African Centre for Justice and Peace Studies ACJPS | المركز الافريقي لدراسات العدالة و السلام
(17 November 2015) A 26-year-old Sudanese man is at risk of a court-ordered amputation of his right hand in Khartoum for the theft of a laptop computer. He was convicted in an unfair trial before Jebel Awliya Criminal Court, just south of the Sudanese capital, Khartoum, on 22 October 2015, and transferred to the death penalty section of Kober prison in Khartoum on the same day to await the implementation of the amputation penalty.
A judge at Jebel Awliya Criminal Court convicted Algasim Abdulhamid Adam under Article 170 (Capital Theft) of the 1991 Sudanese Criminal Act, and sentenced him to the amputation of his right hand from the wrist under Article 171 (Penalty for Capital Theft) of the same law. Adam was convicted and sentenced to the amputation without legal representation in breach of Sudanese and international fair trial and human rights standards. Article 135(3) of the 1991 Sudanese Criminal Procedure Act requires the Sudanese Ministry of Justice to appoint a defence lawyer for any person accused of an offence that carries a punishment of 10 years or more imprisonment, amputation or death. His mother has since appointed a lawyer who submitted an appeal to the Khartoum Appeal Court on 29 October.
Amputation and other forms of corporal punishment in Sudan, including lashings and stoning, breach the absolute prohibition of torture and cruel, inhuman or degrading punishment or treatment that Sudan has committed to as a State party to the African Charter on Human and Peoples’ Rights (African Charter) and the International Covenant on Civil and Political Rights (ICCPR). Sudan’s own Interim National Constitution of 2005 prohibits torture and commits to securing the rights and freedoms set out in international treaties to which Sudan is a party.
The African Centre for Justice and Peace Studies (ACJPS) condemns the sentence and calls on the Government of Sudan to:
- Commute this and all other corporal punishment sentences;
- Uphold the right of the accused to receive a fair trial and have adequate legal representation in accordance with Sudanese and international law;
- Immediately stop imposing amputations and all other forms of corporal punishment, such as stoning and flogging, and bring Sudanese laws in line with Sudan’s regional and international law commitments to prohibit torture and cruel, inhuman or degrading treatment or punishment.
Background
Capital Theft is defined in Sudanese law as theft of property which exceeds Nisab – an Islamic concept which is the minimum value of property or wealth that an individual must own before being obliged to pay zakat (obligatory alms giving in Islam). The Sudanese Chief Justice reportedly set Nisab at 3000 (approximately $500) Sudanese Pounds on 7 March 2013. It was previously set much lower, at 1500 Sudanese Pounds.
Algasim Abdulhamid Adam was arrested and charged with the theft of a laptop, reportedly worth 1500 Sudanese Pounds (approximately $250), in October 2012, whilst he was on bail for another criminal offence. He was detained pending trial and later convicted in 2013, without any legal representation, under Article 174 (Theft) of the 1991 Sudanese Criminal Act, before Jebel Awliya Criminal Court. Adam was sentenced to 6 months imprisonment, which his mother appealed before the Khartoum Appeal Court. The Appeal Court held that the case should be heard by a more senior (first class) judge and referred the case back to the Jebel Awliya Criminal Court. Adam was convicted again under Article 174 (Theft) but with an increased sentence of one year of imprisonment. His mother again appealed the new sentence to the Khartoum Appeal Court which upheld the conviction and sentence under Article 174. In 2015, Adam’s mother appealed to the High Court. On review of the case, the High Court annulled all previous decisions, and ordered that the case be considered again by the Jebel Awliya Criminal Court, but this time under Article 170 (Capital Theft) of the Sudanese Criminal Act, asserting that the stolen laptop met the value of Nisab which was set at 1500 Sudanese Pounds at the time the offence was committed. On 22 October, Adam was convicted of Capital Theft by Jebel Awliya Criminal Court and sentenced to amputation of his right hand under Article 171 of the 1991 Sudanese Criminal Act.
ACJPS has documented a number of cases of amputation penalties being handed down by the Sudanese Courts in recent years. On 12 April 2015, El Geneina Criminal Court in West Darfur sentenced three men from the Masalit ethnic group in Darfur to the amputation of their right hands from the wrist for Capital Theft. The three men, who did not have legal representation in court, were found guilty of stealing 56,000 Sudanese Pounds (approximately $9,400). The three men subsequently obtained legal representation and their convictions were overturned before the West Darfur Appeal Court. Two men were convicted of theft under Article 174 of the 1991 Criminal Act and sentenced to seven months imprisonment and the third was released when the appeal court dropped all charges against him.
In 2012 the African Commission on Human and Peoples’ Rights that monitors state compliance with the African Charter called on Sudan to “urgently abolish” all forms of corporal punishment, expressing concern that “Sudan’s laws provide for several forms of corporal punishment, including stoning, amputation, cross-amputation and whipping”, contrary to Article 5 of the African Charter.
In the case of Doebbler v Sudan (2003), concerning the use of flogging as a punishment in Sudan, the African Commission ruled that there is no right for “the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State sponsored torture”.
Contact
Katherine Perks, (English), +256 775072136 / info@acjps.org.
Mohamed Badawi, (Arabic), +256 783 693 689 / info@acjps.org.
