Since South Sudan’s political crisis turned violent on 15 December 2013, the dynamics of conflict have left little hope that the standoff between the different factions can be settled swiftly. The cease fire negotiations which began on 4th January continue to be overshadowed by military posturing. Riek Machar, on behalf of the armed opposition, recently announced that “Juba will fall soon”. Considering the threat of an actual overthrow of Salva Kiir’s government, major regional actors have declared their disapproval of a possible coup d’état. This stance reflects a much wider shift towards the defence of constitutional and democratic governance through pan-African governance arrangements.

While these measures may help to de-escalate the conflict by pushing the warring factions to the negotiation table, they are in danger of  disguising the fact that the conflict erupted in the context of a political transition which ought to define the very political foundations of the new state in the first place. Much of the underlying political conflict that is at the heart of the current violence is related to a bumpy constitutional process since the Comprehensive Peace Agreement (CPA) of 2005, as well as the deliberate undermining of existing constitutional principles.

Africa‘s emerging peace and security architecture and the new constitutionalism

South Sudan’s regional partners are worried. In an extraordinary session of the heads of states of the Intergovernmental Authority on Development (IGAD), the assembly condemned all “unconstitutional actions to challenge the constitutional order, democracy and the rule of law” and attempts to “chang[e] the democratic government of the Republic of South Sudan through use of force”.

In a similar vein, the Executive Secretariat of the International Conference on the Great Lakes Region (ICGLR) on 17th December condemned what it called a “criminal act of attempt to overthrow a legitimate and democratically elected Government”, and drawn attention to its Protocol on Democracy and Good Governance, which South Sudan has ratified. The Protocol “compels Governments to access power through regular, free, fair and transparent elections and prohibits any unconstitutional change or any other undemocratic means of acceding to or maintaining power”.

This position was echoed by the Peace and Security Council of the African Union (AUPSC), which at its 411th meeting on 30th December 2013 emphasised its disapproval of any possible unconstitutional change of government. South Sudan’s regional partners have thus made it clear that they will not recognize any unconstitutional change of government and that any government put in place through the use of force will not gain their support.

These utterances commonly reflect a normative shift towards a logic of constitutionalism in regional and pan-African organisations since the turn of the millennium. The African Heads of States had in the Lomé Declaration of July 2000 jointly agreed to reject unconstitutional changes of government through non-recognition. The declaration moreover defined a set of measures, including sanctions, to counter any such developments on the continent, and to restore constitutional order wherever necessary.

The mechanism to prevent and address unconstitutional changes of government has further been institutionalised through the emerging African Peace and Security Architecture (APSA), which suggests that peace and security on the continent can be furthered through the strengthening of democratic governance.

South Sudan‘s frail constitution

Through the invocation of constitutional principles, Salva Kiir’s government has been bolstered by its neighbours and allies. Not only have the expectations of the armed oppositions for a quick and straightforward military takeover been reduced, but President Kiir has also used the discourse of constitutionalism to strengthen his own position. In an interview with the BCC, Kiir remarked that “if you want power, you don’t rebel.”

Kiir continued:

“When I came here I came not through the military coup, I came because I was elected by the people. Elections are coming in 2015. Why did he [Riek Machar] not wait, so that he goes through that same process? If he wins the elections, then he comes to this office.”

Drawing on the same discourses of constitutionalism and democratic governance, the presidency has been quick to dismiss the cause of the armed opposition. However, the claim that the current government is legitimate because it was put in place through a constitutional process and democratic elections must be treated with caution. The current constitutional discourse is at risk of omitting the deeper political tensions through which politics in South Sudan have been characterized since the Comprehensive Peace Agreement (CPA) of 2005.

Whoever invokes principles of constitutionalism in South Sudan must note that the country’s current constitution is a provisional one. Drawing on the interim constitution of 2005, the transitional constitution of 2009 is just as much a brief case document, written largely by legal experts and key members of the national government, without any meaningful popular consultation. As a product manufactured largely by technical experts, the transitional constitution lacks the political thrust of a document that may have been sincerely discussed within the political leadership and among the wider population.

The key principles of the current constitutional framework, such as an emphasis on political decentralisation, reflect overarching South Sudanese political creeds developed through the long durée of their political struggle. However, key questions concerning the devolution of power within the state, such as the relationship between the national and state government, or the role of the presidency, remained contested among large parts of the political elite throughout the transitional period. The current constitutional framework has largely been minted through the decades of conflict with the north. Lacking a negotiated ideational fundament, it provides a very limited basis for a much needed political and social contract.

The development of a permanent constitution through a comprehensive consultative process (including popular participation) started in January 2011, but has since then faced considerable challenges. Fraught with delay and lack of political commitment from the beginning, many commentators have criticised the limited inclusivity of the constitutional review committee, the lack of transparency and the slender commitment to public participation by many members of the government.

There is much to suggest that the members of the National Constitutional Review Commission (NCRC) have so far been unable to resolve key questions pertaining to the new political order, even before reaching out to the wider public. The weak constitutional basis of South Sudan’s current politics has moreover been further diminished through the past year’s political developments.

Changes to the constitutional framework made since the CPA have increased the powers of the president. The transitional constitution also provided the president with wide reaching powers, for example through the authority to dissolve state governments and declare the state of emergency without the consultation of the legislature. The use of these excessive powers has not only been met with great concern among civil society groups and the political opposition, but increasingly disgruntled parts of the political elite.

The authoritative reshuffle of the national cabinet by President Kiir in July and August is a point in case. Using the powers awarded to him by the transitional constitution, the President sacked unruly members of the government and political rivals, such as the former Minister of cabinet affairs Deng Alor and the former Vice President Riek Machar. Earlier in January 2013 Salva Kiir had already dismissed Lakes state governor Chol Tong Mayay, followed by the removal of Unity state Governor Taban Deng Gai in July 2013, without providing any good cause – Kiir didn’t even make an effort to justify his position along constitutional lines.

These manoeuvres have provided a suitable basis for the mobilisation of political and armed opposition among the wider population and have contributed considerably to the renewed split within the SPLM. Taben Deng Gai for example has taken a prominent role in criticizing the President Kiir’s authoritarian leadership before the onset of armed violence, and now represents forces loyal to Riek Machar in the cease fire negotiations in Addis Ababa. While a clear link between the outbreak of armed violence and the recent disgruntlement with Kiir’s manoeuvres will be difficult to prove, there is no doubt that Kiir’s former allies now pursue their political campaigns on military grounds.

Defending Constitutionalism, but for what?

The threat of a coup d’état is today much more real than at the outbreak of violence on 15th December 2013. However, to speak out against a possible unconstitutional change of government in South Sudan requires grappling with a more complex truth than the immediate danger of a regime change: That South Sudan currently has no constitutional order to rely upon. A proper political contract, known to and accepted widely among people of South Sudan, as well as enforced by all members of the government, was one of the central hurdles to take in the transitional period. Instead, the decay of South Sudan’s frail political order before its proper formation, has substantially contributed to the current crisis.

In the current situation, there is a danger that the new constitutionalism will only serve to bolster the position of the current elected office holder and to keep him in government. The new normative framework would then first and foremost provide a normative justification for a position which most of the regional partners hold because of their own economic, political and security interests: That Salva Kiir should stay.

If put to use this way, Africa’s move towards constitutionalism will serve as yet another strategy to secure the power of the powerful. It would declare illegal any attempt to change government by force, however good the cause. Such a situation can only be avoided if the rhetoric of constitutionalism is indeed accompanied by a stronger commitment to facilitate the negotiation of a real social and political contract for South Sudan. The Lomé Declaration has been clear about this necessity. The new negotiations in Addis Ababa will be a demonstration of which principle South Sudan’s regional partners really adhere to.

Andreas Hirblinger is a PhD candidate at Cambridge University.