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Post-conflict constitution-making processes: Lessons and best practices for South Sudan

Sudán del Sur
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This report examines the experiences of selected countries, in so far as these might provide lessons and best practices for South Sudan as it envisages a process towards the adoption of a permanent constitution. It compares the constitution-making processes adopted in 21 jurisdictions from around the world – Africa (13 countries),
Asia (5), South America (1) and Europe (2).

The case studies were carefully selected, taking into account the extent to which their contexts resonated with that of South Sudan. The factors taken into account in this regard included, among others, experiences with armed conflict; ethnic tensions; militarization in the process of state building; and the presence of significant natural resources.

The study is presented in four parts. Section 1 introduces the study and provides a brief background to it. Section 2 contains a broad review of the selected case studies with individualized analyses of each of the jurisdictions, and at its end, a table containing summarized key facts about each profiled country’s constitution-making process.
The report then proceeds with analysis, in Section 3, of the specific issues and features which emerge from the different case studies. This Section also identifies trends and best practices in this regard. Finally, Section 4 reiterates the key findings of the study, and makes appropriate recommendations for the envisaged constitution-making process in South Sudan.

In the main, the study identifies the need for: i) legitimate and effective constitutionmaking bodies, including a Constitutional Commission (charged with conducting public education and consultation, and developing the first draft of the new Constitution) and an elected Constituent Assembly (tasked with deliberating upon the draft Constitution and adopting a final draft Constitution); ii) the adoption of broad guiding principles to inform the constitution-making process, which should also allow for judicial oversight over the process; iii) robust public participation and engagement, which should be preceded by thorough, indepth and widespread civic education, and which should enable and encourage the participation of vulnerable or traditionally excluded groups; iv) sufficient allocation of time for the process (1-3 years), and the separation of constitution-making from the negotiation of peace agreements; v) a limited role for the international community and expert groups so as to ensure a truly organic and home-grown constitutional document; vi) the adoption of the final draft Constitution by a referendum and vii) post-adoption safeguards, including continued civic education as well as judicial oversight over the new constitutional dispensation.