It is no longer news that Sudanese President Omar Al Bashir has been removed from office. However, the approach employed in effecting his removal remains constitutionally problematic. Bashir’s forceful removal was coordinated by the Sudanese military through a coup d’etat that has attracted global condemnation. The military putsch goes against the spirit and letter of the Sudanese constitution and various charters and conventions of the African Union. Section 1(1) of the 2005 Constitution of Sudan categorically asserts that the Republic of Sudan is a “democratic” and “decentralized” State. The democratic and decentralized character of the State is further reinforced by several other provisions of the Constitution, including its preamble which expresses the desire of the Sudanese people to “establish a decentralized multi-party democratic system.” Nowhere in the constitution is provision made for the Sudanese Armed Forces to intervene in the political affairs of the State under any circumstance. In fact, section 4(d) of the Constitution states that “the authority and powers of government emanate from the sovereign will of the people exercised by them through referenda and in free, direct and periodic elections conducted through universal adult suffrage…” The implication of this is that, in Sudan, as in most other established democracies, political power is not derived from sources other than the people. In essence, sovereignty resides in the Sudanese people, and only they can delegate the exercise of this sovereignty through constitutionally prescribed means. Nobody can hijack or exercise this sovereignty by fiat or sheer force. The coup d’etat initiated and coordinated by the Army is thus clearly an unconstitutional subversion of the sovereign will of the Sudanese people. It is, in actual fact, an act of treason against the State.
Apart from its Constitution, the Republic of Sudan is also a signatory to the 2007 African Charter on Democracy, Elections and Governance, Article 2 of which vehemently rejects, prohibits, and condemns “unconstitutional change of government in any Member State” of the African Union. The Charter regards unconstitutional changes of government as highly inimical to the “stability, peace, security, and development” of the African continent. The above mentioned provision of the African Charter on Democracy is echoed in the Constitutive Act of the African Union, which is the principal constituent instrument of the Union. Article 4(P) of the Constitutive Act lists, as one of the fundamental principles of the Union, the “condemnation and rejection of unconstitutional changes of government” in its Member States.
Having established the illegality and illegitimacy of the military takeover in Sudan, the question that then arises is what steps should be taken to address the problem? Our first recourse must be to the Sudanese Constitution itself. Section 59(a)-(e) of the Constitution outlines the circumstances under which the office of the President of the Republic may be deemed vacant. Such circumstances include situations where the President’s tenure of office has expired, or where the President dies in office. Other circumstances that may indicate vacancy in the office of the President include situations where the President has been declared mentally or physically incapacitated, or where the President has been constitutionally impeached. The office may also be deemed vacant if the President resigns. Bashir’s tenure has not expired. In fact, he still has one more year to complete his five year term of office. He is not dead, and there is nothing to indicate that he is mentally or physically incapacitated. We are then left with resignation and impeachment. It is doubtful whether Bashir may be persuaded to resign in the face of overwhelming opposition to his rule? Bashir’s voluntary resignation may, in fact, be the easiest way out of the current constitutional imbroglio. If he resigns, the First Vice President of the Republic will, in accordance with section 63(1) (a) & (e) of the Sudanese constitution, act in his stead until fresh elections are held to elect a new President. However, should the resignation option be difficult to achieve, the Sudanese National Legislature may exercise the option of impeachment. According to section 60(2) of the constitution, the National Legislature may, by a resolution supported by not less than three-quarters of all its members, institute charges against the President before the Constitutional Court. However, the charges, in this respect, may only be in relation to actions of the President that appears to the legislature to amount to high treason, gross violation of the constitution, or gross misconduct in relation to state affairs. If the President is convicted by the Constitutional Court, the President shall vacate office and the First Vice President shall act in his stead till fresh elections are held to elect another President. The Sudanese National Legislature may wish to exercise this option should the President fail to resign. Whether the politics of power in Sudan creates room for this option to be effectively explored is another matter entirely, and is beyond the scope of this short article. However, the above mentioned options are the only constitutionally recognized means of removing a sitting President or declaring his office vacant in Sudan. Any other method, outside those mentioned above, is patently unconstitutional.
Another question that may arise in relation to the subject matter of this article is whether the coup plotters in Sudan should be allowed to remain in office to conduct elections, as promised by them, in the next two years? Our answer to that must be a resounding “no”! Since their accession to power is illegal and unconstitutional, as already established above, no political transition program initiated and solely managed by them can be constitutionally defended. You cannot build something on nothing. Any transition program built on the unconstitutional mandate being exercised by the military adventurists in Sudan cannot stand. Such is the futility of the existing political arrangement in Sudan.
Then, arises the question, what happens if the military authorities in Sudan fail or refuse to relinquish power and restore democracy in the northern African country? The African Union has, over time, put in place measures, processes, and legal instruments to address issues such as this. Article 7(1)(g) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union empowers the Peace and Security Council to “institute sanctions whenever an unconstitutional change of government takes place in a Member State.” Such sanctions may include suspension of the State Party from the Union, and the trial of perpetrators of the unconstitutional change of government before the competent Court of the Union (see Articles 23–25 of the African Charter on Democracy). The Union may also impose punitive economic sanctions on the affected State. The aim of these sanctions is to mount enormous pressure on the concerned State Party until democracy is effectively restored within its borders. It should be noted however that sanctions can only be imposed by the Union through the Peace and Security Council where diplomatic initiatives have failed to yield tangible results.
If the leaders of the illegal military regime in Sudan fail to restore democracy through procedures laid down in the Sudanese constitution, and equally fail to yield to diplomatic overtures made to them by the African Union, the Union must then promptly commence the process of imposing political and economic sanctions on the country until democratic governance is restored.
Comments
Post a Comment