When former Vice President Joe Biden won the election following four tumultuous years under President Donald Trump, the Sudanese government and people had one single question in mind: what would become of the American-Sudanese deal to remove Sudan from the US State Sponsor of Terrorism list (SSTL) after 27 years of suffering from being on it? Subsequently, how will the future of the deal define the relationship between the United States and Sudan once the Biden Administration takes office in January 2021?
The US-Sudan Agreement
There are three main elements to the US-Sudan agreement that was reached in October 2020. First, the United States will delist Sudan from the SSTL when Khartoum deposits in escrow $335 million to be paid as compensation to American victims of terrorist attacks for its responsibility (which Khartoum denies) in Al-Qaeda bombings of the US embassies in Kenya and Tanzania in 1998 and the USS Cole in 2000. Second, the United States Congress must pass legislation restoring Sudan’s sovereign immunity, a shield against future legal claims for past attacks once it pays the compensation. Third, the Trump Administration––albeit unofficially––linked delisting Sudan from the SSTL to its normalization of relations with Israel, which the transitional government in Khartoum still considers contingent on the approval of a so far unformed parliament.
The first stipulation in the agreement has already been met. On October 23, President Trump notified Congress of his intent to rescind Khartoum’s placement on the STTL, and Khartoum deposited in escrow the $335 million. On December 14, the period of 45 days Congress has to review the decision ended, making the rescission official. On the other hand, Khartoum reluctantly agreed to normalize ties with Israel but only if fully released from any future liability from terrorism-related lawsuits, which took place on December 14.
To be sure, as things stand today, the second and third elements of the deal are the hardest complicating factors. How things unfold and whether the deal will bring stability and prosperity to Sudan depend primarily on the ability of the United States (whether before Trump leaves the White House or under a Biden Administration) to keep its side of the bargain.
How things unfold and whether the deal will bring stability and prosperity to Sudan depend primarily on the ability of the United States (whether before Trump leaves the White House or under a Biden Administration) to keep its side of the bargain.
While rescission of the State Sponsors of Terrorism designation does not require congressional action––i.e., there is no need to pass a bill in both chambers for it to take effect––restoring Sudan’s sovereign immunity, under the Foreign Sovereign Immunities Act, will need a bipartisan bill. This may not happen if Senate Minority Leader Chuck Schumer (D-New York) and Senate Foreign Relations Committee ranking member Bob Menendez (D-New Jersey) decide eventually not to back the bill under pressure from their constituents. Efforts to secure congressionally approved immunity for Sudan are still underway, with Israel aiding the effort. However, action on Capitol Hill is far from certain.
On December 9, Senators Menendez and Schumer released a joint statement on negotiations with the Trump Administration on legislation to restore Sudan’s sovereign immunity. They offered two legislative options (in a potential Sudan Claims Resolution Act) to restore Sudan’s sovereign immunity, preserve and protect the claims of the families of the September 11, 2001 attacks, and resolve the embassy bombing and other international terrorism-related claims against Sudan. The two versions are substantially similar and pushing either draft resolution through Congress will halt the decision to restore Sudan’s sovereign immunity. Sudan Claims Resolution Act suggests incorporating a number of changes to the deal which the US State Department cut with Khartoum in October and offers conditional legal immunity if certain conditions are satisfied in full. One of these proposed changes is that Sudan would not be allowed to veto any exception, carve-out, or limitation relating to the settlement. The proposed Sudan Claims Resolution Act includes alternative text to rescind this veto.
It should be remembered, however, that removing Sudan from the SSTL and resorting its sovereign immunity are crucial for the country’s political stability. American sanctions have crippled the country’s economy and barred financial assistance and foreign investments from institutions like the World Bank. Perhaps the American announcement that the United States will provide wheat and other commodities over four years as well as some debt relief to Sudan is a step in the right direction. To be sure, there is an urgency to reach a deal in the US Congress, one way or the other. However, the price of any deal cannot be paid by the Sudanese people. The no-deal scenario may be the final nail in the coffin of Sudan’s fledgling democracy and it would send the wrong message to the Sudanese people.
Hope with Joe Biden
Biden’s election brings hope to Sudan and other nations, that the new administration will restore political normalcy and approach things differently. Having a political transition in a country like Sudan in order to achieve stability by supporting a civilian-led government requires more than merely removing the country from the SSTL. Sudan needs political and economic support.
The Sudanese people have overthrown three military regimes in their modern history, but one of the main challenges for them has not been overcoming dictatorships or totalitarian rule but how to consolidate democracy once secured, sustain it, and establish a set of norms and traditions that can genuinely shield it. Over the years, how to appreciate and safeguard institutions that political actors have created to actively participate in transitions from authoritarian rule has been a major failure of the Sudanese.
The Sudanese people have overthrown three military regimes in their modern history, but one of the main challenges for them has not been overcoming dictatorships or totalitarian rule but how to consolidate democracy once secured.
The Sudanese and many regional and international actors have had an overarching concern about whether the December 2019 Revolution can succeed in establishing democracy in Sudan and avoid the country’s history’s curse of reversion to authoritarianism. Sudan’s current democratic transition is full of pitfalls and transitions are not supposed simply to be smooth and easy. It is easy to blame military coups for democracy’s failures when officers refused to allow it to mature enough and crystalize to form self-efficient and vibrant democratic institutions. To be sure, it is fair to assume that Sudan’s military this time around may not eventually cede power to any civilian elected government, despite the stipulations of the current arrangement between the generals and civilian leaders. Nevertheless, there is also the other side of the coin. Sudanese may have failed their democratic transitions by failing to accede to their legitimacy and the processes they create. It is important to remember the lessons of history as relevant to the current transitional period, for the argument is simple: those who cannot remember the past are condemned to repeat it.
A Biden Administration will have to urge political actors to adhere to Sudan’s constitutional charter for the transitional period and to ensure that free, fair, and credible democratic elections are conducted at the end of the transitional period. Facilitating an environment for democratic elections needs reconciliation and comprehensive and sustainable peace. The Biden Administration will have to engage with the transitional government in Khartoum to support the peace agreement signed on October 3rd in Juba, the capital of South Sudan between the Sudanese government, the Revolutionary Front (a broad alliance between armed movements and other powers), and the Minni Minawi wing of the Sudan Liberation Movement. The Juba Peace Agreement did not include the Sudan People’s Liberation Movement-North (led by Abdelaziz al-Hilu with whom past negotiations have faltered and because of his demand of secularization and separating religion from the state), and the Sudanese Liberation Movement under the leadership of Abdel Wahid al-Nur (which refused to join the Juba peace talks, arguing that they did not address the root causes of the crisis in Sudan). When the Biden Administration takes office in January, it will have to tackle these issues and ensure a comprehensive peace agreement is reached in Sudan. Without such an agreement, it will almost be impossible to begin a meaningful constitution-making process in the country.
The new US administration will have to support the Sudanese in their quest for a civil state that does not disavow religion but rather allows for a political space where all religions are treated equally.
The new US administration will have to support the Sudanese in their quest for a civil state that does not disavow religion but rather allows for a political space where all religions are treated equally. The foundation of the civil state is the citizen. The Sudanese people cannot be ruled by religious men, military officers, or any higher apparatus that is not elected outside the framework of an agreed-upon social contract that is protected by strong institutions. This requires building the institutions and the state’s civil and military apparatuses upon legal frameworks that allow them to carry out their functions in a manner that integrates their roles without the influence of loyalties and patronage. It is thus vital to push for civilian oversight over, and professionalization of, the Sudanese security and intelligence services alongside strengthening accountability for human rights violations and abuses, corruption, and other forms of malfeasance. This reform agenda will help the country arrive at political stability without falling into the trap of building modern institutions that are utterly devoid of their institutional objectives.
On the economic front, the United States would do well to take steps to engage its international partners to reduce Sudan’s debt burdens, including advancing discussions on debt forgiveness consistent with the Heavily Indebted Poor Countries Initiative. The United States will also have to commit to multi-faceted economic assistance for Sudan. This, undoubtedly, requires promoting economic and regulatory reform, private sector engagement, and inclusive economic development while combating corruption and illicit economic activity, including that which involves the Sudanese security and intelligence services. One should note that part of a 12-month reform package worked out with the International Monetary Fund in June 2020 is that the transitional government in Khartoum takes control over all state entities, including ones owned by the security forces, which is one of the toughest challenges of the transition in Sudan. Ownership, complete oversight, and transparency over all state-owned enterprises in Sudan are a must and a prerequisite for any sustainable economic reform in the country.
The ”Sudan Democratic Transition, Accountability, and Fiscal Transparency Act of 2020” (SDTAFTA) is incorporated in the 2021 National Defense Authorization Act (NDAA). The US Senate has overwhelmingly passed the NDAA by a veto-proof vote of 84-13 after the House of Representatives passed it on December 8 by an equally strong majority of 335 to 78. The bill is a step in the right direction and shows the US commitment to support the transition in Sudan to a civilian-led democratic government. The bill authorizes, amongst other things, assistance for democratic governance, the rule of law, and human rights. It also supports free, fair, and credible elections and long-term peace and stability in Sudan by authorizing assistance for conflict mitigation, including efforts to strengthen civilian oversight of the Sudanese security and intelligence services.
How a Biden presidency could help democratic transition in Sudan does not solely rest with the United States or with its influence to engage the international community in supporting civilian-led government in the country. The Sudanese also have a pivotal role to play. There is no guaranty that democracy will survive in Sudan; to be sure, democracy is not so much a form of government as a set of principles. Relying on constitutional norms does not necessarily establish democracy. What is essential is that political actors in Sudan need to routinize, institutionalize, and normalize democratic practices which is a collective effort. In other words, the Sudanese have to show a commitment to sustainable democracy so that their country may receive the support it so deserves from the United States and the international community.
Abdelkhalig Shaib is a Sudanese attorney and member of the American and New York Bar Associations. He
holds LLB, LLM (Khartoum University), and LLM (Harvard University) degrees. He was a visiting researcher at Harvard Law School in 2011-2012. He is a founding member of the Arab Association of Constitutional Law.