Lubna Hussein’s Trial Highlights Repressive Public Order Law in Sudan
Refugee Rights News
November 2009
In September 2009, Sudanese journalist and former UN staff member Lubna Ahmed Hussein went on trial before a North Khartoum Court for wearing trousers in violation of the country’s public order law following her arrest on 3 July 2009. On 7 September 2009, the court ordered Hussein to pay a $200 fine, but she was spared the usual sentence of 40 lashes. The case, which gained widespread international attention, served to highlight a law which is being increasingly used against mostly poor or ethnically marginalised women. It is also being deployed as part of a broader crackdown on civil society and voices of criticism of the government in response to the arrest warrant for President Omar al-Bashir by the International Criminal Court in March and the upcoming elections scheduled for early 2010. As we wrote in the April issue of Refugee Rights News a number of human rights activists reported that they have been subject to increased scrutiny and government harassment (see: “The Reaction to the Arrest Warrant against Sudanese President Al-Bashir.”)
Hussein’s Arrest and Trial
Hussein was wearing green slacks, a blouse and a headscarf when she was arrested on 3 July 2009 by a group of roughly 20 members of the public order police. She was charged under Article 152 of the Criminal Act (1991), which provides that a person who “commits an indecent act or an act that breaches public morality or wears clothes that are indecent or would breach public morality which causes annoyance to public feelings is liable to forty lashes or fine or both punishments”. She was one among a group of 13 Sudanese women and girls arrested in Kawkab Alsharq, a popular café in Khartoum. Ten of the group pled guilty and were flogged and fined 250 Sudanese pounds (roughly $100). After demanding legal representation Hussein was taken to her hearing before the nizam al-‘aam, the public order court, a court with police and judges, but no witnesses and restrictions on legal representation. According to its January 2007 report to the Human Rights Committee, the UN body charged with monitoring state adherence to the International Covenant on Civil and Political Rights (ICCPR), Sudan claimed to have shut down these public order courts, where their lack of due process are in violation of requirements for fair trials under the ICCPR.
Hussein is a well-known public figure as she previously worked at the Khartoum-based newspaper Al-Sahafa and penned her own column, called “Men Talk”. Unlike the other women and girls arrested she was fortunate to be granted a lawyer and hence a trial. She subsequently embarked on a comprehensive media strategy. She told the Telegraph that she would appeal up to the constitutional court if possible and that she was “ready to be whipped not 40 but 40,000 times” if that would advance women's rights in the country. She sent invitations to about 40 journalists, civil society members and government ministers and e-mailed invitations to over 400 to attend her hearing. Three of the printed invitations were sent to the presidential palace. She decided to raise public attention on her case by issuing the invitations because she believed that were she to write an article, it would not be published as a result of stringent censorship laws in Sudan.
During Hussein’s hearing on 4 August 2009, the judge adjourned Hussein’s trial for the second time until 7 September 2009 to decide whether Hussein’s job as a press officer for the UN Mission in Sudan (UNMIS) granted her immunity. (Lubna had declared that she did not want immunity and resigned from her job) Judge Madathir Rashid of the North Khartoum Court awaited an opinion from the Sudanese Foreign Ministry on whether Hussein’s resignation from UNMIS revoked her immunity, and if so, when the waiver of immunity became effective. The African Centre for Justice and Peace Studies bimonthly human rights monitoring report on Sudan commented that “[t]he delay in continuing the trial [wa]s a calculated attempt to wait for the public uproar over the issue to die down.”
On 4 August, the courtroom was packed and many of Hussein’s female supporters attended wearing trousers. Outside the courthouse, about 100 women protested, some carrying signs saying that Sudan was going back to the Dark Ages. Riot police fired tear gas and bullets into the air to disperse the crowd and beat some of the protestors. Journalists attempting to cover the trial were harassed, detained and had their equipment and notes confiscated. One of Hussein’s attorneys, a woman named Manal Awad Khogali, was beaten by police outside the courthouse.
During Lubna Hussein’s appearance in court on 7 September 2009, diplomats and human rights workers were in attendance. Roughly 150 protesters were heckled by a smaller number of counter-protesters following the ruling. At least 40 protesters, many of them women wearing trousers in support, were arrested and released on bail. According to BBC, one woman was hit eight or nine times by police with truncheons. Following the sentencing, Hussein’s lawyer said she would appeal to both the Court of Appeal and the Constitutional Court and she was determined not to pay the fine in order not to give the verdict any legitimacy, despite her lawyers’ advice to the contrary.
According to the African Centre for Justice and Peace Studies’ newsletter, Sudan Human Rights Monitor, the Sudanese government issued orders to the Sudanese media not to publish any information on Hussein’s trial. The Sudan Tribune reported that the Sudan official news agency (SUNA) published news that there was a forum held on 5 August 2009 to discuss the statute and to discuss provocative dress by women, though no explicit mention of Hussein was made. According to the Guardian, another female Sudanese journalist who wrote about the case is currently facing trial for criticising the government in an article.
Legal Background on Issues of the Trial
Sharia, the basis of much of Sudan’s law, rose to prominence in Gaaffar Numeiri’s presidency when he amended a wide range of laws to enshrine sharia principles in September 1983. These laws subsequently became known as the “September laws”. Prior to 1983, most civil and criminal matters were governed by English common law, with the exception of family law, which was governed by sharia. In 1991, the Criminal Act and Criminal Procedures Acts were replaced with acts that maintained crimes based on sharia. In 2005, the National Interim Constitution established a new governance framework that divided sources of law depending on the region and level: national, Southern Sudan, state and local. Article 5 of that constitution states that the principal source of law for Northern Sudan is “sharia and the consensus of the people”. Sharia has been a contentious issue in the North-South war. Under the Comprehensive Peace Agreement signed in 2005, sharia is meant to apply only to Muslims, and measures are to be taken to ensure the rights of non-Muslims in the nation’s capital. Several of the women who have already been flogged are Christians from Southern Sudan, a move which Southern Sudan’s semi-autonomous government severely criticised. Yasir Arman, a senior member of the Sudan People’s Liberation Movement, called for an investigation into the case to assess why the Southern Sudanese members of the group were not granted greater protections.
The African Commission on Human and Peoples’ Rights (African Commission), charged by the African Charter on Human and Peoples’ Rights with inter alia promoting, protecting and interpreting the contents of the African Charter, has already ruled that state-sanctioned flogging is a violation of Article 5 of the African Charter, which outlaws “[a]ll forms of exploitation and degradation ... particularly ... torture, cruel, inhuman or degrading punishment and treatment”. In 2003, the communication Curtis Francis Doebbler v. Sudan dealt with the case of eight students who were arrested and subsequently flogged for disturbances of public order, including such acts as “girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys and sitting and talking with boys”. The Commission found that, “[t]here is no right for . . . the government of a country to apply physical violence to individuals for offences. Such 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” (emphasis added). Among the recommendations of the African Commission, were to “[a]bolish the penalty of lashes”, and “[i]mmediately amend the Criminal Law of 1991, in conformity with its obligations under the African Charter and other relevant international human rights instruments”.
Conclusion of the Trial
According to Najlaa Al Maahi, one of Hussein’s legal team, “the proceedings were hastily conducted and the defence was not allowed to make its case. The general sentiment was that the guilty verdict and the sentence, a fine of $200, had been decided in advance, and the trial was merely a formality. The goal was to tar Hussein as indecent but not resort to lashing, but not enact a brutal punishment while the world watched.”
Upon refusal to pay the fine, Hussein was taken to the women's prison in Omdurman, but freed the following day after the Sudanese Journalists Union paid the fine against her wishes. In a statement to Asharq Al-Awsat, a major pan-Arabic newspaper, Hussein said "I thank Tetawi, Head of the Union, for his visit but not for paying the fine."
In a column published in the UK's Guardian newspaper a few days before the sentencing, Lubna Hussein, a widow, wrote: "[w]hen I think of my trial, I pray that my daughters will never live in fear of these police... We will only be secure once the police protect us and these laws are repealed."