What is Expected from South Sudan Constitution?

By James Okuk

Quote: “Many cooks will not spoil the broth if they use the right ingredients in good time”

February 20, 2011 — With the surfaced politicking in the passing weeks after the announcement of the final results of the recently concluded referendum of self-determination for Southern Sudan, it has become clear that drafting of the Constitution of the Republic of South Sudan is now treated as a priority with inclusively. If I may recall, some concerns were raised on nomenclature and composition of membership of the Committee for those who are supposed to be tasked with doing this work as per Decree of 2011 No.1 issued by H.E. Salva Kiir Mayardit, President of the Government of Southern Sudan (GoSS), regarding the formation of “Technical Committee to Review the Interim Constitution of Southern Sudan.” Also the terms of reference of that Committee were seen as a violation of the idea of formation of “National Constitutional Review Commission” as agreed in the final communiqué of “All Southern Sudanese Political Parties Conference”, October 13 – 17, 2010 in Juba.

Notwithstanding, it seems that with the recent reported 2011 GoSS Presidential Decree No.8, this concern got resolved as eleven members of Non-SPLM political parties were included in the Committee in addition to one representative of the “Civil Society” though there are still some concerns and doubts about the veteran politician who was named to the represent it. With this good understanding, it seems that the work on South Sudan Constitution drafting is taking pace. Now, the concerned people of South Sudan are eagerly waiting for the outcome of the assignment given to this inclusive Committee. But as the time counts down very fast towards the end of the CPA interim period, concerned citizens don’t really care much about who is who in that Committee. They care about the kind of Constitution that will be produced, adopted and promulgated at the end of the assignment in April 2011.

The following are some of the crucial aspects that are expected to appear in the South Sudan Constitution in some weeks to come:

1. A formal legal structure of what a modern constitution should look like in the context of the Republic of South Sudan. This is expected to be achieved through learning from the Interim Constitution of the Republic of the Sudan (2005) with its regional corollary, the Interim Constitution of Southern Sudan (2005) that is actually being reviewed in accordance with its own article No.208 and with due consideration to article No.206 in order to assign national powers as provided in Schedule (A) to the coming sovereign Government of the new Republic. Useful lessons could also be learnt from constitutions of some countries. For example, the Republic of Kenya has just managed to adopt a modernized constitution in 2010. Also the Federative Republic of Brazil has proven in the last few years to be one of the successful democratic countries after the Republic of India, the United States of America and other credible democratic countries. Hence, drafters of the Constitution of the Republic of South Sudan could do best if they take their time to learn from the modernized constitutions of these recommendable countries.

2. Avoidance of personalization of constitutional politics so that the whole thing would look institutionalized without any favour to individual aspiration of some powerful politicians, but to the supremacy of the Constitution above everything else except the unity of people of South Sudan in their diversities. The purpose of South Sudan Constitution should be underscored and understood holistically in the context of meta-rules for the political system (i.e. the rules that govern the government itself and other political activities in the country). Thus, those given the honourable opportunity to draft the Constitution should bear in mind that what they are doing should aim at:
a) empowering the state to conduct its duties and responsibilities duly;
b) establishing unifying values and goals for the nation building;
c) providing government stability with secured transfer of powers;
d) protecting freedoms as granted in the Bill of Rights; and
f) legitimizing democratic regimes in accordance with people’s choice.

3. Preamble of the Constitution should clearly say what South Sudan is now, where it came from and where it is heading to as a targeted goal and with affirmative commitment of the representatives of the people who produced this highest law of the country for promulgation.

4. Part One of the Constitution should define South Sudan as a Republic whose Ten States co-exist in an indissolvable Union represented by Federal Government that is empowered with sovereignty in the territorial borders drawn by the British and left intact on January 1, 1956, as well as in external representations. It should also define South Sudan as a democracy whose government powers emanate from the people who elect periodically the Federal President, Members of the Federal Parliament, States Governors, Members of States Parliaments, Counties Commissioners and members of Counties Councils in accordance with promulgated constitutional provisions. It should define South Sudan as a democratic republic whose Prime Minister is elected by Members of the Federal Parliament to manage the institutions of the Government through Ministers and other Executive authorities. Further, it should identify South Sudan as a democratic republic founded on:
a) Dignity of Human Person;
b) Dignity of Human Families and Communities;
c) Citizenship without Discrimination;
d) Preservation of Nature and Environment;
e) Use of Public Resources for Promotion of the Common Good;
f) Social Values of Labour, Employment and Free Enterprise;
g) Eradication of Poverty, Diseases and Illiteracy;
h) Research and Development for Better Decisions;
i) Political Pluralism and Gender Participation;
j) Peaceful Settlement of Disputes and Reconciliation with Truth; and
k) Non-Interference with Internal Affairs of Other Countries.

5. Not only these, but also Part One of the Constitution should identify South Sudan as a Country build on these fundamental principles and values:
a) Peace and Prosperity;
b) Democracy and Consensus;
c) Culture and Heritage;
d) Rights and Duties;
e) Development and Solidarity;
f) Humanities, Arts, Sciences and Technologies;
g) Justice and Subsidiarity;
h) Transparency and Accountability; and
i) Governance and Leadership;

6. In addition, Part One of the Constitution should do justice to all religions existing in South Sudan by not favouring any one of them to find its way into any of the provisions apart from what is granted in the Bill of Rights. Fridays, Saturdays and Sundays should be given out as public holidays in line of granting the provision of the bill of right regarding religious practices and believes. Nonetheless, the time of work in the remaining four working days (Monday – Thursday) should be increased to 10 hours per a day to compensate the privately used hours on the religious holidays. Also the government employees should be encouraged to do extra private activities on these holidays, especially in agricultural, animal productions or fisheries (even modern building) sectors so as to help in ensuring food security in South Sudan. Also it should be provided that there shall be three-day holidays yearly on 29, 30 and 31 of every December for Carnivals in all states of South Sudan celebrated in streets and in public entertainment places in acknowledgement of the richness of diverse cultural heritages and pride. This is also to appreciate with happiness the completion of the Old Year and commencement of the New Year.

7. Still on Part One of the Constitution, it should be provided that the lands in South Sudan belong to the Communities or individuals who have owned them legally, be it by local or national standards. Unless proven beyond reasonable to be “no-person” or “no-community” land, the government or the private sector should dialogue it out with the owning community or individual to get tenure rights over their lands for the sake of broader common good for the whole of South Sudan like petroleum extraction, organized mining, agricultural schemes and other bigger valuables.

8. Part One of the Constitution should further provide for promotion of “Citizen’s Basic Income” sufficient to meet each person’s vital needs as a right to participate in the wealth of the community, the state and the nation so as to raise everyone’s level of dignity, freedom and opportunities in South Sudan.

9. Part Two of the Constitution should delve on the provisions of the Bill of Rights as already provided in the Interim Southern Sudan Constitution, but also due consideration should be granted to the African Charter of Human and People’s Rights so as to ensure an African taste in it.

10. In whichever part of the Constitution the government structure and procedures falls in, term of the elected office of the President, the Governors, the Commissioners and Members of Parliaments should be five years. However, if any eligible citizen found himself/herself so important in top-leading the country for many terms, he/she may be allowed in the Constitution to do so but on this condition: Running for two consecutive terms only at a go and getting out for one term in-between so that someone else can take over for five years. This is to acknowledge that democracy is not totally immune from defects, and the doors should not be locked against those who could do their best in leading the country successfully if the people chose to re-elect them again and again based on achievement merits. The one-term break put after the two consecutive terms is to test other leadership options for the benefits of comparisons and diffusion against the boredom of the usual and the often. Also this is partly to entertain the saying that wisdom comes with long experience and exposure to tough responsibilities. But in actual sense, it is very difficult if not impossible for someone to run for more than two consecutive terms. Mathematically, two consecutive terms = 10 years, and the other two consecutive terms = 10 years + 5 years (i.e. the break). Thus, if consecutive terms are combined together with the conditional 5-year break, then the total additional age needed for that leader is 25 years for the first two running for the office consecutively. The second consecutive running will require more additional 15 years to make grand total 40 years. Of course such a leader who still fits strong (especially physically) in these 40 years of rule must be extra blessed from the God of life as his/her age would be over 80 years if he/she took power at a young age. But if he/she took it at older age, the demand of life after 100 years will be so challenging to his/her physical survival.

11. Further more, as there are lower limits put to the eligible age of running for the constitutional elected offices, there should also be higher limits of the eligible age. And as it could be acknowledge that younger people may lack proper experience to run such sensitive public offices; it should also be held true that very old people lack good physical energy to do the executive work required by the similar offices. Since the very young youth could be regarded as juveniles, the very old seniors may also be considered as seniles. Also it should not be mentioned in the Constitution that the eligibility for a citizen to run for a public office should include being “South Sudanese by Birth”. It will be sufficient to state that the person should be a “South Sudanese.”

12. The set up Commissions should not be subdued to any government Ministry else they will look like auxiliary departments. Instead, Commissions should be independent bodies with clear mandates and accountability to the Council of Minister via authorization from the Presidency. The National Parliament should be given authority to summon the Chairpersons of the Commissions for briefings, clarifications or explanations as it is done to the Ministers.

These are some of the important aspects needed to appear in the draft Constitution of the Republic of South Sudan, be it the interim or the permanent one. It will not do any harm if these are included so early to save time later with reviews and amendments. The rest of the arrangements and previsions could be put in any convenient form as long as they adhered to the spirit of the aimed goals, objectives and fundamental principles and values of a modern constitution in the context of South Sudan.

Without any doubt, the Constitution of the Republic of South Sudan could come out in an excellent shape and as an enriched legal document reflecting the expectations of the people and the international community, but only if its drafters availed it for public scrutiny in the known Southern Sudanese media fora. Nothing should be confidential in the Constitution making because at the end of the day it will still go public even if finalized secretly for some ulterior motives of abusing people’s power for the sake of clinging to accompanying privileges, immunities and other opportunities regardless of public disappointments.

Dr. James Okuk is a Ph.D holder with command of necessary knowledge in general and political philosophy as well as some other connected epistemic areas. He could be reached at [email protected].