1 See generally Mbondenyi, MK and Ojienda, T Constitutionalism and Democratic Governance in Africa: Contemporary Perspectives from Sub-Saharan Africa (2013, Pretoria University Law Press) at 1Google Scholar. See also Johnson, HF South Sudan: The Untold Story from Independence to Civil War (2016, LB Tauris & Co) at 1Google Scholar, which discusses the link between constitutionalism and South Sudan's democratic backsliding into chaos, civil war and lawlessness.

2 See generally Waal, A de “When kleptocracy becomes insolvent: Brute causes of the civil war in South Sudan” (2014) 113 African Affairs 347Google Scholar; Johnson, DH “The political crisis in South Sudan” (2014) 53/3 African Studies Review 167Google Scholar. See also JG Akech “Prosecution or reconciliation? Perspectives on the Commission for Truth, Reconciliation and Healing and the independent Hybrid Court for South Sudan” (LLM dissertation, University of Pretoria, December 2018) at 9.

3 Referred to as the Revitalised Agreement on the Resolution of Conflict in South Sudan 2018 (Revitalised Peace Agreement).

4 Id, cap 6.

5 See generally JG Akech “Out of time but full of enthusiasm? Assessing progress and hurdles in South Sudan's constitution-making process” (April 2022), available at: <https://constitutionnet.org/news/out-time-full-enthusiasm-assessing-progress-and-hurdles-south-sudans-constitution-making> (last accessed 8 October 2022).

6 JG Akech, MG Mading and PG Geng “Amending the South Sudan's Revitalized Peace Agreement: The implications of the extension and its roadmap” (August 2022) at 1, available at: <https://suddinstitute.org/assets/Publications/62f597fd5f1f6_AmendingTheSouthSudansRevitalizedPeaceAgreement_Full.pdf> (last accessed 7 October 2022).

7 Some of the factors mentioned by scholars include the absence of national reconciliation, the return and resettlement of internally displaced persons and refugees, the acute humanitarian crisis and economic distress. For more details on this, see generally AT Mayai, M LeRiche and W Underwood “Democratic elections in South Sudan” (March 2022), available at: <https://suddinstitute.org/assets/Publications/621decbd2b89e_DemocraticElectionsInSouthSudan_Full.pdf> (last accessed 6 October 2022).

8 JG Akech “Constitution-making is not a race against time” (May 2022) at 1, available at: <https://suddinstitute.org/assets/Publications/6296e5bf8e86b_ConstitutionmakingIsNotARaceAgainstTime_Full.pdf> (last accessed 6 October 2022).

9 See Revitalised Peace Agreement, paras 1.18.4 and 7.2, for evidence that foreign nationals chair both the National Constitutional Amendment Committee and the Revitalised Joint Monitoring and Evaluation Commission (RJMEC).

10 See generally Fombad, CM “Constitution-building in Africa: The never-ending story of the making, unmaking and remaking of constitutions” (2014) 13 African and Asian Studies 429CrossRefGoogle Scholar.

11 Wolfrum, R “The UN experience in modern intervention” in Keren, M and Sylvan, D (eds) Interventional Intervention: Sovereignty versus Responsibility (2002, Routledge) 95 at 96Google Scholar.

12 See generally S Wassara “South Sudan: State sovereignty challenged at infancy” (2015) 9 Journal of Eastern African Studies 634.

13 See International IDEA “Constitution building after conflict: External support to a sovereign process” (May 2011) at 11, available at: <http://www.constitutionnet.org/sites/default/files/2017-06/cb-after-conflict.pdf> (last accessed 7 October 2022).

14 Id.

15 Guidance note of the Secretary-General on United Nations constitutional assistance, UN doc September 2020 at 1, available at: <https://peacemaker.un.org/sites/peacemaker.un.org/files/SG%20Guidance%20Note%20on%20Constitutional%20Assistance_1.pdf> (last accessed 25 August 2023).

16 See generally Murray, C “Political elites and the people: Kenya's decade long constitution-making process” in Negretto, G (ed) Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives (2020, Cambridge University Press)Google Scholar, discussing how the elites’ consensus in Kenya was instrumental in the constitution-building process; Negretto, G “Constitution-making and liberal democracy: The role of citizens and representative elites” (2020) 18/1 International Journal of Constitutional Law 206 at 207CrossRefGoogle Scholar, arguing that political elites’ agreements eventually transform into normative liberal values in a constitution. Such political consensus reinforces civic education, thus expanding consensus among the people. See generally Bell, C “Introduction. Bargaining on constitutions: Political settlements and constitutional state-building” (2017) 6/1 Global Constitutionalism 32CrossRefGoogle Scholar, discussing how negotiated settlements between political elites can be used to broaden and entrench constitutional normativity.

17 Arato, A “Forms of constitution-making and theories of democracy” (1996) 17 Cardozo Law Review 191Google Scholar.

18 See generally Steinitz, M “Internationalized pro bono and a new global role for lawyers in the 21st century: Lessons from nation-building in Southern Sudan” (2009) 12/1 Yale Human Rights and Development Journal 240Google Scholar, discussing legal pro bono services of international lawyers who participated in the Southern Sudan constitution-making processes.

19 Luk was the Minister for Legal Affairs and Constitutional Development and a leading member of the SPLM who led the drafting of the Transitional Constitution in 2011.

20 M Deng “Constitutional transformations: Failure and opportunity in post-independence South Sudan” (PhD thesis, University of Queensland, 29 March 2021) at 5.

21 Bannon, A “Designing a constitution-drafting process: Lessons from Kenya” (2007) 116/8 Yale Law Journal 1824CrossRefGoogle Scholar; Ginsburg, T, Elkins, Z and Blount, J “Does the process of constitution-making matter?” (2009) 5 Annual Review of Law and Social Science 201CrossRefGoogle Scholar; Saati, A “Participation – to unveil a myth” in Abbiate, T, Böckenförde, M and Federico, V (eds) Public Participation in African Constitutionalism (2018, Routledge) 14Google Scholar, discussing the meaning and scope of public participation in constitution building; A Saati “Participatory constitution-making as a transnational legal norm: Why does it ‘stick’ in some contexts and not in others?” in G Shaffer (ed) Constitution-Making and Transnational Legal Order (2019, Cambridge University Press) 283, demystifying participatory constitution building in post-conflict states and arguing that it is indeed a “good thing” to allow the public to participate in constitutional design; A Saati “Public participation in constitution building processes: What does it mean?” (paper presented at the IPSA World Congress, Madrid, 8 July 2012), available at: <https://www.diva-portal.org/smash/get/diva2:759743/fulltext01.pdf> (last accessed 25 August 2023); Prempeh, K “Does participation help to foster constitutionalism in Africa?” in Abbiate, T, Böckenförde, M and Federico, V (eds) Public Participation in African Constitutionalism (2018, Routledge) 298Google Scholar; V Hart “Democratic constitution making” (2003) United States Institute of Peace 1, available at: <https://www.usip.org/publications/2003/07/democratic-constitution-making> (last accessed 25 August 2023); D Moehler “Prospects and pitfalls of participation” in D Moehler (ed) Distrusting Democrats: Outcomes of Participatory Constitution Making (2008, University of Michigan Press) 12, discussing possible outcomes of people's participation in constitutional design, but arguing that more participation does not necessarily lead to entrenched democracy.

22 Ginsburg, Elkins and Blount “Does the process”, above at note 21 at 5.4, where they discuss deliberation as one of the phases of participatory constitution building. See also Bannon “Designing”, above at note 21 at 1827.

23 Y Ghai “The role of constituent assemblies in constitution making” (2006) at 3, available at: <http://constitutionnet.org/sites/default/files/the_role_of_constituent_assemblies_-_final_yg_-_200606.pdf> (last accessed 18 August 2021).

24 Samuels, K “Post-conflict peace-building and constitution-making” (2006) 6 Chinese Journal of International Law 662 at 667Google Scholar.

25 Dann, P and Al-Ali, Z “The internationalized pouvoir constituant: Constitution-making under external influence in Iraq, Sudan and East Timor” (2006) 10 Max Planck Yearbook of United Nations Law 423 at 449Google Scholar.

26 Ocheje, P “Exploring the legal dimensions of political legitimacy: A rights approach to governance in Africa” in Quashigah, K and Okafor, C (eds) Legitimate Governance in Africa: International and Domestic Legal Perspectives (1999, Kluwer Law International) 109 at 168Google Scholar.

27 J Wallis “The role of a constituent process in state building” in J Wallis (ed) Constitution Making during State Building (2014, Cambridge University Press) 315 at 342.

28 Y Ghai “Civil society, participation and the making of Kenya's constitution” in D Landau and H Lerner (eds) Comparative Constitution Making (2019, Edward Elgar Publishing) 212 at 231.

29 M Brandt “Constitutional assistance in post-conflict countries. The UN experience: Cambodia, East Timor and Afghanistan” (2005) at 1, available at: <https://www.agora-parl.org/sites/default/files/agora-documents/Constitutional%20Assistance%20in%20Post-Conflict%20Countries.pdf> (last accessed 8 October 2022).

30 See generally Saati “Public participation”, above at note 21.

31 R Dixon and E Posner “The limits of constitutional convergence” (2011) 2 Chicago Journal of International Law 402.

32 BA Simmons, F Dobbin, and G Garrett “Introduction: The international diffusion of liberalism” (2006) 60 International Organization 782.

33 B Goderis and M Versteeg “Transnational constitutionalism: A conceptual framework” in D Galligan and M Versteeg (eds) Social and Political Foundations of Constitutions (2013, Cambridge University Press) 103 at 104. See also H Adelman “Theory of humanitarian intervention” in M Keren and D Sylvan (eds) International Intervention: Sovereignty versus Responsibility (2006, Routledge) 121, which discusses how the South African apartheid government may have absorbed foreign constitutional ideas to elevate its standing in the eyes of the international community; D Jinks and R Goodman “How to influence states: Socialisation and international human rights law” (2004) 54 Duke Law Journal 1.

34 Remark by an elder, Dr Aldo Ajou Deng Akuei, during a roundtable radio talk show entitled “Taking stock of the last 10 years of South Sudan's independence” (10 July 2021, Radio Miraya).

35 M Ndulo “Constitution making: The role of external actors” (2014) 1/1 Southern African Journal of Policy and Development 6 at 9.

36 K Seidel “State formation through constitution making in emerging South Sudan: Unveiling the technicity of the rule of law” (2015) at 3, available at: <https://www.nomos-elibrary.de/10.5771/2363-6270-2015-1-3/state-formation-through-constitution-making-in-emerging-south-sudan-unveiling-the-technicity-of-the-rule-of-law-jahrgang-18-2015-heft-1> (last accessed 11 July 2022).

37 Remarks by Adem K Abebe during a constitution-making workshop organised by International IDEA, UNMISS and UNDP, held in Juba, South Sudan (30 June 2021).

38 My informants tell me that such a pot is common in Africa and is called by different names. For instance, the Luo call it “polo” whereas the Jiëëng and Nuer call it “Töny é thöt” and “Dhär”, respectively. The Zulus in South Africa refer to it as “ibhidwe lesiZulu”, while the Akan ethnic group in Ghana call it “mukyea”.

39 See generally Samuels “Post-conflict peace-building”, above at note 24.

40 Guidance note, above at note 15 at 1.

41 V Sripati “The United Nation's role in post-conflict constitution building processes: TWAIL insights” (2008) 10 International Community Law Review 411 at 413.

42 Resolution of the UN Security Council, 15 March 2019, UN doc 2459, para 9.

43 Guidance note, above at note 15 at 7.

44 K Seidel “They cannot influence by remote control bringing money here and there: Brief reflections on international rule-of-law engagement in emerging South Sudan” (2019) at 7, available at: <https://www.gcr21.org/publications/gcr/gcr-quarterly-magazine/global-cooperation-research-3-/-2019?type=rss> (last accessed 10 August 2023).

45 S Bisarya “No strings attached? Constraints on external advice in internationalized constitution-making” in E De Groof and M Wiebusch (eds) International Law and Transitional Governance: Critical Perspectives (2020, Routledge) 58 at 60.

46 “Troika warns against inflammatory statements by South Sudanese parties” (11 February 2022) Sudan Tribune, available at: <https://sudantribune.com/article67085/> (last accessed 25 August 2023). See also “South Sudan parties must compromise on critical issues: Troika” (7 February 2020), Sudan Tribune, available at: <https://sudantribune.com/article67064> (last accessed 25 August 2023).

47 See generally Hanssen, HJ Lives at Stake: South-Sudan during the Liberation Struggle (2018, Africa World Books)Google Scholar and Johnson South Sudan, above at note 1. Hilde Johnson, the then Minister of International Development of Norway, was a leading member in the 2005 peace negotiations between the Sudan government and the SPLM before becoming the first UN Secretary General Special Representative to the newly independent nation which she helped give birth to through negotiations, thus giving her a first-hand view of political dynamics in South Sudan.

48 L Moro et al “Localising humanitarian aid during armed conflict: Learning from the histories and creativity of South Sudanese NGOs” (2020) at 44, available at: <https://assets.publishing.service.gov.uk/media/5e735e6ee90e073e3cdaf462/20200318_20_0076_South_Sudan_Report_Report_web.pdf> (last accessed 22 July 2021), discussing the increased number and evolving influence of national civil-society organizations, through and with whom international actors collaborate to reach communities.

49 Personal communication with anonymous Troika diplomat, Juba (25 July 2019).

50 Personal communication with anonymous diplomat, Juba (10 November 2020).

51 Ibid.

52 TM Franck and AK Thiruvengadam “International law and constitution-making” (2003) 2 Chinese Journal of International Law 467 at 469.

53 It comprises eight countries: Sudan, South Sudan, Kenya, Ethiopia, Eritrea, Djibouti, Somalia and Uganda.

54 Max Planck “Support to the constitutional process in South Sudan”, available at: <https://www.mpfpr.de/projects/south-sudan/support-to-the-constitutional-process-in-south-sudan/ > (last accessed 6 October 2022).

55 K Cope “South Sudan's dualistic constitution” in D Galligan and M Versteeg (eds) Social and Political Foundations of Constitutions (2013, Cambridge University Press) 295 at 304.

56 See generally C Daase “Making the client's peace: ‘Privatizing’ peace? Global law firms offering pro bono services in post-conflict settings” (2014) 21/2 Indiana Journal of Global Legal Studies 423.

57 Cope “South Sudan's dualistic constitution”, above at note 55 at 304.

58 Ibid; Cope, K “The intermestic constitution: Lessons from the world's newest nation” (2013) 53/3 Virginia Journal of International Law 667 at 693Google Scholar.

59 Id at 686.

60 Cope “South Sudan's dualistic constitution”, above at note 55 at 303.

61 The Revitalised Peace Agreement does not address these issues to their logical conclusion, although it has provided mechanisms to address them.

62 Interim Constitution of Southern Sudan 2005, art 208(7).

63 See generally Tushnet, M “Constitution-making: An introduction” (2013) 91/1 Texas Law Review 1983Google Scholar. See also Banks, A “Expanding participation in constitution-making: Challenges and opportunities” (2008) 49/4 William and Mary Law Review 1047Google Scholar.

64 D Gruss and K Diehl “A new constitution for South Sudan” (2011) Yearbook of Islamic and Middle Eastern Law 69 at 77.

65 See generally All-Southern Sudanese Political Parties Conference “Final communiqué of Southern Sudan parties conference on referendum” (2010), available at: <https://reliefweb.int/report/sudan/final-communiqué-southern-sudan-parties-conference-referendum-18-oct-2010> (last accessed 12 February 2021).

66 Cope “South Sudan's dualistic constitution”, above at note 55 at 306.

67 Z Akol “A nation in transition: South Sudan's constitutional review process” (2013) at 3, available at: <https://bit.ly/2UQ1PmK> (last accessed 27 March 2019). See also Ghai “Civil society”, above at note 28 at 227, discussing constraints attendant on public participation, as it requires considerable time to build consensus and forge a common direction for the complex issues involved in constitutional design.

68 Cope “The intermestic constitution”, above at note 58 at 699.

69 The Commission was chaired by a distinguished South Sudanese constitutional scholar, the late professor Akolda Tier, who was appointed in 2012 by President Salva Kiir Mayardit.

70 J Christian “Is time running out for South Sudan's new constitution?” (2012) at 2, available at: <http://constitutionnet.org/sites/default/files/071112_sudanconst_brief_v3.pdf> (last accessed 25 March 2019).

71 See the Constitution-Making Process Act 2022.

72 To “reconstitute” in this case is to expand membership to the parties to the Revitalised Peace Agreement. The institutions of constitution building are the National Constitutional Review Commission, the Constitutional Drafting Committee, the Preparatory Sub-Committee for the National Conference, the National Constitutional Conference and the Constituent Assembly.

73 JG Akech “The transitional national legislature is to be transformed into a constituent assembly to adopt the ‘permanent’ constitution of South Sudan, but what does this mean?” (2021), available at: <https://africlaw.com/2021/10/25/the-transitional-national-legislature-is-to-be-transformed-into-a-constituent-assembly-to-adopt-the-permanent-constitution-of-south-sudan-but-what-does-this-mean%EF%BF%BC/> (last accessed 9 October 2022).

74 Revitalised Peace Agreement, art 6.6.1.

75 Id, art 6.6.16.

76 Id, art 6.6.12.

77 HLA Hart The Concept of Law (2nd ed, 2012, Oxford University Press) at 100.

78 See above at note 9.

79 K Seidel and T Sureau “Introduction: Peace and constitution-making in emerging South Sudan on and beyond the negotiation tables” (2015) 9/4 Journal of Eastern African Studies 612 at 626. See also Wassara “South Sudan”, above at note 12 at 639.

80 Akech “Constitution-making”, above at note 8.

81 DK Deng “Constitutionalism under siege: Constitutional standoffs in South Sudan and their implications for the war-torn nation” in L Oette and M Babiker (eds) Constitution-Making and Human Rights in the Sudans (2019, Routledge) 67.

82 W Osiastynski “Paradoxes of constitutional borrowing” (2003) 1/2 International Journal of Constitutional Law 244 at 267.

83 J Elster “Forces and mechanisms in the constitution-making process” (1995) 45 Duke Law Journal 364 at 394.

84 S Nabukenya “Why do constitutions in Africa not stand the test of time? Lessons and perspectives from Uganda” in J de Visser et al (eds) Constitution-Building in Africa (2015, Nomos Verlagsgesellschaft) 293 at 294.

85 See generally Ginsburg, Elkins and Blount “Does the process”, above at note 21, discussing the importance of the constitution-making process.

86 Constitution-Making Process Act 2022, sec 19.

87 Id, paras 2(2.1)–2(2.9).

88 RJMEC “Post-conflict constitution-making processes: Lessons and best practices for South Sudan” (2020) at 51, available at: <https://jmecsouthsudan.org/index.php/reports/rjmec-quarterly-reports/169-post-conflict-constitution-making-processes-lessons-and-best-practices-for-south-sudan-final-report-2020/file> (last accessed 18 August 2021).

89 Constitution-Making Process Act 2022, sec 30(1). Sec 302(1) lists “political parties, civil society, including women, youth, and faith-based organisations, people with disabilities, internally displaced persons, refugees and diaspora, traditional leaders, war widows, veterans and war wounded, business leaders, trade unions, professional associations, academia and others” as categories from which delegates are to be selected.

90 Id, sec 30(2).

91 Id, sec 30(3).

92 See Constitution-Making Process Act, sec 33(3)(a). Note that the 650 members of Parliament are spread between the Transitional National Legislative Assembly, which comprises 550 members, and the Council of States, which is made of 100 individuals.

93 Elster, J “The optimal design of a constituent assembly” in Elster, J (ed) Securities against Misrule: Juries, Assemblies, Elections (2013, Cambridge University Press) at 206CrossRefGoogle Scholar.

94 Ibid.

95 Id at 208.

96 See World Bank population data, available at: <https://data.worldbank.org/indicator/SP.POP.TOTL.FE.IN?locations=SS> (last accessed 20 January 2023). The Revitalised Government of National Unity that the peace agreement established has, however, appointed a sizeable number of women: the Governor of Western Bhar el Ghazal State, one of the five vice presidents, and the Speaker and Deputy Speaker of the National Legislative Assembly and the Council of States, respectively.

97 Transitional Constitution of the Republic of South Sudan 2011, art 16.

98 NM Ali “Gender and statebuilding in South Sudan” (2011) at 3, available at: <https://www.usip.org/publications/2011/12/gender-and-statebuilding-south-sudan> (last accessed 19 January 2023).

99 Constitution-Making Process Act 2022, art 11.

100 T Tindall “Women's participation and influence in transitions from conflict: The case of South Sudan” (2022) at 15, available at: <https://cdn.odi.org/media/documents/WPS_South_Sudan_Case_Study_FINAL_FCDO_v2_3eWbhFR.pdf> (last accessed 20 January 2023).

101 L Beckman “Democratic legitimacy does not require constitutional referendum: On ‘the constitution’ in theories of constituent power” (2018) 14 European Constitutional Law Review 567 at 571.

102 Böckenförde, M “Letting the constituent power decide? Merits and challenges of referenda in constitution making processes in Africa” in Abbiate, T, Böckenförde, M and Federico, V (eds) Public Participation in African Constitutionalism (2018, Routledge) 31Google Scholar.

103 Elster “Forces and mechanisms”, above at note 83 at 373, discussing constraints instituted to ensure popular approval of a constitution.

104 Böckenförde “Letting the constituent power decide?”, above at note 102 at 31.

105 Elster “Forces and mechanisms”, above at note 83, describing upstream constraints as an imposition on the extent to which actors at the end of constitution building can change the constitutional text.

106 Beckman “Democratic legitimacy”, above at note 101 at 571.

107 Id at 568.

108 King, J “Constitutions as mission statements” in Galligan, D and Versteeg, M (eds) Social and Political Foundations of Constitutions (2013, Cambridge University Press) at 89Google Scholar.

109 Cope “The intermestic constitution”, above at note 58 at 683.

110 Beckman “Democratic legitimacy”, above at note 101 at 573.

111 Id at 568.

112 Id at 569. The National Dialogue was an initiative launched by President Kiir in December 2016 to promote dialogue among South Sudanese people on how to promote peace and national unity. See <https://www.ssnationaldialogue.org/national-dialogue-objectives/> (last accessed 25 August 2023).

113 Beckman “Democratic legitimacy”, above at note 101 at 568.

114 Jacobsohn, G “An unconstitutional constitution? A comparative perspective” (2006) 4 International Journal of Constitutional Law 460CrossRefGoogle Scholar, discussing the idea of unconstitutional constitutionality in terms of constitutional amendments that are deemed illegal by virtue of being contrary to the spirit of the founding values of the constitution.

115 Certification of the Constitution of the Republic of South Africa (1996), Constitutional Court Case CCT 23/96, Southern Africa Law Report.

116 Murray, C “A constitutional beginning: Making South Africa's final constitution” (2001) 23 University of Arkansas at Little Rock Law Review 815Google Scholar.

117 K Seidel “Involvement and impact of external actors on constitution making in South Sudan and Somaliland: A comparative study” (2017) Global Cooperation Research Papers 16.

118 Revitalised Peace Agreement, art 6.2.1.

119 Id, arts 6.2.2, 6.2.3 and 6.2.4.

120 Id, arts 6.2.5, 6.2.6, 6.2.7 and 6.2.8.

121 A Follesdal “Constitutionalisation of European law by European courts: Legitimate constitutional moments?” (2018) at 2, available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3211889> (last accessed 13 November 2019).

122 Beckman “Democratic legitimacy”, above at note 101 at 577.

123 Revitalised Peace Agreement, art 1.17.7.

124 The phrase zol meskin is a Juba Arabic term referring to a less fortunate or common person. It is used in this context to refer to the “ordinary” person.