The Creation of 28 States: CHALLENGES AND OPPORTUNITIES


BLOGGER’S INTRO…

Below is the ‘The Presidential Order’ simplified. Therefore, those who are addicted to arguing without satisfactory explanation and authentic reference should now check this intellectual illustration by Dr. Lam Akol.

To my own understanding on the lecture, I have now realized that what President Kiir and his cohorts call ‘Ethnic Federalidm’ is but a ‘Political Feudalism’. It is a politically malicious trick designed to win the hearts of the desperate population into furthering their worship of the collapsing regime!

Disappointing as usual, this is done with very extravagant spirit towards the consequences to the nation and its populace; so long as it saves and serves the leadership!

My well informed expectation is this. Kiir and Company will coil back after the spoi as usual in the aftermath of all these much ado and the job position-driven and tribal independence celebrations.

For example, the forced demonstration against the now haphazardly decreed federalism a few months back, the forced demonstrations against the now signed Compromised Peace Agreement in August 205, and the rest of the flip-flopping decisions by the government make me confident that  this so-called ‘Presidential Order’ to change the geographical, social and political setting of the whole country will be withdrawn if not frozen till real peace implementation takes off.

In short, if mighty Volkswagen can recall millions of its cars with foul gas emission or faulty mechanical ‘something’ from all over the world, I harbour the belief that President Salva Kiir can rescind his foul decree or that ‘Establishment Order’ that has thrown the country back into an unprecedented anarchy since the December 15 error.


THE PUBLIC LECTURE

Centre for Peace and Development Studies,

University of Juba,

8 October 2015.

TALKING POINTS

By Dr Lam Akol

Purpose of the Order:

The main purpose cited by the order is to “devolve power and resources closer to

the rural people”.

No power has been devolved. Only the number of the States is increased from 10 to 28.

What is Wrong with the Order?

Violation of the Constitution

(a)-The Order is self-standing and self-executing.

Order 1 paragraph 2 provides that the Order “shall come into force in thirty working days from the date of signature by the President of the Republic”. Order 10 paragraph 1 provides that the Order “shall not be amended save by another Order issued to that effect by the President of the Republic”.

The legal effect of Order 1 and Order 10 of the Establishment Order establishing 28 states is that it is self-standing and self-executing Order. Therefore, it cannot be said to be an amendment to the Transitional Constitution of the Republic of South Sudan, 2011(amended 2015). Thus, the Order is unconstitutional.

(b)- Violates Article 86

If it is a Provisional Order, then it is in gross violation of the Constitution because Article 86(5) prohibits the President from making any provisional order on matters affecting, among others, the decentralized system of government or alteration of administrative boundaries of the states. These are precisely the issues the Order is dealing with.

(c)- Contravenes Article 162(1) of the Constitution

Article 162(1) stipulates that “the territory of South Sudan is composed of ten states governed on the basis of decentralization”. Thus, the Order establishing 28 states is in flagrant violation of this sub-Article. This sub-Article should have been amended first before the Council of States could exercise its powers under sub-Articles 162(3) and (4) to alter the boundaries, names and capital towns. Neither was sub-Article 162(1) amended nor were sub-Articles 162(3) and (4) exercised by the competent constitutional authority, the Council of States. Therefore, the Order violates Article 162(1),(3) and (4) of the Constitution.

(d)- Usurps the Powers of the Council of States

The constitutional articles cited in the Establishment Order as the authority on which the order is founded do not purport to confer on the President the power to create states or alter the boundaries of existing states.  Article 101(f) confers on the President the constitutional power to initiate an amendment to the Constitution as stipulated under Article 199.  Since, the President did not introduce to the National Legislature a proposal to amend Article 162(1), then he stands in contravention of the Constitution by enacting the Establishment Order.

  1.  Violation of the Peace Agreement

(a)-  Devolution of more power and resources to the lower levels of government

The “Agreement on the Resolution of the Conflict in the Republic of South Sudan”

was signed by the Parties on the 17th and 26th of August in Addis Ababa and Juba,

respectively, and adopted by the National Legislature thereafter. It is therefore a

binding document on all the signatories. This means that no one party can effect

any change in its provisions without following the procedure set therein.

(i)-  The Preamble of the Peace Agreement stipulates the following:

“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”

(ii)- Article 1.2  of Chapter VI provides that the Permanent Constitution-making

Process shall be based on a number of principles including to “initiate a Federal

and democratic system of government that reflects the character of South Sudan in its various

institutions taken together, guarantees good governance, Constitutionalism, rule of law,

human rights, gender equity and affirmative action”.

Therefore, the peace agreement stipulates that the issues of devolving power

and resources closer to the people which the Establishment Order purports to aim

at shall be part of the permanent constitution-making process during the

Transition. This Transition should, according to the agreement, commence in less

than two months.

(b)-  The power sharing in the peace agreement is based on ten states (Articles 3 and 15

of Chapter I).

On the basis of the foregoing, the Establishment Order has clearly contravened the

provisions of the Peace Agreement.

  1.  No Set Criteria for the Delineation of State Boundaries

The borders of the 28 states do not follow clear criteria in their definition. They are

drawn haphazardly and arbitrarily. For instance, single counties become states,

while other states are composed of up to seven counties, and for the first time

since the advent of administrative units in Sudan and South Sudan, inter-state

boundaries have been infringed with. The only discernable trend in the Order is the

ethnic nature of the newly proposed states.

  1.   No Studies Made

The Government did not carry out any studies to assess the human resource

requirements of the 28 states nor did it estimate the financial resources required to

set the new states in place and keeping them running. In view of the current

economic crunch, it is mind-boggling how a government deserving the name could

throw the country into this economic and financial leap into the dark through this  ill-

advised decision.

  1.   No Consultation with the People.

The people of South Sudan to whom power and resources are supposed to be

devolved have not been consulted on how best this can be done.

The Position of the Government in the Peace Talks

During the Addis Ababa Peace Talks that took almost two years, the Government position on this issue has been clear, consistent and strident: no federalism now and no increase in the number of states before the permanent constitution-making process. In fact, it was because of that that the agreed text on the matter came as above (Point 2) in the Peace Agreement.

To illustrate this position, the President of the Republic in a public speech on the 18th of March 2015, said the following:

“In addition, they [meaning SPLM-IO] demanded Federalism to be implemented at the start of the 30-month interim period. In regard to the political system South Sudan will adopt, we believe this should be dealt with in the permanent constitution following broader consultation with the people”. End of quote. (Speech by H.E. Comrade Salva Kiir Mayardit SPLM Chairman and President of the Repubic of South Sudan, March 18, 2015)

Again, in Bahir Dar, Ethiopia, because of the Government’s position on the matter the

Parties to the peace talks agreed on the following, among others:

“3. The TGoNU shall through the permanent constitution making process study and

come up with the type of federalism and any other system of governance

appropriate to the people of South Sudan.

  1. The Transitional Government shall review the number of states with the view to

either reducing or increasing them.”

End of quote. (Summary of Areas of Agreement and Disagreement, Reviewed and edited by

Negotiating Committee on 14th October 2014)

IV-    What prompted the U-turn?

The President has been under tremendous pressure from groups of a particular ethnic group that have been agitating for ethnic federalism as a short cut to border disputes between them and their neighbouring ethnic groups, especially in Upper Nile and Unity States.

The Peace Agreement gave Upper Nile and Unity States to SPLM-IO which these groups have been characterizing as representing one ethnic group different from their own. This development increased the agitation for action. The last move of issuing the Establishment Order is clearly meant to pre-empt this arrangement by creating a fait accompli.

Among several documents to that effect, we shall here consider only two of them to illustrate these points. One was issued by the “Padang Community Union” dated 22 July 2015. It was their reaction to the IGAD’s “Key Provisions and Justification for the Agreement on the Resolution of the Conflict in the Republic of South Sudan”. The position paper concludes thus:

“… we the Padang Community demands (sic) the creation of two states as follows:

Ruweng State (RUS) in Unity State to constitute Abiemnom and Panriang Counties.

Central Upper Nile State (CUNS) to constitute Seven  (7) Counties of Renk, Maluth, Maban, Baliet, Akoka and Malakal in Upper Nile State and Pigi County in Jonglei State.

Long live SPLM, Long live SPLA, Long live Salva Kiir Mayardit and long live Padang Community”. End of quote. (REF: PADANG COMMUNITY POSITION ON IGAD PROPOSED “KEY PROVISIONS AND JUSTIFICATION FOR THE AGREEMENT ON THE RESOLUTION OF THE CONFLICT IN THE REPUBLIC OF SOUTH SUDAN, signed by Dr Ramadan Chan Liol and Mr Monywach Tiop Ajak, dated 22 July 2015.)

This demand was fully granted in the Establishment Order. Long live Salva Kiir!!

The second paper was written on the 9th of September 2015. It is more elaborate and proposes 23 states in the country and their capitals. It is this paper that was translated into the Establishment Order almost verbatim, except for a few changes that increased the number of states to 28 states. The changes were:

Amadi State was carved out from the proposed Maridi State.

The proposed Jebel State was divided into two: Jubek and Terekeka.

The proposed Aramwer State was divided into two: Western Lakes and Gok.

The proposed Liech state was divided into two: Northern and Southern Liech.

The proposed Bieh state was divided into two: Eastern and Western Bieh.

V- The way forward

The fact that the Order is not in conformity with the constitution renders it null and void.

The peace agreement is our top priority at the moment and nothing that tends to derail its implementation, including this Order, should be entertained.

The federal system and the number of states will be dealt with as came in the peace agreement.

The President has committed a gross violation of the constitution he has taken a solemn oath to preserve and defend.


COMNENTS BY DR. LUKA BIONG ON DPF FORUM

These are issues discussed during the public lecture that we organized at University of Juba. Simple common sense and without legal jargons, the Order despite its popularity clearly contravenes with the provisions of the constitution and the peace agreement. The Order even failed to meet the minimum legal drafting ethics and standards by having orders rather than sections within the same Order.
Sub-sections 15.1, 15.2 and 15.3 of Chapter I of the Agreement make clear reference to the 10 states. Also Sections 2 of Chapter VI provides provision for the incorporation of the peace agreement into the current constitution (i.e. the current constitution that defines the states of SS has been recognized by the peace agreement).
This section 2 of Chapter VI of the Agreement makes it clear that in the event of conflict between the provisions of the current constitution and that of the agreement, the provisions of the agreement shall prevail. As such even if you can amend the current constitution to create 28 states, such amendment shall not only create conflict but it will contravene with the provisions of the agreement and its provisions of having 10 states shall prevail.
Although the government has rightly accepted to take the Order to the Parliament, the Order may need to be altered since it provides that it can not be amended except by the President. The Order needs to be changed to follow the normal process of constitutional amendment initiation that may be discussed by the Council of Ministers before its presentation to the Parliament. However, the President has constitutional right to initiate the amendment of constitution. The government should have adopted this normal process of amending the Constitution in the same way it did in extending its tenure.  The problem with this process is that it will lead to dead-end since the provisions of the Peace Agreement will eventually prevail.
However, there is opportunity in the agreement in section 4 of Chapter VI that allows the parties to amend the agreement with at least two-third of members of the council of ministers of TGoNU and at least two-third of the voting members of JMEC. This option is only possible during the transition period when the transitional government is established.
Other option is whether the President can reconsider amending the Order as provided for in the Order and to defer the creation of 28 states to the permanent-constitution making process. This option may be rather embarrassing to the President, particularly after the jubilation and the high expectations raised with the Order.
The other option is to contest the Order before a competent court (i.e. Supreme Court) to stay the Order. This option may provide the best way out and face-saving.
As government has gained popularity by embracing the creation of 28 states, it is a high time for the government to explore options of how to ensure the incorporation of such popular demand into the constitution and peace agreement.
Thanks
Luka Biong Deng
Centre for Peace and Development Studies
University of Juba
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