Radio Miraya
2651: Democracy in Action: The constitution making process in South Sudan
(dramatic music) - Hello and welcome to Democracy in Action with me, Sanny, Martin, and I am happy to welcome you back to the Democracy in Action program, a new time slot. Every Saturday from nine up to 10 a.m. And this is your program for everything you need to do with governance and functioning in the state. And today we are going to be discussing the constitutional making process and the participation of the citizens in this process. That's what we are going to be looking at right here. And the South Sudan permanent constitution making process must present the RRCS, that is the revitalized peace agreement, lifespan, value, procedural choices and mitigate ethnic tension, safeguard against elite capture and despair, perception of outside the imposed process. So where are we right now with the process? As we head towards election, come December, this year. Joining me to discuss all these are my two guests, Dr. Richard K. Mullam, who is a legal expert and a member of the National Constitution Amendment Committee and also vulnerable member of parliament representing the entire monetary. And we also have Marta Yalam-Katim, who is the Associate Political Affairs Officer with the United Nations Mission in South Sudan. These are the two guests we are going to be looking at. The issue of the constitution is very, very important. It affects you and me as citizens of this country. And we would like your participation later on where you can call on 091, 2069 or 091, 2069, 50. Those are all our lines you can call and be part of our discussion in the next 50 minutes. Let me take this chance to welcome my two guests right here, Dr. Richard K. Mullam. You are most welcome to the right. It has been a very long time. - Thank you very much. Indeed, it has been long. - Yes. Thank you so much vulnerable for coming and we also have Marta. You are most welcome to the right. - Thank you, Sunny. I'm happy to be here. - Okay. And like I said, everybody knows now that the process of making the constitution is in the hand of the National Constitutional Review Commission. And today we are talking about the NCC. That is the National Constitution Amendment Committee. We would like to find out from you, Honorable Richard K. Mullam, differences between the two for us because sometimes it confuses people. What is the difference between the National Constitution Amendment Committee and the National Constitutional Review Commission and how do they two complement each other? - Thank you very much. The National Constitutional Amendment Committee was established by the RRCS. And this committee's function, the first function was to incorporate the agreement into the Constitution, the Constitution of 2011. And by so doing, it is to the terms of the agreement which are not in the Constitution of 2011 or which are contrary to the provisions of the Constitution of 2011 are to be amended and the agreement is to be incorporated into that Constitution. And now it reads 2011 Constitution as amended. That means the parts of the agreement which were either contrary or not part of the Constitution 2011 have now been incorporated. It is now one single document. It is a comprehensive document so as not to entertain any contradictions between the agreement and the Constitution of 2011. It is a harmonized document. That is the function of the Department of the Constitutional Amendment Committee. Whereas the Constitutional Review Commission is the body that has now been established to write a new Constitution. They call permanent constitution for the Republicans also done. The role of this commission is to write totally a new document. It can incorporate part of the old one. It may even leave out the old Constitution and make a new document in accordance with the views of the people of South Sudan. It has to be owned by the South Sudanese and it's a new document. So these two different bodies to do different things. Now the NCAC, which was the new corporate agreement to Constitution, is coming to its ending. It's Monday, today. Today, the mandate of NCAC is ending. It will no longer exist. It will no longer exist. But the National Constitutional Review Commission has just been established. It's taking over a new function of a new Constitution as opposed to the old Constitution. So how do the two complement each other? The one ending today, the NCAC. How have we been complementing the work? That's now going to be taken over by the NCAC. It's difficult to complement one another because the old Constitution of 2011 was dealing with a decentralized system of governance. And even if it was amended during the transitional period, it remained basically that kind of Constitution, decentralized government. Now the new Constitution, which is referred to as the permanent Constitution, is going to be based on a federal system of governance. And the federal system of governance is also different from the decentralized system. It will be difficult to have the two bodies working together because this other one is disappearing and a new one has been born. - Okay. Yes. Thank you so much honorable. - Thank you, Senator Kamala, let's find out from MATA. You know, these are very simple questions, but sometimes it makes it difficult for people to understand when we talk about Constitution, what does it mean? What is the Constitution? - Thank you, Sally. Sunny, sorry. I just want to give a simple definition of a Constitution. Basically, it is the fundamental law upon which all other laws of a country are based and conformed to. The Constitution can be written or be and written as in the case of the UK. And it sets out basic definition of the character of the country and the structure of the government of that country. Constitution is usually harder to change than ordinary laws and is based on widespread public legitimacy. - Okay. And then without speaking for members of the NCRC, honorable Kamala, from the legal background, I know you are well versed about these issues. What are some of the principles that governs a constitutional making process? - One is that the constitutional making process must be attached to take to three stages. The drafting stage, which is the first stage, the consultation stage, which goes around to the people and the adoption stage, which goes to the parliament. Now, the drafting stage involves setting up subcommittees. There is going to be CDC, constitutional drafting committee. That is a technical body made of experts, many lawyers and economists. They will be the ones to gather the views of the people and draft them into a legal document. That is the constitutional, the drafting stage. Now, when it comes to the consultation stage, there will be the National Constitutional Conference. The National Constitutional Conference will bring together delegates from all over the country to debate the draft document. - Will these be citizens or these government officials? - These are citizens. They will be nominated by the various interest groups and as well as the political parties, representing different parts of the country. They are the ones that will now approve the draft constitution into an approved constitution. Now, from there, it goes to the final stage, which is the first stage of adoption. Adoption in our agreement will be done by the National Assembly, which will be reconstituted into a constituent assembly. The constituent assembly uses the power of the people to approve that this document is legitimate on behalf of the people. So, when the constitution follows these three stages to the end, then it will be considered that the constitution has been promulgated by the people of such that. - And talking about delegates coming from all over the country and sometimes being selected by the members of the political parties, civil society, women group, the youth and other stakeholders. How do you ensure that the constitution-making process is a people's driven exercise has stipulated in the agreement? - Now, there is a body, a preparatory body, a preparatory body of 29 people under the auspices of Ministry of Justice. Now, this 29 will examine, will look at the qualifications and the characteristics of the representation of the people of South Sudan, turning into account inclusivity. Now, the criteria that will be used will be adopted or drafted by the NCRC National Completion Review Commission. The National Completion Review Commission is the overall body of all other subcommittees, like the preparatory committee, the drafting committee, and also the NCC, the Consitional Conference. So, all available opportunities will be made into some regulations and rules so that everybody is seen to be involved in this Consitional Making Process. - Yes, before we hear from Marta about the unmissed support to this process, which is very, very important. Honorable, still with you. According to the agreement, we are told the process should have taken 24 months, right? And at the moment now, I think we are behind the time schedule. What is the suitable time frame for the constitution-making process has we are now beating, or we are behind the schedule? And at what stage does the public get involved in this exercise and how? Yes, Honorable Kamala. - Yes, it is true that the time table for the drafting of the Constitution has been over the late. It was to start 12 months into the agreement. But the agreement has been extended several times. And yet the constitution-making body was not established. Recently, the Consitional Commission has been established. And it will not try to work out a new time table as to how it can fit within the remaining period. That far, I don't know. I'm not a member of the National Commission, and I don't know how it will be handled with the stakeholders of the peace agreement. - From the illegal point of view, at what time do you think the citizens can get involved in the process? - Well, the National Consitional Review Commission is supposed to prepare a timetable for civic education as well as public consultation. And it is during the process of public consultations that the people will get involved, and their views will be considered. Either through oral communication or written submissions, and the Consitional Drafting Commission will have to arrange for that. - All right, yes, Matha has a political affairs working for the United Nations Mission, South Sudan, and the peace partner. How is the unmiss supporting the Constitution-making process? - The unmiss supporting the Constitution-making process by facilitating their look on the process. And I could give this session as one of the examples. And before this last month, there was a meeting that unmiss also facilitated for the NCRC to allow them to review their documents. So at this point in time, unmiss focus is to just facilitate the discussions around the permanent constitution-making process and allow for citizens to have the discussion broadly. In terms of the technical support, at this point, it is not clear what supports unmiss or to give to the government or the commission itself. And whatever support is needed at this point would have to be stated by the government. - OK, at the moment now, we are still waiting for the government to come up with what kind of support they need from unmiss. - Exactly. - If you have just done this right now, you're listening to democracy in action coming to your life from Redeemerai with me, Sanyamat in. And I have two guests with me here in the studio. And we are discussing the constitution-making process that will get your participation. You have to be involved. And you have heard that there will be a conference that will be held here in Yuba, where delegates will be coming from all over the country. And they will be participating in that process. And Honorable Dr. Richard K. Mullam is a legal expert and a member of the National Constitution Amendment Committee, whose life comes to an end today, according to him. And we also have Marta Yalam, the team who is Associate Political Affairs Officer with the United Nations Mission in South Sudan. And our line should be open to you shortly, while you can call on 092-9686-297-091206-2950. Or you can send us your comment or your question to our SMS number 091-2177-1411. Those are all our lines. We can reach us here and put your question forward to my two guests right here. Honorable Dr. Richard K. Mullam, some analyst says a haste process coupled with personal rivalry can easily make the process vulnerable or prone to elite sculpture, thereby limiting genome public participation and causing some kind of ethnic tension and producing unworkable constitution. What is your take on that, about the rush process? Actually, when the revitalized agreement was made, it was considered that the 24-month period would be an adequate period to consult everybody without any haste or rush. But now, when the timetable started to be ignored and delayed, it is now looking as if people are in a rush. Definitely, if the 25-month period is not taken seriously, then it will be a rush. But if it is taken seriously, that period is considered adequate enough to make public consultations and get everybody's view included in the new constitution. As to whether a rush constitution will create hit rate and rivalry and so forth, one can anticipate such thing to happen because things done in a rush are not done properly. And that sometimes ignore the normal rules of behavior. And I will not comment much on that, depending on how it will happen. OK. And let me just read for you an article that was written by Mading Gom, Mading, title, self-guarding, South Sudan, permanent constitution-making process, a case of redesign. He says, historically, constitutional-making process has been characterized by elitism. And then it has also given limited public participation. And he cited the example of the 1956 independent constitution suffers both from the elites and the limited participation in the making of the constitution. And he goes on to cite some example of the 1973 permanent constitution was written to implement a 1972 Addis Ababa peace agreement with the South in a rebels by then. And this always shift a focus for political settlement between those who are involved in any conflict. What lesson do you think are withdrawn from the past constitution-making process right from 1956 or 1955, as you may wish, up to date, as we are heading towards the permanent constitution of South Sudan? I would tend to agree with the Mading Gom that the previous constitution since '56 and '73, they have really been done by elites and with the limited participation. We witness all those, and that is why they were not properly done. And the agreement, I think, had a hand-sight and decided that at least 24 months periods should be prescribed in order to circumvent those kinds of challenges. And if this 24 months period is not adhered to, we may repeat the process of the past. OK. And let's find out from Mata, you have heard from Hana Raboldat, the terms of the NCC comes to an end today. And you have been working closely with them. If somebody has come, how many laws were reviewed during this time you are supporting them? So, up to the time I was with NCC, the committee had reviewed about 17 laws. Some of them had already been passed by parliament. Some were still pending at the Minister of Justice, and some of them were still with the Council of Ministers. And as of today, I do not have the exact number of laws that have been reviewed so far, but it should reach about 20, but that's subjective verification. OK. And then, let's, Hana Raboldat came along, this discussion I'm sure you have heard about it. Some people are saying that this constitutional making process should be left out to an elected government. What is your take on that? That was not the basis of the agreement. But I'm sure you have heard it. Yes, I have heard it. But the agreement was based on the fact that the new government is to be elected based on the new constitution. Without a new constitution, there should have been no elected government. Now, if a government is elected before the new constitution comes out, which constitution shall we use? Are we going to use the old constitution of 2011, then that will be contrary to the agreement. OK. And matter, what more can we expect from the enemies in terms of supporting the constitution making process, because you are a partner with them? Yes. Of course, they will be continued support towards facilitating the dialogue on the constitution making process. And I cannot predict what other support will be rendered in the future. But that is subject to discussion between the commission and unmissed. And we wait to see that. Let's go back to Hana Rabold before our lines are open. Now, the issue of civic education, using that is really should be the basis for people to understand, because I believe up to now, deep down there in our role set up, people really don't understand what is even a constitution, how should, at what stage should they be involved. Do you think the commission should roll out massive civic education to educate the people about the whole process or there's no time? I think there must be some kind of civic education, although not everybody will be included. But at least the samples of different categories of the society will be consulted. Some will be able to understand and as might not. So, civic education is very important, how extensive it goes, I cannot tell. But civic education should start before the constitution making, during the constitution making. And even after the constitution making, but take into account the element of public consultation, public consultation will supplement the civic education so as to make the constitution better and give opportunity for greater participation of everybody, or at least a large majority of the population. Okay, I know you are not a member of the NCRC, why are we right now from what we are hearing with the whole process? I really don't know how far the NCRC has gone, but I believe they are still preparing the code of conduct, and they are still preparing to recruit members to the various subcommittees that they will be considering that they will be supervising in the process of constitutional making. Right, 0912069 or 091206950, those are all our lands, you can call and be part of our discussion right here with me, Sani Martin. [Music] Hello? Hello? Yes, hello. Good morning to your name and where are you calling from? Yes, this is Magaay Galwag from United States. Okay, Galwag from up and I, go ahead with your question. Yes, Magaay, Magaay, Magaay. Yes, what is topic today is, I cannot know. Okay, you listen to the radio and then you will call back later. We have a question coming in here from a Tem Andrea from Kajok who are upstate and he is asking how does the government of South Sudan manage to take the country towards the general election schedule take place in December without any permanent constitution? That will guide the people on how to elect their nearly does and the question is asking, can election be conducted without any form of constitution? That's going to 100% of Kamala has a legal expert. Well, a constitution is important because it establishes the government and the system of governance and the institutions for governance. If you have to go for elections then you need to have the system of government in place, the institutions that will run the government also in place. Without institutions and established government, it is difficult to conduct elections. Okay, and there is another question here asking about, do you think the issue of women participation has to say that number of women in this country surpasses that of men? To what extent do you think women should be involved so that their issues should be included in the constitution making process? Well, that's from Jane in Monique. Yeah, in fact, the proportion of the number of women compared to men are more or less equal and so they are a very vital part of the society and their consultation and their involvement is very important indeed. Okay. 091, 206, 2950. Hello, Edinburgh. Hello. Yes, good morning. Good morning to your name. Yeah, Peter, Peter from Northern Baghdad. Okay, Peter from Northern Baghdad. Yes, thank you. I thank you for the topic. Okay, my question is very simple because for me, I am confused here. For last today, so I'm hearing the news that we work on, then that we will put our election for 24 months, but we are not having a concentration in place. Like this region process, a center is not done and we are talking for election. My question is, now let our people in the city be clear fire. Are we ready for election? Or we are putting it for 24 months as I waited for the last two days news? Okay. Thank you so much, Peter. And more or less, like the question asked by Atem Andrea, is the country ready for election without a constitution? That's the question he's asking. And also, let me put this together to the Honorable Richard. The S. Pelham in opposition says a period of 24 months needed to complete planning tasks that are critical for the country to have a free, fair, and credible election in a personal paper that was signed by the first vice president Dr. Eric Makar. The S. Pelham I/O says the two years timeline is necessary for the drafting of the permanent constitution and other important tasks. What is your take together with the question from Peter? Definitely. I'm sure you have seen the document. I haven't seen the document. But then as I was saying, the basis of the agreement, it was considered that 24 months was the adequate period required. But as things transpired, this expectation has not been met. And people are now very anxious, some say, it's better to have bad election than not to have election at all. It means they are fed up of the status quo. And yet it is important to have the 24 months. This is a very serious situation of contradiction. And I don't know. As a legal expert, I cannot solve it. It can dissolve politically. So what is your recommendation here? And this is kind of a set up way. It causes a lot of insight among the population of South Sudan. Somebody is telling something this side, another one says this. And there is no kind of fight voice on what to do. Well, I don't know what to say here because the two views are all very important. People say we need to have a change. Some people say no, we need to have a proper change through going the rightful way. So it's very difficult. Maybe the situation will resolve itself by itself. Okay. Let's wait and see. 091206950, or you can call us on 0929686297 and ask your question to my two guests right here. Or you can choose to also send us your question to our SMS number 091-2177141. Those are all our lines. Can I reach us here and ask your question? Hello. Morning to your name. Yes, I'm Cristo Hilary from Bara. Cristo from Bara. My question goes. Yes, Cristo from Bara Western Equatorial. My question goes to Iduat. And I'm glad to listen all to this program of yours. Now, my question is deserve only answer. No. If I'm a citizen of South Sudan and my country doesn't have permanent constitution in place, have I been ready to vote for my president? Thank you. Okay. Cristo from Zara County of Western Equatorial State. There is another question here. We can combine them together and say, what is the, I think it was already answered, the support of unmissed to this process, it was answered a little bit. And maybe I will also give, maybe you missed the point. Math, I will explain more about, he wanted to know, they want to know what kind of support is animists providing to ensure that this process of the constitution-making process succeed without taking us back to square one. Given the financial difficulties the country is going through right now, that's from Dang here. Let's begin with the Honolulu, the question of Chris from Zara that if the constitution is not ready in place, has it's stipulated in the agreement, what happens if people go for election? As a citizen, is having the right to say, okay, would that occur? The situation, I cannot go any worse to my time to vote. Well, the election, as I said earlier on, is supposed to be based on the new permanent constitution. If the new permanent constitution is not in place, then my, my, my, my other question is, this time I'm asking, which document shall we use for the election that is supposed to be done? Shall we go back to use the 2011 constitution as amended? And if so, is that in, in harmony with the agreement, are we with the agreement or we are not with the agreement? So what are the answers to your questions? The answers is that if we are with the agreement, then we need to have a permanent constitution. If we are not in agreement with the agreement, then we do whatever we can do. Okay. Yes, Martin, maybe Dang missed it. He's asking with the economic challenges and the limited resources to fund some of these because, like for example, the constitution making process and other mechanisms, what kind of support is animus rendering to ensure that this process succeed? Maybe he missed your explanation earlier. Thank you, Sunny. As I mentioned earlier, animus is supporting the, the facilitation of dialogue on the permanent constitution making process. And also besides that, the, the agreement also stipulates that animus will support the process at the request of the government. And that decision will be made at the high level. And at this point, it's not very clear yet what support animus will give, but as a partner to this piece process, of course, it's committed to ensuring that this process is implemented and executed as stipulated in the agreement. Right. And let's go back to Dr. Richard K. Mola. From your experience idea, in kind of examples, you can cite global where the constitution making process has been first truck and there was some success that were recorded. I don't have any experience. Maybe my experience is limited. If it has happened elsewhere, I don't know. So in what lesson do you think South Sudan can land from other countries that has also gone through this kind of crisis wars and they much to have a very strong system in terms of making their own constitution. We have Liberia, we have Rwanda here, we have even other countries like Congo and all this? Well, when, when government is established after crisis, it's normally established on the basis of an interim constitution or a transitional constitution. And we have had both. We had interim constitution 2005 and 2011. Now we have transition constitution from 2011 up to today. These are all transition for government to manage, to establish, to prepare itself, to have a proper and a better constitution, including the participation of everybody. We have done this, but yet we are unable to get out of transitions. We continue to be in transitions and transitions. So maybe we need another transition in order for the government to prepare itself to have a permanent constitution which involves everybody. Maybe transition, another transition constitution is inevitable now. Okay, 091 to 62950 or 092 96 86297. Those are all our lines we can call we are only left with three minutes to the end of our discussion here. I have two guests with me in the studio. Honorable Dr. Richard K. Mullah, who is a member of Parliament representing Monterey and also he is a member of the National Constitution Amendment Committee, whose term comes to an end today according to him. And also I have Martha Yalam-Katim, associate political affairs officer with the United Nations Mission in South Sudan. And the mission is supporting the constitution-making process. And you can call us and talk to us here. We are discussing on democracy in action the constitution-making process and the participation of the citizens in that process. That's what we are discussing right here with me. Sani Martin. Yes, 091 to 62950 is the number for you to call. We have defined the question here where our SMS before we conclude our discussion. He says what will be your recommendation right now to the National Constitution Review Commission that can enable the process to go first and have citizens trust them as a legal expert. That's to Dr. Richard K. Mullah, it's coming from Jackson in topping here in Cuba. Your recommendation as to what you think they should do now if you have to write a position paper on that. Well, a constitution without involving many people and the citizens can easily be drafted by experts. It will not take long for an expert to draft a constitution. It can be two weeks, three weeks or even three months. But that will mean that people have not been seriously involved and it cannot be considered as people driven constitution and it cannot be even owned by the people. It will be some kind of ad hoc document. So his question is what would you recommend now to them? Because they have not had anything from them like Enno Roadmap, No schedule, no timeline. What is your recommendation to them now? As somebody who has worked with NCHC who have some kind of experience. In fact, we really don't have a shortcut. I would say no shortcut. Right. Finally, what is your concluding remark as we finish our discussion here. Let's begin with you Honorable Richard Kamala. As you conclude, what is your message to the people who are kind of frustrated? There's a lot of anxiety. Well, we have no option. Really, we have no option. We must exist and we must coexist and therefore we need to tolerate one another. But then the government itself, the executive, must take the issue of consistency, making very seriously. The ball is really in the accord. Why do they delay? Why don't they have funds? Why don't they have time to give to the people to exercise their rights? This is their responsibility and it's just coming as well. What more can the people of South Sudan expect from our admins in terms of supporting the peace process and more special. Some of these key traditions like the National Constitution and Review Commission and the making of the constitution process. Well, the people can expect continued support in terms of facilitation of public participation in the process and also ensuring that people are able to engage with the process adequately. And this, of course, will be done through the commission and whatever else support the commission or request from admins will be provided. But, Sunny, before I give back this opportunity to you, allow me to also emphasize on the constitution-making process that there is really no one-size-fits-it or approach and that before elections or any other process is reached by the government, there should be careful consideration on the security, transitional arrangements, public participation, and the progress of the constitution-making process itself and ensuring that the objectives of making the constitution achieved by the time the transition is done by the government. Okay. Thank you so much for my two guests here, Dr. Richard K. Mola, a member of Parliament and Martha Yalam-Katim, Associate Political Affairs Officer with admins. Thank you so much for your time this morning. Thank you very much for coming. We hope to talk to you some other time. Thank you. Thank you. And with that, we have come to the end of our democracy in action. And the news is coming next. And after the news, we shall be crossing a life to Dr. Joan Gerang-Mazellium for the graduation ceremony via more than 800 cadets from the police internal security and civil defense are graduating. And the president is live at the venue. We shall be finding out more from our reporter who is there. My name is Andy Martin. The news is coming next. Thank you so much for listening.