— Mark Deng, McKenzie Postdoctoral Research Fellow, Melbourne Law School
Every constitution drafted since at least the 18th century has this feature. What is it? If you said ‘constitutional borrowing’, give yourself a pat on the back!
South Sudan’s Transitional Constitution is no exception in this respect. Constitutional borrowing is evidenced in the Transitional Constitution in two interrelated ways. The first is that the Transitional Constitution was born of an internationally negotiated peace agreement, if indirectly. I say indirectly because it is, in many ways, a rework of Southern Sudan’s 2005 Interim Constitution, the drafting of which was required by the Comprehensive Peace Agreement 2005.
The second is that the Transitional Constitution is a conflation of international template and domestic aspirations. Put differently, it is an ‘intermestic’ document. The word intermestic was coined from the words international and domestic. Kevin Cope used this terminology to describe the Transitional Constitution in his 2013 research study.
International template
The international template is evidenced in various provisions of the Transitional Constitution. The first is popular sovereignty (although sovereignty has always inhered in every people from time immemorial, not necessarily a Western conception). The people are the source of power and legitimacy. The power is to be exercised by democratically elected representative institutions. As a matter of fact, democracy, constitutionalism, and the rule of law are foundational constitutional principles said to guide the exercise of political power at all the three levels of government.
The second is the Bill of Rights. This was borrowed from the International Bill of (Human) Rights practically word for word. Described as an enduring covenant between the people and their government, the Bill of Rights serves as a limit on the government and protects certain rights and fundamental freedoms for all citizens, including equality of all people before the law. From the standpoints of popular sovereignty, democracy, the rule of law, and the Bill of Rights, all being elements of Western liberalism, the Transitional Constitution may be described as a liberal constitution.
Domestic aspirations
The domestic aspirations are evidenced in the design of the applicable political system and the executive power provisions. In a sense, they reflect the ideas of South Sudan’s politico-military elites. The applicable political system is decentralisation where the sub-national governments – state governments and local government councils – are given certain powers and autonomy in the Transitional Constitution.
The executive power provisions are perhaps where domestic aspirations are most pronounced. Almost all power is concentrated in the national executive government, particularly the president (Salva Kiir Mayardit is South Sudan’s inaugural and current president). For example, under article 101 (r) of the Transitional Constitution, the president has power to remove an elected state governor from office in the occurrence of a crisis in the governor’s state that purportedly threatens ‘national security and territorial integrity’ of South Sudan. The president has used this power to remove every state governor from office since independence.
This presidential power is counterproductive in many ways. First, it is contrary to democracy, which, as mentioned, is foundational to the Transitional Constitution. Said another way, it undermines the will of the people for the president to dismiss an elected state governor. Second, it unnecessarily subjects state governors to what I have called a ‘tri-confidence’ – that of the people through elections, the state legislative assemblies which have power to impeach state governors, and the president who dismisses state governors at will. Third and finally, the removal of state governors by the president has been seen as politically motivated in most cases. In other words, the president uses this power against state governors who are less loyal to him or those who do not toe the line.
Another executive power that equally speaks volumes of the concentration of power is the creation of new states by the president single-handedly. The president did not have this power initially. It resulted from the 2015 amendment to the Transitional Constitution. The purpose of the amendment, according to parliament, was to ensure efficient discharge of the governmental functions, as well as that it was in the interest of the populace to create more states.
Essentially, the Transitional Constitution has created a strong president. The argument was that the new nation needed such a leader to maintain peace and stability, at least as an interim measure during these times of volatility. However, this argument has proven counterproductive in that the strong president has not been able to secure peace and stability for the country. Rather, he has become the source of political instability, or, as I have argued elsewhere, he has become the source of the people’s traumas. All the armed and unarmed opposition movements in the country, for example, have accused the president of this failure in their declarations.
The strong president, however justified, has rendered ineffective all the liberal aspects of the Transitional Constitution mentioned earlier. As a result, the Transitional Constitution is now seen as an authoritarian law, or better said, President Mayardit’s personal rule book. All hope is not lost, however. The people of South Sudan have an opportunity to chart a new course forward in the upcoming permanent constitution-making process.
Permanent constitution-making: an opportunity to chart a new course forward
Drafting a permanent constitution is one of the state building projects that South Sudan has yet to embark upon. The Transitional Constitution mandates the drafting of a permanent constitution, providing a step-by-step process to be followed. The process first commenced in 2012 with the appointment of the drafting commission. However, the 2013 civil war impacted the process, inevitably altering the government’s priorities. Restoring peace and stability as a matter of urgency became the focus for the government.
The warring parties signed the Revitalised Agreement in 2018, which is being implemented in a frustratingly slow phase. The agreement requires a permanent constitution to be drafted to guide the elections. The elections were supposed to be held at the conclusion of the transitional period in 2022. However, the parties could not meet this deadline and the elections were postponed. Unfortunately, this has become a habit – the elections have been postponed every time they were due purportedly to give the parties sufficient time to resolve issues outstanding in the Revitalised Agreement. The next deadline for the elections is at the end of 2026. It is anyone’s guess whether the parties will this time round be fully committed to drafting a permanent constitution before the elections are held the same year.
But the real concern is that there are no safeguards embedded in the process against elite capture, which, as history shows, is inevitable. Of course, it is not easy to work out such safeguards as constitution-making can be highly contentious an undertaking. What is critical, however, is the will of the political elites to allow the process to operate independently and transparently. Through an independent and transparent process, the people of South Sudan could craft a democratic constitution needed to make the country break with its authoritarian rule and mark a new political era where democracy, constitutionalism, and the rule of law prevail.
Conclusion
While it has benefited much from international template, earning itself the name intermestic constitution, the Transitional Constitution of South Sudan has not been able to provide a strong basis for good governance for the new nation. In large part because power is concentrated in the executive president, creating an environment inconducive to the development of the principles of good governance, such as democracy, constitutionalism, and the rule of law etc.
Still, there is hope. The permanent constitution-making process provides the people of South Sudan with an opportunity to design a new political dispensation where authoritarian rule could potentially be a thing of the past.
Suggested citation: Mark Deng, The ‘Intermestic’ Transitional Constitution of South Sudan Int’l J. Const. L. Blog, Apr. 13, 2025, at: https://www.iconnectblog.com/the-intermestic-transitional-constitution-of-south-sudan/
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