Rights Disregarded Under Sudan's Weak Constitution

When Sudan adopted an interim constitution in 2005 as part of a peace deal with the south, there were high hopes that the human rights principles enshrined in it would improve the situation on the ground. Five years on, rights activists say this has not happened – the Khartoum government continues to ignore its constitutional responsibilities, and routinely tramples on human rights.

The interim constitution will have to be replaced after South Sudan formally separates from the north on July 9, following a referendum held in January.

Women’s rights activists say things can only get worse because once the Comprehensive Peace Agreement, CPA, that governed north-south relations becomes redundant, international scrutiny of Khartoum’s respect for human rights will be greatly reduced and the authorities will feel free to do whatever they want.

They fear the country is drifting towards a more repressive system based on the NCP’s particular interpretation of Islamic laws. Aside from the danger that a new constitution could contain restrictive provisions, the government in Khartoum will be in a stronger position to introduce new pieces of legislation to enforce its oppressive views, interpret existing laws in a harsher light, and punish those who speak out against it.

There are already signs of this happening – increased levels of repression have been observed over recent months, and the ruling National Congress Party, NCP, is forging ahead with drafting a constitution without consulting other political parties, still less civil society groups.

INTERIM CONSTITUTION IGNORED

Sudan adopted the current interim constitution in 2005 when the NCP and the southern Sudan People’s Liberation Movement, SPLM, signed the CPA, thus ending one of Africa’s longest-running and bloodiest civil wars. The document applied to the entire country, but once South Sudan formally secedes and the CPA lapses, it will have to be replaced with a constitution for the north alone.

Although the interim constitution proclaims Sudan’s adherence to human rights and international legal standards, women’s groups say it has largely failed to deliver, and has not had the transformatory effect on the law and its implementation that many had hoped for.

“We hoped the CPA would make things better, and move our country ahead towards democracy and peace. That hasn’t taken place,” Sudanese gender activist Fahima Hashim said.

Hashim said individual laws had not been revised as the CPA and interim constitution required. This meant the country was effectively left with “the same legal system that was approved by fundamentalist groups in 1991”.

“The CPA has not made any changes [although] part of the CPA is reform of the law,” she said. “Legal reform never took place.”

ISLAMISATION BY STEALTH

Hashim argues that throughout the CPA period, the NCP has been quietly building a more Islamic system for the north, while allowing the non-Muslim south to go its own way.

“That social fabric has been created to serve the purposes of their party, not the purposes of peace and democracy,” Hashim said, adding that once South Sudan is independent, the NCP will forge ahead with regressive plans “which they had been freezing because of international pressure – they will revise it and make it even worse. I see this from what has been happening.”

In practice, written laws are frequently replaced by rulings based on Sharia or Islamic law, resulting in penalties that contradict rights envisaged in the interim constitution and CPA.

“The main problem is that the NCP does not separate religion from politics, and it says certain things are not allowed under Sharia simply to serve its own political interests,” Om Ahmed, a lawyer from Zalingi in Darfur, said. “Therefore, the policy of the state overwhelms all laws and everything in the constitution.”

Already, despite the interim constitution’s explicit stress on gender equality, women’s rights that are enshrined in law are routinely ignored by the executive and judiciary. If that has been the case since 2005, the situation is likely to get much worse once Khartoum is free of the CPA, the interim constitution and the international scrutiny that has accompanied them.

Rights activist Eiman Abdalla Bribo said the NCP had effectively locked the interim constitution away in a drawer and forgotten about it, and that “instead they work with other legislation, like the national security and public order laws. We don't even know what the source of this legislation is – sometimes they say it's Sharia and sometimes it’s unknown.”

“There is still discrimination against women in civil, political, social and cultural rights. Harmful traditions that diminish the women’s status in society are enforced, such as female circumcision and early marriage,” Bribo explained. “These things take place in full view of everyone, including the authorities, despite the fact that they are not technically allowed by law. Women are still beaten and flogged under unclear laws.”

Om Ahmed said she frequently encountered officials who told her that constitutional protections like the right to maternity leave and to equal pay and working hours did not apply.

“The authorities tell me they do not care about implementing women’s rights. They say, ‘Yes, it is written in the constitution, but if we implement these rights, what are women going to do with them?’,” she said. “They get out of implementing them by trying to link them to unconstitutional legislation, like the laws on rape and national security, to Islam and Sharia.”

The judicial treatment of rape cases exemplifies the difference between written safeguards and actual legal practice, in which rape is dealt with under Sharia. Unless the victim can produce four male eyewitnesses to the actual assault – an impossibly high standard of evidence – she risks being prosecuted herself – for adultery.

Since 2005, human rights and women’s groups have brought a number of cases to Sudan’s constitutional court claiming that laws or their implementation violate the CPA and the interim constitution, but few have been successful. According to Lutz Oette, a Sudan expert with the human rights group Redress, judges in the nominally independent court “very seldom” issue rulings against the government even on clear-cut breaches of the constitution.

REPRESSION ALREADY UNDER WAY

Like other rights advocates, Amira Khair of the Women’s Initiative for Gender Justice warned that in the run-up to South Sudanese secession, “harassment of human rights defenders and women's groups is [already] going on”.

As well as anticipation of a post-CPA era, some believe the rising intolerance of government critics is a response to the grassroots protests that have rocked North African and Middle Eastern states in recent months.

The clampdown is reflected in action by the Sudanese security services to halt protests and demonstrations and block the publication of newspapers. To justify this, they use national security laws which give them wide-ranging powers of surveillance and arrest – undermining rights and freedoms set out in the interim constitution.

“When we make any protest, the security services say, ‘This is a bad idea and we will kill this idea off. If a woman speaks out about freedom for women, or anything that goes against Sharia [Islamic law], we will kill it off,’ a women’s rights activist told IWPR. “How can we pursue change in the face of this bad government? Once Sharia is implemented in a more robust manner, we will be crushed by the police’s boots even more.”

Human rights groups say activists who raise their voices and call for change are detained by the powerful National Intelligence and Security Service, NISS, and sometimes beaten, or worse.

A report which the African Centre for Justice in Peace Studies published in April detailed cases of “brutal and widespread torture” used against people detained after a January 30 demonstration by the Youth for Change Movement. The cases it recorded included rape and other forms of sexual violence against women.

In December 2010, the New York-based watchdog group Human Rights Watch reported the arrest of over 60 Sudanese women's rights activists following a peaceful protest against an incident in which a woman had been flogged by police.

Human Rights Watch said these arrests showed the urgent need to reform “public order” laws which permit draconian punishments like flogging and even stoning.

“What we’ve seen in Sudan is the use of lashings to punish very minor crimes like the brewing of alcohol or ‘indecent dress’, or other so-called public morality crimes. These public order laws are very vague and over-broad,” Jehanne Henry, a Sudan expert at Human Rights Watch, told IWPR. “The way this public order regime works in Sudan is deeply problematic. It discriminates against women and girls in particular, but also against southerners who are not Muslim, and it imposes sharia punishments that contravene basic human rights standards.”

Gender activist Fahima Hashim highlighted public floggings of women for being dressed “inappropriately”.

“There is nothing in Islam to say that if you wear trousers you should be flogged. This is the mentality of the people who designed the law. They are putting these definitions for what women should wear,” she said, “The government is trying to force Islamic dress on women by trying to create a uniform for universities and push for certain clothing in government institutions and public hospitals and spaces.”

Hafiz Mohammed of the London-based rights group Justice Africa said, “The regime is linked to Islam, so people are linking these laws to Sharia to justify what they are doing…. They are using the name of Sharia to oppress. At the end of the day, these are oppressive laws and they are trying to scare people and impose a certain life on others.”

Sudanese commentator Omar Ismail says such actions are a warning of what may happen once the CPA era is over.

The government already uses unconstitutional measures to suppress its opponents, he said, adding, “If they are doing that now, what will stop them from stepping further outside the constitution? Extrajudicial measures will get worse because they will have a free hand in the north.”

A women’s rights activist interviewed by IWPR said the end of the South Sudanese presence in the coalition government in Khartoum further curtailed the scope for positive influence.

“When the SPLM was with us, it took action on behalf of women. After [its departure], the government will take many bad actions against women,” the activist, who did not want to be identified, said.

Sudanese lawyer Ali Agab pointed out that the NCP was able to push unconstitutional acts through parliament even in coalition with the SPLM, so after July it would be “very hard to start negotiating with the NCP to implement the human rights chapter in the new constitution, because there will be no power to do that”.

Hashim said the smaller opposition parties that would remain would not be able to exert much of an influence, “They don’t have a strong platform to fight from, and they don’t take action. They don’t have new strategies to deal with the government.”

“This means that north Sudan, after the separation of the south, will be in a very risky situation,” she said. “Given the mentality of the NCP, and the enforcement of Islamisation, they are sending out threats to create fear and to gain power and control. Will things get worse? It is very clear that the government has ignored legal reform; it is very clear it wants to revert to the 1990s implementation of Islamic laws, which was very violent.”

In Darfur, lawyer Om Ahmed believes an upsurge in violence there is directly linked to the transition from the CPA to a new era.

“The phenomenon of armed groups randomly intimidating and frightening women could be in preparation for the post-transition period,” she said. “The rape rate is high – and this is happening under the CPA and the interim constitution. The fate of the displaced in camps is not known yet, and…people have been killing for unknown reasons; there is no justice.”

Meanwhile, intense fighting in the border areas of Abyei and South Kordofan on the eve of southern independence – displacing over 70,000 people – has revived suspicions about Khartoum’s willingness to act in good faith.

NO TRANSPARENCY ON NEW CONSTITUTION

The crackdown on protest, coupled with the trend towards more repressive laws and implementation, is stifling debate on how to create a constitution for the new Sudan, minus the south.

Sudanese justice minister Mohamed Bushara Dusa from the ruling NCP has already submitted the party’s own draft constitution for review by the council of ministers, but has excluded opposition and civil rights groups from the process.

The lack of transparency and inclusiveness is an another example of how the NCP conducts its affairs – railroading laws through as it chooses – and spells trouble for the future, activists say.

Om Ahmed said female lawyers asked the government long ago to be part of the drafting and review process, but had been shut out.

“We hoped that we could provide neutral and independent representation for women during discussions, but still we don’t know what is going to happen. So far, all discussions are contained [within NCP circles],” she said.

Opposition politicians say their parties face the same problems as civil society groups in entering the constitutional debate – public talks and other events hosted by opposition parties are banned.

“In this environment, where many people are arrested and tortured for holding opposing political views, we cannot have a genuine debate about the constitution,” Amal Gabrella Sidahmed, a senior member of the Communist Party, said. “The Communist Party’s Al Midan newspaper is often banned from publication. People are arrested from different opposition parties as well as civil society. We are all in the same boat.”

Since the NCP looks set to dominate the drafting process, the question arises of what its preferred constitution will actually look like.

“The concern is that the NCP will draft a constitution that does not contain the type of human rights protections that exist in the current interim constitution,” Henry said. “We are calling for a transparent, inclusive process and participation by civil society.”

President Bashir warned in December that if the south seceded, “the constitution will be amended and there will be no room to talk about ethnic and cultural diversity – Islam and Sharia are the main source of legislation”.

Sources say the draft constitution is simply a reworked version of the interim one, with all references to South Sudan removed.

The NCP’s spokesman in Britain, Babikir Ismail, confirmed that the party planned to remove references to the CPA and thus return to the constitution that was in place prior to 2005.

“The debate in the parliament is whether all the chapters relating to the CPA should be dropped. The constitution will be the same – nothing will change,” he told IWPR. “We don’t believe that our constitution before the CPA is lacking, and [it] boasts elements which preserve human rights. The CPA was just an addition to the constitution showing our commitment to ending the war with the south”.

Ismail said the NCP leadership was committed to broad consultation with all opposition parties and non-government organisations on the constitution. “Even though we have a majority in parliament, we will invite other political parties to have input in the formation of a new constitution.”

Sidahmed warns that reverting to the old constitution will not secure women’s rights because there is always a get-out clause “placed between brackets” allowing Islamic or customary law to take precedence over other legal provisions.

“As women of Sudan, we need a constitution which is democratic but also gender-sensitive, and where it is clearly stated what is meant for women. This means scrapping the section between brackets".

International advocate Markus Böckenförde, who was involved in shaping the CPA and the interim constitution, notes that arguing against the misuse of religious ideology is not the same as trying to shut out the important role played by religion. He believe Islamic values are compatible with human rights and deserve to be be included in discussions on the new constitution.

“If you follow the traditional roots of Islam in Sudan, the most basic human rights enshrined in the constitution are reconcilable with the religion,” he said. “But unfortunately in Sudan in the last decades, Islam has often been misused as an ideology and political tool to stay in power and to control and suppress people…. Let’s not put the religion in a corner in the upcoming discussions.”

PRESSURING KHARTOUM

Sidahmed believes that neither local parties and pressure groups nor the international community alone can put pressure on the NCP and its security services to allow a more open, democratic debate about the constitution – they need to act together if they are to achieve this.

Amira Khair issued a stark warning, “If the international community does not engage now, and the focus continues to be on the south, the Khartoum government will be free to do what it wants in the north.”

Katy Glassborow is a senior IWPR reporter and Assadig Mustafa Zakaria Musa is an editor for Radio Dabanga. Together with Zakia Yousif, they produce Fi al Mizan, a radio programme on justice issues which is broadcast across Darfur in local languages to millions of listeners.