Africa South of the Sahara: Judicial Systerm [ID 12144]

"Until September 1983 the judicial system was divided into two sections, civil and Islamic, the latter dealing only with personal and family matters. In September 1983 President Nimeri replaced all existing laws with Islamic (Shari’a) law. Following the coup April 1985, the Shari’a courts were abolished, and it was announced that the previous system of criminal courts was to be revived. In June 1986 the Prime Minister, Sadiq al-Mahdi, reaffirmed that the Shari’a law was to be abolished. It was announced in June 1987 that a new legal code, based on a “Sudanese legal heritage”, was to be introduced. In July 1989 the military Government established special courts to investigate violations of emergency law concerning corruption. It was announced in Jun 1991 that these courts were to be incorporated in the general court administration. Islamic law was reintroduced in March 1991, but was not applied in the Southern states of Equatoria, Bahr al-Ghazal and Upper Nile.
Chief Justice: Hafez Ash-Sheikh Az-Zaki"

06.03.2007 - Source: US Department of State

Information on independence of judiciary and types of courts ("Country Report on Human Rights Practices 2006") [ID 19257]

"Although the interim constitution and the law provide for an independent judiciary, the judiciary was largely subservient to the president or the security forces, particularly in cases of crimes against the state.

A judiciary committee recommends and the president appoints the chief justice and justices of the Supreme Court. The president appoints the constitutional court's seven members. On occasion courts displayed a degree of independence. For example, appeals courts sometimes overturned decisions by lower courts on political cases, particularly decisions from public order courts. However, political interference with the courts regularly occurred.

The judicial system includes four types of courts: regular, military, special, and tribal courts. Within the regular court system, there are civil and criminal courts, appeals courts, and the Supreme Court. Military courts tried only military personnel but did not provide the same rights as civilian and criminal courts. Special courts in Darfur operated under the state of emergency to try crimes against the state; there were three such courts, one in each Darfur capital. Tribal courts functioned in rural areas to resolve disputes over land and water rights, and family matters. The Criminal Act governs criminal cases, and the Civil Transactions Act applies in most civil cases. Shari'a is applied in the north, but not in the south, under the interim constitution. However, some judges in the south reportedly continued to follow Shari'a legal procedures. The Government of Southern Sudan adopted a new penal code in October based on common law. "

Document(s): Open document

06.03.2007 - Source: US Department of State

Southern Sudan: Information on structure of judiciary ("Country Report on Human Rights Practices 2006") [ID 19258]

"In the south the Government of Southern Sudan employed a judicial system of traditional chiefs' courts, payam (district) courts, county judges, regional judges, and a court of appeals. The court system did not function in many areas due to lack of infrastructure, communications, funding, and an ineffective police force. The Government of Southern Sudan recognized traditional courts or "courts of elders," which applied customary law to most cases, including domestic matters and criminal cases. Local chiefs usually presided over traditional courts, but defendants have a right of appeal to a non-customary court, although there were no reports that this has happened in practice. Traditional courts have now been formalized and integrated into the judicial system.
"

Document(s): Open document

20.04.2006 - Source: Austrian Centre for Country of Origin and Asylum Research and Documentation

Sudanese Bar Association strictly controlled by government ("10th European Country of Origin Infomation Seminar Budapest, 1 - 2 December 2005: Final Report on Sudan") [#49770],  [ID 18918]

"After the coup, the new regime started to control the Sudanese Bar Association which formerly was quite powerful, with well educated lawyers. Today, the Bar Association is strictly controlled by the government. Legal professionals complain about rigged elections to the management. A number of courageous lawyers still do represent political cases and torture victims, but they risk harassment, arbitrary detention and torture themselves."

Document(s): Open document

08.03.2006 - Source: US Department of State

Structure of the judiciary: An Overview ("Country Report on Human Rights Practices 2005") [#46041],  [ID 12141]

"Although the constitution provides for an independent judiciary, the judiciary was largely subservient to the president or the security forces, particularly in cases of crimes against the state.

A judiciary committee recommends and the president appoints the chief justice and justices of the Supreme Court. The president appoints the Constitutional Court's seven members. On occasion courts displayed a degree of independence. For example, appeals courts overturned several decisions of lower courts in political cases, particularly decisions from public order courts. However, political interference with the courts regularly occurred.

The judicial system includes four types of courts: regular, military, special, and tribal courts. Tribal courts functioned in rural areas to resolve disputes over land and water rights, and family matters. Within the regular court system, there are civil and criminal courts, appeals courts, and the Supreme Court. Special courts in Darfur operated under the state of emergency to try crimes against the state; there were three such courts, one in each Darfur capital. The Criminal Act governs criminal cases, and the Civil Transactions Act applies in most civil cases. Shari'a is applied in the North but not by courts in the South."

Document(s): Open document

08.03.2006 - Source: US Department of State

The judicial system of the SPLM ("Country Report on Human Rights Practices 2005") [#46041],  [ID 12142]

"In the South the SPLM employed a judicial system of county magistrates, county judges, regional judges, and a court of appeals. The court system did not function in many areas due to lack of infrastructure, communications, funding, and an ineffective police force. The SPLM recognized traditional courts or "courts of elders," which usually heard domestic matters such as marriages and dowries and based their decisions on traditional and customary law. Local chiefs usually presided over traditional courts. Traditional courts were particularly active in Bahr el‑Ghazal. In rural areas outside effective SPLM control, tribal chiefs applied customary laws.

In parts of the South and the Nuba Mountains where civil authorities and institutions did not operate, there were no effective judicial procedures. According to credible reports, military units in those areas summarily tried and punished those accused of crimes, especially for offenses against civil order."

Document(s): Open document

28.02.2005 - Source: US Department of State

Judicial system in SPLM/A held areas ("Country Report on Human Rights Practices 2004") [#29477],  [ID 12143]

"Magistrates in SPLM/A held areas followed a penal code roughly based on the 1925 Penal Code. The SPLM has a judicial system of county magistrates, county judges, regional judges, and a court of appeals. While officials have been appointed for most of these positions, the court system did not function in many areas due to lack of infrastructure, communications, funding, and an effective police force. Some cases were heard at the magistrate and county levels. The SPLM recognized traditional courts or "Courts of Elders," which usually heard matters of personal affairs such as marriages and dowries, and based their decisions on traditional and customary law. Local chiefs usually presided over traditional courts. Traditional courts particularly were active in Bahr el Ghazal. In rural areas outside effective SPLM control, tribal chiefs applied customary laws."

Document(s): Open document

18.12.2002 - Source: UN Office for the Coordination of Humanitarian Affairs

Administration of justice is weak throughout the war-affected areas ("Report focused on IDP situation, security issues and return of the displaced") [#10524],  [ID 12150]

"Impunity and human rights abuses have been a widespread feature of the conflict and
have contributed to ill-will between the parties and between both parties and civilians,
including the displaced. The protection and promotion of human rights is the basis of
peace and human security. Combating impunity and ensuring that judicial systems
and civilian policing structures are in place and capable of enforcing the rule of
criminal, civil and customary law is an essential pre-requisite for human security and
respect for human rights.
The administration of justice is weak throughout the war-affected areas. In many
regions, courts have been unable or unwilling to address such violations as the
abduction of women and children, often in the context of internal displacement. For
example, in IDP camps peripheral to southern urban areas, rape, assault and other
serious crimes often go unreported for lack of police presence, fear of the perpetrators
(especially when these are combatants) or because women have little confidence in
the likelihood of remedial action being taken. Awareness of the standards spelled-out
in the Guiding Principles appears to be non-existent among both local authorities and
the IDP’s leadership. In some places, such as Bentiu, the militias undermine both the
statutory justice system and the customary law courts. Persons seeking redress have
little choice, therefore, but to turn to the militia courts that implement arbitrary and
extra-legal measures.
The foundations of justice in both GOS and SPLM areas are the customary law courts
administered by chiefs. However, in many cases, the chiefs’ courts have been
undermined by conflict, displacement, or the appointment of persons neither
representative of nor accountable to their communities. Nevertheless, the role of
community leaders is of major significance in addressing intra- and inter-community
tensions. They play a vital role in maintaining the rule of law (especially in rural
area), in holding those in authority accountable, and in resolving conflicts. Despite
the conflict, there is evidence that judgments made by the courts on one side of the
political divide are both communicated and respected on the other side. However,
customary law can be discriminatory against women and children and is not always in
harmony with human rights standards. It should, therefore, be supported with a view
of ensuring that it is brought in line with international human rights principles."

Document(s): Open document
00979sud.pdf

08.2001 - Source: UN Development Programme

Overview of judicial system ("08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program") [ID 12145]

"Table of content:
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Prosecution System
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Judicial Education"

Document(s): 08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program

08.2001 - Source: UN Development Programme

Constitutional provisions for the judiciary ("08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program") [ID 12146]

"Since independence, Sudan has experienced several dramatic political changes. After each change, a new constitutional order, with new provisions for the judiciary, was enacted. Sudan received its current constitution in 1998.

Article 99 Judicial competence in the Republic of the Sudan shall vested in an independent authority to be known as the " judiciary" to assume the judicial power in adjudication of disputes and judgments on the same in accordance with the Constitution and the law.
Article 100 The judiciary shall be responsible for the performance of its work before the president of the republic.
Article 101 (1) Judges are independent in the performance of their duties and have full judicial competence with respect to their functions; and they shall not be influenced in their judgments. (2) A judge shall be guided by the principle of the supremacy of the Constitution and the law and he shall protect this principle, giving due regard to the establishment of justice in thoroughness and impartiality without fear or favor. (3) State organs shall execute judicial judgments.
Article 102 (1) The judiciary shall have a president to be known as the "Chief Justice" who shall be the president of the Supreme Court and the Supreme Council of the Judiciary and be responsible for the administration of the judiciary before Supreme Council of the Judiciary. (2) The judiciary shall have a council to be known as the "Supreme Judicial Council." Its composition and functions shall be prescribed by law. Its functions shall include planning and general supervision over the judiciary and presenting recommendations to the president of the republic for the appointment, promotion, and termination of service of the judges, as well as the preparation of the budget of the judiciary and expressing opinion on legislative bills relating to the judiciary.
Article 103 The judicial structure shall consist of a supreme court, appeals courts and courts of first instance. The structure shall be organized by a law that specifies divisions, jurisdiction and any other matters relating to the judiciary.
Article 104 (1) The president of the republic shall appoint the chief justice and his deputies according to law. (2) The president of the republic shall appoint other judges upon the recommendation of the Supreme Judicial Council. (3) The law shall determine the terms of service, discipline and immunities of judges. (4) No judge shall be removed save under disciplinary measures and upon a recommendation from the Supreme Judicial Council.
Article 105 (1) There shall be established an independent Constitutional Court. The president of the republic shall appoint its president and members from persons of high experience in matters of justice, with the approval of the National Assembly. (2) The Constitutional Court shall be the custodian of the constitution and shall have the jurisdiction to consider and adjudicate any matter relating to the following: (a) interpreting constitutional and legal provisions submitted by the president of the republic, the National Assembly, half the number of governors or half the States' Assemblies; (b) claims by the aggrieved for the protection of freedoms, sanctities or rights guaranteed by the constitution; (c) claims of conflict of competence between federal and state organs; and (d) any other matters referred thereto by virtue of the constitution or the law. (3) The law shall determine the number, emoluments of the judges, and the procedure of the court.
Article 106 Legal counsels working in the public service and attorneys shall strive to express the values of justice, truth, legality, protection of public and private rights, tender advice and render legal services to the state and citizens, and shall perform their functions truthfully and impartially in accordance with the constitution and the law.
Article 107 (1) The profession of advocacy shall be established to express the values of justice, the righteousness and legality, fend off injustice and seek conciliation between adversaries, observe neutrality in the just proof of right, impartiality in pursuit of the truth and facilitate legal aid for the needy in accordance with the provisions of the law. (2) The law shall regulate the conditions for the practice of the profession.
Article 127 (1) There shall be established by federal or State law an Employees Justice Chamber for employees in public service, having competence to consider and determine the grievances of employees; and the law shall specify its functions and powers. The supervision and appointment of the president of the Chamber shall be by the president of the republic or the governor as the case may be. (2) Decisions of the Employees Justice Chamber shall be final, not to be reviewed by courts."

Document(s): 08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program

08.2001 - Source: UN Development Programme

Administration and Relationship with Ministry of Justice ("08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program") [ID 12147]

"Both the constitution of 1998 and the 1986 Law of the Judicial Authority require that the Supreme Judicial Council prepare the judicial budget. Much of the oversight and implementation falls to the chief justice along with the Supreme Judicial Council.

The position of chief justice is far stronger in Sudan than it is in most of the Arab world. Some of the supervisory and administrative functions shared between the Ministry of Justice and the judicial council in many Arab countries are assigned instead to the chief justice in Sudan. While this gives the judiciary more autonomy from the Ministry of Justice, the fact that the chief justice is a presidential appointment is of greater significance."

Document(s): 08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program

08.2001 - Source: UN Development Programme

Structure of court system and prosecution ("08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program") [ID 12148]

"Sudan's 1998 constitution is unusual in prescribing the various levels of courts. Like most of the Arab world, Sudan's courts of general jurisdiction have three levels. The courts of first instance are either general (`amm) or summary (juz'i). The second level consists of appeals courts (isti'naf); the Supreme Court (al-mahkama al-`ulya) stands at the apex of the order.

Personal status issues
Until 1983, Sudan had separate personal status courts. At that time, the civil court system and the personal status courts were unified. At a later date, a new code was issued for personal status law. The 1998 constitution implies a unified system, though it does not explicitly require it.

Prosecution system
Sudan has not completely adopted the niyaba system and prosecution remains an executive-branch function under the Ministry of Justice. In recent years, the minister of justice has simultaneously served as attorney general. There is a separate prosecutor general who is quasi-judicial but serves in the Ministry of Justice."

Document(s): 08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program

08.2001 - Source: UN Development Programme

Appointing/assigning/evaluation of judges; judicial training ("08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program") [ID 12149]

"According to the 1998 constitution, the chief justice and the senior judges are appointed directly by the president of the republic. Other positions fall under the Supreme Judicial Council, which consists of the chief justice, his deputies, the directors of judicial agencies, the prosecutor general, the head of the Bar Association, and the dean of the College of Law at the University of Khartoum. Sudan is unusual in including public figures who belong neither to the judiciary nor the executive branch in its judicial council. Most of the evaluation and administration of the judiciary falls to the chief justice, sometimes working with the Supreme Judicial Council.
[...]
Judicial education
Sudanese judges are expected to undergo a year of specialized judicial training and a year of practical training after receiving a law degree."

Document(s): 08.2001 - Nathan J. Brown: Arab Judicial Structures. A Study Presented To The United Nations Development Program