Rebuttal: Why South Sudan’s National Constitutional Review Commission remains essential

Adv. Beny Gideon

Following the circulation of an opinion piece authored by veteran politician Dr Lam Akol, titled “Revisiting the Permanent Constitution-making Process, dated 6 June 2024”, his findings discovered that “too much attention has been given to the National Constitutional Review Commission (NCRC) to the extent of even assuming the powers reserved for the National Constitutional Conference (NCC)”.

In his wisdom, Dr Lam argued that “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 “his contention to do away with the NCRC and that drafting committee must stem from the NCC itself, not before its convening”. Finally, his central argument for removing the NCRC in regards to its drafting mandate is that “there can never be a draft constitution without first resolving two cardinal issues which are: a system of rules, whether the country will adopt a parliamentary, presidential or a hybrid system and the type of federalism that suits the peculiar conditions of South Sudan”.

This brief is in response to this political and supposedly legal argument. First, I take this opportunity to appreciate Dr Lam for his usual expression of political ideas throughout his public and private life, which has so far impacted Sudan and South Sudan in many ways. Today, the Republic of South Sudan is in search of a permanent constitution to set parameters for state and nation-building in a constitutional democracy.  As Dr Lam is the head of the political party which is already participating in the Transitional Government of National Unity, it is imperative that his participation in the constitutional development is paramount, and any opinion coming from him is not just individual political thought per se, but that of the group or political organization.

Second, the constitution-making process is defined by the terms and conditions of the Revitalized Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS 2018) and the Constitution Making Process Act 2022, both of which are the main legal references on the parameters of the permanent constitution.  Both legal instruments established mechanisms for the constitution-making process, including the (NCRC) amongst other constitution-building blocks. The NCRC, as the name suggests, misled others into believing that its mandate is only to review the Constitution.  However, there is no disagreement that the Constitution cannot be written without the use or benefits of existing literature, be it national or external borrowing.

This literal thinking about the roles of the NCRC equally influenced my senior citizen, Dr Lam, to challenge the roles of the NCRC in addressing the two cardinal issues in the permanent constitution-making process. Instead, the NCRC roles enshrined under articles 6.6,  6.10, and 6.13 of the R-ARCSS 2018, read together with sections 9 and 12 of the Constitution Making Process Act 2022, provide for the establishment of the Reconstituted National Constitutional Review Commission (R-NCRC) with a mandate to “review the Transitional Constitution of the Republic of South Sudan 2011 as amended and collect views and suggestions from all relevant stakeholders including any changes that may need to be introduced to the current system of governance and most importantly to conduct a nation-wide public information program and civic education on constitutional issues. This means that the NCRC remains a key interlocutor in the design of the permanent constitution, guiding the debate on addressing the two cardinal issues.

Third, as far as the history of constitutional development in South Sudan is concerned, there has never been an inclusive political process or people-led constitutional development. Fortunately, the R-ARCSS and the Constitution Making Process Act 2022, for the first time, will provide such avenues and guidance on the constitutional-making process based on the supremacy of the people of South Sudan. In other words, if fully implemented, the mechanisms for permanent constitution-making as outlined in both legal frameworks will be a clear indication of participatory constitution-making processes for the first time.  The exercise will be deliberative and transparent, occur in phases, and provide an opportunity for public feedback, participation, and popular acceptance of the results as the people’s legitimate constitutional document.

I therefore respectfully disagree with Dr Lam’s premise for proposing to ‘do away’ with the NCRC in the process of making our permanent constitution. It appears that he has chosen to undervalue the designated role of the NCRC for reasons explained in his piece that are not politically and legally reasonable. Any significant national endeavour, such as this process, necessitates a legally appointed facilitator, a role which, in this instance, is fulfilled by the NCRC. Unfortunately, Dr. Lam seems to overlook the importance of public education or awareness in this process. These vital issues cannot be addressed concurrently with deliberations on the constitutional text during the NCC, as he suggested.

Considering the high levels of illiteracy in South Sudan, how would the public effectively participate in the NCC without adequate sensitization through the NCRC’s educational function if we adhere to the people-driven constitution and not an elitist political process? Nevertheless, Dr. Lam raises a valid concern regarding the timing of addressing the two ‘cardinal issues’ in the process of making our permanent constitution. To his credit, these issues warrant extensive deliberations from all parties and experts to shape the agenda-setting and drafting phases of the Constitution. I believe it would be more sensible to propose another layer of duty to be assigned to the NCRC – to convene a two-day National Stakeholders Convention immediately following the completion of the constitutional drafting committee CDC’s recruitment to address these ‘cardinal issues.’

In conclusion, the process of creating our permanent constitution is far from complete and will occasionally require adjustments at various stages. However, I strongly believe the guidelines are well-established in the Constitution Making Process Act 2022, and any significant modifications could jeopardize the process once again as another missed opportunity for the people of South Sudan.

Adv. Beny Gideon is the Undersecretary for the Ministry of East African Community Affairs. This opinion is solely that of the author and doesn’t represent any entity. For any comments, please do not hesitate to reach out via: [email protected]