Ending Impunity- UNDP's Legal Aid Programme in Darfur
Women and girls continue to suffer from widespread insecurity in the conflict-ridden region of Darfur. For 13-year old Aisha, her childhood ended when she was brutally raped by an adult man while on the way to the market of the small town of Garssila, in former West Darfur, now Central Darfur.
Unfortunately Aisha’s case is not an isolated one. As law enforcement structures in Darfur have insufficient capacities and incentives to uphold and protect human rights, crisis-affected populations in Darfur continue to remain vulnerable to arbitrary violence and deprivation of physical, material and legal safety. Women and girls face the daily threat of sexual violence. Given the lack of adequate and responsive law enforcement in the region, women in particular are reluctant to seek justice and file complaints against attackers. Aisha’s story shows why. Defying prevailing stereotypes and social taboos Aisha’s family took the case to the local court in town. The court however, dismissed the rape case and convicted the young girl of adultery with a punishment of hundred lashes after delivery of her baby.
Shocked by the court’s ruling, the family turned to UNDP for support. In September 2004, UNDP Sudan embarked on an ambitious Rule of Law Programme in Darfur. With funding of over USD 15.3 million available from DFID, Sweden, Norway and the Netherlands, the project aims at raising awareness of human rights and rule of law among the vulnerable populations; empowering local stakeholders to actively engage in preventing and bringing an end to existing violations of international standards; strengthen the capacities of and restore confidence in informal and formal rule of law institutions; and gradually building a culture of rule of law and justice in the region.
As part of the programme, UNDP supports local right groups to strengthen protection and access to justice as the community level in the region. Since the start of the programme UNDP has successfully supported the establishment of eight Legal Aid Centers as well as a Legal Aid Network of over 60 Darfurian lawyers. Through the Legal Aid centers, paralegal volunteers provide free legal advisory and mediation services at the community level. In case further legal assistance is required, cases can be referred to lawyers from the Legal Aid Network, who with the support of UNDP Sudan, provide free legal advice and representation to crisis-affected populations. UNDP Rule of Law Officers on the ground continuously monitor the referral of cases and the quality of the court representation and provide technical advice and guidance as required.
In the case of Aisha, UNDP legal aid lawyers immediately filed an appeal to the General Court in the town of Zalingei, arguing that the age of the girl and the fact that she was raped should reverse the decision of Court of Garssila or annul it at least. However, the General Court upheld the ruling of the local court. Determined to support the girl’s fight for justice, the lawyers took the case to the West Darfur State’s Appeal Court in the state capital of El Geneina, where the conviction was upheld but the sentence was mitigated to ten lashes. As the ruling was still incompatible with both national and international standards pertaining to the Rights of the Child, the legal aid lawyers addressed the Sudan High Court, the highest appeal court in the country. After lengthy deliberation the Judges of the Court issued a remarkable landmark verdict, quashing all previous verdicts and acquitted the girl of all charges.
In its reasoning the High Court of the Republic of the Sudan stated that it did not agree with the Appeal Court’s decision that signs of maturity, including the pregnancy of the accused, constitute a ground for criminal responsibility rather than her age which goes against the provision of the Child Act of 2004. Having established that the crucial factor is age and not maturity, the allegation of the accused that she had been raped is sufficient, according to the Islamic jurisprudence to lift any sentences against her. Although the decision did not go as far as incriminating the perpetrator, it changed the concept of juvenile criminal responsibility in Sudan and opened the door for a retrial should the family of victim wish to do so and gave hope to the many women and girls who face rape and sexual violence on a daily basis.
Access to justice remains challenging for large parts of Darfur’s population due to a deep mistrust among the local population of the very institutions that are tasked with ensuring their safety and security, continuing harassment and violence, severe capacity deficits, complex bureaucratic procedures, high costs and pervasive corruption. Against this background, legal aid initiatives such as the one supported by UNDP Sudan remain an important element of development support in the region. The demand for the legal aid services is growing. “Over the years, we have witnessed a steady increase in requests for legal support by community members,” says Christopher Laker, the regional programme manager for the project. Since 2007, the Legal Aid Centers have provided legal advisory and mediation services in over 3,500 cases and the legal aid lawyers have provided free legal assistance and representation in over 1,070 instances. In addition, over 15,000 community members are reached through targeted human rights awareness raising campaigns per year.
UNDP’s support to providing legal aid enhances the capacities of affected individuals, such as Aisha, to deal with these constraints and ultimately enhance the potential for swift, fair and impartial administration of justice.