South Sudan peace process should focus on separation of powers

By Roger Alfred Yoron Modi

This week, IGAD released a “Revised Bridging Proposal” on the High-Level Revitalization Forum HLRF of the Agreement on the Resolution of the Conflict in the Republic of South Sudan ARCSS.

The proposal provides that governance during the next Transitional Period shall be guided by principles and considerations including separation of powers and functions between the legislative, executive and judicial arms of government, as well as maintaining effective checks and balances in the exercise of executive power.

The principles and considerations in the “Bridging Proposal” are indeed steps in the right direction. However, they are not enough. More explicit provisos for their effective realization should be included.

The State of Separation of Powers in South Sudan

Separation of Powers is a fundamental doctrine of constitutional law requiring that the executive, legislative, and judicial branches of government be kept separate to prevent abuse of power. The rationale is also to have each branch possessing certain powers so as to check and balance the rest of the branches. No branch is to infringe upon the powers of the other.

The Transitional Constitution of the Republic of South Sudan TCRSS, in Chapter 3 on The Decentralized System of Governance, briefly mentioned separation of powers as one of the principles that “shall guide devolution and exercise of powers” (see Article 48).

Also, Article 55 provides that the National Legislature shall, inter alia, exercise legislative functions and oversee the Executive.

However, in practice, and due to lack of enough Constitutional provisions for its realization, South Sudan badly falls short on upholding this fundamental principle of separation of powers.

Currently, a number of South Sudan cabinet ministers (executive members) continue to serve as members of the legislature. They attend parliamentary sessions, make influence and decisions at the legislature, and there is no legal provision barring them from doing so. These sharply affect the state of separation of powers as the cabinet ministers cannot do checks and balances on themselves. For separation of personnel requires that a person serving in one branch of government is disqualified from serving in any of the others.

Further, on one hand, the latest IGAD “Revised Bridging Proposal” provides on the term and security of tenure of members of the next legislature, enshrining that the duration and term of the (to be) expanded and reconstituted Transitional National Legislative Assembly TNLA shall run concurrently with that of the Revitalized Transitional Government of National Unity TGoNU until elections are held at the end of the Transitional Period.

However, as far as separation of powers and checks and balances are concerned there is still a problem with Article 188 (b) of the TCRSS which gives the president powers “to dissolve or suspend the National Executive and/or the National Legislature” during a state of emergency.

According to ARCSS, specifically, Article 8.2, the powers, functions and responsibilities to declare and terminate a state of emergency or declare war, shall be initiated by the President, in accordance with the TCRSS (amended 2015), and shall require the agreement of the First Vice President and the Vice President. This again is a problem at the moment since there is a new position for a Third Vice President in the proposal of the HLRF, and circumstances on the ground have changed a lot since 2015 when ARCSS was signed. People have switched sides and new political or opposition groups have emerged.

At the lower levels, Article 101 (j) of the TCRSS also remains problematic as it gives the president the powers to remove a state Governor and/or dissolve a state legislative assembly “in the event of a crisis in the state that threatens national security and territorial integrity.” Both ARCSS and the current “Bridging Proposal” are silent on this provision.

On the Judiciary, ARCSS provides that it shall be independent and shall subscribe to the principle of separation of powers and the supremacy of the rule of law, in accordance with the TCRSS, 2011. ARCSS further provides for reforms of the judiciary including the review of the Judiciary Act.

ARCSS enshrined that the Executive shall supervise and facilitate reforms and reconstitutions of the “Judicial Service Commission (JSC)” paying particular attention to the mandate and appointments, to ensure their independence and accountability:

In fact, even the TCRSS, 2011 provided that the Judiciary shall be independent of the executive and the legislature. The TCRSS provided that “the budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof.”

It further provided that the executive and legislative organs at all levels of government shall uphold, promote and respect the independence of the Judiciary.

But in practice, the situation is very different as the executive continue to run the show in contravention of those principles provided for under the TCRSS and even ARCSS.

In Article 133, the TCRSS provided for the establishment of a National Judicial Service Commission, a body which shall approve the budget of the Judiciary and it shall also be the body upon whose recommendation, the president may remove Justices and Judges. However, despite that, there is no Judicial Service Commission established and no legislation for its establishment has been enacted as expected per Article 133(2) of the TCRSS.

What should be done?

Igad Assembly of Heads of State and Government in their 32nd Extra-Ordinary Summit held Thursday commended the South Sudanese Parties and Stakeholders for making “significant progress” in the ARCSS revitalization process and called upon them to make further compromises and “expeditiously” conclude the process.

The Summit mandated President Omar Hassan Al-Bashir of Sudan to facilitate a second round of face-to-face discussion between President Salva Kiir Mayardit and SPLM/A-IO leader Dr. Riek Machar Teny within two weeks, to, inter alia, “discuss and resolve the outstanding issues on governance and security arrangements including measures proposed in the revised Bridging Proposal of the IGAD Council of Ministers.” Thereafter, President Al-Bashir shall inform President Uhuru Kenyatta of Kenya of the outcome of the discussion between the parties.

The Assembly of Heads of State and Government also decided that President Kenyatta will facilitate the third round of face-to-face discussion between President Kiir and Dr Machar in Nairobi “to facilitate the revitalization process and report the outcome and way forward to the upcoming Ordinary Session of the IGAD Assembly of Heads of State and Government.”

In their joint Communiqué, The Assembly of Heads of State and Government also instructed the IGAD Council of Ministers “to give guidance to Special Envoy for South Sudan on the remaining tasks to finalize the IGAD bridging proposal at the sideline of the 33rd African Union Summit to be held in Nouakchott, Mauritania” from late June to early July.

Therefore, in light of the above, and in order to ensure effective implementation of the latest proposal (IGAD released) on the HLRF that governance during the next Transitional Period be guided by principles and considerations including separation of powers and functions between the legislative, executive and judicial arms of government, as well as maintaining effective checks and balances in the exercise of executive power, the author hereby recommends the following:

1- That, explicit stipulations for separation of personnel be included in the Bridging Proposal. The provisos should disqualify any person serving in one branch of government from serving in any of the others. According to the latest “Bridging Proposal,” the tenure of the current Transition National Legislative Assembly TNLA shall lapse at the end of the coming Pre-Transitional Period. And based on the percentages to be finally agreed upon, the various parties, including the government, shall come up with new members to represent them in the (to be) expanded and reconstituted TNLA. So, actually, coming up with explicit stipulations disqualifying any person serving in one branch of government from serving in any of the others (e.g. a cabinet minister should not double as an MP) will not only help ensure separation of powers and effective checks and balances but also create more seats for each party to give power (roles) to many of their members (allies). It is a win-win in the real sense if the parties will adopt this suggestion.

2- That, explicit provisos withdrawing (overriding) Article 188 (b) of the TCRSS which gives the president powers “to dissolve or suspend the National Executive and/or the National Legislature” during a state of emergency be included in the Bridging Proposal. In fact, the government should not see this suggestion as negative to them. This is a national matter. No one knows about tomorrow and nobody can say with certainty who will continue to be South Sudan’s President for the next years, only God knows. It should be accepted that inserting Article 188 (b) in the TCRSS was a mistake that requires redress now. The redress can be perfectly done through the ARCSS HLRF (Bridging Proposal) since ARCSS itself explicitly provided that its terms shall prevail in the event of conflicts with the provisions of the TCRSS.

3- That, explicit provisos reflecting the current political settings (Bridging Proposal) be made, to override ARCSS, Article 8.2 on the powers, functions and responsibilities to declare and terminate a state of emergency or declare war. In the current “Bridging Proposal” there’s a new position for a Third Vice President, and circumstances on the ground have changed a lot since 2015 when ARCSS was signed. Some have switched sides and new political or opposition groups have emerged. This should be reflected in decision-making in the Final Agreement that will come out of the HLRF.

4- That, explicit provisos overriding Article 101 (j) of the TCRSS which gives the president the powers to remove a state Governor and/or dissolve a state legislative assembly “in the event of a crisis in the state that threatens national security and territorial integrity” be included in the “Bridging Proposal.” Both ARCSS and the current “Bridging Proposal” are silent on this Article 101(j) and it’s highly important that explicit provisos are made in their regard to avoid controversies in the future. Perhaps an agreement and explicit provisos should be made on who and who determines what constitutes a “crisis in the state that threatens national security and territorial integrity” as well as what procedures shall guide that determination. This will massively reduce the possibility of conflicts and as well as help the peace monitors ensure full compliance with the Revitalized ARCSS.

5- That, explicit provisos for full implementation of Article 133 of the TCRSS on the establishment of a Judicial Service Commission and ARCSS provision on the Commission’s reforms and reconstitutions be harmonized since as argued above, there no legislation establishing a Judicial Service Commission. Also, there is no institution called Judicial Service Commission, as far as Independence of the Judiciary is concerned. It was an error that the drafters of ARCSS, 2015 presumed that there is a Judicial Service Commission in South Sudan. That error should be rectified now by inserting a provision in the “Bridging Proposal” for the enactment of an Act for the establishment of an independent National Judicial Service Commission.

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: [email protected]