What Does Extension of the Transition Period Mean for Constitution-Making in South Sudan?

South Sudan has recently extended its transition period by two years. Despite progress—such as establishing key institutions like the National Election Commission and passing significant legislation—the extension raises questions about the impact on the “permanent” constitution-making process. While the extension could allow for more robust public engagement, political consensus-building on contentious issues, and more in-depth discussions on technical matters, concerns persist about whether these goals can be achieved within the new timeline. The continued extension therefore presents both opportunities and challenges for South Sudan's journey toward peace, stability, and democratic consolidation – write Peter Garang Geng and Joseph Geng Akech

In September 2024, South Sudan extended its transitional arrangement by two years through an amendment to its transitional constitution, effectively postponing elections for the third time. This piece provides an update on constitutional reform efforts in light of the extended transition period and discusses the potential impact on the making of the “permanent” constitution.

Recent Developments –– A Synopsis of Progress and Challenges

The Revitalised Agreement on the Resolution of Conflict in South Sudan (R-ARCSS) signed in 2018 has faced numerous challenges in its implementation. Delays led to the first extension of the transition period for 24 months from August 2022 to December 2024 (previously analysed on ConstitutionNet). It was hoped that additional time would enable the Unity Government to fully implement the necessary provisions for fostering a more stable environment to hold credible elections. Some noticeable progress was made, including the establishment and operationalisation of key institutions such as the National Election Commission (NEC), National Constitutional Review Commission (NCRC) and Political Parties Council (PPC). Key legislation was also passed, including the Constitution-Making Process Act 2022, Political Parties Act 2012 (Amendment) Act 2022 and the National Bureau of Statistics Act 2018 (Amendment) Act 2024, among others. Further, 2023 marked the first deployment of unified armed forces made up of former armed fighters and government troops.

Progress instilled a general belief that elections could be scheduled in line with the end of the transition period . . . 

This progress instilled a general belief that elections could be scheduled in line with the end of the transition period, with the NEC announcing in July 2024 that elections would be held in December 2024 as stipulated by the peace agreement. This announcement was, however, received with scepticism: some stakeholders believed that the NEC may not have fully grasped the task of holding an election owing to the operational and financial challenges it was besieged with.

In addition to the logistical challenges of holding elections, some parties to the R-ARCSS—especially the Sudan People’s Liberation Movement in Opposition (SPLM-iO)—voiced concerns that certain aspects of the peace agreement were indispensable prerequisites to holding elections. These preconditions, they contended, included the adoption of a "permanent" constitution and the graduation and deployment of the rank-and-file members of all former rebel forces into the national army. They also claimed that the timing and political conditions surrounding elections were not favourable.

On the contrary, the SPLM mainstream maintained that elections were possible and should be held as planned. To buttress its position, the SPLM nominated and endorsed President Salva Kiir as its flag bearer, signalling readiness to go to the polls. The SPLM’s argument was that elections are a democratic right of the people and should not be delayed, because further deferral could risk perpetual transition. To actualise the SPLM’s intent for elections, the government disbursed funds to operationalise election-related institutions. Among the key institutions funded included the National Election Commission (NEC), the Political Parties Council (the PPC) and the National Bureau of Statistics (NBS).

While elections discussions were ongoing, the end of transition period was fast approaching and the government was soon faced with another conundrum: extend the transition period by 22 September 2024 or prepare to dissolve the national and state governments and legislatures, as required under the law on elections (sec. 16(2), as amended), and prepare for elections.

Owing to the foregoing realities and in order to maintain peace and political stability, President Salva Kiir Mayardit, on the recommendation of the parties to the R-ARCSS, reluctantly agreed to extend the transition period for another 24 months and postponed general elections until December 2026. The extension received consent from the Revitalized Joint Monitoring and Evaluation Commission (R-JMEC) and was ratified by the National Legislative Assembly as required under Article 8.4 of the peace agreement and Article 199 of the Transitional Constitution (as amended). The grand aim of the extension is to allow for necessary preparations to complete essential milestones in the peace agreement, bringing on board holdout groups, engaging all stakeholders, and ensuring meaningful public participation in the constitution-making process. This series of actions is crucial for democratic consolidation, peacebuilding and political stability in the country. But what are the potential implications of extending the transition period for the “permanent” constitution-making process?

Does the Extension Impact the Constitution-Making Project?

There are mixed perspectives on how the continued extension of the transition period may impact peace, stability and democracy. This extension is equally a “mixed-bag” for constitution-making, a key aspect of the peace agreement that is extensively outlined in Chapter Six. Under the peace agreement, the Unity Government is mandated to enact legislation guiding the entire process. It is in this context that the Constitution-Making Process Act 2022 was enacted, providing for mechanisms and stages of constitution-making. These include the National Constitutional Review Commission (NCRC), Constitutional Drafting Committee (CDC), Preparatory Committee for the Constitutional Conference, National Constitutional Conference (NCC) and the Constituent Assembly. At the time of writing, only the NCRC had been formed. It is worth noting that the NCRC has already started its work, including conducting several induction workshops and formulating its working documents (rules of procedure, budget and a work plan), among other foundational tasks. That notwithstanding, much is expected from the NCRC in the extended transition period if it is to deliver on its mandate of finalising the “permanent” constitutional text by December 2026, when the transition period will elapse.

Stakeholders Involved in Constitution-Making

Constitution-making is a process that ordinarily involves an array of stakeholders, actors and citizens. In the case of South Sudan, parties to the peace agreement, civil society, faith-based organisations, political parties, citizens and international organisations are all enjoined to be involved. This is to ensure that the process is people-driven, pluralistic and inclusive of all stakeholders concerned with governance, rule of law and human rights in South Sudan.

Having discussed the mechanisms and stakeholders involved in constitution-making, we now turn to the question of how the extension may impact constitutional reform. In the authors’ view, additional time that comes with the extended transition period may allow for:

More robust engagement of the public

Some scholars have long argued that constitution-making should not be rushed and that it is not a race against time. They emphasize the importance of deliberation, cautioning that rushed processes may potentially weaken legitimacy by failing to adequately include stakeholders and thoroughly address key issues. A rushed process might lead to inadequate deliberations and consequently to poor institutional design thus potentially impacting resulting constitutional outcomes. While this view is true, others may argue for speed in certain contexts, especially if doing so would reduce power vacuums, stabilize the country, and prevent disillusionment of the people and derailment of the process due to perpetual transitional arrangements.

More time, however, does not in itself result in robust engagement of the crucial stakeholders—the people—in the constitution-making process . . .

More time, however, does not in itself result in robust engagement of the crucial stakeholders—the people—in the constitution-making process. The NCRC and the parties to the peace agreement will need to be intentional in their outreach to the people because it is hoped that the more people are engaged, the more inclusive and legitimate the resulting constitution will be, ideally birthing political stability.

Political consensus could be built on contentious issues 

Constitution-making is not without disagreements among political actors involved in the process. Aspects such as federalism and resource distribution have already attracted divergent views with opposition generally appearing to favour federalism, often with limited or inadequate objective assessment of its operational implications in the face of persisting challenges like tribalism, resource limitation, weak institutions and absence of civil culture of politics. On the contrary, the government appears to lean towards enhanced decentralisation, arguing that a devolved system could better serve the country. These divergent perspectives could be harmonised during the extended transition period, thus, offering an opportunity for political parties and stakeholders to dialogue, compromise, and reach a common position.

Quality discussion on technical issues

The initial timelines for making the “permanent” constitution were already tight, thus limiting the quality of engagement and discussions that would be expected for such an important grundnorm-founding document—the constitution. The additional 24 months will permit the stakeholders to dive deeper into critical conversations around the nature of the state South Sudan should be, and the division of power and resources, among others.

Is It All Positive? Some Concerns About the Continued Extension

Although the extension has been welcomed by some stakeholders, there are concerns among South Sudanese and international community about whether the Unity Government will utilize the “extra time” to make necessary preparations pertaining to the constitution-making process and hold elections on time. These concerns are not merely speculative as they are also premised on the authors’ cumulative research on constitution-making in South Sudan. The following concerns may be raised:

• —Is it possible for South Sudan to have a “permanent” constitution within two years of the extended period? What would be required to achieve this target?
• —Assuming all other factors remain the same, what would be a realistic timeline for the constitution-making process following the extension?
• —What are the proposed milestones, and how will they be monitored?
• —How will past experiences inform the current process under the new extension to avoid previous pitfalls?

Concluding Remarks

While the extension of the transition period aims to create a more conducive environment for peace, the ongoing complexities surrounding this continued extension could lead to a variety of outcomes. The extension has both negative and positive implications for constitutional reform, with the commitment of the involved parties influencing which outcomes may prevail.

Peter Garang Geng is a practicing Advocate and holds Masters of Laws in international law from Shadra University, India. He is a lecturer at the School of Law, University of Juba. He can be reached on e-mail: garanggengakot@gmail.com

Joseph Geng Akech is the Minister of Youth and Sports in the Revitalised Transitional Government of National Unity (RTGoNU), South Sudan and an Assistant Professor of Law at the University of Juba. He holds Doctor of Laws in constitutional law from the University of Pretoria, South Africa. He can be reached on e-mail: josephgakech@gmail.com

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Suggested citation: Peter Garang Geng and Joseph Geng Akech, ‘What Does Extension of the Transition Period Mean for Constitution-Making in South Sudan?’, ConstitutionNet, International IDEA, 1 November 2024, https://constitutionnet.org/news/voices/what-does-extension-transition-period-mean-constitution-making-south-sudan

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Views expressed in this article are authors’ own perspectives as academics.