African Centre for Justice and Peace Studies ACJPS | المركز الافريقي لدراسات العدالة و السلام
Harmonizing the NSA in line with the 2019 Constitutional Charter will ensure legal clarity on the roles, obligations and accountability by the NISS
(31 January 2020) African Centre for Justice and Peace Studies (ACJPS) calls on the Transitional government to urgently amend the National Security Act (NSA) 2010 and ensure legislative and Institutional reform of the National Intelligence Social Security (NISS) to bring its operations into line with the 2019 Constitutional Charter, Regional and International human rights obligations of Sudan and, ensure accountability.
We urge the Transitional government to repeal Sections of the NSA 2010 that provide immunity from prosecution to NISS officers and end decades of impunity for human rights violations that occurred in former regime. The Transitional government has taken positive steps towards accountability by establishing different investigative committees to investigate human rights violations and heinous crimes committed during al-Bashir’s 30 years of dictatorship but the blanket immunity granted to NISS and other security agencies might prevent effective investigation and prosecution of key perpetrators if the law is not reformed.
The Transitional government must also ensure that the mandate and powers of the NISS provided in the NSA are harmonized in line with provisions of the 2019 Constitutional Charter. The amendment must ensure that the NISS have a clear mandate limited to information gathering, analyzing and submitting to competent bodies as stated under Chapter 11 of the 2019 Constitutional Charter. Any other powers including arrest, search and detention among others must be repealed.
Further, mechanisms must be put in place by the Transitional government to ensure that the NISS perform their Constitutional mandate in accordance with the National laws and, Regional and International treaties signed by Sudan. Intelligence and Information gathering must be checked to ensure it does not infringe privacy rights and other rights at risk due to surveillance.
The NSA 2010, passed in December 2009, goes against the vision in the 2005 Comprehensive Peace Agreement (CPA) and contradicts provisions of the 2019 Constitutional Charter of the NISS as a security agency mandated with “information gathering, analysis and advice to appropriate authorities” by maintaining the extensive powers granted to NISS agents under the National Security Forces Act 1999.
These powers are incompatible with human rights standards and rule of law and, have been widely used by NISS officers to violate human rights in Sudan especially while suppressing political dissents. Some of these powers include; extensive powers of the NISS to arrest and detain for up to four and a half months, as well as to search and seize. This long period of detention, usually incommunicado without judicial oversight has enabled NISS agents to commit gross human rights violations such as torture and other ill-treatment against detainees to extract “confessions” under duress.
In the recent anti-government peaceful protests that led to the ouster of former President Omar al Bashir on 11 April 2019, hundreds of peaceful protesters including human rights defenders, lawyers, opposition party leaders and students were detained incommunicado by the NISS without charge for up to 4 months. In January 2020, ACJPS documented testimonies of detainees subjected to torture by NISS officers while in custody using water horses, sticks, rape threats among others until their release on 12 April 2019. Many detainees had their phones, social media and email accounts hacked into by the NISS officers.
The NSA 2010 also maintains the immunity of NISS agents from prosecution and disciplinary action for all acts committed in the course of their work. Although such immunities can be waived by the NISS Director, in practice it creates a climate of impunity. Even in cases where the immunities have been lifted, victims have faced various barriers that make it extremely difficult to report cases of human rights violations. The African Commission on human and People’s Rights found in case 379/09 against Sudan that remedies are not available to people tortured by the NISS because the power to lift immunities is at the discretion of the director of the NISS and is not subject to judicial oversight. There have been no cases to suggest that such immunities are waived in practice.
Therefore, in this transitional period, it is important that the Transitional government ends the legacy of human rights violations and impunity manifested by the NISS in the former regime through substantive changes in Sudan’s NSA 2010 and practices by various security agencies.
To end arbitrary arrests, secret detention, torture, and deaths in custody, ACJPS calls on the Transitional government to;
- Limit and clearly define the powers of NISS to EXCLUDE any law enforcement obligations or activities. The NISS must not have any powers to arrest, detain, search or seize.
- Remove blanket immunity granted to NISS and other security agencies.
- Establish an independent oversight body and complaints mechanism to enhance transparency and accountability of the services.
- Ensure that all former NISS officers that have been retired are disarmed to avoid a repeat of the recent incident that left people wounded after a munity by retired NISS officers of the operational unit in Khartoum. The government must provide treatment and rehabilitate all those wounded in the incident.
- Draw a plan and timeline for re-integrating retired NISS officers into the community.
- Relocate bases for security agencies away from residential areas.
Background
In 2005, the CPA was signed, ending the war between north and south Sudan. A pillar of the CPA is a vision of Sudan’s NISS as an intelligence gathering and advisory agency. After several calls by local and international actors for the reform of the 1999 National Security Act, in 2009 the National Assembly passed a new NSA, which came into force in February 2010. However, the NSA 2010 maintains the NISS’ extensive powers of arrest, detention and immunity from prosecution and disciplinary action that were given to it under the earlier Act. As a result, arbitrary arrests, torture, enforced disappearances, and extrajudicial executions are still used to silence dissent.
Despite the establishment of a new Constitutional Charter in August 2019 that limits the mandate of the NISS to information gathering and analysis, the NSA 2010 remains faithful to the former regime’s vision of a national security force whose function is to maintain it in power and the NISS have retained the core functions it had in the first years following the 1989 coup. Without substantive changes in Sudan’s national security laws and practices, the situation of human rights will not improve. As long as the NSA 2010 continues to grant immunity and powers of arrest to the NISS, there is no hope of an end to arbitrary arrests, secret detention, torture, and deaths in custody.
Contact:
Mossaad Mohamed Ali, Executive Director, African Centre for Justice and Peace Studies ACJPS. (English, Arabic, Swedish): +46727712782
