SOUTH SUDAN FEDERALISM OR DECENTRALIZATION?
Introduction
June 9, 2014(Nyamilepedia) — South Sudan was formally declared a Republic on 9/7/2011 when it attained full statehood as a sovereign independent state amid jubilations of all South Sudanese and their friends. That was a great historic moment. It was the outcome of a referendum held in January the same year giving 99% of the votes in favour of ceassesion as opposed to continued unity with Northern Sudan.
Surprisingly hell struck, Juba the Capital, on 15/12/2013, barely two years after the birth of the new republic. Destructive fighting between the Dinka and Nuer (the two largest ethnic communities) ensued. It was a bloody moment and amidst the horror of the whole world. Brutal fighting claimed thousands of lives of South Sudanese and displacing many more others.
In this very short period of independence South Sudan has had checkered history of constitutional development. Dictatorship, corruption, tribalism and civil unrest has engulfed the country. Clearly the highly centralized Transitional Constitution of 2011 has broken down. The centre can no longer hold and things have fallen apart for President Salva Kiir.
Under the said Transitional Constitution South Sudan has been centrally controlled under a defacto one party system- The Sudan People’s Liberation Movement/Army (SPLM/A). The too much talk of democracy and multi-partism is none other than rhetoric.
General Salva Kiir the President of the Republic is a very reluctant reformer and is adamant about any change for the better. He would rather fight to subdue anyone including the UN.
Thus opposition within the party became inevitable. Dr. Riek Machar the former Vice President who was unceremoniously dismissed in July 2013 was also forced to flee for his life to the bushes of Upper Nile. As we write Dr. Riek has staged a ferocious war of come back to reform the system.
Indeed the periods of decentralization (1972-1983 and 2005-2014) can be considered as failed attempts.The main problem has been constant interference and undermining of lower level governments by the respective Presidents. Those actions were first done by Numeiri in 1980, 1981 and 1983 when he continuously dissolved the Regional governments in South Sudan in order to achieve his objective of controlling and marginalizing the Southern Region. The Self-government Act 1972, (the then Constitution for the Southern Region) was abrogated, it broke down and the SPLM/SPLA war of 1983 was started.
President Kiir has followed the same footsteps of President Numeiri; he has never respected any constitution since he took power in 2005. He appointed the Ministers, members of the national legislature, civil servants, members of the organized forces and the judiciary and also dismissed elected Governors Etc; Until the Transitional constitution also broke down. Now another civil war has also started as from 15/12/2013
In fact the two leaders have never had the understanding, the political will and commitment to support decentralization/devolution and make it work.As we hear President Kiir and his delegation have adamantly insisted on having a decentralized government amidst wide spread cries for federalism in Equatoria, Upper Nile and parts of Baher El Ghazal which could amount to 80% of the population.
Skeptics of federalism have always argued unconvincingly that Equatoria would break away if the South Sudan were to be federated and that the Nuers of Upper Nile would refuse to share the proceeds of the oil with the rest of the country. There is absolutely no scintilla of evidence to prove those wild allegations. And, even if, that were the case, emergency powers under the constitution could be used against any balkanization.
The real problem has, however, been the greed of those in power wishing to recentralize more powers with the aim of looting the country and marginalizing the rest of the other communities. In other words, President Kiir and his group have become the “pigs” in George Orwell’s famous story of “the Animal farm”. There is therefore need to bring real life by introducing a suitable federal constitutional arrangement for the country if lasting peace were to prevail.
Many could still doubt that South Sudan may not hold together as a peaceful democracy but one would still argue that indeed the survival of the country as a democratic nation would depend on its adopting federalism.The Republic of South Sudan has an estimated area of 239,285 Square kilometers (excluding Abiyei) and a population of about 8.2 million according to the disputed 2008 population census. There are 64 ethnic groups with various cultures, speaking different languages and worshiping several religions including Christianity, Islam and atheism.
The Size of the country or geo-political entity also matters; as shown above, the Republic of South Sudan is a very large geographical entity and difficult to manage from the national Capital (Juba) or the ten current state capitals. There is great need to break down the sizes of the respective states from ten to about 22 (twenty two) along the former boundaries of the colonial districts or so to make them more manageable and reachable and also be symmetrical.
As stated elsewhere the populations and cultures available in the Republic of South Sudan need Political integration. We need to make the 64 ethnic communities in South Sudan to integrate, unite and live in harmony and this can be made possible through a system of federal governance. Federalism is also ideal for post conflict environment and building and accommodating diversities and; Managing conflicts of diversities can be achieved though a federal system of administration to avoid Dinka/ Nuer conflict as happened in December 2013 or Equatoria/Dinka conflict as was the case in 1983 during “KoKora”. Federalism enables smaller governments at the state and local government get closer to the people and become more responsive to their local needs.
In addition, Federalism provides for the promotion of good governance and popular participation in government in the sense that all levels of government can democratically elected which will offer opportunity for many people to participate in the management of their own affairs.In the case of the Republic of South Sudan, the experience of the Regional government in Southern Sudan from 1972 to 1983 has shown that this country could be successfully run on democratic basis if there was no interference from the top. There were several transparent, fair and free elections run in 1973, 1978 and 1983 leading to the establishment of democratic governments during those periods.
Furthermore the shared history of South Sudanese cannot be doubted as they fought together all the long wars of 17 years (1955-72) and 22 years (1983-2005) against the oppressive regimes in Khartoum culminating in the creation of an independent sovereign state of South Sudan voted through a referendum counted at 99% for succession of Southern Sudan from Northern Sudan. Moreover, South Sudanese have a strong sense of identity, they are all Africans from 64 ethnic groups including the Dinka, Nuer, Zande, Bari, Shilluk, Lotuka, Moru etc.
However, the current set up of 10 (ten) states and 77 (seventy seven) counties is extremely imbalanced. Some states are very large such as Jongolei and Western Equatoria and some communities are marginalized like the Murle, Moro, Kechipo, and Anuak. Fertit etc. these weaknesses can be ironed out through a symmetrical federal system.
Since we are advocating for a federal Government and not a confederal Government, then the possibility of the central government becoming weaker than the regional or local identities are minimal.
Definitions
What is federalism?
Legally, a Federal constitution is where the legislative and administrative authority of the National and State Governments are both subordinate to the Constitution, but co-ordinate to one another. In other words, the powers are divided in such a manner that the national government and the state government are each within a sphere co-ordinate and independent. They are mutually exclusive of one another and reciprocally limited in their fields of power. According to Riker (1964:5)
“the essential institutions of federalism are a government of the Federation and a set of governments for the member units, in which both kinds of governments rule over the same territory and people and each kind has the authority to make some decisions independently of the other”…
Federalism equals an ideology that combines shared rule with self-rule.
What is decentralization?
There is no standard definition for decentralization. However, it is generally understood that decentralization is the process by which functions and decision making authority are transferred from the national government to the sub-national government or from one sub-national government to yet a lower one, depending on the tiers of government established in a particular country. Thus there are various models of decentralization all over the world and in fact every country practices decentralization in one form or the other.
The various models of decentralisation:
There are several models of decentralization which include the following:
(i) Decentralization by deconcentration or by delegation.
Decentralization by deconcentration or by delegation is more or less the same model of decentralization with very slight difference in that deconcentration is a weaker model than that of delegation.
The two (deconcentration or delegation) are the process for the transfer of power or functions to local representatives of the Central Government. The concept is hierarchical in that the Central Government delegates authority for the discharge of specific functions to its staff that are located in the departments situated outside the Headquarters.
The powers do not involve decision making but only the execution of policies already laid down. They can be withdrawn at anytime at the will of the Central Government. The field offices thus implement decisions taken from above as they are, without altering or amending them; they being mere agents of those above.
It could be said that the Sudan was implementing this system of government from the condominium period in 1899 to the period of local autonomy for the Southern Sudan in 1972. During the condominium period decisions used to come from the Governor General in Khartoum to all the other Governors in the nine provinces in the Sudan. Even after independence in 1956, and up to 1972, decisions were being made by the President or Prime Minister in Khartoum for execution by the Governors or commissioners all over the country.
(ii)Devolution
Decentralization by devolution accords the inferior government a semi-autonomous existence and status independent of the Central Government. The features of a devolved government are as follows:
(a) It is autonomous and has corporate status at law, with all the legal incidents flowing there form.
(b) It has budgetary capacity, often accompanied by its own sources of revenue.
(c) It has a wide range of functions to perform (usually contained in a list or schedule).
(d) It can appoint, recruit, train and discipline its own staff, or obtain them on secondment.
(e) It has a decision making body (appointed or elected).
Devolved governments often constitute local autonomous governments as was the case with the Regional Government of Southern Sudan (1972-1983) or quasi-Federal systems as was the case under the Interim Constitution of Southern Sudan, 2005 (ICSS) as well as the Transitional Constitution of 2011. They were not complete federations because the central government used to have considerable control over their affairs of the lower levels of government and could intervene by making changes through dismissals, appointments and dissolutions.
What is confederation?
Decentralization can also be by way of confederation. Confederation is the union of independent states whereby the legislative and administrative authority of the Central Government is subordinate to that of the confederal states. The European Union is a typical example of a confederation.
We have never practiced a confederal system of administration so far. It might happen if the North and South would like to come together once again in some form of a loose union.
What is unitary government with decentralized system of administration?
One other type of decentralization is the unitary government with a devolved system of administration such as the one in Uganda. This model of decentralization is where the Central Government is legislatively supreme while the district governments for that matter are subordinate. There are only two levels of government here.
One could say that Uganda is a small country with weak economy and might be better suited for this system of government.
Why Federalism for South Sudan?
The case for federalism rests on several factors as argued before and including the following:
(i) democracy;
(ii) good governance (effectiveness, responsiveness, accountability);
(iii) conflict management (gives each group autonomy to promote its own interests and values, it avoids tyranny of the majority, and permits country wide majority to rule on common issues, with local majorities to rule on issues closer to own interest).
(iv) Federalism Promotes accommodation in divided societies. In the sense that Federalism as a political idea has become increasingly important as a way of peacefully reconciling unity and diversity within political systems.
(v) Diversity based on language, religion, ethnicity, nationality, culture and race (not gender, class, states, occupation etc.).
Unity can be grounded in diversity and diversity can give rise to unity; there is no necessary contradiction between unity and diversity.
There is need to build dynamic, efficient and modern state (e.g. India, USA). In such context, federal solutions have been an increasingly wide spread appeal because:
(a) they enable shared governance in a large political unit for certain common purposes; and
(b) They provide autonomous self-governance for the various diverse groups in smaller constituent units of government directly and democratically responsible for their own electorates.
What are the advantages of Federalism over decentralization?
Decentralized or federal governments have very many characteristics in common such two orders of government, written constitutions with allocation of powers, bicameral legislatures etc. however, the key important differences are as follows:
1. A Federation has a written constitution some parts of which cannot be amended by the Federal Government alone. Major amendments affecting the constituent units require substantial consent from them as well as from the Central government. Constitutions of decentralized government can easily be amended at the will of the central government. Thus the constitution can be very flexible and subject to abuse.
2. A federal constitution formally allocates legislative and fiscal powers to the two orders of government ensuring some genuine autonomy for each other. There is no genuine autonomy in decentralized government. The central government can interfere at any time in the affairs of the lower governments.
3. Usually some special arrangements, notably the Upper houses are found in federations for the representation of constituent units in key central institutions to provide for regional input in central decision making. The prevalence of such upper houses in federations is associated with the idea that both the population and the constituent units are part of what makes a federation and both dimensions need to be reflected in central institutions. Decentralized governments are not often characterized by having upper houses.
4. In a federation, there at least two orders of government, one for the whole country and the other for the regions or states. Each government has a direct electoral relationship with its citizens. A decentralized government can have only one level of government which is the only one related to the citizens.
Formation of Federations:
Some important combination of factors (or historical forces) leads to the adoption or creation of federations such as” pressure for political integration or regional autonomy”. However, the political leaders must choose what form of federation their country must form as a way of realizing and reconciling various goals. There are three possible forms:
(i) For U.S.A., Switzerland and Australia the pressure was for separate units to come together (that is to aggregate) which could also be referred to as political integration.
(ii) For Belgium, Germany, Nigeria and Spain the pressure was for previous unitary governments to become autonomous (through devolution of powers).
(iii) For Canada and India it was a combination of the two pressures (to aggregate and to devolve).
In the case of the Republic of South Sudan the pressure is from the various ethnic groups especially the minority groups to become autonomous e.g. the Murle, Anyuak, Kechipo, ie, Moru, wira and the Fertit of Baher El Ghazal.
Characteristics:
The names of the lower levels of governments in the various Federations vary from one country to another and the numbers of the constituent units are not fixed. As shown below they vary from country to country depending n the local circumstances in that particular country.
Constituent units
The constituent units in federations bear different names all over the world:
(i) They are called “States” in Australia, Belau, Brazil, Ethiopia, India, Malaysia, Mexico, Macronasia, Nigeria, U.S.A. and Venezuela.
(ii) They are called “provinces” in Argentina, Canada, Pakistan and South Africa.
(iii) They are called “Cantons” in Switzerland.
(iv) They are called “Autonomous Communities” in Spain.
(v) They are called “regions, Communities” in Belgium.
(vi) They are called “Subjects” in Russia.
(vii) They are called “Island” in Comoros, St. Kitts and Nevis.
(viii) They are called “emirates” in United Arab Emirates.
(ix) They are called “Entities” in Bosnia & Herzegovina.
Number of constituent units.
As stated earlier the number of constituent units also differs from one country to another. Some Examples are quoted below:
Country Number of units Population
India 28 1,028.6 Million
Ethiopia 9 67.3 million
Switzerland 26 9.0 million
Canada 4 30.0 million
U.S.A. 50 281.4 Million
Germany 16 82.4 million
Furthermore the sizes and populations of the various units in some federations are demonstrated below:
Size and wealth of constituent units.
Size Population
Largest are:
(i) Utter Pradesh
In India 166 million
(ii) Punjab in Pakistan 80 million
(iii)California in U.S.A. 34 million
Smallest are:
(i) Belau 200 inhabitants
(ii) Kosrue in Macronesia
(iii) Neviss in St. Kitts & Nevis 8,000 people
(iv) Appenzell in Switzerland 15,000 people.
Reasons for failure of federations:
Earlier federations have failed for several reasons which include:
1. Little experience of democracy.
2. Little history as shared country.
3. Weak sense of common identity.
4. Extreme imbalance of constituent units.
5. Fatally weak central governments i.e. regional or local identities were stronger than any larger national identity and were seen as inconsistent with or opposed to such an identity (e.g. Singapore leaving Malaysia
Conclusion.
We have failed under both unitary and decentralized governments in Sudan or South Sudan. We are only left with two other forms of government to try which are federation and confederation. Our people including our leaders must choose one of the remaining two.
The nearest option should therefore be federation. As stated before we had experienced successful period of democracy during the Regional Government (1972-1983). We have long history of a shared country (Southern Sudan) and a sense of common identity (South Sudanese).
Failure is most unlikely under good leadership.
Hon. Dr. Richard K. Mulla
MP (independent)
National Legislative Assembly
Juba.