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Joseph Nhomlaw Opinion South Sudan

Opinion: Why The Big Size of the Reconstituted Transitional National Legislative Assembly in South Sudan

By Hon. Juol Nhomngek Gec,

Juba, South Sudan,

INTRODUCTION

May 11, 2021 — The issue concerning the size of the R-TNLA has been a hot topic for debate in regards to the struggling Revitalized Government of National Unity (R-TGoNU) in South Sudan. This issue has been raised by many enlightened South Sudanese several times and it came out after the announcement of the R-TNLA on May 10, 2021. 

South Sudan parliament (Photo: File/Supplied/Nyamilepedia)
South Sudan parliament (Photo: File/Supplied/Nyamilepedia)

The concerns and open questioning of the size of Parliament shows that some of our people are following what is happening in the country and are also not happy about the way the direction the R-TGoNU is taking in respect to the representation of the people in the Government.

It is for that reason different South Sudanese educated youth are even ridiculing the government by terming it as for the accommodation for disgruntled groups who have joined rebellion to have opportunities and to make money through the government of South Sudan position as it is the most lucrative way to get rich quickly. 

In support to the negative views of South Sudanese youth on the big size of the government and their favour for the lean government to be established in South Sudan, Mr. Acuil, the favourite South Sudanese Cartoonist in one of his cartoons sometime back illustrated a government official who is thinking of buying V8s, building houses and other good things while taking an oath.

The above bitter views are not without the basis. Those who express negative views and have all right to ridicule the Parliament and the government in general for their big sizes as they exist without delivering touchable services to the citizens as the experiences have shown since 2005.  

Therefore, questioning the size of the Parliament by citizens who term it as for accommodation and it cannot change anything in favour of the citizens is correct to a great extent. This is because it is abnormal and daunting for the nation to have members of Parliament which are far more than the population contrary to the internationally recognized standards which determine the representation in the electoral democracy. 

The question that we need to answer if we have all agreed that the current size of the Parliament in the context of South Sudan is contrarily to the internationally recognized electoral standards is, why do we have R-TNLA in the Transitional Period and will the current size of Parliament will be the size of the Parliament of South Sudan in definitely?

THE SIZE OF THE CURRENT PARLIAMENT AND WHY IS IT PROVIDED IN THE REVITALIZED AGREEMENT 

The international principle on the equality of voting power is governed by the fact that the allocation of seats to constituencies must be based on the population data. This is usually calculated in a way that the number of seats per constituency is determined by dividing the total number of inhabitants or the people by the number of seats, giving the average number of inhabitants per seat and then awarding seats per constituency by dividing the number of inhabitants in that constituency by the average number of citizens per seat ( read more in: the Report by the European Commission for Democracy through Law (Venice Commission) on Constituency Delineation and Seat Allocation adopted by the Council for Democratic Elections at its 60th meeting (Venice, 8-9 December 2017; Study No. 873 / 2017)

In support to the above principle on the allocation of seats per constituency, the Office for Democratic Institutions and Human Rights recommends that constituencies have to be designed on the basis of population numbers as opposed to the number of electors. This reflects the expectation that part of the member’s role is to work with the entire population of the constituency, including those who may not be entitled to vote and will not be counted among the electors.

 The above principles on the allocations of seats per constituency are what the citizens who criticize the size of the current Parliament thought would have been applied in determining the size of the Parliament. Had the above principles been applied, the number of Parliamentarians would have not been six hundred and fifty (650) at the National and one thousand (1,000) at State level respectively representing twelve million people.  

In fact, those who question or criticize the size of the current Parliament are right because the number shows that the representation is done disproportionately. It is even worse when the huge size of Parliament is appointed but not elected and moreover without strong justification as to why such a Parliament with the present population was agreed to. 

The citizens need sensitization in the circumstances of this nature. It is the duty of the government to enlighten or educate citizens as to the reason why the Parliament with big size like the R-TNLA is provided in the R-ARCSS and what is its future status or does it represent the future Parliament of South Sudan? In other words, whether the size of the current Parliament will be the permanent size of the Parliament of South Sudan at both National and State levels.

This article is therefore written to answer the question as to the why the big size of R-TNLA and then give more explanation thereafter. As a lawyer, the first thing I do is always have a defense for my argument and it was the first thing I did when I aspired to become a member of parliament in the R-TGoNU. At that time, the question that I raised was why the big size of the Parliament and would the Parliament with this abnormal size make any difference? 

After raising such questions, I tried to answer the first question as to why the big size of the Parliament as the second question is the practical question which needs practical answers while in the field. Thus, I ventured into research to get an explanation for the size of the R-TNLA.  As a result, I got the answer in Article 1.4.12 of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), 2018. Article 1.4.12 provides that—

The Parties to the R-ARCSS also reaffirm their commitment to the principle of lean government and that the number of members of the future legislature shall be commensurate (proportionate) with the number of the population of the country pursuant to the internationally recognized proportions. The Parties recognize that the high number of the Executive and TNLA is agreed herein on exceptional basis for the purposes of the Transitional Period only and that those numbers shall form no precedent or any precursor for the future.

The reading of the provision of Article 1.4.12 of the R-ARCSS above answers our concerns about the size of the South Sudan Transitional Parliament. It provides that the Parties to the R-TGoNU recognize that the high number of the Executive and TNLA as agreed herein is on exceptional basis for the purposes of the Transitional Period only and that those numbers shall form no precedent or any precursor for the future.

The use of the phrase exceptional basis for the purposes of the Transitional Period implies that the current Parliament does not represent the future Parliament of South Sudan. But it is only intended for the Transitional Period. The deeper interpretation of Article 1.4.12 of the R-ARCSS gives us the sense that this Article was based on the reality of the war to an end by accommodating all the oppositions in the same government. The big size of the Parliament appears to have been agreed by the Parties to the R-ARCSS to stop war so that the Parliament Constitution is written and census conducted. 

It is through the Permanent Constitution of South Sudan, the Principles of political representation in the Parliament will be clearly, which shall be in accordance with the number of the population of the country pursuant to the internationally recognized proportions as stated in Article 1.4.12 of the R-ARCSS. In order to get the accurate population of South Sudan the population census should be conducted. In order to conduct credible census, lasting peace and stable security must be achieved. 

The lasting peace and stable security can only be achieved through appeasing every interest group in the country. The fact is that without the interest group being proportionally accommodated in the government no lasting peace and stable security cannot be attained as there is no law and strong government in the country to restore law and order. 

The foregoing explanation is the rationale for the disproportionate size of the R-TNLA, which will end with the end of Transitional Period. This is why Article 1.4.12 of the R-ARCSS provides that “the Parties recognize that the high number of the Executive and TNLA is agreed herein on exceptional basis for the purposes of the Transitional Period only and that those numbers shall form no precedent or any precursor for the future.”

Importantly, Article 1.4.12 of the R-ARCSS further informs us that the Parties to the R-ARCSS also reaffirm their commitment to the principle of lean government and that the number of members of the future legislature shall be commensurate with the number of the population of the country pursuant to the internationally recognized proportions as stated in the Venice Commission’s Code of Good Practice in Electoral Matters.

THE FUTURE LEAN GOVERNMENT AND THE INTERNATIONAL ELECTORAL STANDARDS GOVERNING ELECTORAL MATTERS

As already been stated in the foregoing discussion, the Parties to the R-ARCSS have reaffirmed in Article 1.4.12 their commitment to the principle of lean government by ensuring that the number of members of the future legislature shall be proportional to the number of the population of the country based on the internationally recognized proportions

The internationally recognized proportions is the major principle governing the distribution of seats between or among the constituencies. The even distribution of seats is intended to achieve the equality of voting power, which is a crucial standard of the concept of electoral integrity. The equality of voting power is the basis of the electoral representativeness and it represents other aspects of equal suffrage which may impact the allocation of seats to constituencies. 

Another standard governing is that the allocation of seats must be done transparently and impartially in order to avoid the electoral injustice of gerrymandering. Gerrymandering in the electoral context refers to the use of the allocations of seats as the manipulative political tool which in the end distorts the democratic electoral process, undermines democratic and universal election principles, and renders legislative elections a meaningless exercise. The Venice Commission’s Code of Good Practice in Electoral Matters as already referred to in this work above deals with principles that should be applied when interpreting Article 1.4.12 of the R-ARCSS if the equal voting power is to be achieved in South Sudan. 

The European Commission for Democracy Through Law (Venice Commission) Report On Constituency Delineation and Seat Allocation Adopted by The Council for Democratic Elections at its 60th Meeting in Venice on 7 December 2017 explains well the principles governing the allocation of seats. Hence, the following principles are agreed internationally when it comes to the allocation of seats that—

First, The Equal Voting Power Must at Least Apply to Elections to Lower Houses of Parliament, Regional and Local Elections. 

Second, there must also be clear and balanced distribution of seats among constituencies based on the following allocation of seats criteria— (1) population; (2) number of resident nationals (including minors); (3) number of registered voters; (4) possibly the number of people actually voting; and (5) the appropriate combination of the two of these criteria. 

Third, the geographical criterion and administrative, or possibly even historical, boundaries may be taken into consideration. This principle is laid down to help in achieving national diversity, gender and regional representation as provided in Article 1.4.6 of the R-ARCSS.

Fourth, the permissible departure from these principles or norms should not be more than 10%, and should certainly not exceed 15% except in special circumstances where there is a need for protection of a concentrated minority and sparsely populated administrative entity.

Fifth, in order to guarantee equal voting power, the distribution of seats must be reviewed at least every ten years, preferably outside election periods. Generally, census to determine the size of the population is conducted after every ten years which is the standard period agreed internationally. This implies that the review of the constituencies should be conducted after every ten years to ensure that the constituencies are equitably represented at the national and regional level. 

Sixth, where the system is based on multi-member constituencies, seats should preferably be redistributed without redefining constituency boundaries, which should, where possible, coincide with administrative boundaries. 

Seventh and finally, where constituency boundaries are redefined to be a single-member system, the process of redefining must be done impartially and without detriment to national minorities by taking into account of the opinion of a committee, the majority of whose members are independent; this committee should preferably include a geographer, a sociologist and a balanced representation of the parties and, if necessary, representatives of national minorities.

CONCLUSION

In conclusion, having explained the exceptional size of the R-TNLA, the rationale and the requirement of the lean governed based on the internationally recognized standards to be established after the Transitional Period, the citizens who have not understood the reason for having big government should understand that the current size of the R-TNLA is agreed on the exceptional basis that does not form the basis of future precedent. In order to do that the current Revitalized Agreement should be implemented to ensure stable security, conducting census and then the constituencies are redrawn and the general elections are held. 

The writer is the lawyer by profession and the human rights consultant; he is the member of the SPLM-IO and nominated MP representing Cueibet County residing in Juba. He can be reached through email:  nhomngekjuol@gmail.com;


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