By Dr. Lam Akol Ajawin
April 26, 2020 (Nyamilepedia) – I came across a note by the learned lawyer and a friend, Dr. Remember Miamingi, commenting on “a letter making rounds in the social media purportedly from the Minister of Defence, South Sudan”. It is not my intention to comment on whether or not the letter is authentic nor to defend the Minister if it were. I am sure she and her Organization are capable of doing so. My remark concerns what I consider as the central point raised in the letter ascribed to the Minister. And this is whether or not the current Transitional National Legislature composed of the Transitional National Legislative Assembly (TNLA) and the Council of States (CoS) is legitimate given the fact that the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) has entered the Transitional Period.
I think part of the confusion stems from the fact that R-ARCSS itself has termed the successor to the TNLA variously as TNLA and Reconstituted TNLA (Article 1.14). To avoid confusion, we shall adopt in what follows the last terminology regarding the legislative assembly.
1- The author is right in that Article 1.4.4 which was quoted in the letter has nothing to do with the R-TNLA. The correct reference should have been to Article 1.14. However, he is grossly in error when he concludes that “the continuous existence of TNLA shouldn’t be in question….”
2- Article 1.14.2 stipulates that “the TNLA shall be expanded …and reconstituted as follows…”. The author chose to ignore the expression “and reconstituted” which clearly means that the current TNLA and its successor, the R-TNLA, cannot be one and the same. Therefore, the “continuous existence of TNLA” is very much in question; in fact, unconstitutional.
3- R-ARCSS is unambiguous on the end of the Pre-Transitional Period as well as the beginning of the Transitional Period. The Agreement and the subsequent extensions of the Pre-Transitional Period by the Parties, put the end of the Pre-Transitional Period at 22 February 2020. This date, according to Article 1.1.2 and the subsequent extensions of the Pre-Transitional Period marks the beginning of the Transitional Period. This is the consensus of the Parties to R-ARCSS and is never in dispute. We are now in the Transitional Period and therefore Articles 1.4.1, 126.96.36.199 – 188.8.131.52 quoted by the author do not apply. It follows that his conclusion that “TNLA is legal and functioning within the agreement…” is misplaced.
4- This brings us to the question as to when is the R-TNLA supposed to commence its term. Article 1.14.6 provides the answer that “the duration and term of the reconstituted TNL shall run concurrently with that of the RTGoNU, as per the terms of this Agreement, until elections are held.” Hence, the TNL (TNLA and the Council of States) should have been dissolved prior to 22 February 2020 (the date of the institution of the Presidency and hence RTGoNU formation was initiated) to be replaced on that date by the R-TNL (R-TNLA and R-CoS).
5- I failed to get Articles 184.108.40.206 to 220.127.116.11 referred to by the author. There is just Article 1.14.3 which deals with the leadership of the R-TNLA.
6- The comment of the author in his Point 3 that what was needed was “adding new members” to the current TNLA is again in error and is based on his earlier submission that it was only expansion and not reconstitution that will create the R-TNLA.
On the basis of the above, I think it is incongruent for a Minister in the R-TGoNU to appear before the TNLA which has no legal and constitutional basis to exist. In that respect, if the “letter making rounds in the social media” is indeed authentic, then the Minister has a justification to take the position she did.
The author is the chairman of the National Democratic Movement (NDM) and Secretary-General of South Sudan Opposition Alliance (SSOA).
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