The Constitutional Protection of Human Rights in Sudan: Challenges and Future Perspectives

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The Constitutional Protection of Human Rights in Sudan: Challenges and Future Perspectives The Constitutional Protection of Human Rights in Sudan: Challenges and Future Perspectives January 2014 1 Table of Contents I. Introduction .................................................................................................................................... 4 II. The Constitutional Protection of Human Rights in Sudan .............................................................. 7 1. The Constitutional Bill of Rights in the Sudan: Towards Substantive Guarantees and Effective Realisation of Rights (Amin M. Medani) ............................................................................................. 7 1.1. Introduction ............................................................................................................................ 7 1.2. The Comprehensive Peace Agreement and the Interim National Constitution ..................... 8 1.3. A critical analysis of the Bill of Rights ...................................................................................... 9 1.4. Conclusion ............................................................................................................................. 12 2. Why Constitutional Bills of Rights fail to protect Civil and Political Rights in Sudan: Substantive Gaps, Conflicting Rights, and ‘Arrested’ Reception of International Human Rights Law (Mohamed Abdelsalam Babiker) ......................................................................................................................... 14 2.1. Introduction .......................................................................................................................... 14 2.2. Civil and Political Rights in the Interim National Constitution: Substantive Shortcomings .. 15 2.3. The Reception and ‘Domestication’ of International Human Rights Norms through the ‘Monism’ or ‘Dualism’ Theories of International Law: A Dilemma .................................................. 25 2.4. Derogations from Human Rights Treaties in Times of Emergency: Sudan’s de facto Constitution ...................................................................................................................................... 27 2.5. Implementation Mechanisms and Constitutional Guarantees: A Dichotomy between Law and Practice ...................................................................................................................................... 28 2.6. Conclusion ............................................................................................................................. 31 3. Economic, Social and Cultural Rights Under the Constitutional Bill of Rights in the Sudan (Ahmed Abdelgadir Ahmed) ............................................................................................................. 32 3.1. Introduction .......................................................................................................................... 32 3.2. The Binding Effect of the Bill of Rights .................................................................................. 33 3.3. The Recognition of Economic, Social and Cultural Rights in Sudan’s Constitutions, with particular reference to the INC ......................................................................................................... 34 3.4. Conclusion ............................................................................................................................. 40 2 4. Women’s Rights in the Constitutional Bill of Rights: Issues of Status, Equality and Non- Discrimination (Ebtisam Sanhouri Elrayh) ........................................................................................ 42 4.1. Introduction .......................................................................................................................... 42 4.2. Women’s Cause: Separate v Integrated Debate ................................................................... 43 4.3. Women’s Rights in Sudan: Human Rights Conventions vis-à-vis the Constitution ............... 47 4.4. Women’s Status, Role and Rights in Forthcoming Constitutions: Areas of Concern ............ 58 4.5. Conclusion ............................................................................................................................. 62 5. Children’s Rights and the Forthcoming Constitutional Bill of Rights of Sudan (Khadeija Elsheikh Mahgoub) ........................................................................................................................... 63 5.1. Introduction .......................................................................................................................... 63 5.2. International Law and National Constitutions ...................................................................... 63 5.3. Sudanese Constitutions and Children’s Rights ...................................................................... 65 5.4. The Status of Children’s Rights in the National Laws of Sudan ............................................ 67 5.5. Sudan, Shari’a and Children’s rights ..................................................................................... 68 5.6. Effectiveness of Constitutional Norms on Children’s Rights................................................. 69 5.7. Other Constitutions and Best Practices ................................................................................ 70 5.8. Conclusion ............................................................................................................................. 71 6. Summary of Conference Proceedings ....................................................................................... 72 III. Conclusion ................................................................................................................................. 75 IV. Recommendations .................................................................................................................... 76 V. Annexes ......................................................................................................................................... 78 V.1.: Conference Programme................................................................................................................ 78 V.2.: Human rights provisions in selected Constitutions of Sudan ....................................................... 80 3 I. Introduction Sudan’s recent history has been characterised by long periods of armed conflict and/or authoritarian regimes and illiberal democracies. At the same time, the constitutional protection of human rights has been extremely weak, both in terms of the recognition of rights and the availability of mechanisms for their effective implementation. In the context of broader concerns over respect for the rule of law, these combined factors have contributed to a situation of systemic and serious human rights violations. A series of cases at the domestic level and before the African Commission on Human and Peoples’ Rights demonstrate that victims of such violations have no effective remedies in Sudan. There is also an almost complete absence of accountability for human rights violations. The Comprehensive Peace Agreement (CPA) signed in 2005 to end the North-South conflict had promised to change this situation. It included a series of human rights commitments, which formed the basis for the Bill of Rights constituting an integral part of the Interim National Constitution of 2005. This Constitution recognises a series of rights, stipulates that all treaties to which Sudan is a party are automatically part of the Bill of Rights, and vests the newly established Constitutional Court with the power to hear complaints concerning the violation of constitutional rights. In addition, it envisages a series of institutional reforms, including of the security sector. Many had hoped that the CPA would result in the promised democratic transformation and greater human rights protection. However, these hopes failed to materialise. Instead, South Sudan declared its independence in 2011, with armed conflict and serious human rights concerns persisting, now on both sides of the new border. The independence of South Sudan brought the CPA interim period to an end, and with it the need for a new constitutional arrangement. Since 2011, a constitutional review has been underway in Sudan. This review has not been participatory or inclusive. Lively debates on the new constitution in general, and the Bill of Rights and human rights protection in particular, have nevertheless ensued.1 These debates have been driven by a keen awareness of the importance of constitutional rights. They also provide evidence of the need to identify and address the failure of the Interim National Constitution (INC) to ensure adequate protection against, and redress for human rights violations. These debates reflect both traditional concerns over the protection of civil and political rights, particularly in the administration of justice, and other issues that have also become a cause of acute concern. These include the desire for the realisation of economic, social and cultural rights, and the rights of members of groups who suffer discrimination, particularly women, religious and ethnic minorities and persons with disabilities. It also includes children’s rights, which, exceptionally, have been recognised to a considerable degree in the recently enacted Child Act of 2010, although the operation of the law still faces challenges in terms of its actual implementation. In the context of these ongoing debates,
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