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:

Raidió Teilifís Éireann

Sudan Constitution via wipo.int

Congressional Research Service–International Criminal Court Cases in Africa: Status in Policy Issues July 22, 2011

Wikipedia “Hudud”

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