Military Victories and Constitutional Amendments… Who Holds the Power?
There is widespread debate surrounding the expected amendments to the constitutional document, which would include the cancellation of all clauses related to the Forces of Freedom and Change and the Rapid Support Forces militia, while the peace agreement parties in Juba would retain their share following a sovereign request from the allied political forces to present proposals for amending the 2019 signed document.
With the Sudanese military’s field victories, the time for establishing a new constitutional framework for the post-war period is approaching. According to sources, including media reports, the proposed amendments state that the total number of members in the Sovereign Council will be nine, three of whom represent the Juba Peace Agreement parties, and six will be appointed by al-Burhan.
The amendments, according to sources from “Al-Muhaqqiq,” propose that armed movements retain their ministerial share without choosing their portfolios, and that the validity of the amended document will be for 39 months.
The amendments also include making regional and state governors members of the Council of Ministers, with the Prime Minister having full authority to appoint his cabinet from national competencies, without affecting the share of the Juba Peace Agreement parties, according to Sudan Tribune.
Recently, the proposed amendments to the Council of Ministers were presented but postponed for further consultations, according to a source from “Al-Muhaqqiq.”
Who Nominates the Prime Minister?
Legal expert Taj al-Din Banqa told “Al-Muhaqqiq” that “the legislation of the constitutional amendments created a problem in ministerial appointments after the exit of the ruling party ‘Freedom and Change’ from the partnership with the military component. After the armed movements entered the political scene through the Juba Peace Agreement, the ruling party became the Transitional Partners’ Council consisting of the military, Freedom and Change, and the peace parties, and the ministerial appointments came from them, with each side having nine members.”
He added, “After October 25, 2021, Freedom and Change left the government, and its exit created a missing component in the Partners’ Council, raising constitutional debates over who nominates the Prime Minister.”
On October 25, 2021, the head of the Transitional Sovereign Council, Abdel Fattah al-Burhan, imposed measures, including dissolving the Sovereign and Ministers’ Councils, removing governors, and breaking the partnership with Freedom and Change.
Banqa continued, “After October 25, Hamdok agreed to continue as Prime Minister, but after about two months, he submitted his resignation, and now there is an issue regarding who nominates the Prime Minister.”
He emphasized, “There must be an amendment to the constitutional document granting the head of the Sovereign Council the right to nominate the Prime Minister or specify who has the authority to nominate for this position to resolve the constitutional debate.”
Banqa confirmed that this debate also extends to the Constitutional Court, the Chief Justice, and the Attorney General, adding, “The bodies that nominated after October 25 no longer exist, so amendments are necessary.”
He pointed out that the share of the armed movements is present according to the Juba Peace Agreement, but the appointment of Malik Agar as Vice President of the Sovereign Council is absent.
Who Nominates the Ministers?
He questioned, “Who nominates the 18 ministers in the government? Who has the right to nominate, appoint, and hold accountable and dismiss ministers?”
He continued, “There must be clarity regarding the relationship between the Sovereign Council and the Council of Ministers, as well as the boundaries of authority between the two councils. A constitutional formula is needed, which is why the Sovereign Council has requested the amendments.”
Banqa also mentioned that there is a constitutional debate about the duration of the Juba Peace Agreement, questioning whether it will end after 39 months or upon the completion of the tasks outlined in the agreement, as the security arrangements section has not been implemented.
Criticisms of the Document
Legal expert Dr. Abdullah Darf told “Al-Muhaqqiq,” “We have assigned a committee to make amendments to the constitutional document to accommodate the changes in the country. Of course, the change in April 2019 is known, with the armed forces assuming power by forming the Transitional Military Council, which began its work with constitutional decrees. On August 17, 2019, an agreement was made between the Military Council and the Forces of Freedom and Change to issue a constitutional document, which was adopted on August 20, 2019, by Constitutional Decree No. 30 of 2019, signed by Lieutenant General Abdel Fattah al-Burhan, the head of the Transitional Military Council. The document was amended on November 2, 2020, to include the Juba Peace Agreement and some amendments concerning the judiciary and the appointment of the Chief Justice.”
Darf added, “The constitutional document has faced various criticisms, the most prominent of which is that it is closer to a political declaration than a constitution due to its clear political bias.”
He continued, “Another criticism directed at the constitutional document is that its provisions are exclusionary, as it consolidates power and participation for a specific group, the Forces of Freedom and Change, which contradicts the constitutional principles that establish equality and justice.”
He added, “The preparation of the constitutional document lacked the principle of participation and consensus and was done by a small committee that no one had heard of. Therefore, the document was born with the seeds of disagreement, contributing to the political instability, which is one of the objectives of constitutions.”
Darf clarified that the original constituent authority is the body that creates the constitution, whether in the case of a new state, a coup, or any other change in power, which has absolute freedom in its mission to create the transitional constitution and organize its provisions without being bound by any previous rules, as there is no existing constitution.
The Ruling Authority
He continued, “In Sudan, after the change on April 11, 2019, the ruling authority was the Transitional Military Council, which represented the sovereignty of the country. Since the authority to establish a constitution is purely sovereign, it was the military council that had the authority at that time, and it represents the sovereignty of the state. The military council, therefore, is considered the original constituent authority in establishing the constitutional document.”
He explained, “Although the constitutional document for the transitional period was prepared by an agreement between the military council and the Forces of Freedom and Change, the original constituent authority that represented sovereignty and had the authority to create the constitution at that time was the military council, not the Forces of Freedom and Change. Thus, the document gained validity and enforceability with the issuance of the temporary constitutional decree No. 38 of 2019, signed by Lieutenant General Abdel Fattah al-Burhan.”
He added, “From the above, we see that the original constituent authority that created the constitutional document is the Transitional Military Council, not the Forces of Freedom and Change. Regardless of whether this original authority is the military council or the Forces of Freedom and Change, a new authority emerged in the form of the Sovereign Council after the dissolution of the military council. This new authority is called the secondary constituent authority, and its task is to amend the constitutional document. It derives its power from the provisions of the constitutional document, as it is a derived authority from the constitution.”
Possibility of Amendments
Darf continued, “Therefore, the secondary constituent authority, as we stated, has the right to amend the constitutional document, and its powers are derived from the constitutional document. The authority to amend the constitutional document lies with the Legislative Council, as stipulated in Article 24 of the constitutional document. Since the Legislative Council has not been formed, the governing provision in this case is Article 25-3 of the constitutional document, which stipulates that the powers of the Legislative Council are transferred to the Sovereign Council and the Council of Ministers until the formation of the Legislative Council.”
He confirmed that both the Sovereign Council and the Council of Ministers exercise the powers of the Legislative Council in a joint session, and they can amend the constitutional document by a two-thirds majority of the members of both councils.
He said, “Thus, we conclude that the current secondary constituent authority is the joint meeting of the Sovereign Council and the Council of Ministers when they exercise their legislative powers as transferred to them according to Article 25-3 of the constitutional document.”
Challenges of the Amendments
Legal advisor Ahmed Musa Omar said, “The amendments to the constitutional document, which the political leadership in the country intends to make, have raised and will continue to raise much legal debate before, during, and after the process. This will lead to political conflict and a transition from one stage to another, and may even lead to internal strife if not managed properly, involving various sectors of society.”
He continued, “Many community forces are watching these amendments with great caution. It is necessary to make a constitutional amendment to the document because the current constitutional situation places the terrorist militia and some political forces supporting it in one authority with the national forces defending the country.”
He added, “This puts the judicial institutions in a confusing procedural position, on the other hand, it weakens the appointed government and undermines the legitimacy of the state institutions. There is a need to form a civilian government that opens broader relationships for the country with the international community and fulfills the army’s pledge to establish civilian rule during the transitional period.”
Musa noted that the current constitutional vision regarding forming a government is not suitable for the public, leaving questions about the amendments and the role of political forces in them.
He added, “It is clear that the Forces of Freedom and Change cannot make amendments to the constitutional document and waited for the Juba Agreement to attempt to make amendments that align with the agreement. However, at that time, the Juba forces claimed that they had the authority to align but not to amend. The amendment will happen according to Article 78 of the constitutional document through the Legislative Council. Here, the question arises about whether the Legislative Council is the alternative legislative authority?”
He questioned, “Do we classify the appointed government as a constitutional government or a de facto government? A constitutional government is defined in the constitutional document, and here we distinguish between what is executive and what is constitutional.”
Pre-Transitional Agreement
He responded, “The current government is a full-fledged government with all the authorities and powers, but constitutionally, the government that establishes the alternative legislative authority is the government formed according to the constitutional document.”
He called for a return to the orders for the government’s formation and the Sovereign Council, whether they were appointed according to the constitutional document or constitutional decrees or other powers, as this matter determines the constitutionality of the central government, which may complement the alternative authority and the constitutionality of the Sovereign Council, which may establish the alternative legislative authority along with the civilian government.”
Musa called for a period before the transitional period to be formed by national consensus and governed by constitutional decrees, based on principles in an internal political agreement that creates a new document, or to establish a Legislative Council in agreement with national forces and change forces that have not stained their hands with the blood of the Sudanese people.
Source: Al-Muhaqqiq
