Sudan and Pakistan: Legal Loopholes

Sudan and Pakistan are states parties to the Convention on the Rights of the Child; Sudan is also a state party to the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, and Pakistan has signed but not yet ratified the covenant.27

Sudan’s 2004 Child Law sets reduced sentences for children age 15 to 18 who commit capital offenses. However, this law is not consistent with Sudan’s 2005 Interim Constitution, which allows for the death penalty against persons under age 18 in qisas and hadd cases, nor with provisions of the 1991 Penal Code, which allows judges to try as adults children over age 15 who show signs of puberty.

In July 2000 Pakistan issued a Juvenile Justice System Ordinance banning the death penalty for crimes committed by persons under 18, but the ordinance requires juvenile courts and other mechanisms not provided for by law in all parts of Pakistan, leaving juvenile offenders at risk of trial as adults in capital cases.

Children’s ability to benefit from the Sudanese and Pakistani legislation is further limited by low rates of birth registration—64 percent for Sudan and 29.5 percent for Pakistan—which make it difficult for juvenile offenders to prove their age at the time of the crime. 28

Sudanese Legislation and Practice

Under the 2005 Interim National Constitution, applicable in all parts of the country, Sudan retains the death penalty for hadd, qisas, and “extremely serious” crimes, although it excludes persons under 18 or over 70 years of age from execution in cases other than hadd and qisas.29 Under the 1991 Penal Code, applicable in all parts of Sudan, hadd crimes punishable by execution include waging war against the state, espionage, apostasy, adultery, sodomy, running a place of prostitution, and armed robbery resulting in death or rape.30 Intentional murder is a qisas offense punishable by execution, and includes killings resulting from an intentional act that was likely to result in death.31

The 2004 Child Law applicable in all parts of Sudan states that as a matter of principle courts should not sentence children to death, and sets a maximum sentence of ten years’ detention in a juvenile reformatory for capital offenses committed by persons age 15 to 18.32 However, the Child Law also specifies that a child is someone under age 18, “unless the applicable law stipulates that the child has reached maturity.”33 This raises the possibility that a person under 18 could still be sentenced to death under the 1991 Penal Code. Article 9 of the Penal Code links criminal responsibility to attaining puberty, and article 3 defines an adult as “a person whose puberty has been established by definite natural features and who has completed 15 years of age … [or] attained 18 years of age … even if the features of puberty do not appear.”34 The 2004 Child Law also lacks clarity on when children over 15 can benefit from the specialized courts and other juvenile justice protections created under the 2004 Child Law, and in practice few juvenile courts exist.35

The 2005 Interim Constitution of Southern Sudan banned the death penalty for persons under 18 without resolving the contradiction with the juvenile death penalty provision in the Interim National Constitution.36 The Southern Sudan Legislative Assembly has yet to finalize a draft Child Code that would ban the juvenile death penalty.37

Since 1990, Sudan is known to have executed two juvenile offenders, Mohammed Jamal Gesmallah and Imad Ali Abdullah, on August 31, 2005.38 However, Human Rights Watch is aware of at least 6 other cases of persons sentenced to death who are believed to have been under 18 at the time of the alleged offense.39

The Case of Kamal Hassan `Abd al-Rahman

Kamal Hassan `Abd al-Rahman is currently on death row, awaiting the outcome  of an appeal to the Constitutional Court challenging the constitutionality of the death sentence issued against him for a crime committed when he was 15 years old.40

The Port Sudan Criminal Court sentenced `Abd al-Rahman to death for a murder committed on March 11, 2004, when he was about 15 years old.41 According to his lawyer, the Port Sudan Criminal Court rejected the defense’s argument at the initial hearing on June 22, 2004 that `Abd al-Rahman was 15 years old and should be transferred to a juvenile court, as required by Sudanese law. Instead, the court determined that the boy was an adult based on a doctor’s written testimony that the boy showed signs of puberty.

On August 5, 2006, the High Court returned the case to the Port Sudan Criminal Court with instructions that it order a forensic age determination. A September 2006 age determination that found `Abd al-Rahman to be between 18 and 20 years old at the time of the determination. As such, he would have been under 18 at the time of the crime and should have been tried as a juvenile and benefited from a reduced sentence, a factor that the court does not appear to have taken into account. The defense also submitted testimony that neither of the age determinations used by the court were forensic examinations, as the first was based on puberty and the second was performed by a dentist and not a forensic panel. However, the judge rejected the defense argument, saying that age determination did not require special expertise.

Pakistani Legislation and Practice

Pakistan retains the death penalty for 26 offenses, including murder, which is considered a qisas offense, and blasphemy, arms trading, drug trafficking, armed robbery, stripping a woman of her clothes in public, extramarital sex, and rape.42 The Juvenile Justice System Ordinance of 2000 bans the death penalty for crimes committed by persons under 18 at the time of the offense, and requires juvenile courts to order a medical examination when a defendant’s age is in doubt.43 The ordinance was extended to apply to Azad Jammu and Kashmir in 2003, and to the Provincially Administered Tribal Areas and the Federally Administered Tribal Areas in late 2004.44 However, implementation remains very limited because many parts of the country lack the courts and other structures called for in the law.45 In its 2007 annual report, the Human Rights Commission of Pakistan reported that the ordinance “remained un-implemented in most of the country,” noting that Sindh still lacked a juvenile court and the government had given no directives for implementing the ordinance in the Federally Administered Tribal Areas.46 Pakistan’s Supreme Court sometimes rejected death penalty appeals by juvenile offenders when their age was not recorded at the time of the original trial.47

A 2001 Presidential Commutation Order commuted death sentences against juvenile offenders issued prior to December 17, 2001 to life imprisonment, but the order excluded juvenile offenders sentenced for qisas or hadd crimes.48

Pakistan is known to have executed at least one juvenile offender since 2005, Mutabar Khan, executed on June 13, 2006. According to a 2007 joint study by FIDH and the Human Rights Commission of Pakistan, as of March 2006, authorities of Mach Central Jail acknowledged holding two juvenile offenders sentenced to death, one a 14-year-old and one who had been found to be 17 at the time of the offense.49

The Case of Mutaber Khan

Pakistani authorities hanged Mutabar Khan in Peshawar Central Prison on June 13, 2006. 50 A trial court in Swabi had sentenced him to death on October 6, 1998 for the April 1996 murder of five people. During his appeal he provided the court with a school-leaving certificate to support his claim that he was 16 at the time of the killings, and argued that authorities knew he was a juvenile because they held him in the juvenile wing of the Peshawar Central Prison for two years. The Peshawar High Court and the Supreme Court both rejected his appeal, on the grounds that the 2001 Presidential Commutation Order did not apply because his age had not been recorded at trial.

27 Sudan acceded to the International Covenant on Civil and Political Rights on March 18, 1986, and ratified the Convention on the Rights of the Child on August 3, 1990. Pakistan ratified the Convention on the Rights of the Child on November 12, 1990 and signed the International Covenant on Civil and Political Rights on April 17, 2008.

28 The Sudan rate is for the period from 1999 to 2006, and is the percentage of children less than five years of age that were registered at the moment of the Multiple Indicator Cluster Survey . However, the reliability of MICS surveys  in Sudan is disputed, and according to at least one estimate birth registration may be closer to 47 percent. See UNICEF, Sudan Statistics, (accessed August 11, 2008); New Sudan Centre for Statistics and Evaluation in association with UNICEF, “Towards a Baseline: Best Estimates of Social Indicators for Southern Sudan,” May 2004,,%202004,%20NSCSE,%20UNICEF.pdf (accessed September 4, 2008). The Pakistan rate is the result of a survey conducted by Plan International in collaboration with Provincial Governments, in conjunction with a 2005-2007 government project to improve birth registration. Government of Pakistan, Third and Fourth Consolidated Report to the Committee on the Rights of the Child, undated, (accessed August 12, 2008), para. 159.

29 The Constitution also delays for two years the execution of females who are pregnant or lactating. Interim National Constitution of the Republic of Sudan, Republic of Sudan Gazette, Special Supplement no. 1722, July 10, 2005, arts. 3, 36.

30 Penal Code of Sudan, arts. 51, 53, 126, 130, 146, 148, 168.

31 Penal Code of Sudan, arts. 27, 28, 130.

32 Child Law of 2004, arts. 61(d), 68(1)(a).

33 Child Law of 2004, art. 4.

34 Penal Code of Sudan, arts. 3, 8, 9.

35 Article 55 gives juvenile courts jurisdiction over cases involving juvenile offenders (al-atfal al-janihun, defined in the law as children over seven years and under 15 years at the time of the crime) and cases of children at risk of committing crimes or who are victims of violations, which would seem to exclude children over age 15. However, article 58 requires criminal courts to transfer children’s cases to the juvenile court and permits the juvenile court to take appropriate measures. In cases of children over 15 at the time of the offense, these measures are limited to placement in a juvenile detention facility. Child Law of 2004, arts. 4, 55, 58, 68.

36 Schedule F of the Interim Constitution calls for conflicts to be resolved taking into account the sovereignty of the nation while accommodating the autonomy of Southern Sudan, the need for norms or standards, the principle of solidarity, and the need to human rights and fundamental freedoms. Interim Constitution of Southern Sudan, art. 25(2), Schedule F.

37 Draft Children’s Bill for Southern Sudan, 2005, art. 18(a). Copy on file with Human Rights Watch.

38 See “Sudan: Detainees Suffer Arbitrary Arrest, Execution: Sudanese Government Should Commute Death Sentences, Grant Fair Trials,” Human Rights Watch news release, September 7, 2005,

39 These include Mohamed Adam Zarieba, age 16 when sentenced to death on July 31, 2008; Al-Tayeb Abdel Aziz Ishaq, age 16 when sentenced to death on November 10, 2007; Abdelrhman Zakaria Mohamed and Ahmed Abdullah Suleiman, each age 16 when sentenced to death in May 2007; Kamal Hassan Abd al-Rahman, sentenced to death for a crime committed on March 11, 2004, when he was 15; and Nagmeldin Abdallah, age 15 when sentenced to death in May 2003.

40 Human Rights Watch telephone interview with Ali Agab, Legal Aid Officer, Khartoum Center for Human Rights and Environmental Development, Khartoum, August 25, 2008.

41 Appeal to the Constitutional Court in the Case of Kamal Hassan`Abd al-Rahman, Supreme Court Case 56/executions/2007.

42 For a detailed discussion of the death penalty in Pakistan, see Human Rights Watch Letter to Pakistan's Prime Minister to Abolish the Death Penalty, June 17, 2008,; and FIDH and Human Rights Commission of Pakistan, “Slow march to the gallows: Death Penalty in Pakistan,” no. 464/2, January 2007, (accessed May 22, 2008).

43 Juvenile Justice System Ordinance, arts. 2(b), 7, 12.

44 For a detailed discussion of the Juvenile Justice System Ordinance, see Amnesty International, “Pakistan: Protection of juveniles in the criminal justice system remains inadequate,” ASA 33/021/2005, October 1, 2005, (accessed May 25, 2008).

45 In addition, in 2004 the Lahore High Court revoked the ordinance, although a February 2005 Supreme Court ruling reinstated it pending a final ruling. The Supreme Court has taken no further action on the case.

46 Human Rights Commission of Pakistan, State of Human Rights in 2007, pp. 167-168, (accessed May 25, 2008).

47 See for example,”Peshawar: Death sentence to juvenile offender upheld,” Dawn Newspaper, Karachi, August 24, 2003, (accessed May 25, 2008), and the Supreme Court ruling in the case of Rehmatullah alias Raja vs. Home Secretary, Punjab, Lahore, petition no. 1480 of 2004, decided on June, 28, 2004, reproduced in Supreme Court Monthly Review (SCMR) 1861, vol. XXXVII (2004).

48 Presidential Commutation Decree, Official Gazette of Pakistan, December 13, 2001, art. 1(a), as reproduced in Supreme Court Monthly Review (SCMR) 1861, vol. XXXVII (2004). Under Pakistani law life imprisonment is for a minimum period of 15 years and a maximum period of 25 years.

49 The same study also noted that in June 2006, 40 children were reportedly lingering in Sargodha District Jail death cells, but did not provide additional information. FIDH and Human Rights Commission of Pakistan, “Slow march to the gallows,” p. 38.

50 See FIDH and Human Rights Commission of Pakistan, “Slow march to the gallows,” and “Condemned Prisoner Executed,” Dawn Newspaper, Karachi, June 14, 2005,