Fears of further violence in Sudan are currently generating many news headlines because of the looming January 2011 deadline for the referendum on southern independence.
While talk has centered upon the potential for clashes between northern and southern troops, there has been virtually no public discussion about the likelihood of increased violence against women – even though the occurrence of sexual violence in the conflict in Darfur is well-known. It was also a significant feature of the north-south war, though less documented.
When the north-south war ended in 2005, the newly established interim constitution included a bill of rights that raised the hopes
of many human rights activists, including those fighting for women's rights. It carried potential to reform harsh, discriminatory laws affecting women, including a criminal law that does not distinguish between rape and adultery. To capitalize on this opportunity, women's groups have organized themselves into a coalition to push for legal reform. But the “interim period” – the time from the 2005 peace deal up to 2011, the year of the referendum – is coming to an end, and there is still no sign of action on amending the discriminatory aspects of these Sudanese laws.
Sexual violence in the Darfur conflict compelled women's groups in north Sudan to reflect on what they could do to assist rape survivors. They identified the need to press for reform of the Sudanese laws relating to rape, particularly through the framework of Sharia law, which applies in north Sudan, although judicial authorities have not interpreted it consistently.
Section 149 of the Sudanese Criminal Act 1991 makes no distinction between rape and adultery. If a woman reports that she has been raped, but is unable to prove the allegation, she may be charged with adultery. Many women who are survivors of rape have reportedly been punished with 100 lashes, the sentence laid down under Sudanese law for unmarried people found guilty of committing adultery. Married people found guilty of committing adultery are sentenced to death by stoning. Although rarely carried out, such sentences have been passed on women who have reported being raped and, in 2007, two women were sentenced to death in Sudan for adultery.
Rape is a very hard crime to prove under any legal jurisdiction; but it becomes almost impossible to verify when judges in Sudan apply the rules of evidence under Sharia law, in so-called “hudood” cases. As set out in the Sudanese Criminal Evidence Act of 1993, such cases require four male witnesses to testify, or a confession by the accused, in order to achieve a conviction. Further, Sudanese security officials – considered some of the worst perpetrators of sexual violence in Sudan – are by law granted immunity from prosecution. The multiple difficulties that a rape survivor faces in pursuing her case to court, including the shame and humiliation she may face in her community, the fear of retaliation by the perpetrator, and the risk that she herself may be prosecuted for adultery, result in very few rape cases coming to court. Thus, a situation of almost total impunity for perpetrators of sexual violence has been created in the increasingly violent Sudan.
While the use of rape as a weapon of war escalated in Darfur several years ago, the conflict between north and south Sudan was coming to an end. The 2005 Comprehensive Peace Agreement (CPA) between north and south Sudan and the Interim National Constitution of Sudan provided many opportunities for meaningful legal reform. Both documents include a bill of rights and require Sudanese law, including the criminal laws, to be amended in accordance with international human rights standards. Sudanese women's organizations realized that they had to use the “interim period” to continue pushing for legislative reviews while the legal reform process was still under international scrutiny.
Around this time, in March 2009, the International Criminal Court issued an arrest warrant against President Bashir, and Sudanese authorities severely limited the space for civil society. The government's decision to expel a number of international aid organizations from the north, including from Darfur and the three transitional areas of Abyei, Southern Kordofan, and Blue Nile, has had a serious impact on women's protection. Although some of this humanitarian capacity has since been replaced, agencies have not been permitted to reestablish programs focused on support to survivors of gender-based violence.
Despite this restrictive environment, it was impressive to see that in January 2010, women's organizations in Khartoum launched a new coalition called the Section 149 Alliance, focused on seeking reform of section 149 of the Sudanese Criminal Act. But the clock is ticking towards 2011, and there has not yet been any meaningful progress towards reform of many Sudanese laws, particularly those discriminatory towards women. Discouragingly, in August 2010, the Sudanese parliament called for the enforcement of the Sharia-based punishments for adultery, such as lashes and death by stoning, as well as the promotion of early marriages and polygamy.
As Sudan moves into another potentially dangerous period of its history with the upcoming referendum on southern separation, the international community must remember the dangers that women could face if conflict breaks out, and make contingency plans and early warning systems that take these dangers into account. The international community must also recognize that there are Sudanese organizations that have many years of experience supporting women's rights. Many of their leaders have taken great personal risks to stand up for the rights of women in their communities, including attempting to push for law reform under difficult circumstances. Accordingly, the international community must ensure that consultations with women's groups take place, as these groups can raise the alarm about risks that women face that may not otherwise receive attention.