The Sudan National Dialogue and constitutional reforms: Co-opting mild opponents?

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The Sudanese government organized a National Dialogue to address chronic problems of conflict and political exclusion. Nevertheless, despite its potential, the process has been used to co-opt mild opponents rather than to address fundamental constitutional questions related to ethnic and regional identity – writes Nasredeen Abdulbari.

Background

Sudan, which was effectively under British control, officially became an independent state in 1956 in a self-determination exercise from Egypt, a nominal partner in a condominium rule that it shared—with no actual powers—with Britain. The Declaration of Independence of 19 December 1955 did not contain any principles on which the newly sovereign nation would be founded, nor did it provide for any specific form of governance for the immensely diverse nation. The primary focus was on gaining independence from the condominium rule with little plans for the post-independence period. Following independence, a small group of elites from the Muslim and Arab majority inherited power, which it used to advance assimilationist policies in an effort to build a homogenous state out of a diverse people, particularly undermining groups in the south and the other peripheries.   

Because of this lack of thought and foresight, Sudan’s history is replete with civil wars, conflicts, coup d'états, and destruction of the peripheries that resisted domination and exclusive central policies, which notably led to the secession of South Sudan in July 2011. In such fluctuating and unstable circumstances, it is not surprising that Sudan has experienced seven constitutions, in addition to numerous provisional constitutional orders and decrees. The post-independence history of Sudan has been a history of search for a ‘permanent’ constitution, with each regime trying to pass one. The current Interim Constitution, adopted in 2005 following the peace agreement with South Sudanese rebels, governs the country despite the secession of South Sudan. 

It is precisely because of this turbulent history and the ongoing armed conflicts that it has been necessary for the Sudanese people to engage in dialogue and constitution-building to determine the foundations of the state and the bases of its rule. This is especially true with regard to the relationship between the war-torn marginalized areas (such as Darfur, South Kordofan and Blue Nile) and persecuted peoples of Sudan (such as the Beja, the Nuba and the Funj) on the one hand, and the center, on the other.

Faced with serious domestic security and economic challenges and continued international pressure, the Sudanese government initiated a National Dialogue process in January 2014, which after almost three years resulted in the production of a 78-page outcome document in October 2016. The Dialogue was in principle a crucial step that gained support from the international community of nations, especially the African Union, the most important regional player in Sudan. Seventy-four political parties and 34 armed movements participated in the process. Nevertheless, the mainstream opposition political organizations and ethnic-based armed movements boycotted it requesting that the Dialogue be held outside the country under the auspices of the African Union and only after taking confidence-building measures, including ending the ongoing armed conflicts and lifting restrictions on freedoms. In addition, the enthusiasm of the vast majority of the Sudanese people was, for good reason, very low, and so were their expectations.

During the dialogue, thematic committees adopted by consensus recommendations that would be constitutionalized. The participating actors had the opportunity to present their positions and views after holding general discussions on specific issues within the respective committees. Issues that were agreed on within a committee were summarized, together with those that needed further deliberation. If further deliberation did not lead to agreement, the head of the committee could transfer the disputed issues to the General Secretariat of the Dialogue to seek reconciliation.  The heads of the committees could also invite experts and specialized persons to do presentations on certain disputed issues. A Reconciliation Committee eventually settled issues that eluded consensus. Nevertheless, the process was not open to public inputs. This lack of popular participation is to a wide extent responsible for the mischaracterization of issues and the little attention the process received from the public.

Misdiagnosis of the underlying problem or deliberate maneuvering?

The dialogue was built on a conspicuous false assumption that the socio-political realities in Sudan were in 2014 the same as they were decades ago, where the political organizations or more recently the armed groups and movements were the legitimate representatives of the vast majority of the Sudanese people and their aspirations. However, these organizations and movements do not today have the support of the constituencies they claim to represent, nor do they through their actions and oftentimes through their policies offer any durable solutions to the chronic and intractable problems of the country. In fact, the traditional mainstream political organizations—whether or not they participated in the Dialogue — contributed in one way or another to the making or deepening of many of these problems.

Sudanese society has witnessed growing fragmentations over the past few decades and tribalism and regionalism are central to political practice in the country, which consists of peoples that before the creation of modern Sudan were living independently in scattered kingdoms, sultanates, and chiefdoms. These underlying differences, temporarily cloaked in the euphoric post-independence nationalism and semblance of unity, have resurfaced. A genuine Dialogue would therefore require engagement between the Sudanese regions, tribes, or ethnicities, rather than just mainstream political organizations, armed movements, and ‘national’ figures and the government, no matter how difficult and time-consuming it would have been. Regional dialogues would have provided platforms for the different regions and ethnic groups of Sudan to negotiate and agree on their agendas, demands, and representatives, as unsurprisingly there are differences in the regions that must be addressed.

In addition, in the calculations of the Government of Sudan and its ruling National Congress Party, the Dialogue was not meant to lead to a comprehensive transformation that would put Sudan on track to democracy and freedom. One of the most important implications of this unpreparedness for true transformation is that the dialogue process has, in reality, become an opposition containment process—a process in which the weak participating political organizations, regardless of the recommendations of the Dialogue, become co-opted without the country necessarily witnessing a fundamental change. Given that the parties that took part in the Dialogue were actually breakaway parties and movements, parties or movements that have no existence outside the Dialogue halls, or parties that have no real difference from the governing clique, the Dialogue was in fact a monologue. The proposed constitutional amendments (see below) ostensibly confirm the containment aspect of the process.

It is axiomatic that a national dialogue requires a reasonable atmosphere. Sudan’s National Dialogue was conducted without creating a conducive environment, neither during the Dialogue, nor after the adoption of the outcomes. Among many other measures, the laws that restrict freedoms and human rights should have been abolished before the start of the process and the extensive powers of the National Intelligence and Security Services (NISS) to search, seize, and detain without a warrant, which are used to intimidate opposition and human rights activists, should have been substantially curtailed. Such confidence-building measures could have encouraged the boycotters to join the process. These measures were a prerequisite, not only for the participants to freely speak up their minds, but also for the media, civil society organizations, and private citizens to express their standpoints and to protest without fearing the retribution of the NISS, which has become an empire that does whatever it desires, including assassination of unarmed students and protesters. During the dialogue process and after the outcome document was delivered to the President, political prisoners have remained in detention and individuals protesting for rights or against policies have been arrested.  

Proposed constitutional reforms: Backtracking on semblances of recognition and freedoms? 

The Dialogue led to the adoption of an outcome document entitled ‘Recommendations of the National Dialogue’ in October 2016, whose implementation requires constitutional amendments. While the recommendations suggest the adoption of federalism and require complete adherence to principles of fiscal federalism, commendable measures given Sudan’s diversity and recurrent demands for autonomy, core issues were left out. The significant questions of the dissolution of the NISS and its affiliated militias, and the relationship between the regions embroiled in war with the government and the restoration of the historic system of regions as it existed at independence, which could for instance allow Darfur to be recognized as one region, have not been addressed. The current system of states was intended to empower specific ethnic groups that the government deemed loyal, as was the case in relation to the Arab groups in South Darfur. In others, the state system undermined the political power of some large ethnic groups deemed not to be loyal by turning them into minorities in newly created states. A clear example is the Fur ethnic group (Darfur's largest ethnic group) whose support was crucial in determining the governor of the united region of Darfur. Overall, the current state system has weakened the peripheries as they can no longer speak or act as united blocs in the face of the central government.

In addition to these omissions and wide redundancies, some recommendations are inconsistent or unclear on issues that are of extreme significance. An example is the recommendation on the issue of language in Sudan and its relationship to the state. The Peace and Unity Committee recommends that ‘Arabic is the national language of Sudan and the state shall allow the development of local and other international languages’ (emphasis added). The Committee on Identity recommended the development of national languages, the encouragement of their writing, their introduction in elementary schools and educational curricula, and the establishment of a center of national languages. The recommendations do not determine what these national languages are, which seems to be left to a national languages law, which the outcome document recommends should be passed, alongside a law on identity.

The adoption of an official or national language and the constitutionalization or legalization of identities is one of the chronic problems of the Sudanese state. In diverse societies, the state should be reluctant to adopt an official/national language or constitutionalize one identity to the exclusion of others. If there is any need to do so, then the state should adopt all the major languages of Sudan. The recommendations on adopting a single national language, when constitutionalized, will result in repeating one of the disastrous mistakes of the past as far as the identity of the state is concerned. Experiences of other nations such as South Africa, Ethiopia and Malaysia indicate that the recognition of all major languages as national or official languages and languages of instruction is useful politically, educationally and in the effective provision of services. Indeed, the 2005 Interim Constitution contained better provisions on language and that the outcome document did not at least restate them is an unfortunate setback, given that Sudan is still as diverse as it was before the secession of South Sudan. The Interim Constitution recognizes all indigenous languages of Sudan as national languages to be respected, developed and promoted, and allows subnational governments to recognize any national language as an official working language, in addition to Arabic and English.    

In relation to democracy and freedom of expression, one can mention two recommendations that clearly prove the National Dialogue was not meant to transform the country and that it was in fact a monologue. First, the outcome document recommends that university vice-chancellors be appointed by the President of the Republic. Until the early 1990s, they were elected by their universities to ensure academic freedom and independence of universities and higher education institutions. This recommendation plainly means the continuation of the status quo. Second, there is a recommendation that the current penalty of imprisonment of journalists for offences related to their publications be substituted with bans on writing for a legally determined period. The latter is a penalty that the NISS usually metes out on journalists who write on issues that the government disapproves. The recommendation will result in constitutionalizing an illegitimate practice contradictory with the freedom of expression.

Transitional constitutional reforms

The recommendations in the outcome document are expected to be incorporated into a final, ‘permanent’ Constitution of Sudan. A Higher Coordinating Committee, chaired by the President of the Republic, is expected to arrange the priorities and the political reconciliation for the implementation of the recommendations in consultation with relevant political forces. It also provides for the establishment of a National Reconciliation Government at the central and state levels involving the parties to the Dialogue and others that may join later to implement its outcomes. The Reconciliation Government is expected to be formed within three months of the adoption of the recommendations and will continue for four years, after which elections will be held to select a new government.  

To give effect to some of the outcomes of the Dialogue, and as an attempt to establish a semblance of an inclusive government that will work on the final Constitution, the Presidency, on 26 October 2016, unilaterally submitted three major constitutional amendments to the Interim Constitution that will pave the way for a transitional National Reconciliation Government. The first relates to the creation of the position of a prime minister. The premier and the council of ministers, according to the proposed constitutional amendments, are to be appointed and removed by the President. This in practice means the prime minister will be subordinate to the President. The second is to increase by appointment the number of the seats of Parliament. The proposed details of the position of prime minister and the increase of the seats of Parliament demonstrates that the dialogue process was but a containment exercise. It will create positions for those who participated in the Dialogue without introducing fundamental changes.

The third, a positive and a significant one, will separate the position of attorney general from the ministry of justice, with a view to enhance the independence of the former. Despite its significance, the recommendation that the two institutions should be separated was uncontroversial. Experts have long argued that the two positions should be separated. In short, the three recommendations have nothing to do with addressing the chronic problems of the country that cause wars in the peripheries or undermine the transition to democracy. Indeed, Tajeldeen Banaga, a member of the General Secretariat of the Dialogue, acknowledged that eight suggested amendments related to fundamental freedoms and rights have not been submitted.

Concluding remarks

Sudan, a country consisting of diverse nations and peoples, was created by imperial and colonial powers. The nations and peoples that are today called Sudanese had their own kingdoms, sultanates, and chiefdoms based on their tribal and ethnic traditions. The failure of those who have been ruling the country to create a system of governance that could secure justice, representation, and thereby democracy, peace, and stability for Sudan is the main reason behind Sudan’s failure as a state. The National Dialogue could have been a great opportunity to put the country on the right track. Nevertheless, the conditions under and the intentions with which it was initiated and conducted, and the participating parties rendered it fake and futile. The recommendations that appeared in the outcome document attest to its futility.

The proposed constitutional amendments to the current Constitution, as well as many of those that would be made after the formation of the new government, will be nothing more than a set of measures to contain weak political organizations that took part in the National Dialogue. A genuine national dialogue should be among the regions and ethnic groups of Sudan to first and foremost agree on the foundational principles of a new Sudanese state in which the regions of Sudan enjoy a wide degree of autonomy and equitable representation in the national government. Such a dialogue requires that the powers of the NISS be immensely trimmed. In addition, a truly independent body, chaired and manned by reputable and competent persons from all Sudanese regions, should be agreed upon to administer the process.

Nasredeen Abdulbari is a Sudanese independent consultant and doctoral candidate at Georgetown University. He can be reached at nha32@georgetown.edu.