Waqfs: The Sudan
The waqfs have a long history in the Sudan. It has been reported that the earliest Sudanese waqf was a mosque in Dongala al Aguz dating back to the ninth century (Abdel Hadi, 1997: 5). The number of Sudanese waqfs naturally increased over time and even spread beyond the borders of Sudan when the Sultan of Sinnar, during al-Zarqa (The Funj) period, bought lands in Mecca and Medina and endowed them for the service of Sudanese pilgrims. This particular waqf, known as the al-Sinnariah, still exists.
But this appears to have been an exceptional situation: it has been argued that the waqfs in Sudan were traditionally weak and were enhanced only after the joint Ottoman-Egyptian occupation. According to Gabriel Warburg, it was the Ottomans who introduced a substantial waqf system comprising the Sharia Courts and the ulema. But the Mahdi uprising wiped out most of these. Waqfs too were destroyed together with the opposing ulema. Only the supporting ulema could survive. Therefore, Warburg argues, the resurgence of the waqfs in the Sudan is a relatively late development. The official religious policy of the Sudanese government under Lord Cromer, was to encourage orthodox Islam and to discourage Sufism. Waqfs were also accepted within this framework. Support for official Islam also came from Egypt. The central mosque of Khartoum, which was inaugurated in 1904, was largely financed by Egyptian waqfs as were the mosques of Halfa and Tokar (Warburg, 1971: 95-97).
In common with the rest of the Islamic world, the Sudanese waqfs throughout history suffered from political instability. Frequent changes of government, which wobbled between secularism and Islam, proved to be particularly harmful. During the secularist regimes the waqf system deteriorated and tended to be totally ignored and forgotten. Under these circumstances, even the declaration of independence in 1956 did not help. Financial losses became substantial and were particularly severe during inflationary periods as at the end of the 1970s. Those years were dominated by the military regime of Lt. General Numeiri who kept fluctuating between socialism and Islam. During the Islamic spells, however, the Ministry of Awqaf and Religious Affairs was established and important new legislation was introduced. With the Awqaf and Religious Law, 1980 for instance, the Minister became the general trustee of all the waqfs in Sudan. But most of these administrative changes had no significant effect and the total revenues that accrued to the system were down to one million Sudanese pounds at the end of 1989.
With the “Islamic Salvation Revolution” in 1989, radical changes began to be introduced. All Islamic institutions, among them the waqfs, were given particular attention and the Islamic Awqaf Organisation Law, 1989 was promulgated. With the revolution, a nation wide administrative reorganisation was attempted and the country was divided into 26 autonomous states, each of which was ordered to transfer 10% of its revenue to the central government.
These radical administrative reforms have had a direct impact on the revenue of the waqf system: the total revenue of merely 1 million pounds in 1989 exploded to 26,456,400 pounds. Although the magnitude is tempered by the high rates of inflation (150%) and the devaluations of the currency, it is clear that substantial increases in the revenue have been achieved.
The legal system pertaining to the Sudanese waqfs evolved as follows: During the Condominium (1898-1956), the Shari’ah Courts Law was promulgated in 1902. The bylaw of this law, issued in 1903, regulated these courts and Article 53 set forth that the Sudanese waqf system would henceforth be subjected to the Hanafi code. This shift from the local Maliki to the Hanafi School reflects a belated Egyptian influence where the latter had gained supremacy under the Ottomans and a reverse shift had occurred in 1946.
The next major development in the Sudanese waqf system occurred with the promulgation of the Islamic Charity-Waqf Law, 1970, which codified the jurisdiction pertaining to the waqfs. This law also bears the first signs of centralization, which has been observed almost everywhere else in the Islamic world. Accordingly, The Ministry of Religious Affairs obtained the right to manage the waqf system and reserved the right to appoint a nazir. This law remained in power until 1980 when the promulgation of a new law; al-Awqaf and the Religious Affairs introduced further centralization. Accordingly, the Minister of Religious Affairs was appointed the General Administrator, nazir ‘am, for the waqfs. Shortly after this, two Shari’ah circulars, numbers 57 and 58, were issued.
The decision to follow the Hanafi School had a direct impact on the irrevocability of the waqf. As it is well known, Imam Hanife allows the founder to revoke his waqf in his lifetime on the grounds that he may face emergencies. The circulars 57 and 58 put Imam Hanife’s principle into practice. Thus, although the Sudanese waqfs were irrevocable previously, with these circulars they became revocable, subject to the conditions stipulated by these circulars (Abdel Hadi, 1997: 6-7).
Article 58 is of further interest due to the fact that it is concerned with the family waqfs, waqf ahli. The preamble of this Article refers to the problem of the fragmentation of waqf revenues due to the result of population increase. The beneficiaries whose numbers were constantly rising received smaller and smaller revenues and as their numbers increased, co-operation among them became more and more difficult. Consequently, the beneficiaries gradually lost their interest in the maintenance of the waqf properties and tended to concentrate more and more in the distribution of whatever income was generated.
The Hanafi rule, teksîr-taklîl, which was promulgated in this circular, allowing the founder to increase the share of a beneficiary from the waqf’s revenue while reducing that of the others, as he sees fit, has also been the subject of complaints. In any case, the circular introduced the following rules:
The judges are to examine the motive behind the establishment of a waqf and to issue their permission after such an examination.
If any beneficiary makes an official complaint, his/her complaint should be taken seriously by the courts and an examination of the waqf documents should be made. The courts are authorised to interfere if it is proved that the founder’s intention was to harm any one of the heirs.
If the waqf becomes void as a result of this investigation, its property should be distributed among the legal heirs. If the deceased founder had made a will, the shares, which exceed one-third, shall be excluded. If the heirs approve, this shall not be effected.
These rules have a number of important implications. First, the judges are authorised to dissolve a family waqf in response to a complaint by a beneficiary. Second, Article c shows British influence, i.e., the dissolution of the waqf property by distributing it among the legal heirs, which in effect converts it into private property.
The year 1989 witnessed the promulgation of another law; Islamic Awqaf Organisation, 1989. This law is of particular interest in that it demonstrates how the new Islamic regime, The National Islamic Front, has approached the waqf issues. The first task of the new regime was to undertake statistical research into the state of the waqfs in Sudan. The results of this endeavour are presented below.
The new regime claims to approach the waqf issues in Sudan horizontally, by increasing the number of endowments, whether in real estate or in cash, as well as vertically, by better management and education to enhance waqf revenues. The former generally occurred as direct government endowments of real estate and land. This could, however, lead to a difficult legal problem, the ownership of the property to be endowed. When the Ottoman sultans endowed their lands, they were establishing waqfs with privately owned property. When the Sudanese government endows land, however, this is obviously not a private property. Thus, we have a new situation; government owned waqfs emerging also in Sudan. How the Sudanese state has found a solution to this problem is not clear at the moment and calls for further research.
In Turkey, government owned waqfs were permitted by the secular 1967 Law. Donations by the public, constitute bulk of the corpus of such waqfs and in the Islamic Republic of Iran, confiscated properties of the previous regime were endowed as government owned waqfs.
The vertical approach has taken the form of enhancing the consciousness of the population through the media and by introducing waqf jurisprudence in to educational syllabus. All of this has led to a resurgence of waqf establishment in the form of real estate or cash.
The vertical approach was boosted by another law promulgated in 1991, the so-called, Personal Status Law, which carried further the Hanafi influence by introducing more formally, the so-called, ten conditions mentioned above. Furthermore, the revocability is restated in a more formal and definite form and the procedure is simplified. Accordingly, the founder is allowed to revoke his waqf if;
His revocation is stated in a legal notification
It is in the form of direct expression
Legal notification of the Shariah Court is obtained.
Moreover, Article 342 has confirmed the right of the court to dissolve a family waqf.
As part of its revolutionary approach to the waqf issues, the new regime has also restored the confiscated properties of the waqfs by the earlier governments. A genuine and sincere interest by the new regime demonstrated by the establishment of waqfs by the government, thorough application of the more lenient Hanafi law and expediting the establishment of new waqfs by introducing the concept of revocability, all helped to restore the waqf system in Sudan. Still another boost to the system was provided by allowing the rents of the waqf properties to climb up from ridiculously low levels to the prevailing market rates.
A most interesting and ambitious project of the Sudanese waqf system should be mentioned here. This is the establishment of the Great Awqaf Company in 1995 financed by donations from the public. Although it is claimed that the original idea was conceived by Hassan A. El Turabi who was the Head of the National Islamic Front, establishment of a large waqf with public donations is by no means a recent invention. An earlier and an enormously successful example of such a case has been observed during the final years of the Ottoman Empire when Sultan Abdülhamid II initiated a donation campaign with the purpose of building the famous Hejaz Railway (Usul, 1999). The capital of this enterprise was donated by the Ottoman public as well as by the pious Muslims from all over the Islamic world. The railway, when completed, was hailed as the only one of its kind that did not have debts, or interest payments and began to enjoy profits as soon as it became operational (Usul, 1999: 12-13).
Whether Turabi was inspired by the Hejaz Railway or just reinvented an old idea, he envisaged that this company would have branches all over the Sudan and the capital would be provided by private donations. The value of shares was kept deliberately low, 1,000 Sudanese pounds (US$ 0.58) in order to maximise public participation. Starting with the tribal chieftains, a national mood of mobilisation prevailed and on the 18th May 1995 the company was established with a paid up capital of 10 billion pounds. Thus, the Great Awqaf Company is essentially a large cash waqf. The basic aim of the company is to popularise waqf establishment throughout the country. Other targets are as follows:
To implement social justice in the community
To encourage spending for charity
To invest the cash capital to ensure its steady and sustained growth
To provide services for Sudanese pilgrims.
To be involved in infrastructure projects
To build mosques, hospitals, schools and homes for the senior citizens.
To establish affiliated joint-stock companies:
To have them implement its engineering projects
To share in their profits and enhance its own revenue
The headquarters of the company is in Khartoum. The company has two accounts, one in hard currency and the other in local. It also has a list of contributors who have pledged to purchase the shares. These shares have already been sold to these founders. Some shares were also sold off to the Sudanese expatriates employed in the Gulf States, who paid in hard currency. Thus, the combination of the structures of a cash waqf with that of a joint-stock company can also be found in Sudan. It is an exciting combination from the point of view of the evolution of financial organisations and has previously been observed in Turkey. The performance of this company, together with its counterparts in Turkey, need to be closely monitored. For, if successful, they may well provide an example to the rest of the Islamic world.
It has also been reported that an affiliated waqf company specialising in construction has been founded. The basic purpose of this company is to restore old waqf buildings as well as to build new dwellings. The finance is secured through musharaka al-mutanakisa, a modern method of finance used by Islamic banks particularly for construction sector investments (Ismail, 1998).
To conclude, Sudan provides a fascinating example of how the waqf system can be restored by a regime, which is not hostile to it.
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.