By Dr. James Okuk
May 8, 2011 (SSNA) — The Interim Constitution of Southern Sudan (2005) and the draft Transitional Constitution of South Sudan (2011) have already put it clearly that the new country is taking its path towards multi-party democracy not multi-people democracy. Is it possible to have a multi-party democracy in a country without political parties’ mandates and empowering? For me, it is not possible.
The very perception that the other political parties of South Sudan who are Non-SPLM are only brief-case entities, is exactly what the SPLM’s constitutional makers are trying to push forward with its so-called draft transitional constitution for South Sudan whose technical committee has been chaired by Mr. John Luk Jok, the Minister of Legal Affairs and Constitutional Development of the Government of Southern Sudan (GoSS).
But funny enough, the same wrong perception is being propagated by some Equatoria Diaspora members who have been circulating a memo for appending signatures of Southerners in the pretext of change-making on Luk’sdraft.
After I went through it critically, I found out that the Equatoria Diaspora Petition is mixing up different two things: the call for change in John Luk’s draft transitional constitution and the call for constituent assembly to draft the Constitution of South Sudan. But the irony is that the petition is being send to un-mandated Southern Sudan Legislative Assembly (SSLA), thus, trying to give it a fake power to decide on South Sudan draft constitution.
The petitioners have forgotten that the current SSLA members are only mandated for the old Sudan as they were elected for sub-regional Parliament in Juba. Hence, the SSLA is supposed to get dissolved altogether with the expiry date of the CPA in July 2011.
The petitioners seem to undermine the other Political Parties of South Sudan. They have forgotten very quickly that it was the unity of Southern Political Parties during the conduct of the referendum for Southern Sudan self-determination in 2010 – 2011that became the credit for birth of the new nation in the waiting. On the same note, they seem to ignore that the success of building of this nascent South Sudan nation will not materialize without unifying the diverse powers of South Sudan Political Parties (if the people of the new country are serious to nurture genuine multi-party democracy).
Both the SPLM and Equatoria Petitioners one-party’s state propagandists has failed to ask themselves these: Why have the other political parties of Southern Sudan been registered in the Sudan Political Parties Council if they were fake parties? Why the one-party state propagandists didn’t raise objection when these other political parties were registered legally in the first place? Why they didn’t object to the conference these political parties held together in Juba with the SPLM in October 2010 that gave birth to Political Parties Leadership Forum and its Secretariat? Who told them that this Forum was only consultative to help the SPLM leadership with ideas but not with decisions? Surely, this wrong perception from the SPLM and some Equatoria Diaspora Petitioners will be the real killer of multi-party democracy in South Sudan.
Also the petitioners did not know that there is nothing called "permanent constitution" in political science and arts’ authentic terminologies. Every human constitution on this mortal world is amendable, and thus, can never be "permanent" by whatever means. There could only be "unwritten constitution", which is practiced traditionally and orally in some cases.
Further the petitioners have not realized it that the right naming in the modern comparative politics now is not "Constituent Assembly", but "Constitutional Constituent Assembly”. And this does not come from a vacuum; it has to be constituted within certain procedures financed by the government of the day so that it becomes a "constituent." In other words, the "Constitutional Constituent Assembly" does not establish itself alone; it has to be established by an existing government.
Further more the petitioners failed to be pragmatic in their memo. They couldn’t understand it that going to the people at this moment (where we are only left with few weeks to the end of the CPA interim period) to ask them to elect the "Constitutional Constituent Assembly" is not practical at all. Thus, comes the question: who should adopt the Transitional Constitution of South Sudan, 2011; the SSLA (an institution of ICSS 2005) or the Political Parties Forum (an institution of South-South Unity)?
If you say it should be done by SSLA, then you will be faced with the legal question of legitimacy of the current members of the SSLA who were only elected on the basis of united Sudan, and not separated and independent South Sudan. And if you allow them to pass the draft interim constitution meant for the would-be sovereign country called South Sudan, then you will end up with an illegal interim constitution; illegal in a sense that it is like MPs of a different country legitimizing a constitution of another country. That is, elected MPs of a region of the Sudan called Southern Sudan legitimizing constitution of another country called South Sudan. A weird trial!!!
It is within the context of this weirdness that I see the relevance of the choice of South Sudan Political Parties Forum to legitimize the draft interim constitution on behalf of the people to avoid “constitutional vacuum” created by the situation of secession resulting from the referendum for self-determination of Southern Sudan. The transitional period is supposed not to be more than 18 – 24 months. After this, and when the procedures and financing of the elections of the "Constitutional Constituent Assembly" are finalized by the transitional government, then it will be the right time to give the people the power back to decide who should be their representatives in such an Assembly.
But even so, there is still a need for establishment of a non-partisan "Constitutional Review Commission" to prepare a draft Constitution that has to be presented to the Assembly for a final decision. But if the Assembly fails to agree on the proposed constitution, then it can be taken back to the people for the most supreme decision. This is only where the relevance of the "constitutional referendum" comes in to be seen as the last resort.
The petitioners seem to agree with the transitional constitution drafters on locking out the other political parties from power sharing. Nonetheless, they have forgotten that the power sharing was tacitly agreed in the Political Parties Forum in October 2010 where the SPLM in the person of Salva Kiir was given the top government job in South Sudan during the interim period. The other Political Parties were grateful enough to avoid greediness as they accepted sharing the rest of power privileges with SPLM who got the lion share of 50% for it alone to distribute amongst its chosen favourite VIPs).
The other Political Parties agreed to share 50%amongst themselves and then amongst their particular members. And of course, this power sharing percentages has to get disqualified by elections in 2013where every political party should get what it will earn from the votes of the people and its coalitions or alliance with other political parties.
In a recap, I see no much difference in Minister John Luk’s draft Transitional Constitution and the Petition of the Equatoria Diaspora, because both of them aim at empowering a wrong parliament to endorse their positions that has no respect for other political parties.
Dr.James Okuk is a PhD holder from University of Nairobi in the field of Political Philosophy. He can be reached at firstname.lastname@example.org