Special Courts in Darfur Sentence Nine Individuals, including Four Children, to Death
Contact: Osman Hummaida, Executive Director
Phone: +44 7956 095738, E-mail: [email protected]
(27 October 2010) On 21 October, Judge Shegifa Ali Eshag of the Special Court in Nyala, South Darfur, sentenced a group of nine individuals allegedly affiliated with the Justice and Equality Movement (JEM) to death for a carjacking in Khour Baskawit, near Selia and Yaseen in South Darfur on 13 May 2010. Four members of the group are under the age of 18. The group was convicted under Articles 50 (offences against the state), 51 (fomenting war against the state), 168 (armed robbery), and 182 (criminal damage) under the Sudanese Penal Code of 1991.
The names of the adults sentenced to death are:
· Aboalgasim Abdalla Abubakar, 30 years old, Masaalit Tribe
· Hassan Eshag Abdalla, 20 years old, Zagawa Tribe
· Adam Altoum Adam, 40 years old, Zagawa Tribe
· Mohamed Adam Eisa, 28 years old, Zagawa Tribe
· Alsagig Abakar Yahya, 20 years old, Tungour Tribe
The names of the four children are:
· Ibrahim Shrief Yousef, 17 years old, Birged Tribe
· Altyeb Mohamed Yagoup, 16 years old, Zagawa Tribe
· Abdalla Abdalla Doud, 16 years old, Gimr Tribe
· Abdarazig Daoud Abdelseed, 15 years, Birged Tribe
The application of the death penalty to a child is forbidden by Article 37 of the Convention on the Rights of the Child, to which Sudan is a state party. Notwithstanding its international commitments, domestic law in Sudan continues to make provisions for the application of capital punishment for children. Although Article 36 of the Interim National Constitution (INC) of 2005 restricts the use of the death penalty for individuals under the age of 18, it does not exempt children from application of the death penalty in the event of “serious offences”, namely hudud crimes. Under the 1991 Sudanese Penal Code, certain hudud offences, including armed robbery, are capital crimes. The 2004 Child Law of Sudan attempted to rectify this gap in compliance with international law by restricting juvenile executions in principle and recommending maximum sentences. However, the Child Law fails to fully protect children by defining a child as a person under 18, unless “they have reached maturity under other applicable law”. This opens the door to application of Article 9 of the Sudanese Penal Code of 1991 which allows for persons to be considered adults if they have attained puberty. Despite amendments made to the Child Law on 29 December 2009, this gap in who may be sentenced to death was never remedied.
In this case, the four minors sentenced to death had given their actual ages to the registry, but the court tried them as adults pursuant to medical examinations while they were in custody that determined that they were over 18. There is no specialised permanent medical committee or standard procedure for assessing age, and in remote areas the medical committee is often presided over by a medical assistant rather than a doctor. Even when a doctor does conduct the examination, no medical tests are undertaken and the assessment of the child’s age is based upon physical appearance, and is thus more estimation than scientific assessment. Though the government of Sudan has argued before that in practice no juvenile is ever actually executed and minors are sentenced in order to collect diya, it can still be argued that the act of sentencing a child to death in light of the mental anguish imposed is in and of itself a rights violation, even if the sentence is never implemented.
In addition to the penalty, it appears that a number of procedural irregularities may have undermined the rights of these children. The Child Law of 2004 established specialized courts and juvenile detention centres, but the minors were tried in the same court as the rest of the group, violating their right to a fair trial under Article 34 of the INC. The case has been appealed, and will be tried by the Chief of Judges in South Darfur rather than an Appeals Court (which would be presided over by three judges) due to procedural regulations of the Special Court. The Special Court which convicted the group is distinct from the Special Criminal Court on the Events in Darfur established in 2005 following the opening of the ICC’s investigation into Darfur. In this case, the Special Court refers to a local court mandated since 1997 to prosecute cases of armed robbery and hijackings. Though the media frequently reports trials as being heard solely by the “Special Court” the two are not analogous and function separately; in this case, this is significant as the Special Courts for Darfur receive significantly more judicial monitoring and oversight.
The African Centre for Justice and Peace Studies condemns the use of the death penalty in all cases, particularly when imposed against minors, as this is a clear violation of international law. In addition, there are worrying suggestions that the death penalty is being applied in this case as a tool to suppress ethnic minorities and against individuals who are viewed as being against the Sudanese state. In light of the insecurity in Nyala as of late, it is also possible that the group is being used as an example. The African Centre for Justice and Peace Studies calls on the Ministry of Justice to review the cases of the group and conditions under which they were sentenced, and to re-try those under 18 in a specialized juvenile court.