African Centre for Justice and Peace Studies ACJPS | المركز الافريقي لدراسات العدالة و السلام
Written by Catherine Komuhangi. Catherine is a human rights lawyer and works as a legal program officer at ACJPS.
Sudan is currently conducting a national dialogue that has, among other things, discussed the amendment of the powers of the National Security and Intelligence Service (NISS). Article 151 (3) of the 2005 Interim National Constitution (INC), mandates NISS to among other things, “focus on information gathering, analysis and advice to the appropriate authorities”. NISS is also governed by the 2010 National Security Act (NSA) that empowers officials to detain individuals without a warrant; no charges proffered against them; for up to four and a half months without judicial review. The proposed amendment, if approved, would ensure that NISS’s powers are strictly aligned to its Constitutional mandate and ensure that detentions are carried out only after a warrant has been issued. Some high level officials, including Deputy Chief Justice Abdel-Mageed Idriss, have publicly rejected this proposed amendment. Justice Idriss argued that NISS’s role would be useless if it were reduced to simply collecting information.
However, the wide powers exercised by NISS contravene Sudan’s domestic and international human rights obligations. They contravene various rights such as the right to liberty as individuals are never informed of the reasons of their arrest and are hardly ever brought promptly before a judge. The detentions are further marred by the fact detainees face a risk of torture, cruel, inhuman and degrading treatment by NISS in an effort to obtain confessions that form the basis of charges later issued; detainees are kept in poor conditions; and are rarely provided access to medical attention. In some cases, individuals are released after being held for long periods due to insufficient evidence. These individuals may have lost their jobs due to the long periods of detention and are not compensated for the unlawful detention.
Additionally, in practice, the wide powers exercised by NISS are mainly used to intimidate political opponents, human rights activists and defenders and individuals exercising their civil and political rights such as the right to freedom of expression, association and assembly. The African Centre for Justice and Peace Studies (ACJPS) has documented such various incidents. Recently, Dr. Ibrahim Mudwai, a human rights defender, was detained by NISS on 7th December 2016 without an arrest warrant. His family was only informed of his detention a week after his arrest. He has been held in NISS detention for three months and three weeks without charge or being presented before a judge. The Attorney General in Khartoum issued an order for Dr. Mudawi’s release on 28th March 2017 but there are currently no reports of his release.
On 31st October 2016, fourteen doctors were detained by NISS for participating in a strike condemning poor pay, poor working conditions and inadequate funding for medical equipment. The doctors were detained incommunicado without charge and denied access to their lawyers. The doctors were released with no charges against them on, 22nd November 2016. Additionally, in November 2016, seventeen members of the Sudanese Congress Party, an opposition group, were detained by NISS for publicly calling for peaceful demonstrations against austerity measures announced by the government of Sudan. They were later released in December 2016 with no charges against them.
It is therefore, imperative that Sudan amends all NISS laws to ensure that they are in line with their original mandate under the 2005 INC to information gathering, analysis and advising appropriate authorities. Additionally, any laws empowering NISS with detention powers should adhere to procedural safeguards i.e. only carried out pursuant to a warrant; if a warrant is issued, individuals are provided access to their lawyers and families; and individuals are presented before a judicial officer within 48 hours of arrest. Lastly, the government of Sudan should scrap immunities for NISS officials; put in place disciplinary measures for officials that order and detain individuals without warrants; and endeavour to provide compensation to victims of unlawful detention.
