Myth Making and the

Collision of Rights

Myth Making and the Collision of Rights:
Law and Development in Sudan

Mark F. Massoud[1]

[DRAFT: DO NOT CITE WITHOUT PERMISSION]

Table of Contents

Introduction...... 2

Methods......

Qualitative Interviews...... 4

Ethnographic Field Research...... 5

Analysis...... 5

Rights in Context......

Rights and the International Donor Community...... 8

Legal Awareness Workshops Funded by Foreign Donors...... 11

Local Awareness of Rights......

The Collision of Rights...... 23

Consequences of the Rights-based Approach...... 24

Consequences of Funding Relationships......

Advantages of Legal Awareness Workshops......

Conclusions......

“In the end, it will all come down to rights [and] who has…rights.”

-Sudanese women’s rights activist,[2] when asked to comment on the country’s prospects for a sustainable peace

Abstract

This paperanalyzes the tension between the grassroots, individual perceptions of rights in Sudan and the international donor community’s way of promotinghuman rights. To do so, I use data gathered fromover 150 interviews with key legal actors in Sudan and extensive field research in camps for people displaced by that country’s 23-year civil war and the ongoing crisis in Darfur.

My theoretical base comes from literature that focuses on how American interest groups use domestic laws or how social movements in foreign countries mobilize local laws. I broaden that work by developing a critical, qualitative, and interdisciplinary inquiry about failed states. Findings evidenced by my empirical work – systematic data collection, coding, and analysis – also promise to build on and contribute to and challenge critical legal theory.

Ultimately, this paper shows how internationally funded rule-of-law or human rights projects in the global South help to provide an education and psychological benefits to marginalized populations. But these same human rights projects perversely create and sustain a disillusioning myth of rights that provides leverage and legitimacy to the government that the civil society seeks to de-legitimate.

Introduction

International aid groups claim the rule of law is essential to maintaining a stable, democratic state. It is a challenge to arbitrary exercises of state power. But how is the rule of law developed in volatile states rife with violent conflict, when the identity of the state itself is in question? And what results when different conceptions of rights collide, between individuals in such an unstable state, and the international community of donors that promote and fund rights-based rule-of-law projects for these marginalized people? Further, what does this collision of rights mean for international development strategies?

This paper investigates this socio-legal research question using a triangulated research methodology: multi-archival research in Sudan, 151 qualitative interviews with key actors in the Sudanese legal landscape, and ethnographic observations in camps for internally displaced people. What I find is that human rights provide a resonant language for oppressed people to talk about the issues they face. The discourse of rights is psychologically liberating from the oppression that a displaced victim of war – a religious or ethnic minority – experiences in daily life. That is, human rights is a globally salient language, freeing people like those forced to flee Darfur to recall their individual dignity as human beings worthy of respect.

However, rights frames can imprison as much as they can also emancipate. That is, training people to understand rights – specifically their human rights, which authoritarian regimes in divided societies by their nature thrive on violating – risk putting in harm’s way those trained by Sudanese NGOs in internationally-funded“legal awareness workshops.” Rights mobilization increases their visibility to a military regime sensitive to losing authority, should they seek to speak out about rights of which they are newly aware. As the preferred “grassroots” strategy to build the rule of law, these workshops make a salient, transnational language accessible to locally disadvantaged persons. But because they are rooted in the narrow language of rights, they also create abstractions by masking specific grievances, ultimately also calling into question local deeply held religious values.

As I hope this paper will also show, because of considerable constraints, it is unclear that training people to understand their rights in a deeply divided state will ever lead to actual mobilization of those rights, either by shaming governments into compliance or by taking controversies to court, as the strategy would seem to suggest. While the strategy succeeds in linking local communities to important and prominent transnational norms, legal awareness workshops also risk becoming an inventive form of symbolic myth making that people’s dire situations can substantially improve through a better understanding of rights.

To investigate this important and practical question of the different perceptions of rights in the international donor community and in Sudan, I divide this paper into the four sections that follow. First, the papernarrates the methods I chose to address my research inquiry. Second, the paper considers existing scholarly literature on rights. The literature offers important conclusions, but those must be placed in context: Scholarship comes primarily from research conducted in established or struggling democracies, where rights can at least be rooted in a common political discourse of usually nonviolent and non-sectarian pluralism and competition. Third, the paper sketches the international donor community’s vision of rights mobilization by poor people in conflict-ridden societies, and those “legal awareness workshops” to build the rule of law through that vision. Fourth, the paper contrasts this international vision with local perceptions of rights in the context of the volatile state within which rights are to be mobilized. Using data gathered from interviews conducted in Sudan with, among others, war-displaced persons, civil society activists, lawyers, and senior members of the judiciary, that section makes the important claim that a diversity of meanings of rights – and, thus, constraints to the singular form of rights mobilization pushed by the international community – exists in Sudan. Finally, the paper concludes with remarks about the consequences of this collision of rights.

Methods

I traveled twice to Sudan for this project – first in 2005, conducting preliminary field research under the United Nations Development Programme’s Rule of Law Unit, and again in 2006-07. I use an innovative mixed methodological approach that is top-down (analyzing international and government-led legal projects throughout the Sudan) and bottom-up (analyzing how non-governmental organizations work to build the rule of law in an unstable environment). My methods are threefold: Interviews; ethnographic field research; and systematic computer-aided analysis of my interviews, field notes, and archival materials.

Qualitative Interviews

To evaluate the state’s historical relationship with law and grassroots perceptions of rights, I gained unparalleled access to former top government and military officials including prime ministers, chief justices, judges of the Supreme Court, business and opposition leaders, and civil society activists. I recorded 151 interviews with these people.

I initially locatedinterview subjects through the friends and colleagues of national staff at the United Nations, where I had been in 2005. I employed a snowball sample, asking each interviewer to name others whom each thinks I would benefit from speaking. Later, as I got to know the universe of activists by attending conferences and workshops and getting to know different organizations, I contacted people directly. A snowball sample was important in a place like Sudan, where trust is built on relationships and who “sends you” to someone else.

I am proficient in Arabic, and I conducted most of my field research and interviews in that language. Conducting interviews in native languages proved crucial for this project to break down barriers between interviewer and subject.

I asked civil society activists and lawyers about their motivations for working in law-related aid activities. They told me why they conducted legal awareness workshops in the internally-displaced-person (IDP) camps or in villages in outlying rural areas, obstacles they have faced, and what the outcomes of their efforts have been. I validated their responses by asking those who attended the workshops to tell me where they felt rights came from, and what rights meant to them. I also asked them to tell me what they understood of human rights from the workshops they attended, and what – if anything – they have done with the information they learned, including by changing their behaviors or sharing their knowledge with others. Interviews with these persons also enabled me to get a sense of the constraints and risks in learning or speaking about rights. Prior to going into these meetings, I hypothesized that cultural norms and differences would play an important role in shaping the extent to which different groups of people adopted rights-based strategies to frame their grievances. Understanding these cultural codes helped me to interpret the variety of perceptions of and behaviors around “rights” in Sudan.

Ethnographic Field Research

I supplemented my interviews with ethnographic fieldwork in desert camps for displaced persons from the civil war, and observations of legal awareness workshops in these camps where displaced people live in dire poverty. Before it became dangerous for me, I was able to visit 15 of these workshops in the IDP camps normally off limits to foreigners. These workshops are described in detail below.

In addition to these field visits, I also sat in on action meetings of organizations, and copied any available materials from them, to learn about their strategies and how they think about and communicate knowledge of rights, and human rights.

Analysis

I have translated my data and field notes into English and digitized them, resulting in over 2000 single-spaced pages of data. I coded my interviews using more than 300 searchable categories that I designated, and analyzed data using the TAMS Analyzer software package. Interview codes separate actions and rhetoric and classify them into openings for and constraints on rights mobilization. Computer software has allowed me to create linkages between literature reviews, archives, institutional analyses, and ethnography.

Rights in Context

There have been few studies of how law is experienced on the ground in deeply divided societies, and the role of the international donor community in changing or reinforcing these lived experiences of law. This paper aims to begin that exploration. In a marked departure from traditional “rule-of-law” studies that take a top-down approach to focus on developing democratic institutions and independent judiciaries that comply with rule-of-law principles, this paper takes a grassroots approach by examining the rule of law from the perspective of its recipients and their views of rights at a local level.[3]This approach to interrogating rights in Sudan draws on extant studies of rights in democratic contexts.

Existing law and society research has shown that rights are a commonly deployed meta-frame[4] in claim-making rhetoric in the advanced, industrialized world – that, for example, law and rights have a symbolic value in political discourse or in organizational settings.[5] In many of these examples, rights are to be mobilized by injured persons or groups with considerable resources, and rights revolutions begin with institutionalized support structures, advocacy groups, and a robust and independent bar, judiciary, and legal academy – rather than through particular changes in laws.[6]

The critical legal and critical race movements have also taken center-stage in this discussion about the value of rights discourse and framing. On the one hand, critical legal scholars have described rights frames as socially constructed.[7] While rights are a convenient vehicle for social change groups, they are a divergence from solving problems in the democratic political process.[8] Some have argued that the prevalence of negative rights (e.g., voting, speech, religious practice, freedom from slavery) is an ideological barrier to positive rights in America[9]. On the other hand, critical race scholars in America have contributed to the debate with critical legal scholars on the extent to which rights are valuable by arguing that rights (and the rhetoric of equality that comes with them) are a way for minorities to be placed on level playing fields with non-minorities.[10]

These conclusions have come primarily from research conducted in democratic contexts of claim making, particularly the U.S. and the nations of Western Europe, amongst the world’s robust democracies. That is, these studies examine relatively stable states, those not currently at risk of civil war or violent break-up. In stable states, rights form part of a common political and legal discourse, and thus provide a resonant mechanism for social groups or movements to frame their grievances against, for example, government, employers, or landlords. Research also suggests that human rights, as one distinct form of rights, can create a psychologically liberating framework for marginalized individuals in democratic societies.[11]

But what of the authoritarian regime, which tends to be at best hypersensitive, and at worst openly hostile, to rights expressions – a regime that thrives on violating human rights? What little we know of how law functions in authoritarian regimes focuses on courts and legal institutions and the role of courts in protecting private property rights to encourage and secure foreign direct investment.[12]What this paper shows, instead, is how individuals living (if one can call it that) under these regimes experience law through the interaction of their local culture and the international human rights donor community.

This donor community, active within a number of authoritarian regimes, has consciously adopted a single, common “rights-based approach to development” that involves building what they call the rule of law.[13] Hundreds of millions of dollars are pumped annually into rule-of-law projects worldwide.[14] And while the projects have diverse strategies – including, where possible, training judges, police, and members of parliament on human rights, along with limited funding for some legal aid programs – the bedrock of these programs comes in funding provided to local, grassroots NGOs to train poor people to understand their rights. This following sections set out a bold argument for the full range of consequences of developing the rule of law in volatile states through these foreign-instituted strategies.

Rights and the International Donor Community

The international donor community, specifically the United Nations and its agencies, has consciously chosen what it has labeled a rights-based approach to the development of the rule of law in post-conflict settings and unstable states such as Sudan.[15]This approach is designed to outsource the work of the aid community to local NGOs, with the goal of building capacities of these NGOs and of poor people, first, to recognize, and second, to mobilize their legal and human rights vis-à-vis their governments. Rather than “training” lawyers or judges or focusing on law schools, aid agenciesare giving money to local NGOs to educatepoor people, usually displaced by war or ethnic conflict, on international human rights standards. As such, the new language of development has become law, and the law of development has become human rights.

The “rights-based approach to development” takes shape as workshops with marginalized individuals to build their awareness of law and their understanding of rights, particularly human rights. This is a model of development designed to create the mental structures necessary for liberation, by educating the oppressed to be aware of and to use the language of law and rights against their governments.

This rights-based approach is rooted in specific human rights declared by and entrenched in United Nations treaties and conventions.[16] “Equally important [to international support for building national protection systems in Darfur] will be human rights-based development cooperation across all sectors,” says the United Nations’ Human Rights Council about Sudan.[17] The UN Development Programme’s program manager on rule of law for Darfur during the height of the humanitarian crisis there concurs: “The objective [of legal awareness trainings] is not only to raise general awareness about the rule of law and human rights but also to change attitudes and mindsets, to build confidence and promote reconciliation, and to instill again in Darfur a sense of doing what is right – based on local custom, international standards, and universal ethics.”[18] According to the former director of the UN Development Programme’s Rule of Law Unit, in Khartoum, building the rule of law through a rights-based approach is strategically important in order to engage state and non-state actors in Sudan:

The UN’s work to strengthen the rule of law in Darfur beganwith sensitization, dialogue, and awareness-building about the rule of law with a large spectrum of actors – government, military, and civil society leaders, as well as the IDPsthemselves. This helped to establish credibility with the IDPs and also gave UNDP access to various government institutions. The second step was establishing legal aid centers,empowering IDPs as paralegals to identify violations in the camps with the support of international rule of law officers and legal aid centers located inside the camps, so to ensureprotection. The third step was to engage full-fledged Darfurian [sic] lawyers to represent casesbefore the courts.[19]