COMMITTEE OF THE CIVIL PROJECT
ISSUE PAPER F-1
Freedom of Association
This issue paper will address the human rights questions that arise in the light of the current Sudan Government laws on political parties, the NDA draft law on political parties, the SPLM position on political parties in ‘New Sudan’, and related issues concerning trade unions, professional associations, citizens’ associations, NGOs etc.
Government of Sudan’s Laws on Political Parties
The Government of Sudan has claimed to have liberalised the political life of the country, allowing free expression and free association. In 1999 this was enacted under the banner of ‘tawali,’ and in 2000 complete freedom of association for political parties was proclaimed. Both the 1999 Tawali laws and the March 2000 party law need close scrutiny.
The March 2000 Party Law
The new party law promulgated in March 2000 permits political parties to function inside Sudan with no need for registration. However, if these parties want to participate in any general or local elections, they have to register under the conditions set down in the tawali law. Hence it can be said that the new law has recognised the existence of the parties that have been active in a clandestine or semi-clandestine way, sometimes entering into an open public political arena and addressing the government through memoranda. But if these parties want to participate in any formal elections they must submit to the tawali set of rules. In other words, the political establishment remains restricted to those who conform to the tawali, while those who dispute the principles of tawali are denied the right to contest.
The Tawali Laws
The tawali system was not abolished by the 2000 party law. Most of the jurisprudence of tawali remains on the statute books. In fact the March 2000 law reinforced the primacy of tawali when it comes to elections.
In reality the tawali only allows a very limited right of association—confined to those organisations that support the project for an Islamic State of the current government, it is deeply ambiguous, and has various fundamental and other flaws.
The law governing the ‘tawali’ was issued in accordance with Article 26 of the Salvation Constitution, which stipulated that:
The word ‘tawali’ does not have a clear meaning. Its literal meaning is ‘continuous succession’, but exactly how that should be interpreted is not at all clear. It is an ambiguous term that has not been used before in either Sudanese political literature or in previous constitutions, nor in any modern Arab or Islamic constitutions. The UN Human Rights Special Rapporteur for Sudan noted in his report, ‘The term tawali is extremely ambiguous, at no point is the term defined, either in the constitution or in the newly enacted legislation.’
The word ‘tawali’ does not mean ‘the right to organise’ or ‘freedom of assembly’ or anything similar. However, Article 26 uses the word ‘organisation’ when it refers to cultural, social, economic, professional or trade union activities. In the second part of the Article, however, the phrase ‘political tawali’ (al tawali al siyasi) is used. This implies that there is some form of distinction between ‘political’ and ‘non-political’ tawali. This only adds to the confusion. Extreme caution should therefore be used when trying to define the word ‘tawali’ or translate it into English.
Many people believe that the ambiguity and confusion around the word ‘tawali’ is deliberate. The ambiguity can allow the Sudan Government to take arbitrary action to restrict freedom of association or freedom of expression, but still maintain that it is acting in accordance with the spirit of tawali.
The ambiguity is reflected in the law for organising tawali, which repeats the content of Article 26(2) and goes on to detail articles that assure that tawali cannot mean the right of establishing multiple political parties that practice the right of freedom of association.
Article 2 describes ‘the organisation’ as ‘a group organising political tawali, togetherness and voluntary association for political expression for the purposes of campaigning and competing in elections to maintain public authority, in accordance with the law.’ Neither the Constitution nor the tawali law use the word ‘party’ at all. The concept of ‘organisation’ seems to fall short of permitting political parties. The fact that some organisations have been registered with the name ‘party’ does not make them parties under the law: the leaders of these organisations may want to establish political parties, but according to the law they have only established ‘organisations’, irrespective of the name.
The Sudan Government has started to try to explain the meaning of ‘tawali’, using different forums and gatherings. It has used different linguistic interpretations aimed at establishing its origin in Arabic philosophy, claiming that the term is no different from political pluralism. However, if the term really does mean multi-party democracy and freedom of association, why did not the government use those terms in the constitution? The National Committee for Drafting the Constitution—set up by the Sudan Government itself—recommended respect for freedom of association along these lines. Its draft Article 41 read:
People have the right to organise themselves for political, cultural, trade union and academic purposes, and that should be done through proper legal regulations.
This article echoed all previous Sudanese constitutions, save the 1973 Constitution that reserved political organisation to a single party, the Sudan Socialist Union. By specifying the right to organise, this draft is superior to the final version—it is much clearer and upholds a higher standard of human rights. The fact that the recommendation of the National Committee for Drafting the Constitution was overruled suggests that a partisan political agenda was at work.
The Steering Committee believes that any terms in a national constitution—and particularly any terms as important as ‘tawali’—must be strictly defined, or they should not be used at all. Any term used in a constitution must be easily understood by ordinary citizens. A term subject to controversy among scholars of philosophy is not a suitable foundation for a basic constitutional principle.
The tawali law, Article 3(2) states that ‘every organisation should abide, in its political actions, by the principles and rules of the constitution.’ Therefore we must investigate what the Sudan Government means by tawali more closely by looking at the Constitution as a whole.
Article 139(a) of the Constitution states that Sharia is the first and core element of the Constitution and Article 139(b) states that political organisations should be established in accordance with tawali.
Throughout the Constitution, it is clear that Sharia is the primary and constant element, in addition to some constitutional rules. Article 4 states that law derives from God, and sovereignty is for the people, the worshippers of God. Article 65 makes Sharia the first source of legislation. Article 7 states that Jihad for defending the country is a duty for everybody. Article 18 states that people in government institutions and the private sector should devote their work to the worship of God. Article 10 states that zakat should be paid by every citizen, whether Moslem or non-Moslem.
It is clear that the basic constitutional rules have established a theological Islamic state. It follows that when organisations registered under the tawali are asked to commit themselves to the rules and regulations of tawali, this means acting in conformity with a set of clear and precise political prescriptions. In effect, all tawali organisations become part of the National Congress, and subscribe to the government’s ‘civilisation project’ (el mashru’ el hadhari).
In the political philosophy of Hassan al Turabi, the Islamic state necessarily differentiates between people on the basis of religion and language. According to the law, a tawali organisation cannot distinguish between people on the basis of colour of skin, ethnic origin, inheritance, gender, class or locality. Missing from this list are religion, language and culture. It is therefore implicit that tawali organisations can organise on the basis of religion, language and culture.
The tawali law is careful to block all the means whereby a tawali organisation might deviate from the principles of the Islamic State. At the end of Article 3 of the Constitution, it is stated:
An organisation should not look for any ways or means in order to change the principles of the Constitution or to stop them from being conveyed, unless through ways and procedures agreed upon by the Constitution and law.
The only procedure for changing the Constitution is laid down in Article 139, that specifies means of amendment and gives authority to the National Assembly and the Head of State, and if necessary a referendum if the issue is about basic principles.
The implication of this is that no party is allowed to call, even peacefully, for abolishing the Islamic State, or to stop the Sharia being the prime source of legislation, or to abolish the definition of tawali in the Constitution.
This article also prohibits pluralism of opinions, programmes, plans and policies. Instead, all tawali organisations are obliged to fit the same mould and support the existing Constitution, tawali law and Islamic State. It is evident that this will only permit the free expression of pro-NIF political views, while critical voices are outlawed.
Another, related shortcoming of the tawali law is Article 7, which gives the task of registering tawali organisations to a registrar appointed by the Head of State with the approval of the National Assembly. This leaves the parties at the mercy of the executive decisions of the registrar, who is a political appointee. Article 9 gives the registrar the right to investigate whether an applicant organisation has fulfilled the conditions of registration, or not. If the registrar decides there is a shortcoming, he can refuse registration. He can also cancel the registration altogether, if he is convinced that the organisation did not show adequate commitment to the Constitution and the law, or the applicants did not fulfil the necessary characteristics of those who have the right to register, or there was something incorrect in the basic rules of the applicant organisation. Finally, according to Article 10, the registrar is the person who has the right to decide against any appeal concerning the registration.
A final element worthy of attention concerns financing of tawali organisations, in the light of the fact that much of the NIF’s party finance is obtained from external sources. In almost every democratic system in the world there are major restrictions on foreign organisations and individuals financing domestic political organisations. However the tawali law does not prevent or limit any registered organisation from obtaining funds from foreigners. This is cleverly presented in Article 12(1), which states that ‘An organisation can obtain financial resources from any source inside Sudan.’ This leaves open the option for a foreign financier to first transfer money to an individual, company or institution inside Sudan, and then legitimately pay it to a tawali organisation.
It can be seen that the tawali is deeply and fundamentally flawed. It has nothing that guarantees basic freedoms of association and expression. In fact it places tight limits on the ability to organise and is designed to protect and push forward the NIF project of an Islamic State.
The Sudan Government is signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and is therefore bound by commitments to uphold the rights of freedom of association and freedom of expression. Article 22/1 of this Covenant states, ‘Every individual has the right of associating with others, including the right of establishing trade unions and joining them for the protection of his or her interests.’ The Sudanese constitution should not define any civil and political rights that circumscribe these fundamental rights. The Committee of the Civil Project firmly believes that the Government of Sudan is obliged to grant full rights of political organisation.
NDA’s Draft Law on Political Parties
Sudan has never experienced a law to regulate and restrict the political parties. During parliamentary periods, Sudanese parties enjoyed wide freedom, while during military regimes they were subjected to a total ban. The parliamentary government of 1965-69 enacted a ban on the Sudan Communist Party, but this did not prevent the election of its secretary general to the Constituent Assembly in 1967. The main parties were noticeable in the resistance each of Sudan’s military regimes, thereby retaining their organisational capacities. A few months after the fall of the first dictatorship in 1964, after a six-year ban, the parties were able to contest nationwide general elections. A year after the fall of the second dictatorship in 1985, they were again able to organise for elections. There is little doubt that the major political parties in Sudan would be able to organise for elections within a few months of the present, given the right political circumstances.
The situation in Sudan therefore contrasts with that in countries like Egypt. In Egypt, political parties were banned for thirty years, and had actually disappeared with the exceptions of radical left and right wing organisations, which meant that the limited freedom brought by the parties law in the 1970s was seen as a step forward. In Sudan, however, restricting the freedom of forming political parties will be a step backward and it will not work. The enactment of the ‘Tawali’ law by the government and the drafting of parties law by the NDA, though very different in terms of the extent and nature of the restriction, both spring from the same presumption that the State has the final say in the right of individuals to form political parties. Both the ‘Tawali’ and the NDA Party Law presume that freedom of the association is the exception and the restrictions are the rule.
Historically, Sudanese parties’ existence and activities have been controlled by a much more effective law than any government legislation—namely the law of natural political selection. According to this law, the parties that come into existence and prosper are those that are able to appeal to a wide constituency, gaining a significant measure of popular support. This was clearly illustrated by the events following the Popular Uprising of April 1985 and the subsequent lifting of restrictions on political activity.
Between the Popular Uprising and the formation of the transitional government, the Trade Unions Alliance/National Alliance represented a major power in Sudan alongside the generals in the Transitional Military Council. Those unions and parties that had not joined the Alliance already began to register with the Alliance which was based in the premises of Khartoum University staff club. These parties and the unions were trying to assert that they had participated in Uprising itself and some were convinced that was the right way to gain legitimacy. The Alliance was encouraged to register as many organisations as possible. Meanwhile the Islamists attempted to form their own alliance based in the residence of the Teachers’ Union. During this period many new political parties appeared, including the Party of Pleasure. At the time, several of the major parties called for regulating political parties, and the issuing of a law on parties. However, in fact, the law of the natural political selection was the only law in force and it proved both effective and sufficient. The Party of Pleasure remained as joke. A total of 46 parties were formed but only ten actually succeeded in returning members of parliament. Six of these parties formed a bloc—the Union of Sudan African Parties—which acted in a way similar to a single party in parliament. The majority disappeared from the political scene after failing to have MPs elected.
The NDA’s draft Law on Political Parties has to be seen in this historical context. The draft law is one of many prepared by the NDA, with the anticipation that it will take effect once the NDA takes power in Sudan. The NDA is principally composed of political parties which existed before the 1989 coup and were active with no need for any act to organise or regulate them. Those parties same resisted the ban imposed on them by three military governments. Therefore the drafting of the parties law is in fact a step backward from the legitimacy that these parties had upheld as one of the enduring principles of Sudanese political life.
Several sections of the draft law place restrictions on the right of free association and represent a retreat from the high standard of political pluralism formerly upheld in Sudan.
It could be argued that the draft law guarantees the commitment of the political parties to accountability, transparency and internal democracy. The Committee for the Civil Project argues that the accountability of the party’s leadership, the transparency of its financial dealings and the internal democracy within a given party is the responsibility of the party’s membership. If the membership is not capable of defending it, no set of laws or regulations will make it happen. In other words, all provisions of law and regulations can be manipulated by the leaders if the basic membership of the party is too weak and submissive for reasons of sectarian and ethnic loyalties, revolutionary discipline or any other reason.
However appropriate regulations for parties’ transparency can be introduced by a parliamentary committee that imposes certain accountability on the parties that have representatives in parliament. It could also be obligatory for parties that, when their membership exceeds a certain number, to register as a non-profit company and be subjected to the general conditions of companies, which of course include submitting accounts. Privileges could be confined to the parties registered as companies or those who have parliamentary representation.
‘Civil Society’ Organisations
In any modern, democratic country, ‘civil society’ is the foundation of a truly pluralistic and participatory political society. This includes NGOs, community organisations, trade unions and professional associations, independent newspapers, human rights organisations, and other independent organisations. The independent media has been discussed in issue paper C2 and will not be analysed further here.
The multiplicity of forms of organisation allows citizens to mobilise to promote their rights and interests, and to protect themselves from the arbitrary actions of government. In the last ten years, since the demise of Communism, civil society has flourished to an unprecedented degree across the world. In Eastern Europe, Asia, the Middle East and Africa, there has been a massive expansion of NGOs, human rights organisations, independent newspapers, professional organisations, community organisations, etc. The growth of telecommunications, especially satellite TV and the internet, have made possible new forms of transmission of information and organisation. States can no longer enforce the same forms of control and censorship as in earlier decades.
Sudan has one of the richest traditions of civil society organisation of any country in Africa or the Middle East. Even during colonial days, there were strong and independent social and political organisations in the country—notably the Ansar and Khatmiya. After independence, trade unions and professional organisations have played vital roles in the struggle for peace, human rights and democracy, most notably in the non-violent civil uprisings that brought down military regimes in 1964 and 1985. The future of human rights and democracy in Sudan will be closely tied in with the vigour and independence of civil society organisations. The freedom to organise will also be essential to Sudan’s future economic prosperity. Community organisations and NGOs will play a leading role in the struggle to overcome poverty.
NGOs and Community Organisations under the NIF
The Government of Sudan has sought alternative forms of organisation to supplant political parties, trade unions and NGOs. Most of these are based on trying to build up alternative power structures, appealing to Islam and tribal identity, and also taking away responsibility for basic services from the state. This has led to a range of new community organisations and NGOs that exist under NIF. However, only certain sorts of organisations have been allowed to exist.
Unlimited freedom of association would permit all organisations established under the NIF, including the Da’awa-ist organisations, to continue their activities. Granting freedom of association to community organisations established under ‘return to the roots’ programmes should pose no problems. But allowing some of the major Da’awa-ist agencies to function, with their existing sources of funding and close links to the security services and Jihadist ideology, could pose major problems.
NGO Policy Options
The main challenge for NGO policy in a democratic Sudan is how to enable citizens to organise freely, to fulfil their potential and exercise their rights, while preventing intolerant or chauvinistic organisations from taking a leading role.
One option would be to prohibit the formation of organisations based on religious or ethnic affiliation. This is superficially attractive, but it would almost certainly prove to be a futile means of achieving a worthwhile aim. Legislation of this kind would run the risk that it would merely suppress genuine local community organisations, while the major targets would escape by re-registering as non-religious or non-ethnic organisations. In fact, any systematic attempt to restrict freedom of association is unlikely to be effective.
A better approach is to insist on certain procedures that any organisations should follow if they are to be registered and allowed to operate as NGOs, with the tax breaks and exemptions that NGO status entails. These include the following:
Sudan can learn from the experience of other African and Middle Eastern countries in their experience of the NGO sector.
Simpler procedures for the registration of small, grass-roots community organisations will be required. (Along with sports clubs, school societies, etc.)
One of the dilemmas to be faced in NGO policy is the status of human rights organisations. In many countries, human rights organisations enjoy NGO status. This has obvious financial advantages, but it has the disadvantage that most NGO laws require organisations to be ‘non-political’, and human rights activism is by its nature a political activity. British law by contrast does not allow human rights organisations to register as charities. A possible solution to this problem is to have a double system for NGO registration, dividing between ‘charities’ (which must be strictly non-political) and ‘non-profit organisations’ (that can engage in politically-related campaigning). Charities would have full tax-exempt status, while non-profit organisations would be exempt from business taxes and rates but otherwise have no special privileges.
Trade Unions and Professional Associations
Before the 30 June coup d’etat, Sudan possessed one of the most vibrant organised labour movements in Africa and the Middle East, which was a strong force for protecting the rights of workers and professionals, and also supporting democracy and human rights. In the year after the coup, trade unions and professional associations were comprehensively and severely crushed, with leading unionist activists being imprisoned, tortured and threatened with execution. Thereafter, the NIF imposed its own leaders on the remaining trade unions. Not only have many union leaders been detained, tortured and dismissed from their jobs, but very large numbers have been driven to leave the country. It will be a major challenge to reconstitute Sudan’s labour unions as the strong and progressive force that they once were.
There are three important challenges.
Freedom of Association in the SPLM’s New Sudan
The SPLM/SPLA was founded as an army conjoined to a vanguard Marxist-Leninist movement dedicated to the revolutionary transformation of Sudan. Its original 1983 Manifesto did not provide for freedom of association, neither within the Movement during its revolutionary armed struggle, nor subsequent to the achievement of its political-military goals. However, throughout its history the SPLM has also attracted support from a wide range of Sudanese citizens who see it as the strongest line of defence against oppression and dictatorship. In joining the SPLM, many individuals are seeking to protect their individual and collective rights. As a result, there is a persistent ambiguity in the SPLM’s attitude towards freedom of association.
This ambiguity is also reflected in current practices in the SPLA-controlled areas of the ‘New Sudan’ during the ongoing armed struggle:
The situation is one in which the optimist will argue that the glass is half-full, and the pessimist will argue that it is half-empty. Interpreting the SPLM’s commitment to freedom of association depends on reading the mind of the leadership: is it ‘genuinely’ committed to full civil and political rights including freedom to form political parties, or is it determined to retain power in its own hands?
This question cannot be definitively answered. Instead, civil society organisations should press for a set of common aims that can be achieved, that are consonant with the wider aims and ideals of the SPLM, and that are compatible with respect for all civil and political rights. Most of these aims can only be achieved during a future transition to peace; but some can be at least acknowledge while the armed struggle continues.
While the war continues, the SPLM/SPLA has a right to impose a de facto state of emergency inside the areas it controls in Sudan, restricting civil and political rights in order to maintain security. But the SPLM/SPLA must also recognise that its emergency powers are limited:
During a future transition to peace and democracy, the following basic principles should be asserted by civil society organisations in Sudan, with respect to the areas controlled by the SPLA:
The Sudan Government is signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 22/1 of the ICCPR states, ‘Every individual has the right of associating with others, including the right of establishing trade unions and joining them for the protection of his or her interests.’ This article should be the basis for any legislation concerning freedom of association.