Milestone on the Road to Peace

​​The Sudanese Constitutional Court has all the charm of an African police station: a small, whitewashed building in the midst of in Khartoum, with several bored policemen sitting at a dusty table in the reception area.

There is no sign of venerable, imposing insignia demonstrating the dignity and independence of the constitution. Nor does a stroll through the court reveal much in the way of records: in the decades of Sudanese civil war, the country fought its political and conflicts with weapons.

However, with the peace treaty between the Sudanese People's Liberation Movement (SPLM) and the government, a new interim constitution was agreed upon and signed on July 8, 2005.

A jump start for the constitutional assembly

This road was taken with legal assistance from Germany: the Heidelberg "Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht" (MPI) helped provide a constitutional framework for the content of the six separate peace protocols. The resulting document is intended to jump start the constitutional assembly.

But that was just the beginning of the MPI's work. "The challenge lies in the fact that the peace treaty contains a number of regulations on which there is only formal agreement," says Markus Böckenförde of the MPI. "And the content of these regulations is formulated so vaguely that both sides can interpret the text in their own way." These are unfavorable starting conditions for a constitution.

The MPI's contributions toward the national constitution were not adopted as the institute had hoped. When the MPI's draft appeared in Khartoum newspapers in Arabic translation, the government stepped in and stopped the presses.

In the subsequent constitutional process, the Sudanese government went against the wishes of the South Sudanese liberation movement SPLM and refused to involve the MPI any further, preferring to rely on its own legal experts.

Government fear of external interference

"The government seems to fear that external legal advisors could make suggestions that help the SPLM," Böckenförde suspects. "Thus, our offer was seen as an attempt to interfere in the drafting of the constitution." Yet the MPI's contribution is nothing but a legal compendium of the regulations contained in the individual peace protocols.

The Heidelberg Institute had a greater influence on the development of the interim constitution for the ten southern states: in the first phase the MPI developed a draft of a constitution for the southern part of the country on the basis of the peace treaty. At several workshops with lawyers and representatives of the liberation movement SPLM the draft was worked out in greater detail.

Now the national interim constitution must prove itself in political practice, and to do that a strong constitutional court is needed, as well as competent judges capable of dealing with the open conflicts.

Aims of the interim constitution

The interim constitution is meant to create clarity on a number of different issues: the autonomy of the south, the distribution of oil between north and south, relations between the ethnic groups in both parts of the country, and finally the relationship between the state and religion.

This spring the institute will hold additional workshops for the constitutional judges, meant to build confidence in the future collaboration between the committees and enable the interim constitution to guarantee a secure peace.

Given that the constitutional court consists of six judges from the north and only three from the south, the south can easily be outvoted, as decisions are generally made by simple majority. "That is why it depends on how the judges are picked," says Böckenförde.

The MPI is convinced that the judges appointed so far are non-partisan. "We have the hope that decisions will be made along legal lines. But then it also depends on how much political pressure will be exerted in future and whether the judges will be still be able to resist it."

Eighty percent of the institute's financing comes from the European Union, while the rest is covered by the Foreign Office. "The constitution is a very important part of the implementation of the peace agreement," says Bullen Puncheon Awal, a constitutional judge from the south.

Distribution of power among the ethnic groups

He also believes that the constitution is meaningful for the people from the south. "It helps to define identity." While the former national constitution was based on Islamic Sharia law, the southern part of the country follows the customary and traditional law of the different ethnic groups.

Puncheon is happy about the MPI project. Not only does it mean new computers for the offices of the constitutional court, the project also enables the judges to participate in international networks and keep informed about what is happening outside their country.

One weakness of the south's interim constitution is that at present it provides no mechanism for a fair distribution of power among the ethnic groups. In the south this has led to fears that the majority ethnic group of the Dinka could dominate the new state and politically exclude other ethnic groups.

During the 21-year civil war the position of the south was repeatedly undermined by rivalries among the ethnic groups. Six years later, the south is in a position to decide on its independence, and at the moment the signs are quite unfavorable.

Frederik Richter

© Qantara.de 2006

Translated from the German by Isabel Cole

Qantara.de

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