Monday, 20 June 2011

Starter Constitutions - southern Sudan 4, USA 13


Lorianne Updike Toler

On July 9, the new republic of South Sudan will secede from the Republic of the Sudan in accordance with  a referendum held in January 2011.  The referendum was stipulated as part of the Comprehensive Peace Agreement between Sudan's two main waring factions, the Muslim-dominated Government of Sudan and the Christian-dominated Sudan People's Liberation Army, in January of 2005.  The new southern Sudanese country, yet to be named, will be governed by a transitional four-year constitution, whereupon, it is thought, a permanent constitution will be enacted.

Transitional constitutions are not a new concept for Sudan.  Since independence in 1956, Sudan has had three transitional and two "permanent" constitutions.

Sudan's checkered constitutional history and present disputes over the appropriate length for the  transitional constitution and whether it serves to further entrench current political power raises the question of how long a starter, or transitional, constitution should last to secure short-term stability while planning for long-term organic political maturity.  Do transitional constitutions undermine the concept of a written constitution altogether, in that, as in Sudan's case, the promise of a someday constitutional permanence is ever-fleeting beyond the horizon?

If the history of the United States can be of any help here, it should be noted that the "transitional," or starter, constitution lasted 11 years before a "permanent" one was drafted.  The Declaration of Independence required hasty work in crafting a government for the newly-independent 13 states, no longer colonies of Mother England.  Such were the circumstances for the drafting of the Articles of Confederation in 1777.

It may have been inevitable that this transitional constitution (although it wasn't considered transitional at the time) would be sub-par, given the exigencies of the circumstances.  It created a collection of sovereign states, impotent to tax (instead creating a convoluted system of "requisitions"), and barely able to maintain an army, much to George Washington's dismay.  The requirement that congressional acts garner unanimous support failed to adequately address debt obligations, issuing a standard currency, interstate and foreign commerce, and diplomatic relations.

Yet the Articles of Confederation allowed a new generation of ideas to percolate as individuals gained more than a decade of experience operating under state constitutions and the Articles.  It allowed minds like James Madison, Alexander Hamilton, Edmund Randolph, and Charles Pinckney (the younger) to mature within the post-colonial system such that they were prepared for intellectual leadership in a new regime yet young enough to agitate for change (at the Constitutional Convention, the ages of this small cadre of new leaders ranged from Madison at 36 to Charles Pinckney at 29).

Eleven years plus another two before implementation is a very long time for a transitional constitution.  The disadvantages to the United States included economic decline and even blood spilt.  Yet the advantages were that this period was long enough to allow natural processes to evolve to produce the new, permanent constitution.  In an age when everything and everyone seems to be in a hurry, perhaps the transitional period can be shorter and still produce effective and organic permanent results.  But then again, perhaps 13 years is not a bad life span for a "starter" constitution, so long as it is truly transitional and not a ploy to further cement power structures while holding off the promise of better, stable, and permanent government.

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