SPLM/A Veterans say Salva Kiir violated Sudan’s Constitution

May 20, 2007 — First and foremost, the SPLM/A veterans salute all our heroes and martyrs, who have fallen in the struggle for Sudanese dignity before and after independence and throughout our history and in the struggle for the New Sudan of democracy, freedom, justice, human rights and prosperity for all Sudanese. We salute all those who died as a result of 16 May 1983 uprising that subsequently led to the birth of the SPLM/A. We salute late Kerubino Kuanyin Bol and William Nyuon Bany for successfully fighting Jaafar Numeri’s forces in Bor and Ayod respectively. We salute members of Battalion 104 & 105 for defending the dignity of South Sudan after the abrogation of Addis Ababa Agreement.

Despite the signing of the Comprehensive Peace Agreement (CPA) between the SPLM/A and the National Congress Party (NCP) on Jan, 9, 2005, the Government of Southern Sudan (GoSS) has not been able to change the lives of ordinary Southern Sudanese. The failure of the leadership of the GoSS should not be blamed on the SPLM party as the whole, but on weak leadership of Salva Kiir Mayardit, who is hijacked by con artists from Greater Bhar el Ghazal region.

Since the leadership of the GoSS is intellectually crippled, President Salva Kiir has violated most of the laws enacted by civilized human beings. The only laws that he has not yet violated are the laws of the jungle. The recent reshuffling of Upper Nile State’s government has violated the constitutions of GoNU, GoSS and Upper Nile State. On the 3rd of May 2007, President Kiir issued decree 43 dismissing ministers and commissioners in Upper Nile State. This controversial action generated a lot of debate as to whether or not Kiir’s action was constitutional and legal.

The political structure of the autonomous South Sudan is the system of government in which power is divided between a central government (GoSS) and state governments. The system derives from Western political federalism, which is a political philosophy in which a group of members are bound together with a governing representative head. The term decentralization stated in the Interim Constitution of Southern Sudan (ICSS) is used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political unites (like ten states in the South). In principle, federalism is a system in which the power to govern is shared between the national and state governments.

However, Lt. Gen. Kiir reshuffled the government of Upper Nile State without any regard to the separation of powers between the GoSS and the ten States as stipulated in the Interim Constitution of Southern Sudan (ICSS). In the devolution of powers between states and the GoSS, article 51 (1) (d) states that one of the principles that shall guide the devolution and the exercise of powers include “pursuit of good governance through democracy, separation of powers, transparency, accountability and respect for the rule of law to enhance peace, socio-economic development and political stability”. This article implies that the interim President of the GoSS cannot encroach into the territory of the states without violating the constitutional provisions governing the relationships between the states and the GoSS. Conversely, President Kiir decided to reshuffle state government by consulting with Mr. Pagan Amum—the SPLM Secretary General—rather than asking the opinion of the governor of Upper Nile State whose Constitution stipulates that it is the governor who has the privilege to reshuffle the state’s government.

It is unfathomable whether the President is aware of the existence of article 50 of the Interim Constitution of Southern Sudan (ICSS) which specifies that “Southern Sudan shall have a decentralized system of government with the following levels:

a) the government of Southern Sudan level which shall exercise authority in respect of the people and states in Southern Sudan;

b) the state level of government, which shall exercise authority within a state, and render public services through the level closes to the people; and

c) local government level within the state, which shall be the closest level to the people”.

However novice president Kiir is, he should have noticed that article 51 (2) (b) of the Interim Constitution of Southern Sudan (ICSS) also states that Government of Southern Sudan shall “respect the powers devolved to the states and local government”. One of the powers the ICSS gives to the state governments is the prerogative to reshuffle the executive branches of the ten states. Regrettably, the division of powers between the states and the GoSS was not taken into account when President Kiir unilaterally reshuffled the government of Upper Nile State.

In the decree, President Kiir quoted Article 103 (2) (d) of the Interim Constitution of Southern Sudan (ICSS) as the source of his power to remove constitutional post holders in Upper Nile State. Article 103 (2) (d) states that one of the functions of the President is to “appoint holders of constitutional and judicial posts in accordance with this Constitution and the law”. However, the President’s reliance on this article to justify reshuffling of the Upper Nile State government could be deemed as unashamed ignorance of the jurisprudence of constitutional law. It is yet to be found out whether the President has competent lawyers working with him in the presidency. If the office of the President employed a lawyer as an adviser, and was responsible for quoting article 103 (2) (d) as a legal justification to reshuffle Upper Nile State government, perhaps such a lawyer graduated from military law school where division of powers between the central government and states is not taught. The legal principles governing the division of powers between states and central government are known even by experienced civil servants who have never studied law. A competent civil servant does not need to go to law school to understand basic concepts regarding the powers mostly exercised by the heads of central governments.

The novice lawyers of the presidency need to be informed that the function of the President stated by article 103 (2) (d) to appoint holders of constitutional and judicial posts is applicable only to the GoSS. If the President of the GoSS can also appoint states’ constitutional post and judicial holders as Lt. Gen. Kiir wants us to believe, then, article 50 of the ICSS would have no meaning. There would be no need for ICSS to stipulate that “Southern Sudan shall have a decentralized system of government” if the President of the GoSS has constitutional power to fire and appoint constitutional and judicial post holders in the states. If the President was not intellectually disabled, he would have realized that his use of article 103 (2) (d) to justify reshuffling in Upper Nile State would imply that Southern Sudan has a unitary system of government rather than decentralized system of government as stated in article 50 of the ICSS. Such an action to reshuffle the government of a state could have been possible had the ICSS not given state governments the right to run their own affairs without interference from the GoSS.

Moreover, article 103 (2) (d) the President used is under the heading Functions of the President in the ICSS. Contrary to the position of President Kiir in regard to whether he is constitutionally empowered to reshuffle state governments, article 103 enumerates the functions of the President of the GoSS in relation to affairs of the GoSS. If the President assumed that the powers of the executive branch of the GoSS could be extended to reshuffle state governments, perhaps, he should have taken some courses in South Africa in how to run a constitutional government before managing the affairs of the South. The action he had taken to reshuffle Upper Nile State government could have been acceptable at the time he was a rebel commander who was not subjected to any law in the World. In the jungle, his powers could have extended to private beds of Upper Nile State’s inhabitants. However, the signing of the CPA demands that the laws of the jungle should be set aside and be substituted with constitutionalism.

Under the heading Inter-Governmental Linkages, article 52 (1) (b) of the ICSS states that “in their relationships with each other or with other government organs, all levels of government, particularly Southern Sudan and state governments, shall observe the following:

i- respect each other’s powers and competences; and

ii- Collaborate in the task of governing and assist each other in fulfilling their respective constitutional obligations”.

President Kiir cannot use article 103 (2) (d) to reshuffle a government of a state which has its own constitution unless he is legally arguing that reshuffling a state government is a concurrent power that he can exercise with the governor of Upper Nile State. However, constitutional law does not recognize reshuffling of a state government as a concurrent power in a decentralized system. In most federal jurisdictions in the World, concurrent powers are powers held by both the states and the central governments and may be exercised simultaneously within the same territory and in relation to the same body of citizens. Some of the concurrent powers enjoyed by both the central and state governments are: the power to tax, make roads, protect the environment, create lower courts and borrow money. A common misconception is that concurrent powers are shared powers between the central and state government. However, concurrent powers are a collection of powers that the states and central government have in common, not shared.

The Interim Constitution of the Upper Nile State came into force on 18th December 2006. It was signed by the Governor and endorsed by the Speaker and given a certificate of compatibility by the minister of Legal Affairs and Constitutional Development of the GoSS. Article 101 of the Upper Nile State Constitution lays down the powers of the Governor and includes the appointment of Deputy Governor, state ministers and other holders of constitutional, judicial posts and top civil servants in the state. Moreover, article 115 empowers the Governor to appoint and remove the deputy governor, ministers and commissioners.

Article 168 (2) of ICSS stipulates that “each state of Southern Sudan shall have exclusive executive and legislative competences as set forth in Schedule C of this Constitution”. In other words, the reshuffling of a state government is a prerogative of a governor, who should exercise his powers in accordance with state constitution. There is no single case in most federal jurisdictions in the World where a federal president has a constitutional right to reshuffle a state government. President Kiir and his uninformed advisors might have thought that the power he exercised to appoint governors in 2005 in accordance with the CPA could also be used after the state constitutions came into force. Such reasoning is called legal delinquency. President Kiir has no constitutional power whatsoever to reshuffle a state government without risking violation of the ICSS. Since the Upper Nile State Constitution came into force on 18th December 2006, the President of the GoSS has no legal clout to encroach into the affairs of Upper Nile State. Doing so would violate article 168 (2) of the Interim Constitution of Southern Sudan (ICSS). Besides, article 168 (1) of the ICSS notices that “ there shall be legislative, executive and judicial organs at state level for each state of Southern Sudan which shall function in accordance with… the relevant state constitution”.

We therefore call upon the South Sudan Legislative Assembly to impeach President Salva Kiir Mayardit for the gross violation of the Interim Constitution of Southern Sudan (ICSS) as stipulated by article 105 (2) which states:

“Notwithstanding sub-article (1) above and in case of high treason, gross violation of this constitution or gross misconduct in relation to Southern Sudan affairs, the President or Vice President of the Government of Southern Sudan may be charged before the Supreme Court of Southern Sudan upon a resolution passed by a three-quarters majority of all the members of the assembly, in case of the President, or a two-thirds majority of all members of the assembly in case of the Vice President”.

The Southern Sudan Legislative Assembly is empowered by article 59 (2) (h) to impeach President Kiir since this article states that the house can “impeach the President and the Vice President of the Government of Southern Sudan”. President Kiir has committed a gross violation of the interim constitution and has no moral and legal authority to continue managing the affairs of the GoSS. The members of parliament need to be reminded that the Interim Constitution of Southern Sudan obliges them to protect decentralized system of government in the South. Article 59 (1) stipulates that “ the Southern Sudan Legislative Assembly represents the will of the people of Southern Sudan and shall foster their unity and that of the nation, exercise legislative functions, oversee the Executive, and promote the decentralized system of government in Southern Sudan”.

In view of the fact that the decentralized system of government in Southern Sudan is under threat from President Salva Kiir, the members of Southern Sudan Legislative Assembly have constitutional responsibilities to impeach the President for the gross violation of the Interim Constitution of Southern Sudan (ICSS). Failure to do so would mean that the members of the assembly are not upholding the constitution and the will of the people of Southern Sudan.

For Contact:

Executive Body of SPLM/A Veterans

Juba, South Sudan

Email: [email protected]