A call to discourage regional conferences in South Sudan
By Justice Deng Biong
June, 1, 2013 – First, allow me to stress the obvious and that is the fact that we do not have any constitutional vacuum to urgently look for a new one like we are doing these days. What we lack, sometimes, is the will to enforce the existing constitutional and legal provisions accordingly. Another mistake we sometimes commit, whether deliberately or inadvertently, is the creation of institutions not provided for in the Constitution or law and their unjustified empowerment to do the work of duly constituted institutions thereby evidencing our failure to adhere to institutionalism and constitutionalism!
The recent examples of institutions created outside our existing constitutional and legal framework are the so called “Greater Equatoria Conference” and “Greater Bahr el Ghazal Conference”. Greater Upper Nile has not yet organized one and I encourage them not to do so. I need to be convinced by the organizers of these two conferences as to what necessitated their organization or whether their objectives and outcomes could have not been achieved by the relevant constitutional or party institutions!
If the objectives behind these conferences were coordination of issues in regard to effective implementation of the decentralized system and devolution of powers and any other issues related to the states; that might be understood as that is possible in the light of the provisions of Article 59 of the Transitional Constitution of South Sudan (TCSS) ,2011. Since the cited article provides for the competences of the Council of States, one would expect the latter to be the organizer and its Rt.Hon.Speaker to officiate over them and not the RT, Hon.Speaker of the National Legislative Assembly!
For the benefit of those who might not be aware of our constitutional framework, for a reason or another, allow me once more, dear reader, to highlight some relevant provisions in our Transitional Constitution, 2011, to see for yourself a possibility for organizing this type of conferences with such politically charged agenda.
Shortly before our independence, we agreed, through our representatives in the then Southern Sudan legislative Assembly (SSLA) to adopt the Transitional Constitution of South Sudan (TCSS), 2011, that: “…derives its authority from the will of the people and shall be the supreme law of the land. It shall have a binding force on all persons, institutions, organs and agencies of government throughout the Country.” And that: “The authority of government at all levels shall derive from this Constitution and the law.”(See Art.3 (1) (2) of the TCSS, 2011).
After our independence we became free and sovereign in our nascent state. But our sovereignty according to Art.2 of the TCSS, 2011, “… is vested in the people and shall be exercised by the State through its democratic and representative institutions established by this Constitution and the law.”
In other words the preceding paragraphs emphasize; first, the supremacy of the Constitution and its binding force on everybody and institution in the Republic of South Sudan and secondly, that the state or governments shall exercise powers given under the Constitution through constitutionally and legally established institutions. Where do the two conferences, mentioned above, fit?!
Among the numerous resolutions/recommendations made by the two conferences, two recommendations struck my attention most; namely the choice of federalism as system of governance for South Sudan (Greater Equatoria Conference) and the support of the incumbent President H.E.Gen.Salva Kiir Mayardit as presidential candidate in the upcoming 2015 general elections (Greater B.Ghazal Conference).The two conferences were certainly not mandated to pass such resolutions. I see this last resolution as an unnecessary preemption of what might be the position of the SPLM on which ticket Gen. Kiir came to power, when the right time comes and when the Party’s competent body, the 3rd National Convention, decides on the Party’s flag bearer!
On equal basis, I ask the SPLM members who attended the last Greater Equatoria Conference which recommended federalism for governance in South Sudan, while they are crystally aware that the position of their SPLM Party is Decentralization; are you not embarrassed?! Where does your political loyalty lie most? In the community or in the political party which is constitutionally competent to debate these matters?! See Article 5(2) of the SPLM Constitution, 2008 which says the SPLM shall be guided by the principle of Decentralization and devolution of power which was reaffirmed in the preamble to our TCSS, 2011 which says and I quote: “Committed to establishing a decentralized democratic multi-party system of governance in which power shall be peacefully transferred…”Unquote.
Another paragraph of our preamble in the TCSS, 2011, says we are: “Determined to lay the foundation for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law.” Can we achieve unity of our society in a peaceful manner if we encourage these unconstitutional regional bodies?!
Again, if we pick the issue of the Rule of Law mentioned above, it means in simple words that, before deciding any matter, a public officer/servant should ask him/herself, by what legal authority is he or she doing this or that. The organizers of the said Greater regional conferences should have asked themselves, where in our Transitional Constitution, State Constitutions and laws such conferences are provided for and whether they were legally authorized to organize them. They are certainly not provided for and the organizers were clearly acting contrary to the provision of Art.3 (2) of the TCSS, 2011, which says: “The authority of government at all levels shall derive from this Constitution and the law.”
Finally, and in summary, I am opposed to these greater regional conferences and make a call to discourage them for the following reasons:
1) Apart for being unconstitutional, they promote communal politics which stratify the country into communal political blocks and does not assist national unity of our people. E.g., it is not for no good reason why Section 47 (1) of our National Elections Act, 2012, requires that a person nominated for the office of the President must be seconded by ten thousand registered voters from at least seven states, with no less than two hundred voters from each state. This is to ensure electing a President who shall be a real symbol of national unity and representative of all communities
2) The conferences undermine the multi-party system of governance enshrined in our TCSS, 2011. In other words, we have agreed that political power in this country shall be peacefully contested and transferred through nationally representative political parties not communal associations. See Section 16 (2) (f) of our Political Parties Act, 2012, which says a political Party shall be qualified to be fully registered if:
(i) it has recruited as members, not less than five hundred registered voters from each of more than at least eight states;
(ii) the members referred to in paragraph (i) reflect regional and ethnic diversity, gender balance, representation of minorities, youth and special categories groups;
(iii) the political party shall have in its national governing body at least one member from each state.
(iv) the political party shall have branches in all the ten states and is, in addition organized in not less than eight states.
(v) the composition of its governing body reflects regional and ethnic diversity, gender balance and representation of minorities and special categories groups.
3) The choice of what system is good to govern this Country or who should lead it, is not a business of regions or communities, but of political parties as manifested in their political programmes.
Justice Biong is the current Chairperson of the National Public Grievances Chamber-RSS-Juba. He can be reached at [email protected]