STATEMENT: Position of South Sudan Political Parties on the Constitutional Committee

South Sudan Political Parties statement with regards to the technical committee for the review of the Interim Constitution of South Sudan

1/ We, the undersigned South Sudan Political Parties, would like to make the following statement with regards to the work of the technical committee for the review of the Interim Constitution of Southern Sudan 2005.

2/ Following the Presidential Decree No: GOSS/PD/J/002/2011, appointing 24 members of SPLM as Technical Committee to review the Interim Constitution of Southern Sudan 2005, a second decree was issued by the President of GOSS known as Decree No: Goss/PD/J/08/2011 dated 17/ 2/2011 appointing 11 members of other political parties to join the technical committee for the review of the Interim Constitution of Southern Sudan 2005. On 21st February 2011, another decree was issued by the President of GOSS appointing additional 17 members of SPLM making the total of 41 members of SPLM in the technical committee.

3/ Nonetheless, we joined the Committee out of our commitment to the spirit of consensus that emerged from the All South Sudan Political parties Conference held in October 2010. We went to the meetings of the Committee full of hope that we were going to forge ahead together in order to accomplish the great task assigned to us by our leaders of South Sudan. However, the Southern Sudan political parties represented in the technical committee to review the Interim Constitution of the Southern Sudan 2005, hereby declare that our continuity in the said committee has become untenable due to following reasons:-

A/ In our first plenary of the technical committee for the review of the Interim Constitution of Southern Sudan 2005 dated 28/2/2011, we agreed on the rules of procedure for deliberations and decision-making in the Committee and its sub-committees to be by consensus as is the case in all multi-party discussions everywhere. The rules of procedures were violated by the SPLM, who had a majority of 41 members versus 11 members of other political parties thus; they imposed a vote in the second meeting. We objected to this to no avail.

B/ In spite of our previous agreement, the SPLM decided to use the simple majority contrary to what had been agreed upon as a means to reach decisions on contentious issues of vital national interest. This means that no matter what input other political parties may have, their contribution is over- ruled by the majority votes. In this case, the Political Parties found themselves in a difficult situation on how to be effective. Therefore, their participation and performance becomes ineffective in the deliberations of the review committee.

C/ As is usually the case, the Committee was expected to discuss the principles of the Transitional Constitution before embarking on the details. The SPLM members in the Committee were not ready to do so, and we were made to discuss a prepared text, which they had already written and passed prior to our joining of the Technical committee.

D/ Some matters on which there was disagreement in the Committee were referred to the President of GOSS who is the Chairman of the SPLM for ruling. If such a thing happens, then the Committee would have been rendered meaningless. The understanding is that the Committee will have to do its work alone and eventually report to the President of GOSS.

E/ The SPLM was insistent that the executive and legislative institutions of the Government of Southern Sudan complete their mandate given them by the last general elections, that is up to 2015, at the same time they contradicted themselves by insisting that the same institutions continue for a term of 5 years from 9th July 2011, that is up to 2016! This closes the door for the discussion on the transitional arrangements agreed upon in the All South Sudan Political Parties Conference (see Para 3(b) of the Final Communiqué). Our contention is that the current parliament was a sub- system within an old system that does not have legal provision to allow it to be carried forward to the new system in an independent and sovereign Republic of South Sudan as of 9th July.

In accordance with Section 118 (2) of the Interim National Constitution 2005, which states that, “in the event of a vote for secession by the people of Southern Sudan, the seats of the members and representatives of Southern Sudanese in the national legislature shall be deemed to have fallen vacant and the national legislature, being so re-constituted, shall complete its tenure to the next elections period”. This means that as soon as the result of the referendum of Southern Sudan confirms secession, all Southern Sudanese in the national parliament shall lose their seats. It would be impractical, if not impossible, to incorporate such members into Southern Sudan Legislative Assembly, because their original mandate does not include SSLA, as they were directly elected to the National Assembly in the north and not Southern Sudan legislative Assembly in the south. Furthermore, SSLA ceases to exist at the end of the interim period, because it was not elected for an independent state of South Sudan. Therefore there are no provisions in the ICSS for its continuation into the independent state of South Sudan.

The SPLM based their justification for the continuation of the current GOSS institutions after 9th of July 2011 on Article 208(7) of ICSS 2005.The other political Parties believe that Article 208(7) of ICSS 2005 is flawed and irrelevant to the Current Constitutional Review Process.

If Article 208(7) were to hold, then:
(i)The Interim Constitution of Southern Sudan 2005, (ICSS), would have remained in force as it is after the 9th of July 2011, and there would have been no need to carry out a constitutional review process as is currently the case. This review process is all about transforming a regional or sub-national constitution into a national one. That is, to provide for the sovereign constitutional needs of the new independent and sovereign state. It is not and can never be about removing parts that got repealed, for those parts are already redundant.

(ii)The new Republic of South Sudan would be without national and sovereignty institutions, such as the President of the Republic, foreign affairs, national judicial organs, etc. This is because there are no provisions in the ICSS on such matters, since ICSS is a regional or sub-national constitution. This is the meaning of Article 208(7) when it provides that:
“If the outcome of the referendum on self-determination favors 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 obligation shall be deemed to have been duly repealed.”

Why would a national constitution repeal national institutions, etc.?

Article 208(7) is flawed as it was copied without rumination from Article 226(10) of the Interim National Constitution, which stipulates:
“If the outcome of the referendum on self-determination favors 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.”

In the case of the Interim National Constitution, there was no need for an immediate review of it since it already provides for national and sovereignty matters and repeal of some of its parts that relate to Southern Sudan do not affect its national character.

Since the decision on this vital matter of national interest is to be taken by simple majority, then, the views of the other political parties cannot be considered by the SPLM. Therefore, the political parties feel that they cannot be effective in the deliberations of the technical committee simply because the SPLM overwhelmingly exercised the concept of simple majority versus consensus, which is contrary to the procedures already agreed upon.

F/ On power sharing, the other political parties proposed that it is to be 50:50, as discussed in the meeting. This percentage applies to the national, states and county levels.

G/ The other political parties wanted a lean government/legislature in order to save money for front-line services such as health, education, water, roads etc. The SPLM on the other hand want a bigger government because they wanted to accommodate their members who were in northern Sudan.

H/ The political parties strongly believe that public security and external security cannot be under single directorate because this would be tantamount to monopolization of power.

I/ For the above reasons, we the political parties would like to call on the South Sudanese public and the international community to know that if : the SPLM cannot subscribe to the principles of democracy as the wave of 21st century, we hereby declare that we as political parties will not subscribe to such process. We further want to register that we would like to start our new nation on the right foot cognizant of the past lessons we have learned from the African nation states including the Sudan. Furthermore, we would like to state that:-

1- 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;

2- The SPLM does not desire the other Southern Sudan political Parties to participate in a broad-based government of an independent South Sudan. Furthermore, The SPLM feels that they alone liberated South Sudan and as such must be rewarded by forming an SPLM government of independent South Sudan. The unity of South Sudanese at the point of independence is not important to them.

3- The SPLM has clearly shown that it is not committed to democracy, good governance 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.

May God bless us all

The following Political Parties endorsed this press release:

Political Party
Name of contact Person
Signature
UDF
David William

USSP
Felix Charles

SLP
Shadrack Baker

SPLM-DC
Samuel Aban

CPS
Ismail Suleiman

UDSF
Alakeer Malual

SSDF/ Front
Prof/ David Dechan

SDA
Mustafa Elhaj Yousef