South Sudan is racing against time to draw up a new constitution in line with the 2015 Peace Agreement, even as the security situation in the country degenerates.
The National Constitution Amendment Committee (NCAC) led by Gichira Kibaara, a former Kenyan Permanent Secretary for Constitutional Affairs, on April 13 presented a draft constitution to the Minister for Justice and Constitutional Affairs, Paulino Wanawilla.
But the country is behind schedule, as the agreement required that the country would have a new constitution 18 months after the establishment of the Transitional Government of National Unity.
The transitional government is now 20 months old and the initial stage of the process — identifying areas to be amended in the South Sudan Transitional Constitution, 2011 to conform with the agreement — has just been completed.
This delay, blamed on the continued conflict, has put doubt that South Sudan will hold elections by 2018 as per the peace agreement.
Mr Kibaara said the Committee reached decisions by consensus, and where consensus was not immediately achievable, the issues would be deferred for further discussion.
“Through this approach, the Committee was able to go through all the provisions of the Constitution and make appropriate amendments. The proposed changes were then incorporated into the Bill that we are handing over today,” he said.
Yet what has been completed is just the technical part of the constitutional reform process.
The next step would be for the minister to table the draft in parliament.
The committee and parliament would then identify articles that need to be amended to conform to the Agreement.
From there, the draft will be taken to the grassroots for consultation and gathering of public views. The constitution review faces two major challenges.
First, the war in the country did not allow NCAC to seek views from the grassroots as had been provided for in the Agreement.
Secondly, the government lacks funds to finance an elaborate constitutional review process since donors have been withholding funding until the country undertakes economic reforms.
Jimmy Deng, the South Sudan deputy ambassador to Kenya, said the delay was expected due to the complexities of implementing the peace agreement.
He said that the biggest challenge is to silence the guns to enable the committee go round the country now collecting the views of the people.
“We have no guarantee we will completely silence the guns, but our main concern is that there are others who are not part of the peace process and we are trying to convince them to join the national dialogue and be part of the constitutional-making,” said Mr Deng.
According to the peace agreement, South Sudan is expected to convene a National Constitutional Conference 27 months from the signing of the peace agreement on August 17, 2015.
This means that the country must collect the views of the public and convene a constitutional conference in the first week of November 2017 — three months to the end of the transitional government of national unity.
The conference would deliberate and agree on a new constitution to pave the way for elections.
Joseph Amanya, a member of the South Sudan Civil Society, said that the insecurity would not allow extensive engagement with the masses because rebel-held areas are considered no-go zones.
Secondly, Mr Amanya said that with the current economic meltdown, it would not be possible for government to finance collection of public views across the country since donors remain hesitant to pump money into South Sudan.
In the run-up to independence in July 2011, South Sudan hastily adopted a transitional constitution that legal experts say was basically a cut-and-paste of the constitution of the mother Sudan that gives excessive powers to the president.