How would the international community support the Sudanese elections, 2009?

Mahgoub EL-Tigani

September 19, 2008 - Supporting freedom around the world, the US-based National Endowment for Democracy (NED) held an important conference “Towards Democratic Elections in Sudan” (Washington, DC: September 18, 2008).

Besides a distinguished presence by Congressman Don Payne, Ambassador Rich Williamson, and the Special Advisor to the President of Sudan Dr. Bona Malwal, the conference was attended by more than 30 major American and international public policy groups, including US Department of State, House Foreign Affairs Committee, the United States Agency for International Development, the International Republican Institute, and the National Democratic Institute.

Side-by-side with the Center for Strategic and International Studies, US Institute of Peace, American Federation of Teachers, Princeton China Initiative, Freedom House and Amnesty International (USA), Genocide Intervention network, Catholic Relief   Services, and other concerned parties, the conference was fully attended by the Embassy of Sudan and the Government of South Sudan (GOSS) Mission in the United States, in addition to representatives of the Government of National Unity (GONU) parliament, i.e. the National Council.

The Sudanese civil society groups attending the meeting included speakers representing the National Center for Peace and Development ( Khartoum) and the Sudan Human Rights Organization-Cairo (in exile).

Strongly supportive of the Sudanese determination to exercise the full enjoyment of all internationally-recognized rights of national elections, the discussions emphasized the need to raise awareness, to empower marginal populations, and to open up all avenues of public freedoms to allow active participation by all citizens in the urban and rural settings of the country. The conference exposed in open discussion the political, administrative, and legal obstacles that should be immediately removed by the Sudanese authorities to ensure smooth application of the democratic process in elections 2009.

The Comprehensive Peace Agreement (CPA)

The participants agreed that the signing of the Comprehensive Peace Agreement (CPA) by the Government of Sudan (GOS) and the Sudan People’s Liberation Movement/Army (SPLM/A) in January 2005 has opened an unprecedented horizon to turn the devastation years of war, displacement, and underdevelopment into a new era of peace and development.

The CPA provides a critical opportunity to address fundamental issues such as justice and the rule of law, reintegration of refugees and displaced persons, and transparency and accountability in governance. Moreover, peace and new governing arrangements provide a great opening to inject human rights protections into the country’s political, legal, and societal structures.

Many human rights and democracy groups have been deeply concerned, however, for shortcomings of the agreement: The government control of the judiciary, law-making institutions, armed forces, security bodies, and militias continued unabated. In this regard, the most recent attacks on the Kalma Camp in Darfur were strongly condemned by several speakers, especially Ambassador Williamson and Congressman Payne. The Congressman reiterated further strong remarks supporting the ICC Prosecutor’s indictment of President Bashir.

The GONU and the GOSS have been facing a formidable task regarding the CPA implementation. Despite recurring failures in the implementation of the CPA, some speakers acknowledged important accomplishments: The insistence in peace and the amount transferred to GOSS from oil revenue are undeniable, said the Special Adviser to the President Bona Malwal. And yet, an overwhelming number of commentators emphasized the most influential role to be played by Sudanese civil society groups in the process of peace, democracy, and elections is seriously incapacitated by the government’s arsenal of repressive laws.

The Situation of Civil Society Groups

Several panelists noted that GONU implementation of the CPA failed to protect the rights of civil society groups to establish their own federations, free of security restriction and harassment, press or media censor, and political intrusion.

The signing of the peace agreements has not yet ended the national disputes in question; nor has it solved escalated ethno-regional conflicts in Abyie, or Darfur and the Northern regions. Massive human rights violations continue to occur mainly by the government troops and militias in Darfur, thus endangering the preparations for free, fair, and peaceful elections in the region.

The commitment to democratic reform by the partners to the CPA remains tenuous at best. During 38 years of war, Sudanese were constantly subjected to torture, rape, abductions, forced servitude, and slavery. Civil liberties were usurped. Still today, after 20 years of the NIF/NCP dictatorship, the judiciary functions as a non-independent branch of government under the presidency’s executive and legislative powers.

The media is “legally” censorable. The government’s free hand to impose emergency law “as needs be” intimidates the freedom of assembly and association, and a lack of democratic labor laws prohibits the existence of independent activities by key community-based popular organizations and non-governmental civil society groups, namely the trade unions and professional associations.

Women continue to face discrimination in employment and political activities, as well as family matters with respect to marriage, divorce, and inheritance under the NIF-NCP enforceable version of Shari’a law, for instance the right to travel only with a male guardian, which will restrict seriously the freedom of movement for women in the elections.

The Elections’ Act 2008, moreover, confiscated the right of women to run elections in party slates since all women candidates will be placed in a unified list that might fall into the NIF/NCP presumptuous side. This legal patronage is a clear violation of the political right of women to run elections with a chosen party or under any independent affiliation of their own choice. Furthermore, the unified list of women, against the will of all opposition groups, has been endorsed by the CPA ruling partners at expense of the principle of proportional representation which aims to ensure effective participation for all parties in election.

Earlier in the Sudanese Human Rights Quarterly (Issue 27: 2008), SHRO-Cairo Secretary General Mohamed Hassan Daoud noted: “Because the CPA agreements have been placed above the Interim Constitution, as well as the international human rights norms, should any contradiction occur between the adopted references, the Sudanese civil society groups (including political parties, trades unions, and professional associations) have been raising grave concerns over the possibilities of unfair elections in the post-transitional period in which the NIF/NCP ruling party has been solely privileged with a determining margin over the competing parties.”

The GONU Legal Arsenal of Coercion

Loudly voiced at the conference, both Sudanese and foreign civil society groups emphasized the need to ensure full freedoms to people before, during, and after elections 2009. The Sudanese movements for liberation and democratic rights cannot be called “gorillas” as depicted by a Sudanese parliamentarian in the conference panels: “The real gorilla is the persecuting NIF/NCP government,” in the words of a civil society panelist.

Despite all legal difficulties and handicaps, the Sudanese civil society has a great potential to play an important role in the CPA implementation of peace and democratization with regard to elections’ awareness and monitoring practices in collaboration with international groups. To accomplish this goal, however, the newly enacted law of voluntary organizations (2006) must be drastically changed together with the other enforceable laws on public order, the police, press and publications, the family, penal code, and criminal procedure.

Over 19 years of unrelenting research, documentation, and training programs in the fields of human rights activities, the Sudanese human rights activists and their coordinating staffs in exile and/or working groups inside the country worked independently from the Government of Sudan in full cooperation with the NED, as well as the other national, regional, and international human rights and democracy groups, to protect the rights of citizens, increase democratic awareness, and disseminate reliable information on abuses of authority and the violations of international human rights norms.

Throughout the same period, the Sudan Human Rights Organization (SHRO-Cairo), for instance, issued many works, all addressed to the Sudanese masses, the Government of Sudan, and the International Community, that consistently urged the concerned parties, especially the NIF/NCP-controlled GONU, to take the necessary steps to abolish the state’s arsenal of legal repression, in accordance with the Bill of Rights and the other international norms. All these appeals, nonetheless, were received without the least positive response by the ruling group.

In 1997, the organization published an overall critique of Sudan Laws, as a part of its human rights campaigns against human rights violations, together with special issues of the Sudanese Human Rights Quarterly to sensitize the Khartoum ruling parties to apply immediate reforms on Sudan laws. For example, Quarterly Issue No. 8 initiated a wide discussion on the crisis in Darfur as early as 1999 by the Darfuri intellectuals who claimed righteously the full recognition of the Darfur civil society groups and social movements to realize a lasting settlement of the crisis.

Issue 18 of the Quarterly (2004) affirmed with updated reports that the government was squarely responsible for the crisis in Darfur, as it had been squarely responsible for the devastating civil war in the South. Issue 19 (2006) discussed practical measures to enforce the transition to peace in democratic terms; Issue 21 (2006) highlighted the need to convene an all-Sudanese constitutional conference to end the urgent problems of Sudan by national consensus; Issue No. 24 spoke about top concerns of the civil society organizations; and Issue No. 22 criticized with detailed reports the situation of the post-CPA freedom of expression and the Press.

Sharing a significant portion of the huge literature accumulated by human rights activism all over the world to improve the human rights situation in Sudan, many non-governmental national and international human rights and democracy groups criticized the iron-clad hegemony of the State Security Department over fundamental areas of the public life and policy issues.

The NED panels made the point that the regime’s arsenal of coercion must be genuinely abrogated, and then clearly replaced with democratic provisions and consistent application in the daily life in full compliance with the Bill of Rights and the other internationally-recognized human rights norms previously approved by the CPA and formally stipulated by the Interim Constitution.

The Government’s Violation of NGOs Legal Registration

Issue 24 of the Sudanese Human Rights Quarterly published a study by Amin Mekki Medani, a founding president of the Sudan Human Rights organization in exile, on the government’s violation of legal registration rules for voluntary organizations. As he put it: Article 5 of the Constitutional Decree No. 2 (1989) revoked the registration of all non-religious societies and organizations. This included the Sudan Youth’s Organization, philanthropic welfare and charity societies, the Sudanese Writers’ Union, and the Sudan Human Rights Organization, etc.

In 1990, the government published a list of NGOs, which it declared could reapply for re-registration. Acceptance of the new ones was done on a selective basis, depending on the objectives and the applicants. The Sudan Human Rights Organization (originally founded by the late Professor Mohamed Omer Beshir and his colleagues in 1984) was not only banned and its property confiscated; but the organization’s leaders were put under long terms of harassment and/or preventive detention since the NIF June 1989’s military coup.

“When the organization applied for re-registration,” said Medani, “its request was rejected. Instead, the government established a new organization with the same name and appointed its executive body from well-known cadres of the NIF. The new organization has proved a faithful defender of the regime and, to date has not raised a single complaint about any violation of human rights by the regime.”

This history of blatant human rights violations, besides the ongoing conflict in Darfur, underscores the fragility of the current peace and governance in Sudan and has been haunting the image of the presidency and the state-managers in security, national economy, or foreign affairs up to the indictment of the head of state Marshal Omer al-Bashir by the Prosecutor of the International Criminal Court for genocide and crime against humanity in Darfur (2005-2008).

The Post-CPA Non-Constitutional Laws against Sudanese NGOs

The Sudanese Human Rights Quarterly (24:2007) included a detailed critique “Liberating the Law from Repressive Authorities” by the human rights advocate Taha Ibrahim on the non-constitutionality of government laws with respect to civil society organizations. We have included in the following section major points of this important critique, which was repeatedly reechoed in the NED conference.

A most important objective of civil society organizations, confirmed advocate Ibrahim, “is to guarantee human rights to prevent its violation. This is why repressive regimes harass these organizations by stringent laws to curtail their activities. There are now four main laws that govern civil society activities: the trade unions law (2001), the law for the organization of professional associations (2004), the law on voluntary work (2006), and the law on organizing cultural societies (1996).”

The major goal of these laws is to strengthen the government control over the activities, membership, organization, and finances of native organizations. The government has been abusing the Salvation Constitution (1998) that entrenched a totalitarian repressive rule in the country.

In 1986, Sudan rectified the international covenant on civil and political right and the covenant on economic, social and cultural rights. The provisions of these international agreements became part of the constitutional rights in the country. The Interim Constitution (2005) adopted an advanced version of human rights and fundamental freedoms, which had to abrogate or amend all laws controlling civil society activities in conformity with the Interim Constitution.

The government, nonetheless, is determined to maintain repressive laws for good. The law on voluntary work (2006) included non-constitutional arrangements that simply abrogate the right of peaceful assembly (for example Article 22 of the International Covenant on Civil and Political Rights).

Equally importantly is the right of trade unions to form national unions or confederations, or to join international unions. Article 40 of the chapter on rights in the Interim Constitution guarantees the right to peaceful assembly. Everyone shall have the right to freedom of association with others, including the right to form and join political parties, associations, unions, and professional associations for the protection of his interests. The law organizes the formation and the registration of all these activities as is necessary in a democratic society.

The Law on Labor Unions confiscates all rights and freedoms. Section 5 prescribes certain goals for the labor unions, which violates the international law. Moreover, sub-section (a) refers to the right to protect labor interests "in light of the enforceable law," which restricts further the right of workers to resist or even to struggle to abrogate any law that contradicts their union interests.

What is worst is sub-section (h) that requires "cooperation with State apparatus … to advance the march of the Nation towards its high values and international relations." Ironically, these "values" were determined by the National Congress Party, which represented exploitation and terrorism – acts strongly abhorred by most of the Sudanese people. The law also requires by section 6 that union activities will not be legalized unless worked out "in compliance with the law or any other enforceable law."

Section 9 of the law states that the Minister, based on a recommendation by the Registrar, is the competent authority to define in what sectors or establishment workers can form unions. The Minister is authorized to define the names, numbers, and types of such unions. Paragraph 3 of the section states that it is not possible to form more than one union in any of the sectors or establishments the Minister defines. Para 7 of the same section dictates that the registrar is the one who defines the union, as he sees fit, for any workers for whom a union is not previously allocated by ordinance.

In section 10, the law imposes government-made structures over the popular unions. This authoritative intervention eradicates the right of workers to define their own structures to serve their interests. The law prescribes the by-laws of unions. Section 11 (b) says that by-laws must include the goals mentioned in section 5, as already discussed. The section conceptualizes specific ways for unions to manage their affairs. A union not complying with these ways will be liquidated. A union's term of office is allowed for five years only. This deprives unionists from the right to specify the union's term of office.

The law did not define the term "worker." But it defined "the owner of work." This confusion aimed to justify the prevention of workers from the right to join a union of their wish. Section 15 prohibits any person from the right to join the membership of more than one union. Any professional person, according to section 34, however, has the right to join any workers' union; that is to say he can be a member of both professional associations and workers' unions.

The Sudanese workers, however, are not allowed to join professional associations unless they have the professional qualifications to do that. The ultimate goal of the law is to enable professionals to prevail over workers' unions simply because the government has been short of the workers' support; but evidently enjoyed a large number of diploma holders and other professionals in the service of the NIF/NCP ruling junta.

The Registrar is “a Master of Unions”

Advocate Taha Ibrahim explains that “Section 27 made of the Registrar's decisions judicial decisions that may be protested before the High Court." Although section 27 (a) decides that the President of the Republic on the recommendation of the Minister appoints the Registrar, such appointment shall not make of the Registrar a member of the Judiciary, which is constitutionally designated to decide on judicial disputes.

In origin, the Registrar's decisions are administrative. Hence, they should be subjected to administrative law. The government, nonetheless, wants to protect the Registrar as a political appointee. This law violates clearly the international law, which protects the right to organize in spite of the elusive wording of the article. By section 31, moreover, the Registrar is authorized to reject registration of a union in these cases:

1) “If the formation of a union contradicts “provisions of the law,” although it is the right of workers, in essence, to form unions to abrogate the law;

2) “If the names of unions are confusingly alike.” This possibility, however, is used in commercial law, not in union laws. Even if names of unions are alike, the names might be clearly differentiated; but the unions shall not be suspended;

3) “If a union carries out adequately ‘the same aims’ that an applicant union wishes to carry out.” This latter restriction, however, is the worst of all because, according to the law itself, the article prescribes by law specific goals for all unions, irrespective of the unions' right to define their own goals.

The Registrar may suspend or cancel union elections. The international law prohibits Authority intrusions in union formation, activities, or elections. The law in question violates this prohibition by section 32, which allows the Registrar to cancel elections of any union “if he thinks” that the election procedure is not correct. The Registrar may then order a union's re-election or suspend its election all together.

The Registrar may suspend Unions. Section 33 entrusts the Registrar with the powers to suspend or liquidate a union or a professional association, which is strictly prohibited by international law.

The worst violation lies in the section's legal justifications: a) if the union violates the rules of this law or its ordinance; b) if the union committee has been formed in violation of this law or its ordinance; c) if the committee fails to execute the aims of the union; and d) if the committee commits a violation of any law that regulates labor relations, or any other enforceable law.

A workers' union, not the Registrar, has the right to violate this law as well as resisting and struggling to abrogate it. Workers have the right too to hold accountable the committee that fails to make true union objectives. But the Minister might suppress the workers to join “his unions” for Section 36 makes it possible for the Minister to issue an ordinance to regulate execution of the law. This includes the making of ordinances for the organization of unions, which violates grossly the freedom of unions and the right to organize.

The ordinance of workers' unions (2001) illustrates clearly the non-constitutionality of this law, which demands its immediate abrogation. The ordinance includes unions formed by the Minister, not by the workers' free will. The Minister might decide that “his unions” shall be organized according to the establishment, sector, industry, employer, province, or state, i.e. all labor force of a certain establishment might become members of the one union. If the establishment is a hospital, for example, the one union available in the hospital will include physicians, nurses, sisters, pharmacists, and all other workers and employees of the hospital.

The authority to form general unions has been delegated to the Registrar to add workers to the union, or to exclude others from it, or to form new unions: "The Registrar may amend provisions for the formation of a union, on the recommendation of Federation, whenever it is necessary for him to do so." The law of professional associations reiterates the same persecution already practiced against workers. In both cases, the Minister and the Registrar violate grossly the international law.

The law of Voluntary Work violates the Interim Constitution. Section 4 defines voluntary and humanitarian work as “the kind of work that aims to present voluntarily humanitarian assistance and relief or public service or human rights activities or protection of the environment or improvement of the economic and social standards of the beneficiaries.”

The limitation of areas of service for voluntary work violates the right to organize. A voluntary organization has the right to define freely the area of its activities. But the section eliminates the right of people who wish to form a gender organization, or a society to eradicate harmful habits or to combat tuberculosis in Easter Sudan.

Section 7 (2) of the law stipulates "a civil society organization registered by this law is not allowed to receive money or grants from a foreigner inside the country or any other source unless approved by the Minister." This restriction does not circumscribe only the right to organize; but it confiscates the freedom of assembly in violation of Article 27 (4) of the Constitution. The restriction is not based on those prescribed by Article 22 of the International Covenant on Civil and Political Rights. Even if an organization is accused of abusing funds by criminal acts, such accusation may well contradict the principles of fair trial by Article 34 of the Constitution.

Evidently, the Authority wants to dominate popular organizations by defining their functions in the narrowest terms possible, supervising memberships, and holding over finances. The Minister is empowered with the authority to deprive organizations from grants and financial assistance. All this constitutes violations of the freedom of assembly. If the Minister refuses to approve funding of an organization, the latter will cease to exist.

The Interim Constitution (Articles 139, 194, and 195) allows the Central Government, South Sudan Government, and States to receive foreign grants and financial assistance. How could it be possible for a law to deprive civil society groups from grants by a Minster's decision? Is the Minister more patriotic than leaderships of the Civil Society? This restriction is not based on international law.

The law empowers the Minister to stop grants without objective justification. This authority does not do justice to the right to equality before the law. The Minister's decision is an administrative decision that can not abrogate the constitutional right guaranteed by Article 35 of the Interim Constitution for a plaintiff to protest it. The law, however, curtails the right of unions to protest administratively the Minister's decision.

At this point, we must ask: is it possible for the executive authority to suppress the right of civil society organizations to exercise the right to organize? The right to receive foreign grants and financial assistance is a right to fuel these organizations. The Constitution legalizes this right to the governments of the land in their different levels. To surrender this right to the Minister is undoubtedly non-constitutional.

The Way for International Community to Help

The threatening nature of the NIF/NCP non-democratic authoritative rule is an underlying reality of the GONU structure and workaday performance. Little wonder, most panelists in the NED conference on elections joined the 20-year grievances of the Sudanese civil society since they expressed very grave concerns for the non-compromising policy and the negative attitudes of the NIF/NCP GONU – a situation that posits a real threat to the smooth process of elections 2009.

Regardless of the participants’ realization of the possibilities of delaying the elections until after the July 2009 rainy season in the South, equally with the national and international determination to end the crisis in Darfur and the other escalated conflicts in the North (such as the Manasir and the Nubian rejection of the government dams and resettlement plans), the tendency of the NIF/NCP to monopolize the elections by all state powers, laws, and treasury prerogatives make it almost impossible for the financially impoverished, legally deprived, and politically marginal bulk of the Sudanese voters to secure fair competition in the next elections.

Many writers have alarmingly monitored the CPA-legitimizing provisions for the NIF/NCP upper-hand policy-making which overrules “legally” over all Sudanese individuals and civil society groups throughout the transitional period to democratic rule (2005-9). Unfortunately, the NIF/NCP rejected fiercely all wise proposals by the parties and the other civil society groups to grant land, open up the media, and abrogate all restrictive or authoritative laws towards democratic election in Sudan, emphasized the Khartoum National Center for Peace and Development.

Aware of the government’s non-censored control over the treasury financial resources, which have been abused since 1989 up to the present time by the ruling party in a wide range of preparatory activities in and outside Sudan for elections 2009 via the pro-government Islamic agencies and voluntary organizations, the vast majority of civil society groups (including a great many non-registered NGOs) rejected a government offer to finance them with public money in elections 2009.

“The difficult realities in term of   hectic debates and lengthy deliberations over the issues of reforming the NIF/NCP arsenal of coercive laws before the time of elections” admitted by the Secretary General of the Council of National Unity Parties Mudawi El-Turabi before the conference, render it “almost impossible” to accomplish the desirable law reforms timely. This statement was critically tackled by the comments of several participants concerned with the African, American, and international elections:

“The procedure of the Council to collect academic studies on the laws in question to be further screened by members of council, and then presented to the National Council for decision-making, should have been replaced by direct appeals to the large Sudanese public in open meetings about the laws at the town councils and other popular gatherings,” suggested an observer from the US House Foreign Affairs Committee.

“In spite of its historical experiences and confidence, the civil society is in dire need to modern programs and training activities to participate actively in elections 2009,” confirmed Zeinab Abdelkarim on behalf of the International Foundation of Electoral Systems. In this writer’s view, in the light of the GONU elusive policies to subdue civil society, the International Community is largely required to intervene with all possible assistance to help the Sudanese non-governmental groups in elections 2009. This call on donors and democracy groups urges the International Community to establish direct relations with the Sudanese civil society, namely the political parties, the trade unions, the professional associations, and the human rights and democracy groups.

The fact that the NIF/NCP ruling group is determined to rule by itself for itself to eternity, instead of planning and acting as a truly transitional government whose constitutional role is specifically stipulated by the CPA and the Interim Constitution to prepare the grounds for fair elections in order to pass the country’s governance to a democratically-elected rule, testifies to the willingness of the NIF/NCP regime to monopolize power by all means possible at the expense of ensuring fair and just national elections in the year 2009.

Despite immense pressures by the Sudanese people and the International Community to force the GONU to convene an all-Sudanese national conference to resolve the crisis in Darfur and to correct the country’s march to the permanent democracy and sustainable peace, the Bashir presidency is not really interested in the goal-achievement of this global concern. Elusiveness, non-compliance with international obligations, and a spiral of false pledges and promises of national reconciliation continue to mark the routine movement of the government and its president.

Popular legitimacy versus Authoritative Legality

The International Community is required to engage in active contacts with the Sudanese civil society groups, including Sadiq al-Mahdi and the Umma, Mohamed Osman al-Merghani and the Democratic Unionist Party, Mohamed Ibrahim Nugud and the Communist Party, as well as all other leaderships of the Sudanese non-governmental groups with a view to assist them to the maximum degree possible with training programs and the other necessary preparations these major sections of our society highly need to participate in elections 2009 on equal terms, as much as is possible, to compete fairly with the authoritative, repressive, and monopolistic NIF/NCP government.

It is well-known in the Sudanese heritage of civil society activities and national elections that a government unwilling to come to terms with the Will of People to exercise the full enjoyment of all natural freedoms and fundamental rights deserves nothing but a blind eye from the public. “A Sudanese human rights organization is absolutely free to function from any place on earth, with due respect to the host laws and the dues of transparency and accountability, in the interest of our beleaguered people,” affirmed the self-help SHRO-USA President Nuraddin Manan (in exile).

A long list of Sudanese civil rights groups has already applied this rule of People’s Legitimacy vis-à-vis the repressive legality of the GONU. As they work directly with the popular movement of the country (in full rejection of any contact with the abusive GONU, Minister or Registrar), these organizations have been increasingly advancing the cause of peace, democracy, and freedom on solid grounds by a large number of monitoring committees, training programs, and the regular functioning of clandestine assemblies and executive committees inside the country, assisted by devout activists in the service of people, irrespective of the NIF/NCP legal arsenal of coercion and administrative suppression, or the notorious curtailment of civil rights and fundamental freedoms.