Perspectives on Judicial Reform in Sudan After the War

By Dr. Awad Al-Hassan Al-Nour
I. The Constitutional Court
Introduction
Although Professor Kamal Idris, the Prime Minister, did not explicitly or thoroughly address judicial reform as a separate section in his speech, several key insights and principles can be drawn from it that intersect with the concept of judicial reform:
Rule of Law:
The speech clearly emphasises the principle of justice as foundational for establishing the rule of law:
“And when you judge between people, judge with justice.”
This principle lies at the heart of any judicial reform, indicating the proposed government’s commitment to upholding the rule of law.
Core Values:
The speech outlines five core values for the Civil Hope Government: honesty, integrity, justice, transparency, and tolerance. These values are essential for building a fair, effective, and trustworthy judicial system.
Justice is the central value of judicial reform, and the emphasis on it highlights its importance.
Transparency is necessary to ensure accountability and prevent corruption in the judicial system.
Honesty and integrity are key to ensuring the impartiality of judges and judicial personnel.
Technocratic, Non-Partisan Government:
The speech indicates that the Hope Government will be technocratic (led by experts and professionals) and non-partisan (not affiliated with political parties). This model can help insulate the judiciary from political and partisan influences, reinforcing its independence and neutrality.
Fighting Corruption:
As corruption is a major issue, any effort to combat it will have a positive impact on the judicial system since corruption undermines justice and erodes public trust in institutions.
National Security Focus:
The speech underscores national security as a foundation, stating that stability and security are prerequisites for any effective judicial system. Justice cannot be achieved in the absence of security and order.
It is known that Sudan’s judicial system has been severely impacted by the war, rendered almost entirely non-functional. It has lost both its physical infrastructure and its institutional integrity. Those seeking justice have lost evidence, and judges, prosecutors, and legal advisors have been displaced. A significant amount of time has been lost.
Nonetheless, there is still hope that the state can build a judicial system that preserves the positive legacy of Sudanese legal professionals, eliminates past shortcomings, and leverages technology and artificial intelligence. This requires proper legislation aligned with successful international experiences—including Sudan’s own contributions. Any vision must remain realistic, accounting for key security and humanitarian challenges, and work toward restoring public trust in the judiciary by addressing issues that directly affect citizens’ lives, including the impact of war and displacement.
Let me begin these insights by discussing constitutional court reform.
The Three Phases of Sudan’s Constitutional Court
1. First Constitutional Court: 1998–2005
Sudan had no constitution before independence. Rather, governance was based on agreements and legislation. The first formal mention of a constitution and its protection by the courts was in the Self-Government Act of 1953. This was followed by the constitutions of 1956, 1964, 1969 (draft), 1973, and 1985. All these constitutions called for the formation of a Supreme Court and included a constitutional chamber. Several laws were enacted to organise the judiciary, specifying the roles of courts, especially the Supreme Court and its constitutional chamber.
In 1998, a major development occurred: the legislator established an independent Constitutional Court, separating it from the Supreme Court and expanding its powers beyond those granted under previous constitutions. The court could not only issue judgments and resolve disputes but also interpret constitutional and legal texts.
Between 1998 and 2003, the Constitutional Court issued about 140 published rulings, including:
75 criminal appeals
Various civil matters: appeals, family disputes, banking cases, etc.
Electoral Disputes and interpretations of media and press laws
Notably, the first Constitutional Court utilised its platform to review rulings of the Supreme Court, including those in personal status cases, which led to both open and latent tensions between the two courts. While some legal professionals viewed this as a form of oversight, the court did not have a significant political role except in the case of the dissolution of the National Assembly.
This court was headed by the late Judge Jalal Ali Lutfi, and its members were all former judges.
2. Second Constitutional Court: 2005–2019 (Post-Comprehensive Peace Agreement)
With the 2005 Constitution and the signing of the Comprehensive Peace Agreement, the second Constitutional Court was formed. It reflected the country’s geographic and regional diversity. Headed by Judge Abdullah Al-Bashir, it included senior judges, academics, young professionals, and one female judge—Sania Al-Rashid. Only Judge Abdullah Ahmed Abdullah from the first court remained, and he later became Chief Justice.
This court functioned until 2019, with most members completing their 7-year term (except Dr. Wahba Mukhtar). After their term ended, no new appointments were made, leaving the court effectively inactive.
Two volumes of rulings were published:
2011: 38 rulings
2012: 75 rulings
This period was marked by the court’s tendency to apply constitutional provisions rigorously. It established several important legal principles and dissenting opinions. One notable case involved Judge Kamal Mohkam Hamed vs. the Government of Sudan regarding judicial bias and the principle of natural justice:
“Justice must not only be done; it must be seen to be done.”
However, the court’s caseload remained light, with judges handling between two and seven cases annually on average.
3. Constitutional Court Under the 2019 Constitutional Declaration
The 2019 Constitutional Declaration created a new High Judicial Council, replacing the 2005 Judicial Service Commission. This council is responsible for appointing members of the Constitutional Court, Chief Justice, and deputies. Article 31 defines the Constitutional Court as independent and separate from the judiciary, tasked with overseeing constitutional compliance and protecting rights and freedoms.
However, the Judicial Service Commission Act of 2005 has not been amended. According to Section 16 of the Declaration, existing institutions remain functional unless dissolved or restructured. This means the old law still applies.
Under this law, the commission is composed of:
Chief Justice (Chair)
Ministers of Justice and Finance
Chairs of the legal committees in the National and States Councils
Dean of the Faculty of Law, University of Khartoum
Bar Association President
Three experts appointed by the President
In reality, the executive branch maintains control over the appointment process. The President (or Sovereign Council) nominates three candidates for the commission to select from. Since 2019, however, key institutions like the National Council and States Council haven’t been formed, and appointments to the commission have not been completed.
There is a fundamental question:
Do we need an independent Constitutional Court, or would it be more effective to return it to a specialised chamber within the Supreme Court under the Chief Justice?
There is merit in the second approach, especially under a federal system. This would:
Promote legal uniformity and coherence across regions
Leverage existing infrastructure and reduce costs
Enhance acceptance of court decisions due to the Supreme Court’s established credibility
Allow integration between constitutional and general legal disciplines
The Constitutional Court has not handled high-profile constitutional cases (like trying a sitting president or resolving inter-branch conflicts), which questions the need for a standalone institution.
Conclusion and Recommendations
Amend the Constitutional Declaration to reintegrate the Constitutional Court as an independent chamber within the Supreme Court and revise the Supreme Court Act accordingly.
If the government insists on establishing a standalone Constitutional Court, then it must:
Form the High Judicial Council
Appoint its members properly.
Ensure the independence, impartiality, and integrity of the judiciary.
Stay tuned for the second article titled: “Judicial Reform.”
Former Judge

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