By Tong Kot Kuocnin,
Aug 25, 2017(Nyamilepedia) —— Although establishing constitutional government in most post-conflict countries like South Sudan is an important step to quell the discontent between the warring parties, it is often difficult and quite complex to sort out as a matter of urgency constitutional requirements. Despite intensive efforts to form the Transitional Government of National Unity which seemed to be a multi-ethnic government though its formation was based on the power ratios enshrined in the Agreement for the Resolution for the Conflict in South Sudan (known as the Compromise Peace Agreement).
The outstanding and quite difficult issue complicated by the issue of 28 states is the incorporation of the Agreement on the Resolution of the Conflict in South Sudan into the Transitional Constitution of the Republic of South Sudan, 2011 which its provisions have been outweighed by the provisions of the Agreement under Chapter VIII, article 1 which provides for supremacy of the agreement over the Transitional Constitution articles. The agreement is partly incorporated into the constitution but with some contentious provisions which contradict the terms of the agreement remaining unincorporated due to disagreement amongst the parties to the conflict. The agreement provides for continued negotiations of the parties to the conflict on contentious issues with mediation shifted to JMEC which shall be acting as an intermediary between the parties. But the level of mistrust is still very wide between the parties, making compromises on how to resolve certain issues like the issue of 28 states a stumbling block to the full incorporation of agreement into the transitional constitution uneasy thus making the writing and adoption of the transitional constitution an outstanding and hence relegates the Transitional Government of National Unity to operate in a widest constitutional vacuum.
There is no any country that is governed or ruled on the bases of the terms of the agreement, for the agreement is not a fundamental law (grundnorm) of the country. There is a need for an adoption of the Transitional Constitution as a grundnorm governing all the actions of the government and government officials not an agreement which fell short of anchoring in the responsibilities of the government officials and how to address such shortcomings if any of the government officials exceeded ultra viresly his mandate and responsibilities. The agreement talks about the institution of presidency, how decisions in the presidency are made, divide the power between principal parties to the conflict and other political forces in the country but it didn’t spelt out clearly how other institutions of government act and how to address their shortcomings.
Thus, constitutional making is quite essential to restore governance and to strengthen and build trust in the government because the design of a constitution and constitution-making process is an integral part of the political and governance transition in peace-building. In absence of the text of the constitution, decisions are likely to be made in a highly charged, divided and often violent environment for there is no any document to guide and dictates the process and the procedure with which decisions are to be made. In post-conflict countries like South Sudan, effective constitutional-making and constitutional reform requires striking a balance between two needs, that is, establishing legitimacy and mutual trust between state and society; and enabling political institutions to act as quickly as possible to address most challenging issues. The constitution must mandate the transitional government that it operates under and enforces the rule of law and these are aspects and pillars which you can’t find anywhere under the agreement.
It is the constitution that addresses flaws in the existing legal code, in the application of laws and regulations in ways that favour some groups and abuse others, in the relations between state agencies and ordinary citizens, in access to justice (judiciary) and fair legal practices, not the agreement. As Vivien Hart observed from her assessment of experience with constitution-making in Africa, ‘a democratic constitution cannot be written for a nation, nor can one be written in haste. ‘Interim or transitional’ constitution that include guarantees for a continuing, open and inclusive process for longer terms offer one solution to urgent needs for a framework of governance in new, divided and/or war-torn nation like South Sudan. However, there is a need for a transitional constitution to be finalize, adopted and sign into law by the President of the Republic. This is important because for the Transitional Government of National Unity to continue operating in the shadows of the agreement without any constitutional framework will diminish its legitimacy and many right minded citizens of this country will begin to look at it as an illegitimate group of institutions shielded by loose provisions of the agreement and operates under no legal framework. They will begin to look at it as just a bunch of old group of looters, failed and corrupt people from the old system who have shield themselves in the coat of the new system.
The writer is a Master of Laws (LLM) candidate at the School of Law, University of Nairobi specializing in Law, Governance and Democracy. He can be reached via: firstname.lastname@example.org