9 January 2014

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

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There is much to suggest that the members of the National Constitutional Review Commission (NCRC) have so far been unable to resolve key questions pertaining to the new political order, even before reaching out to the wider public. The weak constitutional basis of South Sudan's current politics has moreover been further diminished through the past year's political developments.

Changes to the constitutional framework made since the CPA have increased the powers of the president. The transitional constitution also provided the president with wide reaching powers, for example through the authority to dissolve state governments and declare the state of emergency without the consultation of the legislature.

The use of these excessive powers has not only been met with great concern among civil society groups and the political opposition, but increasingly disgruntled parts of the political elite.

The authoritative reshuffle of the national cabinet by President Kiir in July and August is a point in case. Using the powers awarded to him by the transitional constitution, the President sacked unruly members of the government and political rivals, such as the former Minister of cabinet affairs Deng Alor and the former Vice President Riek Machar. Earlier in January 2013 Salva Kiir had already dismissed Lakes state governor Chol Tong Mayay, followed by the removal of Unity state Governor Taban Deng Gai in July 2013, without providing any good cause - Kiir didn't even make an effort to justify his position along constitutional lines.

These manoeuvres have provided a suitable basis for the mobilisation of political and armed opposition among the wider population and have contributed considerably to the renewed split within the SPLM.

Taben Deng Gai for example has taken a prominent role in criticizing the President Kiir's authoritarian leadership before the onset of armed violence, and now represents forces loyal to Riek Machar in the cease fire negotiations in Addis Ababa.

While a clear link between the outbreak of armed violence and the recent disgruntlement with Kiir's manoeuvres will be difficult to prove, there is no doubt that Kiir's former allies now pursue their political campaigns on military grounds.

Defending Constitutionalism, but for what?

The threat of a coup d'état is today much more real than at the outbreak of violence on 15th December 2013. However, to speak out against a possible unconstitutional change of government in South Sudan requires grappling with a more complex truth than the immediate danger of a regime change: That South Sudan currently has no constitutional order to rely upon.

A proper political contract, known to and accepted widely among people of South Sudan, as well as enforced by all members of the government, was one of the central hurdles to take in the transitional period. Instead, the decay of South Sudan's frail political order before its proper formation, has substantially contributed to the current crisis.

In the current situation, there is a danger that the new constitutionalism will only serve to bolster the position of the current elected office holder and to keep him in government.

The new normative framework would then first and foremost provide a normative justification for a position which most of the regional partners hold because of their own economic, political and security interests: That Salva Kiir should stay.

If put to use this way, Africa's move towards constitutionalism will serve as yet another strategy to secure the power of the powerful. It would declare illegal any attempt to change government by force, however good the cause.

Such a situation can only be avoided if the rhetoric of constitutionalism is indeed accompanied by a stronger commitment to facilitate the negotiation of a real social and political contract for South Sudan. The Lomé Declaration has been clear about this necessity.

The new negotiations in Addis Ababa will be a demonstration of which principle South Sudan's regional partners really adhere to.

Andreas Hirblinger is a PhD candidate at Cambridge University.

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