Observation and Recommendations on South Sudan Draft Transitional Constitution (2011) 24 April 2011 - Jacob Akol
By Dr. James Okuk A few days back, a debate ensued between my and some concerned Southern Sudanese political activists about the draft transitional constitution of the Republic of South Sudan. Some of the activists stated that the draft should be rejected even before it could be seen. Others said that it would not be fair to tell the drafters to soak their work in water and drink the taste of its water before seeing and studying what they have jot down to be called constitution of the new Republic. On my side, I thought it fair to hold on before rushing in giving crosses or roses to the drafters. Gratefully enough, a concerned savvy citizen of South sent me the draft of the transitional constitution on the same day it was handed to the President of the Government of Southern Sudan (GOSS). I promised him to study the draft and make my detailed observation and recommendations. Having studied the draft constitution critically, the uncomfortable overall observation I have is that the ideas jot down in many of its articles by the Sudan People’s Liberation Movement (SPLM) Party showed no difference from the bad ideas of the National Congress Party (NCP) of the Sudan. It almost looked like cut and paste of the NCP’s attitude from the Sudan to become SPLM’s attitude in South Sudan. But it is really shameful for a Liberation Movement in the caliber of SPLM whose leaders have been pretending as liberation strugglers for decades, against injustice and marginalization, to come up with a draft constitution that promotes one-party state’s injustice and dictatorship with lifetime SPLM President in the name of transition with eleven years of guerilla power self-rewards (2005 - 2016) as usual. For heaven sake what transitional period is this? God have mercy and save us! Any attempt to justify the vices expressed in the draft constitution under pretext of transitional period when there is, in fact, no transition, is totally weird. Notwithstanding, I still hope something can be rescued from abyss of the draft constitution if the SPLM leaders become capable of listening to the voices of wisdom. Below are some of the rescue prescriptions from my sincere opinion. 1. ON THE TITLE AND PREAMBLE: The use of the term “Transitional” is contradictory to the reality expressed in the very draft constitution that from 9th July 2011, South Sudan is going to be declared as a republic. So, what “transition” is the draft constitution talking about when there will not be any transition of the new state to something else by then? Will South Sudan after its declaration as an independent country with international recognition be regarded as transitional country? The right terminology to use could be: “The Interim Constitution of the Republic of South Sudan (2011).” This terminology will give you a clear picture that there is something permanent coming for South Sudan (Its Land, People, Government and Sovereignty) in totality after 9th July 2011. Also in paragraph six of the Preamble there is need to add “Environmental Sustainability” for the paragraph to read: “Determined to lay the foundation for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law, and environmental sustainability;”. Further, the concluding paragraph of the Preamble which reads: “Do hereby, through this Southern Sudan Legislative Assembly, amend the Interim Constitution of Southern Sudan, 2005, which shall be adopted and hereafter referred to as the “Transitional Constitution of the Republic of South Sudan, 2011,” and shall be the supreme law by which the independent and sovereign South Sudan shall be governed during the Transitional Period, and undertake to abide by, respect and defend it.” This need to be revised to remove the “transitional” terminology and use “interim” one, instead. Even giving Southern Sudan Legislative Assembly (SSLA) power to adopt “The Interim Constitution of South Sudan (2011)” is a mismatch of authoritative levels of the current government. The SSLA is a sub-parliament of one of the levels of the Sudan Government. Since South Sudan decided to secede from the Sudan, it does not make sense to give the Sudan power (at whatever level) to promulgate a constitution for the new Independent Republic. There should be total delinking if South Sudan wants to look Sovereign. Not only this, but does it make sense to tell someone to be his/her own judge, especially in issues that involve power loss or gain? The SSLA members will be in total consensus to give themselves more years of “transition,” to use the contradictory terminology. They can only adopt the draft constitution if it allows them to be in charge of law-making in South Sudan for a longer period not less than five years (up to 2016). But this shall not be fair at all for the people of South Sudan. The SSLA is supposed to be dissolved before 9th July 2011. If some of its members are lucky to come back as members of new South Sudan National (Federal) Legislative Assembly (from both the House of Deputies and Council of States) appointed ad interim by South Sudan Presidential Decree in accordance with South Sudanese political parties’ representation quotas, then it could be the right time to give them the power to adopt the draft interim constitution of the Republic. Thus, I recommend that the draft Interim Constitution of the Republic of South Sudan (2011) should not be taken to SSLA at all. It should be legitimized by South Sudan Political Parties’ Leadership Forum only unless agreed thereafter to take it to the appointed South Sudan Federal Legislative Assembly for further legitimization. 2. ON PART ONE: Definition of South Sudan is not satisfactory. Referring to Article 1(2), it is not yet known whether Abyei Area should belong to the Sudan or South Sudan because the referendum for its self-determination has not yet taken place to come up with the final verdict. Even the International Court of Arbitration did not rule whether Abyei Area should belong to the Sudan or South Sudan. It only defined the borders of Abyei Area without giving a verdict whether these borders belong to the Sudan or South Sudan. Therefore, Abyei Area should be left out in the Interim Constitution of the Republic of South Sudan (2011), until its status becomes definite to be belonging to South Sudan, perhaps, in future. Also referring to Article 1(3), there is no need to mention the countries that have borders with South Sudan because this is obvious. Who knows, even some of these countries may change their names, and this will waste South Sudan time again to amend the constitution in order to adopt the new names. This Article should be deleted. To appreciate the value of the mixture of presidential and parliamentary system of governance in South Sudan, Part One of the draft Interim Constitution should defined South Sudan as a Republic whose Ten States co-exist in an Indissolvable Union represented by Federal Government that is empowered with sovereignty in the territorial borders drawn by the British and left intact on January 1, 1956, as well as in external representations and regional blocs and/or alliances. It should also define South Sudan as a democracy whose government powers emanate from the people who elect periodically the Federal President of the Republic, Members of the Federal Parliament, States Governors, Members of States Parliaments, Counties Commissioners and Members of Counties Councils in accordance with promulgated constitutional provisions. Further, it should define South Sudan as a democratic republic whose Prime Minister is elected by Members of the Federal Parliament to manage the institutions of the Government through Ministers and other Executive authorities in consultation and coordination with the President of the Republic and the Vice-President. Article 1(5) should add “Environmental Sustainability” so that it reads: “South Sudan is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms, and environmental sustainability.” Further, regarding Article 6(2), I think there is need to be realistic by adding that Arabic Language should not be ignored in public communication in South Sudan since it is the most crosscutting practical language in all parts of South Sudan. Again, Article 8(1) is contradictory to Article 8(2) because either you say religion is separated from the state totally or you say it is connected to it. If you say religion should be separated from the state, then there is no need to request equal treatment by the very state to all religions. But if you chose to treat all religions in South Sudan Equally, then you should admit that religion is not separated from the state. In my opinion, Article 8(2) is sufficient since taking oath of offices end up in South Sudan using Religious Books. Thus, Article 8(1) should be deleted. 3. ON PART THREE: On Economic Objectives, there should be an addition of Article 37(4) to read: “Promotion of “Citizen’s Basic Income” sufficient to meet each person’s vital needs as a right to participate in the wealth of the community, the state and the nation so as to raise everyone’s level of dignity, freedom and opportunities in South Sudan.” Also there should be Sub-article 39(5) added to read: “Protect girls from under-eighteen year’s marriages as well as prevent by law forced marriages and other sexual abuses across.” In the Foreign Policy there should be an addition of term “partnership” to Article 43(a) to read: “promotion of international cooperation and partnership, specially within the United Nations family, African Union and other international and regional organizations, for the purposes of consolidating universal peace and security, respect for international law, treaty obligations and fostering a just world economic order;” Also “partnership” should be added to Article 43(f) to read: “enhancement of economic cooperation and partnership among countries of the region;”. Further, “human trafficking and slavery” should be added to Article 43(h) to read: “combating international and trans-national organized crime, piracy, terrorism, human trafficking and slavery.” 4. ON PART FOUR: Sub-article 53(1)(f) should be adjusted to read: “ensuring the protection of the natural environment and heritages sites in South Sudan.” Environmental sustainability has become a critical issue of globalization era, especially in exploitation of natural resources with avoidance of pollution by use of renewable energy. 5. ON PART FIVE: The Bicameralism is already state of union amongst the states of South Sudan and it is under the category of National Legislature as provided in Article 54(1). If you sub-divide this then you have to find a name for each. The name of the Council of States is in place but the National Legislative Assembly is not, because it still refers to the overall duty of the Bicameralism. I suggest that it is named “House of Deputies” so that the article reads: There shall be established a National Legislature composed of the following: 1) The House of Deputies; 1) The Council of States. Article 69(1) provide for two deputies for National Legislative Assembly? Why go for this. One Deputy Speaker is enough. Also there is no need to bring in the issue of elections or by-elections for the interim Legislative Assembly with its Bicameralism since its members shall only be appointed by allocation of percentages for political parties of the Republic of South Sudan similar with what was done in the mid-term era of the CPA before the elections in 2010: 40% for the SPLM and 60% for other South Sudan political parties to divide amongst themselves. The vacancies should be filled by the very appointment criteria that constituted the interim Bicameral Legislative Assembly in the first place. In Article 66, the term of the appointed interim National Legislature with its Bicameralism of the House of Deputies and the Council of States should be two years only, and not four years. The number of the members of House of Deputies should be three hundred (300) and the Council of States should be fifty (5 * 10 = 50) so that the total number of the MPs of South Sudan Legislative Assembly is 350. Article 71 should be adjusted to remove the belittling word of “Minority Leaders”. This looks like disrespect to the needed spirit of multi-partism and democratic opposition leadership in the South Sudan Legislative Assembly. The right and polite term to use is “Opposition Leader”. The Opposition Leader should rank third in the protocol of the country. There is no way un-elected Vice-President could be senior to the Opposition Leader in an honest multi-party State. Further Article 94(1) should be deleted to avoid giving power of adopting the Interim Constitution of the Republic of South Sudan (2011) to a sub-parliament that does not represent the new country. It shall be contradictory to have a National Legislature, part of its members claim to be elected and others appointed by Presidential Decree. The best way is to appoint all the members of House of Deputies as well as the Council of States by Presidential Decree so that they could fill the National Legislature seats equally, and with certain percentages allocated to South Sudan Political parties (60%), including the Sudan People’s Liberation Movement (SPLM) party (40%). There should be an Article providing: “The Prime Minister may request to address the House of Deputies or the Council of States. The concerned Bicameral level shall provide an opportunity for hearing such address as promptly as possible.” Article 83(1) should be adjusted to read: The President or the Council of Ministers may cause a bill to be presented by the Prime Minister before the House of Deputies or the Council of States subject to their respective competences. The Interim Provisions under Article 94 should be adjusted to read: (1) The South Sudan Political Parties’ Leadership Forum shall adopt and pass the Interim Constitution of the Republic of South Sudan (2011). (2) The South Sudan Political Parties’ Leadership Forum shall determine the sharing of specific quotas of South Sudan political parties’ representation in the National Legislative Assembly (both in the House of Deputies and Council of States) prior to Presidential Decree constituting its membership. 6. ON PART SIX: Article 95 should be adjusted to read: “There shall be established in the Republic of South Sudan a National Executive consisting of the President, the Vice-President, the Prime Minister and Ministers.” Article 95(1) should be adjusted to read: The President of the Republic of South Sudan is the head of State, the Commander-in-Chief of the South Sudan Armed Forces. He or she represents the will of the people, and shall exercise the powers vested in the office of the President by this Constitution. Also “by birth” should be removed from Article 98(a) so that it reads: “be a South Sudanese”. Also Article 98(e) should be adjusted to read: “not have been convicted of an offence involving honesty or moral turpitude at least five years before assuming the office.” Article 100 should be adjusted to read: “The tenure of the office of the President of the Republic of South Sudan shall be two years, commencing from July 9, 2011.” Article 101 should add to its sub-provisions of the function of the President to read: “appoint interim members of the National Legislature (both the House of Deputies and the Council of States).” Article 102 (2) should be adjusted to read: “If the office of the President of the Republic falls vacant prior to the conduct of the general elections, the Vice-President shall become the President upon taking the oath of office and then appoint a Vice-President hailing from a different political party.” Article 108 should be deleted because there is no need of Presidential Advisors as the duty could be done by Ministers in their subsequent areas. An article on Prime Minister should be added after the article providing for the Vice-President to read: “The Prime Minister shall: (1) coordinate the functioning of the Ministries in accordance with broad guidelines set by the President of the Republic and ensures the implementation of laws; (2) formulate the Government programme in consultation with other members of the Council of Ministers; (3) present the Government programme to the National Legislative Assembly within thirty days of assuming office; (4) issue decrees on promotions, transfers and internal secondments of senior state officials in accordance with the law ; (5) issue decrees to terminate service or cancel jobs in accordance with the law; (6) create a limited number of positions in a way that does not affect the approved organizational structures of the ministries and units falling under each ministry; (7) approve the travel of all the official delegations in their duties outside the country; (8) approve the hosting by the state organs of regional conferences in the country; (9)Acts as the President in the absence of both the President and the Vice President; and (10) any other duty or function delegated to him/her by the President or the Council of Ministers. An Article on Oath of the Prime Minister should be added to read:“ I……….…………., do hereby swear by the Almighty God/ solemnly affirm, that as the Prime Minister of the Government of the Republic of South Sudan, I shall be faithful and bear true allegiance to the Republic and shall diligently and honestly discharge my duties and responsibilities in a consultative manner to foster the development and welfare of the people of South Sudan; that I shall obey, preserve and defend the Constitution and abide by the law; and that I shall protect and promote the unity of the people of South Sudan and consolidate the democratic decentralized system of government and preserve the integrity and dignity of the people of South Sudan; so help me God.” Article 109(2) should be adjusted to read: “The National Council of Ministers shall compose of the President, the Vice President, the Prime Minister and Ministers.” Also Article 110 (3) should be adjusted read: “Membership of the National Council of Ministers shall not be combined with membership of National Legislature, States Executive or Legislature.” The Oath of Office for a Minister Should Read: “I……….…………., do hereby swear by the Almighty God/solemnly affirm/, that as a Federal Minister, I shall be faithful and bear true faith and allegiance to South Sudan and shall diligently and honestly discharge my duties and responsibilities and strive to foster the development and welfare of its people; that I shall obey, preserve and defend the Constitution and abide by the law; and that I shall protect and promote the unity of the people of South Sudan and consolidate the democratic decentralized system of government and preserve the integrity and dignity of the people of South Sudan; so help me God.” Article 118 regarding the Deputy Ministers should be deleted. The function could be played Undersecretaries of the Federal Ministries. Also Article 120 should be adjusted to delete anything about Deputy Ministers in its provisions. Further, Articles 121(2) & 122 should be revised to delete parts that provide for Presidential Advisors and Deputy Ministers and it should add Prime Minister after the Vice-President as well as County Commissioners. 7. ON PART NINE: Article 144(1)(b) about Anti-Corruption Commission should be adjusted to read: “investigate cases of corruption involving public property and public interest; and it shall submit such evidences to competent criminal courts for prosecution.” This is to avoid making this Commission look like a department of the Ministry of Justice rather than an independent body with power to take to courts corruption criminals. The South Sudan Ministry of Justice should not be given power to have control over the work of the Anti-Corruption Commission. Article 150 should be deleted because the work of the HIV/AIDS Commission could be done by a department in the Ministry of Health and Medicine. 8. ON PART TEN: Article 151 (1) should be deleted as what it says has already been provided in (2). After July 9, 2011, the name of the Sudan People’s Liberation Army should already have been changed into South Sudan Armed Forces to stand as the National Army. 9. ON PART ELEVEN: Article 162(6) should be deleted as there shall not be need of elections during the interim period. Also Article 163(1) should be adjusted to read: “The state legislatures shall be known as state Legislative Assemblies. They shall comprise of the appointed members by the Governors of the States after approval by the President of the Republic.” Article 163(4)(c) should be deleted because there shall not be need of elections during he interim period. Further, Article 163(5) should be adjusted to read: “The term of a state Legislative Assembly shall be two years commencing from July 9, 2011.” Again, Article 163(1) should be adjusted to read: “There shall be a state executive composed of a Governor, a Deputy Governor, State Secretaries and County Commissioners.” 10. ON PART TWELVE: Article173 should be deleted and functions assigned to National Petroleum and Gas Council be given to the Ministry in Charge of Petroleum and Gas. Also Article 175 regarding National Petroleum and Gas Corporation should be deleted because it shall be doing duplicate work that is supposed to be done by the Ministry in charge. Also there should be constitutional provision empowering the same Ministry in charge to develop Biofuels sector and blend it with oil products according to certain percentages deemed fit to international standards of renewable energy. Article 180(9)(a) regarding Central Bank of South Sudan should be adjusted to read: One “Deputy Governor, members and;”. 11. ON PART FOURTEEN: In Article 192 the term “Transitional” should be replaced with “Interim”. Also Article 195(3)(b) should be adjusted to read: “organize and conduct general elections by the end of 2013 with by-elections as well as local elections in accordance with this Constitution and the law;”. 12. ON PART SIXTEEN: Article 199(1)(b) should be adjusted to read: assent to and sign into law the amended Interim Constitution of Southern Sudan (2005), after its adoption by the South Sudan Political Parties’ Leadership Forum, which shall thereafter be known as the Interim Constitution of the Republic of South Sudan (2011). Also in Article 200(1) and (3) the term “transitional” should be replaced with “interim”. Schedule (F) should be added to read: The South Sudan Federal Ministries in addition to offices of the President, the Vice-President and the Prime Minister should be: SOVEREIGNTY MINISTRIESMinistry of Presidential Affairs. Ministry of Foreign Affairs and International Co-operation. Ministry of Justice Ministry of Defence. Ministry of Interior. Ministry of Information and Communications. ECONOMY MINISTRIES Ministry of Finance and National Economy. Ministry of Energy and Mining. Ministry of Agriculture and Animal Resources. Ministry of Water Resource and Irrigation. Ministry of Industry, Technology and Engineering. Ministry of Investment and Trade. SERVICE MINISTRIES Ministry of Higher Education and Scientific Research. Ministry of Health and Medicine. Ministry of General Education and Vocational Training Ministry of Labour and Public Service. Ministry of Land, Survey and Housing. Ministry of Transport, Roads and Bridges. MISCELLANEOUS MINISTRIESMinistry of Peace and Reconciliation. Ministry of Environment Wildlife and Forestry. Ministry of Humanitarian Affairs, Gender Equality, and Social Welfare. Ministry of Cooperatives and Community Development. Ministry of Culture, Heritage and Tourism. Ministry of Sports, Recreation and Youth. Dr. James Okuk is a South Sudanese with PhD in the Area of Political Philosophy from University of Nairobi. He can be reached at [email protected]. Posted in: Opinions -- You received this message because you are subscribed to the Google Groups "JFD info" group. To post to this group, send email to [email protected]. To unsubscribe from this group, send email to [email protected]. For more options, visit this group at http://groups.google.com/group/jfdinfo?hl=en.
