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.
Keywords SPLM, civil war, constitutional failure, independence, Transitional Constitution, federalism. Australian and New Zealand Standard Research Classifications (ANZSRC)
ANZSRC code: 180108, Constitutional Law, 60% ANZSRC code: 160603, Comparative Government and Politics, 40%
Fields of Research (FoR) Classification
FoR code: 1801 Law 60% FoR code: 1606, Comparative Government and Politics 40%
I dedicate this thesis to you the people of South Sudan, for you deserve a better government and a better country. CONTENTS
Chapter 1 — Introduction ...... 1 Significance of the Project ...... 5 Chapter Structure ...... 7 Research Methodology ...... 8
Chapter 2 — The Birth of South Sudan: a Socio-Political Study ...... 10 1. Two Episodes of Civil War in Sudan ...... 10 1.1 First civil war, 1955−1972 ...... 11 1.1.1 The 1972 Addis Ababa Agreement ...... 13 1.2 Second civil war, 1983−2005 ...... 15 1.3 The turning point in the second civil war: the birth of South Sudan as a nation ...... 19 2. Post-Independence Crisis: the Civil War in South Sudan ...... 22 2.1 Factors responsible for the civil war ...... 22 2.2 Waging peace in South Sudan ...... 29 3. Lessons from History ...... 34
Chapter 3 — Constitutional Development in South Sudan: Failure and Lessons ...... 36 1. Interim Constitution of Southern Sudan, 2005 ...... 37 2. The Transitional Constitution ...... 39 2.1 Politics around the drafting of the Transitional Constitution ...... 39 2.1.1 Notable features of the Transitional Constitution ...... 42 2.2 Deficiencies and Paradoxes in the Transitional Constitution ...... 48 3. Lessons from the Transitional Constitution ...... 50
Chapter 4 — Roadmap to a Permanent Constitution for South Sudan: a Two-Step Process 51 1. Problems in the Existing Permanent Constitution-Making Process ...... 52 2. An Elected Constitutional Assembly ...... 57 2.2 Role and nature of a constitutional assembly ...... 57 2.3 Election of a constitutional assembly ...... 60 2.4 Funding for a constitutional assembly ...... 64 3. The Value of a Constitutional Referendum ...... 66 4. Checks and Balances in a Permanent Constitution of South Sudan ...... 72 4.1 Overview of the doctrine of the separation of powers ...... 72 4.2 Horizontal separation of powers in a permanent constitution for South Sudan ...... 78 4.3 Vertical separation of powers in a permanent constitution for South Sudan ...... 88 5. Conclusion ...... 90
Chapter 5 — The Role of Popular Participation in Constitution-Making: The Case of South Sudan ...... 91 1. Traditional Constitution-making and the Rise of Popular Constitution-Making ...... 94 2. What is Popular Participation? ...... 101 3. Participation by Right ...... 102 3.1 UNCHR’s Decisions on Popular Participation in Constitution-Making: ...... 104 3.1.1 Marshall v Canada ...... 104 3.1.2 General Comment No.25 on article 25 (a) of the ICCPR ...... 106 4. Civic Education: a Prerequisite for Popular Participation in the South Sudanese Constitution-Making .. 107 4.1 Case-Studies on Civic Education ...... 108 4.1.1 South African constitution-making (1996) ...... 108 4.1.2 Kenyan constitution-making process (2005−2010) ...... 110 5. Lessons from the Case-Studies ...... 113
Chapter 6 — Federalism: Securing Greater Regional Autonomy in South Sudan? ...... 117 1. Current Debate in South Sudan around Federalism ...... 119 1.1 Origin of federal debate in South Sudan: a historical account ...... 119 1.2 Competing arguments around federalism:a case of proponents versus opponents...... 122 2. Federalism as a Concept ...... 126 2.1 Sociological theory of federalism ...... 131 2.2 Origin theory of federalism ...... 132 2.3 Two forms of federalism: ethnic federalism and dual federalism ...... 133 3. Conclusion ...... 138
Chapter 7—Transforming the SPLM into a Political Party: a Precondition for Peaceful Democratic Politics in South Sudan ...... 139 1. Analysing the Status Quo: the SPLM and Its Post-Liberation Shortcomings ...... 140 2. Understanding Rebel-to-Party Transformation Process ...... 146 2.1 Two aspects of rebel-to-party transformation: ...... 147 2.1.1 Structural change ...... 147 2.1.2 Attitudinal change ...... 150 2.2 Case-study: ANC’s assumption and retention of state power ...... 151 2.3 Implementing rebel-to-party transformation within the SPLM structures ...... 154 2.3.1 Linking the SPLM transformation to the peacebuilding process ...... 159 3. Conclusion ...... 159
Chapter 8 — Conclusion ...... 160
GLOSSARY
ANC African National Congress ARCSS Agreement on the Resolution of the Conflict in the Republic of South Sudan AU African Union CODESA Convention for Democratic South Africa CoM Council of Ministers CoE Committee of Experts CoS Council of States CPA Comprehensive Peace Agreement DDR Demobilisation, Disarmament, and Reintegration EPRDF Ethiopian People’s Revolutionary Democratic Front Frelimo Front for the Liberation of Mozambique GoNU Government of National Unity ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IDEA International Institute for Democracy and Electoral Assistance IDLO International Development Law Organisation IFES International Foundation for Electoral Systems IFP Inkatha Freedom Party IGAD Inter-Governmental Authority on Development JMEC Joint Monitoring and Evaluation Commission KCRC Kenyan Constitutional Review Commission MPNP Multiparty Negotiating Process NCC National Constitutional Conference NCRC National Constitutional Review Commission NIMD Netherlands Institute for Multiparty Democracy NJSC National Judicial Service Commission NLA National Legislative Assembly NLC National Liberation Council NLMs National Liberation Movements NMC National Movement for Change NPA National Peace Accord NRM National Resistance Movement NSS National Security Service PB Political Bureau Renamo National Resistance for Mozambique R-ARCSS Revitalised Agreement on the Resolution of Conflict in South Sudan R-GoNU Revitalised Government of National Unity SANU Sudan African National Union SCAP Supreme Commander of Allied Powers SP Southern Policy SSIM South Sudan Independence Movement SRSG Southern Regional Self-Government SSLA Southern Sudan Legislative Assembly SSPDF South Sudan People’s Defence Forces SPLM/A Sudan People’s Liberation Movement/Army SPLM-IO Sudan People’s Liberation Movement- In Opposition TNLA Transitional National Legislative Assembly UNCHR United Nations Committee on Human Rights UDHR Universal Declaration of Human Rights UNMiSS United Nations Mission in South Sudan UNOM United Nations Operation in Mozambique ZANU-PF Zimbabwe African National Union- Patriotic Front
Map of South Sudan, showing its 10 states and 3 Administrative Areas
Explanation:
South Sudan (formerly known as Southern Sudan) originally comprised 3 regions−Bahr el Ghazal (north-west-central on the map), Equatoria (south of the map), and Upper Nile (north-east-central on the map). It has ongoing serious political (and economic) issues, one of which is the number of states. It inherited the 10 states (shown on the map) from Sudan at independence. However, in 2015 President Kiir, in what was seen widely as a manifestation of his dictatorial tendencies, created 32 states by dividing up the 10 states. In fact, the 32 states were created at an interval. The President created 28 states first and shortly after that he added 4 more states.
The creation of the 32 states was met with strong resistance from various armed opposition movements in South Sudan, including the Sudan People’s Liberation Movement-In Opposition (SPLM-IO), the largest and most powerful opposition movement in the country. In 2019, for example, Dr Riek (SPLM-IO’s chief) insisted that unless the 32 states were abolished and the previous 10 states reinstituted, he would not participate in the transitional government of national unity proposed under the Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) 2018, to which he is a principal party. The 32 states, the President counter-argued, were a popular demand and could be reversed only through a popular process. (This was quite ironic, given the 32 states were not created through a popular process in the first place). However, the President immediately changed his position (nothing unusual for him), and reinstituted the previous 10 states, saying it was in the interest of peace to do so—peace being the much-needed in this embattled country. But in doing so (reversing the 32 states), he also created two new administrative areas−Ruweng Administrative Area and Pibor Administrative Area—as shown on the map. The country now has 10 states plus 3 administrative areas. Abyei, which was created under the 2005 Comprehensive Peace Agreement (CPA) as a disputed territory between South Sudan and Sudan, is the other administrative area.
A brief analysis about why the President created the two new administrative areas is provided in Chapter 3 of this thesis (Constitutional Development in South Sudan: Failure and Lessons). In his public briefing speech, delivered in February 2020, the President made it clear that the reinstitution of the 10 states did not mean the issue has been finally settled. The issue, he said, has been deferred and will be resolved during the forthcoming permanent constitution-making process. Hopefully, the people of South Sudan will finally determine the number of states they wish to have in the country, possibly through a referendum.
Chapter 1— Introduction
South Sudan achieved independence in 2011 after several decades of civil war. It was one of the most destructive civil wars on the continent. Celebrated as a ‘dream come true’,1 independence was historic, marking the beginning of a new era for the South Sudanese. It did so by putting an end to the decades of oppressive rule by the Arab north, although it is now clear that this sad history is repeating itself in South Sudan.
It is to be noted, however, that despite the Southern Sudanese’ resolve to win independence militarily, independence was achieved ultimately through peaceful means.2 This peaceful means was set out in what might be described as the roadmap to independence—the Comprehensive Peace Agreement (CPA) signed in 2005 between the government of Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A). The SPLM/A was the leading insurgency in Southern Sudan, emerging toward the end of the second half of the 20th century. It had two wings: the SPLM as the political wing, at least theoretically, and the SPLA, which has been renamed South Sudan People’s Defence Forces (SSPDF), as the military wing. The SPLM became the incumbent party in South Sudan upon independence with General Salva Kiir Mayardit as its chairman and inaugural President of South Sudan. In depth discussion of the SPLM/A’s emergence, including the need to set it on course to democracy in this post-liberation period, is provided in Chapters 2 and 7 of the thesis.
The CPA was a product of a concerted-effort by regional bodies and Western countries. The regional bodies comprised the African Union (AU) and Inter-governmental Authority on Development (IGAD). IGAD is a consortium of 8 Eastern African countries.3 The Western countries included Italy, Norway, the United Kingdom (UK), and the United States of America (US), the last three normally referred to as the Troika countries. They largely sponsored the negotiation processes.4 Representatives of international actors, specifically the United Nations (UN), equally participated in the development of the CPA, especially at the drafting phase.5
1 Hilde F. Johnson, South Sudan: the Untold Story from Independence to Civil War (L.B.Tauris & Co. Ltd, 1st ed, 2016) 1. 2 The terms ‘Southern Sudanese’ and ‘South Sudanese’ are used throughout the thesis almost interchangeably. The former refers to the pre-independence period; the latter refers to the post-independence period. 3 These countries include Djibouti, Ethiopia, Eritrea, Kenya, Somalia, South Sudan, Sudan, and Uganda. Sudan is one of the Sahara Desert countries. It is a member of Eastern African countries by association, not by geography. Eastern Africa traditionally comprised two regions: East Africa made up of Kenya, Tanzania, and Uganda, and the Horn of Africa, made up of Djibouti, Eritrea, Ethiopia, and Somalia. 4 Kevin L. Cope, ‘The Intermestic Constitution: Lessons from the World’s Newest Nation’ (2013) 53 (3) Virginia Journal of International Law 667, 699. 5 Ibid. 1
The CPA is not as comprehensive6 as it may sound but it resulted in 3 fundamental changes to the political landscape in Sudan: a) it put an end to the civil war; b) it gave the Southern Sudan semi-autonomy for 6 years qua the interim period7; and c) it gave the Southern Sudanese the right to self-determination (a collective universal human right) to be exercised through a referendum at the end of the interim period.8
The referendum was held on 9 January 2011 in Southern Sudan and in foreign countries where the Southern Sudanese emigres reside. The Southern Sudanese voted overwhelmingly (99%) in favour of independence.9 This was hardly surprising, considering the years of insufferable struggle and the embitterment that had engendered. Indeed, the war costed the Southern Sudanese dearly in blood (and treasure). Approximately two and a half million Southern Sudanese perished during the war.10 (They are remembered in the country as martyrs). The vote for independence was followed by a further 6 months period of preparations and independence was declared officially on 9 July 2011 in Juba, the national capital of South Sudan. The separation was consensual in the sense that the parties honoured their commitments to respect the outcome of the referendum, whichever way the people voted. This could not have been possible had the war not been waged in the first place, however.
The new nation was faced with enormous challenges of governance in the immediate post- referendum period. One such challenge was working out the drafting process for the Transitional Constitution, 201111, which was intended to provide a temporary system of government while the country prepares to stand on its own feet. This issue, that is, the proper way to draft the Transitional Constitution, was one of the fundamental and numerous issues anticipated and discussed in the ‘All Southern Sudan Political Parties’ Conference’ held in Juba in 2010.12 An agreement was reached at this conference between the SPLM and opposition parties. This is called the ‘Communique’.
The Communique stipulated that, ‘[i]n the event…the people of Southern Sudan opt for secession…, the Government of Southern Sudan shall establish a National Constitutional Review Commission (NCRC) to review the Interim Constitution of Southern Sudan, 200513 for adoption by
6 Not comprehensive in the sense that it does not adequately address other critical issues such as the dispute over Abyei between South Sudan and Sudan as mentioned. 7 CPA, Chapter I (The Machakos Protocol) Part A article 1.2. 8 See the CPA Chapter I (Machakos Protocol) Part C. 9 The Carter Center, Final Report: Observing the 2011 Referendum on the Self-Determination of Southern Sudan (2011); Hilde F. Johnson, above n 1, 15. 10 Hilde F. Johnson, 6. 11 The Transitional Constitution of the Republic of South Sudan, 2011, herein the ‘Transitional Constitution’. 12 All Southern Sudan Political Parties’ Conference (13th−17th October 2010), herein the ‘Communique’. The conference was conducted under the theme ‘Southern Sudan United for a free, fair, and transparent referendum’. 13 Herein the Interim Constitution. 2
[the Southern Sudan Legislative Assembly] as a transitional constitution’ of South Sudan.14 Although the Communique was silent on the modalities for establishing the NCRC, the general anticipation was that the government would establish the NCRC in consultation with various stakeholders, among them opposition parties, civil society organisations, and religious institutions. However, the SPLM, presumably for its own political expediency, decided to go it alone and established a slightly different constitutional drafting body. On 21 January 2011 (12 days after the referendum), President Kiir appointed a Technical Committee in lieu of the NCRC, dominated by his party (SPLM) to a lesser degree (ie 11 out of the 20 members appointed were associated with the SPLM in official capacity).15 The Technical Committee was charged with reviewing the Interim Constitution with a view to converting it to a constitution of sovereign South Sudan.16
This departure from the agreed process and domination of the Technical Committee by the SPLM outraged various stakeholders. The opposition parties, in particular, called it a violation of the Communique.17 However, officials from the SPLM strongly defended their position, saying the Technical Committee’s task was only technical, not the generally inclusive constitutional drafting process.18 By technical they meant minor changes to the Interim Constitution, such as deleting provisions that made reference to Sudan and re-casting the government structures in Southern Sudan as the institutions of an independent South Sudan.19 The members of the Technical Committee said their task extended beyond revising the Interim Constitution−it laid out options for the much broader process of drafting a permanent constitution for South Sudan.20
Objections to the domination of the Technical Committee by the SPLM were taken into consideration to some extent. More representatives from opposition parties and other organisations were appointed to the Technical Committee. Fourteen (14) members all told were appointed (11 from opposition parties, 1 from civil society organisations, and 2 from religious institutions).21 Fearing a combined dominance of these organisations in the Technical Committee, however, the
14 The Communique, section C, para 41 (ii). 15 General Salva Kiir Mayardit, President of South Sudan, Presidential Decree No. 002/2011 for the Formation of the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005 (21 January 2011)
SPLM added 17 more members from its own rank.22 This brought the total number of the members of the Technical Committee to 51, 28 of whom were SPLM’s representatives—a slim majority. Again, the opposition parties attempted unsuccessfully to oppose this move. The Technical Committee proceeded quickly with its task, conscious of the fast approaching independence declaration day. It drafted the Transitional Constitution with the assistance of international actors.23 The drafted Transitional Constitution was then adopted by the Southern Sudan Legislative Assembly (SSLA)24 subject to the President’s assent. It received the President’s assent on 9 July 2011 and it was promulgated simultaneously. More analysis of the drafting of the Transitional Constitution is provided in Chapter 3 of the thesis.
Two issues can be noted from the drafting process of the Transitional Constitution. First, there was a failure of constitutional discourse in 2011 between South Sudan’s political actors (SPLM and opposition parties) regarding the proper way to draft the Transitional Constitution. This is in the sense that the SPLM disregarded the Communique and dominated the drafting process. Basically, the agreed process broke down irretrievably. Second, as a result of the failed drafting process, South Sudan adopted a defective constitution. The Transitional Constitution is defective in many ways. For example, it concentrates much of the political power in the President.25 This has rendered it ineffective in providing an environment conducive to democracy, constitutionalism, and the rule of law.
The Transitional Constitution was, of course, intended as a provisional law, meaning a permanent constitution is forthcoming. This raises an important question: how could a permanent constitution be drafted to ensure South Sudan does not end up with another flawed governing law? Put differently, what might be a mutually agreeable way to draft a permanent constitution? This thesis is an attempt to answer this question. Drawing on case-studies on successful constitution- making, particularly from post-conflict societies, the thesis argues that a potentially mutually agreeable way to draft a permanent constitution is a popular process, as opposed to the non- inclusive elite-driven process.
22 General Salva Kiir Mayardit, President of South Sudan, Presidential Decree No. 10/2011 for Appointment of additional members of the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005 (21 February 2011). 23 Kevin Cope reports that the Technical Committee received support from a number of international think-tanks, including Max Planck Institute for Comparative Public Law and International Law, Public International Law and Policy Group (PILPG), National Democratic Institute (NDI), International Development Law Organization (IDLO), and United States Institute of Peace (USIP). See also Report of the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005 (Apr.2011) (thanking USAID, IDLO, NDI, Max Planck Institute, PILPG, USIP, United Nations Development Programme (UNDP), and United Nations Mission in Sudan (UNMIS)). 24 The SSLA has been renamed the National Legislature consisting of two houses−the National Legislative Assembly and Council of States. 25 See, for example, Transitional Constitution art 101 (r) and (s). 4
Popular process, that is, a people-driven process, offers many advantages. First, it should be noted that the South Sudanese political elites cannot be expected to deliver a democratic constitution for the country for many reasons, including institutional self-dealing. There is a need to subject the permanent constitution drafting process to a proper public scrutiny, as such. It is apparent that the SPLM, which is likely to be in power when a permanent constitution is drafted, if ever, is unlikely to entertain a different power structure because of the fear that such a structure could limit its power substantially. Daniel Gruss and Katherina Diehl have emphasised the likelihood of this more forthrightly:
Naturally constitutional processes do not occur in a vacuum but build on (constitutional) history and pre- existing systems. Insofar, a transitional constitution may become a model or even the blueprint for a permanent constitution to some degree. The less incentives to change a pre-existing system the more likely the chances for the pre-existing system to remain intact.26
Second, popular process would accord a permanent constitution popular legitimacy essential to its life as an authoritative and respected public law. Third and finally, popular process would give the South Sudanese the sense of constitutional ownership, possibly creating the sense of collective responsibility to defend the constitution against violations by unprincipled power seekers.
The thesis comprises 3 major components: namely, the significance of the project, chapter structure, and research methodology.
Significance of the Project
How to draft a permanent constitution for conflict-ridden South Sudan is a significant research question for at least four reasons. First, this thesis is the first major project to critically analyse the constitutional crisis in South Sudan, lay out options for drafting a permanent constitution, and offer ideas for improving the governance system in the country generally. In 2017 the author published a journal article in the Journal of African Law, entitled ‘Defining the Nature and Limits of Presidential Powers in the Transitional Constitution of South Sudan: A Politically Contentious Matter for the New Nation’.27 The article analyses the concentration of power in the national executive and its implications for constitutionalism, the rule of law, and democracy. This thesis builds on this modest work. The author is an émigré from South Sudan living in Australia presently. He was born and grew up in Sudan during the (second) civil war, which began in the early 1980s.
26 Daniel Gruss and Katherina Diehl, ‘A New Constitution for South Sudan’ (2010—2011) 16 Yearbook of Islamic Middle Eastern Law 69, 74. 27 Mark A. W. Deng, ‘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. 5
He undertakes this study with a particular interest and familiarity with South Sudanese socio- political history and current constitutional issues facing the country.
Second, constitution-building is a prerequisite for achieving a sustainable peace and long-term political stability for South Sudan. Experiences from post-conflict societies, particularly those within the continent, indicate that peacebuilding and constitution-building go hand in hand.28 A well-designed constitution can provide a foundation for successfully implementing a peace accord, thereby protecting the general principles upon which peace is built. While peace is within reach for South Sudan, it is unlikely to hold in the absence of an effective constitutional system to provide a hospitable environment for peaceful politics.
Third, constitution-building is critical to installing and maintaining democracy in South Sudan. It has been difficult for the country to make a transition to democracy partly because the Transitional Constitution does little to encourage democratic process and partly because of the military mindset of those who run the government. Democracy, of course, cannot be legislated into existence, however the point here is that South Sudan needs a constitution that substantively embodies elements of good governance — constitutionalism, the rule of law, protection of human rights etc. (This third point relates closely to the second point in the sense that for peace to hold in South Sudan, it must rely on accountable democratic political institutions). On this point one is reminded of Charles Fombad’s (a leading African constitutional scholar) observation that political instability will continue to haunt African nations until…‘constitutions that entrench certain crucial institutions, principles, and mechanisms that promote constitutionalism, accountability, democracy, and good governance’ have been adopted.29
Fourth and finally, constitution-building would be a rare opportunity for all South Sudanese to get involved in designing their common future. Every South Sudanese has something at stake in this higher law-making. It is here that decades-long exclusion policies of the Arab north must be accounted for by making sure every South Sudanese, irrespective of their social standing, learned or unlearned, is given an opportunity to be heard in crafting a democratic constitution for South Sudan.
While the thesis is intended specifically to contribute to the debate in South Sudan about building a more effective political system, it may also offer wider contributions. It will hopefully contribute to the literature on constitution-making by providing local and international readership with a clearer understanding of the nature of constitutional issues facing this new country. It will
28 Cheryl Saunders, ‘Constitutional Review in Peace Processes: Securing Ownership’ (2014) (25) Accord 56. 29 Charles Manga Fombad, ‘Constitutional Reforms and Constitutionalism in Africa: Reflections on Some Current Challenges and Future Prospects’ (2011) 59 Buffalo Law Review 1007, 1011. 6 also contribute to the search for better ways to shape modern constitution-making processes in the sense that it suggests particular ways to approach constitution-building in South Sudan.
Chapter Structure
The thesis is structured in 8 chapters. Chapter one sets the scene by providing a general background to the thesis, significance of the project, chapter structure, and research methodology. Chapters two and three are largely descriptive. Chapter two places the study in its context by exploring the socio- political history from which South Sudan emerged. Chapter three discusses the transitional constitution-making processes in South Sudan. This, too, is history but a different one. The two documents discussed here are the Interim Constitution, 2005 and the Transitional Constitution, 2011 with more focus on the latter. These two documents form the foundation for the study, for they are relevant considerations in designing a new constitutional order for South Sudan. Clearly, there are lessons to be drawn from the Transitional Constitution for the permanent constitution drafting process.
The rest of the chapters are relatively prescriptive and are where the crux of the thesis lies. Chapters four and five overlap in some respects, both being about popular constitution-making. Chapter four critically analyses the permanent constitution-making process provided in the Transitional Constitution, identifying gravely concerning issues. One such issue is the President’s involvement in all the four stages to drafting a permanent constitution. This is obviously a consequence of an ill-thought-out process. To address this problem, the chapter proposes a new process, which, for want of a better term, is referred to as the roadmap to a permanent constitution. The roadmap involves two steps: an elected constitutional assembly to lead the drafting process and a constitutional referendum as a final step to the process. This chapter also gives some thoughts to substantive constitutionalism — checks and balances in a permanent constitution.
Chapter five argues for popular involvement in the process. There are many advantages to popular involvement in constitution-making. For example, it could serve as a check against the risk of institutional self-dealing. Importantly, popular participation in constitution-making is a collective legal right of people, sourced in international law. It is an aspect of the general right to self- determination guaranteed under the International Bills of Right.30 Chapter six is on federalism, which is a preferred political arrangement for some quarters in the country. It is a controversial subject, however. It has divided the South Sudanese political elites into two camps – proponents and opponents. To give this issue the attention it deserves, given its significance and relevance, the
30 For example, the Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966), and International Covenant on Economic, Social and Cultural Rights (1966). 7 chapter does 3 things. First, it places the issue in its context by tracing the history of federalism in South Sudan (traced to Sudan). Second, it analyses the merits of the opposing arguments. Third, it reflects on the form of federalism that might provide an effective balance of power between South Sudan’s two levels of government. Two forms of federalism−ethnic federalism and dual federalism−are considered in that respect, with the latter strongly recommended.
Chapter seven discusses the institutional reforms needed to be undertaken together with the constitution-building process, one of which is the demilitarisation of the SPLM. That is, to transform the SPLM into a civilian government. Only then can the SPLM be in a position to uphold and implement a permanent constitution. This is, of course, a giant task requiring utmost commitment (political will) and resources. However, it is critical to attaining peace and fostering democratic governance in South Sudan. Finally, Chapter 8 brings the discussion to a close by providing findings and recommendations. Addressing the important issues raised in these chapters requires an explanation of a research methodology.
Research Methodology
The research methodology has to be explained in terms of the different components of the thesis. These are socio-political history and transitional constitution-building/institutional transformation. The discussion on the first component is predominantly descriptive, focusing on the historical and contemporary events in South Sudan (pre-independence and post-independence political developments). The relevant information is drawn mainly from secondary sources − books, journal articles etc.
For the second component (transitional constitution-building), the applicable methodology is applied research, for the concern here is solving a practical problem facing South Sudan − practical in the sense of constructing a new political order and creating democratic institutions to maintain the system effectively. Different authors have defined applied research in practically identical terms. Anne Brodsky and Elena Welsh, for example, have defined applied research as ‘the production of knowledge that is practical and has immediate application to pressing problems of concern to society at large or to specific public or private research clients’.31
Similarly, Terry Hedrick et al have defined applied research as an effort aimed at improving ‘our understanding of a specific problem, with the intent of contributing to the solution of that problem. Applied research also may result in new knowledge, but often on a more limited basis defined by
31 Anne E. Brodsky and Elena A. Welsh, ‘Applied Research’ in Lisa M. Given, The Sage Encyclopedia of Qualitative Research Methods (Sage Publications, Inc., 2008) 2
It is also important to explain the research design, which is about the purpose of the research, research question/s, and theoretical field within which the research is being undertaken. The overarching purpose of the thesis is to generate ideas for resolving the political crisis in South Sudan. As stated previously, the thesis question is how to best undertake the permanent constitution drafting process in South Sudan so as to produce a legitimate democratic constitution. There is a consensus in the literature that popular process provides the optimal opportunity for drafting a democratic constitution for any country. Case-studies, some of which are discussed in Chapters 4 and 5, support this claim. They provide the best way to gain insight into the successful past constitution-making processes. Although references are made to other countries throughout the thesis, South Africa and Kenya provide instructive case-studies for this thesis. Both countries share similar experiences with South Sudan in terms of the racial issues and legacies of oppression they had to address through constitutional reforms. Importantly, their constitutions are held in high regard on the continent and beyond.
The work comes within the broader field of constitution-making but it also has some interdisciplinary elements to it as it extends to the field of institutional transformation. Institutional transformation speaks to the need to institutionalise the SPLM fully, so that it can be in a position to maintain and promote democracy, constitutionalism, and the rule of law in South Sudan. Here, the study draws on the literature on the demilitarisation of liberation movements from within the continent. This is a type of reform-oriented study, yet it is applied research as it is concerned with addressing what is arguably the most difficult problem facing South Sudan.34
The thesis does not undertake literature review in its own right, simply because it does nothing to advance or strengthen the overarching theme of the thesis. However, scholars who have written about the South Sudanese constitutional development and those who have written about constitution-making generally are cited throughout the thesis. Christina Murray (an African constitutional expert), Daniel Gruss and Katharina Diehl, and Kevin Cope are notable scholars on the South Sudanese constitutional development. Other scholars whose works have been consulted
32 Terry E. Hedrick, Leonard Bickman, and Debra J. Rog, Applied Research Design: A Practical Guide (Sage Publication,Inc., 1993) Chapter I
Chapter 2—The Birth of South Sudan: a Socio-Political Study
Chapter one introduced the project and its significance, chapter structure, and research methodology. This chapter discusses South Sudan’s socio-political history. It proceeds in two parts. Part one discusses the two episodes of civil war in Sudan: the first civil war (1955−1972) and the second civil war (1983−2005). The second civil war saw the signing of the CPA in 2005. The CPA served as a turning point in the civil war, culminating in the birth of South Sudan in 2011. Part two discusses the current civil war in South Sudan, paying particular attention to the causes of the war and tentative efforts that have been made to resolve the war. The discussion is largely descriptive and generally brief owing to the limited space available. A study of the complex and protracted conflicts in Sudan and South Sudan would require a great deal of space, possibly a thesis in its own right.
The rationale for this chapter is twofold. First, it is important to situate this study within the socio-political context from which South Sudan emerged. Second, the liberation struggle is a relevant consideration in undertaking constitution-building in South Sudan because there are lessons to be drawn from it in designing an ideal constitutional order for this troubled nation. Of course, the history of oppression in Sudan remains hurtful for the South Sudanese (if less so for the seemingly complacent political elites) but history being doomed to repeat itself. George Hegel’s remark that ‘…we learn from history that we do not learn from history’ remains valid.35
Part One
1. Two Episodes of Civil War in Sudan
The two episodes of civil war in Sudan refer to the two civil wars fought between south and north during the second half of the 20th century. The first civil war began in August 1955, just 5 months before Sudan declared its independence from Britain, and it ended with the signing of a peace
35 As quoted in Tzvi Fleischer, History’s Real Lessons on Iran (22 February 2018) Australian Strategic Policy Institute
1.1 First civil war, 1955−1972
The war between the (native) Sudanese and Arab settlers was always probable if not inevitable. Cultural, linguistic, and religious differences were always at play.38 However, the two major factors responsible for the decades of conflict were the political marginalisation of the Southerners and inequitable wealth sharing. From the moment the Arabs took full control of the country in the 1950s (after Sudan gained independence from Britain), they adopted a long-term policy position that ensured their domination of the country.39 Worse even, the country’s resources were exploited at the expense of the Southerners notwithstanding the fact that much of the wealth was located in Southern Sudan (still is).40 This deepened social and economic inequality in the south. The uneven levels of development between the two countries today speak volumes.
These issues created a highly charged situation, easily triggering a mutiny in 1955 in Torit (a town in the then Southern Sudan and now in South Sudan).41 The mutiny was led by the Equatorial Corps, which was a Southern military unit.42 It quickly spread to other garrisons in the south. The mutineers killed every Arab they could find, including administrators and merchants.43 A huge Sudanese military force was sent to the area to crush the rebellion.44 Some mutineers fled into the
36 The Addis Ababa Agreement on the Problem of South Sudan between the Government of the Democratic Republic of the Sudan and The Southern Sudan Liberation Movement (signed on 27 February 1972); heren the ‘Addis Ababa Agreement’. 37 Peter Adwok Nyaba, The Politics of Liberation in South Sudan: An Insider’s View (Fountain Publishers, 1997) 23. 38 For the history of Arab migration to Sudan, see H. A. MacMichael, ‘The Coming of the Arabs to the Sudan’ (2011) Journal of Central Asian Studies 75, 79; UNESCO, General History of Africa: Africa from the Seventh to the Eleventh Century (James Currey Ltd, 1992) 103. 39 Riek Machar, South Sudan: A History of Political Domination−A Case of Self-Determination (19 November 1995) University of Pennsylvania−African Studies Center
Despite the mutiny, nothing much changed in Sudan in terms of the policy direction of the country. Things became even worse for the Southerners. General Abboud, who was in charge of the Sudanese military, took power by force in 1958, ousting a democratically elected leader, Abdallah Khalil.46 General Abboud’s usurpation of state power not only brought an end to civil rule in Sudan, it also put an end to many things for the Southerners, including their demand for federalism (discussed in Chapter 6). Worse still, Abboud instituted Arabisation and Islamisation policies. He declared that there must be ‘a single language [Arabic] and a single religion [Islam] for a single country’.47 Arabic was introduced in the southern region as the medium of instruction, Christian missionaries were expelled, and forced conversion to Islam was encouraged, especially at schools.48
The enforcement of these policies saw an increase in violence against Southerners. For example, villages were burned down in an effort to get the Southerners to capitulate.49 This only exacerbated the situation. In 1962 a number of prominent southern leaders, most noticeably Fr Saturnino, Aggrey Jaden, Joseph Oduho, and William Deng joined the remnant of the 1955 mutineers in the bush and formed a military movement.50 They named their movement the Sudan African Nationalist Union (SANU) to reflect the then rising African nationalism for which ‘African Nationalist Union’ was a common mantra.51 The SANU guerrillas and those who succeeded them became known colloquially as Anyanya I. Anyanya is a word in the Madi language, meaning ‘snake venom’ or ‘soldier ant’.52 (Madi is one of the ethnic groups in South Sudan). Some scholars argue that the emergence of the Anyanya I marked the beginning of the first civil war in Sudan, not the 1955 mutiny.53 This may be because the Anyanya I had some success in the sense that it brought the belligerent Sudanese government to the negotiating table in 1972.
But even as an opposition to a common enemy, the SANU was not completely united. After a return of civil rule to the country in 1964 (after General Abboud abdicated power), the new
45 Ibid. 46 Ashraf Abdelhay et al, ‘The Sociolinguistics of Nationalism in the Sudan: the Politicisation of Arabic and the Arabicisation of Politics’ (2011) 12 (4) Routledge: Taylor & Francis Group 457, 479. 47 Mahmood Mamdani, Saviours and Survivors: Darfur, Politics, and the War on Terror (New York: Pantheon Books, 2009) 179. 48 Douglas Johnson, above n 43, 30. 49 Ibid, 31. 50 Ibid. 51 Ibid. 52 T. Abdou Maliqalim Simone, In Whose Image? Political Slam and Urban Practices in Sudan (University of Chicago Press, 1994) 47. 53 Douglas Johnson and Oystein Ronaldson and M. W. Daly, A History of South Sudan: from Slavery to Independence (Cambridge University Press, 2016), among others. 12 government invited the southern rebels to the negotiating table.54 This caused a great rift in the SANU ranks. William Deng, who advocated for self-determination within Sudan as one country, went back to Khartoum to attend the talks.55 The rest of the leaders, whose objective was total independence for the Southern Sudan, remained in the bush. These leaders also fell out with each other, causing a further split in the SANU.56 Various rebel movements were formed but only to the detriment of the cause of liberation. The peace talks in Khartoum failed and the stalemate continued. However, in 1969 another dramatic turn of events occurred in Khartoum. General Jaafar Nimeri staged a coup, marking another era of military rule in Sudan.57 To his credit, General Nimeri sought to pursue a different path to unifying the country. He showed more willingness to work with the southern rebels and issued a declaration on self-determination for the southern region in June 1969.58 This paved the way for the 1972 Addis Ababa Agreement.
1.1.1 The 1972 Addis Ababa Agreement
The 1972 Addis Ababa Agreement was negotiated between the government of Sudan and the Southern Sudan Liberation Movement (SSLM), which emerged in the post SANU split. Joseph Lagu was the SSLM’s leader at that time. The negotiations revolved around two central issues: federalism versus decentralisation; the former was the Southerners’ most preferred political arrangement.59 The government rejected federalism outright. It argued that it was not in the interest of the northerners. Left with limited choices, the SSLM leaders settled for something far less than what they demanded. They were offered regional autonomy, dubbed ‘Southern Regional Self- Government’ (SRSG).60 The negotiations concluded and the peace agreement was signed on 27 February 1972. The agreement was highly unpopular for many people in the south and the north for different reasons. For the Southerners, it was a sell-out because independence was their ultimate goal; for the northerners, particularly for those who advocated for Sharia law as the basis for the governance system in Sudan (ie those in the Umma Party, Democratic Union Party, and Muslim Brothers), the agreement constituted two things: a favour to the Southerners and an obstacle to the creation of an Islamic state.61
54 Douglas Johnson, 32. 55 William Deng was killed by the Sudanese military shortly after winning his seat in the 1968 elections. His death has never been properly investigated. 56 Douglas Johnson, 32. 57 Ibid, 34. 58 Ibid, 33. 59 Ibid, 39. 60 See, for example, the preamble to the Addis Ababa Agreement 61 Douglas Johnson, 39 and 55. 13
The Addis Ababa Agreement created a highly centralised system of government. The SRSG was given strictly limited political and economic powers such that the exercise of the SRSG’s powers was subject to the consent of the president of Sudan. The SRSG comprised two branches only−the Regional Assembly as the legislative body and High Executive Council as the executive body headed by a president.62 The Regional Assembly had the power to appoint and remove the president of the High Executive Council subject to the consent of the president of Sudan.63 The Addis Ababa agreement was incorporated into the Permanent Constitution of the Sudan of 1973.64
The first SRSG was formed in 1972 with Abel Alier (the first formally trained judge and first vice-president of Sudan from the south) appointed as the first president of the High Executive Council.65 The establishment of the SRSG saw relative stability returned in the country. The SRSG experienced a severe internal division, however. A fierce rivalry arose between Abel Alier and Joseph Lagu, arguably because they hailed from different ethnic nationalities − Jieeng (Dinka) and Madi, respectively. Alier was seen as unreservedly pro-central government, whereas Lagu was seen as more in line with the views of the Southerners.66 Alier, for example, was accused of having thrown overboard the Southerners’ demand for self-determination, among other things.67
President Nimeri exploited this division. He played both leaders against each other from the 1970s to the early 1980s. For example, he replaced them with one another in office, depending on who was more willing to work with him and implement his policies.68 President Nimeri was seen generally as sympathetic to the Southerners, although he was doing this for his own political expediency. For this reason, coupled with the fact that he imposed himself on the country militarily, his government was not popular in the north (for the Arabs). He survived two attempted coups, quickly realising that his support for the Southerners was a liability.69 Finding a way to ensure his survival politically became his immediate priority. This led him to withdraw his support for the autonomy of Southern Sudan in 198370 by dissolving the SRSG and appointing a caretaker government, as well as imposing Sharia law throughout the country.71
The Southerners did not take this move lightly. On 16 May 1983, Major Kuanyin Bol (known as ‘trigger-happy’) and his Battalion 105 mutinied in Bor (a town in South Sudan that is often the first
62 The Addis Ababa Agreement art 5. 63 The Addis Ababa Agreement art 19. 64 The Permanent Constitution of the Sudan 1973 art 8. 65 Douglas Johnson, 42. 66 Peter Nyaba, above n 37, 22. 67 Ibid, 33. 68 Ibid. 69 Douglas Johnson, 56. 70 Gabriel R Warbug, ‘The Sharia Law in Sudan: Implementation and Repercussions, 1983–1989’ (1990) 44 (4) Middle East Journal 624. 71 Ibid. 14 to fall victim to war).72 This marked the beginning of the second and longest civil war in Sudan. Major Bol’s mutiny was followed by instantaneous mutinies from garrisons across the south.73 By July 1983, the guerrillas had had the sense of what they wanted to pursue, naming their new front the Sudan People’s Liberation Movement/Army (SPLM/A). Dr John Garang (a former colonel in the Sudanese military) emerged as the movement’s leader.
1.2 Second civil war, 1983−2005
The second civil war in Sudan was, roughly speaking, a continuation of the first civil war. The Addis Ababa Agreement failed to address many critical issues. This explains the emergence of the SPLM/A as a movement for reform and social equality in Sudan. Shortly after it was founded, the SPLM/A issued its first manifesto in which it outlined its grievances and vision for the country. It listed the following as some of the causes of the conflict: (1) Khartoum’s interference in the selection of the leadership of the southern region ;(2) the unconstitutional dissolutions of the Regional Assemblies and governments; and (3) the deliberate neglect of the south’s socio-economic development.74
Some of these issues were modified in the SPLM’s second manifesto of 2008, in which the problems of Sudan were defined as twofold:
(1) The failure of the successive ruling regimes in Khartoum to evolve a viable national governance framework and a correct democratic process of nation-building based on Sudan’s multiple diversities; and (2) The failure of these regimes to work out a sound economic program to solve the problems of economic underdevelopment and inequitable development.75
The SPLM/A’s ultimate goal was independence of the south. However, it painted a misleading picture about it: that the SPLM/A was fighting for a democratic and secular Sudan, dubbed as the ‘New Sudan’.76 The New Sudan was to be achieved by ‘creating a political and socio-economic commonality that brings all the Sudanese together as equal citizens in rights and obligations’.77 There were many practical reasons for keeping the SPLM/A’s real intention undisclosed. First, an alliance with various northern Sudanese opposition parties was needed to send a stronger signal to
72 Øystein H. Rolandsen, ‘From Guerrilla Movement to Political Party: The Restructuring of Sudan People’s Liberation Movement in Three Southern States’ (2007) Oslo International Peace Research Institute 1, 7. 73 Douglas Johnson, 61. 74 The Manifesto of Sudan People’s Liberation Movement (Manifesto I) (31 July 1983), 1. 75 The Manifesto of the Sudan People’s Liberation Movement (Manifesto II) (May 2008), 6. 76 Ibid, 14. 77 Ibid. 15 the government of Sudan. A few opposition parties78 came on board, however they did not play much of a military role. It was apparent that these predominantly Arab-led opposition parties would not have joined the SPLM/A had it adopted an overt separatist position. Second, the SPLM/A desperately needed regional support − military strategies, equipment etc−which Ethiopia provided. It could not have received this support had it revealed its separatist agenda. Mengistu Haile Mariam, the then Ethiopian military ruler, was fighting the Eritrean separatist movement and was unlikely to support a separatist movement within the region. Third and finally, it was also likely that the African Union (Organisation of African Unity as it was then known) would not want to set a precedent that dismembered of one its member states. In fact, Sudan was influential within the Union at that time.79
It is also arguable that the position of the international community on separatist movements may have been a relevant consideration for the SPLM/A. State sovereignty and territorial integrity are preserved under international law.80 For example, where a state opposes a separatist movement within its borders, the international community’s position generally favours the state.81 Even though the SPLM/A did not win the war militarily in the end, this tactic abled it to win the strategic and material support it needed to sustain itself during its 21 years of struggle. However, much like the Anyanya I, the SPLM/A also suffered severe internal divisions.
The first issue to face the SPLM/A was dealing with the remnants of the Anyanya I. When the Addis Ababa Agreement was concluded, a group of people completely opposed to it (those whose aim was independence for the south) remained in the bush throughout the 1970s, operating mostly in Ethiopia. Also, the Sudanese military did not integrate all the Anyanya I guerrillas during the implementation of the Addis Ababa Agreement.82 This incomplete integration process left some unemployed Anyanya I guerrillas disgruntled, joining the remnants of the Anyanya I in the bush.83 Together, these bush guerrillas became known as Anyanya II. They did not have much military force to achieve their separation objective; however, they were powerful enough to put the Sudanese government on high alert.84
The Anyanya II guerrillas worked in coordination with the SPLM/A to mastermind the second civil war. Some would-be leaders of the SPLM/A, such as Major Bol, were reported to have visited
78 For example, an alliance known as National Democratic Alliance was formed between the SPLM and northern opposition parties in the 1990s. 79 Douglas Johnson, 62. 80 Charter of the United Nations, opened for signature 26 June 1945, 557 UNTS 143 (entered into force 24 October 1945) article 2 (4). 81 James R. Crawford, The Creation of States in International Law (Oxford University Press, 2nd ed, 2007) 388. 82Douglas Johnson, 59. 83 Ibid. 84 Ibid, 59. 16 the Anyanya II leaders prior to the mutiny in 1983.85 However, the SPLM/A and Anyanya II guerrillas experienced major difficulties in merging as one movement. Two issues had to be settled. The first issue was seniority in the military rank. Some of the Anyanya II commanders were senior to Dr Garang (SPLM/A’s leader) when they were in the Sudanese military and wanted their new movement to be arranged according to the seniority in rank.86 They also wanted the Anyanya II to be reconstituted with two separate wings − military and political. In doing so, they proposed Samuel Gai Tut (Anyanya II’s senior commander) as the leader of the military and his deputy, Akwot Atem, as the leader of the political wing.87 Dr Garang, despite being the well-educated, was given the position of deputy commander.88 This arrangement was unacceptable to the SPLM/A commanders.
The second issue was the objective of the movement. Anyanya II’s principal objective was separation (independence). However, the SPLM/A, as mentioned, did not want to adopt an overt separatist position. These opposed positions caused a split between the SPLM/A and Anyanya II.89 Eventually, they confronted each other militarily.90 With the help of the Ethiopian government, the SPLM/A defeated the Anyanya II commanders.91
The most severe internal division to hit the SPLM/A occurred in 1991. This was a product of many issues, the most serious of which was the need to transform and institutionalise the SPLM/A. There were competing ideological positions within the movement, it seemed. For example, Dr Garang adopted an authoritarian (if autocratic) style of leadership, something he most likely emulated from Mengistu Haile Mariam who was his mentor.92 He was accused of having centralised power contrary to the movement’s principal objective of democratic reform.93 Dr Peter Adwok Nyaba attests that Dr Garang controlled both wings of the movement−the SPLA and SPLM.94
85 Ibid, 62. 86 Ibid, 65. 87 Ibid. 88 Ibid, 65. Dr Garang was a Jieeng (Dinka). He was among the first few educated South Sudanese. He had a doctorate from Iowa State University. He was killed in a mysterious air crash in 2005 shortly after signing the CPA. Salva Kiir Mayardit, the current President of South Sudan, succeeded him. 89 Ibid. 90 Ibid, 65−66. 91 Ibid. There is a long story regarding the disintegration of the Anyanya II guerrillas after being defeated. Mawut A. Mach Guarak and Robert O. Collins have provided detailed discussions of this matter: Mawut A. Mach Guarak, Integration and Fragmentation of the Sudan: An African Renaissance (AuthorHouse, 1st ed, 2011) 280−281; Robert O. Collins, A History of Modern Sudan (Cambridge University Press, 1st ed, 2008) 143−145. 92 Peter Nyaba, 84. 93 Ibid, 88. 94 Ibid, 44−45. 17
In contrast, Dr Lam Akol Ajawin and Dr Riek Machar Teny (Alternate Commanders of the movement) were pro-democracy, at least as far as their rhetoric went. Both leaders agitated for democratic reform within the SPLM/A. Dr Garang was adamant, however.95 In frustration they seriously began to look for a way to replace Dr Garang. In the infamous 1991 coup led by Dr Riek, this culminated in the formation of the ‘Nasir Declaration of 28 August 1991 on the Self- Determination of Southern Sudan’.96 The coup, however, was poorly planned, poorly executed, and it failed.
There are theories regarding what really motivated Dr Riek and Dr Lam to take this extreme action. Some argue that the issue had more to do with a clash of personalities than competing ideologies. In the account of Dr Nyaba, who was a party to the coup (a decision he painfully regrets in his 1997 book), there was a serious rift between Dr Garang and Dr Akol and Dr Riek.97 Foreign hands were also perceived to be behind the coup. For example, a number of NGOs that accused the SPLM/A of human rights violations and child-soldier were believed to have supported the coup.98 However, the same human rights violations are also labelled against Dr Riek. In the aftermath of the coup, for example, forces under his command killed hundreds of thousands of innocent civilians (mostly women and children), most of whom were from Bor section of the Jieeng from which Dr Garang hailed.99
After the dust had settled, Dr Garang appealed to Dr Riek and Dr Lam for reconciliation and to unite the movement, but they refused to reconcile with Dr Garang and formed their own movement, known as the SPLM-United.100 Even so, they, too, fell out with one another. Dr Riek left the SPLM-United and formed his own movement−the South Sudan Independence Movement (SSIM). Both the SPLM-United and the SSIM were tribal-based movements and had no significant military power to achieve their objectives, whatever were their objectives. Both Dr Riek and Dr Akol ended up joining the common enemy in Khartoum. In 1997 Dr Riek signed an agreement with the Sudanese government that allowed him to serve as an assistant to the President of Sudan and as President of the Southern States Coordinating Council.101 These were positions in the name only; he had no power to do anything tangible. He finally reconciled with Dr Garang in 2002 and was invited to partake in the CPA talks.
95 Ibid, 92. 96 Ibid, 91. 97 Ibid, 82. 98 Ibid, 95. 99 Mading Ngor, ‘Bor Massacre in the Name of Democracy’ (2007)
1.3 The turning point in the second civil war: the birth of South Sudan as a nation
The CPA is a lengthy document that resulted out of protracted and multiple-party negotiations. It is not the aim here to study it comprehensively. Rather, the two issues of focus are how it came about and the solution it offered to one of Africa’s most complicated and protracted conflicts.
The CPA was a product of a convergence of many factors, including war-weariness. However, it was the US (Bush Jr administration) that gave it a final push. While the Bush administration’s support for the Southern Sudanese’ right to self-determination was highly welcome, it did not come without surprise. Successive US governments had sided with the Sudanese governments in fighting the southern rebel movements. The Reagan and Bush Sr administrations, in particular, were reported to have supplied arms to President Nimeri throughout the 1980s.102 This was an open secret for Sudanese officials. For example, in 1983 Umar al-Tayyib, (Vice-President of Sudan) warned a group of southern politicians that ‘Khartoum had built an ‘air bridge’ from America to Sudan for the supply of arms, and the first place such arms would be used would be in the South’.103 This was not an idle threat. Sudan did receive arms from the US and Arab countries, creating an extreme power imbalance in the civil war. The Americans were, of course, serving their own interests in arming the Sudanese government. The aim was to make Sudan a ‘counterweight’ to the Soviet Union’s then rising influence in Africa, particularly in the Horn of Africa.104 It was also intended to offset Muammar Qaddafi’s (late Libyan military ruler) aggressions towards Egypt, the US’s closest ally in North Africa.105
What precipitated the sudden change in US foreign policy on Sudan? Two factors are said to have influenced this change, tipping the balance in favour of the Southern Sudanese. The first was ‘the US war on terror’.106 In the 1990s the Clinton administration listed Sudan as a terrorist sponsoring country and this led to a deeply strained diplomatic relations between the two countries.107 Part of the reason for labelling Sudan a terrorist sponsoring country was that it housed Osama bin Laden in the early 1990s.108 Things escalated between the two countries in 1998 when terrorists attacked the US embassies in Kenyan and Tanzania. This prompted President Clinton to order ‘cruise-missile strikes’ against a Khartoum based pharmaceutical company ‘suspected of
102 Douglas Johnson, 57. 103 Ibid, 58. 104 Ibid. 105 Ibid. 106Asteris Huliaris, ‘Evangelists, Oil Companies, and Terrorists: The Bush Administration’s Policy towards Sudan’ (2006) 50 (4) Orbis, 710. 107 Ibid. 108 Ibid. 19 producing precursors for chemical weapons’.109 The Clinton administration then adopted an isolation policy on Sudan in an attempt to restrict its support for terrorists.110
The second, and perhaps the most influencing, factor was the ‘evangelical’ community (mainly Protestants) in the US.111 When George W. Bush was campaigning for president in 2000, the evangelical community pledged to support him on the condition that he would bring an end to the conflict in Sudan if he won the elections.112 Three issues compelled the American evangelical community to come on board: (1) modern slavery in Sudan; (2) persecution of Christian minorities; and (2) aerial bombings of civilians in rural Southern Sudan, which intensified in the early 2000s.113
President Bush won his (controversial) election in 2000, and the evangelical community petitioned him immediately after taking office to fulfil his promise.114 Influential people in the Bush administration, including the former Secretary of State, Colin Powell, threw their weight behind the campaign, giving it the momentum it needed. Powell told the Congress that ‘there is perhaps no greater tragedy on the face of the earth today than the tragedy that is unfolding in the Sudan…The only way to deal with that tragedy is to end the conflict’.115
President Bush finally came on board. In August 2001 he appointed John Danforth, (an Episcopalian Priest and a former US Senator) as US special envoy to lead the peace process in Sudan.116 There seemed to have been a general sympathy for the plight of the Southern Sudanese in the US, particularly from the national legislature. The Congress passed the Sudan Peace Act 2002 to give President Bush necessary powers to apply more pressure to the Sudanese conflicting parties to negotiate a peace.117 Danforth presented his report on Sudan to President Bush in 2002, in which he recommended a number of ‘confidence-building measures’ for the conflicting parties, all of which were complied with by the warring parties.118 President Bush then imposed three conditions on the Sudanese government, which if met, would allow the resumption of diplomatic relations: (1) the attainment of peace for the country; (2) humanitarian access throughout the country; and (3) total cooperation with US counterterrorism effort.119
109 Ibid 110 Ibid. 111 The evangelical groups that led the campaign were, among others, the Christian Solidarity International, Union of American Hebrew Congregations, and National Black Leadership Committee. 112 Raymond L. Brown, ‘American Foreign Policy Toward the Sudan: From Isolation to Engagement’ (2003) National Defense University 1, 24. 113 Asteris Huliaris, above n 106, 713. 114 Ibid, 714. 115 Ibid, 714−715. 116 Ibid. 117 Sudan Peace Act, 50 USC 1701 (2002) section 6. 118 Asteris Huliaris, 715. 119 Ibid 921−722. 20
The Sudanese government complied wholly with these conditions. Negotiations between the Sudanese government and SPLM/A began in 2002 with the support of other third parties. Various protocols addressing fundamental issues, such as ‘Power Sharing’120 and ‘Wealth Sharing’,121 were signed between 2002 and 2005. These protocols, put together, formed the CPA. The CPA was a major breakthrough in the decades-long civil war. It changed the power dynamic in Sudan, to a degree. As noted in the introduction to this thesis, some of the CPA’s fundamental achievements include the following, at least from the South Sudanese perspective: (1) it ended the atrocious civil war between the south and north, although tensions remain high between the two countries in the post-conflict period; (2) it established Southern Sudan as a semi-autonomous region for 6 years (known as the interim period); and (3) it recognised the Southern Sudanese right to self- determination, which was to be exercised at the end of the interim period through a referendum.122 The Southern Sudanese were to choose either separation or unity, whichever they preferred. The CPA actually conditioned the parties to make unity the most ‘attractive option’.123 The Sudanese political elites in Khartoum did little to make this a possibility for the Southern Sudanese, however.
The referendum was held on 9 January 2011 in Southern Sudan and in almost every country where Southern Sudanese are residing as immigrants. Ninety nine percent (98.8%) of the southern Sudanese voted for separation.124 An additional 6 months period of preparations was observed and the country was formally declared independent on 9 July 2011. President Kiir, who was elected resoundingly in 2010, was sworn in as the first President of South Sudan. Independence was a historic event witnessed by a number of foreign dignitaries, among them the former UN Secretary- General, Ban Ki-moon. Five days after the declaration of independence, the UN General Assembly passed a resolution to admit South Sudan as its 193rd Member State.125 The President of the Assembly, Joseph Deiss, had this to say:
Today we are firmly entrenching South Sudan in the community of nations in the same way as other Member States with the same rights and responsibilities. The universality of the United Nations and the values that are enshrined in its Charter are thereby enhanced.126
South Sudan was born a landlocked country, geographically located in east Africa. It borders Sudan to the north, Ethiopia to the east, Kenya and Uganda to the south, and the Democratic
120 CPA, Naivasha Protocol. 121 CPA, Naivasha Protocol. 122 CPA, Machakos Protocol Chapter 1, Part B, art 2.5. 123 CPA, Machakos Protocol Chapter 1, Part A, art 1.5.5. 124 Hilde F. Johnson, South Sudan, the Untold Story: From Independence to Civil War (L.B.Tauris & Co, 1st ed, 2016) 15. 125 United Nations Admission of the Republic of South Sudan to membership in the United Nations, GA Res 65/308, UN GAOR, 65th sess, 108th plen mtg, UN Doc A/RES 61/308 (14 July 2011). 126 UN News, UN welcomes South Sudan as 193rd Member State (14 July 2011)
Republic of the Congo and the Central African Republic to the west. It is home to the Nile River. It has an estimated population of over 12 million people. The country is rich in natural resources, ranging from petroleum (the major resource) to gold. With the advantage of attaining independence in this age of technology, coupled with its rich natural resources, South Sudan was widely expected to make a smooth and speedy transition to an economically viable state. In his inauguration speech, President Kiir assured the South Sudanese and the wider world that he is determined to build a strong and prosperous nation, calling out those he referred to as ‘detractors’:
[O]our detractors have already written us off, even before the proclamation of our independence. They say we will slip into civil war as soon as our flag is hoisted. They justify that by arguing that we are incapable of resolving our problems through dialogue. They charge that we are quick to revert to violence. They claim that our concept of democracy and freedom is faulty. It is incumbent upon us to prove them all wrong.127
Sadly, the so-called ‘detractors’, presumably the Arab north, have been proven right. Two and a half years into independence the country degenerated into its own vicious civil war. Basically, it is history repeating itself in South Sudan, although this time the war has little to do with the Arabs. How could this possibly happen in less than three years after the South Sudanese celebrate the momentous event in their history? An analysis of the civil war might provide an answer to this question.
Part Two
2. Post-Independence Crisis: the Civil War in South Sudan
That South Sudan, in only its third year of existence as an independent country, could be subject to international justice for mass atrocities perpetrated by its own leadership against its own people was something that none of the liberators, or international observers, could ever have expected.128
The author of that observation, Hilde F. Johnson, is a former Special Representative of the UN Secretary-General and Head of the United Nations Mission in South Sudan (UNMiSS) (2011−2014). She is not alone in her observation. The manner in which the civil war occurred in South Sudan − quickly, so brutally − has left many people to question the humanity of South Sudan’s political leaders. As is generally the case with any war, however, there are factors responsible for the brutal civil war in South Sudan.
2.1 Factors responsible for the civil war
127 President Salva Kiir Mayardit, ‘Independence Speech’ (delivered at Freedom Square, Juba, South Sudan, 9 July 2011). 128 Hilde Johnson, 220. 22
There are at least three inter-related factors that appear to be responsible for the civil war in South Sudan. First, it seems that the SPLM did not heal completely from its 1991 split. Indeed, it seems that the split continues to be used against Dr Riek by the SPLM leadership as a tactic to thwart Dr Riek’s undying ambition for leadership. President Kiir’s reference to the 1991 event in his speech in 2013 after Dr Riek publicly declared his intention to vie for president shows that the matter has not been forgiven. The speech states, in part:
I must warn that this behavior is tantamount to indiscipline which will take us back to the days of the 1991 split. We all know where the split took us from that time. This could jeopardize the unity and the independence of our country and we must guard against such things, my dear comrades. I am not prepared to let this happen again.129
That speech, 22 years after the event, was highly inflammatory and may have contributed to the way the situation unfolded within the SPLM (between President Kiir and Dr Riek) in December 2013. An old adage goes you reap what you sow. Dr Riek might need to accept full responsibility for the 1991 massacre and perhaps resile from politics. He did offer an apology for the massacre to the Jieeng Bor in 2012, however the apology was not well received let alone accepted.130 The Jieeng Bor’s leaders say the apology was not given in the right way as it was given informally.131 The right way to give the apology, in their eyes, would be for Dr Riek to go to the land of Bor personally and give the apology before the survivors of the massacre, not through a letter or media.132 Whether this is something Dr Riek might consider, it remains unclear, however.
Second, there is an apparent enmity between President Kiir and Dr Riek. It is not clear when exactly this developed and how it developed. It is safe to assume, however, that it might have developed during the liberation years. This was clearly evidenced in 2002 when Salva Kiir, then deputy leader of the SPLM/A, strongly opposed Dr Riek’s return to the movement in any official capacity.133 Dr Riek wanted Salva Kiir’s position as a condition for accepting reunification with the SPLM/A, although he did not state that overtly.134 The deadlock was broken when James Wani Igga, the then third ranking official in the SPLM/A, relinquished his position for Dr Riek.135 This history of tension continues to impact the working relationship between President Kiir and Dr Riek.
129 As quoted in Hilde Johnson, 177, and Mabut Albino Majok, The Hurdles of Mediating with Humanitarian Lens: An Exploration of the Inter-Governmental Authority on Development’s Failed South Sudan 2015 Peace Agreement (LLM Thesis, Dalhouse University, 2019) 38. 130 Hilde Johnson, 15−152; Sudan Tribune, South Sudan VP Confirms Apology for Bor Massacre (3 April 2012)
Third and finally, there is some consensus that a leading cause of the civil war in South Sudan was the development of the enmity between these two personalities into a full scale political power struggle. Hilde Johnson has documented how the race for power unfolded in South Sudan between President Kiir and Dr Riek. She provides what might be described as a timeline for the development of the events leading ultimately to the outbreak of the civil war. She calls these events the precursors for the 2013 conflict.136 The first event occurred in 2008 when the SPLM held its first Convention after becoming the government of Southern Sudan. The Convention’s principal business was to elect leaders of various structures of the party and to prepare for Sudan’s 2010 general elections by developing policy positions on fundamental national issues.137
Filling the party structures meant several positions, including the top position, were up for contest. Dr Riek declared his candidacy against President Kiir.138 It seemed, however, that even though the aim of the Convention was to establish democratic structures for the SPLM, Dr Riek was somehow declared a political persona non grata, at least as far as contesting the leadership was concerned. Hilde Johnson reports that a major crisis gripped the SPLM and was only averted when Abel Alier and Joseph Lagu (prominent Anyanya I veterans) intervened.139 They counselled that voting on all the proposed agendas be postponed until the independence question had been resolved. There seemed to have been little opposition to that, if any.
The second event occurred in 2010. The issue this time was not directly between President Kiir and Dr Riek. Rather, it concerned the election of Angelina Teny, Dr Riek’s first wife, as governor of Unity State from which they both hail. The SPLM at national and state levels supported different candidates for the governorship, namely Taban Deng Ghai and Mrs Teny.140 There were two apparent reasons for the national-level support for Mr Taban: (1) Taban was more loyal to President Kiir, at least at that time. In fact, rumour had it that the President and his advisers wanted to replace Dr Riek with Taban as vice-president. The plan was abandoned due to fear that it could backfire; and (2) there was a general concern (apparently from within Unity State and at the national level) about the ‘Teny family [Dr Riek and his wife]…controlling Unity State’ and efforts were made to prevent that from happening.141 The elections were held in April 2010 and Taban was declared the winner (with apparent support of the SPLM). Dr Riek and his wife rejected the result and claimed
136 Ibid, 155. 137 Heather Hwalek, Sudan: SPLM’s Convention Marks Milestone (3 June 2008) US Department of State (Archive)
The final and most severe event occurred in early 2012. This arose in the context of revising the Constitution of the Sudan People’s Liberation Movement SPLM, 2008 (the SPLM Constitution). A number of contentious issues arose, some of which were already sown in the existing SPLM Constitution. These include: (1) how the chairman should be elected−whether by a secret ballot or a show of hands; (2) whether the chairman should be permitted to nominate members for appointment to the Political Bureau (the party executive body); or (3) whether the National Liberation Council (a body that supervises and oversees the implementation of the party’s policies and programs) should have the power to elect the members of the Political Bureau and the deputy chairman of the party, instead of being appointed by the chairman.
Dr Riek and his close associates within the SPLM were in favour of reducing the powers of the chairman. They argued that the party should have the power to elect members to various party structures instead of being appointed by the chairman. This, they argued, would promote democracy within the party. President Kiir wanted to retain his powers under the SPLM Constitution, however. The proposed changes ended up in disagreement. Some time passed without much done. In early 2013, a committee was formed to resolve the tension between President Kiir and Dr Riek. It met with each leader privately and then finally brought them together in a meeting. Hilde Johnson recounts that the two leaders traded some ‘harsh words’ against each other during the meeting that lasted for 7 hours.144 Dr Riek took the meeting as an opportunity to confront the President on numerous issues. He presented what Johnson has described as ‘encyclopedic ‘points’ against the President: namely, inaction against corruption; tribalism−the President’s tendency to give preference to his own community; lack of reform of the security sector; the economy; foreign relations—and the loss of support for South Sudan internationally; and lack of vision and direction for the SPLM’.145
The meeting was unsuccessful−no agreement was reached. The President’s political future was now uncertain and he was looking for ways to shore up his support and to maintain his grip on power. He revived an old SPLA ‘High Command’ body and entrusted it with decision making
142 European Union Election Observation Mission, Sudan Final Report (2010) 43
For better or worse, these developments emboldened Dr Riek, who became openly confrontational. He went public on 4 July 2013, giving an interview to the UK Guardian. He stated:
Even in your own country, Margaret Thatcher had to leave after leading the Conservative party for a very long time. Tony Blair also had to leave after winning three consecutive elections and give way to the next generation. To avoid authoritarianism and dictatorship, it is better to change. Our time is limited now. I have been serving under Salva Kiir. I did my best serving under him. I think it is time for a change now.151
The President was not helping the situation either. He made his next dramatic move on 23 July 2013, dismissing his entire cabinet.152 A total of 28 ministers were sacked at once, although a few were later re-appointed to different positions in the government.153 The re-appointed ministers were those that had no association with Dr Riek or were not Garang Boys. (Garang Boys are those who continue to hold on to Dr Garang’s vision within the SPLM and comprise some of the well- educated members of the SPLM.154 President Kiir is opposed to this group, presumably because he
146 Ibid, 163. 147 Ibid. 148 General Salva Kiir Mayardit, President of South Sudan, Republican Decree No.49 for the Relieve of the Vice President of South Sudan, 2013. See also the Transitional Constitution art 104 (2) under which the President has power to remove Vice President from office. 149 Hilde Johnson, 164. 150 Ibid. 151 Simon Tisdal, Riek Machar, the Former Rebel Fighter Ready for a New Battle (5 July 2013) The Guardian
Feeling humiliated and enraged, the now jobless ministers joined forces with Dr Riek.159 This exacerbated the situation. The standoff would continue until mid-December 2013 when the situation reached its tipping point. Hilde Johnson has identified two ultimate triggers for the impasse turning into civil war. The first was a highly provocative press conference Dr Riek and his associates held together in around 6 December 2013.160 Part of their press statement reads:
The deep-seated divisions within the SPLM leadership, exacerbated by dictatorial tendencies of the SPLM Chairman, and the dysfunctional SPLM structures from national to local levels are likely to create instability in the party and in the country. For these reasons, and out of our sincere concern about the future of our people, we the SPLM members of the Political Bureau and the Leadership of the party are obliged to inform the public about the true state of affairs in the SPLM and how General Salva Kiir is driving our beloved Republic of South Sudan into chaos and disorder.161
The second trigger was a call for a meeting of the a party’s Political Bureau (PB)−itself a formal precursor for the annual convention of its National Liberation Council (NLC).162 It was rumoured that Dr Riek and his associates had planned to vote the President out of the leadership during the meeting of the PB.163 These disgruntled members formed a majority in the PB. The President somehow discovered the plan and refused to summon the PB.164 In lieu of that, he called a general meeting of the NLC−taking place on the 14th−15th of December 2013.165 It is not clear what the agenda of this meeting was. Dr Riek attended the first day; the rest of his associates
155 Sudan Tribune, Minutes of the Historical SPLM Meeting in Rumbek 2004 (10 March 2008)
However, there are competing suppositions about what these events really were. The government accused Dr Riek of a coup attempt but Dr Riek denied this accusation and asserted that the government concocted the coup as a ploy to eliminate him.170 The matter has been reduced to mere recrimination and the truth of the matter remains unknown for the outsiders, whether South Sudan’s citizens or members of the international community. An African Union Commission of Inquiry into the Civil War in South Sudan was set up in 2014 to independently investigate the causes of the civil war. Whilst it doubted the coup theory, it could unearth no conclusive evidence:
With respect to what triggered the violence on 15th December 2013, the Commission established that there are two competing narratives. The first holds that the violence was sparked by disagreement within the Presidential Guard, following a claim that there was an order to disarm sections of the Presidential Guard. The second narrative, which emerged on December 16th, 2013, was that the violence was sparked by an aborted coup. From all the information available to the Commission, the evidence does not point to a coup. We were led to conclude that the initial fighting within the Presidential Guard arose out of disagreement and confusion over the alleged order to disarm Nuer members.171
Other factors place doubt on Dr Riek’s claim that he is innocent and that the war was imposed on him. For example, Dr Riek left Juba secretly at the moment the first skirmishes occurred.172 His departure was followed by rebellions by top military Generals of Nuer background, with Peter Gatdet as the first to declare allegiance with Dr Riek.173 The government sources ask ‘why was Dr Riek on the run? What did he know’? Dr Riek’s answer might be that he feared for his life. This would not be far-fetched. On 16 December 2013, the government forces, of largely Jieeng composition, went through all the areas inhabited by the Nuer in Juba and killed every Nuer they
166 Hilde Johnson, 176. 167 General Salva Kiir Mayardit, President of South Sudan, ‘Press Conference, (Media Release, South Sudan,16 December 2013)
Dr Riek’s forces also killed the Jieeng people in revenge, particularly in areas inhabited predominantly by the Nuer such as Jonglei State and Unity State.177 These targeted killings have led to the war being characterised as tribally motivated. That is, a war between the Jieeng and Nuer, two groups with a long-standing enmity. Indeed, Dr Riek has characterised the killing of the Nuer people in Juba as genocide (whilst hate speeches against the Jieeng were radio-broadcast in Nuer inhabited parts of the country).178 This characterisation may have some basis, however it is not consistent with the realities within the government. There are people of Nuer background who have been serving in senior positions in the government since day one of the war.
This account is not to defend the government’s failure to protect the citizenry, including the Nuer people. Whatever the precipitating causes, the mass killing that followed was utterly unacceptable. Hilde Johnson charges both parties to the conflict with war crimes and crimes against humanity. She writes:
On 8 May we released as scheduled our UNMISS Human Rights Investigation Report covering the period 15 December 2013 to 1 May 2014. This concluded that there were reasonable grounds to believe that war crimes and crimes against humanity had been committed during the conflict, by both government and opposition forces. Further criminal investigations would be necessary to establish the scope of the violations and responsibility of perpetrators.179
It remains to be seen whether these criminal investigations would ever be carried out and the perpetrators brought to justice. With war always comes an urgency to wage peace, something that has proved extremely difficult for the warring parties and those who are facilitating the peace talks.
2.2 Waging peace in South Sudan
It is a sad truth that waging peace is always much harder than waging war.180
Indeed, peace is much harder to achieve. However, as Albert Camus has rightly put it, it is the only ‘battle worth waging’.181 A few days after the outbreak of the civil war in South Sudan, regional
174 Hilde Johnson, 190. 175 Richard Downie, A Coup in South Sudan? (17 December 2013) Center for Strategic & International Studies
A few issues had to be resolved before any peace negotiations could commence. These included getting the warring parties to come to the negotiating table (through their representatives), the venue for the negotiations, and who was to serve as the chief mediator.183 The first and second issues were somewhat challenging. The warring parties gave preconditions, which if not met, would preclude their involvement in negotiations. Ethiopia and Kenya were competing to host the negotiations.184 With mounting pressure from the international community, however, the warring parties, in the end, declared their willingness to negotiate. Ethiopia was designated the venue and the Ethiopian ambassador to South Sudan, Seyoum Mesfin, was appointed the chief mediator.185 Formal negotiations began on 2 January 2014 in Addis Ababa.
The first agreement signed was a weak ceasefire.186 Subsequent multiple peace agreements, including declarations on the reunification of the SPLM, were signed but have all suffered the same fate.187 That is, none of them has been able to hold in terms of ending the war definitively. The warring parties have demonstrated incapacity to respect their commitments, each being almost on its own honour. The only exception is the Agreement on the Resolution of the Conflict in the
181 As cited in Martijn Lak, ‘A Political History of the World: Three Thousand Years of War and Peace by Jonathan Holslag’ (2019) 30 (4) Journal of World History
Republic of South Sudan, 2015 (ARCSS). The government was initially unwilling to sign the ARCSS. It had many reservations, one of which was the agreement largely favoured the SPLM- IO.188 After coming under concerted pressure from the UN Security Council and Obama administration, however, President Kiir signed the ARCSS.189 The ARCSS has been the major instrument so far that addresses the conflict relatively comprehensively. Some of its substantive parts include the establishment of a Transitional Government of National Unity (GoNU) with Salva Kiir as President and Dr Riek as the First Vice President,190 a permanent ceasefire,191 transitional justice,192 and Joint Monitoring and Evaluation Commission (JMEC) to monitor and oversee the implementation of the ARCSS.193
The ARCSS suffered its first major setback on 8 July 2016 immediately after the GoNU was formed. As with the causes of the civil war, what happened on that day remains controversial. But here is how the story was reported. A fighting erupted between the presidential guards and Dr Riek’s bodyguards in the State House during a meeting of the presidency (in the meeting were President Kiir, Dr Riek, and other senior government officials).194 It lasted for roughly an hour. This caused panics in the civil population within the vicinity. In the end, Dr Riek’s forces were overwhelmed by the government massive security forces.195 The President had specifically called the meeting to discuss and resolve the clashes that occurred a day earlier at a checkpoint in Juba between the government forces and Dr Riek’s forces.196 It is unclear what exactly caused these clashes. It is safe to assume, however, that they may have been a result of a misunderstanding between the two militaries during a patrol.
Both sides have traded accusations about what happened on 8 July 2016. Dr Riek claimed it was an attempt on his life by the government, while the government labelled the incident as yet another coup attempt by Dr Riek.197 Again, there are a few factors that do not support Dr Riek’s claim. For example, after Dr Riek’s forces were annihilated, Dr Riek was left at the mercy of President Kiir in
188 Clayton Hazvinei, Vhumbunu, ‘Conflict Resurgence and the Agreement on the Resolution of the Conflict in the Republic of South Sudan: A Hurried and Imposed Peace Pact?’ (2016) African Center for the Constructive Resolution of Disputes
Following the July incident, Dr Riek left Juba and later announced that the ARCSS had collapsed.198 The government pleaded unsuccessfully to him to return to Juba so that the implementation of the ARCSS could continue.199 In frustration, President Kiir appointed Taban Deng Ghai (Dr Riek’s then chief negotiator) as the First Vice President.200 This was done in violation of the ARCSS because Dr Riek was the designated First Vice President under the ARCSS, not Taban. The ARCSS makes it clear that should the post of the First Vice President fall vacant for any reason during the transitional period, the SPLM-IO, not President Kiir, should nominate a new First Vice President.201 It was rumoured that Taban and Dr Riek fell out with each other following the conclusion of the ARCSS. The SPLM-IO has actually been divided. There is the SPLM-IO in government (an oxymoron) led by Taban and the SPLM-IO in the bush led by Dr Riek.
The ARCSS was revitalised in 2018 and renamed the Revitalised Agreement on the Resolution of the in South Sudan (R-ARCSS). Nothing much has changed in terms of its provisions. The Revitalised Transitional Government of National Unity (R-GoNU) was mandated to be formed 8 months after signing the R-ARCSS (ie from 17 September 2018).202 This deadline was not met, however. Dr Riek had a list of preconditions that had to be met before he set foot in Juba. These included security arrangements and number of states the country should have (his idea being 21 states).203 After a delay of over one year, the R-GoNU was scheduled to be formed on 12 November 2019.204 Yet again, the parties could not meet this deadline and an extension of 100 days was deemed necessary.205
The R-GoNU was formed finally on 22 February 2020.206 It is a big government, consisting of both the executive and legislature. The executive comprise President Kiir himself and his 5 Vice-
198 Ibid. 199 Jok P. Mayom, President Kiir Appoints Taban Deng As New First Vice President (25 July 2016) Gurtong Trust
Presidents (Dr Riek, Taban Deng Ghai, James Wani Igga, Rebeca Nyandeeng de Mabior, and Hussein Abdelbagi Akol), and 32 Ministers.207 With the exception of James Wani Igga, who is part of the government, each of the four Vice-Presidents represents a different opposition movement.208 The legislature has 550 members (supposed parliamentarians).209 The R-GoNU has a mandate for 3 years (36 months).210 At the end of the 3 years, elections shall be held to elect a new government of South Sudan.211 While the formation of the R-GoNU is a highly welcome development, it remains in doubt whether this will ultimately put an end to the civil war in South Sudan. This is principally because of the bitter enmity that has developed between the two principals, President Kiir and Dr Riek. One would be forgiven for saying this, but these two men are unlikely to ever have a successful working relationship.
What could possibly bring an end to the civil war in South Sudan? Hilde Johnson proposes in her book that true reconciliation provides a possibility for the country to heal and for durable peace to be achieved.212 Reconciliation, healing, and transitional justice have also been proposed in the R- ARCSS as possible ways to address the injustices that have been committed.213 While all are admirable aims, they also carry some risks with them. In particular, the idea of transitional justice, which is about holding perpetrators accountable, is likely to bear no fruits, or worse, it could derail peace. If, for example, President Kiir and Dr Riek were indicted and convicted, say for war crimes or crimes against humanity, how likely are they to submit to a court of law (a hybrid court proposed in the R-ARCSS) and accept a conviction? The short answer is that they are highly unlikely to do that. In addition, their gun wielding supporters would not entertain such justice. They would likely deem it a dishonouring of their leaders. In terms of reconciliation, the government of South Sudan has already initiated its own reconciliation program in 2018−the National Dialogue.214 Something positive is yet to come of this process. Perhaps time is needed before it could yield positive results.
It is the position of this thesis that as long as President Kiir and Dr Riek remain on the political scene in South Sudan, no true reconciliation can be achieved in the country. This is because they
207 Radio Tamazuj, President Kiir Appoints 5 Vice-Presidents (23 February 2020)
This is not the first time something like this has been suggested. Hilde Johnson reports that Tedros Adhanom, Ethiopia’s former foreign minister, suggested a similar idea in 2013. He proposed that President Kiir be re-elected as chairman of the SPLM and run for president in 2015, and if elected, serve for five years but step down two years before his tenure ended.215 The party would then elect a new leader. President Kiir accepted the idea unconditionally; Dr Riek said he would think about it and get back to Tedros with his decision.216 He never did. A year later after the crisis had occurred, Tedros asked Dr Riek why he did not agree to take the deal. Dr Riek said he did not believe President Kiir would honour the deal.217
This reveals Dr Riek’s impatience in pursuing his leadership ambition. He could have been elected as chairman of the SPLM and president of South Sudan had he taken the deal, saving the country the crisis. Even if the President did not honour the deal, Dr Riek would have been justified in his pursuit for power. Dr Riek is held in high regard within the Nuer community. In fact, there is a popular belief about him: that he is the Ngundeeng prophesied South Sudan’s ruler to be. Ngundeeng Buong was a controversial 19th century prophet of the Nuer people.218 He is believed to have foretold all the problems facing South Sudan today. He prophesied that South Sudan would be ruled by a Nuer born leader. This would-be ruler would be born left-handed, gap-toothed, and highly educated person. It is an open secret in South Sudan that Dr Riek identifies himself to be that leader, for he meets the criteria − he is left-handed, gap-toothed, and a PhD holder. This may in part explain why he is relentless in pursuing his leadership dream.
Regardless of such folklore, it is in the interest of peace and stability for Dr Riek to leave the political scene in South Sudan. The national interest trumps personal ambition for power.
3. Lessons from History
215 Hilde Johnson, 167. 216 Ibid. 217 Ibid. 218 Douglas H. Johnson, The Fate of Ngundeng’s Dang (29 August 2014) Rift Valley Institute
There are a few lessons to draw from the events from history discussed in this chapter. Drawing lessons from these events is critical to the future the South Sudanese must build−a peaceful, just, free, and democratic South Sudan.
The first is the devolution of power provided in the 1972 agreement. That arrangement did not deliver in terms of guaranteeing southern regional autonomy and promoting lasting peace in Sudan overall. Instead, President Nimeri ended up assuming all the power in Sudan. This rendered the SRSG effectively powerless. The point here is that devolution of power carries with it many risks, especially in countries where democracy is yet to take hold. One risk is the tendency for the system to degenerate into a heavily centralised power. This is precisely what has happened under the Transitional Constitution of South Sudan. There is need to do away with the current devolution of power in the future political arrangement for South Sudan, as such. Federalism, which is discussed in chapter 6, provides the best guarantee for an effective balance of power between South Sudan’s two competing levels of government.
The second event is President Nimeri’s tactical decision to play the southern leaders against each other. This had at least two notable consequences: (1) it left the southern leaders to be perceived merely as job seekers − ie serving their own interests; and (2) it deeply divided the Southerners along ethnic lines. As will be discussed in the next chapter, President Kiir has powers under the Transitional Constitution that allow him to do the same to the state governors. For example, he dismisses state governors at will. It is important to guard against such undemocratic, and, indeed, oppressive, politics in South Sudan. A simple way to do this is to implement democracy in the country. This would encourage peaceful politics and empower the citizenry, thereby minimising rebellion in the country and killings associated with it.
The third event is President Nimeri’s unilateral dissolution of the SRSG. This had many consequences, one of which was the resumption of a full scale civil war between south and north. Yet, the South Sudanese political leaders do not seem to have learned anything from this autocratic act from history in running their own political affairs. For example, in 2015 President Kiir abolished the 10 states that South Sudan inherited from Sudan and created 32 states unilaterally. As will be explained in the next chapter, the 32 states have also been abolished as per Dr Riek’s demand. However, the move was perceived widely as a clear manifestation of the President’s dictatorial leadership. The point here is that President Kiir (and hence the SPLM) needs to be cognisant of the past political injustices and adopt an inclusive, consultative, and transparent decision-making process in governing the country. This is a possible, and perhaps the only, way to avoid the resurgence of these divisive issues.
35
The fourth event is the failure to fully reintegrate the Anyanya 1 combatants into the Sudanese military. It is possible that the Sudanese government did not have the necessary resources to demobilise and reintegrate all the Anyanya 1 combatants into its military, given Sudan was only a nascent state at that time. However, the failure to integrate the Anyanya 1 combatants had severe consequences for the country, including the resumption of the war. This situation can be paralleled with the SPLM’s failed demilitarisation discussed in Chapter 7 of this thesis. The importance of demobilising and reintegrating combatants into the South Sudanese military need not be exaggerated. It is critical to ensuring peace in the country, as well as creating a lean military.
The fifth and final event is the CPA. The CPA ought to remain as a reference point in the South Sudanese political development. It teaches us that lasting peace is possible only through understanding and compromise. It did not matter how much the Southern Sudanese and the Arab north attempted to annihilate each other; it did not matter how long the war was fought. What mattered in the end was the realisation of the peaceful resolution of the civil war. This is a powerful lesson from history for the people of South Sudan, and, especially the political leaders, insofar as resolving the ongoing civil war in the country is concerned.
In sum, it is apparent that the events summarised, particularly the first four, continue to influence the South Sudanese politics in the post-separation period. They are a reminder that effective mechanisms need to be erected to guard against them. One mechanism is a permanent constitution that not only regulates power effectively, but also balances/divides power between the different levels of government. This raises an important question: how could a permanent constitution be drafted? This thesis maintains that a popular process offers the optimal chance of getting the drafting of a permanent constitution right. Chapters 4 and 5 of this thesis are dedicated to this vital task of permanent constitution-making. Serving as a prelude, Chapter 3 discusses the history of constitutional development in South Sudan and the issues inherent in the Transitional Constitution.
Chapter 3 — Constitutional Development in South Sudan: Failure and Lessons
The period from 2005 to 2011 has a special significance for the South Sudanese. It marked the beginning of formal constitution-making in their political history, but one that started off on the wrong foot. Two documents−the Interim Constitution and the Transitional Constitution−were enacted during this period. This chapter discusses these documents and their drafting processes. The Interim Constitution is no longer in operation as it has been rendered redundant by the separation. However, it remains relevant to the ongoing constitutional debate in South Sudan, as well as 36 scholarly analysis. This is because it laid the foundation for the transitional governance system in South Sudan. In other words, South Sudan’s governance system provided in the Transitional Constitution is derived from the Interim Constitution, although, as noted in the introduction to this thesis, the Transitional Constitution departed from the Interim Constitution in some radical ways.
Much of the analysis in this chapter focuses on the Transitional Constitution, particularly the politics around its drafting process and deficiencies it contains. These deficiencies include the overlap between the National Legislative Assembly (NLA) and President’s functions, apparent competing positions of the President and Council of Ministers, and the President’s executive power to remove an elected state governor from office on a highly contentious ground. Some of these issues may not be of much concern since the Transitional Constitution is only a provisional law. It is important, however, to bring them to light so that they might be guarded against when drafting a permanent constitution for South Sudan.
1. Interim Constitution of Southern Sudan, 2005
The signing of the CPA in 2005 marked the beginning of a new era in Sudan. The CPA, as discussed in the preceding chapters, brought an end to the civil war and mandated the establishment of new institutions of government in Sudan, including the establishment of Southern Sudan as a semi-autonomous region.219 The establishment of Southern Sudan as a partially self-governing entity saw the enactment of the Interim Constitution to govern Southern Sudan during the interim period.220 Like the rest of the transitional arrangements in Sudan, the Interim Constitution had its origin in the CPA. The CPA mandated the Interim Constitution to be drafted ‘by an inclusive Southern Sudan Constitutional Drafting Committee [and] adopted by the Transitional Assembly of Southern Sudan by a two-thirds (2/3) majority of all members. It shall conform to the Interim Constitution [of Sudan]’.221
The two constitutions−the Interim Constitution (of Southern Sudan) and Interim Constitution of Sudan−were required for two principal reasons. First, south and north were practically two separate and independent countries during the interim period. The Interim Constitution of Sudan was, however, the paramount law to which all laws in the country, including Southern Sudan, had to conform.222 Second, the two regions had differing sources of legislation−a result of the differences in traditions and religious beliefs. The sources of legislation in Sudan are the ‘Islamic Sharia and
219 CPA (Machakos Protocol) Part A (Agreed Principles) art 1.2; CPA (Naivasha Protocol on Power Sharing) Chapter II Part III art 3.1. 220 CPA ( Machakos Protocol) Part B (Transitional Process) art 2.2 221 CPA Chapter II, Part III, article 3.2. 222 See, for example, Interim National Constitution of the Republic of Sudan, 2005 article 3. 37 consensus of the people’,223 whereas the sources of legislation in Southern Sudan were the ‘customs and traditions… [and] popular consensus of the people of Southern Sudan’ (and this is still the case in South Sudan under the Transitional Constitution).224 This meant that all the Islamic Sharia-based laws applied only in the north and secular laws applied in the south during the interim period. One of the many reasons the CPA was successful in ending the conflict in Sudan was that it acknowledged the cultural, geographical, and religious differences between south and north and provided a way to maintain these effectively, reflecting the common phrase of ‘unity without uniformity and diversity without fragmentation’, although fragmentation was the ultimate outcome of the CPA.
The Interim Constitution went through various stages before it was finalised and signed into law. The first draft was prepared by a 15-member technical committee with the assistance of international actors.225 This draft was then submitted to the Southern Sudan Constitutional Drafting Committee (Drafting Committee) in fulfilment of the CPA requirements. The Drafting Committee comprised 40 members, representing different political parties in Southern Sudan.226 (A number of issues, pertaining to the structure and powers of local government, the role of traditional authority, appointment of judges, women and children’s rights, and criteria for citizenship sparked debate in the Drafting Committee. It is unclear, however, how these issues were resolved).227 The Drafting Committee is said to have made only minor structural changes to the first draft and submitted it to the Southern Sudan Legislative Assembly (SSLA) for approval.228 The SSLA approved the Interim Constitution on 31 October 2005, subject to a certificate of conformity from the Ministry of Justice of the Government of National Unity of Sudan.229 The Ministry of Justice certified it on 14 November 2005230 and President Kiir signed it into law on 5 December 2005.231
The Interim Constitution set up a presidential system of government and provided for both horizontal and vertical separation of powers. For example, the powers of the three institutions of government (the legislature, executive, and judiciary) were provided in different parts and chapters of the Interim Constitution (Parts 6 and 7). The vertical separation of powers was implied from the
223 Interim National Constitution of Sudan, 2005 article 5 (1). 224 Interim Constitution article 5. 225 USAID, USAID's Assistance to the Development of the First Ever Constitution for Southern Sudan (24 September 2006) Sub-Saharan Africa
If the outcome of the referendum on self-determination favours secession, this Constitution shall remain in force as the Constitution of a sovereign and independent Southern Sudan, and the parts, chapters, articles, sub-articles and schedules of this Constitution that provide for national institutions, representation, rights and obligations shall be deemed to have been duly repealed.
Secession was the outcome of the referendum, however this article was not complied with wholly when the Interim Constitution was converted to the Transitional Constitution. There are some really problematic provisions in the Transitional Constitution that did not come from the Interim Constitution (problematic from the perspective of democracy and the rule of law). Examples of these are the presidential powers to remove a supposedly popularly elected state governor and appoint a new governor in the occurrence of an undefined constitutional crisis.235 These contested issues along with the drafting history of the Transitional Constitution warrant attention.
2. The Transitional Constitution
The Transitional Constitution is a highly unpopular law. This is largely because it has failed to meet the high expectations of the young nation, to provide for an inclusive and participatory governance system and ensure equitable distribution of resources. This failure started with the non-inclusive manner in which it was drafted.
2.1 Politics around the drafting of the Transitional Constitution
As a result of the popular vote for independence in 2011, President Kiir unilaterally appointed the Technical Committee to review the Interim Constitution for the purposes of turning it into a constitution of South Sudan as a sovereign nation.236 As mentioned in the introduction to this thesis, the unilateral appointment of the Technical Committee raised two serious issues. First, the
232 Interim Constitution art 168 (1−4). 233 Interim Constitution article 102. 234 P.D Miamingi, The Transitional Constitution of the Republic of South Sudan (Draft Country Report) University of Pretoria 1, 2. 235 Transitional Constitution art 101 (r) and (s). 236 Presidential Decree No.002/2011 for the formation of the Technical Committee to review the Interim Constitution of Southern Sudan, 2005 (21 January 2011) Government of Southern Sudan. 39 appointment violated the Communique, which provided for a multipartisan approach to designing South Sudan’s transitional governance system. For example, the Communique stipulated that in the event of separation, the Government of Southern Sudan would call a general conference of the political parties to deliberate and adopt a constitutional system for South Sudan.237 In fact, the conference was intended to serve many purposes, one of which was for opposition parties to formally authorise the President to appoint the members of the NCRC. The President would do this after consulting opposition parties. The President, however, reneged on his commitment to the process and established a Technical Committee instead of the NCRC. The opposition parties attempted to oppose this move but the President was resolute in his decision.
The second and most serious issue was the composition of the Technical Committee. The Technical Committee initially comprised 20 members, 11 of whom were members of the SPLM, serving in an official capacity (ministers and presidential advisers).238 This domination of the Technical Committee by the SPLM caused a great uproar in the opposition parties and civil society organisation ranks. The SPLM’s response was far from convincing. It argued that the Technical Committee’s work was only technical and that there would be a broader and inclusive process for drafting South Sudan’s permanent constitution.239
The opposition parties dismissed this argument as nothing but a pretext for controlling the drafting process.240 They prepared their own version of the Transitional Constitution in which they proposed a number of important agendas. These included the ‘creation of a prime minister post, reduction of the number of ministries, future power-sharing formulas and an 18 to 21-month transitional period’.241 Some minority groups joined the protest, arguing that ‘inclusiveness [in the process] should begin on the first [day] of independence’, not deferred to a later time.242 This wrangling went on until a meeting of the heads of political parties was convened in February 2011. Two issues were resolved in that meeting: (a) the parties formally endorsed the Technical Committee but expanded it by adding 14 members (11 from opposition parties, 2 from faith-based groups, and 1 from civil society groups); (b) the draft Transitional Constitutional was to be
237 Southern Sudan Political Parties, All Southern Sudanese Political Parties Conference-Final Communique (13−17 October 2010)
The opposition parties’ claim that the SPLM was controlling the drafting process was not far from the truth. A few days after passing these resolutions, President Kiir appointed 17 more members from his party (SPLM) to the Technical Committee.244 There were now 51 members of the Technical Committee. With 28 of the appointees (11 + 17) as SPLM’s representatives, the SPLM retained its dominance in the Technical Committee. Some have argued that the SPLM intended this as a strategy ‘to balance the opposition presence [in the Technical Committee] and retain the two-thirds majority necessary to approve substantive amendments, as stipulated in committee by-laws’.245 Again, this assertion was not without merit. Reports emerged immediately after the Technical Committee commenced its work, accusing the SPLM of manipulating the drafting process through its representatives.246 The opposition parties protested. They jointly issued a press statement in which they announced their intention to withdraw from the Technical Committee but that made no difference at all.247 The Technical Committee, now a practically homogenous body, pressed on with its work.
The Technical Committee produced the first draft of the Transitional Constitution two months after commencing its work. The draft ought to have been submitted to the South Sudan Leadership Forum for deliberation as per the February 2011 agreement mentioned above. However, this step was skipped, presumably because the SPLM anticipated a strong opposition to the draft at the forum. Instead, the draft was submitted to the Council of Ministers (the highest national executive body) for review.248 The Council of Ministers made minor amendments before tabling it before the SSLA.249 The SSLA discussed the draft document in ‘four different clusters’ and invited written suggestions and comments from civil society organisations, as well as organising a limited number
243 International Crisis Group, above n 240, 11. 244 Presidential Decree No.10/2011 appointing 17 additional SPLM’s representatives to the Technical Committee (21 February 2011) Government of South Sudan. 245 International Crisis, 12. 246 Ibid, 11. 247 South Sudan Political Parties, ‘Withdrawal of South Sudan Political Parties from the Technical Committee for the Review of the Interim Constitution of Southern Sudan 2005 and the Task Forces’ (Media Release, South Sudan News Agency, 8 March 2011)
2.1.1 Notable features of the Transitional Constitution
There are at least five features of the Transitional Constitution that are worth noting. First, the Transitional Constitution is the first national constitution of South Sudan. (And relatedly, it has been described as an ‘intermestic’ constitution, meaning it is a conflation of international templates and domestic aspirations.252 In short, it is partly transnational, which is consistent with the ideational theory (the understanding that ideas are persuasive and appealing).253 Examples of transnational elements are the Bill of Rights provisions which were borrowed from international human rights treaties almost word for word.254 The structural provisions, that is, the executive power provisions that create an unduly powerful President, were designed by the South Sudanese themselves).255
The Transitional Constitution establishes South Sudan as a presidential Republic with three levels of government − national, state, and local.256 The national government exercises power in respect of the people of South Sudan and states; the state governments exercise power within their respective jurisdictions.257 The local governments come under the state governments.258 The national government and state governments are each devolved exclusive powers listed in Schedules
250 As discussed in Gruss and Diehl, the four different clusters were the Executive and Legislature, Economy, Finance and Development; Bill of Rights, and Security and Judiciary. 251 See Transitional Constitution art 1998(1) (a), which states: ‘Upon the Declaration of Independence and statehood of the Republic of South Sudan, on July 9, 2011, the President of the Government of Southern Sudan shall: (a) assent to and sign into law the amended Interim Constitution of Southern Sudan, 2005, after its adoption by the Southern Sudan Legislative Assembly, which shall thereafter be known as the Transitional Constitution of the Republic of South Sudan, 2011’. 252 Kevin Cope, above n 242, 670. The word ‘intermestic’ is a combination of the first four letters in the word international and the last six letters in the word domestic. 253 Ibid, 676. 254 The international human right treaties include International International Covenant on Civil and Political Rights (ICCPR), opened for signature16 December 1966 (entered into 23 March 1979) 999 UNTS 171; International Covenant on Economic, Social, and Cultural Rights (ICESCR), opened for signature 16 December 1966 (entered into force 3 January 1976) 993 UNTS 3; and Universal Declaration of Human Rights (adopted 10 December 1948); all of which the form International Bill of Rights. 255 Kevin Cope, 670. 256 Transitional Constitution art 47 (a−c). 257 Transitional Constitution art 47 (a) and (b). 258 Transitional Constitution art 47 (c). 42
(A) and (B) of the Transitional Constitution. The national government’s powers include maintaining ‘national defence’ and ‘national security’; the state governments have the powers (responsibilities) to run primary and secondary schools and the healthcare system, among others.259 Aside from generating their own revenues, something they have hardly done so far, state governments are to be allocated funds from the National Revenue Fund (much of which is oil money) based on criteria set by the National Fiscal and Financial Allocation and Monitoring Commission.260
Second, the Transitional Constitution might be described as a legal constitution in at least two senses: (1) it gives the Supreme Court of South Sudan (the highest court of the land) the power to enforce constitutional limits on both the legislature and executive. In other words, the Supreme Court reviews the ‘constitutionality of laws’ enacted by Parliament and policies formulated by the executive;261 (2) the Transitional Constitution locks in rights in the form of a Bill of Rights, although these rights carry only nominal significance in light of the ongoing violations of human rights in South Sudan.262
The rationale for legal constitutionalism (the idea that constitutional limits should be enforced by courts) is that courts are independent of the (fused) political branches, at least in well- functioning democracies, and are thus well-placed to act impartially in enforcing constitutional limits.263 Legal constitutionalism is generally contrasted with political constitutionalism which asserts that constitutional limits are purely political and that ways to hold government to account should be found within the political system.264 Regular elections, which are generally constitutionally prescribed, are one way to hold government to account.265 The parliament (legislature) is also said to fulfil this role in the sense that it has power to scrutinise the executive decisions. However, this is a tenuous role because members of the legislative branch sometimes serve in the executive as ministers. This, coupled with partisan politics, can make it difficult for parliament to enforce constitutional limits accordingly.
Political constitutionalists argue that it undermines the democratic process to give unelected people (judges) the power to review the legality of the actions of popularly officials−a challenge to
259 Transitional Constitution Schedule (A) (2) and Schedule (B) (13) and 19). 260 Transitional Constitution arts 178 (1) and (4) and 179 (1) and (2). 261 Transitional Constitution art 126 (2) (d) and (e). 262 Transitional Constitution Part II. 263 Gabrielle Appleby, Alexander Reilly and Laura Greenfell, Australian Public Law (Oxford University Press, 3rd ed, 2018) 16. 264 Ibid, 16−17. 265 Iseult Honohan, ‘Political Constitutionalism’ (2009) 8 (3) Contemporary Political Theory 371−374. 43 the legitimacy of the judiciary as an appointed body.266 These issues suggest that each of these opposing views has its own weaknesses. Legal constitutionalism exists only in theory in South Sudan. The Supreme Court lacks independence to police the actions of the political branches. Issues affecting judicial independence in South Sudan are discussed in the next chapter.
Third, the Transitional Constitution ordains decentralisation as the system of government for South Sudan.267 Some people have called this a semi-federal system because it structurally resembles a federal arrangement.268 Decentralisation never materialised in South Sudan, however. It exists only nominally. The state governments do not operate at arms’ length from the national government in practice notwithstanding their exclusively constitutionally devolved powers. Nearly everything the state governments do politically must be approved by the national government. For example, the appointment of a state cabinet by a state governor and the creation of local government administrations have to be made in consultation with the President.269 In practice, this has meant the President controls or even vetoes these appointments/establishments. This is on top of the President’s powers to appoint and dismiss state governors. All of these are indicative of a highly centralised political system and serve to embolden the federal movement in the country discussed in Chapter 6 of this thesis.
Of relevance to the decentralised system of governance provided in the Transitional Constitution is the issue of the number of states. The Transitional Constitution initially established the territory of South Sudan as comprising 10 states.270 The 10 states were not created by the South Sudanese themselves; they were inherited from Sudan. They were created under the 1998 Sudanese Constitution that re-established Sudan as a federal state.271 The people of Southern Sudan were not consulted in creating the 10 states − not unusual in a country which was hitherto ruled by a dictator.
There is unsettling issue regarding the 10 states as explained previously. In 2015 President Kiir, for what appeared to be purely a political motive, created more states in the country by dividing up the 10 states.272 He created 28 states first and then added 4 more states not long after that.273 This brought the number of states in the country to 32. The decision to create more states was strongly
266 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 1st ed, 2007) 145−175; 176−208. 267 Transitional Constitution art 47. 268 P.D Miamingi, above n 234, 15; Luka Biong Deng Kuol, ‘The Federalism-Decentralisation-Peace Nexus in South Sudan’ in in Luka Biong Deng Kuol and Sarah Logan (eds), The Struggle for South Sudan : Challenges of Security and State Formation (I. B. Tauris & Company Limited, 2018) 97. 269 Transitional Constitution art 165 (2). 270 Transitional Constitution art 162 (1). 271 Constitution of Sudan 1998 art 108. 272 General Salva Kiir Mayardit, President of South Sudan, Establishment Order Number 36/2015 for the Creation New States in South Sudan (herein the ‘Establishment Order’). 273 Stimson Center, The 28 System in South Sudan (9 August 2016)
The decree violated the Transitional Constitution. The Transitional Constitution confers no power on the President to create states. Numerous articles of the Transitional Constitution, articles 36 (1), 166 (6) (a) and (b), for example, were cited as sources of authority for the presidential decree. However, these articles are silent on the creation of states presidentially.277 They are generally about promoting the decentralised governance system in the country and ensuring popular participation in the government. The Parliament (National Legislature) which is supposed to scrutinise executive decisions did not seem to care much about this brazen decision. Worse even, it passed an amendment Act to give the President the power to create more states in the country as he deems necessary, risking itself to be viewed merely as a rubber stamp institution.278 In particular, article 162 (1) of the Transitional Constitution was amended. The original text of article 162 (1) declared South Sudan as having ‘ten states governed on the basis of decentralization’. The inserted text read:-
Article 162 is amended by replacing its sub-article (1) with the following: The President may for the purpose of efficient discharge of functions of the governments, divide the territory of …South Sudan into states and other areas in accordance with procedures prescribed by law or provisions of such law as may be enacted by the concerned House of the Legislature.279
This amendment was simply an attempt to constitutionally validate the presidential orders that created the 32 states, especially the Establishment Order number 36/2015. However, the
274 Sudan Tribune, South Sudan’s President Expands States to 28 as Opposition Accuses him of Deal Violation (15 October 2015)
Establishment Order can never be constitutionally justified because the Amendment Act No:2 applies prospectively, not retrospectively, at least it does not stipulate that expressly.
As mentioned earlier, the 32 states were short-lived. In 2019, Dr Riek, who was among those opposed to the 32 states, gave the government conditions for which he would participate in unity government proposed in the R-ARCSS, if met. One of the conditions called for the 32 states to be abolished.280 The government, in response, issued a stern warning saying Dr Riek was crossing a red-line.281 It argued that the 32 states were popularly demanded in 2015 and could be reversed only with the agreement of the people of South Sudan. However, after coming under pressure from the regional countries and international community, President Kiir gave in. He abolished the 32 states and reinstituted the 10 states.282 Nevertheless, the President created two new administrative areas, namely Ruweng (carved out from the reinstituted Unity State) and Pibor (carved out from the reinstituted Jonglei State).283 The country now comprises 10 states and 3 administrative areas. Abyei, which was created under the CPA, is the third administrative area, itself a disputed territory between South Sudan and Sudan.284
As with any political decision he takes, the President did not explain what necessitated the creation of the two new administrative areas. There are issues that may have influenced his decision, however. For example, the inhabitants of Ruweng are a minority Jieeng group in Unity State, which is almost exclusively a Nuer land. The Ruweng Jieeng have long complained about having been marginalised by the Nuer people. Ruweng is one of the oil-producing areas in South Sudan and this may have also influenced the President to accord it a special status.
In relation to Pibor, a fear of rebellion by David Yau Yau may have influenced the President’s decision. David Yau Yau is a South Sudanese military General and is from the Murle, which is the predominant tribal group in Pibor. He rebelled against the government of South Sudan twice (2010
280 Daniel Akech Thiong, 10, 21, 28, 32, ?:Why South Sudan’s Peace Might Rest on a Number (22 February 2020) African Arguments
Dr Riek initially opposed the creation of the two new administrative areas, although he thanked the President for returning the country to the 10 states.286 However, he was somehow persuaded and accepted the two new administrative areas, paving the way for the formation of unity government in February 2020.287 In his speech about abolishing the 32 states, President Kiir acknowledged that it was ‘one of the painful decisions’ he ever had to make as President. It is clear, however, that the issue is far from settled as the President stated in his speech:
[T]he issue of the number of states will be addressed by the Revitalised Transitional Government of National Unity during the implementation period. We will make sure that the people of South Sudan are accorded an opportunity to exercise their right in determining the number of states…they need in the country. [This can be done as part of the permanent constitution-making process].288
Consulting the people of South Sudan about this issue should have been President Kiir’s first step before creating the 32 states in 2015. It was apparent then, as it is now, that a majority of people would have supported the creation of more states, leaving little room for any opposition to it. At least the President, taken at his word, seems to have learned an important lesson to avoid this impulsive approach to decision-making in the future.
Fourth and finally, it is called the Transitional Constitution because it was intended to govern South Sudan during the transitional period. The transitional period was understood to be a period of four years, which is much longer than the 21 months proposed by opposition parties.289 This understanding stemmed from the fact that both the National Legislature290 and President were
285 Human Security Baseline Assessment for Sudan and South Sudan, David Yau Yau’s Rebellion (4 June 2013)
2.2 Deficiencies and Paradoxes in the Transitional Constitution
There are three apparent paradoxes and deficiencies in the Transitional Constitution. The first relates to the overlap between the NLA’s functions and those of the President. Both have the power to ratify international treaties, for example.293 Conversely, the President ratifies international treaties with the approval of the NLA.294 The rationale for having these competing functions is unclear. Generally speaking, ratification of international treaties is an executive prerogative. This is the case under the US Constitution where the President has the power to ‘make treaties’ subject to the approval by two-thirds of the senators.295 The author suggests that under a permanent constitution for South Sudan, the NLA be given the power to approve international treaties for their incorporation into the domestic law and the executive (President) be given the power to ratify them–to sign them into law.
The second paradox is the apparent competition between the President and Council of Ministers (CoM). The President is supposed to be the highest political executive in the country, being the head of state and Commander-in-Chief of the military. However, the Transitional Constitution establishes the CoM as ‘the highest executive authority in the Republic’, whose ‘decisions…shall prevail over all other executive decisions’ but ‘[w]ithout prejudice to the powers conferred upon the President by this Constitution’.296 The President, of course, is a member of the CoM, which justifies the paramountcy of the CoM’s decisions. What is not clear, however, is whether the CoM’s decisions also prevail over the decisions the President takes individually. This is highly improbable given the President’s supreme position. While there have not been any reported problems with
291 Transitional Constitution arts 66 and 100. 292 Transitional Constitution of the Republic of South Sudan, 2011 (Amendment Act, 2015), extending the terms of the National Legislature and President from 9 July 2015 to 9 July 2018; The Transitional Constitution of the Republic of South Sudan, 2011 (Amendment Act, 2018), extending the terms of the National Legislature and President from 9 July 2018 to 9 July 2021. 293 Transitional Constitution arts 57 (d) and 101 (p). 294 Transitional Constitution article 101 (p). 295 US Constitution art II, section 2 (2). 296 Transitional Constitution art 110 (1) and (2). 48 respect to the implementation of this provision, it is important to avoid these kinds of obvious contradictions in a permanent constitution.
The third and final deficiency, indeed, the most serious deficiency, is the President’s executive power in article 101 (r) and (s) of the Transitional Constitution. The President, it states, shall have power to:-
remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state that threatens national security and territorial integrity; appoint a state care-taker Governor who shall prepare for elections within sixty days in the state where the Governor has been removed or the state legislative assembly so dissolved in accordance with the provisions of this Constitution, the relevant state constitution and the law.
This article was one of the many contentious issues that arose during the drafting of the Transitional Constitution. It divided the drafters into two groups: proponents and opponents.297 The proponents were the SPLM and its representatives in the Technical Committee. They contended that this article was necessary to give the government enough power to maintain peace and stability in the country, but that it would be exercised in ‘conditional circumstances’ only.298 Yet they did not define what those conditional circumstances might be. The opponents, on the other hand, were opposition parties and they argued that because the subject conditions were not defined in the Transitional Constitution, the article could be susceptible to abuse.299 Each side maintained its position and no compromise was reached. As the SPLM was in control of the drafting process, however, it was always going to have its way, hence the inclusion of article 101 (r) and (s) in the Transitional Constitution.
There are three points to note about this article. First, the undefined nature of the crisis renders the law open to different interpretations and abuse. It would have been better to define the crisis. This would have made the implementation of this article much less controversial. Second, the article undermines the ‘Political Objectives’ of the Transitional Constitution under article 36 (1) to promote democracy, decentralisation, constitutionalism and the rule of law. Article 101 (r) and (s) does not promote these liberal ideals or principles of good governance. It promotes autocracy contrary to those ideals. Validating this assertion is the fact that no election has been held for any of the state governors removed from office since 2012. Clearly, this violates article 101 (s) of the Transitional Constitution which mandates elections to be held 60 days after the removal of a state governor.
297 Wathig Kameir, ‘The Political Economy of South Sudan: A Scoping Analytical Study’ (2011) African Development Bank 1, 19. 298 Ibid. 299 Ibid. 49
Finally, article 101 (r) and (s) has not ensured peace and stability for the country as its proponents argued. It has actually become a source of political instability for the country. For example, a former state governor, Joseph Bakosoro, who was removed from office by President Kiir in 2015, has rebelled against the government.300 (Chol Tong Mayai and Taban Deng Ghai were the other disgruntled former state governors who joined the rebellion in the country but have returned to the government in an official capacity as part of the peace deal). Joseph Bakosoro currently leads an armed opposition movement–the National Movement for Change.301 His position is that President Kiir has failed the people of South Sudan by becoming too dictatorial and that peace can prevail in South Sudan only by espousing ‘democratic system of governance… [and] the rule of law’.302 Many people share this sentiment. For example, the 2014 African Union Commission of Inquiry into the Civil War in South Sudan found, inter alia, that the removal of state political executives by the President ‘is one cause of instability’ in the country.303 The Commission recommended measures to help improve the system of government in South Sudan, none of which has been implemented so far. It recommended, in particular:
[T]hat consideration should be given to repealing provisions that empower the President to remove elected governors, to dismiss or suspend legislatures and to summon or prorogue the National Assembly. These changes can be effected through minimal reforms pending the outcome of the constitutional review process.304
3. Lessons from the Transitional Constitution
There are lessons to be drawn from the Transitional Constitution for future constitutional development in South Sudan, especially for the forthcoming permeant constitution. First, there was a failure of constitutional discourse in 2011 in South Sudan about the acceptable way to draft the Transitional Constitution. This failure was a direct result of the SPLM’s departure from the agreed process laid out in the 2010 political parties’ conference. This tactical move enabled the SPLM to dominate the Technical Committee through its representatives and to have the Transitional Constitution tailored to its particular political agenda. It also emboldened the SPLM to ignore popular demand for inclusion in the drafting process. Of course, there was a limited time of 6 months only to consult the public (6 months from 9 January 2011 when the referendum was held in Southern Sudan to 9 July 2011 when independence had to be formally declared). However, the
300 Sudan Tribune, Former W. Equatoria Governor Forms New Political Group (7 January 2017)
Finally, as an authoritarian document, the Transitional Constitution has failed to serve as a basis for democracy, constitutionalism, and the rule of law. These failings should serve as a wakeup call for the South Sudanese to pay a special attention to the forthcoming permanent constitution-making process, to ensure that these issues do not recur. There are, of course, preliminary issues to be worked out before this proposed popular constitution-making could be implemented. For example, who should lead the process (an appointed commission or elected constitutional assembly)? What specific steps should the process take, and in what manner should the public participate? These vital issues of process are the focus of Chapters 4 and 5 of this thesis.
Chapter 4 — Roadmap to a Permanent Constitution for South Sudan: a Two-Step Process
Making a constitution is not a matter of pure engineering design. Whatever the dictates of wisdom and prudence would be, the process of making and the resulting constitution are at the mercy of historical contingencies. Constitution-making is ‘a pre-eminently political act’. ‘It is a decision-making process carried out by political actors, responsible for selecting, enforcing, implementing, and evaluating societal choices; and it is shaped by the socio-political order in which it takes place and, in turn, it strongly influences that order.’ The participants are aware that they are involved in ‘higher law-making’ and this creates special expectations, roles, and rules. Constitution-makers may rise above ordinary attitudes of ‘business as usual’ and are capable of adapting non- parochial, long-perspectives.305
Chapter three has discussed the history of constitutional development in South Sudan and problems inherent in the Transitional Constitution. It serves as a diagnostic study. This chapter shifts focus to the forthcoming permanent constitution-making process in South Sudan. It is where the crux of this thesis lies. It begins by teasing out problems in the existing permanent constitution-making process under the Transitional Constitution. An example of these problems, as will be discussed, is the President’s central role in the drafting process from the start to the end. This offers little hope for the independence of the process, given the history. It is highly probable that the President, having his own political future at stake, will control the process to his advantage.
Taking that into account, the chapter proposes a different process for drafting a permanent constitution for South Sudan, comprising two parts. The first part proposes an elected constitutional
305 Michel Rosenfeld and Andras Sajo, Constitution Making: Process and Substance (The Handbook of Comparative Constitutional Law) (Oxford University Press, 2012) 2. 51 assembly to lead the drafting process. As will be explained, an elected constitutional assembly would serve many important purposes. It is likely to ensure independence for the process, for example. In other words, politicians are less likely to interfere in the process if the process is led by an independent body, not to mention the legitimacy such a body would bring to both the process and its final product. This proposal, of course, raises a few issues of its own. For example, what is the nature and meaning of this proposed constitutional assembly? How could it be elected and funded? These questions are answered in the discussion.
The second part proposes a constitutional referendum. Like an elected constitutional assembly, a constitutional referendum would serve many purposes. It could, for example, serve as a final check on the inevitable risk of elite capture, ensuring the final product is acceptable to the people of South Sudan, at least to a majority of the population. Allowing citizens to vote directly on a national constitution is also consistent with the prevailing democratic practice where the ultimate source of political power is believed to be the will of the people, the constitution being where such will is manifested.
Central to the design of a permanent constitution is substantive constitutionalism, or a system of checks and balances to guard against authoritarian tendencies of the governmental institutions, especially the unlimited President. The focus here is on horizontal and vertical separations of powers. The former is a technical term for the constitutional division of power between the legislature, executive, and judiciary. The latter also carries a technical meaning but it speaks to the division of powers between the national and sub-national governments in a given political arrangement. It is about giving each level of government an exclusive territory within which to exercise its powers.
As noted in the introduction to this thesis, this chapter intertwines with chapter 5, both being about popular constitution-making. The difference is that this chapter is about the proper process to follow in drafting a permanent constitution, whereas chapter 5 is about involving the public in the drafting process.
1. Problems in the Existing Permanent Constitution-Making Process
The Transitional Constitution provides what might be described as a four-step process to drafting a permanent constitution for South Sudan, each of which has its own inherent problems. The first step is the appointment of the NCRC by the President after consultation with various stakeholders, including opposition parties and civil society organisations.306 The NCRC is said to be established
306 Transitional Constitution art 202 (1) and (2). 52 with due regard to regional diversity, gender equality, and requisite skills and experiences.307 Its terms of reference include reviewing the Transitional Constitution and collecting ‘views and suggestions from all the stakeholders regarding any changes that may need to be introduced to the current constitutional system of governance’; and conducting a ‘nation-wide public information programme and civic education on constitutional issues’.308 The NCRC is to present a ‘Draft Constitutional Text and Explanatory Report to the President’ one year after it commences its work.309
This first step is essentially a replication of the failed 2011Transitional Constitution drafting process. The NCRC was established in 2012 but it has been put on hold.310 It has 45 commissioners, the majority of whom (25) are SPLM’s representatives.311 Guri Storaas has provided a report on how far the NCRC went with its work before it stalled. She identified a couple of issues the NCRC had faced. First, the NCRC was given one year to prepare a permanent constitution and present it to the President for review and comments.312 This timeframe was not enough and nothing significant was achieved. The President was petitioned to extend the NCRC’s mandate for another year and he granted the extension, running from 26 February 2013 to 31 December 2014.313
Following the extension, the NCRC launched the first phase of its work, which was a media campaign. However, this was impacted by the ongoing violence in the country which has rendered the environment unsafe.314 Secondly, the NCRC lacked money. The Parliament passed legislation to allocate money to the NCRC−a demonstration of sovereign responsibility. However, the money was not released.315 It is uncertain how much money exactly the Parliament allocated and why the NCRC did not receive the money. Whatever the reason for not releasing the money, it most certainly has nothing to do with lack of money. It may have something to do with a lack of commitment to the process. This is the view some observers seem to share. A Western diplomat, for example, was quoted expressing his frustration at the way the process has been handled. He accused the President of deliberately undermining the process:
307 Transitional Constitution art 202 (5). 308 Transitional Constitution art 202 (6). 309 Transitional Constitution art 202 (10). 310 General Salva Kiir Mayardit, President of the Republic of South Sudan, Presidential Order NO. 02/2012 for the Establishment of the Constitutional Review Commission and the Appointment of its members 2012 A.D (9 January 2012). 311 Ibid. 312 Ibid. 313 Guri Storaas, ‘Participation on Paper but Not in Practice? The South Sudan Constitutional Review Process’ (17 April 2015) Berghof Foundation 9
President Kiir did not want the constitutional review to take place. He allegedly knew that a lot of demands would come through such a process and was not ready to make any concessions. The Government of South Sudan [is] excellent at "double talk": telling the international community all they wanted to hear about participation, gender and equality, and thus managing to divert attention away from the lack of progress in the process.316
Even if the President was not unwilling to make concessions, whatever those concessions might be, his deep involvement in the process, particularly the fact that he has to receive a draft permanent constitution from the NCRC, is highly problematic. What would happen if he was unsatisfied with the draft? The likely answer is that he would not endorse it and that could have severe consequences. The President, for example, could order the NCRC to go back to the drawing board or simply put forward his own version of a permanent constitution. It seems to follow that if a draft permanent constitution must be submitted to the President for comments, opposition parties should also be accorded the same opportunity. There is a need to strike the balance right in the process, taking into account the deep-seated political crisis in South Sudan. Without wishing to sound the death knell for the process, the imbalance in the process is likely to be a source of strife between the government and opposition parties and could possibly derail the entire process if not addressed proactively and adequately.
A situation like this occurred in the 2005 Kenyan constitutional review process when an alliance of opposition parties hijacked the process.317 This prompted the government to unilaterally alter the draft constitution ex post facto.318 This resulted in a fierce struggle between the Kenyan political actors.319 Ultimately, it led to a political unrest in which hundreds of people were killed in 2008.320 A peace accord was brokered in the end but the country had already suffered an immense damage. This is an experience from which the South Sudanese political leaders should learn a lesson and take proactive measures to prevent such situation from happening in this already conflict-ridden country. The 2005−2010 Kenyan constitutional review process is discussed in more detail in Chapter 5.
The second step in the current framework would involve National Constitutional Conference (NCC). After receiving a draft permanent constitution from the NCRC, and subject to his approval, the President shall convene the NCC.321 This is a multi-party conference in which practically all
316 As cited in Storaas, 10. 317 Alicia L. Bannon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) 116 Yale Law Journal 1825, 1867. 318 Ibid. 319 Ibid. 320 Ben Rawlence and Chris albin-Lackey, ‘Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance’ (2008) 20 (1) Human Rights Watch 1, 35. 321 Transitional Constitution art 203 (1). 54 sections of the South Sudanese society are to be represented.322 Delegates are to be nominated by their respective organisations for appointment by the President to the NCC.323 The business of the NCC is to debate a draft permanent constitution and pass it.324 The adopted draft text shall, thereafter, be submitted to the President for further consideration and the NCC shall be deemed to have been dissolved at that point.325
The NCC is not a new idea within the realm of constitution-making, especially in the African post-colonial constitution-building era. It was first used in Francophone African countries in the 1990s and, more recently, in Kenya.326 It has both upsides and downsides. One of the upsides is that it is democratic in that its decisions are taken generally by a consensus or supermajority voting.327 A downside is that it can be too costly, depending on the number of delegates. The 2010 Kenyan NCC had around 629 delegates.328 This raised other serious issues besides cost. For example, there were reports that the delegates were bribed to vote in a particular way.329 It also made enforcing accountability difficult because of the many different people involved.330 The South Sudanese constitution-making process is not immune to these issues, but cost, in particular, is a major concern. Of course, the number of delegates to the NCC is not yet known because it is contingent on the establishment of the conference. It also depends on how many delegates each of the 13 groups identified in the Transitional Constitution would nominate since there are no criteria for nomination.331
The issue of cost has already presented itself as major obstacle to the process. This calls attention to the process to be revised realistically, to work out what is worth the cost and what is not. It is this
322 Transitional Constitution art 203 (1) (a−l). 323 Transitional Constitution art 203 (2). 324 Transitional Constitution art 203 (3) (b) and (d). 325 Transitional Constitution art 203 (3) (e) and (6). 326 Michele Brandt et al, Constitution-Making and Reform: Options for the Process (Interpeace, 2011) 249. 327 Ibid. 328 Ibid, 340. 329 Ibid, 341. 330 Alicia Bannon, above n 318, 1860. 331 These groups comprise: (a) political parties; (b) civil society organizations; (c) women organizations; (d) youth organizations; (e) faith-based organizations; (f) people with special needs; (g) traditional Leaders; (h) war widows, veterans and war wounded; (i) business leaders; (j) trade unions; (k) professional associations; (l) the academia; and (m) other categories to be determined. See Transitional Constitution art 203 (1). 55 thesis’ view that the NCC is not worth the cost and it should be abolished. It makes no difference to use two assemblies − the NCC and National Legislature (the role of which is explained in the next paragraph) to approve a permanent constitution, given they play practically the same role – passing a draft permanent constitution.
The third step is much similar to the second step. It requires the President to table a draft permanent constitution before the National Legislature for ‘deliberation and adoption’.332 This occurs after the President receives it from the NCC, presumably from its chairperson.333 There are several issues with this step. First, it is not clear what exactly ‘deliberation’ means in this context. The ordinary meaning of the word deliberation is to consider something carefully before making a final decision, and decision can mean approving or rejecting the doing of a thing. If this understanding were to apply, the National Legislature could deliberate on a draft permanent constitution and adopt or reject it, or insert its own amendments before adopting it.
The problem is that the Transitional Constitution is silent on these eventualities. As such, there is a need to clarify how the National Legislature is supposed to deliver on this step, because adoption should not be assumed to be the only outcome. Also, the process by which the National Legislature can adopt a draft permanent constitution is not clear. For the NCC, it is by a simple majority (generally 50 + 1).334 Perhaps the same rule could be assumed to apply to the National Legislature. The second issue is that the members of the National Legislature were appointed to office, not elected by the people of South Sudan. They lack a representative mandate to legitimate the adoption of a permanent constitution on behalf of the nation in that respect. If elections are held in the meantime and the National Legislature is duly elected, then ,it would unquestionably have the power and legitimacy to pass a permanent constitution.
The fourth and final step is the promulgation of a permanent constitution by the President. That is, the President assents to it and signs it into law after receipt from the Speaker of the National Legislature.335 This is a common practice in constitution-making. It is more or less indispensable to the President’s role as the head of state. It is this thesis’ view that the President’s role be limited to this step of the process only. That said the President should not be involved in the other stages to the process. This would then require the National Legislature to legislatively amend Chapter II of the Transitional Constitution and remove those clauses that give the President the advantage of receiving a draft during the process. This is easier said than done because there is an authoritarian President in power who is unlikely to yield to limitations on his role in the process. His potential
332 Transitional Constitution art 203 (7). 333 Transitional Constitution art 203 (6). 334 Transitional Constitution art 203 (3) (d). 335 Transitional Constitution art 203 (8). 56 fear might be that his limited involvement in the process could see his executive power reduced substantially.
It is important to note the R-ARCSS provisions governing the permanent constitution-making process. The R-ARCSS largely endorses the existing process. The only new idea it proposes is the enactment of a separate legislation to govern the permanent constitution-making process.336 Even so, it does not define the parameters of this new legislation. It leaves it solely in the hands of the Transitional National Legislative Assembly (TNLA). It is possible that the SPLM will control the drafting of this legislation to suit its particular agenda, given it will have the majority of the parliamentarians in the TNLA. It is disappointing, to say the least, to see the R-ARCSS rehashing the same old unpragmatic processes. It ought to have provided an alternative comprehensive solution to the deep governance crisis facing South Sudan.
In summary, each of the four steps to drafting a permanent constitution for South Sudan contains serious problems and ambiguities. In particular, the President’s involvement in every step of the process is a major concern. These problems cast doubt on the integrity of the permanent constitution-making process and its outcome. If the existing process were to be followed in drafting a permanent constitution, South Sudan would end up with another defective governing law and the country would degenerate into a much deeper crisis. This is a serious problem that calls for an alternative process for drafting a permanent constitution. What might that process look like? This thesis offers a process that could serve as an alternative. As mentioned, this process involves two steps: (1) an elected constitutional assembly to lead the drafting process (an ad hoc body); and (2) a constitutional referendum to give the people of South Sudan the opportunity to approve their governing law. Indispensable to this proposed process are matters of substance of a permanent constitution−checks and balances.
2. An Elected Constitutional Assembly
This section discusses some important aspects of the proposed constitutional assembly, pertaining to its role and nature, how it could be elected and funded.
2.2 Role and nature of a constitutional assembly
A constitutional assembly may be defined as an ad hoc body entrusted with the power to make a new national constitution or revise an existing one.337 It is generally a representative body that exercises pouvoir constituant (constituent power), as opposed to pouvoir constitue (constituted
336 R-ARCSS Chapter VI art 6.3. 337 Michele Brandt et al, above n 325, 241−252. 57 power).338 Constituent power is the power of the people, which, in political terms, may be understood as the will of the people.339 The will of the people is superior to a constitution and government because it predates and creates both. Constituted power is the power of parliament to make ordinary laws.340
In cases where there is a pre-existing constitutional order, the existing constitution may mandate the establishment of a constitutional assembly through direct or indirect means of election. In some cases, an existing constitution may not be suited to provide for the process of making a new constitution, especially for countries making genuine attempts at addressing deeply entrenched historical injustices. Where this is the case, a new provisional constitution may be needed. The interim Constitution of South Africa 1993,341 which was intended to break the country from its painful past (to end the apartheid era) and usher in a new constitutional order, is an example.342 It provided for the election of a new parliament to draft the permanent constitution of South Africa and ‘Constitutional Principles’ against which the content of the permanent constitution had to be judged.343
In the case of ex nihilo constitution-making, that is, where there is no pre-existing constitutional order (where a country has just won independence, for example) a new constitution may be enacted to govern the newly founded nation in the interim and to provide for the process of drafting a permanent constitution. The Transitional Constitution of South Sudan provides an example, although it was not written completely ex nihilo. Eritrea provides another good example within the region. After seceding from Ethiopia in 1993, a goal it achieved after decades of an atrocious civil war (a pyrrhic victory), the Eritrean People’s Liberation Front renamed itself the People’s Front for Democracy and Justice and turned itself into a Provisional Government of Eritrea.344 It issued a proclamation that created its transitional powers and those of a ‘Constitutional Commission’.345
338 Michel Rosenfeld and Andras Sajo, above n 306, 4. 339 Tamara el Khoury, Pouvoir Constituant (December 2017) Max Planck Encyclopedia of Comparative Constitutional Law
That proclamation has been described as an ‘Interim Constitution’ even though it does not meet the requirements of a formal constitution.346
The Eritrean Constitutional Commission was established in 1994, made up of elected and appointed members.347 It took three years to finalise the Constitution of Eritrea.348 The Eritrean Constituent Assembly ratified the Constitution of Eritrea in 1997, which, like all constitutions, declares itself as the collective sovereign expression of the Eritreans. Surprisingly, however, President Isaias Afwerki, a soldier and the first President of this nation, refused to give his assent to the Constitution and the Constitution remains unimplemented to this day.349 Basically, the Constitution has been shelved indefinitely and the country continues to be governed under the 1993 proclamation. Many factors are said to be responsible for President Afwerki’s reluctance to promulgate his nation’s Constitution, among them ‘the absence of an entry into force clause in the Constitution and the 1998−2000 border conflict between Eritrea and Ethiopia’.350 Whether or not these are the real issues or pretexts for a government that has turned totalitarian, it is unclear.
It is important to differentiate between a constitutional assembly and other closely related assemblies such as a parliament (legislature), and a constitutional commission. The difference between a constitutional assembly and a parliament is that a parliament has the power to make ordinary laws of a country by virtue of its constituted power; a constitutional assembly does not.351 A parliament has the power and responsibility to hold the government (executive) to account; a constitutional assembly lacks such power.352 Despite these differences, the roles of both assemblies overlap sometimes. For example, a parliament can serve as a constitutional assembly as noted in the case of the South African constitution-making process of 1994−1996.353 Conversely, constitutional assemblies occasionally serve as parliaments. For example, the East Timor’s constituent assembly voted in 2002 to turn itself into a national parliament shortly after the country attained independence from Indonesia.354 The terms constitutional assembly and a constituent assembly are used generally interchangeably, although in the context of constitution-making a constitutional assembly can be quite large as it includes non-elected personnel (appointed commissioners).
346 Daniel Mekonnen, above n 345, 41−42. 347 Proclamation No.55/1994, Proclamation to Provide for the Establishment of the Constitutional Commission of Eritrea (1994), Government of the Republic of Eritrea. 348 The Constitution of Eritrea 1997. 349 Michele Brandt et al, 185. 350 Simon M Weldehaimanot, ‘The Status and Fate of the Eritrean Constitution’ (2008) 8 African Human Rights Law journal 108, 108. 351 Michele Brandt et al, 231. 352 Ibid. 353 Constitution of the Republic of South Africa, Act 200 of 1993 (SA) section 68. 354 Michele Brandt et al, 347; Dennis Shoesmith, ‘Timor-Leste: Divided Leadership in a Semi-Presidential System’ (2003) 43 (2) Asian Survey 231, 232; ConstitutionNet, Constitutional History of Timor Leste (31 July 2018) Institute for Democracy and Electoral Assistance
The difference between a constitutional assembly and a constitutional commission lies in the appointment process. While both can be creatures of constitution and serve on an ad hoc basis in most cases, a constitutional commission is appointed, whereas a constitutional assembly is elected.355 A constitutional commission can operate as a freestanding body, as in the case of South Sudan’s now defunct NCRC or it can be formed from within a constitutional assembly to carry out specific tasks such as conducting civic education and drafting a constitutional text.356 There are also other features shared by a constitutional assembly and a constitutional commission. Michele Brandt et al have provided extensive discussions of these matters.357 The greater challenge, however, lies in establishing a constitutional assembly. For example, what electoral process (es) should be used to elect the members of the assembly? This can be even more challenging for a country that does not have a well-functioning electoral system in place such as South Sudan. Fortunately, there is an extensive literature on this to consult.
2.3 Election of a constitutional assembly
Since the focus here is on the process for electing the proposed constitutional assembly, it is important to first take note of South Sudan’s electoral system. The Transitional Constitution mandates the establishment of the office of National Elections Commission and enactment of an electoral law.358 This electoral law has been enacted.359 Its ‘purpose… is to establish a legal framework for conducting democratic, peaceful, free and fair elections and referenda in South Sudan’.360 It establishes the National Elections Commission and provides for its functions and powers.361 It also stipulates election methods for the President and National Legislature. For the President, the method is a direct popular vote362; for the National Legislature, mixed methods are to apply, reflecting the tiers within this assembly. Sixty percent (60%) of the members of the National Legislative Assembly (NLA) who represent defined geographical areas (constituencies) are to be elected by a direct method.363 The other 40% of the members of the NLA (25% for women’s representatives and 15% for other members), are to be elected on the basis of proportional representation.364 Members of the Council of States (CoS), as the upper house, are to be selected by
355 Michele Brandt et al, 265. 356 Ibid. 357 Ibid, 265−267. 358 Transitional Constitution art 197 (1) and (2). 359 National Elections Act, 2012 (SS). 360 National Elections Act, 2012 section 3 361 National Elections Act, 2012 sections 8 and 14. 362 National Elections Act, 2012 section 45 (1). 363 National Elections Act, 2012 section 60 (2) (a). 364 National Elections Act, 2012 sections 60 (2) (b) and (c). 60 their respective state legislative assemblies.365 The NLA and the CoS make up South Sudan’s National Legislature.
The rationale for these different election methods is not particularly clear. For women, it might be because of the constitutional gender quota. What is clear, though, is that this electoral system has not been tested in practice since it was designed in 2012. That is because no election has been held in South Sudan since independence referendum. Concerning the proposed constitutional assembly, there are a few points to note. First, as mentioned, there is a need to account for the fact that the current legislature is unelected and thus lacks the legitimacy to facilitate the drafting of South Sudan’s supreme law. A freely elected ad hoc assembly is needed, as such. Second, the size of the assembly has to be determined. A medium-size assembly, in the order of 200 members, is suggested. This number may not be completely representative of the South Sudanese society, however there are other factors in favour of a small assembly. Among these are the lack of funds, which, as discussed, has been a major hurdle to the process, and the fact that larger assemblies can be difficult to control, especially for countries with limited institutional capacity. Besides, South Sudan’s population is comparatively small – it is roughly 12.5 million people. This does not justify having a large assembly.
Third and finally, mixed methods may have to be used to elect the members of the assembly mainly because of the nature of the different stakeholders involved in the drafting process. For the political parties and states’ representatives to the assembly, a direct method may be appropriate, meaning people could vote directly for the delegates. This method had been used in a number of countries in recent times. It was used in Ecuador in 1998 and Bolivia in 2009, for example.366 However, the literature indicates that a list system of proportional representation works best in ensuring a broader representation in a constitutional assembly.367 This owes to its low threshold, which affords minor parties a chance to win seats. This system was applied in South Africa and Bolivia and it was effective in guarding against domination by larger political parties. In Bolivia, the approach was that ‘a party could not hold all the three seats from a district even if it won sufficient votes to do so’.368 If there was another party that had won ‘at least 5 per cent of the votes in the district, it would take the third seat’.369 This method could deliver good results for South Sudan and serve as a constraint on the SPLM’s dominant position in the country.
365 National Elections Act, 2012 section 60 (3). 366 Michele Brandt et al, 241. 367 Ibid, 242. 368 Ibid. 369 Ibid. 61
To ensure representation of non-partisan groups, such as civil society organisations and religious institutions, an indirect method of selection could also be used. Indirect means simply that these stakeholders appoint their representatives to the assembly. Again, this method has been trialled successfully. The 2005 Kenyan Constitutional Commission, for example, included 126 representatives of civil society organisations.370 In rare cases, diasporan communities have also been given the right to appoint representatives to constitutional assemblies. This occurred in Eritrea in 1994.371 The Eritrean diasporan community had 75 appointed representatives to the Constitutional Commission.372
The South Sudanese diasporan community, particularly those residing the Western nations (Australia included), is believed to have made the same demand when the permanent constitution- making process started in 2012. However, the government of South Sudan did not respond positively. Whatever the rationale for the government’s reluctance, it is this thesis’ view that the South Sudanese in the diaspora should be consulted and included in the permanent constitution- making process—whenever the process is resurrected. There is every reason for the South Sudanese in the diaspora to be involved in the design of South Sudan’s new constitutional order. Everything that happens in South Sudan, including the ongoing crisis, affects every South Sudanese in the diaspora. Importantly, the diasporan South Sudanese voted wholeheartedly for South Sudan’s independence in 2011. Legally, the diasporan South Sudanese are citizens of South Sudan and entitled to the same rights as those residing in the country. Article 45 (5) of the Transitional Constitution provides the right to hold dual nationality.
This then raises the question of who is a South Sudanese. This was one of the many contentious issues that had to be resolved before the referendum could be carried out in 2011 in Southern Sudan. The Southern Sudan Referendum Act 2009 addressed this issue, although its main aim was to determine who should vote in the referendum, not who qualifies as a South Sudan for the purposes of citizenship. It defines a ‘voter’ (a South Sudanese) as a person with the following dominant characteristics:-
(1) Born to parents both or one of them belonging to one of the indigenous communities that settled in Southern Sudan on or before the 1st of January 1956, or whose ancestry is traceable to one of the ethnic communities in Southern Sudan, or; (2) Permanent resident, without interruption, or whose any of the parents or grandparents are residing permanently, without interruption, in Southern Sudan since the 1st of January 1956.373
370 Ibid, 241. 371 Simon M Weldehaimanot, above n 351, 117. 372 Ibid. 373 Southern Sudan Referendum Act 2009 art 25 (1) and (2), herein referred to as ‘the Referendum Act’. 62
South Sudan’s post-independence legislation has also dealt with this question. The Transitional Constitution, as mentioned, specifies that ‘[e]very person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality’.374 This is expanded in the Nationality Act, 2011, which states, in part:-
1. A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements− (a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or (b) such person belongs to one of the indigenous ethnic communities of South Sudan. (2) A person shall be considered a South Sudanese National by birth, if at the time of the coming into force of this Act− (a) he or she has been domiciled in South Sudan since 1.1.1956; or (b) if any of his or her parents or grandparents have been domiciled in South Sudan since 1.1.1956. (3) A person born after the commencement of this Act, shall be a South Sudanese National by birth if his or her father or mother was a South Sudanese National by birth or naturalization at the time of the birth of such a person.375
The references to the 1st of January 1956 or since the 1st of January 1956 in both Acts should not carry any weight in determining who is a South Sudanese. It is basically an acknowledgement of the fact that before Sudan achieved independence from Britain in 1956, Southern Sudan was administered separately under the British ‘Southern Policy’ (discussed in Chapter 6 of this thesis).376 The principal reason for highlighting these Acts is that there is perceived discrimination in South Sudan against the diasporan South Sudanese, particularly when it comes to their taking part in the country’s political affairs. It is not clear what has generated this sentiment. To speculate, however, it might have something to do with a fear of competition in the job market in South Sudan. The diasporan South Sudanese, particularly those from the Western world, have some of the well-educated South Sudanese, a majority of whom may even be dual nationals. Regardless, discrimination on any basis should not have a place in South Sudan as a country won from injustices.
The election of the proposed constitutional assembly raises a number of important issues, including funding for the assembly. How much money would this assembly need to successfully accomplish its mission and whose responsibility is it to supply the money? These are some of the practical issues that have to be worked out before the process could be resurrected.
374 Transitional Constitution art 45 (1). 375 Nationality Act, 2011 section 8. 376 Civil Secretary’s Office, His Britannic Majesty's Government, Memorandum on Southern Policy (25 January 1930) as cited in Dunstan M. Wai, The Southern Sudan: The Problem of National Integration (Frank Cass and Company Limited, 1st ed, 1973) 175−178. 63
2.4 Funding for a constitutional assembly
It goes without saying that having a constitutional assembly to lead a drafting process is expensive. There are many demands that have to be met. The members have to be paid for their time and provided with accommodation and transport expenses. In most cases, the members have to be provided with capacity training to give them the necessary skills to undertake the task competently.377 These are in addition to the costs of establishing the support offices, as well as interpretation and translation costs.378 South Sudan is linguistically heterogeneous, which, although it is not a bad thing in and of itself, makes things much more difficult. This will mean a draft permanent constitution will have to be translated into various languages if it is to reflect the views of the people of South Sudan. A further complicating factor is the high level of illiteracy in the country−ie a majority of people are not literate in their own native languages, let alone English; in which case an oral means of participation could be used to solicit their views.
Whose responsibility is it to provide funding for the permanent constitution-making, to meet these costs? It is the responsibility of the SPLM as the government of South Sudan. The funding should come directly from the National Revenue Fund. The SPLM may claim a lack of money to fund the process, yet it can find money to fund an extremely destructive war, buying sophisticated modern weapons, including jet fighters. This is not to deny the economic hardship in the country. However, the issue has more to do with a lack of commitment from the government. If a lack of funds was the only obstacle to the process, external assistance could be sought. In fact, the small fund that got the process started in 2013 came from the International Foundation for Electoral Systems (IFES), an American non-governmental organisation that advocates for universal rights for citizens to participate in free and fair elections’.379 The IFES’s funding helped the NCRC to purchase some of its office facilities and computers.380 However, greater external financial assistance could be sought from the donor community if the process was credibly designed—ie inclusive, transparent, and independent (of the government).
Aside from the IFES, there are a number of international non-governmental organisations or think-tanks that provide financial, logistical, and technical assistance to constitution-makers around the world. These include the International Law Development Organisation (IDLO), International
377 Michele Brandt et al, 156. 378 Ibid. 379 International Foundation for Electoral Systems (founded in 1987, Washington, DC) https://www.ifes.org/who-we- are>. 380 Guri Storaas, Participation on Paper but not in Practice? The South Sudan Constitutional Review Process (17 April 2015) Berghof Foundation 9
Institute for Democracy and Electoral Assistance (IDEA), and the Netherlands Institute for Multiparty Democracy (NIMD).381 The IDLO claims that it provided secretarial and technical support to the NCRC, presumably when the process began in 2013.382 The NIMD has also provided support in constitutional reform processes in a number of countries, including Bolivia, Ecuador, Ghana, Kenya, Malawi, Tanzania, Zambia, and Zimbabwe.383
In the 2010 Kenyan constitution-making, in particular, the Committee of Experts (COE) that led the process fell short of money amid the process. But because the process was well designed and transparent, thanks to the goodwill of the Kenyan government and the expertise of the COE itself, it received over US$5 million in funding from the donor community.384 The COE was able to finalise the process successfully, producing a document about which the Kenyans boast as the second best on the continent after the Constitution of South Africa.385 The point here is that if the process is well designed and implemented accordingly, the donor community is likely to supply sufficient funds. Experiences of those who have been involved in constitution-making in recent times attest to this. According to Michele Brandt et al:
[I]f the design of the process is good and efforts are made to avoid wasteful expenditures, the international community is likely to assist. An early estimate of the costs should be made so that the process can be realistically planned and efforts to secure support from external sources can be initiated. [However] [w]ays must be found to minimize costs whenever possible. Sometimes the ambitious goals of the process must be scaled down.386
While it may be necessary to seek assistance from external funding bodies, experts have counselled that caution should be exercised in doing so. The reason is that the assistance may come with certain conditions attached to it, for example, losing ‘national control of both the agenda and the process’.387 These conditions may not be necessarily bad or unreasonable, however. They may help ensure that a constitution adheres to democratic principles, constitutionalism, and the rule of law. For South Sudan where egregious violations of human rights are practically daily occurrences, these are precisely the sort of rules that have to be enshrined in a permanent constitution.
381 International Law Development Organisation (founded in Rome, 1983)
In summary, it is essential to have an elected constitutional assembly to lead the permanent constitution-making process in South Sudan. This would likely produce an acceptable democratic constitution for South Sudan. In terms of how this assembly could be elected, different election methods are proposed: the representatives of the political parties and state governments could be elected directly by the people of South Sudan through a list system of proportional representation and representatives of non-political organisations−civil society groups and religious institutions— could be appointed, depending on how many of these group present themselves in the drafting process. In terms of funding for the assembly, the funding should be charged to the National Revenue Fund because the permanent constitution-making process is essentially part of the government’s state-building project. The government has a non-delegable sovereign responsibility to fund the process fully. To give a permanent constitution ultimate legitimacy, however, it must be put to the people of South Sudan through a constitutional referendum. This is the second step to this proposed roadmap.
3. The Value of a Constitutional Referendum
A constitutional referendum may be a self-explanatory concept, however it is necessary here to clarify what it means. A constitutional referendum is a popular process by which a new constitution is approved or by which an existing constitution is changed.388 It can be understood as ratification process because it involves the body politic endorsing a document prepared by another body, although the outcome can be a rejection, as in the 2005 Kenyan constitutional referendum. It is a form of electoral process, but a form of direct democracy not a choice of representative politicians. The people vote on a constitution using a simple yes or no method. Referendum can be distinguished from the related concept of plebiscite. Both processes are used to test popular opinion on an issue of national importance but they deliver different results. The results of plebiscites are not generally binding; the results of constitutional referendums are invariably binding.
The point is in suggesting referendum as a final step in the South Sudanese constitution-making process is not to say the political elites should be excluded from the process. The success of a permanent constitution in its post-promulgation period will depend very much on the behaviour of the political elites. Thus the elites must play a significant role at the drafting stages. This is the point many scholars in this field have emphasised − ie to ensure stability in the post-conflict period, the constitution must be predominantly a settlement between political elites or conflict parties.389 The
388 Ibid, 296. 389 Kirsti Samuels, ‘Post-Conflict Peace-Building and Constitution-Making’ (2006) 6 (2) Chicago Journal of International Law 1; Todd A. Eisenstadt, A. Carl Levan and Tofigh Maboudi, Constitutions before Assembly: 66 hypothesis is that the more the constitution is an elite cooperation, the less likely the elites are to act against it.390 Gabriel Negretto has made this point elegantly:
[W]hile the direct participation of citizens in democratic constitutional replacements may be normatively desirable or politically convenient, only cooperation among representative elites at the constitution-making stage is likely to improve [governance] after the enactment of the new constitution.391
Kenya is generally taken as an example of relatively successful cases of elite constitution- making resulting from conflict. After the 2005 constitution-making process failed, the Kenyan Parliament passed the Constitution of Kenya Review Act 2008 to govern the new constitution- making process that produced the 2010 Constitution. This law enshrined 3 important features that ensured the success of the process and acceptability of the Constitution, one of which was the requirement for the constitution to be approved by a qualified majority (65%) of parliamentarians.392 This design contributed to a high degree of collaboration among the main political groups to ensure the Constitution was approved.393 It also ensured that no party had the advantage to manipulate the process. As a product of elite cooperation, the Kenyan Constitution has ensured relative stability in its post-promulgation period, although there have been alleged cases of election fraud.394
The Kenyan constitution-making process has much to offer to countries that are yet to embark on constitution-building process such as South Sudan. As mentioned previously (in the section on the 4 steps to enacting a permanent constitution for South Sudan), the current process is fraught and is unlikely to deliver an acceptable outcome. The fact that it affords the President the opportunity to comment on the draft constitution throughout the drafting process, but denies the opposition the same opportunity, is problematic. A new process that affords the main political groups equal opportunity is needed. The new process should aim at limiting the President’s role to promulgating a permanent constitution but give Parliament more role to play. This would eliminate the risk that the President might alter the draft permanent constitution to suit his own agenda.
The other issue that arises is how the proposed referendum should be conducted to ensure the political actors do not engage in divisive campaigns or tactics. Like the independence referendum Act discussed, it is proposed that the South Sudan’s Parliament should enact a law to regulate a constitutional referendum process − a code of conduct. Such a law must bind all the political parties
Participation, Deliberation, and Representation in the Crafting of New Constitutions (Cambridge University Press, 1st ed, 2017) Ch 5. 390 Gabriel Negretto, ‘Constitution-Making and Liberal Democracy: The Roles of Citizens and Representatives Elites’ (2020) 18 (1) International Journal of Constitutional Law 206. 391 Ibid, 214. 392 The Constitution of Kenya Review Act 2008 sections 33 and 34. 393 Gabriel Negretto, above n 390. 394 Thomas Malony and Robert MacDonald, ‘Re-Evaluating International Observation of Kenya’s 2017 Election’ (2019) 13 (4) Journal of Eastern African Studies 601. 67 and must prohibit 1) hate speech; 2) bribery of voters; 3) deliberate misleading of voters; 4) intimidation or use of force against those who hold opposite views. These may not constraint the lawless SPLM as much but this is where international monitoring effort would help in ensuring the parties play by the rules, hence ensuring a free and fair referendum.
It is apparent that there would be opposition to this proposed constitutional referendum in South Sudan, speculatively by the political elites who might want to maintain the status quo. However, there are strong arguments in favour of a constitutional referendum. Like the vote for separation in 2011, a constitutional referendum would be another moment of ‘self-expression’ and ‘self- identification’395 for the South Sudanese. Indeed, it would be the second historic moment in the South Sudanese’ political history — a moment to endorse principles under which will live generations of the South Sudanese. A. Kalyvas has perhaps put this succinctly, speaking generally about the politics of referendum:
Constituent politics might be seen as the explicit, lucid self-institution of society, whereby the citizens are jointly called to be the authors of their constitutional identity and to decide the central rules and higher procedures that will regulate their political and social life.396
In line with A. Kalyvas’s observation are factors that are said to legitimate a constitutional referendum, particularly for countries emerging from a conflict or those radically changing their constitutions in response to their particular issues:
Popular sovereignty, which, indeed, is the gist of A. Kalyvas’s idea of ‘self- institution’. Since a constitution is a manifestation of national sovereignty, the source of which is the people, the people should have the final say when enacting a constitution. Relatedly, this raises the issue of legitimacy of a constitution. Giving the people a chance to vote on a draft constitution gives a constitution its legitimacy. Legitimacy in this context means the people freely approve of a constitution. Popular participation. Since the people are not generally involved in the drafting process of a constitution, a constitutional referendum gives the people a chance to partake in the process. A check on the drafters. In cases where the process has been participatory, a constitutional referendum gives the people a chance to check whether their views have been sufficiently incorporated in the constitution. This acts as a check against elite capture of the process which can be inevitable.
395 Stephen Tierney, ‘Constitutional Referendums: A Theoretical Enquiry’ (2009) 72 (3) The Modern Law Review 360, 379. 396 A. Kalyvas ‘Popular Sovereignty, Democracy and Constituent Power’ (2005) 12 Constellations 223, 237. Also cited in Stephen Tierney above. 68
Accountability of drafters. A constitutional referendum can also be a means for the people to hold the drafters accountable, especially if the drafters are members of parliament. For example, if the people reject a draft constitution through a referendum, the drafters are deemed to have failed to meet the people’s expectations and consequently may have to resign.397
While these are all admirable points, they are easily countered with other issues–issues to do with reasons citizens partake in a constitutional referendum. These include, but not limited to, the following: As the majority of voters are laypersons, they may not appreciate the significance of contentious issues in the constitution and thus may not bother to go out and vote. This is sometimes compounded by a ‘lack of voter education’, which can be a result of many factors, including government’s unwillingness to fund civic education programs;398 Voting can be divisive as evidenced from ethnically troubled countries. This can create ‘fear’ and ‘mistrust’ for citizens in going out to vote.399
It may be useful to provide an example of how these issues have played out in real life, particularly the most serious ones relating to ‘lack of voter education’ and ‘fear’ and ‘mistrust’, the latter being a result of insecurity that is commonly presents in a post-conflict environment. These issues are better represented by the 1999 Guatemalan constitutional referendum.
Guatemala, a former Spanish colony, plunged into a vicious civil war in the 1960s after 139 years of independence. Various groups, frustrated by the deep social inequality in the country and oppressive policies of the then military government, united to fight for change.400 The roughly four decades-long civil war, which claimed nearly 200,000 lives, was finally resolved in 1996 through the signing of the Firm and Final Accords for a Lasting Peace for Guatemala.401 The peace accord was signed between the government, led by President Alvaro Irigoyen, and Unidad Revolucionaria Nacional Guatemalteca (URNG) (Guatemalan National Revolutionary Unity), an amalgam of different groups. While powerful third parties (eg, UN, US, Norway and Spain) threw their weight behind the peace negotiation process, the Asamblea de la Sociedad Civil (Guatemalan Civil Society
397 Many of these arguments are drawn from Michele Brandt et al. 398 Sung Yong Lee and Roger Mac Ginty, Context and Post conflict Referendums (2012) 18 (1) Nationalism and Ethnic Politics 43, 53. 399 Ibid. 400 History World, History of Guatemala
Assembly), a body that represented the grass-roots, played a larger role in bringing peace to the country.402 It initiated peace proposals that were later incorporated in the final peace accord.403
The peace accord enshrined provisions that required serious constitutional reforms to be implemented concurrently with the peace accord (about 47 articles of the Guatemalan Constitution had to be amended).404 To legitimate these reforms, the peace accord mandated that they be popularly ratified—ie it proposed consulta popular (constitutional referendum). One of the proposals to be put to the referendum was to recognise and give the traditional inhabitants of Guatemala−the Mayans−formal equality and promote their rights and freedoms.405 This was stipulated in the Agreement on Identity and Rights of Indigenous Peoples [of Guatemala] signed in 1995. The referendum was held on 16 May 1999 but the populace rejected the proposals.406
Lack of voter education was identified as a factor largely responsible for the failed referendum.407 A majority of Mayans, (and Mayans are the majority in Guatemala, making up roughly 51% of the national population),408 abstained from voting.409 This, as Yong Lee and Roger Ginty claim, was a result of high illiteracy rate among the Mayans (and this has only slightly changed, 21 years later).410 This meant that a majority of the Mayans had little appreciation of the constitutional issues at stake. Indeed, a lack of understanding can be a source of disinterest. However, it could be argued that the Mayans’ abstention from voting was not wholly due to their lack of formal education. People can be educated orally. It is doable. The issue in the Mayans’ case was that the Guatemalan political actors, including the government, were unwilling to fund civic education programs to prepare their citizens to participate fully and meaningfully in the referendum. Lee and Ginty report on this:
A budget for announcing the contents and the significance of the referendum through the mass media, mainly radio, failed to be approved at the congress since many political parties wanted to use the money in the forthcoming general elections in November of the same year.411
402 Gert Rosenthal, ‘The Peace Process in Guatemala and the Role of Third Parties’ (2001) 8 (1) International Journal on Minority and Group Rights 55, 57. 403 Roman Kryznaric, ‘Civil and Uncivil Actors in the Guatemalan Peace Process’ (1999) 18 (1) Bulletin of Latin American Research 1, 2—10. 404 The Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca, Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society (1996) 83. 405 David Carey Jr, ‘Maya Perspectives on the 1999 Referendum in Guatemala: Ethnic Equality Rejected’? (2004) 31 (139) Latin American Perspectives 69, 69. 406 Ibid. 407 Lee and Ginty, above 396, 53. 408 Minority Rights Group International, Guatemala- Maya (19 June, 2015) >https://minorityrights.org/minorities/maya- 2/#:~:text=The%20majority%20of%20indigenous%20peoples,cent%20of%20the%20national%20population> 409 Lee and Ginty, 50. 410 Ibid, 53. 411 Ibid, 54. 70
Fear and mistrust (a product of insecurity and exclusive state’s policies) was another issue that presented itself in the Guatemalan referendum process, particularly for the Mayans. The Mayans have been subjected to oppression by the politically dominant Ladinos since at least the 19th century.412 As such, they saw little at stake during the referendum. Lee and Ginty make this observation:
Many Mayans, observing the evidence of the government’s conduct towards them, considered the Accord an ineffective promise while others believed it [sic] irrelevant or even counterproductive no matter what the contents were.413
There is one important lesson to draw from this case-study, and that is referendum, even though it aims to give each citizen a say in important constitutional issues, can be a source of varied problems. An example of these problems is the ‘winner takes all’ rule. This does nothing to address the deep-seated divisions and injustices generally found in post-conflict societies. In Guatemala, only 18.5% of (registered) voters defeated the referendum, meaning the future of the country was decided by a small number of citizens. The political actors did little to educate their citizens on what was at stake and provide a safe environment. Rather, they exploited this unfortunate situation to maintain the status quo, which favoured them.
These issues, and many others, have a presence in South Sudan and may, indeed, make a constitutional referendum less attractive for some people. Many of South Sudan’s ethnic communities feel marginalised by the Jieeng led government. This could play out negatively in a constitutional referendum. That is, like the Mayans, these communities could abstain from voting as a way to protest the neglect they have been experiencing since independence. However, these issues could be addressed in a number of ways. For example, the entire process could be given to an independent constitutional commission to run as discussed.414 This would give the process some credibility in the public eye. This would leave politicians out of the equation in terms of their involvement in the campaign and potentially manipulating the voting process. The politicians—the ‘framed’−do have a lot at stake in constitution-making and that is why, as conceded, they have to have their representatives to a constitutional drafting body through their respective political parties.415 Giving the political actors no role to play in a referendum process would hopefully provide a safe and secure environment for citizens to participate fully in ratifying/vetoing a permanent constitution. The issue of voter education could be addressed through educational
412 Mary Grace Miller, A Look at Mayan Oppression in Guatemala (11 August 2018) Borgen Project
As regards the votes that may suffice to ratify a permanent constitution for South Sudan, there is not a set norm on this. Different countries have used different thresholds. The 2010 Kenyan constitutional referendum, for example, required a majority of ‘yes’ votes nationwide and a majority of support in 5 out of the 8 Provinces.416 The same process was applied in the 2005 Iraqi constitutional referendum, although the number of governorates required to support a ‘yes’ vote was practically 100 per cent.417 That is 16 out of 18 governorates were required to support a ‘yes’ vote. These processes are instructive for South Sudan. Given South Sudan’s regional diversity, a majority of at least two-thirds of states would be wise, to ensure broad and inter-regional legitimacy.
In summary, a constitutional referendum is a necessary step in South Sudanese permanent constitution-making for the reasons outlined above, the most important of which are: (1) it would serve as a final check on elite capture and ensure that a permanent constitution is acceptable to a majority of the South Sudanese; (2) it would give a permanent constitution its legitimacy in the public eye; and (3) it would initiate and consolidate a democratic process in South Sudan. Process on its own is insufficient, however. Central to a permanent constitution is the idea of checks and balances. An inbuilt system of checks and balances is likely to promote constitutionalism, the rule of law, protection of human rights and civil liberties in this embattled country.
4. Checks and Balances in a Permanent Constitution of South Sudan
One of the things that will ultimately bring long-term political stability and good governance to South Sudan is how power is well managed. This is both in terms of how power is shared between the institutions of government and how those who wield power are kept in check. This final section of the chapter emphasises the need for a stronger system of checks and balances in a permanent constitution for South Sudan. It begins with a brief overview of the doctrine of the separation of powers.
4.1 Overview of the doctrine of the separation of powers
Like much of Western philosophy, the origin of the doctrine of the separation of powers can be traced to ancient Greece, to the philosophical works of Plato and Aristotle, in particular. In the Laws
416 Michele Brandt, 299. 417 Ibid. As a constitution octroyee (an imposed constitution by the invading Western powers), the Iraqis constitution is highly unpopular in the country, particularly for the Sunni faction. 72
(Book III) Plato combines ‘monarchy and democracy’ to secure a well-governed city-state.418 The term ‘city-state’ in ancient Greece would equate roughly to the term nation-state in contemporary politics. Along similar lines, Aristotle (Plato’s student) uses a mixture of democracy and oligarchy, rule by many and rule by few, to provide for a stable city-state.419 (Aristotle’s most preferred form of government is aristocracy, which is a government by the virtuous people, that is, people of a high moral standing in society.420 Such a form of government is almost impossible because humans are inherently morally corrupt. Lord Acton’s famous epigram serves as an aide-memoire). Aristotle then goes on and divides government into different departments, namely ‘deliberative, executive, and judicial’.421 Aristotle’s critics argue that this is purely an apportionment of governmental functions, far less a division of powers in the strict sense of the concept.422 Even so, the division of powers is more or less a division of governmental functions.
The full development of the doctrine of the separation of powers is attributed largely to the Western political philosophers that emerged during the ‘Age of Reason’.423 Included in this class of thinkers are John Locke and Baron de Montesquieu, both of whom are revered in contemporary scholarship as classical liberals. Classical liberals are those who advocate for three main pursuits: individual freedom in social, political, and economic matters, limited government, both in terms of the size and power, and free market economy.424
In his Two Treatises of Civil Government, which is taken to be a response to the crisis between the monarchy and Parliament in the 17th century in England, Locke argues the ‘legislative, executive, and federative’ powers should be placed in different hands in order to curtail the abuses of power.425 The ‘federative’ power would come within the realm of the executive in contemporary politics, although Locke gives a blurry distinction of it as a power to manage ‘the security and interest of the public’.426 Some have interpreted this as a state power to deal with international affairs.427 Locke does not seem to place much emphasis on the independence of the judiciary as he
418 Plato, Laws (e-book, 2008)
Montesquieu’s work, the Spirit of the Laws, is regarded as the most definitive contribution to the development of the separation of powers. It is a reflection on the arbitrary exercise of power, which was prevalent in Europe during his time (as some of the European countries, including France, Montesquieu’s home country, were ruled by absolute monarchs). The work remains relevant to the contemporary world where dictatorship remains a threat to the rule of law and democracy. It is for these reasons that Montesquieu advocates strongly for the division of powers between the legislature, executive, and judiciary, so as to secure personal liberty under the law. Part of his prevailing argument states:
In order to have… liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner…. [T]here is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.431
Montesquieu’s work is said to have had a profound influence on the US constitution framers in the 18th century. This is, indeed, reflected in the constitutional division of powers wherein the powers of the three institutions of government are enumerated in separate chapters or articles.432 In Federalist No.47, James Madison, one of the framers and founding fathers, described Montesquieu as ‘an oracle’ whose work should always be consulted in forming ‘correct ideas’ about how the three institutions of government should be kept ‘separate and distinct.’433 Generations of American writers, including James Bryce and Woodrow Wilson, have talked passionately about how Montesquieu’s work inspired the framers. According to Bryce, ‘no general principle of politics laid such hold on the constitution-makers and statesmen of America as the dogma that the separation of
428 Louise Fisher, Bertrand Badie, ‘Separation of Powers’ in Dirk Berg-Schlosser, and Leonardo Morlino (eds), International Encyclopedia of Political Science (Sage Publications, Inc. 2011) 2
It is useful to look at how the doctrine separation of powers has been, or is, developing in the Global South, particularly Africa. Two volumes have recently been published on this topic. The first, and perhaps the most comprehensive, Separation of Powers in African Constitutionalism, was published in 2016. The work discusses the history of constitutional development in post-imperial Africa, highlighting specific issues that have impeded the full development and effective functioning of democracy, constitutionalism and the rule of law. One obvious issue is the authoritarian presidents, some of whom have sought constitutional amendments to remove limits (eg, age limit and term limit) from their constitutions to ensure their longevity in power.436 Charles Fombad, the editor of this volume, makes this observation:
The excessive concentration of powers and the abuses that go with it have been one of the greatest impediments to Africa’s development and its attempts, especially in the last two decades, to establish polities which promote constitutionalism, good governance, democracy, and the rule of law.437
Despite this thwarting problem of authoritarian leaders or dominant political parties, the volume reports some encouraging trends on the development of constitutionalism and good governance generally. Some of these are a result of accountability mechanisms enshrined in some constitutions, referred to as independent or statutory bodies. For example, under the South African Constitution 1996 they are referred to as ‘State Institutions Supporting Constitutional Democracy’,438 whereas under the Kenyan Constitution 2010 they are referred to as ‘commissions and independent offices’.439 These institutions have given the constitutionalism a renewed potency inasmuch as they complement constitutional checks and balances.
The second volume on the development of the separation of powers in Africa − The Evolution of the Separation of Powers: Between the Global North and Global South − was published in 2018. Like the one Fombad edited, this volumes makes important observations relating to how the separation of powers has evolved. There are many signs of this evolution. For example, modern constitutions tend to be written with a transformative agenda in mind. The South African Constitution 1996, which guarantees important rights and freedoms, as well as committing the state
434 James Bryce, The American Commonwealth (Macmillan, 2nd ed, 1891) 20−26. 435 Woodrow Wilson, Constitutional Government in the United States (Columbia University Press, 1908) 56. 436 See Jack R. Mangala, The Politics of Changing Presidential Term Limits in Africa (Palgrave Macmillan, 2020). 437 Charles M. Fombad, Separation of Powers in African Constitutionalism (Oxford University Press, 1st ed, 2016) 1−10. 438 South African Constitution 1996 Ch 9. 439 Kenyan Constitution 2010 Ch 15. 75 to overcoming racial, gender and economic inequalities, is as an example.440 Additionally, (and this is similar to accountability mechanisms Fombad has identified), modern constitutions ‘go beyond the traditional tripartite division’ of powers − ie they include oversight institutions in addition to courts. The authors observe:
[Modern] constitutions tend to include a number of other specialized accountability institutions. These often include electoral courts or commissions designed to ensure the integrity of the electoral process and human rights commissions, or ombudspersons designed proactively to investigate and rectify violations of the rights of individuals. They commonly also include a number of other independent actors like auditors, superintendents, procurators and others who are designed to monitor the state or particular areas of policy.441
These oversight institutions, together with the cluster of rights and freedoms mentioned, indicate that modern constitutions are thicker than the proto-type constitutions, that is, those drafted between 18th and 19th centuries in America and Europe. They are, to a degree, a response to corrupt and authoritarian governments prevalent in the Global South as they are intended to guard against these practices.
Even as a prevailing theory of government, the doctrine of the separation of powers is not without issues. At least two issues have been identified with it. The first issue concerns the ‘ambiguity’ around the words ‘separation’ and ‘powers’.442 The word ‘powers’ can be understood differently. For example, it can refer to ‘institutions [of government of the land] or…legal authority to do certain acts’ − to legislate or execute, for example.443 Likewise, the word separation can carry different meanings. For example, separation can take an ‘absolute’ or ‘partial’ form.444 However, absolute separation, which Aileen Kavanagh has termed ‘one branch − one function’, is not possible, or even necessary. This is because in practice the functions of the three branches of government intertwine in some respects.
For example, the legislature (law enactor) combines some executive and judicial functions. An example of executive functions is how it keeps orders in parliament and administers voting on draft bills and an example of judicial function is how it ‘resolves disputes over contempt and breach of privilege’.445 Also, in many systems members of the legislature can serve in the executive.
440 David Bilchitz and David Landau, The Evolution of the Separation of Powers: Between the Global North and Global South (Edward Elgar Publishing Limited, 2018) 8−9; See also Karl E. Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 (1) South African Journal on Human Rights 146. 441 Ibid, 10. 442 Aileen Kavanagh, ‘The Constitutional Separation of Powers’ in David Dyzenhaus and Malcolm Thornburn, Philosophical Foundations of Constitutional Law (Oxford Scholarship Online, 1st ed, 2016) 223. 443 John Finnis, ‘Separation of Powers in the Australian Constitution: Some Preliminary Considerations’ (1967) 3 Adelaide Law Review 159, 162. 444 Aileen Kavanagh, above n 426, 223. 445 Peter L. Strauss, ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ (1984) 84 Columbia Law Review 573 as cited in Aileen Kavanagh, 226. 76
Similarly, the executive (law and policy executor) exercises a legislative function under the guise of ‘delegated legislation’.446 In some countries, the executive can have the primary role of initiating legislations.
Finally, courts (law interpreters) exercise executive and legislative functions in some ways. Courts maintain order in their facilities (an executive function) and make rules to govern their procedures and costs of litigation (a legislative function).447 Courts also make laws, particularly in common law countries, through deciding cases, which has led to the emergence of the doctrine of precedent.448 Even the idea that courts have the power to strike down legislation on some grounds such as invalidity has been questioned. In Aileen Kavanagh’s view, ‘the idea that the judicial function is exclusively to apply the law’ and ‘strike down legislation for non-compliance with constitutional rights looks strained, at best’.449
These interconnections in the functions of the three branches of government suggest that the doctrine of the separation of powers was never meant to operate strictly. What it has come to mean is each branch acts as a check on the exercise of the powers of the other. This, it is said, creates checks and balances.450 It should be made clear that checks and balances is not a concept itself or a separate system. It is a catchword for what this constitutional division of powers is intended to achieve for governmental institutions and society as a whole. It is arguably the end goal of the division of powers. In Federalist No. 51 (1788), James Madison proposes that to secure checks and balances, each institution of government must be given a function that conflicts with the functions of the other. In his words: ‘Ambition must be made to counter ambition’.451 Randall Holcombe provides a good example of how checks and balances work in practice, particularly between the executive and legislature:
[The] executive… propose[s] a total budget and [the legislature] determines the components of the budget. By constraining the total size of the budget, the executive branch can check the legislative branch’s ability to enlarge its individual components, and by controlling its components, the legislative branch can check the executive branch’s appetite for expenditures.452
446 W. B. Gwyn, ‘The Indeterminacy of the Separation of Powers in the Age of the Framers’ (1989) 30 William & Mary Law Review 263, 266 as cited in Aileen Kavanagh. 447 Aileen Kavanagh, 225. 448 Lord Irvine, ‘Activism and Restraint: Human Rights and the Interpretative Process’ (1999) 10 (2) King’s Law Journal 177, 178. 449 Aileen Kavanagh, 226. 450 Ibid, 233. 451 James Madison, ‘Federalist Papers No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances between the Different Departments’ (1788), para 3. 452 Randall G. Holcombe, ‘Checks and Balances: Enforcing Constitutional Constraints’ (2018) 6 (57) Economies 1, 7. See also Torsten Persson, Gerrard Roland, and Guido Tabellini, ‘Separation of Powers and Political Accountability’ (1997) 112 (4) The Quarterly Journal of Economics 1163, 1183—1184. 77
How should governmental powers be divided (or designed) in a permanent constitution for South Sudan to secure checks and balances? In federal democracies, there are two ways of securing checks and balances: power is divided horizontally and vertically. South Sudan is not a federation, although, as discussed in Chapter 6, there is ongoing debate in the country to adopt a federal system. Given the severe consequences of the concentration of power in the national government, thwarting checks and balances, dividing power horizontally and vertically in a permanent constitution might be the solution as it would place the national government and state governments on an equal footing. The anticipation here is that each level of government would keep in check the power of the other and vice versa.
4.2 Horizontal separation of powers in a permanent constitution for South Sudan
The horizontal separation of powers is a somewhat fancy phrase used to describe the division of power among the three branches of government.453 It reflects the way the three branches are constructed horizontally, as opposed to vertically which speaks to intergovernmental relations. It implies equality between the three institutions, at least theoretically. In short, it is a constitutional division of power within any one level of government.
In thinking about how a horizontal separation of powers might be enshrined in a permanent constitution for South Sudan, a good place to start is the Transitional Constitution because it is likely to shape or influence the content of a permanent constitution. The permanent constitution- making process is in fact a review process, meaning the NCRC is simply going to review the Transitional Constitution for the purposes of giving it a permanent status. In that regard, it is crucial to call attention to the inherent issues in the Transitional Constitution.
The Transitional Constitution enshrines a horizontal separation of powers. It enumerates the legislature, executive, and judiciary as comprising the national government and stipulates their powers, functions, and responsibilities in separate parts. Chapter I provides for the establishment of the National Legislature as the principal law-making body. The National Legislature is bicameral consisting of the NLA as the lower house and the CoS as the upper house.454 (This understanding of the NLA as the lower house and the CoS as the upper house is not expressly stipulated in the Transitional Constitution. It has developed as a matter of practice). The National Legislature performs a variety of functions, including making amendments to the Transitional Constitution,
453 Robert F. Nagel, ‘Separation of Powers and the Scope of Federal Equitable Remedies’ (1978) 30 Stanford Law Review 661, 664−665; Gerald Gunther, Cases and Materials on Constitutional Law (1975) 400 as cited in Robert F. Nagel, 665−666. 454 Transitional Constitution art 54 (1) (a) and (b). 78 approving budgets, impeaching the President and Vice President (but this never happened), and approving a declaration of war.455
The National Legislature as a whole is said to represent ‘the will of the people of South Sudan...’456 There are, however, inconsistencies (and ambiguities) in the functions of the National Legislature and NLA, akin to some of the paradoxes discussed in Chapter 3. For example, the Transitional Constitution is silent on who exactly the NLA represents. May be it is meant to represent the will of the people of South Sudan since it is elected (theoretically) directly by the people? That would make sense because the same idea is reflected in other constitutions within the continent. For example, in the South African Constitution, which the Transitional Constitution resembles closely on this point, ‘the National Assembly is elected to represent the people and to ensure government by the people under the Constitution [and] the National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government’.457 Also, the functions of the NLA overlap with the functions of the National Legislature. The National Legislature, for example, has the power to ‘authorize annual allocation of resources and revenue…’458and the NLA has the power to ‘approve budgets’.459 On a plain reading, the allocation of ‘resources and revenue’ and approving ‘budgets’ seem to mean the same thing, both being for expenditure.
To avoid this confusion in a permanent constitution for South Sudan, the powers of the National Legislature should be incorporated in the powers of the NLA. Creating separate powers for the National Legislature suggests it is a separate legislative body when it is in fact an umbrella term for the NLA and the CoS. It can be acknowledged that South Sudan’s national parliament consists of the National Legislative Assembly and Council of States and the powers of each assembly can be set out in different sections of a permanent constitution. Issues to do with amending the constitution and approving the budget should be approved by both assemblies because of their special national significance.
There are also issues regarding the CoS that are worth mentioning. Although it is now a chamber of the national parliament representing the states, it was initially created to accommodate the Southern Sudan’s representatives in the Sudanese Parliament (in Khartoum) during the interim period, who became jobless after the separation. As mentioned, the members of the CoS are appointed by their respective state legislative assemblies, but in practice the President appoints them
455Transitional Constitution art 55 (3). 456 Transitional Constitution art 55 (1). 457 Constitution of South Africa 1996 (SA) art 42 (2) and (3). 458 Transitional Constitution art 55 (3) (d). 459 Transitional Constitution art 57 (c). 79 on recommendation. The rationale for such appointment process is not clear. What is clear is that the process could be susceptible to many ills, including partisan politics and bribery. These were some of the issues that led to the abolition of the selection of the US senators by state legislatures, resulting in the adoption of the Seventeenth Amendment to the US Constitution which empowers the people to elect their senators to the Congress.460 The same system could be replicated in South Sudan since it empowers the people and promotes democracy.
The Transitional Constitution also establishes the National Executive, consisting of the President, Vice-President, and Ministers.461 As mentioned, these executives form the national Council of Ministers (CoM) which is the highest political decision-making body in the land. The President has unfettered powers under the Constitution, including the following key ones. First, the President can ‘issue a provisional order having the force law’ as when the National Legislature is not in session.462 This is basically usurping the National Legislature of its primary law-making function. It is inconsistent with the separation of powers for the President to assume a law-making role. The idea that an order can become a law only if it has been ratified by the National Legislature is meaningless. The order is said to have ‘the force of law’ from the moment it is issued. Even if it did not carry such force, the National Legislature is unlikely to reject it for a fear of reprisal from an authoritarian President.
Second, the President has the power to remove a minister from office.463 The Transitional Constitution is silent on the grounds on which a minister may be removed from office but there can be a variety of reasons for removal. Since the presidential appointments of ministers are subject to approval by the National Legislature,464 it seems to follow that their removals should be subject to confirmation by the National Legislature. This would ensure the President does not act out of personal whim in dismissing a minister.
Third, the President has the power to ‘[c]onvene, summon, adjourn or prorogue the National Legislature in consultation with the Speaker’.465 The circumstances under which the President may exercise these extraordinary powers are unclear. In the case of summoning, that may occur when the National Legislature is not in session and there is an urgent business to be transacted. This is the case under the South African Constitution and it is understandable.466 However, the President’s power to adjourn or prorogue the National Legislature is unjustifiable, given the reason to adjourn
460 United States Senate, Direct Election of Senators
These unfettered presidential powers have made it difficult for checks and balances to develop under the Transitional Constitution. To ensure checks and balances in a permanent constitution, reasonable restraints need to be placed on the President. There are at least two ways this could be done. The first is to consider incorporating a presidential term limit in a permanent constitution, setting it to two terms of four years. However, this alone would probably not be effective enough, given the history in Africa (not limited to Africa only) where incumbent presidents have sought to remove term limits from their constitutions to allow themselves to run for elections for as long as they remain in power.468 Taking that into account, this thesis goes a step further and suggests that a provision governing the term limit in a permanent constitution be set as an eternity clause. The term eternity may imply something divine in nature, but in this context it simply means clause is immutable. In a simple language, the term limit cannot be changed under any circumstances. This would eliminate the possibility that a future president of South Sudan might seek to change the term limit in a permanent constitution and risk entrenching himself (or herself) in power.
The use of eternity clauses to preserve particular issues or ideals in a constitution is not a new idea. Several countries have made use of this. For example, under the Basic Law for the Federal Republic of Germany, the democratic form of government and separation of powers are set as unalterable.469 Similarly, under the Constitution of the Fifth Republic (France), the republican form of government cannot be changed under any circumstances.470 In the US, a fear for an elective republican monarch let to the enactment of the Twenty-Second Amendment after President Franklin D. Roosevelt won four consecutive terms.471 The Twenty-Second Amendment limits the presidential term to two terms, although the term limit is not immutable and it is possible that the Congress and states could change it in the future.472 (In fact, there have been numerous attempts to introduce a bill in the Congress to repeal the Twenty-Second Amendment, none of which has ever
467 Transitional constitution art 101 (r) and (s). 468 Cheryl Hendricks and Gabriel Ngah Kevin, Presidential Term Limits: Slippery Slope Back to Authoritarianism in Africa (17 May 2018) The Conversation
The powerful President of South Sudan may not entertain this suggestion but it is not his prerogative to decide its palatability. The people of South Sudan, the ultimate source of power and legitimacy, have that right. This could be one of the issues to be decided in the proposed constitutional referendum. A constitutional assembly could explain to the people the importance of having a term limit−to serve as a pre-emptive measure against likely capricious changes to a permanent constitution−before voting could take place. This proposal could be put to the people in a simple way, such as: do you want a term limit in a permanent constitution? This question could be answered by a yes or no response on a paper. Given the high level of dissatisfaction with the government in the country, yes would likely to be the answer for a majority of the people.
A second way to place a limit on the President in a permanent constitution is to have a power- sharing arrangement between two political executives: the president and a prime minister as previously proposed by opposition parties. This would mean the country would become a semi- presidential republic. There are two semi-presidential systems that could be considered: ‘premier- presidentialism and president-parliamentarism’.474 The two systems differ in the role the president plays. Premier-presidentialism is one where (1) there is a popularly elected president for a fixed term in office; (2) the president appoints the prime minister who heads the cabinet; (3) parliament has exclusive authority to dismiss the cabinet. Whereas president-parliamentarism involves (1) a popularly elected president for a fixed term in office; (2) the president appoints and dismisses the prime minister and cabinet ministers; (3) the prime minister and cabinet ministers are subject to both parliamentary and presidential confidence.475
In his oft-cited book−Premier-Presidentialism, President Parliamentarism, and Democratic Performance: Indicative Case Studies − Robert Elgie presents contrasting case studies on how premier-presidentialism and president-parliamentarism have performed in some of the post-conflict countries in which they have been adopted. The central thesis of his book is that countries with premier-presidentialism tend to generally perform better democratically than countries with
473 GovTrack, H.J.Res. 15 (113th): Proposing an amendment to the Constitution of the United States to repeal the twenty-second article of amendment, thereby removing the limitation on the number of terms an individual may serve as President https://www.govtrack.us/congress/bills/113/hjres15/summary>.
474 Thomas Sedelius and Jonas Linde, ‘Unravelling Semi-Presidentialism: Democracy and Government Performance in Four Distinct Regime Types’ (2018) 25 (1) Democratization 136. 475 Mathew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge University Press, 1992) 23−24; Thomas Sedelius and Jonas Linde, ‘Unravelling Semi- Presidentialism: Democracy and Government Performance in four Distinct Regime Types’ (2018) 25 (1) Democratization 138; Steven D. Roger, ‘Are All Semipresidential Regimes the Same? A Comparison of Premier- Presidential Regimes’ (2002) 34 (3) Comparative Politics 253, 254. 82 president-parliamentarism (the indicators for this claim were taken from Freedom House).476 Elgie explains what is responsible for these differences in democratic performance:
[B]ecause governments can be removed only by the legislature under premier-presidentialism, this provides incentives for cooperation between president and assembly to facilitate stability. In contrast, under president- parliamentary constitutions, where both president and assembly can dismiss the government, each institutional actor may seek to maximize influence over the government by working against each other, inducing political conflict and instability damaging to democratic stability and performance.477
The indicators provide mixed results, weakening the thesis. For example, in Congo-Brazzaville and Niger, central African countries, premier-presidentialism performed worse than expected, resulting in intermittent political instability.478 One of the many factors responsible for this instability has been the inability of any single political party to win a majority of seats in elections and form government. On the other hand, democracy has stabilised in a number of premier- presidential countries. Mali is one example. Two factors helped stabilised democracy in Mali: President Amadou Toure’s attempt to govern by consensus and Parliament’s ability to constraint the executive.479 Elgie has also reported mixed results from countries with president-parliamentarism. For example, in Namibia − a presidential parliamentary system − the government has performed better and democracy has relatively stabilised. This modest success is explained by reference to the South West African People’s Organisation (SWAPO)’s dominance in the country, although this has started to decline since 2019.480 Elgie explains:
While there have been examples of the president acting unilaterally without consulting parliament the dominance of SWAPO has meant that the executive and the legislature have acted in unison, thus avoiding any potentially destabilizing conflict.481
Like the countries with premier-presidentialism that performed worse than expected, Elgie regards the countries with president-parliamentarism that performed better as confounding cases because they delivered results that were not expected. These results speak to the unpredictability inherent in any system of government.
Which semi-presidential system might deliver the desired results for South Sudan if adopted? As discussed, there are many risks associated with president-parliamentarism. One risk is that it is not
476 Robert Elgie, Premier-Presidentialism, President Parliamentarism, and Democratic Performance: Indicative Case Studies (Oxford University Press, 1st ed, 2011) 171−172. 477 As cited in Edward Morgan-Jones, ‘Semi-Presidentialism: Subtypes and Democratic Performance by Robert Elgie’ (2014) 12 (1) Perspectives on Politics 259, 260. 478 Robert Elgie, above n 468, 167−171. 479 Ibid, 107−114. 480 The Economist, SWAPO Punished by Voters and Loses Super-Majority (6 December 2019)
Even as a viable political system for South Sudan, there are at least two challenges with implementing premier-presidentialism. The first is that the SPLM political elites might reject it completely, given it would reduce the President’s powers or keep them closely in check. There might also be people in the SPLM who would oppose this idea on the basis of being foreign. The fact, however, is that constitutions borrow from each other. It is called transnational borrowing,484 and this should not be a problem for anyone in South Sudan. The Transitional Constitution itself is partly, if not wholly, transnational. That is why, as discussed in Chapter 3, it has been referred to as an ‘intermestic’ Constitution. To test its popularity, this proposal should be put to the people in the proposed constitutional referendum just like the term limit. These are additional issues of national importance that make the argument for a constitutional referendum even stronger.
The second challenge lies in how to divide the executive power (functions) between the president and a prime minister. For example, should both institutions have equal power or should one have more power than the other, and if so, which one and why? Surely, this is a mater on which opinions can be divided. The author is in favour of a less powerful president. However, to get the SPLM elites to come on board, necessary concessions would need to be made, meaning a relatively, not overly, strong president might be agreed to. With that mind, the arrangement is proposed as follows: (1) the president should remain as the head of state and military, elected for two terms of four years; (2) the president should appoint the prime minister on the advice of the presidents of NLA and CoS − the two houses of the National Legislature; (3) the prime minister should then appoint the cabinet and lead the government on a day-to-day basis. In other words, the prime minister would be responsible for implementing laws and government policies. Government ministers would be answerable to the prime minister for their actions and the prime minister may dismiss a minister after consultation with the president. This is to ensure the prime minister does not dismiss a minister on a whimsical basis; (4) the National Legislature should have the power to dismiss the prime minister through a vote of no-confidence. Two-thirds of the parliamentarians should suffice to impeach the prime minister. Equally, the National Legislature should retain the
482 Thomas Sedelius and Jonas Linde, above 466, 139−140. 483 Ibid. 484 Wiktor Osiatynski, ‘Paradoxes of Constitutional Borrowing’ (2003) 1 (3) International Journal of Constitutional Law 244–268. 84 power to impeach the President for serious crimes or official misconduct as it is presently the case under the Transitional Constitution.
There is a potential that premier-presidential system could degenerate into president- parliamentarism if one party is solidly in control of both the presidency and parliament. However, power-sharing, which premier-presidentialism would provide, is the most inclusive way to resolve the simmering political crisis in South Sudan and establish democratic governance. Scientists of politics have almost a unanimous agreement on this point. Per Arend Lijphart, most notable for his path-breaking study on consociationalism, ‘successful establishment of democratic government in divided societies requires…power sharing… Power sharing denotes the participation of representatives of all [conflicting parties] in political decision making, especially at the executive level’.485
Finally, the Transitional Constitution establishes the Judiciary as the third branch of the government of South Sudan, responsible for interpreting the Constitution and adjudicating disputes, as well as dealing with other matters incidental to its functions.486 The Supreme Court is the highest court of the land (or court of cassation) and County Courts are the lowest in the hierarchy.487 The members of the Judiciary are appointed to office by the President on the recommendation of the National Judicial Service Commission (NJSC) subject to approval by a two-thirds majority of the NLA.488 Similarly, a judge can be removed from office by the President on the recommendation of the NJSC on the grounds of ‘gross misconduct, incompetence, incapacity’ to serve.489 The budget of the Judiciary is to be charged to the national consolidated fund and has to be approved by the NJSC.490
There is nothing particularly unusual about this structure. It is very much consistent with arrangements found in most constitutions, particularly in common law countries. Indeed, mandating the NJSC as an intermediary goes beyond what is required in some common law systems. There are a couple of concerns to note, however. First, the judges’ tenures are left in the hands of the legislators to set by enacting a law.491 This could be a potential threat to the independence of the Judiciary because of the partisan politics involved in legislative processes. Under most constitutions, under the Constitution of South Africa, for example, judicial tenure is guaranteed
485 Arend Jiphart, ‘Constitutional Design for Divided Societies’ (2004) 15 (2) Journal of Democracy 96, 97. 486 Transitional Constitution art 125. 487 Transitional Constitution art 123. 488 Transitional Constitution art 133. 489 Transitional Constitution art 134 (2). 490 Transitional Constitution 124 (2). 491 Transitional Constitution art 125 (7). 85 subject to good behaviour.492 It would be best to stipulate judicial tenure clearly in a permanent constitution for South Sudan. It could be set to a fixed number of years, say 12 years, or a judge could serve until he or she reaches the age of 70, whichever occurs first. This is the approach under the Constitution of South Africa.493
Second, the budget of the Judiciary is subject to approval by the NJSC. This can compromise judicial independence. The NJSC is said to be an independent body but it is not clear how it is constituted. Under the Constitution of South Africa, from which the idea of the NJSC seemed to have been borrowed, the Judicial Service Commission is a multi-member body, consisting of members from the National Assembly, Judiciary, legal profession, National Council of Provinces etc.494 This wide representation in the Commission helps ensure it fulfils its functions accordingly. The same composition could be replicated in a permanent constitution for South Sudan if it is necessary to keep the NJSC. It is this thesis’ view that the judiciary’s budget should come directly from the consolidated fund without the bureaucratic requirement of being approved by an intermediary body.
These concerns are on top of an already compromised judicial independence. The Judiciary lacks both financial independence and decisional-independence as its decisions (functions) are interfered with politically. There is some evidence in support of these claims, coming directly from those who have served in the judiciary. For example, in 2017 Supreme Court judge, Justice Kukurlopita, resigned citing these very issues. On the lack of financial independence, he stated:
The Judiciary lack financial independence as enshrined in the Transitional Constitution. The guarantee of financial independence is the promulgation of specific tool, instruments and financial measures to prevent the subjection of the judicial authority to the executive and legislative organs. The absence of these prerequisites has the Judiciary vulnerable to extortion… The budget of the Judiciary is entirely a decision of the executive only subject to the procedural cosmetics by the Judiciary to mislead the public that the budget in fact is made by the Judiciary. The poor remuneration for judges and justices in South Sudan is a breeding ground for corruption in the Judiciary, and once corruption is exhibited, whatever justice is said to be done is a sham.495
On political interference in judicial functions, he stated:
Over the years, despite our efforts individually and collectively, the independence of the judiciary in the Republic of South Sudan has become a mockery and pasquinade. The judiciary lacks institutional independence and the independence of Judges and Justices in performing their function is interfered with and
492 Constitution of South Africa 1996 section 176. 493 Constitution of South Africa, 1996 section 176 (1). 494 Constitution of South Africa 1996 section 178. 495 Kukurlopita Marino Pitia, former judge of the Supreme Court of South Sudan, ‘Resignation as Justice of the Supreme Court of the Judiciary of South Sudan’ (Press Release, 14 November 2017) Monitor
hence the guarantee of the independence of the judiciary by the Constitution and the law is a fallacy… The war in South Sudan cannot be used as an excuse to interfere and silence the judiciary. If anything, [the] judiciary must stand tall during war periods where so many rights are in jeopardy and to protect those rights. It is difficult for the judiciary to properly administer justice and guarantee the supremacy of the rule of law, respect and observation of human rights and freedoms and strengthen the system of good governance. I testify to the people of South Sudan that the judicial system in the country is no longer capable of delivering justice in accordance with the Constitution and the law, as expected by our people.496
These issues are in addition to the unilateral removal of judges from office by the President.497 That is, without a recommendation from the NJSC as constitutionally required.498 Precisely 14 judges have been dismissed since independence.499 These overreaches not only threaten the independence of the Judiciary, they equally undermine proper administration of justice and the rule of law. There are no quick solutions to these problems as long as there remains in power the military government that has little regard for the rule of law and administration of justice. However, things could be done differently in a permanent constitution, which would hopefully herald a new beginning. The process for removing judges could be subject to approval by two-thirds of the National Legislature just like the appointment, and be triggered only by a proof of serious misconduct. This is the approach in many countries. In South Africa, in particular, the President can only appoint judges after consultations with the Judicial Service Commission and National Assembly.500 The same applies in removing them.501
The US Constitution perhaps provides a more balanced process for the appointment and removal of federal judges. The power to nominate judges lies with the President but the Senate has the power to confirm nominations.502 The power to remove (impeach) a judge lies with the House of Representatives.503 However, the impeachment has no effect until it has been tried by the Senate, the conviction of which requires the approval of the two-thirds of the Senators in order to be passed.504 These different systems provide the South Sudanese constitutional drafters with many choices in building effective safeguards into a permanent constitution to guard against executive overreach.
496 Ibid. See also Mark A.W.Deng, ‘South Sudan v James Dak: a Case of Travesty of Justice (Policy Brief)’ (2018) Sudd Institute 1, 6−7. 497 Mark A. Deng, ‘The Importance of Judicial Independence to the Administration of Justice: The Case of South Sudan’ (2016) Sudd Institute 1, 4−7. 498 Transitional Constitution art 134 (2). 499 Kukurlopita Pitia, above n 478. 500 Constitution of South Africa section 174 (3). 501 Constitution of South Africa section 177 (1) (a) and (b). 502 US Constitution art II § 2. 503 US Constitution art II § 4. 504 US Constitution art I §3. 87
In summary, it is essential to have a well-defined horizontal separation of powers in a permanent constitution for South Sudan. To guard against an entrenched dictatorship, constitutional drafters are best advised to consider incorporating a term limit and creating a post of prime minister in a permanent constitution. A prime minister could be the answer to the strong presidency as the two executives could act as a check on each other’s power. As noted, there is another feature of power-sharing that provides additional checks and balances to the constitutional system, especially in federal democracies. This is the idea of vertical separation of powers.
4.3 Vertical separation of powers in a permanent constitution for South Sudan
Vertical separation of powers is an aspect of federalism, taking its name from how parties to a federal system are arranged, from top to bottom. This is reflected in the scholarly understanding of the concept. Richard Albert, for example, understands the concept as:
[A] federal arrangement between the national and state governments. What follows from the vertically divided powers of federalism is first, that the national institutions stand above their state counterparts in the hierarchy of constitutional authority, and second, that states are subject to the intrusive reach of the national government when deemed necessary to the national interest.505
In the same vein, Erin Ryan notes that vertical separation of powers divides power between the state and federal levels and it serves to preserve the integrity of each level of government lest the system becomes decentralised.506 In that sense, it ensures ‘checks and balances between [the different levels of government] and protects individuals from overreach or abdication by either’ level.507 What these insights suggest is that vertical separation of powers allows the subnational governments to share in the national sovereignty but does so in a way that allows common goals to be achieved. Sharing in a national sovereignty (shared sovereignty) is critical to domestic political stability, especially for ethnically diverse (or troubled) countries where power is a major cause of division and disintegration. If well administered, a shared sovereignty can foster local or regional autonomy and diversity.
Like the origin of federalism discussed in Chapter 6, an analogy that underscores the significance of vertical separation of powers is drawn from the book of Exodus in the Bible (Old Testament). After leading the Israelites out of Egypt (Kemet), Moses found himself confronted with arduous task of having to solve problems for roughly 3 million people in the wilderness. Luckily,
505 Richard Albert, ‘The Separation of Higher Powers’ (2012) 65 (1) SMU Law Review 3, 6. 506 Erin Ryan, ‘Negotiating Federalism and the Structural Constitution: Navigating the Separation of Power both Vertically and Horizontally’ (2015) 115 Columbia Law Review Sidebar 4, 4. 507 Ibid, 14. 88
Jethro (Moses’ father-in-law) came to Moses’ aid. He advised Moses to appoint rulers to help him solve problems:
…[Y]ou shall select from all the people able men…to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. 22 And let them judge the people at all times. Then it will be that every great matter they shall bring to you, but every small matter they themselves shall judge. So it will be easier for you, for they will bear the burden with you. 23 If you do this thing…you will be able to endure, and all th[ese] people will also go to their place in peace.508
Moses delegated his authority as advised, lightening the burden of having to judge the cases by himself. While the delegation of Moses’ authority did not create formal governments in the modern sense, this account is said to have inspired the US constitutional framers who sought to ‘assign to each level of government that service which it could perform the most efficiently and the most economically’.509 This is called subsidiary federalism. It is reflected in Thomas Jefferson’s oft-cited letter:
The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the state generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations until it ends in the administration of every man's farm by himself, by placing under everyone what his own eye may superintend, that all will be done for the best.510
Vertical separation of powers is not foreign to South Sudan. It is expressly provided in the Transitional Constitution wherein the national government and state governments are each assigned exclusive powers.511 The problem, however, is that, as discussed in Chapter 3, the state governments are subordinate to the national government in the sense that the President retains the power to have a say in the states’ political matters (eg, he removes a state governor and dissolves a state legislative assembly). This effectively undermines the system.512 It is in the interest of stability and good governance to entrench the autonomy of state governments in a permanent constitution. Indeed, this would foster democracy at the state level, thus empowering the body politic.
508 Holy Bible, Exodus 18: 13−26 (King James Version) as discussed in the National Center for Constitutional Studies, ‘Vertical Separation of Powers−Key to Domestic Tranquillity’
Like a national permanent constitution, state constitutions would need to be founded on horizontal separation of powers. Presently, there are only two organs, namely the State Legislative Assembly and State Executive that comprise the state governments.513 The judiciary as the third arm of government is absent. This is clearly one area where the Transitional Constitution departed from the 2005 Interim Constitution, a move that has been described as a coup de force (a coup against an existing constitution).514 Under the Interim Constitution, the states had their own judiciary, consisting of High Courts, County Courts, and any other courts and tribunals the state governments may establish.515 Whatever the drafters’ motivations for leaving out this provision of the Interim Constitution, it ought to be reinstated in a permanent constitution, but perhaps styled differently. The doing of justice and maintenance of the rule of law at the state level is as paramount as it is at the national level.
5. Conclusion
Despite its disheartening political crisis, South Sudan has a chance to reinvent itself. A large part of this reinvention effort lies in crafting a more workable constitution. This chapter has discussed the process for drafting a permanent constitution for South Sudan. It comprises two parts. The first part analyses the existing permanent constitution drafting process, which has four steps. In doing so, it identifies a number of issues with each step, the most concerning being the role of the President throughout the process. There are two major issues with the President’s involvement in every step of the drafting process: (1) it raises the obvious issue of institutional self-dealing, which, knowing its severe consequences from the Transitional Constitution, must be kept under control in a permanent constitution drafting process; and (2) it is unfair for one political executive to have a level of involvement in the process while other political forces are not being extended the same opportunity.
To address these issues, the second part of the chapter proposed an alternative process for drafting a permanent constitution. This, too, proceeds in two parts. The first part proposes an elected constitutional assembly to lead the drafting process. An elected constitutional assembly would serve many purposes for the country. For example, it would mean the country has a legitimate and independent drafting body. The NCRC was subjected to partisan politics and was unable to resist pressure from the government, for that matter. The second part proposes a
513 Transitional Constitution art 163 (1) and (2). 514 Andreas Auer et al, The Transitional Constitution of the Republic of South Sudan: an Expert View from the Outside (2011) Centre for Democracy Studies Aarau 26-27
The final section has discussed, in broad terms, substantive aspects of a permanent constitution. It argues that for a permanent constitution to provide an effective system of checks and balances, it must be founded on horizontal and vertical separations of powers. To make this certain or achievable, it proposes two ways to constrain the powerful President of South Sudan: an immutable term limit of two terms of four years to be incorporated in a permanent constitution; and a prime minister to act as a counterbalance to the President. These proposals, it is argued, should be put to the people of South Sudan in the proposed constitutional referendum.
The broader issue of popular participation presents itself in the South Sudanese constitution- making process. As a people who won their independence from decades of institutionalised injustices (in Khartoum), the people of South Sudan have every right to partake in the design of their constitutional order.516 Thomas Omestad could not be more right in stating that constitution- making in South Sudan needs to be based on the ‘nation’s unique history, politics,…priorities and needs’.517 More broadly, popular participation in constitution-making has now emerged as a legal right of people under international law. The next chapter (Chapter 5) shifts focus to the question of how the South Sudanese could participate fully and genuinely in their permanent constitution- making process.
Chapter 5 —The Role of Popular Participation in Constitution-Making: The Case of South Sudan
Political elites inevitably play a major role in making decisions about how to structure a new state. However, there is now an established trend to build into the process broad participatory mechanisms in order to avoid a constitution that simply divides the spoils among competing factions, and to improve the chances of the new constitution enjoying a high degree of popular legitimacy.518
Chapters 3 and 4 have focused on identifying the problems in the Transitional Constitution and making the case for an alternative roadmap to a permanent constitution for South Sudan. This
516 United States Institute of Peace, Constitution Making in Sudan and South Sudan (2011)
First, it should be noted that there is not a scholarly consensus as to the impact of popular participation in constitution-making, consensus being a difficult thing to achieve on complex matters.519 That is, whether it delivers a document that truly reflects popular wishes or a particular form of political order under which people wish to live. It is true that the public not always speak with a unified voice on any matter, including this, and the concept of ‘popular wishes’ here (as is usually) refers to the wishes of a majority of people.
Despite the lack of a decisive role of popular participation in constitution-making, this thesis argues that it should form the basis of the South Sudanese permanent constitution-making for two principal reasons. First, as mentioned, South Sudan was liberated from tyranny under which the South Sudanese suffered political marginalisation for decades. The vote for independence was a clear rejection of the exclusionary policies of the oppressive regime in Khartoum (if less so for the less informed). The point here is that any genuine attempt by South Sudan’s political elites to design a political order for this new nation must place the people at the centre of the process. It is in a way part of being institutionally cognisant of historical injustices lest history repeats itself.
In addition, this historical lesson has ongoing bite in the sense that an inclusive constitution- making process is vital to the peacebuilding process in South Sudan. It could, for example, provide a framework within which opposing elements (relentless multiple armed movements) could work together to build consensus and potentially forge a durable peace for the country. In fact, this is a point some scholars have argued strongly as a key to ‘conflict transformation’ in deeply divided societies.520 Second, there is an internationally recognised claim to popular participation in constitution-making by right. This is called the right …‘[t]o take part in the conduct of public affairs’.521 This right has been upheld by the United Nations Committee on Human Rights (UNCHR) in recent times, thereby strengthening its status both internationally and locally (locally as in domestic constitution-making processes).522
519 Tom Ginsburg, Zachary Elkins, and Justin Blount, ‘Does the Process of Constitution-Making Matter?’ (2009) Annual Review of Law and Social Science 5.1, 5.19. 520 Vivien Hart, ‘Democratic Constitution Making (Special Report 107)’ (2003) United States Institute of peace1, 1; Vivien Hart, ‘Constitution-Making and the Transformation of Conflict’ (2001) 26 (2) Peace & Change 153, 167; Barak Saarti, ‘Participation- to Unveil a Myth’ in Tania Abbiate, Markus Bockenforde, and Veronica Feredrico (eds), Public Participation in African Constitutionalism (Routledge, 1st ed, 2018) 15. 521 ICCPR art 25. 522 Human Right Committee, Views: Communication No: 205/1986, 43rd sess, UN Doc CCPR/C/43/D/205/1986, (3 December 1991) (‘Marshall v Canada’); Human Right Committee, General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public service, 57th sess, UN Doc CCPR/C/21/Rev.1/Add.7 (12 July 1996) (‘General Comment’). 92
These two major points are foundational to the overarching argument in this chapter. The chapter proceeds in four sections. The first section discusses traditional constitution-making. This was an elite-centred process as political elites controlled both the drafting process and the content of a constitution. However, this has been changing gradually since at least the 20th century−since the 1970s precisely.523 Part of what led to this change has been the idea that a truly genuine political settlement should include the people−an idea inherent in democracy as a global phenomenon.524 This might be described as the emergence of modern constitution-making, which, although not always, is characterised by inclusivity, participation, and transparency.
The second section provides a conceptual understanding of popular participation and its intrinsic aspects, namely direct and indirect participation. The third section examines citizens’ right to participate in constitution-making under international law. The relevant international instrument here is the ICCPR, one of the UN covenants that make up the International Bill of Rights. To gain a deeper understanding of the nature of this right, UNCHR’s decisions are consulted. UNCHR is charged with the responsibility to monitor the implementation of the rights enshrined in the ICCPR and to hear complaints involving violations of the covenant.525
The fourth and final section provides some discussion on civic education. Civic education helps enhance citizens’ understanding of the real issues at stake in constitution-making, as well as informing the choices they have to make. Given the Government of South Sudan lacks experience in constitution-making and governance generally, it may be useful to undertake a comparative case study on civic education to see what lessons can be drawn for the South Sudanese permanent constitution-making. The South African constitution-making (1996) and the Kenyan constitution- making (2005−2010) provide the most pertinent case studies. The methodology used in selecting these two countries as case studies is the ‘most similar cases principle’ which comes under the theory of ‘inference-oriented’ case selection.526
This principle is used generally in social sciences and comparative constitutional law. It was first developed by John Stuart Mill in his two volumes − A System of Logic − published in 1843, and
523 Michelle Brandt et al, above n 501, 10. 524 United Nations High Commissioner for Human Rights, Human Rights and Constitution Making (2018) 11−16
The selected case studies have some major similarities, not only with each other but also with South Sudan, the most striking of which are: (1) these two countries had to overcome their deep racial cleavages (historical in the case of South Africa) and political oppressions − some of the most difficult issues South Sudan is grappling with; (2) they had successful civic education programs during their constitutional drafting processes that enabled their citizens to participate meaningfully; and (3) their constitutions are regarded as the most liberal or democratic on the continent. South Sudan has much to learn from these case studies in undertaking its constitution-making process and/ or designing its permanent constitution. The final section of this chapter draws particular lessons from these case studies in terms of what worked and the problems that arose during the drafting processes and how South Sudan could potentially avoid such problems.
1. Traditional Constitution-making and the Rise of Popular Constitution-Making
This section discusses two closely related developments. The first is traditional constitution- making, that is, the process by which some of the world’s oldest constitutions were written. These constitutions include that of the US, Poland, France, and the Netherlands. They have been referred to as the first wave constitutions as they marked the beginning of an era of formal constitution- making.530 The second is the rise of popular constitution-making and the rationale behind it.
527 See Arend Lijphart, ‘Comparative Politics and Comparative Method’ (1967) 65 (3) American Political Science Review 682; Sidney Verba, ‘Some Dilemmas of Political Research’ (1971) 20 (1) World Politics 111; and Adam Przeworski and Henri Teune, ‘The Logic of Comparative Social Inquiry’ (R.E. Kriegar Publishing Co, 1982) 528 Ran Hirschl, above n 524, 133−134. 529 Ibid, 129. 530 John Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 (464) Duke Law Journal 364, 368. Elster argues that constitution-making has occurred in waves, starting from the 18th century to the present, a concept that parallels Samuel Huntington’s theory of waves of democratisation. See Elster, pp 368—369. 94
The US Constitution is considered the world’s first formally written federal constitution.531 Written in 1787 by a hand-picked group of delegates, the US Constitution provides a classic example of elite constitution-making. The delegates were tasked to revise the Articles of Confederation, but they departed from the agreed process and came up with a totally different document, which, in hindsight, might have been what the states’ enduring union needed.532 This departure from the process owed substantially to the ineffectiveness of the Confederation to preserve the union and limited power it accorded to the central government, especially.533 The new Constitution corrected these deficiencies by giving the federal government sufficient economic powers, as well as the power to raise a military.534
Following the enactment of the US Constitution, the idea of a written constitution gained popularity in the world progressively. Indeed, the US Constitution became a major source of inspiration for many countries, including Australia.535 However, the Australian constitutional drafting process had more direct popular involvement than the US’. For example, the Australian delegates to the 1897 Constitutional Convention were largely popularly elected.536 Also, the Australian Constitution was ratified directly by the people, the then newly franchised population, although only partially.537 It was a partially franchised population in the sense that only in two colonies−South Australia and Western Australia−were women given the right to vote at that time. As well, the Indigenous people were not entirely franchised until the early 1960s.538 These two
531 William J. Brennan Jr., ‘The Worldwide Influence of the United States Constitution as a Charter of Human Rights’ (1991) 15 (1) Nova Law Review 1, 2—3; Jose Luis Cordeiro, ‘Constitutions from around the World: A View from Latin America’ (Discussion Paper No.164) (2008) Institute of Developing Economics 2. While the US Constitution is believed to be the first written federal constitution, there were a number of other constitutions that preceded it. The Instrument of Government of England, Scotland, and Ireland 1653 (a short-lived document), for example, is believed to be the first written non-federal constitution. See Suri Ratnapala, ‘Foedus Paficum: a Response to Ethnic Regionalism within Nation State’ in Gabrielle Appleby, Nicholas Aroney, and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 1st ed, 2012) 254. Also, the Ukrainian constitution of 1710 preceded the US Constitution. See Omeljan Pritsak, ‘The First Constitution of Ukraine (5 April 1710)’ (1998) Harvard Ukrainian Studies 471, 471. 532 George Ticknor Curtis, History of the Origin, Formation, and Adoption of the Constitution of the United States (with Notices of its Framers) (Harper and Brothers Publishers, Franklin Square, New York, 1858) 11—12. 533 Ibid. 534 US Constitution art 1 § 8. 535 Benedikt Goderis and Mila Versteeg, ‘Transnational Constitutionalism: A Conceptual Framework’ in Denis J. Galligan and mila Versteeg (eds), Social and Political Foundations of Constitutions (Cambridge University Press, 1st ed, 2013) 103. For example, many of the 19th century Latin American constitutions were copied from the US Constitution almost word for word. Simon Bolivar has described this as ‘craze for imitation’. See Detlef Nolte and Almut Schilling Vacaflor (eds), New Constitutionalism in Latin America: Promises and Practices (Routledge and Taylor Francis Group 2st ed, 2012) 75; José Antonio Cheibub, Zachary Elkins, and Tom Ginsburg, ‘Latin American Presidentialism in Comparative and Historical Perspective’ (2011) 89 (40) Texas Law Review 1, 3−4. 536 Glenn Rhodes, Votes for Australia: How Colonials Voted at the 1899-1900 Federation Referendums (Centre for Australian Public Sector Management, 2002) 5. 537 Ibid, 13. 538 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 1st ed, 2009) 181. The Commonwealth Electoral Act (No 31) 1962, repealed by Amending Acts 1901 to 1969 Repeal Act 2014, granted all the Indigenous people an optional voting right, ie the enrolment to vote was voluntary. 95 features, popular election of the drafters and constitutional referendum, seem to set the Australian constitution-making process apart from the US. They are also what might make the Australian constitution-making process an experience from which the South Sudanese constitutional drafters could draw some (practical) lessons.
The next country to have a formally written constitution after the US was Poland in 1791.539 This is called the Constitution of 3 May, 1791 (Polish Constitution). The Polish Constitution resulted from an attempt to reform the monarchical government. This reform task was entrusted with a commission appointed by King Stanislaus Poniatowski in 1789.540 Between 1789 and 1790, the commission laboured to produce various draft constitutions, none of which seemed acceptable to the ruling class, especially the King as they placed much of the power in the hands of the gentry.541 This attempt to structure power differently prompted the King and his loyalists to capture the process in 1791, writing their own version of the constitution and imposing it on the country.542
Although it is celebrated as Europe’s first codified constitution, the Polish Constitution lasted for a short duration as Poland succumbed to foreign invasions and occupations that lasted for over a century (from 1795−1918).543 It is reported that Poland has had a total of 10 constitutions since 1791, the last of which (present Constitution) was enacted in 1997.544
France was the third country in the world, and the second European country, to enact its constitution, in the same year as Poland (1791). This unprecedented development in French history was aimed at addressing the injustices of the old system and limiting the absolute powers of the monarch.545 The then newly formed National Assembly (a revolutionist group representing the Third Estates (common people)) appointed a committee, consisting of 12 men to draft the Constitution.546 The drafting process proved somewhat difficult, however. A number of contentious issues arose, dividing the committee into two groups: monarchiens (monarchists) led by Jean- Joseph Mounier and ‘anti-absolute monarchy group’ (for lack of a better word) led by Emmanuel
539 Kim Lane Scheppele, Perspectives on the Constitution: Constitutions around the World (1999) National Constitution Center
Sieyes and Charles de Talleyrand.547 Some of the contentious issues included the role of the monarch under the constitution, the parliamentary system France ought to have (bicameral or unicameral), and voting in elections.548
The monarchists preferred a bicameral parliament and strong executive powers for the King, whereas anti-absolute monarchy group preferred a unicameral parliament and a limited monarchy.549 With the support of the National Assembly, the second group won the day, and a constitutional monarchy was established in France for the first time.550 In relation to voting rights, it was resolved that only those with the capacity to pay taxes (‘active citizens’, who were males of 25 years and above) should vote in elections and stand for office.551 Owning a property somehow became a qualification for voting, which made voting looked more like a privilege, not a right.552 The 1791 French Constitution lasted for one year only as the country descended into intermittent periods of instability, dubbed the revolution. This saw the creation of various French republics, the Fifth Republic (France’s current republican system of government) created under the Constitution of October 4, 1958, being the last.553
Finally, the Netherlands was the fourth country to write its constitution in 1814.554 This occurred shortly after the Netherlands reclaimed its independence from France in 1813.555 Independence saw Prince William Frederick (William I) installed as the sovereign ruler of the Netherlands.556 Eager for a formal legal document to provide the basis for his government, Prince William commissioned a committee of experts to draft a constitution three months after he was crowned.557 The committee took just three months to finalise and present the constitution to this new head of state for promulgation.558 Like the French Constitution, the Dutch Constitution
547 Ibid, 63. 548 Ibid, 64. 549 Ibid, 65. 550 Ibid. 551 The Constitution of 1791 National Assembly September 3, 1791section 2 552 Jennifer Llewellyn and Steve Thompson, The Constitution of 1791 (2018)
The principal point of presenting these world’s oldest constitutions is to highlight the difference between traditional constitution-making and modern constitution-making. This point of difference is that traditional constitution-making was mostly elite-driven, conducted behind closed doors or conferences. This is clearly evidenced in the drafting processes of the four constitutions discussed. It might be argued that the US’ drafting process had some elements of modern constitution-making in terms of the ratification process and intense debate it involved reflected in various Federalist Papers.561 The State Legislatures ratified the US Constitution, meaning the legislatures as elected representatives had authority to approve the Constitution on behalf of their citizens.
These cases seem to confirm a common issue suffered by elite-made constitutions, namely instability.562 The US Constitution and Australian Constitution are the exceptions here as they have stood the test of time. Another noteworthy exception in this respect is the Constitution of Japan 1947. The Japanese Constitution (referred to sometimes as the ‘MacArthur Constitution’ because General Douglas MacArthur (Supreme Commander of Allied Powers) led the drafting process) has stood the test of time despite being a foreign imposition.563
Many factors explain the stability of the Japanese Constitution, among them the liberal principles embedded in it that have helped Japan to become a liberal democracy in Asia.564 Some scholars point to the stability of the Japanese Constitution as a legitimating factor, implying that popular participation in constitution-making is not always necessary for the durability (and
559 Martijn van der Burg, ‘Transforming the Dutch Republic into the Kingdom of Holland: the Netherlands between Republicanism and Monarchy (1795–1815)’ (2010) 17 (2) European Review of History 151, 164. 560 Reijer Passchier, ‘The Constitution of the Netherlands at 200 – Lessons Learned for Constitutional Transitions Today’ on Leiden Law Blog (26 May 2015)
Highlighting the difference between traditional constitution-making and modern constitution- making, however, is not to say traditional constitution-making is gone and forgotten. It is still applicable in modern times, although it is not as common. There are a good number of countries in which it has been used in recent times. These include Bosnia-Herzegovina (1995), Timor-Leste (2002), Afghanistan (2004), and South Sudan (2011), to mention a few.
Modern constitution-making, on the other hand, departs in some radical ways from traditional constitution-making. It might be described as the antithesis of the old process. Vivien Hart, one of the passionate advocates of popular participation, has described it as ‘a conversation conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable’.568 In short, it is a people-driven process but one in which elites still play an important role such as drafting the text.
Why the shift to popular constitution-making and when did this occur? Multiple factors are identified as responsible for this shift. These include the legitimacy of a constitution as a manifestation of political settlement between the ruled and the rulers and the emergence of popular sovereignty, one of the foundational principles in the 18th century liberal thought.569 The elite-made constitutions lacked legitimacy simply because they did not involve the public. Legitimacy, as discussed in chapter 4, is about the attitudes with which the people treat their government and rules it makes.
It is not particularly clear when this shift to popular constitution-making occurred. Scholars tend to mention it in passing only and they seem to suggest that it occurred in the late 1960s to early 1970s.570 According to Jennifer Widner, there were around 194 constitutions enacted between 1975 and 2003, many of which were enacted in (the conflict-prone) Africa.571 (For clarity’s sake, the 194 constitutions do not mean there was one constitution from each of the UN member states. The
565 Alicia L. Bannon, ‘Designing a Constitution-Drafting Process: lessons from Kenya’ (2007) 116 The Yale Law Journal 1824, 1843. 566 Sheila Smith, above n 543. 567 Ibid. 568 Vivien Hart, ‘Democratic Constitution Making’ (2003) United States Institute of Peace 1, 3. 569 Michelle Brandt et al, 10. 570 Ibid, 139. 571 Jennifer Widner, ‘Constitution Writing and Conflict Resolution’ (2005) 94 (381) The Round Table 503, 507. 99 statistic speaks to the fact that a number of countries, especially in Africa, have had more than one constitution.572 Also, Widner counted constitutional amendments as constituting new constitutions.573)
Some of these constitutions were products of achieving independence during the decolonisation (if de-imperialisation) period and others were a result of regime changes either through a military coup or by citizens’ agitations for democratic reform.574 These studies also report something important and that is the correlation between the representativeness of a drafting body and acceptability of the constitution.575 For example, in countries where the drafting body was popularly elected, there was little opposition to the constitution and the political stability improved substantially; whereas in countries where the process was executive-driven, the result was the opposite−strong opposition to the constitution and an increase in political instability.576
In a fairly similar experiment, studying constitution-making processes in the so-called Third World countries, including those that were brought about by Arab Spring, Todd Eisenstadt and others report something that reinforces Widner’s findings, particularly the first point that a constitution drafted by an elected assembly tends to enjoy considerable popular support. They found, inter alia, that direct citizen involvement in constitution-making not only leads to popular acceptance of the constitution; it also has the potential to promote democracy.577 Their hypothesis is that the more inclusive the process from the outset, accounting for what they call ‘origination sin’ (denial of citizens’ involvement in the process), the more likely the chances for democratisation in a constitution post-promulgation period.578
However, Eisenstadt et al’s conclusions are not watertight and, to their credit, they have been upfront about that. This is because a number of countries that had inclusive constitutional drafting processes did not democratise in the end, at least not in the manner they were expected. To name a few, these include Uganda (1995), Eritrea (1997), and, more recently, Egypt (2011−2014). Interestingly, in Uganda, in particular, representatives of any political party (politicians) were banned from participating in the drafting process save in their individual capacities as Ugandan
572 For example, Nigeria has had 9 constitutions since independence; the Democratic Republic of the Congo (DRC) has had 6 constitutions and the list goes on. 573 Jennifer Widner, above 550, 507. 574 Ibid. 575 Ibid, 511. 576 Ibid. 577 Todd A. Eisenstadt, A. Carl LeVan, and Tofigh Maboudi, ‘When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974−2011’ (2015) 109 (3) American Political Science Review 592, 593; Todd A. Eisenstadt, A. Carl LeVan, and Tofigh Maboudi, Constituents before Assembly Participation, Deliberation, and Representation in the Crafting of New Constitutions (Cambridge University Press, 1st ed, 2017) 33−40. 578 Ibid, 16. 100 citizens.579 The process was inclusive and the resulting document was acceptably democratic.580 This, however, did not make much difference in terms of consolidating democracy in Uganda. Uganda has backslid to authoritarianism − something President Yoweri Museveni (one of Africa’s longest-ruling dictators) has achieved through some overtly corrupt process. 581 For example, he has been accused of bribing Ugandan parliamentarians to support his constitutional amendments to remove both the term and age limits from the constitution, allowing him to rule for as long as he lives.582
Despite the imperfections in Eisenstadt et al’s findings, the finding are encouraging for the running theme of the thesis in this chapter: popular participation in the South Sudanese constitution- making is the most appropriate means to guarantee a democratic constitution for this deeply divided country. Popular participation is a broad concept as it can cover a range of enterprises within the political domain. A working understanding of it is necessary.
2. What is Popular Participation?
Although popular participation lies at the heart of the politics of modern constitution-making, there is yet to be a universally accepted definition of it. It may be understood here as a process by which citizens engage in constitution-making (and political affairs generally) with the aim of influencing the outcome.583 The engagement can take many forms, eg direct or indirect participation. Direct means citizens participate directly in the discussion of constitutional matters by giving their input or lobbying on particular issues of concern.584 The success of this form of participation, it is said, depends on how informed citizenry is and the willingness of the political elites to make the process inclusive. An informed and active citizenry, that is, an educated populace that takes its rights and responsibilities seriously, may demand a high level of involvement in the process.585
This may not be the case in South Sudan because a majority of its population is not educated. It does not mean the people cannot participate in the process, however. Civic education can be provided orally in local languages. As an example, many of the indigenous South Africans were not
579 Barak Saarti, ‘Participation—to Unveil a Myth’ in Tania Abbiate, Markus Bockenforde, and Veronica Feredrico (eds), Public Participation in African Constitutionalism (Routledge, 1st ed, 2018) 22. 580 J. F. Wapakhabulo, Uganda’s Experience in Constitution Making (15 September 2001) Kenyan Constitution Review Commission
Even though it remains questionable for its critics, popular participation is gaining traction increasingly internationally. As mentioned, it has been recognised under the International Bill of Rights as a collective legal right. This is a significant development in the history of constitution- making, strongly reinforcing the theme of this thesis.
3. Participation by Right
Given that this right is sourced in the International Bill of Rights, it is important to first appreciate the purposes for which these instruments were adopted. The concept of the International Bill of Rights refers to the three UN covenants: the Universal Declaration of Human Rights 1948, (UDHR),588 the International Covenant on Civil, and Political Rights (ICCPR),589 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).590
The UDHR was adopted in the post-World War II period and it recognised for the first time the need to protect and promote fundamental human rights. It has been described as the modern ‘New Testament’, or the ‘Magna Carta of humanity’.591 The ICCPR and ICESR and their protocols were adopted in the 1960s during which indigenous people around the world demanded their independence from Western imperial powers. That is why they are founded partly on self- determination and development in its various forms.592 The different types of rights enshrined in these instruments have been divided into three categories known as ‘Three Generations of Human Rights’.593 The late Karel Vasak, a Czech jurist, developed this theory. However, the theory has been widely criticised. One criticism is that, all things being equal, it creates an unnecessary
586 Mathew McKeever, ‘Educational Inequality in Apartheid South Africa’ (2017) 61 (1) American Behavioral Scientist 113, 119. 587 Michelle Brandt et al, 93—94. 588 UN GA res 217 A (III) (10 December 1948). 589 ICCPR. 590 ICESCR. They also include Optional Protocol to the International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which deal with how to resolve individual complaints brought under these covenants. 591 Eleanor Roosevelt, President of the United States of America, ‘On the Adoption of the Universal Declaration of Human Rights’ (Speech delivered at the United Nations General Assembly, Paris, France, 9 December 1948). 592 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res A/RES/1514(XV), UN GAOR 15th sess, 947th plen mtg, UN Doc A/RES/1514 (XV) (14 December 1960) art 2; ICCPR art 1; ICESCR art 1. 593 Karel Vasak, ‘Human Rights: A Thirty-Year Struggle: the Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’ (1977) UNESCO Courier 29—32. The first generation of rights are political in nature; the second generation of rights are economic, social and cultural; and the third generation of rights are collective. They are referred to sometimes as solidarity rights as they deal with issues like self-determination. 102 hierarchy of human rights or that such categorisation fails ‘to appreciate what is common to all human rights’.594 Further support for this view can be found in the Vienna Declaration and Programme Action, which treats all human rights as ‘…indivisible, interdependent, and interrelated’.595
Conversely, those in favour of this division argue that it is necessary as it enables governments to understand the broad spectrum of human rights and to develop specific legislations and policies to best fulfil each kind of right.596 The most forceful argument in this respect might be that of Jeremy Waldron: ‘…if one is really concerned to secure civil or political liberty for a person, that commitment should be accompanied by a further concern about the conditions of the person's life that make it possible for him to enjoy and exercise that liberty’.597
Popular participation in constitution-making comes within the first generation of human rights in the sense that it is a political right. It may also come within the third generation in the sense of being a collective right of citizens. That is, it is an aspect of the right to self-determination. One of the concerns here, however, may be the applicability of the ICCPR to South Sudan. As a convention, the ICCPR binds only state parties, unlike customary international law which binds all states regardless of their consent.598 South Sudan has not formally signed the ICCPR and incorporated it in its domestic law. However, as mentioned, articles of the ICCPR form the Bill of Rights provisions of the Transitional Constitution.599 On this account, it is difficult for the government of South Sudan to argue that it is not bound by the ICCPR. Indeed, it could be argued that the ICCPR has a de facto application to South Sudan.
The ICCPR not only obliges state parties to protect fundamental human rights, it also requires them to ensure free and equal participation in their national democratic processes. Article 25 of the ICCPR, for example, bestows these rights on citizens:-
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
594 Patrick Macklem, ‘Human Rights in International Law: Three Generations or One?’ (2015) 3 (1) London Review of International Law 61, 62. 595 Vienna Declaration and Programme Action, GA A/CONF.157/23 (12 July 1993) art 5. 596 Lindsey Reid, The Generations of Human Rights (14 January 2019) Institute of Human Rights
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
It is clear that these excerpts make no mention of popular participation in constitution-making. However, the phrase ‘[t]o take part in the conduct of public affairs’ has been interpreted broadly by the UNCHR to include popular participation in constitution-making. The UNCHR comprises 18 independent experts on human rights elected by state parties to a four-year term.600 Its principal task is to hear individual complaints (communications) arising under the ICCPR.601 It derives its authority from article 28 of the ICCPR. The Optional Protocol to the ICCPR provides the procedures to be followed in submitting communications to the UNCHR.602
The two decisions in which the UNCHR had arrived at this interpretation are Marshall v Canada603 and its General Comment No.25604 on article 25 of the ICCPR. As a non-judicial body, the UNCHR’s decisions are not binding on parties; however, they can be persuasive in getting a state party to refrain from acts that undermine or violate the convention. These decisions have relevance to this discussion given they clarify and affirm citizens’ rights to participate in political affairs of their nations, constitution-making being one such affair.
3.1 UNCHR’s Decisions on Popular Participation in Constitution-Making:
3.1.1 Marshall v Canada
Marshall v Canada was a communication the UNCHR received from the representatives of the Mikmaq tribal society (one of the traditional inhabitants of Canada). They claimed that the Canadian government excluded them from participating directly in a series of constitutional amendment conferences that took place between 1982 and 1991 in Canada.605 The exclusion, they submitted, ‘infringed their right to take part in the conduct of public affairs [and violated] article 25(a) of the [ICCPR]’.606 The Canadian government counter-argued that ‘the right of citizens to participate in the conduct of public affairs does not…require direct input into the duties and
600 United Nations Office of Human Right Commissioner, Human Rights Committee
The UNCHR held that constitutional conferences fall within the conduct of public affairs in which every citizen has a right to take part.611 However, it found that exclusion of the Mikmaq society’s representatives from constitutional conferences did not infringe that right.612 The issue, it explained, was neither about the existence, nor the denial of such right, but the modalities of participation.613 The committee concluded that ‘it cannot be the meaning of article 25(a) of the Covenant that every citizen may determine either to take part directly in the conduct of public affairs or to leave it to freely chosen representatives.614 It is for the legal and constitutional system of the State party to provide for the modalities of such participation’.615
There are two possible points to note about this decision. First, the decision seems to confirm that citizens’ right to participate in political affairs of their nations does exist under the ICCPR. Second, it seems to place a practical gloss on this right in that it leaves it to national institutions to determine the manner in which their citizens may participate in their political affairs.616 In view of both points, the outcome is neither a win nor a loss for the representatives of the Mikmaq society.617 The decision seemed to have been influenced by the prevailing practice in representative democracy, however.
The UNCHR provided a further interpretation of article 25 (a) of the ICCPR in its 1996 General Comment No.25. Again, General Comments have no binding force on state parties to the convention but they do serve as reminders to state parties of their convention obligations. They can be effective in getting a state party to take appropriate measures to ensure citizens exercise the freedoms and rights provided under the convention.
607 Ibid, para 4.1. 608 Ibid. 609 Ibid. 610 Ibid, para 5.2. 611 Ibid, para 5.3. 612 Ibid, para 6. 613 Ibid, para 5.5. 614 Ibid, para 5.4 615 Ibid. 616 Vivien Hart, ‘Democratic Constitution Making’ (2003) United States Institute of Peace 1, 6. 617 Ibid. 105
3.1.2 General Comment No.25 on article 25 (a) of the ICCPR
First, it is important to clarify what is meant by a General Comment in the context of international law. A General Comment is an interpretation of an article of an international treaty, especially one that mandates the protection of human rights.618 The aim of this interpretative work is to help guide state parties on how to best meet their treaty obligations.619
General Comment No.25 is one of a series of comments the UNCHR has provided in its effort to help state parties realise the rights provided by article 25 (a) of the ICCPR for their citizens. Whereas Marshall v Canada recognises the right to participate in public affairs but leaves it to the political elites to determine the manner in which it may be exercised, General Comment No.25 expands its scope slightly. It states:
Citizens [have the right to] participate directly in the conduct of public affairs when they choose or change their constitution…[T]he Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people.620
Critics of the UNCHR’s comments have taken issue with such expansive interpretations. They argue that the role of the UNCHR should be merely to explain the provisions of the ICCPR to help enhance state parties’ understanding of their obligations, not expand them. In Henry J. Steiner and Phillip Alston’s view, such interpretations ‘amount to a bold elaboration, an emphatic development of ideas in the Covenant itself, to legislation by the Committee’.621 For passionate advocates of participatory constitution making, such as James Tully, the interpretations are logical clarifications, or elaborations of the concrete meaning of the abstract right.622
It is more or less clear from the two comments that citizens have a general right to take part in constitution-making under international law. This gives needed impetus to the overarching theme of this thesis. Indeed, popular constitution-making in South Sudan can play an even greater role in the collective effort to build an enduring national unity for this highly polarised country. This is something a handful of political elites, people who do not even command popular legitimacy, can barely deliver. It demands an inclusive process and open dialogue.
618 UN Office of Human Right Commissioner, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (27 May 2008)
The challenge for South Sudan, however, is how participatory constitution-making could be realised, given mass illiteracy in the country. South Sudan scores one of the highest illiteracy rates in the world − a consequence of a protracted civil war. According to South Sudan’s National Bureau of Statistics (NBS), South Sudan has a disturbing 73% illiteracy rate.623 With an estimated population of just over 12 million people, that is roughly 9 million people unable to read and write.624 That figure, of course, includes children who may not count in terms of their participation in the constitution-making process. The remainder of this chapter looks at ways in which participatory constitution-making could be achieved in South Sudan in spite of its mass illiteracy. As mentioned, civic education is one possible way.
4. Civic Education: a Prerequisite for Popular Participation in the South Sudanese Constitution-Making
A point of departure here may be to define civic education. Like many terms in the field of constitution-making, civic education has no settled definition. It has been defined loosely as that which makes a citizen ‘useful’.625 Michelle Brandt et al have provided what might be the clearer and apposite definition: ‘“…civic education” in constitution-making process [is] any activity that helps prepare the public to participate, both before and after the constitution is prepared and adopted’.626
Civic education is part of what makes an informed and responsible citizenry. As mentioned, informed and responsible citizens are able to keep their government in check and possibly influence the political decision-making process. Jennifer Widner has perhaps put this point more forthrightly:
If citizens are engaged in the process through public consultation and civic education, they are more likely to know the rough parameters of accepted behavior under the new constitution, monitor the behavior of officials, and impede those who transgress. Where leaders are aware that citizens are better able to monitor boundary lines, they may be more likely to refrain from actions that transgress, anticipating that they will meet resistance. 627
To see civic education from a practical perspective, it is essential to do a comparative case-study. As explained, South Africa and Kenya represent good case-studies, partly because they share similar experiences with South Sudan in terms of overcoming racial divides and inequalities
623 South Sudan’s National Bureau of Statistics, Demographic Statistics (2019)
(addressing colonial legacies in South Africa), and partly because they had successful constitution- making processes. The aim here is to see what lessons may be drawn from these case-studies for South Sudan.
4.1 Case-Studies on Civic Education
4.1.1 South African constitution-making (1996)
South Africa embarked on the difficult task of democratic constitution building between 1993 and 1996 to heal and unite a deeply racially divided nation. The drafting process was laid out in the Interim Constitution of 1993,628 which was more or less a peace treaty between the political parties.629 The Interim Constitution stipulated the election of a bicameral Parliament (the National Assembly and the Senate) that served dual purposes: it acted as an ordinary legislature and as the Constitutional Assembly tasked with drafting the permanent constitution.630 Importantly, the Interim Constitution provided some guidelines, known as Constitutional Principles, to which the permanent constitution was required to conform.631
The Constitutional Assembly embarked on drafting South Africa’s permanent constitution immediately after it was elected. (This was South Africa’s first open democratic election since the beginning of the apartheid era in 1948). One of its top priorities in undertaking the drafting process was popular engagement. To meet this challenge, the Constitutional Assembly divided itself up into different departments, one of which was the community liaison department, which was responsible for planning and undertaking popular engagement. It came up with slogans, ‘It’s your right to decide your constitutional rights’ and ‘You have made your mark, now have your say’, advertised in public places and on buses to capture public attention.632
The community liaison department worked cooperatively with the media department in educating the South African public. The aim was to reach as many people as possible.633 Civic education workshops and open constitutional meetings were held in each of the constituencies.634 In addition, ‘posters, brochures, leaflets, a biweekly constitutional newsletter called “Constitutional Talk”, booklets such as “You and Building the New Constitution,” comic books, official website’,
628 South Africa’s Interim Constitution 1993 (SA). 629 South African History Online, A history of the South African Constitution 1910-1996 (21 March 2011)
As a result of this wider popular consultation, the Constitutional Assembly received two million submissions from individuals, advocacy groups, professional associations, etc.638 It is not clear whether the Constitutional Assembly analysed all of these submissions and incorporated them in the final constitution. Regardless, four and a half million copies of the draft constitution and 12 million copies of the final constitution were sent for free to the members of South African public by mail and other means.639
As per the Interim Constitution, the South African Constitutional Court had to review the final version of the permanent constitution before it could be signed into law and promulgated.640 However, a deadlock arose in the Constitutional Assembly over a Bill of Rights provision regarding labour rights (employees’ right to strike and the employers’ right to exclude workers from the workplace) that had to be determined by the Court.641 The National Party (the then main opposition party) argued that the Constitutional Principle XXVIII provided the employers with the right to engage in collective bargaining but the ANC disputed that.642
The Court found this provision to have not complied with the Constitutional Principles.643 It interpreted Constitutional Principle XXVIII as not providing a constitutionally protected employers’ right to lockout.644 It set out in a lengthy judgment the changes that had to be made in order for the constitution to comply with the Constitutional Principles, reinforcing a process conducted under the rule of law.645 Running out of time, the Constitutional Assembly reconvened quickly and revised the constitution and resubmitted it to the Court.646 The Court was satisfied with the revised version
635 Ibid. 636Christina Murray, above 611, 816—817. 637 Ibid. 638 Vivien Hart, Democratic Constitution Making’ (2003) United States Institute of Peace 1, 8. 639 Michelle Brandt et al, 92. 640 Interim Constitution 1993 section 71 (1) and (2). 641 Certification of the Constitution of the Republic of South Africa1996 (Constitutional Court), para [66]. 642 Ibid. 643 Ibid, para [482] 644 Ibid. 645 Ibid, paras [482—483]. 646 Christina Murray, 835. 109 and certified it on 4 December 1996.647 President Nelson Mandela then signed it into law on 10 December 1996, taking effect on 4 February 1997.648
The South African Constitution is regarded as a model on the continent.649 This owes much to its democratic nature, which is a product of its inclusive drafting process. The South Africans now ‘boast’ about their Constitution as ‘the most progressive in the world’.650 That claim is not far from the truth. The South African Constitution has inspired some African nations. Kenya, whose Constitution is regarded as the second best on the continent, is one example.651 Kenya has had tumultuous periods, ranging from ridding itself of an authoritarian government to overcoming ethnic strife. These issues were addressed through constitutional reforms, which, in large part, were initiated by citizens.652 These constitutional reforms have seen relatively successful political change in Kenya.653 Like the South African constitution-making process, the Kenyan constitutional reform process may have much to offer for South Sudan.
4.1.2 Kenyan constitution-making process (2005−2010)
Like South Africa, Kenya has had a difficult past. Shortly after Kenya won independence from Britain in 1963, President Jomo Kenyatta (Kenya’s founding father) embarked on radical changes that sought to centralise state power in his person, reflecting similar developments in many post- imperial African countries.654 These changes were carried out through a series of amendments to the independence constitution. The most notable of these was the Constitution of Kenya (Amendment) Act No. 28 of 1964, which abolished the office of Prime Minister and the federal system, and curtailed fundamental freedoms.655
These changes helped ensured President Kenyatta’s grip on power until he died in 1978. His successor, President Daniel Arap Moi who died recently, followed very much his footsteps. He pursued even more draconian reforms that banned opposition parties in Kenya and established the country as a one-party system.656 This decision was, however, reversed almost immediately due to
647 Certification of the Amended Text of the Constitution of the Republic of South Africa [1996] ZACC 24, paras [204— 205]. 648 Christina Murray, 837. 649 Vivien Hart, above n 617, 7. 650 Christina Murray, 812. 651 Stephen Ndegwa et al, History of Constitution Making in Kenya (Media Development Association, 1st ed, 2012) 73. 652 Anders SJorgen, ‘Constitutional Reform in Kenya: Towards a New Order?’ (2010) Annual Report 18−19. 653 Ibid. 654 Godwin R. Murunga, Duncan Okello, and Anders Sjögren, Kenya: The Struggle for a New Constitutional Order (Zed Books, 2014) 3. 655 Constitution of Kenya (Amendment) Act No.28, 1964 (Kenya) section 8. 656 Jill Cottrell and Yash Ghai, ‘Constitution Making and Democratization in Kenya (2000—2005)’ (2007) 14 (1) Democratization 2—3. 110 immense international pressure.657 Yet, this hardly provided an open and competitive political environment for opposition parties, as far as elections were concerned. President Moi continued to use the state’s resources and security apparatus to control power.658 Every election held in Kenya between 1978 and 2002 (when he finally stepped down) was challenged as rigged.659
President Moi’s authoritarian rule gave Kenyans the resolve to agitate for constitutional reforms. This movement for change, led by civil society organisations, religious groups, and opposition parties, intensified in the early 2000s.660 No longer able to resist the pressure, the incumbent party, Kenya African National Union (KANU), finally agreed to enter talks with an alliance of opposition parties to review the constitution.661 With Yash Ghai’s (a constitutional expert) assisting role, the parties were able to reach a compromise.662 Many reform agendas, including a roadmap to the constitutional review process, were agreed upon. This roadmap was provided in the Constitution of Kenya Review Act 2001 (Review Act).
The Review Act was geared toward achieving an inclusive constitutional review process. It mandated that the Kenyans be given an opportunity to ‘actively, freely and meaningfully participate in generating and debating proposals to alter the constitution’ and that the ‘final outcome of the review process faithfully reflects’ their wishes.663 The Review Act created a three-step process: (1) the Kenyan Constitution Review Commission (KCRC) to carry out an inclusive drafting process; (2) the National Constitutional Conference (NCC) to debate and revise the draft constitution; and (3) the National Assembly (ordinary Parliament) to approve or reject the draft constitution.664 The Court, however, added a constitutional referendum as the final step.665
In its civic education efforts, the KCRC generated some materials, such as booklets containing some of the critical constitutional issues for public consideration; all of which were translated into Kiswahili, the most commonly spoken local language in Kenya.666 The Commissioners conducted
657 Melizsa Mugyenyi, ‘Kenya’s Constitutional Moment: Designing a New Constitutional Order Post 2007−8 Election Crisis’ (2012) Loyola University 1, 4. 658 Ibid. 659 Ibid. 660 Jill Cottrell and Yash Ghai, above n 635, 5. 661 Ibid. 662 Ibid. 663 Review Act section 5 (c) (i) and (d). 664 Jill Cottrell and Yash Ghai, 7−8. 665 Alicia L. Bannon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) 116 (8) The Yale Law Review 1824, 1838. 666 Jill Cottrell and Yash Ghai, 10. 111 hearings in each of the 210 constituencies in Kenya.667 Non-governmental organisations (NGOs) also gave their generous support to help facilitate a nationwide education programme.668
Civic education was successful in encouraging Kenyans to partake in the process. The KCRC received over 37,000 submissions from professional associations, businesses, groups, individuals, etc.669 The KCRC carefully analysed these submissions using ‘a software program for computation and analysis of views’.670 The degree to which these views were incorporated in the constitution is unclear but there seems to be a consensus that the constitution faithfully reflected popular views.671
With the first step passed, the next step was the NCC to debate the draft constitution. There were 629 delegates to the NCC, representing different groups.672 The delegates managed to pass the draft constitution, a decision reached after 3 weeks of highly contentious debate.673 The draft constitution, known as Bomas draft because it was drafted in a Bomas theatre facility, was then submitted to the National Assembly for approval before public ratification.674 However, the government was unhappy with it−it did not like the parliamentary system proposed in it as it limited executive power.675 This, presumably on the instruction of the executive, prompted the National Assembly to rush a bill through Parliament that allowed the government to introduce new changes in the constitution, giving the executive excessive power.676 The revised constitution was submitted to the public in a referendum on 21 November 2005 but it was rejected.677 No doubt this rejection was a response to the subversion of the more accountable system the KCRC had proposed.
The rejection of the constitution dealt a blow to the government, leaving it to do some serious soul-searching. This process took about 3 years. Various interest groups made alternative proposals during that period, none of which seemed acceptable.678 The government announced a new constitutional reform process in 2006, however Kenya plunged into ethnic conflict before the process could kick-start.679 The conflict resulted from the 2008 election disputes,680 although
667 Stephen Ndegwa et al, above n 630, 24. 668 The final Report of Kenya Constitution Review Commission (2005) 158; Yash Ghai et al, Constitution-making and Reform: Options for the Process (2011) 340. 669 Jill Cottrell and Yash Ghai, 9. 670 Ibid, 10. 671 Ibid, 11. 672 The final Report of Kenya Constitution Review Commission (2005) 578. 673 Jill Cottrell and Yash Ghai, 16. 674 Ibid. 675 Ibid. 676 Mwangi S. Kimenyi and William F. Shugart, ‘The Political Economy of Constitutional Choice: A Study of the 2005 Kenyan Constitutional Referendum’ (2008) University of Connecticut 1, 2. 677 Bard Andreassen and Arne Tostenssen, ‘Of Oranges and Bananas: The 2005 Kenya Referendum of the Constitution’ (2006) Chr. Michelsen Institute 5
5. Lessons from the Case-Studies
There are a few lessons to be drawn from these two case-studies in terms of what worked, the specific issues that arose during the drafting processes, and how they were resolved. First, while there are people who remain sceptical about the impact of popular engagement on constitution- making,686 the case-studies seem to paint a different picture. They seem to suggest that popular engagement was influential in the final outcomes in South Africa and in Kenya. In South Africa, for example, popular engagement helped sensitised the South Africans to take their democratic rights more seriously in having a say in the constitutional drafting process. This is evident by the millions of submissions the Constitutional Assembly received from the public; all of which were given due consideration.687 South Africa may not be fully united today but open conversation during the 1996 constitutional drafting process helped break down centuries-long racial barriers among civilians and created trust.688
It is true that the constitutional Guiding Principles were critical in getting the drafters to stay on course. However, the success of the process, overall, owed to the design. The design took account
680 Jennifer Cooke, Background on the Post-election Crisis in Kenya (6 August 2009) Centre for Strategic & International Studies
In comparison, the same can hardly be said about the SPLM. While the SPLM was relatively popular in the pre-independence period, it seems to have lost that in the post-independence period (albeit opinions may be divided on this as there have not been any opinion polls conducted in South Sudan to test popular support for the SPLM). The ongoing civil war is one factor responsible for the SPLM’s lost popularity. Indeed, the SPLM is no longer seen as legitimately representative of the country as a whole and it is unlikely to pull the country together. That is why an inclusive approach to resolving the conflict, be it negotiating a peace agreement or writing a new constitution, is absolutely vital. Chapter 7 of the thesis looks at the reforms the SPLM should undertake in order to reassert itself in the country as a credible and legitimate government.
Second, the Kenyan constitution-making process produced mixed results. Like in South Africa, civic education was effective in encouraging Kenyans to be part of the process in terms of their input and understanding the issues at stake. The process provided an opportunity for Kenyans to start a new beginning after almost three decades of President Moi’s oppressive rule and widespread corruption that stifled development in Kenya. The enthusiasm of Kenyans to be part of a new way of doing politics is reflected in the level of popular involvement in the process, particularly the tens of thousands of submissions the KCRC received from the public.
Although the will of the Kenyans prevailed in the end, two issues plagued the process. The first issue was ethnic cleavages. The constitutional drafting process exacerbated existing ethnic tensions. To make matters worse, rival groups capitalised on this issue by using their supporters to push for their own agendas in the draft constitution: President Kibaki wanted a strong executive president and the opposition leader wanted an equally powerful executive prime minister.692 With the benefit
689 Ibid, 7. 690 See African National Congress, A Brief History of the ANC (2001)
The power struggle between President Kibaki and leader Raila Odinga was resolved in the 2010 Constitution in which the post of prime minister was abolished.695 It costed lives, however. This goes to show how strongly ideologically opposed positions or personality can be politically destructive, especially when opponents command enormous political influence. Comparatively, this is the case with President Kiir and Dr Riek. They both enjoy a high level of support from their respective ethnic nationalities (Jieeng (Dinka) and Nuer respectively). This tactic of appealing to one’s ethnic group serves to deepen division and it has to be avoided by all means. One way to do this is to give all ethnic groups the same level of participation in the political process, especially in the upcoming constitutional drafting process. This would potentially create trust among ethnic communities, promote national unity insofar as it would help mitigate ethnic tensions, and produce a legitimate democratic outcome.
The second issue that arose during the Kenyan constitutional drafting process was elite capture of the process. While the process was relatively well-designed and inclusive, there were no effective measures put in place under the Review Act to prevent the risk of elite capture. As a result, the Kenyan government, knowing that the draft constitution limited its power in significant ways, altered the draft constitution through a bill rushed through Parliament that allowed it to put forward its own version for the referendum.696 This was a serious issue, and one that is likely to present itself in the South Sudanese constitutional drafting process. To counter this issue in South Sudan, proactive measures, aimed at putting limits on political elites’ involvement in the process, need to be put in place. The measures may just mean tightening up the provisions of the Transitional Constitution that govern the drafting process. Part of tightening up the rules may mean stripping Parliament of its reserved right to have the final say on the constitution, thus eliminating the possibility for politicians to unduly alter a draft permanent constitution.
693 Lucas Barasa, Chiefs Pay Doubled as Draft Row Rages (9 November 2005) Daily Nation
Some scholars have suggested that elite capture of the process may be avoided by negotiating a constitution behind a ‘veil of ignorance’,697 ‘where there is uncertainty about whether [the drafters] will be advantaged or disadvantaged by the resulting design’.698 One way to do this is to ban all ‘drafters from seeking political office within five years’ after the constitution has come into effect.699 This would make it unlikely for drafters to seek immediate gains from the constitution, providing a possibility for a broad range of interests to be duly considered.700 This proposition remains untested; however, the South Sudanese constitutional drafters ought to be open to all options.
In addition, civic education and popular veto of a constitution can also serve as a check on elite capture. The Kenyans, for example, saw through the tricks their government played in altering the 2005 constitution and rejected it in a referendum. This sense of collective responsibility to defend the constitutional process and hold the government to account may not have been possible had there not been prior civic education to sensitise the people. A Kenyan commentator has aptly captured this act of an informed citizenry in a report: ‘[t]his society is democratising quietly but in very fundamental ways… They will accept your money and relief food [referring to the alleged voter bribery] but vote with their conscience’.701
It is clear that there are huge disparities between Kenya and South Sudan in terms of education, Kenya having one of the highest literacy rates in Africa702, and, indeed, has a history of electoral politics, albeit one marred by electoral frauds.703 South Sudan has a long way to go in that regard. If educated through civic education programs, however, the South Sudanese could be in a position to guard their constitution-making process against elite capture.
Finally, the case-studies represent cases of successful constitution-making processes, even though each process had to overcome its own shortcomings. As shown in this analysis, they have much to offer to countries that are yet to embark on building a new national identity. The case- studies are also consistent with the emerging trend in international law which places popular participation at the centre of constitution-making process. This trend is reflected in the UNCHR’s
697 Dennis C. Mueller, ‘On Writing a Constitution’, in Ram Mudambi, Pietro Navarra, and Giuseppe Sobbrio (eds), Rules and Reason: Perspective on Constitutional Political Economy (Cambridge University Press, 1st ed, 2001) 9. John Rawls first popularised ‘veil of ignorance’ in his book, Theory of Justice, first published in 1971. See also, Jonathan Crowe, Legal Theory (Thomson Reuters, 2nd ed, 2014) 196—201. 698 Alicia Bannon, 1863. 699 Ibid. 700 Jennifer Widner, ‘Constitution Writing and Conflict Resolution’ (2005) 94 (381) The Round Table 503, 510. 701 Jaindi Kesiro, Vital Lessons from the Orange Win (23 November 2005) Daily Nation
Presenting these two case-studies (and hence drawing important lessons from them), however, does not presume limit as to the number of countries the South Sudanese constitutional drafters may consult. There are plenty of countries with comparable experiences in the literature.704 The discussion is limited to these two countries due to their experiential relevance to South Sudan and space constraints. An important question that arises in this search for a legitimate constitutional drafting process is what particular power-sharing arrangement would ensure an effective balance of power between South Sudan’s two levels of government (the national government and state governments)? Federalism, which is the focus of the next chapter, has been suggested as a possible power-sharing arrangement for South Sudan.
Chapter 6 — Federalism: Securing Greater Regional Autonomy in South Sudan?
No, my friend, the way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the functions he is competent to do. Let the national government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administrations of what concerns the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself, by placing under everyone what his own eye may super-intend, that all will be done for the best… 705
The last three chapters have focused predominantly on the issues of power concentration in the Transitional Constitution of South Sudan and design of the forthcoming permanent constitution- making process. The general conclusion from these discussions is that, in considering SPLM’s manipulation of the 2011 constitutional drafting process and general anxiety in the country about
704 Another country that may be recommended here is Australia whose successful constitutional drafting process has been discussed briefly. Australia differs from South Sudan in a number of ways, most notably its Westminster system of government (parliamentary democracy) and ‘disintegrative’ federalism. However, Australia’s constitutional drafting process, particularly how popular election of the drafters and constitutional referendum were conducted may be worth looking at. Also, in considering how presidential system has failed South Sudan, resulting in personalist rule (a discussed in Chapters 3 and 4 of this thesis), parliamentary system should be considered as an alternative. Arguably, it would suit South Sudan’s racially diverse society, let alone reducing concentration of power in one person. Of course, parliamentary systems have their own downsides, such being unstable sometimes. However, it could deliver a more workable political system for South Sudan than the current presidential system. This is in terms of being a more politically inclusive system and how it curbs power more effectively.
705 Thomas Jefferson, [Letter] on Good and Safe Government, to Joseph C. Cabell, 12 February 1816 (20 March 2011) The Federalist Papers
The chapter is divided into two main parts. The first part looks at the current debate in South Sudan around federalism. Two principal issues present themselves for consideration. The first is the origin of this federal debate, undertaken as a historical study. The aim is to ascertain how much influence, if any, the historical events (events that led that to the call for federalism in Sudan in the early 1950s) have on the current debate in the country. The term ‘historical’ is employed deliberately here to account for the fact that the matter predates South Sudan’s existence as a sovereign country.
The second issue is the competing federal arguments in South Sudan. Essentially, the matter, controversial (and sensitive) as it is, has divided South Sudan’s political elites into two camps, which, for want of better terms, are referred to as federalism proponents and opponents. Opposition movements lead the proponent camp, whereas the government (SPLM) leads the opponent camp. To date, neither of the camps has articulated its argument persuasively. Put directly, neither camp has provided clear reasons for or against federalism. This provides an opportunity for this thesis to fill the gap by conceptualising the purpose federalism might serve for South Sudan. One of the conceptual arguments the thesis makes is the need for greater regional autonomy in the country−something the state governments need desperately at present. Regional autonomy, effectively entrenched in a national constitution, should afford the state governments the political independence they ought to have. This would likely restrain the national government in Juba from interfering in the state governments’ exclusive political affairs.
The second part looks at the conceptual meaning of federalism and its two underlying theses of sociological theory and origin theory, as well as ethnic federalism and dual federalism. Having some understanding of these features of federalism is arguably the first step in engaging objectively and constructively in the federal debate in South Sudan. The significance of the two theories, albeit they are not the only theories on federalism, is their attempt to explain why federalism emerged as the most preferred political arrangement in some culturally and linguistically diverse societies. The general expectation here is that these theories may help illuminate the South Sudanese seeming
118 craze for federalism. The discussion on ethnic federalism and dual federalism is relevant to the question of what form of federalism might be suitable for South Sudan.
1. Current Debate in South Sudan around Federalism
It is often said that independence is not an end itself but a means to an end. Nowhere is this truer than in South Sudan. The long-awaited independence, indeed, the momentous event in the South Sudanese political history, has come with many difficult challenges for the nascent state. Atop these challenges is devising a workable political system, one that reflects popular wishes. This issue has sparked an intense debate in the country, prompting some people to propose federalism as their preferred political arrangement. However, the idea has been divisive, creating two camps: proponents and opponents. This section of the chapter explores this debate. It does so by first tracing the origin of the debate and then analysing the merits of each of the opposing arguments.
1.1 Origin of federal debate in South Sudan: a historical account
The call for federalism in South Sudan has a long history. It dates back to the epoch of the Condominium rule in Sudan (1899−1956), hence predating the two Sudans in terms of their coming into being as independent countries.706 During the Condominium, the British governed Southern Sudan separately under its Southern Policy, reportedly for two chief reasons. One, Southern Sudan was severely underdeveloped (still is) and vulnerable to economic exploitation by the Arab north.707 Second, because of Southern Sudanese’ link to East Africa, both racially and geographically, the British wanted Southern Sudan to develop ‘along African lines’708, although Southern Policy which was intended partly as a development strategy failed to deliver that.
In the late 1940s to early 1950s, things began to take a new turn in Sudan. The British imperial administration began to falter, a consequence of its then crumbling empire around the world and northern Sudanese demand for self-determination, ‘a code word for independence’.709 The All
706 British and Egyptian (Anglo-Egyptian) joint imperial administration over Sudan that lasted for virtually 60 years. This joint administration was effectuated by Agreement between Her Britannic Majesty’s Government and the Government of His Highness the Khedive of Egypt, Relative to the Future Administration of Soudan of 19th January 1899. To access this document, see Winston S. Churchill, The River War: An Account of the Reconquest of the Sudan (1902) Appendix.
Parties Agreement710 signed in 1953 to effectuate a new Anglo-Egyptian administration over Sudan rendered Britain’s position even weaker. Egypt, backed by northern Sudan’s political parties, laid down two conditions for which it would agree to a new Anglo-Egyptian treaty: (a) that the British governor-general’s powers over Southern Sudan and civil service be dropped; and (b) that the Sudanese chose between entering a union with Egypt or having their own independent country.711 Popular opinion of the Sudanese was in favour of the latter and this gave northern political parties a reason to unite and pursue self-determination.712
The demand for self-determination left the Southern Sudanese to wonder seriously about what their political future would look like in what would-be a predominantly Arab led Sudan.713 Abdel Rahman Sule, a Southern Sudanese politician who co-founded the Liberal Party (Southern Sudan’s first political party) in 1953, is generally identified as having led the way in this thinking. He wrote a letter to the British governor-general of Sudan in 1954, asking for federation between south and north, failing that for the British foreign office to administer Southern Sudan under a United Nations (UN) Trusteeship until it had developed the capacity to take charge of its own affairs. The letter states:
No one in the South would like at the moment to see this…Egyptian proposals carried out. We in the South are still undeveloped economically, socially and politically. If the Egyptian proposals to deprive us of our safeguards vested in the Governor-General is … accepted, we ask Your Excellency that there will be no any other way for us except to ask for federation with the North. Failing to federate, we shall ask as alternative for the appointment of a High Commissioner from the British Foreign Office to Administer the South under the Trusteeship of the United Nations till such time as we shall be able to decide our own future.714
This gesture inspired prominent Southern Sudanese leaders to hold their first ever conference in 1954 in Juba.715 Two motions were passed during the conference: (a) supporting independence of Sudan (as opposed to union with Egypt which some northern politicians were in favour of); (b) endorsing federalism officially and unequivocally as a means to guarantee the Southern Sudanese’ political future in Sudan and to maintain their identity in anticipation of a total Arabisation and Islamisation of the country.716
710 This new agreement was adopted because Egypt lost its co-rule of Sudan after a military General took power in Egypt in 1952. 711 Douglas Johnson, above n 688, 8; Rayford W. Logan, ‘The Anglo-Egyptian Sudan: a Problem in International Relations’ (1931) 16 (4) Journal of Negro History 371, 373. 712 Ibid. 713 Douglas Johnson, 10. 714 Abdel Rahman Sule, Letter to the Governor-General, 20 May 1954, as cited in Douglas H. Johnson, ‘(Research Paper No 1, Rift Valley Institute, 2014) 10. See also Justin Willis, ‘The Southern Problem: Representing Sudan’s Southern Provinces to C.1970’ (2015) 56 (2) Journal of African History 1, 9. 715 These leaders included Benjamin Lwoki, Abdel Rahman Sule, Buth Diu, Paulo Logali Wani, and Stanislaus Paysama. 716 Douglas Johnson, 12. 120
The unanimous decision from the conference in favour of federalism was submitted in a letter to various key figures, among them foreign ministers of Britain and Egypt, British governor-general of Sudan, and prime minister of Sudan. The letter declared that the country had only two options to consider ex-post:
(1) Either Authonomy [sic] in the South and Authonomy [sic] in the North under Federation, or if that is not acceptable to the Northerners. (2) A devided [sic] Sudan each ruling itself independent of each other... As the South went into Parliament on [its] own will so it can choose to walk out of [it] …We must determine […] the future of the South in the way we think suits us or our aims.717
The letter seemed to have not received any recorded response from any of the named officials. Meanwhile, the northern Sudanese pushed on with their demand for independence. To speed-up the process, the Sudanese parliament voted unilaterally for independence in 1955 even though it had no power to do so under the Condominium administration.718 (Unilateral declarations of independence are hardly recognised by the international community as the international community generally tends to favour the existing state, the aim being to preserve state sovereignty and territorial integrity. However, this move would have been consistent with the UN’s overarching objectives, which include ‘respect for the principle of…self-determination…’719 This principle was strengthened in the 1960s when the UN General Assembly adopted a resolution to end ‘colonialism’ in the world (imperialism in the majority of cases)).720
The intention of the Sudanese parliament was to force Britain to cede independence to Sudan. The few Southern Sudanese parliamentarians supported independence on the ‘vague’ promise by the northern political parties that a sovereign Sudanese parliament would give federalism some consideration.721 Britain was reluctant to cede independence, but the August 1955 mutiny by Southern soldiers and police against Arab-dominated military brought more pressure to bear on Britain. This made it easier for Britain to relinquish its sovereignty over Sudan, an easy way to shun responsibility to deal with the rebellion.722 Independence was declared officially on 1st January 1956 and Sudan joined the first few African countries to achieve independence.723
717 Benjamin Lwoki, Letter to Foreign Secretary, 15 November 1954 cited in Douglas Johnson, 12. 718 W. H. Luce, Letter to T. E. Bromley, stating why self-determination was necessary, (1 December 1955, NA FO 371/113585, no. 104) as cited in Johnson, 14. 719 Charter of the United Nations art 1 (2). 720 Declaration on the Granting of Independence to Colonial Countries and Peoples (UN General Assembly Resolution 1514, 14 December 1960). 721 Douglas Johnson, 14. 722 Ibid. 723 Anders Breidlid, A Concise History of South Sudan (Fountain Publishers, 2nd ed, 2014) 193−195. 121
‘True to its words’, Sudanese parliament did consider the possibility of adopting federalism in the post-independence period (in 1957), but it rejected it.724 The Arab political class regarded federalism simply as a pretext for secession and discussions about it were categorically deemed acts of subversion.725 The situation was exacerbated when General Ibrahim Abboud seized power in Sudan in 1958 and put an end to parliamentary politics.726 These policies of domination inevitably plunged Sudan into intermittent civil wars starting in the 1960s, albeit, as discussed in Chapter 2, some trace the beginning of the first civil war (Anya-nya I) to August 1955.727
Various rebel movements emerged in Southern Sudan between the 1960s and 1990s fighting against Arab north as a common enemy.728 Federalism Sudan continued to figure in various peace talks between these rebel movements and government of Sudan; however it became an unviable option for the Southern Sudanese in the end, especially for the SPLM which emerged in the 1980s.729 Self-determination emerged as the most preferred option for many Southern Sudanese leading figures. This was one of the many principles upon which the CPA was founded, giving the South Sudanese the right to self-determine. As the South Sudanese turned their attention to their internal politics in their new country, demand for federalism has resurfaced. As mentioned, it has been a subject of contention for the South Sudanese. A close look at the debate might shed light on this contention.
1.2 Competing arguments around federalism: a case of proponents versus opponents
Discussions about federalism within South Sudan started a few weeks prior to the declaration of independence in 2011. These discussions have been led primarily by Equatorians, the southern South Sudanese.730 For example, between 2011 and 2014, Equatorians, led by their political leaders and academics, held 3 conferences in which they strongly stressed the urgency for South Sudan to adopt federalism.731 Numerous resolutions were passed during the 2011 conference on different issues. On federalism, the following were resolved:
724 Douglas Johnson, 13. 725 Ibid. 726Scopas S. Poggo, ‘General Ibrahim Abboud’s Military Administration in the Sudan, 1958–1964: Implementation of the Programs of Islamization and Arabization in the Southern Sudan’ (2002) 9 (1) Northeast African Studies 67, 71−72. 727 Oystein H. Ronaldsen, ‘A False Start: Between War and Peace in Southern Sudan, 1956−62’ (2011) 52 (1) The Journal of African History 105, 105. 728 These include Sudan African Union (SANU), South Sudan Liberation Movement (SSLM, and Sudan People’s Liberation Movement/Army (SPLM/A) to mention just a few. 729 Douglas Johnson, 22. 730 As discussed in the introduction to this thesis, Equatoria is one of the 3 regions into which Southern Sudan was divided in the pre independence period. The other two are Bar el Ghazal and Upper Nile. 731 Mareike Schomerus and Lovise Aalen (eds) ‘Considering the State: Perspectives on South Sudan’s Subdivision and Federalism Debate’ (Report, Chr. Michelsen Institute, 2016) 11. 122
(1) A democratic federal system of governance should be adopted for the Republic of South Sudan, therefore the establishment of the new country as the Federal Republic of South Sudan. (2) There should be equitable sharing of power at various levels of government, which includes [sic] the executive, legislative, judicial organs of the government that represents all of our national interests, political parties, gender equality and equitable distribution of public resources.732
The first resolution is merely declaratory rather than explanatory. The second resolution, although somewhat vague, offers a justification for federalism in the context of the power imbalance between the national and state governments effectuated in the Transitional Constitution. The Equatorians are not alone in their call to adopt federalism in South Sudan. Other South Sudanese have joined the march and offered their own justifications for federalism. One justification is that federalism may help South Sudan ‘to properly manage regional and ethnic diversity and promote self-governance, all to engender sustainable peace and development in the country’.733
The idea gained great momentum in the country after Dr Riek made it one of his commitments and strategies for resolving the current conflict in South Sudan. The SPLM-IO officially endorsed federalism during its two conventions held in 2014 in Nasir and Pagak respectively.734 In his speech during the Pagak conference, Dr Riek laid out a rather superficial vision for transforming and modernising South Sudan. Nevertheless, federalism was high on the list of his political agendas. The speech states, in part, ‘…our political program shall entail the following’:
The [SPLM-IO] calls for the institution of federal system of governance in which the states and the local governments shall be devolved more political, judicial and economic powers. We have renamed our country the Federal Republic of South Sudan and immediately establish 21 states based on the former districts during the colonial period instead of ten states…735
Dr Riek then went on and made federalism one of the many conditions for signing a peace agreement with the government of South Sudan. The government was initially opposed to federalism. However, as more pressure came to bear on it to bring peace to the country as a matter of urgency, it capitulated. This saw federalism included in the ARCSS (later renamed the R-
732 The Equatoria Conference 2011: Justice, Unity, and Prosperity (7 May 2011) Gurtong
ARCSS) as one of its founding principles.736 As discussed in Chapter 2, the R-ARCSS, which is in the early stage of its implementation, proposes a permanent constitution that establishes ‘a federal and democratic system of government’ for South Sudan.737
In summary, the Equatorians and rebels have been the leading voices for federalism in South Sudan. They are referred to collectively here as proponents of federalism, although they are not quite united. Their demand for federalism seems to be driven largely by the deficiencies in the Transitional Constitution, particularly limited political and economic powers devolved to the regional governments. The Transitional Constitution, read together with the R-ARCSS as incorporated, recognise federalism as a foundational value for the country.
Opponents of federalism, on the other hand, have mainly come from within the government and its supporters. Their main argument seems to dwell merely on the fear that federalism would lead to a ‘dismemberment of the country’.738 (Ironically, the government continues to hold this position despite having signed a peace agreement that unequivocally endorses federalism for the country). In supporting their argument, opponents quickly cite an incident that occurred in Southern Sudan in the early 1980s, known as Kokora. Kokora is a word in Bari language (Bari is one of South Sudan’s multiple ethnic nationalities) and it is translated loosely in English to mean either to ‘share something’ or ‘divide something into different parts’.739 It was brought about by two principal issues: Jieeng domination (real or perceived) of the then Southern Sudan’s semi-autonomous government created under the 1972 Addis Ababa Agreement and the division of Southern Sudan into three regions − Bar el Ghazal, Equatoria, and Upper Nile − a deliberate attempt by Sudan’s Islamist military regime to weaken southern unity.740
The Equatorians, who felt discriminated against by a Jieeng led government, took the division seriously and expelled people of non-Equatorian background, mostly Jieeng, from Equatoria where the seat of the Southern Sudanese regional government was based. They seemed to have interpreted the division to mean each region governed itself or worse, a kind of regional separatism or nationalism whereby if you did not belong in a given region, in this case, Equatoria, you were not entitled to work or live there.741
736 Agreement on the Resolution of the Conflict in the Republic of South Sudan signed between the Government of South Sudan and various rebel movements 2015. 737 R-ARCSS, Ch VI art 6.2.2. 738 Abraham Awolich, above 712, 3. 739 Rens Willems and David Deng, ‘The legacy of Kokora in South Sudan’ (Briefing Paper, Upeace Centre The Hague, 2015) 10. 740 Ibid. 741 Ibid. 124
Although there had been no deaths reported, there certainly were violent confrontations.742 Non- Equatorians were forced to leave Equatoria on short notice. That may have meant the loss of jobs, properties etc. Rens Willems and David Deng have recently conducted a study on the Kokora incident, part of which drew on the experiences of those who went through it. One of the people interviewed gave these reflective accounts:
[It was a] very harsh implementation. People were chased out of [their] homes, and imagine that was about June and July, rains were falling. So this is my experience of the Kokora because I was in it. I had to leave because even my employees were not looking at me, in a friendly way. And some of the workers whom I left in Mangala, […] they were actually removed physically by people of the area.743
“A certain man from…Bahr el Ghazal came here in the 1950s and married a woman from the Bari tribe. Now, when the declaration for decentralization of the region came out, his agricultural file was [hidden] by the people of Equatoria. And he was forced, he must go, but he [could not] go with his family, a wife and three daughters. So this man [said] to his wife, ‘[n]ow I have no place in Equatoria, [could] we go back to my home?’ The wife said, ‘[w]hich home? I am not going to your home.’ So he tried to save his daughters, because some of them were in secondary school. He [asked his daughters to go back to Bar el Ghazal with him but [they] said ‘[n]o’. So he tried to open [a] legal case in Mangala, [before] a chief. The chief told him, ‘[w]hen you came from Bahr el Ghazal, you didn’t have a wife, you didn’t have children. They are not yours.’ So this man went back to Bahr el Ghazal without a wife [and] without children and he wasted… his whole life in Equatoria. I think it was one of bitterest moments… to be separated by conditions, which are beyond your [control].744
It is this bad experience that opponents use against federalism, and some of them, including President Kiir, have gone as far as warning that the Kokora incident will repeat itself if federalism is adopted in South Sudan. The President was quoted in news articles saying: ‘What happened in 1983 [Kokora] is a lesson… [P]eople…were victimised for no reason. The Equatorians wanted their own state, Equatoria region…745 The people of Bahr el Ghazal [and] Upper Nile [had to leave Equatoria]. Will this thing not happen again [if federalism is adopted]? It will happen’.746
Kokora was an unfortunate incident, brought about by difficult circumstances. However, it should not be used to suppress the federalism debate in South Sudan. Whatever the intention of opponents, it is unfair and dangerous to equate Kokora with federalism because it is not the same as federalism and it should be treated as such. Douglas Johnson, an American historian who has
742 Ibid. 743 Interview with people from Bahr el Ghazal as cited in Willems and Deng. 744 Ibid. 745 Radio Tamazuj, Kiir again Hints at Possibility of Moving Capital (25 November 2014)
…Those of us who lived through Kokora—and were abruptly and brusquely told to leave our jobs and go back to our home regions—have every reason to be suspicious of the advocates of the new Kokora […] Let us be clear: Kokora is not the same as federalism. It did not create a federal state in Equatoria or any place else in southern Sudan. It weakened the powers of the regions while leaving the power of the central government in Khartoum untouched, enhanced even. Those who want genuine federalism are best advised not to adopt Kokora as their model.747
Johnson is not alone in the call for the South Sudanese to ponder federalism in ways that go beyond the narrow understanding or application of Kokora. The Sudd Institute (a South Sudanese think-tank) has also called on the SPLM led government to allow an open debate about federalism in the country, recommending the establishment of a committee to be called ‘Federalism Working Group’ to study and deliberate on the matter. This call came after the Institute conducted a relatively small survey in the country to canvass popular opinion on federalism. The survey reported some compelling findings, including that an overwhelming majority of the respondents (99%) are dissatisfied, if not disgusted, with the current government and 83% of the respondents prefer federalism to other systems of governance, ie decentralisation or unitary. 748
In summary, opponents of federalism in South Sudan are mostly the government and its sympathisers. They seem to equate federalism with Kokora, notwithstanding the weak link between the two ideas. Perhaps this is an attempt to eschew or undermine the debate. There seems to be a strong popular support for federalism in the country as per the Sudd Institute’s survey. The demand for federalism raises a few questions, however. For example, what do South Sudanese mean by federalism? What does federalism entail generally, and how could it be adopted in South Sudan? Answers to these questions are critical to having an informed and constructive federal debate in South Sudan.
2. Federalism as a Concept
The federalism debate has been ongoing in South Sudan for quite some time now, however no one has articulated sufficiently what federalism means conceptually. Surprisingly, the apparently zealous proponents of federalism have yet to do this. The limited study that has been done on
747 Douglas Johnson, ‘Federalism in the History of South Sudanese Political Thought’ (Research Paper No 1, Rift Valley Institute, 2014) 27. 748 Abraham Awolich, ‘Federalism Debate in South Sudan: Laying the Foundation for Acceptable, Responsive, and Inclusive Governance’ (2017) Sudd Institute 1, 10. 126 federalism is by a few South Sudanese researchers and opinion commentators.749 It is one thing to be fond of an ideal but it is quite another to know what it involves. This section is dedicated to a conceptual study of federalism and its underlying theories−sociological theory and origin theory−, which help explain why federalism emerged as the preferred political arrangement in some societies. Attention is, too, given to ethnic federalism and dual federalism as they are relevant to the question of what form of federalism might best suit South Sudan in light of the ongoing debate. Hopefully, this conceptual discussion (of federalism), although relatively limited, will help clear up the confusion federalism has created in South Sudan, particularly how it is being confused with Kokora.
It may be useful to start the discussion with a short etymological study on federalism. The term federal is derived from the Latin foedus, meaning ‘covenant’, ‘pact’ ‘treaty’ or ‘alliance’750−terms that mean virtually the same thing in international legal parlance. Interestingly, some theologians and political theorists trace the origin of the ‘federal idea’ to the Bible (Old Testament). Two biblical covenants are noted in this respect: Noahic Covenant in which God binds himself never again to destroy the earth and all living things in it with a flood and Abrahamic Covenant through which God gave the land of Israel to Abraham and his descendants.751 This ‘theological usage’, it is believed, ‘gave rise to the transformation of the term "federal" into an explicitly political concept’.752
Ancient Greece was the first place in which the federal idea was used in a political sense, following the Peloponnesian War in around 431−404 BCE.753 Facing a potential threat (invasion) from Sparta, Macedon or Rome, the city-states (polis) as separate and self-governing institutions formed an association for common defence but retained much of the power, rendering the central authority very weak.754 The weakness of the central government led to their demise in the end as
749 See, for example, Luka Biong Deng Kuol, ‘The Federalism-Decentralisation-Peace Nexus in South Sudan’ in Luka Biong Deng Kuol and Sarah Logan (eds), The struggle for South sudan : Challenges of Security and State Formation (I. B. Tauris & Company Limited, 1st ed, 2018); Abraham Awolich, Federalism Debate in South Sudan: Laying the Foundation for Acceptable, Responsive, and Inclusive Governance’ (2017) Sudd Institute; Augustino Ting Mayai, ‘How the Federal System of Government is Misunderstood in South Sudan’ (2014) Sudd Institute. 750 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 1st ed, 2009) 23; Supreme Court of Queensland Library, Federalism – Back to the Future? (2004)
Leading scholars on federalism have conceptualised federalism as rooted in partnership. Among these scholars are A.V. Dicey (best known for expounding the rule of law), K. C. Wheare, William S. Livingston, William H. Riker, and Daniel J. Elazar, all of whom were 20th century writers. Dicey, Wheare, and Elazar’s works are considered briefly here. Livingston and Riker’s works belong in the discussion on the theories of federalism. There are other eminent federalists whose works are not consulted here. Nicholas Aroney, a contemporary federalist, has provided an extensive analysis of the works of many of the leading federalists, particularly the Americans and Australians.756 It is important to note that all these authors discuss federalism in the context of pre-existing and self- governing entities wanting a unity of purpose. This is in contrast with South Sudan, which is a single state attempting to construct its national identity and to create a system that balances power between its two competing levels of government.
Dicey sees federalism as the reconciliation of ‘national unity’ and ‘state rights’.757 It might be described here as the reconciliation of competing sovereignties in the sense that states that have federated were, in most cases, self-governing. This reconciliation, argues Dicey, is achieved through a well-defined division of powers between the national and state governments in a constitution.758
Dicey then identifies three characteristics of federalism. The first is the supremacy of the constitution, meaning the constitution binds the institutions of government at all levels, as well as individual citizens.759 The supremacy of the constitution is reflected in the three ways in which the constitution is set: (1) the constitution must be ‘written’ so that demarcations and rules are clear and breaches can be easily identifiable.760 This leaves no possibility for what Dicey terms ‘misapprehension’761; (2) the constitution must be ‘rigid’.762 Dicey takes rigidity to mean either the immutability of the constitution or vesting of amendment power in a body that is ‘above and beyond the ordinary legislative bodies’.763 The rationale behind setting a federal constitution rigid is that the nature of federalism as a union between equal partners demands it. For to give amendment power to one level of government would subordinate the other and thus defeat the overarching
755 Ibid. 756 NicholasAroney, above n 729, Part II. 757 A.V. Dicey Lectures: Introductory to the Study of the Law of Constitution (Macmillan, London, 2nd ed, 1886) 131. 758 Ibid. 759 Ibid, 132. 760 Ibid, 134. 761 Ibid. 762 Ibid. 763 Ibid. 128 purpose for which the system was created764; and (3) there must an independent and ‘tenured’ judiciary (the third of arm of government) that interprets and applies the law impartially and ‘conclusively’.765
Dicey makes an important final observation about federalism, which is federalism flourishes well in a society where there is a sense of ‘legal spirit’. Legal spirit, taken here as the obedience to the rule of law and respect for the institutions through which the law expresses its authority, can develop (only) in a society where the citizenry is educated but also where the bureaucracy or government respects its limits. It is fair to say there is a lack of legal spirit in South Sudan, evidenced by the limited level of education of its citizens and its militaristic politics. These factors are likely to impede the development and institutionalisation of federalism in South Sudan if adopted. They are the reason the South Sudanese have to be careful in calling for federalism in during these uncertain times. It might help to set up an independent committee, a Federalism Working Group as has been proposed, to deliberate on the matter before taking any action. The best option might be to defer federalism until the country has successfully transitioned from military rule to democracy, if ever.
Writing nearly 80 years after Dicey, K. C. Wheare, an Australian constitutional expert, conceptualised federalism as ‘an association of states…formed for certain common purposes, but in which the member states retain a large measure of their original independence’.766 Wheare’s theory seems to rest on what he calls ‘federal principle’ which is that the division of powers must render general and regional governments ‘co-ordinate’ and ‘independent’ of each other.767 Daniel Elazar provides what may be the simplest definition of federalism. Federalism, he writes, ‘…is self-rule plus shared rule’.768 This self-rule plus shared rule system has 3 operational principles−principles that are similar to those Dicey has identified. The first is a ‘written constitution’ that not only confirms the covenant but also delineates power boundaries between general and regional governments.769 The second is ‘non-centralization’ of power.770 This implies the irrevocability of powers assigned to each level of government. In simple terms, no particular level of government has the power to take away the powers of the other except by a mutual agreement. The third is ‘areal division of power’.771 This is the idea that the division of powers is organised on an ‘areal
764 Ibid, 135−136. 765 Ibid, 139; Nicholas Aroney, 93. 766 K. C. Wheare, Federal Government (Oxford University Press, 4th ed, 1964) 1. 767 Ibid, 33. 768 Daniel J. Elazar, Exploring Federalism (University of Alabama Press, 1987) 12. 769 Ibid, 157. 770 Ibid, 166. 771 Ibid. 129 basis’, meaning each constituent unit must have a defined territory over which to exercise its power. Elazar likens this to ‘territorial democracy’.772
It is clear from these conceptualisations that federalism is much broader than Kokora. It is an association founded principally on the division of sovereignty between co-ordinate parties, not a division of something material in nature as Kokora would lead some to believe. The nature of this association can be enduring, or ‘indestructible’ to borrow a more forthright term,773 paralleling the biblical covenants. These features not only distinguish federalism from Kokora, they also distinguish it from other forms of government, such as confederation where the general government is subordinate to the regional governments, and unitary where the regional governments are subordinate to the general government in terms of powering sharing.774
It should be noted that, although the division of powers is one of the defining features of federalism, it is not meant to be watertight. It becomes blurred at times. One way in which this occurs is the overlap of responsibilities of different levels of government. In Australia, for example, the federal government provides some funding for education, healthcare system, and roads (highways) which are administered by the state governments. This is one example among many and it makes it clear that there are certain things−things of shared interest−that require cooperation between the central government and constituent units. This relationship has been described as ‘collaborative’ or ‘cooperative’ federalism.775
In matured and well-functioning democracies, such a relationship can be maintained without the system necessarily running the risk of becoming centralised, although the view now in some federal countries, for example, in Australia, is that the system is becoming increasingly centralised. This is due in part to the Commonwealth Government’s ‘coercive use of the spending power’ and due in part to the High Court’s centralist approach to constitutional interpretation.776 In federally aspiring countries like South Sudan where democracy is yet to take hold, however, such a relationship can be even riskier as it could be a potential source of power imbalance between the two levels of government. This is certainly a matter for the federalism advocates in South Sudan. As a
772 Daniel J. Elazar, Territorial Democracy and the Metropolitan Frontier (1994) Jerusalem Center for Public Affairs
Scholars have developed theories to explain why federalism emerged in the first place. The sociological theory and origin theory are two examples.777 William Livingston is the exponent of the former and William Riker is the exponent of the latter.
2.1 Sociological theory of federalism
William S. Livingston was one of numerous comparative federalists, producing the bulk of his work in the mid-20th century. Like some of his predecessors discussed, Livingston focuses his writings on the nature of federalism and its causal elements. For the latter, he argues that ‘federal governments…never grow simply and purely by accident. They arise in response to a definite set of stimuli. [A] federal system is adopted as a means of solving the problems represented by these stimuli’.778 He identifies sociological factors, for example, race, language, culture, religion, history, economic etc, as representing these stimuli.779 They are elements of diversity that demand some form of ‘self-expression’ or common identity, depending on particular inter-group relationships people maintain.780 ‘If [people] are grouped territorially, that is, geographically, then the result may be a society that is federal’.781 The sociological theory, deriving its name from the sociological factors just mentioned, explains this seeming tendency by diversities to form a union.
The sociological theory may be valid in some respects but it has been condemned as unsatisfactory on two principal grounds. The first is that Livingston has merely identified the different kinds of diversities that can be present in any society but has not adequately explained which of them lead ultimately to a desire for federation.782 The second is that elements of diversity are present almost in every country, however not every country has adopted federalism.783 Indeed, of the 193 UN member states, only 25 states are federal.784 That is, roughly 40 percent of the world’s population lives under federal systems. One of Livingston’s most outspoken critics, M.
777 Other theories include ‘ideological fallacy’ which regards federalism as a device for guaranteeing ‘freedom’ and ‘reductionist theory’ which takes federalism as a means to accommodate ‘common interest’. See William H. Riker, Federalism: Origin, Operation, Significance (1964) 13−15. 778 William S. Livingston, ‘A Note on the Nature of Federalism’ (1952) 67 (1) Political Science Quarterly 81, 84. 779 Ibid, 85. 780 Ibid. 781 Ibid. 782 Sharda Rath, ‘Federalism: A Conceptual Analysis’ (1978) 39 (4) Indian Journal of Political Science 573, 578. 783 Ibid. 784 Forum of Federation, Federal Countries < http://www.forumfed.org/countries/>. 131
Venkatrangaiya, had this to say: ‘…the idea of federal society on which the sociological theory rests is vague and full of ambiguities…’785 William Riker, a 20th century scientist of politics, provides a different theory about what causes people to adopt federalism, if not about correcting the inadequacies and ambiguities in Livingston’s theory. He calls this the origin theory of federalism.
2.2 Origin theory of federalism
William Riker, probably most prominent for introducing a scientific approach to the study of political science, expounded the origin theory of federalism in an attempt to explain why federal systems of government are formed.786 He starts his study by asking a simple question: ‘What occasions the adoption of a federal government’? He identifies two conditions in answering this question. The first is the ‘expansion condition’ which is the desire in political elites, those self- professed nationalists, to expand their territory either because they want to deter ‘an external military or diplomatic threat or prepare for military or diplomatic aggression’.787 They do so by letting elements inhabiting the subject territory (constituent units) retain their independence. This allows expansion to occur ‘without the use of force’.788 When this occurs, ‘the bargain of federalism’, to which he seems to reduce his whole theory, is struck.789
The second is the ‘military condition’ which is closely related to the first condition. Under this condition, leaders of constituent units agree to enter a union for different reasons. For example, they might need ‘protection from an external aggression’ or intend ‘to participate in the potential aggression of the federation’.790 The pull factor here is ‘the military strength that comes with a larger and… stronger government’.791 Both of these conditions are basically about common defence, which is one reason for federating for many countries.
The sociological theory and origin theory of federalism are both interesting and valid to a degree. However, they do not account for the unique circumstances or reasons for which different countries adopt federalism. In South Sudan, for example, common defence does not figure in the federal debate, at least it has not so far. This is because this responsibility lies exclusively with the national government under the existing political arrangement. The sociological factors (competing regional diversities) are undoubtedly at play in South Sudan and are, indeed, some of the factors the proponents of federalism cite to support their argument. Yet, they are not the most pressing issues
785 M. Venkatrangaiya, Some Theories of Federalism (1971) 41, as cited in Sharda Rath, 579. 786 Craig Volden, ‘Origin, Operation, and Significance: The Federalism of William H. Riker’ (2004) 34 (4) Oxford University Press 89, 90. 787 William H. Riker, Federalism: Origin, Operation, Significance (Little, Brown and Company, 1964) 12. 788 Ibid. 789 Ibid. 790 Ibid. 791 Ibid. 132 for federalism. The principal driving factor for the federal movement seems to be the power imbalance between the national government and state governments, which is purely a political problem.
If the power imbalance equals a political problem, it seems to follow that the South Sudanese conceive of federalism as a solution to a political problem. How could federalism solve this political problem? Part of the answer lies in the purpose federalism serves: balancing power between coordinate levels of government. This balance of power (division) is secured by entrenching it in a national constitution, enforceable by an independent judiciary. An entrenched division of powers means each level of government cannot override or unilaterally revoke the powers of the other, nor unduly interfere in the political affairs of the other. This arrangement, if adopted in South Sudan, would place much-needed limit on the sweeping executive powers in the Transitional Constitution. It would mean the president no longer has powers that allow him to remove an elected state governor. Instead, the people of South Sudan would have the power to remove their state governors from office through electoral process. Understood in this way, federalism would have an important purpose to serve for South Sudan.
This understanding raises a further question, which is: what form of federalism would work best for South Sudan to ensure an effectively balanced power between its two competing levels of government? This can be difficult to work out, much like agreeing on federalism itself. As mentioned, there are different forms of federalism that are worth studying. Of particular relevance here are ethnic federalism and dual federalism. The former has already been proposed in the country, making it necessary to evaluate its merit.
2.3 Two forms of federalism: ethnic federalism and dual federalism
This section discusses ethnic federalism and dual federalism in turn. A point of departure here may be to ask what is ethnic federalism? Ethnic federalism implies ethnic heterogeneity in a given society. It is a political arrangement in which each of the constituent units comprises one ethnic group or largely one ethnic group.792 It is different from ‘mono-national’ federal systems (homogenous societies) in which the constituents units are not defined on the basis of ethnicity, although elements of ethnicity can be present within their boundaries.793 Like any political arrangement, ethnic federalism has upsides and downsides. One upside is that it provides ethnic nationalities with some measure of territorial and political autonomy to look after their own affairs
792 Lovise Aalen, ‘Ethnic Federalism and Self-Determination for Nationalities in a Semi-Authoritarian State: the Case of Ethiopia’ (2006) 13 (2) International Journal on Minority and Group Rights 243, 246−7. 793 Mulugeta Gebrehiwot and Fiseha Haftetsion, ‘The Politics in Naming the Ethiopian Federation’ (2015) 48 Institute of Ethiopian Studies 89, 90−91. 133 and to preserve and promote their unique cultural practices and identities within the federation matrix.794 It seeks to accommodate differences (of race, culture, language etc) but equally promotes a common national identity.795 In short, it seeks to promote both unity and diversity.
A downside is that it can increase ethnicisation in ways that threaten the growth and consolidation of national unity.796 In countries experiencing extreme political instability (and indeed, where minorities are oppressed), ethnic federal arrangement can easily yield to a demand for secession, which is a highly unpopular pursuit for it threatens state sovereignty and territorial integrity. It has also been observed that ethnic federal arrangement can create ‘local tyrannies’ in the sense that larger ethnic groups in a sub-national unit can discriminate against ethnic minorities, creating inter-ethnic conflicts.797
Is ethnic federalism suitable for South Sudan? The answer depends on who you ask. This thesis is not in favour of ethnic federalism for various reasons. Ethnic federalism, for example, has not floundered, either historically or in contemporary politics. It has been experimented in Africa, for example, in Nigeria and Ethiopia, however it has failed to address ethnic conflicts. It has not been able to create a strong common national identity and promote unity for these countries. In Nigeria, ethnic federalism, adopted at independence, was so destructive for the country that it had to be ‘abandoned and replaced with territorial federalism in 1967’.798 Basically, it served as a recipe for the disintegration of the country, an issue with which Nigeria is stilling struggling.
In Ethiopia, ethnic federalism was adopted largely to address past injustices and inequalities the country suffered under the monarchy (1889−1974) and communist regime (1974−1991).799 The system aims to address these injustices by giving ethnicities territorial, political, and economic freedom.800 However, it has achieved little for Ethiopia in terms of fostering a strong national unity. In fact, there are reports that it has actually increased ethnicisation in the country.801 This has been
794 Yonatan Tesfaye Fessha, ‘Federalism, the Subnational Constitutional Framework and Local Government: Accommodating Minorities within Minorities’ (2012) 4 (2) Perspectives on Federalism 77, 79. 795 Tesfaye Habisso, Multiethnic (Multinational) Federalism in Plural Societies: Does It Make a Difference? ( 4 November 2010) Tigrai Online
Ethnic federalism is vague a concept or worse, misleading because it implies ethnic homogeneity for the constituent units. That is not the case in Ethiopia. Ethiopia, for example, has roughly 90 distinct nationalities yet only 9 major nationalities have been constitutionally recognised as forming the federation.803 The rest live within the boundaries of these major nationalities. This has also generated land disputes in Ethiopia. It has given the major nationalities the reason to evict the small nationalities from their boundaries.804 If homogenous ethnic federalism was the intended arrangement in Ethiopia, one hardly thinks so because it is practically impossible to have an ethnically pure sub-national unit, each of its close to 90 distinct nationalities should have been territorially recognised in the Constitution as a constituent unit. That would have meant practically 90 member states of the federation. This would be unnecessary yet that is what the arrangement seems to imply.
The point here is that Ethiopia’s ethnic federalism is full of risks, inadequacies and ambiguities, and it is not a model for South Sudan given ethnic divisions are serving already in the country as centrifugal forces. It is possible that the South Sudanese could design their own better version of ethnic federalism but it is better to err on the side of caution. In contrast, dual federalism, which, in other words, is territorial federalism in which citizens’ participation and representation in government are based on their areas of residence, not on ethnicity, might be what would work best for South Sudan.
Likened sometimes to a ‘layer-cake’, dual federalism is not a difficult concept to grasp. Numerous sources have defined it in practically identical terms. The American Center for the Study of Federalism, for example, has defined it as an arrangement in which ‘the federal and state governments both have power over individuals but that power is limited to separate and distinct spheres of authority, and each government is neither subordinate to nor liable to be deprived of its authority by the other’.805 Alpheus Mason has described it as a process involving “two mutually exclusive, reciprocally limiting fields of power − that of the national government and that of the State. The two authorities confront each other as equals across a precise constitutional line, defining
Human Sciences 1, 21; Mahmood Mamdani, The Trouble with Ethiopia’s Ethnic Federalism (3 January 2019) The New York Times
Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and [state governments] will have the same disposition towards the general government. . . . If [the people's] rights are invaded by either, they can make use of the other as the instrument of redress.807
What is deducible from these conceptualisations is that dual federalism serves as a system of checks and balances between different levels of government in bureaucratic terms. Structurally, this is known as vertical separation of powers808, which, as discussed in Chapter 4, secures autonomy for the constituent units. On merit, dual federalism seems more suitable for South Sudan than ethnic federalism in which some South Sudanese academics seem to pique interest.809 It could be a solution to the political problem facing the country, thus correcting the power imbalance between the national government and state governments. Indeed, there can be many advantages to dual federalism for South Sudan aside from correcting the power imbalance, a few of which are identified below.
First, dual federalism is likely to promote much-needed democracy in South Sudan in the sense that robust state governments could bring pressure to bear on the national government to uphold the system and vice versa. Democratically transformed institutions of government are likely to take their responsibilities more seriously in South Sudan because of public accountability indispensable to democracy. The result would be governments that are more responsive to the needs of their citizenry. Second, by providing an effectively constitutionally-entrenched and ‘judicially-enforced’ division of powers, dual federalism is likely to promote the legal spirit of constitutionalism and the rule of law in South Sudan. This would mean more protection for human rights and civil liberties.
Third, dual federalism would place power in the hands of the people of the states to elect and remove their state governors from office, independent of the national government. The result would be an empowered body politic. Fourth, by allowing the state governments to run their affairs with a level of autonomy, dual federalism could mitigate tensions between the national government and
806 Alpheus Thomas Mason, ‘The Role of the Court’ in Valerie A. Earle (ed), Federalism: Infinite Variety of Theory and Practice (Itasca, Ill. : F. E. Peacock, 1968) 24−25. 807 Alexander Hamilton, Federalist No.28 (26 December 1787) Congress.gov Resources
Fifth, by dividing powers and responsibilities between the national government and state governments, dual federalism is likely to result in a reduced workload for the national government in dealing with the countless problems in the country. Finally, dual federalism is likely to create a sense of financial independence for the state governments as it would accord them more freedom to generate their own revenues to meet their respective responsibilities. This may also mean giving a certain percentage of the oil revenue to the state governments, set in a permanent constitution, rather than the national government having the discretion to decide how much money it should give to the state governments. The state governments’ financial independence implies regional economic and infrastructural development, which is consistent with the SPLM’s long-held policy of ‘taking towns to people in the countryside…’811
Although the thesis advocates for dual federal system for South Sudan, it is not to say the system would be an impermeable one. There certainly would be issues requiring cooperation between the two levels of government, as it is the case in all federations. Issues of shared interest, education, healthcare system, and roads, for example, would require collaboration even though they are exclusive responsibilities of the state governments. That is because the state governments would not have the full capacity to fund these essential services sufficiently. It may be the case that the state governments’ reliance on the national government to fund these services would compromise the integrity of a federal system, given it is likely to give the national government the urge to dictate how things are done in the states. Such an influence should be limited to those areas only, however.
How could dual federalism be implemented in South Sudan? Federating processes do not differ much from the ordinary ways of drafting and adopting a national constitution. There were at least four steps involved in the formation of the prototype federal systems (the US, Switzerland, Canada, and Australia). These key stages were ‘structuring, drafting, ratification, and enactment of the federal arrangement’, all of which are about who had the power to do certain things during the ‘formative process’.812 These elements, with the exception of the first element, which is about how the consent of each of the self-governing colonies formed the basis of the formative process of each of these federations,813 are enshrined in the Transitional Constitution (in the provisions governing
810 As discussed, some of the state governors who had been removed from office have rebelled against the government. One of them, Joseph Bangasi Bakosoro and former Governor of Western Equatoria State, currently leads the National Movement for Change which is an armed movement. 811 See SPLM’s Manifesto 2008 Chapter IV, para 24. 812 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (2009) 42. 813 Ibid, 42—44. 137 the permanent constitution-making process). Federalism is not one of the issues of reference for the permanent constitution-making process under the Transitional Constitution but, as mentioned in Chapter 4, it is under the R-ARCSS, which claims paramountcy to the Transitional Constitution on matters of inconsistency.814
Since the R-ARCSS requires the permanent constitution-making process to take account of federalism, the permanent constitution-making process could very well serve as a formative process. However, it would need to be revised substantially and appropriately. Likely areas of revision would include how a constitutional drafting body should be established. As discussed, the Transitional Constitution provides for a presidentially appointed commission to lead the drafting process.815 Many problems were identified with this process in Chapter 4, including the President’s central role, which can be a threat to the independence of both the process and commission. Alternatively, a popularly elected constitutional assembly was suggested.
As to the method of electing the members of a constitutional assembly, mixed processes were suggested in Chapter 4, including direct method where people vote directly for their representatives. Regarding the ratification, it was also suggested that the people of South Sudan should have the final say on a permanent constitution. A new federal arrangement to be ordained through a national constitution makes this even more compelling. Popular ratification of a permanent federal constitution implies the constitution derives its authority from the people, and without popular ratification, it should not bind the people of South Sudan. Of course, such a constitution would have some legitimacy if drafted by an elected assembly. However, popular ratification would give it a deeper sense of legitimacy. Part of why popular ratification is absolutely necessary is to eliminate the possibility of the small minority (political elites) imposing their will on the majority.
3. Conclusion
Federalism developed as a unifying and power-sharing arrangement. In South Sudan where the struggle for power has resulted in a severe political instability, deeply impacting the civil population, there has been an increasing call to adopt federalism. This call is not without opposition, however. It has divided the political hues into two camps: proponents and opponents. This chapter has analysed the debate, concluding that, while the proponents’ intention is good, they have yet to articulate an objectively strong argument. Beyond critiquing the debate, the chapter undertook a conceptual study of federalism for two main reasons: (a) to differentiate between federalism and
814 R-ARCSS 2018 Chapter VIII art 8.2; R-ARCSS 2018 Chapter VI art 6.2.2. 815 Transitional Constitution art 202. 138
Kokora, given the confusion they have generated; and (b) to provide an understanding of what federalism generally entails.
As well, the chapter undertook a comparative study on ethnic federalism and dual federalism for the purposes of determining a suitable form of federalism for South Sudan. On merit, the thesis has recommended dual federalism. If implemented duly, dual federalism would correct the power imbalance between the national government and state governments by placing the two levels of government on an equal footing. Regarding the process for adopting federalism, it is argued that federalism should be included in the design of a permanent constitution for South Sudan. In other words, it should be included in the terms of reference for a permanent constitution-making process.
Yet, constitution-building and federalism alone would not bring much improvement to the governance system in South Sudan. The success of a federal system is contingent on a number of other factors, among them the demilitarisation of the SPLM. The system would likely be subordinated, just like the current system under the Transitional Constitution, if the military mindset of the SPLM remains the same. To be in a position to uphold the new political system, the SPLM must be completely demilitarised. Said differently, it must shed off its thin military skin and become a democratic political party that seeks power through electoral means. The final chapter of the thesis is dedicated to this important issue.
Chapter 7—Transforming the SPLM into a Political Party: a Precondition for Peaceful Democratic Politics in South Sudan
The transformation of an armed movement into a political party presupposes a change in the strategies used by the movement to achieve its objectives. The movement must give up its armed combat and instead pursue a course of political struggle.816
Whereas the previous chapters have dealt with closely related issues of power concentration in the Transitional Constitution, permanent constitution-making process, and federalism, all being issues of general concern to the South Sudanese, this chapter shifts focus to a different issue, indeed, an issue on which the success of a permanent constitution is contingent. It looks at the daunting challenge to transform the SPLM into something more in line with the South Sudanese’ post- liberation aspirations. Put simply, to turn the SPLM into a political party or civilian government that does not thrive on coercive means to silence its opponents and to sustain itself in power, but rather
816 Willy Nindorera, ‘Burundi: The Deficient Transformation of the CNDD-FDD’ in Jeroen de Zeeuw (ed), From Soldiers to Politicians: Transforming Rebel Movements After Civil War (Lynne Rienner Publishers, Inc., 1st ed, 2008) 114. 139 seeks and keeps power through open and competitive democratic process. The transformation is also critical to the development and maintenance of constitutionalism and the rule of law in South Sudan. The South Sudanese could craft the best constitution in the world, however if the SPLM’s military mindset remains unchanged, the constitution would not make much difference for it would be subordinated or circumvented.
This chapter comprises three parts. The first part analyses the status quo, meaning the issues around the SPLM’s failure to turn itself into a democratic political institution in the post-liberation era. The aim is to assess whether the failure to seek democratic credentials, important as this is, is a deliberate institutional choice or whether there are factors responsible for this. Having some understanding of these issues is critical to thinking about what could be done to help the SPLM to undergo this long-overdue institutional reform successfully.
The second part is where the bulk of the discussion lies. It discusses three issues. The first is the nature of this proposed political transformation, or ‘rebel-to-party’ transformation, an understanding without which it is almost futile to undertake this prescriptive study. The second are two the aspects of rebel-to-party transformation, namely structural change and attitudinal change and what they involve. The third is a case-study on the emergence of the African National Congress (ANC) as a political organisation in the face of successive, oppressive colonial governments in South Africa. The ANC has effectively transformed itself into a political party that employs free democratic means to seek and keep office, earning itself a relatively high popularity in South Africa. There may be lessons to draw from the ANC’s experiences for the SPLM’s pending journey to a civilian government. As will be explained, the ANC actually shares some similarities with the SPLM. For example, both fought tenaciously against institutionalised injustices.
The final part brings the discussion closer to home. It gives some thoughts to the application of this proposed transformation to the SPLM’s structures, identifying particular areas of reform. It argues further that for this process to have any success it must be linked to the current peacebuilding process in South Sudan. The general assumption here is that, by making it part of a binding peace accord between the SPLM and armed opposition movements, it would leave the SPLM with little room for resistance. In other words, it would no longer be up to the SPLM to initiate and complete this transformative phase on its own terms.
1. Analysing the Status Quo: the SPLM and Its Post-Liberation Shortcomings
Notwithstanding winning independence from tyranny, the SPLM, to the surprise of many, has remained largely militarised in the post-independence era. Several factors attest to this claim. The
140 first is that the SPLM is still being run according to its liberation hierarchy, meaning seniority in military rank.817 What this means is that the decision-making process within the SPLM is heavily centralised as only the chairman, President Kiir, makes important decisions for the party in consultation with a coterie of advisers. This has seen the Political Bureau, which, supposedly, is the SPLM’s executive decision-making body, relegated.818 As discussed in Chapter 3, this has also seen the use of presidential decrees to appoint and dismiss ministers and state governors without following proper constitutional procedures and processes.819 This style of governing, that is, personalist rule, has made it extremely difficult for highly educated and talented young South Sudanese to come up with new ideas to help reform the SPLM. As a matter of fact, anyone who dares to suggest divergent ideas for the SPLM is immediately labelled an enemy that must be dealt with accordingly. The case of Peter Biar Ajak, a South Sudanese PhD graduate from Cambridge University, who was sentenced to two years imprisonment for suggesting changes to the leadership of the SPLM (his idea of ‘generational exit’ from power), is one example.820
The second factor is that the military and state security apparatus serve as tools for President Kiir to protect his political position by eliminating those opposed to his leadership. An example of this are the activities of the National Security Service (NSS), which involve targeting President Kiir’s political opponents, dissidents, and any civilian suspected of holding opposite views.821 The NSS was reported recently to have extrajudicially executed two South Sudanese human rights activists−Samuel Dong Luak and Aggrey Ezbon Idri.822 This is on top of the ongoing undercover operation, the ‘Juba unknown gunmen’ who shoot dead journalists and individuals suspected of having affiliations with opposition movements in the country.823 These are efforts designed to create fear for the South Sudanese, so that no one dares to question the SPLM.
817 Paul Christina Rogue, ‘Reforming the SPLM: a Requisite for Peace and Nation Building’ (2014) Institute for Security Studies 1. 818 Constitution of the Sudan People’s Liberation Movement 2008 (SPLM Constitution) Chapter VIII; Douglas H. Johnson, ‘Briefing: The Crisis in South Sudan’ (2014) 113 (451) African Affairs 300, 306; Riek Machar, ‘Public Briefing’ (Media Release, Gurtong, 8 December 2013)
Why this oppressive rule after decades of fighting against oppression? What happened to liberal ideals of democracy, the rule of law, and freedom etc, in whose names the SPLM waged a destructive civil war? There are factors that might explain why the SPLM has taken this path, although they are in no way a justification. First, observed experiences of former national liberation movements (NLMs) across the continent and beyond show that NLMs generally produce nothing other than the past from which they emerge. In other words, NLMs tend to replicate essentially the same systems against which they fought once they have assumed state power. Roger Southall has argued that NLMs ‘share the same gene’.824 This is not far from the truth, as virtually every NLM in Africa, with a notable exception of the ANC and South West Africa People’s Organisation (SWAPO), has turned into an oppressor after achieving independence. Obvious examples of these include the Zimbabwe African National Union-Patriotic Front (ZANU-PF), the National Resistance Movement (NRM) in Uganda, and the Ethiopian People’s Revolutionary Democratic Front (EPRDF) (not listed in any particular order of preference or importance), each of which has established itself firmly as an authoritarian government.
Why do NLMs take such a contorted and unpopular path in governing? This is a question that is often asked, and to which scholars have offered differing answers. According to Christopher Clapham, whose work focuses on categorising African NLMs,825 NLMs become path-dependent simply because ‘[g]overning a state presents numerous challenges that are not only different but, in some respects, clash with the requisites and principles of waging a successful liberation struggle’.826 R.H. Johnson has answered this question by reference to what he calls NLMs’ ‘common theology’ in which NLMs believe themselves to be the embodiments of their nations.827 The idea here is that native nationalism, upon which a liberation war was premised, trumps everything else, including an ideal like democracy even if it is in the interest of the populace. The implication is that for an NLM to lose power is for nationalism to be lost and for a proud history of liberation to be reversed.828 It is a belief founded on self-gratification and self-righteousness. R. H. Johnson has put this more forthrightly:
National liberation is both the just and historically necessary conclusion of the struggle between the people and the forces of racism and colonialism. This has two implications. First, …[national liberation movements]– whatever venial sins they commit–are the righteous. They do not merely represent the masses but in a sense they are the masses, and as such they cannot really be wrong. Secondly, according to the theology, their
824 Roger Southall, Liberation Movements in Power: Party and State in Southern Africa (Boydell & Brewer, 2013) 133. 825 Christopher Clapham, African Guerrillas (James Currey, 1st ed, 1998) 6−8. 826 Christopher Clapham, From Liberation Movement to Government: Past Legacies and the Challenge of Transition in Africa (2012) The Brenthusrt Foundation
coming to power represents the end of a process. No further group can succeed them for that would mean that the masses, the forces of righteousness, had been overthrown...829
This ‘common theory’ seems to be what the SPLM is operating by, for little else explains its attempt to maintain the status quo (path-dependency) in the face of a strong popular desire for democratic governance.
The second factor that seems to explain the SPLM’s path-dependency syndrome relates to a lack of or commitment to a particular political ideology. At its inception, the SPLM adopted Marxism- Leninism (communism), although, as discussed in Chapter 2, this was intended as a pretext to gain material and strategic military support from the Ethiopian communist ruler, Mengistu Haile Mariam.830 However, when Mengistu was overthrown in 1991, the SPLM abandoned Marxism- Leninism in order to find new benefactors.831 Presenting itself as an agent for democratic change and characterising war as a religious war between black African Christian minorities and enslaving Arab Muslims, the SPLM easily won the support of the evangelical community in the US linked to the Republican Party.832 It took quite some time for this message to resonate with the Americans, however.
There appears to be an irony in this tactic of shifting ideological gears. On the one hand, it appears the SPLM continued to practise Marxism-Leninism after the fall of the Ethiopian Derg. As discussed in Chapter 2, Dr Garang’s autocratic tendencies, notably his effort to resist voices for democratic reform within the SPLM, substantiates this claim.833 Dr Peter Nyaba, who was an eyewitness to all these developments, reports in his recent book:
A time was bound to come when the political functions would preponderate over the military functions and, therefore, it was necessary, indeed imperative, to build democratic structures as a means of training the leaders, cadres, and combatants for democratic governance. The call for reforms and structuring of the SPLM/A was in order. The problem was that Garang had closed all avenues to democratic discourse in the movement, relying on a repressive security and intelligence apparatus to suppress…any agitation for reforms. This suffocating political atmosphere produced the Nasir Declaration [the split of the SPLM in 1991].834
On the other hand, the SPLM presented itself to its new friends and the wider world as a pro- democracy movement. This is most evidenced in its founding document, the Manifesto, which states, in part:
829 R H Johnson, above n 808; also cited in Roger Southall, 5−6. 830 John Young, ‘Sudan: The Incomplete Transition from the SPLA to the SPLM’ in Jeroen de Zeeuw (ed), From Soldiers to Politicians: Transforming Rebel Movements after Civil War (Lynne Rienner Publishers, 2008) 158. 831 Ibid. 832 Richard Bowden, South Sudan’s Leaders have Learnt Nothing from 50 Years of Independence in Africa (22 January 2014) Africa Arguments
The transformation of Sudan envisaged by the SPLM, thus, represents a political and socioeconomic paradigm shift from hegemony in all its forms to the recognition of Sudan’s political, cultural and social diversity, within a framework of a vibrant multi-party democracy with a meaningful Bill of Rights that recognizes and upholds natural as well as political, socio-economic, cultural and environmental rights and obligations. That democracy shall also ensure peaceful transfer of power and separation of powers among the executive, judicial and legislative organs of the state.835
This inconsistent or opportunistic ideological position, that is, presenting the SPLM on paper as a democratic movement but maintaining essentially Marxist-Leninist ideology in practice, has continued to plague the SPLM to this day. It proves right those who maintain that the SPLM has either lost its vision or it never had one.836 Indeed, since independence President Kiir has never told the South Sudanese what he believes in and what his vision is for the country. This observation is not news to the South Sudanese, nor to international observers of the country’s politics. In January 2009 President Kiir (President of the then Southern Sudan) went to the White House to seek assurances from outgoing President Bush for the implementation of the CPA. During the meeting, President Bush afforded him an opportunity to outline how he planned to build a new nation, an independent South Sudan, in anticipation of secession. His answer was: ‘[my assistants] will [explain] that’.837 (His assistants were high ranking SPLM officials who accompanied him). One of the White House officials who was in the meeting had this to say: ‘[i]t was a complete abdication of his responsibility as a leader, something I had never seen in dozens of Oval Office meetings with 838 African heads of state’.
Whatever was the intention of President Kiir, this certainly did not reflect well on him as a representative of the people of South Sudan, risking him to be labelled as an incompetent leader. President Kiir’s habit of taking his responsibility lightly is part of a broader pattern in which the SPLM does not seem to take governing the country seriously.
The final factor that also seems to explain the SPLM’s failure to part with its military tactics in favour of peaceful democractic politics is the unconducive post-liberation environment. The post- liberation environment is unconducive for two principal issues. The first is the concern about the National Congress Party’s (the Sudanese government) commitment to implement the CPA fully and to respect South Sudan’s sovereignty and territorial integrity (as there are issues outstanding in the CPA). Diplomatic relations between these two countries (South Sudan and Sudan) have remained highly volatile since independence.
835 The SPLM Manifesto (revised version) 2008. 836 John Young, above n 800, 158−160; Peter Nyaba, 10. 837 Ty McCormick, Unmade in the US: a Special Report (25 February 2015) Foreign Policy
It is apparent that the Sudanese government has not given up entirely on reclaiming parts of South Sudan, particularly resource-rich areas, including Abyei over which it continues to assert its sovereignty despite the fact that a majority of the inhabitants of this territory − the Ngook Jieeng (Dinka)−identify themselves as South Sudanese. Like the separation of South Sudan, the CPA mandates the dispute over Abyei to be decided through a referendum, which was to be carried out simultaneously with Southern Sudan’s 2011 referendum.839 However, a number of issues have delayed the referendum, among them the question of who is eligible to take part in the referendum. Juba maintains that only the traditional inhabitants of Abyei, meaning Ngook Jieeng, should be eligible to vote, whereas Khartoum insists that all those who call Abyei home, including the seasonal (nomadic) Misseriya who are pro-Khartoum and sometimes act as Khartoum’s militias, should vote in the referendum.840 This is all a pretext because Khartoum’s main reason for laying claim to Abyei is none other than oil.
Frustrated by this impasse, the Ngook Jieeng took a risk in 2013 and organised their own referendum in which they voted unanimously in favour of becoming citizens of South Sudan.841 But as an unofficial referendum, it was not recognised and its outcome did not bind the Sudanese government. The issue of Abyei remains unresolved, as such. Meanwhile, the Sudanese government continues to send its militias to the area to kill innocent civilians, even with the presence of the United Nations Interim Security Force for Abyei (UNISFA).842 This is an effort design to strike terror into the inhabitants in order to give up their land. Another territory that continues to be a source of dispute between the two countries is Panthou which is also a resource-rich area at the border but whose traditional inhabitants are South Sudanese, not Arabs.843
These outstanding issues have put the SPLM on high alert, given they could potentially trigger a return to hostilities between the two countries if not resolved peacefully. Indeed, some people have speculated that Abyei is a potential ‘Sudan’s Kashmir’ in the making.844 As mentioned in Chapter 3, it also seems to be the SPLM’s philosophy that a period of authoritarian rule is necessary, at least as a transitional measure. This is even so considering the ongoing civil war which, more or less, is an
839 CPA Chap IV, the Resolution of the Abyei Conflict art 8—8.2. 840 Peter Greste, Abyei’s Symbolic Referendum (2013) Aljazeera
2. Understanding Rebel-to-Party Transformation Process
It may be useful to start the discussion by tracing the word transformation etymologically. The word transformation comes from the Latin transfomare, meaning to ‘change the nature, function, or condition of, to convert’.845 It is usually used in a positive and profound sense, denoting some significant, fundamental or even existential change.
Transformation can apply to individuals, communities, organisations or institutions. In the context of the liberation movements, the concept is taken to mean a transition from military rule to civil rule.846 Jeroen de Zeeuw, one of the advocates of this process, defines rebel-to-party transformation ‘as the process of structural-organizational and attitudinal change intended to convert an armed rebel group into an unarmed political party’.847 It might be best described as the creation of a political institution that is accountable to both its party members and the wider citizenry in seeking office.
In emphasising the importance of rebel-to-party transformation in a post-conflict environment, scholars warn that it is a highly volatile process and that care (and patience) should be exercised by all the stakeholders.848 Zeeuw, in particular, has counselled that the process is ‘extremely complex and time-consuming and has a high risk of failure’.849 It is also generally noted that the success of this process depends on a particular type of liberation movement and its ideological persuasion. For example, reformist movements, that is, those movements that aim primarily for reform within an
845 Stephen Hacker and Tammy Roberts, Transformational Leadership: Creating Organizations of Meaning (ASQ Quality Press, 2003) 1; Murray Stein, Transformation: Emergence of the Self (Texus A & M University Press College Station, 1st ed, 1998) 52. 846 Said Adejumobi, Demilitarization and the Search for Democratic Stability in Nigeria (1999) The Republic of Nigeria
The Ugandan NRM and Ethiopian EPRDF, mentioned above as having made transitions from military rule to civil rule, although their nations have backslid to authoritarian democracies, are examples of reformist movements. Zeeuw’s point that separatist movements tend to be less prepared to deal with governance issues in the post-liberation period nonetheless has some validity. The performance of the SPLM in its post-liberation period speaks volumes. It goes to show that it probably never gave a serious thought to how it would manage difficult challenges of governance in an independent South Sudan. The rebel-to-party transformation has two key aspects: structural change and attitudinal change. They do not, however, occur in a linear manner as it might seem.
2.1 Two aspects of rebel-to-party transformation:
2.1.1 Structural change
Structural change implies a change in the structure of an organisation, in this case an armed movement that has won a military victory or has come to power through a negotiated peace agreement. This change is referred to mostly as ‘demilitarisation’.851 Demilitarisation came to academic focus in post-World War II. A number of scholars have offered their insights into the concept. Andrew Bickford understands demilitarisation as ‘a reversal of an implicit process or program, an unravelling, an unmaking of that which came before, of ways of thinking and feeling and seeing that made a military solution thinkable and desirable’.852 Howard Clark has conceptualised demilitarisation as a twofold-process, consisting of what he calls ‘surface’ demilitarisation and ‘deep’ demilitarisation.853 ‘Surface demilitarisation is concerned with the disbanding of forces, surrendering arms and implementing ceasefire agreements [whilst] deep demilitarisation is addressing the roots of militarisation and undoing the legacy of war and militarisation as part of an effort to reconstruct society on a different basis’.854 Martinho Chachiua
850 Ibid. 851 Ibid, 12. 852 Andrew Bickford, ‘Demilitarization: Unravelling the Structures of Violence’ in Peter N. Stearns, Demilitarization in the Contemporary World (University of Illinois Press, 2013) 20. 853 As cited in Nyambura Wambugu, Post-Conflict Security in South Sudan: From Liberal Peacebuilding to Demilitarization (I.B Tauris, 1st ed, 2019) 19. 854 Ibid. 147 calls this ‘qualitative’ demilitarisation, which is about reversing ‘militaristic ideologies and values as well as de-emphasizing violence as a means of resolving conflict’.855
Eboe Hutchful uses a similar methodology or ‘qualitative process’ to describe what demilitarisation should include, providing the following as critical to its success:
‘downsizing military budgets; demobilizing and reintegrating soldiers and former combatants; redefining the role of the military, with particular emphasis on collateral functions, such as national development and peacekeeping; restructuring security-related institutions in order to facilitate civil and parliamentary control and to initiate a process of reconciliation between armed forces and civil society’.856
The common concrete theme from these conceptualisations, it seems, is the laying down of guns and educating combatants and society as a whole on the value of peace. This is important for a number of reasons. First, it can create a socio-political environment conducive to peace, development, and good governance. Second, and relatedly, there is a need to redefine the role of the military in the post-conflict setting, to de-politicise the military to ensure no individual leader takes an unfair advantage of the military to achieve his or her political objectives. Instead, the armed forces need to be transformed into a professional and disciplined military whose sole responsibility is to defend the nation against threats or aggression. Lisa Brooks has succinctly captured the essence of the role of the military, albeit writing with more stable Western democracies in mind:
When individuals join the armed forces, they commit to act in service of the country as a whole and to forego political activity. Military personnel are charged with protecting the security of the country and with performing their functional responsibilities with efficiency, commitment, and skill. Officers are socialized to believe that the world of politics is exclusively a civilian arena.857
In line with Brooks’ observation is Richard Kohn’s, which strongly emphasises the subordination of the military to political institutions in all matters, that is, ‘civilian control’:
…[C]ivilian control is absolute and all-encompassing: No decision or responsibility falls to the military unless expressly or implicitly delegated to it by civilian leaders. Even the decisions of command – the selection of strategy, of what operations to mount and when, what tactics to employ, the internal management of the military – derive from civilian authority. [C]ivilian control requires a military establishment dedicated to political neutrality: one that shuns under all circumstances any interference with the constitutional functioning or legitimate process of government, that identifies itself as the embodiment of the people and the nation (and
855 Ibid. 856 Eboe Hutchful, ‘The Leadership Challenges of Demilitarization in Africa’ (Paper presented at Arusha conference on the challenges of delimitarisation in Africa, 22−24 July, 1998) 4−5. 857 As cited in Makubin Thomas Owens, ‘Military Officers: Political Without Partnership’ (2015) Strategic Studies Quarterly 88, 88. 148
not a particular party, agenda, or ideology), and that counts unhesitating loyalty to lawful authorities and the system of government as crucial aspects of its professionalism.858
The other aspect of demilitarisation requires a reduction in the size of the military. This is achieved through demobilisation, disarmament, and reintegration (DDR) process.859 The aim of DDR is to create a lean professional military. However, creating a lean military is easier said than done for at least three reasons. First, experiences show that military leaders are not always prepared to release combatants, especially in situations where tensions remain high.860 That is because they anticipate a return to war and potentially losing it if they do not command enough forces.
Second, creating a lean military requires a considerable amount of resources to support the process, which may not be available.861 However, this is one area where financial assistance is sometimes readily available from donors and the international community. For example, in the Mozambican transformation process of 1994, involving the National Resistance Movement for Mozambique (Renamo) and Front for the Liberation of Mozambique (Frelimo) as the conflicting parties, regional and international actors, particularly the African Union and the United Nations Operation in Mozambique (UNOM), generously funded the process. The process received a total of US$95,000,000.00 in funding and around 93,000 combatants (71000 from Frelimo and 22000 from Renamo) were demobilised and reintegrated into the community.862 This was a successful transition but a short-lived one as the parties returned to hostilities in early 2000, continuing until August 863 2019 when another peace agreement was signed.
Third and finally, combatants may not be ready to put their guns down for one reason: they generally lack the skills required to make a living in civilian life. However, this, too, is where financial assistance can make much difference to a transition. In Mozambique, this actually meant giving combatants the opportunity to learn new skills through technical training programs and giving them cash money, as well as creating avenues for reconciliation between combatants and local communities.864 Each soldier received US$1000.00.865 Terrence Lyons, who has studied the Frelimo-Renamo rebel-to-party transformation process, reports that the process ‘succeeded in part
858 Richard H. Kohn, ‘How Democracies Control Military’ (1997) 8 (4) Journal of Democracy 140, 142−145. 859 L. Lenisse Eldloe, ‘Best Practices for Successful Disarmament, Demobilization, and Reintegration’ (2007) 1 New Voices of Public Policy, George Mason University 1, 2. 860 Ibid. 861 Ibid. 862 Terrance Lyons, above n 829,153. 863 Joacquim Nhamirre, Mozambique Sign Peace Deal (8 August 2019) MailGuardain
In summary, structural change is a key aspect of rebel-to-party transformation. It involves demilitarising the post-conflict environment, which, in turns, requires insulating the military from politics and reducing the size of the military. Central to this process are changes that must occur in the personal behaviours of the leaders and also in an organisation’s decision-making process. This is the second aspect of rebel-to-party transformation. It is called attitudinal change.
2.1.2 Attitudinal change
Most armed movements are run through a top-down system where a dominant leader or a few officers in high command positions make decisions for a movement. This enables the military to operate more effectively and efficiently as it ensures order. However, once an armed movement has assumed state power, this hierarchical style of decision-making process no longer suits. As a result, a new decision-making process has to be devised. Scholars have termed this shift in an armed movement’s decision-making ‘attitudinal change’.867 Attitudinal change implies consultation, inclusivity, and participation in a movement’s decision-making process. It is bottom-up, or the reverse of a top-down command system that was likely operationalised during the armed struggle. It may be best described as the initiation and institutionalisation of internal democracy in a movement’s post-conflict political development. This is necessary for a number of reasons, among them the broader goal of winning and maintaining popular support.
However, like demilitarisation, attitudinal change is easier said than done. It is not easy to give up an old habit, one that has developed over a protracted period of conflict, especially. This becomes even more difficult if the leader of a movement is held in high regard by the military. Zeeuw argues that where this is the case it can lead to a fossilised situation in which the leader resolutely opposes ‘any changes needed in organisational structure and behavior’.868 Central to attitudinal change is the ‘adaptation of [new] strategies and goals’.869 It is not possible for war strategies or tactics to translate into workable policies in the post-liberation period. As such, new strategies, non-violent ones, are needed to enable a movement to cultivate new relationships with a whole range of stakeholders (eg, the populace, civil society organisations, opposition parties, and international community).870 This is in addition to providing needed infrastructure and services,
866 Ibid. 867 Jeroen de Zeeuw, 14. 868 Ibid, 15. 869 Jeroen de Zeeuw, 15. 870 Ibid. 150 which are difficult to meet in the immediate post-liberation period due to a lack of or limited resources.871
One of the numerous reasons for undertaking transformation (as a package) is to help a movement to achieve its end goal−to become a credible, civilised, and competent political party. What is a political party? Political parties, generally speaking, have been defined as an unarmed group of persons that aim to acquire and keep public power but do so with a sense of being accountable to their electors (both party members and the general public).872 The emphasis here is on the word ‘unarmed’, which, for a liberation movement, suggests a shift in the means it uses to keep power. Mimmi Kovacs and Sophia Hatz have emphasised the importance of this:
[T]he essence of the transformation from a rebel group into a political party lies both in the change of means of the political struggle, from arms to votes, and the arena of that struggle, inside or outside the legal framework of politics. Hence, the rebel group must both abandon the armed struggle and continue the political struggle through active participation within the political system in order to be considered to have transformed into a political party.873
In summary, attitudinal change is a critical aspect of rebel-to-party transformation. It requires democratising a movement’s decision-making process and adopting new goals and strategies. These changes are necessary to ensure a movement’s political survival in the post-conflict setting where the use of arms to keep power is not only illegitimate but also runs the risk of derailing peace as many actors emerge to vie for power. A case-study might enhance this theoretical understanding of rebel-to-party transformation. The ANC, as mentioned, provides a good case-study partly because it represents cases of successful rebel-to-party transformation on the continent and partly because it shares some similarities with the SPLM.
2.2 Case-study: ANC’s assumption and retention of state power
The ANC has a long history but it is not the aim here to present its whole history.874 The focus is on its journey to becoming a dominant party in the South African politics. The discussion begins by first noting apparent similarities between the SPLM and the ANC.
There are at least three major similarities between the SPLM and the ANC. First, they are both former national liberation movements that fought against colonialists (Arabs in Sudan and
871 Ibid. 872 Mimmi Söderberg Kovacs and Sophia Hatz, ‘Rebel-to-Party Transformations in Civil War Peace Processes 1975–2011’ (2016) 23 (6) Democratization 990, 996. 873 Ibid. 874 The ANC has been a subject of intense scholarly interest. See, for example, Raymond Suttner, ‘The African National Congress Centenary: a Long and Difficult Journey’ (2012) 88 (4) The Royal Institute of International Affairs 719−738; Roger Southall, Liberation Movements in Power: Party and State in Southern Africa (Boydell & Brewer, 2013) Chapter II; African National Congress, A brief History of the ANC
Afrikaners in South Africa) who were not prepared to pack up and leave like some of the European imperial forces that invaded Africa.875 Second, they were led by popular leaders−Dr Garang for the SPLM and Nelson Mandela for the ANC, and who became South Africa’s first President in the post-apartheid era. While both leaders had a huge influence on the continent and beyond, and especially President Mandela who continues to be celebrated widely after his death, differences−ideological differences perhaps − can be noted between them. For example, as mentioned, Dr Garang was a military dictator inspired by Marxist-Leninist thinking,876 whereas President Mandela was a liberal leader whose approach to effecting political change in South Africa was through non-violent means. The important point here is that they left legacies that significantly influence the directions their respective parties are following.
Third and finally, the SPLM and the ANC led armed movements (to a lesser extent in the case of the ANC).877 However, they came to power in the end through negotiated peace processes. The CPA, as discussed, provided the means for resolving the conflict in Sudan, giving the SPLM the opportunity to co-govern in Sudan’s unity government and later became the government of South Sudan following the popular vote for independence. In South Africa, it was a series of bilateral and multi-lateral declarations that culminated in the resolution of the conflict and the ANC’s ascension to state power.
These declarations included the Groote Schuur Minute (a bilateral agreement between the National Party and ANC),878 the National Peace Accord (NPA) (1991), the Convention for Democractic South Africa (CODESA) (1991), and the Multi-Party Negotiating Process (MPNP) (1993). All of these were preceded by preliminary reforms undertaken by President de Klerk of the National Party, notably the unbanning of the ANC and releasing of Nelson Mandela from prison in 1990.879 The MPNP was the most effective instrument in that it laid out the most agreeable roadmap to a peaceful democratic transition for South Africa. This process was led by a Negotiating Council,
875 John Young, ‘Sudan: The Incomplete Transition from the SPLA to the SPLM’ in Jeroen de Zeeuw, From Soldiers to Politicians: Transforming Rebel Movements after Civil War (Lynne Rienner Publishers, 1st ed, 2008) 158. 876 Paula Christina Rogue, ‘Reforming the SPLM: a Requisite for Peace and Nation Building’ (2014) Institute for Security studies 1, 5; Peter Adwok Nyaba, South Sudan: Elites, Ethnicity, Endless Wars and the Stunted State (Mkuki na Nyoka Publishers, 2019) 97. 877 The ANC’s policy from its inception in 1912 was to effect change peacefully through protests and strikes but this was not effective enough. It resorted to the use of arms in the 1960s after it was banned in the country. This saw the formation of Umkhonto we Siswe as a military wing, although it never mounted a serious fight against the apartheid government. Umkhonto we Siswe, generally shortened as MK, is translated as the ‘spear of the nation’. 878 Minutes and Accords between the ANC and the South African Government, (4 May 1990−12February 1991)
The first fully franchised and multi-party elections were held in South Africa in 1994.884 The ANC under the chairmanship of Nelson Mandela, who was elected party president immediately after his release in the ANC’s first open conference since it was banned in the 1960s, won elections by 62% of the votes counted.885 The South African Parliament (or National Assembly) selected Nelson Mandela as President of South Africa on 9 May 1994 and he was sworn in the next day in Pretoria.886 The ANC has been in power since 1994, although its popularity has been declining increasingly due, in large part, to corruption issues in which it has been implicated and rising level of unemployment in the country.887
The take-home message from this study is that the ANC has transformed itself into a democratic political party capable of maintaining (if imperfectly) fundamental liberal principles of good governance such as constitutionalism and the rule of law. Indeed, it is arguable that the ANC is the only African liberation movement that has truly parted with its liberation military tactics. This raises an important question: why was the ANC able to transform itself into a political party so swiftly? A few factors might explain this. The first has to do with the ANC’s founding liberation philosophy as a peaceful, democratic, and equality movement. This philosophy is reflected in its 1955 Freedom Charter, the preamble to which states, in part:
We, the People of South Africa declare that… South Africa belongs to all who live in it…and that no government can justly claim authority unless it is based on the will of all the people; [a]nd therefore we, the
880 Catherine Barnes and Eldred De Klerk, ‘South Africa’s Multi-Party Constitutional Negotiation Process’ (2002) 13 Accord 26, 31. 881 Padraig O’ Malley, Plenary Session of the Multi-Party Negotiating Process (17 November 1993) Nelson Mandela Centre of Memory https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02039/04lv02046/05lv02097/06lv02102.htm>. 882 Transitional Executive Council Act, 1993 (SA) [Act No.151 of 1993] section 2. 883 Independent Electoral Commission Act, 1993 (SA) [Act No. 150 of 1993] Chapter II. 884 Tom Lodge, ‘The South African General Election, APril1994: Results, Analysis and Implications’ (1995) 94 African Affairs 471, 471−472. 885 Ibid. 886 President Nelson Mandela, ‘Inaugural Speech’ (Union Building, Pretoria, 10 May 1994)
People of South Africa…adopt this Freedom Charter [and]… pledge ourselves to strive together sparing neither strength nor courage, until the democratic changes here set out have been won.888
This commitment to bring about change in South Africa through a popular process made it easy for the ANC to abandon arms and turn itself into a massed-based movement when the opportunity to do so presented itself. Second, there was already infrastructure in place in South Africa, including functioning governmental institutions and some level of democracy, when the ANC assumed state power. In other words, the ANC has been building on an existing system, making the transition much easier.
Third, the ANC’s high popularity as an anti-apartheid force (apartheid apparently being an issue that continues to play a role in the way the black South Africans vote in elections as the majority) gave it the confidence to face the South African public in seeking office through electoral process. It remains uncertain, however, what would happen if the ANC were to lose an election. Would it respect the popular verdict and concede defeat? Roger Southall thinks otherwise. He argues that ‘if push comes to shove, there will be many among the rank of…the ANC who will wish to emulate the example of ZANU-PF by blatantly rigging elections, using concerted state violence, and refusing to accede to the expressed wishes of the people’.889
Fourth and finally, the ANC had no strong military on which to rely to push for its agenda. Arguably, this made the transition to democracy more preferable. Strong military power, coupled with political incompetence, is one of the factors that have made the transition to democracy less attractive for the SPLM. Although the SPLM does not have the advantages the ANC has had, transition to democracy remains the best course of action partly because it is in the public interest, and partly because it is the best guarantee for the SPLM’s long-term political survival. It is only by being a genuinely representative political party that the SPLM can stay relevant to the people of South Sudan.
2.3 Implementing rebel-to-party transformation within the SPLM structures
Rebel-to-party transformation, as mentioned, is not a linear process−ie there is no one particular formula to follow. Regardless, this thesis argues that implementing transformation within the SPLM structures must begin with a well-defined separation between the South Sudan People’s Defence Forces (SSPDF) as a military and the SPLM as a civilian government. To do this, a few things have to be put in order.
888 The Freedom Charter, aadopted at the Congress of the People at Kliptown, Johannesburg, 25−26 June 1955. 889 Roger Southall, Liberation Movements in Power: Party and State in Southern Africa (Boydell & Brewer, 2013) 133. 154
First, and most obvious, the SSPDF needs to be established as a separate, professional, and disciplined military whose sole responsibility is the defence of the nation. Separation implies the SSPDF’s independence from politics. Presently, there are military Generals who are members of both the SSPDF and the SPLM. President Kiir himself, who has retained his military rank as a Lieutenant General and Commander-In-Chief of the SSPDF, is one example. Of course, as President of South Sudan, he ought to command the military. However, it blurs the line between the military and politics for the President to retain his military rank whilst at the same he is engaged in the day-to-day political decision-making for the nation. What this does is make the military loyal to him personally rather than to the nation. The likely implication of this is that he can use the military to achieve or protect his political interest, for example, to ensure his longevity in power, thereby defeating the higher purpose for raising a national military. To avoid this danger, a clear line has to be drawn between the SSPDF and the SPLM: those in uniform must be confined to the barracks and politics should be left to civilian leaders. The SSPDF must be subordinated to a legitimately elected civilian leadership.
However, one does recognise that soldiers might find this arrangement difficult, if not impossible, to accept, considering the many benefits they would have to lose. This calls for a flexible approach to implementing the separation of the military and politics. Such an approach might involve giving the military a limited role to play within the realm of politics during the transitional phase. The role could be designed in a way that ensures it phases out as the transition progresses. What role could be given to the military? There are a few options to look at. One option is ‘direct’ military involvement in politics, meaning giving the military specific constitutional posts to fill during the transition.890 This (appeasement) approach has been utilised in some countries in recent times. For example, it was incorporated in Burma’s 2008 Constitution that ushered in a new dawn (of democracy) for the country following decades of military dictatorship. The Constitution reserves 25% of seats in Amyotha Hluttaw (National Assembly or upper house) for military officers (calculated to be 56 seats out of the 224 seats in the National Assembly).891 It also reserves 33% of seats in the Pyithu Hluttaw (House of Representatives or lower house) for military officers (calculated to be 110 seats out of the 330 seats in the House of Representatives).892 Important ministries, namely ministry of defence, ministry of home affairs and ministry of border affairs, are to be filled by military officers who are under no obligation to resign or retire from the military.893
890 Ozan O. Varol, ‘Constitutional Performance in Transitions from Military to Civilian Rule’ in Tom Ginsburg and Aziz Huq (eds), Assessing Constitutional Performance (Cambridge University Press, 2016) 149. 891 Myanmar’s Constitution 2008 art 141 (a) and (b). 892 Myanmar’s Constitution of 2008 art 109 (a) and (b). 893 Myanmar’s Constitution of 2008 art 232 (b) (ii) and (j) (ii). 155
This same approach was, to some extent, applied in the Egyptian 2014 transitional process after the fall of Hosni Mubarak in 2011 a consequence of Arab Spring that saw the Muslim Brotherhood (an Islam-based political movement) assuming state power in Egypt for the first time since its founding in 1928. The resultant documentConstitution of Arab Republic of Egypt 2014requires the ministry of defence to be filled by a military officer ‘for two full presidential terms’ starting from the date the Constitution took effect.894
These examples are worth looking at in contemplating giving the military some political role in the South Sudanese pending transition from military to democracy, if necessary. However, caution is advised in looking at these approaches, particularly the Burmese approach because it allows the military to wield too much power in the political affairs. What is even more concerning is that the Burmese Constitution entrenches the political power of the military. This sort of military-civilian power-sharing arrangement is not recommendable for South Sudan. The goal in proposing to give the military some level of involvement in the South Sudanese political leadership is to prevent any backlash that might result from an abrupt exclusion of the military personnel from the political scene. It is not to give the military permanent positions in Parliament. The Egyptian approach is recommendable for South Sudan since it gives the military a non-permanent role in political leadership.
How could the SSPDF personnel participate in the political leadership if this approach were to apply in South Sudan? It can be difficult to work this out, given the President is the top General in the military. Given the importance of the transition to South Sudan’s future and development, however, some serious measures would have to be taken. Such measures might involve requiring the President to retire from the military and be a civilian leader, or remain in the military and retire from politics, whichever might be preferable to him. If the former were to be his preferred choice, a high-ranking military officer, say the Chief of Staff, could be given the ministry of defence but without resigning from the military, unless he freely chooses to do so. He could keep this position for the entire duration of the transition, however long the transition would be. The aim is to have a military representative in the political decision-making process so that he could have an input in all the decisions affecting the military (eg, budget, deployment etc). This role would cease at the end of the transition, at which point the military must accept the authority of an elected civilian leadership and retreat to the barracks permanently.
The next step in reorganising the military is implementing the DDR process – downsizing the SSPDF to make it a leaner military. This would make the SSPDF manageable in terms of financing
894 Constitution of Arab Republic of Egypt 2014 art 234. 156 it adequately. It is not clear what the size of the SSPDF exactly is, however reports suggest it has around 243,344 active combatants as of 2019.895 This is not sustainable, taking into account the budget limitations. Recent figures indicate that South Sudan’s defence budget for 2019 was around US$36−$59.4 million.896 There are reports that combatants go for months and sometimes a year without pay (not to mention civil servants, school teachers, and University lecturers etc who are equally affected).897 This makes life difficult for career soldiers and their families who depend on the government for their livelihoods.
There was some progress made on the implementation of the DDR process during the CPA interim period (2005−2011) that could be revisited and built upon.898 This process was overseen by the DDR Commission established under the CPA.899 The Commission aimed to have 90,000 combatants demobilised from each side to the agreement (the SPLM/A and government of Sudan).900 Reports indicate that only 12,525 combatants were demobilised and 5,000 reintegrated into the community (Phase 1).901 It is not clear how many combatants were demobilised and reintegrated from the other side, if any.
In 2012, the government of South Sudan initiated its own DDR program, known as the ‘SPLA Objective Force 2012−2017’, to transform the SPLA (as was then known) into a conventional military.902 It set an ambitious target of 120,000 combatants to be demobilised.903 However, it is unclear what progress has been made on that. It is highly probable that this program has stalled due to the civil war, which has likely altered the government’s priorities. Whatever the case, downsizing the SSPDF should remain a top priority for the government. A significant reduction in the size of the SSPDF could mean the government has some savings to fund other essential services such as education and health system.
895 Ministry of Finance and Economic Planning, Government of the Republic of South Sudan, Drafted Budget Estimates for 2019/020 (29 July 2019) 666
Likewise, the SPLM will have to undergo necessary changes. In particular, it has to establish itself as a democratic political party as part of drawing a clear line between these rather fused institutions. To do this, significant reforms will need to be undertaken internally. First, the SPLM has to have an open and free internal process by which party members can vie for leadership. The processes provided in the SPLM Constitution do not encourage democracy to develop within the party. For example, the Constitution does not specify whether a sitting leader can be challenged for leadership by a party member or the term for which a leader should serve. It merely provides for an unlikely process for removing the party leader for ‘violation of the Constitution or gross misconduct’.904 That is, to remove a party leader a resolution must be passed by three-quarters (3/4) of all the members of the National Convention − technically all voting party members. This makes it almost impossible to remove the party leader.
This process should be changed or simplified to make it easy for democracy to be practised within the SPLM. To do this, its Constitution should be revised to provide for the following: (1) a definite term for which an elected party leader should serve; (2) the leadership should be open to a challenge by any party member capable of leading the party; and (3) the party leader should be removed from the leadership (for whatever reason) by either a simple majority or two-thirds vote. The three-quarters figure is too onerous and unnecessary. Indispensable to these internal reforms is the broader need to develop an effective campaign strategy to attract popular support and win elections. Reliance on force to maintain power should no longer be an option because it is not conducive to peaceful politics and democracy.
Finally, the SPLM needs to draw up a comprehensive program for governing the country − a program that clearly defines the priorities for the SPLM and how to meet those priorities. There are obvious issues in the country that could make it to the list of priorities, including addressing rife corruption and insecurity in the country and providing needed infrastructure (building schools, health facilities, roads etc). This is all easier said than done, due in part to the lack of resources and due in part to the SPLM’s limited experiences in governance. However, as discussed, the SPLM could draw on the experiences of post-conflict institutions on the continent, particularly the ANC, in undertaking capacity building and development in South Sudan. In fact, the ANC has been sharing its experiences with the SPLM since independence. For example, in 2011 an ANC delegation was sent to Juba to assess the challenges facing the SPLM. The head of the delegation, Collins Chabane, had this to report:
We are working together to resolve… [post-conflict] challenges. As part of our efforts to promote post-conflict reconstruction in Africa, one of the ANC's major projects is the ANC-SPLM capacity sharing project. This
904 SPLM Constitution art 14 (3). 158
project involves sharing political and election experiences, as well as governance and administration experiences for a better South Sudan.905
It is unclear whether anything tangible has come of the said projects. However, it is good to see the ANC lending a helping hand to the SPLM, thanks to the goodwill of the ANC’s leadership. Indeed, the ANC could play an influential role in making sure the SPLM implements transformation as part of the R-ARCSS given it has representatives in the R-ARCSS process.
2.3.1 Linking the SPLM transformation to the peacebuilding process
Linking the SPLM’s political transformation to the R-ARCSS is vital for a number of reasons. It is likely to cement the success of the conflict resolution process as some people have argued. Paula Christina Rogue, for example, has argued that ‘[transforming] the SPLM is key to ensuring that any political agreement stands and stabilises South Sudan in the wake of its highly divisive civil war’.906
The problem is that the R-ARCSS does not give much attention to the SPLM’s internal reform. It only briefly mentions the DDR process (structural change) but pays no attention to attitudinal change. This is one of the weaknesses of the R-ARCSS. This thesis suggests that the SPLM’s internal reforms should be negotiated and incorporated in the R-ARCSS, so that it can be implemented as part of the R-ARCSS as a binding agreement. Attempting to implement the R- ARCSS without taking into account the SPLM’s internal reform would not meet the ultimate goal of consolidating peace and stability in South Sudan. The leadership succession issues within the SPLM will continue to recur and will likely derail peace if they are not addressed as part of the broader conflict resolution processes. Paula Rogue has emphasised this point most cogently:
[T]he focus must be geared towards addressing the internal dynamics of the SPLM and formally linking internal party reform to the wider peace process. States are built, institutions reconstructed and developments initiated, but without the organisational structure of a strong political party to manage the contradictory and volatile processes of nation building, all other initiatives will remain fragile.907
3. Conclusion
This final chapter of the thesis has focused on transforming the SPLM into a democratic political party. Two important changes−structural change and attitudinal change−are key to this evolution.
905 Baleka Mbete, The ANC and the SPLM Go Back a Long Way (12 July 2011) Politicalweb
The former speaks to the separation between the military and politics to create an independent military. Indispensable to creating an independent military is a reduction in the size of the military to make it financially sustainable. This initiative is generally carried out through a DDR process. The latter (attitudinal change) involves parting with a top-down military command system and adopting an inclusive and participatory decision-making process. It is the democratisation of a party’s decision-making process. On this point, the discussion draws on the experiences of the ANC, the only African liberation movement that has truly transformed itself into a massed-based political party.
To counter the very likelihood that the SPLM will not commit to this process, it must be linked to the implementation of the R-ARCSS, to make it binding on the SPLM, and thus more likely to deliver results. This evolution (transformation) is not a choice but an obligation for at least four reasons: (1) South Sudan was won from dictatorship – a victory achieved at too great a cost. Thus it is incumbent on the SPLM as a liberation movement to ensure dictatorship has no place in South Sudan; (2) it is in the public interest for the SPLM to serve the country in a genuine representative capacity – as a political party); (3) it is a precondition for durable peace and the development of constitutionalism and the rule of law; and (4) (as a self-interested incentive to change) it is the only guarantee for the SPLM’s long-term political survival.
Chapter 8 — Conclusion
South Sudan’s independence has been a mixed bag. On the one hand, independence was wholeheartedly welcome for a host of reasons. It brought an end to the civil war and decades-long subjugation of the Southern Sudanese (pre-independence people) to oppressive Arab rule, for example. It is hailed as ‘a dream come true’,908 reflecting the reality that the Southern Sudanese have been longing for a country of their own since the collapse of the Condominium administration in Sudan in the 1950s. On the other hand, independence has presented difficult challenges of governance for politically inexperienced war Generals, represented, in part, by the ongoing political crisis in the country.
This thesis has examined the political development of South Sudan, that is, the pre- independence and post-independence challenges of governance. The pre-independence issues pertain to the two destructive civil wars in Sudan: the first civil war (1955—1972) and the second civil war (1983—2005). Indispensable to this socio-political discussion is also the current civil war
908 Hilde F. Johnson, South Sudan: the Untold Story from Independence to Civil War (L.B.Tauris & Co. Ltd, 1st ed, 2016) 1. 160 in South Sudan, which has been equally destructive. The discussion is partly descriptive and partly analytical. The aim of discussing these events is to place this study within the socio-political context from which South Sudan emerged and to draw lessons for building a peaceful and democratic South Sudan. Drawing these lessons is also critical to ensuring history does not repeat itself, although, sadly, that is precisely what is happening in South Sudan. There are five lessons drawn from the historical events or the two episodes of civil war.
First, the devolution of power provided in the 1972 agreement between Southern Sudan’s rebels and the government of Sudan failed to deliver in terms of guaranteeing southern regional autonomy and promoting lasting peace in Sudan overall. Instead, President Nimeri became even more powerful by assuming all the power in Sudan. This rendered the SRSG (the then southern Sudan’s autonomous government) effectively powerless. The lesson here is that devolution of power carries with it many risks, particularly in countries where democracy is of little value or has not yet taken hold. An example of these risks is the tendency for the system to centralise. This is exactly what South Sudan has witnessed under its current Transitional Constitution. President Kiir, for example, exercises almost all powers under the Transitional Constitution. In particular, he has the power to dismiss state governors at will. It is important to guard against such unhealthy practices in the future political arrangement for South Sudan. One way to do this, as argued in Chapter 6 on federalism, is to establish the state governments as a separate level of government. This would encourage democratic politics in the country as the state governments would have to be elected directly by their respective people.
Second, President Nimeri pitted the southern leaders against each other. Apparently, this was his tactical way to maintain effective control over the Southerners’ political affairs (the divide and rule policy). As discussed in Chapter 2, this left the southern leaders to be perceived by their people as merely serving their own self-interests. It also deeply divided the Southerners along ethnic lines. These issues have a presence in South Sudanese politics today. For example, the South Sudanese political leaders are seen as fighting over positions in the government. They incite the members of their respective tribal communities to fight for them, but do so in a slick way—in the name of change, democracy and development. The only way to change this bad image is for the South Sudanese political leaders to provide a real leadership by delivering the dividends of independence: peace, unity, service delivery, infrastructure etc.
Third, President Nimeri unilaterally dissolved the SRSG in the 1980s, leading to the resumption of a full-scale civil war between south and north, among others. This parallels some of the authoritarian tendencies President Kiir has exhibited so far. For example, in 2015 he abolished the 161
10 states and created 32 states singlehandedly. As discussed in Chapter 3, the 32 states have also been abolished as part of the government’s peace concessions. The point here is that President Kiir’s unilateral acts have serious consequences for the country, just like President Nimeri’s decisions were. As such, there is a need for President Kiir to be conscious of these (unintended) consequences when taking particular political decisions, so that the past injustices are not repeated. A rational way, but not simple, to do this is for President Kiir to adopt an inclusive, consultative, and transparent decision-making process in governing the country. This is a possible, and perhaps the only, way to deal with the divisive issues in the country.
Fourth, the Sudanese government failed to fully reintegrate the Anyanya 1 combatants into its military. There may have been issues responsible for this failure. For example, there may have been a lack of resources to fully fund the process given Sudan was only a nascent state at that time. However, the failure to demobilise and reintegrate the Anyanya 1 combatants had severe consequences for the country, the resumption of the civil war being the obvious one. This situation can be paralleled with the SPLM’s failed demilitarisation as discussed in chapter 7 of this thesis. The importance of demobilising and reintegrating combatants into the South Sudanese military need not be exaggerated. It is critical to ensuring peace in the country, as well as creating a leaner military.
Fifth and finally, the CPA ought to remain as a reference point in the South Sudanese political development. It reminds us that durable peace is possible only through understanding and compromise. It mattered not how much the Southern Sudanese and the Arab north attempted to annihilate each other using modern weapons; it mattered not how long the war was fought. What mattered in the end was the realisation that a peaceful solution to the civil war was what was needed all along. This is a powerful lesson from history for the South Sudanese political leaders in view of their collective responsibility to resolve South Sudan’s ongoing civil war.
The post-independence frameworks and challenges canvassed in this thesis, and to which the historical lessons above have direct relevance, pertain to constitutional development in South Sudan. This is where the crux of this study lies. The thesis has critiqued the drafting process of the Transitional Constitution and the deficiencies this document contains. The drafting process was highly problematic due to the SPLM’s departure from the agreed process (as laid down in the 2010 All Southern Political Parties’ Conference). The thesis found that the departure from the process has had two serious consequences for South Sudan’s political development.
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The first is that it led to a failure of constitutional discourse in 2011 regarding the proper way to draft the Transitional Constitution. An example of this failure is the withdrawal of nearly all the South Sudanese opposition parties from the process, leaving the SPLM in control of almost the entire process. The second is a fundamentally defective document that resulted from the process. The defective nature of the Transitional Constitution, as discussed in Chapter 3 (Constitutional Development in South Sudan: Failure and Lessons), is evidenced in the concentration of power in the national executive and in its other provisions where the functions of the President and Parliament overlap, creating confusion.909 The concentration of power has created an environment unconducive to good governance or ideals like democracy, constitutionalism, the rule of law, judicial independence etc.
Beyond flaws in the transitional constitutional process, the thesis, in Chapter 4 (Roadmap to a Permanent Constitution for South Sudan: a Two-Step Process), critiqued the existing permanent constitution-making process, identifying many serious problems. One obvious problem is the President’s involvement in every step of the process. This offers little hope that the permanent constitution-making process will be different from the previous process both in terms of being inclusive and delivering the desired outcome, a democratic constitution, for example. Taking that into consideration, the thesis has proposed a different process or a roadmap to a permanent constitution. The roadmap is a two-step process.
The first step is an election of a constitutional assembly to lead the drafting process. Several factors justify having an elected constitutional assembly. One is the need to guard against elite capture of the process, and in particular the SPLM’s dominance. Elite capture is a serious issue in South Sudan that cannot be simply wished away. By placing the drafting process in the hands of an elected constitutional assembly, politicians, the people who have more at stake, are less likely to unfairly influence the process. In other words, an elected constitutional assembly is likely to be independent of the government than an appointed NCRC commission.
Another relevant factor is the legitimacy of a permanent constitution. Having a popularly elected constitutional assembly to draft a permanent constitution would give a permanent constitution the legitimacy it would need to be a respected and authoritative constitution. Part of having an elected constitutional assembly is to account for the fact that South Sudan’s current Parliament, including the President himself, is unelected and thus lacks popular legitimacy to draft a permanent constitution or to appoint a drafting constitutional commission. Both the President and Parliament’s tenure of office expired five or so years ago (in 2015), but they have yet to seek a new
909 Transitional Constitution arts 57 (d) and 101 (p). 163 mandate from the people of South Sudan. They have continued to be in the office by extending their terms through constitutional amendments, amendments which are arguably unconstitutional.
In terms of the process for electing this constitutional assembly, mixed methods are proposed. As explained, these refer to direct and indirect methods of election. They have been deemed appropriate because of the nature of the different stakeholders involved in the process, eg political parties, civil organisations, professional associations, and religious institutions. Direct method is suitable for electing representatives of political parties, whereas indirect method is suitable for the non-partisan groups, meaning they could appoint their representatives to the assembly. This method was trialled successfully in the 2005 Kenyan Constitutional Commission where the civil society organisations appointed their delegates to the NCC.
The second step in the proposed roadmap is a constitutional referendum. Like the proposed election of a constitutional assembly, two major factors justify having a constitutional referendum as a final step to the South Sudanese constitution-making. The first factor is popular sovereignty, which is the idea that people are the ultimate source of political power and thus should have the final word when enacting a constitution. Related to this is also legitimacy of a permanent constitution which, as discussed, a direct popular vote can provide. Without popular approval, a permanent constitution would lack authority to bind the South Sudanese.
The second factor in favour of a referendum is not much different from the first factor, but it is equally worth emphasising. It is the idea of popular participation in constitution-making. The rationale for this is that, because the people are not generally involved in the drafting process, a constitutional referendum gives the people a chance to partake in the process in the sense of making a judgment about the final draft. As discussed, popular participation in constitution-making is also an emerging legal right of people in international law. It is an aspect of the general right to self- determination. Both of these factors−popular sovereignty and popular participation in constitution- making−are said to instil in the people the sense of ownership of the constitution and responsibility to protect it against potential unprincipled power seekers. Regarding the votes to approve a permanent constitution, there is no precedent to follow. Different countries have used different thresholds, including absolute majority votes. This thesis has proposed two-thirds of the 10 states (6 states) and a majority of yes votes nationally to approve a permanent constitution.
Beyond constitution-building, the thesis has considered two substantive reforms. The first relates to the proper power-sharing arrangement to address the power imbalance between the national government and state governments. Chapter 6 (Federalism: Securing Greater Regional
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Autonomy in South Sudan?) has recommended dual federalism. Dual federalism would make South Sudan’s two levels of government coordinate.
This recommendation was arrived at after assessing the merit of ethnic federalism in which some South Sudanese seem interested. It is this thesis’ position that ethnic federalism is not suitable for South Sudan for a number of reasons. It has not had success in Africa. In Nigeria, for example, ethnic federalism served as a recipe for the disintegration of the country and was ‘abandoned and replaced with territorial federalism in 1967’.910 In Ethiopia, ethnic federalism has increased ethnic divisions in the country.911 The point here is that ethnic federalism is full of risks and it is not a realistic choice for South Sudan, considering deep-seated ethnic divisions in the country.
In recommending dualism federalism, the thesis has noted some of the concerns in the country. In particular, it has noted the government’s concern that federalism could result in another Kokora ethnic segregation. While the Kokora incident did result in the victimisation of innocent people, it is not rational to use it as a counter-argument against federalism. Kokora, which simply means to “share something” (as the Bari tribal society would understand it), is not the same as federalism. Federalism is a theoretical formulation and it serves to unify a people, among others. The government of South Sudan should look to this overarching objective purpose of federalism rather than being concerned with an arguably minor historical incident.
The second reform canvassed is transforming the SPLM into a democractic political party. This is discussed in Chapter 7 (Transforming the SPLM into a Political Party: a Precondition for Peaceful Democratic Politics in South Sudan). This is a complex process that requires adequate resources and political will. It involves structural and attitudinal changes. The first requires the separation of the military and politics to create an independent military, and a reduction in the size of the military to make it leaner. This is achieved through the DDR process where combatants (or a significant number of) are released from military service and integrated into the community as civilians. The latter involves democratising a liberationist movement to ensure it stays relevant to the people.
910 Luka Biong Deng, ‘The Federalism-Decentralisation-Peace Nexus in South Sudan’ in Luka Biong Deng Kuol and Sarah Logan (eds), The struggle for South Sudan : Challenges of Security and State Formation (I. B. Tauris & Company Limited, 2018) 4−5; Alemente G. Selassie, ‘Ethnic Federalism: Its Promise and Pitfalls for Africa’(2003) 28 (1) Yale Journal of International Law 51, 99−101. 911 Legesse Tigabu Mengie, ‘Ethnic Federalism and Conflict in Ethiopia: What Lessons Can Other Jurisdictions Draw’ (2015) 23 (3) African Journal of International and Comparative Law 462, 463-70; Wondwosen Teshome and Jan Zhaorik, ‘Federalism in Africa: The Case Ethnic-Based Federalism in Ethiopia’ (2008) 5 (2) International Journal of Human Sciences 1, 21; Mahmood Mamdani, The Trouble with Ethiopia’s Ethnic Federalism (3 January 2019) The New York Times
Overall, the thesis has argued that transforming the SPLM into a civilian government is an obligation for at least three reasons: (1) it is a strong popular demand, recalling political oppression the South Sudanese suffered for decades under the tyrannical Islamist government in Khartoum; (2) it is a precondition for durable peace, and development and maintenance of constitutionalism and the rule of law in South Sudan; and (3) it is the only guarantee for the SPLM’s long-term political survival.
This thesis has a special significance. It is, for example, the first to examine relatively comprehensively the issues of constitutional development in South Sudan and offer ideas for improving South Sudan’s governance system. Even so, the author anticipates criticisms. One criticism might be that the author is trying to export foreign ideas to South Sudan. However, we live in a globalised world, and South Sudan, whatever the ideological persuasion of its political leadership, is part of it. Opposing the author’s ideas on the basis of being foreign would lack basis because foreign ideas have a place in the country. For example, the Transitional Constitution is partly transnational. The Bill of Rights provisions in particular were borrowed from international human rights treaties. Hence, the reason the Transitional Constitution is called an ‘intermestic constitution’, to reflect its dual nature. The author is not concerned to prescribe foreign ideas for their own sake. He is being driven by the real need to create a more effective political order for this deeply troubled country.
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Chama Cha Mapinduzi, Intra-SPLM Dialogue: The Arusha Communique (Tanzania, 21 Januray 2015)
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Constitution of South Africa 1996 (SA)
Constitution of the Sudan People’s Liberation Movement 2008 (SPLM)
Constitution of the United States 1787 (US)
Entebbe Declaration on the Operationalization of the Arusha Agreement on the Reunification of the SPLM (Uganda, 2017)
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Agreement on Cessation of Hostilities between the Government of South Sudan and the Sudan People’s Liberation Movement/Army (In Opposition) 2014, Intergovernmental Authority on Development
Agreement to Resolve the Crisis in South Sudan 2014, Intergovernmental Authority on Development
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International Covenant on Economic, Social, and Cultural Rights, opened for signature 16 December 1966 (entered into force 3 January 1976) 993 UNTS 3
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Presidential Order NO. 02/2012 for the Establishment of the Constitutional Review Commission and the Appointment of its members 2012 A.D (RoSS)
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Presidential Decree No.08/2011 for the Appointment of Additional members from other Southern Sudan Political Parties to the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005 (17 February 2011) (RoSS)
Presidential Decree No. 09/2011 for the Appointment of Additional Faith-based Group Members to the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005 of (18 February 2011) (RoSS)
Presidential Decree No. 10/2011 for Appointment of additional members of the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005 (21 February 2011) (RoSS)
Republican Decree No.14/2013 for the Reduction and Re-Structuring of the Ministries of the National Government of… South Sudan, 2013 (RoSS)
Republican Decree No.49 for the Relieve of the Vice President of South Sudan, 2013 (RoSS)
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The Transitional Constitution of the Republic of South Sudan, 2011 (Amendment Act, 2015), extending the terms of the National Legislature and President from 9 July 2015 to 9 July 2018 (RoSS)
The Transitional Constitution of the Republic of South Sudan, 2011 (Amendment Act, 2018), extending the terms of the National Legislature and President from 9 July 2018 to 9 July 2021 (RoSS)
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The Manifesto of Sudan People’s Liberation Movement (Manifesto I) (31 July 1983) (SPLM/A)
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