Source: Zaid Al-Ali
Senior Adviser on constitution building in the Arab Region at the International Institute for Democracy and Electoral Assistance, Stockholm.
Sudan 1
The Constitutional  Declaration consists of 20 pages, 70 articles and a timeline of key milestones between today and the first meeting of the future sovereignty council, which is to take place on 1 September 2019.
1st substantive point about constitutional declaration, which is relevant for other conflicts (including Libya and Yemen): the declaration replaces the previous constitution, and is now the sole source of constitutional legitimacy in Sudan. Legal revolution in practice.
Article 2(أ) repeals the 2005 constitution, while leaving in force implementing legislation. I’m not in favor of this approach as this is likely to cause unforeseen consequences. Could cause trouble down the line.
Article 3 sets out the nature of the Sudanese state, noting that it is defined by a list of characteristics, including that it is “democratic, parliamentary, plural, decentralised” etc. Islam is not mentioned at all in this list.
Seems obvious that the omitting Islam was deliberate, particularly given the nature of the previous regime. I don’t know if there was much debate about this.
Article 5 provides that all state institutions, as well as “unofficial institutions” are bound by the rule of law. A5(2) clarifies that during the transitional period “rule of law” specifically means accountability.
Article5 (3) provides that there is no state of limitations for war crimes and corruption, despite any provisions to the contrary under Sudanese law.
Article 6 provides that the transitional period will be 39 months long starting from today. A6(2) provides that priority during the first 6 months will be to achieve peace in Sudan.
Article 7 sets out the mandate for the transitional period. There are 16 subsections (4 more than the political agreement). Obviously most of what is provided for here will not be achievable during the transitional period. There’s just too much.
According to Article 7, the transitional period’s mandate includes improving rights of women, making youth more involved, economic reform, legal reform, institutional reform etc These are great objectives but many arent specific to the transition. That distinction should have been made.
Many of the items under Article 7 are specific to transition, including: (1) achieving peace, (3) holding former regime officials accountable, (9-10) setting constitutional process in motion, (15) dismantling previous regime, (16) setting up investigative committee for 3 June massacre.
Article 7 (10) provides that a constitutional assembly must be assembled before end of the transitional period. Not clear to me what that means exactly. Does that mean that a new constitution must be adopted within 39 months?
Section 3 sets out details relating to the transitional system of government. Most of this was originally provided for under the political agreement, so there is much that is not new here.
Article 8 provides that Sudan is a “decentralised state” (note: not federal) composed of three levels of government: central, regional and local. A8(2) states that each level’s responsibilities are set out by law.
Article 10 repeats the political agreement’s wording on the sovereignty council (including that it is to be composed of 5 civilian members and 5 military members and 1 member to be chosen jointly). One change is that A10 sets out date on which power is to be transferred to civilians.
Article 14 makes it clear that the council of minister will be dominated by civilian members. FFC will appoint the PM, who will then select ministers from a list prepared by the FFC. Only exception are ministers of defense and interior who will be chosen by military members of SC.
Article 15(1) specifically states that the council of ministers is responsible for implementing the transitional period’s agenda. This is an improvement on earlier drafts, which did not specifically state which body was responsible for doing this.
Article 15(2) provides that council of ministers “works to end conflict”. A11(1)(س) provides that the SC will oversee the council’s work in this respect. Looking at powers of the Council of Ministers, its clear that it is a real power broker during the transitional period, which is why its so strange that there wasn’t more focus on the council during the negotiations.
In so far as i can tell, the Sovereignty Council will not have the authority to withdraw confidence or dismiss individual members of the council of ministers. Once again, surprising given the focus of negotiations.
Another improvement: earlier drafts stated that to be eligible to be a member of the sovereignty council and/or the council of ministers, individuals had to have two sudanese parents and could not hold a second nationality. That has been mostly dropped.
Article 19 provides that members of the sovereignty council, the PM, individual ministers and governors cannot run in the elections that follow the transitional period. not everyone thinks that this is a good idea. Some expect that it will discourage competent people from joining government.
Article 20 provides that individual (not limited to citizens) who has suffered through the actions of the sovereignty council can bring a claim before the constitutional court or to a regular court. That’s pretty amazing and will likely lead to a flurry of legal activity.
Article 21 is on immunity, which was hugely controversial during the negotiations. Earlier drafts included blanket immunity for all members of the sovereignty council, etc. Now immunity applies to all, but can be lifted by a simple majority parliamentary decision.
Article 23 provides that the transitional parliament is to be appointed. This is so radically different to what is happening and what is being discussed in Yemen and Libya. The Sudanese have no problem simply sweeping everything away.
Article 23(2) provides that 40% of the membership should be women. A23(3) provides that 67% of members will be chosen by FFC, and 33% by groups that have not signed the FFC’s declaration. A23(4) provides that transitional parliament is to be formed within 90 days.
Article 23(5) provides that the parliament should include political, civilian and professional members, sufi movements, rebel groups, etc.
Article 24(3) provides that SC and COM’s members will exercise legislative powers in joint session until parliament is composed (which could take a while).
Article 28 provides that a new High Judicial Council is established, and will replace the current judicial service commission. however A28 doesn’t provide any indication as to what the Council should look like cc:
Article 30 provides that a constitutional court is to be established but doesn’t say when or how it will be done. If tunisia is any indication, this might not happen at all during the transitional period.
Article34 is major, relates to security institution. It provides that “The armed forces and the rapid intervention forces [are] the military institution”. The wording here is very interesting and suggests very careful drafting.
My interpretation of the use of the singular in “military institution” is that the drafters’ intent is that the AF and the RIF are to be part of a single united military institution with the CiCAF at its head.
Article 36 limits the role of the intelligence services to information collection.
Article 39 on state of emergency. Number of issues here, including: (1) no maximum period; (2) parliament has to approve, but what is parliament hasn’t been established; (3) no requirement for geographic limitation; (4) includes list of rights that can’t be suspended.
Final page is a schedule that sets out a list of milestones between today and the first joint meeting between the SC and the COM. Main thing that jumps out is that SC is 2b formed by 18 August, which leaves 14 days for the members to be chosen, including the 11th consensus member