16/10/2022
The Proposed Constitution Draft: FFC and Partners New Venture to liquidate the Dec.2019 Revolution. (1)
Report by Alula Berhe Kidani
The, Sudanese Lawyers Steering Committee has tabled a draft, transitional constitutional document for debate few weeks ago. It was clear that the FFC (Freedom and Change) alliance was the engineer of this move which was welcomed by the regional and international actors.
But regardless of the origin every party or group has the right to table its views and visions and same time others has the right to accept, reject, amend or add to them. This is freedom of expression the core of democracy which we should always keep in mind.
This said let us examine the document and same time commends the lawyers committee for tabling it and steering a debate on an essential and vital issue.
First Remarks
The prominent legal expert Dr. Ahmed Osman Omer commenting on the document wrote:
Some are trying to delink the, Proposed Transitional Constitutional Document, from its political context and claim that it originated from a neutral professional body and contain the principles and rules that serve and attain the objectives of the Dec. Revolution.
But this is not true and contrary to the reality.
This project comes in the context of a political settlement which has its supporters and regional and international bakers and same time translate a declared FFC political position and coincide with the activities of the regional /international committee and find acceptance from the Janjaweed leader according to the social media.
The following are remarks on this context:
It is common knowledge that the Preamble of a constitution shed light on the basic principles of the constitution and state policy-making trends. It plays a major role in the explanations of the constitution artless and reveals the nature and positions of the political forces that formulated it.
If we look at the Preamble of this project find it stipulated that it had benefited from the experience of the transitional period that followed the downfall of the 30 June, 1989 regime.
This reveal the concept of those how those who formulated the document on the transitional period that not defined in the project neither what is meant by the downfall of the 30 June, 1989 regime?
The acceptance of what happened as a transitional period main that the control of the Security Committee with a civilian covers (FFC) is the downfall of al-Bashir regime and f
In reality the Security Committeeauthority was an extension of the 30n June, 1989 regime which focused on the encirclement and liquidation of the Dec. revolution.
So, referring to the previous period as a transitional period, main defeating the transitional concept from the start in the Preamble stage of the constitution project and a victory for the FFC which was the main partner in this period and contributed greatly in the encirclement that aimed to liquidate the revolution.
This nullifies any claim of professionalism and neutrality from the project and affirms it is the product of a certain political force.
It was written in the, Preamble that it had taken into serious consideration the Resistance Committees charters based on a very wide consultations from all over country as well as all the initiatives tabled by the different revolutionary forces. But didn’t define these different revolutionary forces but according to the FFC leader's media statements may even include their partners in the blood partnership, the military and intelligence institutions.
Also, the reference to revolutionary i legitimacy and democratic legitimacy aimed to disregard defining the present political situation from a revolutionary point of view which contradict the political position of compromises of the FFC.
The, Preamble mentioned that the aim is to erect the foundations of a civilian democratic government that establish the state of law and rights but ignored that the transition must contain the stage of dismantling the previous regime institutions by revisionary legitimacy to build the revolutionary legitimacy of the civilian state.
It also didn’t mention that the new democratic civilian state cannot be built before the liquidation of the 30 June 1989 institution and in which comes on the top the military and intelligence institutions including the military and security economic and Commercial Corporation and companies.
The naïve reference to the dismantling the 30 June 1989 institutions is not enough and a reputation of the previous period experience. The deformed Constitutional Document that was sold to us by the same forces also contained clauses on the dismantling of the 30 June 1989 regime institutions. But the regime institutions remained in place guarded by the present military and security institutions.
The non-clarity in this point in the Preamble means the possibility of a return to square one again.
The Preamble affirmed the implementation of the articles of the Juba Peace Agreement and then added that it will be reviewed with the armed group's signatures of the agreement. What is the benfiet of a review after implementation?
And why recognize the legitimacy of the Juba Peace Agreement in the first place and whose results has clarified that it was just a division of the spoils of power and ended by the support of the armed groups of the agreement support to the Security Committee coup of Oct.2021 against the Sudanese people.
The recognition of this agreement is a crime and continuation of the FFC performance and who was a front for the Security Committee when the agreement was signed in the name of their government by Hamittia who was not a member of the government!Also, continuation in the road of empowering the armed groups, division of power with them and pardon them from accountability of the crimes of participation in the last coup and in its institutions.
The Preamble mentioned that launching of a comprehensive transitional justice operation that will attain accountability and put an end to the culture of immunity form punishment.
This clause may look good at first but does not identify the violators, in the 30 June 1989 coup nor the Security Committee of the present coup. The absence of such identification makes the clause useless and leads to the formation of committees controlled by political compromises like the investigation committee on the Army Command masque.
The preamble stress on that this constitution originate from the Sudanese people and will be the people commitment during the transitional period but does not define who these people are. This mean can include the Security Committee, the Janjaweed, the armed groups allied with the Security Committee and the establishment of new blood partnership.
Also, does not condition the implementation of the constitution directly after the downfall of the present coup.
So, there is the possibility to find the constitution in the official Gazette signed by the coup leader same as with the deformed Constitutional Document or in other words the new transitional period drive its legitimacy from the present Coup as the claimed previous transitional period derived its legitimacy from the Palace Coup.
The proposed constitution document cancelled the resolutions issued in or after the 25 October 2021 Coup but not those issued after the Palace Coup of April 2019 which means effective specially after the cancellation of the 2019 Constitution Document which cancelled those contradicting with its clauses. This legitimize the whole period of the first coup.
The project considered that Juba Peace Agreement as part of the proposed constitution correcting the wrong stand of the cancelled Constitutional Document but didn’t address the issue of the cases in which the articles in the agreement contradict with the proposed constitution.
In all circumstance legitimizing this agreement that is popularly rejected , didn’t bring peace and was spoils partnership between the coup general and some armed groups should be completely cancelled and indulge is a serious negotiations with the real bearer of arms forces not the armed groups that supporters of the coup and anti to the revolution. The achievement of a genuine peace that addresses the root causes of the conflicts and provide suitable solutions.
The project granted the state (6) months to review all the laws that contradict with the rights and freedoms granted in the proposed document and either cancel or amend them. It is clear that this is a very long period specially that these laws are very well know and that juts a months is more than enough and should add that if these laws are not cancelled or amended during this month will be considered as unconstitutional.
Also, the authority mandated to perform these tasks should be clearly mentioned instead of the vague phrase of the state which does specify that institution and make it accountable for this responsibility.
The project kept the corporal punishment for those aged 70 years in the crimes of Islamic Hadad , crimes against humanity and war crimes and at large for those between 18 and 70 years. This clearly contradicts with the global trends to end this punishment and reinforcement of the religious laws enacted by the 30 June 1989 regime.
The project guaranteed the freedom of creed and religion but according to the law that organize it in a democratic society .It is not known why this restriction and what is meant by a democratic society in this context.In addition the article didn’t grant the right to leave a religion or creed as fundamental part of this freedom. It should have been part of the article to close the gates clearly in the face of the legalization of the crime of autopsy advocated for by some Islamic political forces. This aspect in the article is important also to prevent the reputation of article (126) in the Criminal Law.
The article in the freedom and independence of the media and freedom of expression, the right to information to safeguards other rights and freedoms were restricted by according to the law that organizes it in a democratic society. This restriction is rejected in principle because it opens avenues for many concepts. It would have been far better to leave these rights without restrictions so that the legislators cannot restrict them according to their visions on these restrictions.
The restrictions on the media not to publish messages of discrimination or disrespect on the base of gender or religion or ethnicity ; mean opening the avenue for the criminalization of the media with the charge of disrespect which has no concrete definition. It allows including any critical position under its umbrella if not acceptable to certain parties and solidifies the continuation of the present situation and, forbid any new or critical contributions.
It is more correct not to stipulate this vague concept and search for a more concrete concept that include insult without criminal intent , disparity between criticism and criticism with criminal intention. Without this the article will be a mandate for the legislator to violate the freedom of expression.
The act that law organize the registration of the societies, organizations, trade unions, and professional unions according to needs of a democratic society seriously impact the right of assembly and organization because the article on the conditions on the right of registration is very vague because it assume a defined democratic society on which is applied this condition. The correct procedure is a clause that reveals the foundation of the organization and does not affect the legitimacy or right to practice its activities.
The embargo on the political activities of the National Congress Party and organizations is not serious and valueless and the correct approach was an embargo on the practice of politics by the armed forces personal and security organs of politics while in the active service and including the Janjweed as part of the present crisis and political dilemma and then attach the NCP to the embargo.
Article (34) didn’t define the transitional period and just stipulated it functions its functions and institutions without defining the tasks and role of every institutions. This vagueness is dangerous and council the revolutionary nature of the transitional period and its revolutionary legitimacy.
Also, the article left the dis-empowerment of the 30 June, 1989 regime to the law to organize it. This is a major defect because it was supposed that the article define the mechanism (committee, etc) and protect it constitutionally in the tracing of embezzled funds and confiscate them,while granting the right of appeal against its decisions and exempt it from the general rules of administrative decisions and limit the right of appeal to the avenues stipulated in its act, forbade the administrative organs from dissolving it, and be under the legislative institution supervision only, in addition to the juridical review of its decisions.
It must also be articulated that the burden of proving the legitimacy of wealth is on the accused and not the committee or the state. In addition the Dis-empowerment Committee must examine all institutions including the judiciary institutions of the previous NCP regime and this clearly written in the article and explicitly. So, that there will be no claims of the independence of a judiciary that has not been independent since 1989 and up to nowadays. All this should be constitutional and not left to the law and protected constitutionally.
Off-course article (63) has covered all that is required even if it addressed some of these issues.
The project didn’t identify who will reform the armed forces, the police and, intelligence and security institutions but didn’t specify but the dissolution of the 30 June 1989 regime intelligence organs and didn’t give the executive branch which these institutions should be under their control the mandate for a revisionary reforms and as well enforced the return of the dismissed officers to lead these reforms, this making reform impossible.
Also, the project didn’t mention economic development depending on self-resources but pointed to an economic emergency plan. In addition didn’t reject economic hegemony but adapted a vague clause on social justice without any effort to explain how this can be done actually under the complete dominance of the regional and international institutions and powerful regional states.
The project articulated the formation of a commission for social justice and a law to formulate a national plan to implement social justice.
Same time referred the decision to the Council of Ministers to support or reform the national committee on the 30 June 2019 violations. This is a situation that makes it possible the continuation of the incompetent committee without change in its functions. All this will squander justice and escape from punishment. Neither the formation of the commission nor the reformation of the committee will bring the powerful to justice.
There must be efforts to oblige the government to seek international justice investigations and international criminal judiciary because it is impossible to attain justice in the present circumstances at the national level, with powerful military and security organs and in-independent judiciary affiliated and corrupted for 30 years be the ousted regime. This applies as well to any other committees that may be formed in the regard.
The project again in Article (5-034) stated the commitment to implement the Juba Peace Agreement a commitment that cannot be acceptable by the addition of that a committee will formed to evaluate and reform the agreement because it affirms the principle of …….and the concepts upon which the agreement was based, and prevent the attainment of genuine peace that address the real problems of the suffering people of Darfur and other conflicts areas instead of empowering instead of empowering the armed groups anti-to the Sudanese people revolution.
This commitment is enough to reveal the nature of the forces behind this project and also legitimize the continuation of the armed movements' alliance with the Al-Bashir Security Committee in the coming transition period.
The formation of the legislative assembly in Article (39) clearly reflects the compromise with the 30 June 1989 at the legislative level. It stipulate the wide representation of the components of the Sudanese people including political, civil, professional, resistance committees, native administration, and signatures of the Political Declaration and exclude only the NCP (National Congress Party).
This composing all the forces supportive of the present coup even the political parties who were partners in the 30 June 1989 regime until its downfall as long as are signatures of the Political Declaration which was nit defined in the project.
This clause clearly reveals the new blood partnership instead of distributing the seats of the assembly to the revolutionary forces added all the counter-revolution forces. Also, the project didn’t specify the legislative authority in charge if the legislative assembly was not formed in the specified one month. This allowing the passage of the compromise s and partnerships with the absence of the legislative assembly to observe and check as happened before.
The mention of the independence of the judiciary authority without affirming the non-independence of the present judiciary authority and the necessity to restructure and reform it within the dis-empowerment measures mains giving this authority a weapon to defend its deformed independence and making it impossible to establish a genuine independent judiciary authority.
The project continues the norm of the independent constitutional court separate from the judiciary authority which was introduced by the 30 June 1989 regime without explaining what was the defect in presence of a constitutional circle within the high court that examine the constitutionality of laws and acts as was the case before 30 June 1989 coup.
In addition should note that the presence of the constitutional circle within the judiciary authority guarantees its independence and also avoid the experience of the difficulties that faced the reformation of this court after the downfall of the 30 June 1989 regime. The question is why the project insisted on an independent constitutional court after all this?
The stipulation that the armed forces are under the authority of the high commander necessities the clarification that the high commander is the prime minister so as to insure and keep the armed forces under the jurisdiction of the government and civil executive authority.The absence of this a condition point to a compromise with the military to keep the armed forces outside of the civilian government control.
The general clause that the armed forces are under the authority of the prime minister is not enough but must be mentioned explicitly under the control of the prime minister.
The recognition of the RSF (Rapid Support Forces) and amalgamating it in the armed forces is against the popular demand for its dissolution as the 30 June 1989 militia and amalgamating it in the armed forces contradict with the international norms in dealicle. ing with militias of this kind and contradict with the national character of the armed forces according to the project itself, because it is a tribal militia that will destabilize the required balance in the armed forces according to the article.
The existence of this deformed article is another proof that the whole project in essence is a compromise, and explains what was reported in the Social Media of the Gangwad leader support of the project.
The article (73) on the formation of the Security and Defense Council referred the definition of its composition and mandate to the law while article (69) mentioned the representation of the armed forces in this council that will be headed by the prime minister point to a norm that has no precedent in states constitutions that are considered democratic in which there is no such precedent and where the security and defense councils is either headed by the president of the state in presidential systems or the prime minister in parliamentarian systems and considered a government institution with clear mandate.
And since the mandate and formation of this council is unknown and will be formulated by the deformed proposed legislative council and may be even before that by the present coup leader's authority under the banners of the Armed Forces Higher Council that was proposed by Gen. Baurhan. It is presumed that mandate and functions of this council will over that of the prime minister who will only be a front for the actual power behind the thrown. This is clear from that the project has not defined but only mentioned the representation of the armed forces as one of its components.
The correct approach is to cancel this article completely and leave the formation of such a council to the prime minister as consultative executive institution under his mandate and assist him in the issues in which he consult them and execute his instructions.
The presence of this article and read with the coup project of making the project document as paving the way for the coming compromises negotiations and establish a new blood partnership which all its components are in the this document commended by the international community and represent the highest degree of dissipation that will deceive nobody.
It remains to note the continuous reputation in the project of "Democratic Society" conditions in the allusion that this condition or bound is enough to protect rights and freedoms, but this is a baseless allusion. The correct is a sovereign state with 4 guarantees; independent judiciary, rights of legislation, constitutional laws and, ex*****on of the law.
