–Waikwa Wanyoike, Strategic Litigation Director, Open Society Justice Initiative – London
On August 4, 2019, an historic agreement was signed in Sudan between the Forces of Freedom and Change (FFC) and the Military Transition Council (MTC). The FFC is the revolutionary group that triggered the removal of the long-term autocratic leader Ahmad Al Bashir. The MTC had quickly taken over after the fall of Al Bashir, however the FFC and other civilian groups rejected MTC. This resulted in the death of at least 128 civilians involved in protests by the paramilitary forces on June 3, 2019. The outcry from this tragedy saw the military forces agree to a negotiation and a power sharing deal signed on July 17, 2019.
What was unveiled on August 4th is the Constitutional Charter for the 2019 transition period. This is a key document to Sudan’s future. Though completed within a short time, it is impressively elaborate. It spells out the significant rules that will govern the transition. It is also fundamental for another reason: it replaces the prior 2005 Transitional Constitution of Sudan as well as those of the provinces, and becomes the guiding legal text through which Sudan will be governed for the next 39 months, the stipulated transition period.
The Key Institutions for Transition
In a nutshell, the Charter covers five core areas.
First, it sets out the length and mandate of the transition period and outlines comprehensive peace issues that institutions must address during the period.
Second, it provides for the composition, make-up and mandate of the transitional government.
Third, it sets out a tight schedule for implementing the transitional agreement between FFC and MTC up to September 2019.
Fourth, it acts as a transitional constitution, laying out the critical overarching legal prescriptions that will regulate Sudan during the transitional period.
Finally, and perhaps most importantly, it requires the setting up of independent institutions – among them, the constitutional court and judiciary, office of the public prosecutor, independent bodies and commissions and, critically, a Constitutional Drafting and Constitutional Conference Commission.
At the political level, three institutions are critical. The uppermost is the Sovereignty Council – the head of State, composed of 11 members with each group, the MTC and FFC, selecting five representatives each. The additional member is jointly chosen by MTC and FFC. Though the head of state is communal, the Sovereignty Council is required to choose a chairperson with the MTC chairing the Council for the first 21 months and the FFC for the remainder of the transition period.
The military’s active participation in the transition seems mostly restrained to its participation in the Sovereignty Council, and two cabinet slots, defence and interior. The Cabinet (not exceeding 20) is headed by a Prime Minister, who is chosen by FFC and appointed by Sovereignty Council and will have the executive powers previously exercised by the President, except those already assigned to the Sovereignty Council. Save for the two MTC cabinet slots, all other members of cabinet are drawn from FFC. Most of the executive powers are reposed in the Cabinet, with the Sovereignty Council having the more symbolic state power of confirming and appointing people to critical state offices, including those of the constitutional court, the judiciary and independent commissions. However, the Charter anticipates that the selection for these positions will be done through regulated, transparent and competitive processes.
The other critical political organ is the Transitional Legislative Council, a body of not more than 300 members of whom 67% will be from FFC and the remainder selected by other forces which did not sign the Freedom and Change Declaration. One of the Charter’s most positive requirements is that at least 40% of members of the Legislative Council must be women. The Legislative Council will play a critical role in the transition, since the Charter requires the passage of numerous laws to implement it. Moreover, the Legislative Council has the authority to oversee the Cabinet, approve the budget and ratify regional and international agreements and treaties. The latter role is especially key since the Charter provides that regional and international laws and treaties ratified by Sudan form part of its laws.
So, how will all this work?
Achieving compromise on a good transition plan is a herculean task. It is more admirable when such a compromise document spells out in detail important markers, values and principles that will not only guide the political aspects of transition but those that seek to entrench the values of the state a country seeks to transition into. The Charter does that in many ways. For example, it provides for a relatively elaborate bill of rights; it emphasizes on the secular character of Sudan, not an insignificant achievement, given that Islam is a dominant religion in the country. The Charter further underscores tolerance, dignity and pluralism. In addition, although significant procedural immunity is granted to key leaders in the transition including members of the Cabinet as well as the Sovereignty and Legislative Councils, there is emphasis on prioritizing transitional justice. Moreover, on rights, the Charter spells out not only political and civil rights, but includes socio-economic, cultural, environmental and intergenerational rights.
Furthermore, the Charter makes an impressive attempt to delineate, separate and oversee the exercise of power. There seems to be a genuine drive to establish a powerful constitutional court, which will have countervailing adjudicative authority over all aspects relating to exercise of state power; to create infrastructure for an independent judiciary; and, importantly to set up strong independent bodies and commissions composed of individuals who have not had any association with the past autocratic regime of Al Bashir.
The Challenges of Implementation
A few factors will make the political transition quite complicated.
The first concerns the role the military will play in the transition. The MTC was quick to initially sabotage the people’s revolution back in April following the fall of Al Bashir. Its quick high handedness may have signaled that it was not keen on a democratic people-led transition. Yet, it holds critical positions in the main organ that will steer the transition, the Sovereignty Council. Even more telling is that the MTC will chair the Council in the first 21 months of the transition, meaning it will have significant influence on how the transition is executed. The fact that the two most critical Cabinet slots, defence and interior, are also reserved for it implies that it may have a significant influence on the civic space, including whether Sudanese are granted a free pass to express themselves on how they wish the transition managed and the country’s future shaped. If the MTC exercises high-handedness or chooses to co-opt critical FFC members, the Sudan democratic transition will be seriously undermined or perhaps entirely botched.
Second, whether the transition succeeds will also depend on how quickly the FFC is able to entrench itself, to establish credible institutions to administer the transition, and to put in place mechanisms that will guarantee Sudan’s full transition into a constitutional state in 39 months. This could go one of two ways: either the FFC quickly appropriates an ideologically driven approach to reforms that emphasizes the need to deliver a functional constitutional state during and after the end of the transition or the FFC elites seek to consolidate power for the sake of their own political survival post-transition period. The lure that comes with power and resources makes this a plausible possibility unless the people are willing to treat the FFC with skepticism and monitor closely how the transitional leadership works to deliver the promise of the Constitutional Charter.
The third reason has nothing to do with possible sabotage: it is an appreciation of how complex and fast-paced the transition must be for it to comply with the requirements of the Charter. The Charter provides that one of the primary mandates of the transition period is to “dismantle the June 1989 regime’s structure for consolidation of power (tamkeen), and build a state of laws and institutions.” The breadth of the anticipated legal and institutional changes and the resources needed to operationalize them will be overwhelming. Though the Charter preserves the existing laws and institutions until they are appropriately replaced, it nevertheless creates significant urgency for the changes to be undertaken. Yet, the need to move with utmost haste is critical since most transitions are stillborn because previous leadership as well as political and administrative institutions overstay the appointed transition period and use their vantage points and clout to actively undermine the transition.
Then there are the complicated geo-political interests, including what role different countries in the Middle East may have played and continue to play to this date. The movers from the global north seem to also have quietly upped their interest in influencing how the transition is managed and are keen to shape the type of country Sudan becomes. Though the actual clout of the African Union on the transition is still unclear, it is however instructive that the Charter does expressly recognize the need for Sudan to lean onto other African expertise if need be to implement the ambitions of the transition.
Finally two more things that may complicate the transition: first, the Charter provides that the “chairman and members of the Sovereignty Council and ministers, governors of provinces, or heads of regions, are not be entitled to run in the public elections that follow the transitional period.” This is dual-edged. True, it is commendable that those entrusted with the critical tasks of facilitating the transition are disallowed from using their vantage point to consolidate long-term political careers post transition. However, there is the risk that the prohibition could be an impetus for them to unduly delay or frustrate the transition so as to hold on to power longer than the Charter provides. Equally worse is the possibility they could use their clout to amend or modify this constitutional provision and likely other aspects of the Charter.
But perhaps the greatest complicating factor will be the people. The Sudanese have lived under the yoke of autocracy for so long. Autocracies have a way they affect all aspects of the people’s fortunes: economic well-being, rights, communal mental health, etcetera. A big stress assciate with transitions from autocratic rule is the high and restless levels of anticipation by the people that addressing the political problem produces a near-immediate reprieve on socio-economic challenges. Yet governments, transitional ones included, are always slow-moving with any of their salutary impacts lagging way behind.
Suggested Citation: Waikwa Wanyoike, Sudan’s Constitutional Charter is a Ray of Hope but Tough Times Lie Ahead, Int’l J. Const. L. Blog, Aug. 13, 2019, at: http://www.iconnectblog.com/2019/08/sudan’s-constitutional-charter-is-a-ray-of-hope-but-tough-times-lie-ahead