Legal aid for rape victim in Sudan
Garssila, a small village in war-torn Darfur, was the theatre of a shocking case in 2010, when a 13 year old girl was brutally raped by an adult man. Defying prevailing stereotypes and social taboos the girl and her family courageously took the case to court, seeking justice. To their shock, the Court in Garssila dismissed the case and accused the victim of adultery.
It was at this stage that the case was brought to the attention of the UNDP rule of law office in West Darfur. The team immediately dispatched a mobile legal aid clinic to Garssila. But by the time the clinic arrived, the Court had already issued its verdict, convicting the young girl of adultery and sentencing her to one hundred lashes, after the delivery of her baby.
Racing against the clock, UNDP legal aid lawyers filed an immediate appeal to the General Court of Zalingei, arguing that the age of the girl and the fact that she had been coerced should reverse the earlier decision. Yet the same conservative legal mentality prevailed, and the previous ruling was upheld. Appealing against this decision, UNDP legal aid lawyers brought the case to the State Appeal Court in El Geneina, the capital of West Darfur. Here the conviction was again upheld – though the sentence was mitigated to 10 lashes.
Citing the National Constitution and international laws pertaining to the rights of the child, the lawyers finally took the fight to the Sudan High Court – the highest Appeal Court in the land. After lengthy deliberations, the Judges of the Court issued a landmark verdict, quashing all previous verdicts, and setting a new legal precedent which will now inform the decisions of the lower courts in similar cases.
In its reasoning, the High Court of the Republic of the Sudan stated that it did not agree with the decision of the Appeal Court of West Darfur that signs of maturity, including the pregnancy of the accused, constituted grounds for criminal responsibility. The Judges stressed that only the age of the accused should have been considered. In doing so the High Court, practically and implicitly, applied the Child Act of 2004 which emanates from the UN Convention on the Rights of the Child. Having established that the crucial factor is age and not maturity, the mere allegation of the accused that she had been raped was sufficient, according to the Islamic jurisprudence, to lift any sentences against her. Accordingly, the High Court reached the following ruling:
Repeal the ruling of both the first court and the appeal courts; and
Repeal the conviction and the sentences against the accused and release her immediately.
Although the decision did not go far enough to incriminate the perpetrator, it will certainly open the door wide for a re-trial should the family of victim wish to do so.
UNDP Rule of Law Officer,
West Darfur, Sudan