There is a growing debate among the South Sudan political elite on whether the country should adopt a permanent constitution before or after the December 2014 elections.
With only six months remaining before the country holds its first-ever elections, President Salva Kiir and his coterie are insisting that the country must hold elections in December 2024—with or without a permanent constitution.
President Kiir maintains that the people of South Sudan are eager to choose their leaders via the ballot after many years of transitional governments.
However, the opposition and many observers including the United Nations are pessimistic that the country that got independence in July 2011, is not only incapable of conducting free and credible elections in December, it also cannot enact a permanent constitution within six months.
According to the 2018 peace agreement, South Sudan is four years behind schedule since the permanent constitution was supposed to be in effect by September 2020.
Chapter Six of the 2018 peace deal states, “The permanent constitution shall be completed not later than twenty-four (24) months following the establishment of the Transitional Period and shall be in place to guide the elections towards the end of the Transition.”
So far, the National Constitutional Review Commission(NCRC)—in charge of drafting the permanent constitution from oral presentations and memoranda—has completed collecting public views and submitted its report to the Ministry of Justice and Constitutional Affairs.
Once the draft is approved by the ministry, the NCRC is supposed to convene a National Constitutional Conference (NCC) that will debate and approve the final document.
But now there is a growing concern among the opposition that NCRC is hogging the limelight and that it is almost taking over the roles that are preserved for the NCC.
Dr Lam Akol, the leader of the National Democratic Movement (NDM) party, has called for the disbandment of the NCRC after it submitted the report to the Ministry of Justice and Constitutional Affairs. “Too much attention has been given to the NCRC to the extent of even assuming the powers reserved for the NCC,” said Dr Akol in his recent article: Revisiting the Permanent Constitution Making Process.
A veteran politician and a former Foreign Minister in the former larger Sudan, Dr Akol argues that the current constitution-making arrangements are yet to seek the approval of people through the NCC while time is running out.
“The promulgation of a people-centred permanent constitution can only be done by a constitutional conference that is inclusive of all sections of our society,” said Dr Akol
He said that there can never be a draft constitution without first resolving at least two cardinal issues. These are the system of rule (will the country be adopting a parliamentary, presidential or hybrid system) and the type of federalism that best suits the peculiar conditions of South Sudan.
Dr Akol was basing his argument on Chapter Six of the 2018 Peace Agreement which provides for public participation through citizen’s submissions and participation at the NCC.
“The permanent constitution shall support communal rights, particularly the ability of communities to express their identities, maintain their history, and grow their language. It should also recognise ethnic and geographical diversity,” states Chapter Six.
It continues; “The transitional administration must guarantee public participation in the creation of the nation’s constitution and governance by holding democratic, free, and fair elections and distributing resources and powers to the states and counties”.
However, Beny Gideon Mabor, the Undersecretary in the Ministry of East African Community Affairs, criticises Dr Akol for attempting to undervalue NCRC’s function, which includes public education efforts in addition to viewpoint collection to allow regular people to actively participate in the NCC.
He said that the NCRC has the role of not only collecting views from the public, but a mandate to conduct public education to enable ordinary people to effectively participate in the NCC
“Given the high levels of illiteracy in South Sudan, how would the public effectively participate in the NCC without adequate sensitization through the NCRC’s educational function,” he said.
Mr Mabor says that NCRC remains a key interlocutor in the design of the permanent constitution, guiding the debate on addressing all the contentious issues such as federalism and the sharing of resources between the centre and the 12 states.
“I believe it would be more sensible to propose another layer of duty to be assigned to the NCRC – to convene a two-day National Stakeholders Convention immediately following the completion of the constitutional drafting committee CDC’s recruitment to address these ‘cardinal issues,” said Mr Mabor.
According to the 2018 Peace Agreement, the country needs a permanent constitution to guide the electoral process.
As it were, the South Sudan Transitional Constitution, 2011—which is currently in operation— is a“copy and paste” constitution of the former larger Sudan that was accepted by the country 13 years ago after it got independence, because it was impractical to hold a referendum on secession and pass a new constitution at the same time.
Besides the four-year delay and differences among politicians on the contents, the constitution-making process is also facing the challenge of resources. The country needs about $40 million todevelop a permanent constitution but the government has presented a supplemental budget that will cover only 63 percent of the money required—with the hope that donors and friends of South Sudan would chip in.
