Sudan’s revolution of December 2018 removed dictator Omer al-Bashir and his kleptocratic government from power. The revolution presented a historic opportunity to establish an inclusive and democratic state. The establishment of a civilian-led government in September 2019 was a significant step toward laying the foundations of the institutions and systems necessary for such a state. However, the participation of military leaders – many of whom were previously part of al-Bashir’s government – in the transitional government led to growing tensions between military leaders and civilian leaders. Unable or unwilling to deal with these political differences, the military leaders staged a coup d’état on October 25, 2021, dissolving the civilian government, virtually ending the democratic transformation process, and establishing an authoritarian government once again. The leaders of the coup have, thus far, killed 79 peaceful, anti-military rule protesters and enabled hundreds of civil servants loyal to al-Bashir, who were removed by the post-December revolution civilian government, to return to their former institutions and positions. The coup sparked a new revolutionary wave in Sudan, whose aim is to topple the current de facto government and form an entirely civilian one.
One of the main factors that drove the military leaders to stage the October 25 coup was the scheduled handover of the Sovereignty Council chairmanship to civilian leadership. The handover timeline had been agreed on by military and civilian leaders in an interim constitutional charter, drafted before the establishment of the transitional government. But the actual date of the handover became unclear in this interim charter after it was amended to incorporate the Juba Peace Agreement of October 2020 (JPA), leading among other reasons to a dispute between the two leadership factions and, ultimately, the takeover by the military.
As Minister of Justice during this tumultuous period, I analyzed the different possible readings of the charter and the resulting handover dates based on rules of legal interpretation. Here, I outline the argument for each possible timeline and set the historical and academic record straight on this foundational constitutional question.
As with many public legal questions, analysts have offered a variety of interpretations and conclusions regarding the required date of the handover. My analysis is based on analyzing the interaction between Articles 7(1) and 11(3) of the Constitutional Charter for the Transitional Period (hereinafter Constitutional Charter) and Article 2.1, Title I, of the JPA. I conclude that the handover date of the chairmanship of the Sovereignty Council from military to civilian leadership set by these two instruments is July 3, 2022.
To many advocates of civilian rule, this conclusion may indeed seem unfair. After all, at the time of the JPA, the military leadership had already chaired the Sovereignty Council for 14 of the 21 months called for in the original charter. According to my interpretation of the text of the Constitutional Charter and the JPA, however, the signing of the JPA “reset the clock” on the transition to civilian rule, erasing those 14 months from the transition timeline. Unfortunately for advocates of civilian rule, myself included, no robust legal argument can be built in favor of another possible conclusion. Of course, the parties to the Constitutional Charter and the Juba Peace Agreement could have amended the Constitutional Charter to explicitly provide for another handover date – but they did not.
The handover date question arose because of the ambiguities of the amended version of the Constitutional Charter and the JPA. The question could have been definitively addressed in the Juba peace negotiations. As indicated above, it could have also been addressed by a subsequent agreement between the parties to the Constitutional Charter and the Juba Peace Agreement. But because the military leaders were not willing to engage in any serious legal discussion related to the general handover question, no legal interpretation could have stopped the coup. Although the coup has obviated the effectiveness of the Charter and JPA, the analysis is instructive for other questions of constitutional significance – and as a warning for others navigating the challenging territory of constitutional transition. Ambiguity in drafting, while it might be initially strategic, can ultimately undermine the transition to democratic, constitutional rule, especially when one party fails to engage in good faith legal interpretation.
Background
After the successful removal of al-Bashir’s government, the leadership of the December 19 Revolution, namely, the Forces for Freedom and Change (FFC), and the military leadership engaged in painstaking negotiations. The negotiations resulted in signing the Constitutional Charter for the Transitional Period on August 17, 2019. The two parties agreed to a power-sharing arrangement, whereby military leaders would chair the Sovereignty Council for the first 21 months of a 39-month transitional period (Charter Article 7(1)). According to Article 11(3) of the original unamended Charter, on May 17, 2021, civilian members were to take over for the remaining 18 months.
That timeline was extended by the signing of the Juba Peace Agreement or JPA on October 3, 2020. The agreement, which broadened the base of power-sharing to include signatories from armed movements from the marginalized regions of Sudan that fought al-Bashir’s defunct regime, states that the 39-month transitional period would start again from the date of its signing (JPA Article 2(1)). The agreement provides that:
The two parties have agreed the duration of the transitional period shall be 39 (thirty-nine) months that enters into force upon the date of signing the [Juba] peace agreement.
The significance of the JPA in Sudan’s attempted constitutional transition cannot be overstated. The achievement of peace was one of the most important constitutional tasks of the Transitional Government. The JPA aimed to achieve this peace by, among other things, granting the armed movements three seats in the Sovereignty Council and 25 percent of the Council of Ministers.
Following the signing of the JPA, the government amended the Constitutional Charter to incorporate the agreement, explicitly affirming this change. However, neither the JPA, nor the constitutional amendments set a new handover date – they are completely silent on this matter. The constitutional question that arises, therefore, is: how do we interpret that silence about the handover date? The answer to this question depends on analyzing the interaction between Articles 7(1) and 11(3) of the Charter and Article 2(1), Title I, of the Juba Peace Agreement of October 2020. Below, I identify the basic normative content of this interaction, after engaging in a hermeneutical analysis of all three provisions, with the goal of offering possible answers to a very specific question: Does the restarting of the transitional period (JPA Article 2(1)) also include a restarting of the internal distribution schedule established in Article 11(3) of the Charter?
Basic Applicable Hermeneutic Principles
As far as any legal or constitutional interpretation question is concerned, it is always worthwhile to mention and briefly define each of the relevant interpretive canons that will be employed in the analysis. In this particular case, the following canons are of relevance:
First, the harmonious interpretation canon, which states that legal texts, particularly constitutional ones, are to be interpreted holistically and harmoniously. In other words, interpretations that generate unnecessary tensions within the text should be avoided. This is related to the structural interpretation canon, which states that legal provisions should be interpreted with regard to the entire structure, where they are found, and not just as isolated provisions.
Second, the in pari materia canon, which states that, when there are two or more legal texts that address the same issue, the clear meaning found in one text can be used to supply meaning to an unclear provision found in the other. The end result is a coherent legal norm that is supplied from the productive interaction between legal texts. This is related to the repeated word or concepts canon, which states that, when a particular word, phrase, or concept is used repeatedly in the same legal text, or a separate, but related, legal text, they should have the same communicative and normative meaning.
Third, the effectiveness interpretation canon, which states that legal texts should be interpreted in a way to make them work effectively. In other words, interpretations that impede the adequate implementation of the text should be avoided. Interpretation is supposed to help the text, not to hinder it.
Fourth, the purpose canon, which states that, in case there is some doubt or insufficiency in terms of the communicative or normative meaning of a legal text, attention should be given to the purpose of the text itself in order to overcome the doubt or solve the insufficiency. More importantly, it requires interpreters to choose those readings that are most consistent with the purpose and goals of the text. Purpose is defined as the reasons or motivations behind a particular enactment. This is also related to the intention canon, which focuses on what the parties were attempting to do or achieve when enacting a legal text.
Fifth, the specialty canon, which states that those provisions that address a particular issue specifically displace other provisions that are more general in nature. The basis for this canon is that when a matter or issue has been addressed with particular attention, its result has more weight than a general decision that only impacts the particular issue incidentally.
Sixth, the temporal canon, which states that later provisions displace previous ones. The basis for this canon is that if a recent judgment is in tension with an older one, the new judgment is seen as a reconsideration of the previous decision. This canon is, however, modified by the specialty canon mentioned above: a more recent provision can only displace a previous one if the newer provision is of, at least, the same level of specialty as the older one.
Finally, it is worth mentioning the phenomenon of an ambiguity and how to resolve it. An ambiguity exists when a word, phrase or entire utterance is capable of having two or more communicative (semantic) or normative (legal) meanings, but only one can be the correct one. Many canons can be used to address ambiguities, such as purpose, intent, and in pari materia.
Applying the Principles to Sudan’s Transitional Period
These principles can be used together to determine the best legal answer to questions – such as the question arising out of the interaction between the foundational texts in Sudan’s transition. That question is:
Does the JPA’s restart of the 39-month transitional period also restart the internal distribution, specified in the Charter, between military and civilian members chairing the Sovereignty Council?
Article 7(1) of the Charter states: “The duration of the transitional period shall be thirty-nine Gregorian months, starting from the date of signing of this Constitutional Charter.” (Emphasis added). It should be noted here that this provision identifies a specific concept: “the” transitional period, which has a specific term of duration (39 months) and a specific date on which it starts (signing of the Charter, which is August 17, 2019). The term “transitional period” is mentioned some 23 times in the Charter including, obviously, the title of the document itself: “Constitutional Charter for the Transitional Period of 2019.”
It seems, therefore, that the term (“the transitional period”) is a singular identifier with a specific object and not a generic descriptor. Again, this is reinforced by the use of the word “the.” In other words, it is not just any undefined or abstract transitional period, but an actual one, established in and by the Charter itself.
Article 11 of the Charter addresses the leadership or the chairmanship of the Sovereignty Council. Specifically, Article 11(3) states:
Over the first twenty-one months of the transitional period, the Sovereignty Council is chaired by a person selected by the military members, and in the remaining 18 months of the transition, starting from May 17, 2021, it is chaired by a civilian member selected by the five civilian members who were selected by the [FFC].
This text requires further analysis.
“A” Transitional Period, or “The” Transitional Period?
First, note the repetition of the term “the transitional period.” This means that we are dealing with the same term used in Article 7(1). As such, Article 11(3) is basically an internal distribution schedule with regard to the formal transitional period established in Article 7(1) of the Charter, in this case, in the specific context of the chair of the Sovereignty Council.
In interpreting the Juba Peace Agreement, it is necessary to discuss both the original Arabic version of the agreement as well as the official English translation of the agreement. There is a subtle difference in the terms used in each language that impacts the meaning of the text. Article 2(1), (Title I) of the JPA, in the original Arabic version, states that: “The two parties have agreed the duration of the transitional period shall be 39 (thirty-nine) months that enters into force upon the date of signing the [Juba] peace agreement.” (Emphasis added). Although this provision does not refer to Article 7(1) of the Charter, it is clear it speaks about the same transitional period that Article 7(1) establishes. This interpretation is supported by the use of the word “the,” the use of the exact phrase (“transitional period”), and the use of the same period of time, “39 months.” The implication of this conspicuous provision in the JPA is that the transitional period mentioned in Article 7(1) of the Charter restarts upon the signing of the JPA. In contrast, the official English translation of the JPA provides that: “The Parties agree to a thirty-nine (39) month transitional period that enters into force upon the date of signing the peace agreement.” (Emphasis added).
The provision does not, however, explicitly speak to the impact of the JPA on the scheduled distribution of power between military and civilian control of the Sovereignty Council, in either the Arabic or English version. This is the crux of the interpretive analysis in this case, but the text neither references the original distribution schedule specified in Article 11(3) of the Charter, nor establishes a new one. There are two possible interpretations of this omission.
The first possible interpretation is that the transitional period established in the JPA is a different one from the one mentioned in Article 7(1) of the Charter. If this were the case, then the distribution schedule established in Article 11(3) of the Charter would not be affected and the May 2021 date would still be in effect. The main textual clues for this possibility are (1) the use of the word “a” instead of “the” (in the English translation) thus creating the impression that it is a new and different transitional period; and (2) a lack of reference to Article 7(1) of the Charter or even more generally to the transitional period established in the Charter.
The second possible interpretation is that the transitional period established in this Article is the same as the one mentioned in Article 7(1) of the Charter. If this is the case, as argued here, then the period established in Article 7(1) would start again upon the signing. This second reading is supported by the original Arabic text, the sheer repetition of the same term (“transitional period”) in both the Charter and the JPA, and the reference to the same period (39 months). These factors combine to strongly indicate that the JPA restarted the Article 7(1) transitional period. The remaining question regards the internal distribution schedule created in Article 11(3) of the Charter.
The Distribution of Power in the Charter’s Original Transitional Period
At first glance, Article 11(3) seems to specify the end date of military control of the Sovereignty Council: May 17, 2021. But a closer reading shows that this date is merely illustrative. It is arrived at as a result of the formula mentioned in Article 11(3). The specific date, therefore, has no independent normative force, and it is subject to changes in the formula itself. In other words, the date is merely a mathematical articulation or calculation of the formula that would change if the starting date were to change.
One critical factor in interpreting these provisions is the purpose behind Article 7(1). If the purpose was to establish a transition to permanent civilian control, then the establishment of a new start date would have no effect; the transition to civilian rule would continue until the original period was satisfied. In other words, the clock would continue to run from the beginning, regardless of the renewal of the overall period. But if the purpose was to create a power-sharing structure, then the establishment of a new start date for the transitional period would certainly require a repetition of the schedule.
In this case, the purpose behind Article 7(1) was to create a power-sharing structure (as I will discuss in greater detail below), and therefore, the second construction or assumption should be ruled out. Indeed, the establishment of a permanent civil control was to take place by the end of the transitional period, where the Sudanese would have been able to elect an entirely civilian government in democratic elections.
The Impact of the JPA on the Distribution Schedule
Concluding that the JPA restarted the Article 7(1) 39-month transitional period does not automatically require that the internal distribution schedule for the chairmanship of the Sovereignty Council was restarted, as well. In other words, the remaining question is if the renewal of the Article 7(1) period means that the Article 11(3) distribution schedule also starts again from the beginning. Either option, renewal of Article 11(3) or non-renewal of Article 11(3), is compatible with the conclusion that the JPA restarted the Article 7(1) transitional period.
As discussed above, Article 11(3) specifies May 17, 2021, as the date on which control of the Sovereignty Council would transfer from the military to civilians. However, it is unclear in the text whether this is a fixed date with normative force as part of a one-way transition schedule, or merely an illustration of the calculation made under the Charter’s formula for power-sharing. The main textual clue supporting the second possibility is the use of the exact phrase “the transitional period”, which is used 23 times in the Charter and 41 times in the JPA. This repetition and consistency (without any other definitions offered for the term) indicates that the references are to the same specific thing, and not two separate objects – and therefore that the restarting of the 39-month transitional period upon the signing of the JPA would also reset the distribution schedule, beginning with 21 (more) months of military control.
The final remaining issue is whether, despite these textual clues suggesting that the JPA restarted the power distribution clock, the internal distribution schedule of Article 11(3) was in fact part of a one-way transition that remained unaffected by the JPA.
In order to answer this, it would be worthwhile to take into consideration the purpose of Article 2.1 (Title I) of the JPA, as well as the intent of the parties that made the agreement and the aforementioned issue regarding the purpose of the original Article 11(3) distribution schedule.
As we can see, Article 2(1), in both Arabic and English, is silent on the specific matter of the May 2021 date mentioned in Article 11(3) and with regard to the more general issue of the renewal of the distribution schedule mentioned there. Moreover, it is silent with regard to whether the transition to civilian leadership of the Sovereignty Council is impacted by its terms.
Silence, by definition, is ambiguity, and being silent, by definition, is being ambiguous. The best tool for solving ambiguities is context, which is often supplied by purpose and intent.
In this particular context, the text is silent because the drafters likely saw no need to say anything specific about the May 2021 date. After removing al-Bashir and his government in April 2019, the military leaders were initially utterly unwilling to hand over or share power with the civilian leaders. The negotiations and subsequent constitutional charter that civilian leaders were ultimately able to draft with the military were about sharing power, which the civilians planned to use to create institutions for permanent and full civilian control through democratic elections to be held before the end of the transitional period. The Sovereignty Council itself is not a permanent institution, as it was created and designed only for the transitional period in order to allocate power. The May 2021 date is, therefore, illustrative and not fixed, because the distribution schedule was part of a power-sharing mechanism. The date was mentioned simply because the parties wanted to be specific in explaining the result of the prescribed power-sharing formula. This intent – to form a power-sharing mechanism – indicates that the JPA restarted both Article 7(1) and Article 11(3).
One might argue that the silence does not change the normative force of the May 2021 date, on the assumption that the date was intended to be fixed, and not illustrative, and that the Article 11(3) distribution mechanism is a one-way street toward civilian control. But this interpretation neglects the circumstances in which the Charter was negotiated and agreed on between the civilian and military leaders. As noted above, the military after removing al-Bashir’s government did not want to hand over power to the civilians. It was only once civilian leaders agreed to share power with the military that the post-revolution government, in the form of the transitional Sovereignty Council, could be formed. This indicates that the purpose and intent of the parties was, in fact, power-sharing. This purpose is crucial in supplying the context to resolve this ambiguity of silence in favor of the first interpretation.
Furthermore, both the Preamble and Article 4(1) of the Charter mention democratic structures as the main goal of the transitional period. The Charter specifies that the mandate of the transitional period includes the establishment of mechanisms for the adoption of a permanent constitution (Article 8(9)) and the holding of a constitutional conference before the end of the transitional period (Article 8(10)). A renewal of the Article 11(3) internal distribution schedule during the transitional period would not run contrary to these goals. The same argument applies to the JPA’s references to civilian control as a constitutional goal (e.g., Chapter 2, Article 1 and Article 8.2).
Conclusion
In a nutshell, Article 7(1) of the Charter establishes a 39-month transitional period, while Article 11(3) of the Charter creates an internal distribution schedule for the chairmanship of the Sovereignty Council using the same 39-month timeframe established in Article 7(1), which means that the two articles speak about the same period.
Article 11(3)’s reference to May 2021 is a mere illustration of the operation of the schedule: the main crux of Article 11(3) is the schedule calculated in months. If the May date was going to be a fixed maximum, then the text would have included wording to establish it as such (i.e., “no later than,” etc.).
The JPA’s reference to a 39-month transitional period to start upon the JPA’s signing was a renewal of the Article 7(1) transitional period. The JPA’s reference continually uses the term “the transitional period,” which is a specific term used in the Charter and not a generic idea. This conclusion is bolstered by the fact that the Charter and JPA both set the length of the transitional period at 39 months; it would be a great coincidence if they were different transitional periods.
Although the renewal of the Article 7(1) transitional period does not necessarily and automatically require a restart of Article 11(3)’s internal distribution schedule, the arguments in favor of such a renewal outweigh the arguments against. It is the same period (39-months), so the renewal of one requires the renewal of the other, absent some specific, explicit statement in the JPA. Moreover, the purpose of the Charter bolsters this interpretation: Article 11(3) is a power-sharing structure (not a one-way transition process leading to civilian control) that restarts when the transitional period restarts.
Ultimately, this analysis leads to a new handover date, calculated as 39 months from the signing of the JPA. That date is July 3, 2022.
To many, this may not seem fair, as it erases the nearly 14 months already chaired by the military leadership of the Sovereignty Council before the JPA was signed. However, the terms of both binding constitutional documents lead to this outcome. Practically or politically speaking, Sudan’s political leaders certainly could have decided to change the arrangements, but legally speaking, they could only do so through a legitimate political agreement, adapted into the constitutional order through a constitutional amendment.
The current, blatantly unconstitutional and undemocratic situation in Sudan might not have been avoided through a clear resolution of these textual questions. After all, the military leadership in Sudan was unwilling to engage in any serious legal or political discussions or negotiations with regard to the handover date. However, the public emergence of the question and the arguments made as a result of the lack of a definitive answer to it, among other factors, drove the military to seize control, something that now threatens the security and stability of the country. This painful experience illustrates the crucial importance of thorough and accurate legal drafting in power-sharing arrangements during transitional periods, and the dire possible consequences of apparently esoteric textual ambiguities.