Why upholding constitutional order and the rule of law matters for South Sudan

Posted: December 9, 2016 by PaanLuel Wël Media Ltd. in Columnists, Commentary, Contributing Writers, Featured Articles, Opinion Articles, Opinion Writers

By Tong Kot Kuocnin, Nairobi, Kenya

RSS coat of ARMS

South Sudan’s coat of arms, in which the eagle symbolizes vision, strength, resilience and majesty, and the shield and spear the people’s resolve to protect the sovereignty of their republic and work hard to feed it.

December 9, 2016 (SSB) — The rule of law doctrine envisages that the power of the state and government be only exercised in consonance with applicable laws and set procedures. In this article, I shall labour to bring to forefront why upholding constitutional order and the rule of law matters for the present and future south Sudan. In every democratic country the world over, respect for the rule of law demands the separation of powers of the three arms of government, the legislature, judiciary and executive.

In South Sudan, the legislature and the Judiciary are mere messengers of the executive which only do what appeases the executive and especially, the President. The legislature and judiciary in South Sudan are mere rubber-stamp which only knows how to worship and leaks the shoes of the executive arm of government. Where did they this precedent from? It is crystally envisaged in the doctrine of the rule of law that citizens are able to hold their government accountable through courts law as guaranteed in the constitution and other regional and international legal instruments.

Respect for the principle of the rule of law and constitutionalism denotes far more than laws and constitutions or even regional or international instruments seeking to espouse the virtues of constitutional order. Constitutionalism and the rule of law, importantly, envisage that institutions that seek to support democracy are independent of and separate from the executive and other branches of government. Judicial independence in particular is a crucial guarantor of the rule of law.

While South Sudan has not been robustly engaged thus far in supporting its domestic institutions that seek to support democracy, including courts of law, the recent agreement on the resolution of the conflict in South Sudan renewed hopes and provides avenues, if implemented in letter and spirit, for reforms of the institutions that seek to support democracy.

In fact, beyond any elaborate norms and standards on promoting constitutional order and the rule of law, South Sudan must reach out for both regional and international support to all its endeavours to restore constitutional order and the rule of law. This support must be geared towards provision of constitutional reform process, adopt transitional justice measures as anchored in the agreement, and restore law and order.

South Sudan has endured periods of political and military uncertainty or conflict since the signing of the famous Comprehensive Peace Agreement in 2005. These events have seriously undermined and disturbed all attempts to restoring and maintaining constitutional order and the rule of law before and after its independence in many of its states.

As South Sudan emerges out of conflict, one of the most significant challenges remains the threats to fundamental freedoms and people’s rights. The protection and promotion of human rights and fundamental freedoms which is central to advancing respect for constitutionalism and restores constitutional order and the rule of law remain critically at a stake.

The main challenges to the implementation of constitutional standards and norms include inadequate political will leading to an impunity gap, the absence of a follow-up mechanisms and capacity constraints, all impeded the path to restoring constitutional order the rule of law thus opening the gates for corruption into all the institutions meant to safeguards, protect and defend the constitution and enforce law and order.

Although South Sudan has written constitution, it doesn’t practice constitutional democracy based on respect for the rule of law and the protection of human and people’s rights despite several African Union resolutions calling on all its member states to uphold their own constitutions and protect human and people’s rights of their people as provided for in the African Charter on Human and People’s Rights which has been ratified by 53 of the 54 African Union member states.

This is because respect for human and people’s rights is regarded as one of the pillars of the AU’s efforts to promote democratic principles and consolidate the culture of democracy, constitutional order and the rule of law. For South Sudan to be a stable, peaceful and prosperous country, it must engage itself in articulating clear mechanisms for the implementation of the standards and norms that facilitate restoration of constitutional order and the rule of law.

This could be in the areas of redesigning and training of state officials during the constitution-drafting, legal and institutional reforms and transformation as well as sharing comparable experiences with its neighbors through dialogue and training. Good news is that both the regional and international community are well positioned to support and promote constitutional order and the rule of law programs and initiatives in the country by engaging more proactively in aspects of transitional justice mechanisms.

Only then can South Sudan uphold constitutional order and the rule of law both presently and for the future because the future lies on the present.

The writer is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi specializing in Law, Governance & Democracy. He can be reached via: tongbullen@gmail.com.      

The opinion expressed here is solely the view of the writer. The veracity of any claim made are the responsibility of the author, not PaanLuel Wël: South Sudanese Bloggers (SSB) website. If you want to submit an opinion article or news analysis, please email it to paanluel2011@gmail.com. SSB do reserve the right to edit material before publication. Please include your full name, email address and the country you are writings.

  1. This article is quite in line with the essential theories of constitutional operations and the rule of law. But the pregnancy and the birth of South Sudan, from 1983 to 2005, witnessed one of the biggest war in African. Thus finding itself in a territory whose infrastructure, in all fields, had been destroyed by an enemy of democracy, the Islamic dictatorship in Khartoum, Sudan then and now.

    The SPLM, after the 2005’s Comprehensive Peace Agreement, CPA, emerged to become a part of Khartoum’s Government for six years. Following the independent in 2011, the Republic of South Sudan adopted a democratic constitution which embodied the Bills of Rights and the three pillars of Governance: The Executive, Legislature and Judiciary, very well set and designated to suit and promote constitutional and the rule of law, as the fundamental national commitment.

    But, unfortunately, the democratic institutions are far from perfection to carter for rule of law.


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