- A Legal Perspective on the Procedure for Recovering Funds Mistakenly Transferred through the Public Prosecution
- Dr. Ibrahim Gism Al-Sayed
- Introduction
- In practice, it is not uncommon to find that established procedures differ from the requirements of the law or from legally correct procedures. Such discrepancies often arise when an incorrect procedure is initially adopted by a particular authority and is subsequently perpetuated over time until it becomes an accepted administrative practice, as though it were the legally prescribed procedure.
- One notable example is the procedure followed by certain Public Prosecution offices for recovering funds that have been transferred by mistake. This raises important legal questions concerning the validity and legality of such a procedure. This article seeks to examine these questions and provide a legal assessment of the current practice.
- First: Financial Transfers through Modern Technology
- With the widespread use of mobile phones and other digital technologies, financial transactions have undergone a significant transformation. Among the most prominent developments is the ability to transfer money electronically using mobile devices.
- One common method is known as mobile credit transfer, whereby a user transfers a monetary value from one mobile account to another. This process requires only a mobile phone with sufficient prepaid credit (hereinafter referred to as the sender) and another mobile phone designated to receive the transferred amount (hereinafter referred to as the recipient). The sender enters the recipient's mobile number, follows the transfer procedure prescribed by the relevant telecommunications provider—usually by entering a specific transfer code—and completes the transaction. The recipient may then utilize or sell the transferred credit, often for an agreed commission.
- A more advanced form of electronic financial transfer emerged with the digitization of banking services. Commercial banks have developed electronic banking applications enabling customers to perform various banking transactions remotely. To access these services, the customer downloads the bank's application onto a mobile phone or personal computer and receives secure authentication credentials, including a confidential password. Once authenticated, the customer may conduct a wide range of banking transactions, most notably transferring funds electronically from his or her bank account to another account.
- Second: Errors Associated with Electronic Financial Transfers
- Although these technological developments have greatly facilitated financial transactions, they are not free from risks.
- Apart from cybercrimes involving unauthorized access to bank accounts or mobile devices for the purpose of stealing funds, another significant risk arises from the sender's own mistake. Such errors typically occur when the sender inadvertently enters an incorrect mobile number or bank account number before confirming the transaction.
- Once the transfer command is executed, the entire amount is credited to an unintended recipient who has no legal entitlement to the funds. The money is deposited into that person's bank account or mobile wallet, after which the sender faces the difficult task of locating the unintended recipient and attempting to recover the mistakenly transferred amount.
- The sender's predicament is generally more complicated when the erroneous transfer is made to a bank account rather than to a mobile phone number. In the former case, the sender must first identify the account holder. This normally requires approaching the bank and requesting the customer's identity. However, the bank will ordinarily refuse to disclose such information pursuant to its legal obligation to maintain banking confidentiality. For the same reason, it will likewise refuse to disclose details relating to transactions conducted on the account.
- By contrast, where the mistaken transfer is made to a mobile phone number, recovery may appear relatively easier. The sender may directly contact the holder of the number and explain the mistake. Three possible scenarios may then arise:
- The recipient voluntarily returns the transferred amount.
- The sender is unable to contact the recipient for any reason.
- The recipient deliberately refuses to return the funds.
- In the latter two situations, the sender may resort to the Public Prosecution. The same course of action is often followed where the identity of the unintended bank account holder cannot be determined.
- The question that then arises is: What legal procedure follows in such circumstances?
- Third: Procedures Followed by the Public Prosecution in Requests for the Recovery of Funds Mistakenly Transferred
- In practice, when a person who has mistakenly transferred money approaches the relevant telecommunications company or bank to report the error, the company or bank usually advises the individual to refer the matter to the Public Prosecution.
- Once an application is submitted, the prevailing practice is for the Public Prosecutor to instruct the police to undertake preliminary inquiries pursuant to Article 47 of the Criminal Procedure Act, 1991. This provision authorizes the Public Prosecutor to conduct preliminary investigative measures before formally initiating criminal proceedings. Such measures are generally employed where the complaint is ambiguous or where the facts alleged do not, on their face, disclose the commission of a criminal offence.
- After recording the complainant's statement, the Public Prosecutor typically issues an official communication to the telecommunications company or the relevant bank directing it to reverse the transaction and restore the transferred amount to the person who mistakenly initiated the transfer.
- The question therefore arises: Is such a procedure legally valid?
- In our opinion, the answer is no. Indeed, such a procedure exceeds the statutory powers of the Public Prosecution. This conclusion may be supported by the following considerations.
- 1. Lack of Statutory Authority
- A decision directing the return of money—regardless of the circumstances under which the dispute arose—is, in substance, a judicial determination concerning civil rights and obligations. Such determinations fall exclusively within the jurisdiction of the competent courts after legal proceedings have been instituted and adjudicated in accordance with the applicable procedural laws.
- Moreover, directing a bank or telecommunications company to restore funds is not merely equivalent to rendering a judgment; it also amounts to enforcing that judgment. Since the Public Prosecution is neither vested with judicial authority to adjudicate private financial disputes under the Criminal Procedure Act, 1991, nor empowered to enforce judicial decisions in such matters, issuing such an order clearly exceeds its statutory mandate and is therefore unlawful.
- 2. Potential for Fraud and Abuse
- This practice also creates opportunities for fraudulent claims.
- For example, where one person legitimately transfers money to another in discharge of an existing debt, the payer may subsequently approach the Public Prosecution alleging that the transfer was made by mistake. If the Public Prosecution orders the recovery of the funds without judicial scrutiny, it may effectively restore money to a person who has no legal entitlement to recover it.
- A further scenario may arise where a fraudster becomes aware that a financial transfer has taken place between two individuals and somehow obtains the relevant telephone numbers or account details. The fraudster could falsely impersonate the sender and submit an application seeking recovery of the transferred amount. Should the Public Prosecution grant such a request without adequate verification, it would inadvertently facilitate fraud.
- These examples demonstrate that permitting the Public Prosecution to order the recovery of disputed funds without judicial proceedings exposes both financial institutions and the justice system to significant legal risks.
- What Is the Proper Legal Characterization of Such Cases?
- In our opinion, where the unintended recipient knowingly refuses to return the mistakenly transferred funds, the conduct may constitute the offence of Criminal Misappropriation under Article 180 of the Sudanese Criminal Code of 1991, which provides that:
- Any person who takes, borrows, finds, or acquires possession of movable property belonging to another by mistake and thereafter dishonestly denies ownership thereof or wrongfully disposes of such property shall be liable to the prescribed punishment.
- An examination of the constituent elements of this offence reveals two essential requirements relevant to mistaken bank transfers.
- The first is possession acquired by mistake. This element is clearly satisfied where funds are credited to a person's account as a result of the sender's error.
- The second is the existence of criminal intent, manifested through the recipient's dishonest denial of the owner's rights or refusal to return the funds.
- Accordingly, once the unintended recipient is informed of the mistake and nevertheless deliberately refuses to restore the money, the offence is complete. At that stage, the Public Prosecution should initiate criminal proceedings under Article 180, arrest the accused where legally justified, and, where appropriate, release the accused on bail subject to a financial guarantee equivalent to the disputed amount.
- Thereafter, the case should either be referred to the competent criminal court for adjudication or terminated by reconciliation if the parties reach an amicable settlement, since the offence is one in which the private right may be waived in accordance with the applicable law.
- Should the court ultimately convict the accused, it may also order restitution of the funds to the complainant as part of its judgment.
- Civil Remedy Based on Unjust Enrichment
- Conversely, where the recipient cannot be identified or located for any reason, the sender retains the right to institute civil proceedings based on the doctrine of unjust enrichment.
- Upon hearing the claimant's evidence, the competent civil court may issue a default judgment ordering repayment of the mistakenly transferred funds.
- Furthermore, even where the recipient's identity and whereabouts are known, nothing prevents the sender from pursuing a civil action based on unjust enrichment instead of initiating criminal proceedings, particularly where the facts do not disclose the existence of criminal intent.
- Findings
- The foregoing analysis leads to the following conclusions:
- The continuous expansion of modern financial technologies has resulted in a corresponding increase in cases of funds being mistakenly transferred to unintended recipients.
- The current practice whereby the Public Prosecution orders the recovery of funds mistakenly transferred to their sender lacks a proper legal basis and is inconsistent with the powers conferred upon the Public Prosecution under the law.
- The issuance of such recovery orders by the Public Prosecution may inadvertently facilitate fraudulent schemes by enabling dishonest individuals to reclaim funds to which they are not legally entitled.
- Where a recipient knowingly retains funds that were mistakenly transferred and refuses to return them after becoming aware of the mistake, such conduct may constitute the offence of Criminal Misappropriation under Article 180 of the Sudanese Criminal Code of 1991. In other circumstances, the matter may instead give rise to a civil claim founded on the doctrine of unjust enrichment.
- Recommendations
- In light of the foregoing, the following recommendations are proposed:
- The Public Prosecution should refrain from issuing administrative or prosecutorial orders directing the return of funds solely on the basis of an allegation that the transfer occurred by mistake, as such orders fall outside its statutory jurisdiction.
- Whenever an application for the recovery of mistakenly transferred funds is submitted, the Public Prosecution should carefully examine the facts to determine whether they disclose the constituent elements of the offence of Criminal Misappropriation under Article 180 of the Sudanese Criminal Code of 1991 or whether the matter constitutes a purely civil dispute based on unjust enrichment.
- Where the evidence establishes that the recipient, after acquiring possession of the funds by mistake, intentionally refuses to return them, the Public Prosecution should institute criminal proceedings under Article 180 of the Criminal Code. Conversely, where criminal intent is absent, the applicant should be advised to pursue the appropriate civil remedy based on the doctrine of unjust enrichment before the competent civil court.
- Conclusion
- The increasing reliance on electronic financial transactions has undoubtedly enhanced the efficiency and convenience of modern commerce. However, it has also generated novel legal challenges that require responses firmly grounded in the rule of law.
- Although the desire to provide an expeditious remedy for individuals who mistakenly transfer funds is understandable, administrative convenience cannot justify the exercise of powers that have not been conferred by law. The recovery of disputed funds affects proprietary rights and therefore falls, as a matter of principle, within the jurisdiction of the judiciary rather than the prosecutorial authorities.
- A clear distinction must consequently be maintained between cases involving criminal conduct—where the recipient knowingly and dishonestly retains funds received by mistake—and those involving no criminal intent, which should be resolved through the ordinary civil law principles governing unjust enrichment. Such an approach preserves the constitutional separation of powers, safeguards procedural fairness, and protects individuals from both arbitrary interference and fraudulent claims.
- And Allah is the Granter of Success.
- Dr. Ibrahim Gism Elseed
- July 2020
مدونة الدكتور ابراهيم قسم السيد للدراسات والبحوث القانونية
( هذه المدونة تهتم بالدراسات والبحوث القانونية بصفة عامة وتركز بصفة أخص علي قوانين المعلوماتية )
الخميس، 9 يوليو 2026
الأحد، 26 أبريل 2026
Chapter Two
The Death Penalty: A Historical, Jurisprudential, and Contemporary Legal Overview
The death penalty is one of the oldest forms of punishment known to humankind and remains among the most controversial sanctions throughout legal history. It lies at the intersection of the demands of justice, the principles of human rights, the precepts of Islamic law (Sharia), and the objectives of general deterrence.
First: The Origins of the Death Penalty in Ancient Societies
The death penalty emerged in primitive societies as a natural response to self-defense or retaliation against offenders. At that stage, punishment was not governed by any legal or judicial system; rather, it was carried out by individuals or tribes and was often characterized by extreme brutality, including burning, crucifixion, or burial alive, even for relatively minor offenses.
Furthermore, no consideration was given to the mental element (mens rea) of the crime. Liability was imposed upon whoever committed the act, whether a human being, an animal, or even an inanimate object, reflecting the rudimentary nature of criminal thought during that period.
Second: The Development of the Death Penalty in Ancient Civilizations
With the rise of major civilizations, the death penalty became incorporated into written legal codes. It appeared in the Code of Hammurabi in Babylon, the ancient Egyptian legal system, and Hindu law, all of which prescribed capital punishment for offenses threatening state security, public order, or morality.
These legal systems contributed to regulating the implementation of the death penalty by placing it under the authority of the state, typically represented by the king or ruler. This marked a significant transition from personal vengeance to organized public punishment.
Third: The Death Penalty under Islamic Sharia
Islamic Sharia established a comprehensive framework governing crime and punishment, founded upon the principles of justice, deterrence, and mercy. It defined the essential elements of a crime by distinguishing between the actus reus (material element) and the mens rea (mental element), while also recognizing the principle of personal criminal responsibility, the presumption of innocence, and grounds excluding criminal liability, such as insanity, duress, and minority.
The death penalty is prescribed under Islamic law only for specific offenses, most notably:
- Intentional homicide (Qisas—retaliatory punishment);
- Adultery committed by a married person (Rajm—stoning), subject to the testimony of four competent witnesses or a voluntary confession;
- Highway robbery (Hirabah), depending on the nature and gravity of the offense;
- Apostasy (Riddah), in accordance with strict jurisprudential conditions;
- Espionage against the Islamic state for the benefit of an enemy.
A distinctive feature of Islamic law is its emphasis on repentance, forgiveness, and financial compensation (Diyah), together with the well-established principle that prescribed punishments (Hudud) must be averted whenever doubt exists, thereby ensuring the utmost caution in the application of capital punishment.
Fourth: The Position of Contemporary Islamic Criminal Jurisprudence
Contemporary Islamic criminal jurisprudence generally maintains that the death penalty is compatible with human rights when imposed lawfully and within strict legal safeguards, as its primary objective is the protection of society and the preservation of the five fundamental necessities (Maqasid al-Sharia).
At the same time, contemporary scholars advocate:
- Limiting the categories of offenses punishable by death;
- Imposing more stringent standards of proof;
- Strengthening guarantees of a fair trial;
- Exhausting all available avenues of rehabilitation before resorting to capital punishment.
Islamic jurists further emphasize that the death penalty may only be carried out where guilt has been established with absolute judicial certainty and where all substantive and procedural guarantees of justice have been fully satisfied, thereby preserving the sanctity and dignity of human life.
Fifth: The Death Penalty in Contemporary Positive Law
The death penalty has undergone significant transformation in modern legal thought. With the growing emphasis on liberty, justice, and human rights, many legal systems have reassessed their position on capital punishment, particularly in light of increasing concerns regarding wrongful convictions and the absence of conclusive evidence demonstrating its deterrent effect.
Consequently, capital punishment has been completely abolished in more than 110 countries and has become effectively dormant in approximately 30 additional states. Nevertheless, it continues to be retained in countries such as Sudan, Egypt, Yemen, China, Saudi Arabia, Iran, and the United States for certain specified offenses.
Among the most significant modern legal developments are:
- The absolute prohibition of executing juveniles and pregnant women;
- The abolition of the death penalty for political offenses;
- The availability of individual or general pardons;
- The expansion of appellate review and post-conviction remedies.
Sixth: International Trends and Statistics
According to Amnesty International's 2024 Report:
- Executions were carried out in only 20 countries out of approximately 195 sovereign states.
- The leading executing countries included China (with the highest estimated number of executions), Iran, Saudi Arabia, and Egypt.
- Capital punishment has been completely abolished throughout Europe.
- The global number of executions has declined by approximately 60% over the past decade.
These indicators demonstrate a clear international trend toward either abolishing capital punishment or restricting its application to the most exceptional circumstances, largely in response to pressure from the international community, human rights organizations, and evolving philosophical conceptions of criminal justice.
Conclusion
The death penalty remains one of the most enduringly debated issues in criminal law, situated at the intersection of deterrence, the objectives of Islamic Sharia, and the principles of international human rights. While Islamic jurisprudence recognizes its legitimacy under exceptionally strict substantive and procedural safeguards, contemporary legal systems increasingly seek either to restrict its scope or abolish it altogether.
Chapter Three
The Death Penalty in the Abrahamic Religions
This chapter examines the death penalty under the three Abrahamic religions: Judaism, Christianity, and Islam.
The Death Penalty in Judaism
The death penalty is expressly recognized in the Torah, a fact also affirmed in the Holy Qur'an. Allah, the Exalted, states:
"Indeed, We sent down the Torah, in which was guidance and light. The prophets who submitted [to Allah] judged by it for the Jews, as did the rabbis and scholars by that with which they were entrusted of the Scripture of Allah, and they were witnesses thereto. So do not fear the people but fear Me, and do not exchange My verses for a small price. And whoever does not judge by what Allah has revealed—then it is those who are the disbelievers. And We ordained for them therein: a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever remits it as charity, it shall be an expiation for him. And whoever does not judge by what Allah has revealed—then it is those who are the wrongdoers." (Qur'an 5:44–45)
The Book of Numbers in the Torah provides that if a person kills another with a stone or another deadly instrument, the offender shall be put to death. However, where the killing occurs unintentionally and without malice or premeditation, the congregation is to judge between the slayer and the avenger of blood in accordance with the prescribed rules and protect the offender from retaliation.
The Mosaic Law distinguished between intentional and unintentional homicide. Premeditated murder was punishable by death, and no sanctuary was available to a deliberate murderer. By contrast, unintentional homicide was regarded as accidental, thereby relieving the offender of criminal liability. The law nevertheless recognized the right of the avenger of blood to exact retribution unless the offender reached a designated city of refuge.
Mosaic Law prescribed capital punishment not only for murder but also for certain religious and sexual offences. An animal that caused the death of a human being was to be put to death, and its owner could also be held liable if aware of its dangerous nature. Capital punishment likewise applied to murder, attempted murder, striking or cursing one's parents, kidnapping, and bestiality. Religious offences, including sorcery, idolatry, and violation of the Sabbath, were also punishable by death. Furthermore, adultery, sodomy, and the concealment of a bride's lack of virginity constituted capital offences under the Mosaic legal system.
The Death Penalty in Christianity
Christian scripture states:
"If you would enter into life, keep the commandments... You shall not murder; you shall not commit adultery; you shall not steal; you shall not bear false witness; honour your father and your mother; and love your neighbour as yourself."
Christianity developed and refined Jewish law while placing greater emphasis on its spiritual dimension. Although Christian doctrine acknowledged the legitimacy of capital punishment based upon the teachings attributed to Jesus Christ, the early Church Fathers advocated restraint in the use of violence. Consequently, the death penalty was generally confined to the gravest offences, including sorcery and treason.
In subsequent centuries, the Church sought to encourage compensation and civil restitution as alternatives to execution, while retaining capital punishment for offences threatening religious doctrine, public security, and particularly heinous acts of homicide.
The Death Penalty in Islamic Law
Islam places paramount importance on the protection of human life and prohibits injustice and aggression against individuals. Human life is regarded as one of the greatest blessings bestowed by Allah and therefore deserves the highest degree of protection and preservation. Numerous Prophetic traditions emphasize the sanctity and dignity of human beings. Among them is the narration describing mankind as "the structure of Allah," while condemning in the strongest terms anyone who destroys that structure.
Islam sanctifies human life and unequivocally prohibits unlawful killing, considering it among the gravest of all crimes. The Holy Qur'an declares:
"Do not kill the soul which Allah has made sacred except with legal justification."
Likewise, Surah Al-Isra' establishes the principle of lawful retaliation (Qisas) while prohibiting any excess in its implementation.
Prior to Islam, many tribal societies practiced collective vengeance, whereby an entire tribe could be held responsible for the crime of one of its members. Islamic law abolished this practice and established the principle of individual criminal responsibility, under which only the actual offender bears liability for the offence committed.
Islamic law seeks to preserve the five essential objectives (Maqasid al-Shari'ah): religion, life, lineage, property, and intellect. Since life is a divine trust granted by Allah alone, only He possesses ultimate authority over it. Accordingly, Islamic law prescribes the death penalty in specific circumstances involving unlawful attacks upon human life in order to uphold justice.
Islamic jurisprudence distinguishes between two categories of homicide:
- Unlawful killing, which encompasses every act of intentional aggression resulting in the unlawful taking of life; and
- Lawful killing, which includes executions carried out pursuant to legal authority, such as the execution of a murderer under Qisas or, according to classical Islamic jurisprudence, an apostate.
Unlawful killing is categorically prohibited by both the Qur'an and the Sunnah. The Prophet Muhammad (peace be upon him) stated:
"The blood of a Muslim is not lawful except in one of three cases: apostasy after faith, adultery by a married person, or the unlawful killing of another person."
Islamic criminal law classifies offences into three principal categories: Hudud, Qisas, and Ta'zir offences. Hudud offences include adultery, theft, false accusation of adultery (Qadhf), consumption of intoxicants, apostasy, rebellion, and offences punishable by Qisas. Qisas applies exclusively to intentional homicide, and judges possess no authority to reduce or substitute the prescribed punishment. Allah states:
"Prescribed for you is legal retribution (Qisas) in cases of murder."
Qisas is intended to achieve justice while preserving the victim's family's right to forgive the offender either gratuitously or in exchange for financial compensation (Diyah). Where forgiveness is granted in return for Diyah, the court is required to order payment thereof. Qisas is not applicable in certain situations, including the killing of one's own child by a parent or cases involving juvenile offenders.
Since life is a gift from Allah, Islam declares that whoever kills an innocent person unjustly is regarded as though he has killed all mankind, whereas whoever saves a life is regarded as though he has saved all humanity. Although this principle was originally prescribed for the Children of Israel, many nevertheless persisted in corruption despite the clear signs brought to them by their messengers.
According to Islamic law, offences such as highway robbery (Hirabah) and intentional murder may carry the death penalty by way of Qisas. Such punishment simultaneously protects both the right of Allah and the private right of the victim. Nevertheless, execution may be avoided if the victim forgives the offender before death, if the victim's heirs waive their right to retaliation, or if a settlement is reached through the payment of Diyah. Islamic jurists unanimously maintain that Qisas cannot be implemented except pursuant to a lawful judgment issued by the competent public authority. Even where the heirs waive their private right, the State retains its authority to impose an appropriate discretionary punishment upon the offender where justified.
The traditional method of carrying out Qisas for murder is execution by the sword, based upon the Prophetic tradition stating:
"There is no lawful retaliation except by the sword."
The implementation of Hudud and Qisas punishments is entrusted to the Imam (lawful ruler) or a duly authorized representative.
With respect to adultery (Zina), Islamic law requires exceptionally stringent evidentiary standards. Conviction must be established either through the testimony of four reliable eyewitnesses who directly observed the act or through a voluntary confession by the offender. Allah states:
"The female fornicator and the male fornicator—flog each of them with one hundred lashes, and let not compassion for them prevent you from carrying out Allah's law."
The evidentiary burden imposed by Islamic law demonstrates the exceptional caution exercised before imposing criminal liability. Unmarried offenders are punished by flogging, whereas married offenders (Muhsan) are, according to the classical Sunni juristic position based upon the Sunnah, subject to death by stoning. A slave receives fifty lashes regardless of marital status and, following death, is shrouded and funeral prayers are performed. A pregnant woman may not undergo the prescribed punishment until after childbirth and the completion of nursing her child.
The classical procedure for execution by stoning requires the witnesses to commence the implementation, followed by the Imam and thereafter the public. In the case of a female offender, she is buried to approximately waist level before the punishment begins. Where conviction rests solely upon confession, the Imam initiates the execution, followed by the public. Thus, classical Islamic jurisprudence provides that a married offender convicted of adultery is subject to stoning until death. The severity of this punishment has traditionally been understood as serving the objective of general deterrence.
The imposition of the punishment of stoning upon a married male or female offender requires strict conditions, including legal capacity, freedom, sanity, adulthood, Islam, and the absence of coercion. Proof is established only through an unequivocal confession or the testimony of four eyewitnesses who personally observed the act of sexual intercourse.
These evidentiary requirements are exceptionally difficult to satisfy, thereby creating substantial safeguards against wrongful conviction. The law also allows numerous opportunities for the accused to retract a confession, with such retraction preventing the imposition of the prescribed Hadd punishment.
A well-known example is the case of Ma'iz ibn Malik, who repeatedly confessed before the Prophet Muhammad (peace be upon him) to committing adultery. The Prophet initially questioned his mental capacity, asking whether he suffered from insanity, and instructed that inquiries be made among his people regarding his condition. After confirming his sound mind, the Prophet repeatedly questioned him concerning the nature and circumstances of the act. Ma'iz confessed on four separate occasions before the Prophet, who repeatedly turned away from him. Subsequently, Ma'iz fled before the punishment was carried out. When people pursued him to enforce the sentence, the Prophet remarked: "Why did you not leave him alone?"
This incident demonstrates that retraction of a confession, whether expressly or by flight, is treated as a withdrawal of the confession and precludes the application of the Hadd punishment.
Accordingly, Islamic law confines the death penalty to narrowly defined offences, principally intentional murder (Qisas), Hirabah, apostasy according to classical jurisprudence, rebellion under specified legal conditions, and adultery by a married offender under the stringent evidentiary requirements recognized in classical Islamic jurisprudence. The Abrahamic religions, therefore, significantly restricted the application of capital punishment by imposing rigorous substantive and procedural safeguards. They further provided mechanisms through which offenders might avoid its implementation where legal conditions so permitted. Ultimately, these religious legal systems seek to protect society while simultaneously promoting justice, mercy, and, where possible, the rehabilitation and moral reform of offenders.
Chapter Four
Crimes Punishable by Death under Sudanese Law
Sudanese law specifies a number of offences that may warrant the death penalty. The rationale behind prescribing capital punishment for these offences is discussed below. In the following chapter, the evidentiary requirements necessary to establish these offences will be examined, given the gravity and irreversibility of the punishment.
1. The Crime of Undermining the Constitutional Order
Pursuant to Article 50 of the Sudanese Criminal Act, any person who intends to undermine the constitutional order or jeopardize the independence of the State shall be punished by death, life imprisonment, or imprisonment for a lesser term. The court may also order the confiscation of all or part of the offender's property.
This offence is regarded as particularly serious because it may lead to widespread disorder, threaten the lives of millions of people, and result in severe economic and social crises. It should be noted that the death penalty is not mandatory in such cases, as the court may instead impose life imprisonment or a lesser custodial sentence, while confiscation of property remains discretionary.
2. The Crime of Waging War Against the State
Article 51 of the Criminal Act identifies several forms of this offence, including:
- Recruiting and training individuals without lawful authorization.
- Enlisting persons within Sudan to participate in the invasion of a foreign State.
- Sabotaging or destroying supplies, military equipment, vessels, or aircraft.
- Destroying installations with the intention of impairing the State's military capability.
3. Intentional Murder
Article 130 of the Criminal Act provides that homicide constitutes intentional murder where the act is committed with criminal intent. The offender is punishable by death by way of Qisas (retaliatory punishment).
Under Islamic law, human life is sacred and may not be taken except in accordance with justice. Islam likewise prohibits suicide.
It should be emphasized that the death penalty is not absolute. In addition to proving the offence beyond the required legal standard, certain legal conditions must be satisfied before a sentence of death may be carried out. In some circumstances, the right of Qisas may be waived. These circumstances will be examined later when discussing the grounds for, and extinguishment of, Qisas.
4. Zina (Adultery)
Islam strictly prohibits adultery because of its harmful consequences, including the confusion of lineage, the spread of disease, and the erosion of trust between spouses. Consequently, the punishment prescribed under Islamic law for a married offender (Muhsan) is stoning.
Nevertheless, proving this offence is subject to exceptionally stringent evidentiary requirements, and the prescribed punishment may be averted where any legal doubt exists. These evidentiary rules will be examined in the discussion on proof of criminal offences.
5. Sodomy
All the Abrahamic religions prohibit the offence of sodomy. The Qur'anic account of the people of Prophet Lot (Lut), upon whom divine punishment was inflicted through the destruction of the city of Sodom, forms the historical basis of the English term "sodomy."
Although certain movements advocate the legalization of such conduct, it remains widely condemned on moral, religious, and social grounds. It is viewed as contrary to human nature and associated with serious health risks, including HIV/AIDS.
Under Sudanese law, the death penalty is imposed upon the commission of the offence for the third time.
6. Hirabah (Armed Robbery)
Article 168 criminalizes Hirabah, commonly understood as armed robbery or highway robbery. This offence spreads fear among the public and adversely affects trade, commerce, and the national economy.
However, the prescribed punishment may be mitigated in certain circumstances, as will be discussed later.
7. Criminal Breach of Trust by a Public Servant
Article 177 of the Criminal Act of 1991 defines the offence of criminal breach of trust, including misappropriation, conversion of property for personal benefit, dissipation of entrusted property, or its use contrary to the purpose for which it was entrusted.
Where the offender is a public servant, the law authorizes the imposition of the death penalty, while imprisonment may be imposed as an alternative sentence.
8. Crimes Against Humanity
The Sudanese Criminal Act has been amended to include crimes against humanity in response to the increasing prevalence of such offences. These include intentional killing, sexual coercion, kidnapping, unlawful imprisonment, deprivation of fundamental rights, prevention of reproduction, and genocide.
These offences are set out in Part XVIII of the Criminal Act and are recognized under international and regional conventions as among the gravest crimes requiring prosecution and punishment. They are universally regarded as offences against humanity.
9. Narcotic Drugs and Psychotropic Substances Act, 1994
The Narcotic Drugs and Psychotropic Substances Act criminalizes trafficking in narcotic drugs, their manufacture, purchase, cultivation, and related offences involving weapons and explosives.
The prescribed penalty may include life imprisonment and a fine, particularly where the offender is a repeat offender, a public official responsible for combating such crimes, commits the offence with a minor or a person suffering from mental illness, or where the offence is connected with transnational crimes such as arms trafficking, money laundering, or organized criminal activities.
There is no doubt that narcotic drugs pose one of the most serious threats to society due to their devastating economic and social consequences. Accordingly, the legislature has established specific conditions under which enhanced penalties apply to certain offenders rather than to all persons convicted of drug-related offences.
Chapter Five
Safeguards Governing the Application of the Death Penalty under Sudanese Law
The Sudanese legislature has established strict safeguards governing the imposition and execution of the death penalty.
First: Constitutional Safeguards
Article 36 of the Interim Constitution of the Republic of the Sudan, 2005, provides as follows:
- The death penalty, whether as Hudud or Qisas, shall not be carried out except as punishment for offences of the utmost gravity in accordance with the law.
- The death penalty shall not be imposed on persons under the age of eighteen or over the age of seventy, except in cases involving Hudud or Qisas offences.
- The death penalty shall not be executed against pregnant or nursing women until two years have elapsed following childbirth.
The 2019 Constitutional Document likewise recognizes respect for human rights and the administration of justice as fundamental principles of the transitional period. It further provides that the Bill of Rights forms an integral part of the Constitutional Document and serves as the principal source for all legislation.
Second: Guarantees under the 2019 Constitutional Document
The Constitutional Document of 2019 requires that all guarantees of a fair trial be observed and prohibits the execution of the death penalty until all available avenues of appeal and review have been exhausted.
It further prohibits execution where reasonable doubt exists regarding the correctness of the conviction or where the convicted person suffers from a serious mental illness.
Article 34 guarantees the right to a fair trial, including the presumption of innocence, the right to a prompt trial, and the right to legal representation.
Third: Statutory Safeguards
The Criminal Procedure Act of 1991 divides criminal proceedings into two distinct stages:
- the investigation stage, conducted by the Public Prosecution, an independent authority; and
- the trial stage, conducted by the competent court.
This separation ensures judicial impartiality by preventing the trial court from being influenced by the investigation process. The Act further guarantees numerous procedural rights, including the right to legal defence and the right to appeal prosecutorial decisions.
Death sentences may only be imposed by the General Criminal Court, whose judgments are subject to review by both the Court of Appeal and the Supreme Court, thereby ensuring that such cases are determined by experienced judges.
Article 153 provides that where a person charged with a capital offence is indigent, the State, represented by the Attorney General, must appoint legal counsel at the State's expense, either wholly or partially.
Article 181 requires every death sentence to be automatically referred to the Supreme Court for confirmation.
Article 191 requires that every confirmed death sentence be submitted to the President of the Republic, who has the constitutional authority to commute the sentence.
Article 193 prohibits execution where the condemned person has reached the age of seventy or where a female prisoner is pregnant. In such circumstances, the prison director must notify the court accordingly.
Article 195 requires that the victim's heirs be notified of the execution and grants them the right to obtain an official certificate confirming that the sentence has been carried out.
Sudanese law also guarantees all avenues of appeal before the Courts of Appeal, the Supreme Court, and the Review Chamber, which consists of five judges empowered to reconsider Supreme Court judgments where they conflict with Islamic law or involve an error of law. Applications for review must generally be submitted within sixty days from notification of the judgment.
The Sudanese Evidence Act establishes the evidentiary standards applicable in criminal proceedings, particularly in offences punishable by death. Following the common-law tradition, the Sudanese legislature requires proof beyond reasonable doubt, even where the accused has confessed to committing the offence.
Grounds for the Extinguishment of Qisas
The right of Qisas is extinguished in the following circumstances:
- where the victim is a descendant of the offender;
- where the victim or any of the lawful heirs grants forgiveness;
- where the offender becomes mentally incapacitated before execution.
Extinguishment of the Hadd Punishment for Hirabah
The prescribed punishment for Hirabah is waived where the offender voluntarily abandons the criminal conduct before being apprehended by the authorities.
Proof of the Offence of Zina
A married offender (Muhsan) may be sentenced to death for the offence of Zina only where one of the following forms of proof is established:
- a voluntary confession that is not subsequently retracted, even before execution;
- the testimony of four competent and trustworthy male witnesses whose evidence is fully consistent;
- pregnancy of an unmarried woman where no legal doubt exists;
- refusal of the wife to undertake the procedure of Li'an (mutual oath of condemnation).
Article 65 of the Evidence Act embodies the established Islamic legal principle that Hudud punishments shall be averted whenever doubt exists.
Conclusion
The study reached the following findings:
- The death penalty is firmly established under Islamic Sharia, subject to specific conditions and safeguards, and is not an absolute punishment.
- Sudanese law derives a substantial portion of its provisions from Islamic Sharia; consequently, it retains the death penalty for the most serious offences.
- The number of offences punishable by death under Sudanese law exceeds that of many other jurisdictions, reflecting the particular characteristics of Sudanese society and its Sharia-based legal framework.
- Extensive procedural safeguards precede the implementation of the death penalty, including judicial review, presidential approval where applicable, and constitutional protections.
- Most offences carrying the death penalty are either difficult to prove or are subject to stringent evidentiary and legal safeguards, such as the requirements governing Qisas (retaliatory punishment) and other conditions prescribed by Islamic law.
- The prevailing international trend is toward restricting or abolishing capital punishment, presenting Sudan with future legislative challenges in balancing domestic legal principles with international developments.
Recommendations
- Limit the number of offences punishable by death and confine the penalty to the most serious crimes.
- Strengthen fair trial guarantees by requiring the appointment of qualified legal counsel at every stage of criminal proceedings.
- Review legislation governing the death penalty to ensure greater compatibility with internationally recognized human rights standards without contravening the principles of Islamic Sharia.
- Develop specialized training programmes for judges and public prosecutors handling capital cases.
- Expand the scope of executive clemency and encourage the use of reconciliation and Diyah (blood money) mechanisms where permitted by law.
- Enhance public awareness of the objectives, limits, and underlying principles of capital punishment, particularly the Sharia objective of preserving human life.
References
- The Holy Qur'an.
- Husni, Mahmoud Naguib. Explanation of the Criminal Code: General Part – The General Theory of Crime. Dar Al-Nahda, Cairo.
- Al-Saqqa, Mahmoud. The Philosophy of the Death Penalty. Dar Al-Maghrib for Authorship, Translation and Publishing, Morocco, 1978.
- Husni, Mahmoud Naguib. Explanation of the Lebanese Criminal Code: General Part. (Previously cited).
- Abu Zahra, Muhammad. Crime and Punishment in Islamic Jurisprudence. Anglo-Egyptian Bookshop, Cairo, 1957.
- Al-Fadil, Muhammad. General Principles of Criminal Legislation. University of Damascus, 1973.
- Odeh, Abdul Qader. Islamic Criminal Legislation, Vol. II, First Edition, Cairo, 1960.
- The Sudanese Criminal Act, 1991.
- The Sudanese Criminal Procedure Act, 1991.
- The Sudanese Evidence Act, 1993.
- The Sudanese Narcotic Drugs Act, 1994.
- The Interim National Constitution of the Republic of the Sudan, 2005.
- The Constitutional Document of the Republic of the Sudan, 2019