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Transitional Justice is Crucial to Reshape the Political Scene

Muawad Mustafa Rashid

Background:

Following the fall of the Al-Bashir dictatorship, the negotiated agreement guiding Sudan’s new transitional government promised to work for comprehensive peace and justice. The agreement promises to hold members of the Islamist regime accountable for all crimes committed against the Sudanese people. But this seems to be a difficult task, considering that important military members of the old regime are key players in the transitional government structures. Justice takes a long time to achieve and requires political courage, judicial independence, and that the responses are no longer key players.

Many have indeed suffered from human rights violations and violence committed by the Islamist regime. The constitutional declaration made wide commitments to legal reform, to rebuild and improve the legal and judicial system, and to ensure the independence of the judiciary and the sovereignty of law.

There are widespread vocal demands from the Sudanese people for justice and accountability.

Governments are not likely to engage in activities that provoke the military into reactions that can threaten their fragile power.

Instead, therefore, rather than prosecute the military, the post-authoritarian regimes usually establish truth commissions to investigate the human rights abuses. Where political tensions with the military were particularly high or where links between the outgoing military elites and the newly elected democratic elites were particularly strong at the time of transition, the democratic governments were even reluctant to set down truth commissions. It could take years, sometimes decades from the violations were committed until a truth commission was given the mandate to investigate the violations. Many of these truth commissions unearthed massive torture, disappearances, rape, forced exile, killings, even genocide. This detailed information of atrocities committed spurred more demands for justice from victims and their families. The almost uniform response from the governments was to pass amnesty laws precluding the prosecution of the military and other state officials responsible for human rights violations. Some governments passed amnesty laws even before truth commissions started their work, anticipating what was coming. Others hastily passed amnesty laws when they realized the potential dynamite in the truth commissions’ findings – including in some cases specific recommendations to prosecute the military. 

Things Take Time:

As long as the military is still strong and controls the arms, there will be no prosecutions.

As long as there are strong links between the incumbent regime and the outgoing regime responsible for the violations, there will be no prosecutions.

Although there is a transitional government in place in Sudan, the break with the widely hated Islamist regime of Bashir is far from clear.

If prosecutions are to take place, the courts must be sufficiently strong and independent to take on these cases, and they must have a sufficient legal basis on which to prosecute.

The Sudanese judiciary is in shambles and does not have the institutional capacity to prosecute. Reforming the civilian courts is a long-term goal. Prosecuting the military in military courts is not a viable option either. Furthermore, the Constitutional Document stipulates that the task of reforming military bodies is entrusted to military institutions in accordance with the law, and accordingly we cannot reasonably expect anybody with blood on their hands to cheer for legal reforms that may result in their prosecution.

Three conditions that need to be present:

  1. There must be claims for justice;
  2. There must be political will to prosecute; and
  3. The courts must enjoy a minimum degree of independence and have the competence to rule in cases of this kind.

The Sudanese should realize that they are in for the long haul if they want justice. It may come at some point. Nevertheless, it will most definitely take a long time to achieve.

Hamdok Remarks:

Prime Minister, Dr. Abdallah Hamdok has said in his recent address that justice is the only way to cross the waves of transition through which all the aspirations of the victims will be responded to in terms of justice, peace, and freedom nation.

He affirmed that transitional justice must commit to a package of procedures including the legal, social, physiological, and financial aspects besides fighting injustice as a practice of revenge.

This could only be achieved through just trials for all who were involved in human rights violations, embezzlement, or any other crime. The trials must be transparent and provide all the required conditions according to what is stipulated in the international conventions.

That being the case, it is high time for the transitional government to complete its judicial institutions especially the positions of the attorney general and the chief justice. The government has already started this step by appointing the chief justice who was sworn in last week.

The government should avail conducive political and social environment without any delay to make the mission a success.

We cannot talk about the success of the December revolution without achieving its most important demands i.e. justice and transition.

Dr, Hamdok pointed to an important point because it touched the roots of the crisis considering that transitional justice represents an obstacle in achieving justice through truth and reconciliation 

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