South Sudan’s Transitional Constitution and the issue of decentralization

By James Tot Mathiang, Canada,

April 10, 2015(Nyamilepedia) — The newly independent state of South Sudan is faced with enormous challenges of nation-building particularly the need to set up a democratic political system. Since it became independent in July 2011, the political parties have been locked in an argument about the right political system that would work for the new nation. Some argue that a decentralized political system is better than a federal system. Others contend that the ethnic diversity of the South would be better served under federal model. In 2012, a fake committee was set up to work on drafting a permanent constitution because since July, 2011, the newly independent country has been operating under provisional constitution.

The argument of this paper is that federal system should be the best political system that would work for South Sudan. A decentralized unitary system in which the executive has an absolute power over territorial governments would be in conflict with the aspiration of the people of South Sudan. The paper explores the ideas of Western philosophers like Plato, John Lock and Machiavelli.

Each country all over the world chooses a form of government which meets the needs of its citizens. Most people prefer democratic system which gives people rights and freedom of expression, equal opportunities and liberty. The Republic of South Sudan, like any other newly created country in any other parts of the world, is struggling as to what system of governance to adopt and why. Federalism is the best governance option for the new Republic of South Sudan because the country has diverse social settings; traditions or religious norms; tribal differences; as well as some other cultural divide. Since independence 4 years ago, there have been many controversial political issues which faced the Republic of South Sudan (RSS). One such controversy is its transitional constitution which was drafted two months prior to independence in order to serve as a provisional document to run the country until the permanent constitution is drafted. During the drafting for the provisional constitution, the general public, along with South Sudan opposition parties, had rejected the idea of “decentralized system” which was stated in article 1.2 of the constitution, 2011. Instead, the current Rebel Leader Dr. Riek Machar, and the general public, as well as other various political parties called for a federal system—arguing that it is the best system they believed would foster peace and stability in the country.

The civil society and all the opposition parties of South Sudan, as well as the general public discussed, and asked the mythic question: What kind of political system would be appropriate for the South? The answer to this question will be discussed and debated with the use of three authors: Plato, John Locke, and Machiavelli. Like South Sudan opposition parties, Plato would likely agree with the idea of federalism, as he noted that “we have many wants, and many persons are needed to supply them, one takes a helper for one purpose and another for another; and when these partners and helpers are gathered together in one habitation the body of inhabitants is termed a State” (Plato 360 B.C.E, book II). Although Machiavelli would possibly disagree with federal system because he believed in a special relationship between moral goodness and legitimate authority, John Locke who believed in “state of nature” would agree with those calling for adoption of federal system. Locke’s support for federal system could be observed from his statement in which he argued that “man being born, as has been proved with a title to perfect freedom and an unrestricted enjoyment of all rights and privileges of the law of nature equally with any other man……in the world” (Locke 1632-1704, 69-73). Using ideas from these three authors we can see that federalism is the best governance option for the new Republic of South Sudan, based on the following qualities: division of power and properties, equal opportunities for all citizens, and member unit representatives have veto power on central decisions.

Before debating the political system that would be appropriate for South Sudan, it is important to know beforehand what federalism and decentralized democratic systems are in order to avoid ambiguity. Federalism in the broader definition is “a system of government in which power is divided between a central authority and constituent political units”. There is no single definition of decentralized democratic system, but decentralized system is “a form of government with its top-level decision-making processes dispersed throughout the system rather than concentrated in one person, place or legislative body” (Babylon’s free dictionary). With these definitions, it is clear that in federalism, power is devolved between a central authority and constituent political units, whereas in decentralized system, decision is made from the top-level and then distributed throughout the system rather than concentrated in one place or legislative body.

One could argue that federalism would be the best political system for the Republic of South Sudan. When it comes to the mythic question “whom should I imitate”, the South Sudan opposition parties and the general public argue that federal system is the only option that the government of South Sudan must adopt. Here are some of the qualities which make the federal system the best option: (1), division of power and properties (2) equal opportunities for all citizens (3) member unit representatives have veto power on central decisions. First, the division of power between central authority and constituent political units would help minimize problems between local citizens and the central government. Every citizen, including small tribes, would have more autonomy in local governments than they would have in central government. For example, in South Sudan, some states are more developed than the others in terms of basic services like roads, healthcare centres, schools and clean water. And these differences are caused by imbalance of power and unequal distribution of resources.

Second, equal opportunities for all citizens would be guaranteed under federal system than any other system. Federalism would address ethnic tensions in South Sudan by empowering local governments to deal with local matters. Since the interim period until the independence of South Sudan, minority tribes believe that the government is dominated by the largest tribes even though they fought side by side during the civil war with the largest tribes. For example, in the current government, some of the small tribes in South Sudan have no representatives in the government of South Sudan. Therefore, the frustrations in those communities and the feeling of marginalization have created hatred and the ethnic tensions between Southerners have become so intense and amounted in mass killings between tribes. The evidence of such conflicts is clearly underscored by the March 2012 attack of Lou Nuer cattle camps by Murle tribe which left over 1,500 people dead and other hundreds wounded and the Massacred of over 20,000 Nuer civilians in December 2013. .

Although critics of federalism in South Sudan argue that as the domination of small tribes is concerned, South Sudan needs a governing system which gives the citizens equal rights, freedom of expressions and so forth to deal with diversity. However, the opposition parties and the civil society argue that one of the major weaknesses with the current unitary system is the huge gap in social, political, economic and civic standards between those who run the governments and the ordinary people, particularly minority groups.

Third, the important of federalism is that member unit representatives have veto power over central decisions, that is, federal system gives member unit representatives veto rights on central decision. Like any country governed under federal system, the people of South Sudan would be given full rights to elect their representatives in both lower and upper levels of governments if the only system adopted is federalism. In Canada for example, every province is freely allowed by law to elect some members from their provinces to represent them in both provincial and federal governments.

The critics of centralized system in South Sudan argue that as the domination of small tribes is concerned, South Sudan needs a governing system which gives the citizens equal rights, freedom of expressions and more autonomy. Another argument the proponents of federalism put forth is that the Republic of South Sudan should choose federalism because for the last six years interim period, the region faced a lot of social problems which caused social unrest in the country such as cattle rustling between tribes, and rebellions against the current government. For instance, “the UN Secretary-General’s Special Representative for South Sudan in 2012, expressed fears of more ethnic violence in South Sudan especially in Jonglei state, after it emerged that tribal militias could have seem to have acquired modern weapons, communications equipment and appear well organized”  (Sudan Tribune, March 15, 2012). The South Sudan SPLM/A-IO argued that to prevent further violence from happening, the transitional constitution must adopt federalism and give each region a full autonomy. Furthermore, implementing a federal system would give each citizen a sense of responsibility, freedom, and nationalism.  Therefore, each tribe in South Sudan would be equally represented in both central and local governments.

On the other hand, the Republic of South Sudan transitional constitution, 2011, which is based on decentralized democratic system, stated that one of the strategic objectives that democratic decentralization serves is to broaden legitimacy, transparency and accountability within the political system of the Republic of South Sudan. In the current South Sudanese transitional constitution, it is mentioned that decentralized democratic system is the best option because of the following reasons. First, it makes the relationships between central and local governments and between local governments and citizens durable in terms of distribution of power. The national and state governments may share functions and collaborate on major national resources like oil. For example, the current transitional constitution stated that any state of the ten states South Sudan with oil will get 2% of the oil revenue.

Second, decentralized democratic system is the extension of democratic processes to lower levels of government. For example, in the transitional constitution, 2011, it is stated that decentralized democratic system increases local government accountability, transparency, and responsiveness. For instance, anti-corruption committee must be formed in state governments, as it was formed in the central government. Any person accuses of corruption must be investigated without delay.

Third, democratic decentralization incorporates both decentralization and democratic local governance. The most and the last important argument made in the transitional constitution is that South Sudan is a diverse country which has a long history of tribal conflicts, so it needs a governing system with tough laws and order, a system which works for all individual citizens. Therefore, the transitional constitution is based on decentralized democratic system.

One may contend that John Locke’s view on the function “Of Civil government” is evidence that he would favour federalism which gives state governments more autonomy. Like federal system which is highlighted above, Locke explained the function of a genuine government and distinguished it from undemocratic government. With no doubt, Locke would certainly support the idea of federalism for the Republic of South Sudan, as he stated that “government should rest on the consent of the governed and be limited in its powers” (Locke 1632-1704, 68). Furthermore, Locke who believed in democracy would also agree with the idea that member unit representatives should have veto power on central decisions. That means all ten South Sudan states in the federal system of government could have independent powers in terms of decision-makings. Therefore, the above quote of John Locke could be related to the argument made by South Sudan opposition parties that the transitional constitution of South Sudan has given the central government more powers than powers given to states.

Locke’s statement that “man being born, as has been proved with a title to perfect freedom and an unrestricted enjoyment of all rights and privileges of the law of nature equally with any other man……in the world” (Locke 1632-1704, 71-72) would mean that power between central and state governments must be equally divided. Yet, unlike South Sudan opposition parties, when choosing which system to adopt, Locke would support a system that follows the state of natural laws as he stressed that “to understand political power correctly, and derive it from its origins, we must consider what state all men are naturally in; a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of law of nature, without asking permission or depending upon the will of any other man” (Locke 1632-1704, 69).

Since the Republic of South Sudan is so diverse, with different traditions or religious norms, tribal differences, and other cultural divides, John Locke would undoubtedly agree on autonomy for South Sudan states. On the other hand, John Locke, who also believed in property rights, would certainly agree with the current transitional constitution of the Republic of South Sudan transitional constitution, 2011 which gives 2% of oil revenues to the state governments which produce oil. As country with history of tribal conflicts, Locke would support the application of toughest law in the new Republic of South Sudan, because in “Of the civil government”, he stressed that state of nature vests each reasonable individual with an independent right and responsibility to enforce the natural law by punishing those few individuals who irrationally choose to violate it. Furthermore, Locke concludes that “in breaking the law of nature, the offender declares himself to live by another rule that of reason and justice” (Locke 1632-1704, 70).

Plato would likely agree that federal system is the best option for the new Republic of South Sudan as he stated in the Allegory of the cave:“And if we imagine the State in process of creation, we shall see the justice and injustice of the State in process of creation…” (Plato 360 B.C.E, book II). Plato is right in the above quote because it is exactly what is happening in South Sudan. Fifty plus years of civil war in Sudan have completely changed the way people behave; therefore, adapting the democratic way of live, might take South Sudanese sometimes. In addition, it is stated earlier, under the federal system the division of power between central authority and constituent political units would help minimize problems between local citizens and the central government. By emphasizing the “the creation of new state” Plato stressed that “A State, I said, arises, as I conceive, out of the needs of mankind; no one is self-sufficing, but all of us have many wants. Can any other origin of a State be imagined?”

Nevertheless, Plato would likely agree with John Locke in supporting the Federal System for the Republic of South Sudan. In his dialogue with Socrates- GLAUCON, Plato stresses that “as we have many wants, and many persons are needed to supply them, one takes a helper for one purpose and another for another; and when these partners and helpers are gathered together in one habitation the body of inhabitants is termed a State” (Plato 360 B.C.E, book II). Like those who believe in full democracy, Plato in the above quotation imply that country cannot be built by a few people, so, each individual has a role to play in state building.  In comparison with Plato who stresses that state is consists of different kinds of people with variety of skills, federal system focuses on power sharing and autonomy of state.  For example, Plato in Allegory of the Cave states that ‘I am myself reminded that we are not all alike; there are diversities of natures among us which are adapted to different occupations. The point Plato is trying to make is that every citizen is important because each individual makes the state better off, in terms of contribution. For instance, in every country there are many people who specialized in different kinds of things, such as engineers, doctors, teachers, merchants and so forth.  Because all views are based on either the Republic of South Sudan should choose a federal system or a decentralized democratic system, it is very clear that Plato supports the federal system.

Although a federal system has been practiced effectively in places like Canada, USA, Germany, and so forth, Machiavelli’s view on federal systems would most likely differ from those countries’ standpoints and from the views of John Locke and Plato. Machiavelli’s view and methods of governing, is different from others in a sense that he believes that the head of a state should not be too hard or too soft to its people. Machiavelli would most likely reject the idea of federalism for the new Republic of South Sudan, because in his message to the Lorenzo, he emphasizes “I say that all men and especially princes because they are situated higher, exhibit certain qualities which bring them either blame or praise. It is necessary for a prince to know very well the methods of both animal and man. The prince should choose the natures of the fox and lion (Machiavelli, 1469-1527, CWT: Vol. II, pp. 282-283, 285).

Based on above quotes, Machiavelli would probably support the argument made in the transitional constitution that South Sudan is a diverse country which has a long history of tribal conflicts and needs a governing system like the decentralized democratic system with tough laws and order which work for all individual citizens. This sort of conflicts between tribes would have direct contrast with Machiavelli’s argument about what a prince should do. “It is therefore necessary for him to have the ability to change his mind according to the way the winds of fortune and conditions required” (Machiavelli, 1469-1527, CWT: Vol. II, 288). This statement implied that in light of the foregoing debate, a decentralized democratic system with guarantees of regional or local autonomy would be much more appropriate for the Republic of South Sudan.

Even before the independence, South Sudanese debated which system to choose from and why? However, the current transitional constitution surprised a lot of Southerners because most people from South Sudan favored federal system.  Base on the critical analysis of this paper, it is very clear that Plato and John Locke would favor the federal system for the African’s newest nation South Sudan.  According to their democratic perspective, Plato and John Locke would consider a system of government in which power is divided between a central government and constituent political units.

For Plato, a state is built through contribution of each individual, as he stated “we have many wants, and many persons are needed to supply them, one takes a helper for one purpose and another for another; and when these partners and helpers are gathered together in one habitation the body of inhabitants is termed a State” (Plato 360 B.C.E, book II); whereas Locke believed in freedom and equality for all. In Machiavelli’s viewpoint, government should be flexible, as he stated “it is therefore necessary for him to have the ability to change his mind according to the way the winds of fortune and conditions required” (Machiavelli, 1469-1527, CWT: Vol. II, 288). Machiavelli’s argument for the right of majority is the hypothetical groundwork for the distinction between duty to society and to government.

In conclusion, federalism would be the best system considering the local realities and history of South Sudan. Division of powers and properties, equal opportunities for all citizens which are found in federal system would work well with South Sudan ethnic diversity. In the context of decentralization, transitional constitution must often be reshaped in order to perform a new set of duties efficiently, equitably, and effectively. People like Plato and John Locke consider a system of government in which power is divided between a central government and constituent political units.

The writer is a South Sudanese citizen living in Diaspora, but supporting the idea of Federal System for the world’s youngest nation South Sudan. Also, the author is a graduate from the University of Calgary, Calgary Alberta Canada and the author hold bachelor degree in Community and International development, minor degree in Health Science and a Pharmacy diploma. For further information about the author please email: jamestot20032003@yahoo.com.