Sudan’s Missed Opportunity for Historic Peaceful Transfer of Power: The Planned Removal of Term Limits

Despite initial indication of a potential successor to replace Sudan’s Omer al-Bashir, the ruling party has decided to pursue a constitutional amendment to remove term limits to allow al-Bashir to run in the 2020 elections. This would undermine the optimism and new energy a mere change of leadership could have generated. Constitutional designers should seek better procedures to protect vulnerable provisions, such as term limits, through, for instance, referendum requirements for their amendment – writes Nasredeen Abdulbari.

Background

On 9 August 2018, the National Congress Party (NCP), the ruling party of President Omer al-Bashir, passed a resolution in the Annual Meeting of its Consultative Council authorizing al-Bashir to run for a third term, a familiar story in the African context. This is despite the fact that the Interim National Constitution, adopted in the aftermath of the 2005 Comprehensive Peace Agreement with the then Southern Sudan rebels partly aimed at aiding democratic transformation, sets the tenure of office of the President of the Republic at five years, renewable only once. This provision follows what has now become a relatively prevalent constitutional tendency in many African and other states, where presidents are not allowed to run for a third term. The provision excludes al-Bashir, who has been in power since 1989, from running in the 2020 elections, as he was elected president under the current constitution in 2010 and 2015. The resolution of the Council contradicts initial indications that al-Bashir may retire after he named a potential successor for the 2020 elections, which could have led to a historic peaceful transfer of power in Sudan. The continuation of al-Bashir’s rule would allow him to avoid any remote risk of transfer to the International Criminal Court on pending charges for crimes against humanity in case of a transfer of power.

The proposed reform could take the form of an exceptional third term for al-Bashir, as was the case in relation to Rwandan president Paul Kagame in 2015, or remove term limits altogether.

The Council specifically amended Section 36 of the NCP Statute, which limited the term of office of those who occupy organizational (party) positions to two terms, but at the same time gave the Council the right to make exceptions. Accordingly, the Council decided to officially approve al-Bashir as its nominee for the 2020 presidential elections. It has directed the relevant competent state bodies to initiate the necessary procedures to put the resolution into operation, which could take the form of an exceptional third term for al-Bashir, as was the case in relation to Rwandan president Paul Kagame in 2015, or remove term limits altogether. The General Convention of the ruling party, which will be held in April 2019, is expected to endorse the resolution of the Consultative Council without any significant objections. Since the current constitution does not allow more than two terms in office for the president as stated above, this resolution means the constitution will have to be amended. In amending the constitution to prolong al-Bashir’s stay in power, Sudan has also followed another tendency in Africa (and elsewhere in the world), which is to amend a constitution to enable an incumbent president whose term limit is ending to run for president. In other words, Sudan has not derailed from what two authors from the University of Johannesburg in a recent article have called ‘the curse of third termism’.

Link to Overall Constitutional Reforms

Constitutional amendments in Sudan should at the moment be dictated or guided by the recommendations of a controversial National Dialogue that was concluded in October 2016, at least from the standpoint of those who supported or participated in the Dialogue. The final document of the Dialogue, however, did not contain any recommendation on the term of office of the president, although it provided that the president be directly elected. Since the whole national dialogue process was controlled and manipulated by the NCP to the extent that it was in actuality a monologue, it is unsurprising that the document did not include any recommendation in that regard.

Amendments should be approved by 3/4th of the members of the National Assembly and the Council of States (the two chambers of the National Legislature in Sudan) in two separate sessions.

The potential constitutional amendment to enable al-Bashir to further prolong his stay in power raises two important questions. The first relates to the potential positive changes that many in Sudan and the international community (especially the US government) hoped could happen within the ruling party and pave the way for democracy and some other fundamental changes or developments in the country. In Sudan, the nomination of a person other than al-Bashir would have tempted opposition groups that were interested in participating in the 2020 elections to exert more efforts in the hope of winning against someone who is not in power - election experiences in the vast majority of authoritarian countries, where presidential elections are usually rubber-stamping referendums, demonstrate that incumbent presidents almost never lose elections. A new face would have also demonstrated to the optimists in the international community that they could be proven right with regard to their hopes and optimism that the ruling organization in Sudan could take steps that may result in political reform and maybe democratic transformation in the long run. The continuation of al-Bashir in power means that his devastating policies that he has been trying for approximately three decades will now be continued in the five years that will follow the 2020 elections. Change of leadership, even within organizations that are not democratic, could sometimes result in changes that might be positive, as we have recently seen in Sudan’s eastern neighbor, Ethiopia, where the election of Abiy Ahmed as Prime Minister has led to the improvement of relations with Eritrea, release of political prisoners, and enthusiasm in the country and across the continent that political change is possible.

The chances of improvement, reform, or transformation can be better if there is a new sheriff in town, a town that is corruption-riddled and suffers from deep, continuous economic and social deterioration

For those in Sudan who have known no president other than al-Bashir in their lives, the very fact that he could not constitutionally run again would have been good news and a sign of change. In addition, it would have been a reason for optimism and maybe activism to ensure that the next president of Sudan would be a pragmatic and competent person who might be able to achieve comprehensive peace, fight corruption at home, improve Sudan’s foreign relations and its tarnished reputation, and help create a state that does not discriminate or commit atrocities against its own people. The resolution of the NCP to nominate al-Bashir means that Sudan’s weak international status, prevalent corruption, wars and conflicts, discrimination and atrocities will continue, as the fundamental reasons for their continuation, the policies of al-Bashir’s government, will continue—he will have nothing new or different to offer after being in power for almost three decades. Of course, al-Bashir’s disappearance from the political scene as a candidate or as the president of Sudan may not immediately lead to the improvement of the situation or major changes in the country, because the NCP is an organization that espouses an exclusionary ideology and is dominated by members whose objectives do not include political reform or democratic transformation. The argument is that the chances of improvement, reform, or transformation can be better if there is a new sheriff in town, a town that is corruption-riddled and suffers from deep, continuous economic and social deterioration felt by everybody in society.

As the ruling party has already taken a decision, public consultations over the proposed reforms, even sham ones, are unlikely.

The second important question raised by the potential constitutional amendment has everything to do with the supremacy of the constitution. The 2005 Constitution of Sudan (amended in 2011) unequivocally states that ‘[t]he Interim National Constitution shall be the supreme law of the land’. It is axiomatic that by virtue of being the supreme law of the land, the decisions and practices of all institutions, organs, and organizations (including the ruling organization) in the land are required to be consistent with the constitution. The resolution by the NCP to nominate al-Bashir gives another example of one of the predicaments that authoritarian regimes oftentimes find themselves in: their propensity to adopt constitutional provisions that make them look democratic and rule-of-law respecting and their inability to live up to those provisions as soon as they conflict with the whims of their leaders or the narrow interests of their ruling organizations. The contradiction between the decision taken by the NCP and the constitution made a leading NCP intellectual to expressly and vocally oppose the decision of his organization. Overall, the decision reaffirms to the Sudanese people that the cause of Sudan’s crises is not only al-Bashir as an individual, but also the NCP as an organization. Therefore, as discussions are continuing on the recent NCP decision, it is highly significant that the efforts of the Sudanese people to bring about reform and transformation should not only be focused on challenging al-Bashir but also his organization.

Constitutional Procedures for Effecting the Potential Change

Under the constitution, amendments should be approved by 3/4th of the members of the National Assembly and the Council of States (the two chambers of the National Legislature in Sudan) in two separate sessions. The draft of the proposed amendment should be submitted at least two months prior to the date of deliberations, apparently to give the members of the two houses of parliament sufficient time to ideally consult with their constituents, form clear ideas, and build arguments to support or oppose the draft amendment. Given that the majority in the two houses of the National Legislature are NCP members and the rest are organizations that are participating in the so-called National Unity Government, the amendment of the constitution to enable al-Bashir to run for president in 2020 will not face any significant obstacles—as members usually vote along party lines. As the ruling party has already taken a decision, public consultations over the proposed reforms, even sham ones, are unlikely. With the exception of one organization, the so-called national unity parties, the parties that are currently participating in the National Unity Government (reportedly 70 parties and 25 former armed groups) have already expressed their support to the NCP decision to nominate al-Bashir describing it as ‘wise’, and indicating that ‘al-Bashir represents the guarantee for the permanent stability of the country’. This indicates that these parties will vote in favor of passing a draft constitutional amendment removing term limits and enabling al-Bashir to run again in 2020.

Lessons for Constitutional Designers on Protecting Vulnerable Provisions

Adherence to constitutional provisions that are indispensable for democracy and political stability and progress—even when adopted by authoritarian states—is extremely important. The challenge of third termism demonstrates that constitutional designers need to put strict constitutional measures in place to ensure that vulnerable provisions—such as presidential term limit provisions—are not easily amended, if they should be amended at all. Some constitutions in Africa make term limits unamendable. Alternatively, a constitution can require that the amendment of certain constitutional provisions be only done through a referendum that—depending on the situation in every state—should be monitored by regional and international organizations to ensure that the will of the people is freely expressed and fully respected.

In the absence of such culture of constitutionalism, the impact of constitutional design would be stunted.

In (hopefully) a future properly-functioning federal and democratic state in Sudan, there could be a constitutional requirement that the adoption of important amendments be endorsed by a specific percentage of the legislative bodies of the units of the federal state, as it is common in federations in Africa and beyond. There could, for instance, be a requirement that an amendment to the presidential term limit provision would not be possible unless 3/4th of the regional legislatures have approved it. Nevertheless, ultimately, the existence of and adherence to such constitutional measures require political leaders who believe in them and in constitutionalism in the first place and are prepared to lead by example. In the absence of such culture of constitutionalism, the impact of constitutional design would be stunted.

Nasredeen Abdulbari is an independent consultant on international and constitutional law and doctoral researcher at the Georgetown University Law Center. He can be reached at [email protected] and followed on Twitter at @nasabdulbari.