BACKGROUND PAPERS PRESENTED TO THE CONFERENCE

A NEW POLITICAL STRUCTURE FOR THE SUDAN

Ahmed Ibrahim Diriage

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SCHEME FOR A FEDERAL CONSTITUTION

    The federation of the Sudan

  1. The Sudan will be constituted as a Federation consisting of States, the number of which will be decided by the elected Constituent Assembly.

  2. There will be a Federal Government and Legislature, and a Government and Legislature for each of the States.

    Division of powers between the federation and the states

  3. Powers of government and law making will be divided between the Federation and the States by reference to subject matter. The Federation will have exclusive legislative and executive authority for the whole country over the matters set out in Schedule I. Both the Federation and the States will have legislative authority and the executive authority conferred by law over the matters set out in Schedule II. (These are called concurrent matters hereafter).

    Each State will have exclusive legislative and executive authority in its territory over the residue of matters (that is, all matters not specifically mentioned in Schedules I and II). They are called State matters hereafter.

  4. In respect of State matters the Federation will, except in the special circumstances in paragraph 5 below, have no constitutional authority in the States and therefore no powers to intervene in the government.
    In respect of Concurrent matters Federal laws will take priority over State laws. The Federation will therefore have the power to take authority over such matters to the extent that it wishes or agrees with a State.

    Special powers of the federation to intervene in state matters

  5. The President may, if satisfied that there is a grave danger (including an imminent danger) whereby the security of the Sudan or any part of it is threatened by war or external aggression or armed rebellion, declare a state of emergency. A state of emergency will lapse if not approved by the National Assembly within 14 days, and if approved will expire after six months unless renewed by the Assembly. The National Legislature may make laws for dealing with emergencies which extend to State matters, but such laws will not be in effect except during a state of emergency. During a state of emergency the President may exercise any powers to legislate by decree or order given him by such emergency laws. He may also give directions to the State authorities as to the exercise of their executive powers.

    During any period when there is in force a Proclamation by the President, and a resolution of the National Assembly confirming it passed not by less than two thirds of the members of the Assembly, declaring that the executive authority of a State is being used to impede the Federal Government or to endanger the existence or financial viability of the Federation the National Legislature may make laws for State matters in that State to the extent necessary to remedy the situation.

    In the exercise of his powers under this paragraph, the President will act on the advice of the Council of Ministers.

    Assistance of the federal armed forces to the states

  6. The President will be required, if requested by the authorities of a State, to make available Federal Armed Forces to assist the State forces in suppressing rebellion or serious disorder. Federal armed forces may also be used in a State under Federal defence powers or during a state of emergency under emergency powers.

    Institutions of the federation: the executive

  7. There will be a President who will be head of state and commander in chief of the military forces. He will be elected by popular vote. Any citizen of the Sudan in possession of full civil rights and not less than thirty five years of age will be qualified for election as President. The President will hold office for a term of 5 years, but he may be removed from office by the National Assembly for gross violations of the Constitution or gross misconduct.

    There will be a Council of Ministers consisting of a Prime Minister and other Ministers. The Prime Minister will be elected by the National Assembly from amongst its own members; the other Ministers will be appointed (and dismissed) by the President on the advice of the Prime Minister. The Council of Ministers will formulate policy, initiate Government legislation and the Budget, and be responsible for the execution of the laws. The Council of Ministers will be accountable to the National Assembly. The Council of Ministers collectively will be required to resign if a vote of no confidence in the Government is passed by the National Assembly.

    The President may submit to the National Assembly the question whether it has confidence in the Government and the Assembly will be required to vote on any question so submitted.

    The President will act on the advice of the Council of Ministers except:

  8. There will be a Vice-President who will be elected by popular vote. The Vice-President will assist the President in performance of his functions; he will assume the office of President for the remainder of his term in the event of the death, resignation or permanent incapacity of the President.

    The national legislature

  9. The National Assembly together with the President will have the Federal Legislative power. The National Assembly will consist of members returned by territorial constituencies and members returned by special constituencies. Not less than four fifths of the membership will be returned by the territorial constituencies.

    The Sudan will be divided into territorial constituencies containing an approximately equal numbers of voters and each of those constituencies will return one member, who will be elected by universal adult suffrage.

    The following sectors of society will constitute special constituencies:

    The persons entitled to vote in each class of special constituency and the method of conducting elections therein will be prescribed by law. Special constituency voters will have no right to vote in territorial constituencies.

  10. The Federal Legislature will enact laws by Bills passed by the National Assembly and assented to by the President. The President may send back Bills submitted by the Assembly for re-consideration, but he must assent to a Bill submitted for a second time. The President will have no powers to legislate by decree by virtue of the Constitution, but powers to make subordinate laws may be delegated to him by Federal law.

  11. The National Assembly will be elected for a term of five years. The President may dissolve the Assembly before the expiration of its five year term if the Government is required by the Constitution to resign and he is satisfied that there is no prospect of another Government being formed within a reasonable time which can command the confidence of the Assembly. The President will have no other power to dissolve the Assembly.

    The national defence council

  12. There will be a National Defence Council which will consist of the President, who will be Chairman, the Prime Minister, State Governors, the Federal Ministers of Finance Interior and Defence, and senior military representatives. The function of the Council will be to keep under review and co-ordinate Government policies with respect to the deployment and use of the regular armed forces (both military and police) for maintaining public order and the security of the Sudan. The Council will have no power to direct the detailed operational use of forces.

    State institutions

  13. For each State there will be a Governor who will be the Head of the Executive. The Governor will be directly elected by popular vote for a fixed term. The Governor will be accountable to the Regional Assembly, and may be removed by the Assembly by resolution passed by two thirds of all its members.

    The Governor will have no powers in relation to the formation of a State Government or Assembly or its dismissal or dissolution.

  14. There will be a State Assembly for each State with a corresponding composition to the National Assembly, (i.e. members returned by territorial constituencies and members returned by special constituencies) and elected in similar manner to National Assembly members. The State Assembly, together with the Governor, will constitute the State Legislature.

    The judiciary

  15. There will be a Federal Supreme Court and a High Court. The function of the Federal Supreme Court will be to adjudicate on legal disputes between the Federation and any State or between States, to interpret the Constitution and determine the constitutionality of laws, and to determine any appeals from the High Court prescribed by law. The High Court will be the superior court of trial jurisdiction throughout the country and will sit in every State. The judges of the Supreme Court and the High Court will be appointed in accordance with the advice of the Judicial Council.

  16. The Constitution will make provision for the composition and powers of the Judicial Council, for the qualifications and disqualifications of judges, and for the tenure of office of judges which will aim to secure that the courts are independent and that the judges are neutral in respect of political, religious, ethnic or similar issues.

  17. Federal Authorities may establish, by law, courts of special jurisdiction in respect of matters within Federal powers. State Authorities may establish, by law, subordinate courts of general/trial jurisdiction and courts of special jurisdiction in respect of matters within State powers (such as personal law). Judges of subordinate courts of trial jurisdiction will be appointed by and subject to the Judicial Council.

    Finance

  18. The revenues of a State will consist of the taxes, fees and duties levied under State laws, and the profits of any enterprise conducted by it. Each State will be entitled, without vote of the Federal Legislature, to an annual sum from Federal funds. The amount distributable to the State as of right and its apportionment between States should be examined by an independent Commission when the division of powers between the Federation and the States by the Constitution has been settled by the Constituent Assembly. The Commission should also examine the question whether taxes and duties should be assigned to States on the lines of the Revenue of Taxes and Duties for the Southern Region of the Sudan Act 1972. The recommendations of the commission with regard to the entitlement of States to an annual sum without vote of the National Legislature should, so far as they are approved by the Constituent Assembly, be given effect by constitutional provision.

  19. The Federation may make grants in aid to the States.

    Public services

  20. The federal civil service and the States civil services will be separate services.

    Religious guarantees

  21. The Constitution will guarantee respect for all recognized religions in the Sudan. Freedom of conscience and free practice and profession of religion will, subject to respect for public order, be guaranteed to all.

    Civil rights

  22. There will be guarantees of other civil rights in the Constitution. The rights referred to in this paragraph and the proceeding paragraph will be enforceable by the Supreme Court or the High Court.

    Amendment of the Constitutions

  23. The provisions of the Constitutions with respect to:

    - the boundaries of each State
    - the division of powers between the Federation and the States
    - the special powers of the Federation to intervene in State matters
    - the Federal Supreme Court and the High Court
    - the constitutional allocation of financial resources to the States
    - the alteration of the Constitution with respect to those matters
    will only be amendable by special procedures which involve the assent of a percentage of the membership of the National Assembly representing more than a bare majority of the country and also the assent of the majority of popular opinion in the States. The special procedure proposed is a 2/3rds majority in the National Assembly and in a similar majority in five or more State Assemblies.
    Amendment to the above provisions of the Constitution will be initiated by bill in the National Assembly which will not be passed unless the special procedures are satisfied.

    The National Legislature, on a proposal supported by a 2/3rds majority in five or more of the States Assemblies, may amend the provisions of the Constitution with respect to the States institutions of Government.

    SCHEDULE I

    List of matters for which the Federal Legislature may make laws and over which the Federal Executive has authority:

    1. Aviation, including airports
    2. Banks and banking; bills of exchange
    3. National borrowing
    4. Currency, coinage and legal tender
    5. Customs and excise duties; export taxes
    6. Defence; naval, military and air forces
    7. External affairs, including deportation, immigration and emigration, aliens, extradition and passports. The negotiation, ratification and implementation of international agreements with respect to any matter.
    8. Fishing beyond territorial waters
    9. Higher educational institutions
    10. Incorporation of companies with object to carry on business throughout the country
    11. Insurance
    12. Maritime shipping and navigation; shipping and navigation on the River Nile
    13. Mines and minerals, including oilfields, oil pipelines, geological surveys and natural gas
    14. External trade and commerce, including standards of goods to be exported
    15. Nuclear energy
    16. Copyright, patents, trade-marks and trade designs
    17. Posts, telegraphs, telephones
    18. Public service of the Federation
    19. Railways
    20. Taxes on the profits of companies and business
    21. Trunk roads
    22. Wireless, broadcasting and television
    23. Offences, jurisdiction of the courts and fees in respect of any of the matters in Items 1-22.

    SCHEDULE II

    List of matters for which both the Federal Legislature and State Legislature may make laws. A Federal law would take priority over a Regional law.

    1. Arms and ammunition
    2. Bankruptcy
    3. Drugs and poisons
    4. Criminal records
    5. Agricultural or industrial projects declared by law of the Federal Legislature to be of national importance
    6. Industrial development
    7. Labour, including conditions of labour and trade unions
    8. The medical and legal professions
    9. Inter-regional trade and commerce
    10. Irrigation
    11. Agricultural, industrial and scientific research
    12. Statistics
    13. Cadastral and topographical surveys
    14. Educational standard
    15. Economic and social planning
    16. Electricity supply
    17. Traffic on Federal trunk roads
    18. Famine relief
    19. Price control
    20. Offences, jurisdiction of the courts and fees in respect of any of the matters in Items 1 - 19

    SCHEDULE III

    A State Legislature will have power to make laws and the Regional Executive may have executive authority over all matters not mentioned in Schedules I and II

    "State matters" would include the following:

(This list is a sample of matters of government not in Schedule I or II and is not exhaustive)

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