South Sudan's constitution-making process is on shaky ground: how to firm it up

South Sudan's transitional constitution mandates the drafting of a permanent constitution to usher in a new political order for the country. This process began in 2012 with the appointment of a national constitutional review commission as the drafting body.

The review commission began its work in mid 2013, mainly running information sessions on the drafting process. But it immediately faced serious challenges, including insecurity brought about by the civil war that erupted the same year. The process stalled as a result.

In May 2021, South Sudan's president, Salva Kiir Mayardit, announced a two-day workshop to resurrect the process. It was agreed that the process would proceed in three phases. The first was the enactment of a law to govern the process. The bill has been drafted and is before the transitional legislature.

The second phase was the establishment of a constitutional conference to debate and pass a draft constitutional text. Finally, the transitional legislature was to be transformed into a constituent assembly to approve a new constitution.

The entire process was to be completed within 24 months of the start of the transitional period. That period began on 22 February 2020, so it appears that time has run out. It is possible, however, that the process will be extended.

Will this process deliver a democratically acceptable permanent constitution? My PhD thesis discussed some of the main shortcomings of the process. The first is the question of legitimacy, given the review commission will be appointed by an unelected government. The second concern is that the process is going to be led by the political elites. This could restrict popular participation.

I argue that the process should be revised to foster legitimacy from the start. The review commission needs to have legitimacy as the drafting body. Also, it is not necessary for two national assemblies – the constitutional conference and the transitional legislature – to play similar roles.

Without this revision, the process is unlikely to deliver a democratic constitution. A democratic constitution is essential to building lasting peace in South Sudan. It is also needed to avoid concentration of power in the national government.

The review commission is to be appointed by the president in consultation with opposition parties and other stakeholders. This is not unusual in constitution-making. The 2010 Kenyan constitutional review committee, for example, was presidentially appointed .

But South Sudan's president doesn't have a democratic mandate. His tenure expired in 2015 but he did not seek a second mandate. Instead, he asked parliament to extend both his and parliament's terms.

To give the review commission legitimacy, the drafting process could be deferred until a new president and a new parliament are elected in 2023. There are only 12 months left of the transitional period. It is not possible to complete the drafting process within this time.

A new president would have authority and legitimacy to appoint the review commission. Likewise, a new parliament would have authority and legitimacy to deliberate on and approve a permanent constitution.

Another option to give the process legitimacy could be to elect a constitutional assembly. Such a body would also be more likely to withstand political pressures from the government than an appointed commission. This would give the drafting process some level of independence and integrity.

My PhD thesis discussed various methods for electing this body. One is proportional representation – in which candidates are elected in proportion to the number of votes they receive. This gives minor parties a chance to win seats, and the result is broader representation.

The transitional constitution and the revitalised agreement mandate a constitutional conference and the transitional legislature as deliberative assemblies.

I argue that the two assemblies are not needed, for various reasons. First, they play essentially the same role – to debate and pass a draft permanent constitution. The transitional legislature should have this function. Everyone else could participate in the process through the broader popular consultation.

Second, it will require a substantial amount of money to run the constitutional conference. The money is not there. In fact, lack of money was one reason the process collapsed in 2013 as the government argued .

Finally, the constitutional conference could be a breeding ground for serious problems. For example, delegates could be bribed to vote for reasons other than the best interests of the country. This is very likely, given corruption is at an unprecedented level in the country.

The ruling Sudan People's Liberation Movement dominated the 2011 drafting process of the transitional constitution. This has had consequences. For example, it led to concentration of power in the executive president, reflected in his power to remove an elected state governor from office.

As a result, the transitional constitution has failed to create an environment conducive to democracy, the rule of law and constitutionalism. In short, the transitional constitution has encouraged authoritarian rule.

It stands to reason that the ruling party will again seek to control the permanent constitution drafting process. Its political future is at stake. This could result in another authoritarian constitution imposed on the country.

South Sudan's current process is unlikely to achieve a democratic constitution. My view is that a new approach, geared toward achieving legitimacy, is needed. This may require suspending the process until the country elects a new government in 2023. A new government will have a democratic mandate to appoint a drafting body and to supervise the process.

An alternative approach is to have an elected constitutional assembly to lead the process. This would achieve legitimacy for a permanent constitution while limiting government interference in the process.

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