By Roger Alfred Yoron Modi, 25th June 2021
About 45 days ago, President Salva Kiir issued a decree for expansion, reconstitution and appointment of members of South Sudan’s Transitional National Assembly TNLA. The Revitalized Agreement on the Resolution of the Conflict in South Sudan R-ARCSS provides that the legislative Assembly be expanded and reconstituted from 400 to 550 members, the parties to the Agreement: the former transitional government to nominate -332 members, SPLM-IO- 128 members, the South Sudan Opposition Alliance SSOA- 50, Other Political Parties OPP- 30, and the Former Detainees- 10.
However, despite their appointment, the incoming legislators have not taken oath of office and the parliament is yet to be convened to hold its first sitting. So, who’s responsible for the delays? The short answer is the Presidency.
Article 68 (1) of the Transitional Constitution of the Republic of South Sudan, 2011 (as amended 2018) provides that the Transitional National Legislature shall hold its first sitting upon convocation by the President within 30 days following the expansion and reconstitution of the Transitional National Legislative Assembly. The President requires the agreement of the First Vice President, and all the Four Vice Presidents to convene the Transitional National Legislature ( See Articles 1.9.3. and 188.8.131.52. of the R-ARCSS ).
The Transitional Constitution of the Republic of South Sudan, 2011 (as amended 2018) is also clear in Article 3 (5) that the R-ARCSS shall take precedence over the Constitution and in the event that the provisions of the Constitution conflict with the terms of the R-ARCSS, the R-ARCSS shall prevail. It is the Presidency (the President, the First Vice President, and all the Four Vice Presidents) that should agree for and allow the convocation and the first sitting. The delay should be urgently addressed.
Last week, the leader of the National Alliance which is part of Other Political Parties (OPP) Kornelio Kon Ngu said some complaints from the SPLM regarding members of parliament elected in 2010 left out in the recent appointment and the OPP on about some appointed MPs being “relatives of some leaders” are reasons that contributed to the delay in the swearing-in of the appointed legislators.
Indeed some of the concerns such as claims that some of those appointed turned out to be “relatives of some leaders” can be genuine in the sense that it is unjustifiable to have more than one appointed MP, from one Constituency and from the same party. However, all those mentioned concerns can be resolved in less than one week and the parliament can be convened.
Then what next?
On the same date of the Convocation and the first sitting, to assume their functions, the appointed members of the Transitional National Legislative Assembly shall (should) take the oath prescribed in Article 65 of the Transitional Constitution.
Also during the first sitting, the National Legislative Assembly is required to elect a Speaker and three Deputy Speakers from among its members, in accordance with the following criteria: The Speaker of the TNLA (shall be nominated by the (former) incumbent TGoNU); The First Deputy Speaker (shall be nominated by SPLM/A-IO); The Second Deputy Speaker, who shall be a woman, (shall be nominated by the (former) incumbent TGoNU); and The Third Deputy Speaker shall be nominated by OPP (See Article 69 (2) of the Transitional Constitution of the Republic of South Sudan, 2011 (as amended 2018), read together with Article 1.14.3 of the R-ARCSS.)
Thereafter, the reconstituted TNLA shall be able to start discharging the functions expected of it.
On the Council of States
Last month Information Michael Makuei Lueth said the council of states would be reconstituted “soon” and that most parties already submitted names of their nominees for appointment.
Legally, there is no basis for reconstituting the Council of States as none of the two scenarios in the R-ARCSS: IBC recommendation or outcome of a referendum on the number and boundaries of states under which the Council of States could have been reconstituted materialized. Instead, the parties reached a political settlement outside the R-ACRSS, reverting to 10 States.
Let the Presidency and the parties urgently resolve the differences regarding the appointments of some of the MPs.
The reconstituted Transitional National Legislative Assembly TNLA is part of the Transitional National Legislature and should be urgently convened by the President with the agreement of the Presidency as per the R-ARCSS.
While functions and mandate of the TNLA remain as stipulated in the Transitional Constitution of the Republic of South Sudan, 2011 as amended, unless otherwise specified by the terms of the R-ARCSS, the Agreement says, the reconstituted TNLA shall, in the conduct of its business, support the R-ARCSS and enact legislation that enables and assists the transitional processes and reforms described in the R-ARCSS. All these including the enactment of legislation to govern the “Permanent” Constitution-making Process have delayed for far too long. Through the expected convocation of the TNLA and if the relevant parts of the R-ARCSS get implemented, a lot of progress can be made, including on consolidating peace through the ongoing processes with the R-ARCSS non-signatories, perhaps including via the much needed “Permanent” Constitution-making, especially when the process is made open, inclusive and it ends up reflecting the aspirations of the people of South Sudan.