why do I remain optimistic about the AU Panel? Partly it’s optimism of the will–something has to come, and come soon, or Sudan as a whole is heading for a crisis of bigger proportions than anything seen recently. Time is very short and we need to make do with what is available now. There’s no time for another inquiry or commission or panel–by the time it reports the events it is concerned with will have happened. At the moment UNAMID is without a head, and the head of UNMIS is leaving in a couple of months, without even a deputy in post. At least something is happening in Doha and there is a chief mediator in place. In the international system it can take months to make a senior appointment (remember the 10-month hiatus after Jan Pronk was expelled? The 8 month gap between the Sirte talks failure and Bassole’s appointment?) So we have to make do with what we have–and three former heads of state with a pretty good grasp of the situation and a formidable convening power at an international level is a good place to start.

Which brings me to the second point. Most reports of this kind are just that–reports. The focus of the commissioners or panellists is on getting a text and getting a formal adoption. From the beginning, Thabo Mbeki has insisted that a report is valueless unless it is implemented. He is a political operator and a man who has headed party and state institutions and is used to getting things done. The report is an instrument, not an objective–like an iceberg, most of it is beneath the surface. And what I know about what’s beneath the surface is reason for (rather modest) optimism.

I share your (and everyone’s) concerns about the AU and its follow-up or implementation capacity. I was part of the Abuja mediation team and I well recall the discussions in the final days of the talks about the need to keep up the momentum, not let anything drop. I then found myself literally alone among the team in continuing to talk with Abdel Wahid, and also all-but-alone in trying to convene the institutions that were supposed to make the security arrangements function (for the last 3 months of the talks I had worked exclusively on that). And I was just about the only one who advocated publicly for the DPA. I advocated for it not because I was convinced about every part of it (I knew better than many its shortcomings and was probably the member of the mediation team least happy with the document) but because I was convinced that if it failed, there wouldn’t be another chance for Darfur for five years (I am waiting to see if that was accurate) and that the CPA would be endangered too. There wasn’t a better deal on the shelf just waiting for someone to wave a magic wand, so better to try with what we had. Optimism of the will–and I don’t regret it, although I paid a high price in being so publicly identified with a failed effort. And I can assure you that I found the AU’s capacity in rising to this challenge to be less than satisfying. Ditto, I should add, the other ‘guarantors’ including the U.S.

Do I expect the recommendations to be implemented as spelled out? Not at all. Is it a chance to make something happen that has not been happening to date? Yes. As I have written before, the odds are against. That’s not a reason to stop trying.

The reason Sudan is so comfortable with the AU is that they believe they are easily manipulated and they never made that a secret.

To be extremely frank you are the only one I came across with so much enthusiasm about the AUPD report. I have seen statements by the SPLM and AbdelWahab Al-Afandi and others saying the proposals made on the hybrid courts are unrealistic and are only good on paper. For a starter, it takes a political will on the part of Khartoum and this is non-existent. Moreover it also requires an admittance of atrocities committed in Darfur by the government and that will never happen.

I sincerely wished I could share your optimism Alex but so far I see no reasons to. I will restate my position. The report has reached a dead end.

The Mbeki report didn’t make a splash but it is having an interesting effect.

The report came at a big moment for news in Sudan. For the last two weeks the big story in the Sudanese newspapers has been the rift in the Govt of National Unity between the NCP and SPLM and the threat of secession. There is no bigger story in Sudan and just about every newspaper every day has been dominated by this. Story number two has been US policy and number three is the Mbeki Panel.

Thumbing through the papers this is what I find. On 25 October Sadiq al-Riziqi who is the owner of Al-Intibaha the most strident paper against the SPLA and the Darfurians, rejected the Panel and especially the hybrid courts proposal. Al-Riziqi is exceptionally well informed about the goings on in the inner circles but he has his own views too. For the ordinary citizens of Sudan, al-Riziqi’s rejection is a good endorsement! But read the same paper three days later and we see a columnist hinting that if the procedures in the hybrid courts are correctly done then the NCP will accept.

This is pretty much the double line taken by other well-known columnists too. Ahmad Al-Sharif (Al-Watan) lambasts Mbeki’s report as targeting national sovereignty and going beyond its mandate by putting into question the competence of the Sudanese judiciary. Kamil Idriss (formerly of the World Intellectual Property Organisation) in Al-Sudani, says that the idea of hybrid courts strike to the heart of the credibility of the Sudanese judiciary and is a humiliation. But read carefully what others are writing. One government spokesman, writing in Al-Ahdaf on 1 November, says that ICC Prosecutor’s welcome of the Panel’s proposal for hybrid courts should be bracketed: any mechanism set up in the wake of the AU decision will proceed without reference to the ICC. That is a way of setting the Mbeki recommendations apart from the joined-up three pillar process that the ICC is helping to set up in Kenya. In the Kenyan case, the ICC is joined at the hip to the hybrid courts and so also to the local courts, but this isn’t the case for the Darfur proposal. And most interesting, the leading Islamist Tayib Zain Al-Abdeen, writing in Al-Sahafa on 2 November advised the NCP to accept the hybrid courts proposal, saying that its own failure to prosecute anybody gives it no credibility to object, and it also cannot accuse the African Union of being a colonial conspirator.

One of the best commentaries was done by Khalid al-Tijani, for Al-Sahafa. He put his finger on the government’s basic dilemma. On the one hand, Khartoum cannot reject the Mbeki Report because any such action will threaten the cohesive African stance supporting Khartoum’s position on the ICC, while on the other hand the acceptance of the report would equally conflict with the latter’s principled rejection of the intervention of the ICC. This puts the front men for the government policy in an awkward situation and luckily the two men in question, Ghazi Salah Al-Din and Ali Osman Muhammed Taha are able to exercise self-restraint and avoid either outright acceptance or outright rejection, playing the game of watering down the recommendations in the implementation stage.

Read between the lines: the government is in a corner and can’t get out easily.

While its true that in the past, when Khartoum says no it is not always final, but this issue is different. The hybrid courts and changing laws means the government has to prosecute itself and their allies and effectively acknowledge the shortcomings of its judiciary. This will not happen and we have seen the strong language from Khartoum against that portion of the report.

At its best Khartoum will pretend to accept and try to negotiate with the AU to change the proposal to make it dysfunctional and ineffective. We have seen this in the past and when we see the kind of organization the AU is, then it is almost certain that this will be the scenario.

We need to be realistic Alex, I have seen very little interest among the Sudanese elite in the report. You will no longer find any mention of it in Suanese newspapers. It is almost as if that everyone moved past it. The report did not create kind of dynamics people hoped it to do.