Formation of “TGoNU” without Constitutional Amendment: Is it a right of necessity?

By Mabor Maker Dhelbeny

In its 55th Extra-ordinary Meeting, held on 30th – 31st January, 2016 in Addis Ababa, Ethiopia, the IGAD Council of Ministers in the communiqué on South Sudan:

(1) “expresses concerned by the recent decision of the “GRSS” to implement the Presidential Order No.36/2015 dated October 2 2015, on the creation of 28 new states, given that such action is inconsistent with the terms of “ARCISS”. And underlined that this action should not delay the formation of “TGoNU” and urges rapid formation of “TGoNU” to enable dialogue on this matter.
(2) calls on the parties to immediately implement, by no later than the first week of February, 2016, for the first phase of transitional security arrangement for Juba in order to provide for establishment of “TGoNU” without further delay.
(3) urges the parties, subsequent to the formation of TGoNU at national level in the absence of agreement on the creation of new states, to suspend further action on implementing the operationalization of 28 states until an inclusive, participatory of the national boundary commission review process, the parties should revert to the provisions of agreement.
(4) calls on the parties to incorporate “ARCISS” into the Transitional Constitution as signed; but confirms the Transitional Government of National Unity (TGoNU) can be formed on the basis of the Agreement on the Resolution of Conflict in South Sudan (ARCSS) and the provisions which render it supreme to the Constitution.”

In my own personal observations to the above official statements, however, it seems the IGAD Council of Ministers has run out of patience and thus would want the South Sudanese parties to form the government of national unity that will bring both of them, including other political forces in the country on board. By instituting the government of national unity at national level that will bring all the political parties on board, indeed it will create trust; build consensus and have the sense of ownership of the Agreement on the Resolution of Conflict in South Sudan. This brings me to the point that the IGAD Council of Ministers repeatedly calls in its communiqué for the parties to immediately form “TGoNU” without amendment of the Constitution, invoked the notion of “Jus necessitates”, a phrase in Latin words which means – “right of necessity”. So the question that may pose itself after receiving the communiqué from IGAD Council of Ministers, is that: “Is it a right of necessity for the parties to form “TGoNU” without Constitutional amendment?” Probably, if the “GRSS”, “SPLM/IO”, “FDs” and other political parties that are partners to the “ARCISS”, agreed to form the “TGoNU” without amendment of the Constitution, then the Calls of IGAD Council of Ministers in its communiqué can be treated as the “right of necessity”, because ‘necessity knows no law’ in the sense that an act which would normally be condemned to be right in law if done under an overwhelming pressure of necessity, can be considered right. In jurisprudence, the phrase – “necessity knows no law” has been developed as a doctrine in which the law imposes right of necessity under the rare given circumstances. But where the necessity for the act, overcomes any fear of penalties, therefore, no useful purpose can be served by punishing the act. Significantly, law recognizes the act as the right of man to do that from which he cannot be dissuaded by any threat of legal punishment. For instance, in a case where the two drowning men clinging to a plank which will not support both of them, the law is therefore, obliged to recognize it as a right [of necessity] of the stronger to use his strength for his own preservation by pushing the other into the water and saving the plank for himself. While parties to the agreement have been at loggerhead since last year, therefore, the GRSS agrees to form “TGoNU” with its partners without amending the Transitional Constitution as the right of necessity. This has already been expressed by the Minister of Information & Broadcasting, Hon. Michael Makuei Lueth, after the fourth meeting of Joint Monitoring and Evaluation Commission (JMEC), charged with overseeing the implementation of peace agreement. This meeting comes thereafter the release of communiqué, which provides the “roadmap” for the establishment of government at national level. In this roadmap, parties are supposed to have a consensus-building approach which consists of two-fold: Firstly, the high level demand of trust amongst the parties – i.e. parties believed by the people to be fair and reasonable members of integrity who have the country’s best interests at their hearts. Secondly, there is a need of a good facilitator who can be able to think on his or her feet and who does not impose or dictate the compromise peace agreement.

As the National Constitutional Amendment Committee (NCAC) is expected to resume its work this week, therefore, the parties might have reached a certain level of consensus by resolving the contentious issues of 28 states and presidential advisors. As Article 13 of the ARCISS, provides the formation of NCAC with eight members, therefore, the Committee is supposed to be the only technical committee tasked with the incorporation of ARCISS into the Transitional Constitutional and thus distance itself from the deliberation of politics. What does this certain level of consensus mean to me and my dear readers? This “certain level of consensus”, means – one party is expected to say: “I do not fully agree with the decision, however, I will not block it and will support it”, or “I can live up with the decision”. For the parties to remove the stumbling block so as to move forward, they must avoid “horse-trading” which is the most disadvantageous of consensus-building approach. It creates bad feelings amongst the parties and makes the agreement reached to remain less effective due to the lack of focus on their real needs and concerns. This however, demonstrates that the consensus-building approach can maximize the flexibility within the public institutions while holding the negotiated solutions to which any decision would be subjected. In consensus, however, parties must seek a mutually acceptable resolution of their differences. Something Fisher and Ury call: “Separating the people from the problem”, while Gail Bingham argues that, “Implementation of the agreement that solves the problem for those involved is probably the most important measure of success…” Ironically, if the “GRSS” forms the “TGoNU” at national level without amendment of the Constitution but on the basis of ARCISS under the provisions which render it supreme to the Constitution as urged by the IGAD communiqué, then it will efface the country’s 28 newly created states. Since there was no government formed without the “grand-norm” in place to borrow the Kelsen’s pure theory of law, therefore, some political analysts observe that the agreement on the creation of more states would hardly be reached through consensus approach by the parties but at the majority votes. Conclusively, it seems this IGAD Council of Ministers communiqué is somewhat equivocal about the formation of “TGoNU” on the basis of “ARCISS”. Furthermore, it will not foster the recent selection of ministerial and deputy ministerial portfolios that was achieved through consensus by the parties with the help of “JMEC” Chair. Finally, without immediate transitional security arrangement in place as stipulated in “ARCISS”, which I think would cast the shadow of doubt to the formation of government of national unity and upon the return of SPLM/IO leader to Juba.

The Writer is an Advocate & Legal Consultant in Juba, the Republic of South Sudan. He can be reached via his email address: [email protected].