Federalism: A Peace Plan for Post-conflict South Sudan [Last Part]
By Christopher Sebit
The ICSS, 2005 provided for politically, administratively and fiscally decentralized tiers of government—thus meeting the autonomy and political competence of the tiers of government which is the key parameter of a federal system. Under the ICSS, 2005, the judicial, public attorney, police, prison, wildlife and fire-brigade services were decentralized to the states. These services are centralized under the TCSS, 2011.
Specifically and interestingly, Article 171 (1) of ICSS, 2005 says that the constitution of each state shall provide for the establishment of a state judiciary consisting of high courts, county courts and other courts and tribunals. Furthermore, Article 171 (4) (a) (b) of the ICSS, 2005 states that the state constitution and legislation shall provide for the appointment and removal of judges and magistrates; independence and impartiality of the state judiciary; and immunity of judges and magistrates from political or other interferences.
The state judiciary is omitted from the TCSS, 2011. The serious consequence of this unfortunate omission was that the former 10 states did not have enough political competence since judiciary, one of the most important army of the government providing checks and balances and helps to bring about effective enforcement of law and order at the state level was missing. The same story is true for present 32 states. Their political competence is limited due to lack of independent state judicial power.
Both constitutions: ICSS, 2005 and TCSS, 2011 recognize local government, but they refrain from giving it enough and appropriate political, administrative and financial competence to deliver services effectively to the citizens. Local government status is ambiguous. Many keen observers attribute the ambiguity and the declining importance of local government to its being treated as a component of the state rather than as an independent level of government standing alone and exercising its absolute political, administrative and financial competence experienced in federal systems around the globe.
One difficult question tormenting the author at the moment is whether the proposed federal system will bring about fair and equitable distribution of powers to local, state and central governments in a way that satisfies the aspirations of minorities and majorities. How will the self-rule and shared rule principles of federalism be instituted? Are the regional governments going to enjoy more final powers in matters relevant to their jurisdictions? Are decisions, functions and responsibilities going to be delegated to the lowest competent level of government as required by the principle of subsidiarity? How about the question of sovereignty? Is government authority going to be exercised according to the will of the people? Are the members of the Council of States going to be elected or appointed? Will implementation of fiscal decentralization take into account the views of the regions? Are we going to have representatives of the regions or states participating in the decisions of FFAMC?
What type of federalism has the ability to answer satisfactorily the questions raised above is another difficult question, not only for the author, but also for scholars, policy-makers, and majority people of South Sudan. There are several models of federalism being applied around the world. United States, Austria, Australia and Germany are applying mononational federalism. These are countries that are unilingual and unicultural whose citizens are guided by the same values. Belgium, Canada, India and Ethiopia are applying multinational or ethnic federalism. They are multilingual and multicultural countries. They are defined as nations within a nation (Canadian Political Science Association, 2005, p.19-20).
When the boundaries of a state are drawn according to geographical or administrative convenience, scholars refer to this exercise as territorial or administrative federalism. Some of our present 32 states were created administratively while many others were created on the basis of ethnicity. When the constituent regions of a federal state have the same powers and the same number of representatives in the second chamber of parliament, such a state is said to be applying symmetrical federalism. If the reverse is true, then it is believed to be pursuing asymmetrical federalism.
The factors that usually foster asymmetrical federalism are significant disparity in terms of region; the density of the population; the presence or absence of ethnic minorities and the socio-economic structures (Anastassia, 2005, p.263). By providing a special provision for Kashmir, Nagaland and Meghalaya, Indian federation applies asymmetrical federalism. Can we make use of this Indian federal experience and insert a special provision in our constitution to increase and strengthen participation of ethnic minorities in the central level of government?
If federalism is to be considered a peace plan for the post conflict situations of South Sudan, then there is urgent need to choose the type of federal system relevant to its contexts. So, people of South Sudan, what model of federalism would you like to be introduced in our country? Can we go for mono-national, multinational, territorial, symmetrical or asymmetrical federalism? Is it possible to have our own model of federalism? If yes, how do we call it? The author requires answers to these questions to enable him acquire a clear vision of the type of federalism worth adopting in the context of South Sudan. The author is a researcher and is looking forward to enrich the accumulating literature on federalism.