Sudan : Legislative frameworks and practices hindering freedom of expression
Najlaa Mohamed
Sudanese lawyer and an active figure in the field of human rights activism.
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Freedom of expression represents the framework upon which societal dialogue, information circulation, and popular participation in decision-making are built. However, in Sudan, despite constitutional provisions guaranteeing these rights, individuals and journalists face major restrictions.
Freedom of the press and publications is a critical issue long characterized by legal restrictions and practices aimed at suppressing the voices of those who oppose the government, often under the pretext of national security or public order. Herein, we will analyze the legal framework governing freedom of expression and the press in Sudan, compare these legislations with international standards, and address practical cases reflecting the challenges faced by journalists and activists.
Chapter I: Sudan’s legal framework for freedom of expression and freedom of the press
Since Sudan’s independence in 1956, numerous political regimes have ruled the country, including periods of military and civilian rule, all of which varied in their respect and application of human rights. These political changes were a primary reason for the variation in the level of freedom of expression from one period to another. During the regime of President Jaafar Nimeiri (1969-1985), the press and media experienced severe restrictions, with numerous newspapers closed and journalists prosecuted. During the rule of President Omar al-Bashir (1989-2019), the government expanded the use of the security apparatus to impose severe restrictions on freedom of expression, including the enactment of laws and legislation allowing the arrest and trial of opponents on vague charges of harming national security or spreading false news.
I. The Sudanese Constitution and the guarantee of freedom of expression
When addressing the legal framework for freedom of expression and freedom of the press, we must review the Sudanese Interim Constitution of 2005, issued during the Comprehensive Peace Agreement between the Government of Sudan and the Sudan People’s Liberation Movement–North (SPLM-N). Sudanese Interim Constitution of 2005 granted the right of self-determination to the southerners and according to which a popular referendum was held for the people of the South. The South seceded in 2011 and became an independent and sovereign state. This constitution relied on all international treaties and agreements signed by Sudan to be an integral part of it.
The Sudanese Interim Constitution of 2005 is the primary legal document guaranteeing citizens’ rights and freedoms. Article 39 of the Bill of Rights in the Constitution states, “Everyone shall have the right to freedom of expression without interference.” This right includes the freedom to seek, receive, and impart information to others by any means. However, these guarantees are not sufficient amid the existence of other laws imposing restrictions on the application of this right.
II. The Press and Publications Act of 2009
The Press and Publications Act of 2009 is one of the most prominent laws imposing restrictions on press freedom in Sudan. This law grants the authorities wide powers to control the media by issuing licenses and approving publications. The law further stipulates severe penalties for journalists who publish material that may be considered a threat to national security or public order.
The aforementioned law imposes prison sentences or fines on journalists who defame the state or incite hatred. Authorities use this law to shut down newspapers, including the Al-Tayar newspaper in 2012, which was shut down after publishing articles critical of the government and its policies.
III. The Cybercrime Law of 2018
In Sudan, cybercrime laws are a legal tool aimed at regulating the use of the digital space, but they are criticized for restricting freedom of expression and freedom of the press. These laws penalize activities deemed to pose a threat to national security or public order, including the dissemination of information or opinions that criticize the government. These laws are supposed to protect society from digital threats; however, they are further used to subjugate freedom of the press and expression, raising concerns about their compatibility with international human rights standards and guarantees of freedom of expression.
The Cybercrime Law of 2018 is one of the legislative tools used to suppress freedom of expression online. This aforementioned law criminalizes the publication or sharing of information that may be considered a threat to national security or contains material deemed harmful to public values and morals. This government frequently utilizes this law to target activists on social media, accusing them of spreading misleading or anti-state information.
In Security Report No. 120 of 2020, human rights activist Mohamed Ibrahim was accused of publishing information deemed harmful to national security, under Article 23 of the Cybercrime Law. This accusation was based on social media posts in which he criticized the policies of the transitional government.
IV. The National Security Act of 2010
The National Security Act of 2010 is one of the most dangerous laws restricting freedom of expression and the press. This aforementioned law grants Sudan’s security services broad powers of arrest and detention without trial for long periods of time. The law is particularly used against journalists and activists criticizing the government or the military. Several cases have been documented in which this law has been used to suppress press freedom, including the case of journalist Amal Habani, who was arrested for her writings criticizing government policies. Among the specifically restricting powers, the law grants the National Intelligence and Security Service (NISS) broad powers to censor the media. The NISS is authorized to withhold information it deems a threat to national security, restricting press freedom and giving the authorities the ability to control the flow of information.
1) Seizure of media materials and penalties
The law provides for the possible confiscation of media materials believed to pose a risk to national security. The law establishes penalties for individuals who publish information deemed harmful by the authorities, posing a threat to freedom of expression and further censoring media activity.
2) Detention without trial
The law authorizes the NISS to arrest and detain individuals without trial for extended periods of time based on allegations of national security. This legal arrangement limits guarantees of fundamental freedoms, including the right to a fair trial.
3) Surveillance of communications and media activities
The law authorizes the NISS to monitor and eavesdrop on electronic communications and media activities. This measure reinforces censorship of media and individuals, restricting freedom of expression and affecting the right to privacy.
V. Judicial rulings and jurisprudential development
Despite Sudan facing significant legal challenges regarding freedom of expression and the press, numerous important judicial rulings have contributed to strengthening these freedoms. Jurisprudence is slowly evolving and plays a key role in protecting the rights of individuals, although there are persistent obstacles that need to be addressed in a comprehensive legal and legislative manner.
Despite the restrictions, numerous judicial rulings have contributed to the development of jurisprudence regarding freedom of expression and the press. In 2016 case of Al-Tayyar newspaper, the Constitutional Court ruled to reissue the newspaper after the authorities suspended it for criticizing government policies. This ruling is an important step in promoting the concept of press freedom and the independence of the judiciary from the executive branch.
In 2013, the Constitutional Court restricted the NISS’s powers to suspend and confiscate newspapers, arguing that such measures contradict citizens’ constitutional rights to access to information and freedom of expression.
VI. The impact of the absence of the Constitutional Court on freedom of expression and the press
The recent absence of a constitutional court in Sudan has had a significant impact on freedom of expression and freedom of the press. The Constitutional Court plays a crucial role in guaranteeing the fundamental rights of citizens, including freedom of expression and the press, by reviewing laws and decisions that may contradict the constitution or violate the rights of individuals, including:
1. Lack of constitutional oversight on laws
In the absence of Constitutional Court, there is no supreme legal body monitoring the constitutionality of laws related to freedom of expression and the press. Any law or executive decision issued to restrict media freedom does not face legal challenges from a constitutional perspective, increasing the likelihood of restrictive laws or repressive practices against journalists.
2. Weak legal protection for journalists
The Constitutional Court is the institution that guarantees the rights of individuals in the face of violations by the state or security services. In its absence, journalists and activists are left without a strong defense against arbitrary arrests, confiscation of newspapers, and closure of media outlets. Consequently, journalists face increasing risks, limiting their ability to perform their duties.
3. Disruption of jurisprudence and its development
The Constitutional Court contributes to the development of jurisprudence, especially with regard to the interpretation and protection of constitutional rights. Its absence stalls jurisprudence that could clarify and expand the understanding of fundamental rights, including freedom of expression. Consequently, restrictions on the press and media remain stagnant without any development in the legal understanding to enhance freedoms.
4. Delayed adjudication of constitutional disputes
Cases involving freedom of the press or expression that are normally brought before the Constitutional Court are stalled or delayed due to its absence, meaning that violations may continue without judicial review. This exacerbates censorship and restrictions on the press and weakens the ability of journalists to challenge government decisions.
5. Executive authorities continue to impose restrictions
Amid absence of a supreme judicial body to hold the government accountable, executive and security authorities may continue to impose restrictions on the press and expression without fear of legal consequences. Under these circumstances, laws restricting freedom of press become more vulnerable to abuse and arbitrariness, especially in the absence of a constitutional mechanism to guarantee compliance with constitutional standards.
VII. Restrictions on the press under emergency laws
Emergency laws allow the government to enact exceptional legislation restricting civil rights, including freedom of expression and the press. This exceptional legislation creates a turbulent legal environment, where the rights of individuals and journalists are not guaranteed and are subject to the discretion of the security services, which exacerbates repression and makes it difficult for journalists to practice their profession freely.
Emergency laws grants authorities near-absolute powers to control information and the media, leading to a significant restriction on press freedom. These restrictions include:
1. Confiscation of newspapers
Newspapers that criticize the government or cover sensitive news related to the war or government policies are banned or confiscated.
2. Prior censorship
Media content is heavily censored, forcing journalists to avoid covering controversial issues or ones contrary to the government’s vision.
3. Media closures
During states of emergency, numerous opposition or independent media outlets face shutdowns, reducing the diversity of media voices and further increasing government control over the official version of events.
4. Arbitrary arrests
Under emergency and war laws, journalists and activists face waves of arbitrary arrests. Journalists are arrested for simply covering events or for publishing reports that the authorities may consider a threat to national security or inciting unrest. Arrests are often made without fair trials, and detainees may remain in detention for long periods of time without being formally charged.
5. Limiting access to information
During armed conflicts, information on the war and the conduct of military operations becomes a highly sensitive subject. Authorities prevent journalists from accessing conflict zones or interviewing witnesses and victims, causing media reports to solely rely on official government sources, thus diminishing the credibility and diversity of media coverage.
6. Controlling the Internet and Social Media
During periods of emergency and conflict, Sudanese authorities and warring militias frequently shut down or restrict the internet. This pattern hinders journalists from accessing information and communicating with sources and prevents citizens from freely expressing their opinions through social media platforms. Internet shutdowns isolate society from current events and limit the media’s ability to disseminate news in real time.
7. Promoting government propaganda
Under the aforementioned situations, official media outlets are utilized to disseminate the government’s propaganda and promote its narratives about the war and the state of emergency. Independent media are rarely able to compete with these official narratives, which often promote the military or government as defenders of the country against external or internal threats, while opposing voices are accused of treason or conspiracy.
8. Psychosocial impact on journalists
The current environment poses a significant risk to journalists working during a state of war and emergency. Journalists suffer from fear of being arrested, threatened, or even killed. This prevents journalists from covering events boldly or impartially, negatively affecting the quality of news and limiting the flow of information.
9. The impact of war on access to justice
Under the ongoing war, journalists and citizens affected by violations face difficulty accessing the judiciary to defend their rights. The absence of a constitutional court and the disruption of the judicial system means that justice is out of reach, and there are no effective legal mechanisms to protect journalists or hold those who violate their freedom accountable.
Chapter II: Comparative international legislation
The International Convention on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) promote freedom of expression and freedom of the press, guaranteeing the rights of individuals to express and disseminate information freely. These aforementioned treaties guarantee the protection of journalists and their rights to disseminate information, and further support the fight against censorship and political pressure, to enhance the role of the media in a democratic society and support their basic human rights. These treaties enhance the right to express freely and contribute to transparency and accountability, guaranteeing the right of individuals to exchange ideas and information without fear of repression or sanctions, and further support social and political development.
The International Covenant on Civil and Political Rights, ratified by Sudan in 1986, guarantees freedom of expression under Article 19. Article 19 states that “Everyone shall have the right to freedom of expression.” This freedom includes the right to receive and impart information and ideas without interference. The ICCPR allows restrictions only as a necessary measure to protect national security or public order, but such restrictions must be “necessary” and “proportionate” to that goal.
In Sudanese legislation, restrictions on freedom of expression are not clearly defined and are often too general. Terms such as “national security” and “public order” are widely used to justify restrictions, without providing clear or proportionate justifications, leading to restrictions of freedoms beyond what is permitted by international standards.
Article 19 of the Universal Declaration of Human Rights emphasizes the right of everyone to freedom of expression. The UDHR indicates that freedom of expression includes the right to freely impart ideas and information without regard to borders. This means that the restrictions imposed by the Sudanese authorities, whether through press or cybercrime laws, are clearly contrary to the spirit of the Universal Declaration.
Chapter III: Practical Applications of Restricting Freedom of Expression and Freedom of the Press in Sudan
I. Cases of press freedom in Sudan
Sudan witnessed numerous cases clearly indicating how freedom of the press and expression are restricted, including:
· Al-Tayar newspaper case in 2012: Al-Tayar newspaper was shut down by security authorities after publishing articles criticizing government policies. A case was filed against the newspaper’s editor-in-chief, Osman Mirghani, under the Press and Publications Act, and he was accused of publishing false news and inciting hatred against the state.
· Security Report No. 23 of 2019 against journalist Amal Habani: Journalist Amal Habani was arrested in 2019 following her writings criticizing the policies of the transitional government. Habani faced accusation of spreading misleading news under the Cybercrimes Law.
· Security Report No. 47 of 2021 against activist Mohamed Suliman: Activist Mohamed Suleiman faced charges of publishing information harmful to national security on social media, and was summoned for investigation based on posts criticizing the policies of the Sudanese military.
II. Restricting freedom of expression online
With technological development and the spread of social media, these platforms have become a new arena for the expression of opinion, prompting the Sudanese authorities to take strict measures to control online content. The Cybercrime Law of 2018 granted the government the ability to prosecute activists and journalists who use these platforms to freely express their opinions, and the information posted is often categorized as “disinformation” or a “threat to national security.”
In 2020, Sudan witnessed a high-profile case, where human rights activist Mohamed Abdella was arrested for posting content on Facebook critical of the transitional government. He was charged under Article 17 of the Cybercrime Law, as authorities considered his posts a threat to national security. This incident, similar to other cases, indicates how internet-related laws in Sudan are used as an effective tool to silence dissenting voices.
III. Blocking media outlets and closure of newspapers
The Sudanese authorities utilize the closure of newspapers and blocking media outlets as common tools to restrict press freedom. In 2012, one of the most prominent examples of this type of violation, the authorities shut down Al-Tayar newspaper, following the publication of a series of articles critical of government policies. Authorities used the Press and Publications Act to revoke the license and close the newspaper. Although the newspaper filed an appeal, authorities refused to allow it to reopen for a long time, significantly impacting independent journalism in Sudan.
In 2019, Sudanese authorities shut down the popular Sudanese newspaper Al-Sudani. Al-Sudani newspaper was known for its criticism of the transitional government. According to Security report No. 45 of 2019, the newspaper was accused of spreading false news and inciting the public against the state. This closure led to a decline in the level of press freedom in Sudan, as the role of the press in raising awareness, educating, and monitoring the performance of the government was curbed.
IV. Pre-censorship of content
Pre-censorship of the media is also one of the repressive practices Sudan uses against press freedom. In numerous cases, newspapers are strictly censored before their articles are published, as editors have to submit articles to the authorities for approval before publication. This system of prior censorship significantly reduces the role of the press as a fourth authority and renders it to a tool of the ruling authorities.
In 2020, Al-Intibaha newspaper was forced to withdraw an entire issue from the market for publishing an article in which an editor criticized the performance of the transitional government. The editor-in-chief was ordered not to publish the article, but the newspaper stuck to its position, leading to its temporary closure and fines, under Article 29 of the Press and Publications Act.
Chapter IIII: The Impact of restricting freedom of expression and freedom of the press on human rights
I. Impact on human rights
The restriction of freedom of expression and freedom of the press directly affects the human rights situation in Sudan. Freedom of expression is a fundamental right affecting a wide range of other rights, including the right to participate in public affairs and the right of access to information. With restrictions on the press in Sudan, citizens are misinformed and cannot access accurate and reliable information about national and international affairs.
This repression created a climate of fear, where journalists and activists are afraid to express their opinions freely. Under draconian laws such as the Cybercrime Law, individuals who try to use the internet and social media to express their political or social views are targeted. This repression limits public debate and hinders efforts for political and social reform.
II. Impact on journalists and media professionals
Journalists and media professionals are the most affected by policies restricting freedom of expression in Sudan. Under strict legislation and repressive practices, journalists face difficulties in performing their work freely. The authorities pressure them to prevent publishing news deemed “sensitive” or related to political criticism of the government.
Journalists often face self-censorship to avoid being targeted or being arrested by the authorities. This hostile environment leaves independent journalism in Sudan in a constant state of vulnerability, as non-partisan journalism that attempts to provide impartial coverage is considered vulnerable to attack by the government or other parties.
In 2019, journalist Khalid Owais was arrested after publishing a report on human rights violations in one of the disputed areas of Darfur. He was charged with spreading false information and inciting the public under Article 66 of the Sudanese Penal Code of 1991. This case is an example of how laws can be used to restrict freedom of press and punish journalists attempting to expose violations.
III. Impact on democracy and good governance
Democracy and good governance cannot be achieved in any country without freedom of expression and freedom of the press. In Sudan, restrictions on the media have eroded democratic institutions and reduced transparency. Citizens face difficulty accessing independent information about the government’s performance and holding it accountable for any violations.
The absence of freedom of press further hinders civil society in organizing and advocating for citizens’ rights. Under these restrictions, the political opposition is weak and unable to influence public policies or effectively discuss alternative options.
Chapter V: Comparison between Sudanese and international legislation
I. International standards for freedom of expression
According to international human rights standards, freedom of expression is protected by clear provisions in numerous international instruments. The International Covenant on Civil and Political Rights provides in Article 19 the right to freedom of expression and places strict limits on governmental interference with this right. States are allowed to impose restrictions only if they are “necessary” and “proportionate” to protect national security or public order.
II. Sudan vs. international standards
The comparison between Sudanese legislation and international standards indicates that Sudan imposes greater restrictions on freedom of expression and freedom of the press. International law stipulates that any restriction must be justified and necessary, while Sudanese authorities rely on vague and undefined terms, including “national security” and “public order” to justify repression. These terms allow the government to take extreme measures without providing any real justification, leading to violations of rights guaranteed under international law.
In the Al-Tayar newspaper case of 2012, the Press and Publications Act was used to shut down the newspaper over “threats to national security,” without providing clear evidence of this threat. In contrast, under international standards, the government has to prove that closing the newspaper was necessary to protect national security and that there were no other less restrictive means to protect this interest.
Chapter VI: International reports on freedom of expression and freedom of press in Sudan
International reports often focus on the ongoing violations and challenges facing journalists and media professionals. The following is a review of the most prominent of these reports from well-known international organizations:
1. Reporters Without Borders
Reporters Without Borders (RSF) ranks Sudan low on the World Press Freedom Index. In its recent reports, the organization reported that journalists in Sudan face threats of arrest and harassment, confiscation of newspapers, and closure of media organizations. RSF reported that Sudanese authorities frequently use the 2009 Press and Publication Act and emergency laws to impose censorship and prevent coverage of political events and protests.
2. Human Rights Watch
Human Rights Watch’s 2020 report on Sudan noted that restrictions on freedom of expression remained intact, despite the political changes after the Sudanese revolution in 2019. HRW reported that Sudanese security services, including the National Intelligence and Security Service (NISS), disrupted the work of many newspapers and media professionals. The report further documented cases of torture and arbitrary detention of journalists who covered protests and political unrest.
3. Amnesty International
The Amnesty International’s reports documented multiple violations of freedom of expression, including the use of force against protesters and journalists, and the closure of opposition newspapers. In 2019, Amnesty International documented several cases of journalists under threat because of their coverage of the events of the Sudanese revolution and the subsequent transition.
4. The United Nations and the Human Rights Mission in Sudan
The United Nations (UN), through its various missions, including the Human Rights Mission, emphasized in its reports the need to promote press freedom in Sudan as part of the democratic transition after the revolution. The UN reports further noted that the continued censorship and restrictions on the media are not in line with Sudan’s international obligations under the International Covenant on Civil and Political Rights. The UN called on Sudan to reform laws, especially the press law, to guarantee the independence of the media and the protection of journalists.
5. Committee to Protect Journalists
The Committee to Protect Journalists (CPJ) documented the arrest and detention of numerous journalists in Sudan, during periods of political unrest. In 2018, CPJ reported that Sudan was among the top countries arresting journalists, with charges brought against them for their coverage of corruption and protests.
The main challenges highlighted in the report were:
- Pre-censorship, where authorities censor newspapers and media before publication, limiting press freedom
- Arbitrary arrests targeting journalists with repressive legal procedures
- Emergency laws frequently invoked to restrict press freedom during crises
- Physical and psychological abuses including torture and threats against journalists who report on sensitive topics
International reports confirm that freedom of expression and freedom of press in Sudan face significant challenges despite recent political transformations. The Sudanese government needs to adopt genuine legal reforms to protect these fundamental rights and fulfill its international obligations.
Chapter VII: Legal recommendations and reforms
1. Strengthening freedom of press in Sudan
Sudan must review current laws that impose restrictions on freedom of press and freedom of expression. Authorities must amend the Press and Publications Act to be more in line with international standards. Amendments should include abolishing or amending vague terms that allow authorities to interpret laws broadly.
2. Repeal the Cybercrime Law
The Cybercrime Law of 2018 must be repealed or amended to guarantee that freedom of expression is protected online. A legal framework can be implemented to deal with cybercrimes, without compromising freedom of expression. Restrictions on the internet must be specific and proportionate to the legitimate aim and should not be used as a pretext to suppress political views.
3. Strengthening the independence of the judiciary
The protection of freedom of expression and press requires an independent judiciary capable of handling cases related to these rights objectively and transparently. The independence of the judiciary from political influences is one of the prerequisites for guaranteeing justice in cases related to freedom of expression. Unfortunately, in many cases in Sudan, the judicial system is under pressure from the government, affecting the fairness and objectivity of trials related to freedom of the press and expression. A functioning and efficient constitutional court would strengthen the independence of the judiciary and protect the right to expression.
4. Protecting journalists and ensuring their safety
A legal framework is essential to establish protection of journalists from threats and harassment they face due to their work. The safety of journalists must be guaranteed, and they must be provided with legal protection that allows them to do their work freely without fear of arrest or intimidation. Mechanisms can be further implemented to protect journalists from physical or online violations they may suffer as a result of their media coverage.
5. Promoting freedom of expression in cyberspace
The Sudanese government should promote freedom of expression in cyberspace and develop policies conforming to international standards. The Sudanese government should repeal or amend some of the draconian articles in the Cybercrime Law. Sudan can adopt policies that respect the right to freedom of expression online, while maintaining the protection of national security and individual rights.
6. Strengthening the role of civil society
The role of civil society organizations in supporting freedom of expression and the press in Sudan must be strengthened. These organizations can act as watchdogs, ensuring government adherence to international human rights standards. The international community must support the efforts of civil society organizations in Sudan through training, funding, and raising awareness about the importance of freedom of expression.
7. Abolishing harsh penalties for the press
Sudanese laws that impose severe penalties on journalists or media outlets, including large fines or prison sentences, should be amended. Alternatively, self-accountability mechanisms within the media sector itself could be strengthened to guarantee journalists’ adherence to professional ethics without direct government intervention.
Conclusion
The evidence presented in this article indicates that despite Sudan’s commitment to international human rights standards through its ratification of certain international treaties, it suffers from severe restrictions on freedom of expression and freedom of press. Domestic legislation including the Press and Publications Act of 2009 and the Cybercrime Law of 2018 grant authorities broad powers to restrict these freedoms, and are often exploited to target journalists and activists.
The comparison between Sudanese legislation with international standards indicated that Sudan needs to undertake fundamental reforms to guarantee freedom of expression and press. These reforms include amending laws, protecting journalists, and strengthening the role of civil society. The situation in Sudan requires a delicate balance between protecting national security and the rights of individuals to freely express their views, and the authorities must take serious steps to achieve this balance.