South Sudan Justice and Constitutional Affairs Minister, Justice Ruben Madol Arol Kachuol: “Legal opinion on the permanent constitution-making and national elections in South Sudan.”
Tuesday, 02 April 2024 (PW) — South Sudan, the world’s youngest nation, continues to grapple with a critical decision that could shape its future – whether to prioritize the adoption of a permanent constitution or proceed with national elections without a final constitution in place. This dilemma stems from delays in implementing the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), which was signed in 2018 to end the country’s civil war.
According to the R-ARCSS, the Permanent Constitution-Making Process (CMP) was supposed to be completed within 24 months of the start of the Transitional Period, paving the way for national elections 60 days before the end of the Transitional Period. However, as Justice Ruben Madol Arol Kachuol, the Minister of Justice and Constitutional Affairs, outlines in his legal opinion, implementation constraints have caused significant delays, necessitating an extension of the Transitional Period until February 22, 2025.
Justice Madol Arol Kachuol outlines three possible scenarios: Scenario 1: Holding elections on time, as per the Extension Agreement, while postponing the constitution-making process until after the elections. 2: Completing the Constitutional Making Process before holding elections. 3: Maintaining the sequencing of the CMP and elections as per the R-ARCSS but extending the Transitional Period to allow enough time for the CMP.
One, “Elections First, Constitution Later” raises legal concerns about the elections’ basis without a permanent constitution. First, holding elections without a permanent constitution contradicts the R-ARCSS sequencing and raises questions about the legal basis for such elections. The Transitional Constitution of 2011 (TCSS) would remain in effect, binding the newly elected government to a system they did not choose, potentially undermining their democratic mandate.
Furthermore, the absence of a permanent constitution could be perceived as pre-empting future options and power-sharing arrangements, especially regarding the system of government. Amidst a contracted civic space and potential security concerns, the fairness and legitimacy of the electoral process could be questioned, risking unrest and violence.
Two, while “Constitution First, Elections Later” adheres to the R-ARCSS sequencing, the tight timeframe poses challenges in ensuring a truly participatory and inclusive constitutional-making process, as mandated by the peace agreement. A rushed CMP may result in a constitution lacking legitimacy and public acceptance, potentially impacting the perceived fairness of the subsequent electoral process.
Three, “Extending the Transitional Period” to allow sufficient time for the CMP and elections could provide legal clarity and adhere to the R-ARCSS sequencing. However, this scenario would require all parties to sign an extension agreement, which may not be well-received by the South Sudanese public, especially given the awareness around the significance of adopting a permanent constitution before elections.
Justice Madol Arol Kachuol proposes a “Consensus Agreement” as a possible way forward, providing a compromise solution amidst conflicting positions among political actors. Such an agreement would establish guarantees for all parties should national elections precede the adoption of the Permanent Constitution.
The Consensus Agreement would clarify the framework within which the CMP would unfold following the elections, preventing unilateral actions and ensuring adherence to the procedures enshrined in the Constitution-Making Process Act (CMPA). It would incorporate substantive principles from the R-ARCSS to inform the process of making a Permanent Constitution, while allowing for outstanding aspects of the peace agreement to be carried over into the post-transitional period through constitutional anchoring.
Justice Madol Arol Kachuol emphasizes the permanent constitution must adhere to federal and democratic governance principles, guaranteeing peace, stability, national unity, and territorial integrity. Key elements could include constitutional reforms limiting emergency powers, legislative reforms leveling the playing field, security guarantees for participants and voters, regional/international monitoring, and upholding R-ARCSS principles like transitional justice.
While each scenario presents challenges, the Consensus Agreement offers a potential compromise addressing legal, political, and security concerns. International involvement may be pivotal in ensuring transparency and inclusivity, whichever path is chosen. As the world’s youngest nation continues its nation-building efforts, the permanent constitution and national elections remain pivotal milestones in South Sudan’s journey towards lasting peace, stability, and democratic governance.
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