African Centre for Justice and Peace Studies ACJPS | المركز الافريقي لدراسات العدالة و السلام
(08 June 2017) Mustafa Ismail Mohamed, 23 years old, was sentenced to death on 29 May 2017 by the Children’s Court in Nyala for the rape (article 45 (b) of the 2010 Child Act) and murder (article 130 of the 1991 Criminal Act) of a 6-year old girl. The African Centre for Justice and Peace Studies (ACJPS) is concerned that the defendant was subjected to an unfair trial because he was not provided with adequate legal representation. Mr. Mohamed’s lawyer was only instructed to represent him on the day of the trial and thus had not prepared any defence.
On 17 May 2017 at 7am, the victim, a 6-year-old girl, was sent by her father to buy milk from a shop in the Texas neighbourhood. When the girl did not return hours later, her father began searching for her. The residents in the area joined in the search. The father went to the police and reported his daughter missing. He told the police that he suspected that his daughter was being held in the shop from which he had sent her to buy milk. A search and an arrest warrant were issued by the Office of the Prosecutor. When the police arrived at the shop, it was closed and so they forced it open and found the girl lying in the middle of the shop, dead. The owner of the shop, Mr. Mohamed, was arrested the same day. The prosecution claimed that when the victim arrived at Mr. Mohamed’s shop, he pulled her inside, locked the doors and then raped her. The girl apparently suffocated during the rape.
On 22 May 2017, the case was referred to the Children’s Court in Nyala and the first hearing was set for 24 May. During the first and only hearing held on 24 May, the Court heard testimonies on behalf of the Prosecutor from the investigator, a doctor, the father of the victim and 6 additional witnesses. The defendant’s lawyer, Mr. Tahir Mustafa Ahmed Mukhtar, a Prosecution Attorney from the Ministry of Justice and the Head of the Legal Aid Department of the State of South Darfur, was assigned to represent the defendant. Mr. Mukhtar, however, did not make any submissions on behalf of the defendant. He revealed to the Court that he had only been informed about representing Mr. Mohamed that morning. He went on to state that he did not want to represent Mr. Mohamed because he believed that Mr. Mohamed was guilty but had to be present in court because it is his duty. He instructed the court to ask Mr. Mohamed and not him for his plea. Mr. Mukhtar told the court that if Mr. Mohammed entered a guilty plea, he would rest his case but if Mr. Mohamed pleaded not guilty, he would not represent him and highly doubted that anyone else would take on the case. The court then asked Mr. Mohamed to submit his plea and he plead guilty. The court then adjourned the hearing to 29 May 2017 for the judgement and sentencing. On 29 May, the court found Mr. Mohamed guilty of rape and murder and sentenced him to death by hanging.
The right to a fair trial is enshrined in articles 14 of the International Covenant on Civil and Political Rights (ICCPR), 7 of the African Charter on Human and Peoples’ Rights (ACHPR) and 34 of the 2005 Interim National Constitution of Sudan. The right to a fair trial includes several guarantees and one of them is adequate legal representation. It is clear from the above that Mr. Mohamed was subjected to an unfair hearing due to inadequate legal representation. Firstly, all detained persons be granted prompt access to legal representation either of their own choosing or the state’s. Mr. Mohamed should have been assigned a lawyer immediately after his arrest, especially as it was a capital case. In this case, however, Mr. Mohamed met his lawyer for the first time at trial on 24 May, 7 days after he was arrested.
Secondly, the right to a fair trial states that adequate time should be provided to the accused to prepare a defence. In this case, Mr. Mohamed only met his lawyer on the day of the trial, which clearly did not allow adequate time to prepare a defence.
Thirdly, paragraph 38 of the ICCPR General Comment No. 32, article 14, right to equality before courts and tribunals and to fair trial provides that where a state provides legal representation, the representative must be effective. In this case however, the representation was ineffective because Mr. Mukhtar should have asked the court for an adjournment in order to give him time to prepare his defence. Mr. Mukhtar did not observe the principle of innocent until proven guilty and showed bias against his client. Furthermore, the UN Basic Principles on the Role of Lawyers state that lawyers must advise their clients on their legal rights, assist their clients appropriately and take legal action to protect their interest(s) and loyally respect the interests of their clients. Mr. Mukhtar did not consult his client and dictated the terms of their working relationship.
Fourthly, in capital cases, it is essential that fair trial guarantees are strictly adhered to due to the nature of the punishment.
In light of this, ACJPS calls on the Government of Sudan to uphold the right to a fair trial and ensure procedural rights for accused persons at all times. ACJPS therefore, recommends that Mr. Mohamed be re-tried, assigned independent legal representation and provided adequate time to prepare his defence.
Lastly, ACJPS condemns the use of the death penalty in all its forms and calls upon the Government of Sudan to impose an immediate moratorium on executions, commute all death sentences and reduce the number of crimes punishable by death with a view to total abolition of the death penalty.
Contact Information:
Mossaad Mohamed Ali/ Emily Cody: +256 779584542/ +256 788695068 (Kampala), or info@acjps.org.
