By Hikma Ahmed, ACAL
Saadia Rajab is a 22 year old Sudanese woman who was charged with adultery and sentenced to death by stoning.
When she first appeared at the Alhaj-Yousf/Bahri Public Order Court in the north of Khartoum, Saadia did not have any legal representation and admitted that she had a relationship with a man while being married to another. She was sentenced to "lapidation" (stoning to death) under Article 146 of the Sudanese Criminal Act of 1991.[i] But, in accordance with Article 144g of Sudan's 1991 Criminal Procedure Law, the judge postponed implementation of the sentence and ordered her to return to court after a month.
At her second court appearance on 28 June, Lawyers from the Aid Center for Advocacy and Legal Consultation (ACAL), the free legal defence group, intervened and took up her case. Saadia told them that her husband had been absent for more than one year. Lawyers at ACAL were aware that some experts on Islamic jurisprudence state that the absence of a husband for at least one year is tantamount to divorce and is, therefore, grounds for cancellation of a stoning sentence.
So, upon the advice of her lawyers, Saadia explained to the court that her husband had been absent for more than one year and on that basis pleaded not guilty to adultery. The judge (Altaher Khalifa) summoned Saadia’s husband, who had filed the adultery charges against her, and encouraged the couple to enter into an informal settlement. The man subsequently admitted that he had abandoned her for over a year and withdrew his complaint.
Article 146 of Sudan's Criminal Act of 1991 provides that death by stoning is the punishment for adultery by a married person whereas sexual intercourse between a man and woman who are not married carries the lesser sentence of 100 lashes.
In view of Saadia's change of plea and the withdrawal of the complaint, the judge cancelled the sentence of death by stoning against Saadia and, provisionally, replaced it with the lesser sentence of 100 lashes.
Article 144b of the 1991 Sudanese Criminal Procedure Law says that, in cases that attract the most serious sentences, before asking an accused person how they plead, a judge should warn them that an admission of guilt would expose him or her to a sentence of stoning to death or more than 40 lashes.
Saadia's lawyers spelt out to her that, according to Sharia law, stoning and flogging cannot be carried out if there is any doubt that the serious offence (or "Hudood") was committed. Saadia testified that she never engaged in a sexual intercourse contrary to the earlier charge by her husband and the judge acquitted her of all charges.
Despite the success on Saadia’s case, I and everyone at ACAL remain very concerned about the existence of severe corporal punishments, which are oftentimes being used against women. The Sudanese government is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and is thus obliged to align its law with the international standards under the ICCPR. Article 6 of the ICCPR stipulates that the “sentence of death may be imposed only for the most serious crimes”. We consider that enforcement of Sudanese law not only breaches the ICCPR but also unfairly targets women as most of those charged of adultery had been women.
In February of this year, an amendment of Article 149 of the Criminal Code established a distinction between rape and adultery. However, Sadiaa’s case proves that the penal code, which is essentially based on the Shari’a, continues to allow sentences of flogging and stoning to death.
Saadia’s case follows the high-profile case of Laila Ibrahim, who, in 2012, was convicted of adultery and sentenced to death by stoning until ACAL successfully appealed on her behalf and she was set free. ACAL believes that there are many more cases like these that remain unknown, in which women do not have any access to legal defence due to a huge lack of legal aid services – a widespread problem facing women in Sudan.
Criminal law has also been systematically targeting women in other fronts. On 28 June, 12 Christian women wearing trousers were arrested by police and were brought before the Public Order Court charged with being “indecently dressed”. Under Article 152 of the Criminal Act, they could be sentenced to flogging.[ii] Their trial is ongoing with two sessions scheduled for 9th and 13th of July.
This case is part of a new wave of moral campaigns against women that the Sudanese government has launched following the general election in April 2015 which aims to further control women’s freedoms of movement and expression in public.
These cases came just one month after the United Nations Special Rapporteur on violence against women Rashida Manjoo called for more open and constructive dialogues among all parties to address the causes and consequences of violence against women in Sudan after a twelve day mission to the country. The government, for its part, harassed and intimidated the activists who tried to meet with her.
The combination of civil society repression and extremely sexist laws and norms is creating an unbearable situation for the women of Sudan. Something must change, and soon.
Hikma Ahmed is a Sudanese Human Rights Lawyer and Founder of ACAL (Aid Center for Advocacy and Legal Consultation) in Khartoum. She is a networker with Women Living Under Muslim Laws and has collaborating with WLUML on various projects. She was a participant at WELDD trainings on peacebuilding and political participation. She is currently a visiting fellow at York University’s Centre for Applied Human Rights, as part of the Protective Fellowship Scheme for Human Rights Defenders at Risk.
[i] Article 146 of the Criminal Act of 1991:
Penalty for adultery
(1) Whoever commits the offence of adultery shall be punished with:
(a) execution, by lapidation [stoning], where the offender is married (muhsan);
(b) one hundred lashes, where the offender is not married (non-muhsan).
(2) The male, non-married offender may be punished, in addition to whipping, with expatriation for one year.
(3) Being “muhsan” means having a valid persisting marriage at the time of the commission of adultery; provided that such marriage has been consummated.
[ii] Article 152 of the Criminal Act of 1991:
Indecent and immoral acts
(1) Whoever commits, in a public place, an act, or conducts himself in an indecent manner, or a manner contrary to public morality, or wears an indecent, or immoral dress, which causes annoyance to public feelings, shall be punished, with whipping, not exceeding forty lashes, or with fine, or with both.
(2) The act shall be deemed contrary to public morality, if it is so considered in the religion of the doer, or the custom of the country where the act occurs.