Revisiting the Permanent Constitution-making process

Dr Lam Akol

 Since independence in 2011, the South Sudanese did not have the opportunity to discuss the constitutional setup that suits their aspirations. The country was run through a transitional constitution which was derived from another interim constitution. Peace agreements (2015 and 2018) came up with amendments to the 2011 Transitional Constitution but it remained transitional. Therefore, the current constitutional arrangements have not sought the approval of our people. The promulgation of a people-centred permanent constitution can only be done by a constitutional conference that is inclusive of all sections of our society.

A constitutional conference is a forum aimed at affirming people’s will in choosing a constitution that suits them. It brings together representatives of various sections of the society and different shades of opinion to draft and adopt a permanent constitution.

Constitution-making in the Peace Agreement

Constitution-making in Sudan and South Sudan has been a thorny issue since independence due to lack of consensus and instability in the country.  It was therefore not by accident that this matter was given ample time during the High-Level Revitalization Forum that led to the signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS). A full chapter (CHAPTER VI) deals with the parameters of a permanent constitution. It is stipulated therein that “the process of permanent Constitution-making shall be led and owned by the people of South Sudan” (Article 6.13).

To put effect to the provisions of the R-ARCSS on the constitution-making process, and in particular in accordance with Article 6.9, the “Constitution Making Process Act 2022” was adopted as a bill by the Transitional Legislative Assembly and signed into law on 21 December 2022.  The Act outlined the institutions tasked to prepare a draft permanent constitution for the country and its adoption.  These comprised: The National Constitutional Review Commission (NCRC), Constitution Drafting Committee, and Preparatory Committee culminating with the National Constitutional Conference (NCC) which is the body that takes the decisions on all the matters connected with the constitution and adopts the final text. Too much attention was given to the NCRC to the extent of even assuming powers reserved for the NCC. In order to promulgate a truly people-centred constitution that will be owned by the people of South Sudan, their representatives in the NCC must be the ones controlling the process from the beginning to the end. To achieve this, it is the contention of this author to do away with the NCRC and that the drafting committee must stem from the NCC itself, not before its convening.

A case to do away with the NCRC

The powers and functions of the NCRC are spelt out in Article 12 of the “Constitution Making Process Act 2022”. These can be summarized as follows:

• Internal matters of the commission (Sub-sections 1, 2 and 12);
• Recruiting members of the Constitution Drafting Committee (sub-section 3);
• Facilitation and conduct of civic education and public consultation (sub-sections 4, 5, 6, 7, 10 and 11);
• Validating and publishing the first draft constitutional text (sub-sections 8 and 9).

The central argument for doing away with the NCRC is in regard to its drafting mandate (points 2 and 4 above).  There can never be a draft constitution without first resolving at least two cardinal issues. These are the system of rule (will the country be adopting a parliamentary, presidential or hybrid system?) and the type of federalism that best suits the peculiar conditions of South Sudan. The design, form and content of any constitution hinges on these issues. It is the NCC that will make final decisions on these two issues. Hence, the drafting of a constitutional text must wait until that time.  Regarding the conduct of civic education and public consultation function (point 3 above), it can be done by a committee of the NCC while it is still in session to inform its discussions before adopting its resolutions. Point 1 above is rendered redundant for in the absence of a body no internal regulations will be needed. Implicit in the powers and functions of the NCRC is, as the name suggests, to review the current constitution and other similar constitutions to draw lessons from.  It must be remembered that the exercise is not to review a constitution but to write a new one. Needless to say, lessons can be drawn from the current constitution and other similar constitutions all over the globe. However, this is a matter better left to the parties and stakeholders to handle. No serious political party has a position on how the constitution of the country should look like. All the various positions should be tabled before the NCC and discussed. Then a committee would be formed to summarize the different positions of the parties to facilitate the decision of the conference. The conference may also organize to listen to experts on constitution making or specific topics before it, either in plenary, committees or both.  This committee will recommend to the NCC the options available, especially on the two central issues above.

The bottom line is that the NCRC is an unnecessary undertaking. The invaluable time and money expended on this body should be saved for more fruitful use. Its 57 members are drawn from the very stakeholders that will constitute the NCC. Let them take their expertise and knowledge there.

The Preparatory Committee
Before convening the NCC, the parties and stakeholders will form a preparatory committee to prepare for the convening of the National Constitutional Conference.

The Committee shall be inclusive of the stakeholders and tasked with making all the necessary arrangements and preparations required for the holding of the Conference, and to convene the Conference within a specified period from its formation and shall be dissolved as soon as the Conference is held.

The National Constitutional Conference
This is the forum that debates and makes decisions on the design, form and content of the permanent constitution. Its membership is usually 1,000 – 2,000 members as agreed in advance by the stakeholders. The NCC holds its meetings in plenary but can form committees or break-out groups to study more closely certain topics that form the agenda. It may also invite experts on specific topics being discussed to address the NCC or any of its committees. All decisions of the NCC are taken by consensus. Once the conference has adopted its final resolutions, it shall form a committee to draft a constitutional text based on these resolutions. The committee reports back to the plenary so that the draft is adopted as the draft permanent constitution. Finally, this document is submitted to the President for tabling before the Constituent Assembly or put to a referendum.

Civic education and popular consultations are part and parcel of the NCC work. It shall form a committee on these activities that will make arrangements with all the topical committees to visit the states and counties so as to sensitize the public on the work of the conference and collect their views, oral or written, to be shared in the deliberations of the NCC.

The National Constitutional Conference is expected to last for six (6) months or so and its sessions shall be open to the public and the media.

Agenda items in the Constitutional Conference

 The NCC will deliberate on all issues related to the constitution. Key issues to be debated and decided upon in the Conference include the Bill of Rights; system of rule; suitable type of federalism; separation of powers; security sector; good governance; economy and development; and many others.

Conclusion
 A constitution may be defined as the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it. It is therefore the foundation of a state and regulates the workings of its government in relation to the people who are the sovereign power. South Sudan has been without a permanent constitution for 13 years. This was due to political instability that brought civil war and more instability. The signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan ignited hope among the suffering South Sudanese for a brighter future. It promised to deliver a permanent constitution on 12 May 2021. This pledge remained unfulfilled due to the political will deficit. Three years on, while our people are reeling under a collapsing economy, natural calamities and rising communal violence, the political class in the country is still debating as to when and under what conditions will a permanent constitution be promulgated.

All have agreed to have a people-centred constitution. Therefore, the representatives of the people must drive and own the process from the beginning to the end. Hence, the National Constitutional Conference must be convened without delay so as to deliberate on the constitution and deliver this much-needed and long-awaited supreme law of the land.  By this, we would have laid the foundation stone for the stability of the country and sustainable peace.