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Jurist: ‘Sharia aspects of Sudan’s Constitutional Declaration no cause for alarm’

August 8 - 2019 KHARTOUM
Lawyer Nabil Adib (File photo: EU Delegation to Sudan)
Lawyer Nabil Adib (File photo: EU Delegation to Sudan)

Prominent jurist and human rights lawyer Nabil Adib says that he is not afraid of religious influences on the coming civilian state in Sudan, heralded by the signing of the Constitutional Declaration on Sunday.

Referring to the presence of some religious phrases in some provisions of the Constitutional Declaration, especially with regard to crimes of retribution and hudood (punishments mandated under Islamic Sharia law), Adib said in an interview with Radio Dabanga that the problems that may result from some hudood crimes, such as adultery, can be abolished by the new Parliament.

The new legislature can amend the punishment in the articles on these controversial issues. He explained in this context that the Constitutional Declaration guarantees all citizens their rights, which should not be diminished because of religion, race, gender or any form of discrimination. The rights for each citizen are based on citizenship rather than any other factor.

‘The new Parliament will have all the powers to issue legislation and amend the existing legislation’ – Nabil Adib

He told Radio Dabanga that the new Parliament, despite the fact that it is not elected, will have all the powers to issue legislation and amend the existing legislation.

Complicated procedures

The Constitutional Declaration agreed upon has been widely criticised by the Sudanese Revolutionary Front (SRF, a coalition of three armed movements), the Communist Party of Sudan and many jurists, some of whom have pointed to the difficulty of later amending the Constitutional Declaration and talked about complicated procedures for any amendment.

In this regard, Adib said that the document was reached by consensus between the Transitional Military Council (TMC) and the FFC representing the Sudanese people.

“The document took into account that there will be many changes that will happen after the peace agreement, which necessitates amendments to the document such as the issue of decentralisation and regional and state divisions.

‘This is a Constitutional Declaration and not a constitution’ – Nabil Adib

“This is a Constitutional Declaration and not a constitution. Therefore, it always shows what needs to be added or changed, which will happen in reality between the various legislative, executive and sovereign bodies, noting that with the final signing of the Constitutional Declaration, the TMC will disappear and will not exist and this creates a new reality.”

He emphasised the adequacy of this document to meet the practical requirements of the transition period. Regarding the signing of the Constitutional Declaration, the lawyer said that it was necessary to agree on its contents [in principle] at this stage because the country has been suffering from a constitutional vacuum since April 11, which led to the creation of a situation where all the authority is concentrated in the hands of the military junta, which is unacceptable.

He noted in the interview with Radio Dabanga that the previous uprisings of 1964 and 1985 resulted in constitutions with amendments to previous versions of the constitution in nature.

He added that the armed movements must be assured that a constitution will not be imposed without a comprehensive peace agreement as happened before.

Regarding the criticism that the Constitutional Declaration specified some tasks without naming the party that executes them, such as the issue of those dismissed from the military and civil service and the procedures of reconciliation and rehabilitation, Nabil Adib said that the constitution or the document defines the tasks and that the executive authority will carry out such a task.

“If it fails, we have the [independent] judiciary, which is a monitor of power.”

Immunity from prosecution

In response to a question on the subject of immunity, Adib denied that any of the members of the next Sovereign Council enjoy objective immunity that prevent them from being prosecuted.

“The immunity they enjoy according to the agreement is a procedural immunity that acts as a barrier and protects against malicious measures that impede the work.”

The participation of some members of the military junta in the Sovereign Council was rejected by the revolutionaries and many fear that their position in the Council will prevent them from holding them accountable.

According to Adib, the immunity of members of the Sovereign Council can be lifted by the Parliament, a measure that depends on the availability of necessary legal grounds.

“A significant lacking in the Constitutional Declaration has been overlooked, which stipulates the substantive immunity of members of the Legislative Council from any charges related to crimes of opinion related to the sessions in which they participate, such as accusations of defamation, abuse, and other charges that could impede and limit the performance of the parliamentarians.”

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