Constitutional transformations: failure and opportunity in post-independence South Sudan

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South Sudan achieved independence in 2011 after roughly 50 years of civil war. Celebrated as a ‘dream come true’, independence was historic, marking the beginning of a new era for the South Sudanese. As might be expected, the new nation was faced immediately with myriad of post-independence challenges. One such challenge was drafting the Transitional Constitution to provide for a temporary governance system while the country prepares to stand on its own feet. Written in haste (and in a non-inclusive manner), the Transitional Constitution sought to concentrate power in the national executive. An all-powerful national executive (in the person of President) was deemed necessary to maintain peace and stability in the country, at least as a transitional measure. However, it has miscarried, resulting, in part, in the intractable political instability in South Sudan.This thesis examines post-independence constitutional development in South Sudan, making particular findings. One of the findings, and, indeed, the thesis’ principal claim, is that there has been constitutional failure in South Sudan. Many factors attest to this. For example, there was a failure of constitutional discourse in 2010 in Southern Sudan (the then semi-autonomous region of Sudan) regarding the proper way to draft the Transitional Constitution – ie an elite-driven or people-driven process. This failure was evidenced in the failed talks between the SPLM, the incumbent party, and opposition parties. The failed talks left the SPLM largely in control of the drafting process, the outcome of which is the law that has failed to serve as a public good. That is, the Transitional Constitution, designed to serve the SPLM’s parochial interest or to secure short-term goals, has failed to provide a basis for democracy, constitutionalism, and the rule of law – the universal liberal ideals to which the South Sudanese aspire.To ensure the country does not end up with another defective governing document, the thesis critiques the existing permanent constitution-making process under the Transitional Constitution, identifying some serious problems. An example of these problems is the President’s central role throughout the process. This bodes ill for a permanent constitution for South Sudan, for it is highly likely that the President, having his own political future (and that of the SPLM) at stake, will control the drafting process yet again. To address these problems, the thesis offers an alternative drafting process−the roadmap to a permanent constitution. The roadmap involves two steps: (1) an elected constitutional assembly to lead the drafting process; and (2) a constitutional referendum as a means by which the South Sudanese could approve or veto a draft permanent constitution. Incidentally, this would be a moment for the populace to check against the inevitable risk of elite capture of the process. Central to the design of a permanent constitution is substantive constitutionalism, meaning checks and balances. A permanent constitution will be effective in constraining the institutions of government, including the unduly powerful President, only if it is founded on an impervious system of checks and balances.Beyond constitution building process, the thesis considers two important issues of governance. The first is the type of political system – a power-sharing arrangement—the country needs to accommodate its two levels of government. Dual federalism offers itself in that respect, federalism being the ideal system of government for some quarters in the country. There are many arguable advantages to dual federalism. One obvious advantage is that it would ensure an effective division of powers between the national government (SPLM) and state governments. This would mean the national government would never have the powers that have allowed it to undermine the state governments’ political autonomy, to the extent the President currently has the power to unilaterally dismiss a (supposedly) democratically elected state governor and appoint a new governor.The second is the challenge to transform the SPLM into a democratic institution. The South Sudanese may craft the best constitution in the world, however if the prevailing military mindset of the SPLM remains unchanged, little can be expected from the constitution in promoting much-needed democractic governance. The SPLM internal reform, the thesis argues, must be undertaken simultaneously with the ongoing efforts to implement peace in South Sudan. Attempting to implement peace without addressing the SPLM internal reform will not meet the ultimate goal of achieving lasting peace and political stability. The SPLM is unlikely to voluntarily resile from its use of force to maintain itself in power and that will likely continue to be a source of political instability for the country if it is not addressed as part of the broader conflict resolution process.