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Sudan: New Law Amending Penal Code Takes Effect

(July 23, 2020) On July 13, 2020, the Sudanese Official Gazette published Law No. 12 of 2020, which amends 15 provisions of the Penal Code of 1991. According to Justice Minister Nasredeen Abdulbari, the new provisions are part of Sudan’s efforts to eliminate all laws that violate human rights and “demolish any kind of discrimination […]

(July 23, 2020) On July 13, 2020, the Sudanese Official Gazette published Law No. 12 of 2020, which amends 15 provisions of the Penal Code of 1991. According to Justice Minister Nasredeen Abdulbari, the new provisions are part of Sudan’s efforts to eliminate all laws that violate human rights and “demolish any kind of discrimination that was enacted by the old regime” to enable the country to “move toward equality of citizenship and a democratic transformation.”

While the majority of the amended provisions have been generally welcomed, two of the provisions—those governing the trade in liquors and apostasy—have been attacked by some religious leaders as violations of Islamic law. The Sudanese minister of justice, on the other hand, views them as necessary reforms.

New Amendments

The amended provisions under Law No. 12 cover the following legal issues:

Definition of the Term “Adult”

Law No. 12 amends the definition of the term “adult” under the penal code to read that “[a]n adult is whoever reaches 18 years of age.” Previously, the penal code defined the term “adult” as whoever reaches puberty and has completed 15 years of age. (Law No. 12, art. 2(a)(1), amending Penal Code art. 3.)

Criminal Liability of a Minor

Under the new law, minors will be held criminally liable from the age of 12 years, whereas previously, they were criminally liable at 7 years of age. (Law No. 12, art. 2(a)(2), amending Penal Code art. 9.)

Death Penalty for Minors

Law No. 12 has prohibited the implementation of the death penalty against individuals younger than 18 years of age. Before the penal code’s amendment, individuals under 18 years of age could be sentenced to death for crimes of homicide. (Law No. 12, art. 2(a)(4), amending Penal Code art. 27(2).)

Penalties Imposed on Pregnant Women

Law No. 12 provides that a court may order a women who is pregnant or whose children are younger than 5 years of age and who has committed crimes punishable by up to five years’ imprisonment to perform community service instead of going to prison. (Law No. 12, art. 2(a)(10), adding Penal Code art. 47(b)(1).)

Trade in Liquors

Law No. 12 abolishes the penal code provision banning the consumption of alcohol by anyone in the country and replaces it with a new provision banning the sale or purchase of liquor by Muslims. It also prohibits any Muslim person from engaging with another Muslim in selling, purchasing, storing, possessing, transporting, or manufacturing liquor. The crime is punishable by up to one year of imprisonment or a fine. In all circumstances, the confiscated liquors related to the offense are to be destroyed. The new provision implicitly allows non-Muslims to sell, purchase, and consume liquor. (Law No. 12, art. 2(a)(16), amending Penal Code art. 79.)

Punishment for Torture Carried Out by Public Officials

Law No. 12 increases the penalty for the crime of torture carried out by a public official to imprisonment for up to three years and a fine. Previously, the penalty for this crime was imprisonment for up to three months. (Law No. 12, art. 2(a)(19), amending Penal Code art. 115(b).)

Apostasy

Law No. 12 abolishes the crime of apostasy and replaces the related penal code provision with a new provision prohibiting the labeling of any group of individuals as “infidels.” (Law No. 12, art. 2(a)(21), amending Penal Code art. 126.) This new amendment is considered a major shift in that it not only abolishes the act of apostasy, but also replaces the old provision with a new one penalizing anyone who labels others as “infidels.” According to news reports, Sudan witnessed many high-profile cases of apostasy during the era of former President Omar al-Bashir, who was deposed by the military in April 2019.

Female Genital Mutilation

The new law introduces an amendment to the penal code that criminalizes the act of female genital mutilation (FGM) for the first time in the country’s history. The law punishes FGM with imprisonment for up to three years, a fine, and the permanent closure of the site where the crime took place. (Law No. 12, art. 2(a)(23), adding Penal Code art. 141(a).)

Enhancing the Penalty for Rape

Law No. 12 increases the penalty for the crime of rape from imprisonment for a maximum of 10 years to life imprisonment. (Law No. 12, art. 2(a)(25), amending Penal Code art. 149.)

Abolishing the Crime of Flogging for Some Crimes

Law No. 12 of 2020 abolishes the penalty of flogging for some but not all crimes that carry that penalty. The new law does not change the penalty of flogging under the penal code for the crimes of drinking alcohol, adultery committed by an unmarried person, and falsely accusing another person of committing adultery. (Penal Code arts. 78(a), 146(b), 157 (c).)

The crimes for which the new law abolishes the penalty of flogging are as follows:

Offenses Committed by Minors

The new law abolishes the penalty of flogging children aged 10 or older with up to 20 lashes for the commission of a criminal act. (Law No. 12, art. 2(a)(9), repealing Penal Code art. 47(b).)

Disturbing the Peace

The new law abolishes the penalty of flogging for the crime of disturbing the peace. However, it retains the other penalties imposed by the Penal Code for this offense, which remain a term of imprisonment not exceeding one month or a fine. (Law No. 12, art. 2(a)(13), amending Penal Code art. 69.)

Insulting Religious Beliefs

The new law abolishes the penalty of flogging imposed on individuals who have committed the crime of insulting the religious beliefs of others. However, the law retains the other penalties imposed by the penal code for this offense—namely, imprisonment for up to six months and a fine. (Law No. 12, art. 2(a)(20), amending Penal Code art. 125.)

Committing “Obscene Acts”

Law No. 12 abolishes the penalty of flogging for the crime of committing obscene acts in a public place, replacing it with a term of imprisonment for up to two years or a fine or both. (Law No. 12, art. 2(a)(27), replacing Penal Code art. 152.)

Possession and Creation of Pornographic Materials

The new law abolishes the penalty of flogging for the crime of dealing with, possessing, creating, and selling of pornographic materials. However, it retains the other penalties imposed by the penal code for this offense—namely, one month to three years’ imprisonment and a fine. (Law No. 12, art. (2)(a)(28), replacing Penal Code art. 153.)

Managing a Brothel

Law No. 12 of 2020 abolishes the penalties of flogging and death for individuals committing the crime of managing a brothel. However, the law retains the other penalties imposed by the penal code for this offense. Those penalties continue to be imprisonment for up to five years for the first offense and for ten years for the second offense. (Law No. 12, art. 2(a)(30), amending Penal Code art. 155.)

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