Articles (Opinion/Analysis)

Five-point rebuttal to Dr. Lako Jada Kwajok article on South Sudan governance

By Roger Alfred Yoron Modi, 29th August 2018

Three days ago, Dr. Lako Jada Kwajok published an article on Radio Tamazuj titled “Issues regarding Roger Yoron Modi’s arguments on governance.”

Dr. Lako Jada Kwajok article came after I debunked his arguments in my article “Thirteen point reply to Dr. Lako Kwajok article on Federalism in South Sudan.”

Dr. Lako Jada Kwajok article which I challenged misrepresented my arguments in my other article “Federalism does not deserve war in South Sudan.

All those articles are available on Radio Tamazuj, some are also available on Sudan Tribune, etc. It is up to the reader to make his/her judgment.

However, I have the following five (5) point reply, rebutting Dr. Lako Jada Kwajok’s arguments which he has made in his latest article “Issues regarding Roger Yoron Modi’s arguments on governance.”

1-    Dr. Kwajok misunderstanding of the NCAC and the NCRC

Dr. Lako Jada Kwajok  wrote: “‘Article 13.1 in chapter 1, Pre-Transitional period and NCAC reads ‘upon signing this agreement, the IGAD-led mediation in consultation with the parties and stakeholders shall initiate the formation of a representative National Constitutional Amendment Committee (NCAC) with the mandate to complete the task necessary to prepare for the transition period and form the TGoNU.’

Article 13.2 elaborates further – ‘To draft a constitutional amendment bill within twenty-one (21) days upon signing this agreement. The bill shall incorporate this agreement into the Transitional Constitution of the Republic of South Sudan (TCRSS 2011). In the event of any contradictions, the provision of the agreement shall prevail.’

The TCRSS 2011 does not recognise ARCSS because it was not in existence when the Constitution was written in 2011. Therefore, a new TCRSS 2018 needs to be put in place before the formation of the TGoNU. Roger Alfred Yoron Modi’s contention that the constitutional amendments and implementation of federalism should be deferred until peace prevails in the country have no iota of reasoning in it. Does he want the new TGoNU to function without a Constitution while the parties are negotiating one?! Oh! Or he wants the opposition to go to Juba to work under the Current TCRSS 2011 (amended 2015) which the government intends to amend anyway to incorporate the 32 new States?!

The Constitutional and legal basis for the implementation of federalism in the transition is embedded in chapter 1, article 13.1 in the account mentioned above. What our journalist is trying hard to get through is a mixture of misinformation and misrepresentation. These are delaying tactics with the regime hoping to prevent the occurrence of the inevitable. They would not work.”

My response: It would be a waste of time and energy for me to make a lot of arguments here since it is either Dr. Lako Jada Kwajok is intentionally misrepresenting the issues: my arguments and ARCSS provisions or he is simply unaware of the law (ARCSS provisions).

However, for the sake of the reader, I should make the following brief explanation.

First, Dr. Lako Jada Kwajok is completely wrong in his interpretation of the mandate of the NCAC to draft a constitutional amendment bill to incorporate the Agreement (ACRSS) into the transitional Constitution TCRSS.

The mandate of the NCAC (as in ARCSS Chapter One, Article 13 and the sub-Articles thereunder) is not about introducing Federalism immediately; it is simply about incorporating all the provisions of the ARCSS into the Transitional Constitution TCRSS, including the ARCSS provision which says a Federal and Democratic system of government shall be established (enacted) during the permanent Constitution making process. The mandate of the NCAC is not to make the Permanent Constitution.

Even ARCSS Preamble is clear that the parties are “cognizant that a Federal system of government is a popular demand of the people of South Sudan and of the need for the TGoNU to reflect this demand by way of devolution of more power and resources to lower levels of government, and to initiate that a federal and democratic system of governance that reflects the character of South Sudan and ensures unity in diversity be enacted during the permanent constitution making process.”

It is the not the NCAC to draft (make) the permanent Constitution as Dr. Lako Jada Kwajok has knowingly or unknowingly argued in his article. Rather, as per ARCSS, it shall be the (to be) reconstituted National Constitutional Review Commission (NCRC) to prepare a draft Constitutional text for the Permanent Constitution.

Let me just quote the following part of an article I published in late June on this subject:

“…ARCSS in Chapter Six Article 1(2), set the parameters of the permanent Constitution to be made to include initiating of a federal democratic system of government that guarantees, amongst others, the supremacy of the people of South Sudan, good governance, constitutionalism, rule of law and human rights.

It provided that the TNLA [Transitional National Legislative Assembly] shall within the first six (6) months of [the] Transitional Period enact a legislation to govern the constitutional making process…

Also, Chapter Six, Article 8 of the ARCSS provided that: “The TGoNU shall review the ongoing permanent Constitution-making process and reconstitute the National Constitutional Review Commission (NCRC). In order to ensure quality of participation and inclusiveness in the reformulated Constitution review process, the composition of the reconstituted NCRC shall include but not limited to representatives of the TGoNU, Political Parties, faith-based groups, women’s bloc, youth, ethnic minorities, representatives of the private sector, CSO groups, academics and other professionals. The process of appointment shall be as defined in the reviewed and enacted legislation governing the constitution-making process.”

ARCSS enshrined that the NCRC shall be appointed by the Executive [of the transitional government to be formed by all the parties to the Agreement]   after adequate consultation with all key stakeholders including but not limited to the Political Parties, Civil Society Organizations and Faith-Based groups for their views to prepare a Draft Constitutional Text, and that the Commission shall, inter alia, carry out wide consultation with the people and conduct civic education and prepare the Draft Constitutional Text.

It added that the permanent constitution shall be completed not later than eighteen (18) months following the establishment of the Transitional Period and shall be in place to guide the Elections toward the end of the Transition.”

Those are very clear issues and I urge Dr. Lako Jada Kwajok to be honest in his arguments or he should read ARCSS very well if he has not done so up to now.

My arguments are firmly grounded on facts and provisions of the relevant Agreements, including ARCSS. There is nowhere I said that I want the parties or TGoNU to function without a Constitution. As per the ARCSS, the Constitution that shall be enacted by the NCAC to guide the TGoNU shall be a Transitional Constitution, not the Permanent Constitution which ARCSS enshrines that shall be, through a wide process, and shall be Federal, etc. As per ARCSS, the roadmap and timeframe for the introduction of Federalism are attached to the Permanent Constitution making process during the transitional period through the NCRC, not the NCAC which D. Kwajok is talking about. The provisions of the Agreement on Outstanding Issues of Governance recently signed in Khartoum as part of ARCSS revitalization are also clear on recognizing Federalism and I presented all those issues clearly in myarticles, links to some of the articles are also available in the piece.

There is no misinformation, no misrepresentation, and no “delaying tactics” anywhere in my articles.  On the ongoing peace process, my arguments are based on facts, the ARCSS, the Agreements reached so far, and the mandate of the High-Level Revitalization Forum HLRF as contained in the Igad Communique establishing the HLRF.

2-    Consultations on the system of Governance

Dr. Lako Jada Kwajok wrote, “The two questions that the journalist would fail to answer are the following:

– Did the SPLM party conduct broad-based consultations with the political parties regarding the decentralised system that it had implemented?

– Furthermore, did it organise enlightenment campaigns to explain what the decentralised system of governance is all about?

If the answer to both questions is yes, then where is the evidence? But if the answer is no, then why should federalism not be implemented in the same manner?”

My Response: My answer to both questions is no. The SPLM did not do any of the above two. However, in my view, federalism should not be implemented in the same manner the SPLM implemented “Decentralization.” This is to be different and to be able to avoid any avoidable conflict over federalism. We, South Sudanese, in general, should learn from the mistakes of the SPLM and never repeat it when making the Permanent Constitution. The roadmap for Federalism provided for under ARCSS is well arranged and shall bring a lasting peace in South Sudan when implemented (see my above arguments and related articles.)

On the other hand, if the parties want to drop that ARCSS roadmap in favor of introducing Federalism immediately at the start of the transition, every South Sudanese has the right to ask: what type of Federalism are the parties introducing without their consultation? Federalism based on States or former three regions of Bahr El Gazal, Equatoria and Upper Nile? If it is Federalism based on those former three regions, what shall be the structure and powers of the national, regional, and states governments? Is going back to the former three regions system really a devolution or centralization of power and resources in a different form? Is that the demand of the people of South Sudan?

There are several questions that shall need a wide, consultative process for South Sudanese to be able to come up with the type of Federalism that “reflects the character of South Sudan” as ARCSS has provided for. That does not mean campaigning against Federalism or working to have the provision on Federalism repealed. Rather, it is following the right process. For more on this, my article on the link below could be useful:

3-    Devolution of Power and Resource

Dr. Lako Jada Kwajok wrote, “Roger Alfred Yoron Modi wrote – ‘The opposition parties, including NAS, have frequently talked about the devolution of powers and resources to the States but failed short of enumerating the specific powers and an approximate amount of resources they want to be devolved to the States.’”

Dr. Lako Jada Kwajok continued “…These are not honest arguments but are inserted into the debate as hurdles for buying time to craft ways of derailing the whole process. Federalism is not rocket sciences or an untested system of governance. It’s the most prosperous on planet earth. Its modalities and the powers/resources to be devolved to the States are not secrets. The information is available in the public domain and accessible to everyone. It’s incredible that our journalist should waste his time on such ridiculous arguments.”

My response:

Dr. Lako Jada Kwajok is wrong to say that the information on specific powers and an approximate amount of resources the opposition want to be devolved is available in the public domain. Where? does not contain such an important information (if it exists), why?  Dr. Lako Jada Kwajok should have provided a link or direction to where that information can be found.

Anyway, to understand my arguments on the above topic of devolution of power and resources, read my two articles below:

4-    Apologetic or not

Dr. Lako Jada Kwajok wrote, “His [Roger Alfred Yoron Modi] writings do not reflect what he claims and appear consistently critical of the opposition and apologetic towards the government”

And added “Whom does our journalist think bears the blame for the shortcomings of the appointed Governors? He has to know that the buck stops at the President’s desk… the whole thing is the apologetic theme towards the President and the regime in full display.”

My response:  First, below is the argument I made in my article on the above subject: “In essence, the president gets blames for the underperformance of those appointed governors which he could have avoided if it were the people who elect their governors. Indeed the President also benefits from those powers as he gets some sort of loyalty and control over the governors. But to free himself and settle this matter for the sake of democracy and the future of the Country, the President should be convinced that it is the people to elect their governors and the right thing for him is to accept certain presidential powers reduced.” There is nothing wrong here that I said since it is a common knowledge that in South Sudan those close to power (such as some few politicians) are the ones who go around recommending their allies(favorites) to the President for appointments as governors, etc. I never said the President is totally free of blames. I am, however, based on my knowledge of how things work in the Country, insisting that some lobby groups/(politicians) should share the blames for the underperformance of those they recommend to the Presidents for appointments since it is reasonable for the President to rely on their advice sometimes. 

As a journalist, I write the truth and I do not seek applause from anyone for what I do in the line of my profession. I am by far the most critical South Sudanese journalist. My articles are loud and clear and I also offer practical solutions. I have never been apologetic to the “regime” or the president. Why would I?  I only tell the truth and unlike the opposition, my language is different since I am a journalist and not an opposition. By the way, I do get a lot of praises for my articles from credible senior journalists and others from South Sudan and beyond. Dr. Lako Jada Kwajok is a politician, and just one person complaining and misrepresenting my arguments. In fact, it is easier for me to conclude from his writings that actually he (Dr. Kwajok) may not be working for the interest of NAS but of a few opposition individuals who I know are indirectly against NAS even, however, I would not like to make such a conclusion or insinuation.   

5-    Censorship

Dr. Lako Jada Kwajok wrote, “…Sudan Tribune seems to be selective about the articles that I send to its website. Over the years, I discovered that there’s some censorship over there. I admit, they did publish a small number of my articles leaving the rest unpublished for no apparent reasons….Of the four articles that I sent in the past three weeks, only one was published. I did post the one which is part of this debate (Federalism is not the cause of war) to Sudan Tribune 3 times. Twice before and once after Roger Alfred Yoron Modi posted his 13-points article. Now, how could Sudan Tribune publish the rebuttal of a material that it refused to release?”

My Response: I am not their journalist and I have no capacity to respond to this. However, late last month, Sudan Tribune also did not publish my article titled “The deadlock over South Sudan Pre–Transitional arrangements” but Radio Tamazuj and others did.