State Formation through Constitution Making in Emerging South Sudan: Unveiling the Technicity of the Rule of Law

Abstract

The paper focuses on constitution making as part of broader Rule of Law (RoL) frames in emerging South Sudan where negotiations on the mode of statehood are on-going by multiple actors with different claims of authority. The RoL comes with the inherent contradictions between its promises and the effects of practices pursued in its name. Driven by problematic underlying ideas of a ‘modern’ territorial state, the RoL promotion is nourished through ‘technical assistance’ of international actors coming with their manifold programmes, models and guidelines for establishing the rule of law and for producing a constitution. It will be argued that this ‘technical assistance’ regulates South Sudan’s state-formation process in a way that risks the chances of integrating the ideas and interests of the highly segmented society. The more so since international actors proclaim at the same time the idea of ‘local ownership’. The article sheds light on the resulting dilemma between the hasty production of a constitution and the idea of deriving ‘its authority from the will of the people’, implying the existence of a certain societal consensus. The makings of both, the pre-modelled Transitional Constitution of the Republic of South Sudan of 2011 (TCRSS), and the upcoming ‘permanent’ constitution, show that many actors are ousted from the decision making process. Moreover, TCRSS has already become a powerful legitimizing tool in the hand of a few political actors. Thereby, this instrument seems to rather fuel the political struggle as well as the violent negotiation. It will be argued that a slowing down of the constitution making without an immediate claim to consent on substance seems to be more sensible.