June 27, 2011
It is interesting to read constitutions of other nations and see how they have managed to strike a balance
of powers as well as inspire their nations, not only through the crafting of the most important documents of their existence, but also in composing a document that is living and breathing.
The Americans for instance, have opted to give “the people” freedom of “life, liberty and pursuit of happiness.” From its very concept, these words mean or have an evolutionary connotation to it.
The American Constitution did not only address the state’s formation (social contract), but also peered into the future of what the United State of America may want to look like. It is this aspirational attribute that makes the United States and its citizens unique. But also, people from around the world come to the
United States and partake in the ‘American Dream,’ because of the inspiration and opportunity it represents to all.
The Articles of the Constitution of the United States, balanced the rights of states within the union and the federal powers to maintain territorial integrity and national security, as well as clear divisions of powers within the federal institutions. The American constitution created ideal instruments of checks and balances
amongst the three branches of government. It created an atmosphere of mutual understanding between the government and the people, through the social contract, in return for collective benefits of provision of services and protection from the state of nature, where life is brutish and short.
‘The American Dream’ is still alive because it was aspirational and not operational or reactionary. The
futuristic aspects of the American constitution allowed for each an every American to dream. It was Aspirational because it inspired people to think of what they could be and not who they are. Great Americans who wanted their country to break with the past opted on accepting the challenge of parting ways with monarchy and establishing a new Republic, pure and simple.
The American Founding Fathers would have written a totally different constitution if they were
thinking of the pressing issues of the time. Issues such as the threats of retaliation by the United Kingdom over the revolt in Boston ( of the Tea Party), which led to the invocation of the movement for independence or the threats from the Loyalists who after losing, decided to make Canada their home or the debate
on the system of governance (Central vs. Con/Federal).
Instead the Founding Fathers of American Constitution were most concerned with what the constitution
provides Americans in the future or the balance of power and the rights of citizens. It is the aspiration or the vision that led the Americans to reach for the moon and not their tribulations. They did it under a true sense of the word, with institutions that guaranteed the rights of citizens and balanced the power
equally amongst its organs of government.
This brings us to the current debate around the Draft Transitional Constitution and the future constitution of the Republic of South Sudan. As a nation emerging from over two decades of Civil War and have been aspiring to form our own nation, after the euphoria of the successful referendum, it was of high importance for framers of the Draft Transitional Constitution to think differently about the tone and substance in formulating the current document.
The current Draft Transitional Constitution should have reflected the aspirational expectations of the people
of South Sudan, instead of being reactionary, hence catering to the demands of the current situation alone. Even though this document is not the final constitution that determines the future of our nation, setting the right balance and tone is very important. The threats to our territorial integrity, national security, and freedom of association, thoughts and expression cannot be guaranteed by having highly centralized
system of power (or as many may see it as highly concentrated and personalized system of power without due recourse for taming its potential misuse), which can only be guaranteed under the supreme authority vested in the constitution—law and institutions of governance.
The Draft Transitional Constitution and its process must reflect where we want to be as a people and
not where we are now. It must reflect our vision and not our past and present alone. If it focuses on our present and the past, where will our future be? The reason that many fought and died was not because of our past but of the future, represented in the system of government that we chose and the sacredness of its
If we so desire to think of the future, where will our all encompassing power rest? Will it be rested in
unaccountable executive or a political system that wants to alienate its people from being the authors of their own fates? These questions are important to ponder, because we only have one future as a people (which is democratic, viable, institutional state that is indivisible) and we must work to protect it by having a system that we are the sole authors of its boundaries.
Most, if not all of the democratic nations that exist today have passed through the same experiences that we have gone through so far but have opted to set in place a system that is reflective of their shared interest to live in peace, harmony and belonging to one nation, indivisible, respectful of its laws and rights of its citizens, regardless of race, gender, religion, ethnicity, ability or disability. So, what should we aspire for as people of South Sudan?