University of Juba, School of Law

_____________________________

Course outline & teaching materials

for

Constitutional Law

LLB 1 Semester 1

Contact Hours: (3 CH)

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Course Instructor: Mr. Peter Garang Geng (LLM, Sharda University, India)
Lecturer, School of Law, University of Juba

E-mail: garanggengakot@gmail.com
Tel: +211922700004
WhatsApp: +211911237916

Feb 2024
TABLE OF CONTENTS

A. Learning outcomes

B 1 General introduction to constitutional law

B 1.1 The meaning of a constitution (what is a constitution)

B 1.2 Why constitution? (functions of a constitution)
B 1.3 Definition of key concepts (rule of law, constitutionalism, Doctrine of separation of powers
and check and balance etc.)

B 2 Nature of a constitution
B 1.1 Classifications and types of constitutions (origin, form, written, unwritten, rigid)
B 1.2 Principles of constitution (supremacy, separation of powers, secularism, judicial review)
B.1.3 Basic structure doctrine including sui generis nature

B 3 Understanding constitution in action

B 3.1 Understanding government and types of government
B 3.2 Understanding the structure of the arms of government (judiciary, legislature and executive)
B 3.3 Powers and functions of the executive, judiciary and legislature (Doctrine of separation of
powers and check and balance etc)
B 3.4 Levels of government (national, state and local government)
B. 3.5 Emergency powers and provisional orders what circumstances and which authority issue?)

B 4 Hermeneutics of constitutional interpretation

B 4.1 Principles of constitutional interpretation
B 4.2 Constitutional interpretation in action (case studies in groups)

B 5 Making, re-making and unmaking a constitution

B 5.1 Making a constitution (theories and practice with a seminar on constitution-making in South
Sudan)
B 5.2 Amending a constitution (procedure for amendment under the Transitional Constitution)

B 6 Rights, citizenship and justiciability of rights

B 6.1 Understanding the bill of rights
B 6.2 Citizenship
B 6.3 Justiciability of rights (with emphasis on constitutional petitions including comparative cases
from South Africa, Kenya, Sudan and Uganda)

B 7 Preparing for exams

B 7.1 General course summary
B 7.2 Revision (Trial questions)
C. CORE READING MATERIALS

See key readings per lecture segments below

C 1 LAWS AND STATUTORY INSTRUMENTS

• Transitional Constitutional Constitutions of South Sudan 2011; as amended
• Interim Constitution of Southern Sudan 2005
• Citizenship Act
• Constitution Making Process Act 2022
• National Elections Act 2012; as amended
• Presidential Order 36 for the Creation of 28 States
• Judicial Service Act 2008

C 2 POLITICAL PARTIES’ CONSTITUTIONS AND INSTRUMENTS

• SPLM Constitution 2008
• NDM Constitution
• OPP Constitution
• Revitalised Agreement on the Resolution of Conflict in South Sudan 2018

C 3 CONSTITUTIONAL PETITIONS

C 4 CONSTITUIONAL INSTRUMENTS FROM OTHER COUNTRIES

• US Constitution 1787
• Declaration of Independence 1776
• German Basic Law; as amended
• Constitution of South Africa 1996
• Constitution of the Federal Republic of Nigeria 1999
• Constitution of Kenya 2010
• Constitution of Uganda 1995; as amended

C 5 AUTHORITATIVE MATERIALS
• Alison JWF, AV Dicey’s The Law of the Constitution (UOP 2013)

D. COURSE ASSESSMENT
• Preparing for coursework (30 %)
• Preparing for exams (70 %)
COURSE CONTENT

The course on constitutional law in a fundamental component of a lawyer’s training as it covers

core aspects of constitutionalism, rule of law, and governmentality. As an introductory course, it
aim is to introduce students to the basic features and principles of constitutional law.

This course outline was prepared from a review of constitutional law curricula of certain African
countries. It is premised on the University of Juba’s Course Guide which provides for general
learning outcomes that a student must achieve.

The course on Constitutional Law is divided into lecture series delivered in a 10 weeks segment
as follows:

Teaching methodology

Constitution law is an important course for lawyers and all those entering legal profession. A
constitution is the cornerstone of a democratic society and learners must not just grasps the basic
principles underpinning the course but must apply the learning.

The course will therefore be delivered in three-pronged methodology:

1. Lectures delivered by the Course Instructor based on well researched teaching notes and
other materials to which the students shall have been afforded to internalize;
2. Interactive discussions in class or in groups based on case studies; and
3. Students are to attend seminars on constitutionalism or constitution-making from time to
time where each will write an essay to be discussed in class.

Course contents is divided into weeks and lecture segments.

Week 1: General introduction to constitutional law

Lecture 1: The meaning of a constitution

• General introduction (getting to know each other, class organizing into learning groups)
• Course objectives and setting expectations between students and Course Instructor)
• What is a constitution?
• Why constitution?

Key readings
- Constitutional instruments (Sudan Constitutions, 1947 Juba Conference, 1964 Roundtable
etc.)
- A Bradly (2017) Constitutional and Administrative Law, Trans-Atlantic Publications, (15th
ed.).

Class assignment
• What is the importance of a constitution?
 Week 2: Nature of a constitution

Lecture 2: Substantive aspects of a constitution

• Classifications and types of constitutions (origin, form, written, unwritten)
• Principles of constitution (supremacy, separation of powers, secularism, judicial review)

Key readings
- A Bradly (2017) Constitutional and Administrative Law, Trans-Atlantic Publications, (15th
ed.).
- D Galligan and M Versteeg (eds.) Social and political foundations of constitutions (2013)
Oxford University Press
- Deng, M W ‘The importance of judicial independence to the administration of justice:
The case of South Sudan (2016) 1-11 <http://www.jstor.com/stable/resrep11031>
(accessed 27 June 2022)

Class assignment/discussion
- What is the constitutional implication in relation to the principle of secularism when a
government funds a religious owned institution?
- Critically discuss the principle of separation of powers under the Transitional
Constitution 2011; as amended.

Week 3: Understanding constitution in action

Lecture 3: Structure of a constitution

• Arms of and levels of a government

• Doctrine of separation of powers and check and balance
• Powers of the executive, judiciary and legislature
• Provisional Orders and emergency powers

Reading list
- A Bradly (2017) Constitutional and Administrative Law, Trans-Atlantic Publications, (15th
ed.).
- Vicki C. Jackson & Mark Tushnet (2006) Comparative Constitutional Law, Foundation
Press, New York (2nd ed.).

Class assignment/discussion
- What are the basic features of the Transitional Constitution?
- How do different layers of government inter-relate?
- Critically discuss one instant in which a separation of powers and check and balance
doctrine would apply
- Discuss the provisional orders and the law of prerogative powers under the Transitional
Constitution of South Sudan
 - Under what circumstances and the law can Provisional Orders and emergency powers
issue?

Lecture 4: Constitutionalism, rule of law and good governance

• Joint public lecture with the constitutional law students of the University of Juba and
students of the Institute for Justice and Peace, Catholic University of South Sudan

Topic: Constitutionalism, rule of law and good governance

Speakers: Course Instructor and 2 constitution and governance experts

Week 4: Interpreting a constitution

Lecture 5: Hermeneutics of constitutional interpretation

• Principles of constitutional interpretation
• Types of Constitutional Interpretation
• Constitutional interpretation in action ( a case study in group)

Reading list
- Alliance of Political Parties v Salva Kiir Mayardit, President of the Republic of South
Sudan and Chairman of Sudan People’s Liberation Movement (2015) Supreme Court of
South Sudan [unreported]

- Hon. Justice Malek Mathiang Malek v Minister of Justice the Republic of South Sudan
and The Secretary General of the East African Community

Class assignment (group discussion and presentation)

- In what circumstances and to whom is the right to approach court in matters of
constitutional interpretation? Under what procedures would the challenger have to
follow?
- In what circumstances could it be open to a person to challenge in court the election of
the President, Governor or an MP? What procedures would such a challenge have to
follow?

Week 5: Amending a constitution

Lecture 6: (Un)constitutional changes to a constitution

• What is a constitutional amendment?
• Does constitution-making amount to a constitutional amendment?
• Constitutional procedures for amending a constitution?
• Which institution has the power to amend a constitution
• The concept of constituent and constituted power
• Basic structure doctrine
Reading list

- Joseph Geng Akech ‘Arbitrary Constitutional Changes and the Failure of

Constitutionalism and Rule of Law in South Sudan’ (2022) Oxford University Press
(forthcoming)
- Roznai, Y ‘Unconstitutional constitutional amendments: A study of the nature and limits
of constitutional amendment powers’ (unpublished PhD thesis, London School of
Economics, 2014) 1-363.
- Establishment Order number 36/2015 AD for the creation of 28 states in the Republic of
South Sudan
- Executive Order Number 100/2017 for the dismissal of judges and justice of the Republic
of South Sudan
- Akech, J G & Mading, M G ‘What lessons could be drawn from the Kenyan High Court
judgement on BBI for constitutional consolidation in South Sudan?’ (2021) 2-3
<https://www.suddinstitute.org/assets/Publications/60a73224c5084_WhatLessonsCouldB
eDrawnFromTheKenyan_Full.pdf> (accessed 24 June 2022)
- Judicial Service Act 2008
- Republican Decree Number 14/2020 for the re-establishment of 10 States and three
Administrative Areas in South Sudan
- Charles Manga Fombad ‘Constitution-building in Africa: The never-ending story of the
making, unmaking and remaking of constitutions’ (2014) 13 African and Asian Studies

Class assignment
• Discuss the extent to which the 28 state was or was not a constitutional amendment?

Week 6: Rights, citizenship and justiciability of rights

Lecture 7: Horizontal and vertical accountability of rights, duties and responsibilities

• Understanding the bill of rights (part 2 of the Constitution)
• Citizenship
• Justiciability of rights (with emphasis on constitutional petitions including comparative
cases from South Africa, Kenya and Uganda)

Reading list

Class assignment
- How far, in your view, does bill of rights provide a safeguard for individual rights?
- Article 9(3) of the Transitional Constitution of South Sudan stipulates that:

“all human rights treaties and conventions ratified or acceded to by the government of
South Sudan shall be part of [municipal law]”

Does this make the Constitution dualistic or monistic? Discuss in a group and present in class
your arguments.
 - How does the Transitional Constitutional protect rights of minorities?

Week 7: Recent developments

Lecture 8: Theories and practice of constitution-making

• Understanding the constitution-making process in South Sudan

Reading list
- Constitution-making Process Act 2022
- H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran
Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on
Governance, Africa World Press, Trenton, pp. 33-60.
- Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94
Columbia Law Review pp. 1-123.
- Benjamin Obi Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst &
Co., London.
- Jon Elster ‘Forces and mechanisms in the constitution-making process’ (1995) 45 Duke
Law Journal 394
- Joseph Geng Akech ‘Foreign influence and the legitimacy of constitution building in
South Sudan’ (LLD thesis, University of Pretoria, South Africa)
- Matthias Hartwig ‘What legitimises a national constitution? On the importance of
international embedding’ in A Bogdandy and P Sonneven (eds.) Constitutional crisis in
the European constitutional area (2015)
- Tom Ginsburg et al ‘Does the process of constitution-making matter?’ (2009) Annual
Review of Law and Social Science 5
- Revitalised Joint Monitoring and Evaluation Commission ‘Post-conflict constitution-
making processes: Lessons and best practices for South Sudan’ (2020) 1-70
<https://jmecsouthsudan.org/index.php/reports/rjmec-quarterly-reports/169-post-conflict-
constitution-making- processes-lessons-and-best-practices-for-south-sudan-final-report-
2020/file> accessed 18 August 2021.
- V Hart ‘Democratic constitution making’ (2003) United States Institute of Peace
- G Storaas ‘Participation on paper but not in practice? The South Sudan constitutional
review process (2015)
Applying the knowledge

(a) Seminar on constitution-making in South Sudan (to be attended by students of Institute

of Peace and Justice, Catholic University, other students, public and professionals)
(b) Students will be asked to write a publishable short journal on “the constitutional basis
for making, re-making and unmaking a constitution”

Week 8: Preparing for exams

Lecture 9: Tutorial and course summary (preparing students up for exams)

- Students are afforded opportunity to ask questions in the course

- Students are encouraged to form study groups