Critique of the South Sudan draft transitional constitution

By Lam Akol

June 30, 2014 – 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. SalvaKiirMayardit, the President of GOSS and Chairman of the SPLM, with heads of the other Southern Political Parties as members. Dr. RiekMachar, 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. SalvaKiir, 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.
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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