South Sudan constitution under microscope

By Jacob K. Lupai

May 9, 2011 — The Transitional Constitution of the Republic of South Sudan, 2011 is under microscope because it seems the wider public has received it with mixed feelings. The various political parties have reservations and one party in particular has expressed an outright rejection of the transitional constitution. For this reason the transitional constitution is under microscope to find out why people have mixed feelings or indifferent to the Transitional Constitution of the Republic of South Sudan, 2011.

The problem started when the Government of Southern Sudan (GOSS) initiated the review of the Interim Constitution of Southern Sudan, 2005. It is worth noting that the Sudan People’s Liberation Movement (SPLM) is the lead political party in GOSS. In effecting the review of the Interim Constitution of Southern Sudan, 2005, the President of GOSS issued a decree appointing a constitutional review committee of 24 persons of whom 23 were SPLM members. The reaction of the other South Sudan political parties was swift. The parties rejected the action of the President as unilateral and claimed to be contrary to earlier resolutions of all South Sudanese political parties’ conference. To resolve the matter 11 persons from the other South Sudan political parties, 1 from civil society and 2 from faith-based groups were added to the constitutional review committee.

Again another decree was issued by the President of GOSS adding 17 more SPLM members to the constitutional review committee. This pushed the number of SPLM members to 40. This shows that the SPLM membership of the constitutional review committee was about 73 per cent. This obviously suggests that the SPLM members were the majority in the constitutional review committee. It was therefore not strange when the constitutional review committee would be influenced by the majority SPLM members. This was one of the problems.

One question of relevance to ask is does the Transitional Constitution of the Republic of South Sudan, 2011 reflect dominant values within South Sudan? If the Transitional Constitution does not reflect dominant values then prospects for stability in South Sudan may be poor. For example, democracy is highly valued in the SPLM vision, programme and constitution. In the Constitution of the SPLM 1998, Article 4.1 reads, “The complete destruction of the minority, oppressive clique regime of the Old Sudan in all its forms; and its replacement by the New Sudan that shall be built on a free, just, democratic and secular system of governance based on the free will and popular participation of all the people of the New Sudan, as came in the programme of the SPLM”.

One phrase that captures the eye in Article 4.1 of the Constitution of the SPLM 1998 is “popular participation of all the people”. It is therefore difficult to see how the SPLM could disregard its own Constitution by being exclusive in the review of the Interim Constitution of Southern Sudan, 2005. This may make the SPLM to be perceived as preaching what it does not intend to honour, hence being of double standards and untrustworthy promoter of dictatorship through the back door. This may alienate the SPLM members who hold dearly democratic values.

In an open debate or forum it is difficult to see how the Transitional Constitution of the Republic of South Sudan, 2011 can stand the test of democracy. Clearly the SPLM is ardently promoting dictatorship similar to that of the National Congress Party (NCP) in the North. The call for a federal system of governance is not only popular but it is enshrined in the Interim Constitution of Southern Sudan, 2005 as decentralization. However, in the Transitional Constitution decentralization has not been articulated as expected. Worse the Transitional Constitution is centralizing power. In contrast the three States of Equatoria are definitively for a federal system of governance. Northern and Western Bahr el Ghazal States may most likely opt for a federal system and so do Upper Nile and Unity States.

It can be seen that statistically the majority of southern states and political parties are for a federal system of governance. The majority of South Sudan political parties are also ready for a federal system. It is only some elements in the SPLM that are the odd ones out. It is most probable that in an election the SPLM will suffer massively because of this reactionary behavior. No one in their right senses will vote for a party that is out of touch and worse is perceived as of double standards not only lacking in principles but with a blurred vision.

It is not difficult to see how the SPLM is leaning towards dictatorship. For example, Article 101 (r and s) of the Transitional Constitution of the Republic of South Sudan, 2011 clearly states that the President can remove state Governor and/or dissolve a state legislative assembly and can also appoint a state Governor. Article 164(2) also shows that the Governor of each State shall appoint and relieve constitutional post holders in consultation with the President. The implication here is that the President may have veto powers to block the appointment and relief of a State constitutional post holder such as a deputy governor, advisor and a minister. In a federal system this may be a gross interference in State affairs. This will be a clear concentration of power at the centre. In other words this is centralization which is a contradiction to Articles 1(4) and 47(b) of the Transitional Constitution of the Republic of South Sudan, 2011. Clearly the SPLM is leaning towards dictatorship which is likely to appall its principled democratic members.

The Transitional Constitution of the Republic of South Sudan, 2011 is a blatant contradiction to what the SPLM has stood for since its inception. In the Vision, Programme and Constitution of the SPLM, 1998 and specifically in its 15-point programme, the SPLM is crystal clear that it “shall establish and base itself on the democratic path of development, which empowers and encourages active participation of all citizens at all levels in their liberation and in their own governance, and where the people in positions of authority or decision-making are mandated periodically by the people”.

On governance the SPLM has said it shall setup and establish good governance, where the exercise of political, economic and administrative authority in the management of the country’s affairs at all levels shall be people-based, so that individuals and groups have an effective say in the allocation and management of resources and in decisions that affect their lives. The SPLM couldn’t have been abundantly clearer in its 15-point programme that the Transitional Constitution of the Republic of South Sudan, 2011 seems to undermine. It is unfortunate that we now have a bunch of reactionaries masquerading as revolutionary grossly misleading people.

In conclusion, the Transitional Constitution of the Republic of South Sudan, 2011 is a controversial kind of a present to the people of South Sudan in the eve of independence. Let’s hope that this will not spoil the festive mood of the people on 9 July 2011. A federal system is being disregarded contrary to the concepts in the Vision, Programme and Constitution of the SPLM, 1998. However, it is obvious that the majority of southern States will opt for a federal system and so do the majority of southern political parties. There are probably some few reactionaries in the SPLM who do not care about the future of the Republic of South Sudan but only their narrow interest. The paper on which the Transitional Constitution has been printed could better be recycled into quality office tissue paper as a present in the eve of independence. This may be the contempt in which the Transitional Constitution of the Republic of South Sudan, 2011 is held.

The author can be reached at [email protected]