Position Statement on the Death Penalty to Sudanese authorities

(16 March, 2023) African Centre for Justice and Peace Studies (ACJPS) was alarmed by a recent execution on death row in January 2023 and two cases in 2022. We oppose the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to execute the prisoner. Like most countries maintaining the death penalty in their law books, Sudan has continuously used the death penalty to punish political opponents, as reported by Amnesty International in a recent report titled “we know that, together, we can end the death penalty everywhere.[1]

Death penalty, the premeditated and cold-blooded killing of a human being by the state in the name of justice, is the most fundamental denial of human rights. It violates the right to life as proclaimed in the Universal Declaration of Human Right, the International Covenant on Civil and Political Rights (ICCPR) and African Charter on Human and People’s Rights (ACHPR). It is the ultimate cruel, inhuman and degrading punishment. There is no justification for the judicial execution of a human being by the state. An execution is an extreme physical and mental assault on an individual. The physical pain caused by the action of killing a human being and the psychological suffering caused by foreknowledge of death at the hands of the state cannot be quantified.

The halting of the operation of the Constitutional Court of Sudan which over sees constitutionality of laws especially those on capital offences has left many prisoners without a remedy. This has delayed justice to the poor majority who await with impatient anxiety for their fate. Detention facilities lack adequate health care and food supplies due to inadequate resources which result in the perpetuation of a poor overall infrastructure of the system. The treatment of prisoners often runs counter to internationally acceptable standards, with those on death row being routinely shackled or subjected to solitary confinement in small cells.

Contrary to Sudan’s commitments to international human rights standards and its own domestic law, the Sudanese authorities have continued to implement the death penalty widely. In 2015, Amnesty International reported that Sudan handed down eighteen death sentences and carried out three executions.[2]

Death Penalty for Juveniles

In May 2019, an 18 year old boy was sentenced to death for a crime he committed when he was still a child, at 15 years old. This was reported by Abdullah Fadil in his sentence to UNICEF as their representative in Sudan.[3]

The 1991 Criminal Act and the Child Act, 2010 are the main laws governing juvenile justice in Sudan. The Child Act defines a child as a person under the age of eighteen and sets criminal responsibility at a minimum age of twelve. Contrary to this, the 1991 Criminal Act of Sudan as amended in July 2021 defines an adult as “a person who attains the age of 18.” Whoever attains 18 years of age shall be deemed an adult even if the features of puberty do not appear Under the 1991 Act, criminal responsibility is set at a minimum age of seven. The Child Act states that the Act shall prevail over any other provision in any other law upon inconsistency. Article 27 (2) of the 1991 Criminal Act, states that: “with the exception of Hudud and retribution (qisas) offences, death sentence shall not be passed against any person, who has not attained the age of eighteen …”

The UN Committee on the Rights of the Child at its forth periodic review expressed serious concerns that despite the adoption of the Child Act, 2010, which prohibits the passing of the death sentence on children, Sudan has continued to abuse the same. The Committee reminded Sudan that the application of the death penalty to children is a grave violation of articles 6 and 37 (a) of the Convention of the Rights of a Child (CRC).

International and Regional laws.

As Ahmed Shaheed, the UN Special Rapporteur on Freedom of Religion or Belief, commented, “under no circumstances could the death penalty ever be applied as a sanction against conduct whose very criminalization violates internationally protected human rights. This was reported by Humanists International.[4]

Article 3 of the Universal Declaration of Human Rights (UDHR) upholds the rights to life, liberty and security of person,
Article 6 of the ICCPR, to which Sudan is a state party, guarantees the right to life
The Convention on the Rights of the Child (CRC), ratified by Sudan in August 1990, prohibits the imposition of the death penalty on persons below eighteen years of age. Article 37 (a) explicitly places an obligation on State Parties to ensure that neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
Article 4 of the African Charter on Human and Peoples’ Rights (African Charter) guarantees the inviolable right to life and further provides a prohibition against the arbitrary deprivation of this right. Like the UDHR, the African Charter is silent on the application of the death penalty.
The African Commission on Human and People’s Rights established the Working Group on the Death Penalty in 2005 by adopting Resolution ACHPR/RES.79 (XXXVIII) mandated among other things to carry out a study on the question of the death penalty in Africa, develop a Strategic Plan including a practical and legal framework on the abolition of the Death Penalty. [5]

Steps towards the abolition

In a significant victory for Sudanese, the government has recently repealed the death penalty for the crime of apostasy and ended the use of public flogging as a form of punishment. The new reform mitigates some of the most extreme aspects of the Sharia Law-influenced criminal justice system. This was reported by Humanists International. [6]

On 16^th December 2022, Kosti Criminal Court in White Nile State presided by Judge Haroun Adam concluded the re-trial of a 20-year-old woman previously convicted of adultery and sentenced to death by stoning. During the re-trial, court found that she was guilty of gross indecency contrary to Article 151 of Sudanese Penal Code, 1991. Her sentence was revised to 6months imprisonment at Kosti prison located in White Nile state. ACJPS published this incidence in an article titled “Update: Six-months imprisonment for a 20-year-old woman previously sentenced to death by stoning for adultery”[7]

ACJPS calls upon Sudanese authorities to:

Abolish the death penalty for all crimes.
Immediately establish an official moratorium on executions with a view to abolishing the death penalty.
Improve the living conditions of death row inmates in prison cells.
Ratify the Second Optional Protocol to the ICCPR which majorly aims at the abolition of the death penalty.
Commute all death sentences to terms of imprisonment.
Incorporate most recently, the UN Human Rights Committee, in its General Comment No. 36 on the right to life, stated that States “should also refrain from executing … parents to very young or dependent children”.
Replace any death sentences already passed on persons under 18 years with an appropriate alternative sanction.
Collaborate with the United Nations, Regional mechanisms and civil society in taking steps towards abolition of death penalty.
Ensure that trials for crimes carrying the punishment of death penalty comply with the most rigorous internationally recognized standards for fair trial. Where that has not been the case, the individual must be given a re-trial in proceedings which comply with these standards, and without recourse to the death penalty.

[1] https://www.amnesty.org/en/what-we-do/death-penalty/

[2] https://www.amnesty.org/en/latest/research/2016/04/death-sentences-executions-2015/

[3] https://www.unicef.org/mena/press-releases/boy-sentenced-death-sudan-crime-reportedly-committed-child

[4] https://humanists.international/2020/07/human-rights-victory-as-sudan-abolishes-death-sentence-for-apostasy/

[5] https://achpr.au.int/index.php/en/mechanisms/working-group-death-penalty-extra-judicial-summary-or-arbitrary-killings-and-enforced

[6] https://humanists.international/2020/07/human-rights-victory-as-sudan-abolishes-death-sentence-for-apostasy/

[7] https://www.acjps.org/update-six-months-imprisonment-for-a-20-year-old-woman-previously-sentenced-to-death-by-stoning-for-adultery/