South Sudan’s constitution-making: Balancing the interests of zol kebir and zol miskin

Joseph Geng Akech

University of Juba

South Sudan descended into conflict in December 2013 due to a lack of an effective constitutional settlement coupled with a longstanding rivalry among the strongmen of the Sudan People’s Liberation Movement. The conflict was halted through a peace deal: the Revitalised Peace Agreement on the Resolution of Conflict in South Sudan signed in 2018. That Agreement resulted in the formation of a unity government and reinstated the constitution-making process which had been impacted by the conflict. The unity government has so far passed a law – the Constitution-Making Process Act 2022 (CMPA) – to guide the process of constitution-making. However, the CMPA has emboldened unelected elite signatories to the Peace Agreement to lead the process, with limited prospects for popular participation.

The absence of popular voices of zol miskin (the so-called ordinary citizen) may undermine the legitimacy of the resulting constitution. However, it is argued that balancing the interests of zol kebir (the elite) and zol miskin (the ordinary citizen) may forestall the risk of elite capture. This is so for two main reasons. First, constitution-making in a post-conflict context is often controlled by those who negotiated the terms of a peace agreement. For South Sudan, the Revitalised Peace Agreement––signed only by a handful of elites––is a rule-making framework against which the so-called ‘permanent’ constitution is premised. Second, those elites who signed the Revitalised Peace Agreement have given themselves unfettered control in, and influence over, the constitution-making process. The fact of elite capture is evident in the CMPA, which grants parties to the Agreement a greater role in the constitution-making mechanisms. This situation––including a toxic civic ecosystem––is likely to diminish the voices of zol miskin and threaten the legitimacy of the resulting constitution.

To avert this imbalance and the related risks, this post recommends broad-based, robust, and meaningful participation of zol miskin in the constitution-making process; and the institutionalisation of elite engagement in constitution-making by allowing only legitimate political institutions (registered political parties) to have some form of influence.

What Is a Constitution for Zol Kebir?

The making of a constitution is, among other things, a political process contested––often, but not always––by national elites (referred to in South Sudan as naz kubaar­­, plural or zol kebir, singular) on the one hand, and ordinary citizens (referred to in South Sudan as masaakin, plural or zol miskin, singular), on the other. Naz kubaar and masaakin are loose Arabic words for elites and ordinary citizens, respectively. These words are often used among the linguistic constituency of the so-called Juba Arabic which is slowly becoming a pidgin version of classical Arabic language.

Naz kubaar usually include political forces, the military, civil society leaders and other influential elite groups. An example of naz kubaar in the context of South Sudan would be the parties signatory to the Revitalised Peace Agreement under whose dominance, command and control a constitution-making process for a ‘permanent’ constitution is being adopted.

A constitution for zol kebir means an elite-controlled constitution, which would likely lead to elite capture of power, resources, and the state. By contrast, a constitution for zol miskin would be a constitution adopted through participatory and inclusive approaches. Whereas both zol kebir and zol miskin have varying degrees of influence in a constitutional construct, the consent of the latter is arguably the fulcrum upon which a constitution attains popular legitimacy.

This post examines the hypothesis that the South Sudanese constitution-making process under the CMPA may birth a constitution for zol kebir, not a constitution for zol miskin. This premise is tested against marked evidence in which naz kubaar dominate over masaakin in the constitutional design process.

Does the CMPA Generate a Constitution for Zol Kebir?

The Revitalised Peace Agreement provides a process for permanent constitution-making, laying down the principles and parameters governing constitutional design, adoption, and ratification. The process commenced with a workshop of the parties and stakeholders to frame the legislation to guide the constitution-making process. The deliberations of the workshop informed the draft Constitution-Making Process Bill which was passed by the Transitional National Legislative Assembly and assented to by the President in December 2022, becoming the CMPA.

The CMPA established six mechanisms with a collective mandate to lead the adoption of the ‘permanent’ Constitution for the Republic of South Sudan. These mechanisms are:

·       Reconstituted National Constitutional Review Commission;

·       Constitutional Drafting Committee;

·       Preparatory Sub-Committee;

·       National Constitutional Conference;

·       Constituent Assembly (reconstituted National Transitional Legislature); and

·       Secretariat of the Commission.

It is worth noting that these constitution-making mechanisms have not yet been established at the time of writing. This is in spite of the fact that the CMPA commands the Executive of the Reconstituted Transitional Government of National Unity (RTGoNU) to establish them within 45 days of the coming into force of the Act. This means that the mechanisms should have been established by February 2023.

When established, the mechanisms are to be guided by a set of principles under the CMPA which the process of ‘permanent’ constitution-making must seek to realise.  These are:

·      The supremacy of the people of South Sudan;

·      Initiating a federal and democratic system of government;

·     Guaranteeing peace and stability, national unity and territorial integrity, including a culture of peaceful resolution of disputes;

·      Promoting people’s participation in governance;

·      Respecting ethnic and regional diversity; and

·      Promoting international cooperation.

The above principles of constitution-making represent the aspirations of zol miskin without which a resulting document would lack legitimacy. When viewed critically, the aforementioned principles promote popular participation not only in constitution-making, but also in shaping the type of governance South Sudan should adopt. Yet there is a risk that this aspiration may not be achieved given that the CMPA grants parties to the Revitalised Peace Agreement exclusive power to appoint individuals to the constitution-making mechanisms. It is in this context that the policy shifts suggested in this post ought to be implemented to avert a risk of constitutionalising the interests of zol kebir to the exclusion of zol miskin.

Balancing interests of zol kebir and zol miskin: Policy Considerations

Constitution-making is a contest – announced or unannounced – among and between zol kebir and zol miskin which requires balancing interests to achieve sufficient consensus.  This balance can be realised in the following ways:

First, parties to the Revitalised Peace Agreement must not control the mechanisms of constitution-making process. Instead, they should organise themselves within the framework of their political parties and engage with the constitution-making process through written submissions. This way, registered political parties’ engagement, influence, and participation are likely to be informed by persuasive politics and civility rather than the prevailing “gun” mentality.

Second, the ratification of the final constitutional text of the ‘permanent’ constitution should take place only after the national legislature (constituent assembly) has been sent on a recess to engage with zol miskin on the contents of the constitution. All members of the national legislature should be allowed to visit their constituencies before they come back to deliberate and ratify the constitution.

Third, deliberations within the constitution-making process should be open to the public to listen. This will increase transparency and citizens’ engagement with the process. This may be done through live radio coverage with support from international partners such as Radio Miriya of the United Nations Mission in South Sudan.

Last, establish and where they exist, strengthen mechanisms of dispute resolution, including establishing a Constitutional Court and reconstituting the Political Parties Council as avenues through which citizens can raise concerns if there is a genuine reason to believe that the process is being captured by zol kebir to the detriment of zol miskin. It must be noted that the Revitalised Peace Agreement already stipulates that a Constitutional Court should be established, and the Political Parties Act is already in place. Thus, what remains in their implementation to facilitate dispute resolution around the constitution-making process.

Banner displayed around University of Juba round-about (Photo taken by the author)

Dr Joseph Geng Akech is Assistant Professor in the School of Law at the University of Juba, South Sudan. He researches constitutional design, human rights and transitional justice.

Suggested Citation: Joseph Geng Akech, ‘South Sudan’s constitution-making: Balancing the interests of zol kebir and zol miskin’ IACL-AIDC Blog (31 August 2023) https://blog-iacl-aidc.org/2023-posts/2023/8/29/south-sudans-constitution-making-balancing-the-interests-of-zol-kebir-and-zol-miskin