MEMORANDUM ON DRAFT TRANSITIONAL CONSTITUTION OF ROSS, 2011
From Equatoria Sudanese Community Association in United States of America
FRIDAY – 6TH MAY, 2011
south Sudan:
Submission for action by the southern sudan legislative assembly and members of parliament on the Review and amendment of transitional provisions on permanent constitution process, AND establishment, composition and functions of executive, legislative and judicial organs of the government in the draft transitional constitution of the republic of south sudan, 2011.As South Sudan is fast approaching independence on 9 July 2011, ESCA and South Sudanese Diaspora, resolved to urge the Members of Parliament in the Southern Sudan Legislative Assembly (SSLA) in particular, all the Ministers in the cabinet of the Government of Southern Sudan (GOSS), and the President of the GOSS, to amend all substantive transitional provisions in order to bridge critical omissions, many as they are, identified in the Draft Transitional Constitution of ROSS, 2011, which we have enumerated in this Memorandum for your immediate actions.
Provisions in the Draft Transitional Constitution of ROSS, 2011
The 2005 Interim Constitution of Southern Sudan (the 2005 Interim Constitution), the 2005 National Interim Constitution and the Comprehensive Peace Agreement (CPA) provide the basis for the Government of South Sudan, established in 2005. However, following the referendum held in January 2011, South Sudan will gain independence from Sudan on 9 July 2011. On 21 January 2011, the GOSS President issued a decree appointing a Technical Committee to Review the Interim Constitution of Southern Sudan. The committee was tasked with drafting a 2011 Interim Constitution of South Sudan, based on the Interim Constitution of Southern Sudan, 2005.
1/Transitional Period
The resultant Interim Constitution of ROSS, 2011, titled “Draft Transitional [1] Constitution of ROSS, 2011”, is scheduled to be approved by the Southern Sudan Legislative Assembly for adoption on 9 July 2011. As it stands, the Draft Transitional Constitution of ROSS, 2011 without significant amendments, will be in place for an undefined transitional period, until a permanent constitution comes into force.
We strongly urge that a transitional period be defined (2 years), which ends with the coming into force of the permanent constitution following a vote by the people in a referendum to enact the constitution.
2/Permanent Constitution Process (Chapter II, page 86)
The key critical observations of particular concern, in the draft Transitional Constitution of the RSS, 2011, are the provisions for permanent constitution making:
2/1There is no provision for a Constituent Assembly, one elected by the people, anywhere in these provisions as required to initiate and have oversight of the process for writing the permanent constitution
2/2There is no provision for enactment of the permanent constitution (as the supreme law of the land) by a vote of the people in a referendum to bring the Permanent Constitution into force
2/3 The provisions imply that the current SSLA (which came into being before the Referendum 2011) will become the National Legislature, will also be the one to pass the Permanent Constitution to bring it into force, and not the vote of the people in a referendum as happened in the recent referendum vote on secession leading to South Sudan becoming sovereign and independent.
2/4 The process defining the legal basis for permanent constitution making is undemocratic, Executive and not people-driven, specifies another presidentially appointed Constitutional Review Commission, and focuses on reviewing the “Transitional Constitution of ROSS, 2011” to make it permanent, not by popular enactment in a constitutional referendum by a sovereign people, but by a pre-Referendum 2011 SSLA,
2/5 The “Permanent Constitution Process” should not be about “reviewing or the technical amendment of the “Transitional Constitution of ROSS, 2011” by yet another Constitutional Review Commission, rather it should be about drafting and writing a new Permanent Constitution of the Republic of South Sudan by a Constituent Assembly which should drive the permanent constitution making process and the enactment of the constitution by a referendum vote to bring it into force as the supreme law of the land.
We are cognisant that the existing body of practice and knowledge of constitution making, accumulated over many hundreds of years and in different parts of the world, present compelling evidence that executive-driven as opposed to democratic people-driven processes for permanent constitution making result in unnecessary concentration of power in the hands of the Executive branch of Government, this should be avoided.
3/ Required amendments to provisions on Permanent Constitution Process
We therefore strongly urge that permanent constitution process must be amended to provide for people-driven processes, through a constituent assembly (whose specific mandate is to promulgate a permanent constitution), and a referendum in which all the people vote to approve of the constitution as the supreme law of the land, should be the only legal basis for the enactment of the constitution and its coming into force by the sovereign authority of the people.
We believe the people are sovereign, not the Constituent Assembly, nor the President nor any other Legislature given birth to by the constitution and the Government derives its authority from the people and from the constitution that is enacted and given force of law by the sovereign authority of the people, on the fundamental premises that the people and not the Government should own the process of writing and promulgating the permanent constitution as the law that would limit the powers of the government, the President and Executive branch of Government should not therefore drive constitution making process, nor the appointment of the individuals to write the text of the constitution, and our country should not therefore by design, be denied a democratic constitution making process as currently proposed by the outgoing Constitution Review Technical Committee.
To this end, we strongly urge that the provisions on Permanent Constitution Process should be amended by the SSLA to provide for the following:3/1 A constituent assembly, elected in a free and fair election, and not a constitutional review commission appointed by the President, drives the constitution making process
3/2 A constituent Assembly should be responsible for selection of experts and their endorsement for appointment to draft the text of the permanent constitution
3/3 Plenary of the Constituent Assembly should be responsible for debating the content, provisions and stipulations of the constitution
3/4 Constituent Assembly to mandate a public consultation process on the constitution, including through a constitutional conference to take the views of all political parties, civil society, members of the public, including parties without representation in the assembly, and factoring in any proposed amendments and views to the draft permanent constitution
3/5 The Constituent Assembly promulgates and passes the final draft constitution for adoption and recommends it for a vote in a constitutional referendum
3/6 YES vote in the referendum enacts the constitution and brings it into force, which at this point brings the transitional period to an end.
3/7 Constituent Assembly dissolves and election of new institutions occurs (President, Legislatures, Governors) under new permanent constitution
We believe that the model of a Constituent Assembly and a Constitutional Referendum, lends itself for a national appeal to opposition parties and those who have rebelled against the Government to give chance to an inclusive Permanent Constitution Process in which all parties participate, each according to their true weight in the Assembly, to define what system of Government we want for our country and nation in the supreme law of the land, and what limitation and powers should be exercised by the government through the constitution of the Republic of South Sudan.
This also fulfills a resolution of the recent Equatoria Conference 2011, 14-16 April, which resolved that:
The interim constitution of the Republic of South Sudan should provide for making of the permanent constitution by a Constituent Assembly, including through public consultations, and its coming into force by vote of the people in a referendum.We strongly urge that in PART SIXTEEN, CHAPTER 1 of the Draft Transitional Constitution 2011, Article 199 (2), which states that “This constitution shall remain in force until the adoption of a permanent constitution”, should be amended forthwith to indicate the method of its ratification stated as follows:
Article 199 (2): This constitution shall remain in force until the enactment of a permanent constitution by a vote of the people in a constitutional referendum.
Furthermore, the last paragraph of the PREAMBLE to the Draft Transitional Constitution of ROSS, 2011, should be consistent with amendment of Article 199 (2) and amended to read as follows:
Do hereby, through this Southern Sudan Legislative Assembly, amend the Interim Constitution of Southern Sudan, 2005, which shall be adopted and hereafter referred to as the “Transitional Constitution of the Republic of South Sudan, 2011,” and shall be the supreme law by which the independent and sovereign South Sudan shall be governed during the Transitional Period as provided for in this constitution, and undertake to abide by, respect and defend it.
4/ Federal Constitutional RepublicTo the surprise of many, the Draft Transitional Constitution of ROSS, 2011, by a deliberate omission throughout PARTS (ONE –to- SIXTEEN), is silent on provisions for the birthing of a Federal Constitutional Republic, and to transform the current decentralised system of Government into a fully functional federal system that’s formally designated as such.
4/1 Republic of South Sudan and its Territory (PART 1, page 12)
Article (1) (3) makes a needless provision in the constitution for the countries bordering South Sudan, such that the potential proliferation of any bordering country into more states would necessitate a needless amendment to the Constitution of the Republic of South Sudan for consistency. We urge that Article (1) (3) should be deleted and serves no tangible benefit or purpose.
4/2 Commitment to a Federal Democratic system (PART 1, page 12)
In order to strengthen South Sudan’s commitment to a Federal Constitutional Republic, Article (1) (4) should be amended to state that:
“South Sudan shall be governed on the basis of a decentralized federal democratic system and is an all embracing homeland for its people. It is a multi-ethnic, multi-cultural, multi-lingual, multi-religious and multi-racial entity where such diversities peacefully co-exist.”Consistent with the above recommended amendments to the provisions of PART 1, Article (1) (4), the Schedules (A) (1-58), (B) (1-42), (C) (1-34), (D), and (E) covering powers of the National and State Governments, Concurrent and Residual powers, and conflict resolution should be amended to provide for powers that are consistent with a Federal system of Government, and the establishment of an independent judiciary to exercise and uphold the Rule of Law through a Constitutional or Supreme Court as the case may be on matters of conflict in respect of concurrent powers or provisions of National and State laws.
To this end, and in order to strengthen the Republic of South Sudan’s commitment to the rule of law, we strongly urge that the provisions of Schedule (E) should be amended forthwith to state that:
“If there is a contradiction between the provisions of the National law and a state law on the matters that are concurrent, the National law shall prevail to the extent of the contradiction as established by a ruling of the Constitutional Court”
4/3 The Bill of Rights (PART 2, page 14)
We strongly urge and submit to the Speaker, Deputy Speaker and members of Southern Sudan Legislative Assembly (SSLA), and Ministers of the Government of Southern Sudan to strengthen South Sudan’s commitment to human rights by including all economic, social and cultural rights as enforceable human rights in South Sudan’s Interim and Permanent Constitutions. In this regard, we urge that the Members of Parliament should peruse the submission by Amnesty International and AMDISS on amendments for inclusion in the Constitution of all Economic, Social, and Cultural Rights that are enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples Rights (ACHPR), to which Sudan became a signatory State party in 1986.
4/4 The Decentralised System of Governance (PART 3, Chapter III, page 25)
In reference to the provisions for the Levels of Government, we strongly urge that Article (47), should be amended to state that:
South Sudan shall have a federal system of government with the following levels:
(a) the Federal level which shall exercise authority in respect of the people and the states;
(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.
The usage of the term National Government, should be interpreted to mean Federal Government or replaced by it (preferred) for consistency, such that the terms National and Federal are interchangeable and mean the same wherever it occurs throughout the text of the Transitional Constitution of ROSS 2011, (PART THREE, 48 (1) (b), 48 (2), 49 (1) (a), et al).
4/5 The National Government (PART FOUR, Chapter III, page 27)
In reference to the provisions on the National Government, Establishment of the National Government, we strongly urge that Articles (50, 51, 52, 53, et al), should be amended to use the term Federal in replacement for the term National throughout wherever it occurs in the text of the Transitional Constitution of ROSS, 2011.
4/6 The National Legislature (PART FIVE, Chapter I and Chapter II, pages 28-41)
In reference to the provisions on the National Legislature, Establishment and Composition of the National Legislature, we strongly urge that Articles (54 - 94, et al), should be amended to use the term Federal in replacement for the term National throughout wherever it occurs in the text of the Transitional Constitution of ROSS, 2011.
4/7 Term of the National Legislature (PART FIVE, Chapter I, page 33)
In reference to the provisions on the Term of the National Legislature, we strongly urge that Articles 66 which states that “The term of the National Legislature shall be four years from July 9, 2011”, should be amended and stated as follows:
The term of the Federal Legislature shall be for the duration of the Transitional Period from July 9, 2011 as defined in this constitution”
4/8 Minority Leaders (PART FIVE, Chapter I, page 34)
In reference to the provisions on the Minority Leaders, we strongly urge that Articles 71 (1), (2), and (3), should be amended to use the term Opposition in replacement for the term Minority throughout wherever it occurs in the text of the Transitional Constitution of ROSS, 2011.
The formative structures, establishment, composition of the federal legislative institutions (such as Legislative Assembly and Council of States) and the provisions relating thereto in Chapters I and II, of the Transitional Constitution of ROSS 2011, are still subject to further analysis to debate and recommend amendments. Similarly, positions on Abyei, appointment of deputy ministers, etc.
Composition of the Council of States (PART FIVE, Chapter I, page 30)'The draft constitution is ambiguous. It is a hybrid between a federal constitution and a unitary constitution. It alludes to a decentralised system of government but there is too much power in the presidency.
There are provisions for two legislative chambers, the 'Council of States' and 'National Assembly'. However, there is no clarity about which of the two is the 'Upper House of Parliament' or the 'Lower House of Parliament'.
Recommendations are:
'A decision needs to be made about whether it is a federal or unitary system of government. A hybrid constitution will undermine the relationships between the presidency and state governors, national government and state governments.
There should be clarity about which of the two legislatures is the upper or lower house of parliament. The relationship between the two houses of parliament should be clearly defined.
If the adoption of a bicameral legislature through the addition of the Council of States is advocated, then composition and its competences (roles) as currently defined fail to adhere to the contemporary reasons for adopting a bicameral legislature. The rationale for a modern bicameral body is to:
·Offer states equal representation when the population is diverse
·Offer a second perspective on bills before the legislator.
It is not clear that the Council of State as defined in the DTC2011 meets the above requirements, and its composition falls short of being democratically elected by the people.
· Article 58 (a) is nothing short of political accommodation
· Article 58 (b) is granting excess power to the President to determine representatives on behalf of the people.
· The competences of the Council appear to be duplicates of that of the National Legislative Assembly.
· The Council also appears to encroach on the Executive branch by assuming some duties that would traditionally be those of the National Council of Ministers. This is evident in Articles 59 (b), (c), (d), and (e)
· Some of the competencies 59 (a), (e), (f), and (g) are ephemeral and finite in nature. These competencies could be executed through committees appointed by the executive branch or through law for specific purpose and duration.
·The Council of States appears effectively to have the powers to legislate and execute all within the absolution control of the executive, which is unprecedented.
It is our recommendation that the current SSLA should not be expanded to include MPs from Khartoum, and no need to create a Council of States either at this point in time, but have and provide for a shorter Transitional Period of 2 years after which new institutions will created to come into force with the enactment of a permanent constitution by a referendum vote. And if there's a strong case for a bicameral Legislature during the Transitional Period, then the Council of States must:
·Be democratically elected
·Its purpose and roles must be clearly and well defined
4/9 The National Executive (PART SIX, Chapters I, II, and III, pages 42-50)
In reference to the provisions on the National Executive, Establishment, Composition and Powers of the National Executive, we strongly urge that Articles (95 - 122, et al), should be amended to use the term Federal in replacement for the term National throughout wherever it occurs in the text of the Transitional Constitution of ROSS, 2011.
And Article 97 (2) on page 42, should be amended to use the term “South Sudan Army” in replacement for the term “Sudan People’s Liberation Army”,
4/10 Tenure of the Office of the President (PART SIX, Chapter II, page 43)
In reference to the provisions on the Tenure of the Office of the President in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 100 which states that “The tenure of the Office of the President of the Republic of South Sudan shall be four years, commencing from July 9, 2011”, should be amended and stated as follows:
The tenure of the Office of the President of the Republic of South Sudan shall be for the duration of the Transitional Period from July 9, 2011 as defined in this constitution”.
However, we also strongly urge that the Permanent Constitution of the Republic of South Sudan should provide for a two term limit of four years each for the tenure of the Offices of the President, Vice President, and Governor.
4/11 Functions of the President (PART SIX, Chapter II, page 43)
In reference to the provisions on Functions of the President in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 101 (c), (g), (n), (r), and (s), should be amended to state that the President shall perform the following functions:
(c)appoint constitutional and judicial posts holders, subject to vetting and confirmation of appointments by simple majority of the legislature or by its relevant and specialized committees as appropriate, in accordance with this Constitution and the law;
(g) convene, summon, adjourn or prorogue the National Legislature only during an existing state of emergency, in consultation with the Speaker;
(n)declare war, subject to consultations with and approval of the legislature, in accordance with this Constitution and the law;
(r) remove a state Governor and adjourn or prorogue a state legislative assembly, only under an existing state of emergency and subject to consultations with and approval of the state legislative assembly, in the event of a crisis in the state that threatens national security and territorial integrity, in accordance with the provisions of this Constitution, the relevant state constitution and the law;
(s)appoint a state care-taker Governor, only under an existing state of emergency, and subject to consultations with and approval of the federal or state legislative assembly, who shall prepare for elections to replace a state Governor within sixty days in the state where the Governor has been removed, in accordance with the provisions of this Constitution, the relevant state constitution and the law;
4/12 The Police Service (PART TEN, Chapter II, page 63)
In reference to the provisions on the Police Service in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 155 (1 - 7), should be amended (as underlined) to state that:
(1)There shall be a Police Service at the Federal and State levels, which shall be a decentralized professional service.
(2)The mission of the Police Service shall be to:
(a)prevent, combat and investigate crime, maintain law and public order, protect the people and their properties; and
(b)uphold and enforce this Constitution, or the State Constitution, and the law.
(3)The Police Service shall be organized at the Federal and state levels; its organization, structure, functions, powers, terms and conditions of service shall be regulated by law.
(4)The Police Service at the Federal level shall be headed by an Inspector-General of Police appointed by the President after approval of the Council of Ministers upon the recommendation of the Minister in charge.
(5) The Police Service at the State level shall be headed by an Inspector-General of Police appointed by the Governor after approval of the State Council of Ministers upon the recommendation of the State Minister in charge.
(6)The Federal and State Police Services shall be responsible for the maintenance of professional standards and the recruitment, training, deployment, and transfer of police officers throughout their respective jurisdictions in South Sudan, in accordance with Federal and State laws.
(7) The Federal and State Police of South Sudan shall be governed by the Federal and State Constitutions respectively and the law. The Police shall respect the will of the people, the rule of law and order, civilian authority, democracy, human rights, fundamental freedoms and execute judicial orders.
(8) The Police at the Federal level and their counterparts at the state level shall coordinate, cooperate and assist each other in the discharge of their functions and duties, and to that end, shall recommend, through their respective authorities to the President of South Sudan the establishment of such necessary mechanisms.
4/13 The Prison Service (PART TEN, Chapter II, page 64)
In reference to the provisions on the Police Service in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 156 (1 - 7), should be amended (as underlined) to state that:
(1) There shall be a Prisons Service at the Federal and State levels, and it shall be a decentralized professional service.
(2) The mission of the Prisons Service shall be correctional, reformative and rehabilitative. It shall respect the will of the people, the rule of law and order, civilian authority, democracy, human rights and fundamental freedoms.
(3)The Prisons Service shall be organized at the Federal and the state levels.
(4)The Prisons Service at the Federal level shall be headed by a Director-General appointed by the President after approval of the Council of Ministers upon the recommendation of the Minister in charge.
(5) The Prisons Service at the State level shall be headed by a Director-General appointed by the State Governor after approval of the State Council of Ministers upon the recommendation of the State Minister in charge.
(6)The Federal and State Prisons Service shall be responsible for the maintenance of professional standards and the recruitment, training, deployment, and transfer of prison officers throughout their respective jurisdictions in South Sudan, in accordance with Federal and State laws.
(7) The functions of Federal and State Prisons Services shall, inter alia, be to manage, operate and maintain the prisons of South Sudan, and to administer the internment and care for the health and general welfare of prisoners and inmates in their respective jurisdictions, in accordance with Federal and State laws.
(8) Prisons authorities shall treat prisoners humanely. Any treatment that is cruel, inhuman, degrading of the dignity of prisoners or that may expose their health to danger is prohibited and punishable by law.
(9) Organization, powers, terms and conditions of Prisons Service shall be prescribed by law.
4/14 The States of South Sudan (PART ELEVEN, Chapter I, page 67)
In reference to the provisions on the States of South Sudan in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 161 (1 ), should be amended (as underlined) to state that:
(1) The territory of South Sudan is composed of ten states governed on the basis of federalism.
4/15 State Legislative Assembly (PART ELEVEN, Chapter I, page 68)
In reference to the provisions on the State Legislative Assembly in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 163 (5), should be amended (as underlined) to state that:
(5) The term of a state Legislative Assembly shall be for the duration of the Transitional Period as provided for in this Constitution, commencing from July 9, 2011.
4/16 State Executive (PART ELEVEN, Chapter I, page 69)
In reference to the provisions on the State Executive in the Transitional Constitution of ROSS, 2011, we strongly urge that Article 164 (2), should be amended (as underlined) to state that:
(2)The Governor of each state shall be the head of the executive organ in the state and shall appoint and relieve the Deputy Governor, Advisors, and state Ministers in accordance with the state constitution.
We are concerned that the powers given to the president in this draft constitution are too many and too much, and can be misused by a
sitting president. There should be no tailoring of the constitution to an individual. The current President may not misuse these powers, but there may be other presidents in the future who may misuse such powers. For instance, the President should not be given the powers to sack a state governor who was not appointed by him/her but elected by the people of the state. The state constitution provides that a state governor could be impeached by the state assembly.
Furthermore, the President should not be consulted on who should serve as a state minister, since this is the job of the state governor, after being vetted by the state assembly or a relevant committee of the state assembly. This should equally apply even to national ministers who should be vetted by a specialized committee of the SSLA before the President appoints them as happens in other democracies to ensure that cronies of the President cannot automatically be smuggled by him/her into the Cabinet.
4/17 Amendment of this Constitution (PART FIFTEEN, page 85)
In reference to the provisions on Amendment of the Transitional Constitution of ROSS, 2011 after it has entered into force, we strongly urge that Article 197, should be amended (as underlined), subject to a decision to include a Council of States or otherwise, as part of Legislature during the Transitional Period, stating for the time being that:
197 This Constitution shall not be amended unless the proposed amendment is approved by two-thirds of all members of the South Sudan Legislative Assembly and only after introduction of the draft amendment at least one month prior to the deliberations.
Signed:
Jane Abucha, President for ESCA-USA
John Omunu Dorteo, Secretary General for ESCA-US