South Sudan transition and constitution building
By Beny Gideon Mabor
October 14, 2013 – South Sudan fought for decades against Khartoum regimes since 18 August, 1955 for many reasons. Chief amongst causes of liberation struggle was to have federal system of governance in place so that the black Africans people in the South exercises their own political leadership and perhaps owned their independent territorial integrity. This objective cause of the first revolutionary movement was acknowledged in the then Addis Ababa Peace Agreement of 1972 signed between Southern Sudan Liberation Movement led by General Joseph Lagu and the Khartoum administration under President Gaffar Numeri. The Southern region was granted self- autonomous regime in what was famously known as High Executive Council with its two pillars of government namely, Executive and the People Regional Assembly seated in Juba. Judiciary was centralized for reasons best known to the partners in the said agreement.
After 11 years of relative peace observed as lacking strong guarantees, Khartoum government broke the peace agreement in 1983 and declared September Islamic Sharia as system of goverencr which also contributed to the second civil war. However, Islam and Arabization were adopted as larger framework for Sudanese identities which was totally opposed to non-Arabs ethnicities in Sudan including Southern Region. Consequently, the persistent act of discrimination against a particular race, color, religion, and marginalization of nationalities at the peripheries to equally participate in politics and governance triggered the revolutionary forces in the South both military and political wings led by Sudan People Liberation Movement and Army SPLM/A to wage war against central government in Khartoum.
Unfortunately, the political disunity of the SPLM/A revolutionary leadership made them to break up and fought on two ideologies: There was so-called total transformation of the Sudan to a new Sudan of inclusivity based on free will of its citizens with peaceful transfer of power. The second political agenda was for partial liberation of South Sudan as an independent political entity. Whether either party failed or succeeded on these political agenda is out of question as the people of South Sudan made a difference when they overwhelmingly voted in favor of secession and South Sudan was added to the list of family of nations on 9 July 2011.
Now there is a country that need stable constitution, for its institutional framework and other related matters. Apparently, the constitutional making process of the permanent constitution in South Sudan is now seen in a dilemma between top-down approach and vice versa. Historically, South Sudan was part of the former Sudan that has never produced stable constitution since independence in January 1956. We pray that history should not repeat itself in South Sudan, notwithstanding lack of good constitutional foundation since interim period in 2005.
2. History of Constitutional Development in South Sudan
For record sake, the first phase of constitutional making process in South Sudan was Interim Constitution of Southern Sudan, 2005. This constitutional process was dictated by the term and conditions of the Comprehensive Peace Agreement CPA of 2005 and the said Interim Constitution was drafted by politically appointed committee in order to meet compatibility with the National Interim Constitution of the Sudan 2005 as the supreme law of the land. There was no public consultation made and therefore a politically motivated constitution and not a legal democratic constitution.
The second phase was Transitional Constitution of the Republic of South Sudan, 2011. The drafting of this constitution was too similar with the former one, except this is Transitional Constitution of an independent South Sudan. The President issued Presidential Decree No: 002/2011 for the formation of the technical committee to review the Interim Constitution of Southern Sudan, 2005. Although the explicit provision of Article 208 (7) of the Interim Constitution of Southern Sudan, 2005 was violated, the technical committee inter alia, was tasked to review the Interim Constitution of 2005 in order to transit the government from interim to the transitional level where people will prepare their own permanent constitution.
With these two political gaps in South Sudan, it is proven that there has never been a democratic foundation of constitutional development. In other words, the two constitutions totally lack legitimacy from the people of South Sudan. Therefore, it is now a golden opportunity for the people of South Sudan to begin new face of constitutional foundation in a consultative manner to produce people-centered permanent constitution and not otherwise.
3. NCRC Mandate and the Role of all Actors
The year 2012 marks a new dawn of hope for South Sudan in pursuit of constitutional governance. President Kiir Mayardit a year ago issued Presidential Decree No: 03/2012 for the appointment of permanent and part-time members of the National Constitutional Review Commission referred herein as NCRC. According to Article 202 (6) of the Transitional Constitution of South Sudan, it states ‘the Commission shall review the Transitional Constitution and collect views and suggestions from all stakeholders including any changes that may need to be introduced to the current system of governance.
Furthermore, at a swearing in ceremony of the NCRC members on 24 January 2012, President Mayardit summarized the whole process of constitutional making as he said “the permanent constitution will reflect the aspirations of our people and will lay the basis for effective governance and help our country to develop in peace and prosperity…this constitution is to be document of all people of South Sudan”. Surely, the President is fully aware that the constitutional making process is the unique moment in the country to decide what kind of nation people want.
Together with this perspective, it is crystal clear that the people of South Sudan want a flexible and people-driven constitution which shall serve as a national soul. Some legal scholars described the constitution as national soul in the sense that it can play an important role in forging a common identity and creating institutional spaces where citizens interact on an equal basis with their leaders without fear or preferential treatment of classes of people. According to Justice Ismail Mahomed, a renowned constitutional lawyer and a former Chief Justice of South Africa, he said, “the constitution is nothing less than a ‘mirror reflecting the national soul”.
In fact, others could not know why and how constitution is made? It is an opportunity to inform you that there are only two reasons. First, constitution is made as a result of peoples’ decision to make a break from the past. A second reason to make constitution is when people say enough is enough from the treatment of political leadership of the State. Where are South Sudanese people in their gist of constitutional making process between the two? I think the people are breaking from the past and therefore must make a new beginning for the young country.
Another stage of building South Sudan permanent constitution is provided under Article 203 (1) of the transitional constitution of South Sudan, 2011 which empower the President to present a draft constitutional text to the constitutional conference which the criteria, number of participants and personalities to attend is a sole prerogative of the President. The constitutional conference shall debate draft constitutional text on behalf of the people of South Sudan and the same shall be tabled before the national legislature one year before the end of transitional period for, deliberation and adoption within three months.
4. South Sudan Permanent Constitution: A silent Repetition of Constitutional Crisis
In summary, South Sudan has never produced a stable and people-centered constitution since autonomous government of Southern Sudan in 2005 to date for reasons explained in the history of constitutional development. Unfortunately, It’s a replica of constitutional crisis in the then Republic of Sudan where there has never been a stable constitution and with which South Sudan is likely to inherit. Consequently, we all know the end result of such a political manipulation with Sudan as topical example. I hope nobody is interesting in constitutional crisis in South Sudan at the material time and the people must correct themselves earlier and think otherwise.
Why democratic and legal constitution is always preferable than political constitutions? Which types of constitution is better for South Sudan? According to International IDEA practical guide to constitution building, I chose the latter type for two reasons: One, it provides supreme aspect of constitutional law, placing the constitution above all other laws, imposing legal obligations and subject to judicial adjudication by an independent judiciary and finally the government actions are limited to the interest of constitution and the law. This is opposed to a political constitution on the other hand, which elevates the settlement of issues through political processes and within a larger political framework, typically under the authority of the political institution such as legislature. In fact, the Transitional constitution of South Sudan is a political constitution that democratic transformation may not see light of the day unless otherwise.
Therefore, a democratic constitution is the mirror of the people and if you do not see yourself in the mirror, it’s obvious that such a mirror may find it way into dustbin. Remember there are only two ways of passing a constitution worldwide: one is by constituent assembly, where all democratically elected members of parliament pass a constitution on behalf of the people or electorates. And second option is through referendum, where all the people are directly involved in the negotiations and approval of the constitution to suit their full interests. In practice, the latter happened when the legislature is not a constituent assembly or when there is crisis of political leadership in a country particularly in multiparty democracy. In this regards, the constitutional approval by referendum is always an amicable solution. A case in point is our neighboring African countries of Arab Republic of Egypt, Zimbabwe, and Kenya to mention but few where their constitutions were approved by referenda due to existence of either situation cited above.
5. South Sudan National Legislature and Permanent Constitution
As I said about two ways of passing a constitution, the South Sudan National Legislature for the case of parliamentary approval is not a constituent assembly anymore. In other words, the current members of bicameral assembly were not all elected in their respective geographical constituencies, but some are constituent representatives and some were appointed MPs, and therefore causes the national legislature incompetent to pass a permanent constitution. Politically, the provisions of article 58 (2) (a and b) of the transitional constitution read together with the provisions of Article 94 (2) (a and b) of the same for composition of national legislature was just a political decision to urgently closed up gap of political transition more specially for ruling-SPLM to maintain its status-quo in leadership. There was no any legal basis to transport members of parliament from different jurisdiction to another. It is surely unusual practice ever witnessed, but what can be done in a country where there is little respect to principle of constitutionalism.
6. Policy Recommendations
After having convinced beyond reasonable doubt that South Sudan is at crossroad in its democratic and political transition particularly on constitution building as foundation for democracy; the following key policy recommendations are only remedy and need immediate implementation:
- Call on the President to initiate an amendment Bill of the Transitional constitution of South Sudan, 2011 article 203 (1 and 7) of the same that provides constitutional conference and adoption of the permanent constitution by national legislature to be replaced it with referendum so that it is the people of South Sudan to deliberate and directly approved their own permanent constitution at broad day light since South Sudan is not a constituent assembly.
- Call on the National Government to listen to the voices of the ethnicities such as resolutions of the political parties youth leadership academy adopted in Juba on 27 January, 2012 as well as Greater Equatoria Conference calling for federal system of government through parliamentary elections. The collected random opinion polls shown over 60 % opting for federal Republic of South Sudan. This system of governance is good to correct the current misused of a decentralized system of governance that had so much disadvantaged other nationalities in term of services delivery. A federal state will ensure equitable distribution of resources based on population size, priories of the sub national government and other related matters.
- With federal system, the permanent constitution must reduce political institutions to a reasonable number to ensure competent delivery of services in a manageable and accountable structure. In other words, formation of a lean government at the national level and devolve other structures to the sub national level. A good example to think and convinced the government is the current institutional structure at all levels of government which is a duplication of the same with large bureaucracies and huge cost of spending agencies.
- The constitution should limits powers of government and the President in particular without prejudice to the legitimacy of other institutions. It should be clearly spelt out what types of powers to be given to the president. For instance current powers under Article (101) (r) and (s) of the Transitional Constitution of South Sudan, 2011 to remove an elected State Governor or dissolve State Legislative Assembly are ridiculous. However, if allow to repeat itself in the permanent constitution, it will not meet the doctrine of separation of powers in a constitutional governance.
- Call for separation of the Attorney General Chamber and Directorate of Public Prosecution DPP from the Ministry of Justice to be two independent entities. This is a normal practice now in most civil laws jurisdiction and South Sudan cannot be an exception. The genuine reasons are to ensure independence of these two legal institutions in discharge of their duties without political interference. In practice, there is no Attorney General in South Sudan but the Minister of Justice is vested with powers of the same as chief legal advisor of the government. Article 135 (2) of the Transitional Constitution of 2011 says “the Minister of Justice shall be the Chief Legal Advisor and the prosecuting authority at all levels of government, and shall perform such other functions of legal nature as may be prescribed by law. How can the Minister be a politician and the same time a body of legal personality? It should be separated to avoid conflict of interest.
- Last but not least, South Sudan need a constitution that will emanate from citizenry as promised by the President Mayardit on 24 January 2012 and in accordance with the mandate of the NCRC respectively. It is clear that constitutions worldwide enjoys wider legitimacy if they emerge from inclusive, representative and participatory processes that allow all political forces and other relevant stakeholders to participate in its production from scratch.
Beny Gideon Mabor is a Human Rights Activist and work for South Sudan Human Rights Society for Advocacy (SSHURSA). A national Human Rights civil society organization with vision geared towards building an enlightened human rights abiding South Sudan. Prior to joining SSHURSA, the author has worked for South Sudan Ministry of Justice, and a columnist. His research interests include governance, human rights and social accountability. This opinion does not represent SSHURSA position but of the author. He can be reached at [email protected]