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Published online by Cambridge University Press: 24 December 2009
A written law and a separate if not independent judiciary were among the most distinctive innovations brought by Islam to the Sudanic region. The history of the reception of the sharī'a and the institutions associated with it, of its modifications of the local customary law and of the changes wrought upon it by the same customary law may help to provide a framework for more general discussions of the process of islamization within Africa. The main purpose of this paper is to describe the history of the office of qāḍī, or judicial official, in the Dār Fūr sultanate, which occupied what is now the westernmost province of the Democratic Republic of the Sudan between the mid-seventeenth century and 1916. Thus I am not so much concerned with the content of the law, whether customary or Islamic, administered within the sultanate as with who administered it.
1 For a general survey of the sultanate's history, see O'Fahey, R. S. and Spaulding, J. L., Kingdoms of the Sudan, London, 1974, 107–84Google Scholar, and in greater detail in my The growth and development of the Keira sultanate of Dār Fūr, unpublished Ph.D. thesis (University of London, 1972)Google Scholar, to be published in revised form.
2 Of these I photographed 217 in 1970 and 1974 and must here acknowledge financial support from the Central Research Fund, University of London, the Research Committee, University of Khartoum, and the Norwegian Research Council. The 1974 visit was undertaken in collaboration with the Central Records Office, Khartoum, as part of a long-term project, and with the assistance in the field of Sayyid Ahmed Ibrahim Osman of the CRO.
Photographs of these documents have been deposited in the Central Records Office and the Department of History, University of Bergen. Documents from my collection are referred to by their field catalogue number; the provenance of other documents will be described where appropriate.
3 The term used to describe these judicial records in 99.12/7 dated 1261/1845–6.
4 A detailed description of the documents will be found in my Land in Dār Fūr: land charters and related documents from the Dār Fūr sultanate, to be published in the Fontes Historiae Africanae: Series Arabica.
5 O'Fahey, and Spaulding, , Kingdoms of the Sudan, 141.Google Scholar
6 Aḥmad Amīn 'Abd al-ḥāmid, interview al-Fāshir 7 June 1970; a fact confirmed by other informants. Fur, a complex tonal language, appears never to have been reduced to writing.
7 It may be premature to make too much of this distinction between the Fur and non-Fur areas of the state since a systematic search for documents has yet to be made in the Fur areas. Nevertheless the ethnic and linguistic division remains.
8 Muḥammad b. 'Umar al-Tūnisī, Tashḥīdh al-adhhān bi-sīrat bilād al-'Arab wa 'l-Sūdān, ed. Ehalīl Maḥmūd 'Asākīr and Muṣṭafā Muḥammad Mus'ad, Cairo, 1965, 201Google Scholar and in the translation, Voyage au Darfour, tr. Perron, , Paris, 1845, 194.Google Scholar
9 L. Holý's description of the Berti of north-eastern Dār Fūr provides a summary of this common culture, Neighbours and kinsmen: a study of the Berti people of Darfur, London, 1974.Google Scholar
10 On Daali, see O'Fahey, and Spaulding, , Kingdoms of the Sudan, 117–21.Google Scholar
11 Nachtigal, G., Sahara and Sudan, tr. Fisher, A. G. B. and Fisher, H. J., IV, London, 1971, 273.Google Scholar
12 ibid., IV, 277.
13 ibid., IV, 328.
14 ibid., IV, 369–70.
15 Shuqayr, Na'ūm, Tārikh al-Sūdān al-qadīm wa 'l-ḥadīth wa-jughrāfīyatuhu, 3 vols., Cairo, n.d. [1903], II, 137–9.Google Scholar See also the comment of Slatin, R., Fire and sword in the Sudan, London, 1896, 41.Google Scholar
16 Arkell, A. J., ‘History of Darfur, a.d. 1200–1700’, Sudan Notes and Records, XXXIII, 1, 1952, 145–6.Google Scholar
17 Idrīs ai-Banānī, interview al-Fāshir 23 March 1974, asserted that it had existed in written form and added the detail on the authority of a Tunjurāwī shaykh that the Qānūn Dālī had been originally written on parchment, using the words samfare (unidentified) or jild Ar., which was used before the import of paper.
18 The two manuscripts were given him as the Kitāb Dālī, which may suggest that the Kitāb Dālī was simply a generic term for customary law (Ar. 'urf or 'āda) in relation to sharī'a. The manuscripts are in the Arkell papers, School of Oriental and African Studies, London, accession no. 210522, first batch (hereafter API or 2), box 4/17, fols. 1–88. One is ‘in the form of a revelation to the learned ‘aAbd al-Samad ibn 'Abdallāh ibn Muḥammad in the time of Sultan Khalīfa Manṣūr’, from Dār Birged in eastern Dār Fūr, which does appear to be an attempt to reconcile sharī'a with 'urf, and the other a garbled version of the Mukhtaṣar of Khalīl b. Isḥāq.
19 Detailed descriptions of the scale of fines and legal procedure, district by district, are to be found in the Western Darfur District handbook, al-Fāshir Headquarters Archives. See also AP2, 10/48 passim.
20 I have described the rôle of the faqīhs elsewhere; ‘Religion and trade in the Kayra sultanate of Dār Fūr’, in Ḥasan, Yūsuf Faḍl (ed.), Sudan in Africa, Khartoum, 1971, 87–97Google Scholar; ‘Saints and sultans: the rôle of Muslim holy men in the Keira sultanate of Dār Fūr’, in Brett, M. (ed.), Northern Africa: Islam and modernization, London, 1973, 49–56Google Scholar; and ‘The Awlād 'Alī: a Fulani holy family in Dār Fūr’, Verōffentlichungen aus dem Ūbersee-Museum, Deutsche Geographische Blātter, LI, 1974 (forthcoming).Google Scholar
21 Some of the charters concerning these grants have been published in O'Fahey, R. S. and Ahmad, Abdel Ghaffar Muhammad, Documents from Dār Fūr, Fasc. 1–2 (University of Bergen. Dept. of History. Programme of Middle Eastern and African Studies. Occasional Papers Nos. 1–2), Bergen, 1972–1973 (mimeograph).Google Scholar
22 We have no certain dates; the Keira king-list in de Cadalvène, E. and Breuvery, J. de, L'Égypte et la Nubie, second ed., Paris, 1841, II, 199Google Scholar, gives his regnal dates as 1128–41/1715–16—1728–9 (see my ‘Kordofan in the eighteenth century’, Sudan Notes and Records, LIV, 1973, 32–42Google Scholar, which is an annotated translation of Cadalvène and Breuvery on the history of Kordofan); Nachtigal, , Sahara and Sudan, IV, 282Google Scholar, gives 1682–1722, and Shuqayr, , Tārīkh, II, 115Google Scholar, 1138–58/1725–6—1745–6; these latter dates would appear to be too late.
23 Nachtigal, , Sahara and Sudan, IV, 282.Google Scholar
24 Thus in 71.8/9, a sijill from Sultan Muḥammad al-Ḥusayn (1254–90/1838–73) dated between 1260/1844 and 1269/1854 (the date is incomplete), the plaintiff affirms that his ancestors were granted land by Mūsā. Similarly in 99.12/7, a sijill from the maqdūm (provincial commissioner or governor) Ḥasan Siqirī dated 1261/1845–6, the defendant claims his ancestor settled in the Khirībān region in Mūsā's time. In both cases, the original settlers or their descendants received written charters from later sultans establishing or confirming their rights.
25 Thus in 125.13/10, a sijill from Sultan Muḥammad al-Ḥusayn. dated 1271/1854–5, the sultan says he had read a charter of Aḥmad Bukr issued for al-ḥājj Zaydān and found it to be authentic. The sultan then issues a decree (120.13/5, also dated 1271) confirming the authenticity (ṣiḥḥa) of the earlier charters of the Awlād [al-ḥājj] Zaydān.
26 Again we have no certain dates; Cadalvène and Breuvery, L'Égypte et la Nubie, II, 199, give 1154–9/1741–2—1746–7 (but see SNR, LIV, 1973, 35); Nachtigal, Sahara and Sudan, IV, 283, gives 1722–32 and Shuqayr, , Tārīkh, II, 115, 1158–70/1745–1746—1756–1767.Google Scholar
27 Nachtigal, , Sahara and Sudan, IV, 282–3.Google Scholar Document 154.18/14 with the seal-date of 1193/1779–80 is a confirmatory charter issued for the same Awlād Jābir by al-sulṭān al-khalīfa al-ḥājj Isḥāq, who was khalīfa to his father Sultan Muḥammad Tayrāb.
28 Nachtigal, , Sahara and Sudan, IV, 282.Google Scholar
29 At present we have no documents from Harūt's two successors, 'Umar Lei and Abū 'l-Qāsim. There are, however, references to charters issued by them in later documents, e.g. 128.14/3 which is published in Documents from Dar Fūr, Faso. 2, 25–35, is a confirmatory charter of Muṭammad al-Ḥusayn dated 1260/1844–5 referring in sequence to earlier charters, including ones from 'Umar and Abū '1-Qāsim.
30 O'Fahey, and Spaulding, , Kingdoms of the Sudan, 126–9.Google Scholar
31 Nachtigal, , Sahara and Sudan, IV, 280.Google Scholar
32 Idrīs al-Banānī, interview al-Fāshir 21 March 1974. The lack of evidence is by no means conclusive; Bukr ruled largely to the west of the Jabal Marra, precisely the area as yet unexplored for documents.
33 O'Fahey, and Spaulding, , Kingdoms of the Sudan, 129–34.Google Scholar
34 Chronology now begins to be a little more certain; 166.18/26 is a charter from Tayrāb with the seal-date 1172/1758–9. There is no assurance, taking into account other seals, that this is Tayrāb's accession date and Nachtigal's dates (Sahara and Sudan, IV, 287)Google Scholar of 1752–85 may well be correct, since it seems almost certain that he died in 1200/1785–6. The accession date given by Cadalvène, and Breuvery, , L'Égypte et la Nubie, II, 199, 1176/1762–3Google Scholar, is thus too late, and both the dates given by Shuqayr, , Tārīkh, II, 116, 1181–1202/1767–1768—1787–1788Google Scholar appear to be incorrect.
35 O'Fahey, and Spaulding, , Kingdoms of the Sudan, 134–7.Google Scholar On. the significance of the dato 1150 see Walz, T., The trade between Egypt and Bilād as-Sūdān, unpublished Ph.D. thesis (Boston University, 1975), 259.Google Scholar I am very grateful to Dr. Walz for a copy of his thesis and for making available other material from his Cairo researches relevant to Dār Fūr.
36 Al-Tūnisī, , Tashḥīdh, 191–2Google Scholar; Darfour, 182–3.Google Scholar
37 On Duggu, see Holý, , Neighbours and kinsmen, 117.Google Scholar Document 201.19/3 is a confirmatory charter issued by Duggu, confirming rights originally granted by his father to the Musabba'āt community at Jugo Jugo, some way to the south of Tagabo.
38 API, 4/16, fols. 24–32, two Arabic notes written by shartay (district chief) Mahdī Sabīl Abū Kudūk.
39 Walz, , op. cit., 104Google Scholar, in 1186/1773; and 110, another example dated 1164/1751 of a merchant who had died in Dār Fūr.
40 O'Fahey, and Spaulding, , Kingdoms of the Sudan, 137–40 and 164–71.Google Scholar
41 From the intitulatio of 149.18/9, a confirmatory charter of Sultan Muḥammad al-Faḍl (1218–38/1803–38) dated 1222/1807–8; such phrases are very common.
42 Browne, W. G., Travels in Egypt, Syria and Africa, second ed., London, 1806, 314.Google Scholar
43 A son of a Fnlani immigrant from the west, see my ‘Awlād 'Alī’, passim.
44 Jadīd al-Sayl, 20 miles north-east of al-Fāshir, was from at least the reign of Muḥammad Harūt an important religious centre around whose mosque, built in the reign of 'Abd al-Raḥmān and still standing, various Jawāmi'a clans from Kordofan settled.
45 Of an influential Berti family at al-Ṭuwaysha in eastern Dār Fūr, see al-Tūnisī, , Tashḥīdh, 99–100Google Scholar; Darfour, 88–9.Google Scholar
46 Aḥmad Ādam Abbo, a descendant of the wazīr 'Alī, interview Kattāl 18 June 1970.
47 This is clear from 71.8/9, which case consisted of a series of hearings held over a period of at least two months; the witnesses to the judgment or to its enforcement were not necessarily present at all the hearings.
48 See the charters and sijills in al-Fūnj wa 'l-arḍ, ed. M. I. Abu Salim (University of Khartoum. Sudan Research Unit. Occasional Papers, No. 2), Khartoum, 1967.
49 And in both Fur and Arabic: ‘The Sultan was hearing a cause of a private nature, the proceedings on which were only in the Fûrian language’, Browne, , Travels, 234.Google Scholar
50 On Ibrāhīm, see O'Fahey, and Spaulding, , Kingdoms of the Sudan, 151, 171–2.Google Scholar
51 Browne, , Travels, 239.Google Scholar
52 ibid.; but sijill 206.22/2, dated 18 Rabī'a II 1262/15 April 1846, concerns a dispute over land between two merchants at Kobbei heard before the wazīr Būsh. Perhaps the fact that the land under dispute was a grant from the sultan decided who heard the case. However, procedures may well have changed in the intervening period.
53 Browne, , Travels, 259–60Google Scholar; perhaps the case presented peculiarities, since 122.13/7 and 175.18/35, both sijills arising from disputes over the ownership of slave girls, were heard before qādīs.
54 Browne, , Travels, 256.Google Scholar
55 Nachtigal, , Sahara and Sudan, IV, 330.Google Scholar
56 Al-Tūnisī, , TashḥīdhGoogle Scholar, plan opp. 208 and 117; Darfour, figs. 16 and 108.
57 Tyan, É., Histoire de l'organisation judiciaire en pays d'Islam, second ed., Leiden, 1960, 101.Google Scholar
58 100.12/8.
59 157.18/17; the reading of the date is uncertain, but it is probably 14 Dhū 'l-Qa'da 1256/7 January 1841.
60 167.18/27 and 188.18/48; both are undated but carry the same seal, wilāyat al-qādī al-hājj 'Izz al-Dīn sanat 1204 (1789–1790).Google Scholar
61 Naṣr al-Dīn 'Izz al-Dīn, al-Fāshir 24 March 1974; Aḥmad 'Abd al-Ḥakam, al-Fāshir 27 March 1974, and a series of interviews with al-ḥājj Abū Bakr Mahmūd, al-Fāshir March 1974.
62 185.18/45, otherwise undated.
63 168.18/28, undated.
64 169.18/29, undated.
65 103.12/11, 1249/1833–4.
66 157.18/17, 14 Dhū 'l-Qa'da 1246/7 January 1841.
67 197.18/57.
68 This can be deduced from those sijills where the judge sends the disputants back to their land to swear upon their evidence (bayyina) or where the judge sends out a commissioner (muwajjah) to administer the oath or delimit a disputed boundary.
69 Taxes, for example, were collected, stored, and distributed through a hierarchy of officials, the jabbāyīn (Fur, jubaῃa) controlled by a senior title-holder resident near the capital, the abū 'l-jabbāyīn.
70 I have not included here any discussion of the judicial system under the restored sultanate of 'Alī Dīnār, 1898–1916; the documents we have from his reign support the comments of Theobald, A. B., 'Alī Dīnār: last sultan of Darfur, London, 1965, 208–19.Google Scholar
71 206.22/2, 18 Rabī' II 1262/15 April 1846.
72 Document B.2.6 dated 1223/1809 from the archive of 15 documents photographed at Dōr in Dār Zaghāwa (northern Dār Fūr) by Professor and Madame J. Tubiana, referred to in Fourcade, J. F., Documents arabes intéressant l'histoire du Dār-Fōr (Dossiers de la RCP, 45), Paris. Centre National de la Recherche Scientifique, 1968, I, 45.Google Scholar
73 99.12/7, 1261/1845–6.
74 105.12/13, undated but with the seal-date 1255/1839–40, a son of Browne's patron.
75 124.13/9, 1272/1855–6; 65.8/3, 1279/1862–3, and 192.18/52, date incomplete.
76 This is sijill 125.13/10 discussed above.
77 99.12/7 from maqgdūm Ḥasan Siqirī.
78 The only reference to qāḍīs in the Fur lands is to a family of faqīhs who functioned as hereditary qāḍīs to the aba diimaῃs or governors of the south-western province: Province Archives, al-Fāshir, Western Darfur District handbook.
79 He campaigned with the wazīr against the Rizayqāt nomads in the south; Nachtigal, , Sahara and Sudan, IV, 311.Google Scholar
80 Fur ‘royal mother’, a title which carried with it control of many estates (ḥākūra pl. ḥawākīr), of considerable political and ritual significance, given to one of the sultan's sisters.
81 She was married to the aba diimaῃ 'Abd al-Raḥmān Keke; papers of P. J. Sandison in possession of the writer.
82 Nachtigal, , Sahara and Sudan, IV, 315–16Google Scholar; Slatin, , Fire and sword, 48.Google Scholar
83 Document 4 from an archive of four documents photographed by Dr. Sherif Mahmoud el Hakim in Dār Zayyādiyya in north-east Dār Fūr is an undated charter issued by the iiya baasi for a Zayyādī, faqīh.Google Scholar I am grateful to Dr. el Hakim for supplying me with copies of his photographs.
84 A word of apparently Kanuri origin used for daughters of the sultan.
85 196.18/56, 1270/1853–4.
86 A rendering of the Fur 
rreῃduluῃ), literally ‘doorposts’; an official with this title was responsible for the security of the sultan's fāshir and acted as the main intermediary between the sultan and his subjects; see further O'Fahey and Spaulding, Kingdoms of the Sudan, 132, 152. Leading officials and chiefs had their rreῃduluῃ and this is what is probably meant here.
87 190.18/50, 21 Ramaḍān 1289/22 November 1872.
88 159.18/19, 1260/1844–5.
89 It lies outside the scope of this article to investigate the boundary between what concerned the state judicially and what did not, e.g. homicide, intentional and accidental, involved the state in that the authorities levied a fine on the community involved. Once this had been paid, it was left to the community to make whatever settlement was appropriate; API, 4/18, fol. 37.
90 Holý, , Neighbours and kinsmen, 120–51.Google Scholar Local conflicts and their resolution among the Zayyādiyya are discussed in Hakim, Sherif Mahmoud el, Collective decisions in a smith Saharan village, unpublished Ph.D. thesis (Baltimore, Johns Hopkins University, 1972).Google Scholar
91 e.g. 93.12/1, undated, in which a qāḍī, the faqīh Ḥabīb, settles a claim for maintenance by Marim against al-Ṭayyib.
92 Browne, , Travels, 275Google Scholar; Shuqayr, , Tārīkh, II, 146Google Scholar, qāḍī Aḥmad wad Ṭāhā. Kobbei as a commercial centre was probably atypical.
93 See further Holt, P. M., Studies in the history of the Near East, London, 1974, 121–34.Google Scholar
