South Sudanese fought a brutal war for over half a century for a homeland wherein they could live in freedom and in dignity. This generational dream became a reality on 9th July 2011 when South Sudan became a Republic. Since becoming an independent country, however, South Sudanese are yet to exercise the right to elect a government that will steer them to their dreamland. Tragically, overnight, the dream of a free, peaceful and prosperous homeland has turned into a nightmare.
Seven years into independence, South Sudan has become a human abattoir and the Government the main slaughter man in charge of the slaughterhouse. This is mainly as a result of the war that has engulfed the country since 2013, killing hundreds of thousands and displacing millions internally and externally, leaving more than half of the population of the country facing a serious likelihood of famine and the coffers of the country looted out completely. South Sudan is now a serious contender for the global capital of rape. A country where human rights violations and committing international crimes have become a national sport.
For all these notorious records, the Government of South Sudan is now under an arms embargo and senior government ministers, the petroleum and mining ministries, the entire oil section and some military officials are all under sanctions.
With such dubious records, the question to ask is why is such a government still in business? The main reason is that rather than going to the citizens to get a mandate to govern, the Government of South Sudan prefers to extend its mandate to govern through constitutional amendments even though there is no specific constitutional provision, other than the generic amendment clause authorizing such extensions. The government has extended its mandate in this manner once. Now the Bill to extend the mandate for the second time is waiting for the signature of the President. This is not how the crafters of the Transitional Constitution of South Sudan envisaged legitimization of government.
In the mind of the drafters of the Transitional Constitution of South Sudan, a government is legitimate if that government is established in accordance with the will of the people. The Constitution is the material manifestation of that will and this will is exercisable through democratic elections. Therefore, any government that takes or retains power through any means other than through democratic elections, is unconstitutional and as such, automatically, illegitimate (arts. 2, 3, 4 and 50 of the TCSS, 2011).
This is understandable because the Constitution is the contractual framework through which power, which inherently belongs to the people, is delegated to a government to be exercised on behalf of and for the benefit of the people. The Transitional Constitution of South Sudan takes this principle of social contract so seriously that it provides that when the delegatee usurps the power of the delegator, the people as the organic source of power, are duty bound to resist, with every means possible, such usurpation of power.
In fact, it does not make a difference whether a government purports to use the Constitution to legitimatize such unconstitutional usurpation. This is why perhaps, the African Union defines unconstitutional change of government, in article 28E of the Statute of the African Court of Justice and Human Rights, to include; any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government...
One of the rationale for considering an extension of the existence of a government through constitutional amendments as being unconstitutional is the supremacy of the will of the people over the representative institutions established in accordance with that supreme will. In South Sudan, it is the Constitution and not the Parliament that is supreme. This means that the original constituent powers belongs to the people whose will provides the authoritative foundation for the Constitution; and it is only the derivative constituent powers that are exercised by entities created by the Constitution such as the Parliament, the Judiciary and the Executive.
Thus, while the original constituent power knows no legal constraints, the derivative constituent power can only be exercised under the conditions determined by the original constituent power. Therefore, institutions are created by and owe their authority and existence to the Constitution. As a material manifestation of the constituent power, all institutions must act in accordance with, and within the limits of the Constitution. Consequently, the obligations imposed by the Constitution must be fulfilled only in accordance with the form and manner laid down by the Constitution – this includes changes in government through elections rather than constitutional amendments.
While the remedy to deal with illegitimate government as provided by the Transitional Constitution is to resist it, in international law, the available remedy is to de-recognize such a government.
International recognition of a government could be de jure or de facto. A government is recognized de jure when such a government exists in accordance with the constitution – i.e. firmly established in accordance with the will of the nation or said to be based on popular consent. Recognition is de facto when a government is unconstitutional but still effectively exercises power over the entire territory of the State, is independent, and has the necessary degree of cohesion. Some will add if such a government respects and by abides by international law – human rights and humanitarian laws.
It could be argued, therefore, that international recognition of a government is a conditional sovereign act. It is conditioned on a claim by the recognized government that it is a legitimate, valid and effective representative of the State or territory in question in the field of international law. If these bases of recognition disappear, then other States are entitled and bound to take cognizance of that fact. Since, the representative capacity of a government should be dependent on its legitimate claim to the consent of the governed; a government which has ceased to be effective, devoid of popular consent and is continuing to commit international criminal acts against their own people has no claim to the sovereign will of the people and thus, no claim to reciprocal recognition.
The foregoing discussion is extremely relevant to South Sudan’s Transitional Government of National Unity (TGoNU). The TGoNU was established extra constitutionis because it was established by the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS) with the specific mandate of implementing the ARCSS. So, the very existence of TGoNU was unconstitutional. However, even though the TGoNU was unconstitutional, it was legitimate by virtue of its recognition by IGAD, the AU, and the UN through the ARCSS. Thus, TGoNU could be seen as a type of an internationally created administration for South Sudan. The mandate granted to the TGoNU to government expires in August 2018.
There is a general consensus that ARCSS collapsed in 2016 that is why there are ongoing efforts to revitalize it. Until these efforts succeed, there is no ARCSS capable of sustaining TGoNU nor capable of being incorporated into the Constitution. In the absence of a constitutional mandate or a valid mandate from the ARCSS, TGoNU has no constitutional or legal basis at national, regional and international levels, for de jure recognition. In addition, TGoNU’s control does not extend beyond Juba and its immediate environment. So, there is no de facto basis for the recognition of TGoNU, either.
This conclusion has serious implications for relations between other states and South Sudan. For instance, commercial transactions with the current government could fall within the ambit of the odious debt principle while ordinary contractual relations could be vitiated on the basis of lack of capacity to contract.
The only source of the appearance of legitimacy of TGoNU is the continued diplomatic recognition by other governments and by inter-governmental bodies. One of the effects of sustaining an illegitimate government through state practice, including diplomatic relations with rogue regimes such as the one in Juba, is ironically that it weakens, further, the basis of the international system itself – a system built on equal and reciprocal powers of sovereign states, of state capacity and of a state’s claim to effective and legitimate representation. In addition, a weakening of the international system in this manner is a serious threat to international peace and security.
To correct this abnormality, international recognition should be withdrawn, individually, by the states that recognize the ‘Government’ of South Sudan.
Dr. Remember Miamingi is the Co-Convener of the South Sudan Human Rights Observatory. The views expressed in this piece are those of Dr. Miamingi. Dr. Miamingi can be reached through : firstname.lastname@example.org