Articles

August 13, 2001

SHRO-CAIRO MEMORANDUM
TO THE UNITED NATIONS HUMAN RIGHTS COMMISSION (GENEVA)
ON SUDAN PENAL LAW

Throughout the modern history of Sudan, which witnessed succeeding regimes of both democratic and anti-democratic systems of rule, the country managed to respect the rule of law by virtue of statutory laws that, to some extent, realized international human rights norms and did incorporate many important principles in criminal law. This continued until September 1983 when the May presidential system imposed harsh physical penalties, open terms of imprisonment, and other cruel or degrading punishments to suppress people in the name of religion with a political intention to persecute Sudanese nationals, in general, and the indigenous population of the war-affected areas in Southern Sudan and the Nuba Mountains, in particular.

This drastic transformation of Sudan criminal law from a formerly well-integrated modern system of criminal justice into a medieval order against the Will of People caused with the wrongful application it went through via extrajudicial executions and other inquisitional actions serious deterioration in the public tranquility, modes of civil behavior and basic human relations. All this gravely violated the rights of accused persons before Sudan courts or at police stations as well convicts in prisons. The September Laws have been strongly criticized even by the government-oriented Islamic Conference (September 1984) whose resolutions were supportive of a wide national critic by both Muslim and non-Muslim peoples who protested the laws, in principle, for sound political, legal, technical, and adminstrative reasons.

The laws, notwithstanding, provided the authority with a legal tool of state violence to curb Sudanese popular movements from the restoration of civil freedoms and the insurance of the full enjoyment of human rights for citizens all over the country. Under a constant state of emergency, anti-democratic governments, especially the terrorist regime of the June coup, manipulated the harsh penalties of the Penal Law to expand the powers and instances of arbitrary arrest, torture, imprisonment, and death penalty with the sole purpose of suppressing civil rights and public freedoms.

Hundreds of citizens were extrajudicially killed, thousdands were arbitrarily arrested and tortured, and tens of thousands were bombarded and made to suffer displacement and debasement under provisions of the Penal Code that made of any form of peaceful expression, for example journalist activities, works of arts such as poetry, music, or popular songs, or even the statutory crimes against property or minor breaches of public tranquility, etc., punishable crimes against the ruling party as well as major crimes of treason, sedition, or destruction of the national economy. With such a horrible tool of legal suppression, the NIF-controlled government continued to exercise acts of genocide, enslavement, and the many other heinous acts against humanity on our citizens in the war-affected areas.

The same government, furthermore, implemented the SudanCriminal Law not to restrict crime or to remedy the injustices that the NIF/Congress rule increasingly brought to the life of People, but to impose additional suffering on the population using the legal machinery of the law. Chapter 3 of the Penal Law 1991 allows execution of juveniles and the elderly (Section 27). Chapter 5 allows state leaders to kill political opponents if they "destroy" or "endanger" the constitutional regime, which, in actual fact, is nothing but the non-democratic, non-contsitutional, illegitimate military coup of June 1989. Changing one’s belief or apostasy is made a crime punishable with death in gross violation to acceptable religious orientation and the Universal Declaration of Human Rights (Article 18).

The death penalty that previously had been implemented only for the most serious crimes with many legal limitations and guarantees to insure the due process of justice, became almost a daily practice for all types of private courts, military tribunals, and even the judicial bench as all have been subjugated to the highest executive power of the state, the military leadership that seized power in coup de etat on June 30th, 1989. With the attainable legal opportunities to suppress and persecute political opposition under provisions of the Penal Law, the military rulers ruled Sudan with iron and blood in full collaboration with the National Islamic Front (NIF).

The NIF minority political party has made of itself the only ruling Congress Party, de facto, despite all hollow claims of democratic transformation by the military regime. The NIF anti-democratic war-mongering ideology and reactionary system of rule that so ruthlessly ravaged Sudan, nonetheless, could only perpetuate an ongoing reign of terror, obstruct the due process of justice, and undermine the rule of law. This state of affairs makes it impossible to reform Sudanese criminal justice system unless the whole legal, executive, and political systems of the state are completely restructured and fully democratized.

There are grave consequences ensuing in the dehumanizing implementation of the September Laws 1983 which, although partially suspended by both the April Uprising Government in 1985 and the succeeding democratically-elected government (1986-1989), have been invigorated and formally instated with additional harsher penalties by the June regime. Earlier in 1984, the anarchic implementation of these repressive laws encouraged the authority to apply death penalty on the Sudanese Islamic scholar Mahmoud Mohamed Taha, whose age was above 70.

Although Ustaz Taha lawfully rejected the court procedure, he was not offered legal defense as proscribed by law. He was subsequently killed with criminal intent by the judges who based the sentence on a false accusation of apostasy that was not even included in provisions of the notorious laws.

The Penal Law 1991 the government legislated endorsed all of the provisions that had been earlier included in September Laws 1983 concerning physical punishment. The government issued another act as a code of criminal procedure. Both penal code and the criminal procedure were enjoined as Sudan Criminal Law that, taken together, constituted gross violations to international human rights norms. The law, equally important, contradicted significant aspects of modern Islamic jurisprudence on principles of justice that could have been adequately consulted to establish a common understanding with international human rights norms.

A few examples suffice to delineate the facts in question. In the 1991 Penal Law emphasis is placed on death penalty as a capital punishment without adequate observance of the international rules of protection to safeguard the right of all convicts in the face of the cruel and inhumane nature of the penalty

Many accused persons were frequently taken by suspicion, denied legal consultation, and easily placed under capital punishment. In the present time, the grievous fate that awaits all Sudanese sentenced with the death penalty in the absence of real guarantees of defense, appeal, and due process of justice is undeniable. The government empowered a judicial system that has already been relegated to the executive and political powers of the head of state who appoints judges screened by the NIF/Congress ruling party, with powers of interpretation and formulation of new crimes before or in the course of trial.

This unprecedented practice removed the protectional guarantees for the accused and has excessively obliterated principles of criminal procedure according to international law. It did make it possible for government to terrorize citizens with any form of accusation, even the simplest or minor breach of law, for any judge or member of a private military court is authorized to define and impose new crimes apart from statutory law on the basis of discretion to inflict death penalty, sequestration of property, and severe terms of imprisonment or exilement on the accused. What is more, torture is quite acceptable by the NIF law of evidence against both religious teachings and international norms.

Physical punishments such as crucifixion, stoning, and chopping off limbs have been frequently used for crimes for which alternative non-physical treatment could have been legally and appropriately applied in accordance with the modern jurisprudence of international human rights norms. Most recently, massive acts of genocide and displacement have been daily exercised by the ruling regime to suppress Sudanese citizens in the war affected areas for allegations of taking part in the very war that the ruling NIF/Congress and military wittingly inflicted and deliberately escalated in increasing collaboration with profit-makers Talisman and China corporates in Sudan oil fields at the expense of the indigenous population.

Amputations are nowadays resumed against poor citizens who are deprived of the means to hire lawyers or pay compensation for claimants. Two women have been sentenced to death for crimes that used to be moderately handled under the Sudan Penal Code of 1925 and 1974, as well as the Sudan Bar Association’s well-thought draft of 1986 which further recommended humanitarian handling of such crimes. Awadia Alsir, a public service employee, was convicted with embezzlement of public funds from a bank she worked for in which case appropriate penalty could have been fine or imprisonment. And yet, the accused was astonishingly sentenced to death.

Another woman, Muna Mohamed Ahmed, was convicted under section 130 with murder. She was sentenced to death despite the fact that she "denied, could not afford a lawyer, and was not legally represented at her trial" as reported by the Sudanese Victims of Torture Group (SVTG: March 20, 2000). Arbitrary arrest and security interrogation continued to occur under code of criminal procedure as well as the notorious Public Order Courts that rarely abide the code of criminal procedure. Until this moment, the Constitutional Decree No. 2 provides a legal basis for the most aggravating violations of human rights and public freedoms, irrespective of all attempts by regime officials in the ministry of external affaris, attorney general’s chamber, and chief justice office to rationalize the terrorist nature of the regime and its persecution laws. In these past few days, moreover, Sudanese human rights activists, including Dr. Toby Madut and Mr. Ghazi Suliman, were repeatedly arrested and tortured for the criticisms they made against the gross human rights violations the regime continued to commit.

In the light of these facts, the Sudan Human Rights Organization Cairo Branch (SHRO-Cairo) irrevocably demands:-

(1) Strong condemnation of Sudan Government for the brutality, savagery, and unwarranted application of a wasteful version of Penal Law that the government politically pursued to suppress our citizens despite all possibilities to legislate and implement a modern system of criminal justice by the competent authority on the basis of international human rights norms for the insurance of the dignity and respect of Sudanese all over the country.
(2) Immediate abolition of death penalty and all of the other physical punishments by abrogation of the Sudan Criminal Law, including the existing Penal Code and Law of Criminal Procedure (1991) both of which are based on the notorious September Laws (1983), the expansion of death penalty, and removal of international guarantees of criminal justice.
(3) Prosecution of the legislative bodies and jurists who with full intention and premeditation wrote, pursued, and endorsed the September Laws of 1983 and the 1991 penal and criminal law despite all scholarly criticisms and the national protest the People of Sudan continuously raised for abrogation of these laws.
(4) Stoppage of all implementations of the Penal Law on the present accused or convicted persons whose cases should be alternatively handled in accordance with the draft of criminal law prepared by the Sudan Bar Association (1986), provided that a new criminal law be legislated with full adherence to international human rights norms to tackle the pending cases.
(5) Prosecution of NIF party officials and all their counterparts in government service who took any part in the acts of genocide, extra-judicial killing, arbitrary arrest, torture, and all crimes against humanity the regime committed against citizens since June 30th, 1989, to the present time.

Both Sudanese and non-Sudanese experts have strongly recommended radical reforms for the existing laws. Memorandums submitted to the African Commission on Human Rights, legal studies prepared by the Arab Lawyers Union, Arab Organization for Human Rights, Human Rights Watch (Africa), and the Lawyers Committee for Human Rights stressed the urgent need to reform Sudan criminal justice system and judiciary. Significant measures include the reappointment of all judges and other law-enforcement officials who had been unlawfully dismissed by the NIF military rulers since June 30, 1989.

The Steering Committee of Sudanese Organizations Abroad (SCSOA) has already raised a detailed Memorandum to the International Criminal Court for prosecution and trial of the top leaders of state officials, namely, Omer Hassan Ahmed Al Bashir, head of state, and Dr. Hassan Dafa’-Allah Al-Turabi, NIF/Congress party leader and all their accused accomplices. The NDA Secretariat for Legal Affairs has equally kept detailed information on the crime-doing of these officials for which an independent judiciary has to be set-up for the due process of justice. International specialist agencies have equally raised serious questions about Sudan criminal law.

Signed,
Dr. Mahgoub El-Tigani
President, SHRO-Cairo

CC:

United Nations Human Rights Commision (Geneva)
Ms. Mary Robinson, UN High Commissioner for Human Rights

Mr. Mohmed Osman Al Merghani, President, National Democratic Alliance (Sudan)
Sudan Government (Khartoum)

The International Criminal Court (Rome)
Dr. Leonardo A. Franco, UN Special Rapporteur on Sudan

Human Rights Watch (Africa)

Amnesty International

All Human Rights Groups

Mary Robinson, UN High Commissioner for Human Rights:
E-mail: ecu@un.org

United Nations High Commissioner for Human Rights:
Palais des Nations, 8-14 avenue de la Paix CH 1211, Geneva 10,
Switzerland
E-mail: webadmin.hchr@unog.ch,
Fax: (4122) 9170213

Kofi Annan, UN Secretary General
Postal Address: Room S-3800, United Nations Headquarters,
New York, NY 10017
E-mail: ecu@un.org

International Court of Justice:
Peace Palace, 2517 KJ, The Hague
The Netherlands, E-mail: mail@icj-cij.org,
Fax: (31) (0)70 364 99 28

The International Criminal Court, Rome, Italy:
E-mail: rome@lists.advocacynet.org

Mary Robinson,
UN High Commissioner for Human Rights:
Palais des Nations, 8-14 avenue de la Paix CH 1211, Geneva 10,
Switzerland
E-mail: webadmin.hchr@unog.ch,
Fax: (4122) 9170213
E-mail: ecu@un.org (Mary Robinson)

The International Criminal Court, Rome, Italy:
E-mail: rome@lists.advocacynet.org

Dr. Leonardo A. Franco, Special Rapporteur:
E-mail: francojl@leman.com
Tel: 41 22 917 1883 Fax: 208-1467-1587-1786
Fax: 41 22 917 0463

Kofi Annan, UN Secretary General
Postal Address: Room S-3800, United Nations Headquarters,
New York, NY 10017 E-mail: ecu@un.org

International Court of Justice:
Peace Palace, 2517 KJ, The Hague
The Netherlands, E-mail: mail@icj-cij.org,
Fax: (31) (0)70 364 99 28

R. Coomerswamy, Reporter on Violence against women:
E-mail: ecu@un.org

The United State Government
Office of Bill Clinton, The President of USA:
Email: president@whitehouse.gov

Madeleine K. Albright, Secretary of State of the US:
Email:president@whitehouse.gov

US PERMANENT MISSION TO THE UN: usaun@undp.org

UK PERMANENT MISSION TO THE UN: gbrun@undp.org

Sudan Representative to the United Nations:
Mr. Elfatih Erwa:
Fax: 573-6160 Tel: 573-6033, 6035, 6038, 6039
Email: sdnun@undp.org

The Sudan Desk, USA: Phone: 202-647-9742
Redress Trust, The United Kingdom
E-mail: redresstrust@gn.apc.org

UN High Commission for Human Rights:
Email: dpremont.hchr@unog.ch

Antooine Benard FIDH, The Observatory in France:
Email: fidh @hol.fr

Andy Mawson, Director of Amnesty International:
Email: amawson@amnesty.org

The International Watch:
Email: 100536,153@compuserve.com