Petition against Lakes state’s caretaker governor

Open letter – 22 May, 2013

To: The Speaker of the Council States of the Republic of South Sudan

Subject: Petition against Lakes State’s Care-Taker Governor

Your Honour, we the under signed petitioners felt aggrieved by the decision of Lakes state care-taker governor, Maj. Gen. Matur Chut Dhuol, in relieving us from our duties as state ministers, commissioners, etc. We do hereby express our dissatisfaction by means of this petition and submit to your honourable council of states, as article 59 (b), (e) and (h) of the National Transitional Constitution, 2011 provides that the council states shall be a custodian of the transitional states’ constitutions, which means that it is the watch dog in protecting the states constitutions.

This petition is presented before your August House as article 101(s) of the National Transitional Constitution, 2011 was violated by the care-taker governor.

The article provides that: the president shall appoint a state care –taker governor who shall prepare for elections within sixty days in a state where the governor is removed in accordance with article 101(r).

In the light of the above provision, we submit to your honourable council our petition on the following grounds and issues:

• Our removal from the state executive was illegal as a care-taker governor within the meaning of article 101(s), he has no competence to exercise the powers conferred upon the governor under article 165 of the National Transitional Constitution that he relied upon in his gubernatorial decrees attached. Article 165, of the National Transitional Constitution that Maj. Gen Matur Chut Dhuol relied upon in relieving us was not applicable to a care-taker governor but to the governor elected by the residents of the state. Article 165 (1) provides that: there shall be a governor for each state elected by the residents of the state in compliance with the requirement prescribed by the national elections commission and in accordance with this constitution and relevant state constitution. Article 165(5) states that a state minister may be removed by the governor or on a motion against him/her and supported by two-third of all members of state legislative assembly. Therefore, both his relieves and appointments decrees could not stand as they lack constitutional basis that support them. Gen. Matur is not the governor, but care-taker governor, and the distinction between the two is very clear.

• The care-taker governor Maj. Gen. Matur Chut Dhuol in his decision to reshuffle the state government was one of the major political activities that he had no capacity to do, even within sixty days or after the expiration of sixty days, because his constitutional mandate is only to organize elections within sixty days. Therefore anything that the care-taker governor does after the expiration of sixty days is illegal as his existence in the office itself is unconstitutional and any decision passed by that unconstitutional regime was null and void and had no legal recognition whatsoever after the legally stated time frame has elapsed.

• Maj. Gen. Matur Chut Dhuol, in his decision to relieve and appoint the Ministers, Advisors and commissioners had no legal justification, instead he was violating the constitution, he lacked justification in the sense that he was illegally in the office –after we have taken a keen study at the functions of the president under article 101, we found that other than article 101(r) and (s) which gave the president a power to remove the governor and appoint a care-taker governor with a mandate of organizing elections within sixty days there are no any other provisions that gives a power to appoint a full-time governor after the expiration of sixty days nor was there a provision that extends the care-taking period of the care-taker governor. In this respect, Maj. Gen. Matur Chut Dhuol to this date is neither a care-taker governor nor a governor as his care-taking powers had expired with the expiration of sixty days which ended on 21st of March 2013, because he was appointed on 21st January 2013.

• The care-taker governor Maj. Gen. Matur Chut Dhuol has removed from their positions two commissioners –Yirol West and Wulu counties which was against the local government act, 2009. Even if the state constitution may provide for the removal of the commissioners by the governor, then that power would be exercised by the elected governor, not a care-taker governor .The local government act provides that the commissioners are elected by the people of the county and could be removed from the power through impeachment by the local government legislative council. This position is provided under section 51 of local government act, 2009. As a matter of practice and policy the care-taker governor did not respect the affirmative action of the 25% of the women participation in the government and public life ; he ordered a forceful leave to the state legislative assembly which was totally against the procedure and the conduct of business of the house; he appointed the Director Generals through a gubernatorial decrees, also attached, while DGs are not appointed through decrees but they are normally confirmed by the Council of Ministers after presentation of memo to the council by the Minister concerned. And to make the matter worse, all the twelve (12) DGs appointed are from one community; therefore the nature of his government has ignored the state diversity.

With the above grounds we felt aggrieved and put them before the council of states of South Sudan for consideration and to pronounce itself as far as constitutionalism and rule of law of our country is concerned. Below are our prayers your Honour:

1. The Council of States to pronounce itself on the illegality of gubernatorial decrees that relieved us from our positions and brought others into power.
2. The Council of States to order for our reinstatement in our respective positions as we were appointed by the governor elected by the residents of the state and in accordance with article 165 of the transitional constitution of South Sudan, 2011.
3. The government of Maj. Gen. Matur Chut Dhuol to be declared null and void since it now exists outside the constitution.
4. To uphold democracy, rule of law and public interest, the Council of States to give directives and orders for the conduct of gubernatorial elections in Lakes state in compliance with constitution.
5. The council of states to issue an order compelling Lakes state government to respect human rights and the rule of law.

On behalf of the petitioners:

• Athian Majak Malou, Unconstitutionally Removed Minister of Education, Lakes State

• Makur Kulang Lieh, Unconstitutionally Removed Commissioner of Yirol West County

• Akech Machek Yor, Unconstitutionally Removed Secretary General of the Government of Lakes State

Cc:

• Office of the President of the Republic of South Sudan
• South Sudan legislative Assembly
• John Luk Jok, Minister of Justice and Constitutional Development
• Michael Makuei Lueth, Minster Parliamentary Affairs
• South Sudan Human Rights Commission
• Lakes State Legislative Assembly
• Lakes State Minister of Parliamentary Affairs
• South Sudan Law Society
• South Sudan Advocacy for Human Rights