During the Interim Period prior to independence from 9 July 2005 to 9 July 2011, the Comprehensive Peace Agreement provided the basis for governance. During that time, two constitutions applied in South Sudan:{{1}}
- the Interim National Constitution, which applied and was the supreme law in both Sudan and South Sudan; and
- the Interim Constitution of South Sudan, which applied to the extent that it was not inconsistent with the Interim National Constitution.{{2}}
In addition, the Comprehensive Peace Agreement mandated an inclusive Southern Sudan Constitutional Drafting Committee to draft an Interim Constitution of Southern Sudan for adoption by the Transitional Assembly of South Sudan.{{3}}
The Interim Constitution of South Sudan provided for Southern Sudan to be founded on “justice, equality and human dignity” and to be “governed on the basis of a decentralized democratic system”,{{4}} with separation of powers.{{5}} The Interim Constitution of Southern Sudan elaborated three levels of government: the Government of Southern Sudan, the State level and local government.{{6}}
On 9 July 2011, upon independence, the Transitional Constitution of South Sudan came into force. It had been drafted without public participation by a technical review committee, whose approach was limited to reviewing the Interim Constitution of South Sudan for the purpose of eliminating all references to a united Sudan and adapting existing governance structures into institutions of a sovereign State.{{7}}
Upon the new Constitution’s promulgation, international commentators and local opposition warned that it concentrated too much power in the hands of the central government and the President.{{8}} Under the Transitional Constitution, the President is the Head of State, Head of Government, Commander-in-Chief of the Sudan People’s Liberation Army and Supreme Commander of all regular forces.{{9}} Among the President’s many powers and prerogatives, the President plays an important role in the appointment of numerous officials throughout most of the important institutions, including the Chief Justice.{{10}}
The Transitional Constitution affirms that South Sudan has ten States, each administered by elected governors, State cabinets and elected State legislative assemblies.{{11}} Each state has its own Constitution and may enact laws that conform to the Transitional Constitution.{{12}} However, under the Transitional Constitution the President is empowered to remove State governors and dissolve State legislative assemblies in the event of a crisis that threatens national security and territorial integrity.{{13}}
The Transitional Constitution is to remain in force until the adoption of a permanent Constitution. It establishes a process for the drafting and adoption of the permanent Constitution and it provides for a review process to this effect.{{14}} However, this process is far behind schedule. Furthermore, civil society was under-represented in the composition of the Constitutional Review Commission, sparking considerable criticism. Even after the government opened up the process, accusations of a lack of transparency persisted. On 25 February 2013, the Legislative Assembly enacted the Legal Affairs and Human Rights of the Council of States on Transitional Constitution (Amendment) Act, identifying the shortage of financial and human resources as the main reasons for the protracted delays and extending the mandate of the Constitutional Review Commission to 31 December 2014.{{15}}
[[1]]1. Comprehensive Peace Agreement, Power Sharing Protocol, S. 1.5.1.2.[[1]]
[[2]]2. Interim Constitution of Southern Sudan, [expand title=”S. 3(1).”]
Without prejudice to Article 3 of the Interim National Constitution, this
Constitution shall be the supreme law of Southern Sudan and shall have binding force on all organs and agencies of government and persons
throughout Southern Sudan.
[/expand][[2]]
[[3]]3. Comprehensive Peace Agreement, Power Sharing Protocol, S. 3.2.[[3]]
[[4]]4. Interim Constitution of Southern Sudan, [expand title=”S. 1(3).”]
Southern Sudan is founded on justice, equality and respect for human
dignity and advancement of human rights and fundamental freedoms; it is
governed on the basis of a decentralized democratic system in accordance
with this Constitution and the Interim National Constitution of the
Republic of the Sudan, 2005.
[/expand][[4]]
[[5]]5. Interim Constitution of Southern Sudan, [expand title=”S. 54.”]
The Government of Southern Sudan shall have the following organs:
(a) the Legislature;
(b) the Executive; and
(c) the Judiciary.
[/expand][[5]]
[[6]]6. Interim Constitution of Southern Sudan, [expand title=”S. 50.”]
Southern Sudan shall have a decentralized system of government with the following levels:
(a) the government of Southern Sudan level which shall exercise
authority in respect of the people and states in Southern Sudan;
(b) the state level of government, which shall exercise authority within
a state, and render public services through the level closest to the
people; and
(c) local government level within the state, which shall be the closest
level to the people.
[/expand] Also see International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 11.[[6]]
[[7]]7. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 12.[[7]]
[[8]]8. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 12.[[8]]
[[9]]9. Transitional Constitution, [expand title=”S. 97(3)”]
(1) There shall be a President for the Republic of South Sudan.
(2) The President of the Republic of South Sudan is the head of State and
Government, the Commander-in-Chief of the Sudan People’s Liberation Army and the Supreme Commander of all the other regular forces. He or she represents the will of the people, and shall exercise the powers vested in the office of the President by this Constitution.
(3) The incumbent elected President of the Government of Southern Sudan shall be the President of the Republic of South Sudan.
[/expand] and [expand title=”S.101.”]
The President shall perform the following functions:
(a) preserve the security of South Sudan and protect its territorial integrity;
(b) supervise constitutional and executive institutions and provide exemplary leadership in public affairs;
(c) appoint constitutional and judicial posts holders in accordance with this Constitution and the law;
(d) preside over the National Council of Ministers;
(e) declare and terminate a state of emergency in accordance with the
provisions of this Constitution and the law;
(f) initiate constitutional amendments and legislation and assent to and sign into law bills passed by the National Legislature;
(g) convene, summon, adjourn or prorogue the National Legislature in
consultation with the Speaker;
(h) confirm death sentences, grant pardons, and remit convictions or penalties according to this Constitution and the law;
(i) appoint Presidential Advisors;
(j) appoint ad hoc commissions and committees;
(k) establish independent institutions and commissions;
(l) confer honours;
(m) generally represent the Government and the people of South Sudan;
(n) declare war in accordance with this Constitution and the law;
(o) represent the State in its foreign relations, appoint ambassadors of the State and accept credentials of foreign ambassadors;
(p) direct and supervise foreign policy and ratify treaties and international agreements with the approval of the National Legislative Assembly;
(q) seek the opinion of the Supreme Court on any matter in connection with this Constitution;
(r) remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state that threatens national security and territorial integrity;
(s) appoint a state care-taker Governor who shall prepare for elections within sixty days in the state where the Governor has been removed or the state legislative assembly so dissolved in accordance with the provisions of this Constitution, the relevant state constitution and the law; and
(t) perform any other function as may be prescribed by law.
[/expand][[9]]
[[10]]10. Transitional Constitution, [expand title=”S. 133(1)-(2).”]
(1) There shall be established an independent Commission to be known as the National Judicial Service Commission.
(2) The structure, composition, functions, and terms and conditions of service of the members and employees of the Commission shall be determined by law.
[/expand][[10]]
[[11]]11. Transitional Constitution, Part XI, Chapter I.[[11]]
[[12]]12. Transitional Constitution, [expand title=”S. 3(3).”]
The states’ constitutions and all laws shall conform to this Constitution.
[/expand][[12]]
[[13]]13. Compare Interim Constitution of Southern Sudan, [expand title=”S. 103(2)”]
The President of the Government of Southern Sudan shall, inter alia,
perform the following functions:
(a) serve as First Vice President of the Republic of the Sudan in the circumstances set forth in Article 62 (1) of the Interim National Constitution;
(b) preserve the security of Southern Sudan and protect its territorial integrity;
(c) supervise constitutional executive institutions and provide
exemplary leadership in public affairs in Southern Sudan and in the
Republic of the Sudan;
(d) appoint holders of constitutional and judicial posts in accordance
with this Constitution and the law;
(e) preside over the Southern Sudan Council of Ministers;
(f) request, pursuant to Article 199 (2) of this Constitution, the
President of the Republic to declare a state of emergency in Southern Sudan or any part thereof;
(g) initiate constitutional amendments and legislations and assent to
bills passed by the Southern Sudan Legislative Assembly by signing such bills into law;
(h) summon, adjourn or prorogue the Southern Sudan Legislative
Assembly in consultation with the Speaker;
(i) confirm death sentences, grant pardons, and remit convictions or
penalties according to this Constitution and the law of Southern Sudan;
(j) appoint his or her advisors;
(k) appoint ad hoc committees and commissions;
(l) confer honours;
(m) generally represent the Government and the people of Southern
Sudan; and
(n) perform any other function as may be prescribed by law.
[/expand] and Transitional Constitution, [expand title=”S. 101(r)-(s).”]
(r) remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state that threatens national security and territorial integrity;
(s) appoint a state care-taker Governor who shall prepare for elections within sixty days in the state where the Governor has been removed or the state legislative assembly so dissolved in accordance with the provisions of this Constitution, the relevant state constitution and the law;
[/expand][[13]]
[[14]]14. Transitional Constitution, [expand title=”S. 200-201.”]
PERMANENT CONSTITUTION PROCESS
National Constitutional Review Commission
200. (1) The President of the Republic shall, after consultation with the Political Parties, civil society and other stake-holders, establish a National Constitutional Review Commission to review the Transitional Constitution of South Sudan, 2011.
(2) The Commission shall be established with due regard for gender, political, social and regional diversity of South Sudan in recognition of the need for inclusiveness, transparency and equitable participation. Each member of the Commission shall have the requisite competence and technical expertise and experience to contribute to fulfilling the mandate of the Commission.
(3) The Commission shall review the Transitional Constitution and collect views and suggestions from all the stakeholders regarding any changes that may need to be introduced to the current constitutional system of governance.
(4) The Commission shall be assisted by experts.
(5) The Commission shall conduct nation-wide public information programme and civic education on constitutional issues.
(6) The Commission shall adopt its own Rules of Procedures and shall aim to take decisions by consensus and when not possible shall take decisions by two-thirds majority of all its members.
(7) The Commission shall adopt and present the Draft Constitutional Text and an Explanatory Report to the President.
(8) The President shall review the Draft Constitutional Text and the Explanatory Report and return it to the Commission with comments.
(9) Upon review of the comments of the President, the Commission may consider additional changes and then present a Draft Constitutional Text and Explanatory Report to the Constitutional Conference for deliberation and approval.
(10) The Draft Constitutional Text and Explanatory Report submitted to the
Constitutional Conference by the Commission shall also be made available to the public through appropriate channels.
National Constitutional Conference
201. (1) Upon the presentation of the Draft Constitutional Text and Explanatory Report by the Commission, the President of the Republic shall, after consultation with relevant stakeholders, constitute and convene a National Constitutional Conference comprising delegates representing the following categories:-
(a) political parties;
(b) civil society organizations;
(c) women organizations;
(d) youth organizations;
(e) faith-based organizations;
(f) people with special needs;
(g) Traditional Leaders;
(h) war widows, veterans and war wounded;
(i) business leaders;
(j) trade unions;
(k) professional associations;
(l) the academia; and
(m) other categories to be determined.
(2) Each of the categories in sub-Article (1) above shall nominate its delegates and present them to the President for appointment to the National Constitutional Conference.
(3) The National Constitutional Conference shall:
(a) formulate its rules of procedure;
(b) deliberate on the Draft Constitutional Text;
(c) keep the public informed of its proceedings which shall be conducted in a transparent manner and open to the media; and
(d) approve and pass the Draft Constitutional Text by two-thirds majority of all the delegates.
(4) The Chairperson of the Commission shall be the Chairperson of the National Constitutional Conference. The Secretariat of the Commission shall serve as the Secretariat of the Conference.
(5) The National Constitutional Conference shall commence its work as soon as it receives the Draft Constitutional Text and the Explanatory Report from the Commission.
(6) The National Constitutional Conference shall approve the Draft Constitutional Text and the Explanatory Report and the Conference shall thereafter be considered dissolved.
(7) The Chairperson of the Conference shall present the approved Draft
Constitutional Text and the Explanatory Report to the President for further action.
(8) The President shall, upon receipt of the Draft Constitutional Text, cause the same to be tabled before the National Legislature, at least three (3) months before the end of the Transitional Period, for deliberation and adoption.
(9) The Speaker of the National Legislature shall thereafter present the adopted Constitution to the President for assent and signature.
[/expand][[14]]
[[15]]15. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 13-14.[[15]]