The Transitional Constitution of the Republic of the Sudan (2005)/PART THREE

PART THREE: THE NATIONAL EXECUTIVE

CHAPTER I : THE NATIONAL EXECUTIVE AND ITS POWERS

Composition of the National Executive

49. The National Executive shall consist of the Presidency of the Republic and the National Council of Ministers.

Powers of the National Executive

50. The National Executive shall exercise the executive powers in Schedules A and D, read together with Schedules E and F herein and the competences conferred upon it by this Constitution.

CHAPTER II : THE PRESIDENCY OF THE REPUBLIC

Composition of the Presidency

51 )1) The Presidency of the Republic shall consist of the President of the Republic and two Vice Presidents.

(2) There shall be partnership and collegial decision-making within the Presidency in order to safeguard stability in the country and implement the Comprehensive Peace Agreement.

The President of The Republic

52 There shall be a President for the Republic of the Sudan to be directly elected by the people in national elections according to the law and the regulations set by the National Elections Commission.

Eligibility for the President of the Republic

53 A candidate for the office of the President of the Republic shall:-

(a) be a Sudanese by birth,

(b) be of sound mind,

(c) be at least forty years of age,

(d) be literate ,

(e) not have been convicted of an offence involving honesty or moral turpitude.

Nomination and Election of the President of the Republic

54 (1) Any eligible voter may nominate whoever he/she deems fit for the office of the President of the Republic; however, the Presidential candidate shall be seconded by a number of eligible voters as specified by law.

(2) The Presidential candidate who wins more than fifty percent of the total votes of the polling electorate shall be the President elect.

(3) Where the percentage mentioned in sub-Article (2) above is not attained, there shall be a run-off election between the two presidential candidates who have obtained the highest number of votes.

Postponement of Elections of the President

55 (1) Where election of the President of the Republic is not possible for any reason, as shall be decided by the National Elections Commission according to the election law, the National Elections Commission shall fix a new date for the elections as soon as practicable, but not later than sixty days from the scheduled election date.

(2) Pending the holding of the postponed elections, the incumbent President of the Republic shall continue as a caretaker President; and his tenure shall be extended until the President elect takes the oath of office.

Oath of the President

56 To assume office, the President of the Republic elect shall take the following oath before the National Legislature:-

“ I……….………….swear by Almighty God, that as the President of the Republic of the Sudan, I shall be faithful and bear true allegiance to the Republic of the Sudan and shall diligently and honestly discharge my duties and responsibilities in a consultative manner to foster the welfare and development of the nation; that I shall obey, preserve and defend the Constitution and abide by the laws of the Republic; and shall protect the sovereignty of the country, promote its unity, consolidate the democratic decentralized system of government and preserve the integrity and dignity of the people of the Sudan; and God is my witness ”.

Tenure of Office of the President of the Republic

57 The tenure of office of the President of the Republic shall be five years, commencing from the date of assumption of office, and the same President may be re-elected for one more term only.

Functions of the President of the Republic

58 (1) The President of the Republic is the Head of the State and Government and represents the will of the people and the authority of the State; he/she shall exercise the powers vested in him/her by this Constitution and the Comprehensive Peace Agreement and shall, without prejudice to the generality of the foregoing, perform the following functions:-

(a) preserve the security of the country and protect its integrity,

(b) supervise the executive constitutional institutions and provide exemplary leadership in public affairs,

(c) appoint holders of constitutional and judicial posts in accordance with the provisions of this Constitution and the law,

(d) preside over the National Council of Ministers,

(e) summon, adjourn or prorogue the National Legislature,

(f) declare war in accordance with this Constitution and the law,

(g) declare and terminate the state of emergency in accordance with the provisions of this Constitution and the law,

(h) initiate constitutional amendments and legislations and assent to laws,

(i) approve death sentences, grant pardon, lift convictions and remit penalties according to this Constitution and the national law,

(j) represent the State in its foreign relations, appoint ambassadors of the State and accept credentials of foreign ambassadors,

(k) direct and supervise the foreign policy of the State and ratify treaties and international agreements with the approval of the National Legislature,

(l) seek the opinion of the Constitutional Court on any matter in connection with the Constitution,

(m) any other functions as may be prescribed by this Constitution or the law.

(2) Notwithstanding sub-Article (1) above, the President of the Republic shall, in respect of the following matters, take decisions with the consent of the First Vice President:

(a) declaration and termination of a state of emergency,

(b) declaration of war,

(c) appointments that the President of the Republic is required to make according to Appendix B1 of the Comprehensive Peace Agreement,

(d) summoning, adjourning or proroguing the National Legislature.

Vacancy of the Office of the President of the Republic

59 The Office of the President of the Republic shall fall vacant in any of the following cases:-

(a) expiry of his/her tenure of office,

(b) death,

(c) mental infirmity or physical incapacity as determined by a resolution of the National Legislature adopted by a three-quarters majority of all members,

(d) impeachment in accordance with the provisions of this Constitution,

(e) submission of his/her resignation to the National Legislature.

Immunity and Impeachment of the President and the First Vice President

60 (1) The President of the Republic and the First Vice President shall be immune from any legal proceedings and shall not be charged or sued in any court of law during their tenure of office.

(2) Notwithstanding sub-Article (1) above, and in case of high treason, gross violation of this Constitution or gross misconduct in relation to State affairs, the President or the First Vice President may be charged before the Constitutional Court upon a resolution passed by three quarters of all members of the National Legislature.

(3) In the event of conviction of the President of the Republic or the First Vice President, in accordance with sub-Article (2) above, he/she shall be deemed to have forfeited his/her office.

Contesting Acts of the President or the Presidency

61 Any person aggrieved by an act of the President of the Republic or the Presidency may contest such act:-

(a) before the Constitutional Court, if the alleged act involves a violation of this Constitution, the Bill of Rights, the decentralized system of government, or the Comprehensive Peace Agreement,

(b) before a competent court of law, if the allegation is based on other legal grounds.

The two Vice Presidents, Assistants and Advisors

62 (1) The elected President of the Republic shall appoint two Vice Presidents, one from Southern Sudan and the other from Northern Sudan. If the elected President is from the North, the position of the First Vice President shall be filled by the person who has been elected to the post of President of Government of Southern Sudan, as the President's appointee to the said position. In the event that a person from the South wins the Presidential elections, the elected President shall appoint the First Vice President from the North upon the recommendation of the party that won the highest number of northern seats in the National Assembly.

(2) The two Vice Presidents shall satisfy the same conditions required for the office of the President of the Republic.

(3) The President of the Republic may appoint assistants and advisors and define their functions and seniorities.

(4) To assume their respective offices, the two Vice Presidents, assistants and advisors shall take before the President of the Republic the same oath taken by the President.

Functions of the two Vice Presidents

63 (1) The First Vice President shall have the following functions:-

(a) act in the absence of the President of the Republic in accordance with the provisions of this Constitution,

(b) membership of the National Council of Ministers,

(c) membership of the National Security Council,

(d) membership of the Presidential Council in the pre-election period,

(e) chairmanship of the Presidential Council in the post election period in the event of the office of the President falling vacant,

(f) any other function or duty that may be assigned to him/her by the President of the Republic.

(2) The Vice President shall have the following functions:-

(a) act in the absence of the President of the Republic and the First Vice President in accordance with the provisions of this Constitution,

(b) membership of the National Council of Ministers,

(c) membership of the Presidential Council and Commander-in-Chief of Sudan Armed Forces should the office of the President of the Republic fall vacant according to Articles 65 and 66 herein,

(d) membership of the National Security Council,

(e) any other function or duty that may be assigned to him/her by the President taking into account the hierarchy within the Presidency.

Vacancy of the Office of the First Vice President

64. Should the office of the First Vice President fall vacant, the President of the Republic shall appoint a new First Vice President in accordance with this Constitution.

CHAPTER III : INTERIM PROVISIONS FOR THE PRESIDENCY OF THE REPUBLIC

The Incumbent President and the First Vice President

65. Prior to the elections that shall be held during the interim period:-

(a) the incumbent President of the Republic, or his successor, shall be the President and Commander-in-Chief of the Sudan Armed Forces in accordance with this Constitution,

(b) the Chairman of the Sudan People’s Liberation Movement, or his successor, shall be the First Vice President and shall at the same time be the President of Government of Southern Sudan and Commander-in-Chief of the Sudan People’s Liberation Army in accordance with this constitution.

Vacancy of the Office of the President before Elections

66. Should the Office of the President of the Republic fall vacant before the elections:-

(a) the functions of the President of the Republic shall be assumed by a Presidential Council comprising the Speaker of the National Assembly and the two Vice Presidents,

(b) the Speaker of the National Assembly shall be chairperson to the Presidential Council,

(c) the Presidential Council shall take its decisions by consensus,

(d) the Vice President shall be Commander-in-Chief of the Sudan Armed Forces,

(e) notwithstanding Article 52 above or any other provision in this Constitution, the Office of the President shall be filled by the nominee of the National Congress Party within two weeks of the date of the occurrence of such vacancy.

Vacancy of the Office of the President after Elections

67. Should the office of the President of the Republic fall vacant after the elections:-

(a) the functions of the President of the Republic shall be assumed by the Presidential Council referred to in Article 66 (a) above,

(b) the First Vice President shall be the chairperson of the Presidential Council,

(c) the Presidential Council shall take its decisions by consensus,

(d) the First Vice President or the Vice President, whoever of them is from the North, shall be the Commander-in-Chief of the Sudan Armed Forces,

(e) the Post of the President of the Republic shall be filled through elections that shall be conducted within sixty days in accordance with Article 52 of this Constitution.

Vacancy of the Office of the First Vice President before Elections

68 Should the office of the First Vice President fall vacant prior to elections, it shall be filled by the nominee of the Sudan People’s Liberation Movement within two weeks of the occurrence of that vacancy.

Interim Provisions for Tenure of Office of the President and the First Vice President

69 (1) Should the outcome of the referendum on self-determination confirm unity, the President of the Republic and the First Vice President shall complete the tenure of their offices.

(2) In the event of a vote for secession by the people of Southern Sudan, the President of the Republic shall continue in office if he/her is from the North; however, if the President is from the South he/she shall be deemed to have resigned and the First Vice President shall assume the office of the President of the Republic to complete the tenure to the next elections.

CHAPTER IV : THE NATIONAL COUNCIL OF MINISTERS

Composition and Competences of the National Council of Ministers

70 (1) The President of the Republic shall, after consultation within the Presidency, appoint the National Council of Ministers.

(2) The President of the Republic and the two Vice Presidents shall be members of the National Council of Ministers.

(3) Without prejudice to the powers vested in the President of the Republic and the Presidency under this Constitution, decisions of the Council of Ministers shall prevail over all other executive decisions.

(4) The National Council of Ministers shall be the national executive authority in the State in accordance with the provisions of this Constitution and the law; its decisions shall be adopted by consensus or by simple majority.

(5) There shall be national State ministers appointed by the President of the Republic, after consultation within the Presidency; they shall assist the national ministers and may act in their absence.

(6) The national State ministers shall take the same oath of office of the national minister.

Oath of the National Minister

71 The national minister shall, upon his/her appointment, assume the functions of his/her office by taking the following oath before the President of the Republic:-

“I ………..………… having been appointed a national minister, do hereby swear by Almighty God that I will at all times be faithful to the Republic of the Sudan; that I will obey, respect, and uphold the Constitution and abide by all laws of the country, loyally defend its independence, promote its unity and the democratic decentralized system of government established by the Constitution, and to faithfully serve the people and the country to the best of my ability; and God is my witness”.

Functions of the National Council of Ministers

72 The National Council of Ministers shall have the following functions:-

(a) planning State policy,

(b) implementation of the Comprehensive Peace Agreement,

(c) initiation of national legislative bills, national budget, international treaties, bilateral and multilateral agreements,

(d) receiving reports about national ministerial performance for review and action,

(e) receiving reports on executive performance of states for purposes of information and coordination, provided that in case of the states of Southern Sudan, reports shall be received through the Government of Southern Sudan,

(f) receiving reports on matters that are concurrent or residual and decides whether it is competent to exercise such power in accordance with Schedules E and F herein. If it so decides, it shall notify the other levels of government of its intention to exercise such power. In case any other level of government objects thereto, a committee shall be set up by the levels concerned to amicably resolve the matter before resorting to the Constitutional Court,

(g) any other functions assigned thereto by the President of the Republic and the law.

Functions of the National Minister

73 (1) The national minister shall be the head of his/her ministry, and his/her decisions shall prevail therein. However, the National Council of Ministers may review such decisions; the President of the Republic may suspend the decision of a national minister pending such review.

(2) The national minister and corresponding ministers of Government of Southern Sudan and states shall collaborate and establish relations among themselves in fulfilling their respective constitutional obligations.

(3) Perform any public or political role and provide leadership in public affairs to achieve the objectives of national policy.

(4) Any other functions or powers assigned by law or delegation.

Collective and Individual Responsibility of National Ministers

74 (1) The national minister shall be answerable to the President of the Republic, the National Council of Ministers and the National Assembly.

(2) The national ministers shall be collectively and individually responsible before the National Assembly for the performance of the National Council of Ministers.

(3) The national minister shall be bound by the decisions of the National Council of Ministers.

Declaration of Wealth and Prohibition of Private Business

75 (1) All executive and legislative constitutional office holders, Justices, and senior civil service officials shall, upon assumption of their offices, make confidential declarations of their assets and liabilities including those of their spouses and children in accordance with the law.

(2) The President of the Republic, the two Vice Presidents, assistants and advisors, the President of Government of Southern Sudan, national ministers, and other constitutional office holders shall, during their tenure of offices, neither practice any private profession, transact commercial business, nor receive compensation or accept employment of any kind from any source other than the National Government, the Government of Southern Sudan or a state government as the case may be.

Vacancy of the Office of the National Minister

76 The office of the national minister shall fall vacant in any of the following cases:-

(a) acceptance of resignation by the President of the Republic,

(b) relief from office by the President of the Republic after consultation within the Presidency,

(c) death.

Confidentiality of Deliberations of the National Council of Ministers

77 Deliberations of the National Council of Ministers shall be confidential; no minister shall disclose, communicate or reveal such deliberations save by permission of the Council of Ministers.

Contesting Ministerial Acts

78 Any person aggrieved by an act of the National Council of Ministers or a national minister may contest such act:

(a) before the Constitutional Court, if the alleged act involves a violation of this Constitution, the Bill of Rights, the decentralized system of government, or the Comprehensive Peace Agreement,

(b) before the competent authority or court of law if the allegation is based on other legal grounds.

CHAPTER V : THE GOVERNMENT OF NATIONAL UNITY

Objectives of the Government of National Unity

79 Prior to the elections and notwithstanding Article 70 (1) of this Constitution, the President of the Republic, in consultation with the First Vice President, shall form a Government of National Unity, which shall implement the Comprehensive Peace Agreement, reflecting the need for inclusiveness, the promotion of national unity and the protection of national sovereignty.

Allocation of Seats of Government of National Unity

80 The seats of the Government of National Unity shall be allocated according to the seventy percent to thirty percent North/South ratio, as follows:-

(a) the National Congress Party shall be represented by fifty two percent (forty-nine percent for Northerners and three percent for Southerners),

(b) the Sudan People’s Liberation Movement shall be represented by twenty eight percent (twenty-one percent for Southerners and seven percent for Northerners),

(c) other Northern Political forces shall be represented by fourteen percent,

(d) other Southern Political forces shall be represented by six percent.

Sharing of National Ministerial Portfolios

81 Portfolios in the National Council of Ministers, as clustered in Appendix (D) of the Comprehensive Peace Agreement, shall be shared equitably and qualitatively in accordance with the provisions of Article 80 above.

Duties of the Government of National Unity

82 The Government of National Unity shall undertake the following duties:-

(a) administration and functioning of the State and the formulation and implementation of national policies in accordance with the provisions of this Constitution,

(b) establishment of a decentralized democratic system of governance taking into account the cultural, ethnic, racial, religious, and linguistic diversity and gender equality,

(c) implementation of the Comprehensive Peace Agreement in a manner that makes the unity of the Sudan an attractive option especially to the people of Southern Sudan, and pave the way for the exercise of the right of self-determination according to Part Sixteen of this Constitution,

(d) implementation of an information campaign throughout the Sudan in all national languages to popularize the Comprehensive Peace Agreement, foster national unity, reconciliation and mutual understanding,

(e) taking all necessary measures to ensure that peace and stability prevail throughout the country,

(f) devising a comprehensive solution that addresses economic and social problems, replacing conflict not just with peace, but also with social, political and economic justice and respect the fundamental freedoms and rights of the people of the Sudan,

(g) formulation of a repatriation, relief, rehabilitation, resettlement, reconstruction and development plan to address the needs of the areas affected by the conflict and redress the imbalances in development and resource allocation.