A WAY FORWARD? Anti-torture reforms in Sudan in the post-Bashir era A WAY FORWARD? Anti-torture reforms in Sudan in the post-Bashir era PHOTO CREDITS REDRESS is an international human rights organi- tailed the ability of groups within Sudan to openly zation that represents victims of torture to obtain monitor the human rights situation in the country. Cover photo justice and reparations. We bring legal cases on be- However, through the expertise of our staff and their Photo cover credits: David Rose/Panos Pictures. Protesters crowd a bridge in the city centre of Khartoum, half of individual survivors, and advocate for better networks throughout Sudan, ACJPS is uniquely po- Sudan, as the continuing citizen protests enter their fourth week since the fall of President Omar al-Bashir. laws to provide effective reparations. Our cases re- sitioned to conduct monitoring, legal, and advoca- The protesters were demanding that a new interim civilian ruling council be formed to enable the country spond to torture as an individual crime in domestic cy functions. ACJPS works with dedicated networks to move towards a more democratic form of rule. and international law, as civil wrong with individual and partners inside and outside Sudan to achieve its responsibility, as a human rights violation with state goals, build alliances and strengthen the impact of Torture in Sudan responsibility. Through our victim-centered approach its work. Through the expertise of our staff and net- Photo credit: David Rose/Panos Pictures. Two women look at a display of photographs of people killed during to strategic litigation we can have an impact beyond works, ACJPS is uniquely positioned to monitor and recent protests in Sudan after the fall of President Omar al-Bashir. the individual case to address the root causes of tor- strengthen respect for human rights in Sudan. ture and to challenge the impunity. We apply our ex- African Commission pertise in law of torture, reparations and the rights of Photo credit: David Rose/Panos Pictures. Protesters pass graffiti calling for ‘justice’ in the city centre of -Khar victims, to conduct research and advocacy to identi- ACKNOWLEDGEMENTS toum, Sudan, during recent protests in Sudan after the fall of President Omar al-Bashir. fy necessary changes in law, policy and practice. We work collaboratively with international and national REDRESS and the African Centre for Justice and Domestic Law organisations and grassroots victims’ groups. Peace Studies want to thank the SOAS International Photo credit: David Rose/Panos Pictures. Protesters during a night time vigil for victims of the recent violence Human Rights Clinic for its research and assistance in in Sudan following the fall of President Omar al-Bashir. African Centre for Justice and Peace Studies is drafting this report. dedicated to creating a Sudan committed to all hu- Implementation of Domestic Law and Institutional Reforms man rights, the rule of law and peace, in which the The report was prepared by Josie Fathers, Advocacy Photo credit: David Rose/Panos Pictures. Youths hold up signs on which they have written slogans demanding rights and freedoms of the individual are honored Officer at REDRESS. REDRESS is grateful to its interns democratic civilian rule as citizen protests continue in Sudan. and where all persons and groups are granted their and fellows Ashleigh Barnes and Shemia Khalid for rights to non-discrimination, equality and justice. providing research, drafting and editing at various Since its inception in 2009 ACJPS has performed vital stages of the report. The report was reviewed by a human rights monitoring and protection functions team at REDRESS, including Rupert Skilbeck, Direc- and has built a solid reputation for the credibility, tor; Alejandra Vicente, Head of Law; Eva Nudd, Legal impartiality and professionalism of its work. ACJPS Advisor; Eva Sanchis, Head of Communications; and has also played a vital role in providing technical sup- Mossaad Mohamed Ali at ACJPS. port and training to new civil society organisations and informal activist networks. The expulsions and REDRESS and ACJPS are also grateful to Humanity suspensions of international and national civil soci- United for their contribution towards the cost of this ety groups in Sudan after the March 2009 decision report. The opinions expressed are those of the au- by the International Criminal Court (ICC) to issue an thor(s) and do not necessarily reflect the views of First published December 2019. All rights reserved. Materials may be freely disseminated and used for educational, activist and non-profit purposes, with due acknowledgment of the source. Otherwise, no part of this publication may be reproduced, stored in a arrest warrant for President al-Bashir severely cur- Humanity United. retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of REDRESS.
REDRESS ACJPS 87 Vauxhall Walk 1483 York Avenue, No. 20463 London, SE11 5HJ New York, NY 10021 United Kingdom USA www.redress.org www.acjps.org [email protected] [email protected] +44 (0)20 7793 1777 3 CONTENTS
I. EXECUTIVE SUMMARY 7
II. INTRODUCTION 9
III. CURRENT CONTEXT 11 The June massacre 12
IV. TORTURE IN SUDAN 15 Perpetrators of torture 15 Methods and patterns of torture 17 Victims of torture 18 Impunity for torture in Sudan 21
V. SUDAN’S INTERNATIONAL LAW OBLIGATIONS 23 African Commission on Human and Peoples’ Rights 24 Recommendations by the ACHPR against Sudan 27 Legislative and judicial reforms 27 Immunities 28 Duty to investigate and punish 28 Compensation 28 Summary of the African Commission’s cases 30 Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa / Sudan, Comm. Nos. 48/90-50/91-52/91-89/93 (1999) 30 Law Office of Ghazi Suleiman / Sudan, Comm. Nos. 222/98-229/99 (2003) 31 Law Office of Ghazi Suleiman / Sudan, Comm. No. 228/99 (2003) 31 Curtis Francis Doebbler/Sudan, Comm. No. 236/00 (2003) 31 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) / Sudan, Comm. Nos. 279/03-296/05 (2009) 31
5 I. EXECUTIVE SUMMARY
Abdel Hadi, Ali Radi & Others v Republic of Sudan, Comm. No. 368/09 Since 1989 when President Al-Bashir took power, Sudan adoption of the 2019 Constitutional Declaration pro- (2013) 32 has been governed by a single party that deployed the vide an opportunity for the Sudanese authorities to use of torture as a central tool to oppress its citizens. adopt legal and policy reforms that safeguard against Monim Elgak, Osman Hummeida and Amir Suliman (represented by The prohibition of torture has long been recognized as torture and provide justice and reparations for victims. FIDH and OMCT) v Sudan, Comm. No. 379/09 (2014) 33 a non-derogable jus cogens norm under customary in- ternational law. Yet Sudan has fallen short in its interna- VI. WAY FORWARD: PRIORITIES FOR LEGAL DOMESTIC As advocated in this report, Sudan should ratify the tional obligations to prohibit and prevent torture. REFORMS 34 UNCAT and other relevant human rights treaties and amend its Constitution to ensure the definition of Prevention of torture 36 The African Commission on Human and Peoples’ torture is in line with Article 1 of UNCAT. Further, it The definition of torture 36 Rights and relevant UN bodies have repeatedly called should remove any immunities that prevent effec- out the government of Sudan for failing to uphold its tive investigation and prosecution of torture by the Safeguards 36 obligations under international law and urged the security, police and military forces. The National Security Act 2010 39 government to adopt or amend laws in compliance Evidence obtained by torture 40 with these international obligations. Sudan’s legal framework and policies should follow international law and ensure that detained persons Accountability for torture 40 Sudan’s failure to ratify the UN Convention against have basic rights and freedoms, including the provi- The criminalization of torture 40 Torture and other Cruel, Inhuman or Degrading Treat- sion of legal aid, effective communication with fam- Statute of limitations 41 ment or Punishment (UNCAT), its weak domestic legal ily and a lawyer, and having access to independent framework, and rampant impunity have contributed judicial review, amongst other basic safeguards. Immunities 42 to the widespread use of torture in Sudan by the po- Remedies and reparation for victims of torture 43 lice, military, and the National Intelligence and Security Finally, Sudan should ensure that victims of torture Compensation 43 Service (NISS), leaving many victims with no effective and other gross human rights violations have access remedy and no access to reparations. The fall of Al- to justice, truth and reparations as required by inter- VII. SUMMARY OF RECOMMENDATIONS 45 Bashir, the introduction of a new government, and the national law.
A WAY FORWARD? 6 Anti-torture reforms in Sudan in the post-Bashir era 7 ACRONYMS II. INTRODUCTION
ACJPS African Centre for Justice and Peace Studies The prevalence of torture in Sudan has been a decisions are yet to be implemented and the former long-standing concern, and Sudan has consistently Sudanese Government has been wholly non-com- ACHPR The African Commission on Human and Peoples’ Rights failed to meet its international obligations on torture. pliant. Non-compliance has disastrous impacts on The African Charter The African Charter on Human and Peoples’ Rights victims, who find themselves without remedy, even CRC United Nations Convention on the Rights of the Child The current period of transition provides an oppor- after resorting to international fora. This in turn tunity to ensure Sudan meets its international law erodes and undermines the Commission’s credibility FFC Forces for Freedom and Change obligations and implements robust mechanisms to and authority as an effective protector of the rights GIS General Intelligence Service safeguard against, investigate and provide redress enshrined in the African Charter.1 for torture. The current domestic legal framework HRC Human Rights Council and its implementation are wholly inadequate. Under the previous regime there was no coherent HRDs Human rights defenders anti-torture policy or a coordinated effort to tackle ICCPR International Covenant on Civil and Political Rights Sudan is a party to several relevant international the causes of torture and to provide justice, account- treaties prohibiting torture, including the -Interna ability and redress in individual cases. ICC International Criminal Court tional Covenant on Civil and Political Rights (ICCPR), NCP National Congress Party the Convention on the Rights of the Child (CRC), and Such a policy would need to be developed and be the African Charter on Human and Peoples’ Rights based on Sudan’s obligations under international NISS National Intelligence and Security Service (the African Charter). These treaties are also an inte- law and its Constitutional Declaration. To this end, it NIF National Islamic Front gral part of Sudan’s 2019 Constitutional Declaration. should include the absolute prohibition of torture in NSA Act National Security Act 2010 Sudan is, therefore, obliged to take measures aimed Sudanese law, the provision of safeguards to prevent at preventing torture, responding to allegations of torture, and measures to ensure accountability and OHCHR United Nations Office of the High Commissioner for Human Rights torture by means of prompt, impartial and effective reparations. Sudan should ratify treaties to which it RSF Rapid Support Forces investigations and prosecutions, and providing effec- is not yet a party, particularly the UNCAT, and the tive remedies and reparations. Optional Protocol thereto, which provide for addi- SC Sovereign Council tional monitoring on the prohibition of torture. SPLAM/N Sudanese People’s Liberation Movement North Over the last decade, national, regional and interna- SAF Sudanese Armed Forces tional actors have identified a series of problems in Effectively combating the legacy of torture in Sudan, the Sudanese legislative and institutional framework and the structural factors contributing to its persis- SPLA/M Sudanese People’s Liberation Army/Movement and practice in relation to the prohibition of torture. tence, requires fundamental reforms. Legislative SRF Sudanese Revolutionary Front One such body is the African Commission on Human reform, such as the adoption of an anti-torture law and Peoples’ Rights (ACHPR), a quasi-judicial body that meets international standards, is an important SPA Sudanese Professionals Organisation tasked with interpreting the African Charter and en- component of these broader reforms. TMC Transitional Military Council suring the protection and promotion of the human and peoples’ rights included in the African Charter. UNCAT UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment 1 George Mukundi Wachira and Abiola R Ayinla, ‘Twenty Years or Punishment of Elusive Enforcement of the Recommendations of the African Commission on Human and Peoples’ Rights: A Possible Remedy’ To date, the ACHPR has issued seven decisions on
A WAY FORWARD? 8 Anti-torture reforms in Sudan in the post-Bashir era 9 This report does not contain a comprehensive anal- nature of torture in Sudan, identifying the main ysis of all laws and policy reforms needed in Sudan. perpetrators, methods and patterns, and victims The purpose of this report is to identify priorities for of torture. Section V explores Sudan’s internation- III. CURRENT CONTEXT change and to assist the new Government and Civil al obligations to prevent torture pursuant to rele- Society to introduce robust, practical and effective vant international and regional treaties, including reforms to ensure Sudan meets international law ob- an analysis of the existing ACHPR decisions against In December 2018, a threefold increase in the price of (TMC/FFC) presidency, followed by elections. The ligations to combat and eradicate torture. Sudan. Section VI highlights the key priorities for bread triggered peaceful mass protests against eco- agreement also called for investigation into unlawful domestic legal and policy reform needed in the nomic hardship, inequality and poverty in Sudan. These violence against protestors and set a six-month time Section III of this report briefly sets out the un- current Sudanese context, to ensure the preven- protests expanded all over the country and became frame to reach a peace agreement with all armed folding events that have taken place in Sudan in tion of torture, accountability for torture and ac- known as the “Sudanese Uprising” uniting citizens over rebel groups throughout the country, including Blue the last year and situate these in the broader con- cess to remedies and reparations. Finally, Section concerned grievances over lack of good governance, Nile, Darfur and South Kordofan. text that has allowed torture to be a widespread VII contains a summary of all recommendations authoritarian rule, and human rights violations in Su- practice in the country. Section IV outlines the made in the report. dan. Tens of thousands of Sudanese people peacefully On 4 August, the parties signed a Constitutional Dec- protested on a daily basis for a four-month period. laration that establishes the transitional bodies and sets out mandated tasks. On 17 August, the parties In this period, the authorities regularly used “exces- signed the power-sharing agreement which togeth- sive and disproportionate force to disperse protests, er with the Constitutional Declaration made up the resulting in the deaths and injuries of several protest- Transitional Agreement. On 21 August, the new SC ers,” including firing “live ammunition and tear gas members were sworn in along with the prime minis- into hospital premises, where protesters were taking ter. Prime Minister Hamdok nominated a new cab- shelter,” and deploying “arbitrary arrest, detention, inet and a 300-member legislative council is to be torture and ill-treatment of persons suspected of appointed within 3 months after the SC and the Cab- participating in or supporting the protests.”2 inet’s meeting on 1 September 2019.3
On the night of 10 April 2019, the protest movement During his time in power (1989-2019), President Al- led to the ouster of President Omar Al-Bashir and the Bashir and his government committed a spectrum of installation of a Transitional Military Council (TMC). human rights violations: the dissolution of political Peaceful protests – punctuated by unlawful attacks organs of the State, political parties, trade unions, continued even after the ouster of Al-Bashir. Protest- press and civil society organisations; the mass arrest, ers and their representatives continued to demand a arbitrary detention and torture of politicians and ac- civilian-led transition to a civilian rule. tivists; as well as the mass killings, rape and enforced disappearance of ordinary citizens. Al-Bashir is want- On 5 July 2019, the TMC and representatives of the ed by the International Criminal Court (ICC) on sev- civilian protest movement, the Forces for Freedom eral counts of crimes against humanity, war crimes, and Change (FFC) agreed to a power-sharing deal. and genocide for crimes committed in Darfur.4 The agreement provided for a 39-month transition period led by a Sovereign Council (SC) with a rotating 3 ‘Sudan Factions Initial Pact Ushering in Transitional Govern- ment’ Reuters (4 August 2019)
A WAY FORWARD? 10 Anti-torture reforms in Sudan in the post-Bashir era 11 Initially, Al-Bashir consolidated control through the THE JUNE MASSACRE ten people.14 On 29 July 2019, security forces broke tee will not conduct an independent, credible and imposition of a state of emergency for many years up a student protest in the city of El-Obeid, shooting impartial inquiry.19 Human Rights Watch also criti- and the formation of the National Intelligence and In the context described above, on 3 June 2019, secu- dead at least six protesters, including three minors.15 cized the investigation foreseen in the Constitutional Security Service (NISS) in the years following 1989.5 rity forces, predominantly made up from Rapid Sup- Declaration noting it does not seem adequate to lead Until April 2019, the NISS dominated many spheres port Forces (RSF) attacked peaceful demonstrators at Following the violence, the Sudanese public carried to eventual criminal prosecution, and the failure to of life in Sudan and benefitted from extensive pow- a sit-in in Khartoum (the June Massacre). The RSF is out mass civil disobedience campaigns with calls to request involvement of the United Nations Office of ers vested in it by the National Security Acts of 1999 a paramilitary force under the authority of General investigate and punish those responsible.16 the High Commissioner for Human Rights (OHCHR) and 2010.6 Mohamed Hamdan Dagalo, known as “Hemedti,” and Human Rights Council (HRC).20 who served as deputy head of the TMC and has since The Constitutional Declaration, for its part, man- After the secession of South Sudan in 2011, fight- been sworn in as a member of the SC. More than one dates the formation of a: Sixteen Civil Society Organisations, including - RE ing erupted between the Sudanese People’s Lib- hundred civilians were reported killed and hundreds DRESS, have called upon the HRC to support the es- eration Movement North (SPLAM/N), and the Su- more injured.11 Protesters were also beaten and de- national, independent investigation committee, tablishment of an independent commission to inves- danese Armed Forces (SAF) in South Kordofan and tained, subjected to rape, including gang rape, and with African support if necessary, as assessed by tigate all human rights violations and abuses, includ- the Blue Nile.7 other forms of intimidation and humiliation.12 the national committee, to conduct a transpar- ing sexual and gender-based violence, committed ent, meticulous investigation of violations com- in the context of peaceful protests since December The war in Darfur began in 2003, when the govern- The security forces attacked the protest site, blocked mitted on 3 June 2019, and events and incidents 2018 (including the June Massacre).21 No concrete ment and government backed tribal militia started the exit so that protesters could not leave, and used where violations of the rights and dignity of civil- action was taken by the Human Rights Council in its fighting local opposition groups, the Sudanese Peo- live ammunition. Gunmen reportedly threw bodies ian and military citizens were committed.17 42nd session in September 2019 beyond the adop- ple’s Liberation Army/Movement (SPLA/M).8 The into the Nile, weighing them down with bricks. At tion without a vote a report of the Independent Ex- conflicts between the government and South Kordo- least three hospitals were attacked, with reports of The Constitutional Declaration also provides that the pert (IE) on the situation of human rights in Sudan. fan, Blue Nile and Darfur are intertwined, and rebel doctors being assaulted. Following the June Massa- Investigation Committee is formed within one month In the report, the IE expressed his concerns about forces from all three regions have formed an alliance cre, targeted harassment of medical personnel led from the date when the appointment of the Prime the independence and impartiality of the national known as the Sudanese Revolutionary Front (SRF).9 to the closing of eight hospitals.13 Key opposition fig- Minister is approved.18 The seven-member Investi- fact-finding mechanism. The Constitutional Declaration mandates the resolu- ures were detained and beaten. gation Committee was announced on 24 September tion of these conflicts.10 2019, and includes a representative from the Minis- Violence and abuses by forces under the command try of Defence, which oversees all armed forces in- of the TMC continued. On 30 June 2019, RSF forc- cluding the RSF, and a Supreme Court Judge. Human es attacked protesters in Omdurman, killing at least Rights Watch has raised concerns that the Commit- 5 Amnesty International, ‘Sudan: Agents of Fear: The National Security Service in Sudan’ (2010) AFR 54/010/2010 < https:// 14 ‘Restrictions, Unmet Promises, Unbridled Violence in Sudan, www.amnesty.org/en/documents/document/?indexNumber=A- a “Recipe for Disaster”, Says Bachelet’ UN News (3 July 2019) 11 Jason Burke and Zeinab Mohammed Salih, ‘Sudanese Protest- FR54%2f010%2f2010&language=en> accessed 8 October 2019.
A WAY FORWARD? 12 Anti-torture reforms in Sudan in the post-Bashir era 13 Torture was an integral component of the Sudanese the independent judiciary, replacing it with senior government’s methodology of repression in the Al- party members.22 IV. Bashir era. When the National Congress Party (NCP) (formerly the National Islamic Front or the NIF) Once in power, the NCP converted the pre-existing TORTURE came to power in 1989, it introduced amendments conflict with southern states into a coordinated pol- to the Penal Code. These amendments included ad- icy of discrimination and ethnic cleansing and con- IN SUDAN vanced punishments based on Shari’a and purging ducted it with unprecedented levels of aggression.23 It pursued a policy of repression through mass rape, looting, destruction and killing across multiple inter- nal conflicts, providing a climate for torture to thrive. This section briefly sets out the main perpetrators, practices and victims of torture identified in Sudan, as well as the prevailing impunity for this crime.
PERPETRATORS OF TORTURE
National Intelligence and Security Service
The NISS has been the primary institution responsi- ble for torture and ill-treatment in detention.24 Se- curity agents vested with wide-ranging immunities have carried out a range of human rights violations with impunity.25 Sudan’s National Security Act 2010 (NSA Act) provides the legal foundation for the NISS extensive powers to arrest, arbitrarily detain, and interrogate perceived opponents and those with perceived links to rebel groups, in order to silence
22 Nasif BE Ahmed, Torture in Sudan 1989-2016 (New Horizons Research Centre 2017) 127; Fathi Aldaw, Spider House: Unrav- elling the secrets of Sudanese Islamist Securities (1 edition, Ja- zeerat Al-ward/ Egypt 2016) 235; Interview with Fath El-Alaim Abd-Alhai, ‘Leader of the Elsayhoon: Torture and Murder of Captives in “Civilisation Project” Based on Religious Fatwai’ (12 March 2015). 23 Berghof Foundation for Peace Support (Ed.), ‘Sudan: Con- flict Analysis and Options for Systemic Conflict Transformation’ (2006) 17
15 opposition. The NSA Act fails to provide appropri- of 2019 amended the NSA Act again. The decree have been multiple reports of deaths in detention, thorities have repeatedly been found to have used ate human rights guarantees, such as judicial review changed the name of the agency and allegedly re- although no comprehensive figures exist.37 excessive force (including lethal force), amounting and custodial safeguards.26 Furthermore, in 2015 stricted its power of search and arrest under Article to torture and other violations, in the course of and again in 2017, the NSA’s powers were expand- 50 of the NSA Act.31 Under the new amendments, Army and paramilitary these duties.42 ed beyond intelligence to include the collection, GIS will no longer be authorized to arrest people or analysing and classification of information.27 As a carry out search operations.32 Members of the army and paramilitary forces have result, torture and ill-treatment are endemic within also been extensively implicated in torture in the METHODS AND PATTERNS security service detentions. Political opponents are Police and prison staff course of military campaigns in Southern Sudan, OF TORTURE held without charge or trial and routinely tortured Kordofan, the Blue Nile region and Darfur.38 The RSF, in unacknowledged secret detention centres known Torture has been perpetrated by police and prison a military organisation under the command of the The list of torture methods practised in Sudan is vast, to the Sudanese public as ‘ghost houses’.28 The NISS staff to extract confessions or to extort money.33 Po- NISS, and other government aligned militia (such as brutal and diverse. They include but are not limited to: runs these centres without judicial oversight, and lice officers are granted conditional immunities for the Janjaweed, or Darfuri tribal militia) have been victims are usually held incommunicado, without any act done in the discharge of their duties, which reported to have committed multiple human rights “routine beatings, kicking and stamping detain- access to a lawyer, doctor, or any family members, can only be lifted by the head of their forces, as out- violations. In 2015, the UN Panel of Experts on Su- ees, electric shocks, harsh regimes of physical thereby providing the necessary deniability to car- lined in Article 45 (1) of the 2008 Police34 Act. As dan noted that the government’s strategy in Darfur exercise, prolonged exposure to the sun, pour- ry out rights violations. The conditions in the ghost with the NISS, this largely equates to impunity. Pris- includes one of “collective punishment” of commu- ing cold water on the naked body, rape in cus- houses are reportedly so poor, that the mere act of on conditions throughout the country are severe, nities, and is characterised by the forced displace- tody and threatening with rape, sleep depriva- detention itself amounts to ill-treatment. Detainees suffering from extreme shortages in food supplies ment of communities, destruction of physical infra- tion, refusal of food and medical treatment and are forced to occupy dirty, small unventilated spac- and overcrowding.35 The prisons have issues with structure of communities, mass rape, torture and forcing some detainees to witness the torture es, where they are usually deprived of rest, sleep, lighting, ventilation, and lack of basic resources in- killing of civilians.39 Like acts governing the NISS and of others.’43 food, and water.29 cluding bedding, and access to medical care.36 There the police, Article 42 (1) of the Armed Forces Act of 2007 provides immunities for military officers, -pre Reports have been made of the application of hot
Sudan’s 2019 Constitutional Declaration replaces the 31 “Sudan Issues a decree to restructure national security body.” venting investigation without the approval of the metal and burning chemical substances to the skin, NISS with the General Intelligence Service: http://www.xinhuanet.com/english/2019-07/30/c_138268173. Commander in Chief,40 further fortifying a culture of pulling out of teeth and nails, coercive inhalation of htm impunity within the authorities. toxic and irritating fumes, hanging from the feet up- 32 Sudan Tribune, “ Sudan’s military reforms security services, [A] uniformed agency that is competent in na- 30 July 2019, http://www.sudantribune.com/spip.php?arti- side down,44 whipping, slashing of the skin,45 along tional security. Its duties are limited to gathering cle67863, accessed 20 November 2019. Further, Articles 125 and 126 of the 1991 Crimi- with the breaking of bones and the injection of de- 33 African Centre for Justice and Peace Studies, ‘“I Was Elec- 46 and analysing information and providing it to the trocuted”: Torture in Sudan from 2011 – 2015 – African Centre nal Procedure Act, authorize the NISS, police, and tainees with unknown substances. competent bodies.30 for Justice and Peace Studies’ 12–15
A WAY FORWARD? 16 Anti-torture reforms in Sudan in the post-Bashir era 17 objects into the mouth, the anus, and the crushing were arrested using excessive force, and beaten over Professionals (e.g. Doctors, Lawyers) Minority Ethnic Groups of testicles.47 their bodies with hoses and pipes.50 Professionals, such as lawyers and doctors were a Ethnic minority groups, including Darfuris and peo- Psychological forms of torture include prolonged sol- In July 2019, security forces used live ammunition on particular target of the NISS. The objective is to ham- ple displaced from the Blue Nile and South Kordo- itary confinement, mock executions and witnessing hundreds of students protesting in school uniforms. per their work against rights violations, deter them fan states, are particularly vulnerable to torture and the torture of others.48 Four students were killed and at least 62 people from providing future support to victims, and deter ill-treatment. Detainees have reported the use of were wounded.51 their counterparts in the field from doing the same. racist verbal abuse and poor detention conditions.56
VICTIMS OF TORTURE Human Rights Defenders and Political Ac- Journalists Members of the Diaspora tivists The list of victims of torture and ill-treatment in Su- The Sudanese government had regularly engaged in As part of the Khartoum Process (a platform for po- dan is extensive. Broadly, victims of torture can be Prior to the Sudanese Uprising, Sudan was one of a number of repressive practices of arbitrary deten- litical cooperation amongst the countries along the categorized as being within one or more of the fol- the most difficult operating climates for HRDs glob- tion and torture of journalists to maintain control migration route between the Horn of Africa and Eu- lowing groups (and in no particular order): students, ally. They were systematically harassed, singled out over the information landscape. rope), many Sudanese nationals who have been un- human rights defenders (HRDs) and political activ- and abused, in order to prevent the monitoring and successful with their asylum application have been ists, professionals (e.g. doctors, lawyers), trade un- reporting of the prevalent practices of extra-judicial In 2016, Phil Cox, a British journalist working for forcibly or voluntarily returned back to Sudan. Al- ionists, minority ethnic groups, members of the dias- killings, enforced disappearances, torture and other Channel 4, along with Daoud Hari, his local producer, though post-deportation monitoring is difficult, many pora, those in conflict zones, women and protesters. human rights violations.52 was captured by the RSF militia whilst investigating of them have reported ill-treatment and torture.57 allegations of chemical warfare in the Jebel Marra Students In January 2018, the ACJPS reported the arbitrary region. Cox reported being beaten, shocked with In December 2017, eight deportees described a pe- and incommunicado detention of nine HRDs,- law electricity, and asphyxiated over the course of 70 riod of detention on arrival at Khartoum airport and Students and universities are systematically target- yers and journalists, all in relation to peaceful pro- days’ detention without charge or trial.54 interrogation lasting several days, with some of them ed as a result of their centrality in resistance move- tests against rising commodity prices. One of the describing being beaten with a stick.58 ments and social activism against the regime.49 An- victims, Amel Hamani, reported being beaten by an On 6 December 2018, ACJPS reported the arrest of ti-government demonstrations proliferated amongst electric rod.53 four journalists. They were arrested and allegedly campuses after the 1989 coup, in 2011 as a result of 56 ACJPS, ‘Sudan: On the International Day in Support of Torture physically assaulted while in NISS custody, and their Survivors, End Torture and Repeal Enabling Legislation – African austerity measures, and in 2019 as part of the Suda- phones were also confiscated and inspected.55 Centre for Justice and Peace Studies’
A WAY FORWARD? 18 Anti-torture reforms in Sudan in the post-Bashir era 19 Those in conflict zones Hundreds of rapes, including gang rapes, reported- IMPUNITY FOR TORTURE using torture to extract confessions removes any ne- ly occurred during the June 2019 Massacre and the IN SUDAN cessity for permission to prosecute. Still, the police Numerous reports support evidence of government days that followed. Many women and girls were gang- officers involved in the case were sentenced only to backed mass atrocities that amount to torture and raped on the spot, while others were kidnapped and Sudan’s system of immunities (analysed in Section six months imprisonment and a fine of 9,000 Suda- crimes against humanity in Sudan’s conflict zones, includ- continuously raped for days elsewhere.63 V below) effectively bars accountability for torture – nese Pounds.70 ing killings, mass rape and torture of civilians, and the de- by preventing victims from obtaining justice and rep- struction and displacement of entire communities.59 Protesters arations in the course of criminal proceedings and/ However, this judgment has not been followed in or from filing an independent civil legal claim against subsequent cases.71 The Attorney General has pur- A 2016 Amnesty International report documented Peaceful protesters, including those during the Su- the individual official concerned. sued cases before the courts requesting the removal the attack of 171 villages in the Jebel Marra region danese Uprising, have been victims of beatings, arbi- of immunities but those immunities have been up- of Darfur by paramilitary forces. Interviews with local trary arrests and detention, torture, live ammunition Accordingly, prosecutions for torture are extremely held, and the cases dismissed.72 The Sudanese Con- survivors suggest that 367 civilians were killed dur- and killings. rare. In a promising decision handed down in 1993, stitutional Court has since justified immunities,- em ing this attack, either during bomb blasts or by being the Supreme Court held that authorisation 66 was phasising their conditional nature and the possibility shot whilst fleeing. Many survivors confirmed the use In a report examining the detention of protesters not required to proceed in cases involving the use of judicial review.73 of a “poisonous smoke” by government forces, with between 2012-2014, Amnesty International noted of torture.67 In this specific case, three police officers the limited available physical and biological evidence in relation to protests against fuel subsidies cuts in were convicted under Article 115(2) and 142(2) of There is only one other known successful prosecu- suggesting possible use of chemical weapons.60 2013 that the army reportedly used excessive force. the Criminal Act 1991 for torturing a woman in or- tion. In 2004, a Military Court found officers from While a Human Rights Watch report documented der to extract a confession.68 The Court unanimously the national security forces guilty of torture.74 The Women the most violent of the dispersal of protests since held that the absence of prior permission to prose- officers were sentenced to one-year imprison- December 2018, including killings, beatings, arbi- cute under Article 61 of the (then) Police Forces Act ment, discharged from their jobs and made to pay Women in Sudan are at risk of experiencing sexual trary arrests and sexual violence.64 In addition, ACJPS did not invalidate the conviction of the accused. The 3,000,000 (sic) Sudanese Dinars (then approximately and gender-based violence (SGBV) in many forms, received verifiable information of over 800 arbitrary decision essentially waived immunity for such cases. US $12,000) as compensation to the torture survivor. including rape, female genital mutilation, and oth- arrests, and 185 deaths during the protest.65 Referring to circulars issued by the General Direc- This sentence, and the sentence in the 1993 decision, er forms of sexual violence, and across multiple in- tor of the Police,69 the Court held that authorisation are wholly incommensurate to the harm caused. tersections of age, ethnicity, religion and displace- needed to be obtained only when the act in ques- ment.61 Furthermore, women are discriminated and tion is one that is required by law to be performed. In the context of Sudan, the African Commission susceptible to frequent arrests, detention, trial and In all other cases there is no need to obtain author- has admitted cases on the grounds of domestic punishment under the public order laws (strict moral isation. Thus, the express prohibition in the law of remedies being either unavailable,75 inaccessible,76 codes incorporated in law, including the restriction of women’s participation and presence in the public 66 The authorisation needed will differ based on the agency. sphere and prescribing dress code).62 In general, it would be authorisation from the senior members within the agency. By way of example, article 52 of the NSA pro- 70 Ibid vides that: (3) Without prejudice to the provisions of this Act 63 Hala Al-Karib, ‘Sudan’s Youth Showed Us How to Counter Sex- 71 ‘National and International Remedies for Torture’ (n 47) 27–28. ual Violence’
A WAY FORWARD? 20 Anti-torture reforms in Sudan in the post-Bashir era 21 ineffective,77 insufficient,78 or even non-existent,79 or that the violations are such that they cannot be ‘remedied by domestic remedies.’80 V. SUDAN’S INTERNATIONAL LAW OBLIGA- TIONS
Sudan is a party to several relevant human rights treaties at the international and regional level related to the prohibition of torture. This includes the ICCPR, with the UN Human Rights Committee as the moni- toring body, and the African Charter, which is moni- tored by the ACHPR. Sudan is, therefore, obliged to take measures aimed at preventing torture, respond- ing to allegations of torture by means of prompt, im- partial and effective investigations and prosecutions, and providing effective remedies and reparation.
Chapter 14 of the Constitutional Declaration 2019 includes a new Rights and Freedoms Charter, which is described as:
“…a pact between all the people of Sudan, and between them and their governments at every 77 Abdel Hadi, Ali Radi & Others v Republic of Sudan, Comm No level. It is an obligation on their part to respect 368/09 (African Commission on Human and Peoples’ Rights) [48] < https://www.achpr.org/sessions/descions?id=249>;Law Offic- the human rights and fundamental freedoms es of Ghazi Suleiman / Sudan, Comm. No. 228/99 (n 75) para 39. contained in the document, and to work to ad- 78 Monim Elgak, Osman Hummeida and Amir Suliman (repre- sented by FIDH and OMCT) v Sudan, Comm No 379/09 (African vance them, and they shall be considered the Commission on Human and Peoples’ Rights) < https://www.ach- cornerstone of social justice, equality and de- pr.org/sessions/descions?id=221> [48]. mocracy in Sudan.”81 79 Amnesty International and Others v Sudan, Comm Nos 48/90, 50/91, 52/91, 89/93 (African Commission on Human and Peoples’ Rights) [34] < https://www.achpr.org/sessions/de- scions?id=106>. 80 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, Comm Nos 279/03-296/05 (Afri- can Commission on Human and Peoples’ Rights) [94] < https:// www.achpr.org/sessions/descions?id=190>. 81 Constitutional Declaration 2019 (n 10), Article 41(1).
A WAY FORWARD? 22 Anti-torture reforms in Sudan in the post-Bashir era Further, the Constitutional Declaration has pledged national criminal law.87 A range of other rules and Under Article 5 of the African Charter, Sudan has a Some of the pending cases involve instances of respect for international human rights standards, standards have also been developed to safeguard legal obligation to prohibit torture.90 In 2017, the SGBV, including rape in custody,93 and torture based stating that: “All rights and freedoms contained in against torture. ACHPR adopted General Comment 4 on the Right to on discrimination due to religious beliefs. In addi- international human rights agreements, pacts and Redress for Victims of Torture following consultation tion, the cases showcase how any person perceived charters ratified by the Republic of Sudan shall be The reports from the Independent Expert on the with State and non-State stakeholders.91 General as a threat, regardless of their nationality, is exposed considered to be an integral part of this document.”82 Situation of Human Rights in Sudan, established in Comment 4 provides an authoritative interpretation to torture.94 This includes the prohibition of torture or “harsh, in- 1993, have highlighted the systematic practice of of the scope and content of the right to redress for humane, or degrading treatment or punishment, or torture and ill-treatment and made numerous rec- victims of torture and other ill-treatment under the In its jurisprudence, the ACHPR has called out the debasement of human dignity.” 83 ommendations to Sudan.88 However, the Sudanese mandate of the African Commission. failure of Sudan to “put in place an adequate legis- government has generally failed to engage with the lative framework” or “afford an adequate remedy to However, Sudan has not yet ratified the UNCAT, de- United Nations Special Procedures, occasionally de- There are also regional standards developed under the victims”.95 It has repeatedly recommended that spite signing it on 4 June 1986. In 2016, Sudan re- nying them the right to visit the country, and denying the ACHPR, including the Robben Island Guidelines, Sudan should compensate victims, investigate and ported that committees had been formed to study access to civil society organisations.89 which created the first regional instrument for the prosecute those responsible of violations, and make the possibility of acceding to the UNCAT,84 yet no prohibition and prevention of torture in Africa and judicial and legislative reforms in conformity with progress has been made so far. the Principles on the Right to a Fair Trial and Legal the African Charter.96 AFRICAN COMMISSION FOR Assistance in Africa.92 While Sudan is yet to ratify the UNCAT, the prohibi- HUMAN AND PEOPLES’ RIGHTS In terms of accountability, the African Commission tion of torture is enshrined under customary inter- The ACHPR has decided seven cases against Sudan has either found the Sudanese government direct- national law and carries the special status of a jus The ACHPR is a quasi-judicial body, tasked with de- on their merits (out of a total 13) with at least ten ly involved in the violations, or that the government cogens norm, from which no derogation is permit- ciding complaints related to alleged violations of the cases pending. had not taken “appropriate measures to protect the ted.85 In addition, torture is firmly forbidden under rights protected in the African Charter and making physical integrity of its citizens from abuse either by international humanitarian law (IHL)86, and in the remedial recommendations to State parties. In every case that was found admissible, the African official authorities or other citizens/third parties.”97 context of individual criminal responsibility by inter- Commission found instances of torture and cruel, in- human and degrading treatment or punishment (ar- 93 Safia Ishaq Mohamed Issa (represented by The REDRESS Trust) ticle 5 of the African Charter), often in conjunction v Republic of Sudan, Comm No 443/13 (African Commission on Human and Peoples’ Rights) [2013] Submission on the merits: with other human rights violations. complaint of a female student human rights activist who has al- legedly been raped whilst in the custody of three security officers. 94 E.g. Magdy Moustafa El-Baghdady v The Republic of the Su- dan, Comm. No. 476/14 (African Commission on Human and 87 Rome Statute of the International Criminal Court (adopted 17 Peoples’ Rights) [2018] Submission on the merits: British citizen July 1998, entered into force 1st July 2002) 2187 UNTS 90. Note who wanted to explore business opportunities in Sudan and that The Rome Statute was adopted in July 1998 and entered who has been accused by the Sudanese authorities of coming into force in 2002. Sudan signed the Statute in 2000 but has not to Sudan in order to incite revolution and thereby detained over ratified it. The situation in Darfur was referred to the ICC by the 90 Article 5 states: “Every individual shall have the right to the re- nearly three months. 82 Constitutional Declaration 2019 (n 10), Article 41(2). Security Council in 2005, on the basis of the findings of the UN spect of the dignity inherent in a human being and to the recogni- 95 See, for example, Abdel Hadi, Ali Radi & Others v Republic of 83 Constitutional Declaration 2019 (n 10), Article 50. International Commission of Enquiry on Darfur in 2004. The ICC tion of his legal status. All forms of exploitation and degradation Sudan, Comm. No. 368/09 (n 77) para.92. 84 Human Rights Council, ‘National Report Submitted in Accord- issued six arrest warrants for high-ranking Sudanese officials, of man particularly slavery, slave trade, torture, cruel, inhuman 96 Amnesty International and Others v. Sudan, Comm. Nos. ance with Paragraph 5 of the Annex to Human Rights Council including one in 2009 for President Omar Al-Bashir, for crimes or degrading punishment and treatment shall be prohibited.” 48/90, 50/91, 52/91, 89/93 (n 79); Curtis Francis Doebbler v Su- Resolution 16/21-Sudan’ (2016) UN Doc A/HRC/WG.6/25/ against humanity and war crimes. In 2010, a second arrest war- 91 African Commission on Human and Peoples’ Rights, ‘Gener- dan, Comm. No. 236/00 (n 76); Sudan Human Rights Organisa- SDN/1. < https://documents-dds-ny.un.org/doc/UNDOC/GEN/ rant was issued against al-Bashir for three counts of genocide, al Comment No.4: The Right to Redress for Victims of Torture tion & Centre on Housing Rights and Evictions (COHRE) v. Sudan, G16/025/86/PDF/G1602586.pdf?OpenElement> accessed 9 Oc- allegedly committed against the Fur, Masalit, and Zaghawa and Other Cruel, Inhuman or Degrading Punishment or Treat- Comm. Nos. 279/03-296/05 (n 80); Law Offices of Ghazi Sulei- tober 2019 groups. Sudan has rejected the legitimacy of the ICC and the ment (Article 5)’
A WAY FORWARD? 24 Anti-torture reforms in Sudan in the post-Bashir era 25 In the latter category, the ACHPR has acknowledged • consider enacting a law criminalizing torture; consideration of the case until receipt.103 In 2015, RECOMMENDATIONS BY THE that the Sudanese government has failed to protect the Sudanese Government’s representative did not ACHPR AGAINST SUDAN victims of alleged human rights violations including • appoint an independent commission to investi- attend hearings.104 Sudan currently has three reports torture, and failed to investigate the allegations and gate torture by the police, as well as all extraju- overdue under the state reporting procedure.105 The In broad terms, the African Commission has consid- to prosecute perpetrators.98 dicial executions and enforced disappearances, ACHPR sent five letters of urgent appeal to Sudan ered and made recommendations in the following and make the findings public; and since November 2017. Sudan is yet to respond to areas in relation to the prohibition of torture: In its more recent decisions, the ACHPR has rec- four of these letters.106 ommended more specific legislative and judicial • enact legislation prohibiting female genital mu- Legislative and judicial reforms; reforms. The inclusion of victims’ “prayers” from tilations, violence and other discriminatory prac- At this transformative moment for Sudan, the Afri- 2009 in cases on Sudan has given more material to tices against women. can Commission’s recommendations “constitute an The removal of immunities; the African Commission for its recommendations.99 important source and play a critical role in monitor- The ACHPR has requested that the Sudanese govern- • take immediate steps to close down all unofficial ing Sudan’s implementation of its international obli- Investigation of and punishment for violations; ment informs the Commission of measures taken to places of detention; and gations; they provide a baseline, give expression to implement its decisions.100 shared concerns and allow identifying priority areas Compensation for victims; and, • ensure that the Prison Service get adequate re- for prompt/overdue action to be taken.”107 In its 2012 Concluding Observations, the ACHPR rec- sources to improve living conditions and access to Training of security officers regarding torture. ommended that Sudan should: health care in prisons and places of detention.101 Legislative and judicial reforms • abolish laws that allow corporal punishment, in- The African Commission made specific recommen- cluding stoning, amputation, cross-amputation dations with regards to the practice of granting In Amnesty International and Others v. Sudan, the and whipping; immunities in Sudan, recommending that Sudan first decision decided on the merits against Sudan in should repeal Article 52(3) of the National Securi- 1999, the ACHPR called for the respect of the African include human rights standards, such as the ty Act 2010 that provides members of the NISS and 103 Sudan Human Rights Organisation & Centre on Housing Charter and identified specific domestic legislation • Rights and Evictions (COHRE) v. Sudan, Comm. Nos. 279/03- Robben Island Guidelines, in the training of pris- their associates with immunity from criminal and 296/05 (n 80) para 22,41,53,56; Law Offices of Ghazi Suleiman that enabled the violations.108 In subsequent cases, it on staff and police officers; civil procedures102. / Sudan, Comm. No. 228/99 (n 75) para 16; Curtis Francis Doeb- bler v Sudan, Comm. No. 236/00 (n 76) para 16. has recommended that Sudan “bring its legislation in 109 104 Monim Elgak, Osman Hummeida and Amir Suliman (repre- conformity with the African Charter,” and “amend 98 Amnesty International and Others v. Sudan, Comm. Nos. 48/90, Sudan has not implemented any of the African Com- sented by FIDH and OMCT) v Sudan, Comm. No. 379/09 (2014) its existing laws to provide for de jure protection of 50/91, 52/91, 89/93 (1999) para. 51 ; Law Office of Ghazi Sulei- (n 78) para 19. man / Sudan, Comm. No. 222/98-229/99 (2003) para. 46 ; Sudan mission’s recommendations nor has it indicated 105 ACHPR, ‘46th Activity Report of the African Commission of the human rights to freedom of expression, assem- Human Rights Organisation and Centre on Housing Rights and what steps it will take to implement the decisions Human and People’s Rights, Covering the Period from Novem- bly, association and movement.”110 Evictions (COHRE) v. Sudan, Comm. Nos. 279/03 & 296/05 (2009) ber 14, 2018 to May 14 2019’’ para 21
A WAY FORWARD? 26 Anti-torture reforms in Sudan in the post-Bashir era 27 rican Charter and other relevant international human gation, as required by article 1, particularly if read Compensation rights instruments.”111 In addition, in Sudan Human in conjunction with article 5 of the Charter.”116 How- Rights Organisation and Centre on Housing Rights ever, “to effectively discharge itself from responsi- Compensation is an essential remedy for victims. and Evictions (COHRE) v. Sudan, the ACHPR conclud- bility, it is not enough to investigate.”117 The ACHPR While, the ACHPR has referred to it alongside resti- ed that Sudan should “desist from adopting amnesty stressed that: tution as measures that Sudan has to take towards laws for perpetrators of human rights abuses.”112 victims,121 it has done so inconsistently.122 Where in- States are under an obligation not only to make dividual reparations have been recommended, this Immunities sure that torture is absolutely prohibited in their has usually been unspecified, calling Sudan to “pay legislation, but also in practical terms. Where adequate compensation”123 or to “take appropriate The ACHPR considered the issue of immunities in a torture is allegedly inflicted and this is brought measures to ensure compensation.”’124 Yet, Sudan number of cases against Sudan, finding that immu- to the attention of the State, it is also under an has not provided any compensation to victims of nities are incompatible with the right to an effective obligation to initiate a prompt, impartial and- ef torture involved in the decided cases. remedy under the African Charter and concluded that fective investigation in order to determine the Sudan’s legal system does not provide effective rem- veracity of the allegations and to bring the per- Training security officers regarding edies for victims of human rights violations’.113 The petrators to justice.118 torture ACHPR has mentioned the issue of immunities fre- quently in the most recent cases, using it as a basis for To this end, in various cases, the ACHPR has recom- With respect to torture, the ACHPR has requested determining the impossibility of exhausting domestic mended that Sudan “conducts effective official in- the Sudanese government to: “train security officers remedies, but has not made any recommendations vestigations into the abuses, committed by members on relevant standards concerning adherence to cus- on the topic.114 The issue of immunities has resulted of military forces, i.e. ground and air forces, armed todial safeguards and the prohibition of torture”,125 in an almost complete lack of prosecutions of torture groups and the Janjaweed militia for their role in the in line with the Robben Island Guidelines.126 cases even where credible evidence was available.115 Darfur;”119 and “takes steps to prosecute those re- sponsible for the human rights violations, including Duty to investigate and punish murder, rape, arson and destruction of property.”120
In its most recent case, decided in 2014 in relation to Sudan, the ACHPR found that Sudan “failed in its 121 Sudan Human Rights Organisation & Centre on Housing positive obligation to carry out an effective investi- Rights and Evictions (COHRE) v. Sudan, Comm. Nos. 279/03- 296/05 (n 80) para 229 (4). 122 Law Offices of Ghazi Suleiman / Sudan, Comm. No. 228/99 111 Curtis Francis Doebbler v Sudan, Comm. No. 236/00 (n 76); (n 75). Abdel Hadi, Ali Radi & Others v Republic of Sudan, Comm. No. 116 Monim Elgak, Osman Hummeida and Amir Suliman (repre- 123 Abdel Hadi, Ali Radi & Others v Republic of Sudan, Comm. 368/09 (n 77) para 93 (ii) (c). sented by FIDH and OMCT) v Sudan, Comm. No. 379/09 (2014) No. 368/09 (n 77) para 93(ii)(a); Monim Elgak, Osman Hummei- 112 Sudan Human Rights Organisation & Centre on Housing (n 78) para 92. da and Amir Suliman (represented by FIDH and OMCT) v Sudan, Rights and Evictions (COHRE) v. Sudan, Comm. Nos. 279/03- 117 Sudan Human Rights Organisation & Centre on Housing Comm. No. 379/09 (2014) (n 78) para 142(iii)(a). 296/05 (n 80) para 229 (7). Rights and Evictions (COHRE) v. Sudan, Comm. Nos. 279/03- 124 Frans Viljoen and Chidi Odinkalu, ‘The Prohibition of Tor- 113 Redress, ACJPS, ‘Submission to the All-Parliamentary Group 296/05 (n 80) para 150. ture and Ill-Treatment in the African Human Rights System: A on Sudan and South Sudan on the Prohibition of Torture and 118 Monim Elgak, Osman Hummeida and Amir Suliman (repre- Handbook for Victims and Their Advocates’
A WAY FORWARD? 28 Anti-torture reforms in Sudan in the post-Bashir era 29 SUMMARY OF THE AFRICAN COMMISSION’S CASES Law Office of Ghazi Suleiman / Sudan, Comm. No. 228/99 (2003)129
Amnesty International, Comité Loosli Bachelard, Lawyers’ Committee for Human Facts A Sudanese lawyer and activist prohibited from giving a lecture and subjected to threats, Rights, Association of Members of the Episcopal Conference of East Africa / Sudan, arrests and attacks several times. Comm. Nos. 48/90-50/91-52/91-89/93 (1999) Articles violated 6 (liberty), 9 (freedom of expression), 10 (freedom of association), 11 (freedom of assembly) and 12 (freedom of movement). Facts Hundreds of lawyers, members of opposition and human rights defenders detained without trial or charge after the coup on 30 July 1989 and subjected to ill-treatments and Legislative and “Amend its existing laws to provide de jure protection of the human rights to freedom of torture in prisons and ghost houses. Judicial reforms expression, assembly, association and movement.”130
Articles violated 2 (non-discrimination), 4 (right to life), 5 (torture), 6 (liberty), 7(1)(a) (right to appeal), (c) (right to defence), (d) (tried within a reasonable time), 8 (freedom of religion), 9 (freedom of expression), 10 (freedom of association) and 26 (independence of the courts). Curtis Francis Doebbler/Sudan, Comm. No. 236/00 (2003)130131 Legislative and The Commission recommended ‘strongly to the Government of Sudan to put an end to Judicial Reforms these violations in order to abide by its obligations under the African Charter.’ 127 Facts Eight student women convicted and sentenced to fines or lashes because they were not It identified specific domestic legislation that enabled the violations; however, it did not properly dressed or acting in a manner considered being immoral. request any change in the new Sudanese legislation. Articles violated 5 (torture).
Legislative and “Immediately amend the Criminal Law of 1991, in conformity with its obligations under Law Office of Ghazi Suleiman / Sudan, Comm. Nos. 222/98-229/99 (2003)127128 Judicial reforms the African Charter and other relevant international human rights instruments; Abolish the penalty of lashes…”131 Facts 29 civilians accused of terrorism were arrested, detained and subjected to torture. Compensation “Take appropriate measures to ensure compensation of the victims.” 132 Articles violated 5 (torture), 6 (liberty) and 7(1) (fair hearing).
Legislative and … “to bring its legislation in conformity with the African Charter”128 Judicial reforms Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) / Sudan, Comm. Nos. 279/03-296/05 (2009) Compensation … “to duly compensate the victims”129
Facts Massive and systematic human rights violations including torture carried out by security and paramilitary forces against the indigenous Black African tribes in Darfur.
Articles violated 4(right to life), 5 (torture), 6 (liberty), 7 (fair trial), 12(1) (freedom of movement), 14 (right to property), 16 (health), 18(1) (family) and 22 (right to development).
129 Law Offices of Ghazi Suleiman / Sudan, Comm. No. 228/99 (2003), ‘Holding’. 127 Law Office of Ghazi Suleiman / Sudan, Comm. Nos. 222/98-229/99 (2003), ‘Holding’ 130 Curtis Francis Doebbler/Sudan, Comm. No. 236/00 (2003), ‘Holding’ 128 Ibid. 131 Ibid.
A WAY FORWARD? 30 Anti-torture reforms in Sudan in the post-Bashir era 31 Legislative and “undertake major reforms of its legislative and judicial framework in order to handle cases Legislative and “Where appropriate, amend the legislation incompatible with the Charter”141 Judicial reforms of serious and massive human rights violations”133 Judicial reforms “desist from adopting amnesty laws for perpetrators of human rights abuses”134 Duty to “Initiate an effective and impartial investigation into the circumstances of arrest -and de investigate and tention and the subsequent treatment of the Complainants”142 Duty to investi- … “conduct effective official investigations into the abuses, committed by members ofmil- punish gate and punish itary forces, i.e. ground and air forces, armed groups and the Janjaweed militia for their role in the Darfur”135 Compensation “pay adequate compensation to the victims named in the present Communication in “take steps to prosecute those responsible for the human rights violations, including mur- accordance with the domestic law for the rights violated” 143 der, rape, arson and destruction of property”136 Other “train security officers on relevant standards concerning adherence to custodial safe- Compensation “to ensure that the victims of human rights abuses are given effective remedies, including guards and the prohibition of torture” 144 restitution and compensation” 137
Other “rehabilitate economic and social infrastructure, such as education, health, water, and 140141142143144145146 agricultural services, in the Darfur provinces in order to provide conditions for return in safety and dignity for the IDPs and Refugees” 138 Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v “establish a National Reconciliation Forum to address the long-term sources of conflict, equitable allocation of national resources to the various provinces, including affirmative Sudan, Comm. No. 379/09 (2014) action for Darfur, resolve issues of land, grazing and water rights, including destocking of livestock”139 Facts Three human rights defenders arrested and detained because accused of spying on be- 140 … “consolidate and finalise pending Peace Agreements.” half of the ICC, and who left the country thereafter.
Articles violated 1(recognition of rights in the charter), 5 (torture), 6 (liberty), 9 (freedom of expression), 132133134135136137138139 10 (freedom of association), 12 (freedom of movement), 15 (work under equitable con- ditions) and 16 (health). Abdel Hadi, Ali Radi & Others v Republic of Sudan, Comm. No. 368/09 (2013) Duty to “Investigate and prosecute all those persons who participated in the illegal incarceration investigate and and torture of the Complainants”145 Facts 88 IDPs from Darfur arbitrary arrested, held in incommunicado detention during 12 punish months and subjected to torture after the police tried to relocate families in the IDPs camp. Compensation “Pay adequate compensation to the Complainants named in the present Communication in accordance with the domestic law of The Sudan for the rights violated”146 Articles violated 1 (recognition of rights in the charter), 5 (torture), 6 (liberty) and 7(1) (c) (d) (right to de- fence and tried within a reasonable time). Other … “Reopen and unfreeze the bank accounts of [the victim]”147
132 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) / Sudan, Comm. Nos. 279/03-296/05 (2009), para. 229(2) 133 Ibid, para. 229(7) 140 Abdel Hadi, Ali Radi & Others v Republic of Sudan, Comm. No. 368/09 (2013), para. 93(ii)(c) 134 Ibid, para. 229(1) 141 Ibid, para. 93(ii)(b) 135 Ibid, para. 229(3) 142 Ibid, para. 93(ii)(a) 136 Ibid, para. 229(4) 143 Ibid, para. 93(ii)(d) 137 Ibid, para. 229(5) 144 Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v Sudan, Comm. No. 379/09 (2014), para. 142 138 Ibid, para. 229(6) 145 Ibid. 139 Ibid, para. 229(8) 146 Ibid.
A WAY FORWARD? 32 Anti-torture reforms in Sudan in the post-Bashir era 33 VI. WAY FORWARD: PRIORITIES FOR LEGAL DOMES- TIC REFORMS
The 2019 Constitutional Declaration adopted several measures protecting basic human rights and freedoms and paving the way for institutional reforms. Chapter 14 of the Constitutional Declaration states that “All rights and freedoms contained in international hu- man rights agreements, pacts, and charters ratified by the Republic of Sudan shall be considered an inte- gral part of this document.”147 It also provides for the prohibition of torture declaring that “No one may be subjected to torture or harsh, inhumane, or degrad- ing treatment or punishment, or debasement of hu- man dignity.” However, “torture” is not defined in the Constitutional Declaration, and the Criminal Act 1991 does not contain a criminal offence of torture. Instead, torture is limited only to circumstances influencing the course of justice and not as a violation in itself.148
Further, the NISS was renamed as the General Intel- ligence Service (GIS), and its powers of arrest appear to have been limited.149 It is not clear whether the GIS will be subject to other reform programs out- lined in the Constitutional Declaration.
147 Constitutional Declaration 2019 (n 10), Article 41(2). 148 ibid, Article 50. 149 Sudan News Agency, ‘Sudan: Restructure of Security Service Was Fulfillment to Military Men’s Pledges - Experts’allAfrica.com (26 August 2019)
A WAY FORWARD? 34 Anti-torture reforms in Sudan in the post-Bashir era 35 As outlined earlier in this report, these reforms are seen merely as an aspect of interference with pro- provides an arrested individual should be brought does not exist, to ensure the right to habeas corpus, not sufficient to address decades of the pervasive ceedings and not as a violation of the basic rights of promptly before a competent judicial authority. Fur- amparo or similar procedures.161 use of torture, requiring additional reforms. This the survivor or victim. ther, the 2010 National Security Act allows for de- chapter will set out the priorities for reform regard- tention of suspects up to a total of four and a half Recommendations ing Sudan’s existing domestic legal framework in -or Recommendations months without judicial review.159 der to make it compatible with Sudan’s international Enact a right of habeas corpus in domestic legisla- obligations on the prohibition of torture. Where pos- Criminalize torture, including a definition of the Recommendations tion, in accordance with the Principles and Guide- sible, we have taken into consideration the new Con- crime that is in accordance with the UNCAT. lines on the Right to a Fair Trial and Legal Assistance stitutional Declaration, which provides that “laws Amend the CPA 1991 to comply with the standards in Africa and other international instruments. that contradict the provisions of this Constitutional Safeguards of review under the Principles and Guidelines on Declaration shall be repealed or amended to the ex- the Right to a Fair Trial and Legal Assistance in Afri- Right to Legal Representation tent necessary to remove the contradiction”,150 and There are existing safeguards under the Criminal ca and other international standards. which mandates the repeal of “laws and provisions Procedure Act (CPA) 1991, including, inter alia, Article 51(6) of the Constitutional Declaration pro- that restrict freedoms or that discriminate between judicial review of detention, criminalization of un- Right to Habeas Corpus vides that: citizens on the basis of gender.”151 lawful detention, rights to legal representation, the right to inform family and friends, the right Sudanese law lacks an effective remedy to challenge The Accused shall have the right to defend him- All the legislation included in the analysis below has to be informed of charges,153 and a range of other the legality of detention. The only remedy current- self personally or via an attorney he selects. He been taken from the resources of the Project for entitlements for detainees.154 But these rights are ly available is under Article 165 of the Criminal Act shall have the right to be provided legal assis- Criminal Law Reform in Sudan.152 often ignored.155 1991, which criminalises unlawful detention. Under tance by the state when he is unable to defend Article 165, a lawyer may petition a prosecutor to himself in crimes of extreme gravity.162 Priorities for reform are identified across three the- Period of Detention without Judicial Review issue an order for immediate release of the person matic areas: 1) prevention of torture; 2) accounta- who has been illegally detained by the police and for Under Article 83(3) of the CPA 1991163, the arrested bility for torture; and 3) remedies and reparation for Under the CPA 1991, police may hold a person in the institution of criminal proceedings against the person has the right to contact an advocate. victims of torture. custody for twenty-four hours.156 However, after responsible official.160 Furthermore, Article 16 (1) (c) twenty-four hours, the Prosecution Attorney may -re of the Constitutional Court Act gives the Court the However, neither law requires the presence of a law- new the detention for a period of up to three days.157 power to pass a writ of habeas corpus to anybody yer during the initial interrogation and in practice, PREVENTION OF TORTURE Extension of the detention beyond this requires a for the purpose of considering the constitutionality rarely are those arrested allowed access to a lawyer Magistrate’s approval, who may renew the deten- of the detention. at this stage.164 The definition of torture tion for a period of two weeks.158 The requirement to produce the detainee before an independent judge The right to challenge detention is a fundamental Further, the Article 34 (6) of Sudan 2005 Constitution The Criminal Act 1991 does not contain a criminal only four days after the initial arrest is too long a pe- right of detainees under their right to liberty and refers to legal aid only at the time of representation offence of torture in line with the internationally riod of permissible detention without approval by a security (recognised under Article 45 of the Consti- in trial, and only in cases involving ‘crimes of extreme recognised standard contained within Article 1 of judge and violates international law standards that tutional Declaration). Accordingly, a right of habeas gravity’. It is necessary to ensure that suspects and UNCAT. Under Article 115 of the Criminal Act 1991, corpus must be explicitly recognised under the do- individuals arrested have access to a lawyer at the the offence of torture is limited to circumstances ‘in- 153 Criminal Procedure Act 1991, Art.72 < http://www.pclrs. mestic law. Under the Principles and Guidelines on time of arrest.165 Implementing the right to a lawyer fluencing the course of justice.’ Therefore, torture is com/english/bills-and-laws> accessed 17 October 2019 the Right to a Fair Trial and Legal Assistance in Afri- 154 ibid, Article 83 ca, States are required to enact legislation, where it 161 African Commission, ‘Principles and Guidelines on the Right to 155 ‘Concluding Observations and Recommendations on the 4th a Fair Trial and Legal Assistance in Africa’ para 5
A WAY FORWARD? 36 Anti-torture reforms in Sudan in the post-Bashir era 37 at this stage allows the person arrested access to le- Record of Interrogations as possible after detention.167 A mandatory medical Council.169 Extraordinarily, there is no right to appear gal remedies against arbitrary detention, prevents examination of all arrested persons would help to before a judge in this period. Given that there is no enforced disappearance and torture and minimises Sudanese domestic law does not stipulate for a -re curtail unchecked torture practices. Furthermore, it right of habeas corpus, this is a serious infringement the risk of harm being caused during the detention. cord of interrogations. The Robben Island Guidelines would address the problems of lack of proof survivors of the right to personal liberty of a detainee.170 provide that States should: face when attempting to prosecute cases of torture. Recommendations Article 51 of the NSA 2010 specifies the rights of the 28. Ensure that comprehensive written records of all Recommendations detainee in custody. Under Article 51(2), the right of Amend Article 83 (3) of the CPA 1991 to specify the interrogations are kept, including the identity of all the detainee to communicate with their family or right to access legal representation at the initial persons present during the interrogation and con- Amend the CPA 1991 to ensure that proper med- advocate is conditional on the communication not stage of interrogation, access to legal aid if the ar- sider the feasibility of the use of video and/or audio ical examinations are conducted following deten- prejudicing the progress of interrogation, enquiry rested person cannot afford a lawyer and the right tape recordings of interrogations.166 tion in line with the UN Standard Minimum Rules or investigation. This condition is highly problematic to be informed of this at the time of arrest. for the Treatment of Prisoners and other applica- and is a major derogation of basic rights of detainees Implementing such a measure would facilitate trans- ble instruments. under international law. Right to Inform Family or Friends parency in detention practices and the development of a culture of eliminating torture. The National Security Act 2010 As is the case with the CPA 1991, a mandatory med- Article 83(5) of the CPA 1991 provides the arrested ical examination of the arrested person must be person with the right to inform their family or em- Recommendations As set out in detail above, the Constitutional Decla- conducted as soon as possible after the person is de- ployer of their arrest, subject to the approval of the ration renamed the NISS to GIS, limited its powers of tained, to serve as a check against torture. Prosecution Attorney or the Court. The requirement Enact domestic legislation ensuring that compre- arrest and detention, and called for legal reform in of permission under this right is problematic and hensive written records of all interrogations are line with human rights obligations. Recommendations should be removed. In practice, detainees are not kept in line with the Robben Island Guidelines. allowed access to their relatives or friends. The NSA 2010, in its current form, has further dilut- In line with the commitment to reform the NISS Right to medical examination ed the already inadequate protections set out above under the Constitutional Declaration, the NSA 2010 The right to have family or friends informed of the under the CPA 1991. Under the NSA 2010, judicial re- should be amended to: arrest is critical under international law: it ensures A major gap in the procedural safeguards provided view of an arrest can be delayed up to four and a half that the family is aware of where the person ar- under Sudanese domestic law is the lack of access to months. The procedure for detention of a person is Ensure that the arrested person be brought be- rested is being detained. Furthermore, it allows the a doctor or medical examination. Article 83(1) of the specified under Article 50 of the Act. fore an independent magistrate within 24 hours family to pursue legal remedies on behalf of the de- CPA 1991 provides that the arrested person shall not of arrest. tainee, challenging the detention in question or the be harmed, and that appropriate medical care shall In brief, the NSA 2010 provides for an initial deten- treatment being meted out to the person. The per- be provided. However, there is no guidance on what tion not exceeding more than 30 days, providing that Remove any conditions on the right of the ar- son arrested should also be informed of this right at constitutes appropriate care. In addition, Article 49, the immediate relatives of the arrested person are rested person to communicate with the family the time of arrest. provides for medical examination only for the pur- informed.168 The NSA Director may then extend the or an advocate. poses of ascertaining the commission of an offence. detention for no more than 15 days with the- pur Recommendations pose to complete and investigation, and in certain Ensure medical examination of all detainees in The UN Standard Minimum Rules for the Treatment cases for a further three months on approval of the line with the UN Standard Minimum Rules for Amend Article 83(5) of the CPA 1991 to remove the of Prisoners require a medical examination as soon the Treatment of Prisoners and other applicable requirement of approval of the Prosecution Attor- instruments. ney or the Court before informing family or em- 167 ‘UN Standard Minimum Rules for the Treatment of Prison- ployer of the arrest and to require that the arrested 166 ‘Resolution on Guidelines and Measures for the Prohibition ers (SMR)’ para 24
A WAY FORWARD? 38 Anti-torture reforms in Sudan in the post-Bashir era 39 Guarantee that comprehensive written records (2) The court may, when it considers it appropri- The punishment for torture is extremely lenient and Include adequate and proportionate punishments of all interrogations be kept, including possible ate for the realisation of justice, refrain from con- thus is not an effective deterrent against inflicting for the offence of torture. video and audio recordings. victing on the basis of the evidence mentioned in torture. Moreover, allowing a fine to be imposed paragraph (1) unless it is corroborated by other in lieu of punishment is wholly inadequate and Statute of Limitations Evidence obtained by torture evidence.175 non-compliant with international law. The two-year limitation period to commence judicial Evidence obtained by torture must be inadmissible Recommendations There are other Articles in the Criminal Act 1991 that proceedings attached to Article 115 of the Criminal under international law. The underlying purpose of could potentially be used to hold accountable officials Act 1991 is another cause for concern. Considering this is to disincentivise torture. Amend Article 10 of the 1994 Act to clearly speci- responsible for torture. These include offences for: the fear that any survivor would experience when fy that confessions extracted under torture are in- complaining against a state official, this limitation Article 20(2) of the 1994 Evidence Act states that a admissible and ensure that the prosecution bears • causing intentional wounds;176 must be removed, in recognition of the absolute pro- confession will not be valid if it “was the result of the burden of proving that an impugned confession hibition of torture under international law. coercion or inducement”.171 However Article 20(3) was not obtained by torture. • causing hurt with the intention of drawing a con- goes on to state that “despite the provision of clause fession;177 Period of limitation of the criminal suit (2), inducement does not affect the validity of con- fession in matters of transactions.”172 ACCOUNTABILITY FOR TORTURE • against criminal force;178 and, 38. (1) No criminal suit shall be initiated in of- fences having ta’zir penalties, where the period Further, Article 10 of the 1994 Act affords the court The criminalization of torture • against intimidation.179 (Article 144) which would of limitation has elapsed, commencing from the discretion in determining whether the confessions punish the use of force or the threat of use of date of occurrence of the offence, namely: can be admitted, if other evidence corroborates it. In The Criminal Act 1991 restricts the criminal offence force.180 practice, the courts have repeatedly admitted con- of torture to situations of interrogation in relation to (a) ten years in any offence the commission of fessions obtained under torture.173 The former Con- the provision of information. The punishment for these crimes ranges from six which is punishable with death, or imprisonment stitutional Court repeatedly rejected allegations by months to five years.181 Since the maximum sentence for ten years, or more; defendants that the confessions had been extracted Article 155(2) of the Criminal Act 1991 states: is five years (and only for intentional infliction of spe- under duress.174 Article 10 states that: cific types of wounds), these punishments are likely (b) five years in any offence the commission of Every person who, having public authority en- to not be proportional to the gravity of the conduct which is punishable with imprisonment for more (1) Bearing in mind the provisions of confession tices, or threatens, or tortures any witness (sic), and have a weak deterrent effect. than one year; and inadmissible evidence, the evidence shall or accused, or opponent to give, or refrain from not be ruled inadmissible solely because it was giving any information in any action, shall be Recommendations (c) two years in any other offence. obtained through an invalid procedure provided punished, with imprisonment, for a term, not ex- that the court is satisfied that it is independent ceeding three months, or with fine, or with both. Amend the Criminal Act 1991 to define torture in (2) The running of the limitation period shall and acceptable; line with the internationally recognised definition cease whenever the criminal suit is initiated.182 Under Article 115 of the Criminal Act 1991, the of- contained in Article 1 of UNCAT. fence of torture is limited to circumstances “influ- Recommendations encing the course of justice.” Therefore, torture is seen merely as an aspect of interference with pro- Remove any statutes of limitations for the offence 171 The Evidence Act 1994, Article 20. ceedings and not as a violation of the basic rights of 176 Criminal Act 1991, Articles 138 and 139. of torture. 172 ibid. the survivor or victim. 177 ibid, Article 142. 173 ‘National and International Remedies for Torture’ (n 45). 178 ibid, Article 143. 174 Ahmed (n 22); Paul John Kaw and others v (1) Ministry of 179 ibid, Article 144. Justice; (2) Next of kin of Elreashhed Mudawee, Case No MD/ QD/51/2008, Judgment of 13 October 2009 (Constitutional 180 ibid, Articles 138, 139, 142, 143, 144. Court). 175 The Evidence Act 1994, Article 10. 181 ibid, Article 139-144 182 Criminal Procedure Act, 1991, Article 38.
A WAY FORWARD? 40 Anti-torture reforms in Sudan in the post-Bashir era 41 Immunities Police Forces Act 2008 as discussed above188, dismissed the need for au- within official duty. Measures must be established thorization to prosecute for that same reason. to manage the discretion: providing a time limit In practice, immunities are the main obstacle to ac- Under the Police Forces Act 2008, Article 45 pro- within which the decision must be taken; outlining countability of law enforcement officials. Police -of vides protection for actions taken by police officers The problem of immunities is exacerbated by the the criteria on the basis of which such a decision ficers, as well as members of the NISS (GIS, under in good faith as part of their job functions. Remark- lack of regulation of the authorisation process. must be made; providing reasons for approval or the 2019 Constitutional Declaration) and the armed ably, any action against a police officer requires the There is no procedure to determine when and how refusal; providing a procedure for judicial review of forces are granted conditional immunity for any act permission of the Minister or a person delegated the authorisation can be given; no criteria that the such a decision; and defining the judicial standard done in the course of their duties, which can only be by the Minister. Therefore, even if the scope of the head official can consider in lifting immunities; and, in cases of such review.190 lifted by the respective head of the forces. These im- substantive immunity is small, the procedural barrier no timeframe, procedure or standards for judicial re- munity provisions largely equate with impunity and remains in clause 2 (mandating authorisation before view of the exercise of discretion in such cases. are contrary to international law.183 any action is taken). In practice, most cases involve either the authori- REMEDIES AND REPARATION Under the 2019 Constitutional Declaration, immu- Armed Forces Act 2007 sation being refused or the file remaining pending FOR VICTIMS OF TORTURE nity is provided from criminal procedures against with the head official in question.189 Since there is Compensation “any members of the Sovereignty Council, Cabinet, Similarly, under Article 42 of the Armed Forces Act no timeframe for the decision to be made, these Transitional Legislative Council or governors of prov- 2007, action against officers of the Military can be -tak cases remain indefinitely delayed with no recourse Under Sudanese domestic law there are three mech- inces/heads of regions without receiving permission en only with the approval of the Commander in Chief. against this. Indeed, the greatest difficulty lies in anisms that a victim of torture could theoretically to lift immunity from the Legislative Council.”184 This even commencing the investigation against any offi- use to receive compensation: confers immunity on Mohamed Hamdan Dagalo, or National Security Act 2010 cial of the state. “Hemeti,” who is the head of the Rapid Support Forc- • Through civil litigation – the survivor of torture (or es (RSF) and General Burhan’s deputy. By all accounts, The NSA 2010, under Article 52, asserts that any Recommendations the family of the victim) can claim compensation the RSF has led most of the attacks on protesters civil or criminal proceedings against any member or in a civil proceeding under tort law, as damages for since April 2019. Immunity can be waived by a simple associate of the NISS require the permission of the Remove immunity for officials accused of serious trespass against the person under Article 153(1) of majority of members of the Legislative Council.185 director. This approval may be granted if the subject human rights violations by repealing the provisions the Civil Transaction Act of 1984.191 However, im- of accountability is not related to official business. concerned. Such step would pave the way for Su- munities also apply in civil proceedings – the suit In Sudan’s domestic legislation, under Article 35(c) of Clause 3 provides that such proceedings take place dan’s authorities to effectively investigate allega- against the officials can proceed only after acquir- the Criminal Procedure Act, no criminal suit can be before a closed criminal court. tions of torture and other serious human rights vi- ing the requisite permission of the head official; initiated against any person enjoying procedural or olations past and present, and to prosecute those substantive immunity, save in accordance with the These laws do not prohibit action against an official against whom sufficient evidence is available. • Through a fine under criminal law –the Criminal provisions of such law as may provide therefore.186 for inflicting torture. However, in procedural terms, Act 1991 incorporates the right of compensation they require the permission of the head officer in Overhaul the current system of immunities to en- within criminal proceedings. Article 34 of the Immunities are provided for police officers under the each institution to sanction proceedings against the sure they are compatible with Sudan’s obligations Criminal Act 1991 details the imposition of a fine, Police Forces Act 2008; for the military under the official responsible. It is this procedural barrier that under international law and the 2019 Constitution- which may be paid in whole or part as compensa- Armed Forces Act 2007 and for the National Security creates problems in initiating actions against officials al Declaration. New laws should require no prior tion for a person aggrieved of the offence;192 and Services under the NSA2010. responsible for torture. Notwithstanding its applica- authorisation to investigate and prosecute torture. tion in practice, the law itself should not be read to In other cases, an independent judicial body, as provide immunity as torture is not a part of the of- opposed to the head officer of the forces, should 190 ‘Human Rights Concerns and Barriers to Justice in Sudan: 183 ‘Human Rights Concerns and Barriers to Justice in Sudan: National, Regional and International Perspectives - A Compilation 187 National, Regional and International Perspectives - A Compilation ficial duty of these officers. Indeed, the Sudanese make the determination of whether the action fell of Sudan Law Reform Advocacy Briefings’ ss I–III. of Sudan Law Reform Advocacy Briefings’ (n 34). domestic courts themselves have in rare occasions, 191 The Civil Transaction Act 1984, Article 153. 184 Constitutional Declaration (n 10), Article 21(1).
A WAY FORWARD? 42 Anti-torture reforms in Sudan in the post-Bashir era 43 • Through diya under Islamic law – diya is compen- This raises a related problem in ensuring accountabil- sation that may be paid in financial or material ity. Article 115(2) of the Criminal Act 1991 provides terms in cases of death or injury to the survivor for protection of witnesses from harm.196 Article 4(e) VII. SUMMARY OF or the family of the victim.193 However, because of of the CPA 1991 states that a guiding principle of the the lack of prosecutions and the procedural hur- Act is the prohibition of prejudice to witnesses.197 RECOMMENDATIONS dles engendered by immunities provisions, there However, there is no program designed to protect have been very few successful claims for com- survivors, families of victims or witnesses. pensation. Within the few prosecutions that have This section summarizes the key recommendations a. The Constitution of Sudan been documented,194 the amount of compensa- An important remedy would be ensuring a specif- made throughout this report for Sudan to comply • The Constitution of Sudan should include a tion has been low. In other cases, there have been ic right to reparation for being subjected to torture with its international obligations to prevent torture, definition of torture in line with the UNCAT. out of court settlements. Often, the survivors or under the law. This should exclude statute of limi- investigate and prosecute instances of torture and • It should Include a right of habeas cor- families prefer receiving money, instead of facing tations for allegations made as well. It should also realize the victims’ right to effective reparations. pus, in accordance with the Principles and the uncertainty and difficulty of trial. consider the difficulties in providing evidence of -tor Guidelines on the Right to a Fair Trial and ture when developing the standard of proof neces- 1. Sudan must ratify the following treaties: Legal Assistance in Africa. Unfortunately, the current system on compensation sary to be successful. fails to meet international standards as it prevents ac- • The UNCAT, and its Optional Protocol. b. The Criminal Act 1991 countability of the perpetrators and fails to serve as a Recommendations • The 1st and 2nd Protocols to the International • Amend Article 115 clause 2 to define torture deterrent against future instances of torture. The pay- Covenant on Civil and Political Rights. in line with the definition under the UNCAT; ment in such settlements is usually done by the state, Enact legislation including a specific right to repa- • The UN Convention for the Protection of All • Provide proportional punishments for tor- and thus there is no deterrent impact on the individu- ration for being subjected to torture, and make any Persons from Enforced Disappearance. ture and ill-treatment, including in general al officers responsible for the torture in question. other legal and policy reforms needed to realize the • The Protocol to the African Charter on Human provisions under the Penal Code (Articles right of victims to effective reparations. and Peoples’ Rights on the Establishment of an 138, 139, 142, 143, 144, 164 and 165). Even attempting to launch a civil proceeding for com- African Court on Human and Peoples’ Rights • Amend Article 115 to remove the statute pensation can cause great adversity for the survivors • The UN Convention on the Elimination of All of limitations to initiate a criminal com- or families. They are at a disadvantage in producing Forms of Discrimination Against Women. plaint in cases of torture. the evidence required, especially in the absence of • Maputo Protocol on the Rights of Women in any criminal investigation. In addition, they often Africa.- c. The Criminal Procedure Act, 1991 face threats and harassment, with no protection • The Rome Statute of the International Crimi- • Amend Articles 77 and 79(2) to ensure that provided by the state to guard against these risks.195 nal Court. the judicial review is conducted by a judge. • Include the standards of review under the 2. Sudan must engage with institutional prevention Principles and Guidelines on the Right to a and monitoring processes as set out in the Op- Fair Trial and Legal Assistance in Africa. tion Protocol to the UNCAT and the Robben Is- • Amend Article 83(3) to specify the right to 193 Criminal Act 1991: Judgment of diya: land Guidelines. access legal representation at the initial 43. The court shall pass judgment of diya in accordance with the stage of interrogation, access to legal aid if Schedule II hereto, in any of the following cases: (a) in murder and intentional wounds, if retribution (qisas) is 3. Sudan must reform the following domestic laws to the arrested person cannot afford a lawyer remitted; bring them in line with its international obligations, and the right to be informed of this at the (b) in semi-murder and semi intentional wounds; (c) in homicide and wounds caused by negligence; as well as to address the rights of torture survivors. time of arrest. (d) in homicide and wounds caused by a minor, or indiscriminate • Amend Article 83(5) to remove the require- person. ment of approval of the Prosecution Attor- 194 See pages 14-15 above. 196 Criminal Act 1991, Article 115. 195 ‘National and International Remedies for Torture’ (n 45). 197 Criminal Procedure Act 1991, Article 4. ney or the Court before informing family of
A WAY FORWARD? 44 Anti-torture reforms in Sudan in the post-Bashir era 45 the arrest, and to require that the arrested g. Evidence Act 1994: person be informed of this right. • Amend Article 10 to clearly specify that • Include a mandatory medical examination confessions extracted under torture are in- of the arrested person within 24 hours of admissible. the arrest. • Include procedures for recording interro- 4. Finally, Sudan should conduct the following insti- gations, either written or in taped audio/ tutional reforms: video recordings. • Ensure the independence of the judiciary. d. Police Forces Act 2008 • Ensure the independence of the National Hu- • Delete clause 2 of Article 45 in order to man Rights Commission. remove the immunities provided to mem- • Spread awareness of the right to complain bers of the police forces. against violations by state officials. • Provide legal representation to those who can- e. Armed Forces Act 2007 not afford the services of a lawyer. • Delete clause 2 of Article 42 in order to • Develop a comprehensive programme of pro- remove the immunities provided to mem- tection for victims and witnesses. bers of the military. • Adopt all other legal and policy reforms need- ed to realize the right to reparations for tor- f. National Security Act 2010 ture survivors. • Delete clauses 1, 3, 4, 5 and 6 of Article 52 in order to remove the immunities provid- ed to members of the NISS. • Amend Article 50 to require that the arrest- ed person be brought before an independ- ent magistrate within 24 hours of arrest. • Amend Article 51 Clause 2 to remove any conditions on the right of the arrested per- son to communicate with the family or an advocate. • Include a mandatory medical examination within 24 hours of arrest.
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