South Sudan’s Permanent Constitution-Making: Another Bad History in the Making?

Dr Mark Deng

University of Melbourne

Birth of South Sudan and its Challenges

South Sudan was born of separation in 2011 after two decades of civil war with Sudan. The Sudan’s People Liberation Movement (SPLM) fought the war, and assumed state power as South Sudan’s inaugural government in 2011 (it has remained in power since then).

Like any new government, or any government for that matter, the SPLM has faced many challenges. One immediate challenge – a result of the decisive vote for independence – was drafting the Transitional Constitution to govern the newly-founded nation during the transitional period. This was initially understood to be a period of four years but it has been prolonged by the post-independence challenges, including the civil war.

This piece analyses the politics involved in the drafting of South Sudan’s Transitional Constitution in 2011, and suggests ways to approach the upcoming permanent constitution- making process with the aim of guarding against elite capture.

Drafting of the Transitional Constitution

According to a resolution passed at an ‘All Southern Sudanese Political Parties Conference’ in 2010, the Transitional Constitution was supposed to be drafted by a National Constitutional Review Commission (NCRC). The NCRC was to be appointed by President Kiir Mayardit in consultation with various stakeholders, including opposition parties, civil society groups and religious institutions. However, the President disregarded that resolution and appointed a technical committee in lieu of the NCRC.

The technical committee was composed largely of the members of the SPLM (President Mayardit’s party). For example, of the 52 committee members, 41 were SPLM’s representatives. Presumably, the SPLM’s intention in dominating the committee was to have the Transitional Constitution designed in a way that suited its own political agenda. The opposition parties and civil society groups unsuccessfully attempted to oppose this move.

The technical committee – which became a politically homogenous body after most of the opposition parties withdrew from the drafting process in protest – drafted the Transitional Constitution (with the assistance of external actors). The Transitional Constitution received presidential assent on 9 July 2011 after having been approved by South Sudan’s parliament. 

Transitional Constitution and its Shortcomings

The Transitional Constitution made history as South Sudan’s first constitution. It establishes the country as a presidential Republic, governed under a decentralised system of government. It may be described as a legal constitution in at least two senses: 1) it gives the Supreme Court of South Sudan power to enforce legal limits on the legislature and the executive, although in theory only as the judiciary lacks its institutional independence; 2) it locks in rights in the form of a bill of rights, which were borrowed from international human rights conventions virtually word for word.

While the Transitional Constitution is a historic document, it has its downsides. One is its authoritarian nature. This is evidenced by the concentration of power in the executive President – itself a consequence of the SPLM’s domination of the drafting process in 2011. For example, the President has the power to remove an elected state governor from office under article 101 (r) of the Transitional Constitution. He does this despite the fact that states are established as a separate level of government under article 163 of the Transitional Constitution.

This concentration of power has had serious implications for the country. It has, for example, created an environment which is not conducive to democracy, constitutionalism and the rule of law (ironically, these were some of the SPLM’s founding liberation principles). More worryingly, there are violations of human rights that take place in the country practically daily, rendering the constitutionally enshrined bill of rights meaningless. 

All is not lost, however. There is an opportunity to draft a democratic constitution and to commit the government to a new political order. The Transitional Constitution, read together with the recently signed peace agreement, mandates the drafting of a permanent constitution.

Drafting a Permanent Constitution for South Sudan

The drafting of a permanent constitution first commenced in 2012, but the process stalled in 2014 due to the civil war which altered the government’s priorities. The government became more focused on resolving the war as a matter of urgency. After many rounds of talks, the warring parties signed a peace agreement in 2015. This collapsed in 2016 but it was revived in 2018. 

The peace agreement requires the transitional national parliament to enact a law to govern the drafting of a permanent constitution. This law – Constitution Making Process Act 2022 – has been enacted. It is yet to be made publicly accessible. However, reports indicate that it prescribes three working groups: a Reconstituted National Constitutional Review Commission (R-NCRC) to oversee the entire process; a 15-member Constitutional Drafting Committee (CDC) to draft the text; and a National Constitutional Conference (NCC) to debate and pass a draft constitutional text before it can be approved by the transitional national parliament. 

Issues with the Permanent Constitution Drafting Process

There are a few issues with the permanent constitution drafting process that may not allow it to produce an optimal result. First, there are no safeguards against elite capture which is inevitable. The SPLM, as a dictatorial government, will likely appoint its representatives to the R-NCRC and the CDC as a majority. The result will be another authoritarian constitution imposed on the country. In short, history will repeat itself.

There are ways to guard against elite capture. One way is to have a popularly elected constitutional assembly lead the drafting process. (The details of this body, eg, its size, funding and methods of electing it, could be worked out in a law governing the drafting process). This would limit political interference and give the process legitimacy. Alternatively, a set of constitutional principles could be drafted as a guide. This was the approach taken in South Africa, and it was effective in committing the political actors to the agreed process and ensuring the constitution was drafted accordingly.

The second issue is that the government lacks popular legitimacy to supervise the drafting process. Both President Mayardit and parliament’s terms of office expired 8 years ago. They have continued in office through repeated extensions. It is advisable that the permanent constitution drafting process be deferred until a new government is elected in 2024 when elections are due. A permanent constitution is not a precondition for elections and its drafting should not be unnecessarily rushed. 

The final concern relates to the role of the NCC. As mentioned, the NCC will be established as an ad hoc deliberative assembly. It is my contention that this assembly is not needed for at least three reasons. First, it makes no sense for the NCC to debate and pass a document subject ultimately to approval by the transitional national parliament. What would happen if the transitional national parliament was not happy with a draft permanent constitution passed by the NCC? The obvious answer is that it could amend it. 

Second, it is a waste of resources to have two assemblies with the same functions, especially given it will require a substantial amount of money to run the NCC. Finally, the NCC could be a breeding ground for problems. For example, delegates could be bribed to vote for reasons other than what is best for the country. 

These issues presented themselves in the 2005 Kenyan constitutional drafting process, and they almost stymied the NCC in that process. It is vital to guard against these obvious issues in South Sudan. A simple way to do this is to drop the NCC from the process. 

In Sum

While it hasn’t been a good start for South Sudan, there’s hope that things can be turned around.  The permanent constitution drafting process is an opportunity to do this. But for the process to produce the desired outcome, – ie, a democratic constitution – it must be allowed to operate at arms’ length from the political actors. The current process, as analysed, will not deliver such an outcome, given it provides no safeguards against elite capture. Only an independent process, led by an elected constitutional assembly as I argued, will likely withstand political pressures.

Dr Mark Deng is a McKenzie Postdoctoral Research Fellow at The University of Melbourne – Australia

Suggested Citation: Mark Deng, ‘South Sudan’s Permanent Constitution-Making: Another Bad History in the Making?’, IACL-AIDC Blog (24 January 2023) https://blog-iacl-aidc.org/2023-posts/2023/1/24/south-sudans-permanent-constitution-making-another-bad-history-in-the-making.