ANALYSIS: Does the Presidency have power to Allocate States

By Dr. Remember Miamingi,
Photo: President Kiir and his deputies after the swearing in ceremony at the State House.

President Kiir and his deputies after the swearing in ceremony at the State House(Photo credit: supplied).

May 9, 2020(Nyamilepedia)According to a statement by the ‘Presidency’ of South Sudan issued on 7 May 2020, the Presidency resolved to allocate states amongst the Parties to the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS). However, minutes after the statement of the Presidency, the 1st Vice President, in a written statement distanced his party the SPLA-IO from the statement of the Presidency. I will attempt to examine the reasons offered in the two different statements for decisions taken.

1. The Statement of the ‘Presidency’

According to the ‘Presidency’, the decision to allocate states to the Parties was taken in the “spirit of collegial decision-making.” I will leave the question of determining whether this is a correct ‘spirit’ of collegial decision making to experts in spiritual issues. I will rather examine what the R-ARCSS says about this spirit. But before I do so, it may be useful to define the concept of “The Presidency” under the R-ARCSS.

1.1.  What is “the Presidency”?

According to article 1.5.1. “The Executive of the R-TGoNU shall comprise the President, 1st Vice President, and four Vice Presidents (hereinafter collectively referred to as “the Presidency”) …’” So, every time, the R-ARCSS uses the phrase “the Presidency” it refers to the six individuals collectively.  This definition is important to ascertain the legality of the constitution of the Presidency at any given point. So, was “the Presidency” properly constituted per the statement of the Presidency? The answer is, yes! 

1.2. Was the resolution of “the Presidency” consistent with the R-ARCSS?

The answer to this question is not straight forward. But I will attempt to answer it. 

It appears to me that while the Presidency was properly constituted at the time of the meeting, it was not so constituted at the time of decision making. This raises another question. Does the absence of one member of the Presidency at the time of decision-making places the resolution of the Presidency in a legal jeopardy? The answer to this question may depend on the correct interpretations of articles 1.9.6.1.1.; 1.9.6.1.2, 1.9.6.1.4.4. read together with article 1.16.4 of the R-ARCSS.

Pursuant to article 1.9.6.1.1. “Decision making in the Presidency shall be in a spirit of collegial collaboration.” This is a provision of general application meaning that, usually, it should apply to all decisions of the Presidency. However, the R-ARCSS provides exceptions to this general rule of application.  Article 1.9.6.1.2. provides that if the Presidency, fails to reach agreement on “matters of executive administration”, such decision may be taken by 4 members of the Presidency. In addition, article 1.9.6.1.4.4. provides that if the Presidency fails to reach agreement “on matters of supervision of the implementation of this agreement” four members of the Presidency may take the decision provided that one of the four “must be either the President or the 1st Vice President.” 

But what is “executive administration” and what does “supervision of the implementation of this agreement” refer to? These concept terms are not defined in the R-ARCSS. Usually, ‘executive administration’ refers to the performance of executive duties such as management, the act or process of administering and the execution of public affairs as distinguished from policymaking. Allocating responsibility at state and local levels, within the context of the R-ARCSS, appears to me to be more than an act of executive administration. It is a policy decision and should, therefore, fall outside the exception provided in article 1.9.6.1.1. 

But could the decision to allocate states to the parties by the Presidency fall within “supervision of the implementation of this agreement”? The answer to this question could be a ‘yes’ or a ‘no’ depending on how “supervision of the implementation” is defined. If “supervision of the implementation” is defined to include all acts of implementing provisions of the agreement, then allocating states would be a decision taken in pursuit of implementation of the Agreement.

But if it is defined to include only oversight functions over the acts different actors are mandated to implement, then this provision will apply after the act of allocating states, for example. 

1.3. The principle of generalia specialibus non derogant 

To those who believe that the decision of the Presidency falls within the exception related to supervision of the implementation of the agreement, article 1.16.4. provides a further legal challenge to that position. Article 1.16.4. provides that “in sharing State and local government positions the Parties shall take into account the relative prominence each Party has in the respective State or county.” The legal challenge is that R-ARCSS has a specific provision dealing with responsibility sharing. The position of the law is, where there is an inconsistency between a general provision and a specific provision, the specific provision of law prevails.  So, whilst the agreement provides for collegial decision making and for exceptions, these provisions do not apply to responsibility sharing at state and local government levels. This is so because the R-ARCSS specifically place this responsibility with the Parties and not the Presidency. 

2. The response of the SPLA-IO

The SPLA-IO outlined the following reasons for rejecting the resolution of the Presidency: Lack of consensus; inconsistent with article 1.16.4 of the R-ARCSS and violations of articles 1.16.4.1. and 1.16.1.1. I will attempt to address these concerns briefly.

2.1. Interpretation of article 1.16.4

Article 1.16.4 provides for responsibility sharing.  IGAD and the parties have interpreted the whole of article 1.16 to be synonymous with sharing the 10 states among the parties.  I believe there are minor nuances in meaning between the two. Responsibility sharing refers to power-sharing ratios within the states while the sharing of the 10 states refers to dividing the 10 states among the parties in addition to dividing power within those states – in effect giving a responsibility of a state completely to a party.

This view finds support in the absurdity doctrine of interpretation. According to this doctrine, a provision may be either disregarded or judicially corrected as an error if failing to do so would result in a disposition that no reasonable person could approve.  So, if one adds percentages provided for in the agreement and divide the 10 states among the parties in accordance with this, such an interpretation will result in an absurdity. If the percentages provided for in the agreement are references to the number of states and depending on which differentiations and rounding up are applied, one gets different outcomes  ranging from 9.0+ states or 11 states rather than 10 an absurdity. So, either permutation will be an absurdity which the drafter should be presumed by law not to have anticipated.  

The correct interpretation should rather be sharing of positions of Governors, Speakers of State Legislatures, state council of ministers, state legislatures, county commissioners and county councils in all states in accordance with the ratios of responsibility sharing. So, there is no giving a state to a party per se but rather a share of power in the state. The emphasis of the parties on the chief executives of the states, while understandable in the context of our executive system of government, personality and resource driven politics, the parties shouldn’t forget that there is one government of national unity. 

2.2. Specific submissions of the IO

The SPLA-IO submits that whether it is power sharing within the states or sharing of the states among the parties, the R-ARCSS gives the right to make this decision to the parties and not the Presidency. The SPLA-IO is right in this regard in my opinion. The Presidency and the parties are given different and distinct roles under different aspects of the R-ARCSS. Since the Presidency is not constituted of all the parties and since the R-ARCSS did not give the Presidency specific powers to allocate states, the purported resolution of the Presidency should be considered null and void to the extent of its inconsistency.

The SPLA-IO further submits the parties that in the exercise of this power, should be guided by the “relative prominence” of each party in a given state. This assertion is right in my opinion. While objectively determining relative prominence of each party in a state may be difficult, in the past, the Government has conceded that IO’s operations were mainly restricted to the Greater Upper Nile while the IO has asserted that it had prominence all over the country. The truth maybe somewhere in between.

However, I consider the submission by IO in para 2 of its letter to the effect that the resolution of the Presidency was void because the decision was not taken by consensus to be problematic. While there is a general requirement for consensus in the R-ARCSS, there is no specific requirement of consensus in article 1.14.6. Consensus could be implied though, since the parties could not effectively share responsibility if they are not in agreement. The challenge with such interpretation by implication is that it also opens a door to imply that should consensus fail, then the exceptions outlined above should also apply here since the country cannot afford to wait indefinitum to complete the formation of R-TGoNU.

It is also incorrect, in my opinion, for the IO to submit that article 1.14.1.4. allocates one state governorship to the OPP. The article gives OPP 08% of power at state and local governments. Except the parties interprets 08% power sharing ratio to mean one governorship position, IO is entitled to its own interpretation of this provision. Similar points could be made about the submission by the IO that article 1.16.1.1. gives the Government 5 and not 6 states. These are all interpretations and until such interpretation are accepted by the parties or upheld by IGAD, they remain interpretations of each party.

Finally, I wonder how a party that rejected to lead the government in a particular will campaign tomorrow in that state.

The author, Dr. Remember Miamingi, is the Co-Convener of the South Sudan Human Rights Observatory. For more information on this article, he can be reached through his email at remember.miamingi@gmail.com

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