Legal expert: Constitutional amendments ‘give Sudan military absolute control’

In reaction to the amendments to the 2019 Constitutional Charter last week, approved by the de facto government in Port Sudan, Red Sea state, Sudanese legal expert Moez Hadra said that the move ‘will make the new government a dictatorial regime par excellence’.

On Wednesday, February 19, the Sovereignty Council and the Council of Ministers -the Interim Legislative Council- in a meeting headed by Lt Gen Abdelfattah El Burhan, approved far-fetching amendments to the Constitutional Charter for the 2019 Transitional Period, signed by the Transitional Military Council and the Forces for Freedom and Change (FCC) in August that year.

In September 2019, a civilian-led government was formed, headed by PM Abdalla Hamdok, to lead a three-year transition to democracy. This process however was stalled by the coup d’état of October 2021.

The now amended* charter, also known as the Constitutional Document, became effective on Sunday, February 23, after publication in the Official Gazette.

The approval to the amendments to the charter come less than two weeks after Lt Gen Abdelfattah El Burhan, Sovereignty Council president and commander-in-chief of the Sudanese Armed Forces (SAF) announced he was preparing to form a new government.

Any mentions of the FFC pro-democracy alliance and the paramilitary Rapid Support Forces (RSF, planning to form their own government) have been removed.

The investigation committee into the violent dispersal by government forces of protesters at the sit-in in front of the SAF General Command in Khartoum on June 3, 2019 (known as the June 3 Massacre) has been abolished.

The amendments further stipulate that Sudan’s foreign policy will be formulated and implemented under the supervision of the Sovereignty Council. Holders of foreign passports are prohibited from holding any position in the upcoming government.

‘Dictatorial regime par excellence’

In an interview with Radio Dabanga, lawyer and legal expert Moez Hadra said that “the Constitutional Document stopped existing since [the coup of] October 25, 2022, when El Burhan overthrew its legitimacy”.

He added, “Now, all articles related to the FFC, which was a key party in the transitional government, have been deleted, making the document null and void, as no party has the right to amend it unilaterally”.

The jurist noted that the amendments “fully sanctify dictatorial rule, as they grant military leaders legal protection from any accountability for crimes committed from the dispersal of the General Command sit-in in 2019 to the current war.

“They also grant the military an absolute majority, granting them all legislative, executive and judicial powers – which will make the new government a dictatorial regime par excellence, a situation similar to pharaonism.”

Hadra considers the cancellation of the paragraph related to the formation of an investigation committee into the June 3 Massacre “a dangerous move, as it establishes full impunity. This increases the conviction that the military dominate all joints of power.”

As for the current war, “the numerous war crimes and crimes against humanity should also be thoroughly investigated, but the judiciary in Sudan is no longer qualified and does not have the will to do so”.

The legal expert called on the International Criminal Court (ICC) in The Hague to intervene, “because all the facts indicate that the courts in Sudan, after these amendments, will not be able to exercise their professional role”.

He suggested that the ICC “should expand its scope to include all of Sudan instead of Darfur only, stressing that the amendments dropped a constitutional right that was intended to prevent impunity, and that no party has the right to cancel it.

Three months after the SAF-RSF war broke out, on April 15, 2023, the ICC launched an investigation into attacks on civilians in Darfur.

Regarding the transitional period stipulated by the amendments, Hadra pointed out that they grant the military a new term extending to 39 months, even though they have been ruling since 2019.

“It is clear that the amendments to the document are meant to establish permanent military rule, as they abolished all articles that prevent members from running after the transitional period, which means they intend to continue to rule after the transitional period.”

Return of the old regime

Regarding the legislative authority, Hadra explained that the amendments also “widely open the door for the participation of elements of the Al Bashir regime, as they stipulate that the upcoming parliament consists of members of the rebel movements that signed the Juba Peace Agreement and other groups that are not clearly defined, while excluding all the forces of the 2018 December Revolution [that ousted the three-decades long regime of Omar Al Bashir].

“This Legislative Council will be a formality with no real value, especially after granting supervision powers to the sovereignty and ministerial councils, as the military completely controls both councils.”

Hadra also criticised a clause in the amendments that gives the president of the Sovereignty Council the right to issue legislation without specifying a time period for its entry into force before it is presented to the legislative body, calling it “a consecration of tyranny”.

He further denounced the imposition of the Arabic language while ignoring the many local languages ​​and cultures, “which is the way of thinking of the kezan [Islamists**].

“The constitutional amendments approved last week are void, illegitimate, and entirely unconstitutional,” the legal expert concluded.

---

* The Constitutional Charter was amended on October 18, 2020, to incorporate the Juba Peace Agreement between the new civilian-led government and several rebel movements, signed two weeks before. In the second half of 2022, opposition groups proposed alternatives to the Constitutional Charter, to form a united front against the military junta that retook power in the 2021 coup. The Sudan Bar Association (SBA) suggested curbing military powers much more than stipulated in the 2019 charter. The text was widely discussed but has never been approved as war erupted between Sudan’s two armies in April 2023.

** Kezan, or kizan, is a pejorative nickname used by many Sudanese to refer to Islamist loyalists to the regime of Omar Al Bashir (1989-2019) and who enjoyed far-fetching privileges during his rule. The word is the plural of koz which means ‘wooden or iron mug’. The nickname is based on a description the Muslim Brotherhood called themselves, when the founder of the group, the Egyptian Hasan El Banna, said “Religion is a sea, and we are the mugs that draw from it”.