INTRODUCTION
The Transitional ConstitutionFootnote 1 of South Sudan was a controversial text from the moment it was drafted and remains so since it became the official national law of the nascent state in 2011. This controversy stems from the manner in which it was drafted and adopted and the contentious provisions it contains. Written by a few legal novices handpicked by the government, and without much public consultation or participation, the constitution failed to fulfil the hopes and aspirations of the people of South Sudan, as it failed to establish the long and most widely anticipated democratic system of governance for a new nation. Instead, the constitution sought to concentrate political power in the national government, giving the president total power to command the nation's political affairs, including those of the sub-national governments, which, under the constitution, are supposed to operate at arm's length from the national government.
It is this fundamental failure of the constitution to establish an accountable democratic government and the absence of a system of checks and balances on the exercise of political power, that have led to the current political crisis and the unprecedented level of corruption in the country. However, this constitutional failure not only impacts on the attainment of democracy in South Sudan, but is also an impediment to the desperately needed development in the country. This is because, without an effective, accountable and transparent political system put in place through the constitution, as it is currently the case in South Sudan, the government finds itself less morally compelled to discharge its responsibilities to the people and deliver necessary services. This is one of the numerous reasons why it is too onerous a task for the government to fight and eradicate the corruption that is rife in the country.
It is quite confounding that the Sudan People's Liberation Movement (SPLM),Footnote 2 a movement that fought tenaciously against political oppression and injustice for two decades, appears to have lost its vision and abandoned the ideals for which it fought, such as freedom, justice and democracy. Indeed, it comes as a shock, not only to the people of South Sudan, but also to the outsiders whose unstinting support and indelible contributions made it possible for South Sudan to achieve independence, to see the country emerging under the SPLM as an oppressive authoritarian state with highly centralized political power.
These constitutional deficiencies, however, raise the question as to whether the country should start with a clean slate and write a new constitution, or whether the Transitional Constitution should be elevated to be South Sudan's permanent constitution. However, in considering the current state of affairs in the country and the level of the public's discontent with the Transitional Constitution, it would appear that the better choice would be to write a democratic constitution that will have to establish a new constitutional order and set the new tone for the country. It need not be emphasized that writing a new constitution would hold special advantages for the country. One obvious advantage is that it would, to a certain degree, break down the barriers of disunity among South Sudan's ethnic nationalities and bring them together to participate collectively in the defining intellectual process of devising a new constitution and, possibly, move forward in a more unified, tranquil and stable country.
The aim of the article is to raise awareness about the constitutional and political crisis that has befallen South Sudan. The article begins with an overview of the Transitional Constitution and discusses the politics surrounding it. It then examines the contentious issues contained in the Transitional Constitution and proposes how these issues may be addressed. In so doing, the article proposes that the solution to these issues, and indeed to the failed system of governance in the country, would be to write an inclusive and participative democratic constitution under which a democratic system of governance could be established in South Sudan.
THE TRANSITIONAL CONSTITUTION OF SOUTH SUDAN
The Transitional Constitution was drafted and adopted in 2011, following the results of the referendum which saw South Sudan secede from Sudan. It was ratified on 7 July 2011 by the South Sudan Legislative Assembly, which was renamed the National Legislative Assembly shortly after the declaration of independence. The Transitional Constitution came into effect on 9 July 2011, the historic day of the proclamation of independence, after being assented to and signed into law by His Excellency President Salva Kiir Mayardit, a liberator and patriot, who also makes history as the first president and founding father of the nation of South Sudan. It superseded the 2005 Interim Constitution of Southern Sudan (ICSS) and founds a presidential system of government in which the president is both head of state and government and commander in chief of the armed forces.Footnote 3
The Transitional Constitution was developed mainly to exit South Sudan from Sudan, setting out means for the newly founded nation to assume exclusive sovereignty and autonomy from its former enemy. It is called the Transitional Constitution because the country is still in the transitional phase. However, there is a possibility that the country may adopt a new constitution to replace the Transitional Constitution, though the form this new constitution would take remains unclear for the purposes of this article.
With history being our witness, the Transitional Constitution is the first constitution of South Sudan that officially recognizes and provides for equal and equitable representation in the national government for all South Sudan's ethnic communities. It declares the sovereignty of South Sudan to be vested in its peopleFootnote 4 and provides for a decentralized democratic system of government as the means by which South Sudan shall be governed, prescribing the rule of law as the guiding principle for the exercise of political power. Article 197 provides a flexible mechanism for amendments to the constitution, which requires a simple “two-thirds majority of all members of each House of the National Legislature sitting separately”. It mandates that the proposed amendment be introduced into the Parliament one month before it is to be deliberated.
Despite being the founding law of South Sudan, the Transitional Constitution has not been well received since its inception in 2011. It has been the subject of heated debate within South Sudan's intellectual forum and beyond. Much of what has been said relates to the way the constitution was drafted and adopted and the seemingly intractable political crisis it has created for the country. This article reflects on this discussion and the concerns of some of the aggrieved members of the public.
Politics surrounding the Transitional Constitution
The politics surrounding the Transitional Constitution relate to the manner in which it was drafted and adopted in 2011 when it declared South Sudan an independent and sovereign nation. From the day it took effect as South Sudan's national law, the Transitional Constitution has come under immense criticism from members of the general public who claim that it was drafted and adopted in a non-inclusive way, hence departing radically from modern democratic constitution-making processes.
The SPLM in particular bears the blame for this, for it was accused of having manipulated the drafting process and undermining public participation. President Kiir's effort to undermine the resolutions on South Sudan Dialogue and the South Sudan Political Parties Leadership ForumFootnote 5 as reported during the drafting of the constitution, for example, attest to this alleged manipulation of the drafting process by the SPLM. The implications from the president's position are that it suppressed open dialogue on the constitution, and silenced and prevented various opposition parties and the general public from participating in the drafting process and giving their views.
It is unclear what the SPLM's motives were in undermining public participation during the drafting process, but concerned opinion commentators of various professional backgrounds have claimed that the government's intention was to make the Transitional Constitution the country's permanent constitution, as it provides the government with more open-ended powers. However, given current realities about the SPLM, this assertion may not be far from the truth. It is not the author's intention to antagonize the government in any way, shape or form, but the reality is that the SPLM is widely being seen as increasingly degenerating into an oppressive authoritarian government, reflecting some of the shoddy and failed systems of government on the continent.
Still, this is not the only problem haunting the SPLM; things get much worse than this for the SPLM. The country has already joined the league of failed nations: a failure wholly attributable to the SPLM's mismanagement of the country as the national government of South Sudan. This is not something of which any patriotic South Sudanese should be proud and, as such, the SPLM must effect necessary changes to steer the country in the right direction and restore the dignity and glory of the people of South Sudan, or forfeit the sovereign right to rule the country.
However, what this perceived manipulation of the drafting process by the SPLM particularly does is usurp the constitution of its legitimacy and tarnish the SPLM's integrity as a government. A constitution is a public good that should only come into existence through the general public's consent and approval, through the usual process of referendum. It cannot, in that sense, be imposed on people, because doing so would deny the constitution its sanctity and legitimacy.
Another point worth noting is that there was really no political exigency to draft and adopt the Transitional Constitution in the first place. The ICSS, which the Transitional Constitution replaced, already comprehensively covered important national issues and incorporated all social and cultural values, civil rights and liberties that needed to be constitutionally recognized and protected, including the freedom of the press. It provided for necessary but reasonable governmental powers, including the composition of the government and state organs, the independence of the judiciary, and the pursuit and protection of the rule of law and democracy.
Most of all, the ICSS had anticipated and provided for how post-independence issues should be dealt with. It declares in article 208(7): “[i]f 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.”
As it reads, this text in no way suggests that the ICSS was not designed to withstand independence. For that reason, the ICSS should have been elevated to be South Sudan's permanent constitution. In fact, the Transitional Constitution is similar to the ICSS in all its provisions except article 101(r) and (s), which create new powers for the president. So, given the major similarities between the two documents, it is unclear what prompted the need for a new constitution to be adopted. It can only be speculated that the government may have felt the need, whatever the need of the day may have been, to have these powers included in the new constitution, which may not have been possible under the ICSS.
For all we know, the inclusion of article 101(r) and (s) in the Transitional Constitution has not brought success for the constitution but, if anything has been a success for the constitution under this provision, it is none other than the entrenchment of a single party authoritarian state. The article reflects further below on the nature and practical effects of article 101(r) and (s).
Contentious issues contained in the Transitional Constitution
As mentioned at the outset, the Transitional Constitution contains a number of serious contentious issues that have made its implementation and acceptability very difficult for the people of South Sudan. One of the obvious contentious issues is to be found in article 101(r) and (s), which contains powers allowing the president to remove an elected state governor, dissolve a state Parliament and appoint a caretaker governor “in the event of a crisis in the state that threatens national security and territorial integrity” of South Sudan.
On the face of it, article 101(r) and (s) does nothing but create a major division within South Sudan's intellectual community and even among senior officials within the incumbent party, the SPLM. The proponents, on the one hand, maintain that “the use of these powers is conditional and only applicable where the national security and territorial integrity of South Sudan are threatened”Footnote 6 by a crisis arising within a state. The opponents, on the other hand, deem these powers “susceptible to abuse”Footnote 7 since the subject matter to which they apply is not defined in the constitution, and they argue that the articles should be repealed forthwith from the constitution.
In the author's view however, article 101(r) and (s) poses more grave dangers to South Sudan's developing political system and governance than just the perceived susceptibility to abuse. In the absence of clear textual evidence defining the type of crisis that article 101(r) and (s) pre-empts, the provision creates three notable dangers for the country. First, it transgresses the decentralization and devolution of powers principle in the constitution, under which the ten states should be politically independent, each with its own government, powers and Parliament. Secondly, it undermines the democratic process in the states, because it subverts the will of the people of the states to remove their state governors through an independent electoral process and makes the state governors answerable to the president, not to their respective constituents. Thirdly, the provision undermines the rule of law because it accumulates political power in the hands of the president without providing rational and justifiable bases for the exercise of these powers.
These are unacceptable dangers, which call upon the government of South Sudan (GoSS) to show real leadership and take a long, hard look at article 101(r) and (s) and make necessary amendments. The purpose and meaning of these two sub-articles are obscure. The idea of “a crisis arising out of a state” breeds confusion for the country, for the constitution does not specify any conditions that would constitute a crisis that may be clearly identified as threatening the sovereignty and territorial integrity of South Sudan. The constitution leaves it at the behest of the president personally to determine the conditions for which these powers are exercisable. This is dangerous, insofar as it renders the law open to misinterpretation, misuse and abuse.
It is apparent that the president as a fallible political being can sometimes, if not always, be swayed by his own personal and political standings to act arbitrarily in exercising these powers. This is why it is critical that the conditions giving rise to the said crisis be defined in the constitution, so that the controversies and complications that arise in the implementation of article 101(r) and (s) can all be avoided. Unless and until this is done, article 101(r) and (s) remains flawed and out of the character required of a provision of general law, and thus untenable.
Recent developments: Do they shed light on the nature of the crisis anticipated by article 101(r) and (s) of the Transitional Constitution?
Since it came into effect in 2011, President Kiir has employed article 101(r) and (s) more than twice to remove sitting state governors. This article will consider two state governors who were removed from office by President Kiir using article 101(r) and (s) to help analyse whether these cases shed light on the nature of the crisis anticipated by these provisions.
The first governor to fall victim to these powers was Chol Tong Mayai of Lakes State. In an act which was widely condemned as politically farcical, President Kiir issued an unexplained presidential decree under article 101(r) relieving Governor Chol and appointing a caretaker governor, Matur Chut Dhuol, in accordance with article 101(s). There was a public outcry about Governor Chol's removal, that it was both unconstitutional and undemocratic; however, to his credit, the president justified his decision as necessitated by the “doctrine of necessity” and therefore in effect constitutional and legally warranted. The doctrine of necessity renders lawful that which is unlawful, if it is in response to a need to act to rescue a situation and restore orderFootnote 8 as a matter of political exigency.
As understood, however, what was characterized as “necessity” in Lakes State were the interminable inter-communal fights and conflicts, which are almost endemic in South Sudan. Hence, the justification behind President Kiir's decision to remove Governor Chol on the basis of the doctrine of necessity in Lakes State was simply unwarranted and remains unsubstantiated inasmuch as it remains unexplained and wanting for the people of Lakes State. The issue of ethnic conflict is a national issue that the GoSS has failed to address since it officially assumed office in 2011 as the national government of South Sudan. Of course, the issue does have the effect of causing insecurity and unrest, but only in isolated parts of the country. The key question, however, is how it can or should be addressed. Removing a democratically elected state governor for what is apparently a national issue is surely a politically miscalculated approach and equally a blunt instrument, to say the least. What is more, the insecurity for which Governor Chol was removed remains uncontrollable in Lakes State, as per recent media reports.Footnote 9
The major concern, however, is that elections have not been held since Governor Chol's removal on 21 January 2013. Under article 101(s) of the Transitional Constitution, elections are to be held precisely 60 days after the removal of a governor. It is now almost four years since Governor Matur was installed and elections have still not been held. This is clearly in breach of the law, because the 60 day caretaking period has long since elapsed and Governor Matur is still sitting and serving as the governor of Lakes State.
It is utterly perplexing why the president acted so swiftly to remove an elected governor in what he saw as a necessary move to rescue the situation and restore order, but remains adamant in ensuring that the democratic process is followed through so that the people of Lakes State are, once again, given a chance to exercise their democratic right and elect their state governor. Perhaps there are tactical or logistical reasons associated with this delay in the elections. Notwithstanding the cause for the delay, it remains an indefensible breach of the constitution to delay elections beyond the prescribed period, if the constitution is to be observed and enforced accordingly as the paramount law of South Sudan. It is not only unconstitutional that Governor Matur is holding office beyond the prescribed period as a caretaker governor, but this undermining of the constitution, strictly speaking, sends the constitution into desuetude.
The second state governor to fall victim to article 101(r) of the Transitional Constitution was Taban Deng Gai of Unity State. In the same way that he deposed Governor Chol, President Kiir, perhaps this time for different reasons, employed article 101(r) again to relieve Governor Taban and appoint a caretaker governor, Nguen Monytuil Wejang, pursuant to article 101(s). Since then, no elections have been held as stipulated by article 101(s), and Nguen continues to serve as the governor of Unity State, except only for the interregnum period of December 2013 when he had to flee for his safety after rebels stormed and captured Unity State in their spirited effort to unseat President Kiir in the most atrocious civil war that South Sudan has experienced as a nation.
There was no reference to the doctrine of necessity in Governor Taban's removal, but there were rumours that he was intending to be Dr Riek's running mate for the presidency of South Sudan, for which elections were scheduled to take place on 9 July 2015 but have been deferred due to the insecurity in the country and unmet constitutional / electoral requirements. For the sake of clarity, Dr Riek is the former and first vice president of South Sudan, who was sacked by President Kiir in July 2013 under the guise of reshuffle for a leaner government. He currently leads the Sudan People's Liberation Movement - In Opposition (SPLM-IO) as a rebel leader. However, as with the removal of Governor Chol, the removal of Governor Taban remains unexplained to the people of Unity State, calling into question its constitutionality and political legitimacy.
As to the question asked above as to whether these two rather extraordinary developments shed light on the type of crisis that article 101(r) and (s) pre-empts, it takes little reflection to discern the answer as an unequivocal no. If these two developments shed light on anything, it is that article 101(r) and (s) supplies the president with the power to hire and fire state governors as he sees fit. In fact, the removals of Governor Chol and Governor Taban were both seen as politically motivated, because the two men were alleged to have pledged their full support for Dr Riek when he officially declared his intention to run for the presidency of South Sudan in 2013.
However, the overall effect of these untrammelled powers is that they leave no room for the states to democratize. Effective democratization in the states requires a total absence of political interference in the states’ democratic processes from the national government. It need not be stressed that the legitimate source of democracy in the states, and in South Sudan as a nation, is the will and consent of the people of the states as sovereign. This is what the government in the capital, Juba, need not only recognize but respect, uphold, protect and promote at all costs.
The people of the states should have the inalienable democratic right to elect their state governors on the basis of their competing philosophies, ideas and policies. This is the most fundamental democratic right that can neither be legislated away from the people nor be subject to any overriding will of an individual, because doing so would simply truncate democracy. It seems necessary to emphasize that the only overriding will in South Sudan as a democratically aspiring young nation is the will of the people as sovereign, not of the president.
WHAT IS THE SOLUTION TO THE CONSTITUTIONAL PROBLEM IN SOUTH SUDAN?
So far, this article has discussed the contentious issues inherent in South Sudan's Transitional Constitution and the politics surrounding it. The key question that remains to be answered, however, is how these contentious issues can be resolved. What is the solution? Before tackling this question, it is important to appreciate the type of governmental system that is in place in South Sudan, because it is only then that a solution can be considered.
South Sudan is being governed on the basis of a decentralized system of government. This is reflected in article 161(1) of the Transitional Constitution, which acknowledges the territory of South Sudan as comprising ten states and having a decentralized system of government. Article 47 further provides that “South Sudan shall have a decentralized system of government” with three levels of government: national, state and local.
However, what the constitution does not appear to stipulate are the powers of the state governments. This is unusual because, in a decentralized system of government, the sub-national governments are normally devolved revocable powers, either through the national constitution or through a separate statute. Article 48, which is the only provision on the devolution of powers in the Transitional Constitution, does not stipulate devolution. It merely acknowledges the shared responsibility between the national government and state governments in promoting “the welfare of the people and protecting their human rights and fundamental freedoms”. It states that the state governments are to cooperate with the national government in the “pursuit of good governance through democracy … and the rule of law”, among other things. However, it does not stipulate what powers the state governments have or should have under the constitution to discharge their functions. Furthermore, based on the author's research, there does not appear to be a separate statute containing such powers.
Despite the lack of any provisions in the constitution regarding the states’ political powers, it is consistent with a decentralized system of government that the central government, which in the case of South Sudan is the president, retains extensive powers that allow it to enjoy ascendancy over the political affairs of the sub-national governments. Hence the reason why the president of South Sudan has the overriding power to remove a democratically elected state governor and appoint a new governor, as and when he deems it necessary.
However, in considering the current state of affairs in the country and the uncertain future the country faces, it is clear that decentralization, as the political system of government in South Sudan, has failed the country. It has failed the country for the very fact that it has not allowed for the creation of an effective democratic government and the development of the rule of law, among other things. What we have witnessed so far under this system of government is the heavy concentration of political power in Juba and the emergence of a hyper-sensitive and intolerantly muzzling authoritarian government: a government that is opposed to almost every principle of good governance and free society. The appalling human rights conditions in the country and the targeted killing of journalistsFootnote 10 and silencing of dissidents speak volumes about how out of touch and brutal the government of South Sudan has become.
It is also the nature of this system of government that has encouraged the corruption that is endemic in the country, because it does not provide an avenue where citizens can hold the government to account for its corrupt practices. Again, this constitutional failure is attributable to the SPLM for opting for naked power over the needs and aspirations of the people of South Sudan. Arguably, things could have been significantly different had the country adopted a democratic constitution.
The solution to this failed system of government in South Sudan and, indeed, to resolving the contentious issues outstanding in the Transitional Constitution, in the author's view and, in fact, in the view of most learned South Sudanese, requires a genuine federal system of government. It requires a genuine federal system of government because a federal system would ensure an effective constitutional division of sovereignty and fiscal powersFootnote 11 between the national government in Juba and the state governments. Under a federal system, the state governments can have a constitutionally entrenched political autonomy and powers that can never be unilaterally revoked by the national government, except by a mutual agreement.Footnote 12 The president, under such a system, can never have powers that allow him effectively to override the will of the people and singlehandedly remove a democratically elected state governor.
In fact, the discussion of a federal system of government for South Sudan is not unheard of for South Sudanese. Most, if not all, South Sudanese have been calling for a federal system of government right from the moment the country emerged as autonomous, but it seems that their calls fell on deaf ears for the political tyros in Juba. This discussion was initiated and spearheaded by the southern states of South Sudan, representing an area known as Equatoria under the South Sudanese typological geographical division of the country. The idea recently surged and gained substantial support in the country when the rebel leader, Dr Riek, availed himself of it and made it one of the top objectives of his movement, although the chances of winning the military war and the political argument remain highly uncertain for him.
Why do the people of South Sudan prefer a federal system to decentralization?
There are multiple reasons why the majority of people of South Sudan prefer a federal system to decentralization. One of the obvious reasons is that a federal system, particularly an ethnically based federal system, suits their heterogeneity, to put it bluntly. An ethnically based federal system can provide South Sudan's ethnic nationalities with equal and equitable representation within the provinces of regional governments, as well as some form of political autonomy under the umbrella of the national system.
However, this article does not argue for South Sudan to adopt an ethnically based federal system, for the simple fact that ethnically based federal systems have not been successful in promoting national cohesion, peace and stability. Recent studies and analysisFootnote 13 conducted on this topic show that an ethnically based federal system increases ethnicization, resulting in the virtual disintegration and collapse of a nation. Our neighbouring country, Ethiopia, provides us with a practical example on this point. Since the introduction of ethnically based federalism in Ethiopia in 1991, conflicts of an ethnic nature have dramatically increased in the country, all of which being products of the ideology of ethnically based secessionism enshrined in the Ethiopian Constitution.Footnote 14 Zahorik and Teshome report that there have been “28 ethnic conflicts”, all told, since the creation of ethnically based federalism in Ethiopia in 1991 and that “[u]niversities and schools have … become the center of ethnic conflicts and are frequently closed due to ethnic clashes” and “ethnic minorities are being expelled from various regions due to ethnic conflicts”.Footnote 15
Furthermore, it is this ethnically based federalism that is the cause of various secessionist movements in Ethiopia, such as the Oromo Liberation Front, Ogaden National Liberation Front and Western Somali Liberation Front. As the names suggest, all of these are ethnically based movements with one overarching objective: individual secession from Ethiopia on the basis of ethnic composition and sovereignty. If all these secessionist movements were to get their way and become what they intend to be, the result would be the total disintegration and collapse of Ethiopia as a nation, simply because it would set a precedent for the remaining ethnic communities in Ethiopia to follow suit.
This type of ethnically based federalism with all its known downsides is not something that South Sudan can afford, especially at these trying times. The country is already struggling to address ethnic related issues and dire political crisis; adopting an ethnically based federalism would only make a bad situation worse. It would not help to foster the national bonding factors such as peace, unity and stability. South Sudan must learn from Ethiopia's experience and have an open public discussion about the risks associated with an ethnically based federalism, support for which appears to be gaining an unstoppable momentum in the country. In considering the institutional incapacity of the government of South Sudan and the ever rising ethnic tensions in the country, the risks of having an ethnically based federal system in South Sudan outweigh its potential benefits, rendering it unpalatable.
The type of federal system that this article advocates, is the traditional territorial and democratic federal system mostly found in western democracies.Footnote 16 That is, one that divides the national territory into geographical zones on the basis of statistically defined populations, not on the basis of ethnic autochthony. The idea behind this proposition is to address the issue of the concentration of political power in Juba and to redefine the relationship between the national government and state governments.
The challenge that remains to be confronted, however, is how to bring about a federal system of government in South Sudan. The traditional way in which federal systems have been created has been through a national federal constitution that expressly declares a country a federation and divides the national sovereignty and territory between the national government and the sub-national governments. Ethiopia, again, provides an instructive case for South Sudan, not in the sense of being an ethnically based federal state, but in the sense that the federation has helped provide and ensure an effective division of political power between the federal government and state governments.
For example, after getting rid of a despotic government in 1991, the Ethiopian people, under the wisdom and guidance of the Ethiopian People's Revolutionary Democratic Party, created a federal democratic state of Ethiopia by adopting a new constitution that establishes the country as a federation of nine states.Footnote 17 This is stipulated in article 1 of the Ethiopian Constitution, which states: “[t]his Constitution establishes a federal and democratic state structure”. In delineating the provinces of political power, the constitution declares that the state governments shall have supreme power to govern themselves and that the federal government shall respect the powers of the state governments and vice versa.Footnote 18
It is from such a model of founding a federal system of government that the South Sudanese should find inspiration and enlightenment to create their own federal system of government. The majority of the learned South Sudanese hold the view that, in order to address the failed system of governance in South Sudan, a new constitution that establishes the country as a federal state and lays down the principles for the establishment of a new social and political order, needs to be written from scratch. It should be emphasized at the outset that, in order to ensure legitimacy for the new constitution, the process of drafting it would need to be designed and led by a constitutional assembly, elected by the people of South Sudan, not a group of individuals handpicked on the basis of their allegiance. To this end, this article now reflects on the process of drafting a new constitution in South Sudan.
DRAFTING A DEMOCRATIC CONSTITUTION IN SOUTH SUDAN
Traditionally, drafting a new constitution consists of two parts: the process by which views are solicited on the content of the constitution and the actual process of writing the constitution.Footnote 19 Both processes are usually undertaken by an independent body, generally called a commission, made up of experts from various fields of study such as law, economics, political science and public administration.Footnote 20 Chapter II of the Transitional Constitution provides how the process of drafting a permanent constitution shall be undertaken. It provides for the establishment of a National Constitutional Review Commission (NCRC) and specifies the competence, expertise and experience required for NCRC members.Footnote 21
The NCRC has been established as stipulated in the Transitional Constitution and is currently in the process of drafting a permanent constitution for South Sudan. However, there is a general concern in relation to how the NCRC was constituted. It is understood that the members of the NCRC were appointed by the president of South Sudan in consultation with South Sudan's political parties and stakeholders. This is one aspect of the process that is already undemocratic, because it departs from the modern constitution-making process whereby an ad hoc constitutional assembly is elected by the people to promulgate the law in accordance with the views of the general public.
South Africa, a country with a very similar political history to South Sudan's in terms of its struggle against oppressors, provides a practical example on this point. For example, after overcoming the tides of apartheid and oppression in 1994, the people of South Africa, under the guidance of the then interim government, embarked upon the honourable task of founding a more unified nation and elected a Constitutional Assembly that facilitated the process of drafting a new constitution and undertook public education.Footnote 22 Having been an independent and adequately resourced body, the Constitutional Assembly was successful in facilitating the process and educating the public. It was reported that over 70 per cent of South Africans participated in the process and that the assembly received two million submissions from the public, which resulted in a document that resonated very well with the publicFootnote 23 and is also regarded as a model text on the continent.Footnote 24
The appointment of NCRC members by the president not only departs from this established and widely accepted practice of constitution-making, but also compromises the independence of the NCRC members. This is simply because, if the president has the power to appoint, it follows in the same vein that nothing can prevent him from wielding the same power to influence or in fact manipulate the process. It is pretty obvious that Salva Kiir, as a supreme commander who is wont to giving orders and decreeing every political decision he makes, would want the law to be written in a particular way that serves his personal interests, gives his actions the blessing of the law and subverts the will of the people. That would simply be a continuation of the patterns of unhealthy practices that are presently occurring under the Transitional Constitution.
The South Sudanese must not allow their hard won sovereign right to be trumped by individual whims and subjected to some form of arbitrary and authoritarian government. Such likely woes must be confronted and subdued from the outset, if the South Sudanese are to remain free as a people and have a happy and stable nation. What is needed for the new constitution-making process in South Sudan is a genuinely independent constitutional assembly, elected by the people of South Sudan, to promulgate the law in accordance with the popular wishes of the populace.
Public participation in the constitution-making process
Public participation has become an indispensable part of the modern constitution-making process and an inalienable right of citizens. Because the source of public power in modern societies is believed to be the people, public participation in the constitution-making process not only gives the people ownership of the process and of the final product, it also gives the constitution its legitimacy and acceptability.Footnote 25 However, this inherent right, the right to participate in the constitution-making process, not only exists under states’ domestic laws, it is also recognized and granted under international human rights instruments, such as the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966. Article 25 of the ICCPR, for example, specifically states that “every citizen shall have the right and the opportunity … without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through chosen representatives”.
The phrase, “to take part in the conduct of public affairs” in article 25(a), was interpreted broadly by the UN Committee on Human Rights in the case of Marshall v Canada Footnote 26 to include a right to participate in the constitution-making process. The Mikmaq tribal society brought this case against the Canadian government, claiming that they had been excluded from participating in the “constitutional conferences” by the government and that the exclusion violated article 25(a) of the ICCPR and infringed their right “to take part in the conduct of public affairs”Footnote 27 as citizens of Canada. The committee interpreted the constitutional conferences to constitute “conduct of public affairs”, but found that no infringement had occurred, because participation in and representation at the conferences did not appear to have been subjected to unreasonable restrictions by the Canadian government.Footnote 28
This example case, together with the international legal instruments mentioned above, reinforce the idea of public participation in the constitution-making process as a fundamental human right that can neither be denied to people, nor subjected to any restrictions by government. It confirms the idea of people being sovereign in any political process. However, aside from the legitimacy that public participation gives the constitution, participation also builds confidence and trustFootnote 29 in the people in the government, because it educates the people on matters of national importance and gives them a sense of ownership of the constitution. One of the many reasons why the Transitional Constitution is so unpopular with the general public of South Sudan is because the people do not feel a sense of ownership of it, as they did not share in its authorship. Only a new democratic constitution made through an inclusive and participative democratic constitution-making process will help restore the faith of the people of South Sudan in the constitution.
It is said that “a democratic constitution is no longer one that establishes democratic governance, it is a constitution made in a democratic process”.Footnote 30 This claim is based on the “belief that without the general sense of ownership that comes from sharing the authorship” of the constitution, the “public will not understand, respect, support and live within the constraints of constitutional government”.Footnote 31
But what does public participation really mean? There are many facets to public participation, but the concept is generally taken to mean voting by the populace on some of the key aspects of the constitution-making process, such as electing a constitutional assembly and ratifying the constitution through a referendum.Footnote 32 Giving the public the chance and sufficient time to comment on the draft constitution is another feature of public participation.Footnote 33 It is no longer the practice that a constitution be drafted by experts and presented to the public only for approval. It is now a requirement in a modern democratic constitution-making process that, in order for the people to have some level of understanding of the process, and to realize their political rights and the roles they can play in the process, they must be educated.Footnote 34
The 1994 South African constitution-making process, for example, was successful because it involved a high level of public education. Public education was undertaken in various forms, such as a media and advertising campaign using newspapers, radio and television and public meetings. The campaign pitch, as reported in various news outlets, reached over 70 per centFootnote 35 of the South African population. The Constitutional Assembly received two million submissions from individuals, advocacy groups and professional associations,Footnote 36 which the assembly aggregated and incorporated into the final text, hence producing a document that is reflective of the views, values and beliefs of South Africans.
The setback for the constitution-making process in South Sudan, however, is that the government has a limited financial capacity adequately to fund the process. With the “payroll economy” and funding of a war that is too costly and other priorities, the government is left crippled in its meagre resources to meet this responsibility. However, this is an area where seeking financial assistance from external sources, such as the international donor community, is necessary, although that may come at the expense of losing control of the process,Footnote 37 as the sponsors may want to have their views represented in the process and have some level of influence. It should be noted however that the possibility of obtaining funding from external sources depends on how the process is designed and facilitated. If the process is well designed and a realistic estimate of the cost of the process is made as early as possible, it is often the case that the international donor community will assist.Footnote 38
CONCLUSION
This article has sought to explain the constitutional failure in South Sudan and the resultant political crisis. In particular, it has identified the dangers associated with article 101(r) and (s) of the Transitional Constitution, which gives the president power to remove an elected state governor. The article has argued that these provisions not only transgress the political autonomy of the state governments, they also impede the attainment and maintenance of democracy and the rule of law in South Sudan. In conclusion, it has called for the adoption of a new constitution and a federal system of government as the solution to the constitutional failure and concentration of political power in the capital, Juba.
