Analysis of Political, Social and legal dimensions of in within the framework of the United Nations Convention 1 against Corruption (UNCAC) Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention against Corruption (UNCAC)

Mohamed Abdelsalam

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 2 against Corruption (UNCAC) 2 Introduction

Corruption has multiple faces, types and causes. The political system fragility and lack of democratic transformation is one of the underlying causes of corruption. Corruption can also be categorized into different types such as casual corruption1 organized corruption which spreads in various bodies and organizations and managements; and comprehensive corruption,2 public sector3 and private sector corruption.4

Corruption hurts the poor disproportionately by diverting funds intended for development, undermining provision of basic services such as the right to clean water, health and education. It also feeds inequality and injustice and discourages foreign aid and investment, and is a key element in economic underperformance and a major obstacle to poverty alleviation and development.5 Corruption continues to be one of the obstacles for achieving development goals as resources allocated for development are diverted by corruption and mismanagement. The net result of corruption is the rise in the cost of basic services which is felt more acutely by poor and marginalized sections of society. Sudan’s case of marginalization of the poor and

1. Which includes all types of minor and casual corruption that represents a personal be- haviour more than a managerial structure of corruption 2. which is a wide range theft of governmental money and assets through fake deals or paying for fake commodities, or transferring public assets for personal benefits under the justification of public interest. 3. which is the corruption of governmental management and relating public bodies, which is one of the most obstacles for development and cause of poverty where the public office is abused for personal benefit 4. Abuzer paper. which means the abuse of the private sector power to affect the public policies of the state such as and gifts for personal benefit such as privileges or tax exemption 5. Foreword by Kofi A. Annan, UN Convention Against Corruption, UnitedNations Office on Drugs and Crime, United Nations, New York, 2004.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 3 against Corruption (UNCAC) the needy in the society (and of course other countries in the region) is largely due to successive corrupt regimes; an issue rarely featured and debated in our political and legal rights discourse. Corruption is a betrayal of the public trust and core values such as respect for the rule of law, accountability and transparency.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 4 against Corruption (UNCAC) 4 Sudan and the United Nations Convention against Corruption (UNCAC): The international community’s response to corruption is based on the United Nations Convention against Corruption (UNCAC) adopted by the UN General Assembly on 31 October 2003.6 Other conventions also exist to combat corruption7 however the UNCAC is a landmark document providing a comprehensive framework for addressing corruption. The vast majority of United Nations Member States are parties to the Convention. Sudan signed the Convention I4 January 2005 and ratified it in 5 September 2014.8 The UNAC complements the United Nations Convention against Transnational Organized Crime.9 Its main purpose and objective is (a) to promote and strengthen measures to prevent and combat corruption more efficiently and effectively; (b) to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, (c) to promote integrity, accountability and proper management of public affairs and public property.10 To achieve these objectives the Convention

6. General Assembly resolution 58/4 of 31 October 2003 7 . Other multilateral instruments to prevent and combat corruption, include, inter alia, the Inter-American Convention against Corruption, adopted by the Organization of American States on 29 March 1996; the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, adopted by the Council of the European Union on 26 May 1997, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the Organisa- tion for Economic Cooperation and Development on 21 November 1997, the Criminal Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe on 27 January 1999, the Civil Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe on 4 November 1999,5 and the African Union Convention on Preventing and Combating Corruption, adopted by the Heads of State and Government of the African Union on 12 July 2003. 8. See https://www.unodc.org/unodc/en/corruption/ratification-status.html 9. Entered into force in 2004. 10. Article 1 (statement of purpose).

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 5 against Corruption (UNCAC) introduces a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption. It also urges States parties to adopt preventive measures and criminalization of the most prevalent forms of corruption in both public and private sectors or spheres. The UNCAC requires member States to return assets obtained through corruption to the country from which they were stolen. It also introduces stronger cooperation framework between States parties to prevent and detect corruption and to return the proceeds. ‘Corrupt officials will in future find fewer ways to hide their illicit gains. This is a particularly important issue for many developing countries where corrupt high officials have plundered the national wealth and where new Governments badly need resources to reconstruct and rehabilitate their societies.’11 Sudan as a conflict and post conflict society suffered in its recent history massive plunders of its resources through corruption, money laundering and mismanagement of public funds shall adopt the agenda of fighting corruption at the heart of its political and legal discourse; otherwise aspirations for change will be aborted in the eye of the masses thirsty for change, prosperity and development. If the Convention is fully enforced and implemented by states parties (including Sudan), this key international instrument can make a real difference to the quality of life of millions of people around the world. The UNCAC covers five main areas: preventive measures, criminalization and law enforcement, international cooperation, asset recovery, and technical assistance and information exchange. It also covers many different forms of corruption, such as bribery, trading in influence, abuse of functions, and various acts of corruption in the private sector. These dimensions will be explored within the context of Sudan’s context.

11. Foreword by Kofi A. Annan, UN Convention Against Corruption, United Nations Office on Drugs and Crime, United Nations, New York, 2004.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 6 against Corruption (UNCAC) 6 Preventive Measures in the Fight against Corruption:

The operation of the Convention requires accountable institutions of governance and high level of transparency and accountability to fight corruption. This no doubt requires effective rule of law institutions, independent judiciary and a democratic society, particularly the Convention has a wide scope of application as provided for in Article 3 such as the prevention, investigation and prosecution of corruption and the freezing, seizure, confiscation and return of the proceeds of offences. This scope requires laws and procedures in place as well as involvement of credible, independent and autonomous institution of governance capable to fight corruption.

Preventive anti-corruption bodies pre and post 2018 December Revolution UNCAC requires that States Parties to the Convention to ensure the existence of a body or bodies to prevent corruption by implementing anti-corruption policies and overseeing and coordinating the implementation of those policies and disseminating knowledge about the prevention of corruption. These bodies, once established, are to be granted the necessary operational independence to enable them to carry out their functions effectively free from any undue influence. In Sudan, where rule of law is lacking and corruption is entrenched at highest level an independent anti-corruption body or a Commission is unlikely to operate effectively to realize its mandate even after the 2018 December Revolution. Still there is no a civilian led government due to absence of accountable democratic institutions including the legislative assembly an independent commission. Fighting corruption does not only require regulatory legal framework but democratic society and rule of law institutions and effective separation of

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 7 against Corruption (UNCAC) powers.12 Such a body should not only be equipped with trained personnel but also high autonomy as well as strong legal mandate to implement its functions. In Sudan, the Anti-Corruption Act was passed in 2016 but ‘it was born without teeth’ to fight corruption in terms of its substantive provisions and mechanisms.13 The law has certain deficiencies that need to be tackled. Although this Act was regarded at the time as a positive step, the Commission is yet to be established. Other bodies (i.e. the National Audit Chamber) also failed to fight corruption. Recently, after the glorious December Revolution, the Constitutional Declaration 2019 provides for the establishment of Anti-Corruption Commission and Assets Return to b established by an Act pf parliament.14 So far this commission was not yet established; instead the Law of Dismantling Ingaz Regime 2019 was passed rather than passing the Act for the Anti-Corruption Commission. The former law has many inherent deficiencies. It does not establish independent bodies but political committees lacking any autonomous status from the military and civilian personnel of the Sovereign Council, the cabinet and the FFC.

Accountability of the Public Sector Article 7 of the UNCAC focuses on the public sector in terms of accountability, selection and transparency and conflict of interests of officials who are vulnerable to corruption. Each state party shall consider adopting appropriate legislative and administrative measures to prescribe criteria concerning candidature for election to public office and to enhance transparency in the funding of candidatures

12. On rule of law and governance, see Mohamed Babiker and lutz Oette, 2014. ‘The Rule of Law and in Sudan: challenges and prospects for reform.’ (Institutional Reforms Series (2). Sudan Democracy First Group, http://eprints.soas.ac.uk/21446/ 13. For a detailed critical analysis of the gaps in anti-corruption Sudanese laws, see chapters 3 and 4, pp… 14. Chapter 12, Independent Commissions.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 8 against Corruption (UNCAC) 8 for elected public office and the funding of political parties,15 and to endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.16 It worth noting here that in many jurisdictions where corruption is rampant and the state is inherently corrupt and most institutions are not accountable realizing the Convention’s objectives is really problematic. In some states such as Sudan public officials in key positions were selected or elected on party or ethnic lines. Hence, it may be difficulty to disentangle the State from the ruling party. The policy of ‘tamkeen’ is true reflection of this17; it obviously defeats the objectives of Article 7 of the Convention where institutions of government are hardly separated from the hegemony of the ruling party during the Basheer regime, in particular in the civil service which should be accessible to all Sudanese (and without discrimination whatsoever) on the basis of merits rather than cronies or .

Codes of conduct for public officials are also important to fight corruption and promote integrity, honesty and responsibility of public officials. In order to realize this objective it is imperative that each State Party own institutional and legal systems promote codes or standards of conduct for the correct, honourable and proper performance of public functions.18 States shall also establish measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions.19 This amounts to whistle blowing (i.e. alerting law enforcement agencies to incidents of corruption

15. Article 7 (3) 16. Article 7 (4) 17. For a comprehensive analysis from the political economy perspective, see Al-Battahani, Atta, Political Dimensions of Corruption in Sudan: Some Observations from Comparative- Ex periences, Mohamed Abdelsalam Babiker ed. The Legal and Political framework of corrup- tion in Sudan (forthcoming 2020, university of Press. 18. Article 8. 19. Article 8.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 9 against Corruption (UNCAC) which shall prosecuted by them). Furthermore, the legal system shall require public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. Disciplinary or other measures shall be in place against public officials who violate the codes or standards.20 Again, in Sudan, it is not the practice that public officials normally make such declarations where conflict of interest is apparent or even the law does not penalize but pardon those who are involved in corruption cases.

Criminalization and Law Enforcement Article 15 of the UNCAC (Bribery of national public officials) provides that each State Party shall adopt legislative and other measures as criminal offences, when committed intentionally such as the promise, offering or giving, to a public official, directly or indirectly ofan undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.21 The Article further criminalizes the solicitation or acceptance by a public official, directly or indirectly of an undue advantage, for the official in order that the official act or refrain from acting in the exercise of his or her official duties.22 Similarly, Article16 on bribery of foreign public officials and officials of public international organizations obliges states parties to adopt legislative measures to establish criminal offices against officials of public international organizations.23 Article 17 of the UNCAC also imposes obligations on States Parties to adopt legislative and other measures to establish criminal offences to penalize embezzlement, misappropriation or diversion by a public official for his or her benefit or for the benefit of another person or

20. Article 8 (6). 21 Article 15 (a) 22. Article 15 (b) (Bribery of national public officials) 23. Article16 on Bribery of foreign public

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 10 against Corruption (UNCAC) 10 entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position.24

Illicit enrichment of public officials Another important article in the UNCAC is the issue of illicit enrichment of public officials; and issue which is now prevalent in Sudan and other developing countries. In this respect, each State Party shall consider adopting legislative measures to establish as a criminal offence illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.25 This article caused considerable debate during the negotiation of the treaty.26Pakistan, for example, suggested that the application of the article with regards to assets should be qualified by setting a minimum threshold for such assets below which the article would not be applicable, with the determination of such threshold left to the discretion of States parties.27 Illicit financial flows and governance is strongly interrelated with linkages at the domestic and international levels. For instance, governance challenges caused by kleptocratic regimes, political instability, and the absence of the rule of law are opportunities for

24. Article 17 of the UNCAC (Embezzlement, misappropriation or other diversion of prop- erty by a public official) 25. Article 20. Illicit enrichment 26. Pakistan for example, proposed that the criminalization of illicit enrichment be made optional, thus providing a way out for States parties that would consider itsprovi sions to be in contradiction with their domestic lawTRAVAUX PRÉPARATOIRES of the negotiations for the elaboration of the United Nations Convention against Corruption, UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna, United Nations, November 2010, pp. 197-200. 27. TRAVAUX PRÉPARATOIRES of the negotiations for the elaboration of the United Nations Convention against Corruption, UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna, United Nations, November 2010, pp. 197-200.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 11 against Corruption (UNCAC) illicit financial flows to thrive.28 These outflows are facilitated by the establishment of shadow financial systems such as tax havens, secrecy jurisdictions, disguised corporations, anonymous trust accounts and fake foundations, as well as money laundering techniques, which enrich certain individuals at the expense of the great majority. At the national level, illicit financial flows are undermining the dynamics of macroeconomic components such as domestic savings, hard currency reserves and tax collection in African countries.29 This has adversely affected Africa’s structural transformation and led to a cycle of external borrowing and debt service payments. It has also perpetuated the continent’s dependence on external aid. One of the key articles in the UNCAC is Article 23 which criminalizes laundering and proceeds of crimes. 30 It requires State Parties to adopt legislative and other measures with regard to the conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action; or the concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime. This Article further obliges states parties to include a comprehensive range of predicate criminal offences including offences committed both within and outside the jurisdiction of the State Party in question. This is a very key development in international law treaty making as the formulation of this article involves the extension of extra territorial application of the UNCAC and expands its jurisdiction outside the state territorial boundaries. It only requires that ‘offences

28. Abugre, C. and Ndomo, A. (2014). Structural Transformation and the Challenge of Financing Africa’s Post 2015 Development Agenda 29. United Nations Economic Commission for Africa, Illicit financial flows - why Africa needs to “track it, stop it and get it”, https://www.uneca.org/publications/illicit-financial- flows-why-africa-needs-%E2%80%9Ctrack-it-stop-it-and-get-it%E2%80%9D 30. Article 23 Laundering of proceeds of crime.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 12 against Corruption (UNCAC) 12 committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal offence under the domestic law of the State Party implementing or applying this article had it been committed there’. The Convention further obliges states parties to criminalize concealment or continued retention of property when the person involved knows that such property is the result of any of the offences established in accordance with the Convention. 31 Similarly article 42 of the UNCAC establishes jurisdiction over crimes in the following situations: (a) the offence is committed in the territory of that State Party; or (b) the offence is committed on board a vessel that is flying the flag of that State Party or an aircraft that is registered under the laws of that State Party at the time that the offence is committed. A State Party may also establish its jurisdiction over any such offence when (a) the offence is committed against a national of that State Party; or (b) the offence is committed by a national of that State Party or a stateless person who has his or her habitual residence in its territory. Article 26 touches on an important area: namely the statute of limitation regarding the period in which bringing a criminal case on corruption offences will not lapse. It provides that States parties shall establish under their domestic law a long statute of limitations period in which to commence proceedings or provide for the suspension of the statute of limitations where the alleged offender has evaded the administration of justice.32 This is an important Article as far as Sudan criminal laws and procedures are concerned. The Criminal Procedures Act 1991 provides for a limited period for the statute of limitation after which the offense will lapse including grievous crimes such as torture. Article 32 on (Protection of witnesses, experts and victims) provides that each State Party shall provide effective protection from potential

31. Article 24. 32. Article 26 (Statute of Limitation).

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 13 against Corruption (UNCAC) retaliation or intimidation for witnesses and experts who give testimony concerning offences established in accordance with the UNCAC and, as appropriate, for their relatives and other persons close to them. States parties must also establish procedures for the physical protection of persons such as relocating them and permitting non- disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons; providing evidentiary rules to permit witnesses and experts to give testimony in a manner that ensures the safety of such persons, such as permitting testimony to be given through the use of communications technology such as video or other adequate means. It is unfortunate that such procedural rules do not exist as part of Sudanese penal laws so that witnesses, victims and experts can testify or provide evidence. Article 34 of the UNCAC addresses consequences of corruption. In this context, States parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action. This is an important and novel ground introduced by the UNCAC for remedial actions in particular with regard to various transactions or contracts by public officials in many countries including Sudan. Sudanese laws and court practice do not recognize this approach but the Convention should be used (as far as Sudan is a state party) to review all sign contracts when there is evidence that such contracts were contracted through corrupt practices by the previous regime. Many commercial dealings of contracts made by the previous regime can be rescinded or annulled. Cases are abound.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 14 against Corruption (UNCAC) 14 International cooperation Extradition Under the Convention States parties shall cooperate in criminal matters and consider assisting each other in investigations ofand proceedings in civil and administrative matters relating to corruption.33 One of the key areas of international cooperation is extradition where the person who is the subject of the request for extradition is present in the territory of the requested State Party, provided that the offence for which extradition is sought is punishable under the domestic law of both the requesting State Party and the requested State Party.34 States parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences established in accordance with this Convention in order that they may complete their sentences there. In Sudan , post the 2018 December revolution it is recommended that the forthcoming Anti-corruption Commission provided for under the Interim Constitutional Declaration 2019 to have jurisdiction over persons who embezzled money and properties and be extradited to Sudan as well as having the powers to sign bilateral or multilateral agreements to transfer such corrupt individuals and assents to Sudan.

Investigation, prosecution and judicial proceedings States Parties are also invited under the UNCAC to consider concluding bilateral or multilateral agreements or arrangements in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States. The competent authorities concerned may, accordingly, establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis.35 Again, Sudan, either the Anti-Corruption Commission or the Attorney General

33. Article 43 (International cooperation). 34. Article 44. 35. Article 49 Joint investigations

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 15 against Corruption (UNCAC) Anti-Corruption Attorneys can engage with member states and sign bilateral or multilateral agreements with regards to investigations and prosecutions of pending or potential cases.

Asset Recovery

One of the key provisions of the UNCAC is return of assets which is regarded as a fundamental principle of the Convention. In this respect, States Parties are urged to afford to one another the widest measure of cooperation and assistance.36 Article 52, for example, focuses on prevention and detection of transfers of proceeds of crime. Accordingly, each State Party is required to take measures to require financial institutions within its jurisdiction to verify the identity of customers, to take reasonable steps to determine the identity of beneficial owners of funds deposited into high-value accounts and to conduct enhanced scrutiny of accounts sought or maintained by or on behalf of individuals who are, or have been, entrusted with prominent public functions and their family members and close associates. Article 53 is a key article too focusing on measures to be taken by states for direct recovery of property. It requires each State Party to take measures to permit another State Party to initiate civil action in its courts to establish title to or ownership of property acquired through the commission of an offence under the Convention. This article is very essential as it facilitates other States parties to the Convention to take appropriate measures to permit its courts to order those who have committed corruption offences and to pay compensation or damages to another State Party that has been harmed by such offences. Furthermore, Article 54 provides for mechanisms for recovery of property through international cooperation. This includes taking measures to permit states parties’ competent authorities to give effect to an order of confiscation issued by a court of another State Party. States can further consider taking measures to allow

36. Article 51.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 16 against Corruption (UNCAC) 16 confiscation of property without a criminal conviction in casesin which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.37 Also, State parties may take measures to freeze or seize property or seizure order issued by a court or competent authority of a requesting State Party that provides a reasonable basis for the requested State Party to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation. Article 57 provides for return and disposal of assets. It requires each State Party to adopt legislative and other measures to enable its competent authorities to return confiscated property, when acting on the request made by another State Party. Confiscation of property includes cases of embezzlement of public funds or of laundering of embezzled public funds and proceeds of any other offence covered by this Convention.38

Combating corruption and the Judiciary Legal causes related to the lack of accountability and transparency, the absence of accountability and transparency is considered one of the main reasons for corruption. The convention provided in some of its provisions related to judicial systems, emphasized the independency and the necessity and eradication of corruption among the judicial system members by state partiers.39 The independence of the judicial authority from the executive and legislative authority is a feature of the rule of law basing on a constitutional principle which is the separation between authorities. This principle is considered one of the ingredients of constitutional system, and without this independency the judicial system cannot function properly. Several provisions in Sudan constitution confirms the independency of the

37. Article 54 (c) 38. Article 57 (3) (a) (b) 39 . Aricle.11

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 17 against Corruption (UNCAC) judicial system.40 One needs to highlight here that the Dismantling of the Ingaz regime Act 2019 compromises judicial independence under the Act as appeal process lack due process of law. For example, confiscation of property is under the Act is given to committees and immediate without giving courts the right to confiscate property by a judicial decision. This further violates the Bill of Rights of the Constitutional Document 2019 which provides for the sanctity of the right to property and that it will only be confiscated for public interest and subject to adequate compensation.

Combating corruption and the Prosecution Article.11 (2) of the UN’s convention against corruption of2005 emphasizes the necessity of giving the general prosecution some institutional independency in order to ensure criminal justice in the state against the executive interference. The independence of Prosecutor General shall then ensure prosecuting crimes of corrupted public officials. Although the convention didn’t set the specific rules of independency in reality and gave each state the right of choosing the appropriate measures, the Prosecutor General should be independent in order to function properly in fighting corruption. Again, the attorney general office was until 2017 in Sudan was part of the Ministry of Justice and hence subject to the political will of the executive branches of government. After, that the separation of the Attorney General still issues remain that that the system is under the hegemony of the political system. 41 The Attorney General Act 2017 aimed to give some independence to the general prosecution body, since article.9 of the law stated the independence of the

40. Sudan transition constitution of 2005, the article.123 (2) stated that “TheNa tional Judi- ciary shall be independent of the Legislature and the Executive, with thenecessary financial and administrative independence

41. Abuzer, Al-Ghifari Bashir Abd Al-Habib Abuser, Corruption combat in Sudan legislations basing on the UN’s convention against corruption of 2005.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 18 against Corruption (UNCAC) 18 general prosecution and its members.42 In spite of this theoretical effort in establishing an independent prosecution; yet it faces a lot of challenges due to the nature of the controlling council in Sudan. The formation of the council reflects the domination of external entities over the council and specifically the executive body which jeopardises the independency of the Attorney General.43

Political corruption and its impact on society There is no doubt the political context in the past thirty years has resulted in an entrenched corruption in the society, which had serious impact, politically, economically and culturally. And many factors have led to entrenching corruption including the lack of democratic society and rule of law and limited margin of freedoms including media freedoms. The ruling political class in the past thirty years in Sudan has acted with impunity and enjoyed all powers with resultant lacking of transparency and accountability.44 It was evident during the Ingaz regime that the ideological Islamic class which has seized the political power grasped the whole body of the state. One of the methods used is to enable corruption through

42. Article.1 (1) stated “the general prosecution is independent from both legislative and executive authorities and has the required financial and managerial independence”. Article.1 (2) also stated; “members of the general prosecution are independent in performing their duties and cannot be affected by other means, they can only be affected by law”. 43 . Article 4 of the Act provided that the council is formed of eleven membersonly four of them are members of the general prosecution: the attorney general, first attorney assistant, attorney general’s assistants (without limiting their count) and a general prosecution head selected by the attorney general. However, the majority of the councilare not related to the general prosecution including the vice judiciary president, minister of finance and economic planning, general secretary of police forces, deputy of justice ministryand three other mem- bers selected by the president.

44. Al-Battahani, Atta, Political Dimensions of Corruption in Sudan: Some Observations from Comparative Experiences, Mohamed Abdelsalam Babiker ed. The Legal and Political frame- work of corruption in Sudan (forthcoming 2020, university of Khartoum Press.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 19 against Corruption (UNCAC) purifying the civil service and changing cadre as the first step to manipulate the political system. Then, the State started tailoring laws and legislations towards its private interests and focused on how to legitimize corruption through legislations.12 This attitude towards the institutions of the state amounts to inits wider sense and such situations involve the miss use of public power (government bodies) for illicit aims and to attain personal benefits and gains. Furthermore, with the development of political, economic, and social life under globalization a new class or group of liberal professionals and business men elites have emerged functioning in international organizations calling for privatization, international loans, free trade, and merging national economy with international capital economy and global financial networks paying no attention to the national interest.45 Some political systems are exposed to political corruption which varies in types but the most common types are favourism, bribery, embezzlement, undue effect, fraud and nepotism.46 Scholars consider political corruption as the most dangerous type of corruption as it involves the class of political elites which sis regarded a top of the pyramid of all kinds of corruption (managerial/ economical).22 Corruption is also supported by those misuse power and abuse in a context where dictatorial governments oppress peoples and democracy, human rights and independent authorities do not exist. In such a context political authority is conducive environment for corruption to be rampant to protect the corrupted and corrupted officials gradually develop powerful networks that strings behind flexible legislations so corrupted officials can penetrate systems and even control states to an extent where they can control laws, legislations and accountability.47 So corruption is basically a political issue in the first place and not a legal or managerial issue.48 The solution is to deconstruct dictatorship and readjust power balance

45. Ibid. 46. Ibid. 47 Ibid. 48. Ibid.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 20 against Corruption (UNCAC) 20 that facilitates such corruption and wealth-capital piling in the hands of local and foreign classes that society had paid a high cost of poverty and insecurity in spite of its vital coherence and resistance.

Money and wealth as tool of power manifest itself in various ways ranging from awarding public contracts which were considered a habitat for all kinds of corruption from bribery to nepotism and favorism. This alliance between wealth and political authority is based on common interest which causes the subordination of political power to economic power so wealthy classes achieve their interests and work to enslave other segments that represent scientists, the educated and intellectuals who also serve political authority. 49 This alliance is further cemented by the social networks of political class and business interests and was manifested during Ingaz regime. The soft-landing approach post the 2019 December Revolution was also influenced by certain initiatives of influential businessmen who played a mediation role to ensure political transformation is not radical as this may affect their vital l interests post Bashier era. The passing of the Dismantling of Ingaz Regime Act 2019 (rather than establishment of an Independent Anti- Corruption Commission) is a true reflection of the manipulative approach by both the Sovereign Council and the FFC to ensure that radical transformation should not take place as part of the political game and also to preserve the vital interests of business classes. Therefore, there is no justification to pass such an Act while globally best practices indicate that independent Anti-Corruption Commission (from both the military component and politicians) may lead to aborting anti-corruption efforts; any fight for corruption requires institutional framework and independent commission and technical experts who can act independently to handle all corruption c a s e s . Political corruption leads to injustice, unfairness and inequality in opportunities between citizens in terms of their participation in political and public life in violation of individuals rights under the

49. Ibid.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 21 against Corruption (UNCAC) international Covenant on Civil and Political Rights 50 including the participate in periodic elections which in most situations were not conducted in a conducive environment of fair and free election. Political corruption represented in favorism, tribalism, nepotism results in promoting unqualified personnel to critical and managerial positions in the state which will lead to the deformation ofthe managerial body of state. Even in political democratic transitions, such as the current Ministerial selection after the Sudan December Revolution 2018 we fins that selection of minsters were largely based on tribal and ethnic affiliation and regionalism despite under the Constitutional Documents 2019 a technocratic government shall be selected on the basis of qualifications and competes.

Combating corruption through societal participation and the right to access information Individuals and groups participation are considered to be a safety valve in the implementation of corruption combat policies, since societal participation is necessarily strengthening and developing anti- corruption. NGOs can play an effective role in encouraging societal participation. In Sudan the government under UNCAC shall promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption. However, social factors have negative impact on fighting corruption. This includes wars, foreign interferences, sectarianism and tribalism, nepotism, unrest resulting from poverty and poor education.

One of the effective ways and means of fighting corruption enshrined in the UNCAC is the participation of society. States parties are required to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental

50. See Article …of the ICCPR 1966 on public participation.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 22 against Corruption (UNCAC) 22 organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption.51 This participation should be strengthened by various measures in order to enhance transparency and to promote the contribution of the public to decision-making processes. The rationale behind involvement of civil society is also to ensure that the public has effective access to information and contribute to non- tolerance of corruption. Public education programmes, including school and university curricula; respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information are all enshrined in the UNCAC as effective means towards the fight against corruption. Media freedoms are of course subject to certain restrictions, but shall only be provided for by law and are necessary for respect of the rights or reputations of others in a democratic society, the protection of national security or ordre public or of public health or morals. In Sudan, the balance between the right to freedom of information and the public right to know is not always maintained due to absence of rule of law and democratic society and restrictive freedom of information laws and criminal laws which do not normally allow the public or the society to participate in tackling corruption cases within the meaning of article 13 of the UNCAT. Sudan has passed 2015 Access to Information Act however it is unfortunate the law stands against obtaining the right to information. In particular, Article 12 of the Act provides for various exceptions where the right to seek information is critically restricted. Other laws do not guarantee the right to access information.52 Hence, few regulations provide for the right to access information under Sudan’s national laws, and that international norms (including the UNCAC) were not properly domesticated or

51. Article 13 52. I.e. The National Security Act 2010, the Press and Printed Materials Act, 2009, the Crim- inal Act 1991, the National Archive Act 1982, the Electronic Information Act, 2007, Crimes of Information Act, 2007 and the National Centre for Information Act, 1999.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 23 against Corruption (UNCAC) harmonized after Sudan’s ratifications of international treaties. The fact that states ratify treaties does not necessarily mean that citizens’ rights are actually respected, particularly in the domain of access to information as their operations as norms and values cannot be attained in countries where rule of law and democratic society is absent. Sudan is no exception. The Sudan National Interim Constitution, 2005 (INC 2005) and the Constitutional Declaration 2019 guarantee the right to receive and disseminate information but not to seek information from governmental bodies. This is a key gap in the body of the normative constitutional framework. As provided above, Sudanese legislations, including media laws, are not adequate when dealing with freedom of information. National laws generally, including media laws, do not indicate the criteria to be used in determining whether or not information may be declared secret (in particular those involving corruption cases), and sets forth clear and narrow categories of information that may be withheld with sufficient precision to enable persons to understand what information may be withheld and what should be disclosed. Laws do not accurately define the ambit or scope of when access to information can be restricted. This was left to the discretion of executive branches of government which has resulted in the shrinking space for the ‘public right to know’. The ‘scattered’ provisions related to freedom of information and the work of media personnel are vague, general and do not provide for precise conditions or requirements to restrict the right to information.53 Sudanese laws also do not regulate whistle blowers or the disclosure of information concerning wrongdoing including cases of corruption or embezzlement of public money. Laws do not envisage the concept of the duty to disclose information for public interest reasons or for serious misconduct involving human rights violations. Sudanese

53. See Babiker, Mohamed Abdelsalam International Human Rights Instruments on the right to Access Information: their Domestication and Harmonization within Sudan’s Legal Framework, unpublished paper presented at Access to Information and the Principles of Transparency workshop organized by the Faculty of law, university of Khartoum, Sharga Hall. Wednesday, 2nd August 2017,

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 24 against Corruption (UNCAC) 24 laws also do not provide a definition of protected and unprotected disclosures or internal or independent bodies to whom disclosure of wrongdoing is permissible or required. The duty to disclose internally or to oversight bodies information showing wrongdoing is not part of the regal framework such as human rights violations; corruption; dangers to public health and safety; significant dangers to the environment; abuse of public office; significant mismanagement; and conflicts of interest. On the contrary, Sudan’s laws (i.e. National Security Act 2010) impose harsh obligations and duties on official not to disclose any information either internally or to the public while in service or even after leaving service or during retirement. This law does not envisage or provide protection for whistle blowers but only punishment for disclosure of information, 54 or punishments for those who ‘fail to immediately report to his superior or to any other senior officer any information brought to his/her knowledge’ 55 or making ‘false statements with respect to any incident….. or intentionally refrains from providing essential information in this respect’,56 or ‘if he/she discloses confidential information to the enemy or communicates information….. that has come to his/her knowledge during his/her service’. 57

54. See Article 55 (1) (c) (d) of the NSS Act 2010 providing punishment with death or life imprisonment. 55. See Article (58) of the NSS Act 2010 imposes punishment with imprisonment for a pe- riod not exceeding ten years, a fine. 56. Article (66) (False Accusation and Statements) punishes with imprisonment for a term not exceeding five years. 57. Article 68 of the NSS Act 2010 punishes with death or life imprisonment.

Analysis of Political, Social and legal dimensions of Corruption in Sudan within the framework of the United Nations Convention 25 against Corruption (UNCAC)