Post-National Dialogue Constitutional Amendments in Sudan: Undermining fundamental rights and decentralization?

The latest amendments to the Constitution of Sudan have largely failed to give effect to crucial aspects of the outcomes of the National Dialogue and alienated even groups sympathetic to the process. Fundamental change in the governance of the state requires the creation of a totally new transitional government and agreement on the foundations for a new state in an inclusive process that should have the support of the vast majority of Sudanese ethnic, regional, and political groups and organizations – writes Nasredeen Abdulbari.  

Introduction

On 25 April 2017, in an apparent attempt to reflect the post-South Sudan secession realities and developments and to formalize the recommendations of the controversial Sudan National Dialogue that was initiated in January 2014 and completed in October 2016, the Sudanese legislature made amendments to the 2005 Interim Constitution. The amendments cover a wide range of issues related to women, family and marriage, fundamental rights, the security apparatus (also amended in January 2015), and state/regional executives. 

The Interim National Constitution of Sudan, which came into existence in 2005 in the aftermath of the famous Comprehensive Peace Agreement (also known as the Naivasha Peace Agreement), was constructed to address Sudan’s complicated problems, generally, and the question of its Southern part at the time, specifically. It reflected the provisions of that agreement and the end of the six-year interim period with the secession of South Sudan necessitated the reconsideration of that constitution to reflect new political realities, as well as the recommendations of the National Dialogue.

Overall, the amendments largely fail to give effect to, and actually contradict, the recommendations of the National Dialogue, which were themselves allegedly distorted and not fully and accurately included in the final outcomes of the Dialogue. Indeed, the amendments have mainly been criticized by parties that participated in the National Dialogue. Groups that did not participate in the Dialogue largely consider the amendments irrelevant to them and incapable of addressing the deep problems facing the country.

Undermining fundamental rights, Empowering the security apparatus

The criticisms made by the parties that took part in the National Dialogue have focused on fundamental freedoms and the enhanced powers of the national security apparatus. The main political organization that zealously supported the National Dialogue, the Popular Congress Party (PCP), has vehemently criticized and opposed the amendments, describing them as disappointing and inconsistent with the outcomes of the National Dialogue and as an erosion of all previous efforts. In their opinion, the amendments have weakened the fundamental freedoms and rights of expression, life, belief, and privacy, on the one hand, and expanded the scope of the powers of the National Security and Intelligence Services (NISS), on the other.

The amendments remove expressions that restrict the limitation of rights, such as the rights of the press.

In particular, the amendments remove expressions that restrict the limitation of rights, such as the rights of the press, to those ‘regulated by law in a democratic society’ and replace them with ‘regulated by law’ or with no other phrases. These changes will further empower the political entities to undermine through law fundamental rights. Nevertheless, the amendments also make some improvements, such as the reference to the legal age of marriage, although no specific age is set; the use of custom in regulating family affairs if the parties do not embrace a religion, which could accommodate several tribes and ethnic groups in the Nuba Mountains and Blue Nile regions that follow African traditions and belief systems; and providing for absolute prohibition of slavery and removal of an exception to the prohibition of forced or compulsory labor previously allowed if imposed as a penalty by a court of law.

The amendments make the NISS a regular force. 

According to the amendment to Article 151, the security apparatus (which is made a regular force), in addition to gathering information and analyzing and providing it to the competent authorities, is now authorized to combat threats to national security, including terror and money laundering, human trafficking, international and transnational organized crimes, in collaboration with the other regular forces and through bilateral regional and international cooperation. The final document of the National Dialogue has recommended that the NISS be ‘… professional and its mandate shall focus on information gathering, analysis and providing advice to the appropriate authorities’. The National Dialogue recommendation, in this regard, is fully compatible, even in its wording, with Article 151(1) (3) of the Interim National Constitution of 2005, an article that was never put into practice during the six-year interim period.

The insistence of the government/ruling party to expand the powers of the NISS is due to its total reliance on the protection and defense of this apparatus, which acts as a police force as well as an army, in addition to its lack of trust in the traditional Sudan Armed Forces. Although the two institutions are fully controlled by political elites and officers who hail from certain ethnic groups, the vast majority of the lower ranking elements of the former, unlike the latter, are also from those groups, most of whom are motivated by ethnicity, tribalism, regionalism, or to a lesser extent ideology. The composition of the NISS manifests the unfortunate ethnic and regional dichotomies in Sudan. While the armed rebel groups similarly come from certain ethnic groups, the state should be inclusive and position itself above the ethnic, religious, cultural and regional divisions of society.  

Under the amendments, the President of the Republic will appoint state governors.

Another group which participated in the National Dialogue and has rejected and severely criticized the amendments is the Isnad Committee for Supporting the National Dialogue. In their view, the April amendments have overridden and distorted the outcomes of the National Dialogue, ‘emptied’ the Dialogue of its content, and will take the country back to the pre-dialogue square. The critical reaction of the PCP and the Isand Committee to the constitutional amendments indicate that the recommendations of the National Dialogue, even in their allegedly distorted and inaccurate version, would not find full expression in the ‘permanent constitution’ of Sudan, as they have not found that expression in the now amended version of the 2005 Interim Constitution.

The presidential appointment of state governors: A retreat from decentralization and a rejection of federalism?

Centralization of political power by the political elites of central Sudan and the control over the resources of the peripheries continue to be fundamental problems. The amendments to Article 179, titled ‘transitional provision on state governors’, continue this tradition. The amendments, inter alia, give the President of the Republic the power to appoint state governors. In this regard, the recommendations of the National Dialogue are surprisingly silent on the mode of selection of state governors. Nevertheless, under recommendation No. 33, federalism should be adopted as a system of governance, and under recommendation No. 90 (on self-rule), the citizens of Sudan should be enabled to govern their regions according to the constitution and federalism.

Democracy is arguably the best way to deal with differences and tensions and avoid conflicts in the long run.

A crucial feature of a federal system of governance is the empowerment of the states to control the mode of selection and accountability of state executives, independent of the national government. The ruling elites in Khartoum have always been keen to centralize political power and the appointment of state governors obviously proves the tendency towards centralization. This has historically been the case and it is one of the major causes of war in the Nuba Mountains, Blue Nile, and Darfur. The historical failure to have a system that fully enables all the states and regions of Sudan to exercise their right to determine and control their political and economic destiny is what has pushed the Sudan People’s Liberation Movement (SPLM) in the Nuba Mountain to assert the right to self-determination in October 2017. Another group of the SPLM, mainly based in Blue Nile, calls for self-government, as does the United Popular Front for Liberation and Justice (of eastern Sudan), to mention a few examples.

Apparently, those who support the appointment of governors today argue that their election has sparked tribal and ethnic tensions in many states and for that reason their appointment by the President is a necessity. However, ethnic tensions are a consequence of the policies of the minority ethnic-based central government, which, for instance, supports some tribes against other tribes in the peripheries, especially in the western part of the country. The clearest example is the role of the central government in conflicts between some clans or tribes, which are seen as antagonistic to the government and other clans or tribes, which have the support of the government. That being said, the solution to the clan, ethnicity, or identity politics and tensions in Sudan is not to give the institution that ignites them in the first place a constitutional power to appoint state governors. The solution is to put strict constitutional measures in place so the state becomes impartial vis-à-vis ethnicity, tribes, cultures, religions and regions—a state that organizes relations among and between all groups and provides protection to all. Furthermore, democracy is arguably the best way to deal with differences and tensions and avoid conflicts in the long run, and the election of state governors under the current presidential system is indeed a way for all individuals and groups to express their views. If Sudan opts for a parliamentary system of government in the future, the governors could also be selected by their respective regional/state parliaments, as it is the case in many federal parliamentary states in the world.  

The language of Article 179 (as amended) appears to make appointing state governors the rule, rather than the exception.

The amendment to Article 179 contains, in its second paragraph, a provision that, in addition to the provision on the appointment of state governors, speaks of electing state governors in the elections of 2020, which at least gives the President a constitutional power and right to appoint them during the next two years. The inclusion of the provision on the election of governors probably is an attempt to please or contain regional groups and political organizations that participated in the National Dialogue (and afterwards joined the government) that demand or call for decentralization or federalism. An argument could be made that the simultaneous existence of the two provisions is justified by the transitional, post-National Dialogue period in which the president should make some appointments. Nevertheless, the language of Article 179 (as amended) appears to make appointing state governors the rule, rather than the exception. The language of the article and the long history of centralization of political power affirm that the intent behind the amendment to Article 179 is to concentrate more powers in the hands of the President of the Republic.

Conclusions

The April 2017 amendments to the 2005 Interim Constitution of Sudan represent a constitutional setback that negatively affect fundamental freedoms through the narrowing of the scope of some rights and through the expansion of the powers of the NISS, the main violator of human rights and chief agent of repression in Sudan. The criticisms against the amendments by those who were ardent supporters of the National Dialogue, such as the PCP and the Isnad Committee, is clear evidence that the outcomes of the National Dialogue, in addition to their shortcomings and alleged distortion, will not be implemented. Their criticisms have vindicated the opposition groups that refused to participate in the Dialogue on the ground that it would lead to no substantial change in the country.

The provision on the appointment of state governors will only push Sudan’s regions that complain of marginalization and exclusion to take more extreme positions, whenever they feel they have the capability to do so. The overall lesson from the recent constitutional amendments is that no fundamental change in the system of governance and protection of human and fundamental rights and freedoms would be possible without creating a totally new transitional government and agreeing on the foundations for a new state in an inclusive process that should have the support of the vast majority of Sudanese ethnic, regional, and political groups and organizations.

Nasredeen Abdulbari is an independent consultant and doctoral candidate at the Georgetown University Law Center. He can be reached at nha32@georgetown.edu.