Why upholding constitutional order and the rule of law matters for South Sudan
5 min readBy Tong Kot Kuocnin, Nairobi, Kenya
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.
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