A Constitutional Moment in Sudan

Over the past 10 months, Sudan has been rocked by a historic revolution. The popular uprising has overcome institutional obstacles and fears of political violence—made all the more real by the ongoing aftermath of the Arab Spring—to depose the country’s president and pressure the military to transition to a civilian government. In August, the Transitional Military Council and the Forces of Freedom and Change agreed to a new interim constitution, ushering in a delicate phase of the political transition. Now the military and the opposition are jockeying for influence in an interim government that will determine whether it can implement the constitution’s stated goals and necessary systemic changes.

The revolution began in December 2018. The Sudanese Professionals Association (SPA), an illegal professionals’ union that later merged with other civil society and opposition groups to form the Forces of Freedom and Change (FFC), took the lead in organizing regular protests. These were usually met with violence. After months of unabated protests, the Transitional Military Council (TMC), the military power that seized control after the overthrow of Omar al-Bashir—Sudan’s president for the past 30 years—and the FFC signed a transitional constitutional decree on Aug. 4 with a formal ceremony on Aug. 17. Sudan is thus now undergoing a transition as it implements its new constitutional mandate. The interim constitution imposes a 39-month transitional period during which the Sovereignty Council acts as the head of state, a cabinet possesses executive powers, the Transitional Legislative Council has legislative authority and oversight powers over the cabinet, and the Supreme Judicial Council replaces the National Judicial Service Commission.

Though it bodes well that Sudan has a new constitution, the process that produced the document was fraught. The FFC and the TMC were in continuous disagreement over the basic components of the transitional government and negotiations regularly fell apart. The difficult nature of the negotiation process and the fragility of the current situation makes it all the more important to appreciate and recognize the progress that has been made and the need to nurture it. Significant strides have been taken so far, which should be acknowledged, but much work remains to cement efforts taken and avoid backsliding toward authoritarian rule.

Protests Pressure the Military to Make a Deal

Negotiations began shortly after the military overthrew al-Bashir on April 11 and declared itself the new head of state. Protests calling for al-Bashir to step down had begun in December 2018, following austerity measures that radically increased the prices of staple foods and led to a massive cash shortage that exacerbated the financial problems of an already struggling nation. The combination of rising prices, stagnant wages and ongoing repression led to public unrest that a crackdown was unable to stop from spreading. After months of al-Bashir’s ineffective efforts to disperse the protests, the military determined that the situation couldn’t be salvaged with him as president. The military’s turn against al-Bashir bears a similarity to the Egyptian military’s decision to compel Egyptian President Hosni Mubarak to step down in 2011. In both countries, the military has its own interests, political and financial, that were put at risk by their continued fealty to increasingly fragile leaders.

When the TMC took power, it suspended the 2005 constitution, issued a three-month state of emergency and announced that it would rule for two years. By late April, the number of protestors outside of the military headquarters demanding the TMC hand over control to civilians for a two-year transitional period had grown to hundreds of thousands. The opposition called for a civilian-led transitional council with some military representation, a civilian cabinet, and a legislative council. A week after the opposition made those demands, the military agreed in principle to a civilian-military council, though the military and the opposition couldn’t agree on the number of seats it would have, the division of those seats or the length of the transition. In the midst of all of this, Saudi Arabia and the United Arab Emirates (UAE) implicitly lent support to the TMC by promising $3 billion in aid to the country, which is desperately in need of economic support.

Clashes between the military and protesters followed, peaking on June 3 when the Rapid Support Forces (RSF), a paramilitary group accused of egregious human rights violations in Darfur, fired live ammunition at protestors at the military headquarters sit-in and even inside hospitals. Civil society groups said that more than 100 people were killed and 600 injured. Over the week that followed, the military acted without restraint, with soldiers raping women, looting stores, throwing dead bodies into the Nile and imposing a near total internet blackout. For some, the actions of the RSF in Khartoum were reminiscent of its tactics in Darfur. After the massacre, Lt. Gen. Abdel Fattah al-Burhan, head of the TMC, announced that he was canceling all previous agreements with the opposition and that the military would rule until elections took place nine months later.

As the country reeled from the unexpected violence, the opposition went underground and called for a state of civil disobedience to slow the economy. On July 3, FFC leaders agreed to restart negotiations mediated by African Union officials and diplomats from the United States, Great Britain, Saudi Arabia and the UAE. Though Saudi Arabia and the UAE had previously been publicly supportive of the TMC, they softened their stance following the June 3 massacre. The TMC and the FFC finally signed a power-sharing deal on July 17 that established a sovereign council with military and civilian representation but left most of the details on how power would be divided to be decided by a transitional constitution.

The Transition Takes Shape

The constitutional decree signed on Aug. 4 shed more light on what the transitional government would look like. Along with the separation of powers among different branches of government, as mentioned above, comes a separation of powers between different political actors. The Sovereignty Council consists of five members of the FFC, five members of the TMC (which was dissolved after the creation of the Sovereignty Council), and one civilian chosen by consensus. The Sovereignty Council will be chaired by the military for the first 21 months of the transitional period and by civilians for the last 18 months. The council is currently chaired by al-Burhan, the former head of the TMC. Other members include Gen. Mohamed Hamdan Dagalo, also known as Hemedti, commander of the RSF; Yasser Atta; Ibrahim Gaber; and Shams al-Din Kabashi—all former members of the TMC. The FFC representatives are Hassan Sheikh Idris Qadi, a government minister prior to the 1989 coup that brought al-Bashir to power; Al-Siddiq Tawer Kafi; journalist Mohammed al-Fekki Suleiman; Mohamed Osman Hassan al-Taayesh; and Aisha Musa Saeed, the only opposition female representative despite the central role that women have played in the revolution’s success so far. The civilian member agreed to by both the military and the FFC is Raja Nicola Abdel-Messih, a female Coptic judge.

The constitution permits the FFC to name the prime minister, and they selected Abdalla Hamdok, a former economist at the United Nations and al-Bashir’s former nominee for minister of finance, a position that Hamdok declined. Under the constitution, Hamdok is allowed a cabinet of no more than 20 ministers, with ministers selected from a list provided by the FFC, and has the authority to appoint provincial governors. The military, however, retains the power to appoint the ministers of defense and the interior, thereby not completely handing over power to civilians. A cabinet of 18 technocrats was sworn in on Sept. 6 and included Sudan’s first female foreign minister and members of Sudan’s ethnic minority groups.

The Transitional Legislative Council’s membership, which is not to exceed 300, cannot include members of the National Congress or other parties involved in the former regime. FFC members are to make up 67 percent of the council, with the remaining seats to be split between other political parties. The exact division is to be agreed upon by the opposition and the military. Until the Transitional Legislative Council is elected, the Sovereignty Council and the cabinet are jointly responsible for carrying out its mandate. Elections should be taking place soon because the Transitional Legislative Council must begin work within 90 days of the constitution entering force, but no announcements have been made regarding the timing of elections, how the elections will work or who will monitor them.

Signs of Progress, But an Uncertain Future

While progress is tentative and the military could still wrest back control, the current government formation process shows some commitment to leading Sudan toward a civilian-led government. The TMC made significant concessions during negotiations. Though talks previously fell apart when the TMC insisted on absolute immunity for members of the Sovereignty Council and the cabinet, both sides came to an agreement to allow for lifting immunity if the Transitional Legislative Council approves it with a simple majority. The widely feared National Intelligence and Security Services (NISS) was restructured to dissolve its operations unit and limit its power to only gathering and analyzing intelligence. Reforming the NISS was a central demand of the opposition since April, and it likely would have been difficult to come to an agreement without this concession.

The TMC also notably allowed for the formation of an independent commission to investigate the June 3 massacre—a major concession given that the RSF is believed to be responsible for the killings. The constitution does not outline the commission’s scope, but Minister of Justice Nasreldin Abdelbari noted prior to the creation of the commission that it should have a broad investigative mandate that also includes enforced disappearances. The commission was formed in late September, one day before the deadline set by the constitution, and is made up of seven members who were named on Oct. 20. The announcement was made one day before a mass rally organized by the SPA was planned to take place, and though the membership of the committee was announced, thousands still gathered to demand justice for the killed protestors, the dissolution of al-Bashir’s National Congress Party and the arrest of former regime members. The commission is led by human rights lawyer Nabil Adib and includes representatives from the ministries of defense and the interior and a supreme court judge. The inclusion of senior security officers and members of the judiciary is cause for concern, given the stake these actors have in the outcome and the judiciary’s lack of independence and impartiality. It has yet to be seen whether the commission will in fact find the military culpable and hold officials to account, but many analysts believe it is unlikely, especially since Sudan’s National Human Rights Commission has already released a report absolving the junta of any responsibility. It is also concerning that, while the Transitional Legislative Council still does not exist, the Sovereignty Council currently has the authority to decide whether or not it will lift immunity for its members.

Though the constitution makes a credible attempt at outlining the division of power, it glosses over the big questions that can make or break transitions. The transitional constitution stipulates that the interim government will “establish mechanisms to prepare to draft a permanent constitution,” but it fails to go into detail about what those mechanisms will look like beyond clarifying that the Sovereignty Council and the cabinet will appoint the chairman and members of the drafting commission. It doesn’t clarify how many individuals will be involved, how different parts of society will be represented or when the process will start. By leaving this central part of the transition largely undefined, the transitional government leaves room for the entire process to fall apart.

The transitional constitution also fails to make any mention of what a post-transition government will look like. The constitution states that there will be elections after the 39-month transitional period, but whom the people will be electing remains unclear. Will the government continue in its current formation (minus the Sovereignty Council), or will it revert to one led by a president with a bicameral legislature? The constitution does indicate that members of the Sovereignty Council, ministers, governors of provinces and heads of regions are prohibited from running in the elections following the transition. The TMC and the FFC seem to have left this central question to be answered by those drafting the permanent constitution, but given how easily the process can deteriorate if members of the drafting commission can’t come to agreement, saving the question for later creates a precarious situation.

Perhaps the biggest remaining hole is that civilians still do not have oversight over the military. The Sovereignty Council is technically the supreme commander of the armed forces, the RSF and other uniformed forces, but reforming the military is presently the responsibility of the military institutions. The military has also been allowed to name its ministers of defense and the interior. In a country with a true “deep state,” it is essential that citizens have a say in how to shape the military institutions so that they work for the state rather than for themselves. That the military wouldn’t give up the right to oversee itself raises the question of whether it will retain autonomy even after the transition.

Despite this new government pledging a path toward elections and a civilian-led government, protests have continued at the urging of the FFC. On Sept. 12, the SPA organized a march calling for a new head of the judiciary and a new public prosecutor, since those in place at the time were chosen by the TMC prior to the power-sharing agreement and the military members of the Sovereignty Council had previously rejected both nominations made by the opposition. Police responded to the protests with tear gas and the use of batons, angering a public that was promised change. On Oct. 10, the Sovereignty Council announced the appointment of Supreme Court Judge Nemat Abdullah Khair as head of the judiciary, the first female to hold the position, and Taj-Elsir Ali as the public prosecutor. Though these nominations are commendable, the judiciary remains rife with members of the former regime and unless systemic change takes place within it, it remains unlikely that it can be trusted with undertaking genuine judicial reforms.

The legal framework within which the judiciary operates will also prove problematic in the near future. Sudan’s legal system is based on Sharia law, and during negotiations in May, the TMC insisted that any agreement must articulate a commitment to keeping it as such. The constitutional decree makes no mention of the source of Sudan’s future legal system beyond saying that all laws remain in force unless they are repealed. The opposition, if it is truly representative of the people, will likely argue against a continued use of Sharia given that not all Sudanese citizens are Muslims. But the military may not be willing to capitulate on this point. How the two sides solve this dilemma will be an important bellwether to watch. On the positive side, Abdelbari has made significant strides in trying to ensure that respect for human rights is enshrined in the legal system. He announced that steps have been taken to form a legal reform commission to abolish or amend legislation that restricts freedom and to join international human rights conventions. The Sudanese government also signed an agreement with U.N. High Commissioner for Human Rights Michelle Bachelet to open a U.N. Human Rights office in Khartoum along with multiple field offices to work on legal reform and transitional justice. These are reassuring signals regarding the direction the new government is taking, but they will require follow-through.

All in all, the transitional constitutional decree is a noteworthy step toward a civilian-led government, but there are many ways in which the process can still fall apart. It will take real commitment from both the opposition and the military to keep the process moving smoothly and on a path that adequately addresses the people’s needs. It will also require the opposition coming together and actually deciding on what its goals are—not just forming a civilian government but also what that government should look like. As of now, the opposition is not exactly united in its vision; this could lead to fissures once the adrenaline rush that came with the signing of the power-sharing agreement subsides.