Three Darfuri men at risk of court-ordered amputation of right hand

(25 May 2015) Three men in Sudan are at risk of court-ordered amputation of the right hand from the wrist after being convicted of capital theft in an unfair trial before a Darfur court. The three convicted men, Mohamed Hassan Abdallah Mohamed, 19 years of age, Daoud Yousif Mohamed Hassan and Mohamed Omar Abdallah Ismael, both 20 years of age, are residents of the Abu Zar camp for internally displaced persons (IDPs) in El Geneina, West Darfur.

The three secondary school students from the Masalit ethnic group in Darfur were found guilty of stealing 56,000 Sudanese Pounds (approximately $9,400) at El Geneina Criminal Court on 12 April. They were convicted under articles 21 (joint acts of criminal conspiracy), and article 171 (Penalty of Capital Theft) of the 1991 Sudanese Penal Code which provides for the penalty of amputation of the right hand from the wrist.

The men were convicted and sentenced to the amputations 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.

The three men were transferred from El Geneina in West Darfur to Kober prison in Khartoum Bahri, on 5 May, to await implementation of the penalty. El Geneina prison authorities reportedly submitted an appeal to the West Darfur Appeal Court.

These penalties breach the absolute prohibition of torture and cruel, inhuman or degrading punishment or treatment that Sudan has committed to as a party to the African Charter on Human and Peoples’ Rights 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.

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”.

The African Centre for Justice and Peace Studies (ACJPS) condemns the sentences and calls on the Government of Sudan to:

• Commute these and all 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 international law commitments to prohibit torture and cruel, inhuman or degrading treatment or punishment. 

Background

Amputation as a form of corporal punishment was incorporated into Sudanese law in 1983 when then-President Gaffar Nimeiry introduced Islamic reforms known as the “September laws.”

The September laws introduced the Islamic concept of hudud to Sudanese criminal law – that is crimes that carry a fixed penalty – under Sharia (Islamic) law. Hudud punishments include amputation, cross amputation, stoning and flogging. Flogging is primarily carried out as a sentence for violation of Sudan’s public order laws, which forbid “indecent and immoral” acts. Under Sudan’s public order laws, women are disproportionately targeted and often tried in summary trials without legal representation. According to the Equal Rights Trust, Government figures for 2008 showed that 43,000 women were arrested for clothing-related offenses in Khartoum alone.

It is not known how many amputation sentences have been implemented since the adoption of the September laws. Monitoring of such cases is difficult owing to a lack of official data on criminal cases and the fact that defendants before Sudan’s courts often do not have legal aid or access to advocates who could raise concern about the case on their behalf.

The last known implementation of an amputation penalty was in February 2013 when government doctors amputated a man’s right hand and left foot by court order in Khartoum on 14 February 2013. Reliable sources informed ACJPS that medical doctors at the Sudanese Ministry of Interior’s Al Rebat Hospital carried out what is called cross-amputation on 30-year-old Adam Al-Muthna, following his conviction and sentencing for an armed robbery (Hiraba) under article 167 of the 1991 Sudanese Penal Code.

The following month, on 31 March 2013, ACJPS documented one case in which three men, Abdulatif Ahmed Ibrahim, Ahmed Idris Salih, and Ali Salih, were convicted of Capital Theft under Article 170 of the 1991 Penal Code. They were convicted and sentenced without legal representation to amputation of the right hand from the wrist at the El Fashir Criminal Court in North Darfur. The men were accused of stealing cooking oil worth 14,700 Sudanese Pounds (approximately 3,300 US dollars) from a factory in El Fashir town on 26 December 2012. After the conviction, their families instructed a lawyer who submitted a successful appeal to the North Darfur Appeal Court. The amputation penalty was overturned and they were sentenced to five years in prison.

Until 2013, human rights groups had hoped that a de facto moratorium on the implementation of amputation sentences was in place, as there had been no reported cases since 2001. However on 11 March 2013 Sudan’s then Deputy Chief Justice, Abdul Rahman Sharfi, held a press conference boasting that 16 amputation sentences had been carried out since 2001.

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.

Contact: 

Katherine Perks, (English), +256 775072136 / info@acjps.org.

Mohamed Badawi, (Arabic), +256 783 693 689 / info@acjps.org.