Abdelkhalig Shaib is a Sudanese attorney and member of the American and New York Bar Associations, who specializes in constitutionalism and advocates for the importance of upholding the rule of law in Sudan. He actively contributed to Sudan’s constitution-making process and fostered political accommodation within the nation. He is a founding member of the Arab Association of Constitutional Law.
CJLPA: We would like to begin by thanking you for taking the time to interview with us. Your extensive career as a lawyer, in which you have spent substantial time focusing on constitutionalism and good governance, will provide a valuable perspective on pressing Sudanese issues. What is the importance of these factors with regard to Sudan?
Abdelkhalig Shaib: One of the issues we face in Africa, particularly in Sudan, is the lack of governance, specifically good governance. We have never experienced political stability in Sudan since Sudan gained its independence from British-Egyptian rule in 1956. Sudan’s post-independence history has been marked by prolonged military rule, with nearly five of its six decades since independence dominated by military or autocratic governments. Independent Sudan began with high hopes for democratic governance. However, political divisions, regional disparities, and economic challenges quickly destabilized the nascent democracy. In 1958, just two years after independence, Sudan’s first democratic experiment was interrupted by a military coup, setting a precedent for repeated cycles of military intervention and brief, fragile civilian governments.
The era of military rule in Sudan was disrupted by key figures, including Generals Ibrahim Abboud, Jaafar Nimeiri, Omar al-Bashir, and the most recent military leadership amid Sudan’s ongoing conflict. Each leader imposed authoritarian rule marked by centralized control, suppression of opposition, and reliance on security forces to maintain power. This military dominance impeded the development of civilian institutions and hindered attempts to establish sustainable democratic practices.
Sudan’s brief democratic intervals in the mid-1960s and 1980s ended with military takeovers, reflecting a deep-seated pattern where political turmoil and economic crises often led to calls for military ‘stability’. Over time, these patterns consolidated the military’s political influence, making it difficult for civilian actors to achieve a lasting transition. Efforts at democratic governance, most notably following the 2019 ousting of Bashir, faced significant obstacles leading to the coup on 25 October 2021, which marked a significant setback for Sudan’s fragile transition toward democracy. Just two years after the popular uprising that led to the removal of long-time authoritarian leader Omar al-Bashir in 2019, Sudan’s military seized full control, dissolving the transitional government and detaining Prime Minister Abdalla Hamdok along with other civilian leaders. The military’s actions suspended the power-sharing arrangement between civilian and military forces, which had been established to guide Sudan toward democratic elections.
One could say that the 25 October coup in Sudan is one of the main factors that set the stage for the devastating conflict that erupted on 15 April 2023. Following the coup, the military leadership dismantled Sudan’s fragile civilian-military partnership, intensifying political divisions and undermining efforts to build a stable democratic government. The coup exacerbated tensions within the military establishment itself, particularly between the Sudanese Armed Forces (SAF) led by General Abdel Fattah al-Burhan and the Rapid Support Forces (RSF) led by General Mohamed Hamdan Dagalo (Hemedti).
Without a unified government, Sudan became embroiled in power struggles and factional rivalries, especially between the SAF and RSF, whose leaders held differing visions for Sudan’s future governance. Attempts to restore civilian rule and implement security sector reforms only heightened the rivalry, as each faction sought to solidify its influence over Sudan’s political and economic spheres.
This escalated into open conflict on 15 April 2023, when fighting broke out between the SAF and RSF across major cities including Khartoum, leading to widespread violence, civilian casualties, and a massive humanitarian crisis. The ongoing conflict is rooted in the instability following the 2021 coup, as unresolved disputes and weakened civilian governance have left Sudan’s military factions vying for control, plunging the country into one of the most severe crises since its independence.
This cycle has not only affected Sudan’s governance but has also had a profound impact on its society, fuelling conflicts, marginalization, and repeated economic hardships that the people of Sudan continue to endure today.
Sudan’s history of incomplete democratic transitions has left it in a continuous quest for a permanent constitution, reflecting the country’s struggle to establish a stable, inclusive political framework. Each attempted transition, marked by brief democratic interludes interrupted by military coups, has prevented Sudan from enacting a lasting constitution that genuinely represents its diverse population. Military rule has often imposed temporary or provisional constitutional frameworks, which fail to address the deep-seated aspirations for representation, human rights, and federal governance.
When examining constitutionalism in Sudan, this context of military dominance and stalled democratization is essential. Military regimes have typically shaped constitutional documents to entrench their power rather than to facilitate genuine civilian governance. As a result, Sudan’s path to a permanent constitution remains closely linked to its ongoing struggle for a sustainable civilian-led democracy, where constitutionalism could finally take root, free from the influence of military interventions.
The constitution has become more of a draft document rather than a set of institutionalised principles. For constitutions to be effective, they need to be internalised in behaviour and require functional institutions across different branches of government including the executive, legislative, and judicial systems. The challenge lies in balancing power to achieve good governance and uphold constitutional principles. However, one of our main problems in Sudan is that we have been drafting constitutions reactively, in response to peace talks, negotiations, political unrest, or conflicts, rather than through a collective effort to move forward. Consequently, Sudan has long been in search of a permanent constitution which we have yet to achieve.
CJLPA: So the Sudanese constitutions are drafted for that particular moment in time?
AS: Sudan’s constitutions have historically been transitory, drafted to address specific political needs or crises at a given moment rather than as part of a sustained, collective vision for the nation’s future. Each constitutional document has largely been reactive—crafted in response to immediate issues such as conflicts, military takeovers, peace negotiations, or transitional arrangements. These constitutions often cater to the demands of the dominant political or military actors of the time, lacking the broader consensus needed to unify Sudan’s diverse society around a shared national identity and set of enduring principles.
As a result, Sudanese constitutions have repeatedly fallen short of establishing a lasting framework that genuinely reflects the will of the people or supports long-term nation-building. This limited, issue-driven approach to constitutional drafting has left Sudan in a cycle of constitutional instability, where each document is soon replaced or disregarded, perpetuating the country’s quest for a constitution that could serve as a foundation for a lasting democratic order.
CJLPA: In 2013, you warned in an article titled ‘Is Sudan on the Brink of Another Civil War?’ of a potential slide into civil war if the government continued its suppression.[1] Can you say more about that?
AS: In 2013, Sudan experienced what many referred to as its own ‘Arab Spring’, although the broader movement officially began in 2011. Unlike the Arab Spring in North Africa and MENA, which started in Tunisia and spread rapidly to Egypt, Libya, and beyond, the movement in Sudan followed a distinct path, culminating in widespread protests in September 2013. These protests were less focused on constitutionalism and more on demands for freedom of expression, a call for regime change, and a call for democratic elections. This period also came shortly after the historic secession of South Sudan in 2011, a breakpoint moment that significantly shaped Sudan’s political and social landscape.
CJLPA: Looking at 2013, could anything have been done then to salvage the situation and come up with good constitutional principles?
AS: From a constitutional perspective, the regime at the time could have demonstrated the political will to engage genuinely, inclusively, and comprehensively with citizens and political parties. The secession of South Sudan in 2011 presented a pivotal moment, especially as Sudan continued to operate under the 2005 constitution. This constitution emerged from negotiations between the Sudan People’s Liberation Movement (SPLM) and the ruling National Congress Party (NCP), led by the late John Garang and Omar al-Bashir, respectively. Their power-sharing agreement under the Comprehensive Peace Agreement (CPA) was incorporated into the 2005 constitution.
Following South Sudan’s independence, however, there was a strong desire among Sudanese citizens and opposition parties for new constitutional arrangements that would reflect a post-secession Sudan. The expectation was that the NCP would be willing to engage in voluntary dialogue with civilian forces, making structural reforms to enable a multiparty system and lay the groundwork for genuine elections. Yet the regime, represented by the NCP, was unprepared to take these steps, resisting calls for an inclusive political transition and failing to seize the opportunity for a constitution that could reflect the aspirations of a redefined Sudan.
CJLPA: I would like to fast forward to some of the issues in the current conflict, beginning with the 2019 revolt. These include human rights abuses and mismanagement of the economy. The revolt started in a very slow manner, beginning with issues related to the price of bread increasing. Is this curable through constitutional means? How does one go about it to reform such issues?
AS: I would argue that the economic issues in Sudan were deeply tied to the broader political economy and the regime’s use of power to control and access resources. At its core, it was about corruption and a lack of transparency in resource appropriation and allocation, particularly in certain regions of Sudan. While it initially appeared to be a purely economic issue, it was fundamentally about freedom, liberty, and the need for genuine representation. The Sudanese people wanted the right to elect their representatives and participate in decision-making. These factors fuelled the movement—it was not just about access to basic needs like bread, but rather about broader issues of governance, transparency, and corruption, where the regime reaped benefits at the expense of the Sudanese people.
CJLPA: What I understand is that it is an issue of lack of inclusivity, especially for some regions like Darfur. It is akin to a total collapse of the rule of law. Coming from that, how can constitutional mechanisms serve as a tool for creating a more inclusive and accountable political environment?
AS: We need to differentiate between two key aspects. There is no doubt that the 2019 Constitutional Charter had critical shortcomings, which have contributed to our current situation. These issues arose from both flaws in the document itself and the way it was implemented, as well as from the actions of those involved in its execution. The charter was neither faithfully nor genuinely put into practice, and the challenges extended beyond mere deficiencies in the document’s drafting.
One significant example is that the charter envisioned a functioning legislature or parliament within 90 days of its adoption. Instead, what emerged was an Executive branch (ie, the Cabinet) and a Sovereignty Council, which effectively operated in practical terms above the Executive. However, two essential elements were missing: the Parliament and the Constitutional Court. Those who expected a swiftly appointed (not elected) parliament appeared uninterested in actually establishing it, as a functioning parliament would have provided oversight over the government as an executive branch.
The 2019 Constitutional Charter included a provision stating that until the Legislative Council was formed, its powers would rest with the Sovereignty Council and the Cabinet, who would exercise them jointly, with decisions made by consensus or a two-thirds majority. This effectively left the executive and Sovereignty Council as de facto legislators, all in the absence of a Constitutional Court to advise on the legality and constitutionality of the laws. A Constitutional Court was never established as required by the charter.
Could the 2019 Constitutional Charter have been drafted better? Yes, but the challenges go beyond a well-written document. The issues are rooted in the structural and systemic deficiencies of the political system, far beyond the text of the constitution itself.
CJLPA: There was a lack of clear separation of powers.
AS: The lack of separation of powers—or more accurately, the absence of political will—was a significant issue. Certain provisions were misapplied, while others went entirely unimplemented. For instance, the 2019 Constitutional Charter stipulated the establishment of a Constitutional Court, yet this never occurred. In the absence of a Legislative Council, laws were being drafted in joint sessions of the Sovereignty Council and the Cabinet, without the critical oversight of constitutional review. Without a Constitutional Court, there was no avenue for appealing these laws, which posed serious challenges. Additionally, there was a concerning overlap between the Sovereignty Council and the cabinet in managing day-to-day state affairs. The Sovereignty Council was intended to hold largely ceremonial powers, not to engage in the executive functions of governance. However, some members of the Sovereignty Council assumed executive roles, chairing key committees. For instance, Mohamed Hamdan Dagalo (Hemedti) headed both the peace commission and the Economic Committee, despite the fact that the prime minister, with an economic background, should have led the latter within the cabinet. This irony was always present, with Sovereignty Council members—often Hemedti or others—overstepping their intended roles. Such overlaps complicated the transitional process itself, adding layers of dysfunction to an already challenging period.
CJLPA: Besides the peace agreements, the international community and state actors have been accused of hindering justice in Sudan. Can you shed more light on this?
AS: The warring parties in Sudan receive backing from various states within the region and beyond. In this conflict, both sides have openly accused different states of supporting their opponents. The Sudanese military, in particular, has frequently levelled accusations, adding strain to relationships with those allegedly involved. For example, the SAF accused Kenya when President William Ruto proposed deploying troops to protect civilians and ensure the flow of humanitarian aid. A prominent SAF General responded by accusing Ruto of seeking to occupy Sudan, going as far as to challenge Kenya to bring its forces and fight.
In another instance, the same General accused the UAE of supporting the RSF, further heightening tensions between Sudan’s de facto government and the UAE. Meanwhile, many claim Egypt is backing the SAF, with evidence cited to support these accusations. Such allegations—this country supporting one side, that country supporting another—greatly complicate peace efforts, as regional powers are deeply entangled. The UAE, for example, has close ties with the RSF, while Egypt maintains a strong relationship with the SAF. Unless these regional actors are brought to the negotiating table and agree to cease their support, achieving peace will remain challenging.
This conflict could not have persisted without such regional support, which provides the warring parties with weapons and resources. As long as international powers do not hold regional actors accountable, the situation will likely continue, with tragic consequences. The UN Panel of Experts on Sudan has raised serious concerns regarding external support to Sudan’s warring factions. According to a recent report, there is evidence suggesting that the UAE has supplied weapons to the RSF with alarming frequency. The report alleges that shipments were made ‘several times per week’ via Amdjarass, a town in northern Chad, serving as a strategic entry point for the RSF’s supplies. These consistent arms transfers have reportedly enabled the RSF to sustain its operations, escalating violence and complicating peace efforts in Sudan. The UAE’s alleged involvement has intensified diplomatic tensions, as such support directly impacts the conflict’s longevity and severity, underscoring the need for stricter accountability measures to curb external interference that fuels the ongoing crisis.
Although the concept of ‘African solutions for African problems’ is valuable, bias among involved states complicates its effectiveness. As a Sudanese lawyer and African, I advocate for taking responsibility to address our issues, but we are far from achieving this. Our inability to intervene effectively allows our problems to become globalized.
The intense conflict that erupted in Sudan on 15 April 2023, between the SAF and the RSF, transcends a simple power struggle between two ambitious generals who had once aligned to stage a coup against the civilian government on 21 October 2021. This conflict is not merely a contest for dominance where the defeat of one leader signifies victory for the other. Instead, it represents a calculated and brutal campaign by the RSF, directed not only at the military but at civilians, leaving a devastating impact across Sudan. Women and girls, in particular, have borne the brunt of this aggression, facing heightened vulnerabilities and abuses as the violence intensifies. The conflict’s civilian toll underscores the need for urgent intervention and accountability for the atrocities committed against Sudan’s people.
CJLPA: Sudan has experienced numerous conflicts and major events, including the Second Sudanese Civil War (1983-2005), the 2019 revolt, and the recent 2023 conflict. From a governance perspective, how can we prevent such recurrences? What measures should be taken?
AS: I believe the first step is to ensure that the military withdraws from political life and that mechanisms are put in place to prevent its involvement in the economy. Achieving this will require a structured dialogue with the military, similar to the long-term processes seen in Latin America, notably in Chile and Argentina. Additionally, political parties must engage in sincere, inclusive discussions involving all stakeholders to determine the most effective governance system for Sudan. These discussions should explore whether a presidential, parliamentary, or quasi-presidential system would be best suited to the country, as well as how to balance the executive branch with an independent judiciary.
The inherited Westminster model from British colonial rule may not be ideal for Sudan, given the large number of political parties and the difficulties of forming stable coalition governments. Considering alternative models, such as a presidential or quasi-presidential system, could offer greater stability and functionality. These are essential considerations for a viable path forward in Sudan’s political development.
CJLPA: In moving forward and developing a constitutional system through constructive dialogue it is important to address Sudan’s Achilles heel, which is Darfur. The Darfur conflict has long plagued Sudan, marked by ongoing atrocities and humanitarian crises. How can the discussion on constitutionalism be integrated to address the Darfur question and highlight its significance?
AS: I believe the issue of Darfur touches on several fundamental aspects of constitutionalism, including the Bill of Rights and the judiciary’s independence in prosecuting grave crimes committed by military personnel. It also involves addressing war crimes and crimes against humanity within a legal framework. A significant challenge in Darfur is the widespread immunity and impunity enjoyed by perpetrators, exacerbated by Sudan’s non-ratification of the Rome Statute establishing the International Criminal Court (ICC), despite signing it in 1998. This gap led to the ICC’s involvement in Darfur-related cases through UN Security Council Resolution 1593. (2005), which decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court
There are three potential avenues for prosecuting such crimes: first, conducting trials domestically, which has faced obstacles due to the influence of previous regimes; second, creating a hybrid tribunal, which has not yet been proposed; and third, referring cases to the ICC. However, serious discussions with Sudan’s civilian-led government have yet to yield tangible actions. Embedding mechanisms to address past atrocities within the constitution is essential for accountability and conflict prevention. Transitional justice provisions should prioritize criminal justice as a foundation before implementing broader transitional justice measures. However, achieving this requires strong political will and societal unity, as demonstrated in South Africa under Nelson Mandela’s leadership.
Building these mechanisms into the constitution necessitates not only robust legal frameworks but also functional local institutions and capacity-building efforts for those operating within them. Ultimately, it is about establishing a comprehensive ecosystem in which constitutional principles are deeply internalized and democracy becomes part of the societal fabric. However, Sudan still has a long journey ahead to realize these ideals.
CJLPA: So what will it take? Is it about implementing punitive measures to deter future crimes before delving into transitional justice? Should we first hold perpetrators accountable through punitive actions, and then transition to transitional justice, allowing communities to discuss their history and collaboratively map out a way forward?
AS: I do believe that if people know who is responsible for the crimes committed against them, it is unrealistic to expect them to engage in transitional justice mechanisms without accountability. Ultimately, it should be up to the victims to decide the type of justice they wish to pursue or whether to take an alternative path. Without assigning responsibility for these crimes, moving forward becomes exceedingly difficult, as this is not a minor community issue. These individuals have endured profound rejection and oppression, making it essential to address accountability before implementing transitional justice.
Unfortunately, transitional justice has often been used to downplay or normalize issues affecting communities. For example, when the RSF discusses transitional justice, they often refer to the most basic version—focused on ‘moving on’ without a genuine commitment to accountability. During the 2019 sit-in, it was alleged that military forces and the RSF killed over 200 people. Despite establishing a fact-finding committee with a six-month mandate, from June 2019 to 25 October 2021, the committee failed to submit a report to the Prime Minister. This lack of results raises serious doubts about the credibility of such fact-finding missions. Without meaningful prosecutions or tangible outcomes that the community can see and claim ownership of, trust in these processes erodes.
This brings into question whether we are truly committed to justice. While we may state our intent to confront impunity and address abuses of immunity, granting immunity to those responsible and failing to act on the recommendations of critical mechanisms like the fact-finding committee signals a lack of genuine commitment to justice for the victims.
CJLPA: Let’s turn to the transitional period, post-2019. Regarding the challenges and setbacks, in your view, what should have been done?
AS: Transitions are challenging and complex. Sudan’s political parties had been suppressed for over 30 years and, consequently, lacked experience in governance and exercising power. When the transition began, individuals with little practical experience were suddenly placed in cabinet positions and tasked with running the state. In such complex situations, a collective, inclusive approach is essential—everyone must be involved. The issues went beyond the constitution; they extended to how we implemented its provisions and conducted the process itself. If we were to approach this differently, underlying issues would need to be addressed first. One key issue was legitimacy: determining who was entitled to be the political representative. Initially, the Forces of Freedom and Change (FFC), a broad coalition of civilian and rebel groups, held public support. However, as confidence in the FFC waned, the question of legitimacy—specifically, who could negotiate with the military—resurfaced. The Sovereignty Council, comprised of both military and civilian members, represented an unprecedented partnership. This model—a civilian-military agreement—was new not only for Sudan but also for Africa, and it posed significant challenges. Moreover, neighbouring countries and regional actors viewed this model with apprehension. If successful, it would set a precedent that militaries cannot govern alone but must work alongside civilians. In my view, this notion was unsettling for some neighbouring states, who were not supportive of Sudan’s transitional model, adding another layer of complexity to the process.
CJLPA: The historical struggle between military leaders and civilian governments poses a significant challenge, particularly in the context of another transitional period. How did you plan to resolve these past struggles, and what measures were you contemplating to implement?
AS: This is a complex and challenging issue, with no straightforward answer. The military-civilian relationship in Sudan has historically lacked a structured approach. Rather than addressing these relations directly, civilians have often responded to military dominance through uprisings or revolutions, focused on governing arrangements rather than establishing a clear framework for military-civilian interaction.
In the 2019 transition, the military assumed it could create a Transitional Military Council (TMC) to oversee the process, following a model from Sudan’s past revolutions in 1964 and 1985. The precedent was the 1985 TMC, where the military expected civilians to hold partial elections for a constituent assembly, form a government, and let the TMC run the remaining affairs. However, in 2019, political forces, civil society leaders, and political parties pushed for a fully civilian-led government, even proposing that the head of state—through the Sovereignty Council—be a civilian. The compromise became a 50-50 split between civilians and military within the Sovereignty Council.
Since no elections were held, the Forces of Freedom and Change (FFC) emerged as the de facto political incubator of the transition. However, the FFC itself faced internal struggles with divergent voices and approaches to handling the military. Under the power-sharing agreement signed in July 2019 between the TMC and the FFC (which one month later in August 2019 paved the way to the Constitutional Charter), a transitional council was established with six civilian and five military leaders, rotating leadership throughout the transitional period. The military held the council’s chair for the first 21 months, followed by the FFC for 18 months. The agreement granted the FFC significant control over the transitional government—excluding the interior and defence ministers—along with a two-thirds parliamentary majority and the appointment of Abdullah Hamdok as Sudan’s first civilian prime minister since Omar al-Bashir’s rise in 1989.
If we hope to do things differently, meaningful dialogue with the military is essential. Military transitions, as seen in many countries in Latin America, and also in other countries, often require a lengthy process; it is not a piecemeal exercise. Transitions in Sudan are particularly challenging due to decades of dictatorship. There may be no exact blueprint, but it is clear we need a different approach from the one we attempted in the past.
CJLPA: You said it will involve a process and some form of dialogue—what kind of process, and what kind of dialogue? What are we looking at?
AS: Addressing this issue requires a dialogue between political parties and the military, including security forces, with a focus on comprehensive security reform. However, the current conflict adds layers of complexity. Even if the military partially or fully prevails in the conflict, negotiating with them will remain challenging, as they may view security matters as exclusively within their jurisdiction. Nonetheless, engaging with the military is essential, as they must operate as a component within a democratic state.
Reforms are necessary to establish civilian oversight of the military, prevent its involvement in the economy in ways that compete with the private sector, and ensure its primary role is to protect the constitution rather than its own interests. Mechanisms should be developed to define when military intervention in political matters is permissible, with the goal of safeguarding—rather than usurping—political authority.
CJLPA: In the current political situation, the conflict partly stems from an agreement between the paramilitary and the military. One of the main causes of the conflict, as I understand it, is the paramilitary’s reluctance, or outright refusal, to integrate into the military.
AS: The issue with the paramilitary force, specifically the RSF, is its classification as a militia involved in atrocities in Darfur, where it has been implicated in acts of terror, international war crimes, and crimes against humanity. Some members were indicted for these crimes during al-Bashir’s rule. The RSF was established under the Bashir regime—not by the military—with the purpose of protecting the regime’s interests in Darfur. The RSF are essentially a continuation of the Janjaweed militia, which was first mobilized and recruited in the early 2000s by the Sudanese government under Omar al-Bashir. Al-Bashir deployed these Janjaweed militias, often referred to as ‘devils on horseback’, to suppress the rebellion in Darfur led by the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM). The regime armed and supported the Janjaweed, facilitating their violent attacks on non-Arab ethnic groups in the region. Al-Bashir’s use of the Janjaweed reflected a pattern from the 1990s, when he relied on militias like the Murahileen to fight in South Sudan, Kordofan, and the Nuba Mountains. During that period, tribal militias such as the Fursan were also deployed to crush the brief insurgency led by Daud Bolad in Darfur.
In 2017, a law formalized the RSF’s status, requiring it to report directly to the President Al Bashir but placing it under military command during emergencies. However, after the 2019 transition, Hemedti successfully removed this restriction, granting the RSF independence in emergencies. With no president in place and the head of the Sovereignty Council also leading the military, this further complicated the RSF’s role and contributed to its refusal to integrate into the military.
In negotiations prior to the eruption of the conflict on 15 April 2023, there was an agreement that the RSF should integrate into the military within a shortened timeframe. While the RSF initially proposed nearly 20 years for this process, later reducing it to 10 years, the armed forces pressed for reintegration within a maximum of two years. This disagreement intensified tensions between the SAF and the RSF. Furthermore, the post-April 15 atrocities reveal that the RSF has never operated as a disciplined paramilitary force but rather continues to function and recruit as a militia.
CJLPA: Because its history is from Janjaweed?
AS: Yeah, and still is referred to like that by the Sudanese people, they call it Janjaweed.
CJLPA: In the transitional period, were these issues discussed between the paramilitary, the military, and the civilians?
AS: There were no productive or constructive discussions specifically focused on how to address the role of the RSF. Instead, most discussions centred on the broader objective of unifying Sudan’s military forces and reducing the number of armed groups operating independently across the country. This effort included integrating various military groups that had joined the transitional government under the terms of the 2020 Juba Peace Agreement, which aimed to bring numerous armed movements, primarily from Darfur, South Kordofan, and Blue Nile, into the formal political and military framework.
However, despite the commitment to a unified military structure, the discussions often overlooked the unique position of the RSF. Unlike other armed groups entering the transitional process, the RSF did not see itself as merely another faction to be incorporated or subordinated within the national army. Instead, it viewed itself as an equal entity, operating independently and wielding significant military and economic influence. This self-perception set the RSF apart and led to increased tension, as it resisted any attempts at integration under traditional military command.
The RSF’s autonomous stance posed a significant obstacle to military reform efforts. While other groups entering the transitional government under the Juba Peace Agreement were more willing to engage in integration and restructuring, the RSF’s perception of itself as an equal, rather than a subordinate, force hindered meaningful progress towards a unified national military. This dynamic underscored the difficulty of achieving true military cohesion in Sudan, as the RSF’s substantial autonomy and influence remained a point of contention, complicating the broader objectives of peace and stability in the country.
CJLPA: During the 2019 protests, there were numerous human rights abuses, including stories of people being thrown into the Nile and used as speed bumps. As a constitutional lawyer, how do you address the immediate human rights concerns and integrate laws and statutes that protect human rights and property?
AS: This consistently brings us back to the question of accountability—how justice is pursued, the practicality of immunity, and whether it allows impunity to persist while addressing past grievances. This touches on the concept of ‘never again’ and the role of the judicial system. For instance, consider the massacre that occurred when security forces violently broke into the sit-in, resulting in the deaths of over 200 people, some burned and others missing. In response, a fact-finding mission—the Sudanese Fact-Finding Mission—was established under the 2019 Constitutional Charter with the mandate to investigate these atrocities and submit a report to the Prime Minister within six months. However, the mission took more than two years, with multiple extensions of its mandate until it was ultimately disrupted by the October 2021 coup.
This prolonged delay raises serious questions about the effectiveness of such missions during transitional periods after dictatorships, where known perpetrators and political agreements can complicate the pursuit of justice.
If a fact-finding mission fails to assign responsibility and accountability, what purpose does it truly serve? The 2019 Constitutional Charter itself included provisions for human rights protections. Specifically, it mandated the formation of a national, independent investigation committee, with optional African support as assessed necessary, to conduct a thorough, transparent investigation into the violations committed on 3 June 2019, as well as other incidents involving abuses against both civilian and military citizens. This mission was intended to investigate the massacre, yet it never delivered a final report. For justice to be achieved regarding human rights violations, the state must act with sincerity and commitment, either prosecuting these cases domestically or referring them to another body. Despite the transitional government’s cooperation improving after the regime change, no one has been handed over to the ICC, highlighting the persistent challenge that having constitutional provisions does not necessarily lead to accountability.
International actors have a vested interest in the stability of the Horn of Africa, as conflict in Sudan could lead to regional instability or even collapse, affecting neighbouring states like Chad, the Central African Republic, Libya, Ethiopia, and Eritrea—all potential flashpoints. Therefore, it is crucial for international actors to intervene with caution and constructively to foster stability. Resolving the situation will require a commitment from Sudanese civilian and military factions to collaborate, though this is challenging given the prevailing desire for military dominance among various factions. While I don’t have a specific proposal for the international community, I believe they must engage transparently with all stakeholders in Sudan to work toward a sustainable resolution.
CJLPA: Could you explain the contents of the constitutional charter, particularly concerning human rights, issues related to the courts, and mechanisms for holding individuals accountable?
AS: Sudan’s response was largely symbolic during the transition in 2019, a form of window dressing intended to calm public outcry in the moment. The political agreement that paved the way for the 2019 Constitutional Charter aimed to appease victims and their families, signalling that they were serious about accountability, but their actions suggested otherwise. This reflected a lack of political will—not only on the part of the military but also among civilian leaders. Civilians were part of the government for the first two years and played a significant role in many decisions, while the military and the RSF also shared in governance. There seemed to be a mentality of ‘let us govern and forget about accountability’. Attempts to address these issues through transitional justice ultimately fell short.
As a lawyer, I believe that well-crafted provisions alone are not enough to ensure they will be enforced or functional within the system. Justice and accountability require a coordinated system in which the executive, judiciary, and legislature work together; no single branch can achieve these goals on its own.
CJLPA: You are suggesting that achieving transitional justice may be impossible given the current circumstances. Even after addressing the issues stemming from this conflict, there remain challenges in upholding transitional justice.
AS: Consider the case of Yugoslavia: individuals implicated in crimes were handed over to a hybrid tribunal and were never tried in their own countries. This is a common scenario, as regimes often lack interest in prosecuting these individuals due to their own involvement or complicity. For those within such forces—even if not currently engaged in criminal acts—the prospect of facing consequences in the future can be unsettling, creating a cycle where accountability is evaded. This is why an international mechanism is essential.
While a fact-finding mission may be launched, its mandate typically centres on recommendations rather than indictments, resulting in reports rather than enforceable actions. Ultimately, effective justice requires courts with the power to act. Yet even with established courts, enforcement depends heavily on state cooperation. The ICC’s experience in Africa illustrates this challenge: without dedicated law enforcement, these courts rely on state participation, which can be withheld if regimes feel threatened. Today it may be Sudan; tomorrow, it could be another nation facing similar challenges. This dynamic underscores the need for international accountability structures that can operate independently of complicit states.
CJLPA: Going into the future, the expectations and hopes of the Sudanese people are that this war will come to an end as soon as possible. How do you envision constitutional principles playing a role in resolving the crisis in Sudan?
AS: This brings us back to a foundational issue we discussed earlier: distinguishing between constitutionalism—a set of ideas, attitudes, and behaviours that uphold democratic principles—and the constitution itself, the supreme political-legal document. It’s also crucial to differentiate between the constitution’s text and how its provisions are enacted or neglected. Building institutions that uphold constitutional norms is essential, yet it’s a continuous process, aimed at establishing a judiciary, cabinet, and executive that maintain a true balance of powers—something that has yet to be fully achieved in Sudan.
A constitution should represent not just specific groups but the entire nation, taking into account diverse ideologies, religions, and Sudan’s rich cultural diversity. Sudan has never engaged in a comprehensive exercise to openly discuss institutional frameworks, address collective issues, and create a document reflecting national expectations for governance. The 2019 Constitutional Charter, established under the civilian government, was later amended in ways that undermined its original principles. This breach of the 2019 framework underscores the need for a more robust process.
There is no doubt the future likely calls for political dialogue culminating in a constitutional conference, a complex process involving multiple phases beyond simply drafting a document. Constitution-making requires exploration, drawing from extensive literature and global experiences, to craft a framework that suits Sudan’s unique context. This approach must honor the diversity of Sudanese society and embrace its multi-ethnic culture and identity, creating a foundation that genuinely represents all Sudanese people.
CJLPA: Reflecting on the current stalemate, how can the deadlock be broken and what constitutional reforms would you propose going forward? So as not to have a repeat of many cycles of conflicts.
AS: Any constitutional arrangement in Sudan must clearly define the military’s role and strictly limit its involvement in political affairs. There is no place for the proliferation of separate armed forces, as this only exacerbates arms control challenges. Sudan’s top priority should be establishing a single, unified army. Whether you agree or disagree that this army needs reform is another matter. Once consensus is reached on unification, the reform process can follow.
Safeguards are also essential to prevent the military from interfering in the day-to-day political affairs of the state. However, this process must go beyond knee-jerk responses or temporary peace agreements. Some mistakenly view the conflict as a simple power struggle between Burhan and Hemedti, but it’s far more complex. It is a conflict embedded within the state itself, involving different factions within the transitional process, some of which actively resist the transition. Ultimately, this is not merely a struggle within the military but a challenge facing the entire state apparatus. The Sudanese people are aware of this complexity, and reducing the conflict to two individuals oversimplifies the issue. Such a narrow view risks superficial interventions that fail to address the deeper, structural issues at play.
CJLPA: What is the way forward?
AS: The path forward requires that we, as Sudanese, persist in our struggle to reclaim control of our nation and build a democratic future. We deserve a civilian-led government, stability, prosperity, and sustainable economic growth—and we have the capacity to achieve it if given the chance. Ending the war is crucial, but addressing and eliminating the root causes of the conflict is even more essential to prevent a repeat of history. We cannot afford to overlook these foundational issues or merely push them aside; genuine progress demands confronting them head-on for a lasting peace.
CJLPA: In 2021, you penned an article describing ‘Three scenarios for post-coup Sudan’: to ‘continue down the path which the military set out and normalise the coup’; to ‘reverse the coup and return to the status quo before October 25’; or to ‘see all stakeholders involved agree on a peaceful political settlement’.[2] Looking at the current conflict, would you still go by them or would you even add more scenarios?
AS: I feel that we’re facing a situation far more severe than the coup—it’s now a prolonged assault on the state by the RSF. This is not to absolve the military; they have their own share of responsibility in this crisis. But as I look at the current scenarios, I fear we are on the brink of a civil war. I genuinely hope we don’t descend into a full-scale conflict. We need to take a hard, honest look at how we arrived here. What did we do? Where did we go wrong as civilians? We played a part by appointing individuals unfit for the executive branch and by failing to hold the military accountable when we should have. In some ways, we contributed to this situation, too—it’s not solely the military’s fault. We share in the responsibility.
It’s crucial for us to reflect on our actions, to consider what we could have done differently to avoid this crisis. This reflection is incredibly challenging and emotionally heavy. We have people scattered across the region and the world, and the weight of responsibility is immense for all of us. Facing the brutal realities of rape, gender-based violence, and extrajudicial killings is excruciating, as is the thought of never seeing our loved ones again. It’s a burden that is profoundly difficult to bear, yet it’s a reality we must confront if we are to rebuild our nation.
CJLPA: I am deeply sorry about the situation back home. Today, my main takeaway is centred around constitutionalism. We must prioritise the establishment of institutions that operate on principles rather than individuals, ensuring their durability over time. The military should not be involved in any aspect of governance except for national defence. Many thanks for speaking to us today.
This interview was conducted by Solomon Njombai, Legal Researcher at CJLPA. Solomon, an Advocate of the High Court of Kenya, holds a Master of Arts degree in International Relations and an LL.M in Energy Law. His primary focus lies in comprehending how energy intertwines with global issues and how it drives interactions between states on a global scale
[1] Abdelkhalig Shaib, ‘Is Sudan on the brink of another civil war?’ (Al Jazeera, 27 October 2013) <https://www.aljazeera.com/opinions/2013/10/27/is-sudan-on-the-brink-of-another-civil-war> accessed 1 August 2024.
[2] Abdelkhalig Shaib, ‘Three scenarios for post-coup Sudan’ (Al Jazeera, 9 November 2021) <https://www.aljazeera.com/opinions/2021/11/9/three-scenarios-for-post-coup-sudan> accessed 1 August 2024.