South Sudan’s Interim Constitution and the Challenge of Transition
by Christopher Zambakari
Less than three years after securing its independence in a celebrated referendum in 2011, South Sudan erupted into a civil war in December 2013. Since then,tens of thousands of people have been killed and over 2.5 million internally displaced or forced into neighboring countries as refugees. The root causes of the crisis are a combination of historical factors such as the legacies of previous civil wars (1955-72, 1983-2005) along with more recent factors including the failure to reform the political party and professionalize the Sudan People’s Liberation Army, the failure to democratize the political process, and the beginning of the process of national reconciliation. The recent crisis has undermined previous efforts at reconciliation and opened new wounds. The failure to build a national army and demobilize and reintegrate former combatants made it possible for the army to split soon after the political crisis and set in motion a conflict waged along ethnic lines.
A peace agreement was brokered in August 2015 by The Intergovernmental Authority on Development, however there are still several problems with the Transitional Constitution of the Republic of South Sudan (TCRSS) which was put in place in 2011 ahead of South Sudan’s independence. It is important to review what were the problems with the TCRSS and lessons that can be learned in light of the upcoming transition to peace which should culminate with a permanent constitution and general election.
There are several provisions of the TCRSS that are causing great concern to civil organizations and the various political forces in South Sudan. These include the lack of a term limit for the president, the lack of a clear process for developing a permanent constitution, the centralization of power, the distortion of the structure of parliament, the expansion of the National Legislature’s membership, and the denial of judicial autonomy for state organizations.
The TCRSS has been widely criticized for delegating excessive power to the president and the executive branch. It has no term limit for the president, has resulted in a weak parliament incapable of checking executive powers, and stripped states of key autonomies from the federal government. The executive branch has relied on presidential decrees to circumvent the legislative process and rule with impunity. The recent unconstitutional creation of 18 new states, the dissolution of the government in 2013, the removal of elected officials from office, and other such examples of egregious exercise of power have greatly undermined the autonomy of the states as well as the hope for a true federal system in South Sudan.
Though the Permanent Constitution Process is outlined in the TCRSS, the Constitutional Review Commission and the National Constitutional Conference that draft and approve the permanent constitution are both appointed by the president, tilting the balance of power in favor of the executive and making the process less representative of the will of the people.
Whereas a separation of powers is meant to enable checks and balances and requires state governments to be granted autonomy in legislative, judicial, and executive matters, Article 162 of the TCRSS, which establishes the legislative and executive organs of state government, denies state governments’ judicial powers, thus restraining their autonomy andcontravening federal principles. Without granting autonomy through the devolution of power, the functioning of state is greatly restricted, denying them any degree of independence from the federal state.
Two other issues worth discussing are the oversized parliament and the larger number of ministerial portfolios. The TCRSS introduced an upper chamber of parliament whose members are elected by the respective assemblies of the 10 states. There are also 20 ministries whose functions often overlap. The current bicameral National Legislature (Legislative Assembly and Council of States) consists of 332 seats in addition to the 50 seats added by the Council of States. One of the functions of the Council of States is to legislate on the decentralized system of government and federalism. South Sudan already boasts the best ratio of members of parliament to the population in the region, 42.4 for every million inhabitants. The recent creation of 18 new states through another presidential decree will likely expand the size of the legislature and an unnecessary bureaucracy. The TCRSS does not grant the executive powers to change borders by nearly tripling the number of states. These powers belong to the Council of States in the parliament. The act of decentralizing through an executive order only strengthens the executive branch and excludes the public and transparent deliberation on national issues, while weakening state organs and circumventing legislative procedures.
The lessons from successful and unsuccessful transitions inform us that the process and context of political transition matters. South Sudan should develop a system of governance rooted in its socio-historical context—one that responds to its needs. Key stakeholders should be prioritized through an inclusive process that allows all relevant actors to shape the outcome. The parties to the peace agreement have the difficult task of implementing inclusive democratic processes and bringing diverse ethnic groups into the national framework to create a unified state.
Going forward, there are three requirements for South Sudan’s transition: the inclusion of key stakeholders, the participation of the population through popular consultation, and a comprehensive and holistic approach that addresses the root causes of the conflict. This includes the resumption of the constitutional process that began with consultations of community members but was abruptly terminated before the crisis. Whereas inclusion improves the legitimacy of the process, participation guarantees durability. This entails organizing and strengthening of key local stakeholders, large and small, in the transitional process to ensure equal participation of voices in shaping the process itself.
About the Author
Christopher Zambakari is Founder & CEO of The Zambakari Advisory. He is a Doctor of Law and Policy, Board Member of the Sudan Studies Association (SSA), and a Rotary Peace Fellow. He is based in the School of Political Science and International Studies at University of Queensland, Australia. His area of research and expertise is policy development that ensures political stability and socioeconomic development, and his interests include modern political and legal thought, governance and democracy, the rule of law, postcolonial violence, and nation-building projects in Africa. His work has been published in law, economic, and public policy journals.