STEERING COMMITTEE FOR HUMAN RIGHTS IN THE TRANSITION IN SUDAN
ISSUE PAPER A-3
ADMINISTRATION OF JUSTICE AND LEGAL AID
This paper is based on research done by Yoanes Ajawin.
It is in the opinion of the Committee that, in Sudan during the transition and aftermath, far-reaching social programmes will be required to establish a New Sudan of genuine equality among its citizens. The New Sudan will not be built on idealism, rhetoric and prayers but on the basis of satisfying the material, cultural, social and spiritual needs of all Sudanese in every of life. The law has a key role to play in this process by establishing clear goals, appropriate institutions, suitable norms for each phase, and effective means of participation by all interested parties. The goals, means, norms and institutions are not merely pious projections of what it ought to be. They are given a firm statutory foundation, and appropriate legal responsibilities and corresponding legal rights are created.
The courts are bound to play an important role as mechanism which supervise enforcement and act as instances of last resort in the case of disputes. Moreover, the instruments of the law— the army, the police, the prisons and the judiciary— must be transformed so that they cease to be mechanism of abuse and humiliation of citizens, and become means of genuinely protecting citizen’s rights.
But the courts are not and should not be the immediate and principle agencies for guaranteeing of rights. The vast social programmes that will be necessary in relation to education and other technical programmes require appropriate agencies with appropriate trained personnel, according to appropriately defined criteria, and with an appropriate relationship to the community.
2. JUDICIARY: THE CURRENT SITUATION
After the coup of Lt.Gen. Omer El Beshir, the political authorities assumed wide- ranging powers over the appointment of judges, including the Chief Justice and members to the Higher Judicial Council, the previously independent body of judges responsible for the regulation of the judiciary.
Since 1989 many judges either resigned or were dismissed by the government and replaced by political appointees thus ensuring a compliant judiciary.
Undermining the independent judicial system, the government embarked on creating a variety of special courts to try offenders under the emergency regulations. Military courts set up in July 1989 to try civilians were presided over by three army officers and did not allow defence representation. In September these were replaced by Revolutionary Security courts. In December new Special courts were created. The government claims that these courts allowed defence representation and appeal. In reality, defence lawyers were allowed to be present in the court-room and to speak to their clients but were not allowed to address the court. Hearings frequently lasted only a few minutes. Appeals were to the Chief Justice and not to a higher court. Procedures in all these courts were summary and unfair. They were used to try both political and criminal cases. Though these courts were declared abolished by the authorities, this did not end summary trials in the country. Soldiers and civilians are tried by court-martial since 1991. Prisoners sentenced in courts-martial describe summary hearings lasting only few minutes before military personnel unversed in the law, without any rights to appeal, or to defence, in effect, these are not trials at all, but sentencing sessions.
The government-created Public Order Courts, a category of special courts created in January 1990 by the Chief Justice, have not been abolished and are responsible for hearing cases involving breaches of national laws and local by-laws governing petty offences. They can impose fines and sentences of flogging and imprisonment. The courts sit in continuous sessions and sentences are handed down summarily and immediately.
In April 1994 five defendants in the court-room were sentenced to prison terms ranging from two to seven years. During the trial detailed evidence emerged, supported by official medical reports requested by the court, that at least five of the accused had been forces to confess after being tortured. The weight of the prosecution rested on these confessions. The judge despite acknowledging that at least five of the men had been tortured, decided that this did not disqualify the confessions. This is contrary not only to the international standards but even to the principles of Islamic jurisprudence and the Sudanese judicial precedents. The conviction was unfair and void. Yet the government was full of praise of its Public Order Courts, as Nimeri had been ten years earlier. It is to be recalled that Nimeri was very proud of his misguided application of Islam as the achievements of his new emergency courts. When whether he had any qualms with respect to the justice of these courts Nimeri replied, ‘I have no qualms with respect to their justice, and I believe that this is the best type of justice in Sudan’s history, because of the speed with which sentences are executed’ (Al Tamadon, 26 May 1984). As the Sudanese politician and writer Dr. Mansour Khalid put it: ‘Quick indeed, for people were found guilty, given arbitrary sentences without right of appeal. Again both Nimeri and Turabi have nothing to be proud of other than Emergency and Public Order courts.’
The attack on the judiciary was accompanied by assault on lawyers. Like other professional associations and trade unions, the Sudan Bar Association, which had a long history of independence and human rights activism, was suspended on 30 June 1989 was replace with a steering committee. The Bar Association premises was briefly used as a detention centre. In January 1993, the authorities announced that the Bar Association was to become a general union for Sudanese lawyers subject to the same controls as other government-created trade unions.
Lawyers were among the first detained after the coup. Scores more have been detained over succeeding years and some have been tortured. Some lawyers are arrested to intimidate them and discourage them from taking a role in political trials.
The National Islamic Government also dismantled the other law enforcing agencies specially the police. The government after purging the police forces from its assumed enemies, created when became known as the Popular or People’s Police. This new force had virtually replaced the normal police force. The Popular Police has more powers of arrest and jurisdiction than the normal police. It formed of volunteers with a holy message to cleanse the Sudanese society of evils. Hence its main duty is monitoring what the Government called: ‘Public Behaviour and Discipline.’ This new force is another version of the People’s Defence Force with a mission of Jihad.
Even the court clerks and bailiffs were not spared by the National Islamic government. Many of the judicial clerical staff were purged and replaced by government supporters.
The judicial and the legal system had therefore been transformed by the current government to its own image where justice is no longer its mission.
The present government has succeeded in creating a compliant legal system that has placed all the Sudanese people at risk of unfair trial wherever they are brought before a court.
3. CHALLENGES : REBUILDING THE JUDICIARY
The challenge of a future Transitional Government will be how to strengthen the weakened judiciary to provide a fair legal system to which all have access and in which all have confidence, regardless of their social status, ethnic or regional or wealth.
Successful judicial/legal reform contributes to long-lasting, structural conflict prevention by removing or reducing a major source of conflict.
Legal reform, especially of the judiciary, requires political will by both political elites and legal bureaucracy, and/or sufficient public pressure to make and enforce actual change. Where political will for reform is promising but still relatively weak the advocates of reform will need to pursue constituency- and coalition-building strategies, especially those that generate support for rule of law reform by stimulating public pressure through legal advocacy groups and organisations interested in reform. This will be a major responsibility on Sudanese human rights organisations now and in the future.
Deficiencies in the judicial/legal system can exacerbate inequitable political or economic situations. Disparate treatment by authorities can undermine non-dominant groups’ confidence that the system will redress grievances, leaving no alternative to violence. For example, where access to and transparency of the judicial system is limited to those who speak an official language, ethnic groups who speak a different language are left outside the legal system.
A functioning judicial/ legal system is important for sustained democracy. In the aftermath of many conflict situations, dealing effectively with the injustices of the past is critical to breaking the culture of impunity that provides incentives for violence.
Achieving ethnic balance within a country's legal system can take years because of the dearth of appropriate individuals to be recruited and trained for such positions, especially after a conflict in which large numbers of intellectuals from under-represented ethnic groups have been killed and others were denied access to educational system.
As far as governmental action is concerned, a future Transitional Government should immediately set up a Legal System Review Committee. This could have a mandate with limited duration. The objective of the Committee will be to identify precisely the nature of judicial deficiencies and to formulate specific, well-grounded proposals for improvement and reform. The Committee should provide opportunity for informed public debate on the legal and justice system.
3.1 Structural Reform
The overall intention is to review and change the rules governing the legal system, usually reflected in constitutional provisions and laws. Structural reform is generally a preliminary step in rule of law development, requiring follow-on access-creation and/or legal system strengthening. The transformation of the judiciary and the legal profession is paramount. Justice can neither be done nor seen to be done until the judges and lawyers are far more representative of the community as a whole, far more sensitive in their function, and far accessible to the population at large. This means the courts must be truly Sudanese, so that every body in the country feels comfortable in them, with the result that persons on trial feel they are being judged by their countrymen and not by their oppressors.
The two-tier system of Sharia and Civil Divisions in the judiciary will need to be maintained. Attempts to Islamise the judiciary is contrary to its independence in the multi-religious and multi-cultural state like Sudan.
3.2 Access to the Judiciary and the Legal Profession
Access to the judiciary as an institution needs to be reviewed in every respect in Sudan. Currently the marginalised areas and especially Southern Sudan are under-represented among the ranks of lawyers and judges. This under-representation has its roots in the procedures for qualifying to law schools in the country. Passing Arabic language in the Sudan School Certificate of Education is one of the pre-conditions of acceptance to any law school in Sudan. Passing Arabic puts many non-Arab native speakers in Sudan, especially Southern Sudanese who are mostly from the English pattern of schooling, at a severe disadvantage. Even those who slip through the Sudan Certificate net and make it to the law school with a pass in Arabic, will face a tremendous challenge in passing the parts of the course concerned with Islamic law every year. Sharia is a compulsory subject in the law school and is taught in classical Arabic. Unsurprisingly, few Southerners graduate from law school in Sudan, resulting in under-representation in the legal profession in general and the judiciary in particular.
We recommend that a pass in Arabic as a subject should no longer be a precondition for entry to law school. Moreover, at the law school Sharia law and Islamic jurisprudence should be optional to non-Muslims after the preliminary class and should be taught in English for non-Arabic-speaking students. Such reform will help create equal opportunity and access to the Law School.
The legal profession itself should be opened up. Extensive programmes of affirmative action, preferably of a voluntary kind, will needed to correct the enormous imbalance whereby at present less than 10% of the legal practitioners are Southerners and westerners. As well as abolishing the Arabic language requirement, relaxing the obstacles to entering the profession will need action to assist law graduates from marginalised areas in obtaining offices and the basic capital needed to establish a private practice.
The Sudan judiciary still retains the Sharia circuit, with judges mostly graduating from Islamic law schools in Sudan or abroad. The Sharia circuit is charged with administration of the Muslim personal law of marriage, divorce, inheritance etc. These courts are dominated by Islamic law school graduates. There has never been any attempt to recruit non-Muslim judges into the Sharia circuit. Experience has shown that despite the good knowledge of non-Muslim judges of Islamic jurisprudence, Muslim litigants will prefer their disputes settled by a Muslim judge even if they have to travel far distances to obtain this.
With Nimeri's drive to Islamise the judiciary, Sharia court judges were given power to settle criminal and ordinary civil cases. Nimeri staffed the so-called Prompt Justice Courts with them in 1983 and it severely disrupted the professionalism, ethics and ethnic/religious balance of Sudan's judiciary. It was some of these judges and laymen who sentenced Ustaz Mohamoud Mohamed Taha to death without due process in the infamous apostasy case.
For equal opportunity, affirmative action in providing access to the law schools is a prerequisite in creating a representative judiciary in Sudan.
3.3 Professionalism and Independence of the Judiciary
From Independence in 1956 until the National Islamic coup, Sudan had a professional and independent judiciary, despite occasional interference by successive governments. But under the current National Islamic Front regime, the legal profession has been devastated. Far from being traditionally fearless, the organised profession has shown itself to be notably fearful, or even worse, indifferent in the face of repeated invasions by the executive of basic rights and liberties relevant to due process— one thinks of areas where legal and judicial functioning are directly affected, such as declarations of States of Emergency which go on for years, detention without trial, the bringing of witnesses to court straight from months of solitary confinement, the denial of accesses of detained to lawyers, and the direct or indirect ouster of judicial review.
To guarantee the independence of the judiciary the process of appointment of judges needs review. Currently the judges, including the Chief Justice, are appointed and dismissed at will by the Head of State. In absence of guarantees regarding the appointment and the tenure of office for the judges the judiciary has become a compliant one. This in turn has affected its performance to extent that the courts are too intimidated to entertain constitutional disputes against the government. Judges who, in the past were immune from arrest except in some very specific circumstances, are being arrested while on the bench and in the sight of litigants. The reign of terror applied on judges and judiciary by the National Islamic Government have made judges frightened to extent that they slavishly implemented the most cruel laws and condoned the most inhumane practices by the security organs. The legal profession has to provide leadership ready to challenge arbitrary and unconstitutional actions, whatsoever their source.
The Transitional Government will have to face the challenge of rehabilitating the judiciary from the unprecedented damage and humiliation it has experienced under the National Islamic Front regime. This is a task for the government, using suitable legislation and recruitment procedures.
It is essential that judicial activism and community involvement should be re-established during the transition. This is a task for the lawyers themselves and especially for Sudan’s human rights organisations.
3.4 Access to Justice and the Location of Courts
Improving access for the general public to the legal system will be a fundamental aspect of Sudan's judicial reform. Access creation encompasses efforts to make legal services more available and affordable, especially to those who lack the means and knowledge for seeking resolution of disputes or redressing of grievances when their rights have been violated. The law should be liberated from being a domain of lawyers and made simple for the people to understand.
An important area of reform to improve access to justice includes addressing the problem of the language barrier. In Sudanese courts the language of litigation is Arabic. Though the judiciary endeavours to provide translators this language barrier puts non-Arabic speakers at disadvantage. With other languages used more widely, not only will the judiciary cease to be an Arab preserve, it will lose its male-only character, because in may rural areas it is only men who are able to use Arabic. With the development of a new language policy, non- Arab litigants should be assured of the right to have proceedings conducted in the language which they feel most comfortable. The involvement of lay assessors and possibly juries will ensure that the gap between litigants and adjudicators is diminished.
3.5 African Customary Law and Judicial Reform
Far from being a fundamental part of the legal system, the African component has been relegated to the margin of the law in Sudan, sometimes tolerated and at worst manipulated to justify the application of Shari’a Code in the country.
Despite the recognition of customs as one of the sources of law in Sudan, especially in the area of family law, yet customary African family law has been relegated to second-class status in Sudan’s legal system and thereby left mostly to the indigenous courts commonly known as the Native Courts. The very name ‘Native Courts’, which is a colonial legacy, indicates clearly how the customs are held in contempt by the Sudanese rulers. Judges resort to it in rare cases when faced with no option but to apply it. Moreover, its application is subject to conditions namely justice, equity and good conscience. (Section 5 Civil Justice Act 1983). This is a highly subjective test that leaves the custom at the mercy of judges and can easily lead to miscarriages of justice even in cases of marriage. This happens mainly due to judges’ ignorance of the customs of the parties involved, which some of them do not even bother to learn.
It is important to note that African customs in Sudan concerns not only marriage and divorce but a wide range of customary laws including crime and tort. There is an urgent need for an African Customary Law Project, undertaken with a view to ascertain, codify and develop the customary laws in Sudan. The Transitional Government should embark on such a project, including the codification of various customary laws in the country. This may lead to evolution of a common law for the whole country.
There is no legitimacy to the argument that non-Arabs in Sudan have no legal contribution to the body of laws in the country. Others who argue that the choice of laws should be between Islamic laws and western laws should provide equal opportunity for the development of African customary laws in Sudan. As for those who ideologically argue that Sharia of Islamic laws cannot be reconciled with the non-Muslim customary laws, these people will have to reconcile themselves with the split of the country. Law in Sudan has been and shall remain the acid test for the unity or partition of the country.
The question of access of the people to the courts is a fundamental. It is related to the question of simplifying the laws to popularise them and making them better understood, and to the criteria for and recruitment of the judges and lawyers in general. It is also related to the question of the functioning and procedure of the courts. In other words, the question goes well beyond the problems of providing proper legal aid.
Sudan needs public interest advocacy organisations that will take up public interest cases and educate the public as to their legal rights. This is an areas that non-governmental organisations should address, covering issues ranging from personal liberties to environmental rights. Another goal of these organisations should also be the creation of popularly-accessible justice where there is mutual access between the people and the courts. This in turn creates respect by the people for judicial decisions and avoids the current situation where injustice is seen as individual affair rather than a communal one. With peoples’ awareness of their rights and respect for a representative judiciary the day may not be far away when the judiciary will be able to declare a military take-over unconstitutional.
3.6 A Gender Policy
The judiciary in Sudan is dominated by men. Among the relatively few women who succeed in qualifying as law graduates and obtain positions in the profession, the ethnic imbalance against marginalised areas and the South is even greater than among male lawyers.
At all levels of the judicial profession, starting from secondary school level where students are considering their future careers, there is a need for a affirmative action in favour of female law professionals.
Unless more women become lawyers and judges, the half of the Sudanese population who are female to use the courts to obtain justice will stay reluctant to use the courts and will be vulnerable to discrimination in the application of the law.
3.7 Practical Measures
There are a number of practical measures that can be introduced, resources permitting, to make the operation of the judicial system quicker and more efficient. This is not only a matter of efficiency but of fairness. Delays, hiccups and administrative mistakes in court proceedings (for example losing papers) can lead to miscarriages of justice and a lack of popular confidence in the legal system.
Judicial and legal reform should involve introduction of new systems of court administration such as improved record-keeping, budget and personnel management. It can also include acquiring modern technology, such as computers for case-tracking and designing practical pre-entry and post-entry training programmes for judges, court staff, and lawyers.
Implementing these measures should be a task for the Legal Reform Committee.
3.8 Obstacles to Legal Reforms
Reform measures emphasising legal system strengthening and structural reform oriented towards improving legal service provision can be hampered by indifference or by the opposition from political elite and the judicial bureaucracy. Structural reform initiatives can require constitutional changes or legislative enactments; this is time-consuming and likely to encounter opposition from entrenched political interests.
Without pressure for accountability and enforcement and governmental political will to carry through such reforms, efforts in judicial structural reform will be diluted and their impact undercut. Continuous public pressure can influence this political will and help consolidate structural reforms. Sudan need to reform the existing judiciary than establishing a new one. The work of NGOs for legal reform is essential: they may become a crucial strong force for reform. However, it is difficult to envisage resistance to the principle of judicial reform during the transition in Sudan, as it is universally recognised that the current situation is unacceptable. Some, however, will consider the issue politically sensitive. The agenda for judicial reform will require clear and specific agreements over programme contents among the various Sudanese political parties and organisations.
4. LEGAL AID AND PUBLIC LITIGATION ADVOCACY
Public interest legal organisations and community legal services will be necessary in a future democratic Sudan. Conditions must be created for the creation and expansion of these organisations and services. It is not the intention of this paper to discuss all these groups in detail but three areas in this category deserve emphasis. There are legal aid, an Ombudsman’s office, and legal advocacy NGOs.
4.1 Legal Aid
The availability of legal aid is essential to the fair functioning of any judicial system. Its provision can be of special importance in family law matters. This is particularly the case for those parties, mainly women, whose financial position is weak. In Sudan there were attempts to establish a legal aid unit at the Attorney General’s Chambers in the mid-1970s. Unfortunately, due to both lack of funding and political will the scheme was abandoned.
It will be essential to establish a sustainable legal aid scheme during the transition. There are different kinds of legal aid:
Concerning administration of the proposed legal aid scheme, it is suggested that it should be administered by a Legal Aid Board established at the Attorney General’s Chambers. The Board will have the sole responsibility of administering the Scheme.
The Ombudsman Committee of the International Bar Association has defined the Ombudsman as:
An Office provided for by the constitution or by action of the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees, or who acts on his own motion, and who has the power to investigate, recommend corrective action and issue reports.
Although this definition is not universally accepted, it nevertheless illustrates what an Ombudsman generally is. Many countries accepted the idea of an Ombudsman out of a desire to improve protection of the individual against acts of administrative authorities. An Ombudsman is intended to complement the role of the courts in safeguarding individual liberty against abuses and excesses of power by administrative authorities, especially where there are no administrative courts. An Ombudsman would serve an important role in addressing mal-administration as it affected citizens. Sudan’s legal system should explore the possibility of the introduction of Ombudsman in the country to minimise executive excesses rampant during authoritarian regimes.
Generally, the main task of the Ombudsman should be to investigate complaints against ministers, civil servants and other persons in government service. This jurisdiction extends to the local government councils, especially where there is a right of appeal to government authority. The Ombudsman is to keep him/herself informed as to whether the institutions mentioned are guilty of errors or neglect in the performance of their duties. In Sudan the Ombudsman should be appointed by Parliament. He/she should follow principles laid down by Parliament though he /she is independent of the Parliament in performing his /her duties. Complaints of a decision which may be appealed to a higher administrative authority cannot be submitted to the Ombudsman, until a decision has been made by that authority.
The advantages of the Ombudsman are basically the following:
The Ombudsman has additional powers of ensuring redress of what he/she considers to be legitimate grievances though he/she has no powers to quash or order an administrative decision to be quashed or amended. This helps to reduce public interest litigation as citizens affected by an executive decision can resort to this intermediate measure.
4.3 Legal Advocacy NGOs
Legal advocacy NGOs will have an important role in play in establishing the rule of law and a legal system that conforms to the citizens’ needs and respects their rights. Legal advocacy NGOs can be effective in empowering communities to take action to defend their rights, reducing their passivity and dependency by targeting specific issues and groups seeking through legal means to reform structures perpetuating poverty and oppression. Educating citizens about the legal system and their rights to bring legal complaints. Sudan undoubtedly is in need of legal advocacy to strengthen democratise institutions and the civil society.
It goes without saying that the Sudan Bar Association should have its independence re-affirmed and upheld.
5. POLICE REFORM
Police reform should go hand in hand with judicial reform in Sudan as there is no shred of doubt that police under National Islamic Front government contributed to unfairness and human rights abuses in the country. Professionalism in police force is a critical component of a broadly participatory, genuinely democratic political system as it enhances the impartial judiciary. It also strengthens governmental legitimacy, office-holder accountability to the public, and overall political and economic development.
The National Islamic Front regime, after dismantling the former civilian police, established police authorities linked closely with the military. This linkage is a potential danger to the new democracy during the transition as such police linked with the military tend to view free political expression and organisation that underlie democratic politics as a threat to the state. This results in repression and jeopardises a new democracy's capacity to channel dissent into the political system instead of into violent conflict. Separating internal security institutions completely from national defence institutions is an essential step for preventing and mitigating violent conflict and for maintaining democracy.
Under a future Transitional Government, there are several important steps that must be taken immediately with regard to the police. First, all various existing police forces created by the National Islamic Front regime must be unified in one civilian police force. A separate military police force will be required but this should have no role in policing ordinary citizens. Second, those police officers suspected of involvement in human rights abuses and corruption must be suspended pending investigation. Third, measures must be taken to incorporate members of under-represented ethnic and political groups into the unified civilian police force.
The way the police enforce law and order influences how citizens view justice and the state's legitimacy. A police force which fairly protects people and their property, helps people in times of emergency, abides by the rule of law and uses violence as a last resort will reduce unrest, lead to fewer riots and lessen the chance that malcontents can stir up and organise subversion or insurrection. It is therefore not sufficient simply to establish a unified civilian police force. There are certain principles and codes of professional practice that should be instilled in policemen.
The Transitional Government should set up a new Civil Police Commission. This in turn should have the mandate and responsibility to to create a professional police force which is accountable, law-abiding, and closely integrated into civilian community. It needs to be adequately trained, equipped , rewarded and depoliticised with sole duty of responding to community needs. This will involve recruiting new policemen and retraining many of those who are already in the police force. Many current serving police officers will be found unsuitable for civilian policing and will have to be discharged.
It is important to bear in mind that the civilian police force should not be regarded as a dumping ground for demobilised former combatants. The qualities that make a good guerrilla fighter or soldier are very different from the qualities demanded by a civilian police force, so it would be inadvisable to recruit large numbers of demobilised combatants without individual screening as to their personal qualities and backgrounds.
Sudan’s new civilian Police should adopt the following International Principles:
1. United Nations Basic Principles on the Use of Force and Fire Arms by Law Enforcement Officials.
These principles were adopted by the Eighth United Nations Congress on the prevention of crime and the treatment of offenders in Havana, Cuba, on 7 September 1990. The United Nations General Assembly consequently welcomed the principles in its Resolution 45/121 of 14 December 1990 and invited all governments to be guided by them in formulation of appropriate legislation and practice and make efforts to ensure their implementation.
The general provisions of these principles are that governments and law enforcement agencies shall implement rules and regulations on the use of force and firearms by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.
2. United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Execution.
Governments shall prohibit by law all extra legal, arbitrary and summary executions and shall ensure that such executions are recognised as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. Exceptional circumstances including a state of war threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions.
Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflicts, excessive or illegal use of power by public a official or any other person acting in a official capacity or a person acting at the instigation or with the consent or acquiescence of such person, and in situations in which death occurs in custody. This prohibition shall prevail over decrees issued by governmental authority.
There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances.
Governments shall maintain investigative offices and procedures to undertake such inquiries. The purpose of the investigation shall determine the cause, manner and time of death, the responsible, and any other adequate autopsy, collection and analysis of all physical and documentary evidence, and witness.
The investigation shall distinguish between natural death, accidental death, suicide and homicide.
Governments shall ensure that the persons identified by the investigation as having participated in extra-legal, arbitrary and summary executions in any territory under their jurisdiction are brought to justice.
Governments shall either bring such persons to justice or help extradite such persons to other countries wishing to exercise jurisdiction. This principle shall apply irrespective of who and where the perpetrators or the victims are, there nationalities or where the offence was committed.
An order from a superior officer or a public authority may not be invoked as a justification for extra-legal, arbitrary and summary executions. Superiors, officers or other public officials may be responsible for acts committed by officials under their hierarchical authority. Under no circumstances, including a state of emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary and summary executions.
Fair and adequate compensation within a reasonable period of time is essential to the families and dependants of victims of extra-legal, arbitrary and summary executions.
3. United Nations Code of Conduct For Law Enforcement officers.
Adopted by General Assembly Resolution 34/169 of 17 December 1979.
Law enforcement officers shall at all times fulfil the duty imposed on them by the law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by the profession.
In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold human rights of persons.
It will be important for the members of Sudan’s new Police force to be retrained and instructed in these laws. In addition, it would be helpful to prepare a handbook on police procedures, behaviour and rules. This should be provided to all members of the Police and also should be accessible for members of the public.
In Sudan there has never existed a clear process of complaint against the Police apart from petitioning the courts. The deficiency of this process has been the connivance of the police to cover up their guilty colleagues. There is need to establish Police Complaint Board or Commission.
6. PRISON REFORM
Like many African countries, Sudan still looks to the prisons not as institutions of reform but centres of punishment and humiliation. The prison laws have hardly changed since independence in 1956. Prison conditions in Sudanese prisons are deplorable to say the least. Congestion, unhealthy environment, disease, lack of recreation facilities and malnourishment are among the few numerous problems faced by prisoners in Sudan. Women prisoners, especially those with young children, face additional problems of sexual abuse and the children’s deprivation of their rights. Sadly, prisons in Sudan have become centres of criminal learning and experience that make non-habitual criminals smarter in committing crimes once released.
It is to be stressed that prison reform remains an important part of the legal reform process in the country.
The Transitional Government should review the existing prison laws. The objective of such a review should focus on the creation of an effective, secure and humane prison system committed to rehabilitation.
Providing more humane treatment to women prisoners and young convicts should be priorities. Some specific measures should include the right of a woman prisoner to accompany her child to hospital if the child is sick.
A major obstacle to effective prison reform are the twin problems of overcrowding and lack of resources.
The Transitional Government in Sudan is unlikely to have the resources to enlarge prison facilities quickly. In any case, building new prisons to a good standard will take time. The problem of overcrowding may be compounded in the transitional period by the detention of former NIF members and security officials on suspicion of having committed grave human rights abuses.
Easing the congestion in the prisons will be a priority. The simplest measure is to tackle the issue of remand prisoners who are awaiting trial, by making greater use of release on bail. This step is related to principle of criminal accountability. A second step is to find ways of punishing women convicts with young children that does not involve the incarceration of the children (who are of course innocent) nor the separation of the mother from her children.
More widely, a method must be adopted to ensure that those who are being prosecuted remain within that number which the judicial system can reasonably handle. Meanwhile, there is no room for arbitrary speedy justice, as currently implemented by the Public Order Courts, as justice hurried is not justice at all.
7. CONCLUSION AND RECOMMENDATIONS
Both judicial and legal reform are of primary importance to creating a democratic and lawful society in Sudan and should be elevated in Sudan's political agenda now and during the transition.
New judicial and law enforcement institutions will not be created overnight. It is important that the Sudanese political parties and general public (and also international human rights organisations who will be scrutinising very closely) do not have unrealistically high expectations of what can be achieved in the first months of a Transitional Government.
In the immediate term, a number of NIF-appointed judges will have to be removed or suspended because they cannot be considered independent. It may be difficult to replace them all without delay. Certain types of courts that are incompatible with due process and respect for human rights will have to be abolished. The police force will be unable to continue in its present manner, but cannot be replaced by a new and better system overnight. Therefore, the judicial system may in fact function less smoothly in the first months of a Transitional Government than beforehand under the NIF, which has established an unacceptable but functioning system. In the short term, there will be more delays in the judicial process, and doubtless some confusion.
A necessary component of the judicial reform process is for the legislative and judicial branches of power to become independent from executive, and their powers strengthened. The executive on the other hand must respect the legislature and the judiciary with express commitment to the rule of law. Experience has shown that mere provisions in a Constitution, guaranteeing security of tenure for judges, are meaningless in the face of a regime that does not respect the rule of law.
The Transitional Government will be duty-bound to create an impartial, effective, and well-organised judicial system: a sustainable system of justice and law enforcement providing equal treatment under the law and wide popular access to justice. Judicial reform must eventually lead to the enhancement of the legal system's capabilities to investigate and process legal cases speedily and fairly. It should also develop administrative and management capabilities of law enforcement agencies. This reform however, should be preceded by the government providing an impartial political climate for opposition parties, political dissenters, and mass organisations outside government control.
Judicial independence under the National Islamic Front government has been very severely compromised. With a multi-party system during the transition, the judiciary must adapt itself to the new environment. It must prove that it has recovered from the era of dictatorship when it allowed the executive to get away with serious violations of fundamental rights. The coming transition in Sudan should be a period of redemption for the judiciary. Hence, the following recommendations are urgent tasks to be tackled by the new government regarding the judiciary and legal reform:
The above recommendations and more are urgently needed during the Transitional Government to inspire maximum confidence in the public that the judiciary and the legal system shall respect all political parties, diverse interests and transcend party line. Its guiding principle must be constitutionalism, the rule of law, equality of persons and the need to build a true pluralistic democracy in Sudan.
Alongside the responsibilities of the Transitional Government (and the parties that comprise it) there is a big responsibility on human rights organisations, legal NGOs and the citizens of Sudan themselves to organise to protect their rights. They must engage in public education about the rights of citizens and the rule of law, and in building strong civil coalitions that can prove an effective defence against transgressions of their rights.