‘A Stitch in Time Saves Nine’ - Why South Sudan Needs a New Constitution ASAP
South Sudan had been awaiting its moment for decades. Thus, in 2011 when the country gained independence, it was presumed that South Sudan’s time had finally arrived. Yet, contrary, to the widespread prophecies of peace, South Sudan descended into a calamitous debacle. Political conditions began resembling the authoritarian rule under Al-Bashir from which South Sudanese had recently escaped. The economy started crumbling; the health system was failing; governmental institutions failed to perform, and relations with Sudan exacerbated. Even the 2015 peace agreements failed to alter South Sudan’s fortunes.
South Sudan’s issues have an intricate origin. Historically, South Sudan was an ethnically divided society comprised of numerous tribes who often quarreled over land, cattle and natural resources.[I] The last few years saw these tribes set aside their differences and unite against a common enemy in the fight for their autonomy. However, with the enemy, no longer in the picture, the unity disappeared.[II] Samuel Issacharoff, states that in new democracies a commonly observed scenario is that historical enmities defined by ethnicity or race get redirected to political mobilizations competing for state power.[III] This is precisely what happened in South Sudan. The leaders of the two major tribes of Dinka and Nuer, who also happened to be the President and Vice President respectively, found themselves amidst a power struggle. This power struggle resulted in President Kirr removing the entire Cabinet including Vice President Machar. Consequently, clashes between the supporters of President Kiir and Vice President Machar followed. Within no time these clashes had escalated into a full-blown ethnic conflict. Apart from the wide-scale displacement of over two million people and a loss of about a hundred thousand lives, this conflict has also derailed attention from other important prerogatives such as healthcare and economic reforms.
While historical enmities are at the root of the civil war, South Sudan’s woes amplified due to deficient constitutional engineering. If deeply divided fragile societies like South Sudan are to have a shot at survival, there must be power sharing at every level of governance with sufficient checks and balances. The transitional setup of South Sudan, on the contrary, was devoid of the latter and therefore failed at every step. At the root of it, are three grave constitutional design blunders. Firstly, South Sudan has a Presidential Form of Government. Such setups have no room for power sharing in the executive.[IV] Further, such structures introduce a ‘zero-sum game’ into democratic politics where for the entirety of the Presidential term the winner and losers are distinctly defined resulting in ‘a winner takes all’ situation.[V] In countries like South Sudan where different groups are ready to resort to violence to make their ends meet, such a setup can be disastrous. Secondly, while on paper South Sudan is a federal system, the reality is the complete opposite. In practice, states in South Sudan are accorded insignificant and almost no exclusive powers. Additionally, the Center and the President virtually control the states on all fronts. These factors remove the possibility of the benefits of power sharing and decentralization that are known to accompany federal systems. Thirdly, appointments and removal to the judiciary and other independent agencies like the ombudsmen are completely controlled by the President. Such a feature negates the ability of the justice system to provide adequate checks on the government and engage in ‘Democratic Hedging.’
However, there might still be hope. With new elections to be conducted in 2018, one solution for South Sudan could be in doing away with the error-laden transitional constitution that it is currently functioning under and instead adopting a new permanent constitution. Although constitutional engineering might not be able to solve all the complications of South Sudan yet, it may facilitate bringing South Sudan back on the right track. Adopting a new permanent constitution could serve as a pause, reset and play moment in South Sudan.
Consequently, a prospective new constitutional order could benefit from certain features. First among them could be a shift to a Parliamentary Form of Government. Such a setup would not suffer from the ‘zero-sum game’ problems of the Presidential Form of Government and would allow room for power sharing in the executive. Additionally, such a setup would encourage the party system which would provide the much-needed linkage between the voters and the governments.[VI] These linkages are essential in voicing concerns of the different groups in a country.[VII] Additionally, since Parliamentary Forms of Government depend on coalitions, it would encourage groups to come together to the table. While the Parliamentary Form of Government seems apt for South Sudan, it could also explore a well-crafted Semi-Presidential Form of Government especially one where the President oversees only national security and foreign affairs.
South Sudan would also need to reconsider its federal system. It could ensure adequate distribution of power, authority, and resources between the different tiers of government. South Sudan should also discard its present scheme of confounding and overlapping powers and clearly demarcate roles and responsibilities including allocating powers to local governments. Federalism, in a society like South Sudan may ensure even greater power sharing. Moreover, through decentralization, it can prevent the concentration of power in the hands of one individual. Federalism, properly implemented may also bring the government closer to the populace, increase the ability of people to participate in the government, improve the efficiency of the government, increase accountability and effectively deliver public goods and services to the people.[VIII] An efficient federal system could even facilitate developmental programs and see improved infrastructure.[IX]
Additionally, the justice system in South Sudan also needs a complete overhaul. The current setup suffers from excessive executive interference and a lack of independence. This system has also failed to address past impunity. Additionally, it does not include indigenous dispute settlement mechanisms which have been long utilized by ethnic groups in South Sudan to solve disputes.[X] Thus, a new judicial system in South Sudan must include courts that are independent, a workable truth and reconciliation mechanisms and traditional institutions historically used in South Sudan.
Further, constitutional reforms should not overlook instruments that ensure adequate representation in the government of different ethnic groups and tribes. One possible way to guarantee this is to design electoral systems efficaciously. This could entail utilizing proportional representation coupled with multimember electoral districts and closed lists. Further, to ensure that no group in South Sudan loses out, South Sudan could even profit from apparatuses like reserved seats and ethnically diverse lists.
Thus, constitutional engineering could be South Sudan’s silver lining. However, constitutional engineering is an immensely technical process which must be undertaken with utmost care. For example, South Sudan should ensure cautious management of deliberations on federalism.[XI] Even minuscule errors could result in feeding tribal mentality or hatred.[XII] South Sudan would have to be cautious this time around and realize that they might not get a second shot at democracy.
[I]Tom Richardson, Pastoral Violence in Jonglei, ICE Case Studies, December 2011 at http://www1.american.edu/ted/ICE/jonglei.html.
[II] Max Fisher, 9 Questions about South Sudan You Were Too Embarrassed to Ask, Washington Post, 30th December 2013 at https://www.washingtonpost.com/news/worldviews/wp/2013/12/30/9-questions-about-south-sudan-you-were-too-embarrassed-to-ask/.
[III]Samuel Issacharoff, Constitutional Courts and Democratic Hedging, 99 Gt L.J 961(2011).
[IV]Arend Lijphart, Constitutional Design for Deeply Divided Societies, 15 Journal Of Democracy 96, 101(2004).
[V]Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference? In Juan J. Linz And Arturo Valenzuela Eds., The Failure Of Presidential Democracy, 18 (1994).
[VI]Seymour Martin Lipset, The Indispensability of Political Parties, 11 Journal Of Democracy 48, 48–55 (2000).
[VIII]Mwangi Kimenyi, Making Federalism Work in South Sudan in Brooking Institution-Africa Growth Initiative, South Sudan One Year After Independence: Opportunities And Obstacles For Africa’s Newest Country,17(2012).
[IX]Dr. James Mabor Gatkuoth, The Proposed Federal Model for South Sudan, South Sudan News Agency,30th June 2014 at http://www.southsudannewsagency.com/health/columnists?start=144.
[X]Mwangi Kimenyi at 14
[XI]Gabrial Pager Ajang, The prospects of federalism as an effective form of governance, and how it can rescue South Sudan from the brink of collapse, South Sudan News Agency at http://www.southsudannewsagency.com/opinion/columnists/the-prospects-of-federalism-as-an-effective-form-of-governance.
June 29By:Established in 2012 in partnership with the University of Pennsylvania Law School, the fellowship creates new pathways for students to build careers in international rule of law and human rights.
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