Kidnapped in The Name of The Law
By Reem Gaafar
Note: The names in this article have been changed to protect the identity of the victims and their children, especially in cases of on-going custody trials.
After a short-lived and turbulent marriage, Fadwa and her husband divorced and she returned to her family home with her 2-year-old son. One day, her ex-husband showed up with a cannula stuck in his hand, asking if he could see his son before he traveled to seek treatment for a severe illness. The son was brought out, and the family stepped inside to make him some juice. When they came out again, father and son had disappeared.
It took Fadwa 2 whole months to get a court order to return her son, by which time the father had fled the country with him to Egypt, and from there to China, then back to Egypt again. Fadwa and her elderly parents – armed with an Interpol arrest warrant obtained with equal difficulty – followed them to Egypt where they stayed for almost 3 months, searching in cafes and restaurants, random crowds of Sudanese expatriates, in kindergartens and metro stations, until her father fell sick and bedridden and she and her mother continued to search until their feet were blistered. One day they walked smack into them as they were leaving a money exchange merely days before they were to board a plane to the Netherlands and disappear forever.
Fadwa’s appearance had changed so much from the stress and anguish, and her son was in such a poor state of mind from the shock of separation and constant moving, that he didn’t even recognize his own mother.
Background To The Law
The Personal Status Law for Muslims, also named the Sudanese Family Law, was updated in 1991, 2 years after the coup d’état that brought the Muslim Brotherhood into power in 1989. Al-Naga and Tonnessen (2018) write that the law “played a particularly important role in the Islamisation process led by the Islamist regime. The law’s codification in 1991 is significant because it marks the transition of family law from the religious to the political field.” While the post-1983 reforms of the Nimeiri regime had played the initial role of extended it into civil courts, it was the Islamist regime that “embarked on a wholesale Islamization of the entire legal code,” (Fleuhr-Lobann, 1993 cited in An-Na’im, A., 2002).
The law discusses marriage, maintenance, divorce, custody and inheritance. It mainly draws upon Islamic Shari’a law but is also strongly influenced by patriarchic Sudanese customs and norms that treat women as inferior to men. There are several controversial sections in the law, such as section 40, where a person is deemed fit for marriage from the age of ‘maturity’, set at 10 years old, and sections 91 and 92 stating that a wife shall always obey her husband, and if she refuses her right to be provided with a living ceases to be valid.
The notorious Section 119 (a) is one example of how this law has been and continues to be a cause of much misery and grief to countless women: a mother who is the legal custodian of her children is not allowed to travel with them without their father’s, or one of his relatives, explicit and signed permission. The section that follows states that the father who does not have legal custody is also not allowed to travel with the children without the mother’s permission. However, the Sudanese Immigration and Passports Law overrides this section and gives open permission to men to travel with their children without their mother’s consent or even her knowledge – essentially kidnapping them in the name of the law.
Not only are mothers not allowed to travel with their children, they are also not allowed to obtain any kind of identification papers for them: no passport, national number, not even a birth certificate. This has been a direct cause of children not being enrolled in schools because their fathers simply refuse to give permission to obtain the necessary documentation.
A ‘Family’ Law that Protects Only Men’s Interests
In addition to suffering from her husband’s family’s open racism towards herself and her mother, Salwa has had to rely on her own family to sustain her and her children while being trapped in a marriage to a man who refuses to carry any kind of financial responsibility, because divorcing meant that he would easily be granted custody of her children. When she accepted a job offer abroad, she was surprised that her sister-in-law, who had never even seen her children, had banned them from travel with one simple phone-call on behalf of her brother.
Similarly, Fatin has been struggling to support herself and her 14-year-old daughter whose father lives comfortably abroad because the pennies he sends each month are not enough to buy a packet of biscuits a day for his daughter, let alone proper sustenance, school fees and hygiene necessities for a teenage girl. With her doctoral degree, she has received many job opportunities abroad but he still adamantly refuses to give any permission for his daughter to travel anywhere with her, so she and her daughter remain trapped in poverty. Salwa and Fatin’s stories are a mere drop in an ocean, as the law is very clear about the rights a father has in imprisoning his children and their mother, but very vague about his financial responsibilities towards them.
Abandoned by Her Country
Even holding a foreign passport, or when the child’s father is not Sudanese, does not protect mothers trying to hold onto their children. Families visiting Sudan may easily be trapped in the country if the officer sitting behind the desk decides that their Sudanese roots give plausible reason to necessitate the father’s permission for travel.
Leila, a UK citizen by birth, has been in the midst of a custody battle for 8 years. Her sons – also UK citizens – were abducted by their father during one of his appointed visits, and moved to another country, where they have been raised by his family and are banned from any kind of contact with her. When she rushed to the UK embassy in Sudan and later seeked representation from one of the biggest law firms in the UK, she was turned away with the excuse that since the children had been living outside the country for more than 18 months, they were not considered habitual residents of UK and so they fall under Sudanese Jurisdiction. She could only bring them to UK with a court order of travel from Sudan otherwise this would be considered Child Abduction under The Hague Convention. The country simply washed its hands from her and her children.
Sudanese women – similar to those in many North African countries – have been fighting this law for decades through protesting, organized and unorganized activism, legal reviews and evidence-based recommendations for reforms, and an alternative family law was even launched in 2009 by the Sudan Organization for Research and Development. But all to no avail.
Tahani Abbas, a member of the No To Women’s Oppression initiative that monitors women’s human rights violations and provides voluntary legal aid to women, says that the movement was initially formed to combat the notorious Public Order Act, but that they discovered how equally if not more damaging the Personal Status Law was to women.
“The solid wall that we face is society itself – both women and men – because they think that we want to remove this law in order to run wild do what we like. And there is also the issue of religion.”
As the law is based on Sharia it is considered untouchable; therefore, reforms to the law have largely met resistance from religious conservatives. Employing Islamic arguments becomes almost inevitable in contexts where family law is codified as religious law (Al-Nagar and Tonnessen, 2018). Wafa, a lawyer and divorcee herself, says that it has nothing to do with how educated or strong a woman is. “No matter how strong willed you are, this law will clip your wings.”
The International Women’s Day March
On the 8th of March – International Women’s Day – Sudanese women all over the world will march yet again to demand their rights and denounce the tyranny of the Sudanese Personal Status Law. Mothers, activists, victims and women who have had enough have launched the campaign ‘Be Strong’, which demands amendments to the unjust and pre-historic sections in the law that curtail their natural maternal rights for a dignified life with their own children. It is ridiculous that the person who carried, gave birth to, fed, bathed, stayed up all night with, toilet trained and taught, would end up at the mercy of others who hold no responsibility on their end. That an extension of her own body and soul would be callously ripped away in an act protected at the highest level.
The advice going around now for young women entering marriage is not to ask about a man’s job or family, but how that man treats his enemies, because if the worst happens and separation ensues, she as a mother to his children will become not only his enemy, but an enemy of the entire society to be treated without mercy, and all in the name of the law.
Al-Nagar, S and Tonnesen, L, (2018). Family law reform in Sudan: A never ending story? Bergen: Chr. Michelsen Institute (CMI Brief no. 2018:08) 6 p.
Al-Naim, A., (2002). Islamic Family Law in A Changing World: A Global Resource Book. Zed Books, New York. Editorial copyright: Law and Religious Program, Emory University. ISBN 1842770934, 9781842770931