Federalism: A Peace Plan for Postconflict South Sudan [Part 1]
By Christopher Sebit
Oh! My God, history repeats itself. In the regional dialogue conference at Wau, the people of Bahr el Ghazal region sent a clearly perceived message recommending introduction of federal system of government. The perspectives of the people of Upper Nile on federalism were to a greater extent similar to that of their counterpart brothers and sisters in Bahr el Ghazal region. Bravo, my people! You are in the right direction.
The expected Equatoria regional dialogue conference is likely to follow suit the views already expressed in favour of federalism by Bahr el Ghazal and Upper Nile regions. The three regions see federal arrangements as the only viable peace plan that strengthens political integration, effectively manages ethnic diversity and defuses conflict through granting autonomy to ethnic groups and ensuring that these groups are equally represented in the central institutions of government.
It is worth noting that South Sudanese have been advocating for application of federalism since Juba Conference of 1947. At Pan-Southern Conference of October 1954, the people of South Sudan came unanimously in support of federalism as a means of maintaining national unity and safeguarding the south against discriminative, exploitative and marginalization policies of the ruling elites in north Sudan. Unfortunately, the ruling elites equated federalism question with secession, terribly opposed it and refused to avail a space for discussing federal issues.
Despite the autocratic regime’s opposition and resentment, the people of South Sudan persevered and established a Federal Party, headed by Ezborn Mundier as President and Darius Beshier as Secretary General. The Federal Party studied different models of federalism around the world and then proposed a constitutional structure similar to that of the United States.
The Khartoum round table conference was held in March 1965 to consider discussing intensively, the proposed federal system of government. Divergent views emerged. Sudan African National Union (SANU) from inside Sudan insisted on the introduction of federal system in South Sudan; whereas SANU from outside wanted secession for South Sudan; Southern Front Party wanted the people of South Sudan to exercise a right to self-determination in an internationally supervised referendum, where they were to choose between federation, local autonomy or the existing unitary system.
The northern political elites favoured creation of one region in South Sudan. The people of South Sudan were in favour of three regions: Bahr el Ghazal, Upper Nile and Equatoria. While the people of South Sudan were sticking to federal arrangements to enable them control their own affairs, resources and destiny, most northern politicians accepted to concede a limited regional autonomy to the South in areas of primary education, health and roads, leaving control over economic planning, financial policy, state security, armed forces, foreign affairs and other areas of national policy to the central government (Ouma, 2005, p.22).
Divergent views on the question of federalism led to the collapse of Khartoum round table conference. The Addis Ababa peace agreement of 1972 offered an environment for revisiting federal question. The Southern Sudan Regional Government (SSRG) was established in the spirit of federalism and given executive and legislative powers without judicial authority.
The powers to set up a Regional Development Corporation, to use English as official language and medium of instruction in schools, and the powers to run a separate administration for civil, police, prison, wildlife and fire-brigade services were devolved to the SSRG. At the central government in Khartoum, the South was represented in the presidency, national assembly, civil service and the army. Moreover, a decentralized local government system was applied throughout the country.
The first federal experiment in the South ended with the dissolution of the SSRG in 1981 and its subsequent re-division into three regions—Bahr el Ghazal, Upper Nile and Equatoria in 1983. This first phase of experimentation with federalism lasted for 9 years (1972 to 1981) that significantly witnessed an atmosphere of peace, stability and relative development in areas of education, health, housing, water supply, food production, roads construction, etc. Nevertheless, the federal structure exhibited inherent weaknesses that led to its total collapse.
The breakdown of the first federal experiment was attributed to a number of factors. One of them is related to the excessive powers of the national president. He had absolute powers; he had the power to accept or deny any request made by the South Sudan Regional Assembly (SSRA) for the deferral or cancellation of any national law considered harmful for the South. He also had the power to veto bills of SSRA and remove the president of High Executive Council (HEC), ministers and provincial commissioners in South Sudan. Another factor that weakened the first federal experiment was the vagueness of the relationship between South Sudan administration and the central institutions. The Addis Ababa Agreement was not clear on how the regional departments should relate to the central ministries and the role of provincial commissioners exacerbated this confusion (Ouma, 2005, p.26).
President Nimeri ‘s order to annex Bentiu and other areas rich in natural resources to the north as well as introduction of Islamic Sharia Law provoked bitterness and tensions— thus triggering the second civil war that lasted for 21 years (1983 to 2005).
To worsen the situation further, the Sudan Islamic constitution of 1998 created a semi-federal system with three levels of government: federal, state and local government. The federal government was granted more powers than the state and local governments. State powers were conferred to the governor who delegated limited powers to local government councils.
The ability of local governments in delivering services to the citizens was greatly reduced through concentration of powers in the federal government—thus rendering local governments dormant. In theory, though the political structures of 1998 constitution resembled federal arrangements, they were the structures of Islamic autocratic unitary system of rule in practice.
A concrete federal structure in South Sudan was laid down by the CPA. The CPA adopted a federal system with four levels of government: national, South Sudan, state and local government. By clearly specifying the exclusive, concurrent and residual powers of the tiers of government as well as adopting the principle of subsidiarity in allocating tasks to these tiers, the CPA fitted well into the domain of the federal principal.
The CPA provided for the people of South Sudan the right to self-determination and established 25 federal states, Abyei Area Council and local governments in each state—thus it satisfied the self-rule principle of federalism. It also met the shared rule principle of federalism by providing for establishment of the Council of States as the second chamber for co-decision in the National Legislative Assembly.
In respect of concurrent powers, the CPA provided for clear mechanisms for resolving conflicts. The CPA established legislative, executive and judicial organs at state level and granted each tier of government powers to collect and spend its own revenues. This can be referred to as fiscal federalism.
Interestingly, the CPA provided for establishment of administrative, political, fiscal and territorial federalisms. Administrative federalism was reflected in the introduction of four tiers of government and application of the principle of subsidiarity in the allocation of tasks to these tiers.
The CPA vested sovereign authority in the people; it established the Council of States; and created autonomous levels of government in the sense that each level was having its own executive, legislature and Judiciary. This is what some scholars referred to as political federalism. Through giving fiscal powers to each level of government and setting up the Financial and Fiscal Allocation and Monitoring Commission (FFAMC), the CPA had indeed adopted fiscal federalism.
Furthermore, the CPA fitted well into the territorial principle of federalism by inheriting 10 states drawn on the basis of geographical or administrative convenience. For effective administration of the decentralized system and participation of people in government as well as fostering unity in diversity, the CPA had laid down clear principles for the devolution of powers and inter-governmental linkages.
The period following the independence of South Sudan has been experiencing significant deviations from the CPA federal structure. Comparing the Interim Constitution of South Sudan (ICSS), 2005 with the Transitional Constitution of South Sudan (TCSS), 2011 reveals these deviations. Both the ICSS, 2005 and TCSS, 2011 provide for implementation of a decentralized system of government with three levels: national, state and local government.
Theoretically, the constitutional provisions of the ICSS, 2005 and TCSS, 2011 have established features of a federal structure in South Sudan, but the political realities underlying their actual implementation exhibit a deviated pattern linked to centralized unitary system. ICSS, 2005 is preferred to TCSS, 2011 in terms of delivering the best federal practices.
It was clearly stated in Article 208 (7) of the ICSS, 2005 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 South Sudan”. However, the TCSS, 2011 (the amended version of ICSS, 2005) contains a number of provisions which deviate from the typical federal principle. Article 208 (1) of ICSS, 2005 says that government authority is derived from the will of the people of South Sudan. Article 3 (2) of TCSS, 2011 contradicts this statement by stipulating that government authority is derived from the constitution and the law.
Deriving government authority only from the constitution and the law is a clear deviation from the concept of sovereignty that rests entirely with people in a federal system. Some key parameters of federalism like the autonomy and political competence of tiers of government are not in harmony with TCSS, 2011. Article 101 (r) (s) of the TCSS, 2011 gives excessive powers to the president to 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.