Written by Dr. Alfred Lokuji, The New Sudan Vision (NSV),
newsudanvision.com
Saturday, 11 June 2011 22:35
(Juba, South Sudan) - In the brief time that I have, I would like to
share with you my thoughts and perceptions on ideas that have a
bearing on one of our immediate concerns – charting the constitutional
path by which South Sudan hopes to be governed now and in the future.
I shall briefly share with you my take on the philosophical
foundations of government, taking you briefly through - from its
embryonic form anchored on rule by divine right through to modern
times, where it is assumed that sovereignty resides in the citizens
that constitute the polity. The build-up of human ideas and
experiences about the governance of society has mushroomed to the
point where political discourse can easily be about autocrat or
democrat, citizen vs. the state, cabinet or presidential government,
centralized or decentralized (even devolved), unitary or federal, even
confederal!
I do not suffer from any illusions that I am giving you definitive
statements on what must be done in this nascent nation of ancient
nationalities. However, afford me the confidence that I shall
sufficiently challenge listeners and provoke them into exploring the
relevance of the ideas and experiences of humanity to their own
condition and situation.
Philosophical foundations of government
I suppose one may conclude that when Adam and Eve were rather rudely
evicted from that wonderful picnic spot, they were not sure how they
would live out there. I am a bit certain that the two love-birds did
not have much of a problem as to how they might co-exist from one
sunrise to the next.
The jump in the bible, from Adam and Eve being declared persona non
grata in Eden to “Polities” – governance of a collection of people is,
as is the style in narratives of that genre, rather truncated. What we
find, from the early communes established by the descendants of Adam &
Eve, to later full-blown “sovereign” nations/empires ruled by
autocrats, sanitized by notions of divine anointment.
The Greek city-states style of government must have come as a
surprise, and probably blasphemous for their contemporaries who could
see no other foundation for governance other than divine anointment.
In spite of those advancements in the thinking about government, you
all are aware of how they solved the problem of professors who they
convicted for polluting the minds of their youth.
Let me jump to the emergence of a thinking more relevant to us. Thomas
Hobbes (1588-1679), writing in the 17th century (The Leviathan) argued
thus: Human beings left alone to the pursuits of their individual
interests would live a brutish life as they selfishly compete in the
arena of nature. It is in quest for personal safety and security that
human beings might come to recognize that it pays off to surrender
some individual rights to a ruler in exchange for regulated though
competitive, nevertheless, peaceful living. Although Hobbes has been
seen by students of philosophy as an apologist for absolutism, it
should not be lost that his fundamental argument has to do with
surrendering individual rights so as to prevent living the vicious
life of brutes in the wild.
Let me jump to John Locke (1632-1704) – who planted some of the seeds
of libertarianism, arguing that value addition through one’s labour
constituted personal property that a just government is obliged to
protect. It is from reading Locke and others that Thomas Jefferson
(1743-1826) at only age 33 in 1776 could write: “We hold these truths
to be self-evident, that all men are created equal, and that they are
endowed by their creator with certain inalienable rights. That among
these are life, liberty, and the pursuit of happiness!” He went on to
argue that it is upon these concepts that governments are constituted
among men and women! A government that fails to fulfil these
obligations has to be overthrown! He even went so far as to suggest
that one generation has no right to bind future generations by a rigid
constitution – i.e. each generation should review the constitutional
terms that bind them as a people!
Fig. 1 Constitutional Bonding
Constitution
Executive
Legislature
Judiciary
Citizens
Allow me to move on to the practice of Centralized / Unitary Governments.
His Majesty’s government – Centralized
There is probably no better historical example of a Unitary government
than “Her Majesty’s Government” in the United Kingdom! England has a
colourful history of the divine right of kings. When the virus of
“representative government” infected England, its Parliament
challenged the throne over its own understanding of the answer to the
question: Who represents the people. King’s John’s monopoly of power
was decisively redefined by the Magna Carta in 1215. The execution of
King Charles by Oliver Cromwell in the 17th century was an ominous
event in the history of royalty. The vote for separation by the 13
colonies of the new world against George III was most certainly a
lesson never to be forgotten.
Constitution
Legislature
Central Government
Provinces
Municipalities
Localities
Judiciary
Fig. 2 Unitary Government
What is to be noted here is the pride taken in an “empire upon which
the sun never sets” from the British Isles, to Africa, India,
Australia & New Zeland, North America and the Caribbean!
“Self-government” generally began only a year or two before
independence – within the Commonwealth!
Rule of localities at the pleasure of “Her Majesty’s Government” – not
by constitutional right! That such a tiny island could place itself at
the apex of management of the public affairs of such an extensive part
of the world should never be lost sight of.
Federalism – the nation: “Ex pluribus Unum”
The explosion of a people-based revolution in America ushered a new
era in government among mankind in such a way that its effects are yet
to come to an end. The French followed very quickly by their own
understanding of “liberte, egalite, et fraternite”! Anyone with a
sense of humour should certainly appreciate their challenge of royal
power by their spontaneous destruction of the Bastille – symbol of
injustice, rather than a rehabilitation house for paying reparations
to society.
Because the American thirteen colonies had been separate
administrative divisions of the British crown, the need to bring them
together - yet recognizing themselves as separate - gave birth to
their dictum: E pluribus Unum – out of many, One! They created an
amazingly successful federal system that has consistently stood the
test of time, down to the election of the first black man as
President. Their vigorous defence of their rights as citizens and as
states, lo, even as counties, has been long recognized as
simultaneous, i.e. non-contradictory with their rights as citizens of
the American nation.
The Founding Fathers of the United States were scholars. I am sure
some of them read Thomas Hobbes. Thomas Jefferson, among many,
certainly read Locke and Montesquieu! Out of this collection of ideas,
they drew the conclusion that it is possible to be one people, defined
and united under one constitution, yet sufficiently appreciable in its
variation to allow each of the subsets of the federation to govern
themselves through their constitution, without contradiction to the
essentials of a nation.
The constitutions, both at the level of federation and of the states,
are the instruments which constitutionally create a balance between
the nation as government and its people, and the states as government
and people. All derive their being and legal nurture from the
constitution, not at the pleasure of any layer.
I am reliably informed that our friends, the Swiss, have an even more
striking constitutional fabric of mini-nations in its cantons – to the
extent of having a seven-person national Presidency, exercised by
annual rotation. For those who might equate the Presidency with
political monotheism, this might be not only mind-boggling but also
constitutes the greatest political blasphemy against the Chief
Executive! Yet, it is a reality that is testified to by the
un-erasable grins of satisfaction on Swiss faces!
Figure 3. Federal Government
Federal
State
Localities
Legislature
Legislature
Legislature
Executive
Executive
Executive
Judiciary
Judiciary
Judiciary
National
State
locality
Cabinet & Presidential Systems
Deciding whether a nation is to be governed through a Unitary or a
Federal system is one set of decisions. The other critical set of
decisions has to do with whether the mode for constituting government
will be a Presidential or a Cabinet (also called Parliamentary) model.
In brief, this is how each system works.
a) Presidential:
Executive Powers of government are held by a President, elected
separately from the Legislature – both for fixed terms of office.
Candidates for the Presidency are known. A presidential candidate may
be affiliated with a party and this is only of importance in as far as
he is identified with the set of policies advocated by the party.
True presidential systems are few and may vary in the way by which
their relations with other institutions of governments (legislature
and judiciary) are governed. Notable among Presidential systems of
government is that of the United States, particularly for the rather
elaborate system of checks and balances between the institutions of
governance and the States. Many countries that attempted to copy the
American system failed to balance powers between their institutions of
government – resulting in the evolution of autocratic – or if you
prefer, imperial - presidencies.
Fig. 4 Presidential System
Constitution
President
governs
Legislature
legislates
Judiciary
Citizens
b) The cabinet or parliamentary system
The Cabinet or Parliamentary system is an equally successful model for
the establishment of a government under a constitution. Instead of
electing the Chief Executive and the Legislature in separate ballots
as in the Presidential System, voters go to the polls to choose a
party that best expresses their policy preferences, desires and tastes
in public affairs. The party that wins the majority of seats in
Parliament – i. e. has 50% plus one of the total seats, preferably
more, is widely recognized as the party that has the right to form the
government (Prime Minister, Ministers and other policy level
positions)!
The downside of the parliamentary system is that it requires that the
party that has formed a government is considered to have lost the
confidence of voters should it fail to acquire a majority vote on any
policy matter such as the annual budget. The only guarantee that a
Cabinet government will govern for the full term is that it retains a
plurality of parliamentary votes for the entire term of parliament.
Successful Cabinet systems of government are many: the UK being the
classic example. But there are many others, notably Germany, Italy,
Japan, India, Israel, Australia, and Canada. Many sub-Saharan
countries tried this system at independence. However the inclination
towards an imperial presidency – a Chief Executive whose powers
supersedes those of the Legislature, or even the Judiciary!
Fig.5 Cabinet/Parliamentary System
Constitution
Prime Minister
Forms government on strength of majority party in the legislature
Judiciary
Legislature
By Political Parties
Citizens
May I now point out one very important proviso: both the Presidential
System as well as the Cabinet system are governed through a
Constitution. Furthermore, both systems have recourse to the courts
for settlement of any constitutional disputes!
I have extremely briefly introduced a topic that is generally covered
at university under different courses lasting at least 10 weeks of
instruction at a pace of 3 to 5 hours of face-to-face instruction.
This being a very smart audience, it was decided that 45 minutes would
do.
So, let me turn to the application of these concepts in the Sudan
situation, pre- and post-CPA.
The Sudan till the CPA
The Anglo-Egyptian Condominium over Sudan cannot be said to resemble
any of the prevalent types of government I have just gone over. The
philosophy underpinning that rule was the very philosophy rejected by
the Americans in 1776, the French about a decade later—and by hordes
of other colonized peoples after WWII. When it got “Self Government”
in 1953, that should have driven the point home that Sudan had been
ruled within a Unitary system from London.
What never ceases to amaze me is that most colonial peoples, including
the Sudanese very soon forgot what was wrong with colonialism. In the
language of Dependency theorists, the satellite states of London or
Paris very soon became centres of new political constellations that
created their own satellites and demanded they not fall off their
prescribed orbit.
Upon independence Sudan had hoped to do the ballet of the Cabinet
System of Government, with the Queen replaced by a Ceremonial
President. The Parliamentary system could not work under parties whose
voters committed even before polls were announced. The Umma and the
Khatmiya were family affairs, rather than political parties. Neither
the Democratic Unionists nor the Communists were that much different.
If the political unlevel ground would not permit the Sudan to
experiment successfully with the Cabinet System, the political terrain
that gave the political houses their zonal exclusionary rights more
firmly mitigated against any one ascending to a US-type presidency.
The discomfort with either systems of government is what has given
Sudan a quilt-like history of civil-military regimes since
independence.
The history of civil-military power relays since Independence
sufficiently explains why Sudan has languished in the peripheries of
proper constitutional government: distribution of powers by
institutions, constitutional limitations of power, and arbitration
through constitutional courts. [Al-Azhari 1956-58; Gen. Aboud 1958-64;
Cabinet systems 1964-69; Gen. Nimeiry 1969-84; Cabinet System 1984-89;
Gen. Bashir 1989 to Present]
In spite of the NCP government toying with the idea of Federalism long
before the CPA, the 26 states have actually been its administrative
provinces – nowhere approaching true federalism. In fact, the tendency
in Khartoum, long before the NCP came to power, is that the Southern
Sudanese call for a federal system from independence was just a ploy
for separation. The NCP’s federal claims, were they valid, would have
taken care of the demands by Darfuris, Bejas, Angassana, and Nuba –
thus strengthening the Sudan in its diversity!
In one word, the Sudan has never been federal before the CPA – if
anything, it has had a fatal attraction to rigid centralization,
without any devolution of actual powers – but very unique in the
devolution and distribution of blames for the failures in constructing
a Sudanese nation.
The southern Sudan from the CPA
Ironically, it is after a long and bitter war that only Southern Sudan
has come the closest to enjoying a federal status vis-à-vis Khartoum.
It is doubtful that Khartoum has the hindsight to recognize that the
CPA formula could settle all the problems of the Sudan without
necessarily splintering the Sudan along the fault-lines that are so
easily detectable.
The federal-type association between Khartoum and Juba, brought about
by the CPA is not as apparent within Southern Sudan—that is, between
Juba and the ten state capitals. Right from the establishment of
government in 2005, there seems to have prevailed an unfathomable
mentality to the effect that we need the federal arrangement in the
Interim Period between Khartoum and Juba, but not between GOSS and the
Ten States of Southern Sudan.
First and foremost, within GOSS itself, the line of delineation
between the three institutions of government have not been distinctly
clear. More worryingly, the Judiciary seems not to have exercised any
powers of judicial review – even when the opportunities existed. It is
probably excusable on the grounds that constitutional courts also
needs a plaintiff—someone or institution that raises a legal
complaint.
The primary suspect for the failure of a full-blown federal system is
the legacy of centralization. My hunch is that the would-be
implementers of federalism in Southern Sudan are not sufficiently
weaned from centralization tendencies. Due to this, it is extremely
tempting to consider that Administrative Decentralization
(administrative devolution of duties) is Constitutional
Decentralization (Federalism – devolution of powers by constitutional
means between the federal constituent members of the federation).
Challenges
Having observed our government in operation over the last six years, I
believe the following are among the major challenges we must confront
along the way to establish a genuine federal system.
GOSS
The Government of Southern Sudan itself:
As presently constituted, the GOSS has highly centralized governance
programs, in spite of the fact that the CPA and the Interim
Constitutions derived from it provide for clearly federal
arrangements.
Briefly and to the point:
There is no reason why GOSS should not let go of all responsibilities
in education up to secondary level to the States
There is no reason why GOSS should be playing the star role in
Agriculture in general, and extension services in particular
GOSS has no compelling reason to continue to run basic / public health
GOSS does the concept of federalism disfavour by running public
security from the Ministry of Interior instead of leaving this
function primarily to the states. Does traffic police need to be a
federal function?
With regard to governance institutions, there needs to be developed
clearer jurisdictions of primary responsibility:
I. The Legislature – is in charge of
legislation, policy adoption, and budgeting (both revenue and
expenditure. It should not be kowtow to the Executive Branch – in
fact, it should hold the executive department of government
accountable as well
II. The Executive – needs to cultivate
the understanding that it is NOT a supreme agency and only holds
powers defined and limited by the constitution. For example, it should
avoid meddling in state affairs (such as the appointments of state
Ministers and County Commissioners) as much as possible
III. The Judiciary – needs to become more
assertive of its powers, especially Judicial Review. Judicial
functions are not just about criminal and civil procedures, but also
about the constitutionality of actions by citizens or any of the
institutions of governance
The states
I. The Legislature – State
legislatures are much more than salaried employment, they play the
same roles for the state as the federal SSLA plays at the GOSS (soon
ROSS) level.
II. The Executive – Governors need to
cultivate and promote the understanding that they do not hold the same
position as Pontius Pilate – who can change his convictions when
threatened with the prospects of a negative report to Caesar!
The State Executive branch also has powers emanating from the state
constitution and limited thereby!
III. The Judiciary – By no stretch of the
imagination is the state judiciary an administrative extension of the
federal judiciary at the GOSS level. Yes, the GOSS level judiciary may
also exist in states solely for adjudication of cases related to GOSS
laws. The mere fact that there does exist a legislature at the level
of states implies the existence of a judiciary to adjudicate all legal
matters at that level.
The counties
Governance Functions at the level of counties should be replications
of what has been stated about states. To be sure, there is some lack
of clarity on their constitutional place. This should be a matter to
be decided by the states – although some uniformity might be
desirable.
Conclusion
I humbly submit that if South Sudan is to be a federal state, its
constitution should not only say so, and it follows that its servants
should treat the constitution as a sacred document that delegates to
and limits the powers of any institutions. Fundamentally, all powers
are derived directly from the constitution and not from any one
office.
However, should there be a desire to revert to the Unitary system, the
constitution should not mimic federalism, and constitutional
governance remains the underpinning principle.
Dr. Alfred Sebit Lokuji is Associate Professor & Acting Dean, College
of Community Studies & Rural Development, University of Juba. The
Speech was delivered at Juba Beijing Hotel, under sponsorship of GIZ,
German Ngo. He can be reached at [email protected] e-mail
address is being protected from spambots. You need JavaScript enabled
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