Introduction
Three years in Sudan was stage I of my apprenticeship as an academic lawyer. This period involved several firsts for me: first full-time job; first (and second) child; first experience of Arab culture and Islam; first teaching of students from another culture and another educational tradition; first haboob (dust storm); first locust storms; first experience of a judiciary at close hand; many political firsts: a newly independent country, student politics and my first revolution. That my attention was largely focused on coping during the first year is hardly surprising; during my second year I was mostly concerned with fatherhood, teaching and editing law reports; by the third year I was unsettled, but could speak to newcomers as confidently about the local scene as any ill-informed expatriate – indeed better than some. I came away with a few anecdotes and flashes of insight. Only in retrospect did I grasp the full extent of my incomprehension.
Sudan achieved Independence on 1 January 1956. I went to Khartoum in September 1958, having spent the summer in Dublin and London preparing lectures. Penelope joined me in November, on the eve of General Abboud’s bloodless coup; we left Sudan in September 1961. I have told the personal aspects of the story of our time in Khartoum at length in a private memoir. Here I shall focus mainly on what I learned professionally. The account is episodic because the experiences were bewildering, my memory is fragmented and the written sources, including an occasional diary, are quite limited.
Context
Over time I got to know greater Khartoum quite well. ‘The three towns’, divided by the White and Blue Niles, were quite distinctive: Omdurman, the Arab city; Khartoum North, the industrial area; and Old Khartoum, the imperial and commercial centre, containing the Presidential Palace, Government buildings, the Grand Hotel, and the University which had recently evolved from Gordon College. In the 1950s the desert (sometimes inaccurately described as tundra) came right up to the edges of all three towns; today a massive suburban expansion and refugee camps surround the conurbation for miles. The Faculty of Law had evolved from a course run by the Legal Secretary in 1934 and repeated in 1938. This resulted in the first generation of Sudanese lawyers, including the Chief Justice, several High Court judges and ministers and some leading politicians.
The Faculty had started teaching for the London External LLB (a four-year degree) in 1946. In 1958 it was quite small, the staff consisting of four expatriates, four Sudanese and two Egyptians (teaching Islamic Law – Shari’a). The expatriates comprised Elcana Tenenbaum, the Dean, a British citizen of Hungarian origin; Patrick Atiyah, who had been brought up in Khartoum by a Scottish mother and a Lebanese father; C. d’Olivier Farran, who had recently arrived, a good scholar of international law, affected by polio; and myself. There were two Egyptian teachers of Shari’a who spoke almost no English. Two of the Sudanese colleagues were abroad on postgraduate studies, but two were there: Karamalla Awad, a senior civil servant seconded to run a Diploma in Public Administration – very pleasant and helpful in explaining things; and Hasan al-Turabi – on whom more below.
In the late 1950s there were two university law schools in Khartoum. The University of Khartoum, the more prestigious, taught largely English Law in English; the University of Cairo in Omdurman taught mainly Egyptian Law in Arabic. Broadly speaking, the University of Khartoum was the favoured choice for better students and they tended to get the best jobs on graduation. First choice for most was the judiciary, second the Ministry of Justice, with private practice a poor third, at least at the start of one’s career. The outcome was that nearly all of the judges were common law trained, as were half of the Ministry of Justice, whereas the other half of the Ministry’s intake and the bulk of the bar were brought up in the civil law tradition. The major exception to this pattern was that a few leading advocates (including some leading politicians – such as Mohamed Ahmed Mahgoub, a former Foreign Minister and future Prime Minister) had moved into private practice after a period in the public service. One Attorney-General told me that it was easy to tell a recent Khartoum graduate from a Cairo graduate: when given a problem the former would go to the library; the latter would sit down with a blank sheet of paper and start writing. Since basic legal education is an important part of the intellectual capital of lawyers, the common lawyers tended to favour the retention of the common law; the civil lawyers supported a switch to Egyptian law, especially the Civil Code, based on the Code Napoléon. While I was there the senior members of the legal establishment were almost all common law trained. Matters were complicated by a sharp division between pro- and anti-Egyptian factions. Thus, Judge Babiker Awadalla (later Chief Justice and Prime Minister) was pro-Egyptian and the leader of the movement to switch to Egyptian law, even though he was common law trained.
People
In Sudanese culture, both North and South, personal relations are of supreme importance. My most vivid memories are of friendships and close relations with Sudanese and expatriate colleagues, my students, several judges, Mohamed Omer Beshir, the Secretary/Registrar of the University,1 diplomats and our cook-suffragi, Abdullah Mohamed Abdullah, who ruled our household. Let me start with a few individuals.
Elcana Tenenbaum, the Dean, and Patrick Atiyah were my closest colleagues. Both they and their families were very supportive. Both spoke quite good Arabic, which – alas – I failed to master. Patrick became my main mentor. Since he features later in this story, it is relevant to say something of his background. His father, Edward Atiyah (1903–64) of Lebanese origin spent most of his career in the Sudan, first as a schoolmaster, later in the politically ambiguous role of liaison between the Sudanese intelligentsia and the liberal wing of the Condominium administration. Later, he was Secretary of the Arab League and a prolific writer. He was married to a Scot and wrote a semi-autobiographical novel about a mixed marriage in Sudan in the 1930s and 1940s2 which I consider to be his best book, although he is better known for The Arabs (1958). Three of the four children of the marriage grew up in Khartoum. Selma, the eldest, emigrated to California. Michael and Patrick were sent to boarding school (Victoria College) in Egypt on Sudan Government scholarships with the understanding that they would return to the Sudan to work for a period. Michael was a brilliant mathematician. Since mathematics did not flourish in Khartoum, he was not required to work in the Sudan, but Patrick, who obtained a Double First in Law in Oxford, returned to serve his time, before going on to a distinguished career first as a civil servant, but for the most part as an academic lawyer.
The Atiyahs were our neighbours. After finishing teaching about 1.00 or 2.00 p.m., we often went round to cool off in their ‘swimming pool’, which was about 10ft x 4ft x 3ft, but cooool. Patrick had already published the first edition of his book on Sale of Goods and was writing an introduction to Contract.3 He was frustrated. He splashed. He wanted to know how businessmen and other actors actually used the Law of Contract. Splash. ‘How can I write about sales or contracts in this benighted place?’ Splash! ‘How can I know whether businessmen take consideration seriously if I can’t ask them? I want to know how the law actually works’ … Splash. He was already moving from being a conventional, but brilliant, doctrinal scholar to becoming a committed and quite radical contextualist or realist. For two years Patrick played an important role in my intellectual development. Later he contributed the first book to the Law in Context series, a radical alternative to Salmond (Chapter 12) and after that I recruited him to Warwick, where he nearly completed his magnum opus on the history of Contract before moving on to the Chair of English Law at Oxford.4
Two students were my main guides to local cultures and remained lifelong friends.
Francis Mading Deng was in his second year in 1957–8, one of only four or five Southern Law students. He was one of the favoured sons of Deng Majok, the well-known Paramount Chief of the Ngork Dinka of Kordofan, the only Nilotic people to live in Northern Sudan. Francis was quite short for a Dinka, only about 6 foot, but he was recognizably Nilotic and, without putting on airs, had a dignified, aristocratic bearing. He spoke very good English and Arabic and, in some respects, became a leader of the whole class, not just the few Southerners; for example, leading an expedition to Germany during one long vacation. Oliver Farran and I encouraged him to gather information about Dinka custom and this turned out to be the start of his life-long involvement with writing about Dinka culture. In 1965, in New Haven, I helped to record his memories of his childhood and education from his father’s compound through village, primary and secondary school to universities in Khartoum, London and Yale. This became an intimate memoir, the publication of which awaits his retirement from public life. Francis later followed a very distinguished academic, political and diplomatic career as well as publishing about forty books. After sixty years we are still close friends.5
Zaki Mustafa was slightly older than me. He looked much older. He was married with one child and generally seemed more mature than other law students. He was solidly built, fairly light-skinned, with a moustache. He graduated top of his class in 1959 and went on to postgraduate work in London (LLM, LSE 1961; PhD 1969). His style was laconic, with a wry sense of humour. He shrugged his shoulders more than anyone I have known – Insha’Allah (it is the will of God – this is how it is). Even as a student, he had an air of authority. In his photographs he looks resigned and withdrawn. Perhaps because he was often an informal spokesman for and interpreter of the students, we saw a lot of each other and became good friends. I went to stay with his family in Wadi Halfa one vacation.6 He was the author of the best book on Common Law in the Sudan. In time he became Dean of the Law Faculty, later Dean of Law at Ahmadu Bello in Nigeria, Attorney-General of Sudan and, towards the end of his life, a partner and manager of the law firm of Sheikh Ahmed Zaki Yamani the oil magnate – my first former student to become a millionaire. Zaki died in 2003. These two were my main guides to Southern and Northern Sudanese cultures.
Hasan al-Turabi, after completing his doctorate in Paris, returned to Khartoum where he soon earned a reputation as a scholar of shari’a and a potential leader.7 He involved himself in politics and, after participating in the 1964 Revolution, became leader of the Muslim Brothers. Thereafter, he exerted enormous influence on the Islamisation of the Sudan. As a jurist he argued for a flexible interpretation of Islam, claiming to be a liberal Muslim professing to support the rights of women, democracy and religious freedom for non-Muslims. His political career is bewildering in the number of shifts in alliances, his critics maintaining that he was an opportunist who pursued a fundamentalist line in practice, with scant regard for human rights or genuine democracy.8 He served with the Nimeiry regime and then fell out of favour, and this was repeated under other regimes. From 1999 onwards, he was imprisoned several times, becoming Attorney-General and a minister in between. I only met him once after leaving the Sudan. That was in 1991 when as Attorney-General he gave me an audience, which was entirely formal. He firmly told Penelope that she could not meet his wife, a former law student whom we had got to know quite well. Turabi was associated with Omer bin Laden, during his ten years in Khartoum, and this has affected his image in the Western press, who tend to portray him as a Machiavellian eminence grise and an extreme fundamentalist (‘the Robespierre of the Sudan’). My sense is that he is a more complex phenomenon, a principled but not extreme Muslim, very pragmatic and very clever. I have watched his career from afar with bemusement. Naturally, none of us foresaw the complexities of his political career, but my original impression of him as very intelligent, subtle, devious and pragmatic still holds good.9
Taking teaching seriously
The hierarchy of reasons that I gave for my choice of career was: (1) Africa, (2) Education, (3) Law. Over time that order got reversed. Even in Khartoum I showed occasional signs that my professional interest in (1) was tailing off; later, in 1961–5, I switched my scholarly attention from customary and received law to Llewellyn and, over time, through teaching and involvement in outside legal activities, I became genuinely interested in Law as a subject of study and evolved into a self-proclaimed ‘legal nationalist’ or evangelist for its great potential as a humanistic discipline which is inevitably involved with ‘real life’ problems (Preface). However, my interest in education, especially higher education, never wavered.
I read quite a lot about education generally, especially higher education and pedagogy. I was particularly influenced by Gilbert Highet’s The Art of Teaching (1950).10 Highet is now seen as the apotheosis of the gentleman amateur and is criticised, sometimes justifiably, by those who espouse a bureaucratic rationalist approach to pedagogy. I found it very helpful as a start. In those days there was no formal instruction in educational theory or pedagogy for young academics and although internal divisions within Anglo-American academic law were a constant focus of attention, debates and writings of the time owed almost nothing to a wider educational literature. One self-educated and picked bits up as one went along, which mainly meant imitating one’s elders, who generally wanted to replicate their own legal education. As I later wrote in my first reflective paper on legal education: ‘The urge to reproduce one’s kind is not limited to the sexual instinct.’11
One of Highet’s messages was that you should treat your students as individuals and get to know them. I did not follow his particular method, which involved classifying them into body types and temperaments. I soon became aware of the barriers that our students had to overcome: they were studying mainly foreign, indeed imposed, law in a foreign language out of its social context, taught mainly by foreigners. They were very highly selected and had been taught in English in the last two years of secondary school, but they had not escaped very far from Middle Eastern and Islamic traditions of rote learning. Their teachers were well-qualified, perhaps too well-qualified. They upheld the notional ‘standards’ of the London degree and during my time in Khartoum only one student was awarded an Upper Second. The students’ career expectations were uncertain, for by now there was competition among graduates, but there was hardly a culture of hard work or independent study, and the political atmosphere was volatile. Some of my colleagues, not only in Law, spoke disparagingly of their students – lazy, with a poor command of English, only wanting dictated lecture notes – indeed there was a thriving market for the latter. I did not accept this opinion, especially of the better students, who seemed to me to have done remarkably well to get this far. Teaching them was a challenge, but I set out to get them interested and to encourage them to think for themselves. To do this one had to get to know them as individuals. So I socialised with them and tried various pedagogical devices.
As soon as I had settled in my main personal contact was with my students, especially the older ones. Most of the third and fourth years were about my age or older than me. They often told me that I was too young to teach them, so I made them my friends. There were three cohorts with whom I was close. I have found the class lists for the third and fourth years when I arrived. I knew all their names, most of their personalities and some of their nicknames – though I never learned mine. I can still recall nearly all of these. I went on field trips with them, drank in cafés and quite a few would drop by about 5.00 p.m. for a coffee or limoun. I maintained contact after they had graduated and saw several in the United States and UK. When I returned to the Sudan in 1981–2, I was asked by a journalist why I had come back. I replied: ‘To see my daughter and my students.’ He told me that I had come to the wrong country because most of the latter were in Saudi Arabia or the Gulf states.
I was mainly responsible for three courses and a few bits and pieces, including teaching Local Government Law, about which I knew nothing, to mid-career civil servants, who knew quite a lot. In Introduction to Law I devoted most of the time to outlining the court system and setting law in Sudan in a broader geographical context. However, I made one modest advance. In order to set a context for the study of the Sudan Legal System, I began by presenting the class with a map of law in the world as a whole.12 This map suggested that almost every country belonged either to the common or civil law family. It indicated that some civil law countries were socialist (this was the period of the Cold War) and that many countries, mainly colonies and ex-colonies, recognised religious and customary law for limited purposes, mainly in respect of personal law, such as family and inheritance.
This simple map served a useful purpose in setting a broad context for the study of Sudanese law, in interpreting legal patterns in Cold War terms, and especially in emphasising the impact of colonialism on the diffusion of law. It explained, but did not purport to justify, why we were mainly studying English-based law. It also identified the Sudan legal system as an example of state legal pluralism (officially recognising parts of Islamic and customary law), and it provided a starting point for discussing the future development of local law.
Today that map would look primitive, partly because the world has changed in fifty years, partly because cartography is more sophisticated, but mainly because it was based on assumptions that were dubious even then. For example, in orthodox terms, as a depiction of municipal state legal systems it could be said to have exaggerated the importance of the civil law/common law divide; it underplayed the differences between legal systems within the common law and Romanist traditions; it had a private law bias; and it paid too little attention to hybrid systems. My map depicted all the national legal systems of the world as belonging more or less fully to either the common law or the civil law ‘families’, largely from the perspective of exporters. This was a picture that assumed massive transplantation. But, in addition to being naïve about what I was mapping, I accepted uncritically an equally naïve model of legal receptions. My first ever article, fortunately published obscurely in the Sudan Law Journal and Reports, was called: ‘Some aspects of Reception’; fifty or so years later I criticised this for being based on a naïve model of reception/diffusion, thereby starting the Self-critical Legal Studies Movement (Chapter 19).
The rest of the course was quite conventional, more descriptive than contextual, but I did try to include something on customary law, both the limited amount that was recognised as part of municipal law, and the much more extensive traditional customs that still were of great importance in rural areas. I asked students to bring back reports from their own localities when they went home; on the whole this worked well with Southerners, but with only a few exceptions aroused little interest among Northerners, even though customary land tenure and some other topics were still important in the North. My successor, Cliff Thompson, made a much better job of this, as did Olivier Farran in respect of family law. Later Francis Deng went on to write several books on ‘Dinka law’.
These experiences taught me that equating ‘law’ with state or municipal law is quite inadequate, especially in countries like the Sudan. If I were to try to give an account of the Sudan Legal System today, it would be radically different from my superficial effort in 1959–61, not so much because it has changed (which it has), but because my ideas about legal systems have changed. Then I did little more than give a formal account of state legal institutions, mainly courts; today my account would be more like Mark Fathi Massoud’s incisive account, much more historical, political and contextual with a far greater emphasis on the personnel of the state legal system.13
In Jurisprudence I struggled to find a way to make the subject relevant for Sudanese students. We had fun discussing issues about law and morality, I devoted some more time to custom and other local sources of law, but I did not deviate far from conventional historical approaches to Western legal theory. I used parts of George H. Sabine’s classic A History of Political Theory14 and included some legal anthropology, but there were no Southern voices, almost nothing on religious traditions, legal pluralism, or on the underpinnings of colonial law. Although Jurisprudence was my main expertise I had yet to find my feet in trying to teach legal and political theory that was less North-centric and more directly relevant to Sudanese law students. I did only a bit better in Dar es Salaam.
I was also responsible for Torts. I still loved the subject, despite the Salmond episode (Chapter 3) and even used Salmond along with a Canadian case book. It was easy to teach, not least because the students loved the plethora of interesting stories in the (mainly English) cases. There were almost no reported cases on the Law of Torts in the Sudan and only a few relevant ones from other parts of Africa. My main problem was not so much localising what I was teaching as just keeping up with preparation. In my first year in order to spin things out I spent an inordinate time on defamation and the esoteric law of liability for animals. Once I had only thirty minutes to prepare a lecture on strict liability from scratch. In a panic, I spent most of that time wrapping my copy of Salmond in a brown paper cover, as if it contained soft porn. Then I slowly dictated word by word the Rule in Rylands v Fletcher as if it were a statute, with a few obvious comments, and ended the class early. Afterwards two students came up to me and said this was the best lecture I had ever given them. Why could I not go on like this? I nearly gave up – but, fortunately, I persisted.
Later we came on to that absurdity, the English law of liability for harm caused by animals: we had fun discussing whether cows and sheep were ‘cattle’; they loved Filburn v People’s Palace in which a circus elephant trampled a dwarf; they were excited by the question whether the owner of a talking parrot could be liable for the parrot’s slanders; then we came to a case in which a camel bit the hand of a child in the London Zoo. Most of the case turned on whether camels were by nature tame or wild. There was a zoo in Khartoum and Sudanese are familiar with camels. ‘Aha, I thought, better than horses jumping over hedges where there are no hedges.’ Unusually, a hand went up: ‘Please, sir, why was the camel in a zoo?’ My immediate reaction was that the student was missing the point. Then the scales fell from my eyes – neither in this case, nor most of the other Torts cases we had studied, could the facts arise in litigation in the Sudan context. To be sure there were roads and factories and accidents, but hardly any Torts cases reached the courts – indeed I wrote a whole article about a solitary case in which an expatriate judge fell into an open ditch on the way to a party and sued the Khartoum Municipal Council in negligence, claiming almost the equivalent of their annual road budget in damages.15 I concluded that the English Law of Torts was largely irrelevant to Sudan.
I later wrote an article under the rubric ‘The Camel in the Zoo’.16 This was my first explicit attempt to outline a ‘law in context’ perspective in print. It raised questions about how Sudanese dealt with wrongful harms and other risks. ‘It is governed by custom’, said the students. How could I find out about these customs? I asked. ‘Ask the people’, came the reply. I encouraged the students to do just that, when they went home, with mixed success. I even attempted an absurd piece of field work in a village in the desert outside Khartoum, but this merely convinced me that I was no more fitted to serious empirical research than my guru, Karl Llewellyn. Meanwhile, I went on teaching the English Law of Torts from Salmond, as I was required to do. It took me some time to realise that the fatalism of Islamic culture embodied in Insha’Allah (God wills it) provided a coherent basis for a law of obligations suited to the Sudan: ‘Insha’Allah – the loss lies where it falls.’
Context, context, context. As soon as my eyes were opened I could see it everywhere. When a train-driver slaughtered some cattle lying on a railway on an open plain, this was held to be sufficient provocation to reduce murder to manslaughter for the cattle-owning Baggara people. Under English law at the time, damage to property could not be a basis for the defence of provocation in homicide, but the test in the context was held to be ‘the reasonable Baggara’. Abu Rannat CJ explicitly distinguished the case of a minister killing someone who had damaged his new Cadillac, but did not specify how to categorise the defendant (urban-dweller? Evolué? Westernised?).17
SLJR and the Sudan Law Project
The Sudan Law Journal and Reports (SLJR) was founded in 1956 by Egon Guttmann, my predecessor, with whom I overlapped for a few days on arrival. It was the result of an enlightened deal under which the government paid for the whole publication and members of the Law Faculty edited the Law Reports and produced a journal devoted to law in the Sudan on a voluntary basis.18 Patrick Atiyah took over from Guttmann and handed over to me when he left for Ghana in 1959. I had no experience of editing or law reporting and had only published one article (in the SLJR). This also proved to be an invaluable apprenticeship in at least three ways.
First, I had to spend a lot of time in the High Court, working closely with Chief Justice Abu Rannat, on whom more below. For two years I was in a similar position to a recent American law graduate clerking for a Federal judge. Secondly, I had to do much more than write headnotes, check citations and compile indexes. I had to chivvy reticent judges and rein in publicity-seekers. All of them wanted me to monitor their English, some wanted me to check their law, and a few even tried to get me to write their judgments. I was in and out of the High Court four or five days a week and got a real sense of how it operated. Thirdly, I soon noticed that the SLJR was not publishing a representative range of cases. Almost all the judgments I received or extracted were from criminal cases and a very high percentage were about homicide. The main defence against a charge of homicide was provocation, which would reduce murder to a lesser offence and mitigate the sentence. We were accumulating a rich vein of precedent on provocation and on almost nothing else. I persuaded the Chief Justice to broaden the range of courts from which we could select cases and to stimulate his brethren and subordinates to write judgments for publication on other legal issues.
On one occasion I nearly went as far as to encourage litigation. I discovered that the offence of ‘House Trespass’, modelled on the Indian Penal Code, was being interpreted differently by different courts in the Three Towns: in Omdurman ‘house’ was interpreted to include the hosh – the wall enclosing the property (rather like the English ‘close’); but in Khartoum trespass involved entry into a building – like breaking and entering in English law; and in Khartoum North it had been ruled that breaking and entering was not necessary in a go-down or factory that had a roof but no walls. This probably broadly reflected the different cultures of the Arab city, the expatriate quarter, and the industrial area. It meant that when we slept in the garden, if someone came and started tickling our feet – a practice not unknown – this did not constitute house trespass. Similarly, when people daily took a short cut through our garden, as if they had a right of way, they were not committing an offence. This did not make for uniform law. My interest was in improving communication within the judiciary as well as publishing cases for use as precedents. So I persuaded a former student, then a Third-Class Magistrate, to obtain jurisdiction over some cases of House Trespass and to write a serious judgment analysing the offence. This he did, but his superior was horrified, insisting that it was above the station of a Third-Class Magistrate to presume to be capable of writing a judgment, let alone having it published. Editing the SLJR made me very aware of how unrepresentative and uninformative law reports generally and inevitably must be. They are not representative of the law, let alone of society and they rarely tell the whole story of a dispute or event, a theme later brilliantly developed by Brian Simpson.19 They can be wonderful anthologies of stories and arguments, but they are typically atypical.
A fourth concern fortified my life-long interest in archives. The SLJR was dealing with recent cases from 1956. There had been two selective volumes of law reports published before Independence. They were the result of private initiatives by frustrated public servants. I argued for a project to publish the backlog of unreported precedents from the Condominium period. This had strong support, but how to get hold of the cases? There were some in personal collections of retired judges. Some advocates hoarded them as ammunition for ‘pocket pistol law’, using them to take their opponents by surprise. Most of the material was scattered in store rooms spread across the whole Sudan. I undertook a pilot project. The Chief Justice authorised me to inspect and, if necessary, sort the store in Wad Medani Provincial Court. The Province Judge was reluctant – perhaps because he feared that the store might reflect badly on him – but orders were orders. With two court clerks I attacked the store. It was full to the ceiling of a jumbled mass of files, loose papers and other relics, dumped there with no attempt to put them in order. One of the first things we found was a panga (machete) wrapped in a bloodstained cloth – an exhibit from a homicide case? We met many insects and a few scorpions, but no snakes. When we had emptied the store, we found that there were almost complete files going back many years and a valuable collection of judgments made by Judge Bodilly, a former Province Judge. This pilot study enabled Oliver Farran and me to draw up an ambitious plan to create a national legal archive, in first instance as a basis for law reporting, but also as a resource for law teachers, historians and social scientists. We obtained the support of the Chief Justice and approached the Ford Foundation, which had recently begun to take an interest in legal education in Africa. Within a remarkably short time we were awarded a grant of over $100,000 – an unbelievable sum in our eyes. In the following years the Sudan Law Project was brilliantly carried out by Cliff Thompson, who was in effect my successor on the Law Faculty. Not only was law reporting in Sudan transformed, but many law students and junior members of the judiciary were involved as part of their practical training.
The Sudan Law Project had two important repercussions for me personally, even though I left Khartoum soon after we obtained the Ford grant. First, this was the start of a long relationship with the Ford Foundation.20 This, among other things, led to involvement in a New York-based committee on legal education in the world as a whole that has influenced my thinking and writing about legal education ever since (Chapter 17). Secondly, this reinforced my fascination with archives (Chapter 2). For the rest of my life I have been drawn to archival work of different kinds, in Dar es Salaam, the Llewellyn Papers in Chicago, the Bentham Project in London, the Commonwealth Legal Records Project, legal literature and legal records in small jurisdictions (in the Republic of Ireland, Scotland and Northern Ireland), latterly with family papers, including my own Augean stables, and a project on Legal Records at Risk in England and Wales.21 Although my main object has been to save them from destruction, my fascination leads me to read them – which is one thing a real archivist must not do!
Chief Justice Mohammed Abu Rannat
El Sayed Mohammed Abu Rannat had been one of the first group of eight junior officials to be selected in 1934 to take an intensive part-time course in Law, taught by an enlightened Legal Secretary. Sudan had a mainly career judiciary and he worked his way up the ladder, becoming a High Court Judge in 1950 and the first Sudanese Chief Justice in 1955, the year before Independence.
Appointed by the Azhari government, Abu Rannat accepted the transition when they handed over power to the military in November 1958. Abu Rannat was highly respected as a competent, fair and upright judge, but had few intellectual pretensions. He was thoughtful, modest and kind and he taught me a lot. He also used me on two or three occasions as a sort of speech-writer, including doing the first draft of an article on the relationship between Islamic law and customary law.
As a judge, Abu Rannat CJ was notable for using the controversial ‘repugnancy clause’ to modify imported common law doctrines that he held to be unsuited to local conditions and therefore contrary to ‘justice equity and good conscience’ – a phrase that had empowered British judges to strike down customary and religious rules that they disapproved of.22 He played a major role in reforming the court system and helped to introduce a (modest) element of democracy into local government. A sincere Muslim, he favoured cautious gradual evolution of law rather than radical Islamisation. He maintained the independence of the judiciary during the Abboud period and ensured a smooth handover of power during the 1964 Revolution, which ended his judicial career. I worked closely with him on law reporting and related matters and always found him accessible, friendly and supportive. His backing gained me immediate access to all the senior judges. I learned a lot.
Scrapbook
First revolution
In November, still waiting for a house, we were billeted with the Dean, Elcana Tenenbaum. On 17 November, I had an 8.00 a.m. class, so we had breakfast at 7.00 a.m. The telephone rang. Elcana answered it. ‘There has been a revolution; the Army has taken over.’ For all of us, this was our First Revolution – so we did not know what to do. Tenenbaum had no doubts about the first priority: ‘I must tell Peter Kellner’ (a journalist, the stringer for the London Times). That was the first PK had heard of it. My first question was: ‘Will there be lectures?’; ‘Why not?’, replied the Dean.
So I set out on foot to the Law Faculty, about half a mile away. Sharia Al Gamhuria, the main road into Khartoum city centre, was completely deserted and silent. As I came to the Faculty, I saw several students standing around outside – about one-third of the class. They told me excitedly that there had been a Revolution. ‘I know’, I said. ‘Are there lectures?’ they asked. ‘Why not?’, I replied and strode confidently into the lecture room.23
Early accounts of the Revolution have become a pastiche: ‘You send the tank to the Blue Nile Bridge, the armoured car to the White Nile Bridge and you hail a taxi and drive with your speech to the Radio Station.’ There was some truth in this – in a failed coup nearly a year later, one of our law graduates was arrested in a taxi, with his speech neatly typed. He did not (yet) control the tank or the armoured car. It was said that General Abboud – a small, quiet, reputedly easy-going man – was woken up in the middle of the night and told: ‘General, you are now the President.’ Accurate or not, this apparently also had a core of truth. He was the figurehead of a quite disciplined military junta who ran the country for nearly seven years, until overthrown by a popular uprising in 1964, taking the form of a massive demonstration in Khartoum – another bloodless coup. In 1958 the democratically elected government – a fractious conservative coalition – had handed over to the military rather than call an election that they would probably lose.
All power – legislative, judicial and executive – was vested in the Supreme Army Council, then delegated to the President. For the next three months the courts continued to operate as if nothing had happened. After that, General Abboud delegated power to ‘the Chief Justice’ with retrospective effect. During this period no one publicly challenged the authority or jurisdiction of the courts. The General continued to rule by decree for several years, and the regime was generally accepted to start with. There was a delay before the students reacted, so the annual student demonstration did not take place in November, the scheduled month.
Book burning
After a siesta we used to sit out on the patio overlooking our garden and have tea. This was the hour at which students quite often dropped by to seek advice or just for a chat. They would have a cup of tea or a glass of limoun and move on. One afternoon a student we knew well dropped in. He seemed unusually reserved, even embarrassed. He even refused a limoun and left after a few minutes. Then came another who behaved in the same way. Then more, each coming on his own. Something was up, but they would not tell me. It transpired that they were on their way to a book burning. The military regime, to distract attention, had once more whipped up anti-Zionist fever. The students had decided to burn all library books published in Israel, even though scholarly books were specifically exempt from import restrictions. When I heard this, I remembered that I had met Hassan Omer Ahmed, one of our brightest recent graduates now a tutor, coming out of the library brandishing a book on precedent published in Israel. ‘Who ordered this?’, he asked angrily. ‘I did’, I said fiercely. ‘Have you checked it out?’
Mine was the first book to be burned, before they went after bigger fish – the University Librarian was Jewish. Our visitors had called in en route to this event in order to make it clear that this was not a personal attack. This incident affected me quite sharply: first, I have a visceral disgust at book burning, not just the Nazis, but also because of one’s special relationship with books. Book burning is destroying ideas, especially when the books are irreplaceable, so it has a different meaning from dumping Xeroxes or one’s surplus offprints. Secondly, I had difficulty coping with the Sudanese way of drawing a sharp line between personal and political relations. I was also made to realise that the students just did not have the same cultural associations with books or book burning or, as I already knew, the ritual significance of demonstrations.24
First Examiners’ meeting
In May 1958 I attended my first Examiners’ meeting as a lecturer. It was in London. My most distinctive memory is that all of the Internal Examiners were senior academics of the University of London, that the names of most of them were familiar and that almost all of them had taken the trouble to turn up. Furthermore, they had devoted a lot of time to commenting on draft exam papers, reading quite a high proportion of scripts, and giving advice and encouragement to the teachers, who were co-examiners. The students were formally taking the London LLB and London standards were applied with no concessions. It was a tremendous boost to confidence to have nearly all our marks confirmed – occasionally upgraded by the London Examiners. During my time at Khartoum no one obtained a First; only one was an awarded an Upper Second; and the best students nearly always got Lower Seconds, which qualified at least some to go on to postgraduate work. The fact that I had a senior ‘Internal’ Examiner looking over my shoulder spurred me to mark very carefully and perhaps rather strictly. A very useful apprenticeship.25
A summer term in Oxford
Generally, things were very unsettled in Khartoum and so was I. On leave in the summer of 1960 I again stood in for Barry Nicholas and taught Jurisprudence at BNC, partly to decide whether to apply for Oxford Fellowships. There were three coming up. I was particularly attracted by Univ. (the Jurisprudence College). I was still very ambivalent about Oxford – the flummery of gowns and rituals and the conservatism of the syllabus, over which college tutors had almost no control. I had enjoyed teaching, including giving tutorials at BNC, but the grind of heavy tutorial teaching – often fourteen to sixteen hours a week – on a narrow syllabus was unappealing. Mainly for this reason I decided not to apply.26 The decision proved to be a good one and for the right reasons. For the remainder of my career – in Dar es Salaam, Belfast, Warwick, UCL and several American law schools – I designed and examined my own courses. Oxford boasted that its strength lay in the fact that students were examined by people who had not taught them. This may do something for maintaining standards, but it almost completely stifled innovation.
First article
Diary, March 1959: ‘… in bed with symptoms of malaria (“There is no malaria in Khartoum,” insist the medics). I finish my first academic article on “Some Aspects of Reception”. It is published in 1957 Sudan Law Journal and Reports, which is two years behind schedule – “the prediction theory of law” in action? Patrick Atiyah doubted whether there was much to say about reception as a topic.’ I agree, it is about influence and, like artistic or literary influence, there is not much illuminating to be said. Studying influences on Van Gogh is not as interesting as studying Van Gogh. Nevertheless, my interest in the topic has continued.27
The start of American interest in Law in Africa
I encountered American interest in Law in Africa about 1960, first by meeting and becoming friends with Jim Paul (University of Pennsylvania), who was on a mission to consider prospects for American involvement in legal education in Eastern Africa. His report suggested that the British had already established a sphere of influence in Sudan (and were about to in Tanganyika) and recommended that US efforts should be focused on Ethiopia.28 In 1963 Paul became the founding Dean of the Addis Ababa Law School. As a graduate of Chicago and in reaction against narrow British conceptions of academic law, on the whole I welcomed the American involvement; indeed, from the early 1960s until the late 1970s I could be said to have been a minor, but quite sceptical, player in the American Law and Development Movement.29 Starting with the Sudan Law Project, I had close contact with the Ford Foundation for nearly twenty years, mainly with the SAILER Program and the International Legal Center in New York. From time to time rumours would go round, suggesting that these institutions were created or infiltrated by the CIA or the State Department, or that they were disguised instruments of colonialism.30 Clearly, they were concerned to spread American influence, but they seemed to be working through independent governments in a spirit of co-operation. Since they supported my work and helped the Law Faculties in Khartoum and Dar in ways that I approved, I welcomed their advice and funding. In my experience, it was some American academics who were more evangelical than the Foundation officials – often crudely assuming that the American Constitution and American legal education had no rivals and not paying much attention to local history and conditions. Some of those who only stayed one or two years were treated as ‘experts’ on ‘Africa’ on their return, whilst the few who spent many years in one or more countries, such as Cliff Thompson and Jim Paul, were well aware of how little we understood. Beyond this I have no evidence either way of CIA or other sinister influences. If it was there, it operated in very indirect ways.
I maintained contact with Sudan for many years afterwards mainly through Sudanese friends and news reports; we visited our daughter twice when she returned to the country of her birth after graduation – about twenty-one years after she had left. She worked first in Ahfad, essentially a girls’ finishing school; then briefly as a civil servant monitoring NGOs (she came away thinking well of only about three out of over sixty); then after helping Tigrayens in exile she secured an appointment with OXFAM and stayed in Sudan for several more years. After that I still maintained a more spasmodic interest, mainly through contact with Francis Deng and Abdullahi An Na’im, about whom I wrote a certain amount in their roles as ‘Southern jurists’.31 So Sudan has been a concern mainly from afar through a turbulent and often tragic history and my memories are to some extent jumbled up with later gossip, rumour, reading and appalled following of news of disasters, coups, repression and apparent genocide.
Last night in Sudan
Diary, Sept. 1961:
Juba, in a hotel that was, and still is, notorious for its discomforts. I am genuinely sad to be leaving Khartoum, but excited by the prospect of taking up a post in the University College, Dar es Salaam (UCD) which is due to open in about a month.
At the bar, I fall into conversation with a Sudanese doctor, a Northerner. I tell him that it is my last day in Sudan and of my mixed feelings about leaving. ‘As you are going’ he says ‘you can now speak frankly about the Sudanese. What do you think of us?’ By now I am used to this style of direct questioning and I go through my litany on the friendliness, generosity, sensitivity in personal relations of the Sudanese. ‘But were not your students lazy and ill-behaved, always making trouble?’ he asked. I acknowledged that it was difficult getting them to work and that the university had suffered from endemic strikes, demonstrations and closures. But, on the whole, I was prepared to defend my students against his charges. He pressed me to say something critical; so I countered by saying that there was one thing that puzzled me and this was the sharp distinction Sudanese made between public posture and private relationships, sharper even than British MPs who attack each other on the floor of the House of Commons and then drink together quite amicably … I had been a minor target of one such incident and I had found it hard to stomach. The book-burning episode was an example. But the most famous occasion had been just before Independence when a big demonstration had been held to demand the immediate repatriation of all expatriates and an instant Sudanisation of all senior posts in the University. The officers of the Students Union, as leaders of the demonstration, had spent the night before writing personal notes to every expatriate member of staff in effect saying: ‘We think that you are great and are doing an excellent job; we love you very much and we hope that you will stay for many years.’ Some expatriates, I suggested, found such conduct incomprehensible. He looked concerned and pleased: ‘I was President of the Union at that time and it was the best demonstration we ever organized. I can easily explain to you our attitude: we love you and/or hate you and we want to express both emotions. Why not?’
Retrospect
In his autobiography, Patrick Collinson, a near-contemporary and good friend in Khartoum, dismissed his five years in Sudan as a time of ‘falsity, futility and self-delusion’. Pat was a devout Christian Socialist, a prodigious walker, who became a distinguished and popular Regus Professor of Modern History at Cambridge, and a lovely man. I was surprised by the intensity of his rejection of his time in Khartoum.
I came across his memoir, The History of a History Man (2011), after I had nearly completed a first draft of this chapter. He arrived in the Sudan to teach history two years before I did and left about the same time. I was quite shaken. How come that our accounts of our experiences of Sudan during this period have such a different emphasis? I think that it is worth quoting him at some length:
To follow from a distance its unutterably tragic history over the ensuing decades is to be constantly reminded that our years there were years of falsity, futility and self-delusion. Neither we, nor above all the Sudanese, of so many ethnic and linguistic identities (175, with 325 smaller groups), had yet come to terms with how, and whether, such a state, if it was a state (rather, the anomalous outcome of colonial history), could be made to work; although those in power at any time knew what the answer to that question was – for themselves.32
After summarising the unending, appalling story of military regimes, ruthless Islamisation, famines and genocide in Darfur, Machiavellian ‘Peace Agreements’ masking battles over control of oil, inter-tribal massacres in the South carried out in the name of different strategies of emancipation, potentially ruthless Chinese intervention in pursuit of oil, Collinson concludes:
The verdict of Julie Flint and Alex de Waal on Sudan in the early twenty-first century is chilling:
The serial war criminals at the heart of Sudan’s present government once sought absolute power in pursuit of an Islamic state. Now they seek power for its own sake. Today, as yesterday, the people they perceive to be challenging that power count for nothing. They can be subjugated, shot or starved without compunction. If local allies have different axes to grind, they are free to grind them, no matter how much blood they shed. Mass killing has become so routine that it no longer needs conspiracy or deliberation. It is simply how the security elite does business. It is ingrained intent, atrocity by force of habit.
It is no less chilling to reflect on the fact that for five years Patrick Collinson was cheerfully working in the delivery room where this appalling future was gestating.
I agree with Collinson that the political and other aftermath at the macro-level were in many ways appalling and tragic. I probably followed events in the 1970s and 1980s more closely than he did through my daughter, who worked there as an aid worker and from former students, especially Obeid Hag Ali, Francis Deng and Mohamed Abu Hareira (whose PhD I supervised at Warwick). But was my time in Khartoum three years of ‘falsity, futility and self-delusion’? Falsity? At the time I was ignorant and naïve about national politics, cut off from reliable information, more focused on micro-concerns than macro-politics. I was often bewildered, but not to the extent that I now think I was as deluded as my friend suggests. Too sanguine perhaps and mainly concerned with my own little patch. Futility? No – I do not think that my engagement with students in teaching and friendship was futile. I taught some things and learned a lot. I still think that the SLJR and the Sudan Law Project were worthwhile at the time and for a period afterwards. However grim the broader picture, this was not all futile. Self-delusion? It was only later that I realised the extent of my incomprehension at many levels. When there I suffered frequent culture-shock; I knew that I was bewildered and unaware of a lot that was going on. Teachers need to understand what they are talking about: if I were to try to teach about the Sudan legal system today I would use Massoud’s book rather than Egon Guttman’s article;33 but I got the bare facts right, even though they told us nothing about what law in the Sudan was really like. It was only law in rather sparse books. I got only minor flashes about the law in action through my law reporting activities and professional and student gossip. I did my best.
Our strongest memories of our time in the Sudan were of friendships, which lasted long afterwards and I refuse to disown these as delusory. And I don’t think that most of my anecdotes, especially those recorded in my diary, are merely self-delusory, although they are open to multiple interpretations. I claim to be a ‘realist’, but humankind cannot bear very much reality.34
