BY: SINDANI IRENEAUS SEBIT, NAIROBI, KENYA, MAR/13/2013, SSN;
When the President of South Sudan issued a decree on 9/1/2012 appointing a Constitution Review Committee (CRC) that would write the permanent constitution for South Sudan, many, if not all South Sudanese, were relieved that Government of South Sudan was indeed serious in its commitment to usher in a democratic constitution for the future governance of this newly independent country. It was thought that the aim of the president was to ensure that the country begins with a constitution that would establish the basic democratic institutions in South Sudan.
This was meant to avoid the myriads of problems that many African countries inherited from constitutions developed during the decolonization period. Certainly, the current transitional constitution of South Sudan is not different. This is because it is a refurbished interim constitution of South Sudan that was used during the transitional period and that constitution was actually a prototype of the Sudan constitution with minor modifications to fit the then situation in South Sudan.
However, the recent reports emanating from South Sudan regarding the constitution review process and the forthcoming elections are generating great anxiety or worry about the whole process of the constitutional writing.
The South Sudan National Legislative Assembly has already extended the mandate of the constitution review commission by another 2 years after one year of redundancy. This effectively makes it impossible for South Sudan to get a new constitution before 2015. The reasons given for the delay in the process of constitution making is government’s failure to fund the activities of the commission.
This is compounded, according to the chairman of the commission, Prof Akolda, by “inactiveness of some of the members in the commission’s work, saying they hold senior government positions which compromise their active participation in the commission’s work.”
On the contrary, South Sudan’s cabinet on Friday 8/3/2013 approved a sum of over 30 million South Sudanese pounds to the national elections commission and directed it to immediately begin establishing its organizational structures at the national level and across the ten states of the country.
The minister of information and official spokesperson of the government, Barnaba Marial Benjamin, told the press on Friday that the coming election was important for the democratic transformation in the new republic. He said, “the national elections commission is supposed to commence its work to become fully operational in order to organize itself… and to prepare for the elections of 2015… We need the elections for our democratic transformation and conducting ourselves in a democratic manner.”
Reading through this directive and the fact that the government can raise funds for the electoral commission but cannot mobilize resources to support the work of the constitution review commission certainly brings to focus clear misgivings about the government commitment to put in place a democratic constitution and democratic institutions before the coming elections.
This is a clear sign that the government is willing to conduct the national elections in 2015 before democratic changes are introduced that could lead to real democracy in South Sudan. Indeed these are the worrying signs in South Sudan. I called them worrying signs because the current South Sudan transitional constitution has so many deep and porous articles that leave a lot to be desired in real democratic terms.
However, before I can delve into some of the pitfalls of the current constitution, I would like to elaborate briefly on why South Sudan is likely to go to the next elections without a new constitution.
Part sixteen (transitional provisions and the permanent constitution process); Chapter 11 which describes methodologically the roles and terms of reference of the South Sudan review commission is quite explicit and detailed. In Chapter 11; Article 200 sub-article 1, it categorically says, “The President of the Republic shall, after consultation with the Political Parties, civil society and other stake-holders, establish a National Constitutional Review Commission to review the Transitional Constitution of South Sudan, 2011,” and in fact the President has carried out his obligation here though not inclusive but what is clear is that the President has not followed this role with immediate provision of resources to activate the work of the commission.
This lamentable situation was confirmed on 11/3/2013 by the chairman of the commission who said that despite approval of funds by the parliament, the government has not yet released any. He reaffirmed that the basic activities of the NCRC that currently take place such as meetings, have been facilitated by USAID and International Development Law Organization (IDLO). He said, “We are at stand still.” He said, “How do we travel to the states?” and added that, “it seems that the government has its own priorities and the Constitutional Review Commission does not seem to be a priority; even the money that has been voted by the parliament to us since July last year has not been released.”
In fact the eminent professors “expressed possibilities that will prolong the work of the Commission despite the term increase.“ Prolongation of the work of the commission beyond the two years is really a great possibility because if anyone is to review the process of the constitution making according to the transitional constitution, the task is enormous.
Part Sixteen, Chapter 11 of the transitional constitution, Article 200, sub-articles 3, 5, and 7 outlined wide ranging activities that the commission should do. These include collecting views from the public, conducting nation-wide public information programs and civic education and adopts and presents the draft to the President.
In Sub-article 8 and 9 the president is required to review the constitution, make appropriate amendments and return it to the commission for correction before the President submits it to the constitutional conference in accordance to Sub-article 10 of the same chapter. Article 201 of the constitution, sub-articles 6, 7, 8 and 9 clearly stipulate that once the constitutional conference approves the Draft Constitutional Text and the Explanatory Report (6), the chairman of conference presents it to the president (7) who in turn tables it before the National Legislature, at least three (3) months before the end of the Transitional Period, for deliberation and adoption (8). The President is mandated by sub-Article 9 to sign the constitution after the Assembly has adopted it.
These are lengthy procedures that will take indeed more time than the 2 years if they are strictly followed. Therefore looking at these processes that the commission would carry out to create a true democratic constitution that can lead to establishment of democratic institutions in South Sudan, one begins to wonder whether this can be accomplish before the next general election. Unless the commission goes with what its chairman; Prof. Akolda, refers to as a “contract between political parties” and not between the people and government.
In a recent lecture in the University of Juba where Akolda was the main guest speaker; Akolda alluded into the process of the constitutional making in South Sudan. When he was asked whether the commission had the political will actually to create a new constitution, and whether it would involve a consultative process, he had this to say. “The constitution is a “contract between political parties because political parties are a part of the people…. Because constitutions have been traditionally made without social consultation or the involvement of ‘civil society’, it was unnecessary to include this consultation.”
Responding to some critics from the audience, he further said; “no constitution is permanent”: if they don’t like it and when ‘the people’ have enough education they can just amend it.” He wondered how the members of the commission would he be able to tour the country consulting people to get what one speaker described as the ‘mangrove tree mandate;’ “are we going to sleep under the trees?”
Certainly if South Sudan is to get a new constitution before the next elections then Prof. Akolda is right but certainly the kind of constitution that will come out of this process is everyone’s guess. These are indeed some of the worrying signs.
From the above analysis, it is apparent that the government may opt to conduct the next election using the transitional constitution. If this happens, then South Sudan will not only have missed the golden chance of getting a democratic constitution but it is condemning itself to a constitution that has glaring pinholes. Certainly any keen reader of the current constitution would have noticed many constitutional oversights that make the current constitution undemocratic.
I will try to outline some few examples to illustrate this point. However, before delving into the contentious areas allow me to begin with one oversight in the constitution.
Part 1 (South Sudan and its constitution), Article 1, Sub-article 2 defines the territory of South Sudan as, “territory of the Republic of South Sudan comprises all lands and air space that constituted the three former Southern Provinces of Bahr el Ghazal, Equatoria and Upper Nile in their boundaries as they stood on January 1, 1956, and the Abyei Area, the territory of the nine Ngok Dinka chiefdoms transferred from Bahr el Ghazal Province to Kordofan Province in 1905 as defined by the Abyei Arbitration Tribunal Award of July 2009.”
I am wondering whether the framers of this constitution did not know or ignored the fact that Ilemi triangle in Eastern Equatoria is a part of South Sudan territory that was ceded to Kenya by the British for administrative purpose and therefore must be reclaimed. Everybody including Kenyan authorities is aware and clear about this fact but it is only South Sudanese authorities that are oblivious to it. I hope nationalists will in future consider this issue seriously.
Part 11 (Bill of Rights), Article 9, Sub-article 12 says, “Every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his or her liberty except for specified reasons and in accordance with procedures prescribed by law.” What are the specified reasons referred to here? This is indeed a loose part of the law which many governments in Africa have used to violate the rights of the people of their countries. In Kenya there were laws such as loitering with concern, “Behaving in a manner likely to cause a breach of peace, etc.” These loose laws are dangerous to democracy.
On the other hand, there is nothing in this section which says no one can be arrested without warrant of arrest produced by the arresting authority. Therefore what rights are protected here?
When one takes Part Three of the constitution, Chapter 111 (the decentralized system of governance) read together with Part Eleven, (the states, local government and traditional authority), these parts and chapters are already doomed and overshadowed by the powers of the president in Part Six (National Executive), Chapter 11, Article 101, Sub-article (r) which states that the President can; “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”.
These powers have already been used arbitrarily to remove the elected governor of Lakes State and members of Assembly without diligent reasons. If there is any state that is in crisis in South Sudan, it is Jonglei State yet the governor there is not removed. Frankly speaking, these powers defeat the essence of democracy in South Sudan because there is nowhere in the democratic world where the president exercises such powers but I know that in some constitutions like the Kenya, the constitution has a recall clause where the people can recall their representative or senator for failure to perform his/her duty.
Furthermore, the constitution does not in any case stipulate clearly the independence of the three arms of government, namely, the Executive, the National Assembly and the Judiciary. Perusing through the entire Part Five (The national legislature), Part Six (The National Executive) and Part seven (The Judiciary), nothing stands out clearly to indicate that these organs of government are independent but complementary to each other.
What is clear is that the president is above all. He appoints the ministers (Part six, Article 118, Sub-article 1) and Chief Justices without any independent vetting (Part seven, article 134, Sub-article 1). The role of Assembly is to grace or rubber-stamp the appointments collectively without vetting each minister (Part six, Article 118, Sub-article 2).
Without independent Judiciary and National Assembly the Executive commands free hand to do what it wants and can direct the country in whichever direction it wants because there are no checks and balances. Certainly this is where impunity, nepotism and corruption thrive without checks.
Talking of corruption draws one’s attention to the so-called independent commissions Part Nine (the civil service, independent institutions and commissions) most of which are indeed duplicates of the ministries except the anti-corruption. However one would also say the commissions also suffer from lack of independence and particularly for the anti-corruption commission it is compounded by lack of prosecutorial powers in a situation where there is no independent judiciary. This has rendered this commission toothless and unable to curb corruption in the country.
Absurdly, the constitution in Part 5 (The national legislature) gives the President privileges to make laws that are only subject to ratification by the Assembly. Article 86; Sub-article 1 states: “In case the National Legislature is not in session, the President may, on an urgent matter, issue a provisional order having the force of law.” These privileges cover wide range of issues except in cases of “Bill of Rights, the decentralized system of government, general elections, annual allocation of resources and financial revenue, penal legislation or alteration of administrative boundaries of the states as stipulated in Sub-article 5 of the same Article.
Armed with these powers and knowing very well that the Assembly is not independent, the president will certainly be tempted to become a power unto himself. This perhaps underpins why the president has continued to use decrees. This is a situation that cannot partake in any real democratic country.
The same powers are given to the president in Article 90; sub-article 1 of the same part of the constitution. Sub-article 1 states: “Notwithstanding the provisions of Article 86 (5) herein, the President may in the public interest, make a presidential order having the force of law, providing that the imposition of any tax, or fee or the amendment thereof shall come into force, pending submission of a bill requiring the same to the National Legislative Assembly.”
In any country the presidential tenure is regulated. In dictatorial states, it is stated that the president can be for life while in democratic states, there is always term limit but this is non-existence in this constitution other than the expiration of the term of office by either resignation, impeachment, mental infirmity or physical incapacity or death (Part 6, Chapter 102 sub-article 1),
Talking of impeachment of the president there is no mechanism provided in the constitution on how to impeach the president. Who is to initiate the impeachment, how many signatures are needed from the public to impeach a president and if it is initiated by the Assembly, how many members of the Assembly are required to initiate impeachment process.
In fact one would have gone on and on analyzing this constitution up to the end but for the purpose of this article, examples given here are illustrative enough for concerned South Sudanese to see the flaws in the constitution but I will not sign up before stating that although the constitution has enumerated the sources of funds in the country (Part twelve, Chapter 1V, Article 175), it has failed to come with the appropriate mechanism to distribute resources to the states other than prescribing setting up of a National Fiscal and Financial Allocation and Monitoring Commission, to ensure transparency and fairness in regard to the allocation of funds collected at the level of the National Government to the states and local governments (Chapter V, Article 178, Sub-article 1).
In Sub-article 2 of the same Article, the commission is to recommend criteria for allocation of National revenue to the state and local government levels. Up to date no criteria is in use in South Sudan unless it is not made public. However, the best criteria is for the constitution to explicitly indicate the percentage of the national revenue that should go to the state in order to make the states economically viable so that they can effectively carry out their functions as implementing arm of the government.
The failure of the constitution to specify allocation mechanisms has caused the states to depend entirely on national government subsidies that are not commiserate to their workload.
In conclusion, I must say maintaining the transitional constitution is the greatest worry to those of us who cherish democracy based on establishment of independent democratic institutions. Therefore, my advice to Government is that South Sudan can only become truly democratic and as a member of the international civilized nations when it take the path of true democracy.
This can only be done now by creating a constitution that is a contract between the people and government. A constitution that is owned by the people of South Sudan, protects their rights and gives them hope for a true democracy and prosperity of the country.
This is the first thing that the government must do to the people and then elections come next. The priority being given to the elections and census will not bring true change to South Sudan but taking the democratic path at any cost is the right route to the betterment of the future generations of this great country.