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By Juol Nhomngek Daniel - 2 Jan 2024

Opinion | Why the success of general elections is hinged on a permanent constitution

The governance system of any country defines the citizen’s power, stable of peace and security in a country.  The constitution of any country defines the system and the limit of the powers each actor and governance institutions have. The institution oversees the system while the system protects the constitution, which is supreme.

The constitution donates and dictates powers roles of individuals and institutions. The aim of the constitution is to establish a strong governance system. Therefore a strong system exists where there is a balance of power, no one enjoys absolute power under the rule of law. This is the simple concept of the rule of law and as dictated by law itself.

The meaning of the Constitution making and building

Establishing a strong governance system depends on the process of constitution-making, itself, a long-term process. Constitution making is not an event and should not be equated with the sole process of drafting of an interim constitution. It is unfortunate that many academicians involved in the current debate only look at the process of drafting the constitution and citizens’ participation. They don’t look beyond factors that affect the making of a final constitution.

For South Sudan to have a good constitution and a strong system of governance, we must understand the relations between the institutional design and constitution building.

Understanding the link between the two can provide an answer to our current debates over who should make the constitution, how long the making of the constitution should last and at what stage should the constitution be written?.

The constitution making process is not like general elections where citizens make outright decisions at the ballot. It is a long political process that births the legal document, the constitution.

Under the 2018 Revitalized Peace Agreement, it is important to understand that the political process involves implementing the agreement in its letter and spirit as stipulated in the agreement until the final permanent constitution is made.

Therefore, any attempt to skip any step in the implementation of the agreement may brew crisis in the next governance system.

There are those who argue that the general elections should be held before the existence of a permanent constitution which is part of the implementation of the agreement and my question to them is, “Is it possible to hold elections without defining the kind of governance system we want and how do we deal with electoral disputes resulting from shambolic polls elections?

The political class have a major role in designing an electoral system based on the constitution and this is through powers donated by the citizens of a country.

In their literary works, Professor Yash Pal Ghai, and Guido Gall concur that the centrality of the constitution is enhanced by the fact that many contemporary conflicts are about the design of the state and thus involve, fundamentally, its constitution.

In South Sudan, what is at stake is not citizen’s participation in constitution making process per se but the design of the ‘inclusive state’ that politicians should develop the document in their own thinking. This is contrary to the spirit and the tone of the Revitalized Peace Agreement.

Revitalized Peace Agreement and Permanent Constitution

The Revitalized Agreement is the document that seeks to establish the system, which is accountable to the public by enshrining the culture of transparent and accountable institutions.

Implementing the Revitalized Agreement in letter and spirit can enable us to establish procedures that embody the rules for constitution making or drafting that gives legal effect to the final constitution and its post implementation.

Article 6.2 of the Revitalised Agreement provides for the principles and procedures of making Permanent Constitution. Moreover, Articles 6.2,1 to 6.2.8 of the Revitalized Agreement provide for the principles on which the permanent constitution shall be based on.

In accordance with these principles the major goals of permanent constitution is to ensure proper allocation of powers and national resources, reconciliations and healing, accountable and transparent system.

These goals are provided for under Chapters IV, V and VI of the Revitalized Agreement. These chapters are therefore the heart of the building strong institutions on which the system of government in South Sudan can be established on.

The unexplained part of the Revitalized Peace Agreement

What many have not fully understood about the Revitalized Peace Agreement is the fact that the constitution-making is not envisaged to be an independent process from the implementation of the agreement. Rather, it is the part of simultaneous wider process of the implementation of the agreement that begins with the secession of hostilities and ends with the establishment of a permanent constitution hence the general elections.

This simultaneous process is clearly outlined in accordance with the chapters of the Revitalized Peace Agreement as follows—

It begins with the formation of government of national unity, follows by a cease-fire, then the control of weapons or security arrangements, which is part of confidence-building measures. This is followed by truth, healing and reconciliation processes, besides, negotiations of impunity and continuous interim arrangements.

The continuous interim arrangement is seen in the continuing process of negotiation with rebels or excluded groups so that they are included in the main agreement and eventually incorporated in the Government of National Unity.

Amidst the on-going negotiations on key plans of the peace agreement’s implementation, the principal parties to Revitalized Peace Agreement should continue with negotiations on the principles of the new constitutional order to be followed by the conduct of the general elections. This sequent approach to the resolution of issues in the agreement is in other words, the process of establishing a strong system of governance and elections.

 Understanding this process is important for us to clearly get the rationales behind the complex nature of the Revitalized Peace Agreement and why its implementation has been very slow.

It is important for the people to understand that establishing a governance system is not as easier as the debate over what a good system should. It is a practical process that follows well established and clear far-looking into the future principles. For that reason, it is slow and if not handled with care, it can easily claim the gains made so far in the process.  

 Systems of government and the best choice for South Sudan

The Presidential System

The first system of governance is the presidential system. This is the system where the executive and legislature are separate agents of the electorate that define their separate origin and survival.  Under the presidential system, the president is both the head of state and the head of government.  He or she is elected through popular vote across the country.

The president’s term of office under this system is fixed. Parliament does not have powers to cast a vote of no-confidence against the president.  Moreover, the president is neither politically accountable to the legislature nor dependent on his or her party’s support to stay in office. The cabinet derives its authority exclusively from the president. The president has some political impact on the process of law-making.

 The main shortcoming of the presidential system is that it creates the possibility of an impasse between the executive and legislature that cannot be easily resolved.  In most cases, such impasse ends up in the dissolution of the government and calling for the earlier elections.

The Parliamentary System

Apart from the presidential system as discussed above, another system that exists is the parliamentary system. The main criterion of this system is the fusion of powers and the executive is subordinate to the legislature.  The executive depends on the legislature for survival. Under this system, the head of government and the head of state exist separately.

The head of government is also known as the prime minister. He or she is elected by the legislatures and is answerable to them through a vote of no confidence. The head of government can be removed at any time if his or her political programme no longer reflects the will of the majority in the Parliament. However, the head of the Government is dependent on his or her party for political support.

Unfortunately, the head of the government holds some powers and where he or she loses political support of the majority in the parliament, he or she might dissolve the government and call for earlier elections as already stated above. When it comes to the head of state under this system, he or she is often a monarch or ceremonial president who does not have executive powers like the president under the presidential system. The two main advantages of a parliamentary system are:

First, it creates a broad and inclusive government in a deeply divided society like the case of South Sudan; and second, the legislative process under the Parliamentary system is faster since no political veto of the executive to block such a process exists. This takes me to the next system of government.

Mixed system

Apart from the two systems already discussed above, there is also a mixed system of governance or if you like you can call it a hybrid system, which is often referred to as a ‘semi-presidential system. The key characteristic of a mixed system is a dual executive. It combines a transactional relationship between the executive and the legislature with a hierarchical one.

 Under this system, the president serves as the head of state and he or she is elected by popular vote. The prime minister may be appointed under this system as the head of administration in the government. Neither the president nor the legislature is in full control of selecting, appointing and removing the prime minister.

In this case, the prime minister as the head of government is accountable to parliament through a vote of no confidence. The president under the mixed system, possesses quite considerable executive powers. Knowing these three types of systems of government may help us to choose the best system and electoral system that can help South Sudan achieve everlasting peace.

Electoral system

Once the country has a distinct system of governance, the electoral system can be easily defined. The only way of defining the system of government and electoral system is to have a stable and democratic constitution. The democratic constitution then defines the distinct system of government and its functions and the modality of changing the government.

After passing the constitution that establishes the systems of governance and elections, South Sudan will then develop the set of rules that determine how elections and referenda are conducted. This can be possible only if we have the constitution that establishes the system of governance and its nature that will determine the rules and process of the elections.

In conclusion

I have to conclude that based on the foregoing arguments, we cannot hold elections without establishing the system of governance to design appropriate electoral system for South Sudan. When it comes to the appropriate system of governance for South Sudan, I recommend the parliamentary system where the executive is subordinate to the legislature and it depends on the legislature for survival.

The reasons for recommending the parliamentary system are that— First, it is inclusive that will help reduce marginalization of some communities; and second, it reduces the electoral disputes that is common with the presidential system. In this case legislatures are the ones who elect their member within parliament to the head of government.

In summary, we should not be forced by conditions to choose unsustainable path and I have to emphasize that we cannot hold proper elections unless we have the permanent constitution in place. We must first have the constitution that defines the system of governance, types of elections and electoral process in South Sudan.

The writer is a member of the National Parliament (TNLA) representing Cueibet County in Lakes State on the ticket of the SPLM-IO. He is a Constitution Law and Human Rights lawyer. He can be reached through:

The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.