Post CPA: Restructuring and Enhancing the Sudanese Judiciary as a Means of Preserving Peace

Sudan has the distinction in Africa in enduring the longest civil war on the continent. The country has been ravaged intermittently by a protracted civil war -the so-called north-south civil war, which has long been perceived as a clash between Muslim northerners and Christian southerners. Ethnicity, religion, identity, the legacy of the exploitative colonial rule 1 and underdevelopment were the issues around which that conflict revolved. One could trace the root-causes of the north-south conflict to the invasion of the south from the north as a result of the Egyptian exploration and expansion southwards, and the simultaneous development of slave trade. In addition, the British rule contributed in different ways to the crystallizing of the north-south dichotomy. During the colonial era, the British administered the Southern Sudan as a separate region from the north, 2 albeit as a part of the Sudanese territory 3 and concentrated development projects in the centre. 4 The segregation policy had resulted in acute economic disparity– thus, greatly fostering the north-south division and sowed the seeds of deep-seated resentment. This was compounded by the emulation of this policy by successive post-colonial governments, which provoked dissatisfaction amongst the southerners and triggered two civil wars that pit the northerners and southerners against each other for decades.


Introduction
Sudan has the distinction in Africa in enduring the longest civil war on the continent. The country has been ravaged intermittently by a protracted civil war -the so-called north-south civil war, which has long been perceived as a clash between Muslim northerners and Christian southerners. Ethnicity, religion, identity, the legacy of the exploitative colonial rule 1 and underdevelopment were the issues around which that conflict revolved. One could trace the root-causes of the north-south conflict to the invasion of the south from the north as a result of the Egyptian exploration and expansion southwards, and the simultaneous development of slave trade. In addition, the British rule contributed in different ways to the crystallizing of the north-south dichotomy. During the colonial era, the British administered the Southern Sudan as a separate region from the north, 2 albeit as a part of the Sudanese territory 3 and concentrated development projects in the centre. 4 The segregation policy had resulted in acute economic disparity-thus, greatly fostering the north-south division and sowed the seeds of deep-seated resentment. This was compounded by the emulation of this policy by successive post-colonial governments, which provoked dissatisfaction amongst the southerners and triggered two civil wars that pit the northerners and southerners against each other for decades.
The north-south conflict started just a year before the independence in 1956 and ended in 1972. The conflict broke out once again in 1983 when then President Nimeri abrogated the Addis Ababa Agreement which ended the conflict in 1972. After a series of peace talks, in 9 January 2005, the parties to the conflict -the Government of Sudan (GoS) and the Sudan People's Liberation Movement/Sudan People's Liberation Army (SPLM/SPLA) -signed a Comprehensive Peace Agreement (CPA) that put an end to the conflict. While it is true that 1 under the CPA and the competence of the judiciary to settle past grievances as a means of preserving peace. Part 4 concerns with the relevancy of the international community's rule of law related activities in Sudan to the enhancement of the Judiciary. Finally, Part 5 provides a conclusion by reflecting on the preceding parts.
Part I Historical Background to Sudan's North-South

North-South First Civil War 1955-1972
The first phase of the north-south conflict started in 1955, even before the independence of Sudan in 1956, as a local rebellion (Torit mutiny) and developed into a full scale of civil war that continued till 1972. Shortly before the independence, a Sudanization process of civil service was carried out to replace the British officials by Sudanese ones. That process resulted in appointing northerners in senior positions and left six positions to the southerners. 12 The result of Sudanization was compound with a number of additional factors that contributed their share in igniting the conflict. In 1960s, then President Abboud attempted to unite the north with the south. For this, he pursed a policy of assimilation by restricting the activities of Christian missionaries and introducing Arabic in the South. 13 As a consequence, a guerrilla army (Anyanya) which later evolved to form the Southern Sudan Liberation Movement (SSLM) demanded the independence of the south from Sudan. 14 In 1972, the conflict came to a halt when President Nimairi and the leader of SSLM signed the Addis Ababa Agreement, which provided the South with regional autonomy by creating the Southern Regional Government with its legislative (Regional Assembly) and executive (High Executive Council) organs. 15 The Regional Assembly was empowered to elect and remove the President of the High Executive Council, albeit subject to the confirmation of the national president. 16 The South had power to legislate on issues related to the preservation of public order, internal security, efficient administration, and the development of the timetable for determining the future of the south, 24 and establishes a Sharai'a/ secular system to exist side y side. 25

The Impact of the CPA on the Sudanese Legal System
The conclusion of the CPA resulted in the adoption, in July 2005, of a new constitution (the Interim National Constitution (INC)), as supreme law. 26 A National Constitutional Review Commission (NCRC), which was set-up by the CPA 27 , drafted the INC, as a legal framework for the transitional period. 28 As to the constitutional-making process, strong criticisms have been levelled against its exclusivity; especially the Sudanese populace was not consulted in the constitutional-writing process. 29 The exclusivity of the draftingprocess might be explained on the grounds that the composition and the mandate of the NCRC itself 30 was inextricably connected to, and derived from the CPA; and the CPA in itself, was strictly bilateral (the ruling Party and SPLM/A), leaving other segments of the Sudanese society unrepresented.

a) The Interim National Constitution
The INC reflects certain principles as stipulated in the CPA, in particular, the structure of governance, 31 the judiciary 32 and a certain catalogue of human rights. 33 In effect, the CPA 24 Chapter I "Machakos Protocol" (Art. 1.3) 25 Chapter I "Machakos Protocol" 26 Chapter I "Machakos Protocol" (Art. 3.1.1); Chapter II Part II "Power-Sharing Protocol" (Art. tutions could come into force unless and until the National Ministry of Justice "certified" that there were no conflict between them and the INC. The enactment of the ICSS is a fundamental change in contrast with the Addis Ababa Agreement that resulted in the 1972 Southern Sudan Self-Government Act which was incorporated in the 1973 Permanent Constitution. The south now has a detailed written constitution that gives greater recognition to the peculiarity of the Southern Sudan's circumstances (culturally, linguistically, and religiously).

The Present Structure of Court Systems in the North and South Sudan
The INC under Arts 119-123 and 172-174 deals with the National Judiciary, the Southern Sudan Judiciary and the State Judiciary and outlines in general terms the structure of the court system. As will be shown later, the structure of the judiciary system, under the INC, can be described as a unique and yet challenging one it creates complexities and linkages between the northern and the southern judiciaries. Thus, the aim here is to outline the main features of the court system in the north and the south and to identify the similarities and dissimilarities thereof. Thereafter, the changes that have been introduced to the judiciary under the new legal framework will be examined in an attempt to assess to what extent the restructuring of the judiciary can play a role in preserving peace between north and south Sudan.
Firstly, the structure of the court system in the north, the INC defines in broad terms the National Judiciary as consisting of the National Supreme Court, Appeal Courts and any other courts, 45  the court system in the north remains virtually unchanged, as the state courts are organized and financed by the national level, since until now none of the northern states has used its right to establish its own courts. It is clear that there is no substantial departure from the pre-INC on the structure of the courts in the north, especially at the state level.
As to the court system in the south, Art. 172 (1) of the INC establishes the Southern Judiciary as an independent institution from the National Judiciary with power to structure its own court system independently. 55

Similarities & Dissimilarities: Court System in the North and the South
There is clearly similarity between the court system both in the north and the south, for instance, the application of the national laws by the courts at all levels of government in Sudan. Again, appeals, especially on matters arising under national laws go to the National Supreme Court. In essence, that there is a parallel structure of the judiciary in the north and the south with the Constitutional Court having jurisdiction on constitutional mattes for both regions.
Yet, the north and south judiciaries differ in a number of specific aspects, for example, the source of the legislation. 65 The INC allows for Sharia law as one of the sources of legislation in the north and secular-based system in the south. On the appeal system, especially on constitutional matters, the National Supreme Court is not empowered to consider constitutional cases, whereas the Southern Supreme Court functions as a Constitutional Court with respect to cases originate under the ICSS and the Southern Sudan state constitutions. Again, appeals against the decisions of the Southern Sudan Supreme Court on matters related to the ICSS and the state constitutions of southern Sudan can be brought before the Constitutional Court. One can presume that the INC creates such linkages so as to ensure the supremacy of the INC.

Part III The Principles Governing the work of the Judiciary
The ability of the judiciary in settling disputes is by no means automatic. Rather, this role is contingent on the constitution, which sets certain standards that regulate the work of the judiciary. Thus, the aim here is to explore the constitutional provisions that govern the work of the judiciary, in particular the independence of the judiciary, the fair trial standards 64  and the judicial review of all legislative and executive actions of the state, and, additionally, to examine the changes that have been introduced to the judiciary under the new legal framework.

Fair Trial Principles
The right to a fair trial is designed to protect the rights and freedoms of the individual in the determination of his/her obligations and rights, in suits at law, or in criminal matters. 66 This right, in criminal matters, embodies certain procedural guarantees, such as the right to remain silent, presumption of innocence, right to counsel, etc, and which are applicable throughout the court proceedings (pre-trial, trial and post-trial stages Whilst there is no bright line to discern the relationship between the Bill of Rights norms and human rights norms, nevertheless, the Bill of Rights will have impact on the role of the judiciary. The application of the Bill of Rights (together with the human rights treaties) by the judiciary will certainly involve changes in the way in which the judicial carries out its tasks of adjudicating on cases related to human rights issues. This may entail expansion of the trial procedures to encompass issues raised by the human rights treaties. 75 The judiciary may turn to the jurisprudence of the United Nations Human Rights Committee for a source of information and guidance on this subject; and encourage the judiciary to review comparable foreign law precedents. antees related to fair trial. 76 Yet, the inclusion of an explicit Bill of Rights that incorporates a number of human rights treaties as directly applicable before the courts is a remarkable shift.
The Bill of Rights is only two years old; therefore, it is too early to give an assessment of its impact on the protection of fundamental freedoms and rights. However, there is doubt that its enactment has led to legal reform. For instance, the Bill of rights has not promoted revision of laws in some areas which were long overdue for reform such as Criminal Code and Procedure Act of 1991. On the other hand, the Bill of Rights has promoted revision of some laws such as the Political Parties Act of 2006. 77 Nonetheless, there are still important areas in which extensive reform of legislation is required to bring the existing laws in line with the Bill of Rights. In this regard, the National Ministry of Justice has announced that it will amend some 61 laws 78 and has established a law committee has been established with a mandate to bring the existing legslation in compliance with the INC. 79 Yet, formal legal mechanisms cannot alone uphold the rule of law 80 , hence, it remains to be seen in the future whether the Bill of rights provisions will be reflected in the future judgments of the judiciary.

a) Institutional Independence
The independence of the judiciary implies the freedom of the judicial process from interference from other government organs 81 -that is, the exclusion of other state organs from interference in the performance of the judiciary. 82 It also implies the ability of the judges to decide matters before them "on the basis of facts and in accordance with the law, without 76  restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect". 83 As such, the proceeding sections will consider how the INC regulates this issue, with special focus on appointment and removal of the judges.
As to the National Judiciary, the INC stresses the independence of the judiciary from other state organs, 84  including the approval of the budget of the National Judiciary. 89 It is also empowered to make recommendations, to the President, with respect to the appointment, promotion and dismissal of judges. The NJSC is a relatively new body; yet, its mandate and composition do not differ substantially from its predecessor 90 , except in the inclusion of three representatives from the Southern Sudan legal entities. 91 Another difference also is that the NJSC is Art. 131(1) of the INC provides that "discipline of justices … shall be exercised by the Chief Justice in accordance with the law". Since the removal of the judges from office is inextricably linked to the discipline of judges, one can say that the language of Art. 131 of the INC suggests that the removal of judges is contingent on the discretion of the Chief Justice, as the Chief Justice is empowered to discipline the judges and additionally to make recommendations to the President for the removal of judges.
Yet, the matter of removal of and discipline of judges of the National Judiciary are dealt with more fully in Arts 55 et seq. of the Judiciary Act of 1986. The discipline of judges is handled by a disciplinary board that conducts a procedure that is grounded upon due process guarantees. The decisions of that board can be appealed, thereby ensuring the impartiality of the disciplinary process of the judges, and the decisions of the disciplinary board must be confirmed by the NJSC; 99 therefore, the NJSC plays an important role in establishing the grounds for removing a judge from office. Offences that can lead to disciplinary action are set forth in the Judiciary Act ant, challenging the constitutionality of an administrative decision, has to exhaust all other of remedies before approaching the Constitutional Court. 102 Towards the legislature, the National Judiciary has no jurisdiction to strike down unconstitutional laws -that is, the INC does not contain any provision that deals with contentions before the ordinary courts that a law or any of its parts is unconstitutional. It is worthy to note that the National Supreme Court has jurisdiction to decide on constitutional matters that are related only to subsidiary legislation and regulations. 103 Moreover, the INC does not authorize the ordinary courts, if a constitutional matter arises during the course of litigation, to submit any constitutional question to the Constitutional Court for a decision on the constitutionality of any law in question. 104 This means that the lower courts have to assume that the laws they are administering are constitutional whatever the true position might be. The litigants only remedy in this regard is to approach the Constitutional Court, for judicial review of the legislation in question, 105 which has the power to set aside unconstitutional laws. 106 Prohibiting the lower courts from referring constitutional questions to the Constitutional Court is clearly problematic. This will prevent constitutionalism from filtering down to lower courts, which is essential. Also, there is the danger that people are forced to go through years of expensive litigation, and only thereafter can they show that the point could be disposed of on a simple constitutional issue. A more worrying aspect of such procedure is its implication on the right to a fair trial. One would wonder how the lower courts are supposed to apply the criminal law, if they cannot test its constitutionality. If a charge is invalid, why an accused must be forced to go through the entire trial, face conviction etc, before, the validity of the charge is proved.

Part IV Assessment of the Existing Judicial System as a means of Preserving Peace between the North and the South of Sudan
The question to be answered here is: has the judiciary changed? If so, can the judiciary have an impact on the preservation of peace between north and south Sudan? On the other hand, one can postulate that the establishing of the Southern Sudan Judiciary with its own court system to administer justice that based on a secular system at the level of Southern Sudan makes sense within the overall goal of achieving peace in Sudan -that is, rectifying the root-causes of the north-south conflict.

Source of Legislation
Allowing a dual legal system (Sharia and secular system) to exist side by side is a positive in redressing the causes of the conflict. What is more, the INC elevates a corpus of international human rights norms to the status of constitutional law. On assessing the source of legislation under the CPA, one can argue that sources of legislation in Sudan have always been diverse -during the colonial and post-colonial period until the imposition of September laws in 1983, the legal system in Sudan was a complex mixture of dualism. It had two hierarchies -Islamic and civil law. However, now (in comparison with the 1998 Constitution of Sudan) there is an express constitutional guarantee that the sources of the legislation are diverse.
This will permit the courts, especially at the state level, a room to apply different rules of procedure (be they Sharia-based or secular-based rules of procedure) in respect of litigation or prosecution before them, thereby reflecting an attempt to ensure that the varied racial, ethnic, religious and cultural make up of the population in Sudan can be fairly treated by the courts. The challenge for the post-conflict legal system will settle on how to reconcile these conflicting perspectives -the Islamist orientation of the center, the secularist orientation of the south, and the liberal orientation of the marginalized non-Arab areas of the north. Whether Sudan will succeed in creating a constitutive and legal framework that will accommodate all the diverse trends and transcend the divisions based on race, ethnicity, religion, culture and gender is the question for which the transitional period is to provide an answer.

Principles Governing the Work of the Judiciary
As regards the principles governing the work of the judiciary, on one hand changes on issues pertaining to the independence of the judiciary (appointment and dismissal of judges) under the new legal framework are minimal. On the other hand, the introduction of a Bill of Rights that incorporates a number of international human rights is a remarkable development that might create conducive environment to reduce the chances of a return to conflict through the protection of the rights of minorities etc. The Bill of Rights might also provide momentum for a profound change in the Sudanese laws where general or particular Bill of Rights provisions have not been recognized. Yet, whether the Bill of Rights will be observed on the ground and lead to upholding of the rule of law in Sudan is not known.
In summing up the assessment, it can be said that a truly devolution of the judicial powers is manifested in the enactment of the Interim Southern Constitution, the establishment of an independent Southern Sudan Judiciary and the State Judiciary. This development defines a break from past political and legal arrangements and one of the essential steps in stabilizing the peace between the north and the south in that the existing structure of the judiciary addresses some of the root-causes of the conflict by way of accommodating the diversity of Sudan by giving the Southern Sudan complete freedom to organize its own judicial system and to legislate on matters pertaining to the South. While all that said, the impact of the judiciary as to the stabilization of peace during the process of transition will rely on the 'behavior of state actors and the degree to which they are willing to respect the rules regarding the makeup of the judiciary and political system during the interim period'. 107 conflict (which was ended by the signature of Eastern Peace Agreement in October 2006). Hence, it is questionable, at this juncture, whether to describe Sudan as a post conflict situation, as technically, Sudan is still in a state of armed conflict, since the conflict still rages in some parts of Darfur.
As to the transitional justice provisions, the CPA highlights the structural and systematic causes of the north-south conflict and attempts to provide for socio-economic justice through the distribution of power and wealth between the north and the south. The CPA provides for a number of transitional justice measures, including, inter alia, measures to redress the "historical injustices and inequalities"; 108 establishment of democratic governance; 109 protection of the fundamental rights and freedoms; 110 promotion of national reconciliation, etc. 111 These measures provide clearly for institutional reform, especially restoration of the rule of law and reconciliation. 112 Yet, the CPA is silent as to how to redress the atrocities that occurred during the conflict. Here, one might narrate the reaction of the Sudanese populace, as to whether Sudan is ready to embark on envisaging a transitional justice strategy. In this respect, some civil society organisations have voiced criticisms with respect to CPA's silence on "how to deal with past human rights abuses". 113 The gaps in the CPA concerning the transitional justice mechanisms represent one of its major shortcomings. They now pose the following question: How will this shortcoming can be rectified? 114 The appropriateness of transitional justice mechanisms at this point is being debated in Sudan, as some say that there has been no drastic change in the structure of governance in Sudan and "the absence of real, solid peace and the lack of a unified leadership seeking political reconciliation." 115

Competences of the Judiciary under the CPA
Much has been written about the obligation of the state to prosecute the crimes of the old regime for the purposes of facilitating the process of restoring the citizens' confidence in the new regime; 118 establishing the rule of law and discouraging future violations. 119 Also, serious violations of international law, such as war crimes and crimes against humanity should not be left unpunished 120 and by opting not to prosecute such crimes, the new regime will violate international law. 121 Considering the scenario in Sudan, the CPA and the INC are silent with respect to the question of accountability. On one hand, it appears that the parties to the CPA felt compelled to compromise over the issue of accountability in order to avoid provoking resistance and rather achieve peace. On the other hand, the involvement of the Sudanese judiciary in carrying out prosecutions (that occurred over the last 4 decades) may be unrealistic. It has been argued that justice must be deferred so to maintain stability, in particular when attempts to prosecute those alleged to have committed crimes might end up in stabilising the peace. 122 Taken this into account the situation in Sudan, one is tempted to say that due

Amnesties de jure or de facto
As already indicated, the CPA does not provide for accountability mechanisms. Then the question here is does the silence of the CPA on the issue of accountability mean that the CPA provides for amnesty? It is worthy noting that during the north-south peace talks, the parties were keen to include an amnesty for war crimes and gross human rights violations in the CPA. 123 However, the final text of the CPA does not neither provide for accountability mechanisms nor pledge for amnesty. Yet, a careful examination of the CPA reveals that a de facto amnesty is clearly provided for under a number of provisions. For instance, the provisions of the Power Sharing Protocol provide for procedural impediments that will preclude prosecutions, as the parties to the conflict have now gained seats in the newly formed GoNU and the Government of the Southern Sudan. Other Sudanese laws also place constraints, by providing for amnesty, with respect to the prosecution of certain categories of government officials, such as, the 1991 National Security Forces Act, the 1991 Criminal Act and the People's Armed Forces Act. Therefore, one might conclude, then, that the CPA provides for a de facto amnesty for considerations of national reconciliation, reintegration of the parties into society, etc.

Part VI Enhancement of the Judiciary: The United Nations Development Programme
In a war-torn society, transformation towards sustainable peace will depend on the strengthening of the institutions that are in charge of maintaining law and order, especially with the help of international community. The UN has been increasingly involved in providing support to post-conflict societies to enhance their legal systems. 128 In Sudan, the UN has played an important role in facilitating the north-south peace negotiations. Soon after the conclusion of the CPA, the UN Security Council established a United Nations Mission in Sudan (UNMIS) to support implementation of the CPA and to play a coordinating and monitoring role and to promote and protect human rights. Presently, Sudan (north and south) is witnessing an increased engagement, by the UNDP and other international organisations, in activities that geared towards the enhancement of the rule of law sector. UNPD has developed a major rule of law strategy for promoting the legal institutions through supporting capacity building and rule of law awareness raising programmes across Sudan. 129 As regards the judiciary, UNDP has formulated a major Capacity Building Project for the Sudan Judiciary that places emphasis on raising awareness on issues related core principles of rule of law. 130

Conclusion
Some may argue that it is too early to judge whether the restructuring and enhancing of the judiciary, under the CPA, will play a crucial role in preserving peace between the north and the south of Sudan. I think this is not right. For example, the structure of the judiciary, under the CPA, provides for a legal system that addresses some of the root-causes of the north-south conflict, therefore, there is a potential that the judiciary can play a crucial role in averting a relapse into conflict. The success of the newly restructured judicial system will ultimately depend only upon the willingness of the government to respect the Constitution -this will help in re-building the confidence of the populace in the judiciary to resolve their dispute instead of taken the law into their hands. It also depends on an accessible and affordable judicial system and, above all, on the support of the people. Most recent developments suggest that there is recognition, by the GoNU, of the need to enhance the Rule of Law Sector in Sudan and this is illustrated by its engagement of the with the international actors.