Reading the Responses to the AUPD Report
Most political figures and commentators, Sudanese and international, made up their minds about the AU Panel on Darfur report before they had seen the contents of the report. Many were then struck silent when the report was actually released. Some have had the grace to admit that they were surprised by how substantive and principled the report has proved to be. Others are still pondering their responses. One category of people is, however, disturbed by the report””those who want to continue with business as usual.
The AUPD report has challenged the Sudanese political forces, across the entire spectrum, to rise to their best analysis and strategy. Over the last few years, the politics of Darfur has been reduced to tactical posturing and grandstanding, without strategy or vision. Even those who disagree with the AUPD are obliged to concede that its comprehensive and rigorous nature requires a response that is equally thoughtful.
The Sudan Government has not made an official decision. Clearly, it has misgivings. The underlying message of the report is that Sudan is ruled by a minority elite, which must share power or face the demise of the country. That is an unwelcome message, and the responses of the Sudan Government to the report have been strategically silent on this, the central question in Sudanese political life.
The Sudan Government also does not like the fact that the AUPD proposal of a hybrid court means that accountability for gross violations of human rights must be taken seriously. It also does not like the politically realistic, and principled, position that the ICC is a fact of life and must be accepted as such. The AUPD could not dismantle the ICC or reverse the decisions of the prosecutor, even had it wished to do so. At the same time, the political reality is that the ICC arrest warrants can only be executed with the agreement of the Sudan Government, proceeding will be a Sudanese political decision. The Panel’s report says as much: if any global political agreement includes an item which is cooperating with the ICC, then that is the prerogative of the Sudanese people. Should an agreement be that there must be no cooperation, that is also their prerogative. A decision either way bears a political price.
Statements by Sudanese officials that they cannot accept the proposal of a hybrid court should not be taken at face value. Experience of negotiating with Khartoum is that red lines are rarely where they seem to be.
Many Darfurians have been surprised both by the seriousness of the Panel’s method and analysis, and the tough recommendations for what the Sudan Government needs to do to resolve the crisis. None among the rebels expected that the report would be so forthright. The basic analysis of “˜the Sudanese crisis in Darfur’ is not dissimilar from the critique of inequalities in power and wealth contained in the “˜Black Book’ and the SLM’s agenda of a New Sudan. Among the recommendations there are some that make the armed movements uncomfortable””for example the proposal that civil society, the pastoralists and the IDPs all be represented at peace talks””but if the rebel leaders reject the report on those grounds, they will face two sets of difficulties. First, these recommendations arose directly from the stakeholders’ own demands. Second, if they accept the basic analysis, criticizing the details is surely a mistake and a missed opportunity.
The more thoughtful members of the leadership of the armed movements are debating the AUPD report and recommendations. There is more substantive debate going on than in response to any other international analysis and proposals. An indication of this is the absence of public posturing.
The political parties and CSOs in Sudan, committed to an all-Sudan solution based on democratization and inclusive process, have been most welcoming of the AUPD report and recommendations, which they have endorsed enthusiastically. This represents the view of the majority of Sudanese.
Those who are most worried by the AUPD report and its recommendations are those who prefer to continue “˜business as usual’ in the hope that continuing to do things as they have been done in the recent past will yield results. Some Sudanese on both sides of the political divide have taken this approach, and one suspects that they are benefiting from the status quo, whether they reside in Khartoum or in European capitals. Among the internationals, the same is true. There is certainly reason to be forgiving to those who have tried but failed to make a dent on the formidably complicated problems of peace and protection in the last couple of years. It would be wrong to pass any harsh judgement on recent failures. Sadly, it is the nature of bureaucracy to prefer the comforts of routine, even if it entails almost sure failure, rather than to embrace the discomforts of exploring a breakthrough. The challenge is to use the AUPD report to leverage the kinds of progress that have been elusive for the last few years.
While its true that in the past, when Khartoum says no it is not always final, but this issue is different. The hybrid courts and changing laws means the government has to prosecute itself and their allies and effectively acknowledge the shortcomings of its judiciary. This will not happen and we have seen the strong language from Khartoum against that portion of the report.
At its best Khartoum will pretend to accept and try to negotiate with the AU to change the proposal to make it dysfunctional and ineffective. We have seen this in the past and when we see the kind of organization the AU is, then it is almost certain that this will be the scenario.
We need to be realistic Alex, I have seen very little interest among the Sudanese elite in the report. You will no longer find any mention of it in Suanese newspapers. It is almost as if that everyone moved past it. The report did not create kind of dynamics people hoped it to do.
The Mbeki report didn’t make a splash but it is having an interesting effect.
The report came at a big moment for news in Sudan. For the last two weeks the big story in the Sudanese newspapers has been the rift in the Govt of National Unity between the NCP and SPLM and the threat of secession. There is no bigger story in Sudan and just about every newspaper every day has been dominated by this. Story number two has been US policy and number three is the Mbeki Panel.
Thumbing through the papers this is what I find. On 25 October Sadiq al-Riziqi who is the owner of Al-Intibaha the most strident paper against the SPLA and the Darfurians, rejected the Panel and especially the hybrid courts proposal. Al-Riziqi is exceptionally well informed about the goings on in the inner circles but he has his own views too. For the ordinary citizens of Sudan, al-Riziqiâ€™s rejection is a good endorsement! But read the same paper three days later and we see a columnist hinting that if the procedures in the hybrid courts are correctly done then the NCP will accept.
This is pretty much the double line taken by other well-known columnists too. Ahmad Al-Sharif (Al-Watan) lambasts Mbekiâ€™s report as targeting national sovereignty and going beyond its mandate by putting into question the competence of the Sudanese judiciary. Kamil Idriss (formerly of the World Intellectual Property Organisation) in Al-Sudani, says that the idea of hybrid courts strike to the heart of the credibility of the Sudanese judiciary and is a humiliation. But read carefully what others are writing. One government spokesman, writing in Al-Ahdaf on 1 November, says that ICC Prosecutorâ€™s welcome of the Panelâ€™s proposal for hybrid courts should be bracketed: any mechanism set up in the wake of the AU decision will proceed without reference to the ICC. That is a way of setting the Mbeki recommendations apart from the joined-up three pillar process that the ICC is helping to set up in Kenya. In the Kenyan case, the ICC is joined at the hip to the hybrid courts and so also to the local courts, but this isnâ€™t the case for the Darfur proposal. And most interesting, the leading Islamist Tayib Zain Al-Abdeen, writing in Al-Sahafa on 2 November advised the NCP to accept the hybrid courts proposal, saying that its own failure to prosecute anybody gives it no credibility to object, and it also cannot accuse the African Union of being a colonial conspirator.
One of the best commentaries was done by Khalid al-Tijani, for Al-Sahafa. He put his finger on the governmentâ€™s basic dilemma. On the one hand, Khartoum cannot reject the Mbeki Report because any such action will threaten the cohesive African stance supporting Khartoumâ€™s position on the ICC, while on the other hand the acceptance of the report would equally conflict with the latterâ€™s principled rejection of the intervention of the ICC. This puts the front men for the government policy in an awkward situation and luckily the two men in question, Ghazi Salah Al-Din and Ali Osman Muhammed Taha are able to exercise self-restraint and avoid either outright acceptance or outright rejection, playing the game of watering down the recommendations in the implementation stage.
Read between the lines: the government is in a corner and canâ€™t get out easily.
Let us assume Khartoum does not implement what Mbeki asked or in his report, what will the AU do? I am trying to do a reality check here. We must remember that the AU you have so much faith in was the guarantor of the ailing Darfur Peace Agreement. Minnawi who is the DPA’s major signatory blamed the AU saying it is the one who failed to make sure that Khartoum live up to what it signed particularly in terms of remitting money to the Darfur fund.
The reason Sudan is so comfortable with the AU is that they believe they are easily manipulated and they never made that a secret.
To be extremely frank you are the only one I came across with so much enthusiasm about the AUPD report. I have seen statements by the SPLM and AbdelWahab Al-Afandi and others saying the proposals made on the hybrid courts are unrealistic and are only good on paper. For a starter, it takes a political will on the part of Khartoum and this is non-existent. Moreover it also requires an admittance of atrocities committed in Darfur by the government and that will never happen.
I sincerely wished I could share your optimism Alex but so far I see no reasons to. I will restate my position. The report has reached a dead end.
why do I remain optimistic about the AU Panel? Partly it’s optimism of the will–something has to come, and come soon, or Sudan as a whole is heading for a crisis of bigger proportions than anything seen recently. Time is very short and we need to make do with what is available now. There’s no time for another inquiry or commission or panel–by the time it reports the events it is concerned with will have happened. At the moment UNAMID is without a head, and the head of UNMIS is leaving in a couple of months, without even a deputy in post. At least something is happening in Doha and there is a chief mediator in place. In the international system it can take months to make a senior appointment (remember the 10-month hiatus after Jan Pronk was expelled? The 8 month gap between the Sirte talks failure and Bassole’s appointment?) So we have to make do with what we have–and three former heads of state with a pretty good grasp of the situation and a formidable convening power at an international level is a good place to start.
Which brings me to the second point. Most reports of this kind are just that–reports. The focus of the commissioners or panellists is on getting a text and getting a formal adoption. From the beginning, Thabo Mbeki has insisted that a report is valueless unless it is implemented. He is a political operator and a man who has headed party and state institutions and is used to getting things done. The report is an instrument, not an objective–like an iceberg, most of it is beneath the surface. And what I know about whatâ€™s beneath the surface is reason for (rather modest) optimism.
I share your (and everyone’s) concerns about the AU and its follow-up or implementation capacity. I was part of the Abuja mediation team and I well recall the discussions in the final days of the talks about the need to keep up the momentum, not let anything drop. I then found myself literally alone among the team in continuing to talk with Abdel Wahid, and also all-but-alone in trying to convene the institutions that were supposed to make the security arrangements function (for the last 3 months of the talks I had worked exclusively on that). And I was just about the only one who advocated publicly for the DPA. I advocated for it not because I was convinced about every part of it (I knew better than many its shortcomings and was probably the member of the mediation team least happy with the document) but because I was convinced that if it failed, there wouldn’t be another chance for Darfur for five years (I am waiting to see if that was accurate) and that the CPA would be endangered too. There wasn’t a better deal on the shelf just waiting for someone to wave a magic wand, so better to try with what we had. Optimism of the will–and I don’t regret it, although I paid a high price in being so publicly identified with a failed effort. And I can assure you that I found the AU’s capacity in rising to this challenge to be less than satisfying. Ditto, I should add, the other ‘guarantors’ including the U.S.
Do I expect the recommendations to be implemented as spelled out? Not at all. Is it a chance to make something happen that has not been happening to date? Yes. As I have written before, the odds are against. Thatâ€™s not a reason to stop trying.
Let me add to my comment to point out that the AU itself is completely invisible in setting out its agenda and point of view in the Sudanese media. Apart from one press conference in September, no member of the AU Panel has been quoted except for Ahmad Mahir who notoriously said that the purpose of the panel was to get President Al-Bashir off the ICC hook. There is one reference to an AU spokesman Mr. Barny Afaku but that is all. Most of the information on the AU panel available to the Sudanese media has come from this website.
Alex, I have been following your blog with interest. I am curious to know what you mean by the report “is a chance to make something happen…” What is that “something” in your view?
Graham: I will respond to your excellent question in a more extensive post in the next week, Alex