South Sudan: The Imperative of Finalizing a Permanent Constitution Before General Elections in 2024

Before we talk of general elections, have we answered the question of the systems of government and elections in South Sudan: The need for a permanent constitution

By Juol Nhomngek Daniel, Juba, South Sudan

• Introduction

Saturday, 30 December 2023 (PW) — The system of government defines the extent of the strength of the citizen power, stable security and peace in the country. The main role of the Constitution is to define the system and the limit of the powers each actor and institution of the government in charge of the system has. The institution is in charge of the system and the system is in charge of the Constitution and the constitution is in charge of all. The constitution gives to and at the same time takes the powers from individuals and institutions. The aim of the constitution is to establish the strong system. The strong system exists where there is equilibrium of power, that is, where no one in the system or institution possesses more powers than necessary under the law. This is the concept of the rule of law and it is stipulated in law and by law itself.

• The meaning of the Constitution’s making and building

Establishing a strong system depends on the process of constitution making and building, which is a long-term process. The constitution making and building are not an event and should not be equated with the sole process of drafting of a constitution. It is unfortunate that many of our academics who are involved in the current debate in different groups physically and on social media platforms visually are only looking at the process of drafting the constitution and the participation of the citizens without looking beyond factors that affect the final constitution that public participated and drafted nicely.

 For South Sudan to come up with good Constitution and strong system of government, we must understand the relationship between the institutional design and constitution building. Proper understanding of the relationship between the two can help in properly getting the right answer to our current debates over who should make the constitution, how long the making of the constitution should last and what stage should the Constitution be made. The Constitution making and building processes are not like general elections where the public is called upon to make a decision there and then. They are long processes that begin as political and end as the legal document.

Under the Revitalized Agreement, it is important to understand that the political process is the process of implementing the agreement as it outlines the steps to be taken in implementing the Agreement until the Constitution is made. Therefore, any attempt to over jump a step or several steps in the implementation of the Agreement may plant crisis in the next system of the government. The questions that those who argue that the general elections should be held before the conclusion of the implementation of the Agreement must answer is, is it possible to hold elections without proper system of government and elections in place and how do we control the electoral disputes that may arise as a result of unprepared elections?

To design system that can control the occurrence of future conflict is not the work of the public but it is the exclusive role of politicians that is only confirmed by the citizens under the directives of the politicians. As Professor Yash Ghai and Guido Gall have observed in their work, the centrality of the constitution is enhanced by the fact that many contemporary conflicts are about the design of the state and thus involve, fundamentally, its constitution. What is at stake in South Sudan is not the participation of the people in constitution making process per se but the design of the inclusive state that politicians are the ones to develop based on ideological orientation. This is what the Revitalized Agreement is all about in general.

• Revitalized Agreement and Permanent Constitution

The Revitalized Agreement is the document that is intended to establish the system which is accountable to the public by enshrining the culture of transparent and accountable institutions. Implementing the Revitalized Agreement in letter and spirit can enable us to establish procedures that embody the rules for constitution making or drafting that gives legal effect to the final constitution and its post implementation.

Article 6.2 of the Revitalised Agreement provides for the principles and procedures of making Permanent Constitution. Moreover, Articles 6.2,1 to 6.2.8 of the Revitalized Agreement provide for the principles on which the permanent constitution shall be based on. In accordance with these principles the major goals of permanent constitution is to ensure proper allocation of powers and national resources, reconciliations and healing, accountable and transparent system. These goals are provided for under Chapters IV, V and VI of the Revitalized Agreement. These chapters are therefore the heart of the building strong institutions on which the system of government in South Sudan can be established on.

• What is the Revitalized Agreement is trying to achieve? The less understood part

What many have not fully understood about the Revitalized Agreement is the fact that the constitution-making is not envisaged to be an independent process from the implementation of the Agreement. Rather, it is the part of simultaneous wider process of the implementation of the Agreement that begins with the ending of armed conflict and ends with the establishment of a peaceful order. This simultaneous process is clearly outlined in accordance with the Chapters of the Revitalized Agreement as follows—

It begins with the formation of government of national unity, follows by a cease-fire, then the control of weapons or security arrangements, which is part of confidence-building measures and followed by tentative understandings of truth, healing and reconciliation processes, besides, negotiations of impunity and continuous interim arrangements. The continuous interim arrangement is seen in the continuing process of negotiation with rebels or excluded groups so that they are included in the main Agreement and eventually incorporated in the government of National Unity.

Also, as the issues of the implementation of the Agreement are being negotiated, the principal parties to Revitalized Agreement continue with the negotiation of the principles of the new constitutional order that will be finally followed by general elections. This sequent approach to the resolution of issues in the agreement is in other words, the process of establishing the strong system of governance and elections.

 Understanding this process is important for us to clearly get the rationales behind the complex nature of the Revitalized Agreement and why its implementation is very slow. It is important for the people to understand that establishing the system is not as easier as the debate over what should the good system be. It is a practical process that followed well established and clear far looking into the future principles. For that reason, it is slow and if not handled with care, it will easily take the people back to square one.  

•  Systems of government and the best choice for South Sudan

• The Presidential System

The first system of government that we need to know is the presidential system. This is the system where the executive and legislature are separate agents of the electorate that defines their separate origin and survival.  Under the presidential system, the President is both the head of state and the head of government.  He or she is elected through popular vote across the country.

The President’s term of office under this system is fixed. The Parliament does not have a power to cast no vote of confidence against the president.  Moreover, the president is neither politically accountable to the legislature nor dependent on his or her party’s support to stay in office. The Cabinet derives its authority exclusively from the president. The president has some political impact on the process of law-making.

 The main shortcoming of the presidential system is that it creates the possibility of an impasse between the Executive and Legislature that cannot be easily resolved.  In most cases, such impasse ends up in the dissolution of the government and calling for the earlier elections.

• The Parliamentary System

Apart from the Presidential system as discussed above, another system that exists is the parliamentary system. The main criterion of this system is the fusion of powers and the executive is subordinate to the legislature.  The executive depends on the legislature for survival. Under this system, the head of government and the head of state exist separately.

The head of government is also known as the prime minister. He or she is elected by the legislatures and is answerable to them through a vote of no confidence. The head of government can be removed at any time if his or her political programme no longer reflects the will of the majority in the Parliament. However, the head of the Government is dependent on his or her party for political support.

Unfortunately, the head of the government holds some powers and where he or she loses political support of the majority in the Parliament, he or she might dissolve the government and call for earlier elections as already stated above. When it comes to the head of state under this system, he or she is often a monarch or ceremonial President who does not have executive powers like the President under the Presidential system. The two main advantages of a parliamentary system are that—

First, it creates a broad and inclusive government in a deeply divided society like the case of South Sudan; and second, the legislative process under the Parliamentary system is faster since no political veto of the executive to block such a process exists. This takes me to the next system of government.

• Mixed system

Apart from the two systems already discussed above, there is also mixed system, which is often referred to as a ‘semi-presidential system. The key characteristic of a mixed system is a dual executive. It combines a transactional relationship between the executive and the legislature with a hierarchical one.

 Under this system, the President serves as the head of state and he or she is elected by popular vote. The prime minister may be appointed under this system as the head of administration in the government. Neither the President nor the legislature is in full control of selecting, appointing and removing the Prime Minister.

The Prime Minister as the head of government is accountable to Parliament through a vote of no confidence. The President under the mixed system possesses quite considerable executive powers. Knowing these three types of systems of government may help us to choose the best system and electoral system that can help South Sudan achieve everlasting peace.

• Electoral system

Once the country has a distinct system of governance, the electoral system can be easily defined. The only way of defining the system of government and electoral system is to have a stable and democratic constitution. The democratic constitution then defines the distinct system of government and its functions and the modality of changing the government.

After passing the constitution that establishes the systems of government and elections, South Sudan will then develop the set of rules that determine how elections and referenda are conducted. This can be possible only if we have the constitution that establishes the system of government and its nature that will determine the rules and process of the elections.

• Conclusion

I have to conclude that based on the foregoing arguments, we cannot hold elections without establishing the system of government that can help us to design appropriate electoral system for South Sudan. When it comes to the appropriate system of government for South Sudan, I recommend the Parliamentary system where the executive is subordinate to the legislature and it depends on the legislature for survival.

The reasons for recommending the parliamentary system are that— First, it is inclusive that will help reduce marginalization of some communities; and second, it reduces the electoral disputes that is common with the presidential system as legislatures are the ones who elect their member within parliament to the head of government.

In short, we should not be forced by conditions to choose unsustainable path and I have to emphasize that we cannot hold elections unless we have the constitution in place. We must first have the constitution that defines the system of governance, types of elections and electoral process in South Sudan.

The author, Juol Nhomngek Daniel, is a member of the National Parliament (TNLA) representing Chueibet County in Lakes State on the ticket of the SPLM-IO. He is lawyer specializing in the Constitution law and human rights. He can be reached through: nhomngekjuol@gmail.com.

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