Rethinking South Sudan’s Constitution: An Analytical Reflection on the Ongoing Constitution-Making Process in South Sudan

By Isaiah Chol-Amot Aruai Ajang, Juba, South Sudan

Wednesday, 12 November 2025 (PW) — Since the signing of the Comprehensive Peace Agreement (CPA) in 2005, South Sudan has undergone several constitutional experiments, each promising a permanent foundation for democratic governance, yet none yielding lasting results. The Transitional Constitution of the Republic of South Sudan (TCRSS, 2011), adopted at independence, was conceived as an interim framework to guide the country through its first years of sovereignty while a permanent constitution was being drafted. Nearly fourteen years later, that process remains incomplete, complicated by conflict, elite political capture, and institutional fragility. The Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS, 2018) renewed this constitutional agenda, embedding it within the broader peace and governance reforms, yet the same structural dilemmas that plagued earlier efforts continue to impede progress.

The constitution-making enterprise in South Sudan must be understood not only as a legal process but also as a political and historical moment. It is a forum in which collective memory, identity, and power relations converge. It embodies a national dialogue over how the people of South Sudan wish to govern themselves, distribute authority, and define justice. As someone who has observed and participated in public service during this turbulent journey, I offer here analytical reflections on several critical areas that require careful constitutional reconsideration. These include the separation of powers, the structure of the legislature, the limitation of executive authority, educational qualifications for the presidency, and the institutional relationship between law enforcement and prosecution. Each issue, though technical in nature, touches on the moral and political foundations of the state.

Separation of Powers and the Problem of Institutional Overlap

One of the enduring challenges of governance in South Sudan is the weak institutionalisation of the separation of powers. The TCRSS formally recognises the executive, legislature, and judiciary as independent branches of government (TCRSS, 2011, Arts. 54–55). In practice, however, this principle has been undermined by the simultaneous appointment of Members of Parliament as cabinet ministers, a political habit that conflates the oversight and executive functions of government. This duality not only erodes legislative independence but also entrenches a culture of political patronage in which loyalty to the presidency overrides accountability to the electorate.

In classical constitutional design, particularly in presidential systems, the legislature and executive are designed to operate as co-equal and independent branches, each serving as a check upon the other. The United States Constitution, for instance, bars legislators from holding executive office (U.S. Const. Art. I, Sec. 6), a principle that protects the separation of powers and prevents conflicts of interest. Similarly, the Constitution of Nigeria (1999, as amended) disqualifies legislators who accept executive appointments from continuing to serve in the National Assembly. These comparative experiences underscore a central truth that effective governance demands institutional boundaries that prevent the fusion of political and administrative authority.

In South Sudan, the blurring of these lines has weakened oversight and facilitated executive dominance over the legislature. To restore balance, the new constitution should explicitly prohibit Members of Parliament from holding executive office. Such a provision would foster professionalism, enhance checks and balances, and preserve the autonomy of both the legislature and the cabinet. It would also elevate parliamentary debate from political ritual to substantive oversight, an essential precondition for constitutional democracy.

The Case for a Bicameral Legislature

South Sudan’s diversity (ethnic, linguistic, and regional) necessitates a representative structure that reflects both population size and territorial identity. A unicameral legislature cannot adequately represent the interests of all communities or regions. The establishment of a bicameral legislature, consisting of a Lower House (National Assembly) and an Upper House (Council of States or Senate), would address this structural limitation.

In such a framework, the Lower House would represent citizens directly through constituency-based elections, while the Upper House would represent the states and regions, ensuring that smaller or less populous entities have a voice in national decision-making. This model aligns with the logic of federal or devolved systems found in Kenya (Constitution of Kenya, 2010, Chapter 8) and Ethiopia (FDRE Constitution, 1995, Chapter 5), both of which have used bicameralism to balance majoritarian politics with regional equity.

A bicameral legislature would also provide a mechanism for internal legislative oversight, reducing the risk of rushed or unilateral decision-making by a single chamber. By requiring concurrence between two houses, the legislative process would become more deliberative and inclusive, enhancing public confidence in the legitimacy of national laws. Importantly, both chambers should be elected through universal suffrage, as appointment-based systems tend to reproduce elite dominance and undermine democratic participation.

Limiting Executive Power and Reimagining the Presidency

If the constitutional history of South Sudan has taught us anything, it is that excessive concentration of power in the presidency breeds instability. The TCRSS grants the President expansive powers, including the authority to appoint and dismiss state governors, dissolve parliament, and issue decrees with the force of law (TCRSS, Arts. 97–101). While these powers were initially justified as transitional necessities, their continued application has transformed the presidency into an institution of near-absolute authority.

This centralisation of power contradicts the very notion of constitutional government, where authority is constrained by law and subject to institutional oversight. Political theorists from Montesquieu to Madison have warned that unchecked power is incompatible with liberty. The maxim that “absolute power corrupts absolutely,” attributed to Lord Acton, remains profoundly relevant to South Sudan’s political experience.

To prevent the personalisation of the state, the new constitution must entrench effective checks and balances. These should include parliamentary confirmation of key executive appointments, clear limitations on the use of presidential decrees, and judicial review of executive actions. Moreover, term limits must be constitutionally guaranteed and insulated from amendment by ordinary legislative procedure. Comparative experiences from Kenya (2010), Ghana (1992), and South Africa (1996) demonstrate that strong institutions, not strongmen, are the true guarantors of stability and progress.

Educational Criteria and the Presidency

The question of who is qualified to lead South Sudan is not merely political but constitutional. The current eligibility requirement for the presidency, that a candidate be “literate”, is both imprecise and insufficient. While inclusivity is essential in a post-conflict society, the presidency is a position of immense responsibility requiring intellectual competence, legal literacy, and policy understanding. A minimal literacy threshold does not reflect the demands of a modern, globally interconnected state.

I therefore propose that the eligibility criteria be revised to require that any candidate for the presidency possess at least a bachelor’s degree or its equivalent from a recognised institution. This is not to privilege formal education over leadership virtues but to ensure that those who aspire to the highest office possess the intellectual tools necessary to engage with the complexities of statecraft, governance, and international diplomacy. Comparable standards exist in other jurisdictions, for instance, Kenya’s Constitution requires a university degree for high public offices (Art. 148(1)(b)), and Nigeria mandates a minimum level of formal education for presidential candidates (1999 Constitution, Sec. 131(d)).

Such provisions signal a commitment to merit-based leadership while maintaining democratic accessibility. South Sudan deserves a presidency defined not by personal allegiance but by competence, vision, and constitutional fidelity.

Institutional Clarity Between Police and Public Attorneys

A less visible yet equally important institutional problem lies in the overlapping roles of the National Police Service and public attorneys. In practice, attorneys are embedded within police stations, performing investigative and prosecutorial functions simultaneously. This fusion of roles undermines due process, prolongs case resolution, and fosters corruption within the justice system.

In modern legal systems, the police are responsible for investigation and evidence gathering, while prosecution is the domain of independent public attorneys or directors of public prosecutions. For example, in the United Kingdom, the Crown Prosecution Service (CPS) operates entirely separate from the police, ensuring objectivity and legal rigor. Similarly, Kenya’s Office of the Director of Public Prosecutions (ODPP) functions independently from the National Police Service (Constitution of Kenya, 2010, Art. 157).

South Sudan should adopt this institutional model. Public attorneys should be placed under the administrative supervision of the Ministry of Justice and Constitutional Affairs, not within police stations. This separation would enhance professionalism, reduce conflict of interest, and streamline the criminal justice process. It would also restore public confidence in law enforcement by making each institution accountable for its distinct constitutional mandate.

The Constitution as a Social Covenant

Ultimately, constitution-making is not only about legal drafting but also about forging a social covenant, a shared commitment between citizens and their government. The repeated failures of constitutional processes in South Sudan reflect not merely technical shortcomings but deeper political fractures and a lack of public participation. In previous processes, drafting has too often been dominated by political elites, with limited space for meaningful civic engagement. The result has been a constitution that lacks public ownership and moral legitimacy.

For the ongoing process to succeed, it must embrace inclusivity, transparency, and consensus-building. The constitution must emerge from dialogue among all sectors of society such as women, youth, civil society, religious leaders, traditional authorities, and marginalised groups. The process must be open, participatory, and guided by the principle that sovereignty belongs to the people. Lessons from Kenya’s 2010 constitutional review demonstrate that when citizens are meaningfully involved, the resulting document commands legitimacy and durability.

A constitution that arises from broad-based participation is more than a legal text since it becomes a moral charter for the nation. It defines not only how power is exercised but also how communities coexist, how justice is pursued, and how citizens relate to their state. In a country like South Sudan, emerging from conflict and seeking to rebuild trust, this covenantal dimension of constitution-making is indispensable.

Conclusion: Democratic and Accountable Constitutional Order

South Sudan stands at a constitutional crossroads. After years of turmoil and transition, the current process offers a historic opportunity to reimagine the state on principles of justice, equality, and accountability. The constitution must not serve as an instrument for concentrating power but as a safeguard for dispersing it. It must limit authority, not glorify it; protect citizens, not rulers; and ensure that the government serves the governed, not the reverse.

The path to a durable constitution is not in the words written on paper but in the collective will to live by them. Constitutionalism, in its truest sense, is a culture of restraint, dialogue, and responsibility. If South Sudan can internalize this culture, through institutions that are independent, leaders who are accountable, and citizens who are empowered, then the long-delayed promise of the CPA will finally find its fulfillment in the Republic of South Sudan.

The author, Hon. Isaiah Chol-Amot Aruai Ajang, is the former Chairperson of the National Bureau of Statistics in the Republic of South Sudan and the first Twic East County Commissioner in Jonglei state. He can be reached via his email address: [email protected].

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