Last updated: February 2017
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Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, alternative care settings, day care, some schools and penal institutions. Prohibition as a sentence for crime requires confirmation.

There appears to be no confirmation in criminal law of a “right” to administer “reasonable punishment” or similar, though it is possibly included in civil law and in state laws. But Sudan did not declare independence from the UK until 1956, so the English common law defence of “reasonable chastisement” is applicable. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. All legal provisions justifying the use of corporal punishment in childrearing should be repealed, and all corporal punishment and other cruel or degrading forms of punishment should be prohibited in the home and all other settings where adults have authority over children.

Alternative care settings – Corporal punishment should be prohibited in all alternative care settings (formal foster care, institutions, orphanages, children’s homes, places of safety, emergency care, etc).

Day care – Corporal punishment should be prohibited in all formal early childhood care (nurseries, crèches, family centres, etc) and all formal day care for older children (after-school childcare, childminding, day centres, etc).

Schools – Corporal punishment is prohibited in schools in Khartoum State. Legislation should be enacted which prohibits corporal punishment in public and private schools throughout Sudan

Penal institutions – Corporal punishment should be prohibited as a disciplinary measure in all institutions accommodating children in conflict with the law.

Sentence for crime – Confirmation is required that all judicial corporal punishment of child offenders, including under Shari’a law, is unlawful.

Legality of corporal punishment

Home

Corporal punishment is lawful in the home. Sudan did not declare independence from the UK until 1956, so the English common law defence of “reasonable chastisement” is applicable. Provisions against violence, inhuman and degrading treatment and abuse in the Child Act 2010, the Interim National Constitution of the Republic of the Sudan 2005 and other laws are not interpreted as prohibiting all corporal punishment in childrearing. In 2012, Rules under the Child Act were being drafted: we have no further information. We have yet to see the full text in English of the Disability Act 2009 but there are no indications that it prohibits corporal punishment.

At state level, all states have adopted constitutions which provide for child protection. Specific child legislation has been adopted in the states of the Red Sea, Kassala, South Kordufan, West Darfur and South Darfur; in 2010 child bills were under discussion in the states of Blue Nile, North Darfur and Gezira.

 

Alternative care settings

There is no explicit prohibition of corporal punishment: it is lawful as for parents (see under “Home”).

 

Day care

Corporal punishment is lawful as in the home (see under “Home”).

 

Schools

At federal level, the Child Act prohibits “cruel penalties” in school (art. 29(1)) but does not explicitly prohibit all corporal punishment. Article 29(2) of the Child Act calls for the Ministry of Instruction and General Education to specify the sanctions for contravening article 29(1), but as of February 2017 this requirement had not yet been fulfilled. Corporal punishment is explicitly prohibited in schools in Khartoum State under Decree No. 10 (2010).

 

Penal institutions

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Criminal Procedure Act 1991 states that an arrested person “shall be treated in such a way, as may preserve the dignity of the human being” and shall not be hurt physically or mentally (art. 83), but there is no explicit prohibition of corporal punishment in this or the Child Act 2010. In 2010, legislation on juvenile justice was being developed.

 

Sentence for crime

The effect of the Child Act 2010 on the legality of corporal punishment as a sentence for crime is unclear. In sentencing a child the court must “give due regard” to the principle that “the sentence of whipping is not inflicted on the child” (art. 77), but it is not clear that giving “due regard” amounts to prohibition of judicial whipping in all cases, including as hudud. The Act does not prohibit other forms of corporal punishment, such as amputation and wounding as retribution, which may be imposed for hudud offences under the Criminal Code 1991 (e.g. see arts. 28, 29, 30, 31, 32 and 168). The Child Act 2010 states that it prevails over any other law where there is inconsistency (art. 3), which was confirmed by the Supreme Court in relation to the provision prohibiting sentencing children to the death penalty.[1] However it is not clear that this prevalence principle applies to hudud offences. In 2014, Human Rights Watch reported that girls and women continue to be subjected to judicial flogging and other humiliating punishments.[2] In 2015, girls aged 17 were reportedly among those facing whipping of 40 strokes for the crime of “indecent dress” under article 152 of the Criminal Code 1991.[3]

In reporting to the Human Rights Committee in 2014, the Government defended the legality of judicial corporal punishment, including flogging and amputation, stating that these punishments “stem from the national belief and creed” and are “imposed in accordance with the law for legitimate public and private interests and safeguarded by all the means of due process of law”.[4]

 

Universal Periodic Review of Sudan’s human rights record

Sudan was examined in the first cycle of the Universal Periodic Review in 2011 (session 11), before South Sudan achieved independence. The following recommendations were made:[5]

“Abolish the death penalty, corporal punishment and other cruel, inhuman or degrading treatment from its national legislation (Ecuador);

“Take appropriate measures to reform its penal code, particularly aiming at eliminating corporal punishment (Brazil)”

The Government’s response was submitted after the achievement of independence in South Sudan (where corporal punishment was already prohibited in all settings): it rejected the recommendations.[6]

Sudan was examined in the second cycle of the Universal Periodic Review in 2016 (session 25). The following recommendations were made:[7]

“As a way to strengthen article 69 of the 2010 Child Act, remove from national legislation all forms of corporal punishment and abolish corporal punishment in the penal system (Uruguay);

“Ratify the Convention against Torture, and prohibit corporal punishment, present in legislation, in the penal system (Spain);

“Urgently review its criminal justice system, in particular to criminalise torture and prohibit the use in courts of evidence obtained in violation of the International Covenant on Civil and Political Rights; abolish corporal punishment in the penal system; … (Ireland);

“Establish a moratorium on capital executions with a view to abolishing the death penalty and to repeal all legislation that allows for the application of corporal punishment (Italy)”

The Government “noted” the recommendations.[8]

Examination in the third cycle is scheduled for 2021.

 

Committee on the Rights of the Child, Concluding Observations

Session 055 (2010)

(22 October 2010, CRC/C/SDN/CO/3-4, Concluding observations on third/fourth report, paras. 39 and 40, recommendations made before South Sudan achieved independence)

"The Committee notes that the Child Act (2010) prohibits corporal punishment in schools. It also notes the adoption of the national plan to combat violence entitled “A Sudan Worthy of Children”. The Committee, however, is seriously concerned that corporal punishment, particularly caning and flogging, is widely practised in schools, in homes, in courts and in prisons.

"Taking into account its general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, the Committee urges the State party to take all the necessary measures to end the practice of corporal punishment, and in particular, to:

a) explicitly prohibit corporal punishment by law in all settings, ensure effective implementation of the law and prosecute offenders;

b) ensure that school discipline is administered in a manner which is consistent with the child’s dignity as set out in article 28(2) of the Convention; and

c) introduce public education, awareness-raising and social mobilization campaigns on the harmful effects of corporal punishment with a view to changing societal attitudes towards this practice, and promote positive, nonviolent, participatory forms of child-rearing and education."

Read more from Session 055 (2010)

Session 031 (2002)

(9 October 2002, CRC/C/15/Add.190, Concluding observations on second report, paras. 35, 36 and 70, recommendations made before South Sudan achieved independence)

"The Committee is concerned that corporal punishment is widely practiced in the State party, including within the family, schools and other institutions; that children have been the victims of violence by, among others, the police; and that acts of torture, rape and other cruel, inhuman or degrading treatment have been committed against children in the context of the armed conflict.

"The Committee recommends that the State party:

a) prohibit under law the practice of corporal punishment in the family, in schools and in all other contexts and make use of legislative and administrative measures, as well as public education initiatives, to end the use of corporal punishment, including the provision of information on alternative non-violent methods of discipline;

b) prevent all forms of violence against children and make sure that perpetrators of violence against children, including the police, are prosecuted....

"The Committee recommends that the State party: ...

e) end the imposition of corporal punishment, including flogging, amputation and other forms of cruel, inhuman or degrading treatment or punishment, on persons who may have committed crimes while under 18…."

Read more from Session 031 (2002)

Session 003 (1993)

(18 October 1993, CRC/C/15/Add.10, Concluding observations on initial report, paras. 4 and 17, recommendations made before South Sudan achieved independence)

"The Committee notes the willingness shown by the Government of the Sudan to take into account the recommendations made by the Committee with a view to reviewing existing legislation in order to bring it into conformity with the Convention. In this regard, the Committee welcomes the State party’s decision to establish a committee to review national laws pertaining to children and that its preliminary observation in the area of the abolition of the punishment of flogging has been taken into account by the reviewing committee.

“The Committee expresses the hope that the review of child-related laws will result in the total abolition of flogging."

Read more from Session 003 (1993)

Session 004 (1993)

(18 October 1993, CRC/C/15/Add.10, Concluding observations on initial report, paras. 4 and 17, recommendations made before South Sudan achieved independence)

"The Committee notes the willingness shown by the Government of the Sudan to take into account the recommendations made by the Committee with a view to reviewing existing legislation in order to bring it into conformity with the Convention. In this regard, the Committee welcomes the State party’s decision to establish a committee to review national laws pertaining to children and that its preliminary observation in the area of the abolition of the punishment of flogging has been taken into account by the reviewing committee.

"The Committee expresses the hope that the review of child-related laws will result in the total abolition of flogging."

Read more from Session 004 (1993)

Committee on Economic, Social and Cultural Rights, Concluding Observations

CESCR session 023 (2000)

(1 September 2000, E/C.12/1/Add.48, Concluding observations on initial report, paras. 24 and 34)

"The Committee is also gravely concerned about the occurrence of flagellation or lashing of women for wearing allegedly indecent dress or for being out in the street after dusk, on the basis of the Public Order Act of 1996, which has seriously limited the freedom of movement and of expression of women.

"The Committee strongly recommends that the State party reconsider existing legislation, particularly the 1996 Public Order Act, in order to eliminate discrimination against women, thereby ensuring their full enjoyment of human rights in general and economic, social and cultural rights in particular."

Read more from CESCR session 023 (2000)

Human Rights Committee, Concluding Observations

HRC session 111 (2014)

([July 2014], CCPR/C/SDN/CO/4 Advance Unedited Version, Concluding observations on fourth report, para. 16)

"The Committee regrets that, despite its previous recommendation (CCPR/C/SDN/CO/3, paragraph 10), the State party’s legislation still provides for several forms of corporal punishment, such as flogging and amputation, that violate article 7 of the Covenant (art. 7)."

Read more from HRC session 111 (2014)

HRC session 090 (2007)

(29 August 2007, CCPR/C/SDN/CO/3, Concluding observations on third report, para. 10, recommendations made before South Sudan achieved independence)

"The Committee notes with concern the scale of values applied to punishment in the State party’s legislation. It considers that corporal punishment including flogging and amputation is inhuman and degrading. The Committee also notes with concern the continued practice of, and legislation concerning, diya (blood money) which may be paid in exchange for less severe punishment (arts. 2, 7, 10 and 14 of the Covenant).

The State party should abolish all forms of punishment that are in breach of articles 7 and 10 of the Covenant. It should also review the practice of the payment of diya (blood money) for murder and similar crimes. The State party should also ensure that sentences are proportional to the crimes and offences committed."

Read more from HRC session 090 (2007)

HRC session 061 (1997)

(19 November 1997, CCPR/C/79/Add.85, Concluding observations on second report, para. 9, recommendations made before South Sudan achieved independence)

"Flogging, amputation and stoning, which are recognized as penalties for criminal offences, are not compatible with the Covenant. In that regard, the Committee notes that:

By ratifying the Covenant, the State party has undertaken to comply with all its articles; penalties which are inconsistent with articles 7 and 10 must be abolished."

Read more from HRC session 061 (1997)

African Charter on the Rights and Welfare of the Child, Concluding Observations

Session 24 (2014)

([December 2014], Concluding observtions on initial report, para. 23)

"The Committee appreciates the legislative and administrative measures taken towards the protection of children from abuse and torture, including the Constitution, the Child Act, and the National Action Plan 2008-2012 for combating violence against children. The Committee, however, remains concerned about the increasing number of reports of sex abuse, physical aggression and negligence. The State Party Report also indicates that physical punishments are often used to discipline children. The Committee, therefore, recommends that the State Party banns corporal punishment in all settings; undertake measures to effectively punish the authors of violence against children; introduce non-violent disciplining mechanisms in schools and sensitize the society about positive parenting."

Read more from Session 24 (2014)

Prevalence/attitudinal research for Sudan in the last 10 years

Research conducted in 2014 as part of UNICEF’s Multiple Indicator Cluster Surveys (MICS) programme found 64% of 1-14 year-old children experienced some form of violent “discipline” (psychological aggression and/or physical punishment) in the month prior to the survey. The survey found 53% of children experienced psychological aggression, 48% physical punishment and 14% severe physical punishment (hit or slapped on the face, head or ears, or hit repeatedly). The use of physical punishment did not vary much with the sex of the child, but violent discipline was more common in the richest households (72%) than the poorest (54%). Only 22% of children experienced only non-violent forms of discipline.

(Central Bureau of Statistics (CBS) & UNICEF Sudan (2016), Multiple Indicator Cluster Survey 2014 of Sudan, Final Report, Khartoum, Sudan: UNICEF & Central Bureau of Statistics (CBS))

According to a 2014 Human Rights Watch report, girls and women continue to be subjected to judicial flogging and other humiliating punishments.

(Human Rights Watch (2014), World Report 2014, NY: Human Rights Watch)

Footnotes

[1] Information provided by the Child Rights Institute, February 2017

[2] Human Rights Watch (2014), World Report 2014, NY: HRW

[3] Reported in The Guardian, 14 July 2015, http://www.theguardian.com/world/2015/jul/14/sudan-christian-women-40-lashes-trousers, accessed 23 July 2015

[4] 12 May 2014, CCPR/C/SDN/Q/4/Add.1, Reply to list of issues, para. 16

[5] 11 July 2011, A/HRC/18/16, Report of the working group, paras. 83(102) and 83(110)

[6] 16 September 2011, A/HRC/18/16/Add.1, Report of the working group: Addendum, paras. 23 and 24

[7] 11 July 2016, A/HRC/33/8, Report of the working group, paras. 140(20), 141(7), 141(18), 141(25)

[8] 11 July 2016, A/HRC/33/8, Report of the working group, para. 141; 9 September 2016, A/HRC/33/8/Add.1, Report of the working group: Addendum, para. 140(20)

Child population

18,954,000 (UNICEF, 2015)

National and regional advocacy for law reform

Sudan Child Rights (yas_shalabi@yahoo.com)

Forthcoming treaty body examinations and UPRs

Universal Periodic Review (UPR): 2021, session 39, deadline for briefing tbc

Committee on the Rights of Persons with Disabilities (CRPD): 2018, session 19, deadline for exam briefing 31 January 2018

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