The RoSS Draft Constitution Debate BY: Joan Adams, South Sudan
JUNE 20/2011, SSN; After the signing of the Internationally mediated Comprehensive Peace Agreement (CPA, 2005) and the recently concluded plebiscite for independence of South Sudan, the controversial Draft Transitional Constitution for the Republic of South Sudan (RoSS) is the third milestone in the making of the new Republic. The manner in which the SPLM dominated government of the day will undertake to resolve the controversies surrounding the Constitution will be crucial in determining the future of the newest State in the world. Many have already commented about the draft transitional Constitution ranging from the- mechanism of selecting members of the Review Committee; to the use of crude majoritarian tactics in the drafting process. There have been mixed reactions to the outcome of the draft Constitution. Some have taken the painstaking endeavor to propose amendments to the Constitution, Article by Article; others have questioned the legitimacy of the current Government of South Sudan (GoSS) to draft an entirely new Constitution as opposed to just adding aspects of sovereignty provisions to the Interim Constitution of South Sudan (ICSS 2005). This government is technically mandated to rule South Sudan till 9th July 2011, when a new Constitution and a new government are supposed to be in place. The South Sudan Legislative Assembly (SSLA) might have by now passed the draft Constitution which will be signed into law by GoSS President Salva Kiir Mayardit in time for the inauguration of the new Republic on 9th July 2011. Since the SPLM is the majority party in the Assembly, with a few arms twisting, we can conclude that the August House will pass the draft document without substantial changes. Whatever the outcome, after the euphoria of celebrations on July 9th but before the next general elections, a referendum should be conducted to enable the citizens of South Sudan to choose whether they want a federal Constitution or a centralized one. It is my desire to contribute to this ongoing debate. Constitution for a Federal Republic The most striking features of the draft Transitional Constitution are the: absolute centralization of powers into the hands of the President; lack of explicit commitment to federalism and power-sharing; and what amounts to a total disempowerment of State governments, (the draft Constitution can be viewed at www.gurtong.org ). This is a huge disappointment to Southern Sudanese given our history. Federalism is not only the current system by which we are being governed; it was also the system that our fore fathers demanded in 1947 prior to the independence of Sudan in 1956. The Government needs to come clean and tell the people why we are getting a centralized Constitution and not a federal one, instead of diverting attention to issues decentralization or devolution. The question is, since there is a federal system in place, where are we devolving or decentralizing powers from? If the Government had centralized powers and wealth in Juba in contravention of the Interim Constitution (2005) they need to explain to the public why they have violated the Constitution in the first place. The issue of decentralization or devolution as models of good governance is important but it does not override the importance of Federalism. Decentralization in the Sudan is not a new thing. In fact it was introduced by Numeiri in towards late 70’s or early 80’s but it was denounced by some of the new converts, as “kokora”. Devolution is equally important but it needs to be put into context. I can understand the former being applied in Northern Sudan which had decades of centralized authority, or the later in a monarchy like the United Kingdom where power is now being devolved from Westminster to Wales, Scotland and Northern Ireland, but not in Southern Sudan where we are creating a new Constitution for a new Republic. Decentralization, devolution and federalism are not synonymous and should not be used interchangeably. What the Government is advocating is a centralized system of government which will nominally have the three levels of government, but powers will be effectively centralized in Juba or wherever the seat of government will be. Since 1947, the Southern people had demanded for federalism but were out maneuvered and betrayed by unscrupulous northern politicians. Let us not do it to our own people. Our people - whether they are peasants or street traders, men or women, older people or young people, economists or doctors, those inside the Sudan or those in the diasporas - all want a federal system of government. This is the system that they believe will serve their current political interests best. Federalism is the system that is being enjoyed by some of the greatest nations of the world such as the United States of America, the Federal Democratic Republic of Germany, and nearer home, the Federal Republic of Nigeria. These people are no less patriotic or nationalistic than we are. So, I can proudly be a South Sudanese, and an Equatorian without contradiction, and being one does not negate being the other, and in that order. The problem arises when people in authority begin to reverse the order thus giving preference to ethnicity over regionalism or nationhood. When the 13 States of North America, liberated themselves from Britain, they did not call for decentralization or devolution of powers from London but simply created a new Federal Constitution for their new Union of States: the United States of America. Therefore using the principle of “social contract”, we are saying that the peoples of the 10 States of South Sudan are electing out of their own free will to form a Federal Republic of South Sudan. This republic is a federation of the former 3 Southern provinces of the Sudan which have distinct geographical, cultural and ethnic identities. The Union is not a result of a military conquest but a political agreement, in mutual recognition that it will make us a better and stronger nation. It can be joined later by other administrative areas that seek to express their political aspirations within it, likewise there could be provisions for States or groups of States to opt out through a referendum if they feel that the union is not serving their political interests. In this way nothing can be taken for granted. It will be the constitutional responsibility of any government of the day to ensure that Unity of the Federation is kept attractive to all political stake-holders. In fact we could raise the stake a little higher and call it the United States of South Sudan. Just as there is move towards further integration in the European Union, in 50 or 100 years time, African peoples and their governments may decide to form a United States of Africa to be sustainable in this increasingly globalised world. If that happens, the United States of South Sudan, with its pragmatic and attractive power-sharing model and geographical advantage could easily become the seat of government for the African continent. Power-Sharing The second important point which people are glossing over is the issue of “power-sharing”. Characteristic of the disposition of intolerance, the word “power-sharing” which was the cornerstone of the CPA is fast becoming a “sensitive” or “dirty” word. In the CPA, the SPLM on behalf of the people of South Sudan and the NCP (National Congress Party) on behalf of Sudan Government agreed to share political power in the Government of National Unity (GoNU), roughly 30 % and & 70% respectively. We know that most of these positions were allocated to SPLM members. In spite of the constant bickering between the SPLM and NCP, over the issue of the 50% of wealth sharing of the oil revenue, the Government of South Sudan did receive billions of dollars in oil revenue over the last 6 years. The issue of contention here is, whereas the SPLM was forceful in implementation of the power and wealth sharing protocols with Khartoum, within the South, it totally controlled both power and wealth. Over the last 6 years, most cabinet positions in key Sovereignty ministries such as Finance, Interior, Foreign Affairs, Defense, and Public Service were totally monopolized by the SPLM. Even within the SPLM Equatorians are not only consistently underrepresented but marginalized into Service Ministries such as Social Welfare, Health and Wild Life. The article entitled “The Root Causes of Conflict in South Sudan” posted on 14th May 2011 on the www.southsudan.net website is a testimony to the sad face of political tribalism in GoSS. This is contradictory to the gospel of power-sharing and democratic transformation the SPLM has been preaching. This is not an attack on a tribe per se but the reality of the manifestation of political tribalism based on the systemic use of state powers to ascend to and maintain unfair advantage over other tribes. This is what we need to combat in Southern Sudan. To combat political tribalism, it is imperative that 1/3rd or 33% of power is roughly shared between the former provinces of Equatoria, Upper Nile and Bahar el Ghazal respectively and this must be guaranteed in our new Transitional Constitution. The same principle of equitable representation can be rolled down to the States. Therefore in terms of equitable representation in the national government if there are 30 ministries, then at least 10 ministerial positions should go to Equatoria, 10 to Bahar el Ghazal and 10 to Upper Nile and every region should have a combination of both sovereignty and service ministries. The same formula should be applicable to the legislature, the judiciary, the armed forces and the security organs. In my view, GoSS has already created too many ministries. In the new Republic, cabinet posts should be restructured and the number of ministries reduced from 32 to about 24. Furthermore, there are no compelling reasons to create Deputy- ministerial positions. If necessary, more ministries could be created at State levels which would help take development to the States. Ultimately, the financial burden of supporting these constitutional posts will be immense. This is why people are rightly concerned about how “eating” money by these “big people” will exhaust funds which ought to be used for development and services. In terms of absorbing returnees from Khartoum in the new Administration, the above power-sharing model should be used to ensure equitable representation; otherwise the government can be rightly accused of looking after its own. In an attempt to accommodate people into government service, GoSS should avoid, encouraging dependency on the State, instead of cultivating the ethos of hard work and labor. Internationally retirement age for the Civil Service is about 65 years of age. Given that most Southerners traditionally lie about their ages, we could well have people who are over 70 years age in our civil services. This cannot be right. But there must age limits for constitutional post holders as well. Creating more constitutional posts at the Centre only serves to congest the National Capital and reduce money for development. Going by the logic of “belly politics” equitable distribution of power becomes imperative because those in high public offices also tend to have access to finance and wealth-generating means such as access to finance, loans, grants, or awarding of lucrative contracts. If political power is concentrated in the hands of people from one region, the chances are that wealth will also be concentrated in that region, leaving others behind and disgruntled. It is therefore important to acknowledge that power-sharing is linked to wealth-sharing. Connected to the culture of dependency, is the culture of consumerism which together, can become toxic and stifle any possibility of economic development. The oil is a finite resource and we need to urgently diversify our sources of revenue to become a sustainable nation. It is scandalous that South Sudanese are largely a consumer society known for high tastes, when we do not produce even basic commodities. Juba is full of very expensive land cruisers and Hummers and GoSS offices are over-furnished. Some senior officials keep rooms permanently reserved in expensive hotels at the expense of the government. Even foreigners are complaining of what can be termed as the endemic “commuter-culture” in GoSS where officials regularly travel to neighboring countries presumably to visit their families. This sort of attitude is unacceptable and the earlier we start to develop our own infrastructures at home the earlier we will stop “capital flight” into neighboring countries. These excesses and extravagance are not sustainable. When are we going to start producing our own food instead of depending on neighboring Uganda or Northern Sudan for supply of our daily bread? The recent incident of border closure by the North over the Abyei crisis is a warning, because time it is the North, but next time it could be Uganda or Kenya. The Gender Factor The only power sharing quota which has been left intact as per CPA is the 25% of power allocation for women. This is an achievement which must be guarded, until the traditional powers and attitudes that keep girls out of schools and women out of public offices are sufficiently eroded. It is true in the plebiscite women overwhelming voted for independence. However, even during the war, women were the unsung heroes who maintained their families under very challenging circumstances in the government controlled areas; in the displaced camps of northern Sudan; in the refugee camps of East Africa; and in the Diasporas. They did indecent jobs as domestic servants or engaged in brewing illegal beers, scrubbed toilets and washed old people, just to put food on the table for their families and to educate their children. They did this when most of the men had long given up! When communal conflicts erupted, it was the resourcefulness and wisdom of women that moderated things. So it is right that women are honored and rewarded for their hard-work and resilience. But we need to acknowledge that since 2005, women in South Sudan are no longer a homogeneous group. Over the last 6 years, the 25% of women’s quota was almost exclusively reserved for SPLM women. In the new Republic, we need to ensure that the 25% of our quota is fairly distributed across the political and regional spectrum to achieve inclusivity and equity. Secondly, given the history of the SPLM movement, we know that most of the women, who are now in positions of authority in GoSS, are likely to originate from areas that are already over-represented in Government. Allocating the 25% of women’s quota in the executive, legislature or the judiciary to women who are already part of the political establishment will serve to concentrate wealth and power in the hands of a few elite, which will perpetuate political, social and economic inequalities. If we are really interested in fair representation then the 25% of women’s quota should be integrated into the 1/3 of power-sharing per region. Once appointed or elected, these more educated sisters would do better to use their influence to pursue gender-sensitive policies such as improved access to adult education; improved access to small business loans and improved educational opportunities for the girl-child to get the truly marginalized and disadvantaged women and girls out of poverty. These women and girls came out in their ten’s and thousand’s some carrying babies on their backs on the scotch-hot tropical heat to vote for the present leaders and to vote for the independence of South Sudan. They did this so that that this time around, they too can reap the benefits of independence and improve their situations and qualities of lives. These women and girls should be protected from domestic violence and those working in public places as clerks, secretaries, nurses, and messengers or in the hotel industry should also be protected from abuse and exploitation and sexual harassment should be criminalized. Separation of Powers In a democracy, the separation of powers between the three levels of government. Equally important is the separation of powers between the legislature, the executive and the judiciary. This is because as we know, power corrupts and absolute power corrupts absolutely. The powers and functions of the national government should be primarily limited to sovereignty matters, national projects and policy development, but delivery of services in the various sectors such as education, health, housing, should be left for State governments. The tenure of the office of the President must be limited to two terms of either four or five years each. There should also be regular, fair and free national and presidential elections. In principle, any South Sudanese should be able to ascend to the office of the President: the highest office in the land. Where this is not technically possible, then other models of political arrangement like rotational presidency in Nigeria, where the Presidency rotates between the north and south of the country should to be explored. This is to protect against the use of crude dictatorship of the majority to seize and maintain power, to the exclusion of others. In fact the idea of rotational presidency in South Sudan was floated in Nairobi during the South-South Dialogue, (2005), but it was rebuked and rejected by the SPLM leadership. This could give all political stakeholders in the country ownership of the national government, a crucial ingredient for peace, stability and development. Giving the President Constitutional powers to remove elected State governors is a bad idea. The whole democratic ethos of separation of powers is to restraint arbitrary use of powers. Where shall we draw the boundary? How shall we determine whether there are objective reasons warranting removal of a governor or whether these motives are purely subjective? Before we realize it, these exceptional reasons could become the norm rather than the exceptions. How can we guarantee that opponents of a governor will not deliberately stir up problems to get him/her removed instead of patiently waiting for the next election to get their turn? Once a people’s governor is elected he or she should remain in power until the next general election or otherwise be impeached by the State Assembly. During last year’s election (April 2010), the people have demonstrated that if they do not want a governor or anybody else for that matter they can remove him or her. Eroding powers of State governors will make state governments ineffective, and will demoralize constituents with grave consequences. It is also preposterous to deprive state governments of the judiciary. How can a government be a government without the judiciary? Even our traditional chiefdoms have judicial powers to settle disputes to ensure that justice is done. These governors will be toothless and these positions will be not worth contesting for. If State governments are so weak and State ministerial positions are far weaker than the National ones, who will want to work in the States? Everyone will be struggling to get into the national government and the dream of taking cities to the people will never be realized. The Unity Project The proponents of the draft Constitution are claiming that at this level of our development, or lack of it, it is important to have a strong central government to drive the nation’s unity agenda. Throughout the wars of liberation South Sudanese have struggled as distinct communities albeit, with shared history and unity of purpose. When Southerners need to come together and act as a unit they can and have demonstrated this loud and clear during the independence referendum in January 2011. Southerners of all walks of life: men and women; older people and young people; those within the South and the IDPs; those who fled into neighboring countries and those who found refuge further a field in Europe, America and Australia- all spoke with one voice and voted overwhelmingly for independence. What this means is that when situations demand, Southerners can stand together to collectively face the common enemy or any aggressor/s to protect their common interests. It is a serious judgment of error to entertain desires to give Southern Sudan a single national cultural identity. The CPA was negotiated with the understanding that South Sudan is multi-ethnic, multi-cultural, multi-religious, and multi-racial society. These differences are enshrined in the Interim Constitution of South Sudan (ICSS, 2005), and should not be violated. South Sudanese are proud of their distinct ethnicities and cultural characteristics and are attached to their ancestral lands and this should be respected by the State. Every Southern tribe is a nation by itself, occupying a distinct territory where they are sovereign. Therefore what South Sudan needs to do is to build a “super-nation”- the nation of South Sudan; based on consensus and will of the people of the 10 States, constituting it, as mentioned earlier. It is embracing these diversities in our national Constitution that will make us a stronger nation-state. What we therefore need for the making of modern South Sudan is not forced unity, social engineering, or territorial ambitions but unity of purpose. Totalitarian Dictatorship The draft Constitution has totally subordinated societal characteristics and others political forces to the will of the ruling party which they interpret as the will of the state. Because the current draft Constitution is undemocratic, anti-democracy, and promotes dictatorship, it will encourage ruling by decrees. The state is an abstract concept; which is constituted by and derives its authority from the people. It is the people who are sovereign and have the right to determine the form of government suitable and appropriate to their conditions. A quotation from Italy’s former dictator Benito Mussolini serves to underscore the dangers that the state has super identity over and above that of the individuals and groups that form it. “The foundation of fascism is the conception of the state, its character, its duty and its aim. Fascism conceives of the state as an absolute in comparison to all the individuals or groups that make it. The groups or individuals are only relative in their relation to the State. The fascist state is itself conscious and has a will and personality, thus it may be called the ethnic-state. The state is a guarantor of security both external and internal but it is also the custodian and transmitter of the spirit of the people as expressed in language, customs and faith. And the state is not only a living reality of the present but it is also linked to the past and the future and thus transcending the brief limits of individual life, it represents the imminent spirit of the nation. Fascism desires the state to be a strong and organic body at the same time repositing upon broad and popular support. The fascists state drew upon itself economic activities of the nation, educational institutions are created to influence every aspect of the national life framed in the respective organisations, whether political, economic and spiritual forces of the nation. The fascist state organises the nation, but leaves a sufficient margin of liberty to the individual the latter is deprived of all useless and possibly harmful freedom, but retains what is essential: the deciding power in this question cannot be the individual but the State alone. The State will subordinate without exception.” Benito Mussolini... La Dottrina del Fascismo 1932). This is not just a chilling reminder of what happened in early 20th century Europe, but a possibility of what this SPLM government empowered by the current proposed transitional Constitution can do after 9th July 2011. A totalitarian dictatorship which presumes that both the state the leader are supreme over the citizen’s will be installed with serious consequences on human rights and fundamental freedoms: political opponents will be crushed or eliminated; a one -party state can easily be declared; freedom of press/media and associations will be restricted, and there will be no equality of citizenship as some citizen will be more equal than others. Security agents will be at will to categorize individuals as anti-government or enemies of the State and certain terminologies such as “federalism”, “equatoriansim” or “power-sharing” will be labeled sensitive. In short there will be state terrorism and widespread intimidation. There is certainly a lot in common between military dictatorship and totalitarian regimes and both tend to create leaders as personality cults. The problem for us is that the SPLM/A has not yet rid itself from the culture of militarism. This is food for thought. The CPA Era Jan 2005- July 2011 The CPA had created a good model of government. All the institutions that were to be established for the smooth running of GoSS, were spelled out. What's more, GoSS had money from the oil revenues: lots of it, not just to establish institutions but to effectively run and provide services. The International Community did not leave, but continued to midwife and support the South through financial assistance and capacity building. No African country at independence received as much support and goodwill, as the GoSS, but it squandered the opportunity and blew it! Equally, few countries at independence had as many university graduates as South Sudan, but when those in authority say, “we have no capacity”, they mean “we have no people from our party or village to employ in this or that position”. During this period, more than 80% of the annual national budget has been spent at GoSS level leaving only 20% to be spent in the 10 States! This is a totally disproportionate expenditure by any standard. In the new Republic, not more than 40% of our national budget should be spent at the center and the greater proportion of 60% should be split equitably among the 10 States. This situation is even more horrifying when we know that no government expenditure has been audited since 2005. How would such a disproportionate expenditure and lack of accountability promote poverty reduction or the attainment of the Millennium Development goals by 2015? As a result, the majority of Southern people have not enjoyed the peace dividend they were promised in forms of services, opportunities or security. Six years down the line, many others are still internally displaced, stranded in Kosti or elsewhere desperately seeking to return home. And to some, homes in Unity State, Upper Nile, Warrap, Jonglei and Abyei are now on fire. What many have experienced over the last 6 years is nothing but poverty, violence and harassment in the hands of undisciplined security agents. What one would like to know is where has the annual 40% of budget allocation to the security sector for 6 years gone, when citizens have not been protected from the LRA and other undisciplined Southern forces? The Federal Republic of South Sudan But we can do better. Yes we can! We have to do better because we owe it ourselves and to the next generation. We also owe it to the world at large as we take our place in the community of nations to make our contribution to the common good of humanity. Southern Sudan is the newest nation on the globe, and those of us who have lived to see our freedom should pause and give thoughts to the 2.5 millions who have perished to purchase our freedom. The Republic of South Sudan is being created in the 21st century and we should be the envy of the world. We should be the envy of the world because we do not need to commit the mistakes others have committed; neither do we have to reinvent the wheel. We have access to the accumulated repertoire of world scientific, cultural and technological knowledge and technical know-how to jump start our development. We have plenty of resources, abundant arable land, livestock, oil, minerals, man power and what's more, the longest river in the world passes through our territory! We can institute modern representative democratic governance and pro-poor development to take towns to the people. We can have a government that will be responsive to the needs of its people and treat its people fairly, equally and equitably. We can have a government of national unity based on power-sharing and other democratic principles such as regular, free and fair elections. We can uphold equality of citizenship, implement the rule of law, and observe human rights and fundamental freedoms, and ensure that all are equal, and none is above the law. We should not be selective about implementation of democratic principles. The executive should not usurp powers of the legislative and the judiciary must be independent to be able to deliver justice to the citizens. There should be no duplication of functions between the National government and State governments. Law enforcement agencies such as the police and prison should be territorialized for effective maintenance of law and order. National security organs must be representative and reflective of our national diversities. Service delivery should be the prerogative of State governments and States should have the powers to have bilateral relations with foreign development partners to attract investors to their states. In addition, States should have powers to raise their own revenues for development projects in their states and this could be used to identify and expose those parasitic States who are living off the national coffers. This is however, not giving States a blank cheque. State governments will be subject to the same principles of accountability as the national government and State governors in particular could be impeached by State Assemblies as deemed appropriate. But all is not lost, the SPLM dominated government of South Sudan which will in a few weeks transform itself into a sovereign government of the Republic of South Sudan, under the leadership of Gen. Salva Kiir Mayardit, can still save the people of South Sudan by adopting a Federal Constitution to make unity of the country attractive. The government should act in good faith and respect the principle of unity in diversity as the foundation stone upon which our country can be built. 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