The Transitional Constitution of the Republic of South Sudan 2011

The Transitional Constitution of the Republic of South Sudan 2011 – An Expert View from the Outside

Study on Transitiona­l Constitution of th­e Republic of South Sudan

Executive Summary

This study of the Transitional Constitution of South Sudan 2011 has been drafted at the request of the President of the Republic of South Sudan and commissioned by the Office of the Special Envoy for the Sudan and the Horn of Africa of the Swiss Department of Foreign Affairs shortly after the emergence of the new state on July 9, 2011. The study has been drawn up in the context of the process leading towards the drafting of the Permanent Constitution. The authors, a team of Professors at the University of Zurich Law School and researchers from the Centre for Democracy Studies Aarau (Switzerland), were asked to provide a critical legal evaluation of the Transitional Constitution, to analyse the constitution making procedures set out in that text, especially from a comparative perspective, and where appropriate to identify relevant procedures that could be locally adapted.

The comparative analysis identified a common dilemma that has historically afflicted constitution making exercises across the globe. Typically, there is a trade-off between maximising popular input into the drafting of the constitution -such as through a constituent assembly- or alternatively involving the people directly in the ratification of the new constitution. This trade-off is of relevance for the case of South Sudan. In looking more closely at some of the African constitution making processes what is quite extraordinary is how participatory constitution making exercises can be in terms of engaging the people in towns and villages in extensive deliberations. From comparative perspective, it is all the more striking given that this takes place in countries with frequently little tradition of democracy and institutionally organised political activity. In many respects, African constitution making can be favourably contrasted with the elite driven affairs of many European democracies. Nonetheless, the cases analysed demonstrate that even an open and participatory constitution making exercises can be insufficient for generating sustainable democratic institutions. Failure is a common outcome. What is noteworthy of those cases that have produced viable democratic outcomes, however, is that an open and participatory constitution making process was a crucial component of the transition process.

In the next step, a thorough legal analysis of the Transitional Constitution involved not only focusing on the process leading up to the drafting and enactment of the Transitional Constitution but also its content, that is to say its structure and wording. The Transitional Constitution bears much resemblance with the preceding Interim Constitution that was part of the Comprehensive Peace Agreement 2005. Yet it differs from that model in a number of ways. First, it was drafted by a body that was not really representative of the country’s political landscape, under severe time constraints and in a process generally considered to have lacked transparency. Second, while politically important, the Transitional Constitution was constitutionally unnecessary, as the Interim Constitution was designed to survive to independence. Finally, with regard to its content, the Transitional Constitution marks a tendency to accentuate both horizontal and vertical power. Among the organs of the National Government the President has acquired a dominant position that has little institutional counterweight. Between the National Government and the states there is strong imbalance in favour of the former. The local government is dependent on both the National Government and the states, especially in terms of financial resources. The Traditional Authorities are formally recognized but marginalized and losing both power and respect. As a result it is difficult to see how the Transitional Constitution could enjoy much popularity among the people let alone broader political, social and economic stakeholders.

The road map towards a new constitution as shaped by the Transitional Constitution entails four stages that are sequenced in a curious way. Instead of starting on a narrow expert basis that subsequently gets more representative and ends up in a mechanism that is capable of producing an optimum of legitimacy, the Permanent Constitution Process begins with a broad Review Commission, continues through an inclusive Constitutional Conference, but then ends up in a simple majority vote of the Legislature, all stages being in control of the Executive.

The only recommendation the expert team dares to address to the framers of the new Constitution would be to introduce the referendum device into the constitution making process, either through formal amendment of the Transitional Constitution or through reliance on the existing referendum provision. This could thus erase most of the criticisms that have been raised, in this report and elsewhere, concerning the Transitional Constitution as a whole and the Permanent Constitution Process in particular. The gain in legitimacy for both the actual Government and the future Constitution would be enormous.

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Study on Transitiona­l Constitution of th­e Republic of South Sudan

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