Protection of Human Rights and Providing Humanitarian Relief

A Case Study of Forced Relocation in Khartoum, Sudan

By Rob Kevlihan1

1
Written Fall 1998 as part of a course in International Law while completing a Masters in IR at Dublin
City University, Ireland.
Background

Sudan, the largest country in Africa, has endured civil war for most of its post
independence period, except for a respite in the 1970’s. The latest phase of the
conflict began in 1983 with the imposition of Shar’ia Law by the government in
Khartoum. The current regime came to power in a military coup d’etat in 1989, and
has turned in earnest to the project of creating an Islamic Arab state, despite the
religious and cultural diversities that lie at the heart of the current conflict.

The situation of the estimated 1.9m southern and western people displaced by war and
drought to live in the environs of Khartoum state is complex. Due to the duration of
the conflict and a succession of famines from the 1980’s, many have been living in
and around the three cities of Khartoum state (Khartoum, Omdurman and Khartoum
North) for 15 years or more. Every year, more are forced to make the arduous and
dangerous journey to the capital city in search of food, security and a livelihood.

So called displaced live in three categories of land. The first are displaced camps,
areas set aside by the Khartoum state authorities in the early 1990’s to hold newly
arriving displaced. These camps are located on the fringes of the city, are
characterised by a strong security presence and a proliferation of non-governmental
organisations, both national and international, who provide basic health and sanitation
services. These areas are intended as temporary residency areas and are subject to
intended re-planning by the state authorities (see below). The constant threat of re-
location and endemic poverty has resulted in much of the shelter in these areas being
of a temporary nature – ‘tukkels’ made of a combination of sacking and plastic
sheeting.

The second are settlement areas, where displaced have been re-settled in planned areas
and given title to their land. The allocation of title is in many respects the only real
distinction between these locations and other displaced locations, with communities
being left without adequate health, sanitation and educational facilities. It could be
argued that they are worse off in many respects as donor resources have been in the
main focussed on displaced camps, resulting in a concentration of non-governmental
organisation (NGO) activity in those locations. Because of guaranteed land tenure,
however, the quality of buildings in these areas in usually much higher, as residents
feel more secure investing scarce resources into improving their shelter.

Finally, large numbers of displaced choose to live as squatters closer to main areas of
employment. Many of these have been resident in these locations for up to 15 years or
more and have constructed mud-brick houses and other facilities for their
communities.

Conditions for all displaced, regardless of their location, are extremely difficult.
Situated in desert areas, without access to irrigation from the Nile, they live in a harsh
environment, with temperatures reaching up to 50 Celcius for all but the winter
months of December to February. The brief rainy season of July to September is
characterised by flash rain storms resulting in extended periods of flooding
(exacerbated by the fact that many settlements are located in natural flood plains) and
considerable damage to housing. Vulnerability to the elements is exacerbated by poor
employment prospects, ethnic, cultural and religious marginalisation and poor access
to basic health and other social services.

State Planning Policy

The Khartoum state government embarked on an urban planning initiative in the early
1990’s. The plan proposes to grant legal title to land to those displaced resident in
Khartoum pre-1992, who can prove Sudanese citizenship and sometimes pay a
nominal registration fee. The process of re-planning is characterised by the
registration of displaced in situ, followed by the marking of dwelling slated for
demolition. It is estimated that at least 20% of an areas population will have to be re-
located to ‘re-plan’ an existing area (per briefing from State Minister for Urban
Planning, August 1997), while other locations wanted for business or commercial
reasons are completely demolished to allow the required development.

The process of demolition has in the past been characterised by heavy handed tactics
on the part of the authorities, with minimal notice given to the residents to re-locate.
In some instances bull dozers knocked entire residential areas in the middle of the
night, resulting in a number of deaths and the further impoverishment of the residents.

Zagalona Background

In late September 1997, international non-governmental organisation (INGO)

representatives became aware of an impending demolition and re-location of 300
families squatting in the Zagalona/Industrial Area region of Omdurman. INGO’s were
informed by State Relief authorities that these people would be re-located to a
displaced camp and would be in need of emergency assistance – in particular shelter
and food. This information was received on a Thursday afternoon, with the proposed
demolition scheduled for the following Saturday or Sunday (Friday being the day of
rest in Islamic countries). The pattern adopted by the Ministry of Urban Planning was
identical to previous demolitions – minimal prior notice to the community at risk.
Discussion by INGO representatives with community members on the Friday revealed
that the community had been informed they were to be re-located and given legal title
to land in a settled area. They were satisfied with this arrangement. However, they
were unwilling to be re-located to a displaced camp, without title to land.

It appeared that the community had been deliberately mis-informed in order to prevent
organised opposition to the demolition. On Saturday trucks and police arrived to begin
the re-location. The community refused to move and five leaders who had met with
INGO representatives the previous day were arrested. A small number of families
with title to land had their homes demolished and left peacefully.

INGOs, the UN and donor representatives were faced with a complex situation. It was
clear that the residents of this community were not prepared to move to a displaced
camp. A strategy was required that would protect this community in accordance with
their own wishes, by seeking to ensure that they were re-located to designated plots.

INGOs were also concerned regarding their potential role in the re-location process.
Clearly, following their humanitarian imperative, INGOs would assist families in need
once re-located. However, ultimate responsibility for the well being of these residents
resided with the government itself, and not with INGOs. INGOs were concerned to
emphasise this fact in any planned strategy.

INGO representatives sought the advice of a human rights lawyer regarding possible
remedies or devices that could be used under international human rights law to
address this situation. The analysis below is largely based on an outline list of relevant
International Law provided by this lawyer (see unpublished sources). However, this
outline merely pointed out possible sections, rather than explaining them in detail and
did not deal directly with any aspect of domestic or regional remedy.

Protection afforded by Human Rights Law

Domestic Protection

The first point of reference for human rights cases is always the degree to which
domestic legislation can be relied upon to protect abuses of human rights. In relation
to the urban re-planning process, the state’s right to squatter land dated from colonial
times. Prior to the arrival of the displaced, this land had been open desert and as such
was the property of the government to do with as they pleased. In addition, any
domestic legal challenge to the Zagalona re-location would have to come from at least
one of the residents themselves. Given the nature of the regime in Sudan, the fact that
five leaders were already being held in detention and the short duration available to
react to the impending violation, it was felt that such a domestic challenge would be
both foolhardy (should an individual or the community be prepared to bring it
forward) and ultimately unsuccessful.

Finally, a proposed constitution was at that stage in draft form, but had not yet been
promulgated or passed into law. Therefore, there was no fundamental document upon
which to launch a rights based challenge. The constitution subsequently passed in
1998 does guarantee in paragraph 28 the sanctity of earning (sic) and property:

‘Every person shall have his right to acquire property and knowledge, and shall
enjoy the privacy of his earning: and there shall be no expropriation of
whatever he has gained of livelihood, property, land,……save as such law as
may charge him with the tax contribution for public need or public interest in
consideration of just compensation.’

This could perhaps now be used as a basis for a rights based challenge to the arbitrary
nature of demolitions, which result in the destruction of what little property may be
contained in demolished houses, but again, the chances of success for such a challenge
must be considered low.
Regional Systems for Protecting Human Rights

The applicable regional instrument for the protection of Human Rights is the African
Charter on Human and Peoples’ Rights (1981), more commonly known as the Banjul
Charter on Human and Peoples’ Rights because it was drafted in Banjul, Gambia
(hereafter referred to as the ‘Banjul Charter’). It was adopted at the 18th Assembly of
the Heads of State and Government of the Organisation of African Unity in Nairobi,
Kenya in June 1981 and entered into force on 21 October 1986. Sudan is a party to
this convention.

The Banjul Charter is unique among other regional counterparts in that it deals with
civil and political rights as well as with economic, social, and cultural rights in a
single document, it sets out the obligations of human beings as well as their rights and
it deals with the rights of peoples as well as those of individuals (Lawson, 1996).
Indeed, as Davidson (1993) points out, this is not surprising as it was drafted to take
account of African culture and legal philosophy and is directed towards African needs.

Perhaps as a consequence of the relative weight given to duties as well as rights and in
particular, concentration on the social and economic right to development, there is no
direct protection of shelter or housing afforded to people such as those effected by the
Zagalona incident. However, certain other sections could have been a potential source
of protection. Article 6 guarantees the right to liberty and to security of person. It
clearly states that no-one may be arbitrarily arrested or detained. Article 9 states that
every individual shall have the right to information. This can be assumed, one
supposes, to represent the right to factually correct information, rather than mis-truths.
Therefore, the arrest of the community leaders and the communication of the incorrect
re-location arrangements to the community, it could be argued, were in violation of
the Banjul Charter.

The protection of the right to property is weaker in the Banjul Charter than in the new
Constitution of Sudan, however. While Article 14 of the Charter recognises the right
to property, it is qualified on the basis that the right to property may be encroached
upon in the interest of public need or in the general interest of the community and in
accordance with the provisions of appropriate laws. Therefore, the Sudanese
government could legitimately argue that its actions were in accordance with the
Charter, as the ultimate aim of the re-planning process – to clear squatter areas,
provide better access roads and set out proper planning arrangements for social
services (though in reality, the level of services provided by the Government is
negligible), are in accordance with these precepts.

A possible counter to this clause would appear to be Article 16, allowing every
individual the right to enjoy the best attainable state of physical and mental health. It
could be argued that short notice demolition of homes with no alternative permanent
shelter contravenes the right to attaining the best state of physical and mental health.

The preferred Human Rights Challenge to the Zagalona incident under the Banjul
Charter would therefore have been on the basis of the forced method adopted for the
eviction and the effect of the re-location on the mental and physical health of those
effected, rather than opposing the eviction itself.

The Charter is weak in terms of enforcement mechanisms, however. The Charter does
not, unlike other regional arrangements, set up a court to settle disputes. Instead,
Article 30 provides for the establishment of a Commission ‘established within the
framework of the [Organisation of African Unity (OAU)] to protect human rights’ .
While this commission may accept complaints from individuals, these complaints
must indicate ‘special cases which reveal the existence of a series of serious or
massive violations of human rights and people’s rights’ (Article 58). In the absence of
previous petitions from others similarly effected by demolitions in Khartoum, it is
unlikely that the fate of 300 families would have exercised the minds of the
commission. In addition, even if the commission decided to proceed, its next step is to
present the case to the OAU’s Assembly of Heads of State and Government, who then
decide whether to instruct the commission to undertake an ‘in-depth study’ of the case
and make a factual report and recommendations on its findings. The decision to have
an in-depth study must have a 2/3rds majority. Finally, any such study remains
confidential until the Assembly, again by 2/3rds majority, decides to make it public
(Davidson 1993).

It can be concluded therefore, that while there may have been some grounds to
challenge the process of demolition under the Banjul Charter, the ultimate outcome of
even a successful case would more than likely have had little effect, even as a public
censure to the Khartoum regime.

Universally Applicable International Human Rights Law

Universally applicable international human rights law (as opposed to regional

arrangements, such as the Banjul charter) are equally toothless in terms of
enforcement mechanisms. However, a stronger case can be presented on the actual
violations involved in the Zagalona incident.

The treaty provisions applicable to the case can be summarised as follows:

Article 11, Paragraph 1 of the International Covenant on Economic, Social and

Cultural Rights, recognises the right of everyone to an adequate standard of living,
including adequate housing.
Sudan is a party to this covenant.

Article 5(e)(iii) of the International Convention on the Elimination of All Forms of

Discrimination prohibits racial discrimination in all its forms, and guarantees the right
to everyone the enjoyment of certain rights, including the right to housing. Sudan is a
party to this covenant.

Article 14 , Paragraph 2(h) of the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) gives women the right to adequate
housing to the same extent as men, though it does specifically mention rural as
opposed to urban women, which may weaken its usefulness in this case, somewhat. In
addition, Sudan is not a party to this convention, which further weakens its moral
force over the behaviour of the Government. However, Article 60 and 61 of the
Banjul Charter overtly commits the commission set up under its auspices to have
regard to ‘other instruments adopted by the United Nations’ and ‘international norms
on human rights and people’s rights’. As CEDAW is part of the international
collection of human rights instruments, signed and ratified by many nations, it can be
regarded as an international norm, which the Banjul Charter recognises should be
applied to the conduct of states party to that Charter (including Sudan). Therefore it
could be argued that CEDAW can be considered applicable to Sudan as an
international norm.

Finally, Article 27 of the Convention on the Rights of the Child requires states to
assist children in difficult circumstances and to act in children’s best interests, though,
this obligation is weakened by the phrase ‘in accordance with national conditions and
within their means’, which the Sudanese government could point to as a get out
clause.

In addition, there exists a body of customary law which is applicable. Customary law,
while non-binding, can lend additional authority to human rights arguments.

Article 25 of the Universal Declaration of Human Rights states that everyone has the
right to an adequate standard of living including…..housing.

Resolution E/CN.4/1993/77 of the UN Commission on Human Rights of the 10

March 1994, reaffirmed that every woman, man and child has the right to a secure
place to live in peace and dignity. It affirmed that the practice of forced eviction
constituted a gross violation of human rights, in particular the right to adequate
housing and urged all Governments to undertake immediate measures at all levels
aimed at eliminating this practice. This is the starkest denunciation of forced evictions
available in International Law, and makes it clear, in the opinion of the Commission,
that forced evictions are contrary to basic human rights. However, given the routine
citing of the Sudanese regime itself by the Commission, most recently in Resolution
E/CN.4/1998/67 (where the commission expressed deep concern at continued human
rights violations in the Sudan, including violations of the rights of women and
children), it would appear that the commission holds little weight with the Sudanese
government.

Finally, other international declarations such as the Vancouver Declaration on Human

Settlements, the Declaration of the Copenhagen World Summit on Development and
the Declaration of the Istambul Habitat II World Conference on Settlements also add
to the weight of customary law that indicates that forced evictions constitute a
violation of human rights.

In particular, Section III (8) of the Vancouver declaration sets out adequate shelter as a
basic human right. Article 1 of the Istanbul Declaration endorses the universal goal of
making adequate shelter available for all and in article 7 recognises the need for
women, children and youth for safe, healthy and secure living conditions. Article
26(a) of the Copenhagen declaration places people at the centre of development
process, and in 26(j) promotes respect for and observance and protection of, all human
rights and freedoms for all, including the right to development. The combination of
these articles could be used to counter a Sudanese argument that the demolitions
constitute a greater good as part of the urban re-planning process for greater
Khartoum.

It is clear from the above that under international law there are no clear grounds for
objecting to the eviction of people from land to which they have no legal title.
However, the method of eviction adopted and the effect the eviction has, given the
failure on the part of the government to provide adequate alternative shelter, clearly
contradicts international human rights law. The lack of an adequate enforcement
mechanism creates a dilemma, however. In responding to this dilemma in the current
context, the international community adopted an engagement approach with the State
Ministry for Housing and Urban Planning, and in particular the State Minister himself,
Mr. Banaga.

Strategy Adopted and Ultimate Outcome

The previous August, a briefing meeting had been held under United Nations auspices
by Mr Banaga to clarify his intended re-planning process for the coming year. The
Zagalona incident was the first re-location post meeting. The briefing was attended by
both INGO and donor representatives. This signalled the beginning of an attempted
engagement process with the state ministry. It allowed those present to obtain a clearer
understanding of the rationale behind the re-location process and signalled the
recognition by the state ministry of the legitimacy of the international communities
interest in this process.

This opening was crucial in that it allowed the international community to bring direct
pressure to bear when the facts of the Zagalona re-location became known. The first
step in this process was obtaining clear information – the mobilisation of INGOs on
the Friday was crucial in this respect. A key component in this process was the
presence of an INGO staff person with a particular competence in human rights, and a
UN monitor familiar with the locality. The INGO person was familiar with the
principles of human rights protection and was able to access further expert advice.
The presence of this competence in the structure of an INGO concerned primarily with
providing emergency relief assistance must be seen as a progressive step in the
process of integrating human rights protection and the provision of emergency relief
and is in accordance with the policy of that organisation (See report reference below).

Based on the information obtained on the Friday, and as much as was possible, further
information received, national ambassadors were mobilised to be available to observe
any potential forced eviction. Donor representatives raised the issue in meetings with
government officials, as did UN officials with the relevant Ministry. The INGO
community acted as a conduit for information and a pressure mechanism on both the
donor community and the UN. These immediate measures were successful in delaying
the planned evictions and ultimately saw a change in policy from the state ministry,
who made it known that the residents would now be re-located to a settlement area
and given title to the land.
INGOs, in following up on this commitment, wrote a joint letter to the State Minister
expressing concern at the lack of clarity in the re-location process, and stressing that
the allocation of land to those being re-located was essential in all such re-planning
processes. The letter cited three international documents – the Banjul Charter, the
International Covenant on Economic, Social and Cultural Rights and the Convention
on the Rights of the Child in making the point that it was the responsibility of the
Government of Sudan to provide essential services for its citizens.

Having secured what in the context of previous experience of the re-location process
(and indeed, of relief provision in Sudan in general), was a small victory, INGOs
proceeded to provide emergency assistance in the form of shelter, food, water and
later sanitation services to those re-located to what was an open unserviced desert site.

Conclusions

The protection of human rights in a long term complex political emergency, in a

country still in the middle of a vicious civil war, with a government that is regularly
cited for human rights abuses by the international community, is an extremely difficult
task. The lack of meaningful enforcement mechanisms in either regional or generally
applicable international human rights law makes this doubly difficult. Nonetheless,
the existence of this body of law does set a standard to which the conduct of states can
be judged with some degree of objectivity. Knowledge of this body of law is of use in
supporting stances taken in these environments against particular policies of the
authorities.

However, in seeking to secure a better outcome for the people effected in this
instance, it is clear that the process of engagement with the relevant authorities was
important in that it allowed communication and pressure to be brought to bear on the
actual decision maker to mitigate his policies somewhat. Close co-operation between
INGOs, the UN and donors facilitated this process. Nevertheless, the onus fell on
INGOs to subsequently respond to the needs of these people post re-location. The
victory amounted to an assurance that they would not be subsequently re-located
again. A small victory indeed, given the magnitude of the problems faced by the 1.9m
displaced of Khartoum. A worthy one nonetheless.
List of Constitutions, Statutes, Statutory Instruments, EC Treaties and
Legislation, and International Treaties and Conventions.

African Charter on Human and Peoples’ Rights (1981) (also known as the Banjul
Charter on Human and People’s Rights).

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Rights of the Child

Declaration of the Copenhagen World Summit on Development (1995)

Declaration of the Istanbul Habitat II World Conference on Settlements (1996)

Draft Constitution of the Republic of Sudan, Published April 1998 (English Language
Version).

International Covenant on Economic, Social and Cultural Rights

International Convention on the Elimination of All Forms of Discrimination

Resolution E/CN.4/1993/77 of the UN Commission on Human Rights.

Resolution E/CN.4/1998/67 of the UN Commission on Human Rights.

Universal Declaration of Human Rights

Vancouver Declaration on Human Settlements (1976)

Bibliography

Books:

Davidson, Scott (1993) Human Rights, 1st Edition, Buckingham: Open University
Press.

Lawson, Edward (1996) Encyclopedia of Human Rights, 2nd Edition, London: Taylor
and Francis.

Reports:

Final report of the Conference on the Co-operation between Humanitarian

Organisations and Human Rights Organisations, held in Amsterdam, 9 February 1996.
Organised by Medicins sans Frontieres.
Unpublished Sources:

Doebbler, Curtis: Untitled letter to INGO representatives concerned with the Zagalona
re-location, Khartoum, September 1997.

Various internal INGO documentation related to the Zagalona incident and the authors
own direct experience of the discussions and actions that took place at the time.