Fighting intensified this week in Sudan’s Southern Kordofan state and in a disputed area along the border, putting at further risk cooperation between the two states.  Amid this backdrop of heightened tensions, the U.S. Institute of Peace (USIP) has been assisting officials and civil-society groups in Sudan and newly independent South Sudan in their efforts to promote the development of constitutions through processes that are inclusive, participatory and transparent.

 

Movement toward a new constitution in each country has proved to be slow and difficult for a variety of reasons, including the political sensitivities that are in play and, in the case of South Sudan, the demands of new nationhood amid internal violence and limited governmental capacity. Ongoing tensions between Sudan and South Sudan, which formally broke away from Sudan on July 9 of last year after an independence referendum and multiyear peace process, have also distracted the political establishments of each country. 

 

Jon Temin, the director of USIP’s Sudan programs, said the prospect of new constitutions offers “a real opportunity to lay a solid foundation for the years to come,” but there is serious concern that the opportunity could be missed. He spoke at a USIP-sponsored briefing on March 27, Constitution Making in the Two Sudans.

 

How the eventual constitutions are created is key. “The constitutional moment must be more than a mere drafting exercise,” said Jason Gluck, the Institute’s senior rule of law adviser. He said that drafting a constitution can achieve more than just a new text. It can strengthen national unity; promote a common national identity; build trust and reconciliation between communities; introduce or strengthen a culture of democracy; and begin to repair the damages of war. “But these goals are less likely to be accomplished by a group of elite politicians sitting alone in a darkened room,” he said.

 

Gluck argued that processes that include a broad spectrum of social and political groups, offer opportunities for them to contribute to a “national dialogue” and emphasize openness are more likely to confer legitimacy on a constitution and government—as well as foster peace and stability. “Particularly in post-conflict and transitional environments,” said Gluck, “process may matter more than the text itself.”

 

USIP has been providing legal assistance and support on the ground in both countries.

 

Sudan. “USIP is working with Sudanese to identify what they want to achieve and then develop a constitution-making process that best suits their needs and interests,” said Gluck. Starting in late 2010, the Institute has conducted workshops in the capital Khartoum that supported the creation of a coalition of more than 40 nongovernmental groups that are seeking to educate the Sudanese public and policymakers about developing democratic constitutions with wide societal support. The Sudanese Initiative for Constitution-Making (SICM) was founded in March 2011. Last December, SICM, in partnership with other civil society leaders and groups, developed two core documents: a Declaration of Constitutional Principles and a Roadmap for the Constitution-Making Process. The group said it hoped to promote a “national dialogue” that will foster unity, contribute to national reconciliation and rely on democratic principles. Gluck said that through SICM “the discourse itself has been mainstreamed” in Sudanese media and society.

 

“We do not prescribe a specific approach to constitution-making. We offer our experience—best practices and options,” said Gluck, who is involved in similar work in Tunisia and Libya and previously in Iraq.

 

Still, the challenges remain formidable. Appearing at the USIP briefing, Nureldin Satti, a former Sudanese diplomat and United Nations official who is now secretary general of the Sudan National Library, called constitution making in Sudan “a very divisive issue.” He described a political struggle between those seeking an Islamist-oriented constitution and those favoring a more secular document. Differences exist within each camp and within the ruling National Congress Party, he said, and Sudan still lacks an agreed process to move forward. 

 

Temin said in testimony before the Senate Foreign Relations Committee on March 14, “Recent events and statements suggest that genuine constitutional reform is a tall order. But sooner or later, the people of Sudan must have a dialogue among themselves about the nature of the Sudanese state and how it should be governed.” 

 

South Sudan. South Sudan is further along in the process, with its president having launched a national commission in January to lead the way. “It will be a test of the Government of South Sudan’s commitment to good governance and genuine democracy,” Temin said in his testimony. However, political leaders in the capital Juba are grappling with the demands of new nationhood, particularly amid internal violence, border clashes with Sudan, lack of governmental capacity and severe poverty. The new commission has not yet met, noted Veronica Eragu, a Ugandan lawyer and South Sudan specialist who is currently a USIP Jennings Randolph senior fellow.

 

Last year, USIP’s Gluck provided direct support to a body known as the Technical Committee to Review the Interim Constitution of Southern Sudan, an official group that guided the process of creating the transitional constitution currently in effect in South Sudan. 

 

USIP’s work focused on suggesting ways for the South Sudanese to establish an open and effective process of constitutional transformation, in addition to providing advice on specific constitutional provisions. As Juba gets organized for its formal constitution-drafting process, USIP expects to play a supportive role for officials and others, said Gluck.