Of excessive presidential powers and centralization: Why the 2011 Constitution isn’t the will of the people

[Elisabeth Janaina]

Of excessive presidential powers and centralization: Why the 2011
Constitution isn’t the will of the people


Posted: August 18, 2017 by PaanLuel Wël in Columnists, Commentary,
Contributing Writers, Opinion Articles, Opinion Writers, Roger Alfred
Yoron Modi
0






2 Votes


“In South Sudan, owing to a very poor understanding of international
principles about constitutions, the President thinks he is the
principal author and beneficiary of the Constitution. Many a time, the
President becomes the constitution,” partly reads a manifesto of the
National Salvation Front, a South Sudanese armed Opposition movement,
calling for “crafting and adopting, through a wide consultative
process, a modern, democratic, truly federal constitution with
institutional checks and balances.”

By Roger Alfred Yoron Modi, Juba, South Sudan
Kiir and Wani

President Kiir and VP Dr. James Wani Igga, on independent day

August 18, 2017 (SSB) — President Salva Kiir’s recent firing of 14
Judges including justices from South Sudan court of appeal and the
high court received intense condemnation from the civil society and
members of the legal fraternity who, rightly, see the move as an
interference with the independence of the judiciary and administration
of justice in world’s youngest nation.

The sacked judges have been on an open-ended strike since early May.
Their demands include higher wages and better working conditions, and
the resignation of chief justice Chan Reech Madut who they accused of
having compromised the independence of the Judiciary.

Some of the Judges who have not been dismissed have vowed to continue
with the strike, demanding that president Kiir meets all their
demands, including the reinstatement of the 14 sacked Judges or else
he should dismiss all of them who are on strike.

“We the general assembly of Justices and Judges across South Sudan, in
our urgent meeting held at the Judiciary headquarters in Juba and in
all the states, on this 14th day of July, 2017, have resolved to
continue with our open strike in solidarity with our honourable
dismissed justices and judges until our demands are met,” partly reads
a statement by the Judges.

South Sudan’s Transitional Constitution provides for the establishment
of a National Judicial Service Commission, a body upon whose
recommendation, the president may remove Justices and Judges. But
since independence in 2011, to date, neither the Commission has been
formed nor has the legislation for its operations been enacted.

Kiir has in the past unconstitutionally dismissed Judges, including
the country’s deputy chief justice, Madol Arol Kachuol, who he removed
after an alliance of Political Parties that petitioned the
Constitutionality of the President’s order partitioning South Sudan
into 28 states allegedly indicated that he (Arol) presided over the
case – arguing that the chief justice Chan Reec Madut, who had
publicly congratulated Kiir for the creation of the states, recused
himself due to conflict of interest.

Others like, Justice John Clement Kuc had long resigned citing “bad
administration, corruption, nepotism and favoritism” in the judiciary.

Continues interferences from the executive, coupled with dictatorial
laws, lack of political will, and some loopholes have thoroughly
compromised the independence of the Judiciary, making the attainment
of justice mostly impossible.

By implication, this has also affected, amongst others, the state of
freedom of expression and the media, and democracy in the country
since the courts have been paralyzed and are unable to deliver
justice, especially where the executive seeks to protect its otherwise
unlawful or unconstitutional interest.

Separations of powers and checks and balances have all been
compromised with excessive powers centralized in the presidency.

The President rules by decrees and exercised the excessive powers
given to him by the Transitional Constitution to dismiss elected state
governors and dissolve state legislative assemblies, among others.

Presidential appointments and firing of officials spearheading several
institutions such as the Anti-Corruption Commission, Human Rights
Commission and others, have also comprised the independence and work
of those bodies.

South Sudanese, having struggled for freedom and democracy for
decades, are not happy and not in agreement with the repression today
and the monopoly whereby the President and a clique have hijacked the
Country from birth and continue to hold it hostage using
unconventional and unconstitutional law-making processes.

The people of South Sudan have been caught off guard and did not see
such a systemic and institutionalized repression coming.

Brief Historical Background

When one of Africa’s longest civil wars came to an end, thanks to the
2005 IGAD-brokered Comprehensive Peace Agreement CPA between the
Sudanese government and the Sudan People’s Liberation Movement/A
(SPLM/A), Southern Sudanese were granted, amongst others, a
semi-autonomous government and the right to vote in a referendum to
either confirm unity or secession, the plebiscite which subsequently
led to South Sudan’s Independence.

The CPA also granted for a six-year interim period under which the
SPLM would take 70 percent of the government in the South, the NCP 15
percent and the remaining 15 percent for other political parties
pending general elections. After the death of Dr. John Garang de
Mabior who has been in power for only less than a month, Salva Kiir
took over as First Vice President of the Sudan and President of the
Government of Southern Sudan GOSS, in line with the CPA.

The power sharing was implemented at all levels of government in the
South and consequently, an interim Southern Sudan Legislative Assembly
made up of 70 percent SPLM members appointed by Kiir was formed.

Under this period, many legislations giving excessive powers to the
president, including the power to remove chairpersons and members of
ought to be independent commissions and bodies have been enacted.

And despite entering a new arrangement and era with independence
declaration, those laws continue to be in force, pursuant to explicit
provisions of the Transitional Constitution which the SPLM
single-handedly made for the new nation.

The only Elections were held Seven Years Ago under One Sudan

Though several months behind the constitutionally stipulate period, in
March 2010, the general elections for the Southern Sudan
semi-autonomous region and for the whole of Sudan were eventually
done; the results were contested with several reports and claims of
riggings, intimidations of candidates and voters, and other electoral
malpractices.

Salva Kiir was declared having won the Southern Sudan Presidency by 93
percent, beating his rival Dr. Lam Akol Ajawin. Over 90 percent of the
SSLA seats were won by the SPLM, the same were for the seats of state
governors and state assemblies.

The problems of governance in post-referendum South Sudan

Despite several delays and reneging from both the central governments
in Khartoum and the semi-autonomous one in the South, the CPA stood as
the most successful agreement in the Country’s history in terms of
implementation.

The terms of the CPA, right from the start of implementation, were
incorporated into both the Interim National Constitution of the
Republic of Sudan INCRS and the Interim Constitution of Southern Sudan
ICSS. That, amongst others, made its implementation possible.

But unfortunately, however, neither did the CPA nor the two
Constitutions ICSS and INCR laid down a roadmap as to what shall
happen in the case of secession with regards to power and the system
of rule, and the need for a Constitution for and by the people of the
would be a South Sudanese republic.

Thus, with respect to the referendum vote, the INCRS simply provided
that, “If the outcome of the referendum on self-determination favours
secession, the parts, chapters, articles, sub-articles, and schedules
of this Constitution that provide for southern Sudan institutions,
representation, rights, and obligations shall be deemed to have been
duly repealed.”

Whereas the ICSS provided that, “If the outcome of the referendum on
self-determination favours secession, this Constitution shall remain
in force as the Constitution of a sovereign and independent Southern
Sudan, and the parts, chapters, articles, sub-articles, and schedules
of this Constitution that provide for national institutions,
representation, rights, and obligations shall be deemed to have been
duly repealed.”

The drafters (mediators) of the CPA might have thought that it would
be implemented fully, in letter and spirit, and as a result strong
democratic institutions and space would have been created by the end
of the Agreement that would make it possible for the will of the
people to continue flourishing, regardless of the referendum results.

SPLM dishonored Political Parties Consensus

In 2010, a Southern Sudan All Political Parties’ Conference held in
Juba under the theme “Southern Sudan United for a free, fair and
transparent referendum” came up with a joint Communiqué, agreeing on a
road map for working together before, during and after the referendum
exercise.

The conference which was convened by President Kiir committed itself
“to adhere to the principles of democracy and respect of multiparty
system.”

The Joint Communiqué partly read:

“The parties call on the Government of Southern Sudan (GoSS) and its
ruling party – The Sudan Peoples’ Liberation Movement (SPLM), to
ensure that political parties exercise the freedom of association and
expression all over Southern Sudan. All efforts must be exerted to
redress the political and military consequences of the contested
elections results as these consequences can certainly affect the
referendum process.”

“In the event that separation is the winning option in the referendum,
this Conference shall be reconvened as a National Constitutional
Conference within one month from the announcement of the result of the
referendum to: 1) Carry out a constitutional review on the Interim
Constitution of Southern Sudan 2005; 2) draft a permanent constitution
for the newly independent and sovereign state of South Sudan; 3)
discuss and agree on an interim broad-based national government, under
the current President of the Government of Southern Sudan Salva Kiir
Mayardit, to assume office as of 10 July 2011. This government will be
charged, inter alia, with the duty to carry out the general elections
for the Constituent Assembly that will pass the permanent
constitution; 4) decide on the length of the interim period, necessary
to carry out the general elections for the Constituent Assembly.”

But this Communiqué was never implemented and right after the
referendum results, the ruling SPLM pursued a rather dictatorial path.

Constitution without the approval and participation of the people

Just weeks after the referendum results were declared in favor of
secession; President Kiir formed a Committee to review the Interim
Constitution of Southern Sudan and to make recommendations for
presentation before the Southern Sudan Legislative Assembly SSLA.

Kiir tasked the Committee to, amongst others; suggest the deletion and
insertion of certain provisions to transform the Interim Constitution
“from a regional or sub-national Constitution to a constitution for an
independent state.”

After several outcries on the membership of the committee, the
President added some representatives of the civil societies, religious
groups, and other political parties but still the SPLM constituted
most of the committee’s total membership.

A few weeks later, however, nine political parties withdrew from the
process saying their continuity in the committee became untenable.

The parties jointly accused the SPLM, who had 41 members versus 11
members of other political parties, of using the monopoly of numbers
by imposing a vote in place of consensus during deliberations and
decision-making, in violation of the committees’ rules of procedures.

“The SPLM have no intention to allow the other Southern Sudan
political parties to effectively participate in writing the
transitional constitution of South Sudan. On the contrary, they want
the transitional [Constitution] to reflect the interest of the SPLM
alone,” the nine political parties said at the time.

“The SPLM has clearly shown that it is not committed to democracy,
good govern[ance] and the rule of law. As such and to avoid rubber
stamping only SPLM dictates, we the other political parties have
decided to pull out from the constitutional review committee.”

The parties also disagreed with the committee, arguing that the
Southern Sudan Legislative Assembly was a sub-system within the Sudan
and that there was no legal basis for it to be carried forward in the
independent republic of South Sudan. They said they wanted a shorter
transition, followed by parliamentary elections for the new republic.

The SPLM, the parties argued, violated the roadmap for post referendum
arrangement’s and the spirit of consensus the Southern Sudan All
Political Parties’ Conference adopted in the 2010 Communiqué.

On his part, Dr. Machar who was then Kiir’s deputy both at the
regional government and the SPLM party was also critical of the draft
Constitution and the excessive powers that were given to the
president. Machar, however, went silent on the matters after Kiir
accused him of running a parallel government within his government.

The majority of the public was for a federal system and an
all-inclusive constitutional making but they gave up when the
government insisted that it was only carrying a mere amendment in
order to have a “functioning” Constitution for an Independent State
which was to be declared in a few months’ time.

That, however, was proven wrong, when the document passed by the SSLA,
reportedly after intimidations, and then promulgated by President Kiir
on the date of Independence dubbed Transitional Constitution, made
very many broad changes and introduced new provisions.

The old Constitution was more democratic and considerate of the nature
of South Sudan’s diversity than the new one. That disappointed a lot
South Sudanese though they continued to hope for an amicable redress.

The Constitution extended the terms of the sub-national government of
Kiir for a four year transitional period in the new Country at the end
of which general elections ought to have been done in 2015.

Contrary to the aspirations of many, the Constitution came without
presidential term limit. It further gave the president the powers to
appoint more members of parliament and establish a lower house of the
national legislature called Council of States. This Council of States
would later in a controversial and disputed move, “amend” the
Transitional Constitution to legitimize President Kiir’s partitioning
of the Country into more than the constitutionally sanctioned 10
states.

The new Constitution removed from the States and gave the central
government, among others, one of the key areas of decentralization
which was established during the CPA era: the State Judiciaries.

Scholars have argued that most of the changes and the promulgation of
the Transitional Constitution were themselves unprocedural and
unconstitutional since only a clique of the ruling partly
single-handedly made them without the approval and inclusive
participation of the people of South Sudan.

South Sudan Today

In 2011 the Kiir led government promised and enshrined in the
Transitional Constitution that after independence declaration, a
“Permanent Constitution” would be made through an inclusive,
transparent and equitable participation of the political, social and
regional diversity of the people of South Sudan.

Still, the Transitional Constitution gave the president wide monopoly
over the whole process and in 2012 he established the Commission to
undertake the task.

But several delays, intentionally or otherwise, including the war
ensued and to up to date the Commission failed to deliver and there is
no permanent Constitution to talk about.

General elections stipulated in the Transitional Constitution have not
taken place. The terms of the president, the parliament, and all
elective offices lapsed a long time ago, though they purported to have
extended through a constitutional amendment.

The popular stand is that the South Sudanese government and officials
in power had been legitimized through the formation of the coalition
(unity) government per the IGAD-mediated 2015 peace agreement, though
the legitimacy of the latter itself is currently being questioned due
to the continued war and the fallout among its signatories, some of
whom now consider the pact dead.

The peace agreement has a clear roadmap to addressing the monopoly of
power, providing for improved separation of powers, checks, and
balances, independence of Judiciary and devolution of more power and
resources to other institutions including to the states.

It has provided for review of the establishing legislations (Acts) and
reconstitution of several institutions, including the National
Constitution Review Commission, the Judicial Service Commission, Human
Rights Commission and Land Commission, with specific attention to
their mandates and appointments, to ensure their independence and
accountability.

The agreement further set the parameters of the permanent Constitution
to be made to include initiating of a federal democratic system of
government that guarantees, amongst others, the supremacy of the
people of South Sudan, good governance, constitutionalism, rule of law
and human rights.

The Agreement certainly offered the best options but its
implementation is largely lagging behind amid the raging war.

Though the government insists they are on course, they are doing
totally different things and have up to date neither amended a single
legislation nor have they even incorporated the Agreement into the
Transitional Constitution as required.

IGAD on their part has convened what it calls “a High-level
Revitalization Forum of the parties to the ARCSS including estranged
groups to discuss concrete measures, to restore permanent ceasefire,
to full implementation of the Peace Agreement and to develop a revised
and realistic timeline and implementation schedule towards a
democratic election at the end of the transition period.” But on the
ground, there is no progress of that.

The SPLA/M–IO faction of Dr. Machar has reportedly called on IGAD to
“relinquish leadership of the peace process in South Sudan and allow
for a different and neutral body to take over the process.” They
propose the AU to lead with the support of the international
community.

Several South Sudanese and others have also called on AU to take over
the peace mediation, accusing IGAD of not being credible.

The Troika and EU also reportedly said they “cannot continue to
indefinitely support ARCSS [the Peace Agreement] implementation
activities and institutions if they are unable to contribute to peace
due to the lack of meaningful inclusion of parties to the conflict.”

On the other hand, the national dialogue which president Kiir
initiated, defined its parameters, appointed all its members and can
easily remove them as he wishes, is not showing sign of progress,
partly due to the lack of free space for dialogue, lack of assurances
for the implementation of its outcomes, and the lack of participation
of major opposition groups.

Also, though the South Sudan conflict began in 2013 after SPLM leaders
disagreed among themselves, the current reunification of the SPLM
factions into one party being pursued through President Yoweri
Museveni, purportedly pursuant to the 2014 Arusha Agreement, can never
be a comprehensive alternative.

This is because the only armed SPLM opposition faction is not part of
the process, and because several new armed and unarmed opposition
groups who are not SPLM have emerged.

It is also worth recalling that it was the SPLM leaders, as united
before the war, whom discouraged democracy and made the bad laws and
the Constitution currently governing the country. Their mere unity
without addressing the issues of war and governance facing the Country
cannot be a remedy.

Conclusions

While a lot has been voiced on the need to urgently restore peace, it
is crucial that to maintain peace, whether through an all-inclusive
revitalization of the ARCSS or through a new and genuine initiative,
priority should be given to an all-inclusive Constitution making, in
an environment free of fear and intimidation.

This is where South Sudanese for the first time would be able to
discuss and address the issues they have been continuously deprived
of: excessive powers of the president, separation of powers, checks
and balances, independence of the judiciary, democracy, federalism,
and a lot more about the Constitution they want.

This will also lead to the first ever elections in the youngest
nation, where currently none of its leaders has a direct mandate from
the people.

For unchecked and unaddressed issues of powers have only resulted in
the use of those powers to buying loyalty at the expense of democracy
and services, dividing the people in an attempt to gain military
victory—all these keep only acerbating the conflict while discouraging
the need for a civilian rule with the people’s mandate and
demilitarization of politics as well as de-politicization of military
in South Sudan.

Roger Alfred Yoron Modi, a South Sudanese journalist, is the former
Managing Editor of the Juba Monitor Newspaper and former Chief Editor
of Bakhita Radio. He can be reached via his email:
roger...@gmail.com

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