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Some Aspects of the Sudan Law of Homicide
Published online by Cambridge University Press: 28 July 2009
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The Sudan Penal Code (henceforth abbreviated as S.P.C.) was, with minor modifications, copied in 1899 from the Indian Penal Code (henceforth abbreviated as I.P.C.), which in its turn was to some extent based on 19th-century English criminal law. Since its enactment, the S.P.C. has been revised and re-enacted once in 1925, but no significant changes were then effected. Law makers in the Sudan are at present engaged in the revision and reformulation of the laws of the country in an attempt to bring them into line with the modern needs of a changing society. It is the feeling of the present writer that the field of criminal law warrants the least intervention or modification because the S.P.C has, in its 75 years of existence, been largely satisfactorily interpreted and applied, resulting in what could legitimately be called the criminal law of the Sudan. This, however, is by no means tantamount to saying that the Code is satisfactory in all aspects and that there is no room for improvement. At any rate, it is not intended to discuss in this article what possible changes should be brought about in the Code as a whole, a task which would evidently need much more time and space. It is merely hoped to discuss critically some aspects of the law of homicide as laid down in the Code (and applied by the courts). In so doing it is hoped to show that in some respects the Sudanese law of homicide calls for modification of some of the provisions, while other provisions of the Code are so satisfactory that they may contribute to the resolution of problems faced by other legal systems.
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References
2 S.P.C., s. 246; I.P.C. s. 299, provide: “Whoever causes death by doing an act, (a) with the intention of causing death or such bodily injury as is likely to cause death, (b) with the knowledge that he is likely by such an act to cause death, commits the offence of culpable homicide.”
page 93 note 1 “(1) Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of another person by mistake or accident. (2) Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. (3) Culpable homicide is not murder if the offender, being a public servant acting in the advancement of public justice or being a person aiding a public servant so acting exceeds the power given to him by law and causes death by doing an act which he in good faith believes to be lawful and necessary for the due discharge of his duty as such public servant or for assisting such public servant in the due discharge of such duty and without ill-will towards the person whose death is caused. (4) Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. (5) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes die risk of death with his own consent.”
page 93 note 1 D. Seaborne Davies, “Child-killing in English law”, (1937–8) 1 M.L.R. 203.
page 94 note 1 B.P.P., 1866, Vol. xxi, Minutes of Evidence, Stephen, Q. 2193; Lord Granworth, Q. 5–8; Walpole, Q. 409–410.
page 94 note 2 Ibid.
page 94 note 3 Ibid., para. 15 of the Report.
page 94 note 4 For a detailed description of such attempts see Seaborne Davies, op. cit.
page 94 note 5 Seaborne Davies, op. cit. at p. 285; The Times, July 23rd, 1936.
page 94 note 6 R. v. O'Donoghue (1927) Cr. App. R. 132.
page 94 note 7 S.P.C.s. 251.
page 94 note 8 Code of Criminal Procedure, s. 256 (1) (b).
page 95 note 1 AC-CP-1942 unreported. [In this article, “S.G.” = Sudan Government.]
page 95 note 2 AC-CP-256–1931, unreported.
page 95 note 3 AC-CP-235, 1931, unreported.
page 95 note 4 AC-CP-190, 1929, unreported.
page 96 note 1 S.G. v. Nabiha Hassan Abdulla, AC-CP-259–1929, unreported; S.G. v. Husna bint Abdel Majid AC-CP-3–1930 unreported; S.G. v. Makka Ali Saeed (1962) S.L.J.R. 92.
page 96 note 2 S.G. v. Umbashair bint Bushara AC-CP-209–1935, unreported; S.G. v. Abdulla Mohamed (1963) S.L.J.R. 167. In both cases the accused was convicted of murder but the sentences passed were seven years' and one year's imprisonment respectively.This is an obvious contravention of S.P.C., s. 251, which fixes the punishment for murder as death or imprisonment for life.
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page 96 note 4 S.G. v. Zeinab bint Mohamad Suliman, A.G.-C.P. 114–1930 unreported.
page 96 note 5 S.G. v. Fatma, bint Abuzeid, A.C.C.P. 170–1928. Unreported.
page 96 note 6 S.G. v. Zaila Fadl Elmula (1961) S.L.J.R. 146: S.G. v. El Faigha Sabir (1963) S.L.J.R. 172.
page 96 note 7 AC-CP-607–1967, unreported.
page 97 note 1 Ibid.
page 97 note 2 C.C.P., s. 277.
page 97 note 3 Sir James Craddock before R.C.C.P., 1866. Minutes of Evidence, Q. 3810.
page 97 note 4 Fitzgerald, S.G.V., “The reform of the law of murder”, (1949) 2 C.L.P. 27, at p. 31.
page 97 note 5 Ibid.
page 98 note 1 S.G. v. Dai El Nur Isagha, AC–CP–11–1942, unreported.
page 98 note 2 S.P.C, ss. 55–63.
page 98 note 3 MUDAWI, J. in S.G. v. Kamal El Jack, (1965) S.L.J.R. 65, at p. 72.
page 98 note 4 S.P.C., s. 59.
page 98 note 5 S.P.C., s. 60.
page 99 note 1 S.P.C., s. 61.
page 99 note 2 S.P.C., s. 62.
page 99 note 3 S.P.C., s. 249. See p. 93, n. 1. above.
page 100 note 1 ROBERTS, C.J., in the Indian case of Po Mye v. The King, A.I.R. (1940) Rangoon 129, at p. 132.
page 100 note 2 S.G. v. Ahmed Taha Mohamed, A.C.-C.P.-68–1939. Unreported; S.G. v. Hassan Bilal, A.C.-C.P.-208–1939. Unreported.
page 100 note 3 The Indian Law Commission, 1837, (Calcutta) Note M, p. 62.
page 101 note 1 S.G. v. Mohammed Abdul Hassan Abbas, A.C.-C.P.-1939. Unreported.
page 101 note 2 S.G. v. Yusif Galal Eldin, A.C.-C.P.-46–1945, unreported.
page 101 note 3 S.G. v. Mohammed Yahia Abdullahi, A.C.-C.P.-321–1954. Unreported; cf. S.G. v. Mohammed Adam Onour, (1963) S.L.J.R. 157.
page 101 note 4 (1963) S.L.J.R. 157.
page 101 note 5 S.G. v. Ahmed Taha Mohammed, A.C.-C.P.-68–1939. Unreported. S.G. v. Abdulla Idris, A.C.-C.P.-71–1942; unreported; S.G. v. Assurolo Torit (1961) S.L.J.R. 58; S.G. v. Mohamoud Abdulla Elmalik (1962) S.L.J.R. 164.
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page 103 note 5 (1962) R. & N. 133; reported in [1963] J.A.L. 60.
page 103 note 6 Ibid., p. 62, emphasis supplied.
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[But the law has now been clarified in Palmer v. The Queen 1971 2 W.L.R. 831, P.C., and Reg. v. Mclnnes 1971 1 W.L.R. 1600, C.A.: there is no rule that in every case where the issue of self-defence is left to the jury, the jury must be directed that if they consider death resulted from the use of excessive force by the accused in his defence, they should return a verdict of manslaughter—Eds.]
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