Alfred Sebit Lokuji

14 January 2018

Introduction

South Sudan is a whirl-pool in which those caught in the currents appear unable to regain both their coordinates as well as composure. The aura of self- importance and infallibility on the side of government is so strong that a libertarian would die of asphyxia just for coming close to them. On the other hand, there is such diversity in the opposition to the government that the cacophony of views makes it often very difficult to discern exactly what it is that each would like to have fixed in South Sudan. I take the challenge to analyse some of these perspectives, without attribution to anyone, to avoid diversion from the very matters that so urgently need to be addressed. The classic three blind men are replicated in discussions about South Sudan, such that what they conceptualize as “the elephant problem” is determined by what each one feels.

The Elusive(s) Problem of South Sudan

The foremost thought that comes to mind, for many, is that South Sudan suffers from an ethnic virus – and no one knows the cure. Those who subscribe to this feel so strongly about it that they are ready to make all their decisions based on the single criterion of ethnicity. Two or more tribes are singled out as the foremost fomenters of unrest – inevitably with an abundance of anecdotal evidence ranging from roaming cattle to undisciplined soldiers and monopoly of government positions.

The problem with this focus is that “ethnicity” – fallaciously considered the sole predictor of political chaos, even leading to a “failed” state – does not carry external validity (to other nation-states that are equally endowed (or cursed if you wish) with a multiplicity of ethnic groups). Apart from Somalia and the “Arab” countries in North Africa, almost all of the Sub-Sahara African countries are home to numerous groups that vary in color, hair texture, language, history, culture, etc. In spite of this shared reality, many countries have demonstrated superior wit in the manner in which they have kept ethnic diversity within manageable proportions. It is generally agreed that huge Tanzania carries the trophy for managing ethnic diversity towards a solid nationalist identity. Difficult as it maybe for some to put aside hatred for specific ethnic groups, a cursory examination of Africa and other multi-ethnic contexts rules out “ethnicity” as a demon that explains failure in South Sudan’s nation building.

Another powerful temptation is to pin all South Sudan’s problems to “leadership”! While there maybe a ring of truth to this, a valid question that cannot be avoided is whether or not South Sudan is the only country in the world to have the least gifted become the nation’s leaders. Trecherous as this path maybe, let us simply pose questions about other nation-states that appear to be surviving the crisis of leadership. One that readily comes to mind is North Korea! Regardless of how disturbed one might think its leader is, it is causing shudders of dread with its atomic program. I dare point out that the USA, a bit rocked by Trump, is not about to fail because of, or in spite of Trump. Just as ethnicity should not be taken as the total explanation for a situation, so is “leadership” – “a necessary but not sufficient condition” as they used to say in the old school – to explain the relationship between particular that determine the outcome of events.

There are as many reasons to explain failure, as there are people ready to offer an opinion. These opinions would provide an array of other factors that could provide layman’s credentials as candidates to explain failure in South Sudan. Although there is politically correct talk of equality with women, everything has been rigidly held in place in the cultural sphere to ensure that they remain subservient to men! Much is sung about the education of youth – but no room is made for the youth, even when the corpse of the mzee is returned from failed treatment in India! The chorus of economic development is deafening when it is cushioned in the deceptive jargon of “taking the city to the village”! Easy to construct a litary of excuses for the failure in South Sudan! Most unfortunately, this is often done with little or no focus on engaging in methodologies that would resolve the problem(s).

What has not gotten any attention whatsoever are the philosophical foundations of any nation, South Sudan included! In the first place, the “social contract” that made Sudan one country was fictitious, with no philosopher kings in Khartoum to turn it into a reality in action. On the contrary, Khartoum devotedly directed its attention to undermining social/ethnic sectors that were assumed to have been part of the contract from which “Sudan” emerged. It carried this policy one step too far with regard to South Sudan – the consequence being the South distancing itself from that contract resoundingly on 9th July 2011.

Now, in turn, the Res Publica of South Sudan has failed (it is doubtful that it has the capacity to comprehend the nature of the new South Sudanese social contract). Stated simply: the Dinka, Nuer, Bari, Azande – and all 64 or so ethnic communities of South Sudan have age-old social contracts that have kept them together in the face of diverse adversities ranging from slavery to internecine debt wars. South Sudanese now have assumed a “social contract” that binds them together, in their ethnic diversity, as one un-divided nation! Here we come to the real problem which can be stated thus: Having the “social contract” of a new nation “ex pluribus” (out of many tribes) – it would now behove South Sudanese to subscribe to the theory and practice that the “Nation” is irrefutably the larger body to which all sections and sub-sections should now surrender in allegiance to all its laws, rules, and regulations! The failure of significant numbers in the leadership to understand this, and the unwillingness of many more to appreciate the consequences of this new South Sudanese national contract, is at the heart of the failure in the construction of the South Sudan nation. It is along this line of thinking that I advance the solution(s) to South Sudan’s failing nation-building experiment.

The Dictates of a South Sudanese National “Social Contract”

There should be no hesitation to accept the proposition that, becoming a nation being our common objective, the 64 constituent parts of this new nation, while preserving the historical identities, need to make the conscious decision that they are now, “above everything” else, South Sudanese. Once this bridge is crossed, the business of going about making the 64 ethnicities flourish under one flag should not be rocket science.

First and foremost, the “social contract” is captured in the nation’s Constitution – where everyone is equal before the law. The first monumental mistake some of the architects of the constitution made was to draft it as if it was for one particular person or one particular party! And there is where it failed its first test – universality and infinity (usually described in terms such as “permanent constitution”). There were opportunities to allign these attitudes with the nationalist project, unfortunately, the amateur architects worsened matters as they succumbed to the “my constitution” utterances of Salva Kiir in 2011. In spite of the gruesome realities of 2016, those within the fort have not opened their windows to allow the wind of new ideas and new solutions to penetrate the siege mentality that they have assumed for themselves.

The National Permanent Constitution, having dealt with the basic pillars (structure) of governance (the Legislature, the Executive, and the Judiciary), creates a relatively easy environment in which other governance rules and regulations (synchronized with the constitution) can be initiated and adopted by constitutionally laid down procedures. In the national scheme of republican government, institutions draw their powers and functions from the constitution, not from just one branch of government such as the presidency. When the job of the national broadcaster becomes the announcement of new presidential decrees, it should escape no one that something has gone terribly wrong. Indeed, the signals that the executive branch had become disproportinately a monster, vis-a-vis the other two institutions of the Legislature and the Judiciary have been clear enough for anyone who cared to see – the difficulty remaining to develop the resolve to do something about it. Kiir himselve hugely contributed to this difficulty as he seemed to lack the capacity to comprehend the nature of the matter – Kiir is not the Presidency, he is the individual who occupies that position at a particular time!

Choosing Appropriate Forms of Government

The youthfulness of the legal fraternity creates a jungle of soft-baked ideas about forms of government such that, in the height of passions to please the chief executive, these legal architects forgot about the differences and similarities between systems of Government: Presidential or Cabinet (Parliamentary); and Unitary as different from Federal.1 Briefly, a Presidential system is such as operates in the United States – the president and the legislature are separately elected; and each exercises its own powers without undue interference except as legal procedures require cooperation (e.g. presidential signature for bills to become laws). The American system of checks and balances between the three institutions of government sets it apart. It has largley failed in Africa due to the endemic urges for an imperial presidency, not a constitutionally limited one.

In contrast, the Cabinet system (also referred to as Parliamentary), the executive is indirectly determined by the practice that the party that wins the majority in the legislature are entitled to appoint the chief executive (Prime Minister). The President of South Sudan exerts all efforts to control the legislature as if he were a Prime Minister – when he is neither a member of the Assembly, nor is his tenure of office determined by a continuous support by a majority in Parliament. In fact, the president can still hold office and rule, even when the majority in parliament belongs to the opposition.

Furthermore, the South Sudan, for all practical purposes, is a federal system when it had 10 states – each was granted powers by the constitution to have its own legislature, executive, and judiciary. The entire national hierarchy did not understand the federal system that was handed down by the CPA (2005) and, along with the subservient lawyers in their service, seem to have made it a career to treat South Sudan as if it was a unitary system – in which the national power controls all units, that it can remove or create as it wishes – leading to the trashing of the 10 states and replacing them with districts under the executive’s thumb. In a federal system, relations are dictated by the constitution – not by the President and the Ministry of Legal Affairs.

There is a growing cry from those who feel most hurt by ethnic power hegemonies and seem now settled on adopting a “Confederal System of Government” – with the three regions as the constitutent members in the new confederacy.

Unfortunately, the misbehaviour of persons and institutions operating outside the rule of law have wrongly convinced segments of South Sudanese society that their saviour is confederation. Without belaboring the issue, there are a number of factual considerations that should be taken into account in order to arrive at conclusions as to the way forward.

First, and foremost, a confederation is generally a result of independent states joining together to form a union (confederation). There are no independent states in South Sudan to consider such a proposition. The US confederation (1776-1789) failed and was replaced by the United States Constitution (1789 – ) which has lasted with a few amendments. The Confederation of Southern Rhodesia (Zimbabwe), Northern Rhodesia (Zambia), and Nyasaland (Malawi) fell apart when each became an independent country – thus, only the British colonial government kept it together. The East African Community more or less existed as a Confederation – and collapsed due to the inherent desire to be autonomous vis-a-vis the common uniting power. A cursory revisiting of histories of confederations suggests South Sudan, if it broke into confederal states, would simply be falling from the frying pan into the fire!

South Sudan is a land-locked country, that would turn into three land-locked countries that would succumb to the pressures from neighbours to behave like their economic hinterlands (a fact South Sudan has faced since 2005). The gist of this argument is that Confederation in not a solution to South Sudan’s current woes – Consitutionalism (the Rule of Law) is! Nation building is not an easy overnight task! The ritual blood for this to happen has been shed. Abandoning the nation-building project now is subjecting the present and future citizens of the three regions to unnecessary prolonged experimentation with nation-building.

Conclusion

In view of all of the above, the current Revitalization Talks should be taken seriously by all South Sudanese, regardless of the political label they pin on themselves. The task, as per the above, is clear: put in place formidable governance instituons that have worked well elsewhere, and stick to the legal requirements to make it work. Fundamentally, it means accepting that the 64 tribes have subjected themselves to be members of one nation, one constitution, and all sworn to upholding the rule of law without regard to ethnicity, age, career, or office! It would be a most unfortunate outcome if participants in the Revitalization talks focus again on how parties in the conflict should divide the imaginary cake!