Opinion,
By Lul Gatkuoth Gatluak
Greetings:
Maale!
Wednesday March 13, 2024(Nyamilepedia) — I am writing this encouragement message as a concern fellow countryman who always follow our country political affairs and one of the pressing political activity pertaining Republic of South Sudan had occurred on Friday November 3, 2023, when South Sudan’s President Salva Kiir Mayardit, appointed you as the chairperson of the “National Constitutional Review Commission (NCRC).” You and your colleagues are tasked with the review of South Sudan’s permanent constitution and the reception of your appointment was held on Saturday February 17, 20024 in Juba respectively. The reception had been characterized with excellence speeches such as the speech of the deputy Speaker of the National Legislative Assembly of South Sudan Honorable Nathaniel Oyet and that of Gen: Puok Kong.
Beside (NCRC) appointment, the President had also reconstituted the National Elections Commission (NEC) and Political Parties Council (PPC). All these republican decree reconstitution appointments are meant for the conduct of the country’s long-awaited general elections that had been slated to take place this year in December 2024. Currently, the nation’s eyes are on you and all National Constitutional Review Commission members who have been appointed with you. The reason nation’s eyes are on you is that, citizens are eager to know whether the constitutional review commission board will get it right this time around or the same dejavu, which is the absence of political space that made it impossible to allow other political parties and civil society organizations to established a democratic constitution in 2011 Transitional Constitution making process will repeat itself. The fact that your entity is entrusted to review the permanent constitution under the Revitalized Peace Agreement aiming of establishing a lasting stability, the expectation from us all is that, (NCRC) must realize the making of a people-led and people-owned permanent constitution, that will enshrine the collective wishes and aspirations of the people of South Sudan on how they wish to be governed as this appointment had included members of civil society, the business community, and other stakeholders.
In 2011, the ruling party Sudan People’s Liberation Movement dominated the drafting process of the transitional constitution. This action resulted into the creation of an illegitimate constitution that vested an enormous power in the hands of the President. In this regard, the transitional constitution of 2011 has failed to create an environment that is conducive for democracy and the rule of law. In short, the transitional constitution has encouraged authoritarian rule in the hands of the president. For example, Article 101, of the transitional constitution had enumerated the responsibilities of the office of the President, as a king-like executive. President Kiir has interpreted these provisions and abused them as power without limit. Another example is that, in 2013, only eighteen months after independence, President Kiir had summarily dismissed the governors of both Lakes and Unity State. This action was wantonly unconstitutional and motivated by the governors’ perceived comradeship with VP Riek Machar at the time. The saddest part was that, President Kiir has consistently exercised these provisions without due process given the fact that Transitional Constitution of South Sudan concentrated power on the president at both the national government and state levels even though both national and State constitutions made it very clear that there is a separation of power between national and State governments. Thus, the president’s actions had rendered the legislative and judicial branches of both national and State mute with the fear of retribution. Then, the constitution has become a tool of division and abuse by those in power, making the crisis inevitable in 2013.
This time around, South Sudan needs a constitution that should limit president powers. A type of constitution that would allow him to appoint and nominate only his executive cabinet members and prohibited him from appointing members of legislatures and bar him from unilaterally removing elected governors and commissioners from office. On many occasions, he violated the constitution which included bypassing his terms in office once his term had expired in 2015. We need a President of South Sudan who must obey the constitution, doesn’t abuse the power, and should serve only for two terms four or five years per a term.
Similarly, State governors and county commissioners could serve two terms and they could be elected and reelected to offices by ordinary citizens. In any society, once government officials are elected to offices by adult enfranchisement, they do good to their constituencies so that they re-elect them to office again when their term has expired and fail to reelect them if they have done a horrible job during their first term in office. What one tried to state here is that, we need a constitution that should limit a president’s powers, define the amount of time a president, governor or a commissioner can serve as leaders. The removal of an elected governor or commissioner should be left to the hand of the state or county assemblies or to the people themselves through a recalled election or State parliament and county’s council impeachments.
In any country, a constitution is the supreme law of the land, which outlines the organs and powers of the government whether national or state. It always clarified inter-government linkage between the National Government and the local government, which means government organs at all levels shall perform their functions and exercise their powers without interfering with each other’s affairs except in rare occasions like when there is a crisis. This means all levels of the government can collaborate in the task of governing and assist each other in fulfilling their respective constitutional obligations. The national government may only intervene if the State government cannot or fails to execute its obligations under the constitution of the state.
If the national government decided to interfere in the State government roles after a crisis in that particular State, the president must put such a decision in writing if it concerns legislation or such incompetence has legal consequences. This is in order to avoid conflict of interests and that’s why such a written decision could be signed by another member of the cabinet if the decision concerns the assignment of another cabinet, immediate example would be the minister of presidential affairs.
Ultimately, national government and State governments are prohibited from interfering with each other’s functions. Therefore, the permanent constitution you are tasked of making is expected to be based on inter alia driven by participatory supremacy of the people of South Sudan. I urge you to initiate a federal and democratic system of government that reflects the character and the diversity of South Sudanese. The constitution must guarantee peace and stability, national unity and territorial integrity of the Republic of South Sudan; promote people’s participation in the governance of the country through democratic free and fair elections and the devolution of powers and resources to the states, counties, Payams, and respecting ethnic and regional diversity and communal rights including the rights of communities to preserve their history, develop their language, promote their culture and expression of their identities, to mention but just a few.
With you as the chairperson of (NCRC), one remains optimistic that the Permanent Constitution, when made in an inclusive and participatory manner, will go a long way in addressing all the root causes of conflicts which have been stipulated in the Revitalized Peace Agreement. There is no doubt that South Sudan’s Transitional Constitution, adopted in 2011 during the movement’s pause from years of civil war, is not a people’s covenant but a creation of a few handpicked individuals by the president, purportedly to set the stage for the transition to a multi-party democratic political order in the country.
The 2011 transitional constitution was a guidance document or an instrument which is full of many flaws that required careful review. The perceived efficacy and impact of imposing a centralized constitution to enforce un-democratic system of governance without public participation became the cause of the conflict in South Sudan. Notwithstanding the already existing tribal sentiments and lack of political will, some provisions in the Transitional Constitution fueled the problems of the constitutional crisis in South Sudan.
If one could make a comparison between South Sudan and the United States of America during America’s early days, he would pinpoint that all challenges we are facing today in our country are not different from the challenges the United States was facing in its early days. For example, during the end of the American Revolutionary war, some leaders of the new country wanted power to remain essentially with State legislatures, while others including George Washington advocated for a strong central government.
The Article of Confederation also failed to provide the central government with an executive branch, a federal judiciary, and the power to levy taxes and regulate commerce. States were also squabbling as they imposed tariffs on one another’s goods, claimed lands in their boundaries, and issued various types of paper money. The country as a whole was headed toward chaos, with stagnating trade, crushing debt, increasing disorder, and growing hostility between the powerful moneyed classes and the impoverished farmers. tensions between northern and southern states were increasing; the British maintained armed forces in the western United States; clashes with Native Americans disrupted westward settlement; Spain limited the use of the Mississippi River; people bitterly opposed new taxes and the Whiskey Rebellion resorted to violent resistance. Hence, the farmers who had fought in the war returned home without pay to face escalating state taxes, property confiscations, and debtors’ prison. In the summer of 1786, an army uprising broke out in Massachusetts led by veteran farmer Daniel Shays and his followers. The inability of the government to handle effectively the skirmishes associated with Shays’ rebellion alarmed the young country’s leaders.
Based on above mentioned grievances, many people began to distrust the government and feared the country was moving toward monarchy or the wrong direction and confusion. Several months later, fifty-five delegates from twelve of the 13 States met in Philadelphia to write a new constitution, the one that would be strong enough to hold the fractious States together. Throughout the summer of 1787 the delegates debated the merits of various political systems both ancient and contemporary. Ultimately, the framers had decided to adopt an ancient Roman model that incorporated a separation of powers and extensive checks and balances, with a bicameral legislature, single executive, and independent judiciary. Toward the close of the framer’s discussions, a committee including Alexander Hamilton from New York, William Samuel Johnson from Connecticut, Rufus King from Massachusetts, James Madison from Virginia, and Gouverneur Morris from Pennsylvania, was appointed to distill a final draft. However, much work to create the federal constitution was drafted by James Madison.
By mid-April 1789, the new Constitution and government were in effect, with George Washington having been chosen as the President of the United States. Henceforth, James Madison, America’s fourth President (1809-1817), made a major contribution to the ratification of the Constitution by writing the Federalist Papers, along with Alexander Hamilton and John Jay. In later years, he was referred to as the “Father of the Constitution.”
In South Sudan, we were confronted with numerous crises after independence. Among these crises was the land grabbing, communal violence, unknown gunmen, lack of check and balance between the national government and States, a constitutional crisis that exploded into war in 2013. And finally, the overwhelming corruption. In this regard, the reconstituted NCRC will be expected to come up with a constitution that reflects the Federal and democratic system of government that reflects the character of South Sudan in its various institutions, which guarantees good governance and the rule of law, human rights, gender equity, affirmative action, stability, national unity and territorial integrity of the Republic of South Sudan.
In summing, the newly established National Constitutional Review Commission (NCRC) chaired by brother Dr. Riang Yar Zour had a lot of expectations from citizens of South Sudan. Citizens are expecting you to come up with a constitution that reflects the Federal and democratic system, which guarantees good governance and the rule of law. The transitional constitution of 2011 has failed to create an environment that is conducive for democracy. We expect the permanent constitution will set a stage for national elections, end the crisis that had crippled the nation since 2013, restore popular confidence, and guide South Sudan to a new political dispensation. All these changes will come when you and your colleagues put aside the solipsistic manner.
Undoubtedly, your appointment as a framer of South Sudan Permanent Constitution, had given you a footprint in South Sudan’s history. You are now like James Madison of the United States who worked hard to create check and balance after he noticed the president had a constitutional power that allowed him to oust executives from offices similar to our current case in the Republic of South Sudan. Those of us who have a brief knowledge of you as a person are jubilant, knowing that the commission is in good hands. If this Constitution will not derive its authority from the will of the people and shall not be the supreme law of the land South Sudanese people are yearning for, the fault will lay solely on people who aspire for a system of governance whose binding constitution is not all people driven. Allow your spirit to bling like a firefly and burn like fire. Peter Gatdet Yak Majiek said in one of his videos. “If you are tasked with a position, make sure you burn like fire while carrying out that task.”
