Behind a constitution in the balance

The presentation of a revised version of the Interim National Constitution to the National Legislature after deleting the articles relating to Southern Sudan, raised a large political and legal debate.

The Sudanese political scene is now divided into two opposing sides: the first claims that the procedures followed by Mohamed Bushara Dosa, the Minister of Justice, are all within his jurisdiction, and the second accusing the minister of committing a procedural mistake.

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One of the most prominent opposition voices is the Vice President of the National Assembly Atem Garang who is the third in the national Legislature, just below the presidents of National Assembly and the Council of States. The politician of the Sudan People's Liberation Movement (SPLM), the ruling party of the South, qualifies the actions of Dosa as an effective termination of the transition period.

The first and most important defender of the steps taken by Dosa is the National Assembly Speaker, Ahmed Ibrahim El-Tahir, who considers these steps to be consistent with the provisions of the 2005 Interim Constitution.

A parliamentary rejection

In the latest developments, a member of the parliament revealed the rejection of the constitutional revisions presented by Dosa to the Legislation and Justice Committee.

Mohammad Hassan, a member of the Legislation and Justice Committee and NCP leader, said in a press statement on Sunday that the Committee had completed the study of the draft of the revised constitution presented by the Justice Minister, and found it to contain clear amendments of some articles.

Article 226 of the Constitution, the basic reference for the constitutional review process, speaks clearly of "revision" and not of "amendment".

In search for the Constitution

The text of the revised Constitution, which was deposited to the parliament, reduced the articles of the Interim Constitution from 226 to 168 articles, after deleting the 58 articles relating to Southern Sudan.

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In addition, the draft included the re-formulation of certain materials. Although almost a month has passed since its submission to the Parliament, the revised version has not yet been made public. Repetitive attempts by journalists to view the text of the revised constitution have unfortunately failed.

A legal source - who requested his name to be withheld - was able to view the revised version. He told al-Sudani newspaper that it consists of two parts: first, an explanatory note and second, the text of the revised constitution.

The explanatory note mentions over 80 amendments to the constitution. The amendments include the exclusion of the sections, chapters and materials relating to the competences of Southern Sudan, in addition to the deletion of the phrase "Southern Sudan".

The parliamentary scene

The Supreme Court in Khartoum - picture courtesy of Brien Henderson

Many observers were puzzled as they watched Dosa deliver a copy of the revised Constitution to the presidency of the National Legislature directly without referring it first to the Council of Ministers.

The Vice-President of the Council of States and leader of the NCP Dr Ismail Haj Mussa defended the measures taken by Dosa as legal. He added in his comment to al-Sudani Newspaper that the steps taken by Dosa did not aim to produce a new constitution but to modify the provisions of the interim constitution.

Article 226/10 of the Interim Constitution, which according to Haj Mussa provides legal backing to Dosa, states: "If the outcome of the referendum on self-determination favours secession, the parts, chapters, articles, sub-articles and schedules of this Constitution that provide for Southern Sudan institutions, representation, rights and obligations shall be deemed to have been duly repealed".

Fatal mistake

On the other side however, Ali al-Sayed, a leading figure at the Democratic Unionist Party (DUP) who served as Chairman of the Commission for Peace and Reconciliation in the National Council after the signing of the Comprehensive Peace Agreement (CPA), confirmed in an interview with al-Sudani Newspaper that the Minister of Justice does not have the right to submit a new draft of the constitution to the parliament without referral to the Council of Ministers first.

Download the Interim National Constitution

Yet, he soon corrected himself and explained that the Minister can present the law as a revised version to the ministers and to the government authorities. In al-Sayed's opinion, if the minister would have attached an explanatory note excluding the sections, chapters and materials related to Southern Sudan on the basis of the provisions of article 226/10 of the Interim Constitution, Dosa would not be under any criticism.

Al-Sayed added: "But instead, he (Dosa) submitted an amended constitution. The first mistake he made was the exclusion of previous clauses and the addition of new ones to the introduction, on his own accord. For example, he added the Basmala (In the name of God, Most Gracious, Most Merciful) which was not there before, and respectively deleted things from the original version. This in other words means that he submitted a new constitution."
 
Controversial transition period

Among the issues that have sparked controversy were those about the timing, the legality and the constitutionality of Dosa's move. Despite Ali al-Sayed affirming that article 226/10 of the Interim Constitution states all the parts, chapters, articles, sub-articles and schedules providing for Southern Sudan institutions, representation, rights and obligations are to be dropped in case of secession, he still refers to article 226/9 which states that the 2005 Interim Constitution is to govern the interim period until a a permanent constitution is adopted.

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However, Dr Ismail Haj Mussa offers a different point of view. He thinks that article 226/10 ties up the exclusion of the materials relating to Southern Sudan with the results of the referendum. He as well believes that the Interim Constitution is yet to be valid all through the interim period, provided that all articles related to the South are excluded.

The two sides, each arguing for or against the legitimacy of the revised constitution, have solid grounds to back up their views. The last word however goes to the parliament's Legislation and Justice Committee, which might stand with those rejecting the amended constitution, making the Justice Minister stand on very shaky grounds.

courtesy of Khalid Albaih