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2011 | The Transitional Constitution of the Republic of South Sudan (2011)

The 2011 Transitional Constitution was created as the supreme law of the newly independent and sovereign Republic of South Sudan. In the Preamble the government expresses its determination to lay the foundations for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law and commits itself to establishing a decentralised democratic multi-party system of governance in which power shall be peacefully transferred. The government is committed to upholding values of human dignity and equal rights and duties for men and women.

This commitment is primarily enshrined in the Bill of Rights (see part 2, page 4). The Bill protects several fundamental human rights, including the right to life and human dignity, the right to liberty and security of the person (including the right to be free from arbitrary arrest and detention), the right to a fair trial, and the right to equal protection of the law. Of particular importance for our project is Article 16, the rights of women, in which it is stated that women shall be accorded full and equal dignity, equal pay and work and equal participation in public life. The Article also imposes the obligation on the government to promote women’s participation in public life, enact laws to combat harmful customs and traditions and provide for maternity, child, and medical care for pregnant and lactating women. An element of the promotion of women’s participation in public life can be found in Article 109(3), stating that the President shall ensure that at least 25% of members of the Council of Ministers are women. This same provision can be found in the Articles on the National Government (Article 142(3)).

On a less positive note, Article 67 provides for the immunity of members of the National Legislative Assembly and the Council of States. In the case of a serious crime, the appropriate House may waive the immunity of the member. This brings us to part 7 which contain the rules on the Judiciary. In this organ we also see the promotion of participation of women, Article 123(6) stating that there shall be a substantial representation of women in the Judiciary for the competence, integrity, credibility and impartiality of the Judiciary.

Part 13 contains special provisions on states of emergency and declarations of war. The president may in that case, on the basis of Article 188, suspend the Bill of rights. However, the protections of the right to life, prohibition on torture, right of non-discrimination, the right to litigation, and right to a fair trial may not be limited.

Lastly we would like to point out chapter IV (page 48-49). With this chapter the government commits itself to establishing an independent Human Rights Commission to, inter alia, monitor the application and enforcement of the Bill of Rights and investigate (on its own initiative or after a complaint) violations of human rights and fundamental freedoms.