The Need for a Transitional Constitutional Framework for Post-al Bashir's Sudan

After months of public protest against President Omer al Bashir’s rule, the military removed al Bashir from power and established a Transitional Military Council (TMC) to transfer power to civilian rule. However, the TMC’s suspension of Sudan’s Interim Constitution of 2005 has led to problems of legitimacy that can only be solved by agreement between the protestors and the TMC on a new constitutional framework. 

Brief summary:

On January 1, 2019, members of the Declaration of Freedom and Change Forces (DFCF), signed a political declaration in which they jointly committed to a political campaign for President Omer al Bahir’s resignation and a four transition to civilian rule. The DFCF is a collation of political parties, professional associations, and CSOs dedicated to creating a sound democratic structure for Sudan. On April 6, the Sudanese Professionals Association (SPA) (a partner group with the DFCF who is leading the protests), called for a sit-in in front of the Sudan Army’s Headquarters until al Bashir’s government falls.

On April 11, after around four months of peaceful demonstrations, public disobediences, and the sit-in in front of the Army’s Headquarters in Khartoum, General Awad Ibn Auf (al Bashir’s Minister of Defense and Vice President) released a statement announcing that the military had removed al Bashir from power. This statement also announced the establishment of a Transitional Military Council (TMC) (composed from all national military and security components) to assume control of the government for a two-year transitional period and the suspension of the Sudan Interim Constitution of 2005.

A few days later, General Ibn Auf resigned from his position and appointed Lt. Gen. Abdel Fattah al-Burhan as head of the TMC. The DFCF rejected this move and continued to protest. The DFCF demanded that the TMC to hand over the government to a civilian authority.

Suspension of the Constitution:

Sudan needs a constitution. When the TMC Suspended the Interim Constitution of 2005, they created a need for an alternative constitution. The idea of suspending the constitution is common in all Sudanese transformative political shifts. Talk of suspending the constitution was present in the October 1964 revolution, the April 1985 uprising, and in May 1969 and June 1989 when the Constitution was abolished after military coups. However, unlike these previous suspensions, this is the first time that the TMC did not establish constitutional provisions to guide their administration during the two-year transitional period.

The TMC’s announcement of a military council to control the country during the two-year transitional period was without constitutional reference. This lack of constitutional reference creates a legitimacy problem that the Military Council will face as soon as it takes over.

State of Emergency:

Also without constitutional reference, the new TMC declared a state of emergency for the next two months (which the public has ignored). Declaring a state of emergency is a constitutional matter which should be regulated by procedures and laws in a constitution. Without a constitution, defining the state of emergency is difficult. The state of emergency is neither defined nor specified anywhere (as it could only be defined or specified in a constitution which has been suspended).

A state of emergency does not stand alone; it requires a constitutional reference point. In Sudan’s Interim constitution of 2005, the state of emergency is regulated by law (Chapter 9, Part 14, Article 210-12). It is imperative that the constitution is upheld when declaring a state of emergency because the constitution protects rights and freedoms that could otherwise be violated during the emergency. When a state of emergency is declared, the (suspended) Interim Constitution limits the president’s ability to disrupt some freedoms, but not all (Chapter 9, Part 14, Article 211). This is an important protection for the rights and freedoms of the Sudanese people.

The Judiciary and Constitutional Court:

The TMC’s statement also authorized the Judiciary and the Constitutional Court to continue working without any changes. This authorization is illogical in the absence of a Constitution. These institutions are regulated and mandated by the Suspended Constitution (Part 5, Chapter 2, Article 123-32; Part 5, Chapter 1, Articles 119-22 respectively). As a logical consequence of suspending the Constitution, these courts were also suspended and ceased to formally exist. This is particularly poignant in the case of the Constitutional Court which no longer has any constitution to adjudicate.

Based on Sudan’s history in the October 1964 revolution, the April 1985 uprising, and in May 1969 and June 1989 coups, when the new revolutionary power abolishes the constitution, the new power needs to immediately issue constitutional decrees. These decrees serve in place of the annulled constitution and fill the constitutional void left by the nullification of the constitution.

Without these decrees, and with the Constitution suspended, all state institutions are null and void because there is no legal reference point or constitutional grounding. This nullity extends to all state institutions – including the Armed Forces and the TMC. Without any constitutional reference, these institutions cannot operate legitimately or be held accountable. This creates a cycle of de-legitimacy: The TMC suspends the constitution, this in turn suspends the state military, the suspension of the military then suspends all military bodies like the TMC. With the TMC suspended, there is no legitimate authority to govern the transition. To ensure legal continuity and escape this de-legitimizing cycle, there must be some constitutional reference. All these are shortcomings and failures have resulted from the decision to suspend the Interim Constitution of 2005 without the necessary constitutional decrees to fill the void left by the Constitution.

AU leverage:

As a member state of the African Union (AU) since 1963, Sudan is bound by the AU Protocol of the Peace and Security Council (PSC). The AU’s reaction towards current political transformation in Sudan has not been favorable; they have thus far refused to recognize the legitimacy of the TMC.

On April 15, the AU Peace and Security Council (PSC) issued a communiqué that “strongly condemns and totally rejects” the Council’s seizure of power and its’ two-year transition. The AU PSC demanded that the TMC transfer power to a civilian-led transitional government. If the TMC refuses, Article 7(g) of the AU Protocol will automatically suspend Sudan from the AU.

Article 7(g) of the AU Protocol states that: In conjunction with the Chairperson of the Commission, the Peace and Security Council shall: (g) institute sanctions whenever an unconstitutional change of Government takes place in a Member State, as provided for in the Lomé Declaration.

Negotiating a Constitutional Framework:

The only way to develop a peaceful political transformation in Sudan is for the TMC and the DFCF to agree on a constitutional framework. The TMC has agreed to negotiate the transition roadmap and constitutional issues with DFCF. Outcomes and consensus of these negotiations must lead to a Constitutional Framework to ease the transitional processes. 

On May 15, after weeks of tense talks, there was consensus on almost 80% of the main issues (except the composition and the leadership of Sovereignty Council). The agreement between the two parties included provisions for an executive ministerial council and a legislative council.  The majority of the legislative council (67%) would be selected by the DFCF and the remaining seats (33%) would be selected from non DFCF political components (excluding al Bashir’s National Congress Party (NCP)). The executive ministerial council would be composed of 17 ministers selected from competent civilians by DFCF. So far, no final agreement on the Sovereignty Council has been reached.

However, despite this progress, the talks have become deadlocked as both sides insist on having the majority of seats in the transitional sovereignty council. As a compromise, some suggest that the sovereignty council seats should be shared by TMC and DFCF and have alternate chairing by the TMC and DFCF.

The international community has pledged to support Sudan's constitutional arrangements. The UN Independent Expert on the situation of human rights in Sudan, Arisde Nononsi, called on the two parties to resume talks and to speed up the transition period to ensure smooth transfer of power to civilians. Nononsi has also expressed his readiness to cooperate with all parties to help establish a State where: the legitimate demands of the Sudanese people are taken into account, human rights are respected, and the rule of law is upheld. Stephane Dujarric, Spokesperson for the UN Secretary General, also made a similar commitment on May 15, stating that the Secretary General is committed to continue working with the AU in support of Sudan's political transformation.

Sami Abdelhalim (PhD in Constitution Law 2008).  A Sudanese lecturer and certified lawyer since 1994. Published dozens of papers and researches on constitution and human rights issues in Sudan, participated in numerous conferences, symposia, and seminars in East Africa and throughout Europe. Mr. Abdelhalim actively has involved in the Sudanese CSOs field.