The trial against Bashir for 1989 coup d’état is against Sudan law

Just how Sudan will be able to convict former President Omar Al-Bashir and 27 defendants for staging the 1989 coup remains a major issue of contention. Not merely in the special court which reconvened yesterday, but also with the concerned general public eager to see justice meted out 30 years after the fact.

Yesterday’s court session was adjourned after defence lawyers raised objection to one of the judges,  regarding the venue and legality of the case under the statute of limitations. “Under Sudan’s current laws, the trial of former President Al-Bashir for a coup thirty years ago is illegal. Sudanese laws do not allow prosecution of crimes over ten years, so the case is 20 years too late,” stated defence lawyer Sirajuddin Hamid, speaking a day before the court session.

Hamid is a veteran lawyer and was a former diplomat in Al-Bashir’s government. His client is Nafie Ali Nafie, the former head of intelligence and general secretary of the former ruling National Congress Party who is one of the 27 accused. He is standing trial with Al-Bashir, alongside major figures of the 1989 coup, including former Vice Presidents Ali Osman Taha, Hasan Bakri Salah and ideologue Ibrahim Sanousi, a close confidante of Hasan Al-Turabi – the then head of the Islamic movement and largely viewed as the orchestrator of the coup, who died in 2016.  The men are all accused of having plotted the 30 June, 1989, coup during which the army arrested Sudan’s political leaders, suspended parliament and other state bodies, closed the airport and announced the takeover on the radio.

If found guilty, the men could face the death penalty. Hamid claims such a sentence would also be against the law. He believes the current government is retrospectively trying to amend the laws to secure a guilty verdict. “Under the current law, defendants over 70 years old cannot be given the death penalty or receive extended periods in jail,” according to Hamid.

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Lawyers in the corruption trial against Al-Bashir faced the same difficulty in securing a substantive sentence. Al-Bashir was found guilty of taking and illegally using $25 million from the crown prince of Saudi Arabia, but was sentenced to just two years in detention. He was found not to have officially accounted for foreign currency which required the funds to be deposited into the country’s Central Bank. Hamid believes that the government is secretly making plans to amend the laws so that the septuagenarian defendants may be publicly executed.

Since the removal of Al-Bashir’s regime on 11 April, 2019, the transitional government led by military General Abdel Fattah Al-Burhan has refused to give the former president over to the International Criminal Court (ICC) in The Hague, despite statements by the civilian government who have agreed to cooperate with the ICC. However, the military rulers have indicated that he will face trial for his crimes through hybrid courts set up in Sudan. Al-Bashir is accused by the ICC of committing genocide, war crimes and crimes against humanity in the Darfur civil war which began in 2003, and officially ended with the signing of the peace agreement by the transitional government at the end of last month.

The latest trial for staging the 1989 coup was made possible by the 17 August signing of the Constitutional Convention, which allows prosecution for any crime perpetrated after the 30 June, 1989. At yesterday’s trial, defence lawyer Baroud Sandal asked for the removal of a judge involved in the sit-in protests against Al Bashir’s regime and accused him of chanting slogans against the defendants. “Our clients feel the court is against them,” expressed Sandal.

Defence lawyers went on to argue that the trial contravened the law because there was no provision under the constitutional document for a “special court”. The trial was pushed back to 3 October as defence lawyers also demanded a new venue that would adhere to guidelines for social distancing. It follows an outbreak of the coronavirus virus in Kober Federal Prison, where most of the defendants are being held. All defendants stood in cramped conditions inside a metal cage in a packed courtroom. The suggested venue of Sudan’s conference facility building, the Friendship Hall, was discounted, although the former UNAMID headquarters in Khartoum is being considered.

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Defence lawyers also argue that seven of the eight Supreme Court judges have not had contracts renewed. Therefore, no official court of appeal exists. Hamid described this as a deliberate move by the government to subvert the due process of law. He confirmed that more than 100 civil servants working in the judiciary had been dismissed under laws to break up the institutions of the former regime. Under international law, there is no precedent for the prosecution of those staging a coup d’état, but prosecutors do, however, have a precedent in Sudan when former President Nimeiry was charged and found guilty in absentia for the unlawful staging of the 1969 coup against the government of President Ismail Al-Azhari.

In the coming months, prosecutors are hoping to prove that the coup was a criminal act that removed the lawfully-elected government of Sadiq Al-Mahdi and that the trial has a legal basis. However, the defence are concerned that the court is politically motivated and fully intends to convict regardless of legal argument. The 120 lawyers defending the accused men are adamant that the court is constitutionally illegal, but whatever the outcome, prosecutors are hoping the case will set a legal precedent and serve as a deterrent to future coup plotters.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.