Between Coups and Election

Between Coups and Election:
Constitutional Engineering and Military Entrenchment in Sudan

Hager Ali is a Doctoral Researcher at the GIGA Institute for Middle East Studies in Hamburg, Germany.
Salah Ben Hammou is a Ph.D. student in Security Studies at the University of Central Florida, US.
Jonathan M. Powell is an Associate Professor of Political Science at the University of Central Florida, US.

Ali, Hager; Ben Hammou, Salah; Powell, Jonathan (2022) Between Coups and Election: Constitutional Engineering and Military Entrenchment in Sudan, Sage Publications, DOI: 10.1177/00020397221136.

ABSTRACT
This article investigates how armies re-entrench their power after thwarting democratic transitions. After the Sudanese military staged a coup in October 2021 and altered the transitional constitution, coup leader Abdelfattah al-Burhan announced the military’s withdrawal in July 2022. We argue that these constitutional changes leveraged existing institutions in the military’s favor to retain its influence over Sudanese governance. Using empirical evidence from Sudan’s previous military takeovers to evaluate the post-coup constitutional engineering, the analysis finds that military control over the electoral commission, as well as decentralization, will be determining factors moving forward. The timeframe between an anti-democratic coup and subsequent elections should be examined more carefully. Entrenching military power through elections requires a policy set up in advance, usually undertaken in this period. Thus, we provide key insights into how armies incrementally consolidate their power without radically overhauling existing institutions.
Keywords: Sudan, Coups and Election, Constitutional Engineering, Military Entrenchment

How do armies re-entrench their power after thwarting democratic transitions? Following a successful military coup, armed forces face the challenge of balancing a desired continuation or improvement of their interests with establishing a post-coup regime that is viewed as legitimate. Post-coup elections offer an important mechanism to provide ex-post legitimacy.[1] Militaries typically rule by decree in the immediate aftermath of coups but increasingly pursue preferential legislative changes and the electoral success of preferred parties to enshrine their long-term strategic interests. Transitional processes – when institutions have yet to consolidate – provide a window of opportunity for military leaders to be especially active, particularly when their scope of authority is threatened by civilian interests.

Such a conflict occurred during Sudan’s disrupted transition after the 2019 ouster of President Omar al-Bashir. Though the coup prompted optimism that Sudan could witness a bona fide democratic transition, the Sudanese military’s October 2021 coup effectively halted democratization. The coup’s leader, General Abdel Fattah al-Burhan, called the intervention a ‘corrective revolution’ with the purpose to safeguard stability.[2] After the coup was met with resistance and the resignation of several ministers, al-Burhan reinstated the previously jailed civilian Prime Minister Abdallah Hamdok.[3] The reunion would be short-lived, however, as January 2022 saw Hamdok officially resign.[4]

In early July 2022, al-Burhan publicly announced the military’s intention to formally withdraw from the political landscape.[5] Observers were quick to label the move as “a ruse,” pointing to the military’s intention to form a “Supreme Council” with unspecified powers and its persistent ties to Bashir-era elites and their affiliates.[6] Since the announcement, anti-military protests persisted and there have been few signs of a genuine military withdrawal. While presidential and general elections are scheduled for 2023, the future of Sudan’s future political trajectory is precarious.

This article assesses the behavior of the military during the transition process in post-coup Sudan. We specifically take note of the military’s suspension of several constitutional provisions after taking power in October 2021. We argue that these different suspensions provide the coup leaders with the framework to politically entrench themselves despite their claims of a withdrawal. The suspensions maintain centralized administration over the country’s resource-rich periphery and provide the coup leaders with full access to the electoral commission. The electoral commission is a particularly valuable tool, providing the authority to exclude political rivals while privileging affiliates in future elections. In short, our analysis sheds light on military leaders’ common objective to entrench themselves through gradual institutional and legal changes even amid assurances of a political retreat.

We use qualitative evidence from Sudan’s post-coup constitutional engineering and insights from its historical experience to support our argument, suggesting future paths of research for scholars of coups and democratization. It is well established that militaries consolidate their takeovers through new constitutions, the appointment of new figureheads, the co-optation or foundation of political parties, and elections.[7] Previous investigations of democratization, particularly studies focusing on post-coup environments, consistently point to the continuing threat that ancien elites can pose to transitions.[8] However, these studies almost exclusively investigated the issue in a zero-sum fashion, focusing on successful or failed transitions to democracy as an endpoint. We instead consider the process by focusing on the importance of gradual policy shifts rather than the outcome alone.

We proceed as follows. First, we review existing research on military vetoing transitions and re-installing autocracies using constitutions. Then we gauge how the suspension of specific provisions in Sudan’s 2019 Transitional Constitution preserves the military’s influence on policy-making and future elections. By reconfiguring the balance of civilian versus military actors in the Legislative Council and the Cabinet without upending the political system altogether, we find that the military can leverage existing rules in its favor. As the Forces of Freedom and Change’s (FFC’s) influence in the government’s branches was eliminated, al-Burhan gained unfettered access to the electoral commission, which jeopardizes the quality of future elections and administrative decentralization.

Understanding Military Entrenchment

Significant research examines the threat that militaries can pose to democratic transitions.[9] These threats often manifest as coups, demonstrated by Sudan’s October 2021 intervention. Because democratization threatens military elites’ wealth, status, and even physical safety, these actors often pursue coups to veto transitions. This is especially the case when civilians signal their intention to target former elites and their assets.[10]

While coups are dramatic and often command considerable attention, the scholarship almost invariably overlooks the broader process militaries use to preserve authoritarianism. Insights from more general post-coup behaviors and cases of military entrenchment in other contexts provide some hints. Examining all post-1989 coups[11] finds that half of these cases saw coup leaders maintain political power through elections. In some cases, coup leaders directly participated in and won the elections while in others, coup leaders’ proxies achieved victory. Grewal and Kureshi[12]find that coup leaders use elections to legitimize their rule, especially when tied to US military aid. These findings echo Houngnikpo’s[13] pessimistic take on how African armies seemingly withdraw after coups, only to hold elections and win them. These tactics follow a similar logic as those that militaries use to ensure their prerogatives during a political transition. For example, Self [14]argues that militaries often set the boundaries on contestation and popular sovereignty during democratization if they lack a powerful civilian ally. Similarly, it is well documented that during Latin America’s democratization, militaries actively influenced and tilted transitional rules in their favor.[15]

We similarly argue that coup leaders can entrench their power through constitutions and policy-making. Given the permanent nature of constitutions, provisions included or excluded by militaries are highly indicative of their long-term interests, which entail ensuring continued electoral success for ex-post legitimacy. Yet, existing literature focuses on actors participating in the process over policy outcomes. Several studies detail which parties and elites were interacting during the constitution-making process in Tunisia, Libya, and Egypt after the Arab Spring.[16] Research on constitutional engineering in Southeast Asia centers on the involvement of militaries in the process.[17] Juntas in Thailand and Myanmar oversaw constitutional drafts to retain control over post-transitional governance.[18] Militaries can give themselves veto powers over constitutional amendments, personnel decisions, and budgetary allocations. But policies typically used to achieve these objectives remain overlooked. Studies on military behavior in the forerun of elections are likewise scant, even though constitutional reforms can have adverse impacts on electoral integrity. Militaries may use constitutional provisions to sabotage opposing candidates or parties.[19] Likewise, they may instigate electoral reforms to divide and institutionally uproot their electoral competition in the long term.[20]

Taken together, these studies suggest that Sudan’s coup leaders possess several tools to preserve their influence on policy-making despite their formal withdrawal from direct power. Changes to the transitional constitution eliminated civilian influence on appointments to the Sovereignty Council (SC) and the Cabinet. Moreover, the following analysis suggests that the constitutional changes empowered the military to centralize control over the electoral process and key administrative functions in the periphery. These measures would both enshrine the military’s control over the political landscape while reinforcing long-standing socio-political dynamics between the center and the periphery.

The 2019 Transitional Constitution and Its Suspended Provisions

A new incumbent can set the terms for drafting a permanent constitution, and the first elections typically select which parties or societal groups can participate in drafting a permanent constitution. Historically, Sudan’s constitution-making was closely intertwined with peacebuilding processes after civil wars because it revolved around inclusivity in policy making. Both of Sudan’s civil wars were driven by demands for administrative decentralization from the central government in Khartoum.[21] The peace agreements established the parameters for political participation and representation of the South and other marginalized ethnoreligious groups in the periphery.[22] For instance, following the first civil war, the 1972 Addis Ababa Agreement[23] regulated the self-governance of the southern provinces Equatoria, Greater Upper Nile, and Bahr El Ghazal (today’s South Sudan) vis-a-vis the central government in Khartoum, creating the foundation for the first permanent constitution in 1973.

The 1973 constitution remained in place until al-Bashir’s 1989 military coup, where he used the constitution-making process during the second civil war to specifically exclude the South from political representation in the center.[24] Though al-Bashir’s power was largely buttressed by the National Congress Party, the armed forces and militia active in the South were dominated by Arab Muslims.[25] Because the 1998 constitution was widely contested for its lack of ethnoreligious inclusivity, another interim constitution was drafted in 2005 under international observation. Like its predecessors, it created a framework for the political participation and autonomy of the periphery after the war ended in 2005.[26] With al-Bashir’s 2019 ouster, the 2005 interim constitution was also suspended.[27]

Sudan’s Transitional Constitution (2019) initially served as a political agreement between the FFC and the Transitional Military Council (TMC) (Article 71). After al-Bashir’s 2019 ouster, Sudan’s officers attempted to control the post-coup government. The FFC’s continued pressure led the officers to share power with the coalition as they navigated the country’s transition to democratic rule. The transitional period itself was scheduled to be thirty-nine months (Article 7.1) wherein the SC was to be chaired by a military member for the first twenty-one months before civilians take over until the 2023 elections (Article 11.3). The SC was set at eleven members, five military members, five civilians, and one appointed by the FFC and the TMC (Article 11.2). To issue decisions, the SC required a two-thirds majority or consensus (Article 12.3). The SC moreover appoints chairmen and members of the Peace Commission, Borders Commission, Commission for Constitution-Making, and the Constitutional Convention, as well as the Electoral Commission (Article 39).

Sudan’s Interim Cabinet consists of a maximum of twenty ministers and the prime minister (Article 15.1), with the latter selected by the FFC. The prime minister in turn appoints members of the cabinet from a list provided by the FFC (Article 12a, b). The Cabinet can form independent national commissions (Article 16.5-8), request the declaration of a State of Emergency (Article 12.1), and carry out tasks of the transitional period laid out by the FFC (Article 16.1). Until a Transitional Legislative Council (TLC) is formed, the SC and the Cabinet jointly exercise the powers of the TLC (Article 25.3). Decisions in the TLC are taken by a simple majority, and its term expires with the end of the transitional period (Articles 25.4 and 25.5). Two-thirds of the 300 TLC members will be nominated by the FFC and the rest by other political actors (Article 24.3). Members of the previous regime under al-Bashir are explicitly prohibited from participating in the TLC (Article 24.1). The military suspended specifically provision Article 24.3 on the distribution of members of the TLC.

Lastly, the military and Rapid Support Forces are both subjugated to the Supreme Commander of the Armed Forces and the SC (Article 35.1). The military nominates the ministers of defense and interior (Article 15.1), which are then confirmed by the SC. The TMC itself will be dissolved after SC members swear their constitutional oath (Article 72).

Table 1 shows the constitutional provisions suspended after the coup. Most of these provisions focused on the composition of the SC, the Cabinet, and the Legislative Council.[28] The fundamental structure of Sudan’s bicameral system remains in place, while the distribution of civilian members in both chambers and their authority were changed in favor of the army.

Table 1. Suspended Constitutional Provisions After Sudan’s October 25 Coup.

	Suspended constitutional provisions
Transitional period	Article 71: Constitutional provision is derived from a political agreement between FFC and TMC. Article 72: TMC will be dissolved after SC members swear a constitutional oath.
Role of SC	Article 11: SC consists of eleven members (five civilians, five military members, and one civilian member appointed by FFC and TMC). In the first twenty-one months, SC is chaired by a military member, and in the remaining eighteen months chaired by a civilian member.
Cabinet and prime minister	Article 12: FFC selects the prime minister. The prime minister selects cabinet members from a list provided by the FFC. SC appoints heads of regions and governors of provinces. SC also declares a state of emergency at the request of the cabinet. To issue decisions, the SC needs consensus or a two-thirds majority of its members. Article 15: Cabinet consists of a prime minister selected by the FFC and appointed by the SC, and a maximum of twenty ministers appointed from a list provided by the FFC. Article 16: The cabinet carries out tasks of the transitional period according to the program laid out by the FFC, forms independent national commissions, appoints and dismisses civil service, supervises ministries, and law enforcement, and regulates its activities.
TLC	Article 24: TLC consists of 300 members and cannot be dissolved. Political forces of the former regime are prohibited from participation in TLC. Article 24.3: 67 percent of members in TLC are selected by the FFC, other 33 percent are selected from non-signatories of the FFC’s Declaration of Freedom and Change. Appointments and percentages to be negotiated between FFC and military (only paragraph 3 of Article 24 was suspended)

Source: Compiled by authors from the Constitutional Declaration of Sudan (Constitution of Sudan, 2019).
FFC=Forces of Freedom and Change; SC=Sovereignty Council; TLC=Transitional Legislative Council; TMC=Transitional Military Council.

By suspending Articles 71 and 72, the military formally withdrew from the consensus with the FFC and voided the agreed-upon dissolution of the TMC. The suspension of Articles 11 and 12 targets the allocation of seats to civilian and military members in the SC, its leadership, and decision-making power. The military is not bound by the mandated transitional timeframe of thirty-nine months anymore. It can now tilt the civil–military balance of SC members in its favor, as clause 11.2-3 prescribed six civilian members to five military members. Article 12.1a–h endowed the FFC with the authority to appoint the prime minister and to confirm provincial and state governors, the supreme judicial council, and its chief justices, as well as the auditor-general. Moreover, the repeal of Article 12 removed the two-thirds majority requirement for promulgating States of emergency.

In conjunction with Articles 15 and 16, the repeal of Article 12 effectively eliminates the FFC’s sphere of influence in the cabinet and the two-thirds majority requirement in legislative decision-making within Article 12.3. The canceled Article 24.3 concerns the allocation of parliamentary seats, of which two-thirds were reserved for members selected by the FFC, further curtailing the FFC’s role in legislation. The implications of these changes, however, extend past the main branches of government.

Leveraging Existing Rules: Key Implications for the Next Elections

With specific constitutional provisions suspended, Sudan’s officers can use existing institutions to pursue their long-term objectives. To that end, the nature of the electoral system is of strategic importance. Unlike constitutions, electoral laws can be adjusted more frequently to serve an incumbent’s short-term electoral goals.[29] Coup leaders may also change the electoral system throughout their takeovers. Introducing – or abolishing – proportional representation (PR) systems change how sociocultural differences are articulated in the political arena.[30] That makes tilting the country’s electoral system and decentralization in the military’s favor a high priority because it ensures electoral victory.

Previous coup leaders established this precedent. Sudan’s first coup in 1958 saw General Ibrahim Abboud upend Sudan’s sectarian party system, though it would be reinstated after Abboud’s fall in 1964.[31] After the 1969 coup, Jaafar Nimeiri replaced the multi-party system with a single-party system, ruling through the Sudan Socialist Union until 1985.[32] Another multi-party system re-emerged until the 1989 coup’s leaders – led by Omar al-Bashir – abolished it once again (p. 161). During al-Bashir’s regime, Sudan had the first-past-the-post system for parliamentary elections until a segmented list-proportional system replaced it ahead of the 2010 multi-party elections.[33] The new PR system only cemented al-Bashir’s political power because electoral competition fragmented the opposition.[34] These examples suggest that control over the electoral system will be instrumental in consolidating the military’s political presence and curtailing the periphery’s chances at adequate representation.

With the FFC’s reserved representation eliminated, the Sudanese military gained unfettered access to the electoral commission, as the SC – and by extension, al-Burhan – can appoint chairs and members of the independent Elections Commission (Article 39.3d in Transitional Constitution). Under the previous agreement’s terms, chairmen and members of the SC were barred from running in elections and pursuing commercial activities (Articles 19 and 20). Direct control over the electoral commission, however, enables amendments concerning electoral competition and nomination rules for future candidates. This means that the military figures can run for office while barring their rivals’ participation altogether.

Control over the electoral commission has further implications for Sudan’s socio-political dynamics. Under the National Elections Act of 2008, the Electoral Commission determined geographic constituencies, the electoral rules for state governors, and the criteria to register for elections. Citizens could only register for elections if they have stayed in one constituency for more than three months, and only if they have not been registered in any other constituency (National Elections Act 2008a, Article 22.2). In total, 60 percent of the National Assembly members were to represent geographic constituencies, with 25 percent of the female National Assembly members elected from separate closed party lists (National Elections Act 2008a, Article 2.1-2). Local representation is a historically contentious issue in Sudanese politics. Ethnoreligious divisions run parallel to a salient urban–rural cleavage wherein the predominantly Arab Muslim population is concentrated in the wealthier center, while the ethnically diverse periphery is politically and economically marginalized, further reinforcing societal fractures.[35] Political representation in Khartoum and decentralization were the driving factors in the conflicts of Darfur, Blue Nile, and Southern Kordofan. Against this background, the prospect of proportional political representation – a core objective of previous peace treaties and the Sudanese Revolution – threatens the military’s monopoly on power in Khartoum given its ties to the dominant Arab Muslim center.

Decentralization as the Military’s Conflict of Interest

In conjunction with electoral reforms, past military coups also centralized land governance in Sudan’s periphery, which disenfranchised local ethnoreligious minorities. Under colonial rule, the British initially decentralized the administration of Sudan by exploiting existing tribal and local networks, the so-called “Native Administration”.[36] Jaafar Nimeiri’s military regime abolished the “Native Administration,” introducing the People’s Local Government Act of 1971. The newly formed local councils were linked to the Sudanese Socialist Union, the only legal party at that time, and diverted political power to the center while disempowering tribes and traditional structures.[37] At the same time, the central government, instead of municipalities, controlled the administration and distribution of revenues from natural resources.[38]

With regulations on future constitution-making, the Juba Agreement (2020) and transitional constitution mandate some administrative decentralization for the post-transitional political agenda. The 2019 Transitional Constitution currently segments Sudan into federal, regional, or provincial and local levels of administration (Article 9.1a–c). But the transitional constitution also suggests re-evaluating geographic demarcation and distribution of powers between federal, regional, and local levels (Article 8.1-3). Governance and relationships between centers, provinces/regions, land distribution, and the fair allocation of power and wealth are postponed to “future Comprehensive Peace Issues” (Article 69f–h). Likewise, decisions on the administrative status of provinces and regions affected by the war were deferred to Comprehensive Peace Issues (Article 69m).

Since natural resources presently constitute Sudan’s main source of state revenue, retaining control over resource-rich areas in the country’s periphery is of unprecedented urgency to both military power and state finance. Post-coup aid cuts mean Sudan will more heavily rely on revenues from natural resources, including gold exports.[39] These resources are mined in the periphery – in Darfur and Blue Nile – while the central government oversees their administration. Hence, a redistribution of power to local and municipal levels coupled with a PR system would give non-Arab minorities in the economically marginalized periphery substantial political leverage in Khartoum and control over key resources. Land administration and decentralization will therefore remain disputed issues in Sudan’s post-coup transition. Under al-Bashir, the electoral commission presided over the geographic demarcation of constituencies within state borders through the National Elections Act of 2008.[40] The future electoral commission under al-Burhan could similarly hold that authority.

Conclusion and Outlook

This article sheds light on two important issues. First, our findings suggest that military behavior immediately after thwarting a democratic transition provides key insights into the gradual executive and judicial steps toward consolidation. Fixation of the general outcome obscures these incremental changes. Second, our examination reveals key insights into the short- and long-term objectives of Sudan’s coup leaders. In the short term, the coup leaders’ suspension of several constitutional provisions displaced the FFC, allowing officers to use existing institutions to pursue objectives such as maintaining centralized institutions in the periphery.

In other words, the political and legal changes undertaken through the coup do not constitute a full regime breakdown. Instead, they are more akin to a cabinet reshuffle with many of the same institutions left intact. Reconfiguring the civil–military balance within existing structures enables al-Burhan to revise electoral laws ahead of the next election, using measures such as control over the electoral commission. Completely abolishing the Transitional Constitution was unnecessary, as al-Burhan can exert much more influence on engineering a permanent constitution after the next elections by controlling the independent commission for constitution-making.

Proportional political representation and decentralized administration by the country’s marginalized periphery drove demands for previous peacebuilding and democratization efforts, including the Comprehensive Peace Agreement. Both objectives, however, directly conflict with the military’s desire for a centralized monopoly of power and control over strategically significant territories in the periphery. The military finances itself through commercial activities involving natural resources from these territories, which have become even more critical given the cancellation of foreign aid. The enduring economic crisis thus directly affects the Sudanese military’s resources, fuelling its pursuit for control.

Similarly, Sudan’s previous military rulers changed the electoral system and revised land reforms to maintain their control. Past military rule favored either single-party systems or first-past-the-post systems. If multi-party elections were introduced, such reforms only served to further divide political opponents. Likely, the electoral system and land administration will once again be central to the consolidation of military rule in Sudan.

Ultimately, these findings show that anchoring military power through electoral competition requires a specific policy set up long before the campaigning period to ensure a favorable outcome in post-coup elections and to re-entrench military hegemony. Our contribution reveals that even seemingly tame policy changes can fortify military rule against civilian challenges. To that end, all the necessary institutions and laws are already in place for Sudan’s coup leaders.

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