I. General Principles
► Participants affirmed that the constitutional issue is a concern to all the people of Sudan in their various sectors and active forces as it affects their basic lives. The monopoly by parties to the comprehensive peace agreement and their allies in preparation and ratification of the interim constitution do not provide the necessary respect to this constitutional document. Moreover, this doesn’t further ensure the implementation of its rules. The participants agreed on the necessity of widening participation of all Sudanese political and social forces in drafting the interim constitutional framework. The constitutional review commission should be inclusive with reasonable and fair ratio of representation to be agreed upon in order to achieve the national consensus in accordance to democratic criteria.
►Participants affirmed their general support to the comprehensive peace agreement specially its outstanding achievement in stopping the war in the South. They consider stopping the war as a remarkable and outstanding step towards stopping all military confrontations in other parts of the country, which may in turn open the way to its peaceful resolution. The participants affirmed their total commitment to all rights and gains achieved by the South and the three areas (South Kordofan + Blue Nile + Abyei) in the comprehensive peace agreement. Participants recommend these rights and gains to be embodied in the constitutional framework of the interim period. However, the participants affirmed at the same time, that this commitment should not deny the other Sudanese political forces the right of formulating authority framework that determines the levels of governance in the North including laying the bases for sound system of rule in Sudan.
► Participants affirmed the necessity of all State policies to be based on compliance with ethnic, religious, cultural and linguistic diversities on one hand and political pluralism on the other. Moreover, the state policies should comply with guarantees of freedoms, basic rights, supremacy of the rule of law and separation of powers. These commitments should form the foundation for consolidation of democratic practice, reinforcement of national unity, upholding values of tolerance, peaceful coexistence and acceptance of each other.
► Participants emphasized the importance of reinforcing constitutionalism as a value not less than the constitution itself in guaranteeing citizen rights and participation. They affirmed the need to disseminate the culture of democracy, human rights, peace and voluntary unity. Violation of any of these values must be subject to condemnation legally, morally and politically.
► Participants emphasized the importance that the interim constitution should reflect the indivisible and interrelated approach to human rights regarding civil, political, economic, social, cultural, individual and group rights. Participants further emphasized the necessity of balanced and comprehensive development in all the regions of the country. The role of the State in planning with policies aimed at poverty alleviation combined with gender perspective based upon human rights was also affirmed.
► Participants recommended that the drafting of the constitution should not be limited or restricted whatsoever. Instead the aim of constitutional drafting should be to widen the choices whereby it can be guided by the result of the democratic dialogue between national groups based on equality and the background of the previous constitutional experience and the experience of other nations. Participants stressed that no provision on source of legislation should be stated in the constitution. It is to be noted that legislation is the right of the people dully exercised by its democratically elected representatives who are in the legislative authority. Focus, therefore should be on the issue of legislation not on its sources.
► Participants affirmed the importance of making unity an attractive choice for the people of Sudan. For this to be achieved the draft should refrain from provisions and legislation that can discriminate between citizens on basis of religion, culture and gender. Any existing discriminating legislation should be suspended until the establishment of democratically elected legislative body and drafting permanent constitution for the country.
► Participants affirmed the importance of creating conducive environment for responsible political practice that addresses the grievances and bitterness of past systematic human rights violations in the country. The draft constitution therefore should provide for methods of truth and national reconciliation guided by Sudanese cultural values and experiences of other nations.
II. Basic Rights and Fundamental Freedoms
► Participants observed that the draft interim constitution was not comprehensive in listing all freedoms and rights that should be stated in the constitution. They further observed that some of the stated freedoms were vague and imperfectly drafted that could lead to conflicting interpretations. Such conflicting interpretations could threaten its validity in practice or undermined through legislative excesses and violations.
► Participants affirmed and agreed on an integrated document for Bill of Rights, as it should clearly be stated in the desired constitutional framework The Bill protects individual and group rights anchored on the independence of the judiciary. It also provides robust enjoyment of all individual and groups with it; it provides them with full and enough guarantees for enjoyment of these rights against the executive. The document contain 37 Articles including supremacy of the rule of law – the right to a fair trial – Protection of human dignity – Prohibition of torture – right to life – Prohibition of detention and arrest – Prohibition of slavery and servitude – right to equality –freedom of thought, expression, media and information – freedom of association and social organization –freedom of establishment of political parties – freedom of movement – freedom of faith and worship – right to litigation – right to education – right to health care – right to employment, equal wages and strike- sanctity of privacy – political rights – rights of cultural groups – rights of ownership – right to nationality – rights of Persons with special needs – children rights – rights of mentally affected persons – rights of the family – rights of motherhood – Women rights- right to food and emancipation from hunger – rights of accused and convicted persons–right for political asylum etc.
► Participants recommended that in addition to the Bill of Rights, the draft constitution should commit the government of Sudan to all international human rights conventions and treaties. These conventions should be enacted into domestic legislation and the existing laws must be reviewed to conform accordingly.
► Participants recommended that to enhance the protection of basic rights and fundamental freedoms contained in the Bill of Rights an independent Human Rights Commission should be formed in accordance with international standards.
► Participants recommended that the draft interim constitution should provide for prohibition of any legislation or law that restrict rights and freedoms. Any legislation and laws pertaining to rights and freedoms should not restrict their enjoyment but only regulate its application in accordance with international standards.
► Participants recommended that the draft constitution should prohibit any derogation regarding rights and freedoms except in accordance with established international standards and by approval of ¾ (three quarter) majority of both National legislative and Council of States convening separately.
► Participants recommended that no derogations should be allowed in regard to certain rights and freedoms namely right to life, right to human dignity, protection from torture, right for fair trial, protection from slavery and exploitation, right to equality, right of Association including the right to establish political parties and social organizations, freedom of faith and worship, right to litigation. Any regulations depriving citizens of freedoms and rights stipulated in the Bill of Rights should be null and void.
► The participants recommended that in case of any unavoidable restrictions to rights and freedoms as during the state of emergency that threatens the country, it must be clearly stated that the restrictions are limited and temporary. The law declaring the state of emergency must expressly stipulate the rights being restricted and the nature of the restrictions. Moreover, the state of emergency itself should be subject to independent judicial supervision and control.
III. Independence of the Judiciary and the Rule of Law
► Participants noted that the various authoritarian regimes in Sudan including the current Salvation regime have systematically eroded the principles of judicial independency in the country. Those regimes compromised the objectivity, neutrality, impartiality and competence of the judiciary. To undermine the independence of the judiciary the current Sudanese authoritarian regime purged competent judges and replaced them with incompetent political loyalists. The participants therefore recommended overhauling this sector by extensive legal reform in the judiciary and related institutions to rebuild professionalism and independence.
► Participants also recommended that the constitution should guarantee independence of the Judiciary and the constitutional court administratively and financially. This independence should include administration of justice, protection of judges from state intervention, respect to its judgments and execution of its rulings.
Participants recommended that the appointment of the President, members of the Constitutional Court, Chief Justice and members of the Supreme Court must be after public hearing at the Council of States and approval by ¾ of its members.
Participants recommended that persons appointed to the judiciary must be competent, honest and trustworthy. The persons should not be politically active and should adhere to the application of the rule of law without discrimination or prejudice. Moreover, the persons should be of strong moral character to safeguard them from undue influences.
Participants recommended that tenure of office for members of the Judiciary and provision of appropriate working conditions must be constitutionally guaranteed. The constitution must also prohibit dismissal or suspension of judges except in accordance to law in a transparent and fair process.
Participants recommended that the Constitutional Court should have the jurisdiction of trying the President, Vice Presidents, the President of the National Assembly, members of the Supreme courts of North and South Sudan. The decisions of the constitutional court shall be binding and not subject to approval or review by the Legislature or any other authority.
Participants recommended establishment of Judicial Service Commission (former Judicial Council). The aim of this Judicial Service Commission should include review of grievances against past policies of unfair dismissal to members of the judiciary. Such policies resulted in lost of rare and competent judges. It is prudent therefore to establish rules and regulations that could guarantee transparency in appointments and promotions. These regulations should enshrine affirmative action in employment regarding women, people of Southern Sudan and historically marginalized areas without compromising the judiciary recruitment standards.
Participants affirmed the importance of widening the concept of the Attorney General or Public Attorney to include among its main duties protection of the Society. Currently, the Attorney–General’s role is the protection of the State. Its role should also include guaranteeing equality and upholding the rule of law in the country. However, some participants suggested separation of the Ministry of Justice from the Attorney-General Chambers, while others suggested that the separation was unnecessary.
Participants affirmed the independence of Advocacy Profession and the necessity of regulating its professional and trade union structures through an independent law. The law should guarantee its efficiency and eliminates any impediments to carrying out its principle goal of defending basic rights, fundamental freedoms and upholding the rule of law.
IV. State Structure and levels of Governance
Participants observed that the draft constitution concluded an asymmetrical federal system of governance between the North and South during the interim period. This system of governance created Southern Sudan with its constitution, legislative, government with ten states and their various constitutions, legislative assemblies and governments. The South also has the right of participation in various levels of the National Federal Government. On the other hand, the North, with all its states is under the National Federal Government. The participants, therefore, noted that such arrangements were unfair as it deprived the Northern States not only of their formal rights and content but also with exercising these rights that meet their national aspirations.
Participants recommended the following:
o Affirmation of the decentralized system of rule in Sudan during the interim period.
o Affirmation of regional governance of Southern Sudan with its states, constitutions, legislatives, governments and any other privileges derived from the comprehensive peace agreement. This affirmation includes its ratio and percentages at the national federal level including holding of the position of First Vice-President by the President of the Government of South Sudan.
o Establishment of Six States in Northern Sudan each with their constitutions, legislatives and governments. The Northern states should consist of the following: Northern, Eastern, Central, Khartoum, Kordofan and Darfur. Every state shall have number of states with relevant constitutions, legislatives and governments in addition to local council levels in accordance with the wishes of the people in each region. Such arrangement will create balance at the federal governance level between the North and the South. It will further bring the administration closer to people, ensure participation in governance and consolidate democracy.
o The presidents of Regional Governments shall become vice-presidents except the region from which the President is nationally elected. The powers for vie-presidents shall be agreed upon without prejudice to the agreed powers of the First vice-President of the Republic who shall be the President of Government of Southern Sudan in accordance with Comprehensive Peace Agreement.
o Participants agreed that the power sharing and the levels of governance provided in the agreement for Southern Sudan be generalized to the other regions of the country except the special rights acquired by the south for historical reasons like the Right of self-determination, separate army and limited independent external relations.
o Participants noted that the most significant privileges acquired by the two areas of South Kordofan and Blue Nile in the agreement is the land Commission and popular consultations. These privileges could be generalized to the other Regions of the country, as this will consolidate the democratic process in the Sudan. This will also lead to merging the two areas into Kordofan region and Central region respectively without prejudice to their special status stipulated in the Comprehensive Peace Agreement. Such arrangements will make the unity option attractive.
o Participants emphasized as well that all other privileges and rights acquired by the two areas or any other area in the comprehensive peace agreement such as Developmental funds and special military status must be adhered to and guaranteed. These privileges and rights do not contradict or adversely affect the proposed Federal governance arrangements stated in this declaration.
o Participants noted that the special arrangements agreed on Abyei in accordance of Annex 2, page 73 Arabic versions, are principally based on the American Initiative presented by Senator John Danforth on 19/03/2004. The participants affirmed their support to the agreement on Abyei but emphasized guaranteeing the historical rights of passage and grazing to the Messiryia Arabs through Abyei. This right should not be guaranteed during the interim period only but as permanent rights irrespective of the result of the Referendum on Self-determination.
o Participants noted that the draft stipulates appointment of Legislative authority by the Presidency before the elections with defined percentages: 70% Northerners and 30% Southerners. The National Congress Party percentage is 52% (49% Northerners + 3% Southerners), SPLM 28% (21% Northerners + 7% Northerners), other Northern political forces 14% and other Southern political forces 6%. Participants noted with concern that such arrangement is faulty and unjust as it is clear indication of perpetuating authoritarianism even upon the Legislative body that will be subsequently elected.
o Participants noted that the so-called Interim constitution is actually a Permanent constitution in accordance with Articles 222.1,222.2, which equates voting for unity to voting to this proposed draft constitution at the end of the interim period. Moreover, Article 226.7 presupposes that in case the referendum result is separation, the constitutional articles pertaining to the South shall be deleted. Hence, the other constitutional articles shall continue enforced in the remaining new state of Northern Sudan. The participants expressed concern that this arrangement have no justification whatsoever for an interim process. It creates a permanent arrangement dictated by only two parties of the wider Sudanese political spectrum. The paradox is that this arrangement continues even when one of the parties to it not only withdraws from the political process but also opts out completely from Sudan, the land that the constitutional arrangements envisage to govern permanently.
o Participants noted that on power sharing formula between the North and the South at the Federal level (both legislative and executive), the parties agreed on percentages of (70% Northerners and 30% Southerners). The National Congress Party 52%, SPLM 28%, other Northern political forces 14% and other Southern political forces 6%. This is in accordance to Article 5.2.2 and Para.2 of Implementation Modalities. Participants resolved that the percentage distribution was random without logic, verifiable formula and reference. The adverse implication of such a random formula is that it harms the comprehensive peace agreement and democratic transformation as it divides Sudan on religious basis: Islamic North and non-Islamic South. Moreover, the power sharing formula where the percentage of the National Congress Party in the Northern States is 70%, SPLM/A is 10% and the rest of the political forces including armed groups in West and East Sudan are 20% is not acceptable. This will in turn create instability and warfare in other parts of the country.
o Participants also noted that on power sharing formula in the South (both legislative and executive levels), the parties agreed on percentages of SPLM/A 70%, National Congress Party 15% and other southern political forces 15%. At the States level the SPLM 70%, National Congress Party 10%, other Southern political forces 20%. This is in accordance to Article 2.2.5 of power sharing protocol and Para.2 of Implementation Modalities. Participants again resolved that the percentage distribution was random without logic, verifiable formula and reference. In southern Kordofan and Blue Nile the percentages are between National Congress 55% and SPLM/A 45 and no percentages for other northern and southern political forces. In Southern Sudan there is no percentage allocated for other northern political forces. Again, the participants resolved that the percentage distribution was random without logic, verifiable formula and reference.
Participants therefore, recommended that the interim constitutional framework should embody alternative arrangements as follows:
1. The interim period should be divided into two parts of three years. The first part is the pre-elections period and the second part is post elections period.
2. The elections should be at the end of the third year of the interim period and not the fourth year as stipulated in Para.(9) of the Implementation Modalities. Here are the grounds for this assertion:
a) Article 1.8.3 of Power Sharing Protocol of the Agreement stipulates that “General elections at all levels of Government shall be completed by the end of the third year of the Interim Period” the first part of the interim period is three years.
b) Article 3.3 of the resolutions of the conflict in the two areas of Southern Kordofan and Blue Nile stipulates that the popular consultation shall be conducted in the two areas through an elected legislature at the beginning of the fourth year from the implementation of the comprehensive peace agreement. This clearly means that the elections should be at the end of the third year and beginning of the fourth year.
c) The election date agreed between the Government of Sudan and the National Democratic Alliance (NDA) including the SPLA/M is the end of the third year.
3. The constitutional framework should stipulate that before the elections (during the first three years) all political forces commit themselves and affirm the gains of South Sudan and the three areas as per the peace agreement. Moreover, the constitutional framework makes the agreement part and parcel of the interim constitution and reference for any issue regarding the South and the three areas. The political forces must commit themselves that the democratically elected government will continue the implementation of the agreement until the exercise of the rights of self-determination. Such commitments should include the percentages of power sharing for the South and the three areas at the federal level. This will form constructive guarantees for effective implementation of the Comprehensive Peace Agreement. These guarantees will further eliminate any attempt of considering the National Congress Party as the guarantor of the peace agreement. Hence, any reference to the National Congress Party in the
4. Review of power sharing percentages by all parties to achieve fair distribution through a consensus without affecting the percentages allocated to SPLM/A per Comprehensive Peace Agreement. The agreed percentage should be part of the constitutional framework in the first three years of the interim period preceding the elections.
5. In case that the Government of Sudan and SPLM/A rejecting the suggestions above, the participants emphasized the need to avoid political and constitutional deadlock that may jeopardize peace, unity and democratic transformation. Participants therefore recommended the following:
a) The parties to the agreement namely the Government of Sudan and the SPLM/A and their allies form the Executive for the first three years in accordance with percentages of power sharing (70%-30%) without prejudice to the percentages allocated to the SPLM/A.
b) Regarding the Legislature during the first three years of the interim period the participants had divergent views. While some suggested that the current government of the National Congress Party and its allies should be represented by 42%, the SPLM/A by 28%, other Northern political forces by 24% and the other southern political forces by 6%. Major decisions shall be taken by 75% of the votes. Other participants on the other hand suggested that all percentages must be changed with a view of providing inclusive, fair and equitable legislature. The majority needed for major decisions should be considerable. Such approach will in turn provide opportunity for other parties to influence events in the appointed National Interim Assembly through legislative accountability and supervision during the three years before the elections.
c) Participants recommended fair and equitable representation of the civil society in all institutions specially women in the North and the South.
6. Participants discussed the Independent National Commissions and recommended the following:
a) Establishment of eight Commissions namely, Human Rights Commission, Constitutional Commission, Judicial Commission, Civil Service Commission, Truth, Equity and Reconciliation Commission, Referendum Commission and Revenue Monitoring Commission. In all these commissions the representation should inclusive and allow for the other parties effective participation. Civil society especially women in North and South Sudan must be fairly represented.
b) Percentages agreed for in Para. (a) above, should apply to all commissions except the Human Rights Commission. It is recommended that the percentage of Northern and Southern political forces should be more than the National Congress Party and the SPLM/A (Partnership Government) representation on the Commission. This is justified by the fact that human rights violations are primarily expected from the Sudan Government and the SPLM/A partnership government than from the opposition.
c) Regarding the Judicial Commission, while some participants suggested its formation on political basis to provide political consensus on independence of the judiciary, others suggested that it should be formed from independent personalities on purely professional basis to avoid politicization of the Judiciary.
d) On civil service commission the participants recommended that its primary purpose should be review of grievances committed in early 90s that led to dismissals of many officials and workers for so-called public interest. The Commission should also rebuild the civil service and ensure its competence and independence. This commission should also consider application of affirmative action for women, people of southern Sudan and historically marginalized areas.
7. On Truth, Equity and Reconciliation Commission, the participants noted that the basis of its establishment is Article 1.7 of Power Sharing Protocol where the parties agreed to “initiate a comprehensive process of national reconciliation and healing throughout the country as part of peace building process”. In the light of previous national experiences, the participants recommended that reconciliation must be preceded by accountability, remedy, compensation and redress. These include material and moral remedy to individual and groups. There is no reconciliation based on forgiving the past but on justice. Accountability must replace impunity in Sudan. The constitution should make a new approach taking into consideration past experiences of other countries especially South Africa’s experience of Truth and Reconciliation and Morocco’s Truth and Equity.
8. The democratically elected legislature and executive should commitment themselves to the implementation of the peace agreement during the second part of the interim period in accordance with the recommendations contained in this declaration.
Finally, the participants thank Justice Africa (Sudan Programme) for its invitation and DFID for its generous funding. Moreover, the participants hailed Justice Africa’s efficient organization of this consultation that provided an excellent opportunity to brainstorm on the vital and central issue of constitutional framework for the interim period. The participants appreciated the continuous efforts of Justice Africa in consolidating the role of the civil society regarding momentous events taking place in the Sudan. The participants further suggested that Justice Africa should work inside Sudan during the interim period with its Head Quarters in the national capital Khartoum and branches in other parts of the country.