Introduction
This article compares the attempts of two Sudanese women's groups to challenge ‘the Shar`ia rules’ that governed women's status in the Sudan during the period 1964–1985, in pursuit of gender justice. ‘Shar`ia’ is used to mean the interpretations of the main four schools that were developed by Muslim scholars during the seventh to ninth century period.1 The first group is a non-governmental organisation (NGO), the Sudanese Women's Union (the Women's Union) established in 1952, and the other is the Republican Sisters who are followers of al-fikra al-jumhouriyya (alfikra – the interpretation of Islamic norms by the late Muslim thinker, Ustadh Mahmoud Mohamed Taha), which was started by Taha himself (Ustadh Mahmoud) in 1945. While the organisational structure and approaches of the two groups differ greatly, they remain the only two groups that actively challenged the application of discriminatory versions of Shar`ia to women in the Sudan during the period 1964–85.
Both the application of various interpretations of Shar`ia and the organised women's movements started in the predominantly Muslim central Sudan. The Women's Union and the Republican Sisters were both born within and alongside male political and/or religious movements that resisted the Anglo-Egyptian colonisation. Their public activities put them at odds with the military dictatorships that reigned after independence in 1956; some of their leaders and membership suffered sham trials and periods of imprisonment. The Republican Sisters suffered the execution of their leader Ustadh Mahmoud. Both groups saw in the Personal Status Law, qanun al-ahwal al-shakhsiyya, derived from particular readings of Shar`ia, an obstacle to achieving the human rights of women. Both groups remained active among women in one way or another, despite dissolution of their organisations and persecution of their membership. Most importantly, both groups remained free of foreign funding, which was suspected of imposing conditions and weakening people's reception of funded NGOs' activism.
The different interpretations of Shar`ia that have been adopted as law have served as a vehicle of oppression of the Sudanese people, especially women, throughout the last two centuries. Such oppression is possible because religious laws are the domain of the religious establishments and have proven to be easily manipulated to avoid the jurisdiction of international conventions to which Sudan is a party, being formally obliged to repeal laws that contradict those conventions. In the words of Ann Elizabeth Mayer:
the latent tensions between Islamic and international law become, at least ostensibly, the cause of conflict – but there may be other reasons for rejecting international law. An official policy of repudiating international human rights standards in order to follow Shar`ia law may not necessarily be dictated by the religious piety of the persons who wield power, but may be a convenient pretext for denying freedoms that the government wishes to curtail for reasons of self-interest. (Mayer 1990, p. 136)
Historical Background
1 January 1956 was declared Independence Day, making the Sudan the first sub-Saharan country to gain its independence. A short-lived democratic era lasted until November 1958 when a military coup led by Ibrahim Abboud took over. No major changes in the laws were effected during this democratic period. Abboud's military regime of 1958 lasted until October 1964, when a popular uprising forced it to resign. Another democratic era was ushered in following the October 1964 uprising and lasted until May 1969, when another military coup lead by Ga'afar Nimieri overthrew the democratic government once more. Major legal changes took place in the last three years of Nimieri's dictatorship, which was ended in 1985 by a popular uprising.
The Islamisation of all laws that took place unexpectedly in September 1983 yielded what came to be known as the ‘September laws’, which ended the plural legal system. Osman (1985, p. 134) summed up the situation: ‘The conflict between Shar`ia and other rules has been resolved in favour of the former. One can safely state now that under these laws, Shar`ia rules are supreme’. Islamisation during the different eras was clearly a political move intended to exploit Muslim sentiments and minimise political opposition. It played on the passions of the Muslim majority that wanted to cement its supremacy and plant the seed for an Islamic nationalism. One of the dire results of such application was the execution of Ustadh Mahmoud Mohamed Taha.2 Yet, due to the various regimes' extremely harsh interpretation and application of the codes, Muslim Sudanese were not reluctant to revolt against those regimes, despite promises of supremacy of their religion. A popular uprising ended Nimieri's military dictatorship in April 1985. The current government, the third military coup in the country, that took over in June 1989, led by the Islamists, has taken the same path of using Shar`ia to oppress, and so far has been able to suppress resistance through various ways and means.
Women's Legal Rights
The respective constitutions (1956, 1973 and 1985) adopted during different political eras that ruled the Sudan from 1964 to 1985 stipulated equality of the sexes. However, women's rights have always been the target of a version of Shar`ia chosen by the successive governments to subordinate them. Subordination of women as a first step to domination of all social aspects is a known phenomenon during periods of stagnation or instability.3 Until 1991, when the current Personal Status Law for Muslims Act was enacted, family courts known as Shar`ia courts depended on precedents and judicial circulars issued by the Grand Qadi, who presided over Shar`ia courts.4 Accordingly, the judiciary was the legislator and adjudicator of that law. The absence of statutory law in this area had its advantages and disadvantages. The main advantage was the ease with which a rule might be changed. A circular issued by the Grand Qadi was all it took to change the law, which was mainly a law derived from precedents and interpretation of other judicial circulars. Another advantage, which was at the same time a disadvantage, was the ability of judges to select from a wide pool of scholarly opinions in the absence of a circular that ruled a certain issue. Such liberal choice may affect women's rights positively or negatively. Resistance to these laws took various shapes and strengths in the past 60 years. Women's education and their political affiliations were major factors in shaping their resistance.
A history of Resistance
The Women's Union
The Women's Union evolved out of the various women's organisations that sprang up in the 1940s when the Sudan was an Anglo-Egyptian colony. The formation of these women's associations coincided with the emergence of the nationalist movement in the Sudan, specifically the formation of the Graduates Congress, a nationalist association of graduate men who organised to call for the independence of the Sudan from the Anglo-Egyptian authority.5 Before that, women participated individually in the short-lived uprisings against the colonisers. Nafisa Ahmed Al-Amin, one of the pioneers in the Women's Union, and Ahmed Abdel Magied, an active researcher of women's issues, stated that:
[The] abortion of 1924 revolution was followed by a period of political stagnation until the formation of the Graduates Congress in 1938. Again, women were not allowed membership in the Congress because of indigenous traditions and misconceptions arising from selfish religious teachings that prohibited women's participation in public activities. In spite of these obstacles, women were able to play a relatively more active role than the one played in 1924. 1n 1938, the Congress was supported by groups of educated working women, namely teachers, nurses, and midwives. In addition to this, a few housewives also participated in women's activities. (Al-Amin and Magied 2001, p. 4)
The Women's Union was not at all reluctant to use its objective of ‘emancipation of women’ to press for political participation. In 1953, the Women's Union pressed for political rights and gained restricted rights when the right to vote was extended to educated women only (Awadalla 2003, p. 93).7 The Women's Union magazine, Sawt Al-Mara'a (Women's Voice), was a major political forum. Suad Ibrahim Ahmed tells us that ‘What was officially a women's magazine turned into one of the most effective weapons in the struggle for democracy in addition to the advocacy of women's rights’ (Ahmed 1996). Despite its obvious involvement in politics, the Women's Union continued to maintain its social and cultural face and distanced itself from political affiliation with political parties.
However, the Women's Union had a strong relationship with the Sudanese Communist Party, founded in 1946, since it was the first Sudanese party to allow women in its membership. The progressive attitude of the communists attracted educated women; that attraction did not sit well with the colonialists, who exchanged memorandums on the seriousness of this attraction (Mahmoud 2008). Many considered the Women's Union to be part of the communist party by virtue of the dual membership of some of its leaders in both entities. Yet, its leaders, especially Fatima Ahmed Ibrahim, insisted that it was independent.8 This close relationship did not hamper the recruitment of women. Homemakers in particular were attracted to the small economic enterprises introduced by the Women's Union. The political parties were not offering women membership or any services comparable to those of the Women's Union.
The closeness of educated women to the nationalist movement and, later on, the political parties caused the first split in the Women's Union. Not surprisingly, political Islam was the main divisive issue. The first fall-out happened one year after the formation of the Women's Union, when the two members affiliated with the Islamic movement sided with their parties and stood against women's political participation as advocated by the Women's Union.9 Their resignation did not bring about an organised group till October 1964, when they formed the Patriotic Women's Front, which did not meet the same success as the Women's Union (El-Affendi 1991, pp. 96–98)10. The secular leaders continued with the Women's Union activism, albeit cautiously and with restraint so as not to cause a backlash and set their work back with accusations of wanting to destroy the social fabric. The political activities of the Women's Union left its members vulnerable to harassment and jail by the consecutive military governments that ruled the Sudan after independence.
Moreover, the long dictatorial Nimieri era (1969–1985) co-opted some of the leading figures in the Women's Union to form its own official women's organisation. The state-created entity, Union of Sudanese Women (Itihad Nis'a Assudan), enjoyed state resources and support, while the Women's Union was banned and driven underground. The president of the republic handed out some of the long withheld rights, for example he appointed a number of women judges and the first woman minister, in order to overshadow the successes of the Women's Union. As discussed below, granting women's rights could be used to enhance the government's image. Such hand-outs did not bring about women's support to the official Union of Sudanese Women, despite the fact that it attracted a short-lived support of many women to the ruling regime itself. Such lack of interest in an entity created by a government that enjoyed a short-lived support of women is a clear indication that the entity was a sham. Nimieri's self-serving attempts to grant women equal rights ended in 1983 when he joined forces with the Islamists and legislated a version of Shar`ia into laws that came to be known as the ‘September laws’. Women's status as second-class citizens was expressed in the September laws. Once more, Shar`ia application dealt women's rights a serious blow. The Women's Union continued to work underground and to be more concerned with the general political situation rather than being restricted to just women's rights. Their focus – family law or Ahwal shakhsiyya – remained the same, and no changes were introduced as part of the September laws, already based on Shar`ia.
The period 1983–1985 was a time of upheaval and major breaches of legal and human rights. The iron hand of the military government came down on all civil society organisations. The struggle for women's rights took a back seat, and women joined the protests over starvation in western Sudan, the war in the South and the humiliation through the September laws. Sawt almara'a – Women's Voice – continued to address the political situation in general and the injustice that befell the Sudanese people as a result of the harsh application of Shar`ia laws and the total absence of the rule of law. Zeinab El Bakri attributes the weakness of the Women's Union to the heavy-handed oppression of the military government and the actions of the Women's Union itself. She states that the Women's Union did not increase its membership and limited its underground work to those who were affiliated with the Communist party or trusted not to work against the party. She further states that ‘the defunct military regime's restriction on political action and organisation had already forcibly removed a whole generation of women from the realm of politics’ (El Bakri 1997, p. 204).
The Republican Sisters
Ustadh Mahmoud and others constituted the Republican Party in 1945. Following a short term of imprisonment for his political activities against the colonial power, and long terms of seclusion afterwards, he started to teach and publish his new Islamic vision, the Second Message of Islam, based on finding the core of Islamic norms in the Qur'anic texts revealed in Mecca, and differentiating them from those revealed in Medina. Equality of the sexes was a major issue in the hermeneutics of Ustadh Mahmoud (see An-Na'im 1996, pp. 3–5).11
By the 1970s, the word ‘party’ was dropped, and the organisation became known as the Republican Brothers. The Republican Sisters emerged as a women's group in 1967 within the Republican Brothers movement, about three years after the October popular uprising of 1964 against the first military regime in the Sudan. The 1960s and 1970s witnessed scores of women joining alfikra, some individually, and others through male family members who joined the Republicans. The Republican Sisters were active and powerful in propagating alfikra to the extent that their presence had to be recognised. The Republican Brothers held a meeting to discuss a name change that would include women:
At one point, the group debated changing its name to reflect its female membership and the real nature of the organization. They finally decided to keep the old name because it was already well established and known to the public as a religious intellectual movement of both men and women. (Taha, p. 5)
The Republican Sisters had, and still have, the unprecedented opportunity to join the brothers in all the public religious and political activities, not as supporters, but as of right. They were not just making demands for equal rights for women, but were propagating a message that included those rights. After the October 1964 uprising, the Republican Sisters, including the daughters of Ustadh Mahmoud and those of his closest followers, travelled to attend his lectures and presentations in major cities. Ustadh Mahmoud urged the Republican Sisters to participate in the book-selling campaign and the discussion circles (arkan al-niqash) that the Republicans were famous for holding at universities and market areas. Their presence at and participation in those debate corners was a peculiar scene that was unfamiliar to the Muslim northern Sudanese people; the streets were not a space to be occupied by women's activities, whether religiously identified or not. The Brothers were afraid that the Republican Sisters would be abused; however, Ustadh Mahmoud decided that it was time for women to challenge the social attitude towards women's intellectual participation (Taha 2006). Abdelwahab El-Affendi, an Islamist, best articulated the social attitude toward women's religiosity at the time. He stated that religion was regarded
as an affair for men only. Religious observance among any but very old women was thought to interfere with the proper role and image of the woman, probably because the exigencies of religious observance were disruptive of male authority. Older women, who share and sometimes override male authority in the household, could get away with it, but for younger women the expectations were different and religiosity was derided and rejected as unbecoming. Modern Islamic activism was doubly disruptive, since it was a defiance of tradition and traditional religion simultaneously; it was a defiance that did not have the same aura of progress which Westernizing behaviour enjoyed. (El-Affendi 1991, p. 175)
The Republican Sisters were a feminine presence that took the streets of the Tri-city capital of Sudan by surprise and threatened its masculine face.12 The fear of the Second Message of Islam was doubled by having female da'iyyat (callers to the cause). Asma Taha described herself during her first experience in the public arena as being fearful and having no confidence in herself. She expressed her reluctance then to join the public activities. Yet she and the Republican Sisters found strength in the face of that social scene in the very religion that was supposed to render them unworthy of spreading its word. A spiritual and a deep religious belief aided them in shedding any reluctance to engage in debates at the debate corners or sell books on the streets; they bravely took the physical and verbal abuse on the streets and at the universities. The Republicans' da'awa (call) targeted society at large, and they worked hard at turning heads towards this new philosophy, which was not restricted to their members. These efforts yielded a group of people referred to by the Republicans as ‘friends of the Republican Thought’. This group mainly comprised people who were not interested in the theology, but greatly interested in the human rights and secular parts of it. Many people were kept from reading Republican Thought by the traditional Shar`ia scholars, who twisted the words of Ustadh Mahmoud and intimidated people by accusations of apostasy. Use of the Internet to publish alfikra and the discussion boards have been a great medium for the Republicans to propagate their ideas. Internationally renowned scholars such as Dr Abdullahi An-Na'im now have a chance to communicate women's rights as explained in alfikra to the world at large.
Ustadh Mahmoud continued to encourage the Republican Sisters' participation because of the educational value of that participation. Asma Taha stated that ‘public exposure, with all its dangers, was part of the education of the da'iyya, who needed to experience humility and self-discipline that was necessary for shaping his/her behaviour and strengthening his/her endurance and moral stances’. The verbal abuse coming mainly from Islamists and those who were influenced by the propaganda against alfikra was in the form of calling them mutlooqat, meaning promiscuous and without guardians, a clear indication that they had crossed the gender barrier and ventured into men's space.
The Brothers took a more proactive role in advancing the Republican Sisters' struggle for their rights than did the nationalists with the Women's Union, by being present at their public speeches and by selling their publications. In the years ahead, the Republican Sisters would suffer official abuse through long terms of imprisonment and humiliating interrogation by the Security Bureau as part of the campaign against the Republican Brothers that culminated in the execution of Ustadh Mahmoud in January 1985. The family of Ustadh Mahmoud would lose the only property he owned, a house in a third-class neighbourhood in Omdurman, that was a sanctuary for the Republican Sisters when the court ordered its confiscation. The house was later returned to the family after the Constitutional Court in 1986 struck out the judgment against Ustadh Mahmoud as unconstitutional.13
Attitudes of the Women's Union and the Republican Sisters Toward Shar`ia
The Women's Union grew with the nationalist movement and its philosophy was and still is a secular one. It had never claimed to have any theological basis nor claim adoption of any feminist theories or critique. It had been a place for activism to agitate for certain women's rights. As such, its campaigns to change Shar`ia rules did not venture beyond the traditional interpretations. The Women's Union members did not attempt to enter the realm of interpretation. The world of religious interpretation has not been the safest or easiest for women to enter. Religious conservatives treated women's claim to their human rights as a move by lustful women seeking to Westernise life in Muslim societies. Under such pressure that threatened the struggle for women's rights, the Women's Union tried to define women's roles in the shadow of the dominant male, and simply explored the traditional schools for rules that might ease the restrictions on women.14
The Women's Union membership saw that flexibility in religious interpretation had, generally, only been used to accommodate the needs of men, not women. Women's status as reserve workers illustrated this. Rules denying or restricting women's right to work were only stretched or changed when men deemed it necessary to keep an industry alive. In the textile factories women were given good employment terms, flexible hours and transportation with little or no objection by religious conservatives. Such inclusion of women in work outside the home aided the demands of the Women's Union for equal pay and pension, and provided them with ammunition to bar any regression or usurpation of working women's rights. The women who joined the paid workforce found a strong ally in the Women's Union, especially in supporting their rights at the workplace.
Both the Women's Union and the Republican Sisters thought that developing new scholarship regarding the interpretation of Islamic rules was a necessary step for the advancement of women. Although both groups articulated women's rights from within Islam, the Women's Union, as stated above, did not venture outside the existing interpretations of Shar`ia and sought religious legitimacy for its arguments in the existing Shar`ia institutions, be they personal status courts or opinions of traditional scholars. It did not tackle Shar`ia as a body of law, enforced by Sudanese courts, that needed to be changed in toto.
The Women's Union apparently found it safe to argue that the opinions of the major Islamic schools were equally Islamic, and that as such it was acceptable to substitute one for the other without losing religious legitimacy.15 This approach ignored the fact that the principles underlying the various traditional interpretations were the same, despite the fact that certain rules might differ. Shari'a subordinated women to men, and invoked men's guardianship and trusteeship of women. The Women's Union was, to some extent, content with the modern discourse that cited the condition of women before Islam, to support the arguments that it was not Shar`ia but traditions that restricted the rights of women. The Women's Union also sought to separate religious norms from traditional practices, sometimes to the detriment of women, as in the case of elimination of dowry – this is discussed within a religious framework, but also social practice dictates the particulars discussed below. The Women's Union put a restriction on its ‘emancipation of women’ by adopting a discourse that sought authenticity in the existing cultural and religious views.
The Republican Sisters' discourse was rooted in theological thought; they treated their claim for equality as a religious right that was well established in the Second Message of Islam. It may be argued that they were just followers of a certain ideology. However, the Republican Sisters were not just doing what the Brothers were doing. It was clear that they used their newly acquired knowledge to address immediate needs of women. In 1973 they issued a booklet under their own name titled Adwa'a ala Shari'at al-ahwal alshakhsiyya (Focus on Personal Status Shar`ia). This publication differed from other alfikra publications in that it addressed the immediate need of women to be aware of what was available at the time to ease the oppression of the applied norms.
The Republican Sisters, joined by the Brothers, were the ones who took the unprecedented step of challenging the unconstitutionality of discriminatory laws, including the Evidence Act and the Civil Procedure Act, 1983, in the Constitutional Court during Nimieri's dictatorship. Article 17 (1) and (12) of the 1973 Permanent Constitution, which guaranteed equality of all people before the law and equality of all citizens in duties, rights, and employment opportunities without discrimination on the basis of place of birth, race, colour, sex, religion or political stand, was disregarded when Shar`ia law was applied in 1983. For example, the Evidence Act of 1983 rendered the testimony of one woman inadmissible in a court of law. According to that Act, the testimony of two women would be equal to that of one man in proceedings other than trials for hudud crimes.16 The testimony of any number of women was, and still is, inadmissible in trials for hudud crimes. This was the first time in the history of the Sudan that women named their rights ‘constitutional’ and sought to declare discriminatory laws unconstitutional; however, they were hindered by a procedural rule requiring litigants to be personally aggrieved by the particular law challenged.
The Women's Union revived its activities and joined democratic life in April 1985 after the popular uprising that toppled Nimieri's Government. However, it did not engage in any constitutional cases to reclaim women's rights usurped in 1983. This was a marked difference between the Women's Union and the Republican Sisters. While the latter took legal steps to challenge women's subordination, the Women's Union preferred changing the law through political entities and means.
Alfikra clearly considered classical interpretations that yielded Shar`ia as incompatible with human rights and the rights of women. The Republican Sisters believed that a new Shar`ia developed through reinterpretation of Islamic norms in a manner consistent with equality for women was significant.17 A new interpretation that depended on the original verses of the Qur'an would not only help women seeking equal rights strictly within the Islamic tradition, but would also decrease resistance to the use of international human rights norms. International human rights standards would have a greater chance of being accepted if they reflected cultural norms (An-Na'im 1996). This new Shar`ia was to be extracted from a new interpretation of the original texts of Islam, the Qur'an and Sunna. Major amongst the ideals of the new interpretation was the equality of men and women, and Muslims and non-Muslims.18
The article will now turn to some of the issues that were tackled by the Women's Union and the Republican Sisters to illustrate their actions against certain Shar`ia-based laws that affected women's rights. These issues are marriage and divorce, traditional practices and the dress code.
Marriage and Divorce
The main sources of personal status law in the Sudan, prior to the codification of the 1991 Personal Status Law for Muslims Act, were precedents and the Judicial Circulars issued by the Grand Qadi, who presided over Shar`ia courts. Therefore, the judiciary was the legislator and adjudicator of that law. The Republican Sisters and the Women's Union did the bulk of their work before 1991. Almost all Sudanese Muslims are followers of the Maliki school, however the Turco-Egyptian rule opted to follow the Hanafi school. The main task of the Judicial Circulars was to replace some Hanafi rules with Maliki ones to fit the Sudanese traditions. The Women's Union targeted the state as the site that articulated and enforced restrictions on women's rights, and as a result it sought to change Shar`ia rules regarding marriage and divorce, through protesting about various parts of the law and demanding change by the government. Their main targets in marriage and divorce were rules governing consent and obedience.
According to Hanafi scholars a woman may contract her own marriage. Both the Maliki School and Sudanese traditions deprived women of this right. The Judicial Circulars that existed before 1960 amended this aspect of the Hanafi rules and imposed guardianship on women. The early circulars took away any power of the woman to contract her marriage. Osman (1985, p. 134) noted the interesting legal situation that the marriage contract in the Sudanese law was actually a contract between two men, the guardian and the husband, which is still the case in the Sudan.
Circular No. 35, issued on 22 March 1933, further stipulated that a wali might force his ward into marriage as long as she was under 33 years of age, except if she was divorced from a previous marriage. On 28 May 28 1960, the Women's Union was able to effect some change. The Women's Union advocacy for immediate change had been spurred on by a number of suicides by women being forced into marriage, and society and the Shar`ia courts became inclined to change the rules (ibid.). Consent of women to marriage became mandatory:
A number of important developments in the law, reflecting basic changes, occurred during this period after independence, with mounting pressure from the Sudanese Women's Union and growing public sentiment against compulsory marriage (as sanctioned in Circular No. 35): the Grand Qadi in 1960, Sheikh Mahjoub Osman, reinstituted the Hanafi legal principle that the consent of the bride-to-be is at all times an essential feature of the marriage contract, moreover the consent must be expressly stated (Hillawi and Fluehr-Loban 1983).
The Women's Union did not engage itself in a showdown with the religious establishment; it did not therefore pursue a religious discussion of the important issue of guardianship that usurped women's agency to control their lives. The Women's Union and Sudanese women in general lacked the religious and legal expertise that might allow them to engage in the interpretation of religious tenets. They relied upon the state and its religious institutions as the legitimate source of change. The Women's Union did not dwell on the religious interpretation, nor did they call for a debate on it. They considered it a matter of political will to change the law.
The Women's Union's attack on traditions that breached women's rights stopped short of lending public support to the women who sought to annul marriages to which they had not consented. Nor was there public support by the Women's Union for the few ‘adhl cases instituted by women suing their guardians who refused to marry them to the men of their choice.19 The Qur'an prohibits guardians from preventing women from marrying. The rule against ‘adhl is supposed to limit abuse of authority by the guardian, however it is not a rule that operates automatically, and a woman has to sue in order to operate the rule.
The effect of guardianship in marriage is evident in the suitability of the husband (kafa'a). According to the traditional schools of Shar`ia, a man must be of equal or higher social, economic and religious status than his future wife. Taken in a historical context, the seventh century norms that put women under total control of men had to provide such rules to prevent the abuse of women. Judging the husband's kafa'a was the guardian's prerogative, as women were not allowed to mingle publicly with men and might not know important things about men's reputation and social or financial status. Yet, this rule is still in force without any reference to its historical roots. A woman can only challenge her guardian's decision regarding kafa'a through a court case. A guardian may invoke lack of kafa'a of the husband-to-be as a defence in an ‘adhl suit instituted by his ward. Only a handful of ‘adhl cases were instituted by women challenging the refusal of their guardians to conclude their marriage contracts.
All ‘adhl cases were won by women at the Court of Appeal or Supreme Court level. Some of these cases took place when the Women's Union was active, yet there were no public campaigns by the Women's Union to challenge guardianship over women. It was worth a challenge because resort to court did not automatically grant the woman the right to marry the man of her choice; she had to prove suitability in court. Suing a guardian, who might be a father, brother or uncle, was a scandalous behaviour that many guardians feared; to avoid such a scandal, guardians chose to conclude marriage contracts of their wards, even though they did not approve of the husband, and resort to the social punishment of banishing their wards from the family. Banishment from the family had dire social consequences for women that discouraged many from protesting their guardians’ actions, and obviously discouraged the Women's Union from a serious public protest against guardianship rules. Moreover, despite the fact that the court may order the marriage of a woman against her guardian's will, the principle of guardianship remains; the woman just moves from the guardianship of the nearest kin to that of the judge: the judge will himself become the woman's guardian or appoint someone else, preferably a willing family member or distant relative, to act as the woman's guardian and conclude the marriage.
Another important issue for the Women's Union was the dowry (mahr) in the marriage contract. Mahr is paid or promised by the husband at the conclusion of the contract in return for the wife's conjugal services. It is essential for the validity of the contract. Traditionally mahr turned into an extravagant practice among all classes, especially in urban areas. Many young men were not able to comply with the requests of the brides' families. The Women's Union started to campaign against the vast amounts demanded by families and called for the least amount required for the validity of the contract. However, the Women's Union did not advocate any change of the wife's duty in consideration of her waiving her right to mahr. It also ignored the fact that the mahr, especially the deferred amount of it, served as a financial security for the wife in case of divorce. Not only that, but they pressed for its elimination without any change in the duties of the wife. Therefore, women would give up their mahr for nothing. The contractual duties of the wife would remain the same, including the duty to obey.
The intention of the Women's Union was to secure marriage for women and reduce what came to be known as the ‘marriage crisis’. The costly weddings, high mahr and illiteracy were blamed for that crisis and for a new occurrence in the social scene, namely educated men opting to marry foreign women. Sudanese men marrying non-Sudanese wives (al-zawaj bil-ajnabiyyat) was discussed by the Women's Union as an undesirable social phenomenon. In its awareness campaign for women, the Women's Union advocated the change of extravagant spending at weddings and resorted to the Islamic notion that marriage is a cordial peaceful relationship, not a sale contract of the woman. In addition, they advocated education of Sudanese girls, as it was thought that educated men were seeking educated women, and therefore education of girls would be an incentive for men to marry locally.
One issue that took precedence over all others in the rules regarding marriage and divorce was the obedience rule (ta'aa). According to some traditional interpretations of Shar`ia rules, a woman who consents to marriage should receive her mahr and all her housing, clothing and food needs from the husband. In consideration of those rights, she is obliged to fulfil her matrimonial duties. In addition, she is to stay at home to satisfy her husband's sexual needs. Since this is the only service for which she contracts, she is not under obligation to perform any household services. Imam Malik went as far as saying that if she belongs to the upper class, she may even refuse to breast-feed her children, and that it is the husband's duty to hire another woman for that purpose. If a woman disobeys her husband, according to the Qur'an an arbitration panel comprising two persons, one from the husband's and one from the wife's family, may settle differences between the spouses. The Personal Status Law ignored this Qur'anic ruling, and the courts entertained divorce petitions before implementing this rule.
A husband may petition the court to order a wife who leaves to return to the matrimonial home, but only once. If she leaves again, she may be deemed disobedient (nashiz) and relinquishes her rights as a wife. A woman may also be ruled nashiz if she refuses to return during her waiting period (idda) of three menstrual cycles after divorce.20 A marriage does not automatically end by the man pronouncing divorce; idda is said to be a ‘constructive’ marriage period. During this three-month period, the husband has the option of having his wife ‘returned’, regardless of her consent. The right to reclaim a divorced wife (raja'a) within a period of three months is exclusively a husband's, and the wife should comply.
The Sudanese Shar`ia courts adopted a rule, imported from Egypt, that allowed the use of police to forcibly return a woman to the matrimonial home, which became known as bait at-ta'a (literally the house of obedience). Despite the fact that use of police force to keep a marriage together is not part of Shar`ia, the Shar`ia judges claimed that the forcible return was applied to help women who adhered to societal decency rules and shied away from expressing desire to go with their husbands against the wishes of the parents. Yet the rule was used liberally and against all women whose husbands would sue for obedience. Consequently, women were left at the mercy of abusive husbands who had the right to confine them to the home and force them to live in failed marriages.
The Women's Union was successful in rallying both men and women against the use of police to return disobedient women. Their campaigns in 1968 resulted in having the judiciary issue a circular that repealed the forcible return of women to the matrimonial home. However the institution of bait al-ta'a and the principle of obedience remains to this date, and Shar`ia courts continue to issue judgments of obedience, but do not use police force to execute the judgment. Perhaps content with this success of eliminating use of police force, the Women's Union did not fully address the principle underlying the issues of obedience, guardianship, payment of mahr and their effect on the ‘emancipation of women’. Consequently, issues such as the husband's right to bring about his wife's obedience through beating remained a thorny issue, circumvented only by the traditional practice that ostracised wife-beaters, or was explained away by the muftis who set up rules for how a beating should be done. Zeinab El-Bakri noted that the Women's Union ‘saw the family as the most important institution in society. That it was also a focus of women's oppression was ignored’ (El Bakri 1997).
The Republican Sisters took a different path in resisting the prevailing Shar`ia rules of marriage. They started from the premise that the family was the site for women's subordination, and that it was the disdainful social attitude towards women's biological and familial roles that subordinated them when they ventured outside the home. Therefore, unless women enjoyed equality and respect for their gender roles, there was little hope that they would be respected in the public sphere.
The Republican Brothers issued their first publication, Tatweer Shar`iat al-Ahwal al-shakhsiyya (Advancement of Personal Status Law) in 1971. It was based on the exegesis of the Second Message of Islam. The introduction to the Second Message of Islam explains that:
The Second Message of Islam lifts women to an equal status with men in all fields. But the field in which the effect of this advancement of women is paramount is the field of marriage laws. Here the Second Message of Islam redefines marriage, on the legal plane, as a contact between two equal partners, entered upon by their own free will, with equal rights for both partners for equivalent duties, and dissolved, should the need arise, by agreement between them. Spelled out, this means that there is no longer any guardian who signs the marriage contract on behalf of the bride. Instead, the bride signs for herself. Also the right of divorce will be equally shared by the couple and can be used by either in a specified manner which involves the mediation of two arbiters, one representing the husband and the other representing the wife. In this way any effort to shore up the marriage relation about to break will not be spared, and at the same time the private affairs of the couple will not be disclosed before a large audience which is not the case now when divorce takes place before a court. (The Republican Brothers 1976)
The group's practice in relation to contracting marriage is illustrative of the members' determination to implement their theory in light of prevailing social customs. Besides submitting to the most restrictive historical formulation, Shar`ia, the marriage practices of the northern and central Sudan conformed to several restrictive legal and social norms. (An-Na'im 1996 , p. 6)
While voicing their opinion that another message was found in the Qur'an that should replace the existing non-egalitarian first message, the Republican Sisters did not wait for the state to issue new rules. Their most clever move was how they delved into the existing personal status law to render rules of guardianship and obedience obsolete. (the Republican Sisters 1973, pp. 1–12)
Second, they revived an old rule in Shar`ia and Sudanese law that had fallen into disuse because women were either discouraged from using it or did not know about it, namely tafweed. Tafweed is a condition in the marriage contract that delegates to the wife the right to divorce herself from the husband, without, of course, affecting the right of the husband to divorce his wife. In all interpretations, divorce or talaq is a fundamental right of the husband. Tafweed is a delegation of that right to the wife to divorce herself from the husband incorporated as a condition of the marriage contract. The Republican Sisters not only insisted on having a tafweed, but they turned it into a basic right for women by having it as a mandatory condition in the marriage contract. As such it became the men's problem to avoid tafweed and gave women leverage in strengthening their position in the family and with husbands. The Republican Sisters who were already married when they joined the Republican Brothers insisted on amending their existing contracts by writing a tafweed condition into them.21 Tafweed rendered the whole principle of obedience unnecessary, as a woman might negotiate her way out of ta'a institution by owning the right to divorce herself. In fact, tafweed brought a sense of equality into the matrimonial home. However, divorce was rare among the Republicans, as the Republican Sisters proved to be more interested in working out differences than resorting to the use of tafweed to break up the marriage.
Third, the tafweed condition was coupled with another forgotten rule, arbitration (tahkim). The Qur'an expressly ordered arbitration between the couple before divorce (Qur'an 4:35). According to the law, a husband may divorce his wife at will any time, for any reason, or for that matter for no reason. In addition, the law did not mandate arbitration before a woman resorted to court. The Republican Brothers wanted the law to make arbitration mandatory before a man could divorce his wife. Implementation of this rule aimed to put an end to the long bitter court disputes that were known to leave women in limbo for a number of years. It would also restrict the husband's unfettered right to divorce his wife. At least the marriage would have a chance of survival when the arbiters intervened. The right to divorce at will would be eliminated by the mediation process of the arbiters. Tafweed and arbitration would actually strengthen the family by bringing some equality into the institution of marriage.
Fourth, they kept the principle of mahr in the marriage contract, as did the Women's Union. However, unlike the Women's Union, they argued that reduction of mahr should be translated into ‘dignity for women’ (the Republican Sisters 1971, p. 4). The Republican Sisters saw the reduction of mahr as a step in an evolution that would remove it as a valid condition in the marriage contract, while tafweed became a basic right in it. The Women's Union did not suggest a legal change to compensate women for their mahr waiver. The Republican Sisters foresaw a total disappearance of consideration moving from any party in the marriage except for the commitment to one another.
Conclusion
Sudanese women have been actively pursuing their rights under all types of political situations. The Republican Sisters and the Women's Union suffered governmental persecution and social opposition because they called for change in Shar`ia rules. The Women's Union succeeded in rallying women around certain issues and voiced feminist stands. However, the word ‘feminism' is still a negative word among the Women's Union leadership, yet the way they pursued women's rights in the Sudan was typical of what Obioma Nnaemeka termed ‘nego-feminism’. Nnaemeka defined this old wave of feminism that has been in existence for centuries in Africa as follows:
First, nego-feminism is the feminism of negotiation; second, nego-feminism stands for ‘no ego’ feminism. In the foundation of shared values in many African cultures are the principles of negotiation, give and take, compromise, and balance. Here, negotiation has the double meaning of ‘give and take/exchange’ and ‘cope with successfully/go around’. African feminism (or feminism as I have seen it practised in Africa) challenges through negotiations and compromise. It knows when, where, and how to detonate patriarchal land mines; it also knows when, where, and how to go around patriarchal land mines. In other words, it knows when, where, and how to negotiate with or negotiate around patriarchy in different contexts. (Nnaemeka 2003, pp. 358–385)
The Republican Sisters tackled Shar`ia rules from a well-defined theological base that had its own Islamic arguments, and was not seeking the approval of any school of jurisprudence. They chose a framework of human rights. They started from the premise that Islam had recognised women as human beings of full capacity, and that their rights should be recognised accordingly. Therefore, a mere facelift of the existing Shar`ia that consists of norms that governed people's lives in the seventh and eighth centuries was incapable of securing women's rights in the long run. Their approach was simple, albeit based on a complicated philosophy, as they insisted on removing guardianship of women and of non-Muslim men. They asserted that no arguments could be made for emancipation while women remained wards of men throughout their lives. A person worthy of his/her rights had to be free from the authority of others that rendered him/her a minor incapable of making decisions.
The Republican Sisters practised nego-feminism too when they argued rights according to the Constitution. They were aided by a cardinal rule in alfikra, which was how to balance two apparently contradictory stands. One of these was to apply a carefully measured dose of change so as not to cause total rejection of an idea, similar to the Women Union's tactic; another was not to make religion mirror societal restrictions. They understood that religion did not mirror society, and that new interpretations had always in one way or another upset the established patriarchal cultural norms. Despite this, when they demanded constitutional equality, their arguments were branded un-Islamic.
The Republican Sisters thought that the state had a stake in the subordination of women; they therefore pursued a strategy that would limit the state's intervention in the family. They thought that the principle of equality of the spouses should be enlisted to eliminate the state's ability to legislate laws that favoured men over women. Accordingly, they always coupled their theological thought with practical measures such as the initiation of lawsuits and public opposition based on their understanding of Islam. The latter mode of opposition ended with the execution of Ustadh Mahmoud in 1985, when he rallied the people to oppose Nimieri's Shar`ia laws.
While the Women's Union negotiated women's way out of restrictive traditions, which were applied as religion, they mostly stayed within the parameters of the old patriarchal discourse while trying to temper it; the Republican Sisters refuted and rejected the traditional Muslims' use of Shar`ia to maintain guardianship over women's rights. The Islamists set Muslim women apart from other women in the rest of the world and warned them against ‘Westernisation’. For that purpose, the Islamists assigned themselves the role of leadership.
Islamists must lead the renaissance of women from the swamps of traditionalism and deliver them from the hands of Westernised misguided groups who would love to exploit their predicament. After all, religion requires them to give guidance to humanity and save people from inherited deviations and novel aberrations. (El-Affendi, 1991, p. 175)
Both the Women's Union and the Republican Sisters are now banned in the Sudan. Some of their members have established a presence in the new women's organisations scattered around the world, contributing to public debates and supporting activism inside the Sudan. Those who survived the political situation and remained in the Sudan continue their organised intervention and make use of the Internet as a medium to join forces with their counterparts outside the country. The legacy of both the Union and the Sisters is the important scholarship, such as writing the history of the women's movement in the Sudan and the reports about women's rights and comments on existing laws. Producing such writings is not new, but using all mediums to publish these writing is more active than ever.
However, the new generations of women are reluctant to join the Women's Union ranks. Fatima Babiker attributed their reluctance to the insistence of the Women's Union on keeping an old, rigid constitution. At least two of the first leaders of the Women's Union are now involved in feminist and gender studies at some universities. Ahfad University for Women has recently established a women's studies department. Some of the ‘old guard’, the initiators of the Women's Union, Nafisa Ahmed Al-Amin and Hajja Kashif, are part of the department.
The Republican Sisters stopped their public campaigns in 1985 after the execution of Ustadh Mahmoud, however all the Republican men and women continue to conduct their marriages and divorces as they did before. Their movement is witnessing a slow revival using the small margin of liberty allowed in the country. They are also participating in conferences and panels held inside Sudan and abroad. The annual commemoration of 18 January has been an opportunity for the Sisters to speak at universities and other institutions about their belief in women's human rights and the possibility of achieving these rights from within Islam. The recent Internet discussion boards initiated by Sudanese abroad are giving unprecedented attention to debating the religious discourse of alfikra.
The Women's Union and the Republican Sisters continue to be an important source of inspiration for Sudanese women. In their different ways, they mobilised for a reinterpreted Islam. The secular background of the Women's Union did not blind it to the importance of religion in women's lives. Their resistance employed what they saw as emancipation in Shar`ia to tackle patriarchal injustices, especially as perpetrated by the state. The Republican Sisters adopted alfikra with all its ideas in order to depart from Shar`ia to build an egalitarian future for women. They also dug into Shar`ia to find rules ignored by the state and the Islamist scholars, in order to aid women in their present daily life. The two groups achieved different degrees of success.