"The Sudan Child Act 2010 stipulated in Article 4 that the age of [adult responsibility] is 18 years old. [However], the Supreme Court has decided in recent precedents that an adult as defined by Article 3 of the 1991 Criminal Act is in fact the accurate definition which must be adhered to considering that the Criminal Act is based on Islamic sharia provisions which rely on the appearance of characteristics or signs of puberty when determining the age of the person."
In mid-2017, Abbas Nur called his father, Mohammed, and said: "Dad, the prison administration has started the procedures for my execution. They measured the size of my neck and my weight. They will execute Fadl Al-Mawla tomorrow, and afterwards, I will be executed."
In mid-2021 Nur and three of his fellow inmates are still awaiting execution for "crimes" committed and for which they were convicted when they were under 18 years old; when they were legally children. The death sentence remains in clear violation of Sudan's Child Act 2010.
Mudthar Al-Reeh, Fadl Al-Mawla, Ahmad Jibril and Abbas Nur were all convicted and sentenced to death for murder under Article 130 of Sudan's 1991 Criminal Act. So far, efforts to overturn the sentence have failed. They have spent years behind bars in harsh conditions, including being kept alongside adults.
Nur's life changed forever on 27 August 2013 when he stabbed a boy to death during a fight in his neighbourhood. He was 15 years old at the time. He was held under tight security in Rufaa police station in the central Sudanese state of Al-Jazirah. On 7 January 2014, he appeared before a court to face charges. On 2 September that same year, his case was transferred to the Court of Appeal that ruled that he should be treated as an adult.
His lawyer, Taha Fadl Taha, who is defending Nur and the other three, said that their cases are "the strangest in Sudanese courts in terms of violations and extreme injustice." Taha is a member of Al-Insaf Centre for the Defence of Human Rights in Khartoum. "Abbas violated the law when he was 15 years old, and the court sentenced him a year later to death by hanging, in violation of local and international laws," he explained.
According to his father, Nur got into a fight with a friend while playing football in Wad Madani in central Sudan. "The fighting escalated and Abbas stabbed his friend to death."
The trial court demanded Nur's transfer to Dar Al-Tadbeer youth detention centre in Khartoum, but the later Court of Appeal decision to treat him as an adult meant that he could face the death penalty.
In its decision no. 355/2014, the Criminal Department at the Supreme Court explained the Court of Appeal's move: "The Sudan Child Act 2010 stipulated in Article 4 that the age of [adult responsibility] is 18 years old. [However], the Supreme Court has decided in recent precedents that an adult as defined by Article 3 of the 1991 Criminal Act is in fact the accurate definition which must be adhered to considering that the Criminal Act is based on Islamic sharia provisions which rely on the appearance of characteristics or signs of puberty when determining the age of the person."
The death sentences handed down to the four who were children when the crimes were committed pushed human rights organisations to launch a campaign against the execution of children. Protests were held outside the judiciary headquarters in Khartoum during the trials. Campaigners called for the death sentences to be overruled, and succeeded in convincing the authorities to remove the handcuffs and leg chains from the children in prison. Like all of those sentenced to death, the children were handcuffed and kept in fetters because the Sudanese Penal Code stipulates this for prisoners awaiting execution.
The campaign organisers and other Sudanese human rights activists pinned their hopes on the Constitutional Court, the country's highest judicial authority. However, the Constitutional Court had a different opinion.
"The sentence was issued according to a law that is not backed by any logic," said Taha. "We submitted an appeal to the Constitutional Court as we were seeking justice for Abbas. The court said that the case did not fall within its jurisdiction. However, the court had said otherwise in a previous case when it had issued its verdicts. It was based on this jurisdiction that it previously ordered the implementation of the Child Act in similar cases and revoked the death penalty. When it came to [Abbas's] case though, the court deviated from this usual approach and said it had no jurisdiction to look into the case."
It is worth noting that judges can convene and reject an appeal if they deem there to be legal justifications for doing so.
"Abbas told me he that he'd prefer to be executed as soon as possible rather than live through this torment and anticipation," said his father, Mohammed. "Every time I speak to him, he tells me: 'This could be my last day, dad'."
Fadl Al-Mawla's father echoed Mohammed Nur's concerns: "This year, Fadl will have spent nine years in prison. He has been prepared for execution twice. He lives in constant fear and anxiety. Nevertheless, he sat the examination of the intermediate certificate when in prison, which will allow him to attend high school later."
Al-Mawla committed a crime when he was 15 years old in 2012. He was referred to trial but the administration of the prison in central Sudan refused to admit him because he was a child. "That same year, he was transferred to Dar Al-Tadbeer youth detention centre," added his father. "He was later transferred to a civilian prison, by which time he had been sentenced to death. He has been living in fear ever since because he is locked up with adults. This is in addition to the burdensome financial costs for his family as he needs 30,000 Sudanese pounds ($60) a month for his expenses inside prison. I had to quit work because of the ongoing trials and the reconciliation efforts that have so far failed."
To explain this change of approach while handling the case — i.e. treating children as adults — former judge and international legal advisor Dr Omar Ibrahim Kabashi said: "Death sentences against children have been confused due to the Child Act of 2010 and its definition of children as all persons below the age of 18. As a result, the Supreme Court decided that the Child Act violates Islamic sharia provisions, which leave it to judges to determine the age of majority of a child based on appearance and various characteristics [of puberty]." However, he pointed out, there is another opinion on this matter. "This could have been cleared up by looking at legal precedents when the Constitutional Court made precedent number 51/2013 and revoked a death sentence based on the definition of a child in the Child Act. The Constitutional Court thus decided that the Child Act does not violate Islamic sharia. Hence, it is important to refer to the precedents of the Supreme Court in Port Sudan, east of Sudan, known locally as the Malasi precedents that are based on a study carried out by 3 legal experts in childhood affairs: Dr Umayma Abdelwahab, Dr Mustafa Abboud and myself."
When examining judicial decisions made by the same Constitutional Court's judges who handed down the death sentence to the four children, it was seen that there have been verdicts that prohibited the execution of those who are below 18 years old. In 2013, the Constitutional Court finalised the contradiction between the Child Act 2010 and the 1991 Criminal Act when it confirmed the inadmissibility of the death penalty in its verdicts in one of its cases (N.Q. Constitutional Court – M.D./Q.D./2005).
A similar approach was adopted in the case of child (M.D./Q.D./2018) and of child S.N. when it was decided that it was inadmissible to execute anyone below the age of 18 years even if they commit crimes of "hudud" (Qur'anic prescribed punishment) and crimes of "qisas" (retaliatory punishment) because the applied law is the Child Act 2010 and not the 1991 Criminal Act.
However, according to Yasser Salim Shalby, the director of the Child Rights Institute, some judges have a different opinion. "Some judges think that the Child Act contradicts Islamic sharia and believe that ages of detainees must be determined based on the indication of their puberty and not their actual age. Despite the fact that the Child Act 2010 clearly stipulated that a child is anyone below the age of 18 years, some judges think otherwise."
Shalby pointed out that during some training courses organised for judges by the institute, some of them firmly rejected the execution of children. "However, they have actually issued verdicts sentencing those below the age of 18 years to death. When asked about this, they would argue that these convicts are not children but adults. When we noted that state institutions, like the armed forces, do not recruit anyone below the age of 18 in their ranks and that driving licences are not issued to anyone below this age as well, they rejected this argument and upheld their positions."
In Abbas Nur's case, UNICEF issued a statement describing the verdict as a dangerous violation of international conventions. Tahani Elmobasher from the Child Protection section in UNICEF in Sudan voiced great concern over the verdicts: "We learnt about the Constitutional Court's decision in support of the death sentence handed down to children. After researching the circumstances of the crime, we learnt that Abbas Nur committed the crime and was sentenced to death when he was still 15 years old. Afterwards, we, along with a number of children's rights activists, began addressing the case."
In 2019, following the collapse of the Islamist government in Sudan, which was known for its extremism, radical changes were made to a number of laws. The Justice Ministry approved amendments of some local laws such as ending the contradiction between the Criminal Law and the Family and Children Law, an amendment that children's rights organisations have long been demanding.
Those already in prison, though, could not benefit from these amendments as they have been through the entire legal process that ended with the Constitutional Court's verdicts that must be implemented. In short, any amendments cannot be applied retrospectively.
In a report published in 2010, the Committee on the Rights of the Child voiced its "concern at recent reports that children's death penalties continue to be carried out" in Sudan. It reminded the government in Khartoum that "the application of the death penalty to children is a grave violation of articles 6 and 37 (a) of the Convention [on the Rights of the Child]."
The Secretary-General of the National Council for Child Welfare in Sudan, Othman Sheeba, has revealed for the first time the numbers of children who face the possibility of execution. "There are around 100 children who face the possibility of execution under Article 130 according to statistics we collected in 2019. 20 of them had their cases settled with the victims' families, and they have been released, but the rest still face the possibility of a death sentence under Article 130, and they are supposed to benefit from the new amendments. However, we can say that death penalties against children are now a thing of the past."
Taha, however, is not so optimistic about the amendments made to the Criminal Act. "As men of law, we doubt that amending the contradiction in the Criminal Act can put an end to death sentences against children. When the children were sentenced to death, the Child Act was already in place, and what actually happened was a violation of that Act. Therefore, this amendment to the Criminal Act can also be violated and other children can be sentenced to death. The actual problems lie in the fact that some judges believe that the Child Act violates Islamic sharia, so they overlook the terms of the Act based on their ideological beliefs."
Former Sudanese Member of Parliament Dr Aisha Al-Ghabshawi commented on the controversy regarding the Child Act's violation of Islamic sharia and death sentences against children in a report prepared by the Child Rights Institute in cooperation with UNICEF. "Islamic scholar Shams Al-A'imma Al-Sarakhsi said that, according to one account, Imam Abu Hanifa fixed the age of puberty for boys at 18 years old, and according to a second account, he fixed it at the age of 19 years old, the latter being the accurate version," she explained. "In his book Al-Ashbah wa'l-Nazai'r (page 306), Hanafi scholar Zainuddin Bin Najim explained this further by saying: 'He is a foetus as long as he is in his mother's womb, and once he is born, he is a boy until puberty and a child until he is 19 years old."
Meanwhile, Sheeba is hoping to save the four children using a different approach. "The death sentence has not been revoked despite going through the entire litigation process. However, we hope we will save them. We are working with the aggrieved party to move towards an amnesty and reaching a settlement so that the victims' families accept 'diya' [blood money]."
Source: Middle East Monitor, Noureddine Jadat, Opinion, September 15, 2021
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
