Fundamental issues to be addressed by the Democratic Constitution

Civil Education Brochure on Peace, the Constitution and Elections
Preparation: Road Center
Translated by moatinoon

There are a number of issues that find their legal basis in the Universal Declaration of Human Rights, which is a universal document inspired by the human conscience of any part of the world. As in the case of other international conventions to which the State is a party, it would never be acceptable for the process of making the Constitution and the resulting content to be in contravention of international obligations. To ensure this, constitutional makers must pay attention to issues relevant to achieving the following objectives:

1) Promotion and protection of human dignity, rights and freedoms
The constitution-making process and the resulting contents of the Constitution must be based on the objective of realizing the principles and rights enshrined in the Universal Declaration of Human Rights and other international instruments guaranteeing to all people all freedoms and rights within the framework of equality, on the understanding that they are all (born free and equal in dignity and rights) All the international documents to which the Sudan is a party, in particular those governing rights and freedoms, affirm respect for the dignity, rights and freedoms of citizens and the dignity of citizens, and achieve justice in all its forms for all without any form of discrimination.

2) Ensuring that governance remains in the hands of the people
In the Democratic Constitution, the will of the people is the basis of the power to govern and is enshrined in free, fair and periodic elections. The new Constitution therefore requires me to recognize that the source of power is the people, and to respect, guarantee and protect that will, by guaranteeing everyones right to equal access to public office in his or her own country. Ensure that this will is exercised through fair elections periodically conducted by universal and equal suffrage and by secret voting, guaranteeing the freedom to vote. All peoples have the right to self-determination and to freely determine their political status and to pursue their economic, social and cultural development. Ensuring the goal of the peoples continued ownership of government is a fundamental principle of a democratic civic State, in which a democratic constitution cannot be made contrary.

3) His Highness reaffirms international commitments
By virtue of the intersectional relations and interests of todays world, the modern State has become part of an international group, governed by international conventions, that has become powerful and binding, making the State governed by productive legal norms outside its national institutions, and national governments inherit and enforce those international obligations. These legal principles proclaimed by international conventions are now gaining legal status that prevails over and above national constitutions. Democratic constitutions are therefore keen to incorporate those principles in their modern constitutions in order to affirm that highness and to ensure that the Constitution is not incompatible with international obligations.

Thus, the conventions signed by the Government of the Republic of the Sudan and all international legal obligations must be reflected in the new Constitution, so that the Constitution does not contravene the provisions of an international convention to which the Sudan is a party. This respect for the high quality of international legal obligations must also include International custom, i.e., unwritten international law, the provisions of which have been entrenched through the progressive international application and acceptance of martial law so that they become binding on all, although they are not a written convention and have not necessarily been signed by the Sudanese State, are nonetheless binding on the Sudanese State and the provisions of the Constitution must not be in contravention of such unwritten international norms.

4) Separation of powers and assurance of their independence
The separation of executive, legislative and judicial powers from each other is a democratic legal principle, summarized in the famous statement of the French philosopher Montesquieu (1689-1755) (power cease). It is a principle aimed at standing against authoritarianism, which usually concentrates all executive, legislative and judicial powers in the hands of the authoritarian ruler, and recognizes his absolute authority. It makes legislation and the judiciary in the service of a limited minority control and possess wealth and resources by looting and does not recognize any principles or authority other than its own.

The existence of the principle of the separation of powers and the guarantee of their independence from each other in the Constitution fulfils the principle of the control of each others powers, prevents the tyranny of power over other powers and strikes a balance of power between the powers, ensuring the independence of the judiciary and safeguarding the constitutional independence of the judiciary. Therefore, in the context of the democratic constitution, the principle of functional independence of the judiciary must be enshrined, since one of the texts that is virtually unanimous in the constitutions jurisprudence requires constitutional independence of the judiciary. The judiciary should be separate, independent and uncontrolled by the legislative and executive branches. Some constitutions have resorted to the provision that judges are independent in the performance of their duties and have full jurisdiction over their jurisdiction and may not be influenced in their judgements.

In the face of the challenge to the application of the principle of the independence of the judiciary, the jurists of the Constitution consider that the three powers must be separated and that any of them should refrain from any unconstitutional influence on the other authority in the exercise of any of their competence. It should be noted that this separation of powers does not mean that they do not cooperate with each other in the public interest, but that each authoritys cooperation with each other from a separate location is a condition for the success of each authoritys work.

Indeed, the implementation of the principle of separation of powers requires a political climate that is aware of the foundations of democratic society, and the existence of an actor of political forces that believe in and enforce the Constitution. The exercise of judicial functions independently, impartially and without fear or favour necessarily requires consideration of the determination of the authority exercising the competence to appoint, promote, hold and dismiss judges.

5) Fairness of power distribution
Many countries have experienced difficult years of instability due to the poor distribution of power between the social and political components of the state. This is a constitutional manifestation in which decisions are monopolized by a limited political or social group or group. An important issue in the Constitution is the issue of the political and administrative distribution of powers to the largest number of citizens, making public power a general people, in which power is distributed over available human capabilities, limiting political, administrative and class centrality.

6) Balancing wealth and resource sharing
In undemocratic constitutions, there is always a center, run by a few groups, that controls the countrys resources, monopolizes wealth and creates laws that protect those property, and ensures its growth in favour of the dominant group, which generates frailty, disrupts development, threatens stability, creates acute class inequality and perpetuates poverty among the basically productive groups.

In view of this, the process of making a new constitution in the Sudan, as in many similar States, is challenged by establishing a system of governance capable of maximizing the value of the State, strengthening its capacities for optimal use of resources, promoting accountability, proper distribution and management, and ensuring that public funds will not be wasted or misused, but will be used to maximize national development outcomes.

Indeed, collective well-being is one of the important issues in modern democratic constitutions established according to international standards. The Sustainable Development Goals (SDGs), which world leaders committed to achieving by the end of 2030, have highlighted key pillars that balance wealth sharing through equality and reduction of discrimination, and by prioritizing inclusive development based on justice and poverty eradication.

The Democratic Constitution must pursue the goals of sustainable development, respect, guarantee and protect citizens individual and collective expression of their interests, hopes and aspirations to guarantee their rights, as regulated by the Universal Declaration of Human Rights, in relation to the social security of all members of society. Protection of persons from unemployment, fair pay and social welfare, maternity and child care, nutrition, clothing, housing, medical care and necessary social services. The right to a persons livelihood in cases of unemployment, sickness, disability, widowhood, old age and other loss of means of subsistence as a result of circumstances beyond his control.

7) Effective management of diversity and ensuring minorities rights
An enormous group of the worlds nations enjoying cultural, social, religious, linguistic, ethnic, political and other diversity, until it became known that the assimilation of that diversity into the constitution-making process and the resulting content of the Constitution was essential. It is necessary for stability, development and peaceful social coexistence. The absence of such assimilation may have been one of the main causes of many internal conflicts, and also caused - among other reasons - the secession of South Sudan from its north in July 2011.

The democratic Constitution must establish the right of distinct, private population groups to special State care. and to create conditions conducive to ensuring their participation in power, in decision-making in the State and in equitable sharing of wealth with other citizens of the State concerned.

Some international documents regulate this and make the State certain obligations, once those obligations have been achieved, to achieve security, stability, development and peaceful coexistence in the State. Among those documents, the United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007, provides in article 1 that indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law. Article 19 adds that indigenous peoples have the right to participate fully by choice at all levels of decision-making on matters affecting their rights, lives and destiny through representatives chosen by themselves in accordance with their own procedures, as well as the right to maintain and develop their own indigenous decision-making institutions. Article 1 of the International Covenant on Civil and Political Rights, 1966, states: All peoples have the right to self-determination. By virtue of this right, they are free to determine their political status and free to pursue their economic, social and cultural development.

8) Ensuring gender sensitivity
The Democratic Constitution respects the human dignity of both women and men. It provides legal opportunities to advance both womens and mens rights, taking into account qualitative differences between women and men in content and language used. He acknowledges that there can be no full democracy without womens equal participation in all aspects of public life. The State is obliged to put in place long-term measures to reach a balanced society that does not constitute a barrier to societys groups and their full enjoyment of their human rights.
The Democratic Constitution follows constitutional language sensitive to differences between women and men, recognizing that women have different needs and interests that deserve equal respect in the Constitution. Women and men are of equal value but for historical reasons, as a result of the lack of equal status and equal access to knowledge and resources, women need special treatment and affirmative action, before they are considered to be equal with men at the starting point. The gender equality provisions of the Constitution provide a legal basis for treatment and actions that pave the way for womens empowerment with more legislation, policies and decisions responsive to womens equal rights.

There are two ways of reaching a gender-sensitive Constitution: the initial method is for the next Constitution to contain a separate document explicitly providing and interpreting womens rights. The second method is to incorporate all points that guarantee and protect womens rights against all forms of discrimination and violence within the articles of the Constitution.
To ensure the entry into force of womens constitutional rights, some measures must be taken into account and implemented at the State and Government levels:

Implementation of the womens rights framework
Establishment of national mechanisms for quality equality
Combating violence against women with clear and direct mechanisms
Combat male mindset and adopt gender-sensitive language and customs
Establishment of national mechanisms for quota and positive discrimination

The Constitutions makers must also recognize all the implications of the social and cultural factors that constitute and define gender-based discrimination. It should be consistent with the sustainable development goals and, by them, the Millennium Development Goals (MDGs), which contained a clear message of the importance of qualitative equality and were seen as a fundamental goal for the well-being of all States. It also incorporates the States obligation to guarantee womens right to participate in public life and political and economic decision-making as a right guaranteed by numerous international instruments to which the Sudan is bound.

- The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), article 7 of which stipulates that States must guarantee womens rights, on equal terms with men, to vote in all elections and referendums, to participate in their formulation and implementation of government policy and to hold public office at all levels,
- The 1995 Beijing Platform for Action, which calls for womens empowerment and full and equal participation in all areas of society, including participation in decision-making and access to power (point 13);
- United Nations Security Council resolution 1325 (2000), which calls on States to increase womens representation at all levels of decision-making;
- United Nations General Assembly resolution on womens political participation (A/RES/66/130) of 2011, which reaffirms that womens effective participation, on equal terms with men, at all levels of decision-making is essential for achieving equality, sustainable development, peace and democracy.