SUBNATIONAL CONSTITUTION-MAKING IN SOUTHERN SUDAN

Transcription

1 SUBNATIONAL CONSTITUTION-MAKING IN SOUTHERN SUDAN Christina Murray and Catherine Maywald # I. INTRODUCTION Sudan is the largest country in Africa, and one of the most troubled. Civil war between the north and south has dominated its history since its independence in Commonly the conflict has been oversimplified as the northern Muslim Arabs fighting the southern Christian or animist Africans. Increasingly though, the true complexity of the north-south conflict is being realised, with a recognition that religion, ethnicity, political affiliation, the underdevelopment of the south, and disputes over natural resources all play a role. 1 The civil wars have severely impeded development in most parts of Sudan, particularly in the south, where there is little basic infrastructure and few people have power, running water, or sanitation. The wars have also had a deeply destabilising effect on most of Sudan s nine Some of the information in this Article is drawn from work that the authors have done in Sudan under the auspices of the National Democratic Institute for International Affairs ( NDI ). We wish to thank NDI for its assistance, and in particular we thank senior programme officer, Susan Stigant, for her thoughtful comments on this Article. It should be noted that the views expressed by the authors are not in any way intended to reflect the views of NDI. We also wish to thank Andrea M Paradzi, Richard Stacey, and Paula Youens for their research assistance. # Christina Murray ([email protected]) is Professor of Constitutional Law and Human Rights at the University of Cape Town, South Africa; Catherine Maywald ([email protected]) is a legal consultant and a graduate student at New York University. 1. See DOUGLAS H. JOHNSON, THE ROOT CAUSES OF SUDAN S CIVIL WARS, at xviii-xx, (2003); see also Luka Biong Deng, The Challenge of Cultural, Ethnic and Religious Diversity in the Peace Building and Constitution-Making in the Post-Conflict Sudan (Oct. 2005) (unpublished paper, on file with author). 1203

2 1204 RUTGERS LAW JOURNAL [Vol. 37:1203 neighbours. Many of these countries have found themselves acting as a refuge for the Sudan People s Liberation Army, the army of the south, and tens of thousands of desperate refugees. Moreover, their governments have provided varying degrees of support over the past twenty years, either to the government in the north or to the rebels in the south. The north-south civil war has not been the only conflict troubling Sudan. In the western region of Darfur, fighting between government-backed militias and local rebel groups has raged since That conflict has been described as genocide and as the worst humanitarian crisis currently facing the world. A peace deal concluded in Abuja on 5 May 2006 has thus far failed to take hold, with only one of the rebel groups agreeing to sign. 2 Like the longstanding north-south conflict, the conflict in Darfur has had serious repercussions for the region, with refugees flowing across the border into eastern Chad, rebel groups making frequent incursions into Chad, and a suspected link between Sudanese government-supported rebel groups and a recent coup attempt in the Chadian capital. The situation in Darfur dominates media coverage about Sudan. However, tensions caused by a rebellion in the east of the country have been threatening to boil over since 1996; 3 and, despite the 2005 peace agreement between the north and south, sporadic ethnic conflicts and violent incidents involving the Lord s Resistance Army from northern Uganda continue to undermine peace in the south. Notwithstanding all of these problems, a remarkable process of constitution-making is currently taking place in the states of Southern Sudan. The circumstances are challenging, to say the least. The catalyst for the process is the Comprehensive Peace Agreement, signed by the Government of Sudan and the Sudan People s Liberation Movement/Army in January The peace agreement requires interim constitutions for Sudan as a whole, Southern Sudan, and finally, each state. While some commentators hold limited hopes for the peace agreement lasting, 4 legislators in the ten 2. By the 31 May 2006 deadline, continued efforts by African Union mediators failed to convince the other two main Darfur rebel groups to sign the agreement. However, on 8 June 2006, splinter factions from those two groups signed a declaration of commitment, pledging to abide by the terms of the peace agreement. 3. On 19 June 2006 the Sudanese Government and the eastern rebels signed a pact to cease hostilities in the region, and agreed on a declaration of principles to guide future negotiations on substantive disputed issues. This led to the signing of a peace deal between the Government and the rebel Eastern Front on 14 October Some international commentators are concerned that the peace will not hold until the general elections, which are scheduled to be held by July See INT L CRISIS GROUP, AFR. REPORT NO. 106, SUDAN S COMPREHENSIVE PEACE AGREEMENT: THE LONG ROAD AHEAD

3 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1205 southern states are eagerly learning to find their way around a constitution. They are engaging in avid debates about women s rights and the structures of government, how judges should be appointed, and the relationship of their state governments to the Government of Southern Sudan and the Government of National Unity in Khartoum. Bahr el Jebel State took the lead in the state constitutional development process, and on 17 April 2006, a banner flew from the seat of its state legislature in Juba proclaiming Yay! Yay! Yay! The Interim State Constitution Adopted. This Article describes the context within which the interim state constitutions are being drafted in the ten states of Southern Sudan, and outlines the process of constitutionmaking and the content of the new constitutions. II. THE COMPREHENSIVE PEACE AGREEMENT A. The Background to the CPA Two decades of civil war between the north and south formally ended on 9 January 2005, when the Government of Sudan and the Sudan People s Liberation Movement/Army ( SPLM/A ) 5 signed the Comprehensive Peace Agreement ( CPA ) in Nairobi, Kenya. The CPA is comprehensive in one sense only: it covers the core disputes between Sudan s former national government and the SPLM. It is anything but comprehensive from the perspective of the many groups in Sudan that were excluded from the negotiations, and which now find themselves side-lined in the political processes taking place under the CPA. Sudan was the first British territory in Africa to be granted independence after the Second World War. However, the conflict between the north and 1 (2006), available at (discussing the fragility of the peace); AFRICAN SEC. ANALYSIS PROGRAMME, INST. FOR SEC. STUDIES, THE SUDAN IGAD PEACE PROCESS: SIGNPOSTS FOR THE WAY FORWARD 5-8 (2004), available at [hereinafter SIGNPOSTS FOR THE WAY FORWARD] (discussing concerns about the lack of inclusiveness in the north-south peace process); John Young, Sudan: A Flawed Peace Process Leading to a Flawed Peace, 103 REV. OF AFR. POL. ECON. 99, 106 (2005). For a survey of attitudes to the settlement, see generally TRACI D. COOK & LUKA BIONG DENG, NAT L DEMOCRATIC INST. FOR INT L AFFAIRS, A FOUNDATION FOR PEACE: CITIZEN THOUGHTS ON THE SOUTHERN SUDAN CONSTITUTION (2005), available at 5. The formal name of the group that represented the south in the negotiations and signed the CPA is the Sudan People s Liberation Movement/Army. As it is the Movement and not the Army that is now governing the south, when this Article deals with matters subsequent to the peace negotiations, it is referred to as the SPLM.

4 1206 RUTGERS LAW JOURNAL [Vol. 37:1203 south that has dominated the last fifty years of Sudan s history broke out in 1955, the year before independence, as southerners began to doubt that the terms concerning independence to which they had agreed would be honoured. The conflict ended with the signing of the Addis Ababa Agreement in 1972, but the peace was short-lived. In 1983, conflict again erupted when the national government breached the agreement in a number of ways, most signficantly through the imposition of Shari a law throughout the country. 6 In 1993, the heads of state of Kenya, Eritrea, Ethiopia and Uganda formed a mediation committee under the auspices of the Inter-governmental Authority on Development ( IGAD ). In 1994, IGAD initiated formal negotiations with the SPLM/A and the Sudanese Government. After an initial unsuccessful round of talks, it presented the parties with a Declaration of Principles ( DOP ) intended to provide the basis for agreement. 7 The DOP required from the parties a commitment to three principles fundamental to the struggle of the south: a right to self-determination; separation of state and religion; and a referendum in the south with independence as an option. 8 Although it was at first unsuccessful as a basis for reaching agreement, the 1994 DOP provided the framework for various negotiation attempts during the 1990s and for the eventual settlement reflected in the CPA For the most detailed recent account of the history of the conflict in the Sudan, see generally JOHNSON, supra note 1. A number of useful, shorter accounts are also available. See, e.g., ABEL ALIER, SOUTHERN SUDAN: TOO MANY AGREEMENTS DISHONOURED (3d ed. 2003); Francis M. Deng, African Renaissance: Towards a New Sudan, 24 FORCED MIGRATION REV. 6 (2005) (providing a succinct history and analysis of the prospects of the Sudan); SIGNPOSTS FOR THE WAY FORWARD, supra note INTERGOVERNMENTAL AUTH. ON DEV., PEACE INITIATIVE, DECLARATION OF PRINCIPLES, available at /igad_dop.html; see also FRANCIS DENG & MOHAMED I. KHALIL, AFR. INST. OF S. AFR., SUDAN S CIVIL WAR: THE PEACE PROCESS BEFORE AND SINCE MACHAKOS 6-13 (2004); KORWA G. ADAR ET AL., SUDAN PEACE PROCESS: CHALLENGES AND FUTURE PROSPECTS (2004). 8. The DOP also set national unity as a priority, provided for multiparty democracy and decentralisation through a loose federation or a confederacy, and stated that internationally recognised human rights should be embodied in the constitution. 9. During negotiations in 1997 and 1998, the government accepted the DOP and agreed to the principle of self-determination for Southern Sudan. But other critical issues remained unresolved, including: the duration of the proposed interim period before a referendum on self-determination would take place; the governing arrangements for that interim period; and the separation of state and religion. In addition, the question of the border between the north and south resurfaced. The government insisted that the south should be defined as the provinces of Bahr el Ghazal, Equatoria, and Upper Nile as demarcated at independence in 1956, while the SPLM/A argued that Southern Kordofan, Southern Blue

5 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1207 B. Negotiating the CPA The negotiations that took place in Machakos, Kenya in June and July 2002 between the Government of Sudan and the SPLM/A marked the beginning of the negotiation process that eventually led to the 2005 CPA. The Machakos Protocol, signed on 20 July 2002, recorded the agreement of the parties on a number of key issues and provided a framework for future talks. It reaffirmed national unity as the guiding principle for both parties; but it also affirmed the right of the Southern Sudanese to self-governance and self-determination. The parties committed themselves to negotiating a ceasefire as part of a comprehensive solution that would be designed to make the unity of Sudan attractive. In addition, the Protocol provided a framework and a process for drafting a new national constitution, ensured protection for religious freedoms, and provided that Shari a law would be a source of legislation in the north, but not in the south. 10 Part B of the Machakos Protocol set out a transition process for the implementation of the anticipated comprehensive agreement, consisting of: (a) a six-month pre-interim period following the conclusion of the agreement and during which, among other things, any institutions required by the peace agreement would be set up, hostilities would cease, mechanisms to monitor the agreement would be set up, and a constitutional framework would be established; (b) a six-year interim period during which the institutions and monitoring mechanisms established in the pre-interim period would operate and the parties would work to make the unity of Sudan attractive to the people of Southern Sudan; and Nile, and certain other regions on the borders of the three core provinces belonged in the south. 10. Machakos Protocol, Sudan SPLM/A, pt. C, 3.2.2, July 20, 2002, available at ( Nationally enacted legislation having effect only in respect of the states outside Southern Sudan shall have as its source of legislation Shari[ ]a and the consensus of the people. ). This provision is notionally balanced by part C, section 3.2.3, which states: Nationally enacted legislation applicable to the southern States and/or the Southern Region shall have as its source of legislation popular consensus, the values and the customs of the people of Sudan including their traditions and religious beliefs, having regard to Sudan s diversity[]. Id. pt. C, It reflects a major concession on the part of the SPLM, which had previously insisted on a single secular state.

6 1208 RUTGERS LAW JOURNAL [Vol. 37:1203 (c) a referendum for the people of Southern Sudan at the end of the interim period, either to confirm the unity of Sudan or to vote for secession. 11 The provisions of the Machakos Protocol reflect significant compromises. The six-year interim period was a compromise between the short transition period on which the SPLM had long insisted, and the government s demand for a ten-year period. The agreement that Shari a law could be used as a source of legislation in the northern states was an important concession by the SPLM, and the acceptance of a referendum for the south was an equally important concession by the government. The Machakos Protocol paved the way for the negotiation, over a twenty-two month period, of five additional protocols that resolved the most significant outstanding political, economic, and security issues at the root of the conflict between the two parties. 12 On 31 December 2004, two more technical agreements were concluded concerning the implementation of the protocols. 13 This set the stage for the January 2005 signature of the CPA and the beginning of the pre-interim period. C. The Constitutional Framework established by the CPA Described as decentralised under the CPA, Sudan is an asymmetrical federation with four levels of government. 14 The most significant division is between the north and the south. The SPLM and other southern political 11. See id. pt. B. 12. These agreements were all signed at Naivasha, Kenya, and consist of the following: an agreement on security arrangements, signed on 25 September 2003; an agreement on wealth sharing, signed on 7 January 2004; and three separate agreements signed on 26 May 2004 on power sharing, the resolution of the Abyei conflict, and the resolution of the conflict in Southern Kordofan and Blue Nile. 13. See generally Agreement on Permanent Ceasefire and Security Arrangements Implementation Modalities during the Pre-Interim and Interim Periods, Sudan-SPLM/A, Dec. 31, 2004, available at agreement.pdf [hereinafter Agreement on Ceasefire]; Implementation Modalities of the Protocol on Power Sharing, Sudan-SPLM/A, Dec. 31, 2004, available at 0on%20Power%20Sharing%20SPLM.pdf [hereinafter Implementation Modalities]. 14. See Protocol on Power Sharing, Sudan-SPLM, pt. I, , May 26, 2004, available at The terms federal and federalism were deliberately avoided, but most scholars would agree that the way in which powers are divided places Sudan in the broad family of federal states. There are three levels of government in the north (national, state, and local), and four in the south (national, Southern Sudan, state, and local).

7 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1209 parties are granted an agreed percentage of representation at the national level in the Government of National Unity 15 until general elections are held. 16 Southern Sudan has substantial autonomy with its own government, control over its own army, the right to develop bilateral international relations, its own resource base, access to oil revenues, and control of its own branch of the National Bank. Five schedules to the CPA divide power amongst the national, Southern Sudan, and state governments. Southern autonomy is again evident here as, for example, the Government of Southern Sudan may establish minimum Southern Sudan standards or Southern Sudan uniform norms in respect of a range of important matters, including education, health, welfare, police... [and] commercial regulation. 17 The country is divided into twenty-five states, 18 ten of which fall within Southern Sudan. 19 Pending the 2009 elections, power in the states is divided among the dominant northern party, the National Congress Party ( NCP ), the SPLM, and other northern and southern political parties. In the northern states, the NCP and other northern parties collectively hold 90% of executive and legislative power; in the southern states, on the other hand, the SPLM and other southern parties hold 90% of the power. Although the CPA sets out the powers of all the states, the southern states are clearly subject to the control of the Government of Southern Sudan. A key provision of the CPA in this regard requires all linkages between the national government and the governments of the southern states to be through the Government of Southern Sudan no southern state is to engage with the national government independently. 20 Local government, the fourth level of government in the south, is the responsibility of the states See id. pt. II, (explaining that seats in the National Assembly are allocated as follows: 52% to the National Congress Party; 28% to the SPLM; 14% to other northern political forces; and 6% to other southern political forces). 16. Under the Interim National Constitution ( INC ), general elections will be held by the end of the fourth year of the interim period, i.e., by July INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 15, ch. II, 216 (2005). 17. Protocol on Power Sharing, supra note 14, pt. V, sched. B, cl In 1994, Sudan was re-organised into twenty-six states. With the signing of the CPA in 2005, Western Kordofan was incorporated into Southern Kordofan, leaving twenty-five states. 19. The ten that fall within Southern Sudan include Lakes State, Western Bahr El- Ghazal, Northern Bahr El-Ghazal, Warrap, Upper Nile, Jonglei, Unity, Western Equatoria, Eastern Equatoria, and Bahr El-Jebel. 20. Protocol on Power Sharing, supra note 14, pt. I, Unsurprisingly, the CPA deals very briefly with local government, and simply asserts in the Protocol on Power Sharing, Local Government is an important level of Government, and leaves responsibility for its election, organization and proper functioning

8 1210 RUTGERS LAW JOURNAL [Vol. 37:1203 Under the Machakos Protocol, the parties were to establish a representative National Constitutional Review Commission during the preinterim period, with its first task being to draft a Legal and Constitutional Framework to govern the Interim Period. 22 The Protocol on Power Sharing expanded on this, allocating the commission six weeks to prepare a constitutional text based on the CPA and the 1998 Sudan Constitution. 23 Upon adoption by the National Assembly and the SPLM National Liberation Council, the text, known as Sudan s Interim National Constitution ( INC ), was to become the supreme law of the land during the interim period. 24 The Protocol on Power Sharing also provided for an Interim Constitution of Southern Sudan ( ICSS ) and individual state constitutions. 25 The ICSS was to be drafted by an inclusive Southern Sudan Constitutional Drafting Committee and adopted by the Transitional Assembly of Southern Sudan by a two-thirds majority of all members. 26 The state constitutions were to be prepared and adopted by the state legislatures, 27 but they were to be aided in this task by model constitutions prepared by the National Constitutional Review Commission. 28 The Protocol on Power Sharing requires all of the subnational constitutions (that of Southern Sudan and those of the twenty-five states) to to the states. Id. pt. IV, 4.3. There is no power sharing arrangement for local government in the CPA or elsewhere, and local government is an exclusive state power. See id. pt. V, sched. C, cl. 3. However, that is subject to the over-riding power of the Government of Southern Sudan ( GoSS ) to coordinate government at the regional level in the south. Id. pt. V, sched. B, cl. 9. The GoSS intends to establish the system of local government throughout the south. See INTERIM CONST. OF SOUTHERN SUDAN pt. 11, ch. II, 173 (2005). A GoSS committee is designing the new local government system. 22. Machakos Protocol, supra note 10, pt. C, Representation on the National Constitutional Review Commission was not defined in the Machakos Protocol or in the body of the Protocol on Power Sharing. This issue was settled in the Implementation Modalities of the Protocol on Power Sharing, which provided for the Commission to be comprised of sixty members based on the power sharing formula for the National Assembly. See Implementation Modalities, supra note 13, activity no. 41; Protocol on Power Sharing, supra note 14, pt. II, Protocol on Power Sharing, supra note 14, pt. II, , Id. pt. II, Id. pt. III, 3.2; pt. IV, Id. pt. III, Id. pt. IV, Id. pt. II, ( Without prejudice to the functions of the State Legislatures, the National Constitutional Review Commission shall prepare model Constitutions for the States, subject to compliance with the National Constitution, and, as relevant, the Constitution of Southern Sudan. ).

9 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1211 be in conformity with the INC. 29 In addition, the constitutions of the southern states must be in conformity with the ICSS. 30 To secure compliance, the Protocol requires the national Ministry of Justice to declare the compatibility of the constitution of Southern Sudan with the Interim National Constitution, and also declare the compatibility of the constitutions of the States with the Interim National Constitution and, as appropriate, with the constitution of Southern Sudan. 31 Only once compatibility is declared can the constitution be signed into effect by the relevant head of government. The time frames set out in the CPA for the drafting and adoption of the Southern Sudan and state constitutions were extremely optimistic, if not entirely unrealistic. The INC was approved by the National Assembly and the SPLM National Liberation Council on 6 July 2005, just two days before the agreed deadline of the end of the pre-interim period. 32 The CPA allowed three to four weeks after the enactment of the INC for the drafting and adoption of the ICSS, 33 but in fact it did not come into force until 5 December A similarly brief time period was allocated to the state legislatures for the drafting of their constitutions. In the north, they were to 29. See id. pt. II, ; pt. III, 3.2; pt. IV, Id. pt. IV, Id. pt. II, The requirement that the constitutions be approved echoes the South African constitution-making process (and perhaps reflects the influence of South Africans in the Sudanese negotiations). But, in South Africa, it was the Constitutional Court that was required to certify that the new national constitution complied with the terms of the multi-party negotiating process captured in an interim constitution. See Christina Murray, Negotiating Beyond Deadlock: From the Constitutional Assembly to the Court, in THE POST- APARTHEID CONSTITUTIONS: PERSPECTIVES ON SOUTH AFRICA S BASIC LAW 103, (Penelope Andrews & Stephen Ellmann eds., 2001). South Africa s subnational (provincial) constitutions may not be implemented until the Constitutional Court has certified that they were adopted according to the process set out in the national constitution and that they are not inconsistent with the national constitution. CONST. OF THE REPUBLIC OF S. AFR. ch. 6, 144 (1996). 32. The INC was signed into law by the president of the Republic on 10 July See Implementation Modalities, supra note 13, activity nos. 47(b), 48. However, there is some ambiguity in the Implementation Modalities. Item 47(b) concerns the drafting and adoption of the Southern Sudan constitutional text and states that it should be completed [w]ithin three weeks for drafting from the establishment of the [Southern Sudan Constitutional Drafting Committee] and within one week for adoption from the convening of [the Transitional Assembly of Southern Sudan ( TASS )]. Id. activity no. 47(b). This could be read as allowing three weeks for drafting, and one week for consideration and adoption by the Assembly. Alternatively, under activity 48, the Implementation Modalities state that the TASS must be established within two weeks from the adoption of the [INC]. Id. activity no. 48. Read together these two activities suggest that the ICSS was to be drafted and adopted within a three-week period. However, if 47(b) is read alone, the period is four weeks.

10 1212 RUTGERS LAW JOURNAL [Vol. 37:1203 be adopted by August 2005, within three weeks of the establishment of the state legislatures, and in the south, within four weeks of the signing of the Southern Sudan Constitution. 34 Understandably, this did not happen. At the time of writing, in June 2006, the state constitutional drafting process was still underway in both the north and the south. In addition to prescribing important aspects of the drafting process, the Protocol on Power Sharing determined the most significant features of the anticipated national constitution and, to a lesser extent, of the subnational constitutions. It prescribed the percentages for representation of political parties in the executive and legislature at the national, Southern Sudan, and state levels prior to the elections, 35 and it stipulated who would fill the roles of president and vice president. 36 It determined the structure of the judiciary, 37 set goals for integrating the civil service, 38 and required the establishment of various independent institutions, 39 which were intended to contribute to a peaceful transition and the unity of the country. 40 It also listed the rights to be protected in the national constitution, 41 specified the main institutions to be established at the Southern Sudan and state levels, 42 and, crucially, divided powers between the national, Southern Sudan, and state governments. 43 The CPA has had a significant effect on the substantive content of the national, Southern Sudan, and state constitutions. Indeed, when the Protocols on Power Sharing, Wealth Sharing, and Security Arrangements are read together, it is apparent that little of political significance was left to be settled in the INC and the subnational constitutions. The requirement of (and procedures for ensuring) compatibility prescribed and influenced their content, and tight time frames left little opportunity for innovation. However, the reach of the CPA is limited in a way that might surprise lawyers: although the CPA sets a deadline for elections and anticipates a transition to 34. Id. activity no. 58(a). Following the agreed timeframe, this would have been by the end of September Protocol on Power Sharing, supra note 14, pt. II, 2.2.5; pt. III, 3.5.1; pt. IV, Id. pt. II, Id. pt. IV, 4.6; pt. III, Id. pt. II, Id. pt. II, See id. pt. II, See id. pt. I, See id. pts. III, IV. 43. See id. pt. V, scheds. A F.

11 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1213 permanent constitutions, it does not say anything about the timing or process for that transition. III. THE INTERIM CONSTITUTION OF SOUTHERN SUDAN The first draft of the ICSS was prepared by a fifteen-member Southern Sudan Constitutional Technical Drafting Committee, which met in Rumbek, Southern Sudan in July and August Initially, the Committee requested assistance from four non-governmental groups, which prepared draft constitutional texts. 44 However, it seems that after consideration of the drafts, the Committee decided to conform quite closely to the INC when drafting the new constitution for Southern Sudan. The similarity between the ICSS and the INC clearly reflects the constraints under which the drafters of the ICSS worked. Most importantly, the key political issues had already been decided on in the CPA and the INC. The need to gain approval from the national Ministry of Justice (in the form of a certificate of compatibility) is also likely to have weighed on the minds of the drafters, particularly given on-going tensions between the north and the south and the fragile political environment during that period. The first draft of the ICSS was reviewed and revised by a forty-member Southern Sudan Constitutional Drafting Committee, which met in Rumbek in August and September The committee included representatives of the SPLM, the NCP, and other southern political forces. 45 A number of issues provoked debate in the process of amending the draft, including the structure and powers of local government, the role of traditional authority, the appointment of judges, the rights of women, children and HIV positive persons, the secular nature of Southern Sudan, and the criteria for citizenship. Many of these issues would later cause debate amongst drafters preparing the state constitutions. A revised draft of the ICSS was adopted by the committee and presented to the Transitional Southern Sudan Legislative Assembly, which approved it on 31 October The national Ministry of 44. These were the National Democratic Institute for International Affairs ( NDI ), the Max Planck Institute for Comparative Public Law and International Law, Sudanese Civil Society, and Rule of Law International ( RoLI ). Notably, only one of these groups is Sudanese. 45. The Southern Sudan Constitutional Drafting Committee was to be comprised of forty members allocated according to the power sharing formula agreed on for the Southern Sudan Assembly in the Protocol on Power Sharing, supra note 14, pt. III, (70% SPLM, 15% NCP, 15% other southern political forces). See also Implementation Modalities, supra note 13, activity no. 47(a). It is not clear whether this exact formula was complied with.

12 1214 RUTGERS LAW JOURNAL [Vol. 37:1203 Justice issued a certificate of compatibility on 14 November 2005, 46 and the ICSS was signed into law by the president of Southern Sudan on 5 December 2005, thus becoming the first constitution for Southern Sudan. As required by the CPA and the INC, the ICSS sets up a presidential system of government. The president of Southern Sudan is directly elected for a five-year term. 47 The Council of Ministers is appointed by the president in consultation with the [v]ice [p]resident and approved by a majority of members of the Southern Sudan Legislative Assembly. 48 Correspondingly, the assembly can pass a vote of no confidence against a minister by a twothirds majority. 49 Pending the 2009 elections, the position of president of Southern Sudan (and Commander-in-Chief of the SPLA) is to be filled by the SPLM Chairman or his successor, 50 and members of the assembly are to be appointed by the president after broad consultation with the relevant political forces. 51 Until the elections, membership in the council and the assembly will be split according to agreed percentages: 70% to the SPLM; 15% to the NCP; and 15% to other Southern Sudan political forces. 52 The ICSS seeks to establish an independent judicial branch. This is reflected in checks and balances in the appointment and removal processes of the most senior judges. Justices of the Southern Sudan Supreme Court and Courts of Appeal are to be appointed by the president; other judicial appointments will be regulated by law. Appointments to the supreme court must be approved by a two-thirds majority of all members of the assembly, 53 and supreme court justices can be removed only by order of the president, and on the recommendation of the president of the supreme court, with the approval of two-thirds of assembly members Note that the Ministry of Justice failed to comply with the requirement in the CPA and the INC that it should issue the certificate of compatibility within two weeks of receipt. 47. The elections must be regulated by the National Elections Commission. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 11, ch. II, 163(1) (2005). 48. INTERIM CONST. OF SOUTHERN SUDAN pt. 6, ch. IV, 112(1) (2005). 49. Id. pt. 6, ch. IV, 120(1). 50. Id. pt. 6, ch. III, 111(1). 51. Id. pt. 5, ch. II, 94(2). 52. Id. 53. Id. pt. 7, 135(2). 54. Id. pt. 7, 136(2). The majority required gives the SPLM control over these appointments as it holds 70% of the seats. Few would argue for a higher majority and in many democratic countries with an undisputed commitment to the rule of law, the government controls judicial appointments. However, to secure the independence and legitimacy of the judiciary before elections, it may have been wise to establish a process that did not give one political group control over all judicial appointments.

13 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1215 The supreme court has original jurisdiction to decide on matters arising under the ICSS and the southern state constitutions, 55 but the National Constitutional Court is the custodian of all the constitutions in Sudan and can hear appeals on constitutional matters from decisions of the Southern Sudan Supreme Court. 56 Impeachment proceedings against the Southern Sudan president or vice president will be conducted in the supreme court. 57 As already noted, in many respects the ICSS mirrors the INC, especially regarding core government organs and institutions. The INC repeats the rather emphatic provisions in the CPA regarding the decentralised system of government, 58 devolution of powers, 59 and the links between the levels of government, 60 and the ICSS follows suit. 61 However, at various points the ICSS deliberately departs from the INC. One major area of difference is the treatment of religion. The INC includes several references to religion as a source of moral strength, harmony, and inspiration for the Sudanese people, 62 and requires the state to enact 55. Id. pt. 7, 130(1)(b). 56. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 5, ch. I, 122(1) (2005). 57. INTERIM CONST. OF SOUTHERN SUDAN pt. 6, ch. II, 105(2) (2005). It is not clear whether the National Constitutional Court can hear appeals from the Southern Sudan Supreme Court about impeachment. The ICSS implies that the Southern Sudan Supreme Court has the final say, id. pt. 6, ch. II, 105(5), but the INC suggests that there could be an appeal to the National Constitutional Court. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 5, ch. I, 122(1)(c) (2005). 58. The INC sets out the levels of government in Sudan s decentralised system, and almost exactly mirrors section 1.3 of the Protocol on Power Sharing. Compare INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 1, ch. IV, 24 (2005), with Protocol on Power Sharing, supra note 14, pt. I, Section 25 of the INC, regarding principles to guide the devolution and distribution of powers between all levels of government, is very closely based on paragraph 1.4 of the Protocol on Power Sharing. Compare INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 1, ch. IV, 25 (2005), with Protocol on Power Sharing, supra note 14, pt. I, 1.4. The key principles include: recognition of the autonomy of the GoSS and the states; the need for norms and standards that reflect national unity while asserting the diversity of the Sudanese people; and recognition of the need for the involvement of the Sudanese people particularly those from Southern Sudan at all levels of government. 60. The language in section 26 of the INC regarding inter-governmental linkages is taken directly from section 1.5 of the Protocol on Power Sharing, supra note 14, pt. I, 1.5. In particular, as noted earlier, the GoSS is to serve as the link between the national government and the governments of the southern states. 61. See INTERIM CONST. OF SOUTHERN SUDAN pt. 3, ch. III, (2005). The language in these sections is amended where necessary to make it applicable at the Southern Sudan level as opposed to the national level. 62. See, e.g., INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 1, ch. I, 1(3), 4(b) (2005).

14 1216 RUTGERS LAW JOURNAL [Vol. 37:1203 laws to protect society from delinquency and social evils, and to steer the society... towards virtuous social values consistent with religions and cultures of the Sudan. 63 These provisions do not appear in the ICSS, which, reflecting the south s longstanding demands, clearly states that Southern Sudan will be a secular region, with separation of state and religion, equal treatment for all religions, and no official religion. 64 As agreed on in the Machakos Protocol, the INC provides for national laws outside Southern Sudan to be based on Islamic Shari a, whereas national laws applicable in Southern Sudan will be based on popular consensus [and] the values and the customs of the people of the Sudan, including their traditions and religious beliefs. 65 The ICSS purports to amend this, stating that the sources of legislation in Southern Sudan include, among other things, the customs and traditions of the people of Southern Sudan and the popular consensus of the people of Southern Sudan. 66 Further, while the INC and the ICSS include the same set of religious rights, the ICSS guarantees those rights by placing them in the bill of rights, 67 while the INC requires the state to respect those rights, but places them in a chapter of guiding principles, rather than in the national bill of rights. 68 The bill of rights in the INC does include the freedom of religious creed and worship, but this right is subject to requirements of law and public order. 69 There are other differences between the two bills of rights. The Southern Sudan bill has broader application and stronger enforcement mechanisms than the national bill. 70 The scope of the Southern Sudan bill is also 63. Id. pt. 1, ch. II, 16(1). 64. INTERIM CONST. OF SOUTHERN SUDAN pt. 1, ch. I, 8 (2005). 65. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 1, ch. I, 5(2) (2005). 66. INTERIM CONST. OF SOUTHERN SUDAN pt. 1, ch. I, 5 (2005). 67. See id. pt. 2, See INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 1, ch. I, 6 (2005). 69. Id. pt. 2, The national bill of rights applies only to [t]he State, id. pt. 2, 27(2), whereas the Southern Sudan bill applies to all organs and agencies of the Government of Southern Sudan and... all persons. INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 13(2) (2005). While the national bill of rights appears to require implementing legislation, see INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 2, 27(4) (2005), there is no such provision in the Southern Sudan bill. Further, the powers and functions of the Southern Sudan Human Rights Commission are more substantive than those of the National Human Rights Commission. Compare INTERIM CONST. OF SOUTHERN SUDAN pt. 9, ch. IV, (2005), with INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 8, 142 (2005). The attention paid to human rights in both the ICSS and in the constitutions of the southern states discussed below is an important reaction against past abuses of rights, particularly in the 1990s. See ANN

15 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1217 broader, 71 with more rights granted to women, 72 children, 73 and HIV positive persons; 74 and it imposes greater restrictions on the use of the death penalty. 75 Other significant departures from the INC in the ICSS 76 are the inclusion of a definition of Southern Sudanese for the purposes of voting in the referendum on self-determination; 77 provisions on the political and economic objectives of Southern Sudan; 78 requirements that at least 25% of the members of executive and legislative organs of government should be women, and that there should be substantial representation of women in judicial organs; 79 the requirement that the Southern Sudan Legislative MOSELY LESCH, THE SUDAN: CONTESTED NATIONAL IDENTITIES (1998), for a succinct description of rights abuses in the 1990s. 71. The ICSS itself states, The rights and freedoms guaranteed by this Constitution supplement and complement the Bill of Rights in the Interim National Constitution. INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 13(5) (2005). 72. Compare id. pt. 2, 20, with INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 2, 32 (2005). 73. The ICSS dedicates the whole of section 21 to the rights of the child, whereas the INC includes one sentence on children in its section 32 on the rights of women and children. See INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 21 (2005); INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 2, 32(5) (2005). 74. The ICSS includes HIV status on a list of characteristics that the government may not use as the basis for discrimination against any citizen when providing access to education. INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 33(1) (2005). The equivalent provision of the INC does not include HIV status on its list, which is restricted to religion, race, ethnicity, gender or disability. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 2, 44(1) (2005). 75. The INC allows the application of the death penalty for retribution, hudud or punishment for extremely serious offences. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 2, 36(1) (2005). The ICSS removes the specific references to retribution and hudud, restricting the application of the death penalty to punishment for extremely serious offences. INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 25(1) (2005). 76. The requirement of a two-thirds majority for amending the ICSS differs from the INC, which requires a majority of three-quarters for its amendment. Compare INTERIM CONST. OF SOUTHERN SUDAN pt. 15, 206(1) (2005), with INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 17, 224(1) (2005). However, this difference is prescribed by the CPA. See Protocol on Power Sharing, supra note 14, pt. II, 2.2.7; pt. III, INTERIM CONST. OF SOUTHERN SUDAN pt. 1, ch. II, 9(2) (2005). This issue is still controversial in the south. See COOK & DENG, supra note 4, at (reflecting division on the question of citizenship, with some accepting a person of northern origin born in the south as a southerner and others denying that possibility). For some, cultural identity, adherence to traditional practices and traditional markings are important. 78. INTERIM CONST. OF SOUTHERN SUDAN pt. 3, ch. I, (2005). 79. Id. pt. 5, ch. I, 58(1); pt. 6, ch. IV, 112(3); pt. 7, 126(6) (legislature, council of ministers, judiciary).

16 1218 RUTGERS LAW JOURNAL [Vol. 37:1203 Assembly approve appointments to the Council of Ministers; 80 the creation of a Southern Sudan Anti-Corruption Commission; 81 and a chapter outlining the mission and duties of the Sudan People s Liberation Army. 82 Importantly, in part 11, the ICSS expands on the powers and functions of the governments of the southern states, 83 and includes sections on the structure and functions of the local government system in Southern Sudan as well as the role of traditional authority and customary law. 84 Generally these departures from the INC enhance the constitutional order and strengthen the position of women. There is one way in which a failure to depart from the INC is worrying. In varying ways the ICSS, like the INC, gives the relevant head of the executive an inappropriate level of authority over the courts. For instance, adopting the language of the INC, the ICSS states that the president of the Supreme Court of Southern Sudan is answerable to the [p]resident of the Government of Southern Sudan for the administration of the [j]udiciary. 85 A broad reading of administration may render this incompatible with the requirement in the CPA of an independent judiciary. The ICSS provision relating to state high courts is even more problematic. It extends the approach of the INC and states, The most senior judge... shall be answerable to the [g]overnor of the state for the performance and administration of the [s]tate [j]udiciary. 86 Any involvement of the executive with the management of the judiciary is unfortunate, and the suggestion that the executive might have some role in assessing the performance of the judiciary threatens its independence Id. pt. 6, ch. IV, 112(1), 117(2). 81. Id. pt. 9, ch. III, 147. Section 168 of the INC requires the GoSS to establish certain commissions and permits it to establish others. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 11, ch. II, 168 (2005). 82. INTERIM CONST. OF SOUTHERN SUDAN pt. 10, ch. II, (2005). 83. For example, the ICSS: adds extra details regarding the position of the State Deputy Governor; sets out the basic structure of the state judiciary; provides for the applicability of the minimum 25% quota for women at the state level in legislative and executive organs and for the substantial representation for women in the state judiciary; and includes interim provisions for the appointment of state judges and public attorneys for the first four years of the interim period. Id. pt. 11, ch. I, Id. at part 11, ch. II, arts (local government, traditional authority and customary law, role of traditional authorities). 85. Id. pt. 7, 126(8). 86. Id. pt. 7, 132(2) (emphasis added). 87. The insistence on an independent judiciary in the CPA, INC, and ICSS itself should lead a court to interpret these provisions very narrowly. However, their inclusion in the constitution is unfortunate as they signal the wrong relationship between the courts and the executive, and the process of reaching an understanding of their meaning that is compatible

17 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1219 Finally, one feature of the ICSS distinguishes it from most, and perhaps all other subnational constitutions. This is the idea, hidden in the Interim and Miscellaneous Provisions, that the ICSS may in the future become the national constitution of a newly independent Southern Sudan. 88 Section 208 of the ICSS states that it will remain in force as the Constitution of a sovereign and independent Southern Sudan [i]f the outcome of the referendum on self-determination favours secession. 89 IV. THE STATE CONSTITUTIONS IN SUDAN A. The Northern and Transitional States The final stage of the constitutional development process in Sudan for the interim period is the adoption of individual state constitutions. While this Article focuses on the development of the constitutions in Southern Sudan, it is worth noting that a parallel process has been occurring in the north. The northern states, unlike the southern states that had to wait for the ICSS to be adopted before they could begin, started their constitutional drafting process in mid In late 2005, a model constitution, drafted by a sub-committee of the National Constitutional Review Commission, was released for use by the northern states. 90 In early 2006, it was reported that all but three of the northern states had adopted their constitutions. 91 with the independence of the judiciary is likely to bedevil the relationship between the executive and the courts. 88. See id. pt. 15, 208(6). 89. Id. pt. 15, 208(7). Without, of course, the provisions that currently refer to national institutions. Other provisions in the ICSS also set the stage for this occurrence by providing for a system under which the southern states will have contact with the national government only through the GoSS. See, e.g., id. pt. 3, ch. III, 52(1)(a); pt. 4, 56(1)(f); pt. 6, ch. IV, 115(h)-(i); pt. 11, ch. I, 167(3). 90. It is not clear exactly who was on the sub-committee that drafted the model, or whether the membership of that sub-committee complied with the requirements for membership of the commission as a whole, as set out in the Implementation Modalities. It is also not clear how decisions were taken within the sub-committee, and if the method of decision-making complied with the requirements under the Protocol on Power Sharing (that decisions should be taken by consensus or by a two-thirds majority vote). Several northern states had already completed and submitted their constitutions to the national Ministry of Justice before the model was released. Those constitutions were rejected by the ministry and the relevant states were required to review the model and to consider making amendments to their constitutions based on the model. 91. See Peace: The Presidency of the Republic Implementation of the CPA in the Year 2005, SUDAN VISION DAILY, Feb. 16, 2006,

18 1220 RUTGERS LAW JOURNAL [Vol. 37:1203 In the north, the most controversial process was in Khartoum State, the location of the national capital. The state constitution there was adopted in May 2006, after several months of tense discussions and disputes, mostly relating to issues in which the SPLM has a keen interest, such as the protection of the rights of non-muslims and human rights more generally in the capital. 92 Meanwhile, the state constitutional development process has led to controversy in two states in central Sudan Blue Nile and Southern Kordofan. These strategically placed and highly disputed areas 93 are given a unique status under the CPA, forming the subject of their own protocol. 94 Under the protocol, pre-election power sharing arrangements favour the dominant northern party, the NCP, which holds 55% of legislative and executive power, compared to the SPLM s 45%. 95 Significantly, the protocol gives residents of the states the democratic right of [p]opular consultation. 96 This ambiguous wording refers to an undefined process to be conducted on behalf of the people by their elected legislatures, to determine whether the CPA will constitute the final settlement of the conflict in the two states, or whether negotiations should be re-opened with the national government. 97 The constitutional drafting process differed greatly in the two states. In Blue Nile, a draft was quickly adopted by the NCP and the SPLM, and approved by the national Ministry of Justice in November Blue Nile s resulting state constitution conforms closely to the model constitution for the northern states. Core issues are addressed favourably from the NCP s point name=news&file=article&sid=10835 (last visited Oct. 25, 2006). Note that since February 16, 2006, one of those three states, Khartoum State, has adopted its constitution. 92. Approximately two million internally displaced Southern Sudanese live in and around Khartoum. 93. The two states are not considered part of Southern Sudan, despite SPLM efforts during the CPA negotiations. However, many of the states residents are politically aligned with the SPLM, and do not consider the areas as belonging in the north. 94. See generally Protocol on the Resolution of Conflict in Southern Kordofan/Nuba Mountains and Blue Nile States, Sudan-SPLM, May 26, 2004, available at /serviceengine/filecontent?serviceid=pria&fileid=ffc3ad16-b013-c2b7-934d- 2B2F880BF5A4&lng=en [hereinafter Southern Kordofan Protocol]. 95. Compare this to the southern states, where the SPLM holds 70% of executive and legislative positions, and the NCP holds just 10%. The remaining 20% is allocated to other southern political parties. 96. Southern Kordofan Protocol, supra note 94, Id The provisions of the Protocol regarding the procedures and timeframes for conducting the popular consultation process are vague, and no process is set up for resolving a dispute between the national government and the state, should one arise.

19 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1221 of view, while many SPLM priorities are either not mentioned or are inadequately addressed. For example, there is no state bill of rights, Islamic Shari a is included as a source of legislation, and controversial land use and ownership issues are barely addressed. It has been suggested that the SPLM consented to adopt such a constitution because the NCP agreed that all outstanding issues would be addressed through state legislation instead. However, by June 2006, some seven months after the constitution was adopted, the state legislature (controlled by the NCP) had not considered nor adopted any legislation. By this time, public disputes had started to erupt, fuelled by frustration at the lack of progress and the failure of state politicians to implement the CPA in any real sense. 98 In contrast, at the time of writing this Article, the constitutional drafting process in Southern Kordofan was dragging on, many months after it began. A draft was negotiated by a committee comprising representatives of the NCP, SPLM, and other state political parties in late That draft, although more balanced than the final version in Blue Nile, is still heavily in favour of NCP policies on issues such as Shari a law and land rights. The SPLM team in Southern Kordofan did win one significant victory, with the inclusion of a strong state bill of rights. However, final agreement has been stalled for months due to a dispute over one issue which party should control the position of the speaker of the state legislature. 99 This dispute is part of a much larger struggle between the two parties over key leadership positions in the state, and reflects discontent over the power sharing arrangements agreed on as part of the CPA settlement. It also raises the perennial question of whether it is appropriate to attempt to transform politically-charged negotiations into a constitutional drafting process. 98. The Governor of Blue Nile State, Abdel Rahman Abo Midyan (NCP), has allegedly made a series of provocative statements over the past few months, reflecting his refusal to implement certain provisions of the CPA. On 20 May 2006, he was attacked by stonethrowers at a public rally in Damazine, Blue Nile after making several strong statements about Blue Nile State belonging in the north of Sudan. U.N. Sudan Situation Report 1 (May 21, 2005), available at This incident led to the appointment, by the Governor, of a joint committee to consider the implementation of the CPA in the state and the differences between the SPLM and the NCP. See U.N. Sudan Situation Report (May 29, 2006), available at The NCP wants full control of this position and the SPLM wants it to rotate so that each of the two parties controls the position for 50% of the time.

20 1222 RUTGERS LAW JOURNAL [Vol. 37:1203 B. The Southern States The process of drafting the state constitutions in Southern Sudan has been relatively uncontroversial as, under the CPA, the SPLM has a substantial majority (70%) in the state legislatures and can therefore control the outcomes to a large extent. There have been several distinct steps in the process. First, in December 2005 and January 2006, a fourteen-member committee in Southern Sudan 100 drafted the Model Interim Constitution of Southern Sudan States ( the Model ). The structure and content of the Model conformed very closely to the ICSS. Sections that were irrelevant to the states were omitted, 101 and some extra details were added. For example, the Model expanded on the structure of the state court system, 102 included provisions regarding the role of County Commissioners, and provided for various state level bodies not included in the ICSS. 103 But, besides these few changes, there were no substantial deviations from the ICSS. The strongly worded provisions concerning decentralisation and devolution found in the INC 104 and the ICSS 105 were repeated in the 100. The National Constitutional Review Commission should have drafted a model constitution for use by the southern states. See Protocol on Power Sharing, supra note 14, pt. II, This was not done and it appears that an agreement was reached between the NCP and the SPLM that the Southern Sudan Ministry of Legal Affairs and Constitutional Development would take charge of the process and oversee the drafting of the model and the development of the southern state constitutions E.g., INTERIM CONST. OF SOUTHERN SUDAN pt. 1, ch. II, 10-12; pt. 10, ch. I, ; pt. 10, ch. II, (2005) The ICSS provides that the state judiciary will consist of high courts, county courts, and any other courts and tribunals as determined by law. Id. pt. 11, ch. I, 171. The model state constitution expanded on this, adding Payam Courts For example, the model provided for the establishment of a State Employees Justice Chamber, a State Public Grievances Chamber, a State Human Rights Office, and several other state level institutions that had not been foreseen in the CPA, the INC, or the ICSS. The model also provided for the establishment of various state level bodies that were included in the CPA, the INC, or the ICSS. These included: a state Demobilization, Disarmament and Reintegration Commission (as provided for in Agreement on Ceasefire, supra note 13, pt. 3, ); a state Civil Service Office (as envisaged in INTERIM CONST. OF SOUTHERN SUDAN pt. 9, ch. I, 144(g) (2005)); a state police service (as provided for in INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 9, ch. II, 148(2)(c) (2005)); state prisons and wildlife services (as provided for in id. 149); a state level security committee (as provided for in id. pt. 9, ch. III, 150(3)); and a state fire brigade service (as provided for in INTERIM CONST. OF SOUTHERN SUDAN pt. 10, ch. III, 165(2) (2005)) INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 1, ch. IV, (2005) INTERIM CONST. OF SOUTHERN SUDAN pt. 3, ch. III, (2005).

21 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1223 Model, 106 so that, just as the national and Southern Sudan governments have an obligation to devolve power to the states wherever possible, the states themselves have an obligation to devolve power to local governments. This obligation was made explicit in the Model in a stipulation that the state government should devolve appropriate powers to local government and respect the powers devolved to the local government. 107 The second step in the process began when the Model was presented at the Southern Sudan States Constitutional Development Conference, held in Rumbek from 10 to 18 February The conference was attended by drafting committees from the ten southern states. 108 For many participants, the conference was their first opportunity to access copies of the CPA, the INC, or the ICSS. The conference accordingly served two purposes: it both introduced the details of the CPA and the interim national and Southern Sudan constitutions; and it provided an opportunity to discuss the future state constitutions. The task set for the nine-day conference was a huge one. Although a few participants had held senior government posts in the past, many had limited formal education and some confessed that, before the conference began, they were not even sure what a constitution was. 109 Participants had to digest hundreds of pages of documents and each state delegation had to reach agreement on a version of the Model to present to their state governor for discussion and adoption in the state legislature. The conference took place in conditions starkly different from those to which constitution drafters in the West are accustomed. Ravaged by two long civil wars, which exacerbated the effects of decades of underdevelopment under colonial rule and successive northern governments, conditions in Southern Sudan are extremely challenging. Travel is difficult, with few roads, vehicles or flights; accommodation is basic and in scarce supply. Facilities that may seem essential to modern constitution-making, such as 106. MODEL INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 3, ch. III, (2006) Id. 49(2)(b)-(c) (based on INTERIM CONST. OF SOUTHERN SUDAN pt. 3, ch. III, 51(2) (2005)) State drafting committees comprised between five and ten delegates each, appointed by the state governors. The purpose of the conference was to facilitate the development of the individual state constitutions through a discussion of the model state constitution The drafters of the state constitutions worked under vast constraints. Many had little access to education during the war, some had difficulty reading and writing in English, and most had no previous experience dealing with legal matters and had not seen the CPA, the INC, or the ICSS before attending the conference.

22 1224 RUTGERS LAW JOURNAL [Vol. 37:1203 computers and photocopiers, are rare. There is also virtually no access to information about comparative experience and other constitutional models. The responsibility that participants bore was also huge. At the end of the conference they had to return to their home states, where there are far fewer resources than in Rumbek, 110 to convey the proposals discussed to their governor and legislature. But the conference offered the drafting teams a rare opportunity to become familiar with the terms of the CPA and to draw on the expertise of people who had been involved in its negotiation and who had an understanding of constitutions. During the conference, discussions focused on reaching an agreement on a version of the Model with which most participants were satisfied. There was substantial agreement on most of the provisions, but animated debate took place regarding women s rights, the relationship of the executive to the legislature, the method of appointing judges, and the number and status of various state level institutions and commissions. The women s rights provisions in the Model were taken directly from the ICSS, which had expanded on the national bill of rights by adding property ownership and inheritance rights for women, as well as a minimum 25% quota for women in executive and legislative organs in Southern Sudan. 111 Despite the fact that these rights were already protected in the ICSS, some male participants voiced loud objections, in particular with regard to granting women freedom of movement and residence, 112 and property ownership and inheritance rights. 113 Those objecting felt that these provisions clashed with existing cultural norms and traditional practices. Concerns were also raised about the duty placed on state governments to enact laws to combat harmful customs and traditions, which undermine the dignity and status of women. 114 Several male participants expressed the view that there were no 110. For example, most state drafting committees and state legislatures have little or no access to a reliable source of power. Most people still live in traditional mud huts with no access to running water or sanitation systems See INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 20 (2005) At least one male delegate was concerned that if women were granted freedom of movement, one or more of his wives might leave him. Another voiced similar concerns that if women were granted equal rights with men, then his wife might decide to seek full-time employment, in which case he would be left without anyone to care for his children Several male participants opposed the granting of property ownership or inheritance rights to women, on the grounds that it would cause problems amongst multiple wives See MODEL INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 2, 19(4)(b) (2006) (based on INTERIM CONST. OF SOUTHERN SUDAN pt. 2, 20(4)(b) (2005)).

23 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1225 customs or traditions that were harmful to women or that would undermine their dignity. 115 The small number of female participants at the conference 116 engaged their male counterparts in active discussions about these issues. The group was reminded that, in developing the state constitutions, they were bound to conform to the rights included in the INC and the ICSS. The conference chair acknowledged that it would be difficult to reconcile new legal protections for women s rights with current traditional practices. However, he urged participants to view the constitution not as a means for protecting existing power structures or practices, but as a tool for social change and progression towards complying with international standards. 117 The outcome was that all of the women s rights provisions from the ICSS were included in the Model, and one provision was expanded to include expressly the right of women to be protected from all forms of violence including gender-based violence. 118 Of course, whether the women s rights provisions (and those regarding more general human rights) will actually be implemented is another matter. Many women in Southern Sudan are unlikely ever to see a copy of their state constitution, let alone read or understand the rights contained in it. And while both the ICSS and the Model require the courts to subject customary law to the provisions of the constitution (including the bill of rights), access to the courts is limited and judges are likely to be reluctant, at least initially, to apply or enforce new women s rights provisions in the face of local pressure to conform to custom instead In response to this, several female participants mentioned the example of female genital mutilation There were eleven female participants out of approximately ninety. The failure of the state governors (who composed the drafting teams) to comply with the SPLM policy of at least 25% representation for women was commented on by the opening speaker at the conference, Awut Deng, Presidential Advisor on Gender and Human Rights This approach is in line with the Protocol on Power Sharing, supra note 14, pt. I, 1.6.1, which requires all levels of government in Sudan to comply fully with [the country s] obligations under the international human rights treaties to which it is or becomes a party The precise wording agreed on at the conference was: Women shall have the right to be protected from all forms of violence including gender-based violence such as domestic violence, rape, sexual harassment, abuse and exploitation. DRAFT INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 2, 19(6) (rev. Feb. 17, 2006) See generally, e.g., Martha C. Nussbaum, India, Sex Equality, and Constitutional Law, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE 174 (Beverley Baines & Ruth Rubio-Marin eds., 2005); Hilal Elver, Gender Equality from a Constitutional Perspective: The Case of Turkey, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, supra, at 278.

24 1226 RUTGERS LAW JOURNAL [Vol. 37:1203 The most controversial issue at the conference was the relationship between the state executive and legislature. The question was, crisply, whether members of the State Council of Ministers should be permitted to serve in the State Assembly. Of course, joint membership is unusual in presidential systems, but in systems that have had experience of the Westminster-based parliamentary model of government, some fusion between the executive and the legislature is much more common. 120 The Model, like its parent the ICSS (and to a lesser extent, the INC), established a presidential system with strong traces of Sudan s parliamentary heritage. 121 Both the INC and the ICSS allow ministers to serve in the legislature. 122 The Model followed suit and permitted ministers to be members of the State Assembly. 123 Participants at the conference were divided on this issue. Many objected to the possibility of one person holding two jobs, arguing that this would result in fewer positions being available for up-and-coming leaders. Others 120. Lia Nijzink et al., Parliaments and the Enhancement of Democracy on the African Continent: An Analysis of Institutional Capacity and Public Perceptions, 12 J. LEGIS. STUD. 311, (2006) The INC provides for a directly elected president subject to impeachment in a process conducted by the national legislature and Constitutional Court. See INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 3, ch. II, 60 (2005). The president appoints the National Council of Ministers. Id. pt. 3, ch. IV, 70. Ministers are answerable and responsible to the president, the National Council of Ministers, and the National Assembly. Id. 74. The heading to section 74 uses the language of parliamentary systems: Collective and Individual Responsibility of National Ministers. In addition, the Protocol on Power Sharing, supra note 14, pt. II, , stipulates that the National Assembly may remove ministers by a two-thirds majority. This provision has not been repeated in the INC, but is nonetheless binding. The Southern Sudan system introduces a number of provisions that tie the legislature and the executive together. For instance, although the president of Southern Sudan appoints the Southern Sudan Council of Ministers, its membership must be approved by the Southern Sudan Legislative Assembly. See INTERIM CONST. OF SOUTHERN SUDAN pt. 6, ch. IV, 112(1), 117 (2005). Southern Sudan Ministers can be removed by the Legislature with a two-thirds majority. Id. pt. 6, ch. IV, 120. For similar provisions in the model state constitution, see MODEL INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 6, ch. IV, 110(1), 115(2), 118(1) (2006) The INC stipulates eligibility for membership of the National Legislature, which consists of the National Assembly and the Council of States. INTERIM NATIONAL CONST. OF THE REPUBLIC OF SUDAN pt. 4, ch. I, 83(1), 86 (2005). It excludes those who serve in the Southern Sudan or state executives and legislatures, and holds that members of the National Council of Ministers may not be members of the Council of States, but it allows joint membership of the Council of Ministers and the National Assembly. Id. 86(1); see also INTERIM CONST. OF SOUTHERN SUDAN pt. 5, ch. I, 61; pt. 6, ch. IV, 113(5) (2005) See MODEL INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 5, ch. I, 56(2) (2006).

25 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1227 felt that allowing joint membership undermined the separation of powers, and expressed concern at the weakened accountability that would result if membership of the two bodies overlapped. However, some participants who were more familiar with the Westminster system of government argued that there was no reason to exclude ministers from membership of the legislature. Variation from the ICSS was not encouraged and, in the end, the final version of the Model was left as initially drafted, allowing joint membership. The most significant amendment to the Model concerned the method of appointing state judges and magistrates. The initial draft proposed a simple approach, whereby the governor would appoint state judges and magistrates subject to approval by two-thirds of the State Assembly. Conference participants objected to this, expressing distrust in the ability of the governor to appoint appropriate and well-qualified candidates and highlighting the need to ensure the independence of the judiciary. Several other options were considered and rejected, including allowing the governor to make appointments on the recommendation of the president of the state high court. 124 After a lengthy debate concerning issues at the very heart of conceptions of constitutionalism and limited government, the Model was revised to provide for a three-member Judicial Service Committee, which would make binding recommendations to the governor on the appointment of all state judges and magistrates. 125 The presence on the committee of a judge, the member of the executive responsible for legal affairs in the state, and a member of the legal profession satisfied the need to have judges chosen by a 124. The objection to this proposal was simply that the president of the high court would have been appointed by the governor and so would not be independent in his or her choice of judges Section 131 of the Model was revised to read, in pertinent part: (1) The Governor shall establish a State Judicial Service Committee consisting of: (a) the President of the High Court, subject to sub-article (2); (b) the member of the Council of Ministers responsible for legal affairs; and (c) a member of the legal profession appointed by the organised legal profession. (2) When the State Judicial Service Committee meets to fill a vacancy in the office of the President of the High Court, the Deputy President of the High Court or a State Judge nominated by the Deputy President shall take the position of the President on the Committee. (3) The Governor shall appoint the President and Deputy President and other Judges of the High Court, other Judges and Magistrates on the recommendation of the State Judicial Service Committee. DRAFT INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 7, 131 (rev. Feb. 17, 2006).

26 1228 RUTGERS LAW JOURNAL [Vol. 37:1203 body that is not part of the executive. It also recognised that it is appropriate to give the executive some voice in the appointment process. Interestingly, despite the concern that the governor should have no say in the appointment of judges, conference participants did not challenge the inclusion in the Model of the ICSS provision stipulating that the head of the high court is answerable to the [g]overnor of the state for the performance and administration of the [s]tate [j]udiciary. 126 From the perspective of a Western constitutional lawyer, perhaps the most unexpected area of debate at the conference concerned the number of specialised state level institutions provided for in the model state constitution. The original draft of the Model provided for the establishment of numerous state level offices and commissions, many of which had not been foreseen in the CPA, the INC, or the ICSS. They included a state civil service office, a state employees justice chamber, a state anti-corruption office, a state human rights office, and a number of state law enforcement agencies. The conference facilitators suggested omitting some of these bodies in an effort to limit duplication with already existing bodies at the Southern Sudan level and to reduce stress on limited state resources. But many participants opposed this idea, favouring retention of all of these provisions. Some wanted to provide for even more state level commissions (for example, a state land commission to mirror the National and Southern Sudan Land Commissions). 127 Eventually a reluctant compromise was reached to soften the language in the relevant provisions to permit, but not require, the establishment of these state-level bodies. 128 Other significant amendments made to the Model during the conference extended the application of the bill of rights to all juristic persons, See INTERIM CONST. OF SOUTHERN SUDAN pt. 7, 132(2) (2005). If this provision of the ICSS is incompatible with the CPA and the INC for undermining the independence of the judiciary, the state constitutions should not include it. By June 2006, it appeared that at least one state, Northern Bahr el Ghazal, intended to delete it The desire for so many specialised commissions and institutions at the state level might reflect a level of mistrust of state level politicians and government bodies. Alternatively, it might simply reveal a desire for more paid professional positions in the state This essentially involved changing the phrase shall be established to may be established Using language drawn from the South African Constitution, the Model was amended to read: The rights and freedoms of individuals and groups enshrined in this Bill shall be respected, upheld and promoted by: (a) all organs and agencies of the Government of the State; and

27 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1229 expanded on the fair trial provisions, and restricted the power of the governor to summon or adjourn the State Assembly by requiring the agreement of the speaker. Once the state drafting committees had collectively agreed on a final version of the Model, each committee considered that version and made amendments that they believed were important for their individual state. 130 Most of these amendments were minor, but some of the state committees made slightly more substantive changes. The most significant of these were made by Upper Nile, Unity State, and Jonglei, each of which added a new section providing for a state level environmental agency. 131 The third major step in the state constitutional development process began when the ten drafting committees returned home to present the draft constitution developed in Rumbek to their respective governors, who then presented it to the respective Councils of Ministers and State Assemblies. Each State Assembly then reviewed and amended the draft and adopted a final version. 132 It is not clear to what extent the assemblies complied with the legislative procedure for considering and amending the drafts, how much debate there was, or whether contributions were sought or allowed from members of the public and civil society groups. 133 The fourth major step in the process is currently unfolding. The state constitutions adopted by the State Assemblies have been submitted to the Southern Sudan Ministry of Legal Affairs and Constitutional Development, (b) all natural and juristic persons, if, and to the extent that, the rights are applicable, taking into account the nature of the right and the nature of any duty imposed by the right. DRAFT INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 2, 11(2) (rev. Feb. 17, 2006) For many of the committees this was restricted to inserting the appropriate state name and identifying the state capital In each instance, the main function of the agency is to assess the environmental impacts of petroleum development in the state Section 84 of the ICSS set out the procedure for consideration of bills, which was to be used by the State Assemblies when considering the draft constitutions. INTERIM CONST. OF SOUTHERN SUDAN pt. 5, ch. I, 84 (2005) Apparently a large public meeting was held in Unity State prior to the adoption of the constitution by the State Assembly. People were invited to attend the Assembly s meetings on the constitution in Eastern Equatoria State. However, it is unclear whether the public had any real opportunity to make submissions about the content of the draft constitutions in either state.

28 1230 RUTGERS LAW JOURNAL [Vol. 37:1203 which is reviewing them for compatibility with the ICSS before submitting them to the national Ministry of Justice for certification. 134 The most interesting question for observers of this part of the process is whether the State Assemblies approved the drafts prepared at the Rumbek conference, or whether they changed them in any substantive way. In other words, have the states made the constitutions their own or have they been content to accept the model provided for them? Predictably, some assemblies made changes while others did not; but in all, few major changes were made. In those constitutions that deviate from the Rumbek model we see a continuation of some of the Rumbek debates. The Bahr el Jebel Constitution contains some interesting changes. For instance, it removes the possibility of combining membership of the State Assembly with membership of the State Council of Ministers. 135 The application provision is also reworded. In the Model, this provision states that the constitution shall have binding force on all organs and agencies of government and persons throughout the State. 136 The Bahr el Jebel draft includes non-governmental organisations. 137 It also identifies an additional official working language (Bari); 138 creates a State Auditor General; 139 and makes the eligibility requirements for the State Governor stricter by adding a minimum education requirement. 140 In addition, the procedure for amendment of the state constitution has been changed, in order to require any fundamental amendment to be approved by a two-thirds majority at a public referendum Although this step is not required by the CPA or the INC, it is in line with the general requirement that the GoSS will serve as the link between the southern states and the national government FINAL DRAFT INTERIM CONST. OF BAHR EL JEBEL STATE pt. 5, ch. I, 59(2) (2006) MODEL INTERIM CONST. OF SOUTHERN SUDAN STATES pt. 1, ch. I, 3(1) (2006) FINAL DRAFT INTERIM CONST. OF BAHR EL JEBEL STATE pt. 1, ch. I, 3(1) (2006). The inclusion of non-governmental organisations is confusing. Usually a non-governmental organisation (or NGO ) is an organisation doing work in the public interest. If this is what was intended, its inclusion has the possible effect of narrowing the meaning of the word persons to natural persons only, thus excluding corporations from the operation of the constitution. As originally worded, the provision is likely to have covered both natural and juristic persons, and thus also NGOs Id. 6(5) Id. pt. 12, ch. VI, 166(3) Id. pt. 6, ch. II, Id. pt. 15, 175(2). The appropriateness of this is questionable, given that the state constitution is intended to be an interim one, and that it has been drafted by an unelected State Assembly with no public participation. Moreover, the definition of a fundamental

29 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1231 Other changes made by State Assemblies include the addition by several states of extra responsibilities for the state government, such as ensuring a sufficient food supply for the people of the state and the protection of the state environment. And, perhaps predictably, most of the states have reverted to the language used in the earlier draft of the Model, which made it compulsory to establish various specialised institutions at the state level. Some of the changes that have been made by the states are likely to be assessed as being incompatible with the ICSS. Comments to that effect will be sent by the Southern Sudan Ministry back to the relevant State Assemblies so that they can consider making amendments before the constitution is submitted to the national Ministry of Justice. For example, one state has attempted to increase the number of members in the State Assembly beyond the limit stipulated in the CPA. 142 Another has changed the venue of various constitutional proceedings from the Supreme Court of Southern Sudan to the State High Court. 143 One state has even tried to change the power sharing arrangements that were agreed on in the CPA. 144 Changes such as these, made by the State Assemblies after the Rumbek conference, are concerning because they reveal a lack of capacity at the state level to understand and comply with the provisions of the CPA and the national and Southern Sudan constitutions. This also raises questions about the appropriateness of using a lengthy and detailed model as the basis for the state constitutions. It is debatable whether the state governments will fully understand or have the capacity to implement many of the more complex provisions of their own constitutions. amendment will not be easy as cases following the Indian decision in Kesavananda Bharati Sripadagalvaru v. State of Kerala, A.I.R S.C (India), have demonstrated Implementation Modalities, supra note 13, activity no. 55(b) (stating that the southern state legislatures should have between thirty and forty-eight members) The state has changed the venue for impeachment proceedings for the State Governor as well as the venue for contesting acts of the State Governor, a State Minister or the Council of Ministers. This could be considered as incompatible with section 130 of the ICSS, which gives the Supreme Court of Southern Sudan original jurisdiction to decide on disputes arising under the state constitutions. It would also be unwise from a practical point of view, as appeals from the State High Court can be heard by the Courts of Appeal and the Supreme Court of Southern Sudan. This could result in a prolonged appeals process, which could be destabilising for the state government The Protocol on Power Sharing states that, pending elections, membership of the state executive and legislature in the southern states will be allocated according to the following percentages: 70% to the SPLM; 20% to other southern political forces; and 10% to the NCP. Protocol on Power Sharing, supra note 14, pt. IV, One of the southern states amended its draft constitution in order to attempt to allocate the NCP s 10% share to the SPLM instead.

30 1232 RUTGERS LAW JOURNAL [Vol. 37:1203 The final steps in the constitutional development process for each state will take place once the Southern Sudan Ministry for Legal Affairs is confident that the state constitution is compatible with the ICSS. Each state constitution will then be submitted to the national Ministry of Justice for certification, after which it will be signed into law by the State Governor. 145 V. CONCLUSION What is the future of these constitutions? Both the Southern Sudan and state constitutions have been adopted by legislatures that are appointed, not elected. Citizens have had very little involvement indeed, the conditions in Southern Sudan make that difficult. Moreover, the content of the constitutions was largely pre-determined by the CPA. In addition, politicians in the south are focused on implementation of the peace agreement. Public participation is necessarily a lower priority. And, in the case of the state constitutions, the model that they follow is complex, and not necessarily ideal for the small governments of the under-resourced Southern Sudan states. Like other constitutions, a subnational constitution should create an institutional framework that will both enhance democracy and human rights and facilitate effective governance. It is usually agreed that, to do this effectively, a constitution must be sensitive to the conditions in which it is to apply and must command the support of both ordinary citizens and the political elite. The circumstances under which the new constitutions of Southern Sudan have been drafted mean that they face particularly difficult challenges in achieving these goals. In particular, even if the peace holds, there is a danger that some of the state governments will be overwhelmed by the ambitious demands of their new constitution and that, as a result, governments will be guided not by the constitution, but by old practices. But, if there is a serious attempt to govern under these constitutions and even modest success in doing so, when the time comes to move from interim structures of government and to permanent constitutions, the Southern Sudanese will not be starting from scratch, but will be building on the current process. The ICSS and the state constitutions that are based on it capture the central features of constitutionalism. They protect rights, implement a 145. A finding by the national Ministry of Justice that a state constitution is incompatible with the ICSS, the INC, or the CPA can be challenged in the National Constitutional Court. Alternatively, if the claim is not challenged, the constitution will be returned to the relevant State Assembly for amendment.

31 2006] SUBNATIONAL CONSTITUTION-MAKING IN SUDAN 1233 separation of powers, and establish procedures for the appointment of an independent judiciary. Moreover, the very process of drafting a constitution, determining structures of government, and crafting a bill of rights has already contributed in a small way to the development of democracy in Southern Sudan. The Rumbek conference provided an important opportunity for more than ninety state delegates to engage in intense discussions concerning limited government, human rights, and reconstruction of the state. A similar process occurred in some of the state legislatures. The process itself was one however modest of education in constitutionalism and democracy. ADDENDUM Since this Article was completed in June 2006, the state constitutional development process in Southern Sudan has almost reached completion. By August 2006, all ten southern states had submitted their constitutions to the Southern Sudan Ministry of Legal Affairs and Constitutional Development, which reviewed them for compatibility with the ICSS. As anticipated, some of the changes made by the state assemblies were assessed by the Ministry to be incompatible with the ICSS. Comments to that effect were transmitted back to the relevant assemblies, which then decided on appropriate amendments. 146 Unfortunately, the final step in the process certification by the national Ministry of Justice is currently proving elusive. In September, the Southern Sudan Ministry submitted six of the state constitutions to the national Ministry. However, the national Ministry refused to certify them as being compatible with the INC and the CPA, citing various inconsistencies with those documents. 147 Many of the objections focused on provisions of the 146. During this process, concerns were expressed in at least one of the southern states that amendments to the constitution were allegedly agreed on by a small committee, rather than by the State Assembly as a whole While some of the Ministry s objections might reflect legitimate concerns regarding apparent inconsistencies between the state constitutions and the INC or the CPA, many of their objections are not valid in that the relevant text included in the state constitutions is not incompatible with either the INC or the CPA. The Ministry appears to be taking an overly formal approach to the certification process, essentially claiming that matters dealt with in the INC or CPA should not be dealt with in the state constitutions; whereas the mandate of the Ministry should be confined to objecting to any specific incompatibilities. According to some reports, the national Ministry has recently agreed to issue a certificate of compatibility for one of the southern state constitutions that of Eastern Equatoria. According

32 1234 RUTGERS LAW JOURNAL [Vol. 37:1203 state constitutions referring to state boundaries and capitals 148 and provisions regarding the referendum on self-determination. 149 After attempts to resolve the matter through discussions with the national Ministry failed, the Southern Sudan Minister for Legal Affairs decided to issue certificates stating that the southern state constitutions are compatible with the ICSS. 150 Based on this certification, it is expected that the governors of the southern states will sign the constitutions into force and the state governments will begin operating under them. It is questionable whether the issuance of certificates by the Southern Sudan Ministry, rather than the national Ministry, would satisfy the requirements under the CPA for the state constitutions to come into legal force. This matter could be raised by the national Ministry in the constitutional court in Khartoum. Alternatively, the decision of the national Ministry to refuse to certify the state constitutions could be challenged by the Government of Southern Sudan and the state governments in the constitutional court. to a source in Juba, the capital of Southern Sudan, the State Assembly in Eastern Equatoria made several changes to provisions to which the national Ministry had objected The national Ministry asserts that these matters lie within the jurisdiction of the national government and may not be included in a state constitution These provisions in the state constitutions essentially repeat the provisions of the ICSS regarding the referendum on self-determination that will be held in Southern Sudan The logic implicit in the issuance of these certificates is that, because the ICSS has already been certified as being compatible with the INC and the CPA, if the state constitutions are compatible with the ICSS, they must therefore also be compatible with the INC and the CPA.