Legal Transformation in Northern Africa and South Sudan

Foreword

In 2011, two significant historical events occurred on the African Continent, namely, the popular uprisings in North African countries, which have widely become known as the ‘Arab Spring’, and the formal independence of South Sudan, Africa’s youngest state founded in July of that year. Both major developments – the upheaval and the referendum for independence – initiated various legal processes in response to the countries’ respective political and socio-economic challenges. Despite different evolutionary concepts, the political upheavals in Tunisia, Egypt and Libya are mirrored similarities to that in South Sudan in how to deal with institution-building, constitution-making and its process, the role and rule of law in a nation-state, national and international conflict resolution mechanisms, and the involvement of a multitude of actors in the process of legal transformation.
The different evolutionary concepts necessitated a division of the volume into two chapters. Chapter II deals with selected issues of legal transformation following the ‘Arab Spring’. In this chapter the legal transformation focuses on three countries. The discourse does not, however, limit itself to the important and highly debated constitutional developments and the constitution-making processes on the national level in Egypt (Katrin Seidel & Naseef Naeem), but also critically pursues questions of external assistance for democratization processes in view of international law and political practice applicable to the case of Libya (Thilo Marauhn). On the way to a democracy, each nation-state must find its own solution for its transition. A crucial fact of the transitory process is not only the need to face the past, but also to consider prospects for the future. Proceeding from this assumption, social reconciliation and economic and political reform are argued by delivering legal and political insights of Egypt’s transitional justice policy dealing with alleged crimes of the past (Hatem Elliesie), the judicial reform in Morocco (Carolyn A. Dubay) and the challenges of restructuring an economy under the rule of law in the aftermath of the ‘Arab Spring’, as well as possible solutions for national economies in the future (Achim-Rüdiger Börner).
Chapter III focuses on specific national and international legal aspects of South Sudan after its secession from the former Republic of Sudan. Since a constitution is generally a set of fundamental principles according to which a state is governed, the second chapter starts off with an article on the constitutional development of the newly independent state (Katharina Diehl & Daniel Gruss). Taking the long-lasting history of war, internal violent conflicts and the current climate of social interaction of South Sudanese people into account, institutions of conflict transformation and mechanisms of conflict management as implemented by the Transitional Constitution of the Republic of South Sudan (TCSS) will be stressed in a further essay (Ingo Henneberg & Friedrich Plank). The chapter’s third and fourth contributions discuss the connection between law and politics in the transformation from conflict to peace. The third contribution in this context focuses on Abyei, a border region between South Sudan and Sudan. The aspects of why and how the parties initiated and dealt with the arbitration procedure are highlighted (Cindy Daase). The fourth contribution argues that comprehensive National Constitutive Dialogue (NCD) might help in the transformation, from a liberation movement to a legitimate, democratic state (Mehari Taddele Maru).
The contributions in this volume are mostly papers presented at the joint conference of the Gesellschaft für afrikanisches Recht (African Law Association) and the Max Planck Institute for Comparative Public and International Law, held in Heidelberg (Germany) on 4–5 November 2011, and the annual conference of the Arbeitskreis Überseeische Verfassungsvergleichung in Limburg an der Lahn (Germany) on 5–7 July 2012. As academic texts usually go, the progress and developments that have occurred in the recent months have made it a challenge – between the writing/printing and publication – to keep this volume absolutely up to date.
We would like to thank the authors for all their work and energy in light of the rapid changes and developments that have been occurring in this field recently. The timely completion of this publication was made possible only through the effort they have devoted in producing such work, despite their other commitments.