Author: Joseph Geng Akech
South Sudanese human rights lawyer and LLD candidate, University of Pretoria, South Africa
New nations struggle to find their route to stability, and they have the opportunity to learn from those which have already travelled the path towards nation-building. The birth of South Sudan was received with joy, far and wide, as it emerged out of decades of sacrifices for principles that every South Sudanese believe in – justice, liberty and prosperity. The hard-won new State was born with much hope, but it rapidly became a monster of its own making. Consumed by senseless wars, endemic corruption and underdevelopment – iniquities which fomented popular resistance and drove the need for secession.
With the establishment of their own state, the people of South Sudan soon began to ask themselves: is this the South Sudan we want? This article argues that South Sudan needs to reposition herself within the framework of the founding principles, standards and norms shaped by liberty, justice and prosperity for all. Only then can the new nation begin to address the challenges which this article attempts to highlight.
This article suggests four critical intervention areas if South Sudan is to turn things around and build a strong and secure nation for all its people. They include:
(i) Silencing the guns;
(ii) Reconciling divided communities and ensuring justice and accountability for human rights abuses;
(iii) Establishing equitable mechanisms for wealth sharing; and
(iv) ensuring participatory permanent constitution-making process
When one speaks to a South Sudanese citizen about the contemporary state of affairs in the country, the likely sentiment one will hear will be, this is not the South Sudan we want or wished for. Heavy hearts abound amongst war veterans and civilians who joined and led the struggle against pernicious northern Arab rulers. The decades of conflict in the Sudan had denied development to the South Sudanese, whose hopes and aspirations were firmly pegged on self-rule in an autonomous region or an independent country where equality in diversity would reside. Various political organisations were formed to pursue this cause, but the formidable political and military force was the Sudan People’s Liberation Movement/Army (SPLM/A). The SPLM/A had assured the peoples of Sudan, peace, justice, equitable development and freedom, theorised in a polemic hypothesis referred to as the New Sudan. It was a dream, and within it, lay the objective of establishing an independent state in the south where justice, equality and prosperity would characterise its governance – symbolising a stark departure from the totalitarian system in the Sudan.
Through a referendum on self-determination, conducted under the Comprehensive Peace Agreement (CPA) – a pact signed between SPLM/A and the Sudan government – the people of Southern Sudan voted in favour of independence by 98.8 per cent leading to the new nation’s flag being raised amongst nations of the world. Having achieved independence, why are the South Sudanese still asking themselves about the South Sudan they want and how they can achieve it? Several scholars have attempted to answer these questions in diagnosing what went wrong and what can be done to overcome the challenges besieging the young nation. This article approaches these questions from a constitution- building point of view. It attempts to explain current conundrums within the framework of the toxic power struggle and societal militarisation that has provided fertile ground for the pervasive ethnic violence which is tearing apart the nation. The article discusses ‘the dream nation’ in terms of the standards, norms and aspirations articulated by the SPLM/A and which the Transitional Constitution, 2011 absorbed (II). It argues that exemplary principles, standards, norms underpin the South Sudan we want and that to get there, the nation has to overcome multiple transitional stage challenges and barriers to building a democratic society (III).
2 The dream nation: The South Sudan we want
Friday 9 July 2021 marks the 10th independence anniversary of the world’s newest country’s independence. As noted earlier, the positivity of independence turned into despair with self-inflicted conflicts of 2013 and 2016 respectively. These conflicts threatened or even frustrated the South Sudan most South Sudanese dreamt for. The idea inherent in this article is not to survey popular views about (dis)satisfaction with the state of affairs, rather, it is to critically examine South Sudan’s prevailing challenges on a range of priority areas which a new nation emerging out of conflict inevitably will travel. Hence, the mantra the South Sudan we want becomes a captivating standpoint from where to approach such analysis. It is an open secret that the popular sentiment amongst the South Sudanese is that the nation they fought for should conceptually differ from the one they left behind – the Khartoum regime. Whether this requires walking away from the shadows of our former oppressor, or imitating their tactics and ideas, is a matter for another day. But, for the purposes of this article, the starting point, imperfect as it may be, should be the ideas popularised by the SPLM/A during the protracted armed struggle, and which the Transitional Constitution adopted. This article does the same as it was these ideas that defined the South Sudan we want and galvanised the Southern Sudanese to rally behind the SPLM/A during the war. These notions were also later incorporated into the highest law of the land – the Transitional Constitution. The South Sudan we want is therefore one built on liberty, justice and prosperity which is a strong constitutional democracy, adhering to the rule of law and which respects and supports human rights to thrive.
2.1 Liberty, justice and prosperity
In founding the new nation, the drafters affirmed their commitment to ‘lay the foundation for a united, peaceful and prosperous society based on the principles of justice, equality, respect for human rights and the rule of law.’ To ensure this is imprinted in every citizen’s heart, the Coat of Arms encapsulates liberty, justice and prosperity’ as a reminder that South Sudan is built on such values. These values therefore symbolise the South Sudan we want. It is imperative, therefore, to adopt multifaceted interventions, based on the highest principles, standards and norms, to fulfil people’s aspirations and to build the nation we want.
2.2 Constitutional democracy, rule of law and respect for human rights
South Sudan ought to be a nation in which democracy, rule of law and respect for human rights prevail. Of course, a country cannot achieve constitutional rule if it departs from the founding principles, standards and norms, in this case, liberty, justice and prosperity, as they are preconditions upon which a democratic and prosperous society can emerge. If these values are adopted as defining the South Sudan we want, just as the drafters of the Transitional Constitution did, what then can a nation engulfed in self-harm, endemic corruption and insecurity, do, to overcome these hurdles and realise the envisaged State? The next section analyses the myriad of challenges South Sudan must faces to claim her place amongst democratic nations.
3 Achieving the South Sudan we want: Overcoming multiple transitions
The new nation was born with the unprecedented burden of cumulative expectations and dreams of all the South Sudanese for a prosperous country. There was a desire to show that the new State would be different in every way from that which they seceded from. Yet, multiple transitions – lack of unity amongst South Sudanese, external influence from frontline states and other entities and serious underdevelopment continue to hinder and seriously challenge the building of a new State, resulting over time in reducing the dream to dust, resulting in despair. As Hilde Johnson highlights, the ‘sceptics were proven right’, as the new darling of the world soon turned into a burden and nightmare – in desperate perpetual need of humanitarian assistance to keep its anguishing population alive. To escape this situation and achieve the South Sudan we want, this article proposes four critical interventions which can reverse the nation’s underdevelopment, poverty and insecurity, and can usher in prosperity, justice and liberty.
3.1 Silencing the guns
Much of South Sudan’s suffering is self-inflicted and done with using guns. No country can possibly develop whilst in a state of constant war and conflict with civilians and paramilitary personnel being able to use guns outside the purview of the State. This is not only a dangerous situation, it completely goes against the basic principles, standards and norms of equality and security required to galvanise a population into a movement for nation building – something which cannot be done in a culture of fear and intimidation. Recognising the importance of security in nation building, the African Union championed a policy framework urging all member States to silence their guns by the year 2020. In its roadmap, the AU outlines practical actions to silence the guns which include calls to:
- address root causes of conflict including economic and social disparities;
- end impunity by strengthening national accountability mechanisms;
- eradicate and address recurrent and emerging sources of conflict, including armed rebellions; and
- promote peacebuilding and social co-existence.
These practical actions suggested by the AU are relevant for South Sudan to move towards silencing their guns. Addressing root causes will support the people-to-people reconciliation initiatives. Reconciliation must also include reparation, and this will build trust and confidence in people to engage with national accountability mechanisms. The state must provide security in exchange for civilians to give up their arms, and security deployments to hotspots should prevent recurring attacks and counterattacks. To be trusted by the local people, the State security systems and personnel will need an overhaul – better trained on rules governing the use of force and equipped with requisite military and security equipment, but more importantly, they should have a full understanding of and commit to the values upon which the nation is founded.
3.2 Reconciling divided communities: Justice and accountability
South Sudan must embark on a well-managed programme of reconciliation and justice. A nation divided cannot stand strong. It will remain weak if it does not acknowledge and address the deep divisions, mistrust and suspicions that persist among people. The attempt to establish the Revitalised Government of National Unity (RGNoU) is insufficient to reconcile these differences. What is required is a careful and well-thought-out implementation of the Commission for Truth, Reconciliation and Healing (CTRH), and the setting up of the Hybrid Court for South Sudan (HCSS) & the Compensation and Reparation Authority (CRA). Even as this opinion piece is being written, scores of human rights abuses are reportedly being committed by armed civilians engaged in endless inter-communal attacks.
Energy now invested in engineering killings, cattle raids and attacks on people, can be better utilised to build the economy, strengthen security, rebuild the health, education and agriculture sectors. A prosperous society cannot be achieved if ethnic groups opposed to each other constantly engage in destructive activities, rather than resolve disputes through peaceful means. Helping communities to reconcile, will require working with political elites to accept non-violent, democratic and pluralistic politics and norms. It would require that their politics and supporters are not drawn from ethnic divides. The reconciliation envisaged here, must incorporate justice and not only look to forgiveness. Mere pardons and amnesties only could frustrate the principles and aims of reconciliation and accountability, and only result in more frustration and anger, leading to an escalation in conflict. Once communities have reconciled and some form of justice and rule of law prevails, there needs to be equitable access to national wealth.
3.3 Establishing equitable mechanisms for wealth sharing
John Garang, the first leader of the SPLM/A said that natural wealth should be used as an engine for economic growth and development, especially in the South. Scholars in nation building agree with John Garang when they say ‘equitable access to natural wealth and equitable wealth sharing is paramount to rebuilding a nation and fostering patriotism and a sense of belonging’. It may be useful to understand and utilise the Game Theory to shape future strategies – self-interest can be harnessed to address common interest too – one ethnic groups needs can serve every other groups needs too – for example, address a territorial dispute for one ethnic group, and it will result in them trusting the government more and supporting peace building – something which addresses the needs of all other groups too.
Acknowledging the inequalities created by the prolonged civil war in the South, the drafters of our Transitional Constitution were ‘conscious of the need to manage our natural resources sustainably and efficiently for the benefit of the present and future generations and to eradicate poverty and attain […] development goals.’ This is further reinforced, albeit non-binding, by the same Constitution which directs that ‘public resources should be focused on improving lives by building roads, schools, airports, community institutions, hospitals, providing clean water, food security, electric power and telecommunication services to every part of the country’ and that the nation’s economic objectives should be ‘eradication of poverty, attainment of development goals, guaranteeing the equitable distribution of wealth, redressing imbalances of income and achieving a decent standard of life for the people of South Sudan.’
3.4 Building an inclusive constitutional framework
The raising of the South Sudanese flag did not set the nation on the path to constitutional democracy. The Transitional Constitution, 2011, is just a placeholder for a permanent social contract which must be inclusive of all ethnic groups, stakeholders and other interest groups. An inclusive constitution is therefore the hallmark of a stable democracy. As my ongoing doctoral research on constitution building in South Sudan reveals, three fundamental aspects of constitution building are critical for a new nation:
(i) ensuring that constitution building is inclusive and participatory so that every citizen feels part of the whole;
(ii) ensuring that any constitutional borrowing is contextualised to be relevant to domestic context, needs and aspirations and
(iii) ensuring that those entrusted to lead the technical process of constitution building remain true to ideals shared and cherished by all South Sudanese.
These aspects are the beacons which will guide nation building.
4 Concluding remarks
This article explores a very difficult topic and draws on the widespread aspirations and perceptions of the diverse people of South Sudan. The article shows how South Sudan can only overcome its myriad of challenges by going back to the foundational principles, norms and values on which the nation was founded: justice, liberty and prosperity. The country needs to build synergies to address the complex multiple challenges stemming from underdevelopment, poverty, insecurity and conflict. Although this article does not purport to be a blueprint for unlocking the deadlock the country is in, it hopes to provoke our collective memory about the founding principles that this nation was built on – a nation that has the potential to be a great one.
 See generally, M D’Agoôt ‘Why did Sudan Lose a small war in Southern Sudan?’ (2019) 30 Small Wars & Insurgencies
 See generally, M Delaney ‘John Garang and Sudanism: A peculiar and resilient nationalist ideology’ Forum Journal of History
 H Johnson South Sudan: The untold story from independence to civil war (2016) I.B. Tauris
 See Preamble to the Transitional Constitution of the Republic of South Sudan, 2011 (as amended).
 As above.
 See A An Na’im ‘The national question, secession and constitutionalism: The mediation of competing claims to self-determination in (eds) D Greenberg et al Constitutionalism and democracy: transitions in the contemporary world (1993) Oxford University Press
 The United Nations estimates 7.5 million people in need. See UNOCHA ‘Humanitarian response plan for South Sudan’ (2020) 4 <https://www.humanitarianresponse.info/sites/www.humanitarianresponse.info/files/documents/files/20191210_hrp_2020_south_sudan_final.pdf > (accessed 1 July 2021)
 African Union ‘Master roadmap of practical steps to silence the guns in Africa by year 2020’ (2016) 27 <https://au.int/sites/default/files/documents/38304-doc-1_au_roadmap_silencing_guns_2020_pdf_en.pdf> (accessed 1 July 2021).
 See J Akech ‘Rethinking transitional justice in South Sudan: Critical perspectives on justice and reconciliation’ (2020) International Journal of Transitional Justice
 Human Rights Watch ‘South Sudan needs to address cycles of intercommunal Killings: Address underlying grievances, protect civilians, ensure rule of law’ (2020) <https://www.hrw.org/news/2020/03/20/south-sudan-needs-address-cycles-intercommunal-killings> (accessed 1 July 2021).
 Akech (n 8 above) 1.
 L Deng The power of creative reasoning: The ideas and vision of John Garang (2013)160 Iuniverse, Inc, Bloomington
 A Ghani & C Lockhart Fixing failed states: A framework for rebuilding a fractured world (2008) Oxford University Press.
 Preamble to the Constitution.
 Transitional Constitution (n 4 above) art. 35(2).
 As above, art. 37(1).
 This is part of my doctoral thesis on ‘foreign influence and the legitimacy of constitution building in South Sudan, University of Pretoria, Republic of South Africa.
About the Author:
Joseph Geng Akech is a South Sudanese human rights lawyer and doctoral researcher in constitution building. He is an alumnus of the LLM in Human Rights and Democratisation at the Centre for Human Rights, University of Pretoria.
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