Tricky legal game between parliament and judiciary
By James Okuk, PhD
“Laws prevented people from doing violent deeds that could be seen – Sophist Critias
In its Sitting No.7/2015 in the First Session (2015) at the National Legislative Assembly’s Main Hall in Juba on Tuesday 20th October 2015, the National Legislature (in its joint NLA and CS Setting) agreed to the Presentation of Transitional Constitution, 2011 (Amendment No.2 for 2015) by Minister of Justice.
In adherence to Article 83(1) Hon. Paulino Wanawilla Unango tabled the draft amendment based on the directives of the Extraordinary Meeting of the National Council of Ministers that was chaired by President Salva Kiir Mayardit on Tuesday 13th October 2015 in Juba where the creation of 28 states got approved as per Republican Establishment Order (EO#36/2015).
According to him, the proposed amendment has been drafted in accordance with powers vested in the President of the Republic under Article 101(f), and also vested in the National Legislature under Articles 55(3)(a) and Article 199 of the Constitution.
The justification was that further decentralization of system of governance has been a popular demand and that H.E. Mr. President decided to respond, subjecting amendment of Articles 162(1), 164(1) and 165(1) which provides for the 10 currently existing states of South Sudan and their Legislative Assemblies and Governors who are supposed to be elected by their eligible residents respectively.
The Amendment is intended to abolish the 10 states and give the President of the Republic more powers to appoint new Governors and Members of the Legislative Assemblies of the new 28 States.
However, the Leader of Minority in the NLA, Hon. Onyoti Adigo Nyikwec, and in practice of his constitutional right (Article 71(b)) of the second reply to a presentation in the August House, raised a Procedural Order by referring to the National Legislature Conduct of Business Regulations (2013) under Chapter IX of Rules of Debate (Sub-Judice Rule 54) which stipulates that “Reference shall not be made to any matter on which judicial decision is pending in such a way as may in the opinion of the Speaker, prejudice the interest of any party to the action.”
As it is known, the matter has been taken to Supreme Court on 16th October 2015 by the National Alliance led by Dr. Lam Akol, seeking a stay of execution and invalidation of the EO#36/2015 because it violates the Agreement on Resolution of Conflict in South Sudan (ARCISS) that was adopted by the National Legislature on 10th September 2015 after it was signed by President Kiir in Juba on 26th August, and because it lacks fundamental legal basis as it violates the Transitional Constitution (2011) and usurps powers of the National Legislature.
Mr. Speaker Hon. Manase Magok Rundial noted the objection in accordance with Article 73 (2) which obliges him to ensure that the Conduct of Business Regulations of the House is respected and enforced. Nonetheless, instead of staying the draft amendment he chose to refer it to the Inter-House Committee that he directed to study the matter before tabling it to the August House in one month time as required by the constitution so that it is discussed and passed by two-thirds majority if the quorum is reached.
Thus, the game of the law-making and law-execution with eagle eye from the non-violence opposition is now at the pitch with a tricky wait for the announcement of the winner. Article (93) of the Transitional Constitution stipulates that “No court or any other authority shall call into question the validity of any proceedings of the National Legislature or any of its two Houses on the basis of violation of its Conduct of Business Regulations.”
Also Articles 125 (3)(4)(5) and 126 (1) (a) defines the Supreme Court as composed of the Chief Justice, Deputy and not less than nine other Justices who should act as custodian of constitutional interpretations as they issue final and binding verdicts above Parliaments, Governments or President of South Sudan.
But it has been witnessed that the Chief Justice has already crossed the territory of the ‘Conflict of Interest’: “Your Excellency President of the Republic Salva Kiir Mayardit, I, the Chairman of the Aguok Community in Juba, Justice Chan Reec Madut on behalf of the entire Aguok Community and on my own behalf seize to take this opportunity to congratulate you for your bold decision for the creation of Gogrial State among others …Go ahead with the implementation and we are fully behind you.”
Will the Chief Justice excuse himself from the Panel of Supreme Justices so that the ruling is not prejudiced and justice aborted on the petitioned matter that is now before him at the Court Room? What a Civil Game!
The Judiciary might have desired the Parliament to endorse the EO#36/2015 first before the verdict of the Supreme Court on the National Alliance’s Petition. But the Parliament might now wait for the Judiciary to finalize the case before proceeding with the proposed draft constitutional amendment deliberations. The donkey of El-Sheikh is now stuck at the crossroads. Perhaps, the President will take the law into his hands and go ahead with execution of his EO#36/2015 when the thirty days have elapsed by the first week of November instant, especially when names of nominated governors and MPs are now flying to his office. But it is said in political wisdom that unchecked powers corrupts while absolute powers corrupts absolutely. Our democracy is indeed in big trouble.
An ancient Sophist lawyer called Protagoras once presented an eristic court suit argument regarding a conflict in payment of education fees by an intelligent student. They have agreed before that the Sophist will teach him wisdom and virtue in return for money. At the same time the ancient Greek law obliges honoring of contracts that has been entered by the parties. Now before entering the court room the Sophist lawyer said: 1) if the student wins, he must pay according to the agreement; 2) If I win, the student must pay according to the law. But the Student was saying: 1) If I lose, the agreement hasn’t been fulfilled, so I don’t have to pay; 2) but if I win, I shouldn’t have to pay according to law, which now overrides the agreement.
Dr. James Okuk is a lecturer of politics reachable at [email protected]