Observation and Recommendations
on South Sudan Draft Transitional Constitution (2011)
By Dr. James Okuk
A few days back, a
debate ensued between my and some concerned Southern Sudanese political
activists about the draft transitional constitution of the Republic of South
Sudan. Some of the activists stated that the draft should be rejected even
before it could be seen. Others said that it would not be fair to tell the
drafters to soak their work in water and drink the taste of its water before
seeing and studying what they have jot down to be called constitution of the
new Republic. On my side, I thought it fair to hold on before rushing in
giving crosses or roses to the drafters. Gratefully enough, a concerned
savvy citizen of South sent me the draft of the transitional constitution on
the same day it was handed to the President of the Government of Southern
Sudan (GOSS). I promised him to study the draft and make my detailed
observation and recommendations.
Having studied the
draft constitution critically, the uncomfortable overall observation I have
is that the ideas jot down in many of its articles by the Sudan Peoples
Liberation Movement (SPLM) Party showed no difference from the bad ideas of
the National Congress Party (NCP) of the Sudan. It almost looked like cut
and paste of the NCPs attitude from the Sudan to become SPLMs attitude in
South Sudan. But it is really shameful for a Liberation Movement in the
caliber of SPLM whose leaders have been pretending as liberation strugglers
for decades, against injustice and marginalization, to come up with a draft
constitution that promotes one-party states injustice and dictatorship with
lifetime SPLM President in the name of transition with eleven years of
guerilla power self-rewards (2005 - 2016) as usual. For heaven sake what
transitional period is this? God have mercy and save us! Any attempt to
justify the vices expressed in the draft constitution under pretext of
transitional period when there is, in fact, no transition, is totally weird.
still hope something can be rescued from abyss of the draft constitution if
the SPLM leaders become capable of listening to the voices of wisdom. Below
are some of the rescue prescriptions from my sincere opinion.
1. ON THE TITLE AND PREAMBLE:
The use of the term
Transitional is contradictory to the reality expressed in
the very draft constitution that from 9th July 2011, South Sudan is going to
be declared as a republic. So, what transition is the draft constitution
talking about when there will not be any transition of the new state to
something else by then? Will South Sudan after its declaration as an
independent country with international recognition be regarded as
The right terminology
to use could be: The Interim Constitution of the
Republic of South Sudan (2011). This terminology will give
you a clear picture that there is something permanent coming for South Sudan
(Its Land, People, Government and Sovereignty) in totality after 9th July
Also in paragraph six of the Preamble there is need to add Environmental
Sustainability for the paragraph to read: Determined to lay the
foundation for a united, peaceful and prosperous society based on justice,
equality, respect for human rights and the rule of law, and
Further, the concluding
paragraph of the Preamble which reads: Do hereby, through
this Southern Sudan Legislative Assembly, amend the Interim Constitution of
Southern Sudan, 2005, which shall be adopted and hereafter referred to as
the Transitional Constitution of the Republic of South Sudan, 2011, and
shall be the supreme law by which the independent and
sovereign South Sudan shall be governed during the Transitional Period, and
undertake to abide by, respect and defend it.
This need to be revised
to remove the transitional terminology and use interim one, instead.
Even giving Southern Sudan Legislative Assembly (SSLA) power to adopt The
Interim Constitution of South Sudan (2011) is a mismatch of
authoritative levels of the current government. The SSLA is a
sub-parliament of one of the levels of the Sudan Government. Since South
Sudan decided to secede from the Sudan, it does not make sense to give the
Sudan power (at whatever level) to promulgate a constitution for the new
Independent Republic. There should be total delinking if South Sudan wants
to look Sovereign. Not only this, but does it make sense to tell someone to
be his/her own judge, especially in issues that involve power loss or gain?
The SSLA members will be in total consensus to give themselves more years of
transition, to use the contradictory terminology. They can only adopt the
draft constitution if it allows them to be in charge of law-making in South
Sudan for a longer period not less than five years (up to 2016). But this
shall not be fair at all for the people of South Sudan.
The SSLA is supposed to
be dissolved before 9th July 2011. If some of its members are lucky to come
back as members of new South Sudan National (Federal) Legislative Assembly
(from both the House of Deputies and Council of States) appointed ad interim
by South Sudan Presidential Decree in accordance with South Sudanese
political parties representation quotas, then it could be the right time to
give them the power to adopt the draft interim constitution of the Republic.
Thus, I recommend that
the draft Interim Constitution of the Republic of
South Sudan (2011) should not be taken to SSLA at all. It should be
legitimized by South Sudan Political Parties Leadership Forum only unless
agreed thereafter to take it to the appointed South Sudan Federal
Legislative Assembly for further legitimization.
2. ON PART ONE:
Definition of South
Sudan is not satisfactory. Referring to Article 1(2),
it is not yet known whether Abyei Area should belong to the Sudan or South
Sudan because the referendum for its self-determination has not yet taken
place to come up with the final verdict. Even the International Court of
Arbitration did not rule whether Abyei Area should belong to the Sudan or
South Sudan. It only defined the borders of Abyei Area without giving a
verdict whether these borders belong to the Sudan or South Sudan.
Therefore, Abyei Area
should be left out in the Interim Constitution of
the Republic of South Sudan (2011), until its status becomes
definite to be belonging to South Sudan, perhaps, in future.
Also referring to
Article 1(3), there is no need to mention the countries that
have borders with South Sudan because this is obvious. Who knows, even some
of these countries may change their names, and this will waste South Sudan
time again to amend the constitution in order to adopt the new names. This
Article should be deleted.
To appreciate the value of the mixture of presidential and
parliamentary system of governance in South Sudan, Part One of the draft
Interim Constitution should defined South Sudan as a Republic whose Ten
States co-exist in an Indissolvable Union represented by Federal Government
that is empowered with sovereignty in the territorial borders drawn by the
British and left intact on January 1, 1956, as well as in external
representations and regional blocs and/or alliances. It should also define
South Sudan as a democracy whose government powers emanate from the people
who elect periodically the Federal President of the Republic, Members of the
Federal Parliament, States Governors, Members of States Parliaments,
Counties Commissioners and Members of Counties Councils in accordance with
promulgated constitutional provisions. Further, it should define South Sudan
as a democratic republic whose Prime Minister is elected by Members of the
Federal Parliament to manage the institutions of the Government through
Ministers and other Executive authorities in consultation and coordination
with the President of the Republic and the Vice-President.
1(5) should add Environmental Sustainability so that it reads: South
Sudan is founded on justice, equality, respect for human dignity and
advancement of human rights and fundamental freedoms, and
Article 6(2), I think there is need to be realistic by
adding that Arabic Language should not be ignored in
public communication in South Sudan since it is the most crosscutting
practical language in all parts of South Sudan.
Article 8(1) is contradictory to Article 8(2) because
either you say religion is separated from the state totally or you say it is
connected to it. If you say religion should be separated from the state,
then there is no need to request equal treatment by the very state to all
religions. But if you chose to treat all religions in South Sudan Equally,
then you should admit that religion is not separated from the state. In my
opinion, Article 8(2) is sufficient since taking oath of
offices end up in South Sudan using Religious Books. Thus,
Article 8(1) should be deleted.
3. ON PART THREE:
On Economic Objectives,
there should be an addition of Article 37(4) to read:
Promotion of Citizens Basic Income sufficient to
meet each persons vital needs as a right to participate in the wealth of
the community, the state and the nation so as to raise everyones level of
dignity, freedom and opportunities in South Sudan. Also there
should be Sub-article 39(5) added to read:
Protect girls from under-eighteen years marriages as well as
prevent by law forced marriages and other sexual abuses across.
Foreign Policy there should be an addition of term partnership to
Article 43(a) to read: promotion
of international cooperation and partnership, specially within the United
Nations family, African Union and other international and regional
organizations, for the purposes of consolidating universal peace and
security, respect for international law, treaty obligations and fostering a
just world economic order; Also partnership should be added to
Article 43(f) to read: enhancement of economic
cooperation and partnership among countries of the region;. Further,
human trafficking and slavery should be added to Article
43(h) to read: combating international and
trans-national organized crime, piracy, terrorism, human trafficking and
4. ON PART FOUR:
53(1)(f) should be adjusted to read: ensuring
the protection of the natural environment and heritages sites in South
Sudan. Environmental sustainability has become a critical issue of
globalization era, especially in exploitation of natural resources with
avoidance of pollution by use of renewable energy.
5. ON PART FIVE:
The Bicameralism is
already state of union amongst the states of South Sudan and it is under the
category of National Legislature as provided in
Article 54(1). If you sub-divide this then you have to find a name
for each. The name of the Council of States is in
place but the National Legislative Assembly is not, because
it still refers to the overall duty of the Bicameralism. I suggest that it
is named House of Deputies so that the article reads:
There shall be established a National Legislature
composed of the following: 1) The House of Deputies; 1) The Council of
69(1) provide for two deputies for National Legislative Assembly? Why go
for this. One Deputy Speaker is enough.
Also there is no need
to bring in the issue of elections or by-elections for the interim
Legislative Assembly with its Bicameralism since its members shall only be
appointed by allocation of percentages for political parties of the Republic
of South Sudan similar with what was done in the mid-term era of the CPA
before the elections in 2010: 40% for the SPLM and
60% for other South Sudan political parties
to divide amongst themselves. The vacancies should be filled by the very
appointment criteria that constituted the interim Bicameral Legislative
Assembly in the first place.
66, the term of the appointed interim National Legislature with its
Bicameralism of the House of Deputies and the Council of States should be
two years only, and not four years. The number of the
members of House of Deputies should be three hundred (300)
and the Council of States should be fifty (5
* 10 = 50) so that the total number of the MPs of South Sudan Legislative
Assembly is 350.
should be adjusted to remove the belittling word of Minority
Leaders. This looks like disrespect to the needed spirit of multi-partism
and democratic opposition leadership in the South Sudan Legislative
Assembly. The right and polite term to use is Opposition Leader.
The Opposition Leader should rank third in the
protocol of the country. There is no way un-elected Vice-President
could be senior to the Opposition Leader in an honest multi-party State.
Article 94(1) should be deleted to avoid giving power of adopting the
Interim Constitution of the Republic of South Sudan (2011) to a
sub-parliament that does not represent the new country. It shall be
contradictory to have a National Legislature, part of its members claim to
be elected and others appointed by Presidential Decree. The best way is to
appoint all the members of House of Deputies as well as the Council of
States by Presidential Decree so that they could fill the National
Legislature seats equally, and with certain percentages allocated to South
Sudan Political parties (60%), including the Sudan Peoples
Liberation Movement (SPLM) party (40%).
There should be an Article providing: The Prime
Minister may request to address the House of Deputies or the Council of
States. The concerned Bicameral level shall provide an opportunity for
hearing such address as promptly as possible.
83(1) should be adjusted to read: The President
or the Council of Ministers may cause a bill to be presented by the Prime
Minister before the House of Deputies or the Council of States subject to
their respective competences.
The Interim Provisions
under Article 94 should be adjusted to read:
(1) The South Sudan Political Parties Leadership Forum shall
adopt and pass the Interim Constitution of the Republic of South Sudan
(2011). (2) The South Sudan Political Parties Leadership Forum shall
determine the sharing of specific quotas of South Sudan political parties
representation in the National Legislative Assembly (both in the House of
Deputies and Council of States) prior to Presidential Decree constituting
ON PART SIX:
should be adjusted to read: There shall be
established in the Republic of South Sudan a National Executive consisting
of the President, the Vice-President, the Prime Minister and Ministers.
95(1) should be adjusted to read: The President
of the Republic of South Sudan is the head of State, the Commander-in-Chief
of the South Sudan Armed Forces. He or she represents the will of the
people, and shall exercise the powers vested in the office of the President
by this Constitution. Also by birth
should be removed from Article 98(a) so that it reads: be
a South Sudanese. Also Article 98(e)
should be adjusted to read: not have been
convicted of an offence involving honesty or moral turpitude at least five
years before assuming the office.
should be adjusted to read: The tenure of the
office of the President of the Republic of South Sudan shall be two years,
commencing from July 9, 2011.
should add to its sub-provisions of the function of the President to read:
appoint interim members of the National Legislature
(both the House of Deputies and the Council of States).
Article 102 (2) should be adjusted to read:
If the office of the President of the Republic falls vacant
prior to the conduct of the general elections, the Vice-President shall
become the President upon taking the oath of office and then appoint a
Vice-President hailing from a different political party.
should be deleted because there is no need of Presidential Advisors as the
duty could be done by Ministers in their subsequent areas.
An article on Prime
Minister should be added after the article providing for the Vice-President
to read: The Prime Minister shall: (1) coordinate
the functioning of the Ministries in accordance with broad guidelines set
by the President of the Republic and ensures the implementation of laws; (2)
formulate the Government programme in consultation with other members of the
Council of Ministers; (3) present the Government programme to the National
Legislative Assembly within thirty days of assuming office; (4) issue
decrees on promotions, transfers and internal secondments of senior state
officials in accordance with the law ; (5) issue decrees to terminate
service or cancel jobs in accordance with the law; (6) create a
limited number of positions in a way that does not affect the approved
organizational structures of the ministries and units falling under each
ministry; (7) approve the travel of all the official delegations in
their duties outside the country; (8) approve the hosting by the state
organs of regional conferences in the country; (9)Acts as the President in
the absence of both the President and the Vice President; and (10) any other
duty or function delegated to him/her by the President or the Council of
Article on Oath of the Prime Minister should be added to read:
I&&&.&&&&., do hereby swear by the Almighty God/ solemnly affirm, that as
the Prime Minister of the Government of the Republic of South Sudan, I shall
be faithful and bear true allegiance to the Republic and shall diligently
and honestly discharge my duties and responsibilities in a consultative
manner to foster the development and welfare of the people of South Sudan;
that I shall obey, preserve and defend the Constitution and abide by the
law; and that I shall protect and promote the unity of the people of South
Sudan and consolidate the democratic decentralized system of government and
preserve the integrity and dignity of the people of South Sudan; so help me
Article 109(2) should be adjusted to read: The
National Council of Ministers shall compose of the President, the Vice
President, the Prime Minister and Ministers. Also
Article 110 (3) should be adjusted read: Membership
of the National Council of Ministers shall not be combined with membership
of National Legislature, States Executive or Legislature.
The Oath of Office for a Minister Should Read:
I&&&.&&&&., do hereby swear by the Almighty God/solemnly affirm/, that as a
Federal Minister, I shall be faithful and bear true faith and allegiance to
South Sudan and shall diligently and honestly discharge my duties and
responsibilities and strive to foster the development and welfare of its
people; that I shall obey, preserve and defend the Constitution and abide by
the law; and that I shall protect and promote the unity of the people of
South Sudan and consolidate the democratic decentralized system of
government and preserve the integrity and dignity of the people of South
Sudan; so help me God.
Article 118 regarding the Deputy Ministers should be
deleted. The function could be played Undersecretaries of the Federal
Ministries. Also Article 120 should be adjusted to delete
anything about Deputy Ministers in its provisions. Further,
Articles 121(2) & 122 should be revised to delete parts
that provide for Presidential Advisors and Deputy Ministers and it should
add Prime Minister after the Vice-President as well as
7. ON PART NINE:
144(1)(b) about Anti-Corruption Commission should be adjusted to read:
investigate cases of corruption involving public
property and public interest; and it shall submit such evidences to
competent criminal courts for prosecution. This is to avoid making
this Commission look like a department of the Ministry of Justice rather
than an independent body with power to take to courts corruption criminals.
The South Sudan Ministry of Justice should not be given power to have
control over the work of the Anti-Corruption Commission.
should be deleted because the work of the HIV/AIDS Commission could be done
by a department in the Ministry of Health and Medicine.
8. ON PART TEN:
(1) should be deleted as what it says has already been provided in
(2). After July 9, 2011, the name of the Sudan Peoples
Liberation Army should already have been changed into South Sudan Armed
Forces to stand as the National Army.
9. ON PART ELEVEN:
162(6) should be deleted as there shall not be need of elections during
the interim period. Also Article 163(1) should be adjusted to read:
The state legislatures shall be known as state
Legislative Assemblies. They shall comprise of the appointed members
by the Governors of the States after approval by the President of the
Republic. Article 163(4)(c) should be deleted
because there shall not be need of elections during he interim period.
Further, Article 163(5) should be adjusted to read:
The term of a state Legislative Assembly shall be
two years commencing from July 9, 2011. Again, Article
163(1) should be adjusted to read: There shall
be a state executive composed of a Governor, a Deputy Governor, State
Secretaries and County Commissioners.
10. ON PART TWELVE:
should be deleted and functions assigned to National Petroleum and Gas
Council be given to the Ministry in Charge of Petroleum and Gas.
Also Article 175 regarding National Petroleum and Gas Corporation
should be deleted because it shall be doing duplicate work that is
supposed to be done by the Ministry in charge.
Also there should be
constitutional provision empowering the same Ministry in charge to develop
Biofuels sector and blend it with oil products according to certain
percentages deemed fit to international standards of renewable energy.
regarding Central Bank of South Sudan should be adjusted to read: One Deputy
Governor, members and;.
11. ON PART FOURTEEN:
192 the term Transitional should be replaced with Interim. Also
Article 195(3)(b) should be adjusted to read:
organize and conduct general elections
by the end of 2013 with by-elections as well as local elections in
accordance with this Constitution and the law;.
12. ON PART SIXTEEN:
199(1)(b) should be adjusted to read: assent to
and sign into law the amended Interim Constitution of Southern Sudan (2005),
after its adoption by the South Sudan Political Parties Leadership Forum,
which shall thereafter be known as the Interim Constitution of the Republic
of South Sudan (2011). Also in Article 200(1) and (3) the term
transitional should be replaced with interim.
Schedule (F) should be added to read: The South
Sudan Federal Ministries in addition to offices of the President, the
Vice-President and the Prime Minister should be:
Ministry of Presidential Affairs. Ministry of
Foreign Affairs and International Co-operation. Ministry of Justice
Ministry of Defence. Ministry of Interior. Ministry of Information
Ministry of Finance and National Economy.
Ministry of Energy and Mining. Ministry of Agriculture and Animal
Resources. Ministry of Water Resource and Irrigation. Ministry of
Industry, Technology and Engineering. Ministry of Investment and
Ministry of Higher Education and Scientific
Research. Ministry of Health and Medicine. Ministry of General
Education and Vocational Training Ministry of Labour and Public
Service. Ministry of Land, Survey and Housing. Ministry of
Transport, Roads and Bridges.
Ministry of Peace and Reconciliation. Ministry
of Environment Wildlife and Forestry. Ministry of Humanitarian
Affairs, Gender Equality, and Social Welfare. Ministry of
Cooperatives and Community Development. Ministry of Culture,
Heritage and Tourism. Ministry of Sports, Recreation and Youth.
Dr. James Okuk is a South Sudanese with PhD in the Area of Political
Philosophy from University of Nairobi. He can be reached at