Sudan’s controversial constitutional declaration has created issues for the main opposition coalition

The constitutional agreement between the Sudanese military and the main opposition coalition, the Forces of Freedom and Change (FFC) paves the way for a transition to civilian-led government. However, the FFC has come under pressure for compromising too much in their desperation to reach a deal.

In part one, we will briefly go over what is inside the deal, and how legal and political experts have criticised it.

In part two, we will take a closer look at the backlash that the FFC leaders have faced: from radical elements within the broad coalition, as well as accusations that they are hungry for power, and are guilty of ethnic and gender exclusion.

The solutions for Sudanese democratic progress were calls for the FFC to “soothe the angry masses,” and for the USA to isolate the military junta.

Ahmed Al Rabiah, an FFC leader (left) and deputy chief of the transitional military council Himedti (right) at the constitutional agreement ceremony. Himedti holds up the document upside down.

PART ONE

1. What is inside the constitutional declaration?

Thanks to ConstitutionNet.org, who kindly translated Sudan’s draft constitutional charter into English, we can summarise its key points.

a)Timeline

· August 17 - Military and FFC expected to put final signatures on the agreement, FFC expected to name Prime Minister shortly thereafter

· August 18 - Formation of sovereign council to be announced

· August 28 – Cabinet to be announced

· September 1 – Cabinet to meet sovereign council

· Parliament to be appointed within three months

b) Sovereign Council

· 39-month transitional period, during which an 11-member sovereign council will govern Sudan

· The Sovereign Council will be composed of five military figures and five representatives of the main opposition coalition, Forces of Freedom and Change, as well as a neutral civilian.

· The military will lead for the first 21 months, and the civilians will take-over for the remaining 18.

· The sovereign council will oversee the formation of a 20-member cabinet to govern Sudan’s day-to-day affairs, with the Forces of Freedom and Change selecting the Prime Minister (although the Sovereign Council must confirm the appointment)

· The military, however, will appoint ministers of defence and the interior.

· Peace in Sudan’s conflict zones will be prioritised in the first six months

c) Parliament

· A legislative body (parliament) is to be formed within 90 deals of the deal’s signing.

· Parliament is to be comprised of 300 people, with a 40% quota for female representatives.

· The FFC will have 67% seats, with the remaining 33% for parties not linked to Omar Al Bashir’s regime

d) Security

· The Rapid Support Forces militia is to be under the command of the Sudanese armed forces

· The General Intelligence Services (formerly the National Intelligence and Security Services) is to become a regulatory body solely concerned with gathering and presenting information to relevant authorities.

· GIS is to full under executive authority and the sovereign council.

e) Rights

· Every citizen has the right to freedom of peaceful assembly, expression, religious belief, spreading information and security

· Internet access can be blocked if it interferes with “order, security and public ethics.”

Article 7 of the Constitutional Declaration lays out the mandate for the transitional period (via ConstitutionNet.org)

2. Economic implications?

With Sudan’s sponsor of terrorism designation continuing to be a severe obstacle towards much-needed debt relief from the World Bank and the IMF, as well as international investment, the constitutional declaration would “end Sudan’s listing as a [state] sponsor of terrorism,” according to Mahmoud Dirir, the Ethiopian mediator who helped broker the deal. (Multiple sources, August 4)

However, multiple sources (August 7) reported that the US State Department’s undersecretary for political affairs – David Hale – said that the US must first resolve longstanding issue with Sudan before it can consider removing it from its list of state sponsors of terrorism.

3. Legal experts criticise the constitutional declaration

A twitter thread from Zaid Al-Ali, an expert on Arab constitutions, highlighted some of the “surprises” within the constitutional declaration (August 4). Al-Ali previously called for Sudanese political and civilian groups to develop a roadmap for constitutional reform that can “adapt to evolving circumstances on the ground” (Washington Post, June 27).

I. Al-Ali argued the following:

· The constitutional declaration repeals Sudan’s 2005 constitutional, but leaves in force its implementing legislation, which is “likely to cause unforeseen consequences,” and “trouble down the line.”

· The mandate for the transitional period has 16 objectives, “most of [which] will not be achievable [in 39 months]…there’s just too much.”

· Mandates such as improving women’s rights, involving youth and various reforms are “great objectives but [not] specific to the transition.”

· The declaration is unclear about what leading the sovereign council will entail. Will the leader set the agenda?

· Al-Ali noted that sovereign council decisions will require 2/3rds of approval, meaning that a minority of military representatives can block any decision.

· Sovereign council members, the prime minister and cabinet ministers cannot run in elections after the transitional period – which is expected to discourage competent people from joining the government.

· Individuals can bring a claim against the sovereign council to a constitutional court, but no time-frame is set for the establishment of one. Which could result in a situation as in Tunisia’s transitional period, where it was not established at all.

· The state of emergency laws lack a maximum period or geographic limitation and must be approved by a Parliament that has not been established yet.

II. Sudanese lawyer Ahmed T. El-Gaily (August 4) – who advised the FFC on the constitution - identified “key” gaps in the declaration, citing:

· The military’s ability to veto the appointment of the Prime Minister

· The sovereign council, including its military members, will appoint electoral and constitutional commissioners.

· Military establishments can reform themselves, submitting only to the sovereign council

· The prime minister’s powers are limited in comparison the sovereign powers of the President.

III. Lawyers from Sudanese civil society organisations expressed surprise at the FFC’s unwillingness to correct measures that undermine the transitional government’s civilian nature, including:

· The military’s exploitable undefined powers

· The military’s ability to veto the sovereign council

· Immunity granted to government officials. (August 5, Foreign Policy).

4. Political experts criticise the constitutional declaration

Dame Rosalin Marsden, formerly the UK ambassador to Khartoum, told the Financial Times (August 4) that controlling the Rapid Support Forces remains a “huge” challenge.

Sudanese academic at the Rift Valley Institute Magdi el-Gizouli questioned whether the declaration to formally put the RSF under the Sudanese army’s control will change anything given that “[the RSF] is a private militia…not under the authority of anybody other than its commander.” (Reuters, 3 August).

Sudan expert at Harvard, Eric Reeves, argued that Himedti’s continued control over the RSF enables him to “threaten any number of actions if the army generals do not [give in] to his demands.” (AFP, August 6)

El-Gizouli also questioned how Sudan’s spy agency (now renamed the General Intelligence Service) can be disciplined into a democratic framework without authority over its budget, despite the declarations claim that GIS will fall under the sovereign council and executive authorities. (AFP, August 6)

In addition, editor-in-chief of Sudan’s Elaf newspaper Khalid Al Tijani said there are no guarantees that the FFC will remain in-tact, despite securing 201 of 300 parliamentary seats. (AFP, August 6).

Al Tijani’s insight is telling, given the problems facing the FFC - signifying mounting pressure from Sudanese rebels, political parties, the public and internal divisions that are being played out openly.

PART TWO

While the FFC coalition faces internal divisions from its more radical elements such as the Sudan Revolutionary Front (1) and the Communist Party (2) - it also continues to face questions marks surrounding its ethnic (3) and gender (4) representation.

In addition, the FFC’s pragmatic compromises continue to be plagued by allegations of power-seeking (5).

1) Rebels reject constitution

The finalising of the power-sharing agreement was delayed by the Sudanese Revolutionary Front’s rejection of it, highlighting tensions within the FFC coalition.

The SRF alleged that FFC’s civilian leaders failed to include the SRF’s proposals for peace in the political agreement. This led to talks between the parties in Addis Ababa.

While FFC’s civilians insisted that the SRF positions will be put in the constitutional declaration – the SRF said that this would be legally inconsistent – as the political agreement is the source, and the constitutional declaration is a decree. The SRF therefore requested a delay in the formation of a transitional authority until peace deals are reached for Darfur, the Blue Nile and Kordofan. (Sudan Tribune, July 21).

Multiple sources (August 5) reported the SRF also rejected the constitutional declaration, due to its failure to include an SRF-proposed provision that potential peace agreements prevail over all charters. The SRF also alleged that the peace pact within the constitutional declaration excludes the SRF’s political groups.

2) Communists walk out of negotiations

To compound matters for the FFC, the Communist Party - a senior party within the FFC coalition - withdrew from the power transfer talks, protesting that the political and constitutional power-sharing documents “stipulate the complete hegemony of the junta over the Sovereign Council.” (Multiple sources, August 1).

The Communist Party seemingly felt that the FFC was compromising too far with the military, taking issue with the junta’s ability to appoint the ministers of defence and the interior to rule over Sudan’s security apparatus, and claiming that the composition of the army will be changed by the incorporation of militias (such as the RSF) into its ranks.

Moreover, the Communist Party rejected the joint military and prosecutor general’s investigation into the June 3 massacre, claiming that its mission was to “blur the facts.”

However, it would be hard to blame the FFC for the lack of accountability for the massacre. Foreign Policy (July 26) reported that the US halted plans to sanction Himedti and the RSF for their role in the massacre, in order to not upset the “fragile” power-sharing negotiations.

3) Sudan’s marginalized reject constitution

Radio Dabanga (August 6) reported that the Darfur Displaced General Coordination also rejected the constitutional declaration, labelling it a “betrayal of the blood of the martyrs.”

The DDGC had also previously rejected the political charter, saying that it contained “semi-solutions and compromises”, made clear that Sudanese living in the peripheries are not involved in state decisions.

Reflecting a view of the FFC as a continuation of riverain Arab elitism over Sudan, Darfuri rebels have criticised the power-sharing deal as “yet another incarnation of the centre’s domination on the peripheries” (Foreign Policy, July 9) – which Himedti may exploit by building up a support-base in Sudan’s peripheral regions.

However, Sudan experts told AP (August 8) that Himedti’s violent past in Darfur could mean that he has made too many enemies to buy support in the peripheral regions.

4) Women’s under-representation in the FFC

There is also the issue of women’s under-representation in the FFC negotiating team – making it “extremely closed-minded and [unable] to come up with results that represent the revolutionary forces,” according to Hala Alkharib of the Strategic Initiative for Women in the Horn of Africa (Independent, August 4).

Alkharib and female revolutionary leader Samahir Mubarak stated that women will not vote for or join political parties if their views are not going to be represented.

5) Allegations of FFC power-hunger

The FFC has already faced suspicions that it is “disregarding the demands of the revolution” in seeking to share power with the military junta, with accusations that it has concealed information about the negotiation process from the public, as indicated in protests outside the Sudan Professionals Association’s HQ (which initiated the FFC). (Radio Dabanga, 24 July).

Indeed, some FFC negotiators have allegedly accused the SPA of desperation to get political power. (Foreign Policy, August 5).

Public anger has also been directed towards the political parties within the FFC, with Sudanese activists taking to the streets to call for a transition government of experts and technocrats, rather than those formally affiliated to political parties. (AP, July 25).

As a result, FFC negotiators were criticised for their compromises in pursuit of the constitutional declaration, with one protester saying that “it is unacceptable to forget the blood of the martyrs [who] drove us to this defining moment.” (AFP, August 3).

Ahmed El-Gaily, who legally advised the FFC on the constitution, told Foreign Policy (August 5) that the FFC pursued a “highly problematic approach” to negotiations, whereby it rationalised its rush to enter the transitional period (thereby gaining power) by seeking to control the damage later.

3. Solutions

Solutions suggested for Sudanese democratic progress have been sparse in the media for the last two weeks, as media activity slows down during summer-time. The two most relevant calls to action were directed towards the FFC and the US.

a) A disciplined, responsive FFC

Given the heightened pressure on the FFC from the street and political groups within it, Ahmed Aboudouh calls for the FFC to maintain their unity, discipline and the public support it relies on. (Independent, August 5).

Aboudouh calls for the FFC to conjure up an economic “plan B that can soothe the angry masses,” adding that a restructured legislative system and clear roadmap to reshape the identity of institutions will be necessary for any vision for a new Sudan to succeed.

b) US leadership

In The Hill (July 30), Kate Knopf, the director of the Africa Center for Strategic Studies, and Payton Knopf, an adviser to the Africa Program at the US Institute of Peace, call for the US to threaten the military will international isolation unless it cedes power, thereby equalising the balance of power between the military and the FFC.

However, according to Foreign Policy (August 5) – the US’ position in Sudan is aligned with the pro-junta Saudi-UAE-Egypt axis, with emphasis on Sudan’s importance as a stability and counter-terrorism ally, rather than democratic change.

This suggests that Sudanese democratic campaigners who would welcome US support must find pragmatic, strategic arguments to influence a shift in US policy priorities.