Possible and impossible in the formation of an interim wartime government in the Sudan (1-3)
Panel I: Interim Wartime Government: Argument and Challenges
After the outbreak of the war in Sudan on April 15, 2023, Raj proposed the need to form an emergency government, which would perform urgent and important tasks of interest to citizens and necessary for the continuation of routine government work. Public services, including the Security and Safety Service, health, education and banks, were completely disrupted, markets were closed, transport and communications were interrupted, domestic trade was halted and export traffic was disrupted. State institutions were absent, in the capital and in the states, and employees were displaced away from their workplaces, public utilities were disrupted, public services were discontinued and citizens rights and freedoms were permitted. In those circumstances, a month after the outbreak of the war, the call for an emergency government of civil society organizations and political activists emerged, and finally the army leadership and the political forces supporting the army were vocally calling out their intention to form an emergency government.
When there is no efficient executive authority capable of providing public services, including security, education and health services, political thinking tends towards the search for the best constitutional means to help create an executive authority, which fills the vacuum created by political conflicts and temporarily contributes to the fulfilment of the functions of the provisional executive until constitutional conditions return to their ideal state. The Sudan has been living in such an exceptional situation for a long time, and now, more urgently, after the outbreak of the war on 15 April 2023, community organizations and civil and political initiatives have begun to contemplate alternatives to the crisis of the executive bodies absence. According to an analytical study carried out by the Peace Research Institute of the University of Khartoum with the International Foundation for Democracy and Elections, of 15 civilian initiatives to bring about peace and reform of the political system, the study found that all initiatives call for the formation of an interim government for the war phase, with specific duration and competencies. The study concluded that 13 initiatives clearly provided for the formation of an interim government, emergency government or crisis government. It follows that societal initiatives consider that there is a vacuum in the executive branch that needs to be addressed urgently.
Transformation and change in the functions of the Government and in the structure of ministries due to the Governments shifting priorities in wartime is common and natural in the context of political changes imposed by war. A new Government consisting of nowhere, and a full Cabinet during the course of war operations, requires a measure of legal and political debate accommodating the circumstances of war, the nature of political relations arising in wartime, as well as the nature of the relationship between citizens and the holding class at the historic moment when the formation of an interim Government is discussed. Among the debates raised by the question of the establishment of executive power in war conditions is the constitutional basis for the process of the formation of the interim Government. To discuss the constitutional basis for the formation of the interim Government, the aim of which is, among other important topics, to seek the authority to form that Government and the bodies to which the Government is subject to oversight and accountability after its formation. This importance derives from the fact that, under the conditions of war and political division, the formation of a transitional Government implies the authorization of a community and political group to exercise public power, at a time when the warring groups are fighting the latest weapons for the same purpose, how is the formation of an interim Government easy in such circumstances?
There are reasonable fears that the attempts to form an interim Government - whatever that Governments description, however limited its competence - may have caused the widening of political differences to provide additional justification for the continuation and expansion of the war.
In this paper, we aim to discuss constitutional alternatives that address the issue of executive absenteeism in the period of war that erupted in the Sudan on 15 April. The paper provides political and constitutional analyses, reviews the options produced by similar experiences, so that interested public decision makers are appointed at the domestic and international levels, and explores their applicability in the current Sudanese political and constitutional context.
We are discussing here with special emphasis on the options for the formation of an interim government in political circumstances combined with the outbreak of war and security and political turmoil. Here we discuss interim government models and options:
- Emergency Government.
- Government of National Salvation (or Government of National Accord).
- Caretaker Government.
- Exile government.
- Shadow government.
- The Government consisting of Chapter VII of the Charter of the United Nations.
The formation of an interim Government under any possible name, in the circumstances of the war now under way in the Sudan, requires taking into account a number of constitutional and political determinants affecting the freedom of the States higher organs to form an interim Government. Among those determinants, political and security conditions, and the absence of the constitutional framework because some of the provisions of the constitutional document had been disrupted since 25 October 2021 The Juba Agreement, which was signed on October 3rd, 2020, New power-sharing mechanisms have been identified in the transition period Peace Agreement , which established 25% of the constitutional positions in the Transitional Authority of the armed movements signatory to the Juba Peace Agreement.
In this chapter, the paper reviews the legislative and policy framework governing the formation of transitional authorities in the Sudan. Among them are opportunities to form an interim Government in the Sudan during the war period and to examine the extent to which one of the interim Governments models corresponds to the Sudanese situation.
Episode II: Political and legal determinants relating to the formation of an interim government in the current war conditions:
We discuss here the political and legal framework governing the formation of the interim government in the Sudan in the circumstances of the war in the Sudan, and then we discuss the legal and constitutional framework, and then we move on to discuss the options available, to see which options are applicable in the Sudan. According to the detail below:
(1) Political and social divide after 25 October 2021 coup d état
The war between the President and the Deputy President of the Sovereign Council and the Commander-in-Chief of the Armed Forces and the Commander-in-Chief of the Rapid Support Forces ignited in Khartoum on 15 April. The interconnectedness of institutional relations between FARDC, RSF and the Transitional Government, in the transitional period, and during the period prior to the start of hostilities, has had a significant impact on the performance and effectiveness of the existing executive at the moment of the outbreak of war. After the overthrow of Prime Minister Abdalla Hamdoks government, the executive branch was divided into three main categories within the then ruling class coalition:
- The first category, loyal to General Abdel Fattah al-Burhan, President of the Sovereign Council and Commander-in-Chief of the Peoples Armed Forces.
- The second category consists of Lieutenant General Mohamed Hamdan Dagalo, Vice-President of the Sovereign Council, Commander-in-Chief of the Rapid Support Forces.
- The third category consists of members of armed movements signatories to the Juba Peace Agreement, who under the Convention have 25 key positions in the transitional institutions.
This disparity in loyalties and political affiliations had a clear impact on the low level of government performance before the outbreak of war. This weakness was evident after the outbreak of the war on 15 April, with the emergence of divisions in the executive branch and the absence of administrative oversight and institutional supervision. The effects of this division have been directly on all State institutions, as expected in the circumstances of war. This division, starting with the Sovereign Council, was evident through the institutions of the security sector and ending with the public service sector. Defections have expanded to include political parties and institutions of society, including tribal, clan and spiritual leaders. This reality makes it not easy to create political consensus on the formation of an interim government for the Sudan under the conditions of war and widespread violence. What we are concerned about here is the vertical divide that has plagued transitional governance institutions and, precisely, the division and paralysis that has plagued the executive branch, which has prompted urgent reflection on closing the vacuum in the executive branch.
With reference to category III (armed movements signing the Juba Agreement), which participates in the de facto government, after the coup d état against the transitional government led by Dr. Abdalla Hamdok. This group continued to participate in the institutions of government, at the level of the executive branch and the Sovereign Council, and continued to occupy positions within the institutions of government despite the collapse of the Transitional Government and the freezing of the most important provisions of the Transitional Constitution. The assumption that can be inferred from their insistence on the continuation of transitional governance institutions, despite the countrys changing political and constitutional circumstances, is that that group has obtained political gains for its movements under the Juba Agreement, and that it wants to retain those gains under the Juba Agreement, even after the end of the war. An important question therefore arises as to the position of such armed movements in any temporary new Government or political arrangements. What is the Juba Conventions position as a recognized and effective legislative framework so far?
The FDLC, which was participating in the transitional government before the 25 October coup d état, was finally excluded from power. During the period following the coup d état, FDLC continued to exert political pressure on the group leading the coup d état towards a return to democratic transition and the production of political and constitutional alternatives to restore democratic transition in the Sudan.
The need for national consensus as an entry point for the establishment of an interim government:
The conditions created by the 15 April war in the Sudan have made it difficult for citizens to reach areas and locations where public services are stationed. Those determinations relating to the freedom of movement of individuals also apply to public officials who have to access their workplaces in public facilities to provide services to citizens. We therefore conclude that the determinants of freedom of movement will have a clear impact on the Governments prospective performance. It would therefore be an effective civilian interim government that would be able to communicate daily with citizens without broad consensus, which would be difficult. It is inconceivable that the Government will conduct the general facility without completing an agreement on security arrangements and another agreement on political consensus on the transitional administration. The political agreement serves as the legal framework that must include: achieving national consensus on subjects and transitional measures; establishing security arrangements and a ceasefire agreement; and conceptualizing the final form of governance, governance institutions and oversight methods. Such measures were adopted in peace agreements with armed movements, including the Juba Peace Agreement in Sudan 2021, as well as in the political agreement between the Transitional Military Council and the Forces for the Declaration of Freedom and Change in 2019.
(2) Legal and constitutional determinants:
In this regard, it is necessary to seek the legal reference that must be provided when initiating a decision to form an interim government. In that connection, it would be interesting to know a number of legal determinants. First, was there a constitutional provision governing the process of establishing an interim Government and defining its procedures. Who has the right to form a transitional government, and how to determine the substantive scope and timeline of the interim governments terms of reference. In forming the interim Government, what authority monitors the interim Governments performance. Those provisions are absolutely necessary to affirm the legitimacy of decisions on the provisional Governments composition. From those constitutional provisions, the interim Government acquires legitimacy for its existence and actions.
Constitutional Document 2019:
The provisions of the Constitutional Document 2019 relating to the establishment of the institutions of government were disrupted in the coup d état of 25 October 2021, there are no effective constitutional texts that can be invoked as a legal reference when any interim government is formed. Nor is there a law on the formation of one of the interim government models that we discussed earlier in this paper. Unlike the coup d état, which disrupted the provisions of the constitutional document itself, the constitutional document itself did not contain detailed provisions on the formation of an interim Government in times of war and political crisis.
The constitutional history and the explanations of constitutional scholars in the Sudan do not help constitutional law scholars to find a legal reference governing the distribution of powers during the period of abrogation of the Constitution or coup d état. During the past years of the Sudans history, many Governments have been overthrown by violent revolts, coups d état or other forms of unrest. For too long, the Sudan has remained precarious owing to the mismanagement of ethnic, religious, political or economic differences. The coup d état against the existing system of government effectively invalidated the Constitution, and a new Government could not legally exist within a constitutional framework as long as it came to power through a direct violation of the existing Constitution. Accordingly, Sudanese constitutions were expected to address that political dilemma, if they wanted their political system to be stable.
Juba Peace Agreement:
On October 3, 2020, the Transitional Government of the Sudan signed the Juba Agreement for Peace in the Sudan with representatives of a number of armed groups, also called the parties to the peace process. The importance of this Convention in the context of our debate on the formation of an interim Government in the current circumstances of war lies in the fact that the Convention regulates the process of power-sharing in the transitional period and during the period of the Peace Agreements entry into force.
The Juba Peace Agreement amended the constitutional document of 2019 and established an unequal federal state in the Sudan. The Darfur region will exercise a range of constitutional powers, different from those established by the Convention for the Blue Nile and Kordofan, and it is unclear what powers will be exercised by the rest of the federal territories. Besides, the agreement omits important issues such as the formation of national government, and the internal structure of state governments.
Article 5.1 of the Agreement on National Issues stipulates that parties to the peace process shall be represented in the Council of Ministers in five ministries, i.e. 25% of the Council of Ministers. Article 6.1 of the Agreement on National Issues provides that 25% of the seats of the Transitional Legislative Council or 75 seats shall be granted to the parties to the peace process.
Articles 51.2 and 51.4 of the Blue Nile and Kordofan Agreement stipulate that national institutions, such as the National Constitutional Court and the Supreme Council of the Public Prosecutors Office, must also include members of the states, stipulating that their appointment shall be in accordance with the criteria of competence and professionalism. Article 15 of the Eastern Front Agreement stipulates that the Federal Government shall ensure 14% representation of sons and daughters of eastern Sudan in all civil service posts.
