—Armi Beatriz E. Bayot, University of Oxford Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
Describing a state as failed, failing, or fragile has often been a prelude to international intervention. Such was the case for Sudan, where an internationalised peace process aimed at resolving a decades-long armed conflict eventually resulted in the 2005 Comprehensive Peace Agreement (CPA) between the government of Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (SPLM/A). The CPA provided for new government and security arrangements, elections, and the holding of a referendum in 2011 for southern independence. And this has likewise been the case for South Sudan. International actors have brokered multiple ceasefires and peace deals seeking to stem the seemingly intractable violence that has beset South Sudan since civil war erupted in 2013.
Among the indicators of South Sudan’s alleged failure as a state are its deep societal cleavages and the near-constant violent armed conflict over power among political and military elites. International actors, including the United Nations, are therefore keen to help South Sudanese finally draft a permanent constitution that would hopefully signal a transition from highly centralised, highly militarised government to broad-based accommodation and free and fair elections. Unless the constitution-drafting process for South Sudan avoids the ways in which international involvement exacerbated societal divisions in the past, however, the new constitution could merely codify cleavages that fuel armed conflict. External third-party involvement and support can strengthen the relative position of certain actors over others, thereby entrenching ethnic divisions and unjust power relations.
For instance, international actors were instrumental in cementing the SPLM/A in power, effectively side-lining other armed groups in southern Sudan and creating conditions for continued conflict even after South Sudan became independent. There was significant international support for the CPA from the United Nations and the governments of the US, UK, and Norway (the “Troika”). The CPA, however, explicitly excluded other armed groups and did not reflect the reality of power dynamics among armed opposition groups in southern Sudan at the time that it was signed. For instance, by some accounts, the South Sudan Defense Force (SSDF) was the third largest armed group in the south at the time that the CPA was signed in 2005, but they were excluded from the CPA negotiations not only because the SPLA leader John Garang refused to enter power-sharing arrangements with them, but also because the US and UK government regarded them as illegitimate actors for their association with the government of Sudan. The CPA thus alienated the SSDF and other Southern Sudanese who did not support the SPLA during the armed conflict. The continued support of the international community to the CPA and to the SPLA, to the exclusion and marginalisation of non-SPLA Southern Sudanese, cemented the SPLM/A’s monopoly on power in southern Sudan and later in the government of an independent South Sudan.
The exclusionary character of politics in South Sudan was entrenched in the Transitional Constitution of South Sudan (TCSS), which concentrates power in the executive. In a bid to undercut Riek Machar’s plans to run against him in the 2015 federal elections, South Sudan President Salva Kiir removed Machar from the vice presidency in July 2013, along with his entire cabinet. The consequent fracturing of the SPLM/A contributed to the eruption of civil war in December 2013.
The 2018 peace deal between the factions led by Kiir and Machar has led to an uneasy truce with the creation of a new unity government. A new constitution, particularly one that would provide for broad-based representation, separation of powers (and a taming of the executive), and decentralisation, is thought to be crucial in finally putting an end to the armed conflict in South Sudan. The constitutional drafting process was launched in May 2021, and the United Nations has committed to providing technical and logistical support to the process. A new constitution, of course, would not in itself transform underlying tensions stemming from bitter contests over power and resources. The fact that the current conflict is, in many ways, a wrestling for control from within the ranks of the SPLM/A itself suggests that any reform process in South Sudan, including the constitutional process, will have to address the current elites’ deep-rooted political and economic interests that cannot simply be magicked away with the stroke of a pen.
International actors assisting the drafting process, therefore, would do well to learn from the impact of internationalisation in South Sudan. International intervention in South Sudan tipped the scales in favour of one political contender, making prospects for inclusive and representative governance ever more elusive as the political frontrunner entrenched itself ever more deeply through continued political and material support from international actors – thereby deepening cleavages and exacerbating inter-group grievances.
The failed state paradigm has been employed by international actors in designing ways for so-called fragile or failed states such as South Sudan to move towards state success and stability. The “progress” of such states towards approximating a mythical, idealised model state is measured by indicators corresponding to factors such as cohesion, rule of law, and political inclusion. By using such indicators without taking into consideration the root causes of fragility and how such root causes, like ethnic strife or corruption, came to be, so-called stable states have been able to ignore how their own actions have contributed to state fragility. Colonisation, for instance, is rarely acknowledged as having a role in present-day state fragility.
Powerful international actors must reflect on how their actions, both in the distant and recent past, have contributed and continue to contribute to conditions of fragility and conflict. International actors in the South Sudan constitutional process must exercise caution and use a light hand lest they entrench and enable the SPLM/A yet again – or even help create a new political entity that is equally loath to share power.
Suggested citation: Armi Beatriz E. Bayot, Internationalised Constitution-Making in Deeply Divided States: A Note on South Sudan, Int’l J. Const. L. Blog, Jun. 9, 2021, at: http://www.iconnectblog.com/2021/06/internationalised-constitution-making-in-deeply-divided-states-a-note-on-south-sudan/
 See for instance Stefan Wolff, ‘State Failure in a Regional Context’ (46th Annual ISA Convention, Honolulu, 2005) available at <https://stefanwolff.com/wp-content/uploads/2011/06/state-failure.pdf> accessed on 8 July 2021
 The Sudan People’s Liberation Movement is the Sudan People’s Liberation Army’s political arm and is now the leading political party in South Sudan
 See Chapter I: The Machakos Protocol, Chapter II: Power Sharing, and Chapter VI: Security Arrangements, among others, in the Comprehensive Peace Agreement between the Government of The Republic of The Sudan and The Sudan People’s Liberation Movement/Sudan People’s Liberation Army dated 9 January 2005
 ‘South Sudan, The World’s Youngest Failed Nation’ (Opinion, The FT View, 13 July 2016) available at <https://www.ft.com/content/5a6b04de-48ea-11e6-b387-64ab0a67014c> accessed 8 July 2021
 Various ceasefires and peace deals were inked in 2014, 2015, and 2018; see Aly Verjee, Ceasefire Monitoring in South Sudan 2014-2019: ‘A Very Ugly Mission’ (United States Institute of Peace, 2019) available at <https://www.usip.org/publications/2019/08/ceasefire-monitoring-south-sudan-2014-2019-very-ugly-mission> accessed on 8 July 2021
 South Sudan Country Dashboard, Fragile States Index (The Fund for Peace 2021) available at <https://fragilestatesindex.org/country-data/> accessed 8 July 2021
 Francesca Mold, ‘South Sudan begins constitution-making process supported by the United Nations’ (UNMISS News, 26 May 2021) available at <https://unmiss.unmissions.org/south-sudan-begins-constitution-making-process-supported-united-nations> accessed on 8 July 2021
 Naomi Pendle, ‘Elite Bargains and Political Deals: South Sudan Case Study’ (UK Stabilisation Unit, February 2018) available at <https://www.gov.uk/government/publications/elite-bargains-and-political-deals> accessed on 8 July 2021
 John Young, ‘Sudan: A Flawed Peace Process Leading to a Flawed Peace’ (2005) 32 Review of African Political Economy 99, 110
 John Young, ‘John Garang’s Legacy to the Peace Process, the SPLM/A & the South’ (2005) 32 Review of African Political Economy 535
 Pendle (n 8)
 The SPLA and SSDF eventually agreed to integrate after John Garang’s death through theJuba Declaration on Unity and Integration between the Sudan People’s Liberation Army (SPLA) And the South Sudan Defence Forces (SSDF) dated 8 January 2006
 Pendle (n 8)
 See Article 101, Functions of the President, The Transitional Constitution of the Republic of South Sudan 2011
 Pendle (n 8); Douglas H Johnson, ‘Briefing: The Crisis in South Sudan’ (2014) 113 African Affairs 300
 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) dated 12 September 2018
 South Sudan has a long history of ethnic tensions. While there is an ethnic dimension to the fighting, especially since Kiir and Machar belong to the Dinka and Nuer ethnic communities, respectively, military alliances did not always follow these lines. See Clemence Pinaud, ‘Who’s behind South Sudan’s return to fighting?’ (Politics, South Sudan, 11 July 2016) available at <https://africanarguments.org/2016/07/whos-behind-south-sudans-return-to-fighting/> accessed on 8 July 2021
 Zach Nelson, ‘South Sudan’s decade-long transition: A country in search of a permanent constitution’ (CCSDD Blog, 5 March 2021) available at <https://ccsddinternblog.wordpress.com/2021/03/05/south-sudans-decade-long-transition-a-country-in-search-of-a-permanent-constitution/> accessed on 8 July 2021; see also Toward a Viable Future in South Sudan (International Crisis Group, 10 February 2021) available at <https://www.crisisgroup.org/africa/horn-africa/south-sudan/300-toward-viable-future-south-sudan> accessed on 8 July 2021
 See for instance Joshua Craze, ‘Why peace agreements in South Sudan intensify the war economy’ (29 July 2020) available at <https://blogs.lse.ac.uk/africaatlse/2020/07/29/why-peace-agreements-south-sudan-intensify-war-economy/#comments> accessed on 8 July 2021
 For an in-depth analysis on how the concept of state failure and fragility obscures the contribution of stable states to fragility, Raza Saeed, ‘The Ubiquity of State Fragility: Fault Lines in the Categorisation and Conceptualisation of Failed and Fragile States’ (2020) 29 Social & Legal Studies 767
 See for instance ‘British policy in Anglo-Egyptian Sudan bears some responsibility for the deep-rooted divisions between North and South’ (2 July 2012) available at <https://blogs.lse.ac.uk/africaatlse/2012/07/02/british-policy-in-anglo-egyptian-sudan-bears-some-responsibility-for-the-deep-rooted-divisions-between-north-and-south/> accessed on 8 July 2021