As General Abdel-Fattah al-Burhan, chief of Sudan’s Armed Forces (SAF) and head of the Sovereign Council (SC), the collective head of state established for the country’s transition, seized power in a military coup on Oct. 25, he appeared in uniform in a “Press Conference of the Military Forces” and declared a state of emergency. He also purported to suspend by decree certain articles of the 2019 Constitutional Document which has, subject to a later “Juba Agreement,” acted as Sudan’s interim constitution during the transition period.
This briefing note examines the constitutional aspects of the Oct. 25 emergency declaration, focusing on those parts of the 2019 Constitutional Document that have purportedly been suspended, to understand the possible intentions and implications of al-Burhan’s actions (based on video of his declaration, in the absence of a written document). The analysis shows that, by suspending certain articles of the Constitutional Document, al-Burhan sought to exclude existing civilian partners from the governance of Sudan, and return the military’s power to what it was immediately prior to the agreement reached between the military and civil society on July 17, 2019. Moreover, the fact that al-Burhan sought to suspend only those articles that secure the existing civilian positions, while retaining much of the form of the transitional arrangement, is consistent with his effort to portray this unilateral power-grab by the military as merely a “course correction,” rather than as a fundamental betrayal of the foundational compromise behind the transitional period.
Suspensions to the Constitutional Document
- Background: Civil-Military Power Sharing
Following the removal of former authoritarian President Omar al-Bashir in an April 2019 military coup, the SAF, headed by al-Burhan, initially took control, acting through a Transitional Military Council (TMC). After mass demonstrations and violent clashes, and supported by the international community, a “Political Agreement” on governing structures during the transitional period was reached on July 17, 2019, between the TMC and the Forces for Freedom and Change (FFC), an alliance of civilian political parties and civil society actors. That political agreement provided the basis for the Constitutional Document, agreed in August 2019.
The system of government established by the Constitutional Document was typical of many military-backed transitional regimes, being based on two councils – a “Sovereign Council” which was supposed to provide strategic leadership to the transition and act as a collective head of state, and a Council of Ministers to perform executive functions. The Constitutional Document also provides for a Transitional Legislative Council (TLC), which would share legislative power with the Sovereign Council. However, the TLC has yet to be established.
As detailed below, these transitional governing institutions were based on a power-sharing arrangement, in which the military and the FFC would share power, each with a veto in each other’s actions.
The Constitutional Document is therefore both a roadmap for the transition process and an interim power-sharing agreement between the TMC and FFC. It was amended by the Juba Peace Agreement (JPA) of 2020, which brought other partners in the peace process (under the umbrella of the Sudanese Revolutionary Front, SRF, an alliance that had opposed al-Bashir) into the power-sharing arrangement.
The changes to the Constitutional Document purportedly made by al-Burhan’s Oct. 25, 2021, declaration are an abrupt and unilateral rejection by the military leadership of its political agreement with the FFC. In suspending Articles 11, 12, 15, 16, 24.3, 71, and 72, it attempts to return the political situation to that which prevailed from April 11 to Aug. 17, 2019, the period when the Transitional Military Council held supreme authority.
- Articles 11 and 12: The Sovereign Council
According to Article 11.1, the Sovereign Council originally consisted of 11 members, of whom five were civilians selected by the FFC, and five were military members selected by the TMC. The 11th member is a civilian, selected by agreement between the TMC and the FFC. This article was amended after signing the JPA, which expanded the Sovereign Council to 14 members, with three additional members representing the peace partners.
Under Article 12 of the Constitutional Document, the Sovereign Council had broad legislative and executive competencies, including the power to appoint the prime minister selected by the FFC, confirming the appointment of Cabinet ministers, the confirmation of the appointment of the heads of regions or the governors of provinces, and the confirmation of the appointment of members of the Transitional Legislative Council. Crucially, the Sovereign Council was a collective head of state and collectively exercised supreme command over the armed forces.
The Sovereign Council was supposed to make decisions by consensus, or in the absence of consensus by a two-thirds majority (Article 12.3). In other words, both the military and civilian members would have an effective veto over the actions of the other side. All powers vested in the Sovereign Council under the Constitutional Document belong to it as a collective body, not to any one particular member. However, the chair of the Sovereign Council was in practice the most important and powerful member, and the question of who should hold the position of chair was a crucial part of the power-sharing arrangement between the military and the FFC.
Military and civilian leaders signed the Aug. 17, 2019, Constitutional Declaration, when they agreed to a power-sharing arrangement whereby military leaders would chair the ruling Sovereign Council for the first 21 months of a 39-month transitional period. On May 17, 2021, civilian members in the Sovereignty Council were to take over for the remaining 18 months. That timeline was extended by the signing of the Juba Peace Agreement, when parties agreed that the transitional period, the 39 months, would start again from the date of signing on Oct. 3, 2020. That means the events of Oct. 25 this year must be understood in the context of a pending change of leadership in the Sovereign Council from its military to civilian members, which clearly was perceived as threatening to the institutional and personal interests of senior members of the military, who feared loss of power and economic resources, judicial accountability for alleged previous human rights abuses, or retribution.
By suspending Articles 11 and 12, the Oct. 25 declaration attempts to abolish the Sovereign Council, and by abolishing it to end the power-sharing arrangement between the military, the FFC, and the peace partners. Instead, al-Burhan as the head of SAF, would be able to replace or reconstitute these institutions, placing them under military, or his own, control.
Furthermore, Article 35.1 of the Constitutional Document provides that “The armed forces and Rapid Support Forces […] are subordinated to the General Commander of the Armed Forces and subject to the sovereign authority.” By abolishing the Sovereign Council, the collective supervision of the armed forces would be replaced by al-Burhan’s direct command.
- Articles 15 and 16: The Cabinet
The same commitment to power-sharing was evident in the composition of the Transitional Council of Ministers. According to Article 15 of the Constitutional Document, the prime minister was to be nominated by the FFC and appointed by the Sovereign Council. The other Cabinet ministers, not exceeding 20 in number, were to be appointed by the prime minister from a list proposed by the FFC, and confirmed by the Sovereign Council. However, the ministers of Defense and Interior were to be nominated by the military component of the Sovereign Council. This article was amended after the signing of the JPA. The amendment assigned 25 percent of the Cabinet seats to the Sudanese Revolutionary Front (SRF). In suspending Article 15, al-Burhan gains the ability to re-shape the Cabinet, removing the FFC back-members and appointing a technocratic Cabinet of his own choosing.
Article 16 of the Constitutional Document specifies the Cabinet’s competencies. These are similar to those of the Cabinets in many contemporary constitutions, including drafting laws and the budget; issuing regulations; overseeing the work of the civil service, ministries, and public institutions; and supervising enforcement of the law. In addition, the Cabinet had specific responsibility for managing the transition process, including forming the various commissions mandated by the Constitutional Document. Paragraph 1 of Article 16 states that the transitional government should carry out its tasks during the transitional period following the program of the FFC, as contained in the FFC Declaration.
Taken together, the suspension of Articles 15 and 16 removes all effective constitutional rules on the structure and operation of executive power, enabling al-Burhan to exclude the FFC members and to ignore the FFC’s program. He would then be able to take those powers under his own control, or place them in hands of his own choosing under this own direction.
- Article 24.3 – Transitional Legislative Council
Article 23.4 assigns 67 percent of the TLC’s seats to members selected by the FFC. The remaining 33 percent of the members of the TLC are to be nominated by other forces who did not sign the FFC Declaration, with the appointments made in consultation between the FFC and the military members of the Sovereign Council. (The FFC Declaration was a political agreement signed in January 2019 by its members — political parties, civil society organizations, and trade unions – with objectives and a workplan for the transitional period.) To date, the TLC has not yet been established, despite a deadline for its establishment 90 days after the signing of the Constitutional Document; legislative power has therefore been exercised, under Article 25.3, by the Sovereign Council and Cabinet acting jointly. In abolishing this provision of the Constitutional Document, al-Burhan has the ability to reshape the TLC according to different criteria of his own choosing. It was promised in the Oct. 25 declaration that a future TLC would include representatives from all parts of Sudanese society, but the precise means of achieving that is still to be determined.
- Articles 71 and 72 – The Political Agreement and the Role of the TMC
Article 71 of the Constitutional Document recognized that the Constitutional Document was derived from the July 17, 2019, Political Agreement between the TMC and the FFC. Article 72 dissolved the TMC from the date on which the members of the Sovereign Council took their oath of office. The suspension of Article 71, therefore, signals the dissolution of the partnership between the two parties of the Political Agreement and cuts the connection between that Political Agreement and the transitional constitutional framework – effectively removing the FFC as an equal partner in the transition process and returning power to the TMC. This move is confirmed by the suspension of Article 72, a move that is intended to cancel the dissolution of the TMC. In effect, this seeks to re-establish the TMC, although it is not clear what competencies the TMC would have or what role the TMC would have in the post-coup constitutional order.
Are These Constitutional Suspensions Lawful?
The 2019 Constitutional Document, as amended by the JPA, is the supreme law of Sudan. Article 3 of the Constitutional Document states that, “The Constitutional Document is the supreme law of the Republic of Sudan. Its provisions prevail over all laws. Provisions of any law that are inconsistent with the provisions of this Constitutional Document shall be repealed or amended to the extent required to remove such inconsistency.” Thus, in principle, any law, order, decree, or proclamation that is inconsistent with the constitution is void. However, the Constitutional Court, which under Article 31 “is competent to oversee the constitutionality of laws and measures, to protect rights and freedoms, and to adjudicate constitutional disputes,” has not yet been established. There is, therefore, no way of testing the constitutionality of measures.
The Constitutional Document can only be amended in accordance with the rules of amendment set out in the Constitutional Document itself. According to Article 78, amendment or repeal of the Constitutional Document requires a two-thirds majority vote of the TLC. As noted above, the TLC has not yet been established and, in its absence, legislative powers of the TLC are vested in the Sovereign Council and Cabinet acting jointly in accordance with Article 25.3. This extends to the authority to amend the Constitutional Document. The only other exception is provided by Article 41, which enables the Cabinet to suspend some parts of the Constitutional Document’s bill of rights during a state of emergency. There is, however, no legal provision for the unilateral amendment, repeal, or suspension of the Constitutional Document or any article thereof by the Chief of the Armed Forces or Chair of the Sovereign Council acting individually. Nor can the Cabinet in a state of emergency suspend parts of the Constitutional Document other than the bill of rights. It must, therefore, be concluded that the purported suspension of Articles 11, 12, 15, 16, 24.3, 71, and 72, announced in the Oct. 25 declaration, is legally of no effect.
Unsuspended Articles of the Constitutional Document
The Oct. 25 declaration did not attempt to suspend or revoke the Constitutional Document as a whole. Most of its provisions formally remain in effect. For instance, Article 10 remains in effect. While it does not go into details, this provides the basis for the continued existence of bodies designated as the Sovereign Council, the Cabinet and the Transitional Legislative Council. The suspension of selected articles, while leaving most others in place, creates a legal conundrum. Even if one accepts the de facto suspension of Articles 11, 12, 15, and 16, and the de facto dismissal of the Sovereign Council and the Cabinet, these bodies continue to have a constitutional existence and would have to be re-constituted in some way. The suspension of Article 72 purports to restore the TMC, but it is not yet clear whether the TMC will replace the Sovereign Council, or whether a new Sovereign Council will eventually be instituted.
In the same way, the provisions on the TLC have not been suspended, except those dealing with its composition. In a further statement on Oct. 26, al-Burhan indicated that a new TLC would be appointed, with representatives from the regions of Sudan. It remains to be seen whether this TLC will be established, whether it will have a genuinely representative character that will be sufficient to give it public legitimacy, and whether it will be allowed to perform the roles assigned to it under the Constitutional Document.
It is particularly notable that Article 8, which sets out the mandate for the transition period, has not been suspended. This is consistent with an interpretation of events that sees the coup not as an attempt to stop the transition process, but as an attempt to seize control of it, and to return control over the process to the military, as it was in the first stage of the revolution.
Article 80 of the Constitutional Document, added by the JPA, also remains in effect. This provides for the establishment of the “Council of the Partners of the Transitional Period,” a representative body of the parties of the Political Agreement (FFC and TMC), the prime minister, and the partners of the JPA. The responsibility of the partners council is to resolve disagreements in political views among the transitional partners. It is uncertain what role, if any this council will have in the future, but the decision not to suspend it may indicate a desire to maintain the peace partnership, and some mechanism of dialogue with the FFC, despite consolidating power in the military.
State of Emergency
The suspension of the constitutional articles was accompanied by a declaration of a state of emergency. According to Article 40 of the Constitutional Document, only the Sovereign Council has the capacity to declare a state of emergency, and it can do so only upon the request of the Cabinet: “Upon the occurrence of any emergent danger or natural or environmental disaster that threatens the unity of the country, or any part thereof, or its safety or economy, the Cabinet may ask the Sovereign Council to declare a state of emergency in the country or any part thereof, in accordance with the Constitutional Document and the law.” Article 40 also requires the declaration of a state of emergency to be presented to the TLC within 15 days from the date of its issuance, and if the TLC is not in session, an emergency session of the TLC must be convened. However, since the TLC is not established, that provision is of no effect – although by a strict reading of Article 25.3, a declaration of a state of emergency should be confirmed by a joint session of the Cabinet and the Sovereign Council within 15 days.
Although the Constitutional Document allows the military a role in power-sharing, the military is ultimately subordinate to the transitional institutions set out in that document. Article 35.1 provides that, “The armed forces and Rapid Support Forces are the national military institution that protects the unity and sovereignty of the nation. They are subordinated to the General Commander of the Armed Forces and subject to the sovereign authority.” The sovereign authority in this case is the Sovereign Council. The military collectively, the chief of the SAF, or the Chair of the Sovereign Council, have no lawful competency to unilaterally declare a state of emergency. Neither does the declaration of a state of emergency give anyone the authority, under the Constitutional Document, to dismiss or dissolve the Cabinet or the Sovereign Council.
The declaration of the state of emergency, the suspension of constitutional articles, and the dissolution of the Cabinet and the Sovereign Council, clearly pose risks to the political stability of Sudan, the future of its transition process, the country’s international relations (especially with Western donor nations), the prospects of economic recovery and development, and the peace process. As outlined above, these actions can only be interpreted as an attempt to break with the existing legal and constitutional order by military force. All these actions point in the same direction: the repudiation of the political agreement of 2019, the exclusion of the FFC from positions of political power, and the resumption of power in the hands of the military leaders as it was prior to the political agreement.
The reason why the military leadership has chosen this high-risk stratagem, at this time, are well-documented: the scheduled transfer of power to a civilian chair of the Sovereign Council triggered a fear that the military leaders would lose personal and institutional privileges, would have to surrender their control over economic resources, and would be exposed to legal repercussions for alleged war crimes and human rights abuses.
What is less clear, however, is the military leadership’s true intent or vision for the future. The declaration of Oct. 25 made a commitment to the holding of elections in mid-2023, and promised the continuation of the political and constitutional transition process. On this interpretation, the aim of the military intervention was not necessary to halt the transition processes, but to keep control of it, in order to protect the political and economic interests of the military leadership – including elements associated with the former al-Bashir regime. If so, they will have to move quickly to reassure the public and the international community of the sincerity and seriousness of that intention.
That is likely to prove difficult. Although the FFC have received some blame for the slow transitional progress and the economic crisis, they still enjoy broad legitimacy, as demonstrated in the Oct. 30 protests. Excluding the FFC from the transitional governance arrangements may provoke popular uprisings, which might in turn result in violent crackdowns, sending the country into a spiral of escalating conflict. There is a need for peaceful dialogue between the military leadership and the FFC. It is possible to imagine potential compromises – such as the restoration of the FFC’s role in the transitional governance institutions in return for some guarantees that the immediate concerns of the military leadership will be respected, both in terms of transitional justice (their and al-Bashir’s vulnerability to potential war crimes and human-rights-abuse prosecution) and the future constitution (their role in government). However, to ensure the stability of the political process and build a democratic system of government, it is essential to carry out reforms in the military institutions and to define its role in the political space.