Fifteen Eighty Four

On July 9, 2011, it was announced with great fanfare that South Sudan had become the world’s newest nation state. As new countries are wont to do, that very day President Salva Kiir promulgated a new Constitution, the Transitional Constitution of the Republic of South Sudan. With substantial input from international actors and academics, the constitution featured a wide array of human rights, provisions for an independent judiciary, and a federal structure of government that conformed to international norms. Indeed, international influence was so great that one observer called it an “Intermestic” Constitution, which reflected a balance between domestic and international considerations in the text.

Hopes were high at independence for peace and prosperity. The country’s two main ethnic groups, the Nuer and Dinka, were jointly represented in a unity government. The Sudan People’s Liberation Movement (SPLM) and its associated military wing, which had triumphed after four decades of armed struggle, promised a new era of democracy and development.

Alas, things went awry fairly quickly. Conflict with Sudan over disputed territories was immediate. In 2013, the SPLM split in two as Vice President Riek Machar led a breakaway faction; a civil war erupted. Machar was able to return to Juba in 2016, only to leave again in a new round of fighting. Some 400,000 people have been killed in this war, and millions more have been displaced. At this writing things are looking up, as the rivals have formed a coalition government. But its first decade as a new country has not been a good one.

The Constitution has not fared much better. One of the main constitutional disputes has been over the number of states. The Constitution clearly provides for ten states (Art. 162) but Kiir unilaterally increased the number to 32, without any clear constitutional authority to do so, in part as a means to increasing the lever of political patronage. (Indeed Art. 86(5) and 162(3) seem to deny this possibility explicitly). Returning to ten states was a key part of the current peace agreement.

Although the number of political appointees has multiplied, rights protections have gone nowhere in the newly independent South Sudan. The country has never had a national election. Kiir was supposed to serve a maximum of two five-year terms, but the parliament has extended his term. And a National Constitutional Review Commission, appointed by Kiir to produce a Permanent Constitution, has made no visible progress.

South Sudan illustrates a somewhat predictable failure, given the country’s poverty and violent history. But the problem it illustrates is a general one, common to other constitutional contexts: the inability for a written document to get off the ground in the first period after implementation. This is not only a problem of developing countries: the United States Constitution, which has endured for more than 230 years, could have easily died in 1800, when a contested presidential election almost led to a breakdown of institutions. Its federal government and national courts also remained relatively weak until the end of the nineteenth century. In the interim, it nearly died thanks to the collapse of sectional compromises over the indelible original sin of slavery. But the U.S. Constitution was one of the fortunate ones; many constitutions die in their first decade, and the average age of a constitution remains less than two decades. The question of how a constitution grows from being a piece of paper into a living institutional practice remains a puzzling and difficult one.

One reason that constitutions struggle with implementation is that, at their core, they embody a deep tension between existing power structures and demands for transformation. On the one hand, constitutions are often audacious blueprints for social and political change. They are crafted to inspire and motivate a new polity, and adopted at moments of high optimism in the possibility of change. On the other hand, getting a constitution up and running entails some accommodation of existing patterns of political power, institutional development, and socioeconomic arrangements. A constitution that fails entirely to accommodate has a questionable future.

Even in South Sudan, a brand new country catalyzed by powerful aspirations toward social and political transformation, there were strong countervailing demands for preserving past economic and social arrangements. The model of an Interim Constitution adopted in 2005 as part of peace negotiations was important. And the SPLM certainly did not want a constitution to dilute its power. At the same time, members of the general public hungered for peace, development and democracy, and so the constitutional text had to speak to those aspirations. This tension between preservation and transformation is universal, and constitutions must balance between the two to both survive and to do so in an effective way. Too much “preservation” will render a constitutional project conservative; too much “transformation” might render it a mere parchment barrier.

How can this balance be achieved? First of all, drafting processes matter. Drafters often struggle to reach agreement, and are tempted to leave things vague. A specific timetable of transitional provisions, providing for deadlines and defaults, can help incentivize leaders to act during the first period. Some recent constitutions, such as that of Kenya, have even included a Commission for the Implementation of the Constitution, which is charged with monitoring the steps to be taken to implement the text. This body issued reports and findings, and no doubt helped to publicize bumps in the road.

Second of all, efforts to build trust are critical. Even if the text of a constitution is adopted with widespread support, what we call deficits of trust can easily undermine implementation. Efforts to build trust among rival parties and groups are complicated, and not amenable to general, simple solutions. But we do have some historical examples. One famous example concerns the Spanish transition to democracy, embodied in the Constitution of 1978. In the negotiations that led to the so-called Moncloa pact, the left accepted the monarchy, while the right agreed to allow the democratization of key political and social institutions. Some years later, in 1982, the Socialist Party won elections, but retained the monarchy during its long rule through 1996. In other words, Spain’s left and right wings grew to trust each other in the course of dealing with each other over time.

Trust, political will and careful drafting: These are the keys to constitutional performance. We recognize that these may be easier to prescribe than to realize. But without them, constitutions are doomed to remain parchment barriers, if they survive at all.