Out of Time but Full of Enthusiasm? Assessing Progress and Hurdles in South Sudan’s Constitution-Making Process

With less than a year to the planned end of South Sudan’s transition period, few milestones have been reached in accordance with the timelines specified in the revitalized peace agreement. Necessary constitution-making legislation is now before the Transitional National Legislative Assembly, a welcome step forward, but the country still faces considerable security challenges, political fragmentation, and deep mistrust amongst communities, which may impact the ‘permanent’ constitution-making process that is meant to lead to elections. Will the parties seek an extension of the timeline, or pursue elections ahead of finalizing the new constitution? - writes Dr. Joseph Geng Akech 

Introduction

South Sudan has been in transition, which is expected to end with the adoption of a new constitution, as necessary for the organisation of elections in 2023. Nevertheless, with deadlines fast approaching, the transition activities have been severely delayed, and the constitution-making process has effectively stalled. In this context, this piece surveys the plan and the few milestones achieved, and discusses different scenarios for next steps, including a potential extension of the timeline specified in the revitalised peace deal, abandonment of the timeline (and potential collapse of the constitution-making process), or delinking of elections from a new constitutional design process.

Background: What was supposed to happen?

Founded in 2011, the Republic of South Sudan is governed under a provisional document, the Transitional Constitution. The country was supposed to adopt what is referred to as the ‘permanent’ Constitution prior to holding national elections by 2015. That did not happen. Instead, violence sparked in December 2013 and again, after a short lull following a peace agreement, in July 2016, and threw the country into severe political unrest, violence and ethnic division. The civil war also terminated the constitution-making process that had commenced in 2012 under the Akolda Commission. The constitution-making process was revived through the 2018 Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS), which was signed between warring parties and other political forces. The R-ARCSS mandated the establishment of a Unity Government (formed in 2020) and a transitional period to last until 2023. It further stipulates distinct parameters, processes and stakeholders to be involved in the design of a 'permanent' constitution. In brief, the process is as follows:

First, the R-ARCSS stipulates a consultative workshop of parties to agree guidelines towards legislation to steer the ‘permanent’ constitution-making process. Consequently, pre-consultation meetings and workshops for the parties were held in 2021, and the outcomes led to the Ministry of Justice and Constitutional Affairs drafting the Constitution-Making Process Bill (CMP) in 2021.

Second, once enacted, the legislation would be the basis for reconstituting and establishing constitution-making institutions and mechanisms. The institutions of the constitution-making process are the National Constitutional Review Commission, Constitutional Drafting Committee (provided for in the draft bill, not R-ARCSS), Preparatory Sub-Committee for the National Constitutional Conference, the Conference, and the Transitional National Legislative Assembly serving as a Constituent Assembly.

Third, under the draft bill, the Constitutional Drafting Committee is mandated to lead the constitutional drafting process whereas the National Constitutional Review Commission is to lead public consultations and civic education, and transmit public inputs and submissions to the Drafting Committee. The draft constitutional text is to be adopted by the National Constitutional Conference before it is presented to the Constituent Assembly for adoption and ratification. Article 6.11 of the R-ARCSS states that the ‘permanent’ constitution is to be adopted on the 1st date of the 27th month of the transition by a Constituent Assembly after which the Assembly would be dissolved and elections organised.

Other than the constitution-making workshop for the parties, no milestones have been achieved in accordance with timelines specified under the R-ARCSS.

The final constitutional text is to be promulgated by the president in an expectedly open public event. So far, less than a year to the planned end of the transition period, other than the constitution-making workshop for the parties, none of these milestones have been achieved in accordance with timelines specified under the R-ARCSS.

That said, slight progress on the constitution-making process has been made, as outlined below.

Taking stock of progress to-date

The following milestones on constitution-making process have been achieved:

First, there is unanimous consensus among parties on the constitution-making legislation. This consensus was attained in the parties’ workshop held in 2021 to deliberate on issues surrounding the bill to guide the constitution-making process. In particular, parties agreed that an expert group—referred to as the Constitutional Drafting Committee—should be appointed by the National Constitutional Review Commission. Members of the Constitutional Drafting Committee are to be recruited through a competitive process based on qualifications and experience in constitutional law, political science and other relevant merits.

Second, the parties’ consensus led to the drafting of the Constitution-Making Process (CMP) Bill by the Minister of Justice and Constitutional Affairs, which outlines the constitution-making stages and mechanisms as stipulated under the R-ARCSS.

Third, the CMP Bill has been tabled before the reconstituted Transitional National Legislative Assembly (TNLA) in accordance with article 6.3 of the R-ARCSS, which states that “the reconstituted TNLA shall […] enact a legislation to govern the constitution-making process.” Once enacted, the Bill shall be the basis upon which all institutions of constitution-making would be established.

Challenges: Why has progress stalled?

The constitution-making process is being undertaken at a time of severe political, social, economic and security instability. Furthermore, the process is being steered by a consociational government—the Revitalised Transitional Government of National Unity (RTGoNU)—which lacks consensus on certain critical reform agendas introduced by the R-ARCSS. For instance, there is limited progress on security sector reforms, transitional justice, and legislative and institutional reforms, which are pertinent to the constitution-making process. These challenges and other complexities may be responsible for the slow progress of the constitutional design process as per the timeline in the R-ARCSS. From this standpoint, constitution-making appears not to be a priority of the two principal parties: The Sudan People’s Liberation Movement–in Government (SPLM-iG) and the Sudan People’s Liberation Movement–in Opposition (SPLM–iO).

Another dilemma is the lack of commitment from the consociational government already struggling to deliver basic social services...

While the legislation for constitution-making has been tabled before the TNLA and might be passed in the next three months, many dilemmas, and intricacies stand in the way of the ‘permanent’ constitution-making process. In particular, the country still faces considerable security challenges, political fragmentation, deep mistrust amongst communities of South Sudan, and the possibility of economic collapse. Another dilemma is the lack of commitment, emanating from a consociational government which is already struggling to deliver basic social services and to secure the country’s stability. In addition, displaced peoples and refugees are yet to be returned, security reforms yet to be completed, and a climate of fear and intimidation characterises the political environment in the country.

What’s next? Scenarios and speculations

The importance of adopting a ‘permanent’ constitution cannot be emphasised enough. Since independence, the country has yearned for a constitutional framework built on consensus. This is essential for peacebuilding and for the country’s democratisation prospects. Nevertheless, the parties to the R-ARCSS appear to deliberately delay implementation of key aspects of the R-ARCSS such as the constitution-making process, transitional justice, and critical legislative reforms. The reasons for delay are manifold, including a lack of political will and financial constraints. The milestones highlighted above are insignificant progress on the constitution-making process as a whole. The challenge now is that time is evidently running out, but there is a general enthusiasm to adopt a participatory constitution. Time constraints and other challenges have led some scholars and political analysts to speculate that an extension of the R-ARCSS transition timeline may be necessary.

• Extension of the R-ARCSS to gain more time

The most probable scenario is that the parties, stakeholders and international guarantors are likely to support extension of the R-ARCSS by a further two to three years, before the lapse of the transition period. Any extension would however need consensus amongst these and other stakeholders. An extension would possibly permit implementation of remaining tasks such as adoption of the ‘permanent’ constitution. Furthermore, the extension might be justified on the grounds that unless a permanent constitution is promulgated, elections cannot be held since the conflict has roots in constitutional failure, amongst others. If an extension is granted, the RTGoNU would need to develop a plan of action with clear deliverables on the ‘permanent’ constitution-making process. However, the parties might agree to call for early elections before promulgating the ‘permanent’ constitution in the unlikely event that this route is not taken.

• Separate elections from the ‘permanent’ constitution-making process

Some scholars argue that owing to time constraints and the need to ensure a popular and legitimate constitution, the parties should separate the constitution-making process from elections. They contend that elections may be held if the RTGoNU implements certain fundamental reforms including minor constitutional reforms, law and institutional reforms, return and resettlement of internally displaced persons and refuges and registration of political parties. This proposal is likely to be supported by some opposition groups except SPLM–iO which wants a constitution adopted before elections. This perspective is premised on the contention that conflict in South Sudan is a result of a constitutional failure and it thus requires a new constitutional dispensation including implementation of a federal system of government, amongst others.

Those who view the Transitional Constitution as a failure might not take part in elections, risking a return to conflict.

The consequence of separating elections from constitution-making is that those who view the Transitional Constitution as a failure might not take part in elections, risking a return to conflict. It is also argued that the elected positions would need to be defined in a new constitution before elections can be held. Key international partners–United States, United Kingdom, and Norway—insist that the R-ARCSS conditions must be met for elections to take place. Since the necessary conditions (peace, security, resettlement of refugees and returnees and law reforms) to permit holding of  fair, credible and transparent elections do not exist, discussion continues on the minimum standards required for legitimate elections.

Conclusion

Despite the slight progress made, the constitution-making process in South Sudan suffers from time constraints, economic decline, and security and political instability. It appears also that the principal parties are tactically looking for opportunities to knock each other out before the Transitional Period ends, which can lead to either acceleration or abandonment of the constitution-making process. Post-conflict constitution-making (such as in South Sudan) takes place after a post-conflict arrangement such as power sharing and reforms. This makes it a delicate process that requires broad-based participation of all stakeholders, peoples and political forces for there to be consensus amongst various actors. Thus, a constitution-making process should not be rushed and barriers that might impair effective participation of people, political parties and civil society need to be addressed. This requires a constitution-making process to be launched in an atmosphere of calm, thus allowing everyone to participate and be heard. There is also a need to put in place mechanisms of dispute resolution such as the Constitutional Court and the Political Parties Council, among other oversight institutions. These institutions and mechanisms would be needed to strengthen consensus, provide clarity, and resolve certain disputes around the constitution-making process.

Dr. Joseph Geng Akech is a South Sudanese independent researcher in constitutional designs, human rights and governance.

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