Sudan's misguided fixation with finding a transformative constitution

Aida Abbashar (YouTube)

A constitution can only be transformative if it is powered by the people, empowers the people, and is part of a broader political project.

By: Aida Abbashar

Last month, the Sudan Bar Association published a draft constitution that was welcomed with widespread international approval. Almost a year after the 25 October military coup overthrew Sudan’s transitional government, domestic political actors and Western embassies alike celebrated the “serious and encouraging initiative”. This new legal framework, they suggested, could reverse the return to military rule and anti-democratic repression under Abdel Fatah al-Burhan. It has the potential, they said, to usher in an “inclusive civilian-led government that can put Sudan on a path to democracy and elections”.

This is far from the first time so much hope has been placed in a Sudanese constitution. In the lead-up to independence in 1956, for instance, the outgoing British colonial powers – along with a group of selected Northern urban elites – crafted the Self-Government Statute. This legal document was meant to guide the new country in drafting a permanent constitution, which was seen as paramount to modern state-building. Conversations about federalism, power-sharing and the identity of the state dominated the newly independent Sudan’s early political discourse.

These discussions came to an abrupt halt in 1958 when General Ibrahim Abboud staged a coup and suspended the Self Government Statute. He showed little interest in developing a constitution, but the need for a defining legal document came to the fore again after the 1964 popular uprising. This time, political parties engaged in intense debates over their contrasting visions over issues such as the relationship between Khartoum and the regions, and the role of Islam in politics.

In 1973, the government of Jaafar al-Nimeiry finally passed a constitution. This document talked of the importance of decentralisation and promised equal citizenship and rights. The government championed it as inclusive, socialist and for the people. The reality, however, was that the framework was full of contradictions and did little to shape Sudan’s future direction. In the early-1980s, for instance, the regime passed the September Laws, which embedded Sharia law in the county’s legal system and marginalised non-Muslims, despite the constitution’s emphasis on inclusivity. The government also arbitrarily amended the constitution to grant more powers to the president.

In 1985, Sudan witnessed another popular uprising. The new authorities immediately suspended the constitution and put the formulation of a new one at the top of their agenda. This time, it was hoped that the legal document would resolve the country’s longstanding questions over law reform, peace with the south, and Sudanese identity.

In 1989, a coup once again halted such talks. It was only in 1998, having ruled by decree for almost a decade, that the regime of Omar al-Bashir recognised the usefulness of a constitution in helping it to cement the Islamic nature of the state, consolidate power, and court international legitimacy. In 2005, this 1998 document was replaced with the Interim National Constitution following the signing of the Comprehensive Peace Agreement. After the 2019 uprising, this, in turn, made way for a Draft Constitutional Declaration, a document that was openly violated by its military co-signatories as they conducted a coup in 2021.

Building transformative power

Throughout Sudan’s history of independence, the making of constitutions has thus been seen as an essential act of state-building. However, as that history also shows, the importance of these processes has often been overstated.

Constitutions have been shaped by those in power, rather than the other way around. Despite the transformative power prescribed to these legal documents, they have done little in Sudan to resolve contradictions, end conflicts, ensure justice, or expand rights. Political elites have simply suspended constitutions, written new ones, or amended supposedly scared laws to suit their needs in the moment. Moreover, when regimes have failed to uphold their duties, the people have removed them not by appealing to legal provisions but through mass uprisings.

The context in which Sudan’s latest constitutional draft has been written is no different. It too has been invested with huge hopes and consumed extensive domestic and international attention. And it too is constrained by wider power dynamics that make it difficult for the document to detail how remnants of the al-Bashir regime will be held accountable or how Sudan’s military regime can be made to return power to civilian rule.

Despite the orthodox international view that sees constitutions as undeniable evidence of state-building, Sudan’s experience shows that they are not transformative in of themselves. The country’s previous constitutions have not protected countless victims of atrocities committed by al-Bashir or his military successors today, nor brought them justice.

This does not mean constitutions are not valuable. It means they can only be truly transformative and for the people if they are reimagined as part of a wider transformative political movement and linked to power, rather than seen as standing above or beyond it. In Sudan today, this means that the document’s drafting must be directed by widespread popular participation, meaningfully and over time, rather than rushed through with meagre consultation. It must be shaped by and speak to people’s genuine concerns and realities. For it to survive and have impact, it must empower – and be powered by – the Sudanese people.