In bad company: South Sudan’s proposed new security law
By Lutz Oette
October 6, 2014 – Reading South Sudan’s new Security Bill, scheduled to be debated in Juba’s parliament on Tuesday, prompted an uneasy déjà vu. For a moment, it felt as though I am reading Sudan’s 2010 National Security Act. This Act has been the subject of much criticism, giving Sudan’s National and Intelligence Services (NISS) carte blanche.
Concerns over systemic torture at the hand of Sudan’s NISS are not new, stretching back to 1989 when the current regime took power. Since then, reports of torture by the NISS have been commonplace. This included the torture of many individuals from southern parts of Sudan, including the present South Sudan. Unsurprisingly, changing Sudan’s national security law was at the heart of reforms envisaged in Sudan’s Comprehensive Peace Agreement, concluded in 2005 between the Government of Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A). According to this agreement and Sudan’s 2005 Interim National Constitution, the existing security state was to be radically changed, and the NISS transformed into an intelligence service.
The reform of Sudan’s security laws was seen as a litmus test for human rights protection in Sudan. However, the Government of Sudan delayed reforms as long as possible and presented a new security bill only in 2009, which effectively retained NISS powers and immunity from accountability. It triggered widespread opposition by civil society, political parties and international actors. High-ranking SPLM members Pagan Amum and Yasir Aman were even taken into custody following demonstrations held in Khartoum at the time. These protests were eventually to no avail, with the predictable consequence that allegations of arbitrary detention and torture by the NISS remain at the forefront of human rights concerns in Sudan today.
Given this legacy, one could have reasonably expected the new South Sudan to take a different line on the role of its security services. The 2011 Transitional Constitution seemed to signal as much, stating that “The National Security Service shall be professional and its mandate shall focus on information gathering, analysis and advice to the relevant authorities.” Further, it “shall respect the will of the people, the rule of law, civilian authority, democracy, human rights and fundamental freedoms.”
Despite this constitutional mandate, South Sudan’s security service has in several cases been accused of arbitrary detention and torture. Since independence, it has operated without any legal basis. A new security bill should therefore be welcome from a rule of law perspective. However, the new bill revives most of the problematic features of its Sudanese counterpart. It defines the notion of security extremely widely and gives the services far-reaching powers of search, seizure, arrest and detention.
Those arrested and detained enjoy limited rights and safeguards, such as the right to habeas corpus. Instead, members of the security services are given immunity that can only be lifted by the minister or head of security. Such provision has served as a recipe for blanket impunity in Sudan. National activists and international actors have therefore rightly reacted with alarm to these latest developments.
The proposed security bill not only raises serious concerns about its compatibility with South Sudan’s transitional constitution. It also runs counter to international human rights law standards, including the UN Convention against Torture that the South Sudanese parliament agreed to ratify as recently as December 2013. The security bill reinforces concerns over the direction in which South Sudan is heading, particularly when it comes to the post-conflict transition. It is disheartening to see that it replicates the dark side of Sudan’s legislation. This risks making it a missed opportunity to define South Sudan’s own identity by providing a clear break from the past.
When people celebrated South Sudan’s independence in July 2011, they surely did not contemplate let alone wish that the human rights problems experienced in Sudan’s law and practice would re-emerge in the South in barely disguised new, old clothes.
Dr. Lutz Oette is Counsel at REDRESS and Senior Lecturer in law at the School of Oriental and African Studies, University of London. He holds a doctorate for his thesis on the compatibility of UN economic sanctions with international human rights and international humanitarian law. The author can be reached at [email protected]