WHY SOUTH SUDAN NEEDS A CONSTITUTIONAL REFERENDUM?
By : Wani Michael
There have been a lot of arguments and counter arguments on different media platforms about the whole Permanent Constitution Making Process, with many arguing that the process originates from the Revitalized Peace Agreement, and others arguing that the process started way back in 2012 and before the 2013 conflict. Indeed, it is true that there is an entire chapter in the Peace Agreement that talks about the Permanent Constitution Making process, but that does not mean the entire process is starting afresh or the whole idea originated from the Peace Agreement. Of course, it is in the interest of the political parties to macro manage the whole process to suit their selfish interests.
I know many South Sudanese don’t and will never trust the current political leaders to singlehandedly write their constitution, because they mismanaged their pervious processes of writing both the Interim and the Transitional Constitution. I must underscore the fact that, South Sudanese people never participated in any of the previous Constitutional making processes; be it the Interim Constitution or the Transitional Constitution. There wasn’t any public participation or consultations on both documents. The political leaders either sat at Nyankuron Cultural Center, Home and Away Hotel, Parliament or SPLM house to decide on the document. The Transitional Constitution making process was marred by gross irregularities, intimidations, harassment, insubordination and many Members of Parliament confessed that they were put under extensive duress to urgently and unconditionally pass the Transitional Constitution of the Republic of South Sudan, 2011. The process was done hurriedly, without any proper, due, recognized and appreciated process, of course without consideration of legitimated concerns by the promulgators of the Constitution. I had an opportunity of interacting with some of the core framers of our current Constitution to understand their rationale and thinking on the whole document, but most importantly reflecting on the mistakes and whether anyone really understood or anticipated such a scenario of a ‘ONE MAN RULE’. Worst of it, placing most of the absolute powers with one individual who is drunk with and abuses power. No one seems to realise that the the spirit of Constitutionalism and rule of law disappeared in the air without any trace.
South Sudanese people must understand that the same people who wrote the Constitution in 2011, are the same people now wanting to rewrite the same Constitution. These are the same people who gave the President absolute powers to do whatsoever he desires without any checks and balances, and are the same people who surrendered ‘PEOPLE POWER’ to the President and his cartels. It is only in South Sudan where the President , the Executive and other political leaders act as if they are the Constitution itself and practice the doctrine; ‘ABOVE THE LAW’. The fundamental principle of ‘placing any government under civilian rule and power belonging to the people’, doesn’t exist in South Sudan. The Executive, headed by the President, has become the Legislature and the Judiciary. Our people don’t trust our courts, because they (legislature and Judiciary) lack integrity, independence and are all held hostage by the cartels and the executive.
Without any fear of contradiction, I must say that the Permanent Constitution Making process has already been hijacked by the political parties or leaders. They have created a situation and waged a huge propaganda that the Constitutional Making process is a political process, only meant for them to make such important decisions for the betterment of our country. I am here wondering whether, since 2011 there has been any critical and fundamental decision made by these selfish and greedy leaders, apart from waging endless wars on the people of South Sudan. On the proposed Constitutional Making Process Bill, the Parties have agreed to 55% representation of themselves in the key institutions meant to spearhead the whole process. The stakeholders who represent the rest of the larger population shall be represented by 45% , and we expect the outcomes of such a process to speak to our issues and the aspirations we all desire for. These include the fundamental undeniable demands for institutional reforms and complete overhaul of the dictatorial system.
As we speak now, the fundamental universal human rights and freedoms that needed to be guaranteed and protected by the State for an inclusive Constitutional making process are lacking and the civil space has been shrinking every single day. Our citizens live in fear and cannot speak out freely on matters that affect and concern them, because of fear of retribution or the unknown-known gunmen coming after them. People fear the blue house (notorious detention center) and other detention centers in the country. President Kiir and his cohorts are feared and celebrated like ‘small gods’ on earth, and nobody dares challenge this dictatorial regime. Those who risk to challenge his style of leadership are either locked in illegal notorious detention centers , are killed or have to seek refuge elsewhere. President Kiir has become like the most feared goliath in the Bible, and so South Sudan might need the King David to put down the mighty Goliath. The most amazing end about this story is that even the most feared people like the Goliath will always have their own miserable ending.
It is important to appreciate that Constitutional referendum will address two fundamental issues of legitimacy and ownership; I come from the school of thought which opines that POWER belongs to the people, and it is through them that such fundamental constitutional issues can be addressed and agreed upon. I would like to diffuse the narrative that Constitutions worldwide are written by well-educated lawyers or other professionals, and I must categorically state that the Constitution is written by the people because sovereignty of any country is vested on them. They all have absolute powers to determine and decide their own destiny, which unfortunately is not the narrative in South Sudan. Most of the illiterate people at the grassroots do not understand these issues, and therefore their participation is always limited. Although, the proposed Bill has talked about public participation extensively, my major concern is the end result of such consultations. Which forum will be provided for the people to validate their views and ideas collected from them? The narrative advanced by the promoters of the process, that the National Constitutional Conference (NCC) shall represent the rest of the people does not hold water, because the entire decision-making process of over 11 million people has been left in the hands of only a handful of people. Is this number a sufficient, reasonable and meaningful representation? Remember parties have already allocated themselves 55% representation, and in case of any voting on critical fundamental Constitutional issues, political leaders have already achieved their target of manipulating and deciding for everybody.
In all the discussions where some of us have participated, we have always raised the issue of Constitutional Referendum, but political leaders have decided shoot it down by giving fake reasons such as; not having enough money to conduct the referendum, not enough time for such a process, security challenges and other endless excuses. The fundamental reason why they refused to accept Constitutional Referendum is the fact that they fear facing the people due to poor and failed leadership. It will be difficult for them to manipulate the process, of course not forgetting the fact they failed to implement the resolutions of the National Dialogue and have learnt that the populace does not trust them anymore.
Congruently, it is through a Constitutional referendum where the people of South Sudan will have an opportunity to validate and have a final say on the Constitutional document. It is equally through them that critical and fundamental constitutional issues will be resolved, because power belongs to them. Remember, there is an APPOINTED and illegitimatised Parliament which only represents various political parties’ constituencies instead of the people.
Youth Representative to the National Constitution Amendment Committee (NCAC).