Dr. Richard K. Mulla: THE CONSTITUTIONAL REVIEW PROCESS IN THE REPUBLIC OF SOUTH SUDAN

By Hon. Dr. Richard K. Mulla, MP (independent)

 Mundri Town, Constituency No: 1

Western Equatoria State

National Legislative Assembly

Juba -15^th March 2013

In the ordinary sense a “constitution” is the collection of rules which establish, regulate or govern the government of a country. It is the instrument by which the government can be controlled.

The constitution is a living document, being the social contract among the people on how they would like their country to be governed.

Constitution making process therefore matters.  The claim is that the more open and participatory the process the better.

However, constitutions are frequently written in times of crisis and when passions are tightened. When such situations arise, there is need for interim arrangements to be made as opposed to full scale efforts to draft a new constitution.  The Interim Constitution of Southern Sudan 2005 is a case in point.

The Republic of South Sudan has an estimated area of 239,285 Square kilometers (excluding Abyei) and a population of about 8.2 million according to the disputed 2008 population census with various ethnic, cultural, linguistic, religious and other differences.

It is therefore the constitutional responsibility for the government of the New Republic to draft and enact a constitution which considers:

·        Fostering national unity

·        Developing national identity

·        Protecting human rights/ and minority rights

·        Strengthening democracy and the healthy functioning of good governance.

·        Promoting social and economic growth etc.

I have been requested to make a presentation on “the constitutional review process and other constitutional issues in the Republic of South Sudan”, incorporating the system of governance, the distribution of wealth, human rights, accountability and other related matters.

Although the scope of the presentation is expected to be very wide, I will try my best to cover as many issues of importance as possible within the given time limit.

In any constitutional review process it is very important to consider the aspects of the mode of representation; the style of the constitution making process as well as the mode of ratification.

There are four modes of representation:

(i)                 The common method is for the Executive to appoint a Constitutional Committee or a variant thereof.

(ii)               In some cases it is the legislature that appoints the committee.

(iii)             It can also be by way of Constitutional Convention e.g. the delegates representing territorial units.

(iv)              By convening a National Conference (which is a large –broad based body drawn from all sectors of the society).

One style is to make the process broadly open and participatory and the other is to make it exclusive and largely closed door affair.

The “open process” is where citizens can comment on the constitution making process and submit suggestions.

The “closed style” or “behind closed doors” scenario is where public consultation and public input is minimal.  This style is characterized by personalized negotiation and potential horse trading.

The mode of ratification.

Ratification can either be by political elites e.g. the state executives themselves or by a mechanism which involves a popular vote by the citizens through a referendum.

The midway solution is where parliament or the Constitutional Court approves the constitutional draft.

This constitution was drafted by a small body that was not really representative of the country’s political landscape.  It was appointed by Late Dr. John Garang de Mabior (then Chairman and Commander in chief of the SPLM/SPLA) towards the conclusion of the Comprehensive Peace Agreement and as was agreed during the agreement. That constitution suffered under severe time constraint and the process lacked transparency.

After the Comprehensive Peace Agreement in 2005, passions had diminished and it would have been possible to address the constitutional review process in a more logical manner and thereby increase the possibility that the eventual product would create a frame work for an accountable government.

 The first Constitutional Review process started in 2010 with the appointment of the “Technical Constitutional Review Commission’ which was appointed by President Salva Kiir Mayardit “to make the Interim Constitution fit for succession”.

The Transitional Constitution was not really necessary because the Interim Constitution of 2005 would have out lived the period as can be seen from article 208(7) of the said constitution:

“If the outcome of the referendum on self-determination favours succession, this constitution shall remain in force as the constitution of a sovereign and independent Sothern Sudan….”.

Unfortunately the Commission at first comprised 23 members from the ruling SPLM party and one opposition member.  Later 12 other members were appointed from the civil society and academicians following a public outcry.  AS if what had been done was not enough some additional members were also appointed from the same ruling party to make a total of fifty members.

The draft was directly presented to the President and the cabinet where it was suspected that there were some few minor changes.  There was no official record of the proceedings.  It is clear from the above explanation that the Technical constitutional Review Commission was convened and its composition changed without an appropriate legal basis.  This conclusion was made possible because according to section 103(2)(K) of the ICSS, the President has the power to appoint adhoc Committees and Commissions.

However, the normative, political, and symbolic importance of drafting a constitution commands that the body designated to perform such a noble task be created by law.

According to Article 202 of the Transitional constitution, 2011 (hereinafter referred to as (TC), the President was to establish “The National constitutional Review Commission” within six months from the date of signing the TC, (i.e.9/7/2011); meaning the appointment should have been done by  9/12/2011.   As it were the members of the Commission were to be appointed by the President after consultation with political parties, civil society and other stake holders.  The President was also to issue the terms of reference for the committee as well as the procedure to be followed.

Initially the Commission was to submit its report to the President after one year together with the draft constitutional text and explanatory report.

The criteria for the membership of the Commission included (gender, social and regional diversity, requisite competence, and technical experience).   The recognition of inclusiveness, transparency and equitable participation was also mentioned.

The Commission is also allowed to seek assistance from experts and “adopt its own rules and regulations”.  How could the Commission adopt its own rules and regulations when the President was required to give the terms of reference as well as the procedure to follow which was mentioned earlier?  Thus the provisions appear to be contradictory.

By way of public participation the Commission could collect views and suggestions from all stake holders, including any changes that need to be introduced to the current system of governance.

The main term of reference is to review the Transitional Constitution, 2011 as later contained in the Presidential order which established the Commission.

The President is to submit the draft text and report to the National Constitutional Conference comprising delegates from:

·         Political parties

·         Civil Society organizations

·         Women organizations

·         Youth organizations

·         Faith based organizations

·         People with special needs

·         Traditional leaders

·         War widows, veterans and war wounded

·         Business leaders

·         Trade unions

·         Professional associations

·         Academia

All the categories are to nominate their delegates to the President for appointment to the conference.

The duties of the National Constitutional Conference as stated in A.203 (3) of the TC include:

·         Deliberating  on the draft constitutional text

·         Conducting Public participation in transparent manner and open to the media

·         Approving and passing the  draft constitutional text by simple majority

The National Constitutional Conference was to submit the approved draft text to the President within six months (I.e. 31/7/2012) as of then.  This period has now been shifted to 30/6/2015 following the amendment of the constitution on 18/3/2013 giving the Commission an additional period of two years ending on 31/12/2014.

A Judge of the Supreme Court is to chair the National Constitutional conference and the conference should stand dissolved after submitting the report to the President.

 The President is to table the draft constitutional text to the National Legislature at least one year before the end of the transitional period.  What is the transitional period?  The problem is that there is no mention of the end of the transitional period.

According to our records the legal time frames are as follows:

·         Pre-interim period (chap1) CPA started at 9/1/2005 and ended on 9/7/2005.

·         Interim period six years to run from 9/7/2005 to 9/7/2011.

·         Transitional period as from 9/7/2011 to an indefinite period.

I beg to repeat that there is no mention of the deadline for the transitional period.

The omission of the deadline for the transitional period could as well become a source of considerable constitutional and political difficulties.

We should also remember that the Transitional Constitution is to remain in force until the adoption of the permanent constitution.  God only knows when that is to happen.

Thus it is to be expected that  the next constitution of South Sudan will come one day, but it will have to be amended or revised as soon as possible because the circumstances will have changed, new needs would have appeared and  old constraints disappeared.

According to article 203(7) of the TC, deliberations of the national legislature is limited to 3 months when it must adopt   the constitution  and get it presented to the President for assent and signature (A.203(8)of TC).

From the foregoing provisions, it is clear that the current review process begins with a broad review commission and an all inclusive of constitutional conference.  However, the permanent constitution will be adopted by a simple majority vote in the legislature.  There will be no referendum

It is also obvious that all the stages will controlled by the President.  He plays a pivotal and decisive role in that:

·         He appoints the members of the commission and decides on how many and who

·         He presents the draft to the constitutional conference and also appoints members to conference (furthermore deciding on how many and who)

·         He receives the draft constitutional text and the explanatory report from the constitutional conference and causes it to be tabled to the National legislature

·         Finally he assents to and signs the constitution into law after its adoption by the national legislature.

Who finally will own the constitution, is it the people or the President?

 The process prescribed for the permanent constitution is highly opposed to the normal process which should start with a narrow expert basis, then subsequently gets more representative.  The end should be a mechanism capable of producing an optimum of legitimacy.

It is very important that the process is guided and bound by the standards of contemporary constitutional and international law and political science.

SOME OF THE AFRICAN EXPERIENCES.

During the period of decolonization and independence in the 1960, the experience was different from that of the wave of democratization which occurred in the 1990s following the end of the cold war.  During decolonization, constitutional provisions and texts were negotiated with the colonial masters who centralized most of the powers at the national level for purposes of control.  However, during the democratization period, the struggle was to give more powers to the people.  Some examples from the African continent will demonstrate the various experiences.

The West African examples took the phenomenon of the National Conference especially in the Franco-phone countries of Benin, Gabon, Congo Brazzaville, Mali, Togo, Niger, Zaire and Chad.  These countries implemented the National Conference method as a route to democratic change.  For example in Benin the conference lasted for ten years.

President Kerekou was a reluctant reformer but was changed to acquiesce in the reform process.  The launch of the National conference took a revolutionary direction as the delegates declared the conference sovereign. The National Assembly was dissolved within those days and many of the President’s powers were removed and multi-party elections were scheduled.

To underscore the degree of popular sovereignty, a referendum was held later in the year to ratify the new constitution.

The National Conference involved a large and broad based body drawn from all sectors of society.  It was an inclusive body which typically included delegates from some or all elected bodies, civil society organizations, traditional leaders and religious groups.

Unfortunately in Togo, although the National conference declared itself sovereign, it never achieved the defacto sovereignty and the process was ultimately controlled by the President.

Namibia used an ex-ante agreement of what the broad constitutional principles would entail (that is they adopted the constitutional principles before the drafting of the constitution).  The similarity with us was the sticking to the terms of the comprehensive Peace Agreement as the guiding principle during the drafting of the Southern Sudan Interim Constitution in 2005.  The categories identified in Namibia for making the constitutional body were inclusive of the following:

·         Political parties

·         Civil society organizations

·         Individual citizens

Serious attempts were made to invite submissions and actively solicit the views of various stakeholders.  Furthermore principles of transparency required that all materials of the constitutional proceedings be made available to the public.

There were 34 constitutional principles approved and they had an effect on the nature of the deliberations.

Two-thirds of the constitutional assembly was the required structure and the working methods which were needed to effect the eventual product.  This provision was to determine that the text complied with the principles laid down in the ex-ante agreement.

The deliberations were approved by the Constitutional Court and later ratified by a referendum.

In Eritrea (1993), the constitution drafting process lasted for four years (up to 1997) when it was ratified by the Constituent Assembly.  The important component was the incorporation of civic education on the constitutional matters.  In the meantime a series of proclamations served as the interim constitution.  Since the nation had low literacy rate, some of the techniques used were songs, poems, stories and plays in vernacular languages by using radios; mobile theatres; testaments during outreach etc.

Kenya witnessed the end of one party rule in 1991, which had lasted for 22 years (1969-91).  The re-introduction of political pluralism accompanied by growing calls for constitutional reform led to the enactment of the Constitution of Kenya Review Act 1997.  The act laid down the frame work for constitutional change.  Later the act was amended to place the participation of the people at the centre of the process.  The Constitution of Kenya Review Commission (CKRC) was appointed by the President on the nomination of parliament.  It was inclusive and had experts as prof. Yash Gai.  The Composition of the Conference included:

·         All members of Parliament

·         Regional delegates

·         Representation of various social groups and civil society organizations and the total number of delegates was 629 individuals.

The new changes managed to incorporate a people driven constitutional making process.

In Uganda, after capturing power in January 1986, President Museveni established a Ministry for Constitutional Affairs to begin consultations for the promulgation of a new constitution.  In 1988, the National Resistance Council (NRC) which was the Parliament debated the Bill for establishing the Uganda Constitutional Commission (UCC).  The act addressed the following issues:

(i)     Qualifications of the members of UCC

(ii)   Eight major principles of liberal democracy to guide the UCC.

(iii) The act insisted on the fact that the UCC should involve all Ugandans in the process through wide consultation, active participation, discussion and debate.

(iv)  The act gave UCC autonomy and independence in carrying out its work without any interference from any individual or agency, including the government and the President.

The 21 member team was appointed by the President in February 1989 with Justice Ben Odoki;  Justice of the Supreme Court as the Chairman of the Commission.

The Commission took 4 years to collect views from all stakeholders in Uganda including intellectuals, bureaucrats, villagers, the Army, women, youth etc.  Meetings were organized where views were solicited as well as contributions by way of written memoranda in all languages.  The work was enacted into the Constitution of Uganda 1995.

The critical policy issues which need to be addressed during the constitutional review process would in my view include the following:

1.       International boundaries

2.       The national capital City

3.       Land grabbing

4.       Decentralization

5.       Predominance of the President

6.       The Council of Ministers

7.       The legislature

8.       The Judiciary

9.       Corruption

10.   Transparency and accountability

11.   Human rights

12.   Ethnicity and tribalism

13.   The role of women

14.   Local government

15.   Traditional leaders

16.   Language

17.   Amendment of the constitution.

18.   Federalism.

We shall consider one item after the other.

1.       International boundaries

The main problem concerning our boarders is the demarcation of the boundaries between the Republic of South Sudan and that of the Republic of Sudan.  Article 2 of our constitution states that South Sudan shall comprise “the former Southern provinces of Baher El Ghazal, Equatoria and Upper Nile as at 1.1.1956” including Abyei.

Although the boundaries Commission has been too slow in fulfilling its obligations as agreed in the Comprehensive Peace Agreement 2005, the inclusion of Abyei into the territory of the Republic of South Sudan before the holding of the expected referendum in Abyei is highly problematic for the healthy relationship between the two Sudans.

Furthermore this problem has been exacerbated by the recent March 2012 “Cooperation Agreement” between the two parties which extends to the famous mile 14 in Aweil area and beyond.  The majority of South Sudanese fell that most of the territories belonging to South Sudan have been voluntarily ceded by the unfair agreement to North Sudan.  This is a bone of contention.

Other international borders which might come into dispute are not a matter of urgency as of now.

2.       The National Capital City

Juba does not seem to be an appropriate place to host the national capital because of divided feelings.  According to the Interim Constitution for Southern Sudan 2005, the City of Juba was defined as the capital city of Southern Sudan and the seat for the National government.  However, the transitional constitution of 2011 added a proviso that the national Government may “relocate the national capital to any other location within the territory of South Sudan by law”. [A.50 TC]

Unfortunately the first resolution made by the Council of Ministers after its being sworn in at independence in July 2011 transferred the capital city to Ramciel.  This matter has never been brought to the National Legislative Assembly for debate and there is no law to govern the transfer.

Feelings are very high about Juba and Ramciel, people are much divided, and the government seems not to be playing its cards properly about uniting the people over the issue.  The executive prefers to fan ethnic differences instead.

According to Ronald C. Rowat, usually “the Federal Government wants to “control and develop the capital in the interests of the nation as a whole, while the people of the capital naturally wish to govern themselves in the greatest extent possible”. {See Ronald C. Rowat ed. The Government of the Federal capitals-University of Toronto 1973, Vi-Xii}

There are three possible constitutional arrangements for federal capitals:

(i)                 Where the capital is a federal district or territory under the exclusive jurisdiction of the Federal Government e.g. Washington DC (USA); Canberra (Australia); Federal District of Mexico (Mexico); Federal district of Caracas (Venezuela); The Union Territory of Delhi (India); The federal  territory of Islamabad (Pakistan);  Abuja the Federal Capital territory (Nigeria); and the Federal Capital territory of Addis Ababa (Ethiopia).

The advantage of this arrangement is that the Federal Government has sufficient control over the planning and development of its own capital.  The arrangement also avoids having the law of any one member state dominating the capital of the whole federation.  It also prevents any one state from interfering with the organs of the Federal government or imposing its legal or cultural dominance on the Federal capital.

However, the disadvantages are that there is too much Federal control over local residents.  They do not also elect representatives to the Federal Parliament.  If the area of land they occupy is not large enough to begin with, problems arise when the urban population spreads beyond their boundaries e.g. Buenos Aires, Caracas etc.

(ii)               Where the federal Capital is given the status of fully fledged state within the federation such as Vienna (Austria); Moscow (Russia); Berlin (Germany) and Brussels (Belgium).

The advantage with this arrangement is that the Capital is ensured of its local self-government and it is not subservient to any one of the other member states.

However, the disadvantages are that the Federal Government is left without minimal control over its own seat of government and if the area is not big enough at the time of creation, a subsequent spill over of population may create problems with neighbouring states or regions.

(iii)             Where the Capital city comes under the jurisdiction of a member state within which it is located in a manner broadly similar to other cities within that state.  Examples of these are Bern (Switzerland); Ottawa (Ontario, Canada); Kuala Lampur (Selangor, Malaysia); Bonn (Germany) and Madrid (Spain).  Juba might as well fit in this category.

The advantages of this arrangement are that the management of the boundaries of the Federal Capital with the neighbouring areas is open to flexibility.  There is usually provision for the general operation of local self-government in the federal capital in the same way as elsewhere in the state in which it is a part.

However, this arrangement limits the degree to which the Federal government can manage development and control of its own capital city.

Currently Juba is within the territory of Central Equatoria State thereby creating conflict between the national Government and the state government and there is need to adjust this situation based on scientific rather than political reasons only.

The Criteria for an ideal federal capital should include:

·         The ability of Federal Government to have sufficient control over the development of the city

·         The prohibition of any member state from interfering with the affairs of the capital  or dominating the capital

·         The possibility for local residents to have some degree of local self-government as well as being represented in the national parliament

·         The presence of some area which is big enough to accommodate expansion.

The governance model chosen for the federal capital has tremendous value in diverse cultures and must be a symbol of the unity of the people.

3.       Land grabbing

Land is the single most valuable asset to human being.  It is a sure guarantee to life.  There is need for a clear and fair policy governing land acquisition, expropriation, appropriation, distribution and alienation that can guarantee peace in the country.

Unfortunately there is no land policy in the Republic of south Sudan.  According to the Comprehensive Peace Agreement 2005, the parties stated that “this agreement is not intended to address the ownership of those resources (meaning land and natural resources).  The parties agree to establish a process to resolve this issue.  Once more no proper mechanism has been established and this issue needs urgent resolution.

  Article 170 of the TC states that “all land in South Sudan is owned by the people of South Sudan”.  The same constitution further continues to say that land can be held as public land, community land and private land. Community land is meant to include “all land traditionally and historically held or used by local communities or their members”.  Communities and persons enjoying rights in land shall be consulted in decisions that may affect their rights in the land and resources.

Since most of the land was not surveyed and demarcated earlier, all the communities in South Sudan have taken control of most lands to the disadvantage of the citizens and the governments.  The acquisition of land has become so difficult that people have been pushed to land grabbing.  There is urgent need for the national government to come up with suitable and appropriate land policies and laws to contain the situation to give room for development and growth.

4.       Decentralization.

The TC provides that the Republic of South Sudan is governed through a decentralized system at national, state and local government levels (A.162-1TC); much of this statement is paper work.

 We need to briefly consider issues related to power sharing, wealth sharing, fiscal transfers and intergovernmental relations between the various levels of government etc. so as to get some ideas about the practicality of the situation.

Power sharing.

The scheme of power sharing has been set out in schedules “A” for national government; Schedule “B” for State Governments; schedule “C” being concurrent and schedule “D” being residuary etc.

Careful consideration reveals that some of the items listed in schedules “A” to “E” is overlapping.   The examples are schedule B4 on “state information, publication and mess media” is also found in Schedule C13 “information, publications media and broadcasting” The question is does schedule B4 establish a lex specialis to schedule C13?

The other example is in schedule C10 and schedule A14 where both list “river transport” and are mutually exclusive, how should the competencies be distributed in the field?

Furthermore Schedule E on “resolution of conflicts in respect of concurrent powers”, has a centralizing effect.

There are many other examples of overlapping and contradictions throughout the schedules and they affect the smooth implementation of the decentralization policy.

As of now, South Sudan has 10 states governed on the basis of decentralization.  It is very important to note that decentralization does not only mean division of the national territory into smaller units.  What is important is how do you delegate political, administrative and financial powers to the lower levels of government.

According to article 59 (g) of the TC, the identity, territory, names, capital towns and boundaries of the entities are left to the Council of States.  Such a provision is not appropriate and it is necessary to enumerate explicitly the ten states in the constitution itself.  Their existence must be constitutionally protected because any basic change in the number of the territory of the states affects the republic as a whole.

The alteration of state boundaries only demands a resolution of the Council of States and does not require the approval of the affected state through its representatives or a referendum (TC163-2).

Furthermore, there is no provision for increasing the number of states and counties and yet the population is loudly crying out for more.

(b)   Wealth sharing

The sources of revenue for the national and state governments have been enumerated in articles 177 and 179 of the TC respectively comprising taxes, duties, fines etc.

According to article 171(4) “ rights over all subterranean and other natural resources throughout South Sudan, including petroleum and gas resources and solid minerals shall belong to the national government which means that there is no “state natural resources as contained in schedule “B”-7.

The issue is that most of the revenue accrues to the national government which is supposed to give grants to the lower levels of governments but is this case?

(c)    Fiscal transfers

Unfortunately there is no appropriate formula for the distribution of the national cake.

The Fiscal and Financial Allocation and Monitoring Commission (TC181), which is charged with the responsibility of recommending the allocations and ensuring their implementation was born dead.  It is totally ineffective and has not even submitted a single report to the National Legislative Assembly for that matter.

A report released by International Republican Institute (IRI) in the middle of last year showed that only 12.4% of the national revenue has on average been transferred to the States and Local Governments over the last seven years.  This means that the national government has been retaining 87.6% of the national revenue for itself.  This practice is grossly unfair and inequitable.

Nigeria, like South Sudan is heavily dependent of oil (about 90%), however, it transfers an average of 41% per annum to the States and Local Governments.  We need to emulate the Nigerian example if services and development are to reach our people in the rural areas.

 Australia is also known to be having one of the best Fiscal distribution formulas in the world.  40% of the budget is funded by federal transfers which is distributed to the states and territories in accordance with a formula recommended by the Commonwealth grants Commission and incorporated into a formal inter-governmental agreement.

  We seriously have to consider our own political, economic circumstances when we try to reduce poverty and try to meet the basic needs as well as promote growth.  Are we transparent, direct and participatory and do we share knowledge.  Do we give priority to intergovernmental relations, budgeting, accounting and recording?  What about the training of Civil servants.  The clear challenges facing decentralization include:

(1)     Clear understanding and appreciation of the decentralization

(2)    What are the guiding principles and standards for the implementation and execution of powers and functions

(3)    Do we try to address decentralization comprehensively i.e. politically, legally, administratively and financially

(4)    Do we have political leaders who are committed to decentralization

(5)    Do we complement political and legal clauses e.g. the Local Government Act 2009 provides for coordination and supervision

(6)    Do we match assignments with resources

Some studies were undertaken in 8 Southern and Eastern African Countries focusing on:

·         Decentralized governance

·         Local Government financing

·         Inclusive service delivery

·         Local government capacity.

The findings of the studies were as follows:

(1)    Laws governing decentralization existed but there was no commitment and will from the leaders.

(2)    The laws of decentralization were made at higher level, so there was problem of ownership of the laws by the grass roots.

(3)    The legislations were in conflict and they were not complementing each other

(4)    There were no sustainable structures

(5)    The role of traditional leaders was not clearly defined.

(6)    The role of women was not well articulated.

To remedy this situation, Burundi enacted decentralization laws together with the strategy for implementation; Kenya’s new constitution is more detailed; Rwanda also enacted decentralization laws and strategy etc.  Ghana undertook decentralization policy review in 2007.

The study also found success stories in South Africa in terms of physical decentralization; Malawi and Zambia in service delivery and in Rwanda in determined leadership.

(d)   Intergovernmental relationships

One of the major issues is that the appointment of the executive of a state government is dependent on consultation with the national President (TC 165-2).  This provision in itself is problematic because the responsibility for the state government should lie with the state Governor; hence this is a state and not a federal matter and thus a matter of the elected State Governor and not the national President.

Furthermore under article 101 (r-s) of the TC, the President has powers to remove State Governor and dissolve State Legislative Assembly (both elected by the people).  This provision is intrusive and also highly problematic in terms of both democracy and state autonomy.  Although the use of this power is subjected to only conditions of “crisis in the state that threatens national security and territorial integrity”, it leaves the door open for abuse because the President would be the only one to decide if and when the condition is fulfilled.

As it transpired the President was able to remove the Governor of Lakes state last February using the same powers but could not do the same for the Governors of Western Baher El Ghazal and Jongolei states which were undergoing similar problems of insecurity.  The entire population was left guessing and wondering!

1.       The Predominance of the President

According to article 97-3 (TC),   the President is the highest executive authority in the Republic. .  It is also important to note that this position is further demonstrated by the number and importance of the powers conferred on him by the TC as we shall see below.

The president appoints and removes the ministers (TC112-1) and the National Council of Ministers shall be the highest authority in the Republic TC109-1).

However, the appointment needs approval of the National Legislative Assembly (TC112-2) but they can be removed without any such approval by Presidential decree.

As stated earlier, the President is the highest executive authority in the Republic (TC115); while in office the ministers are collectively and individually responsible to both the President and the National Legislative Assembly commonly referred to as the NLA (TC97-3).

The NLA may pass a vote of no confidence by a qualified minority against a minister but not against the council of ministers (TC118).  Therefore the collective responsibility of the council of ministers to the assembly is not secured by an appropriate instrument.

There are 17 or more independent Commissions established. All Chairpersons and members are appointed by the President.  The President therefore has a central role in major political, administrative, social and economic problems the state has to deal with.  The Commission includes:

(1)    Judicial Service Commission (TC132)

(2)    The Civil Service Commission (TC140)

(3)    The Employees Justice Chamber (TC141)

(4)    Anti-corruption Commission (TC143)

(5)    The Human Rights Commission (Tc145)

(6)    The Public Grievances Chamber (TC147)

(7)    The Relief and Rehabilitation Commission (TC148)

(8)    The Demobilization, Disarmament and Re-integration Commission (TC149)

(9)    The HIV/AIDS Commission (TC150)

(10)  The Local Government Board (TC166-3)

(11)  The Land Commission (TC172)

(12)  The National Petroleum and Gas Commission (TC174)

(13)  The Fiscal and Financial Allocation and Monitoring Commission (TC181)

(14)  The National Audit Chamber (TC186)

(15)  The National bureau of Statistics (Tc193)

(16)  The National Elections Commission (TC197)

(17)  The Bank of South Sudan (TC182)

(18)  Council for Political Parties

(19)  South Sudan Civil Aviation

Establishing as many independent commissions in all major fields of states activities without clearly defining their functions and powers is problematic for the separation of powers.

What are the relationships between these commissions and the relevant ministries?  How do the central powers conferred to them match with the legislative powers of the national Legislature.  How do you justify the predominant position of the President in the appointment process?  To whom are the commissions accountable?

So far there is no limit for the President.  The absence of term limits for the President contradicts the very basic democratic requirement of alteration in power.

The President’s power to declare a state of emergency under articles 189-1 and 190 of TC should be bound to the principle of proportionality with regard to its substantial geographical and temporal application as well as with regard to the presidential prerogatives.

The proportionality principle has to apply also in the substantial application of the state of emergency.

Derogations from the provisions of the constitution (TC190(a)-(d)) are only possible if and so far as they are absolutely required and suitable to avert the imminent danger and the goods to protect are at least as important as the ones that are given up  (proportionality of the measure with regard to the protect goods).

Article 190(a) of the TC enumerates the provisions from the bill of rights which must be infringed even during emergency i.e. the right to life; the right to be free from torture or other inhumane and degrading treatment or punishment; the right to be free from slavery or servitude; the right to be free from retroactive application of penal laws.

It is generally accepted that these rights are part of customary international law and can as binding norms (jus cogens) not be derogated from.

2.       The National Legislature

The national Legislature is made up of the National Assembly and the Council of States.

The composition of the National Assembly is 332 (170 elected members, 66 appointed members and 96 members transferred from Khartoum), while that of the Council of States is 50 (20 elected by the states and 30 appointed by the President). It is very obvious that the majority of the members of the legislature (97%) are made up of SPLM members and Presidential appointees who are very loyal to him. Criticism of the President and his cohorts is therefore impossible.

The constitution further provides that the National elections law shall determine the future number of the members of the legislature.  Thus the National Legislature is to decide for itself by an ordinary law as opposed to a constitutional act.  Thus they are to fix the initial composition and change that composition as they may deem fit.  This principle is incompatible with the basic requirement for separation of powers.

It is highly important that the number of the representatives of the people and the states be defined by the constitution and not left to the political majority of the moment.

When it comes to loss of membership, an MP can lose membership on the basis of bankruptcy under article 63(1) © of the constitution.  What could be the logic of not making bankruptcy eligibility criteria in the first place? It means that this provision can give a private person with economic power the possibility to favour the exclusion of a political foe by putting him/her under high financial pressure.

Another provision is that Members of the National Legislative Assembly can introduce financial bill outside the draft of the general budget deliberations with the consent of the council of ministers.  Considering the fact that some Ministers are members of the NLA, they can also table bills affecting the budget and taxes during the whole year. How do you avoid the use of this procedure from undermining the general budget provisions?  How can NLA ensure that this instrument is used with restraint?

Another contradiction surrounds the ratification of treaties.  Article 57(d) states that the NLA should ratify international treaties, conventions and agreements.  However article 101(d) of the same constitution also provides that the President ratifies treaties and international agreements with the approval of NLA.

It should be resolved that NLA approves and the President ratifies.  The justification is that ratification of an international treaty is an executive privilege only exercised on the basis of Parliamentary approval.

One fears the overriding powers of the President in Article 101(b) of the TC where the President has the function to supervise “constitutional and executive institutions”.  What could be the meaning of constitutional institutions?  Is the national legislature not one of such institutions since it was created by the constitution?  It could as well mean that the President has to supervise all institutions of the state since they are all based on the constitution.  What does this supervision then imply in terms of competencies?  We need to remember that theoretically, separation of powers demands that only institutions of executive nature are under the supervision of the President.

The fears are further increased by the contents of the provisions of articles 68(3) and 101(g) of the TC which provide for the commencement and closure of sessions of the national legislature.  Whereas the first article states that each house shall determine the dates of commencement and closure of its sessions, the last one clearly provides that the President “shall convene, summon, adjourn or prorogue the National legislature in consultation with the Speaker”.

Does really the phrase “in consultation with the Speaker” require a formal agreement of the Speaker?

Apparently the President has power to decide if and when the national legislature shall meet or not meet.  This provision therefore threatens the core and essence of legislative power.

In addition the President may issue provisional orders as long as the national Legislature is not in session (without any temporal restrictions (TC86-2) this is not in line with the principle of separation of powers.

Priority is granted to requests by the President by the national legislature or either of its houses (TC 78).  The provision is reasonable but it could also be risky in that the principle could develop into absolute priority and may be used to dominate agenda setting completely.

3.       Judiciary

Article 133 of the TC gives the President power to appoint all justices and judges (Supreme Court, Courts of Appeal, High Courts and County Courts), subject only to the recommendation of the Judicial Service Commission.  However, the members of the Judicial Service Commission are also appointed by the President.  Therefore the President has tremendous powers to influence the administration of justice.

Apparently the Judiciary still remains as a highly centralized institution in spite of the general policy of decentralization throughout the country which was mentioned earlier.  All courts remain under the supervision of the Chief Justice (A.127 TC) with the exception of the customary law courts (section 103 of the Local Government Act 2009).

Furthermore, the financial independence of the judiciary is too narrowly defined (A.124 TC).  Financial resources need to be guaranteed.  Financial independence of the management needs also to be guaranteed.  These are necessary to assure complete independence of the judiciary but that does not mean that the Judiciary cannot be audited by the Auditor General as is being misconceived by the members of the Judiciary of the Republic of South Sudan.

The determination of the immunities of the judges is left to the legislature.  However, it is vitally important to set the legal frame work   for the immunities in the constitution.

4.       Corruption

Unfortunately our constitution has no mention of issues of corruption apart from providing for the establishment of an anti-corruption Commission.  Corruption has however, been rampant in the country to an astonishing dimension. In one of the statements to the National Legislature in 2012, the President had  stated to the Parliament that he had appealed to more than 75 senior government officials, party leaders and members of the organized forces to return all or some of the money that was looted from the government amounting to 4.2 billion dollars.  Parliament categorically sympathized with the President and overwhelmingly resolved for the suspension/dismissal of those members.  The implementation of this resolution proved to be impossible, only the devil can explain!

The Anti-corruption Commission established under article 143-1 of the TC and constitutionally empowered to conduct investigations and prosecution of cases of corruption should have helped tremendously in curbing cases corruption.  Unfortunately the anti-corruption commission is toothless and is unable to bite.  No single case of corruption has ever seen the light of the day and the President has ever preached zero tolerance to corruption.

5.       Transparency and accountability

The other unfortunate commission is the Auditor General’s Chambers.  Apart from its creation the chamber has had no law of its own.  Government Accounts were not audited until the appointment of Mr. Stephen Wondu as Auditor General in 2009 following the dismissal of the former Auditor General as a result of “a vote of no confidence” in the parliament.  Nevertheless the belated audited accounts are incomplete and have not been useful in bringing any culprit to book.

6.       Human rights

The TC contains a long list of the common bill of rights including press freedom.

Rights and freedoms are definitely essential and they must be obeyed by every single state authority in the exercise of its constitutional, legislative, administrative and judicial powers.  However, they are not sacrosanct as they generally can and sometimes must be restricted.  The constitution needs to properly address the following issues:

(i)                 The essential dialectic between the constitutional guarantee of human rights

(ii)               The constitutionally permissible restrictions

(iii)             The constitutionally prohibited violations

Furthermore the TC does not make any reference to international or regional human rights violations.  The African charter on Human and Peoples rights for example differs from the conventions on Human rights in a number of aspects.

(i)           The African Charter proclaims not only rights but duties

(ii)          It codifies individual as well as group rights (people’s rights)

(iv)              In addition to guaranteeing  civil and political rights, it protects economic, social and cultural rights

(v)                It is influenced by African traditions and virtues such as specific community and family values.

What is very disappointing among others is the flagrant violation of freedom of the press.  The examples are:

·         The Straight Talk programme of Radio “Miraya FM” was shut down in 2008 for being outspoken against bad government policies.

·         A journalist known by his pen name of Isaiah Abraham was gunned down  one morning in early December 2012 for an article which he had published “calling on the government to foster better ties with its old foe Sudan and refrain from supporting rebel groups across the borders”  (meaning the Nuba and the Ingessena).

·         Subsequently another programme known as Wake Up Juba of “Radio Bakita” has also been shut down for exposing government weaknesses and the programmers Ngor Deng and Michael Thorn are believed to have either fled the country or gone into hiding.

·         Three weeks after the Christmas of 2012 the columnist John Penn de Ngong received a wrapped parcel on his bed packed with a jawbone, a bullet and death threat signed by a group calling itself “the committee for operation to Rescue patriotism in South Sudan- CORPSS) threatening him to stop writing else he would follow his friend the journalist to the grave.

7.       Ethnicity, tribalism  and nepotism

Ethnicity and tribalism should not really be underrated in our society.  Individuals owe their obligations to tribes. Sometimes political parties are formed along tribal lines. The gravity of nepotism and corruption and almost worldwide and global.

Jobs particularly those in sensitive areas of the economy and government such as finance, the military and intelligent services are given to relatives of the rulers irrespective of their qualifications.  The recent Equatoria conference [ Juba 14^th and 15^th February 2013] focusing on consolidating unity, democracy and justice accused the two major tribes of Dinka and Nuer [which are being led by the President and the Vice President respectively] of monopolizing all jobs in the Army, Police, Prisons etc, the Civil Service and the diplomatic service.  Scholarships are also being unfairly distributed and Equatoria has been seriously marginalized in the political and economic life of the country. What is important is the ethnic and blood relations.  The results are bound to be catastrophic to the country amounting to the plunder and running down of the economy.

Inter-ethnic violence in South Sudan is common especially amongst the cattle keeping communities in Jongolei and Unity state in Upper Nile region and Lakes and Warrap in Baher El Ghazal regions.  The conflicts are normally over cattle raiding for payment of marriage considerations, grazing land and struggle over water points.

8.       The role of women

In many African societies including South Sudan, men and women are not treated equally.  Traditions and customs are used to justify the marginalization, oppression and exploitation of women.  However, it is the women who hold the society together and do the bulk of the work on the farms and at home in educating and bringing up children.

Worse still the role of women is not well articulated and although TC16(4)(a) provides for 25% for women in the legislative and executive organs it needs to be stated as to what are the exact institutions, organs or commissions or committees of the executive and the legislature?  It would be reasonable to be exact.  What about the Armed forces?  What about law enforcement and security agencies.  What about the ordinary administrative staff in general?

However, the 25% must be meaningful representatives of the women but not girlfriends or concubines of some senior politicians and government officials.

The constitution should also declare oppressive and exploitative traditions and customs which are found to be illegal.  The government of the day should be bound to enforce the equality clauses in the constitution through its policies.

9.       The Position of Local Government.

Our constitution is not very clear on whether we need a Ministry of Decentralization at the national level or just the Local Government board.  According to article 166-1 (TC), the central government has initial powers to set up the local Government system.  However, article 166-2 of the same law states that it is the states that are competent in this field.

Article 166-2 should arguably prevail over 166-1 during the transitional period until when the national government has provided such a local government system.

The position of local government should be one of the following:

(i)                 Local government as an extension of State Government e.g. U.S.A. and Canada (dual federalism).

(ii)               Local government as an equal partner with higher level governments e.g. Brazil, (cooperative federalism).

(iii)             Local government as the main source of sovereignty e.g. Switzerland.

The older federations do not refer to Local government as part of the federal organizations (e.g. USA, Switzerland until 1999, Canada and Australia).  They consider local government to be part of the State or Provincial order and leave it to the statutory authority of that order.

Other federations such as Germany and India recognize and guarantee local self-rule in the federal constitution but without giving local bodies the status of third order of government, leaving most of the details to the states.

The relation between local government and State/Provincial and Federal governments is determined not only by constitutional setting. The ways in which Local Government lobbying is organized are equally important.  A strong and qualified Local Government Association is needed to represent views and interests in the state and regional arenas.  Party politics may be involved too.

Local governments should also strengthen their relations with NGOs and CBOs.  They must also bring increased numbers of new groups into greater political participation to enhance the democratic functioning of local institutions and increase the alignment between the needs of the population and the services delivered to them.

Local governments are unable to function as units of self-government.  They are dependent of state governments which have conceded only political decentralization and not the fiscal or the administrative decentralization of powers and functions to localities.

Constitutional entrenchment of local government in federal constitutions and statutes might make these relationships easier.

The constitution of USA for example does not explicitly mention a long list of responsibilities of both the Federal and State governments.  There is only a list of delegated powers to the US government.

The 10^th amendment of U.S. constitution states:

“The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people”.

Thus the states retain considerable powers which also include the power to establish local governments.  Consequently the organizational structure of local governments, their functional responsibilities and their revenue powers differ from across States (e.g. from highly centralized Hawaii to highly decentralized Hampshire).

In Switzerland, Local governments are known as municipal governments.  They constitute the third order of governance after the confederation and cantons.

All powers rest with the Cantoons unless the federal constitution explicitly transfers a specific power from the cantons to the federal order.

Such constitutional amendments are submitted to referenda and enter into force after they are approved by the majority of the voters and cantons.

Constitutionally municipalities only have a general residual competence.

 It was in Article .50 of the 1999 constitution Swiss constitution that the autonomy of municipalities is guaranteed within the limits fixed by the cantonal law.

It is the respective legislation of each of the 26 Cantoons that sets up the municipalities and defines the re-organization, competencies and resources as well as the power of control and intervention of the cantonal authorities in municipal affairs.

During the Round Table Conference held in Juba for the State Ministers of Local Governments in 2012 some considerable experience were brought to the surface concerning the implementation of the policy of decentralization in the Republic of South Sudan which needs to be mentioned at this juncture.

1.       The boundaries of Local Governments have not been defined, there is no clear demarcation between the existing 79 counties and yet there is demand for local government or counties to increase without considering the size, population and economic viability.

2.       What is the definition of the Commissioner?  Should he be a political leader or administrator?  Should the Commissioners be elected?  We need to make the post of the Commissioner to be stable.

3.       The relationship between Local Government and the counties is that the counties are described to be completely independent

4.       The Commissioners prove to be obstacles to local government work and there is poor relationship between the Commissioners and the chiefs, administrators and the public.

5.       Most people are illiterate and they need clarifications on the policies including land policy.

6.       The budgeting at county level is poor, they should follow nominal roles but commissioners include wives, relatives in the nominal roles.

7.       The commissioners use relatives and low level administrators in the collection of local revenues for themselves.

8.       The private sector was very poor etc.

9.       Currently there are problems being experienced in the election of chiefs.

10.   Councilors were being appointed and their regular meetings were not being held.

(1)    There is no office accommodation for the staff

(2)    There is inadequate transport

(3)    There is no road access and rivers are only used during the rainy season.

(4)    There is poor communication between the national, state and counties

(5)    There is poor gender representation

(6)    Insecurity in Upper Nile is undertaken by the Youth in terms of cattle raiding since there is no employment.

(7)    There is too much fighting on basis of tribalism ,nepotism etc with calls for new counties

(8)    There no monitoring and follow up of activities

(9)    .

1.       Much power was found to be concentrated in the hands of a few.

2.       There is few qualified staff to manage the units e.g. 10 counties; 49 payams and 169 Bomas.  Ironically a great number of qualified and experienced civil service staff was maliciously laid off under the uncouth policies of “re-integration” and “downsizing”  between 2007-2009 in this very state.

3.       The tax officers and rate collectors raised inadequate revenues from the taxes and other collections.

4.       There was resistance to transfers

5.       The Commissioners were uncooperative

6.       There was too much corruption, since most of the Payams are far, so the officials felt free to practice corrupt behaviours.

1.       The Police Commissioner was appointed at the national level and was not answerable to the Governor.

2.       Organized forces say they are only answerable to the national government, they disobey ministries of local government

3.       There was lack of coordination between state ministries and national level miniseries.

4.       There was presence of Small arms proliferation and insecurity

5.       Centralization of the collection of all non-oil revenue was prevalent

There were too many employees in a county e.g. 191 employees.

19.   The role of Traditional Leaders

The institution, status and role of traditional authority according to customary law are recognized under the constitution (TC 167-1).

This recognition has very high legal and symbolic value, as it states openly the necessity for a peaceful co-existence between state and traditional authorities on the local and state levels.  However, many chiefs complain that they have been stripped of all essential powers and are no longer respected within their communities.  There is need therefore to give co-existence of state and traditional authorities a real meaning in full recognition of constitutional rights.

Article 168-2 of the TC  introduces the establishment of Councils for traditional authorities but leaves the (i) composition  (ii) functions  (iii) competencies to the National and State legislatures.  It is very important for the constitution to iron out this vacuum.

20.   Language

As stated in article 6-1 (TC)”all indigenous languages of South Sudan are national languages and shall be respected , developed and promoted” but omitting Arabic as the most widely spoken language and as the lingua franca between tribes seems highly problematic.

Hitherto the Judiciary is still largely using Arabic in hearing cases, conducting various deliberations including writing judgments and yet no action is being taken to change from Arabic to English. Does this action not give room for running the country along parallel lines?

21.   Amendment of the Constitution.

Normally amendment provisions for constitutions are specific and they differ from ordinary legislation. As put by Justice Marshall in Murbury Vs. Madison (1803), constitutions are unchangeable by ordinary means. This means that the procedure leading to constitutional amendments must not be the same as those that govern law making; otherwise this process reduces the constitution to an ordinary legislative act.

According to article 199 of the TC, the TC cannot be amended unless the amendment is introduced at least one month before and passed by 2/3 of each house. BUT yet the same TC sets that the “commission shall review the transitional constitution”, and then it can be passed by simple majority into a permanent constitution (203-7 TC).   Thus the permanent constitution will be enacted like ordinary legislative act.  This is a very serious contradiction and is contrary to international practice.

22.   Federalism

As from 1947 the people of South Sudan have been asking for a federal system of government in the country but to no avail.  During the debate of the independence motion for the Sudan on 19^th December 1955, members of Parliament from Southern Sudan had demanded for a federal system, however, their motion was dropped on the ground that the issue would be considered after independence.  Unfortunately that was a trick on the part of their opponents in Northern Sudan who were opposed to federalism.  As it transpired later, the constitution drafting committee which was formed immediately after “independence” in 1956 had only two members from Southern Sudan out of 50 members.  That Commission reported that “the claim of the people of the South for Federation was given full consideration but was found to be unworkable”.  The denial of federalism for the people of Southern Sudan led to the 56 years of civil war in the country culminating in the independence of South Sudan in 2011.

This time round the people of South Sudan especially from Equatoria, Upper Nile and some parts of Baher El Ghazal are also asking for a federal status but the leadership of the SPLM seems to be less interested.  During the passage of the Transitional constitution on 7/7/2011 those who voted for federation were 42 as opposed to 113 which supported decentralization.   The demand for a federal status seems to be on a rapid rise and any continued resistance to the demand is likely to cause some problems for the country.

Federalism equals to an ideology that combines shared rule with self-rule.

According to Riker (1964:5)

-“the essential institutions of federalism are a government of the Federation and a set of governments for the member units, in which both kinds of governments rule over rule over the same territory and people and each kind has the authority  to make some decisions independently of the other”.

Legally, a Federal constitution is where the legislative and administrative authority of the National and State Governments are both subordinate to the Constitution, but co-ordinate to one another.  In other words, the powers are divided in such a manner that the national government and the state government are each within a sphere co-ordinate and independent.  They are mutually exclusive of one another and reciprocally limited in their fields of power [Wheare, The Federal Government 4^th edition Oxford 1963 P10 and 14].

There is no standard definition for decentralization.  However, it is generally understood that decentralization is the process by which functions and decision making authority are transferred from the national government to the sub-national government or from one sub-national government to yet a lower one, depending on the tiers of government established in a particular country.  Thus there are various models of decentralization all over the world and in fact every country practices decentralization in one form or the other.

1.      The case for federalism rests on democracy; good governance (effectiveness, responsiveness, accountability);

2.      Federalism is also used for conflict management (it gives each group autonomy to promote its own interests and values;

3.      Federalism avoids tyranny of the majority and permits country wide majority to rule on common issues, local majorities to rule on issues closer to own interest).

4.       Federalism Promotes accommodation in divided societies in the sense that Federalism as a political idea has become increasingly important as a way of peacefully reconciling unity and diversity within political systems. For example diversity based on language, religion, ethnicity, nationality, culture and race (not gender, class, states, occupation etc.).

5.      Thus unity can be grounded in diversity and diversity can give rise to unity; there is no necessary contradiction between unity and diversity

There is need to build dynamic, efficient and modern state (e.g. India, USA).  In such context, federal solutions have been an increasingly wide spread appeal because, I repeat:

(a)    they enable shared governance in a large political unit for certain common purposes; and

(b)   They provide autonomous self-governance for the various diverse groups in smaller constituent units of government directly and democratically responsible for their own electorates.

1.      STRONG AUTONOMY (OR CORPORATE STATUS)

            In a federation, there at least two orders of government, one for the whole country and the other for the regions or states.  Each government has a direct electoral relationship with its citizens.  A decentralized government can have only one level of government which is the only one related to the citizens.

2.      BUDGETARY CAPACITY AND OWN SOURCES OF REVENUE

The political, administrative and financial powers of the lower levels of government are clearly defined and protected in the constitution.

3.      POWER TO APPOINT, RECRUIT, TRAIN AND DISCIPLINE ITS OWN STAFF

As an autonomous entity it has full mandate to hire , fire and discipline its own staff as well as build their capacity without any interference from above.

4.      RIGID AMENDMENT PROCEDURE

A Federation has a written constitution some parts of which cannot be amended by the Federal Government alone.  Major amendments affecting the constituent units require substantial consent from them as well as from the Central government.  Constitutions of decentralized government can easily be amended at the will of the central government.  The decentralized constitution can be very flexible.

5.       DEVOLVED RANGE OF FUNCTIONS

A federal constitution formally allocates legislative and fiscal powers to the two orders of government ensuring some genuine autonomy for each other.  There is no genuine autonomy in decentralized government.  The central government can interfere at any time in the affairs of the lower governments.

6.      USUALLY TWO DECISION MAKING BODIES

Usually some special arrangements, notably the Upper houses are found in federations for the representation of constituent units in key central institutions to provide for regional input in central decision making.  The prevalence of such upper houses in federations is associated with the idea that both the population and the constituent units are part of what makes a federation and both dimensions need to be reflected in central institutions.

All the peace loving individuals, institutions and governments of the world should come to the rescue of the Republic of South Sudan through some collaborative effort [in terms of pressure, advice, and political, moral and financial support] before the country sees the day of its total collapse.  The government of the day needs to dissolve the current Constitutional Review Commission and open up the constitutional review process to the people even if it leads to more extension of time.

As Jennings said:

“The accepted doctrine is that no fundamental change in the political system should be made without a specific mandate from the people” [Jennings, the law of the constitution 4^th ed.P.105].

To get the mandate of the people the following steps should be carefully followed:

1.       The framing of the constitutional proposals.

2.       Conducting popular consultations.

3.       Discussions of the proposals in a constituent Assembly

4.       Enacting the Constitution or ratifying it.

This assignment must of necessity be entrusted to a small group of expert individuals.

Since there is already a government in existence, the responsibility for the appointment of the group may be conceded to it provided that the appointment is made objectively with the purpose of obtaining the best services of the persons best qualified for the job.  Due regard must be paid to the major interests comprised in the country.

Like other organizations and individuals in the country, the government is perfectly entitled to submit proposals to the constitutional commission. The important point however, is that, the government’s proposals should not be the only ones to form the basis of the discussions.  The advantage of basing the discussions on more than one set of proposals is illustrated by the experience of the United States, where several plans were submitted to the Philadelphia Convention in 1787.

If an independent commission is used, its proposals should of course be submitted to the government.  The question is whether the government should have unfettered discretion to reject or amend the proposals as it likes? The answer should depend largely on the nature and extent of the popular consultations made by the commission, and on whether the proposals reflect the views merely of the commission or of the majority of the people consulted.  A small group of individuals no matter how eminent and well qualified, has no better right than the government itself to impose its views upon the whole community.  If the proposals have been submitted to the public who have been consulted, then the government cannot justifiably have an unfettered right to modify them as it pleases.

Popular consultation is needed in order to command the confidence, loyalty and obedience of the people.  The legitimacy of the constitution and of the government depends on this factor.

Furthermore, the consultation should not be remote from the lives and thought of the people.

A constitution should be generally understood by the people, and acceptable to them, because without [1]these two factors, it cannot hope to command their loyalty.

To achieve this end and understanding the constitution should be put through some popularization exercise so as to generate public interest and so that everybody takes some stake in it and views it as a common property for all.

The people must be made to identify themselves with the constitution.  Without this sense of identification, of attachment and of involvement, a constitution would always remain remote, artificial and with no real existence than the paper on which it is written.

Consultation should ideally be done in two states:

·         Before framing the proposals

·         After framing the proposals.

The method of consultation also matters.  The questions are.  Was the consultation real and meaningful?  What was the nature and quality of consultation?

·         Were meetings conducted in all parts of the country and at all levels of the society?

·         Were the itenary of the visits clear?

·         Were questionnaires prepared in light with terms of reference (if any)?

·         What was the response of the public to the process of consultation?

·         Were public rallies also held?

·         Was ample opportunity given to all citizens?

·         Was there call for oral or written submissions or both?

·         Were citizens at home and abroad involved?

·         Were the programmes widely publicized?

·         Were the terms of reference translated?

·         Were press conferences held and were appeals made to the people to live up to their national responsibilities by submitting their representatives to the commission?

·         Were views received from the cross section of the population including political opponents?

·         Were posters used? etc.

It is very important to consider whether there is need for an elected Constituent Assembly where there is an already existing elected parliament.

Does the existing parliament have mandate to enact a new constitution radically or substantially different from that under which it took office?  If there is a popular consultation on and approval of the proposals given, then the existing parliament could conduct formal discussion.

However, without prior popular consultations and approval, it would be both pretentious and somewhat disingenuous for a National Assembly to resolve itself into a Constituent Assembly and in that capacity assume the constituency of the people.

It is also important to find out what procedure was adopted in the Constituent Assembly during the debates and the atmosphere of the debates.  More specifically, what impact was the Constituent Assembly able to exert on the government proposals?

The power to enact the constitutional proposals into law should rightly belong to the people and be exercisable by them either directly at a referendum or by Constituent Assembly so mandated by them.  Such mandate can be implied from earlier popular consultation on, and approval of, the proposals.

Enactment directly by the people might have value in enhancing the constitution’s legitimacy.  This procedure would foster among the people a feeling that the constitution is their own and not an imposition by the government and that they must have a stake, and responsibility in observing its rules.

If the issues raised above are addressed by the permanent constitution following the suggested process, it would pave the way for South Sudan’s stability and good governance.  However, as Aristotle the old philosopher once said “tyranny gives birth to tyranny”.  The people of South Sudan gave their unconditional support to the Sudan People’s Liberation Movement and the Sudan People’s Liberation Army (SPLM/SPLA) to remove tyranny and set them free, this might not exactly happen in the absence of a comprehensive democratic programme.

By Hon. Dr. Richard K. Mulla

MP (independent) Mundri Town Constituency, NLA-Juba