Seitenhistorie

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I. Rule of Law in Sudan's constitutional (Con)text

Wiki-MarkupThe term "rule of law" / "supremacy of the rule of law", i.e. "(_siyādat) hukum al-qānūn_", can be found in Article 4 para. a, Article 25 para. e, Article 128 para. 2 and Article 144 para. 3 of the Interim National Constitution of the Republic of Sudan as a principle guiding the "devolution and distribution of powers between all levels of government", the judiciary as well as the "Sudan National Armed Forces \ ["_al-musallaha al-qawmiyya as-Sūdāniyya_"\] and the Joint/Integrated Units \ ["_al-wahdāt al-mushtaraka/al-mudmaja_"\]." Being part of the normative chapter of the Interim National Constitution, the rule of law principle derives, in contrast to declarations in constitutional preambles, from the legally binding constitutional basis: The executive and judiciary are, not only, but most notable addressed to fulfil their rule-of-law obligations but also the aforementioned armed forces.

II. Constitutional Separation of Powers

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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 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). Wiki-MarkupArticle 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 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(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 to the armed forces by including the PDF-militia and Jannjāwīd in protection from prosecution without government consent (Elliesie 2009: 59).

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Fadlalla, Mohamed (2009): The Regulation and Meaning of Concurrent Powers in the Interim National Constitution 2005 of Suda, Recht in Afrika, Volume 12/1, Köln, pp. 131-...

Gouraud, Sebastien (2006): Rule of Law in Sudan's three Area, Forced Migration, Issue 26, Refugee Studies Center, Oxford, p. 58

Ibrahim, Noha (2008): The Right to a Fair Trail in the Light of the Interim National Constitution: Theory and Practice, Recht in Afrika, Volume 11/1, Köln, pp. 83-...

Juba Declaration on Dialogue and National Consensus, Chapter 4 (Democratic Transformation), para. ii et seq

Khalid, Mansour / Biong Deng, Luka (2007): The Sudan Comprehensive Agreement, Peter Gwynvay Hopkins (ed.): The Kenana Handbook of Sudan, London et al., pp. 811-...

Machakos Protocol, Part B (The Transition Process), 2

Morrision, Fred L. (2007): The World's Most Complex Constitution: The Interim Constitutional Framework of the Sudan, August Reinisch / Ursula Kriebaum (eds.): The Law of International Relations - Liber Amicorum Hans Peter Neuhold, Utrecht, pp. 229-...

Omer Medani, Fareed (2007): The Salient Features of the Sudan Interim National Constitutional Constitution, Peter Gwynvay Hopkins (ed.): The Kenana Handbook of Sudan, London et al., pp. 803-...

Redress Trust (2009): Promoting Law Reform in Sudan to enhance Human Rights Protection, Strengthen the Rule of Law and foster Democratic Process, Written Evidence submitted by the Redress Trust to the UK Associate Parliamentary Group on Sudan: Parliamentary Hearings: Sudan's Comprehensive Peace Agreement, London, pp. 3-...

United Nations (2009): Report of the Secretary-General on Elections in the Sudan, New York, UN-Doc. S/2009/391, para. 31-34