision on the principles of Islamic jurisprudence and its general theories; as well as good custom which is consistent and in conformity with the principles of Islamic jurisprudence and the rules of justice and good conscience (Salman 1977, 102). This unrelenting Islamization reached the end of the rope in 1969. The parliamentary system, the powerhouse of the Islamizing drive, was overthrown by Colonel Nimerie’s coup in 1969 (1977, 103). The coup brought to power an alliance of leftists, secularists, Nasserites, professionals, and trade unionists that had been in disarray and retreat since dislodged of the position of power gained as a result of the October Revolution of 1964. Nimerie’s coup was the payback time for the Islamizing forces. The victorious leftists and Nasserites started a process of ‘pruning and circumscribing’ the influence of the Islamists in sharia courts and Islamic centers of learning. The Judiciary Authority Act of 1969, reinstated the Chief Justice, invariably a civil judge, as the administrative head of both the Civil and the Sharia Division. The ‘parallelism’ of the Judiciary fought and won by the Sharia Division in 1967, was terminated (1977, 112). The drama of the mutual vindictiveness of both the Islamists and the secularists is characterized by their battle to control the Court of Jurisdiction. Although this court had never once convened to decide on conflicts in jurisdiction between civil and sharia courts, it had been one of the major spoils the warring parties in the Judiciary were determined to win. We have seen how qadis restructured it in 1967 in order to equalize their representation to that of the civil judges. The victorious secularists in 1969 revisited the Court and restored it to its pre-1967 constitution in which civil judges had had the upper hand. The Judiciary Authority Act, 1969, restructured the Court to install the Chief Justice as president and give civil judges the dominance they had lost to the qadis (1977, 112). Salman who noted that these changes took place despite the fact that this Court had never been convened points out the irony of the dramatic battle. However, its constitution, he continued to say, manifested the power position of the feuding parties, and provided a psychological satisfaction for the division in whose favor the court was restructured (1977, 112–113). Other acts passed by the secularists revoked the various powers the sharia court had gained during the Islamic drive. The Child Care Act, 1970, repealed the 1968 Act, which gave sharia court jurisdiction over

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‘other children’ presumably including both non-Muslims and those of unknown parents. The new Act entrusted civil courts with these ‘other children’ to the chagrin of the qadis (1977, 115). The victorious secularists turned to deal with the duality of legal education, which had been ‘the key factor, the raison d’etre of dualism of the judicial and legal profession’ (1977, 115). The rise of the Law and Sharia school of Omdurman Islamic University drove these secularist to dry up these ‘tributaries that feed this dualism’ (1977, 115). Their move to kill duality at the source was twofold. First, in 1970 the government directed the Sharia Division of the Law School of the University of Khartoum to cease admitting students. Second, the Islamic University was relegated to a status of a college of Arabic and Islamic sciences and thus denied accreditation to graduate legal students (1977, 115). Finally, they removed the two Islamic subjects from the papers required for the Bar exam (1977, 115–116). The vengeance of the secularists was as methodical as that of the Islamists. Conclusion This chapter examined the various ways the colonial Manichaean geography of the Judiciary played out in the politics of the postcolony. It described how a rage against sexual perversion, which could have been addressed by ‘modern’ laws upholding civil decency, translated into a national program of Islamizing the state. The rage took in its stride a motley of issues like the colonial legacy; national resistance; political legitimacy; communism; revolution; Islam; social change; tradition and modernity; morality; politics; religion. In the debate of this Islamization program and the practice to realize it, various categories worked at the edge of the Judiciary to gain advantage. In the process, the presidential politics allied itself with the Sharia Division and its law in an attempt to surmount the crisis of political legitimacy based on a history of nationalism and resistance. Bids by presidential politics to hang on to this form of legitimacy by playing the impending conspiracies of the communist party, the new enemy of the nation, were turned down by the dominant forces calling for social change as the new basis of political validity. The Civil Judiciary, which represented this altered legitimacy, brought the wrath of al-Azhari on itself for blocking his every move to authoritarianism. To answer the unruly Civil Division, the President reverted to altered national resistance legitimacy by putting the decolonization of

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the law on top of the national agenda. He not only lifted, and rightly so, the overdue injustices of the Sharia Division, but also projected the implementation of sharia as the law of the land in order to close the gap between the moral and legal sanctions of Sudanese Muslims. The ‘disgruntled’ qadis could not have been happier with this sponsorship in high places. The reality of the fault line in the Judiciary, and the colonial and postcolonial political investment in it, precluded the nation from reconciling its fragments. In the process, the nation missed the opportunity to gain skill, insight, and statesmanship negotiating a coming together of elite institutions let alone the ‘tribes’ of tradition with their allegedly internecine feuds. Rather, a politics of divisional vendetta of ‘winner takes all’ reigned supreme in the Judiciary. Measures implemented by a winning side one day were reversed the next day by a new set of winners. Salman concludes from his interviews that some secularists viewed the ‘reversals’ they had effected after Nimerie’s coup in 1969 not as a means to reach a unified judiciary but to eliminate ‘the sources of influence of political opponents.’ Others saw them as dispelling ‘unnecessary and absurd extension of the jurisdiction of sharia court’ (1977, 116). In being locked in this fight, the judges and qadis lost touch with the realities around them. Establishing two equal and independent divisions of the Judiciary was not the trend at the time in which ex-colonies planned to centralize all litigation in one system of national courts. In Islamic revival terms, our examination of the discourse on prostitution revealed the virulent religious potential of the politics of morality. In this respect, the chapter presented a clear-cut case supportive of Simmel’s argument that religiousness, an attitude of the soul, can be projected in legal and state in forms he identified as ‘religion’ (1997, 104–105). The Islamization of the state discussed in this chapter did not occur because Islam had been there waiting in earnest to colonize the state. Rather, it is religiousness, as represented by the campaigns to remove red-district areas from family neighborhoods, which created religion as state ideology. One would wonder if the birth of the Anti-Prostitution Act in 1968 as a religious law was necessary. Why should it take religion, the Islamization of the state, to bring home the civility message of the Act? Civil laws all over the world addressed this moral issue in a variety of acts without promising anything.

CHAPTER FOUR

NIMERIE’S INSTANT JUSTICE: TONGUE OF GOD AND THE ROGUE This chapter seeks to rehabilitate Nimerie’s Islamic experiment of implementing sharia and establishing al-ʿAdāla al-Nājiza (instantaneous justice) (1983–1985) in the course of the dramatic legal and judicial conflicts we have followed so far, within the broad social history of the country. The professional and political detractors of the experiment turned the Islamic courts of the period into a legal pariah for their alleged subservience to President Nimerie, their outrageous excesses such as executing the elderly Islamic reformer, Mahmoud M. Taha, and subjecting non-Muslims to Islamic law penalties of lashing, and amputations of arms and legs. While acknowledging the truth of some of these criticisms, the chapter will examine President Nimerie’s Islamization of the state in the light of the discourse on crime and punishment that raged in the Judiciary and society at large in the 1970s and early 1980s. This chapter seeks to situate this discourse in the wider Manichaean culture that went into the constitution of the Judiciary. The right of citizens to fair and timely due process of the law began to figure prominently in the conflict between the judiciary and the executive during the last years of Nimerie’s era. This conflict can be characterized as the contention between doing right and doing it right away. Two arching metaphors on justice and speed would dominate the theater of justice in this period. In an undisguised critique of the delay in deciding cases, Nimerie had been promoting his concept of ‘instantaneous justice’ and hammering in his maxim: Justice delayed is justice denied. Brought up in the tradition of hasty justice is buried justice, the Judiciary, on the other hand, while not especially proud of its disconcerting backlog of cases, would be extremely suspicious of instantaneous justice. I will examine the two positions as they developed in the showdown between President Nimerie and the judges in the years 1980–1983. I will investigate this showdown against the backdrop of an economy of bāṭil (opposite of ḥ aq (right)) by which a Muslim describes a world that has gone astray. To bring out the bāṭil of the times, the chapter will describe

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the heartless legal, social, and economic realties and uncertainties of the period. I will discuss the satanic working of this economy to bring out the underlying Muslim popular passion, or rage rather, for justice to whom Nimerie responded powerfully and persuasively in laying out and executing his concept of instantaneous justice. ‘Handling very well’ the rage for justice is carefully chosen here in preference to other prevalent understandings of Nimerie’s Islamism. The over-representation of legal professionals among Nimerie’s critics led to an overemphasis on this Islamism as a tool of power and political survival. So much so that secularists missed out on the ‘populist’ conception of justice underlining this Islamism. In restoring this dimension to Nimerie’s Islamic experiment, I take the lead from useful insights on Nimerie’s populism and his knack of usurping the worries and judgment of the common people. These insights have been suggested by el-Affendi (1991), Khalid (1986), and Zein (1989). Although Nimerie’s courts horrified many in the intelligentsia and the legal profession, el-Affendi argues that the masses loved it, especially when it entailed the humiliation of top officials (1991, 123–124). 1 Zein poignantly recommends the study of this popular notion of justice in the Sudanese context that was showing ‘discontent with the learned procedures of the common law system’ (1989, 297). Khalid, who collaborated long enough with Nimerie to be one of the best judges of the man’s character, has on many occasions pointed to Nimerie’s popularity as a key to understanding his politics. He states, ‘He had a sense of the people and an ability to relate to them; a simple man of the people

1 Nimerie’s populism had its limits though. When the qadis of his prompt justice, dismissed as lackeys of the dictator by secularists, began hearing cases against the drunkenness and corruption of key figures in his regime, he turned against them and put them in prison The conflict between the qadis and the Attorney-General, al-Rashid al-Tahir Bakr, who wanted to shield the President’s men from the wrath of the qadis, is a black hole in the secular historical annals. The cases against the brother of Omer al-Tayyib, the vice-President, Mamun Awad Abu Zaid, the former member of Nimerie’s original Revolutionary Command Council of May 1969, the sons of Ahmad ʿAbd alHalim and Khalid Hasan Abbas, the veteran stars of the regime, and a number of May fat cats such as Ishayqir and Mudawi, and the war against the ‘sex slaves,’ in the qadis’ terminology, of the rich and famous in the orchards of suburban Khartoum, should be studied with reference to the burning desire for justice among common people rather than a cover up of the qadis’ subservience to Nimerie (al-Kabbashi 1986, 38–56).

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‘(1985, 12).2 In the light of this insight about the man, instantaneous justice can be viewed as carefully thought out by Nimerie confident that it would be supported by many a Sudanese who suffered from the slowness of the due process of law, the feet-dragging judges, and the ruse of lawyers delaying decisions by every trick in their book (Khalid 1986, 41). Khalid, however, did not elaborate this notion. His criticism of Nimerie’s Islamic experiment in his numerous publications on it (1985; 1986; 1993) stresses more strongly the political instrumentality of the experiment. This chapter will continue the examination we began in the previous one of how the discourse on law and the Judiciary came to bear on the identity of the country. The complaints about the administration of justice in northern Sudan ripened into a reform to determine the nature of the state and the identity of the nation-to-be (Kok 1991, 235). In other words, Nimerie’s conversion to Islamic justice reopened the legitimacy of the nation-state in Sudan with which al-Azhari had intuitively grappled in the late 1960s. We will examine how Nimerie’s instantaneous justice, conceived originally as a legal reform resolvable by substantially or technically enhancing statutes, was transformed into a legal reform that is more akin to the identity and sources of the law (1991, 235). In putting into question the laws and procedures of the Judiciary, whose ineptitude was arguably attributed to its colonial laws and work habits, instantaneous justice under sharia became the basis for Nimerie’s political legitimacy. In breaking up with the colonial Judiciary, Nimerie’s instantaneous justice, which drew on both a popular disillusionment of the due process and a popular notion of justice based on Islam (Zein 1989, 203), was presented as a decolonization of the Judiciary. It was calculated to embarrass the intractable judges who, had

2

Nimerie’s men had been continuously advertising this aspect of him to the public. Being born to a night watchman was emphasized (al-Sahafa 17 November 1984). His close relation with his intermediate school janitor was also played up. On a visit to his hometown, Nimerie, it was reported, asked to see the man. He sat chatting with him for an hour. At the end of their session, Nimerie decided to personally pay for the man’s expenses to pilgrimage to Mecca. On the death of the janitor, Nimerie sent the Deputy Governor of the province to offer condolences on behalf of the President (alSahafa 5 November 1984). Finally, Omar al-Haj Musa, an officer, Nimerie’s confidant, and a Minster of Information and Culture, described him in a 1977 speech as follows, ‘People loved you because you are a poor man, a son of a poor man and a mother of the average people. You have not changed a bit. You own no mansion, estates, goodies, or cattle and herds’ (Ministry of Information and Culture 1977, 7).

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they resisted Nimerie’s instantaneous justice, would look in the public eye as standing by the ‘colonial heritage’ (1989, 203). The Theatrical Moment In 1983, the confrontation between President Nimerie and the Judiciary came to a head. Since 1975 judges had been variously complaining about the downgrading of their salaries, the lack of funds to run the Judiciary, and the increasing politicization of their institution. To impress upon the government and the public the crisis in the Judiciary, they embarked on union action comprising submission of memorandums, processions, resignations, and strikes. In August 1983, in the course of a judges’ strike that had already been two months old, Nimerie held a press conference in which he bashed the judges and their colonial laws. The paramount downside of the judiciary, argued Nimerie, was that judges, whose laws were ṭāghūtiyya (tyrannical, colonial), delayed deciding cases. He continued by saying: After an almost two-month strike by judges, people did not miss justice although it is as necessary as water and air. This indifference to the absence of judges resulted neither because justice became meaningless nor because the state was incapable of furnishing it. The fact of the matter is that people did not miss justice because the kind administered in the past was an apparition of justice. The absence of the judiciary, the bloodline of any political realm, should have dealt a fatal blow to our nation. That did not happen because our judiciary, alien as it is to our polity, is not a vital member in our life. This is why it remained out of the reach of people. (Khalid 1986, 274–275)

A month later Nimerie declared sharia to be the law of the land. Upset by the judges’ trade unionism, Nimerie, a master in wrong-footing adversaries, threw it all on the lap of his unruly, fastidious critics.3 A veteran associate of Nimerie provides the following insight in this

3 A diplomat in Khartoum told Newsweek that Nimerie had survived in a kind of stable instability. ‘He governs by confusion,’ he said (4 February 1985). Nimerie’s dismantling of the Railway Public Corporation is another example of his wrong-footing tactics. Following swiftly on the heels of a strike of the powerful railway trade union, Nimerie called for the decentralization of the Corporation to break the spell Atbara, the Railway headquarters, had had on the fate of political regimes since the colonial times. In taking care of the political threat of the strike, Nimerie left the execution of his novel idea to the surprised, unprepared, and disoriented management of the railway system (Sudanow, February 1982).

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Nimeriean technique as applied to the judges, ‘If what the judges contest is the rule of law, Nimerie will replace the law with a new one—new in its origins, methodology, and execution that would require changes and retiring of personnel’ (1986, 279). Rage for Justice/Moral Panic Arguably, Nimerie’s diatribe against the Judiciary appealed to a rage for justice brewing in urban centers, inhabited largely by northern Sudanese Muslims who increasingly felt that the administration of justice was neither fair nor timely. In line with similar passions for justice in Western and non-Western countries, this Sudanese rage for justice emphasized prompt, if not street, justice.4 It was agitated by a ‘punitive impulse’ (Morqusee 1997)5 of retribution, bordering on a ‘tooth for a tooth’6 punishment and a concern with victims’ rights.

4 The rising tide of street justice made Rev. Jephthah Kiara Galhake of Kenya to say, ‘There is too much of a tooth-for-a-tooth-and-an-eye for-an-eye attitude in our society today’ (The New York Times 5 October 1995). The New York Times also reported on 27 November, 1995 about the same lack of confidence in the justice system in South Africa. Vigilante groups took it upon themselves to combat crime reverting to summary judgment and immediate punishment. 5 Mike Morqusee attributes the dominance of this punitive impulse in Britain to a ‘moral panic’ that gripped the country after the conviction of a 15-year old for the fatal stabbing of a head teacher. The call of the teacher’s widow for ethical renewal, according to Morqusee, precipitated an ‘orgy of piety.’ In locating the sources of the rising crime in the abandonment of family values and the shrinking role of religion in public morality, this orgy of piety excuses the state and community of the burden of responsibility (The Nation, 21 April 1997). In the same vein, Bruce Shapiro criticizes the proposed Crime Victims Bill of Right in the USA for being the work of a ‘vengeance-right lobby’ for seeking unnecessarily to amend the American Constitution when its complaints can be met otherwise. The Bill intends to give crime victims the right for financial restitution from offenders, a trial free of unreasonable delay, attendance of the accused trial and parole hearings, and information on the transfer or release of prisoners (The Nation, 10 February 1997). The Murder Victims Family for Reconciliation, a 3,000-member strong lobby, however, sees capital punishment as a ‘disease and nothing more than vengeance’ (The New York Times 1 February 1996). 6 To reduce the sexual drive of sexual offenders about to be released from prison, the state of California approved the use of ‘chemical castration’ on them (The New York Times 27 August, 1996). The cost of the injection of a day ($21), it is argued in Montana, is by far less expensive than what the state pays for the upkeep of a prisoner ($44 a day). One sex offender even pleaded for the treatment to curb his sexual drive. However, critics describe this law as simplistic and a feel-good piece of legislation that does not get to the root of sex offenses. Liberals see these crimes as being about power and control rather than sex (The New York Times 27 April 1997).

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This dramatic reconsideration of crime and punishment was brought to center stage by a political economy of a bankrupt state, emigration to the oil-rich Arab Peninsula, and over-urbanization in the late 1970s and early 1980s due to drought influx of refugees from neighboring countries, and later by the displaced of the war in the southern part of the country. People were shocked by the satanic minds behind the kind of crimes previously unknown which resulted from what Alexander Pope expressed as a typical case of ‘wealth accumulating and men graying’. Also, rapid urbanization brought to cities, traditionally inhabited by northern Sudanese, uprooted people of darker hue and dubious beliefs perceived to be predisposed to criminality. Vigilantism and retribution, at the root of the Muslim philosophy of punishment, took the better of a rehabilitation philosophy the state could not afford in terms of budgeting for security, prisons, or courts. Economy of Bāt ̣il A period of straying from righteousness, identified by Islam as bāṭil, set in as a result of those difficult afflictions. During the hearing of a case of embezzlement of public funds before a security tribunal, the prosecutor quoted a verse from the Qur’an (2:188), ‘And do not eat your property among yourselves for bāṭil (vanities) nor use it as a bait for judges with intent that you may eat up wrongly and knowingly’ (Sudanow, October 1979). This bāṭil economy, that spawned a range of appalling crimes of greed and deception, preyed on the opportunities surrounding emigration and the management of the émigrés’ remittances—conversion in local currency and delivery to kin. The looting of the state that went hand in hand with this émigré economy accentuated these horrifying crimes. Muslims had to plumb their soul and texts to wrestle with this rampant criminality. Mughtaribīn Economy The late 1970s saw the drying up of foreign capital and aid, and the de facto devaluation of the Sudanese pound. The skills and personnel built up to execute the elusive developed and socialist state were negated by political abuse and cheapened by dwindling rewards. Voting with their feet, professionals and skilled labor found employment in the oil-rich Arab Peninsula. These handful of Sudanese, estimated as 650,000 in number in 1990 (National Population Council 1994, 29), who came to be known as the mughtaribīn (emigrants), henceforth became the major

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influence on the economy and consumption styles in Sudan ever since. Their remittances, estimated as $3 billion in 1984–1985, equal to fully three-quarters of the Sudan gross domestic product, made the country awash with hard currency (De Waal and Omer 1997, 13–14). Emigrants found it more gainful to transfer their remittances away from government regulated currency exchange. Consequently, this immense foreign exchange was high jacked by the wheelers and dealers of the hidden economy who supplied the required local currency to the mughtaribīn in return.7 Unlikely to trust the rundown local economy, the networks of underground economy recycled their foreign exchange abroad. So much so that $21 billion had left the country in 1978–1979, a boom year (Sidahmed 1996, 195–197). Those officeholders who remained behind turned themselves into ‘licensed profiteers’ (Davidson 1992, 228). Average people indulged in corruption and predatoriness on par with the powerful (Bayart 1993, 238). ‘He is a messenger,’ a popular phrase at the time runs ‘but he is mustafīd (doing fine).’ The sharp-tongued wordsmiths of the Rubatab community of the middle Nile region, among whom I did fieldwork in 1984, captured these prospering state predators in one of their saḥ ir metaphors (Ibrahim 1994). They described a state employee taking bribes or embezzling money as having a midra (pole, that is, bribes) in addition to the muqdāf (oars, that is, salary) for in sailing Rubatab re-enforce rowing with punting. The Metaphors of their Discontent The coarsening bāṭil economy was captured by popular idioms that were the brainchild of this time of affliction. Fatil (spinning, plaiting, braiding) describes the exchange of hard currency, namely dollars, Saudi Riyals, and travelers checks for Sudanese pounds and vice versa. The term implies a notion of fetishism. It suggests that wealth can be made by the mere weaving of one form of currency with another in the hierarchical order dictated by the market. We will see when we discuss wedding rituals, the showcase of this bāṭil economy, how this fetishistic ‘braiding’ was played up. Another idiom invented is ʿashwāī (random, unplanned) implying the ruralization of the city. It denotes the force of both extreme wealth and abject poverty to operate unhindered by the 7 For the power of the men of the blackmarket and how an intransigent government had been trying to come to terms with them, see Sudanow, August 1981.

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plans or the law of a bankrupt state. Distrustful of the state, and perhaps despising it, rural immigrants began building shantytowns seeking the authorization of no administration. People of wealth also built wherever it suited them. People refer to the last form of development as ʿashwāī fākhir (randomness at higher places). Thus the city was taken out of the comfort and amenities of its colonial modernity of electricity, running water, health, and police. A nascent class-consciousness brought forth the term murtāḥ (enjoying an easy, comforted life) designating a rising bourgeoisie that became increasingly insulated in their private cars, power supply, purchasing black market items, etc. from the hardships and hassle resulting from a withering welfare state. The lingering hope that over-urbanization is reversible promoted security authorities to conduct kashas (rounding ups) under the vagrancy laws to empty the city of its surplus population, identified largely as non-Muslim, nonArabic-speaking, and black Sudanese.8 Urbanization Khartoum, the capital of Sudan, of the early 1960s was indisputably one of the African colonial townlets that turned into an urban sprawl; a ‘giant spider’ (Davidson 1992, 254–257). Since the 1970s, however, it has been spawning plagues of economic and moral poverty incompatible with the dreams people had attached to gaining independence. It was over-urbanized overnight. Mismanagement of the country came back to haunt it. The rural dislocated, displaced and, the aspirant who wanted to be where the little modernity was, trekked to it effectively bringing ‘their case to the government’s own doorstep’ (Gore 1991, 68). The Khartoum urban complex, comprising Khartoum, Khartoum North, and Omdurman, whose population was 505,000 in 1965, jumped to 1,150,000 in 1973, and to 1,892,200 in 1983 (1991, 69). Khartoum’s share of emigration increased from 58,000 in 1956 to more than half a million in 1983 (National Population Council 1994, 28). Khartoumers, urbanized Muslims and Muslim Arabs, began to feel overcrowded. Walking through a thick crowd, a context and a contest new to the city, my mother, a grumpy northern Sudanese, asked rhetorically in 1973, ‘Where do all these people come from?’ The facts that the

8 In 1983, there were 6,000 vagrant juveniles in Khartoum who began their delinquency by the theft of food and graduated to a larger scale crime and drug abuse (Sudanow, August 1983).

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migrants were darker in hue, ‘pagan’ or of shaky belief in Allah, and spoke an array of ‘mumbo-jumbo’ languages, oppressed Muslim, Arab Khartoumers and made them feel outnumbered. So much so that later in 1986 the National Islamic Front, allegedly dominated by northern Sudanese, contracted T. Abdou Maliqim Simone, an African American with scholarly interests in South Africa, to advise it on the ‘Africanization’ of the city (Simone 1994).9 Even lighter hued migrants such as the Arab nomads and villagers were shunned for cheapening life by their scandalous desire for a quick buck. The ‘What can you say? These are the Arabs (nomads) of the Gezira’ (the land between the White Nile and Blue Nile)’ became the standard phrase for repudiating the impulse of making a quick buck.10 Urban Sudan, and especially the capital city, was suffering, in Ali Mazrui’s words, from ‘little modernity’ as well as too much modernity.11 Abdel Salam Sidahmed has cleverly noted that the mughtaribīn economy tested modernity and subverted it. The ruralization of the city was afoot. But a ruralized city is a paradox or misnomer (Sidahmed 1996, 198). The supply of electricity may illustrate this urban bind. Power cuts became endemic in the period under review. Rationing the supply did not work. Emigrants were cramming their houses and the market with electric appliances whose needs for power outstripped the supply monopolized by the state. Thus, generators became a permanent feature in business quarters and homes of the wealthy. In addition to being a noisy, coarse way to draw the boundary between the rich and the poor in the same neighborhood, generators’ consumption of oil strained the resources of a commodity already in short supply. Gender No sooner had women, largely the educated few, began enjoying the fruits of state feminism facilitated by the October Revolution of 1964, than their newly-won rights were undercut by the bāṭil economy. This state feminism was supportive of women as workers and mothers (Hale 1997, 105). It extended suffrage to them in 1965 (1997, 137), equal pay in 1968, and the right to pension and paid maternity leave in 1975 (1997,

9

For a review of the book that focuses on this aspect, see Ibrahim (1996). For the interesting overlap of ‘Arab’ and ‘nomad,’ see Ibrahim (1988). 11 In a play on Alexander Pope in Ali Mazrui’s ‘A Garden of Eden in Decay’ of his video series, ‘The Africans: A Triple Heritage,’ 1986. 10

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138). The bāṭil economy, however, resulted in the ‘remasculinization of society’ (1997, 91) that brought women’s work under scrutiny. Regardless of the modern feminist position, people could see why home is traditionally said to be the woman’s place. Among émigrés in Arabia men had a better chance of getting hired than women in the male-biased economies of these countries. Bread-winning wives of emigrants, who had held state jobs, left the country accompanying their husbands. In their new locations, the majority of these women reverted to their old status of homemaking. This devolution became a source of criticism of the worth of women as long-term contenders in the job market. Complaints were not restricted to women leaving jobs to which they had been generously prepared by the state, but also to the arrangements state feminism had made for these women to have their jobs back whenever they returned. The arrangement started by women securing a murāfaqat zawj (accompanying husband) leave without pay as a last favor from the state. Under this arrangement, a woman, or a man for that matter, would have a job reserved since employers were not allowed to appoint a permanent replacement. Such hand-tying frustrated employers in the public sector. The argument for women’s work began to lose weight. The temporary workers appointed in place of these women on leave were aggrieved by this misguided state feminism. The negative scrutiny of women’s work came from another quarter. With the decrease of the income of the salaried class, and especially those women who held junior jobs, well-to-do families reconsidered whether the diminished salary was worth the trouble of their wives and daughters. With the shortages in provisions, the lining up for almost every item from bread to gas, domestic chores needed full attention. Hale describes the housekeepers of these times of shortages as ‘urban foragers’ for managing domestic crises in an urban disarray of black market (1997, 206). Having very little going for them, women were preyed upon by those expressing conservative piety as being the root-cause of the vices of the time of affliction. Crass materialism was blamed on women for turning marriage ceremonies into what many perceived as expensive monsters. No question, the bāṭil economy fetishism showed most in marriages since they are the showcase of the competence of a culture to swap favors across disparate fields. A mughtarib (emigrant) groom became the dream of girls and mothers. For shipping from abroad in abundance all the commodities for, and paraphernalia of, marriage festivities, this

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husband-to-be is called ʿarīs jāhiz (ready groom) (Sudanow, February 1979). Money fetishism ran rampant in these marriage ceremonies. In the ceremony devoted to the public exhibition of these imported, extravagant, and plentiful commodities, the marriage price, ideally paid in dollars, would be braided in various shapes and displayed. Invitations to attend marriage ceremonies also depicted this fetishism. An invitation would be designed in the form of a check. Another showed the groom wearing ʿuqāl, a headband characteristically worn by Saudis and Gulf Arabs (Bushra 1998). The power of money made the northern Sudanese see the vulnerability of their cherished endogamous society. A culture so discriminating in ethnic and racial qualifications for marriage was cheapened by seeing wealth ensnaring families into contracting marriages with an eye to money, not to culture. Taking advantage of this newly found wealth, young men, and even girls, through the wealth of their mughtarib fathers, married into northern Sudanese families not accessible to them before. The salaried class of men among the northern Sudanese was increasingly putting off marriage due to their diminishing incomes (Sudanow, February 1979). The women’s cause was hurt by the bāṭil economy in a variety of ways. Their access to this economy through shanṭa (suitcase) trade between Egypt, Saudi Arabia, and Sudan raised suspicion and protest against its alleged harmful consequences, and was ultimately controlled. Women’s merchandise was seen as useless, merely tafākhury (ostentatious) goods such as clothes and perfumes (al-Sahafa 11 November 1984). Business trips by women to Egypt especially were denounced in ‘Letters to the Editor’ for suspicion that prostitution was involved. This led to the curtailment of women’s freedom of movement. A law was enacted preventing them from traveling abroad without a muḥ ram (guardian, a relative of a woman who is ineligible to marry her according Islamic law). To bail out a culture in disarray, women were victimized. Disasters were attributed to women flouting Islamic injunctions preventing them from mixing with men. Feminists protested the removal of women from the public sphere (al-Sahafa 10 November 1984). In rebuttal, religious traditions were spewed to demonstrate the harm to the public if mixing of sexes is allowed. Eyes, according to a tradition, are adulterous and their adultery is seeing. Hands are also adulterers and they sin by touching. Finally, male tailors and hairdressers were decried as blemishers of manhood, and were reminded of the manly feats of the nationalist

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men of the 1924 Revolution against the colonial regime (al-Sahafa 11 November 1984). Race Public transport, the buses and routes of which the government failed to replenish to meet the demands of a sprawling city, dramatized the crisis of instant urbanization of Khartoum. Popular insights into the sociology of the crowd came forth. A northern Sudanese taxi driver once suggested to me that transport was not in short supply. ‘The truth of the matter,’ he said, ‘is that the city has been inhabited lately by people with unpredictable movements.’ The newcomers, who were largely young, single men, according to the taxi driver, were restlessly upsetting the urban clock of the city with its measured cycle of going to work, back from work, taking a siesta, and spending the evening in bustling downtown. The acute shortage of public transportation in the city hit the culture of visitation badly, therefore, accentuating the hollowness of urban life. ‘Damn transport,’ became a presentable, if not popularly accepted excuse, for not attending rites of passage, including visiting patients or not visiting friends, once held sacred and obligatory. An adage of the fading culture recommended strict observation of these visits because if you spared the feet the trouble today, the face will take the heat tomorrow. ‘Showing one’s face,’ as a token appearance, is recommended to save one’s face. Complaining of hearts hardening enough to cut kinship ties became rife. The disarray of the public transportation system in the capital city, and the suffering of people caught in its cracks, is movingly captured in a story published in the monthly magazine Sudanow, entitled: ‘Capital Punishment.’ Men, women, and children wait patiently in the hot sun for buses to arrive. When it does, people rush from shop doorways and side streets to do battle for one of the precious places. Battles done, the unsuccessful returned to their places to wait for an hour, at peak periods, for another chance to fight their way onto a bus. (Sudanow, September 1983). I was there long enough to remember those aborted forays at the bus with a shudder. The empty gaze of those who were unsuccessful was difficult to look in the eye. Public transport coarsened urban life by suspending the decorum the city had cultivated toward seating women and the elderly. The scramble

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for a place in a bus was ferocious, beastly, ‘manly,’ and unrelenting. I saw young men muscle their way into buses jumping through windows even before they stopped at stations. A successful entrant might take a number of seats for friends or family.12 No sooner than women entered the public sphere after the 1964 revolution than their vulnerability was reasserted in the push and shove of public transport. People would lose nights of sleeps because of the shame this ‘urban dust and decay’ (Davidson 1992, 254) had brought to their lives. Class Distinctions The unsettling class differentiations hurt the sensibility of the dwellers of the old city already oppressed by the sudden ethnic and racial infusion. Khartoumers used to bask in their egalitarianism despite noticeable historical inequalities. Perceived rather than real, this egalitarianism was brought to being by the leveling effect of Sufi brotherhoods; this bond to a spiritual community mediated what barriers wealth created. Further, the colonial ‘native’ status to which people were relegated generated a bond of nationalism and togetherness. To pass time in trains, travelers used to engage in tracing genealogies arriving ultimately to their connectedness in the happy family of Arabs and Muslims. Khartoumers displayed this contentment with their social coherence in the face of the class argument presented by a vibrant, and reasonably accommodated, communist party that arose among them in 1946.13 Khartoumers would typically dismiss what they saw as a misplaced Marxist emphasis on social differentiation by saying, ‘At the end of the day we all eat kisra (bread) and boiled dried okra.’ Ironically, this pious belief in egalitarianism might have endeared the party, famous for being the strongest in Africa, to people in urban northern Sudan. The quest of the party for equality (minus class struggle and, of course, atheism) seemed to be cut of the same fabric of the egalitarianism held dear in northern Sudan. Instead of trusting the party as an investment in their

12 Al-Bashir’s government decision in 1991 to have separate compartments for men and women in public transport was unjustly construed as gender segregation. In a column in a Sudanese daily I discussed the class and other social implications of the decision (al-Khartoum 8 May 1993). 13 For the history of the Sudan Communist Party, see al-Amin (1982).

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future, as the party would have liked to be seen, urban northern Sudanese trusted it for being something of their past and present rather. The mughtaribīn economy is a wild card. It brought wealth distinction to neighborhoods that used to bask in the bliss of this northern Sudanese egalitarianism. Although rich emigrants developed their new separate neighborhoods planned and reserved for them by a government starving for their foreign exchange, their remittances were also invested in developing their family homes in the old neighborhoods. With this extra money they could afford to demolish their family houses and renovate them. Unlike the mud and daub houses of the neighborhood, these renovated homes would be built in concrete with water toilets instead of pits. In many cases, they would be multi-storied and stuffed with imported furniture. At the end of the day, they would stand high and elegant shaming the ungainly mud structures of the old neighborhoods. Some of the novueau riche would even buy out their less fortunate neighbors and annex their plot to expand the family compound. Generators would be installed to secure power supply in anticipation of the frequent power cuts. The roof tanks installed would suck all the water supply of neighborhoods not originally designed for multi-storied buildings. Out of a sense of guilt, these water stealers would install taps outside their houses for neighbors, robbed of their rightful water supply, to fill their buckets. The infusion of too much wealth almost overnight heralded a time of affliction to come.14 A city so content with its social routines and tolerable wealth differences was suddenly going back to the drawing board to reinvent itself. Dwellers plumbed their Muslim soul hanging on to old texts and an old vision. Islamic texts spoke volumes to

14 For a leftist take on the bāṭil economy see Kursany and Kameir (1985). In revulsion of the rampant corruption, they describe the practice as the ‘fifth factor of production’ for being a critical means of distributing national income. Contrary to orthodox criminology that conceives of corruption as random individual acts, they regard it as a social disease structurally related to the mode of behavior of an emerging ṭufīlī (parasitic) class. The interest of the article lies in its critique of the state of justice in the shadow of this predatory class. It pinned no hope on the then existing judiciary for adhering to orthodox criminology. Its pessimism is based on the Judiciary’s failure to decide on cases of corruption. Out of 800 cases of embezzlement of public funds between 1975 and 1982, only 51 cases, says the article, were successfully concluded (1985, 153). Unlike legal professionals in the Judiciary and the Bar, who attributed the inefficiency of the legal system to Nimerie’s regime, Kursany and Kameir point to the insufficiency of the criminal theory of the Judiciary in the face of an endemic structure of corruption from which not even the Judiciary was immune (1985, 153).

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this unsettling change.15 Building high rises, according to Islam, is an ominous sign for Muslims. A tradition attributed to the Prophet says building such houses by uncouth Bedouins is a sign of the impending end of the world. Neighbors were numbed by this invasion of their privacy. In a letter to the editor, a citizen protested against authorizing owners to build multi-storied houses in neighborhoods not originally designed for such an extravagance. Invoking modernity, he argued that in countries that respect their laws neighborhoods are laid out with prescriptions covering the height of buildings down to the color of their exterior. To invoke his religious revulsion though, the reader used taṭāwul (elongated), the buzz word in the prophetic tradition, four times in his short letter which was illustrated by the editors with a picture in which a multi-storied house disdainfully eyes the mud ones underneath (al-Sahafa 25 September 1984). Crimes and the Emptying of the State The craze for money fueled by the bāṭil economy made life, in Mark Twain’s words, ‘hard, sordid, ungentle, dishonest, oppressive’ (1961, 15). The reverence of money trivialized minds by pettiness. Crimes for unlawful gain went out of control. The bodies unceremoniously disposed of in these crimes horrified people. People related in total disbelief the burning to death of a shopkeeper and his relatives by their landlord, a renowned, high-ranking military physician. The landlord wanted to terminate an old contract he had had with the shopkeeper because his property, right across from Khartoum Hospital on the ‘Doctors’ Lane,’ had astronomically increased in value. Manipulating a tenant-friendly law, the shopkeeper prevailed over the owner in courts.16 In desperation, the owner sprayed the property with gas when the shopkeeper and his relatives were fast asleep. The property was burned down and none of those inside survived. The city was numbed.

15 For the dominance of the religious metaphor in politics, see Sudanow’s story on the increased tempo of street-corner preaching by different religious brotherhoods and organizations (Sudanow, November 1980). 16 In limiting rent to a proportion of building costs, the Rent Restriction Ordinance, 1953, it was argued, favored the tenant and inhibited private investment in construction. At a time of inflation such as the one about which we speak, landlords could get 75 percent more renting an old property. Landlords’ interests were, therefore, paramount in the government move to revise the law in 1977 (Sudanow, January 1977).

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The crimes spawned by the bāṭil economy turned the state into a lie by emptying it, in Davidson’s words, of all existential content (1992, 255). In a survey of cases before Nimerie’s instantaneous justice courts between 1983 and 1985, offenses involving dishonest enrichment shot sky high, comprising breach of trust by public as well as by domestic employees, dishonestly receiving stolen property, assisting in concealing it, and cheating by impersonation. Also, there was an increase in crimes involving selling rotten food in cans past their expiry date. Rationed commodities such as flour, gas, and sugar became the beast of prey. Con artists, for example, would put on the supply list non-existent bakeries whose flour would be sold on the black market. Fictitious bakeries were the subject of intriguing court dramas in 1979 (Sudanow October 1979) and before Nimerie’s instantaneous justice courts in 1983–1984 (el-Affendi 1991, 125; al-Kabbashi 1986, 40–42). Finally, crimes involving phantom workers on payrolls began to appear in courts. The mughtaribīn economy was also the breeding-place of crimes that shocked Muslims by their newness, the satanic schemes behind them, and their skillful execution. Recruiting employees for work in the Arab Peninsula was big business, which was exploited by con men preying upon the potent fetishes of the state such as stamps and documents, and used them for personal gain. These con artists would lure men who were desperate to immigrate, into signing false contracts of work abroad, and would charge fees for passport and visa clearance. Charges of this fraudulent practice multiplied before courts in the period surveyed between September 1984 and November 1984 (al-Sahafa 8, 15, and 23 October 1984; 20 November 1984). The threat these scams posed to the respect of the state is evidenced by the case tried by a security tribunal in 1979. The defendants were a Lebanese, an Egyptian and a Sudanese Coptic of Egyptian extraction. The defendants’ desirable white skin color and their ability to speak Arabic of the dreamt about wealthy countries heightened the drama of deception. The foreignness of the defendants, of course, accentuated the vulnerability of both the Sudanese and their government. The exhibits of the case comprising diplomatic plates, exit visa seals, Sudanese passports, and discharge certificates, indispensable for employees to get an exit visa to leave the country, were right there before the court for the people to see the hollowing of their state (Sudanow, June 1979; al-Sahafa 19 November 1984).

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The mughtaribīn economy spawned other crimes that jeopardized the kinship system, the rock bottom safety net of a society that lacked confidence in a state that had hardly cracked its colonial shell. Distrust blemished erstwhile blood and friendship relations. The mughtaribīn families were deprived of remittances and commodities by those trusted by relatives to deliver (al-Sahafa 21 September 1984; 15 October 1984; 6 November1984). Jumping bail put erstwhile bonds of kinship and friendship in jeopardy, and the craze for money tested the mores of the people. ‘You cannot trust anyone anymore’ became a formulaic ending of stories about money and people. Nothing was sacred and cheapness was rampant. News of pilgrims caught smuggling crack and stimulating pills shocked people. Millineralism (al-Karsani 1993) and vigilantism interfaced in the discourse and practice of a culture unable to cope with the harshness of the times. The court drama of a gang apprehended for smuggling and fraud in April 1979 brought the despicable bāṭil economy home like no other story. A police officer described the gang as ‘a state within the Republic’ in reference to the official insignia of the state it had at its disposal. The state security found gang forged passports and counterfeit business contracts. Various rubber stamps were seized including some from the Republican Palace, the Council of Ministers, the Ministry of Interior, Arab embassies, and business houses. The 249 passports found, which changed hands for about 200 Sudanese pounds ($200) each, were stolen from the Ministry of the Interior and had the appropriate visas and permits allowing their holders to enter the countries of the Arab Peninsula. To shore up its credibility, the gang operated from first-class hotels and used cars with false diplomatic license plates for transportation. Passing themselves off as sheep or garlic merchants, the gang members had forged documents to clear goods through customs at Port Sudan. For a city accustomed to simple-minded felonies, the American style of criminality adopted by the gang was extremely disconcerting. They even had a specially modified car for their getaway. Built in the body of the vehicle were eight extra fuel tanks to survive a police chase, a unique event in the annals of the city police. Astounded, an official likened the chase that led to the arrest of the gang to ‘something you only see in films’ (Sudanow, June 1979). The sophistication of crimes was noted in a story in Sudanow. Smugglers mastered the art of disguising drugs for which the Sudan became

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the transit point to nearby rich Arab countries. False bottoms began to appear in suitcases for hiding drugs. Violence marred the encounters between the drug gangs and the police. Women, who were proverbially described as, ‘had they been an axe they would not have split a head,’ were unexpectedly found engaged in the trafficking of drugs. Another gang specialized in stealing trucks and sheep. The latter were killed and sold to grocery stores. A shoot-out between the police and the gang left two wounded. For a price, yet a third gang provided licenses for drivers and vehicles. Another accomplice stole these licenses from the Government Printing Press where he worked. Records of fingerprints, required by Arab employers from their prospective Sudanese employees, were bought from the black market, such as the office opened in Um Badda neighborhood in Omdurman for this purpose. Unused documents confiscated by the police were found to be genuine and had been provided by a gang member who had worked for the fingerprints department of the Sudan Police. The discovery of false school certificates by the authorities of Cairo University in Egypt led to the dismissal of the women students involved after a relatively successful enrollment in different colleges of the University including medicine (Sudanow, February 1983). A case of marijuana, sent from Bangkok to London via Khartoum, and busted at Khartoum airport was said by the authorities to be ‘baffling.’ The Khartoum reference address to this shipment, with a tag price of $1.5 million, was found to be ‘completely fanciful’ (Sudanow, January 1984). Budgeting for Justice The rise in crime rate caught the bankrupt state by surprise. The inability of the government in the 1980s to budget for vital services such as justice and health was brought home in lucid investigations in Sudanow, a lively monthly magazine whose publication in English gave it a relative freedom of expression not enjoyed by the Arabic press.17 For not being

17 The total government spending on health decreased from 10.2 percent in 1970–1971 to 7.3 percent in 1978–1979. From 50 million Sudanese pounds requested by the medical authorities in 1976–1977, the government was able to dispense only 37.5 million. Allocations for health for 1978–1979 (35.7 million Sudanese pounds) and 1979–1980 (30.5 million) were sliding down. The damage these meager allocations caused to medical services is cleverly investigated in Sudanow (April 1979; October 1980; October 1982; January 1984). For a story on the inability of the national system of health to provide drugs, see Sudanow (October 1982).

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able to police the city, or to deliver justice timely and fairly, the state looked the other way in the face of an aggressive vigilantism. Litigation multiplied as a result of the bāṭil economy bringing the wheels of justice to a grinding halt. Case backlog began to haunt the Judiciary and to dominate the discourse on justice with the executive. Lawyers were commonly resorted to in order to access an impenetrable system rather than to argue specific cases. People took up arms to fight crime. Neighborhoods lying in the city new extensions, where rural immigrant built their shantytowns, were a living nightmare of housebreaking for which these immigrants were held responsible. I still remember my time in Jabra, a new extension in Khartoum, when I used to get up, armed and dangerous, at two o’clock in the morning to participate in a neighborhood watch led by two ex-servicemen. For 15 Sudanese pounds I purchased a pistol that I did not even learn to use. Beating thieves, identified largely on racial or ethnic basis among those suspicious walkers in the night, a sort of a ‘racial profiling’ in American terms, was a common practice. Police would take a beaten suspect in custody without questioning his catchers, and the vigilantes had the police in their debt. They not only did the job assigned to the police, but might have also provided them with private cars to shuttle between hospitals, police stations, and courts. The rage for punishment was rife. A woman, who was looking at a thief beaten almost to death lying on the corridor of the Emergency Ward of Khartoum Hospital, said to me very casually and judgmentally, ‘They did not beat him right. What a shoddy job!’ Under-funded and increasingly coming under government control, the Judiciary, whose modern courts handled a minority of the case load in the country leaving the bulk to native and lay benches courts, was represented in the Sudanow investigations as in disarray with declining efficiency and public image.18 Laymen as well as lawyers were reported 18 Although various estimates give varying percentages of caseload handled by native courts to the government court system, they agree that native courts handle the majority of cases. A 1965 estimate assigns to the modern system of courts, including sharia courts, the handling of between 25 to 45 percent of the total number of cases heard in Sudan (Thompson 1965, 477). From his extensive field experience in law reporting as an official in the Sudanese Judiciary between 1962 and 1964, Carroll Brewester estimates that the native courts handled 80 percent of the total cases in Sudan (McPhee 1966, 126). M.I. El-Nur, a renowned judge, concludes from 1957–1958 statistics that native courts heard 55 percent of the cases in the country (1960, 86–87). The Judiciary in the war-ridden southern region after enjoying regional autonomy in 1972, was described as ‘collapsed’ creating ‘a vacuum of legality’ (Sudanow, June 1981).

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as accusing it of ‘gross inefficiency and incompetence.’ Poor working conditions made judges vote with their feet, either immigrating to the oil-rich countries of the Arab Peninsula or going into private practice. Thus the number of practicing judges (538 judges) in 1980 was 69 percent less than the nominated judges (782). The depletion of personnel in the Judiciary was staggering. Ten of the fourteen judges appointed to bench in August 1979 relinquished their jobs in August 1980. Worse still, an advertisement for a hundred assistant magistrates attracted only fourteen applicants. The budget for administrative forms, indispensable for carrying out court business, was found to have been cut by 80 percent (Sudanow, September 1980). Delay in deciding cases, which would be Nimerie’s pet argument against the Judiciary, originated in these impoverished circumstances. In addition to working with diminished capacity, the Judiciary’s poor show was made worse by the heightened need for it in a society growing more complex and in the throes of an excruciating bāṭil economy and over-urbanization. A large backlog of cases came to haunt the Judiciary. In 1978 only 42,399 civil and criminal decisions were reached in a business of 89,595 cases, reflecting an operating efficiency of less than fifty per cent. Sudanow poignantly captured the delay in a caption of a picture of a well-attended court that reads, ‘Waiting for justice: takes as long as two years’ (Sudanow, September 1980). Tatwīr Muḥāmi (Waking up to Lawyering) The backlog of cases put the efficiency and fairness of the Judiciary into question. Judges were understandably accused of dereliction of duty or outright complicity with one adversary or the other. The slowness of the due process of law ‘popularized’ the advocacy profession.19 Lawyers were appraised more for their skills in manipulating and ‘greasing’ the system rather than for their professional competence. In the eye of the public, judges and lawyers were hardly seen as separate professional domains. In their leisure, in the nightly qaʿda of the old boys club, they rubbed

19 A lawyers’ joke cycle emerged. A lawyer, goes a joke, rebuked someone for being talkative. Astounded for being rebuked by a lawyer for being a windbag, the man said, ‘Look who is talking? Isn’t he the one who has opened a talk-shop for a living?’ Another joke tells about a community of Sudanese who hired a lawyer to represent them in a land case against another community. When the lawyer began defending their case, they stopped him saying, ‘Fellow! We hired you because our adversaries hired one. When it comes to talk, leave it to us.’

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shoulders and the ‘bait for judges’ (Qur’an 2:188) was served.20 Thus litigants were burdened with hiring a lawyer if their cases were to see the light of day. Yatwir muḥ āmi (wake up, rise, hire a lawyer) became a popular phrase. It was common to see a poor litigant calling upon their kin and friends to collect enough money to hire a lawyer. With reference to family law, Salman predicted in 1977 that demand for sharia advocates would increase. More sharia legal students would become advocates in family law encouraged by the increase in family disputes and litigation. He continues: The urbanization and industrialization processes have conspicuously shaken societal stability. Waves of emigrants are flooding the big cities from rural areas. One result has been the disintegration of many families. The role of elders as arbitrators in family disputes is waning steadily. The shame of public hearing is gone . . . In most of the sessions I attended, I have observed that if one party is represented by a council, then the other party will seek representation (1977, 165).

Access of the poor to the justice system began to figure in the discourse on justice. The 1980s witnessed initiatives to provide more efficient aid to the poor. The provision of such aid had been a practice enacted in the 1973 Constitution, the Advocates Act, 1980, and the Code of Criminal Procedure, 1974. The mechanism was simple. Under the system, the Attorney-General would receive applications for aid and refer them to the Bar Association that appointed advocates to handle the matter. The system was criticized for aiding only a very few people confined to the capital city. Furthermore, advocates assigned to plead cases, it was said, were usually the inexperienced ones. Advocates were thus blamed for not showing special institutional enthusiasm for legal aid. The government wanted to meet its responsibility by providing the poor with access to the justice system. The Attorney-General Office Act, 1981, Section 5, 2, j, obliged the office in no uncertain terms to establish a legal service agency for the public. A further development in legal aid took place in 1983. A new body for legal aid, supported by the Ford Foundation, was proposed. Although the plan was to put this new legal aid organization under the supervision of the Attorney-General, it sought to give the organization a measure of autonomy and represent all 20

In denouncing a similar state of corruption in the administration of justice, Archbishop Karanga of Kinshasa in a pastoral letter asks, ‘Why is it that in our courts justice can be got only by fat bribes to the judges? Why are prisoners forgotten in jail? [Because] they have no one to pay off the judge who sits on the dossier?’ (Davidson 1992, 259).

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concerned in its work. The Bar Association, not specifically friendly to Nimerie’s regime, saw the new body as too bureaucratic for a job it had been doing efficiently for years. The Bar was particularly apprehensive that the new body would be too timid to stick out its neck in crimes of conscience. The fray over the legal aid for paupers, in which the prejudices of the Bar, the Attorney-General, and the Judiciary were dragged in, was apparently merciless to warrant Sudanow titling its story about the controversy: ‘Simply L(awful)?’ (Sudanow, May 1983). Nimerie’s Regime Addressing the Popular Rage for Justice To placate this public rage for justice, Nimerie and his security apparatus found it advantageous to bypass the Judiciary. Even before the drastic disarray of the Judiciary in the 1970s, the executive in Sudan, largely in the form of a military junta, had always found it expedient to sponsor a ‘second Judiciary’ (Sudanow, September 1980). Abboud’s junta (1958–1964), for example, installed a rudimentary second judiciary, whose success in reviewing appeals against decisions of regular courts, is lamented by Henri Riyad, a High Court judge and a legal scholar (1967, 83–84).21 To show its determination to see justice served, Nimerie’s regime also found recourse to military tribunals advantageous. After a failed coup in 1975, the Constitution was amended giving President Nimerie emergency powers to appoint military tribunals. Besides trying political opponents, these tribunals were increasingly set to go after blackmarketeers and economic saboteurs whose wheeling and dealing had been perceived by the public to be the cause of their economic plight. The Economic Section of the all-powerful National Security Apparatus investigated these economic crimes thus bypassing the overburdened police departments. The slowness of the Judiciary in deciding cases in these unsettling times made it lose credibility even among its veteran cadre who should have known better. A number of senior judges were bought into the

21 Sudan Defense Act, 1958, stipulated that cases under review by civil authorities can be referred to, and be tried before, military tribunals. Defendants embarrassed their lawyers by asking them to appeal the decisions of civil courts to the Supreme Council of the Armed Forces, the center of power of the ruling junta (Riyad 1967, 82–84).

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alleged goodness of prompt justice in the security tribunals. Already some of these judges willingly accepted appointments on them. Not in the least revolted by this second judiciary, renowned judges could see its point and legitimacy. The discourse about speedy justice attracted stories about the practice in town benches. Atbara town bench, empowered to a term of imprisonment of up to five years and up to 500 Sudanese pounds ($500) in fines, took little less than half an hour to try a case. Its turnover was amazing. It helped alleviate some of the caseload of a shrinking professional judiciary and was recognized by advocates as one of the best in the country. Nonetheless the court, like all town-bench courts, was prejudiced against lawyers who, according to the court, would only be hired by a guilty defendant. Although appeal of its decisions was possible, very few of its defendants bothered to contest them because of ignorance of their rights or fear of incurring more costs. Of nine appeals made at the time of the writing of the story, the higher courts supported just one conviction. The convictions were either rejected or the sentence was reduced (Sudanow, April 1982). Theoretically speaking, this ‘merging’ of the judiciary and the executive was defended as a Third World paradigm of the cooperation of state powers and upheld as a clean break from the First World principle of the separation of powers (Sudanow, September 1980). Justice Lutfi, a reputable judge who once believed in the letter of the common law tradition in Sudan, and the first Chief Justice under al-Bashir Islamic Junta in 1989, defended these security tribunals as an integral part of the Judiciary.22 They were unique only, he argued, in having jurisdiction over a special subject matter that required special knowledge to handle the seriousness of the crimes before them, and the urgency to settle them (Sudanow, September 1980). Justice Fouad al-Amin, who presided over one of theses tribunals in 1979, became the Chief Justice during the most ardent phase of Nimerie’s instantaneous justice experiment, between1983 and 1985 (Sudanow, October 1979). The Judiciary itself was not averse to occasionally playing up to the rage for justice. Political pressure goaded it out of its usual solemn ways into this popularity contest. In a bid to meet the complaints of rising prices, attributed to the greed of sellers rather than the shattered economy, the government fixed prices for a number of commodities.

22

See his article in The Sudan Law Journal and Reports (1967).

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Two institutions arose as a spin on the government policy to control runaway prices. First, a ‘People’s Market’ was established in downtown Khartoum in which goods were sold according to the government price. Second, ‘Price Courts’ were set up in several market areas in the capital by the order of the Chief Justice. These courts were housed in army tents and the judges were military men. Hoarded goods were confiscated and transferred to the People’s Market to auction them off. Balckmarkeeters were singled out for severe punishments (Sudanow, December 1981). People enjoyed these feverish state overtures of love and concern and availed themselves of both the cheap goods and the stories about the greedy sellers scared out of their wits by these wrathful courts. Nonetheless, people soon would realize that a bankrupt state could not loot its way to popularity. The rapid on-the-spot decisions of the courts would come to be the standard mode of the instantaneous justice courts of 1983. Another antecedent of the instantaneous justice applied in laws and courts was the Protection of Public Tranquility Act, 1982. Although directed against crimes of a political nature, the act introduced some arbitrary elements that would figure predominantly in the instantaneous courts experience. The Act authorized the police to recruit the direct assistance of a force of volunteers automatically empowered to apprehend persons found in breach of the peace under the Sudan Penal Code of 1974. The work of this volunteer force would loom large in Nimerie’s courts of instant justice assisted in its work by al-Amr bi al-Maʿrūf wa al-Nahi ʿan al-Munkar (The Order of Good and the Prohibition of Evil) teams which have the sanction of sharia to police Muslim communities to see that they conform to the moral and ritualistic prescriptions of the religion (al-Sahafa 3 September 1984; 26 October 1984).23 Furthermore, the chief of the force sent to keep the peace instantly tries offenses, according to the Protection of Public Tranquility Act. By implication, defendants could be denied representation. Finally, flogging, the signature penalty of the instantaneous courts, was added to the punishment provided in the Penal Code (A Legal Correspondent 1983, 78–79). Rise in blue- and white-collar crime rates caused the People Assembly, the legislature, seen largely as an arm of the political regime although 23

The Order of Maʿrūf (good) and the Prohibition of Munkar (evil) Act, 1983, organizing the work of these groups was enacted as part of the package of Islamic laws and acts that became collectively known as the ‘September 1983 laws’ of Nimerie’s Islamic experiment (al-Kabbashi 1986, 31).

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with bouts of oppositional restiveness, to fidget in protest. To play up to the popular concern over the insufficiency of existing laws to deter crime and the slowness of justice, the People Assembly sought to toughen laws drawing on a popular Islamic notion of justice. These laws either undermined the work of the Judiciary or were completely antagonistic to it. Although some of the provisional orders were voted down in the Assembly, their mere tabling for discussion indicated distrust of the existing laws to deter or punish criminals. To combat the rising rate of burglary, a bill was tabled before the Assembly as early as 1977 to impose arm amputation in theft rather than imprisonment (Sudanow, April 1977). In April 1977, the Assembly reviewed, or passed, a number of provisional orders smacking of a ‘rage of justice’ against the sluggish pace of the courts. Against the advice of its own Legal and Legislative Committee, the Assembly removed from the courts the right to consider appeals against evacuation orders of houses occupied by government employees. The Assembly decided to go against the Constitution by such a removal of the courts’ authority. It refused to consider an alternative plan recommended by its legal experts for improving the workings of the courts.24 Further, the Assembly reviewed and rejected a provisional act to reduce the pension rights of employees who absented themselves from work, or who resigned to work abroad, without going through the correct procedure. To express its dissatisfaction with the work of the Judiciary, the Assembly moved to downgrade the judges’ terms of service. A bill was tabled to bring the judges’ pension policy in line with the rest of the government employees. The order discussed in the Assembly could have abolished the judges’ privilege of receiving a pension after twelve years. It would have required judges to become pensionable after twenty-five years just like the rest of the civil servants. Under the existing rule, judges often served the twelve years and then resigned to look for work elsewhere. Their increased rate of retirement and resignations might have angered the lawmakers. The move to impose the twenty-five-year service requirement for pension on the judges was not carried. It was

24 The Judiciary would revisit this law in favorable times after the removal of Nimerie in 1985. In a case of forced removal from a government house reviewed by the High Court in 1989, the court repealed para (4) of the law of Removal of Occupants of Government Buildings, 1969, which denied court intervention in orders executed according to this law (al-Ayyam 3 February 1989).

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interpreted however by a member and a legal adviser of the Assembly as punitive (Sudanow, May 1979). Judges on the Offensive, 1980–1983 In the 1980s judges began forcefully voicing their views in the raging debate on crime and punishment. Although they recognized the break down in the administration of justice, they put the blame at the government’s doorsteps. The government, they argued, was not only denying funds to the Judiciary, but also compromising its independence by resorting to special tribunals to try cases punishable by the then existing laws. Judges’ indignation over the violation of the independence of the Judiciary went back to the proclamation of the 1973 Constitution. Unlike the 1956 and the 1964 Constitutions, that enshrined the selfadministration of the Judiciary, the 1973 Constitution entrusted the administration of the Judiciary to a High Judiciary Council (HJC) headed by the President of the state and comprising, in addition to the Chief Justice and his assistants, various state ministers, academics, and co-opted members. Furthermore, judges were especially affronted by the appointment of judges to committees of the ruling and only party: for example, the Chief Justice was appointed a member of the Political Bureau, and his assistants were appointed on the Central Committee (Sudanow, September 1980).25 Later amendments of the Constitution made things worse. An amendment in 1975, following an aborted coup, enacted the power of the President to commission security tribunals. The judges saw the executive as creating a parallel judiciary. Aggrieved by the degradation of their institution, some 200 judges held a meeting

25 Senior judges were not averse to the blurring of the boundaries between the judiciary and the executive. The Chief Justice, Khalafalla al-Rashid, described the independence of the judiciary conceived of as the separation of powers practiced in liberal democracies, as ‘formal.’ In Third World countries, the judiciary, in his words, needs to communicate effectively and at close quarters with the executive. ‘Cooperation of powers,’ in the words of Justice Lutfi, the leader of the People Assembly at the time, is more in tune with Sudanese milieu than the separation of powers. Justices Rashid and Lutfi did not see the state security tribunals as constituting a secondary judiciary as alleged. As specialized courts, argued the judges, they complement other courts of law (Sudanow, September 1980).

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in Khartoum District Court on May 13, 1980 to discuss their professional grievances. In their memorandum to the Chief Justice, the judges complained about the shrinkage of their salaries due to the ravages of inflation, their shabby working condition for lack of financial support, and the increasing interference of the executive in their work by passing once judicial business into the hands of state security tribunals. 26 Judges revisited their professional complaints in 1981 in a union action that came to be known as the ‘Resignation of the Junior Judges.’ At an in-service training course attended by Khartoum province junior judges, these judges, desperate to persuade the government to act upon their long-standing complaints, went in a procession to the Chief Justice and tendered their resignations. In addition to their standing claims, they asked this time for the removal of the Chief Justice as a condition of their return to work. Judges in other provinces were called upon to resign too (The Sudan Communist Party 1988, 227). The legal community came out strongly in support of the judges. The Bar Association decided that lawyers would boycott courts in support of the resigning judges. The Law Society of the law students of the University of Khartoum organized a panel in which resigning judges addressed an audience on the problems at issue with the government.27 In a strong message of support for the junior judges and in defiance to orders from the President, the judges of the High and Appeal courts refused to review work from junior courts. To help break the strike, the President directed lay judges of the bench to fill in for the resigning judges. Judges affiliated to the Muslim Brotherhood, which was supportive of the regime, allegedly worked hard to stop the strike. Some of them are said to have crossed the picket line (1988, 227).

26 Judges claimed that their salaries were downgraded as a result of the workings of the Job Evaluation and Classification Scheme of 1973. The committee for evaluation and classification was appointed to streamline scales and salaries in the public sector. On the application of its 1978 plan, many state employees found it unfair and was variously contested (Sudanow, July 1978). 27 In a meeting organized by the law students of the University of Khartoum to support the striking judges in July 1983, a judge spoke saying that the Attorney-General had asked him to stop the proceedings in a corruption case in order to protect public interests (Kursany and Kamier 1985, 163).

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The lay and professional discontent with the unruly and inefficient Judiciary had tempted Nimerie since 1974 to forcefully advance al-ʿAdāla al-Nājiza (instantaneous justice) to reform the administration of justice in the country. The judges were acutely aware of their poor performance in administering justice. As early as 1974, they held a conference to discuss the problems standing in the way of the due process of law. Nimerie did not cease reminding them of this either. The meeting took place at the time of Nimerie’s ‘Second Legal Revolution’ of 1973 in which the shortlived cvil law, derived essentially, or allegedly copied rather, from the Egyptian law and other Arab secular states, was replaced by the colonial common law (Mustafa 1973, 135). Nimerie’s address to the judges at the conference prefigured the issues at the heart of the critical confrontation between the President and the judges in the early 1980s. First, he expressed the public concern about the observed delay in deciding cases. In perhaps one of the earliest articulations of the concept of instantaneous justice, if not the moment of its enunciation, he called upon the judges to implement this justice for ‘delaying justice is denying it.’ Second, he hailed the Civil Procedure Act, 1974, and other laws enacted since 1973, under the triumphant common law school headed by Mustafa, as a breakaway from the colonial laws since it was derived from ‘the traditions of Sudan and her deep-rooted customs.’ The time would come in 1983 for the same Nimerie to trash these very laws as colonial through and through. Finally, he advised judges to model their personal behavior and action on the morals and values of the people. They were asked to dignify themselves by keeping away from all that was blemished and was injurious to Sudanese traditions (The Sudan Judiciary 1974, 11–13) The three issues would play out in a big way in the conflict between Nimerie and the Judiciary until 1983 when he established his Islamic state. The judges rolled up their sleeves to rise to Nimerie’s challenge. In coming to grips with the case backlog, the Judiciary established a department for research and statistics to monitor and improve its performance in deciding cases. The department was also directed to provide the raw data for sociology of crime in the country. Picking up apparently from Nimerie’s concerns in his address, the Judiciary assigned to this department the duty of proposing, in the light of its research, the means to implement instantaneous justice. The department published a meticulous

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record of the backlog for the years 1968–1977. The drop in the efficiency of the Judiciary was alarmingly pronounced.28 The department was still in existence in 1996, but ceased publishing its findings. Nimerie’s political program announced for the third mandate (1983– 1989) as a president carried the first public, coherent commitment to the instantaneous justice concept that would eventually be implemented in September 1983. In his 1983 pronouncement, Nimerie renewed his belief in the independence of the Judiciary that his adversaries had accused him of having already breached. In supporting efforts to improve the performance of the Judiciary, he defined the efficiency of the institution, however, in terms of ‘the prompt resolution of conflicts, and the determination of rights and obligations without delay, tardiness, or causing people to aggrieve waiting for justice’ (Sudan Socialist Union 1983, 51; Zein 1989, 202–203). With the passage of time instantaneous justice increasingly became specifically a political repudiation of the then existing Judiciary. This anti-Judiciary element of the concept came to the fore in a speech Nimerie gave at the inauguration of al-Fasher Appeal Court in early June 1983. In his speech, he made known his determination to ‘carry the banner of instantaneous justice.’ Rather than defining this justice in abstract terms as he did before, he defined it this time in reference to specific accusations of a judiciary he believed to be tardy and corrupt. In delaying deciding cases, judges, Nimerie alleged, were negligent in administering justice, thus putting peoples’ rights in jeopardy. To rectify the Judiciary, he announced his plan to purge from it corrupt judges: gamblers; drunkards; bribe takers (Khalid 1986, 38–39). Nimerie’s charges were designed to put the unruly Judiciary on the defensive. His accusations against the judges drew on a popular perception, and perhaps revulsion, of the leisure habits of their modern elites in the government.29 Nimerie’s speech was apparently echoing popular 28 Although cases before all courts increased from 65,644 in 1968 to 87,618 in 1977, the percentage of cases resolved decreased from 70 percent to 67 percent for the same period. Deciding civil cases in the period indicated dropped from 62 percent to 50 percent. Decisions on criminal cases, on the other hand, dropped from 79 percent to 70 percent (Sudan Judiciary 1977). 29 After mending his own decadent ways in the eyes of Muslims, Nimerie issued an ultimatum to his close advisers, ministers, top government officials, and senior army officers to do the same within two weeks, or be sacked. The instruction to these civil servants to desist from drinking, gambling, and sexual escapades in 1977 came to be known as the ‘Righteous Leadership Directive’ (el-Affendi 1991, 122). Al-Haj Musa, a minister, a mentor, and an official singer of Nimerie’s praise, greeted the occasion of

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criticisms of the urbanite elites’ leisure styles whose moral indulgences had been rekindled by the religiousness noted earlier. These styles such as the qa’da (old boys’ clubs gathering for carousing buttered up by gambling and sexual favors) entangled judges in social networks that might have influenced their rulings. Even a staunch critic of Nimerie admitted that some of the judges fired by Nimerie for corruption did not deserve the shedding of a tear (Khalid 1986, 24). Nimerie’s plan to strip the Judiciary of self-righteousness succeeded. The whole legal profession took cover scrambling for defensive positions. On June 3, 1983, the Bar Association issued a statement cautioning Nimerie against dismissing judges without appropriate legal procedure. Unmoved, Nimerie dismissed forty-four judges by a Republican Order on June 4. In protest, the provincial and district judges wrote to Nimerie questioning the legality of this erratic action. Stonewalled, the judges issued a statement on June 11, in which they flatly rejected and condemned charging the Judiciary with corruption. Although defending their impeccable ethical professionalism, the judges recognized the difficulties that led to the slowing down of the due process of law. In their letter, they not only said that they had acknowledged their shortcomings in the past, but that they had also already suggested solutions to the Chief Justice who had deliberately turned a deaf ear. They, therefore, reiterated their demand for the removal of the incumbent Chief Justice.30 Because they received no reply for their previous communication to Nimerie, the judges submitted their resignation until the dismissed judges were reinstated. They also demanded that the loopholes in the

his election as the President of the socialist Union in 1977 with an address that became engraved in people’s minds both for its rural style and the death of Musa on the evening of the day he had delivered his speech. In his speech, al-Haj Musa mentioned specifically the Righteous Leadership Directive as one reason why people adored Nimerie. He said, ‘People loved you, Mr. President, because you honored Qur’an and directed your assistants and helpers to stop gambling (waragī), drinking ‘araqī (alcohol from dates), and the deflowering of the beauty of the land’ (Ministry of Information and Culture 1977, 7). Note the rhyme in the first parts of the sentence. 30 Professional jealousies might have also fuelled the judges’ dislike of the Chief Justice, al-Rashid. After an early short service in the Judiciary, he moved to the Attorney-General’s Office until appointed to lead the Judiciary between 1973 and 1983. His professional background, as a disqualification for being the Chief Justice, was made abundantly clear in the June 1983 statement of the judges. A Chief Justice, in the view of the statement, ‘needs to be a career judge who battled with our kind of work in practice and not in mere theory . . . a man who has experienced what we have experienced’ (A Legal Correspondent 1983).

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High Judiciary Council Act, 1976, which made the encroachment on the independence of the Judiciary possible, be closed.31 Unmoved again, Nimerie accepted the judges’ resignations. He directed that the resulting vacancies be filled by suitable individuals with legal experience or otherwise (A Legal Correspondent 1983). While emphasizing instantaneous justice as the ultimate recipe for the reform of the Judiciary, Nimerie nonetheless made a calculated bend to the judges’ wrath and sought to address their grievances. He convened the National Committee to Lay the Basis of the Strategy of Instantaneous Justice, to which both judges and advocates were invited, to look into ending the strike. A number of sub-committees were convened to recommend on the ethics of the legal profession, the streamlining of the different traditions in legal education, the training and promotion of judges, and the terms and conditions of service in the Judiciary. To show his enthusiasm for the work of these committees, whose critics saw as superfluous and repetitive, Nimerie met with the Committee for the Training and Promotion of Legal Cadre (Khalid 1968, 37–38, 280). No doubt, Nimerie’s appeasement of the Judiciary was continuing the war against it by other means. Two-pronged tactics served his purpose in this regard. First, he kept hammering in his concept of instantaneous justice, a critique of the performance of the Judiciary to which the public could relate. Chief among the committees formed was the Committee for Amending the Law of Criminal and Civil Procedures, commissioned to simplify juridical procedures to aid in the prompt decisions of cases. Second, to taint the judges in the public eye he lavishly raised the salaries of the judges beyond even their wildest expectations. Moreover, he even relieved advocates of the burden of paying income tax. A critic of Nimerie described his generosity with the Judiciary and their supporters in the Bar Association as a sly way to transfer the judges’ strike, intended to reform the judiciary, to a matter of pay raises (Khalid 1986, 277). Although paying lip service to reforming the Judiciary, Nimerie was determined to change the Judiciary, from what it had been. On September 1983, he reported this determination to the leadership of the Sudan Socialist Union, the ruling party. He graciously refused, as the Chairman 31

The judges wanted to go back to the 1955 and 1964 Constitutions by which the dismissal of judges of the High Court can only be undertaken by the SCS in the light of the recommendation of the High Court, or a resolution of the legislature passed by three quarters of its members (al-Sahafa 15 April 1985).

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of this leadership, and inspired by the model of the President, who was Nimerie himself, to elaborate on the complaints he had received about serious deviation in the due process of law. However, he continued to say, that mounting evidence had made the restructuring of the Judiciary inevitable. He reiterated his standing repudiation of the Judiciary for not delivering justice fast enough. ‘For justice is denied,’ he said, ‘when charges hang on the heads of defendants neither proven for them to go on with their lives, nor discarded for their minds to soothe and rest’ (al-Sahafa 4 September 1983). Five days later Nimerie was good on his word to overhaul the Judiciary. On September 9, he promulgated his Islamic criminal, civil, judiciary organization, and procedural laws that came to be collectively known as the ‘September 1983 Laws.’ In replacing almost a century-old tradition of legal practices, received from English common law, in a blink of an eye, he made the old judiciary redundant (Khalid 1986, 279). The vindictiveness of Nimerie’s ‘legal Revolution’ was perceptively captured by Zein who argued that this revolution was designed less for its Islamic content than for its anti-judiciary content (Zein 1989, 186). Nimerie’s legal revolution dramatically resolved the longstanding debate over law and identity in favor of Islam as the defining tradition of the nation. Judges were asked by Nimerie in his address to take pride in this return to an indigenous and superior legal source. At the same time he took a shot at the colonial laws in place for hurting Muslim sensibility by legalizing practices such as adultery, trading and consumption of alcohol, and gambling. Delegitimized by Nimerie’s law, these practices would be punished by stoning and flogging.32 By and large, it is in the area of the philosophy of punishment that Nimerie’s legal revolution distinguished itself. His choice of retribution over rehabilitation, a practice established by colonial modernity, was destined either to retire the old judiciary or send it back to the drawing table. He epigraphed his address to the nation with the Qur’anic verse of the ‘a life for life, and eye for an [eye]’ (Qur’an 5:45) theory of punishment in Islam. Flogging, amputations of arms and legs, and qaṣāṣ (retaliation) or forgiveness were enacted to bring the Qur’anic retribution to life. Nimerie typically criticized imprisonment for being

32 Although stoning was specified by Nimerie as a punishment, it was not enacted into the law. Polemically, modernists Muslims questioned the integrity of Nimerie’s Islamic laws for leaving stoning out.

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mere free room and board. In conventional victims’ rights argument, Nimerie saw crime victims suffer a double jeopardy. They do not only lose a limb or a person, but also have to pay for the upkeep of the criminal. In his very address, however, Nimerie increased the maximum imprisonment sentence from twenty to thirty years. Obviously, the rage to punish was the consideration at issue, not the cost of punishment or even strict Islamic notions. By inciting judges in his address to be more than government officials, Nimerie wanted them, in the best tradition of Islam, to be justices. Prophetic traditions on the unenviable career of judgeship, for the virtual impossibility of fairness in humans, were quoted at length by Nimerie to raise the bar for judges. Being a judge, one tradition reads, is like being slit without a knife. To rise up to this almost hopeless mission of fairness, for which one is accountable to God and Muslims, judges are asked by Nimerie to be imams of the people, their scholars, and the models of moral integrity. In his address, Nimerie phrased his instantaneous justice in terms that were intended to appeal to, as well as galvanize, popular discontent with the justice system. He painstakingly translated the popular apprehension of the rising tide of crime into graphic statistics. He gave the frequency of occurrence of crimes against body and property. And the figures were numbing.33 According to Nimerie, these horrifying statistics dictated that he revise the Penal Code to integrate it organically and spiritually with sharia. Monitoring the decline of crime rate, attributed to the working of sharia, and communicating the gratifying findings to the public, would be one of the major concerns of Nimerie’s bureaucracy to peddle instantaneous justice. To confirm the public in its perception of the inefficiency of the Judiciary, Nimerie’s address thoroughly documented the backlog of cases in every region of the country. His Judiciary of instantaneous justice began to report almost on daily basis on how it had been clearing up the mess of the old judiciary. In line with his previous condemnation of the judges’ depraved style of life, and the style of life of his critics among the professional elites for that matter, Nimerie made a special mention of punishing crimes related to gambling, taking bribes, and drunken driving. Recall, he sacked 44

33 In 1983, a rape reportedly took place every hour and two minutes, an armed robbery every ten hours and two minutes, a molestation every six hours and five minutes, a burglary every hour and six minutes (al-Sahafa 9 September 1983)

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judges of a force of 540 for allegedly indulging in the vices mentioned above. He repudiated gambling as the folly of the rich and powerful by which they squander their money and destroy their families. Bribes were singled out as deserving severe punishment on the basis of being repudiated by the Prophet. Drunken driving, largely a privilege of the modern elite who could afford both drinking and driving, was blamed for taking lives and destroying property (al-Sahafa 9 January 1983). Blowing the Horn of Nimerie’s Instantaneous Justice Although the post-1983 period falls outside the scope of this book, a certain strategy adopted to peddle the positive record of the instantaneous justice may shed light on the conflict over the delivering of justice between Nimerie and the Judiciary. To advertise the 1983 Judiciary as a clean break from the colonially-inherited one, Nimerie’s regime focused on publicizing the administrative reforms it had taken to clean up the backlog, and the statistics that supported its accomplishments. For example, the Judiciary Authority Act, 1983 decreed the appointment of senior judges on the first criminal court to replace the inexperienced judges of the old judiciary. With this competence brought to decide on cases at the first court, Nimerie’s Judiciary sought to lessen appeals that were endemic to the old judiciary. In investing less energy and personnel in the appeal process, the Judiciary, it was argued, could allocate more resources to deal more effectively with civil and family law cases (al-Sahafa 2 October 1984). The government-controlled media was kept busy drumming up the success of the courts of instantaneous justice. Front-page stories in the press covered the meetings of the Chief Justice with judges to spread the word of prompt justice, and his plans to mobilize the Judiciary to carry it out (al-Sahafa 12 January 1985). For example, the leadership of the Judiciary in the High Court and on the regional level was enlisted to help in clearing the backlog of junior courts (al-Sahafa 13 and 25 October 1984; 10 December 1984; 10 January 1985). Also, lay judges were appointed to try simple criminal cases. They were also commissioned to review charges against those in the custody of the police, whose numbers were increasing alarmingly, to expedite their cases or dismiss the charges (al-Sahafa 21 and 24 October 1984). Committees for reviewing, evaluating, and recommending means to clear up the backlog were formed (al-Sahafa 18 December 1984). Further, the

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Judiciary, in a bid for accountability, appointed a Board of Inspection and Complaint to address public disquiet regarding the slowness of the due process of law. In addition to a fully-fledged Ombudsman Office to handle grievances addressed to the President (al-Sahafa 7 October 1984), a judicial adviser to the President was appointed on the High Court to serve as a liaison between the executive and the Judiciary (al-Sahafa 15 October 1984). Nothing happening in the Judiciary went unreported: the submission of judiciary budgets; the formation of new courts and the names of their judges; the promotion and transfer of judges; the approval of funds allocated for buildings and furniture (al-Sahafa 27 October 1984; 14 November 1984; 5 December 1984). To clear up the backlog the judges’ resources were mobilized maximally—which in some ways was a measure to discipline the Judiciary (alSahafa 31 January 1985). Judges’ vacations were canceled. Their training programs, including overseas scholarships, were shelved. Publishing the transfer of judges to remote parts of the country was meant to send the message that no-one was too important to dodge serving where there was a call of duty. Complaints were rife before because senior professionals would not trade the comfort of Khartoum with the harsh life in the provinces. A senior judge had already attributed the backlog to judges’ reluctance to be transferred to the southern part of the country (Sudanow, September 1980). Judges, who had been assigned to state corporations, where they received lucrative pay and entitlements, had been called to court work. Judges would not be off the mark if they saw such recall as a form of punishment. Having painted a grim statistical picture of the case backlog and the skyrocketing crime rate to justify the Islamic laws of 1983, the regime wasted no time in advertising its achievement in delivering justice. Statistics were published to show the dent instantaneous justice had made in the backlog. The tours of the Chief Justice and judges of the High and Appeal Courts, and their visits to regional judiciaries, brought forth both the grim realities of the backlog and the mobilized energy to clear it up (al-Sahafa 24 October 1984, 17 and 23 December 1984; 11, 14, and 16 January 1985; 9 and 17 March 1985). Regional chairpersons of the Judiciary were either interviewed or held press conferences to spread the good news of cleaning up the mess of the judiciary in their regions (al-Sahafa 16 January 1985). On the first anniversary of the implementation of sharia in the courts of instantaneous justice, a paper presented to the international conference celebrating the occasion broke the good news that crime

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rate plummeted to 71 percent (al-Sahafa 25 September 1984). Two reports in late 1984, after the lifting of the state of emergency imposed between April 29, 1984 and September 29, 1984 to crack down on political opposition to Islamization, attributed the decrease in crime rate to the implementation of sharia (al-Sahafa 2 October 1984; 23 December 1984). Apparently these statistical reports were also intended as rejoinders to the opposition’s argument that crime rate increased rather than decreased after Nimerie’s Islamization chiefly because of his rash decision to release all inmates on the day of his legal revolution, including incorrigible jailbirds (Zein 1989, 199). The Trek Inward: Why Did the Judiciary Lose to Nimerie? It is perhaps the time and place to reflect on why the Judiciary lost to Nimerie. Better still, it is worth asking why it lost its common law tradition and dualism to sharia. The reason I prefer the second reformulation of the question is that although Nimerie was ousted in 1985 as a result of a revolution in which the judges played an important part, Islamic law remains the law of the land. The question might not have arisen had I adopted, without qualification, the instrumental explanation of Nimerie’s Islamization, which sees it exclusively as a tool of power. In its emphasis on the uncontrollable power of Nimerie, the instrumental explanation makes the vulnerability of the Judiciary, the theme that I will treat here, a moot point. To avoid addressing the vulnerability of the Judiciary by sheer hindsight I will use the criticism of the Republicans of Taha of the institution in the period under review. This criticism provides us with a viewpoint aired at the time that will enable us to speculate how the Judiciary could have accommodated the public discontent with its performance, and preempted Nimerie’s wrath. The Republicans wanted the Judiciary to reflect critically on its work and reform itself before turning political and oppositional to the state. Understandably, this oppositional stance did not sit well with the Republicans who had maintained an enduring, albeit discerning, alliance with Nimerie until the two tragically parted ways in 1983 as it will be described in the following chapter. Unlike judges, who blamed solely the government for the slowness of the wheels of justice, the Republicans believed the judges were not without blame. Although they sympathized with the judges’ concerns, the Republicans

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viewed the judges’ strike for raises in 1981 as wrong because it could have deepened the dependence of the Judiciary on the government. Instead, the judges, according to the Republicans, should have asked for the financial autonomy of their institution by all legal means worthy of judges. Strikes, in the Republican way of thinking, do not look good on furnishers of justice (RP, February 1981, 7). A statement published by the Republicans in 1981 is replete with elements of the prevailing popular rage for justice at the time. The statement wanted the Judiciary to interrogate itself better than it had been doing. The slowness of the process of law, the Republicans argued, was the responsibility of the judges to a large extent. Judges came late to courts, slowed down hearings, adjourned decisions, and left their stations earlier than they should have done. Worse, the Republicans continued to say, some of them showed disrespect to defendants, plaintiffs, and witnesses. Additionally, the Republicans presented the status of the backlog in deciding cases for the year 1980, and the numbers could not have reflected well on the judges. The Republicans concluded that the delay in deciding cases caused average citizens to lose confidence in the system for its failure to deliver ‘instantaneous justice:’ echoing Nimerie’s political phrase and foreshadowing his statistical stunts (RP, February 1981, 7, 14). Judges, according to the Republicans, were not powerless. They could have resolutely fought against the violation of the due process, and for replenishing the coffers of the Judiciary to meet the needs of prompt summons, follow-up of cases, and the provision of copies of the basic laws of the land ‘whose lack had caused judges to rely on their memories, or seek the help of advocates who are biased at least in the eyes of one party or the other to the dispute’ (RP, February 1981, 8). Irrespective of the politics of the Republicans, their negative views of the Judiciary, and the alternative ways they proposed to alleviate the crisis of justice, they were apparently reflecting a generalized state of disenchantment with this branch of government. In the conflict between Nimerie and the Judiciary the latter proved to be its worst enemy. Whereas Nimerie had zeroed in on the delay in delivering justice, an issue that resonated with the public, the judiciary, both at the level of the judges’ union and that of its leadership, was unable to put together a case in terms understood by the people. Articulating its grievances in an excessively politicized, professionalized, and self-interested terms did not speak to a public that had been oppressed by the horrors of a bāṭil economy.

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Judges maintained all along that the breakdown in the administration of justice was a consequence of the violation of the independence of the Judiciary. Chief among their complaints in this regard was that the government had been bypassing the Judiciary by creating a parallel one in the form of security tribunals. In this secondary judiciary, the concept of security, according to the judges, had been stretched to overlap with crimes punishable by the existing civil and criminal codes. Judges, however, were not of one mind on this critical issue. Some senior judges, either defended, or presided over, security tribunals, persuaded by their rationale of speed and efficiency. The case the Judiciary selected to flex its muscle against the security tribunals was an unfortunate one: The Sudan Government v. SergeantMajor Nasr Abd al-Rahman, 1974. The case was heard at the time by a military tribunal under the Administrative and Political Corruption Act, 1969. The defendant appealed to the High Court on May 16, 1974 to refer his case to an ordinary court of law. Rightly, but rather vindictively, the High Court, indisposed to the very concept of military tribunals, ruled for the defendant by deciding that neither the Act nor the tribunal was constitutional. As a result, the case was referred to a regular criminal court. On February 8, 1975, this criminal court charged the defendant under the Sudan Penal Code. Unarguably, the Judiciary won this procedural battle against the secondary judiciary of the executive branch of government, and restored a stray case to its fold. The Judiciary, however, could not have chosen a worse case to assert its independence. The handling of The Sudan Government v. SergeantMajor Nasr Abd al-Rahman shocked the public sense of justice like none other. The drama of the court: the charges; the dragging out of a decision; the incessant pleas and endless adjournments, all provided the public a window into a dysfunctional justice system. The trial showcased the power of money, lawyers’ manipulative eloquence, and judges’ complacency. This agonizing court drama caused people to reflect and question a system they had taken for granted before. The story went like this: Sergeant-Major Nasr was charged for illegal possession of 156 plots of a government housing project in Omdurman city, and was tried before a criminal court. Dissatisfied perhaps with the slowness of the court, and to curry favor with the public in its early leftist populist phase (1969–1971), Nimerie’s government referred the case to a military tribunal to try the defendant under the Punishment of Administrative and Political Corruption, 1969. This did not speed up the decision. In the first session on October 23, 1972, the defendant

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lawyers made an insanity plea that was not acceptable to the psychologist. Insanity was again pleaded for the defendant before appearing for the next session on March 25, 1973. On the turning down of the plea, the lawyer withdrew his case, and the court adjourned. The new lawyers hired by the defendant asked for time to go over the case. The military court adjourned once more because the defendant excused himself on grounds of sickness. The psychologist again determined that the defendant was fit to be tried. The defense counsel continued to ask for time to review the case. On April 21, 1974, in the court session set to hear the prosecution, the counsel contested the constitutionality of the law at issue, and appealed to the High Court, which agreed with them as mentioned earlier. Nasr’s lawyers again petitioned the High Court to dismiss the charges. The High Court overturned the submission. To cut a long story short, Nasr and his lawyers continued playing delay tactics with the criminal court from 1975 continuously until 1984 when the case was again picked up by the secondary judiciary for instantaneous justice (al-Sahafa 20 December 1984). The last thing heard about the case was in 1988 when the file of the case was reported missing by the Attorney-General who asked that the matter be investigated (al-Ayyam 11 November 1988). The case of the judges against Nimerie was further hurt by unwisely dragging in the civil/sharia feud to explain the disarray in the Judiciary. Both the civil judges and qadis attributed the Judiciary crisis to the processes of amalgamation in 1972 (The Sudan Judiciary 1974). The civil judges never ceased pointing fingers at the amalgamation of the court system as the cause of the slowness of deciding cases in the Judiciary (Sudanow, September 1980).34 They used the official and public scrutiny of the crisis of the Judiciary to protest against the amalgamation of the civil and sharia divisions in 1972 and 1982. In our conclusion of this book we will elaborate further on this feud. Suffice it to say here that the public could not have been persuaded that this arcane feud had been the reason why the wheels of justice ground to a halt.

34 By investing in training of judges, junior civil judges argued that the amalgamation of the Judiciary increased the running cost of the institution. Training, they contended, required the removal of judges resulting in the worsening of the backlog. A senior civil judge, however, contradicted this explanation; rather than increasing costs, he said, the amalgamation, by which a judges can decide on civil as well as sharia cases, was a costeffective deployment of the limited number of judges (Sudanow, September 1980).

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The case of the judges was also considerably hurt by the public realization that they had been more concerned with their income rather than fixing the machinery of justice. The Republicans voiced this public criticism by blaming the judges for focusing on raises and entitlements and failing to reckon with their own shortcomings (RP, February 1981, 8). No doubt, the judges were professionally concerned with the backlog of cases. Nonetheless, they glossed this burning issue under a broad category of grievances they called ‘conditions of work.’ As the story unfolded, these conditions came to be interpreted by both Nimerie and the public at large as mere pleas for raises of judges’ salaries and accruing of entitlements. The leadership of the Judiciary had been ceaselessly requesting Nimerie for these raises and benefits. Their standard argument, of course, was to provide judges with the financial security indispensable for a dispenser of justice. In his capacity as the Chairman of the HJC, the governing body of the Judiciary, Nimerie was gracious and accommodating. He had been amending the Number of Judges and Salaries of the Judiciary Act, 1976, by Presidential Orders, and on annual basis, to raise judges’ salaries and benefits.35 As beneficiaries of these Presidential Orders, the judges never questioned their constitutionality or the power they would ultimately have on the workings of the Judiciary. It was left to an attorney of the Attorney-General Office to blow the whistle. The whistle-blower advised against amending a constitutional act by Presidential Orders lest the executive, having had this authority on the well being of the judges, might compromise the independence of the Judiciary.36 On the advice of the HJC, Nimerie increased the judges’ incomes by three means. First, he increased the number of judges on the well-paid High and Appeal courts allowing for further promotions down the ladder. For example, the High Court that began with nineteen judges in 1977 rose to twenty-six judges in 1981. Second, he introduced a taxexempt allowance that would have augmented existing salaries as well as retirement benefits. Allowance, by rule, did not count toward retirement fund. Between 1976 and 1982, this allowance jumped from 2400/9200 and 250/450 Sudanese pounds, to 126000/9000 and 1920/1200 Sudanese pounds per annum for the Chief Justice and second class magistrates, 35

Attorney-General Office/Legislation/240–3, the Number of Judges and Salaries of the Judiciary Act, 1976. 36 Attorney-General Office/Legislation/240–3, from ʿAbd al-Hafiz ʿAbd al-ʿAziz to al-Subaʿī, Director of the Law Drafting Department of the Attorney-General Office.

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the lowest rung in judges’ rank, respectively.37 Third, he raised salaries. Between 1976 and 1982, salaries jumped from 3800 and 750/1100 Sudanese pounds to 8249 and 1797/2696 Sudanese pounds for the Chief Justice and the second-class magistrate, respectively.38 This engrossment of judges by salary raises played into the hands of Nimerie who was out to get the Judiciary. To shame the striking judges in June 1983, he offered them money and benefits beyond their dreams. As a result, the judges’ salaries skyrocketed to a degree coveted by other professionals. Copycat union actions were undertaken by professionals such as medical doctors to attain the pay the judiciary had secured from the government (Khalid 1985, 242–243). In discrediting judges with monetary gains, Nimerie might have intended to show the kind of concern for the crisis in justice the judges had entertained. But he made the judges’ strike appear as a self-interested act (Zein 1989, 119–120). Conditions of service, of course, comprised more than just salaries and entitlement. Judges blamed the government for shortage of funds that led to lack of buildings, stationery, and funds to train court clerks, and to modernize archiving and documentation (Sudanow, September 1980). The havoc this shortage wrought on the judiciary was huge. ‘Many a court has turned into rubble and debris,’ writes Khalid with his flair to the dramatic, ‘court documents, a record of the rights of people, were increasingly falling apart’ (1986, 38–39). Nonetheless, the judges did not make their working environment a priority recognizable by the public. Although raised in public statements issued by judges, financial support for the judicial infrastructure evaporated in the maze of promises of reform. Salaries and entitlements, on the other hand, were tangibly pursued and realized. Nimerie was seen by the public issuing Presidential Orders to increase the salaries and entitlements of the judges, even including free medical treatment, free air and rail transport of the Chief Justice and his family during their vacations.39 Given this presidential 37 The lowest sum of the two figures shown represents the allowance in case a judge occupied a government house. 38 The minimum salary was 280 Sudanese pounds in 1978 (Sudanow, July 1978). The junior judges might have felt betrayed by their seniors who had been collecting special increases and benefits. The Chief Justice’s salary jumped to 11,000 Sudanese pounds in 1982. For retirement deductions, his salary was represented as 76,000 Sudanese pounds. Further, the judges of appeal were given a taxable special allowance of 1,200 Sudanese pounds (The Attorney-General Office, 240–3, the Number of Judges and Salaries of the Judiciary Act, 1976). 39 40. The Attorney-General Office/Legislation, 240–3, the Number of Judges and Salaries of the Judiciary Act, 1976.

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generosity, it is somewhat hard to believe that the Judiciary leadership could have failed to talk Nimerie into buying the computers whose lack, as claimed by the Chief Justice, hampered the modernization of the archiving of judicial records (Sudanow, September 1980). Conflating judges’ salary concerns and enthusiasm for the independence of the Judiciary remained with the judges even during the democratic era that followed the overthrow of Nimerie in 1985. Although this period falls outside the timeframe of this book, it sheds more light on how judges habitually brought their monetary concerns to bear on the independence of the Judiciary. In 1988, the government equalized the salaries of the officers of the armed force with the well-paid Judiciary. In protest, the judges tendered their resignation and stopped work. They also protested the slowness of the HJC approving their clothing and book allowances authorized by the SCS (al-Ayyam 18 December1988). Becoming conscious of the harm these crass monetary concerns could cause them in a volatile time of general economic distress, the judges then retracted their earlier statement on the salary anxieties that had led them to resign.40 Instead, they explained their union action by what they had perceived as moves on the part of the executive to undermine the autonomy of the Judiciary. In a face-saving move, the judges protested a range of government shortcomings that compromised their safety on the job: the worsening living conditions of judges in Darfur region coupled by political unrest that posed real threat to the lives of judges; contempt of court by a police commissioner in Darfur; arrest of judges in southern Sudan, a site of perpetual civil war; insult to the Judiciary from the minister of the Council of Ministers’ Affairs (Al-Ayyam 21 December 1988). In the ensuing conflict with the executive, the judges never returned in their public statements to these grievances pertaining to conditions of work. After their PR stunt, in which they directed the public attention to other than the judge’ salary raises, the judges focused solely on the monetary issue and the constitutional procedures leading to the alterations of their salaries. Judges’ salaries, according to the Judiciary 40

In a letter to the editor, a reader took the press to task for supporting what he perceived as the judges’ exclusivity by which they evaluated their work as more worthy than other professions. Although he would support their advocacy to maintain the independence of the judiciary, he would find it difficult to see how this independence could have been affected by the removal of discrepancies marring the salary scale in the country (al-Ayyam 3 February 1989).

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Authority Act, 1983, could only be reviewed by the SCS in the light of recommendations from the HJC. Further, the Act denied the Legislative Assembly of even approving the budget of the Judiciary (Al-Ayyam 3 and 4 January 1989). The Judiciary saw equalizing other state employees with judges’ salaries as an infringement of these constitutional safeguards surrounding the income of its personnel. The Prime Minister was astounded that the judges would be upset by the removal of a discrepancy in the scale of salaries that did not touch their own incomes (Al-Ayyam 25 December 1988). Support for the judges’ stand for the independence of the Judiciary, defined entirely in monetary terms, came especially from the attorneys of the Attorney-General Office, who enjoyed the judges’ pay scale, and the Bar (Al-Ayyam 5 January 1989). Yielding to this pressure, the SCS issued a statement committing itself to the constitutional procedures governing judges’ salaries. Resignations were subsequently withdrawn, and judges resumed work (Al-Ayyam 8 January 1989). The Potential for Reform of an Inward-Looking Judiciary The changing terms of the discourse about the due process of law in the 1970s and 1980s should have awoken the Judiciary to its internal predicaments serving a nation from within a colonial structure. The Judiciary had been advised by sagacious, departing colonial judges and perceptive legal scholars to reinvent itself in the independence era. Instead, the Judiciary, whose back had been to the wall, attacked by different, belligerent, unpopular regimes of the postcolony, turned defensive and oppositional. The sight of the judges, clad in their black robes, in front of the imposing Judiciary building on University Avenue in downtown Khartoum heralded the demise of junta government in 1964 and 1985. Confrontation caused the Judiciary to miss out on nurturing the habit of looking inward in order to come to grips with its shortcomings in other than purely political, or rather governmental terms. Shrouded in self-pity, the Judiciary failed to engage in self-irony.41

41 Unlike the generality of the judges, the leadership of the Judiciary laid the blame for the incompetence of their institution on external rather than internal factors. It was claimed that summons for witnesses during the agricultural working seasons just fell on deaf ears. The chief Justice complained to Sudanow that his attempts to modernize the Judiciary were aborted. His repeated submissions for computers to handle land

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Had the Judiciary developed this habit of introspection, it could have seen that some of its most crucial problems were structural, that is to say, pertaining to the origin and intra relations of the parts of the justice system. Unarguably, money for the smooth running of the institution was in short supply during Nimerie’s era, but the little that had been dispensed could have been utilized effectively had the Judiciary taken the lead in reforming itself in a professional manner. Concerned legal scholars pointed to avenues for such reform. Structurally, they urged the Judiciary to switch from being a colonial legal department administering justice to subjects, to deliver justice to citizens of the new nation. This would entail, as suggested by these scholars, shedding the burden of the legislative function that had fallen to it by default. Further, it was advised, and variously assisted, to keep abreast of the developments and techniques of the common law in its original home—England, and build up a national archive of case reporting to adjust common law to the cultures of Sudanese litigation. Scholars envisioned a judiciary for the citizens of the free nation as shedding its colonial tradition of being the legal department of the government. In 1956, the Judiciary, according to Egon Guttmann’s view, still savored of a government department in which the superior civil servants exercised supervisory powers over those employed by them. This was especially emphasized, he noted, in criminal procedure. Senior judges, he continued to say, busied themselves confirming the findings and sentences of lesser courts (Guttmann 1956, 44). Guttmann also points to the need for the Judiciary to address issues of performance and promotion of judges, which had been a divisive preoccupation as noted earlier. He wisely argued that promotion on seniority basis was an element that tended to perpetuate the Judiciary as a civil servants hierarchy. Judges, he went on to say, had to stop thinking of themselves as members of a service whose criteria for promotion and advancement were seniority rather than ability. To this effect, he said, recruitment from outside the service should be encouraged (1956, 45). The Judiciary was not unaware of this drawback in its work. In a politically optimistic climate after the 1964 Revolution, the Chief Justice issued a circular introducing ‘quantity and quality of output’ as the single criterion for the promotion of judges instead of seniority and

registration and filing of cases went unanswered by the Ministry of Finance (Sudanow, September 1980).

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academic qualifications (Thompson 1965, 506). The instructions were unheeded. The feud between the judges and qadis that raged over the seniority list of the amalgamated Judiciary, which will be discussed in our conclusion, bears out our assertion. The Judiciary was also alerted to other shortcomings within the system that might undermine its tradition of creatively working within the common law. Cliff Thompson suggested that ‘the fate of the common law heritage in the Sudan cannot yet be foretold’ unless access to the relevant legal materials was guaranteed (1965, 475).42 This access problem was highlighted by the increase in court numbers after 1964 (Khalid 1986, 26). Indexes relating new legislation to the laws were left to conscientious legal officers and had never been institutionalized until 1966 (Thompson 1965, 480–481). Also, legislative supplements, that were in short supply, disrupted provincial courts. The courts in the capital, that relied on the closeness of personal contact, weathered the problem of access to common law material (1965, 481). However, the ‘wilderness of ungazetted subordinate legislation’ was difficult to obtain even in the capital forcing courts to delay in the dispatch of their work (1965, 481). The Court of Appeal, for example, had to excuse itself for delay because of its inability to obtain a certain municipal local order. It also needed the intervention of the British Embassy in 1963 to ameliorate the situation by providing a grant ‘to supply a specified English law treatise to all judicial headquarters in Sudan’ (1965, 481). The Judiciary had also been forewarned that its law could lag behind the evolution of both its foreign sources and the society it served. The courts, Thompson maintains, were not keeping up with the successive amendments of the English statutes after which they had modeled their legislation. Uncertainties resulting from trailing behind English law had their unfortunate practical consequences. The expansion of economy, he argues, might have rested on resolving these uncertainties. For example, the Sudan Bill of Exchange Ordinance of 1914, modeled after an English Act of 1882, remained in effect oblivious to the many changes the English Act had undergone until it was amended substantially in 1957.

42 Unlike others who attributed these uncertainties exclusively to invasive political designs of national identity, Thompson, while lucidly conscious of these political intrusions (1965, 507–511), describes the dangers to the system that could arise from within. He laments that access to the relevant legal materials, which is a precondition for continuing with the common law practice, was thwarted in Sudan.

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The Sudanese business communities agreed among themselves not to regard the change as applicable (1965, 497). To add insult to injury, the professional class, few in number as it was, was distracted by political missions away from working diligently on the challenge of the reception of common law for an independent nation. Thompson noted the migration of law teachers and judges to politics after the 1964 Revolution.43 When it was thought that the law school of the University of Khartoum was substantially Sudanized, he noted that three of the five senior Sudanese on the faculty left as a result of the Revolution (1965, 505). The pressure of routine business on a small law school staff, he stated, allowed them no time to keep up with what went on in England (1965, 493). Politics came in with a price. Involvement of judges in politics embittered some of them with serious consequences for the coherence of the legal profession. After his resignation from the Judiciary in 1966, an embittered Awadalla, the Chief Justice, reappeared as the civilian head of Nimerie’s coup. His sacking of thirteen judges and qadis of very good standing in the profession and in full view of the public made future purging of judges for political reasons a common executive practice. The purging damaged the esprit de corps of the common law elites whose strength lay in the ‘factor of the unexpressed consciousness of legal training and affinity’ (Guttmann 1957, 413).44

43

Thompson details these missions that took the few legal professionals into politics away from their legal agenda. He mentions that al-Turabi’s experiment of teaching law in Arabic met an untimely death for he had left the University of Khartoum to lead the Muslim Brotherhood (1965, 503). Muhammad Salih Omer, a sharia professor of Western training, interrupted his research in Arab civil codes to become a minister in the cabinet of 1964 Revolution representing the Muslim Brotherhood (1965, 498). Omer died tragically in 1970 fighting among the Ansar of the Mahdi’s Umma Party against President Nimerie’s regime in its leftist phase. Abel Alier, perhaps the only high-ranking southern Sudanese in the Judiciary, resigned to lead a party after attending a training course at Yale University (McPhee 1966, 132–133). 44 Mustafa, the Dean of the Faculty of Law, was sacked by Nimerie’s regime in 1969 accused of harboring ‘anti-revolutionary’ sentiment for having as a student identified with the Muslim Brotherhood. After a teaching career in Nigeria and Ethiopia, he came back to Sudan to be appointed the Attorney-General in 1973. In this capacity, he abrogated the laws that led to his dismissal and restored the common law of the pre-1969 era. Although he is one of the earliest and best critics of the common law tradition in Sudan (1971), Mustafa might have endorsed it as an Attorney-Genera as the lesser of the two evils, the other being the Civil Code of 1971. For a solid scholarly attack on this code see his (1973).

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Yet, the Judiciary proved capable of implementing internal reform when it succeeded in identifying its shortcomings and mobilizing those interested in its work to overcome them. Its accomplishment in case reporting, approached with this sense of purpose and support, is enviable. Judges had been calling for the creation of a reporting system in order to mould a law unique to Sudan since the 1940s (Thompson 1965, 482). Judge Ahmad M. Atabani regretted as early as 1943 the absence of official reporting, which would at least secure uniformity. Similarly, Judge Tewfik Cotran lamented the situation saying, ‘[u]nfortunately the decisions of the Sudan courts are few. Until one or two years ago there was no regular system of law reporting. I do, however, from memory remember a few cases.’45 Judge Osman El Tayeb, on the other hand, called for the collection of the pieces of land law based on customary practices (Thompson 1965, 483). Case reporting was exceptionally successful compared to providing access to legislative sources thanks to the efforts of the law faculty at the University of Khartoum, led by Dean Zaki Mustafa. The Sudan Law Project of 1961, a co-operative venture of the University of Khartoum, the Judiciary, the Attorney-General Office, and Ford Foundation, succeeded in documenting the vast supply of pre-1956 cases. In 1957, the government provided the money for post-1956 cases urged by the Chief Justice, whose British predecessor, Mr. W.O.B. Lindsay, had impressed upon him the need for a report journal at a stage of the development of the law in Sudan coinciding with the departure of the British members of the Judiciary (Thompson 1965, 481–482). A full-time editor of the Sudan Law Journal and Report (SLJR), which started publishing in 1958, was secured through the expertise provided by the Massachusetts Institute of Technology, also with a grant from Ford Foundation (1965, 483).46 The project had run into some unnecessary difficulties though. The Sudanese judge who took over the editorship of the SLJR in 1965 found his full-time court business conflicting with the schedule of the Journal (1965, 484). Annual appropriation for the reports was far from

45 Admininstrax of Costas Zia v. German and Swiss Engineering and Contracting Company and Phoneix Assurance Company, the Sudan Law Journal and Reports, 1960, 142–150. 46 For an intimate account of this achievement see the piece written by John McPhee in the New Yorker (March 5, 1966) about the life of Brewester in Sudan as a fellow of the Massachusetts Institute of Technology, and an official of the Sudanese Judiciary in charge of law reporting between 1962 and 1964.

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certain considering the rising animosities between the executive and the Judiciary after the 1965 ruling for the Communist Party against the government. Further, judges were not motivated enough to personally commit themselves to the project. Despite instructions from the Chief Justice that judgments from provincial courts be sent to the Journal, the editor found it necessary to go personally to the courts to ensure full coverage of reportable cases (1965, 487). Although the reporting and publishing of cases became a routine job in the Judiciary, the legal quality of the cases reported deteriorated. Distanced from the sources of the common law, judges were investing less in writing their decisions. This laxity was detrimental in a country in which the Judiciary had increasingly taken an active role in developing the general territorial law (Thompson 1965, 497). Judges saw their job done by citing a foreign authority supportive of their rulings. An English case, Thompson says, was cited in a cattle trespass case in 1961 instead of ‘creatively producing an appropriate rule.’ This decision, according to Thompson, could have taken into consideration the unique conflict at the time between nomads defending their traditional grazing rights against a rising class of investors in mechanized farming leasing these grazing lands from the government (1965, 494–495). Thompson points to this legal laziness in two cases decided by a Court of Appeal based on English contract law ‘without discussion in a judgment of less than a page’ (1965, 494). With the progressive switching to Arabic in writing courts’ opinions, some judges took it as an excuse to ‘avoid discussing legal issues’ (1965, 503). The Judiciary was also advised to give up its original legislative function conferred by colonial laws. In concluding a perceptive article reviewing a court decision on rent contracts, Akolawin, picking up from W.L. Twining (1957), raised the question whether the courts should continue as agents of reception of foreign law in the Sudan (1968, 257–258). The Civil Justice Ordinance, 1929, Section 9, conferred on the courts a legislative function wider than ordinary judicial law making. Akolawin criticizes this section of the Ordinance as ‘an offshoot of colonialism in the field of law. It was intended as a residual source of law.’ He is particularly critical of the section for contemplating that judges would fill gaps within a legal system going way beyond what they ordinarily do, that is, legislating to fill small gaps by filling in the spaces in the existing laws (1968, 258). Akolawin called in no uncertain terms for the Judiciary to shed its broad legislative function that it inherited from colonialism. In devel-

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oped legal systems, judges, using a similar delegation as Section 9, he argued, filled in the gaps in accordance with the general principles of the legal system in question. The section in Sudan made the court theoretically shoulder a double task. The judge had first to examine foreign legal systems, in order to find the principles that should be applied, and adopt them as far as they could be adapted to the conditions in the Sudan. This is a job for the legislature, Akolawin argues. The benign, exalted ‘conservatism’ of courts, dictated by caution and professionalism, Akolawin maintains, makes courts universally unsuited as agents of developing law to meet new social and economic conditions. ‘The time has come,’ according to Akolawin, when ‘the courts should be relieved of the onerous responsibility which they are not qualified to perform’ (1968, 259). He further says, ‘It has become imperative that the legislature must step in and through positive wholesale legislation lift the burden from the courts.’ Being a representative body, the legislature, he argues, could best express the sense of the nation as to the types of legislation or law to be enacted or adopted in the Sudan (1968, 261). Legislation, however, continued to be the job of the Judiciary by default. Successive, enduring dictatorships in the country dulled, in Thompson’s words, legislative draftsmen from taking the initiative in filling the gaps in Sudanese law (Thompson 1965, 493). As a result, the country had to go through a ceaseless war of changing codes and laws sold each time by an entrenched executive branch of the government as a ‘legal revolution.’ Meager resources did not prevent the Judiciary from embarking occasionally on restructuring itself to improve its performance. The repeal of the Judiciary Authority Act, 1973, that organized the institution in a wasteful manner, is a case in point for what the Judiciary could have done to come to grips with the backlog. After reviewing a number of cases shuttling between the various circuits of the Judiciary, Salman points to a systemic delay in the Judiciary under the Judiciary Authority Act, 1973. Salman blamed the seven-tiered court hierarchy laid down by the Act for causing considerable delay in deciding cases. ‘It became clear shortly after the promulgation of the Act,’ he says, ‘that the proceeding of cases through most of those levels is a real handicap to administration of justice, and a primary cause of delay and inconvenience’ (1977, 176–177). Parties, he said, were inconvenienced by delay, expense, and frustration because of the inconsistencies (Salman 1977, 174). Having concluded that the 1973 Act was largely at fault, the Judiciary sponsored and passed the

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Civil Procedure Act, 1974, which streamlined the Judiciary tier to remove the accumulation of cases caught up in the cracks of the system (1977, 177–183). Conclusion Nimerie’s Islamism was a more aggressive form of working on the seam in the Judiciary than what al-Azhari did. Stormed by al-Azhari’s Islamism, the Judiciary was unified in name but remained separate and equal for all purposes. An economy of bāṭil in the 1970s and 1980s made the delivery of justice a priority in the discourse and practice of Muslims shaken by the spiritual terror of an economy of greed and deception. A popular call for swift delivery of justice pitted the people, whose rage for justice made Nimerie fall back on a form of prompt justice derived from a punitive sharia, against an underbudgeted judiciary set in its common law, slow processing of cases. Having exhausted all forms of political legitimacy from socialism, to Arab nationalism, to technocrats and development, Nimerie jumped on the bandwagon of this popular rage for justice. Nimerie’s Islamism has been viewed as something a power-hungry leader had concocted out of his evil mind. Yet, his Islamism was more often than not a co-option of the capacity of the Muslim Sudanese to judge their politics religiously. He was more often than not allying himself to religiousness, an attitude of the spirit in soul-searching times, and racing against an Islamic opposition deriving strength from the same religiousness, which came very close to ousting him. The case of Tūtū Kūra, a popular government-run betting system on soccer matches that began operations in the early years of Nimerie’s reign, will illustrate this point. With a change of heart due to a rising religiousness, Tūtū Kūra was increasingly viewed as a form of gambling sanctioned by Islam. In August 1973, the Muslim Brotherhood led the students and the populace in huge demonstrations against the regime. In these demonstration people attacked Tūtū Kūra kiosks protesting the energy and fantasies people invested in this ḥ aram practice that was of one piece with the bāṭil economy in place. Religious sensibilities were offended by this secular religion. In September 1975, a coup against Nimerie that lived long enough to broadcast its first statement, dissolved the Tūtū Kūra, and called for the restoration of Omdurman Islamic University, which the leftist alliance

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during the early years of Nimerie had reduced to a college of Arabic and Islamic Sciences (The Sudan Communist Party 1988, 212). In his untiring polemic against the clerics, Taha chastised the clerics for not protesting the use of Tūtū Kūra money to finance building mosques (RP, July 1975b, 27). It would have been fool-hardy of Nimerie had he ignored the negative messages sent concerning Tūtū Kūra. He finally dismantled the state-run Tūtū Kūra in the name of Islam.

CHAPTER FIVE

THE QADIS AND MAHMOUD M. TAHA: TOWARD AN ECONOMY OF VENDETTA AND MARTYRDOM I will use the rivalry of the two court systems, civil and sharia, to better understand the miḥ na (persecution, trial, and execution) of Mahmoud M. Taha (1909/11–1985), the modernist Islamic reformer and the founder of the Republican Party (1945), who was hanged by Nimerie’s regime (1969–1985) for apostasy from Islam. The chapter will argue that Taha’s killing in 1985 was the delayed execution of a ruling passed by the Sharia High Court in 1968 indicting him for apostasy, which could have meant his death had Islam been the law of the land. Taha survived the ruling because the jurisdiction of the court issuing it, inherited from colonial times, did not extend to matters of belief and politics. This chapter describes how the qadis and Taha had been at loggerheads since the 1968 ruling. The qadis continued a national and Pan-Islamic campaign to incapacitate him, while Taha, on the other hand, never ceased rubbing in the colonial origins of the political impotence of sharia and the qadis. I will examine the political alliances and energies that made Taha’s delayed execution possible in 1985. Who Killed Taha? In identifying the culprits for the killing of Taha just before, and immediately after the execution, a finger was pointed to al-Turabi’s Muslim Brotherhood as part of a pack. This pack comprised Nimerie and his palace councillors, collectively known in certain writings as the ‘neoSufist’1 (Waraq 1989, 215), the qadis of Nimerie’s instantaneous justice

1 Neo-Sufism refers to the Sufi brotherhoods that supported President Nimerie who is believed to have been spiritually impoverished after his bloody break with his communist allies in 1971. The leadership, or influential agents of these brotherhoods, began to come from the elite class and thus were well versed in urban politics. The liaison between these Sufi groups and Nimerie was officered by cadres such al-Nayal Abu Qurun and ʿAwad al-Jeed M. Ahmad, a relatively young judge and attorney, respectively, whom Nimerie entrusted with Islamizing the laws of Sudan overnight. Abu Qurun specifically comes from a minor Sufi fraternity from the outskirts of Khartoum

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we already discussed in the previous chapter, and Saudi Islamic orthodoxy (Hamad 1995; Khalid 1986; an-Naʿim 1987, 42; Shaʿrani 1988; RP, 1985).2 Al-Turabi’s Muslim Brotherhood was variously indicted for creating a state of religious intolerance that led to the killing, for the alleged membership of the qadis in the Brotherhood, and for its politicking and demonstrations cheerleading the executioners (Hamad 1995; RP 1985, 6–7, 22).3 Undoubtedly, the Brotherhood’s cheerleading was grotesque. An eyewitness heard them shout, ‘Hubal [the senior idol in Mecca before the coming of Islam] has fallen’ (Adam 1987; Latif 1987). Even al-Turabi is quoted as saying that Taha was a dhabḥun ʿaẓīm (a magnificent kill)’ (Khalid 1986, 113). The echo of this gross insensitivity will cast its haunting shadow on al-Turabi’s movement for years to come. In recent literature, however, the Muslim Brotherhood is increasingly taking all the heat for the death of Taha. Writers of liberal and leftist leanings, who have an axe to grind with it, have been laying special emphasis on its role in the killing (Ibrahim 1991, 68, 92; Mahmoud 1995). In the protracted and tough fight against General al-Bashir’s regime (1989–), allegedly masterminded and run by the Brotherhood, these writers historicize the ẓalāmī (dark, fascist) nature of the regime by inordinately focusing on the role of the Brotherhood in murdering Taha to the exclusion of other killers. A genre of annual tributes written on the day of the execution of Taha, has emerged in which a reflection on the life of Taha leads ipso facto to the condemnation of the current government and the evil ‘Turabian mind’ behind it (Mahmoud 1995; Hamad 1995).

whose religious ritual festivities became forums for some of Nimerie’s boldest religious political moves (Khalid 1986, 110). 2 Mahmud al-Shaʿarani, an admirer of Taha, even blamed the Republicans for the death of their leader for their silly belief that he was the Mohammadan Messiah who would never die (al-Watan 19 October 1988). 3 On September 17, 1979 Taha refused an invitation to talk on a panel organized by the University of Khartoum Student Union controlled by the Muslim Brotherhood for almost the whole decade of the 1970s and the early 1980s. He berated them for having created a very negative environment for the discussion of his version of Islamic reform in the university. He reminded them that one of their mentors was talking to them a week before their invitation and was telling them of Taha’s apostasy. ‘You were jubilant, clapping and laughing,’ he added. He went on to say that his previous talks convinced him that discussions in the oppressive climate the Brotherhood had created, was beneath the level one would have expected in a university setting where competing perspectives should be fostered (al-Ray al-Akhar, January 1997).

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This overemphasis on the role of the Brotherhood in the death of Taha is, to say the least, superstitious. Blame is heaped on it not to match the actual guilt, but to express fear and anger that the Brotherhood is still around, alive and well. Had it disappeared from the political scene like Nimerie and his entourage, it could have slid by, blamed just for what it had actually done, not for what its mere survival has made it capable of doing back then. In contrast, this chapter will argue that the qadis of the Sharia Division of the Judiciary had a more consistent grudge to settle with Taha than the Muslim Brotherhood. Although the Brotherhood is, of course, implicated in the death of Taha, it is a culprit of a lesser, yet demeaning, charge. Abdalwahab el-Affendi Osman, an intellectual of the Brotherhood, recognizes the damage the execution of Taha brought to his party although the role of the Brotherhood in ‘the bizarre events that led to the man’s death was not at all central’ (1989, 279). He continues: The trial of Taha, like the whole sharia episode, took Ikhwan [the Brotherhood] unaware.4 The line which Ikhwan [the Muslim Brotherhood] adopted vis-à-vis the Republicans was to treat them as harmless, if heretic, eccentrics. When Taha was condemned for apostasy by a sharia court in 1968, the Brotherhood leaders dismissed the issue as irrelevant. [Al-]Turabi consistently counseled the rank and file not to pay undue attention to the Republicans. . . .5 However, just as happened with the promulgation of sharia laws, Ikhwan [the Muslim Brotherhood] became most enthusiastic once Taha was condemned by the courts and ardently justified his punishment (1989, 470).

4 President Nimerie hid his Islamization plan from the Brotherhood whose leader, al-Turabi, the Attorney-General, was chairing the Committee of Revision of Laws to Conform to the Principles of Sharia. This Committee, entrusted for the gradual introduction of Islam as the sole legal source of legislation, had been in session since 1977. None of its draft laws saw the light of day in the Constituent Assembly. In May 1983, Nimerie removed al-Turabi from his post as Attorney-General and appointed him as councilor for foreign affairs. His idleness on the job made him joke that the President’s councilors received more councils than they were allowed to give. To isolate al-Turabi from his specific Islamic revolution of 1983, Nimerie instructed his inner group drafting the Islamic laws not to communicate the matter at all with al-Turabi (Osman 1989, 267). 5 Sadiq A. ʿAbd al-Majid, the second man in the Brotherhood in 1968, was not impressed by the news coming from the Sharia High Court against Taha. He stated to al-Mithaq al-Islami, the mouthpiece of the Brotherhood, that Islam could have been better served if the court had addressed Islamizing the country instead of focusing on the marginal issue of Taha’s apostasy. The editor of the paper thought Taha did not deserve the attention given. His odd views should be exposed where and when he decided to propagate them (24 November 1968).

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Osman’s appraisal of the role of the Brotherhood in the death of Taha is borne out by the conflicting, confusing, face-saving statements al-Turabi has given about the matter. He is reported to have said in Geneva just before the execution that the trial was unjustified, and that Taha should be treated as an eccentric (Khalid 1986, 113). He did return to slight Taha’s allegedly heretic ideas in his definitive book on the history of the Brotherhood by saying that although the ideas were odd, they did not provoke his movement into inordinate polemic against them (1989a, 155).6 Even as late as 1986, al-Turabi rebuked Nimerie for applying considerable pressure to kill Taha for apostasy when the court itself had indicted him for political dissention rather than for an affront against religion (al-Watan [Kuwait] 27 December 1986). Contrary to this tolerant, albeit dismissive attitude toward Taha, other statements by al-Turabi, in perhaps unfriendly interviews made with him after the 1985 downfall of Nimerie, whose regime al-Turabi had supported until its eleventh hour, are antagonistic and accusative. In one of these statements, al-Turabi describes Taha as an even worse apostate than communists (Muhammad 1993, 42). In 1991, he denied any involvement in Taha’s death ‘explaining vengefully that the man considered himself God and that he, al-Turabi, would have preferred to let God die a natural death’ (Deng 1995, 533). In an interview with al-Watan (Sudan), a paper not known for its love of the Brotherhood, al-Turabi said he had no qualms whatsoever relative to the death of Taha. As a good Muslim, whose religion informs all his judgments, he cannot entertain second thoughts on the rightful death of an unashamed apostate like Taha (30 April 1988). By ‘succumbing to the extraordinary power of obedience’ (The New York Times 22 March 1996) to Nimerie, the Brotherhood had killed by association a man that it had not liked, but never intended to kill. Nothing humiliates a movement claiming to model its activists on the Ṣaḥ āba (companions of the Prophet) more than being reduced to a bunch of cheerleaders in a cardinal issue of faith. In focusing in on the role of the Brotherhood in the execution of Taha to the exclusion of other culprits, secularists missed out on the economy of meaning embedding Taha’s trial and Nimerie’s Islamism. What concerns us here most is the secularists’ lack of interest in examin-

6 However, his Al-Ṣalāt ʿImād al-Dīn (1974/1984) was in part a refutation of Taha’s nuanced, albeit unusual, revisit to prayers in Islam (Ahmad 1990, 137; Osman 1989, 382).

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ing the guilt of the qadis in their own right. Although alluded to, qadis, as mentioned earlier, were summarily dismissed as Muslim Brothers who would march to the beat of the Brotherhood anyway. Contrary to this one-dimensional incrimination of the Muslim Brotherhood, the chapter will examine the unyielding conflict between Taha and the qadis and clerics since the first apostasy ruling against Taha in 1968 until his execution in 1985. My premise here is that Taha’s miḥ na (persecution and trial for dissent) constitutes a clear-cut case of an Islamic ‘orthodoxy’ at work. I will highlight and delineate the traditions invoked, the forces mustered, the consensus achieved, and the powers exercised for this miḥ na to take place. ‘Orthodoxy’ is used here as redefined by Asad to salvage it from those who wanted to scrap it because they found the notion rather alien to Islamic discourse and legitimation (Eickelman 1981, 213; Smith 1975, 20; Turner 1974, 62).7 Islam, as a discursive tradition, Asad argues, has a domain for orthodoxy defined as ‘a distinctive relationship—as a relationship of power’ and not merely as a body of opinion (1986, 15). Taking into account the interplay of power and orthodoxy advanced by Asad, the chapter will address the question of what made it possible to execute Taha in 1985 for the same charge his adversaries indicted him in the 1968 trial, and had failed to deliver then. Why was it necessary to try him twice? What elements of power and legitimacy arose in the two decades separating the two trials that made the 1968 sentence executable in 1985? In pursuing the power relations underlying Taha’s miḥ na, this work departs in two ways from the scholarly tradition of studying it. First, instead of incriminating the Brotherhood, or any other culprit for that matter, it will investigate the political investment in Taha’s body as it was directly involved in the political field of colonial Manichaeanism. It is hoped by this approach we will come to grips with the power relations that had immediate hold upon this body; ‘they invest it, mark it, train it, torture it, force it to carry out tasks, to perform ceremonies, to emit signs’ (Foucault 1995, 25). Second, although stupefied by the jumbled justice the Republicans had been subjected to, I will consider Taha’s execution and the forced confessions of his followers ‘less as a

7 As a consequence, they have suggested that with regard to Islam, it is better to talk of orthopraxy, the commonality of practice and ritual, rather than orthodoxy (Eickelman 1981, 204).

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consequence of legal theories than as a chapter of political economy’ (1995, 28). For public execution, argues Foucault, did not ‘re-establish justice; it reactivated power’ (1995, 49). More than an act of justice, I will argue after Foucault, that the public execution of Taha and the confessions of his followers are manifestations of force; ‘or rather, it was justice as the physical, material and awesome force of the sovereign deployed there’ (1995, 50). Taha/Qadis: Politics and Polemics Taha was born in Rufaa town on the east bank of the Blue Nile in either 1909 or 1911. He grew up as an orphan raised by his uncle. He graduated from the engineering school of Gordon Memorial College in 1936, and joined the Sudan Railways. In the 1940s, he resigned and went into private practice. He participated in the national movement and was critical of the Gordon College graduates’ movement for submitting to the designs and limitations of the dominant traditional Sufi brotherhoods such as the Ansar of the historical Mahdi of the nineteenth century and the Khatmiyya, their erstwhile political rival (Taha 1987, 2). He also criticized the national resistance leaders, prone to partisan politics, for being rabble rousers lacking a clear social philosophy to galvanize the public (ʿAbd al-Qadir 1952, 153). Disenchanted, he formed the Republican Party in 1945 whose publications reflected a strong modernist Islamic orientation, for Taha had always believed that Islam holds the key to a world muddled by capitalism and communism (Taha 1987; ʿAbd al-Qadir 1952, 153). After a period of reflection and discussion of the national issues at hand, the party began engaging in popular action against colonialism. Members of the party would address people in mosques and cafes, and distribute leaflets. Taha was imprisoned twice in 1946 (Taha 1987, 3). He came out of his first imprisonment a changed man: ‘he grew a beard and was remarkably serene’ (Bashary 1981, 371). He redefined the party as having a message of spreading true Islam, and asked the members to swear an oath to him as the one entrusted with delivering this true religion. He also asked them to pledge to stop lying, illicit sex, drinking or indulging in any of the immoral acts in order to endear themselves to him (1981, 371).8 8 Al-Majdhub, the poet, a fiery nationalist and a founding member of the Republican Party, told me in 1967 that he refused to give Taha the oath of religious allegiance,

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Taha’s second arrest was for his role in leading demonstrators to set free a midwife of his hometown, Rufaa, imprisoned for performing pharaonic circumcision on a girl in violation of a colonial law that made the practice illegal. Taha’s resistance to the British action was undertaken on the nationalist premise that the nation is already sovereign because the colonial state is kept outside of ‘the inner domain of national culture’ (Chatterjee 1993, 6). The prosecution of the woman was a revulsion for Taha. In protest, he gave a sermon in the town’s mosque denouncing the uncalled-for colonial intrusions in the affairs of a culture that should have been granted freedom first in order to remedy whatever flaws it suffered from. The demonstrators crossed the Blue Nile to the government headquarters on the west bank, stormed the prison and freed the woman on the spot. Taha was sentenced to two years of imprisonment. In the isolation of the prison, followed by a self-imposed period of seclusion in his hometown, Taha took a rigorous program of mediation, prayer and thinking that he ultimately articulated in his The Second Message of Islam (1967/1987). When he emerged in 1951, Taha presented the party with his new religious message. Again, members of secular inclinations left the party. Those who remained transformed the party to be the vehicle for the propagation of Taha’s unique vision (Taha 1967/1987, 3–5). His enemies attribute what they saw as his delusion and false prophecy to this period of isolation. He is even rebuked for allegedly calling this period of seclusion the ‘Hira Period,’ Hira being the mountain Prophet Muhammad frequented for contemplation and meditation before announcing his Prophecy (al-Mutiʿi 1986, 100). Taha’s spiritual path is unique and had been attempted by none of his generation of modern elites. Maturing in this path, he became the undaunted, controversial figure we will see evolving in this chapter. His strong faith in what he believed to be the truth was captured, apprehensively rather, by a contemporary who described him in 1952 as ‘having strong views and holding forthrightly to his beliefs. Had he moderated his strong personality, straightforward thinking, and cleverness by some flexibility and a touch of compromise, he could have attracted numerous following’ (ʿAbd al-Qadir 1952, 154). Taha later assembled a good following among the young elites though. However, this contemporary was

and left the party. Taha’s new religious orientation and commitments did not sit well with a poet who is never tired of advertising his lust and sins. See his Nār al-Majādhīb (Khartoum, 1969).

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right in one respect. For Taha’s sacrifice in 1985 proved the foresight of this contemporary for saying that Taha showed even then ‘an admirable faithfulness to his cause, to the Sudan, and, indeed, the world at large’ (1952, 154). His miḥ na and ideas have been increasingly communicated to a wider global audience (Taha 1967/1987; an-Naʿim 1990) with noted appreciation and sympathy (Bilgrami 1992, 839). The Republicans held a controversial version of Islamic revival. Taha, the founder of the movement, offered a modern interpretation of Islam in The Second Message of Islam (1967/1987). He argues that the foundation of Islam was built on two successive and layered messages. The first message, tolerant and egalitarian, the Prophet preached in Mecca. After his flight to Medina, a shift took place. Here, God responded through the Prophet to the needs of a society at a level of development far below the ideals of the First Message. As a result, Taha argues, aspects of the earlier message were abrogated and obscured, although they remained operative at a moral/persuasive level. Taha concludes that the texts of the Second Message underpinned the development of the legal codes of the sharia that discriminate on grounds of sex and religion. A new era of Islamic jurisprudence will begin, he argues, with the return to the Meccan texts that call for equality of all human beings (1987, 21–25). Two aspects of Taha’s idea and practice especially affronted clerics. First, his principal claim that Islam comprised two messages, the second of which was implemented in Medina when the Meccan text was found to be too good for the times encountered in Medina. Clerics took this as an insult to the Prophet for suggesting his failure to deliver what God had entrusted him in its entirety (Zaki 1986, 168). Taha defended his position on this point by saying that the Prophet had delivered his message in full. Hence he cannot be blamed for any shortcoming because the people of his times could only take so much of his message. Taha denied that the second coming of Islam, on the basis of the Meccan message, was his invention because the Prophet had already spelt it out in propagating his comprehensive call during his life time. The Prophet is, therefore, the messenger of the two messages: The First one his audiences, in their specific and limiting historical circumstances, succeeded in understanding and practicing it. He also delivered the texts of the Second Message but he lived its beauty in his own self. Taha argues that the implementation of the First Message would be the work of the awaited Mohammadan Messiah (the man who will bring to life

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the Second message of Islam) and his receptive nation (RP, April 1978, 27–29; RP, December 1980, 6; Shaʿrani 1988; Zein 1989, 291–292).9 No wonder his enemies accused him of claiming to be this Messiah.10 In terms of practice, the clerics were affronted by Taha’s argument that he had reached a state of piety and closeness to God that he was no longer required to perform the usual prayers and other articles of faith (Zaki 1986, 95–98). He was said to claim that his prayer is on par with the Prophet’s personal benediction, praying by heart and not by body motor movement. The combination of Taha’s ideas and rituals, or lack of them, was a recipe for disaster for him. Despite the remarkable inroads he made among the modern elites, average Muslims were left confused by both the unsettling images in which he couched his layered Islam, and the way his adversaries read them out of the context of religion. In 1968, the Sharia High Court, adjudicating charges brought by two professors of Omdurman Islamic University, found Taha guilty of apostasy. Two imams, an Islamic missionary and ex-member of the Muslim Brotherhood were witnesses for the plaintiff (RP, January 1969, 27, 30). We will see that one of the plaintiffs, al-Amin Daud, continued to stalk Taha until 1978. Distressed, Taha once confessed that the ‘pain al-Amin has caused us is immense’ (RP-Daud 1978: Vol. 1, 21).11 The ex-member

9 Taha has a concept of the Mohammadan Messiah that is different from the ones generally held by Muslims and practiced in Sudan. Contrary to the common belief, Taha does not see the Messiah as coming after the Mahdi, the renewer of Islam, whose mission was halted by al-Masīḥ al-Dajjāl (the anti-Christ). An outbreak of conventional Messiah movements challenged the British in Sudan between 1900 and 1927 after the collapse of the Mahdist state (Ibrahim 1979). The Mohammadan Messiah, according to Taha, is a pious Muslim who ascends the rungs of spiritual perfection as defined in the Sufi ideology and practice. In this ascendance, he would reach the station of the Mahdi and become one. Yet he would pass the station and grow to be the Messiah. Also, the Messiah, according to Taha, is not the Christian Messiah as Muslims wrongly believed him to be (RP, December 1981). 10 Taha called for the return of historical Islam, the Meccan message, and described it as the ‘Second Message’ although historically speaking it is the first one that did not fly. Taha, when speaking about the return of Islam, is apparently talking about a second coming of the religion based on the first message the Prophet delivered but circumstances were not ripe for it. 11 Daud used Taha’s feminist arguments to accuse him of practicing a communism of women in his Iṭiṣālāt Murīiba (Shady Connections, n.d.). The book was intended as a rebuttal of Taha’s book (PR, May 1976c) in which he supported co-education at Omdurman Islamic University where Daud was the Dean of the Women’s College. Daud had written before to the authorities to investigate the shady dealings allegedly taking place in Taha’s hostels in which some of his disciples lived. Foreigners and Christian ministers and priests, Daud claimed, were constant visitors of Taha. To this aspect of

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of the Brotherhood provided the much-needed testimony that Taha had claimed in prison back in the 1940s that he was the Muhammadan Messiah (al-Muti’i 1986, 100). Taha’s claim of a mission based on direct communication with God, as noted earlier, is common knowledge to the generation of the 1940s. However, Taha played down this element after the rejuvenation of his movement in the mid-1960s. Taha survived the apostasy ruling because neither the colonial sharia code (1902) nor the postcolonial one (1967) gave sharia courts jurisdiction in other than family law. In 1968, the court had to entertain the case against Taha as ḥ isba (Islamic citizen law) by which a Muslim sues for being injured by sayings and acts that insult Islam. Had the court possessed the original sharia apostasy jurisdiction, Taha could have been forced to recant or face death. The plaintiffs had asked in their petition to the court for his Muslim wife be divorced, his corpse buried in other than Muslim graveyards, his books confiscated, and his group disbanded and prevented from interpreting Qur’an or discoursing Islam (RP, January 1969, 5). None of these punishments was executed by the Sharia High Court for lack of jurisdiction. The clerics had to wait until 1985 to avenge themselves. Neither Taha nor his adversaries, the clerics, forgot or forgave the 1968 apostasy ruling. The failure to punish Taha kept reminding the clerics that not even in independent, Muslim Sudan could a court go beyond what colonial infidels had prescribed for sharia. The qadi of the 1968 apostasy case himself was content to sentence Taha for apostasy stopping short of considering the punishments Taha should have suffered as a result. In a humiliating, implicit recognition of the limitation of his court, the qadi licked his jurisdictional wounds by stating that he would not consider those actions and ‘those attendant understood this’ (RP, January 1969, 30). Taha’s adversaries never ceased their campaign to incapacitate him as noted in Chapter 3. In March 1969, the qadis apparently talked the SCS, which was reasonably implicated in the making of the 1968 apostasy ruling against Taha (RP, November 1975, 5–6), into inviting ulema to deliberate on Taha’s continued activities after the ruling. Before that,

Taha’s suspicious connections, Daud devoted his book. This communism of women and other vilification were viciously played up by the lawyer of Daud, who was sued by Taha for libel in 1978, to insinuate that Taha’s hostels were the scene of scandalous mixing of men and women. We will see later how Taha, in protest against this vindictive defense strategy, withdrew his side (RP, 1978-Daud: Vol. 6, 14–15).

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the Grand Qadi had already petitioned the SCS in January 1969 to direct the Minister of Interior to prevent Taha, the apostate, and his errant disciples from indulging in preaching Islam and to confiscate their books (RP, December 1974, 80). Nimerie’s coup in 1969 brought to an end the reign of the Islamic forces with whom the clerics had forged alliances in fighting for parity with the Civil Division, and against Taha. Nimerie not only saved Taha from his stalkers, but also humiliated them in his campaign to intimidate and control the Islamic actors of the ancient regime. In June 1970, he fired a number of the Sharia High Court for allegedly putting religion in the service of the reactionary politicians of the previous regime (RPPort Sudan 1975: Vol. 1, 12). Also, authorities revealed to the public that qadis had borrowed from the waqf and quṣar (religious endowments and legal minors respectively) funds, under their administration, and did not pay back their debts for as long as twelve years (RP-Port Sudan 1975: Vol. 6, 7–8; Vol. 8, 36; RP, July 1975b, 27). Taha remained a staunch ally of Nimerie until the latter found it to his political convenience to appease and accommodate the Muslim Brotherhood and the sectarian political parties in his 1977 initiative of national reconciliation. In recognition of this alliance with Taha, Nimerie had respectfully presented him with a signed copy of his book, al-Nahj al-Islāmī, Limādha? (The Islamic Way: Why?) (Khalid 1986, 113).12 The Republicans went to great lengths to defend Nimerie’s regime. In their enmity of religious sectarianism and the Muslim Brotherhood, the Republicans would accommodate even a flagrant dictator as long as they had been given a breathing space to spread their novel interpretation of Islam (al-Boni 1995, 60). As a result, they adamantly opposed a variety of trade union actions against Nimerie for fear that the sectarian opposition to Nimerie would use them. With the proclamation of the Islamic laws in 1983, coupled by the increasing persecution of the Republicans by the state and the clerics, the Republicans’ alliance with

12 ʿAbdalla Muhammad Ahmad, an opponent of Nimerie regime, related how he met with Taha in November 1984 to warn him of a desperate Nimerie who had planned to frame his political enemies to eliminate them. Unimpressed, Taha, according to Ahmad, showed him the copy of Nimerie’s book signed by the author to argue that he had no fears of the President whatsoever. In the dedication Taha was described by Nimerie as, ‘My sheikh and teacher’ (al-Watan (Sudan) 28 May 1988). However, Taha Ibrahim told a contradictory story in which Taha had warned him against publishing a book critical of political Islam that included a chapter on Taha’s views, because Nimerie would have used it to hurt Ibrahim (al-Ray al-Akhar, April 1996).

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Nimerie came to an end. They openly attacked these Islamic laws as intended to terrorize the nation to submit to Nimerie. After recovering from the political and moral abuse hurled at them by Nimerie’s coup in its leftist phase (1969–1971), the clerics were again lobbying unflinchingly to neutralize Taha. His followers were denied access to pulpits in government mosques for fear that they would spread their usual heresies (RP, July 1975a, 8–9). Furthermore, the Ministry of Religious Affairs and Endowments bought a thousand copies of a book by Daud, the unforgiving plaintiff in the 1968 case, to distribute to worshipers in mosques to see the heresies of the man first hand. Excerpts of the book were reportedly read in mosques (July 1975a, 11–12). Responding to an inquiry from Nimerie in 1974 about the status of Taha and his Republicans, the Director of Religious Studies in the Ministry of Religious Affairs and Endowments wrote a memo in which he bewailed the times in which Islamic sanctions were not put in force to silence an apostate from Islam such as Taha (RP, December 1974, 86).13 In the memo, the Director proposed the launching of a campaign in all major cities to falsify Taha’s heresies in order to reconvert his misguided followers to true Islam (December 1974, 93). The memo referred to the 1968 sentence against Taha and the fatwas from al-Azhar (1972) and the Muslim World League (1975) denouncing Taha’s apostasy, as strong reasons to stop him from spreading his heresy (December 1974, 68, 80). The clerics’ campaign was relentless. The fatwas of al-Azhar and the Muslim World League gave the Sudanese clerics the Pan-Islamic support to continue the fight against Taha. The ferocity of the campaign convinced Taha as early as 1975 that the alliance of clerics, traditional Sufis, and salfis (traditionalists, his special designations for al-Turabi’s Muslim Brotherhood), that had been behind the apostasy ruling of 1968, was closing ranks to resuscitate the old ruling (RP, November 1975, 4, 7). His premonitions came true. On January 3, 1976, forty-two men of religion, described by the Republicans as clerics and Sufi shaykhs

13 A journalist dates the souring of relations between Nimerie and Taha as early as 1973. After a bitter attack on the Republicans, Nimerie discovered that they were innocent of what he had accused them of thanks to the intervention of al-Haj Musa, the Minister of Information and Culture. A journalist used the occasion of reconciliation to interview Taha. Taha denied indirectly in his replies what had been alleged about him abandoning the performance of prayers (al-Siyasa 4 May 1987).

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(RP, January 1976a, 19), petitioned President Nimerie expressing their embarrassment that Taha, whose flagrant apostasy should have led to his instant death, was still at large.14 Copies of the petition were sent to various state agencies including security organs and to lawmakers in the People’s Assembly. The petitioners had their eyes on Taha as the ultimate prize. According to sharia, the petition stated, Taha’s blood is hadr, that is, free game; killing him does not constitute a crime under the law (Zaki 1986, 168–169). Until the time that sharia would become the law of the land, the petition went on to say, Taha should be incarcerated for life to prevent him from spreading his heresies. Also, the petition reiterated the stock actions the clerics had always wanted the government to take against Taha’s followers, such as confiscating their books, closing their hostels, and restraining them from preaching religion with the people, or interpreting the Qur’an (1986, 169). The clerics followed up their petition by a special statement directed to mosque imams and preachers to use their sermons to propagate the content of the petition to their congregations. Furthermore, imams and preachers were directed to prevent the Republicans from using the pulpits to spread their false Islam (1986, 172–177). Finally, the clerics lobbied 99 members of the People’s Assembly to present the Minster of Interior with an urgent question about the steps taken to eliminate the heretical activities of the Republicans (al-Boni 1995, 60). Taha, on the other hand, began mobilizing his intellectual and human resources to confront his foes. He intensified his work in defending and elaborating his message using street-corner discussions and selling of books (Howard 1986; RP, May 1976b), book exhibitions, cultural caravans to outside the capital, court dramas in which he sued detractors, or was sued by them, and unprecedented pamphleteering.15 Further, he

14

Curiously enough, in the petition the names of the many and notorious security organs came before the names of the High Court, a variety of ministries, and the People’s Assembly (Zaki 1986, 170–171). 15 In a country where a second run is a luxury, some of the titles published by the Republicans ran to five editions. One title sold 30,000 copies in a market where 3,000 copies mark an exceptional success. In 1978, they were publishing nearly one hundred titles, a level of activity unmatched in Sudan even today. Taha’s adversaries, on the other hand, were using court ruling, fatwas, sermons, and petitions to authorities to disprove his views and practices. For the modes of activities surrounding the distribution of these books, see (RP, May 1976b). The pamphlet describes the activities their teams were supposed to perform in a week devoted to selling of books and street discussions they collectively called ‘The Conquest of the Capital City.’

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led a campaign to mobilize secular and urban support to press for the removal of the apostasy ruling from the judicial records (RP, August 1975, 16), the liquidation of the religious bureaucracy, and the annulment of its authoritative texts and laws. Of course, the allies of the clerics in the Egyptian media and al-Azhar, whose influence in Sudan was and still is immense, came under fire too. Also, he never ceased rubbing in the jurisdictional embarrassment of the clerical class by reminding them that their apostasy sentence against him, in practical terms, had been null and void. Dismantling the Religious Bureaucracy The Republicans had always wanted to dismantle sharia administration and the religious establishment at large (RP July, 1975b, 43). They only initiated the legal process to bring this dismantling about in September 1975 in the context of their harassment that culminated in the petition submitted to President Nimerie in January 1976 to bar the Republicans from preaching Islam.16 As late as May 1975, the Republicans welcomed the integration of the two divisions of the Judiciary in 1972. In this new arrangement of the Judiciary, they approved the new designation of ‘qadis’ as ‘judges of personal law’ for it denied them the old presumptuous title of ‘sharia judges,’ which made them undeservedly the spokesmen of sharia and Islam (RP, May 1975, 6). Nonetheless, the Republicans continued to press for the elimination of these courts (RP, May 1975, 5–6).17 In July and August 1975, they represented their conflict with the qadis as a tug of war between conservatism and progressivism ‘that cannot be resolved by courts or administrative procedures, but by the power and the logic of our truthful message’ (RP, August 1975, 20; July 1975b, 43).

16 This petition was published and refuted in (RP, January 1976b and February 1976b). 17 In January 1976, the Republicans called for the elimination of the personal law courts as they stood after the amalgamation of the Judiciary, and the appointment of civil judges to decide on personal law cases. These civil judges, the statement goes, would restore respectability to sharia, the personal law of Muslims. The ultimate goal of the Republicans would still be the evolution of a unified law of civil and personal law derived from sharia to be the basis of the unified judiciary (RP, January 1976b, 9–10). For a succinct statement in English of the positions of the Republicans on this issue, see an-Naʿim (1980).

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The unrelenting persecution the Republicans suffered under the clerics in 1975 drove the former to explore their constitutional options for the liquidation of the courts of personal law, formerly sharia courts (RP, May 1976a). They made their boldest move in this direction in September 1975. On that date they petitioned the High Court to remove what they alleged to be the blatant discrepancy between the 1973 Constitution and the sharia laws governing the personal lives of Muslims. Existing sharia, the petition maintained, violated equality based on citizenship enshrined by the Constitution, by privileging men with the right to divorce and to marry four wives. These religious laws also made a man equal to two women, the petition added, in terms of the weight of his testimony before sharia courts and in the distribution of inheritance (RP, May 1976a, 9). Further, the petition asked for the liquidation of the personal law system for violating the Constitution by turning itself into a legislative body issuing laws in the form of circulars to the qadis. In their view, the qadis’ administration, by assuming this legislative role, breached the constitutional principle of the separation of powers (May 1976a, 11). The High Court dismissed the case on the grounds that the Republicans, as plaintiffs, had no standing to bring it because they were not personally aggrieved by the laws (May 1976a, 58). To repulse the onslaught of the clerics, the Republicans had been trying to find allies among the secular elites in the press, the women’s movement, and the lawyers. In their protracted fight with the clerics, the Republicans developed a novel concern with, and sensitivity toward, women’s liberation beyond the secularists’ wildest dreams in this respect. In their cardinal belief that the seventh century Arabian society fell short of receiving the message of freedom in Meccan Islam, they argue that a sharia derived from this First Message of Islam would only patronize and hurt women. Their Second Message of Islam, that will restore the original Meccan message of freedom, they argue, is hospitable to the gamut of women rights such as the right to divorce, which even avowed secularists had been shying away from advocating forthrightly. Without waiting for the implementation of this version of Islam, Muslim wives, according to the Republicans, asked and can ask in their marriage contracts to have the right to divorce without departing an iota from Islam as has been practiced along the Medina lines (RP, September 1975a, 13–15). Further, the Republicans defended co-education as an opportunity of intellectual growth for both young men and women. This was the reason why they stood by the students of Omdurman Islamic University, the den of the clerics, when they had

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been on strike to effect co-education (RP, May 1976c). However, the Republicans were disappointed to see that the women’s movement was more concerned by equality in the work place rather than in home. For the law of the home, the women’s movement, the Republicans complained, still trusted the qadis with reforming it. Instead of questioning the qadis’ authority in administering an archaic sharia, the movement was endorsing them to the chagrin of the Republicans (RP, September 1975a, 11–12, 17). The Republicans were taken aback by the apathy of the secularist toward the mounting violence against them. In their appraisal of the violence they were subjected to in Kosti town in 1974, they concluded that the elite of the town, and at large, were conspicuous by their absence in protesting this lawlessness. In their eyes, the elite let down the people who, according to a favorite Republican phrase, ‘lack not the guts, but the appropriate information which a host of circumstances have conspired to deny them’ (RP, July 1975a, 100–101). In their largely lonely fight against the clerics and their supporters in Egypt and Saudi Arabia, the Republicans lashed out against journalists for not even reporting about their constitutional case asking for the dismantlement of the religious establishment (RP, May 1976a, 63). Lawyers were criticized for standing aloof from this legal exercise in imagining freedom (May 1976a, 62). The women’s movement, on the other hand, was reminded that the issues the Republicans fought for were the ‘concern of every educated women, every woman in fact’ (May 1976a, 63). In their disappointment in the elites for looking the other way when the freedom of expression was at stake, the Republican coined the maxim: ‘Information and pens are currently possessed by other than their deserving owners’ (RP, July 1976, 6). In resigning to their isolation from the elites, they decried them for abandoning their people ‘who have no resort but God. God will not let them down and will not allow them to be preyed upon by falsifiers’ (July 1976, 6). At times the Republicans matured their anger into unique insights in the politics and culture of the elites. Modern elites, they argued, are too removed from Islam to have the resolve to challenge the clerics. This elite’s disinterest in religion, they maintained, allowed the clerics to claim the sole authority in interpreting religion (RP, September 1982, 12–13). Whereas elites would proudly confess their ignorance of the basics of Islam, they would feel embarrassed if their lack of knowledge in Western philosophies and creeds was revealed in any shape or form. The colonial Manichaean education, they concluded, is responsible for

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a situation in which the clerics control the religious discourse unchallenged (RP, July 1976, 4). That said, fairness would have required the Republicans to nuance these insights by asking themselves whether their alliance with Nimerie, whose despotism was high on the agenda of the secular elites, might have trivialized their otherwise magnificent insights about the worth of freedom of expression and women. In their cherished and successful habit of overthrowing junta regimes, elites have lost the appetite for, and the skill to, perform piecemeal change before the restoration of democracy. Elites apparently believe that all the goodies come after the restoration of democracy. Before that one is either with the junta in place or against it. Unfortunately, Taha, notwithstanding his remarkable reforms, was seen by influential sections of the elites, for his enduring support of Nimerie until just before his execution in 1985, as standing on the wrong side of history. Shaming the Clerics Taha used the inability of the Sharia High Court to execute its ruling against him, for lack of jurisdiction, to prove that the qadis were merely judges of milla (a subordinate religious community). Confined to this diminished sharia capacity, qadis, according to Taha, had been dutifully executing the restricted family jurisdiction assigned to them by victorious, infidel colonialists and secular postcolonial regimes. For business and politics, the colonialists and their national successors, Taha maintained, had other than sharia to resort to. Taha was saying this all along before the 1968 ruling (RP, August 1975, 13–15) and never ceased rubbing it in after that. Before a court in Port Sudan city in 1975, Taha, who was sued for libel by a qadi, used his physical presence in the court to mock the 1968 apostasy decision. Taha argued that the mere fact that he had been standing in one piece all day long before the plaintiff, a qadi, proved that the sharia court that decided his apostasy had overstepped its colonial and postcolonial jurisdiction. Taha asked the plaintiff: ‘Why didn’t the 1968 court consider the actions in the plaintiff ’s petition beside the apostasy ruling (those actions requiring divorce from his wife, his burial in other than Muslim graveyards, etc.). Did the court succeed in executing the apostasy ruling against me?’ ‘I really don’t know what happened.’

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chapter five ‘Don’t you see me standing before you in one piece contrary to what the court wanted me to be?’ ‘They obviously failed to execute the sentence.’ ‘Isn’t the execution of law an inseparable part of the law? The court could have been empowered by the same jurisdiction to execute its sentence, if it had been looking into a crime within its jurisdiction,’ (RP, Port Sudan: 1975, Vol. 5, 6–8).

The Usurping of a Genre Legal disputes between the Republicans and the clerics over the political and jurisdictional implications of the 1968 apostasy court multiplied over the following years, and the courtroom became the scene of important religious, political, and ideological engagement. The Republicans utilized the court transcript as a polemical genre. Through gavel-to-gavel coverage of the trials, this genre established a compelling drama with vivid characters and ideas. The genesis of the genre lies in the pamphlet Baynanā wa bayn Maḥ kamat al-Rida (Between Us and the Apostasy Court, January 1969), which objected to the constitutionality of the 1968 proceedings. By drawing on press reports of the case, the pamphlet rebutted the apostasy charges. In later proceedings, however, the Republicans used their own reporters to record testimony verbatim.18 Between 1975 and 1978, five major lawsuits took place. The proceedings of the first case were published in Qaḍāya Kosti (The Kosti (Town) Trial, July 1975). In this case, Republicans sued an imam who fermented assaults against them, and some members of the public who disbanded a Republican preaching meeting in the town. In a second lawsuit, Taha was sued for libel by a senior qadi and Waqāīʿ Qaḍyat Port Sudan (The Proceedings of Port Sudan Trial, 1975) ran to eleven volumes when the Republicans published its proceedings and related commentaries. In the third case, published in ṣafū Dawāyir al-Aḥwāl al-Shakhṣiyya (Disband the Personal Status Law Circuits, January 1976), the Republicans sued a trainee qadi who had allegedly charged one of them for obstructing

18 In a 1978 case, the lawyer for the defendant asked the judge to order the Republicans to stop publishing the court procedures that were allegedly not representative of what had transpired in the court (RP, 1978–Daud: Vol. 4, 8–11). The judge dismissed the objection. In full awareness of the Republican recorders in the court, a judge, who quipped, asked the recorders if they would write even his joke down (1987–Daud: Vol. 4, 17).

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the court proceedings and contempt of court while selling Republican literature in the court premises in Kosti town. In the fourth case, the Republicans sued an imam for libel and published the proceedings in ʾImma bilā ʾIymān (Imams Shorn of Faith, December 1977). The Republicans finally sued Daud, the plaintiff of the 1968 apostasy case, for libel, and published Waqāīʿ Muḥ akamat al-Amin Daud (The Proceedings of the Court Trying al-Amīn Daud, 1978) before withdrawing from the trial. The Proceedings of Port Sudan Trial was the culmination of this genre. Taha and his disciples emerged victorious, effectively dramatized their ideas, and won vindication against a qadi who had accused them of defaming the qadi class. The use of the litigation genre came to an end, however, when the Republicans filed a case against Daud, their unrelenting opponent in 1978. The attorney for the defendant, a Muslim Brother who became the Vice-President of Sudan in 1998, interrogated a Republican so ruthlessly that Taha asked to address the court before being interrogated, claiming that the defense attorney did not address the charges but used the courts to exercise his political animosity toward the Republicans. The court refused and Taha withdrew his side from the courtroom. The case continued but the Republicans stopped publishing the proceedings. We will see how the qadis remembered this incident as additional evidence of Taha’s contemptuous attitude toward courts of law. As a final irony, the adversaries of the Republicans appropriated the genre the Republicans had devised. In January 1985, Taha and his disciples boycotted a court that was again trying them for apostasy. Found guilty, they were sentenced to recant or face death. The Appeal Court denied Taha even the right to recant and he was hanged on January 18, 1985. His followers recanted and the brief proceedings of the court, the opinion of the Appeal Court, and President Nimerie’s address to the nation confirming the sentences passed by the courts, and the recantation sessions were published, videotaped, and broadcast on national television and radio. The opponents of the Republicans usurped the genre of the courtroom transcript and transformed it into a tragedy. Dramatizing Taha’s Ideas of Reform On April 26, 1974, Taha was sued by Ibrahim Jadalla, the Provincial Qadi of the Red Sea Region, for libel and defamation of the sharia court

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system and its personnel.19 Jadalla was provoked into this action by a poster at an exhibition of Taha’s books at the Graduates’ Club in Port Sudan, the capital of the Red Sea Region. The poster read: ‘Qadis are too servile to be entrusted with the personal law of Muslims for it so critically regulates the lives of husbands, wives, and children. In a word, the law regulates one’s honor.’ Another poster addressed the specific grievances of Taha against the qadis: ‘The qadis’ repugnant ignorance is exhibited graphically in indicting Taha for apostasy in 1968. They are the last people to speak on behalf of Islam for their long history of collaborating with colonialism’ (RP, April 1976, 4–6). Taha, who did not deny the content of the charges, used the court to marshal evidence to support his positions on qadis as reflected on the posters. Key to this strategy was contrasting the qadis’ docility to colonialism to Taha’s record of resisting it. By this line of argument, he wanted to deny the qadis any legitimacy of representing Islam because they accepted to work in both colonial and postcolonial times within a defective jurisdiction relegating sharia, an encompassing tradition, to family law. In confining themselves to this narrow field of sharia, he argued, the qadis had even failed to either force him to appear before their Sharia High Court in 1968, or execute their ruling of apostasy. To prove that the qadis were a colonial invention and relic, Taha traced their ‘monkish’ dress to colonial edicts. Further, he paraded before the court their acts of collaboration with an infidel administration and the rewards they got in exchange. Finally, he berated them for not engaging Islam in the fight for national freedom, which was pioneered by the effendi nationalists. Respecting the qadis’ attire, Taha and the co-accused denied that the dress has any basis in Islam according to the traditions of Prophet Muhammad. To make this point, a defendant asked the plaintiff: ‘Did Prophet Muhammad wear any formal dress?’ ‘No.’ ‘Do the qadis wear formal dress that is intended to surround them with sanctity?’ ‘No.’ At this point the defense read a circular issued by the Grand Qadi on May 18, 1945, that directed qadis to wear jubba (a long outer garment,

19

The first session of the trial was held on June 12, 1975. The proceedings were later published by the Republicans in eight volumes and two supplements varying in length of 20 to 50 pages.

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open in front, with wide sleeves) and waistband to earn respect due to the post. The defense then asked: ‘Do you still insist on your previous answer?’ ‘I do.’ (RP, Port Sudan 1975: Vol. 2, 7).

To prove his point that the qadis were shameless collaborators with the British, Taha also reminded the plaintiff and his witnesses of the fatwa issued by the Grand Mufti, a cleric, allowing Sudanese Muslim soldiers of the Sudan Defense Force to break the fast in order to fight under British command in Ethiopia and Libya during the Second World War. He then asked: ‘Do you consider Muslims fighting with the British as engaging in a jihad for God’s sake?’ The reply was: ‘They were fighting to defend their country rather.’ (RP, Port Sudan 1975: Vol. 1, 28–29).

Further, Taha produced a circular issued by the Grand Qadi in 1946, the year nationalist stirrings were on the rise, preventing mixing politics and religion in mosques. To bring out the shameful collaboration between qadis and colonialism, a co-accused summoned events from the same period in which Taha had been making speeches in mosques mobilizing people to unite against colonialism. Understandably, this question to the plaintiff imposed itself: ‘If someone prevented people from using the pulpit to agitate against colonialism whereas another had been imprisoned for engaging in that very agitation, how do the two compare?’ ‘I just can’t judge them’ (RP, Port Sudan 1975: Vol. 1, 32).

As a reward for their docility, qadis, Taha and his co-accused maintained, were showered by colonial favors. Qadis joyfully received robes of honor and waistbands from the Governor-General in 1946; the year Taha was imprisoned for not signing an undertaking to stop his political activity (Port Sudan 1975: Vol. 1, 13–14). Qadis’ subservience to rulers, according to Taha, continued even into the independence era. They had been administering oaths to rulers who did not apply sharia. In the Judiciary they replaced servility to the colonial Legal Secretary with cringing to the Chief Justice who invariably came from the Civil Division of the Judiciary (RP, Port Sudan 1975: Vol. 5, 23). Qadis were also taken to task by Taha for backing out of their religious duty of waging war against an infidel colonial government. The secular effendi class filled the vacuum qadis left by this reneging. The country was liberated from infidels, he argued, thanks to the effendi

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national struggle. A witness of the plaintiff, who was asked to comment on this paradox, said: ‘Politics is not in the qadis’ job description. They were only entrusted with implementing sharia. They had nothing to do with politics.’ The defense retorted: ‘Politics was not in the effendis’ job description either. Yet they led the national movement against the British’ (RP, Port Sudan 1975: Vol. 3, 34).20

The meager colonial sharia jurisdiction of the qadis was skillfully discussed by Taha to prove that he had been right in describing them as servile and could not be entrusted as spokesmen of sharia. To scold them for tampering with sharia, an indivisible tradition of personal and public life, Taha paraphrased the verse of Qur’an warning Muslims not to ‘believe in part of the Book, and disbelieve in part’ (2:85), and asked the plaintiff: ‘Do you agree with me if I say that the qadis were overpowered into accepting this partial sharia jurisdiction?’ ‘Through no fault of theirs. The qadis had not the authority to secure more sharia than had already been given to them.’ ‘Is it correct to say accepting this defective jurisdiction was something they had been forced to have, or was it a situation they liked?’ ‘They were performing their duties within the powers given to them’ (Port Sudan 1975: Vol. 6, 27–28).

As a resister of colonialism, Taha used this admission to argue his right to ‘defame’ those who had been subservient to colonialism to the extent of dismembering sharia. The plaintiff came up with a classic collaborationist argument provided by sharia itself (Ibn ʿAbdin 1966, 369): ‘In times of oppression implementing part of sharia is the highest stage of belief.’ Taha replied: ‘Can it be said that implementing part of sharia and ignoring parts is the highest form of belief according to sharia?’

20 Taha reminded the witness with a line from Shawqi (1869–1932), the famous Egyptian poet, in which the poet made a similar comparison between clerics and effendis, led by Kamal Attaturk of Turkey. Shawqi also derided the men of religion in Turkey for passing the bucket of resistance to the effendis when fighting oppression had been in order. His line goes as follows: The ones [effendis] who risked their wealth and blood to save you When the Shaykhs sold you for a jubba (the standard robe of men of religion) (RP, Port Sudan 1975: Vol. 3, 34).

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‘The strongest level of belief is to apply sharia in my area of expertise.’ ‘Let us suppose that a thief came to a qadi and confessed to theft, what would the qadi do?’ ‘He would tell him to go to a civil judge instead.’ ‘Is the qadi’s failure to try the thief a sign of a strong belief in sharia that has its penalties for theft?’ ‘Qadis should not be held to account for this discrepancy. They were stripped of the right to adjudicate over such cases.’ ‘Would it be right to describe a man denied such a right as enjoying the highest level of belief?’ ‘It is not like something taken out of a qadi’s pocket. It is a matter of administrative specialization’ (Port Sudan 1975: Vol. 6, 27–28).

Taha kept rubbing in the point that the diminished, colonial sharia jurisdiction of the qadis was grounds for calling them subservient and servile. Toeing the colonial line, he argued, was the epitome of dishonor: ‘Is an oppressed man [like the qadis] a proud or a dishonorable person?’ ‘No, he is not in so far as he is oppressed by colonialism.’ ‘Is he a proud man?’ ‘Of course, not.’ ‘Is the one who yields to despotism a dishonorable man?’ ‘Perhaps he is coerced to surrender.’ ‘Were the qadis coerced into submission?’ Taha got no answer from the plaintiff (RP, Port Sudan 1975: Vol. 6, 47).

Qadis, in being a colonial invention, Taha argued, alienated rebellious young men and women from Islam. These young men were thus led to espouse communism, which appealed to them for addressing social and national issues. In its original homeland, communism, Taha argued, flourished because of the decadence of the men of religion.21 Taha ran these questions by the plaintiff: ‘Have you heard of Marx?’ ‘I have.’ ‘Do you know some of his philosophy?’ ‘He is a materialist. He does not believe in faith, metaphysics, or religion.’ ‘Do you recall one of his specific positions on religion? He has a popular statement about religion going around. Do you know it?’

21

The drama did not lack touches of comedy. Taha caricatured the anachronistic education of the Islamic judges by observing that sharia teaching does not require a husband to pay medical bills of a sick wife, but sanctions the selling of fish that swim in school (RP Port Sudan 1975: Vol. 3, 13–18; 37–43).

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chapter five ‘Yes. Religion is the opium of the people.’ ‘Can you identify the contexts that made him hold this very low opinion about religion?’ ‘Yes. People were poor and desperate in Russia. Instead of helping them to find happiness in the here and now, the church postponed it to the hereafter. However, Islam is a different religion altogether. It is a religion of liberation.’ ‘I think you agree with me that Marx judged religion by the way men of religion had been acting?’ ‘He did.’ ‘He did then.’ ‘But this is only applicable to Christianity’ (Port Sudan 1975: Vol. 4, 11–12).

Taha’s Resistance to Nimerie’s Islamization The Republican alliance with Nimerie reached its end in 1982 in circumstances largely accentuated by Muhammad Najib al-Muti’i. Al-Muti’i was an Egyptian university professor and a Muslim brother, who had made it his personal calling to campaign against Taha.22 He first encountered Taha’s views in 1981 when he came on the invitation of the Sudanese Students Union in Egypt to give talks in a number of towns in Sudan (al-Muti’i 1986, 5–6). He later came to the country as an expatriate professor at the Omdurman Islamic University. From this base he started lashing out against Taha in 1983. He was even asked by the Vice-Chancellor of Omdurman Islamic University to write a report appraising Taha’s views (1986, 157–209). In his report, he concluded that Taha exuded heresies as if ‘apostasy is a cigarette in his mouth’ (1986, 154). In his book, published after Taha’s execution, he took credit for ‘shaking Taha so violently until he took him to his end, praise to God and acknowledgement’ (1986, 157). Al-Muti’i apparently found an ally in Omar Muhammad al-Tayyib, the First Vice-President of Sudan, the Chief of the State Security Apparatus, and a loyal supporter of a small Sufi brotherhood. Putting the state media, widespread and uncontested, and mosques at the disposal 22 In ridiculing Taha as an errant Muslim, Al-Mutiʿi calls Ṭaha (this how it should have been written had we been strict in transcribing it) ‘Taha’ (the Arabic for ‘lost one’s way’). To put Taha in his place for alleging a divine mission as the Mohammadan Messiah, al-Mutiʿi referred to him as the ‘son of the Qraydab village’ in reference to his home village in central Sudan (1986, 101). Al-Mutiʿi wanted to say that no genuine religion comes out of this unknown and ignorant village.

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of al-Muti’i to attack them revolted the Republicans. In May 1983, they criticized the First Vice-President for not taking necessary measures against the religious fanaticism and hatred directed against them. The Vice-President, probably under Nimerie’s direction or prompted by his own Sufi allegiance, detained Taha and a large number of his associates, for little less than two years for no clear charge or trial (al-Sahafa 25 June 1985; Zein 1989, 288–290). After Taha’s release in late December 1984, he issued a leaflet calling for the repeal of the Islamic laws of 1983. Subsequently, he and some of his followers were arrested in early January 1985 charged with the minor offence of inciting disturbances of the peace. Over night this petty charge was promoted to the capital offenses of undermining the constitution and waging war against the state thanks to the intervention of Muhammad Adam ʿIsa, the Minister of State for Criminal Affairs. 23 The charges took another lethal turn when the special Criminal Court of Appeal, on which sat al-Mikashfi Taha al-Kabbashi and Muhammad M. Haj Nur, took upon itself to indict and try Taha and his followers for apostasy at the confirmation of the decision of the first court. The legal backgrounds of these judges will be explained later. On January 8, 1985, Taha and his followers were convicted and sentenced to death after two brief sessions. The defendants pleaded not guilty and boycotted the court on the grounds that it was constituted under laws that violated and distorted sharia. The Criminal Court of Appeal confirmed the sentences. On January 17, 1985, President Nimerie personally broadcast his approval of the ruling to the nation at large. Taha was sentenced to death by hanging. His followers were given reprieve to recant before acquittal. Taha’s followers recanted and were spared. Their ritual of coming clean of apostasy will be discussed shortly. Taha, who was denied even the humiliation of recanting, was executed in a public spectacle on January 18, 1985 (an-Naʿim 1986, 205–206). The long arm of qadis’ justice had long last reached Taha,

23 This should not have come as a surprise to the Republicans. While Taha had been defending himself against a libel case brought by a qadi before a court in Port Sudan, the Attorney-General reconsidered the charge and added two new ones. These two charges, if pressed, could have made Taha guilty of instigation of hatred against the government and undermining the integrity of a constitutional institution: the sharia courts. The seriousness of these two added charges was such that indicting one for them required the approval of the president of the Republic. However, the two charges were quickly dropped. The Republicans took this attempt to indict them for sedition as part of the unrelenting conspiracy against them (RP, August 1975; September 1975b).

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a fugitive of this justice for little less than two decades. Sacrilegiously though, his body was buried in an unmarked grave according to a callous economy of martyrdom in postcolonial Sudan (Ibrahim 1998). From the time Abboud’s junta (1958–1964) was toppled by demonstrators who had buried one of its victims, a political belief prevailed that change of governments is heralded by the burial procession of a victim of the regime in place. Even oppositions to these regimes (and not victim families) acquiesce to this economy by not pursing the revealing of these clandestine graves even after the removal of the killers. We will discuss aspects of this economy shortly. The Recantation Field On January 19, 1985, a video of the recantation session of Taha’s followers was broadcast to the nation.24 It was a macabre scene. A dismayed viewer described it as coming straight from a Fellini film. Unarguably, the recantations were an affront to the notion of person and the worth of belief. After them religion, in whose name the recantations were carried out, disappears in thin air. God himself existed before the recantations. After them, His adversaries reign supreme. The people who watched the forced recantations have forever been haunted by the depth of the abyss people can hit in their small-mindedness. Making Taha’s disciples recant after incapacitating or killing their ustāz (teacher, as honorifically called by his disciples) was a cleansing ritual the clerics had dreamt of for three decades. The first Taha converts in al-Mahad al-ʿIlmī of Omdurman in 1960 had been ordered by their dean to denounce Taha and his views. On refusal, the students were dismissed (RP, December 1974, 77). Again, in the 1968 case, a plaintiff pleaded to the court to restrain Taha’s disciples from preaching Islam or interpreting the Qur’an under pain of persecution petitioning that they should lose their jobs and be divorced from their wives (RP, January 1969, 5). Moreover, we have already seen the extent to which the memos and petitions presented by clerics to the authorities in 1969, 1974, and

24 The videotape does not acknowledge those who put it together. However, alKabbashi, the High Court of Appeal judge, gave credit to the Minister of Information and Culture for the idea of reading the court’s opinion in a televised press conference. The judge, however, asked the information crew to send him the tape for review before broadcasting it.

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1976 were impatient with Taha’s disciples. The clerics were especially affronted by these eloquent young men and women for disrupting the discussions clerics held in mosques to advise people on religious matters by injecting Taha’s controversial and elusive concepts (Zaki 1986, 165). The 1985 trials and recantation had provided the clerics with the opportunity to literally knock some sense into these followers. They made them confess their guilt and ignorance to the world at large. Through the confession, Foucault argues, ‘the accused himself took part in the ritual of producing penal truth . . . [the confession] renders the thing notorious and manifest’ (1995, 38). The most provoking aspect of the recantations was the way the clerics represented their interrogation of Taha’s followers as an advisement session. Their ‘Advisement Council’ consisted, in addition to a silent Minister of the State for Criminal Justice, ʿIsa, of seven clerics including al-Kabbashi and Haj Nur, the two qadis of the Appeal Court and five others from the Ministry of Religious Affairs. In the recantation session, the clerics, in their capacity as learned jurists, took unappreciated pains to be seen as fellow Muslims offering their advice to the errant Republicans. They wanted the disciples to see them as a ‘religious council’ rather than prosecutors or judges. This advisement technique, however, could not even thinly disguise the powers of coercion brought to bear on the Republicans to give up their cherished beliefs and ostracize their ustāz. Nothing is said in the tape about the disciples having been taken shackled to the spectacle where their ustāz was hanged. And shackled were they even when brought to the advisement session (alSahafa 29 June 1985). To add insult to injury, the followers were forced to recant according to the clerics who wanted them to hurt their ustāz even more.25 The clerics refused the general statement prepared by the recanters in which they had taken back their views with no reference

25

The statement presented by the clerics to the Republicans to sign for their recantation to be accepted, reads as follows: In the name of God, the Merciful, the Compassionate. Praise to God the Lord of the universe and blessing and peace to Prophet Muhammad, the seal of the prophets and messengers, I . . . who was sentenced to death for apostasy from Islam, declare my penance to God and my return to Him, the Elevated, the Skillful, and I recant all the words and views that I was taught by Mahmoud Muhammad Taha, the apostate, who misled me with his ideas and made me stray away from the nation of Islam until God killed him by hanging in Kober Prison in the morning of Friday Rabi al-Thani 26, 1405 (January 18, 1985). Praise to God for blessing me with the return to his religion, his law, and the sharia of Adam, Noah, Ibrahim, Moses, Jesus, and Muhammad on whom the epitome of peace and the cream of prayers are placed. I bear witness that there is no God but

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to Taha whatsoever. Instead, the clerics presented the Republicans with the official recantation version, on whose basis the repeal of the death sentence against them could be considered, that was extremely abusive of Taha. The maddening recantation session had a method. The clerics would accept no statement from the Republicans short of condemning Taha and the unequivocal denouncement of his beliefs. Any face-saving expression, any symptoms of human decency, any ‘let bygones be bygones,’ or opening of a new page without hurling dirt on the old one, on the part of the recanters was methodically removed. Clerics adhered to their uncompromising method even at the expense of being seen begging the recanters to play along so as get it over and completed. Cajoling recanters to scandalize Taha was a paramount concern of the clerics. Mr. ʿAbd al-Latif Hasaballa, a companion of Taha for more than thirty years, argued admirably even in this nightmarish abyss between life and death, and in the impeccable fashion the Republicans were famous for, to be allowed to recant according to his own version. He was at pains to recant without blemishing the name of his ustāz. He quoted the Qur’an to argue that a man cannot be held responsible for the sins of another man (al-Kabbashi 1987, 218). Not even the Prophet, he continued to say, asked Meccan unbelievers to condemn his erstwhile opponents when they had embraced Islam (1987, 219–221). His advisers were not impressed. Al-Kabbashi, the appellate judge who reviewed and confirmed the ruling against Hasaballa, and showed up as an adviser on the panel of clerics, did not like Hasaballa’s strategy of shielding Taha. He bluntly asked Hasaballa: ‘I want you to be frank with me. What do you think now of Taha’s views?’ ‘The ustāz [the oppressiveness of the situation did not make him refer to his mentor in other than in his honorific title] passed away?’

Al-Kabbashi was rightly alarmed by this death metaphor because the Republicans allegedly believe that Taha was, or still is, the Muhammadan Messiah, as we indicated earlier, who would return to earth to fill it with justice and bounty. He promptly asked: ‘What do you mean by “passed away”?’ ‘Gone.’

Allah and that Muhammad is the Messenger of God. I stand innocent of Mahmoud Muhammad Taha’s heresies that contradicted with Islam (al-Sahafa 20 January 1985).

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‘Where to?’ ‘The Other World.’ ‘What other world’ (1987, 216).

Al-Kabbashi returned later to insist that Hasaballa should come out clean and denounce Taha whose views had been the root cause of all that was happening then: ‘Taha’s views were dismissed as heretical by all ulema and you come here to tell us that Taha is gone? Did he die or didn’t he?’ (1987, 317)

Literality was in order for al-Kabbashi to ward off even the elusive possibility that a metaphor for death would deprive him of the glory of killing a heretic just the day before. Hasaballa knew that he reached the end of his metaphoric decency and said: ‘Of course, he died.’ Al-Kabbashi was joyous for administering this literality to Hasaballa, depriving him of the benefit of semantic ambiguity. He then turned to assess the price and implications of Hasaballa’s admission by asking him: ‘Honestly, how many years did you accompany Taha?’ ‘Plenty. Maybe thirty years.’ ‘Thirty years, my! This is a time for real joy for us all for your return to the true path of Allah’ (1987, 217).

The analogy the clerics kept making on the videotape between recanting and taking a bath allowed them to present themselves as doctors promoting mental hygiene among heretic patients. Recanters were asked to perform a ritual of cleansing similar to the one dictated by religion for those polluted by the suspicious fluids of sexual intercourse or menstruation. After this purging of body, they were asked to perform ablutions and prayers in praise of the Lord. A recanter is described by the clerics as a newborn with a clean slate because his previous sins were forgiven. In this, he is on a par with a new convert to Islam—a more bountiful state than that of a repentant Muslim. In order not to miss the bliss that a recanter enjoys in this liminal state, a zealous cleric is heard asking a recanter to pray for him. Nonetheless, the recanters were not entrusted with taking their bath and performing their ablution themselves. A cleric directed a prison warden to see that these cleansing rites were performed. Not having Taha recanting in person, the executioners turned to his hanged body to force it to divulge the errant views that brought it to this tragic end. A qadi is reported to have said that Taha, egged by his Satan, had been composed during the execution spectacle until his Satan left him at the moment he had given his last breath. Abandoned

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by his Satan, the qadi said, Taha panicked. Also, Taha’s executed body is said to have turned west away from the qibla, the east; the sacred direction for Muslims living to the west of Mecca. In giving its back to the qibla, the body is made to confess its misguidedness and apostasy. In Foucault’s words, the execution and its signs ‘published the truth of the crime in the very body of the man to be executed’ (1995, 44). A follower of Taha, who witnessed the spectacle, is reported to have become hysterical. He started circling and frantically reciting, ‘only a likeness of that was shown to them’ from the Qur’an (4: 157) in which God rebukes Christians for believing that Jesus was crucified rather than had been elevated to Heaven.26 The follower apparently was a strong believer in Taha as the Mohammadan Messiah. After being incarcerated, this disciple, according to qadis, recanted and returned to the straight path of Islam (al-Kabbashi 1987, 206). Clerics saw recantations as bringing joy to the ‘people of earth and heaven’ (al-Kabbashi 1987, 214). For this celestial happiness to come, four good Sudanese Muslims had to feel small and polluted for not only being unworthy of holding a viewpoint, but also for disowning their ustāz before the cry of the rooster. Hasaballa tried as hard as humanly possible to honor his long companionship of the ustāz, but his adversaries were unrelenting in forcing him to violate him. The older the relation that was thrown to the dogs, the better. Migrating from the Post of their Discontent The political elite was too busy using Taha’s execution to shame the Muslim Brotherhood to examine Taha’s tragic death against the backdrop of the political culture of violence in the country. In holding the Muslim Brotherhood as almost the only culprit of the execution of Taha, the secularists overlooked the Manichaean politics of culture underlying his miḥna (persecution and execution for dissent). Wretched,

26 If the belief in Taha as the Mohammadan Messiah by his followers is correct as demonstrated by Shaʿrani (1988), this hysterical, circling disciple might not be merely and rhetorically attaching a Quranic verse to the evolving spectacle of the death of his mentors. According to Taha, it is the Mohammadan Messiah whom God would elevate alive to heaven although his killers believed otherwise. To argue this innovative exegsis of the verse, Taha brings in other Quranic verses and contexts to prove that Jesus died before his elevation by God. Quran, in Taha’s view, speaks of the two Messiahs in one and the same verses (RP, December 1980; December 1981).

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ignorant, subservient qadis (Khalid 1986, 117, 279; Shaʿarāni 1988) are apparently deemed incapable of doing politics—presumably a domain for the bright and modern elite. Even when qadis were carried away by politics, or vendetta, ending up killing an adversary, effendis would not dignify this somber intervention in politics as something qadis could do independently. Instead their actions were interpreted as insinuated by the Muslim Brotherhood. Their identity as qadis, which might have convinced some of them to join the Brotherhood in the first place, has never been taken into account. Although secularists identify Taha’s trial as political, they devote inordinate time to analyzing its faulty legal reasoning presumably befitting qadis’ anachronistic training and law. Qadis’ identity and politics merit more consideration than has been given so far. Although their political and Sufi loyalties are important considerations, their professional identity might provide greater insights in their politics too. Khalid touches, although tangentially, on the Judiciary politics underpinning Nimerie’s Islamism. He states in passing that a minority among the qadis thought that the application of sharia would give them the upper hand in the Judiciary (1986, 117). Unfortunately, Khalid did not follow this pregnant notion through to reveal the politics of the Judiciary underlying the drive to Islamization. Also, Sadig, the former prime minister of Sudan, saw the qadis as chosen much less for their legal competence than for blind loyalty to Nimerie (Zein 1989, 246). In fact, Hayder Ibrahim diagnoses them as psychopaths rather than political actors (1991, 132). They were summarily dismissed as Muslim Brothers who would do as the Brotherhood wanted them to do. Although Zein (1989) may sound interested in the Manichaean political identity of the qadis of Nimerie’s experiment, he evaluates their work in purely professional terms. He attributes the poor quality of justice administered during the period to ‘untrained judges’ (1989, 211–212) such as al-Kabbashi and Haj Nur.27 He identifies them as scholars of

27 Justice Fouad al-Amin’s case cast doubt on the merit of the connection Zein makes between the lack of training and the poor quality of justice in Nimerie’s court. Justice al-Amin, an ex-Muslim Brother and a veteran judge steeped in common law practice, is described by Zein as one of ‘the most notorious judges’ of instantaneous justice (1989, 224–225) before becoming the Chief Justice in 1984. In calling him a ‘technocrat’ with no clear association with any political group (1989, 232), Zein does not help explain the judge’s zeal for the instantaneous justice experiment to become its leading judge. A better explanation will result from a review of Justice al-Amin’s activities during the years of the rage for justice within the old judiciary. The judge apparently converted to a form of instantaneous justice even before it became the justice of the land. Al-Amin is

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sharia lacking in qualifications to hear cases under sharia legislation (1989, 210). Further, he views al-Kabbashi and ʿIsa, the Minister of Criminal Justice, as Sufis who took side with the Muslim Brotherhood against Nimerie in the conflict that had ensued between them (1989, 238). Thereupon, he describes them as ‘associates of al-Turabi’ (1989, 236). Further, he calls them sympathizers of the Brotherhood (1989, 235) who discredited Nimerie’s old guard by reviewing cases of corruption and embezzlement involving the top brass of that guard (1989, 236). This association with the Brotherhood sheds very little light on the motives of the qadis. For even due-paying Muslim Brothers of civil law background did not find Nimerie’s Islamic experiment to their taste.28 The common denominator in the work experience of the qadis of Nimerie’s Islamic experiment is their flight from the sharia courts, in which they had begun their work as qadis, to other more worthy careers. We have already alluded to this historical migration of qadis in Chapter 1. The three leading judges of Taha’s miḥ na, al-Kabbashi, Haj Nur, and Ibrahim al-Mahalawi, began their careers as qadis in the now defunct Sharia Division of the Sudanese Judiciary. Importantly, all of them left the Division becoming either university professors or civil judges. In October 1976, al-Kabbashi, who joined the Sharia Division in 1974, moved to Omdurman Islamic University to become a teaching assistant for two extendable years on secondment. However, he never returned to the Judiciary until Nimerie’s Islamization.29 Haj Nur also switched to academia. Persecuted by Nimerie regime in its leftist phase (1969–1971),

reported to have presided over a state security tribunal in 1979 trying black marketeers and economic saboteurs (Sudanow, October 1979). 28 Dafaʿallah al-Haj Yusuf and Hafiz al-Shaykh, veteran members of the Muslim Brotherhood and career advocates with a solid training grounded in colonial laws, whom Nimerie appointed as Chief Justice and High Court judge in his Islamic courts, respectively, had dropped out of the experiment before it turned seriously ugly (Zein 1989, 225, 221). 29 The High Judiciary Council Archive, the Secretariat 1/3/1. All subsequent stuff pertaining to personnel matters of qadis is taken from this same file in the Sudan Judiciary. Al-Kabbashi did not join the Sharia Division on his graduation in 1971. He worked as a legal consultant with the Ministry of Religious Affairs before becoming a qadi. In 1975, he got his masters from the University of Khartoum. For his Ph.D., which he got in 1981, he was sent on scholarship to Mecca. Mecca was never a destination for doctorate-seekers among the elites. It would be interesting to know why al-Kabbashi did not join the Sharia Division immediately on his graduation from the sharia law school. If the argument of this chapter is pushed far enough, one may say that he might have been dragging his feet to take the job of his discontent.

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he left for Nigeria to teach sharia in one of its universities. Interestingly, he had already experienced these difficult Manichaean crossings as a student. It is said that he was originally enrolled in the Civil Department of the Law School at the University of Khartoum, but switched to the Sharia Division and began wearing jalābiyyas—not a particularly popular thing to do then in a modern environment. Critics of Nimerie’s instantaneous justice saw al-Mahalawi’s association with, and quick rise in, Nimerie’s instantaneous Judiciary in terms of nepotism. Al-Mahalawi, infamous for presiding over the first court that sentenced Taha to death, is identified as the nephew of al-Nayl Abu Qurun, Nimerie’s Judicial Adviser and the architect of the 1983 Islamic laws. Both belong to a Sufi family that was known for its ardent support of Nimerie.30 Al-Mahalawi’s speedy promotion to province judge in 1983 is made to sound as favoritism (Zein 1989, 226). He is also identified as a Sufi completely under the influence of his cousin, Abu Qurun (Bashary 1992, 277). Nepotism aside, al-Mahalawi is also a fugitive from sharia courts. After graduating from the law school of Cairo University-Khartoum Branch, he joined the Sharia Division to leave it to the Civil Division after passing the Bar exam.31 Not even joining the prestigious Civil Division helped al-Mahalawi’s ego. As a civil judge in the context of an amalgamated judiciary (1980), al-Mahalawi was not catching up with his colleagues in promotions. In January 21, 1981, he petitioned the Chief Justice complaining that he had been sidestepped in promotion to second class magistrate. He complained that the civil judges he joined had already got it, and it was bestowed, rather belatedly, upon qadis much less senior than he in the Sharia Division. The judicial authorities, however, redressed his grievance.32

30 A college mate described al-Mahalawi as shy, always apparently in a hurry, who wore a patched dervish dress of a variety of colors (al-Ayyam 20 January 1987). Abu Qurun, his uncle and senior judge, was famous for wearing a similar dervish dress. The Chief Judge had repeatedly asked him to stop wearing it to court (Khalid 1993: Vol. 1, 623). 31 In an article written by a civil judge on the anniversary of the execution of Taha in 1999, al-Mahalawi is described as ignorant of criminal procedures for he had been hurriedly transferred from the Sharia Division to the Civil Division of the Judiciary (Muhammad H.M. Osman 1999). 32 The High Judiciary Council Archive, the Secretariat 1/3/1.

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‘Isa, the Minister of Criminal Justice, whom we have seen dangerously promoting charges against Taha, has also been viewed as a Muslim Brother. His qadi identity has never been revealed. In fact, ‘Isa is a graduate of the Sharia Department at the University of Khartoum. Perhaps to avoid the stigma of working as a qadi, he joined the law school of Cairo University-Khartoum Branch which gave better qualifications for an appointment as a civil judge, or with the Attorney-General. He chose to join the latter until his appointment as a minister by Nimerie. Clearly, he was avoiding being a qadi as one avoids a plague. The heavy one-way traffic from the Sharia Division was facilitated by the appointment of qadis with the Civil Division on passing the Bar exam. Additionally, the diversified legal education in sharia and civil law at Omdurman Islamic University made it possible for its graduates to sit for and pass the examination. In 1978, four qadis moved to the Civil Division. One qadi made it in 1979. Furthermore, a first class magistrate qadi since 1977 sat for the Bar and moved to the Civil Division in 1980. A qadi, who joined the Sharia Division after graduating from the Sharia Department of the University of Khartoum in 1973, sat for the Bar in 1981 and passed it. In 1982, two qadis were assigned to the Civil Division after passing the Bar. The amalgamation of the Judiciary in 1980 distressed these migrant qadis. Like al-Mahalawi, these ‘turncoats’ complained that their conversion to civil judges resulted in losing the seniority they had established in the Sharia Division. As a result, their compatriots, and even their juniors in the Sharia Divisions, were promoted before them.33 In their desire to join the Civil Division, qadis presented a variety of credentials for consideration in their application to transfer from the Sharia Division. Mukhtar ʿAbd al-Salam al-Qarai, another qadi of Nimerie’s courts, petitioned in April 1981 to be transferred to the Civil Division although he had not sat for the Bar exam. However, he, a first class qadi then, based his application on the training course he had taken in civil and criminal courts and in the judicial records department.34 The temptation to escape the Sharia Division must have been irresistible for this veteran qadi of sharia.

33 34

The High Judiciary Council, Secretariat, 1/3/1. The High Judiciary Council, Secretariat, 1/3/1.

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These flights and transitions from Sharia Division to Civil Division are emblematic of a colonial and postcolonial judicial policy that made work as qadis socially and professionally unattractive. As a result, ambitious and politically-minded qadis had to find job satisfaction in respect and monetary terms elsewhere. Modernists showed no curiosity whatsoever in understanding the anguished politics underlying this traffic to the prestigious Civil Division. Instead, they deeply resented the qadis’ every move to better their professional standing. The qadis’ politics of forging alliances on the basis of religious nationalism that led to equalize them with civil judges in 1967, and made their law supreme in the land in 1983, was shunned as cheap and subservient to authorities. Born on the right side of the track, Khalid, a civil lawyer, is contemptuous of the snobbish qadis for using religion to upgrade themselves at the expense of civil judges. People who are born to privilege like Khalid never accept the work of the less fortunate to subvert a privileged class as politics. In avoiding looking at their subordinates in the face, modernists anthrophormize them into archaic species. This is the manner in which Khalid describes the qadis of Nimerie’s Islamic experiment: ‘Nimerie flung the door wide open to apparitions he dug up from the clay of oblivion and anonymity to put them in commanding posts in the Judiciary. I described these qadis elsewhere as dinosaurs that broke loose from natural history museums. They have absolutely no relevance whatsoever to this world’ (1986, 279). This short temper is common with people of privilege who are stunned to see their victims rise up in arms. Notice that Khalid never questions for a second the political circumstances that heaped the clay of ‘oblivion’ on the qadis to necessitate their rescue by a despot. Qadis Never Get Right Secularists and legal scholars have been dismissing the 1985 trail of Taha as the epitome of ‘legal chicanery and political motivation’ (an-Naʿim 1986, 197). Emphasis on the legal integrity of the trial precluded studying it for what it really was: a political vendetta. The parties to the apostasy court drama were acutely conscious of this political nature of the drama. Each sought ardently and consciously over the years to mobilize the political resources at their disposal to buttress their positions. Zein has already advised that the politics of the trial should be seen in the larger context of the political culture of the Sudan (1989, 239). Because the

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1985 tragic verdict against Taha was influenced by the long-standing conflict between him and the qadis, a study of the power politics behind the trial will illuminate the colonial Manichaean organization of culture that we have seen unraveling in this book. To underscore the faulty legal reasoning of the trial, legal scholars have been painstakingly arguing that the 1968 decision of the Sharia High Court of Taha’s apostasy should not have been admitted as evidence in the 1985 court. The Sharia High Court of 1968, the argument goes, lacked the jurisdiction over apostasy according to the secular constitution in place in 1968. Legal scholars, therefore, question the admissibility of a ruling that had been the product of lack of jurisdiction, as a basis for a criminal conviction by a different court 17 years later (an-Naʿim 1986, 209).35 Whereas legal scholars rightly emphasize discontinuity to argue their case, others may find it productive to emphasize continuities, as perceived and acted upon by the litigants, to better understand the power politics—the conversion of law, power, and tradition—that led to the death of Taha. Qadis had been stalking Taha since the 1968 apostasy ruling. For qadis, the 1985 trial of Taha is merely the ‘second apostasy court’ of him. The reason for this re-run was that colonial positive law prevented the execution of the apostasy sentence of 1968 (al-Kabbashi 1987, 167). In fact, it was Taha who had kept reminding them ever since the first verdict that killing him for apostasy was above their colonial pay. During the Port Sudan trail in 1975, A Republican defendant asked a plaintiff: ‘What is the penalty for apostasy in Islam?’ ‘Execution after refusal to recant.’ ‘Why didn’t the court execute Taha in 1968?’ ‘The court had no jurisdiction to execute him?’ ‘Who denied it this power?’ ‘Colonialism.’ ‘What do you think of a Muslim working for a judicial system that abrogates part of sharia?’ ‘It is possible that he was overpowered.’ ‘Why didn’t he look for another job?’ ‘Qadis’ job will remain vacant’ (RP, Port Sudan 1975: Vol. 1, 41–42).

35 See also the High Court, Constitutional Circle, Asma Mahmoud M. Taha and Abd al-Latif Umar Hasaballah v. the Sudan Government, HC/CL/2/1986 (al-Kabbashi 1987, 243–289).

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Despite this unmistakable, long-standing political confrontation between Taha and the qadis, legal experts have been rightly, but inordinately, focusing on the legal logic of the case. To criticize the qadis for their defective legal logic, they refer to an array of constitutional and procedural articles to dismiss the 1968 ruling against Taha as inadmissible as evidence. Articles 70 and 71 of the 1973 Constitution, they argue, upheld the basic notion of justice of nullum crimen, nulla poena sa lege (no crime, no punishment at law) and no subjection to double jeopardy, respectively (al-Kabbashi 1987, 247; Kok 1996, 34–35; Sudanow, November/December 1986). Article 188 of the Criminal Procedure of 1983, they further argue, prevents trying an accused for the second time for the same crime whether he was found guilty or innocent of the charges (al-Kabbashi 1987, 247). Qadis did not see it this way. In their view, Taha’s second trial was their blessed harvest of two decades of unrelenting work to bring to justice an apostate and fugitive of their court. In not appearing before the 1968 court (which legal experts took to prove that the apostasy court lacked jurisdiction), Taha was held by qadis for contempt of court. The qadis were especially aggrieved by Taha’s long-standing disdain of sharia courts. In 1968, Taha did not even dignify the Sharia High Court, adjudicating his apostasy case, by appearing before it. The qadis had not forgiven him for this act of defiance, and remembered it when they set him up and killed him in 1985. To underline the emasculation of the sharia court, Taha dwelled on the inability of the sharia court to execute its own rulings. Instead, he argued, colonial and postcolonial laws gave that power to the civil judge; a procedure that aggrieved the qadis who fought hard to change it. To rub in the powerlessness of qadis to execute their decisions, the counsel of the defense in Port Sudan case asked a qadi, the plaintiff: ‘What would a sharia court do if a defendant refused to sign a summons?’ ‘[Aware of the snare laid in this question] It will consider him notified and begins the procedure. ‘Can it force him to come before it?’ ‘Yes, it can.’ ‘Why didn’t the apostasy court of 1968 force Taha to appear before it?’ ‘The court decided that he had forfeited his right to defend himself and went on with its business’ (RP, Port Sudan 1975: Vol. 1, 41–42).

Taha and the Republicans also boycotted the 1985 court after a brief appearance in which they denounced the judge, because he accepted to

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officiate justice under the false Islamic laws of 1983, for moral and professional cowardice. The 1985 court judge, al-Mahalawi, was obviously hurt and embarrassed by the refusal of the defendants to ‘cooperate,’ as they put it, with the court. On hearing the phrase, he did not wait to jump in saying: ‘We didn’t ask you to cooperate. This is not the business of this court. You are called before this court to defend yourself against specific charges.’

The defendants turned their challenge of the court into an act of piety. A defiant defendant said to the judge explaining his refusal to cooperate with the court: ‘I am not only innocent of the crimes ascribed to me, but also believe that in opposing the September Laws I am being the good Muslim I am asked by Allah to be.’

The judge was extremely annoyed by this defiance. He lashed back by sarcastically asking a defendant who said that Nimerie’s Islamic laws were opposed to sharia: ‘Are they opposed to sharia or Sunna (the prophet’s actions and sayings, in reference to the subtle distinctions the Republicans make between the two traditions to the dismay of their adversaries)?’ Boycotting courts of sharia did not endear Taha to his adversaries. Both Nimerie and the Appellate Judge, al-Kabbashi, noted Taha’s disdain of courts (al-Kabbashi 1987:198). In confirming the 1985 rulings, Nimerie devoted a paragraph in his televised address to castigate Taha for continually showing disrespect to rulers and judges. Taha’s Satan, he went on to say, dictated to him to even dismiss the lawyers who had volunteered to defend him in 1985. Nimerie saw Taha’s stance as running counter to his claims to civility. Also, the qadis were exasperated by Taha’s long disdain of their court. Taha, in al-Kabbashi’s view, became a habitual boycotter of courts. In 1978, al-Kabbashi said, Taha withdrew his side from a court in which the leader of the Republicans was the plaintiff. Again, Taha did not recognize the 1985 court and refused to deal with it after giving his preliminary statement (1987, 198). The qadis’ displeasure with Taha’s disdain for their court came through in a press conference al-Kabbashi held after his appeal court had confirmed the execution of Taha without the benefit of reprieve given by the first court. To a journalist who asked about the change of heart regarding the decision of the first court to give this reprieve to recant, al-Kabbashi retorted, ‘Taha has been summoned on numerous times to

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appear before courts for his heresies. He even boycotted the court that reviewed his apostasy in 1968.’ Haj Nur, the other judge on the Court of Appeal, added, ‘We waited for his recantations for seventeen years. This waiting encouraged him even further in spreading his disbelief and heresies’ (al-Ayyam 20 January 1987). The reason given by al-Kabbashi for denying Taha the reprieve to recant was because ‘he did not recant his heresies for seventeen years since the 1968 court’ (al-Kabbashi 1987, 203). Clearly, severe procedural flaws or inconsistencies did not trouble qadis. They were out to get Taha because he eluded them the first time around. Legal scholars are abhorred by Taha’s indictment for apostasy although apostasy was not a crime even in the 1983 Islamic laws according to which the court had been constituted. Further, they argue that the first court, presided by al-Mahalawi, did not charge Taha for apostasy. The Criminal Appeal Court, they maintain, founded apostasy both independently and late in the appeal process (1978, 245, 274). The political vendetta behind the 1985 trial and the execution of Taha was carefully appraised by the High Court that reviewed the trial in 1986 on the request of Taha’s family after the overthrow of Nimerie. After concluding that Nimerie’s courts were ‘vindictive’ (1987, 265), it decided for the family and declared the 1985 trial null and void. The Court, however, had a more realistic evaluation of the legal work of qadi justice than the lawyers for Taha’s family. In its decision, the High Court advised against wasting legal arguments in the face of the vengeful Criminal Appeal Court of 1985. The Constitution or the laws of the land did not bind this vindictive Court, according to the High Court, in its decision. Instead, it was preoccupied with trying the ideas of the accused inattentive to the material evidence before it. The straightforward political statement produced before the Criminal Appeal Court of 1985 as evidence against Taha, the opinion of the High Court goes on to say, could not have led to a finding of apostasy even with a stretch of the imagination (1987, 260–261, 265). The 1986 High Court also criticized President Nimerie, who claimed to have based his confirmation of the ruling against Taha on an independent study of the charges, for going beyond exercising an act of sovereignty to engage in unauthorized and counterproductive judicial work (1987, 248).36

36 For President Nimerie’s text, see al-Qahira, January 1994, 59–63. The existing videotape of the trial also carries Nimerie’s rather long and pretentious speech.

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The vindictiveness of the qadis became apparent when the 1986 case revealed the circumstances in 1985 in which Taha’s charge had been changed from instigating hatred against the government to apostasy. The lawyers for Taha’s family pointed out that the first court that tried Taha, presided by al-Mahalawi, did not indict him for apostasy. However, they showed evidence from the court’s record that the judge had been instructed to find apostasy (1987, 245). In reprieving Taha and the coaccused to recant or face execution, the judge, al-Mahalawi, in fact had found apostasy without saying it in so many words, for recanting was never a statutory punishment (1987, 270). The Criminal Appeal Court of 1985, whose qadis presumably had decided for apostasy even before the beginning of the trial at the first court, was critical of al-Mahalawi for not specifically indicting Taha and the co-defendants for apostasy (1987, 192). As a result, the Criminal Appeal Court took upon itself to charge Taha for apostasy before confirming the decision of the first court. In its judgment, it took into account the archives of the seventeen-year long miḥ na of Taha: the 1968 ruling; al-Azhar’s and the Muslim World League’s statements excommunicating him (1987, 192–204). The legal faults of the 1985 trial are inexhaustible. However, searching for them may benefit from an examination of the interplay of power and ‘orthodoxy’ that arose over the two decades of Taha’s miḥ na rendering the 1968 standing sentence of apostasy executable in 1985. The impact of Pan-Islamism in reinforcing this local orthodoxy is missed by legal scholars in their pious attempt to protest the 1985 outrageous sentence. An-Naʿim, for example, sees the fatwas from al-Azhar University and the Muslim World League denouncing Taha, and endorsed by the 1985 court, as fraudulent. For him, the fatwas should had no ‘weight in a court of law, especially since they were not adduced in evidence by the prosecution in a way that enabled the accused or their counsel to crossexamine the experts on their claims to have the competence to make that judgment, and the grounds on which it was based’ (1986, 209). We have already seen how these fatwas had been sought by the Sudanese clerics in their inexorable fight to denounce and silence Taha. Issued by authoritative Islamic institutions, these fatwas, for the clerics, were both an article of faith and evidence. Both fatwas asked the Sudanese authorities to execute the suspended 1968 apostasy sentence against Taha. The clerics were so thrilled by the fatwas that they attached them as primary evidence of Taha’s apostasy to their 1976 petition to the government asking that the man be incarcerated for life (Zaki 1986, 159–571). Similarly, the letter of support received by Nimerie from the

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two institutions after the killing of Taha, were printed on the first page of the papers of the day (al-Sahafa 23 January 1985).37 Taha was not oblivious to the seriousness of these fatwas. He was cognizant of the political weight of al-Azhar and Saudi jurists as mentors and sponsors of Sudan clerics. This meeting of minds was described by Taha as the alliance of the clerics and their ‘Azharite and Saudi teachers’ (RP, January 1976a, 29).38 His invectives against these teachers, however, did not help matters in the long run. He described al-Azhar as having been subservience to successive Egyptian rulers.39 He had no respect for Saudi clerics either (RP, April 1978, 32). He described them as stupid, ignorant, and anxious to please their government (Zaki 1986, 166). By presenting these Pan-Muslim texts as flagrant intervention in a matter that was purely Sudanese, the Republicans were appealing to national and religious sentiments (RP, February 1976b, 32). They described an Egyptian cleric, who had been justifying slavery from an Islamic point of view on Sudan TV, as insensitive to the ravages of the nineteenthcentury slavery in the country whose memory was still raw (RP, September 1981, 8).

37 Eickelman has perceptively pointed to the role of Saudi funds in forging consistent religious uniformity as one of the topics that has not been sufficiently studied (1981, 250). In the case of Sudan, Osman indicates that Saudi funds might have been behind the effective campaigns the Muslim Brothers led against the Sudan Communist Party (1989, 183). The result of such investigations will serve to test John Voll’s premise that orthodoxy (fundamentalism) is a consequence of better communication on the local and pan-Islamic levels. The improved communications of recent years in the Islamic world, according to Voll, have broken the isolation of local scholars and eroded their influence in favor of more orthodox actors (1983: 20–23). 38 Husayn Zaki, a plaintiff in the 1968 apostasy trial of Taha, published his polemic with Taha in a book in the late 1960s and in 1986. In its two editions, Egyptian religion professors, resident in Sudan when it was first published, introduced the book. The other plaintiff, Daud, published his 1987 book appending al-Azhar’s and Saudi fatwas to the book. 39 The Republicans devoted their (RP, July 1975b) to reveal the subservience of al-Azhar to native and foreign rulers of Egypt: the rector of the institution support of the British occupiers in 1914 by sanctioning a state of emergency the British imposed to prepare their war against Muslim Turkey; al-Azhar clerics blessing King Farouk, a loose and immoral ruler; signing whatever President Nasser wanted them to sign. The Republicans (August 1979) ridicule al-Azhar’s proposal for Muslim nations to have a framework of an Islamic constitution. In the title, they described the proposal as a piece of ignorant legislation that did not represent Islam. Their (September 1981) took to task Mutawali al-Shaʿrawi, a popular Azharite preacher, for his anachronistic understanding of Islam.

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Legal scholars protest the admission of the 1968 apostasy decision as evidence to support Taha’s indictment for the same crime in the second court in 1985. In their book, the decision died on the vine because it had not been executed. But the qadis never ceased mobilizing Sudanese Muslims, different Sudanese governments, and Pan-Islamic organizations to execute the old decision. Certain groups of Muslims in the country were provoked (or prodded to be provoked) by the standing ruling against Taha to take the law into their own hands. As a result, the lives of many Republicans were threatened by mobs who viewed them as apostates at large. Justifying the persecution of the Republicans by reference to the apostasy ruling was common. A lawyer of a defendant, sued for striking a Republican in Medani town, saw no big deal in his client calling the plaintiff an ‘unbeliever.’ It was the decision of the Sharia High Court itself in 1968, the lawyer argued, that the Republican leader was an apostate (RP, December 1977, 17). The standing ruling of 1968 made the Republicans a fair game. As early as 1974, a mob stormed the Graduates’ Club in Medani town where Taha had been giving a talk (PR, August 1975, 14). Furthermore, a mob in Kosti town in 1976 attacked a team of Republican activists after a sermon given by a teacher of religious sciences inciting people to kill them (PR, July 1975a, 13–14). Mobs also attacked and threatened the Republicans with knives and sticks during a discussion circle they held in a mosque in the town. Finally, a group of protesters scaled the walls of a club where a Republican lecture had been in session, and shouted, ‘Death to the Republicans, blood will flow tonight’ (July 1975a, 25–27). Mobilization of Muslims by the clerics was afoot to stop the Republicans from preaching religion. The effectiveness of this popular mobilization is evidenced by the petition signed by 33 dignitaries and clerics of Kosti town condemning the Republicans for their heresies (July 1975a, 30–32). Earlier in Medani town in 1974, a preacher blamed worshippers in a mosque for not rising up to protect religion from the abuse heaped on it by the Republicans. A Republican who denied the charges was attacked in the mosque and his clothes were torn (July 1975a, 14–15). Mobs were once more assembled by clerics in Port Sudan to disrupt Taha’s lectures in the city in 1974 (July 1975a, 17–18). No wonder that the 1976 petition of the clerics and Sufi leaders declared that the blood of Taha, the apostate, was hadar (lit, wasted, no legal consequence will be suffered by the one who kills him) (Zaki 1986, 168–169). Having experienced these mob outbursts, the Republicans took this clerical

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instigation rightly and seriously as a license to kill them (RP, February 1976a, 20). To appraise the 1968 decision as a serious threat to the life of Taha and his followers, one needs to look at the textual and preaching strategy the clerics used to agitate people against the Republicans. Humiliated by the unexecuted decision, the clerics kept stalking Taha. They instigated Muslims to take actions against the Republicans by shaming them for not putting Taha’s heresy to rest. The clerics spewed traditions attributed to the Prophet on the killing of apostates. So much so that the assaults on the Republicans in Kosti town were set in motion by a tradition attributed to the Prophet licensing such killing. A preacher in the town kept administering this tradition to his audiences. The tradition draws a picture of errant young men who would appear at the end of time. Worshippers in the town could hardly avoid making the association between the godless young men of the tradition and the Republicans, who consisted largely of college students, in terms of their youth, zeal, and allegedly heretical views. These young and rash men, according to the tradition attributed to the Prophet, would pray, fast, and recite the Qur’an like the rest of us. But their deceitful recitation would never go deeper than their throats. The tradition enjoins Muslims to kill them if they crossed their paths. The great reward of God, the tradition enjoins Muslims, would be bestowed on the killers (RP, July 1975a, 46). The Republicans, as sullied by the clerics, were cut for this tradition. No wonder some Muslims in Kosti were up in arms against them. In court, the preacher, sued by the Republicans for fomenting assaults against them, denied that the Republicans were his referent. He excused himself by saying that the errant young men he had meant were the Bahais and other misguided sects in Islam. He also denied that he had asked people to take the law into their own hands. Rather, he contended, the killing of these wayward Muslims is the responsibility of the ruler. Nonetheless, the court found him guilty because none of the sects he indicated were even close to Kosti when he had been propagating the tradition. The judge decided that the Republican teams were Kosti’s lot of ‘heretics’ in those days (July 1975a, 66–68). The clerics turned the demand to execute the ruling against Taha into a call for jihad. The public was shamed by the clerics for living with apostates. Muslims were made to view their inactivity toward the wayward Republicans as a deficiency in ghaira (guts in jealously protecting a cause) for Islam. The government was asked by the 1976

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petition to honor Muslim indignation by silencing Taha. Otherwise, the memo warned that Muslims, provoked by allowing an apostate to get away with the crime, would take the law into their own hands and put the apostate’s heresy to rest (RP, December 1974, 90). The clerics acted upon their premonition by calling upon Muslims to begin the witch hunt against the Republicans. An inciter outside a club in Kosti, where a Republican lecture was in progress, exhorted the people around to disrupt the event saying, ‘Why are you standing like this? Storm the place and disband the lecture. What is going on there is heretical and the people spreading it are unbelievers’ (RP, July 1975a, 81). An instigator in another situation prodded people against the Republicans who had been selling their books to the public, by saying, ‘Get them for the Prophet’s sake. Are your hearts drained of the love for him? Are you without a ghaira for the religion?’ (July 1975a, 87). When an instigator reached the podium where a Republican was giving a talk to an audience, he struck it, and said, ‘The Prophet told us to change munkar (evil doings) by wishing it away in our deep heart, protest it in words, or use force to stop it. And I am here to do all these things combined’ (July 1975A, 81). Another inciter was beating a Republican, calling on people around to get the others, ‘Sons of bitches. I will get you today. It is all jihad in God’s way. Get the rascals.’ The mob attacked the Republicans throwing rocks at them, tearing their books apart, and shouting, ‘Shame on you!’ (July 1975a, 86). Obviously, the fine points of law legal scholars take against the qadis were of least concern to the qadis. They were out to get Taha, who was not only a fugitive of their justice, but used his ‘ill-gotten’ freedom to ridicule their court and profession. Elites’ Delusions: Genes and Tolerance Various other factors led to the disinterest shown by scholars in the Manichaean drama of Taha’s miḥ na. Besides the inordinate emphasis on the flawed legal logic of Taha’s trials, Sudanese scholars and activists originally failed to be properly vigilant when this drama had been unfolding. In believing in the intrinsic tolerance and goodness of the Sudanese, these elites did not come to grips with the bigotry underlying Taha’s miḥ na. Taha’s death shook this belief to the roots and threw the elites into a state of denial of this heinous crime. Scapegoating comes naturally to a community in this state of shock. Moreover, this disinter-

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est in interrogating the death of Taha beyond identifying culprits stems from a self-serving economy of martyrdom in postcolonial Sudan in which bodies have been dispensed with to accentuate the basic goodness of a cause. Investigating the death of a martyr apparently casts doubt on his or her sacrifice. The northern Sudanese elites, who claim a dubious civility and political tolerance, have been in a state of denial that the tragic death of the old reformer could have been an act their culture is capable of executing. This heinous crime belied their claim of a genetic generosity. This foundational myth of primordial tolerance (Gasim 1990) stems from certain representations of the history of the Arab and Islamic conquest of Sudan in the fourteenth century. By discounting the element of power and coercion in this invasion, historians saw it rather as a ‘coming’ to the country (Hasan 1967) implying a process of peaceful incorporation into the Sudanese landscape. This gracious syncretization of body and culture, theses elites argue, imparted a basic liberality to the politics of the northern Sudanese. Based on their belief in this primordial generosity, northern Sudanese elites entertain a lingering, but rarely articulated, notion that the nightmarish 1985 killing and recantation fields were acts even the maverick Nimerie, as one of their own, was incapable of stooping so low to commit. Neither the defendants, nor the people at large, deluded by this pious belief of liberality, thought that Nimerie and the clerics would carry out this heinous crime against a man of ideas. This pious belief in genetic tolerance persists, and is systematically preached, despite mounting evidence to the contrary. This negative evidence is habitually dismissed as a deplorable exception to the prevailing generous ethos of the northern Sudanese. Scapegoating the Muslim Brotherhood, whose origins and practice have been constantly traced to the ‘terrorist’ Egyptian Brotherhood of the 1940s, was one of the techniques the elites adopted to explain away the violence permeating Sudanese political culture. Politicking, in what increasingly became elite internecine wars for power, might account for the lack of curiosity secularists have shown in interrogating the array of forces and interests behind the execution of Taha. The execution of the man was rather used to shame the Brotherhood out of political existence for killing an elderly, peaceful Muslim reformer. The use of Taha’s slain body to hammer in the cause of pluralism, which the Brotherhood has flunked, is of one piece with the established economy of martyrdom in postcolonial Sudan in which bodies are disposed of to underline the truthfulness of a plethora of

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contending causes in the country. This callous economy arose in the circumstance of the collapse of Abboud’s junta (1958–1964) after the burial procession of one of its victims. Both governing juntas and their opposition have been contributing to this insensitive economy. The former became sacrilegiously careful to bury their political victims in secret graves lest their funerals erupt into revolutions. The latter turned this specific circumstance of 1964 into a belief (or a superstition rather) that change of military regimes is heralded by the burial procession of a martyr. In pursuing this belief, the tactics of the opposition forces became extremely reckless in disposing of bodies to bear out the correctness and ultimate triumph of the opposition’s cause. Two aspects of this economy are especially disheartening. First, the opposition’s deadly silence and inaction regarding uncovering the secret graves of its martyrs even when political changes made such an enterprise possible. The statement on rehabilitating Taha on the first anniversary of his death in 1986, after the removal of Nimerie’s regime, was silent on the recovery of his body (al-Sahafa 22 December 1985). Even an institution of the power of the High Court would find the undertaking of uncovering the secret graves daunting. After ruling in 1986 that Taha’s trial in 1985 was null and void, the court dismissed the petition of the plaintiff, Asma, Taha’s daughter, to investigate the circumstance of Taha’s secret burial and return his corpse to be buried by the family. Even before investigating the indicated circumstances, the High Court decided that it was almost impossible to find the corpse of Taha that was ‘secretly disposed of according to a clever plan’ (al-Kabbashi 1987, 270–271). This physical abandoning of the body of Taha has been compensated by excessive use of his body as a political symbol. Taha’s death anniversary, enshrined as the day for human rights by the Arab Human Rights League, turned into a ritual of purging body politics of the malign Muslim Brotherhood. Second, criticizing Taha’s writing is seen as dishonoring him. Taha Ibrahim confesses that he did not publish his critique of Taha’s thought lest he would tarnish his memory (al-Rai al-Akhar, January 1996). Hayder Ibrahim, who pioneered this critique on leftist grounds is currently engrossed in the various genres of eulogy of Taha to put the Brotherhood to shame (al-Ayyam 18 January 1991).40

40 Ibrahim published his critical writings in the cultural supplement of al-Sahafa in the mid-1970s and in al-Azmnia al-Arabiya, 156 (January 1987).

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The perfect expression of this reckless disposition of bodies to prove the correctness of a cause or to effect political change, is the following statement given by Muhammad Ibrahim Nuqud, the Secretary of the Sudan Communist Party, to a question on the death of Taha: ‘I would say that Taha is more honorable and piously honest than those who tried and executed him. His courage facing his executioners recalls the steadfastness of other Sudanese heroes like Wad Haboba. 41 Verily, Taha is a legend. He could not have served the Republican idea better had he died of natural causes’ (al-Ayyam 28 May 1985). For someone who had lived in hiding more than one third of his life, and was yet to build a constituency for socialism, this theory on death as the test of the worth of ideas just does not add up. Needless to say the string of communist martyrs from the ranks of Nuqud’s party do not corroborate his statement. Moreover, the disbanding of the Republican group since the death of Taha disproves Nugud’s optimism about the spread of Taha’s ideas. In their emphasis on the responsibility of the Muslim Brotherhood in killing Taha, secularists overlooked the merciless role played by the clerics in this tragedy by forcing Taha’s followers to recant their beliefs and denounce their teacher: Taha. This public humiliation of the Republicans by the clerical class remains an understudied aspect of power and orthodoxy. Scholars paid no attention to these recantations even after another event of confessions in 2001 in which Justice Abu Qurun, Nimerie’s Judicial Adviser and the behind-the-scene’s organizer of the execution of Taha, was made to publicly come clean of his alleged Shia beliefs dismissed as heretical in a Sunni country. Viewed in the light of other recantations in Muslim countries like Iran (Abrahamian 1999), these confessions in Sudan, revealing the disciplinary powers clerics have wielded in the country, pose the question of theocracy and secularism in contemporary Islam in line with novel notions suggested by Bernard Lewis. Muslims, he seems to argue, can no longer claim that secularism is a purely Christian concern, and not native to Islam. He concedes though that secularism, the separation of religion and political authority, ‘is, in a profound sense, Christian’ (2002, 96). Whereas in Christianity God and Caesar coexist, he continues to say, God is sovereign in Islam and Muhammad was, so to speak, his

41 Wad Haboba was a follower of the Mahdi who led a revolt against the British in 1908, ten years after the conquest of the country. His trial and execution made him a symbol of unyielding resistance to colonialism.

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own Caesar. He goes on to say that clericalism grew in Christianity out of the long struggle of Christians against political authority, and the ‘Church’ became a unique institution ‘with its own laws and courts, its own hierarchy and chain of authority’ (2002, 98). In contrast, Muslim men of religion, he argues, are only clergy in a sociological sense rather than a theological sense (2002, 99). Although Muslims had their religious disagreements that led to strife and repression, he adds, these conflicts barely compare to Christian schisms, reformations, and the bloody religious wars that caused Christians to engender secularism as s solution to the state/church struggle (2002, 103–104). But Lewis suggests that this ‘absence of native secularism’ (2002, 100) in Islam is going to change. He indicates that religious hierarchies began to develop in Islam in recent years ‘under unavowed and no doubt unperceived Christian influence’ (2002, 100). A religious ecclesiastical hierarchy with territorial jurisdiction developed in Ottoman Turkey in imitation of Christians, or in response to their influence. He continues to say that the ayatollahs of Iran, a dramatic evolution of a religious hierarchy, have no precedent in Islam. Thanks to them Iran is already endowed ‘with the functional equivalents of a pontificate, a college of cardinals, a bench of bishops, and especially, an inquisition, all previously alien to Islam’ (2002, 109). With the rising religious hierarchies and disciplines, Lewis argues, secularism might no longer remain a Christian disease. It may prove to be a Christian remedy to Muslim countries that have caught the disease of Europe (2002, 116). Conclusion The tragic death of Taha puts in sharp relief the Manichaean geography of the former colony. We have seen how this geography constituted the vendetta that led the qadis to kill, and the passion for Taha’s martyrdom. Both Taha and the qadis invested in the polemic a contested history of colonialism. Taha took to heart the accusation of clerics, a cultural redundancy anyway, of collaborating with the colonialists. His firsthand experience fighting them to preach his nationalist message gave him the moral authority to keep rubbing in the qadis’ shame. The qadis were no less anti-colonialists than Taha. Collaborating with colonialism was sanctioned by religion as a last resort to protect Muslim personal law and pieties from being polluted by powerful invaders. Qadis were professionally insulted by Taha’s attack on them at a time when they had

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been lobbying allies to bail them out of the professional humiliation colonialism and civil judges subjected them to. The qadis and Taha were locked in an unforgiving Manichaean drama of right and wrong, truth and falsity, resistance and collaboration, reform and conservatism that led ultimately to a death of a fine man who left the nation anguished, ashamed, and confused. The Manichaean structure of the postcolony proved to be constant, unforgiving, and lethal. The conflict between Taha and the clerics that went on for almost two decades had never been mediated, softened, or resolved because the nation, held hostage to its Manichaean delirium, was robbed of the capacity to imagine itself out of this colonial gridlock of tradition and modernity. None of the national constituencies was neutral or disinterested enough to intercede or help to diffuse this incessant conflict. The nation in its entirety was mobilized on one side or the other. Each single category was investing in the combat, co-opting it for its specific goal, and thus fuelling the fight until its bitter end. We have already seen how both presidents, al-Azhari and Nimerie in 1968 and 1983, respectively, resorted to various alliances with the qadis and their law to take it out of the secular, unruly Civil Division. They had found a seam in the fabric of the state and they worked it.

CHAPTER SIX

GROWING UP IN A QADI’S HOME: HASAN AL-TURABI AND HIS THEOLOGY OF MODERNITY The birth of this chapter on the theology of Hasan al-Turabi, the leader of the virulent Islamic revival in Sudan, illustrates the versatility of the Manichaean organization that permeates the societies which colonialists had left quasi-developed. Although I have had a clear idea of the chapters in this book since its inception in the late 1980s, this chapter on al-Turabi was not originally on the radar of my research plan. However, its relevance to my work became apparent after an aside I made in 1993 at the African Studies Program of Northwestern University during a presentation of an earlier draft of Chapter 1. In discussing the Manichaean set-up in colonial education in Sudan, I stated that ʿAbdalla al-Turabi, Hasan’s father and a qadi with the Judiciary, was the first exception to the British rule not to appoint graduates of alMahad al-ʿImi to government service. Unrehearsed, I continued to say that growing up in a qadi’s home in colonial Sudan might shed light on the religious ideas and practice of al-Turabi. In toying further with this aside, I wound up writing this chapter. None of the scholars of Islamic renewal in Sudan has considered the explanatory potential of the fact that al-Turabi, the controversial leader of this renewal, was born to a qadi in 1932. To better understand his religious experience, this chapter will examine how growing up in a qadi’s home, whose colonial disabilities were explored in depth in the previous chapters, shaped his perceptions of Islam and modernity in postcolonial Sudan. This chapter will reconstruct al-Turabi’s religious experience to better understand the imagination and politics of his movement. As a son of a qadi, born on the wrong side of the Manichaean divide, al-Turabi, it will be argued, must have been traumatized by the colonial emasculation of his father and home. In grounding politics in religion, al-Turabi, it will be discussed, appropriated Islam from impotent clerics who, irrespective of their personal beliefs, allowed Islam to recede from public life. Al-Turabi was born on the first of February 1932 in Kasala town in eastern Sudan to a qadi family (al-Mithaq al-Islami 28 April 1965) with

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a lineage of clerical, Sufi and Mahdist tradition that goes back to the seventeenth century.1 Writings about him invariably assume or suggest that his Islamic renewal is by and large a continuation of this family’s tradition (Bashary 1992; Hamdi 1998; Osman 1989; el-Affendi 1991; Moussalli 1994; al-Turabi 1978, 1981; 1992b; 1992c). Biographers rightly point to the fact that his family of Wad (son) al-Turabi village on the Blue Nile south of Khartoum has a long tradition of teaching Islamic sciences and practicing Sufism (Abdalla 1996; Imam 1995; Miller 1997, 185; Moussalli 1994, 52; Muhammad 1993, 45; al-Turabi 1992c, 49). The impact these writers apparently attribute to this family background diminishes al-Turabi to a mere bearer of a tradition. The traditionalization of al-Turabi, in other words, understanding his religious reform as conforming to a family vocation, takes the source and meaning of his reform for granted, and denies him a presence in and capacity for modernity. Both his followers and detractors are accomplices to this traditionalization of the man, albeit with different objectives. His followers prefer to see him as part of a deep-seated religious genealogy because this grants him, as a graduate of modern schools, the authority to engage in theological discussions. His detractors acknowledge his impeccable Western credentials including studies at the University of London and the Sorbonne between 1955 and 1964, but many deride his contact with modernity as superficial. For them, al-Turabi is a renegade who turned his back on his Western education to engage in an intellectual malpractice: politicizing religion. Kok finds it difficult to believe that the intellect that produced a PhD dissertation, ‘heavily shot through with Cartesian logic and August Comte’s positivism,’ could seriously accept the dogma and assumptions of traditional

1

For a biographical note see his web site at . Some of the biographical synopses about al-Turabi are not careful about either identifying his place of birth or getting the spelling of the name ‘Kasala’ right. His birthplace is said to be Wad al-Turabi (Kok 1992, 185). However, Wad al-Turabi is his family’s ancestral home, as we will discuss shortly. Kasala itself is variously and wrongly spelt as ‘Kassla’ (Hamdi 1998, 1; Miller 1997, 184), ‘Ksla’ (Nugent 1995, 77), or Kasaala (al-Turabi 1992b, 49). Lack of rigor in writing this synopsis is rife. Even al-Turabi’s first name is usually wrongly rendered ‘Hassan’ rather than ‘Hasan.’ Moreover Alex De Waal describes al-Turabi as having been exiled to Saudi Arabia where he recruited educated Sudanese emigrants and workers to his movement (1994, 48). Al-Turabi was never exiled anywhere.

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Islam (Kok 1992, 185).2 At best, al-Turabi is represented as irreparably torn between Islam and Western culture. Ibrahim traces this duality to the time al-Turabi spent in a colonial school pursuing a modern career. Europe, as both a temptation and threat, suggests Ibrahim, colonized his intellect.3 Al-Turabi, he argues, exudes Europe in languages, dress, and political skills in mass mobilization, but he loathes it as a tradition of rationality, liberalism, and freedom (1996). Other detractors from within the Islamic movement criticize al-Turabi for exuding too much modernity to their liking, denouncing him as a secularist in Islamic garb. In this chapter I will discuss al-Turabi’s theology as it bears on tradition and modernity, based on his numerous pamphlets and books written mostly in Arabic.4 As he reserves his most intimate insights on this theology for his interviews, I also rely on interviews, including my 1996 session with him, to bring out the politics of this theology.5 Unlike his critics, who picture him sitting ‘astride modernity and tradition’ (el-Affendi 1991, 179; Kok 1992, 186). I will argue that al-Turabi is at home in both ‘tradition’ and ‘modernity’ as he understands the terms. Al-Turabi’s theology of modernity is not a mere synthesis of tradition 2 Al-Turabi’s dissertation is entitled ‘States of Emergency in Constitutional Jurisprudence’ (Hamdi 1998, 2; Kok 1992, 185). He earned it from the Sorbonne in 1964. It is catalogued under ‘Dafaʿalla’ rather than ‘al-Turabi.’ I am grateful to Mohammed Nagi for locating and finding it. Hasan Musa kindly provided me with a subtle overview of it in Arabic. In an exchange on the Sudan-List on the internet (16 May 1998) al-Turabi is reported to have said that the DES degree he got from the Sorbonne is equivalent to a diploma or Masters in the USA, and that its holder should not be called ‘Dr.’ This exchange came on the tail of the news that al-Turabi had received an honorary degree from Yolinskove University in Russia for his scholarly contribution in the humanities (5.12, 1998). The majority of the subscribers to the list, who hate al-Turabi, dismissed this honor as ‘pure Soviet communist hangover’ (13 May 1998). On May 15, 1998, a member of the list suggested that the degree might be part of a package deal concocted by a Sudanese with connection to the Russian Mafia, who had been a broker of the interests of al-Turabi’s regime in Russia. 3 Ibrahim makes the interesting point that Ayatollah Khomeni, who had never set foot in a modern school, would have never accepted to come before a committee of the American Congress and swear to the truthfulness of his testimony as al-Turabi did in 1993. His political rhetoric aside, Ibrahim argues, al-Turabi cannot afford to turn his back on the West (1996b). 4 For a succinct summary and appraisal of some of al-Turabi’s writings in English see el-Affendi (1991):152–180. 5 Al-Wasat, an Arabic weekly from London published the most interesting interview with al-Turabi on February 22, 1999. In it, he talked about his childhood and education. The interview was accompanied by pictures published for the first time of him as a very good-looking college student and graduate student at London University. A picture of his recent visit to his old primary school was also published.

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and innovation as suggested by el-Affendi (1991, 179). In fact, he seems not to be concerned with the dichotomy of tradition and modernity itself.6 Islam, for him, is not a tradition that helplessly second-guesses its worth in the face of transient realities such as modernity. Islam, al-Turabi argues, not only finds nothing in modernity with which to quarrel, but is divinely endowed to humanize these realities, bless them, and harness them for a more intimate worshipping of God. In short, his theology is about the fusing of the traditional and the modern. Al-Turabi has the utmost respect for his family’s heritage and the subtle ways it has influenced his career as a religious political activist, but he critically revisits and delegitimizes Sufis, Mahdists, and clerics as inadequate to address the challenges of a modernity that put the state at the center of human life. The Sufists, who organize Muslims around the purity of beliefs and rituals, are, in his view, too withdrawn from the state to tap its potentials in a world where the state is indispensable to religion. The millennialism of the Mahdi, that is, the wait for the ‘Guided One’ believed to come at the head of each Muslim century to revive the religion, strikes al-Turabi as procrastination. The clerics, whose origin he traces to the unfortunate divorce between state and religion in early Islamic history, are intruders who should never have existed. On the other hand, Al-Turabi does not accept the claims of effendis, the name given to civil servants and other graduates of modern schools in Sudan, as the custodians par excellence of modernity. For him, their acceptance of colonialism, the armed extension of modernity as described by Ashis Nandy (1983, xiv), made them unable to interrogate modernity as Muslims. In their disbelief in Islam, this class of influential state functionaries has severed all connections with their Muslim ‘subjects’ and equated modernity with the secular, nationalist, and socialist regimes of the postcolonial era. These elites, he suggests, have been too influenced by colonial definitions of modernity to realize that, in Peter Taylor’s words, ‘there are different modern times and different modern spaces in a world of multiple modernities’ (1999, 12). A Historical Background In this section I will describe al-Turabi’s view of the religious tradition of his family. In addition to his general appraisal of his people’s dex6 This may be an instance of an interrogation of ‘tradition’ and ‘modernization’ recommended by Cooper and Stoler as we indicated in the introduction.

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terity in molding tradition, I will discuss at length the life and legacy of Hamad al-Turabi, the lineage founder in the seventeenth century, whose deep Sufi experiences led him to claim to be the Mahdi. I will also examine the career of his father, ʿAbdalla al-Turabi (1891–1990), a qadi, or sharia judge, for the British colonial administration. His father’s experience as a cleric in a colonial judiciary that relegated sharia law to a humiliatingly inferior position in relation to modern, civil law buttresses al-Turabi’s perspective on tradition in two significant ways. First, it makes his point that colonial clericalism, as family jurisdiction divorced from the business of the state, was only one example of the longstanding tradition in Islamic clericalism of separating sharia from state politics in order to safeguard personal piety. Al-Turabi suggests that clericalism is therefore disqualified from bringing Islam to reckon with modernity. Second, he uses his father’s experiences to question the ability of the secular effendis to implement a modernity in which Muslims would feel at home. Al-Turabi does not view his village or lineage as ‘traditional’ in the sense that others use it in claiming the influence of cultural traditions in his life. When I interviewed him, he described his people as adept at forging tradition rather than submitting to its alleged imperative. He described them as ‘free’ and open for change. These are not the traits of blind loyalties. In Sufi affiliation, the villagers started as Qadriyya followers (Trimingham 1965, 217–222). Later, in the early nineteenth century, they switched to the newly introduced Khatmiyya order (1965, 231–235; Karrar 1992, 55–102). A popular Sufi madḥ a (praise song) for a Khatmiyya holy man was written by one of al-Turabi’s ancestors (al-Mithaq al-Islami 28 April 1965). However, when the Sudanese Mahdist revolution broke out in 1881, his people fought on the side of the Mahdists to the chagrin of the Khatmiyya, who had opposed the Mahdi unrelentingly. Al-Turabi’s grandmother on his father’s side died after her husband was mobilized by the Mahdist troops. Her grave is walking distance from where her grandson, who has been married to the great granddaughter of the Mahdi since 1961, lives now.7 In our interview, al-Turabi remembered those of his kin who returned to

7 The marriage was frowned upon by his people, who have affinities with the Khatmiyya group, the archenemies of the Ansar Brotherhood, and by his wife’s prestigious family, who did not want to be seen marrying into a Khatmiyya family. Al-Sadig, al-Turabi’s brother-in-law and currently a staunch political foe, was instrumental in securing his father’s approval. See his interview in al-Wasat (22 February 1999), which was translated into English on Sudan-List, 23 June 1999.

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the village after the defeat of the Mahdist state in 1899, holding firm to their belief in the Mahdist cause. Yet he added that some found it convenient to switch back to Khatmiyya, since colonialism showered the Brotherhood with political favors. The Name of the Father: Hamad al-Turabi of the Seventeenth Century Al-Turabi’s reading of the life of the founding father of his religious lineage, Hamad al-Turabi (1639–1704) is unconventional. Whereas emphasis is correctly laid on Hamad’s Mahdism and Sufism, al-Turabi, in his interview, is inclined to see him rather as a political activist motivated by a religious sense of righteousness based on fiqh (jurisprudence). Yet Hamad’s brazen Sufism comes out in the oldest biography extant, al-Ṭabaqāt, a biographical dictionary devoted to the life of saints, clerics and poets in seventeenth- and eighteenth-century Sudan.8 In this biography, he is represented as a lucid Sufi with a remarkable self-restraint, if not self-abuse, who switched from teaching fiqh to practicing a strict Sufism almost overnight (Hasan 1971, 161).9 The scene of his exit into Sufism and the regimes of starvation he subjected himself to, is one of the most moving episodes in the entire book. He is described as storming the Sufi path deaf to a crying and imploring chorus, consisting of his three children and his slave woman, organized by his wife to bring him to his senses (1971, 161–162).10 We owe the name ‘al-Turabi’ (the-

8 Exists in Kitāb al-Ṭabaqāt fī Khūṣūṣ al-Awliyya wa al-Ṣaliḥ īn wa al-ʿUlama wa al-Shuʿara (Biographies of Saints, Holy Men, Jurists, and Poets in Sudan) written by Muhammad al-Nur Dayfallah (d. 1809). Ibrahim Sidayq and and Daud Mandil published two editions of the book in Cairo in 1930. Yusuf F. Hasan meticulously edited a number of the existing manuscripts and published them in 1971. 9 His abrupt decision to follow the Sufi path surprised his closest student. The student came one morning to continue his lessons on Khalil, a fiqh manual prepared by Khalil, a scholar of the Maliki School. Hamad dismissed him saying, ‘Khalil and I have parted ways until the day of judgment’ (Hasan 1971, 161). His regimes of disciplining his body caused him extreme thinness, which earned him the name al-Naḥ lān (the Thin). Al-Turabi’s own striking thinness made a writer recall the similarity between the patriarch and the grandson (Yasin 1995). Perhaps this likeness to the patriarch crossed al-Turabi’s mind when he made the remark about the role genetics plays in cultural inheritance in the interview I had with him in 1996. 10 He advised his wife to have a divorce in order to remarry his cousin saying, ‘I have been stripped of human temptations but his cousin was still young and had the seeds to bring forth children’ (Hasan 1971, 163). This episode from the life of the patriarch echoes in his great grandson’s life. Al-Turabi, it is said, asked either to be released from a long preventive detention in 1971 or be allowed him to see a marriage registrar in

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down-to-earth-one; the ascetic) itself to the harsh regimes by which the ancestor overcame his bodily desires. Al-Turabi’s ancestor twice announced himself as the awaited Mahdi in the best tradition of Sudanese Sufism that produced the Sudanese Mahdi of the late nineteenth century. He made his first announcement during a pilgrimage to Mecca, where he was subsequently beaten and incarcerated by the authorities. The second time, he sent a disciple to Sennar, the capital of the Funj Kingdom of Sudan (1504–1821), to assert his claim as the Mahdi. Authorities killed the messenger, and his body was dragged through the streets (1971, 164). The aborted Mahdisms of this ancestor were apparently the radical expressions of his outspokenness on matters of religious education and politics. He was famous for his passion to provide uninvited advice as an act of faith. A line attributed to him for his passion to speak his mind is: ‘Do I die of this craving to giving advice whose force is ripping my liver apart?’ (1971, 168). Al-Turabi has no place for Sufism and Mahdism in his enterprise of Islamic revival. This may explain why he emphasized, in the interview, the social dynamism of his ancestor’s practice rather than its ideological garb of Sufism or Mahdism. This ancestor, in al-Turabi’s view, was an activist for whom religion is a lively force for social change. To argue his selective view of his ancestor, he used a popular phrase about his forebear uttered even now by people overwhelmed by helplessness: ‘Wāqiʿ ʿalai wad al-Turabi’ (‘I seek refuge in the sanctuary of the son of al-Turabi’). To explain this phrase al-Turabi recapped the stories in al-Ṭabāqat about the Herculean military and spiritual energies his ancestor Hamad al-Turabi unleashed to defend Muslims who had taken refuge in his sanctuary against the outrageous taxes and their harsh collectors. His stamina and passion to deter the state from harming these Muslims earned him the epithet ‘shāyib al-ṣufiyya abū saman fāyir’ (‘the grey beard [the elder, the dean] of the Sufists whose poison simmers’). Matters high on the agenda of his own religious praxis determine alTurabi’s interest in his ancestor’s religious experience. Whereas biographers may take al-Turabi’s religious praxis as replicating this ancestral

order to divorce his wife. Sharia, he pleaded, does not condone such a long separation between spouses.

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legacy, al-Turabi is not averse to inventing a tradition to suit his unique interest in bringing religion from seclusion to bear on social change. Qadi ʿAbdalla al-Turabi (1891–1990): The Counter-Effendi Al-Turabi’s father, ʿAbdalla, was a qadi of the Sharia Division of the Sudan Judiciary, which he had joined in 1924. As a son of a qadi, al-Turabi grew up under colonialism with the restraint of Islam as a family experience. The colonial judicial, educational, and personnel policies that subordinated the Sharia Division to the Civil Division in the dual colonial Judiciary, and degraded the qadis and their courts, have already been noted. As the son of a qadi, born on the wrong side of the colonial track, alTurabi witnessed at close quarters the colonial emasculation of his father, home, and tradition. At a young age he saw firsthand the Manichaean worlds of colonialism in which a dispossessed native space such as the qadi’s court had been pitted against a merciless modern space such as the civil court. Although al-Turabi’s indebtedness to his father, the qadi, is heartfelt, he is outspoken about the scars this Manichaean organization of the colony left on his body and mind. His candid recognition of his childhood suffering under his father’s educational regime, are rarely acknowledge by his biographers. In forestalling the suspicious, ‘pagan’ education colonialism dished out to his son in modern schools, his father used his son’s extra time in the afternoons and during the summer vacation to introduce him to the Islamic sciences. Growing up in the qadi’s home, al-Turabi was not at all pleased by this redemptive education. He told John Voll that, as a child, he could not wait for the end of the summer vacation so that he could resume government education with his peers and lessen the time assigned to home education.11 In our interview, he complained that his constant studying prevented him from playing soccer, his favorite sport. Al-Turabi’s biographers describe his home education purely in terms of his introduction at an early age to seminal books and tracts of Arabic culture and Islamic science, which his peers in modern schools would never have read. Biographers underline the competitive edge this home education granted al-Turabi. His detractors consider this education to have sealed his future life as an Islamic actor. To his supporters, this 11 Personal communication at the annual meeting of the Sudan Studies Association, Villinova, PA, 1996.

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education was an early blessing and enlightened him as to the right path for his adulthood. This home education, writes Abdelwahab Osman, ‘would have qualified him to be one of the ulema like his father, if he had not gone to the state school’ (1989, 449). Another supporter saw this education as underlying his Sufi patience in pioneering an insightful calling for Islam based on a sound knowledge of sharia (Abdalla 1996). Conceiving of this education in celebratory terms denies al-Turabi the right to his childhood, as he perceived it. He made it clear in our interview that he wished he had not gone through this education made necessary by the qadi’s distrust of colonial education. Al-Turabi’s childhood home was the lone qadi residence in a neighborhood of effendis. As a class of junior Sudanese staff of the colonial administration, effendis were as rootless as their colonial superiors in outlying administrative posts. As the odd one out in the neighborhood of the Sudanese effendi class, the qadi was, in al-Turabi’s word, a ‘counter-effendi.’ He spoke no English at all.12 The effendi class spoke Arabic heavily infused with English sounds so as to make it unintelligible to Arabic speakers.13 The acquired leisure habit of the effendis, such as drinking, card playing, and going to clubs, not only did not appeal to the qadi but they are either forbidden or frivolous according to his traditions. To his father, these effendis were awlād sākit (irresponsible kids) who had lost touch with their religion and their people. Even in work, the qadi occasionally came into conflict with junior Sudanese administrators who were willing to toe the British line of action. Al-Turabi’s belief that colonial elites are isolated and culturally naive may be traced to the cultural landscape of these effendi neighborhoods in which he grew up. In sharp contrast to the rest of the government dwellings, the qadi’s house within the same location was functionally open to the Muslim public. The qadi’s official and religious duties were in line with the everyday life of Muslims. He led the Friday and funeral

12 Al-Turabi’s father was one of the few qadis, if not the only one, who graduated from al- Mahad al-ʿIlmi, a religious seminary established in 1912, in which English was not taught. The majority of qadis graduated from the Qadi School of Gordon College where English and other ‘modern’ sciences were offered. This rare, and perhaps single, opportunity of his appointment was made possible by the forced removal by the British of their Egyptian co-colonials staff in the wake of the 1924 national insurrection for whose outbreak the Egyptians were blamed. The withdrawal of the Egyptians almost thinned the qadi department where they had been in the majority. 13 See a good analysis of conversations among representatives of this class in Osman (1971).

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prayers and blessed marriage contract ceremonies by his presence. Muslims had no fear knocking on the qadis’ door to ask questions about religious practices, to seek resolution of family disputes outside the court, or ask the judge to intercede in social conflicts. The qadi thus was in the position of looking after their business and leading them in prayer. Visiting ulema felt comfortable dropping by to exchange views with the qadi. Itinerant singers of the praise of the Prophet, an established art in Sudan, would perform and be entertained at the qadi’s home. AlTurabi owes his interest in the relation between art and Islam to these artistic performances (al-Turabi 1996; 1987a, 83–118).14 In contrast, the effendis’ secluded life was impenetrable to their subjects/countrymen. Not even a merchant, al-Turabi says in his interview, would be allowed in their club. Hasan al-Turabi’s Theology Al-Turabi articulates a theology of modernity, which reconciles his seemingly divided cultural experiences through the concept of ibtilāʾ. He uses this concept, which means experiencing life as a perpetual challenge posed by God to test Muslim’s faith, as synonymous with ‘modernity,’ this being the specific test set for contemporary Muslims.15 Whereas Muslims are responsible to hold on tooth and nail to religion, the Qur’an and Sunna (tradition of the Prophet), they can be selective, and even dismissive, of salaf (the preceding generations’ traditions), that is, the historical religiosities of past Muslims. To open up ijtihād (interpretation of Islamic jurisprudence) for Muslims to wrestle with modernity, he also distinguishes between iḥya (revival) and tajdīd (renewal).

14 Interview with Hasan al-Turabi, Khartoum, July 1996. See his (1987a, 83–118) in which he discusses the relationship between Islam and art. 15 For a negative view of al-Turabi’s concept of ibtilāʾ see Bola (1998). Drawing on a common popular usage in Sudan, in which ibtilāʾ is used synonymous to ‘extreme calamity,’ Bola takes al-Turabi to task for saying that our fate in the Sudan is to go through the ibtilāʾ of wrestling with the immense cultural and racial diversity of the country. Bola interprets al-Turabi, the Muslim, Arab bigot he holds him to be, as being resentful and distressed by this diversity. Put in the wider context of the term as we will see it used by al-Turabi, the statement can be read as recognition of a reality that must be reckoned with and resolved.

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Ibitla, or Modernity, as a Route to Worshipping God According to al-Turabi, modernity is the ibtilāʾ of the times for Muslims. Al-Turabi presents the need to come to grips with modernity as a calling similar to American Puritanism (al-Turabi 1993, 44). Modernity is simply a god-given reality, whose manipulation leads to a more profound worship of God. Contrary to the common popular piety, which sees modernity as a delusion, al-Turabi sees it as a corridor to God. Urbanization, for example, urges Muslim to humanize the sprawling rabbit warren of cities by recognition of difference, imparting civility to the maddening crowd, and soothing loneliness with peace of mind. Weak Muslims alone would shun urbanity for its evils, lure, and materialism. Looking nostalgically toward familiar rustic rurality, he argues, is a disservice to God, who unleashed urbanity on us to test our love of him (al-Turabi 1995a, 70–74). In worshipping God, Muslims need not be intimidated by the ungodly concepts by which modernity is perceived or articulated. Like the Prophet who usurped the pagan Arabic idioms to preach monotheism (1995a, 74), Muslims have the duty to engage in modern concepts to gear them toward glorifying God (1995a, 73). Religion and Religiosity Religion, for al-Turabi, is the eternal and legitimate heritage of Islam comprising the Qur’an and the traditions of the Prophet, the Sunna. In other words, his approach would be defined as ‘fundamentalism’ in current discourses. Al-Turabi occasionally calls religion al-dīn al-ḥ aq (true religion). In contrast, he calls the accumulating traditions of generations of Muslims al-dīn al-kasb (the acquired religion) (1995a, 41).16 The various schools of jurisprudence and the Sunna/Shia conflict are acquired religion, he suggests, and are subject to reappraisal and abandonment if so decided (1995a, 20). As such, the traditions of religiosity, salaf, lose the entire aura, if not the sanctity, normally assigned to them by the majority of Muslims. Religion, in his view, is constantly tested by the unfolding, pressing realities of ibtilāʾ. In its vulnerability to the ravages of times, religion may diminish and decay (1995a, 19). Religiosity then steps in to bring religion, the ideal model descending from God, to

16 Elsewhere he designates them as al-dīn bi maʿana al-ḥ aq (religion meaning ‘the truth’) and al-dīn bi maʿana al-taḥ qīq (religion as the realization of religion/the truth in reality), respectively (al-Turabi 1989b, 77).

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bear on ibtilāʾ, the challenges posed by God to test our spiritual metal (1995a, 62). Forms of religiosity therefore vary by necessity to keep the essence of religion intact (al-Turabi 1992a, 16). Revival and Renewal Both religious revival and renewal arise to address a fatra, a rather long period of lethargy in terms of adherence to religion. Whereas revival sounds in al-Turabi writings as a wake-up call, renewal is the enterprise with a far-reaching impact. Unfettered except by religion, the renewer, who has been called to action by the immense challenges facing Islam today, is especially privileged to transform historical religiosity. Unlike a revivalist such as the awaited Mahdi, who is awed by salaf tradition, the renewer is only limited by religion. For al-Turabi, religiosity is a historical legacy that we may usefully consult without being bound by it (1995a, 19). As a product of transient circumstances, religiosity, by definition, is ephemeral. Because it is the least predetermined aspect of worshipping God, it allows for creative interventions. It is therefore at the heart of al-Turabi’s unyielding renewal. As cultural artifacts, the traditions of religiosity, he argues, are subject to diseases that render them unusable to succeeding generations. Jurists, whose self-appointed job is to elaborate them, may cross the line and render them, in the process, too opaque to serve Muslims, or they may fall into formalism that cuts them from their source in real life situations. The procedural and technical sophistication resulting from formalism and elaboration may lull succeeding generations into an intellectual sloth of memorizing and passing on the tradition. In doing so, they renege the duty of creatively engaging with their unfolding realities (1995a, 29). Of all the terms of al-Turabi’s system, ibtilāʾ assumes a particular immediacy and urgency. He has overhauled the Islamic tradition beyond recognition to come to grips with this test. Religion is neither a golden age left behind nor a prescription for a piety of personal salvation, or a refuge from the inexorable ibtilāʾ. The dialectic of religion and religiosity lies in ibtilāʾ. God has ordained that life’s unfolding realities and challenges put our religion to the test. Ibtilāʾ is a way of humans to worship God by manipulating the challenges He throws our way (1995a, 66). Had God desired otherwise, al-Turabi reasons, He could have left us in Paradise worshipping him to our hearts’ content. Human descent to earth is so decreed to test how we would fare wrestling with life and

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upholding our religion (1995a, 62). Most importantly, religion and human beings are both divinely equipped to address these challenges (1995a, 21). Religiosity, the outcome of this striving, is basically the marriage of religion, the eternal, to the ḥ ādithāt (transient events). Religiosities come in all shapes and forms as long as they are dependent on the emerging realities. An ageless religiosity, he argues, is paradoxical. Although the ibtilāʾ of modernity dwarfs previous tests, Islam, in al-Turabi’s opinion, has always been wrestling with ibtilāʾ. However, the ibtilāʾ of modernity, viewed as a civilization maftūna ʿan al-dīn (seduced away from religion), is unprecedented (al-Turabi 1995b, 11; [1974] 1984a, 234, 299). Islam is called upon to bring modernity to tatūb ila Allah (atone to God) (al-Turabi 1992a, 11). Atonement of the Sinful State Those who shun al-Turabi as a power-crazed politician (ElBashir 1992; Ibrahim 1991; Khalid 1986; Kok 1992; The New York Times 6 December 1994; Said 1993b) do not give him credit for the fact that the state is the focal point of his Islamic revival. He uses the state as co-extensive with modernity. And both, in his view, are ghafila ‘an al-dīn (inattentive to religion) (1992b, 23). Hence al-Turabi calls for the state to tatūb ila al-dīn (to atone to religion). Al-Turabi suggests that the separation of religion from the state has characterized most of the history of Islam, except for the forty years of the original community of the Prophet and his Rashidi (Rightly Guided) successors. So much so that what people call the ‘Islamic state,’ al-Turabi argues, is a misnomer. The jurists have withheld their approval of the various heads of Islamic states (al-Turabi 1987b, 6).17 By refusing to grant it any crucial roles in legislation and the economy, the pious jurists emasculated the post-Rashidi state. As a result, the state can neither legislate nor impose taxes in excess of zaka, the religious alms. The sources, amounts, and expenditure of these alms are finely stipulated by Qurʾan to render the state redundant (al-Turabi 1992b, 7–8). The jurists, on the other hand, usurped legislation. In assuming authority over uṣūl al-fiqh (the source of law), jurists eliminated the

17 Published originally in 1983 as ‘The Islamic State’ in Voices of Resurgent Islam, edited by Esposito. New York: Oxford University Press.

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state as a legislator. Judges, who were appointed by the state, looked to the jurists for providing the laws (1987b, 6). Emasculated by the clerics and shunned by the Sufis, the Islamic state suffered an untimely Marxian ‘withering of the state’ through which the civil society has been taking good care of itself (al-Turabi 1992b, 7–8). Al-Turabi, however, would return to the state its usurped right to legislate (al-Turabi 1992a, 1). More akin to the modern state, al-Turabi’s state will no longer receive its legislation from the jurists (Mahmoud 1996, 171). Colonial secularism came to Muslim countries to find the state had already been separated from religion. Thus the colonial state’s response to religion merely reinforced an indigenous practice. Unlike an indigenous state that had kept a semblance of allegiance to Islam, however inattentive, the colonial state felt particularly threatened by the religion. The British feared that another Mahdi, in the mold of the one they had just crushed in 1899, might arise and put the colonial state in jeopardy.18 However, the colonial state was eager to emphasize its respect for Islam when practiced as a private faith, for example by assigning sharia to serve as the personal law of Muslims (al-Turabi 1977, 7). Al-Turabi argues that although this long-standing divorce of state and religion deprived Muslims of a role in crafting the state, it encouraged the rise of oppositional Islamic movements. The Islamic movement in Sudan, al-Turabi says, found no difficulty in mobilizing Muslims to oppose colonial and postcolonial states. However, it has yet to learn how to positively engage the state in order to face the ibtilāʾ of modernity (1989a, 189–190). The habits of resisting the state still dominate and hamper Muslim practice. Al-Turabi rejected the comfort of opposition and accepted a humiliating alliance with President Nimerie in 1977. To justify his alliance with a vicious dictator, he recommended the ‘Prophet Joseph paradigm’ of working for the state as well as against it (al-Turabi 1989a, 197). Joseph, in the Qurʾanic story, used his mastery over the interpretation of dreams to set himself free from prison and also, in

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For the history of the Mahdi’s revolution and state see P.M. Holt (1958). Hasan A. Ibrahim (1979) is a lucid presentation of the ʿĪsawiyya (Mohammadan Messiah) movements that plagued the colonial administration well into the second decade of the twentieth century.

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his new capacity as the minister of finance of the kingdom, to avert a calamity that could have befallen his people (Qurʾan 12: 36–56).19 Muslims cannot triumph over the ibtilāʾ of modernity while still harboring their historical negativity toward the state. Al-Turabi believes that the modern state has become too enmeshed in society to be left to the management of secularists. The modern state actually nurtures individuals in ways that were once the prerogative of the family. Nowadays culture is transmitted through schools, radio, and television. Kinship economies based on farming and pastoralism has been replaced by wage labor, with its regulations disciplining the mind and body. Returning Islam to the state, for al-Turabi, is not returning to a body of laws. Rather, it is reclaiming an educational institution. Religion cannot simply relinquish its prime duty of educating people by delegating it to a godless state (al-Turabi 1978, 10–11). This return is calculated to bring al-wujdān li al-ṣulṭān (consciousness to power) (al-Turabi n.d., 18). The Paradigm of Prayer: Government in a Nutshell Muslims, al-Turabi suggests, need no more than think through the ritual of prayer to realize that the state is indispensable to being good worshippers. Prayer is parallel to the working of a state. In both activities a believer takes responsibility to competently perform an act of worshipping God. Praying therefore is the preparatory school par excellence to instruct Muslims about the indissoluble unity of state and religion (al-Turabi [1974] 1984b, 143–147). In prayers, Muslims close ranks irrespective of being rich or poor, young or old, men or women, Sunni or Shia. In this it is emblematic of the unity of the umma (the Pan-Muslim community) in worshipping God. In closing ranks in prayer, Muslims are advised to stand shoulder-to-shoulder, foot-to-foot in order to lock Satan out ([1974] 1984a, 129–130, 132, 139). Similarly, a Muslim state needs to mobilize to defend itself against intruders. Further, an imam whose credentials of knowledge and piety have been accepted by worshippers leads prayers. God, according to a tradition attributed to the Prophet, would not accept the prayers of an imam who imposed

19

Ibrahim takes the Joseph metaphor literally as a form of megalomania in that al-Turabi is putting himself in the shoes a prophet. He dismisses this as pretentious by writing, ‘These Narcissistic shaṭāḥ at (overstatements) are common with al-Turabi lately’ (1996).

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himself on the community of worshippers. Once they have elected the imam, worshippers must follow his each and every prescribed detail of the ritual. However, they are obliged to correct him on the spot if he forgets or errs ([1974] 1984a, 140–144). Prayer is the microcosm of all other acts of worshipping God ([1974] 1984a, 50, 89, 65). Prayers begin with the statement: ‘God is great,’ which is a gloss of shahāda (‘No God except God and that the Prophet is his messenger’), the first act of worship in Islam ([1974] 1984a, 78). In saying this with their hands lifted, Muslims submit to God with hands clean of malice and harm, and humbly raised to please God. Worshippers face Mecca, the qibla (the direction), as they do in traveling to perform hajj, the other ritual of Islam ([1974] 1984a, 58, 65). Like zaka, praying is an investment in God by taking time to perform the act ([1974] 1984a, 42–45). In gravitating toward the center of faith investing in God’s love, a prayer’s body is disciplined as a devout worshipper as well as good citizen ([1974] 1984a, 59). Ibtilāʾ and Authorities Disqualified from Mediating its Challenge In al-Turabi’s view, none of the elites he grew up around is capable of handling Muslims’ ibtilāʾ of modernity. Both the clerics and Mahdis of his lineage and home as well as the effendis, of which he is one, are disqualified. Al-Turabi criticizes Sufism for shunning state power, which he considers indispensable for the redemption of Muslims. Sufi scholars have concluded that the state is too corrupt to be trusted with faith, and that religion must be salvaged from its ravages. In seeing that fiqh, the science of ẓāhir (contracts) had become a technical redundancy, Sufists opted to focus on bāṭin (belief and its ethical rituals) (al-Turabi 1992a, 27). Just like jurists, Sufists sought to organize ‘the unity of the community of believers away from politics’ (al-Turabi 1992c, 50). Disinterest in politics led the Sufists to a culture of elaborate rituals officiated by authorized shaykhs. This tibā’a (state of following blindly), in al-Turabi’s view, acts counter to Islam’s call to use reason to pursue truth and knowledge (al-Turabi [1974] 1984a, 200, 260). Al-Turabi sees no place for a Mahdi in the scheme of ibtilāʾ. He traces the concept of the Mahdi, the millennial redeemer of Islam, to its Jewish and Christian origins where religion receded from public life. Muslims, al-Turabi argues, uncritically picked up the concept of the coming of

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a redeemer who emerges at the head of every century to purge life of injustice and misery (al-Turabi 1995a, 34). A Mahdi weds religion to politics, but only after an initial unnecessary divorce. Al-Turabi faults Mahdism for subscribing to the premise that religion is degenerative, that it devolves over time. The Mahdi, he argues, cannot rise to the level of contemporary ibtilāʾ. For this test in coming to grips with these emerging realities calls for collective efforts far beyond the capacity of a Mahdi conceived as an upright individual (al-Turabi 1977, 2). In not addressing change, this tradition, in al-Turabi’s view, robs Muslims of the initiative and energy to cope with ibtilāʾ (al-Turabi 1995a, 34). Mahdism, for al-Turabi, is the way a tradition organizes and controls dissent against itself. Genuine and steadfast social and religious reformers had to play according to the rules of tradition to legitimize their dissent (1995a, 34, 46). In seeking legitimacy, a Mahdi, for example, must claim to be in direct communication with the Prophet. Al-Turabi sees this as untruthful and unnecessary for renewing religion in our day and age (Miller 1997, 195). He sees Mahdism as cultural procrastination licensed by tradition. Muslims cannot afford this luxury in their current ibtilāʾ. In his evaluation of the Sudanese Mahdism of the nineteenth century, al-Turabi departs from religious nationalists and other nationalists who are mesmerized by its model and rhetoric. He points rather to the demise of Mahdism as illustrating the dilemma of dissent according to the strict confines of the dominant tradition. Because it was not nourished by the insights of the modern culture of the age, Mahdism turned into a strict revival movement good enough for abrogating bāṭil (falsehood) but not to establish right. Al-Turabi attributes this to its failure to marry Islamic revival to a cultural or scientific renaissance (al-Khalij 6 July 1987).20 Al-Turabi’s writings often focus on disqualifying clerics as worthy brokers of the ibtilāʾ confronting contemporary Muslims. Clerics are, in his view, a consequence of the ‘diseases of religiosity’ (al-Turabi 1977, 7). They are the negative result of ignoring ibtilāʾ, which has resulted in an almost unbridgeable gap between the usable fiqh resources of Muslims

20 Al-Turabi’s latter confrontation with Sadig, his brother-in-law, the great grandson of the Mahdi and a staunch opponent of al-Turabi’s regime in power, might have caused him to lash out at Mahdism for breeding dynasticism, an un-Islamic form of government (Miller 1997, 195).

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and the mounting challenges of the modern life (al-Turabi 1992a, 12). In approaching ibtilāʾ by dusting an old fatwa to approximate an unfolding event, the clerics have only deepened this gap (al-Turabi 1977, 18). The clerical class, for al-Turabi, is a historical intruder in Islamic religion. He sees no place in Islam for a class encased in official or material regimes entitling it to monopolize decisions about good religion (al-Turabi 1992a, 22). The class usurped this power in the historical context of the disenfranchisement of Islam resulting from both the decadence of the Islamic state and the subjection of Muslims to foreign rule. Jurists thus deny the state any power to legislate for Muslims. They assert their right to be the lawmakers to the exclusion of the deceitful, albeit legitimate, state (al-Turabi 1977, 9). Worse than the clerics’ usurping of legislation from the state, argues al-Turabi, is the clerics’ usurping it from the umma. As self-appointed keepers of the faith, the clerics have denied Muslims the right to legislate on the pretext that shūra (consultation and consensus), by which a Muslim polity is supposed to be managed according to Qurʾan, is difficult to implement (1977, 9). The religious hierarchy represented by the clerics runs counter to the call of Islam for the broad distribution of knowledge and power. Al-Turabi identifies Islam’s position on knowledge as calling for a popular fiqh in which the nation of Muslims is the source of legitimacy (1977, 21). Islam makes the duty of thinking and practicing religion a popular enterprise instead of an elite discourse (al-Turabi 1992a, 13).21 Each and every Muslim is asked to participate in bringing religion into life, share his or her experience, large and small, with his or her fellow Muslims, ‘interacting with the least as well as the most knowledgeable, in the spirit of advisement shorn of elitism or riff-raffing’ (1992a, 22–23). Muslims, of course, vary in their share of knowledge. A hierarchy based on the breadth of knowledge is uncalled for since Muslims, whom the Prophet said would never cohere around a falsehood, have the final word in legislation through their competent shūra bodies (al-Turabi 1980, 32).

21 Al-Turabi maintains that the prevailing perception that fiqh tradition is the work of abnormal individuals, shudhādh, who were alone privy to its secrets, is untrue (alTurabi 1992a, 13). He argues that fiqh developed originally as a popular enterprise. Jurists, currently credited solely for its production, understood that they were engaging in a public discourse in search of enlightenment and consensus. Founding-jurists attended various discussion circles and were receptive of their critics and students (al-Turabi 1980, 44).

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Colonialism found this schism between state and Islam convenient for its administration. In their interest in Muslim territories rather than their religion, the Western powers turned Islam, a popular heresy anyway, into a religion of a milla (a subject community). To placate the Muslim subjects, the cleric class was reinvented (Warburg 1971), especially through the colonial Manichaean education in which ‘the sciences of nature are alienated from the sciences of religion,’ graduating experts of this World as distinct from experts of the other World. The Manichaean distinction was manifested even in the dress assigned for each set of experts (al-Turabi 1977, 17–18). Manichaeanism, argues al-Turabi, was too good for both clerics and secularists to abandon even after the independence of Muslim countries. Both civil judges and qadis have held to their positions as the spokesmen of modernity or religion, respectively. Calls to integrate courts and schools have been viewed suspiciously by the clerics for fear of losing what little authority they have been assigned in the modern state. Manichaeanism, as the organizing principle of culture and professions, is apparently an acceptable measure of worth and functions to all and sundry (al-Turabi 1978, 20). To undercut the plans of both the qadis and the civil judges to preserve the dual judiciary, al-Turabi called for a united judiciary as early as 1968 (al-Ayyam 25 December 1968). In a memorandum he wrote as an Attorney-General in 1979, he proposed that judges of the united judiciary should be retrained to gain competence to hear, on rotational bases, civil as well as sharia cases.22 Al-Turabi was on several committees, such as the 1965 Board of Omdurman Islamic University, which supervised its evolution from a religious seminary to a modern university (el-Baqir 1988, 35).23 Both modernists and die-hard clerics were adamantly against this development (Ibrahim 1999b). In his emphasis on the ineptitude of clerics to handle modernity, al-Turabi always comes back to the Manichaean landscapes of his childhood. He keeps coming to his father, the ‘woman judge.’ The qadis’ family jurisdiction, a fragment of sharia the colonialist culled arbitrarily from a comprehensive tradition, allowed the apostate state to work ignoring the spiritual and social well-being of the family (al-Turabi 1978, 10–11).

22

Office of the Attorney-General Archive, AGC/AG/M, 1979. Al-Turabi was also on the committee that equalized the certificate of the religious seminaries to its counterparts of the modern schools (al-Baqir 1991, 32). 23

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Confining Islam to family law, al-Turabi argues, is good for neither Islam nor the family. Family law cannot do justice to families unless it draws on contemporary social sciences (al-Turabi 1980, 20). Modern legislation in family welfare, as in all other aspects of life, calls for a competence in sharia as well as in physical and social sciences (1980, 31). In the past, Muslims used Hellenic culture and formal logic especially, to argue through the mist of skepticism regarding the existence of God and the validity of Islam (al-Turabi 1992a, 16). Similarly, a cleric must draw on the scholarship of the social sciences in making a judgment on divorce.24 Child support and alimony can only be usefully determined in the light of the fiscal and economic regulations of the modern state (al-Turabi 1980, 33). Civil and sharia courts have clashed over how much to deduct for child support from fathers’ salaries, which were protected by financial regulations as to the amount the state was allowed to deduct from payrolls (Ibrahim n.d., 86). A sharia judgment has to take into account such regulations to have a positive impact on the welfare of both the family and the state (al-Turabi 1980, 33). How the Clerics Banished Qurʾan from the life of Muslims Qurʾan exegists, a prestigious and revered group of Muslim scholars, are also criticized by al-Turabi for preventing Qurʾan from engaging Muslims’ emerging realities in a creative manner. Al-Turabi is convinced that the failure of Muslims to come to grips with ibtilāʾ is a consequence of a chronic crisis in Qurʾan exegesis. Various exegesis schools ‘led to the abandonment of Qurʾan, its banishment from the realm of the sciences of reality, and lifted it from the humdrum of daily life. As a result, the understanding of Qurʾan has been developing in isolation from life.’ For the public, Qurʾan became a rote learning of scared texts that hardly addresses ibtilāʾ. Scholars, on the other hand, turned it into a mine of arguments for defending the high creeds of Islam, or its rhetorical miracles. Scholars who hold to the premise that religion degenerates in the passage of time, made the verses of Qurʾan too inextricable from the original events of their descent to engage subsequent realities. Qurʾan is further removed from reality by educational concerns arising from its rapid spread beyond Arabia. The exegesis that addressed the educational needs of these new converts to Islam, at a time when 24 Even positive laws have been liberated from pedantism and too much indulging in technical mystification by social sciences (al-Turabi 1992a, 24–25).

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the state had already strayed from the guidance of Islam, were too careful to teach the new converts matters of ritual practices like prayers to ignore bringing Qurʾan to bear on their lives. The school of exegesis, designated by al-Turabi as the ‘frontiers school,’ was too busy defending Islam to link it to Muslim’s lives. To this effect, the exegists of this school gleaned from Greek philosophy and other cultures to defend the inner truthfulness of the religion. Concerned by the influx of non-Arabic speaking Muslims, the linguists among these exegists were inclined to emphasize the beauty of the Qurʾanic styles. Upset by the dominance of a banal fiqh, Sufists, on the other hand, found solace in Qurʾan as a fountain of spirituality and a fund of soothing rhythms and rhymes. Lastly came the ‘evidentiary’ scholars hunting for evidence in Qurʾan to prove that the holy book predicted contemporary inventions and ventures, such as exploring outer space. The unitary imperative of Qurʾan, in al-Turabi’s view, that is, its dialogue with unfolding realities, was thus lost (al-Turabi 1996). Al-Turabi describes the intellectual habits and procedures of the clerics, reconciled to their half of the Manichaean order, as tanaṭuʿ (pedantic). Although he understands clerics ‘conservatism,’ in part, as a natural human response to an onslaught of innovations, he is afraid that their pedantism is too much of a good thing. They are so intimidated by modernity, he argues, that ‘al-ḥ ifāẓ ʿala baqiyat al-dīn’ (‘holding fast to the remnants of religion’) became a metaphor for their helplessness vis a vis modernity (1980, 39). As a result of the failure of the clerics to measure up to the ibtilāʾ of modernity, the realities of the contemporary life of Muslims exist mostly outside fiqh (1977, 16). To succeed against ibtilāʾ, al-Turabi dissolves the category of clerics for all intent and purpose. Rejecting a Golden Age To prevent the clerics from controlling decisions about what is Islam and what it is not, al-Turabi deprives them of two forms of power. Firstly, he maintains that the “Golden Age” of Islam is ahead of Muslims and not behind them as clerics believe it to be the case. Clerical authority is largely derived from monopolizing knowledge and interpretation of this past age. The second blow to clerical authority by al-Turabi is more drastic. To block their way to an authority based on historical texts or feuds, he would disband schools of jurisprudence and the communities of Sunna and Shia of the great original schism of Islam. He would

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dispossess clerics of the right to issue fatwas, a power that gives the clerics the right of life and death on reception of the products of ibtilāʾ. Finally, he calls into question their preaching resources and strategies that give them the prerogative of governing from the pulpit. Al-Turabi’s elaboration of ibtilāʾ throws into question the existence of a golden age of Islam, an assumed pillar of fundamentalist thinking. He argues that the veneration of the time of the Prophet and his Companions as the Muslim golden age is the result of generations of Muslims skirting ibtilāʾ, taking this pious detour to an original time in the past after which, they believe, all the good and noble in Muslims had been exhausted. For al-Turabi, this state of affairs led to a belief that Islam devolves over time. Islamic centuries, according to this belief, stand in a hierarchy, the older the better. This devolutionary premise turns the prevailing religiosity from an answer to ibtilāʾ to an excuse to avoid contemporary realities in the name of conserving baqiyat al-dīn (the remnants of Islam) from the ravages of time (al-Turabi 1980:39). In the face of challenging times of change, when sustained renewal of religion is in order, Muslims have been finding solace in a bygone age of beauty and perfection. In contrast, al-Turabi argues, all the historical eras of Islam collaborate and reinforce each other as they unfold (al-Turabi 1995a, 47, 75–76). Schools of jurisprudence, madhāhib, which have legitimized and professionalized a jurist class, are deemed unnecessary by al-Turabi for today’s Muslims. Neither their dogma and sectarianism, which stifled Muslim’s independent access to and insights into the fundamentals of religion, nor the communication revolution, which has brought Muslims of all walks of life together, justify the perpetuation of these intellectual relics. Muslims need to talk to each other unfettered by these historical barriers (al-Turabi 1977, 14). Al-Turabi’s system would deny clerics the right to issue legal opinions, fatwas, by whose authority they became the sole judge of the reception of the products and concepts of change. The state, he goes on to say, has no business issuing fatwas that are not intended by Islam to be monopolized by certain institutions or state officials. The state should not propagate what it believes as the only correct Islam (1977, 22). Al-Turabi is particularly aggrieved by the preaching strategies of the clerics who wanted to meet God holding fast to what they call the ‘remnants of religion.’ This backward-looking recipe for Muslim piety turned

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the nation into a version of the past and fiqh into artifacts administered by clerics who are perpetually scared of not getting it right (al-Turabi 1980, 39–40; 1995b, 10). The Islamic thought of this period is characterized as turning its back on Muslim realities and grasping the straws of the salaf texts (al-Turabi 1980, 37). The succeeding generations of Muslims were denied the right to leave an imprint of their wrestling with Islam and the realities of the process of ibtilāʾ (1992a, 13). Al-Turabi’s Views on Conflict within his Movement Al-Turabi’s movement has been plagued by an unremitting conflict between two factions conveniently labeled the ‘political school,’ led by al-Turabi, and the ‘educationalist school’ (el-Affendi 1991, 85–88, 118–119). Reading al-Turabi’s take on this conflict, one is left with the impression that he sees it as the continuation of his war against the clerics by other means. Al-Turabi characterizes his political faction as an outcome of colonial modernization coupled with, or engendering, liberal yearnings and youthful rebellion against traditional salaf and Sufi pieties (al-Turabi 1989a, 162). The cadres of the movement, he maintains, are therefore well-equipped to ‘operate under liberal, creative and changing conditions. They have grown familiar with the methods of criticism and self-assessment, which has been lacking in other Islamic groups that are structured along more traditional and conservative lines. Since our student days, we have become accustomed to self-criticism, reevaluation, and innovation. . . . Most importantly we have always been fully conscious of our own history’ (Hamdi 1998, 29). Al-Turabi traces the liberality and solidarity of his movement to its origin in the late 1940s when young men of relatively the same age and level of education came together (1998, 95, 107). Unlike the Egyptian Brotherhood, they were not talked into tibāʿa (state of following someone blindly) by a renowned or elderly shaykh with an advantage in terms of age or knowledge (al-Turabi 1989a, 231). Taking pride in this egalitarian beginning, the movement consciously avoided the rise of a shaykh with a patriarchal grip over the rank and file. It has resisted the temptation of privileging its fiqh professionals with judging the religious correctness of the movement from the safety of their isolation in a special commission (1992c, 53). Ibtilāʾ, in al-Turabi’s view, requires

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that all professions and forms of knowledge reference each other to face in unison the challenges of modernity.25 The educational faction resembles al-Turabi’s characterization of the clerical class. According to al-Turabi, members of this faction, who model their piety after the ‘traditional religiosity’ of Sudan, were reinforced by an influx of graduates of various religious seminaries. Influenced by the Egyptian Brotherhood, the educational faction has copied the Egyptian patriarchal organization. Spiritually, it endorsed the Sufi literature of the Egyptian movement (1989a, 232).26 The educationalist faction did not like what it saw under the leadership of al-Turabi. In both 1969 and 1978 (el-Affendi 1991, 85–88, 118–119), it went on the offensive against his line of thinking and action. In both cases, it suffered terrible defeats and ended up as a vocal, but insignificant, minority. The educationalists accused al-Turabi’s faction of being preoccupied with politics and showmanship at the expense of deepening the educational foundation of members. They were appalled by the readiness of the political group to overhaul the internal structures of the movement in order to accommodate the numerous and extremely successful, if ethically questionable, political alliances with other centers of powers (1991, 114, 118–120).27 We will see later how they ended up defrocking al-Turabi.

25 He acted on his fear that the Islamic movement might have been usurped by clerics in 1964. To preempt this, he wrote the Islamic Charter of 1964, after which the movement, the Islamic Charter Front, was named between 1964 and 1969. By writing the charter, al-Turabi made it the point of reference for the movement rather than Islam per se. If the terms of reference were Islam in general, al-Turabi argues, the clerics, who had headway in credentials and expertise, could have colonized the movement. Both Sufi and clerics joined the Islamic Charter Front as useful members and not as authorities (Interview with al-Turabi, 1996). 26 Al-Maʾthūrāt of Hasan al-Banna, the founder of the Brotherhood in Egypt, is a dhikr (recitation) book that members have been obliged to recite for blessings in the fashion Sufi followers do with similar books. According to al-Turabi, the book did not catch on in Sudan because older Sudanese Sufi books continued to be popular even with members of the Brotherhood itself. He also suggests that the movement had been too much of a salafī nature in the beginning to approve of Sufi recitation anyway (alTurabi 1989a, 162–163). 27 In his interview, al-Turabi confessed that he has no reverence for organizational set-ups and that they have been the first to go in doing successful politics and alliances. The 1978 critics of al-Turabi were especially affronted by the overhauling resulting in al-Turabi’s disreputable alliance with President Nimerie in 1977. Note the movement had fought the man since his coming to power in 1969 paying a heavy price in lives. We will discuss later al-Turabi’s answer to his 1978 critics.

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Although al-Turabi calls his adversaries in the movement the ‘educationalists,’ he is not suggesting that his political faction has avoided involvement in education. In fact, he argues that his faction has had the right approach to education given the circumstances. In the religion of Islam, as distinct from its religiosity, education cannot be confined to the enhancement of personal piety. A demonstration supporting the implementation of Islamic law, he argues, is on par in God’s eye with all forms of religious rituals. Business is a road to piety, too, and businessmen are judged to be pious with reference to their worldly success (1989a, 55). In a society in which Islam had been removed from daily life, a call for and actions toward an Islamic state led to an environment conducive to a meaningful religious education (1989a, 162–164). Without the state, he argues, education is a chimera. The state has already become the educational institution par excellence (al-Turabi 1978, 10). A religion that has no take on the intricate processes of the state such as banking, he argues, has already lost the battle of educating people. If people cannot see the relevance of religion in their daily ibtilāʾ, they have every right to be skeptical about the coming of the Islamic state conjured in minds rather than in daily practice and worshipping (1978, 7). Muslims, as religionists, have been denied access to the state, the most powerful means to bring about change. Unless Muslims acquire the skills to run their Muslim state, no theoretical education is good enough. Calling for education that is not linked to control of the state is looking the other way in the face of ibtilāʾ (al-Turabi 1980, 39–40). Relations with the Egyptian Brotherhood The Islamic movement has its indigenous roots in Sudanese nationalism and student politics of the 1940s, but it is unarguably an offshoot of the Egyptian Brotherhood (Ahmad 1982; Imam 1987; Hamid 1989; el-Affendi 1991; al-Turabi 1989b, 87–89; 1990). The progressive souring of relations between the two movements in the 1970s stemmed from the fear of the movement in Sudan of falling under an external shaykh and not achieving the egalitarian political environment they sought. The Sudanese movement fought against the hegemonic tendencies of the Egyptian Brotherhood to turn it into a satellite of the metropolitan Brotherhood in Egypt (al-Turabi 1989b, 86–87). Having won independence from a condominium colonialism, in which Egypt had been implicated, albeit in a superficial way, the nationalistic Sudanese movement militated against this Egyptian haughtiness from the very

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beginning. However, the Sudanese restrained their negative response to Egyptian hegemony because of the hard times the founding Brotherhood had been undergoing under President Nasser in the 1960s (1989b, 80).28 During these years, the Sudanese movement voluntarily joined other Arab Brotherhood organizations in forming an executive office to coordinate the activities of the Pan-Arab Brotherhood called the International Organization (1989b, 80). However, a conflict ensued when the Egyptian movement proposed to the Sudanese activists to integrate into this international Brotherhood led by the Egyptian organization (1989b, 81). Realizing that their movement would be reduced to a branch of the Egyptian Brotherhood, the Sudanese turned the offer down. Instead, they proposed a plan of coordination reconciling local autonomy with international and Pan-Arab commitments. The Egyptian organization insisted on integration and only the educational faction in the Sudanese movement was ready to go along with the Egyptian initiative (1989b, 81). Al-Turabi’s faction fell from favor with the patriarch and suffered the consequences.29 Reeducating Effendis Effendis have fallen short of addressing ibtilāʾ. In al-Turabi’s view, they are not even conscious of the ibtilāʾ they face. As a colonial product of modernity, they are, by al-Turabi’s standards, disqualified from inter-

28 In an opportunistic change of mind, al-Turabi told me in his interview, the Sudanese Brotherhood was reluctant to call itself the ‘Sudan Muslim Brotherhood’ for fear of the negative connotations of the name resulting from its fight against President Nasser of Egypt with his powerful propaganda machine. In the 1960s, when the movement became legal, it reserved the name ‘Brotherhood’ for the core organization and chose to call the public party ‘The Islamic Charter Front.’ In returning to legality in 1985, it went by the ‘National Islamic Front.’ Al-Turabi maintains that it is the communists who insisted on calling the Islamic movement ‘the Muslim Brotherhood’ to incite the Egyptian propaganda against them (al-Wasat 22 February 1991). 29 The Egyptian Brotherhood has been very critical of al-Turabi’s views and complained about his apostasy. ʿAbd al-ʿAziz Ben Baz, the highest religious authority in Saudi Arabia, received a letter in 1980 to this effect from ʿAbd al-Badiʿ Saqr, a veteran member of the Egyptian Brotherhood. The letter was referred to al-Turabi to respond. In his reply, al-Turabi dismissed Saqr’s accusations as politically motivated. He said that the delegates that Saqr said had been sent from Egypt to dissuade him from his apostate views, were in fact political cadres to pressure him into swearing allegiance to the leader of the Egyptian Brotherhood. His refusal to submit to this unlawful fidelity, he said, brought him the wrath of Saqr and his group. Copies of the correspondence between Bin Baz and al-Turabi have been circulating ever since among the initiated. I am grateful to Mr. Mubark Hamad of Columbia, Missouri, for bringing this correspondence to my attention.

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rogating modernity and generating local critiques of it. Secular effendis have been schooled in what al-Turabi calls al-tārīkh al-maqrū (literally, the history read to the exclusion of other histories; Western canonical history), which suggests that religion is a single human experience, and what applies to one religion, applies for them all. For example, effendis assume that the separation of church and state embraced by the West is appropriate for Islam (al-Turabi 1978, 25). Effendis, al-Turabi maintains, are an ‘alien ruling caste’ (Muhammad 1993, 39) groomed in a bastardized school system in which the Western canonical history dwarfed their Islamic and Arabic histories and cultures (al-Zein 1995), reared in isolation from the local people in their schools, dorms, clubs,30 leisure habits,31 and foreign or hybrid tongues. They are ignorant, if not disrespectful, of their people and distrustful of their traditions (al-Turabi 1992b, 16–17).32 Given the opportunity to run the country at independence, al-Turabi states, they failed to go

30 These clubs were established during the colonial period partly to alleviate the loneliness of both Sudanese and British officials serving in the outlying regions of Sudan. They had a cosmopolitan membership of Syrians and Greek merchants. An effendi sub-culture evolved around these clubs comprising playing cards and chess and reception and farewell parties of colleagues. The compositions recited on these occasions constitute a whole chapter in Sudanese poetry. See Bakhrayba (1959) for specimens of this culture. With the help of British officials tennis competitions were organized (Sharkey 1998: Vol. 2, 313–215). 31 The effendi elite were over concerned that the revision of the laws to conform to sharia, an initiative begun by President Nimerie in 1977 and led by al-Turabi, would prohibit alcohol. Although al-Turabi’s committee recommended this prohibition, it envisioned its implementation in a gradual way to placate the elites’ concern with their drinking habits. However, Nimerie’s 1983 Islamic laws that surprised even al-Turabi’s committee, prohibited alcohol without giving a period of grace. The spectacle of the destruction of thousands of bottles of alcohol and the pouring of their contents into the Nile ushered in Nimerie’s short-lived Islamic state (1983–1985). Alcohol however is still prohibited. Those indicted for the possession or drinking of alcohol were lashed according to Islamic sanctions. A number of the elite classes were punished in this manner. Al-Turabi saw these elite indulgences and humiliations as evidence of the pettiness of the concerns of the effendi class (Muhammad 1993, 38). For a secular disapproval of the carousing habits of the effendi see Ibrahim (1970). Salah A. Ibrahim, a leftist poet, captured this disapproval succinctly: The elites of Khartoum are a snooze, a cup of coffee, a bottle and a carousing (1965, 93). 32 Use of ‘primitive’ to describe their uneducated countrymen stands out as demeaning of the majority of the citizens. Justice Awadalla used ‘primitive’ to account for a decision he had taken in Sudan Government v. Awad Adam Omer in 1957, see The Sudan Law Journal and Reports (1961, 75–79). Ibrahim, a veteran women’s leader, made the mistake of referring lately to women of the southern part of the country as ‘the most primitive.’ The outcry against such poor cultural taste was deafening. Ibrahim, who spent a life fighting for the rights of southern Sudanese women, was only expressing herself in the usual elite evolutionary diction (Sudan-List 22 July 1999).

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beyond replicating the colonial ‘Indirect Rule’ with its inexorable chasm separating the ruled and the rulers. Securing popular support through parties, rallies, and electorates has been left to the influential traditional tribal and Sufi leaders. Elites can only access the masses through the good offices of these leaders, who in turn became the real power behind the facade of effendi administrations (al-Khalij 6 July 1987).33 In their disassociation from their religion, effendis, in al-Turabi’s view, disconnected themselves from the indigenous culture by which their subjects in independent Sudan evaluated them (al-Raya 14 February 1989). Muslim subjects could not figure out what to make of the beliefs and concepts, such as socialism and secularism, which elites had concocted in governance. The despotism rampant in present Muslim countries, al-Turabi argues, is not happening because of Islam, but despite Islam. Despots are neither encouraged by sharia, which denies them the power to legislate or levy taxes, nor powerful enough to totally ignore sharia (al-Turabi 1992b, 7–8). The Muslim state, al-Turabi argues, needs no more than Islam to set right its negative record of honoring personal freedoms. In turning their back on Islam, modern elites, using the modern tools of suppression and surveillance, have cut themselves loose from the only democratic culture which could have connected them to their subjects (al-Turabi 1987a, 35). Islam can be grossly misused, argues al-Turabi, but recognizing and responding to an injustice in an Islamic system is part of the tradition itself (al-Turabi 1987a, 18, 24–25). Democracy, he maintains, cannot take root in a Muslim polity that is inattentive to Islam. ‘To avoid Islam,’ he says, ‘you have to avoid the ballot box’ (al-Turabi 1992c, 52). To counter this isolation and naivety of effendis, al-Turabi built an Islamic movement cured from this disease of cultural idiocy. When he joined the Islamists as a college student after a long waiting period since he had been asked to join it at high school, he found them too imprisoned within students circles, to the point of referring to recruits from the larger society as ‘the external branch’ (Hamdi 1998, 31). Like other Islamists of his generation, al-Turabi was disappointed with the emptiness of the liberal and communist movement among the students and elites.34 He only saw the potential for a mass Islamic movement 33

In his interview in 1996, al-Turabi described these traditional leaders as ‘votes’ contractors.’ 34 Al-Turabi, ‘Islamic Fundamentalism in the Sunna and Shia World,’ MSANEW (on the Internet), 6 December 1997.

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after the popular revolution in 1964; his leading role in it as a university professor sealed his career as a politician. The growth in leaps and bounds of the movement since 1964, he confesses, is beyond his wildest dreams (1998, 36). The onus of building a broad ‘external branch’ of the Islamic movement was taken on in earnest by the student sector in a remarkable enterprise of reeducating students away from the elite isolation and naivety. The Islamist students put the University of Khartoum Students Union (KUSU), a widely recognized national institution, to good use after gaining control of it in 1973. In order to build bridges with the people, KUSU organized summer schools and social services caravans to educate the less-educated and treat the sick. In emphasizing daʿwa (the call for Islam) at these events, KUSU connected with rural people and contributed to the expansion of the movement in two ways. First, they gained access to rural Sudan, which neither the central government nor the elite-based parties could reach. Second, the rural people visited by these caravans gained appreciation for the local youth who cared enough to put their villages on the itinerary. These students were later elected in national and regional plebiscites as trusted representatives of their communities (Hamid 1989, 242–247). Once al-Turabi concluded that elites are terribly naive, he became dismissive of their internecine fights for power. For him, the different garbs they assume in these fights, such as military versus civilian, or socialism versus capitalism, were facades of the same group that has sinned from Islam. He explained his controversial alliance with Nimerie’s junta from 1977 to 1985 in these terms. His liberal critics and the hard-liners of his own movement took him to task for coming to the support of a dictator who had only discovered Islam at the twilight of his reign. In his rebuttal, al-Turabi argued that Nimerie resorted to Islam because, thanks to the Islamic movement, Islam’s relevance to politics had been made abundantly clear (Hamdi 1998, 25). Obviously, al-Turabi denies Nimerie any credit for Islamization. In the same vein, his critics blamed al-Turabi for taking Nimerie’s word for it concerning Islamizing the state. He replied that Nimerie’s genuineness was not his concern. Indeed, as a Muslim activist, al-Turabi considered Nimerie’s government as of a piece with the succession of effendi administrations that ignored Islam in their constitutional design. Liberal effendis, he suggests, could decry Nimerie’s junta to their hearts’ content. They only needed liberalism to continue the senseless fight to control a state that is inattentive to God. These elites, who use the good

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offices of traditional and religious leaders to reach the people, have never shared these liberal freedoms with the masses in any meaningful sense. In collaborating with Nimerie, al-Turabi was looking for a room to maneuver for his movement (al-Khartoum 31 October 1988). He was simply not going to abide by the elite protocol of restoring democracy first and leaving ideologies for later. By defining the terms of politics, Islam, al-Turabi argues, succeeded even with a dictator whose life had been marred by sin. The fight as he saw it was for Islam and not for democracy in the abstract. He was not concerned about democracy per se, because, in his view, it is inextricable from Islam. None of the ruling elites was considering the state’s renunciation of religion; the Islamic movement had to forge its own tactics unfettered by the elites’ political approach. ‘Shaykh’ al-Turabi, I Presume Neither al-Turabi’s followers nor his adversaries seem to give him credit for challenging and discrediting the traditional as well as the modern elite authorities in Sudanese culture and politics. Both followers and adversaries continue to perceive him as a cleric, Mahdi, or effendi. A writer once asked whether al-Turabi was attempting to be the Mahdi his ancestor had failed to be (Yasin 1995). Some identify him as Sunni (Miller 1994, 127, 138, 139) for shaykhs are either Sunni or Shia. Those who took note of his work to dissolve the clerical class attributed it to his being a Sunni (Mahmoud 1996, 171; Miller 1994, 139) rather than an independent religious enterprise in which Sunnism itself is deemed redundant. Imitating the Prophet, al-Turabi introduces himself in none of these terms (Hamdi 1998, 48; al-Majalla February 23–March 1, 1997). He further argues that he does not want to identify with a historical conflict that lost all relevance in our time (Hamdi 1998, 86). The West, he goes on to say, found this seam in our belief system and has been working on it assuming a self-appointed mission of protecting the Sunni Muslims from the Shia (al-Turabi 1987a, 36). In honoring him, his followers ended up calling him ‘Shaykh alTurabi’ (Imam 1995), shaykh being a title reserved for clerics, Sufists, and tribal leaders. Although the term evolved in the underground of the Brotherhood during Nimerie’s era as the nom de guerre of al-Turabi, it later stuck. Followers seem to have liked the title because it gives them the respect enjoyed by traditional religious organizations under established shaykhs. A skeptical member of the movement told me that the

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Brotherhood needed a shaykh badly, but doubted al-Turabi was the right choice. For al-Turabi, according to another follower, is too disruptive of his own train of thought and course of action to qualify for such a placid, conservative position.35 His secular adversaries, who have always been suspicious of al-Turabi’s authority, depict him as a shaykh who works ceaselessly to make his power absolute. He is construed as bent on dominating the movement as the sanctified, infallible leader (Sidahmad 1997, 11–12). In delegitimizing the clerical class, he is suspected of claiming that he alone controls the production of fiqh (Mahmoud 1996, 174). The educationalists in his movement dismissed him as a disguised, westernized effendi, and excommunicated him in 1996. His views on a number of cardinal issues of faith were found blasphemous. His call for the democratization of knowledge and his introduction of the state as a source of generation of fiqh were not well received. His call for a dialogue between the Abrahamic faiths was seen as cheapening Islam: the last and the correct message of God. His lax attitude toward jihad did not endear him either. Denying that he is a Sunni, the epitome of the Islamic faith, is seen as depreciating the salaf. His suggestion that apostasy is constituted by rising up in arms against the community of Muslims and not by availing oneself of the intellectual option of changing to another religion, outraged his adversaries, as did his statement that had Salman Rushdie been tried in Sudan, he would not have been sentenced for apostasy (Idris 1995; Muhammad 1996; al-Watan 12 December 1988 and 11 January 1989). For the educationalists, al-Turabi is an unrepentant apostate.36 The most pronounced statement of his apostasy was issued in a lecture delivered by Jaʿfar Sheikh Idris, his avowed opponent since the 1960s, in Khartoum in late 1995. The lecture was by and large a rehash of a litany of the alleged heresies of the man long circulating among the initiated. The title of the lecture was ‘Hasan al-Turabi: Secularism in Islamic Garb.’ Of all the forms of secularism, al-Turabi’s is denounced

35 Rabiʿ Hasan Ahmad and Sayf Muhammad Ahmad, personal communication, Khartoum, 1996. 36 An opponent of al-Turabi, for instance, had been circulating a statement since 1982 denouncing him for flaunting his disbelief in the resurrection. One’s death, alTurabi is alleged to have argued, is one’s resurrection. In holding him as an apostate, the opponent withdrew from a line of prayers when he saw that it had been al-Turabi who would lead the prayers (al-Watan 17 October 1988).

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in the lecture as communistic because, unlike in Western secularism, it includes the persecution of religion by the state. Women and Art: Time to Welcome Them in the Fold of Islam Modernity poses a formidable challenge to Islam in the areas of women and art. Women, or rather, the concept of the harem, have been the trump evidence that Islam is incompatible with modernity. Similarly, the iconoclastic imperative in Islam has made some conclude that the little art that flourished in Islamic civilization did so despite Islam (Ibrahim 1994, 7–8). Conscious of the negative legacy of Islam in these two vital fields of modernity, al-Turabi calls the challenge of reconciling women and art to Islam a miḥ na (a soul-searching trial) (al-Turabi 1987a, 115). The difficulty of Islam here is twofold. First, the conclusion reached even by Muslims that the development of women and art in contemporary Muslim societies is conditioned on their break away from Islam. Second, the difficulty one faces in sorting out historical religiosities influenced by patriarchy from the religion of Islam. In al-Turabi’s view, this dominant patriarchy was too dismissive of women and art to allow Muslims to connect with the original hospitality of Islam to gender and the aesthetic. Women: Who Exiled Them from Islam To rehabilitate women in Islam, al-Turabi argues, emphasis should be on the fact that the religion, as a discourse, addresses both men and women forthrightly and without discrimination. Addressing the issue was as old as Islam itself. The issue, al-Turabi say, was in fact raised by a woman who complained to the Prophet that verses had been addressing men to the exclusion of women. Verse 35 of Surah al-Ahzab (chapter 33) of the Qurʾan made amends. For each mention for a masculine category or attribute, a feminine equivalent is made ([1973] 1989, 6–7). Al-Turabi would blame Islamic religiosities for the subsequent absolving of women from responsibility as worthy Muslims. Al-Turabi’s own experience growing up in mid-century urban Sudan may shed light on his focusing on women’s worth in religion. Although endorsing colonial modernity as far as the education of boys is concerned, the pockets of urban population, few and far between, at that time ignored it when the call for girls’ education was made. In a qadi’s home, according to al-Turabi, this revulsion against girls’ modern edu-

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cation took its seal of approval. In my interview with him, al-Turabi said he had never reconciled himself to being so privileged to pursue his education while his sisters, four of them, were denied schooling. He originates his consciousness of the predicament of women to this family experience. In the interview he said, ‘To tell you the truth I felt even then that was unfair. For me it was a close and very personal experience of discrimination . . . The physical evidence is right in front of you. You go to school, your sister does not. It was not like something that had happened in distant history or told in a story.’ His sisters ended up having a good home and religious education that was perhaps more than girls in effendi families might have gotten at that time. Al-Turabi’s early exposure to the basic precepts of religion, thanks to his father, made him see the discrepancy between how these fundamental realities, in contrast to historical fiqh, actually locate women as competent worshippers. As a schoolboy, he began engaging his peers and seniors in discussions about this variance. Disarmed by al-Turabi’s arguments based on Qur’anic verses and the Prophet’s traditions, people ignored him as an argumentative child. In our interview, he gleefully used ‘shock,’ the English word, to describe the outcome of his arguments with his unimpressed audiences. His childhood experience of unauthorized discrimination against women continued to stalk al-Turabi. In his summer vacations in Sudan as a graduate student in England and France, he gave talks on women’s rights to ambivalent, if not antagonistic, audiences.37 In a visit in 1957, he created a furor within the Brotherhood when he lectured about the liberation of women in Islamic terms.38 An old friend remembered the commotion resulting from a lecture given by al-Turabi about women during a vacation he spent in Sudan from France. Conservative Muslim

37 Judith Miller suggests that al-Turabi’s stay in England made him ‘endorse the principles of women’s liberation’ (1997, 202). Although this sojourn might have sharpened his appreciation of women’s rights, al-Turabi had been concerned about these rights before going to Europe. This is only natural because colonial modernity made girls’ education and employment part of the local discourse on the future of the country. Al-Turabi said elsewhere that he had been worried by the political gain communists had made among women students and women at large by advocating women’s rights to the chagrin of the Brotherhood (1989a, 137). 38 Al-Turabi continues to dismay clerics and jurists by his unconventional views about women. In 1996, he was rebuked for endorsing a fatwa allowing a Muslim woman to be taken into marriage by a Christian or a Jew, that is, kuffār or unbelievers (al-Muslimun 31 May 1996). He was again denounced as an apostate for repeating the same ideas in 2006.

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groups such as the Ansar al-Sunna, influenced by the Saudi strict religious outlook, and Sufi leaders, were not amused by al-Turabi’s call for unfettered girls’ education and their later incorporation in public service. Even his peers in the Brotherhood were reluctant to endorse his ‘rash’ views on women (Abdalla 1996). As late as 1988, al-Turabi was eliciting the same negative response to his views on women. In face of strong opposition to co-education at the Islamic University of Omdurman, he was strongly supportive of it because ‘isolating women is bad for both women and society. Unlike what some believe, co-education does not lead to fitna (chaos)’ (Malik 1988). Al-Turabi’s treatise on women and Islam culminates his theoretical and political practice in the field of women’s liberation in 1973, when it was published.39 The caution taken before its publication indicates the sensitivity of the women’s issue in contemporary Islamic discourse. First, the book’s manuscript was circulated among activists before its publication by way of testing the water. Second, it was reportedly shown to an Azharite scholar and member of the Egyptian Muslim Brotherhood to check it out, and gain his approval of it (Mahmoud 1996, 175). The strategy of the book was to go beyond apologetic Islam to the practice of original Islam. Al-Turabi wanted his book to move from merely stating that Islam has always been kind to women and will remain so, to engaging women’s rights as part of the ibtilāʾ package. He concedes that women have been victims of a plethora of degrading practices emanating from Muslims’ historical religiosities. It will be self-defeating, if not downright dishonest, he argues, to defend these practices for the wrong they have inflicted on co-believers for so long and so harshly. In believing in the comprehensive correctness of the tradition, apologists, in al-Turabi’s view, avoid facing the challenge of ibtilāʾ, which requires a critique of Muslim religiosities. Al-Turabi seeks in his book to reclaim the original discourse of religion in which women were directly and clearly addressed as religionists on equal footing with men.40 The woman that emerges from this original discourse, as presented by al-Turabi, has human agency in her own 39 Unlike other treatises by al-Turabi, this book is filled with quotations from the Qur’an, the traditions of the Prophet, and narratives from the lives of his Companions. These ‘fundamentals’ are recalled to shore up against attacks from conservative quarters. 40 Al-Turabi said in our interview in 1996 that he would take visitors from the Arab Peninsula to women jihad parades in Khartoum to show them what women, liberated from patriarchal patronage, are capable of doing as good Muslims.

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right and is a subject worthy of God’s taklīf (commission to worship Him and stand accountable on the Day of Judgment). Family, in God’s scheme, according to al-Turabi, is not a unit of accountability on the Day of Judgment. Individual members of the family, however, whether they are men or women, are. ‘And every one of them will come to him singly on the Day of Judgment,’ he says (al-Turabi 1973/1989, 5). In emphasizing the essentials of Islam, al-Turabi questions the historical religiosities in which the custom of patriarchy dominated to the detriment of the original message of Islam. This custom of Arab, Iranian, and Indian males, he argues, made family honor and male’s whims more sacred than religion ([1973] 1989, 31). The observed lowly status of women in Muslim societies, he maintains, is therefore a function of the dominance of patriarchy. In piously concluding that historical Islam was fair to women in defiance of evidence, apologists for Islam evade critiquing this patriarchy. In tandem with the custom of patriarchy, or perhaps as a consequence of it, historical religiosities evolved that have been depreciative of women. This historical fiqh still operates under the principle of sad al-dharāi’ (blocking means leading to evil), that is, designating as prohibited all situations that are even faintly suspected to lead to the corruption of Islam. To avoid the fitna (disorder) women bring to the public realm (Mernissi 1987, 31), this fiqh, in al-Turabi’s view, delegitimized all public encounters between men and women thus violating women’s rights according to the original message of Islam ([1973] 1989, 32).41 In prayers as well as political consultations, the community of the Prophet did not discriminate against women ([1974] 1984a, 126, 129). To deny women access to public life, al-Turabi argues, is too high a price to ward off fitna. Al-Turabi overhauled his movement to do away with the custom of patriarchy. The early recruits of the movement, he says, were basically the product of this patriarchal education in which religion is seen as men’s business. Islam, in the view of this conservative piety, did not even

41 Al-Turabi plays down the most popular tradition attributed to the Prophet on blocking women’s way to the public arena. A people who entrust women for holding public office, the tradition goes, will never make it in life. He sees this tradition as too tied to a specific situation to be a general teaching on women. In this regard, he argues, he is inclined to take traditions and interpretations that give women the right to be judges, for example. Not even women leading prayers, according to al-Turabi, is a far cry in Islam. It is certain that they can hold public offices and issue fatwas (al-Ayyam 20 June 1988).

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look good on a young woman. Hence the early recruits, who attached no significance to women in Islam, were embarrassed to foster contact with women secluded by the patriarchal hierarchy. The Brotherhood had to review its stand on women after the 1964 Revolution in which women stormed the public arena as full citizens largely under the banner and influence of the SCP. Islamic activists were dismayed that women’s votes went to communist candidates rather than Islamic ones. Scared that this liberation would forever be defined in Western terms, the Islamists rushed to accommodate the women’s liberation practice that had been taking place under their own eyes. The movement therefore pioneered the call for enfranchising women. Reclaiming the fundamentals of Islam to foster this liberation came later though. In the quiet of prisons, as detainees of Nimerie’s regime in the late 1960s and most of the 1970s, activists of the Brotherhood had the leisure to read the essentials of Islam on women. They were shocked to realize that it was patriarchy that they had been advocating rather than Islam. Al-Turabi’s book on women is the complete expression of the reflections of the cadre in these circumstances ([1973] 1989a, 136–138). The Brotherhood adopted a modernized plan to bring in women into its own male-dominated structures. Women recruits, who had been carefully isolated in women’s branches before, were integrated as full members in gender-blind usar (families), the basic organizational unit of the movement. In a few years the movement reaped the profit of this investment in women. Women, in al-Turabi’s assessment, flocked as good Muslims competing with men and even excelling in performing their political and religious duties. So much so that by the late 1970s and early 1980s some branches had more women than men (1989a, 138; Hamdi 1998, 19). Al-Turabi concludes his report on his successes in the field of women’s liberation by returning to his concepts of religion and religiosity. AlTurabi argues that the movement was set right on the track of religion by practicing it rather than apologizing for its historical religiosities. Women trusted and joined the movement not because it teased rights for them out of its negative fiqh. They came to Islam because they saw the potential of lifting their historical predicament in a movement that did not shy away from criticizing religiosities, which were hospitable to the custom of the patriarch instead of the custom of Islam. Had the movement remained a prisoner of apology, women could have seen it as dishonest and not worthy of their confidence (1989a, 140).

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Art: A Corridor to God The murūq (desertion or defection) of art from religion poses the ibtilāʾ of returning it to God. The job of reconciling art and religion is formidable considering the modern belief that religion, as such, is not good enough for art. Both religion and art, al-Turabi argues, lost considerably due to this divorce. On one hand, religion has been denied a unique corridor to God whose aesthetic means of mediating nature and society are by far more superior and subtle than rational thinking (1987a, 90). Art, on the other hand, lost out by deserting worship as a source of infinite inspiration for people throughout history. Al-Turabi argues that art has to ally with religion for its enterprise to be lucid and meaningful. In straying from the church, European art, found itself venerated by wealthy classes, which literally turned it into an idol and fetish. Outraged by the materialism of these classes, al-Turabi maintains that art sought spiritual refuge in bohemian, romantic, and an array of radical escapades. In socialist Europe, it prostituted itself to megalomaniac states and parties. To avoid these abuses, art indulged in self-glorification which led it to claim being, like religion, a spiritual experience in its own right (1987a, 107–108). ‘Art for art sake,’ al-Turabi says, became the chant of supplication of this new idol in Europe in which religion was denied any meaningful role in life beyond the church (1987a, 91). Muslims, in al-Turabi’s view, cannot afford worshipping God in disregard of art. Art, thanks to modernity, has become too suffused in media and technology for Muslims to ignore if they want to be worthy of God (1987a, 109–110). However, Muslims, al-Turabi argues, are unfortunate because they will begin engaging art in worshipping God unaided by their historical fiqh. Due to overemphasis on combating idols and the evolution of strict Islamic moral codes, this fiqh banished the aesthetic from the resources of piety and monotheism (1987a, 115). Yet such concerns did not prevent the Prophet’s community, according to al-Turabi, from appreciating art. Poetry, for example, was mobilized to defend religion faithfully and truthfully. In al-Turabi’s view, the strong disapproval of art in extant fiqh was a result of the expansion of Islam outside Arabia. This expansion not only precipitated a plethora of unfamiliar art forms and instruments, but also brought Muslims into contact with affluent classes indulging in art as a frivolous experience of hedonism and debauchery. Although Sufists picked up some of these arts and instruments to enhance their spiritual experience, fiqh saw in

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the foreignness of these arts and the habits of wealth surrounding them, a recipe for disaster for religion. In their disapproval of art, jurists, by commission or omission, allowed art to recede from religion just like the state and economy (1987a, 102). This state of affairs caused the men of religion to turn their back on art. Artists, on the other hand, ignored religion (1987a, 102). Jurists, al-Turabi states, failed to see the relevance of art to piety. Even poetry, a delight of the Prophet’s community, was slighted to preempt arguments intended to extend the legitimacy granted by the Prophet to poetry to the frivolous arts of the empire (1987a, 102). In al-Turabi’s view, jurists also exhibited Arabocentrism in sanctioning or approving art forms and instruments. For example, jurists did not find a great difficulty condoning musical instruments known to Muslims in Arabia, but frowned upon those that came in the wake of the expansion of Islam to other races (1987a, 103). In our ibtilāʾ with the aesthetic, al-Turabi argues, we need to come to grips with how religiosities chased art out the realm of religion. In reclaiming the original endorsement of art by religion, we need to go beyond the Arabocentrism of fiqh by accepting all forms of art in order to better worship God (1987a, 107). Importantly, al-Turabi emphasizes the need to bring artists to an intimacy with God’s way (1987a, 115). For solace and reward, he concludes, artists will enjoy the admiration and love of Muslims and not the state (1987a, 118). The Transformative Power of the Theology of Modernity Those who perceive al-Turabi’s Islamic renewal as religion as usual in the al-Turabi’s family tradition have not taken account of his charisma and the modernizing energies he has unleashed in Sudan. In less than four decades, his theology of modernity transformed the Muslim Brotherhood of the 1940s and 1950s beyond recognition. Perceived as a throwback policing the morals of students in a context of colonial modernity in the late 1940s (el-Affendi 1991, 49), the Brotherhood was disparagingly called al-Kayzān (pl. of koz, the rural word for ‘cup’) by other political factions as we indicated in Chapter 1.42

42 For an interesting parallel for using ‘cups’ as a measure of tradition and modernity, see Cohen and Odhiambo (1992, 72–73).

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Even al-Turabi, as we mentioned in a previous chapter, declined the invitation to join it during his high school days.43 We also indicated how President Nimerie saw them as throwbacks during his high school years for asking soccer players not to wear shorts. ‘They wanted us to wear sharia shorts, I guess,’ he said (Fawzi 1991, 55–56). Further, he confessed that he thought of al-Turabi as darwish (dervish) during their years of cooperation in the 1970s and early 1980s (al-Majalla 19–25 March 1995). Underestimating the Brotherhood had some negative consequences. For example, it is said that the security chief in June 1989 derided his men for watching meetings held by the Brotherhoods instead of focusing on those who wielded real power to effect a coup (Taha 1993, 287). The June 30, 1989 coup, whose junta is still in power in collaboration with the Brotherhood, proved the security chief unredeemably wrong. Al-Turabi’s theology has converted the Brotherhood conceptually and organizationally to a state of modernity that has been the envy of his enemies. It has prevailed among the most pronounced constituencies of modernity such as students, effendis, and army officers. It rendered the elections of the students’ union of the University of Khartoum, the headquarters of colonial modernity, a non-event due to the landslide victories it has been scoring since 1973. No wonder it won the special graduates’ constituencies of the 1986 elections by landslide. Finally, an officer assessed its impact on the military for me in 1987 in the following terms: ‘The officers whose carousing and seducing girls was a second profession, come now in droves to prayer when muezzins call for them.’ Touched by the Theology of Modernity: Hasan Makki M. Ahmad, the Aborted Effendi The transformative touch of al-Turabi’s ideas shaped the lives and careers of his followers. To drive this point home, I will present in this section a profile of two leading members of the Brotherhood whose careers were influenced by al-Turabi’s theology of modernity. These members are Hasan Makki M. Ahmad, a prolific writer and a historian of the Brotherhood, and Muhammad ʿAbdalla Jar al-Nabi, a multimillionaire businessman with international connections. Thanks to the education

43 Interview with al-Turabi, Khartoum, 1996. For the intellectual contempt in which modernist held al-Kayzān, see the rather amateurish psychological profiles in Ibrahim (1991, 142–163) and Muhammad al-Makki Ibrahim (1996).

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and impetus of the Brotherhood, both became national figures transcending the limits their provincial and rural modest origins might have imposed on them. Ahmad confesses that his decision to join the Brotherhood as a freshman in high school in 1966 was an outcome of his ambivalence toward the effendi class in his hometown, al-Hasaheisa, an administrative center an hour’s drive south of Khartoum. As a shopkeeper’s son in a rural town, Ahmad interacted with effendis when they came shopping in his store. He said he eavesdropped on their conversations, came to know their concerns, and could easily identify their style in talking. He also took note of their clean clothes and polished shoes. He would see them in the evenings drinking alcohol in bars in the town. ‘I liked their life,’ he admitted ‘and wanted to be an effendi myself in the future.’ This desire motivated him to study hard, pass the entrance exam to high school, and join the prestigious Hantub High School of which al-Turabi himself is an alumnus (1995). As an avid reader, Ahmad was following the confrontations between President Nasser of Egypt and the Muslim Brothers which led in 1966 to the tragic execution of Sayyid Qutb whose Ma’alim fī al-Ṭarīq (Signposts) (1963) has been inspiring the most radical movement of Islamic renewal (Abu-Rabi’ 1996). Ahmad was first introduced to the book by a negative review of it in an Egyptian magazine by Ahmad Baha al-Din who was a leftist writer supportive of Nasser. Motivated to read the book beyond this negative review, Ahmad looked for the book, purchased it, and committed its introduction to heart. In recalling this incident in the context of his desire to be an effendi, Ahmad seems to suggest that the moral laxity and foreignness of the effendis of his hometown made him vulnerable to Qutb’s unforgiving condemnation of Westernization at the root of Muslims’ neo-Jahiliyya (pre-Islamic times). Under these preliminary vague, yet powerful impressions, Ahmad picked up from Qutb the notion of the need to reeducate the effendi in his religion, Ahmad signed up with the Muslim Brotherhood at Hantub High. His appreciation of this membership came later when he had the opportunity to listen to al-Turabi who took over the leadership of the Brotherhood in 1964. ‘I listened to him,’ Ahmad writes, ‘and found him expressing ideas and views my home town had never prepared me for neither in the market-place, the clubs, nor movie theaters’ (1995). The boy’s ambivalence about the effendi class, which both dazzled and alienated him, was resolved by joining a movement determined to

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bring Islam to bear on a life that had been assumed to be an effendi’s enterprise completely disassociated from religion. Touched by the Theology of Modernity: ʿAbdalla Jar al-Nabi, the Oil Tycoon Muhammad ʿAbdalla Jar al-Nabi was interviewed recently on his financial and national successes on the occasion of the opening of the oil refinery he built in the country. In the interview, he attributed his orientation toward business to his membership in the Brotherhood as a high school student in the 1960s. In reading the literature of the Brotherhood, he became convinced that the major problem Islam and Muslims face is economic backwardness that made them vulnerable to European colonization. He was inspired by this conviction to want to study economics. Impatient to spend the full four years of high school, he decided to sit for the university entrance exams as a junior. In his move to skip a year of high school, Jar al-Nabi might have been emulating al-Turabi who also sat for college entrance exam as a junior and passed it to join the Faculty of Law of the University College of Khartoum in 1952. On the refusal of the school to allow him sit prematurely for the exam, he moved to Khartoum and sat for the exam as a home student. He passed the exam and joined the faculty of Economics of the University of Khartoum. As an activist of the Brotherhood in college, he was detained twice and used the prison time to commit the Qur’an to heart. After graduating from college, he decided to enter business to put his learning to good use. He states his mission as a Muslim economist as follows: I was determined to look for an alternative economics abandoning that of Kenyes and Adam Smith. I wanted to find a practical solution to the economic problems of Muslims. To this effect I participated in various discussions about Islamic economy and, in practical terms, bought shares in businesses that have been experimenting with this economy [such as the Muslim Monetary Fund, the Islamic Solidarity Bank, the Islamic Bank of Western Sudan, the Islamic Development Corporation]. My objective was to contribute to laying the grounds for Islamic economy that we can hold dear both as a faith and a theoretical possibility. I also wanted to contribute to the progress of the Brotherhood in financial terms (alRayaam 25 June 1999).

The priority of supporting the Brotherhood by focusing on its finances dawned on Jar al-Nabi during his detention in the 1970s. Concerned

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about the commitment of the activists and their families to the cause in the face of loss of income due to long detentions, the detainee discussed the need to establish businesses in sympathetic neighboring countries to support the movement. Jar al-Nabi said he took a mental note of the rise of Idi Amin (1971–1979) to power in Uganda with his Islamic orientations. Uganda would be Jar al-Nabi’s first destination in his long walk to financial success. In 1973, Jar al-Nabi graduated from college. To pursue the financial support of the imprisoned cadre of the movement discussed in detention, he met with some of his young fellow activists. A deal was made whereby he would take care of financing the movement while they would remain in Sudan and attend to the politics of the Brotherhood. He left for Uganda and began a construction business. His first profit, fifteen hundred dollars, was donated in full to the coffers of the Brotherhood. His business met success and in less than a year he opened an office in both London and Libya, where the Brotherhood was actively working to topple President Nimerie. According to Jar al-Nabi, his office in Libya was a mere cover for the Brotherhood allowing it to rent houses, obtain visas, and look after the well-being of the activists. Later, he moved to Saudi Arabia where his construction company began doing business with oil companies. Building the refinery in Sudan drew from the connections and expertise he gained in Saudi Arabia. But his business in Uganda faced considerable loss after the Tanzanian invasion of Uganda in 1979 that ousted Idi Amin. He did not abandon his business in Uganda though. He kept a core of his staff to safeguard his long-term interests in Uganda which he deemed strategic to Sudan politics and diplomacy having been the host of generations of southern Sudanese rebels. After the political deal between Nimerie and the Brotherhood in 1977, Jar al-Nabi opened a branch of his business in Sudan. It is the same branch that built the refinery for which Jar al-Nabi received national recognition as a nationalist who liberated the economy from depending on foreign companies, and as a story of success that makes his nation proud of him (al-Rayaam 25 June 1999). Seen as a rural idiocy, fundamentalism was essentially identified as a retreat from modernity. Further analysis of its nuances has led scholars to see how fundamentalists have been engaging modernity in their own creative and alternative ways. The profiles of Ahmad and Jar al-Nabi throw more light on the encounter of Islamic renewal with modernity. It is worth noting that both of them eased into modernity according to a prescriptive theology, and not randomly. Ahmad is clearly an aborted

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effendi project reeducated to engage in an alternative Islamic modernity in which the separation of religion and state is untenable. Jar al-Nabi, on the other hand, represents al-Turabi’s call for worshipping God via all pieties including the one of successful business. The Muslim Brothers’ modern ways has been ‘protested’ by their modernist detractors. De Waal notes their deft investment in the education of their cadres (1994, 48) especially in the art of communication. Some modernists decried their ‘Americanism’ in putting computers to good use during the 1986 election in which they came third running neck and neck against historically entrenched parties. The communists decry them for the seemingly unlimited funds they garner from their smoothly run Islamic banks (Nugud 1989, 46). Instead of looking at the work and success of al-Turabi and his movement, modernists and Western writers have indulged in a ritual of al-Turabi bashing. He has been compared to a range of bad Europeans from Machiavelli to Rasputin. This litany of bad guys reads like a veritable ‘who’s who’ in the Western book of horror. From the barrage of invectives lashed against al-Turabi (Ibrahim 1999a), Mark Husband concludes that neither Western writers nor Muslim modernists, for that matter, have really ever spoken a good word about him (1998:159). However, al-Turabi fatigue seems to have crept in the scholarship about the man. Reviewing some writings on al-Turabi, M.E. Yapp advised against al-Turabi bashing for it has impaired critical judgments on ‘a brave and original thinker’ with a remarkable ability to bring about change (1997, 5). This analysis of al-Turabi’s theology of modernity is a step toward engagement with his ideas. Conclusion Growing up in a qadis’ home has been used to explain away al-Turabi’s religious experience rather than explain it. Scholars have used it to locate al-Turabi in a family religious tradition incompatible with the modernity of al-Turabi as a graduate of modern education. Al-Turabi’s experience indicates that he perceived the conflict of modernity and tradition differently. He did not view modernity and tradition as cultural realms of chronological significance. Rather having experienced the degradation of his father’s law as a function of power and not an inherent disability, he has focused on Islamizing the state to endow tradition with the power and respect to negotiate the ibtilāʾ of modernity. Instead of seeing a synthesis of modernity and tradition lying in updating tradition to suit modernity, he overhauled both by making them begin talking with,

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instead of, at each other. To this effect, he engages in several Oedipal ‘father-killings’ of the established elites in both realms. Modernity and tradition are not incongruous as both effendis and clerics want us to believe. Their alleged conflict, according to al-Turabi, stems less from an intrinsic incompatibility than from the mental habits of the custodians of the two cultural orders.

CONCLUSION

THE DIFFICULT BIRTH OF THE UNIFIED JUDICIARY

Postcolonial Blues ‘Aren’t you just sick and tired of this country of ours just going backward?’ ‘Had it been going backward right, it could have gotten us somewhere.’ ‘How are you?’ ‘Screwed up. I feel like hanging between the earth and the sky.’ ‘Aren’t you lucky? You seem to know where you are heading.’

A Beja (a group known for hilarious wit among northern Sudanese) man was distressed because the headmaster had dismissed his son from school for repeating first grade three years in a row. The Beja came with this excuse: ‘Headmaster, Sir. My son is not stupid or lazy. No, please. The first grade just grew on him. That is all.’ Reimagining Decolonization This chapter is a conclusion in a different sense. It could have stood in its own right as a regular chapter since we will discuss the difficult birth of the unified judiciary between 1956 and 1985 to illustrate the postcolonial predicament. Rather than summing up the preceding chapters, we will bring their arguments on this predicament to shed light on the deliberate extension of this amalgamation, and the immense cultural hurdles it ran into. Far from being mere labels of different judicial systems, the Civil and Sharia Divisions, as colonial taxonomies, proved, in the process of their amalgamation, to be ‘totalizing forms of control’ (Dirks 1992, 5) fraught with violence and administrative terror. The reluctance of both qadis and judges to amalgamate the Judiciary shows the power of the Manichaean deliriums stalking the postcolony and stalling the process of decolonization. The call to decolonize former European possessions after half a century of their formal independence has taken center stage. Scholars have started seriously to question whether we really know what colonialism

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was, and if decolonization has ever taken place. Pieterse and Parekh say, ‘[We] still await a satisfactory analysis of its [colonialism] nature and its impact on both the metropolitan countries and the colonies’ (1995, 2). Said states that we are theoretically still at the stage of trying to ‘inventory the interpellation (emphasis in the original) of culture by empire’ (1993a, 61). Not even the complaint that colonialism was exploitative, Pieterse and Parekh argue, has been worked out (1995, 2). William Roseberry is struck by how little authors, at a time of so much production in postcolonial literature, have actually very little to say about the state under colonialism or after (1995, 13). Pietersa and Parekh argue that decolonization has shown a lack of clear focus and target (1995, 2–3). Misguided, it sought to discard institutions, identities, and values deemed to be foreign. But colonialism, as a highly complex process, shaped the colonies in such a way, they argue, that the colonies risk rejecting parts of them by rejecting a supposedly colonial relics (1995, 3). In the realm of the decolonization of culture, we have not scratched the surface. Scholars agree on the urgency to analyze the effect of power suffusing imperial domination that has been ‘built into the notions of race, progress, evolution, modernity, and development as hierarchies extending in time and space’ (1995, 2). Decolonization proved to be a more contentious enterprise than had been predicted by the nationalists. Reality continues to belie the assumptions that decolonization has been a ‘shared culture’ bringing the colonized into a common front of liberation (Smith 1999, 45). In the debate of decolonization, Pieterse and Parekh argue that there cannot be a consensus because ‘decolonization is as complex a process as colonization, generating extremely varied responses’ (1995, 16). The history of the Sudan Judiciary presented in this book shows that decolonization is a local site of fierce contests. The conflict of the qadis and the civil judges clearly shows that these two groups of the national elites rarely saw eye to eye the reform of the Judiciary in the postcolony. For the civil judges, decolonization meant a reauthorization, or reinscription, of their colonial privileges rather than the ‘imaginative creation of a new form of consciousness and way of life’ (1995, 3). The qadis, on the other hand, were always conscious that decolonization was too precious to be entrusted to civil judges groomed and entrenched in power by the colonialists. They continued making the association between decolonization and the annulment of colonialism. The more they suffered under the civil judges the more they simplified the return to a past that had been disrupted by the coming of the infidel conquerors.

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Scholars are revisiting the miscarriage of decolonization as a crisis in the imagination of the decolonized. This picturing of the issue evokes the anguish of Marlowe in Heart of Darkness. On his return to England from Africa where he saw ‘the horror, the horror’ of the colonial encounter, a sickly Marlowe asks his aunt, who fusses over his health, to sooth his imagination rather than nurse his health (in Gourevitch 1998, 7). Imagination, a monopoly of poetics, thanks to Benedict Anderson (1983), has been rehabilitated in politics. We no longer think of nations as a product of tangible constitutive factors such as language, economy, genealogy, etc. Rather a nation, according to Benedict, is imagined into existence. In understanding decolonization, the focus has shifted to the working of the imagination of the colonized in wrestling with the ways to manufacture the nation. As recently as 1999, a call to decolonize the mind is justified by the way colonialism has been controlling ‘our heads’ (Smith 1999, 23). Focus on decolonizing the imagination comes from the evolving understanding that colonialism itself is a product of an imperial imagination located within the enlightenment spirit. Colonization became inseparable from the development of the modern state, of science, of ideas, and of the ‘modern’ human being (Smith 1999, 22). This makes colonialism a more subtle and insidious effect than the nationalist resistance discourse of subjugation and exploitation might have acknowledged. The nationalist notion of resuming one’s original, authentic history after independence is the flip side of this simplification of the colonial enterprise. No wonder decolonization degenerated into a lethal state culture of legitimacy and authorization. Political elites either sentimentalized the past to ‘authorize their present power’ (Appiah 1992, 156), or used it to terrorize the population into submission as in Nimerie’s Islamizing of the state, the ‘authenticite’ regime of Mobutu of Zaire (Schatzberg 1988), or the ‘Chatitude’ of Tombalbaye of Chad in the 1970s (Collelo 1990, 23).1 Decolonization is thus turned into a ritual of power whose banalities clearly betray, in Said’s words, an ‘ethnocentric and erratic will to power’ (1983, 131). Equally, putting the blame on colonialism for the mess in Africa in the manner nationalists perfected since their days of fighting for self-determination

1 To break the back of a restive urban class, Tombalbaye made 3,000 civil servants go through the yondo, a traditional harsh physical and psychological initiation rites practiced in southern Chad (Collelo 1990, 23).

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has brought us to the brink of a standoff of blame and counter-blame (Said 1993a, 81). Westerners have been responding to their detractors who shame them for colonialism. Their responses vary but some are strongly recommending the return of European colonization of Africa. Some justify this recolonization as an undertaking to make amends for opportunities missed by previous colonialists in really helping Africa (Pfaff 1995). Others, of course, want to rescue the continent from itself (Johnson 1993). A call to decolonizing the mind was made to emancipate and engage the imagination. Far from being a campaign for a retrieval of an unsullied past, decolonizing the mind, according to Partha Chatterjee, can be made only by reckoning with the colonial knowledge that permeates it (1993, 13). In being intellectually raised to see the West as the ultimate model for progress, the colonized elites found themselves bereft of this power. What is left to imagine, asks Chatterjee, when these elites, the sentinels, accepted imagining their nations from certain models ‘already made available to them’ by the West? (1993, 5). Decolonizing the ‘inheritor states’ bequeathed by colonialism called for the ‘deimperialization of the state’ (O’Callaghan 1995, 8). This was unacceptable to the colonized elites for fear that such radicalism would have played into the hand of subaltern groups, such as the qadis, whose concept of decolonizing was a stretch. The sentinel chose the ‘order’ bequeathed to them by colonialism to abort decolonization, which is essentially a program of complete disorder (Fanon 1968, 59). Decolonization seemed to be dead on arrival with a glorious nationalist past behind it, but with neither present nor future. In being held hostage to a past masquerading as a future, Dirks, inverting Marx, says that the colonized have been making new histories of old farces (1992, 24). Decolonization thus became essentially a critique of the nationalists of the former colonies who failed to invent a new legitimacy beyond resistance to colonialism. According to Said, this resistance ‘was only one of the aspects of resistance, and not the most interesting or enduring one’ (1993a, 266). Each of these ‘inheritors states’ had to become its own nation-state, Davidson maintains, or at least pretend to be one (1992, 183). To invent the colony into a nation, the nationalists were supposed to work for a new legitimacy. Imagination provides this legitimacy by creating coherence and seeming unity between ideas and actions by the ‘selecting out and rearrangements of facts’ (Pieterse and Parekh 1995, 22). We have seen in this study the unwillingness of nationalists like al-Azhari to invest in this new legitimacy. They quickly turned

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into a conservative force holding on to a legacy of national resistance and pride in an independence citizens have increasingly dubbed ‘flag independence’ for not going beyond political sovereignty. The Cold War, in whose context decolonization had taken place, dealt a deadly blow to the imagination of the new nations which grew out of old colonies. The confrontation of the Soviet Union and the USA, which was basically a war of hawking comprehensive models of progress, denied the ruling elites in the former colonies the right and the ability to envisage their new nations. Davidson is surprised that the USA, the greatest radical innovator of the nineteenth century, discouraged radical innovation in Africa to protect its global interests (1992, 193). The Russians, on the other hand, compromised their radicalism by an imperialist-minded policy headed by the KGB and a Stalinism which was at variance with the facts of everyday life. The post-Stalinist bureaucracy, he adds, debased the little idealism that had survived Stalinism (1992, 195). This bureaucratic socialism obstructed ‘fresh latitudes for African questioning of the postcolonial dispensation.’ Open-minded debate on basic issues of decolonization had little ground because the Cold War rivalries forbade ‘any far-reaching innovation’ (1992, 193). The unrelenting rivalry of these two ideological elephants hurt the grass: the former colonies. These colonies therefore never became nations. In their faked imperial boundaries they were turned into ‘vacuums in which conflicts fester’ (The Financial Times 24 February 1999). The ‘Primitive’ War of the Divisions This conclusion will discuss the difficult birth of the unified judiciary symptomatic of the failure of the nationalist elites to shake off the grip of colonial Manichaeanism. The role of this Manichaeanism in disrupting the decolonization of judiciaries of former colonies has been missed because the workings of these institutions have been couched in the language of reception, duality, and modernization. This posing of the issue prejudiced the discussion in favor of modern law. Focusing on structure rather than on the dynamics of power, the language of dualism conceals the impact of colonialism on the colonized (Merry 1991, 890). As Manichaean spaces, the Civil and Sharia divisions represented structures of power rather than neutral realities of jurisdiction. True to Fanon’s prediction, even when the two divisions were forced to merge a

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number of times, because of their mutual exclusivity, they never came to the service of a higher unity, in our case, a nation. Not unlike other former colonies, Sudan has been grappling with a dual legal system. The challenge before her legal professionals continues to be how to fashion a unified legal system out of this duality, and how to reconnect with their legal traditions including Islamic law. Similar to former colonies, the stalled merger of the court system in Sudan can be attributed to viewing this merger in technical terms ‘denuded of the dynamics of power’ (Merry 1991, 919) that brought them into being or has perpetuated them since independence. Blaming the powerless is inevitable when one ignores the element of power in the structuring of institutions. Salman, a civil law scholar, for example, is critical of the constitutional amendments of 1965–1966 and the Sharia Courts Act, 1967, which addressed the qadis’ historical grievance and rectified them, for turning the duality of the Judiciary into complete parallelism. (1977, 105). His criticism of sharia authorities for ‘Balkanizing’ (1977, 82) the Judiciary aggravating its dualism comes out in his discussion of the memo submitted by the Grand Qadi to the National Committee for Drafting the Constitution in 1967. In this memo, the Qadi, not unexpectedly, urged the Committee to preserve the independence of the Civil and Sharia divisions of the Judiciary. Salman faults the memo for the ‘sectionalization’ of the Judiciary. He adds that the memo neither offered any good reasons for its support for the dual judiciary nor dealt with any of the problems emanating from it (1977, 106). Salman criticizes the Qadis’ memo for being professionally inappropriate But the memo was political to the core. Sectionalization was the qadis’ refuge from the various injustices they had suffered in the Manichaean judiciary. The Grand Qadi hailed what was negatively viewed as sectionalization as an overdue liberation from the stifling control of the Civil Division. The memo stated that sharia courts had ‘suffered a lot of misery and deprivations in the past, and the closure of all avenues’ (1977, 105). It was only after the independence of the Sharia Division, the memo stated, that it ‘started to feel the meaning of freedom and liberty and has started to cope with the demands of society’ (1977, 105). For Salman these yearnings for autonomy are probably too political, or sectarian, to count as valid reasoning. The merging of the court system was an unavoidable step at the time of Sudan’s independence. Merging of courts represented the trend at the time in almost every other Arab country (Anderson 1960, 312).

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Anderson envisaged that the unification of the courts would lead to the codification of sharia viewed as a commendable modernization of Islamic law. According to Anderson, merging of courts, would go hand in hand with reducing sharia law, administered on the basis of doctrines extracted from the compendia of the past, to the form of a code much more feasible for judges, who have had their training in a modern system of law, to administer it (1960, 312). Support for the merger was strong among the academic legal community and it began to gain considerable political weight after the October Revolution of 1964. The late Muhammad Salih Omer of the Faculty of law, and a leader of the Muslim Brotherhood, was researching the merger of the court system in Egypt before leaving academia to become a minister of the new government following the 1964 Revolution (Thompson 1966, 1171). A belief in the advantages of merging courts was pervasive. So much so that when the Sharia Division became autonomous within the Judiciary under President al-Azhari in 1967, Akolawin described the separation of the two divisions of the Judiciary as ‘indeed a retrogressive step’ in the light of the tendency in Arab and Muslim states to abolish community jurisdiction and to centralize all litigation in one system of national courts (1973, 176–177). With its Manichaean set-up, the Judiciary was never prepared to merge its courts. It took the Judiciary, cajoled by presidents either to unify or separate, sixteen years to merge. In this drama, deep-set animosities, prejudices, and suspicions of the Civil and Sharia divisions were played out. The Judiciary protested the government’s pressure to unify, stalled the resolutions to execute the merger, and had finally to accept it as a fait accompli. In 1973, the Judiciary Authority Act amalgamated the two divisions. In deference to a reluctant Judiciary, the government backed down from its decision. In the second, and last, time around under President Nimerie in 1982, the Judiciary was left with no choice but to unify, albeit, ‘kicking and screaming’. Stalling the merger continued though. The worst feud, however, took place around the issue of the promotion of each category of judges under the amalgamated judiciary. To the distaste of both civil judges and qadis to the amalgamation of the Judiciary, each suspected the other of wanting it to bolster its own bureaucratic interests. Lutfi, the Chief Justice in 1991, who noted the revulsion of qadis to amalgamation during the colonial period, said that they had used the opportunity of merger in the postcolony to their advantage, namely, redressing their longstanding grievance of not being

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promoted fast enough like the civil judges.2 But the qadis were also reluctant to endorse the merger deeper reasons. Having suffered enough under colonial and Sudanese judges, the qadis did not want to deal with civil judges at all. Qadi Sheikh al-Juzuli, the Grand Qadi between 1976 and 1982, said that it was the civil judges who wanted the amalgamation in anticipation of the larger budget and authority this could have put at their disposal.3 Fluehr-Lobban suggests that amalgamation, as inevitable as it were, was tactically accepted by both qadis and judges to fight their old war by other means. Each saw it as an ‘opportunity to influence and direct the other, making the civil law more Islamic or the sharia more secular’ (Fluehr-Lobban 1987, 74, 279). We have seen how the autonomy of the Sharia Division, guaranteed by the Sharia Courts Act, 1967, was a product of an Islamic alliance in power that had found in Islamizing the state, by decolonizing the law, a source for a new political legitimacy. Nimerie’s coup in 1969 was intended to check this wave of Islamization. The reversal of the gains of the Sharia Division of 1967 was high on the leftist agenda behind the coup. Determined to return the Sharia Division to its pre-1967 subordination to the Civil Division, these leftist elements decreed the Judiciary Authority Act, 1969, which reinstated the Chief Justice and the Grand Qadi with their pre-1967 powers. The Chief Justice was made once more the administrative head of both divisions. The authors of this Act were not in the least concerned that it ran counter to the cherished Charter of the October Revolution of 1964. The Charter was critical of an all-powerful Chief Justice. To prevent a concentration, and subsequently abuse, of powers in the hands of the Chief Justice, as was the case of the Chief Justice under Abboud’s junta (1958–1964), the Charter decreased these powers by delegating some of them to a newly created court of appeal (Salman 1977, 112). Furthermore, the new military government under Nimerie abolished the Sharia Courts Act, 1967, and the acts derived from it, thus stripping sharia courts of their autonomy, and the array of executive powers conferred on them by the Act and its bylaws (1977, 122). Other procedures were adopted by Nimerie’s government to put qadis in their place. One of

2 3

Interview in Khartoum, June 1991. Personal communication, Khartoum, May 1991.

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the measures was stopping enrollment for the Sharia Division of the Law School at the University of Khartoum; a bold action to dry up court dualism at one of its major sources. Furthermore, Omdurman Islamic University, whose sharia law school had been reinforcing this dualism since 1966, was relegated to a college of Islamic and Arabic studies. Finally, the Legal Profession (Regulation) Act, 1966, was amended to delete the two Islamic Subjects from the list of the mandatory Bar exam (1977, 116). Later on Nimerie’s junta dropped its leftist orientations and assumed an Arab socialist stance after the aborted communist coup against Nimerie in July 1971. The campaign against qadis, led by Awadalla, the former Chief Justice (1964–1967) continued all the same though. With his Arab nationalism commitment, Awadalla was determined to bring the administration of justice under a judiciary unified by a code derived from the Egyptian law. A law reform commission was appointed in 1971 with the specific task of providing ‘the country with Arab socialist codes to replace the current colonial laws . . . and dispel the last remnants of the colonial presence in the Sudan’ (1977, 117). The Civil Code, 1971, was the brainchild of this commission. The Judiciary Authority Act, 1972, which was issued on the heels of the Civil Code, 1971, authorized merging the court system. The Act unified the civil and sharia courts into one system of state courts responsible for the administration of justice in all fields of life, including personal matters of Muslims and non-Muslims (Akolawin 1973, 185). Salman criticizes this merger for not being preceded by an empirical research or investigation as to the realities of the court system. Ending the dualism of the Judiciary, according to Salman, should have warranted a more careful study because dualism had been so institutionalized in the system over long historical tensions and conflicts. Nor was the enactment of the merger, he continues, followed by regulations or laws clarifying how this merger would be implemented. No thought, was given, he argues, to bridging the gap of legal knowledge of the two divisions. The fact that the Civil Code, 1971, was written in Arabic, he suggests, was piously believed to take care of the problem (1977, 120). Although brief, the civil law period of the Arab socialists has been derided by common law lawyers for the havoc it wrought in the administration of justice. The Civil Code, 1971, was criticized as written in haste by Arab nationalists in power. The merging of courts, viewed as a bad

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transplantation of the robust Egyptian experience in merging religious and civil courts in 1955, was denounced as too messy.4 The very short reign of confusion spelt by the Code (until repealed in 1973), according to Salman, ‘aggravated the tensions [between the two divisions of the Judiciary], deteriorated the relationship, and hindered much of the needed co-operation between the two divisions’ (1977, 125). The Arab socialists’ hegemony in Nimerie’s regime was short-lived. The years 1972 to 1973 witnessed the withering of enthusiasm for Arab nationalist projects, and the subsequent fall of the Arab civil law school of Justice Awadalla. The common-law tradition triumphantly took the lead in reversing the laws back to their pre-1967 era of common law, that is, to the time before the launching of the various ‘decolonization’ of the common law tradition. Common law scholars repealed the Civil Codes, 1971, and most of the pre-1971 enactments; Islamic and Marxist alike. Mustafa, who in 1973 became the Attorney-General with the specific mission of restoring common law in the country, wrote about the civil code period as instructive to all those ‘who think that a legal system can be unceremoniously discarded simply because it was at one time introduced by an imperialist authority’ (1973, 133). In an article he published just before his appointment, he expressed his surprise why one should have to choose between laws traced ultimately to colonial origins. He points to the paradox inherent in the Civil Code, 1971. Hailed as a great socialist code, Mustafa maintains, it was in fact a reproduction of a code that was promulgated in Egypt when she was a feudal monarchy (1973, 138). Furthermore, adopting the Egyptian Code, which was based on French law, had been, in anticipation of its adoption in Sudan, described as early as 1967 as a ‘second-hand reception’ (Lutfi 1967, 235). To reinstate the common law in a comprehensive act, common law lawyers, led by Mustafa, provisionally revived the colonial Civil Justice Ordinance, 1929, and the Sudan Mohammedan Law Courts Organization and Procedure Regulations, 1916, with important changes. This comprehensive law was eventually drafted and promulgated as the Civil Procedure Act, 1974 (Salman 1977, 142–143).

4 For a good criticism of the Act from a leftist standpoint see (Salman 1977, 117–128). Mustafa (1973) is a critique written from a common law vantage point. Mustafa, as noted earlier, had the opportunity to practice his criticisms of the Act when he was appointed the Attorney-General in the same year his article was published.

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Although silent on the issue of merging of courts, the Civil Procedure Act, 1974, apparently took the unity of the court system for granted. It stated that the ‘administration of justice shall be vested in one body which shall be called the “Judiciary”’ (1977, 152). There was no mention of the words ‘merger’ or ‘unification’ though. There was also no explanatory memorandum clarifying what the provision about the unity of the Judiciary actually meant, and how it should be implemented in the light of the history of this nagging issue of duality. A number of other enactments that followed, Salman maintains, took the unification for granted (1977, 152–154). The sharia courts came to be identified as ‘personal law circuits’ in the unified Judiciary (1977, 153). In practice, however, the system continued to be dual. Salman, who was doing his research in Khartoum in 1975, wrote: Although two years have elapsed since the promulgation of the Judiciary Act, 1973, the court system has been operating in a manner almost similar to the first era. The struggle has ended where it started: a dual separate court system with a point of contact at the apex of the hierarchy. . . . Most of the courts are still unrelated, and it is not clear which group of civil and Sharia courts are working together as circuits constituting one court. Not only are they uncorrelated, but they are unevenly distributed . . . nothing has been done or envisaged to bridge the gap of legal knowledge between the two groups [judges and qadis]. They have continued, for all practical purposes, to be differentiated as Sharia and civil judges. (1977, 154–156)

The qadis resented the merger of the Judiciary that caused them to lose the autonomy they had fought hard to obtain in 1967. Importantly, they presented their opposition to the amalgamation as fearing that it would be a step to secularize family law. From interviews with qadis, Salman found them identifying the autonomy of their courts, described as isolated Islamic islands in a sea of secularism, with continuing the legacy of Islam. Fear that secularists would draft a national family law, caused qadis to see the merger as an abolition of sharia rather than a unification of the court system (1977, 124). Their fears of this eventuality were not unfounded. The colonialists had taught them not to trust those who pry too much in the business of their court. Qadis used Nimerie’s meeting with the judges in 1974 to express their dissatisfaction with the merger as it stood then. Qadi al-Juzuli, the former Grand Qadi and Deputy Chief Justice (1972–1976), made an outspoken attack on the unification. He described it as the biggest hurdle standing in the way of efficient performance in the Judiciary

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(Sudan Judiciary 1974, 53). The multiplicity of laws, he argued, made unification impossible in practical terms. Until legal studies were unified to train judges and qadis to decide on all sorts of cases, he maintained, unification would remain a well-intentioned but empty project. Other qadis came to his support (1974, 54, 56). The Chief Justice himself agreed that the merger was carried out too hurriedly to be meaningful (1974, 54, 55). In the meeting, a qadi lashed out against civil judges, especially those on the Court of Appeal, for using the unification to deny qadis their legitimate rights (1974, 54). Seizing the platform to dramatize their discontent with the merger, the qadis presented their specific professional demands and sharia concerns. Understandably, the demands, presented at a meeting where everyone knew what was at stake, were not fully articulated in the published proceedings for an outsider to fully understand their many references. In clear violation of the unification decision, qadis called at that meeting for the administrative autonomy of the two divisions. Qadis also asked for the appointment of one of their rank and a civil judge to help the president of the High Court, invariably a civil judge, in the administration of the Judiciary, each to be in charge of his respective Division (1974, 54). Qadis called for fairness in allocations to the two divisions when an independent budget was granted to the Judiciary. They also asked that provincial courts and those beneath them should be entrusted to a separate administration (1974, 54). One may surmise that this proposed administration of justice, in the light of the qadis’ dissatisfaction with judges running their affairs, would be dual in nature. A qadi, for example, complained that appeal and provincial civil courts were opened in three provinces whereas no sharia court of the same stature was opened in the same period (1974, 56). Qadis also asked that they should be provided with scholarships for postgraduate studies similar to those provided to other professionals (1974, 54). In the meeting qadis raised legislative issues challenging the 1973 return to the old common law. Nimerie hailed this return in the meeting itself as a legal revolution derived from the customs and morals of the people (as we have seen him do with the Civil Code, 1971, and the Islamic laws of 1983). Qadis described the conflict between the colonial common law and sharia at length. Restrictions on the use of force to execute bayt al-ṭāʿa (‘house of obedience’ to which a recalcitrant wife is assigned by an order from a sharia court), was criticized in the meeting for creating a situation of recalcitrance in which women were suspended between being wives and divorcees (1974, 56). Disciplining a wife, qadis

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argued in the meeting, is a sharia obligation whereas it was considered a crime in the criminal code existing then. Unlike sharia, marrying an underage person, the qadis continued, was considered rape under this code (1974, 64). The unification did not work and the Judiciary Authority Act, 1976, divided the Judiciary into its original dual organization. A year later the unification of the Judiciary was again raised in the context of the 1977 national reconciliation initiative in which Nimerie, whose Islamism had been taking the better of him, made peace with his opponents in the northern Islamic traditional parties. This reconciliation was perhaps rightly assumed by secularists to be another name for Islamization. The establishment of the Committee of Revision of Laws to Conform to the Principles of Sharia, which al-Turabi headed at a later date in September 1979, seemed to bear out the truth of this assumption (Hamid 1984, 9).5 Steps were taken to prepare the two divisions for an eventual merger. A deadline was set for 1978 to train judges and qadis sufficiently to gain competence on all circuits and to unify the roll of qadis and judges (Khalid 1986, 295). Encouraged by the process of Islamization that was gathering momentum at the time, the qadis decided to make the case forcefully for their court and law in the future amalgamated judiciary. On December 13, 1979, the senior qadis of the Sharia High Court and Sharia Appeal Court submitted a memo to the HJC to be considered in its discussions of the unification of the courts scheduled for the council’s meeting of December 15, 1979. The memo raised the question of whether this amalgamation would be substantive by leading to the unification of the law of the land, or merely bureaucratic putting qadis and judges under one administration. The unification of the law on the basis of sharia, the petition went on to say, had been the tradition in Sudan before the coming of the British. The memo argued that the dichotomy of laws, sharia and positive law, and the subordination of qadis to judges, were part of the colonial legacy. Muslims, the memo stated, resented the

5 For the interplay between reconciliation and Islamization, see Hamid 1984, Malwal 1978, and the interview with al-Sadig in Sudanow, October 1978. The Committee of Revision of Laws to Conform to the Principles of Sharia was formed in April 1977 headed by al-Rashid, the Chief Justice. Before holding its first meeting in August 30, a Presidential Order was issued appointing al-Turabi, Muhammad Ibrahim Khalil, a legal scholar and a leading member of the Umma Party, and Jaʿfar Sheikh Idris of the Muslim Brotherhood, on the committee. The committee’s work would be referred to the People’s Assembly by the Council of Ministers to become law (Sudanow, October 1977).

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degradation of Islamic law under colonialism, which the British had treated as an inferior law. Astounded, injured, and intimidated, Muslims, the memo said, had to put up with this humiliation of their system of law. Independence, according to the qadis, brought no respect to sharia. Clinging to the colonial legacy of despising Islamic law, Sudanese civil judges continued the subjugation of qadis and the marginalization of sharia. In viewing the Sharia Division as a throwback hindering modernity, the qadis said, civil judges wished it would disappear. The qadis made it clear that the merging of the courts should go hand in hand with making Islam the law of the land. They attributed the failure of the 1972–1976 amalgamation for being a ‘merger for merger sake’ conceived and executed in secrecy and in isolation of the judges, qadis, and the public at large. No consideration, the qadis argued, was made for the unification of the law on the basis of the tradition and morals of the people. It took the Judiciary three years to realize the futility of the merger, said the qadis. The qadis were skeptical of the move to amalgamate the Judiciary. In their memo, they took the Judiciary to task for not embarking on serious preparation for the merger as stipulated by President Nimerie in 1976. On the breakup of the Judiciary in that year, the President, the petition maintained, gave the Judiciary five years to effect amalgamation. The Judiciary, however, in the view of the qadis, remained inactive until the President raised the merger issue again in early 1978. The flurry of activity to set up training courses in that year, the qadis stated, was in response to the concerns voiced by the President rather than a thoughtthrough process. Worse still, the sound recommendations laid out to train the personnel of the Judiciary, the memo claimed, were ignored. We will see shortly that these recommendations would be unearthed in February 1980 to begin the training of qadis and judge, who should have finished this training in 1978.6 The qadis also called for the promulgation of Islamic law because they believed that the northern Sudanese culture and state had matured for sharia law to take effect. In their memo, they outlined the political developments working for sharia, including the committee formed in 1977 by President Nimerie to adjust colonial laws in force to conform to sharia. Based on these moves to Islamize politics and the law, the qadis’ memo called for the application of sharia as the law of the land by

6

The High Judiciary Council, the Secretariat, 18 December 1979.

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the amalgamated judiciary. Merging the courts, the petition cautioned, should have followed the unification of the law on the basis of sharia, the training of the qadis and judges in the knowledge of its working, and the unification of legal studies to stem the duality of the courts at its source.7 Written just days before the meeting of the HJC in late 1979, the qadis’ memo was perhaps a preemptive strike to stop the council from unifying the judiciary administratively (a situation in which qadis stood to lose) rather than in terms of substantive law. The worst fears of the qadis were, however, realized. In the HJC’s meeting bureaucratic concerns again took precedence in unifying the Judiciary over the law to be applied by it. A committee was delegated to look into the unification of the judges’ roll, the identification of courts and their sites, the appraisal of the resources in the Judiciary (e.g. offices, cars, and bicycles) identifying shortages in these resources, and the scheduling of the stages by which the merger could ultimately be completed. Training for the unification, which is largely a resuscitation of the 1978 plan, was predicated on the existing duality of the civil and sharia laws. The committee recommended that sharia should be a compulsory subject in the Bar exam. The on-the-job training was geared to make qadis and judges competent to decide cases in the different circuits of the Judiciary. The argument the qadis made about unifying the law of the land under sharia was not addressed by the committee assigned by the HJC to recommend on merging the Judiciary. However, the qadis’ concerns were carefully addressed in a memo presented to the Chief Justice on December 20, 1979 by al-Turabi, the Attorney-General and the Chairman of the Committee of Revision of Laws to Conform to the Principles of Sharia. It should be remembered that this committee was formed in 1977 as part of an initiative undertaken by President Nimerie to reconcile with his Islamic opposition in northern Sudan. In presenting this petition only five days after the HJC’s meeting in which the case for merging the Judiciary on the basis of sharia did not carry weight, one can safely assume that al-Turabi’s committee had come too late to lobby for this lost cause. Al-Turabi’s memo did, however, have good ideas of long-term value for bringing about a unified judiciary. A number of these ideas have been recently realized such as the establishment of an institute of legal studies

7

The High Judiciary Council Archive, the Secretariat 4/25/3, 13 December 1979.

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to research legal reform and supervise general training and accreditation. The memo also emphasized comparative legal training to develop juridical competence in the context of the multiplicity of law traditions in Sudan. This emphasis should have inspired those in charge of training in the Judiciary beyond the routine concept of retraining qadis and judges to become literate in the laws of each other’s systems. Al-Turabi also raised the point we have seen raised by Akolawin (1968) calling the Judiciary to stop acting as a lawmaker and leave that to the legislature. Interestingly, al-Turabi’s note was rather critical, albeit indirectly, of the social demeanor of civil judges. In his memo, he asked them that the merger should keep, in personal terms, the strict and lofty moral standards qadis had observed in carrying out their duties.8 The steps taken in preparation to this new merging of the Judiciary, which were ultimately decreed by the Judiciary Authority Act, 1980, were both rushed and contested. In realizing that it had to amalgamate no matter what, the Judiciary complied. It had formed a committee in late 1979 to plan for the unification of the institution. In the face of qadis’ and judges’ reservations, the Chief Justice called their seniors to a meeting in March 1980. To answer those in the meeting who questioned the logic and timing of this merger, the Chief Justice said that the political decision of the merger had already been made, and the meeting was only called to discuss its implementation in the three-year period determined by the government (an-Naʾim 1980, 24). A qadi was skeptical of this new move to unify the courts. Nothing had happened, he argued, since 1978 when the Judiciary roll was supposed to be already unified after sufficient training of qadis and judges (Khalid 1986, 295). Reservations and skepticism aside, the committee entrusted with planning the amalgamation of the Judiciary had already been busy designing a training program for assistant qadis and judges as the soundest investment in unification. Second class magistrates were also included in the training but with less rigor. Furthermore, the committee recommended the unification of legal studies in various universities.9

8 The Attorney-General Office, the Attorney-General MT/24, from Hasan al-Turabi, the Attorney-General, to Khalfalla al-Rashid, the Chief Justice, 20 December 1979. 9 The High Judiciary Council Archive, the Secretariat 4/25/2, Minutes of the meeting of the committee on practical training of judges for the unified Judiciary, 20 March 1980.

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The committee to decide on the merger, including the unification of the judge’s roll (which would haunt the Judiciary for a long time to come) was given two weeks to report back. It took the committee ten days to hold its first, and perhaps last, meeting. Unification of the roll was recommended to be based on seniority in service. To determine seniority the committee would consider the date of the Presidential Order authorizing the appointment of individual judges and qadis. Where two or more judges were appointed on the same day, it was recommended that the date of the last promotion would be considered to rank them in seniority. A sub-committee of three judges was appointed to unify the roll using the above-mentioned criteria. This committee was given five days to report back. It postponed looking into other related issues to determine the resources of the Judiciary on the grounds that further information was needed before a discussion could take place of these issues.10 In its note on training, which came in a letter with an unidentified date, the committee passed the roll as determined by its sub-committee. The committee met with a few surprises, or rather bad news, about the civil judges which it had to take into account. It found that its original criterion of considering seniority and last promotion would invariably put provincial and first class qadis before their civil counterparts on the roll. Taken aback by this unhappy revelation, the subcommittee recommended that promotions of provincial and first class qadis and judges should be an internal responsibility of each division for a period of two years after the completion of training. Only after then, the committee recommended, could provincial civil judges and qadis could come together in the unified roll. First class magistrates of the two divisions, on the other hand, would be incorporated in the roll after finishing their training in two batches in May and August 1981. Second class magistrates, it was recommended, would be unified in the roll after finishing their training in November 1980. Assistant magistrates would be trained by May 1980 and unified thereafter. Unification would in effect begin with the assistant magistrates appointed in 1980 who would come in one roll. Their future promotion would be determined according to excellence in performance on the job. The unification of the roll was not well received by either the judges or the qadis. Judges used the occasion of an interview for a story by

10

The High Judiciary Council Archive, the Secretariat 4/25/3, 13 December 1979.

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Sudanow (September 1980) about the crisis in the administration of justice to blame it on the merging of the Judiciary. Integration, according to a judge, would raise the operating cost of the institution because it necessitated the removal of judges from the bench for retraining. Statistically, this meant the removal of 50 judges from active duty in each three-month period until the completion of training in the three-year period specified. Judges also complained that the three-month period was not enough for judges and qadis to gain competence in each other’s system of law. But senior judges in charge of the administration of the Judiciary did not agree with these objections and statistics. Unarguably judges were not discussing the matter in good faith. In this dialogue of the deaf, civil judges as well as qadis were apparently interested more in lobbying for their sides of the issue. This was selfdefeating for an institution whose habits and pace in delivering justice had been under popular scrutiny. I am tempted here to lament again the Judiciary’s unfortunate failure to nurture the habit of explaining its problem, and learning to operate within the political whims and constraint of unrelenting dictatorships. Having lost this professional skill to survive disabling dictatorships, the judges were left hamstrung between succumbing to, or resisting, these dictatorships, or deserting the profession. For the lack of professional communication within the Judiciary, judges were left to vote with their feet. Many judges had made it clear to Sudanow that ‘following the amalgamation decision, they plan to join the flocks who have left the fold’ (Sudanow, September 1980). The Judiciary could have counteracted the call for the unification of the law by saying, as advised by Akolawin, that it had no business legislating for the country. The Chief Justice had said it best when he argued with those who called for the unification of the law before the unification of courts. He retorted, ‘The Judiciary applies the laws passed by the legislative body, and that it is up to that branch of the government to unify the civil and sharia within the appropriate laws and to provide judges who can apply both’ (Sudanow, September 1980). The idle, or lukewarm, legislature of the time burdened the Judiciary with lawmaking and the identity politics that went with it. Just like the days of colonialism when the judiciary was conceived as a government department entrusted with ‘colonizing’ the law, dictators and powerhungry presidents of the postcolony held the judiciary responsible for ‘decolonizing’ the law. The judiciary, as noted earlier, failed to redefine itself in the postcolony as the third branch of government whose function is to apply law, not to make it. As already noted the Islamic law

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drafts of al-Turabi’s committee (1978–1983), which were reasonably moderate envisioning a gradual Islamization, were stalled by a lukewarm legislature. The failure of al-Turabi’s committee to reform the law to conform to sharia made people of secular persuasion wrongly assume that ‘Islamization of the laws would not materialize’ (Tier 1992, 206–207). President Nimerie, who had been working on a more radical form of Islamization, usurped the role of the legislature in 1983 and promulgated a series of laws ushering in his Islamic experiment of prompt justice. The President, however, blamed the Judiciary for not reforming and decolonizing itself. The amalgamated roll became the object of fierce feuds between qadis and judges. Judges who switched to the Civil Division after a longer or shorter career as qadis especially contested it. The Secretary of the HJC reported their objection to the council after the promulgation of the Judiciary Authority Act, 1982, that merged the Judiciary. Qadis who switched over to the Civil Division were caught in the historical cracks of the system. They were astounded to find out that they had lost all their previous years of service as qadis in the very same Judiciary. These judges discovered, to their consternation, that their dates of first appointment were not those of their commission as members of the Judiciary like qadis of the Sharia Division, but rather those of their later appointment to the Civil Division after passing the Bar exam. Subsequently their service in the Sharia Division was nullified. Qadis appointed with them on the same day were therefore put before them on the unified roll. Cases illustrative of these discrepancies abound. A qadi who joined the Civil Division in 1980 found that a number of qadis, who had been many years his juniors in the Sharia Division, came ahead of him in the amalgamated role. He was upset to learn that he had been punished for his evolution from a ‘primitive’ state into a civilized one through passing the Bar exam.11 Another judge from a qadi background expressed his disappointment in passing the Bar exam. Instead of promoting him as promised, he complained, it demoted him rather.12 Upset by being ranked lower than some qadis, these judges asked that the amalgamated roll should be suspended for sometime until the two divisions could 11

The High Judiciary Council Archive, the Secretariat, Yusuf Jad Karim to the Chief Justice, 21 September 1982. 12 The High Judiciary Council Archive, the Secretariat, from ʿAbdu Mahjub to the HJC, 15 January 1982.

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strike rapport and coherence. Subsequently, they requested that their date of first appointment in the Judiciary as qadis should be the one considered for the purposes of ranking rather than that of joining the Civil Division. In the interim, they demanded that each division would decide independently on promotions of its respective personnel.13 Qadis had other complaints against the amalgamated roll. They claimed that it disadvantaged them by its criterion for determining seniority. In cases where two or more judges or qadis had been appointed on the same date, the qadis reasoned, the dates of their last promotions in their respective divisions were supposed to be considered as grounds for ranking in the unified roll. But the two divisions had two different speeds of promotions. Unlike qadis, civil judges had been on the fast lane of promotions in their own division. Their quick advancement was facilitated by the expansion of the civil courts and the long periods of extended leave by judges sent on government scholarships to obtain Masters or Ph.D.s. Also, vacancies were aplenty in the Civil Division due to the demand for judges’ expertise outside the Judiciary. Judges also enjoyed being seconded for consultation work with private and public corporations and even abroad. Some judges would emigrate, or switch to legal practice encouraged by the unrestricted license that allowed civil judges, and not qadis, to appear before civil and sharia courts alike.14 Qadis were not as lucky in terms of promotions. A qadi whose appointment date was 1971 complained that civil judges appointed in 1974 had become many times her seniors. This discrepancy in the promotion of qadis and civil magistrates relative to seniority showed clearly in a report on the progress of the amalgamation of the Judiciary in December 1982. Qadis who were appointed between 1975 and 1977 became first class magistrates together with their civil counterparts who had been appointed between 1978 and 1979.15 It did not take the civil judges long to conclude that the criterion of seniority on the unified roll would not work for them either. Civil judges, who were content with their fairly expeditious promotions, were not in any rush for this merger to happen. Turned off by the new system in which they had to compete with qadis, they decided to stall and subvert

13 The High Judiciary Council Archive, the Secretariat, Hasan al-Fadal al-Hasan, Secretary General of the HJC to the HJC, 5 December 1982. 14 Najwa Kamal Farid, a woman qadi, interview in Khartoum, June 1991. 15 The High Judiciary Council Archive, the Secretariat, A Note on the Promotions of Province, First Class and Second Class Magistrates, 1980.

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the production of the unified roll. The decision of the amalgamation committee to postpone unifying the roll of provincial and first class magistrates, a bottleneck in the qadis’ career, was apparently intended to protect the civil judges from being inundated by the promotion of qadis. The committee realized that this category of civil judges would come to the roll with appointment dates later than qadis who would be many times their juniors since promotions were slower in the Sharia Division than the Civil Division. Ignoring these disabling criteria for joining the unified roll, the Civil Division continued promoting its judges on the understanding that the vacancies filled were originally civil positions. Alternatively, civil judges would subvert the criteria of the unified roll by totally disregarding seniority, based on date of original appointment, and determine promotions with reference to the date of the last promotion which, of course, convenienced the judges as we explained earlier. Later, the criteria were suspended and a compromise was struck by which one qadi was promoted against the promotion of two civil judges. The arrangement did not sit well with the qadis. The resulting ‘grave’ discrepancies from this deal, in the words of a qadi, led them to present their resignations collectively in November 1986 more than a year after the outset of President Nimerie. In a smart move, the qadis protested the arrangement because it, at the risk of violating the Constitution, which amalgamated the Judiciary, classified judges into ‘qadis’ and ‘civil judges’ for the purpose of the quota promotions. The qadis were anxious to explain though that their resignation was not a call for the break up of the Judiciary. They affirmed their support for a unified and fair institution for administering justice (al-Siyasa 12 November 1986). The unification of the Judiciary in the 1980s recycled old animosities and stereotypes in the long feud between qadis and judges. The contempt in which civil judges had always held qadis showed in a letter written by one of them to the Judiciary protesting his seniority rank in the amalgamated roll. In an argument typical of the way judges saw qadis, the judge suggested that the amalgamated roll was mixing apples and oranges. He questioned the validity of making the date of appointment the basis to rank qadis and judges on the same list. This date, authorized by the President, the judge maintained, was determined for use by the separate divisions, civil and sharia, existing at the time. It, therefore, could not be stretched out of this specific institutional context to apply in a new bureaucratic arrangement without jeopardizing the rights of one group or the other. To avoid comparing apples and oranges, he

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suggested, the authorities needed to look for other criteria to suit the emerging situation of the unified roll. In spelling out his basis for these new criteria, the judge revealed the prejudices of his colleagues. For the sake of the argument he admitted that qadis had suffered a long ghubn (injustice) in their terms of service. But these injustices, he reasoned, could be attributed in large part to the little business their court heard compared to civil courts. Alternatively, he proposed that qadis and judges should be put in separate rolls to avoid putting a qadi ahead of a judge ‘who decided on civil and criminal disputes and whose training comprised comparative legal systems and the study of different legal traditions including sharia.’16 The roll feud was so engrossing that the legal profession paid very little attention to the issue of the unity of the substantive law. President Nimerie, as noted earlier, took care of the identity of this law in his 1983 Islamic laws. Khalid, a Nimerie’s protégé and later critic, took judges and qadis to task for turning the issue of the unified judiciary into an overly administrative preoccupation with scales and promotions. He traces this ‘lahth’ (panting) for scales to a ‘culture of promotion’ in the Judiciary that took root in the post-1964 Revolution in which two appeal courts, sharia and civil, were created. The taste for, and feud over, promotion was thus set in motion (1986, 295–296). The unification of the law took a back seat in the drive to amalgamate the Judiciary. But it was the focus of Abdullahi an-Naʿim whose view is an application in the realm of law of the controversial reform ideas of Taha we discussed in Chapter 5. In 1977, an-Naʿim intervened in the discourse about the unification of the Judiciary. Far from being the merger of administrative divisions, the amalgamation of the Judiciary, an-Naʿim argues, is basically about the unity and constituency of the substantive law applied. In a choice between a secular and sharia source for this law, an-Naʿim was all for sharia, albeit modernized as we have seen his mentor, Taha, argued in Chapter 5. Secularism in Muslim countries, he continues to say, has a bad name since it was transplanted by force in Turkey and the Iran of the Shah. Also, opting for sharia, he argues, is in line with the dominant and longstanding call for the implementation of sharia in Sudan, which began with the nationalist movement. He distinguishes, however, between a traditional and

16 The High Judiciary Council, the Secretariat 1/3/1, ʿAwad ʿAbdal Rahim Ahmad to Chief Justice, 15 November 1982.

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modernized sharia. He criticizes the former for having no conception of modern notions of civil liberties and constitutional government, and for being more backward than the colonial secular laws which existed then. Instead, he argues for a sharia interpreted usefully and progressively to accommodate both Muslims and non-Muslims and men and women on the basis of citizenship (an-Naʿim 1977, 14). Instantaneous Violence The Judiciary today is an amalgamated institution at all levels beneath the High Court where qadis and judges can still be seen executing their respective jurisdiction.17 Having invested no professional thinking or skills in structuring the merger of the institution, judges and qadis can be safely said to have drifted to this united judiciary fatigued by their own feud and the violent intervention of the executive to reform the Judiciary to suit various state ideologies and conveniences. Civil judges and qadis were not simple victims of state persecution. They brought this on themselves by their deliberate, short-sighted alliances with various governments to advance their sectional interests. During colonialism and the first decade of independence, the qadis’ energies were consumed by a constant struggle for an equal status with the Civil Division of the Judiciary. Although most of them were described even by colonial officers as a reasonable and intelligent body of men if treated in the right way, as noted earlier, qadis were rarely treated in a deserving manner during these two periods. We have seen how they had their back to the wall too long to engage in reforming the Judiciary in a productive way. They were never made to feel welcome in it to begin investing time and intelligence in its evolution. Indeed, they were constantly alienated and repelled by civil judges for them to demand ‘a greater insulation from civil division courts’ (Thompson 1966, 1171). They achieved the autonomy of their division thanks to al-Azhari in 1967. The civil judges did not forgive their insubordination and used their influence during the early years of Nimerie’s coup in 1969 to reverse all the measures by which the qadis had secured their autonomy. Nimerie wrought havoc in the Judiciary pushing it one way or another. His Islamization of the institution toward the end of his reign in 1985 17 Dr ʿAwad al-Hasan al-Nur, Director of the Institute of Training and Legal Reform, personal communication, New York, March 2000.

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emptied it of any institutional capacity to think straight. His Islamic measures, as we have seen them described by Zein, were designed less for their Islamic content than for their anti-Judiciary intent (Zein 1989, 185). His plan to subordinate the Judiciary could not tolerate even a semblance of an institutional autonomy of the Judiciary. Regardless of the abrupt radical switch to sharia as the law of the land, the first Chief Justice under this experiment in 1983, Yusuf, a Muslim Brother and a common law lawyer, wanted the Judiciary to administer sharia, become efficient as desired by the Nimerie, and keep to the concepts of fair trial inherited from the common law tradition (1989, 193–194; Sudanow, October 1983). Handicapped by their unfamiliarity with the Islamic legal system, judges were too slow for the taste and expectations of Nimerie’s prompt justice. In April 1984, Nimerie declared a state of emergency creating a system of ‘Emergency Courts,’ latter dubbed ‘instantaneous justice courts,’ which turned into a well-endowed, well-publicized, parallel judiciary of morally active qadis and judges. Eclipsed, the older judiciary was directed to clear up its backlog minus the important cases that were to be turned over to the Instantaneous Courts. The old Judiciary became a thing of the past forced, in Zein’s words, ‘to look back backward to find work to do’ (1989, 213, 209). The experiment of this parallel judiciary came to an end in 1985 after the fallout between Nimerie and the Muslim Brotherhood just before Nimerie’s demise in April 1985. The state’s plans to unify the Judiciary were conceived and implemented with unmasked violence. We have seen Justice Awadalla, as the Minster of Justice during the first year of Nimerie’s regime, retiring thirteen civil judges and qadis to clear the ground for his civil law project. Nimerie also fired judges to set the tone for his Islamic laws in 1983. The current regime that came to power in 1989 sacked fiftyone judges and then seventy more in 1989 and 1990, respectively, to suppress the civil judges and continue the Islamization of the state that came under fire after the ousting of Nimerie (Lawyers Committee for Human Rights, March 1991, 7–11). Marred with feuds and welded together by violence, the Judiciary could have hardly contributed meaningfully to its organization or laws. Judging seniority by performance was occasionally suggested as a rational criterion for promotion in the Judiciary (Thompson 1965, 506; Sudan Judiciary 1974, 8). But this was more easily said than done. The war of the divisions was too ‘tribal’ to allow for the consideration

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of individual performance as the top merit. The intellectual dilemma of legal activists is fully expressed by Taha Ibrahim, an attorney with a European law background. Although he viewed Nimerie’s 1983 Islamic laws as too primitive for his taste, he argued that sharia was still a valid national source of laws for Sudan. In a typical argument of elites rationalizing colonial moral injury, he confessed that colonial modernity coerced the Sudan into accepting Western legal systems although they had been at variance with sharia. He explained his specific use of the word ‘coerced’ by saying that the Sudanese who had received the foreign laws were oblivious to the history and methods behind these laws. Yet he justified adopting these colonial laws by identifying them as more akin to our modern needs. He believes, however, that sharia remains untested as a law for modernity. It may prove to be perfectly suited for the mission if creatively applied. This modern application of sharia is difficult to envision and legislate for in the atmosphere of religious hawas (bigotry) like the one generated by Nimerie’s law (Ibrahim 1986, 227–228). In drifting absent-mindedly to unification, the Judiciary underlined the staying power of the colonial Manichaean gridlock. Not even the Islamization of the law erased Manichaeanism as a structural memory in the Judiciary. The institute proposed by al-Turabi in 1979 to intellectualize the merging of the Judiciary beyond personnel worries, was established in 1996 under the Islamic regime of al-Bashir. It was entrusted, among other things, to train law school graduates for two years before they join the legal profession. Nonetheless, legal institutions, such as the Judiciary and the Attorney-General Office, which did not amend their hiring laws to commit themselves to this new state policy, continued appointing fresh law graduates bypassing the institute. Conceived of as a substitute for the Bar exam, training at the institute was originally mandated to bridge the gaps between the different law traditions taught in various law schools which still separate sharia from civil law despite the Islamic rhetoric. Ignoring the institute, the legal profession continues to ask law graduates to sit for the Bar exam. Manichaeanism easily survived all the hasty ideologically driven projects to decolonize the Judiciary (al-Rayaam 15 and 17 January 2000).

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conclusion Conclusion

This chapter examined the failure of the national project to amalgamate the Judiciary to illustrate the miscarriage of the decolonization process. The civil judges are the ones to be blamed for subverting the creation of the judiciary of the new nation. In holding fast to the privileges bequeathed to their jurisdiction and court by colonialism, they failed to negotiate this new judiciary with qadis and the nation at large. Prakash calls such an examination an ‘after colonialism’ (Prakash 1995) study which is not concerned simply with ‘whether or not former colonies have become free from domination’ but rather with shaking loose the Manichaean organizing ideas from the history of colonial disciplining and history (1995, 5). Imagining the nation out of its fragments calls for a robust theory of liberation. The challenge to put decolonization back on track is a challenge that requires, in Igbal Ahmed’s words, ‘a logic of daring’ (in Said 1993a, 325). In desperation, Davidson compares this daring to madness after Thomas Sankara, the short-lived president of Burkina Faso in the late 1980s. Sankara called for a certain amount of madness to carry out fundamental changes in Africa. ‘This madness,’ Sankara elaborated, ‘had to come from the courage to turn your back on old formulas, it had to come from the courage to invent the future.’ In this being the case ‘we must dare to invent the future’ (1993, 241). The independence blues I quoted at the beginning of this conclusion express a deep existential fatigue with the ‘flag independence.’ The Sudan looks to the Sudanese like the elephant George Orwell shot while working as a colonial constable in Burma. After shooting the elephant, which had terrorized his Indian subjects, Orwell, prompted by a colonial compulsion to look good in the eyes of the watchful natives, was distressed by the tortured gasps of the elephant which was dying slowly and with great agony. He writes: ‘It seemed dreadful to see the great beast lying there, powerless to move and yet powerless to die, and not even to be able to finish him’ (1950, 11). The cure of the gasping elephant, or the dying nation, lies still, in Marlowe’s words to his aunt, in soothing the imagination rather than fixing the body. To imagine is to theorize. This book sought to rethink decolonization looking at the postcolonial predicament from a critical reflection about Western culture and practice. This theorizing, argues Bart MooreGilbert, is not a ‘second order activity which is less valuable than, or

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even parasitic upon, more direct forms of activism.’ Decolonization, he continues, is not a muscular, unthinking practice. It is incumbent on the colonized to theorize in order to avoid ‘a division of labor in which the Third World acts, while the First World thinks’ deepening the ‘all too prevalent sense that the Third World is not much of a place for theory’ (Moore-Gilbert 1997, 164).

BIBLIOGRAPHY Internet MASNEW <MSANEWS.MYNET.NET> [email protected] Correspondence Letters from ʿAbd al-Badiʿ Saqr of the Egyptian Muslim Brotherhood to Shaykh Bin Baz of Saudi Arabia on al-Turabi’s heresies, and al-Turabi’s rejoinder, 1980. These letters circulated in their mimeographed form among the initiated. Newspapers and Magazines Al-Ayyam (Sudan) Al-Azmina al-Arabiya (Egypt) Al-Fajr (Britain) The Financial Times (Britain) Al-Ikhwan al-Muslimun (Sudan) Al-Inqadh al-Watani (Sudan) Al-Khalij (United Arab Emirates) Al-Khartoum (Sudan) al-Majalla (Britain) Al-Midan (Sudan) Al-Mithaq al-Islami (Sudan) Al-Muslimun (Britain) The Nation (USA) Newsweek (USA) The New Yorker (USA) The New York Times (USA) Qadaya Fikriya (Egypt) Al-Quwat al-Muslaha (Sudan) Al-Rai al-Akhar (USA) Al-Rayaam (Sudan) Al-Sahafa (Sudan) Al-Sahifa (USA) Al-Siyasa (Sudan) Sudan Gazette (Sudan) Al-Sudan al-Hadith (Sudan) Sudanow (Sudan) Al-Wasat (Britain) The Washington Post (USA) Al-Watan (Kuwait) Al-Watan (Sudan)

396

bibliography

Archival Material HJC The High Judiciary Council Archive (Sudan) NRO National Record Office, Sudan Office of the Attorney-General Archives, Sudan SAD Sudan Archives at Durham University, England Sudan Judiciary Archives, Sudan Videos Ali Mazrui. “A Garden of Eden in Decay” in his series “The Africans: A Triple Heritage,” 1986. Jaʿfar Sheikh Idris. Hasan al-Turabi: Secularism in Islamic Garb. A lecture given at the University of Khartoum, October, 1995. A Sudan TV video of the trial of Mahmoud M. Taha and his followers, 8 January 1985. Ms. Attiyat al-Abnudi, the Egyptian director, made this video into a short film and was shown at human rights centers in Cairo in 1993–1994. Republican Brothers’ Publications (RP) January 1969. Baynanā wa Bayna Maḥ kamat al-Ridda. December 1974. Al-Mizān bayn Mahmoud Muhammad Taha wa al-Amana al-ʿAma li al-Shiuʾūn al-Dīniyya. Port Sudan, 1975. Waqāiʿ Maḥ kamat Port Sudan, 7 Vols., Khartoum. May 1975. Al-Quḍā al-Sharʿiūn Akbar ‘Aqaba amām ʿAwdat al-Dīn. July 1975a. Qaḍāya Kosti. July 1975b. Al-Dīn wa Rijāl al-Dīn ʿabr al-Sinīn. August 1975. Al-Nāʾiyb al-ʿĀm wa Qaḍyat Port Sudan. September 1975a. Bayt al-Ṭ āʿa. September 1975b. Al-Nāʾiyb al-ʿĀm wa Qaḍyat Port Sudan. November 1975. Al-Dhikra al-Sabiʿa li Maḥ kamat al-Ridda. January 1976a. ʿUlamā bi Zaʿmihim, Vol. 1. January 1976b. Ṣafū Quḍāt Dawāʾir al-Aḥwāl al-Shakhṣiyya. February 1976a. Laysū ʿUlamā al-Sudan. February 1976b.ʿUlamā Bi Zaʿmihim, Vol. 2. April, 1976. Qaḍiyat Port Sudan: al-Bidāya wa al-Nihāya. May 1976a. Naḥ nu Natahim Sharīʿat al-Aḥwāl al-Shakhṣiyya. May 1976b. Muʾtamar Fatḥ al-ʾĀṣima. May 1976c. Al-Ikhtilāṭ fī al-Jāmiʿa al-Islāmiyya. July 1976. Al-Ikhwān al-Jumhūrīyūn fī Jarīdat al-Akhbār al-Miṣriyya. December 1977. Aiyma bilā Imān. 1978–Daud. Waqāiʿ Maḥ kamat al-Amin Daud, 6 Vols., Khartoum. April 1978. Hadhā Huwa al-Shaykh al-Amin Daud. August 1979. Muqtraḥ āt al-Azhar li al-Dustūr al-Islāmī Jahālat lā Tumathil al-Dīn. December 1980. ʿAwdat al-Masīḥ . February 1981. Ibʿidū Raʾīs al-Qaḍā. September 1981. Hadhā Huwa al-Shaykh Muhammad Mutawalī al-Shaʾrāwī. December 1981. Al-Masīḥ . September 1982. Al-Muftī wa al-Ḍ aḥ iyya. 1985. Mādha Qāl al-ʿĀlam ʿan Mahmoud Muhammad Taha.

bibliography

397

Books and Articles ʿAbdalla, Ahmed Ali. “Bayn al-Shaykh Hasan al-Turabi wa al-Duktor Ja’far Sheikh Idris.” Al-Inqadh al-Watani 20 July 1996. Abdin, Hasan. Early Sudanese Nationalism, 1919–1925. Khartoum, 1985. ʿAbd al-Qadir, Yahai M. Shakhṣiyyat min al-Sudan: Asrār warāʾ al-Rijāl. Khartoum, 1952. ——. ʿAla Hamish al-Aḥ dāth Khartoum, n.d. Abd Al-Rahim, Muddathir. Imperialism and Nationalism in the Sudan. Oxford: Oxford University Press, 1969. —— et al. Sudan since Independence: Studies of the Political Development since 1956. Aldershot (England): Gower, 1986. —— and al-Tayib Zein al-Abdin. Al-Islām fī al-Sudan. Khartoum, 1987. ʾAbd al-Rahman, Bashary. Tārīkh Berber. Khartoum, n.d. Abdul-Hai, Muhammad and Bashir, Bakry. Al-Tijani Yusuf Bashir: Al-Athār al-Nathriyya al-Kāmila, al Sifr al-Awal. Khartoum, 1978. Abrahamian, Ervand. Tortured Confessions: Prisons and Public Recantations in Modern Iran. Berkeley: University of California Press, 1999. Abu al-ʿAziʾm, Mahmud, al-Sahafa 24 January 1984 Abu-Lughod, Lila. “The Romance of Resistance: Tracing Transformation of Power Through Bedouin Women.” American Ethnologist 17, no. 1 (1990): 41–55. Abu Rabiʿ, Ibrahim M. Intellectual Origins of Islamic Resurgence in the Modern Arab World. Albany: State University of New York Press, 1996. Abu Rannat, Muhamad A. “The Relationship between Islamic and Customary Law in the Sudan.” Journal of African Law 4, no. 1 (1960): 9–16. Abu Salim, Muhammad Ibrahim. “Ismail al-Azhari.” Al-Ayyam 2 January 1986. ——. Udabā wa ʿUlamā wa Muʾarikhūn fī Tārīkh al-Sudan. Beirut, 1991. Abu Sin, Ali. Al-Majdhūb wa al-Dhikrayāt, 2 vols. Cairo, 1997. Adam, ‘Amar Muhammad. “Iʿdām Mahmoud Muhammad Taha: Shahid ‘ala al-Ahdāth.” Al-Siyasa 2 May 1987. Ahmad, Abdalla M. Interviewed by al-Watan (Sudan) 28 May 1988. Ahmad, Hasan Makki M. Ḥ arakat al-Ikhwān al-Muslimīn fī al-Sudan, 1944–1969. Khartoum, 1982. ——. Al-Ḥ araka al-Islāmiyya fī al-Sudan, 1969–1985: Tārīkhaha wa Khiṭabaha al-Sīyāsī. Khartoum, 1990. ——. “Fī Ẓ ilāl al-Tajruba al-Dhātiyya.” Al-Sudan 13 November 1995. Ahmed, Akbar S. Postmodernism and Islam: Predicament and Promise. New York: Routledge, 1992. Ajami, Fouad. “The Summoning.” Foreign Affairs 72, no. 4 (September/October1993): 2–9. ——. Review of Jason Goodwin. Lords of the Horizons: A History of the Ottoman Empire. New York: Henry Holt and Company, 1999. The New York Times Book Review (2 May 1999): 7. Akolawin, Natalie O. “The Courts and the Reception of English Law in the Sudan.” The Sudan Law Journal and Reports (1968): 230–261. ——. “Personal Law in Sudan—Trends and Developments.” Journal of African Law 17, no. 2 (1973): 149–195. ʿAli, Muhammad Muhammad. Min Jīl ilā Jīl, 1945–1946. Khartoum, n.d. Al-Amin, Mohammed N. The Origins of Communism in Sudan. Ph.D. Dissertation. Oxford University, 1982. ʿAmir, al-Tijani. Al-Sudan Taḥt al-Ḥ ukm al-Thunāī, 1898–1918. Cairo, 1979. Anderson, Benedict R. Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso, 1983. Anderson J.N.D. “The Modernization of Islamic Law in Sudan.” The Sudan Law Journal and Reports (1960): 292–312.

398

bibliography

——. “The Legal Tradition.” In Islam in Africa. Edited by James Kritzeck and William H. Lewis. New York: Van Nostrand, 1969: 35–53. An-Naʾim, Abdullahi Ahmad. “Can Religion be to all as Well?” Sudanow (November 1970): 14. ——. “Sudan’s Republican Brothers: An Alternative Islamic Ideology.” Middle East Report (July–August 1978): 40–42. ——. “Before It’s too Late.” Sudanow (November 1980): 24–25. ——. “The Islamic Law of Apostasy and its Modern Applicability: A Case from Sudan.” Religion 16 (1986): 197–224. ——. Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law. Syracuse: Syracuse University Press, 1990. Appadurai, Arjun. “Is Homo Hierarchicus?” American Ethnologist 13, no. 4 (1986): 745–761. Appiah, Kwame A. In My Father’s House: Africa in the Philosophy of Culture. New York: Oxford University Press, 1992. Asad, Talal. The Idea of an Anthropology of Islam. Washington: Georgetown University, 1986. ——. Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam. Baltimore: Johns Hopkins University Press, 1993. Ashcroft, Bill, Gareth Griffiths and Helen Tiffin. The Empire Writes Back. New York: Routledge, 1989. Atiyah, Edward. An Arab Tells his Story: A Study in Loyalties. London: John Murray, 1964. Atiyah, P.S. “Legal Education in the Sudan.” The Society of Public Teachers of Law 4 (1957–1958): 137–142. Awadalla, Babiker. “Sudan Government v. Awad Adam Omer and others (AC-CP-2021975).” The Sudan Law Journal and Report (1960): 75–79. al-Badawi, Ahmad M. Al-Tijani Yusuf Bashir. Cairo, 1980. Bakhrayba, ʿAli. Diwān Bakhrayba. Atbara, 1959. Balamoan, G. Blue Nile Boy. London: Karia Press, 1989. Al-Baqir, Kamil. Qiṣat al-Jāmiʿa al-Islāmiyya 1965–1969. Cairo, 1988. ——. Tajruba fī al-Taʿlīm al-Dīnī. Khartoum, 1991. Bashary, Mahjub. Umar. Ruwād al-Fikr al-Sūdānī. Khartoum, 1981. ——. Iʿdām Shaʿb. Beirut, 1992. Bashir, al-Tijani Yusuf. Ishrāqa. Beirut, 1972. Bayart, Jean-Francois. The State in Africa: The Politics of the Belly. London: Longman, 1993. Bechtold, Peter K. Politics in the Sudan: Parliamentary and Military Rule in an Emerging African Nation. New York: Praeger Publishers, 1976. Bedri, Babiker. Tārīkh Ḥ ayātī, Vols. 2 and 3. Khartoum, 1961. ——. The Memoirs of Babikr (Babiker) Bedri. London: Oxford University Press, 1969. Behdad, Ali. Belated Travellers: Orientalism in the Age of Colonial Dissolution. Durham: Duke University Press, 1994. Bell, Gawain. “The Growth of Sudan Nationalism.” In Condominium Remembered. Edited by Deborah Lavin, Vol. 1. Durham: University of Durham, 1991: 147–156. Berman, Bruce and John Lonsdale. Unhappy Valley: Conflict in Kenya and Africa. London: J. Currey, 1992. Bernal, Victoria. “Gender, Culture, and Capitalism: Women and the Remaking of Islamic ‘Tradition’ in a Sudanese Village.” Comparative Study in Society and History 36, no. 1 (1994): 36–67. Beshir, Mohamed Omer. The Southern Sudan: Background to Conflict. New York: Praeger, 1968.

bibliography

399

——. Educational Developments in the Sudan, 1898–1956. Oxford: Clarendon Press, 1969. Bhabha, Homi. The Location of Culture. London: Routledge, 1994. Bilgrami, Akeel. “What is a Muslim? Fundamental Commitment and Culture.” Critical Inquiry 18, no. 4 (Summer 1992): 821–842. Bola, Abdalla. “Shajarat Nasab al-Ghūl fī Mushkil al-Huwiyya al-Sūdāniyya.” Al-Sahifa 5 (1998): 12–15. Bond, George Clement and Angela Gilliam. Social Construction of the Past: Representation as Power. London: Routledge, 1994. Al-Boni, ʿAbd al-Latif. Tajrubat Nimerie al-Islāmiyya fī al-Sudan, May 1969–April 1985. Khartoum, 1995. Booker, M. Keith. Colonial Power, Colonial Text. Ann Arbor: University of Michigan Press, 1997. Bourdieu, Pierre. Outline of a Theory of Practice. Cambridge: Cambridge University Press, 1977. Breckenridge, Carol and Peter van der Veer. Orientalism and the Postcolonial Predicament: Perspectives on South Asia. Philadelphia: University of Pennsylvania Press, 1993. Brennan, Teresa. History after Lacan. London: Routledge, 1993. Brenner, Louis. Muslim Identity and Social Change in Sub-Saharan Africa. Bloomington: Indiana University Press, 1993. Brown, Nathan. “Shari’a and State in the Modern Muslim Middle East.” International Journal of Middle East Studies 29 (1997): 359–376. Bulliet, Richard W. 1995 Review of Michael Field’s Inside the Arab World. Cambridge: Harvard University Press, 1955. The New York Times Book Review (5 March 1995): 16. Burgat, Francois. 1997. “Ballot Boxes, Militaries, and Islamic Movement.” In The Islamic Debate. Edited by Martin Kramer. Tel Aviv: Moshe Dayan Center for Middle East and African Studies, 1997: 35–48. Bushra, Muhammad al-Mahdi. “Dirāsāt Folkloriyya li Buṭaqāt al-Aʿrās.” Al-Fajr 4 February 1998. Caudill, David S. Lacan and the Subject of Law: Toward a Psychoanalytical Critical Legal Theory. New Jersey: Humanities Press 1997. Chanock, Martin. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press, 1985. Chatterjee, Partha. The Nation and its Fragments: Colonial and Postcolonial Histories. Princeton: Princeton University Press, 1993. Choueiri, Youssef. Islamic Fundamentalism. Boston: Twayne Publishers, 1990. Churchill, Winston. The River War. New York: Charles Scribner, 1938. Clancy-Smith, Julia. “La Femme Arabe: Women and Sexuality in France’s North African Empire.” In Women, the Family, and Divorce Laws in Islamic History. Edited by Amira ElAzhary Sonbol. Syracuse: Syracuse University Press, 1996: 52–63. Clifford, James and George Marcus. Writing Culture: The Poetics and Politics of Ethnography. Berkeley: University of California Press, 1986. Cohen, William and E.S. Etieno Odhiambo. Burying S.M.: The Politics of Knowledge and the Sociology of Power in Africa. Portsmouth: Heinemann, 1992. Cohn, Bernard. An Anthropologist among the Historians and Other Essays. Delhi: Oxford University Press, 1987. Collelo, Thomas. Chad: A Country Study. Washington DC: The Library of Congress, 1990. Collins, Robert. “A Testimony.” In Recent Developments in the Sudan, Sub-Committee of Africa, House of Representatives, 10 March 1993. Connor, Steven. Postmodernist Culture: An Introduction to the Theories of the Contemporary. New York: Basil Blackwell, 1989.

400

bibliography

Cooper, Frederick and Ann Laure Stoler. Tensions of Empire: Colonial Culture in a Bourgeois World. Berkeley: University of California Press, 1997. Cooper, Marc. “Americas’s House of Cards.” The Nation (19 February 1996): 11–19. Daly, Martin W. Empire on the Nile: Anglo-Egyptian Sudan, 1898–1934. Cambridge: Cambridge University Press, 1986. ——. “Law and Social Change during the Condominium.” A conference presentation kindly provided by the author, n.d. Danasuri, Fahim H. Ahmad Amin wa-Atharuhu fi al-Lugha wa al-Naqd al-Adabī. Cairo, 1989. Daniel, Norman. Islam and the West: The Making of an Image. Edinburgh: Edinburgh University Press, 1960. Darwin, John. The End of the British Empire: The Historical Debate. London: Basil Blackwell, 1991. Daud, al-Amin. Naqḍ Muftaryāt Mahmoud Muhammad Taha. Khartoum, 1974. ——. Iṭiṣalāt Murība. Khartoum, 1976. Davidson, Basil. The Black Man’s Burden: Africa and the Curse of the Nation-State. New York: Times Books, 1992. Davies, R. The Camel’s Back. London: Murray, 1957. Deng, Francis. War of Visions: Conflict of Identities in Sudan. Washington: The Brookings Institute, 1995. —— and M.W. Daly. Bonds of Silk: The Human Factor in the British Administration of the Sudan. East Lansing: Michigan State University Press, 1989. De Waal, Alex. “Turabi’s Muslim Brothers: Theocracy in Sudan.” Covert Action 13 (1994): 48–61. —— and Rogaia Omer. Food and Power in Sudan: A Critique of Humanism. London: African Rights, 1997. Dirks, Nicholas B. Colonialism and Culture. Ann Arbor: Michigan University Press, 1992. Djaziri, Moncef. 1995. Review of Olivier Carre’s L’Islam Laique ou le Retour le La Grande Tradition. Paris: Armand Colin, 1993. International Journal of Middle East Studies 27, 3 (1995): 345–347. Dreyfus, Hubert and Paul Rabinow. Michel Foucault: Beyond Structuralism and Hermeneutics. Chicago: University of Chicago Press, 1983. Eickelman, Dale. F. The Middle East: An Anthropological Approach. Eaglewood Cliffs, N.J.: Prentice Hall, 1981. —— and James Piscatori. Muslim Politics. Princeton: Princeton University Press, 1996. El-Affendi, Abdelwahab. “ ‘Discovering the South:’ Sudanese Dilemmas for Islam in Africa.” African Affairs 89, no. 356 (1990): 371–389. ——. Turabi’s Revolution: Islam and Power in the Sudan. London: Grey Seal Books, 1991. ElBashir, Ahmed E. “Sudan in the Grip of al-Turabi.” In Islamic Fundamentalism in Africa and Implications for U.S. Policy. A hearing before the Sub-Committee on Africa, House of Representative, 20 May 1992. Eliot, T.S. The Complete Poems and Plays, 1909–1950. New York: Harcourt, 1952. ElKhalifa, Abdel Rahman I. Development and Future of English Law and Islamic Law in the Sudan. Ph.D. Dissertation, McGill University, 1988. El-Nur, M.I. “The Role of the Native Courts in the Administration of Justice in the Sudan.” Sudan Notes and Records 41 (1960): 78–87. Esposito, John. “Secular Bias and Islamic Revivalism.” The Chronicle of Higher Education 39, no. 38 (26 May 1993): A44. Fadlalla, Ali Suleiman. “The Search for a Constitution.” In Sudan since Independence. Edited by Muddathir Abd al-Rahim et al. Aldershot, England: Gower, 1986: 41–52. Fanon, Frantz. Black Skin, White Masks: The Experiences of a Black Man in a White World. New York: Grove Press, 1967.

bibliography

401

——. The Wretched of the Earth. New York: Grove Press, 1968. Farran, C. d’Olivier. “The Relationship between Civil Law, Custom and Sharia.” The Sudan Law Journal and Reports (1959): 103–111. Fawzi, Muhammad. Nimerie wa al-’Awda ila Ḥ ukm al-Sudan. Cairo, 1991. Fluehr-Lobban, Carolyn. Islamic Law and Society in the Sudan. London: Frank Cass, 1987. —— and Hatim Hillawi. “Sudan (Manshurat El Mahakim El-Shari’a fi al-Sudan)” 1902–1979, Journal of African Law 27, no. 2 (1983): 79–107. Foucault, Michel. Politics, Philosophy, Culture: Interviews and other Writings, 1977–1984. New York: Routledge, 1988. ——. “Governmentality.” In The Foucault Effect: Studies in Governmentality. Edited by Graham Burchell, Colin Gordon and Peter Miller. Chicago: University of Chicago Press, 1991: 87–104. ——. Discipline and Punish: The Birth of the Prison. Vantage Books: New York, 1995. ——. Religion and Culture. New York: Routledge, 1999. Fraser, Lawrence. “State Fragmentation: The Case of Sudan.” Civil Society (May 1996): 10–12. Gaffney, Patrick D. The Prophet’s Pulpit: Islamic Preaching in Contemporary Egypt. Berkeley: University of California Press, 1994. Gasim, Awan al-Sharif. Min Ṣuwar al-Tamāzuj al-Qawmī fī al-Sudan. Khartoum, 1990. Gellner, Ernest. Postmodernism, Reason and Religion. London: Routledge, 1992. Giddens, Anthony. Beyond Left and Right: The Future of Radical Politics. Stanford: Stanford University Press, 1994. Gillan, J.A. Some Aspects of Nuba Administration. Khartoum, 1931. Gilmartin, David. “Customary Law and Shari’at in British Punjab.” In Shari’at and Ambiguity in South Asia Islam. Edited by Katherine P. Ewing. Berkeley: University of California Press (1988): 43–62. Glazer, Nathan. We are all Multiculturalists. Cambridge: Harvard University Press, 1997. Gledhill, John. Power and its Disguise: Anthropological Perspectives on Politics. London: Pluto Press, 1994. Gore, Paul Wani. “Effect of Disaster on Population Distribution.” In Disaster Prevention and Management in Sudan. Edited by Mohamed el Hadi Abu Sin. Khartoum, 1991: 65–81. Gourevitch, Philip. We Wish to Inform You that Tomorrow We Will be Killed with our Families. New York: Picador, 1999. Gow, J.J. “Law and the Sudan.” Sudan Notes and Records 33, no. 2 (1952): 299–310. Grundlingh, Albert and Hilary Sapire. “From Feverish Festival to Repetitive Ritual: The Changing Fortunes of Great Trek Mythology in an Industrializing South Africa, 1983–1988.” South Africa Historical Journal 21 (1989): 19–37. Guha, Ranajit. “On Some Aspects of the Historiography of Colonial India.” In Subaltern Studies 4 (1985): 3–7. Guttmann, Egon. “A Survey of the Sudan Legal System.” The Sudan Law Journal and Reports (1956): 7–46. ——. “The Reception of the Common Law in the Sudan.” International and Comparative Law Quarterly 6 (1957): 401–417. Haj Musa, Ibrahim M. Al-Tajruba al-Dumqrāṭiyya wa Taṭtwur Nuẓum al-Ḥ ukm fī alSudan. Cairo, 1970. Hale, Sondra. Gender Politics in Sudan: Islamism, Socialism, and the State. Boulder: Westview, 1997. Hall, Stuart. “When was ‘The Post-Colonial?’ Thinking at the Limit.” In The Post-Colonial Question: Common Skies, Divided Horizons. Edited by Iain Chambers and Lidia Curti. London: Routledge, 1996: 242–260. Hamad, al-Nur. “Fī al-Dhikra al-ʿĀshira li Mahmoud Muhammad Taha.” Al-Rai alAkhar (January 1995): 5.

402

bibliography

Hamdi, Mohamed Elhachmi. The Making of an Islamic Political Leader: Conversations with Hasan al-Turabi. Boulder: Westview, 1998. Hamid, Eltigani Abdelgadir. “Islam, Sectarianism and the Muslim Brotherhood in Modern Sudan, 1956–1985.” Ph.D. Dissertation, University of London, 1989. —— and Hasan Al-Turabi. “Al-Sudan wa Tajribat al-Intiqāl li al-Ḥ ukum al-Islāmī.” Political Readings 2, no. 3 (1992): 5–32. Hamid, Mohammed Beshir. The Politics of National Reconciliation in the Sudan: The Numayri Regime and the National Front Opposition, 1956–1985. Washington D.C.: Center for Contemporary Arab Studies, Georgetown University, 1984. Hamilton, J.A. de C. The Anglo-Egyptian Sudan from Within. London: Faber and Faber, 1935. Harrington, Peter and A. Sharaf. Omdurman 1898: The Eyewitnesses Speak. London: Greenhill, 1998. Al-Hasan, Muhammad Said M. Al-Dublūmāsiyya al-Sūdāniyya: Mawāqif wa Waqāiʿ Khartoum, 1996. Al-Hasan, Osman Muhammad. “Muhammad Salih Al-Shinqiti.” Al-Ayyam 2 March 1989. Hasan, Qurashi M. Qaṣāʾid min Shuʿrā al-Mahdiyya. Khartoum, 1974. Hasan, Yusuf Fadl. The Arabs and Sudan: From the Seventh to the Early Sixteenth Century. Edinburgh: Edinburgh University Press, 1967. ——. Ṭabaqāt Wad Ḍ ayfalla. Khartoum, 1971. Hawley, D.F. “Judges’ Robes in Sudan.” The Sudan Law Journal and Reports (1959): 211–214. ——. “Law in the Sudan under the Anglo-Egyptian Condominium.” In The Condominium Remembered. Edited by Deborah Lavin, Vol. 1. Durham: University of Durham, 1991: 39–53. Heesterman, J.C. “Was There an Indian Reaction? Expansion in Indian Perspective.” In Expansion and Reaction. Edited by H.L. Wesseling. Leiden: Leiden University Press, 1978: 31–58. Henderson, K.D.D. The Sudan Republic. New York: Praeger, 1965. Hillelson, S. Sudan Arabic Texts. Cambridge: Cambridge University Press, 1935. Hodgkin, Robin. “The Reform of the Sudan’s Primary Education: Some Historical Perspectives.” In The Condominium Remembered. Edited by Deborah Lavin, Vol. 2. Durham: University of Durham, 1991: 157–164. Holt, P.M. The Mahdist State in the Sudan. Oxford: Clarendon Press, 1958. —— and Martin Daly. The History of Sudan from the Coming of Islam to the Present Day. London: Weidenfeld and Nicolson, 1979. Howard, Stephen. “Mahmoud Mohammed Taha: A Remarkable Teacher in Sudan.” Northeast African Studies 10, no. 1 (1988): 83–93. Humari, Ahmad Osman. “Dhikrayāt ʿAṭbarāwiyya.” Al-Ayyam 20 December 1988. Huntington, Samuel. “The Clash of Civilizations.” Foreign Affairs (Summer 1993): 22–49. Husband, Mark. Warriors of the Prophet: The Struggle for Islam. Boulder: Westview, 1998. Ibn ʿAbdin, Muhammad A. Ḥ āshyat Rad al-Mukhtār, Vol. 5. Beirut, 1966. Ibrahim, Abdullahi A. “Shihādāt ʿan al-Tijani al-Mahi,” al-Khartoum (April 1970): 38–48. ——. “The Pride of Turbans.” Paper presented at the Islam in Africa: The Changing Role of the Ulema, Northwestern University, 28–31 March 1984. ——. “Breaking the Pen of Harold MacMichael: The Jaʾaliyyin Identity Revisited.” The International Journal of African Historical Studies 21, no. 2 (1988): 217–231. ——. “Popular Islam: The Religion of the Barbarous Throng.” Northeast African Studies 11, no. 2: (1989) 21–40.

bibliography

403

——. “Colonialism and Islam: Structuring a Muslim Sentiment of Defiance.” Paper presented to the annual meeting of the Sudan Studies Association held in Pouhgkeepsie, New York, 9–11 April 1992. ——. Assaulting with Words: Popular Discourses and the Bridle of Shari’ah. Evanston: Northwestern University Press, 1994. ——. Review of T. Abdou Maliqim Simone’s In Whose Image: Political Islam and Urban Practices in Sudan. Chicago: University of Chicago Press, 1994. American Ethnologist 55, no. 2 (1996): 165–166. ——. Interviewing al-Turabi: The Fundamentalist Writes Back. Paper presented at the Middle East: Ancient to Modern Times conference. University of California, Santa Barbara, 26–27 March 1999a. ——. Gordonites and Mahadites Feud: The “Downsizing” of Omdurman Islamic University, 1969. Paper presented at the annual meeting of the Sudan Studies Association. Boston, 6–8 June 1999b. Ibrahim, Fatima. Haṣādunā khilāl ʿIshrīn ʿĀman. Beirut. n.d. Ibrahim, Hasan Ahmad. “Mahdist Rising against the Condominium Government in the Sudan. 1900–1927.” International Journal of African Historical Studies 12, no. 3 (1979): 440–471. Ibrahim, Hayder. Azmat al-Islām al-Siyāsī. Cairo, 1991. ——. “Al-Turabi wa Mustafa Said.” Al-Ray al-Akhar (March 1996): 14. Ibrahim, Muhammad al-Makki. “Maraḍ al-Sudan al-Dīnī.” al-Watan al-Jadid no. 0 (January 1996): 9–13. Ibrahim, Salah. Ghaḍbat al-Hababāy. Beirut, 1965. Ibrahim, Taha. Hadhā aw al-Takhaluf. Khartoum, 1986. ——. “Asrār Tunshar li Awal Mara.” al-Ray al-Akhar (February 1996): 14–15. Ibrahim, Yahia. Tārīkh al-Taʿlīm al-Dīnī fi al-Sudan. Beirut, 1987. Imam, Zakariya Bashir. The Islamic Movement in the Sudan: Issues and Challenges. Leicester (England): The Islamic Foundation, 1987. ——. “Min al-Shahīd Hasan al-Bana ilā al-Shaykh al-Mujadid Hasan al-Turabi.” alInqadh al-Watani 3 August 1995. Institute of African and Asian Studies. Al-Riwāyāt al-Shafāhiyya li Thuwār Arba’a wa ʿIshrīn, Vol. 2. Khartoum, 1974. Jackson, H.C. Sudan Days and Ways. London: MacMillan, 1954. JanMohamed, Abdul R. “The Economy of Manichaean Allegory: The Function of Racial Difference in Colonial Literature.” Critical Inquiry 12, no. 1 (Autumn 1985): 59–87. Jayyusi, Salma K. Modern Arabic Poetry: An Anthology. New York: Columbia University Press, 1987. Al-Kabbashi, al-Mikashfi Taha. Taṭbīq al-Sharīʿa al-Islāmiyya bayn al-Ḥ aqīqa wa al-Ithāra. Cairo, 1986. ——. Al-Ridda wa Muḥ akamat Mahmoud Muhammad Taha fī al-Sudan. Khartoum, 1987. Karrar, Ali Salih. The Sufi Brotherhoods in Sudan. London: C. Hurst, 1992. Al-Karsani, Awad al-Sid. “Beyond Sufism: The Case of Millennial Islam in the Sudan.” In Muslim Identity and Social Change in Sub-Saharan Africa. Edited by Louis Brenner. Bloomington: Indiana University Press, 1993: 135–53. Keddie, Nikki. Scholars, Saints and Sufis: Muslim Religious Institutions in the Middle East since 1500. Berkeley: University of California Press, 1972. Kenrick, J.W. “Reminiscences around the Transfer of Power in the Sudan.” In The Condominium Remembered. Edited by Deborah Lavin, Vol. 1. Durham: University of Durham, 1991: 157–164. Kepel, Giles. The Revenge of God: The Resurgence of Islam, Christianity, and Judaism in the Modern World. University Park: The Pennsylvania State University Press, 1994.

404

bibliography

Kevane, Michael and Leslie Gray. “Local Politics in the Time of Turabi’s Revolution: Gender, Class and Ethnicity in Western Sudan.” Africa. 65, no. 2 (1995): 271–296. Khalid, Mansour. Ḥ iwār maʿ al-Ṣafwa. Khartoum, 1974. ——. Nimeiri and the Revolution of Dis-May. London: KPI, 1985. ——. Al-Fajr al-Kādhib. Cairo, 1986. ——. The Government They Desereve: The Role of the Elite in Sudan’s Political Evolution. New York: Routledge, 1990. ——. Al-Nukhba al-Sūdāniyya wa Idmān al-Fashal, Vol. 1. Cairo, 1993. Al-Khalifa, ʿAbd al-Latif. Waqafāt fī Tārīkhinā al-Muʿāṣir, 1931–1948. Khartoum, 1988. Al-Khalifa, Sir al-Khatim. “Maʿ al-Rajul al-ladhī Yaʾkhudhu Shighāf al-ʿIlm.” In al-ʿAmīd al-Dwosh. Edited by Intisar al-Dwosh. Khartoum, 1991. Kipling, Rudyard. Rudyard Kipling’s Verse, Definitive Edition. Garden City: Doubleday, 1945. Kirp, David L. Review of Rafael Campo’s The Poetry of Healing: A Doctor’s Education in Empathy, Identity, and Desire. New York: H.H. Norton, 1997. The Nation (24 February 1997): 30–33. Kisha, Silayman. Sawq al-Dhikrayāt. Khartoum, 1964. Kok, Peter Nyot. “Conflict over Laws in the Sudan: ‘From Pluralism to Monotheism.’ ” In Sudan: History, Identity, Ideology. Edited by Herve Bleuchot, Christian Delmet, and Derek Hopwood. Reading: Ithaca Press, 1991: 235–252. ——. “Hasan Abdalla al-Turabi.” Orient 33, no. 2 (1992): 185–192. ——. Governance and Conflict in the Sudan, 1985–1995. Hamburg: Deutsches OrientInstitut, 1996. Kramer, Robert. Holy City on the Nile: Omdurman, 1885–1898. Ph.D. Dissertation, Northwestern University, 1991. Kursany, Ibrahim and El-Wathig Kameir. “Corruption as the ‘Fifth Factor’ of Production in the Sudan.” Development and Peace 6 (1985): 148–164. Latif, Muhmmad. “Ṣaḥafī ʿĀsh Aḥdāth al-Asābīʿ al-Mashʾūma.” Al-Ayyam 20 January 1987. Lavin, Deborah. The Condominium Remembered, 2 Vols. Durham: University of Durham, 1991. Lawyers Committee for Human Rights, North Africa. Sudan: Attacks on the Judiciary, March 1991. Lears, T.J. Jackson. “The Concept of Cultural Hegemony: Problems and Possibilities.” American Historical Review 90, no. 3 (1985): 567–593. A Legal Correspondent. “Instant Justice and Flogging to Secure the Peace.” The Review of the African Political Economy 26 (1983): 78–80. Legum, Colin. Africa since Independence. Bloomington: Indiana University Press, 1999. Lewis, Bernard, What Went Wrong: Western Impact and Middle Eastern Response. Oxford: Oxford University Press, 2002. Lincoln, Bruce. Review of Talal Asad’s Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam. Baltimore: Johns Hopkins University Press, 1993. History of Religions 35, no. 1 (1993): 83–86. London, Bette. “Of Mimicry and English Men: E.M. Forster and the Performance of Masculinity.” In A Passage to India, edited by Tony Davies and Nigel Wood. Buckingham, PA: Open University Press, 1994: 90–120. Lutfi, Galal A. “The Future of the English Law in Sudan.” The Sudan Law Journal and Reports (1997): 219–249. MacMichael, Harold. The Anglo-Egyptian Sudan. London: Faber and Faber, 1934. Al-Maghrabi, Ahmad. “Ismail al-Azahari.” Al-Sahafa 21 April 1984. Al-Mahdi, al-Sadig. “Mustaqbal al-Islam fī al-Sudan.” In al-Islam fī al-Sudan. Edited by Muddathir Abd Al-Rahim and Al-Tayib Zein al-Abdin. Khartoum, 1987: 375–425.

bibliography

405

Mahgoub, Mohamad Ahmed. Al-Ḥ ukūmāt al-Maḥ aliyya fī al-Sudan. Cairo, 1945. ——. Democracy on Trail: Reflections on Arab and African Politics. London: Andre Deutsch, 1974. —— and Abdal Halim Muhammad. Mawt Dunyā. Khartoum, 1986. Mahmoud, Muhammad. “10 Years after the Execution of Mahmoud Taha and Sudan still under Shari’a.” Al-Rai al-Akhar (February 1995). ——. “The Discourse of the Ikhwan of the Sudan and Secularism.” In Questioning the Secular State: The World-Wide Resurgence of Religion in Politics. Edited by David Westerlund. New York: St. Martins Press, 1996: 167–182. ——. “Sufism and Islamism in Sudan.” In African Islam and Islam and Africa: Encounters Between Sufis and Islamists. Edited by Eva Evers Rosander and David Westerlund. Athens: Ohio University Press, 1997: 162–192. Al-Majdhub, Muhammad al-Mahdi. Nār al-Majādhīb. Khartoum, 1969. Malik, Hasan. “al-Ṣārim al-Maslūl.” Al-Watan (Sudan) 18 December 1988. Malley, Robert. The Call from Algeria: Third Worldism, Revolution, and the Turn to Islam. Berkeley: The California University Press, 1996. Malwal, Bona. “Reconciliation and the Mahdi.” Sudanow (December 1978): 9. Mamdani, Mahmood. Citizen and Subject: Contemporary Africa and the Legacy of Later Colonialism. Princeton: Princeton University Press, 1996. Manger, Leif. From the Mountains to the Plains: The Integration of the Lafofa Nuba into Sudanese Society. Uppsala: The Scandinavian Institute of African Studies, 1994. Mann, Kristin and Richard Roberts. Law in Colonial Africa. Portsmouth: Heinemann, 1991. Mansur, Husayn. Al-Shāṭī al-Ṣakhrī. Cairo, 1939. Marqusee, Mike. “Britain’s Orgy of Piety.” The Nation (21 April 1997): 19–22 Marx, Karl. Selected Writings. Oxford: Oxford University Press, 1977. Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder: Westview, 1991. McClintock, Anne. Imperial Leather: Race, Gender and Sexuality in the Colonial Contest. New York: Routledge, 1995. McPhee, John. “Fifty-Two People on a Continent.” The New Yorker (5 March 1966): 101–133. Mernissi, Fatima. Beyond the Veil: Male-Female Dynamics in Modern Muslim Society. Bloomington: Indiana University Press, 1987. ——. Islam and Democracy: Fear of the Modern World. Reading MA: Addison-Wesley, 1992. Merry, Sally Engle. “Law and Colonialism.” Law and Society Review 25, no. 4 (1991): 889–922. Mignola, Walter. Local Histories/Global Designs: Coloniality, Subaltern, Knowledge, and Border Thinking. Princeton: Princeton University Press, 2000. Miller, Judith. “Faces of Fundamentalism: Hassan al-Turabi and Muhammed Fadlallah.” Foreign Affairs 73, no. 6 (November/December 1994): 123–142. ——. “Global Islamic Awakening or Sudanese Nightmare: The Curious Case of Hassan Turabi.” In Spokesmen for the Despised: Fundamentalist Leaders of the Middle East. Edited by R. Scott. Appleby. Chicago: University of Chicago Press, 1997: 182–224. Ministry of Information and Culture. Akhir Kalimāt Faqīd al-Umma: Omer al-Haj Musa. Khartoum, February 1977. Moore, Sally Falk. Social Facts and Fabrications: “Customary” Law on Kilimanjaro, 1903–1980. New York: Cambridge University Press, 1986. Moore-Gilbert, Bart. Postcolonial Theory: Contexts, Practices, Politics. London: Verso, 1997. Moussalli, Ahmed S. “Hasan al-Turabi’s Islamist Discourse on Democracy and Shura.” Middle East Studies 30, no. 1 (1994): 52–63.

406

bibliography

Muddathir, Hasan. A Memorandum for the Enactment of a Sudan Constitution Devised from the Principles of Islam. Khartoum, 1956. Muhammad, Fathi al-Daw. Miḥ nat al-Nukhba al-Sudāniyya. Cairo, 1993. Mustafa, Zaki. Common Law in Sudan: An Account of the “Justice, Equity, and Good Conscience” Provision. Oxford: Clanderon Press, 1971. ——. “Opting out of the Common Law: Recent Developments in the Legal System of the Sudan.” Journal of African Law 17, no. 2 (1973): 133–148. Al-Muti’i, Muhammad Najib. Ḥ aqīqat Mahmoud Muhammad Taha aw al-Risāla al-Kādhiba. Cairo, 1986. Myatt, Frederick. The Golden Stool: An Account of the Ashanti War of 1900. London: William Kimber, 1966. Nader, Laura. “The Crown, the Colonialists, and the Course of Zapotec Village Law.” In History and Power in the Study of Law: New Direction in Legal Anthropology. Edited by June Starr and Jane F. Collier. Ithaca: Cornell University Press, 1989. Najila, Hasan. Dhikrayātī fī al-Bādiyya. Beirut, 1964. ——. Malāmiḥ min al-Mujtamaʿ al-Sūdānī. Khartoum, 2 Vols. 1994. Nandy, Ashis. The Intimate Enemy: Loss and Recovery of Self under Colonialism. Delhi: Oxford University Press, 1983. Nasr, Ahmed Abdel Rahim. “British Policy towards Islam in the Nuba Mountains, 1920–1940.” Sudan Notes and Records 52 (1971): 23–32. ——. “The Sudanese Elite, the British Administration, and the Islamic and Christian Missions in the Sudan, 1945–1956.” Ba Shiru 6 (1974): 72–81. ——. Al-Tabshīr al-Islāmī wa al-Masīḥ ī fī Jibāl al-Nūba. Khartoum: Ministry of Religious Affairs, 1979. National Population Council. Taqrīr Awḍāʿ al-Sukān fī al-Sudan. Khartoum, 1994. Niblock, Tim. Class and Power in Sudan: The Dynamics of Sudanese Politics, 1898–1985. Albany: State University of New York Press, 1987. Nugent, Roy. “The March of the Green Flag.” Spin 11, no. 2 (1995): 72–83 and 108–110. Nugud, Muhammad Ibrahim. Interviewed by al-Ayyam 28 May 1985. ——. Al-Sudan: Al-Intifāḍa, al-Dumuqrāṭiyya, wa al-Taghīr. Cairo, 1989. O’Callaghan, Marion. “Continuities in Imagination.” In The Decolonization of Imagination: Culture, Knowledge and Power. Edited by Jan Nederveen Pieterse and Bhikhu Parekh. London: Zed Books, 1995: 22–42. O’Fahey, R.S. “Islam and Ethnicity in the Sudan.” Journal of Religion in Africa 26, no. 3 (1996): 258–267. Ortner, Sherry. “Resistance and the Problem of Ethnological Refusal.” Comparative Study of Society and History 37, no. 1 (1995): 173–193. Orwell, George. Shooting an Elephant. San Diego: Harcout Brace Jovanovich Publishers, 1950. Osman, Abdelwahab el-Affendi. The Political and Ideological Development of the Muslim Brotherhood in the Sudan. Ph.D. Dissertation, University of Reading, 1989. Osman, Dina S. “The Legal Status of Muslim Women in the Sudan.” Journal of Eastern African Research and Development 15 (1985): 124–142. Osman, Muhammad H.M. 1999. Al-Fajr 17 January, 1999. Osman, Muhammad Khayr. “Thunāiyyat al-Taʿbīr al-Shafāhī.” Majallat al-Dirasat alSudaniya 2, no. 2 (1971): 39–62. Owen, Roger, Lord Cromer: Victorian Imperialist, Edwardian Proconsul. Oxford: Oxford University Press, 2004. Perkins, Kenneth J. Port Sudan: The Evolution of a Colonial City. Boulder: Westview Press, 1993. Perrot, David L. “A Note on the Case of Heirs of El Niema Ahmed Wagealla v. El Hag Ahmed Mohamed.” The Sudan Law Journal and Report (1961): 280–287.

bibliography

407

Pfaff, William. “A New Colonialism: Europe Must Go Back into Africa.” Foreign Affairs 74, no. 1 (1995): 2–6. Phillips, Anne. The Enigma of Colonialism. London: James Currey, 1989. Pieterse, Jan Nederveen and Bhikhu Parekh. The Decolonization of the Imagination: Culture, Knowledge and Power. London: Zed Books, 1995. Prakash, Gyan. After Colonialism: Imperial Histories and Postcolonial Displacement. Princeton: Princeton University Press, 1995. The Qur’an. Jeddah:Abul-Qasim Publishing House, 1997. Rahman, Fazlur. Islam and Modernity: Transformation of an Intellectual Tradition. Chicago: University of Chicago Press, 1982. Rajab, Abdalla. Mudhakirāt Aghbash. Al-Sharija (United Arab Emirate), 1988. Al-Rashid, Khalfalla. “Al-Islam wa Ḥ ayatuna al-Qaḍāiyya.” In Al-Islam fi al-Sudan. Edited by Muddathir Abd al-Rahim and al-Tayib Zein al-ʿAbdin. Khartoum, 1987: 137–145. Reid, J.A. and J.F.P. Maclaren. “Arab Court Procedure and Customary Law.” Sudan Notes and Records 19 (1936): 158–161. Ricoeur, Paul. Figuring the Sacred: Religion, Narrative, and Imagination. Minneapolis: Fortress Press, 1995. Riyad, Henri. Mūjaz Tārīkh al-Ṣulṭa al-Tashrīʿiyya fī al-Sudan. Beirut, 1967. Robinson, Ronald. “Non-European Foundations of European Imperialism: Sketch for a Theory of Collaboration.” In Studies in the Theory of Imperialism. Edited by Roger Owen and Bob Sutcliffe. London: Longman, 1972: 117–142. Rodinson, Maxime. Islam and Capitalism. Austin. University of Texas Press, 1978. Rosaldo, Renato. “Imperial Nostalgia.” Representations 26 (Spring 1989): 107–122. Rosen, Lawrence. The Anthropology of Justice: Law as Culture in Islamic Society. Cambridge: Cambridge University Press, 1989. Roy, Olivier. The Failure of Political Islam. Cambridge: Harvard University Press, 1994. Said, Bashir Muhammad. Al-Azhari wa ʿAṣruhu. Cairo, 1990. Said, Edward. Orientalism. New York: Pantheon Books, 1978. ——. The World, the Text, and the Critic. Cambridge: Harvard University Press, 1983. ——. Culture and Imperialism. Knopf: New York, 1993a. ——. “The Phony Islamic Threat.” The New York Times Magazine, 11 November 1993b: 62–65. Salih, Kamal Osman. “The British Colonial Policy and the Accentuation of Inter-ethnic Divisions.” In Ethnicity, Conflict and National Integration. Edited by Sayyid H. Hurreiz and ElFatih A. Abdel Salam. Khartoum, 1989: 231–268. Salman, Salman M. Judicial Administration and Organization in the Sudan. Ph.D. Dissertation, Yale University, 1977. Schatzberg, Michael G. The Dialectics of Oppression in Zaire. Bloomington: Indiana University Press, 1988. Scott, David. “Colonial Governmentality.” Social Text 43 (Fall 1995): 191–220. Scribner, Bob. Review of James C. Scott’s Domination and the Arts of Resistance: Hidden Transcripts. New Haven: Yale University Press, 1990. The American Journal of Sociology 97, no. 3 (1991): 886–862. Shaʾarani, Mahmud. “Man Qatal Mahmoud Muhammad Taha?” Al-Watan (Sudan) 19 October 1988. Shapiro, Bruce. “Victims and Vengeance.” The Nation (10 February 1997): 11–19. Sharkey, Heather. Colonialism and the Culture of Nationalism in the Northern Sudan, 1898–1956. Ph.D. Dissertation, 2 Vols., Princeton University, 1998. Al-Shingieti, Abubaker. Images of the Sudan: A Cultural Analysis of the New York Times and the London Times Coverage of Two Crises. Ph.D. Dissertation, University of Massachusetts, Amherst, 1992.

408

bibliography

Shulqami, Nasr al-Din. Kosti: Al-Qiṣa wa al-Tārīkh. Khartoum, 1991. Al-Sid, Nasir. Tārīkh al-Siyāsa wa al-Taʿlīm fī al-Sudan. Khartoum, 1990. Sidahmed, Abdel Salam. Politics and Islam in Contemporary Sudan. New York: St. Martin’s Press, 1996. Silayman Muhammad. Min Mudhakirāt Nāʿib Sūdānī. Cairo, 1968. ——. Al-Yasār al-Sūdānī fī ʿAshara ʿAwām, 1954–1963. Cairo, 1971. Simmel, Georg. Essays on Religion. New Haven: Yale University Press, 1997. Simone, T. Abdou Maliqalim. In Whose Image: Political Islam and Urban Practices in Sudan. Chicago: University of Chicago Press, 1994. Smith, Lind Tuhiwai. Decolonizing Methodologies: Research and Indigenous People. London: Zed Books, 1999. Smith, W.C. Islam in Modern History. Princeton: Princeton University Press, 1957. Spaulding, Jay and Stephanie Beswick. “Sex, Bondage, and the Market: The Emergence of Prostitution in Northern Sudan, 1750–1950.” Journal of the History of Sexuality 5, no. 4 (1995): 512–532. Spicard, James V. “For a Sociology of Religious Experience.” In A Future for Religion: New Paradigms for Social Analysis. Edited by William H. Swatos, Jr. New Berry Park CA: Sage, 1993: 109–128. Spivak, Gayatri C. “Subaltern Studies: Deconstructing Historiography.” In Subaltern Studies 4 (1985): 330–363. ——. The Post-Colonial Critic. New York: Routledge, 1990. Stanley-Baker, R.C. “The High Court of the New Sudan at Work.” In The Condominium Remembered. Edited by Deborah Lavin, Vol. 1. Durham: University of Durham, 1991: 70–77. Stoler, Ann Laure. Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things. Durham: Duke University Press, 1995. The Sudan Communist Party. Thawrat Shaʿb. Cairo, 1965. ——. Lamaḥ āt min Tārīkh al-Ḥ izb al-Shūʿī al-Sūdānī: Al-ʿĪd al-Arbaʿīn li al-Ḥ izb. Khartoum, 1988. Sudan Judiciary. Al-M’utamar al-ʿĀm li Quḍāt Jamhūriyat al-Sudan. Khartoum, 1974. Sudan Socialist Union. A Mandate for Progress and Renewal. The Program of Political Action of the Candidate of the Sudan Socialist Union for the Presidency of the Republic. Khartoum, 1983. Taha, Mahmoud Mohamed. The Second Message of Islam. Syracuse: Syracuse University Press, 1967/1987. Taylor, Peter. Modernities: A Geohistorical Interpretation. Minneapolis: University of Minnesota Press, 1999. Al-Tayyib, Abdalla. Min Ḥ aqībat al-Dhikrayāt. Khartoum, 1994. Thompson, Cliff. “The Formative Era of the Law of the Sudan: A Case Study from the Republic of the Sudan.” The Sudan Law Journal and Reports (1965): 474–514. ——. “The Sources of Law in the New Nations of Africa: A Case Study from the Republic of Sudan.” Wisconsin Law Review (1966): 1146–1187. Tier, Akolda M. “Islamization of the Sudan Laws and Constitution: Its Allure and its Impracticability.” In Verfassung und Recht in Ubersee: Law and Politics in Africa, Asia and Latin America. Edited by Herbert Kruger. Hamburg: Hamburger Gesellschaft feur Veolkerrect und Auswartige Politik (1992): 199–219. Trimingham, J.S. Islam in the Sudan. London: Frank Cass, 1965. Al-Turabi, Hasan. Al-Muslim Bayn al-Wujdān wa al-Ṣulṭān. Khartoum, n.d. ——. Al-Maraʾ Bayna Taʾālīm al-Islam wa Taqālīd al-Mujtamaʿ. n.p., 1973/1989. ——. Al-Imān: Athāru fī Ḥ ayāt al-Insān. Beirut, 1974/1984a. ——. Al-Ṣalāt ʿImād al-Dīn. Khartoum, 1974/1984b. ——. Tajdīd al-Fikr al-Islāmī. Khartoum, 1977. ——. Mushkilāt Taṭbīq al-Shariʿa al-Islāmiyya. Khartoum, 1978.

bibliography

409

——. Tajdīd Uṣūl al-Fiqh al-Islāmī. Khartoum, 1980. ——. Khiṭāb al-Umma al-Islāamiyya ilā Ahl al-Millal al-Ūkhrā. Khartoum, 1981. ——. Qaḍāya al-Ḥ uriyya wa al-Waḥ da [and other Writings]. Jeddah (Saudi Arabia), 1987a. ——. “Principles of Governance, and Responsibility in Islam.” The American Journal of Islamic Social Science 4, no. 1 (1987b): 1–11. ——. Al-Ḥ araka al-Islāmiyya fī al-Sudan 1969–1985. Khartoum, 1989a. ——. “Al-Buʿd al-ʿĀlamī li al-Ḥ araka al-Islāmiyya: al-Tajruba al-Sudāniyya.” In Al-Ḥ araka al-Islāmiyya: Rʾuiya Mustaqbaliyya. Edited by ʿAbdalla al-Nafisi. Cairo, 1989b: 75–98. ——. “Manhajiyyat al-Tashrīʿ al-Islāmī.” In Isalāmiyat al-Maʿrifa. Edited by al-Tayyib Zain al-Abdin. Washington, DC: International Institute of Islamic Thought, 1992a: 9–35. ——. “Ḥ iwār maʿ Hasan al-Turabi.” Qirat Siyasiya 2, no. 3 (1992b): 5–32. ——. “Islam, Democracy, the State and the West.” Middle East Policy 1, no. 3 (1992c): 49–61. ——. “The Case of Islamic Populism.” New Perspective Quarterly 10, no. 3 (1993): 42–51. ——. Qaḍāyā al-Tajdīd: Naḥwa Minhāj Uṣulī. Khartoum, 1995a. ——. Al-Mashrūʿ al-Islāmī al-Sūdānī. Khartoum, 1995b. ——. Interview with the author of this book, 1996. ——. 1999 “Al-Turabi Yatadhakar.” Al-Wasat, February (1999): 22. Turner, B. Weber and Islam: A Critical Study. London: Routledge and Kegan Paul, 1974. Twain, Mark. King Leopold’s Soliloquy. New York: International Publishers, 1961. Twining, W.L. 1957. “Some Aspects of Reception.” The Sudan Law Journal and Reports (1957): 229–252. USA Congress. Islamic Fundamentalism in Africa and Implications for U.S. Policy. Hearing before the Sub-Committee on Africa, House of Representatives, 20 May 1992. USA Senate. The Battle Looms: Islam and Politics in the Middle East. A Report to the Committee on Foreign Relations, United States Senate, February 1993. ——. Recent Developments in Sudan. Hearing before the Subcommittee on Africa, House of Representatives, 10 March 1993. Varadharajan, Asha. Exotic Parodies: Adorno, Said, and Spivak. St. Paul: Minnesota University Press, 1995. Vaughan, Megan. Curing their Ills: Colonial Power and African Illness. Stanford: Stanford University Press, 1991. Voll, J.O. Islam and Stateness in the Modern Sudan. McGill University Center for Developing Area Studies, 1983. Waraq , Al-Haj. “Ṣināʿat al-Waham: Al-Asbāb al-Ijtimāʿiyya li Ẓ āhirat al-Hawas al-Dīnī.” Qadaya Fikriya 8 (October 1989): 212–215. Warburg, Gabriel. The Sudan under Wingate. London: Frank and Cass, 1970. ——. “Religious Policy in Northern Sudan.” Asian and African Studies 7 (1971): 89–119. Watts, Michael. “The Shock of Modernity: Petroleum, Protest, and Fast Capitalism in an industrializing Society.” In Reworking Modernity: Capitalism and Symbolic Discontent. Edited by Allan Pred and Michael Watts. New Brunswick: Rutgers University Press (1992): 21–63. Weber, Max. Economy and Society: An Outline of Interpretive Sociology. New York: Bedminster Press, 1968 Vol. 2. White, Arthur Silva. The Expansion of Egypt under Anglo-Egyptian Condominium. London: Methuen, 1899. White, Gregory W. 1995. Review of Ziad Abu-Amr’s Islamic Fundamentalism in the West Bank and Gaza. Bloomington: Indiana University Press, 1994, and Francois

410

bibliography

Burgat’s and William Dowell’s, The Islamic Movement in North Africa. Austin: University of Texas Press, 1993. International Journal of Middle East Studies 27, no. 3 (1995): 348–350. Woodward, Peter. “Islam and Politics.” In Sudan since Independence. Edited by Muddathir Abd Al-Rahim et al. Aldershot (England): Gower, 1986: 1–6. Yapp, M.E. 1997. “Full Mosques, Empty Hearts.” Times Literary Supplement (May 30, 1997): 4–6. Yaʿqub, Muhammad S. Sudāniyyāt fī Ṣālūnāt al-Adab. Khartoum, 1991. Yasin, Muaʿawiya. “Al-Turabi wa al-Mahdi: Man Ḍ yaʿa ʿal-Sudan”. Al-Wasat 19–25 June 1995: 28–32. Yasin, Muhammad O. Al-Shāʿir Tawfīq Ṣālih Jibrīl: Dhikrayyat wa Aḥ ādīth. Beirut. n.d. Young, Robert. White Mythologies: Writing History and the West. London: Routledge, 1990. Zaki, Husayn Muhammad. Al-Qawl al-Faṣl fi al-Rad ala Mahazil Mahmoud Muhammad Taha. Cairo, 1986. Al-Zein, ʿAfaf. “Hakadhā Assas al-Turabi al-Dawla al-Khāmisa.” Al-Majalla (August/ September (1995): 22–25. Zein, Ibrahim M. Religion, Legality and the State: 1983 Sudanese Legal Code. Ph.D. Dissertation, Temple University, 1989.

INDEX Court Cases Index Administrax of Costa Zia v. German and Swiss Engineering and Contracting Company and Phoenix Assurance Company, 1956, 267n Asma Mahmoud M. Taha and Abd al-Latif Umar Hasaballah, 1986 v. the Sudan Government, 1987, 308n, 318 Heirs of Ahmed Khidir Nugud v. Heirs of Neima Khidir, 1959, 158 Joseph Grang and Others v. The Commission [The Supreme Council], 1965, 165n, 175

Al-Sadig al-Mahdi and Others v. Council of Ministers and the Supreme Council of State, 1968, 180n Sudan Government v. Awad Adam Omer and Others, 1957, 349n Sudan Government v. Fatima Ibrahim and Others, 1975, 202 Sudan Government v. Sergeant-Major Nasr Abd al-Rahman, 1974, 258–259

Laws Index The Administrative and Political Corruption Act, 1969, 258 The Advocates Act, 1980, 241 The Advocates Ordinance, 1935, 216 The Anti-Prostitution Act, 1968, 16, 48, 205–207, 219 The Attorney-General Office Act, 1981, 242 Bill of Exchange Ordinance, 1914, 266 Child Care Act, 1968, 214, 217 Child Care Act, 1970, 217–218 Civil Code, 1971, 267n, 375, 376, 376n, 378 Civil Justice Ordinance, 1900, 5, 183, 213 Civil Justice Ordinance, 1929, 268, 376 Civil Procedure Act, 1974, 215, 248, 376–377 Code of Criminal Procedure, 1974, 4, 241 High Judiciary Council Act, 1976, 251 Judiciary Authority Act, 1969, 217, 374 Judiciary Authority Act, 1972, 375 Judiciary Authority Act, 1973, 269–270, 373, 377 Judiciary Authority Act, 1976, 379 Judiciary Authority Act, 1982, 382 Judiciary Authority Act, 1983, 254, 263 Legal Profession (Regulation) Act, 1966, 375

Liquor License Ordinance, 1923, 184 Local Government Ordinance, 1951, 202 Native Liquor Ordinance, 1914, 184 Number of Judges and Salaries of the Judiciary Act, 1976, 260, 260n, 261n Order of Good and the Prohibition of Evil Act, 1983, 244, 244n Organization of the Laws Act, 1973, 214 Protection of Public Tranquility Act, 1982, 244 Punishment of Administrative and Political Corruption Act, 1969, 259 Removal of Occupants of Government Buildings, 1966, 245n Rent Restriction Ordinance, 1953, 235n Sharia Circular 41, 1939, 102 Sharia Circular 54, 1960, 111, 159 Sharia Courts Act, 1967, 211, 213–216, 214n, 372, 374 Sharia Courts Execution Act, 1968, 211–212 Sharia Courts Rules of Criminal Procedure, 1986, 212–213 Sharia Courts Rules of Execution Measures, 1968, 212 Sharia Courts Rules of Precautionary Measures, 1968, 212 Sudan Bill of Exchange Ordinance, 1914, 265

412

index

Sudan Civil Justice Ordinance, 1900, 5, 29, 183–184, 213 Sudan Code of Criminal Procedure, 1898, 4 Sudan Defense Act, 1958, 242n Sudan Mohammedan Law Courts Ordinance, 1902, 5, 98, 211, 213, 376

Sudan Mohammedan Law Courts Organization and Procedure Regulations, 1916, 376 Sudan Penal Code, 1898, 4, 133, 188–189, 206, 244, 258

Name Index 1924 Revolution, 70, 163, 187, 331n ʿAbbas, Khalid Hasan, 222n ʿAbbas, al-Tayyib, 193 Abboud, Ibrahim, 169n, 170, 172 ʿAbd al-Halim, Ahmad, 222n Abd al-Latif, Ali, 75, 80 ʿAbd al-Majid, Sadiq A., 275n ʿAbd al-Qadir, Salih, 75 ʿAbd al-Rahman, ʿAbdalla, 78 Abd al-Rahman, Ali, 109 ʿAbd al-Wahab, M. ʿAbd al-Wahab, 202–203 Abu Digin, Ahmad, 139–140 Abu al-Qasim, Muhammad, 141 Abu Qisaysa, Shaykh, 168 Abu Rannat, Muhammad A., 107n, 138, 151n, 157n, 158 Abu Saʿad, Ahmad, 43 Abu Sin, ʿAbd al-Illah, 109n Ahmad, ʿAwad al-Jeed, 273–274n Ahmad, Said M., 205 Ahmed, Igbal, 392 Aiysha (the Prophet’s wife), 174 Aleir, Abel, 266n Algeria, 45–46 America (American, USA), 6, 6n, 55, 89, 170, 225n, 229, 237, 239, 325n, 333, 345n, 365, 371 American aid, 170 American University, Beirut, 77 American University, Washington, 105 Amin, Ahmad, 61n Amin, Idi, 364 Ansar (Mahdist), 170, 179, 266n, 278, 327n Ansar al-Sunna, 356 Arab nationalism (nationalist), 39, 270, 375–376 Arab Peninsula, 14, 226, 227, 236, 237, 240, 356n Atabani, Ahmad M., 267 Atbara, 2, 57, 80, 185n, 193, 194, 224n, 243

Attaturk, Kamal, 294n Attorney-General, 207, 222n, 241–242, 247n, 251n, 259, 260, 263, 266n, 267, 275n, 297n, 306, 376, 376n, 381, 391 Awadalla, Babiker, 107n, 111, 176, 177n, 202, 249n, 266, 375, 376, 390 Al-Azhar, 9, 47, 61, 82, 83, 93, 284, 286, 312, 313, 313n Babikir, al-Tayyib, 70 Baggara, 158, 160–161 Baha al-Din, Ahamd, 362 Bahais, 315 Baily, R.E.F., 136n, 144 Balfour, Eliot, 25 Bar Association, 176, 182, 193, 216, 241, 242, 247, 250, 251 Bar exam, 218, 305, 306, 375, 381, 385, 391 Baʿshar, Taha, 204 Al-Bazaar, Dimitri, 68 BBC, 38n, 224n Bedri, Babiker, 70, 85n Bedri, Yusuf, 71 Bell, Gawain, 169 Beshir, al-Tijani Y., 75, 80, 87–88, 87n Board of Ulema, 31–32 Brewester, Carroll, 239n, 267n Britain (England), 4, 36n, 56, 65, 66, 74, 76, 83, 116, 144, 189, 225n, 264, 266, 355, 355n, 369 Al-Budani, Hasan, 107n Burma, 5 Al-Bushi, Muddathir, 85, 108n, 109, 130 Cairo, 4, 45, 61, 83, 88, 93, 328n Cairo University-Khartoum Branch, 305, 306 Campbell, Ewan, 139 Capitalism, 35, 36n, 278, 351 Christianity, 123, 153, 296, 319–320 Christian Missions, 123, 289, 292, 297n, 308, 309, 314

index Churchill, Winston, 64, 65, 69 Civil Secretary of the Governor-General, 119, 121, 122, 123, 125, 129–130, 132, 133, 135, 138, 140–141, 144n, 153–154, 155 Comte, August, 324 Cotran, Tewfik, 267 Creed, T.P., 107 Cromer, 4, 5–6, 65, 74n Darfur, 131, 133, 135, 139–140, 141, 145, 151, 152–155, 158, 262 Davidson, Basil, 42, 70n, 183 Davidson, N.G., 148 Davies, R., 68, 70, 79, 84, 147, 148, 148n, 160, 194n Dayfallah, Hashim, 169n Democratic Unionist Party (DUP), 180 Deng, William, 179, 179–180n Dependency theory, 35 Dilling, 125, 130, 138, 139, 141, 150–151, 155 Egypt, 4, 5, 6, 56, 65–66, 74n, 82, 93, 115, 123, 124, 169, 171, 174, 177, 200, 231, 238, 288, 296, 313, 346, 347–348, 348n, 362, 373, 376 Eliot, T.S., 81 El-Medani, Ahmed, 118, 122–123, 124–125, 124n, 139, 141, 155 El-Nuhud, 142, 143 El-Nur, M.I., 240n El-Obeid, 130, 139, 155, 167, 191 El Tayeb Osman, 267 Farah, Khalil, 67–68 Farid, Najwa Kamal, 78n Farouk, King, 313n Al-Fasher, 249 Fatima A. Ibrahim, 111, 202, 349 Fatwa, 192, 208, 284, 285n, 293, 312, 313, 313n, 340, 344, 355n, 357n Al-Fil, Ahmad, 187 Ford Foundation, 241, 267 France (French), 4, 45, 76, 77n, 87, 93, 355, 376 Gandhi, 77 Al-Gedarif, 205 Gillan, 123, 125, 126, 139, 148, 150, 151, 152 Glazer, Nathan, 53 Gordon, General, 63, 64, 65, 66, 82, 93

413

Governor-General, 62, 64, 71, 72, 75, 83, 98, 115n, 116, 119, 120, 125, 126, 130, 135, 144n, 184, 293 Gow, J.J., 190 Graduates’ Congress, 84, 108, 169, 278 Grand Qadi, 21, 72–73, 78, 98n, 101, 104, 105, 105n, 108, 109, 110, 118–120, 121–122, 127–128, 132, 133, 143, 146, 161, 168, 176, 190, 196, 208, 210, 211n, 215, 216, 283, 292–293, 372, 374, 377 Greek, 67, 68, 184n, 349n Greek (Hellenic), 342, 343 Al-Hadi, al-Mahdi, 179 Haj Musa, Omar, 223n, 249n, 284n Hamad, Khidir, 180 Hamar, 142, 143, 149, 158, 161 Hamid, Farah ʿAbd al-Rahman, 75 Hamilton, J.A. de C., 66, 137–138, 138n, 144n Hantub, 362 Al-Hasaheisa, 103, 104, 124 Hasanayn, ʿAli M., 205–207 Al-Hashim, Ahmad, 138 Hashim, Ahmad Y., 106n Hasib, Majdhub ʿAli, 108 Hawley, D.F., 22 Hayes, Justice, 190 Henderson, K.D.D., 144n, 194 Hillelson, S., 85n Humri, Ahmad U., 80–81 Humur, 158, 160 Hussein, Taha, 192 Ibn Hanbal, Ahmad, 51 Ibrahim, Salah Ahmad, 349n Imam, Abd al-Magid, 205 India (Indian), 4, 5, 12, 27, 28, 70, 70n, 74, 82, 98, 189, 357, 392 Indiana University, 3 Iran (Iranian), 6, 35, 44, 56, 319, 320, 357, 388 Jameson, Fredric, 42 Japan, 69, 71 The Job Evaluation and Classification Scheme, 247n Judaism (Jewish), 101n, 338 Juzuli, Sheikh (Qadi), 107n, 374, 377 Kababish, 70, 129–130 Kamal al-Din, Majdhub, 21, 79, 103–104, 106n, 107–108, 159

414

index

Kenrick, J.W., 169 Kenyes, John M., 363 KGB (Russia), 371 Khalid, Mansour, 32, 35, 40–41, 112, 187, 222–223, 307, 388 Khalil, Abdalla, 170 Khartoum, 21, 60, 61, 63, 64, 66–69, 68n, 74n, 78n, 79n, 82, 84, 108, 118, 125, 135, 157, 181, 186, 192, 194, 195, 196, 197, 202, 203, 211n, 222n, 224n, 228–229, 228n, 232–233, 234, 236, 238, 239, 244, 247, 255, 263, 266, 267, 273n, 274n, 279n, 324, 349n, 353, 356n, 362, 363, 377 Khatmiyya, 169, 170, 180, 278, 327, 327n, 328 Khayr, Ahmad, 107n Kitchener, 64–65, 66, 67, 82, 86n, 93 Kordofan, 122, 123, 124n, 125, 129, 130, 131, 132, 137, 139, 142, 148, 150, 151, 152, 155, 158, 160, 191 Kutum, 101n, 135, 153, 155, 158 Lacan, Jacques, 50 Lampen, G.D., 131, 138, 145, 152, 154, 155 The Legal Secretary of the Governor-General, 83, 98, 104, 107, 108n, 118, 119, 120, 121, 122, 125, 126, 127, 128, 129, 130, 132, 133, 141, 151, 293 Lindsay, W.O.B., 267 Lutfi, Galal A., 145n, 243, 246n, 373 Machiavelli, 26, 365 MacMichael, Harold, 135–136, 140–141, 153 Maffey, John, 115n, 116 Al-Mahdi, ʿAbdullahi al-Fadil, 207, 207n, 210 Mahgoub, Muhammad, 107n, 179 Al-Mahi, al-Tijani, 204 Al-Majdhub, Muhammad al-Mahdi, 91, 202, 278n Malasi, ʿAli, 76 Malik, Ibrahim, 138 mandayra, 43, 183 Mansur, Husayn, 80, 85, 101n Mao Tse-Tung (Maoist), 77 Al-Maraghi, Mustafa, 21 Al-Mardi, Muhammad Ahmad, 109 Marx, Karl (Marxism), 35, 42, 44, 44n, 201, 205, 233, 295, 296, 336, 370, 376

Massachusetts Institute of Technology, 267, 267n Medani, 109n, 197–198, 314 Medina, 52, 280, 287 Military Revolutionary Command, 176 Al-Mirghani, Ali, 169–170 Moore, 158, 158n Al-Mubark, Khalid, 203 Muddathir, Hasan, 190–191 Muhammad Ali Pasha, 200 Mustafa, Zaki, 248, 266n, 267, 376, 376n Naipaul, V.S., 61 Nasser (Nasserism), 171, 174, 217, 313, 348, 362 National Professional’s Front (NPF), 170–171 National Unionist Party, (NUP), 169, 170, 171, 180 Nayl, Rashid, 107, 107n Ndebele, 156 Nigeria, 44–45n, 66, 145–146, 148n, 169, 188–189, 189n, 266n, 305 Northwestern University, 3, 323 Nuba (and Nuba Mountains), 101n, 118, 122–124, 124n, 126, 127, 130, 138–139, 150, 151, 152, 155 Nugud, Muhammad Ibrahim, 319 Al-Nur, ʿAbd al-Rahman, 107 Nur al-Dayim, Omar, 77n Nyala, 135, 141, 153, 154–155 Omdurman, 60, 63, 64, 66–68, 68n, 82, 83, 85n, 94, 100, 179, 184n, 187, 192, 193, 199, 210, 228, 238, 256 Omer, Muhammad Salih, 266n, 373 Orwell, George, 392 Ottoman, 4, 72n, 320, 386 Pakistan, 27n, 41 People’s Democratic Party (PPD), 170, 180 Pope, Alexander, 226, 229n Port Sudan, 72–73, 237, 289 Prophet Muhammad, 51, 52, 68, 80, 147, 174–175, 188, 190, 200, 208, 235, 253, 254, 276, 279, 280, 281, 281n, 292, 299n, 300, 315, 316, 332, 333, 335, 336, 337, 339, 340, 344, 352, 354, 355, 356n, 357n, 359, 360 Qadriyya, 327 Al-Qarai, Mukhtar ʿAbd al-Salam, 306

index Qassuma, Muhammad E.S., 107 Qur’an (chapter and verse), (14:45), 68n; (30:41), 86, 86n; (24:11), 174n; (2:188), 226; (2:188), 241; (5:45), 252; (2:85), 294; (4:157), 302; (12:36–56), 337; (33:35), 354 Al-Qurashi, Muhammad al-Amin, 109n, 123–124 Qutb, Sayyid, 362 Rashad, 118, 122, 123, 124, 125, 126, 130, 139, 141, 150, 155 Al-Rashid, Khalfalla, 246n, 250n, 379n Rātib, 43 Rhodes, Cecil, 27 Richardson, J.N., 71 Rufaa, 85n, 191, 278, 279 Russia (Russian), 94, 296, 325n, 371 Rutgers Center for Historical Analysis, 33n Al-Sadig al-Mahdi, 179, 179n, 180, 180n, 182, 303, 327n, 339n, 379n Said, Beshir M., 174, 178 Salih, ʿAbdullahi, 2 Salih, Ahmad M., 75 Salih, ʿAwadalla, 182 Salman M., Salman, 40, 120 Sankara, Thomas, 392 Al-Sanosi, ʿAbdalla, 110 Santa Claus, 22 Saudi Arabia, 41, 231, 274, 288, 313, 313n, 324n, 348n, 356, 364 Sennar, 329 Sennar Dam, 25, 186 Shawqi, Ahmed, 294n Al-Shaykh, Hafiz, 304n Shiddu, ʿAbdl al-ʿAziz, 103 Al-Shinqiti, Muhammad Salih, 108 Silayman, Ahmad, 202–203

415

Simone, T. Abdu Maliqim, 229 Smith, Adam, 363 Sorbonne, 11, 324, 325 Southern Federal Party, 170 Stalin, Joseph, 371 Sudan African National Union (SANU), 179 Sudan Philosophical Society, 189 Sudan Socialist Union, 95, 251 Sudanese Women’s Union (SWU), 111–112 Supreme Council of the Armed Forces, 169n, 172, 242 Supreme Council of State (SCS), 75, 110, 165, 168, 175, 282 Al-Tom, Ali, 70–71 Trimingham, J.S., 160 Turkey (Turkish, Turco-), 4n, 43, 63, 65, 68n, 93, 200, 294n, 313, 320, 388 Twain, Mark, 235 Udal, N.R., 85, 85n Umma Party, 107, 169, 170, 171, 172, 173, 179, 182, 266n, 379n Vicars of Bray, 32 Wad Haboba, 319, 319n Weber, Max, 13, 35, 41 Willis C.A., 32 Al-Yamani, Hasan, 110 Yusuf, Dafaʿallah al-Haj, 304n, 390 Zaki, Amin, 106–107n Zarruq, Hasan al-Tahir, 110 Zarruq, Mubark, 107n Zulu, 156

Subject Index 1964 Revolution 32, 110, 208; 1958 Coup, 170; Charter on law reform, 176, 374, 388; enfranchising women, 233, 318, 358, 364n; moral rage (See also Islamization: religion, religiosity and al-Turabi’s (Hasan) Islamic Movement: grassroots dynamism), 191, 193–194, 197; radicalization of politics, 168, 171, 177; setback, 171; signaling the

crisis of nationalism, 171, 173; state feminism, 229–230 Colonialism administrative convenience, 163; administrative imaginaire, 12, 23; civilizing mission, 65, 93, 115, 163, 188; collaboration, 8, 16, 21, 26n, 79, 80, 292–295, 320–321; in relation to: collaboration withheld, 30–33, 117,

416

index

138–140, 147, 161–162; Robinson’s (Ronald) theory of collaboration, 143; Condominium Agreement 1899, 184, 184n; co-dominos, 5, 98, 115; effendis (See Effendyism); ethnology (colonial, see also colonialism: thoughtfulness and Sharia Court and Native Court: fabrications), 16, 17, 18, 24, 26n, 52, 59, 136, 137–138, 140, 146, 148, 150–151, 152–155, 152n, 156n, 157–158, 161, 368; as a facsimile state, 25, 26, 27, 31, 52, 117, 136–137, 136–137n, 140–141, 147, 161–162; Foucault’s (Michel) “governmentality,” 12, 14, 24, 26, 30, 117; Free Mason, 108; hegemony and, 28, 30; hybrid government, 4; imperialism, 17, 171; internalization of, 16; legacy of, 9, 17, 30, 35, 38, 38n, 52, 93, 95, 96, 103–104, 380; Manichaean (See also Manichaean Judiciary, Manichean: resources for manipulation, Manichaean Judiciary: Sharia Court and Native Court, Taha (Mahmoud M.): Manichaean culture, Taha’s (Mahmoud M.) Republican Brothers’ Views and Practices: Manichaean education, Teachers of Arabic and Islamic Subjects, and al-Turabi (Hasan): Manichaeanism), 9, 12, 16, 21, 28–29, 47, 87–88, 89n, 207; nationalism, 8, 26–27, 30, 32, 51–52, 101n, 109, 109n, 115, 147, 148; in relation to: resistance, 16, 18–20, 21, 25–27, 30–31, 126, 136–137, 200, 279, 347, 369, 370–371; occultism and, 147; Oriental despot and, 188; pharaonic circumcision and, 279; postcolony, 7, 13, 17, 21, 24, 42, 43, 57, 112, 218, 263, 376, 368, 373, 384; as a pre-government, 12, 20, 25–27, 27n, 31–32; rationality and governance, 26–27, 117, 140; recolonization, 370; Robinson’s (Ronald) theory of collaboration, 143; Rosaldo’s (Renato) “imperial nostalgia,” 20, 72; sexuality and, 19n, 167, 206; thoughtfulness and, 25, 116, 144–145, 144n, 151 Colonialism and Indirect Rule 5, 8, 9, 15–16, 20, 28, 32, 115, 121, 122, 127, 137, 144, 144n, 147, 148, 157n, 350; in relation to: antidote

to nationalism, 115–116, 144–145, 147–148; co-opting native patriarchy, 144, 145, 151, 156, 158, 160, 162–163; its fanatics in colonial administration, 126–127, 129, 131, 132, 133, 134–135, 136, 137, 144n, 146–147, 148n, 151n, 152, 153–155; Mamdani’s (Mahmood) colonial moral surrender, 9, 15, 20, 75, 115, 117, 156, 163; moderation and reversal of the system, 125–126, 127, 134–136, 140–141, 146–147, 153, 154; postcolony regimes modeled after, 350, 350n; undoing modernity, 144 Colonial moral injury Davidson’s (Basil) concept of, 13, 42–43, 42n, 47, 112, 166–168, 183–191; in relation to: adultery, 191; apostasy, 183, 186; comparative vigilantism against, 203, 237, 239; drinking, 183, 184, 184n, 192, 193–194, 196, 197, 198; effendis’ acceptance of it as a price for progress (See also Effendyism), 112, 187–188, 192, 196, 197, 199; effendis indulging in, 194–195, 194n, 197, 199, 222n, 271; evangelization, 123–124; fasting Ramadan, 192, 197; gambling, 183, 184, 271; homosexuality, 193, 205; licensing bars, 112, 192; microphone use to call for prayer, 192; military mess culture, 193; Miss Sudan, 197; nationalism and, 198, 200; popular antidotes against, 186–187; prostitution (See also Islamization and Sudan Communist Party) and, 112, 183, 185–186, 185n, 191n, 192, 196, 198–205, 199n; prostitution debated, 204–205, 204n; prostitution delegalized (See also Islamization: the Anti-Prostitution Act, 1968), 191, 205–206; usury, 73, 183; vigilantism against, 191, 192, 196–197, 197n Decolonization (See also Effendyism), 9, 11, 12–13, 16, 18–19, 23, 25–26, 38, 41, 42, 44, 52, 113, 143, 166, 167, 188, 207, 218–219, 223, 367–369; Cold War and, 371; as a critique of nationalism, 369–371; decolonizing the mind/ imagination, 367–371, 392; flag-independence, 371, 392; standoff

index

417

of blame and counter-blame and, 369–370; theory of, 292–293

of, 83, 91, 93–94; as Winchester of Sudan, 84

Effendyism 1924 Revolution and, 115; alienated from Islam, 222, 350, 351; calling their people “primitive,” 349; cultural idiocy of, 233n, 350–352; decolonization and, 188, 207, 248, 252, 254, 367–371; detribalized and “pushful,” 115, 115n, 163; drinking habits, 349n; feuds, 351, 368; grand western narrative and, 349, 370–371, 392; hybrid tongue of, 85, 349; identity, 8, 14, 34, 50, 166; ideological Third World facades of, 350; isolation from folk, 85, 349, 349n, 352; leisure habits, 349; monopoly of critiquing the national condition, 372, 389, 392; national narrative and, 61–62, 79, 136; networks of, 240, 241, 249, 250; origins, 77; Shakespeare’s “Great nature’s second course” and, 91n; Shakespeare’s “ogre’s food,” and, 91; sub-culture of, 81–82

Islamization (See also Colonial Moral Injury and Effendyism), agency, 13, 50; the Anti-Prostitution Act, 1968, and, 205–207: in relation to: amendments of, 207; enforcing it, 206–207; the Islamic definition of the act, 206; the Local Government Ordinance 1951, 202; Sudan Government v. Fatima Ibrahim and Others, 1957, 202–203; Bork’s (Robert H.) virtuocracy and, 43, 47–48; Committee of Revision of Laws to Conform to the Principles of Sharia, 1977, (See al-Tuabi’s (Hasan) Islamic Movement: collaboration with Nimerie), 275n, 379, 379n, 381, 384–385; as communal irrationalism, 53; empowering Muslims, 34; expansion of secularism and, 51, 379; ‘fundamentalism’ (fundamentalist), 34, 37, 45, 50, 52, 53, 54, 55, 56, 122, 313n, 333, 344, 364; Hale’s (Sondra) remasculinization of society (See also patriarchy in this section) and, 229–232, 233, 233n; Hijri calendar and, 73; ḥudūd, 15; ijtihād, 332; the Islamic Constitution draft, 1968, and, 216–217; Mahdi and, 338; modernity; in relation to: plea for, 44–54; retreat from, 33, 37, 44; shock of, 44n; moral reference in, 41, 43, 191, 200, 235, 235n, 237, 248, 250, 250n, 253–254; mughtaribīn economy and, 14, 16, 38, 226–227, 236, 237; the National Committee for the Constitution, 1956, 109; nationalism bankruptcy and, 42; nationalist legitimacy questioned by, 52, 166, 370–371; Pan-Islamism and, 11, 314; patriarchy, 15, 16; race and, 14, 15, 226, 228–229, 231, 232–233, 239; Rahman’s (Fazular) “primitive Islam,” 15; prostitution (See also Colonial Moral Injury) and, 16, 38, 42, 47, 48, 174; religious nationalism (See also Colonialism: nationalism), 108n, 109, 109n, 123–124, 126, 130, 134, 200, 388; religious right, 50, 52; religious symbols in, 34; religiousness/ religiosity (See Religion); renewal and, 332, 334; revival and, 332, 333, 334–335; ruralization of towns and,

Gordon Memorial College, 1902 (Khartoum University College, University of Khartoum) (See also Effendyism and al-Mahad al-‘Ilmī), 60, 62, 74, 74n, 75, 85n, 108, 116, 190, 266n, 267, 278, 304, 305, 306, 363; Anglicization and, 86–87; colonial mimicry in, 85; dorm life at, 84, 86, 91; English language taught in, 60, 93; English as a medium of power, 93, 94, 95, 96–97, 97n, 99n, 100, 109; establishment of, 5, 67, 82, 93; as Eton of Sudan, 82; Gordonites, 82, 85–86, 88, 149–150; homosexuality in, 85–86; hub of colonial modernity, 21; Kipling (Rudyard) on, 82; Kitchener Medical School, 86; knives and forks in, 86; al-Mahad al-‘Ilmī as a colonial other, 82–86, 93–95, 149; Qadi School (Sharia Divison), 89, 107, 108, 148, 149, 218, 331n, 375; students’ political camps according to the communists: Kayzan (rustic Muslim Brothers), 89–90, 360–361, 360n, 361n; Pepsi Cola (the trendy independents), 89; students union (KUSU), 351, 361; Sudanized, 266; vocational function

418

index

229; secularism of, 52, 53, 350; secularists and, 33–34, 37, 50; sex and politics in, 195–196; sexuality, 9; soulless society and, 45n, 46; as a subversive reading, 61, 104; Sufis and, 338; theory of justice of, 38, 41, 253, 323; tradition and modern, 35–36, 37, 60, 326n, 330; Tūtū Kūra (lottery) and, 270–271; urbanization and, 14, 226, 228–229, 228n, 232–233, 239, 333; usury and, 73; utopia of, 46; westernization and, 50; women citizenship and, 49n Islamization and Authenticity 76–77, 76–77n; nativism and, 16, 369–370; nativism in relation to: abacost, 76n; to authenenticite of Mobutu (Sese Seko), 369; to Chatitude of Tombalbaye (N.), 369, 369n; to instantaneous justice of Nimerie (See also Islamization, Nimerie and Nimerie’s Legal Revolutions), 369; yondo, 369n Islamization, al-Azhari (Ismail) 1967 Sharia Courts Act, 110, 211, 213–216, 214n, 372, 374; amendments of, 214, 214n; in relation to attending legislation: Child Care Act, 1968, 214; Sharia Courts Execution Act, 1968, 102, 211, 211n; Sharia Courts Rules of Criminal Procedures, 1968, 212–213; Sharia Courts Rules of Precautionary Measures, 1968, 212–213; criticism of, 213–214; de-effeminizing sharia court (See also Sharia Court Division: effeminization), 212, 372, 374; repealed in 1972, 214, 217–218, 374; repealed Sudan Mohammedan Law Courts Ordinance, 1902, 211; reversal of its impact by the Organization of the Laws Act, 1973, 214 Islamization, Bāṭil Economy Bāṭil economy and, 14, 221–222, 226–240, 258, 270, 339; in relation to: crime theory, 234; crimes of unlawful gain, 226, 227, 228n, 235–239, 253n; emptying of the state, 226–227, 236–238, 371; metaphors of Muslim discontent: ʿashwāī (randomness), 228; fatil (money fetishism), 228, 231; kasha (anti-vagabondage campaigns),

228; murtāḥ (comfortable/class), 228, 229–230, 233–234; ṭufilī (parasitic), 235n; leftist take on Bāṭil economy, 234–235n Islamization, Modes of Analysis discourse analysis, 39–40; Foucault’s (Michel) body politics, 277–278; Foucault’s (Michel) “recommended liturgy,” 44; historical/return of Islam/ Orientalist approach, 39, 42, 46, 46n, 48, 49, 51; instrumentalist/ functional/ ideology, 34, 39, 41, 42, 48, 49, 50, 51, 166, 183, 222, 223, 256, 270; Marx’s (Karl) “opium of the people” and “soulless society,” 44; political economy/dialectical, 39, 49–50: a case in point, the Maitatsine movement in Nigeria, 44–45n; psycho-biographical approach, 39; Simmel’s (Georg) “musical approach,” 13, 41, 47 Islamization, Nimerie 1983 Nimerie’s September Laws, 3, 14, 38, 224, 252, 378, 385, 388; al-ʿAadāla al-Nājiza (instantaneous justice) Judiciary, 10, 11, 38, 105, 106, 221, 236, 248, 251, 385, 390; advertising its record, 254–256; as anti-common law, colonial judiciary, 221, 224, 249–251, 252, 385, 390; as anti-elitist, 222–223, 222n, 250, 249–250n, 253; backlog of the old Judiciary and, 221, 239–240, 248–249, 249n, 253, 254–255, 257, 263–264n, 390; Board of Inspection and Complaint and, 255; concept of, 248, 249; institutionalization of, 251–254; the Judiciary Authority Act, 1983, and, 254, 262–263; morally active judges of, 248, 253, 254, 382, 390; as Nimerie’s Second Legal Revolution (See Nimerie’s Legal Revolutions); the National Committee to Lay the Basis of the Strategy of Instantaneous Justice, 251; the Ombudsman Office, 255; the Order of Good and Prohibition of Evil Committees, 244; passion for justice, 221–223, 243, 257–258, 270; in relation to: comparative passions for justice (Britain, Kenya, South Africa, USA), 225n; to Judiciary playing along, 243–244, 248–249; People’s Assembly playing along, 244–246; Nimerie’s

index populism, 222–223, 222n, 223n, 257; rise of advocacy business, 240–242, 240n, 258; well-handled by Nimerie, 249–256; wrong-footing adversaries, 221, 224–225, 224–225n, 248–254, 261n, 270; popular conception of justice and, 222, 223–224, 225; punitive impulse/retribution and, 225, 252–253; relative to: amputations, 244, 252; flogging, 81–82, 81n, 244, 252, 253; rehabilitation abandoned, 253; stoning, 252, 252n; vigilantism, 226; the Removal of Occupants of Government Buildings, 1969, and, 245n; Righteous Leadership Directive, 249–250n; as a second judiciary, 242–246, 252, 258; relative to: precursors: Abboud’s (Ibrahim) presidency (1958–1964), 242n; military tribunals in the 1970s, 242, 258; People’s Market, 244; Price Courts, 244; the Protection of Public Tranquility Act, 1982, 244; as a spectacle (pouring of alcohol in the Nile in 1983), 349n; underfunded old judiciary, 239–240, 261–262 Islamization, Third-Worldism development, 46; dysfunctional regimes of, 46–47; modernization, 46, 52, 72n; radicalism bankruptcy, 42; separation of powers in, 243, 246, 246n, 303n; social fantasies of, 46; socialism in, 39, 46, 47, 52, 171, 226, 326, 350, 371, 375 Al-Mahad al-ʿIlmī of Omdurman (Omdurman Islamic University, See also Gordon Memorial College), 61, 82–86, 104, 106n, 150, 208, 218, 271, 281, 281n, 287, 296, 298, 304, 323, 331n; Ali (Muhammad M.) on, 84; the Graduates’ Congress and, 84; Mahadites, 82, 85–86, 149; modernization of, 148–150; origins, 82–83, 94–95; philanthropy and, 84; self-modernized, 150; unemployable graduates, 84, 93–94 Manichaean Judiciary Civil and Sharia Divisions (civil and sharia courts) in relation to: Advocate Ordinance, 1935, 216; autonomy of, 246–247, 249, 250–251, 256–257,

419 258, 262, 390; in relation to: Judge el-Naqar’s (Obeid) incident, 178; the Sudan Government v. Sergeant-Major Nasr Abd al-Rahman, 1974, 258–259; Chief Justice and, 107n, 110, 176–177, 211, 217, 243, 247, 250, 261n, 262, 374, 375, 378, 381, 384, 390; child support and, 111, 342; the Civil Procedure Act, 1974, 215, 248; Court of Jurisdiction, 214–215, 217; courts of appeal, 180, 181, 182, 205, 211, 212, 265, 268, 297, 298n, 311, 374, 378; decolonizing the law/Sudan identity, 37–39, 41, 223–224, 252, 256, 263, 374, 377–380, 384, 385; disparity in terms of service in, 98–99, 99n, 103, 386; duality and, 4, 6, 7, 10, 37, 40, 59, 165, 181, 218, 256, 259–260, 371, 372, 375, 378, 379; equalization/parallelization and, 99, 109–110, 167–168, 176, 207, 211, 217, 219, 272, 373, 374, 377, 378, 389; hierarchy and, 1, 3, 4, 5, 6, 7–8, 11, 22, 29–30, 40, 59–60, 100, 167–168, 176, 303–305, 304n, 305–307, 330, 368, 371, 372; the High Judiciary Council (HJC), 246, 251, 260, 262, 263, 379, 381, 385; judges’ (civil) unionism (See also Sharia Division and the Judiciary: qadis’ unionism), 176, 181, 224, 246–247, 247n, 250–251, 251n, 256–257, 260–263, 261n; in relation to: negative popular perception of, 260, 262n, 388; the Number of Judges and Salaries of the Judiciary Act, 1976, 260; playing into the hands of Nimerie, 260–262, 261n; the Judiciary Authority Act, 1969, and, 217, 374; Judiciary politics, 40–41, 60, 165–166, 218–219, 244, 245–246; legal aid and, 241–242; legal education and, 216, 218, 375, 377, 390; legislative function of, 205, 264, 268–269, 382, 384; Manichaean resources for manipulation (See also Colonialism: Manichaean, Manichaean Judiciary: Sharia Court and Native Court, Taha (Mahmoud M.): Manichaean culture, Taha’s (Mahmoud M.) Republican Brothers’ Views and Practices: Manichaean education, Teachers of Arabic and Islamic Subjects, and al-Turabi (Hasan): Manichaeanism), 165, 218–219, 321; manipulated by

420

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al-Azhari (Ismail), 9–10, 112–113, 165–168, 176, 179n, 180, 182, 207, 218, 389; manipulated by Nimerie, 10, 12, 48, 112–113, 165–166, 270, 389–390; origins of, 4, 5, 59–60, 63, 97–98; reception of common law in, 29, 188, 391; relative to: abolition of common law (See Nimerie’s Legal Revolutions); Bill of Exchange Ordinance, 1914, 265; case reporting, 267–268; incompatibility with Muslim Law, 104, 188–189, 188–189n, 196–197, 198–199, 206, 218–219, 224, 224n, 248, 252, 371; keeping abreast of developments in common law, 264–265, 265n, 266n, 267, 268; The Sudan Law Journal and Reports, 267; promotion of judges, 264–265, 390; purging of judges, 266, 390; self-reform, 263–264–270, 380, 384, 385, 389, 391 Manichaean Judiciary, Amalgamation amalgamation of, 12, 29, 59–60, 107, 107n, 162, 181, 259–260, 259n, 286, 305, 306, 341, 367, 372–393; amalgamation in relation to: Civil Code, 1971, 375; the Civil Procedure Act, 1974, 277; decolonization, 391; imposition of, 390; the Judiciary Authority Act, 1969, 217, 374; the Judiciary Authority Act, 1972, 375; the Judiciary Authority Act, 1973, 269–270, 373, 377; the Judiciary Authority Act, 1976, 379; the Judiciary Authority Act, 1982, 382; the Judiciary Authority Act, 1983, 254, 262–263; resistance of qadis and judges to, 373–374, 377–378, 382, 384; re-training of judges and qadis to adjust to, 379, 380, 381, 382, 383; strategies of qadis and judges to take advantage of, 373–374, 377, 379, 380–381, 384; the unified judges’ roll, 381, 383–384, 385–388 Manichean Judiciary, Presidential Politics 1958–1964, Abboud’s (Ibrahim) presidency, 172; 1965–1969, al-Azhari’s (Ismail) presidency, in relation to: the 1967 Sharia Courts Act (See Islamization and al-Azhari); biography of, 77–78, 168–173, 169n;

executive presidency and, 172, 174; his nationalist legitimacy challenged, 172–173, 177–178, 218, 370–371; the New Forces Congress and, 180; running against the Constitution: the first constitutional case, 1965, 175–177; the second constitutional case, 1968, 179–180, 180n, 181; 1969–1985, Nimerie’s presidency (See Islamization and Nimerie and Nimerie’s Legal Revolutions) Manichaean Judiciary, Sharia Court and Native Court concurrent sharia jurisdiction, 116, 117, 118, 140, 142, 146, 148, 154, 160; feuds: over appellate, 118, 126, 127–128, 142, 143, 145; over competence to judge sharia cases, 118, 126, 128, 129–130; over jurisdiction, 8–9, 28–29, 32, 118–120, 119n, 124, 126, 127, 128, 152–153; over legal forms, 132–134; customary law/ patriarchy and, 9, 116, 124, 129, 137–138, 144, 147–148, 151, 160–161; fabricating the relationship between (See also Colonialism: colonial ethnology), 117, 129–130, 142, 143, 147, 150, 152, 154, 155, 369; invention of customs, 156, 157n; maʾzūn politics of, 126, 131–132, 159; meglis (council of elders to resolve family disputes), 137–138; missed opportunity to work together, 138–143; nationalist support of sharia court (See also Islamization: religious nationalism), 126, 128, 140–141, 149, 154; Sharia Courts Act, 1967 (See Islamization and al-Azhari); smart litigants manipulating the system of, 150–151, 151n, 156, 161; tribal fekis in, 147–148; ulema in, 129, 140, 141, 142, 148; urbanization and the system of (See also Colonialism: colonial moral surrender), 142, 143, 150–151, 152–155 Manichaean Judiciary, Sharia Division and the Judiciary circuits and, 130, 132; conception of, 5, 31, 98; as a cultural anachronism, 35, 209; cultural relevance of, 100–101, 102, 102n, 105n; effeminized/othered, 2–3, 11, 15,

index 59–60, 98, 98n, 100, 101, 101n, 102, 103, 104, 105, 111–112, 210, 273, 341–342, 379–380, 387–388; Grand Qadi, 104, 107n, 108, 109, 118, 119, 374; Grand Qadi Sudanized, 98; High Sharia Court, 11, 182, 183, 208, 210, 212, 214, 273, 275n, 281, 282, 283, 289, 292, 308, 309, 314, 379; humiliated by Nimerie, 211, 217–218, 283, 373, 389; non-Arabic speaking communities and, 101, 101n; Nuba policy and, 123–124, 126, 130, 148, 150–151, 152, 155; as personal law circuits, 377; qadis in relation to: code of dress, 8, 77, 78–79, 80, 100, 101n, 105, 187; migration to Civil Judiciary (See Taha (Mahmoud M.): the 1985 Court); as product of modernity, 31, 109–110, 111; their realism, 182–183; unionism (See also Manichaean Judiciary: judges’ unionism), 99, 109–112, 387, 389; in relation to: ignored by leftist, modern forces, 110–111; ignored by Sudan Women’s Union (SWU), 111–112; suppression of (See also Colonialism: Indirect Rule), 15, 32, 107, 107n, 116, 117, 123, 124, 129–130, 131, 134–135, 143, 148, 150, 151, 153, 154, 155, 162, 377; women clientele of, 156–161; women’s judges (See also effeminized/othered in this section), 2, 8, 15, 16, 35, 101–102, 102n, 160–161 Modernization colonial modernity, 13, 67–69, 106, 108, 144, 253, 326, 348, 355n, 361; imperative of, 33, 371; little modernity (See also Sharia Division and the Judiciary and Taha (Mahmoud M.): the 1985 court), 229, 229n, 238–240, 239n; modern and tradition, 13, 16, 61–62, 61n, 63, 92, 98, 112–113, 149–150, 179, 341, 341n, 342, 358, 360n; modern forces, 176, 181–182; modernization theory, 13, 33; multiple modernities, 13, 326 Muslim Secularists church-state, 51, 170, 319–320; enlightenment, 51; Lacan’s ( Jacques) “innocent fools,” 50–51, 385; Mutazilites, 50; predicament in a

421 comprehensive religion, 50, 52, 319; secular tradition, 53

Nimerie’s Legal Revolutions 1969–1971, putting an end to the Islamization before his coup, 210–211, 283; 1971–1972, First Legal Revolution: its Arab nationalist and socialist bias, 376; the Civil Code, 1971, 375–376, 378; critiqued, 376, 376n; Egyptian sources of, 376; repealed, 376; a second hand reception, 376; 1972–1983, Second Legal Revolution: the Civil Procedure Act, 1974, 376, 377; restoration of the common law, 248, 378; 1983–1985, the Third Legal Revolution (See Islamization and Nimerie) Northern Sudanese bastardization of other national cultures, 152; dominating the postcolony, 140; egalitarianism of, 16, 101, 233–234; foundational myth, 316–317; moral space, 232–233, 237; “northern-minded” in the view of the British, 122–123, 126; racial fantasies of, 15, 226, 232–233, 239; secular naiveté, 317; as son of Arabs, 15, 233 Postcolonial Studies ambivalence, 20n, 121; Anderson’s (Benedict) imagining a nation, 369; Bhabha’s (Homi) “colonial nonsense,” 20n; in relation to: cases of colonial nonsense, 85n, 118–120; Bhabha’s (Homi) hybridity (See also hybridity in this section), 7, 12, 18–20, 20n, 21–22, 24; Bhabha’s (Homi) “sly civility,” 21, 21n, 121; cases of, 21, 21n, 117, 207; Bourdieu’s (Pierre) “game of honor,” 121; Breckenridge’s (Carol) and Van de Veer’s (Peter) “administrative imaginaire,” 12, 23; class and, 13; colonial gossip (See also Colonialism: ethnology), 139–140, 145; colonial mimicry (See also Gordon Memorial College), 85; colonial/imperial nostalgia (See also Colonialism: Rosaldo’s (Renato) “imperial nostalgia”), 72, 144; Conrad’s (Joseph) Marlowe, 369, 392; decentring Europe, 24; discourse and, 23, 47; el-Affendi’s (Abdelwahab)

422

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“critique of my movement,” 53; Enlightenment narrative, 16, 392; Fanon’s (Frantz) “colonial sentinel/” nationalist, 18, 20, 370; fiction of centerality, 62; Foucault’s (Michel) “governmentality,” 12, 24–27, 26n, 28, 30; Foucault’s (Michel) “history of the present,” 16; fragments (See also Colonialism: Nuba policy), 12, 162, 137, 392; gender in, 13; Gramsci’s (Antonio) “subaltern,” 12; grand Western narrative, 349, 392–393; Hall’s (Stuart) transculturation, 19; hybrid (hybridity), 16, 26n, 28, 30, 331, 331n, 349; otherness in, 8, 62; postcolonial blues, 367, 392; postcolonial predicament, 12, 17, 23, 24, 28, 367; Prakash’s (Gyan) “after colonialism,” 16–17; presentism and, 17; romance of the margin, 60–61; Said’s (Edward) “Orientalism/ representation,” 12, 19, 24, 29, 44–45, 50, 52, 122, 126, 131, 138–139, 140, 147–148; in relation to: el-Medani (Ahmed), 122–126, 124n; internal Orientalism, 29; Sartre’s (Jean-Paul) “nervous condition,” 7; Spivak’s (Gayatri C.) “unlearning privilege,” 62; subjectivity, 16; taxonomies, 367; textuality, 12, 20, 21–22, 23–24, 50; theory in, 12; Whigism, 17 Religion historical religiosity (See al-Turabi’s (Hasan): Theology of Modernity); Mahadism in relation to: degenerative premise of religion, 339; dynastic legacies, 339n; Jewish and Christian influences on, 337; revival expression of, 339; moral rage (See also the 1964 Revolution: moral rage) in relation to: “letters to the editor” campaigns, 191–192, 195–196; removal of munkar, 197–198; orthodoxy and, 31, 49n, 65, 147, 152–153, 160, 277, 277n, 313n; orthopraxy, 277n; popular Islam, 152n, 160; religiousness/ religiosity, 13, 42, 47–49, 49n, 191–207, 218–219, 332, 335, 354; Ricoeur’s (Paul) first and second naiveté, 49; secular bias and, 33; Simmel’s (Georg) “musical approach,” 13, 41, 47; Weber (Max) and, 13, 41

Sharia Law as anachronistic, 28, 36, 162; bayt al-ṭāʿa and, 159, 378–379; capitalism and, 36, 36n, 44n, 278; compared to European laws, 36; consent in marriage in, 159–160; customary law and, 98, 124, 129; detribalization and, 116, 145; disempowerment and, 31n; as a dying tradition, 6; Hanafite (See also Colonialism: colonial ethnology), 142, 151, 153; Malikite (See also Colonialism, colonial ethnology), 142, 151; masculinity and, 166, 166n; modernity and, 36; modernizing it, 102n, 111, 373; as modified by custom (See also Colonialism: colonial ethnology), 116, 124, 129, 137, 146, 153, 156, 157, 157n, 158–160; a case in point; Heir of Ahmed Khidir Nugud v. Heirs of Neima Khidir, 1959, 158; as a national tradition, 8, 29, 135–136, 137, 145, 146, 162, 391; natural law and, 37; patriarchy and, 102, 103; patrimonial state and, 36, 36n; polygamy in, 158; as premodern, 29, 38; as progressive, 37, 40; rationalism and, 36n; reduced to customary law, 145–146, 145n, 147; Rodinson (Maxim) and, 36n; Rosen (Lawrence) and, 36, 37; Sharia Circular, 41, 1939, 101n; Sharia Circular, 54, 1960, 111, 159; slavery and, 127; territorial law and, 15; Turner (Bryan) and, 36n; Weber (Max) and, 36n; Weber’s (Max) kadi (qadi)-justice, 35, 36n, 37 Sudan Communist Party (SCP) 107, 107n, 110, 234n; 1964 Revolution and, 170–171; 1971 Coup, 1–2; anti-communism in relation to: al-Azhari (Ismail), 9, 170–171, 173–177, 180, 182, 201–202; clerics, 207–208; banned in 1965, 165, 172, 174–176, 176n, 182, 208; egalitarianism and, 234; High Teachers’ Institute Incident and, 174, 200, 208, 210; Mahjub, (Abd al-Khalig), 1, 3, 51, 173, 174, 207, 207n; modernization and, 110, 207n; Pan-Islamism and, 313n; on prostitution: accused of having a soft point for, 204–205; communism of

index women, 201; dissenting voices on, 203, 204; economic base of, 201–202; indulgence of its members in, 203; lawyer members defending prostitutes, 202; playing down the morality in the business of, 201–202; secularism and, 207; World Peace Council, 107n Taha, Mahmoud M. biographical note, 278; on First Message (Meccan) and Second Message (Medinian) of Islam, 280–281, 281n, 388–389; in relation to: clerics’ criticism of the two-message concept, 280–281; on clerics, 209, 271; effeminizing colonial sharia court (See also Islamization and al-Azhari: de-effeminizing and Sharia Division and the Judiciary: effemnized), 103, 282, 286, 289–290, 292, 294–295, 308, 309–310, 320–321; global audience for, 280; on Islamic Constitution draft, 1968, 209, 210; Manichaean culture ((See also Colonialism: Manichaean, Manichaean Judiciary, Manichean: resources for manipulation, Manichaean Judiciary: Sharia Court and Native Court, Taha’s (Mahmoud M.) Republican Brothers’ Views and Practices: Manichaean education, Teachers of Arabic and Islamic Subjects, and al-Turabi (Hasan): Manichaeanism), 61–62, 221, 277, 302–303, 304–307, 308, 316, 320–321, 368, 373, 388–389; on Muhammadan Messiah, 280–281, 281n, 282, 300–302, 302n; on pharaonic circumcision, 279; spiritual praxis and, 279–290 Taha (Mahmoud M.) and the 1985 Court clerics behind it: ʿAbd al-Salam (Mukhtar), 306; Abu Qurun (al-Nayal), 305, 305n; al-Amin (Fouad), 243, 303n; Haj Nur (Muhammad), 297, 299, 303–305, 310–311; ʿIsa (Muhammad Adam), 297, 299, 304, 306; al-Kabbashi (al-Mikashfi Taha); 297, 298n, 300–302, 303–304, 304n, 310–311; al-Mahalawi (Ibrahim), 304, 305,

423 305n, 306, 310, 312; effendi disdain of them, 307, 391; a generation of assertive qadis, 105–106; identity as Muslim Brothers, 303, 304; identity as qadis, 303; identity as Sufis, 304, 305; migration from sharia court to civil courts and academia (See also Taha (Mahmoud M.): the 1985 Court), 104–105, 106–108, 106n, 304–307, 304n, 305n, 385–386; migrations encouraged by the British, 107; politics and legalities of the court, 303, 307–309, 310, 311, 312, 314–316; sentence nullified by High Court in 1986, 311–312, 318

Taha’s Miḥna (persecution, trial, and execution) apostatized, 1968, 208, 210, 277, 281, 282, 289, 290, 292, 308, 309, 311, 312, 313n, 315; apostatized, 1985, 273, 277, 291, 297, 308, 309, 311, 312; al-Azhari’s (Ismail) role in (See also Taha (Mahmoud M.): Republican Brothers’ Views and Practices), 61, 284, 286, 312–313; clerics and, 30, 32, 183, 275, 277, 280–281, 281n, 282–283, 284–285, 290–291, 308, 309–310, 314–316; communism of women and, 281–282n; Daud’s (al-Amin) role in, 281–282, 282n, 284, 291, 313n; execution of Taha, 10, 11, 221, 297; Foucault’s (Michel) body politics and, 277–278, 298, 301–302, 318; ḥisba and, 282; Ministry of Religious Affairs and, 284; modern elite oppositional use of: Arab Human Rights League Day, 318; economy of martyrdom, 298, 317–319; foundational myth of genetic tolerance (See also Northern Sudanese), 316–317; tribute culture, 274, 318; Muslim Brotherhood and, 273–277, 274n, 275n, 276n, 282, 283, 284, 302–303, 304, 317, 319; Muslim World League and, 73, 284, 312–313; Mutiʿi’s, (Muhammad Najib) role in, 296–297, 296n; Nemeire’s role in, 284, 284n, 297, 311, 311n; neo-Sufism and, 273–274n, 297, 305; orthodoxy and, 277; People’s Assembly and, 285; Saudi orthodoxy and, 274, 313, 313n; Sudan Communist Party (SCP)

424

index

and, 208–209, 319; Sufism and, 209; Supreme Council of State (SCS) and, 182, 210, 282–283; Taha’s views on prayers and (See also al-Turabi (Hasan): prayers); 281, 284n; al-Tayyib (Omer Muhammad, State Security Chief) and, 296–297; Zaki (Husayn) and, 313n Taha’s Republican Brothers Their 1985 recantations miḥna, 297–302; in relation to: 1960 precedent of, 298–299; coerced to repudiate Taha, 298; comparative cases of, 319; council of clerics administering them, 299; as a Fellini film, 298; Foucault (Michel) and, 299; spectacle and, 298; text of, 299–300, 299n; videotape of, 298n; vindictive techniques of, 299–301

Teachers of Arabic and Islamic Subjects (See also Colonialism: Manichaean, Manichaean Judiciary, Manichean: resources for manipulation, Manichaean Judiciary: Sharia Court and Native Court, Taha (Mahmoud M.): Manichaean culture, Taha’s (Mahmoud M.) Republican Brothers’ Views and Practices: Manichaean education, and al-Turabi (Hasan): Manichaeanism), 92–97; al-Bashir (ʿAbdullahi al-Shaykh) on the colonial culture of their humiliation, 92–94; injustices in the terms of service of, 92; origins of the Association of Teachers of Arabic and Islamic Subjects, 95; Sudan Socialist Union and, 95n; teachers of modern subjects and, 96; unionism of, 95–97

Taha’s Republican Brothers’ Views and Practice 208, 273, 278; al-Azhar and, 284, 286, 312–313; on clerics as a colonial invention/collaborationists, 103, 292–295, 320–321; court dramas of, 285, 289–290, 290n; court drama of Daud (al-Amin), 1978, 210, 291, 310; court drama of Kosti town, 1975, 290, 291–292, 315, 316; court drama of Port Sudan, 1975, 290, 291–296, 308, 309; elitist disposition of, 281; gender and, 281–282n, 287–288; the Judiciary and, 256–257, 260; on liquidation of religious bureaucracy, 210, 286–287, 286n; Manichaean education ((See also Colonialism: Manichaean, Manichaean Judiciary, Manichean: resources for manipulation, Manichaean Judiciary: Sharia Court and Native Court, Taha (Mahmoud M.): Manichaean culture, Teachers of Arabic and Islamic Subjects, and al-Turabi (Hasan): Manichaeanism), and, 288–289, 295n, 388; Marx’s “opium of the people” and, 295–296; modern elites and, 286, 287–289; nationalism and, 278, 278n–279n, 292–293, 294n, 313, 320; Nimerie’s regime and, 283, 283n, 289, 296, 297; pamphleteering activity of, 210, 285n; street-corner discussions of, 210, 285; ustāz (Taha) and, 299, 300

Al-Turabi, Hasan 1964 Revolution and, 351; anti-clericalism of, 327, 336, 339–345, 346n; on apostasy, 353; apostatization of, 353, 355; Arabizing law courses, 226n; on art: aesthetic and ibtilāʾ (See also his Theology of Modernity), 354, 359, 360; Arbocentrism, 359–360; murūq (desertion of religion) of art in relation to: its basis in class society, 359; its basis in communist idolatry, 359; its basis in self-glorification, 359; patriarchy, 354; sponsorship, 360; Sufi spirituality, 359; as Attorney-General, 207, 275n, 341, 381; on canonical Western narrative, 349, 355n, 365; Cartesian logic and, 324; on co-education, 356; Committee of Revision of Laws to Conform to the Principles of Sharia, 1977 (See Islamization); communism and, 355; demonized by adversaries, 365; dialectic of the tradition and modern and, 323–326, 327, 339, 352; dialogue with the West and, 353; dubbed a cleric, 353; dubbed communistic secularist, 353–354; dubbed a disguised westernized, 353; Effendyism (See also Effendyism) and; 274, 348–352; in relation to: inability to criticize modernity, 326; an isolated hybrid, 331–332; nationalism, 52; family romance and,

index 11, 33; on fiqh as a popular enterprise, 340, 340n, 353; fundamentalism and, 333; on the golden age of Islam, 333, 343–344; on Greek (Hellenic) legacy, 342, 343; on Islam as the sole indigenous, democratic culture, 350; on the Islamic state: collaborating with tyrants licensed by Prophet Joseph, 336–337, 337n; emasculated by Islamic clerics, 341, 335–336, 350; Marxist withering away of the sate, 336; prayers as a school of statesmanship, 337–338; on jihad, 353; Khomeini and, 325n; on Mahdist tradition, 329, 338–339; Manichaeanism (See also Colonialism: Manichaean, Manichaean Judiciary, Manichean: resources for manipulation, Manichaean Judiciary: Sharia Court and Native Court, Taha (Mahmoud M.): Manichaean culture, Taha’s (Mahmoud M.) Republican Brothers’ Views and Practices: Manichaean education, Teachers of Arabic and Islamic Subjects): as a family experience, 323, 330–331; as the origin of colonial clericalism, 336; as the origin of separation of religion and state, 341; Judiciary and, 59, 166, 182, 341, 373, 381–382; modernity and (See his Theology of Modernity); and Ph.D., 325n; as a power-crazed politician, 335; on resurrection, 353n; on Rushdie (Salman), 353; secularism and, 327, 353; Sheikh Idris (Jaʿfar) and, 353, 379; Shaykh’s credentials and, 352–353; Sorbonne and, 11, 324, 325n; on Sunni/Shia divide, 352, 353; on women, 354–358; in relation to: competing with communists in appealing to, 355n, 358; emancipation as an ibtilāʾ (challenge, see also his Theology of Modernity) to Islam, 354, 356; Muslim patriarchy, 354, 357; taklīf (full citizenship) in Islam, 354–355, 357; al-Turabi’s life-long fight for women cause, 354–355, 356, 356n; western influence on al-Turabi, 355; Women between the Teachings of Islam and the Customs of Society, 1974/1984 in relation to: origin in prison self-reflection and reeducation, 358; writing strategies of, 356–357, 356n, 357n, 358

425

Al-Turabi’s Islamic Movement (the Muslim Brotherhood) 1989 coup and, 77, 103, 204, 233n, 243, 274, 361, 391; al-Azhar and, 356; Ben Baz, ʿAbdal ʿAziz (a Saudi cleric) and, 348n; collaboration with Nimerie (See also Islamization: the Committee of Revision of Laws to Conform to the Principles of Sharia, 1977), 247, 275n, 336–337, 346, 349n, 351–352, 390; conservatism (salafī piety) in, 346n; cured of elite idiocy (See also Effendyism), 350, 351–352; custom of patriarchy in, 357; egalitarianism of, 345–346, 347; the Egyptian Muslim Brotherhood and, in relation to: excommunication from the Pan-Islamic Brotherhood by, 348; hegemonic politics of, 347–348; organizational models of, 346, 346n; public perception of the relationship, 317; Saqr (ʿAbd al-Badiʿ, a member of the Egyptian Brotherhood) and, 348; feminization of (restructured to accommodate women members), 357–358; grass roots dynamism of (See also 1964 Revolution: moral rage, Colonial Moral Injury, and Religion: moral rage), 90, 110, 110n, 191–194, 196–200, 202, 206, 351; ibtilāʾ (See also al-Turabi’s (Hasan) Theology of Modernity) and, 336, 345, 347, 356; Islamic constitution and, 32, 35, 112, 167, 181, 182, 190, 198, 207n, 209, 210, 216–217; as Kayazn (throwback), 89–90, 89n, 360–361, 361n; labels of: Islamic Charter Front, 1964, 108n, 346n, 348n; the National Islamic Front, 1985, 348n; manipulating the University of Khartoum Students Union (KUSU), 351; modernity and tradition, 345, 358, 365; modernized by al-Turabi, 90; nationalism and, 347; oppositional culture in, 336; origins among students, 90, 350; the “political” and “educational” factions of, 345–347; religious education and, 347; the Sudan Communist Party and, 171, 174–176, 208n; Sufi culture and, 346n Al-Turabi’s Lineage of al-Turabis Ansar (Mahdist) tradition of, 169, 327, 352; his appraisal of its legacy,

426

index

326, 328n, 329–330; biographers of, 323–324, 325n, 330–331; Khatmiyya tradition of, 327–328; as manipulative of tradition, 327; Qadriyya tradition of, 327; representatives of: al-Turabi (ʿAbdalla Dafaʿallah), the qadi, 1891–1990, 83, 95, 323, 330, 331, 331n, 355; al-Turabi, (Hamad), the Sufi activist, 1639–1704, 327–328, 328–329n Al-Turabi’s Theology of Modernity 11, 37, 325; American Puritanism and, 333; Arabic language and, 333; atonement to God in, 335; clerics

and, 339–345; historical religiosity and, 332, 335, 339–340, 354, 358, 359–360; ibtilāʾ (theological challenge) of modernization to Islam, 332, 332n, 333–335, 342, 365; Mahdist renewal and, 338–339; renewal/revival and, 332, 334, 339; state as co-extensive with modernity, 335, 347; Sufis and, 338; transformative power of al-Turabi’s theology as evidenced by the career of Ahmad (Hasan Makki M.), the public scholar, 361–363 and Jar al-Nabi, (ʿAbdalla), the oil tycoon, 363–365; urbanization and, 333

ISLAM IN AFRICA ISSN 0928-5520 1. Kane, O. Muslim Modernity in Postcolonial Nigeria. A Study of the Society for the Removal of Innovation and Reinstatement of Tradition. 2003. ISBN 90 04 12588 4 2. Reese, S.S. The Transmission of Learning in Islamic Africa. 2004. ISBN 90 04 13779 3 3. Nicolini, B. Makran, Oman and Zanzibar. Three-Terminal Cultural Corridor in the Western Indian Ocean (1799–1856). 2004. ISBN 90 04 13780 7 4. Ibrahim, H.A. Sayyid #Abd al-RaÈm§n al-MahdÊ. A Study of Neo-MahdÊsm in the Sudan, 1899-1956. 2004. ISBN 90 04 13854 4 5. Umar, M.S. Islam and Colonialism. Intellectual Responses of Muslims of Northern Nigeria to British Colonial Rule. 2006. ISBN 90 04 13946 X 6. Soares, B.F. (ed.) Muslim-Christian Encounters in Africa. 2006. ISBN 978 90 04 15264 9 7. Ibrahim, A.A. Manichaean Delirium. Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898-1985. 2008. ISBN 978 90 04 14110 0 8. Maarouf, M. Jinn Eviction as a Discourse of Power. A Multidisciplinary Approach to Moroccan Magical Beliefs and Practices. 2007. ISBN 978 90 04 16099 6 9. Reese, S.S. Renewers of the Age. Holy Men and Social Discourse in Colonial Benaadir. 2008. ISBN 978 90 04 16729 2