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Civil Society Statement in Response to The Law of Various Amendments

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A Collaborative Civil Society Statement in Response to The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom) – Exposing ‘a wolf in sheep’s clothing’

Sudanese women and men, with their various cultural, religious, and ethnic backgrounds, participated in the movement of the glorious December 2019 revolution in a comprehensive and integrated manner. Women, who exceeded 50% of the participants, demonstrated an unflinching commitment to the importance of change and revolution against the militant Salafi and militant Islamist system and its discriminatory policies and laws that disregard the dignity of the Sudanese people.

Nearly a year since the transitional government was appointed, no space has been made for the Sudanese people, activists, grassroots groups, or civil society bodies to engage through consultations on law reform, despite the attempts of dispersed groups to open the doors of dialogue to look at the roots of the political and social problems in the country, . This dilemma comes as one of the main flaws in the constitutional document, which deliberately ignored the provision of community consultation.

On July 13, 2020 AD, the transitional government published a set of legal amendments called (The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom). The law included amendments to a number of articles of the Criminal Law of 1991 AD, the Criminal Procedure Law of 1991, the Law Political Parties of 2007 AD, National Security Law of 2010 AD, Traffic Law of 2010 AD, Passports and Immigration Law of 2015 AD, and Public Prosecution Law of 2017 AD.

This statement shall comment critically on the changes to the 1991 Criminal Law, due to its central relevance regarding human rights and citizenship rights in Sudan.

Articles of the 1991 Criminal Law that have been amended or cancelled
The Law of Various Amendments contained thirty-five amendments to the Criminal Code of 1991, which concerned articles 3 (interpretation and clarifications), 9 (minor act), 25 (incitement), 27 (execution), 28 (retribution), 30 (multiple retribution), 38 ( Pardon the punishment), 42 (blood money), 47 (measures prescribed for minors), 65 (criminal and terrorist organizations), 68 (the punishment for rioting), 69 (breach of public safety), 73 (suspension of service that may cause danger to life or damage for the public), 78 (drinking alcohol and disturbing), 79 (dealing with alcohol), 80 (playing the facilitator or managing the places where the facilitator plays), 81 (habitually committing some crimes), 115 (affecting the course of justice), 125 (insulting religious beliefs) 126 (apostasy), 128 (trespassing on the dead and graves), 141 (punishment for causing wrong wounds), 148 (sodomy), 149 (rape), 151 (sexual harassment and indecent acts), 152 (indecent and indecent acts), 153 (Articles and performances against public morals), 154 (practicing prostitution), 155 (managing a place of prostitution), 156 (seduction), 160 (insulting and insulting), 170 (hudud theft), 173 (punishment for theft when the hudud punishment falls), and 174 (Stealing) .

The amendments included positive aspects such as raising the age of criminal responsibility to 18 years and abolishing the death penalty for those under the age of eighteen, in accordance with Sudan’s international obligations in the Charter on the Rights of the Child.

Despite the abolition of Article 126 (Apostasy), the amendments did not address many issues of personal freedom that continue to go unprotected. Rather, they included a clear violation of the principles of human rights contained in regional and international agreements and charters that Sudan has ratified.

The amendment emphasizes the full infliction of punishments for Hudud crimes, and in fact, Article 170 (amended) stipulates that a special law be issued to determine the threshold for petty theft, which this confirms the adoption of amendments to corporal punishments such as amputation of the hand, amputation of (hand and foot), execution, crucifixion and flogging, which gravely contradict the principles of human rights that call unequivocally for the abolition of the death penalty and other corporal punishments, especially when employed to punish acts that constitute personal freedom.

In the amendment of Article 79 of the Criminal Code criminalizing dealing in alcohol by buying, selling and manufacturing for a Muslim person, and the amended article criminalized the non-Muslim dealing with a Muslim by buying and selling. This amendment includes discrimination on the basis of religion and does not recognize equality on the basis of citizenship as a principle of interaction between citizens in the state. This leads to a number of practical dilemmas in applying the text of the article, including

? That the seller of local alcohol cannot distinguish between a Muslim and a non-Muslim, because the religion is not recorded in the identity card, and therefore a person may find himself committing the crime of unintentionally dealing in alcohol.
? When a person is brought to trial under penalty of the crime of dealing in alcohol, there is no way to verify their innocence or conviction except by verifying their religion, and this procedure violates freedom of belief and represents a flagrant violation of personal freedom by forcing the person to show their belief and using this belief as evidence for his crime.
? This amendment may pave the way for the policeman and the judge to us the appearance of the accused as a criterion for determining their religion, and thus may pave the way for a new wave of racism and discrimination between citizens,

Articles 145 (fornication) and 146 (punishment for adultery) have not been removed from the law, which means that flogging and death penalties still apply to persons who engage in consensual sexual practices.

Moreover, the amendment did not extend to the Evidence Law of 1994, which provides for flawed rules for proving the crime of adultery, as Article 62 of the Evidence Law of 1994 provides for limited methods of proving the crime of adultery: admission and testimony of four just men, pregnancy (for accused individuals who are unmarried), or oath of condemnation of adultery made by the husband of the accused before a court of law. (????)

It is particularly unjust that two of the very few means to prove an accusation of adultery can only be applied to women: pregnancy and the sworn oath of condemnation of adultery from the husband. The fact that these two items continue to be accepted as proof (that does not need to be corroborated), is a blatant violation of women’s right to equal judgment before the law. Furthermore, it cements the institution of patriarchy within families and partnerships as the acceptance of a man’s oath of condemnation of adultery as proof can be weaponized by the man whenever he wants, whether by claiming adultery or denying lineage.

The amended Article (152) stipulates the following: ‘whoever commits in a public place an act of a sexual nature or emits signals with sexual meanings that cause harassment of public feeling or public modesty, shall be punished with imprisonment for a period of six months or a fine or with both.’ This amended article, although it removed the phrase (disguised in an indecent dress), still allows policemen to assess the nature of the disobedient act or statement, which allows for the continued interference in personal freedoms by policemen who have the right to assess the matter according to what they deem to be a breach of modesty, without the protections of an objective standard.

? The amended Article (153) states the following: ‘whoever makes, photographs, or possesses materials violating public morals shall be punished with imprisonment for a period not exceeding a month and may also be punished with a fine.’ This text does not differ much from its predecessor, as it affirms the authority and guardianship of law enforcement officials and the judge over any person in determining what that person may possess and what is not permissible, and gives legal and justice officials the authority to monitor people’s phones and electronic devices, and paves the way for the violation of personal privacy through unauthorized inspection. On the other hand, the text did not take into account developments in the field of technology and communications that allow materials to be sent to phones and other devices automatically, and thus everyone remains vulnerable to criminalization and punishment without reason.
? In the amendment of Article 148, the penalty for homosexuality between a man and a man was reduced from life imprisonment, the death penalty to seven years in prison, and the abolition of flogging, but the amendment still considers homosexuality a punishable crime.

Article 141-1 has been added to criminalize the removal or mutilation of female genital organs, and 141-2, which mandates a prison sentence of no more than three years for perpetrators of the crime. By adopting this punishment in a vacuum, the law reproduces the same system of criminalizing women without understanding societal problems. Such criminalization. when not accompanied by efforts to raise social and professional awareness among in Sudanese society and the medical community, will not contribute to reducing this deeply entrenched violations of human rights. The practice is linked to the concept of women’s purity and the many other patriarchal expectations placed upon women in Sudan. Unfortunately, this article stopped short of understanding the societal context of this problem and rushed to criminalize midwives and mothers. without considering the motives and circumstances of the problem as a whole. Betraying a commitment more to the appearance of justice rather than ensuring actual access to justice and rights for all citizens.

Also, we find in the amendment of Article 149 (rape), that the legislator continues to confuse adultery with rape. This lack of distinction is highly dangerous for women, who bear the brunt of adultery accusations because if they are raped, they know that they may be convicted of adultery if they go to court. Therefore, the legislator must completely separate the concept of adultery from the concept of rape.

In Article 154 the practice of prostitution, the concepts of prostitution and consensual sexual relations were confused, as the article stipulates that prostitution may be free of charge. It is widely accepted that prostitution is characterized by the exchange of sex acts for some kind of financial gain. Such financial gain may come in the form of valuable items, food, etcetera in lieu of currency, however, to include sexual relations undertaken ‘free of charge’ within the definition of prostitution unduly and recklessly broadens the concept paving the way for criminalization of women’s engagement in consensual sex acts, and possibly also criminalizing women who are survivors of rape. As for the description of the place of prostitution, the article states that it is any place ‘prepared for prostitution,’ without specification of how a place might be prepared for prostitution, thereby infinitely expanding the circle of criminalization, subjecting women and men to criminalization in all locations. This adds to the police’s already unchecked discretionary authority, which opens the way for malicious reports and the violation of the privacy of Sudanese homes and the humiliation of Sudanese and Sudanese women, especially through the humiliating method of arrest.

Personal Status Law 1991 and Passports and Immigration Law 2015:
The rumours circulating on news media and social media platforms about allowing mothers to travel with their children without the need for permission from the father /the guardian are false. The amendment that was approved is the abolition of Article 12 of the 2015 Passports and Immigration Law, including section 3. E, which stipulates that an exit visa shall not be granted to a child who has not attained the age of 18 without the consent of the guardian. This means that if a mother wishes to travel with her child or children, she must obtain the permission of the male guardian. According to Articles 119-1, 120-2 of the 1991 Personal Status Law are still based on the promulgation of women, stipulating that the custodian and child-guardian are not allowed a passport without the permission of their " male guardian."

It is imperative that we, as Sudanese people who are keen to move Sudan to the structure of the civil state, raise our voices loudly by clarifying the crisis of the amendments that were adopted by the transitional government. These amendments have upheld nearly all of the militant Salafi principles within the policies and laws from previous periods of Sudan’s history. We would also like to point out that the transitional authority’s attempt to rely on the references to the ‘true religion’ was discriminatory and baseless, as none of the types of ijtihad associated with the research was accompanied by a serious study according to Islamic traditions, as the amendments reflected an unrivalled identification with the Salafi interpretations that have dominated Sudan for the past 30 years.

Neither the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), nor the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) have been ratified by the Sudanese transitional government. With the Convention against Torture and Other Cruel Treatment, the new legal amendments paved the way for the adoption of new types of discrimination on the basis of religion and allowed for the freedom of belief to be encroached upon, once again criminalizing citizens, - women in particular. The authority to criminalize citizens remains in the hands of police personnel, and public order courts are still in place. The Personal Status Law, in all its complexities, the Evidence Law and its thorny articles regarding proving the crime of adultery and crimes of gender-based violence have remained unchanged and marriage of individuals as young as ten years old is still legal.

Civil laws must be inspired by the lived realities, needs, and viewpoints of citizens. The Sudanese legal codes must be reviewed comprehensively to Sudan’s status and respect. The Sudanese legislators’ insistence on using fundamentalist and militant legal concepts and principles is a continuation of diminishing the dignity and struggles of the citizens of this country, and the betrayal of the country’s commitments to honor and protect human rights in line with international and regional conventions.

Signatories:
1. The Access Center for Legal Aid.
2. Deborah Center for Legal Aid.
3. PANA Legal Aid Center.
4. The Sudanese Defenders Center for Legal Aid.
5. Rights Center for Legal Aid.
6. People Center for Legal Aid - Bliss.
7. The Sudanese Organization for Transitional Justice.
8. Multipurpose Women’s Cooperative Union.
9. The Strategic Initiative for Women in the Horn of Africa - SIHA Network.
10. Women in Media Network.
11. The entity of female journalists.
12. The Sudanese Female Cyclist Initiative
13. Al Manara Youth Initiative for Legal Awareness and Justice
14. The Kandakat of the Nuba Mountains
15. Al Alq Center for Press Services
16. Women Solidarity Cooperative Association
17. The Mindanek Movement.
18. White Rhinoceros Movement
19. Women of margin group
20. Alifah Charitable Society
21. Noun movement
22. Self Help Association
23. Women, Security and Peace Initiative
24. Adela for Culture and Arts.
25. Nuba Mountains Lawyers Association
26. The National Assembly of Sudanese Women
27. No to Oppression against Women Initiative
28. The Republican Party
29. Mahmoud Mohamed Taha Cultural Center

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Kind regards,

The Sudan Tribune editorial team.


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