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The Many Hats of the Sudanese Magistrate: Role Conflict in Sudanese Criminal Procedure
Published online by Cambridge University Press: 28 July 2009
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The Sudan, a vast country of approximately one million square miles, is a political rather than an ethnic unit. Beside the Arab tribes, which are not as homogeneous as their common origin may suggest, there are numerous non-Arab tribes of several racial and linguistic families. In any description of the population one is reduced to such generalisations as “predominantly Arab and entirely Islamic in the north, and predominantly negroid and pagan in the south, but there are so many exceptions and qualifications…”
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- Copyright © School of Oriental and African Studies 1978
References
1 According to the First Population Census of the Sudan, 1955–1956, 51% of the population speak Arabic, though only 40% are of Arab origins. There are 572 tribes. 61% of the population is Muslim; the bulk of the rest believe in various indigenous religions.
2 MacMichael, Harold, The Sudan, London, 1954, 16.Google Scholar
3 MacMichael, Harold, The Anglo-Egyptian Sudan, London, 1934, Chapters XX and XXI.Google Scholar
4 Mustafa, Zaki, The common law in the Sudan, Oxford, 1971, 33.Google Scholar
5 Elements of customary and Islamic law remain, but are subsumed under the present westernized system: see C. Thompson, “The formative era of the law of the Sudan”, (1965) Sudan Law Journal and Reports [hereinafter referred to as S.L.J.R.] 474.
page 51 note 1 See generally, Mustafa, The common law in the Sudan; and E. Guttman, “The reception of the common law in the Sudan,” (1957) 6 I.C.L.Q,.401.
page 51 note 2 Holt, , A modern history of the Sudan, London, 1961, 117Google Scholar. Warburg, G., The Sudan under Wingate, London, 1971, 125.Google Scholar
page 51 note 3 Guttman, “The reception of the common law in the Sudan”, op. cit., 409.
page 51 note 4 MacMichael, The Sudan, 74; Henderson, , Sudan Republic, London, 1965, 57.Google Scholar
page 51 note 5 The 1899 C.C.P. was revised and re-enacted in 1925. Revised editions of the Code were also prepared in 1941 and 1954. The current Code of 1974 is another re-enactment, incorporating many amendmaents as well as new additions and some re-arrangement.
page 51 note 6 The term “information” is a technical term meaning formal complaint for the police to act upon and initiate criminal proceedings.
page 51 note 7 When the police officer refuses to accept an information as he is entitled to do under ss. 111 (1) and 122C (1) if he is “satisfied that no public interest will be served by a prosecution”, he must nonetheless “notify in writing the informant of his right to complain to a Magistrate under s. 135”.
page 52 note 1 C.C.P., ss. 111 (1) and 122C (1).
page 52 note 2 S. 117.
page 52 note 3 S. 120.
page 52 note 4 Sudan Government v. Bakheita Mingas (unreported), C.P. Ct. Gr. App-337–1970.
page page 52 note 5 Offences under the Penal Code are classified in the third column of the First Schedule to the C.C.P. in terms of whether the police may or may not arrest for them without a warrant.
page 52 note 6 C.C.P., s. 112.
page 52 note 7 S. 122C (2).
page 52 note 8 S. 135(1).
page 52 note 9 S. 114 (b).
page 52 note 10 S. 115 (1) requires that such Case Diary be kept in every investigation under the C.C.P. In this Case Diary the police officer conducting the investigation must set out, in chronological order, any information received in connection with the investigation, any action taken or inquiry made and the facts ascertained, any report made by other policemen and the statements of witnesses together with the First Information Report.
page 53 note 1 The First Information Report, initially, or the Case Diary, subsequently, is usually signed with the remark: “to the police for investigation”.
page 53 note 2 S. 122B (1). This may not, however, be very helpful to the police because magistrates are not usually forthcoming with specific directions and instructions with respect to the particular case: see below.
page 53 note 3 Ss. 114 and 122.
page 53 note 4 S. 138. Note that a magistrate may be directed by a superior to conduct an investigation.
page 53 note 5 S. 139.
page 53 note 6 This article is confined to the practice of regular “state” courts constituted under the C.C.P. The Native Courts Ordinance, 1932, and the Chiefs’ Courts Ordinance, 1931, regulate the constitution and powers of the so-called “native courts”, which apply a mixture of customary law and formal enactments, including the Penal Code.
page 53 note 7 See C.C.P., Chapter II. A bench of three magistrates, constituted under C.C.P., s. 10A is generally regarded as a court of a single magistrate of the class specified in the warrant of constitution.
page 53 note 8 See C.C.P., Chapter III.
page 53 note 9 See the Report of the Interdepartmental Committee on the Business of the Criminal Courts, Cmnd. 1289, 1961, para. 72.
page 53 note 10 See the Report of the Royal Commission on Assize and Quarter Sessions, Cmnd. 4153, 1969 para. 190–191, on the problem of allocation and the need for flexibility.
page 54 note 1 See ss. 145, 149 (2), 160, 172A (3) and 237 of the Sudan C.C.P.
page 54 note 2 Cf. reference to higher courts for sentencing under other systems.
page 54 note 3 C.C.P., s. 156, stipulates that only first and second-class magistrates may commit for trial by major court.
page 54 note 4 See C.C.P., s. 160.
page 54 note 5 See Criminal Court Circular No. 21, Part 1.
page 54 note 6 See Arts. 63 and 68 of the Constitution, and ss. 39 and 212 of the C.C.P.
page 54 note 7 According to the Roll of Advocates there are only 420 civil advocates at present.
page 55 note 1 C.C.P., s. 122 (3) and (4).
page 55 note 2 N.P. Ct.-Crim. App.-436–1970.
page 55 note 3 As the court pointed out in Sudan Government v. Charli Mousalli (1967) S.L.J.R. 126, at p. 128: “The Court is not precluded from exercising its discretion under this section merely because somebody asks it to do so”.
page 56 note 1 H. Mannheim, “Trial by jury in modern continental criminal law,” (1937) 53 L.Q.R. 99, at p. 112.
page 56 note 2 See generally, A. E. Anton, “L’instruction criminelle”, (1960) 9 Am. J. Comp. L. 441; Robert Vouin, “The prosecution of the accused in French criminal procedure”, (1956) 5 I.C.L.Q,. 1, 157; C. J. Hamson, “The prosecution of the accused—English and French legal methods,” (1955) Crim. L.R. 272; Sheehan, A. V., Criminal procedure in Scotland and France, Edinburgh, H.M.S.O., 1975, pp. 43et seq.,Google Scholar and Williams, G., The proof of guilt, London, 1963. 29.Google Scholar
page 57 note 1 (Unreported) Ct. App.-Crim. Rev.-20–1974.
page 57 note 2 C.C.P., ss. 111 (1) and 122 (1).
page 57 note 3 Ibid., and ss. 135 (1) and 136.
page 57 note 4 The available record is in Arabic. This is the author's translation of the relevant remark of Mr. Justice Mohamed Ahmed Abu Gessesa.
page 59 note 1 The Attorney-General is now the Minister of Justice, with the Advocate-General in charge of civil, and the Prosecutor-General in charge of criminal, matters. As will be seen from the text of sections of the 1974 version of the C.C.P. quoted below, all references to the Advocate-General are now references to the Attorney-General.
page 59 note 2 S. 211 of the C.C.P. has been amended in 1974, not only to replace reference to the Advocate-General by reference to the Attorney-General and his representative, but also to drop all reference to the Governor and District Commissioner. The rest of the section remains unaltered.
page 59 note 3 These are cases triable by a major court, cases involving offences against the state, and cases involving offences suspected to have been committed by public servants in the course of their duties.
page 60 note 1 The Circular is not available in English.
page 60 note 2 At its peak, the service consisted of four provincial branches manned by one or two professional staff of low rank and little practical experience who were supposed to handle thousands of serious prosecutions every year. Naturally, they had very little impact on the administration of criminal justice in the country as a whole.
page 60 note 3 The official translation of the 1974 C.C.P. is not yet available. This is the author's translation from the Arabic text of the Code.
page 61 note 1 Again, this is the author's translation of the sub-section.