African Centre for Justice and Peace Studies ACJPS | المركز الافريقي لدراسات العدالة و السلام
(28 May 2018) On 24 May 2018, an appeal was filed on behalf of Ms. Noura Hussein Hammad, a 20 year old sentenced to death for killing her husband in self-defence after he attempted to rape her for a second time.
On 9 May 2018, the Criminal Court of Omdurman Central presided over by Judge Ibrahim Osman sentenced Ms. Hussein to death after finding her guilty under article 130 of the Sudanese Criminal Act, 1991 for the murder of her husband Mr. Abdoh Ibrahim Bashir. Following this, Ms. Hussein was transferred to Omdurman Women’s Prison in Khartoum where she is currently detained in shackles by virtue of her status as a death row inmate.
According to her testimony, at the age of 16, Ms. Noura Hussein Hammad was betrothed to Mr. Abdo Ibrahim Bashir against her will. She was later tricked into participating in a wedding ceremony after the families of the two parties signed a marriage contract for which a marriage certificate was issued in accordance with the law.
Shortly after the ceremony, Ms Hussein and Mr. Ibrahim, a 31 year old, moved into an apartment in Al-Muhandiseen neighborhood, in Omdurman. When Ms. Hussein refused to consummate the marriage, Mr. Ibrahim invited his relatives over to help him solve a marital problem. On the evening 2 May 2017, Mr. Ibrahim’s brother and two cousins, came to the apartment and were informed about Ms. Hussein’s refusal to consummate the marriage. One of them tried to convince her to consummate but she remained adamant. The three relatives proceeded to hold her down as Mr. Ibrahim raped her. The next morning, after the guests had left, Mr. Ibrahim tried to force himself on her again and this time he threatened her with a knife. He pinned her down on the bed and placed the knife between the bed frame and the mattress. As he started to rape her, Ms. Hussein reached for the knife and stabbed him in the back. She stabbed him once in the back and four times in chest, leading to his death.
Later that day, Ms. Hussein’s relative turned her over to the Al-Muhandiseen police, in Omdurman where she was detained until her case was sent to trial. Ms. Hussein was charged with murder under article 130 of the Criminal Act, 1991. Article 130 (2) of the Criminal Act, provides for the penalty of death or imprisonment of not more than 10 years if retribution is remitted. However Mr. Ibrahim’s family insisted on retribution for the death of their beloved one.
The African Centre for Justice and Peace Studies (ACPJS) condemns in the strongest terms the application of the death penalty in Sudan and all laws that prescribe torture or cruel, inhuman and degrading punishments. ACJPS notes that Ms. Hussein was not afforded a fair trial in line with the Interim National Constitution and universally accepted standards.
As a victim of sexual violence, Ms. Hussein was denied an opportunity to lodge a complaint about her rape and thereafter have a medical examination performed to confirm her allegations as well as receive necessary medical and psycho-social support. Instead, the authorities focussed on establishing the crime of murder.
Ms. Hussein was further disadvantaged by the lack of access to legal representation to advise her on her rights during the investigation procedure. Article 135 of the Criminal Procedure Act stipulates the right to be defended by an advocate or state appointed counsel. Article 34(6) of the Interim National Constitution stipulates that, “[a]ny accused person has the right to defend himself/herself in person or through a lawyer of his/her own choice and to have legal aid assigned to him/her by the State where he/she is unable to defend himself/herself in serious offences.” However, Sudanese law does not place an obligation on the arresting officer to inform the arrested person of his or her rights to legal representation nor does it guarantee that this right be exercised at all stages of the proceedings. In practice, access to legal representation usually happens once a case has proceeded to trial.
The African Commission on Human and Peoples’ (ACHPR) Rights Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa clearly set out that the essential elements of a fair hearing include “an entitlement to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings” and the right to be examined by a doctor. In its Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, the Commission stated that persons detained in police custody should enjoy “access without delay to lawyers and other legal service providers, at the latest prior to and during any questioning by an authority, and thereafter throughout the criminal justice process.”
Ms. Hussein was only afforded access to a legal representative at the commencement of the trial. The lack of access to a lawyer or legal aid counsel meant that she could not effectively exercise her right to a defence including her right to remain silent. During the investigation stage, Ms. Hussein was brought before a judicial officer to record a confession, in absence of legal advice. Ms. Hussein’s conviction rested on her confession as well as the circumstantial evidence given by the deceased’s three relatives who assisted the deceased in raping her.
ACJPS believes Ms. Hussein was not afforded a fair trial that is particularly important in cases that could result in deprivation of life pursuant to a final judgement rendered by a competent court.
ACJPS calls upon the Government of Sudan to issue an immediate moratorium on all executions with a view to abolishing the death penalty and to revise all legislation that has the purpose or effect of discriminating against women and other minority groups on account of their personal characteristics.
ACJPS further calls upon the Government of Sudan to:
- Annul the conviction and death sentence against Ms. Noura Hussein Hammad and release her;
- Conduct an investigation into the allegation of marital rape, including investigating the responsibility of Mr. Ibrahim’s brother and two cousins;
- Abolish the practice of placing death row inmates in shackles and ensure that inmates are treated with human dignity and respect;
- Conduct comprehensive legal reform and ensure, among others, the access to legal representation at all stages of criminal proceedings; amend law on legal age of marriage to 18 years;
- Raise the capacity of law enforcement officers to handle cases of marital rape and other forms of sexual violence;
- Prioritize ratifying or acceding to First and Second Option Protocol to the International Covenant on Civil and Political Rights, UN Convention Against Torture, the Convention on the Elimination of All Forms of Discrimination against Women and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
Background
Sudan continues to implement the death sentence. The death sentence is prescribed as an appropriate sentence for approximately 38 crimes under various laws in Sudan which include: the Criminal Act 1991, the Weapons and Ammunitions Act, 1986, the Drugs and Narcotics Act 1994, the National Security Act 2010, the Anti-Terrorism Act 2001, the Armed Forces Act 2007, the Combatting Human Trafficking Act 2013 and the Child Act 2010.
From October 2016 to June 2017, ACJPS documented the sentencing of at least 45 people to death and implementation of at least 6 executions. Executions are usually carried out after the exhaustion of the appeal process and confirmation of the sentence by a higher court.
ACJPS also noted a number of anomalies that do not adhere to fair trial safeguards especially with regard to the right to adequate legal assistance of the defendant’s own choosing at every stage of the proceedings. In trials monitored by ACJPS, defendants were only able to contact lawyers or legal aid after the case file had been sent to the court. This meant that defendants who made confessions during investigation stage had no access to legal advice which is essential to guarantee one’s right to silence as well as presumption of innocence. Sudan’s laws also fail to adequately guarantee access to a lawyer at all stages of criminal proceedings for those in custody.
Death row inmates in Sudan have permanent fixture of handcuffs connected to shackles on their legs for the duration of their stay on death row. Testimonies taken by ACJPS researchers have shed light on how the shackles cause skin chaffing and severe wounds and pain to prisoners. The pain and discomfort is further increased due to the fact that the shackle chains are very short, preventing detainees from being able to stand upright. Detainees have testified to ACJPS that the shackles force them to crouch down when they walk. These restrictive and painful conditions are a permanent burden, as the prisoners are kept chained not only inside the cells, but also when they are working and during visits with families and lawyers.
Contact
Mossaad Mohamed Ali (English, Arabic, Swedish): +256 779584542 or mossaad.ali@acjps.org; Cynthia Ibale (English) cynthia@acjps.org
