By Nhial Garang Madut
January 31, 2011 (SSNA) — When various newspapers here in Juba published Gordon Buay’s press release which condemned the decree of President Kiir for not including other political parties and civil society organizations, witch hunters began to attack him without addressing the points he raised in his release. Instead of criticizing his argument, some misguided individuals fired back arguing that “Gordon Buay is a trouble maker who dislikes South Sudan unity and peace”. Others went as far accusing him of being a tribalist as one of my friends confided to me in a bar arguing that “anybody against Kiir’s appointments is a tribalist”.
However, I disagreed with my friend’s conclusion that anybody who criticizes President Salva Kiir should be regarded as a “tribalist”. There are many logical reasons why such a labeling may not apply to arguments Gordon Buay pointed out in his public statement. Before analyzing Buay’s arguments point by point, the first thing any educated Southerner would not want to see is to live in a country where dissent and criticism are viewed as evils. People who want to build a democratic state must first embrace democratic principles such as freedom of speech prior to embracing their leader. The second significant issue that the people of South Sudan should take into serious consideration is the need for effective opposition to correct things. Experience from the rest of Africa attests that in countries where there is no multiparty system, corruption, civil war and poverty exist. Countries such as Botswana and Ghana that embraced multiparty democracy are in a good path towards economic prosperity.
The objections Gordon Buay raised could not be dismissed without proper thinking if we wish to build a democratic South Sudan. Setting aside whether the South Sudan political parties agreed last year to form an inclusive constitutional review commission as stated in the Final Communiqué, common sense has it that there is no national constitution that could be reviewed by one party alone. The need for involvement of other political forces in the review is something that even compelled the Minister of Legal Affairs and the Constitutional Development to say falsely that other political parties were represented. Prior to Gabriel Changson’s interview with Sudan Tribune, H.E. John Luk stated that Changson was a member of the Technical Review Committee representing other parties. However, Gabriel Changson denied that and stated that “what we agreed in our task force and in all political parties forum was that the committee would be inclusive. We discussed it several times and even yesterday on Saturday that each political party would have to nominate their representatives to the committee and the president accepted." Now that the version of John Luk is proven wrong, all those who jumped to conclusions earlier need to reexamine their viewpoints and begin addressing national issues through the lenses of rational thinking.
There is no question, after Gabriel Changson declined membership of the committee, that the membership of President Kiir’s Technical Committee will be dominated exclusively by the SPLM party members and associates. Although judges are most of the times considered “independent”, all judges Salva Kiir appointed as advisors are SPLM sympathizers who were appointed to the bench by the party and all of them voted for SPLM’s presidential candidate. Any argument that may be brought up that the appointed judges are “independent” will not hold any water or air of reality we have in South Sudan politics.
Looking at how many countries wrote or reviewed their constitutions, people may begin to wonder whether Salva Kiir Mayardit is a vivid reader of academic books to know for sure that a constitution of an independent country cannot be reviewed or written by one party. As Gabriel Changson correctly argued, involvement of political parties plus civil and faith-based organizations is a must in the 21th C. Lack of expression of diverse representation in President Kiir’s decree could be attributed to his failures to learn from conventions and experiences of other countries that achieved their nationhood before South Sudan. Indeed, there is a fact that cannot be challenged that President Kiir Mayardit has only two books in his office as the Economist Magazine’s journalist discovered last December, prompting questions of whether the president of the Government of South Sudan (GOSS) is academically aware of the planet he is going to explore after the final declaration of South Sudan independence. Those two books in his office are the “Holy Bible” and the “Forty Eight Laws of Power”. Unfortunately, neither one of them explains how different countries reviewed their constitutions.
If we follow the language of all parties’ resolutions of last year and use the term “commission” rather than “committee”, one may argue that a Constitution Review Commission is typically a body mostly created as an agency that convenes at set intervals to review the constitution and make proposals for amendments. What is important about such a vehicle for initiating constitutional amendments is that it cannot be used in a random or ad hoc fashion. Rather, a constitution review commission must be composed of interested groups such as civil society organizations plus political parties. For instance, the recent procedures of amending Kenyan Constitution should have served as a guide for Salva Kiir prior to forming a constitution review committee.
Following the establishment of the Constitution of Kenya Review Commission (CKRC) under the Constitution of Kenya Review Commission Act, the process of collecting views from the public on proposals to include in a new constitution for the country had begun in earnest. Various institutions and individuals participated in the review process and made proposals and submissions for inclusion into a new constitution. The Institute for Law and Environmental Governance (ILEG) with its mandate on environment and natural resource management sought to influence the constitutional provision on these issues. This was driven by the realization that the Kenyan constitution did not have adequate and substantive provisions on environment and natural resource management. One of ILEG’s trustees presented a memorandum to the Constitution of Kenya Review Commission on 6th February 2002. The memorandum dealt with the issue of environment, natural resources and sustainable development in the context of constitution making. It made extensive and far reaching proposals for entrenching environment and natural resource management in the Constitution.
After receipt of submissions and holding of hearings to receive views throughout the country, CKRC produced a draft constitution. The draft included a chapter on environment and natural resource management. Following the publication of the report, the Act provided that a national constitutional conference needed to be held to discuss the draft, make amendments and adopt it. The conference was convened in October but disbanded the same day it started deliberations. The conference only reconvened in March 2003 after the General elections of December 2002.
ILEG was represented at the conference by one of its trustees who was a delegate. To inform the delegates and enrich the discussions on the provisions in the draft constitution, ILEG in partnership with Kenya Land Alliance (KLA) produced the memorandum that had been earlier presented to the Commission. The publication titled "Environment, Natural Resources and Sustainable Development in Kenya’s Constitution-Making” also contained an audit of the provisions in the draft constitution as looked at against the proposals made in the Memorandum to CKRC and highlighted issues that the conference needed to consider so as to enrich the constitutional treatment of environment and natural resource management.
Lastly, it could be argued that those who initially condemned Gordon Buay for raising an awareness regarding constitutional review are intellectually naïve and lost touch with the realities of governing the people based upon participatory democracy where political parties and civil society organizations need to be involved in the review of the constitution. As Kenyan example attests, a constitutional review does require the involvement of many groups. In the case of South Sudan, women organizations, Diasporas, religious groups, pressure groups plus political parties need to be represented in the constitutional review commission. It is therefore advisable that President Salva Kiir should reverse his decree and call other political parties’ leaders to form Constitution Review Commission that will extent invitation to civil society organizations and the Diaspora.
NB: The author is a veteran Southern politician currently residing in Juba and can be reached at email@example.com.