South Sudan NEWS PORTAL
By Dr. Santino Ayuel Longar (PhD), Juba, South Sudan
Thursday, May 28, 2020 (PW) —- Since 2005, South Sudan has governed itself using a number of ad hoc constitutional documents. The first document was known as the Interim Constitution of Southern Sudan (ICSS). This document had a full constitutional force from July 9, 2005, to July 9, 2011. The second document was known as the Transitional Constitution of the Republic of South Sudan (TCSS). Its legal force lasted from July 9 2011 to February 22, 2020. Following the formation of the Revitalized Government of National Unity (RTGoNU) in February, 2020, as a result ofthe 2018 Agreement between the Government and the rebels, a third document, known as the Revitalized Transitional Constitution of the Republic of South Sudan(RTCSS) came into force. Holding everything else constant, the RTCSS will have full constitutional authorityfor the entire duration of the Transitional Period, having come into effect on February 22, 2020, and is expected to last until February 22, 2023. Beyond the Transitional Period, however, the 2018 Agreement envisions the making of a more Permanent Constitution.
Chapter 6 of the Agreement—specifically from 6.1 to 6.16—mandates the Revitalized Transitional Government of National Unity (RTGoNU) to initiate and oversee the making of a more Permanent Constitution during the Transitional Period. While the Agreement uses the phrase “Permanent Constitution,” this piece adopts the phrase “more Permanent Constitution” to connote the fact that no constitution document is ever immune from being subject to reasonable amendments, however, “permanent” it may be.
Under the Agreement, the process of making the more Permanent Constitution will be animated by a number of legal and political principles such as the supremacy and sovereignty of the people of South Sudan; adoption of a federal and democratic system of government that reflectsSouth Sudan’s day-to-day realities, especially as regardsethnic and regional diversity; the internal political dynamics and the character of the people of the Republic of South Sudan; respect for communal rights and preservation of ethnic and cultural identities. The preservation of ethnic and cultural identities includes the right of communities to protect; promote and preserve their cultures, develop their language and cherish their historyas well as create a system of fair and equitablegovernance and participation of all citizens in the economic and political life of their country. It, therefore, seeks to constitutionalize popular participation in determining the destiny of the South Sudanese Republic.
The constitution-making process also seeks to prioritizeprojects such as State-building and social cohesionamong the people of South Sudan. This includesestablishing structures of governance; entrenchingsustainable peace and stability as well as protecting theterritorial integrity of the Republic of South Sudan. In creating structures of governance, the constitution-making process strives to adopt multiple centers of power and structures of decision-making as well as promote strict devolution and dispensation of resources to states and local governments.
Pursuant to the Agreement, the constitution-makingprocess is expected to be completed within the first 24 months from the commencement of the Transitional Period(February 22, 2020) and will come into effect prior to the end of the Transitional Period. This suggests that the more Permanent Constitution is slated to guide the elections at the end of the Transitional Period.
What is at stake, thus, is the determination of the futureand governance of the Republic of South Sudan and its people. Whatever South Sudan will become—including its ability to realize the aspirations of the people to adopt a system of a free, libera and democratic society—largely depends on the nature and content of the more Permanent Constitution.
This piece seeks to briefly examine the fundamentals and imperatives of South Sudan’s more PermanentConstitution.
2. The Nature and Fundamentals of South Sudan’s more Permanent Constitution
The nature, contents or fundamentals of any constitution vary from one country to another. This suggests that there is no universal template for making constitutions.
As used in the sense of the foregoing, a constitution is an instrument that establishes a legal relationship between a sovereign State and its citizens. It sets out conditions not only by which the State, through its directing and operatingminds (public officials), exercises governmental power. It also defines, in a more permanent way, the fundamental rights of citizens vis-a-vis the State. Once adopted, a constitution become a more transcendental law that cannot be easily altered, either by way of an ordinary legislative function or an executive authority, save as may be set out in a constitutional formula that calls for a broad-based participation of a population of the polity that a given it governs. In this sense, the amendment formula must also be constitutionally entrenched.
The above definition underscores two fundamentals of a constitution. First, a constitution must constrain the conduct of public officials by prescribing (often with the help of an enabling legislation) how these officials exercise governmental authority. Public authority, generally, must be exercised for the benefits of all citizens. This suggeststhat State officials must not exercise powers or perform tasks that the law does not prescribe or authorize them to perform. Second, a constitution must protect the fundamental rights and freedoms of individual citizens. In modern phraseology, these rights and freedoms are referred to as human rights.
The fundamentals of a constitution give rise to; seek to cross-fertilize; and balance two forms of constitutional moralities namely; the morality of law and morality of governance.
The morality of law seeks to protect and promote individual rights and liberties. It creates an exclusive zone of individual activity that remains immune from and is, thus, inviolable by, the State. Under the morality of law, individuals are entitled to exercise their rights and freedoms unless the exercise of such rights infringes upon the rights and freedoms of others or are of such nature as to violate public morals that are recognized by the Constitution or other forms of public law.
Besides circumscribing the scope of public power, the morality of governance, on the other hand, is limited to the pursuit of public interests. It does not only ensure that public officials do not do what the law does not permit them to do, it also obligates the State to treat all its citizens impersonally. That is, the State must treat all itscitizens equally before and under the law, irrespective of their political or religious persuasions or distinctions ordained by nature (such as being male or female, or being from a particular ethnic group). Construed as such, it is plausible to contend that the morality of governance essentially promotes the rule of law and mitigates the effects of arbitrariness that inheres in the exercise of State authority.
It stands to reason, thus, that in the event of any conflict between the two forms of moralities, the morality of law governs. What this means is that the fundamental human rights and freedoms supersede the pursuit of public interests. These goals are realizable if a constitution contains the imperatives of a good constitution.
3. The Imperatives of a Constitution
Because the constitution defines the relationship between the State and its citizens in a more permanent way, the making of a constitution and its amendments are not an ordinary political affair. An ordinary political affair, such as a party’s convention, is a partisan undertaking that only serves narrow ideological interests. Such interests often aim at capturing and retaining political power.
The primacy of a constitution over all other laws is that the constitution is held out as the supreme law of the land. This means that any law or its provisions that are inconsistent with the provisions of a constitution are null and void to the extent of that inconsistency. A constitution, as well, more permanently shapes and directs the lives of all the citizens.
A constitutional imperative is an indispensable element of a constitution. It is either a condition or a substantive characteristic of the final constitutional document.
Since a constitution is the supreme law of the land, the imperatives of a constitution are different from those of, say, a manifesto or an Act of parliament. For these reasons, a constitution-making process and its subsequent amendments are not an ordinary exercise. These processes must be undertaken in the form of a cross-sectional participation of all the people of a given polity. Doing so ensures that the ultimate constitutionaloutcome is a result of democratic negotiations, a balance of political or other interests among all citizens, in all their diverse backgrounds.
Against this backdrop, the following are some of the imperatives that must inform the constitution-making process in South Sudan.
(a) Popular Participation as an Element of Constitutional Legitimacy
One of the constitutional imperatives is that a constitution must command the acceptance or assent of all the people to whom it applies. This popular acceptance or assent is the essence of a constitutional legitimacy. In other words, a constitutional legitimacy arises when the constitution-making process enlists popular participation citizens in all their diverse backgrounds.
In light of this imperative, an argument can be made that the ICSS and TCSS were documents that lacked fullconstitutional legitimacy in South Sudan. That is becausethey were not drafted with the participation of cross-sectional representations of the people of South Sudan in their diverse constituencies. These two documents, each of which is almost an exact replica of the other, were drafted by elites for the elites. They only aimed at entrenching the interests of the political class in holding iron grips on public positions, with little in terms of allowingthe people of South Sudan to determine their political fateof their own country. In this regard, these ad hocconstitutional documents practically barred the people of South Sudan from shaping the destiny of their country, having vested almost absolute public power , in large part, in the executive.
To be sure, the ICSS and TCSS heavily vested State power particularly in the Office of the President. They created a system where there were no multiple centers of authority and, therefore, no layers or structures of decision-making. The resultant systems have been ones of democratic deficit and diminishment of popular participation in the socio-economic and political life of thecountry.
In essence, a constitution adopted with little or withoutpopular participation in shaping its outcome will not only miss out in terms of protecting the rights of certain constituencies. It will also lack constitutional legitimacybecause it is not a product of democratic negotiations and balance of political interests among of all the people it governs.
Understood in this sense, it is evident that the ICSS, and TCSS lacked constitutional legitimacy because they missed out on some of the essential elements listed in Article 6 of the 2018 Agreement, as outlined in Section 1 of this piece. Since constitutional legitimacy is an imperative of a good constitution, South Sudan’s more Permanent Constitution must enjoy the cross-sectional participation of all South Sudanese people.
(b) Constitution as an Iron Shield Against State Interreference with Individual Liberty
Another imperative of a good constitution is its ability to protect the zone of individual activity from State interference. This feature ensures that the government does not alienate its citizens from governance. Specifically, a State’s violation of ordinary people’s human rights, especially as regards their participation in the running of the economic and political affairs of their country, has been been the raison d’être for making of constitutions. Because States have historically been known for being the primary violators of people’s and human rights, the first constitutional or quasi-constitutional documents ever adopted were intended to address the issue of state invasion of the exclusive zone of individual activity. This was especially true in 1215 when English citizens rose against their King demanding of him tosurrender some of his legal powers to citizens. As well, the fear of too much State authority was one of the overriding reasons for the adoption of the U.S. Constitution. It also inspired the adoption of the French Declaration of the Rights of Man and the Citizen. Both of these constitutional declarations occurred in 1789. Historically, thus, a constitution has been a tool with which to roll back the invasive power of State authority.
In the context of South Sudan, it is least disputable that since 2005, the rights and freedoms of ordinary citizens have repeatedly been violated, contrary to the edicts of the social contract. As well, the ordinary people of South Sudan have consistently been alienated from participating in political processes, thus, have no ability to molding the affairs and destiny of the country they heroically fought for.
For this reason, the more Permanent Constitution of the Republic of South Sudan must create a system of governance that builds the country from the bottom up, not the other way around. Popular governance, not the rule of elites, is an imperative of a good constitution regardless of the type of the constitution that a country adopts.
(c) Type of the Constitution South Sudan Must Adopt: A Procedural or Prescriptive?
Another imperative of a good constitution is that every constitution must strive to frontally address the prevailingdomestic dynamics. Depending on the nature and history of each country, a constitution may be one of two types namely; procedural or prescriptive constitution.
A procedural constitution is one that defines the legal and political structures of public institutions. This includes setting out the legal limits of governmental power in order to protect and promote democratic processes and governance.
A procedural constitution is, by and large, more appropriate in situations in which it is difficult to reach an agreement over issues of identity but where it is possible to reach an understanding in limited areas; areas in whichpragmatic consensus by means of democratic procedures,especially for resolving those differences, is possible.
Under constitutional studies, the Canadian Constitution isoften held out as an archetype of a procedural constitution. That is because it does not proclaim a single vision of a good Canadian society. Instead, all it does is prescribe a minimum commitment by all the people to live together. The objects and purposes of such a constitution is to resolve common problems by means of political institutions and respect for democratic processes as well as appreciation of divergence of opinion. According to John Laws, the Canadian Constitution does not espouse any single philosophical or ideological principle upon which the Canadian society is premised. All it requires is the willingness to set aside immediate self-interest for the sake of overarching public and political interests.
A prescriptive constitution, on the other hand, is one that holds itself out as a social contract, a covenant between the State and its subjects in a way that places collective identity above and beyond all else. It, therefore, plays an instrument role in representing the ultimate goals and aspirations of all citizens. Such a constitution shapes the values and morality that undergird the historical struggle of its people and the foundation of its statehood. For this reason, a prescriptive constitution represents a collective vision of all its citizens. Such a constitution, thus,embodies the idea of a single people, a nation-state. In such a system, consensus, rather than democratic compromise, is critical for the pursuit of the goals that public authorities must strive to uphold and promote.
A prescriptive constitution may also be appropriate where a society is determined to search its soul with the view toreestablishing itself. following a tumultuous past. It signals a country’s rebirth. An archetype of a prescriptive constitution is the South African Constitution. After the fall of the Apartheid Regimein 1994, South Africa sought to rebrand and rebirth itselfby adopting a constitution whose moral foundation wasubuntu, a principle architectured on shared humanity andethical values.
Against this backdrop, it stands to reason that South Sudan, a country torn apart by centuries of oppressive foreign rule, internal colonialism and ethnic conflicts that border on genocides may want to embrace a procedural—not a prescriptive—constitution. That is because South Sudan is a country of several nationalities that havehistorically experienced difficult and challenged co-existence. The rationale here is that while harmony andmorality cannot be legislated, a forward-looking constitution that recognizes ethnic and regional diversity in its governance structures would operate to mitigate the effects of challenges of building a more cohesive State.
(d) Strong Separation of Powers
A good constitution must not only spell out structures of governance. It must also strive to ensure that each of the three arms or branches of government operate relatively independently. The doctrine of the separation of powers refers to the allocation of governmental functions or responsibilities of distinct organs of government.
In most countries, there are often three branches or arms of government, namely; the executive, judiciary and the legislature. The intent for the idea of the separation of powers is to mitigate the adverse effect of the concentration of powers by one arm of government. Separation of powers allows the three arms to eachprovide checks and balances vis-à-vis the other two.
Yet since 2005, the concept of the separation of powersappears to be non-existence in South Sudan, save on a more theoretical or abstract level. The relevant provisions of the ICSS and TCSS as well as RTCSS have no bearing on how each arm of the government performs its functionsin South Sudan. The first two concentrate governmental powers in the executive, especially the presidency. While the RTCSS purports to attenuate the powers of the president by requiring the President to decide on the basis of consultations and agreement with his five vice presidents, the legal effect of this requirement is not dissimilar to the effect of power concentration in the office of the President, as provided for in both TCSS and ICSS. Consequently, the judiciary and legislature continue to operate toothlessly as far as an effective exercise of their functions are concerned.
A more Permanent Constitution of South Sudan must ensure that the functions of each arm of the governmentremain inviolable in relation to extant invasive authority of the executive. The constitutional concentration of power in the hands of the executive in the last one and half decades has allowed the executive to do anything without accountability. Sovereign responsibilities of a society that aspires to be free, liberal and democratic in governance cannot be exercised by one organ of government. The constitution should ensure that no one branch of government dominate the other two. A country that allows concentration of powers in one organ runs the risk of being a dictatorship. This state of affairs operates to crowd out best ideas from being experimented in the course of governance.
For the separation of powers to be effective, thus, each branch should exercise its veto power in the event that one or both other branches have encroached on its core functions.
(e) Division of Powers: A Federal System
The 2018 Agreement between the Government and the rebels envisions a federal structure of governance that reflects ethnic, regional and cultural diversity among the people of South Sudan. This suggests that the morePermanent Constitution should spell out the division of powers. The idea of the division of powers aims at splitting and enumerating the law-making functions to be exercised by the federal government and states.
Division of powers is more effective when it ensures that certain powers are exclusively exercised by the federal government while others are exclusively exercised by the state government. For instance, in most federal countries, federal governments tend to exclusively exercise powers of foreign affairs, trade and commerce and defense, whereas state governments tend to exclusively exercise powers such as health, transportation, law enforcement, etc.
Where certain powers cannot adequately be exercised by one level of government without undermining the pith and substance or core functions of the other level, both levels may exercise such powers concurrently. The best examples of concurrent powers tend to be agriculture and education.
Where a constitution is silent as to the exercise of a certain power because such a power has notconstitutionally been allocated to either level of government, such a power is referred to as residual power. To resolve any unintended jurisdictional conflictover the exercise of a residual power, the courts have tended to hold that the level that initially exercised that power prior to the constitutional allocation of powers will displace the other level and exercise it.
The ICSS, TCSS and now RTCSS, have not been able to deal with exclusive separation of powers in South Sudan. That is likely because the current governance structure is based on a decentralized system of government. Since the more Permanent Constitution envisions the creation of a federal system, that reflects ethnic and regional diversity, the constitution-making process must ensure that the division of powers lies at its core. A relatively exhaustive list of division of powers is an imperative of a good constitution.
There may also be two forms of a federal system namely; horizontal and vertical federalism. When originally independent states come together to form a single federation, the resultant federal system is horizontal. In this system, only few powers are allocated to the federal government while states retain most of their original powers. This also means that neither the state nor federal government is supreme over the other. A vertical federalism, on the other hand, is a system in which an originally sovereign state creates more administrative units by way of devolving powers to these units. This often means that the federal government is always supreme over all newly devolved units. South Sudan may choose to adopt either vertical or horizontal federalism under the more Permanent Constitution.
In a constitution-making process, the foregoing issuesmust be determined by a body in which all the sectors of society are fairly and adequately represented. Adequate and fair representation occurs when the constitution-making body comprises of competent delegates from as diverse constituencies (ethnic, professional, political parties, etc.) as possible.
(f) Delegates to the Constitution-Making Process
As discussed in above, the making of a constitution is notan ordinary political affair that could be left to political parties nor to the ordinary function of the legislative branch. This means that in South Sudan the making the more Permanent Constitution may also not be beundertaken by a few hand-picked by the executive, such as the National Constitutional Review Commission. That is because the constitution-making process is a historic and momentous event that will determine the future and quality as well as the system of governance in South Sudan for many generations to come. This process should also not only be expected to be long. It will also be characterizedby spirited debates, acrimony and, ultimately,compromises, based on a balance of political interestsamong various ethnic, regional and ideological constituencies.
The body to be charged with the making of the more Permanent Constitution must, thus, reflect these diversesocio-economic and political backgrounds, ranging from ethnicity to various professional walks of life: farmers, teachers, academics (e.g. philosophers, political scientists, economists, lawyers), civil society and religious groups, civil servants, political parties and international partnersamong others. A constitution-making process that lacks the balance in terms of the cross-sectional representations of these constituencies is unlikely to reflect the collective will and aspirations of the people of South Sudan to whom it will apply.
(g) Demarcation of Internal Borders
Land disputes are among the most contentious issues in South Sudan. That is because the economic and political significance that land has gained in South Sudan since the days of the liberation struggle underscores why land disputes have suddenly become contentious or even explosive. The scramble for land in South Sudan since 2005 has given rise to an unprecedented level of land grabbing, fraudulent land transactions, ubiquitous land claims as well as jurisdictional conflicts, firstly among indigenous communities, secondly between local states and thirdly between states and the Central Government. All this adversely impacts not only on individual land ownership and private investment. They also lurk behind the cycle of violence that South Sudan has had to endure since 2013, largely due to lack of clear internal borders.
For this reason, it is incumbent upon the RTGoNU to take all reasonable and practical steps to physically demarcate internal borders as they stood on January 1, 1956, or mandate the constitution-making body to constitutionally create a sunset-commission that would be charged with the responsibility to undertake the same. Leaving internal borders undetermined would make the consolidation of South Sudan’s statehood very difficult.
4. South Sudan’s Current Socio-Economic and Political Evils
South Sudan’s more Permanent Constitution should also be cognizant of the nagging socio-economic and political evils that stand in the way of consolidating the world’s youngest country’s independence and statehood. These include some of the following.
Corruption is one of the most enduring existential threatsto the survival of the South Sudanese Republic. It manifests itself in a variety of dishonest and fraudulent forms such as when public officials take bribes; or arrogatepublic resources or award contracts to themselves or companies associating with them.
Because of this repugnant behavior, the Government of South Sudan has wasted so many opportunities and resources in the last two and half decades without tangible gains, even in critical areas such as healthcare, education, agriculture and physical infrastructure.
No area in which corruption is more of a norm than the oil sector where a number of officials including ministers,acting in cahoots with oil companies, tend to underreport production figures in terms of barrels per day. This enables them to divert huge monetary value of the underreported barrels to their personal accounts.
More importantly, as far as honoring the rights of oil producing communities and states are concerned, South Sudan has proven to be more unreliable than Khartoum. Under Khartoum, for example, the 2% share of oil revenues that were allocated to oil producing states were paid on the regular. Since independence in 2011, only one month’s 3% and 2% share of oil revenues allocated to oil producing communities and states respectively, pursuant to the Petroleum Act, have ever been submitted. Even for one month that has been accounted for, half of what oil producing communities and states were supposed to receive has been lost between the ministries of Petroleum and Finance.
Similar corruption practices have also been reported where timber and gold are produced in South Sudan.
Unless tackled head on, corruption is likely not only to lead to perpetual instability. It may eventuate in the balkanization of this young East African country. Corruption is an enduring socio-economic and political evil. Since it is an existential threat to the survival of the Republic of South Sudan, tackling corruption must be one of the overriding themes of the constitution-making process. During the liberation days, evils such as corruption were punished by firing squad. It was effective.
Is it time for South Sudan to bring back capital punishmentfor those who engage in theft of public resources? The constitution-making body will have an opportunity to debate and determine the matter.
South Sudan has never been at peace even prior to its independence in 2011. The 2010 general elections that resulted in both popular and individual discontent across the country had the immediate effect of producing rebelmovements which easily found refuge and sponsorship from Khartoum. As well, prior to the 2010 elections, there was what was known as the Big Tent Policy. This policy was championed by President Kiir, following the signing of the Comprehensive Peace Agreement (CPA) between the SPLM/A and Khartoum Government in 2005. The overriding object for this policy was to bring all South Sudanese people on board in order to secure a successful independence plebiscite that would later occur in 2011.
Under this policy, many militias, mostly civilians, with high military ranks were absorbed into the liberation army. These militias ultimately grew in ranks and outnumbered the liberation army both in rank and file and the officer corp. However, the inadvertent effect of this policy was its ability to incentivize rebellion, making it difficult for South Sudanese to build a stable and prosperous country.
In order to create South Sudan as a country of laws, rebellion must not be rewarded. To stamp it out, rebellion must be given a special place in the more Permanent Constitution. Punishing rebellion and rewarding loyaltywould operate to create a more promising political culture and stability.
(iii) Exclusion from Governance
Creating a more inclusive and equitable governance is a requirement not only of the fiduciary relationship between the State and its citizens. It is also an imperative of a free, liberal and democratic society. The concept of fiduciary responsibility imposes positive action on the State to protect the economic and physical security and wellbeing of all its people equally.
In South Sudan, however, many citizens fend for themselves on the margins of the South Sudanese State. This is the fate, for example, of many communities such as but are not limited to Jie, Kachipo, Anywag and the Bongo.
In order to fulfil the vision of a federal system that is cognizant of “ethnic and regional diversity,” the more Permanent Constitution must mandate the State to create a system of an inclusive and equitable governance so that minorities such as those listed above can enjoy the right of internal self-government.
(iv) Climate Change and Environmental Pollution
Climate change and environmental pollution are among humanity’s greatest existential threats or evils of this century.
In South Sudan, an irresponsible and unethical oil production approach that only prioritizes the bottom-line has become one of the pressing health hazards,especially to communities within oil producing regions. This has led to introduction of chemical contaminants intothe soil, water, air and other forms of natural environment. These contaminants have in turn made the environment quite unlivable. They have existentially threatened the wellbeing of humans and animals alike.
Besides abject poverty, local residents in oil producing areas in South Sudan have observed a higher rate ofinfertility than it historically been the case. Children, calvesand lambs are born with graphic deformities while cows, wild animals and birds are dying at an exponential rate. As well, the soil does not sustainably support plant life. For this reason, trees no longer grow in some areas of oil producing region, e.g. in central and northern RuwengAdministrative Area. Yet, the quality of the life of a nation is directly proportional to the quality of the environment.
Climate change challenges long-established livelihoods and threatens the ability of communities to economically sustain themselves. These threats mean more intercommunal conflicts and risks to long term political stability. A healthy environment protects not only current human life. It also protects the interests of posterity.
Construed as such, South Sudan must make the issue of climate change and environmental pollution a thematic part of the constitution-making process.
From the foregoing, it is clear that a constitutional document is often a result of democratic negations and mutual compromises among a country’s diverse constituencies. A constitution-making process that ignores the cross-sectional participation of the population of a given country lacks not only popular legitimacy. It also fails to capture the aspirations of all the citizens. In South Sudan, the final document, in the form of the more Permanent Constitution, must be a result of a balance of ideological, ethnic, regional and economic compromises.
This means that the constitution-making body must adequately and fairly represent all the people of South Sudan. Adequate and fair representation occurs when a constitution-making body comprises of competent delegates from as diverse constituencies as possible.
Finally, a constitution must address the socio-economic and political evils facing the country and the people to whom it applies. In South Sudan, these evils include corruption by public officials, rebellion (which helps facilitate entry into public offices on the part of those who rebel); lack of inclusive and equitable governance as well as existential threats arising from climate change and environmental pollution. South Sudan’s more Permanent Constitution must seek to address these issues.
South Sudan must seize this historic opportunity of making a more Permanent Constitution to chart a brighter future for itself and people so that it can take its rightful place within the society of sovereign and responsible nations.
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