Articles (Opinion/Analysis)

On Controversies about R-ARCSS Incorporation & lawmaking in South Sudan

By Roger Alfred Yoron Modi, 7th February 2022

This article seeks to address the controversial arguments being made by many regarding the incorporation of the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) into the Transitional Constitution, as well as the challenges to do with alterations of laws, disappearances of Bills passed by the legislature and such occurrences that have been recurrent in South Sudan.

Talking about implementing the R-ARCSS in letter and spirit can be inaccurate simply based on the delays in the implementation schedules, but still implementation of the commitments and obligations in the R-ARCSS are rightly possible, even with legitimate improvements on some parts. Some of the controversial arguments about the  incorporation of the R-ARCSS into the Transitional Constitution may be genuine to correct the “anomalies” regarding the the reconstitution of the legislature, and while all of that require transparency, timely and reliably making information available to the public and all stakeholders, other arguments on the issues appear to be insincere and are being peddled to buy time for unclear purposes.

Brief Facts, History and Chronology of Events

After complaints were made regarding “alterations” made, on the 23rd April 2020,  IGAD Council of Ministers in its Communique during its 71st Extra-Ordinary Session held via zoom video conference, “Commended the R-TGoNU (Revitalized Transitional Government of National Unity) for recognizing substantive alterations made to the Constitutional Amendment Bill, as submitted by the NCAC, and passed as Constitutional Amendment Act by the TNLA contravene the provisions of the R-ARCSS and appreciated the commitment made by the RTGoNU during the Council meeting to take remedial measures to rectify the alterations made to the Constitutional Amendment Bill.”

Despite of the fact that the incorporation done were clear in the references made to articles of the Transitional Constitution (as amended 2020) and cited together with the R-ARCSS in the various appointments on the formation of the RTGoNU, there had been arguments to deny that the R-ARCSS was not incorporated into the Transitional Constitution, that is also in addition to arguments that the incorporation was done but with alterations.

However, those are matters that I and relevant guests on my program The Weekly Review discussed and settled, one in an episode that discussed the Presidential Decrees and another on the Expansion and Reconstitution of the Legislature.  Though the views of the guests vary on various issues expressed there, valid arguments I made there include that, in addition to the references (articles cited) during the  formation of the RTGoNU, Communique of the IGAD Council of Ministers during its 71st Extra-Ordinary Session together with the reply from the RTGoNU acknowledged that the R-ARCSS was incorporated into the Transitional Constitution, despite the mentioning that alterations were done. Another valid point I made there is that even in the Amendment Act Cited, its Article 3 modifying sub article (5) of Article 3 of the Constitution provides that “The Agreement (R-ARCSS) shall take precedence over the Constitution, any  national legislation or previous agreement, and in the event that the provisions of the Constitution or a national legislation conflict with the terms of the Agreement, the  Agreement shall prevail.” This, I continued to argue make pointless arguments about “alterations” done in the Constitution Amendment Bill, and that since on matters of implementation of the the R-ARCSS the lines between the  Transitional Constitution and the R-ARCSS are clear, even when both are cited together when actions are being taken.

One genuine issue is regarding the expansion and reconstitution of the Council of States, which is one of the houses of the National Legislature, the other being the Transitional National Legislative Assembly, the issue is about validity of that expansion and reconstitution per the provisions of the R-ARCSS. On that, in a video published 26th October 2021 I expressed my views and observations regarding the fact that the process provided for in the R-ARCSS was not followed, and that possible actions can be taken, in spirit of peace and friendliness, to rectify that, while adhering to the R-ARCSS.

In the Summary of Stakeholders’ submissions on South Sudan, Report of the Office of the United Nations High Commissioner for Human Rights, at this month’s Third Cycle of South Sudan’s Universal Periodic Review UPR at the United Nations Human Rights Council, Geneva, it is included that, “The Secretary-General and United Nations country team reported that between 8 and 11 May 2021, the President had dissolved the Transitional National Legislative Assembly and the Council of States and reconstituted the 400-member Assembly as a 550-member parliament.

Consequently, several critical pieces of legislation necessary for the implementation of reforms were pending, including the Constitutional Amendment Bill to rectify anomalies in the Constitutional Amendment Act of 2020, which would convert the Revitalized Agreement to the Transitional Constitution.”

There are suggestions from others that the issue of the Council of States is now addressed, and all the legislators are now members of the Transitional National Legislative Assembly (National Legislative Assembly), being the Parliament. Such a process, all these require a transparent and reliable process on amending the R-ARCSS,  in line with the R-ARCSS.

On 20th December 2021, Radio Miraya reported that “Parliament has passed the ‘Transitional Constitution Amendment Bill 2021’, paving way for the incorporation of the 2018 revitalized peace agreement into the constitution.  The passing of the bill allows the peace agreement to supersede the transitional constitution in areas of interpretation and implementation.It was passed by the National Legislature this morning in a sitting chaired by Deputy Speaker Oyet Nathaniel Pierino.”

The following day, Radio Miraya also reported that “National legislature is expected to continue deliberation on transitional constitution 2011 amendment Bill 2021 number nine today. The amendment Bill once passed, will ensure the names of institutions such as Fire Brigade Service changed to Civil Defense, Prison to correctional service and South Sudan national police service to #SouthSudan police.”

The R-ARCSS in 8.4. provides that “This Revitalised Agreement may be amended by the Parties, with at least two-thirds of the members of the Council of Ministers of the RTGoNU, and, at least two-thirds of the voting members of the Revitalised Joint Monitoring and Evaluation Commission consenting to the amendment, followed by ratification by the Transitional National Legislature, according to the constitutional amendment procedures set out in the TCRSS, 2011 (as amended).”

Article 7.9. provides 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.”

Article 7.10 says “Notwithstanding the foregoing, 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. 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.”

Per R-ARCSS Article 7.2. the membership of the RJMEC comprise representatives of the Parties to the Agreement, other South Sudanese stakeholders, and regional and international guarantors and partners of South Sudan. 

On Addressing Transparency, and having timely, reliable official channels

Reports about alterations of laws, disappearances of Bills passed by the legislature and such occurrences have been recurrent in South Sudan.  

One of the issues is related to having official, impartial Gazatte that make official publications online and in print and is not politically compromised by any, including the executive arm of government.

Section 9 of The Ministry of Legal Affairs and Constitutional Development Organization Act,  2008 has established, within the Ministry, the Directorate of Legislation, Gazette, Publication and Printing. Section 9 (2) says the Directorate shall exercise “all powers reasonably necessary to fulfil” functions of the Ministry including “printing and publishing the Southern Sudan Gazette and any other necessary government publications.” As the saying goes, that is where the devil lies. That is where many important issues of laws of South Sudan get stuck. The political and other compromises including lack of the required transparency is clear, even as the name of the ministry has changed over time.

The Right of Access to Information Act, 2013 explicitly recognizes the constitutional right of every citizen to access information held by public or private bodies, as fundamental to fulfilment of human rights and fighting corruption and also establishes the office of Information Commissioner with the mandate to, amongst others, promote maximum discloser of information in the public interest.

As I pointed out in an earlier article regarding the Right of Access to Information in South Sudan, Section 16 of The Right of Access to Information Act stipulates that:

(1) Every public body shall establish an information office, designate an Information Officer and ensure that members of the public have easy access to information concerning the Information Officer, including his or her name, duty and contact details pursuant to provisions of The Right of Access to Information Act.

2. The Information Officer designated under subsection (1) of Section 16, shall in addition to any obligations specifically provided for in The Right of Access to Information Act, have the following responsibilities: (a) Serve as a central contact for receiving requests from persons seeking to obtain information and receiving individual complaints regarding the performance of the public body in relation to information disclosure. (b) Promote best practices in relation to record maintenance, archiving and disposal of information within the public body.

The office of the Information Commissioner had not been able to execute its mandate provided for in the law, for example, in an interview I did in 2016 with  the then Information Commissioner Nicodemus Ajak Bior, published on The Nation Mirror Newspaper and in my book Freedom of Expression and Media Laws in South Sudan, he told me they had a logo approved by the cabinet, a temporary office space, but no “support staff” due to lack of budget.

“Like if it is receiving and reviewing complaints from requesters, we need to have a department for that,” he said at the time. “We need people to monitor compliance and how other government institutions are making information available. We need people to do the training, public awareness so that people are aware that there’s a law that actually gives them the right to access information. This is the challenge now we have. Not many people know that the law permits them to seek information.”

While it was under the Right of Access to Information Act, 2013 that Bior was  appointed Information Commissioner and he operated in that capacity, in late 2020 President Salva Kiir, through decrees, relieved him from that office and appointed “Commissioner of Information Commission in the Ministry of Information” citing  “powers” conferred upon him by the Civil Service Act, 2011 and The Interpretation of Laws and General Provisions Act, 2006.  That, in an article I published at the rimes, I argued is cheating and a deviation from The Right of Access to Information Act, 2013.

Conclusions:

The Revitalized Transitional Government of National Unity and the parties to the R-ARCSS keep saying they are committed to the implementation of the R-ARCSS in letter and spirit, despite the delays that exist.

Solutions to the issues of alterations of laws, disappearances of Bills passed by the legislature and such occurrences which have been recurrent in South Sudan can be through implementing the Right of Access to Information Act, 2013, addressing the need to have, possibly through a legislation, an impartial official Gazette, online and in print, that is not compromised politically or otherwise. Even the issues regarding  rectifying “anomalies” in the Constitutional Amendment Act of 2020, addressing the issues to do with expansion and reconstitution of the Council of States, amending the R-ARCSS or simply making both houses henceforth the “Transitional National Legislative Assembly” or Parliament all need transparency, timely an reliably making information available for the public, to allow for their participation as well of other stakeholders. This shall also be important in relation to any agreement the RTGoNU may reach with the parties it is currently in talks with.

Roger Alfred Yoron Modi, a South Sudanese journalist, is the author of the book Freedom of Expression and Media Laws in South Sudan.  Roger is also the Producer and Host of The Weekly Review: Making Sense of News and Relevant Topics.

For more, keep in touch with this his website rogeryoronmodi.com

The article on other sites:

https://radiotamazuj.org/en/news/article/opinion-on-controversies-about-r-arcss-incorporation-lawmaking-in-south-sudan

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