Thursday, 12 March 2015

Exposing Injustice: the Meriam Ibrahim Case in Sudan



By Miss Nabila Okino and Miss Nushin Rahman, African Region Editors, BCU LLB Students (2013-2016)

Following the Islamicization policy in Sudan, most clearly evident in modern times beginning in 1983, the primacy of Sharia law was mandated within The Interim National Constitution of the Republic of the Sudan (2005), Article 5(1), which states:

Nationally enacted legislation having effect only in respect of the Northern states of the Sudan shall have as its sources of legislation Islamic Sharia and the consensus of the people.   

In recent times there have been many reports of abuses involving freedom of religion caused by the Sudanese government. A major example of this is the case of Meriam Ibrahim which attracted global media attention in 2014. When considering questions of national sovereignty, it is important to take cognisance of national interests, but these do not give a country licence to violate principles of international law, including international humanitarian law and international human rights law. Under the Interim Constitution human rights are recognised and protected (Part Two: Bill of Rights) and Article 27(3) states:

All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of [the Constitution]

This blog post seeks to examine the human rights issues arising from the Meriam Ibrahim case. Central to our analysis will be the relationship between religion and the state and why Meriam’s plight demonstrated to the Sudanese government, the need for legal reform.

Meriam Ibrahim was born to a Sudanese Father, who was a Muslim and to an Ethiopian mother, who raised Meriam as a Christian. In December 2011 Meriam married Daniel Wadi, a Christian man, and in 2012 gave birth to a son. She then became pregnant with her daughter late in 2013.

On 11 May 2014, Meriam Ibrahim was found guilty of riddah (apostasy) and zina (adultery) by the Al-Haj Yousif Criminal Court pursuant to the Sudanese Penal Code (1991), Article 126(1) which states:

Whoever propagates the renunciation of Islam or publically renounces it by explicit words or an act of definitive indication is said to have committed the offence of riddah.

Article 146 of the Penal Code states:

(1)(a) Every man, who has sexual intercourse with a woman, without there being a lawful bond between them; (b) Every woman, who permits a man to have sexual intercourse with her, without there being any lawful bond between them; shall be deemed to commit adultery.

The defence petition included, inter alia, the fact that the Al-Haj Yousif Criminal Courts’ judgement was flawed because of procedural errors and the inconsistency of the application of the crime and punishment under Article 126 and 146 of the Criminal Code with the Interim Constitution, Article 38, which states:

Every person shall have the right to the freedom of religious creed and worship, and to declare his/her religion or creed and manifest the same by way of worship, education, practice or performance of rites or ceremonies…

The Sudanese provision on freedom of religion is affirmed in the International Covenant on Civil and Political Rights (1966), Article 18(1) which states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

The Al-Haj Yousif Criminal Court found Meriam Ibrahim guilty of both the charges of apostasy and adultery. However, we argue that this decision was based upon provisions of Sharia law, as articulated in the 6th century, instead of the evolution of Islamic cultural values consistent with certain 21st century interpretations of both Islamic law (Fiqh) and international human rights law.  

Part of the modern interpretation of the Sudanese criminal justice system is that it must be placed within the human rights context mandated within the African Union. Meriam’s appeal to the African Commission on Human and Peoples’ Rights best articulates the human rights abuses that Meriam and her family experienced. The claims of the violations of the African Charter on Human and Peoples’ Rights, included, that Meriam was discriminated against because of her gender and religion under ACHPR Article 4, and that women disproportionately face the punishment of death and whipping for riddah and zina offences in violation of their human rights to dignity, privacy and equality; that the death penalty and whipping would have been a violation of the prohibition against torture and ill-treatment under Article 5; that because Meriam had to give birth to her daughter in prison, whilst shackled, and that her young son witnessed this event, and her husband had to endure these ill-treatments to his wife, that there was a violation of the right to liberty and security of the person.     

The crux of the matter was therefore the judicial interpretation of the meaning of “riddah” within the Penal Code, Article 126. In the trial court, riddah was interpreted in a strict dogmatic way, which in effect meant that Meriam Ibrahim had become an enemy of Islam. However, this principle of Islamic jurisprudence is more appropriately attached to the crime of “Baghi” (as in Surat al-Hujurat, ayah 9), in which a former Muslim becomes an enemy of Islam in a rebellion, uprising or an act of aggression. This was certainly not the case for Meriam. She only wanted to live in peace with her family.    

The Quran does not provide an inconclusive mandate that a person who converts from Islam to another religion should be killed. On the contrary, the Quran assures freedom of religion. This is apparent, for instance, in Surah Al Baqarah (Quran 2:256) which states that “there shall be no coercion in matters of faith.” Furthermore, the Quran has strictly disallowed the imposition of the death penalty except in specifically defined circumstances. One of them is where the person is guilty of murdering another person and the other is where a person is guilty of creating unrest in the country (like being involved in acts of terrorism etc.) The Quran says; “Whoever kills a person without his being guilty of murder or of creating unrest in the land, is as though he kills the whole of mankind”. (Al-Ma’idah, 5: 32).

There is much contention as to whether the instructions in the Hadith can be used to punish with death or merely act as a deterrent in cases of adultery (as in Surah Nisa, ayah 16-17; Sahih al-Bukhari, 8: 82, Hadith 814). This contention stems from the level of proof necessary before requisite punishments are administered. For adultery in Islamic law, four honest and upright members of the society have to see the sexual act at the same time before a person is found guilty. Bringing this level of proof in context with the 21st century, it is very unlikely that four so-called upright and honest people of society will witness an adulterous act at the same time. This brings us to the biggest problem. It is very difficult for states to apply adequate due process of law and a strict level of proof of evidence necessary in a capital trial before punishment is administered.

Therefore Sharia law is best applied through the lens of “repentance” rather than retribution. This is because the death penalty nullifies the possibility of repentance. The wonderful expression of peace and mercy in the Quran in Surat al-Ma’ida, ayah 34, states, “Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful,” and the Hadith affirms in Sunan Tirmidhi:

Aisha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him and give him peace) said: Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.   

Human rights law today has mandated the fundamental requirement of tolerance in our cosmopolitan world. The Sudanese law on religious practice is currently in violation of these global principles.  In order for Sudan to reflect a world that strives to uphold human dignity, women’s and children’s rights, and the freedom of religious faith and practice, the country must amend its constitution. Ultimately, this legal aspiration is required for the realisation of democracy and equal religious values and practice. This is inherent within the freedom and autonomy of Islam, as the Quran, Surah Al-Baqarah, ayah 256, states, “Let there be no compulsion in religion,” and we must always affirm "mercy" to the world, as, “In the name of Allah, the Entirely Merciful, the Especially Merciful,” Quran, Surah Al-Fatihah, ayah 1. 


Postscript: 

This blog post follows the BCU City Talks event, "Meriam Ibrahim: The Case that Gripped the World," 1 October 2014, please see: http://www.bcu.ac.uk/news-events/news/global-human-rights-issues-highlighted-at-public-debate


The Panel included:

The Rt Hon Baroness Anelay of St Johns, Minister of State at the Foreign and Commonwealth Office
Mr Mohamed Elshareef, Meriam Ibrahim's lawyer in Sudan, BCU Law School Alumnus
Mr Andrew Hall Q.C., Doughty Street Chambers, leading expert on African Law
Mr Lutz Oette, Redress, Drafter of Meriam's petition to the African Commission on Human and Peoples' Rights
Professor Jon Yorke, Birmingham City University, Member, The Foreign Secretary's Expert Panel on the Death Penalty
Panel Chair:
Mr Manjit Gill, Q.C. No 5 Chambers, Head of the International Human Rights Law Group
Emily Clarke also addressed the event about her Change.org petition for Meriam Ibrahim which received 1,092, 272 signatures, see Change.org Meriam Ibrahim Petition

Photos of the event: 





For additional resources on the Meriam Ibrahim case, please see Professor Jon Yorke's blog posts for the Oxford Human Rights Hub at: http://ohrh.law.ox.ac.uk/meriam-ibrahim-saved-from-100-lashes-and-the-death-penalty/ and http://ohrh.law.ox.ac.uk/meriam-ibrahim-is-freed-weaving-together-law-politics-and-civil-society/ 

Wednesday, 11 March 2015

Executing the Intellectually Disabled: a Stronger Prohibition

On 21 February 1978, Freddie Hall and his accomplice, kidnapped, raped and murdered a young woman, and in a separate incident, killed a sheriff’s deputy.  Hall’s siblings, teachers, and the Florida sentencing judge acknowledged that he was raised under horrific family circumstances. As a child, he was beaten between ten to fifteen times a week.

There is substantial evidence that Hall suffers from a severe intellectual disability, and it is clear that he was unable to contribute effectively to his own defence. However, this evidence was not considered enough to mitigate the capital offence. In Hall v. State, the Florida Supreme Court upheld his death sentence, holding that because his IQ was identified at 71, he was above a strict threshold of 70, as established in Cherry v. State.

Previously, the U.S. Supreme Court in Atkins v. Virginia had used diagnostic standards to formulate a three pronged test for identifying intellectual disability for capital proceedings – (a) significant subaverage intellectual functioning (established through an IQ test); (b) deficits in adaptive functioning (the inability to learn basic skills and adjust behaviour to changing circumstances); and, (c) onset of defects during the developmental period (e.g. before 18 years of age).
For the full text of this blog post for the Oxford Human Rights Hub, see: http://ohrh.law.ox.ac.uk/executing-the-intellectually-disabled-a-stronger-prohibition/

Glossip v. Gross: SCOTUS to Consider Oklahoma’s Lethal Injection Protocol

On Friday 23rd January, 2015, the US Supreme Court granted three Oklahoma death row inmates certiorari to challenge the state’s three-drug lethal injection protocol. In Baze v. Rees 553 U.S. 35 (2008), it was held that an execution protocol which provided for an initial injection of a fast-acting barbiturate (sodium thiopental), then a paralytic agent (pancuronium bromide) which stops respiration, and finally a drug to induce a cardiac arrest (potassium chloride), did not violate the US Constitution’s Eighth Amendment’s Cruel and Unusual Punishments Clause.  

For the full text of this blog post for the Oxford Human Rights Hub, see: http://ohrh.law.ox.ac.uk/glossip-v-gross-scotus-to-consider-oklahomas-lethal-injection-protocol/