9 January 2014

South Sudan: Defence of Constitutionalism May Just Secure the Power of the Powerful

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The mechanism to prevent and address unconstitutional changes of government has further been institutionalised through the emerging African Peace and Security Architecture (APSA), which suggests that peace and security on the continent can be furthered through the strengthening of democratic governance.

South Sudan's frail constitution

Through the invocation of constitutional principles, Salva Kiir's government has been bolstered by its neighbours and allies.

Not only have the expectations of the armed oppositions for a quick and straightforward military takeover been reduced, but President Kiir has also used the discourse of constitutionalism to strengthen his own position. In an interview with the BCC, Kiir remarked that "if you want power, you don't rebel."

Kiir continued:

"When I came here I came not through the military coup, I came because I was elected by the people. Elections are coming in 2015. Why did he [Riek Machar] not wait, so that he goes through that same process? If he wins the elections, then he comes to this office."

Drawing on the same discourses of constitutionalism and democratic governance, the presidency has been quick to dismiss the cause of the armed opposition.

However, the claim that the current government is legitimate because it was put in place through a constitutional process and democratic elections must be treated with caution. The current constitutional discourse is at risk of omitting the deeper political tensions through which politics in South Sudan have been characterized since the Comprehensive Peace Agreement (CPA) of 2005.

Whoever invokes principles of constitutionalism in South Sudan must note that the country's current constitution is a provisional one.

Drawing on the interim constitution of 2005, the transitional constitution of 2009 is just as much a brief case document, written largely by legal experts and key members of the national government, without any meaningful popular consultation.

As a product manufactured largely by technical experts, the transitional constitution lacks the political thrust of a document that may have been sincerely discussed within the political leadership and among the wider population.

The key principles of the current constitutional framework, such as an emphasis on political decentralisation, reflect overarching South Sudanese political creeds developed through the long durée of their political struggle.

However, key questions concerning the devolution of power within the state, such as the relationship between the national and state government, or the role of the presidency, remained contested among large parts of the political elite throughout the transitional period.

The current constitutional framework has largely been minted through the decades of conflict with the north. Lacking a negotiated ideational fundament, it provides a very limited basis for a much needed political and social contract.

The development of a permanent constitution through a comprehensive consultative process (including popular participation) started in January 2011, but has since then faced considerable challenges.

Fraught with delay and lack of political commitment from the beginning, many commentators have criticised the limited inclusivity of the constitutional review committee, the lack of transparency and the slender commitment to public participation by many members of the government.

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