By Dr. James Okuk
May 11, 2011 (SSNA) — “So by insisting that the current SSLA is not elected in an independent South Sudan, the DTCSS should be shelved until independence comes, presidential and parliamentary elections take place and a new SSLA is constituted?”, a Southern intellectual wrote to me. No, my answer cannot be affirmative to his question because there is something incorrect in its formulation.
My point is this, if John Luk’s DTCSS ends up being ratified by unmandated SSLA, we will start the new nation on illegitimate wrong path. We will swear-in, as a consequence, an illegitimate government with all its branches (legislative, executive and Judiciary).
Yes, it should be the people to come the top to resolve the constitution vacuum that is about to happen in South Sudan. But this is not practical to happen in the short term (two months) a head to the new country. It can only happen in long term (2 years and above) when there is enough time to call for elections in the new independent country rather than depending on the outdated elections of the old Sudan with its region of Southern Sudan.
Notwithstanding, the general elections in the new country need to have constitutional and institutional bases for their legitimacy. But how do we create these two bases:
a) By empowering South Sudan Political Parties in the context of multi-party democracy to act on behalf of the people just for the sake of bridging the constitutional vacuum that will occur once the independence of South Sudan is declared. As South Sudan Political Parties gave Salva Kiir Mayardit the mandate to be the President of the new independent country, so shall they also ratify the Draft Interim Constitution of South Sudan (DICSS) to legitimize the mandated President and the government that he is going to form with all its branches.
b) By calling for Constitutional Constituent Assembly under the DICSS within 18 – 20 months to make a constitution for the New Country served by Non-Partisan Constitutional Review Commission. For example, Prof. Yac Pal Gai could be contracted to do this service like what he did in Kenya some few years back. Once the Constitution of South Sudan (CSS) is enacted, then under its mandate, the first general elections should be held in South Sudan to bring it the first elected Parliament in the country.
Thus, for me, there is no need for any Transitional Parliament in South Sudan during the interim period (from July 2011) until the first general elections take place in May 2013. This will save us from the clash that might occur between the SSLA and the Constitutional Constituent Assembly because each of them will claim that it has the legitimacy to be the voice of the people. It will also save us from double role that might be played by the current SSLA which John Luk’s DTCSS and Equatoria Petioners want to transform into National Parliament of the new country, and that of the Constitutional Constituent Assembly. After all history has already taught us that a country can be ran transitionally for a shorter period without a parliament until a problem is fixed.
For sure, the Equatoria Diaspora Petition is asking for crucial amendments of John Luk’s DTCSS but the Petitioners are trying to spoil the good work by mandating the unmandated SSLA to consider the amendments and ratify the DTCSS. Also the Petitioners do not value the role that need to be played by multi-political parties in South Sudan.
For me, this is like good means being spoiled by bad end. It is like asking a parliament of a foreign country to ratify the constitution of another country. In other words, it is like asking the SSLA to forget about political parties in South Sudan. Thus, both John Luk’s draft constitution and the Equatoria Diaspora Petition are like asking Nigeria Parliament to ratify the constitution of the independent and sovereign South Sudan. This is weird and illegitimate because it is well known that the SSLA is an interim and sub-regional one whose life span and mandate is dictated by the CPA’s era (January 9, 2005 – July 9, 2011) in the united Sudan and nothing beyond.
What I am saying here is not akin to democracy if it is a multi-party democracy as stipulated in the ICSS and DTCSS. This type of multi-party democracy is defined as rule of the people through their political parties who nominate representatives to be elected for parliamentary or executive posts in the government. Whether the political parties are unknown or known, briefcase or family clubs or not is a different matter because what matters is to have political parties to make multi-party democracy meaningful and essential. Even if many of them are weak at the moment it should be understandable due to the situation of the new country. With encouragement and empowering they can improve and become strong pillars for growth and maturity of multiparty democracy in the Republic of South Sudan.
In recap, if the current members of the SSLA were elected for an independent South Sudan, then it would have been right and legitimate for them to deal with the DTCSS and ratify it in the context of multi-party democracy. Alas! The SSLA is not an institution of independent South Sudan. Thus, let’s try short interim period in South Sudan without any need for a transitional Parliament.
Dr.James Okuk is a PhD holder from University of Nairobi in the field of Political Philosophy. He can be reached at email@example.com