The direct application of the Constitution by ordinary courts and the concept of Shari'a as a source of legislation: A review of the Sudanese Supreme Court's decision in Sudan Government v ASK

Résumé 0

This is a review of the 2011 decision of the Sudanese Supreme Court in Sudan Government v ASK. Relying on article 5(1) of the Sudanese Constitution 2005, which states that Shari'a should be the source of legislation, the Court decided to disregard the provision in section 4 of the Child Act 2010, which defines the child as a person whose age does not exceed 18 years, as unconstitutional as it was in conflict with the Criminal Act 1991, derived from Shari'a, that defines an adult as a person whose puberty is established by apparent features and has reached 15 years of age. While the article argues that the decision reaffirms the power of the ordinary courts to refrain from applying unconstitutional legislation even with the existence of a specialised Constitutional Court, it argues that in this specific case there was neither a violation of Shari'a nor of the Constitution that justifies invoking this power.