Sudan and the Missing Legislature: Who Has the Legitimacy to Make Decisions of National Consequence?

Dr. Osama Mohamed Abdelrahim

Since the fall of the Salvation regime in April 2019, Sudan has continued to confront its major crises with an executive authority that makes decisions and a sovereign authority that manages state affairs, while the institution expected to oversee the exercise of power and confer representative legitimacy on legislation has remained absent. More than seven years have passed, during which governments have succeeded one another, alliances have shifted, and a war has erupted that threatens the very existence of the state, yet Sudan has still failed to establish an independent legislative authority. Paradoxically, the greater the country’s need for an institution capable of regulating decisions of national consequence and balancing the powers of the state, the more heavily it has relied on arrangements that combine legislative authority with those who are supposed to be subject to its oversight.

This institutional imbalance began with the 2019 Constitutional Document, which provided for the establishment of a Transitional Legislative Council and permitted its powers to be exercised temporarily through a joint meeting of the Sovereignty Council and the Council of Ministers until the council was formed. However, the council never materialised, and its absence persisted despite the political and constitutional transformations the country underwent. The 2025 amendments to the Constitutional Document explicitly reaffirmed that the Sovereignty Council and the Council of Ministers would exercise the functions of the legislative authority until the Transitional Legislative Council was established. Thus, an arrangement originally intended to address a temporary vacuum has endured despite the profound changes affecting the state. The problem has consequently become embedded in the very structure through which power is exercised, as well as in the absence of an independent institution intended to oversee it.

This raises a question that has been postponed for too long: how can a country engaged in a war that threatens its existence, and confronted with the challenges of reconstruction and political settlement, continue to function without a legislative institution responsible for enacting laws and holding the executive authority accountable for its policies and decisions?

The absence of parliament goes beyond the incomplete establishment of constitutional institutions; it concerns the very distribution of power within the state. The legislative authority provides the framework through which the national will is translated into binding laws and public policies are subjected to debate, review, and accountability. The deeper constitutional paradox lies in the imbalance between those who establish legal rules and those who are themselves governed by them. When the power to enact legislation is combined with the power to implement it within the same governing structure, the institutional distance necessary for accountability narrows. Oversight then becomes closer to an authority reviewing its own decisions than to an independent institution holding it accountable in the name of the national will.

This vacuum becomes even more consequential in wartime. Declaring war, ordering general mobilisation, imposing states of emergency, enacting national security legislation, allocating resources to the war effort, and imposing extraordinary restrictions on rights and freedoms are all matters that require a clear constitutional basis and effective institutional safeguards. The 2025 amendments to the Constitutional Document stipulated that declarations of war and states of emergency require the approval of the legislative authority, underscoring the importance of the legislative function in major sovereign decisions. Although sovereign, executive, and legislative institutions have distinct areas of responsibility, an independent parliament remains an essential safeguard for reviewing extraordinary measures, their duration, and their impact on citizens and public finances, as well as for preventing them from exceeding the limits justified by necessity.

The importance of a legislative institution becomes even more apparent as the country moves from war towards peace. The executive authority and military leadership may, within their respective constitutional mandates, take the decisions necessary to conduct military operations and negotiate a ceasefire. However, a comprehensive political settlement that reshapes state institutions and redistributes power requires constitutional legitimacy extending beyond the negotiating parties themselves. Security arrangements, the integration and demobilisation of armed forces, the reconstruction of military and security institutions, and the economic and political obligations arising from a peace agreement may all require legislation, financial appropriations, constitutional amendments, and oversight mechanisms to ensure implementation. Herein lies the danger of a legislative vacuum: the parties may succeed in reaching a ceasefire only to encounter constitutional obstacles when attempting to secure approval for a comprehensive settlement and its long-term commitments.

The question of an intra-Sudanese dialogue stands out as one of the most important tests facing the next phase. However broad its participation may be, dialogue produces understandings and recommendations that require a constitutional process to transform them into binding rules. Who will approve the outcomes of the dialogue? Who will adopt the constitutional amendments arising from it? Who will enact the laws governing elections, political parties, and transitional justice? And who will oversee the implementation of what Sudanese people agree upon? Leaving these matters solely to the parties participating in the dialogue risks transferring disputes from the negotiating table to the arena of constitutional legitimacy, leaving the future of any settlement dependent on the balance of power that produced it.

This debate has acquired additional significance with the reconstitution of the Constitutional Court after years of absence. The existence of an effective constitutional judiciary represents an important step towards protecting rights, reviewing the constitutionality of laws, and adjudicating disputes falling within its jurisdiction. The Constitutional Court and the legislative authority perform complementary functions: the former reviews whether legislation and governmental measures conform to the constitution, while the latter establishes legal rules, debates public policy, and holds the government accountable. The reconstruction of constitutional justice therefore raises a broader question about the continued absence of one of the principal pillars of the institutional balance of power.

In the economic sphere, the need for parliament is even more pressing. Approving the national budget, regulating taxes and fees, overseeing borrowing and public expenditure, reviewing major economic agreements, and scrutinising the performance of government institutions are all fundamental legislative and oversight responsibilities. In a country whose resources have been depleted by war, monitoring the allocation of expenditure among defence, public services, and reconstruction, regulating the management of sovereign resources, and protecting public funds are matters directly connected to national security, social stability, and the restoration of confidence among citizens and investors.

Yet the call to establish a legislative council presents a fundamental dilemma: from where would such an institution derive its legitimacy in the absence of elections, amid widespread displacement, political fragmentation, and an ongoing war? Establishing a council solely through appointments, or according to power-sharing quotas that reproduce existing balances of power, could add another institution to the crisis rather than resolve it. It is therefore necessary to explore a transitional arrangement with a clearly defined duration and mandate, based on broad national representation, publicly disclosed selection criteria, and safeguards for independence and transparency. Its membership should be separated from executive office, and its continued existence should be tied to the holding of general elections.

This requires due consideration of representation for Sudan’s states and regions, communities affected by the war, internally displaced persons, refugees, women, and civil and professional groups. Such representation should be guided by criteria that prevent any single group from monopolising representation or turning the council into an extension of the executive authority. The arrangements for establishing the council should also include mechanisms for reviewing its membership and broadening participation whenever circumstances permit, so that the limitations on representation imposed by the war do not become a permanent political reality.

It would be a mistake to postpone addressing this vacuum until after the war ends. The state needs a legislative institution capable of keeping pace with peace arrangements, monitoring their implementation, and providing the legal framework for political transition and reconstruction. Work should therefore begin now to build a national consensus around the establishment of a transitional legislative council under clear constitutional arrangements that take account of wartime conditions and the requirements of national representation while guaranteeing its independence from the executive authority. Waiting for a complete political settlement could leave the state facing its most consequential obligations without the institutional mechanism necessary to approve and oversee them.

The constitutional framework governing this council must define its relationship with the Sovereignty Council, the government, and the Constitutional Court, specify its powers and accountability mechanisms, and prevent it from becoming an instrument for legitimising decisions that have already been taken. What Sudan needs is a council with genuine legislative, oversight, and accountability powers, enabling the public to scrutinise decisions that affect the future of the state, its resources, and the fate of its citizens.

Perhaps the most dangerous legacy the war could leave behind is the state’s growing acceptance of governing through exceptional measures. Military hostilities may cease while their effects persist within state institutions, particularly when powers concentrated in the hands of a single authority become embedded in the political order that follows. Sudanese people may then discover that they have moved beyond the war only to inherit a system of governance shaped by the exigencies of conflict and sustained long after the circumstances that justified it have disappeared.

For years, Sudan has spent its transitional period searching for the authority that will govern, the settlement that will end the war, and the consensus that will reorder the political landscape. Perhaps the time has come to ask the more pressing question: who has the authority to review these choices, approve them, and hold those responsible for them accountable in the name of the people?

Restoring the state requires restoring the balance among its branches of government and building institutions that regulate the exercise of power and confer legitimacy on decisions of national consequence. Sudan’s most difficult test after the war may be its ability to move from the legitimacy of necessity to the legitimacy of institutions—before the prolonged absence of parliament becomes an unwritten rule governing the country’s future.