By: Stephen Pande

Justice Africa

Tuesday, 23 April, 2012

Introduction

This paper will examine the Transitional Constitution of South Sudan through the lens of some generally acknowledged good practices of governance.

The paper will begin by outlining its conceptual framework and then analyze whether or not the forms of governance provided for in the Transitional Constitution are in line with international norms. Subsequently, the paper will examine the values of the liberation struggle and whether these are upheld in the Transitional Constitution. Finally, the paper will outline recommendations for what should be discussed in the process of making the permanent constitution.

 

Conceptual Framework

A national constitution is the instrument that defines the fundamental principles and institutions of governance in that country. It does so by establishing the basic structures and powers of government, determining their terms of reference, and regulating the relationships between them. A constitution is therefore a power map that defines the relationship between different arms of government.

This paper will use a threefold conceptual framework which will examine the Transitional Constitution through;

• A political perspective that recognizes some widely accepted best practices of governance,
• A historical analysis based on the view that constitutions are often the result of a break from the past – and consequently the values that necessitated such a change should be incorporated when re-defining the emerging new polity.
• A sociological perspective that focuses on the argument that the “Will of the People’’ should be the foundation of state formation

The underlying presumption behind this conceptual framework is the conviction that democracy is the most effective and legitimate means of governance and therefore, the basic principles of democracy are the benchmarks of good governance.

 

Best practices of governance

Elections and the distribution of positions in government

The 2002 African Union Heads of States and Government’s 38^th Ordinary Session in Durban South Africa articulated the following as part of the AU Principles of Democratic Elections;

1. Democratic elections are the basis of the authority of any representative government;

2. Regular elections constitute a key element of the democratization process and therefore are essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability and development;

3. The holding of democratic elections is an important dimension in conflict prevention, management and resolution;

4. Democratic elections should be conducted;

• freely and fairly;
• under democratic constitutions and in compliance with supportive legal instruments;
• under a system of separation of powers that ensures in particular, the independence of the judiciary;
• at regular intervals, as provided for in National Constitutions;
• by impartial, all-inclusive, competent and accountable electoral institutions staffed by well-trained personnel and equipped with adequate logistical requirements.

The Transitional Constitution does not provide for most of these best practices regarding elections. For example, it does not have a provision on how and when elections will be held after the transitional period.[1] While it is indeed commendable that the Transitional Constitution provides that South Sudan is a multiparty democracy and recognizes the significant role of political parties by listing them as stakeholders in the making of the Permanent Constitution (although the number of representatives of political parties and CSOs nominated to the constitutional Review commission has been considered unfair by these two sectors), it should have provided a framework for elections. This has led to the peculiar position of the government drafting legislation on elections that are not guided by a constitution.

Elections will be a definite provision of the permanent constitution. The civil society and political parties should therefore discuss and place submissions on issues relating to elections. In so doing it is important to examine what most constitutions traditionally define, which include;

• How positions in the constitutional and support structures are filled
• The terms, period and termination of service of constitutional office holder and other senior public officials
• Specified term limits of constitutional positions
• Methodology for removal prior to completion of term

The provision for a bi-cameral house by the Transitional Constitution

In consideration of the significance of elections in democratic governance it is necessary to briefly discuss the provision for a bi-cameral house by the Transitional Constitution.

The Transitional Constitution provides for a National Legislature that is composed of two houses; the National Legislative Assembly and the Council of States. Members of the National Legislative Assembly are elected by the people and those of the Council of states are elected through their respective State Assemblies.

Interestingly, the two houses conduct their business in joint sittings chaired by the same speaker. How the two-tier house conducts its business is complicated. For example, if a bill falls within the competences of both Houses, the National Legislative Assembly first discusses the issue and the Council of States is only allowed to decide on it if an “Inter-House Committee” (whose composition is not determined by the Transitional Constitution) forwards it to the Council of States. The administration of proceedings is also very complicated. For example, quorum is to be applied to each house separately and their vote count is also separate. 

While it is clear that the Transitional Constitution establishes a two-tier legislature, it is unclear why key roles, particularly the role of authorising resource allocation are the sole preserve of the National Legislative Assembly and not the established “joint” National Legislature.

If a bicameral house is to be retained, which may be appropriate, it may be necessary that the permanent constitution provides for separate sittings under different speakers. This is the usual practice in systems with a bicameral system. The constitution should clarify the issues that each house would discuss and as such distinguish their respective powers.

After leaders are elected or nominated through processes provided in the constitution, their powers must be balanced. The need to check and balance the powers of leaders in modern times has culminated in some widely acknowledged principles such as; separation of powers, limitations of the power of the government, decentralization of powers and what some political analysts  call diffusion of powers  

Limitation of Powers

The principle of limitation of powers is central to “constitutionalism.” Constitutionalism is achieved when government institutions and political processes are effectively constrained by constitutional rules. It is often expressed in the form of support for constitutional provisions that achieve the goal of limiting government.

The government should be legally limited in its powers – and its authority depends on it observing those limitations. These limitations are, for example, in the form of individual or group rights vs. government powers such as the rights to free expression, association, equality; and the due process of law. The rules imposing limits upon government power must be entrenched in the constitution and the government must not have the capacity to change those limits as they please. An example of instances where the executive manipulates the constitution, as is the tendency in some African countries, is when the sitting president can alter the terms of presidency.

Separation of Powers

The principle of separation of powers requires that power is distributed to the three arms the government (Legislature, Executive and Judiciary). This principle implies that;

• There should be no overlap in the powers and functions of the different arms of government;
• There should be no overlap of personnel in the different arms of government;

• None of the arms of the government should in any way interfere with the functions and work of the other.

Traditionally the roles of the three arms are as follows;

• The executive’s role is to implement laws and policies, provide services, manage public resources, maintains public order and security and manages relations with other governments.

• The Legislature is composed of elected politicians, whose roles include making laws, representing the interest of their constituents, and checking the excesses of the Executive and the Judiciary.
• The Judiciary is the arm of the government that administrates justice. It interprets and applies the law thus checking the excesses of the Executive and the Legislature. It also carries out legal reforms and reviews.

The interdependence of these three organs of governance can be illustrated by the analogy of the fire place in an African set up which has three stones with a pot on top. The pot symbolizes the nation and the three stones symbolize the three arms of government. The stones need to be balanced to provide support for the pot; this balance symbolizes the balance of powers.

In the Transitional Constitution of South Sudan, the President has the role of supervising constitutional and executive institutions. This may mean that the Office of the President will have an administrative oversight not only over executive institutions and the bureaucracy but all the constitutional institutions, including the Judiciary and the Legislature. What constitutional institutions means is not clear.

Furthermore, the principle of separation of powers requires that only institutions of the Executive (not the Judiciary and the Legislature) are under the direct supervision of the President.

Contrary to the principle of separation of powers, the Transitional Constitution has various provisions in which presidential powers interfere with legislative power. For example, it provides that the president shall “convene, summon, adjourn or prorogue the National Legislature in consultation with the Speaker”. This provision can be subject to misuse. First, “in consultation with the Speaker” does not seem to require a formal agreement of the Speaker. It is not the same as saying “after consultation with.” So, the President may decide if and when the National Legislature meets (or does not meet). This may threaten the independence of the Legislature and the practice of legislative power.

The transitional constitution of South Sudan also has several provisions which may undermine the independence of the Judiciary. For example, The President has powers to appoint all Justices and Judges Courts (Courts of Appeal, High Courts, County Courts), subject only to recommendation of the Judicial Service Commission whose members the President appoints. In best governance practice, appointment of judges and justices are often subjected to the scrutiny of the legislative branch and high court justices have security of tenure. This is because of the significant role of the Judiciary and the fact that it is expected to be independent.  

It may also be necessary to ensure that the functions of the Independent Commissions do not interfere with the principle of separation of powers. This can be done by ensuring that;

• The relationships between these commissions and the relevant ministries are well defined.
• The central powers conferred to commission do not contradict legislative powers 
• The president does not have a predominant position in the appointment process i.e.  the appointments and dismissal  can be subjected to  the scrutiny of the legislature  or committees of the legislature
• The commissions are accountable either to  parliament or committees  of parliament ( at least they should be accountable to a institution)

 

Decentralization

Decentralization means devolving powers from the central government. In South Sudan powers are devolved to the state and local government and the Traditional Authority.

The Transitional Constitution of South Sudan has a strong emphasis on decentralisation.  This is evident in the fact that the Preamble recognizes a decentralised system. However, the national government is dominant over the state governments. The states do not have exclusive powers as is the practice in federal political structures. The powers of the states are mandated by the national government who can withdraw state powers. While the Transitional Constitution expressly states that the states have exclusive powers the schedules of powers gives the central government the right to decide on what powers are given to the states. Coupled with this, the President has the right to remove a governor of a state and can disband the state legislatures, which distorts the exclusive powers of the state.

The states also have no control over their own natural resources. According to the Transitional  Constitution, the “Rights over all subterranean and other natural resources throughout South Sudan, including petroleum and gas resources and solid minerals, shall belong to the National Government”. This means that it does not provide for a specific quarter for the producing state.

 

Adherence to International Law and International Arbitration Processes

By joining the United Nations, South Sudan made a commitment to abide by international law. Its constitution should thus recognise commitments under international law, some of which include the following;

• All states are judicially equal
• Each State enjoys the rights inherent in full sovereignty
• Each State has the duty to respect the personality of other States.
• The territorial integrity and political independence of each State are inviolable.
• Each State has the right freely to choose and develop its political, social, economic and cultural systems;
• Each state has the duty to comply fully (and in good faith) with its international obligations and to live in peace with other states.
• Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

One of the organs of the UN that the constitution must commit to abide by, especially in consideration of the ongoing skirmishes between North and South Sudan is the International Court of Arbitration. This court, whose head quarters are at The Hague, is the judicial body of the UN responsible for settling disputes among nations. It settles disputes through – arbitration and judicial settlements. The international court of arbitration was responsible for arbitrating over the Abyei border. The many contested Sudan / South Sudan boarder regions may have to be decided by the International court of arbitration.

 

Diffusion of Powers

Diffusion of powers is a common practice in many young nations. It requires that power must not be concentrated in any specific sector (community, class gender etc) of the population. It requires that that more and more power be distributed to the population or institutions formed by the population.

a)    Traditional Authority

An excellent provision that encourages diffusion of powers is the institution of Traditional Authority. “The institution, status and role of Traditional Authority, according to customary law are clearly recognized”.  This provision also enhances decentralisation.

While this is an important provision as it accepts the important role that the Traditional Authority has historically played, the Transitional Constitution has failed to clearly distinguish the roles of the Traditional Authority and local government.

 Twenty-five Percent Affirmative Action for Women

The 25% quota for women in legislative and executive organs provided in the Transitional constitution is yet another excellent aspect of diffusion of powers. This is meant to ensure that control of power and authority is not monopolised by men who have a definite advantage over women because of history, customs and general practice. However, to fully implement this provision, women will have to be considered in practically all sectors including commissions and committees of the executive and the legislative and constitutional positions in the civil service, army, police and prisons etc.

 

The Values of the Liberation (Historical Perspectives)

Constitution making processes are often considerate of historical dynamics and indeed the making of the permanent constitution provides an opportunity for the people of South Sudan to ensure that the values for which they fought are enshrined in the constitution.

Some of the values for which Southern Sudanese fought that should be reflected in the constitution include;

• Multiparty democracy as opposed to dictatorship
• Equal opportunity for development for all citizens and regions.
• Freedom and liberty
• Free and independent media
• A secular state that recognizes diversity in culture and religion

In its Preamble, the Transitional Constitution emphasises the values of the liberation struggle and freedom by reflecting on the sacrifices that led to attainment of freedom and remembering the martyrs who lost their lives during the struggle for freedom.

As expressed in the preamble, the Transitional Constitution acknowledges that the liberation resulted in wounds that need to be healed and thus puts forth reconciliation as a value and aspiration of the people of South Sudan. The others values put forth in the preamble are poverty eradication and a decentralized multiparty democratic system of government.  In all these, the preamble emphasises a commitment to nurturing the values and principles of democracy and good governance.

One of the major issues that the Transitional Constitution has left open and which was central to the liberation struggle is identity. Identity is usually expressed in provisions that define citizenship. To have all rights as a South Sudanese citizen one has to be “born to South Sudanese mother or father.” This definition is provided in the Interim Constitution, specifically the section that refers to the right to participate in the referendum. According to this provision, which could also be included in the Permanent Constitution, a Southern Sudanese is: Any person whose either parent or grandparent is or was a member of any of the indigenous communities existing in Southern Sudan before or on January 1, 1956; or whose ancestry can be traced to any one of the ethnic communities of Southern Sudan; or any person who has been permanently residing or whose mother and/or father or any grandparent have been permanently residing in Southern Sudan as of January 1, 1956.

Language and culture are important manifestations of the identity of a people. The liberation struggle in South Sudan was a struggle to defend the identity of South Sudanese. It is in this context that, although Arabic is the most widely used language, it is not recognized as the official language.

Instead the Transitional Constitution stipulates that “all indigenous languages of South Sudan are national languages and shall be respected, developed and promoted”.  It goes ahead and establishes English as “the official working language” and states that that English is “the language of instruction at all levels of education”.

Most of the values of the liberation listed at the beginning of this sub-topic are captured by the Bill of Rights provided in the Transitional Constitution. The Bill of Rights is a commitment on the part of the government to ensure that the value and worth of mankind is respected and promoted.

It provides for freedom from slavery, freedom from torture, right to personal liberty, equality before the law, equality of women, affirmative action for women ( 25% of the positions in legislature and executive must be given to women), extensive rights for children, right to a fair trial, 24 hour detention, right to a counsel for serious offenses, right to practice your religion, right to freedom of expression and the press, right to freedom of assembly and association, right to political participation and voting, right to freedom of movement and residence, right to education, right to public health care, rights of  People with Special needs and the elderly, and right to housing among others.

However, the Bill of Rights has several weaknesses.

Group rights activists argue that the language used in reference to people with disabilities is more of a welfare language than a rights based language and want the term “people with special needs” clearly distinguished from “people with disabilities”.

Right to own property is granted but taken away with the provision that states that it can be taken away if there is “consideration for prompt and fair payment.” Prompt and fair payment is not strong enough. For example if the state acquires your land, there must be not only prompt and fair payment but prompt fair and equitable and compensation.

Although it provides for some basic human rights such as the right to housing it omits other fundamental human rights such as the right to food. Food insecurity is a widespread problem which particularly affects marginalised groups and it may be necessary that the right to food should be incorporated.

The right to found a family is dictated by customary law which in a deeply patriarchal society such as South Sudan impinge upon the rights of women. Furthermore, under customary law it is very difficult for women to gain a divorce which necessitate the inclusion of the right to divorce. It may be necessary that the article on the right to found a family be replaced with a more encompassing article such as the one stipulated in the African Charter on the Rights of Women which  states  “….Equal rights at marriage, during marriage and at its dissolution”. There is also no marriageable age stated in the transitional constitution which leaves young adults, especially the girl child in a vulnerable position. It has been argued that an article clearly stipulating that the marriageable age should be 18 years and above in line with the UN Convention on the rights of the child.

The right of women to inherit from their husband is also weak because it involves them sharing the inheritance with their children and this places them in an unequal position to their husband.

The Transitional constitution is completely silent on gender based violence. It is particularly important that the code of conduct for the armed forces enshrines the army’s obligation to refrain from acts of sexual and gender based violence.

 

“The Will of the People” (A sociological Framework)

In best governance practices, the people delegate power and responsibility to the government to govern on their behalf. Such delegation which is popularly known as “the will of the people” is the last component of our conceptual framework.

The principle of the “Will of the People” is based on the conviction that citizens need to be consulted on how they want the society to be administered. This means that there should be a mechanism to enable various groups to communicate their requests and needs. Such a mechanism should ensure that all citizens have an equal opportunity to engage in the process.

This paper will examine the Transitional Constitution of South Sudan to evaluate whether it promotes “The Will of The People” by asking the following questions;

• Does the Transitional constitution provide space for interaction amongst the various interest groups so that all of them feel responsible and identify with the outcomes of governmental decisions?
• Does the Transitional Constitution provide for mechanisms to resolve violent conflicts within South Sudan?

• How has the Transitional Constitution opened up channels of communication between the government and the citizens?

The Transitional Constitution recognizes the supremacy of the “Will of the People” by acknowledging that matters approved by a referendum shall have authority above any legislation. This means that the object of a referendum is a “law” that can be directly applied or a general principle which would have to be “translated” into a legal provision. However, the Transitional Constitution does not provide for the ratification of the final document by a referendum.

South Sudan owes its independence and its internationally recognized existence as a sovereign state to the people who voted in favor of secession in the historic 2011 referendum. Without the “Will of the People” there would be no independent South Sudan. This raises certain questions;

• Considering that Southern Sudanese created the state of South Sudan through their referendum vote, is it necessary that they ratify its new framework of governance in another referendum?
• What will be the sovereign capacity of the Permanent Constitution of South Sudan?

In the provisions on the road map to the Permanent Constitution, the Transitional Constitution recognises the supremacy of the will of the people. It provides for a Commission that will review the Transitional Constitution by collecting views and suggestions from all the stakeholders. The Commission will conduct a nation-wide public information programme and civic education on constitutional issues and draft a constitution that is to be presented to the President along with a report on the decisions made one year after the creation of the Commission.

This will be followed by a Constitutional Conference. The Constitutional Conference is very considerate of the “Will of the People” because it will include a variety of stakeholders including political parties, civil society organizations, women organizations, youth organizations, faith-based organizations, people with special needs, traditional leaders, war widows, veterans and war wounded business leaders, trade unions, professional associations, the academia and other categories to be determined. However, it is unclear what proportion of delegates will be from each category and how they will be selected.

Even as we ask ourselves how the various sectors of civil society listed above will organize themselves to participate in the conference and how they will nominate their delegates, it is important to note that the total number of the delegates and the proportion of delegates from each stakeholder group are provided for. Who then will determine all these?

The critical issue with regard to the last organ of the constitution making process is that parliament may make radical changes to the document that will have been agreed by the last two pro-people processes, which is a contradiction of the “Will of the People”

It is important to analyze the provisions that guarantee the recognition of the will of the people alongside the significant role played by the president throughout the process of making the Permanent Constitution. For example, the President appoints the members of the Commission (the number of sitting members is his decision); he presents the draft to the Constitutional Conference; he  appoints the delegates to this Conference (he decides how many they are); he is presented with the draft and the explanatory report by the  Constitutional Conference; he tables the draft from the Constitutional Conference before the National Legislature; and he receives the draft the National Legislature will have adopted for signing.

 

CONCLUSION

This paper discussed many aspects of democracy and good governance that should be incorporated in the permanent constitution. It presupposes that democracy, which a constitution should guarantee, provides the strongest theoretical framework for good governance and consequent social economic development;

• It provides people with the right to participate. This means that people have a right to decide what type of development they would like to have in their country, and the best way of achieving it.
• It provides the citizens with the right to distribute and use social power. This means that people as citizens decide who should hold power, for how long and how they should use the power. This enables people to create a positive political environment which is necessary for development.
• It ensures justice (or fairness) and rule of law. Real development can hardly take place in an environment where these factors do not exist.

The relationship between democracy and development has implication on the state. Where the government dominates society, it does not leave adequate room for the citizens to determine their development priorities. The constitution is the only instrument that can guarantee political openness.

 

RECOMMENDATIONS   

Elections, which are the initial steps of democratisation, will be a definite provision of the Permanent Constitution. The civil society and political parties should therefore discuss and place submissions on issues relating to elections. In so doing, it is important to think along what most constitutions define, which include;

• How positions in the constitutional and support structures are filled
• The terms, period and termination of service of constitutional office holder and other senior public officials
• Specified turn-over cycle of constitutional positions
• Methodology for removal prior to completion of term
• Defined supportive legal instruments, e.g. an electoral act

It should also be discussed how the constitution can provide for the conduct of elections under a system of separation of powers.

It is also important to discuss whether the bicameral house should be retained or not and whether or not there should be one or separate sittings. The constitution should certainly clarify the issues that each house would discuss and as well as outline the respective powers of the two houses.

How the government can be legally limited in its powers and how rules imposing limits upon government power can be entrenched so that the government has no room to change those limits as they please is also an important issue of discussion.

It is also necessary to discuss how the constitution can ensure that there is no overlap in the powers and functions among the different arms of government.  This can be discussed alongside the need to ensure that there is no overlap of personnel in the different arms of government and that none of the arms of the government interferes with the functions and work of the other in any way.

It is necessary to discuss whether or not there should be an instrument that enables the collective responsibility of the Council of Ministers to be checked by the Assembly or vetted by the judiciary.

This forum may also discuss whether or not it is necessary to ensure that the functions of the independent commissions do not interfere with the principle of separation of powers.

Other important areas of discussion are;

• Issues on citizenship and nationality
• The official working language ,
• The role of the traditional authority
• The actualization of women’s rights
• How to fully implement the 25% affirmative action quarter for women
• The issues of compensation and
• how the local government should function
• Mechanisms of controlling of conflict of interests, (e.g. nepotism and ethnicity)
• Issues on  financial management
• Domesticating  international law and conventions

 

REFERENCES

 

1. Laws of the Republic of South Sudan: The Transitional Constitution of South Sudan 2011
2. The Interim Constitution of South Sudan
3. Andrew Heywood (2007) Politics, 3^rd edition, Palgrave Foundations
4. Swiss Examination of the Transitional Constitution 
5. Making Informed Decision, A Hand book for Civic Education (CRECO) 2007 
6. Draft Civic Education Trainers Guide On the Constitution and the Constitution making process in South Sudan

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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