Constitution-making in post-conflict transitions: Towards a transformative judicial design

This chapter explores the role that South Sudan’s judiciary could play in safeguarding the country’s constitutional guarantees and transformative process. It makes the case for the parties to the Revitalized Agreement on the Resolution of Conflict in South Sudan (R-ARCSS) to accord a central place to judicial reform in the making of the ‘permanent’ constitution. The chapter examines the challenges that affect the performance of South Sudan’s judicial system and offers suggestions for consideration in the drafting of the constitution. It argues that the current judiciary has fallen short of fulfilling its constitutional duties. The reasons for this include a lack of judicial independence, which results in interference by the executive branch, and the inadequate attention paid to the appointment of judges; in addition, language barriers in the judicial system undermine judges’ ability to deliver quality judgments. While the R-ARCSS stresses the need for improving infrastructure and building the capacity of judges and court personnel, much work remains to be done. Overall, if the judiciary is to discharge its mandate effectively, the future constitution of South Sudan must ensure that the judiciary is designed in such a way as to enhance access to timeous and impartial justice.