Thread by @zalali

There are some surprises and much that was expected in the final version of Sudan's constitutional declaration. @Int_IDEA and @ConstitutionNet will be publishing a translation shortly. I'll be tweeting out contents as soon as im allowed to do so. @SumitBisarya @AdamAbebe

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe I've just been told that the version of #Sudan's constitutional declaration that i have is public, so i will be tweeting out its contents starting in a few minutes. Watch this space. #SudanRevolts

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe ok here we go. quick comment on context: Sudanese negotiators already agreed a short "political agreement" a few weeks ago. the constitutional declaration is supposed to be a legally enforceable, fully fleshed out document that will guide all aspects of the transition.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe The declaration consists of 20 pages, 70 articles and a timeline of key milestones between today and the first meeting of the future sovereignty council, which is to take place on 1 September 2019.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe 1st substantive point about constitutional declaration, which is relevant for other conflicts (including Libya and Yemen): the declaration replaces the previous constitution, and is now the sole source of constitutional legitimacy in Sudan. Legal revolution in practice.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe Article 2(أ) repeals the 2005 constitution, while leaving in force implementing legislation. I'm not in favor of this approach as this is likely to cause unforeseen consequences. Could cause trouble down the line.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe Article 3 sets out the nature of the Sudanese state, noting that it is defined by a list of characteristics, including that it is "democratic, parliamentary, plural, decentralised" etc. Islam is not mentioned at all in this list.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe Seems obvious that the omitting Islam was deliberate, particularly given the nature of the previous regime. I don't know if there was much debate about this. @aashaib can u provide some insight?

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A5 provides that all state institutions, as well as "unofficial institutions" are bound by the rule of law. A5(2) clarifies that during the transitional period "rule of law" specifically means accountability.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A5(3) provides that there is no state of limitations for war crimes and corruption, despite any provisions to the contrary under Sudanese law. @aashaib - is this a reference to a specific legal text?

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A6 provides that the transitional period will be 39 months long starting from today. A6(2) provides that priority during the first 6 months will be to achieve peace in Sudan.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A7 sets out the mandate for the transitional period. There are 16 subsections (4 more than the political agreement). Obviously most of what is provided for here will not be achievable during the transitional period. There's just too much.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib According to A7, the transitional period's mandate includes improving rights of women, making youth more involved, economic reform, legal reform, institutional reform etc These are great objectives but many arent specific to the transition. That distinction should have been made.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Many of the items under A7 are specific to transition, including: (1) achieving peace, (3) holding former regime officials accountable, (9-10) setting constitutional process in motion, (15) dismantling previous regime, (16) setting up investigative committee for 3 June massacre

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A7(10) provides that a constitutional assembly must be assembled before end of the transitional period. Not clear to me what that means exactly. Does that mean that a new constitution must be adopted within 39 months? @AAshaib

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Section 3 sets out details relating to the transitional system of government. Most of this was originally provided for under the political agreement, so there is much that is not new here.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A8 provides that Sudan is a "decentralised state" (note: not federal) composed of three levels of government: central, regional and local. A8(2) states that each level's responsibilities are set out by law.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A10 repeats the political agreement's wording on the sovereignty council (including that it is to be composed of 5 civilian members and 5 military members and 1 member to be chosen jointly). One change is that A10 sets out date on which power is to be transferred to civilians.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A11 sets out powers of sovereignty council. Most items are standard presidential powers (appointments, etc.). One improvement on earlier drafts is that wording is much tighter. many powers consist merely of "ratifying" decisions.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A11(2) explicitly defines "ratification" as being procedural only. even if presidential council objects, decision will be adopted anyway.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib In so far as i can tell, the only responsibility that the sovereignty council has been given under A11 that specifically relates to the transition is under para (1)(س) which states that the council "oversees the peace process with armed groups"

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Something else: There was a big fuss during the negotiations on who would lead the sovereignty council.But the constitutional declaration doesn't say anything about what "leading" the council actually means. There are no special voting rights for the leader. So what does it mean?

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Does it mean that the council's leader can set the agenda? or something else? The declaration doesn't say.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Something else: A11(3) provides that all of the council decisions are adopted by a two thirds major of its members, which is too high a thresshold. that means that a minority of military members can block any decision.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A15(1) specifically states that the council of ministers is responsible for implementing the transitional period's agenda. This is an improvement on earlier drafts, which did not specifically state which body was responsible for doing this.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A14 makes it clear that the council of minister will be dominated by civilian members. FFC will appoint the PM, who will then select ministers from a list prepared by the FFC. Only exception are ministers of defense and interior who will be chosen by military members of SC.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A15(2) provides that council of ministers "works to end conflict". A11(1)(س) provides that the SC will oversee the council's work in this respect. Not sure what this means exactly but that is what it says.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Looking at powers of the Council of Ministers, its clear that it is a real power broker during the transitional period, which is why its so strange that there wasn't more focus on the council during the negotiations.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib In so far as i can tell, the Sovereignty Council will not have the authority to withdraw confidence or dismiss individual members of the council of ministers. Once again, surprising given the focus of negotiations.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib Another improvement: earlier drafts stated that to be eligible to be a member of the sovereignty council and/or the council of ministers, individuals had to have two sudanese parents and could not hold a second nationality. That has been mostly dropped.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A19 provides that members of the sovereignty council, the PM, individual ministers and governors cannot run in the elections that follow the transitional period. not everyone thinks that this is a good idea. Some expect that it will discourage competent people from joining gov

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A20 provides that individual (not limited to citizens) who has suffered through the actions of the sovereignty council can bring a claim before the constitutional court or to a regular court. That's pretty amazing and will likely lead to a flurry of legal activity.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A21 is on immunity, which was hugely controversial during the negotiations. Earlier drafts included blanket immunity for all members of the sovereignty council, etc. Now immunity applies to all, but can be lifted by a simple majority parliamentary decision.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A23 provides that the transitional parliament is to be appointed. This is so radically different to what is happening and what is being discussed in Yemen and Libya. The Sudanese have no problem simply sweeping everything away.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A23(2) provides that 40% of the membership should be women. A23(3) provides that 67% of members will be chosen by FFC, and 33% by groups that have not signed the FFC's declaration. A23(4) provides that transitional parliament is to be formed within 90 days.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A23(5) provides that the parliament should include political, civilian and professional members, sufi movements, rebel groups, etc.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A24(3) provides that SC and COM's members will exercise legislative powers in joint session until parliament is composed (which could take a while).

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib A28 provides that a new High Judicial Council is established, and will replace the current judicial service commission. however A28 doesn't provide any indication as to what the Council should look like cc: @tomginsburg

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg A30 provides that a constitutional court is to be established but doesn't say when or how it will be done. If tunisia is any indication, this might not happen at all during the transitional period cc @HaykelBMH

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH A34 is major, relates to security institution. It provides that "The armed forces and the rapid intervention forces [are] the military institution". The wording here is very interesting and suggests very careful drafting. cc @AAshaib

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH My interpretation of the use of the singular in "military institution" is that the drafters' intent is that the AF and the RIF are to be part of a single united military institution with the CiCAF at its head. cc: @aashaib @AdamAbebe

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH A36 limits the role of the intelligence services to information collection.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH A39 on state of emergency. Number of issues here, including: (1) no maximum period; (2) parliament has to approve, but what is parliament hasn't been established; (3) no requirement for geographic limitation; (4) includes list of rights that can't be suspended.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH Section 14 is on rights and liberties. Very traditional provisions on civil, political, social and economic rights. Not great drafting here. No limitation clause. Nothing much that is worthy of note here, particularly when compared with other African constitutions.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH Section 15 (A67) provides that a comprehensive peace agreement should be entered into within 6 months. A67(و) says that a general amnesty law should be issued for armed groups.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH A70(2) provides that the transitional military council will be dissolved on the day when the sovereignty council take their oath.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH A70(4)(ا) confirms that the transitional system of government will essentially be parliamentary: it provides that all presidential powers not explicitly mentioned in the constitutional declaration will be transferred to the PM.

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH Final page is a schedule that sets out a list of milestones between today and the first joint meeting between the SC and the COM. Main thing that jumps out is that SC is 2b formed by 18 August, which leaves 14 days for the members to be chosen, including the 11th consensus member

@Int_IDEA @ConstitutionNet @SumitBisarya @AdamAbebe @AAshaib @tomginsburg @HaykelBMH ok i'm done. hope that was useful. best of luck to everyone.

Will tweet more general remarks tomorrow.