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2.03.2011

Southern Sudan's Constitutional Review

On January 21 the Government of Southern Sudan (GoSS) issued a presidential decree for the “formation of the Technical Committee to review the Interim Constitution of Southern Sudan” and to present a final draft of a transitional constitution to the President by April 25. The intention is to have a transitional, as opposed to permanent, constitution adopted by the Southern Sudan Legislative Assembly and signed by the President on July 9, the anticipated date of Southern Sudan’s independence. That it is only a transitional document reflects the strong desire to put in place the necessary provisions to govern effectively and exercise fully the sovereignty of the South, while recognizing the myriad of issues that need to be addressed (both domestically and with the North) and the shortage of time between the referendum and independence preclude a comprehensive constitutional undertaking during the remainder of the CPA’s interim period.

As currently envisioned, over the next three months the Technical Committee will work to draft amendments to the ICSS to transform the existing regional constitution to a (transitional) constitution of a sovereign state - powers that were formerly exercised in Khartoum will be transferred to Juba; the regional government and legislature will become national in character, as will other previously subsidiary institutions such as the regional armed forces and electoral commission; other key institutions, such as a central bank, will be created; and so on, in order to ensure effective governance upon independence. Fractious and more difficult issues, such as power- and wealth-sharing arrangements, federalism and decentralization, will be tabled until after July 9, when a later process to draft a permanent constitution begins.

The process for a permanent constitution is expected to be substantially longer. Based on resolutions of the All Southern Sudan Political Parties’ Conference (ASSPPC) in October 2010, the permanent process may include a National Constitutional Review Commission, a Constitutional Conference (thought to include all political parties and other interests), and an elected Constituent Assembly to adopt the permanent constitution. However, the establishment, composition and exact mandate of each of the bodies remains to be agreed among the parties, and then likely enshrined either in the transitional constitution or law.

To date, divisions within the political fabric of Southern Sudan have been largely overcome by the common goal of independence. With that unity of purpose soon to be fulfilled, many expect deep-seated and long-held political rivalries to re-emerge post-referendum. The challenge for GoSS officials (overwhelmingly from the Sudan Peoples’ Liberation Movement (SPLM) party) will be to manage the expectations and demands of the political opposition, some of whom contested the results of the April 2010 elections and have had an uneasy relationship with the leadership.

Opposition parties refer to the ASSPPC resolutions and call for a role in the preparations for the post-referendum period, including the development of the transitional constitution. The key to GoSS getting buy-in and support for the transitional constitution, therefore, will be including the opposition in the debating and drafting of the transitional constitution, convincing them of GoSS’s unconditional commitment to a comprehensive and inclusive constitutional dialogue after July 9, and discussing with the parties and then incorporating into the transitional constitution or law provisions setting forth concrete time lines and steps for drafting and ratifying the permanent constitution.

Recent statements by the SPLM, perhaps in response to objections by some opposition parties that they are inadequately represented on the Technical Committee, demonstrate confidence building measures and a commitment to a process that will include all major stakeholders. SPLM Secretary-General, Pagan Amum, recently announced that after the referendum results are announced an all parties’ conference will be held to, among other things, “decide on the shape and composition of the constitutional development process and we envisage a process that will be all-inclusive: all the political parties and civil societies in southern Sudan will participate in the development and drafting of the permanent constitution for southern Sudan.”

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