Dilemmas of Constitution Building in Post-Conflict South Sudan

Joseph Geng Akech

University of Pretoria

Summary 

The world’s newest nation, the Republic of South Sudan, is yet to adopt a ‘permanent’ constitution consistent with common aspirations of its peoples. But as the country starts to embark on this process, low simmering political tensions triggered a bloody conflict in December 2013 and introduced new dimensions that are instructive to constitutional design. A number of questions come to mind: how should a new yet war-torn nation address imperatives of peace and transitional justice on one hand, and the constitution building on another? This post highlights these dilemmas and suggests an integrated process that ensures peace-building to allow popular participation of people in a conducive environment. 

Introduction

This piece highlights dilemmas of designing a new constitution in South Sudan, the world’s youngest nation, born in 2011. The new nation was created through a referendum on self-determination enshrined in the Comprehensive Peace Agreement which had been signed between Sudan government and the Sudan People’s Liberation Movement/Army (SPLM/A), to end one of the Africa’s longest civil wars. The outcome of the vote was an overwhelming choice for secession by Southern Sudanese to establish a new democratic state. That democratic ambition remains a distant dream as the new nation failed to promulgate a unifying final constitution. Before independence, the CPA had provided for autonomous region in the South governed under an interim framework – the Interim Constitution of Southern Sudan, 2005. It is this instrument that was transformed into the Transitional Constitution, 2011 as a transitional arrangement until a permanent constitution was adopted. 

As the process of building a ‘permanent’ constitution commenced in 2012, South Sudan surprised the international community that had received it with optimism of a more democratic nation. A bloody civil war broke out in 2013 and again in 2016, pitting communities against each other, with soldiers fighting along ethnic lines and fracturing the socio-political cohesion that unified South Sudanese behind the SPLM/A to wage war of liberation against successive regimes in the Sudan. These internal conflicts halted constitution building process and introduced dilemmas that continue to disturb constitutional lawyers and peace-building actors. These dilemmas revolve central issues and tenets, including on how should South Sudan address peace-building, transitional justice, and reconciliation of its fractured communities and whether it should settle these within constitution building process? To what extent would ensuring social harmony in South Sudan foster constitution building process? This blog highlights how these dilemmas could obstruct constitution building for a country to achieve its democratic ambition. 

The blog proceeds in sections as follows. Section 2 highlights the constitution building process to situate these dilemmas and opportunities to integrate consensus building towards constitution building. Section 3 discusses the dilemmas, while Section 4 concludes the blog with broad remarks and recommendations.

Background to the Constitution Building Process in South Sudan

The process of building a ‘permanent’ constitution that started in 2012 came to a halt following the December 2013 conflict. The Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) provided an impetus to deliver on this long standing question for a permanent constitution. Whilst the Agreement provides parameters for constitution building, its grand aim is to ensure peace and transitional justice in South Sudan. However, views vary on this issue, with critics arguing that the conflict had its origin in the absence of constitutionalism and rule of law, underscoring that peace-building and transitional justice are inseparable with the building of a new constitution. 

The constitution building process, as broadly outlined in the R-ARCSS, is a three-part process. The first is for the parties to the R-ARCSS to enact a legislation to guide constitution building process. That law would reconstitute an old commission – the National Constitution Review Commission (NCRC) – to reflect the character envisaged under the R-RACSS. The NCRC is to draft the text of the constitution through robust participatory approaches, to ensure popular participation of all South Sudanese citizens. Once this is done, the draft constitution would be deliberated and approved by a would-be established National Constitutional Conference (NCC) – a forum composed of not only political elites but also civil society, faith -based groups and invited international actors. The third and last stage will be deliberation and adoption by a transformed Transitional National Legislative Assembly acting as a Constituent Assembly. It is this final text that would be signed and promugulated by the President of the Republic of South Sudan.

The above mentioned three-stage process assumes that peace will prevail in the country to permit return of the displaced persons and their meaningful participation in constitutional design. Yet, as it has been argued above and elsewhere, relative stability could be influenced by the outcomes of transitional justice process established under the R-ARCSS. These include prosecution by the Hybrid Court of those bearing highest responsibility for violence and the launching of truth and reconciliation processes. Considering these issues and the popular expectations, the next section discusses these dilemmas in relation to constitution building process. 

Dilemmas of Constitution Building in South Sudan

Constitution building is a sovereign process that must not only promote inclusive participation of citizens, political parties, and civil society, but it also requires an environment free from violence and intimidation. Notwithstanding these aspirations, a number of surmountable challenges prevail, including the conclusion that, South Sudanese are more divided today than before the conflict erupted, which requires diligent and transparent reconciliation processes. There is merit to ensure social harmony, which is key for state and nation building. Second, political violence must also be ended, in part, through prosecution of ‘gun class’ and war profiteers. I am not arguing that these are condition precedents to the successful building of a constitution. I am simply pointing to the fact that these dilemmas confront constitution building in new state.  Other voices thinking along the same line abound here.  Seidel and Sureau, for instance, warned that South Sudan might be rushing to adopt a ‘permanent’ constitution, yet it has not addressed serious underlying contentious issues, such as land. They contend that South Sudan should ‘slow the constitution building process and embrace processual solution.’ 

Concluding Remarks

Constitution building in South Sudan remains important for peace-building as it is for nation building. It must, therefore, be participatory and respond to the imperatives of promoting peace and ensuring social cohesion amongst south Sudanese. Whilst the goals of international actors’ participation in South Sudan might lean towards prioritising constitution building as a ‘solution’ to dilemmas highlighted above, this post brings to surface critical issues which have been glossed over in the past.  Broadly, there is a need to recognise that ignoring these dilemmas could be counterproductive to the overarching objective of building a consensual constitution to unite South Sudanese behind their common aspirations of liberty, justice and prosperity, engrained in the national coat of arms and the national anthem.

Joseph Geng Akech is a human rights lawyer and LLD candidate at the University of Pretoria, South Africa.

Suggested Citation: Joseph Geng Akech, ‘Dilemmas of Constitution Building in Post-Conflict South Sudan’ IACL-AIDC Blog (13 September 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/9/13/dilemmas-of-constitution-building-in-post-conflict-south-sudan.