Constitutional Transformations: Failure and Opportunity in Post-Independence South Sudan Mark Atem Wek Deng Solicitor of the Supreme Court of Queensland Graduate Diploma in Legal Practice (Queensland University of Technology); Graduate Certificate in Australian Migration Law & Practice (Griffith University); LLB (James Cook University); LLM (The University of Queensland) A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2020 T.C. Beirne School of Law Abstract South Sudan achieved independence in 2011 after roughly 50 years of civil war. Celebrated as a ‘dream come true’, independence was historic, marking the beginning of a new era for the South Sudanese. As might be expected, the new nation was faced immediately with myriad of post- independence challenges. One such challenge was drafting the Transitional Constitution to provide for a temporary governance system while the country prepares to stand on its own feet. Written in haste (and in a non-inclusive manner), the Transitional Constitution sought to concentrate power in the national executive. An all-powerful national executive (in the person of President) was deemed necessary to maintain peace and stability in the country, at least as a transitional measure. However, it has miscarried, resulting, in part, in the intractable political instability in South Sudan. This thesis examines post-independence constitutional development in South Sudan, making particular findings. One of the findings, and, indeed, the thesis’ principal claim, is that there has been constitutional failure in South Sudan. Many factors attest to this. For example, there was a failure of constitutional discourse in 2010 in Southern Sudan (the then semi-autonomous region of Sudan) regarding the proper way to draft the Transitional Constitution – ie an elite-driven or people-driven process. This failure was evidenced in the failed talks between the SPLM, the incumbent party, and opposition parties. The failed talks left the SPLM largely in control of the drafting process, the outcome of which is the law that has failed to serve as a public good. That is, the Transitional Constitution, designed to serve the SPLM’s parochial interest or to secure short- term goals, has failed to provide a basis for democracy, constitutionalism, and the rule of law – the universal liberal ideals to which the South Sudanese aspire. To ensure the country does not end up with another defective governing document, the thesis critiques the existing permanent constitution-making process under the Transitional Constitution, identifying some serious problems. An example of these problems is the President’s central role throughout the process. This bodes ill for a permanent constitution for South Sudan, for it is highly likely that the President, having his own political future (and that of the SPLM) at stake, will control the drafting process yet again. To address these problems, the thesis offers an alternative drafting process − the roadmap to a permanent constitution. The roadmap involves two steps: (1) an elected constitutional assembly to lead the drafting process; and (2) a constitutional referendum as a means by which the South Sudanese could approve or veto a draft permanent constitution. Incidentally, this would be a moment for the populace to check against the inevitable risk of elite capture of the process. Central to the design of a permanent constitution is substantive constitutionalism, meaning checks and balances. A permanent constitution will be effective in constraining the institutions of government, including the unduly powerful President, only if it is founded on an impervious system of checks and balances. Beyond constitution building process, the thesis considers two important issues of governance. The first is the type of political system – a power-sharing arrangement—the country needs to accommodate its two levels of government. Dual federalism offers itself in that respect, federalism being the ideal system of government for some quarters in the country. There are many arguable advantages to dual federalism. One obvious advantage is that it would ensure an effective division of powers between the national government (SPLM) and state governments. This would mean the national government would never have the powers that have allowed it to undermine the state governments’ political autonomy, to the extent the President currently has the power to unilaterally dismiss a (supposedly) democratically elected state governor and appoint a new governor. The second is the challenge to transform the SPLM into a democratic institution. The South Sudanese may craft the best constitution in the world, however if the prevailing military mindset of the SPLM remains unchanged, little can be expected from the constitution in promoting much- needed democractic governance. The SPLM internal reform, the thesis argues, must be undertaken simultaneously with the ongoing efforts to implement peace in South Sudan. Attempting to implement peace without addressing the SPLM internal reform will not meet the ultimate goal of achieving lasting peace and political stability. The SPLM is unlikely to voluntarily resile from its use of force to maintain itself in power and that will likely continue to be a source of political instability for the country if it is not addressed as part of the broader conflict resolution process. Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co-authors for any jointly authored works included in the thesis. Publications included in this thesis Deng, Mark A W, ‘Defining the Nature and Limits of Presidential Powers in the Transitional Constitution of South Sudan: A Politically Contentious Matter for the New Nation’ (2017) 61 (1) Journal of African Law 23−39. (This publication forms part of Chapter 3 of the thesis). Submitted manuscripts included in this thesis No manuscripts submitted for publication. Other publications during candidature Deng, Mark A W, ‘South Sudan v James Dak: A Case of Travesty of Justice’ (2018) Sudd Institute 1−9. Contributions by others to the thesis No contributions by others. Statement of parts of the thesis submitted to qualify for the award of another degree No works submitted towards another degree have been included in this thesis. Research Involving Human or Animal Subjects No animal or human subjects were involved in this research. Acknowledgements I wish to express my utmost and sincere gratitude to my supervisory team, Dr Caitlin Goss and Professor Graeme Orr, to whom I owe immense intellectual debts in completing this thesis. They have provided constructive comments and suggestions to help improve the thesis. On top of that, they have been very exemplary in terms of how to conduct oneself with academic integrity and professionalism. I have no hesitation in saying I was working with the best. I thank Dr Goss for giving me the opportunity to teach in her LLM subject (States in Transition) in 2019 and 2021. I equally thank Professor Orr for the opportunity to work alongside him as his teaching assistant, teaching in his Principles of Public Law class. There are several other people I wish to thank. I wish to thank Professor Nicholas Aroney and Dr Peter Mou Run for the helpful comments they provided on Chapter 6 of the thesis (federalism). I also wish to thank Professor Jonathan Crowe who recommended both Dr Goss and Professor Orr to me as supervisors in 2016, prior to commencing my candidature. Staff members at the T.C. Beirne School of Law have made me feel welcome and I am grateful to them. I particularly wish to thank Thomas Palmer from the Law Library who has been of much assistance to me in terms of helping me to access the study resources I needed. Finally, I wish to acknowledge the support and collegiality of my fellow doctoral candidates, particularly Andrew Curtin, who has always been interested in my work and at times commented on some of my articles, Anne Pickering, Andrew Fell, Helen Gregorczuk, Terefe S. Ghebreyesus, Laurel Fox, and Yvonne Breitwieser-Faria Financial support My research has been rendered easier by the financial support I received from the University of Queensland via an Australian Postgraduate Award. I am forever grateful for this scholarship. I am also grateful for the funding I received from the Law School in 2018. This covered my trip to the University of Pretoria, South Africa, in 2019 where I presented my research at the Institute for International and Comparative Law in Africa.