The author of this article, a South Sudanese lecturer in politics, says President Salva Kiir’s new decree creating 28 states makes him an enemy of the constitution “equivalent to chief rebel Dr. Riek.” He says the decree is unconstitutional and its legal justification flawed.
On Friday 2nd October 2015 in Juba and quoting as usual Article 101 of Transitional Constitution of South Sudan (2011), President Salva Kiir Mayardit issued “Establishment Order Number 36/2015 for the Creation of 28 States in the Decentralized Governance System in the Republic of South Sudan.”
The order is supposed to come into force in 30 working days (i.e., by 4th November 2015) from the date of signature and in accordance with the attached delimitation map to the Order (8 States for Equatoria and 10 states for Upper Nile and Bahr el Ghazal each).
The President shall appoint gender-balanced (i.e., 25% women) governors and legislative assembly members for these new states with powers of making and promulgating states’ constitutions as well as electing speakers and their deputies respectively.
The President shall also establish States Border Dispute Resolution Committee (SBDRC) to attend to the arising or connected conflicts between the new states.
The core purpose of the Order is implementation of Articles 36 (1) of the Transitional Constitution, which requires promotion of decentralization and devolution of power to the people through the appropriate levels government where they can best manage and direct their affairs.
The president can also issue further operational orders for the new states if deemed necessary. The order will create new constituencies for the incumbent members of the previous States’ Legislative Assemblies on whom additional members shall be appointed by the President but with a total not exceeding 21 MPs for each new state.
The order shall remain effective unless amended by another Presidential Order.
Now, looking critically at the scanned Text of the Presidential Order, it is observation that it bears no signature and sealed of H.E. Gen. Salva Kiir Mayardit; neither is it printed on an official headed paper though it was read over the SSTV.
The Article 166(6) (a) and (b) in the Order was a wrong quote because it is supposed to be about local government and not states’ government. The correct article would have been Article 162(1) and (3), which defines the territory of South Sudan as composed of 10 states governed on the basis of decentralization and with prohibition of altering the name of any state or its capital town except by a resolution of the Council of States approved by a simple majority of all members on the recommendation of the relevant State Assembly.
Further, the quoted Article 101 (b), (f), (k) and (u) was also flawed in relation to the substance of the Order because it has no supplementary read of another legal prescription apart from the Transitional Constitution, and also because it only empowers the President of the Republic to supervise executive institutions and initiate constitutional amendment through the National Legislature mechanisms (see Article 86(5).
The President is not allowed to temper with matters affecting the Bill of Rights, the Decentralized System of Government or alteration of Administrative Boundaries of the States.
Further more, some of the names of the counties that were mentioned in the Order have no legal existence (for example, there is no Kodok or Malakal Counties; what is there is called Fashoda and Makal Counties). Some states have only one county and you wonder why call them states.
Above all, the Order is a violation of the IGAD-Plus’ mediated Agreement on Resolution of Conflict in South Sudan, which was signed by President Kiir himself in Juba on 26th August 2015 and ratified later by the National Legislature so that it becomes supreme over the Transitional Constitution (2011 and amendments).
The Establishment Order may be suspected as rejuvenation of ‘Kokora’ but on tribal enclaves where the lucky ones get their GPAA as David Yau yau got it, though now baptized (except Abyei Area) in the names of 28 states.
By choosing unconstitutionality, President Kiir could be seen as equivalent to chief rebel Dr. Riek who is not bound by any constitution or law in his decisions.
To save the nation from constitutional and peace setbacks and also from more negative economic implications and social strife, I urge President Kiir to nullify the Order with clarification that it is a position of his ruling SPLM-J intended for influencing the direction of the permanent constitutional making process later.
Prof. John Young had previously warned of attempts to adopt the complicated and complex situation of Ethiopian-like ethnic federalism, because it is dangerous for survival of South Sudan at this particular moment.
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