VII. International and Sudanese Law on Freedom of Expression

Sudan is obliged to respect the right to freedom of expression of all its citizens under international law and Sudan's National Interim Constitution. However, certain national laws are inconsistent with these obligations. The Sudanese government continues to use these laws to practice censorship and other forms of repression of freedom of expression and the media.

International Law and the National Interim Constitution

Sudan is a party to the International Covenant on Civil and Political Rights (ICCPR),[38] which under article 19 imposes legal obligations on states to protect freedom of expression and information:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.[39]

The ICCPR permits governments to impose certain restrictions or limitations on freedom of expression, if such restriction is provided by law and is necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.[40] However according to the "Johannesburg Principles"[41] for a restriction to be legitimately in the interests of national security:

Its genuine purpose and demonstrable effect must be to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source such as a military threat, or an internal source such as incitement to violent overthrow of the government… In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing.[42]

The actions taken by the Sudanese authorities, in particular the NISS do not stand up to scrutiny as limitations which are compatible with international human rights law.

Sudan is also a party to the African Charter on Human and Peoples' Rights (ACHPR),[43] which in article 9 states:

1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.[44]

In October 2002 the African Commission on Human and Peoples' Rights adopted a Declaration of Principles on Freedom of Expression in Africa, which sets forth the positive obligations of the state parties to the African Charter on Human and People's Rights (ACHPR) in relation to freedom of expression, including the incompatibility of a state monopoly over a broadcasting system.[45] 

Sudan's Interim National Constitution (INC) of 2005 also incorporates the international obligations to protect the freedom of expression contained in the ICCPR and the ACHPR. Article 39 of the INC asserts that:

1. Every citizen shall have an unrestricted right to the freedom of expression, reception and dissemination of information, publication, and access to the press without prejudice to order, safety or public morals as determined by law.
2. The State shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society.
3. All media shall abide by professional ethics, shall refrain from inciting religious, ethnic, racial or cultural hatred and shall not agitate for violence or war.

National Laws

A number of Sudan's national laws allow for conduct that is inconsistent with Sudan's obligations under international law in relation to freedom of expression. Officials use these laws to control the activities of journalists and censor print media.

Sudan's 1991 Penal Code criminalizes certain activities by journalists, including the "Propagation of False News"[46] and Defamation,[47] which are widely used by Sudanese authorities to charge journalists and editors with these crimes for publishing information seen as critical of the authorities. For example, in November 2007, Al-Fatih Mahjoub Irwa, editor in chief of the Arabic daily Al-Sudani, and his deputy and columnist Nureldin Madeni were sentenced to two months in jail after refusing to pay a fine of 10,000 Sudanese pounds each ($5,000 USD) for defamation. The NISS brought the charges after the newspaper published an article criticizing the security forces for arresting four journalists who were trying to cover a story of the killings of protesters at Kajbar dam site in Northern state and where police opened fire at protesters.[48]

Other legal provisions are not directly related to the media, but are used by the authorities to stifle independent reporting through the threat of serious legal repercussions and financial penalties. While the Penal Code does not give specific powers to the NISS in relation to the media, the 1999 National Security Forces Act (NSFA) gives the NISS broad powers of surveillance, inquiry, search, custody of persons and seizure of property, summoning and interrogation of persons and requiring of information, statements and documents[49] in the pursuit of its functions (which are also broadly stated but include keeping the national security of Sudan and preserving its unity and any other functions the President of the National Security Council assign to it).[50] The NSFA permits the NISS to arbitrarily arrest, hold individuals in incommunicado, and prolong detention without judicial review[51] and carry out arbitrary searches. In addition, the NSFA grants NISS broad immunity from prosecution under article 33 (b):

No civil or criminal proceeding shall be instituted, against a member [of the NISS] or collaborator for any act connected with the official work of the member, save upon approval of the Director [the Director General of the NISS].[52]

The NISS censors interpret the NSFA as authorizing them to control the media through a variety of measures-including direct pre-print censorship, suspension or even shutting down newspapers for publication of any information seen as sensitive or critical of the government, and threatening individual journalists and editors with arrest and detention.

Sudan's national laws also allow the government to maintain both direct and indirect state control of the media. The 2004 Press and Publications Act establishes the jurisdiction and powers of the National Press Council, the body responsible for the granting of licenses to domestic and foreign press institutions, the registering of journalists, as well as adjudicating complaints, through warnings, sanctions and penalties. Article 25 (Licensing of newspapers, journals and media publications) requires all newspapers and publications to renew their licenses annually and for all journalists to be registered by the NPC to be able to practice journalism. However, the NPC is not an independent body. It is overseen by the Minister of Information and Communications and accountable to the National Assembly, who also controls its financial resources.[53]

These laws allow for, and are used by, the NISS to justify conduct that is in direct contravention of the ICCPR, the Johannesburg principles, and the ACHPR. In addition to ending practices of print censorship and harassment and abuse of journalists and human rights activists, the Sudanese government should urgently reform these laws to bring them into line with their obligations under international law and the principle of freedom of expression as set out in Sudan's own Interim National Constitution.