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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