507235

research-article2013
JAS49610.1177/0021909613507235Journal of Asian and African Studiesde Villiers

Article
JAAS
Journal of Asian and African Studies
2014, Vol. 49(6) 654­–671
Federalism in South © The Author(s) 2013
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Sudan—Options for Power Sharing sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0021909613507235
in the Permanent Constitution jas.sagepub.com

Bertus de Villiers
State Administrative Tribunal, Perth, Australia

Abstract
The young nation of South Sudan is currently engaged in a review of its Transitional Constitution with
the aim of finalizing a Permanent Constitution by 2015. One of the key issues the subject of negotiations
is whether the Permanent Constitution should contain power-sharing features and if so, whether those
features should be formal or informal. While it is widely accepted that the Permanent Constitution will
contain federal elements, this article gives consideration to the way in which formal and informal power-
sharing arrangements that are found in federations such as Nigeria, South Africa and Ethiopia, could be
employed by South Sudan.

Keywords
Power sharing, federation, bicameral, government of national unity, second chamber

Introduction
South Sudan has entered into a new phase of its process of democratic transition. The process of
drafting the “Permanent Constitution” to replace the Transitional Constitution is under way.
Discussions and public awareness programs about constitutional options for the young democracy
are taking place across the country and it is hoped that a constitutional model would be developed
that generates wide public support and brings stability to this emerging democracy. The timescale
to conclude the current process of popular consultation and constitutional review is 31 December
2014.
One of the key questions—perhaps the key question—in the constitutional review is what pro-
visions should be made for power-sharing mechanisms in the Permanent Constitution?
It is widely accepted that the Permanent Constitution will have federal or decentralized charac-
teristics, but the make-up of the central institutions and the way in which power is shared within
those institutions is a vexed and unresolved issue. Public opinion has been strong in favor of con-
stitutional arrangements whereby government is made to be inclusive; representative of the

Corresponding author:
Bertus de Villiers, State Administrative Tribunal, 12 St Georges Terrace, Perth, WA 6000, Australia.
Email: bertus.devilliers@justice.wa.gov.au

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de Villiers 655

respective regions and states; and for minority parties to be represented in government—be it on a
temporary or permanent basis (Cook and Moro, 2012).
As in many transitions from some form of authoritarian rule to democratic rule—refer for exam-
ple to debates in Kenya, South Africa, Ethiopia, Iraq, Myanmar, Nepal, Kosovo, Afghanistan—
there are divergent schools of thought in South Sudan about the appropriateness of including in the
Permanent Constitution formal power-sharing arrangements. The views expressed range from
those who believe the Permanent Constitution should contain detailed provisions to guarantee
power sharing in the executive and legislative institutions, to those who contend that power sharing
should best come about as a result of spontaneous cooperation and informal coalitions between
groups and political parties, rather than by way of constitutional prescription. These respective
schools of thought point to selective case studies to justify their propositions.
There is, however, wide agreement that the Permanent Constitution should contain strong
decentralized or federal characteristics(Mathiang, 2013). The use of the word “federal” in the
Permanent Constitution is, however, divisive as a result of the concern that federalism may under-
mine national unity. This concern bears a resemblance to the “f-word” aversion that characterized
the constitution drafting processes in India and South Africa.
The article provides an overview of some of the most important power-sharing arrangements
that have been pursued in federations, for example power sharing through the composition of
the national executive; and power sharing through the composition of a second house of parlia-
ment. Specific attention is paid to the institutional arrangements of relatively young federal
democracies since it is from the experiences of emerging democracies that South Sudan stands
to benefit most.

Federal elements in the Transitional Constitution of South Sudan

Constitution
The Transitional Constitution establishes, in many respects, a federation. This is not to say that the
way in which the Transitional Constitution is implemented or managed complies with the spirit of
a federal constitution or that all the provisions of the Transitional Constitution are consistent with
federal theory and/or practice. On the contrary. Many powers of, and decisions by, the national
government, most notably the discretionary dismissal of state governors by the President (a101(r))
and the recent sacking of the entire national cabinet, remind of other highly centralized systems
where the one who controls the centre, dominates the rest of the country and its institutions of
government. The South Sudan experience under the Transitional Constitution is, however, in many
respects not dissimilar to those of India, Mexico and South Africa where, regardless of the federal
nature of the respective constitutions, the period immediately following the enactment of the first
democratic constitution was characterized by centralization, national interference in state affairs;
and one-party dominance.
Elazar’s description of federalism as a balance of “shared rule” and “self rule” (Elazar, 1987) 1
is widely accepted in modern day federalism theory as an apt summary of the essential character-
istics of federations (de Villiers, 2013). Federalism is, in theory as it is in practice, a many-faced
phenomenon that finds appearance in many different forms, of which a “federation” is one.2 As
Elazar has observed—“ … the essence of federalism is not found in a particular set of institutions,
but in the institutionalization of a particular kind of relationship among the participants in political
life” (Elazar, 1979: 2).
A federation is a form of federalism that refers specifically to an institutional arrangement
whereby according to the Constitution

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656 Journal of Asian and African Studies 49(6)

neither the federal nor the constituent units are constitutionally subordinate to the other, i.e. each has
sovereign powers derived from the constitution rather than from another level of government, each is
empowered to directly deal with its citizens in the exercise of its legislative, executive, and taxing powers,
and each is directly elected by its citizens. (Watts, 2008: 8)

The line that separates federations and decentralized unitary systems can often become blurred,
if not in theory, then most certainly in practice. In essence in unitary systems the decentralized
arrangements are contained in ordinary legislation enacted by the national parliament (eg the UK,
France and Namibia), while in federations the constitution, which is entrenched and can only be
amended by way of special majority and/or procedures, sets out the powers and functions of the
national and state governments (eg India, Germany, South Africa, Malaysia, Brazil). The source
of governmental powers in federations is therefore the national constitution, while in unitary sys-
tems the source of sub-governmental powers is legislation which is enacted by parliament which
is supreme, and parliament may amend, by ordinary majority, any such legislation.
The Transitional Constitution of South Sudan exhibits various federal characteristics although
the word “federation” or “federalism” is not mentioned in the Constitution.3 Those federal charac-
teristics are not necessarily translated into practice since the country is governed from Juba, the
capital city, in a centralized, unitary manner.4
The essential constitutional and institutional characteristics shared by federations as reflected in
the Transitional Constitution are (Ricker, 1964; de Villiers, 2004; Kincaid and Tarr, 2005) as set out
below.

1. In a federation a written, entrenched constitution sets out the basic rules according to which
the federation operates. The federal constitution cannot be amended without compliance with
special procedures and/or special majorities (Ostrom, 1995). The Transitional Constitution
describes South Sudan as a “decentralised multiparty system” (Preamble) with the Constitution
being the “supreme law of the land.” (a3(1)). This is an essential characteristic of a federation
where the constitution is supreme and all government action can be tested for its validity
against the constitution. The Transitional Constitution further provides that all governments
derive their powers from the Constitution; (a3(2)); that all laws must comply with the
Constitution; that the constitutions of the states must comply with the Transitional Constitution;
and that all levels of government shall promote and protect the Transitional Constitution.
(aa3(3), 4(4), 5)). The Transitional Constitution is entrenched and can only be amended by a
two-thirds majority of all members of each house.(a11) The Council of States is solely com-
petent to change the state names, capital towns and boundaries.(a59(g)).
2. In a federation the constitution sets out and guarantees the national and state government’s
powers and functions—although in some of the more recent federal constitutions detailed
provision is also made in the national constitution for the institution of local government,
its powers and functions and matters related thereto (India aa 40 and 243; Nigeria Fourth
Schedule; Brazil aa18, 23 and 29; Iraq aa 12 and 121; South Africa aa 40, 151–164). The
Transitional Constitution of South Sudan obligates the national government to respect the
powers and exercise of those powers by the state and local governments (a48(2). In similar
vein to Chapter 3 of the Constitution of South Africa that deals with the importance of
cooperative government, the Transitional Constitution recognizes the importance of inter-
governmental relations between the respective levels of government (a49). The Transitional
Constitution establishes three levels of government namely national, state and local gov-
ernments (a47). The Transitional Constitution determines that the national government
“shall” respect the powers devolved to the state and local governments (a48(2)(b). The
Transitional Constitution sets out the powers of the national government (Schedule A); the

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de Villiers 657

powers of the states (Schedule B); the concurrent powers (Schedule C); and the residual
powers (Schedule D). The establishment of local government is, as in many federations, the
responsibility of the states (a163(5), although the institution of local government as a dis-
tinct level of government is recognized by the Transitional Constitution (a166).
3. In a federation the judiciary oversees, protects and enforces the constitution, the allocation
of powers to the respective levels of government, and the legality of decision making. The
judiciary in federations is the ultimate interpreter of the constitution and it determines how
decisions and actions by any level of government are impacted upon by the provisions of
the constitution. The judiciary, as guardian of the constitution, is therefore a key element of
federations. The Sudan Transitional Constitution requires that all laws of local, state and
the national governments must comply with the Constitution and that all levels of govern-
ment shall promote democratic principles and political pluralism(a3(3). Although the
Transitional Constitution does not define what is meant by “decentralization” and devolu-
tion,” those terms, when interpreted within the context of the Transitional Constitution,
clearly refer to the constitutional allocation of powers; the respect that governments should
show to one another; and the importance of effective intergovernmental relations to make
the multi-tiered arrangement work effectively (a53(2). Refer for example to the provisions
of a48 of the Transitional Constitution about the key principles to guide the devolution and
exercise of powers.5 The Transitional Constitution obligates the national government to
exercise its powers in accordance with the Constitution and to respect the powers of the
state and local governments(a48(2). The Transitional Constitution provides that the
Supreme Court is to adjudicate about the constitutionality of laws and to determine disputes
arising from the Transitional Constitution(aa126(d–e).
4. In a federation the states are represented in the national legislature, often through a
second house of parliament (Patterson and Mughan, 1999). The second house is the
most common power-sharing institution of federations since this house provides the
states an opportunity to become involved in the national legislative, budgetary and inter-
governmental process. In rare cases provision is also made for local governments to be
represented in the second house: refer for example to the South African National Council
of the Provinces (a67); or for ethnic groups rather than states to form the second house,
refer to Ethiopia’s House of the Federation (a61). The Transitional Constitution estab-
lishes a bicameral National Legislature. The National Legislature comprises the popu-
larly-elected National Legislative Assembly and the Council of States which represents
the states. The houses sit separately and together, depending on the nature of the func-
tions they discharge (aa54(2)–(4), 55, 57). The members of the Council of States are
elected by the respective state assemblies (a58). The details of the electoral system for
the Council of States and the number of representatives per state is yet to be settled in a
National Election Law (a58(1)(b)).
5. In a federation the constitution offers protection of the territorial and institutional integrity
of the states. This means that the constitution protects the states against unilateral amend-
ments of the constitution that may erode their power, or from undue interference by the
national government. The territorial and institutional integrity of states generally means
that the boundaries, powers, functions and/or governmental institutions of states cannot be
removed, altered or interfered with without a constitutionally-prescribed process. The
Transitional Constitution establishes 10 states (a162). Each state is entitled to draft its own
constitution provided that the state constitution is consistent with the Transitional
Constitution.6 Each state may also determine is own capital city and name. The boundaries
of states may only be amended by two-thirds of all the members (not only those present and
voting) of the Council of States (a162(3).

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658 Journal of Asian and African Studies 49(6)

It appears from the above constitutional analysis that the Transitional Constitution of South
Sudan firmly finds itself, at least as far as its institutional arrangements are concerned, within the
family of federal-type constitutions.

Constitutional review process

The Transitional Constitution came into force on 9 July 2011. The Transitional Constitution was
preceded by a series of agreements that facilitated the secession of South Sudan from Sudan
(Johnson, 2011; Jok, 2012). After many years of bloody conflict and civil war the Comprehensive
Peace Agreement (CPA) was signed on 9 January 2005. This was followed by the Interim
National Constitution of the Republic of South Sudan 2005 and the Interim Constitution of
Southern Sudan in 2005. The Transitional Constitution, which remains current, was adopted by
the Southern Sudan Legislative Assembly on 7 July 2011 and signed into law by the President of
South Sudan on 9 July 2011.
The Transitional Constitution remains in force until the adoption of the Permanent Constitution
(a201(2). An elaborate constitutional review process is laid out in the Transitional Constitution for
a new, Permanent Constitution to be negotiated and enacted (Deng, 2013). The constitutional
review process comprises the following key elements (Part Sixteen):

1. The first phase is the appointment and establishment of the National Constitutional Review
Commission (NCRC). This is a body intended to operate independently, albeit that the
members are appointed by the President. The NCRC is responsible for laying the ground
for the constitutional review process (a202). The NCRC has a tri-legged mandate, namely
to conduct civic education on constitutional issues; to review the Transitional Constitution;
and to develop a draft Permanent Constitution. The National Legislature extended the
deadline of the NCRC to 31 December 2014 when it is required to submit a draft Permanent
Constitution for purposes of the second phase of the constitutional review.
2. The second phase of the constitutional review process is the establishment of the National
Constitutional Conference (NCC) (a203). The NCC will receive the draft Permanent
Constitution as recommended by the NCRC and deliberate on the provisions. It must approve
the draft Constitution with a simple majority. The NCC must vote on the draft Permanent
Constitution no later than six months after it has received the proposal from the NCRC.
3. The third phase of the review process is when the draft Permanent Constitution is submitted
to the National Legislature for consideration. The Legislature will receive the draft
Constitution from the NCC and discuss the contents thereof. The Legislature must vote on
the new Permanent Constitution no later than three months after the draft is tabled.
4. The fourth and final phase of the review process is when the draft Permanent Constitution
is presented to the President for assent. The draft Constitution as approved by the National
Legislature is presented to the President for signature.

There are several aspects of the constitutional review that remain to be clarified, for example:

• Is the Transitional Constitution to be used as the basis for the review or should an entirely
new Permanent Constitution be drafted?
• Is popular consultation being used to educate or to obtain views and inputs for the Permanent
Constitution?
• The decision-making mechanisms of the National Constitutional Review Commission
remain to be clarified (a203(3)(d).7

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