Steps to be taken in making the permanent constitution in South Sudan 

Salva Kiir signed South Sudan's constitution while wearing a hat from George W. Bush.Salva Kiir signed South Sudan's constitution while wearing a hat from George W. Bush.

Juol Nhomngek Gec, Juba South Sudan

The Revitalized Agreement on the Resolution of Conflict in the Republic of South Sudan-R-ARCSS, 2018 provides for the Parameters of Permanent Constituents is clearly stated in Chapter VI of the Agreement (R-ARCSS).

Article 6.1 of the R-ARCSS. provides that the R-TGONU shall initiate and oversee a Permanent Constitution-making process during the Transitional Period. The Transitional Period was about to commence eight (8) months after the signing of the Revitalized Agreement or R, -ARCSS.

However, due to several postponements, the Transitional Period began on February 22, 2020 when the Government or R-TGONU was formed. With the beginning of Transitional Period that was marked by the formation of the R-TGONU, the Permanent Constitution-making process was supposed to have begun and it is expected to end after 24 Months (Article 6.5, R-ARCSS).

Article 6.6 of the R, -ARCSS provides that the Executive of the Revitalized TGoNU after adequate consultations with all stakeholders including: The Representatives of R-TGONU, Political Parties, Faith-based groups, women groups, youth, ethnic minorities, representatives of the private sector, CSO groups, academics, people with special needs and other professionals.

Article 6.14 of the R-ARCSS, 2018, and Article 202 A(11)TCSS, 2020 as amended further provide that the process of appointment of the above stakeholders and groups shall be defined in the Reviewed and enacted legislation governing the Permanent Constitution making process.

The R-ARCSS provides that the process of the Permanent Constitution-making shall be proceeded by works to prepare the members of National Constitutional Amendment Committee (NCAC). It is the outcomes of the workshops that shall form the basis for drafting the legislation to be enacted to govern the Constitution making process (Article 6.9 of the R-ARCSS).

It is in the legislation to govern the Permanent Constitution-making process as already referred to above that is supposed to provide for the bodies responsible for the Permanent Constitution-making process from one stage to the other until when it is adopted as the Permanent Constitution of South Sudan by the Revitalized Transitional National Legislative Assembly-RTNLA.

The first body established by the above referred to legislation is the National Constitutional Review Commission (NCRC) (Articles 1.5.1 and 6.14 R-ARCSS). The main roles or the NCRC are:

To review the Transitional Constitutional of South Sudan-TCSS and collect views and suggestions from the Stakeholders or general Public. Some of the Stakeholders are already listed above.

To conduct a nationwide Public information campaign and Civic education on Constitutional issues (Article 202 (8) TCSS).

To seek the assistance of other Experts in its work (Article 202 (10) TCSS).

To adopt and present a Draft Constitutional text and Explanatory Report to the National Constitutional Conference, which under the Constitution-NCC. It should be noted that in the past the Draft Permanent Constitution was supposed to have been presented to the President.

The President is now replaced with NCC as the work of the President is only to assent to the Draft Permanent Constitution Text that becomes the law immediately after the President signs it or after a month when the President refuses to sign it into the law.

Though the Revitalized Agreement or R-ARCSS does not provide for the methods of collecting views or information from the public during the Consultation process during the Permanent Constitution-making process, the following methods or tools are supposed to be used by the NCRC;

Civic Education, Public Consultations, which include: face-to-face meetings, questionnaires, media, websites and other technologies, polling and referendum.

The second body after NCRC is Preparatory Subcommittee that shall work in the convening of the National Constitutional Conference-NCC. The NCC. The main mandate of the NCC is to deliberate on and adopt the Draft Constitutional Text.

The question is, which body is responsible for the drafting of the Permanent Constitution before it is presented to the NCC or does the NCC receive the raw Report from NCRC and then draft the Draft Permanent Constitution from that report?

In the R, -ARCSS and the TCSS as amended in 2020 do not explicitly identify the drafting body. While the NCRC is envisages to be tasked with reviewing of the TCSS in accordance with the legislation governing the Permanent Constitution-making process, the responsibility of preparing the Draft Permanent Constitution Text is not clearly stated.

However, one thing is clear that the responsibilities of drafting and adopting the Permanent Constitution are distributed among the three bodies referred to in the process of Permanent Constitution-making process. These are: NCRC, NCC and Revitalized Transitional National Legislative Assembly-RTNLA that will turn itself into Constituent Assembly (CA) for the purpose of deliberating and adopting the Permanent Constitution.

Thus, it appears that the Preparatory Subcommittee in collaboration with the NCRC is supposed to draft the Permanent Constitution Text based on the report from the NCRC after Consultations with the Public as part of preparation.

It is advisable that once the NCRC and Preparatory Subcommittee finish their work, they should automatically join the NCC and the Secretariat of NCRC is dissolved. In addition, it is also desirable that even though Preparatory Subcommittee may to extend be an independent body it should be a Department under the Secretariat of NCRC.

This will help in coordination in the works between NCRC, Preparatory Subcommittee, NCC and the CA. This will make the work of Drafting of the Permanent Constitution not contentious in at any stage as the bodies will be knowing the final results since they all participated in the process.

After all, it is not harmful to draft the Constitutional text by a given body in the process of the Permanent Constitution Making as long as it is strictly based on the views collected by the NCRC. Besides, the Draft Permanent Constitution is not the final document as it shall be reviewed by two bodies that is, the NCC and CA.

Thus, after the NCC received the Drafted Permanent Constitution, deliberates on and adopt it, it shall present it to the Minister for Justice and the Ministerv shall Present the same Draft Constitutional text as it is to the R-TNLA that shall transform itself into Constituent Assembly upon receiving the Draft Permanent Constitution Text from the Minister for Justice.

The Minister for Justice and Constitutional Affairs after receiving the Constitutional Text adopted by the NCC, he or she shall present it to the Constituent Assembly (CA) as it is for deliberation and adoption (Article 6.10 of the R-ARCSS).

The word deliberation in Article 6.10 of the R-ARCSS is a process of thoughtfully weighing options, usually prior to voting. Therefore, deliberation refers to emphasize the use of logic and reason as opposed to power-struggle, creativity, or dialogue.

. According to the foregoing definition of deliberation, it means that the Constituent Assembly have the power to make some recommendations to be included or removed from the text by the NCC. This means that the NCC cannot dissolved until the Constituent Assembly has deliberated and adopted the Permanent Constitution Text.

Nonetheless, where the NCC rejects the recommendations to be included in or subtracted from the Draft   Permanent Constitutional Text, the Constituent Assembly has the duty to adopt the Draft Permanent Constitution as it is and passed it to the President for assent.

In summary the Revitalized Agreement provides for the following procedures and timeline. The timeline for the Agreement is 36 Months that cannot be extended. The Permanent Constitution Making Process immediately begins with the starting of the Transitional Period.

The Process of Permanent Constitution Making is supposed to be completed two years within the Transitional Period, that is, within 24 Months of the Transitional Period. The Permanent Constitution Making Process is supposed to begin with the Reconstitution of National Constitutional Amendment Committee-NCAC.

The NCAC is supposed to be conducting series of workshops (Article 6.7. R-ARCSS). The workshops are supposed to end after six months. The outcomes of the workshops are then to be the basis of enacting of the legislation governing Permanent Constitution Making Process.

The said Legislation is supposed to establish bodies that are to handle the whole process to the end. The bodies specifically stated to be established by the said Legislation are: NCRC, Preparatory Subcommittee and the NCC. The Constituent Assembly which the Parliament is established by the Agreement or R-ARCSS.

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