As South Sudan prepares to declare its independence on July 9, political leaders and legal specialists there have been working for months to prepare a transitional constitution that will create a framework for South Sudan’s transformation from an autonomous region to an independent state.

The South Sudanese have received important technical help in the crucial endeavor of constitution-making from a number of outside experts, including from the United States Institute of Peace (USIP). USIP has been serving as an adviser to a body known as the Technical Committee to Review the Interim Constitution of Southern Sudan. That group’s task has been to develop not only new constitutional terminology to reflect the birth of the Republic of South Sudan on July 9 but to draft a series of amendments to guide the set-up of the new republic’s executive and legislative branches, among other key issues.

Though moves to prepare a transitional constitution have drawn significant political opposition within South Sudan, though the legislative assembly approved the document on July 6 after nearly eight hours of deliberation.

USIP’s advisory work has focused on suggesting ways for the South Sudanese to build an open and effective process of constitutional transformation, in addition to providing advice on specific constitutional provisions, says Jason Gluck, USIP’s senior rule of law adviser and the director of its constitution-making program.

USIP’s efforts in South Sudan follow the publication last year of a path-breaking volume on the practical challenges of constitution-making in a variety of countries emerging from conflict or autocratic rule. In all, Framing the State in Times of Transition examined 19 cases, sifting through the complexities and options faced by those trying to ground their state-building on a democratic, constitutional foundation.

“This is very much a case of bringing together the ‘think’ and the ‘do’ of the Institute,” says Gluck. “We have the thought leadership in this area, and we have the opportunity to go to places like South Sudan and bring that learning to bear.” Gluck’s advisory work on South Sudan constitutional issues began last December, and he expects that it will continue with a focus on the drafting of an eventual, permanent constitution later this year—after the transitional document is formally in place.

In anticipation of that shift in South Sudan’s constitutional focus, Gluck, along with Susan Stigant of the National Democratic Institute, drafted a paper in March titled, “Roadmap to South Sudan’s Permanent Constitution: Goals, Principles and Options.” In it, they write:

“There is no single ‘best practice’ for constitution-making. The constitutional drafting process that will work best for South Sudan must be designed by South Sudanese based on the nation’s unique history, politics, society, resources, priorities and needs. While no two processes are identical, successful democratic constitutions do share a fundamental quality–they are deemed legitimate in the eyes of the citizenry.”

Acknowledging the political sensitivities raised by the constitution-making process, the paper suggests five guiding principles as the South Sudanese move forward:

• Inclusivity: “Representatives of communities of interest are, wherever possible, given a seat at the table so that each has a hand in the negotiating and drafting of the document.”
• Public Participation: “In recent constitution-making experiences, the people are guaranteed an opportunity to express their needs and aspirations in a forum that is conducive to democratic dialogue.”
• Transparency: “The constitution-making process is conducted in an open and transparent manner so that people are not needlessly suspicious of hidden political agendas.”
• Consensus: “Decisions are reached by drafting and negotiating bodies based on discussion, negotiation and persuasion, not by inflexible application of majority rules. Achieving consensus depends on having time to build relationships and gain mutual understanding.”
• Ownership: South Africa and Kenya established their own process and developed the content of their own constitutions. While they drew on experience and expertise from other countries, the roadmap was defined, driven and led from within.”