What is expected from South Sudan Constitutional Review Commission: Part I?
By Luka Biong Deng
March 11, 2013 – The people of South Sudan will soon be debating the aspects of Permanent Constitution that will certainly lay a foundation for the new country. There is no doubt that the Transitional Constitution has laid process and mechanism through which the views of citizens could be solicited. The real question is what would be the critical issues to be addressed in the final text of the constitution? In order to make constructive contribution, we may need to think out of the box, critically review the current transitional constitution and make use of wealth of experience in constitution-making in Africa.
Perhaps I would like to start with rather naïve question of whether we need a constitution. This is a central question as this would provide the intrinsic value of the constitution in our lives and subsequently the legitimacy of state. Having a constitution has an implicit acceptance of having a state. Given the growing evidence that states, particularly in Africa, are generally self-serving and cannot be expected to enhance the well-being of citizens, it raises fundamental question of whether we need after all state.
Certainly the role of state cannot be underestimated as evidenced in the success of mankind in the 17th century with emergence of the Dutch “Golden Age”, industrial revolution in Britain in the 18th Century, economic success in France, Germany and USA that surpassed British hegemony in the 19th Century and emergence of economic tigers in Asia in the 20th Century. As such the real question is not whether we can have state or not but rather what type of state that we need to have. The constitution-making is meant to answer this question of how to transform state from one that is incompetent, self-serving, or one that serves the interests of dominant groups, to one that is effective and committed to advancing well-being of citizens.
I believe what we want to achieve with this constitutional review process is to lay down a foundation that will enable us to avoid our state and nation not to fail. In fact the failure of state is not synonymous with the failure of nation. State fails when its public institutions are unable to deliver positive political goods such as security, rule of law and order, basic services and political space, to citizens on a scale likely to undermine the legitimacy and the existence of the state itself. Some indicators for state weaknesses include disharmony between communities, inability to control territory and its borders, a growth of criminal violence and corrupt institutions.
On the other hand, the failure of nation occurs when the nation projected by state is distorted and it is no longer convincing to many communities as it does not provide the foundation for its acceptance. In other words the nation that is culturally projected by state does not provide consensus, affiliation and sense of belonging. This may eventually lead to the leaders of various communities to create an atmosphere of fear in which war in the name of national self-defense may be seen as the only solution and with increased desire to secede.
It will not require efforts to appreciate the challenges facing our country not only in building state but also the nation as well. While state-building can easily be responded to, nation-building is a rather complicated and a daunting task. In fact the main purpose of state-building is to establish and strengthen public institutions to deliver political goods with powers and rules that are regarded by the people as legitimate. Nation-building on the other hand is a process of collective identity formation as the basis for legitimizing the power of public institutions. There is sometimes a wrong assumption that erection of democratic institutions will eventually lead to a democratic society united by a democratic collective identity. Nation-building is a process that is context specific and is different from state building and it cannot be simply achieved through democracy alone.
One would hope our constitution-making process will eventually contribute to building both state and nation as well as establishing a more democratic state and a set of values, norms and institutions as part of the common national identity. In other words, the challenge is how can we make our permanent constitution to provide the necessary tools for state-building and nation-building processes? These tools could include the process of constitution-making itself, the institutional arrangements made in the constitution, and the values and symbols embodied in the final text of the constitution.
Given the constitutional review process has been exhaustively discussed and almost came with a conclusion that the process started wrongly, I will focus in this part of my article on the Transitional Constitution. Given my engagement as a member of the drafting committee of the Sudan Interim National Constitution, a member of the Sudan National Constitutional Review Commission, a member and secretary of the drafting committee of the Interim Constitution of Southern Sudan and a facilitator for drafting a model interim constitution for the ten states of Southern Sudan, I will be able to share views about our current constitution.
As the starting point of the work of the Commission is to review the Transitional Constitution as per its sub-article 202 (6), then the final product of the Commission will be largely shaped by the Transitional Constitution. As such it subsequently deserves a thorough scrutiny. Although various reviews of the Transitional Constitution have been made, there is one fundamental question whether there was a legal ground to have it at all. Specifically, the last sub-article 208 (7) of the Interim Constitution of Southern Sudan, 2005, clearly stated the following:
“If the outcome of the referendum on self-determination favours 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.”
This will not require any legal knowledge to figure out whether there was a need to have the Transitional Constitution as the Interim Constitution of Southern Sudan should have remained in force until a permanent constitution is promulgated. Interestingly, the people who drafted the Transitional Constitution are the same people who participated in the drafting of the Interim Constitution of Southern Sudan and most of them are now members of the Commission.
In fact the Transitional Constitution did not maintain the constitutional development progress achieved in the Interim Constitution. One would even say that the Transitional Constitution was a regression in the evolution of the constitution development process in South Sudan. It seems the drafters of the Transitional Constitution were largely guided by some individuals with certain positions in their minds and with clear intention to realize specific interests beyond the national interests.
Specifically, the Transitional Constitution distorted certain provisions of the Interim Constitution. In particular the powers of the President were excessively boosted for no any good reasons and subsequently undermined the legitimacy of public institutions. For example, the Transitional Constitution has given a constitutional power to the President to remove an elected governor of state and even to dissolve an elected state parliament without due process and as such a clear breach of democratic values and practices.
Unlike the Interim Constitution, the President in the Transitional Constitution has the right to appoint national ministers without consulting the Vice President. In fact the Vice President is not only a running mate of the President but is also a person who acts as president in his or her absence. Importantly the appointment of the Vice President is only made with the approval of a two-thirds majority of all members of the parliament. Having a collective leadership and a consensus decision-making process are aspects that can make the public institutions to have legitimacy and to be more acceptable to citizens.
One of the symbols of a country that solidifies nation-building is its capital city. While the Interim Constitution made it very clear that the city of Juba shall be the capital of Southern Sudan and the seat of the Government of Southern Sudan, the Transitional Constitution distorted this provision by injecting additional provision that allows the National Government to relocate by law the national capital to any other location. This provision was uncalled for as the permanent constitution would have been the right mechanism to handle such important issue within a wider consultation. As I expressed earlier my view about national capital, maintaining Juba as our national capital will be one of our national symbols that will greatly contribute to our nation-building.
On the basis of these views about the Transitional Constitution, one expects the Commission to use the Interim Constitution of Southern Sudan as its main starting point rather than relying only on the Transitional Constitution that was hastily and poorly drafted. As I mentioned earlier we need a constitution that will strengthen our public institutions to deliver positive political goods and create a common national identity that we all can relate to and be proud of.
Luka Biong Deng is the South Sudanese Co-Chair of the Abyei Joint Oversight Committee and a Fellow at Harvard Kennedy School. He can be reached at [email protected]. This article was first published by the New Nation Newspaper.