Sudan coup: implications for international law and the legal profession

Yassin Osman assesses the legal threats of Sudan’s counter-revolutionary coup in 2021 and how the legal profession can help

After Sudan’s military seized power on the morning of 25 October 2021 and instigated an ongoing human rights crackdown against protestors attempting to reclaim their revolution, the country’s optimistic and fragile transitional to democracy had severely delineated. The military-led government has capitalised on its unilateral exclusion of civilian representation in the new government to undermine the democratic transition, cultivating impunity for past and ongoing crimes by curtailing judicial independence and a free legal profession.

Human rights violations

Shortly after arresting and detaining several leading civilian political figures on the day of the coup, including the then-prime minister and several members of his cabinet, the Commander of the Sudanese Armed Forces and head of the Sovereign Council, General Abdel Fattah Al-Burhan, dissolved the government, imposed a state of emergency, formed a new ‘caretaker’ government tasked to ‘correct’ the democratic path of Sudan and authorized an ongoing violent crackdown on protestors, human rights activists, journalists, and opposition leaders.

Systematic patterns of human rights violations have since been widely reported, including arbitrary and deliberate killing of protestors, the use of rape as a tool of deterrence against female activists and demonstrators, arbitrary arrests, enforced disappearances and the torture of civil society actors, attacks on medical facilities and a clampdown on media freedom.

As the country that has experienced the most coups in Africa following independence from Britain, the military has shown repeated unwillingness to cede power to a civilian-led government. Nor has it sought to deter from a path of gross human rights violations and overwhelming state corruption, without effective international enforcement and accountability mechanisms in place. This especially includes the designated of targeted sanctions, to which the International Bar Association’s Human Rights Institute (IBAHRI) and other NGOs are currently pursuing at the UK Parliament.

Uncertainty at the UN

Beyond the human rights violations, there is the question of who represents a country after a coup, through international recognition, similar to the situation in Afghanistan. The UN was forced to reckon with this following the post-coup government’s submission to change the civilian Ambassador to the UN to one appointed by the military. Despite pushback from international civil society, the UN Office of Legal Affairs (OLA) ultimately accepted the change, citing the head of state did not alter in effect.

In doing so, the OLA failed to look beyond the surface level text of the law and the legal implications of the dissolution of the government, thereby tacitly acknowledging the military’s notion of a ‘correction’ rather than a coup. This stands in stark contrast to the position of the African Union (AU) which suspended Sudan (again) following the coup and refused to recognise the new government. It raises serious concerns as to whether the right to self-determination of the Sudanese people is effectively being curtailed by the international community, while dampening regional efforts in bolstering the democratic transition in the process.

Importantly, the change came a few days before Sudan’s scheduled Universal Period Review at the UN, representing another avenue where the military sought to confound and curtail the effectiveness of international accountability mechanisms in monitoring the state’s ongoing violations. On 26 January 2022, in bringing the attention of the member states of the UN Human Rights Council (HRC), the IBAHRI, the Darfur Bar Association, and the Sudanese Professionals Association, along with 51 other Civil Society Organisations, signed a joint statement highlighting: “given the current political situation in Sudan, it remains wholly inappropriate for a military-led body that does not enjoy the support of the Sudanese people to undertake the [UPR] process”.

Impact on justice system

Although the legislative branch of the government was reigned in through the recent coup, the functioning of the judiciary and the legal profession in Sudan has long been wrought by political interference and a severe lack in judicial independence, mainly impaired due to two considerations: the absence of a Constitutional Court and Supreme Judicial Council, and the curtailment of the justice system’s effectiveness due to the current composition of the Judiciary and the ongoing state of emergency.

Judicial independence

The Constitutional Document of 2019 envisaged the establishment of an independent judiciary to replace the politically influenced Judiciary of Omar Al-Bashir’s authoritarian regime, after his government was toppled that year, particularly through the creation of a Constitutional Court and the Supreme Judicial Council (SJC). Neither of these institutions have been established during the transitional period. Thus, without an SJC, the ruling military council is effectively the head of the judiciary due to its power to appoint the Chief Justice and the attorney general. Moreover, without an impartial and independent constitutional court in Sudan, there are currently no fundamental guarantees to the rule of law, judicial independence, nor enforcement of the constitutional document.

The legal profession

Additionally, the lack of judicial independence, routine judicial harassment and a culture of impunity has resulted in the incapacity of lawyers to challenge ongoing violations by the state, against civil society. Those that have made challenges in domestic courts have been targeted by the state, including through enforced disappearances of lawyers representing jailed civilian leaders.

In his first official in-country visit, recently designated UN Independent Expert on Sudan met with senior government officials, including the attorney-general and the acting Ministers of Foreign Affairs and of Justice, where he raised concern over “the extension of law enforcement powers to the general security forces during the State of Emergency and the temporary immunity from prosecution granted to these forces”.

However, members of the judiciary and legal profession in Sudan have not remained silent on the actions of the security forces. In a statement to the Chief Justice, 55 judges said military leaders "violated [international] agreements and covenants since the October 25 coup, as they have carried out the most heinous violations against defenseless protesters”, calling for an end to the violence and a criminal investigation into killings.

Separately, more than 100 prosecutors announced in January 2022 they would go on strike and called for security forces to cease violations and lift the state of emergency, citing their inability to carry out their legal duty to accompany police to protests and determine the acceptable use of force. A free and active legal profession may threaten the narrative of the military council which seeks to thwart investigations into current human rights violations and those committed during the 2019 revolution. The legal profession can also help bring accountability for past atrocities, including genocide in Darfur, where many current military leaders are implicated.

What now for Sudan?

The Sudanese revolution has tested the resilience of the human spirit, claiming its civic space for democracy and the rule of law to take root. However, this space has slowly been hijacked by seemingly opportunistic military figures set to return the civilian-military relationship to that before the ousting of Al-Bashir.

Activists’ relentless protesting has served as the main form of checks and balances on an administration that has so far acted with impunity and disdain for international standards. The immediate priorities to reset Sudan’s democratic transition include putting an end to the use of excessive force against protesters, lifting of the state of emergency, the release of all protestors and activists still held in detention and prompt and impartial investigations into allegations of human rights violations.

However, these prospects seem distant without international pressure, such as the designation of targeted sanctions and support to Sudanese legal associations. Thus, Western states could help hold accountable a military that has not only been unwilling to cede its power to a civilian-led administration, but has actively consolidated its grip.

Yassin Osman is a programme lawyer with the International Bar Association’s Human Rights Institute (IBAHRI) ibanet.org/IBAHRI