By Tong Kot Kuocnin
July 16, 2019(Nyamilepedia) — A country’s constitution plays the major role in ensuring constitutionalism since it creates and allocates powers to the institutions of government and also seeks to control and/or restrain the exercise of such powers. It is noteworthy that state institutions comprise the Executive; the Judiciary and the Legislature.
This article analyses the role of the constitution in checking the powers of the president (who heads the Executive) in order to achieve constitutionalism in a democratic state. It singles out the office of the president (presidency) as it yields more powers compared to the other institutions and hence has crucial impact on constitutionalism, good governance and the rule of law.
The article discusses and focuses on the office of the president under the TCSS, 2011 (Amended 2015) to highlight how the unchecked presidential powers which continue to stifle constitutionalism in South Sudan.
This article first gives the general introduction and background before analyzing the office of the president as enshrined under the Interim Constitution of Southern Sudan, 2005 and the TCSS, 2011 (Amended 2015). It will also discuss to ascertain whether or not the office of the president (presidency) is a hegemonic presidency.
However, before it concludes, the article will discuss and examines the cultivation of a hegemonic office of the president (presidency) under the constitution of South Sudan, 2011 in correlation to the Interim Constitution of Southern Sudan, 2005.
The Office of the President under the Interim Constitution of Southern Sudan 2005
The office of the president of the government of Southern Sudan was established under article 97 of the Interim Constitution of Southern Sudan, 2005. This article provides that there shall be a President for the Government of Southern Sudan who shall be directly elected by the people of Southern Sudan in general elections according to this Constitution and the provisions set forth by the National Elections Commission in accordance with the electoral law.
Equally, Article 103(2) of the ICSS, 2005 provides further for the functions of the president where inter alia, it states that the President of the Government of Southern Sudan shall perform the following functions:
- Serve as First Vice President of the Republic of the Sudan in the circumstances set forth in Article 62 (1) of the Interim National Constitution;
- Preserve the security of Southern Sudan and protect its territorial integrity;
- Supervise constitutional executive institutions and provide exemplary leadership in public affairs in Southern Sudan and in the Republic of the Sudan;
- Appoint holders of constitutional and judicial posts in accordance with this Constitution and the law;
- Preside over the Southern Sudan Council of Ministers;
- Request, pursuant to Article 199 (2) of this Constitution, the President of the Republic to declare a state of emergency in Southern Sudan or any part thereof;
- Initiate constitutional amendments and legislations and assent to bills passed by the Southern Sudan Legislative Assembly by signing such bills into law;
- Summon, adjourn or prorogue the Southern Sudan Legislative Assembly in consultation with the Speaker;
- Confirm death sentences, grant pardons, and remit convictions or penalties according to this Constitution and the law of Southern Sudan;
- Appoint his or her advisors;
- Appoint ad hoc committees and commissions;
- Confer honors;
- Generally represent the Government and the people of Southern Sudan; and
- Perform any other function as may be prescribed by law.
I ironically, if one circumnavigates through the spirit of the interim constitution of Southern Sudan, 2005 as discussed above, then it is to be pointed out in no uncertain terms that the Interim Constitution of Southern Sudan, 2005 didn’t thus enshrined as one of the powers to the president of the Government of Southern Sudan, the power to remove any democratically elected governor of the then Southern Sudan ten (10) states.
In fact, the Interim Constitution of Southern Sudan, 2005, upon which the Transitional Constitution of the Republic of South Sudan, 2011 (as Amended 2015) was moulded, didn’t also bestowed upon the president, the power to remove the elected governors of the then Southern Sudan as it appeared in the TCSS, 2011 (amended 2015).
Hence, the imputation of the provisions of article 101(r) as it appeared in the Transitional Constitution of the Republic of South Sudan, 2011 (and which was recently amended in 2015) is a clear deviation and thus a complete driftage from the spirit of the Interim Constitution of Southern Sudan, 2005, the fundamental law which governed the region for six years and six months and until the adoption of the Transitional Constitution of the Republic of South Sudan, 2011.
The inclusion of article 101(r) in the Transitional Constitution of South Sudan, 2011 as amended in 2015, was, legally speaking, circumfused and thus included to arrogate to the president the undemocratic powers to sack the elected governors under the pretext of the so-called ‘crisis threatening the country’s national security and territorial integrity even when some of the communal feuds didn’t reach the magnitude warranting the removable of the elected governor.
This article 101(r) as it appeared in the transitional constitution, constitutionally speaking, is not only undemocratic but equally unconstitutional as it infringes the right of the electorates, who through universal adult suffrage as constitutionally guaranteed under the constitution and the law, voted into office, the leaders of their choices as their governors.
Thus, this has crippled the true spirit of the Constitution of any democratic state which serves the purpose of creating the institutions of government; allocating power to these institutions; and controlling or restraining the exercise of such powers by government institutions, which include the office of the president.
In this sense, the attributes of what we termed as constitutionalism which refers to those constitutional or legal mechanisms that serve to facilitate limitations of governmental power ceases to have any meaning further. These attributes as they are known include the rule of law; constitutional supremacy; respect for human rights; regular periodic elections and transparency and accountability which every democratic country aspires to meet and uphold.
The reason being that the rule of law facilitates constitutionalism by requiring political power to be used with restraint, efficiently, and for the good of all citizens. The rule of law emphasizes limited government, separation of powers, checks and balances, and judicial review of executive actions or decisions. In fact, constitutionalism would be an illusion in the absence of the rule of law.
Above all, if one could make a befitting remark in the spirit of constitutionalism which ensures that government’s power is limited by mechanisms in the law (rule of law) to avoid abuse, then one may argue that a very strong institution of government such as the office of the president that is ‘hegemonic’ defeats constitutionalism by yielding unlimited powers and not respecting the rule of law.
III. The Office of the President under the TCSS, 2011 (Amended 2015)
The Transitional Constitution of the Republic of South Sudan, 2011 (amended 2015) has a number of provisions that outline the president’s powers as listed under Article 101 which provides for the duties and functions of the president.
The imposition of article 101 (r) and 101(s) is an absolute departure from the spirit of the 2005 Interim Constitution of Sothern Sudan as the president was expected to discharge the duties specifically allocated under the Constitution.
The inclusion of these clauses could have facilitated constitutionalism by preventing arbitrary exercise of excessive presidential powers, which unfortunately, hasn’t been the practice. Under the Transitional Constitution 2011, the president remains the head of the government (Executive) as well as head of state and is assisted by ministers that he appoints.
The Transitional Constitution 2011 (Amended 2015) does not set the size of cabinet and does not prevent the president from creating more ministerial positions except on presidential advisors where Article 107(1) provides that the President may appoint a limited number of Presidential Advisors and shall define their functions.
Nevertheless, the fact that the exercise of presidential powers must be consistent with the law could act as a check against abuse has not been given a space and thus and it has caused public uproar resulting to the naming of the Transitional Constitution, 2011 as ‘John Luk’s Constitution’.
However, despite public uproar, the president continues to exercise these unlimited powers as much as he wants which suffocates constitutionalism and crippled other pillars such good governance and the rule of law.
Thus, this in essence, implies that some elements of presidential hegemony found their way into the Transitional Constitution, 2011. This is because the process of the making of this constitution was marred by lack of inclusiveness and wider participation of the other democratic watchdogs and stakeholders such as the civil society, youth and women groups and faith-based organizations. That was the beginning of the cultivation of a hegemonic office of the president in South Sudan.
Office of the President: Is it a Cultivation of a Hegemonic Presidency in South Sudan?
As discussed earlier, it is safe to firstly define what a ‘hegemonic office of the president’ or ‘hegemonic presidency’ means. In this context, a ‘Hegemonic Presidency’ refers to the presidency that is such powerful and strong that it dominates all other powers in a political system.
Hitherto, the examples of hegemonic presidency may in this sense include dictatorship and autocracy, the case of which the office of the president of South Sudan is crawling to be. These tendencies have been identified to be in existence in South Sudan.
However, as experiences have shown, hegemonic presidency is not a stranger to African politics as the presidency is seen as a key to ‘everything’ in most African countries and thus South Sudan is no exception.
Ironically, hegemonic presidency or office of the president is perceived as a route to accessing state resources for personal abuse by the people closed to the president, friends, colleagues and immediate family members. Hence, the hegemonic presidents and their supporters are not ready to relinquish the presidency due to the power and privilege for abuse associated with it.
In addition, the dominant office of the president or presidency is personalized. Consequently, it results in neo-patrimonial leadership constituting a political system of governance dominated by personalized authority and clientelism, private appropriation of public funds, selective resource distribution and above all, nepotism. This has been the case in South Sudan where many scandals such as Dura saga and many others haven’t been thoroughly investigated and culprits prosecuted.
Accordingly, the persistent existence hegemonic office of the president or presidency remains a major obstacle to constitutionalism, good governance and the rule of law in South Sudan. It can thus be observed that hegemonic office of the president or presidency is incompatible with constitutionalism.
Therefore, if a constitution leaves room for hegemonic office of the president or presidency to flourish, there will be a constant threat on constitutionalism or no constitutionalism at all can be realize in any way possible as the people around hegemonic presidency as a personalized institution would always make sure that the institution isn’t tempered with as their interests and wellbeing is thereto bested on it.
In view of this, constitutionalism will be guaranteed if the ‘makers’ of the constitution ensure that elements of hegemonic presidency are not accommodated during constitution-making. Thus, it is safe to state that there is indeed an uncoiled relationship between ‘constitution-making’ and constitutionalism.
Hegemonic Presidency under the Constitution of South Sudan, 2011
The Transitional Constitution of South Sudan, 2011 made South Sudan a multi-party state under SPLM’s reign, which made the president the most powerful head of state and government. The Transitional Constitution further concentrated crudely, the state powers in the president.
Among others, it made the president the ‘supreme executive authority of the Republic’ with powers to appoint cabinet ministers and other top public executives as he deemed it fit. The Transitional Constitution also gave the president the freeway to act ‘in his own discretion without following the advice tendered by any person as required by law.
The constitution hitherto granted the President unlimited powers to assign any ministerial position or government post to anyone he deemed fits unquestionably. It is noteworthy that in 2015 the Constitution was amended to extent the office of the President for another three years without any election or consultation with the people to renew his mandate.
The extension of the office of the president and that of the entire government in 2015 further entrenched the president’s powers as he could act in any manner without any fear of being removed from office through impeachment or being accountable to the people either.
The Constitution further gave the president, powers to control parliament with the effect that the Parliament was subservient to the president under the constitution which gave him additional impetus to entrench his already unlimited authority.
For example, the Constitution gave the President powers, among others, to appoint no more than 60 MPs in 2010 who held their seats at the will and pleasure of the president and to direct, during the election if not appointment of the house speaker, on the personality he likes.
The constitution gave the President the power to convene, summon, adjourn or prorogue the National Legislature in consultation with the Speaker. The constitution gave even more powers to the president to remove a state Governor and/or dissolve a state Legislative Assembly in the event of a crisis in the state that threatens national security and territorial integrity.
But, the most intriguing thing is that, the constitution felt short of describing what amounts to a ‘crisis in the state’ that warrants the dismissal of an elected governor by the people. This article 101(r) has done more harm than good when the president decided to use his unlimited powers as stipulated under the constitution to remove elected governors of various states even when the magnitude of the communal feuds don’t constitute a threat to national security and territorial integrity as it has been the argument and justification put forward by many in an attempt to solicit support for the excessive act of the president.
However, though the constitution provided for the removable of the elected governor on such grounds, the same constitution directs the president to appoint a state care-taker Governor who shall prepare for elections within sixty (60) days in the state where the Governor has been removed or the state Legislative Assembly so dissolved in accordance with the provisions of the Constitution, the relevant state constitution and the law.
Unfortunately, this has not been the case as many democratically elected governors have been removed by the president since 2012 and no any single election has been conducted as provided for under article 101(s) of the Transitional Constitution, 2011 (Amended 2015).
The practice has been that the president used his powers to remove the democratically elected governors but failed to adhere to the spirit of the same constitution that gave him powers to remove an elected governor by calling or organizing elections in sixty-days as required by the constitution.
Therefore, it is not surprising that the ‘president’s regime has been characterized by oppression, intolerance and lack of respect for human rights, complete breakdown of the rule of law and constitutionalism’, in addition to ‘hero-worshiping, centralized authority structures, exclusiveness, and intimidation of potential critics’.
It can be observed that the hegemonic presidency that was created and sanctioned by the Transitional Constitution acted as a constant prevalent cause for the lack of constitutionalism during president Kiir’s 14 year old rule (2005 up to today).
Although South Sudan had enacted the Transitional Constitution with hope to align itself to other democratic states in the region and on the continent at large, the traces of hegemonic office of the president (presidency) found their way into the Transitional Constitution, 2011.
It is in this way monstrously that the hegemonic office of the president which wields most powerful and excessive presidential powers granted by the constitution was created.
The purpose of a democratic constitution is generally to limit the powers of government. Hence, preserving constitutionalism is crucial to the sustenance of South Sudan’s democracy that the Transitional Constitution seeks to guarantee following the country’s declaration of independence from Sudan on the 9th of July 2011 after very many years of protracted civil wars.
However, the preservation of constitutionalism remains a challenge in South Sudan because one of the major causes is the fact that the 2011 Transitional constitution-making process was apparently done in haste with minimal participation of the people as a reaction to Khartoum’s rule. Hence, the 2011 ‘Constitution drafters’ didn’t rectified those powers that would succumb to abused instead of checking all powers that could be potentially abused.
Indeed, the framers put undue focus on correcting the mistakes that had made Sudan ungovernable for almost 50 years of its independence from the British in 1956 by creating a new political dinosaur without having an informed practice as to how democracy should work in practice in South Sudan in order to avoid recourse to wars and conflicts caused by undemocratic constitutions as has been the case in Sudan.
Consequently, the 2011 constitution-making process, which was flawed as discussed above, resulted in the adoption of a Constitution that left sufficient loopholes for the mushrooming of a hegemonic office of president in South Sudan typical of any other system of governance of modern times.
Otherwise, South Sudanese have to continue to explore other viable avenues to identify appropriate constitutional measures that would be used to contain the exercise of excessive presidential powers and to rescue the ailing pillars of democracy suffocated by the excessive use of presidential powers as stipulated in the TCSS, 2011 (Amended 2015).
The separation of powers between the executive headed by the president, Parliament and the Judiciary should also be strengthened by limiting excessive presidential interventions in the Legislative functions which curtails progressive work of the legislative arm of the government.
As far as the Transitional Constitution of South Sudan, 2011 is concerned, it still allows the South Sudanese president to retain powers that cannot be checked. Therefore, unless South Sudan successfully explores other mechanisms that could be utilized to quell the otherwise unlimited powers of the president, the strong South Sudanese president will pose a perpetual threat on constitutionalism and thus South Sudan will have to continue with the search for the antidote in abeyance.
The author holds Bachelor of Laws (LL.B) Degree from the University of Juba and a Master of Laws Degree (LL.M), specializing in Law, Governance and Democracy from the University of Nairobi. He is a founding dean of law, College of Law, Starford International University College and an Advocate before All Courts in South Sudan. He researches and writes on Constitutional Law and Human Rights, Transitional Justice, Access to Justice, Rule of Law and Good Governance.