2019 Sudanese transition to democracy
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politics and government of
The 2019 Sudanese transition to democracy formally started on 5 July 2019.
Omar al-Bashir overthrew the democratically-elected government of Sadiq al-Mahdi in 1989 and was himself overthrown in the April 2019 Sudanese coup d'état, in which he was replaced by the Transitional Military Council (TMC) after several months of sustained street protests. Following further protests and the 3 June Khartoum massacre, the TMC and the Forces of Freedom and Change (FFC) alliance agreed on 5 July 2019 to a 39-month transition process to return to democracy, including the creation of executive, legislative and judicial institutions and procedures.
On 17 July, the TMC and FFC signed a written form of the agreement. The Darfur Displaced General Coordination opposed the 5 July verbal deal and the Sudan Revolutionary Front, the National Consensus Forces and the Sudanese Journalists Network opposed the 17 July written deal. On 4 August 2019, the Draft Constitutional Declaration was initially signed by Ahmed Rabee for the FFC and by the deputy head of the TMC, Mohamed Hamdan Dagalo ("Hemetti"), in the presence of Ethiopian and African Union mediators, and it was signed more formally by Rabee and Hemetti on 17 August in the presence of international heads of state and government.
Previous democratic experiences
Sudan's 1948 election took place while Sudan was still under Anglo–Egyptian rule, with the question of union or separation from Egypt being a major electoral issue. After independence in 1956, the following half century included a mix of national elections, constitutions, coalition governments, coups d'état, involvement in the Chadian Civil War (2005–2010), islamisation under the influence of Hassan al-Turabi and the secession of South Sudan.
5 July 2019 verbal deal
On 5 July, with the help of African Union mediator Mohamed El Hacen Lebatt and Ethiopian mediator Mahmoud Drir, a verbal deal was reached by the TMC and the Forces of Freedom and Change (FFC) alliance, including Siddig Yousif and Ibrahim al-Amin, on the formation of governmental institutions, under which the presidency of the transitional government would rotate between the military and civilians.
The initial verbal deal agreed to by the TMC and the civilian negotiators included the creation of a "sovereignty council", a 39-month transition period leading to elections, a cabinet of ministers, a legislative council, and an investigation into the Khartoum massacre.
Tahani Abbas, a cofounder of No to Women's Oppression, stated her worry that women might be excluded from the transition institutions, arguing that women "[bear] the brunt of the violence, [face] sexual harassment and rape" and were active in organising the protests. The Minnawi and al-Nur factions of the Sudan Liberation Movement/Army, a Darfur armed rebel group, both stated on 5 July that they rejected the deal, arguing that the deal would not achieve an "equal citizenship state". The Rapid Support Forces attacked people celebrating the deal in Abu Jubaiyah by beating them, firing tear gas, and shooting live bullets into the air. One person was hospitalised for serious wounds.
Following the 5 July verbal agreement, drafting of a written agreement by a committee of lawyers, including African Union lawyers, was promised to take place "within 48 hours". On 9 July, the 4-person drafting committee, including Yahia al-Hussein, stated that the text had not yet been finished. The new time schedule was for the agreement to be signed "within ten days" in a ceremony including regional leaders. On 13 July, three sticking points delaying the signing of the agreement included the FFC requiring the human rights investigation committee to exclude people suspected of responsibility or implementation of the 3 June Khartoum massacre; the FFC requiring a limit on the time frame for appointing the legislative council; and disagreement between the FFC and the TMC regarding TMC "endorse[ment] or [approval] of the nominees". A written form of the deal as a "political agreement", with a constitutional declaration to follow later, was signed by the TMC and FFC on 17 July.
Objections to the 5 and 17 July 2019 agreements
The Darfur Displaced General Coordination, representing people from Darfur displaced in relation to the Darfur genocide, objected to the 5 July verbal agreement, describing it as "flawed in form and content" and "a desperate attempt to sustain the rule of the National Congress Party", the dominant political party of Omar al-Bashir's 30-year rule of Sudan.
In the days following the 17 July written deal, rebel groups represented by the Sudan Revolutionary Front (SRF), the National Consensus Forces (NCF), a coalition of political parties that opposed al-Bashir's National Congress, and the Sudanese Journalists Network objected to the signed written agreement. The NCF and the SRF said that the FFC had signed the deal in Khartoum without waiting for the NCF and other opposition forces, who had still been discussing the proposed deal in Addis Ababa. The NCF stated that the deal "goes towards granting of power to the military junta", and that the deal does not provide for an international investigation into "crimes committed throughout" al-Bashir's rule. The Sudanese Journalists Network said that the written deal "strengthens the power of the junta, ... and tries to usurp power by stealing the efforts, sweat and blood of the revolution." The NCF called for the draft constitutional declaration to be circulated for comment prior to signing so that it take into account NCF's concerns.
4 August/17 August Draft Constitutional Declaration
On 4 August 2019, the Draft Constitutional Declaration (or Draft Constitutional Charter) was signed by Ahmed Rabee for the FFC and by the deputy head of the TMC, Mohamed Hamdan Dagalo ("Hemetti"), in the presence of Ethiopian and African Union mediators. The document contains 70 legal articles, divided into 16 chapters, defining transitional state bodies and procedures. Rabee and Hemetti signed the document more formally on behalf of the FFC and the TMC on 17 August 2019, in the presence of Abiy Ahmed, Prime Minister of Ethiopia, Salva Kiir, President of South Sudan, and other heads of state and government.
Objections to the 4 August 2019 Draft Constitutional Declaration
The Darfur Displaced General Coordination objected to the 4 August Draft Constitutional Declaration, arguing that peace requires the disarming of militias; provision of all five suspects wanted in the International Criminal Court investigation in Darfur and the expulsion of new settlers from traditionally owned land in Darfur. Minni Minawi stated that the SRF objected to the Draft Constitutional Declaration on the grounds that an agreement made among component groups of the FFC in Addis Ababa concerning mechanisms for a nationwide peace process in Sudan was excluded from the declaration and that the declaration constituted a power-sharing agreement between the FFC and the TMC.
TMC–FFC Political Agreement and Constitutional Declaration
Elements of the agreement included:
- the creation of an 11-member Sovereignty Council with five military members and five civilians to be chosen by the two sides and a civilian to be agreed upon mutually;
- a transition period of 3 years and 3 months, led by a TMC member for the first 21 months and a civilian member of the Sovereignty Council for the following 18 months;
- the creation of a constitutional document for the transitional period; Article 9.(a) of the 4 August Draft Constitutional Declaration defined the Sovereignty Council as the head of state of Sudan;
- a Council of Ministers to be appointed mostly by the FFC, with the Sovereignty Council and its military members having a partial role in the decision;
- a ban on members of the transitional period Sovereignty Council, Council of Ministers and state governors from being candidates in the first elections ending the transitional period;
- a legislative council to be created within three months of the creation of the Sovereignty Council;
- the creation of a Sudanese "precise and transparent", independent investigation into the Khartoum massacre and "related" human rights violations incidents;
- a six-month peace program for Darfur, Blue Nile and South Kordofan;
- initiating a procedure for preparing a new constitution;
- establishing transitional justice mechanisms.
Democratic elections to determine leadership following the 39-month transition period were mentioned in the initial verbal agreement and briefly referred to in the written agreement. Article 19 of the Draft Constitutional Declaration forbids "the chairman and members of the Sovereignty Council and ministers, governors of provinces, or heads of regions" from "[running] in the public elections" that follow the 39-month transition period. Article 38.(c)(iv) of the declaration states that the chair and members of the Elections Commission are to be appointed by the Sovereignty Council in consultation with the Cabinet.
Draft Constitutional Declaration
The 17 July written deal stated, as did the initial verbal deal, that a constitutional agreement for the transition period was planned, and that preparations for a creating a new permanent constitution would be made during the transitional period. Sudan's previous constitution was the 2005 Interim National Constitution.
On 25 July, Mohamed El Hafiz of the FFC legal committee stated the FFC's requested changes to a draft of the constitutional declaration. The FFC removed a draft article of the declaration that would have giving immunity from prosecution to TMC and Sovereign Council leaders. The FFC required that reform of the security forces be carried out by a civilian, not military authority; that the Sovereign Council should only have ceremonial powers; that the Sovereign Council and Cabinet should together prepare laws pending creation of a Legislative Council; and that the Legislative Council should have full legislative powers, including the creation of land, law and election reform commissions. The FFC's comments on the draft covered "85 articles and items".
The Constitutional Declaration was signed by Ahmed Rabee for the FFC and deputy head of the TMC, Mohamed Hamdan Dagalo, on 4 August 2019, in the presence of Ethiopian and African Union mediators. Full ratification was planned for 17 August 2019.
The 11-member Sovereignty Council is defined by Article 9.(a) of the 4 August Draft Constitutional Declaration as the head of state of Sudan. Planned membership of the Sovereignty Council includes military members Abdel Fattah al-Burhan, Mohamed Hamdan Dagalo ("Hemetti"), Lieutenant-General Yasser al-Atta, and two other military members chosen by the TMC; five civilians chosen by the FFC: Aisha Musa el-Said, Siddig Tower, Mohamed Elfaki Suleiman, Hassan Sheikh Idris and Mohammed Hassan al-Ta'ishi; and a civilian, Raja Nicola, chosen by mutual agreement. The Sovereignty Council is mostly male, with only two women members: Aisha Musa and Raja Nicola.
Council of Ministers
The Political Agreement gave the FFC the choice of the ministers of the transitional government, with the sovereignty council holding the right to veto nominations, apart from the defence and interior ministers, who are to be "selected" by military members of the Sovereignty Council and "appointed" by the prime minister. The prime minister can "exceptionally nominate two party qualified members to fulfill ministerial positions."
Chapter 5 (Article 14) of the Draft Constitutional Declaration defines the Transitional Cabinet in similar terms, but gives the Prime Minister the right to choose the other members of the cabinet from a list provided to him or her by the FFC. The cabinet members are "confirmed by the Sovereignty Council".
Article 16.(a) of the Draft Constitutional Declaration requires the Prime Minister and members of Cabinet to be "Sudanese by birth", at least 25 years old, a clean police record for "crimes of honour". Article 16.(b) excludes dual nationals from being a Minister of Defence, Interior, Foreign Affairs or Justice unless an exemption is agreed by the Sovereignty Council and the FFC for the position of Prime Minister, or by the Sovereignty Council and the Prime Minister for ministerial positions.
Abdalla Hamdok, a Sudanese public administrator who served in numerous international administrative positions during the late twentieth and early twenty-first centuries, was nominated by the FFC as Prime Minister, with a formal appointment scheduled for 20 August 2019.
Transitional Legislative Council
The transition deal (23.(4) of the Draft Constitutional Declaration) sets the transitional Legislative Council to be formed three months after the transitional period starts, after the sovereignty council and cabinet are determined.
In the 17 July deal, the FFC and TMC agreed to disagree on the proportions of membership of the Legislative Council. The FFC "confirm[ed] its adherence" to selecting two thirds of the Council's members and the TMC "confirm[ed] its position on reviewing the legislative council membership percentages." The FFC and TMC agreed that their respective members of the Sovereignty Council would continue "discussion" on the issue. In 23.(3) of the 4 August Draft Constitutional Declaration, 67% of the members are to be selected by the FFC and 33% by "other forces" who didn't sign the FFC declaration of January 2019.
Article 23.(3) of the 4 August Draft Constitutional Declaration sets a minimum 40% quota for women membership of the Transitional Legislative Council. Article 23.(1) sets the maximum membership to 300 and excludes membership by members of the National Congress that dominated under al-Bashir and of political forces that participated in the al-Bashir government. Membership is open, under Article 25, to Sudanese nationals at least 21 years old, who "[possess] integrity and competence", have not been criminally convicted for "honour, trustworthiness, or financial responsibility", and can read and write.
Chapter 8 of the 4 August Draft Constitutional Declaration replaces previous existing judicial bodies by a new Supreme Judicial Council and a Constitutional Court. It declares in Article 29.(2) that the "judicial authority" is independent from the Sovereignty Council, the Transitional Legislative Council and "the executive branch", with sufficient financial and administrative resources to be independent. In Article 30.(1) it defines the Constitutional Court to be independent and separate from the judicial authority.
It was initially suggested by Khartoum Star and Sudan Daily that Nemat Abdullah Khair was to be sworn in as Chief Justice on 20 August or 21 August 2019. On 10 October 2019 her nomination was confirmed by decree. Article 29.(3) states that the head of the judiciary is also the president of the Supreme Court and is "responsible for administering the judicial authority before the Supreme Judicial Council."
In the 4 August Draft Constitutional Declaration, Chapter 14 defines "Rights and freedoms". Article 41.(2) states that all international human rights agreements, pacts, and charters ratified by the Republic of Sudan are considered to be "an integral part" of the Draft Constitutional Declaration.
The deal was described on 5 July as including the creation of a "transparent and independent investigation" into the events that followed the 2019 Sudanese coup d'état, including the Khartoum massacre. On 8 July, Associated Press described the investigation as "Sudanese". The 17 July written political agreement stated that the investigation committee "may seek any African support if needed."
The 4 August Draft Constitutional Declaration refers to the investigation in Article 7.(16) as an element of the "Mandate of the Transitional Period", defining the scope as "violations committed on 3 June 2019, and events and incidents where violations of the rights and dignity of civilian and military citizens were committed." The investigation committee is to be created within a month of the Prime Minister's nomination, under an "order" that "guarantees that it will be independent and possess full powers to investigate and determine the timeframe for its activities".
According to an anonymous military official present at pre-5 July negotiations and quoted by The Christian Science Monitor, US negotiators led by Donald E. Booth proposed that TMC members be guaranteed immunity from prosecution in the investigation. The military official stated, "The Americans demanded a deal as soon as possible. Their message was clear: power-sharing in return for guarantees that nobody from the council will be tried." On 13 July, the FFC opposed 3 June Khartoum massacre suspects being members of the investigating committee.
The 17 July written deal does not refer to immunity for TMC members. On 25 July, Mohamed El Hafiz of the FFC legal committee stated its requests for changes to a draft of the constitutional declaration. This included the removal of a draft article that would have given immunity from prosecution to TMC and Sovereign Council leaders. El Hafiz said that neither absolute nor procedural immunity would be accepted for any leader. On 31 July, TMC leader al-Burhan "confirmed that the members of the [junta] do not desire immunity". On 1 August, the FFC accepted that Sovereign Council members could have "procedural immunity", defined to mean that Sovereign Council members would have immunity that could be lifted by a two-thirds supermajority vote of the legislative council.
In the 4 August Draft Constitutional Declaration, Article 21 gives procedural immunity to members of the Sovereignty Council, the Cabinet, the Transitional Legislative Council, governors of provinces and heads of regions, with 21.(2) giving the Transitional Legislative Council the right to lift that immunity by a simple majority.
The 4 August Draft Constitutional Declaration lists "achieving a just and comprehensive peace, ending the war by addressing the roots of the Sudanese problem" as Article 7.(1), the first listed item in its "Mandate of the Transitional Period", and gives details in Chapter 15, Articles 67 and 58 of the document. Article 67.(b) says that a peace agreement should be completed within six months of the signing of the Draft Constitutional Declaration. Article 67.(c) requires women to participate in all levels of the peace procedure and for United Nations Security Council Resolution 1325 to be applied, and legal establishment of women's rights is covered in Article 67.(d). Other mechanisms for implementing the comprehensive peace process are listed in Articles 67.(e) (stopping hostilities, opening humanitarian assistance corridors, prisoner releases and exchanges), 67.(f) (amnesties for political leaders and members of armed opposition movements), and 67.(g) (accountability for crimes against humanity and war crimes and trials in national and international courts). Article 68 lists 13 "essential issues for peace negotiations".
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Transition period protests
Protests continued during the creation of the transitionary period institutions, on issues that included the nomination of a new Chief Justice of Sudan and Attorney-General, killings of civilians by the Rapid Support Forces (RSF), the toxic effects of cyanide and mercury from gold mining in Northern state and South Kordofan, protests against a state governor in el-Gadarif and against show trials of Sudanese Professionals Association (SPA) coordinators, and for officials of the previous government to be dismissed in Red Sea and White Nile.
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