The imperatives of making a more permanent constitution in S. Sudan under the 2018 agreement [Part 1]

By Santino Ayuel Longar

Assistant Professor of Law at the University of Juba

Since 2005, South Sudan has governed itself using a number of ad hoc constitutional documents. The first document was known as the Interim Constitution of Southern Sudan (ICSS). This document had a full constitutional force from July 9, 2005, to July 9, 2011. The second document was known as the Transitional Constitution of the Republic of South Sudan (TCSS). Its legal force lasted from July 9, 2011 to February 22, 2020. Following the formation of the Revitalized Government of National Unity (RTGoNU) in February, 2020, as a result of the 2018 Agreement between the Government and the oppositions, a third document, known as the shall remained Transitional Constitution of the Republic of South Sudan (TCSS) and is expected to last until February 22, 2023. Beyond the Transitional Period, however, the 2018 Agreement envisions the making of a more Permanent Constitution.

Chapter 6 of the Agreement—specifically from 6.1 to 6.16—mandates the Revitalized Transitional Government of National Unity (RTGoNU) to initiate and oversee the making of a more Permanent Constitution during the Transitional Period. While the Agreement uses the phrase “Permanent Constitution,” this piece adopts the phrase “more Permanent Constitution” to connote the fact that no constitution document, however permanent it may be, is ever immune from being subject to reasonable amendments.

Under the Agreement, the process of making the more Permanent Constitution will be animated by a number of legal and political principles such as the supremacy and sovereignty of the people of South Sudan; adoption of a federal and democratic system of government that reflects South Sudan’s day-to-day realities, especially as regards ethnic and regional diversity; the internal political dynamics and the character of the people of the Republic of South Sudan; respect for communal rights and preservation of ethnic and cultural identities. The preservation of ethnic and cultural identities includes the right of communities to protect; promote and preserve their cultures, develop their language and cherish their history as well as create a system of fair and equitable governance and participation of all citizens in the economic and political life of their country. It, therefore, seeks to constitutionalize popular participation in the continuous determination and shaping of the destiny of the South Sudanese Republic.

The constitution-making process also seeks to prioritize projects such as State-building and social cohesion among the people of South Sudan. This includes establishing structures of governance; entrenching sustainable peace and stability as well as protecting the territorial integrity of the Republic of South Sudan. In creating structures of governance, the constitution-making process strives to adopt multiple centers of power and structures of decision-making as well as promote strict devolution and dispensation of resources to states and local governments.

Pursuant to the Agreement, the constitution-making process is to be completed within the first 24 months from the commencement of the Transitional Period (February 22, 2020) and will come into effect prior to the end of the Transitional Period. This suggests that the more Permanent Constitution is slated to guide the elections prior to end of the Transitional Period.

What is at stake, thus, is the determination of the future and governance of the Republic of South Sudan and its people. Whatever South Sudan will ultimately become—including its ability to realize the aspirations of the people to adopt a system of a free, liberal and democratic society—largely depends on the nature and content of the more Permanent Constitution.

This piece seeks to briefly examine the fundamentals and imperatives of South Sudan’s more Permanent Constitution.

1.     The Nature and Fundamentals of South Sudan’s more Permanent Constitution

The contents of any constitution reflect the nature of its prevailing socio-politico-economic environment. The contents or fundamentals of any constitution, therefore, vary from one country to another. This suggests that there is no universal template for making constitutions.

As used in the sense of the foregoing, a constitution is an instrument that establishes a legal relationship between a sovereign State and its citizens. It sets out conditions not only by which the State, through its directing and operating minds (public officials), exercises governmental power. It also defines, in a more permanent way, the fundamental rights of citizens vis-a-vis the State. Once adopted, a constitution become a more transcendental law that cannot be easily altered, either by way of an ordinary legislative function or an executive authority, save and except as may be set out in an amendment formula that calls for a broad-based participation of a population of the polity that a given constitution governs. This formula must also be expressly spelled out in the constitution, implying that the formula must, as well, be constitutionally entrenched.

The above definition underscores two fundamentals of a constitution. First, a constitution must constrain the conduct of public officials. This occurs when a constitution, often with the help of an enabling legislation, prescribes how government officials shall exercise governmental authority. Public authority must, generally speaking, be exercised for the benefits of all citizens. What this means is that State officials must not exercise powers or perform tasks that the law does not prescribe or authorize them to perform. Second, a constitution must protect the fundamental rights and freedoms of individual citizens. In a modern phraseology, these rights and freedoms are referred to as human rights. This can often be found in a section of the constitution called the Bill of Rights.

The fundamentals of a constitution give rise and seek to cross-fertilize as well as balance two forms of constitutional moralities namely; the morality of law and morality of governance.

The morality of law seeks to protect and promote individual rights and liberties. It creates an exclusive zone of individual activity that remains immune from and is, thus, inviolable by, the State. Under the morality of law, individuals are entitled to exercise their rights and freedoms unless the exercise of such rights practically operate in a way that substantially infringes upon the rights and freedoms of others or are of such nature as to violate public morals that the Constitution or other forms of public law recognize as imperatives of a moral and self-sustaining society.

Besides circumscribing the scope of the exercise of public power, the morality of governance, on the other hand, is generally limited to the pursuit of public interests. It does not only ensure that public officials do not do what the law does not permit them to do. It also obligates the State to treat all its citizens impersonally. That is, the State must treat all its citizens equally before and under the law, irrespective of their political or religious persuasions or distinctions ordained by nature (such as being male or female, or being from a particular ethnic group).

Construed as such, it is plausible to contend that the morality of governance essentially promotes the rule of law as well as mitigates the effects of arbitrariness that inheres in the exercise of State authority.

It stands to reason that in the event of any conflict between the two forms of moralities, the morality of law governs. What this means is that the fundamental human rights and freedoms supersede the pursuit of public interests.

These goals are realizable if a constitution contains the imperatives of a good constitution.

2.     The Imperatives of a Constitution

Because the constitution defines the relationship between the State and its citizens in a more permanent way, the making of a constitution and its amendments are not an ordinary political affair. An ordinary political affair, such as a party’s national convention, is a partisan undertaking that only serves narrow ideological interests such as capturing and retaining political power.

The primacy of a constitution over all other laws is that the constitution is held out as the supreme law of the land. This means that any law or parts of its provisions thereof that are inconsistent with the provisions of a constitution are considered null and void to the extent of that inconsistency. As well, more than any ordinary law, a constitution shapes and directs the lives of all the citizens. Its provisions are imperatives or a substantives characteristic of the final constitutional document. A constitutional imperative is, thus, an indispensable element of a constitution.

Since a constitution is the supreme law of the land, the imperatives of a constitution are different from those of, say, a manifesto or an Act of parliament. This is why a constitution-making process and its subsequent amendments are not an ordinary affair. These processes must be undertaken in the form of a cross-sectional participation of all the people of a given polity. Doing so ensures that the ultimate constitutional outcome is a result of democratic negotiations, a balance of political or other interests among all citizens, in all their diverse backgrounds.

Against this backdrop, the following are some of the imperatives that must inform the constitution-making process in South Sudan.

(a)    Popular Participation as an Element of Constitutional Legitimacy

One of the constitutional imperatives is that a constitution must command the acceptance or assent of all the people to whom it applies. This popular assent is the essence of constitutional legitimacy. In other words, a constitutional legitimacy arises when the constitution-making process enlists popular participation of citizens in all their diverse backgrounds.

In light of this imperative, an argument can be made that the ICSS and TCSS were documents that lacked full constitutional legitimacy in the Country. That is because they were not drafted with the participation of the cross-sectional representations of the people of South Sudan in their diverse constituencies.  These two documents, each of which is almost an exact replica of the other, were drafted by elites for the elites. They only aimed at entrenching the interests of the political class and their ability to wield iron grips on public power and decision-making, with little in terms of allowing the people of South Sudan to determine their political fate of their own country. In this regard, these ad hoc constitutional documents practically barred the people of South Sudan from shaping the destiny of their country, having vested almost absolute public power, in large part, in the executive.

To be sure, the ICSS and TCSS heavily vested State power particularly in the Office of the President. They created a system where there were no multiple centers of authority and, therefore, no layers or structures of decision-making. The resultant system has been one of democratic deficit and diminishment of popular participation in the socio-economic and political life of the country.

A constitution adopted with little or without popular participation in shaping its outcome will not only miss out in terms of protecting the rights of certain constituencies. It will also lack constitutional legitimacy, being not a product of democratic negotiations and balance of political interests among of all the people it governs.

Understood in this sense, it is evident that the ICSS, and TCSS lacked constitutional legitimacy: they missed out on some of the essential elements listed in Article 6 of the 2018 Agreement, as outlined in Section 1 of this piece. Since constitutional legitimacy is an imperative of a good constitution, South Sudan’s more Permanent Constitution must enjoy the cross-sectional participation of all South Sudanese people.

(b)   Constitution as an Iron Shield Against State Interference with Individual Liberty

Another imperative of a good constitution is its ability to protect the zone of individual activity from State interference. This imperative ensures that the government does not alienate its citizens from governance. Specifically, a State’s violation of ordinary people’s fundamental human rights, especially as regards their participation in the running of the economic and political affairs of their country, has been the raison d’être for making of constitutions. Because States have historically been known for being the primary violators of people’s and human rights, the first constitutional or quasi-constitutional documents ever adopted were intended to address the issue of state invasion of the exclusive zone of individual activity. This was especially true in 1215 when English citizens rose against their King, demanding of him to surrender some of his legal powers to citizens. As well, the fear of too much State authority was one of the overriding reasons for the adoption of the U.S. Constitution. It also inspired the adoption of the French Declaration of the Rights of Man and the Citizen. Both of these constitutional declarations occurred in 1789.  Historically, thus, a constitution has been a tool with which to roll back the invasive power of State authority.

In the context of South Sudan, it is least disputable that since 2005, the rights and freedoms of ordinary citizens have repeatedly been violated, contrary to the edicts of social contract. As well, the ordinary people of South Sudan have consistently been alienated from participating in political processes; thus, have no ability to mold the affairs and destiny of the country they heroically fought for.

For this reason, the more Permanent Constitution of the Republic of South Sudan must create a system of governance that builds the country from the bottom up, not the other way around. Popular governance, not the rule of elites, is an imperative of a good constitution regardless of the type of the constitution that a country adopts.

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