What type of federalism should South Sudan adopt and why?

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

Summary

This article spotlights existing debates under the on-going constitutional design process on the type of federalism South Sudan should adopt. It is a debate with varying and potentially divisive perspectives. Dominant proposals in these debates are territorial and ethnic federalism. I join this debate with an open mind, and I therefore try to refrain from taking sides. This article thus tries to bring to fore, the underlying arguments in both perspectives and makes three recommendations to break the impasse. The first option is to conduct a referendum for the public to decide while the second calls for a scientific comparative study on performances of both territorial and ethnic federalism. The third calls for open and transparent public debates on the type of federalism South Sudan should adopt.

Introduction

One of the thorny issues yet to be settled under the constitutional design process of South Sudan is the form of federalism to be adopted under the ‘permanent’ Constitution. The Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) only stipulates that South Sudan shall be governed on the basis of federalism. It leaves the form of federalism to be decided during the constitutional design process. This raises the question; what form of federalism should South Sudan adopt under the ‘permanent’ Constitution and why? The answer to this question is not easy. If it were, the authors of the R-ARCSS would certainly have dealt with it during the negotiation process. I do not claim to offer solutions to this question, either. I simply try to illuminate and broaden prevailing conversations among South Sudanese that federalism is indeed a potential dilemma in the constitution building process.

Whenever it is used here, federalism refers to a system of government in which power is shared within autonomous constituent parts of a State and which allows greater autonomy to those States. Federalism comes from Latin foedus, which means covenant among tiers of a government. It is a complex system of governance that requires careful study to avoid what Professor Yonatan Fessha calls the ‘original sins of federalism’ in referring to the situation in his home country, Ethiopia. It is said that federalism can stem from two sources – coming together or holding together. It is also instructive to note that debates on federalism are not new, they predate South Sudan’s independence and were only crystalised under the R–ARCSS. But this blog article is not about federalism per se, rather I focus on the impasse of choosing the model of federalism for South Sudan.

The arguments

The first argument pitches ethnic federalism as the ‘best’ governance model for South Sudan. Ethnic federalism may be characterised as a system of government in which ethnic groups or nationalities govern themselves as a people in their own territory. Ethiopia is popularly known and legally constituted as an ethnic federation.

Opponents argue that ethnic federalism might not be suitable not least because it has ostensibly failed in Ethiopia (where it has been experimented) but also because it might complicate an already divided society in South Sudan. They cite Kokora (Bari word for division) as a possible repeat risk including subsisting toxic nationalism that might undercut much needed national cohesion and unity.

Proponents on the other hand contend that South Sudan should adopt ethnic federalism because the country is already ethnically set up. This argument finds favour from the impression that the country’s local administrative units – Bomas, Payams and Counties – are almost already ethnically set up. In other words, some of these local government units are made up of almost homogenous ethnic groups. This is somewhat the same in some States with only one ethnic group.

However, constitutionally (in terms of the Transitional Constitution), South Sudan is governed under a decentralised system of government which might change to a federal system as stipulated under the R-ARCSS. It is important to note that the country is multi-ethnic, multi-cultural and multi-linguistic comprising of 64 nationalities. Some of the ethnic groups are hostile to each other whilst others share common dialect such as the Bari speakers in Central Equatoria State, which adds to the complexity of implementing ethnic federalism.

The second dominant argument supports territorial federalism which is a form of governance that establishes federal states on the basis of territory rather than ethnic make-up. Proponents of this perspective argue that South Sudan is in fact already territorially federal. They say that the current 10 States except for certain areas with a special governance framework (the Administrative Areas) could represent an option to build territorial federalism.

Arguments expose complexity of federalism

If there is one thing emerging from these debates, it is that no argument wins squarely. There are pros and cons on both sides. First, ethnic federalism, for instance, might intensify competition in resource distribution where resource-rich States might feel uncomfortable sharing with those without. Second, ethnic tensions are already high and they might even become more pronounced under ethnic federation. Third, ethnic federalism might  weaken a federal government and could introduce risk of secession as it has been threatened in Ethiopia by estranged groups.

All these complexities notwithstanding, debates on federalism are not new. For instance, historian Douglas Johnson writes extensively on it. He in fact recounts how federalism was a key demand of various political parties prior to independence of the Sudan in 1956 and further crystallised under the 1972 Addis Ababa Agreement.[1] Similarly, the R-ARCSS commits the country to a federal and democratic system of government that reflects the character of South Sudan. But neither of these historical and contemporary debates settle the type of federalism for South Sudan. Since this question cannot be glossed over under the permanent constitution building process, I propose three options to settle the debate.

Some suggestions for resolving the impasse

First, let there be public conversation on federalism as a constitutional question. More recently, conversation and dialogue on federalism were supported by the International Institute for Democracy and Electoral Assistance (International IDEA) under the auspices of the Ministry of Federal Affairs of the Revitalised Transitional Government of National Unity (RTGoNU). The aim of such dialogues was to provide an avenue for South Sudanese political and constitutional actors to engage with various forms and experiences of federalism. But due to unknown reasons, these dialogues were discontinued but one hopes they resume soon.

Second, it may be democratic to consider a constitutional referendum in which South Sudanese freely vote on the type of federalism they wish to be governed under. Admittedly, a referendum has its own limitations including possible gerrymandering by the majorities.

Third, the Ministry of Federal Affairs should commission scientific studies on various forms of federalism to give people a chance to make an informed choice.

Conclusion

The question of federalism is a difficult one. What I tried to do in this article only highlights the inherent dilemma in choosing the ‘suitable’ form of federalism within the constitutional design framework. My view is that the form of federalism eventually adopted may be the break or make factor of the ‘permanent’ constitution. It should therefore be subjected to careful and transparent popular debate.

[1]   D Johnson ‘Federalism in the history of South Sudanese political thought’ (2014) Rift Valley Institute 6.

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