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- Year: 2011
- Country: Sudan
- Language: English
- Document Type: Domestic Law or Regulation
The Draft Social Control Act, 2011, for
Flogging into Submission for the Public Order
1. I ntroduction
This Paper – written by Dr. Amin Mekki Medani on behalf of the Project for Criminal Law
Reform in Sudan – forms part of broader efforts by Sudanese civil society to raise awareness
about the repressive nature of Sudanese public order law. This campaign advocates for a repeal
or amendment of provisions incompatible with applicable national and international human
rights standards. 1 The current draft of the Social Control Act, 2011, for Khartoum State 2
entrenches repressive features of Sudanese p ublic order law for the capital, which carries
particular symbolic weight for Sudan as a whole, and fails to reflect any of the concerns or
indeed proposals for change that have been expressed and made in recent years. Besides
signalling a lack of responsi veness and willingness of the State legislature to constructively
engage in public debates, the current draft demonstrates a disregard for human rights,
including in particular women’s rights. This is starkly illustrated in the types of punishment
envisage d, especially flogging as a staple sanction for a range of infractions, however trivial. A
reading of the draft suggests that the order envisaged by the law is not for the public but
imposed on the public. Given the recent history of public order laws, its broad scope further
opens the door to arbitrary law -enforcement, often at the expense of individuals and groups
who are already marginalised. Indeed, the very name of the draft law makes its use as a tool of
control explicit and does not bode well for the post -separation period in Sudan.
Public Order Acts are certainly not an innovation or creation of the current Government of
Sudan (GoS). Most countries, either at central or, most likely the municipal levels, have
legislation or bylaws (whether known as Acts, Ordinance, Orders or Regulations) aimed at
maintaining public order, health, the environment, safety and tranquillity. Such rules are not
restricted to undemocratic or oppressive regimes and can be found under all types of
governments. It is an ordin ary normal process meant to make life easier, more pleasant and
less repulsive or offensive for the whole population, regardless of any political or other
motivation. Indeed, as a matter of international law and many constitutions, states are duty –
1 See, for example, Strategic Initiative on Women in the Ho rn of Africa (SIHA), Beyond Trousers: The Public Order
Regime and the Human Rights of Women and Girls in Sudan , A Discussion Paper, Submission to the 46 th Ordinary
Session of the African Commission on :uman and Peoples’ Rights, Banjul, the Gambia, 12th Nov ember 2009,
pdf ; Asma Abdel H alim, ‘Gendered Justice: Women and the Application of Penal Laws in the
Sudan ’, in Lutz Oette (ed), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan ,
Ashgate, 2011 (forthcoming) (Arabic version available at
Perspectives_for_Sudan_Arabic.pdf ) and Nabil Adib, The Public Order Act as an instrument of violence against
women , 2011 (on file with Project on Criminal Law Reform in Sudan). 2 The report is based on a draft obtained by the author; the draft has not been made public; neither has it been
circulated or introduced in the State legislature.
bound to protect the population against any violation of their rights, including where relevant
acts are “committed by private individuals or entities”. 3
In authoritarian and oppressive regimes, in addition to arbitrary laws, states of emergency, so –
called anti -terrorism legislation, restrictions on freedoms of speech, peaceful assembly,
association , freedom of the press, lack of independence of the judicial system, and high
handedness of security and police officers subjecting individuals to arrest, detention, to rture
and imprisonment, the authorities tend also to use “public order” regulations as an added
instrument of oppression. 4 Targets, rather victims, of such practices are essentially political
opposition members, NGO human rights activists, trade unionists, students and women. The
basic rationale for public order laws in these circumstances is to suppress any opposition to the
regime and to stifle any claims or popular demands that seek to realise democratic goals or
advocate for better economic, social or c ultural conditions of life. Those behind such claims are
generally described in the government -controlled media as “power seekers”, “terrorists”,
“anarchists”, “agents of foreign powers agendas”, “anti -=slamists” or “perverted youth” seeking
to import immo ral value s into the Islamic society. In such atmospheres what is known as
“public order” or “public control” regional legislation is no more than additional venom to
silence any opposition or criticism of the regime.
The so -called Public Order legislatio n owe their origin to the 1983 “=slamization” of society
through the introduction of Sharia “September laws”, including the imposition of Sharia
huddud punishments. 5 Under this pretext the then regime created a reign of terror through
declaring a state of emergency which authorized security officers to chase people in their
homes, clubs, and then to take them before especially established Kangaroo “prompt justice
courts”. These courts tried persons summarily with no right of appeal and instantly enforced
se ntences of flogging, imprisonment, fine and confiscation of homes or possessions for offences
of drinking alcohol, gambling, mixing of sexes without family bonds or unlawful gatherings.
These practices were so offensive that momentum for opposition grew sp eedily, resulting in the
1985 popular intifada (uprising) which toppled the Nimeiri regime. However, the democratic
governments which ruled the country in the period 1985 -1989 failed to repeal the September
laws. A military coup d’etat brought the National Islamic Front to power in 1989; the new
regime reinstated a state of emergency and a curfew which lasted for a few years. When the
state of emergency was finally lifted, the policy of repression started to be implemented
through what is now known as “publ ic order” laws passed in each of the fifteen State as a
regional law and measure of incrimination of social behavio ur considered (by the authorities) as
immoral or against the Sharia . These Orders prohibit and sanction acts of sedition, unlawful
3 Human Rights Committee, General Comment 31, The Nature of the General Legal Obl igation imposed on States
Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para.8. 4 See on the panoply of repressive legislation in Sudan, Amin M. Medani, ‘A Legacy of =nstitutionalized Repression:
Criminal Law and Hustice in Sudan’, in Oette, Criminal Law Reform and Transitional Justice (forthcoming) and for an
overview of applicable international standards, ibid. (Available in Arabic at
Perspectives_for_Sudan_Arabic.pdf ) 5 Huddud punishments comprise death by stoning, crucifixion, amputation, cross amputation and flogging .
assembly, waging war against the government, rioting, offences affecting public health, safety,
decency and morals. In addition, the present 1991 Criminal Act penalizes sedition, terrorism,
rioting, disturbing the public peace, polluting the environment, public nuis ance, drinking
alcohol and gambling, sale of noxious food, insulting religious creed, gross indecency and
offending public morality, the latter particularly in its article 152. 6
It is noticeable that these public order laws, which are now common in all N orthern Sudanese
States , tend to emphasis three main areas: first ly, provisions relating to health, hygiene,
environment, cleanliness that seek to promote and ensure order and social tranquillity ;
secondly, social values and public morality ; thirdly, adhe rence to so -called Islamic principles
and values in social life.
It is readily apparent that the first objective is both acceptable and desirable for the sake of all
people, wherever they may be, regardless of the nature of the political regime in office.
However, the obligation of the citizen to comply with relevant requirements presuppose s that
the gove rnment, for its part, fulfil s its duties towards the citizens in return for the taxes they
pay to it. This includes services such as good roads, drainage systems, efficient public transport,
public rubbish and garbage collection bins, public toilets, working drainage systems, a system of
social insurance benefits for the poor and the unemployed, old and homeless peoples’
residence s and residential clinics f or the mentally sick. It contravenes basic principles of justice
and fairness to punish people for non -conformity to certain standards of behaviour if the
required infrastructure – which would allow them to act “lawfully” – is not available.
Second, th e question of the so -called moral values of Sudanese society should not be stretched
in such a way as to render punishable acts of persons who act within prevailing custom even if
considered reprehensible by some, such as selling goods or food or drinks in public wearing
“appropriate clothing”, selling cattle outside enclosures, leaving pa rts of cars, building
materials, empty packing boxes, smoking sisha in public or leaving broken down vehicles on the
road, living in places under construction or planned p lots.
Finally, the enforcement by means of punishment of what is assumed to be Islamic values is
stretched to prevent acts that are not necessarily contrary to religion as understood in Sudan.
In fact some are traditional practices in certain groups wit hin society as, for example, “mixed”
dancing, queues of men and women in one line, mixing between men and women in sports,
using loudspeakers in parties such as weddings presumably to avoid disturbing neighbours who,
as a matter of custom, usually partake in the whole ceremony, or preventing commercial
activities when calls for prayer are announced from the mosque.
6 Article 152 Criminal Act of 1991: “(1) Whoever commits, in a public place, an act, or conducts himself in an
indecent manner, or a manner contrary to public morality, or wears an indecent, or immoral dress, which causes
annoyance to public feelings, shall be punished, with whipping, not exceeding forty lashes, or with fine, or with
both; (2 ) The act shall be deem ed contrary to public morality, if it is so considered in the religion of the doer, or the
custom of the country where the act occurs.”
The State Legislative Council for the capital, Khartoum is now considering a new draft law to
replace the existing 1996 one. The organization r esponsible for implementation of the Act is a
Council of Officials constituted by the Wali (Governor) of the State of Khartoum, including
concerned Ministers, Administrators of local governments of the State and the Director of the
State Police, who is als o the Director and Rapporteur of the Council. 7 It is remarkable that the
commission includes no civil society representatives, religious persons or experts on social
This Paper reviews the proposed legislation in the prevailing socio -political context, the latter
being in clined towards so -called Islamis ation of public life, even at the cost of rights and
freedoms of the individual as recognized by the Bill of Rights included in the Interim National
Constitution (INC) and the International Bill of Rights, particularly the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR). The purpose of the Paper is to contribute, critically and objectively, to
the discussi on of the proposed legislation in the media and within discussion groups,
parliamentarians, academicians and human rights activists. It aims to demonstrate the
unconstitutionality of the proposed legislation and its impact on day to day behavio ur so that
the general public is made aware of the shortcomings of the proposed Act and can take the
necessary steps to restore their rights and dignity.
2. The Draft Social Control Act of 2011
2.1.1. Introductory Part
Sections 1 -8 of the draft l egislation deal with the name of the Act (section 1); its geographic
application (section 2); repeal of the current 1998 Act 8 (section 3); definition of certain terms
used in the Act (section 4); objectives of the legislation (section 5); and principles of general
application (section 6). Section 7 defines the membership of the High Council for Social
Protection and section 8 the powers of the Council relating to the realisation of the Act’s
7 The Council is concerned with the coordination of official and popular efforts to protect society against assumed
har mful thoughts and habits, review plans and programmes aimed at “protecting” society, facilitating the work of
the Administration, overcoming obstacles thereto, engaging official and popular efforts for such purposes,
assessing the Director in fulfilling hi s functions, formulating work regulations and any other functions the Council
may deem necessary. 8 The text of the 1998 Act is available from: https://www.pclrs.org/Khartoum_Public_Order _Act_1998.pdf
Sections 5 of the Act, shows in clear terms the inte ntion of the Act to impose social control
rather than “public order”. =t describes the objectives of the Act as contributi ng to ensuring
public security and tranquillity, conservation of the social fabric and public appearance. This is
to be done in accord ance with respectful values, promoting social efforts for the service and
purity of society and reinforcing good values and fighting vice and perverted and immoral
Section 6 lays down the general principles which govern the application of the A ct. These
include some general and some supposed Islamic principles of social behavio ur such as
promoting good values and prohibiting bad deeds. Specialized institutions should promote
morality; social progress, purifying society through wisdom and good ad vice according to law;
avoidance of any act which insults or degrades human beings; prevention of all deeds or sayings
which result in excitement, unlawful companionship between different sexes, and crowding
among sexes except when deemed necessary; abstai ning from obstructing resources and
pollution of the environment; avoidance of corrupt practices takes precedence over realizing
benefits; caring for mentally ill persons and weaker persons by returning them to their families
or putting them in care homes; prevalence of wisdom and gradual treatment through advice
and advisory guidance first , followed by official dealing and, finally requiring a written
undertaking to abstain from unacceptable behavio ur or repeating it; and, applying
confidentiality and avoi dance of publication, whenever possible.
2. 1. 2. Crimes and Punishments
Sections 9 to 43 of the draft Act define offences that are committed in violation of the Act and set the
punishments prescribed therefore. These could be generally described as follo ws:
Section 9 : punishes abetment or aiding a person for the act of becoming a “vagabond” or organizing a
group of persons to become vagabonds for up to six months imprisonment or flogging up to hundred
lashes. =n case the abetted person is a “child” withi n the definition in the Child Act the punishment may
be up to one year imprisonment of flogging up to hundred lashes. The Act defines a vagabond as any
person with no apparent or known habitual residence or a means of earning his living. The Section
empowe rs the Administration of the Council to “collect ” vagabonds and deliver them to specialized
social care homes. No such formal homes are known to exist.
Section 10 : punishes “begg ing in public places” or benefiting from it with up to 50 lashes or one year
imprisonment or both. Money obtained as a result of begg ing is liable to be compensated.
Section 11 : A person convicted of organising networks of begg ing is liable to up to five years
imprisonment and a fine. If the network includes children or disabled p ersons the punishment can
exten d to ten years imprisonment.
Section 12 : The provision punishes collection of donations for charities, without a written permit from
the Minister or commissioner concerned according to jurisdiction, with a fine or up to 100 lashes or
both; the acts are also liable to imprisonment of up to one year with confiscation of the benefits
Section 13 : Subject to the relevant provisions of the 1991 Criminal Procedure Act , the Administration
may “collect ” any mentally ill pe rson from public places and deliver them to mental and psychological
health institutions, and may also deliver them to their relatives with an undertaking to keep and care for
them. Any person who undertakes to take care of such persons and fails to do so shall be liable to a fine,
regardless of rectifying any damage resulting from neglect.
Section 14 : Any person who practices, manages or permits the practice of sorcery or witchcraft 9 may be
punishable with up to year’s imprisonment or fine and may be liab le to punishment of 100 lashes.
Section 15: Whoever urinates or relieves himself on streets, public areas or water resources shall be
liable to up to 100 lashes.
(1) No commercial activity shall be carried out during Friday’s noon prayers time.
(2) All commercial shops, clubs, public parks shall be closed at or before midnight except during
Ramadan and on occasions decided by the Wali who shall determine the closing time then.
Any breaches of the provisions of subsection (1) and (2) are to be punishe d with a fine or up
to 100 lashes or imprisonment for a period not exceeding two years , or with both.
(1) Taking into consideration the current laws regulating trade licenses and business names, no
license shall be issued or renewed for any place i f the name of that place conflicts with
religious beliefs, values, morality or public taste.
(2) Any person who breaches Subsection (1) shall be punished with a fine and the licence in
breach shall be removed.
(1) Any person who exercises peddling on cross roads and side streets, or exhibits merchandise
or goods or offers services in the main markets shall be punished with 50 lashes or
imprisonment up to one year or both and the possible confiscation of the goods displayed.
(2) Except in main markets and t own centres, the local authority may issue temporary trade
licenses inside smaller markets taking into consideration the requirements of public health,
security, traffic, morality and public appearance.
(1) Sellers of food and tea shall comply wit h the following:
(a) Not engaging in sale except with the approval of the local authority on the
recommendation of the Administration.
(b) Wearing appropriate clothing and following good conduct and public morality. 10
9 This is defined in section 4 of the Draft as verbal or actual practices leading persons to believe in obtaining
benefits to him or harm to another including spiritual domination through trances (zar), magic, sand tracking or
astrology or any allegations of fortune telling.
(c) Not exercising their work after 11 p.m.
(d) Any per son who commits a breach of such conditions shall be punished with fine
and the Court may confiscate the utilities used.
Section 20 :
Persons working in public squares, parks or recreation areas, cafeterias, communication centres,
internet cafes, perfumer ies, celebration halls, exhibitions, sports areas shall comply with the regulations
passed by the Director in accordance with this Act. Anyone in breach thereof shall be punished with a
(1) No person shall engage in the sale of food or drink during the day time of the month of
Ramadan except with the approval of the Commissioner concerned on the recommendation
of the Director on exceptional grounds.
(2) Any person who engages in such sale during the day time during the month of Ramadan
without a pproval shall be punished with up to 100 lashes or imprisonment up to one year or
Section 22 :
Any place which operates or shall operate by organizing queues for citizens must separate men from
women and the public shall comply therewith. Those in breach of this Section shall be punished with
fine or up to 50 lashes.
Section 23 :
Taking into consideration relevant local orders, sale of cattle outside enclosures specified therefor by
the municipalities is prohibited. Persons in breach thereof sh all be liable to fine.
(1) No building materials or left overs, containers, vehicle frames, broken down cars may be left
in public streets or in front of commercial places. Persons in breach thereof shall be subject
to a fine and immediate removal of the item concerned.
(2) The person responsible for violation shall bear all costs of removal in case he fails to comply
with the provisions of Subsection (1).
(1) It is not allowed to throw away any waste or leftovers in public streets and places in any
(2) Taking into consideration the provisions of any other law it is not permitted to carry any
material which may expose street users to danger or causes pollution of the environment or
public street, except after taking all precautionary and sa fety measure.
(3) Whoever violates these provisions shall be punished with a fine or flogging up to 100 lashes
10 Such provision is still widely seen as pretext for harassing “tea ladies” and others. There is no definition of
“appropriate” or “=slamic” clothing and women are regularly abused or intimidated and forced to pay bribes .
(1) It is not permitted to smoke, offer or deal in Shisha (hubble bubble) in public places.
(2) Whoever is in breach of the above shal l be punished with a fine and the Court may
confiscate the Shisha and its equipment.
Section 27 :
It is not permitted to smoke or use tumbak (snuff) in public transport vehicles or closed public places.
Any person in breach of this shall be punished with up to 100 lashes or a fine.
Section 28 :
It is not permitted to wash vehicles on paved roads, parking areas or public parks, except in places
designated for such purpose by the municipality. Any person in breach thereof shall be punished with a
fine or u p to fifty lashes or both.
Subject to the cur rent law of traffic ragshas (rick shaws) cannot be used for passenger transport or goods
between 12:00 midnight until 6.00 a.m. subject to imposition of a fine.
Section 30 :
Carts pulled by animals shall not be used for any purpose or on any paved roads an d main markets and
town centres , subject to the imposition of a fine.
(1) The following conditions shall apply to the use of microphones or commercial generators in
(a) Gene rators shall be affixed to a base to prevent vibration in land and neighbo uring
(b) Observing measures of safety;
(c) Exhaust pipes shall be supplied with a pipe to reduce the degree of noise.
(2) Anyone who breaches these conditions shall be subject to a fine and removal of the cause of
Loudspeakers and recording equipment shall not be used at commercial places and public transport in a
manner that may cause disturbance , subject to a punishment of a fine or flogging up to 50 lashes , or
(1) No private parties can be organized except with the approval of the Director and the
organizers, persons attending, the singer and his group shall comply with the following:
(a) Not to disturb public peace and order; 11
(b) Not to use firearms;
(c) Conform to decent dress; 12
(d) Prohibition of mixed dancing;
11 The Act does not define public peace and order, or disturbance thereof. 12 The Act does not define what constitutes “decent dress”.
(e) Not to use the microphone during prayer hours;
(f) Not to extend the party beyond 12:00 midnight;
(g) Not singing “lowly” songs.
(2) Any person who breaches Subsection (1) shall be imprisoned with fine and the equipment
and devices used may be promptly confiscated.
(3) If the party is in a public place the authority responsible for managing the plac e shall be
responsible for the punishment for breaching Subsection (1) and the court may in such a
case increase the p unishment.
(1) Taking into consideration the conditions stated in Section (32) no public party shall be organized
without the approval of the Director of Police, subject to punishment with a fine.
(2) All conditions stated in Section (32) shall be app lied to public parties;
(3) No parties for graduation from high education institutes shall be held outside the buildings of
(4) The Wali or person delegated by him may extend the time allowed for the duration of the
private or public party in public places, halls and clubs whenever necessary , provided that the
time for the end of the party shall not exceed 1.00 a.m.
No person shall engage in the profession of women hair dressing without obtaining a licence
from the local authority, on re commendation of the Director and compliance with the following
(a) Not employing men inside the place;
(b) Men shall not be admitted inside the place and a sign post to this effect shall be
(c) All entrances to the place shall face the public st reet;
(d) Any person who breaches this provision shall be punished with a fine or flogging up
to 100 lashes.
(1) No statements may be written or pictures or paintings affixed which are contrary to the
faith, public morality, conduct or taste on public means of transport or public places, or
advertising any goods or services or theatrical or cinema shows containing pictures or
comments repugnant to public morals.
(2) The local authority shall determine the places for fixtures, writing and advertisements.
(3) An y person in breach thereof shall be punished with a fine and the substance of breach shall
be promptly removed.
(1) Taking into consideration the current law of building rents, the owner of a building to be
rented or his agent, the representativ e of the estate agency seeking to have the building
rented and the Administrative Committee shall inform the nearest police station responsible
for the Administration on the location of the building and information on the tenant. Breach
of this shall be pu nishable with a fine.
(2) Taking into consideration the law of passports and Immigration, the owner of the building to
be rented to a foreigner, his agent, and representatives of the estate agency which is
engaged in renting the building shall ensure that the tenant and persons using the building
is a foreigner lawfully resident in the Sudan. Breach thereof shall be punishable with fine or
imprisonment up to six months.
(1) Taking into consideration the law relating to current tourist business law in the State of
Khartoum, owners and agents of furnished places for residence shall comply with the
(a) To refrain from allowing furnished places to be used for any purposes contrary to
public morality and public order;
(b) To report to the nearest police station responsible to the Administration all
information on the tenant and copy of his identity papers within 24 hours of
concluding the contract.
(2) The Administration shall verify, register and classify furnished places to ensure compliance
with the cond itions in Subsection (1).
(3) Any person who is in breach of this Section shall be punished with a fine.
Section 39 :
It is not permitted to use a public place for internet network except with approval of the Director, those
in breach shall be punished with a fine or flogging up to 50 lashes , or both.
Section 40 :
Those in charge of public parks or cafeterias shall comply with the following:
(a) Adequate lighting for all parts of the place,
(b) Adequate seating space,
(c) Those in breach of such conditions shall be puni shed with a fine.
(1) It is not permitted to have men and women mixed in the exercise of any sports training of
whatever type, whether in public places or parks or closed halls.
(2) Women and girls must comply with decent dress when exercising any spo rts in a public
(3) Any person in breach of the above shall be punished with flogging or a fine , or both.
(1) The following conditions shall be complied with in steam baths and massage parlours:
(a) Women and men shall not mix in steam baths and m assages;
(b) Special places must be restricted for women and directed by women;
(c) The activities shall not be commenced without the approval of the local authority
after recommendation of the Director;
(d) No massage of a man may be performed by a woman and no massa ge for a woman
may be performed by a man;
(2) Any person who commits a breach of Subsection (1) may be punished by flogging up to 100
lashes or a fine , or both , and the place may be closed for a period not exceeding three
(1) It is not perm itted to live in unfinished buildings or establishing habitation in planned
residential plots to live therein except after making a temporary building for “public
convenience”. Engineering departments concerned shall specify the type of such building.
(2) The following conditions must be satisfied when Khaffirs (guards) use building under
(a) Obtaining approval of the police;
(b) The Khaffir must be of good conduct;
(c) No family, relative or other person may reside in the building with the Khaffir ;
(d) The Khaf fir shall not exercise any commercial activities on the site;
(e) Information shall be reported of any violation of the environment, public health and
public order and security.
(3) Any person who breaches this Section shall be punished with a fine and any unauth orized
buildings shall be removed forthwith.
Without prejudice to the provisions of the applicable Criminal Act any person who commits for the
second time an offence provided for in Sections (9), (10), (14), (16), (18), (19), (25), (26), (27 ), (32), (38),
(42), (43) shall be punished with up to 100 lashes or with fine or imprisonment or with all three
punishments or any two of them, with the possibility of confiscating the equipment used or closure of
the place for up to one year if any of th em belongs to the person convicted or was used with the
knowledge of the owner.
2.2 . C ommentary
The foregoing draft of the new Public Order Act, proposed for the capital State of Khartoum, is
obviously stricter and harsher than the existing law (199 8 Khartoum Public Order Act) which the
new law purports to replace. The current law in force has been the subject of continuous
criticism for its arbitrary violation of basic human rights and freedoms enshrined in the Interim
National Constitution of 2005 and international treaties ratified by Sudan, particularly the ICCPR
and the African Charter on :uman and Peoples’ Rights. 13 The proposed draft for the State of
Khartoum would most certainly set a pattern for similar laws to be adopted in other Northern
13 See above at 1.
Sta tes. It is not yet known whether the draft is going to be adopted as proposed. But it would
be ironic, and legally peculiar, if it is adopted even before the proposed new Constitution is
even drafted, let alone adop ted. 14
What is certain, however, is tha t the proposed draft law, to be called the “Social Control Act” is
intended for implementation of the ruling Party’s (National Congress Party) declared
programme for governing. The Party’s President (who is also the President of the Republic) has
already s tated that, following separation of the Southern Sudan, the national identity of the
country is an “Arab =slamic State” in which the laws of Sharia , indeed as interpreted by the
ruling authorities, would be applied. 15
It is clear from the foregoing that t he said principles of the law are partly based on Islamic
Sharia concepts as well as general principles of moral values which may be found in different
religions or societies. This commentary is not concerned with the origin or basis of the values
principl es concerned. It is simply to review them in the light of their conformity or otherwise to
the principles of human rights under the INC and in international human rights treaties which
Sudan has ratified.
1. One of the important observations is that the A ct provides for the punishment of flogging
in most of its sections (frequently up to 100 lashes). This punishment has also been one of
the prominent features of the 1998 Act. In the 1991 Criminal Act reference is generally
made to flogging leaving it to th e discretion of the trial court to specify the number of
lashes. 16 Only a few sections specify the number of lashes. 100 lashes is obviously excessive
both in relation to whatever the number of lashes is specified in the Code or as a cruel and
harsh inhuman punishment. Section 35 of the Criminal Act specifies that, except for huddud
crimes, lashing should not be inflicted on a person who reached 60 years.
It is a universally established principle that whipping or flogging is a degrading and
humiliating pun ishment which has ceased to be applied in all but a handful of countries. 17
14 The opposition political parties, civil society organisations and others are engaged in (though not necessarily in
coordination) preparing working papers on, and draft models for, a new constitution. It is widely believed that the
NCP is also (separately and confidentially) preparing its own version. The President has declared that a “National
Committee ” will be established to draft the constitution but the current process is characterised by a lack of
transparency, including lack of clarity about the process itself. 15 See for example Sharia law to be tightened if Sudan splits – president, BBC News, 19 De cember 2010,
https://www.bbc.co.uk/news/world -africa -12033185 . 16 Section 68 of the Criminal Act sets the maximum number of lashes at 20 for the offence of disturbing the peace.
Section 78 makes a Muslim liable for up to 40 lashes for drinking, possessing or dealing in alcohol for first offenders
and up to 80 lashes for recidivists. Section 125 punishes insulting religion with up to 40 lashes. Section 149
punishes an unmarried person who commits adultery with 100 lashes. Section 149 provides the same punishment
for adultery. Section 152 prescribes a punishment of up to 40 lashes for indecent acts against public morality.
Section 153 provides the same punishment for acts against public morality. Se ction 154 sets up to 100 lashes for
prostitution and Section 155 provides the same punishment for running a brothel. Section 155 sets up to 28 lashes
for insulting a person. Section 174 provides fo r a punishment of up to 100 lashes for theft. 17 Most countr ies have abolished flogging as a punishment, including recently by way of legislative reforms in
Kenya and as a result of judicial pronouncements in Namibia, Uganda and Zambia. Only few countries, such as
Even Sharia prescribes this punishment strictly for three offences only. 18 The frequent use of
this punishment in the Act is a repressive measure which has no religious sanction or
support among the Sudanese people. The INC in its Article 27 (3) provides that Sudan is
committed to the principles of international human right covenants which Sudan has
ratified. Flogging is considered an inhuman and degrading treatment under the 1984
Con vention Against Torture. Although Sudan has not ratified the Convention, it has signed it
in 1986. Under the Vienna Convention on Interpretation of International Treaties, 1969, a
state which has signed (but not ratified) an international treaty is bound t o refrain from any
acts which are tantamount to violation of the treaty in question, in this case the infliction of
any punishment which is tantamount to a violation under the 1984 Act. Moreover, both the
Human Rights Committee responsible for monitoring s tate compliance with the ICCPR and
the African Commission on :uman and Peoples’ Rights responsible for monitoring state
compliance with the African Charter on :uman and Peoples’ Rights have found that
corporal punishment is incompatible with the prohibitio n of torture and inhuman treatment
or punishment. 19
The so -called “=slamic” mentality of the present lawmakers may best be described by a
provision in the Explanatory Memorandum to the previous Penal Code of 1983, which
purported to introduce Sharia Law. N ote No.7 on inflicting punishment provides that “the
magistrate should continue the punishment of flogging in the offences of huddud even after
the death of the culprit to complete his purification before God”!
2. Section 9 of the draft Social Control Ac t punishes abetment or organization of vagrancy, a
“vagrant” being defined as a person with no human habitual residence or a known vocation
or clear means of livelihood. By contrast, section 450 of the 1983 Penal Code defines
vagrancy as a consequence of u nemployment , defining an unemployed person as someone
with no known habitual residence or known vocation or clear means of livelihood. An
unemployed person is someone who is fully or partly capable of supporting himself or his or
Botswana, Iran, Northern Nigeria, Saudi Arabia and Singapore, have retained flogging as corporal punishment, see
study prepared by the SOAS Human Rights Clinic 2010/2011 for the Project for Criminal Law Reform Sudan (on file
with PCLRS). 18 Sharia explicitly provides for flogging for the crimes of adultery (zina ), unfounded accusation of adultery ( qazf )
and drinking of alcohol (shurb al khamr) only. 19 See Human Rights Committee, General Comment 20, Article 7 [concerning prohibition of torture and cruel
treatment or punishment] (1992), UN Doc. HRI/GEN/1/Rev.1 at 30 (1994), para.5; Human Rights Committee,
General Comment 28: Equality of rights between men and women (article 3), UN Doc. CCPR/C/21/Rev.1/Add.10
(2000), para.13 (on dress codes and corporal punishment). See further Tyrer v UK (1978) 2 EHRR 1; Osbour ne v
Jamaica, UN Doc. CCPR/C/68/D/759/1997, 13 April 2000; Higginson v Jamaica, UN Doc. CCPR/C/74/D/792/1998, 25
June 2002; Caesar v Trinidad and Tobago, Inter -American Court of Human Rights, Judgment 11 March 2005, Series
C. No.123. See on Sudan in partic ular Human Rights Committee, Concluding observations of the UN Human Rights
Committee: Sudan, UN Doc. CCPR/C/SDN/CO/3/CRP.1, 26 Huly 2007, para.10: “*The Committee+ considers that
corporal punishment including flogging and amputation is inhuman and degradi ng”; and Doebbler v Sudan, African
Commission on :uman and Peoples’ Rights, Communication 236/2000 (2003), para.42: “There is no right for
individuals, and particularly the government of a country to apply physical violence to individuals for offences.
Suc h a right would be tantamount to sanctioning State sponsored torture under the [African] Charter and contrary
to the very nature of this human rights treaty.”
her family and neglects or refuses to do so, or a person who wanders in the streets and
public places begging or collecting alms or induces or encourages children to do so unless
he is unable to earn his living because of age or incapacity, and a person who has no settled
residence or obvious means of livelihood and cannot give adequate information about
himself. Strangely enough this definition is followed by a repugnant and blatantly
discriminatory if not racist provision stating that if the person in question is an “Arab ” he
cann ot be convicted if he has no place of habitual residence if he shows obvious means of
livelihood or gives adequate information about himself. The section then proceeds to define
vagrancy as relating to any person who was convicted as an employed person who
thereafter commits one of the same offences again.
The problem with the punishment of vagrancy, beggary, and soliciting donations in public
and unemployment in a country like Sudan is that it does not take into account the realities
of the socio -economic conditions in the country. Sudan is one of the poorest nations in the
world, with one of the lowest per capita income and highest rate of unemployment as well
as very poor health, education, residential and environment services. With no homes to
accommoda te and care or any social benefits for the unemployed, it is not abnormal for a
large number of victims of such circumstances to resort to begging, loitering or sleeping in
the streets. Subjecting them to conviction and punishment, instead of care and atte ntion,
would be adding insult to injury. Needless to say, those who do commit such offences –
which, incidentally, do not cause any apparent harm to the personal integrity or harm of
others – under such dire situations are unlikely to take notice of the la w.
3. Prohibition of exhibition of merchandise or peddling in the streets and in the centre of
towns to comply with the demands of public order ignores the needs of the poor to find
means of earning a living, including the sale of quick meals, tea, coffee or ground nuts in
public. Again, treatment of the cause should come in a welfare State where the livelihood
needs of the population are necessary elements in a democratic society in which a popularly
elected government would depend for its survival on sat isfying the basic economic, social
and cultural life of its people i.e. education, job opportunities, health facilities, housing, a
good transport system, a clean environment and a system of accountability for good or bad
governance. 20 In the absence of suc h a system, citizens cannot be expected to meet
unrealistic goals and, worse still, to be punished for opting to create their own means of
survival and livelihood.
4. Other main provisions of the Act endeavour to impose a moral code of conduct or ethical
values, assumed to be based on the Sharia and assumed moral values of Sudanese society.
Neither premise is convincing. First, “Sudanese” should include (even after the separation of
South Sudan) a large number of non -Muslims, including people of Southern S udan ese
descent who opt to stay in Khartoum and elsewhere, some small Arab Community in the
20 Sudan is also obliged to provide for economic, social and cultural rights under the ICESCR and the African Charter
on :uman and Peoples’ Rights, particularly articles 15 -24.
North and a larger number of citizens of African descent in the West and Southern Blue
Nile. Needless to say, those people have to have their faith, values and trad itions respected.
As for Muslims, Sudanese are generally known for respect of their religious faith and values,
and there is neither an established tradition nor need to have their moral codes enforced
through penal legislation. Their resort to b egging , pe ddling goods in public, loitering,
sleeping in the streets is solely caused by lack of education, housing, and scarcity of jobs and
means of livelihood. Waste and lack of environmental awareness is due to the absence or
shortage of such culture, programmes and resources being provided by the Government,
which is due to wrong spending priorities. Prevention of women companionship, mixing in
sports, mixed dancing, and so -called decent dress is a projection of a fundamentalist Islamic
view of the man as a ravi ng maniac and the women as an easy prey or sex target, which,
again, does not reflect gender roles and relationships as traditionally understood in Sudan.
3. Concluding Observations
The above commentary shows that the cumulative effect of the provisions of the draft Social
Control law, intended for application in the State of Khartoum, violates several basic rights and
freedoms of the INC and the International Bill of Rights. It also contains several provisions of
offences already defined and punishable under the Criminal Act in force in the country, though
with some variations. Some of the offences in the draft Act are also made punishable with
imprisonment, fine s or flogging without specifying the maximum length of the period of
imprisonment, the amount of the fine to be imposed or the number of lashes to be inflicted.
This seems to be left exclusively to the Magistrate trying the case, which raises the spectre of
arbitrariness. No reference is made to the procedure to be applied at the trial, especially the
right of appeal and the powers of the appellate authority in relation thereto. In almost all cases
punishment, especially flogging, is imposed immediately upon pronouncement of sentence,
rendering the possibility of appeal, if any, of no real value, t he damage already having being
Some aspects of the Act purport to address issues which, at face value, seem reasonable and
desirable. Examples of this are th e provisions governing vagrancy and beggary, cleanliness of
the environment and public place s, nuisance to others, unlawful peddling, sale of food, tea and
coffee in public etc. However, such otherwise desirable objectives must not be enforced by
threat of disproportionate punishments. The p rohibition of the sale of such items during the
month of Ramadan should take into consideration the number of Sudanese non -Muslims, and
foreign nationals who would have to satisfy their thirst or hunger even during Ramadan. Also,
prohibition of throwing away garbage and litter requires civil education, public m edia
campaigns and supply of items such as bins, barrels, collection vehicles, public baths in the
streets and squares. Civil education through the family, school curr icula, the media, civil society
etc. are prerequisites for raising awareness among the ge neral public, which should come
before inflicting punishments , particularly on marginalised and impoverished citizens looking
for sources for their and their children’s next meal.
Other provisions of the Act, supposed to be based on principles of Sharia and/or Sudanese
traditions and values , are no more than restrictions on individual and public freedoms imposed
to supplement the official policy of individual repression and suppression of gatherings and
public assemblies. It facilitates if not perpetuates a climate in which security and public forces
arbitrarily exercise their broad powers, in addition to enriching or subsidizing some of them
who would be only too happy to allow the alleged “violation” against a small amount of money
given to them as a brib e to permit the activity in question.
Examples of the prohibited activities, many of which clearly have a gender dimension, i.e. a
disproportionate impact on women, include: separation of women from men in any places
requiring persons to stand in queues, organizing a private party in or outside the house except
with approval of the Director, obligation to wear “decent dressing” described as a dress which
shows part of a woman’s body which “ Sharia requires to be covered” (whatever that mea ns) ,
mixed dancing i.e. between a man and woman! , sin ging lowly son gs, organizing a public party
except with approval of the Director of the Police, organizing graduation parties of higher
educational institutes outside the buildings of the institute, opening women’s hairdr essing
places without approval of the local Council or employing men in or allowing them to enter
In conclusion, the proposed State of Khartoum Social Control Act, which would in most
likelihood be applied in one form or another in other Stat es, is no more than yet another piece
of legislation, complementing existing national legislation affecting citizens public and private
rights and freedoms (the State Security Act, the Trades Union Act, the NGO Law, the Press and
Publications Act, the Anti -Terrorism Act, the Penal laws affecting freedom of assembly and of
expression etc.) that are unconstitutional and violate Sudan’s international human rights treaty
obligations .21 The proposed State of Khartoum Social Control Act for its part raises serious
concerns about its compatibility with a series of obligations binding Sudan under international
law and guaranteed in the Bill of Rights. This includes the principle of legality, which requires
that offences are clearly defined; the right to liberty and s ecurity (prohibition of arbitrary arrest
and detention) , which requires that arrest s must not only be lawful but also not be arbitrary
(unreasonable) and the right to a fair trial, which includes the right to a defence and the right to
an appeal. 22 Sudan’s international obligations also comprise freedom from inhuman, degrading
or cruel punishment, which prohibits flogging . The ICCPR in particular require s that the state
does not arbitrarily interfere with someone’s privacy or family. In addition, freedom of
expression and of assembly may only be restricted if necessary and proportionate for “respect
of the rights or reputation of others ; [or ] for the protection of national security or of public
order, or of public health or morals ”.23 The draft law also raises concerns over its compatibility
with the principle of non -discrimination , according to which “rights must be recognised …
21 See for a comprehensive analysis, Medani, Legacy of Institutionalized Repression, supra. 22 See for an overview of relevant international standards, ibid. Part II. Introductio n to I, II and IV respectively. 23 See articles 19 and 21 ICCPR. See on the interpretation of relevant terms and standards in this context
particularly Human Rights Committee, General Comment 34: Article 19 (Freedom of Opinion and Expression), UN
Doc. CCPR/ C/GC/34, 21 July 2011, paras.21 -49.
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social orig in, property, birth or other status” .24
Finally, the timing of drafting the Social Control Act, even before the new Constitution is
adopted, calls into question the government’s commitment and future policies for the
protection of human rights.
4. R ecomm endations
Following from the above it is recommended that:
(a) the proposed draft Social Control Act should not be adopted; a revised text may only be
adopted after the National Constitution comes into force to avoid any conflict with basic
human rights and freedoms;
(b) the punishment of flogging should not be imposed for any offences, being contrary to
the prohibition of torture and other cruel, inhuman and degrading treatment or
(c) the National and State Governments shall ensure that national progra mmes in
educational curricula and the media should include provisions for raising public
awareness on public order, public security and tranquillity , health precautions, the
environment, civics and the duties of individuals towards fellow citizens ;
(d) begga ry, loitering in public, peddling, living in slums and building sites, wandering on the
streets of mentally sick persons or street children are not crimes to be treated by penal
measures but rather symptoms of poverty and underdevelopment, requiring urgent
political and social curative measures through the creation of jobs, housing the old and
poor homeless, provision of public baths, care for street children, medical institutions
for the mentally sick, with efforts by the Government, civil society and the international
(e) some social habits and gatherings that are customary in the community, especially
among non -Muslims or those of African origin, be tolerated rather than outlawed and
punished, which reinforces vulnerabilities and stigmatisation ;
(f) Public Order laws should be gender sensitive and conscious of customs which enable
men and women to be together in sports social events or the workplace, so long as
offensive behavio ur is avoided .
24 Article 2(1) ICCPR.