Arbitrary arrest and detention committed by national security, military and police
EXECUTIVE SUMMARY
The Tenth Periodic report of the United Nations High Commissioner for Human Rights on the human rights situation in the Sudan focuses on arbitrary arrest and detention; in particular, situations in which members of the security and intelligence services, the military or the police arbitrarily arrest or detain individuals.
Three categories can be distinguished, in which arrest or detention is considered as arbitrary and therefore prohibited by international law:
(1) An arrest or detention which has no valid legal basis. An example would be an arrest based on an invented criminal charge that does not exist in the Penal Code.
(2) An arrest or detention which is intended to deny the exercise of fundamental rights guaranteed by international or constitutional law such as the right to freely express an opinion.
(3) An arrest or detention where essential procedural guarantees are not observed so as to give the deprivation of liberty an arbitrary character.
The information contained in this report is based on the work of United Nations human rights officers deployed in Southern Sudan, Abyei, Blue Nile State, Southern Kordofan, and Khartoum in accordance with Security Council Resolution 1590 and with the consent of the Government authorities. The report does not provide a comprehensive assessment of arbitrary arrest and detention in all parts of Sudan. In particular, this report does not address the situation in Darfur, which has been the focus of previous reports of the High Commissioner for Human Rights.
In all of the above-mentioned areas, arbitrary arrest and detention is widespread and often linked to other serious human rights violations. In Khartoum and other parts of Northern Sudan, the National Intelligence and Security Services (NISS) systematically use arbitrary arrest and detention against political dissidents. According to allegations received by United Nations human rights officers, NISS detention can typically be accompanied by additional serious human rights violations such as incommunicado detention, ill-treatment, torture or detention in unofficial places of detention. The human rights concerns related to the NISS are longstanding and institutionalized problems that could be addressed through institutional reform. The 2005 Comprehensive Peace Agreement (CPA) between the Government and the Sudan People's Liberation Movement/Army (SPLM/A) explicitly states in this regard that the National Security Service's mandate "shall be advisory and focused on information gathering and analysis."
The Sudan has suffered from decades of armed conflict, creating particular challenges for the government authorities, in particular in Southern Sudan and other areas affected by the armed conflict. Arbitrary detention of civilians by the military (Sudan Armed Forces [SAF] and SPLA), in violation of international and Sudanese law is a serious concern linked to practices that emerged during the armed conflict period. The political leadership has to firmly instruct commanders and units not to detain civilians and to see that those who violate these instructions are sanctioned. In many cases, the police forces in the Three Areas subject to special CPA arrangements (Abyei, Blue Nile State, Southern Kordofan) and Southern Sudan make excessive use of their powers of arrest and detention, frequently failing to promptly submit detention cases to the justice system for review. In addition, the Sudanese police services sometimes try to exert pressure on criminal suspects by arresting their relatives or affiliates. In the absence of an effective civil justice system in Southern Sudan, the police sometimes handle compensation claims and abuse their arrest powers to force payments on behalf of the injured party.
Structural problems contribute to the gravity of the situation. Effective oversight of the detention process does not exist in large parts of Southern Sudan due to a lack of judges, prosecutors and legal assistance. Appointed judges and prosecutors are often absent from their duty stations or fail to fulfil their oversight functions with the necessary rigor and proactive approach. In Northern Sudan, the prosecutorial oversight mechanisms envisaged by law are often not implemented, in particular with regard to arrests carried out by the NISS and the military. Impunity is a concern as even blatantly unlawful arrests rarely result in criminal or disciplinary sanctions against the officials involved.
Executive interference further undermines the administration of justice. Human rights monitoring mechanisms that could expose those involved to public scrutiny are still fledgling or nonexistent. An independent National Human Rights Commission remains to be established. It is encouraging that the Southern Sudan Human Rights Commission (SSHRC) has been set up and has taken up its work. However, the SSHRC still lacks an enabling law providing it with a defined mandate, powers and independence.
Children, women and persons with psychosocial disabilities often end up in arbitrary detention since there are hardly any specialized institutions to accommodate their protection needs. Refugees and asylum seekers in Khartoum face an ever growing risk of arrest and detention on charges of illegal entry into Sudan.
The problems identified in this report are serious, but not intractable even bearing in mind that resources are limited as Sudan emerges from decades of conflict. Positive examples of judges, prosecutors, parliamentarians and police officers, who have taken effective action against arbitrary arrest and detention, show that public officials who are committed to upholding the law and the Constitution can make a difference. Reforming institutions is as important as changing individual attitudes. The CPA, the Interim National Constitution and the Interim Constitution of Southern Sudan offer a comprehensive blue print for institutional reform, large parts of which remain to be implemented. The report's table of recommendations is designed to assist the Government of National Unity and Government of Southern Sudan in their efforts to address the concerns identified in this report.