The Dilemma of Ethics in the Practice and Exercise of Constitutional Democracy and Human Rights in the Republic of South Sudan

By James Barnaba.

A Scholar of the Practice in International Development Management and Social Policy.

UN Secretary General Ban Ki-moon (L) walks with South Sudan's President Salva Kiir (R) in Juba during his attempt to push for ceasefire between the two warring parties (Photo: file)

UN Secretary General Ban Ki-moon (L) walks with South Sudan’s President Salva Kiir (R) in Juba during his attempt to push for ceasefire between the two warring parties (Photo: file)

Introduction

Oct 20, 2014(Nyamilepedia) — This paper attempts to offer some analysis of the dilemma of ethics in the practice and exercise of constitutional democracy and human rights in the republic of South Sudan. The dilemma of ethics in the practice and exercise of constitutional democracy and human rights is a real challenge in the context of South Sudan where the government and the citizens are seen as two separate societal institutions with limited recognition by government that the people are sovereign. The paper will raise questions on how ethics is practiced and exercised in constitutional democracy and human rights. The paper argues from John Rawls two principles on the new theory of Justice. John Rawls principles are 1. Set of liberty and access to the liberties 2. Fair equality of opportunities. Along these two principles a specific analysis will also be made focusing on Rawl’s sub-principles of wealth, social good, mobility, bases of self-respect, and power. This paper will assess whether the exercise of constitutional democracy have provided capabilities for wealth, social good, mobility, bases of self-respect, and power.

Constitutional democracy is known to refer to the authority of the majority as limited by legal and institutional means so that the rights of individuals and minorities are respected. This is the form of democracy practiced in Germany, Israel, Japan, the United States, and other countries. Center for Civic Education (2014) Constitutional democracy takes such characteristics as government of, by, and for the people. It is government of a community in which all citizens, rather than favored individuals or groups, have the right and opportunity to participate. In a democracy, the people are sovereign. The people are the ultimate source of authority. The powers of government are limited by law and a written or unwritten constitution which those in power obey. In South Sudan the Constitutional democracy is rooted in its Interim Constitution of 2011 as a modern and largely progressive basic law upon which to build the new state. It incorporates a Bill of Rights, requires the government to promote democratic principles and political pluralism, and establishes the principles of decentralization and devolution of power to improve development and end poverty. Democracy Reporting International (2011). It also provides for an independent judiciary and a range of state commissions that could, in the future, serve as an institutional check against any abuse of state power.

Ethics enhance the practice of governance to consider fundamental values of constitutional democracy which reflects the paramount concern of human dignity and the worth and value of each individual. Center for Civic Education (2014). Ethics also motivates the proper protection and promotion by government of basic and fundamental rights such as right to life, right to liberty, economic and social rights and right to property. Ethical conduct by governing politicians involves more than respect for the law and adherence to rules governing conflicts of interest. Colin (2006), it displays fidelity to a democratic ethos.

The Dilemma of Ethics in the Practice and Exercise of Constitutional Democracy and Human Rights

It had come to my attention that a young nation like Republic of South Sudan should be made aware about the philosophy of ethics in driving constitutional democracy and that ethics should influence it so that democratic governance is possible to bring about protection and promotion of human rights and state development. If constitutional democracy brings about government in which power and civic responsibility are exercised by all citizens, directly or through their freely elected representatives then its practice and exercise need to be done in an ethical manner where elected representatives morally opening up a space for freedom that makes South Sudan a free nation.

A profound meaning of ethics is supposed to help humanity to understand how leaders and citizens practices and exercise constitutional democracy and human rights as the case may be in in the Republic of South Sudan. Antonakis, Cianciolo, & Sternberg, (2004, p.302) The exercises of rights such as freedom from arbitrary arrest, detention and torture whether one is an opponent of the ruling political party, an ethnic minority, or even a common criminal, is a basic human right. Political party members who compete for political position should be given fair and equality of opportunity and the practice and exercise of constitutional democracy to be upheld as it promoted human rights.

Increasing awareness and changing societal values have been linked to the public’s interest in ethics management Maesschalck, (2004/5). Accordingly, citizens have become more assertive and demanding toward leaders in the public-sector showing less tolerance for leaders’ mistakes, shortcomings, and structural challenges. The public’s interest does not seem to be prominent in the minds of many leaders in South Sudan where one sees corruption becoming more of a norm. There is the dishonest exploitation of power for private or political gain as nepotism and favoritism by officials including government Ministers often leads to relatives or friends being favored in appointments for jobs in government or ambassadorial functions in diplomatic missions abroad, with no regard to merits and qualifications expected of candidates for filling such roles.

Rawls’ theory provides a framework that ethic is not about corruption and nepotism but it is all about fair equality of opportunities for citizens. Rawls’(1996) Ordinary people of South Sudan feel that they are facing a new oppressor by their own people and they feel that they have no voice in the structure of society and distribution of wealth in South Sudan, they find themselves fearing rule by powerful and wealth elites who do not really care about them but themselves(elite). Jwothab (2011). Hence the dilemma posed by the situation in South Sudan on ethics, challenges my understanding that ethics and governance have often been thought of as mutually-reinforcing concepts which together would combine to limit the practice of corruption and nepotism. That is to say, knowledge and expertise would have to be used with certain standards defining professional ethics such as, for instance, avoiding corruption in the delivery of public services. Otherwise with unfettered culture of nepotism and corruption in government, public service delivery is deprived of an essential precondition of government leaders claim to legitimacy. As Hegel (1967: 191) supremely put it.

The practice and exercise of constitutional democracy and human rights by both elected leaders and the citizenry within the last few years have become very complicated given the evidence of human rights abuses included politically motivated abductions by ethnic groups; harsh prison conditions; arbitrary arrest and detention, including prolonged pretrial detention; and an inefficient and corrupt judiciary. Country Reports on Human Rights Practices for (2011). Further government has restricted freedoms of privacy, speech, press, assembly, and association. These concerns have made the citizens to fear and they could not have the power to demand social good from their government.

Rawls’ theory urges us to conceive of society “as a fair system of cooperation over time, from one generation to the next. He says that “the relationship of citizenship with Government should be within the basic structure of society, a structure we enter only by birth and exit only by death” the ethical theory seems not to capture well with the reality in South Sudan where there are arbitrary or unlawful deprivations of Life leading to extreme poverty and loss of life as reported that more than 17,613 people in South Sudan were killed under the watch of a government supposedly known to be democratic. BNFA (2014). There were several reports that the government or its agents committed arbitrary or unlawful killings. Such actions are not ethical and do not go in line with Rawls argument that promote the greatest sum of happiness by laws and governments.

According to Rawls principle of liberty and access to the liberties means that citizens that lives in a particular states are supposed to enjoy their rights. Governments provide a space for them to be able to create wealth, social good, have mobility and that there must be a base of self-respect for both government and the citizenry. There is also a belief that practice and exercise of constitutional democracy will bring about these value. But under a supposedly a constitutional democracy, there is evidence of thousands of citizens experiencing displacement, with the numbers reported to be 803,200 within South Sudan and 254,000 that fled to neighboring countries. BBC report (March 29, 2014), with recorded increase in the number of abuses and harassment in the country. It is not ethical for citizens to be abused and harassed by their own government when it should be expected to exercise and promote self-respect and human dignity.

The exercise of the bases of self-respect as stated in Rawls principle is that government and the citizen should both have respect to each other as human dignity is a key. Rawls (2001). This principle seems have also been promoted in the South Sudan transitional constitution which recognizes the value of self-respect. However, the exercises of this self-respect by government and security forces are not considered to be adequate by many in the country. Country Reports on Human Rights Practices (2011). The way the government and security forces treat political opponents, journalists, and human rights workers provide a cause for grave concerns. Those that ask the government to promote economic development as a good policy are often seen as the opposition to government and as such they found themselves tortured, beaten, and harassed. If that is the behavior of a government perceived to be democratic then it begs the question of how will the citizen participate in a meaningful development and creation of wealth when conducive conditions do not exist or upheld by government.

Drawing from Rawl’s (1971) idea that there is need for distribution of rights, liberties, opportunities I would agree by suggesting that this is important as all population in South Sudan should have the opportunity to work, earn a living, and support their families. Children deserve special protection because they are the future of the nation and they should receive at least an elementary education, proper nutrition, and healthcare. Maintaining human rights, citizens in any free society need to be vigilant. Citizen responsibility through a variety of participatory activities to ensure that government remains accountable to the people. The family of free nations is committed to work toward protection of human rights.

I would point out that, the practice and exercise of constitutional democracy and human rights in the Republic of South Sudan ethically should translate to a real democratic system, in which the government exists to serve the people but citizens also must agree to abide by the rules and obligation by which they are governed. Democracies grant many freedoms to their citizens including the freedom to dissent and criticize the government. The effort of government should create wealth, social good, mobility, bases of self-respect and power to citizens. In South Sudan this still depended on political and military expediency which often overrides the attempts to establish an effective and functioning civil administration and institutions. In additions Among the basic human rights that any democratic government must protect are freedom of speech and expression; freedom of religion and belief; due process and equal protection under the law; and freedom to organize, speak out, dissent, and participate fully in the public life of their society.

Further in addressing the moral and ethical obligations of public administrators, Moore (1976) states that public-sector obligations arise from three different realms which includes: (1) respecting the processes that legitimate the actions of public officials, (2) serving the public interest, and (3) treating colleagues and subordinates with respect, honesty, and fairness. The practice and exercise of constitutional democracy is supposed to promote peace and security which then makes liberty and access to the liberties enjoyable by the state but when leaders such as the ones in South Sudan do not give peace a chance it could be difficult for citizens to participate in meaningful development, raising the ethical dilemma as to what extent do the public administrators would be tolerated in falling short of their obligations to address and fulfill commitments to serve the public interest and also that ethical argument of Rawls that there is need to promote the greatest sum of happiness by laws, governments and economics.

Pursuit of a personal good life or tribal good life at the expense of others is an invitation to disaster, conflict, crisis and violence by those that have been denied the equitable share of national resources, privileges and obligations. Where emphasis is placed upon personal or group benefits, the society suffers polarized negative perceptions toward each other. Turaki (2002:59). When such morality and Ethics arises among key civil servants that are holding public offices, their focus will not be on building a good nation, such as putting infrastructure, standard health facilities, good schools, electricity and clean water to the citizens, but parochial. Many modern Africans, educated in Western arts and sciences have met with challenges of reconciling the concept of service to society or community with misplaced values of shared wealth and the processes for wealth creation and distribution to the wider society, they often fail on how to organize good and better environment where they can stay and live at peace in the community and using public resources for public good instead of for personal and private benefit to family and friends.

The principle of majority rule and the protection of individual and minority rights are profitable in democratic society. Majority rule is a means for organizing government and deciding public issues, it is not another road to oppression. Just as no self- appointed group has the right to oppress others, so no majority even in a democracy, should take away the basic rights and freedoms of a minority group or individuals. Minority whether as a result of ethnic background, religious belief, geographic location, income level, or simply as the losers in elections or political debate enjoy guaranteed basic human rights that no government, and no majority, elected or not, should remove.

Can the practice and exercise of constitutional democracy bring about fair opportunities which can be accessed and afforded by everyone? Can fairness and opportunities make everyone develop their capacities and talents which will make individuals compete for social positions. I would argue that this is possible only when the majority rule and minority rights are able to have positive moral governance value to society and also as indicate by Rawls principle that no self- appointed group has the right to oppress others. New Sudan Council of Churches (2002). But where there is lack of political will there is also slow progress in sustainable development, good governance, and capacity building. Limited and blurred separation of powers between the military, government and civil society due to lack of clear policy and legal frameworks and limited government policy is often bypassed in favor of more opportunistic practices or those driven by necessity.

Conclusion

South Sudan is rich in natural resources: large swaths of the country are arable, there are untapped mineral resources; oil reserves are estimated to be the largest in Africa after those of Angola and Nigeria. With a very small population of just over10 million people and a land mass the size of France, South Sudan can feed and care for its people and afford them a descent life free from war and hunger. Ethics should make the constitutional governance of South Sudan to translate to liberty and access to the liberties and fair equality of opportunities. What the people of South Sudan need now is shelter, hospitals, schools, roads and cleans water. These services have hardly existed for over the last sixty years in which the Sudan has been at war with itself.

Reference

Antonakis, J. Cianciolo, A. T., & Sternberg R. J. (2004). The nature of leadership. London: Sage.

Colin M. Macleod (2006), Ethical Political Conduct and Fidelity to the Democratic Ethos, in Denis Saint-Martin, Fred Thompson (ed.) Public Ethics and Governance: Standards and Practices in Comparative Perspective (Research in Public Policy Analysis and Management, Volume 14) Emerald Group Publishing Limited, pp.227 – 242

Hegel, G. (1967) Philosophv of Right, transl. T.M. Knox. Oxford: Oxford University Press.

John Rawls (2001) Justice as Fairness: A Restatement (Harvard University Press) abbreviated JF

John Rawls, (1971) A Theory of Justice (Harvard University Press,); abbreviated

Jwothab (2011) The Roots of Corruption in South Sudan: http://pachodo.org/latest-news-articles/pachodo-english-articles/2185-the-roots-of-corruption-in-south-sudan

Killed in South Sudan violence, BNFA (2014) https://www.nyamile.com/2014/04/08/executive-17613-killed-in-south-sudan-violence-bnfa/

Maesschalck, J. (2004/5). Approaches to ethics management in the public sector: A proposed extension of the compliance-integrity continuum Public Integrity.

Moore, M. H. (1976). Realms of obligation and virtue. In Joel L. Fleishman, Lance Liebman, and Mark H. Moore (eds.), Public Duties: The Moral Obligations of Government Officials . Cambridge, Ma. Harvard University Press.

New Sudan Council of Churches (2002) Inside Sudan: The Story of the People-to-People Peacemaking in Southern Sudan Nairobi.

Turaki (2002:59) How pursuit of good life dominates ethical conscience in Africa

 

Author: James B. A Scholar of  the Practice in International Development Management and Social Policy. For further comments, contact the author at jamesbob@brandeis.edu

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