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Attack on the Judiciary by Mohamed Osman

3/22 4:09pm

March 1991
For Further Information Contact: Makau Mutuan
Lawyers Committee

Sudan: Attack on the Judiciary

This report documents efforts by the government of Sudan to undermine the independence of the judiciary. It focuses on Khartoum and some parts of northern Sudan. It does not address government actions against the legal community in the South or in other areas of Sudan engulfed in the civil way, from where it is difficult to gather information. The report concerns itself chiefly with the government attacks on the judiciary since June 30, 1989.
The judiciary in Sudan has a long and troubled history, dating back to colonial times. Even after independence from Britain in 1956, successive military and civilian governments have continually undermined the rule of law and curtailed the emergence of an independent judiciary. Beginning in 1969, former President Gafar Numeiri took a number of steps whose net effect was to weaken severely the independence of the courts. Among other things, he presided over the appointment and dismissal of judges, effectively denying them security of tenure. In 1983, he promulgated the September Laws, a version of Sharia (Islamic Law) that imposed the penalties of amputation, flogging and stoning. This was the first major attempt by the executive in Sudan to transform the secular judiciary into an Islamic bench.
The Transitional Military Council (TMC) that overthrew Numeri in 1985 handed power over to the elected government of Saddiq al Mahdi in 1986. While Prime Minister Mahdi did not abolsih the September Laws, the judiciary nonetheless began to assert its independence under his rule. But the move towards a greater independence ended following the military takeover on June 30, 1989. On that date, the armed forces established the National Salvation Revolutionary Command Council (RCC) which declared itself the supreme legislative and executive body in the land.
After seizing power, the RCC, headed by Lt. Gen. Oman Hassan al Bashir, immediately passed emergency laws authorizing it to suppress virtually all basic freedoms. It dissolved all political parties and banned all professional associations, newspapers, and trade unions. Among those proscribed were the Sudan Bar Association, the Sudanese Human Rights Organization and the Sudan Legal Aid Association. The emergency laws permitted the government to arrest anyone suspected of being a danger to political and economic security. Hundreds of individuals including lawyers, political and human rights activists, former government officials, academies and journalists have since been arrested and detained without charge.
The judiciary has been a significant casualty of the Bashir government. Decree 2 authorized the RCC to create special courts (military tribunals) to try individuals arrested under the state of emergency laws. The RCC determined the procedures applicable in these courts. The tribunals were governed by the September Laws. When judges protested the formation of these courts in August 1989, the RCC summarily dismissed 58 of them without explanation. Dismissals of judges opposed to Sharia or the special courts have continued to occur.
In September 1989, the special courts were abolished and replaced with new courts called Revolutionary Security Courts, essentially no different from the special courts. Due process protections are not accorded and defendants do not have a right to counsel. The RCC, in the exercise of its powers, can appoint anyone, even those without legal training to the bench. Many of those who have been appointed to date are members of the National Islamic Front.
Government attacks on the private bar have been equally harsh. Since August 1989, when a number of lawyers protested the government ban on professional associations, and the Sudan Bar Association in particular, the government arrested and detained without charges scores of lawyers. The detained lawyers have been denied access to doctors, legal counsel and family members. The continuing attacks on the legal community attest to the continued widespread disrespect for the rule of law and an independence judiciary by the military authorities in Khartoum.

The Judiciary: Before the 1989 Coup

(i) The Judiciary Under President Numeiri 1969- 1985

Since independence from Britain in 1956, successive military and governments have continually undermined the independence of the judiciary. In 1969, after coming to power in a military coup, Colonial Gafar al-Numeiri took a number of steps whose effect was to severely undermine the independence of the judiciary.
In 1973, the military government promulgated a new constitution under which a presidential single party state was established. Col. Numeiri was named the countrys first President under the new constitution. Two years later, the government drastically curtailed safeguards against arbitrary arrest and detention through the State Security Act, which allowed detention without charge or trial. In a 1975 case, the Sudanese judiciary upheld constitutional amendments authorizing such detention without trial.
To further strengthen executive authority over the judiciary, President Numeiri created the High Judiciary Council in 1983. He presided over the Council and appointed and dismissed all its members. In effect, the Council exercised complete control over the judiciary. Additionally, the President was authorized, upon the Councils recommendations, to appoint any person to any judicial position notwithstanding any conditions of appointment spelt out by the Act. Total executive control of the judicial process was assured by the Presidents authority to establish special criminal courts and special procedural rules applicable in those courts.
In 1977, responding to the pressure of the Muslim Brothers, President Numeiri established the Committee to Revise Sudanese Law to bring it into conformity with Islamic law or Sharia. Six years later, some of the Committees bills were enacted into law with the imposition of Sharia.
Sharia was imposed in the Sudan in 1983 when the Numeiri government enacted the September Laws (so-called because they were promulgated in September 1983). This represented the first major attempt by the executive to replace the secular judiciary with a judiciary that followed Islamic fundamentalist principles. These laws prescribed harsh sentences, known as huddud, including amputations, flogging, and stoning.
The September Laws and the attendant jurisprudence opened the door for the principles of free interpretation or ijtihad. The adoption of this principle, in the context of a weakened and increasingly non-secular judiciary, cleared the way for the executive to use the judiciary to silence the opposition. The principle allows a judge in a Sharia court wide latitude to determine applicable offenses and punishments. It allows the judge to search the Koran and hadith for a charge that deems more appropriate, although that charge may not exist in the codified law. An example of the application of this principle was the trial and execution of Mahmoud Mohammed Taha in 1985 for apostasy. The offense of apostasy did not exist in the Panel Code. The tribunal that tried Taha used ijtihad to convict him. Mahmoud Mohammed Taha and his small party of followers, the Republican Brothers, campaigned for Islamic tolerance and opposed the impositions of Sharia. They issued leaflets denouncing the government shift toward fundamentalism.
A number of judges showed reluctance and unwillingness to enforce this version of Islamic Law. Banned political parties, including the Sudan Peoples Liberation Army (SPLA), actively opposed the imposition of the new legal order. As this opposition mounted, President Numeiri declared a State of Emergency on April 29, 1984 and set up Emergency Courts to implement Sharia laws. Although the State of Emergency was lifted five months later, the Emergency Courts were simply renamed Prompt Justice Courts by the amendment and reenactment of the 1983 High Judiciary Act as the Judiciary Act of 1984.
6, 1985 the armed forces overthrew President Numeiri. A Transitional Military Council (TMC), headed by General Abdel Rahman Suwar al Dahab, ruled the country until it handed over power to an elected civilian government one year later. By the time of the April 1985 coup, the executive was exercising complete control over the judiciary.
The Transitional Military Council announced that it would restore respect for basic freedoms, including the right to an elected government and an independent judiciary. The TMC repealed the State Security Act, which allowed detention without trial, and freed all remaining political detainees.
The TMC was not in power long enough to affect the judiciary in any appreciable manner. However, during the period, Sudan became a party to several important international human rights instruments. In March 1986, it became party to the African Charter on Human and Peoples Rights and to the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights.
In April 1986, exactly a year after it came to power, the TMC organized elections which were contested by three major political parties. The Umma party, headed by Saddiq al Mahdi, won a third of the seats and formed a coalition government with the Democratic Unionist Party (DUP). A third party, the National Islamic Front (NIF), also won substantial representation in the Constituent Assembly.

The Judiciary under Saddiq al Mahadi 1986-1989

When Saddiq al Mahdi became Prime Minister in 1986, he promised to restore judicial independence, abolish Sharia and initiate negotiations with the SPLA to end the civil war in the South. But by the time his government was overthrown in 1989, al Mahadi had failed to make any progress on these issues, although the judiciary had begun to assert its independence.
Throughout the la Mahdi era, Khartoum and parts of northern Sudan enjoyed a lively press, a strong bar association, nascent human rights groups, trade unions, professional associations and a slowly emergent independent judiciary. These emergent groups however, silenced by yet another military takeover in 1989. This June 30, 1989 coup preempted a conference which had been scheduled for July 4, and which was to have attempted a negotiated settlement to the civil war.

Assault on the Judiciary: June 30, 1989-present

The Military Coup: Immediate Aftermath

Despite efforts to appease the military, on June 30, 1989, army officers who opposed the policies of the new coalition government overthrew it and established the National Salvation Revolutionary Command Council (RCC). The RCC, headed by Lieutenant General Omar Hassan al-Bashir, declared itself supreme legislative and executive body in the land.
The RCC immediately passed two key emergence laws. Decrees 1 and 2 were announced on June 30, 1989, and took effect immediately. Decree 1 repudiated the 1985 Transitional Constitution and dissolved the Constitution Assembly, the Supreme Council of State and the Cabinet. Decree 2 declared a nationwide state of emergency and gave the government sweeping powers. It dissolved and prohibited all political parties and their activities. It banned all professional associations, including the Sudan Bar Association, the Sudananese Human Rights Organization, the Sudan Legal Aid Association, all trade unions and newspapers.
Decree 2 permitted the authorities to arrest and detain anyone
suspect of being a danger to political or economic security. It authorizes the government to arrest anyone without a warrant and to hold them indefinitely and without charge in administrative detention. Detaineees held under the decree cannot change their detention before any court. The decree provides no process to evaluate the need for continuing detention.
Since the coup, hundreds of individuals including lawyers, political, and human rights activists, officials of the al Mahdi government, academics and journalists have been arrested and detained without charge.

Special Tribunals

One of the first significant actions taken by the RCC was to create special military courts. Decree 2 authorized the RCC to create these special courts to try individuals arrested under the state of emergency laws.
Mohamed el Hassan Mohamed Osman, a judge who was dismissed by the RCC in August 1989, explained the governments action in the following terms:
This new military government declared martial law and established military courts whereby no civilian court was empowered to review any of its decisions. The military government arrested countless people without any basis and soldiers searched houses without any warrant under the system of martial law. The new government was believed to be dominated by the National Islamic Front, a fundamentalist group. Not only did the RCC vigorously enforce Sharia laws, it also began to dismantle systematically Sudans independent judiciary, with the implicit aim of replacing it with a militant Islamic judiciary.
On July 4, 1989, the RCC announced the formation of military tribunals to try officials suspect of profiteering, corruption and sedition. It authorized its President, Lt. Gen. Omar Bashir, his deputies and military heads to appoint army officers or any other competent persons to sit as judges in the special courts. Defendants were not allowed legal representation in these tribunals. The tribunals applied the September laws passed by President Numeiri in 1983.
On September 27, 1989, the special courts were abolished and replaced with six new courts call Revolutionary Security Courts which were similar to t he special courts. Defendents do not have the right to counsel in these courts. The RCC abrogated to itself, in respect to these courts, an even wider latitude in appointing judges. Amnesty International noted that:
The law which created these courts did not specify (as it did in the case of the special courts), that three judges and two others were to be selected by the NSRCC on the basis of their competence and expertise.
Under the law setting up the courts, capital cases and those involving sentences in excess of thirty years are referred to the Revolutionary Security High Court for reconsideration. Only the head of state can approve a death sentence once the Revolutionary Security High Court confirms it.
On December 9, 1989, Col. Mohamed al Amin Khalifa, a member of the RCC, announced that in the new courts, the judges would be authorized to hand down punishments prescribed by the September Laws. While the courts had been reluctant to impose Sharia punishments since their introduction in 1983, the announcement by the RCC created new pressure on the judiciary to carry out the wishes of the executive. The new Chief Justice appointed by the RCC in 989, Jalal Ali Lufti, urges the imposition of these punishments.

Dismissals of Judges
The Sudanese judiciary strongly opposed the formation of the special courts and military tribunals, and the trial procedures governing them. Initially, public opposition was isolated and only voiced by a few individual judges. In response to these protests, the RCC dismissed several judges in August 1989. Following these initial dismissals, other members of the judiciary became more vocal in opposing measures, which, in their view, were weakening the courts. Several judges drew up a memorandum, which they submitted, to the RCC on August 25, 1989. It contained six key demands:
The immediate cancellation of the military decrees by which military courts were set up, the immediate dissolution of those courts and the annulment of all decisions and sentences of those courts.
The cancellation of the military decree by which an Office of Complaints was established and the annulment of all steps taken by the Office.
Assurance that the government recognize the independence of the judiciary, the rule of law and the separation of powers.
An immediate re-transfer to the pre-existing civilian courts of cases that had been transferred to the military courts.
Non-interference by any government body or authority in judicial affairs.
Maintenance of the legal system and the governing laws pending their evaluation in consultation with representatives of judges at all levels.
Judge Osman was part of a committee of judges that drafted the memorandum. He observed:
I felt, as a judge, that I must stand against the gross abuse of justice being perpetrated by the Bashir government. I visited political prisoners in Kobar PrisonI also met secretly with my colleagues at the home of a Judge [name withheld], where we worked to compose a letter condemning martial law, the military courts, and the denial of human rights. The letter signed by 50 judges detailed our opposition to the Bashir governments abuses of human rights.
The government responded to the memorandum by dismissing 58 judges on August 27, 989. Those dismissed included judges from the Supreme Court, the Appeal Court, Provincial Courts, and First, Second, and Third Class judges. The International Commission of Jurists (ICJ) reported that many judges also resigned, presumable in anticipation of their dismissal by the government. The RCC intended to fire additional judges and reportedly had a list of 120 judges whom it intended to purge from their courts, according to the ICJ.
According to information that has been gathered by the Lawyers Committee from a number of sources, following 51 judges were among the 58 dismissed by the RCC in August 1989:
Editors Note: In the original version of this text Professor Makau mentioned the names of the 51 judges that had been dismissed

The RCC did not offer justifications for the dismissals. The certificates of dismissal did not explain the reasons for termination. Judge Osman, who was among those dismissed I nthe first wave, received a certificate of dismissal which stated only that despite a good evaluation of his work on the bench, he had been pensioned off by Decision Number 33/79, dated August 20, 1989, of the Council of the Revolution of National Salvation. Judge Osman did not challenge his dismissal, but instead fled to the United States, after receiving threats from government agents.
Those who had been dismissed have been replaced with judges who reportedly belong to the National Islamic Front and favor the strict application of Sharia. A number of those appointed do not have legal training.
The dismissals of secular judges have continued in the last year. In September 1990, the RCC dismissed another 70 judges. The following, according to information received by the Lawyers Committee, were among the dismissed:
The letters of dismissal addressed to the judges were uniform. They did not offer any justification for the dismissals. A copy of the letter mailed to one of the dismissed judges, Ismail al Tag Moustafa, simply read, Decision NO. 343/1990 has been issued on September 6, 1990, from his Excellency the Head of the National Salvation Revolutionary Command Council, to transfer you to retirement. The letter concluded, With thanks and appreciation for your service to the judiciary. It was signed by Said Ahmed al Awad Madani on behalf of the Chief Justice.

Government Attacks on the Private Bar

Since June 30, 1989, the Sudanese bar has also come under severe attack from the Bashir government. On June 30, the military authorities passed Decree 2 dissolving all trade unions and professional associations. These included all non-religious associations, including the Sudanese Bar Association and the Sudan Human Rights Organization.
Several professional associations, including the Bar Association and the Association of Legal Advisors in the Attorney Generals Chambers, drafted and signed a memorandum of protest to the government. The memorandum called on the government to lift the ban on all these associations. With respect to trade unions and other professional organizations, it called on the government to respect international human rights treaties ratified by Sudan which guarantee freedom of association. The memorandum urged the government to consult with the unions and stated that the unions would reject any actions taken by the government without consultation. The petitions asserted that they would not dissolve themselves. Representatives of the unions presented this memorandum to the government on August 1, 1989.
The governments response was quick and uncompromising. The prominent signatories of the memorandum were detained and civil servants who were suspected of supporting the document were dismissed.

Editors Note: He mentioned 25 names of lawyers that had been detained without a trial or charges.

From the information the Lawyers Committee has received, at least 25 lawyers listed above continue to be held without charge since Bashir came to power. All of them have been detained for advocating the rule of law and calling on the government to respect the rights of its citizens. Most of the lawyers are detained at Kober, Shalla and Port Sudan prisons. Many are ill and have been denied access to doctors. None have been permitted access to legal counsel or to his family. These widespread attacks on the legal community by the Bashir government have had a chilling effect on the administration of justice in the Sudan.
Sudan has ratified the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides that certain rights may be derogated from during a public emergency, which threatens the life of the nation, but such derogation should only be to the extent and for the length of time strictly necessary for the emergency. Sudan has not informed the United Nations of any derogation from its obligations under the ICCPR, and therefore all its provisions are in force. The government attacks on the legal community which violate these obligations, as well as Articles 1 and 2 of the UN Basic Principles on the Independence of the Judiciary which guarantee the independence and impartiality of the judiciary.

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