By Juol Nhomngek Gec
Juba South Sudan
After the December 2013 conflict that resulted into Civil war with different groups of rebels of which the SPLM-IO is one of them, the Peace was signed in 2015 but failed and then Revitalized in September 2018.
Consequently, the Revitalized Agreement or R-ARCSS, 2018, imposes on the Parties to it, to enact the Permanent Constitution. This is provided in Article 6 (7)-(11). This Article requires the parties to enact the Constitution within the specified period.
In pursuance to Article 6 as cited above, the Parties to the Revitalized Agreement namely, the Incumbent TGoNU or the SPLM-IG, the SPLM-IO, SSOA, OPP and FDs, immediately began the process of Constitution making.
The guiding principles of the Constitution making process in South Sudan should include the opportunity for peace building, encouraging compliance with the International norms and standards, should ensure National ownership, it must support inclusivity, participation and transparency, it should mobilize and coordinate a wide range of expertise and promote adequate follow up.
Besides, thee Constitution making process covers the elements such as a high level negotiation between key Constituencies leading to an Agreement on how Constitution making is to proceed to final adoption procedures.
Hence, the question is what is the Constitution making and how is it different from the Constitution building? Answering these two questions properly can help us draft durable Constitution that will achieve the stability of South Sudan but the failure to answer them properly may be a woe to South Sudan.
According to the Constitutional law, the Constitution making process is a broad concept that covers the process of drafting and substance of a New Constitution or reforms of an existing Constitution. It deals with how to end the war by establishing peace and security.
The Constitution making is preceded by the drafting of the legislation that outlines procedures and the requirements in making the permanent Constitution. It has some elements which must be reflected in the Act of Parliament or in the Constitutional making or Amendment Act .
The elements that the Constitution making process must contain include: high level negotiation between key Constituencies leading to an Agreement on how the Constitution-making is to proceed to final adoption procedures.
The Constitution making process is however different from Constitution building in a way that it deals with the establishment of the rule of law by establishing institutions, procedures and rules for Constitution Making or drafting, giving legal effect to the Constitution and implementation.
The Constitution building is a long term legal project and historical process. It aims at the pursuit of legitimate Constitutional outcomes rather than only a Constitutional text as such.
In relation to South Sudan at current stage, what is going on now is the Constitution making process. It is not therefore be taken less seriously as it is likely to undermine the Constitution building process due to the following challenges that are likely to ensure in the process. The challenges are:
First of all, if the attention is not paid to the current Constitution making process, it may overlook the mechanisms for Constitution building after the current Constitution making process. This is because it may be impossible to start the process of Constitution building unless the security arrangements and Political stability is in place. The present violent conflict at all levels in the country may undermine the Constitution building after the Constitution making.
Second to it, the existence of different armed groups which makes the control of guns and arms near to impossible may embolden any party that feels that the process of Constitution building is not in its favour to resort to conflict that may stop the process of Constitution building and returns the country to zero level in term of Constitution making and building processes.
Third, there is likelihood of giving a priority to achieving peace at all costs during the Constitution making, which poses risks to the Constitution building process. As it has been observed, prioritizing the management of violence and insecurity as we are doing currently at the expense of building Constructional Consensus may doom the entire process of Constitution building.
The reason that it may negatively affect the Constitution building is that concentrating on how to end the violence and insecurity without building Construction Consensus is that it does not allow sufficient Political deliberation among citizens and Constitution drafters. It may reasonably be considered as a causal factor in the subsequent difficulty to implementing the Constitution.
Fourth, concentrating much on the process of Constitution makingo which is a short term process may not cover the large population that includes internally displaced persons and refugees. Hence, the inclusion of the internally displaced persons and refugees in foreign countries may prove difficult due to the logistical and security costs of including them in the long term-Constitution building process. This is because the Construction making process must involve the wider public Consultation which lays the base of Constitution building and its ownership by the Public or citizens.
Fifth, the emphasis on power sharing as we see now among the warring parties as a way of appeasing different armed groups or repressive rulers, which may sacrifice electoral accountability for the sake of stability. Thus, there is likelihood of corruption and abuse of power instead of diminishing become stronger where the focus is geared towards reducing violence than towards ensuring Constituion building to achieve more accountable Government.
Sixtth, sadly, with the current emphasis on how to end the violence and insecurity, we may have little time to establish a legal framework to guide us in future as we embark on the Constitution building. It should be understood that where those who are drafting the Constitution seek to address only the conflict or security dimension of State fragility, which only deals with power sharing in order to either appease armed groups or repressive rulers, the Constitution building process may be affected.
In order to effectively address the above challenges, the Constitution Drafters, should consider the following, which I strongly recommend:
First, where possible, peace building which is a short term process should be disconnected from Constituion building. The Constitution building is the most important and a long process that need to be safeguard jealously. If proper attention is not paid to the Constitution building process, no matter how good the Constitution may be, it may be destroyed by the Executive in the long run as it had been the case with the Constitution of the Republic of Uganda, 1995.
The Constitution of the Republic of Uganda, 1995 was one of the best Constituions in the World but with time, the Executive headed by the current president turned against the basis provisions of the Constitution that renders it vulnerable to the whims of the Executive.
In that respect there is a need to make sure that the ownership of the Constituion is based under the care of different stakeholders who are always ready to defend the Constituion by all costs. Yash Pal Gai, the Professor of Constituional law and Constituionalism clearly points out in one of his works that the Constituion as a document does not guarantee its own protection but its protection is guaranteed externally. For the Constituion of South Sudan to be strong, it must be protected by all citizens against the Executive.
The two step processes of Constituion making should be ensured. These are: (1) use an interim or Transitional Constituional Plan, specifically addressing stability and with stronger focus on long terms vision of institutional design and (2) allow a final Constitution to emerge with a stronger focus on a long-term vision of institutional design.
Second, the Constitutional Drafters should aim at identifying whether the aim of stopping violence also effectively address other Constitutional issues such as corruption and accountable Government and the mass abuse of human rights. If it addresses the two at ago then the process is complete and can lead to Constitution building after the Constitution making.
Third, where viable, the peace building should be disconnected from Constitution building in order to prevent the spillover of the present problems to Constitution building process and to permit the division of specialized body to give adequate attention to all Constituional issues during the Constitution making and building as well.
Fourth and finally, peace mediators should allow scope for power brokers to concentrate on current issues affecting Constituion making process and later examine the problems that are specially associated with the Constitution building process.
In conclusion, the Constitution building must include actors who have engaged in violent Conflict, perhaps without a clear military Victor, or where peace Agreement has required Constituional changes. Hence, as it has been observed, it may be impossible to start the process of Constitution building before a peace Agreement or interim security pact is in place. We have to bear in mind that giving priority to achieving peace at all costs also poses risks to the Constitution-building process.
NB// the writer is the Lawyer by Profession and the SPLM-IO Nominated MP representing Cueibet County Lakes State South Sudan at National Legislative Assembly (RTLA). He can be reached through Juolnhomngek@gmail.com
A practical Guide to Constitution building: An Introduction. International Institute for Democracy and Electoral Assistance (International IDEA), 2011.