The issue of Federalism in South Sudan: Are we really on the same page?

“You make better progress with a task if you don’t try to do it too quickly”

I have no firsthand source of information from the peace talks that is currently underway in the Ethiopian capital between the rebels and the government of South Sudan. However, my “friend” Facebook/social media has been hastily updating me with everything that is going on there. Nevertheless, one area which my friend Facebook has let me down on is the clarity of the agendas for the peace talks, sometimes the agenda is power sharing, other time the agenda is an interim government and/or caretaker government.

Optimistically still, despite the lack of clarity of the agendas in the current peace talks in Ethiopia, I hope that as per Makuei Lueth on SSTV the other day, a “deal is just around the corner”. On the other hand, as sanguinely as I may be about the prospects of a potential peace deal between the government and the rebels, the recent inclusion of federalism as one of the top agenda by the rebels raised my curiosity whether our people are just interested in stopping the current carnage by merely pushing it forward for another time, or do we really need a lasting peace and stability in our country?

Ladies and gentlemen, get me right, federalism as we will look at it in more details in just a moment is one of the best governing system today in the world. On the contrary, imposing it or adopting it too quickly without proper procedures can be as catastrophic as our current tribal politics.

As someone who is far away from the peace talks, the two questions that came to mind are: (1) do the rebels want federalism to be negotiated, agreed upon and ready to be implemented immediately as soon as the final peace deal is signed? or (2) do the rebels want to simply highlight the issue of federalism (that is to let the South Sudanese know that after peace deal is finally reached, and after necessary processes, South Sudan will eventually be governed through federal system)? As I do not know the answers to these two questions, I will assume that the latter is not the intention. If this is the case, then we are going to have a major problem down the track in South Sudan.

In 2004, as the newly found slogan of taking towns to the people and not the people to towns took shape, the SPLM decided to create more counties so that it would be able to implement that very vision. The intention was to create more government’s agencies close to the people so that service delivery can be efficiently and timely done. My home town of Yirol was divided into three (3) counties: Yirol West County, Yirol East County and Aweirial County. After the announcement of the formation of new counties, the youth and vast majority of locals misunderstood the reasons behind the idea, the people who happened to be from the old Yirol town centre which under new formation is now known as Yirol West began to tell the people who happened to be now from Yirol East and Aweirial that they should move to their respective counties.

In retaliation, the youth of Yirol East and Aweirial who happened to have the best grazing fields along the river Nile told the now Yirol West to move back to Yirol West with their cattle. What ensued from that confusion was a bloody four years conflict that cost the people of greater Yirol hundreds of lives. The lack of community education about the idea of creating many counties was the source of misunderstanding that cost lives, people where not on the same page to why all of a sudden they no-longer belong to Yirol centre. If there was proper consultation and awareness done, people would have understood that, although the old town is divided into three, the people are still the same and there should have been no telling people to move to their respective counties or move away from the grazing fields that belong to the other counties.

To their credit, the people (cattle keepers and their chiefs) of greater Yirol, when they realised that the government was not interested in explaining to them the reasons behind the division of Yirol into three counties and isn’t doing anything to stop the killing among these great people, they decided to convene and carried out their reconciliation. They decided to drop claimant of blood compensations and revenge attacks. In South Sudanese standards, greater Yirol is now one of the peaceful place in the country. I am not saying that if federalism is immediately adopted and implemented, people across the country will behave the same way the people of greater Yirol did back in 2004 which would be a disaster.

However, we cannot rule it out, prevention is better than cure. Thus, as the discussion of federalism gain momentum just like the slogan of taking towns to the people did in 2004, in my view, we South Sudanese must not repeat the same mistake of making no effort to educate the people of South Sudan about the meaning of federalism.

Developing federal system in South Sudan

Firstly, we should view federal constitution as a conceptual framework that will serve as a guide for all levels of governments in our country. My follow South Sudanese, many of you would agree with me that the lack of proper consultations during the development of the current interim constitution has in part a hand in current mayhem in our country. In other words, if proper consultations were made during the drafting of current interim constitution, someone somewhere who have no vested interest in giving the president almost absolute powers would have pointed out that there is a provision which allows the president to remove elected governor on the pretext of “national security threat” which was in itself dully or not defined at all.

We now have experience, a real bad experience in making too little or no consultation when it comes to the development of the constitution. Consequently, the development of the constitution of the proposed federalism should start with drafting a DISCUSSION PAPER. This initial draft paper would be made available in both hard and soft copies for all South Sudanese (not just those in the peace talk) to make preliminary comments. The committee or whichever body in charge for this project of drafting the federal constitution would then collect and review all the comments and recommendations made by individuals or groups and then produce a second phase draft.

The second phase draft document would specifically be seeking a unifying definition of federalism, its aims and the notion of ONE country under the federal government. This process would take one year to complete, and after which the people of South Sudan would carry out a referendum to vote and accept the constitution with 80% approval or reject it. The question that we must ask ourselves now is, if we want a system that we will all love, respect and abide by, shouldn’t we all (South Sudanese) take part in developing it in a fair and transparent manner? If the answer to this question is yes, then the next question would be, should the current peace talk be tied to the acceptance or rejection of federal system knowing that it would take a minimum of 12 months to complete the process of writing the federal constitution? I will leave this to you (South Sudanese).

What is federalism?

(1) Federalism is a principle of government that seeks to reconcile unity and diversity through the exercise of political power along multiple autonomous levels.
(2) Another definition: federalism is a system of government in which powers are divided between two or more constituent entities (states, territories and counties) by a written constitution.

AIM of FEDERALISM

Note that although the wording in the above two definitions are not the same; the underlying objective is the decentralisation of power into multiple levels of government. Nevertheless, the differences in the wordings in both definitions can cause huge confusion. Let’s assume that we choose the first definition, which define Federalism as a principle of government that seeks to reconcile unity and diversity through the exercise of political power along multiple autonomous levels.

This definition implies that federalism is the best system of government in countries which have different religions, languages and cultures. In other word, federalism works best in states which are multicultural or multinational. The reason why federalism works well in the mix of the above mentioned categories is that it provides protection against domination by the majority, and provide opportunity for self-fulfillment and self-development for the minority through institutions that it controls while maintaining the ability of both groups to pursue common goals. Each level of government is protected by the constitution. The objective of federalism according to this definition is a division of powers between federal government and the states and territories. Yes states will have substantial powers to make laws and many other things (less domination by the national government).

However, in some states domination of minorities by the majority will still likely to cause problems unless we pay attention to it while attempting to define federalism. Take Unity state for example, the Ruweng Ngok Dinka are only 25% while the Nuer are 75%. The recent peace deal between the government and Yau Yau which gave Murle, Anuak, and other two tribes which share 90% of cultural traits a territory of greater Pibor would fit well with the above definition. And therefore we may as well do the same thing with Ruweng Ngok Dinka as they have distinct cultural traits with Nuer who are majority in the state. I am not suggesting Ethnicity base federalism, however, it is something we should also be looking at as we try to find a way forward. Think about it.

Power distribution between Federal and states governments

Usually, the constitution outlines which level of government should be responsible for what. Comparably, in all federations, the national or federal government has powers to regulate interstate commerce, declaring war, building an army/navy, making laws to enforce the Constitution, making treaties, regulates immigration and border protection, manage national resources (e.g. river Nile) and printing money. The state governments on the other hand are responsible for issuing licenses, providing public health and welfare, regulates voting, and regulates education.

The concurrent powers, or shared powers of the federal and state government are making laws, making courts, building highways, and collecting taxes. The states and federal laws must not conflict each other, in other word, they must be consistent. However if there is inconsistency between the states and federal laws, the federal law will override the state law. With this in mind, it is not hard to see that federal government will still be a ‘big brother’.

Reason for the referendum

Let us assume that the above mentioned objectives are the aims of federalism that we would have in South Sudan should we adopt it. Hence if particular individuals or parties disagree with objectives identified above, they would most likely disagree with various prescriptions provided within federalism. Therefore if the permanent federal constitution is to be developed logically and consistently, there first needs to be some consensus on important issues such as what the meaning of federalism is and what its objectives are.

Unless there is agreement on fundamental issues, such as those just mentioned, the proposed federalism will be developed in a rather ad hoc or piecemeal manner with limited consistency between states, federal government and among South Sudanese in general. Furthermore, there are times where each level of government has an advantage of power. This is where we South Sudanese need a proper consultations and awareness to choose the system of federalism that is best for us.

Highly decentralized federalism

Basically, there are two types of federal system, in Australia and Canada for example, federalism is used in a more DECENTRALIZED manner. This means that in Australia each individual state and territory carries more power than the federal government does. In Australia and Canada, most of the money which each state receives from the federal government is unconditional. This means that each state or territory is able to allocate the resources as they see fit.

This highly DECENTRALISED federal system is not without shortcomings. In Canada for example, the province of Quebec has been seeking sovereignty for many years. They wished to preserve their faith, their language, their laws and their culture. Likewise, in Australia for example, the Western Australia state has also been seeking to secede and become a sovereign country. If Quebec ever does achieve to be separate from the rest of Canada then it will reduce the sense of equality among the rest of the provinces and territories. This could cause other provinces and territories to wish to leave Canada and take control over their own province, the same is the case with Australia.

Centralised federalism

The United States on the other hand uses federalism in a more CENTRALIZED approach. Here, the national government gives the state government money, but the state government must use the money according to how the national government wants the money spent. The national government has an increase of power here because they can get the state to do whatever they want them to do. This is also known as a conditional transfer because the state has to follow certain conditions the federal government gives them. Federal mandates is an order from the national government given to the state government that the state government must comply with and if they don’t, there will be consequences (federal funding can be revoked).

It is used when the federal government wants the state government to implement a certain policy. This also gives the federal government more power because if the state decides not to do it, the state can get punished by failing to comply with the national government. Unlike Australia and Canada where federalism is more decentralized (giving states more powers), this problem of wanting to secede is not seen in the United States because of their centralized approach to federalism. This approach allows each state to be equal and no one state to feel the need to overpower another state.

Notion of ONE country under federal government

Finally, if comments on Facebook and on other media outlets can be used as indicative of what South Sudanese think federalism will bring, the summation would be that many South Sudanese think that if federalism is adopted, people of Lakes state must not go to Central Equatoria state, people of unity state must not go to Upper Nile state and vice versa. However, integral to any federalism is the choice and freedom of movement. Citizens and businesses in a federation have the freedom to move to another state if they are unhappy with the government or the conditions where they currently reside.

This provides an incentive for states to improve their services so that they can compete with other jurisdictions. People of South Sudan especially those who don’t read or write in rural areas should be made to understand this idea before the federal system is adopted. To be sure that they have understand it and that we are all on the same page, they must cast their votes in the referendum for the federal constitution.