South Sudan’s Constitution: A case for the 2018 amendment bill – A Juristic Commentary

By Tong Kot Kuocnin

Opinion

South Sudan President Kiir speaks to parliament in 2015 (Fie photo)

South Sudan President Kiir speaks to parliament in 2015 (Fie photo)

August 2nd 2018 (Nyamilepedia) – As this author once wrote about the transitional periods in south Sudanese politics, a series that is still in its third publication stage, there’s yet another transitional period which emerged as the TNLA amended the Transitional Constitution of the Republic on a Bill introduced to the August House by the Hon. Minister of Justice and Constitutional Affairs of the TGoNU to extend lifespan and mandate of the Office of the President, the Office of the FVP, the duration and term of the TNLA, States Governors and States Legislative Assemblies from 12th August 2018 to 12th August 2021.

The Bill sought to amend Articles 66(2), 100(2), 103(A), 164(5) and 165(1) of the Transitional Constitution of the Republic of South Sudan, 2011 (as amended) 2018 to provide for the extension of the term of office of the above organs of the state.

The Bill is cited as the “Transitional Constitution, 2011 (as Amended) Bill, 2018, which of course, shall come into force upon the assent of the president of the republic.

The authority upon which the government relied on is initiated in accordance with the powers vested in the president or the FVP under article 106 A (4)(c)(i) of the Transitional Constitution, 2011 (as amended) as well as powers vested in the National Legislature under Article 55(3)(a) read together with article 199.

On that note, article 66 is amended by replacing its sub-article 2 and it reads: “Notwithstanding sub-article 1 of this article, the duration and term of the current transitional national legislature is hereby extended from 12th August 20188 to 12th August 2021”.

However, what it means here is that, as the duration and term of office of the current TNLA is about to lapse on the 12th of August 2018 as per the provisions of the terms of the agreement as incorporated into the transitional constitution, 2011, the TNLA has been, breathed into it, a new life which upon the assent of the president, comes to life on the 12th of August 2018.

The fears of the TNLA and that of the TGoNU is that, the duration and term of office of the current government shall lapsed on the 12th of August 2018 and therefore, from 13th of August 2018 onward, there will transpire a constitutional vacuum and hence yields an illegitimacy of any government that would be in office comes that time.

The TNLA and its counterparts in the TGoNU introduced these amendments to avoid any constitutional vacuum that may transpire and/or arise should that time comes and which the opposition will used to hit the government in the face as the government will be illegitimate and hence has no any constitutional mandate whatsoever to be in office.

Equally, thereto is the amendment of article 100(2) which reads “Notwithstanding sub-article 1 of this article, the term and mandate of the Office of the President of the Republic of South Sudan is hereby extended from 12th August 2018 to 12th August 2021”.

This has also been done along the same line of thought. The anxiety here also concerns the lapse of the term and mandate of the office of the President beyond what the agreement and the constitution stipulates.

The mandate and the term of office of the President, if any amendment of the constitution to introduce an extension of his mandate and term of office isn’t initiated, will surely come to an end on the 12th of august 2018.

However, any continuation in office by the President after the lapse of his mandate and term of office beyond stipulated period in the agreement and the constitution is hitherto termed as illegal and unconstitutional and hence illegitimate and nobody will waste his time, energy and resources to conduct any official business with such illegal, unconstitutional and illegitimate government.

This is what has exactly been predicted by the Hon. Minister of Justice and Constitutional Affairs and his associates and counterparts in the TGoNU to initiate before time, such amendment to fill any constitutional vacuum which may arise in the future if at all the parties at the negotiation table failed to reach an agreement.

In the event that the agreement is reached, then the terms of the said agreement are expected to prevail over the terms and provisions of the Constitution, and if so, it is what the agreement says that will surely be followed to avoid any recourse to violence as a result of the breach of peace agreement.

The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate before All Courts in South Sudan. His areas of research interest include: Constitutional Law and Human Rights, Rule of Law and Good Governance.


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