Undeniable genocide by the executive; what about the judiciary?

By Mahgoub El-Tigani

December 15, 2008 — It appears that after five consecutive years of the killing and destruction of the Darfuri humans and societies by the government’s military and militias, the Sudanese criminal justice, in turn, continues to condemn hundreds of Darfuris with death penalties, as reported in the past few months alone (see for example, the Sudanese Human Rights Quarterly Issue 27).

The size and the intensity of executions leave little doubt to believe that, by using legal powers or even illegal authorities to control Darfur, the so-called NIF “Islamic” rule pursued unrelenting genocide of the people of Darfur. It is, therefore, the duty of all those interested in the due process of law to voice the “Biggest No” to the genocide and to the government that never ceased to commit genocide in gross violation of both constitutional and international laws.

To illuminate this situation, it is expedient to highlight abuses of the constitution by the president whose prosecutable deeds the government intended to defend in confusion with presidency duties, whereas the president’s incumbency and personal accountability is legally independent from the presidency’s entity, as well as the national executive’s, by provisions of the National Interim Constitution.

The government’s groundless defense of the president, however, is incomparable with the insistence of many courts to sentence to death hundreds of the Darfuri homicide cases without applying the minimum standards of fair trial, which subjects them to hasty executions by the violent nature of the regime.

THE GOVERNMENT’S DEFENSE:

The government thinks of the office of the president o the one hand and the incumbent on the other as the same and one entity. This confusion is meant to venerate the latter rather than absolve the former with a view to protect the incumbent from the burdens of political liability and criminal responsibility.

Earlier, the NIF insisted in ideological claims that the head of state was simultaneously “the symbol of spiritual faith and the treasure of earthly affairs.” When this strange doctrine was applied by military coup, the NIF empowered Bashir, head of the coup, to act as the most authoritative state body – a “sovereign” who represented the state with superior powers over the legislative, executive, and judicial bodies of the state.

From day one of the coup up to this time, the head of state approved hundreds of executions of army personnel under heavy fire squads, as well as thousands of civilian killings by direct military action, or by unfair trials. On April 26, 1990, for example, the president approved the extra-judicial killings of 27 army officers added to unidentifiable number of non-commissioned officers and regulars on Ramadan (April), 1990. Thereafter, scores of army, police, and game officers were extra-judicially killed in Juba.

The massive raids of Darfur villages and displaced camps by army troops and jangaweed militias ignored the minimum standards of the due process of justice with respect to the rights of the suspects or accused persons to judicial investigation free of tortures, legal consultation and visitation, etc., in accordance with the Shari’a law, as well as the other national and international laws that the government painstakingly adopted in the Constitution’s Bill of Rights.

Offering meaningful advisements to the ruling regime to guarantee the rights of people, many judges, lawyers, and human rights activists criticized the criminal justice – to no avail. The government implemented repressive laws against the civilian opposition with no remorse, in addition to pursuing lawless violence to curb the escalated popular resistance to the government’s persistent assaults in Darfur.

Perhaps a decisive end of this recklessness towards interests of the people and the land came about by the clear accusations of the International Criminal Court Prosecutor General against Omer Hassan Ahmed al-Bashir, a Sudanese citizen whose indictment for crimes against humanity summoned him to clear his name from the alleged accusations, apart from the office of the president or the presidency.

The Sudan’s Presidency is a state constitutional body that the ICC Prosecutor did not charge with the indictment of Omer al-Bashir. Indeed, the prosecutor affirmed full respect to the sovereignty of the country and its presidency, which constituted a major fact in the indictment of Bashir.

The indictment dealt with a Sudanese national who has been accused of egregious crimes, including acts of genocide in Darfur, regardless of his presidential position. For the Sudanese people, the accused national was said to have used his presidential powers to destroy the region and its habitants, instead of using his authoritative office to insure “the safety and well-being of the nation.”

SEPARATING INCUMBENCY FROM PRESIDENCY:

The composition of the national executive is embodied in Article 49 of the Interim Constitution: “The National Executive shall consist of the Institution of Presidency and the National Council of Ministers.”

The constitution designates composition of the presidency as follows: Article 51. (1) “The Institution of the Presidency shall consist of the President of the Republic and the two Vice Presidents; (2) There shall be partnership and collegial decision-making within the Institution of the Presidency in order to safeguard stability in the country and implement the Comprehensive Peace Agreement.”

The methodology of running presidential affairs is founded on partnership and collegial decision-making with which all incumbents must comply. By Article 63, the functions of the vice presidents include “(1) (a) act in the absence of the President.”

The functions of the three top positions of the Presidency indicate the legally accountable, bureaucratic body of the presidency. At one point, the presidency (the president and the two deputies) might adjudicate on behalf of the presidency as the highest national executive; in other cases, however, the incumbents, individually or as a group, might be impeached by Article 60 (2) of the constitution.

Article 60, Immunity and Impeachment of the President: (1) “The President of the Republic shall be immune from any legal proceedings and shall not be charged or sued in any court of law during his/her tenure; (2) Notwithstanding sub-Article (1) above, and in case of high treason, gross violation of this Constitution or gross misconduct in relation to State affairs, the President may be charged before the Constitutional Court upon a resolution passed by two-thirds of all members of the National Legislature.”

Prosecutor Ocampo did not accuse the Sudanese Presidency as a whole; but he singled out the accused person, Omer al-Bashir, from his other partners with accusations embracing him whether he stays in the office or leaves it.

CONSTITUTIONAL CONTRADICTIONS:

It is important to point out contradictions of the Interim Constitution in handling the National Executive whose leader, “The President of the Republic is the Head of the State and Government and represents the will of the people; he/she shall exercise the powers vested in him/her by this Constitution and the Comprehensive Peace Agreement” (Article 58.1).

The president is further authorized by Article 58 (e) to “summoning, adjourning or proroguing the National Legislature.” According to Article 91 (1), however, “the National Legislature represents the popular will and shall foster national unity, exercise national legislative functions, oversee the National Executive and promote the decentralized system of government.”

The question is: How would the National Legislature (i.e. the National Assembly and the Council of States) exercise “overseeing the National Executive” whose chief, namely the president, is able to “proroguing the National legislature” and is endowed with enormous powers as “head of state government and representative of the will of the people”?

The NIF control over national decision-making enabled the national committee which drafted the Interim Constitution to produce a draft full of contradictions, as previously illustrated. The draft was later approved without consideration to a strong call by the opposition parties on the government to remove all contradictions of the draft.

The NIF/NCP defense of the president has been manipulating constitutional contradictions to urge the Sudanese political parties and civil society to deem the ICC prosecutor’s indictment a direct assault on the “presidency, the sovereignty of state, and representative of the will of people.”

This urge, nonetheless, is a clear misreading of the constitutional text. Theoretically and for all purposes, the executive, legislative, and judicial powers should be sharply separated. Because of the abuse of constitutional contradictions by the NIF/NCP, however, the post-election government in 2010 would have to straighten out this mess.

The ruling party is quite aware that the Imama (presidency in Muslim heritage) is a concept that is formally differentiated from the Imam (the incumbent president). Relatively speaking, the presidency is a static structure, a permanent body of authority; but the president, Imam or Caliph, is an incumbent of a terminating official post. Religion is immortal, but a person in whom state powers are vested to run public affairs is conceivably mortal, etc.

The incorporation of the Imama or Presidency in the person of the incumbent president to monopolize both spiritual and worldly powers is illegal by constitutional law and is null and void by the Shari’a authenticated rules and the heritage of the well-reputed Caliphs. The NIF/NCP ruling groups, nonetheless, imposed this incorporation on the National Interim Constitution to service their own partisan interests.

The flaw of this incorporation has been promptly abandoned by the Attorney General in the testable case of the indicted president since the former hurried to hire a western legal firm to defend the latter. This costly defense, however, adds a new burden on the state treasury, which has been largely robbed by the NIF corrupted administration, according to annual reports by the General Auditor of the Republic.

The government made so much cry with little wool to nullify the international indictment in principle, instead of seeking appropriate legal measures to resolve the conflict in accordance with the ICC procedure. The government furthermore ought to provide logical explanation of the attorney general’s new defense expenditure, which is not supported by law, simply because the ICC indictment pursues the personal accountability of Omer al-Bashir, not the legal person of the Presidency.

The President ought to resign his position, or he might be impeached by the National Assembly for the heinous genocide and the other crimes he has been directly accused of committing against humanity by the ICC Prosecutor. The president’s stay in a seat of presidency encourages more abuses of authority by the state bodies under his command, especially the National Security and Intelligence Service (NSIS).

The NSIS has been tampering with the constitution in many ways. For example, the NSIS harassed the civil society and the press for exposing the president’s indictment to the public. Most recently, activists of SOAT in Sudan and the Khartoum Center for Human Rights were arbitrarily arrested, tortured, and might be further accused of high treason for contacts with the ICC. These shameless deeds rule out the possibilities of decent reforms within the existing governance and system of rule.

PATTERNIZING THE DEATH SENTENCE:

The Sudanese Judiciary maintained high-esteem throughout the history of Sudan in the eyes of a people concerned with justice and the due process of justice by an independent judiciary to safeguard the constitution and to preserve the public interests and the legal rights of citizens.

At this point, the judges’ stand by the side of people and the rule of law must be highly appreciated in the light of the popular uprisings by which the Sudanese challenged repeatedly their repressive governments and regained democratic rule. It is equally important to emphasize the urgent need to reinstate the dismissed Judges side-by-side with the other purged employees of the public service who still are willing to serve in government departments as qualified professionals.

Articles 122-132 of the Interim Constitution stipulate competencies of the Constitutional Court: Article 122. (1) “The Constitutional Court shall uphold, apply and enforce this Constitution, the constitutions of Southern Sudan and the states and its decisions shall be final and binding.” The CC shall interpret the constitution; decide disputes that arise under the constitution; have appellate jurisdiction on appeals against constitutional decisions of Southern Sudan; and protect human rights and fundamental freedoms.

On the National Judicial Authority, Article 123 dictates: “(1) The National judicial competence in the Republic of the Sudan shall vest in an independent authority to be known as the “National Judiciary”; (2) The National Judiciary shall assume judicial powers in adjudicating on disputes and issuing judgments on those disputes in accordance with this Constitution and the law; and (3) The National Judiciary shall be independent of the Legislature and the Executive.”

The NIF/NCP committed gross violations of the constitutional provisions under consideration: The president’s personal position is conceptualized as a manifestation of the Presidency constitutional body to protect Omer al-Bashir from the ICC indictment; the Judiciary fails to apply punishable measures against criminality of the government while it undermines the legitimate right of Darfur people to fair trials.

How did the government security forces, attorneys, and courts handle the cases of the Darfuri accused persons who were presumed innocent until proven guilty by law? What kind of justice the courts performed on the accused Darfuris in crimes punishable by death?

Were the accused granted the right to defense and fair trial, or was the government’s violence terrorizing Darfur since the only sentences usable by courts against the Darfuris was the death penalty? What about the other non-death penalties allowable by the Sudanese criminal law?

Because the execution sentences imposed on the accused persons in recent years were largely implemented on Darfuris, it is indeed regrettable to witness the National Executive and the Judiciary apparently implementing death sentences selectively on inhabitants of Darfur or nationals of the Darfuri descent in the National Capital Khartoum, as well as other cities of Sudan.

Hundreds of executions were applied or are pending before the appellate authorities. Of the latter, the cases of Ishag Mohamed al-Sanoasi (72), ‘Abd al-Hay ‘Omar, Mustafa Adam, Mohamed Bargid, Hassan Adam Fadl, Adam Ibrahim, Jamaladeen ‘Eissa, ‘Abd al-Magid ‘Ali ‘Abd al-Magid, and Sabir Hassan are pending decision of the Constitutional Court.

“They are all Darfuris, except one person,” stated Amnesty International in a news press issued on November 28, 2008. Death sentences, however, have been consistently made into a pattern against Darfuris, according to reports by the Sudan Human Rights Organization – Cairo on hundreds of cases in the past few months.

The Supreme Court approved the death sentences on the Darfuris accused of killing journalist Mohamd Taha, editor of Sudanese newspaper al-Wifaq, who was found beheaded in Khartoum on 6 September 2006. Only the case of al-Tayeb ‘Abd al-‘Aziz Ishaq, a child in his fifteenth of age, was commuted to 4 years imprisonment from the date of his arrest in October 2006.

“During the investigation into his murder, the police and the security services conducted large-scale arrests focusing mainly on the Darfuri community of Khartoum, and rounded up some 72 people. Most were released, while nineteen people, all but one of Darfuri origin, were brought to trial. In August 2007, nine of the nineteen defendants were acquitted and released after almost one year in detention,” reports Amnesty.

“The defense lawyers have now filed an appeal [by provisions of Article 121 of the Interim Constitution] against the nine death sentences at the Constitutional Court. In mid-November [2008], the Constitutional Court issued a stay of execution until it has finished deliberating on the case. If the Constitutional Court confirms the death sentences, the President of Sudan will need to approve the verdict before the executions can be carried out. The timing of the Court’s decisions is not predictable.”

These cases underlie a fundamental national issue that requires a strong stand by the International Community and the Sudanese civil rights groups to put pressure on the Legislature to abolish execution, and to alert the Judiciary to avoid death sentences as a necessary step to end the presidency’s maneuvering powers in the commutation or approval of the death penalty.

STRUCTURAL INJUSTICES:

Many observers noted the Sudanese judiciary might have seriously violated international norms of the due process of law in the trials of the Darfuris accused of murdering journalist Taha. Above all, the court refused to investigate the defense allegations of pre-trial tortures against the accused persons under police custody. The defense further denied the confessions of murder extracted from the Darfuris in detention.

Amnesty believes that the death sentences were imposed in judicial proceedings “that appear to be in violation of international fair trial standards: investigation need to be conducted into the allegations of torture and ill-treatment to ensure fair trials for defendants; and the nine men’s death sentences not to be executed and to be commuted, should the Constitutional Court confirm them.”

Of prominent significance, the government media, including threats by minister of the interior, stormed the cases of the Darfuris pre-and-post trials with prolonged threats of retaliation against murderers of journalist Taha. The discriminatory campaign against the Darfuris ethno-regional groups was further intensified following the attack of the Justice & Equality Movement on the military installations of the government in the city of Omdurman on the 10th of May 2008.

It is not a secret, notwithstanding, that the journalist’s family and the public at large did not fail to link the murder with the ruling party’s grave hostilities against journalist Taha, a well-known member of the NIF/NCP party, who had been publicly engaged for years in harsh criticisms of the non-ethical, non-religious, and illegal corruption of the ruling junta.

The democracy and human rights groups support the UN appeal to State Parties to abolish the death penalty for rehabilitative and humanitarian alternatives. The roles to be played by the legislature and the judiciary in this matter are extremely important.

The Sudanese Interim Constitution protects the Independence of Justices and Judges: Article 128 reads “(1) The Justices of the National Supreme Court and all Judges of other national courts shall be independent and shall perform their functions without political interference; (2) Justices and Judges shall uphold the Constitution and the rule of law, and shall administer justice diligently, impartially, and without fear or favour.”

It is certain, however, that the accused president Bashir will stay in the seat of presidency to destroy as much evidences as his hold of power might allow, against all constitutional law or religious ethics, to carry out additional indicted deeds through the state apparatuses, armed troops, security, treasury, and the other powers vested in the position he regrettably occupies.

Moreover, in the absence of a conscientious National Executive and a Legislature free of Presidency influences and political dictates, it is unfortunately certain that the Judiciary, with due respect to the Constitutional Court and the other courts, will continue to fall short of enjoying the independence granted by provisions of Article 128 for all Judges to function properly.

The fate of the innocent Darfuris is awaiting decision by the Constitutional Court; but the fate of the whole Nation is awaiting a Sudanese uprising to straighten out the political ills and the elusive nature of the NIF/NCP corrupted rule.