Tracing the roots of discrimination in Sudanese law

Tracing

the Roots of

Discrimination within Sudanese Law

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Tracing the Roots of Discrimination within Sudanese Law ..................................................................................

A Research Paper by: The Strategic Initiative for Women In The Horn of Africa (SIHA) First Published July 2021 ..................................................................................

All rights reserved. No part of this publication may be reprinted or reproduced or utilized in any form or by any means electronic, mechanical or other means now known or hereafter invented including copying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Strategic Initiative for Women in the Horn of Africa. ..................................................................................

Artwork by: Nasrelden Addoma Disgned by:Ayman Hussein

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Foreword ..................

The foundations of systemic discrimination that were laid long before Sudan’s independence in 1956, continue to be visible within the institutions and structures of the Sudanese state today. Its geographical location on the border of the African Savanah paved the way for Sudan’s history of involvement in the slave trade, which has largely contributed to an inherited ethnic and cultural pluralisation among the population inhabiting Sudan. These cleavages have been deepened by the trend of Arab Gulf countries seeking to extend their influence in Sudan by funnelling resources and funding into a small class of elites that conformed to a political Islamist ideology.

Over decades, this small ‘Arabized’ elite has continued to entrench an amalgamation of racial, ethnic, cultural, and gender-based discrimination within Sudanese institutions, structures, and laws. This situation continues to cast a shadow over Sudan’s culture, traditions, polices, laws and overall approach toward its citizens. The social cleavages reached a tipping point in 2011, with the independence of South Sudan. The violence leading up to South Sudan’s independence along with the conflicts in Nuba Mountains, Blue Nile and Darfur speak to the degree to which the Sudanese state has failed to comprehend the impact of ongoing discrimination within the country. Discrimination on the basis of gender cuts across all other forms of discrimination in Sudan, and is particularly legitimised by laws and policies.

Despite a remarkable uprising, which led to the overthrow of the National Islamic Front (NIF) regime in April 2019, two years later we still hear from the testimonies of lawyers and detainees that the majority of the incarcerated population in Sudan is comprised of women and/or people from marginalised, urban and poor communities. Moreover, people from the Nuba Mountains, Darfur and South Sudan along with anyone who is not Muslim, continue to experience some form of discrimination. These groups in particular are subjected to police and security apparatus brutality and corporal punishment, and are often held in long-term detention or imprisonment without access or legal aid. This is in addition to other forms of persecution such as deprivation of access to resources, property or land.

This paper is part of an initiative that was carried out by SIHA to empower poor and marginalised Sudanese communities and women by building their capacities to address injustices, advocate for legal reform, and spread awareness among local communities who are directly affected by patterns of criminalisation and violations of their citizenship rights. The project was implemented in partnership with People’s Legal Aid Centre (PLACE), which is a Sudanese organisation that provides legal aid and specialises in strategic litigation aimed at equal citizenship and legal reform.

The upcoming 2023 election presents an opportunity for marginalised populations in Sudan to start developing civic discourse and taking advantage of the civic space to mobilise and expose the discrimination that is perpetuated by the Sudanese legal system, while advocating for legal reform.

Hala Al Karib Regional Director, SIHA Network

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Acknowledgment ................................

SIHA is grateful for the support of our partner People’s Legal Aid Center (PLACE) and their Director Rifaat Makkawi, for guiding the process of the primary research and interview facilitation and for their valuable feedback. SIHA extends gratitude for the time Dr. Lutz Oette invested to review and provide feedback that was crucially important for the development of this report.

Our deep appreciation goes to Osman Mubarak, a Sudanese human rights lawyer and researcher who worked closely with the primary author/researcher (Suraiya Zubair Banu) in conducting the desk research and navigating articles of Sudanese laws to analyse legalbased discrimination. We also extend our gratitude to Ahmed Sebair, a legal consultant that has been working with SIHA for years. He significantly supported this work by organising the meetings and interviews with community members and members of Sudanese legal institutions. We also thank Faith Sundby James for editing this report.

SIHA is extremely appreciative for the effort and the commitment of the primary researcher and author of this paper, Suraiya Zubair Banu. She is currently a doctoral researcher at SOAS University of London, and conducted this research as the primary focus of a fellowship she undertook for SIHA. This report would not have been possible without the hard work of the SIHA team in Sudan.

Our gratitude goes out to the communities of women and men who shared with us their experiences under the Sudanese legal system.

Lastly, SIHA thanks the Open Society Initiative for Eastern Africa (OSIEA) for their generous support.

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I.I Background ......................

Sudan’s history is replete with periods of fierce contestation about what kind of nation Sudan could be, and what its future should look like. Few periods are a better example of this than the recent 2019 revolution, in which the Sudanese people fought to reestablish their voices in this debate. The revolutionary protests overthrew a regime that had appeared fragile yet untouchable by popular demands mere months earlier. When Sudan’s former president Omar al-Bashir was arrested on April 11, 2019, it seemed that the protestors had succeeded in opening up a new space in which groups of citizens (and non-citizens in some cases) could articulate their concerns and be heard by those in power. Civil resistance The protestors achieved this success, in part, by building on a long tradition of civil resistance movements in Sudan that have used numerous forms of resistance, including strikes and peaceful protests. In addition to peaceful civil resistance tactics, guerrilla warfare was also used by groups from Darfur Nuba Mountains, and Blue Nile to fight for a more just and free society. These movements – from urban protests that ousted rulers in 1964 and 1985 to the revolutionary sit-ins of 2018 and 2019 – have all spoken to a refusal of the discriminatory, elitist and often externally influenced politics that have characterised Sudanese governance since before the country’s flag-independence 1956.(1) Key among the protesters’ concerns in 2019 were the inequalities that generate deeprooted impoverishment on the basis of gender, race, ethnicity and religion that many have argued underlies the workings of the Sudanese state and all of its institutions. This is particularly true of its criminal justice system and the Personal Status Law, which embodies male guardianship and directly affects women in Sudan. Unlike previous revolutionary movements in 1964 and 1985, which emerged from the more middle-class urban centre, the 2019 revolution began and was sustained by “peripheral” rural areas of Sudan and by systematically marginalised ethnic groups, and often led and powered by women.(2) Chants such as “We are all Darfur”, and even the problematic odes to the “Kandaka” women of the revolution(3) articulated the desire for a more inclusive nation in which structural inequalities would be directly addressed, with input from all parts of society.

Yet protestors were aware too of the scale of this task, particularly in the face of the failures of previous protest movements, armed struggles and revolutions to bring about a nation state that supports freedom for women and men from all of Sudan’s diverse 1- W. J. Berridge, Civil Uprisings in Modern Sudan: The ‘Khartoum Springs’ of 1964 and 1985 (Bloomsbury Academic, 2015).

2- Reem Abbas, “Sudan’s protests: The revolt of the periphery,” Al-Jazeera (28 January 2019) https://www.aljazeera.com/indepth/opinion/sudan-protests-people-revolution-led-periphery-190127061619964.html (accessed June 23, 2020).

3-Samreen Alkhair, Insights on Sudanese Women’s Organizing and the Revolution, African Feminism (25 September 2019) https://africanfeminism.com/going-too-far-too-personal-insights-on-sudanese-womens-organizing-and-the-revolution/ (accessed June 23, 2020).

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racial, ethnic and religious groups.(4) The roots of the structural inequalities that exist in Sudanese society go back to pre-colonial and colonial histories of Sudan that created the foundation for modern Sudanese society, and with it not only embedded inequalities of gender, race, ethnicity and religion but also exclusionary and extractive forms of governance that have repeatedly undermined efforts to combat these inequalities.

Colonial regimes tracing back to the 19th century led the process of state making in what was to become Sudan, first through the Ottoman administration beginning in 1821 and then the Anglo-Egyptian condominium in 1899.(5) In many cases these regimes instrumentalized existing ethnic and racial divisions created by the slave trade in the region, and in the case of the Ottomans sometimes instrumentalizing the slave trade itself for economic gain.(6) Divisions between so-called “Africans” and “Arabs” were formed here and re-inscribed through social hierarchies and colonial administrations that supported them.(7) Although less well documented, similar patterns of indigenous gender hierarchies building on the patriarchal logics of colonial administrations of the Ottoman and British empires also shaped the nation upon flag-independence. Furthermore, the extractive and repressive character of colonial rule used particularly against communities in Southern Sudan and otherwise outside the Nile Valley meant that the elite “centre” and the rural “periphery”, and the unequal dynamics between them, also became a founding feature of the Sudanese state and its governing structures.(8) The result of this history is a profound crisis in Sudan’s identity as a nation state. An image of Sudan as an “Arabized,” “Muslim” nation(9) – naturally led by Sudanese elites– was created to the detriment of the multitude of groups that sit outside these categorisations.

This crisis has re-appeared over and again in attempts to determine Sudan’s future, exacerbated by elite led governance that systematically shuts out a wide range of voices.

Sudan has therefore become a deeply divided nation, in which the majority of people have been alienated, and centralised power lies with a minority elite. This minority has fought to maintain control not only of political and economic resources but also of deeper social and cultural forms of belonging. The answer to any questions about the future of Sudan as a nation has to contend with how to address these systemic issues, which many protestors in 2019 saw as addressable only through major revolutionary change to the state and all its structures.

This report will examine how the dynamics of inequality and oppression identified by parts of the revolutionary movement play out in Greater Khartoum’s criminal justice 4-Muhammad Osman, “Inequality and injustice the legacy of Sudan’s September protests” (September 27 2013) https://www. theguardian.com/world/2014/sep/26/sudan-omar-al-bashir-september-protests (accessed June 23, 2020).

5- Fadlalla and Babiker, “In search of constitution and constitutionalism in Sudan: The quest for legitimacy and the protection of rights” in Eds. Oette and Babiker, Constitution-Making and Human Rights in the Sudans (Routledge, 2018) pp. 44.

6- R. Collins, A History of Modern Sudan (Cambridge University Press 2008) pp. 10-14. See also F. Abbas, “Coming to terms with Sudan’s legacy of slavery,” African Arguments (18 January 2016) https://africanarguments.org/2016/01/18/coming-toterms-with-sudans-legacy-of-slavery-2/ (accessed June 23, 2020).

7- A. H. Idris, Conflict and Politics of Identity in Sudan (Palgrave Macmillan US 2005) pp. 23.

8- Fadlalla and Babiker, “In search of constitution and constitutionalism in Sudan: The quest for legitimacy and the protection of rights” in Eds. Oette and Babiker, Constitution-Making and Human Rights in the Sudans (Routledge, 2018) pp. 44-45.

9- M. A. M. Assal “Citizenship, statelessness and human rights protection in Sudan’s constitutions and post South Sudan secession challenges,” in Eds. Oette and Babiker, Constitution-Making and Human Rights in the Sudans (Routledge, 2018).

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system. Specifically, it will examine to what extent this manifests as discrimination within the criminal justice system. This encompasses Sudan’s criminal laws, including laws criminalising specific areas of conduct – a more detailed examination of which can be found below. “Criminal justice” is an incredibly powerful tool of the state that is intimately tied in to state values and systems of morality. It can be used to protect the people (and more often the things and resources) that the state deems worthy, and can be used to exact violence to coerce people into following the state’s demands. This power affects daily life, both in public and in private. The intensity and scope of the state’s criminal justice powers and the enormous effect this has on ordinary people’s lives make criminal justice systems a lightning rod for calls for change.

In Khartoum a wide variety of Sudan’s communities live in close proximity to each other, making it an ideal location in which to examine the ways in which the criminal justice system affects different parts of the population. This includes Sudanese citizens from across Sudan’s regions and ethnic groups, migrants from Sudan’s neighbouring countries, and other communities across socio-economic strata. It is also the centre of business and governance, which draws this diverse cross section of Sudanese society and makes it a focus point both for policing and for reform movements. Greater Khartoum (population estimated at 5,274,321 in 2020)(10) is therefore home to elites in government and business as well as a high number of university students, and to refugees, migrants and displaced persons and others drawn to economic opportunities in Khartoum.

The research for this report was conducted by the Strategic Initiative for Women in the Horn of Africa (SIHA) and the People’s Legal Aid Centre (PLACE). Both SIHA and PLACE have a long history of working on issues of criminal law and discrimination in Greater Khartoum. The Strategic Initiative for Women in the Horn of Africa (SIHA) Network is an indigenous African women’s rights organisation. SIHA was created by women activists from Somaliland, Ethiopia, and Sudan in the mid-1990s. SIHA has worked in Sudan since 2000, focusing on women’s access to justice, social and economic rights and law and policy reform. PLACE is the oldest running legal aid organisation in Khartoum, representing clients on many different issues including cases of discrimination within the criminal justice system. Together SIHA and PLACE have a wide network of contacts including lawyers and other members of criminal justice institutions without whom this report would not have been possible.

10- UN Department of Economic and Social Affairs: Population Dynamics, https://population.un.org/wpp/DataQuery/ (accessed June 23, 2020).

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I.II Methodology ........................

The fieldwork for this research took place between March and August, 2019. This was also the high point of the revolution, which created significant difficulties for the research team in completing the research. Offices were closed for periods during this time, and daily protests meant that interviewees were often unavailable. We were able to manage some of these difficulties by extending the research period, and by being more flexible in when and where we conducted interviews. During this time, the Sudanese revolution also brought historic changes to Sudan and reinvigorated debates about justice in the country, including the criminal justice process. This created some openings for investigation into the institutions of the criminal justice system that may not otherwise have existed, and allowed for some of our interviewees to speak more freely than they would have done only months earlier.

The research focused on qualitative methodologies, aiming to capture the experiences of those affected by criminalisation in the Greater Khartoum area and details about the workings of the system. The target communities for the report were ethnic minorities from marginalised areas including the Blue Nile area, Nuba Mountains and Darfur; refugees and migrants from South Sudan, Ethiopia and Eritrea; marginalised workers including tea sellers, street vendors and sex workers; and religious minorities including atheists, Shi’a Muslims and Christians. These groups were identified using the expertise of SIHA and PLACE who combined have over 40 years of experience working with women in Khartoum, including those who have been subjected to criminal justice processes. The research team collected 55 interviews from experts, institutional actors and from women and men across our target communities between April and August, 2019. The interviewees were selected through snowball sampling. Initial interviews with community leaders and civil society leaders pointed us to members of target groups who were known to have had interactions with the criminal justice system. Cases known to SIHA and PLACE were also starting points in the sampling.

A preliminary research workshop was held and attended by 20 criminal lawyers working in the Khartoum area as well as SIHA and PLACE staff. This workshop helped decide the outline of the research, including demarcating the areas of the criminal justice system that should be explored in more depth and the communities that should be targeted for interviews.

The first phase consisted of consultation interviews, primarily with activists, civil society leaders and others who were able to give an overview of the types of discrimination faced by one or more of the target communities, or who were able to give insight into the workings of an institution involved in criminal justice in Khartoum such as the police or the judiciary. The participants in the consultation interviews were selected using SIHA’s own network of contacts within Sudanese civil society and lawyers organisations in Khartoum.

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The second phase of research consisted of case-focused interviews in which the research team interviewed individuals who were able to speak about their own experiences of discrimination within the criminal justice system.

In addition to the interviews, the research team also analysed selected criminal cases with a view to identifying, and critiquing, the ways in which discrimination works in the legal system, particularly before courts. Cases were chosen according to their relevance to the experiences of one of the target groups outlined above, with a specific focus on emblematic cases that highlight the systemic nature of discrimination. Some of these cases reached the court, in which case analysis of court judgments could take place.

Others had not reached trial stage.

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I.IV The Criminal Justice Legal Framework .....................................................................

Sudan’s current legal system is the result of a complicated history of colonial interference, decisions taken by political elites, civil wars and civil activism and attempts by successive governments to consolidate their own power. This has created a system with some contradictory elements, particularly between de facto and de jure law. It has also created a system that is easily exploited and weaponised against vulnerable members of Sudanese society, despite attempts from parts of Sudanese civil society to include safeguards and to implement reforms. This makes possible the kinds of discrimination charted throughout this report.

I.IV.i Evolution of the Sudanese Criminal Justice System Like most of Sudan’s current systems that became the subject of debate during the 2019 revolution, Sudan’s constitutional framework today has roots in the country’s colonial history. As we saw briefly above, colonial administrative law created a system with repressive tools that lent itself more to resource extraction by elites than human rights protections.(11) Similarly, it was the colonial framework set up by indirect rule that consolidated already existing structural inequalities, particularly between North and South Sudan, and which reinforced ethno-racial and religious distinctions in the country.

Unfortunately, many of these structural issues were consolidated in post-colonial Sudan, despite the efforts of civil society activists and popular movements to undo them.

The first official constitution was promulgated under President Nimeiry in 1973. This constitution followed years of unstable parliamentary governments and military coups.

Some of this instability was brought on by the failure of Northern elites to respond to Southern concerns about inequality and lack of independence from the political centre,(12) although progress had been made in an 1968 draft constitution which called for a regional system of government and the 1972 Addis Ababa Agreement that gave southern Sudan autonomous status.(13) The 1973 constitution consolidated a substantial amount of power in the President’s hands, despite safeguards advocated by parliamentarians. Amendments put forward in 1975 took this further, culminating in President Nimeiry undermining many of the gains made in North-South relations by deciding to split the South into three regions, in violation of the Addis Ababa agreement.(14) This centralisation of power took a further turn through President Nimeiry’s “September 11- Fadlalla and Babiker, “In search of constitution and constitutionalism in Sudan: The quest for legitimacy and the protection of rights” in Eds. Oette and Babiker, Constitution-Making and Human Rights in the Sudans (Routledge, 2018) pp. 44.

12- Ibid pp. 47.

13- Ibid pp. 48.

14- Ibid pp. 54.

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Laws,” which made a specific state sanctioned form of shari’a the basis of the Sudanese legal system. The 1983 Judicial Decision Act in particular made shari’a the overarching rule that governed all other kinds of law, putting into question any other constitutional rights protection. According to this law, a version of which is still in effect, judges may use their own understanding of shari’a to come to final legal decisions. Nimeiry’s new laws also broadened shari’a to reach criminal law, amending the 1974 penal code to include Islamic hudud crimes and punishment, as well as the principle of qisas or retributive justice. This turn to Islamism in the law can best be understood in terms of Nimeirys own weakened political position following conflict in the South due to his violation of the Addis Ababa agreement as well as economic decline.(15) Nimeiry’s attempts to consolidate power through politicising Islamic rule, particularly through Islamic criminal law did not successfully keep him in power, and he was removed through a popular uprising in 1985.

However the process of Islamization went even further after the 1989 coup by the Omar al-Bashir and his Muslim Brotherhood affiliated party, the National Islamic Front (NIF).

The mass dismissal of most judges and police not aligned with the regime following the 1989 coup in combination with the Judicial Decision Act ensured that all legal decisions in Sudan followed the Islamist party line.(16) As well as institutionalising a top-down Islamist ideology to bolster the position of Muslim Brotherhood affiliated elites, the al-Bashir regime also turned to criminal law to increase his administration’s control of the country. The 1991 Criminal Act kept many of the provisions of the 1983 code, and added apostasy as a new crime.(17) Its implementation also followed the repressive path of the 1983 laws, exploiting ambiguities and wielding the force of state violence against those who publicly disagreed with the state’s aims and disproportionately against those who did not fit the administration’s ideal of a Sudanese citizen, as shown in the accounts above. This brief history shows how criminal law has been used as a political tool, both as a method of repression and as a symbolic statement to enforce a specific Islamic identity on the country.

I.IV.ii The Criminal Legal System in Khartoum Today Since the 2019 revolution, a number of developments have already changed the landscape of Khartoum’s criminal justice system. One of the most significant legal changes to have occurred is the Constitutional Declaration signed by the Transitional Military Council (TMC) and the opposition coalition Forces for Freedom and Change (FFC) in August 2019.(18) This replaces the 2005 Interim National Constitution. The declaration outlines 15- Amin M. Medani, ‘Repressive Criminal Legislation: A legacy of institutionalized repression: criminal law and justice in Sudan’ in Ed. L. Oette, Criminal Law Reform and Transitional Justice in the Sudans (Ashgate 2011) pp. 4.

16- Ibid. pp. 6.

17- Ibid. pp. 6.

18- Al-Jazeera, What does Sudan’s constitutional declaration say? (August 4, 2019) https://www.aljazeera.com/news/2019/08/

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the terms of a three year transitional period in which the civilian opposition and military council will share power in a “sovereign council” made up of six civilians and five military leaders.(19) The sovereign council will be led by the military during the first 21 months, followed by a civilian for the last 18 months of the transitional period.(20) Controversially, members of the council will have legal immunity throughout their time in power. A number of laws already gave broad immunities to many state officials, which has led to criticism from activists who argue that this has led to impunity for many serious human rights violations in Sudan.(21) The new constitutional declaration also replaces the Bill of Rights from the 2005 Interim National Constitution with a new “Rights and Freedoms Charter”.(22) Like the old Bill of Rights, the Charter incorporates all the human rights agreements ratified by Sudan.(23) A number of human rights treaties therefore form a part of the Sudanese legal framework.

These include the International Covenant on Civil and Political Rights (ICCPR)(24) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which were ratified during the period between the fall of President Nimeiry in 1985 and the National Islamic Front (NIF) coup in 1989 – a period which saw an expansion of civil society space and some attempts to integrate international human rights. Sudan is also is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and ratified the African Charter on Human and Peoples’ Rights in 1986.

The human rights treaties that Sudan has ratified mean that the Sudanese government is bound to comply with a wide range of human rights obligations. The backbone of the ICCPR, Article 2, maintains that states subject to the ICCPR must “ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”(25) Many of these rights pertain specifically to criminal law.(26) For example, Article 9 of the ICCPR requires that individuals have “right to liberty and security of person” and should not be subject to “arbitrary arrest” or arrest without full information about the reasons for arrest and charges.

Sudan is not a signatory to the Convention on the Elimination of all Forms of sudan-constitutional-declaration-190804182241137.html (accessed June 23, 2020).

19- BBC Africa, Sudan crisis: Military and opposition sign constitutional declaration (August 4 2019) https://www.bbc.co.uk/ news/world-africa-49226130 (accessed June 23, 2020).

20- Al-Jazeera, What does Sudan’s constitutional declaration say? (August 4, 2019) https://www.aljazeera.com/news/2019/08/ sudan-constitutional-declaration-190804182241137.html (accessed June 23, 2020).

21- See e.g. Article 33 of the National Security Forces Act of 1999, Article 45 of the Police Act 2007 (Article 46 of former Act) and Article 34 of the Armed Forces Act 2007. From https://redress.org/wp-content/uploads/2018/01/Jan-08-Priorities-forCriminal-Law-Reform-in-Sudan.pdf (accessed June 23, 2020).

22- Sudan Interim Constitutional Declaration, 2019, Chapter 14.

23- Ibid.

24- However Sudan has not ratified the Second Optional Protocol on the abolition of the death penalty. See Amin M. Medani, ‘Repressive Criminal Legislation: A legacy of institutionalized repression: criminal law and justice in Sudan’ in Ed. L. Oette, Criminal Law Reform and Transitional Justice in the Sudans (Ashgate 2011) pp. 75.

25- ICCPR Article 2.

26- See ICCPR Articles 6, 7, 9, 10, 11, 14 and 145 ICCPR, also 2(3).

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Discrimination against Women (CEDAW). SIHA, and other feminist human rights organisations continue to campaign for the ratification of this human rights instrument and the formal recognition of women’s rights in both the private and public spheres that it would bring.

1991 Criminal Act and Criminal Procedure Act The 1991 Criminal Act has been the primary source of criminal law in the country since its passing at the start of the al-Bashir presidency, and is still in use today. In July 2020, .......................................................................

There are a number of aspects of the transitional council announced a number the law that have caused particular of reforms to the Act that were presented concern for Sudanese civil society, as responses to longstanding criticism from and which have made the law a useful civil society. This section will detail some of tool for repression of Sudan’s most the primary areas of concern regarding the marginalised.

Criminal Act as it stood prior to July 2020, ....................................................................... before addressing the recent changes.

There are a number of aspects of the law that have caused particular concern for Sudanese civil society, and which have made the law a useful tool for repression of Sudan’s most marginalised. A key issue is the ambiguity in the law that makes it difficult for ordinary citizens to know how to act within the bounds of the law, and easy for authorities to wield the law in a discriminatory manner. This is particularly true in the case of laws that can be interpreted in ways that criminalise opposition to the state, which may be used against activists and members of anti-establishment movements.

A second major issue is the broad powers given to the criminal justice system and the relative lack of checks on that power. The power to arrest, for example, applies to a wide variety of crimes and about half the crimes in the Criminal Act are subject to arrest without a warrant pursuant to Article 68(2) of the Criminal Procedures Act.(27) The police also has broad powers to arrest anyone who refuses .................................................................. information such as their name and address under The combination of ambiguity of “suspicious circumstances.”(28) The wide possibilities the law and extensiveness of police of situations that might be deemed “suspicious” powers is worsened considerably shows how ambiguity here can directly lead to by the culture of impunity, including excess of power on the part of the police. laws granting immunity to top The combination of ambiguity of the law and extensiveness of police powers is worsened considerably by the culture of impunity, including laws granting immunity to top officials. Concerns about the immunity of top officials

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27- Nabil Adib, ‘At the State’s Mercy: Arrest, Detention and Trials under Sudanese Law’ in Ed. L. Oette, Criminal Law Reform and Transitional Justice in the Sudans (Ashgate 2011) pp. 44.

28- Sudan: 1991 Criminal Act as Amended in 2009, 21 May 2009, 68(2) available at: https://www.refworld.org/docid/5a8433274.html [accessed 18 April 2021].

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received international attention particularly after the International Criminal Court (ICC) opened investigation in 2005 into war crimes committed in Darfur under the al-Bashir regime, leading to charges against five Sudanese officials including al-Bashir.(29) Although Sudan is not an ICC member, it remains subject to its jurisdiction due to the UN Security Council Resolution 1593.(30) Prior to the revolution, the Sudanese government refused to cooperate with the ICC. In addition, laws including the National Security Law (2010) grant wide ranging immunity to members of the National Intelligence and Security Service (NISS). Similar provisions in the relevant laws also apply to the police and armed forces.(31) The 2020 changes to the criminal justice system have not yet responded to these major concerns, although smaller changes to specific provisions have occurred, and will be examined further in later sections of this report. Following the restructuring of NISS in July 2019, officials within the newly named General Intelligence Service (GIS) announced that they would be taking steps to increase accountability for victims of state violence during the 2013 and 2018/9 protests.(32) A major step was lifting immunity for NISS members, although it is unclear whether this will also apply to members of the new GIS. This also included a travel ban for leaders of the al-Bashir regime, as well as members of the National Islamic Front who were part of the 1989 coup that brought al-Bashir to power. In February 2020, Mohammed Hassan al-Taishi from the ruling sovereign council announced that the regime would cooperate with the ICC. In June 2020, although the Attorney General indicated that proceedings may first have to take place in Sudan,(33) one suspect – Ali Kosheib – voluntarily turned himself in.(34) The steps taken so far shows that the new government in Sudan is considering the problem of impunity granted to officials, however an ongoing lack of clarity and relatively little movement in holding individuals accountable so far means that there are still grounds for scepticism among the Sudanese public. Other aspects of reform include raising the age of criminal responsibility to 18 years (which had previously stood at the age of puberty under the Criminal Act) and abolishing the death penalty for those under 18.(35)

29- Human Rights Watch, ‘Q&A: Justice for Serious International Crimes Committed in Sudan’ (8 July 2020) https://www.hrw. org/news/2020/06/22/qa-justice-serious-international-crimes-committed-sudan (accessed April 16, 2021).

30- Ibid.

31- Amin M. Medani, ‘Repressive Criminal Legislation: A legacy of institutionalized repression: criminal law and justice in Sudan’ in Ed. L. Oette, Criminal Law Reform and Transitional Justice in the Sudans (Ashgate 2011).

32- Dabanga Sudan, Sudan’s Attorney General to lift immunity of former NISS members https://www.dabangasudan.org/en/all-news/article/sudan-s-attorney-general-to-lift-immunity-of-former-niss-members (accessed April 16, 2021).

33- Human Rights Watch, ‘Q&A: Justice for Serious International Crimes Committed in Sudan’ (8 July 2020) https://www.hrw. org/news/2020/06/22/qa-justice-serious-international-crimes-committed-sudan 34- Human Rights Watch, ‘ICC: Sudanese Fugitive in Custody’ (9 June 2020) https://www.hrw.org/news/2020/06/09/icc-sudanese-fugitive-custody 35- SIHA Network, ‘A Collaborative Civil Society Statement in Response to The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom) – Exposing a wolf in sheep’s clothing’ (12 August 2020) https://sihanet.org/a-collaborative-civil-society-statement-in-response-to-the-law-of-various-amendments-abolishing-and-amending-provisions-restricting-freedom-exposing-a-wolf-in-sheeps-clot/

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Sudan’s Personal Status Law: the Source of Legal Discrimination against Women

The Personal Status Law is where the core discrimination against women is generated, which feeds into other Sudanese laws and policies that continue to be the law of land until today.(36) The fundamental concept of .................................................................. guardianship in Sudanese domestic Law is one of Sudan’s Personal Status law treats the greatest restrictions overall to Sudanese women as minors under perpetual women’s freedom. It particularly limits women male guardianship. This means and girls’ ability to control their lives and make that key decisions pertaining to decisions independently. Sudan’s Personal Status education, employment, livelihood, law has still not been addressed by the transitional travel, marriage, birth control government. Under Article 33, guardians are adult and spacing of children, etc., are determined by male guardians men that are Muslim and of sound mind. They rather than women themselves among other things decide upon the suitability of .................................................................. potential husbands, meaning that a woman can effectively be married without her consent if her guardian approves. Articles 25, 32 and through 42 of the Act determine marriage responsibilities and particularly Article 25 sets three essential requirements for the validity of a marriage contract: the inclusion of testimonies of two witnesses, payment of a dowry and the consent of a male guardian.

Sudan’s Personal Status law treats women as minors under perpetual male guardianship.(37) This means that key decisions pertaining to education, employment, livelihood, travel, marriage, birth control and spacing of children, etc., are determined by male guardians rather than women themselves. Such laws deny women full agency and autonomy on matters that impact their lives. Women and children are put in vulnerable socioeconomic situations by laws that fail to protect their rights. The effects of discriminatory Personal Status law and practices, as well as court systems and procedures which limit women’s access to justice, also contribute to poor mental health and other psychosocial impacts on women and children, effectively diminishing their quality of life.

36- SIHA Network, ‘Third Class Citizens: Women and Citizenship in Sudan’ (2015) https://sihanet.org/third-class-citizens-women-and-citizenship-in-sudan/ 37- Musawah, ‘Policy Brief ’ https://www.musawah.org/toolkit/policy-brief-why-muslim-family-law-reform/

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Gendered Dynamics of Criminal Law While all residents of Sudan are vulnerable to abuse at the hands of the State through the criminal justice system, women have long borne the brunt of its violations. This is because the criminal justice system has developed according to political motivations that aim to make it as conducive as possible to controlling the population. Women in Sudan – thought of as the custodians of Sudan’s cultural values - are often subject to the very tightest forms of control, including through the criminal justice system. Women shoulder a large burden of both familial and societal honour,(38) acting as physical representations of a moral code that binds men much more loosely.

The Public Order Laws included forbidding women from dancing in front of men, restricting women’s clothing and has been used to criminalise women found alone in private spaces with men who are not related to them.(39). Many women, particularly activists and women who were otherwise targets of the law due to ethnicity, religion, job type or socio-economic status were subject to arrest and imprisonment over the course of the law’s lifespan.

Despite the abolition of the Public Order Laws in November 2019, after years of campaigning by women’s rights organisations, fairly little has changed. The new legal amendments by the transitional government have cemented and further legitimised discrimination against women. The July 2020 amendments stated that flogging will continue to be practised as part of Sudan penal code against women and men according to Articles 145 (fornication) and 146 (punishment for adultery) have not been removed from the law, which means that flogging and death penalties still apply to persons who engage in consensual sexual practices. In the amendment of Article 148, the penalty for homosexuality between a man and a man was reduced from life imprisonment or the death penalty to seven years in prison, and removed the punishment of flogging, but the amendment still considers homosexuality a punishable crime.

The Public Order Police and Public Order Courts still function under the auspices of the Criminal Act. The 1991 Criminal Act also includes many clauses that apply only to women. Section 152 of the Criminal Act criminalises “indecent dress” with very similar effects to the Public Order Laws.(40) The 2020 changes to the 1991 Criminal Act did include amendments to provisions concerning rape. An amendment in 2015 had attempted to clarify the definition of rape in Article 149 of the Criminal Act by distinguishing between rape and “zina” (sex outside of marriage).(41) However, the Evidence Law of 1994 remains in effect, and Article 145 38- Asma A. Halim, ‘Gendered Justice: Women and the Application of Penal Laws in Sudan’ in Ed. L. Oette, Criminal Law Reform and Transitional Justice in the Sudans (Ashgate 2011).

39- SIHA Network and The Redress Trust, Criminalisation of Women in Sudan: A Need for Fundamental Reform (November 2017).

40- Criminal Act 1991, Section 152.

41- Walaa Salah. ‘Amendments to Sudanese criminal law’ (30 April 2015) https://www.opendemocracy.net/en/north-africawest-asia/new-amendments-to-sudanese-criminal-law/

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(fornication) and 146 (adultery) remain in effect. The 1994 Evidence Law provides very limited scope for proving rape, in comparison to adultery and fornication which can be proved through pregnancy and sworn oath from a woman’s husband. This means that women who attempt to accuse their rapists may face punishment for adultery which still includes flogging and execution. These evidentiary laws therefore discriminate against women by giving an unbalanced amount of power to men, especially in cases such as sexual assault.

It is particularly unjust that two of the very few means to prove an accusation of adultery can only be applied to women: pregnancy and the sworn oath of condemnation of adultery from the husband. The fact that these two items continue to be accepted as proof (that does not need to be corroborated), is a blatant violation of women’s right to equal judgment before the law. Furthermore, it cements the institution of patriarchy within families and partnerships as the acceptance of a man’s oath of condemnation of adultery as proof can be weaponized by the man whenever he wants, whether by claiming adultery or denying lineage.

Women are also under-represented within the machinery of the criminal justice system.

Although there are women police officers and judges, very few make it to top positions.

Our interviews with members of the police force all noted that while women are on the force, they are likely to have jobs that keep them within the police offices and off the streets. Women police officers may also themselves be subject to sexual harassment and other kinds of misconduct.(42)

42- Police Interview 1.

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I.III .....................

Examining discrimination against marginalised groups in the Greater Khartoum criminal justice system is not a straightforward task, in part because of the many ways in which discrimination can be understood and the ways in which it can be operationalized at various junctures within the system. This report will focus on the definitions of discrimination set forward in the international legal instruments to which Sudan is a State party.

Discrimination under International Law The principle of non-discrimination often goes hand in hand with that of equality, in the sense of equality before the law and equal protection by the law.(43) The Human Rights Committee states that discrimination refers to: “[A]ny distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which .................................................................. has the purpose or effect of nullifying or impairing In this case, evidence of the recognition, enjoyment or exercise by all discriminatory intent or attitude persons, on an equal footing, of all rights and is often helpful as is comparing freedoms.”(44) the ways in which different groups are impacted differently by the application of the law.

Racist language used by police or judges for example, could show discriminatory attitude. A pattern of dramatically different sentences could also be used here.

This means that some kinds of differential treatment are possible, and are even deemed necessary within the logic of the human rights system. However different outcomes based on one of the prohibited grounds listed above would not be a legitimate differentiation, unless it is .................................................................. clearly and proportionally tied to a legitimate governmental aim.(45) According to the Human Rights Committee, this aim “may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind.”(46) Discrimination may also manifest itself in various ways within a legal system, both on the face of the law (de jure discrimination) and in the application of law (de facto discrimination). Discrimination on the face of the law is typically easier to determine, 43- Office of the High Commissioner for Human Rights and International Bar Association, Human Rights in the Administration of Justice Professional Training Series No. 9, https://www.un.org/ruleoflaw/files/training9chapter13en.pdf (accessed June 23, 2020).

44- General Comment No. 18, in United Nations Compilation of General Comments, pp. 134, para. 1.

45- ECHR, Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention, https://www.echr.coe.int/Documents/Guide_Art_14_Art_1_Protocol_12_ENG.pdf.

46- I-A Court HR, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984, Series A, No. 4, p. 104, para. 54.

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since it means that the law is explicitly discriminatory. The clearest example of this is the case of laws on religion in Sudan, some of which explicitly discriminate against nonMuslims such as in the case of laws against apostasy. Discrimination in the application of the law is more difficult to show, as it depends on uncovering instances in which similar laws are applied differently to different groups. In this case, evidence of discriminatory intent or attitude is often helpful as is comparing the ways in which different groups are impacted differently by the application of the law. Racist language used by police or judges for example, could show discriminatory attitude. A pattern of dramatically different sentences could also be used here.

Discrimination and Intersectionality Discrimination is not a simple or single layered occurrence. Many individuals and groups face overlapping kinds of discrimination within the criminal justice system. The idea of intersectionality is helpful here. First coined by Kimberle Crenshaw, it points to the ways in which different kinds of discrimination overlap and intersect leading to specifically disadvantageous outcomes for a group or individual that might be missed if we only consider types of discrimination as standalone issues. In Sudan, as will be explained further below, discrimination based on ethnicity, religion and job type, for example, often intersect such as in the case of Christian street vendors ethnicised as “African”.

While this report will be examining discrimination in Khartoum’s criminal justice system generally, we are particularly interested in the intersection these kinds of discrimination have with gendered discrimination against women. SIHA has previously reported on the ways in which women are criminalised in Khartoum, particularly through the Public Order Regime – a legal regime of institutions and special police introduced to control people (predominantly women) in both private and public spheres. These laws have been used to criminalise women’s behaviour, restricting actions to those narrowly defined as acceptable under the government’s interpretations of Islamic law.(47) Women also face discrimination in other parts of the law, since the differential treatment of men and women is acceptable in many instances under shari’a, particularly in areas such as family law which often overlap with the criminal system.

47- SIHA Network and The Redress Trust, Criminalisation of Women in Sudan: A Need for Fundamental Reform (November 2017).

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Inequality and Discrimination in Sudan II.I Religious Discrimination Discrimination on the basis of religion is a recurring theme in complaints about rights violations in Sudan. This section will explore some of the background of religious discrimination in Sudanese law including within the predominant understanding of shari’a, and lay out the practical effects of these laws on women living in Khartoum.

II.I.i Political Islam and law in Sudan Although Islam has a long history in what is now Sudan, the current hegemonic articulation of Islam that has been institutionalised through Sudan’s legal system is relatively new. Islamic practice was traditionally driven by the Sufi orders and their teachings of Islamic mysticism. More “orthodox” or “formal” Islam rose gradually under Turkish and Egyptian rule, and extended to leaders of the Mahdiyya State (18851898), which held power until being defeated by British colonists.(48) The British policy of indirect rule strengthened the role of Islam in Northern Sudan in institutions such as schools and courts. Its “Southern policy” effectively stopped the spread of Islam in Southern Sudan, instead supporting some missionary activity there(49) although some Muslim communities continued in areas such as Renk, Kodok, Malakal, Wau, Rumbek and Juba.(50) The Southern policy also included the British concentrating their extractive development efforts in the North of the country, purposely allowing the broadly although not exclusively Christian South to remain underdeveloped. This policy not only lead to the stark differentiation of Northern and Southern Sudan, considered further below, but also provided the foundations for Islamic state institutions.(51) The year 1983 marked a turning point for the role of Islam in the Sudanese state, when the then-President Nimeiry announced legislation that would implement an official form of shari’a across Sudan in the midst of the growing influence of the Muslim Brotherhood.(52) Shari’a then moved from a source of law that governed only personal matters, to the supreme law of the country.(53) Considerable resistance to these new laws was found not 48- R. Collins, A History of Modern Sudan pp. 17-18 (Cambridge University Press 2008).

49- Ibid. pp. 41.

50- LSE Centre for Africa, ‘British policy in Anglo-Egyptian Sudan bears some responsibility for the deep-rooted divisions between North and South’ (2 July 2012) https://blogs.lse.ac.uk/africaatlse/2012/07/02/british-policy-in-anglo-egyptian-sudanbears-some-responsibility-for-the-deep-rooted-divisions-between-north-and-south/ 51- Abdullah Ali Ibrahim, Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898–1985 (Brill 2008).

52- R. Collins, A History of Modern Sudan (Cambridge University Press 2008) pp.146 53- Casciarri and Babiker Eds., Anthropology of Law in Muslim Sudan: Land, Courts and the Plurality of Practices (Brill

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only among Sudan’s then large non-Muslim population, but also from Muslims such as the influential Mahmoud Mohammad Taha, who was executed for his vocal opposition to the new laws in the most controversial trial in Sudan’s history.(54) The 1989 coup led by Omar al-Bashir finalised Sudan’s transformation into a “shari’a state.”

This Islamist revolution transformed the institutional framework and overhauled the judiciary, police and intelligence services. The move also made final the legal supremacy of a single reading of Islam over the diverse beliefs of Sudanese citizens. Shari’a as understood in this system is based on a specific reading of Islamic texts, based primarily on the Maliki madhab but drawing on more conservative aspects of other madhabs as well. Some consider the relatively conservative approach taken to be superficial. It is not the only interpretation of the texts, and the particular interpretation runs contrary to the views of many other religious scholars. Other, more flexible approaches to Islamic traditions are available that take into account broader principles of justice and context.

Secular arrangements that take into account the diversity of Sudan’s belief systems are also possible. The debate about the correct interpretation of Islamic texts and the correct way to derive law from these texts has been controversial in many countries. However, many Muslim majority countries have worked on reconciling between their Islamic tradition and their identity and in harmonizing their secular state structure that obliges them to comply with international human rights mechanisms. The Sudanese’s national state since its inception has shown minimal tolerance towards religious minorities particularly minority followers of different sects of Islam or atheists. (55)Ismail al-Azhari, the Chairman of the Supreme Council of State (SCS), surprised his audience on the Greater Bairam holiday in December 1968 by announcing that his administration would give Sharia court Gadis the upper hand over the civil judges by replacing the colonial laws in place with shari’a. In siding with the qadis and their law, al-Azhari was obviously taking it out on the secular, Civil Division of the Judiciary. He had not only been censured three years before by the Civil High Court for banning the Communist Party in 1965, but also had a case, as he spoke, pending before the same court for violating the Constitution by prematurely dissolving the Constituent Assembly in February 1968. The trial of Mahmoud Mohammad Taha who advocated for a goals-based approach to Islamic law.

The reforms allowed for differentiated treatment between Muslims that followed the state’s orthodoxy, and non-Muslims and other Muslim minorities. The law allows for explicit differential treatment between these groups in ways that push against international legal standards requiring different treatment to be reasonably connected to a legitimate governmental aim.(56)

2018).

54- Ibid.

55- Abdullah A. Ibrahim, Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in the Sudan, 1898-1985 (Brill 2008).

56- Casciarri and Babiker Eds., Anthropology of Law in Muslim Sudan: Land, Courts and the Plurality of Practices (Brill 2018) pp. 94.

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Apostasy Laws Apostasy laws have been one of the most controversial aspects of the Islamic legal regime, and of Sudan’s criminal law. The trial of Mahmoud Mohammed Taha in January 1985 brought the problem of apostasy into the public eye a few years before legislation existed that made apostasy a crime. The obviously political nature of the trial, and its association with the Islamist regime, made apostasy a lightning rod issue for many. The July 2020 amendments to the Criminal Act removed the crime of apostasy from the law, potentially terminating a major point of concern for Sudanese civil society.

The Maliki jurisprudence, previously used by the ex-regime of Bashir and the National Islamic Front (NIF), did not recognize the right of every person to change one’s religion from Islam to another religion, and imposed the death penalty or confiscation of property if the apostate person did not repent. There were alternative penalties in case the person accused of apostasy had repented. The severe consequences of this law, which had been enshrined in the 1991 Criminal Act, as well as the potentially wide scope of actions that could be said to have “denied Islam” made apostasy laws prone to political exploitation.

The most famous example of this in Sudan was of course the case of Mahmoud

Mohammad Taha, a Muslim reformer who was executed by the Jaafar Nimeiry regime in 1985 where at the time Hassan ‘Abd Allah al Turabi, the well-known Islamist politician and founder of the NIF was acting as Sudan general persecutor. Taha was declared an apostate in 1967 under a multi-party system government. Then in 1986 he was arrested in January on those grounds and later persecuted and sentenced to death. In January 1985 he was hanged to death After the president President Nimeiry directed the execution, he was 76 of age at the time. His court statements show how even Islamic beliefs could lead to an apostasy conviction, if those beliefs are different from the precise understanding of religiosity supported by the government.

Women were often particularly negatively affected by the harsh treatment of supposed apostates. The Maliki School of jurisprudence also puts restrictions on the validity of marriage on the basis of religion. For example, they do not allow marriage between a Muslim woman and a non-Muslim man. They also prohibit marriage between a Muslim man and a woman who does not believe in any of the heavenly religions (Islam, Christianity or Judaism). This opinion is based on the classical interpretation of the holy Qur’an verse 2: 221, Surah Albaqarah: (And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe.

And a believing slave is better than a polytheist, even though he might please you). So, based on this verse, classical scholars prohibit the abovementioned sorts of marriages.(57) 57- Shamsu-Alddin Al-Qurtubi, Tafsir Al-Jami’e Li-Ahkam Quran, available in Arabic at: http://quran.ksu.edu.sa/tafseer/qortobi/sura2-aya221.html#qortobi.

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On this basis, the four Sunni schools adopted the opinion that it is necessary to annul the marriage of a man deemed an apostate because he is not considered a Muslim and therefore he is not qualified to marry a Muslim woman, if his wife is a Muslim. This is not itself a criminal punishment, but an overlap between family law and criminal law that affects women.

Under the old apostasy laws, if the husband is declared an apostate and his wife is a Muslim, the marriage relation would automatically be declared null and void on the ground of the abovementioned rule which states that a Muslim woman is not allowed to marry a non-Muslim man. Thus, in the case of Mahmoud Mohammed Taha, the family Court in Sudan declared him an apostate and annulled his marriage from his Muslim wife.

A second example is the case of Sudan Government vs. Mariam Yahya and Daniel Wani.(58) In this case, a Christian Sudanese man married a Sudanese woman in 2011. Later the wife, who was the first accused in this case, was declared an apostate and sentenced to death and to flogging (100 lashes) because the Court found her guilty under article 126 of the Sudanese Criminal Act of 1991 (apostasy) and article 145 of the same Act. She was convicted of adultery on the ground that she is supposed to be a Muslim and therefore her marriage to a Christian man must be considered null and void. Her two children born during this marriage was considered as crucial evidence of having illegal sexual intercourse with her husband. Her husband, who was the second accused in this case, was declared innocent and released on the grounds that there was no evidence presented before the Court proving that he knew before that she was a Muslim at the time of marriage. Based on the presumption of innocence principle, he was not supposed to know that the woman he had married was a Muslim when he married her in 2011. Later the Court of Appeal quashed the decision of the Court of first instance on the basis of evidence submitted and not on the merits of the case.(59) The July 13, 2020, legal amendments by the transitional government included amendments to a number of articles of the Criminal Law of 1991, the Criminal Procedure Law of 1991, the Law Political Parties of 2007, National Security Law of 2010, Traffic Law of 2010, Passports and Immigration Law of 2015, and Public Prosecution Law of 2017. Despite the amendment of Article 126 (from criminalizing apostasy, to criminalizing anyone who accuses someone of apostasy), the amendments did not address many issues of personal freedom that continue to go unprotected. Rather, they included a clear violation of the principles of human rights contained in regional and international agreements and charters that Sudan has ratified.

58- Haj Yousif Criminal Court, case No. 5/hudud/2014.

59- SIHA Network, ‘A Collaborative Civil Society Statement in Response to The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom) – Exposing a wolf in sheep’s clothing’ (12 August 2020) https://sihanet.org/a-collaborative-civil-society-statement-in-response-to-the-law-of-various-amendments-abolishing-and-amending-provisions-restricting-freedom-exposing-a-wolf-in-sheeps-clot/

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The amendments also emphasized the full infliction of punishments for Hudud crimes, and in fact, Article 170 (amended) stipulates that a special law be issued to determine the threshold for petty theft, which this confirms the adoption of amendments to corporal punishments such as amputation of the hand, amputation of (hand and foot), execution, crucifixion and flogging, which gravely contradict the principles of human rights that call unequivocally for the abolition of the death penalty and other corporal punishments, especially when employed to punish acts that constitute personal freedom.

Discrimination Against non-Muslims Non-Muslims have been treated as second class citizens in Sudan throughout the country’s history. The al-Bashir regime that ruled between 1989 and 2019 envisaged Sudan as a Muslim country. This approach created fresh impetus to discriminate against Sudan’s non-Muslim minorities. Sudan continues to have a significant Christian population, even after the secession of South Sudan as well ....................................................................... as other religions including animists. Many A lawyer who is a part of the Christian Lawyers Association of Sudan, spoke Sudanese non-Muslims also come from areas to SIHA researchers about a sustained whose populations have historically been policy by the NIF regime of making subject to state abuse, particularly from the the lives of Christians and other Nuba Mountain and Blue Nile regions. This points to one of the ways in which different This included the destruction of kinds of discrimination often overlap in churches and the denial of land grants to establish new Christian places of Sudan. Non-Muslims from these regions are worship. stigmatized not only for their religion, but also ....................................................................... for their ethnicity and regional background.

Not all non-Muslim groups within Sudan are treated with the same level of state aggression, although all are marginalised relative to Sunni Muslims. Coptic Christians, for example, are said to face less stigmatisation than Christians from ethnicities deemed “African”, despite the considerable ambiguity of these terms. Coptic Christians enjoyed generally good relations with the al-Bashir regime after 1989, due to their ethnic, social and economic backgrounds.(60) They are closely affiliated with the Egyptian Coptic Church, and their close ties to Egypt allow them to emphasise an “Arab” identity that sat well with the al-Bashir regime.(61) A lawyer who is a part of the Christian Lawyers Association of Sudan, spoke to SIHA researchers about a sustained policy by the NIF regime of making the lives of Christians and other non-Muslims as difficult as possible.(62) This included the destruction of churches and the denial of land grants to establish new Christian places of worship. As always, criminal justice also played a major role in carrying out this policy against non60- Casciarri and Babiker Eds., Anthropology of Law in Muslim Sudan: Land, Courts and the Plurality of Practices (Brill 2018).

61- Ibid.

62- Consultation Interview 01.

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Muslims. Members of congregations that attempted to rebuild church buildings that had been destroyed were arrested in 2014, and a further 37 congregation members who asked to see a warrant for the destruction of new church walls were arrested in Khartoum on a later occasion.(63) Church congregations are said to be subject to monitoring by the state’s security apparatus.(64) Conversely, anti-Christian policy is also evident in impunity for crimes against Christians. For example, a number of churches are reported to have been burned in Khartoum in 2011, following the secession, but no arrests were made.(65) The institutions of the criminal justice system to some extent reflect the policies of the state to exclude Christians. There has never been a Christian Chief Justice of the Supreme Court, or Attorney General.

“According to the law, anybody can be a judge. However any non-Arab, non-Muslims who are appointed are purely cosmetic, and have many restrictions. They must be affiliated with the [al-Bashir] regime. So the very limited number that there are belong to and support the government.”(66) – Lawyer in Khartoum, July 2019 This same logic does not apply to ordinary police officers, many of whom are Christian and from areas such as Nuba Mountains and Darfur that have been subject to governmentled terror campaigns and underdevelopment. The “subordinate” ranking of ordinary police and the dangerous situations they are implicated in means that these positions are more often filled by the marginalised.

Laws such as Sudan’s Personal Status law and the Criminal Act which already allowed for women in general to be targeted, are also overwhelmingly used against non-Muslim women from more marginalised backgrounds. Christian women are often targeted for dressing in ways that do not conform to the standards imagined by Islamic judges. One interviewee – a young Christian woman of Nuba ethnicity – told us about her encounter with these laws: “We were walking down the street after a religious conference at a church in Khartoum

at around five o’clock in the afternoon. We were a mixed group of men and women. We were stopped by police, and only women were asked to get into the police vehicle. None of us were given an explanation about why we were arrested until we appeared in court. They told us we were not properly dressed and we had to pay fines or stay in jail.” – Christian Student, Omdurman, July 2019(67) Some of the most heart-breaking stories of de jure legal discrimination implicate the Personal Status law, particularly those that govern custody of children. According to 63- Report on Freedom of Religion p2 64- Consultation Interview 01.

65- Report on Freedom of Religion, p2 66- Consultation Interview 01.

67- Interview 050.

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Article 114 of the Personal Status law custody should be given to the parent with the “best religion.” In cases in which non-Muslim women are married to Muslim men, this provides additional reason to deny a mother custody, even if it would otherwise be in the best interests of the child.

“I came to Sudan from Ethiopia when I was 15 years old. I worked as a tea-seller and met a Sudanese man who had a shop near my stand. He was later sent to prison for financial reasons so I went back to selling tea on the street. When he was set free from prison he had developed addictions to drugs and alcohol. He was physically abusive towards me and as a result I had a female baby who was born with physical disabilities.

When I tried to get a divorce and maintenance for my children he refused.

We separated and the children came with me. Their father then filed for and was awarded custody of the oldest daughter and son because I am not Muslim. After the court decision my ex-husband left the children with me, so I still looked after the children but was not able to claim maintenance.

The Judge told me to go back to Ethiopia if I want to teach my children Christianity.”

Christian Tea Seller, Khartoum (68) Stories like these show how the explicit discrimination on the basis of religion can affect women, and again how overlapping forms of discrimination on the basis of religion, gender, class and migrant status can create situations in which women are actively mistreated by legal institutions such as courts.

68- Interview 049.

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Discrimination Against Muslim Minorities It is not just non-Muslims that are subject to discrimination via criminal law. As the apostasy conviction of Mahmoud Mohammad Taha showed, even Muslims who did not toe the line of Muslim Brotherhood Islamism were subject to discrimination in the law.

The Shi’a community in Sudan is also subject to significant restrictions not only on their freedom of religious expression but on many other freedoms as well because of their religion. Shiism in Sudan is focused in Khartoum, and is said to be particularly popular among Sudan’s intellectual and social elite.(69) This, in combination with the relatively organised nature of the Shiite minority and their alleged ties to Iran made them targets of suspicion under the al-Bashir regime.

Sudan’s complicated relationship with Iran helps to explain the uncomfortable status of Sudanese Shi’a Muslims. The previous long-time partnership between the two countries crossed the Sunni/Shi’a divide until Sudan announced that it would be cutting ties with Iran in 2016.(70) The downward turn in Sudan-Iran relations is widely understood to be because Sudan’s financial difficulties increasingly led it to turn to Saudi, Iran’s biggest rival in the Middle East. Since Iran is the largest Shi’a nation in the region, Shi’a Muslims in Sudan are understood to be closely affiliated with Iran. Gestures such as the closure of three Shi’a centers around Khartoum in 2014(71) showed loyalty to Saudi Arabia at the expense of Shi’a freedom of religious practice.

Testimony from three Shi’a individuals living in Khartoum all spoke to high levels of surveillance, interference with daily life and threatening run-ins with police and security forces. Shi’a’s live in Sudan with the constant knowledge that they are being watched by the state security apparatus, and that their friends or colleagues might be acting as informants. All the testimonies referred to a state policy of surveilling known members of the Shi’a faith in Sudan.

The active campaign against the Shi’a minority, including raiding of Shi’a places of worship, worsened during the war with Yemen,(72) in which Sudanese soldiers have been fighting alongside Saudi Arabia against Iran-backed Yemeni forces. However, these political fears on the part of the NIF-controlled government usually had little to do with the actions of the Shi’a minority in Sudan, which simply wishes to worship in peace. One man told us that the government often confiscates Shi’a books that come into the country, and has closed down Shi’a meeting places and places of worship since 2014.(73) Our interviews also brought up the issue of arbitrary arrest and detention, even when not linked to an apostasy charge. A Shi’a woman told us about her experiences with the security services: 69- Casciarri and Babiker Eds., Anthropology of Law in Muslim Sudan: Land, Courts and the Plurality of Practices (Brill 2018).

70- The Guardian, “Why has Sudan ditched Iran in favour of Saudi Arabia?” (12 January 2016) https://www.theguardian.com/ world/2016/jan/12/sudan-siding-with-saudi-arabia-long-term-ally-iran (accessed June 23, 2020).

71- Al Jazeera, Shia books spark debate in Sudan, (22 December 2006) https://www.aljazeera.com/news/africa/2006/12/2008525121645645606.html (accessed June 23, 2020).

72- Interview 055.

73- Interview 054.

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“I was brought to the National Security Service- (NISS) offices twice. They knew everything about me including the places I would go to worship. They asked for a lot of private information about me… Once when I was travelling to Egypt in 2014 they came and stopped me. They took my passport and wanted to hire me as agent to work for them [to relay information about Shi’a organisations in Egypt]. I chose not to travel and did not become an agent. They took my phone and searched my phone. I was not given the option to ask for a lawyer. Anyway, there was no case for a lawyer here. This is the security regime, it is outside the law.” – Shi’a Woman, Khartoum, June 2019(74) These policies affected both Shi’a men and women, however actions such as shutting down Shi’a places of worship particularly affects Shi’a women, who have fewer public avenues through which to build community with others of their faith.

Because the legal justice system in Sudan is explicitly a religious one, discrimination based on religion is often apparent on the face of the law as well as in its application.

This puts Sudan’s laws at odds with its human rights obligations unless it can be shown that abiding by certain interpretations of shari’a is a legitimate governmental aim. More importantly, it puts Sudan’s laws at odds with a significant part of its population. There are many possible models that would allow for the coexistence of different religious groups within a nation. Sudan’s recent past has benefited one group of Muslims over many other Muslims and non-Muslims. A more just future might still include Islamic laws, but would provide the space for all others to live their lives without prejudice.

74- Interview 055.

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Ethnic and Racial Discrimination Background Ethnic and racial inequality in Sudan, which is perhaps the country’s deepest line of division, has given rise to its most intense conflicts and continues to be a point of contention within debates about the future of the Sudanese nation. Often simplified in terms of inequality between “Africans” and “Arabs,” the history of the construction of ethnic and racial hierarchies in Sudan shows that these dichotomies erase considerable complexity and can play into the hands of oppressive structures themselves.

Sudan’s legacy of slavery is crucial to understanding the process of racialization that designated some Sudanese ethnicities as “Black,” in relation to their “Arab” counterparts.

As Jok Madut Jok makes plain, the articulation of a racial ideology was fundamental to the persistence of the Arab slave trade in Africa, just as the slave trade provided the foundation for racializing schemas used today.(75) These schemas are not always obvious, particularly to those outside Sudan. “Sudanese popular notions of race are not based on phenotypes alone, and they are not fixed. They are also pegged to a host of practices such as religion, economic activities, material conditions, the naming of people and other cultural practices.”(76) The categories are also fluid. Speaking Arabic as a first language, for example, may move someone towards the Arab end of the racial spectrum as might practicing Islam. Successive colonial regimes – Turkish, British and Egyptian – each with their own anti-Black racial ideologies, in many ways legitimised and institutionalised the racializing frameworks of the slave trade.

By the time of independence, the “Arab” elite, supported by the British colonial regime and situated in central locations of power were well placed to attempt the creation of a nation state defined by their own “Arab,” Muslim image, despite the reality that a majority of Sudan’s population at the time did not fit this designation. This set the stage for the post-colonial “identity crisis” that has shaped the Sudanese nation-state.

The most dramatic result of this identity crisis was the secession of South Sudan, which saw the predominantly non-Muslim, “African” part of the country form its own nation.

This followed many years of violent conflict. The legacy of the British “Southern Policy” – which enforced the unequal development of North and South Sudan – left its mark in the continued under-development, exploitation and social, economic and political marginalisation of the South.(77) By 1983, a series of failed attempts at peace and high levels of distrust led to the creation of the Southern People’s Liberation Army/Movement (SPLA/M).(78) The movement, led by John Garang, first sought to unify the nation under the idea of a “new Sudan,” that would respect the diversity of its people and open up the 75- Jok Madut Jok, War and Slavery in Sudan (University of Pennsylvania Press 2001) pp. 87.

76- Ibid.

77- Abdel Ghaffar Mohamed Ahmad, Sudan Peace Agreements: Current Challenges and Future Prospects (2010), https:// www.cmi.no/publications/file/3645-sudan-peace-agreements.pdf (accessed June 23, 2020).

78- Ibid.

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nation building process beyond the “Arab” military and political elites in Khartoum.

However this never came about. Although a Comprehensive Peace Agreement was signed in 2005, which officially ended decades of war, the democratic transformation envisaged therein did not materialise, a development that culminated in South Sudan’s secession in 2011.

The split between Sudan and South Sudan only fuelled the Sudanese government’s desire to turn Sudan into a comprehensively Arab and Muslim nation-state. Continued violent marginalisation against populations in areas such as Darfur, Blue Nile and the Nuba Mountains underscored the administration’s policy, which offered a choice only between capitulation to the government’s exploitative policies or decimation.(79) Unsurprisingly, given this predicament SPLA groups in Blue Nile and the Nuba Mountains have fought against regime forces since 2011.(80) The possible motivations for Khartoum’s military actions in these regions are multifaceted, and should not be understood on purely ethnic or racial grounds. The Nuba Mountains, for example, is also a site of contention due to boundary disputes with South Sudan and questions about pastoral grazing lands.(81) Similarly, the conflict in Blue Nile state can equally be attributed to contestation over the control of the area’s rich agricultural, mineral and water resources.(82) In all these cases, the continually shifting goal posts of Arab-Islamic supremacy are used to split local populations and pit groups against each other.(83) These complexities show how race is operationalized in ways to protect and serve the governmental elites. The history of disregard by these elites for “African” lives through enslavement, dispossession and other forms of violence cannot therefore be fully understood without foregrounding race (and its troubled counterpart, ethnicity)(84) as an analytic.

79- Guma Kunda Komey, Sudan Working Paper, Civilians’ Survival Strategies amid Institutionalized Insecurity and Violence in the Nuba Mountains Sudan (2016) pp. 8.

80- Khalid Ammar Hassan, Spilling Over: Conflict Dynamics in and around Sudan’s Blue Nile State, 2015–19 http://www.smallarmssurveysudan.org/fileadmin/docs/reports/HSBA-Report-Sudan-Blue-Nile.pdf (accessed June 23, 2020).

Ibid.

81- Guma Kunda Komey, Sudan Working Paper, Civilians’ Survival Strategies amid Institutionalized Insecurity and Violence in the Nuba Mountains Sudan (2016) pp. 9.

82- Khalid Ammar Hassan, Spilling Over: Conflict Dynamics in and around Sudan’s Blue Nile State, 2015–19 http://www.smallarmssurveysudan.org/fileadmin/docs/reports/HSBA-Report-Sudan-Blue-Nile.pdf (accessed June 23, 2020).

83- Ibid.

84- For more information on the relationship between race and ethnicity in Africa, see Jemima Pierre, The Predicament of Blackness: Postcolonial Ghana and the Politics of Race (2012).

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Discrimination Against Marginalised Ethnicities in Khartoum Darfur The majority of migrants from Darfur living in Khartoum are from the Zaghawa, Fur and Masalit ethnic groups, all of which have suffered under sustained government led violence.(85) This violence often continues in Khartoum, with attacks on camps in which internally displaced persons (IDPs) live on the outskirts of the city. Other forms of harassment abound, and are often carried out by police and security personnel. Darfuris in Khartoum interviewed for a 2018 report point to harassment faced by business people, labourers and students, including the forcible shutting of Zaghawi shops, and being stopped and beaten by security forces.(86) Three interviewees from Darfur gave further details about these conditions, particularly with regards to treatment within the criminal justice system and by law enforcement more generally: “I was personally terrorized [by the NISS], they said to me ‘we’re going to kill you. We are going to get someone to make an accident with you. We are going to kill you with a knife.’ [They] mentioned the colour and license plate of my car. [There were] at least 20 calls, [they] also sometimes sent messages. Started in April 2017 until the regime fell. I was targeted for activist activities. Because I was defending cases of Darfuri students.” – Darfuri Lawyer, July 2019(87) This mistreatment by security forces also continued during the 2019 protests:

“During the protests there was a big difference in the way [“African”] people from Darfur were treated. Even after the regime fell, they let a lot of people out but they didn’t let out people from Darfur. If you want to come out you will have to “light skin yourself ” i.e. change your skin color to be more “Arab”. Even during the protests they were targeting not just the houses of Darfur students but also the family houses of [those] students.” – Darfuri Lawyer, July 2019 (88) Our interviewees spoke about a number of famous cases of violations of the rights of Darfuris within the criminal justice system such as that of the murder of a Sudanese journalist in 2009 which led to the accusation, arrest and execution of 9 Darfuris despite eye-witness evidence suggesting that they had not been involved. – Darfuri Lawyer, July 2019 (89) 85- Susanne Jaspars and Margie Buchanan-Smith, Darfuri migration from Sudan to Europe: From Displacement to Despair, Overseas Development Institute (2018), https://www.odi.org/sites/odi.org.uk/files/resource-documents/12385.pdf (accessed June 23, 2020).

86- Ibid. pp. 29.

87- Interview 056.

88- Interview 056.

89- Interview 056.

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Nuba Mountains The Nuba people, from the Nuba Mountains in South Kordofan are a heterogeneous group composed of more than 80 communities, mostly classed as “African” within the predominant racializing schema of Sudan.(90) Those forcibly displaced to Khartoum from the Nuba Mountains are both Muslim and Christian, often fleeing the violence of conflict and underdevelopment enacted by the central government in Khartoum in the Nuba Mountains region. Many Nuba migrants living in Khartoum report harassment and discrimination at the hands of the police and state security forces. Reports of targeted raids and arrests of neighbourhoods predominantly populated by Nuba people are common, such as the 2014 report of the arrest of 40 individuals in Omdurman for supposed “disturbance of public peace”, during which the police used racist and discriminatory language as well as physical and extreme sexual violence against one Nuba woman.(91)

Blue Nile Migrants from the Blue Nile region face many similar problems to those from Darfur and the Nuba Mountains, but have historically received less attention from civil society and international organisations. One activist from Blue Nile State decried this state of affairs, mentioning that there are very few groups that support the Blue Nile region, most of which are based in Sennar State.(92) Despite this, individuals from Blue Nile have been key to resisting government oppression in Sudan. The protests in 2018 are reported to have started in Blue Nile, in the city of Damazin.

Hausa and Fulani Communities A long history of migration from West Africa has also led to the existence of large Hausa and Fulani communities in modern Sudan. These communities are affected both by the racial discrimination prevalent in Sudanese society, and by more specific types of ethnic discrimination that mean their experiences differ from Black ethnicities deemed indigenous to Sudan.

The Tariq al-Sudan (Sudan Road) brought West Africans from as far as areas now known as Mauritania and Mali across the Sahel.(93) Some of these migrants travelled this road 90- Asylum Research Centre (ARC), Situation in Khartoum and Omdurman (2015) pp. 14, https://www.refworld.org/docid/55efe85e4.html (accessed June 23, 2020).

91- African Centre for Justice and Peace Studies, “Police violence and mass arrests in Omdurman following reported gangrape of Nuba woman by police officers,” (8 July 2014) https://www.acjps.org/police-violence-and-mass-arrests-in-omdurmanfollowing-reported-gang-rape-of-nuba-woman-by-police-officers/ 92- Blue Nile Consultation Interview.

93- Madina Thiam, “From The Niger to the Nile,” Africa is A Country https://africasacountry.com/2020/11/from-the-niger-tothe-nile (accessed December 5, 2020).

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to or from pilgrimage to Mecca and Medina, and settled in Sudan along the way. Others fled European colonial incursions, and chose to resettle in Sudan rather than live under colonial rule. Hausa and Fulani Muslims from West Africa fled both French and British oppression.(94) Many West African migrants joined the ranks of the Mahdiyya in 18811898, fighting against the British. These old communities of West Africans continue to grow with migrants travelling to Sudan for economic and educational opportunities.

Nigerian students travelling to Sudan to study Arabic, for example, make a significant part of the population at the African University. The Hausa, Fulani and Kanuri (a smaller West African ethnic group) population in Sudan today is estimated to stand at around 10 million people. The largest Hausa and Fulani communities are found in Darfur, Blue Nile, Eastern Sudan and al-Gadharif and work in agriculture. However a sizeable population also lives in Khartoum, particularly around the “Abuja Market” in Engaz, a suburb of Khartoum.(95) Despite the centuries long history of Hausa and Fulani communities living in Sudan and taking part in many levels of Sudanese society, many Hausa and Fulani still report discrimination on ethnic as well as racial grounds. In 2009, former President Omar alBashir was reported to have said that Hausa-Fulani people living in Sudan were not Sudanese, and should not be allowed to vote in the 2009 election.(96) A peaceful protest in response to these comments was met with violence by the al-Bashir regime, resulting in four deaths and many other casualties.(97) This disregard is mirrored in the experiences of many Hausa-Fulani with the state’s criminal justice arm, which often intervenes in attempts by Hausa-Fulani people to access basic rights. As one man told us:

“There is no justice, when we go to the court to ask the officers about our cases they insult us and try to eject us from their offices. When we are arrested, we are sent to custody without witnesses.” Hausa man, May 2019(98) These issues affect Hausa-Fulani people even when they do not seek any help from the state:

“I know a man who spent five years in Sudan then decided to go back to Nigeria over land. He was arrested and brought to court, possibly because 94- For the purposes of this report, Hausa and Fulani communities will be looked at together, in part because there is considerable overlap between the two and many people identify as Hausa-Fulani because of centuries of shared history. However, Hausa and Fulani communities may also be distinct, and do also have distinct histories within Sudan.

95- Nuruddeen Abdallah, “A Day with the Hausa-Fulani of Sudan,” Daily Trust (15 May 2011) https://dailytrust.com/a-daywith-the-hausa-fulani-of-sudan (accessed December 5, 2020).

96- Mahmoud A. Suleiman, “The Hausa-Fulani are Genuine Sudanese, Mr President!,” Sudan Tribune (2 November 2008) https://sudantribune.com/spip.php?article29127 (accessed December 5, 2020).

97- Nuruddeen Abdallah, “A Day with the Hausa-Fulani of Sudan,” Daily Trust (15 May 2011) https://dailytrust.com/a-daywith-the-hausa-fulani-of-sudan (accessed December 5, 2020).

98- Interview 045.

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he lacked travel documents. He stood before court but got to opportunity to speak and was sentenced to a fine of 5000 SDG. The court told him that if he comes back he will be sent to prison. The man told them that he was just trying to go home but they wouldn’t listen to him.” Hausa man, May 2019(99) It is difficult to see these experiences changing significantly without concentrated efforts to include Hausa-Fulani people in plans for a new Sudanese society. Many participants in this project expressed little hope that things would change after the revolution. Their cynicism is understandable, particularly because Hausa-Fulani people feature relatively little in mainstream conversations about the “new Sudan”.

Broader Patterns of Ethnic Discrimination Many individuals from Darfur, the Nuba Mountains and Blue Nile spoke about how they are made vulnerable to abuse due to suspicions – based only on their ethnic backgrounds - that they are involved in rebel movements. Students from marginalised areas of Sudan involved in campus activism are particularly likely to suffer abuse at the hands of police and security personnel. Although the rights of free speech and free assembly were enshrined in the 2005 Interim National Constitution,(100) many students found that they were nevertheless harassed, imprisoned and even killed if they attempt to exercise those rights.(101) In 2015, leading up to the general election, more than 221 students from Darfur were arrested by police and national security.(102) In 2017, eight Darfuri students spoke out about the murder of three students also from Darfur, alleged to have been carried out by students close to Omar al-Bashir’s National Congress Party (NCP) regime.

The eight students who spoke out were arrested and taken to Kober prison in Khartoum, where they spent over two years in prison without trial. When they finally went to court, they were not sentenced due to the total lack of evidence. The NCP affiliated students who had been accused were finally convicted of the murders in 2019, following the fall of the NCP regime.(103) Association with student politics can have repercussions even after graduating.(104) As one interviewee noted, his association with groups that spoke up against the former regime led to his arrest many years later, on suspicion of being involved in movements such as the SPLM.(105) Very similar stories can be told about students from other marginalised regions. In 2015, the Nuba Mountains Peoples Foundation submission 99- Interview 045.

100- Interim National Constitution of the Republic of the Sudan, 2005 (Sudan), 6 July 2005, available at: https://www.refworld. org/docid/4ba749762.html (accessed 18 April 20).

101- Asylum Research Centre (ARC), Situation in Khartoum and Omdurman (2015) pp. 9, https://www.refworld.org/docid/55efe85e4.html (accessed June 23, 2020).

102- Amnesty International, Urgent Action, Activists’ whereabouts unknown after arrest, (29 May 2015), https://www.amnesty.org/download/Documents/AFR5417592015ENGLISH.pdf (accessed June 23, 2020).

103- Interview 056.

104- Interview 056.

105- Interview 057.

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.

.

to the Committee on the Elimination of Racial Discrimination stated that Nuba students living in Khartoum were subject to “racial aggression and social discrimination” around the city including the universities. This included incidents in which Nuba students were attacked by student groups affiliated with the then NCP regime.

Women students from marginalised regions of Sudan have had to face the additional threat of sexual harassment and abuse at the hands of police and security. A Human Rights Watch report in 2014 documented some cases of such abuse, in which 18 female Darfuri students were arrested for refusing to move out of their dormitories at the University of Khartoum and who were accused of affiliation with Darfuri rebel groups.(106) The women were beaten and interrogated, and “verbally abused by the use of racist and sexual obscenities” as well as physically abused by police “fondling sensitive parts of the body”.(107)

Other, non-student, activists are also targeted:

“I have been arrested more than four times. The last time I was arrested when I was going to a refugee camp. They brought me in to the station. Even the room they give us [“African” Darfuris] was not like the rooms they gave the other people. They only allowed some people to call their families but not us. They didn’t give me anything to sleep on, despite having given other people the same. I ....................................................................... spent more than 4/5 days at the station without A group from the Blue Nile State being able to contact my family. In November told SIHA that travelling was made 2018, I spent 20 days [at a prison], and 25 days [at another prison]. They accused me based on were not able to acquire National ID his activities when I was in the University. They cards. They had been denied the cards accused me of being a member of the SPLM, South Sudanese, because they had nonbeing part of the Darfur Lawyers Association Arabic names – yet another form of and of giving information to human rights discrimination based on. ethnicity NGOs.” – Darfuri Lawyer, July 2019. .......................................................................

Unfortunately, many of those who suffer from these injustices have little access to resources that might help, including legal advice or other legal services.(108) This is a particular problem for those for whom Arabic is not a first language, since court processes and police work are conducted in Arabic.

Another major issue that affects many from marginalised ethnicities is a lack of access to basic government services and paperwork, which undermines their ability to operate as full citizens within Sudan. A group from the Blue Nile State told SIHA that travelling was 106- Asylum Research Center pp. 10, citing US Department of State Country Report on Human Rights Practices 2014 – Sudan, 25 June 2015, Section 1.c, 1.e, 2a.

107- Radio Dabanga, “Women Initiative condemns ‘racist attack’ on Darfur students” (9 October 2014) https://reliefweb.int/ report/sudan/women-initiative-condemns-racist-attack-darfur-students (accessed June 23, 2020).

108- Blue Nile Group Interview.

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made very difficult because many of them were not able to acquire National ID cards.

They had been denied the cards because officials believed they were South Sudanese, because they had non-Arabic names – yet another form of discrimination based on ethnicity.(109) Travelling without an ID card makes individuals vulnerable to arrest and harassment, and a number of individuals in the group told SIHA that the police had stopped them from travelling due to their lack of ID cards.

During the protests leading up to the fall of the al-Bashir regime there were many accounts of the much harsher way in which “African” protesters from marginalised regions were treated in comparison to those deemed to be “Arab”. Protests in neighbourhoods that tend to be lower income and populated by migrants and others from “African” ethnicities were also more heavily policed during the protests, and any protesters in these areas were subject to even higher levels of violence than those protesting in central Khartoum.(110) Over the past ten months the campaign of ethnic tension in Darfur has significantly intensified, The January 2020 tribal armed conflicts between the Massalit tribal group and Maialia and other pastoral Arabized communities in Al Junaynah , West Darfur, leading to over 80 civilians being killed.(111) One year forward in January 2021 anther tribal conflict erupted in Al Junaynah a similar conflict erupted leading to over 80 civilian deaths.

Ethnic and Racial Discrimination against Women While both men and women from marginalised regions are targets of police and security violence, there are some areas in which women are especially affected. This is particularly true of women who work outside the home in professions that are deemed inferior – such as tea selling or domestic work, or contrary to Islam – such as alcohol making - even if the women are not Muslim. One lawyer and activist on Darfuri issues told SIHA staff that he had witnessed multiple counts of abuse of Darfuri women by police in Khartoum, and had acted as a trial lawyer in the case of a Darfuri tea-seller who had had hot water poured over her intentionally by the police during a raid.(112) There are also many reported incidents of sexual assault of women from marginalised ethnicities, particularly those who work outside the home.

In 2014, Radio Dabanga reported on a raid by the Rapid Support Forces on El-Fateh,(113) a district in Omdurman primarily populated by migrants from Nuba Mountains and Darfur.(114) The RSF not only injured over 20 people, but also raped two women who were 109- Blue Nile Group Interview.

110- Interview 057.

111- BBC News, Sudan’s Darfur region: ‘More than 80 killed’ in clashes. (18 January 2021) https://www.bbc.com/news/ world-africa-55695118 112- Interview 056.

113- Radio Dabanga, Sudan: Two raped, 20 wounded in militia attack on Omdurman district, (1 December 2014) https://reliefweb.int/report/sudan/sudan-two-raped-20-wounded-militia-attack-omdurman-district, (accessed June 23, 2020).

114- The Rapid Support Forces (RSF) were a paramilitary established under the Sudanese intelligence services, initially as a militia to fight in Darfur. RSF fighters were previously Janjaweed militia fighters, and they have been accused of multiple

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reported to be living on a block where homemade alcohol was sold. This use of sexual violence against women from marginalised regions has become a devastating pattern. As the head of the Sudanese Women Union in Khartoum stated in 2019,(115) “the [al-Bashir] government in Khartoum is using rape as a weapon against opposition forces in Darfur, the Nuba Mountains in South Kordofan, and the Blue Nile State. Even in Khartoum, women and girls from these conflict zones are sexually harassed by government forces”.(116) Hausa-Fulani women also bear the overlapping burdens of attempting to navigate a society that seeks to disempower them on ethnic, racial and gender based grounds: “I have been living in Khartoum for 15 years. My husband and many of the husbands of the women around me left. I tried to get maintenance for my children but the judge was unfair and gave me only 30SDG per day for my four children. Two of my husband’s children from another wife also live with me, so I have to take care of six children. All the responsibility is on the women, not on the men. Because I’m Black, when I talk to the judge he doesn’t respect me. Once the judge ordered that I be flogged when asking for maintenance money, but a lawyer intervened.” – Hausa woman, May 2019(117)

“Many Hausa women work as domestic workers, but when we have problems we cannot go to the police. If they do a case is filed against them by the family and it will end badly for them. I know a women who went to work with an Arab family and now no one knows where she is. We don’t trust the police to look for her.”

Hausa woman, May 2019(118) Ethnicity also affects the extent to which women are criminalised for “moral” crimes of the kinds identified in the Public Order Laws. Darfuri students in Khartoum reported that the Public Order Police would closely monitor their gatherings and cultural events in order to intimidate them with the threat of arrest for violating the dress or behavioural codes of the Public Order Laws.(119)

crimes against humanity in Darfur. They were also the primary force used to implement violence against protesters during the 2019 revolution.

115- Asylum Research Center pp. 7.

116- Radio Dabanga, Sudan’s Women Union, Darfur Centre welcome HRW report, (15 February 2015) https://www.dabangasudan.org/en/all-news/article/sudan-s-women-union-darfur-centre-welcome-hrw-report 117- Interview 045.

118- Interview 045.

119- U.S. Department of State, Country Report on Human Rights Practices 2014 - Sudan, 25 June 2015, Section 1.c, 1.e, 2a.

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Discrimination Against Foreign Migrants and Refugees Background Sudan’s geographic position, size and reputation for hospitality has historically made it a migration route for many Africans looking to access North Africa, the Middle East and Europe for reasons of trade and religious pilgrimage among others. Many thousands of West African migrants settled in Sudan over time, many on the way to or from Mecca.(120) Immigration rose from Eritrea and Ethiopia during the 1960s and ‘70s, as political violence in the region rose in Eritrean areas in the 1960s, and during the time of the Derg regime from 1974 onwards.(121) Drought and famine in the 1980s also led to increased migration from Ethiopia.

Today, Sudan continues to be a hub for migration for refugees and other migrants looking for safety, security and better life opportunities.(122) A recent study by the International Organisation for Migration, surveying reasons for migration to Sudan lists (i) safety, security and freedom (ii) financial and economic reasons, and (iii) family and relatives related reasons as the top three causes of migration to Sudan. Sudan is estimated to host around 297, 168 South Sudanese refugees, and 140, 626 refugees from other countries.(123) The latter includes refugees from Syria, Yemen, Chad, Nigeria, Democratic Republic of Congo, Somalia, Ethiopia and Eritrea. The number of migrants and refugees passing through Sudan has attracted a considerable amount of attention from European states and the European Union (EU) looking to reduce flows of migration into Europe. Rather less attention has so far been paid to the experiences of migrants and refugees who are living in Sudan, either temporarily or long-term.

However, despite Sudan’s status as a critical migration point, the legal protection provided for migrants and refugees has been inadequate. One of the most controversial policy frameworks is the “Khartoum Process”, which shows how Sudan’s vulnerability to outside pressures affects human rights within the country. The Khartoum Process, officially known as the EU-Horn of Africa Migration Route Initiative, primarily aims to keep migrants from the Horn of Africa away from the EU – either by pushing them to return to their “home” countries or containing migrants in “third” countries such as 120- Kibreab, Gaim. “Eritrean and Ethiopian Urban Refugees in Khartoum: What the Eye Refuses to See.” African Studies Review, vol. 39, no. 3, 1996, pp. 131–178.

121- Ibid. pp. 132.

122- This report will use the International Organization for Migration’s (IOM) definitions to discuss the experiences of those who have migrated to Khartoum. “Migrant” will be used as an umbrella term to refer to those who are residents or citizens of countries outside Khartoum, and in this section predominantly outside Sudan, who have migrated to Khartoum. “Asylum seeker” will be used to refer to individuals who are seeking international protection in Sudan according to recognized processes. “Refugee” is a person who “owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality.” Not all refugees have official refugee status, which in Sudan requires applying for a refugee ID card.

123- International Organization for Migration, Migrants in Sudan: Pilot Study on Migrants Motivations, Intentions and Decision Making in Khartoum (2017).

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Sudan.(124) The EU has pursued this policy of migration management despite the known risks to migrants and refugees of returning to their original countries of residence and in third countries like Sudan. The human rights abuses prevalent on the migration route to Europe including human trafficking, slavery, rape and poverty are well documented.(125) By promising support in exchange for the collaboration of the Sudanese government, the EU has been able to protect its own interests at the expense of migrants from the Horn, while also pushing responsibility for the human rights abuses that result onto third country collaborators. In Sudan, this has meant increased crackdowns and deportations of Eritrean refugees, as well as allegations that the Rapid Support Forces (RSF) already responsible for massive human rights violations in Darfur had been tasked with ensuring that migrants do not cross over into Libya from Sudan.(126)

Khartoum Today Many of the refugees residing in Sudan live in and around Khartoum. Over 120,000 refugees from Ethiopia, Eritrea, Somalia, Chad, Syria and Yemen who are in “need of assistance” live in Khartoum, according to the UNHCR.(127) Over 30,000 registered refugees, particularly from South Sudan also live in Khartoum’s “open areas”, and it is estimated that around 157,000 refugees live in these areas in total.(128) 50 percent of those surveyed by the IOM in 2017 did not agree with the statement “After migrating to Khartoum I feel safe”.(129) Over 50 percent disagreed with the prompt “After migrating to Khartoum I feel more free than in my own country.” This was particularly true of respondents from Eritrea (less than 40 percent agreed) and Nigeria (only 11 percent agreed). Few of the respondents (33 percent) agreed that they had access to better healthcare in Khartoum than in their home countries.(130) Even fewer agreed that they were able to meet their basic needs after migrating to Khartoum. A majority of respondents were unemployed while in Khartoum, and of those that were employed only a small minority received a regular salary. These survey responses paint the beginnings of a picture of the conditions of refugees and migrants living in Khartoum, which involves precarious employment, violence and insecurity, and lack of access to basic resources.

124- Caitlin Chandler, How Far Will the EU Go to Seal its Borders? (Summer 2018) Dissent Magazine, https://www.dissentmagazine.org/article/how-far-eu-seal-borders-khartoum-process-central-mediterranean-migration (accessed June 23, 2020).

125- Ibid.

126- Marwa Jalal, Outsourcing Fortress Europe: The Khartoum Process and the rebranding of Sudan’s brutal militia, October 27 2019, Mena Solidarity Network, https://menasolidaritynetwork.com/2019/10/27/outsourcing-fortress-europe-the-khartoum-process-and-the-rebranding-of-sudans-brutal-militia/ (accessed June 23, 2020).

127- UNHCR, Sudan Country Refugee Response Plan (January 2020) http://reporting.unhcr.org/sites/default/files/Sudan%20 2020%20Country%20Refugee%20Response%20Plan%20-%20January%202020_0_1.pdf (accessed June 23, 2020).

128- UNHCR, Sudan: Site profile - Khartoum ‘Open Areas’ (February 3, 2020) https://reliefweb.int/report/sudan/sudan-site-profile-khartoum-open-areas#:~:text=Khartoum’s%20’Open%20Areas’%20are%20informal,Nile%20localities%20 of%20Khartoum%20State. (accessed June 23, 2020).

129- International Organization for Migration, Migrants in Sudan: Pilot Study on Migrants Motivations, Intentions and Decision Making in Khartoum (2017) pp. 63.

130- Ibid. pp. 66.

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The reality for women refugees and migrants in Khartoum is therefore a very difficult one.

A study of Ethiopian women refugees in Khartoum conducted in the early 1990s shows the ways in which women have faced additional difficulties when migrating to Sudan for many decades. The women in the study reported being subject to sexual abuse and kidnapping at the hands of Sudanese border police.(131) Once in Khartoum, life continued to be difficult. Livelihoods such as brewing and selling alcohol were circumscribed by the 1983 laws. Stereotypes among Sudanese officials about Ethiopian women engaging in prostitution also made Ethiopian women refugees in Khartoum targets for surveillance and abuse by police, as well as insults and intimidation from society at large.(132) Many of these findings continue to be true for Ethiopian women living in Khartoum today. Time spent in jail for Ethiopian women migrants, for example, comes with high risks of physical and sexual abuse both by prison guards and other inmates who look down on Ethiopian women due to stereotypes. The association of Ethiopian women with sexual promiscuity and moral decline, also makes them targets for public order police, who may use flimsy evidence such as being alone with a man as proof of sexual crimes including zina and prostitution. Eritrean women migrants face many of these same difficulties, and Eritrean migrants in general cite physical protection and safety as one of their top concerns – particularly safety from police harassment and abuse.(133) Many Eritrean women report frequent threats of sexual violence from the Sudanese community as well as police, and lack of access to resources that could protect them.(134) Few of the Ethiopian women refugees surveyed in the 1990s were able to find employment in Khartoum, partly because of language difficulties and public order laws restricting women’s movement that reduced the job opportunities for women. Most of the women reported having no other choice than domestic work, despite the many complications and hardships that this kind of work entails. Once again, this trend continues on to this day. Eritrean women surveyed in 2018 stressed that the restrictions on their movement added significantly to their problems, and increased the risks to their own safety and the safety of their children.

Since the secession of South Sudan in 2011, many with South Sudanese heritage lost their Sudanese citizenship after Sudanese citizenship laws were amended to state that anyone who obtained South Sudanese citizenship “de jure or de facto” would no longer be a Sudanese citizen.(135) Sudanese government officials have interpreted this to mean that any resident of Sudan with even one South Sudanese great-grandparent (understood as someone to have been born in South Sudan) would no longer be a citizen of Sudan – irrespective of whether that individual actually planned to acquire South Sudanese citizenship.(136) 131- Kibreab, Gaim. “Eritrean and Ethiopian Urban Refugees in Khartoum: What the Eye Refuses to See.” African Studies Review, vol. 39, no. 3, 1996, pp. 142.

132- Ibid. pp. 143.

133- UNHCR Participatory Assessment Report Sudan 2018 pp. 52.

134- UNHCR 2018 pp. 54.

135- Human Rights Watch, Sudan: Don’t Strip Citizenship Arbitrarily (March 2, 2012) https://www.hrw.org/news/2012/03/02/ sudan-dont-strip-citizenship-arbitrarily#:~:text=Under%20Sudanese%20law%2C%20which%20was,authorities%20should%20 determine%20whether%20they (accessed June 23, 2020).

136- Ibid.

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.

.

This pushed many individuals with South Sudanese heritage to move back to South Sudan. Many women in particular were affected by Sudan’s decision to revoke citizenship for those considered South Sudanese, since according to Sudan’s laws this also applied for any women who were married to men with South Sudanese heritage. Section 10(2) of Sudan’s Nationality Act states that “Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.” This law, in combination with the constitutional provision in Article 7(3) of the Interim National Constitution that “no naturalized Sudanese shall be deprived of his/her acquired citizenship except in accordance with the law” has allowed for the many Sudanese women married to South Sudanese men to lose their citizenship, due to their de-facto acquiring of South Sudanese citizenship through marriage.(137)

Although many considered to be South Sudanese through heritage or marriage were pushed out of Sudan, a considerable number remained, and still more South Sudanese have been driven back to Sudan as refugees due to the escalating conflict in South Sudan.

An estimated 200,000 new South Sudanese refugees arrived in Sudan in 2017 due to violent conflict and food insecurity in Unity, Upper Nile and Northern Bahr Ghazal in South Sudan.(138) 64% of South Sudanese refugees live in urban areas and out-of-camp settlements rather than in refugee camps, in part through the application of the “Four Freedoms Agreement” which allows for freedom .................................................................. of residence for South Sudanese nationals in Since the secession of South Sudan.(139) Some South Sudanese refugees Sudan in 2011, many with South Sudanese heritage lost their live in abandoned buildings and make-shift Sudanese citizenship after Sudanese accommodations around Khartoum, including citizenship laws were amended to in wealthy neighbourhoods such as Amarat in state that anyone who obtained central Khartoum.(140) South Sudanese citizenship “de jure or de facto” would no longer be a Sudanese citizen.

Southern Sudanese residents of Khartoum often express the feeling that they are treated as “second .................................................................. class citizens”.(141) This is partly due to the racism and violence that many South Sudanese residents face in Khartoum. In 2019, attacks on South Sudanese in Omdurman led to at least 1,600 of them to relocate to other areas. Nine South Sudanese refugees were killed in the attacks and others were injured.(142) Refugees living in these areas also report that they are often accused of being responsible for increased levels of crime in their areas.

This combination of suspicion and state sanctioned violence gives both communities and police a broad mandate to harass and discriminate against South Sudanese people living in Khartoum.

137- SIHA Network, ‘Third Class Citizens: Women and Citizenship in Sudan’ (2015) https://sihanet.org/third-class-citizens-women-and-citizenship-in-sudan/ pp. 12.

138- UNHCR 2017 Participatory Assessment Report pp. 5.

139- Ibid.

140- Grabska, Katarzyna & Miller, Peter. The South Sudan House in Amarat: South Sudanese enclaves in Khartoum. Égypte/ Monde arabe (2016) pp. 31.

141- Mohamed A.G. Bakhit, The Citizenship Dilemma of Southern Sudanese Communities in the Post-secession era in Khartoum, Egypte/Monde Arabe (2016).

142- “‘S. Sudanese still at risk of more attacks in Khartoum’ UNHCR” https://eyeradio.org/s-sudanese-still-at-risk-of-more-attacks-in-khartoum-unhcr/ (last accessed April 16, 2021).

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“They [police] usually say to me that you jenubeen [southerners] have wasted the city [Khartoum] go back to your country [South Sudan].”

South Sudanese alcohol seller, 32(143) All refugees living in Sudan are required to register with the office of the Commissioner for Refugees, and to carry an ID card identifying them as refugees. About 36 percent of refugees surveyed by the IOM consider themselves asylum seekers.(144) 20 percent of those surveyed have refugee status in Sudan. Eritrean migrants in Sudan have prima facie refugee status, meaning that they are accorded refugee status regardless of their reasons for migration.

The ID requirement subjects refugees to surveillance, and provides the police and security officers with the justification to stop anyone they believe to be from outside Sudan. The ID requirement can also lead to extortion. A number of the young Eritrean women interviewed by SIHA reported that police and security officers would ask for money in return for letting them go when they were found not to have ID cards with them.

Others spoke of violence from people assumed to be police or security officers during random stops in which they acted with impunity.

“I have been attacked by some people who do not wear any uniform; I don’t know if they are police or any force army. It happened…2 years ago. I [was] searched by them, and because I don’t know Arabic…my friend that I was going with talked to them in Arabic [for me]. I received injuries on my feet [from the police], at that time I was 6 months pregnant. There were no witnesses only me and my friend.”

Eritrean student and refugee, 25, July 2019.

“I was attacked by five people carrying guns who did not wear any uniform. They asked me to show my card, the refugee card, and they searched us and took our phones. This happened in Al-Daim during the time of the protests. They beat us but no serious injuries were left. It lasted for 10 minutes. There were no witnesses only the boy with me. We did not press criminal charges.” - Eritrean student and refugee, 25, July 2019.

This is true even if refugees carry a UN refugee status card, because police in Khartoum require all refugees to purchase a refugee ID card from the police station.(145) Courts may sometimes release refugees who are found to have a UN refugee status card, since that card is a legal equivalent to the refugee ID card. However, this has not curbed the cases of police arresting, fining and extorting refugees or those merely assumed to be refugees.(146) Time in detention is sometimes substituted for fines for those who are unable to pay, creating a sentencing hierarchy based on economic status. Those who have not been able to pass screening and obtain legal refugee status face even starker consequences, 143- Interview 018.

144- International Organization for Migration pp. 41.

145- Consultation Interview Eritrean 1.

146- Consultation Interview Eritrean 1.

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including fines of up to 5,000 Sudanese Pounds, imprisonment and deportation in extreme cases.(147) Yet even here, money can do away with threats of prison time and deportation. This reality means that communities face pressure to come up with large sums of money on short notice to protect those facing criminal charges.

One major issue that affects many migrants who come into contact with the criminal justice system is that of language, since many do not speak Arabic at the level needed to fully comprehend the criminal justice process. Many of those interviewed by SIHA mentioned that no translation service was provided for them in the courtroom. One lawyer mentioned that the court had allowed him to use translators in cases that he oversaw as part of his capacity as a lawyer working with the UNHCR, but that he had to arrange for the lawyers for his clients himself through the UNHCR.(148) Other lawyers who work with non-Arabic speakers as part of their private practice have had more difficulty, with some judges refusing to allow translators into the courtroom. In one case, a lawyer reported that the judge decided to add the translator to the list of the accused, stating that he had smelled alcohol on the translator’s person!(149) The difficulty in obtaining translation services pertains to the entire criminal justice process, from arrest to sentencing.

Although there are some legal services provided for refugees, many migrants living in Khartoum are not aware of them and do not know how to access them. Many migrants do not feel safe reporting harassment or assault to the police, and fear police and community retaliation as well as arbitrary arrest, exploitation and even deportation.(150) This is especially true for women who face sexual and gender based violence, who must deal with the additional stigma of this type of violence as well as the lack of care with which authorities often respond to it. All Congolese women refugees surveyed in 2018 by the UNHCR stated that sexual and gender based violence was their primary protection concern.(151) .......................................................................

As of early 2020 SIHA has been monitoring an According to SIHA’s community increase in attacks and hate discourse against workers’ reports “service committees” in the various neighborhoods refugees from Ethiopia and Eritrea who live developed a procedure for distributing in Khartoum’s middle class neighborhoods. bread and cooking gas to the residents.

According to SIHA’s community workers’ This procedure involves issuing cards reports(152) “service committees” in the various to households which they have to use neighborhoods developed a procedure for before buying bread and cooking gas in the designated neighbourhood. distributing bread and cooking gas to the ....................................................................... residents. This procedure involves issuing cards to households which they have to use before buying bread and cooking gas in the designated neighbourhood. In order to receive a service card, it is mandatory that the recipient provides a national ID number. As a result, 147- Consultation Interview Eritrean 1.

148- Interview 047.

149- Interview 035 150- UNHCR Report 2018 pp. 52.

151- UNHCR Report 2018 pp. 53.

152- Voluntary bodies that were formed to replace localities, supported by FFC.

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refugees and migrants have been denied the right to receive the service cards, since they are not acknowledged as Sudanese citizens thus do not possess national ID numbers.

Most of the bakeries in Al Gireif and Al Daim have refused to sell bread to people with no service cards. Although there are a few bakeries that have allowed them to buy bread, they still have to line up in a separate queue, in which each non-card holder receives the service after 10 - 15 card holders have been served.

From January 2021 and as a result of the severe and brutal economic crises and harsh bread scarcity across the capital, the Khartoum governor has banned refugees and migrants form other forms of purchasing bread. This decision is a reflection of the xenophobic trends that were nourished by impunity towards the violations of refugees’ and migrants’ rights.

Job Based Discrimination Women have always formed a significant part of the workforce in Khartoum, despite the many restrictions and limitations women face in Sudan. The UNDP in 2015 estimated that around 24.3 percent of women older than 15 were employed in Sudan. Many women who work do so in the informal sector. This is particularly true for women from marginalised ethnicities and religious backgrounds, as well as refugee and migrant backgrounds. Some jobs in the informal sector, such as alcohol selling, are almost exclusively the domain of those outside the “Arab” groups that dominate the North and Center of Sudan, since alcohol is both culturally and religiously prohibited among Arab Muslims. Other jobs, such as tea selling and street vending tend also to be occupied by women from marginalised groups. A study by Dr. Hassan Abdelati estimated that 88.6 percent of tea sellers are migrants and internally displaced persons from marginalised regions of Sudan, and therefore more likely to be pushed to take the risks these jobs involve. Among the risks they face are considerable threats from the criminal justice system, both in cases of legal work such as tea selling and street vending, and illegal work such as alcohol selling and sex work.

Alcohol selling has long been a particularly risky line of business for many women, since it was entirely prohibited under Sudanese law and subject to imprisonment, lashing and fines. The recent changes to the Criminal Act have made it permissible for non-Muslims to buy and sell alcohol to other non-Muslims.(153) However these changes are still unlikely to dramatically reduce the threat of criminal charges for most alcohol sellers. This is because it puts the onus on alcohol sellers to distinguish between Muslims and nonMuslims, an identifier that is not written on ID cards and which itself leads to problems of religious discrimination.(154) The amendment further gives police additional reason to inquire and potentially discriminate against individuals based on their perceived 153- The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom) July 12, 2020.

154- SIHA Network, ‘A Collaborative Civil Society Statement in Response to The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom) – Exposing a wolf in sheep’s clothing’ (12 August 2020) https://sihanet. org/a-collaborative-civil-society-statement-in-response-to-the-law-of-various-amendments-abolishing-and-amending-provisions-restricting-freedom-exposing-a-wolf-in-sheeps-clot/

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religious affiliation.(155) The number of alcohol sellers shows that alcohol is widely consumed within Khartoum, and alcohol sellers report that the buyers are predominantly men from “Arab” ethnicities.

However, the illegality means that alcohol makers and sellers are forced to operate in secret and at great risk to themselves.

“The police come every time and make ambush and bring me to the court and sentence me to fines of about 4-5,000 pounds. This is the ordinary ambush. Sometimes they come personally [not officially organised by the police station] and ask for money. If I don’t give it to them they take me to court.”

South Sudanese Alcohol Seller, 16, July 2019(156) These ambushes occur multiple times a week and require sellers to be constantly vigilant. The fines requested by the police are often more than those mandated by courts, suggesting that police likely take a significant cut for themselves. However the length and discomfort of the court process mean that it is usually preferable to pay the fine upfront if possible.

Another alcohol seller interviewed told SIHA that she had been arrested many times.

Her children had also been harassed by police during the raids. This is often a risk for alcohol makers who work from or near their homes.

“I was beaten by policeman in the jail. Some forces from the police attacked us and took our smart phones. They beat our sons and harassed our daughters. If policemen arrest you when you have wine, they say pay us some money in order to be free and not be brought before the judge. If you pay them they let you go free, if not then you are taken to the court.” – South Sudanese Alcohol Seller, 32, July 2019(157) “I have had around 50 cases [with police], about 10 times a year. I was once treated very badly and called a ‘Southern Servant.’ The police searched the house. I have also been arrested in the past. The police are friendly when you pay them money… We who live here face a lot of trouble from police. They come to us every day and ask us to pay them.

Even if there’s no police raid they come individually.” South Sudanese Alcohol Seller, 46, July 2019(158) Tea sellers face some similar risks, despite being a legal operation that provides a key service for all residents of Khartoum – including the police. Awadia, the founder of the tea seller’s union in Khartoum, told SIHA about the way in which this legal line of work is criminalised: “There is an unwritten policy of the state to prohibit women from working on the street.

155- Ibid.

156- Interview 020.

157- Interview 018.

158- Interview 027.

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Instead they charge us with petty crimes such as not holding a health card, not having proper approval from the council, pouring out water in the street etc. Arrest them and take away their equipment. Tea sellers also suffer from harassment from courts, where they are sometimes told to stay at home if they don’t want to face arrest. We tell them that we come from a community in which we need to work to live.”(159) All tea sellers interviewed by SIHA spoke about the frequent raids, in which police would come and confiscate their equipment, or fine them for a variety of issues such as selling tea in the wrong place or at the wrong time. Even tea-sellers who do everything they can to abide by the many rules are likely to face issues, since it is often their word against that of the police.

.

“The police used to come to raid almost every day and we have to run. We run because if we are caught then we will be arrested and made to pay a fine...

Once they caught me and took me to the station. They came at around 9pm and kept me in the back of the police van until 1am. Then they reported that I had been selling tea after hours. They came on purpose at 9pm because they knew that it was rush hour then for tea sellers.”

Tea Seller, Omdurman Cases like these demonstrate that tea sellers are very wary of police and see the police operations against them as primarily a money making scheme.

Similarly, street vendors also sit in the uncomfortable space of carrying out work that is both legal on paper and necessary for Khartoum’s infrastructure, yet often criminalised by the state in practice. Street vendors report being beaten by police and subject to arrest.

Some were never even told what the accusation against them was.(160)

“I have [had] about 24 run-ins with the police in a year. I am treated badly and treated differently. I feel singled out among tea sellers because of my ethnicity. In September 2018 at Souq al-Arabi they raided me and took my work tools.”

Darfuri Street Vendor, Khartoum, July 2019(161) Sex workers, on the other hand, often face very different risks in Khartoum. Although sex work is officially illegal, the close relationships of some sex workers with officials within the security apparatus may keep them out of the usual cycle of raids and ambushes.

However this is not true for all sex workers. One police officer interviewed noted that raids and fines depend on the neighbourhood in which the sex workers operate. Those operating in Ombudda, for example, an area on the outskirts of Khartoum and populated primarily by marginalised groups from the Nuba Mountains, Blue Nile and Darfur, are far more likely to be subject to police surveillance and raids than those sex workers working in the centre of town. A sex worker who lives in the al-Kalakla area, another neighbourhood home to many from marginalised populations, stated that her place of work is subject to police raids about twice a month(162) 159- Interview 054.

160- Interview 025.

161- Interview 030.

162- Interview 018.

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.

“I have had three encounters with police in 2018. They were very bad and they treated me differently because I am a sex worker. Every one of the police wanted to have a sex with me.” – Sex Worker, 25, Khartoum, July 2019(163) Sex workers in Khartoum are vulnerable to physical and sexual abuse, including at the hands of the police who “protect” them from criminal repercussions for their work.

After the July 2020 amendments to the criminal code by the Justice Department of the transitional government, the amendment to Article 79 of the Criminal Code, which previously criminalised dealing in alcohol by .................................................................. buying, selling and manufacturing for a Muslim The conditions of the women’s person, and now criminalises the non-Muslim prison continue to worsen dealing with a Muslim by buying and selling.(164) during the transnational This has allowed and further legitimised the torture government era exceeding and rampant detention of women alcohol brewers the previous NCP era due to across Sudan. The conditions of the women’s deregulation and conflicting prison continue to worsen during the transnational ideologies within Sudan’s government era exceeding the previous NCP era justice and law enforcement due to deregulation and conflicting ideologies institutions and the severe within Sudan’s justice and law enforcement economic crises. . institutions and the severe economic crises. ..................................................................

163- Interview 023.

164- Ayin Network, “Sudanese law amendments, more talk less action” https://3ayin.com/en/legal-reform/ (last accessed April 16, 2021).

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Institutional Discrimination The analysis above shows how the criminal justice system engages in active discrimination against certain groups of Khartoum’s residents. However, the criminal justice system also discriminates internally, and thereby contributes to broad structures of inequality in Sudan.

Lawyers Most lawyers interviewed by SIHA agreed that the majority of lawyers in Khartoum are from North and Central “Arab” tribes, but that there were very large contingents of lawyers from marginalised ethnicities and regions – particularly Darfur and the Nuba Mountains. There are very few lawyers from Eastern Sudan, which some interviewees chalked up to cultural differences that made law a less likely career route for individuals from those regions.(165) Legal organisations exist for Christian lawyers, as well as lawyers from Darfur and the Nuba Mountains. One lawyer interviewed noted that while there is diversity in the pool of lawyers in Khartoum in general, most high profile lawyers were still from North and Central Sudan.(166) Legal aid is available in Khartoum, but it is insufficient to the demand and difficult to access for many who may not have heard about its availability. Some refugees such as Eritrean and Ethiopian refugees registered with the UNHCR may be more likely to receive aid, however many refugees have difficulty too.(167)

Judges The composition of the judicial field is less diverse than that of lawyers, with almost all judges being Muslim and coming from Northern and Central tribes. Most interviewees mentioned that there are some judges who do not fit this description, but that in those cases the judges will be clearly affiliated with the NCP regime. This is because the NCP regime carried out an overhaul of the judicial benches in 1990, firing any judges who were seen as not fitting the requirements of upholding an Arab, Muslim state in Sudan.

Police The gender ratio within the police force is said to be fairly equal, although there are differences within the types of jobs that are given to male and female police.(168) The majority of the police force is made up of lower ranked police from marginalised regions of Sudan. At first glance, this seems counter-intuitive since the racism and discrimination enacted by the police usually hits those from the same backgrounds as the majority of 165- Interview 047.

166- Interview 047.

167- Consultation Interview Eritrean 1.

168- Police interview 1.

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the police themselves. However, one officer explained that police go through intensive training that he described as “brainwashing.”(169) Further, although low ranking police are primarily from “African” ethnicities and marginalised areas, officers are almost always from “Arab” tribes from the North and Center. Any applications for promotion must include specification of the applicant’s tribe, and those from non-Arab tribes are unlikely to be selected.(170) After the Comprehensive Peace Agreement (CPA) in 2005, a lot of the police from marginalised areas were moved out of the offices and onto the streets, so that they would not have access to any confidential information such as police strategy papers and criminal records. This is because they were presumed to be allied with anti-regime groups such as the SPLA/M. Many police from marginalised areas were also sent to areas of conflict in times of violence, whereas police from “Arab” tribes would stay in the offices during these times.(171)

Reform or Revolution There have been numerous attempts to reform the Sudanese legal system since 1956.

However, many of these efforts have failed, often because the movements have themselves replicated some of the structures that they set out to dismantle. The Interim National Constitution, for example, created in 2005 was a direct response to the long-standing conflict between the government and the SPLM/A, and a major and widely celebrated reform effort. However, the power dynamics of groups tasked with creating and executing the new constitution reflected those of the administration at the time, which as we have seen, was characterized by a concentration of power in the hands of a small group of elite “Arab” men associated with Omar al-Bashir and the military. The processes through which the new measures were to be executed also followed this model and was “neither transparent nor participatory.”

Similarly, many protest movements prior to 2019 saw significant successes, but failed to fully address the structural issues that lead to inequality and discrimination in Sudan.

This was true in early movements such as those in 1964 and 1975 in which predominantly middle class and urban populations came together to overthrow the governments at the time.

Movements in marginalised areas of Sudan by groups such as the SPLM/A in Nuba Mountains have been clear about the stakes for decades. The protests in Khartoum have shown the widespread dissatisfaction with the status quo that has catered to such a small slice of Sudan’s diverse population.(172) Protests in 2013 and 2019 each ostensibly began because of economic concerns – rising fuel prices in 2013 and rising fuel and bread 169- Police interview 2.

170- Police interview 2.

171- Police interview 1.

172- Muhammad Osman, “Inequality and injustice the legacy of Sudan’s September protests” (September 27 2013) https:// www.theguardian.com/world/2014/sep/26/sudan-omar-al-bashir-september-protests (accessed June 23, 2020).

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prices in 2019 –2020, but soon made clear that far more fundamental concerns about the structure of Sudanese society were at play. The Sudan Juba peace agreement failed to meet the expectations of the majority of the Sudanese people living in conflict areas. The agreement was dominated and widely influenced by appeasing power sharing interests, rather than emphasizing the root causes of armed conflict. The most influential faction of armed groups the SPLM in Nuba Mountains has openly resented being part of the latest Juba process because they see it as a superficial process that does not address the root causes of armed conflict in Sudan. Al Helu the chairperson of the SPLM North in Nuba continues to stress the necessity of a secular state structure, which includes laws and policies that are free of religious bias, as a precondition to productive peace negotiations. Sudan’s transitional government continues to demonstrate reluctance towards secularizing the laws and policies of the country, especially those that relate to women’s rights and the practice of torture and corporal punishment.

However, more discussion is needed about the ways in which hierarchies along gender, ethnicity and other forms of proximity to power are replicated within revolutionary movements. The 2019 protests have been lauded as an example of these hierarchies being directly challenged, yet concerns still remain about many of these dynamics. Women’s participation and leadership of the movement, for example, has been widely celebrated.

This leadership did open space for public debate about many “women’s issues” such as sexual harassment, women’s rights and gender equality, and has shone a light on women’s contributions to Sudanese society more generally. Yet, as we have seen, many of the legal restrictions on women remain in place, and women still have to push for increased access to top-level decision-making processes. Women in Sudan were still subjected to sexual harassment at the sit-ins and at protests, and continued to have to fight to ensure that their concerns were not dismissed despite their numbers. Similarly, questions about ethnic and racial inequalities were sometimes pushed to the side during the peak of the protests, despite accounts that suggest that protestors from marginalised ethnicities were systematically subject to worse treatment than others.

The Amendments of July 13, 2020 by the transitional government published a set of legal amendments called (The Law of Various Amendments (Abolishing and Amending Provisions Restricting Freedom). The law included amendments to a number of articles of the Criminal Law of 1991, the Criminal Procedure Law, the Law on Political Parties, National Security Law, Traffic Law, Passports and Immigration Law, and Public Prosecution.

While the amendments have been marketed as a significant legal reform openly discriminatory codes and further acts of torture were endorsed within the amendments.

For example the amendment of Article 79 of the Criminal Code criminalises dealing in alcohol including buying, selling and manufacturing for any Muslim person. The amended article also criminalises the non-Muslim who buys from or sells alcohol to a Muslim. This amendment includes discrimination on the basis of religion and does not recognize equality on the basis of citizenship as a principle of interaction between citizens in the state. This leads to a number of practical dilemmas in applying the text of the article.

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The seller of local alcohol cannot distinguish between a Muslim and a non-Muslim, because the religion is not recorded in the identity card, and therefore a person may find himself committing the crime of unintentionally dealing in alcohol. When a person is brought to trial under penalty of the crime of dealing in alcohol, there is also no way to verify their innocence or conviction except by verifying their religion, and this procedure violates the accused’s freedom of belief and represents a flagrant violation of personal freedom by forcing the person to show their belief and using this belief as evidence for his crime. This amendment may also pave the way for the policeman and the judge to use the appearance of the accused as a criterion for determining their religion, and thus may pave the way for a new wave of racism and discrimination between citizens.

Internal structural concerns will also require more than reform. The most radical and transformative ideas put forward by the 2019 revolutionary movement called for a total overhaul of Sudanese society, and of Sudanese politics. They understood that issues of ingrained patriarchy, militarisation and Sudan’s “identity crisis” are connected, and can only be tackled by fundamentally changing the balance of power between Sudan’s citizens and its elite governing classes, opening up the political space and providing the resources needed to ensure that all citizens have real access to decision making processes. These fundamental changes are still unrealised.

As of 2021, the transitional government has failed to create a democratic platform for debates and consultation. The Government which was supposed to be recruiting a legislative council as a core element of the transition could not attain that, and therefore decision-making in relation to law reform became largely dependent on the approval of the Forces for Freedom and Change (FFC), which represents the coalition of political parties and Sudanese military and police elites who are mostly former Bashir and NIF allies, including The Rapid Support Forces (RSF) and the paramilitary forces, which were operated and founded by Bashir. The military has also suspended the constitutional court which presents one of the most effective advocacy tools for law reform.

As a result, Sudanese people, activists, grassroots groups, civil society currently have no clear path to engage in consultations on law reform, despite the attempts of many groups to open the doors of dialogue. This dilemma comes as one of the main flaws in the constitutional document that was based on the formula of the current transitional government made, which deliberately ignored the provision of community consultation.

The “criminal justice” system is one of the primary mechanisms through which a state can enact violence on its people.

This report has shown how problems that pervade the Sudanese state structure and its society affect the lives of Sudan’s most marginalised populations through Sudan’s criminal laws, policing, and judicial system that all operate to protect the interests of smaller group. Any attempts to reform this system in ways that do not simply replicate underlying structural injustices will therefore have to keep in mind the truly revolutionary ideas that have been fought for time and again in the country’s history. For now, Sudan’s revolution is far from over.

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Concluding Remarks The normalization of discrimination based on ethnicity, gender and religion has taken a toll on peace, stability and unity in the country. For Sudan to attain peace and stability, the Sudanese government must acknowledge and apologize for this lengthy history of discrimination and inequality, and it must review and reform its policies and legal framework to dismantle the structural discrimination that is built into institutions across the country. This reform should include an extended overhaul of the system of governance, to establish a new system that observes and respects all citizens and residents.

To this end, the Sudanese government should establish mechanisms that will review and reform policies and laws to address the discrimination that has long been embedded within law, governance, law enforcement, media, the educational system, civil society and the private sector in Sudan. This will require the transitional government to invest financially in rebuilding the rule of law institutions on anti-discrimination ground and extend support to the teams working in conflict and post conflict areas.

Sudan’s justice system and law enforcement institutions must fundamentally be reformed as part of the country’s endeavours to reach peace and stability. Furthermore, training programs will need to be implemented alongside legal, structural and institutional reform and affirmative action measures, as undertaking the training on its own will not lead to any change. These trainings will need to be extensive and must incorporate sensitivity and awareness regarding ethnic- and gender-based discrimination.

It is important that hate speech and hate crimes are recognized as criminal acts within the new laws and policies. National labour laws should require that Sudan’s public and private sector employers, trade unions, and professional associations have antidiscrimination, anti-hate speech and anti-misogyny bylaws and policies to be shared and promoted among their staff.

It is imperative that the Sudanese government embark on the process of reform immediately. The government should demonstrate and reflect on respect for the country’s diversity and the political, cultural and economic rights of all Sudanese people.

Considering Sudan’s history and current challenges in relation to the cycles of armed conflicts, tribalism and inequalities leading insecurity and instability, Sudan should start working on developing an anti-discrimination legislation immediately.

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Tracing the Roots of Discrimination within Sudanese Law

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