SS Permanent Constitution: A Silent Repetition of Constitutional Crisis
"A constitution is the mirror of the people and if you do not see yourself in the mirror, it’s obvious that such a mirror may find it way into dustbin." 18 May 2013 Beny Gideon Mabor (Gurtong Edited)-In summary, South Sudan has never produced a stable and people-centered constitution since autonomous government of Southern Sudan from 2005 to date. The two constitutions, namely Interim Constitution of Southern Sudan 2005 and the current Transitional Constitution of the Republic of South Sudan 2011, were both dictated by strictest terms and conditions of promulgation by the two political transitions such as the Comprehensive Peace Agreement CPA 2005 for the former and the proclamation of an independent South Sudan in July 2011 for the later. In other words, these two constitutions were politically motivated constitutions and the people of South Sudan were not part of it entire process. Unfortunately, it’s a replica of constitutional crisis in the then Republic of Sudan where there has never been a stable constitution, which South Sudan is likely to inherit. Consequently, we all know the end result of such a political manipulation with Sudan as typical example. I hope nobody is interested in constitutional crisis in South Sudan at this time and we must correct ourselves earlier before it is too late. A constitution is the mirror of the people and if you do not see yourself in the mirror, it’s obvious that such a mirror may find it way into dustbin. There are only two ways of passing a constitution worldwide: one is by constituent assembly, where all democratically elected members of parliament pass a constitution on behalf of the people or electorate. The second is through a referendum, where all the people are directly involved in the negotiations and approval of the constitution to suit their full interests. In practice, the later happened when the legislature is not a constituent assembly or when there is crisis of political leadership in the country particularly in a multiparty democracy. In this regards, the constitutional approval by referendum is always an amicable solution. A case in point is our neighboring African countries of Arab republic of Egypt, Zimbabwe, Kenya, to mention but few, where their constitutions were approved by referenda due to existence of either of the situations cited above. In South Sudan, the National Constitutional Review Commission NCRC is established by the provision of Article 202 (1) of the Transitional Constitution of South Sudan 2011. The NCRC is tasked under article 202 (6) of the same to “review the transitional constitution and collect views and suggestions from all the stakeholders, including any changes that may need to be introduced to the current system of governance”. Article 203 (1) of the Transitional Constitution empowers the President to present draft constitutional text to the constitutional conference which the criteria, number of participants and personalities to attend is a sole prerogative of the President. This is extremely a politically motivated process and lacks consultative face so far. The constitutional conference, according to the transitional constitution, shall debate draft constitutional text on behalf of the people of South Sudan and the same shall march it way to the national legislature for final deliberation and endorsement in order to send it to the president for Assent and it becomes a law. South Sudan National Legislature and Permanent Constitution - As I said about the two ways of passing a constitution, the South Sudan National Legislature for the case of parliamentary approval is not a constituent assembly anymore. In other words, the current members of bicameral assembly were not all elected in their respective geographical constituencies, but some are constituent representatives and some are appointed MPs, and therefore causes the national legislature incompetence to pass a permanent constitution of the Republic of South Sudan. Politically, the provisions of article 58 (2) (a and b) of the Transitional Constitution read together with the provisions of Article 94 (2) (a and b) of the same for composition of national legislature were just political decisions to urgently close gap of political transition. There is no legal basis to transport members of parliament from different jurisdiction to another. It is surely unusual practice ever witnessed, but we must swallow it as political decisions sometimes override legal procedures. Nonetheless, there are a lot of potentials for change and goodwill from Government of South Sudan to put national issues in right procedures. One credible example of the political will undertaken by the government is an amendment Bill of the Transitional Constitution of South Sudan, 2011, article 202 (4) of the same that states “the commission shall submit its report to the President after one year of its establishment”. When the said period elapsed in January this year and the commission did not complete even an inch of its task; the said article was amended and increased the period of the NCRC mandate for another two years to submit its report. Such act of goodwill may give room for further observations on the Transitional Constitution and seeks subsequent amendment on other implicated provisions to serve public interest. Policy Recommendations - After having convinced beyond reasonable doubt that South Sudan national legislature is not a constituent assembly and therefore incompetent to deliberate and pass a permanent constitution pursuant to the provision of Article 203 (7) of the Transitional Constitution, the following key policy recommendations are the only remedy to such constitutional crisis which our political leaders have adopted by default or design: Call on the President to initiate an extraordinary amendment Bill of the Transitional Constitution of the Republic of South Sudan, 2011 articles 58 (2) (a) and( b) and 94 (2) (a) and (b) respectively to reverse composition of the members of the bicameral assembly by relieving all the previously transported and appointed MPs so that South Sudan is left only with one House and that is National Legislative Assembly as a constituent assembly with competence to deliberate and pass our permanent constitution as direct representatives of the people of South Sudan and not a mixture of political appointees who represents different political interests altogether; Call on the President in case of an objection to relieve the said accommodated MPs for any public interest, initiates an amendment Bill of the Transitional Constitution of South Sudan, 2011 article 203 (1 and 7) of the same that provide constitutional conference and adoption by national legislature to be replaced with referendum so that it is the people of South Sudan to deliberate and directly approved their own permanent constitution in broad day light. The author is an independent commentator on governance, human rights and social accountability. He lives in South Sudan and can be reached at [email protected] Posted in: Opinions -- You received this message because you are subscribed to the Google Groups "South Sudan Info - The Kob" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send email to [email protected]. For more options, visit https://groups.google.com/groups/opt_out.
