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Constitution-Making Top Priority

Muawad Mustafa Rashid

According to news articles the President of the Transitional Sovereign Council, 1st Lt. Gen. Abdul Fattah Al-Burhan has said, after a regular meeting of the Council last week, that a constitution-making committee will be formed soon to draft a permanent constitution as one of the government’s priorities in the upcoming stage.

However, Sudan has been searching for a permanent constitution since its independence in January 1956 without success. The three democratic periods of 1954-58, 1965-69, 1986-89 failed to produce a single permanent constitution approved by the elected parliaments, they only managed to agree on revising existent constitutions during their short-lived periods, till a permanent one is produced. The short-lived democratic parliaments did not have enough time to agree upon the thorny issues of a permanent constitution.

All the national regimes failed to make a constitution that political forces in the country would accept. Abboud never attempted to make a constitution; he administered the country through constitutional decrees during his six years in office. Nimeiri’s constitution of 1973 was abolished immediately after he was overthrown in April 1985 and Al Bashir’s constitution of 1998 was replaced by an Interim Constitution when he reached a peace settlement with the SPLM in 2005.

Sudan, after more than six decades since independence, is still in search of a permanent constitution and a stable political order. It is a sad story of instability and political failure. The failure during the democratic periods was due to disagreements among political parties on major constitutional issues; the rejection of the two constitutions made by Numeiri and Al Bashir was based on the fact that they were crafted by military regimes that had no democratic mandate and which granted the head of state dictatorial powers over all institutions of the state without being checked by parliament or by the judiciary.

A major shortcoming of all the attempts of constitution-making in Sudan was that the drafting was assigned to a small committee either of experts in the case of military regimes or to one comprised of representatives from political parties during the era of democratic governments. None of the governments since independence tried to engage or to sound public opinion on a significant scale over the major issues of the constitution. It was not surprising that the general public did not give a dam to the abolishment of military constitutions or the termination of the process of constitution-making by democratic governments. They were simply not part of any of them, and the outcome did not address their concerns about the share of power and wealth in the country.

It is time for the Sudanese people to try a new method of making their constitution; hopefully, they will be more successful this time in reaching a wide agreement on the substantive issues of the constitution. It is a good sign that this time there is a real interest from some government units, civil society organizations, research centers, and international bodies about the making of the constitution for Sudan. However, this interest should be utilized to broaden the public debate and participation in the making of the constitution.

The objective of making the constitution should be clear in the minds of all political forces that it is the political stability of the country rather than the capture of power or the consolidation of power by this or that party. The constitution is not simply a legal document that defines the institutions of the state, how they are constituted, what their jurisdictions are, and what the rights of the citizen are. It is in the first place a political contract between the different communities of the state; it should reflect their values and cultures and caters to their interests and ambitions.

Sudan is a multiple ethnic and cultural society; it has not yet integrated into a unified nation with a clear identity and objectives. Those diverse groups have to be engaged in the making process to accept the constitution as the legal framework for organizing the society, distributing the wealth and power, administering the state, and governing the peaceful rotation of authority. Thus, constitution making has to be a wide societal process in the full sense of the word.

However, this is not going to be an easy or short process, the divisions between the various political, cultural, and ethnic groups in the country are so diverse that it will take a long time and tough negotiations to reach common ground on the important and delicate constitutional issues.

During the short democratic periods, the major controversy about the constitution was focused on the following issues: the choice between the parliamentary system and the presidential one, the degree of decentralized government to solve the problem of Southern Sudan, the electoral law to include special seats for graduates or not, and the Islamic or non-Islamic nature of the state. During the military regimes of Numeiri and the first term of Al Bashir (1997-2005), the limited public debate turned to the issues of the devolution of power to the provinces, the legislative powers of the president, the number of terms in office allowed to the president, and the freedom of association for political parties.

The controversial issues are indeed many, problematic, and not easy to be resolved. It requires time, patience, and political will among political parties to make the necessary compromise in the end. The question is: how to go about the process of engaging public opinion on important constitutional issues?

At all stages, the process of making the constitution should be in public and open for debate and discussion. The primary objective of the whole process is to reach a wide agreement from all sectors of society on the outcome. Political compromise and settlement are essential in making the constitution, it cannot be judged by a majority against a minority.

Sudan should learn a lot from its previous failures over the years to produce a stable and agreed-upon constitution. The time-consuming and laborious process for constitution-making suggested in this article is worthwhile if the outcome at the end is a satisfactory document for the vast segments of the Sudanese nation.

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