Opening the debate on future constitution of South Sudan

Category: Writing aboard the Kenya Airways: A story on coming to Rwanda for the first time
Published on Sunday, 19 December 2010 23:40
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adiok1(Maryland, USA) - As South Sudanese are gearing towards the end of the current phase of political struggle through self-determination referendum, I wish to open up a public and literary debate on our future constitution.  2011 is time we had waited for since 1983. Since referendum reflects two views, secession or unity, some comrades may argue me to wait and see what happens on January 9, 2011. However, it is not a crime to get excited too earlier and start counting our future eggs and ills before it is too late. I think that since unity did us so much disservice in the past, we should try disunity. And when our country gets disunited, the new State will definitely need a new constitution. First let me assert that we must be lucky to get independence in 2011, a time when we have seen much from those African countries which got their freedom through the same process before us. The future constitution of South Sudan must be strategic to avoid exploitation, vicious circle of what we are leaving behind with the north. The constitution should have the clarity in print outlining and outlawing the possibility of plunging the people of South Sudan into neo-authoritarianism in a new nation.

 Constitution writers must be set to observe minute details of goal-driven and flawless clauses on power decentralization among three branches of the government: executive, legislature, and judiciary. This observation must include strategic wording of democracy to avoid ambiguity, a window always used by political bigots to exploit masses.  It must be noted that putting this document together is very easy but once some people find loopholes to build their lives around the wording of the constitution, ambiguity of small details of the constitution can be used to exploit the system by the smartest guys. Then it becomes too difficult to change even a bit of anything to it because the influential guys on the receiving side will always make it too complicated if not difficult to move an inch when there is a need to do so. These are the key thoughts which should be borne into due and serious consideration right now before an independent South Sudan begins drafting a new constitution. 

A friend shared a summary of this document onto a website for the public to have a taste of the debate. On that note, interesting arguments came up. Some of these comments were quite more brilliant and I want to incorporate them here:   “Maybe, too much decentralization is not so much a blessing. Don't get me wrong, I am for stripping the federal government of most powers that relate not to defense and all, but there has to be built into the new constitution some mechanisms that will keep the state legislative assemblies in check (Bior Jr).” This is very much in line with the objective of this article. I want to open up dialogue on the constitution because laws of a land are the political backdrop of a sustainable peace, economy, and social fabric. When a people of a land get involved actively and rationally to shape the future of their standing laws, no windows are left for skewed individual interest often seen to obscure logic of societal wellbeing. We have seen this in other countries and Eritrea is the latest example we must not become in many ways.  

The following excerpt from reporters without borders and Wikipedia might be considered political smear if seen from a different point of view. However, the truth being that there is no smoke without fire. “Eritrea has not held any elections since independence and remains a one-party state (Wikipedia). Do we need to be a one party state? No way! “The government (of Eritrea) has banned all private media, and according to Reporters without Borders, imprisons more journalists than any other nation in the world” (reporters without borders). The threat against media and freedom of self-expression from political dissidents in a united Sudan must not be transferred to an independent South Sudan if secession is the direction the South prefers to take. “The Eritrean constitution was ratified in 1997 by a constituent assembly.” Santino Mabek Dau puts it clearly well that three years is needed to write the South’s new constitution. I agree with him 100% because waiting can always be a blessing in terms of political growth needed much in South Sudan. Waiting also takes into account the fact that time changes ideas and open up new possibilities and new mindsets.  “In May 2002 all Christian denominations apart from the Catholic, Orthodox and Evangelical Lutheran churches were ordered to close their churches and hundreds of Christians have been arrested” (Wikipedia). We saw this happening in Western Equatoria a few weeks ago when the Governor there banned religious activities of Jehovah Witness.  Banning religious activities no matter how naïve they may seem to us is no different from imposing sharia law in a united Sudan under which women become objects of flogging and polygamy; mere baby factories and for rent objects of sex. These are some of the good reasons why the dialogue on new constitution of South Sudan must open up to public scrutiny right now before a few individuals put something together overnight and call it supreme law of the land.   

If the South of the Sudan secedes during the upcoming referendum to form the newest political boundaries of the world, it is vital that its constitution be written on the basis of the 21st century democracy. This constitution must be based on the premises of power decentralization. The presidency must not bear too much power to overshadow other branches of the government. Given the timing of South Sudan’s independence in the eras of internet and abundance of information technology, it is imperative that the South understands a government which gives disproportional powers to the President risks dictatorship. Such presidents are tempted to run the country on personal egos and may dismiss from or appoint persons of their own interest any time into powerful political positions. A government of this sort, typical of many African countries, will always have elections and important decision-making process be driven by intimidations, rent-seeking, and frauds.  The cabinet members and senior staff of the civil service sector will always skew their powers towards pleasing the most powerful man/woman or boss in order to maintain their employment. This happens a lot where there is no job protection mechanism put in place. The new constitution must take note of the above aforementioned facts or else we will end up with renegade generals in our bushes like Ugandans with their Joseph Konyi and Congolese with their Laurent Nkunda.

 Since a constitution, which is well written, provides a framework of a country’s durable peace, economy, and robust democracy, clauses that define rights of self-expression must be specific and to the point to guarantee job protection to citizens who may differ with the powerful.  Since the root causes of civil wars in Sudan center on ambiguous constitution of a united country based on biases to favor the wealthier Arab minorities, we must do a better job this time by being more vigilant in writing our own constitution. The new constitution must not give a leeway for totalitarianism now or in the future in South Sudan. The constitution should outline the terms limits of the sitting president.  Clauses which define and differentiate between military and civilian governments must be put in place to overcome future ambiguity which can be used by military generals to seize power at gunpoint. In my own opinion, I suppose our governments must always be run by civilian authorities. If everyone agrees with me, then the new constitution must define and limit roles of military generals to in-barracks only. This will restrict guns to protecting citizens and national interest rather than individuals’.  It is very important that the laws therein be aligned to standing the test of time in order to protect the future generations from going back to wars.

By decentralization of powers, I mean documenting laws that will protect check and balance of power in the government. The new constitution of South Sudan must make it difficult for the President to employ and dismiss leaders of the civil service hierarchy at his/her own will without enough support of parliament and judiciary. In the 21st century democracy, nobody must be above the law up to and including the President, the Supreme Court judges, and members of legislative assembly. All constitution post holders such as members of the legislative assembly, members of the judiciary branch, and members of the executive body must be accountable to the civil population they lead. This will remove impunity from executives at the states or federal levels. 

The new constitution of South Sudan must make it illegal for a President to stay in power permanently. The presidency must be made to rotate among capable citizens in order to avoid dictatorship and exploitation of the people by one man/woman, one section, one tribe, and one clan. A term limit must be set and defined unambiguously after which it will be considered illegal for the incumbent President to run for re-election once he served, however best, for a number of years. The law should set stringent standards of qualifications for members of parliament so that constituents can only send productive MPs to the assembly rather than filling the state house with mere takers.

The same principle must apply to States’ governments and counties’. There must be no permanent governors and commissioners. The same or a different time limit must also be set for these later constitutional holders. Believe me or not, a constitution like or close to the one I have defined here will create an inclusive and a just society the world has ever had. We must create the type of constitution that reflects our tribal diversity. The new constitution must define remunerations of constitutional post holders. This will lessen violence during elections like what happened in the Kenyan 2007 general elections. Paying constitutional post holders at an exorbitant price must consider three factors: 1) it is the tax payers and civil servants who will buckle under the weight of high salaries of parliamentarians. 2) Parliament will be a battleground in which everyone would want to get in because that is where the money is. Failure to consider this point number two will always cause tribal and sectarian chaos and violence among members of common geographical setting who will always tend to compete for a seat in parliament not because of what they can do in parliament but because of what they can get from it. 3) The local market. Salaries of MPs and executives should be set in consideration with the local market.

The mistake Kenya made on their old constitution by paying exorbitant salaries to their members of parliament cost their country a portion of their economy and hundreds of lives in 2007 when violent erupted between Raila Odinga and Mwai Kibaki. The Kikuyus wanted to keep their Kibaki in power while the Luos wanted a change which favored their own Odinga. An African MP getting paid more than a member of United States Congressman (which is the case in Kenya) is an example of unreasonable salary scaling that has caused dwarfed economies of the third world countries. Everybody will always want to get into parliament or die trying just to get a piece of cake rather than doing some good for the country. Again, given our independence during information ages, we must learn from the mistakes other countries made before us from the onsets of their independence.  There is a saying which goes, “a wise person learns from his/her own mistakes and a wiser person learns from the mistakes of others.  I am not saying that South Sudanese are wiser than Kenyans. I am rather suggesting there is a lot to learn from our neighbors who have been through ups and downs because of constitutional loopholes written in time when few were accessible to information system of important national matters.

The new constitution of South Sudan should emphasize privatization of government investment in order to induce healthy local economic competition. Privatization will serve as a tool to limit the authority of the government and executives over national treasures. This will also improve quality of services in the business community and civil sector. In conclusion, the ultimate result will always be quality of lives for the citizens. A clear constitution will hold us together as a nation and a people of different tribal background bound together by a common civil interest. The last baby born in a family of 52 children must not struggle too much to learn new ways of the world. The analogy refers to a new nation in the name of South Sudan being born as the 53rd country of the African continent. This means we may not have to create anything new since our other brothers and sisters from the East African Block who went through the same paths know where the holes of ills are located. South Sudan citizens should study all the mistakes made by other African countries which gained independence before them and adopt good legacies which make them viable states and avoid holes which slow down and weaken their progress.

The writer is a teacher in the United States and also a regular contributor to The New Sudan Vision. For questions and concerns, contact him at This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it.