By Darren Smith, Weekend Contributor
A twenty seven year old Christian woman, who is presently eight months pregnant, has been sentenced to death by hanging for apostasy and adultery. Having been born to a Muslim father, the Sudanese government contends that Meriam Yahia Ibrahim Ishag, was Muslim and that she later converted to Christianity before marrying her South Sudanese husband, a Christian. Sudanese law considers marriages between Muslims and non-Muslims to be invalid. Under Sudan’s interpretation of sharia, a Muslim woman cannot marry a non-Muslim man and any such relationship is regarded as adulterous. Thus, her pregnancy is considered to be resulting from an adulterous relationship, punishable by one hundred lashings.
Judge Abbas Mohammed Al-Khalifa sentenced Meriam to death and declared:
“We gave you three days to recant but you insist on not returning to Islam. I sentence you to be hanged,” The judge addressed her by her father’s Muslim name, Adraf Al-Hadi Mohammed Abdullah.
Ms Ishag reacted without emotion when the judge delivered the verdict at a court in the Khartoum district of Haj Yousef. Earlier in the hearing, an Islamic religious leader spoke with her in the caged dock for about 30 minutes. Then she calmly told the judge:
“I am a Christian and I never committed apostasy.”
Amnesty International said Ms Ishag was raised as an Orthodox Christian, her mother’s religion, because her Muslim father was absent.
Despite the attendance of Western officials from various embassies, and others pleading for reasonableness, no reprieve seems to have been made.
After the hearing about 50 people demonstrated against the verdict.
“No to executing Meriam,” said one of their signs while another proclaimed: “Religious rights are a constitutional right.” In a speech, one demonstrator said they would continue their protests until she is freed.
In a joint statement on Tuesday, four embassies expressed “deep concern” over her case.
“We call upon the government of Sudan to respect the right to freedom of religion, including one’s right to change one’s faith or beliefs,” the embassies of the United States, Canada, the United Kingdom and the Netherlands said in their statement. That right is included in Sudan’s 2005 interim constitution as well as in international human rights law, they said. The embassies urged Sudanese legal authorities “to approach Ms Meriam’s case with justice and compassion that is in keeping with the values of the Sudanese people”.
While Western officials have made a compelling case for this being a case of religious freedom pursuant to the Sudanese Interim Constitution, there are some troubling issues regarding allowance of Sharia Law to be considered constitutional by the courts.
The constitution does provide for several articles that could factor into the case; some in her favor and some not.
Under 32(3), Rights of Women: “The State shall combat harmful customs and traditions which undermine the dignity and the status of women.”
In this case one could argue the imposition of the state’s interpretation of Sharia Law prohibiting the right of women to enter into marriage with a person of their own choosing is unconstitutional. The Christian minority of Sudan is marginalized in their culture by the imposition of another culture’s values and traditions. This is further pronounced under the next article:
Under 47 Ethnic and Cultural Communities: “Ethnic and cultural communities shall have the right to freely enjoy and develop their particular cultures; members of such communities shall have the right to practice their beliefs, use their languages, observe their religions and raise their children within the framework of their respective cultures and customs.”
This seems to be at a fundamental conflict with the statutory Sharia Law. The argument might be that conversion, apostasy, is not a constitutionally protected expression of religion. If Meriam had both parents who were Christians the courts might not have carried out the prosecution. But it seems Merriam, as being Muslim strictly by virtue of a Muslim father, cannot under Sudanese law ever renounce this religion, even though she has later in life claimed to not have been a part of this faith.
A lesser argument can be made under the freedom of association right:
40 (1) “The right to peaceful assembly shall be guaranteed; every person shall have the right to freedom of association with others, including the right to form or join political parties, associations and trade or professional unions for the protection of his/her interests.”
It would seem the act of marriage would constitute an association for the purposes of Article 40, but how strongly this is incorporated into any common law of Sudan is not known to your author.
Despite these constitutional rights another aspect of the constitution seemingly has allowed the court to impose a death sentence which is rooted in the constitution itself. Yet there are two restrictions on the state:
Restriction on Death Penalty
36 (1) “No death penalty shall be imposed, save as retribution, hudud or punishment for extremely serious offences in accordance with the law.”
This is where the issue becomes problematic. Hudud is generally a term meaning a crime that is intrinsically illegal under Sharia Law and generally has essentially a pre-defined punishment. These include for this case Adultery and Apostasy. Hudud is considered one of the four categories of punishment in Islamic Law and is considered offenses against divinity. In a sense Merriam could be considered fortunate in that some interpretations of how the punishment might be administered make Adultery to be of a lesser offense if the convicted was not legally married to another, hence the lashings. Punishments for married persons can include stoning. But it is rather moot since her death sentence was for Apostasy.
The time frame for which the execution might be delayed due to subsection 3:
(3) “No death penalty shall be executed upon pregnant or lactating women, save after two years of lactation.”
Merriam is reportedly eight months pregnant and as such is supposedly safe from immediate execution. If she gives birth without complication she might be given a reprieve for another two years if she is allowed to nurse her child.
Yet, this is all it seems subject to how willing a Constitutional Court and a Human Rights Commission, established under the Sudan Constitution, will be to save Merriam from death or other punishment. Sudan’s reputation in the world for human rights is notorious, especially when its president Omar al-Bashir has an arrest warrant issued by the International Criminal Court for allegedly being a co-conspirator or otherwise criminally responsible for war crimes and crimes against humanity. A charge he and the Sudanese government contests.
Yet despite this one of the articles in the constitution can some hope in the future, barring a change of governance on its own accord:
Under Article 27 (3): “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 this Bill [of rights].”
This possibly could be an avenue for which the international community might have some diplomatic influence in the long term and strategic sense. If Sudan was to be enjoined into an international agreement guaranteeing the human rights it might be a possibility the government of Sudan might change its statutes out of a constitutional requirement. The human rights agreement could be made to be conditional upon accepting an endorsement from the West for economic and trade agreements.
It certainly can be hoped that with the involvement and pressure exerted by the international community and dissenters within Sudan a second round of appeal might provide a face saving way of putting this issue to rest. But what Meriam is going to endure is certainly going to be an injustice no matter what the ultimate outcome.
By Darren Smith
Sources:
Sudan Constitution via wipo.int
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
randyjet – still killing the messenger are we?
randyjet
As has been demonstrated time and again, there are some people here who are out of place since they place no value on facts, rational thinking, and cannot even use the proper words in definitions. It makes as much sense as to talk to a chair to have any dialogue with such people.
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They do not understand jurisprudence.
Paul Schulte
Nick – George Clooney is currently looking for a house in London to be near his new gf.
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What are the Kardasians doing?
And what Randy said. Agreed.
Paul,
I know you are not a stupid man, but with questions like that, one might begin to think otherwise.
You know quite well those exact words are not in the constitution, just as many other words and phrases are not there either. However, the way in which the Establishment Clause of the First Amendment to the Constitution is worded carries that exact same meaning.
Dredd the problem is not just one of jurisprudence, but of rational thought and dialogue. If we had a person here who said that since a dog has four legs, fur and a tail, a cat has the same, therefore a dog is a cat. Would there be any point to argue with such a person? They are immune to rational thought and have either no capacity for it or simply enjoy goading people into response. If they are so dumb as to put their thoughts into action and place a strange cat and dog in the same room and the blood and fur start to fly, they will blithely assert that nothing is wrong and will deny actual reality to keep their ideology. The falsity is more important than reality to them for whatever reason. Even worse, there is nothing to be gained for others since there is nothing to be learned from such exchanges. In short, it is pointless on all scores.
Chuck – rafflaw, who supposedly is an attorney, made a statement, which I asked him to back up. He cannot and you and I both know it. It is nice of you to come to his defense, but close only counts in horseshoes and hand-grenades. And actually it does not have the exact same meaning. If it did, the Founding Fathers would have written it that way.
SierraRose:
Nope. Notice that the establishment clause has two parts. Part the second says, “…or prohibiting the free exercise thereof…”
You can also factor in the Freedom of Assembly clause and you have the full meal deal, which enables one to establish a group identity for any lawful purpose, such as a church.
rafflaw – I did not ask you that. I asked you where in the Constitution did it say ‘separation of church and state’?
Chuck Stanley, you left out the most important part – it protects the free exercise of religion by individuals.
Paul,
Are you missing that I also stated the court cases that confirmed the separation of church and state?
Thanks Chuck. You beat me to it.
As has been demonstrated time and again, there are some people here who are out of place since they place no value on facts, rational thinking, and cannot even use the proper words in definitions. It makes as much sense as to talk to a chair to have any dialogue with such people.
randyjet – when you cannot kill the message, kill the messenger.
Paul must not have looked very hard.
The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.
Chuck – do you see the words ‘separation of church and state’ any where in the Constitution. I am fully aware of what the Constitution actually says.
rafflaw – you need to read my question a little closer.
Paul,
An amazing question on a legal blog. Read our Constitution and the court cases that confirm the separation of church and state.
rafflaw – would you point out that ‘separation of church and state’ part of the Consitution? I cannot seem to find it.
There was a time when someone here would have chimed in that if Christian Republicans have their way our country will be doing this stuff too. That still might be said here yet. Vegas has it even money.
There are additional issues here regarding this woman’s children, who are US citizens as is their father. These children, currently with her in jail, will not be returned to their father because he is not a Muslim. The do not recognize their marriage, thus the adultery charge for which she will be lashed 100 times as soon as she has given birth. Since the do not recognize the marriage and claim that she is Muslim, based on her dead beat father’s religion, they also claim that the children are Muslim and cannot be raised by a non Muslim. It was her father’s family, notably absent when she and here mother needed assistance after being abandoned, who were the ones who brought these charges. Will they receive the two children? Was that the point of bringing charges to begin with?
There are also possible charges pending against the husband (who’s American passport has been seized) for having encouraged apostasy. Even though this woman has been a practicing Christian since infancy -well before he ever met her.
Beyond the issues of Human Rights, concerning the wife, the US also needs to consider and strongly protest the treatment of these three American Citizens.
When I was in the USAF and stationed in Turkey, one of our enlisted men was married to a Turkish woman. He had married her when he was in Izmir which was a more pluralist city, but the woman’s family was outraged at the marriage since he was not Muslim. Fortunately, the Turkish government at the time was a secular one, so there was nothing that they could do about it legally, but her brothers made it clear they wanted to kill him. The one thing preventing that was that he had a number of guns in his home and was willing and able to use them against any nasty things they might try. Force and violence are the only things that will work against such people. It is time to apply and continue applying those remedies.
George Clooney is Mr. Sudan. Why haven’t we heard from him on this?
Nick – George Clooney is currently looking for a house in London to be near his new gf.
What Justice Holmes said. This kind of religious law is disgusting and is another example why religion and governing should not mix.
rafflaw – can you give us an example of a time when religion has not been part of governing in any English speaking country?
Paul, it’s true that kids are very resilient. But when I imagine the conditions of a prison in Sudan, I’m afraid we’re going to hear something terrible is going to happen to that child or her unborn one. I hope word gets to her that her plight matters to many people, and that it gives her hope.
Karen – you raise an interesting point about the children. According the Sharia law she is not married, so when she is executed her children will be orphans, so to speak. Are they wards of the state?
Randyjet – here here! Speak softly but carry a big stick are words to live by. No one pokes a bear for a reason.
Jamie:
“Sensationalism aside, is it ok for the ‘Christian’ US to kill innocents, but it’s wrong for ‘Muslim’ Sudan to do the same? The hypocrisy around this matter is sometimes mind numbing….”
It is a spurious argument to compare the erroneous conviction, and death sentence, of someone here in the US with the willful murder of a woman for marrying a Christian. The death penalty is imposed on very serious crimes. When an innocent man loses a court trial in such a case, it is a tragedy. It is not the definition of the crime itself that is the travesty, but the failure of the court system to protect an innocent man. In Sharia Law death penalty cases, it is the definition of the crime itself that is the travesty – in this case, claiming to be a Christian and marrying a Christian is a capital offense.
We do have several layers of courts to protect the rights of those who are given the death penalty. It appears that this woman does not have that many. And international pressure does not always work. Texas executed a Mexican murderer that Mexico wanted let go, think the Pope was involved with that, too.
I do not condemn the judge. Sharia law is sharia law. If you follow it, you follow it. I cannot condemn him for doing his job. I do condemn the country for following Sharia law.