Constitutional Appeal in the case of Mariam Yahya

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SIHA has submitted on 23/12/2015, in line with the Constitutional Court Act from 2005, an appeal to the Constitutional Court in Sudan in the case of Abrar Alhadi (aka Mariam Yahya). The appeal was drafted based on consultations carried out by SIHA and Mariam Yahya’s legal defense team, as well as a number of activists and lawyers. The appeal was submitted within the given period of six month and is to date pending. SIHA and all contributors to this appeal are aware of similar initiatives from both Sudanese as well as international civil society members and support all efforts in petitioning the verdict against Mariam Yahya. The appeal constitutes part of SIHA’s continuous efforts on working towards legal reform and an egalitarian legal system in Sudan, without religious, ethnic or gender discriminatory laws. This appeal aims at challenging particularly Article 126 of the 1991 Criminal Act of Sudan, outlining the crime of Redah (Apostasy) which led to the sentencing of Mariam Yahya and legitimized the declaration of her marriage as illegitimate. Case Summary The Appellant was tried before the Haj Yusuf Public Criminal Court on charges of adultery and apostasy (Articles 145 and 126 of the Criminal Code (1991)) on 11/5/2014.

The trial court convicted the Appellant under Article 145 of the Criminal Code (1991) and sentenced her to the mandatory punishment of 100 lashes. It also convicted her of apostasy under Article 126 and gave her three days to repent and return to the fold of Islam. The court assigned a session on 15/5/2014 for the repentance procedure, at which session the trial court appointed a cleric from the Islamic Jurisprudential Council to carry out the repentance procedure. Since the Appellant did not return to Islam, the cleric informed the court that there was no hope she will and as such the court sentenced her to death by hanging. The Appellant did not accept the sentence and challenged it by appealing. However the decision affirmed by implication the decision of the trial court to void her marriage to her husband (the second defendant in the case), as well as including in its findings a directive for the Guardian of the Appellant to lodge a lawsuit to annul the marriage. The Appellant also did not accept this verdict and lodged an objection for cassation before the Supreme Court, which reaffirmed the decision of the Court of Appeal. Constitutional Appeal Summary This challenge is based on two main reasons firstly the trial court’s decision to convict the Appellant of adultery with her husband – who was a defendant in the same case - and the future consequences of that decision, abrogate her constitutional right to marry whom she chooses and form a family.

This aspect of the decision was confirmed by the Court of Appeal despite that court acquitted the Appellant, with the Supreme National Court confirming the decision of the Court of Appeal. Secondly the content of Article 126 of the Criminal Code (1991) contravenes the explicit provisions of the Interim Constitution of the Sudan of 2005, resulting in the abrogation of the Appellant’s constitutional right to be treated equally before the law on the one hand, and her right to freedom of belief on the other hand, thus leading the Appellant to spend eight months of her life in the Omdurman Women’s Prison sentenced to death. As such we have no other option but to object loudly against Article 126 of the Criminal Code (1991) and demand that it be found to be unconstitutional, according to the following reasoning: The international conventions to which Sudan is a signatory stipulate equality before the law of all people and forbids discrimination on the basis of religion, colour or race. These conventions are deemed to be part of the Interim Constitution of the Sudan of 2005, in accordance with Article 27(3) of that same Constitution. However, there is no cause for us to address this in detail since the principle of equality before the law is embedded in Article 31 of the Interim Constitution which states: “All persons are equal before the law and are entitled without discrimination, as to race, colour, sex, language, religious creed, political opinion, or ethnic origin, to the equal protection of the law. Article 126 of the Criminal Code (1991) not only divested the Appellant from her right to the protection of Law but also endangered her constitutional rights.

Equality before the law presupposes citizenship as the basis of rights, nevertheless, Article 126 of the Criminal Code (1991) makes conversion from Islam to any other religion, or to no religion, a crime, thus using religion as a criterion to discriminate between citizens. Article 18 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”. Article 18 of the International Covenant on Civil and Political Rights states: “1. 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. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” The UN Human Rights Commission observed in its General Comment No. 22 on the Covenant that Article 18 “necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.” In addition, Article 8 of the African Charter on Human and Peoples' Rights states that “freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The Interim Constitution of the Sudan of 2005 did not remove itself from the stipulations of these conventions, and they form an inherent part of the Constitution in accordance with Article 27(3). Article 38 clearly stipulates the freedom of belief, stating: “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, subject to requirements of law and public order; no person shall be coerced to adopt such faith, that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent.” To illustrate the contradiction between the Constitution and the international covenants on the one hand, and the Criminal Code on the other, we here quote the Article 126 in full.

The aforementioned Article states: “(1) There shall be deemed to commit the offence of apostasy, every Muslim, who propagates for renunciation of the creed of Islam or publicly declares his renouncement thereof, by an express statement, or conclusive act. (2) Whoever commits apostasy, shall be given a chance to repent, during a period to be determined by the court; where he insists upon apostasy, and not being a recent convert to Islam, he shall be punished with death. (3) The penalty provided for apostasy shall be remitted whenever the apostate recants apostasy before execution.” The Trial Court decided the illegality of the Appellant’s marriage to her husband on religious basis, thus convicting her of adultery committed with her husband, and sentenced her to 100 lashes as a mandatory punishment. The Court of Appeal later acquitted her for reasons related to her state and the balance of evidence. However, that court affirmed the decision to annul the marriage and directed implicitly that a religious lawsuit be instigated to consider the invalidity or illegality of her marriage (please refer to page 13 of the Court of Appeal decision). Despite the acquittal of the defendant, this decision will hang over her family in the future.

This decision contradicts Article 23 of the International Covenant on Civil and Political Rights, which states: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized.” It also contradicts Article 32 of the Interim Constitution of the Sudan of 2005 which stipulates: “(1) The State shall guarantee equal right of men and women to the enjoyment of all civil, political, social, cultural and economic rights, including the right to equal pay for equal work and other related benefits. (2) The State shall promote woman rights through affirmative action. (3) The State shall combat harmful customs and traditions which undermine the dignity and the status of women. (4) The State shall provide maternity and child care and medical care for pregnant women.”