Army Victories and Constitutional Amendments: Who Holds Power?

Sudanhorizon – Talal Ismail

A heated debate over proposed amendments to Sudan’s 2019 Constitutional Declaration is underway. The amendments aim to remove provisions related to the Forces of Freedom and Change (FFC) and the Rapid Support Forces (RSF) while maintaining the share of power allocated to the signatories of the Juba Peace Agreement. This initiative follows a request from the Sovereignty Council to allied political forces for proposals on revising the transitional document.
With the Sudanese Army making significant field gains, the groundwork is being laid for a new constitutional framework to guide the post-war period. According to reports, the proposed amendments include reducing the Sovereignty Council to nine members: three representing the Juba Peace Agreement parties and six appointed by General Abdel Fattah Al-Burhan.
The amendments also propose that armed movements retain their ministerial quotas but without the ability to choose specific portfolios. The revised constitutional framework would remain in effect for 39 months.
Key Provisions of the Amendments
The proposed amendments suggest that regional and state governors would become members of the Council of Ministers. At the same time, the Prime Minister would have full authority to appoint a government comprising national experts. However, as reported by the Sudan Tribune, the quotas agreed upon in the Juba Peace Agreement would remain intact.
The draft amendments were recently presented to the Council of Ministers, but approval was postponed for further consultations, according to a source who spoke to Sudanhorizon.
Who Nominates the Prime Minister?
Legal expert Taj Al-Din Banga told Al-Muhaqeq that the constitutional amendments aim to resolve issues related to ministerial appointments following the FFC’s exit from power. After the signing of the Juba Peace Agreement, the governing structure included a Transitional Partners Council (TPC) composed of the military, FFC, and peace agreement parties, each represented by nine members.
However, following the events of October 25, 2021—when Al-Burhan dissolved the Sovereignty and Cabinet Councils and ended the partnership with the FFC—a constitutional gap emerged, particularly regarding who has the authority to nominate the Prime Minister.
Banga explained, “After October 25, former Prime Minister Abdalla Hamdok agreed to continue his role, but he resigned two months later. This created uncertainty over which body has the right to nominate a new Prime Minister.”
Banga suggested that constitutional amendments are essential to clarify whether the Sovereignty Council or another entity has the authority to nominate the Prime Minister. Similar challenges apply to the Constitutional Court, the Chief Justice, and the Attorney General, as the relevant bodies to make these nominations no longer exist post-October 25.
Power Dynamics Between the Sovereignty Council and Cabinet
Banga also raised questions about who has the authority to nominate and dismiss ministers and hold them accountable. He emphasized the need to define the relationship and power boundaries between the Sovereignty Council and the Council of Ministers, which is why the Sovereignty Council has called for these amendments.
He further noted a constitutional debate throughout the Juba Peace Agreement, questioning whether its timeline ends after 39 months or only after all provisions—such as security arrangements—are fully implemented.
Criticism of the Constitutional Framework
Another legal expert, Dr. Abdullah Daraf, told Sudanhorizon that a committee had been tasked with drafting amendments to the Constitutional Declaration to reflect the current changes in Sudan. He recalled the evolution of the constitutional process, starting with the April 2019 military takeover, which the August 2019 Constitutional Declaration followed agreed upon by the Transitional Military Council and the FFC.
The 2019 document was amended in November 2020 to incorporate the Juba Peace Agreement and address issues related to the judiciary, including the appointment of the Chief Justice.
Dr. Abdullah Daraf, a legal expert, stated that the 2019 Constitutional Document has faced various criticisms. He noted:
“The document has been criticized for resembling more of a political declaration than a constitution, as it reflects a clear political bias.”
He continued:
“Another major criticism is that the document fostered exclusion by concentrating power and participation in governance among a specific group, the Forces of Freedom and Change (FFC). This is contrary to constitutional principles that promote equality and justice.”
Daraf added:
“The drafting process lacked inclusivity and consensus, as it was prepared by a small committee that remained unknown. This exclusionary process caused the document to be born with inherent divisions, contributing to political instability, which a constitution is meant to prevent.”
The Foundational Authority
Daraf explained the concept of original foundational authority, which emerges in cases of a new state, a coup, or a significant political change. He stated:
“Foundational authority holds absolute freedom to draft or establish a transitional constitution and organize its provisions, without being bound by prior rules or texts, as there are no pre-existing constitutional frameworks in such situations.”
The Role of the Transitional Military Council (TMC)
Referring to Sudan’s context post-April 11, 2019, Daraf said:
“After the political change, the Transitional Military Council (TMC) became the governing authority and represented Sudan’s sovereignty. Since drafting a constitution is a sovereign act, the TMC held the original foundational authority to establish the constitutional document at that time.”
He clarified:
“Although the 2019 Constitutional Document was drafted through an agreement between the TMC and the FFC, the original foundational authority lay with the TMC, which issued the document through Constitutional Decree No. 38 of 2019, signed by General Abdel Fattah Al-Burhan.”
Daraf further emphasized:
“Regardless of whether the foundational authority was the TMC or the FFC, a new authority emerged—the Sovereignty Council—after the dissolution of the TMC. This council became the derivative foundational authority, tasked with amending the constitutional document within the framework and mechanisms specified by the document itself.”
Authority to Amend
Daraf elaborated:
“The derivative foundational authority, as defined, derives its power from the constitutional document. According to Article 24, the Legislative Council holds the authority to amend the document. However, since the Legislative Council has not been formed, Article 25-3 transfers its powers to the Sovereignty Council and the Council of Ministers.”
He confirmed:
“Through joint sessions, the Sovereignty Council and the Council of Ministers can exercise legislative authority and amend the constitutional document with a two-thirds majority of their combined members.”
Daraf concluded:
“The current derivative foundational authority consists of the joint sessions of the Sovereignty Council and the Council of Ministers, as specified by Article 25-3 of the constitutional document.”
Challenges of Amendments
Legal advisor Ahmed Moussa Omar weighed in on the challenges posed by the proposed amendments to the constitutional document. He noted:
“The planned amendments by Sudan’s political leadership have already sparked and will continue to spark significant legal and political debate before, during, and after their enactment. If not managed carefully, these amendments could lead to political turmoil or even internal strife.”
Moussa added:
“Many societal groups are closely watching these amendments with caution. The current constitutional situation is precarious, placing the rebellious RSF militia and its political allies in the same governing structure as national forces defending the country.”
He highlighted procedural concerns:
“This ambiguity could later complicate judicial processes, weaken the interim government, and undermine the legitimacy of state institutions. There is an urgent need to establish a civilian government capable of strengthening Sudan’s international relations and fulfilling the military’s commitment to transition to an agreed-upon civilian rule.”
The Role of Political Forces
Moussa pointed out the limitations of political forces, particularly the FFC:
“The FFC cannot unilaterally amend the constitutional document. It initially sought to align amendments with the Juba Peace Agreement but faced resistance, as parties to the agreement argued they only had the authority to align but not amend the document. Amendments must occur through Article 78 of the constitutional document via the Legislative Council. This raises questions about whether the council is the appropriate alternative legislative authority.”
He further questioned:
“Is the current government a constitutional government or a de facto government? While it holds full authority, its constitutional legitimacy, as defined by the document, remains uncertain. This distinction between executive and constitutional legitimacy needs clarification.”
A Pre-Transitional Agreement
Moussa proposed a solution:
“There should be a pre-transitional phase established through a national consensus, managed by constitutional decrees based on an internal political agreement. This phase could either draft a new document or form a Legislative Council in coordination with national forces and untainted political actors.”
He concluded:
“Such a framework would ensure inclusivity, prevent further divisions, and create a legitimate foundation for governance during Sudan’s transitional period.”

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