South Sudan’s endless transition: The illusive search for a “Permanent” Constitution

Reeling under the weight of a civil war, South Sudan looks to finally break the cycle of transition and adopt a Permanent Constitution. While the latest roadmap anticipates an inclusive constitution reform process, the failings of previous reform processes call for a guarded optimism – writes Dr Miamingi.

Introductory remarks

It is becoming increasingly clear that one of the habits the Government of South Sudan inherited from the Republic of the Sudan relates to how to sustain a permanent process of constitutional reform. From its independence in 1956 to the breakup of the country in 2011, the Sudan went through several major constitutional reform processes, and is governed through the 2005 Interim Constitution. Following in the footsteps of the Sudan, in its attempts to change constitutions, South Sudan is fast becoming a country engaged in an endless journey in search of a “Permanent” Constitution.

Between 2005 and 2015, South Sudan has already undergone two main constitutional reforms. It is currently undergoing its third constitutional reform process – translating into an average of a constitutional reform process every three years. In 2005, the Interim Constitution of South Sudan (ICSS) came into force. Following the overwhelming vote to secede from the Sudan in July 2011, the Interim Constitution was replaced with the Transitional Constitution of South Sudan (TCSS).

South Sudan is currently reeling under a civil war which followed a split within the ruling South People’s Liberation Movement (SPLM) in 2013. The civil war has now come to a negotiated end in August 2015, mainly under the auspices of the Intergovernmental Authority for Development (IGAD). As part of the 2015 Agreement on the Resolution of the Conflict in South Sudan (2015 Peace Agreement), South Sudan is currently undergoing a constitutional reform process. According to the timeline in the Agreement, the outcome of the current constitutional review is expected to be another Transitional Constitution in 2016. This Transitional Constitution is expected to be replaced by a Permanent Constitution in 2018. The Permanent Constitution is required to be in place to guide the elections towards the end of the transition.

The first wave of constitutional reform in South Sudan

The Comprehensive Peace Agreement (CPA) that brought to an end the war between North and South Sudan also created an interim period wherein the Sudan was governed on the basis of one country, two systems. Under this arrangement, Southern Sudan was granted regional autonomy, pending the results of a referendum on self-determination in 2011. The ICSS constituted the basis of governance between 2005 and 2011. Even though the provisions of the ICSS were subsidiary to the Interim National Constitution of the Sudan, the ICSS was, for all intents and purposes, a Constitution for a country-in-waiting. Indeed, when South Sudan became an independent country in July 2011, it simply transformed the ICSS into the TCSS.

The process that led to the adoption of the ICSS and the constitutional transition from the ICSS to the TCSS were, unfortunately, mismanaged and exclusive with dire consequences for the country.

The ICSS was more a constitutional framework for an agreement between the parties to the then civil war in the Sudan. The bilateral nature of the process of adoption of the ICSS was manifest in that both the members of the Southern Sudan Constitutional Drafting Committee that worked on the texts of the ICSS and the Southern Sudan Legislative Assembly that adopted the ICSS were predominantly members of the SPLM. Consequently, the making of the ICSS, rather than being a national consultative process, was basically a military-political party undertaking.

Although time constraints may have informed decisions to move quickly and in this fashion, the process was inherently flawed as the drafters of the ICSS intended it to eventually become the Constitution of the Republic of South Sudan. Indeed, the ICSS provided that “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 …”

The culture of constitutional reform in an atmosphere of exclusivity, devoid of public participation and scrutiny was continued during the making of the TCSS.  The first Technical Review Committee appointed by the Government a few days after the independence referendum to undertake the review of the ICSS was predominantly composed of members of the SPLM. Although the President yielded to pressure to involve more stakeholders and appointed additional members to the Committee, it did not undermine the dominance of the SPLM affiliated members.

When pressured further, the Government’s response was it was undertaking an amendment and thus a technical review process, rather than a constitution-making process that needed wider participation, and that such participation will occur in the adoption of a permanent constitution. Nevertheless, if the TCSS was an amendment to the ICSS, then the amendments were unconstitutional as they did not follow the procedures established in the ICSS. The Government’s explanation that the transition to the TCSS was simply a technical review process was a pretext for the ruling party to single-handedly make a new constitution for South Sudan.

Overall, the first waves of constitutional change in South Sudan were undertaken by the Government, for the Government in power.

The second wave of constitutional reforms – a journey in search of a Permanent Constitution

The TCSS was meant to be in force only during the transition period. There were, however, a few significant problems with this transitional period. Firstly, the transitional period was not anticipated under the CPA or the ICSS. It was the creation of the TCSS itself. Secondly, the transitional period had no definite constitutional end. The TCSS provided only that the transitional period would start on 9 July 2011 without stating when it will come to an end. The TCSS was to “remain in force until the adoption of a permanent constitution.” There was, therefore, a possibility that the transitional period could have, constitutionally speaking, lasted for a very long time, and it did.

The TCSS did, however, provide for a clear and inclusive roadmap for the making of a Permanent Constitution. This roadmap consisted of:

• The appointment by the President of a National Constitutional Review Commission to collect and incorporate the views of South Sudanese into a draft constitution;
• The establishment of a National Constitutional Conference by the President to discuss the draft Constitution, and to approve and submit the draft text to the President;
• The presentation of the draft Constitution by the President to the Parliament for deliberation and adoption; and
• The presentation by National Legislature of the adopted Constitution to the President to put it into force.

Commendable as the above outlined roadmap to a Permanent Constitution might have been, the constitutional making process suffered from the same defects as those before it. Firstly, what is noticeable is the central and dominant role of the President. The process starts and ends with the President. Secondly, the members of the Constitutional Review Commission were predominantly members of the ruling party. The Commission was grossly underfunded and the Government’s dealing with the Commission was in complete disregard of the constitutional guidelines provided for in the roadmap. It is reasonable to deduct from the way the Government conducted itself in the process of this constitutional change that it was really not ready to undertake a truly participatory constitutional making process. The outbreak of a civil war in December 2013 brought the implementation of the roadmap to an abrupt end.

From a permanent constitution making process to another transitional constitution

It is debatable whether the faulty processes of constitutional changes in South Sudan contributed to the level of frustration that led to the outbreak of the civil war in the country. It is arguable, though, that the centering of the different constitutions around the President; the vesting of excessive powers in the President; and the President’s disregard for constitutional provisions that constrained his powers partly contributed to the causes of the conflict. One indication of this is the fact that constitutional reform was central to the negotiations that brought the war to a formal end.

As part of the packages in the 2015 Peace Agreement, the parties to the conflict agreed that a National Constitution Amendment Committee would be established. The mandate of the Committee includes the review of the TCSS and the submission of proposals for amendments to incorporate the Peace Agreement into the TCSS. However, like the previous constitutional processes in South Sudan, all the eight members of the Committee, with the exception of the two representatives of IGAD, are representatives of political groups (two each representing the government and the armed opposition, and one each representing former political detainees and other political parties).

The work of this Committee has been suspended mainly due to disagreement over by-elections for vacancies of the members of the Parliament that may occur during the Transitional Period; provisions dealing with the chairing of the first session of the Parliament in the Transitional Period; the appointment and numbers of Presidential Advisers; and on the number of states South Sudan should have. The discussion over the number of states has been complicated by the unilateral declaration of the Government to increase the number of states from the current 10 to 28 – which an opposition alliance has challenged as unconstitutional. The Government has proposed to submit the issue of the number of states to a referendum.

Due to the challenges with the constitutional review process, there is an on-going discussion of proceeding to form a Transitional Government on the basis of the Peace Agreement and in the absence of a Transitional Constitution - de facto suspending the TCSS. The structure and composition of the Legislature and the Executive are significantly different in the TCSS and the Agreement. Moreover, the powers of the President under the TCSS are significantly less than those provided for in the Agreement.   

The most progressive aspect of the 2015 Peace Agreement dealing with constitutional change relates to the process of making a Permanent Constitution. The Agreement provides for a people-led and -owned constitution-making process and limits the hitherto dominant role of the President. If implemented fully, this roadmap appears to have taken into account the lessons from the mistakes of the past. The Agreement provides for a four-stage process:

• Enactment of legislation by the Transitional National Legislative Assembly that will govern the constitution making process;
• Appointment by the Executive – which is composed of the representatives of all the major political actors - of an all-inclusive National Constitutional Review Commission to consult, collect and incorporate views of citizens and other non-political actors into the draft Constitution. The extent to which this Commission will draw on the works of the previous Review Commission remains unclear;
• Presentation of a draft Constitution prepared by the Review Commission to a National Constitutional Conference composed of elected representatives from all levels of administrations and registered institutions – which may include non-political civil society groups - as will be provided for in the legislation;
• Adoption of the Constitution by the Conference; and
• Presentation of the Constitution to a Constituent Assembly for deliberation and adoption. The Transitional National Legislative Assembly will transform itself into a Constituent Assembly for the purpose of passing the Constitution.

The details of these four stages will be outlined in an enabling legislation that will be passed by the Transitional National Legislative Assembly. The Transitional National Legislative Assembly will be fully constituted and functional once the Transitional Government of National Unity is formed.

While the roadmap seems promising, the notable patterns emerging from the experience of South Sudan in constitution making call for a guarded optimism. Firstly, the process was mainly triggered by external factors, notably the civil war and negotiated agreements and thus carried out on an ad hoc and reactive basis. Secondly, the processes, so far, have been exclusive, overly political party driven and designed to protect the interests of the political class. Thirdly, even though the TCSS provided for a robust and inclusive constitutional making process, it was chronically delayed and ultimately suspended due to outbreak of the civil war. Fourthly, none of the changes so far have followed constitutionally laid down procedures – as reflected in the formation of 18 new states through a presidential decree.

Conclusion

Constitutional reform processes in South Sudan have been undertaken in an environment completely devoid of public participation and scrutiny. The processes so far have been led and owned by the President for the President and his cohorts. Where there has been some limited form of participation in the constitutional making process, it has been by a select few political actors with little or no contribution from the public.  Disregards for participatory constitution making have cost the country dearly.

The constitution making experiences of South Sudan demonstrate some level of correlation between constitutional reform processes and conflicts – conflict leads to a constitutional reform process that in turn leads to another conflict because the process and outcome of the constitutional reform is perceived by many to be exclusive. The correlation between a history of constitutional instability and national instability should provide lessons for anyone interested in peace and nation building in post-conflict states. Any process of constitutional change that excludes citizens merely because it is politically expedient to do so is in the long run a recipe for conflict, no matter how temporarily successful it might seem. 

In demanding an inclusive constitutional reform process, the political actors involved in the drafting of the 2015 Peace Agreement seem to have drawn positive lessons from the failures of the previous processes in the making of the ICSS and the TCSS. Although the latest reform process does not anticipate a referendum to approve the final constitution, it will involve the participation not only of the political class but also civil society and the people at large. If the constitutional making process outlined in the Agreement is adhered to, there is a good chance that South Sudan might at long last have a Permanent Constitution that benefited from public participation and inputs. Nevertheless, the rocky start to the formation of the Transitional Government of National Unity and the disruptions to the activities of the Constitutional Amendment Committee raise significant questions on the willingness of the political actors to agree on an acceptable Permanent Constitution for South Sudan.

Dr. Remember Miamingi is a South Sudanese lawyer based in South Africa. Opinions expressed in this piece are solely that of Dr Miamingi and should not in any way be ascribed to any organization he is affiliated to.