The Discourse on Federalism and System of Governance: A Critical Review of the Proposed Models and Benefits of Federalism to South Sudan

Discourse on Federalism

  1. Introduction

Many transitional societies are frequently fraught with political instability, quite often as a result of a myriad of factors such as gross institutional weaknesses, inadequate skilled manpower or as a consequence of having, at the apex of national power, freewheeling political operatives who lack the requisite moral discipline to lead for the common good. This probably explains why South Sudan has been bleeding profusely since violence broke out on December 15, 2013.

The ongoing conflict in South Sudan is something which has, however, been in the making for decades, precisely between 1983 and 2005 when the rebels of the Sudan People's Liberation Army (SPLA) ruled much of the region as a de facto government.[2] This intricate network of quick buck-minded aristocrats has also come to view itself as more equal and, hence, more deserving than the rest, culminating in the creation of an unparalleled scale of mega corruption, which has become the new normal among these elites,[4] hence, eternally ordained to enjoy all the gains of independence and freedom, including the right to wage war on their people if they so desire. So endemic is this sense of entitlement that in times of peace, the SPLM's ruling elites go in cahoots with one another to unconscionably plunder the country's resources. Similarly, when they disagree with one another, they resort to mass terror of mercilessly butchering their own citizens in order to keep a firm grip on power.[6]

This paper supports the idea of federalism in South Sudan, partly as a solution to the enduring ethnic conflicts and marginalization in South Sudan and partly for administrative efficiency. The paper consists of two main parts. Part I explores and examines the historical origins, evolution and motivations of federalism as a political concept. Part II applies the concept and practice of federalism to South Sudan. It starts by critically examining the three proposals for federalism. Finally, it briefly reviews the benefits of federalism to South Sudan. The paper concludes that the current system of 10-states is so defective that, in the event that it is not possible to create a more inclusive and equitable South Sudanese federal state, it is better, instead, to adopt a unitary system by making all the 79 counties of South Sudan answerable to the central government.

Part I:  The Historical Origins and Evolution of the Concept of Federalism

  1. Federalism in the Global Contexts

While some scholars observe that the concept of federalism is "as old as the Greek city-states that banded together to protect themselves against an external military threat,"[8]

 Nevertheless, it is widely acknowledged that "the first appearance of what can be called federal governments occurred in ancient Greece after the Peloponnesian war."[10]

These pre-historical conceptions of federalism did not, however, endure for at least two reasons. First such ad hoc or ephemeral arrangements were often intended to ward off impending military threats, as already pointed out. Second, such exclusive military obligations were often underperformed. This provides a plausible explanation for why the earliest federations suddenly declined among ancient city states "until the notion came to light again in the Middle Ages."[12] resulting in the replication of a concept that had largely fallen out of favour for centuries. For instance, "in northern Italy and southern Germany, Medieval cities formed military federations to resist the encroachments of nascent nation states, all of which were essentially imperial in nature."[14] 

The Medieval period also saw the rise of federal states in other parts of Europe, including the establishment of the Swiss confederation which brought its autonomous Cantons together in loose confederations for the purposes of trade and collective defence. Quite to its credit, only the Swiss Confederation, of all federations in the Medieval and Middle Ages, carried forward its confederate character into the modern world, though in a modified form. The Swiss federation probably survived due to its 'unique geographical advantage' which was essential for military defence and operations.[16] This demonstrates that, "although the notion of federalism has existed from ancient times, ancient and medieval federalisms …, succumbed rather quickly to imperial onslaught,"[18] Nevertheless, the European creation of satellite states or colonies in this manner was itself an idea borrowed from the Roman Empire which had several states in Europe, Asia and North Africa. By their very nature, however, imperial or colonial empires were unpopular, leading to their eventual decline and collapse, just like their medieval counterparts. Two main reasons account for this decline. First, "the imperial powers exhausted themselves in conflict with each other so that they were no longer strong enough to control their dependencies."[20] Second, "the dependencies had learned enough modern technology from their masters to challenge [their] imperial control,"[22] Federalism, as a result, became "the main alternative to empires…, a technique of aggravating large areas under one government…, and avoiding the offensiveness of imperial control."[24]

     2.3. Federalism in Contemporary Sense: The American Origins of Modern Federalism

Although the history of federations goes as far back as many centuries B.C., it is often asserted that the federal system in the form in which it is understood and implemented today is as old as the founding of the United States of America itself.[26]  As such, the American approach completely revolutionized the interpretation and practice of federalism in many parts of the world. That is why the American structure of federalism, it is argued, serves as an indispensable template for every single federation today. South Sudan too could take a leaf out of the American federal books.

Notwithstanding the American contribution to the development and application of the concept and practice of federalism, some scholars argue that it is not clearly known whether federalism in the form we know of it today can be considered an American invention rather than a transformation of an old idea.[28] That is to say, instead of relying solely on the American Federalist—often to the exclusion of other valuable sources—equal consideration should be given to complementary sources, such as those upon which some of America's Founding forbearers, particularly Alexander Hamilton, John Jay and James Madison, relied to enable them to articulate the notion of federalism in quite variegated ways that include but not limited to federalism as an ideology, as a political theory and as a practice of governance in a modern society.[30] The doctrine of divided authority in British Empire was predicated on the idea that legal and national authority could efficiently be apportioned between the reigning metropolitan leadership and the remote yet expansive geographical territory that fell under the former's jurisdiction.[32]

It follows that what became known as federalism in the American or modern sense was as much an American creativity as it was a pre-existing idea that required "only a minor adjustment … following independence, to establish the Constitution's two-level federal structure of state and national authority."[34]

For the proponents of the American origins of modern federalism, however, such a contention is clearly palpable an error, maintaining, instead, that federalism is exclusively an American idea which was developed to create a new Republic from scratch, a novel creation that symbolized "a fundamental break with the past."[36] The deliberation, drafting and adoption of constitutional promulgation of federalism in this sense produced an entire philosophy and a science of governance which provided "authority that undergirded the whole structure of the new [American] republic,"[38]

Whatever narrative prevails, a probably more accurate version as to the origins of modern federalism especially as it relates to the American context is one that sees the core concepts of federalism as animated by pre-existing ideas and the increasing belief in the virtue of shared governance in the form of "multiple independent levels of government [that] could legitimately exist within a single polity…rather than the continuity in the transition from the British Empire to the federal Republic." [40] only.

This would suggest that federalism was not a new American invention per se. Rather, it should be understood as an incremental development of an idea that had started many centuries before America's founding. It should be clear, therefore, that the American conception of federalism was simply an improvement of a pre-existing model that was given a new lease of life, having regard to the defects which led to the demise of imperial federations as discussed above.[42] A quick review of the global federal systems suggests that nearly 90 percent of the developed world is, or appears to be, governed by means of federation. Objects and Purposes of Federalism: Motivations and Functions

Federalism serves a myriad of social, economic and political purposes. First, in its more Western sense, a federation may serve as a means by which a polity brings together separate constituent units or subdivisions within a given territory so that the resultant state is strong enough to withstand any future subjection to imperialism or military aggression.[45]

This point clearly dovetails with some of the early motivations for federalism, especially in ancient Greece where the constituent cities "delegated to the federal rulers only the military authority…, such as whether or not to make war, conclude treaties and other affairs highly relevant to the military decisions."[47] due to fear of marginalization by the dominant ethnic or religious groups. If not remedied in advance, such fear, it was thought, could ultimately lead to political instability, if not an eventual demise of a state.The third motivation pertains to the desire for devolution of more political power to a large territory. This happens when politicians or rulers of constituent units, both for administrative effectiveness and efficiency, are interested in popular participation of the peripheral citizens in the political process.[49] 

  1. Contemporary Federal Models: Global Federations in Perspective
  1.  Constructing a Federal System and Distribution of Political Powers

James Madison, one of the most revered American Founding Fathers, is often credited with the popular phrase that governments are generally designed to "relentlessly pursue society's goals." The notion of society's goals, according to Madison, is not just limited to the desire to establish an enduring common defence and protection of life, liberty and security of the person of all members of a polity but also the general social wellbeing of all its citizens.[51]so that "a federal structure becomes a tool that can be used by the people to craft a more effective government, with some authorities assigned to the national government and others to the states."[53] This is because the virtues of a good federal system consists in identifying and developing broad based institutions that spell out sacred zones of autonomous activities for each federal unit. Failure to do that "may well serve no participating nation's long-term interests."[55] Nevertheless, "it is recommended that federal principles and institutions must be developed by well informed and "enlightened federal partners interested in developing a stable mutually beneficial federation for the long haul."[57]—so that neither is subjected or subordinated to the tyrannical will of the other—has been widely adopted and applied in different ways and contexts in order to fit different domestic circumstances. This, in other words, means that a federation designer cannot just pick up any specific "models off a shelf" and apply them to a specific situation arbitrarily, even if a country intends to adopt institutional structures of another or even if the adopting country has similar cultural or domestic conditions as those of the model country. Different times and circumstances may make 'similar' counties operate differently.[59]

How to form or create constituent units is a significant factor for consideration. In some early empirical cases, federations were established in a way that attempted to diffuse or neutralise ethnic constituent units, so that each constituent unit was made up of people of diverse ethnic or religious backgrounds. That is, in order to prevent the establishment of the domination of one ethnic group over another, this strategy was applied with the intent to weaken ethnic nationalism by designing federal units in such a way as to prevent distinct ethnic minorities from becoming significant majorities within their respective constituent units (states).[61] To implement it, the strategy may involve administrative transfer or physical relocation of certain groups to a different constituent unit, again, in order "to proliferate, when possible, the multiple points of power, away from a focus on ethnic nationalism."[63] 

The neutralisation policy was ultimately jettisoned (both in India and South Africa) in favour of ethnic constituent units, for at least two reasons. First, individuals and groups have sentimental attachment to their own natal homes and villages. Any attempt to physically transfer people from one location to another for the purposes of diffusing their communal solidarity is often seen as an attempt to destroy the fundamental character and disposition of a communal life and culture. That is why the neutralisation strategy is not just likely to be resisted by those affected but the ethos surrounding such a decision is highly questionable. Second, the question of compensation and its adequacy poses a major difficulty. If compensation is accepted, then the corollary to that premise is how those who have been consequently affected should be compensated (whether as individuals or as households) and how much compensation would be adequate, if found to be eligible. These are some of the legitimate questions surrounding the practicality, or lack thereof, of such a strategy.[65]The goal is to ensure that all communities in a given federation are adequately represented and empowered to run their own affairs at local levels. This has the overall effect of "reducing inter-ethnic tensions by giving each group a sense of security in protecting its distinctiveness."Forms and Models of Federal Arrangements and Division of Powers

Federal arrangements can be applied in a variety of forms with variegated degrees of centralisation or decentralisation, depending on what bona fide drafters expect to achieve for the society as a whole. This shows that a federal system must be based on clear and well thought-out rationale. Besides the centrality of overriding considerations (such as ethnic, racial, religious, cultural or linguistic composition of society) to the formulation of a federal system, federal designers must take into account other equally important factors such as population density, the interests of common citizens, financial arrangements, executive institutions, legal procedures for settling conflicts, as well as amendment procedures. A good federal system is one that reflects the society's unity in diversity without sacrificing the importance of the need to create just institutions for the common good for all its individual citizens and groups.[68]  

Where such a design cannot be achieved because a minority is sparely intermixed with the majority, as is, for instance, the case for Tutsis in the Hutu dominated Rwanda, a consociation approach should be devised. How much power is allocated and exercised by each level (between central and constituent units), depends on the desired outcome that balances both the desire for self-government and the need for a united federation in diversity. A good federal system must, therefore, carefully strike a delicate "balance between unity and diversity… [and] between independence and interdependence of the federal and regional governments in relation to each other."[70] A good example is the collapse of the former federal Republic of Senegambia; an erstwhile federation formed a result of the political union between the modern republics of Mali and The Gambia in the 1980s.[72]

Part II: The Application of the Concept and Practice of Federalism to South Sudan

  1. Resurrection of the Federalism Debate in South Sudan

The ongoing conflict in South Sudan has generated a contentious but necessary debate as to the system of governance which South Sudan should adopt to address issues, among others, of governance and skewed dispensation of resources which have often led to conflicts that follow ethnic fault lines. The discourse on an appropriate system of governance in South Sudan is, however, not a novel intellectual undertaking, since it started many years before the Sudan gained independence from Great Britain in 1956. That is why this discourse, of which the federalism debate is a subset, has a historical pedigree in the political thought of the South Sudanese society and is as old as the conflict between southern and northern Sudan itself.[74]

But, as critically and widely observed in South Sudan's political circles, the rebels' initiative is not just as much arbitrary as it is impoverish but is also quite fundamentally a recipe for further violence. A number of reasons support this contention.

First the proposal is not supported by popular consensus. It is a cardinal principle of democracy and statesmanship that a truly free, liberal and democratic society must be based on the indispensable principle of popular consultation. Yet, to the extent that in the 21st century, the rebels still fantasize the highly chastised legacy of colonialism and elevate it over and above the consent of the people, one is left to wonder if there is any plausible philosophical script that would support the rebels' initiative which, evidently, overrides the will of the people of South Sudan or at least a portion thereof. This is clearly an oxymoron for a party which holds itself out as a champion of democracy, yet has the audacity to overhaul an existing system of governance and establish a new one in wanton disregard for the will of the South Sudanese people. Indeed if the rebels' concern for overhauling the current system of 10 states is to create a more inclusive and equitable system, then, ironically, their proposal for a 21 state-system as part of the planned federal structure is comparatively worse in view of the absence of popular mandate. One cannot simply copy and paste a colonial model lock, stock and barrel without providing legitimate reasons. So much has changed, since the British left in 1956, in terms of demographics, socio-political interests and relationship among various ethnic groups in South Sudan. For instance, it is absurd for the rebels to divide Jonglei into 4 states of Bieh, Jonglei, Fangak and Pibor while Aweil (which is probably the most populous State in South Sudan) remains undivided.

The second defect—which flows into the first reason—as to the implausibility of the rebels' initiative is that this proposal is not supported by any rational approach to federalism as a political concept and practice. This is not to say that the rebels' case for federalism is reprehensible. To the contrary, the idea of creating more (ethnic-based) states in a South Sudan that is truly federal in character is totally plausible, if not, in fact, the best way of resolving the issue of enduring ethnic conflicts in South Sudan. After all, this strategy has been applied with tremendous success globally. One cannot simply, however, overhaul an existing system without substantiation. Copying the administrative structures of British colonial authority in the manner the rebels did appears to suggest that either Britain was/is always right or that nothing has changed since they left in 1956. It is a disservice to the people of South Sudan for any individual, political organization or group to simply overhaul an existing system and, in its place, create a new one without justification or popular consent.

In a free and liberal democratic society, the primacy of ascertaining popular consultation—and especially the views of those who are directly affected by a specific public policy program—cannot be overstated. This is even more imperative in the context of federalism, in which popular consultation is required to ensure that (distinct ethnic, religious, linguistic, cultural and political) constituencies which may be designated as belonging to a particular constituent unit are fully apprised of the consequences—especially how their interests will be affected in the face—of such arrangements. This is why, in the context of South Sudan, federal arrangements that lump together ethnic constituencies with adverse interests or those that are culturally and political hostile to each other is a recipe for further political instability.

It follows that, to be considered fair and just, any proposed political arrangements or institutional policies must be approved by those who are directly or indirectly affected. There is no such a thing as implied or tacit consent. Rather, as Alistair Macleod rightly argues, "the actual [not implied] consent of affected parties is a necessary condition of the justice of institutions."[76] This does not appear to be the case with regard to the rebels' proposal.

Such are the grounds upon which the rebels' manifest intent to slice and dice the Ngok[78] Dinka into tiny sections—in federal arrangements that make them insignificant minorities in putatively Nuer dominated states—should vehemently be rejected, for such arrangements does not address the issue of ethnic domination, inequitable dispensation of political power and economic resources. The Ngok and Padang Dinka groups are also South Sudanese and must treated as equally deserving as other citizens. When an individual or a group of people is not treated as equally deserving, the implication is that this that individual or group, to the extent of that privation, is unfree by reason of being coerced to accept a system that does serve their interests.[80] No sections of a political community, therefore, should be expected to accept inequitable institutional arrangements—as is the case with regard to the rebels' proposal—which are so unjust as to be void ab initio. No single citizen or group of citizens, a community or political organisation should be sacrificed or expected to receive less treatment than others in order to, as John Rawls says, satisfy or maximise the interests of other citizens, even if such a sacrifice improves the overall social welfare. "When society is conceived as a system of cooperation designed to advance the good of its members, it seems quite incredible that some citizens should be expected…to accept lower prospects of life for the sake of others."[82] That is why no single political party or a segment of the national population should usurp the role of the entire nation or purport to act on behalf of a segment of the state. The management of the nation is a central thesis of the people's mandate; a joint enterprise, that is. Hence, neither the SPLM, another political party nor any group of people, be that an ethnic or otherwise, should ordain itself or claim to have the legitimacy to distribute national resources, political power or establish a system of governance or determine how such primary goods are to be doled out to everyone else in the country. "What a person gets, he [or she] gets from others who give to him [or her] in exchange for something."[84]

The JCE's proposal took, as its starting point, the 2014 Agreement signed between the Murle militia (then known as Cobra Faction under Major General Yau Yau) and the Government of South Sudan after three years of protracted civil conflict. In fighting for their community's regional government, the Cobra Army argued that their community was unconscionably marginalized by both the Central and state governments. In their view, the only remedy that could be had was to create, within the existing sovereign nation of South Sudan, a state for Murle, Anywak, Kachipo and Jie, the four ethnic groups which were collectively administered as part of Pibor District at the time of independence in 1956. The agreement between the Governments the Cobra rebels ultimately settled for the Greater Pibor Administrative Area (GPAA) which gave the Murle and other minorities the right self-rule separate from Jonglei State.[86] They also opine that the Murle initiative was "indicative of the rejection of the ten states inherited from the Government of Khartoum."[88]

In a manner that parallels the line of reasoning of the SPLM-iO's proposal but with quite a reasoned exposition, the Elders argued that "the choice to opt for an ethnic administration, can easily be adopted from the past colonial administrative set-up of 21 districts, as they stood on 1st January 1945. "These districts were wholly or partially set up on ethnic arrangements, except in a few cases where some minority communities were put together with larger communities for possible governance conveniences which might have now negatively or positively changed with the change of communities' attitude toward each other."[90] After an elaborate and considerable discussion in relation to specific conditions favourable to South Sudan as well as taking a broad view of different models of federal systems worldwide, the Elders settled for a detailed proposal for 23 states (see the map below).

Figure 1. This map is a rough estimate of boundaries of the new proposal for states by the Jieng Council of Elders.

As part of a broad-based conflict management strategy, the approach to federal arrangements taken by the JCE is markedly different from that of the rebels' on substantively different grounds. First, the Elders put forward a rational approach that is universal in character and content, with the view to ensuring that such arrangements would serve as a remedy for enduring ethnic conflicts among South Sudanese. Second the Elders' proposal was seemingly made after a wide range of consultations, with elders from other communities, especially Equatoria, reportedly providing their perspectives on many issues, including what the names of their respective states would be referred to. If true, then the Elders' approach is neatly in keeping with the idea of popular consent. This however, does not mean that their proposal is immune from modification upon further deliberations. The most attractive feature of this proposal is its precise identification of the fundamental South Sudanese problem, that is, its ability to give contents to these arrangements, primarily as a function of localism, as defined by South Sudan's domestic condions.

                  

  3.3.  Dr. Deng Atem de Garang's Proposal

Notwithstanding the fact that there is a vocal minority contending against an ethnic-based federal system, the above rival proposals have since led to a slew of reactions and responses from the general public, particularly the Diaspora South Sudanese communities, with an overwhelming number of commentators agreeing with the need for a federal system based on ethnic arrangements.[92] He further argues that such recognition is not just important but a necessary way to circumvent, from the outset, "a system that might plant an unending notion of a tribal domination over others."[94] He then discusses at length the philosophy of federalism while analysing the proposals made by both the rebels and Jieng Elders.

In the end, Deng's proposal jettisons the rebels' initiative for at least two reasons. First, he hits the right note as to the rebels' most grievous fault: lack of substance in their proposal. In so questioning, Deng impliedly underlines that the legitimacy of any reasonable public policy depends on the intelligibility of its philosophical rationale. Second, Deng criticises the rebels for both short-sightedness and what he sees as a recipe for further ethnic domination which would, in turn, represent just more of the same—instability. In the same breath, Deng goes on to outline his reservations on the Jieng Elders' proposal, the chief of which is the reduction of "the number of districts that could potentially become states in former provinces of Equatoria…,"[96]

Thus, "instead of 23 states," Deng's proposal creates 24 potential states plus the federal district at Ramciel.

  1. Merging the three Proposals

In light of the above three proposals, this paper does not intend to further engage the rationalization of the basis upon which a South Sudanese federal system should be established. Suffice to say, however, that while Deng Atem's concerns about the merging of Yambio and Tumbura is valid, I contend that our federation should not exclusively be based on former British colonial districts. That is, since it is the position of this paper that the core tenets of our federal system, must most principally, be predicated on ethnicity, it is not necessary to make Yambio and Tumbura separate states as both counties/districts are inhabited by one ethnic group: Azande. Nevertheless, there is no harm either in making the two as separate states.

What should be underscored, for the purposes of this discussion is that "the kind of government required for a developing nation is a definite species of social structure that has its own special conditions."Constructing Federal Constituent Units in South Sudan

 

  1. Introduction

As opposed to provinces, counties, cantons or such other forms of federal nomenclature used in other federations, South Sudan has settled for states as the names by which its constituent units are to be referred. This does not, however, mean that future federal arrangements cannot decide on a different designation.

What is important is that there are certain domestic conditions which are quite specific to South Sudan and must be considered when constructing the South Sudanese federal state. For example, the distance from the centre of power, Juba, could be an important factor for consideration. The relevance of the distance from Juba to a federal-policy maker should be summed up by the mantra that the further away from Juba the area is, the more likely that the area may be destined for economic marginalisation. This appears to be the fate to which most northerly and easterly regions of South Sudan are consigned, making them special needs regions. Such special needs areas deserve a special administrative status, such as making them autonomous states or territories to cater for those special needs and to ensure that their special needs are not crowded out by the sea of intersecting and competing national interests.

           

  1. Factors to Consider when Creating Federal Units

While the foregoing has, in-text, underlined the importance of ethnicity as the most critical consideration in creating constituent units (states) in South Sudan, the three following factors are as equally important.  

                                

  1. Ethnic Compatibility

 

Ethnic compatibility closely relates to the dimension of ethnicity which is a central factor in federal arrangements as has been discussed throughout the paper. As used here, the phrase "ethnic compatibility" refers to the ability of two or more different ethnic groups to peacefully co-exist with one another without any major confrontation, such as the one seen among the Dinka and Nuer in South Sudan. The relevance of this factor to the construction of appropriate federal unit is that where it is impractical for a minority group to constitute a state or territory of its own for patent and legitimate reasons, including lack of numerical weight and/or adequate landmass (discussed below), then it is not inadvisable for that group to be made part of a state with a group with which it has no history of hostility. For instance, the Maban and Dinka in Upper Nile State, the Dinka and Luo in Aweil can amicably form a viable state, not due to complete absence of ethnic conflict between each of these two sets but because the conflict among these groups exists at a relatively manageable level. It is, however, worth repeating that even in a state in which ethnic components are perfectly compatible, the minority should be empowered to exercise a veto power over state policies and laws that substantially interfere with their collective rights as a community.

 

  1. Population

 

One of the most important considerations in designing appropriate constituent units for a given federation is the population size for each unit (state, county, province, region etc.). In certain countries, some constituent units are far larger than most or even all other constituent units combined, as is the case for the Belgium's Flemish Region which constitutes about 58 percent of the Belgian population.[99] This numerical disproportionality often becomes a source of tension and conflict and must be addressed head on especially in relation to financial arrangements and distribution of other resources.

Like ethnicity, however, this factor, in and of itself, is not a sufficient condition to conclusively determine whether to permit a particular population, ethnic or not, to constitute a state on its own. Furthermore, there is no required numerical figure that should constitute a state, since many common elements, in addition to those that are domestically unique to a specific federation, form part of the broader equation. Each situation must be assessed on a case-by-case basis in order to produce the most desirable outcome for each federation.

In respect of South Sudan, the use of population as a necessary factor in designing states is a critical one. Some commentators, especially on social media, have raised genuine concerns about the issue of population, with many arguing that South Sudan's population is too small to constitute a viable federal state. The implication of this argument is that a federal system is appropriately suited for more populous states such as India and the U.S.

What these commentators seem to forget or deliberately neglect to consider is that the United States, for instance, became a full-pledged federation at a time when its entire population stood under four (4) million people. Of this population, more than 675, 000 people were slaves, each of whom was only considered as 3/5 of a human being.Area Size, Economic Viability and Distance From the Capital

Another important factor to consider in constructing constituent units is geographical landmass (area occupied by a population). This is not only because, as Klein observes, "the geographical vastness and concentration of populations… have made federation a natural form of political organization"[102] So construed, a federation should be understood as "a modelled creation cobbled together out of a mix of necessity (the existence of the states) and theory (the belief that a republic could not easily be maintained across a large territory."[104]

Similarly, a small community that is geographically located far away from the capital and is likely to be marginalized because of such a geographical misfortune should be made a state, as long as it has adequate resources, such as arable land, minerals or water resources, so that it is able to raise taxes and sustain its own self-rule.

  1. Benefits of Federalism to South Sudan

The proposal for an ethnic federalism which may partly serve as a means for self-government and partly as an ethnic conflict management strategy in South Sudan is not coterminous, and should not be confused, with Kokora.Federalism Spurs Economic Growth and Development

 

Experience shows that federalism fosters economic growth and efficiency, especially as regards collection of taxes and protection of investments—foreign or domestic.[107] economically. In connection with this point, there is a common observation that federalism "achieves economic efficiency by allowing subunits of the polity to compete for valuable resources."[109]

 Creating a chain of interconnected administrative layers (multiple centres of power) through a federal system has the potential to minimize the magnitude and impacts of administrative errors. To wit, peripheral errors committed by local authorities often tend to have minimal adverse effects on the population than errors committed at the centre (federal government). Furthermore, because they are often in touch with the grassroots, peripheral authorities are more responsive to administrative errors which, as a result, are more easily discerned and property fixed before they spin out of control and cause a widespread damage.[111] The logic as to the nexus between federalism and economic development is that federalism tends to eliminate or minimise the tyranny of certain economic ideas, a practice inherent in most unitary states. In this sense, not only does a fair federal system encourage constituent units to devise economic mechanisms that suit their regions, it also eliminates the idea of "one-size-fits all"[113] South Sudan stands to benefit enormously from a good federal system as do Ethiopia and Nigeria after they move to adopt federalism.

  1. Federalism as Instrument of Accountability and Popular Governance

The concept of popular sovereignty involves vesting of the decision-making power in the majority (hoi polloi) rather than in a few (oligarchs). A people-centred governance is based on the free consent of people. That is why in its practical form, popular sovereignty is coterminous with democracy in the sense that the government is established by and run by the people for the people through their elected representatives.

One of the major challenges associated with the idea of a centralised system of governance is that the state proves "to be too large to serve all the desires of its citizens."[115] Instead, people need a good and responsible government that represents their interests.

But good and fair representation and accountability are two sides of the same coin, considering that "elected leaders are more likely to represent their constituents faithfully when they know they are held accountable for their actions."[117]

Properly designed, thus, a federal system in which powers are properly distributed to multiple centres of political authority would serve to enhance political accountability in light of the fact that "citizens are more likely to see the effects of government action, at the local level and respond accordingly in the ballot box."[119] As well, a well-crafted or devolved system is more likely to ensure that government officials are restricted from stealing unscrupulously from their own citizens.

Finally, the nexus between a federal system and accountability emanates from the proposition that a federal system increases participation of the citizenry in the political process. This enhances collective decision-making and improves the quality of democratic outcomes as well as the quality of the elected representatives.[121] consists in the twin concepts of popular sovereignty and accountability (transparency). Mired in grand scale corruption and political incompetence, federal system has the potential to bring accountability to South Sudan in variegated ways.

  1. Conclusions and Recommendations

This discussion makes a case for federalism as a solution to enduring ethnic conflict, marginalization, economic underdevelopment and lack of popular accountability in South Sudan. So important is the need to overhaul the current system that if a federal system in the form suggested herein cannot be implemented, it is better to opt for a more centralized system, instead. In this case, the central government would have direct supervisory authority over counties, instead of state governments.

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[2] Pinaud,"South Sudan: Civil War…," supra note 1, 205; Also see Norbert Elias, The Courtisation of Warriors 

   in Early Modern Europe: Issues and Interpretations (Oxford: Wiley-Blackwater, 2008) 385-397.

[4]But this view is false. A vast majority of South Sudanese people were, in one way or another, full-participants in

  the liberation process. That is why it is misleading for any individuals or groups to think of themselves as

  liberators and of others as liberated, by default. South Sudan's became independent on July 9, 2011 after an

  internationally supervised referendum provided for in the CPA.

[6] Andrew Lynch and George Williams, 'Beyond Federal Structure: Is A Constitutional Commitment to Federal

   Relationship Possible?" (2008) 32 UNSW L. J., 395-424.

[8] See Daniel J. Elazar, Federalism: An Overview (Pretoria: HSRC, 1995), 19.

[10] Ibid.

[12] Ibid.

[14] Elazar, Federalism…, supra note 8, 20.

[16] Ronald L. Watts, Comparing Federal Systems, Third Edition (Montreal: McGill UP, 2008), 3.

[18] Ibid., 3.

[20] Martijn Van Der Burg, "Transforming the Dutch Republic into the Kingdom of Holland: the Netherlands between

   Republicanism and Monarchy (1795–1815)" (2010) 17 Euro. Rev.Hist.151-170.

[22] Ibid.

[24] Ibid.

[26] Alison LaCroix, The Ideological Origins of American Federalism (Cambridge:  HUP, 2010), 1.

[28] Ibid.

[30] Ibid., 3.

[32]LaCroix, The Ideological Origins…,supra note 26, 3.

[34] Watts, Comparing Federal Systems, supra note 16, 2.

[36] U.S. Term Limits, Inc. v. Thornton (1997) 514 U.S.779, 838 (Kennedy J., concurring opinion), 2-3.

[36]LaCroix, The Ideological Origins…,supra note 26, 2-3.

[38] Ibid.

[39] Ibid., 6.

[41] Ibid., 11.

[43] See Forum of Federations: "Federalism By Country" (2015), available online at:

    http://www.forumfed.org/en/federalism/federalismbycountry.php (retrieved on February 1, 2015).

[45] Dele Babalola, "The Origins of the Nigerian Federalism: The Rikerian Theory and Beyond" (2013) 8 Fed. Gov.

    43 at 45.

[47] Watts, Comparing Federal Systems…, supra note 9, 180.

[49] Riker, Federalism: Origin…, supra note 7, 9 and Watts, Comparing Federal Systems, supra note 16, 1-2.

[51]Jenna Bednar, The Robust Federation: Principles of Design, Oxford: OUP, 2009), 5.

[53] Ibid.

[55]David W. Carrithers, Michah A. Mosher & Paul A. Rahe, Montesquieu's Science of Politics; Essays on the Spirit

   of Laws (Rowan: Littlefield Pu. Inc., 2001), 256.

[57] Watts, Comparing Federal Systems…, supra note 34, 1.

[59] J. Broschek, "Reforming Federal Systems : Insights from Australia, Canada, Germany and Switzerland"

    (2014) Cahiers du CÉRIUM Working Paper No3., accessed February 1st, 2015),

    http://cerium.umontreal.ca/fileadmin/Documents/FAS/CERIUM/Documents_PDF/2-Recherche/6-Cahiers/Cahier03.pdf.

[61] Watts, Comparing Federal Systems…, supra note 16, 76-77.

[63] Ibid.

[65] Watts, Comparing Federal Systems…, supra note16, 77.

[67] Akhtar Majeed, Ronald L. Watts and Douglas M. Brown, Eds. Distribution of Powers and Responsibilities in

   Federal Countries, Forum of Federations and International Association of Centres for Federal Studies, Vol. 2

   (Montreal: McGill UP, 2006), 3.

[69] Ibid.

[71] Kurtz, Donn M. (1970). "Political Integration in Africa: The Mali Federation". Jl Mod Afri Stud 8 (3): 405–424.

     doi:10.1017/s0022278x00019923, also see  Anthony Appiah, et al, Eds.,  Africana: The Encyclopedia of the

     African and African American Experience (Oxford: OUP, 2005) at 341.

[73]Douglas Johnson, "Federalism in the History of South Sudanese Political Thought," RVIR Paper 1, accessed July

    20, 2015, http://www.riftvalley.net/publication/federalism-history-south-sudanese politicalthought#.VM7QA2d0yih

[75] A.M. Macleod, "Rights, Law and Justice," in Anne F. Bayefsky, Ed. Legal Theory Meets Legal Practice

    (Edmonton: Academic Printers and Publisher, 1988), 27.

[77] The affected Ngok groups are mainly the West Ngok (of Pariang/Panaruu and Aloor/Biemnom) and East Ngok

    (of Paweny/Pigi and Lual Yak/Baliet) Dinka.

[79] I. Berlin, "Two Concepts of Liberty," in Isaiah Berlin, Ed. Four Essays on Liberty (Oxford: OUP, 1969), 2-3.

[81]John Rawls, A Theory of Justice (Boston: HUP, 1971) Section 29.

[83]Ibid.

[85]Sudan Tribune: "South Sudanese Government, Yau Yau Rebels Sign Peace Deal" (2014),

    http://www.sudantribune.com/spip.php?article50935 (retrieved February 1st, 2015).

[87]Ibid.

[89]Ibid.

[91] Deng Atem de Garang ("Dekuek"), "Towards a Viable State: Federating South Sudan," Facebook Post," (2014).

    Note that Deng's Personal Webpage on social Media was taken down at the time of this writing, though the

    author was already in possession of a hardcopy.

[93] Ibid.

[95] Deng Atem, "Towards a Viable State…."

[97]Lucian W. Pye, The Problem of Fitness for Self-Determination in Modernizing Nations (Englewood Cliffs:

   Princeton Hall Inc. 1964), 27-8.

[99] Statistics Canada (2015) Government of Canada, available online at: http://www.statcan.gc.ca/pub/91-215-x/2012000/t583-eng.htm (retrieved on July 14, 2015).

[101] Watts, Comparing Federal Systems…, supra note 16, 33.

[103] LaCroix, The Ideological Origins of American Federalism…, note 26, 2.

[105]The Term Kokora is a Nilotic (Bari) word for regionalism. It was adopted in the 1980s in Southern Sudan during

 the leadership of James Tumbura. Following the division of Southern Sudan into three regions by the then President of the Sudan, Jaafar Muhamed Nimeiri, Kokora's main objective was to ensure that every Southern Sudanese would reside in the province/region of their birth. While Kokora did not ban outright the constitutional right of mobility and residency anywhere in the country, it was understood that no Southern Sudanese born in a different region would have the right to run for an elected office anywhere other than where he or she was born. As practiced anywhere around the world, ethnic federalism, on the other hand, suggests that each geographically distinct community or a combination of ethnic groups that are, generally speaking, compatible would form self-government as part of the federation. However, the main concern of this discussion, which is shared by many South Sudanese, is about creating a South Sudanese federation that is more inclusive is more inclusive. The aim is to alleviate the effects of ethnic discrimination and to make sure that no ethnic group is left behind in this century.

[107] Ibid., at 6.

[109] Ibid.

[111]UNDP, Human Development Report (New York: OUP, 2006).

[113] Gary Charness, Uri Gneezy and Michael A. Kuhn, "Experimental methods: Extra-laboratory experiments-

     Extending the reach of experimental economics" (2013) 91 JEBO. 93, 95.

[115] Ibid., at 6.

[117] Ibid.

[119]New York v. United States (1992) 488 U.S. 1041

[121] Thomas H. Odom and Marc Baluda, "Development of Process-Oriented Federalism: Harmonisation the Supreme

       Court's Tenth Amendment Jurisprudence from Garcia through Printz" (1999) 31 ABA., 993-1032.


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