Forbidden testimony

“Go and look for a Muslim to give evidence, this is a Christian witness and his testimony is inadmissible.” This is what a judge in the Egyptian family court in Alexandria Governorate told Soliman Shafik, an Egyptian Christian who had come to testify in an inheritance case. The judge’s words came like a “thunderbolt” to Shafik, who left the courtroom “broken”, while the lawyers and clients quickly went to find a Muslim witness, even if it was just someone sitting in the café next to the courthouse.

The Soliman Shafik incident is no isolated case. The testimony of Christians in Egypt in general, is regularly rejected in family courts on religious grounds, in violation of the constitution and of international covenants signed by Egypt. This reinforces the feeling among most Christians that they are “second-class citizens.”

The moment that his testimony was rejected in court has never left Shafiq. It may have had a more negative impact on him than on others because he is primarily a researcher in minority affairs, and is well aware of how serious the consequences of negative discrimination against fellow citizens can be. Since the 1980s, Shafik has been researching and studying the conditions of religious minorities - not only in Egypt, but also in other Arab countries like Lebanon and South Sudan.

After this incident, Soliman Shafik decided to look into the discrimination faced by Christians in Egypt, and try to put a stop to it by supporting human rights organizations working to combat it. According to Shafik, Egyptian Christians face discrimination not only in the courts, but also in universities and in various professions, such as gynaecology, the judiciary and others.

Although Sharia courts were abolished in Egypt in 1955, Islamic law is still the primary source of legislation for the majority of Egyptian laws. Egyptian judges in the family courts therefore rely on Islamic jurisprudence, which withholds the testimony of Christians in personal status cases involving Muslims, based on the interpretations of jurists, which appear to rule out testimony of non-Muslims against Muslims.

However, the opinion of Sheikh Mohamed Abdullah Nasr, a scholar at Al-Azhar, is that a fatwa [legal ruling] by a jurist is not binding on the state, even if the laws of that state follow Islamic law. Sheikh Abdullah Nasr explains this by saying that Imam Abu Hanifa - who issued the fatwa prohibiting the testimony of a non-Muslim against a Muslim – advocated the use of personal opinion and the application of reason. Therefore, his ruling could either be accepted or rejected.

According to a study entitled “The History of Litigation in Egypt,” Sharia courts were established during the Ottoman era to deal with all civil, commercial, and criminal disputes, as well as personal status cases. In 1856, “local judicial councils” were established, followed in 1879 by “mixed courts”, which operated until 1883, on the basis of French law. After that, regular courts were established to take on many of the powers of the Sharia courts. Sharia courts no longer had jurisdiction except over personal matters.

The Sharia courts were completely abolished under the 1955 Law on the Unification of Judicial Bodies, and their functions were transferred to regular courts. These now hear personal status cases in accordance with the provisions of the Sharia, and their judges graduate from both Sharia faculties and law colleges.

Judge Counselor Essam Rafaat, a former vice president of the State Council and head of the Adala Law Firm, said that he had personally witnessed his fellow judges rejecting the testimony of Christians in court, relying on the erroneous principle that “a non-Muslim cannot exert authority over a Muslim” - one of the most dangerous ideas prevalent in Egypt’s personal status courts.

Judge Rafaat argues that the ruling that “a non-Muslim cannot exert authority over a Muslim” is corrupting to society. If it were to be implemented, then the minister Boutros Ghali, (ex foreign minister of Egypt) would not be able to refer an employee accused of negligence to the legal authorities, because “a Christian cannot exert power over a Muslim.” And the courts would have to cancel all cases of corruption, murder, drugs, and prostitution, in which Christian police officers had any part, since police statements are a kind of testimony.

According to Pope Tawadros, Pope of Alexandria and Patriarch of the See of St. Mark, there were around fifteen million Christians in Egypt in 2018. Based on the 2022 Report on International Religious Freedom, issued by the US State Department’s Bureau of International Religious Freedom, the US government estimates the population of Egypt at 107.8 million (mid-2022 estimates). Most experts and media sources in Egypt agree that about 90 percent of the population are Sunni Muslims, and ten percent Christians.

A 2002 religious freedom report from the US Embassy in Egypt states that nearly 90 percent of Egyptian Christians belong to the Coptic Orthodox Church, while other Christian sects together make up less than two percent of the population. These include Anglican/Episcopal, Armenian Apostolic, Catholic (Armenian, Chaldean, Melkite, Maronite, Latin, and Syrian), and Orthodox (Greek and Syrian).

International monitoring reports on the situation of Copts in Egypt, including those by Human Rights Watch, affirm that Christians suffer discrimination. This includes restrictions on the building of churches and threats to their personal safety, through attacks on Christian villages, families, and churches, as well as discrimination in the granting of opportunities from playing football to finding jobs, or leadership roles in the judiciary or government ministries.

Lawyer Yasser Saad has witnessed many instances where the testimony of Christians was refused in cases involving Muslims before the family courts in the Shobra district of Cairo, which has a high density of Christians and more than ten major churches. Saad was both a party and a legal witness in two cases in the Zananiri Court of the Rod El Farag division, which comes under Shobra district. The first case was in 2007, and the second in 2014, Both were related to testimony concerning inheritance.

Concerning one of these cases, Yasser Saad says: “During examination of a claim in the Zananiri court, we were surprised to hear the judge refuse to consider the case because one of the witnesses was a Christian. We tried to persuade him in a friendly way that refusing to hear the Christian’s testimony was illegal, and there was nothing in the constitution to support it. But he stuck resolutely to his position, demanding that the plaintiffs find an alternative Muslim witness as soon as they could.”

In both cases, Saad proposed to the clients filing a complaint against the judge for violating the constitution. But they refused, fearing that this would cause “trouble”, given the sensitivity around making any complaint about their testimony being rejected and their feeling of discrimination.

Inheritance notifications – the legal term for inheritance cases in Egypt - are based primarily on witness testimony. Saad argues, therefore, that not accepting the testimony of Christians in such cases not only infringes their rights as citizens, but also harms people’s interests and causes them distress. This is because inheritors fail to receive what is due to them financially, whether from government bodies or private organisations, like private banks, private hospitals, and others.

According to lawyer Yasser Saad, there is nothing in the Egyptian Law of Evidence in Civil and Commercial Matters No. 25 of 1968, that authorises rejection of Christian testimony in cases involving Muslims in Egypt. According to Article (86): “The witness must swear an oath to tell the truth and nothing but the truth, otherwise his testimony will be invalid. And the oath will be made according to the conditions specific to his religion if he requests it.” This is an explicit acknowledgment that testimony and an oath from non-Muslims is acceptable. Article (82) also states that: “It is not permissible to reject a witness, even if he is a relative or an in-law of one of the litigants, unless he is incapable of reasoned judgement.”

According to Saad, there is nothing to prevent a Christian giving testimony. Some judges, however, adhere closely to Hanafi doctrine, the basis of Egyptian legislation, which says that witnesses must be two “just men”. According to Abu Hanifa, a just witness must be a Muslim, and some judges are of the opinion the description “just” indicates that the witness must necessarily be a Muslim.

Saad explains that, according to Judicial Authority Law No. 46 of 1972, a complaint can be made against any judge at the Judicial Inspection Directorate in the event of a violation of the law. But the problem is that such a procedure is financially costly and no clients in such cases are prepared to waste years going through the courts in a subsidiary case against the judge, which means harming their original case and their financial interests.

The author of this report tried to find out about other cases of Christians whose court testimony had been rejected, but she always ran up against the same response: “We will ask our priest first,” indicating that they must first consult the Church. In the end they just disappeared without telling her about the discrimination they had experienced.

The majority of Christians in Egypt are afraid to talk about sensitive issues like these. But, according to Yasser Saad, the Church deliberately ignores this issue, despite its importance and how it impacts peaceful coexistence between religions in Egypt.

To find out the Church’s viewpoint, we contacted Father Musa Ibrahim, spokesman for the Coptic Orthodox Church in Egypt, and asked to meet him so he could respond to the evidence obtained. At first, the reporter contacted him via WhatsApp, and he sent her his email address asking for more information about what her investigation was covering. But he failed to respond to the email she sent. The reporter then sent him an official letter from ARIJ asking him to meet her or provide written answers to her questions. Up to the date of publication of this investigation we have received no response.

Patrick George - a former Egyptian researcher at the Egyptian Initiative for Personal Rights, and currently a researcher at the University of Bologna in Italy - commented on the Church’s failure to respond to the letter we sent, saying: “It’s better to leave the Church out of this dispute and confine its role to religious affairs. We Christians are Egyptian citizens, and we must claim our rights by law like any other citizen. If a Christian files a lawsuit against this type of discrimination, then it can be stopped. But we are not making enough efforts to win back our rights.”

Makarios Lahzy, a Christian lawyer from Sohag, had his testimony rejected at the Ministry of Justice offices in Cairo, where he was preparing a civil marriage contract for a friend of his at the Foreign Marriage Office. While he was at the ministry, a Muslim citizen asked him to witness his marriage to a foreign woman. Makarios presented his identity card to the ministry official, who, once he noticed the entry in the space marked religion, handed Makarios back his card and asked for a Muslim witness instead.

Makarios says: “What struck me particularly was the anger and shock shown by the foreign bride after they refused me as a witness. She asked whether, if her Christian brother had come along as a witness to her marriage to a Muslim, he too would have been rejected? And she asked if this really was a civil marriage office at all?”

Makarios was left with a clear feeling of discrimination, which he described by saying: “In general, I felt hurt. But I have become accustomed to being discriminated against as a Christian in Egypt, so I handled the situation professionally and got over it. But I was left with the idea that a Christian in Egypt is seen as less than a Muslim and not a full citizen. This certainly gives rise to major problems over the notion of ​​citizenship.”

Makarios was a witness to another case of discrimination against a Christian witness, when he was representing a client from Shobra, a district with a high percentage of Christians. The client brought along two witnesses from among her neighbours. As soon as the judge found out the identity of the two witnesses, he decided to postpone the case. So Makarios was then forced to bring two other Muslim witnesses.

Makarios concluded that the judge had used a Sharia ruling, based on the third article of Law No. 1 of 2000, which states: “If there is no relevant text in the accompanying law or laws in force, it is permissible to fall back on the closest applicable opinions from the doctrine of Imam Abu Hanifa.”

While admitting that changing this situation is far from easy, Makarios calls for there to be a clear statement in law permitting Christian testimony, so that judges do not resort to Islamic law. For this to happen, he explains that a witness whose testimony has been rejected must take out a court case, so that there can be a referral to the Supreme Constitutional Court to amend the law.

The Egyptian Initiative for Personal Rights (EIPR) is used to documenting cases of discrimination based on either gender or religion, and has produced several studies on this issue. We contacted lawyer and EIPR researcher Hoda Nasrallah, who pointed out that a fatwa - issued by Dar Al-Ifta, and published on its official page – states that, in a case involving a Muslim, only another Muslim can be a witness. And there are many cases of a judge rejecting a Christian’s testimony on this basis. But the EIPR has not been able to file a lawsuit against the “unconstitutionality of this approach” because the judge’s rejection of a Christian’s testimony is normally made verbally and is not recorded in the minutes. The judge postpones the case, without noting in the official records the reason a Christian’s testimony was refused.

Hoda Nasrallah says: “In 2014, a Muslim woman, who had suffered beatings, marital violence and other abuse, went to court to obtain a divorce based on the harm she had suffered. The witnesses to the incidents of violence against her were her neighbors, living in the same building. The woman was surprised when the judge rejected the testimony of the witnesses she had brought, because they were Christians.”

The EIPR has documented several incidents where the testimony of Christians was refused in cases involving Muslims. In one, which occurred in June 2021, the testimony of Egyptian Christian citizen Hani Riyad was rejected in an inheritance case involving a Muslim.

In 2017, the EIPR documented a court’s refusal of the testimony of a Christian citizen in a case of inheritance by the mother of a Muslim citizen, Mahmoud Ezzat Al-Alayli.

Nasrallah argues, however, that the fact that there is no court case pending over the rejection of testimony from a Christian, because of their religion, prevents this issue being considered by the Supreme Constitutional Court: “So far there has not been a single case brought against a judge for rejecting the testimony of a Christian, so I cannot appeal the case. And the EIPR does not have the legal standing to bring such a case.”

Patrick George - the researcher at the University of Bologna in Italy - says that, when he worked at the EIPR in 2019, he received seven to eight verbal complaints a month from Copts in different parts of Egypt, whose testimony had been rejected in court because of their religion.

George adds that most of these complaints came from Copts living outside Cairo: “The farther you go from the capital, the more discrimination there is against Christians. The sense of being discriminated against is difficult for them to deal with. And we lawyers, journalists, and politicians are not doing enough to stop it. We have left judges to their devices, so that they can simply discriminate in violation of the rights of citizenship."

Patrick George was arrested in 2019, over an article he published on the Daraj Media website documenting cases of discrimination against Christians in Egypt. In the article he discussed the rejection of Christian testimony in Muslim court cases. Patrick believes that political and judicial support is important in stopping this from happening, so that those who object to it are not seen as provoking sectarian division.

This type of discrimination against Christians, in not accepting their testimony in court, is a violation of the international covenants and commitments which Egypt has ratified.

The signing of this “international covenant” therefore, makes it obligatory for the state to make available to any complainant a competent judicial, administrative or legislative authority, or any other authority stipulated in the state’s legal system, to rule on the rights that have allegedly been violated. The state must also provide the means to make a legal complaint, while the judiciary must ensure that the competent authorities enforce rulings made in favor of complainants.

Despite all the legal guarantees and international treaties Egypt has signed, Christians still face daily discrimination in courtrooms and before the judges, who fail to apply the principles of “citizenship and equality.” The result is that Soliman Shafiq and other Copts find themselves “second-class citizens.”

This report was completed with support from ARIJ