Not Another “Constitutional Review Commission” The “Permanent Constitution Process” should not be about “reviewing the “Transitional Constitution of ROSS, 2011” by yet another Constitutional Review Commission,..." 28 April 2011
By Dr. Hakim Dario N’Moi, Important Question for all South Sudanese: Given the preference, would you choose that normal people, like you and me vote in a referendum to enact our permanent constitution as the supreme law of South Sudan or you would rather entrust it to the SSLA to do it on your behalf? The proposed Permanent Constitution Process is flawed and relies on yet again the appointment by the President of another National Constitution Review Commission (after consultations with civil society, political parties etc). A constituent assembly to drive the permanent constitution process, rather than a presidentially appointed commission, was preferred by the recent Equatoria Conference 2011 in a resolution which was adopted by the conference. This is going to be a tall order to be accepted by the SPLM. However, all SPLM MPs in the Southern Sudan Legislative Assembly (SSLA) should give careful consideration to a people driven constitution making process and lend support to the resolution of the conference and introduce fundamental amendments to the provisions on the "Permanent Constitution Process" in PART SIXTEEN of the “Draft Transitional Constitution of ROSS, 2011”. Thus, in the draft Transitional Constitution of the RSS, 2011 that has just been made public, in particular the provisions for permanent constitution making: 1/ There is no mention of the Constituent Assembly anywhere in these provisions as required to initiate the process for writing the permanent constitution 2/ There is no provision for a referendum for bringing the Permanent constitution into force 3/ The provisions imply that the current SSLA which will become the National Legislature, will also be the one to pass the Permanent constitution to bring it into force, but not the people in a referendum like what happened with the referendum vote for secession leading to our freedom and independence. The process in the “Draft Transitional Constitution of ROSS, 2011” provides for the creation of another Constitutional Review Commission, which will draft the permanent constitution, take input from various political and civil society stakeholders, convene a constitutional conference to approve the Permanent Constitution, subsequently presented to the President who then in turn submits it to the Legislative Assembly to pass it and bring it into force. As there is no provision for the prior elections to elect a constituent assembly, this process now provides the legal basis of permanent constitution making for the Republic of South Sudan. The above Permanent Constitution Process that I described, as proposed by the ICSS Technical Review Committee does not follow international best practice in constitution making for birthing of a new permanent constitution of a sovereign state in which the people and not the Government of the day drafts and determines the nature and form of the State’s permanent constitution. This process needs to be reviewed and amended to align with constitution making best practices. Firstly, the name “Interim” should be retained as in “Draft Interim Constitution of ROSS, 2011” to signify that it is an interim constitution, not one that needs to be reviewed to make it become our permanent constitution, which is what is implied by the currently proposed process. Secondly, the amendments to the provisions on “Permanent Constitution Process” should propose that a Constituent Assembly be elected whose purpose and main task is to write and adopt a permanent constitution. The constituent assembly would appoint an expert or a commission to draft the text of the constitution and present it to the constituent assembly. And it may also be in order to convene a constitutional conference for public consultations after which any further amendments and comments would be considered by the constituent assembly. The President of Government of South Sudan should have no control over or direct involvement with driving the permanent constitution making process, which should remain exclusively the business of the Constituent Assembly. The constituent assembly would adopt the constitution text after thorough debate and recommend it for enactment by the people in a referendum vote on the permanent constitution. If the people vote to approve the permanent constitution, it will then come into force. The people are sovereign, not the Constituent Assembly nor the President nor any other Legislature given birth to by the constitution. The Government derives its authority from the people and from the constitution that is enacted and given force of law by the people. This way, the process of the constitution making becomes people driven and note Government driven. The whole point is that the people and not the Government should own the process of writing the permanent constitution as the law that would limit the powers of the government. The President and Government cannot therefore be entrusted with writing of the permanent constitution nor the appointment of the individuals to write the text of the constitution The referendum in which all the people vote to approve of the constitution as the supreme law of the land, should be the only legal basis for the enactment of the constitution and its coming into force by the sovereign authority of the people. There are legal constitutional making precedents and best practice of permanent constitution process being driven through a constituent assembly. India is one example in which a constituent assembly was responsible for constitution making, Iceland is another, and of course the USA and other countries. Our country should not therefore (by design) be denied a better and inclusive people-based process for permanent constitution making and the currently proposed process should be overhauled and amended to provide for a people driven approach through a constituent assembly. If we follow the constituent assembly model, then it is possible to appeal to those rebelling against the Government to give chance to an inclusive permanent constitution process to define what system of Government we want for our country in the supreme law and what limitation and powers should be exercised by the government through the constitution. Failing that and permitting the government to dominate the permanent constitution process through appointments and not considering a people driven approach through the election of a constituent assembly is a recipe for conflict and rebellion against the Government on grounds of monopoly of the permanent constitution process through political appointees like the controversial appointments that preceded and led to the appointment of the technical committee which produced this "Draft Transitional Constitution of ROSS, 2011". It is also clear that the appointment of yet another "National Constitutional Review Commission" is with the intent to review this "Draft Transitional Constitution of ROSS, 2011" and make it permanent, not by popular enactment through a referendum but through the current Southern Sudan Legislative Assembly which will be transformed, according to the "Draft Transitional Constitution" into a National Legislature and with the addition of a "Council of States". The “Permanent Constitution Process” should not be about “reviewing the “Transitional Constitution of ROSS, 2011” by yet another Constitutional Review Commission, rather it should be about drafting and writing a new Permanent Constitution of the Republic of South Sudan by a Constituent Assembly which should drive the permanent constitution making process and the enactment of the constitution by a referendum vote to bring it into force as the supreme law of the land. 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.
