OPINION No. 29/1999 (SUDAN)
Communication addressed to the Government on 31 May 1999; urgent appeal
sent to the
Government on 26 April 1999
Concerning Father Hillary Boma Awul, Father Lino Sebit and 24 others
The State is a party to the International Covenant on Civil and Political
Rights
1. The Working Group on Arbitrary Detention was established by resolution
1991/42 of the
Commission on Human Rights, which extended and clarified its mandate in
resolution 1997/50.
In accordance with its methods of work, the Working Group transmitted the
above-mentioned
communication to the Government.
2. The Working Group thanks the Government for the information it provided
in reply to its
urgent appeal of 26 April 1999, but regrets that the Government has not
replied to its request for
information of 31 May 1999.
3. The Working Group regards deprivation of liberty as arbitrary in the
following cases:
(i) When it manifestly cannot be justified on any legal basis (such as
continued
detention after the sentence has been served or despite an applicable amnesty
act)
(category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence
for the
exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18,
19, 20
and 21 of the Universal Declaration of Human Rights and also, in respect
of
States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International
Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international
standards
relating to a fair trial set forth in the Universal Declaration of Human
Rights and
in the relevant international instruments accepted by the States concerned
is of
such gravity as to confer on the deprivation of liberty, of whatever kind,
an
arbitrary character (category III).
4. The source notes that the communication concerns the following individuals:
Father Hillary Boma Awul; Father Lino Sebit; Patrick Celestino Morajan;
Leoboldo Odira Rahmatallah; Joseph Adhiang Langlang; Faustino Awol Aduroc;
Hassan Abdallah Kenya Adam; Nyok Awar Palak Abu Zinc; Rizig Ambrose Angoya;
Faustino Awol Odong; Charles Oling Dommic; Gabriel Marong Deng; Babiker
Fadlallah Abdalla; Kual Boi Beda; Lual Lual Aciek; Mustafa Shamsoon Idris;
Babikir Mohamed Idris; Karkoun Nawek Daoul; Francis Mabjor; Abdallah Col;
Peter Kong; Hassan Abu Adhan; Louis Ojori; Joe Awet Dominic; Khalid Yang;
and
Garang Malek Bak.
5. Father Lino Sebit was arrested on 29 July 1998, at a military command
station near
Khartoum. Father Hillary Boma was arrested on 1 August 1998. The Working
Group had
previously addressed an urgent appeal to the Government of the Sudan on
behalf of these
two individuals on 4 September 1998; on 26 April 1999, another urgent appeal
was sent on
behalf of all the above individuals by the Working Group and the Special
Rapporteurs on the
independence of judges and lawyers and on extrajudicial, summary or arbitrary
executions.
6. The other above-mentioned individuals were reportedly arrested in August
or
September 1998, in connection with bomb explosions at several civilian
installations near
Khartoum on 30 June 1998; no one is said to have been killed or injured
in those explosions. It
is believed that no arrest warrant was shown to the individuals. All of
them reportedly were
subsequently charged with various offences under the Sudanese Penal Code
of 1961, including,
under articles 21 and 24, criminal conspiracy; under articles 50 and 51,
undermining the
Constitution and waging war against the State; and under articles 63 and
65, violent opposition
and creation of criminal organizations. Individuals charged with these
offences risk the death
penalty under articles 50 and 51 of the Penal Code. It is contended that
the President of the
Sudan has stated that anyone convicted of the crimes would be hanged and
subsequently
crucified.
7. According to the source, the above-mentioned individuals have been
held in
incommunicado detention since their arrest, at a military detention facility
in or near Khartoum.
Access to their families, doctors and friends is said to have been denied
altogether and access to
their legal representatives is said to have been extremely limited. It
is contended that the
authorities obtained confessions under duress from each of the individuals
of their involvement
in the bombings. The tribunal is said to have heard testimony from the
defendants to the effect
that their confessions were in fact obtained under duress.
8. The three military judges trying the case are said to report through
the chain of command
to the very authorities prosecuting the case, thereby gravely compromising
the independence and
impartiality of the tribunal. The source alleges that the above-mentioned
individuals had no
access to legal counsel during their interrogation by the security forces
and that they were not
allowed to obtain legal advice until 5 October 1998, the day their trial
began. Allegedly, lawyers
wishing to represent the individuals were not informed of the trial date
until 24 hours before its
start. The tribunal selected a team of lawyers from a proposed list.
It is said that five of
the proposed lawyers were rejected by the tribunal. Moreover, it is said
that only 20 of
the 26 individuals were produced in court and that the other 6 were tried
in absentia.
9. During the trial, the lawyers had no opportunity to meet with their
clients under
conditions that would have ensured confidential communication. The trial
is being conducted in
secrecy; members of the public, observers and journalists are allegedly
not permitted to attend.
10. The source alleges that the tribunal consists of three military officers
and a civilian
representing the Ministry of Justice. All of the accused, except one,
are of the Christian faith and
the majority of them come from southern Sudan and do not speak or understand
Arabic, the
language used in the court proceedings.
11. The prosecution reportedly has introduced at the trial confessions
which were reportedly
obtained under duress and pressure; the source finds it improbable that
all of the accused
confessed voluntarily. The prosecution has undertaken to re-enact the crime
scenarios, as
alleged in the charge sheet before the tribunal. The individuals re-enact
their respective roles as
“confessed� by them in the commission of offences statement. The source
also reports that the
prosecution’s case relies entirely on the confessions.
12. The above-mentioned individuals filed a petition in the Supreme Court
of the Sudan
questioning the jurisdiction of a military tribunal over the case and requesting
its transfer
to a civilian court. The Supreme Court has reportedly entertained the petition,
and
on 10 December 1998 stayed the proceedings. The petition is said to be
pending for final
hearing and disposal before the Supreme Court.
13. The Working Group, in a spirit of cooperation and coordination, has
also taken into
account the report of the Special Rapporteur on the situation of human
rights in the Sudan,
whose mandate was established by resolution 1993/60 and renewed by resolution
1999/15 of the
Commission on Human Rights (E/CN.4/1999/38 and Add.1).
14. In the light of the allegations that have been made, the Working Group
welcomes the
cooperation of the Government in respect of the urgent appeal of 26 April
1999. The Working
Group has transmitted this reply to the source, which has communicated
supplementary
observations to the Working Group.
15. In its reply to the urgent appeal, dated 6 May 1999, the Government
of the Sudan
maintains that:
(a) Father Lino Sebit and Father Hillary Boma were arrested and charged
in
connection with the bombings in Khartoum on 30 June 1998;
(b) The bombings targeted vital civilian installations, including electric
power
stations and a theatre/movie house;
(c) The testimonies revealed that Father Lino Sebit and Father Hillary
Boma and
others were supervising the plot and financing it. Therefore, they were
accused under
sections 50 and 51 of the Criminal Law Act 1991 and are being tried before
a military court
under the Armed Forces Act 1986. Hence, they were arrested in accordance
with the law;
(d) They are being treated in accordance with the law, which guarantees
their right to
physical integrity and not to be subjected to any inhuman or other forms
of degrading treatment.
The accused persons have been given due access to legal defence of their
own choice of nine
lawyers led by Abel Alier, ex-Deputy President of the Republic. They also
have been given
access to adequate medical care;
(e) The Constitutional Court has recently stayed the proceedings in the
trial court in
order to take decision as to the constitutional objection raised by the
defence lawyers to the
effect that civilians should not be tried before a military court.
16. In its supplementary detailed observations, the source observes that
in its reply, the
Government of the Sudan does not deny a substantial number of the allegations.
The
Government’s statements regarding the remaining charges are disputed in
the report of the
Special Rapporteur of the Commission and by other reputable independent
observers. Thus, the
Government has not denied that:
(a) Six petitioners are being tried in absentia and that the Government
has not
investigated their disappearance, even though all six had been taken into
custody by the security
services. More disturbingly, the Government continues to refuse to investigate
the
disappearance of the six men even though there is credible evidence that
some or all of them
have been killed as a result of torture;
(b) The alleged victims’ coerced confessions were used as evidence against
them.
The Government does not deny that it repeatedly interrogated and obtained
“confessions� from
some of the victims prior to the Government’s appointing counsel, and that
the Government
continues to use these confessions as “evidence� against the detainees
in violation of article 15 of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or
Punishment. The Special Rapporteur, in his report, confirmed that the above-mentioned
individuals “were brought to trial before the military court on the basis
of confessions made
under duress and video evidence extracted from them at gunpoint� (E/CN.4/1999/38/Add.
1,
para. 127), notwithstanding article 14 (3) (g) of the International Covenant
on Civil and Political
Rights, whereby no one shall be compelled to testify against himself or
to confess guilt, and
article 15 of the Convention against Torture;
(c) The alleged victims were denied the right to be treated by doctors
of their choice.
Thus, the Government does not deny that it refused to allow the petitioners
to be visited and
treated by their own doctors. As pointed out by the Special Rapporteur,
the Government does
not provide medical treatment to the petitioners;
(d) The alleged victims may be subject to execution by hanging or crucifixion.
17. As to the other, remaining charges, the source notes that the Government’s
claim that
“the accused were treated in accordance with law, which guarantees their
right to physical
integrity …� has been contradicted by the Special Rapporteur who, in his
report, observed that
all “the detainees interviewed … bore marks of severe torture of which
the Special Rapporteur
has taken photographic evidence� (ibid.). Additional support for the victims’
claim that they had
been tortured is said to come from the military tribunal itself, which:
(a) has refused to
investigate their multiple claims of torture; (b) has prevented them from
gaining access to
independent physicians or witnesses; (c) has accepted undated and unauthenticated
medical
“reports� issued at the military’s request; and (d) has shown no intention
in investigating the
disappearance of six of the victims who were last seen in the custody of
security forces on a
military base. These actions and inactions of the military tribunal are
said to lend credence to the
allegations that government security forces tortured the petitioners. Contrary
to the
Government’s claim that the victims were “given due access to legal defence
of their own
choice�, the source reaffirms that the Government selected counsel for
the defendants and that
their first access to defence counsel was more than two months after arrest
and one day after the
trial itself had started. Furthermore, it remains uncontested that the
defendants were denied the
right to communicate confidentially with their counsel.
18. Also, contrary to the Government’s assertion that the tribunal allowed
journalists and the
media to attend the trial, it is reaffirmed that the trial has been conducted
in almost total secrecy.
Thus, the source notes that the defendants are unaware of any independent
journalists or
international media representatives having attended the trial. The secrecy
of the trial is said to
contravene article 14 (1) of the International Covenant on Civil and Political
Rights.
19. The source recalls that despite the Government’s assertion that the
victims were tried for
their alleged participation in bombings of civilian targets, the Special
Rapporteur concluded
differently, arguing that the case “bears all the features of a political
trial. The accused are
southerners, mostly Christian, and the best known, Father Hillary Boma,
a priest, is an outspoken
opponent of the regime� (ibid., para. 126).
20. Finally, the source notes that it does not suffice for the Government
to say that the
accused were allowed to meet with their families while the court was in
session. Even if this
assertion were true, the Government’s refusal to allow the defendants to
receive visitors outside
the court sessions would be a violation of international law, as the right
of the accused is not
limited exclusively to periods when the court is in session.
21. The Working Group notes that the Special Rapporteur on the situation
of human rights
in the Sudan made a number of specific observations concerning the trial
of the
above-mentioned 26 persons before the military court in his report to the
Commission on Human
Rights dated 9 April 1999 (E/CN.4/1999/38/Add.1). The Working Group notes
that in its reply,
the Government of the Sudan does not deny many of the charges levelled
against it by the
source, namely (a) that six of the accused were tried in absentia, and
there are even fears that
they have disappeared; (b) that the confessions obtained from some of the
accused under duress
have been used as evidence against them, in violation of article 15 of
the Convention against
Torture (this is confirmed by the Special Rapporteur in paragraph 127 of
his report); and (c) that
the accused have been denied the right to be treated by doctors of their
choice. According to the
Special Rapporteur, the Government of the Sudan has reportedly denied the
accused medical
treatment.
22. On the other hand, the Government denies that the accused have been
tortured. Again in
paragraph 127 of his report, however, the Special Rapporteur alleges that
all the detainees he
interviewed had been subjected to ill-treatment and that some of them bore
marks of severe
torture, of which he had taken photographic evidence. Likewise, the Government’s
claim that
the accused had access to counsel of their choice was refuted by the Special
Rapporteur, who
noted that the first time such access had been granted was in early October
1988, more than two
months after their arrest and one day after the trial had begun.
23. According to the Government, the accused are being prosecuted for causing
explosions in
Khartoum on 30 June 1998. The source contends that the trial is basically
political in nature, a
view shared by the Special Rapporteur, who notes that the accused are from
southern Sudan,
most are Christian and the best known of them, Father Boma, is a prominent
opponent of the
regime.
24. The source also reports that the accused are civilians, but that they
have been tried before
a special military court. It also recalls that, in the past, the Working
Group has on several
occasions stated that military courts are principally to blame in cases
of arbitrary detention.
Moreover, the proceedings against the above-mentioned individuals have
been stayed by a
decision of the Supreme Court of 10 December 1998 pending a ruling on the
appeal lodged by
the accused, who are challenging the competence of the special military
court.
25. In the light of the foregoing, the Working Group renders the following
opinion:
(a) The deprivation of liberty of Hillary Boma, Lino Sebit and the other
24 accused persons contravenes articles 10 and 11 of the Universal Declaration
of Human
Rights and articles 9 and 14 of the International Covenant on Civil and
Political Rights,
and is of such gravity as to give the character of arbitrariness to the
deprivation of liberty
(category III);
(b) The deprivation of liberty of the above-mentioned persons is arbitrary
because it is apparently based on their political activities, thereby violating
their freedom
of opinion and expression guaranteed by article 19 of the Universal Declaration
of
Human Rights and article 19 of the International Covenant on Civil and
Political Rights
(category II);
(c) The Working Group on Enforced or Involuntary Disappearances should
be
seized of the matter of the apparent disappearance of six of the accused.
26. In the light of the foregoing, the Working Group requests the Government:
(a) To take all necessary steps to ensure the right of the above-mentioned
persons to a
fair trial;
(b) To set the accused free if it has no evidence other than confessions
obtained under
duress;
(c) To take appropriate measures to align procedures with international
obligations
arising from the international instruments to which the Sudan is a party.
Adopted on 30 November 1999
E/CN.4/2001/14/Add.1