Elite Capture and Popular Participation in South Sudan’s Constitution Making?

Introduction

The Republic of South Sudan gained independence from Sudan in 2011, ending Africa’s deadliest civil war. Since then, informal elite agreements and bargaining have been at the heart of governance in the world’s newest country. Such an arrangement has often come at the cost of crucial popular participation and cross-class buy-in. Southern Sudan adopted Interim Constitution in 2005 for its autonomous status as a region in the Sudan. This document was converted into the current Transitional Constitution in 2011 upon assuming a sovereign status following a referendum.

A further elite agreement to adopt a ‘permanent’ constitution by 2015 never saw the light of day as a senseless conflict broke out in 2013 splitting the Sudan’s People Liberation Movement (SPLM) and its armed wing, the Sudan People’s Liberation Army (SPLA) into factions. The war was mainly prosecuted along ethnic lines with one faction of the SPLM/A (latter known as SPLM/A-In Opposition) gathering the majority of its fighters from Nuer ethnic group against the government. The ethnic orientation of the conflict threatened the country’s newly acquired sovereignty and imperilling the future prosperity as well as derailed the constitution-making process. The hope for a final and unifying constitution were, however, revived by the Revitalised Peace Agreement but the process faces two main hurdles which are the subject of this article.

The first challenge is elite capture, in particular, the risk of constitutionalising the current 6-person presidency model. This risk is reinforced by the fact that elites who are signatories to the Revitalised Peace Agreement control the process and its outcome and there are inadequate mechanisms for citizens to hold them accountable. The second risk relates to writing a constitution without meaningful public participation which might put to question, the democratic legitimacy of the resulting constitution.

I. Parties’ Control of the Constitution-Making Process

The constitution-making process is being undertaken at the behest of the parties to the Revitalised Peace Agreement. Five political coalitions – the Incumbent Transitional Government of National Unity (ITGoNU), the SPLM–Former Detainees (SPLM–FDs), SPLM–In Opposition (SPLM–IO), South Sudan Opposition Alliance (SSOA) and Other Political Parties (OPP)–form the Revitalised Transitional Government of National Unity (RTGoNU) represented in the executive, judiciary, and legislature. Apart from a handful, the majority of political parties that form these coalitions are not registered in accordance with the Political Parties Act. The implication of non-registration means that they are yet to become political parties that may compete for elections.

As we await political transformation, the above-mentioned stratocracy (government formed by military groups) groups enjoy exclusive control over the constitution-making process in terms of appointing representatives to all institutions responsible for crafting, adopting, and ratifying a new constitution. This situation translates into the risk of "constitutionalising" the status quo—i.e., capturing the state machinery through legal means that do not necessarily serve democratic ends. These political coalitions also control the national legislature that will serve as a constituent assembly to ratify the final constitutional draft.

In this context, the question that emerges is if these parties will seek to “constitutionalise” their current 6-person presidency to retain political power and socioeconomic leverage.

Six-Person Presidency with Political Veto-Power on Constitution-Making

South Sudan is currently ruled by a 6-person presidency–the president and five vice presidents–with one being more enior than the rest. They represent five different political groups–four from the fractured Sudan People’s Liberation Movement (SPLM) and one from an amalgam of armed and non-armed opposition groups. In terms of regional politics as opposed to political parties’ organisations, three vice presidents (Dr Riek Machar, Taban Deng Gai and Nyandeng de Mabior) hail from Upper Nile region. Two other vice presidents Dr Wani Iga and Abdelbagi Ayii Akol come from Equatoria and Bhar el Ghazel regions, respectively. The president, Salva Kiir Mayardit is from Bhar el Ghazel. The Revitalised Peace Agreement requires the President and his five Vice presidents to work collegially as the presidency.

Effectively, they exert influence and would seek to control both the constitution-making process and its outcome, including a veto-like authority in the executive which they can use to get or retain what they have and that which they aspire for.

Unelected National Legislature to Pass the Final Constitution

The 650-member national legislature (Council of States and National Transitional Legislative Assembly) is competent to adopt the final text of the constitution. It is this unelected transitional national legislature made up of the same parties that will be transformed into a constituent assembly for purposes of adopting the ‘permanent’ constitution. This approach increases the chances of elites’ capture and diminishes prospects for a representative democracy. The practice in most post-conflict constitution-making is to elect a constituent assembly or parliament and charge it with authority to ratify the new constitution.

II. Diminished Prospects for Citizenry Engagement

Citizen engagement in constitution-making increases the prospects for political stability of a country and is key to the democratic legitimacy of constitutions. Constitution-making in South Sudan lacks the enablers of robust citizen engagement despite the Revitalised Peace Agreement stipulating that the process should be led by the people. In particular, the Revitalised Peace Agreement empowers the National Constitutional Review Commission to ensure civic education involving as many South Sudanese as possible.

The most likely approach for civic engagements will be in the form of workshops, public awareness and expert submissions which, in my view, are tokenistic and hardly meet the popular participation threshold. Scholars define popular participation in constitution-making to include people’s involvement in agenda-setting, and decision-making throughout the constitution-making process. In South Sudan, this would mean involving people in discussing critical aspects of the constitution – such as presidential term limits, the type of federalism, number and powers of states and federal government, among others. Efforts would thus need to be made to consult with all people, including refugees, IDPs and the diaspora. These enablers of unrestrained and inclusive civic engagement are key to the legitimacy of the resulting constitution. The constitution-making process in South Sudan, however, does not stipulate a referendum to ratify the ‘permanent’ constitution and neither does it provide for an elected constituent assembly.

III – Other Auxiliary Self-Dealing Motivations

In addition to above risks of elites capture and limited popular participation in constitution-making, there are other two possible factors to consider:

Tendency to Maintain the “Big Tent” Governance Formula for the Sake of Peace

The Revitalised Peace Agreement establishes an expansive structure of government–650 members of parliament, 45 ministers, 10 being deputies– all to accommodate armed and non-armed opposition groups. These structures are replicated in all 10 States and three Administrative Area with nominal alterations.

The tendency to maintain this “big tent” government militates against adopting a confederate governance formula in which all three regions are represented in the presidency. After all, there have been hints that constitution makers will adopt a rotational presidency where the three regions would rotate the presidential seat.

The “big tent” formula is a conflict mitigating strategy used in post conflict or transitional societies to incorporates ethnic armed insurgent groups and ensures regional representation, an approach that has been experimented with in Bosnia Herzegovina.

It is likely that these debates will be a big part in the federalism dialogue that the Revitalised Peace Agreement which proposes federalism without specifying whether the country shall adopt ethnic federalism, territorial (including regional?) federalism, fiscal federalism, or regional confederate.

These propositions of types of federalism are up in the air (yet to be formally discussed) and will confront the constitution-making process once it commences. But what is important to note is that whatever model is adopted will reflect political interests of political actors, including the character of the current 6-person presidency.

The constitution-making is also being undertaken at a time of multiple intricacies, dilemmas, and uncertainties.

First, there is an acute humanitarian crisis induced, in part, by severe floods, insecurity, communal violence and economic decline that have uprooted populations and sowed seeds of division. This might affect people’s participation in the constitution-making process.

Second, the bad omens of the 2013 conflict have not been addressed. The whole of chapter five of the Revitalised Peace Agreement that provides for reconciliation, healing, and judicial accountability has not been implemented. Lack of peace among communities and absence of justice for violations accruing from [the civil unrest? of] December 2013 and 2016 could threaten constitution-making process.

Last, there is shrinking civic space and absence of labelled political playing field necessary for robust popular engagement by political parties, civil society organisations and ordinary citizens.

These uncertainties, including the absence of meaningful public participation, and allure of power create a risk that parties may write themselves into the ‘permanent’ constitution.

Conclusion

The practice of elite power-sharing is becoming entrenched in the South Sudanese politics. Equal representation in government is a key democratic value that can be expressed through democratic processes such as elections in which parties form a government through coalition building. The practice in South Sudan is that political power is procured, retained or lost through bullets – not ballots. The 6-person presidency, for instance, is a consociational unity government established by a peace agreement signed to silence the guns. The parties’ insistence to write the ‘permanent’ constitution in which they control the process and without consensus on a governance formula is a risk to ‘constitutionalising’ the status quo.

Joseph Geng Akech is Adjunct Assistant Professor of Law, University of Juba, South Sudan. Researcher in constitutional designs, human rights, and transitional justice

Suggested Citation, Joseph Geng Akech ‘Elite Capture and Popular Participation in South Sudan’s Constitution Making?’, IACL-AIDC Blog (13 December 2022) https://blog-iacl-aidc.org/new-blog-3/2022/12/13/elite-capture-and-popular-participation-in-south-sudans-constitution-making.