Contextualizing and Understanding the Legal Underpinnings of Federal Debate in South Sudan

By Tong Kot Kuocnin

LLB (Juba), LLM (Nairobi),

June 25th, 2018(Nyamilepedia) —– As South Sudan slipped back to war in 2013, the debate on federal system of government resurface once again as it went silent when the country gained her independence in July 2011.

This incessant debate has again been triggered by the fact that many South Sudanese leaders who have swallowed these bitter pills when the region was struggling to succeed from the north have felt unease with the way the country was being governed.

This debate on the system of governance in the country has been fueled by the continuous transitional periods which began shortly after the country’s independence from the North in July 2011 although certain elements of federalism appears to have been enshrined in the transitional constitution of the Republic of South Sudan, 2011.

In this article, I shall labour to bring to fore, the contextual understanding of the legal underpinnings of federal debate in South Sudan, which, according to many South Sudanese is the best pill to do away with imbalances many claims have been besetting South Sudan.

But, as we begin our discussion on the above topic, it would be safe to state and point out how federalism evolves in various nations. According to many scholars on federalism, federalism as a system of governance evolves for different reasons for different nations depending on such arrangements which best suits them.

According to others, it evolves as is mostly seen in nations with vast expanse of land and multi-ethnic peoples; or diverse religions, historical, political, or other backgrounds.

In the United States of America for example, it was part of the fervor of the war of independence, which led to the articles of co-federation that gave powers to the confederate states and the federation. This was later to be translated into a constitution which gave more powers to the federal government.

In Nigeria for instance, it came about as a result of the multi- ethnic nature of the country. Agitation of the minorities for a system of government which would ensure continuity and give them a sense of belonging and most importantly the existence side by side of the three major religions-Christianity, Islam and Traditional mode of worship, in such a way as to divide the nation into two major entities.

In South Sudan, the Transitional Constitution of the Republic of South Sudan, 2011 (Amended 2015) had ushered and anchored in, the decentralized system of governance, which in another colour is the federal system of government. This system of governance didn’t evolved as it happened in either the US or Nigeria, but as an arrangement that best suits South Sudanese at the time of independence.  

The failure of South Sudanese to identify and acquaint themselves with this system, where powers have been devolved to the state and local governments respectively, is one of the reasons which didn’t halt this incessant debate on federalism.

This has of course been provided for under article 47 of the Transitional Constitution of South Sudan which stipulate that South Sudan shall have a decentralized system of government with the following levels:

1. The National level which shall exercise authority in respect of the people and the states;
2. The state level of government, which shall exercise authority within a state, and render public services through the level closest to the people; and
3. The local government level within the state, which shall be the closest level to the people.

Article 48(1) provides further the principles which shall guide the devolution and exercise of powers, the affirmation of the need for norms and standards of governance and administration at the state and local government levels that reflect the unity of the people of South Sudan while recognizing their diversity; acknowledgement of the roles of the National Government and the states in the promotion of the welfare of the people and protection of their human rights and fundamental freedoms; recognition of the need for the involvement and participation of all people of South Sudan at all levels of government as an expression of unity; and pursuit of good governance through democracy, separation of powers, transparency, accountability and respect for the rule of law to enhance peace, socio-economic development and political stability.

Equally, article 48(2) enunciate that the National Government shall exercise its competences in accordance with this Constitution and the law; and respect the powers devolved to the states and local governments.

On the same vein, article 49 equally provides that, in the administration of the decentralized system of governance, the following principles of inter-governmental linkages shall be observed:

1. The linkage between the National Government and the local government shall be through the government of the relevant state;
2. In their relationships with each other or with other government organs, all levels of government shall observe the following:

1. Respect each other’s powers and competences; and
2. Collaborate in the task of governing and assist each other in fulfilling their respective constitutional obligations;

1. Government organs at all levels shall perform their functions and exercise their powers so as:

1. Not to encroach on or assume powers or functions conferred upon any other level except as provided for in this Constitution;
2. To promote co-operation by rendering assistance and support to other levels of government;
3. To promote communication and coordination between all levels of government;
4. To adhere to procedures of inter-governmental interaction and comity;
5. To respect the status and institutions of other levels of government; and
6. To promote amicable settlement of disputes before resorting to litigation;

Given these experiences, the definitions of Federalism have often been fraught with pitfalls in the minds of South Sudanese because of their inability to canvass all forms of the particular concept or idea sought to be defined.

Federal system of governance already exists in the constitutional context and application in South Sudan as the provisions of the Constitution are straight forwardly clear and understandable.

It would be equally safe and even more convenient to explore further the scholastic contextual and legal understanding underpinning the quest for federal system of governance from other publicists which have firsthand understanding and its practical application.

Generally, the concept of federalism relates to the division of power between national government, and other regional or state governments and sometimes local governments. Such powers may however be shared in various ways, sometimes with a stronger center or with weaker center which is often referred to as co-federalism.

According to Prof. Ben Nwabueze, federalism is an arrangement whereby powers of government within a country are shared between a national country-wide government and a number of regionalized (i.e. territorially localized) governments in such a way that each exists as a government separately and independently from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all others.

In this sense, there are five (5) different principles and issues which are involved in this definition. One of which is that Government rather than geographical entities or people as the basis of the federal arrangement. This means that the federal system of government is based on government rather than geographical entities or peoples as the basis of the federal arrangement.

The second bit is the Separateness and independence of each government. This again entails that each government is separate and independent from the other in their territorialized and localized setting. The third element being the equality between regional governments. This means that regional governments are equal and no any other level of government is superior to the other.

Fourthly, the number of regional governments between whom a federal arrangement can meaningfully exist and fifth being the techniques for the division of powers underlying objective of the federal arrangements.

Equally, Prof. Ojo added his voice in that federalism is capable of different meaning and conceptions, depending on the perspective and the background of the perceiver.

However, this writer concurs with Prof. Ojo that, of course, there are writers whose emphasis has been on the form of the constitution and certain institutions and as far as they are concerned the absence of these makes any discussion on federalism futile.

On the same vein, another school holds that federalism is the product of social forces and that the ultimate political structure is dependent on those forces.

Equally, still is another school of thought which holds that the party system is a crucial federal variable while another is that inter-governmental institutions and arrangements are critical for structuring political and social interaction.

However, with the nebulous and uncertain form and content of federalism, we are in agreement that it is better to avoid argument about definition until theory and practice could be harmonized satisfactorily in South Sudan.

This is most important in the developing countries which are presently laboratories of political and constitutional activities. Hitherto, Williams Living Stone believes that the essential nature of federalism is to be sought not in the shading of legal and constitutional terminology, but in the forces-economic, social, political, cultural – that have made the outward forms of federalism necessary.

The essence of federalism is not in the constitutional or institutional structure, but in the society itself. Federal Government is a device by which the federal qualities of the society are articulated and proffered.

In other words, it is factors that impel the formation of a federation that determine its essence or nature. The only conclusion that can be reached from this is that since various factors necessitate the forming of federalism in various states, their nature, form and scope necessarily differ.

There is no Universal agreement as to what federalism is. A federal government means what the constitution says it means, and that’s what has been ushered in the transitional constitution.

Whatever the prerequisites for the formation of a federal union, there is no doubt that there are certain minimum requirements which are the main focus of the federal concept and which must be in place before a nation can be said to be truly federal.

In conclusion, the incessant debate opting to choose federalism to be the system of governance in South Sudan is a healthy debate and every south Sudanese is constitutionally entitled to express his/her view on the governance of his/her country.

But it is thus essential to note that, given the pronouncement of the constitutional provisions as stated above, quintessentially evidence that federalism exist in constitutional context and application in south Sudan.

Hitherto, the failure of south Sudanese academia to education our masses on the system of government that we have in place in the country is what has added more confusion and hence triggered this unending debate on federalism as the best system of governance to be adopted. Thus, as stated above, the federal system of government is based on government rather than geographical entities or peoples as the basis of the federal arrangement as opposed to what many entities and peoples wrongly perceive of and assume. I humbly rest my case here.

The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate before All Courts in South Sudan. His areas of research interest include: Constitutional Law and Human Rights, Rule of Law and Good Governance.