Transitional justice in Sudan’s CPA
Is it for conflict resolution or for mediation of post cold war power interests!!!
By Elhaj Hamed M.K. Haj Hamed
September 15, 2006 — The epithet “transitional” is an indicator of a type of governance that moves a solid totalitarian system by diplomacy and power interests’ pressure to redress the system of governance, in general, and to insure by the end of transition a coherent system of justice in place. The term is used for a comprehensive reform process that transcends correlates and characteristics to causes. So the attempt here is to see the concept and practice of transitional justice in Sudan.
One can confidently designate the country’s justice, since independence in 1956, as a system in transition. It used to be instated by foreign powers or by national military and civilian governments, or even by all of them as in the case of the Comprehensive Peace Agreement (CPA), which we may call a new development. The history of conflict in Sudan gives is one of the longest in the world, as it flared up in 1955, continued until 1973, seceded for a decade, and then flared again until the signing of the CPA on January 9th 2005. Unfortunately, Darfur flared up before completion of the 6-year transitional period that is stipulated by the CPA to help the warring factions to work for an attractive unity between the north and south with a referendum in the end of the transitional period. The country dropped back into a situation of protracted conflict. Under such quick-sands’ politics, this analysis uses a political economy approach to fathom the depth of changes that have been emerging in the transitional/ global competition for markets of raw materials and strategic influence, as the whole world moved from the Cold War Era to globalization.
This paper also attempts to see the latent theoretical frame set and ideological problems of the CPA, which has been based on a model that misrepresents the reality by presenting it a conflict of identity between an Arab-Muslim North and a Christian-African South. Such a model addressed only the symptoms of conflict, rather than its causes. The paper claims that the conflict of identity approach is engraved in the kind of a state system established by colonizers. B. R. Rubin is quite correct in his assumption that if this model is not avoided, the peace process will be sluggish, if not falling apart.
THE LIMITATIONS AND OPPORTUNITIES OF THE CPA
Fixing this failure model was not the choice of warring factions. This was clear from the fact that the 1st Machacos protocol, which was signed in the 20th of July 2002, opened the door for the signature of a security arrangements’ framework signed on September 26th 2003. The security arrangements indicated a way of reform that recognized the cause of conflict in the national system of governance handed over by colonization. This is namely a system that granted the “political elite” a free hand on the other state institutions.
During the time that lapsed and the January 9th 2005 signature of the rest of the protocols, we can trace how the international moderators’ and national negotiators’ political fortunes have been put far ahead of a standard transitional justice process.
WHAT IS TRANSITIONAL JUSTICE?
From a number of works, one can infer that “transitional justice” is a functional term, rather than a philosophical category. The term conceptualizes the existence of legal arrangements in post-conflicts to ensure good democratic governance and the rule of law. These must be clearly defined legal frames to reduce mass violence or any systemic human rights abuses. It involves prosecuting perpetrators, revealing the truth about past crimes, providing victims with reparations, reforming abusive institutions and promoting reconciliation . Measuring these pillars of performance to evaluate the CPA’s standardized transitional justice, it appears clearly that these pillars have been over sighted. The Power Sharing Protocol concentrated on a quota system between the two signatories, which created a body polity in the hands of the rebel groups in the south, excluding all other southern groups and strengthening the National Congress government in the north. This simplistic power-sharing vision indicated to the signers having a track record of human rights abuses, genocide and summary trial and are both held accountable for war crimes’ continuity. Relatively speaking, the northern ruling regime is so repressive that it tends to violate its own legal frames. In such situation, the absence of a basic code of standardized transitional justice indicates for the warring factions a road of continuity rather than a path of change. The forces of change, mainly the national and international civil society and human rights groups, found themselves without structures to moderate, facilitate and advocate for conflict resolution and sustainability of peace.
This is a structural deficiency in the CPA, for which international mediators are responsible, that renders the CPA in poor standing compared to the peace agreements of Angola, Rwanda, Liberia, and Sierra Leon. If this opinion is taken in consideration, it points to an interesting remark: namely that, the mediators were more interested in sustaining the basic structure of the State that had been handed over by the colonizers of Sudan – a state that managed imports/exports to sustain the social strata that governed the productive institutions and looked carefully for the interests of foreign partners to enjoy stability and growth. Such a state would not suffer protracted conflict if the international conflicting interests were not in harmony. The modern state built and handed over to the elites, graduates of the military and secular systems of education was delivered by the British colonizers when, as a reference power, they were still ruling the country. The national interest of gaining independence meant nothing for these strata other than taking up the helms of power from the British administration. Once this gain was achieved, these elites failed to articulate any minimum action of a common national program in their different trends or for the grassroots’ interests.
A major failure pertained to a prevailing disagreement between these national factions on a development agenda consistent with basic human rights and distinct independence for law enforcing institutions from the political leadership. These political strata also failed to balance their relations within the partnership members of the international and regional countries. This is clearly reflected in the movement of the spectrum of power from a civil pluralistic elected government to military governments. The country’s political history was tattooed by this strive since national independence in 1956. In 1956-58, a civil elected government failed to reach a national compromise about the international power struggle for neutrality and positive engagement. The same Cold War tactics, manipulations, and bloody competition compelled the ruling elite, left and right, to forward international market interests at the expense of local ones. The first military (58-64) regime came to save-guard the interests of the military, which felt that the civilian forces were insensitive to military aid from the west. The civil movement at the time was heavily leaning towards the left, which was against military alliance policies, and considered acceptance of military aid, especially from the USA, a break away from the non-alignment movement’s principles of which Sudan had been a founding member.
Paradoxically, the same forces that stood against the western military aid, used the space of democratization availed by the October 21st 1964 Popular Uprising that toppled the 1st military regime to accept an eastern one. This led to a shift for military hardware, especially after left-wing young officers toppled the democratically elected government that had already preached the ethics of democratic rule by accepting a motion from a minority fundamentalist group to dismiss the eleven left Members of Parliament (MPs). The verdict of the Supreme Court that affirmed the unconstitutionality of the MPs dismissal was not applied by the government. Thus, the left-wing officers took advantage of this constitutional conflict to topple the democratic government. The May 25th 1969 coup moved the government towards the eastern block. Far more important, the politically and partisan interference in the judiciary system ended completely any respect for the basic principal of the rule of law, namely the separation of powers.
Again in this “balancing” problem between international partnerships and the graduates of civil and military schools who took the helms of power on behalf of the majority of the Sudanese peoples of whom tenants and pastoralist constituted 70% of the total population. Time and again, these elite groups failed the same people when they represented them by the ballot boxes or by the force of arms.
The intensity of the cold war in the Horn of Africa between the Soviets and the American- led western competition reached a point of compromising the international human rights charter and the basic tenants of international law, namely using force by proxy to topple national regimes. The Soviets used Ethiopia as a base to destabilize Sudan by hosting and couching the Southern rebel SPLM. The Americans espoused the Ethiopian and Eritrean groups against the Derk. It seems the same failure of balancing national interests by the same graduates of military and civil schools within a frame of polarized international market competition for military and non-military commodities. That failure was, and still is, behind the failure of redressing the States inherited from colonization by a peaceful democratic process, which we may call transition to a national driven and sustained justice.
The democratically elected government, which came after the October 64’s popular uprising was toppled in June 30th 1989 by civil fundamentalists who were made to believe in a universal Islamic State. Such an ideological stand seemed to cover their anti-western agenda, thus it opened the borders of the country to the Ethiopian and Eritrean rebel groups. This was done under the pretext that the pro-Soviet Ethiopian regime was disallowing Sudan by using the SPLA/M to topple the regime to put on its place a communist atheist, anti Muslim government. From the prism of international law, good governance, and democratization, the western interests of winning points from under the belt accepted to ally with whose ever ideology didn’t recognize the international borders by informality of national boundaries. By so doing, and to make a window dressing for the scenario of interference, the fundamentalist regime was presented as an immoral regime ready for evil doing for its survival. While this image was well kept by the regime for the first seven years (see Amnesty international report, Behind the Red Line – 1996), the humanitarian crisis created by a scorched earth policy, that opened the door for the worst humanitarian crises and displacement, rewarded the regime by western countries through the United Nations’ Operation Lifeline shouldering the cost of relief by more than 3 billion US$ during that period. The regime took the subsidy happily to sponsor its fast growing military and security powers. A proxy alliance, thought the regime, governed the country. If the CPA were intended to solve the protracted conflict, the task here would be formidable as it became a complex one. The task needed, not only a look into local national and regional perspectives, as seen by the CPA protocols; but also involved clear handling by international justice institutions of the adverse effects reminiscent of the cold war era.
The post-Cold War Era witnessed more free movement of capital and commodities information and plurality. The trend was negatively influenced by the September 11th (2003) incident, which stimulated positive elements of the human civilization; but it also opened the door for regressive elements of militarism, terrorism, and anarchism.
The above details are very essential to see a zigzag road of reform within the context of transitional justice, as an innate component of these contradictory trends. An international system of justice composed of international and national civil society movement in the field of human rights and good governance (including fair trade movement) confronted the weaknesses of the CPA. The DPA replicated the CPA weakness by pushing for fixation of transitional justice institutions and lobbying for the involvement of ICC in the reform process of reinstating the separation of powers and genuine independence of the judiciary and the other law enforcing institutions. The Darfur conflict has clearly shown to the international mediators how their frame for the just rule was hindered by the rouge state. The partnership with the SPLM strengthened the totalitarian management of both the north and the south. It was an element that put all aspects of reform at the mercy of the GONU or the GOSS; both within the prevailing balance of forces, lubricated by Chinese produced oil vis-à-vis the justice process.
Rosana Lipscomb believes that the UN Security Council resolution 1556 referring the Sudan Government GONU atrocities in Darfur to the ICC is clear evidence that there are no reliable justice institutions, because the judiciary and law enforcing institutions are not independent on one hand, and are infested with people who committed atrocities against basic human rights; but they succeeded to do that simply because the line of demarcation between their roles as politicians on other state institutions was and is still blurred.
CONCLUDING REMARKS
The above narrative capsulated interlinks between a contradictory historical national process of resource management institutions defined as the State, a process of the separation of powers to sustain justice, and international development agenda. One can generalize the following remarks:-
1- The international justice institutions’ development was, and still is, weak a decade after the end of the Cold War Era. The main cause of this weakness seems to be in the tendency of the international powers to compromise the basic tenants of transitional justice instruments, the only tools that help produce a confident passage to peace sustainability. The ICC and other Security Council resolutions need a policy commitment to achieve democratization, reduce state-sponsored terrorism, and establish a physical move from protracted conflict to transitional justice. This is only possible by positive engagement of free and fair trade in development, associated with balanced international competition.
2 -The case of Sudan has clearly shown that the nation state left by colonization needs to be reformed with constructive engagement and not hegemonic strategic interests that lead to stagnation. These strategic interests have been strangling the CPA. The CPA institutions that may help the civil movement to protect the peace process, namely the human rights commission, the council for the freedom of religions, and a judiciary and federal transparent system, are not safe-guarded. To make an inclusive peace towards peace, the assessment and monitoring commission, which includes Norway, UK and USA, is quite idol. The World Bank is offered a multi-donor fund to tackle these two problems: that the bank system lacks the capacity of managing a transitional period; and that for every dollar donors put in the fund, the government puts three. Oil is spent to sustain the old regime and about 85-90% of the annual fiscal budget was and still goes to the military and security sector.
3- China, the main oil producer, has not yet learned the art of corporate business’ responsibility. To feed its energy-thirst economy, Chine applies usurious barter techniques to equip the Sudanese ruling elite with military hardware. The China-backed hegemony of the military institutions and their political elites is unprecedented in the north, south, east, or west parts of the country.
China fueled the sustainability of totalitarianism in cash and kind. It is the USA “anti terror” policy, however, that provided a window of opportunity for more than one hundred leaders (who committed crimes against humanity by war crimes, etc) to continue in office because of the US resenting of the ICC involvement, while the International Security Council resolutions (21 in total) were just words without deeds. The policy of these two powers is the main hurdle to the implementation of the CPA. The transitional justice package is already rife with weakness, if not non-existent.
RECOMMENDATIONS
The recommendations are set with a strategic objective that points to interlinks between development and democracy, as pillars for sustainable justice and peace.
1. The Government of Sudan is quite resourceful with oil, gold, gum Arabic, and other agro-forestry products. The current aid package, if donor ethics are based on human rights, must be expressed in practice by supporting the rebuilding of a vibrant civil society movement that is pro-ethics and non-partisan. The scientific community and the European CSO that are pro good governance must inform policy makers that sustaining rogue states in Africa and other hot beds of tensions, in general, and Sudan, in particular, means sustaining terrorism and regional instability. That wastes the chances for fair trade and makes a combined loss of resources for the European and American tax payers’ money. It should be remembered, in terms of good development policy, that military and security spending increases the cost of commodity production and reduces expenditure on social welfare, fringe benefits, and investment in technology development. It is one major lesson learned in the history of civilization: if globalization means a context of peace, it should stop that kind of colonial ideology that is well summarized in Cicle Rohds’s infamous words, “What were a few white lies to the ‘old savage’ when so much was at stake?”
2. The Government of Sudan and all governments of the different regions must strictly adhere to the norms of transitional justice and the basic tenants to curb the negative influence of political interference in the independence of the judiciary system. The military and security institutions must submit to the will of civil rule and justice enforcing clerks. Far more important, the government must be neutral to the civil society to provide a policy-conducive atmosphere on the basis of strict adherence to the bill of rights in the National Interim Constitution
3. The national CSOs interested in the advocacy and lobbying for good governance must develop a code of conduct that ensure they are not part of the security, the government, or the political opposition. All they need is committed non-partisan CSOs to firstly empower the process within the limited window of opportunity availed by the CPA for the fixation of transitional justice and taking it further to sustainable peace. One is confident that if a conducive-policy atmosphere is put in place, the Sudanese average social consciousness is the asset for such a process.
* The author is from the Khartoum based Social and Human Development Consultative Group (SAHDCG). He can be reached at
[email protected]