SHRO-CAIRO Position on Sudan Peace Deal and Constitutional Panel

*The Sudanese Human Rights Quarterly, Issue 19, May 2005

“The issues of integrating all these complex sets of constitutions are extremely difficult. They certainly lie beyond the national scope of the two peace partners. Therefore, the Committee on the Interim Constitution must be accommodative to a full representation of all political parties and civil society groups to maximize the possibilities of finalizing a viable national constitutional draft.”

Introduction

The North/South civil war that first broke in August 1955, a few months before the inauguration of the country’s independence, witnessed many attempts to make peace. The first of these attempts was made in the Round Table Conference in March 1965. The Addis Ababa Agreement was finalized in March 1972, and the Sudanese Peace Agreement (or al-Merghani/Garang Agreement) was signed on November 16, 1988. These attempts were short of achieving their goals due to different visions by the northern forces that dishonored the agreements or thought, as many governments did, that they might decisively win the conflict by military action.

Thirty months of hard negotiations were successfully concluded in the signing of the last two Peace Protocols between the Government of Sudan and the Sudan People’s Liberation Movement and Army (SPLM/A). The two protocols comprised an agreement on permanent cease-fire in the South and modalities of implementing the signed agreements; and another agreement on the pending issues concerning the sharing of power and wealth in areas neighboring the South in conflict. By signing these two last protocols, the number of agreements amounted to eight agreements that became known as “the Comprehensive Peace Agreement.”

The agreement would rule over a transition period of 6 months immediately after the signing of the agreements up until the end of another 6-years’ transitional period. Major features of the Comprehensive Agreement include:

The Machekos Protocol:

The most important provisions of this Protocol, which was signed on July 20, 2002, guaranteed South Sudan the right to self-determination and a referendum on independence by end of the stipulated 6 years. During these same years, Islamic Shari’a Law would be implemented only in the North.

The Protocol on Security Measures:

One of the most important provisions of the protocols signed on September 25, 2003 was a provision on the co-existence of two armies in the transitional period, the Sudanese Armed Forces and the Sudan people’s Liberation Army (SPLA). The Protocol provided for a cease-fire subject to international monitoring that would be enforceable from the date of signing the Comprehensive Peace Agreement. Integrated forces composed of 24,000 regulars (6,000 in South Sudan, 6,000 in Nuba Mountains, 3,000 in Blue Nile, and 3,000 in Khartoum) would be located in South Sudan, the Nuba Mountains, the Southern Blue Nile Province, and Khartoum. More than 10,000 regulars of the government troops would be deployed in the South to the northern parts of the country. The SPLA fighters currently positioned in the Nuba Mountains and the Southern Blue Nile Province would return to the South.

The Protocol on Wealth Sharing:

Signed on January 7, 2004, this Protocol provided for the equal sharing of the revenue of the South oil between the upcoming National Government and the Government of South Sudan in the 6 months’ period (before the next 6 years’ transition), including 2 percent of the total oil revenue that would be reserved to Oil-Producing States. The Protocol guaranteed the inhabitants of an oil-producing state the right to renew, or to reject, the invested oil contracts in their region. A national committee representing both governments would lay out the policy and negotiation for oil investments. The non-oil revenue, especially taxation and tariff, would be controlled by the South Government. The Protocol provided for an Islamic banking system in the North and a conventional banking order in the South.

The Protocol on Power Sharing:

Signed on May 26, 2004, this Protocol re-allocated the national executive powers such that the ruling National Congress Party (NCP) would have 52 percent of parliamentary seats. The remaining seats would reserve 28 percent for the SPLM, 14 per cent for the northern parties, and 6 percent for the southern parties. By Protocol, the SPLM Chairperson would assume the office of the First Vice President of the State. He would be sworn to the office within 2 months of the day of approving an Interim Constitution that would rule over the transition period.

Concerning the regional administration of North Sudan, the ruling NCP was granted 70 percent of the executive and legislative seats, the SPLM 10 percent, and the other political parties 20 percent of the total. In the South government, the SPLM was granted 70 percent of the executive and legislative seats, the other southern political forces 15 percent, and the ruling NCP 15 percent. It was also decided by agreement that both Arabic and English languages would be used as official languages of the State, and that the Southerners would get 30 percent of the government jobs in the national level.

The Protocol on Resolving the Conflict in Nuba and Blue Nile:

A significant provision of the Protocol signed on May 26, 2004, dealt with the three northern regions bordering the South (whose inhabitants were supportive of the SPLAM/A in the civil war). The protocol designated the sharing of executive and legislative powers in the Nuba Mountains and South Blue Nile Province such that the PCP would have 55 percent and the SPLM 45 percent. The governance of the disputed regions would be rotational: each side would assume the office of governor for half of the pre-election time.

The Protocol on Resolving the Conflict in Abyei:

By the Protocol signed on May 26, 2004, the inhabitants of Abyei were considered citizens of both North and South parts of the country. The Abyei inhabitants were privileged with the right to choose between the administrative statuses of their region in the north or that of the Bahr al-Ghazal’s region in the South.

The Protocol on the Permanent Cease-Fire:

The protocol signed on December 31, 2004, provided for the establishment of armed units composed of 4,000 regulars to be located all over the South and the three disputed regions – Abyei, Southern Blue Nile, and South Kordofan – in addition to an integrated armed unit in the National Capital Khartoum. The Protocol entrusted the administration of South Sudan with the financing of the SPLA troops during the 6 months of transitional rule. The National Government would finance the Sudanese Armed Forces and the integrated forces. The Protocol left the issue of financing the Southern forces in the long run to the National Council of the Transitional Period. The protocol cancelled the state of emergency in all regions subject to the Cease-Fire Agreement between the government and the SPLM/A. The emergency law would be abrogated all over the country, “except where it would not be permissible” to do so.

The Protocol on the Implementation Modalities:

As signed on the 31st of December, 2004, the Protocol set-up the time-tables and defined the roles and responsibilities of implementing the agreements in the transitional period. A chief feature of the negotiated tasks was the adoption of a national interim constitution within 6 weeks of signing the Comprehensive Peace Agreement. “This Interim National Constitution shall be the supreme law of the land. The Interim Constitution of Southern Sudan, state constitutions and all laws shall comply with it.” The First Vice President’s Office will be assumed by the SPLAM/A Chairperson, Mr. John Garang, in a national unity government that would rule the country for 6 years of transitional rule.

The SHRO-Cairo Peace Welcoming Release

SHRO-Cairo welcomed the peace agreement signed on January 9, 2005, as a possible basis to develop a consistent and peaceful transition to a stable democratic rule in Sudan.

Equally importantly, the Organization welcomed the agreement because it ended in both political and legal terms long years of civil war and human suffering. This distinguished achievement, however, does not mean that the Peace Protocols, in their existing form, are perfectly qualified to resolve the whole problems of the Nation, or that the agreement provisions are perfect.

In a press release (January 9, 2005), SHRO-Cairo:
“congratulated the People of Sudan in the South and in the North, the Mother Continent of Africa, and the whole International Community with the signing of the Naivasha Peace Agreements, which completed a historic formal ending of the North-South disasters of war by internationally-recognized treaty guarantees aimed to satisfy the yearning of our people for the achievement of the just peace, the sustainable development, and the regular democracy. SHRO-Cairo hopes that the two Peace Partners, the National Congress Party and the Sudan People’s Liberation Movement, would successfully accomplish the peace obligations conferred upon them by agreement, and the promise they both pledged to promote the Naivasha Accords to a nationally recognized consensus that should extend, on equal terms, the just and permanent peace, power sharing, and participation in national decision making to the other marginal regions, especially Darfur, the Nuba Mountains, Eastern Sudan, and the Northern Provinces as well.”

“The Organization reiterates the grave national, regional, and international concerns for the worsening conditions of the displaced people of Darfur and the escalated violence in the region; henceforth, the possibility of “taking a swift action” in the words of the United Nations Secretary General (January 8, 2005) to redress the situation. At this point, SHRO-Cairo emphasizes the Sudanese Appeal to the World on the Human Crisis of Darfur, which held the Khartoum Government “squarely responsible for the crisis,” and calls upon the International Community to work closely with the People of Sudan to end the crisis via a national constitutional conference.”

“The Organization emphasizes, in particular, the urgent need to ensure non-discriminatory representation of all political parties and civil society groups in the next Committee on the Interim Constitution. Most importantly, the committee in question should exercise firm consideration of all international human rights charters and conventions, as well as the Sudanese legal heritage and social realities, to democratize, with the peace spirit of the Naivasha agreements, the repressive law arsenal of the government in order to ensure the full enjoyment of human rights and public freedoms to all citizens, irrespective of faith, political stand, social status, or any other discriminatory criteria.”

“Specifically, the Committee should carefully consider clear provisions by constitutional law for accountability of authority abuses, as well as principled abrogation of all forms of physical punishment in the criminal law; the provisions against women’s rights in the family law and other legal acts; the heavy taxation policies; the state-imposed unevenly distributed zakah [alms giving]; and the other authoritative orientations that have been inflicted upon the public by the State media and press in 15 consecutive years of anti-democratic rule.”

“SHRO-Cairo is deeply concerned about the powers bestowed on the President to establish judicial bodies and a national human rights commission in consultation with the First Vice President, according to the Implementation Modalities of the Protocol on Power sharing, as adopted by agreement. The Organization is seriously concerned for the possibilities of executive and legislative intrusions in the Interim Period against independence of the Judiciary in light of the government’s purge of judges and the other unresolved injustices of the Sudanese criminal justice system.”

“The Organization hopes the next South and North Interim Governments would strongly maintain the Independence of the Judiciary, as a cornerstone of democratic rule. Besides the need to implement laws based on international human rights laws and the best of Sudan laws, Sudan courts must be strictly independent from the Executive. The Judiciary should be fully allowable to select its own governing councils, as well as the management of its legal and administrative affairs by judicial jurisdiction, free of presidential dictates or legislative interference.”

“Because the full enjoyment of civil freedoms and human rights is the strongest guarantee of a lasting peace and effective rule of law all over the country, the Organization urges the governing partners of the National Congress Party and the Sudan People’s Liberation Movement to act in the best interest of the Naivasha Peace Protocols to protect the untouchable right of civil society groups to establish their own Federation of Human Rights, as well as other human rights assemblies, free of any government intrusion or security orientation – let alone a presidential state-imposed commission – in accordance with the International Agreement on Civil and Political Rights to which Sudan is party.”

“SHRO-Cairo emphasizes further, the need to spend the oil wealth and other state revenues to increase the social and economic development of the Nation in order to fulfill the social and economic rights of people, as guaranteed by international norms. For this purpose, the already proposed enlarged military and security spending in the State Budget under the renewed emergency law should be effectively reduced.”

“Towards the achievement of this important end, the governing bodies of the country, as would be established according to the Accords, must reserve the largest share of the State financial resources in the post-conflict period for the necessary spending on social development (health, education, housing, and culture) programs side-by-side with the encouragement of local and foreign investments to generate the vital productive components of labor and employment, absorb the returnee citizens in decent conditions into their homelands, and reinstate the unfairly dismissed public service workers and/or employees throughout the last 15 years of anti-democratic rule to man, with the available working force, the Nation’s development in the Peace Era.”

SHRO-Cairo Critique of the Initial Implementation
One of the biggest shortcomings of the peace agreements is that the agreements did not mention a word about the gross human rights violations committed by the two sides in the course of the conflict, or others equally involved, or those solely committed by the Sudan Government under the state of emergency it harshly imposed on the country for decades to pursue war activities in the South and the other regions fo the country.

Many of these violations are prosecutable by international law. The non-mention in the agreements of the rights of the citizens victimized by these or other violations is not acceptable. Moreover, this negligence has certainly encouraged a continuity of human rights violations, one way or another, in other regions of the country, as was being frequently reported especially in Darfur.

The Protocol on the sharing of power (signed in May 2004) says that, in all levels of governance, Sudan will fulfill the duties prescribed by international human rights treaties and other instruments to which (Sudan) is a party.

The Protocol emphasizes the fundamental human rights, including the right to life and personal freedoms, the freedoms of expression, assembly, and religious beliefs, and the right to personal safety from tortures, or any other cruel treatment, dehumanizing, or humiliating punishment. In past performances, however, many of these rights were not observed by the governing groups.

It should be emphasized that human rights are not achievable by mere mentioning in protocols. Human rights are achieved by effective guarantees and actual protection measures. The agreements, however, did not give equal weight to human rights’ implementation. Nor did the agreements include any time-tables to guarantee these rights or to protect them, as was carefully handled with respect to the issues related to security matters and the troops’ deployment, or the preparation of an interim constitution and the referendum on self-determination in the South and the Abyei area.

All human rights issues should have been considered a priority over all other issues because international human rights norms provide a real guarantee to execute all democratic measures and procedures.

The agreements provided for the establishment of an interim government that would basically include the present-time government and the SPLM. In varying degrees, however, both partners are responsible for the commission of gross human rights violations, for example extra-judicial killings, abductions, rapes, tortures, and forced displacement for which they are legally accountable.

In principle, the unraveling of human rights violations or corruption, and the restoration of all due rights to the victims are inevitable conditions to ensure the permanent and the just peace. Therefore, all these crimes must be legally investigated under full submission to the Rule of Law by the next National and South Governments.

The persons responsible for the wrong-doing must be prosecuted before an Independent Judiciary, in accordance with the due process of justice. Under any circumstances, none of the human rights violations should be exempted from lawful accountability.

The Organization is gravely concerned the Sudan Government decided to extend the state of emergency all over the country shortly before the signing of the peace agreements. This action indicated clearly the government’s intent to restrict the fundamental rights and public freedoms, ban assemblies, and disperse demonstrations with un-restricted arbitrary arrests, as well as protecting the security forces by legal immunity, regardless of all their heinous crimes.

Another serious aspect of the agreements is that they failed to bring together all Sudanese parties to the Sudan’s Crisis, besides the fact that the agreements have been met with opposition, in varying degrees, in the North and in the South. Thus, whereas some parties welcomed cautiously the agreements, other parties put forward certain conditions, while a few groups rejected the agreements, all in all, since they had not taken part in the negotiations or been invited, in essence, to participate in the peace talks.

The agreements, as they stand today, are not perfectly comprehensive because they were not fully representative of the North and the South as a whole. Unless this shortcoming is resolved, the danger of a new conflict would not be removed between North-South, North-North, or South-South.

The Organization has consistently appreciated the conditions that led to the bilateral negotiations between the Khartoum Government and the SPLM to stop the bleeding war in the South. SHRO-Cairo, however, has equally pointed out the significance of incorporating all of the other political forces in the post-signing stage of the protocols.

The drive to democratic rule by rushing a national interim constitution in a short period of time is another problematic issue. The agreements signed by the two partners on January 9, 2005, and the non-democratic constitution of 1998 were considered constitutional references for the next interim constitution in spite of their contradictory contents.

The structure of the committee to draft the interim constitution granted the two partners a majority to approve it on their own right because they posses 80 percent of the committee’s membership (52 for government; 28 for the SPLM), whereas approval of the draft requires only two thirds of the membership. The other political constituencies of the country and civil society groups that include women, human rights’ groups, and legal experts have been largely marginalized in this fundamental activity.

It is true each party to the agreement “is required to ensure participation of the civil society.” And yet, this provision is not a sufficient guarantee for a real or effective participation of the civil society. It is extremely important that the membership of the committees entitled to review the constitution, human rights, or civil service be selected on the basis of honesty, autonomous stands, and non-partisan commitments.

Additionally, the peace agreement, as signed by the government and the SPLM, has been placed above the Interim Constitution should any contradiction occur between the adopted references. The two peace partners alone, nonetheless, have been empowered with politically-controlled legislative institutions to overcome such difficulties.

The shortcomings of the agreement include the existence of other contradictions such as the use of discriminatory criteria with respect to citizens. According to the agreement, “Nationally enacted legislation applicable to Southern Sudan and/or states of Southern Sudan shall have as its sources of legislation popular consensus, the values and the customs of the people of the Sudan, including their traditions and religious beliefs, having regard to the Sudan’s diversity.” At the same time, “Nationally enacted legislation having effect only in respect of the states outside Southern Sudan shall have as its sources of legislation Sharia and the consensus of the people.”

Accordingly, there would be a variety of constitutions in the same Homeland: “Islamic constitutions” for the North and a “people’s constitution” in the South. Also, special “constitutional arrangements” would be established for the Blue Nile, Southern Kordofan, and Abyei. The National Capital Khartoum would be governed by “a national constitution” that might turn into a form of Islamic governance.

The issues of integrating all these complex sets of constitutions are extremely difficult. They certainly lie beyond the national scope of the two peace partners. Therefore, the Committee on the Interim Constitution must be accommodative to a full representation of all political parties and civil society groups to maximize the possibilities of a finalizing a national constitutional draft.

By agreement, “A dual banking system shall be established, and shall consist of an Islamic banking system that shall operate in Northern Sudan and a conventional banking system to operate in Southern Sudan” This situation would require convertible banking transactions in different geographical locations. It also entails a deprivation of Northern states from privileges allowable in the Southern states.

Not only that the agreement grants the two partners a hegemonic status over all legislative and executive bodies of the transitional government. The agreement further extends the same powers over technical committees, civil and military institutions, and other modalities.

Despite the agreement’s recognition of the need to bring about social change in all aspects of life, the agreement doesn’t consider the need to develop these institutions by constitution unto “a national identity.” The agreement refers only to an incorporation of both sides of the Protocols “in shared institutions.”

The fact of the matter is that all State bodies and institutions have been previously converted by the NIF military rule to partisan bodies under full control of the ruling party. The latter has already purged the National trained personnel of the civil and military service of Sudan. Therefore, it is not enough to rely on the good wishes or intentions of the two partners to establish a national army and a national civil service: the two signers of the peace agreement must not act as a sole decision maker on the key issues of the Nation.

Gravely enough, the People’s Defense Forces (PDF) have not been discussed in the January agreement. The PDF, which the Khartoum rulers are determined to sustain, is a militia group established and controlled by the NIF ruling party since the advent of the Inqaz military coup in June 1989 to intimate the opposition.

Furthermore, the peace agreement has not mentioned a word on the destruction of the civil service by the Inqaz rule (1989 to the present time) and the need to reform it by democracy.

SHRO-Cairo believes that within the frame of the signed peace agreements, any change that might be possibly enforced in the civil service, security, and military bodies would be inevitably modeled on the same partisan mode of the legislative and executive arrangements of the protocols.

The Organization feels there is a dire need to establish new State apparatuses to restore formally and contextually the National Identity of the Sudan’s civil service, armed forces, police, and security departments.

The independence of the Judiciary has not been clearly stated in the agreements, although it constitutes the cornerstone of the transition to democratic rule and the permanent and just peace.

The cultural rights of citizens in the National Capital Khartoum are ambiguously mentioned in provisions of the agreement. For example, the Protocols speak about “behavior based on cultural practices and traditions which does not disturb public order, is not disdainful of other traditions, and not in flagrant disregard of the law shall be deemed in the eyes of the law as an exercise of personal freedoms.”

The kind of culture or the habits that the text addresses in Sudan as a multi-cultural society, should have been carefully specified simply because the identifiable culture by agreement might well be the culture adopted by the prevailing laws of the ruling regime.

While the agreement exempts the non-Muslim population of the National Capital from Shari’a rules, the agreement doesn’t indicate, in clear constitutional terms, the status of the non-Muslims in the other regions of the North or the status of Muslims in the South.

The Sudan Human Rights Organization Cairo Office ascertains the importance of the Bill of Rights, i.e., the human rights and the public freedoms included in the 9th of January documents and the need to commit Sudanese governance to all human rights norms, not only those thus far ratified by the Sudan Government.

The Organization calls on all of the concerned parties to implement effective measures to realize the full enjoyment of human rights and public freedoms, as top national priorities, in a specified time-table by agreement.

The human rights’ priorities must embrace the international obligation conferred upon the Government, as a party to the UN treaty-bodies, to surrender the suspects referred to the International Criminal Court for investigation about the crimes, which might include genocide, committed against humanity in Darfur.

Chief among the fundamental rights and freedoms, the Organization emphasizes:
– The enjoyment of the right to life, as a right that must be ascertained by full legal accountability of all suspects who involved themselves in the commission of extra-judicial killings or other murders, whether they were members of the government forces or any other warring group.

– The full enjoyment of public freedoms and personal security, as a right that is ascertained only by the principled application of effective measures and immediate procedures to improve the conditions of refugees, displaced people, and the other victimized groups.

– The right to personal safety to live freely from tortures or any cruel of degrading treatment. This right cannot be recognized without abrogation of the Emergency Law and its special courts, and the ongoing repressive laws, including the Criminal Law that continues to inflict the cruel, dehumanizing and humiliating penalties of flogging, limb amputation, execution, and crucifixion on people.

– The right to personal safety from tortures will not be ensured in the next transition without legal accountability of all those who involved themselves in the reported murders, tortures, abductions, rapes, or the kindred all over the country.

– The right to live freely from arbitrary arrest or detention and the right to a just trial. These rights wouldn’t be ensured while the security authorities enjoy an upper hand over the rule of law, arresting without charge, depriving arrestees or detainees from legal consultation and family visitation, or detaining people for unspecified periods of time to penalize them, in advance, for their views or political stands. The right to personal safety is not applicable without effective presence and functioning of an Independent Judiciary.

– The right to the freedom of expression, association, and peaceful assembly. These rights cannot be realized with the unabated harassment of people by the Authority, the censorial activities against the Press, or the suppression of peaceful demonstrations, as occurred in Port Sudan this last January.

– The right to citizenship without any discrimination on the basis of ethnic origin, religious beliefs, or sex. This right would not be guaranteed when the government takes sides with or against a specific ethnic group, imposes certain religious rules, or persecutes women with curtailments and suppressive laws.

SHRO-Cairo believes that the persistent violence in other regions of the country, especially in Darfur, posits a permanent threat to the Peace Agreements. The instability of Western Sudan would overshadow the possible stability of the neighboring regions, North or South.

The continuity of the humanitarian disaster of Darfur will negatively affect the ongoing efforts by the International Community to support the construction programs stipulated by the agreements in South Sudan.

The People of Sudan has already experienced the fact that it is impossible to re-construct the Homeland in any acceptable way when anti-democratic governance continues to suppress the social life with state repression and emergency laws, let alone the ensuing violence.