CTN Blog: "12 Years in the Making: A Cumbersome Constitution-Making Process in South Sudan"
South Sudan presents a challenging context for constitution-making. It is one of many examples of constitution-making mandated by a peace agreement, and, like many such cases, a range of different external actors are involved in supporting the process. Both of these issues are topics of current research by CTN. In this blog post Dr Mark Deng, Expert Affiliate of CTN, presents his insights into the extended constitution-making process in South Sudan and suggests some ways that it can be strengthened to promote legitimacy and effectiveness.
South Sudan is still being governed under a provisional law – the Transitional Constitution 2011 − 12 years after achieving its independence. An attempt was made in 2012 to draft a new constitution but the process stalled in 2013 as a result of the civil war.
With war came the urgency to wage peace. With the support of external actors, the warring parties managed to sign a peace agreement in 2015. This broke down in 2016 but it was revitalised in 2018, leading to the formation of the current government of national unity in 2020.
The revitalised agreement requires parliament to enact a law to govern the drafting process of a new constitution. Parliament passed this law – known as the Constitution Making Process Act 2022 − in 2021 and it came into force on 21 December 2022.
The Act mandates a popular process which is in the interest of the people of South Sudan. The Act also requires the Constitution to be ratified by Parliament after having been passed by a National Constitutional Conference − a deliberative assembly in which all sections of South Sudanese society are to be represented.
The drafting process is said to commence within 45 days after the Act came into force on December 2022. It has been almost 6 months since that date but the process has yet to see the light of day.
Three key measures could be taken to enhance the process. The first is holding elections before the process commences. This would give the government − both the President and Parliament − democratic legitimacy and authority to supervise the process. At the moment, the government has not a democratic mandate because it was established under the revitalised agreement, not elected. Democratic legitimacy of Parliament in particular matters, given that Parliament is going to ratify the Constitution.
Ratification of the Constitution by an elected Parliament would at least mean an indirect legitimacy for the Constitution. This would be consistent with the overriding requirements of the Act and the 2018 revitalised agreement that a permanent constitution must be based on the will of the people of South Sudan as the source of power and legitimacy.
The second is to build safeguards into the process to counter elite capture, and specifically to counter the SPLM’s urges to control the process as it did in 2011 (the SPLM is the ruling party in South Sudan). Pre-constitutional principles, intended as guiding principles for the process, could be one way to guard against elite capture. These were used in the 1996 South African constitution-making (and also in Namibia). They were effective in committing the political actors to the agreed process, ensuring the Constitution was drafted accordingly.
Alternatively, Parliament could be stripped of its role to have a final say on the Constitution. This would eliminate the possibility that it could alter the Constitution ex post facto to suit the government’s own agenda.
The final thing that may need to be reconsidered is the deliberative role of the two assemblies – the National Constitutional Conference and Parliament. The former is said to deliberate on and pass a draft constitution which will then be submitted to the latter for final deliberation and approval.
It is not necessary to have two deliberative assemblies for many important reasons, not least the government’s tight budget and other competing funding responsibilities. In short, it is not cost-effective. It would not hurt the process to drop the National Constitutional Conference, as long as the Parliament has democratic legitimacy.
All these suggestions would require the Act to be amended if the government of South Sudan were to take them into consideration.
On the whole, South Sudan’s constitution-making process is relatively well-designed. Still, there is a fear that the SPLM elites may capture the process. This is why it is critical to embed effective safeguards in the process. These can come in the form of constitutional principles. Doing so will ensure the process delivers the best result for the country.