Sudan: Prospects of justice after the downfall of Al Bashir
Mohammed Elgizoly Adam: LLM Utrecht University.
Sudan is one of the largest African countries and the most diverse country in Africa. Further, it has witnessed the longest civil war on the continent. It is often known, in particular, since 1989 with violence and grave human rights violations including genocide war crimes and crimes against humanity. Since 1989, it has been governed by the most notorious Islamist political party that has substantially 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.
Currently, what is happening in Sudan is something beyond anyone’s expectations. It might be the most massive demonstration that modern statehood has ever experienced. The attempt to peacefully overthrown the Islamic regime in Khartoum has begun around 2013. However, the most drastic attempt started in December 2018. Since December more than 80 protesters have been killed, and hundreds have been injured.
With no doubt that Al Bashir, the ousted president of Sudan has always been a figure in the infamous international Muslim Brotherhood organization and a pivotal leader in the branch of Sudan so-called National Islamic Front. He is wanted by the ICC for serious crimes committed in the Darfur region. Since 2003, apart from thousands of refugees in neighboring countries, more than 300,0000 people have been killed, and over 2.3 million have internally displaced in Darfur.
AL Bashir was one the longest serving presidents in the continent. It is the Muslim Brotherhood that brought him to power in 1989, 30 years ago. The coup was orchestrated by the well-known brotherhood leader Dr. Al Turabi. The nature of this organization is quite dangerous, in the sense that it is highly organized; it is an elite organization. The Sudan branch was established by students group since 1949. Hence Sudan has been ruled for 30 years by the Muslim Brotherhood organization, and this implies that they are deeply embedded in almost every corner of the Sudanese institutions.
First, the same political parties that have been oppressed for thirty years, now have to deal with the biggest demonstration in the 21st century. The only thing unit These political parties is the threat from the Muslim Brotherhood organization and the fear of a new military coup. Hence it might be unlikely to agree on a competent leadership to lead this transitional period unanimously, and thus without leadership with a certain quality, the issues of peace and justice will not be addressed adequately.
Second, for grave crimes and gross human rights violation committed in Darfur, the Blue Nile and Nuba Mountains; victims have been waiting for justice for so very long time. As a result, millions of people have been forcibly displaced IDPs, and thousands had to flee the country. Besides, over a million have been killed in these regions over the last two decades. The challenges are associated with how to deliver justice to such a significant number of victims and the prosecution of thousands of defenders in light of incompetent judicial system and corruption.
Third, the possibility to achieve lasting peace in these destroyed regions.
Given the fact that several rebel forces with different capacities and interests have been functioning in and outside these regions for roughly two decades; hence the difficulty lies upon a comprehensive peace agreement that includes all the forces involved.
The current situation on the ground:
After thirty years of oppression, appalling injustice, and poverty that resulted in generations who have been deprived of inherent rights both with positive and negative obligations such as the right to vote, right to life and the right not to be tortured.
As consequences, people have decided to put an end to such historical vicious circle of civil wars, poverty, and oppression. No one knows, but young Sudanese; what is like to be ruled by the Muslim Brotherhood organization in the 21st century and being deprived of almost every right. Therefore, currently, millions of people with all categorization are demonstrating and experiencing the joy of being free and the right to determine how to live. Sudanese have realized the collective power they have, not only to overthrow a dictatorship but to decide the future of their country.
These thirty years of Muslim Brotherhood ruling have not merely been devastating to the people, but it has destroyed almost every element of civil society and civic administration in Sudan. Hence political parties have been weakened or deconstructed, and education curriculum has been changed to fit the Brotherhood ideology.
Sudan national legal system:
Over the last thirty years, The legal system in Sudan has gone through significant alteration. In effect, it has been weakened by corruption and altered to fit the Brotherhood ideology. For instance, Sharia law has become the prominent and primary law, in all areas including criminal, civil law.
Therefore, given the nature and the scope of the crimes committed in certain regions such as Darfur; the Sudanese legal system is incompetent to try these crimes. From the legality principle point of view, there is no mention of genocide, crimes against humanity or war crimes in the Sudanese legal system. Besides, grave violations of human rights occurred before the interim national constitution of Sudan, 2005, which incorporated certain rights and the state’s obligations.
Further, the courts are incompetent to grantee the fundamental rights of both the victims and the defenders. For example, issues will arise such as integrity of judges, transparency and the possibility to ensure robust victim protection or fair trials.
For these reasons, given the seriousness and the scope of these crimes, it might be unreasonable to rely on Sudanese legal system alone to administer justice, in particular, genocide, war crimes and crimes against humanity. Although the ICC has jurisdiction over certain crimes in particular regions, there is an urgent need to establish an ad hoc tribunal with specific temporal and material jurisdictions as well as well-defined cooperation with the national courts.
Moreover, for sure Al Bashir has gone, but his regime remains to be functioning as if nothing has happened. Primarily, the ruling party has been and still controlling almost all the institutions including the judicial branch, media, and law enforcement forces. For instance, for so long the government is run by the security apparatus, in which all personnel is partisans. Nonetheless, after all, the security forces (NISS) remains intact.