Federalism in South Sudan—Options for Power Sharing in the Permanent Constitution

Abstract

The young nation of South Sudan is currently engaged in a review of its Transitional Constitution with the aim of finalizing a Permanent Constitution by 2015. One of the key issues the subject of negotiations is whether the Permanent Constitution should contain power-sharing features and if so, whether those features should be formal or informal. While it is widely accepted that the Permanent Constitution will contain federal elements, this article gives consideration to the way in which formal and informal power-sharing arrangements that are found in federations such as Nigeria, South Africa and Ethiopia, could be employed by South Sudan.

Keywords

Power sharing federation bicameral government of national unity second chamber

Introduction

South Sudan has entered into a new phase of its process of democratic transition. The process of drafting the “Permanent Constitution” to replace the Transitional Constitution is under way. Discussions and public awareness programs about constitutional options for the young democracy are taking place across the country and it is hoped that a constitutional model would be developed that generates wide public support and brings stability to this emerging democracy. The timescale to conclude the current process of popular consultation and constitutional review is 31 December 2014.

One of the key questions—perhaps the key question—in the constitutional review is what provisions should be made for power-sharing mechanisms in the Permanent Constitution?

It is widely accepted that the Permanent Constitution will have federal or decentralized characteristics, but the make-up of the central institutions and the way in which power is shared within those institutions is a vexed and unresolved issue. Public opinion has been strong in favor of constitutional arrangements whereby government is made to be inclusive; representative of the respective regions and states; and for minority parties to be represented in government—be it on a temporary or permanent basis (Cook and Moro, 2012).

As in many transitions from some form of authoritarian rule to democratic rule—refer for example to debates in Kenya, South Africa, Ethiopia, Iraq, Myanmar, Nepal, Kosovo, Afghanistan—there are divergent schools of thought in South Sudan about the appropriateness of including in the Permanent Constitution formal power-sharing arrangements. The views expressed range from those who believe the Permanent Constitution should contain detailed provisions to guarantee power sharing in the executive and legislative institutions, to those who contend that power sharing should best come about as a result of spontaneous cooperation and informal coalitions between groups and political parties, rather than by way of constitutional prescription. These respective schools of thought point to selective case studies to justify their propositions.

There is, however, wide agreement that the Permanent Constitution should contain strong decentralized or federal characteristics(Mathiang, 2013). The use of the word “federal” in the Permanent Constitution is, however, divisive as a result of the concern that federalism may undermine national unity. This concern bears a resemblance to the “f-word” aversion that characterized the constitution drafting processes in India and South Africa.

The article provides an overview of some of the most important power-sharing arrangements that have been pursued in federations, for example power sharing through the composition of the national executive; and power sharing through the composition of a second house of parliament. Specific attention is paid to the institutional arrangements of relatively young federal democracies since it is from the experiences of emerging democracies that South Sudan stands to benefit most.

Federal elements in the Transitional Constitution of South Sudan Constitution

The Transitional Constitution establishes, in many respects, a federation. This is not to say that the way in which the Transitional Constitution is implemented or managed complies with the spirit of a federal constitution or that all the provisions of the Transitional Constitution are consistent with federal theory and/or practice. On the contrary. Many powers of, and decisions by, the national government, most notably the discretionary dismissal of state governors by the President (a101(r)) and the recent sacking of the entire national cabinet, remind of other highly centralized systems where the one who controls the centre, dominates the rest of the country and its institutions of government. The South Sudan experience under the Transitional Constitution is, however, in many respects not dissimilar to those of India, Mexico and South Africa where, regardless of the federal nature of the respective constitutions, the period immediately following the enactment of the first democratic constitution was characterized by centralization, national interference in state affairs; and one-party dominance.

Elazar’s description of federalism as a balance of “shared rule” and “self rule” (Elazar, 1987) ¹ is widely accepted in modern day federalism theory as an apt summary of the essential characteristics of federations (de Villiers, 2013). Federalism is, in theory as it is in practice, a many-faced phenomenon that finds appearance in many different forms, of which a “federation” is one.² As Elazar has observed—“ … the essence of federalism is not found in a particular set of institutions, but in the institutionalization of a particular kind of relationship among the participants in political life” (Elazar, 1979: 2).

A federation is a form of federalism that refers specifically to an institutional arrangement whereby according to the Constitution

neither the federal nor the constituent units are constitutionally subordinate to the other, i.e. each has sovereign powers derived from the constitution rather than from another level of government, each is empowered to directly deal with its citizens in the exercise of its legislative, executive, and taxing powers, and each is directly elected by its citizens. (Watts, 2008: 8)

The line that separates federations and decentralized unitary systems can often become blurred, if not in theory, then most certainly in practice. In essence in unitary systems the decentralized arrangements are contained in ordinary legislation enacted by the national parliament (eg the UK, France and Namibia), while in federations the constitution, which is entrenched and can only be amended by way of special majority and/or procedures, sets out the powers and functions of the national and state governments (eg India, Germany, South Africa, Malaysia, Brazil). The source of governmental powers in federations is therefore the national constitution, while in unitary systems the source of sub-governmental powers is legislation which is enacted by parliament which is supreme, and parliament may amend, by ordinary majority, any such legislation.

The Transitional Constitution of South Sudan exhibits various federal characteristics although the word “federation” or “federalism” is not mentioned in the Constitution.³ Those federal characteristics are not necessarily translated into practice since the country is governed from Juba, the capital city, in a centralized, unitary manner.⁴

The essential constitutional and institutional characteristics shared by federations as reflected in the Transitional Constitution are (Ricker, 1964; de Villiers, 2004; Kincaid and Tarr, 2005) as set out below.

In a federation a written, entrenched constitution sets out the basic rules according to which the federation operates. The federal constitution cannot be amended without compliance with special procedures and/or special majorities (Ostrom, 1995). The Transitional Constitution describes South Sudan as a “decentralised multiparty system” (Preamble) with the Constitution being the “supreme law of the land.” (a3(1)). This is an essential characteristic of a federation where the constitution is supreme and all government action can be tested for its validity against the constitution. The Transitional Constitution further provides that all governments derive their powers from the Constitution; (a3(2)); that all laws must comply with the Constitution; that the constitutions of the states must comply with the Transitional Constitution; and that all levels of government shall promote and protect the Transitional Constitution.(aa3(3), 4(4), 5)). The Transitional Constitution is entrenched and can only be amended by a two-thirds majority of all members of each house.(a11) The Council of States is solely competent to change the state names, capital towns and boundaries.(a59(g)).

In a federation the constitution sets out and guarantees the national and state government’s powers and functions—although in some of the more recent federal constitutions detailed provision is also made in the national constitution for the institution of local government, its powers and functions and matters related thereto (India aa 40 and 243; Nigeria Fourth Schedule; Brazil aa18, 23 and 29; Iraq aa 12 and 121; South Africa aa 40, 151–164). The Transitional Constitution of South Sudan obligates the national government to respect the powers and exercise of those powers by the state and local governments (a48(2). In similar vein to Chapter 3 of the Constitution of South Africa that deals with the importance of cooperative government, the Transitional Constitution recognizes the importance of intergovernmental relations between the respective levels of government (a49). The Transitional Constitution establishes three levels of government namely national, state and local governments (a47). The Transitional Constitution determines that the national government “shall” respect the powers devolved to the state and local governments (a48(2)(b). The Transitional Constitution sets out the powers of the national government (Schedule A); the powers of the states (Schedule B); the concurrent powers (Schedule C); and the residual powers (Schedule D). The establishment of local government is, as in many federations, the responsibility of the states (a163(5), although the institution of local government as a distinct level of government is recognized by the Transitional Constitution (a166).

In a federation the judiciary oversees, protects and enforces the constitution, the allocation of powers to the respective levels of government, and the legality of decision making. The judiciary in federations is the ultimate interpreter of the constitution and it determines how decisions and actions by any level of government are impacted upon by the provisions of the constitution. The judiciary, as guardian of the constitution, is therefore a key element of federations. The Sudan Transitional Constitution requires that all laws of local, state and the national governments must comply with the Constitution and that all levels of government shall promote democratic principles and political pluralism(a3(3). Although the Transitional Constitution does not define what is meant by “decentralization” and devolution,” those terms, when interpreted within the context of the Transitional Constitution, clearly refer to the constitutional allocation of powers; the respect that governments should show to one another; and the importance of effective intergovernmental relations to make the multi-tiered arrangement work effectively (a53(2). Refer for example to the provisions of a48 of the Transitional Constitution about the key principles to guide the devolution and exercise of powers.⁵ The Transitional Constitution obligates the national government to exercise its powers in accordance with the Constitution and to respect the powers of the state and local governments(a48(2). The Transitional Constitution provides that the Supreme Court is to adjudicate about the constitutionality of laws and to determine disputes arising from the Transitional Constitution(aa126(d–e).

In a federation the states are represented in the national legislature, often through a second house of parliament (Patterson and Mughan, 1999). The second house is the most common power-sharing institution of federations since this house provides the states an opportunity to become involved in the national legislative, budgetary and intergovernmental process. In rare cases provision is also made for local governments to be represented in the second house: refer for example to the South African National Council of the Provinces (a67); or for ethnic groups rather than states to form the second house, refer to Ethiopia’s House of the Federation (a61). The Transitional Constitution establishes a bicameral National Legislature. The National Legislature comprises the popularly-elected National Legislative Assembly and the Council of States which represents the states. The houses sit separately and together, depending on the nature of the functions they discharge (aa54(2)–(4), 55, 57). The members of the Council of States are elected by the respective state assemblies (a58). The details of the electoral system for the Council of States and the number of representatives per state is yet to be settled in a National Election Law (a58(1)(b)).

In a federation the constitution offers protection of the territorial and institutional integrity of the states. This means that the constitution protects the states against unilateral amendments of the constitution that may erode their power, or from undue interference by the national government. The territorial and institutional integrity of states generally means that the boundaries, powers, functions and/or governmental institutions of states cannot be removed, altered or interfered with without a constitutionally-prescribed process. The Transitional Constitution establishes 10 states (a162). Each state is entitled to draft its own constitution provided that the state constitution is consistent with the Transitional Constitution.⁶ Each state may also determine is own capital city and name. The boundaries of states may only be amended by two-thirds of all the members (not only those present and voting) of the Council of States (a162(3).

It appears from the above constitutional analysis that the Transitional Constitution of South Sudan firmly finds itself, at least as far as its institutional arrangements are concerned, within the family of federal-type constitutions.

Constitutional review process

The Transitional Constitution came into force on 9 July 2011. The Transitional Constitution was preceded by a series of agreements that facilitated the secession of South Sudan from Sudan (Johnson, 2011; Jok, 2012). After many years of bloody conflict and civil war the Comprehensive Peace Agreement (CPA) was signed on 9 January 2005. This was followed by the Interim National Constitution of the Republic of South Sudan 2005 and the Interim Constitution of Southern Sudan in 2005. The Transitional Constitution, which remains current, was adopted by the Southern Sudan Legislative Assembly on 7 July 2011 and signed into law by the President of South Sudan on 9 July 2011.

The Transitional Constitution remains in force until the adoption of the Permanent Constitution (a201(2). An elaborate constitutional review process is laid out in the Transitional Constitution for a new, Permanent Constitution to be negotiated and enacted (Deng, 2013). The constitutional review process comprises the following key elements (Part Sixteen):

The first phase is the appointment and establishment of the National Constitutional Review Commission (NCRC). This is a body intended to operate independently, albeit that the members are appointed by the President. The NCRC is responsible for laying the ground for the constitutional review process (a202). The NCRC has a tri-legged mandate, namely to conduct civic education on constitutional issues; to review the Transitional Constitution; and to develop a draft Permanent Constitution. The National Legislature extended the deadline of the NCRC to 31 December 2014 when it is required to submit a draft Permanent Constitution for purposes of the second phase of the constitutional review.

The second phase of the constitutional review process is the establishment of the National Constitutional Conference (NCC) (a203). The NCC will receive the draft Permanent Constitution as recommended by the NCRC and deliberate on the provisions. It must approve the draft Constitution with a simple majority. The NCC must vote on the draft Permanent Constitution no later than six months after it has received the proposal from the NCRC.

The third phase of the review process is when the draft Permanent Constitution is submitted to the National Legislature for consideration. The Legislature will receive the draft Constitution from the NCC and discuss the contents thereof. The Legislature must vote on the new Permanent Constitution no later than three months after the draft is tabled.

The fourth and final phase of the review process is when the draft Permanent Constitution is presented to the President for assent. The draft Constitution as approved by the National Legislature is presented to the President for signature.

There are several aspects of the constitutional review that remain to be clarified, for example:

Is the Transitional Constitution to be used as the basis for the review or should an entirely new Permanent Constitution be drafted?

Is popular consultation being used to educate or to obtain views and inputs for the Permanent Constitution?

The decision-making mechanisms of the National Constitutional Review Commission remain to be clarified (a203(3)(d).⁷

What discretions exist for the National Constitutional Conference, the National Legislature and/or the President to interfere or vary in substance those recommendations?⁸

How will the dominant powers of the President be curbed throughout the review process?

The process of constitutional review in South Sudan is, potentially, fraught with many uncertainties and the leadership of South Sudan may have to find answers to these and many other questions while the process is under way.

Options for power sharing in the Permanent Constitution

A challenging question on the agenda of stakeholders in the constitutional review process of South Sudan is whether, and how to provide for, facilitate or structure power-sharing arrangements in the Permanent Constitution.

Some of the key questions that require to be answered are:

should power-sharing arrangements be formal or informal;

if power-sharing arrangements are formal then should those arrangements be temporary or permanent; and

if power sharing is informal what rewards or encouragement could be built into the Permanent Constitution to facilitate power-sharing arrangements?

If, on the other hand, power sharing is formal how to prevent a stalemate if agreement cannot be reached between the coalition parties, or if power sharing is informal how does one provide adequate security for minority groupings to endorse the Permanent Constitution?

There are, in general, two main schools of thought in response to the question whether power sharing should be mandated by a constitution or left to informal agreements.

One school of thought contends that in emerging democracies with deeply divided societies, constitutional and other legal guarantees should be considered at all levels of government to enable participation of minorities in decision making, and in particular for minorities to be represented in the executive(Lijphart, 1977, 2007). This is often referred to as the consociational school and proponents emphasize that in heterogeneous societies individuals are inclined to vote in accordance with ethnic lines and, as a result, post-election guarantees for power sharing must be included in a constitution (O’Leary, 2005; McGarry, 2001/2).

The other school of thought, often referred to as the integrative school, contends that although power sharing is important in deeply-divided societies, the power-sharing arrangements should not be based on formal, statutory requirements since such formal arrangements may cause deadlock and discourage moderates from cooperating across ethnic lines (Horowitz, 1990). This school propagates a preference that informal incentives should be built into the constitutional, political and electoral system so as to encourage coalitions and cooperation prior to an election without necessarily enforcing coalitions and/or vetos by way of legal prescriptions (Horowitz, 1991, 2000). The electoral system, in particular, should be designed to encourage inter-ethnic cooperation rather than to reward inter-ethnic conflict.

According to Horowitz, those who seek formal constitutional or legal guarantees to protect minority groups, aim at post-electoral arrangements whereby the respective groups are brought together after they have elected their own representatives; while those who support pre-election incentives, prefer to facilitate electoral compromise and coalition building before the election occurs. According to the integrative school the process of coalition forming starts in the pre-election process and rewards must be built into the system to benefit those parties who establish the most effective alliances by way of the electoral system, electoral alliances and the structure of political parties (Horowitz, 2008).

The aim of this article is not to enter into this debate. Suffice it to note that if one moves beyond the theoretical discourse between proponents of the respective schools and takes into account the practical experiences of countries,⁹ the truth about power sharing is probably nestled in a combination of the two approaches. Both schools of thought display shortcomings and neither has been able to develop a predictive model. The consociational-school runs the risk of “freezing ethnic identities” (Baldwin et al., 2007; O’Leary, 2005)¹⁰ by way of forced arrangements, but on the other hand the “integrative” power-sharing school may arguably place too much reliance on “goodwill” and sense of realism of the majority before an election and therefore runs the risk of over-emphasizing informal arrangements which in turn may offer little or no long-term comfort or security to minorities.

The answer for the Permanent Constitution of South Sudan is probably in a combination of constitutionally mandated and informal power-sharing arrangements.

In a 2011 report by the International Crisis Group the following observation is made about the appropriateness of power-sharing arrangements in South Sudan:

Managing South Sudan’s ethno-regional diversity will continue to be a tall order. Political accommodation is necessary regardless of what form the transitional government assumes … It must avoid a “winner-takes-all” mindset and view the appointment of a broadly representative government not as an appeasement alone but as recognition of Southern Sudan’s pluralist character. (International Crisis Group, 2011: 1)

The reality, as has been borne out by many other plural democracies, is that power sharing and decentralization are different sides to the same coin. The one is inextricably linked to the other. Both concepts are essential for new, pluralist, emerging democracies so as to ensure shared rule and self-rule. This is why young democracies such as India, South Africa, Malaysia, Nigeria and Ethiopia cater for some form of power sharing and decentralization in their respective constitutions.

The following are some of the power-sharing mechanisms that may be of relevance to the constitutional review process of South Sudan with the view of finalizing the Permanent Constitution:

Power-sharing in the executive (national and state cabinets)

An important institution, perhaps the most important place for power sharing is the national executive. This is from where national policy originates; where major budgetary decisions are made; and from where the country is in effect governed. As acknowledged above, political analysts have different views as to whether formal, legal arrangements should be made for power sharing in the executive. One view is that in multi-ethnic societies where democracy is still in its infancy, legal guarantees should be written into a constitution so as to ensure power sharing. Another view is that informal incentives should be built into the constitutional, political and electoral system so as to encourage coalitions, cooperation and power sharing without legally prescribing power sharing. There is, in general, agreement between these schools of thought that for reasons of stability, integration and security, some form of power sharing, be it formal or informal, should occur in the executive.

There are three interesting case studies of relevance to this debate:

Nigeria where the Constitution encourages candidates for president and governors to secure a wide electoral base and for the members of government to reflect the diversity of Nigeria;

South Africa where a constitutionally-mandated Government of National Unity governed for about six years after the transition to democracy; and

Switzerland, where an informal arrangement for power sharing between the main political parties has been in place for nearly five decades.

Nigeria: federal character

Nigeria does not have any formal constitutional or statutory requirements for power sharing or quotas in the executive or legislature, but it does encourage by way of its “federal character”-provision in the Constitution, that elections of the president and governors and appointments in the executive and other public offices reflect the population diversity of the country (Akaayar and Dakas, 2005). This informal recognition is referred to as the “federal character” of the nation. The “federal character” refers in essence to the recognition, accommodation and reflection of the diversity of Nigeria’s population in key public positions as well as an encouragement, especially in political positions, to seek cross-community support in order to be elected to public office.

The Constitution contains the following reference to “federal character” so as to reflect the diversity of the Nigerian population:

The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State[sic] or from a few ethnic or other sectional groups in that Government or in any of its agencies. (a14(3))

The notion of “federal character”, which was introduced into the 1979 Constitution of Nigeria and has remained in the Constitution, is meant to signify the pluralist and conciliatory nature of Nigerian federalism.

The “federal character” is found in the constitutional requirements in regard to election of the President, the organization of political parties, the composition of the civil service and the judiciary (aa14, 15 and 42). Provision is made for a Federal Character Commission (a153(c)) to consider formulae to ensure that the “federal character” is reflected in the composition of the civil service, other political posts, and public companies (aa7–9).

The Constitution of Nigeria requires, in pursuance of the “federal character” rule, that a successful candidate for federal President must meet the following requirements in order to be elected:

if there is only one candidate he/she must receive a majority of the “yes” votes in the entire country as well as not less than 25% of the votes cast in no fewer of two-thirds of the states;

if there are two candidates the successful candidate is the one who receives the most votes and not less than one-quarter of the votes cast in two-thirds of the states; and

if there are more than two candidates the successful candidate is the person who receives the highest number of votes cast in the entire nation as well as not less than one-quarter of the votes cast in no less than two thirds of the states (aa133–134).

Similar requirements exist for the election of the governor of each of the federal states so as to ensure that an elected governor draws support from a wide as possible local groupings within the state (a179).

The President, once elected, is required to appoint at least one member of the federal executive from each state so as to reflect the federal character of Nigeria within the national cabinet (a147(3)).

South Africa: Government of National Unity (1993–1999)

The 1993 (Interim) Constitution of South Africa contained unique provisions to facilitate minority representation and power-sharing arrangements for a young nation that had shortly before exited from a long and violent political struggle. The interim arrangements were designed to last only for a defined period of time (10 years) to enable the country to transition into the new democratic system (Venter, 1994).

The most important elements of the Government of National Unity were as follows:

Each political party that held at least 80 seats in the 400-seat National Assembly was entitled to elect from its ranks an Executive Deputy President (a84). If the President became incapacitated or was unavailable to discharge his/her functions, the Deputy Presidents rotated to serve as acting President (a86). The President was required to consult with the Executive Deputy Presidents over a wide range of functions and responsibilities, including “the development and execution of policies” of government and “all matters relating to the management of Cabinet and the performance of Cabinet business” (a82(2)).

The members of the Cabinet were appointed by the President but each political party with more than 20 seats in the National Assembly was entitled to a number of ministers in proportion to the number of seats it held (a88(2)). This meant that each political party with 5% or more of electoral support was entitled to be represented in Cabinet in proportion to its popular support. The President had to consult with the Deputy Presidents when appointing the ministers to Cabinet and the allocation of portfolios to them. All members of Cabinet were collectively accountable to Parliament “for the performance of the functions of the national government and for its policies” (a91(1)).

The Cabinet ministers who represented minority parties did not have a formal veto over any Cabinet decision. The Constitution required, however, that the Cabinet in its deliberations “shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a government of national unity as well as the need for effective government” (a89(2)). This guiding principle encouraged the parties to seek consensus rather than conflict. The chairmanship of the Cabinet rotated between the Deputy Presidents if the President was unavailable (a89(1)).

The Government of National Unity served South Africa remarkably well. It provided the balance between majority aspirations and minority security and it enabled a peaceful transition in a country that had all the potential to move in the opposite direction. The South African experience with the Government of National Unity shows how formal power-sharing arrangements, even if only temporary, can assist a deeply-divided society to make progress on their path to democratization.

Switzerland: the magic formula

The Constitution of Switzerland does not provide for a formal formula for parties to share power, but the country has had an informal power-sharing arrangement that has lasted for many decades. In Switzerland an informal coalition based on the so-called magic 2:2:2:1 formula (Zauberformel) has withstood many challenges and commenced in 1959 (Wolff and Karagok, 2013). According to this formula the four major political parties in the federal parliament are represented in the federal executive (thus no party has an absolute majority) and the presidency rotates on an annual basis (a152). Power sharing has therefore been obtained by agreement and without any legislative quota or guaranteed veto. The power-sharing agreement has now got the status of a convention. Although the agreement may not be legally enforceable, failure to comply with it will bring about serious political consequences and potential instability.¹¹

Options for the Permanent Constitution of South Sudan

The Transitional Constitution does not contain any formal requirements for power sharing in the national or state executives. The President is in a very powerful position to form the national cabinet at his discretion. The President may even dismiss state governors without the decision being open to judicial review or conditional upon approval by the national or state legislatures (a101(r)).

There are several ways in which the Permanent Constitution could provide for, or at least encourage, power sharing within the national cabinet, for example, the electoral system could be devised in a manner that encourages political interests, political parties and groupings to work together before an election and thereby focus on shared values, rather than an electoral system that rewards parties that exploit diversity and conflict. The election of the national President could be based on a Nigerian-type requirement whereby the successful candidate not only requires majority support across the whole nation (if the President is directly elected), but also majority support from a certain number of states. As far as the composition of the national executive is concerned, a South African-type government of national unity could be mandated whereby the major minority parties are represented in the executive in accordance with their political support. This could be a temporary or a long-term arrangement. Provision could also be made that the President must fill seats in the executive from minority groupings or parties or that at least one member per state should be appointed in the national executive. A vaguer requirement could be that the national executive must reflect the “multicultural” nature of the people of South Sudan.

Similar formal and informal power-sharing arrangements that apply to the national institutions, can also be pursued within state constitutions.

Power sharing in the national legislature: the second house

One of the most common ways in federations to facilitate power sharing is through regional representation in the second house of the national parliament (Patterson and Mughan, 1999; Lijphart, 1999). A bicameral parliament is a typical characteristic of federations, although a second house is not exclusive to federations. There are also second houses in some decentralized, unitary systems, of which the best known is probably the House of Lords in the UK.¹² Other unitary systems with bicameral parliaments are the Netherlands, the Republic of Ireland, France, Poland and the Czech Republic. In unitary systems, however, the primary purpose of a second chamber, if any, is not to represent the sub-national entities such as states within national power-sharing arrangements (Watts, 2006).¹³

The power sharing in federations usually takes place as a result of the states, in some form or another, being represented in the second house of the national parliament (Fiseha, 2005). Such a second house, generally speaking, has some areas in which it takes joint decisions with the popularly-elected house and in some areas it may take autonomous decisions. The ways in which practical effect is given to bicameralism by way of the size of the second house, its composition, its powers and its functions, differ greatly between federations (Riker, 1992).

In considering its options in regard to a second house in the Permanent Constitution, South Sudan can usefully draw from the experiences of other second chambers in particularly other federal-type arrangements.

When deciding about institutional options for the Permanent Constitution, clarity is required about the purpose of the second house; the composition of the second house; and the powers of the second house.

The purpose of the second house

The Transitional Constitution of South Sudan provides for a second house, called the Council of States, and it is likely that some form of bicameral arrangement would continue under the Permanent Constitution.

An important question arising is what is the purpose of the Council of States as second house of the National Legislature? Since there was little, if any, public discourse leading up to the enactment of the Transitional Constitution, there is insufficient record as to what the South Sudanese had in mind for the Council of States. The Constitutional Review presents an opportunity to clarify the purpose of the Council. Once the purpose of the second house is clarified, it becomes easier to determine what powers and functions the Council should have, and how the Council should be comprised.

The following are some of the main purposes of bicameral arrangements in contemporary federations:

to consolidate and enhance democratic norms and standards;

to integrate all the member states/regions in the national legislative process;

to enhance power sharing by allowing states to participate actively in the national legislative process, in addition to states also having powers to make autonomous decisions;

to support and facilitate the process of decentralization to state and local government and help to regulate relations between sub-national authorities and the central authorities by way of intergovernmental relations;

to publicize and widen the legislative, policy and political debate and to inform and shape public opinion;

to serve as a forum where draft legislation can “cool off” so as to allow additional public debate, increased scrutiny and consultation with state and local governments and other stakeholders about the merit of a bill (Forum of World Senates, 2000).

Bicameralism need not be limited to the national parliament. Many state parliaments, particularly in federations, also provide for bicameral legislatures. Refer for example to Australia where only one of the states, Queensland, does not have a bicameral parliament; the USA where only one state does not have a bicameral parliament; and India where five of the states have bicameral parliaments.¹⁴

The Constitutional Review needs to consider why a second house is required. What is the purpose of the Council of States; what are the objectives of the Council of States; and why should there be a Council of States? The answer to these questions will then give guidance and assist to determine the composition of the Council of States; the way in which the states are represented in the Council; the relationship between the two houses; and the role of the Council in the conduct of intergovernmental relations. International experience shows that a second house could have multiple objectives, and within a federal framework such a house could be an essential power-sharing institution whereby the states participate in national affairs.

Composition of the second house

The one house of the national parliament in federations is usually representative of the general population. The members of this house are elected through universal franchise. The second house of the national parliament in federations is usually representative of the states. There are several ways in which the members of the second house can be elected or appointed. The second house in federations is where “shared rule” within the national parliament is turned into practice since the second house is, in some form or another, a co-legislature with the first house and as a result there is some form of power sharing between the two houses. The composition of the second house therefore determines to what extent, if any, the states are involved in the national legislative process.

There are various ways for states to be represented in the second house, for example, in some countries the states have equal representation, in other words each state, regardless of the size of its population or territory, has the same number of representatives as any other state. An example of such an arrangement is the Senate of the USA to which each state elects two representatives. South Africa also provides that each of its provinces has the same representation in the National Council of Provinces—10 persons per province (but note the minority parties within the provincial legislatures also make up part of the 10 representatives). In some countries, however, the states have unequal representation depending on the size of the population of the respective states. Germany and Australia are such examples where the number of each state’s representatives depends on the size of the state’s population. In a country such as Ethiopia, the second house represents the ethnic groups comprising the nation rather than separate states (a61).¹⁵ In Ethiopia each ethnic group is represented in the House of Federation. The size of each group determines how many representatives are elected to represent the group, on the condition that each ethnic group is entitled to at least one representative in the House of Federation.¹⁶ A unique aspect of the second house of the South African Parliament is that organized local government (a67)¹⁷ is also entitled to 10 representatives in the National Council of Provinces, albeit that those representatives cannot cast a vote but may participate in debates.

The Constitutional Review in South Sudan needs to consider whether the composition of the Council of States should be based on equal representation per state or whether the size of a state’s population should be reflected in the number of delegates that are elected. Presently the Transitional Constitution envisages that each state has equal representation in the Council regardless of the size of the population of a state. No provision is made for local governments or traditional leaders to be represented in the Council of States.

Election of representatives to the second house

An important question for any bicameral system is to determine how the representatives of the second house should be elected, nominated or appointed. The way in which members of the second house come into office can have an impact on the way in which they exercise their powers. For example, a directly-elected member of a second house may have a greater concern for the views of the electorate that elected him/her than a member appointed by the government of a state or a member who is indirectly elected by the legislature of a state. It is inevitable that a member who is appointed or indirectly elected would have close loyalty to the body that appointed him/her.

The way in which members to the second house are elected resonates closely what the purpose of the second house is. If the second house is intended to represent the views of the governments of the states, then a Bundesrat option is preferable where the governments of the states nominate representatives; but if the views of the state legislatures are sought in the second house then the South African Council of Provinces option may be more applicable where the state legislature elects the representatives. If, however, the Council of States is to represent the people of each state, then a USA-Senate option of direct election by the population of each state may be considered (Sinclair, 1999).

Closely associated with the way in which members of a second house are elected, is the question whether minority parties should be represented in the delegation of each state to the Council of States. Providing for minority parties to be represented in the Council of States, may enhance the role of the Council as a power-sharing house that accommodates the views of the majority and of minorities. Refer for example to the way in which state-based coalitions are represented in the Bundesrat or the way in which minority parties from within the provincial legislatures of the South African provinces are represented in the National Council of Provinces (Rautenbach and Malherbe, 2004).

There are various ways for representatives of the second house to be elected or appointed:

direct election by popular vote as in the Senates in the USA and Australia;

indirect election by state legislatures as in the National Council of Provinces in South Africa and the Council of States in South Sudan;

appointment by the executive of the states as in the Federal Republic of Germany where each state government appoints representatives to the Bundesrat;

a mixture of appointment by the state executive and indirect election by state legislatures as in the South African Council of Provinces where of the 10 representatives from each province, four are appointed by the provincial executive (according to the Bundesrat model) and six are indirectly elected in accordance with proportional representation by the provincial legislatures (aa60 and 61; Taljaard and Venter, 2001)).

This ensures that minority parties within the provincial legislature are also represented in the national second house; a mixture of direct and indirect elections, for example in Malaysia; and ethnic election in the second house, for example in Ethiopia where each ethnic group elects at least one representative to the House of the Federation.

The Transitional Constitution of South Sudan provides that the legislative assemblies of the respective states elect members of the Council of States (a58(1)). The Transitional Constitution is however vague in regard to the process of election of representatives to the Council of States. The Transitional Constitution:

does not specify or guarantee the number of representatives per state;

does not specify the way in which the state assemblies elect the state representatives;

does not specify whether those representatives that are elected must be members of the State assemblies or whether they may be other private persons;

does not specify the term of office of Council of State members; and

does not give guidance as to whether minority parties should form part of the are also delegation of each state.

A62(2) of the Transitional Constitution suggests that members of the Council of States may not be members of a State assembly. Since the composition of the National Legislature is an essential element of the Constitution, it may be considered to include in greater detail those aspects in the final constitution.¹⁸

Important questions to be clarified during the Constitutional Review are whether members of the Council of States should be elected or nominated; and if they are elected, whether it should be by way of direct election by the population of each state or by indirect election by the legislature of each state; what the term of office is; and whether minority parties ought to be included in each State’s delegation.

Powers of the second house

The final question to be considered in regard to the power-sharing functions of the Council of States is what the role of the Council should be in the legislative process of South Sudan. The answer to this question is found in the relationship between the two houses; the autonomous powers of the Council of States; and the role of the Council of States in the conduct of intergovernmental relations.

The second house in federations provides the states the opportunity to participate in the national legislative process and to protect the interests of the states. The second house also gives states an opportunity to influence national policy, and it provides a basis where a common approach to national issues can be developed between the two houses of parliament. The fact that the second house is based on state representation of some sort therefore does not necessarily mean that when voting occurs, the members of the second house slavishly vote in accordance with what may be in the best interest of their state (Jain, 2011: 28). The Bundesrat is arguably the second house that most intimately represents the views of a state government, but experience in the USA suggests that even if senators are directly elected they do not necessarily vote in accordance with state or parochial interests.

There are several categories of legislative powers that can be given to the second house, for example, the second house could have exactly the same powers and functions of the first house. This means that both houses must approve all legislation and if there is disagreement between the houses, a dispute resolution mechanism becomes operational or a bill is dismissed. The second house can delay legislation, but the approval by the second house of legislation is not required. This means the second house can debate some or all draft legislation and take some time for the draft legislation to “cool down” or for it to be subjected to committees or public hearing, but if the second house disagrees with the draft legislation, the decision of the first house prevails. The second house can recommend amendments to the draft legislation. The first house can then decide whether it accepts or rejects the recommendation. Provision could be made that the recommendation of the second house can only be set aside by a special majority in the first house or by way of a joint sitting of the two houses. The second house is given special powers that only it can exercise, for example legislation about matters that impact directly on the states such as state constitutions; state boundaries; and state powers and functions. Special Committees could be established between the first and second house to deliberate jointly about legislation and to make recommendations on issues that affect both houses. A combination of all these options could be pursued.

The nature and extent of the powers of the Council of States under the Permanent Constitution remain to be clarified. The Transitional Constitution contains unique provisions about the powers and functions of the Council of States, but those have not been fully tested in light of the one-party dominance and the strong presidential rule.

What is unique about the Transitional Constitution is that there are in effect three houses—the two houses (National Legislative Assembly and Council of States) (a54(1)) sitting separately and then joint sessions of the two houses (a54(2)). These provisions of the Transitional Constitution require clarification so as to prevent misunderstanding about the roles of the respective houses. The Transitional Constitution determines that the National Legislature makes decisions in joint sittings, but votes are separately counted (a54(3)). The Houses may also sit separately to consider their own matters.

The reasons why the houses sit together but the votes are separately counted, other than for ceremonial purposes, are not clear. Such an arrangement potentially diminishes or weakens the benefits of the Council of States as a house of separate debate, a cooling-off house, and a house of scrutiny. It also emphasizes the dominant role of the popularly-elected house and the potential impact of the one-party dominance.

Both houses of the National Legislature must pass amendments to the Transitional Constitution by a two-thirds majority (a199). No public consultation is required even if legislation that amends the Constitution affects the powers of the states and local governments. The Council of States must, however, approve changes to state names, capitals and boundaries (a59(g)).

The Council of States is in a very weak position when it comes to influencing the annual budget since the National Legislative Assembly approves the budget (aa57(c) and 88). The National Legislative Assembly also has sole control over approving international agreements and treaties (a57(b)). Consideration may be given to allow the Council of States some role in the approval of international agreement, for example in some federations provision is made for a Foreign Affairs Committee between the two houses of the national legislature where:

treaties are discussed—especially those that may impact on State powers and

State cross-border initiatives with neighboring countries are discussed.

Summary

This article provided an overview of some of the power-sharing options that are typical of federal-type arrangements in young democracies such as India, Nigeria, South Africa and Ethiopia.

It was emphasized that the power-sharing and devolution debates in South Sudan should not be approached as mutually exclusive, but rather that a federal constitutional arrangement for South Sudan should include decentralization and power-sharing characteristics.

Power sharing can take various forms and there is a heated discourse between political scientists and constitutional experts as to whether power sharing in the executive should be by way of formal, constitutional mandate or whether it should be left to informal, coalition-forming mechanisms.

This article highlighted the various ways in which countries such as South Africa, Nigeria and Switzerland have attempted to facilitate power sharing in the national executive. It is contended that for an emerging democracy such as South Sudan there may be merit to consider a transitional arrangement such as South Africa had with its Government of National Unity or/and a constitutional requirement such as Nigeria for the executive to be comprised in a manner that reflects the diversity of the country.

It was emphasized in the article that an important power-sharing institution is the bicameral parliament and the representation of states in the second house. To obtain maximum benefit from the Council of States, South Sudan needs to consider what the purpose of the Council is: where decisions can be made about the size of representation of each state; the way in which representatives are elected/nominated; and the powers of the Council in relation to the Legislative Assembly.

In short, the experiences of South Africa, Nigeria, India and Ethiopia demonstrate that for a young democracy such as South Sudan, power sharing, be it formal, informal or a combination, is essential for the transition to a fully fledged democracy.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

Author biography

Dr de Villiers (BA Law, LLB, LLD) is a Member of the State Administrative Tribunal of Western Australia. He is an Honorary Fellow of the Law Faculty of the University of Western Australia. He recently acted as the international constitutional expert in the Forum of Federation’s projects in Ethiopia, Sudan and South Sudan on federalism, decentralization and intergovernmental relations. The views expressed in this article are those of the author and do not intend to reflect the views or opinions of any other person or entity.

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