By Roger Alfred Yoron Modi, 8th March 2021
President Salva Kiir’s recent Republican Decrees “for the Reconstitution and Appointment of State Advisors, State Ministers, Members of State Independent Commissions and County Commissioners” has not only generated mixed reactions on the Constitutionality of those decrees but also, so far, presented glimpses of implications that, going forward, shall continue to affect the implementation of the Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) in many ways.
This article highlights the effects, implications of those decrees, the challenges the decrees potentially pose to the implementation of the R-ARCSS, together with avenues where complainants could seek redress from.
1- The Decrees:
While issuing the decrees in question, the President cited powers conferred upon him by Article 106 A (2) (A) of The Transitional Constitution of the Republic of South Sudan 2011 (as amended), read together with Articles 126.96.36.199; 1.16.2; 1.16.3 and Annexure D Implementation Matrix numbers 20 and 21 of the Revitalized Agreement (R-ARCSS) 2018.
The Article 106 A (2) (A) says the President shall, in consultation with the First Vice President and the Four Vice Presidents in order to reach at mutual understanding and agreement in accordance with the R-ARCSS and the law, exercise the powers of: appointment of constitutional office holders and judicial officers including state governors.
Conflicts: Article 165(6) of The Transitional Constitution of the Republic of South Sudan 2011 (as amended) says “the Governor of each State shall be the head of the executive organ in the State and shall appoint and relieve the Deputy Governor, Advisors and State Ministers in consultation and agreement with the President, First Vice President and the four Vice Presidents and the nominating party and in accordance with the State Constitution and the Agreement (R-ARCSS).”
On the other hand, the R-ARCSS is silent regarding the office of deputy governor in the states. Instead, it only provides that at the beginning of the Transitional Period, State and local governments shall be reconstituted in accordance with the responsibility sharing formula of: Incumbent TGoNU: 55%; SPLM/A-IO: 27%; SSOA: 10%; 08%, and further explicitly stipulating that the positions that shall be shared as per the responsibility sharing formula are: Governors, Speakers of State Legislatures, State Councils of Ministers, State Legislatures, County Commissioners, and County Councils (if any). No mention of Deputy Governor.
Yet, the President’s decree appointing Deputy Governors about two months ago cited powers drawn solely from Articles 106A (2) (A) The Transitional Constitution of the Republic of South Sudan 2011 (as amended) and 188.8.131.52 of the R-ACSS which in themselves do not explicitly empower the President to appoint Deputy Governors.
Indeed Article 164 (1) of the TCRSS, 2011 (as amended) which establishes the position of Deputy Governor within State Executives has not been repealed by the R-ARCSS since the Agreement made no such a provision, however, the Deputy Governors appointed cannot be said to be in line with the R-ARCSS and Article 164 (1) of the TCRSS, 2011 (as amended) for these two reasons: a). the R-ARCSS is explicit on the positions in the States that shall be shared as per the responsibility sharing formula; the position of Deputy Governor is not among those positions; b). the President’s decree appointing Deputy Governors cited powers drawn solely from Articles 106A (2) (A) The Transitional Constitution of the Republic of South Sudan 2011 (as amended) and 184.108.40.206 of the R-ACSS which do not empower the President to appoint Deputy Governors and those decrees made no reference to Article 164 (1) of the TCRSS, 2011 (as amended) which establishes the position of Deputy Governor within State Executives.
While the R-ACSS has been incorporated into the Transitional Constitution of the Republic of South Sudan, 2011 through the (Amendment) (N0.6) Act, and while the Transitional Constitution of the Republic of South Sudan 2011 (as amended) now says the R-ARCSS shall take precedence over the Constitution, any national legislation or previous agreement, and that in the event that the provisions of the Constitution or a national legislation conflict with the terms of the R-ARCSS, the R-ARCSS shall prevail, for clarity and argument purposes, the author of this article believes that it is worth mentioning what the relevant parts of the R-ARCSS articles the President cited in his Decrees “for the Reconstitution and Appointment of State Advisors, State Ministers, Members of State Independent Commissions and County Commissioners” actually say. And they are as follows:
– Article 220.127.116.11 of the R-ARCSS
It says “Appointment of Constitutional and Judicial office holders including state governors” is among powers [that shall be] exercised by the President in consultation with the First Vice President, and the four Vice Presidents in order to reach a mutual understanding and agreement in accordance with the R-ARCSS and the law.
– Article 1.16.2 of the R-ARCSS:
It provides that at the beginning of the Transitional Period, State and local governments shall be reconstituted in accordance with the responsibility sharing formula stated in Article 1.16.1 which are: Incumbent TGoNU: 55%; SPLM/A-IO: 27%; SSOA: 10% ; OPP: 08%.
– Article 1.16.3 of the R-ARCSS:
It says the positions that shall be shared as per the responsibility sharing formula are: Governors, Speakers of State Legislatures, State Councils of Ministers, State Legislatures, County Commissioners, and County Councils (if any).
– Annexure D Implementation Matrix numbers 20 and 21 of R-ARCSS:
Without giving the Presidency specific roles, here, the most relevant in Annexure D Implementation Matrix numbers 20 and 21 list The Presidency and Parties as “Responsible Bodies” for “Reconstitution of State and Local Governments; Appointment of Transitional Governors, Speakers of State Legislatures, State Council of Ministers, State Legislatures, County Commissioners, County Councils (if any).”
2- Rebuttal of Government’s Spokesman Argument:
The minister of Information and government spokesperson Michael Makuei Lueth has been quoted by several media houses saying “the absence of a revised constitution” in the states is the reason why President Salva Kiir is appointing all state officials. Makuei said governors cannot appoint states constitutional post-holders given the absence of “a revised and valid state constitutions.”
“This process cannot be done by the governors because you all know the state constitutions are not valid because the agreement has not been incorporated into the constitutions of the states,” Makuei said.
In responding to the minister’s arguments, some basic history and primary questions need to be traced and answered: what is a State Constitution? What is a valid State Constitution?
In 2011, the Independence Constitution (TCRSS, 2011) provided that each state Legislative Assembly shall “adopt a draft amended state constitution” to become its state transitional constitution, provided that it shall be in conformity with the TCRSS, 2011.
The state Legislative Assemblies were among the pre-independence Institutions that the TRCSS, 2011 provided for their continuity, stipulating that unless new actions are taken in accordance with the provisions of the TCRSS, 2011. (See Article 198 of the TCRSS, 2011).
Though it was noticeable that some of the States promulgated State Constitutions as envisioned in the TCRSS, 2011, most of those States Constitutions remained like secret documents with little or no easy public access, while at the same time it was not clear whether all the States actually promulgated States Constitutions as required.
Fast-forward, in 2015, came the Establishment Order Number 36/2015 for The Creation of 28 States, issued by President Kiir, followed by all the history involved, including a Petition before the Supreme Court challenging the Constitutionality of the Order, other complaints against the Order, another Order increasing the States to 32 States, then the R-ARCSS signing, the revocation of the 32 States, and finally the Constitution Amendment Act No. 7 of February 2020 which, according to an announcement by the Office of the President, had the legal effect of dissolving the Thirty Two (32) States and “re-instating the previous Ten (10) States with their respective previous Counties.”
It is worth pointing out that Order 3.5 of the Establishment Order Number 36/2015 for The Creation of 28 States stated that “State constitution” means “constitution of each state promulgated by an appointed state legislative assembly which shall conform to the Transitional Constitution of South Sudan 2011, amended 2015 until the permanent Constitution is promulgated under which the state constitutions shall conform to.”
Indeed, following the Order, some of those states promulgated Constitutions for their States but there was lack of clarity regarding the validity of those Constitutions.
Therefore, to answer the question what is a State Constitution would mean looking into the above history/actions: were the creation of 28 and 32 States and related actions Constitutional in the first place? And most importantly, looking into the Constitution Amendment Act No. 7 of February 2020: what does it say as far as the States and their Constitutions are concerned? Since like most members of the public I don’t have a copy of the Amendment Act No. 7, I would not like to assume, hence the limitation of this analysis.
Regarding the claim of “absence of a revised constitution” in the states being the reason why President Salva Kiir is appointing all state officials or regarding what is a valid State Constitution as far as the R-ARCSS is concerned, here is the correct stance and procedure:
First, there is no requirement that State Constitutions incorporate the R-ARCSS. The fact that the R-ARCSS has been incorporated into the TCRSS, 2011 (as amended) is enough justification for the states to adhere with the R-ARCSS provisions.
And despite all the circumstances, as far as the States are concerned, the correct and most logical procedure is (ought to be) first reconstituting the State Legislatures in accordance with the provisions of Article 1.16.2 of the R-ARCSS and Article 165 (3) of the TCRSS, 2011 (as amended) before the appointment of the state executive (especially deputy governor and below). Then, after reconstituting the State Legislatures, invoking powers conferred upon the State Legislatures by Articles 163 (2) and 163 (3) and Schedule (B) Paragraph One of the TCRSS (as amended), the State Legislatures shall adopt new State Constitutions or amend existing State Constitutions, incorporating relevant R-ARCSS terms, while adhering to Article 3(3) of the TCRSS, 2011 (as amended) on its Supremacy over States Constitutions, requiring that states constitutions conform to the TCRSS 2011 (as amended). These are all absolutely uncomplicated and easy to do given that the R-ARCSS is already incorporated into the TCRSS, 2011 (as amended). Then, invoking, Article 165 (6) of the TCRSS 2011 (as amended,) state governors shall (could have) appointed Deputy Governor, Advisors and State Ministers in consultation and agreement with the President, First Vice President and the four Vice Presidents and the nominating party and in accordance with the State Constitution and the Agreement.
3- The Decrees Short and Long-term Political and other Implications:
In addition to its mandate to implement the R-ARCSS and restore permanent and sustainable peace, security and stability in the country, the R-ARCSS tasks the Revitalized Transitional Government of National Unity (RTGoNU) to hold elections sixty (60) days before the end of the Transitional Period “in order to establish a democratically elected government.” That is per Article 1.1.5 of the ARCSS.
Other major mandates of the RTGoNU include: to conduct a national population and housing census before the end of the Transitional Period to oversee; as well as ensure that the “permanent” Constitution making process is successfully carried out and completed before the end of the Transitional Period.
The ARCSS provides that the term of the RTGoNU shall be for the duration of the Transitional Period until such time that elections are held, except as provided for in the R-ARCSS. That has also been incorporated into the TCRSS, 2011 (as amended) as it is.
While the TCRSS, 2011 (as amended) stipulates that the term of a Transitional State Legislative Assembly shall run concurrently with that of the Revitalized Transitional Government of National Unity as per the terms of the R-ARCSS, until elections are held, there is no explicit provision regarding the duration of the term of the governors and states executive in general. Except the Article in both the TCRSS, 2011 (as amended) and the R-ARCSS that says “at the beginning of the Transitional Period”, State and local governments shall be reconstituted in accordance with the responsibility sharing formula defined in the R-ARCSS. At the beginning of the Transitional Period does not necessarily mean for the entire period of the Transitional Period. Do these therefore mean some people are having a long-term agenda are trying to do away with the executive arm of state government’s? Possibly.
On the State Executives, so far, on 2nd this month, Governor Alfred Futuyo Karaba of Western Equatoria State reportedly relieved Samuel John Basiame who has been “mistakenly” appointed by President Kiir as Minister of Rural Development and Cooperation, replacing him with Yoana Robert Mark. There appears to be no protest from President Kiir’s side regarding the governor’s move since they all appear to be in agreement.
The foreseeable challenges down the road however is whenever a state governor, invoking Article 165 of the TCRSS, 2011 as amended, removes a minister after securing a motion supported by two thirds of all members of the State Legislative Assembly but not in consultation and agreement with some of the following: the President, First Vice President and the four Vice Presidents. What shall happen? Would such a move be valid as per the R-ARCSS and the TCRSS, 2011 as amended? Well, those are scenarios that shall reignite the questions as to whether or not the state ministers appointed by the president were the same explicitly envisioned by the R-ARCSS and TCRSS, 2011 (as amended).
Last month, a group of lawyers who described the President’s decrees a violation of the Constitution and the R-ARCSS, petitioned ministry of justice over the matter and the ministry promised to look into the petition.
With the focus of the politicians to a big extent already shifting to the elections scheduled to take place towards the end of the transition, the effects and implications of the president’s decrees on the states shall continue to hover around. That may happen in several forms, as the struggle for controlling the states and their organs, even using several avenues aimed at challenging the validity of some of the moves on the state governments for one reason or another, continue to come in as time goes.
4- Redress: through RJMEC & Igad, or Courts of Law
Well, it was Igad-led mediation that produced the R-ARCSS which was clearly lists the following as its Guarantors: IGAD Heads of State and Government; African Union High Level Ad-hoc Committee for South Sudan and African Union Commission; the IGAD led Mediation; and International Partners (Republic of China, TROIKA (USA, UK & Norway), the European Union, the United Nations, and the IGAD Partners Forum (IPF) as witnesses.
For redress against violation of the R-ARCSS or lack of its implication, here are available options per the R-ARCSS and the law:
A) The RJMEC and Igad
The R-ARCSS in Article 7.6 says the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC) shall be responsible for monitoring and overseeing the implementation of the Agreement and the mandate and tasks of the RTGoNU, including the adherence of the Parties to the agreed timelines and implementation schedule, adding that in case of non-implementation of the mandate and tasks of the RTGoNU, or other serious deficiencies, the RJMEC shall recommend appropriate corrective action to the RTGoNU.
The membership of the RJMEC comprise 1). The Parties to the Agreement, ten (10) representatives as follows: Incumbent TGoNU – five (5) representatives; SPLM/A-IO – two (2) representatives; SSOA – One (1) representative; Former Detainees – one (1) representative; Other Political Parties- one (1) representative; 2) Other South Sudanese Stakeholders and Adherents, thirteen (13) representatives as follows: Faith- Based Leaders – two (2) representatives; Women – two (2) representatives [Women’s bloc– one (1) and Women’s Coalition – one (1)]; Civil Society – two (2) representatives [CS Alliance – one (1) and CS Forum- one (1)]; Eminent personalities—two (02) representatives; Business groups – two (2) representatives (one male, one female); Academia – one (1) representative; Youth – two (2) representatives (one male, one female); 3. Regional Guarantors, thirteen (13) representatives as follows: Ethiopia – one (1) representative; Djibouti- one (1) representative; Kenya – one (1) representative; Somalia- one (1) representative; Sudan – one (1) representative; Uganda – one (1) representative; The AU-HLAHC, five (5) each represented by one (1); African Union Commission – one (1) representative; and IGAD Secretariat – one (1) representative; 4). International Partners and Friends of South Sudan, seven (7) representatives as follows: People’s Republic of China – one (1) representative; Norway– one (1) representative; United Kingdom – one (1) representative; United States – one (1) representative; United Nations – one (1) representative; European Union – one (1) representative; and IPF- one (1) representative.
Tasking the RJMEC Secretariat to be Independent, the R-ARCSS adds that the RJMEC shall brief regularly the Executive of the RTGoNU, and submit written reports, followed by detailed briefings, to the RTGoNU Council of Ministers, the Transitional National Legislative Assembly, the Chairperson of the IGAD Assembly of Heads of State and Government, Chairperson of the IGAD Council of Ministers, the Chairperson of the African Union Commission, the Peace and Security Council (PSC) of the African Union and to the Secretary-General and Security Council of the United Nations on the status of implementation of this Agreement every three (3) months.
Further, it provides that the Chairperson of RJMEC shall report all serious incidents of violation and critical issues that may arise during the implementation of the Agreement to the RTGoNU, and copy to the Chairperson of IGAD Council of Ministers. According to the Agreement, the Chairperson of IGAD Council of Ministers shall upon receipt of such reports, convene an Extra-Ordinary meeting of the IGAD Council of Ministers within 14 days, to decide “appropriate timely remedial actions.”
Therefore, in light of the above, those with complaints regarding the recent Decrees/Appointments, could seek redress from the RTGoNU and Igad through the RJMEC.
B) The Courts of Law
Determining whether an action or order is Legal, Constitutional or not, is more than mere opinion of individuals or groups.
Here, in search of legal redress, there are two options to consider: National Courts or Regional ones like the East African Court of Justice.
On National Courts:
Notwithstanding the provisions of the R-ARCSS on reforms of the Judiciary etc. (See below paragraphs,) The Supreme Court, so far, still remains the custodian of the Constitution and the constitutions of the states, pursuant to Article 128 (1) of the TCRSS, 2011 (as amended).
And it is the Supreme Court that has competences to: adjudicate on the constitutionality of laws and set aside or strike down laws or provisions of laws that are inconsistent with the Constitution or the constitutions of the states to the extent of the inconsistency; interpret constitutional provisions at the instance of the President, any state government, or any of the two Houses of the National Legislature; and have original jurisdiction to decide on disputes that arise under the Constitution and the constitutions of states at the instance of individuals, juridical entities or governments. See Article 128 (2) of the TCRSS, 2011 (as amended).
However, certainly, given the level of interferences by the Executive arm of government into the Judiciary (Supreme Court included) and the lack of the required independence of the judiciary (institutional and legal), most of those protesting the Presidential Decrees on the states do not easily trust that the Supreme Court can deliver a just ruling on the matter when petitioned.
Hence to remedy this situation and others, the R-ARCSS provides for reforms of the judiciary that shall include the review of the Judiciary Act (2008) during the Transitional Period; established an ad hoc Judicial Reform Committee (JRC) to study and make recommendations to the RTGoNU for consideration; and the establishment, during the Transitional Period, of an independent, impartial and credible Constitutional Court.
The R-ARCSS stipulates that upon establishment and operationalisation of the Constitutional Court, all the relevant functions of the Constitutional Court currently exercised by the Supreme Court, any other court or body shall vest in the Constitutional Court.
Therefore those pushing for genuine implementation of the R-ARCSS should as well add pressure for reforms in the Judiciary as well as the establishment of the Constitutional Court as provided for in the R-ARCSS.
The East African Court of Justice:
Controversial as it may seem, some South Sudanese lawyers have hinted on resorting to the East African Court of Justice (EACJ) over the recent Presidential Decrees on the States, a Court which does not require that applications exhaust domestic remedies before bringing an application to it.
The EACJ can be accessed directly by individuals as the EAC Treaty provides that, “any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of the Treaty.”
Though the EACJ can be an option to consider on the Decrees issue, moreover other South Sudanese have in the recent past resorted to it, the challenge remains on enforcement/implementation of its judgements.