South Sudan: The Fiasco of Constitutional amendments

By Dong Samuel Luak,
Dong Samuel Luak, a South Sudanese lawyer residing in Kenya(Photo: file)

Dong Samuel Luak, a South Sudanese lawyer residing in Kenya(Photo: file)

Nov 19, 2015(Nyamilepedia) —- If the Transitional Constitution of South Sudan 2011 would have been a patient, the doctors would have written a death certificate long time ago. But thanks  goes to the quakes lawyers who decided to operate under Mr. President if symptoms of unconstitutionality exist, seek legal advice,in the history of constitutional amendment is unprecedented the rate of amendments South Sudan has undergone since independence in July 9, 2011, It has been a vicious circle for the government of South Sudan in particular the Minister of Justice to table proposed amendment bills to the Parliament every quarter requesting the parliament  to amend the constitution just to mention a few:

During an extraordinary sitting in Juba in 2013 the National Legislative Assembly unanimously passed the bill into the law giving two extra years to the National Constitution Review Commission to finish its work on the country’s permanent charter.

The National Council of States Deputy Speaker Remi Olier Itorong described the enactment of the law as historical.

He said it was the first law to amend South Sudan Transitional Constitution 2011.

The National Legislative Assembly Speaker James Wani Igga appreciated the Justice and Constitutional Committee for its remarkable work and the success of passing the law that gives more time to the commission to finish reviewing the nation’s chief document.

On Tuesday March 24, 2015 South Sudan’s parliament voted  to extend President Salva Kiir’s term in office by three years, after elections due to be held in June were called off and negotiations to end more than a year of internal conflict broke up without agreement.

Speaker Manasseh Magok Rundial said parliament overwhelmingly approved Kiir’s extension, as well as similar three-year prolongation of parliament’s own term.

South Sudan’s parliament unanimously approved a peace deal Thursday 20 September 2015 aimed at ending a 20-month violent conflict between government forces and armed rebel groups.

Manasseh Magok Rundial, speaker of the parliament, said it had backed the agreement in an extraordinary sitting.

Today 19 November 2015 the parliament in Juba without a quorum amended the constitution to create new states. The creation of new states threatens to undermine a complex power-sharing formula, the basis of the peace deal, to forge a transitional government.

The deal was brokered by the Intergovernmental Authority on Development(IGAD), an East African bloc that is mediated peace talks. Both sides expressed discontent with the agreement, which calls for a transitional power-sharing and security arrangement.

But the agreement is very clear and precise on what should be done as follows:

13.1. Upon signing this Agreement, the IGAD-led Mediation in consultation with the Parties and other stakeholders shall initiate the formation of a representative National Constitutional Amendment Committee (NCAC), with the mandate to complete the tasks necessary to prepare for the Transition Period and form the TGoNU. The mandate of NCAC shall also extend up to a maximum of twelve (12) months into the Transition Period to draft new or revise, as appropriate, other legislations provided in this Agreement. The Committee shall have competent legal capacity to perform the following tasks:

To draft a Constitutional Amendment Bill within twenty one (21) days upon signing this Agreement. The Bill shall incorporate this Agreement into the Transitional Constitution of the Republic of South Sudan of 2011 (TCRSS). In the event of any contradictions, the provision of this Agreement shall prevail;

13.1.2. Drafting of Amendments to relevant national security legislations that relate to this Agreement (including, but not limited to the SPLA Act, 2009; National Security Act, 2014; The Police Service Act, 2009; The Prison Service Act, 2011; The Wildlife Service Act, 2011), in order to conform relevant national legislation to the provisions of this Agreement. The NCAC shall complete the drafting of these Amendments within forty five (45) days from the date of signature of this Agreement;

13.1.3. Amendments to other legislations and incorporating any reforms relevant to this Agreement shall be completed within the first (1st) year of the date of signature of this Agreement.

13.1.4. To receive the list of nominees of the respective Parties indicated in Chapter I, Article 11.1. of this Agreement, relating to the appointment of additional members to the Transitional National Legislative Assembly (TNLA). The list shall be submitted to the President who shall forward it to the National Legislative Assembly.
13.2. The NCAC shall be composed of eight (8) members nominated as follows and chaired by a representative of IGAD:

13.2.1. GRSS: two (2);
13.2.2. South Sudan Armed Opposition: two (2);
13.2.3. Former Detainees: one (1);
13.2.4. Other Political Parties: one (1);
13.2.5. Representative of IGAD: two (2);
13.3. Upon its establishment, the NCAC shall recruit its own secretariat.

13.4. The Minister of Justice of the Government of the Republic of South Sudan (GRSS) shall receive the draft Amendments to the TCRSS and other legislation relevant to this Agreement prepared by the NCAC and shall present those Amendments to the Council of Ministers and the Transtional National Assambly, within seven (7) days of receiving the Amendments from the NCAC;

13.5. The Transitional National Assembly shall ratify the Amendments to the TCRSS within thirty (30) days upon receipt from the Minister of Justice;

13.6. The President shall assent to the Amendments no later than the end of the Pre- Transition (within 90 days of the signing of this Agreement). The Amended Constitution shall be known as the Transitional Constitution of South Sudan, TCRSS (amended 2015) ;
13.7. Institutions and mechanisms that are necessary for the establishment of the TGoNU provided in this Agreement shall be established or reconstituted during the Pre- Transition Period taking into consideration inclusivity and national diversity of the people of South Sudan.

Reading carefully the text of the agreement on the resolution of conflict in South Sudan today’s fiasco by South Sudan parliament is just a wast of time, the first task of the National Constitutional Amendment Committee (NCAC) amending the transitional constitution 2011 is Article 162(1) which recognizes  only 10 states in South Sudan under the decentralize system of governance. The minister of Justice must present again to the parliament the proposed amendments. The parliamentarians will pass the amendments and the President will assent to the amendments. Knowing that in event of any contradiction the provisions of the agreement shall prevail.

The author is a lawyer and can be reached on dong.luak@yahoo.com 

2 comments

  • Walk out GUYS from South Sudan parliament,but make sure that most of you will go back through your constituencies.

  • GatNor

    South Sudan parliament need a total recall. in real world they would all lose their Jobs.

    North Sudan has been unstable since the Brits left and undermining the national constitution to repress South Sudanese was then the main problem. Now South Sudan is doing exactly what the Arab North Sudanese did.

    Nuer really need to wake up because they don’t want to find themselves 50 years down the road contemplating seperation from the rest of South because of Jaang repressive policies.