Introduction
The Republic of South Sudan is the world's newest country, becoming independent in 2011 after decades of conflict which many scholars attribute to the absence of constitutionalism.Footnote 1 The new country unexpectedly descended into internal civil war, which is blamed on a longstanding toxic power struggle and unhealed grievances, mistrust and governance failures in the Sudan People's Liberation Movement (SPLM).Footnote 2 The conflict was halted with a peace deal in 2015, which collapsed in 2016 and was revitalized in 2018 through the mediation of the regional bloc, the Inter-Governmental Authority on Development (IGAD), with assistance from the international community.Footnote 3 It is evident that the conflict has its roots in the absence of a consensual governance framework (a constitution), aggravated by ethnic militancy and weak institutions. This is why the grand aim of the peace agreement is to build a durable peace anchored in legislative and institutional reforms to give birth to a constitutional democracy.Footnote 4
The implementation of critical aspects of the peace agreement has been inexcusably sluggish, with only the constitution-building legislation (Constitution-Making Process Act 2022) enacted.Footnote 5 The slow pace of implementation led to the parties to the agreement deciding to extend its transition period for a further 24 months from February 2023,Footnote 6 which, the parties contend, would permit the implementation of pending activities, including the adoption of a new constitution and holding of elections by 2024. However, scholars have raised concerns that factors which would enable the realization of a legitimate constitution hardly exist,Footnote 7 including the fact that several armed groups have yet to join the peace process. This has led to an appeal for constitution building to be delinked from the periodized timelines stipulated under the peace agreement.Footnote 8
In the meantime, the international actors involved in mediating the peace agreement remain influential, including in leading certain key institutions which are instructive in the constitutional reform process.Footnote 9 In addition, the peace agreement commands the involvement of international actors to provide guidance during the constitutional design process. This phenomenon – a situation where foreign influence is part of the constitution building of a sovereign land – is not new. Indeed, most post-conflict countries hardly ever write their constitutions without some sort of external support or the participation of foreign actors.Footnote 10 The legacy of foreign influence in post-conflict constitution building tends to be justified on normative and socio-political grounds. The former suggests that foreign influence promotes the entrenchment of international normative standards such as human rights, the rule of law, and good governance.Footnote 11 The latter aims at pacifying and stabilizing post-conflict situations, which facilitates national elites to agree to a political transition, including adopting a new constitution that breaks from the – usually autocratic – past to a constitutional democracy. Foreign actors also influence constitution building to establish, strengthen and maintain a strategic relationship with national political elites. In sum, foreign influence is predicated on a claim that states emerging out of conflict would have been torn or fractured, and their restoration needs international constitutional assistance.Footnote 12
The question, therefore, is: How does foreign influence interact with constitution-building processes to shape constitutional legitimacy? The term constitution building is used in this article to refer to processes of negotiating, drafting and implementing constitutions and implies building new structures or re-developing existing ones, enhancing or adding value to governance and the political system.Footnote 13 On the other hand, constitution making refers to the “drafting and promulgation of a constitutional text”Footnote 14 or a “process of drafting [a] new constitution or reforming [an] existing one”.Footnote 15 The rest of the article proceeds as follows: the second section discusses theoretical perspectives on foreign influence and constitution building. A new theoretical framework for analysing constitutional legitimacy is then introduced, and foreign actors, referred to as the “critical few” engaged in constitution building in South Sudan, are discussed; their historical role in influencing constitutionalism is then analysed. The following section examines evidence of the process and outcomes in terms of mechanisms for enhancing constitutional legitimacy, before proposing a “blueprint” for ensuring democratic constitutional legitimacy.
Theories of constitution building
While views about constitution building in the literature differ, this section examines three theories of constitution building, namely the elites’ role, public participation and constitutional borrowings.
Elite-controlled constitution building
The first perspective argues that because constitution building is a complex and technical process, it is best driven by national elites with support from international experts.Footnote 16 The proponents of the elite-driven approach suggest that elites’ bargains are the basis upon which successful constitutions can be built and that it is such elite initiatives which acquire legitimacy over time. In other words, the political elites’ consensus on the nature of a state is a precedent to the adoption of a constitution. In support of this view, Arato observes that although lawyers often draft constitutional texts, they do so for the political elites who hire them.Footnote 17 This suggests that political elites are among the main players in any constitutional design process.Footnote 18 I argue that although, indeed, an elite consensus is essential for normality to prevail in a post-conflict context, an elite's exclusive role in a constitution-building process poses a risk of them capturing it. The 2011 Transitional Constitution of the Republic of South Sudan (the John Luk Constitution) is an example of an elite contract with no meaningful citizen voices.Footnote 19 This self-dealing constitutional experiment (where the elite put their own interests ahead of those of the supposed representatives) raises fears that “South Sudanese political elites may fail to deliver a democratic ‘permanent’ constitution”, unless the people are involved.Footnote 20
Participatory constitution building
The second viewpoint offers a counter-argument to the first. It says that constitution building is a sovereign process that should be adopted through popular participation of the people. The main proponents of participatory approaches include Bannon, Ginsburg, Saati, Prempeh, Hart and Moehler, who extensively discuss the strengths and weaknesses of participatory constitution building.Footnote 21 They contend that public “participation and deliberation are premium methods”Footnote 22 and that post-conflict constitution building “cannot achieve its aims in the absence of extensive public participation”.Footnote 23
Proponents of this viewpoint emphasize an inclusive and participatory constitution-building process because, they argue, “how constitutions are made after conflict, particularly following civil conflict or authoritarian rule, impacts the resulting state and its transition to democracy”.Footnote 24 Indeed, this view affirms the phrase “we the people” found in almost all constitutions as a touchstone to the people being sovereign. This means constitution building should be an exclusive realm of relevant domestic actors, at whose invitation international actors may provide guidance, assistance and advice. Thus exclusion of the people from the constitution-building process may “dilute [the] constitution's democratic nature as well as its legitimacy in the eyes of the nation”Footnote 25 and renders it incapable of “penetrating the society to effectively regulate social relationships” or the social contract.Footnote 26 Participatory constitution building legitimizes a constitution, “generates a constituent process and leads to the recognition of local sociopolitical practices in the constitution”.Footnote 27 In other words, popular participation could “reduce demands for [constitutional] renegotiation, increases legitimacy and strengthens people's resolve to defend the constitution from sabotage”.Footnote 28 Thus, “a nationally led, participatory, and inclusive process” could set a strong basis for democracy and the rule of law to thrive.Footnote 29
According to Saati, participation is meaningful if it involves people in both agenda setting and in critical decisions that influence constitutional design processes and outcomes.Footnote 30 That notwithstanding, challenges to popular participation abound, including high rates of illiteracy, insecurity and intercommunal violence, as well as a shrinking civic space in South Sudan. The absence of peace between and among the Nuer and Dinka (Jiëëng) ethnic groups, sporadic violence inflamed by economic meltdown, acute humanitarian crises and political polarization are some of the impediments to popular participation in the constitution-building process. This calls for the prioritization of initiatives for local peacebuilding and accountability.
Constitutional transplant as a constitution-building approach
The third and last theory is a constitutional design by transnational transplant or borrowing. This perspective contends that constitution building involves inevitable transnational constitutional transplants from jurisdictions believed to offer better options. The terms constitutional borrowing or transplant are used interchangeably to refer to the adoption of foreign constitutional substantive or structural frameworks – in part or in whole – during the design of a domestic constitution. This transfer is facilitated by “super-structural” forces (technology, demography and economy), learning, competition or coercion.Footnote 31 Mimicking a foreign constitutional model is also motivated by economic and political reasons,Footnote 32 or strategic alignment with “countries with similar legal origins, religion, common coloniser or aid donor”.Footnote 33 At times, it takes the form of wholesale copying of pre-existing foreign constitutional ideas, cultures and structural arrangements. Such a practice risks blind adoption of others’ bad “literature of governance”;Footnote 34 escaping such a risk calls for foreign actors to “refrain from being prescriptive and imposing models or norms with no local contextualisation”.Footnote 35 This is because external imposition risks ousting local voices and may diminish local constitutional ownership.Footnote 36
Constitution making by transplant advocates for the contextualization of all external borrowings to meet domestic realities and aspirations. Constitutional contextualization or “cultural justification”Footnote 37 refers to a systematic analysis of external constitutional models that are under consideration for adoption domestically. The justification is the explanation of the rationale for adopting otherwise “imported” constitutional values or norms.
Towards a potential new theory of constitutional legitimacy
The three constitutional design approaches discussed above suggest a potential new theory that may be useful in studying the impact of foreign influence on constitutional legitimacy. If we are to study the relationship between international involvement and constitutional legitimacy, there is a need to turn to aids that facilitate our better understanding. Let us picture the assertion that foreign influence interacts with the three approaches of constitutional design – the elites’ role, popular participation and constitutional borrowing – to influence constitutional legitimacy. Consider that the three approaches represent X which supports Y to produce Z, such that X+Y=Z, where X = the three approaches of constitutional design, Y = the constitution, and Z = democratic constitutional legitimacy (which results from the three approaches of constitution building). If we substitute this equation with an object that tells the same story, we can use an African pot, which often stands on three stones to obtain a balanced position.Footnote 38 As Figure 1 shows, we can use the pot to symbolize a constitution where the three constitutional design approaches – (a) people's participation, (b) the role of political elites, and (c) constitutional borrowings – symbolize the three metaphorical stones, hence the name the “three-stone theory”. A balance of the three stones would result in a constitutional equilibrium where a post-conflict constitution may inspire popular acquiescence and yield democracy.
Three-stone legitimacy theory
Source: JG Akech, “Foreign influence and the legitimacy of constitution building in South Sudan” (PhD dissertation, University of Pretoria, 2022)
Merits and limitations of the three-stone theory
The proposed theory has several potential merits. First, the illustration of an African pot visualizes the three constitutional design approaches and their relationship to democratic legitimacy. It deconstructs the substantive complexities of constitution building and shows the effective participation of ordinary people. It may promote an understanding among illiterate people that who is involved or excluded, the role of the elite and how foreign constitutional transplants are domesticated have a correlation with constitutional legitimacy. The other merit is that the three-stone theory is a socio-legal methodological framework for studying foreign influence and constitutional legitimacy. The theory is not without limitations, however. One is its emphasis on the influence of the three factors conceptualized as the three stones of constitutional legitimacy. There are, of course, a multitude of factors and forces that influence post-conflict constitutional experiments.Footnote 39 There is, therefore, potential for further research to learn the comprehensive utility of the proposed theory.
Another way to explain the three-stone theory is a tabular experiment I have called the “constitutional legitimacy table”, which presents the influence of the three factors on constitutional legitimacy depending on the degree of engagement (see Figure 2).
Constitutional legitimacy table
Source: JG Akech, “Foreign influence and the legitimacy of constitution building in South Sudan” (PhD dissertation, University of Pretoria, 2022)
The “critical few”: Foreign actors influencing constitution building
International actors engaged in constitution building in South Sudan are manifold; however, the most prominent ones are the Max Planck Foundation for International Peace and the Rule of Law (Max Planck), the International Institute for Democracy and Electoral Assistance (International IDEA), the United Nations Development Programme (UNDP), the United Nations Mission in South Sudan (UNMISS), the Troika (the USA, the UK and Norway) and IGAD. It would seem that international actors influence constitution building through their toolbox of approaches, including experts’ deployment to support drafting or legal advice, financial aid and comparative constitutional research. A brief account of international actors’ role in constitution building is found below.
United Nations agencies
The UN's engagement in constitution building is to “strengthen legitimate and stable constitutional orders”,Footnote 40 including facilitating countries in transition to restore peace and stability and to realize their democratization agenda.Footnote 41 In the case of South Sudan, the two UN agencies at the forefront of supporting constitution building are UNDP and UNMISS, both of which support peacebuilding, the rule of law and strengthening of institutions. UNMISS, in particular, is authorized to use its “good offices to support the peace process, including advice or technical assistance”.Footnote 42 Generally, the aim of the UN's engagement in constitution building is to
“foster opportunity for peacebuilding and sustainable development; encourage compliance with international norms and standards; ensure national ownership to reflect local context; support inclusivity, participation and transparency; mobilise and coordinate a wide range of expertise; and promote adequate implementation and follow-up after a constitution is adopted.”Footnote 43
The UN has been criticized for relying on “foreign experts, foreign models, and foreign-conceived solutions to the detriment of durable improvements and sustainable capacity”.Footnote 44 It has sought to address this by recognizing that constitutional design “is a sovereign process, more likely to be successful when [it is] nationally owned and led, inclusive, participatory and transparent, based on applicable international norms, standards and good practices, and tailored to the specific country context”.Footnote 45
The Troika
The Troika is an informal but influential alliance of three countries – Norway, the United Kingdom and the United States of America – which uses its collective diplomatic thrust to achieve common goals in South Sudan. The Troika is a longstanding partner, backer and influencer in the South Sudanese political landscape. This special relationship dates back to the Comprehensive Peace Agreement (CPA) era, during which their combined political and financial support contributed to the successful political independence of South Sudan.Footnote 46 Norway in particular had a special relationship with the SPLM before, during and after independence.Footnote 47 After independence, the Troika intensified support in the areas of human rights and good governance, which was re-focused to peacebuilding and lifesaving humanitarian assistance after the December 2013 conflict.Footnote 48 The reason for this change of heart may be due to the fact that the national political elites are not serious about improving conditions for their citizens. A rigorous constitution-making process might therefore help to restore these broken relationships and strengthen the government's legitimacy, in addition to any legitimacy a new constitution may confer.
Even with disinterest in supporting governance, the Troika remains a strategic partner with strong leverage in the South Sudanese governance landscape. Its influential role in the peace process undeniably swayed the parties during negotiations to adopt principles to guide the constitutional design process. The intentions of the Troika in South Sudan's constitution building are perfectly summed up by one informant:
“[A]lthough Troika will not be prescriptive, it wishes to see democratic practices such as term limit, peaceful transfer of power and pluralistic non-violent politics entrenched in the constitution.”Footnote 49
Any assistance it may provide in the constitution making would, he emphasized, be based “on a voluntary request from the government of South Sudan”.Footnote 50 Owing to that standpoint, the Troika's assistance in constitution building is not based on transplanting a particular constitutional structure, nor is it in pursuit of any constitutional model. Rather, one of its expectations is that the constitution-building process complies with international best practice. To be precise, the Troika is keen on promoting a constitutional order that prioritizes human rights, strong institutions and proper management of public resources.Footnote 51
Thus, acting together or alone, the Troika's aim is to promote the principles of democracy, the rule of law and human rights. These good intentions notwithstanding, the question is: Can a constitution with “best” practices deliver if there is no democratic government? Are they mutually exclusive? I ask these questions because others contend that a country should “carefully peruse their own national interests and societal values in full awareness of the options available, and of their respective costs and benefits”.Footnote 52 The sharing of comparative best practice and constitutional models should thus be cognizant of the need to contextualize to the domestic context.
Other international and regional organizations
The other actors influential in constitutional design are IGAD, Max Planck and the International IDEA. IGAD is a regional bloc that mediated the peace agreement, whereas the other two are expert organizations specialized in constitutional design.Footnote 53 Max Planck, for instance, is the only organization to which the peace agreement grants a special mandate to support the constitution-building process, including facilitating a stakeholders’ workshop to agree issues to guide the legislation on constitution making.Footnote 54
Evidence of foreign influence in constitution making
The preceding section has pointed out foreign actors influential in the constitution-building business. I now wish to evaluate the theory I constructed above by analysing how foreign actors influenced South Sudanese constitutional history. This is done by examining the role of foreign actors in three landmark constitutional moments: the Interim Constitution of Southern Sudan 2005, the Transitional Constitution 2011 and constitution building under the 2018 Revitalised Peace Agreement.
Interim Constitution of Southern Sudan 2005
In 2005, the Interim Constitution of Southern Sudan (Interim Constitution) was enacted, as required by the CPA, to guide the autonomous government established in southern Sudan. The process involved significant international influence on the one hand and a few national political elites on the other. Although the international community had been enjoined by the CPA, they were keen to provide technical and financial assistance to ill-prepared South Sudanese political institutions who were unable to write a constitution on their own. As part of “internal scrutiny, a cadre of international observers and interveners descended on the process” to provide technical assistance in the form of drafting.Footnote 55
In what has been described as “making the client's peace”,Footnote 56 the SPLM sought technical support from a US law firm, Latham and Watkins,Footnote 57 and a host of international organizations. Others actors which provided assistance in the form of drafting and technical training included the Public International Law Group, the National Democratic Institute, an American organization acting in cooperation with the United States Agency for International Development, and Max Planck, with European funding.Footnote 58 In the end, “much of the international community was [engaged and] watching closely as the government emerge[d] and develop[ed]”.Footnote 59 On the national side, President Kiir formed a technical committee comprised of 28 SPLM members, six members of the National Congress Party and six representatives from other parties.Footnote 60 The 2005 Interim Constitution was adopted for the six-year transition period, but it was changed substantially by political elites in the lead-up to the independence declaration in July 2011.
Transitional Constitution of the Republic of South Sudan 2011
Upon successful declaration of the South Sudan referendum vote in favour of secession, the SPLM leaders, other political actors and technocrats became busy with crafting relevant state institutions, including the constitution of the would-be new state. The process started with a review of the Interim Constitution, which was later reworked into a provisional constitution for the expected new state. The transitional nature of the constitution was premised on two arguments: first, the Interim Constitution had not been produced through an open and participatory process. Instead, it was adopted by appointed individuals, the majority of whom were SPLM members, the main armed group that had signed the peace with the Sudan government. Second, there was a multitude of underlying differences on which the South Sudanese needed to agree or at least reach a consensus or compromise. These included the nature of the state South Sudan should be, including unsettled questions as to whether the country should adopt federalism or decentralization, or a presidential or a parliamentary system, among other matters, on which national political elites differed. More time was therefore needed for dialogue and consensus before a permanent constitution could be adopted.Footnote 61
However, it may be argued that the Transitional Constitution was not technically required, since the Interim Constitution was designed to withstand a vote for secession. In fact, the Interim Constitution provides for continuity of the constitution for the sovereign nation of South Sudan in the case of such a vote.Footnote 62 Perhaps the government of Southern Sudan thought a new constitution would confer additional legitimacy upon it. Those reasons notwithstanding, the process proceeded, and the Interim Constitution was converted into the Transitional Constitution of the Republic of South Sudan 2011. The process was, however, plagued by a number of concerns. First, the process lacked the popular engagement of the people, which is a central feature of modern constitution building consistent with the theory of pouvoir constituent, or constituent power.Footnote 63 In fact, the drafting bodies were not inclusive of all political forces and the peoples of Southern Sudan in all their diversity. In particular, the committees set up to draft the constitution were dominated by the SPLM party, with 37 out of 52 members.Footnote 64
This left other political forces and civil-society organizations underrepresented, prompting some of them to withdraw their representatives from the process. The short-lived boycott was a protest by non-SPLM members who argued that the All-Southern Sudanese Political Parties Conference had recommended an inclusive constitution-building process, including a constitutional conference.Footnote 65 In an attempt to remedy this protest, additional members from other political parties, faith-based organizations and civil society were added.Footnote 66 Two reasons were advanced by the government for excluding public participation in the transitional constitution-making process. The first was time constraints, since popular consultation generally requires a substantial amount of time. The second was that the Transitional Constitution was intended to serve only as an interim document, a placeholder for a permanent constitution.Footnote 67 But the SPLM-led government promised to make the permanent constitution-building process inclusive, as well as to ensure external borrowing was contextualized to local realities in order to meet peoples’ aspirations.
The second challenge was that constitution making was elite-driven where, for instance, the Transitional Constitution was led by the Drafting Committee and was rushed because the moment of the independence declaration was fast approaching. Third, the crafting borrowed extensively from outside South Sudan, without much contextualization to ensure the new constitution's relevance to domestic needs and ambitions. Cope says that the “bill of rights [in the Transitional Constitution] is substantively transnational”.Footnote 68 The Transitional Constitution soon faced challenges, with the sudden eruption of conflict in December 2013 which halted the work of the National Constitutional Review Commission (the Commission) established in 2012.Footnote 69 The Commission promptly commenced its work but failed to deliver anything substantial due to a number of factors, including lack of political will, inadequate financial resources and political instability.Footnote 70 The peace deal re-instated constitution making, to be followed by general elections.
Constitution building under the 2018 Revitalised Peace Agreement
Midway to the 2015 deadline when a final constitution was supposed to have been adopted, South Sudan was engulfed in conflict and the constitution-building process was terminated. Mediated by the international community, the peace deal aimed to resolve the conflict, including enacting constitutional reform. The international actors’ footprint can be seen in the actions of those involved in mediating the peace agreement and those involved in key institutions with influence on constitutionalism. In terms of mediation, actors such as IGAD, the African Union, the Troika, China and the European Union were involved and remain engaged in peace implementation. Another influential institution, chaired and deputized by foreign experts appointed by IGAD, is the National Constitutional Amendment Committee, mandated to review a set of legal frameworks that have influence on the constitutional order. The “permanent” constitution is to be adopted through a three-stage process: the first is convening, which includes adopting a law to guide the process,Footnote 71 reconstitution of necessary institutionsFootnote 72 and commencement of drafting and solicitation of public ideas. Second is the adoption of the text by the National Constitutional Conference, and third is ratification by the Constituent Assembly (a transformed Transitional National Legislative Assembly) (see Figure 3).Footnote 73
Constitution-building steps as per the Revitalised Peace Agreement
Source: JG Akech, “Foreign influence and the legitimacy of constitution building in South Sudan” (PhD dissertation, University of Pretoria, 2022)
The entire process of adopting a new constitution is to be overseen by the Revitalised Transitional Government of National Unity (the unity government) and is to be South Sudanese-led and owned.Footnote 74 However, constitutional framers and stakeholders are to seek advice from international actors. The Revitalised Peace Agreement stipulates that the unity government “shall seek advice from regional and international expertise, experience and best practices to assist the constitution building process”.Footnote 75 Similarly, the process is to draw lessons from South Sudan's “common law, constitutional history, and experiences”.Footnote 76 These stipulations are in themselves arguably constitutional rules or a constitution of the constitution – a document that stipulates the validity of the process of drafting a constitution, also referred to as a rule of recognition, found in pre-constitutional rules that determine the legitimacy of the foundational Grundnorm of a country.Footnote 77 In that regard, one can say that the peace deal stipulates the mandatory engagement of international actors in the constitution-building process, including responsibility to oversee constitutional amendment and chairing of certain institutions.Footnote 78
Like the Transitional Constitution, which was adopted at a time when critical constitutional matters were unsettled, leading some scholars to question whether South Sudan was ready for a “permanent” constitution,Footnote 79 similar questions are being asked of the constitution building under the Revitalised Peace Agreement.Footnote 80 This is in spite of the fact that a new constitution may afford the country the opportunity to re-write its dark history. The process, however, faces a myriad of challenges:
• The absence of enabling factors for participatory constitution building: this includes the fact that millions of South Sudanese are internally displaced persons or refugees, yet they have to be part of the process. This raises the question: What popular legitimacy can there be of a constitution that is adopted when a third of the country is displaced? Is it sufficient to consult with these people while they are living in foreign countries as refugees or in camps for the internally displaced? It is also to be noted that insecurity is still rampant, as evident in the surge in communal violence, namely between the Twic and Ngok, and cattle raids in Warrap, Unity and Jonglei states. There are also worsening humanitarian crises, with the international community feeding people while the economy nosedives.
• There are various armed groups that have yet to sign the peace agreement, and they could pose a threat to the civic engagement of people at the grassroots, including in areas they control. Their absence at the table may also undermine elite consensus on the constitution.
• The risk of elite capture: the Revitalised Peace Agreement establishes a six-person presidency whose political groups have control over the constitution-building process, given that all institutions will be comprised of or led by their chosen representatives. The question therefore is: Can unelected elite groups write a constitution that may pave the way for an election in which some could lose? As the literature indicates, all constitutions adopted since Sudan's independence in 1956 “have only focused on legitimising new political dispensations” rather than on a social contract with the people.Footnote 81
Although these concerns may be real, others argue that “once a short-lived constitutional movement is missed, it becomes difficult to reach agreement in conditions of simultaneous transitions to constitutionalism and democracy”.Footnote 82 It is also said that peacebuilding takes a long time, and pinning constitution building on a certain outcome would not be ideal in a context where institutions have to be created from scratch. Agreeing with this observation, Elster observes that constitution building should only occur in “maximally calm and undisturbed conditions” and that there must be a sense of urgency to restore the efficacy of public institutions.Footnote 83 Furthermore, South Sudan has been mired in transition upon transition, and it may be that a permanent constitution will help to counteract this addiction to transitional governance, whatever happens in the electoral process.
Up to this point, I have shown evidence of the foreign influence on constitutional legitimacy in the short-lived constitutional history of South Sudan. The next section discusses mechanisms put forward by the peace agreement and other options South Sudan may consider to enhance the legitimacy of the “permanent” constitution.
Mechanisms for enhancing constitutional legitimacy
In the preceding sections, I have tried to establish that constitutional legitimacy is influenced by the extent to which foreign influence interacts with popular participation, the elites’ role and constitutional borrowing. From that vantage point, the degree of acceptance or dissatisfaction by foreign actors, national forces and the people influences the internal and external legitimacy of a constitution. For instance, in the case of South Sudan, if external actors (particularly IGAD and the Troika) feel excluded, they might withdraw their recognition of a constitution, which could diminish external legitimacy. On the other hand, if national stakeholders (the national elites and the people) are dissatisfied with the constitution, this may weaken its internal legitimacy (see Figure 4). Seen from this perspective, it would appear that internal legitimacy is established by fulfilling citizens’ aspirations in a constitution, whereas external legitimacy is attained by satisfying international and democratic actors; Nabukenya calls this satisfying “pressures from within and without”.Footnote 84 The fact that foreign influence in constitutional design implicates process and outcome legitimacies is the subject of the section below.
Constitutional legitimacy shaped by actors’ engagement and interests
Source: JG Akech, “Foreign influence and the legitimacy of constitution building in South Sudan” (PhD dissertation, University of Pretoria, 2022)
Process legitimacy
The process of constitution building is important in conferring constitutional legitimacy.Footnote 85 The constitutional design process provided under the Revitalised Peace Agreement is crucial for political stability and the consolidation of constitutionalism in South Sudan. By process legitimacy, I mean the extent to which various mechanisms of constitution making ensure the inclusion of diverse constituencies concerned with the “permanent” constitutional design process.
Constitutional drafting
Constitutional drafting is a fundamental legitimizing process that ought to conceptualize the citizens’ consensus, intentions and aspirations into the constitutional text. This stage of constitution making is to be led by a technical, independent and non-partisan 15-member expert body referred to as the Constitutional Drafting Committee (the Drafting Committee).Footnote 86 The Drafting Committee is to be as diverse as possible, comprising both nationals and expatriates with years of experience and degree qualifications in law, political science and economics.
Civic engagement
Civic engagement includes citizens’ engagement through public consultations and experts’ submissions for feedback on the draft constitutional text that has been formulated by the Drafting Committee. Citizens’ input and feedback will be led by the Commission, which constitutes 57 members drawn from political groups, civil society, academia, faith-based organizations and the private sector, and including women, youth, and ethnic minorities.Footnote 87 The people's engagement is meant to influence necessary adjustments or corrections in the draft text, as well as building consensus among stakeholders as to what the popular view on a particular issue might be. The Commission's main role can be summarized as three basic functions:Footnote 88
• to conduct civic education in connection with the constitution-making process;
• to consult the population and key groups such as political parties, civil society and other stakeholders on key constitutional questions; and
• to compile and create a draft of the new constitution, taking on the views received.
As a first stage of conceptualizing and drafting the constitution, the consultation stage is critical, because it is then that consultations, the contextualization of borrowed material and the self-interest of elites will determine the nature of the draft that will be forwarded to the National Constitutional Conference, before its adopted version is passed by the national legislature acting as the Constituent Assembly. This stage is also influential to the legitimacy of the permanent constitution not only because it is the stage at which international and national actors converge to undertake technical negotiation, but also because it is a platform for receiving and processing public and technical inputs and submissions. However, there are a number of issues which could derail this possibility.
First, the requirement that the Commission be reconstituted before it can commence its work is to ensure a broad-based representation of various political formations and interest groups. Second, the composition, powers and level of independence of the Commission will have a bearing on the legitimacy of the constitution. Third, the types of individuals appointed to the Commission, whether they are conservatives, status-quo loyalists or young progressive proponents of a rule-based order, can also have a bearing on the input. The process of selecting members, including vetting and ascertaining their degree of independence, is equally a critical factor.
Adoption and ratification
Two mechanisms of constitution making – the National Constitutional Conference (the Constitutional Conference) and the Constituent Assembly (a converted transitional national legislature) – are mandated to adopt and ratify the final constitution of the Republic of South Sudan. The process of deliberation and adoption by both the Constitutional Conference and the Constituent Assembly is crucial in conferring outcome legitimacy. The question is, however, whether their constitutive and operational structure will facilitate or fail to confer democratic legitimacy on the country's final constitution. The next section briefly examines the mandate of the Constitutional Conference and the Constituent Assembly in order to expose their potential challenges.
Constitutional Conference
The Constitutional Conference is to comprise at least 1,200 delegates drawn from across the country's diversity, including political parties, civil society, faith-based organizations, academia and trade unions.Footnote 89 Of these delegates, 100 shall come from each of the country's ten states, 30 from each of the three administrative areas and 110 from other categories.Footnote 90 Whereas the Conference attempts to satisfy diversity and equitable representation, its expansive nature could implicate its decision making, as it could potentially become a foolish crowd that can be easily manipulated by political insurers. Another challenge is that nominations from states and administrative areas may be influenced by political parties, who may animate the voting behaviour of their delegates. Finally, delegates do not have to have specific qualifications relevant to constitution making; they only need to be of “sound mind, [and] people of high moral character and integrity”.Footnote 91
Constituent Assembly
As already mentioned, a 650-member bicameral legislature is to be transformed into a constituent assembly to ratify the final constitution.Footnote 92 Ordinarily, a constituent assembly is a representative public body elected or appointed to debate and adopt a constitution, and, according to Elster, can be of four types: “constitutional conventions, mandated constituent legislature, self-created constituent legislature, and self-created legislating assemblies”.Footnote 93 Elster argues that constitutional conventions are superior because they are “elected for the sole purpose of adopting the constitution”.Footnote 94 The fact that “an ordinary parliament turns itself into a constituent assembly” is not new.Footnote 95 A constituent assembly becomes a self-created assembly if a transitional legislature transforms itself into such a body. What is worrisome is that the transitional national legislature is unelected and may not be representative of all South Sudanese stakeholders. This is because the majority of its members represent an elite contract in the form of a consociational government birthed by the 2018 revitalized peace deal. In particular, the fact that the transitional legislature is to be transformed into a constituent assembly to pass the final constitution faces two main challenges: first, the transitional legislature is unelected, and second, it is non-representative and exclusive of many South Sudanese stakeholders.
Unelected constituent assembly
Elections have not been held in South Sudan since the country gained independence. The national legislature is, therefore, not a democratically elected institution, except for a few members who were elected as part of the Sudanese general election in 2010 but whose term lapsed in 2015 and who have only been self-renewing their mandate. Accordingly, the national legislature draws its legitimacy, as does the entire government, from the Revitalised Peace Agreement.
It is to be noted that the parties to the Revitalised Peace Agreement who make up the national legislature are opposed on certain aspects, and they may extend their rivalries to the constitution-building process. This might jeopardize peace and stability, since political disagreements have led to devastating political violence in the past. The parties might also attempt to write themselves into the constitution, which would be contrary to the democratic aspirations of the citizens, who have limited or no influence over the political process. For these reasons, one can argue that the Constituent Assembly might vote to maintain the status quo ante, since it would lack political incentives to adopt a transformative constitution that might lead to some losing elections when they are held on a level playing field.
Non-representative body
As stated above, only parties to the Revitalised Peace Agreement make up the national legislature, which will be dissolved and turned into a constituent assembly. This makes the assembly unrepresentative because there are many stakeholders, including estranged groups (armed and non-armed), which are not represented in Parliament. Inclusive representation is a key ingredient of popular legitimacy; thus, a non-representative constituent assembly raises concerns as to whether it can remain faithful to the aspirations of the South Sudanese people. One way to address this is to encourage all members of the Constituent Assembly to consult with their constituencies before they vote on a constitution. This is important to strengthen representative democracy wherein major policy decisions are influenced by and respect peoples’ views. Other propositions that might strengthen legitimacy are expounded upon below.
Women's voices and representation in the process legitimacy
Women are about half the population of South Sudan, yet they remain underrepresented in socio-economic and political spheres.Footnote 96 Women's rights to “participate in public life and representation”,Footnote 97 including a favourable affirmative policy of a 35-per-cent quota system of representation across all levels of government and other public institutions, are, however, entrenched under the Transitional Constitution.Footnote 98 The legislation guiding constitution making enjoins the government to appoint women to either head or deputize the Commission, in addition to ensuring that 35 per cent of people in all the mechanisms of constitution making are women.Footnote 99 Before this, women participated in constitutional reforms through peace agreement and intellectual policy engagements that saw the inclusion of a strong role for women in governance and protection of their rights under the constitution.Footnote 100
Outcome legitimacy
In addition to the constitution-building institutions discussed above, referendums and court certifications are other mechanisms and processes that influence constitutional legitimacy. While these are not explicitly stipulated as part of constitution building, they are common legitimizing pathways.
Referendums
A constitutional referendum is a democratic device that ensures transparency in the public decision-making process and is an assurance that public institutions will not make certain decisions of fundamental impact to public lives without citizens’ consent. Recognizing that the “people are a source of constitutional legitimacy”,Footnote 101 a constitutional referendum can be an effective way of galvanizing popular ratification of a constitution, directly involving the people as final decision-makers. This, it is argued, makes the people “gatekeepers against elite capture”.Footnote 102 Expounding on Elster's notion of “downstream constraint”,Footnote 103 Böckenförde suggests that a referendum may restraint elites when they are drafting a constitution since they know that their draft will have to be approved or rejected by another body.Footnote 104 In other words, a referendum may deter the self-dealing tendencies of elites in the “upstream” or preparatory processes of constitution building.Footnote 105
A referendum is, however, not without weaknesses. It is said that a referendum does not, in itself, necessarily guarantee popular constitutional legitimacy unless it is accompanied by meaningful public participation.Footnote 106 Four reasons are cited as referendums’ limitations in relation to constitutional legitimacy. First, even if a referendum reinforces popular participation, which is a constitutional legitimizing aspect, “there is mixed empirical evidence for the notion that [a referendum as a means of endorsing a constitution] secures its long-term stability and acceptance”.Footnote 107 Any existing link between referendum and constitutional acceptance is weakened by evidence of a constitutional dispensation that differs from popular aims established at its promulgation. The challenge is usually in constitutional amendments by a majority political party that uproot the basic structure of a constitution which would have been entrenched by citizens in a constitutional referendum. King, while acknowledging the lack of empirical evidence linking constitutional legitimacy to referendums, suggests that “constitutions that are subject to approval by popular referendum will, all else being equal, tend to have greater popular acceptance than those that do not”.Footnote 108 Indeed, it has been said that constitutions that are adopted through popular means appeal more to the local people than those which are not.Footnote 109
Second, a referendum risks disenfranchising minorities and favours majorities, which could polarize division in an ethnically diverse society such as South Sudan where toxic ethnicity threatens to tear the country apart. In fact, one can say that a referendum would be a grave injustice to minority ethnic groups such as the Jie and Kichopo, for instance, whose national influence on political affairs is limited in the prevailing unity government in which power is divided by the ruling groups. This may be further complicated by the high rate of illiteracy and ignorance among the vast majority of South Sudanese, who might be easily rallied along ethnic lines championed by political elites.
Third, a referendum has an inherent tension with representative democracy where elected representatives are expected to act on behalf of the electorate and the people.Footnote 110 In this regard, Beckman notes that “deliberative spirit and desire for agreement is preferable”.Footnote 111 Deliberative and consensual mechanisms witnessed during the National Dialogue are preferred because they offer compromise, as opposed to a referendum which is habitually associated with “lack of reflection and antagonism”.Footnote 112
Finally, referendums are criticized for their tendency to focus on galvanizing popular approval of a constitution, effectively placing emphasis on mere constitutional “openness which makes it unsuitable for safeguarding constitutional quality”Footnote 113 or the substantive quality of the constitutional text. A referendum is unlikely to safeguard against unconstitutional changes or future illegal amendments, although it might build a public consciousness necessary to defend the constitution.Footnote 114
Constitutional Court certification
Certification of a constitution by a constitutional court is rare; it is often done to determine if a constitutional text has complied with subsisting international obligations and pre-agreed principles guiding the constitution. In South Africa, for instance, a constitution endorsed by an elected parliament was subjected to a certification process by the country's Constitutional Court.Footnote 115 The court was required to ascertain that the final constitution passed by the Parliament was in line with the Document of Principles (a pre-agreed negotiated political compromise among political forces) guaranteed in the Interim Constitution.Footnote 116
How can court certification be applied in South Sudan?
Like the South African case, constitution building in South Sudan is guided by a number of principles agreed to by parties to the peace agreement. The guiding principles or the “pre-defined reference frame”Footnote 117 on which a permanent constitution is to take cognizance include that people's views have been adequately reflected in it (supremacy of the people),Footnote 118 that the constitution adopts a “federal and democratic system of government that reflects the [country's] character”, “guaranteeing national unity, peace and political stability” and “promoting people's participation in governance”.Footnote 119 Other principles include the fact that the constitution must “respect ethnic identities, rights and values” and establish public institutions that guarantee the “fair distribution of national wealth and resources” and “promote international cooperation” and a culture of “peaceful resolutions of disputes”.Footnote 120
The role of the Constitutional Court would thus be to certify that the “permanent” constitution complied with the above agreed principles. Indeed, the object of a certification by a constitutional court is to ensure that the manner in which the various building blocks of a constitutional structure come together are “normatively legitimate”,Footnote 121 in other words, that “matters that bear constitutive significance to the legal and political system” have been taken care of in a constitution.Footnote 122 One can argue that the device of judicial certification protects countries drafting their constitutions from slipping away from democratic norms otherwise negotiated and agreed prior to adoption of a constitution. The court's certification may also entrench principles agreed to by a small elite group and endorsed by a non-representative parliament. Foreign actors engaged in constitution building may pressure constitution drafters to ensure adherence to these principles as contributing factors for the legitimacy of the final constitution. It is also possible that political entities could pull out of constitutional negotiations if they sense a deviation from these core principles which they consider the basis upon which a permanent constitution should be anchored.
Expected challenges with court certification
One immediate challenge is that the court certification is not part of the constitution-building process, and the parties are unlikely to accept it, despite it being a device that could enhance the legitimacy of a constitution adopted on a negotiated deal. Another is that South Sudan does not have an “independent, credible and impartial Constitutional Court” separate from the Supreme Court.Footnote 123 What exists is a mechanism fashioned alongside the Sudanese judicial system where members of the Supreme Court sit as a constitutional panel when a constitutional matter arises. The Revitalised Peace Agreement, however, stipulates the establishment of a Constitutional Court, which is yet to be established by the Revitalised Transitional Government of National Unity. In the meantime, constitutional disputes continue to be addressed through petitions to a constitutional panel of the Supreme Court, whose independence has been increasingly questioned. This lack of independence makes it increasingly difficult for the parties to the revitalized peace deal to trust the constitutional court to certify the “permanent” constitution. In the unlikely event that this option is considered, the court should be led by a leading African jurist, preferably from South Africa, to ensure credibility, impartiality and independence. All judges to the Constitutional Court should be publicly vetted for competence, integrity and independence.
Towards a blueprint for constitutional legitimacy: A proposal
This article's main claim is that foreign actors influence constitutional legitimacy through three approaches to constitutional design – elite contracts, popular participation and constitutional transplants. This is illustrated graphically in the form of the three-stone theory, demonstrating that their interdependence cumulatively and independently influences the legitimacy of a constitution. The article also contends that foreign influence in constitution building is inevitable, historical and at times necessary to encourage dialogue, and avails national elites of expertise and resources which they might otherwise lack. International involvement should, however, respect aspirations of zol meskin so as to increase local acceptance and ownership of a constitution.Footnote 124 How to achieve this is what I have called the “blueprint” for constitutional legitimacy, which applies the three-stone theory in practice. The blueprint is a set of authoritative proposals through which the “permanent” constitution in South Sudan can gain legitimacy, despite the role played by foreign actors in the design process, and is a near-ideal roadmap or pathway for a constitution that would be truly legitimate in the eyes of all South Sudanese people. The blueprint would comprise the following components: first, constitution building that promotes peacebuilding, national unity and political stability. This calls for promoting people-to-people dialogue in an environment free from intimidation and threats. As these intersect to enable a legitimate constitutional outcome, it follows that constitution building should not be rushed nor isolated from other critical legislative and institutional reforms the country is undertaking.
Second, a process that promotes both internal and external legitimization of a constitution is necessary. This may be achieved through an inclusive consensus of the elites and an understanding with the international community engaged in the process. A key component that may assure both national and international actors is a certification of the draft constitutional text by a constitutional court whose role would be to consider the following questions: Does the “permanent” constitution reflect the will of the people, who are sovereign? Does the constitution provide for the rule of law, democracy and constitutionalism to thrive? Given the apparent lack of an independent judiciary, the constitutional court to certify the final constitution should be led by a leading African constitutional jurist.
The last part of the “blueprint” would be a constitutional design process that ensures robust, free and transparent civic engagement. For a participatory process of constitution making to give birth to popular legitimacy, it should be inclusive of all shades of the country's diversity (as practically as possible) – civil society, ethnic and political groups, and refugees. Popular participation would also promote contextualization of any constitutional implants, since people would have a chance to critique. This would ensure that any form of governance adopted, for instance, takes cognizance of or is contextualized to a local or customary system that is widely used and entrenched.
Conclusion
The main claim this article makes is that foreign influence is inevitable, historical and at times necessary in post-conflict societies where international involvement might facilitate consensus building and compromise in a constitutional design process. It constructs an analytical framework referred to as the three-stone constitutional legitimacy theory, drawing its name from three factors compared to the stones on which an African pot stands. The implication of foreign influence impacts internal and external constitutional legitimacy, which requires that the constitutional process and outcomes be satisfactory to both international and national actors. The article posits that attaining a constitutional legitimacy in South Sudan requires following a certain approach, which it refers to as a “blueprint”, a three-part process of ensuring citizens’ participation, the balanced role of elites and the contextualization of all constitutional implants or borrowings.
Competing interests
None
