Sudan, a State of Emergency
By Lutz Oette
The state of emergency declared by Sudan’s president al-Bashir on Friday, 22 February, constitutes a dramatic escalation of developments since the protests and uprising against the regime began in mid-December last year. Resorting to a state of emergency in times of challenges to its rule is neither new nor surprising, being part and parcel of the arsenal of an authoritarian state. In this instance, it is an important move with obvious political and legal ramifications. Politically, it visibly puts the military and security complex in charge. It recreates the early days of the regime when it took power by a military coup in 1989 and essentially ruled the country by revolutionary decree. The state of emergency and emergency orders made in its wake set out in detail the kind of challenges the regime disapproves of, and gives it sweeping powers to suppress them. It thereby opens the door to a wave of human rights violations, adding to the mounting record of arbitrary arrests, torture, excessive use of force and extrajudicial killings over the last two months. The emergency measures highlight that President al-Bashir has not heeded any internal or external calls for change. On the contrary, the state of emergency is true to form, in line with close to thirty years of illegitimate, repressive rule.
Two of the emergency orders adopted on 25 February concern the exercise of civil and political rights, two the economy, and one corrupt practices. The thrust of Emergency Orders 1 and 2 is a combination of far-reaching prohibitions and wide powers. Their barely disguised aim is to suffocate protests, stifle freedom of expression and the media, and counter monitoring and accountability of violations by the state’s forces. Emergency Order 2 prohibits, and criminalises, with up to ten years’ imprisonment, a long list of activities. This includes unlicensed gatherings, strikes, breach of public safety and security, and the “preparation, publishing or circulating news that harms the state or citizens.” It also “prohibits the preparation or publishing of information, photographs, documents or personal documents of any person who occupies a public office or his family.” This provision, seemingly aimed at preserving the integrity of the public office and privacy of office holders, is actually a response to the effective strategy of activists. They have identified security agents involved in violations online, thereby naming and shaming them publicly. Emergency Order 1 complements these prohibitions by vesting Sudan’s regular forces with wide powers of enforcement. This includes power of search and entry of buildings, imposition of controls on any property, seizure of assets, restriction of movement, and “arrest of persons suspected of involvement in any emergency-related crime.” In an extraordinary additional clause, the forces are provided with “any other powers deemed necessary by the President of the Republic”, which essentially gives the President, and the forces carte blanche. The Sudanese Attorney General is also reported to have established emergency prosecution offices, with cases to be heard before specifically established emergency courts. Evoking notorious precedents in Sudan and elsewhere, these courts are set to serve as a tool for the regime’s bidding.
The declaration of the State of Emergency and the emergency orders do not stand up to legal scrutiny. Article 210(1) of Sudan’s Interim National Constitution requires, for there to be an emergency, the “occurrence of an imminent danger, whether it is war, invasion, blockade, natural disaster or epidemics as may threaten the country.” It is difficult to see how the exercise of democratic and constitutionally guaranteed rights, here determinedly peaceful protests and use of freedom of expression, threaten the country. A threat to regime survival is not synonymous to a threat to the country. The official rationale of having to address national politics in order to reach a political consensus is extremely vague, besides being politically unconvincing as a means to prepare for a “free and fair” election in 2020. The government need not fear any legal challenges of the state of emergency and emergency orders before the largely compliant Constitutional Court. The matter is different when it comes to Sudan’s international obligations. The African Charter on Human and Peoples’ Rights does not entitle states to derogate from rights under states of emergencies. Under the International Covenant on Civil and Political Rights, state may only declare an emergency in a situation that threatens the life of the nation. The UN Human Rights Committee in a General Comment mentioned “a mass demonstration including instances of violence” as possibly constituting such a situation. This clearly implies that the violence emanates from the demonstrators, not solely the state, as is the case in Sudan. Any emergency measures taken must be “strictly required by the exigencies of the situation.” According to the Human Rights Committee, there is usually no need for states to derogate from freedom of movement and freedom of assembly as Sudan has done in Emergency Orders 1 and 2. There are no safeguards against abuse of power, particularly torture. It is not clear whether any of the measures can be challenged before the courts, there is no right to habeas corpus, and officials enjoy immunity. Emergency courts do not guarantee essential fair trial rights. In short, it is rule by law without any rule of law. This emergency rule creates a legally sanctioned dreamland for security forces who can act exercising extremely broad powers with impunity and a corresponding nightmare for Sudan’s citizens.
Sudan’s emergency measures are a licence for human rights violations. They are deeply undemocratic, aimed at stifling legitimate political protest and expression. The regime’s declaration of the state of emergency equates to a public acknowledgment of political bankruptcy. If any further reminder were needed, the developments demonstrate that the situation in Sudan constitutes a political and human rights emergency. It is high time that regional and international actors take a firmer line. If anyone threatens the life of the nation in Sudan, it is a government whose leader is wanted by the International Criminal Court for war crimes, crimes against humanity and genocide, not the people who are fed up with decades of oppression, corruption, deteriorating livelihoods and bleak prospects for their future.
Dr. Lutz Oette is Senior Lecturer in Law at SOAS, University of London. He is the editor of two books on Sudan, Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (2011) and Constitution-Making and Human Rights in the Sudans (2019, with Mohamed Abdelsalam Babiker as co-editor). The author can be reached at [email protected].