Critique of the draft Transitional Constitution of the Republic of South Sudan
By Lam Akol
April 30, 2011 — In October 2010, the Southern Sudan Political Parties concluded a conference in Juba and a Final Communiqué which marked the road map for working together before, during and after the referendum was agreed upon. Thus, the Political Parties Leadership Forum (PPLF) was formed to follow up the implementation of the resolutions of the Conference. It was headed by H.E. Salva Kiir Mayardit, the President of GOSS and Chairman of the SPLM, with heads of the other Southern Political Parties as members. Dr. Riek Machar, the VP of GOSS was the Rapporteur in his capacity as the chair of the Forum’s Secretariat.
The PPLF’s last meeting before the referendum decided to hold its next meeting one week after the announcement of the final result of the referendum. This result was announced on the 7th of February with an overwhelming majority in favor of separation of the South. Hence, the PPLF was to meet on the 14th of February 2011. Before the scheduled meeting, the President of GOSS issued a decree appointing a 24-person Constitutional Review Committee, to review the Interim Constitution of Southern Sudan, 2005. All of them, save one, were from the SPLM.
South Sudan Political Parties, SSPP, met and rejected the action as unilateral and contrary to the spirit and letter of the resolutions of the All Southern Sudanese Political Parties Conference of October 2010. A delegation sent by them on 25th of January 2011 to meet the President of GOSS in order to straighten the matter was not met despite a prior firm appointment.
When the Political Parties Leadership Forum met in Juba on 16-17th February 2011, the discussion centred on the formation of the Constitutional Review Committee, and the matter was resolved, or so it seemed, by the addition of 11 persons from the South Sudan Political Parties, 1 from civil society, and 2 from faith-based groups. To the surprise of the SSPP and the people of South Sudan, a decree was issued four days later by the President of GOSS adding 17 more people to the CRC, all of them SPLM members, pushing their number to 40. Thus, what was meant to be a small committee acquired a membership of 54!!
The meetings of the expanded CRC were shrouded with lack of clarity on the side of the SPLM, which held all positions of chairpersons of the sub-committees, and their total disrespect to the members of SSPP leading to their inevitable withdrawal from the Committee on the 7th of March 2011. Since then, the CRC continued its work without the participation of SSPP members. The Chairman of the PPLF did not see such a serious development as warranting a meeting of the Leadership Forum. Therefore, the draft Transitional Constitution of the Republic of South Sudan, now being discussed, was the work of the SPLM alone. Political parties and others who stayed on in the Committee do not seem to have changed anything.
WHAT IS THE LEGAL BASIS OF THE REVIEW PROCESS?
It is important to be clear from the outset of the constitutional basis of reviewing the ICSS 2005. Is it a constitutional amendment, or is it a process that gets its legitimacy from the popular consensus built at the “All Southern Sudanese Political Parties Conference” held in October 2010? Each of the two situations has far-reaching implications. If it is to be considered an amendment of ICSS, then Article 206 (2) would apply. Sub-section (2) of this Article states the following:
“Any amendment affecting the provisions of the Comprehensive Peace Agreement shall be introduced only with the approval of both Parties signatory to the Comprehensive Peace Agreement.”
Surely, the review of ICSS affects the provisions of the CPA, and the country is still one up to the time the amendment would be debated by the SSLA. The implication of this is that we shall need the approval of the National Congress Party (strictly, the Government of Sudan) of the draft before it is tabled before the Southern Sudan Legislative Assembly. Is this what the Southerners want to happen? Do they want the NCP to have a veto on our future constitution?
One does not subscribe to the notion that this exercise is an amendment. The reason is that an amendment causes changes in a constitution while the main body remains intact. This draft is a new constitution all together because it transforms the ICSS from a regional constitution to a national one. In other words, the character of the ICSS has totally changed. This be the case, there should be no rush to introduce the draft constitution before the Southern Sudan Legislative Assembly at least two months before deliberation as required by Article 206(1) of ICSS 2005. Southerners should take their time to debate this important document.
If the review process gets its legitimacy from the will of the Southern People, as represented by their parties in the October Conference, then the basis of that is the resolutions of that Conference as summarized in the Final Communique issued on 17th October 2011. One cannot be selective as to what is the constitutional basis of the review process.
CAN THE ICSS REMAIN AS THE CONSTITUTION OF A SOVEREIGN AND INDEPENDENT SOUTH SUDAN?
This is a crucial question. It is the essence of Article 208(7) that the SPLM often quotes as the justification for the continuation of the current institutions of the regional Government of Southern Sudan into the new independent state after 9th of July 2011. We shall deal in what follows with the fallacy of this argument.
If Article 208(7) of ICSS 2005, were to hold, then:
(i)The Interim Constitution of Southern Sudan 2005, (ICSS), would have remained in force as it is after the 9th of July 2011, and there would have been no need to carry out a constitutional review process as is currently the case. This review process is all about transforming a regional or sub-national constitution into a national one. That is, to provide for the sovereign constitutional needs of the new independent and sovereign state. It is not and can never be about removing parts that got repealed, for those parts are already redundant.
(ii)The new Republic of South Sudan would be without national and sovereignty institutions, such as the President of the Republic, foreign affairs, national judicial organs, etc. This is because there are no provisions in the ICSS on such matters, since ICSS is a regional or sub-national constitution. This is the meaning of Article 208(7) when it provides that:
“If the outcome of the referendum on self-determination favors secession, this Constitution shall remain in force as the Constitution of a sovereign and independent Southern Sudan, and the parts, chapters, articles, sub-articles and schedules of this Constitution that provide for national institutions, representation, rights and obligations shall be deemed to have been duly repealed.”
Why would a national constitution repeal national institutions, etc.?
The meaning of Article 208(7) as it stands, is that “this Constitution shall remain in force as the Constitution of a sovereign and independent Southern Sudan” with the repeal of the matters mentioned therein. But, can it be a constitution of a sovereign and independent State without national and sovereignty stipulations? No. Therefore, it is not sufficient to repeal only as the said article stipulates (in fact, a repealed article is already inapplicable and should not be a problem) but to add as well, an aspect not covered by the provisions of the article. Thus, for Article 208(7) to be relevant, it must have dealt with the provisions to be added not only with those to be repealed. It is evident that Article 208(7) was copied without rumination from Article 226(10) of the Interim National Constitution, which stipulates:
“If the outcome of the referendum on self-determination favors secession, the parts, chapters, articles, sub-articles and schedules of this Constitution that provide for Southern Sudan institutions, representation, rights and obligations shall be deemed to have been duly repealed.”
In the case of the Interim National Constitution, there was no need for an immediate review of it since it already provides for national and sovereignty matters and repeal of some of its parts that relate to Southern Sudan do not affect its national character. In contrast, ICSS could not become a national constitution without adding national and sovereignty provisions. This is a most fundamental point.
The sine qua non for the review of the ICSS is to transform it from a regional constitution into a national one. In other words, to add national and sovereignty provisions and delete provisions that were no longer relevant. The review was not meant to change relevant provisions (such as substituting “Minority Leader” for “Leader of the Opposition”). Nor was it meant to introduce matters that require consensus such as whether the system of government is to be parliamentary or presidential, or whether the Parliament should be bicameral or a single house. This consensus can only be built in the National Constitutional Conference which would be convened during the transitional period.
THE ROAD MAP FOR INDEPENDENT SOUTH SUDAN
The Final Communique issued on the 17th of October 2010 by the “All Southern Sudanese Political Parties Conference” spelt out clearly the issues that need to be tackled should the outcome of the referendum favour secession of South Sudan (Point 3b of the Communique). For the ease of reference, we summarize them below:
1. There shall be a Transitional Period as from 9th July 2011, the length of which shall be agreed upon by all the parties.
2. H.E. Salva Kiir, President of GOSS, is to be the President of the Republic of South Sudan during the Transitional Period.
3. There shall be formed a national broad-based transitional government. i.e., power sharing.
4. As soon as the result of the referendum was announced the Government of Southern Sudan shall form a Constitutional Review Commission to review the current Interim Constitution of Southern Sudan 2005, to be adopted by the SSLA as the Transitional Constitution of the Republic of South Sudan.
5. GoSS shall convene an all-party National Constitutional Conference to discuss and agree on the Permanent Constitution.
6. General Elections shall be held at the end of the Transitional Period to elect the Constituent Assembly that shall promulgate the permanent constitution.
This was the consensus reached at the Conference and should have been binding to all political parties, civil society and faith-based groups that took part in that Conference. As we go through the document it is abundantly clear that all these points, even No.2, were not strictly honoured by the SPLM in their draft constitution.
.
THE SALIENT FEATURES OF THE DRAFT CONSTITUTION:
The draft Transitional Constitution of the Republic of South Sudan 2011, is tailored to suit one party, the SPLM. It is exclusive, full of contradictions and concentrates power in the hands of the President. The following are the salient features of the draft constitution:
1. There is no provision for power sharing with Southern political parties. This is a violation of the road map above.
2. The Transitional Period of four years from 9th July 2011 (Articles: 66, 100 and 163(5)) is long. Transitions are characterized by short periods (not more than two years) so that elected institutions take over. Political parties were not consulted on this matter, which is a clear violation of the road map.
3. Centralization of powers. For example:
(a)- The President is given the power to remove a Governor and dissolve the State Legislative Assembly (Article 192 (r and s)).
(b)- Appointments of Ministers in the States is made in consultation with the President (Article 164(2)).
(c)- The Schedule on the powers of the State is trimmed down ( points 7, 12, 18, 29 and 44 are struck off). The Schedules should have remained as they were, only the one pertaining to the Government of Southern Sudan should have been cancelled, because it was no longer relevant.
(d)- The State is stripped off of its powers in relation to the Police (article 115 (1)), and other uniformed forces. It is left with running state prisons and reformatories (The new point 12 of the Schedule).
(e)- Avoidance of defining the decentralized system as a federal system. The Southerners have struggled since early 1950s for a federal system in Sudan, it cannot be denied them in their hardly won country.
4. An attempt to control the National Constitutional Conference (Articles 200 and 201).
The National Constitutional Conference embodies the political will of the people and is
therefore above anything else. It should be convened first, then and only then
can it form a committee to look into writing the permanent constitution.
5. Introduction of a new chamber of Parliament (The Council of States), which is a matter
that needs Southern consensus and is not of a transitional nature. The decision on
whether to have a bicameral parliament or not must await the NCC.
The only reason for introducing the “Council of States” at this stage was explained by the Committee thus:
“The Committee has made this suggestion in recognition of the former Southern Sudanese representatives of the Council of States of the national Government of Sudan.”
[Report of the Technical Committee to Review ICSS, 2005, p.17]
Therefore, this new chamber is introduced just for accommodation and not for a functional need during the transitional period.
6. Members of the National Assembly in Khartoum are added onto the members of the
SSLA to constitute the new “National Legislative Assembly”. This will have a
membership of about 270, almost all of them from the SPLM.
No justification for the suggested reconstitution of the SSLA and introduction of the
Council of State, except to accommodate SPLM members in the National Legislature in
Khartoum. Furthermore, members of the National Assembly in Khartoum were elected
for a different parliament in a different country, Sudan.
7. The Leader of the Opposition is now to be known as “Minority Leader”, an unfamiliar
terminology in Sudan.
8. Introduction of the position of “Deputy Minister”. Not necessary during the transitional period, as the ministerial load can easily be discharged by the Minister.
9. The Abyei Area is added to the South without due regard to the provisions of the CPA on
the matter. This is tantamount to taking a unilateral decision on the issue. Abyei may
become part of the South Sudan only if it voted to do so in accordance with the CPA
provisions.
10. No specific mention of a date for the general elections at the end of the transitional
period.
11. No term limit to the tenure of the President. Any President must serve for not more than
two terms only.
12. In the event the position of the President falls vacant, the successor is to be appointed
(Article 102(2)) within fourteen days. This is unacceptable. If the transitional period is to
be more than two years, then the president must be elected within 60 days from the
vacancy of the position. Otherwise, the Vice president should complete the term left up
to the general elections. The procedure of the CPA that was copied here is not applicable
because the reason for including it in the CPA was to avoid having the C-in-C of one army
becoming the C-in-C of the other(SPLA and SAF). Such a situation does not arise here.
Whilst the SPLM argues for the continuation of the institutions of GOSS, such as the SSLA, it, at the same time “reconstitutes” the same SSLA by adding more members onto those already there. Reconstitution means dissolution of what was extant and constituting it again. Also, if the institutions of GOSS were to remain, why then introduce the “Council of States”? All these are obvious contradictions but were meant to accommodate the SPLM members and exclude the other political parties. This is contrary to the spirit of power sharing and inclusiveness agreed upon in the Conference. The fact that the President takes a new oath of office, makes nonsense of any claim to the continuation of the institutions of GOSS.
CONCLUSION
This draft constitution was tailored to fit the SPLM and is predicated on the wrong premise of the continuation of the institutions of GOSS into the independent and sovereign state. The draft Transitional Constitution of the Republic of South Sudan derives its legitimacy from the consensus of the Southern Sudanese arrived at in their Conference held in October 2010 in Juba.
For this draft to represent the letter and spirit of the Conference, the political parties must agree on the following issues:
1. The length of the transitional period.
2. A formula for power sharing between the political parties and the SPLM at all levels of government in the executive and legislative organs.
3. Affirmation of the federal system of government in South Sudan.
4. A clear provision in the constitution on a specific time for holding the general elections.
5. Amendment of the text in order to take care of the above.
The author is the leader of SPLM-DC and former Sudan’s foreign minister
Bin Laden II
Critique of the draft Transitional Constitution of the Republic of South Sudan
To: Dr. Lam Akol
When on this earth will you stop your business of betraying Southern Sudanese and comprimising their rights? Why would you stupidly and mistakenly included Abyei issue among the things SPLM might have violated in South Sudan Transitional Draft Constitution, instead of counting on SPLM for the job well done on incorporating Abyei in South Sudan Draft Constitution? Look, Mr. Stooge, As a politician, like you claimed to be, you shouldn’t and must not always mention anything that in one way or the other goes against you-because the issue of Abyei is a National issue and need all our contribution as Nationlists to called it a success. I wonder why would a person of your calibre feel bad if other Southerners are saying Abyei belongs to the South, in otherwords, do all you can in oppossing SPLM but never dare to oppose them in Abyei-related issues because, if you do, then you are opposing the entire Southern Sudan (South Sudan comes july 9, 2011). Abyei is a Dinka name of a certain tree that birds like most because of it yieldings, i don’t know how you called it in Shilluk language, it’s not an Arab name and as you know, Dinkas only live in Southern Sudan, therefore Abyei belongs to Southern Sudan and we cannot afford to loose it, not even to pro-Arabs like you. One more thing i should tell you is please come home, i mean come to Southern Sudan and play your political game right here, if not you gonna die like a rat!
Paul Ongee
Critique of the draft Transitional Constitution of the Republic of South Sudan
Ya Dr. Betrayer,
Learn how to write critique of draft Transitional Islamic Constitution of North Sudan which denies political freedom and the right of non-Muslims and non-Arabs to govern Sudan since 1956. If you cannot fight Khartoum politically and militarily, let SPLM/SPLA get the job done for you so that you start eying the political position of your choice when elections time comes.
Junubin do not have problem with your academic achievement but inconsistency, dishonesty, radical shift of allegiance and above all, replication of people’s party on the basis of self-interest matter a lot. Do your political homework properly to see where you’re gonna fit in the political leadership of southern Sudan so that you don’t have to get again only 7% in the next elections.
Paul Ongee
Khartoum Watch
Angelo Ajiech Manyuat
Critique of the draft Transitional Constitution of the Republic of South Sudan
Dear Dr. Lam,
Your ariticle is great in term of academic writing standard, but all you have mentioned are pointless & most important of all they’re contradicting you as someone with unfinished business in South Sudan. Sir, most of those things you have mentioned or claimed to be violated by the SPLM are correct except the fact that it’s given too much power to the president, which I think is wrong because some visionless individuals like you will use that power to bully or discriminate others.
As a matter of fact, SPLM have a right to do whatever they think is the best for the people’s interest. As a failed politician, you shouldn’t opened your mouth even though freedom of press and freedom of speech grant you the right to express yourself or speak out because no one will listen to you.
As a betrayer party, the SPLM-DC you have claimed to be a leader shouldn’t be or must not recognized by the SPLM in the first place or allowed even to operate in the South period. The people of South Sudan are all aware that the main objective of the formation of the SPLM-DC was to destroy the secession of the South so that the (Northerners arabs) mostly NCP elite must continuing enjoying our resources and keep treating us as a second class citizens forever.
MJriaksdca
Critique of the draft Transitional Constitution of the Republic of South Sudan
The Dictatorial Constitution
Dr. Lam Akol has said things in the past that I do not appreciate such as Southerners cannot rule themselves. However, this was not his perception alone. Many including international communities were in the same wagon with Lam.
Reasons which led to beliefs of Southerners cannot rule themselves were the frequent tribal conflicts, splits and factionism in the SPLA,Garang’s firm control of SPLA to preserve his movement, and the undeniable fact that Southers do not have modern and formal education hence existence of high rate of illiteracy among them. People who based their personal or group judgements on these facts should not be judged as having hidden agenda because they just stating facts.
However, regardless of the bad things which happened among us as Southerners, we Southerners have the right to self-determination like we showed during the referendum vote. Separation from the North was and still is my favored notion. I am not for anyone that want the South to remain as part of whole Sudan simply because we have these problems among us.
The recent referendum vote which was peaceful has shut up those of Lam Akol and those others that thought South Cannot govern itself. However,people let us not have a perminant idea that just because Lam had several defections during the war he does not have any truth to tell. So, far many, most of whom do not have the right mind to judge, are swiptly brushing aside many of the truthful things that Lam is identifying. In this professional and accademic article Lam has said things that need a keen (not rushing) mind to read and second them. Some things that Lam said here are true and cannot be happening if the SPLM wants a far-reaching peace and stability in our new country.
In our new country we need:
Democracy-not simply rule of majority but one that has values of a republic, government by a few who are mandated by public to democratically and lawfully govern affairs of the people.
If many things put forward by Lam are true, them we are entering a system of government where a small elite will rule the country with an iron fist.
Our new country will not be any different from that of Iran where they have supreme religious council equivalent to what I hear here, the so call “state council.” what the hell is that? we do not need it.
Our country will not be different from those countries such as the former Iraq, North Korea, and others if the president is given such powers as to remove and appoint governors as well as consulted for a appointment of state ministers. This is unheard of and I think even anyone in the family of Kiir should go on the street and protest. This is vehemently a pure dictatorship which made John Garang to fight the North.
So, guys do not just ignore Lam simply because he left spla during the movement. As educated as he is, Dr. Lam is sounding a bell that every school kid must listen to and rush to a parade. Please, regardless of Kiir being your uncle and regardless of us being in the SPLA/M, we must not swallow this constitution. It is rubish and must be re-re-viewed not just by SPLM but by all parties.
I lived in fear during Old Sudan. I cannot go through the same during ROSS. I encourage everyone to not recommend this constitution or else we shall all live in fear again in the hands of a few who want to rule indefinitely.
One thing I want to tell Lam is that you can claim power sharing in other areas but not having a post of prime minister. In South Sudan we just need a democratic system of government with only a one or two termed president, three branches of government with identified separate and balanced power.
I like federal system but the problem is that it broaden government, and in a country where people are so poor regardless of rich natural resources in their midst, we shall be extremely poor because of it. The greatest problem in government is allocation of revenues. With federal and state government we shall have too big a bureaurocracy that will use the resources while leaving its people poor and underdeveloped.
finally, I disagree with the current reviewed constitution and must be dissolved for a new one. Terms of president must be put in place and no one who had a chance to be president to come back again to be president.
Fearless man
Critique of the draft Transitional Constitution of the Republic of South Sudan
There is no wonder, So called Lam Akol is just nothing but political oppartunist, who dosn’t know that? just leave him alone, you will see him next time supporting Dogz, just for position, what a power greedy without telent?
Wanibuluk Ciciliba
Critique of the draft Transitional Constitution of the Republic of South Sudan
Gents,
Some of you write with little understanding of what the article is about and others have nonsenses to write. If you read and understood this article very well, you find out that Lam has become one of those who wants the best for the South Sudan, why can’t you forget his past and focus on his present? The October 2010 conference was a corner stone Constitutional Draft that carried alot of benefits to the entire Souterners but what happened after the taking of oath by the incoming elected President was only a creation of an avenue for self satisfaction and a subortage of the South Sudanese preveladges to fully explore democracy and exercise it to it’s fullest. Presidential term limit is an excellent note in the Constitution but any denial to this means a plan to become a dictector like the Hussein Mubarak and M. Gadhafi which I pray would not happen in South Sudan. The review of the Consitution to favour SPLM is a sign of greed and a disregard for other Political parties who are equally backbornes to the framework of the South Sudan democratic well being. As matter of facts I support SPLM but it is unfortunate that they do not have strong sound politicians to lead the country what they know is arogancy and expression of power at all time to grab thing by force which can’t work hand in hand with politics. May be the good politicians for SPLM are still in Secondary School.
Therefore critisize after understanding the article.
This is a brainstorming session, sharing of views not personal attacts. I have enjoyed.
Cheers.