Report

Modulating the Constitutional Document or Manipulating a Constitutional Declaration?

Professor Mekki Medani El Shibly
Executive Director – Mamoun Behairy Center
Mobile:+249 90 090 8898

On February 8, 2022, the Forces for Freedom and Change (FFC) presented a roadmap to the United Nations Mission in Sudan “UNITAMS” to address the current political impasse. The map entails the establishment of a new constitutional set-up governed by a Constitutional Declaration that conceives a transitional civilian authority with popular legitimacy to replace the 2019 constitutional document amended in 2020. The road map also includes entering into a transitional period of no more than two years shielded by new constitutional arrangements that frame the limitation of the army’s role in governance.

The new suggested transitional authority includes four bodies: a limited civilian Sovereignty Council, a Council of Ministers that enjoys all the powers granted in a parliamentary system, chaired by a prime minister chosen by the forces of the revolution, the ministers chosen from national competencies. The proposed authority suggested by FFC also includes the Legislative Council, in which women represent at least 40%, and youth and resistance committees are represented fairly, in addition to the judiciary and the public prosecution.

FFC road map proposes the establishment of a high-level international mechanism to guarantee the new constitutional setup that includes the Troika countries, the European Union, and the representation of neighboring African and Arab countries that share common interests with Sudan. The representative of the Secretary-General of the United Nations in Sudan is proposed to be a rapporteur of this committee.

A careful reading of the structure of the constitutional declaration that FFC is declaring on February 22, 2022, reflects the absence of fundamental changes to the Constitutional Document 2019 amended in 2020. Even the minor amendments proposed by FFC can be easily incorporated into the Constitutional Document.

FFC’s intention of abandoning the Constitutional Document will plunge the transitional parties into a sterile debate over the proposed Constitutional Declaration, which the remaining little time in the transitional period cannot accommodate. Hence, the civil and military transitional parties and the components of the peace process must be settled for introducing limited amendments targeting the causes of the political impasse inflicted by the military takeover on October 25, 2021.

To avoid a repetition of the difficult labor experienced in agreeing on the Constitutional Document in 2019, all transition parties should engage without delay to amending the paragraphs of the Constitutional Document targeting the diffusion of the current political impasse, bearing in mind the dire need for creating the appropriate environment for maximizing the gains made from peace and working together to extend its scope by integrating movements that are not signatories to the Juba Peace Agreement.

The following is a proposal that includes a limited amendment to the Constitutional Document targeting only the paragraphs essential to spare Sudan from falling from the brink of the abyss in the aftermath of the political crisis caused by the army takeover on October 25, 2021. This proposal avoids introducing multiple secondary amendments that impair the coherence of the Constitutional Document and averts the replication of the difficult labor suffered in its approval in 2019 and its amendment in 2020.

Paragraph (4) related to Article 11 of the 2019 Constitutional Document.

Clause (2) shall be deleted and replaced with the following new clause:

(2)  The Sovereignty Council shall consist of eight members as follows:

  • Three civilians of independent competencies, one of whom will be the Chairman of the Sovereignty Council during the remainder of the transitional period.
  • Three members of the independent competencies were chosen by the parties to the peace process that signed the Juba Agreement for the Peace of Sudan.
  • Two military personnel were chosen by the military establishment, provided they are not former members of the Sovereignty Council.

 Paragraph (7) related to Article (15) of the 2019 Constitutional Document.

Clause (1) shall be deleted and replaced with the following new clause:

  • The Council of Ministers consists of a prime minister of independent competencies, and several ministers of independent competencies, appointed by the Prime Minister, provided that 25% of them are chosen by the parties to the peace process that signed the Juba Agreement for Peace in Sudan from independent competencies. The Sovereignty Council approves all members, including the ministers of defense and interior, who are nominated by the military establishment from those who have not held constitutional positions during the elapsed period of transition.

Paragraph (10) related to Article (80) of the “Constitutional Document for the Transitional Period Amended in 2020”.

  • Article (80) related to the establishment of the Council of Partners for the Transitional Period shall be repealed.

It is crucial to recognize that these amendments to the Constitutional Document fundamentally meet the aspirations of the main actor in the current political arena, the Resistance Committees, to terminate the turbulent partnership that incapacitated what elapsed from the transitional period and establish a civil authority of independent competencies allows the political entities to focus on the preparation for elections at the end of the transitional period. Nevertheless, the proposed amendments do not fundamentally contradict the perception of the rest of the civil and military parties to the transition, including the components of the peace process.

To avoid the violations inflicted on the Constitutional Document by all civil and military transitional partners, international and regional guarantors should attest to its amended text. These guarantors include the United Nations, the United States, the African Union, the League of Arab States, the European Union, and the Troika countries. It is also necessary for these guarantors to facilitate the reintegration of   Sudan into the international community, and assist in the restoration of the flow of material and technical aid. At the national level, all transition civil and military components should endeavor to transform the remainder of the transitional period into an environment of harmony, justice, and tolerance in preparation for the anticipated democratic transition.

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