By Beny Gideon Mabor
This policy brief underlines an overview on the development of a permanent constitution before and after the conflict in South Sudan. It will also discuss pros and cons of modalities agreed to produce the permanent constitution vis-à-vis the concept of people-driven constitution through supreme will of the people. Prior to the emergence of the peace deal in August 2015, which carries some legal superiority over any pre-December 2013 institutions and legal framework including the Transitional Constitution of the Republic of South Sudan 2011, there was an existing institutional mechanism for permanent constitution making which was interrupted by the coming into force of the new political order that specifically proposes institutional reforms including new journey for permanent constitution. The paper will offer emerging realities of the constitutional development contrary to the political or elites perceptions on the constitution making and finally provide policy options necessary to begin political and democratic reconstruction of a post-conflict South Sudan.
The aborted birth of a permanent constitution for South Sudan started under midwifery of the National Constitutional Review Commission NCRC established under article 202 of the Transitional Constitution, 2011. Article 202 subsection (6) and (8) of the transitional constitution mandated the NCRC to “review the Transitional Constitution and collect views and suggestions from all the stakeholders including any changes that may need to be introduced to the current system of governance and conduct a nation-wide public information programme and civic education on constitutional issues”. The end game of these terms of references was to produce zero draft constitutional text.
The second step was to convene a national constitutional conference as provided under article 203 of the constitution. The memberships of the conference was to be drawn from all sectors of South Sudanese society from political forces, to civil society, youth, women groups, faith based institutions, traditional authorities, professional associations and people with special needs amongst other categories to deliberate and approve the constitutional draft text. However, the constitutional text was to be tabled before the then National Legislative Assembly NLA for deliberation and passage after which the same shall be presented to the President for assent and it becomes law. That was pre-December 2013 labor pain for delivery of a constitution but later aborted in the process by choosing to kill each other than embracing the long-awaited birth of a constitution.
Fortunately or unfortunately enough, the above numerated legal processes are no more in existence. The peace agreement came with its own terms and conditions for the making of the permanent constitution in a rather complicated way unlike the former procedure where relative consultations was to be sought. Chapter six article 1 (2) of the peace agreement provide inter alia, that the Transitional Government of National Unity referred to as TGONU, shall initiate and oversee a permanent constitution making process during the transitional period, including but not limited to considering supremacy of the people of South Sudan alongside their contested demand for a federal democratic system of governance that reflects the national character of South Sudan.
The second parameter is that the Transitional National Legislative Assembly TNLA, shall within the first six months of the transitional period enact a legislation to govern constitutional making process, provided that such constitution making is accomplished within 18 months following the establishment of the transitional period in order to guide elections toward the end of the transitional period. In a very positive move, the peace agreement recognizes the work of the previous NCRC and therefore allow its reconstitution on new basis with new competent human and material resources to engineer the process of the constitution making.
It is provided under chapter six, article 1 (5) and (8) of the peace agreement that “the NCRC shall be appointed by the executive after adequate consultation with all keys stakeholders including but not limited to political parties, civil society organizations and faith-based groups for their view to prepare draft constitutional text, however the process of appointment shall be defined in the reviewed and enacted legislation governing the constitution making process.
In a similar term, the zero draft constitution that will be produced by the reconstituted NCRC shall be presented to a national constitutional conference whose memberships this time round shall be elected representatives, in a manner to be determined again by the long awaited legislation. Thereafter, the adopted constitutional text shall be presented by the Minister of Justice and Constitutional Affairs to the Constituency Assembly for deliberation and adoption. Of course South Sudan has no constituency assembly either. As a result, the parties to the peace agreement agree under the provision of chapter six article 5.5 that the “Transitional National Legislature shall be transformed into a constituency assembly on the first date of the 27 months of the transitional period for the purposes of passing the constitution after which it shall be dissolve preceding elections”. This is now the journey for permanent constitution making. Although the dye is cast, yet the peace agreement or the transitional constitution, 2011 are not carved in stone, but subject to amendment if need arises.
New Realities of Constitutional Development
After this literature review of the two processes of constitution making, South Sudanese are still left in a limbo to know the rightful architecture for constitution making between the pre-December 2013 arrangement and the current one brought about by the peace agreement. From my personal point of view as an individual, I still believe that the pre-December 2013 charter for constitution making was the rightful and inclusive procedure to make a long-lasting flexible constitution. In my view, some principles on the parameters of the permanent constitution under the peace agreement were push down my throat and others during the negotiation, but had to bitterly swallow them that way not only in the interest of peace, but the two major partners-the government of South Sudan and SPLM/A-in-opposition were in agreement. My argument at the negotiating table was just a cry of the poor that no one pay attention.
With this peace agreement, a golden opportunity is avail to answer the above mentioned questions and many more coming in the production of this governing legal instrument. Four years down the line, South Sudanese are still asking question of what type of constitution is really needed in South Sudan. So far, few actors including civil society groups and women networks attempted to highlight these principles of a needed constitution, some of which will appear here in support of continue search for permanent constitution. To get what type of constitution is desirable, it must be noted to know how and why constitution in the first place is made? And the answer is that constitution is made as a result of peoples’ decision to make a break from the bad past and lastly constitution is also made when people say enough is enough from the treatment of political and military kleptocrats of a given country.
In South Sudan, both situations have evidently applied as South Sudanese first broke away from the Sudan with a promise to join the community of nations in a legally organized socio-economic and political society. Yet, the dream of good citizenship and enjoyment of freedom in one’s own country were turned into nightmare. The second thought can be good reason to say enough is enough after suffering of the citizens and who continue to suffer until date in a dignified silence.
From 2005 up to 2011 alone, the values and principles of good governance in the constitution were compromised on the expenses of attainment of present day South Sudan. This is shown by some losers of 2010 general elections although skirmishes of corrupt electoral processes and voting exercises have shown. Lastly the biggest unifying agenda was referendum on the right of self-determination for the people of South Sudan which inspire many citizens and indeed set aside all their wrongdoings and voted by 98.83 % to create a country of their own.
In July 9, 2011, South Sudan was admitted as world newest state. Shortly thereafter, the youngest country stumble on bad foundation as it struggle with both constitutional governance and political leadership crisis. Yet, the answers for all crisis lies with the constitution. As a tradition, constitution establish the basic structures and powers of government, determining their terms of reference, and regulating the relationships between the rulers and the ruled through well stated social contract. In other words, let me keep repeating the quote of Justice Ismail Mahomed, a former Chief Justice of South Africa who said that “the constitution is nothing less than a ‘mirror reflecting the national soul”. If you no longer see yourself in the wall mirror, then such mirror should be thrown into dustbin. By achieving a well mirrored constitution, there are number of governance issues that need serious discussion and consideration in the upcoming constitution making.
First, is lack of space for open conservation on issues of democracy and governance between the citizens and their government in the fulfillment of supreme will of the people. In this case, a good number of civic network proposed that elections as a major determinant of democracy and good governance must be discussed including how positions in the constitutional and support structures are filled; the question of presidential term limit, appointment and termination of service of constitutional office holders and other senior public officials.
Second most important agenda is the limitation of powers. The principle of limitation of powers is central to constitutionalism. And constitutional governance can only be achieved when government institutions and political processes are effectively constrained by constitutional rules. It is often expressed in the form of support for constitutional provisions that achieve the goal of limiting government. The government should be legally limited in its powers – and its authority depends on observing constitutional limitations. These limitations are, for example, in the form of individual or group rights versus government powers such as the rights to free expression, association, equality; and the due process of law. The rules imposing limits upon government power must be entrenched in the constitution and the government must not have the capacity to change those limits as they so desire.
The third issue is the separation of powers. The principle of separation of powers requires that power is distributed to the three arms of the government (Legislature, Executive and Judiciary). This principle implies that there should be no overlap in the powers and functions of the different arms of government; there should be no overlap of personnel in the different arms of government and finally that none of the arms of the government should in any way interfere with the functions and work of the other. As the saying goes, the interdependence of three arms of government is typical of the African pot which has three stones. The pot symbolizes the nation and the three stones symbolize the state or three arms of government. The stones need to be balanced to provide support for the pot.
Contrary to the principle of separation of powers in South Sudan as shown above, the Transitional Constitution, 2011 has provisions in which presidential powers interfere with legislative power and judicial functions respectively. An example is the provision of article 101 (g) of the constitution which provides that the president shall "convene, summon, adjourn or prorogue the National Legislature in consultation with the Speaker". This provision can be subject to misuse. First, “in consultation with the Speaker" does not seem to require a formal agreement of the Speaker. It is not the same as saying “after consultation with the speaker.” So, the President may decide if and when the National Legislature meets or does not meet. This has threaten the independence of the Legislature and the practice of legislative power.
Another provision of interfering with the role of the judiciary is article 133 (2) of the constitution, which provides that “the President has powers to appoint all Justices and Judges Courts (Courts of Appeal, High Courts, County Courts), subject only to recommendation of the Judicial Service Commission whose members in the first instance are appointed by the President. In best governance practice, appointment of judges and justices are often subjected to the scrutiny of the legislative branch and high court justices have security of tenure. This is because of the significant role of the Judiciary and the fact that it is expected to be independent.
After having seen the findings of the two simultaneous processes of constitution making as well as quick updates on some burning issues that need urgent attention of all policy makers at all levels, below are key recommendations.
First, this is a reminder message to the TGONU and the Transitional National Legislative Assembly that you are now pass three months late to initiate both the legislation governing the permanent constitution making process and the law establishing the commission for truth, reconciliation and healing. Therefore, it is high time to come up with these bills in consultation with the relevant state and non-state actors. The coming into force of these pieces of legislation in time has concurrent positive effect as the countrywide civic education in the constitution making is conditional on peace, security and reconciliation of South Sudanese society whose social fabric was almost torn apart by armed conflict;
Second, urge the TGONU at all levels to create platforms for direct exchange of views between the government and the citizens in enjoyment of supremacy of the people. However, this conversation should begin with parameters of the constitution. The fact that relative consultation is provided by the peace agreement may not be acceptable criteria as the current Transitional National Legislature, purported to be transformed into constituency assembly three months before the end of the transitional period was a mixture of peoples’ representatives primarily elected and some appointed. Therefore, many options are possible including demands for amendment of the peace agreement or the transitional constitution to allow the citizens directly ratify the constitution in a referendum, or if not some key provisions as those discussed in the new realities on the constitutional development are approved by popular vote.
The last recommendation is the question of leadership vacuum in the National Constitutional Review Commission. The relevant institutions, that is political parties and civil society organizations should immediately propose nominees for the Chairperson and Deputy Chairperson of the NCRC in accordance with the provision of article 202 (2) of the Transitional Constitution, 2011 for appointment by the President to help pave the way for preparation of a robust NCRC institution pending enactment of the new law by the TNLA which will subsequently stipulates criteria for appointment of the commissioners at the NCRC.
Beny Gideon is South Sudanese private lawyer and human rights defender. He was part of the IGAD-led peace process for South Sudan representing civil society organizations. His research interest are politics and governance, human rights and social accountability. He can be reached via firstname.lastname@example.org