The Social and Political Foundations of Constitutions, 2013
27 Pages Posted: 16 Aug 2013
Date Written: July 2013
In a seven-day referendum held in January 2011, 98.8 percent of Southern Sudanese voters elected to sever Southern Sudan’s ties with the Republic of Sudan and form an independent nation. With the referendum, the Southern Sudanese people gave themselves the right to decide for themselves the core principles that would underlie their new sovereignty.
One of the prerogatives of this sovereignty was adopting a new constitution. In contrast to the populist exercise that enabled South Sudan’s independence, the country’s first constitution was developed and shaped largely by two very different influences: international constitutional models and the political priorities of leaders within the dominant domestic party. It is unsurprising that an important political process would lack meaningful, broad public participation in a country whose parent is notorious for its autocratic rule and abysmal human rights. But what makes South Sudan’s constitution noteworthy is its dualistic structure. That is, the two influences – international models and domestic politics – primarily operated on one of the constitution’s two discrete components, namely, the bill of rights and the structural provisions, respectively. With a few key exceptions, the bill of rights replicates an international template reflecting an emerging global consensus on human rights. In contrast, the document’s structural provisions, although certainly not untouched by external influence, have largely been crafted to advance the priorities of the drafters. Some of these provisions flout both democratic and liberal values, making them quite incongruous with the structural provisions of model democratic countries, such as South Africa, Canada, and Germany. Because of this arrangement, domestic officials and participating foreign consultants can point to their successes in helping codify important human rights, while party and government officials enjoy the fruits of their structural power play.
Keywords: constitutionalism, comparative law, Africa, South Sudan
Suggested Citation: Suggested Citation
Cope, Kevin L., South Sudan's Dualistic Constitution (July 2013). The Social and Political Foundations of Constitutions, 2013. Available at SSRN: https://ssrn.com/abstract=2310815