Sudan is mired in a structural governance crisis which threatens the stability, viability and unity of the state. Addressing this crisis will require both significant political change and a series of extensive reforms within the key functions of the state, including in political governance, the rule of law and the economy. Over the past few months, Sudan Democracy First Group has engaged a wide range of Sudanese academics and civil society actors in a debate on the reforms needed for a viable, peaceful and democratic Sudan. Today, we release the second in a series of discussion papers which analyze the status of each sector and identify key reforms.
This second paper tackles Sudan’s deep rule of law crisis. Since the colonial period, the rule of law in Sudan has been utilized to serve the political interest of a small elite, both through the domination of the law-making process and through its implementation. The system is also full of contradictions and inconsistencies, including between the Constitution, Shari’a law, international human rights and customary law. As a result, laws and their application are often extremely discriminatory and persecute the most vulnerable and marginalized in society. Lastly, throughout the system and across large swathes of the country, the rule of law is inadequately enforced. Previous efforts at reform, in particular under the Comprehensive Peace Agreement, have been manipulated, undermined and ineffective. A reform process must therefore answer both “what” is the law, and “whose” is the law.
In this paper, The Rule of Law and Human Rights in Sudan: challenges and prospects for reform, Dr Lutz Oette and Dr Mohammed Abdel-Salam Babiker contend that deep structural reforms are needed within the rule of law sector, as well as a fundamental reorientation of how reform is undertaken in order to make reform, and the law, more participatory and inclusive, reflecting local visions of justice whilst respecting human rights norms. The paper highlights a range of areas for reform, including:
- A new inclusive and participatory Constitution-making process, and creation of a Constitution which provides effective accountability mechanisms and checks and balances beyond the text itself;
- Legislative reform to address both discrepancies between laws, including with international human rights standards, and to address repressive and discriminatory laws, as well as impunity and lack of reparation for victims;
- Reforms to the law-making process to ensure the law is not used as a political instrument, a fundamental commitment needed under any political transition process, and strengthening and increasing the scrutiny of bodies tasked with undertaking reform processes;
- Legislative and administrative reforms, including judicial review of executive decisions and capacity building of institutions, in order to address barriers to access to justice, in particular for the most vulnerable and marginalised in society;
- Reforms to address justice and accountability for past and future human rights violations, which has to be an intrinsic part of a political transition process and must be based on wide public debate;
- Reforms to address deficiencies in the administration of justice, including limited capacity and capability as well as corruption, and which must ensure the independence of the judiciary; and
- Reforms within the legal profession, including creating an independent Bar Association and addressing poor standards and politicization of legal education.
The next paper in this series, which aims to provoke further debate on the need for institutional reforms in Sudan, will focus on economic policy reforms.