Critique of the “Establishment Order Number 36/2015 for the Creation of 28 States” in the Decentralized Governance System in the Republic of South Sudan

By Alma Ettore   MSc, MCSP.

The 28 States of Mr. Salva Kiir....

The 28 States of Mr. Salva Kiir….

Oct 28, 2015(Nyamilepedia) —- South Sudan is the newest nation on earth and gained its independence on the 9th July 2011. According to the nation’s Constitution, the President of the country, Salva Kiir Mayardit and his government have a duty to respect each ethnic tribe and treat them equally. This duty is highlighted in the Transitional Constitution (TC) of the Republic of South Sudan 2011 amended 2015.

In TC 2011 amended 2015, it is crystal clear that the Constitution derives its power from the WILL OF THE PEOPLE. This means that the Constitution itself is the voice of the South Sudanese people. No one, including the President can put his will above the will of the people.

On 2nd October 2015, Salva Kiir Mayardit, the President of the Republic of South Sudan read to the nation on South Sudan Television (SSTV) an order that has threatened to rock the very existence of the new nation. This order was read to the bewildered nation at a time in which South Sudanese stakeholders, called IGAD PLUS, are trying their level best to bring a durable peace to the country after a bloody ethnic war erupted in December 2013 between President Salva Kiir’s Dinka tribe and his sacked ex-Vice President Riek Machar’s Nuer tribe. This civil war is still continuing in some parts of the country in spite of the 2 feuding leaders signing a Compromise Peace Agreement in August 2015.

Many people in South Sudan view the order by the President with a lot of trepidation and anger. This is mainly because the President, without consultation with the South Sudanese nation, has decided to divide the country into 28 states instead of the current 10. Many argue that the TC 2011 amended 2015 is based on 10 states and that if the President wanted to change the number or the name of the states; he should consult the people first and secure their consent. The other issue is that the Compromise Peace agreement signed only a few weeks ago between President Salva Kiir himself and Riek Machar is also based on the 10 existing states. The South Sudanese Stakeholders round the world view the order by Salva Kiir as a looming threat to the Peace Agreement.

The other argument about the order is that financially it is not viable. South Sudan is now in a dire financial state. The government is struggling to maintain the 10 states, why create another 18? What is the benefit to the South Sudanese people who are suffering due to lack of basic services such as clean water, food, basic health care etc.?

The President’s argument is that dividing the country into another 18 more states is “Federalism”. He said that the people wanted Federalism and that is what they are getting. The question to the President is: Does dividing the country into 18 more states equate to Federalism? If so why did he have to use an order to enforce Federalism? Does Federalism need to be “enforced” or “negotiated”? Does it have to be established by the President alone or all the people of South Sudan? Federalism in itself means “giving power back to the people”. To establish Federalism there needs to be wide consultation, education and facilitation to the different groups of people. Each should be given choices, support and clear and honest guidance AND TIME to reach informed decisions. This is because dividing the states will mean that clear boundaries will have to be drawn which will affect millions of people. Such borders will affect properties, assets and pieces of ancestral lands that cannot be relinquished for heritage, cultural and historical reasons. The boundaries can divide well-established communities that have always lived as one entity. These communities will have to be consulted. Buildings and properties also can be affected which can run into millions of pounds. The boundaries can also affect people who want to keep their way of life intact such as those people who claim to be farmers and who do not want their counties to be joined with those who are pastoralists because it will change their way of life. These people have the right to live their lives in peace according to the Constitution: The Bill Of Rights.

In order to understand the reasoning behind the President’s Order, this article critically examines the Order itself and analyse it. The objectives of the article are (1) to unpack the Order as unconstitutional; and (2) to propose the way forward.

In Order 1 (3.5) “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.

Creating other states outside the 10 states that are mentioned in Transitional Constitution 2011 amended 2015 is in itself a violation of the Constitution itself. What the President should have done according to TC 2011 was to ask the State Assembly for a mandate. The State Assemblies of the 10 states of South Sudan have to be consulted first and a consensus has to be reached (by wider consultations of individuals and groups in the different states) which is that the majority of people in the 10 states have to agree (via a voting system) to increase the number of states, otherwise President Salva Kiir cannot support his argument by referring to TC2011 because he has already bypassed the Constitution. In this case he is contradicting himself by trying to justify his order using the TC2011.

In Order 2: Authority of order:

The Establishment Order derives its authority from the provisions of the Transitional Constitution of South Sudan 2011 amended 2015:

Article 36: (1) All levels of government shall promote democratic principles and political pluralism, and shall be guided by the principles of decentralization and devolution of power to the people through the appropriate levels of government where they can best manage and direct their affairs.

Again President Salva Kiir has quoted an inappropriate text to justify his order. This quotation from the TC2011 first of all talks about democracy, which means that everyone in the country should be consulted via a system of democracy such as a referendum or voting in such matter of important magnitude. We all know that the President consulted none of his National or State assemblies. “Democracy” and “Presidential Order” do not go hand in hand as they are as opposite as chalk and cheese. This order is the opposite of “democratic principles and political pluralism. Devolution of power to the people means giving power to people. His order is taking every ounce of the little power left from the people and this is supported in order 1 (3.4)   “ Governor” means a governor of a state. For the time being, whom the President of the Republic shall appoint until the permanent constitution is promulgated and elections are conducted.

This means that the President will choose the 28 Governors that he wants, not that the people want or elect. This is far removed from democracy or Federalism. This means that the President in doing so will be “taking power away from the people” This is the exact opposite of Federalism.

Coming to Article 166 (6) (a) and (b)

Article 166(6) (a) promote self-governance and enhance the participation of people and communities in maintaining law and order and promoting democratic, transparent and accountable local government;

(b) Establish the local government institutions as close as possible to the people;

There is nothing in the decree or order that supports self-governance. On the contrary; a government that they have not chosen will lead the people. This therefore equates to DICTATORSHIP. In such case there will be disharmony, lack of democracy and lack of transparency because any government that is not chosen by the people will feel that it has no reason to be answerable to the people. This will make the people of the land as far removed from the local and central government institutions as possible. There will be no trust or respect from the people to the government and vice versa. This situation can easily lead to rebellions and strife. This is a dangerous scenario as it can substantially destabilise the country and might lead to another more catastrophic and unending civil war that will engulf the whole country.

Article 101 in TC 2011 amended 2015.  

Article 101 (k) establish independent institutions and commissions (TC2011)

(t) Perform any other function as may be prescribed by the law.(TC 2011)

The text from the Presidential decree reads as following:

(t) “Which mandates the President of the Republic to establish independent institutions and performs any other function as may be prescribed by law.”

The word “mandate” means, “permit” or “instruct”. This word does not appear in the original text of the TC 2011.This word was added in the Order to justify the reason for the Order and it is a glaring contradiction to any “order” because the President did not seek any “mandate” from any one.

Order 2 Article 101 (b): Further empowers the President to supervise constitutional and executive institutions and provide exemplary leadership in public affairs:

By violating the Constitution and stepping over it the President is yet again claiming to respect the Constitution. How can he respect and disrespect the Constitution at the same time?

An exemplary leader is one who ensures that everyone under his/ her jurisdiction live in peace, harmony, dignity and equality. Do the people of South Sudan feel that the President is achieving all these? It is a matter for the people of South Sudan to answer this question.

Order 2, Article 101 (f) according to the (TC2011) initiate constitutional amendments and legislation and assent to and sign into law bills passed by the National Legislature.

The President’s text is:

  1. Furthermore, Article 101 (f) mandates the President to initiate constitutional amendments.

Again the word “mandate” was inserted in the Constitution by design and again the President is trying to make us believe that he respects “constitutional amendments and legislation”. His order does not need any justification or amendment because the Legislative bodies did not pass it. This means that his order is obsolete.

President Salva Kiir will have to know that whatever “powers “ he has is limited and even that limited power has to come via the people. He might have a room full of handpicked Parliamentarians, but still those Parliamentarians have to listen to the concerns of the People of South Sudan. Such a decision to divide communities, to carve land belonging to some communities and give it to others and to appoint governors that do not represent the people is a recipe for disaster.

Governments around the world appoint advisors, lawyers, strategists, etc. in order to help and advise them with decisions especially in matters of national and worldwide importance. It is quite clear that President Salva Kiir did not follow this principle in this particular case; instead, he appeared to rely on his own tribal elders, the JIENG Council of Elders, for such advice to the exclusion of remaining 63 tribes of South Sudan. The President should know that his Order will be widely scrutinised and criticised. He should also know that there will be “consequences” as was clearly spelt out by at least two of the Peace Brokers in their statements and reactions to the Presidential Order 36/2015 AD.

At this current time it is impossible for the President of South Sudan to make changes of such magnitude, which can be potentially damaging to the country if he does not seek the view of everyone in the country in the right way. The President can railroad and force his order to be passed by his government, which is 99%, his own SPLA /M supporters but the big question is: WILL THAT MAKE HIS ORDER LEGAL?

The President will have to remember that he has signed a brokered Peace Agreement at the end of August 2015 and the document involved10 states. For him to suddenly turn the 10 to 28 means that he has breached his contract. He will have to annul his contract for the Compromise Peace Agreement BEFORE going ahead with his order. He cannot sign a deal for 10 states and at the same time Order the establishment of 28 states.

This means that in the eyes of the law whatever he does with his order will be rendered ILLEGAL and his Compromise Peace Agreement with Dr. Riek Machar will be legally binding and final. He should never have signed the Compromise Peace Agreement in the first place if he did not believe in Peace. Now it has come to haunt him.

Before the President signed the Compromise Peace deal he should have taken advice from his cabinet, his advisors and the lawyers who are at his disposal nationally and internationally. He has no valid excuse to reverse his decision after he inked the document on 26Th August 2015 with his own very hand and when no gun was put to his head to do it. This perceived “tampering” with the Peace Agreement will not go well with many people in South Sudan and around the world.

When the Peace Agreement is implemented a new constitution for South Sudan, based on IGAD plus signed framework to guide the Transitional Government, will cancel any contradictory elements of the TC2011, including any latest amendment that the President intends to introduce at the 11th hour.

The ways forward to devolve power to the people in South Sudan are as follows:

  1. The implementation of Order be halted, pending the decision on the matter by the Transitional Government of National Unity.
  2. President Salva Kiir needs to work with Dr Riak Machar as his peace partner during the Transitional Government of National Unity, to agree the best way on how to implement devolution of power (or Federalism).
  3. The matter should be tabled in front of the Legislative Assembly of the Transitional Government of National Unity to determine the road map for establishing a devolved government (or Federalism) during the Transitional Period. The National Assembly needs to decide whether to bring forward the proposed arrangement for Federal Governance or keep to the timeline stipulated in the peace agreement. This is the legal mechanism for amending the Peace Agreement, involving the parties and within a framework provided for in the Agreement.
  4. The Government needs to commission survey documentations, projected financial overview / implications, financial/ land compensations, criteria for establishing states, etc. for consultations.
  1. The timeline for implementation of devolving power (Federalism) needs to be agreed by the parties, based on realistic assessment.
  2. Define the powers that will be devolved to the states and counties.
  3. Ask the state Assembly to consult with the people of the States by providing them with all the necessary information as to how their lives will be affected.
  4. Carry a nation-wide voting system or Referendum.
  5. Declare the result in each separate state; in percentage form (The results will definitely be different in each state).

Implement the system of governance agreed upon by the people.

The South Sudanese nation has to be treated as people who have the ability and capacity to be masters of their own destiny.

The author can be reached at ettorealma@aol.com