Articles
Sudan
The Sudanese-International Crisis
Mahgoub al Tigani
16/2/07
The problems Sudan has been facing to move peacefully to transitional rule are
both multi-various and complex. Only a conference embodying opposition and government
will do away with these problems or at least prepare the grounds for their settlement.
The intensity and complexity of the Sudan’s Crisis deserves nothing less
than full participation in national decision making by all Sudanese political
parties and civil society groups.
It is not a secret any more that the Government of National Unity (GONU) failed
to live up to the agenda of transition rule. Instead, it is almost regularly
reported that the GONU is a government that is almost completely placed under
the sole control of the NIF/Congress ruling party at expense of the majority
of the population. Even in the treaty guaranteed governance sharing between
the Government of South Sudan (GOSS) and GONU, it was clearly stated in the
words of the President of GOSS that “serious problems” endanger
the process of peace through the CPA.
The CPA fate imposed its negative shadows over the Darfur Crisis, as well as
the newly established agreement between the East Front and the GONU. Recently,
the Menawi faction of the Sudan Liberation Movement and Army (SLM/A) was sharply
opposed to the sluggish, reckless, and failing responses of the NIF/Congress
ruling party to the urgent need to implement all provisions of the Darfur Peace
Agreement (DPA), timely.
The government’s claim that the Darfur rebels should be the ones blamed
for the non-implementation of the DPA is not holding grounds any where; the
fact of the matter is that the Sudan’s Crisis, in general, and the Darfur
and South-North re-emerging crisis, in particular, are political problems that
will be resolved only with national political consensus. All other unilateral
or bilateral solutions or external initiatives will not resolve the complex,
inter-related, and highly politicized problems of Sudan.
On Judicial Reform: The failures of the GONU as led by the NIF/Congress ruling party have manifested themselves beyond any reasonable doubt in the situation of the Judiciary.
The Sudanese Judiciary is a vital source of stability for the upcoming peace and regular democracy in Sudan. The situation of the judiciary under the NIF Salvation Revolution, however, declined to its most derailing conditions since the nation’s independence. Early documented by the American Lawyers (1990), the judiciary became a favorable prey of the military regimes that succeeded the short-lived civilian governments of the country; thus adding accumulated intrusions by the executive and legislative powers over the judicial authority.
A few days before the NIF military coup in June 1989, the next leader of the coup Omer al-Bashir asked a member of the Kordofan judiciary about the administrative independence of the judiciary and its political ramifications. “It would mean what it might happen to you in the armed forces if a battalion were placed under judicial supervision, instead of its regular military command. Executive or legislative intrusions in the Judiciary would mix-up constitutional jurisdictions, confuse administrative duties, and generate possibly a national political crisis.”
This same situation had already taken place in the mid 1960s when the executive branch of the government, led by the Prime Minister and then supported by the Constituent Assembly (the legislative branch), outlawed the parliamentarians of a political opposition party despite clear rejection of the government’s action by the Supreme Court. The result of the conflict transcended the influences of both executive and legislative branches of the government to exacerbate one of the country’s biggest political crises in the twentieth century.
The judge that Bashir asked about the meaning of an independent judiciary, however, never thought al-Bashir was actually planning to destroy the newly-established independence of the judicial system by a military coup he would soon enforce in the country.
The National Islamic Front’s plotting against the Sudanese judiciary
was well known. Early in Nimeiri’s time, especially after the promulgation
and application of the September Shari’a Laws in 1983, the judiciary engaged
in a bitter struggle to preserve legal and administrative independence from
the high executive powers of the President and those of the legislative authority.
Both branches of the government had been dissatisfied with the Judiciary’s
insistence on its independence; the strong stands of judges versus the political
and administrative corruption of the State; and the secular training, legal
procedures, and court systems of the Land.
Early in the 1980s, the President made an attempt to force the Judiciary to
act in accordance with his direct commands. Faced with the judges’ rejection
of his excesses, the President undermined the Judiciary by the establishment
of a High Judicial Council to supervise over the judges’ terms of service,
transfers, and promotions.
The President further adopted anti-judicial measures to strengthen his executive
grip on the judiciary. The judges, in response, went in a public strike. Hundreds
of judges were subsequently dismissed and executives of the State intervened
at large to restructure the whole system with new laws and appointments.
The al-Bashir NIF-led government adopted the Nimeiri’s plan to place the Judiciary under executive patronage. This anti-democratic attitude by the State towards the Sudanese Independent Judiciary had already contributed to the chaos of Darfur and the lacking of tranquility all over the country. The GONU failed to comply with the UN Security Resolutions to surrender the perpetrators of crimes against humanity to the International Criminal Court.
The independent, ethical, and professional stand expected by the Judiciary to collaborate fully with international justice simply gave way to the military, non-professional, and partisan executives and political leaders of the NIF/Congress ruling party. At the same time, the GONU NIF-controlled transitional government, according to the CPA governance provisions, hardly opposed the NIF partisan policies or stands, not to mention the NDA few representatives in the National Council or the SPLM/A non-majority group.
Despite these political and legal obstacles, both interior and external pressures are highly urged to 1) raise awareness about the crisis of the Judiciary in the Sudan; 2) require the GONU and the SSG to reinstate all of the politically purged judges by Nimeiri or Bashir to their positions in the Judiciary; and 3) increase civil society activities with full participation of the dismissed judges and the other professionals and skilled workers to ensure the reinstitution of all these individuals to help manning the deteriorating development of the country and to democratize the ongoing transitional rule.
The correlations that connect a Sudanese independent judiciary with the Darfur genocide and international human rights norms are crystal clear: to allow international justice to enforce the rights of Darfur victims, Sudanese judiciary must prove its legal and administrative competencies - an independent entity before whose courts crime perpetrators, regardless of status or rank, find fair trials and may face deserved penalties in accordance with international human rights norms.
The military and the civilian executives who have most recently thrown the
country into disarray must comply with the UN and the International Community
on the basis of the legality for which separation of government branches and
judicial reform must go hand in hand with international compliance.
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