SUDAN GOVERNMENT vs. ALEO DENG

(AC-CP86-1956)

Principles

·  Criminal Law: murder section  251 S.P.C.—act justified  by law - section 44 S.P.C.-act compelled by threats-section 53 S.P.C. — Duty of Prison Warder—Prison Regulations

·  —Regulations 23 (5) — Regulation 23 (12) — Schedule V Sections 2 and 3.

Criminal Law: murder section 251 S.P.C.—act justified by law - section 44 S.P.C.-act compelled by threats-section 53 S.P.C. — Duty of Prison Warder—Prison Regulations

—Regulations 23 (5) — Regulation 23 (12) — Schedule V Sections 2 and 3.

Judgment

A quarrel having broken out between two prisoners in a prison working party, the accused, a prison warder, ordered three other members of the party to separate the quarrelling prisoners. At the same time the accused, who was armed with a rifle, loaded his rifle and despite the intervention of a by-stander shot at the prisoners. The deceased pleaded with the accused to spare him but was shot from a range of about two yards. The accused pleaded in defence that he had been ordered to kill prisoners who caused trouble.

Held: (1) the accused was guilty of murder.

(2) Sections 44 and S.P.C. did not apply to exculpate the accused.

(3) Finding and sentence confirmed.

Reference for confirmation under Section 251 Sudan Code of Criminal Procedure. The facts are fully set out in  the note on confirmation.

Abu Rannat C.J.: The Accused was a prison warder. He was in charge of five prisoners who went on duty to take water to the official quarters. Two of’ the five prisoners quarrelled. The Accused ordered the three other prisoners to separate  them. At this moment the Accused loaded his rifle. A bricklayer saw him and advised him not to do any harm to the prisoners but take them back to the prison. The Accused refused to listen to this advice and ordered the bricklayer to mind his own business. He at once fired at the prisoners. He missed one man, injured three and killed one.

There is evidence that the Deceased was praying to the Accused to leave him but the Accused shot him dead at a distance of about two yards only.

The Accused pleads that he was ordered to kill these prisoners by the Sergeant in charge of the prison. In other words he is raising a

defence under Sec. 44* or possibly Sec. 53** of S.P.C.

There is no evidence whatsoever that these two sections are applicable. The duty of a warder is shown in Regulation 23 of the Prisons Regulations. Regulation 23 (5) lays down that amongst the special obligations all prison staff are to use no unnecessary force at any time on a prisoner, not to strike him except in self-defence, and Regulation 23 (12) provides that the warder is bound to treat prisoners at all times firmly but humanely.

The permissible use of firearms by prison staff is laid down in Schedule V of the Prisons Regulations. The important and relevant sections to this case are 2 and 3 which read : - 2. Firearms may be used to ward “off an attack by a prisoner on warder or on any other person, or to overcome resistance when accompanied by violence of such a kind as to cause reasonable apprehension that death or grievous hurt is likely to result if firearms are not used. 3. Firearms may be used to prevent an escape which cannot otherwise be prevented and in such case the prisoner shall be called upon to stop before fire is opened. If he fails to do so he is to be fired upon directly and in no case is a “warning shot to be fired.”

So there was no defence whatsoever by this prison warder either under the Code or under the Prison Regulations.

I therefore confirm the finding of murder and death sentence against the Accused.