Bar Exams in the Pandemic JURIST Digital Scholars
The Case for Amending the Transitional Constitutional Charter to Incorporate the Juba Agreement for Peace in Sudan
© WikiMedia (Ec09495)
The Case for Amending the Transitional Constitutional Charter to Incorporate the Juba Agreement for Peace in Sudan

The Constitutional Charter for the Transitional Period that governs the Transitional Government in Sudan has recently been amended to incorporate the Juba Agreement for Peace in Sudan. The amendment has ignited a fierce political and constitutional debate between those who support the amendment and those who stand against it. This article aims to briefly make the case for amending the Charter and thereby support the first group. It mainly addresses two interrelated constitutional issues: the first is the adequacy and validity of the amendment and the second is the supremacy of the peace agreement over the Charter. The article gives a background to the ongoing debate, critiques the arguments made by those who oppose the amendments, and advances arguments in favor of the amendment. It concludes with a brief summary reiterating the reasons for why the amendment of the Charter was valid and crucial to the evolution and stability of the current historic transition to democracy in Sudan.

Following months of deliberations, a coalition of armed movements that fought the former Sudanese government and the Transitional Government of Sudan signed a peace agreement in Juba, South Sudan on October 3, 2020. The agreement consists of ten chapters dealing with wide-ranging provisions on governance, power and wealth sharing, transitional justice, and security arrangements. According to its terms, the entire agreement shall be incorporated into the Constitutional Charter for the Transnational Period, 2019 (the Charter) within ten days from the date of its signing. 

On October 7, the signatories to the Juba agreement began deliberations with the Transitional Government over the text of amendments to the Charter to incorporate the peace agreement. The Forces for Freedom and Change (FFC), as a signatory to the Charter, joined in the deliberations. 

On October 18, amendments were adopted at a joint meeting of the Sovereign Council (SC) and Council of Ministers (CoM), which acts as the Transitional Government’s legislative body until the Transitional Legislative Council (TLC) is formed, pursuant to Article 25 (3) of the Charter which states: 

Until the Transitional Legislative Council is formed, the Council’s powers are invested in the members of the Sovereignty Council and the Cabinet, who exercise them in a joint meeting, and who take decisions by consensus or by a two-thirds majority of members.

The amendments change nine provisions of the Charter in line with the Juba Agreement. They extend the timeline for the transitional period, increase the composition of the Sovereign Council by three members, grant signatories a 25% representation in the cabinet and legislature, and allow incumbents from the armed forces to run for office in elections. They also add a supremacy clause, Article 79, stating that the Juba agreement “is considered an annex to this Constitutional Document and an integral part of it and, in the event of any inconsistency between them, the text of the Juba Peace Agreement will prevail.” Article 80 forms a “council of partners” composed of the signatories to the Charter and the Agreement to resolve disputes between the different partners of the transitional government. 

These provisions, especially the supremacy clause, may continue to be contentious. Although the constitutional court is currently defunct, the transitional authorities are due to appoint the judicial authorities who will revive it. At that time, those with standing may be able to bring challenges against the Peace Agreement and Charter amendments to a newly formed constitutional court. 

A number of civil society activists, political leaders, and legal analysts have expressed various criticisms about the decision to amend the Charter. Their position is that the Juba Agreement should not be incorporated into the Charter until the formation of the TLC, and to do otherwise undermines the Charter, constitutional practice, and rule of law.

They urge strict adherence to Article 78 of the Constitutional Charter which states: “This Charter cannot be amended or repealed other than through a two-thirds majority of the members of the Transitional Legislative Council.”  In further support, they argue Article 25 (3) – which gives the SC and CoM legislative powers in the absence of a legislature — is limited to competencies stated in Article 25 (1), which give oversight and law-making functions but do not refer to amendment or repeal of the Charter or incorporation of peace agreements.  In this context, they argue that Article 78 speaks of a “constituent power,” which in their opinion can only be exercised by a legislative council, while Article 25 speaks of “non-constituent powers.”

Relatedly, they argue the agreement should not override the Charter as in the added Article 79, which provides that “in the event of any inconsistency between them, the text of the Juba Peace Agreement will prevail”.

There are legal, practical, and policy-based arguments in favor of incorporation of the Juba Agreement through amendments to the Charter by the SC and CoM using their provisional legislative powers.

Fundamental hermeneutic canons, and more specifically the harmonious interpretation canon, require that we read legal texts, particularly constitutional ones, as a whole and in a sufficiently flexible and harmonious way to allow all provisions to fit together and not contradict one another.  In other words, interpretations that generate unnecessary tensions within the text should be avoided. In so doing, we should also consider the intention of the drafters as well as the unique political context, mindful that a broader interpretation of the provisions is needed to give effect to the overall goals of the Charter.

A key goal of the Charter is to ensure peace and stability, end wars, and chart a roadmap for transition to inclusive democratic governance. Numerous provisions in the mandate, competencies, and powers of the Transitional Government refer to these goals, including responsibility for overseeing the peace process with armed movements. The Charter calls for the incorporation of the outcome of these peace talks, which were expected to include substantive issues. Article 69 lists a wide range of fundamental issues and Article 70 calls for the incorporation of the agreement into the Charter. The Charter, therefore, aims to achieve peace, inclusivity, and democracy. Consequently, any doubts or disputes should be resolved in a way that contributes to achieving the goals or purposes of the Charter. This would also be consistent with another hermeneutic canon, the purposive interpretation canon, which states that in case there is some doubt in terms of the communicative or normative meaning of a legal text, attention should be given to the purpose of the text itself in order to solve that insufficiency. More importantly, it requires interpreters to choose those readings that are most consistent with the purpose and goals of the text.

The incorporation of the agreement raises an important question about which one should be prioritized and, therefore, prevail over the other. This question arises only if one does not reach a conclusion that the incorporation was adequate. For once we conclude that the Agreement was adequately incorporated into the Charter under a harmonious interpretation of Articles 25(3), 70, and 78, then the new provision may address any substantive issue, including the establishment of an internal hierarchy within the Charter, giving “supremacy” to Article 79 and the Agreement over other provisions of the Charter.

In reality, there are at least some cases where national authorities have prioritized peace over a rigid application of the rules.  For instance, in Colombia, the peace agreement that was signed in 2016 between the Revolutionary Armed Forces of Colombia—People’s Army (FARC) and the Colombian Government provided that the constitution should be amended and that that amendment should be approved by the people in a referendum. The agreement was put to a referendum, but the people voted against the deal. The authorities responded by making cosmetic changes to the agreement and then passing it anyway. A claim was brought before the Constitutional Court, which found that the adoption of the agreement and of the constitutional amendments was valid, despite the referendum results.

The Court decided that the constitution: 

imposes on the organs and authorities of the State compliance in good faith with the contents and purposes of the Final Agreement, which, within the scope of their respective jurisdictions, enjoy a margin of appreciation in order to choose the most appropriate means for doing so, within the framework of the agreement and under the principle of progressivity

In other words, it opted for flexibility.

In some other cases, however, a purist approach to constitutions has gotten in the way of peace agreements.  For instance, in Yemen, Security Council Resolution 2216(SCR2216) has been interpreted by the UN and by the internationally recognized government as meaning that the Houthis should withdraw from the capital and re-engage in the transitional process that was ongoing before the war started (e.g. SCR2216 is trying to wind the clock back to the end of 2014).  The internationally recognized government has taken that further by insisting that whatever peace agreement is agreed to between the parties must be in conformity with the existing 1991 constitution and that no amendment can result from the peace agreement.  The result of that position is that the parties have not been able to reach an agreement and the conflict is still ongoing. The Yemeni example is one that Sudan certainly needs to avoid, and thus abiding by the purposive interpretation canon is necessary. 

Critics argue Article 25 (3) does not allow the SC and CoM to amend the Charter. This reading is too narrow. It is true the competencies of the TLC described in Article 25 (1) do not explicitly mention amendments, but they refer to a range of significant legislative and oversight powers, including ratification of treaties, which in theory have the same status as the constitution. If the drafters were truly intent on excluding the SC and CoM’s from making any changes to the constitution, they would have made that limitation clear, because it is such an important restriction in the context of a transitional situation. Article 25(3) speaks of “powers”, without any caveat or limitations. As such, it refers to all its powers, which, necessarily, include those established in Article 78.

Critics also say Article 78’s requirement of a two-thirds majority of the TLC to amend or repeal the Charter excludes the SC and CoM from doing so. They read Article 78 to take precedence because it is a stand-alone provision that applies to the entire Charter, overriding Article 25 (3). This reflects a strict-construction interpretation that is not appropriate in this context and undermines the objectives of the Charter. The relevant interpretation canon, in this context, is the effectiveness interpretation, which states that legal texts should be interpreted in a way that makes them work effectively. In other words, interpretations that impede the adequate implementation of the text should be avoided. Interpretation is supposed to help the text (and its implementation), not hinder or undermine it.

As a practical matter, the SC and CoM have relied on provisional legislative powers for well over a year already, because political parties have yet to form the TLC, as they were required to do by the Charter within ninety days of its signing.  As a result, the SC and CoM must still rely on this provision to carry out all necessary functions that should in ideal circumstances be exercised by the TLC. Arguing that Article 78 only empowers the TLC to amend the Charter would mean that, until the TLC is up and running, the Charter is totally unamendable. That reading contradicts the “effectiveness” canon, as it creates a situation that risks making the Charter unworkable.

In a nutshell, the most harmonious, effective, and purposive interpretation of the Charter is that the SC and CoM can, under Article 25(3), amend the Charter pursuant to Article 78 to include the peace agreements, as required by Article 70. All other readings risk destroying one of these provisions.

The Charter anticipates incorporating wide-ranging substantive peace agreements. Article 70 states that: “The comprehensive peace agreements signed between the Transitional Government and the armed movements shall be included in this Constitutional Charter in accordance with its provisions.” By the terms of the Charter itself, the only way to make changes to the Charter is through an amendment. Therefore, this appears to be the only way to incorporate the peace agreement. This method is not unique. There are several other recent examples of peace agreements being incorporated into the constitution by amendment. These include: 

  1. The 1998 Constitution of Sudan, which was repealed altogether and replaced by the 2005 Interim Constitution. The 2005 Interim Constitution reflected the provisions of the Naivasha Comprehensive Peace Agreement. 

  2. Lebanon after the 1975-1990 civil war.  The constitution was amended pursuant to the Taif Agreement of 1989

  3. South Sudan’s constitution, which was amended pursuant to the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (2018).

  4. Chile’s constitution, which was amended pursuant to the November 15 political agreement.

  5. Kenya’s constitution, which was amended pursuant to the National Accord, and

  6. Colombia’s 1991 Constitution, which was amended pursuant to the Final Peace Agreement with the FARC.

A related critique is that the Charter’s amendments should not include a supremacy clause as in Article 79. This amendment mirrors the many provisions in the Juba Agreement stating that in cases of conflict, the agreement takes precedence over the Charter. Since the parties who signed it are bound by it, and the Charter’s own provisions reflect an understanding that peace and peace agreements are a national priority, the peace agreement does not appear to be unconstitutional.

The supremacy clause would also be consistent with another hermeneutic canon, the temporal canon, which says that new terms, rules, or judgments supersede the old ones. This would also apply in this case, because the peace agreement was foreseen to be on the same level of importance or higher than the Charter itself.

As mentioned earlier in this article, as long as the incorporation of the peace agreement into the Charter is deemed adequate, then the new provisions it adds may address any substantive issue, including the establishment of an internal hierarchy within the Charter, giving “supremacy” to Article 79 and the Agreement over other provisions of the Charter.

The incorporation of the Juba Peace Agreement reflects an incremental approach to constitution-making, which is appropriate and necessary in this context. Whether the TLC exists or not, the ability of the constituent powers [meaning the military and civilian parties that agreed to the Charter (originally the current military members of the SC and the FFC), which today would be the SC, the CoM, and the FFC] to make changes—as long as they do not contradict Sudan’s international human rights obligations—is critical.

It is important to note that this Charter is not a regular, permanent constitution. It derives from peace or political settlement negotiations between military and civilian forces, not through democratic processes or popular participation. It signals a break with the past, as it did not amend the previous constitution (suspending the notion of constitutional continuity). It is temporary, akin to an interim constitution, and aims to reflect political settlements while laying the ground for future inclusive processes, such as a constitutional conference/constitution-making process and elections. Indeed, as the political process continues, authorities may need to amend it again if and when additional peace agreements are concluded.  It follows that the traditional distinction between “constituent powers” and “non-constituent powers” of legislative councils does not apply to the current situation of Sudan.

Thus, there is an overriding political and constitutional value at play here: the adequate and sufficient incorporation of more and more social forces into the constitutional structure. That is, in fact, the whole point of Article 70 and of the Charter in general; more inclusion, more peace, and more agreement. The Charter must be read to effectively account for those values, not the other way around. This situation is not merely a purely legal question, but an existential political moment that should be handled as such.

The cost of waiting for the TLC to be formed before submitting the peace agreement to an amendment process is too high, as it would mean exclusion and return to war or broader war. The political parties have yet to agree on the lists of their appointments to the TLC and could delay for an indefinite period.  Any delay would signal a lack of commitment to the agreement and undermine its integrity and the credibility of the Transitional Government, a result that contradicts the spirit and goals of the Charter. It would have been unreasonable and a hindrance to the implementation of the Charter had the SC and CoM otherwise decided not to amend the Charter until after the TLC is established. 

In conclusion, transitional situations, unsurprisingly, always raise complicated political and constitutional questions. The ongoing debate over the amendment of the Constitutional Charter to accommodate the Juba Peace Agreement is no exception. 

Although there are arguments in favor of not amending the Charter by the Sovereign Council and the Council of Ministers in a joint meeting, the legal, practical, and policy-based arguments in favor of the incorporation of the Juba Agreement far outweigh them. The achievement of peace is, undisputedly, the most important task of the Transitional Government. The inability to fulfill that task would certainly result in the failure of the transition, as the political history of Sudan, as well as the histories of other countries, proves. 

The current Constitutional Charter is not a regular, permanent constitution made in a proper constitution-making process in which all segments and groups of Sudanese society have participated. The accommodation of the armed groups and new social forces through constitutional arrangements is part of the process of creating a new, inclusive political and constitutional system in Sudan. For that to occur, the Constitutional Charter should be amended to incorporate the provisions of the agreements that the Transitional Government negotiates with the armed groups.

Strict adherence to conventional constitutional law norms and concepts, such as the distinction between constituent powers and non-constituent powers of parliaments, would be extremely detrimental to the current transition. Sudan should learn from the experience of Yemen, where the decision to uphold the supremacy of the Constitution over a peace agreement resulted in the continuation of the conflict. In contrast, Colombia, where the Constitutional Court decided in favor of amending the Constitution despite a referendum that rejected it, provides a better and more relevant model for Sudan to follow.

 

Nasredeen Abdulbari is Sudan’s Minister of Justice. He was a lecturer in the International and Comparative Law Department, University of Khartoum, and a Stoffel Scholar and a Satter Fellow at Harvard Law School. He holds a Doctor of Juridical Science from Georgetown University Law Center.

 

Suggested Citation: Nasredeen Abdulbari, The Case for Amending the Transitional Constitutional Charter to Incorporate the Juba Agreement for Peace in Sudan, JURIST – Professional Commentary, December 21, 2020, https://www.jurist.org/commentary/2020/12/nasredeen-abdulbari-juba-constitution-sudan/.


This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.


Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.