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Presentation by Mark Deng (Doctoral researcher, Australia)
Contact magnus.killander@up.ac.za

Constitution Building in Conflict-Ridden South Sudan: a Prerequisite for Achieving Peace and Long-term Political Stability

Abstract

Following the vote for independence in 2011, the Transitional Constitution of South Sudan 2011 was enacted to govern the newly founded nation during the transitional period. Drafted in haste and in a non-inclusive manner, however, the Transitional Constitution failed to provide a basis for the anticipated democratic system of government for the country- as it sought to concentrate power in the national executive. This constitutional failure has resulted, in part, in the intractable political instability in South Sudan.

This thesis is an attempt to address the constitutional failure in South Sudan. It highlights the problems in the Transitional constitution and the effects they have had on the country. It then proposes a roadmap to a permanent constitution of South Sudan. The roadmap involves three steps: namely, the election of a constitutional assembly to lead the drafting process, a national constitutional conference as a platform to debate a draft constitution, and a constitutional referendum as a means through which the people of South Sudan can give their blessing to the constitution.

Indispensable to this higher-law making exercise in South Sudan is the concept of federalism, which, in fact, is a popular demand. Federalism would help ensure an effective division of powers between the national government and the state governments. Under a federal system, for example, the Sudan People’s Liberation Movement (SPLM) led government can never have powers that allow it to interfere in the states politics and undermine the autonomy of the state governments. However, the success of a permanent constitution and the overall improvement in the governance system in South Sudan will be contingent on the demilitarisation of the SPLM. That is, the SPLM will need to be transformed into a democratic political institution in order to be in a position to uphold and enforce the constitution accordingly.

The thesis argues that this reform package ought to be undertaken simultaneously with the ongoing search for peace in South Sudan. For it would be difficult for peace to take root in South Sudan if the current power structure under the Transitional Constitution and the militarised nature of the SPLM remain unchanged. This makes it abundantly clear that constitutional reform and the demilitarisation of the SPLM, however unpopular they might be for the government, are prerequisites for achieving durable peace in South Sudan. Peace could take root in South Sudan only if it relies on accountable political institutions.

The study utilises both a descriptive method (analysing historical and contemporary political issues in South Sudan) and an applied work, involving public law in action. Said another way, it draws on theoretical insights from the fields of constitutional design and comparative constitutional transition.

Location Centre Classroom (Room 2-2.1, Law Building, UP Campus)

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