Reports
MEMORANDUM TO
THE UNITED NATIONS HUMAN RIGHTS COMMISSION
(GENEVA)
ON SUDAN PENAL LAW
December 26, 2001
The Government of
Sudan continues to enforce cruel physical punishment on the Sudanese citizens
in gross violation of international human rights norms. Death, amputation
of limbs, and flogging are executed according to Sudan Penal Law 1991,
which is deeply rooted in the notorious September Laws 1983 of the defunct
dictator Ja'far Nimeiri. SHRO-Cairo has strongly called for abrogation
of the penal code and the establishment of a new penal law based on international
human rights norms. The Organization republish this memorandum that was
repeatedly addressed to the United Nations Human Rights Commission and
the International Community to support the struggle of the People of Sudan
in this regard.
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 inquisition actions serious deterioration in the
public tranquillity, 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 administrative
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, thousands 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 tranquillity, 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 Sudan Criminal 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-constitutional,
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 protection 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 exile 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 corporate 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 affairs, 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:-
- 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.
- 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.
- 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.
- 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.
- 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.
Addressed to:
The People of Sudan
at Home and Abroad
National Democratic
Alliance (Sudan)
Sudan Government (Khartoum)
CC:
Mr. Kofi Annan, UN
Secretary General
United Nations Human
Rights Commission (Geneva)
Ms. Mary Robinson, UN High Commissioner for Human Rights
The International Criminal Court (Rome)
UN Special Rapporteur on Sudan
America Envoy to
Sudan
Human Rights Watch (Africa)
Endowment for Democracy
Amnesty International
All Human Rights Groups
The IGAD Friends
US Permanent Mission
to the UN
UK Permanent Mission
to the UN
SHRO-Cairo is a Sudanese human rights and democracy entity. The organization
is fully committed to the struggle for the preservation of human rights
in accordance with international human rights norms, independently from
any government or opposition group.
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