The transitional national legislature is to be transformed into a constituent assembly to adopt the ‘permanent’ constitution of South Sudan, but what does this mean?

Author: Joseph Geng Akech
South Sudanese human rights lawyer and LLD candidate, University of Pretoria, South Africa

Introduction

The Republic of South Sudan embarked on its ‘permanent’ constitution building process which is a critical part of the peace process. The Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) puts forward mechanisms and institutions for achieving such ambition. These institutions include the Constitutional Drafting Committee (CDC),[1] National Constitutional Review Commission (NCRC), Preparatory Sub-Committee, National Constitutional Conference (NCC) and the reconstituted transitional national legislature (Council of States and Transitional National Legislative Assembly) acting as a constituent assembly. The R-ARCSS establishes the above institutions with varying powers and degree of influence on the constitution building process.

This article focuses on the role of the reconstituted national legislature – bicameral chambers composed of Council of States and Transitional National Legislative Assembly. According to the R-ARCSS, these two houses of parliament are to be transformed into a Constituent Assembly to adopt, in a joint session, the Draft Constitutional Text passed by the National Constitutional Conference.[2]

The text of the R-ARCSS, language used by the parties, stakeholders, and engaged constitutional lawyers to describe the role and powers of each of these institutions is perplexing. The loudest voice is of those who say that the transitional national legislature acting as a Constituent Assembly cannot be trusted because it is not an elected parliament as it is made up of mostly appointed members and few who were elected since 2010 but whose democratic mandate has expired. In addition, they say that elite political parties and other groups might control the process to their advantage as was witnessed during the interim and transitional constitution-making processes.[3]

Owing to these concerns, they argue that the transitional national legislature acting as a Constituent Assembly must play a nominal role of only adopting the Constitutional Text with powers to only point out grammatical corrections, if any, but with no powers to make substantive changes. They premise this argument on an assumption that deliberations at the National Constitutional Conference represent people’s voice and that fewer political elites cannot be allowed to change what would have been popularly passed. But this argument fails the moment it leaves the mouth of the proponents as I shall discuss later.

 Be that as it may, what is the nature of the transitional national legislature as a constituent assembly in the circumstances? What does it mean to ‘adopt’ a constitution? Can a Constituent Assembly be legally disarmed of its conventional role regardless of what parties have agreed? This article discusses these questions by analysing the meaning of a Constituent Assembly in a constitutional design (II), nature of transitional national legislature as a Constituent Assembly (III) and concludes with thought-provoking recommendations (IV).

The meaning of a constituent assembly

Scholars define constituent assembly as a body whose role is to “make’ a constitution’.[4] The word to ‘make’ has to be read in a broad sense to include ‘adoption’ of a constitution by a constituent assembly. It is a special body that exercises  constituted power on behalf of the people. Professor Ghai says that ‘constituent assembly must be viewed in the context of and relationship to other aspects of the [entire] constitution making processes’.[5] The reference to the word entire suggests a relationship amongst and between decisions of constitution building institutions.

But, what does it mean to ‘adopt’ a constitution? Generally, a national legislature adopts any legislation through deliberation, debating and passing with or with no amendments. This process is ordinarily guided by the object of the legislation and its relations with the wider national legal regime and democratic aspirations of a given country. However, is this the process a national legislature acting as a constituent assembly follows when passing a constitution? This is the point of contention which this article attempts to address. The article does not, however, purport to provide a blueprint answer to this question. It, however, attempts to discuss perspectives that might address challenges.

Let us start then with what the R-ARCSS mean when it states that the ‘transitional national legislature shall be transformed into a constituent assembly for purposes of adopting a Permanent Constitution’. First, it is clear that this is not an ‘ordinary’ law-making mandate that every legislature exercises. We are dealing with a transformed role legally constituted into special power to adopt the ‘permanent’ Constitution. Second, the transitional national legislature is thus not an ordinary legislature, but a national legislature veiled up as a constituent assembly. This gives it special powers which an ordinary legislature does not have. But does this veil render it a ‘conventional’ constituent assembly or could the drafters of the R-ARCSS have conceived of a contextualised meaning?

Addressing this matter might clear up any confusion clouding the role of the reconstituted national legislature acting as a constituent assembly. As I mentioned earlier, it is my argument that the transitional national legislature should exercise a conventional role in adopting the permanent Constitution. I am not advocating for an inflexible interpretation here or what Dr Hope refers to as ‘laws of Moses’,[6] rather, I am calling for actions that would enhance the legitimacy of the process and perhaps, its outcome. The opponents of this view are essentially advocating for a contextualised role of the transitional national legislature which appears not to solve their worries – chief among them being the perception that it might be captured by elites and that the Constituent Assembly might not act in favour of the people. Having analysed the meaning of a constituent assembly, I now turn to briefly discuss the transitional national legislature with emphasis on challenges and prospects in fulfilling its role.

Transitional national legislature as a Constituent Assembly: Challenges and prospects

The transitional national legislature refers to a bicameral house of parliament composed of Upper House (Council of States) and Lower House (Transitional National Legislative Assembly) – both of which comprised over 600 appointed and elected members representing constituencies, groups and other interests in South Sudan.[7] The R-ARCSS empowers the transitional national legislature to veil itself as a constituent assembly for the sole purpose of adopting the draft constitution that would have been endorsed by the National Constitutional Conference. The power to adopt the draft constitutional text is effectively a constituted power with its roots in both the R-ARCSS and the Constitution-Making Process Bill, 2021. It is not new for a legislature to act as a constituent assembly but when they do so, it must be conceivable that they perform a mandate ordinarily expected of any other constituent assembly.

But what challenges and prospects are expected to confront the transitional national legislature in exercising its constituted power to adopt the permanent constitution? In what follows, I discuss some of the challenges of transforming it into a constituent assembly to adopt the permanent constitution.

Unelected national legislature

As I mentioned earlier, one of the critiques against the national legislature acting as a constituent assembly is that it is not elected and its members owe allegiance, first and foremost, to the parties that brought them to parliament. Second, because its members are not elected, the transitional national legislature lacks legitimacy to act as a truly representative body of the people. For it to be a legitimate and representative body, its members should have been elected in a democratic process. Whilst I acknowledge these criticisms as legitimate concerns, it must be noted that except the Constitutional Drafting Committee (CDC) whose members are to be recruited through a competitive process, members of the rest of the constitution building institutions are to be appointed by parties to the R-ARCSS.[8]

If the transitional national legislature exercises its constituted power to adopt the text of the ‘permanent’ constitution, then it should be deemed to perform a conventional role of a constituent assembly save the fact that it is not elected. However, a conventional constituent assembly (assembly that performs roles of a constituent assembly) cannot be possibly disarmed of its conventional roles. The argument that it might act in favour of political elites to concentrate power or water down constitutional text adopted by the National Constitutional Conference is speculative for the following reasons:

First, members of the National Constitutional Conference will, themselves, be appointed rather than being elected. To be precise, its members shall be composed of 1000 delegates drawn from a range of groups such as:[9]

political parties, civil society organisations, women organisations, faith-based organisations, people with special needs, internally displaced persons, refugees and people from diaspora, traditional leaders, war widows, veterans and war wounded, business leaders, trade union, professional associations, academia and other categories to be determined

These large groups can only be reasonably expected to reach a compromise or consensus on broad constitutional questions within the spirit of R-ARCSS, national dialogue and people’s aspirations. They cannot perform a detailed scrutiny that a national legislature sitting as a constituent assembly might do. Thus, on that ground, the national legislature acting as a constituent assembly may not be constrained to the Constitutional Text adopted by the National Constitutional Conference.

Second, it is to be noted that the transitional national legislature comprises political forces on whose agreement, compromise, or consensus the R-ARCSS was signed. This might not be the case with the National Constitutional Conference given its diverse membership. Furthermore, constitution building is a political dialogue on the nature of the State underpinned in the aspirations of the people. This requires continuous dialogue and compromise amongst political forces, most of whom are represented in the transitional national legislature. To deny it the power to turn such compromises into consensus for democratic consolidation could be deleterious to the gains already made as some of the political forces could withdraw from the process which might stain constitutional legitimacy. In any case, deliberations are necessary at the stage of parliamentary adoption. However, the fear of elite capture and self-dealing is real and measures should be adopted to diminish its occurrence and impact. One of the ways to achieve that is to ensure that any amendments made by the Constituent Assembly are only to enhance the constitutional text adopted by the National Constitution Conference but not to materially alter it. The Constituent Assembly must also consult with their constituencies to enhance legitimacy of any compromise reached at the National Constitution Conference. Such consultations must however be coordinated through and with the guidance of the National Constitutional Review Commission to ensure that political parties do not politicise the process and to avoid it becoming a referendum in disguise.

Third, the text adopted by the Constituent Assembly should be certified by a hybrid bench of the Constitutional Court (to include two African jurists) to ascertain:

• that the final constitutional text adopted by the Constituent Assembly does not materially differ with the text adopted by the National Constitutional Conference and that it is consistent with the spirit of the R-ARCSS and peoples’ aspirations as espoused in the July 9 Independence Declaration;
• the constitutionality of the ‘permanent’ Constitution. This means the Constitutional Court must satisfy itself that the final text of the Constitution incorporates applicable international bill of rights, provides for constitutional democratic governance, the rule of law, and promotes peace, unity and international friendly relations with other states.

Cosmetic mandate to merely ‘adopt’ a constitutional text?

As mentioned earlier, most critics of the transitional national legislature acting as Constituent Assembly say that it must perform only the function of adopting the constitutional text passed by the National Constitution Conference without making substantive changes. This is to say that the Constituent Assembly’s functions should produce inconsequential impact to the draft Constitution. But as I have discussed above, this is not legally possible as concerns advanced by the critics are merely political and not legal. For instance, the fear that members of the transitional elites might capture the process as was arguably witnessed during the interim and transitional constitution-making processes in what became known as the John Luke Constitution can be prevented.[10]

It is thus possible to minimise prospects of political capture as Elster observes ‘constituent assembly ought to be organised to minimise the influence of individual or group interest [including constitutional] framers’.[11] He says that the process should only be influenced by ‘the mild voice of reason’.[12] I argue that the only ‘voice of reason’ appears to be the Constitutional Court which will be technical and non-political in its decision-making process.

Whilst the R-ARCSS does not explicitly state hierarchical arrangement of the institutions of constitution building, I maintain that they in fact have an implied functional hierarchy – incremental decision-making.

First, the downstream activities such as negotiating, convening and drafting appear to be the responsibility of institutions such as the Constitutional Drafting Committee, National Constitutional Review Commission and the National Constitutional Conference. This stage of constitution building is clearly preparatory and foundational. However, the upstream activities such as constitutional adoption and certification are affirmatory of downstream activities.

Second, the way the constitution building institutions are arranged – Constitutional Drafting Committee (drafting the text), National Constitutional Review Commission (synthesising public inputs), National Constitutional Conference (adopting constitutional text) and Constituent Assembly (adopting the final text as a constituent assembly) – suggests a functional hierarchy. Loughlin refers to this relationship as a tension between unitarian (views the process as a single transaction of equal power and influence) and hierarchical (incremental power of influence) theories of constitution building.[13] If this view is true, then it means the drafters of the R-ARCSS must have conceived that the upstream institutions would have some power to make changes as the text incrementally passes through those institutions.

Conclusion and recommendations

This article has hereinto discussed the meaning and role of the transitional national legislature transformed into a constituent assembly to adopt the permanent Constitution of the Republic of South Sudan. Its principal claim can be summarised as follows:

First, the muted Constitutional Court proposed under the R-ARCSS should be established and enjoined to certify the final constitutional text adopted by the Constituent Assembly. The Court must however include two experienced African Constitutional judges preferably from South Africa – given its rich and relevant constitutional jurisprudence – to ensure independence, competence and enhance Court’s legitimacy. The Court’s role is to be two-fold:

• To certify the constitutionality of the constitution; (ensuring constitutionality of the draft constitutional text). This is to say that the Court should assess the extent to which the permanent Constitution promotes the rule of law, good governance and respect for human rights; and
• To certify that the final constitutional text meets the aspirations of the people of South Sudan as expressed in national dialogue conferences and the spirit, not necessarily the letter, of the R–ARCSS. This is to invite the Court to remind itself that the permanent Constitution meets with popular aspirations of the people of South Sudan with regards to the transition to constitutional democracy.

Second, the reconstituted transitional national legislature should act in full capacity as a constituent assembly, but it must not substantially depart from the text adopted by the National Constitutional Conference. The Constituent Assembly can and should not be reduced to a rubber stamp by merely urging it to rally behind the draft Constitutional Text passed by the National Constitutional Conference without exercising its due role over it.

Third and last, the National Constitutional Conference should focus on building consensus and necessary compromises, building on conversations and compromises agreed to during the national dialogue process. It must not purport to act like a referendum because its members will be appointed and lack legitimacy as with other constitution building institutions whose members will be appointed.

[1]    It is to be noted that the CDC is an invention of the parties to the R-ARCSS which they agreed in a workshop held in Juba on 28 May. The inaugural workshop was aimed at parties’ consensus on the bill to guide the constitution building process.

[2]    Inter-governmental Authority on Development (IGAD) ‘Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan’ (2018) para 6.11 <https://igad.int/programs/115-south-sudan-office/1950-signed-revitalized-agreement-on-the-resolution-of-the-conflict-in-south-sudan&gt; accessed 28 September 2021.

[3]    See Kevin Cope seminal papers discussing elite self-dealing in both interim and transitional constitution-making processes; K Cope ‘South Sudan’s dualistic constitution’ in D Galligan and M Versteeg (eds.) Social and political foundations of constitutions (2013) & K Cope ‘The intermestic constitution: Lessons from the world’s newest nation’ (2013) 53 Virginia Journal of International Law.

[4]    Y Ghai ‘The role of constituent assemblies in constitution making’ (2006) 1 <https://constitutionnet.org/sites/default/files/the_role_of_constituent_assemblies_-_final_yg_-_200606.pdf > accessed 27 September 2021

[5]    As above, 1.

[6]    In a conversation I had with her about this article and role of transitional institutions in a fragile context where peace building initiatives might need to be prioritised.

[7]    Under the R-ARCSS, the Council of States is comprised of 100 members representing states and Administrative Areas whilst the Transitional National Legislative Assembly is comprised of 550 members mostly drawn from belligerents and mainstream party.

[8]    Constitution building institutions include Constitutional Drafting Committee, National Constitutional Review Commission, Preparatory Sub-Committee, the National Constitutional Conference and we already know that vast majority of members of transitional national legislature (Council of States and the Reconstituted Transitional National Legislature ) are appointed.

[9]    Sec 27(1)(a-0) of the Constitution-Making Process Bill, 2011.

[10] Others refer to the Transitional Constitution, 2011 (as amended) as the John Luke Constitution who was a renowned constitutional lawyer who led the drafting of the Transitional Constitution.

[11] J Elster ‘The optimal design of a constituent assembly’ (2008) 5 <https://streaming-canal-u.fmsh.fr/vod/media/canalu/documents//cerimes/UPL55488_Elster.pdf&gt; accessed 27 September 2021).

[12] As above, 5.

[13] See generally; M Loughlin ‘The concept of constituent power’ (2014) 13 European Journal of Political Theory

About the Author:

Joseph Geng Akech is a South Sudanese human rights lawyer and doctoral researcher in constitution building. His doctoral thesis is entitled ‘foreign influence and the legitimacy of constitution building in South Sudan’. He is an alumnus of the LLM in Human Rights and Democratisation at the Faculty of Law, Centre for Human Rights, University of Pretoria. He can be reached on e-mail: josephgakech@gmail.com.