A call to discourage regional conferences in South Sudan
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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]
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