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Original contribution by Hatem Elliesie, lawyer, doctoral student and Academic Coordinator of the Horn of Africa Projects at _Freie Universitaet Berlin, Germany, Vice-Chairman of the Board of the Arabic and Islamic Law Association and member of the Executive Committee of the African Law Association.
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In the hierarchy of Sudanese laws, constitutional law prevails over any act of the legislature: This applies to bills of the national legislature (See Article 83 of the Interim National Constitution of the Republic of Suda) but is likewise valid for legal acts of the executive where it is vested with delegated powers to enact regulations (See Article 115 of the Interim National Constitution of the Republic of Sudan). In view of the trias politica, the Interim National Constitution formally governs the executive authority and the judiciary: It prevails over any act of the executive, and it also ranks above the Interim Constitution of Southern Sudan and the states constitutions (dasātīr al-wilāyāt). In order to harmonize laws with international standards as provided for in the Interim National Constitution, the lajna al-murāja'a al-qānūnīa __(Law Review Committee), established by the Sudanese Government within the National Ministry of Justice, brings domestic legislation in line with the provisions of the Interim National Constitution (Elliesie 2009: 64). These laws include, inter alia, the_ qānūn al-ijrā'āt al-jinā'īa (Criminal Procedure Act of 1991); the _qānūn al-quwwāt al-musallaha (People's Armed Forces Act of 1986); the qānūn quwwāt ash-shurta as-sūdānīa (Police Forces Act of 1999); and the qānūn al-qadā' (Judiciary Act of 1986) (Opening Remarks delivered by the Sudanese Minister of Justice at a Law Reform Workshop on September 2006 in Khartoum organized by the United Nations Mission in Sudan). In doing so, it remains to be seen whether the Ministry of Justice addresses the issue of the crucial and controversial status of the office of the Chief Public Prosecutor (an-nā'ib al-'āmm), which was set up according to Article 197 of the National Constitution of 1973. By virtue of his office, the an-nā'ib al-'āmm should be an independent organ of the judiciary. Due to the constitutional separation of powers, the office should neither be constrained by directives of the executive branch of the state, nor should it be mixed with their authority. In Sudan, however, this is not the case: The an-nā'ib al-'āmm is, by virtue of his office, Minister of Justice (ad-Dīn 2006: 37).
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The war situation in the Sudan has, however, promoted the exercise of unchecked power, of the executive authority by security services and in the political manipulation of the court system. Since 2005, all national laws and legal acts must, on the other hand, comply with the Interim National Constitution of the Sudan. To cope with this prospect, the process of law reform is quite challenging: Not only does Sudanese law lack a provision allowing for prosecution on the basis of command responsibility, Sudan has enacted many immunity provisions that impede the prosecution of those in the military, police, and security agencies who are responsible for crimes particular with regard to Darfur (Elliesie 2010, Elliesie 2007: 199 et seqq.). Immunity for members of national security forces was enshrined in the qānūn al-amn al-_wataniyy __(National Security Forces Act_ of 1999).
qānūn quwwāt ash-shurta as-sūdāniyya (Police Forces Act of 1999) stipulates that "no criminal procedure will be taken against any police officer for a crime committed while executing his official duty or as a consequence of those official duties without permission of the Minister of the Interior". Furthermore, Criminal Decree No. 3/95 sets forth requirements for bringing charges against members of the armed forces in criminal courts and specifies that criminal courts have no authority to pursue charges without approval by the armed forces or a decree from the Chief Justice. In addition, a temporary decree issued by the President on 4 August 2005, attempted to extend immunity of the armed forces by amending the _qānūn al-quwwāt al-musallaha Wiki-Markup {_}Article 33 of that act states, that "no civil or criminal proceedings shall be instituted against a member, or collaborator, for any act connected with the official work of the member, save upon approval of the Director \[...\]". Similar language can be found in other acts and decrees regulating government actors as well. Article 46 of the{_}
Jannjāwīd in protection from prosecution without government consent (Elliesie 2009: 59).Wiki-Markup (People's Armed Forces Act) stating that "there shall not be taken any procedure against any officer, ranker \[sic\!\] or soldier who committed an act that may constitute a crime done during or for the reason of the execution of his duties or any lawful order made to him in this capacity and he shall not be tried except by the permission of the General Commander or whoever authorized by him." This decree extended protection for the armed forces by including the PDF-militia and
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