By Dr Adem K Abebe*
ADDIS ABEBA – On August 4, Sudan’s ruling generals and protest leaders initialed a constitutional declaration that paves the way for a transition to civilian rule. The ruling Transitional Military Council (TMC), which seized power following the toppling of longtime President Omar al-Bashir in April, and the Forces for Freedom and Change (FFC) coalition are expected to formally sign the declaration in front of foreign dignitaries on August 17 in Khartoum.
The transitional period, which will begin on that day and which is expected to last 39 months, will see the dissolution of the TMC, the establishment of a 11-member sovereign council in its place (which will have five military members selected by the TMC and five civilian members selected by the FFC, as well as an 11th civilian member chosen by consensus between the two parties) and the subsequent appointment of a prime minister and a cabinet. The constitutional declaration also stipulates the formation of an independent transitional legislative council.
Under agreed timelines, the cabinet and sovereign council should be up and running by the beginning of September, and the legislative council should follow suit before the end of November.
The declaration, which incorporates significant institutional reforms that aim to fundamentally alter the military-civilian balance of power in the country, was hailed by most international observers as the Sudanese people’s long-awaited victory over its military rulers – an achievement that could potentially kickstart Sudan’s return to normalcy following months of protests and violence.
Amid these events, the question arises of whether the African Union (AU), which suspended Sudan’s membership in early June, days after the military launched a brutal crackdown on protests, should reinstate it.
By lifting Sudan’s suspension and welcoming the country back into the African political scene, the regional body could inject confidence to the transitional government and speed up the normalization process in the country. But is it time for the AU to lift the suspension? Are we really witnessing the beginning of a civilian-controlled transition in Sudan?
A truly civilian transition?
Sudan’s long-awaited and hard-won constitutional declaration includes several pleasant surprises for the supporters of the country’s pro-democracy movement, with the emergence of a powerful cabinet being the most significant one. According to the declaration, an FFC-selected prime minister will name a cabinet of 20 ministers from a list of nominees selected once again by the FFC, excluding the interior and defense ministers. The latter two will be appointed by the military members on the sovereign council. Perhaps most importantly, the cabinet will be accountable not to the sovereign council, but to the civilian legislative council.
Overall, the logic of division of powers will follow a parliamentary system of government such that the sovereign council will function as a largely ceremonial head of state, while the civilian cabinet will enjoy plenary executive functions.
This is a surprising outcome considering that the negotiation process had excessively focused on the composition and powers of the sovereign council. Under the declaration, the sovereign council’s principal function is limited to formally confirming a slew of appointments. It does not even hold the power to block these appointments, as the constitutional declaration clearly states that they will take effect within 15 days anyway.
Even its power to declare an emergency or war is subject to the ratification of the transitional legislative council, which would have 67 percent of its members appointed by the FFC, with the remaining 33 percent selected by groups unlikely to be sympathetic to the military.
Moreover, the power of the sovereign council to sign international agreements is subject to the ratification of the legislative council. This could have serious implications when it comes to the deployment of Sudanese military forces abroad, or the presence of foreign forces in Sudan, as such deployments would normally require bilateral agreements between the involved states.
Also surprisingly, while the declaration foresees the immunity from criminal processes of members of the sovereign council (as well as cabinet, the transitional legislative council and governors of provinces), it can be lifted by a simple majority in the legislative council. This provision empowers civilians vis-a-vis the military.
The only notable power the sovereign council has under this new arrangement is the authority to “sponsor” the peace process with armed groups. Nevertheless, any such process should also involve the cabinet, as it is mandated to work towards stopping wars and conflict and building peace.
Beyond civilian-military relations, the constitutional declaration also appears to make fundamental changes to the state’s relationship with religion. Unlike the country’s former constitutional framework, the recent declaration does not make any references to Islam.
This is not surprising given the limited participation of Islamic groups, and the former ruling party, in the negotiation process. But it needs to be noted that there is also no specific reference to secularism in the declaration. The exact implications of the absence of Islamic references are, therefore, not clear.
The declaration also takes a progressive stance on women’s rights. Even though there has been criticism that women, who have been the face of the protests, have been pushed aside in the negotiation process, the declaration contains extensive guarantees for the prohibition of discrimination against women.
It requires the repeal of all discriminatory laws, and enjoins affirmative action to promote women’s rights and participation. The declaration foresees the establishment of a women and gender equality commission. It also requires that at least 40 percent of members of the transitional legislative council to be women.
However, the declaration does not include similar guarantees for female representation in the cabinet, the sovereign council, or many other critical institutions such as the constitutional court. The absence of such guarantees should not be an excuse to exclude women from these organs.
Restoration of constitutional order
As the constitutional declaration clearly favours civilian rule over the military, it can be argued that the AU should consider lifting Sudan’s suspension and giving the country’s upcoming transitional government its valuable stamp of approval.
However, under the Lome Declaration and the African Charter on Democracy, Elections and Governance, the union’s Peace and Security Council can only lift a country’s suspension when “constitutional order has been restored” there. The key question, therefore, is whether the implementation of the constitutional declaration would constitute the restoration of constitutional order in Sudan.
While the two aforementioned instruments provide little guidance on what constitutes restoration of constitutional order, the AU has often pushed for free and fair elections to be held before the lifting of a country’s suspension.
For example, the Central African Republic was reinstated in April 2016, more than three years after its suspension, following a national vote. The suspension of Egypt was also (albeit controversially) lifted after presidential elections were held in 2014.
And in the past, the AU has on occasion rejected transitional arrangements as insufficient to constitute a restoration of constitutional order warranting the lifting of the suspension. For example, ECOWAS lifted the suspension of Guinea Bissau after it brokered a transitional unity government in 2012. However, the AU maintained its suspension for another two years, until elections were held.
According to the constitutional declaration, the transitional period in Sudan will last three years. In real life, the process is likely to take a lot longer, as delays are common in transitions of this scale. As a result, if the AU insists on maintaining Sudan’s suspension until elections are held as it did with other countries, Sudan will remain outside of an important regional body for a very long time.
This delay could have a detrimental effect on Sudan’s pro-democracy movement. The extended transition period was demanded by the FFC and other civilian groups. The TMC preferred and even threatened to hold early elections.
By refusing to lift the suspension until elections are held, the AU would be punishing the civilian transition government and not the military that is responsible for the bloodshed. Moreover, if the union does not reinstate Sudan’s membership during the transitional period, for no reason other than lack of elections, it would be undermining the legitimacy of the transitional authority that appears, at least for now, to be representing the will of the Sudanese people.
There is a chance that the AU does not follow past practices and chooses to reinstate Sudan before it holds elections. In June, the regional body said the country will not be allowed to participate in AU activities “until the effective establishment of a civilian-led transitional authority”, which it described as the only way to “exit from the current crisis”.
The AU could decide to identify the implementation of the constitutional declaration and establishment of its principal institutions, such as the legislative council and the constitutional court, as these necessary prerequisites. Of course, another crucial precondition would be the swift establishment of an independent committee to investigate the June 3 killings that caused Sudan’s immediate suspension.
Reinstatement upon the establishment of a transitional government is not without precedent. In October 2012, the AU reinstated Mali, which was suspended in March 2012 following a coup d’etat, after it formed a transitional national government of unity and adopted a roadmap to hold elections.
Given that the Sudanese transitional government appears geared up to be more civilian than military, the AU would be justified in considering the lifting of the suspension. Reinstatement would further legitimise and embolden the transitional government, help Sudan heal its wounds and set the tone for responses from other international actors.
However, this important decision should also not be rushed. The AU must be convinced that all clauses of the constitutional declaration will be implemented in due time before reinstating Sudan’s membership.
*Dr Adem K Abebe is an advisor and commentator on the African Union, and governance and democracy in Africa. The Article first appeared on Al Jazeera online.
Editor’s note: The article reflects the author’s opinion only, and not necessarily the views of the editorial opinion of Ethiopian Monitor Online.