By Tajeldin Abdhalla Adam, Assadig Musa and Katy Glassborow in Hilversum (AR No 239, 19-Dec-09)
Sudanese opposition politicians are warning that it will be impossible to hold free and fair elections next year, unless national security laws are amended.
Since the 1989 coup, which brought Omar al-Bashir's National Congress Party, NCP to power, security forces have had absolute power to arrest and detain people for up to three months - later amended to nine - without trial and often without the need to give justification for such detention.
The main opposition parties contesting parliamentary elections scheduled for April next year fear that such laws could allow the ruling party to indiscriminately arrest and intimidate those who stand in the way of its re-election.
They say the NCP used this legislation to justify riot police breaking up demonstrations with rubber bullets and tear gas in Khartoum this month as tension mounted in advance of the election.
"The hallmark of the totalitarian regime is that it has absolute power to prevent any opposition and exclude anyone who opposes the regime and its policies," said Ali Mahmoud Hassanien, deputy chairman of the opposition United Democratic Party, UDP.
"If state institutions are controlled by the NCP, we cannot have elections because then the procedure would be manipulated. First of all we need to remove the national security laws because they are the head of the snake."
Dr Luka Biong, minister of presidential affairs for the Sudan People's Liberation Movement, SPLM, part of a governing coalition established in 2005, agrees.
"Whatever we try to do politically in terms of democracy, freedom, having a multi-party democracy, we have to start by changing these security laws," he said.
The main party representing South Sudan in Khartoum, the SPLM is also keen for free and fair elections ahead of a referendum to determine whether the south gains independence from the north, scheduled for 2011.
The Carter Center, the only external monitor of the elections in Sudan, along with the United Nations, has already accused the state security apparatus of crushing legitimate election rallies.
In a statement on December 17, the Carter Center said it had "serious concerns about incidents that undermine political rights and fundamental freedoms in Sudan, including: arrests, detention and harassment of civil society and political party members for constitutional and peaceful activity".
Its report said the role of political parties must be respected - which includes their right to hold political rallies and demonstrations.
It also said, however, that political parties have a duty to "exercise restraint and demonstrate responsibility".
In 2008, the UN Special Rapporteur on Sudan wrote that torture is routinely practised by the security services against detainees, and that such violations contravenes not only the constitution, but international human rights standards too.
A recent report by the Project for Criminal Law Reform in Sudan, PCLRS, a coalition of Sudanese and international justice NGOs, stated that security legislation introduced by the NCP in the 1990s give security services broad powers of preventive detention for months at a time without judicial authorisation or review.
"The arbitrary nature of arrest and detention coupled with the almost complete lack of custodial safeguards enhances the vulnerability of detained persons and greatly facilitates human rights violations," the PCLRS said.
Opposition parties say that the 2005 Comprehensive Peace Agreement, CPA, which created a power-sharing government and mandated fair elections, limits the role of security services to intelligence-gathering.
"If someone is accused of a crime, he or she should be tried according to criminal procedural law and taken to a court for a fair trial," Hassanien said. "It is not the right of the security services to arrest someone without any legal accusation [and] detain him in an individual cell."
But Fathi Khalil, the head of the Sudan Bar Association and an NCP loyalist, defended the government´s use of security laws. He said that governments throughout the world use similar laws to detain and interrogate suspected troublemakers.
"If someone is accused of espionage or terrorism, they need to be detained and interrogated for the sake of gathering information," he said. "All basic rights are granted according to the constitution, but practising these freedoms and rights has to be organised by the law."
The Sudanese government was widely criticised for using antiquated criminal legislation to clamp down on demonstrations on December 7 in Khartoum and the southern capital of Juba.
Khalil justified the clampdown by saying that the first priority had to be to restore security. "After that we can speak about how people can practise their rights under the constitution," he said.
When asked whether national security laws are being used as a political tool, Khalil said the issue at stake is the execution of the law, not the politicisation of the law.
But international legal commentator Hafiz Mohammed, from human rights group Justice Africa, said that instead of using security laws to limit freedoms, democratic laws should be used to restrict the actions of security services and police agencies.
Mohammed said that detention and arrest should be governed by judicial orders, not by a state apparatus that sees itself as above the law. "Arrest, detention and interrogation should be the domain of the [police and the] judiciary," he said.
Until this is done, he added, true democracy in the country will remain elusive.
Electoral registration in Sudan was completed on December 7, with 15.7 million out of an estimated 20.7 million electorate signing up for voting next year. The Carter Center said that, by and large, voter registration was peaceful.
This article was produced in cooperation with Radio Dabanga (http://www.radiodabanga.org/), a radio station for Darfuris run by Darfuris from The Netherlands.
Tajeldin Abdhalla Adam is a Radio Dabanga reporter and IWPR trainee and contributor. Assadig Musa is working with Radio Dabanga. Katy Glassborow is the producer of a new radio show for Radio Dabanga about justice issues, and an IWPR reporter in The Hague.