GENDER ALERT: In Pursuit of Full Guardianship under the Sudan Personal Status Law

Zahra is in an ongoing legal battle to provide a safe and stable home for her two children after her ex-husband upended their lives through actions for which he was never held accountable. Her efforts are bringing her up against the long-standing Islamic traditions of “guardianship”, which vests ultimate rights and responsibility for children in the father’s / and or other male guardians in the family hand.

In 2011, Zahra managed to divorce her husband, following many years of mistreatment.  After the divorce, Zahra had several encounters with her ex-husband in which he was threatening and violent.  The legal authorities appeared unwilling to help. Sudan has no active policies or legal mechanism to address domestic violence nor does Sudan’s Personal Status Law provide a mechanism for the maintenance of the wife and child, despite Islamic traditions that emphasize maintenance as a core obligation. In 2013, Zahra’s ex-husband attempted to take Zahra’s life in front of her young daughter. In each of these cases, the police refused to press charges against Zahra’s ex-husband and treated the attacks as merely a “domestic conflict” that was not worthy of serious attention. Finally, in 2016, he lured her son and daughter away from where they were playing and took them with him without Zahra’s knowledge or consent.

Zahra’s children were missing for nearly a week. Throughout this time she made multiple efforts to seek help from authorities including the police and the family court system. These systems all failed her as she tried to get her children back. Finally, a response to a Facebook post that included pictures of her missing children helped her locate her children. She retrieved them five days after they had gone missing, throughout which she had not known if she would ever see them again.

Her ex-husband’s actions had a traumatic effect on both her and her children. Zahra herself has dealt with considerable anxiety and distress at the prospect of further abuses from her ex-husband, all the while working hard to re-establish a feeling of safety and stability in her children’s lives.

Zahara’ has decided to take action that was not traditionally known to the legal system in Sudan, as a woman Zahara decided to regain control of her life. SIHA is currently supporting Zahra in two cases that are pending before the Sudanese courts. Both these cases pertain to the issue of guardianship, an element of the Sudanese Personal Law that is based on a deeply-contested interpretation of Islamic law.

The trauma and instability caused by her husband in her children’s lives has led Zahra to seek full guardianship over her children and herself. The first case concerns the husband’s failure to provide as a guardian himself and seeks to prove that he has not provided financially for his children. The second case seeks full legal guardianship for Zahra over her two children.

Guardianship would give Zahra full and final say in her children’s lives. This would be in the best interests of her children since she has shown that she is more than capable of caring for them, and has worked hard to provide for them single-handedly in the five years since her divorce. Zahra’s case for full guardianship will be the first of its kind in Sudanese courts.

According to Article 33 of the Personal Status Law, guardians are adult men that are Muslim, of sound mind and they do, among other things, deciding upon the suitability of a potential husband, meaning that a woman can effectively be married without her consent if her guardian approves.

It is critical for Sudan to revisit the narrow and poorly drafted Sudan Personal Status Law which allows for many violations based on the ideal of Guardianship (Welayah ) Including child marriage. Many Islamic scholars and different Muslim majority countries are reconsidering the concept of Gewama leading to Welayah / Guardianship on Personal Status Law. Guardianship is associated with responsibility in Islamic traditions. Shared responsibilities at our times should allow shared guardianship and lack of responsibility should allow responsibility to be given to party responsible based on the interest of the children (Maslaha).

SIHA through its published research – Third Class Citizens: Women’s Struggle for Equal Citizenship in Sudan, reiterates that despite several attempts to reform Sudan’s Personal Status Law, this case further alludes to the concept of guardianship within the law being one of the most significant restrictions to women’s ability to control their lives and make decisions independently.

Sudan is one of four countries in the world that are not signatory to CEDAW. Although Sudan signed the protocol on the rights of women in Africa, it is yet to be ratified.

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