The Interim National Constitution of Sudan was adopted on July 6, 2005, following the Comprehensive Peace Agreement (CPA) reached in January 2005 by the National Congress Party, representing the central government, and the Sudan Peoples Liberation Movement. Sudan will be governed by this constitution through a six-year transitional period. At the end of that period Southern Sudan will decide by referendum whether to remain united with the North or to secede and become an independent state. The new constitution is largely based on Sudan’s Constitution of 1998 but also adds provisions required by the CPA for power-sharing on a 70-30 basis with Southern Sudan, an upper house representing the states, and a first and a second vice-president. Article 217 gives the president the right to conduct a referendum on any major issue, and Article 218 obliges any person who runs in the elections to respect the peace agreement and implement its main clauses. The constitution also stipulates that implementing Islamic law "shari'a" effective in the north remains confined to the north only. Article 160 calls for an Interim Constitution of Southern Sudan, which was promulgated in September 2005.
Separation of Executive, Legislative, and Judicial Powers
The president of the republic is elected directly by the people under regulations determined by the National Electoral Commission. Anyone can be nominated and needs to be seconded according to law. The president makes appointments to federal posts, including the Council of Ministers, presides over the cabinet, declares war, initiates draft constitutional amendments and legislation and signs them, grants pardons, and declares a state of emergency.
Executive power is also vested in the Council of Ministers, which, although appointed by the president, is also overseen by the National Assembly, the lower house of the National Legislature. During the transition, Article 80 indicates the following allocation of seats for the “Government of National Unity”: National Congress Party: 52% (49% northerners, 3% southerners), Sudan People’s Liberation Movement: 28% (21% southerners and 7% northerners), other (opposition) northern forces: 14%, and other southerners: 6%. Important sources of legislation are listed as the Islamic law (shari’a), results of referenda, the constitution, and social customs. Legislation may also be guided by public opinion, by the opinion of thinkers, and by public officials.
No criminal proceedings may be initiated against the president of the republic unless the National Assembly issues a written document to this effect. The Assembly may, by a majority of two-thirds of its members, remove the president from office in case of conviction of the offence of treason or any other offence involving honor or honesty. Any person aggrieved by the acts of the president of the republic may contest them in the courts.
The president or half the members of the National Assembly can refer any manner of high importance to a referendum. The result of the referendum has an authority above the law and may not be changed unless by another referendum.
Article 184 stipulates that the governors of each northern state are appointed by the president in consultation with the 1st vice president until elections occur (by 2009). The president of the Government of Southern Sudan is to appoint the governors of the southern states, but one of them must be a member of the National Congress Party, as is also required of the deputy governor of another southern state.
Outside Southern Sudan the sources of legislation are the shari’a and popular consensus. According to the constitution, however, the state is “multi-religious” and the local states in which the majority are not Muslim may legislate new laws or propose revisions to national legislation for passage by the Council of States by a two-thirds majority.
The Sudanese constitution allows for multiparty politics and guarantees basic individual freedoms. It contains a bill of rights that includes the right to life and equality, freedom of movement, worship, association and organization, sanctity of cultural communities, inviolability of communication and privacy, and immunity against detention and arbitrary arrest.
The transitional Constitution keeps the Constitutional Court, established by the 1998 Constitution, to monitor and protect the implementation of the constitution. The president of the republic appoints the Court’s president, a deputy, and five members with the approval of the two-thirds of the Council of State. The Constitutional Court interprets constitutional and legal provisions submitted by the president of the republic, the National Assembly, half the number of governors, or half the states' assemblies. It interprets claims by aggrieved citizens for the protection of constitutional freedoms and rights, and claims of conflict of interest between federal and state organs.
Constitutional Amendments and Procedures
The interim constitution may be amended only by a three-quarter vote by the National Assembly and by the Council of States, sitting separately, and no amendment may be introduced that affects the Comprehensive Peace Agreement without the agreement of both signatories, the National Congress Party and the Sudan People’s Liberation Movement. Furthermore, according to Article 140 the National Constitutional Review Commission “shall continue to perform its functions as prescribed by the Comprehensive Peace Agreement.”
The Sudan is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).