Wednesday, September 30, 2020

Sudan: Prospects of Justice after the Downfall of Al Bashir

Sudanese Protesters During 2019 Protests

Sudan is one of the largest and diverse countries in Africa. It has also witnessed the longest civil war on the continent. Ever since 1989, it has been synonymous and has come to be known as a country suffering from violence and grave human rights violations including genocide, war crimes and crimes against humanity.  From this period it has also been governed by the most notorious Islamist political party, which has essentially relied on the principle of divide and rule. As a result, millions of innocent people have either been killed or forcibly displaced or fled the country over the past three decades.

Most recent events in Sudan defy logic and reason if one takes into account the country's background and historical context. The recent demonstrations have been the most massive demonstrations that modern statehood has ever experienced. The attempt to peacefully overthrow the Islamic regime in Khartoum started in 2013 and led to more drastic demonstrations in December of 2018 when more than 80 protesters were killed and hundreds injured.  

Al Bashir, the now ousted president of Sudan has always been a prominent figure in the infamous international Muslim Brotherhood organization and a pivotal leader in the branch of Sudan’s so-called National Islamic Front. Currently Al Bashir is wanted by the International Criminal Court (ICC) for serious and grave crimes committed in the Darfur region where since 2003, notwithstanding the thousands of refugees in neighbouring countries, more than 300,0000 people have been killed, and over 2.3 million internally displaced.

As one of the longest serving presidents on the African continent it was the Muslim Brotherhood that brought Al Bashir to power over 30 years ago in a coup originally orchestrated by the well-known brotherhood leader Dr. Al Turabi. The Muslim Brotherhood was a highly organized and elitist organization and its Sudanese branch was established by a group of students in 1949. Sudan has since been ruled for 30 years by the Muslim Brotherhood organization whose values have become deeply embedded and entrenched in almost every area of the Sudanese society.

The Challenges

The challenges facing Sudan in terms of peaceful transition were myriad. Firstly, existing political parties that were oppressed for the past thirty years were now dealing with the biggest demonstrations taking place in the 21st century. These political parties have faced continued threats from the Muslim Brotherhood and were particularly fearful that a new military coup would ensue. It was thus initially considered unlikely that a transitional agreement would be reached whereby a competent leadership would take over power during take over during the transitional period. Without credible leadership it remained questionable whether issues of peace and justice could be adequately and effectively addressed.

Secondly, in terms of grave crimes and gross human rights violations committed in Darfur, including the Blue Nile and Nuba Mountains, victims have been waiting for justice for a very long time and the question on everyone's minds was how would it be possible to deliver justice adequately and effectively enough, in the given situation. The conflict has seen millions of people who have been forcibly displaced into IDPs, and thousands who have fled the country with over a million that have been killed in the above mentioned regions over the last two decades. The challenge was how to deliver justice to such a significant number of victims and how to ensure for the effective prosecution of thousands of perpetrators in light of a weak, incompetent and corrupt judicial system?

Finally, there was the difficulty of achieving lasting peace in the destroyed regions in the country. Given the fact that several rebel forces with different capacities and interests were functioning in and out of these regions for roughly almost two decades the difficulty was further compounded by the necessity of securing a comprehensive peace agreement that would encapsulate the crimes committed by these armed forces and groups.

The Situation Until Recently 

After nearly thirty years of oppression, appalling injustice, and poverty that resulted in generations who were deprived of their inherent rights such as the right to vote, the right to life and the right not to be tortured, a major shift in political power took place in Sudan when protests began in December of 2018. People from different walks of life protested continuously for eight months in an attempt to put an end to the vicious and historical cycle of civil war, poverty, and oppression.  Sudanese people were for the first time very vocal on their natural rights and recognized the collective power they held which would enable them not only to overthrow the existing dictatorship but also assist them in deciding on the future of their country.  

The thirty years of Muslim Brotherhood dictatorship was not only devastating to the Sudanese people, but it also destroyed almost every element of civil society and civic administration in Sudan leading to weak political, legal and educational systems consistent with the Brotherhood ideology.

In terms of Sudan’s national legal system it has been significantly altered to fit the Brotherhood ideology with Sharia law being the prominent and primary law in Sudanese society. Based on the nature and scope of the crimes committed in certain regions such as Darfur; the Sudanese legal system as it stands would in its current state be incapable of addressing crimes of such a magnitude. From the crimes codified and criminalized there is no mention of the crimes of genocide, crimes against humanity or war crimes in the Sudanese legal system leaving no space and indication in the existing legal system on how to address these grave crimes. The legal system in other words would therefore be incompetent and unable to guarantee the fundamental rights of both the victim and defendant. For example problematic issues would arise as to the integrity of judges, transparency and the feasibility of ensuring a robust and fair criminal trial. 

Future Transition and Hope in the Country

Following the ousting of Al Bashir in April of 2019, Sudan embarked on a transition to civilian rule over period of 39 months.  The current transitional government has been mandated through a Constitutional Declaration to reach a comprehensive peace agreement and to deal with the numerous conflicts and systematic problems within the county. Also there has been provision made for an independent commission on transitional justice to investigate the issues thoroughly. Currently there has been criticism and divergent views on how to achieve justice in Sudan and progress has been slow in developing a robust transitional justice mechanism capable of adequately addressing justice concerns in the country. In order to ensure for a robust and adequately functioning transitional justice mechanism past experience from other transitional justice contexts dictates and reveal that within the framework of such a mechanism prosecutions are critical. Aligned with effective prosecutions local justice initiatives that resonate with the local population must be capitalized on for legitimacy and maximum purpose. Additionally capacity building and the strengthening of national institutions remain critical as well as recognition of the relevance of truth telling and reconciliation processes. In achieving such a model it is incumbent upon those driving such a process to have the political will and a measure of independence to see an adequate level of justice done. It is only with these elements in place that true freedom; peace and justice may be achievable for the people and survivors in Sudan.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.



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