By Roger Alfred Yoron Modi, 15th August 2018
Last week, the National Salvation Front (NAS) which a member of the South Sudan Opposition Alliance SSOA denied that it was party to the Agreement on Outstanding Issues of Governance signed on August 5th in Khartoum, Sudan as part of the Igad-led revitalization of the 2015 ARCSS aimed at ending the civil war in the young nation.
“We demand for federalism because our people in their respective states can organize their livelihood and govern themselves, so this is what we want. But Juba doesn’t want it because they still want to sit on the heads of the South Sudanese people,” the NAS leader Gen. Thomas Cirillo was quoted by Radio Tamazuj as saying.
Responding to the proposal earlier on August 2nd, Cirillo said “Unfortunately, the current governance proposal prioritizes power sharing over devolution of powers, strengthens and further entrenches the current rotten system in Juba rather than transforming it and defers the question of federalism to a permanent constitution making process that the parties cannot guarantee when this will eventually happen.”
A NAS splinter group led by Gen. Khalid Butrous announced that have deposed Gen. Cirillo for refusing to sign the agreement in Khartoum. Their group is now part of the Agreement. Gen. Cirillo sad NAS has not authorized any individual or any group of individuals to sign the agreement on its behalf.
Dr. Lam Akol Ajawin and former Governor Col. Joseph Bangasi Bakoroso who are both leading members of SSOA, the Opposition umbrella through which NAS is participating in the Talks, said SSOA has launched an initiative to end the split in NAS.
“We are trying to bring the two sides together and resolve their differences through dialogue,” Lam Akol Ajawin, a leading SSOA member told Radio Tamazuj. “It is an internal issue that should be resolved within the organization. We are just helping them to resolve their differences. We consider them as one group.”
On the other hand, this week, a senior official of the South Sudan United Movement/Army (SSUF/A) Lewis Anei Madut Kuendit which is so far not part of the Agreement said their rebel movement supports Cirillo’s demand for federalism in South Sudan.
“We are tired of tribalism. Let’s address it through federalism so that people go back to their areas and then meet at the national level,” Anei told Radio Tamazuj.
“We have it in our program and we are calling for full federal system because it is a popular demand. If federalism is applied now, it will reduce the problems.”
-Federalism is achievable through the Khartoum Agreement
The ARCSS being revitalized already provides for the enactment of Federalism in South Sudan during the permanent Constitution making process.
Further, Article 6.11 of the Khartoum Agreement on Governance enshrines that “The Parties reaffirm their agreement in the ARCSS that a federal and democratic system of governance that reflects the character of the Republic of South Sudan and ensures unity in diversity be enacted during the permanent constitution making process.”
ARCSS contains a roadmap for the enactment of the permanent Constitution, including in Chapter 6 Article 3 which says “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.” All these, as per the mandate of the ongoing process, shall be revitalized to ensure ARCSS full implementation.
Therefore, the argument by Gen. Cirillo that the Khartoum governance Agreement “defers the question of federalism to a permanent constitution making process that the parties cannot guarantee when this will eventually happen” does not hold water. What form of guarantee is Gen. Cirillo demanding?
-Devolution of powers and resources
The Author agrees with findings of the African Union Commission of Inquiry on South Sudan AUCISS that “the Transitional Constitution creates three levels of government — national, state and local government — and that both national and state government enjoy a sphere of exclusive executive and legislative powers, while judicial power is national. The Commission concluded that the devolved system of government in South Sudan has both unitary and federal elements, and that it is essentially a ‘hybrid system’, in part because states lack competence in judicial power and that national executive possesses limited control over states. This is expressed in the fact that the President is empowered to remove elected governors, and to dissolve state legislative assemblies”
“The Commission (AUCISS) also established that there is disconnect between the legal framework on decentralization and practice, and that several aspects of decentralization have not been implemented or are dysfunctional. Practice distorts the delicate balance of power between national and state government in the sense that national government intervenes in the functioning of state governments in ways that appear to lack constitutional sanction. Equally, the relationship between states and local government is problematic: states exercise de facto control over local government and provisions on election of certain local government officials have not been respected. Local government, which is a key center of service delivery, faces serious financial, human and physical resource constraints, resulting in lack of capacity to deliver services,” the AUCISS report continued.
“With respect to the third tier of government, it was established that functionally, local government are linked to states, which have the constitutional mandate to create and finance local government units. States receive a share of 15% of national revenue while the national government retains 85%.”
The Opposition parties, including NAS, have frequently talked about the devolution of powers and resources to the states but failed short on enumerating the specific powers and an approximate amount of resources they want to be devolved to the states.
Already the transitional Constitution in Schedule B provides for exclusive executive and legislative powers of a state which include:
1. Adoption or amendment of the state constitution subject to conformity with the National Constitution;
2. State Police, Prisons, Wildlife, Fire Brigade services;
3. Local Government;
4. State information, publications and mass media;
5. Social Welfare including state pensions;
6. The state Civil Service;
7. State Land and state Natural Resources;
8. Cultural matters within the state;
9. Regulation of religious matters;
10. Internal and external borrowing of money on the sole credit of the state within the National macro-economic framework;
11. The management, lease and utilization of lands belonging to the state;
12. The establishment, maintenance and management of state prisons and reformatories;
13. Establishment, regulation, and provision of health care, including hospitals and other health facilities;
14. Regulation of businesses, trade licenses, working conditions, hours, and holidays within the state;
15. Local works and undertakings;
16. Registration of marriage, divorce, inheritance, birth, death, adoption and affiliations;
17. Enforcement of national and state laws;
18. The development, conservation and management of state natural resources and state forestry resources;
19. Pre-school, primary and secondary education;
20. Agriculture within the state;
21. Airstrips other than international and national airports managed by the civil aviation authority;
22. Intrastate public transport and roads;
23. Population policy and family planning;
24. Pollution control;
25. State statistics, and state surveys;
26. Charities and endowment;
28. Town and rural planning;
29. State cultural and heritage sites, libraries, museums and other historical sites;
30. Traditional authority and customary law;
31. State finances;
32. State irrigation and embankments;
33. State budgets;
34. State archives, antiquities and monuments;
35. State taxes;
36. State public utilities;
37. Vehicle licensing;
38. Fire control and ambulance services;
39. Recreation and sport within the state;
40. Flag and emblem of the state;
41. Issuance of driving licenses and number plates; and
42. Customary law courts.
The Transitional Constitution also provides for concurrent powers between the national and state governments in Schedule C.
Further, On Residual Powers, Schedule D of the Constitution provides that “Residual powers shall be dealt with according to their nature. If the power pertains to a national matter, requires a national standard, or is a matter which cannot be regulated by a single state, it shall be exercised by the National Government. If the power pertains to a matter that is usually exercised by the state or local government, it shall be exercised by the state or local government.”
On Resolution of Conflicts in Respect of Concurrent Powers, Schedule E of the Constitution stipulates that “If there is a contradiction between the provisions of National law and a state law on the matters that are concurrent, the National law shall prevail to the extent of the contradiction.”
So, up to here, what are the exact powers that the oppositions want to be devolved to the states?
Practically, in addition to the lack of democracy in the Country, the major problem and source of under influence on the exercise of states powers has been Article 101 (r) of the Transitional Constitution as it empowers the president to remove a state Governor and/or dissolve a state legislative assembly “in the event of a crisis in the state that threatens national security and territorial integrity.”
Those are in fact undemocratic, at least a state legislature should have the powers to remove a governor through fair, democratic and well-defined procedures. These are concerns most people share throughout the Country, not just some regions. The people who enjoy those presidential powers are the few who are within the corridors of power in the central government in Juba, who feel, through gossiping and sycophancy, they or their allies would take advantage of such powers. Those people do not look beyond today that in case someone else becomes the president, how those powers would be used against them or their very allies. By recommending their allies to be appointed governors or others to be removed from governorships, as the lobby group, they are serving their own interests first and foremost which in turn gets the president into problems with the population who would like to elect their own governor. 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.
On one hand, the issue of election of governors is out of question during the transitional period since it shall be the parties to come up with state governors based on the power-sharing formula they have agreed on.
The issue of Article 101 (r) of the Transitional Constitution which empowers the president to remove a state Governor and/or dissolve a state legislative assembly “in the event of a crisis in the state that threatens national security and territorial integrity” is almost resolved now as the draft document on the competence of the President, First Vice President and Vice Presidents being discussed this week in Khartoum provides for the exercise of those powers in a consultative manner. What may need to be added in that document is the threshold for validity any consultation within the Presidency: a simple majority or approval of all in the Presidency?
On the question devolution of resources, in its preamble, the Khartoum Agreement on governance provides that the parties are “Cognizant that a federal system of government is a popular demand of the people of the Republic of South Sudan and of the need for the Revitalized TGoNU to reflect this demand by way of devolution of more powers and resources to lower levels of government.”
On this, the author suggests that an affirmative action making a substantial rise in the allocation of national revenue to the lower level of government(states) be provided for in the Agreement since merely mentioning “devolution of more resources” as is in the current preamble of the Khartoum Governance Agreement is not enough and is possible to manipulate. Such additional resources should be directed towards building institutions and human resource (personnel) in the states so that they are able to deliver to meet the needs of their people without failing the devolved system.
With regards to the judicial powers which got centralized as of 2011 without clear reasons, there are no provisions for decentralization of the Judiciary both in ARCSS and the Khartoum Agreement. Currently, in Khartoum there are talks on the composition of a review commission for the Judiciary and other matters which information minister Michael Makuei said has made “a good progress and there is likelihood of…concluding all these on Wednesday.” Adding that “Together with the conclusion of these, definitely the draft agreement will be out for consideration by the parties…”
Chapter One Article 12.2 of ARCSS also provides that “There shall be reforms of the judiciary that shall include but not be limited to the review of the Judiciary Act during the Transition. Notwithstanding, efforts shall be made to build the capacity of the judicial, personnel, and infrastructure.”
Further explicit provisos for full implementation of Article 133 of the TCRSS on the establishment of a Judicial Service Commission and ARCSS provision on the Commission’s reforms and reconstitutions should be harmonized since there no legislation establishing a Judicial Service Commission. There is no institution called Judicial Service Commission in South Sudan, as far as Independence of the Judiciary is concerned. It was an error that the drafters of ARCSS, 2015 presumed that there is a Judicial Service Commission in South Sudan. That error should be rectified now by inserting a provision in the Khartoum Agreement/revitalized ARCSS for the enactment of an Act for the establishment of an independent National Judicial Service Commission during the Transitional period, not merely the ongoing composition of a commission to review the Judiciary. That Judicial Service Commission shall be very significant in enhancing separation of powers and checks and balanced as per Article 133 of the Transitional Constitution, the Judicial Service Commissions shall be a body to approve the budget of the Judiciary and it shall also be the body upon whose recommendation, the president may remove Justices and Judges.
With regards to the continued disagreements over the number of states, I argued in one of my recent articles that: “The Problem is not merely agreeing on the Number of States
In November 2015 after ARCSS was signed, it was widely reported over the media that South Sudanese Parliament amended the TCRSS, relaxing the number of states stipulated in the Constitution and gave the President powers to create more states, appoint governors, etc.
“Article 162 (1) which fixed the number of states to ten was amended so that ‘the President may for the purpose of efficient discharge of functions of the government, divide the territory of the Republic of South Sudan into states and other areas in accordance with procedures prescribed by law or provisions of such law as may be enacted by the concerned House of Legislature.’” Sudan Tribune reported.
“Article 164 (1) which defined the current states legislative assemblies, the manner of their composition, was amended to add that other members will be appointed by the president during interim period.”
On this also, The Nation Mirror reported that the “issue of 28 states also attracted criticism as it was passed by the National Legislative Assembly. Several MPs walked out of parliament accusing the Speaker of bias. They also said that parliament passed the Creation Order illegally as it lacked quorum.”
In December 2015, Radio Tamazuj reported that the Council of States “ratified the Constitutional amendments on the establishment of 28 states.”
For all this time, the opposition and others only talk about reaching an agreement with the government on the number of the states for the purposes of the transitional period.
However, in reality, all should focus on much more than just an agreement on States number. This is because the government may reach an agreement with them (the opposition, parties) on the states today or at any time as per the Igad-led ARCSS process but the President could later still divide the Country in to more or fewer States, citing the controversial “Constitutional Amendment” or the Establishment Order approved by the Council of States. That could happen especially when ARCSS expires before a democratic Permanent Constitution is enacted with clearly defined States number, withdrawing the powers said to have been given to the President to divide the Country into States.
One option is to challenge the “Constitutional Amendment” and the Establishment Order before the Courts in South Sudan but experience shows that it would be difficult, if not impossible, to get a just ruling on the matter since the Judiciary is still not Independent from the Executive in several ways.
Hence, the best is for all the parties to get a balanced power sharing in the Council of States through the ongoing (Proposed) Agreement on Outstanding Issues of Governance on the ARCSS revitalization since it is the Council that shall have powers to approve or conduct reforms on the issues of states and also stop the same from being centralized to the office of the President.”
An all-inclusive wider discussion on all the above and related matters should and shall and made and approved by the people of South Sudan during the permanent Constitution making process per the revitalized ARCSS, when the Country is in peace.
Perhaps for Gen. Cirillo, it is about his movement’s manifesto which called for “crafting and adopting, through a wide consultative process, a modern, democratic, truly federal constitution with institutional checks and balances.” But, this is exactly what the Khartoum Governance Agreement and ARCSS have provided for. It is, in fact, contradictory for Gen. Cirillo (NAS) to call for immediate implementation of Federalism (which they have not even specified) during the transitional period through the ongoing Talks when in the first place he wanted “crafting and adopting, through a wide consultative process, a modern, democratic, truly federal constitution.” That wide consultative process is only achievable in peacetime, during the transitional period through the permanent Constitution making process.
On the other hand, Chapter Four, Article 4.2 of ARCSS as addressed, among others, the need to initiate an in-depth national debate to review the current national land policy and the Land Act, “in order to achieve consensus over land tenure, use, management and address issues of land grabbing, other malpractices involving land, carry out necessary reforms, undertake mapping, and to maximize economic utilization of land in South Sudan.”
The alarm over a possible resumption to armed conflict during the transitional period akin to that of July 2016 is not convincing since matters of armed conflict are related to security arrangements and all the relevant parties, including NAS have signed the Khartoum Agreement on Security Arrangements. The current disagreements are on the Agreement (proposal) on Governance matters.
Gen. Cirillo and SSUF/A of Gen. Paul Malong should be very honest to their fighters, South Sudanese et al about their reasons for fighting if that is what they intend to carry on. They should note that staying out of the Agreement shall be a great source of insecurity and shall negatively affect implementation of the reforms provided for in the revitalized ARCSS. It is well known that without adhering to the permanent ceasefire and having their forces arranged based on the Security Agreement, an armed movement could be engaged in combat and/or anyone could carry out atrocities and attempt to point the blames towards them, in general, making accountability difficult and furthering lack of the needed stability. That is why, for the sake of working towards a permanent peace, all, including SSUF/A should be part of the Agreement. The various South Sudanese Opposition should be very careful with any advice they take from war beneficiaries (whether South Sudanese, Foreigners, or Foreigners pretending to be South Sudanese) who have no interest in permanent peace in South Sudan or who have ulterior motives with regards to the ongoing peace Talks.
Finally, there are no sufficient reasons to continue the war in South Sudan over federalism and related matters as argued above. The government and all the parties should resolve the relevant abovementioned matters through the ongoing Talks. Other issues of Federalism shall be achieved through peaceful means during the transitional period, by that time the parties (transitional government) should have prepared the environment and institutions ready for Federalism through implementations of the legal and institutional reforms stipulated in the revitalized ARCSS. Federalism is a very good system for South Sudan given the nature of our crises. But it also requires understanding and enlightenment of the people on the various types of Federalism. It will be upon South Sudanese to decide on the type of Federalism that, as ARCSS stipulates, “reflects the character of South Sudan.” That is because powers should be devolved to the states under a Federal system and at the same time the Country should be kept united. Unless if there is something else in the program of the opposition which they have not made clear so far.