The intricacies of constitution building in South Sudan

By Joseph Geng Akech

About author:

He is a South Sudanese passinate about human rights and constitutional. He has passed his LL.D at the University of Pretoria with thesis titled ‘Foreign influence and the legitimacy of constitution building in South Sudan’. - He will gradute amongst the forthcoming cohort of PhD graduates from the Centre from Human Rights- Universty of Pretoria. He is an alumnus of the LLM in Human Rights and Democratisation at the Faculty of Law, Centre for Human Rights, University of Pretoria. He can be reached on e-mail: josephgakech@gmail.com.

Summary

This blog article provides a summary of the constitution building context and exposes complexities which must be overcome to produce an inclusive and legitimate constitution. It provides a brief history of constitution building to trace underlying unattended intricacies that are compounding the complexities surrounding constitutional design under the Revitalised Agreement on the Resolution of Conflict in South Sudan (R-ARCSS). It then suggests that three aspects – namely; the trust deficit, limited implementation of transitional justice and domineering role of the R-ARCSS’ authors – are key intricacies impacting constitutional legitimacy and the inclusivity of all South Sudanese peoples.

Key events in constitution building

Born in 2011, the Republic of South Sudan still yearns for a ‘permanent’ Constitution whilst it operates under the Transitional Constitution of 2011 as amended. The constitution building process is however swarmed with intricacies which I explain after a brief comment on the overall constitutional design process. The journey towards the permanent constitution can be explained in three landmark phases.

The first phase started in 2012, one year after South Sudan’s independence declaration. In that phase, a three-stage process of arriving at a final constitution was prescribed in the Transitional Constitution, 2011. It included the National Constitutional Review Commission, the National Constitutional Conference and a presidential assent. Although no noteworthy progress was made, the process commenced nonetheless but it was sadly derailed in 2013 when unexpected conflict broke out in the country.

The second phase is marked by the Revitalised Agreement on the Resolution of Conflict in South Sudan (R–ARCSS) which, while acting as a peace agreement, also sought to provide additional and nuanced processes and principles of constitution building. It added mechanisms and broadened the scope of issues by providing non-negotiable principles as preconditions for constitution building process.

The third phase runs parallel in time and scope, to the R-ARCSS. This is the national dialogue process which was launched by the President of the Republic of South Sudan, Salva Kiir Mayardit as an add-on to the R-ARCSS. The architects of national dialogue claimed it was to be a platform to facilitate free and inclusive citizens’ dialogue on constitutional and governance questions.

The penultimate section discusses these phases in detail.

The Akolda Commission

As a key part of independence commitment by and among political elites on the one hand and the people on the other, the process of making the ‘permanent’ Constitution commenced in 2012. This started with the establishment of the National Constitutional Review Commission chaired by late Professor Akolda Tier, a distinguished South Sudanese constitutional scholar. The authority to embark on a permanent constitutional design comes from the Transitional Constitution, 2011 (as amended) which stipulates that ‘this Constitution shall remain in force until the adoption of a permanent constitution’. It puts in place two mechanisms – the National Constitutional Review Commission and the National Constitutional Conference – as bodies to steer through the adoption of the permanent Constitution. The Akolda Commission met with various challenges – financial barriers to carry out its mandate and lack of political will from political parties and actors. In the end, the Commission failed to deliver on its mandate. While the underlying challenges are responsible for a failed outcome, its work was permanently buried when conflict broke out in December 2013 within the ranks and file of the ruling party, the Sudan People’s Liberation Movement and its armed wing, the Sudan People’s Liberation Army which was yet to truly transform into a national army. The constitution building process was only revived under the peace agreement.

The R-ARCSS sets constitutional pre-conditions

The 2013 conflict was temporarily ended when the warring parties signed an Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS) in 2015. One year later, that Agreement collapsed only to be revived in 2018 through the Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS). The R-ARCSS was not only a political agreement, but it radically attempts to transform the State of South Sudan from governance, security and legislative reforms to a wholly new constitution. It provides the principles and process to be followed to adopt the permanent Constitution. In particular, it stipulates that constitutional design shall adopt the principles of

 "Supremacy of the people of South Sudan; federal and democratic system of government, guarantees good governance, constitutionalism, the rule of law, human rights and gender equity; people’s participation in governance through democratic, free and fair elections and the devolution                             of powers and resources to the states and counties."

The R-ARCSS maintains the two mechanisms earlier established under the Transitional Constitution but adds three more mechanisms; namely:

•  Constitutional Drafting Committee (CDC). This institution was created by the parties to the R-ARCSS in 2021 as an hybrid expert group to comprise 12 South Sudanese of legal and political science backgrounds and three foreign constitutional law experts. The CDC will draft the constitutional text.
•  Preparatory Sub-Committee, (to prepare the national conference);  and
• Constituent Assembly which will be a transformed transitional national legislature (Council of States and Transitional Legislative Assembly) mandated to adopt the final constitutional text.

It is to be noted that the R-ARCSS affirms that the process be people led and owned but with international participation in the form of advice and guidance. Due to ensuing disagreements and dissatisfaction, coupled with the R-ARCSS’ own design fault, the government launched a national dialogue process.

The national dialogue forum

In 2017, President Salva Kiir Mayardit launched the national dialogue process as a complement to the R-ARCSS which was dominated by the warring parties and elite organisations. In contrast, the national dialogue process was led by independent and respected individuals and elders who successfully consulted with most South Sudanese from grassroots to national level. The national conference provided a platform for both political elites, civil society and citizens to engage on various aspects of governance and constitutionalism. In the end, the national conference recommended inter alia, term limits, participatory constitution building process and affirmed federalism as a system of governance (but fell short of describing its form). Sadly, the dialogue conference recommendations were thrown into litterbin when the executive declined to implement them. Nonetheless, the recommendations demonstrate that voices sitting outside of the R-ARCSS should be listened to in the constitutional engineering process.

The intricacies: Emerging challenges of inclusivity and legitimacy

I have mentioned elsewhere that certain dilemmas could threaten inclusivity and legitimacy of constitution building in South Sudan. This section enriches those perspectives and focuses on three aspects that might impair constitutional legitimacy and inclusivity as discussed below.

First, the R-ARCSS’ design portrays a self-dealing tendency by the parties to it. For instance, whilst some civil society organisations were included in negotiation of the Agreement, it is the parties that have reserved for themselves the right to renegotiate the text as was witnessed during the formation of State governments. In addition, the parties added another mechanism – the Constitutional Drafting Committee in a workshop in which they were expected to discuss aspects that will form the basis of the legislation to guide the constitutional design process.

Second, the transitional justice mechanisms under chapter five of the R-ARCSS are yet to kick off. Hence, no initiative exists to reconcile divided communities, provide accountability and reparation to victims and survivors of 2013 and 2016 conflicts respectively. There may be no meaningful dialogue and compromise without transitional justice to allow for the nation to heal and recover from its dark past. The absence of transitional justice is a breeding ground for trust deficit among communities and political elites.

Third and last, the R-ARCSS does not provide, in a solid way, how people are to participate in constitutional design. It only declares under the principles to guide constitution building that the process shall be owned and led by the South Sudanese people. This principle emphasises that nationals, and not foreign actors, should lead the process. It does not mean the ordinary people. One would have thought that a referendum on thorny issues be considered to give people a chance to be truly participants in their constitutional design process.

Concluding remarks

The making of a constitution is by nature a complex process. The existence of other intricacies only risk convoluting the process and its outcome. In particular, the design fault of the R-ARCSS – self controlling role by its signatories, limited implementation of crucial aspects like transitional justice and trust deficit amongst the parties, could negatively impact on constitutional legitimacy.