First published by Chr. Michelsen Institute's Sudan blog.
The end of Al Bashir’s dictatorship of three decades in Sudan is nearing its first anniversary. When the toppled President was arrested, $351 thousand, €6,7 million, £5.2 million, and SDG 5 billion packed in sacks designed for maize were seized and in December 2019 Al Bashir was charged with two years house arrest for corruption. The International Criminal Court awaits his extradition, to which the interim rulers are committed, to stand trial in The Hague for genocide, war crimes and crimes against humanity during the Darfur conflict.
Considering the national and international pressure and scrutiny the interim government finds itself under, this was the least it could do. These first steps to bring justice to the conflict-ridden country are pointing in the right direction, but more steps, endurance and commitment will be needed to establish legal mechanisms and institutional practices to bring down corruption and recover stolen assets. It will be a marathon, not a sprint.
The Bashir regime has left the country with deeply entrenched corruption, which many analysists agree was integral part of a system of oppression, lacking fundamental checks and balances. In Transparency International’s 2019 Corruption Perceptions Index Sudan shares an infamous 173rd rank (out of 180) with Equatorial Guinea.
Unfortunately, inspiring examples of war-torn and corruption infested countries successfully bringing corruption under control are difficult to come by. If anything, there are many examples of witch-hunts going after an old regime while a new regime picks up on the same types of misconduct, anti-corruption goals being subdued to security and other political goals, and of window-dressing the new regime with a plethora of new institutions, commissions and task forces that attract foreign support, but might soon be preoccupied in turf war rather than fighting corruption.
The rule of law institutions that are left in states emerging from violent conflicts are often seen as part of the problem and not the solution, as they suffer from endemic corruption and are often predatory in nature. This was observed at a recent United Nations workshop on anti-corruption challenges in UN peace operations in the justice sector.
The challenge is to draw the line between what and who can be part of a new beginning and to build if not consensus, at least respect for this line. In the following, I will point out some key questions and international lessons learnt that might be useful for reformers in Sudan to consider when mapping out the way forward. They are in no particular order, hence bullet-pointed and not numbered, and very much interconnected.
- Set priorities with tangible targets
What can realistically be achieved during the transitional period until the end of 2022 when a democratically elected government is planned to take over? The draft constitutional charter sets out broad goals, reducing corruption and recovering assets being just two of many important goals. Keeping in mind limited financial and human resources, what is it specifically that should be prioritised to reduce corruption (including what type of corruption)? Should going after Al Bashir’s assets be a priority (something that can take years) and/ or striving to rid basic health services of corrupt practices?
Under Al Bashir, Sudan ratified the United Nations Convention Against Corruption (UNCAC) and the African Union Convention on Preventing and Combating Corruption, though little of it has been translated into national legislation or practice to date. While these international and regional standards cannot replace a national and local discussion of what should be prioritised in Sudan’s action against corruption, they can provide useful guidance and bench-marking.
The UNCAC peer review of Sudan’s implementation of Chapter II (prevention) and Chapter V (asset recovery) is overdue. The peer review to be conducted by Tunisia and Austria could provide important evidence as to the status quo in Sudan’s legislation and implementation, especially for the planned Anti-Corruption and Public Funds Recovery Commission. Chapter 12 or the Constitutional Charter for the 2019 Transitional Period stipulates the establishment of such a commission. Bundling resources in a specialised commission is a common feature of many anti-corruption regimes, but this approach has yet to succeed in any post-conflict setting. In fragile settings, experience has shown that a clear and focused mandate, and operational autonomy with adequate resources are particularly important. Too often broad mandates, too little resources (or ill-timed support) and political interference have rendered anti-corruption commissions ineffective. The Jakarta Statement on Principles for Anti-Corruption Authorities lines out key recommendations on the mandate, human resources, budget and accountability mechanisms for anti-corruption commissions; a commentary with examples is being developed by UNODC.
- Appoint people with integrity
To establish trust and confidence in the transitional arrangement, it is crucial to appoint people with a clean track record. This can be challenging in an environment of endemic corruption and particularly for senior justice sector positions that require experience. The Constitutional Charter for the 2019 Transitional Period stipulates that only “… figures with attested competence and integrity”, who “may not have held sovereign or constitutional positions during the period of rule from June 1998” may be selected to the new commissions. It also foresees the establishment of an independent Supreme Judicial Council that will select and appoint judges of the Supreme and Constitutional courts. Important details such as eligibility criteria, selection process, but also the process for removals need to be spelled out in laws.
In a few rare cases after regime change, where trust in existing justice sector institutions has been extremely low, sitting judges and other law enforcement personnel have been vetted both for integrity, but also expertise. In some cases, all sitting judges were screened to determine whether they had the integrity and capacity required for office. This is typically done by an independent committee adhering to clear criteria, sometimes even involving international experts, such as in Kenya after 2010. In other countries, such as Bosnia and Herzegovina, a competitive reappointment process required everyone in the judiciary to reapply for their positions, competing with external applicants.
Whatever the process is to appoint or reappoint those who guard the law, the process should be spelled out clearly and be as transparent as possible. In situations with a very low level of trust in state officials, it might make sense to involve civil society organisations, perhaps even open up positions to applications from ‘outsiders’ such as academics, other practitioners of law, accountants – depending on the required expertise. Even international secondments from a similar cultural and legal context could be considered. Sudan is lucky to have many highly qualified professionals working abroad, willing to return and help rebuild the country.
- Manage expectations
Whatever is decided and prioritised needs to be communicated well to the public. Expectations are typically very high, particularly when specialised institutions such as an anti-corruption commission are set up. For example, the Constitutional Charter explicitly states that there will be no statute of limitations for crimes conducted during the Al Bashir regime. This could potentially overburden a commission and keep it from investigating more recent and ongoing cases. It might be necessary to agree on some criteria, i.e. to only go after cases of a certain magnitude, and communicate the rationale well to the public. This includes international donors, who unfortunately are too often part of an impatient public, keen on so called “quick wins”. Nonetheless, celebrating certain milestones reached early on will help garner the public support needed for the long run to bring down corruption.
In the midst of an economic crisis, the pressures on the interim government are many, and it may be tempting to delay judicial and other non-economy related reforms. But in times of scarcity, it is even more important to ensure that what is there is shared fairly and that funding for basic public services does not end up in private pockets. While addressing the abuse of the past is important, so is preventive action.