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Sudan’s unlawful state of emergency

President Omar al-Bashir declared a year-long state of emergency as protesters in Sudan continue to demand change.

On Feb. 22, Sudan’s embattled president, Omar al-Bashir, declared a one-year, nationwide state of emergency. He subsequently issued five decrees to implement the declaration that collectively curtail fundamental rights to a degree that is unprecedented in the post-independence history of Sudan.

The state of emergency came during peaceful protests — started by the Sudanese people late last year, which now pose a credible threat to the 30-year rule of Bashir’s National Congress Party. Bashir, already wanted by the International Criminal Court (ICC) for atrocities against his own people, clearly recognizes the precariousness of his position following his government’s conspicuous failure to stem the protests through use of excessive force.

The true objective of Bashir’s declaration of a state of emergency appears to be stopping the protests that are in their fourth month. The government’s argument — that the declaration aims to address the economic crisis of the country — is belied by the targeting of fundamental rights being exercised by the protesters, including their right to peaceful assembly, gatherings, processions and labor strikes. Moreover, the establishment of emergency prosecution offices and courts violate the right to a fair trial, which is guaranteed under international law and the Sudanese constitution.

What is a state of emergency?

A declaration of emergency entails a partial breakdown of the constitutional order; for the period of the emergency, the protection of certain rights can be suspended. Both national constitutions and international law place strict conditions on the invocation of such extraordinary measures.

Legally, there must be an official proclamation identifying a situation that “threatens the life of the nation.” No doubt, Bashir and the National Congress Party feel they are under threat. Decrees restricting basic rights of gathering and assembly, prohibiting strikes, symposiums, discussion gatherings, events, and any similar activities without permission, speak to the real targets of the emergency measures. But under the 2005 Sudanese constitution, the outbreak of peaceful protests, even if they implicitly or explicitly aim to topple the government, is not one of the grounds for declaring a state of emergency.

Bashir’s newly appointed vice president and minister for defense, who is under U.S. sanctions, has said that the emergency declaration is justified by the economic crisis facing the country and caused by smuggling activities. But while one of the implementing decrees prohibits dealing in foreign currency and gold, and seeks to crack down on the black market for fuel and flour, the remainder of the decrees go far beyond the economic realm. Moreover, the economic deterioration has been ongoing — for over three years — with no serious measures taken to address it.

This state of emergency violates Sudan’s constitution and international law

Even in a true emergency, certain non-derogable rights must still be upheld, and all other rights can only be infringed upon “to the extent strictly required by the exigencies of the situation.” Here again, Sudan’s state of emergency does not withstand scrutiny.

One of the decrees gives Sudan’s security forces the right to search any building, restrict the movement of people, arrest people suspected of committing a violation related to the state of emergency and seize assets or property during investigations. These sweeping provisions are not the kind of narrowly tailored measures required by international law. Moreover, those arrested by the security forces are routinely subject to torture, inhumane and degrading treatment — violations of non-derogable rights by any international standard.

The formal punishment for violating the decree includes imprisonment for up to 10 years. This is in addition to any penalty provided for in any other laws. The penalties found in other laws, such as the Sudanese criminal code, can be very severe. For example, under the 1991 criminal code, the punishment for undermining the constitutional order, a crime against the state, can amount to the death penalty.

Another of the decrees orders the attorney general to establish emergency prosecution bureaus, orders the chief justice to establish emergency courts, and authorizes each of them to issue the rules that will apply to defendants put through these systems. This is a far cry from international fair trial standards of a “competent, independent and impartial tribunal.” Under article 211(a) of Sudan’s constitution, a fair trial is a non-derogable right. And although article 4(2) of the international covenant on civil and political rights, which speaks to the derogation of rights in an emergency, does not explicitly list a fair trial as a non-derogable right, the U.N. Human Rights Committee in general comment No. 29(11) has stated that the right to a fair trial falls within this category.

Can an emergency quell the protests?

In the face of President Bashir’s declaration of emergency, the protests in Sudan continued unabated. Protesters stayed on the streets the night that he announced the declaration and have continued to their public demonstrations ever since. The protesters repeatedly call for freedom, peace, and justice. They chant that “revolution is the choice of the people.”

Additional measures taken by Bashir include dissolving the national and state governments, appointing military and security officers as governors, and delegating his powers as chairman of the National Congress Party to Ahmed Harun, a man also under U.S. government sanctions and wanted by the ICC for his leading role in the Darfur atrocities.

By placing military officials in leadership positions across the nation Bashir has, together with the state of emergency, effectively put the country under military rule. And neither this, nor his decision to hand the leadership of his party to another ICC indictee, will diminish the strength of the protesters’ rallying cry. For them, this unlawful declaration is just the latest manifestation of the very problem they seek to address. They have only one demand, which is the fall of the regime.

Nasredeen Abdulbari is a doctoral researcher at the Georgetown University Law Center. He was a lecturer in the International and Comparative Law Department, University of Khartoum, as well as a Stoffel Scholar and a Satter Fellow at Harvard Law School.

Rebecca Hamilton is an Assistant Professor at American University, Washington College of Law, where she teaches international law and national security. She is the author ofFighting for Darfur: Public Action and the Struggle to Stop Genocide.”