What is in it for Them? Guarantees for Protecting Minorities Under the Constitutional Regime in South Sudan

Joseph Geng Akech

Human rights & constitutional lawyer

Minorities, whether ethnic, linguistic, cultural, or political, are groups that require constitutional protection. Ethnic minorities risk exclusion from political processes and other contested public spheres unless their rights are guaranteed in a constitution. The constitution-building process currently underway in South Sudan is an opportunity to achieve such a goal. In this context, this post proposes three substantive and institutional recommendations to guarantee the rights of minorities. First, it recommends that ethnic minorities should be granted veto powers in matters touching on their cultures and languages, as well as their civil and political rights. Such a veto power must, however, be exercised in conformity with the bill of rights in the country’s Constitution. Second, it recommends establishing a Constitutional Court to enforce these constitutional guarantees for the protection of minorities. Third, it proposes strengthening national and sub-national human rights commissions to document and report to parliament, annually, on the protection of minorities.

Defining Minorities in Terms of Constitutional Protection

Although there is no universally agreed definition of minorities, the United Nations defines minorities as peoples who, ‘based on national or ethnic, cultural, religious and linguistic identity, States should protect’. States are thus expected to ensure strong constitutional guarantees for the protection of minorities in their territories. For South Sudan, this would mean ensuring that the ‘permanent’ Constitution protects all minorities. South Sudan is said to comprise 64 nationalities or ethnic groups, some of which are smaller than others. The largest are probably the Dinka, Nuer, Azande and Shilluk with a composite of Bari-speaking nationalities constituting a sizeable number. Ethnic and linguistic groupings are important aspects of minority status.

Beyond ethno-classism, one can also talk about those who hold certain socio-political values and beliefs and who might identify as minorities. The ever-widening ideation camps on certain issues serve as an example in this regard. For instance, discourse on federalism has created oppositional camps mimicking divisive ethnic and regional histories. Similarly, minorities could emerge in the dialogue between proponents of a strong bill of rights on the one hand and advocates of robust customary normative frameworks on the other.

In this way, minorities may be classified into ethnic nationality groupings, linguistic groupings and issue-based constituencies. Irrespective of minority orientation or status, the question that arises is what constitutional guarantees for the protection of minorities should South Sudan adopt? 

Constitutional Guarantees for Protecting Minority Rights

There are several constitutional guarantees and mechanisms that South Sudan could adopt in protecting its minorities. These approaches can be categorised into two segments: (a) bills of rights and (b) institutional frameworks. Others describe this as a dualistic constitutional construct comprising a robust bill of rights on the one hand, and a corresponding institutional machinery to enforce implementation, on the other.

The Transitional Constitution of the Republic of South Sudan, 2011 (as amended) stipulates a rich bill of rights (articles 9-34) covering civil and political rights as well as socio-economic and cultural rights. The nature of the bill of rights is expressed as a covenant among and between South Sudanese, on one hand, and with their government, on the other. This creates both vertical (people and government) and horizontal (between the people) accountability in the fulfilment of constitutionally guaranteed rights. Article 9 of the Transitional Constitution states:

‘The Bill of Rights is a covenant among the people of South Sudan and between them and their government at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the cornerstone of social justice, equality and democracy. The rights and freedoms of individuals and groups [including religious rights and freedoms] enshrined in this Bill shall be respected, upheld and promoted by all organs and agencies of Government and by all persons’ (italicised text for emphasis).

While this bill of rights is expected to wholesomely transition into the ‘permanent’ Constitution, rights that are constitutionally guaranteed but cannot be enjoyed in practice are mere entitlements in vain. Avoiding this outcome would require setting up and fortifying independent institutional frameworks to promote and protect human rights of minorities.

The 2011 Transitional Constitution, as amended, is criticised for lacking correspondingly teethed institutions to promote and protect the bill of rights. The lack of a strong and independent judiciary, ill-resourced human rights institutions, weak law enforcement agencies and fragmented customary institutions have impeded access to enforcement mechanisms and denied the enjoyment of these rights. Kevin Cope discusses this anomaly of poor constitutional framing which he refers to as dualistic and intermestic constitutionalism. He characterises both processes as the existence of a strong bill of rights (transplanted by foreign actors engaged in constitution-building at the time), but with no corresponding institutional framework to enforce it. 

Conclusion and Recommendations

South Sudan’s constitution-building process provides an opportunity to anticipate and address constitutional challenges such as the guarantees and mechanisms for the protection of minorities. I argue that South Sudan’s constitution building process should adopt the following policy choices: 

First, it is prudent to establish a constitutional court with a mandate to interpret the constitution and to provide jurisprudential guidance in human rights and other constitutional questions. Although the Transitional Constitution does not establish an independent Constitutional Court, it enjoins the Supreme Court of South Sudan to convene as a constitutional panel. When it does so, it assumes original and final jurisdiction and the competence to entertain any constitutional question, whether interpretation or dispute resolution matters as expressed under article 16(2) of the Constitution. The Revitalised Agreement on the Resolution Conflict in the Republic of South Sudan (R-ARCSS) cures this lacuna by proposing an independent Constitutional Court. Once established, a constitutional court could serve as one of the mechanisms for protecting minorities in South Sudan.

Second, it is important to strengthen the South Sudan Human Rights Commission by enhancing its monitoring mandate, increasing its resources and strengthening its operational independence, including its technical competencies. It is to be noted that the South Sudan Human Rights Commission is empowered by article 9(4) of the Transitional Constitution to ‘uphold and monitor the bill of rights’ as an independent ombudsman. That mandate should extend to the protection of the rights of minorities.

Third, the ‘permanent’ Constitution should establish a federal system of governance. Both the Transitional Constitution and the R-ACRSS ring-fence federalism as the system of governance under the ‘permanent’ Constitution. Notwithstanding the type of federalism to be adopted, constitutional protection of the rights of minorities ought to be prioritised. In this regard, two proposals may be made. First, to ensure that minorities, especially ethnic minorities who risk assimilation and marginalisation are given veto power in matters such as language, culture or political way of life. This would mean that no law may be passed by the federal or state government to diminish the enjoyment of a right to language, positive culture and political belonging. Second, to establish a proportional representational system in which ethnic minorities can form alliances with other smaller groups to forge a common position. This would buttress their protection as minorities within a South Sudan’s pluralistic political sphere.

Dr. Joseph Geng Akech is a South Sudanese human rights and constitutional lawyer

Suggested Citation: Joseph Geng Akech, ‘What is in it for them? Guarantees for protecting minorities under the constitutional regime in South Sudan’ IACL-AIDC Blog (15 March 2022) https://blog-iacl-aidc.org/new-blog-3/2022/3/15/what-is-in-it-for-them-guarantees-for-protecting-minorities-under-the-constitutional-regime-in-south-sudan.