Of excessive presidential powers and centralization: Why the 2011 Constitution isn’t the will of the people
“In South Sudan, owing to a very poor understanding of international principles about constitutions, the President thinks he is the principal author and beneficiary of the Constitution. Many a time, the President becomes the constitution,” partly reads a manifesto of the National Salvation Front, a South Sudanese armed Opposition movement, calling for “crafting and adopting, through a wide consultative process, a modern, democratic, truly federal constitution with institutional checks and balances.”
By Roger Alfred Yoron Modi, Juba, South Sudan
August 18, 2017 (SSB) — President Salva Kiir’s recent firing of 14 Judges including justices from South Sudan court of appeal and the high court received intense condemnation from the civil society and members of the legal fraternity who, rightly, see the move as an interference with the independence of the judiciary and administration of justice in world’s youngest nation.
The sacked judges have been on an open-ended strike since early May. Their demands include higher wages and better working conditions, and the resignation of chief justice Chan Reech Madut who they accused of having compromised the independence of the Judiciary.
Some of the Judges who have not been dismissed have vowed to continue with the strike, demanding that president Kiir meets all their demands, including the reinstatement of the 14 sacked Judges or else he should dismiss all of them who are on strike.
“We the general assembly of Justices and Judges across South Sudan, in our urgent meeting held at the Judiciary headquarters in Juba and in all the states, on this 14th day of July, 2017, have resolved to continue with our open strike in solidarity with our honourable dismissed justices and judges until our demands are met,” partly reads a statement by the Judges.
South Sudan’s Transitional Constitution provides for the establishment of a National Judicial Service Commission, a body upon whose recommendation, the president may remove Justices and Judges. But since independence in 2011, to date, neither the Commission has been formed nor has the legislation for its operations been enacted.
Kiir has in the past unconstitutionally dismissed Judges, including the country’s deputy chief justice, Madol Arol Kachuol, who he removed after an alliance of Political Parties that petitioned the Constitutionality of the President’s order partitioning South Sudan into 28 states allegedly indicated that he (Arol) presided over the case – arguing that the chief justice Chan Reec Madut, who had publicly congratulated Kiir for the creation of the states, recused himself due to conflict of interest.
Others like, Justice John Clement Kuc had long resigned citing “bad administration, corruption, nepotism and favoritism” in the judiciary.
Continues interferences from the executive, coupled with dictatorial laws, lack of political will, and some loopholes have thoroughly compromised the independence of the Judiciary, making the attainment of justice mostly impossible.
By implication, this has also affected, amongst others, the state of freedom of expression and the media, and democracy in the country since the courts have been paralyzed and are unable to deliver justice, especially where the executive seeks to protect its otherwise unlawful or unconstitutional interest.
Separations of powers and checks and balances have all been compromised with excessive powers centralized in the presidency.
The President rules by decrees and exercised the excessive powers given to him by the Transitional Constitution to dismiss elected state governors and dissolve state legislative assemblies, among others.
Presidential appointments and firing of officials spearheading several institutions such as the Anti-Corruption Commission, Human Rights Commission and others, have also comprised the independence and work of those bodies.
South Sudanese, having struggled for freedom and democracy for decades, are not happy and not in agreement with the repression today and the monopoly whereby the President and a clique have hijacked the Country from birth and continue to hold it hostage using unconventional and unconstitutional law-making processes.
The people of South Sudan have been caught off guard and did not see such a systemic and institutionalized repression coming.
Brief Historical Background
When one of Africa’s longest civil wars came to an end, thanks to the 2005 IGAD-brokered Comprehensive Peace Agreement CPA between the Sudanese government and the Sudan People’s Liberation Movement/A (SPLM/A), Southern Sudanese were granted, amongst others, a semi-autonomous government and the right to vote in a referendum to either confirm unity or secession, the plebiscite which subsequently led to South Sudan’s Independence.
The CPA also granted for a six-year interim period under which the SPLM would take 70 percent of the government in the South, the NCP 15 percent and the remaining 15 percent for other political parties pending general elections. After the death of Dr. John Garang de Mabior who has been in power for only less than a month, Salva Kiir took over as First Vice President of the Sudan and President of the Government of Southern Sudan GOSS, in line with the CPA.
The power sharing was implemented at all levels of government in the South and consequently, an interim Southern Sudan Legislative Assembly made up of 70 percent SPLM members appointed by Kiir was formed.
Under this period, many legislations giving excessive powers to the president, including the power to remove chairpersons and members of ought to be independent commissions and bodies have been enacted.
And despite entering a new arrangement and era with independence declaration, those laws continue to be in force, pursuant to explicit provisions of the Transitional Constitution which the SPLM single-handedly made for the new nation.
The only Elections were held Seven Years Ago under One Sudan
Though several months behind the constitutionally stipulate period, in March 2010, the general elections for the Southern Sudan semi-autonomous region and for the whole of Sudan were eventually done; the results were contested with several reports and claims of riggings, intimidations of candidates and voters, and other electoral malpractices.
Salva Kiir was declared having won the Southern Sudan Presidency by 93 percent, beating his rival Dr. Lam Akol Ajawin. Over 90 percent of the SSLA seats were won by the SPLM, the same were for the seats of state governors and state assemblies.
The problems of governance in post-referendum South Sudan
Despite several delays and reneging from both the central governments in Khartoum and the semi-autonomous one in the South, the CPA stood as the most successful agreement in the Country’s history in terms of implementation.
The terms of the CPA, right from the start of implementation, were incorporated into both the Interim National Constitution of the Republic of Sudan INCRS and the Interim Constitution of Southern Sudan ICSS. That, amongst others, made its implementation possible.
But unfortunately, however, neither did the CPA nor the two Constitutions ICSS and INCR laid down a roadmap as to what shall happen in the case of secession with regards to power and the system of rule, and the need for a Constitution for and by the people of the would be a South Sudanese republic.
Thus, with respect to the referendum vote, the INCRS simply provided that, “If the outcome of the referendum on self-determination favours secession, the parts, chapters, articles, sub-articles, and schedules of this Constitution that provide for southern Sudan institutions, representation, rights, and obligations shall be deemed to have been duly repealed.”
Whereas the ICSS provided that, “If the outcome of the referendum on self-determination favours secession, this Constitution shall remain in force as the Constitution of a sovereign and independent Southern Sudan, and the parts, chapters, articles, sub-articles, and schedules of this Constitution that provide for national institutions, representation, rights, and obligations shall be deemed to have been duly repealed.”
The drafters (mediators) of the CPA might have thought that it would be implemented fully, in letter and spirit, and as a result strong democratic institutions and space would have been created by the end of the Agreement that would make it possible for the will of the people to continue flourishing, regardless of the referendum results.
SPLM dishonored Political Parties Consensus
In 2010, a Southern Sudan All Political Parties’ Conference held in Juba under the theme “Southern Sudan United for a free, fair and transparent referendum” came up with a joint Communiqué, agreeing on a road map for working together before, during and after the referendum exercise.
The conference which was convened by President Kiir committed itself “to adhere to the principles of democracy and respect of multiparty system.”
The Joint Communiqué partly read:
“The parties call on the Government of Southern Sudan (GoSS) and its ruling party – The Sudan Peoples’ Liberation Movement (SPLM), to ensure that political parties exercise the freedom of association and expression all over Southern Sudan. All efforts must be exerted to redress the political and military consequences of the contested elections results as these consequences can certainly affect the referendum process.”
“In the event that separation is the winning option in the referendum, this Conference shall be reconvened as a National Constitutional Conference within one month from the announcement of the result of the referendum to: 1) Carry out a constitutional review on the Interim Constitution of Southern Sudan 2005; 2) draft a permanent constitution for the newly independent and sovereign state of South Sudan; 3) discuss and agree on an interim broad-based national government, under the current President of the Government of Southern Sudan Salva Kiir Mayardit, to assume office as of 10 July 2011. This government will be charged, inter alia, with the duty to carry out the general elections for the Constituent Assembly that will pass the permanent constitution; 4) decide on the length of the interim period, necessary to carry out the general elections for the Constituent Assembly.”
But this Communiqué was never implemented and right after the referendum results, the ruling SPLM pursued a rather dictatorial path.
Constitution without the approval and participation of the people
Just weeks after the referendum results were declared in favor of secession; President Kiir formed a Committee to review the Interim Constitution of Southern Sudan and to make recommendations for presentation before the Southern Sudan Legislative Assembly SSLA.
Kiir tasked the Committee to, amongst others; suggest the deletion and insertion of certain provisions to transform the Interim Constitution “from a regional or sub-national Constitution to a constitution for an independent state.”
After several outcries on the membership of the committee, the President added some representatives of the civil societies, religious groups, and other political parties but still the SPLM constituted most of the committee’s total membership.
A few weeks later, however, nine political parties withdrew from the process saying their continuity in the committee became untenable.
The parties jointly accused the SPLM, who had 41 members versus 11 members of other political parties, of using the monopoly of numbers by imposing a vote in place of consensus during deliberations and decision-making, in violation of the committees’ rules of procedures.
“The SPLM have no intention to allow the other Southern Sudan political parties to effectively participate in writing the transitional constitution of South Sudan. On the contrary, they want the transitional [Constitution] to reflect the interest of the SPLM alone,” the nine political parties said at the time.
“The SPLM has clearly shown that it is not committed to democracy, good govern[ance] and the rule of law. As such and to avoid rubber stamping only SPLM dictates, we the other political parties have decided to pull out from the constitutional review committee.”
The parties also disagreed with the committee, arguing that the Southern Sudan Legislative Assembly was a sub-system within the Sudan and that there was no legal basis for it to be carried forward in the independent republic of South Sudan. They said they wanted a shorter transition, followed by parliamentary elections for the new republic.
The SPLM, the parties argued, violated the roadmap for post referendum arrangement’s and the spirit of consensus the Southern Sudan All Political Parties’ Conference adopted in the 2010 Communiqué.
On his part, Dr. Machar who was then Kiir’s deputy both at the regional government and the SPLM party was also critical of the draft Constitution and the excessive powers that were given to the president. Machar, however, went silent on the matters after Kiir accused him of running a parallel government within his government.
The majority of the public was for a federal system and an all-inclusive constitutional making but they gave up when the government insisted that it was only carrying a mere amendment in order to have a “functioning” Constitution for an Independent State which was to be declared in a few months’ time.
That, however, was proven wrong, when the document passed by the SSLA, reportedly after intimidations, and then promulgated by President Kiir on the date of Independence dubbed Transitional Constitution, made very many broad changes and introduced new provisions.
The old Constitution was more democratic and considerate of the nature of South Sudan’s diversity than the new one. That disappointed a lot South Sudanese though they continued to hope for an amicable redress.
The Constitution extended the terms of the sub-national government of Kiir for a four year transitional period in the new Country at the end of which general elections ought to have been done in 2015.
Contrary to the aspirations of many, the Constitution came without presidential term limit. It further gave the president the powers to appoint more members of parliament and establish a lower house of the national legislature called Council of States. This Council of States would later in a controversial and disputed move, “amend” the Transitional Constitution to legitimize President Kiir’s partitioning of the Country into more than the constitutionally sanctioned 10 states.
The new Constitution removed from the States and gave the central government, among others, one of the key areas of decentralization which was established during the CPA era: the State Judiciaries.
Scholars have argued that most of the changes and the promulgation of the Transitional Constitution were themselves unprocedural and unconstitutional since only a clique of the ruling partly single-handedly made them without the approval and inclusive participation of the people of South Sudan.
South Sudan Today
In 2011 the Kiir led government promised and enshrined in the Transitional Constitution that after independence declaration, a “Permanent Constitution” would be made through an inclusive, transparent and equitable participation of the political, social and regional diversity of the people of South Sudan.
Still, the Transitional Constitution gave the president wide monopoly over the whole process and in 2012 he established the Commission to undertake the task.
But several delays, intentionally or otherwise, including the war ensued and to up to date the Commission failed to deliver and there is no permanent Constitution to talk about.
General elections stipulated in the Transitional Constitution have not taken place. The terms of the president, the parliament, and all elective offices lapsed a long time ago, though they purported to have extended through a constitutional amendment.
The popular stand is that the South Sudanese government and officials in power had been legitimized through the formation of the coalition (unity) government per the IGAD-mediated 2015 peace agreement, though the legitimacy of the latter itself is currently being questioned due to the continued war and the fallout among its signatories, some of whom now consider the pact dead.
The peace agreement has a clear roadmap to addressing the monopoly of power, providing for improved separation of powers, checks, and balances, independence of Judiciary and devolution of more power and resources to other institutions including to the states.
It has provided for review of the establishing legislations (Acts) and reconstitution of several institutions, including the National Constitution Review Commission, the Judicial Service Commission, Human Rights Commission and Land Commission, with specific attention to their mandates and appointments, to ensure their independence and accountability.
The agreement further set the parameters of the permanent Constitution to be made to include initiating of a federal democratic system of government that guarantees, amongst others, the supremacy of the people of South Sudan, good governance, constitutionalism, rule of law and human rights.
The Agreement certainly offered the best options but its implementation is largely lagging behind amid the raging war.
Though the government insists they are on course, they are doing totally different things and have up to date neither amended a single legislation nor have they even incorporated the Agreement into the Transitional Constitution as required.
IGAD on their part has convened what it calls “a High-level Revitalization Forum of the parties to the ARCSS including estranged groups to discuss concrete measures, to restore permanent ceasefire, to full implementation of the Peace Agreement and to develop a revised and realistic timeline and implementation schedule towards a democratic election at the end of the transition period.” But on the ground, there is no progress of that.
The SPLA/M–IO faction of Dr. Machar has reportedly called on IGAD to “relinquish leadership of the peace process in South Sudan and allow for a different and neutral body to take over the process.” They propose the AU to lead with the support of the international community.
Several South Sudanese and others have also called on AU to take over the peace mediation, accusing IGAD of not being credible.
The Troika and EU also reportedly said they “cannot continue to indefinitely support ARCSS [the Peace Agreement] implementation activities and institutions if they are unable to contribute to peace due to the lack of meaningful inclusion of parties to the conflict.”
On the other hand, the national dialogue which president Kiir initiated, defined its parameters, appointed all its members and can easily remove them as he wishes, is not showing sign of progress, partly due to the lack of free space for dialogue, lack of assurances for the implementation of its outcomes, and the lack of participation of major opposition groups.
Also, though the South Sudan conflict began in 2013 after SPLM leaders disagreed among themselves, the current reunification of the SPLM factions into one party being pursued through President Yoweri Museveni, purportedly pursuant to the 2014 Arusha Agreement, can never be a comprehensive alternative.
This is because the only armed SPLM opposition faction is not part of the process, and because several new armed and unarmed opposition groups who are not SPLM have emerged.
It is also worth recalling that it was the SPLM leaders, as united before the war, whom discouraged democracy and made the bad laws and the Constitution currently governing the country. Their mere unity without addressing the issues of war and governance facing the Country cannot be a remedy.
Conclusions
While a lot has been voiced on the need to urgently restore peace, it is crucial that to maintain peace, whether through an all-inclusive revitalization of the ARCSS or through a new and genuine initiative, priority should be given to an all-inclusive Constitution making, in an environment free of fear and intimidation.
This is where South Sudanese for the first time would be able to discuss and address the issues they have been continuously deprived of: excessive powers of the president, separation of powers, checks and balances, independence of the judiciary, democracy, federalism, and a lot more about the Constitution they want.
This will also lead to the first ever elections in the youngest nation, where currently none of its leaders has a direct mandate from the people.
For unchecked and unaddressed issues of powers have only resulted in the use of those powers to buying loyalty at the expense of democracy and services, dividing the people in an attempt to gain military victory—all these keep only acerbating the conflict while discouraging the need for a civilian rule with the people’s mandate and demilitarization of politics as well as de-politicization of military in South Sudan.
Roger Alfred Yoron Modi, a South Sudanese journalist, is the former Managing Editor of the Juba Monitor Newspaper and former Chief Editor of Bakhita Radio. He can be reached via his email: rogeryoron@gmail.com
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