By Malith Alier
A constitution is a legal charter by which the modern state derives its legal framework. The existence of a modern state could be meaningless without a “source” that guides and gives it a direction to follow.
A constitution is what mitigates the chaotic environment under which the modern state exists. This definition is author’s attempt with no reference elsewhere. Note also that the author is not a legal expert.
Candidly speaking, a constitution is a big volume with many parts on many subjects such as power, internal and external rules, how to allocation resources, how to deal with crime and any other issue a particular state may adopt.
There are two types of constitutions, written and unwritten constitutions. Great Britain has unwritten constitution and South Sudan has a written one.
Prior to independence of the Sudan in 1956, a country called Southern Sudan was forcefully united with Sudan to become one country as the British prepared to leave. The Sudan became one country under one constitution on the above date.
The Constitution of the Sudan was not well known because people in the southern part were largely illiterate and were oblivious of the national happenings. This illiteracy resulted in people interpreting the constitution in their own way. They came up with what may be referred to as a village constitution.
A constitution of my village could have been a two page document if it were written. That constitution could also have been full of facts mixed with anecdotes and hearsay. Either way, the constitution guided the people of my village who were and are still the backbone of the country’s economy. At the same time they offer unwavering support to the political establishment in the state.
In my village where I grew up from, the constitution is unwritten like the British one. It was however, maintained in the psyche of the elders as custodians of it form of customary law.
That constitution is precise. It has no clauses on women rights, child rights, gay rights and many other mushrooming rights of today. However, this does not mean that there were no specific rights for the above groups except gays.
I remember the following assertions from the unwritten constitution of my village;
1* that if you don’t pay taxes you will not be compensated if killed
2* you won’t be given a leadership position if unmarried
3* Pay taxes to the government in towns and cities but expect no services in return
4* election should be by consensus
Now let’s examine these assertions in light of today’s South Sudan Transitional Constitution.
1* in the TCSS there is a clause that requires individuals to pay taxes in form of Personal Income Tax (PIT). In the same way, businesses as legal entities pay Business Profit Tax (BPT) or simply corporate tax.
There is no connection between paying or not paying taxes with criminal murder or manslaughter. What is in the law is that an individual or corporation may be charged for tax evasion. Note the difference between tax evasion and tax avoidance. It is illegal to evade taxes. Note also that people claim that there are two things one won’t avoid in life; taxes and death are “must meet phenomena.”
2* Condoleezza Rice of the USA was appointed a Secretary of State though unmarried. Being unmarried in my village constitution may be equated to being an underage. In the current TCSS, one can vote or hold certain positions at the age of 21. You can even become president at forty (40) years. There is no requirement for a marriage certificate here.
3* I think the issue of taxation was misunderstood by then. Some people thought that taxes are used as a form of punishment for certain crimes. It nearly happened in Jonglei when the youth were accused of sloth. The governor there wanted to reintroduce taxes so that the idle youth may be induced to work because taxes are coming their way.
Forcing people to work in order to pay taxes has no basis and at the same time may be unconstitutional. Taxes are simply paid in order for the government of the day to deliver services like health, education, maintain security and the likes.
In the past, everybody was required to pay taxes willy nilly. In the old Sudan taxes were determined by your age. Anybody from 18yrs and above must pay taxes full stop. The poor farmers (traditional farmers) were required to pay from their produce in forms of grains or livestock. At the later time, the same farmers were able to pay in money.
What was very interesting was that nobody expected services in return of taxes paid. It was like what Jesus said “give Caesar what belongs to Caesar”
4* the elections of those days were really messy. I remember voting at the age of seven for someone whose name or office to be elected to I didn’t know. This occurred on a village school in the late 1970s. Simply, everybody including children used to vote in the old Sudan.
Another issue which is still in existence today is the consensus around one candidate. You would often hear that Mr. so and so should be allowed an opposed. The last election in 2010 saw this drive for consensus and preferred candidates. This is a tool used to bar opposition candidates who may also have sizeable support in a constituency.
It was used by parties and by certain communities but it came with consequences. Some candidates broke away in the last election and contested as independents. This is a direct result of the bias consensus expectation.
The current TCSS of South Sudan is at odds with some aspects of customary law. This is also true of international conventions that South Sudan already ratified. Majority of UN conventions had been ratified in their entirety.