The Constitution in Sudan… The Crisis of Legitimacy and the Stability of the System of Government
Dr. Osama Mohamed Abdelrahim
Since Sudan gained independence on 1 January 1956, the question of the constitution has remained one of the most prominent challenges facing state-building and the stability of the system of government. Constitutional documents have succeeded one another and systems of authority have changed, while national consensus on the fundamental rules governing the state and the transfer of power has remained limited. This situation has been reflected in the stability of political institutions, relations among the branches of government, and the protection of rights and freedoms. It has also contributed to the continuation of disputes over the legitimacy of government and the limits of its exercise of power. Sudan’s experience demonstrates that the constitutional crisis is closely linked to the nature of the political consensus underpinning constitutional texts and the willingness of those in power to abide by their provisions and respect the constraints they impose on the exercise of authority.
Sudan began its independent existence under the Interim Constitution of 1956, which provided a framework for administering the state during the initial phase of national rule, on the understanding that elected institutions would undertake the task of drafting a permanent constitution reflecting national consensus. However, political disagreements and the military coup of November 1958 interrupted the course of constitutional development, ushering in a period of military rule that ended with the October 1964 Revolution. The subsequent democratic period restored constitutional arrangements on an interim basis, but it came to an end with the May 1969 coup before a permanent constitution could be adopted. The same pattern was repeated after the April 1985 uprising, when parliamentary life resumed under transitional arrangements, only for that experience to end with the June 1989 coup. Thus, major political transformations in Sudan have been associated with interruptions in constitutional continuity and repeated returns to the starting point of constitutional foundation.
Perhaps the frequent replacement, suspension, and redrafting of constitutions with every political transformation reflect the extent to which their authority as a point of reference has been weakened in Sudanese practice. A constitution, as the supreme law of the state, is expected to enjoy stability and respect and to serve as the fundamental reference governing the exercise of power and defining its limits. However, repeatedly abolishing or circumventing it whenever governments change has undermined its authority and entrenched the perception that constitutional rules can be reshaped according to prevailing balances of power and interests. This has led to a decline in constitutional culture, weakened confidence in institutional continuity, and transformed constitution-making from a long-term national project into an issue that resurfaces with every change of government.
Sudan adopted a permanent constitution in 1973, followed by another in 1998, before the Transitional Constitution of 2005 was adopted in the aftermath of the Comprehensive Peace Agreement. The 2005 Constitution deserves particular attention because of the broad political participation that accompanied its preparation. Representatives of seventeen political parties and institutions participated in the work of the National Constitutional Review Commission, according to a Sudanese report submitted to the United Nations in 2007. The constitution emerged from a historic settlement between the government and the Sudan People’s Liberation Movement. It included detailed provisions regulating the branches of government, a bill of rights, and foundations for decentralised governance and the sharing of power and wealth. From this perspective, it represents a significant constitutional experience in Sudan’s history in terms of its legal framework and the breadth of participation it attracted compared with several previous experiences, although the two principal parties to the peace agreement retained the decisive role in its formulation.
The importance of the 2005 Constitution lies in its attempt to address issues that had long been central to Sudan’s conflicts, foremost among them the relationship between the centre and the regions, cultural and religious diversity, rights and freedoms, and the distribution of power and resources. However, both its constitutional framework and the political participation that accompanied its drafting faced a difficult test in practice. The transitional period ended with the secession of South Sudan in 2011, while disagreements over governance, identity, and political participation persisted. This experience confirms that sound constitutional provisions and broad consensus around them require political will to honour commitments, institutions capable of enforcing them, and safeguards against allowing partisan and authoritarian interests to prevail over constitutional obligations.
This historical trajectory reveals that one of the fundamental problems has been the association of the constitution with the government in power rather than with a stable national consensus on the foundations of the state. At certain stages, the constitutional document was treated as an instrument for organising the existing system of government and conferring legitimacy upon it. At other stages, political forces focused on competing for power before resolving the constitutional questions that should have provided the foundations for that competition. Disagreements have continued over the nature of the system of government, the relationship between the centre and the regions, the role of religion in legislation, rights and freedoms, and the limits of executive and legislative powers. In the absence of consensus on these issues, constitutional provisions have remained vulnerable to amendment and suspension whenever the balance of political and military power changes.
The constitutional crisis is also linked to the relationship between political legitimacy and constitutional legitimacy, two complementary concepts in building stable governance. Political legitimacy concerns the source of authority and the extent to which society accepts it, while constitutional legitimacy concerns the exercise of that authority in accordance with established legal rules defining jurisdictions, limitations, and mechanisms of accountability. Sudan has witnessed periods in which governments derived their legitimacy from revolutionary, military, or electoral sources. Nevertheless, institutional stability has remained dependent on those governments’ ability to establish a constitutional framework that enjoys public acceptance and regulates the transfer of power. The danger of this imbalance becomes apparent when political or military force turns into a permanent source for determining and changing constitutional rules, thereby depriving institutions of their ability to regulate the exercise of authority.
The December 2018 Revolution and the political changes that followed in April 2019 brought the constitutional crisis back to the forefront. In August 2019, the Constitutional Declaration was adopted to regulate the power-sharing arrangement between the military and civilian components. The document attracted criticism concerning the drafting of certain provisions and the distribution of powers between the Sovereignty Council and the Council of Ministers. It designated the Sovereignty Council as the head of state and granted it powers relating to the approval of appointments and decisions, while assigning supreme executive authority to the Council of Ministers. It also stipulated the establishment of a transitional legislative council within ninety days, with its powers temporarily assigned to a joint meeting of the Sovereignty Council and the Council of Ministers until the council was formed. However, the continuation of this temporary arrangement, resulting from the failure to establish the legislative council, created a situation in which executive authority and legislative functions were exercised within the same governing institutions, weakening independent parliamentary oversight of executive performance.
The problems associated with the 2019 Constitutional Declaration were compounded by the political practices that accompanied it, including disputes over powers, delays in completing the institutional framework, growing disagreements among the partners in government, subsequent amendments related to the Juba Peace Agreement of 2020, and the measures taken in October 2021. Deficiencies in the constitutional arrangements became intertwined with failures in implementation and the management of the political partnership. This experience demonstrated how difficult it was to maintain a stable institutional balance amid multiple centres of decision-making and weak mechanisms for resolving disputes. Although the declaration included principles relating to rights and freedoms and the rule of law, the failure to implement key provisions limited its practical ability to regulate the transitional period. It also underscored the importance of distinguishing, when evaluating the experience, between shortcomings in the constitutional text itself and the responsibility of the parties for implementing it.
One of the most prominent issues in Sudan’s experience is the relationship between the constitution and the distribution of power within the state, particularly in light of geographical and developmental disparities and the country’s social and cultural diversity. Issues relating to centralised and decentralised governance, resource sharing, regional representation, and cultural and political rights have repeatedly been at the heart of national disagreements. Addressing these issues requires a constitutional framework that defines the nature of the state and its system of government, clearly distributes responsibilities among national institutions and local levels of government, and at the same time safeguards the unity of sovereignty and the equal application of the law to all citizens. Protecting rights and freedoms also requires an independent judiciary and effective oversight mechanisms capable of preventing government authorities from exceeding their legally prescribed powers.
The war that erupted in April 2023 has introduced additional challenges for the future of constitutional development, deepening political and security divisions and causing extensive damage to state institutions and society. This makes it particularly important to distinguish between the constitutional arrangements required to manage the period of war and recovery, and the process of drafting a permanent constitution that establishes a stable system of government. Rebuilding the state requires the continuity of public institutions, the restoration of services, the consolidation of the rule of law, and the creation of political and security conditions conducive to broad national participation in discussing constitutional issues. The success of the constituent process will depend on its ability to accommodate Sudan’s diversity, ensure community participation, and prevent the forces holding political or military influence at any particular moment from monopolising the constitution-drafting process.
Emerging from Sudan’s constitutional crisis requires the establishment of stable rules that apply to everyone and define the sources of legitimacy, the mechanisms for attaining and transferring power, the jurisdictions of institutions, and the limits of their responsibilities. This requires broad national dialogue on fundamental constitutional principles, followed by a transparent drafting process based on meaningful representation of society, its political and civil forces, and the country’s regions. It also requires a clearly defined mechanism for adopting the constitution and ensuring its supremacy and protection against suspension or amendment in pursuit of temporary political interests. National will and practical commitment to the law remain essential conditions for transforming constitutional texts into binding rules governing political and institutional conduct.
Sudan’s political history has demonstrated that the proliferation of constitutions and the successive replacement of transitional documents have weakened the constitution’s standing as the supreme reference for governance. It has also shown that broad political consensus and sound legal drafting require institutions capable of protecting and enforcing constitutional provisions. Accordingly, the challenge awaiting Sudan in the post-war period is to establish a national constitutional compact that enjoys broad societal legitimacy, protects the unity of the state and the rights of its citizens, regulates relations among the branches of government, and guarantees the peaceful transfer of power.
A state whose constitution changes whenever its rulers change will continue searching for stability in individuals. The true guarantee of its stability, however, lies in constitutional rules that govern everyone and remain firmly established, regardless of changes in governments or balances of power.
