South Sudan president lifts the new transitional constitution to crowds attending an independence ceremony in Juba in July 2011. Andrew Burton/AP/Press Association. All rights reserved.Constitutions comprise the rules, principles, and laws that define the relations between the government and people. Edmund Burke, a noted statesman and thinker of the eighteenth century, regarded the constitution as “an evolving contract between the past and present”, one that required constraint to control revolutionary passions for liberty. He of course railed against those who used it for revolutionary purposes, which included Thomas Jefferson and Thomas Paine. Yet it was precisely this passionate aspiration that has sustained the US constitution and helped drive efforts to assert its influence overseas.
In the early 1990s, for instance, some US pundits insisted that in order to fill the political vacuum left by the fall of the Soviet Union, countries should incorporate the US bill of rights into their constitutions. Few of course took these calls seriously; however, they have helped underscore the difficult and often delicate process of using constitutional ammendments to advance democratic values and peace-making, particularly in parts of sub-Saharan Africa.
A number of scholars have studied the benefits of this process. Many, including Helen Lerner, argue that constitutional amendments during peace negotiations can reinforce institutional accountability. But they concede that, because negotiations typically include only political elites, constitutions should be amended on a gradualist basis, with the aim of preventing anyone’s normative perspective from dominating future decision-making.
This has led some to claim that constitutions should be treated as contractual arrangements among the elites themselves; that, like contracts among private parties, constitutions require long-term, binding commitments and obligations. Over time, they reason, the people will learn to acquiesce to the provisions of the constitution, paving the way for future consensus on other issues related to security and governance, such as decentralization/ federalism or further constitutional checks and balances.
But the problem with these approaches is that by privileging the role of the ruling national elite in any peace talks, they also beg the question of whether any meaningful change can be adopted when the elites control the political system (and have something to lose by implementing these changes).
Consider, for example, South Sudan, which recently adopted a sweeping peace agreement that will establish a transitional unity government and the attendant parameters of a permanent constitution to replace the Transitional Constitution (2011). The government of South Sudan had earlier in 2012 set up a National Constitutional Review Commission (NCRC), to draft the new constitution.
Under the new peace agreement, however, the NCRC ‘s mandate has been strengthened. Key features of this mandate include improved constitutional checks and balances and federalism. Both are intended to further the will of the people in the constitution-making process by instituting two-month civic education programs designed to raise awareness of the constitutional process. But the problem is that the country remains deeply divided.
South Sudan, which gained independence in January 2011, has had to deal with a flawed constitutional process. The process began with the Comprehensive Peace Agreement (CPA), which ended the second civil war in Sudan and created the interim constitution for the regional government in the south (2005-2011), which would later be turned into the Transitional Constitution (2011-present).
The Transitional Constitution contains a progressive list of human rights introduced by foreign officials, including US lawyers representing the elites or political leaders. But the new class of military, political elites – those who had acquired their wealth from the collection of tax booty during the second civil war in Sudan (1983-2005) – never seemed content with enforcing these rights.
Their long history of suspected human rights abuses during the civil war stemmed from their poor treatment of civilians. The failure to hold them to account for these abuses created a culture of impunity that would reinforce political grievances, triggering the recent civil war in South Sudan (2013-2015). The war, which ended when South Sudan’s President Salva Kiir Mayardit and the opposition leader Riek Machar signed a peace agreement in August 2015, has left nearly 50,000 people dead.
It has also reinforced a deep cynicism toward the current peace agreement and its promises of instituting the new parameters of a permanent constitution. As Jeremiah Swaka Moses Wani, the Deputy Minister in the Ministry of Justice, insisted, “meaningful change cannot occur with the political leaders controlling the political system”.
So what does this mean for constitutionalizing the fragile peace in South Sudan?
For one, the constitutionalizing process needs to be more transparent. This means that any amendments to the current Transitional Constitution must be adopted democratically – and not by any one set of the current political leaders. Between 2012-2013, for instance, Kiir implemented several technical changes to the Transitional Constitution, which the opposition leaders perceived as a power grab by Kiir. Constitution-making has to be carried out independently, meaning that the approval of the constitution will need to be inclusive.
Second, there is the need to overcome the divergence in international and local efforts to structure the new constitution. At this time, South Sudan’s Transitional Constitution remains “dualistic”, meaning that its progressive and extensive list of codified human rights remains at odds with the undeveloped operations and practices of political institutions that are supposed to enforce these rights.
Bringing these two priorities in line with one another will not be easy. But South Sudan’s 2015 current peace agreement does provide for a list of procedures for merging these two above objectives or implementing the new inclusive parameters of the permanent constitution.
At this time, the peace agreement represents an opportunity to move from this constitutional duality to inclusivity. It reflects among other things how a new constitution should be made part of a democratic process that drives the peace-making process, rather than simply serving the interests of the political elites. The challenge, then, is to ensure this. This means ensuring that the new constitution continues to serve as a substantive source of unification, especially in terms of the hybridization of legal rule and norms (a hybrid War Crimes Court), and more generally in combining tribal customary and international law.
The officials I recently spoke to in South Sudan stressed the importance of combining traditional or tribal customs with many of the provisions for human rights. This was, as they stressed, the only way to induce the peoples to participate and feel part of the process of constitutionalizing peace and promoting national unity.