Such trial should have not been referred to the National Supreme Court through its
Circuit in Red Sea and Kasala States since it has the jurisdiction over the same.
However, as long as the papers have been brought forward before us combined with a
petition from the convict, and since we have the general jurisdiction over the same, we
adjudicate in respect of whatsoever raised in the petition in the course of exercising our
powers in the affirmation of judgments under Article (181) as an objection to the
judgment for withholding the affirmation thereon.
The convict expressly provided in his petition that he has been since two years in an
extensive relationship with the victim who was 20 years old, and repeatedly performed
sex with her motivated by her consent. Such sexual intercourse cannot be deemed a rape,
which in the first place amends the description of crime and the Child Act is not
applicable to the facts of the criminal case.
The following points should be adjudicated, thereby resulting in legal effects:
1. Was the victim a child?
If the answer is NO, was the sexual intercourse performed by her consent or was it a
rape?
2. Is the application of Child Act on the assumption that the conviction is valid, require
imposition of the penalty prescribed in such Act only without imposing Sharia
punishable penalty prescribed for adultery?
Firstly: Nevertheless, Article (3) of Child Act defines the child every person who has not
exceeded eighteen years of his age. But this definition is absolute as we are in the process
of a non-child criminal responsibility which is based on adulthood, completion of
eighteen years or reach eighteen years of age, and on the examination of same matter on
the victim`s part if the consent is an object of investigation and important in determining
the criminal responsibility for committing a shameful act like rape, particularly the victim
was 17 years old and reached puberty as evidenced by her pregnancy. So, can we say
that she was a child simply because she has not attained eighteen years of age and hence
the performance of the sexual intercourse with her is deemed to be a rape? Accordingly
the criminal responsibility of the accused raises this question.
The main source and reference of the Child Act has not determined a specific age for the
child that is the Standard Minimum Rules for the Administration of Juvenile Justice
(Beijing Rules). Section (1) to the General Principles of such Rules provides a specific
definition for the juvenile being a child or young person who, under the respective legal
systems, may be dealt with for an offence in a manner which is different from an adult.
This means that the matter relates to the issue of the child and handling his delinquency,
and ensures that Beijing Rules have not determined the age of criminal responsibility as it
is left to each country in the table which ratified such rules to determine the suitable age