On July 3, 2024, the National Security Service (NSS) Bill was passed by the Transitional National Legislative Assembly (TNLA) in Juba.
The majority of the Opposition members, led by the SPLM-IO, bitterly opposed the Bill during the deliberations. Those of us who objected had well-founded fears. If passed and signed into law by the President, it risks undermining human rights and strengthening the NSS’s abusive powers.
The worst thing about the current National Security Service (Amendment) Bill, 2024 is that its provision on the arrest without warrant is the entrenchment of arbitrariness and abuse of power by NSS. This has several negative implications as it affects the coherencee, cooperation and collaboration among the components of the national security sector. The components are:
The South Sudan People’s Defense Forces (SSPDF), formerly the Sudan People’s Liberation Army (SPLA), NSS (the intelligence organization); the South Sudan National Police Service (SSNPS); the National Prisons Service of South Sudan (NPSSS); the South Sudan National Wildlife Service (SSNWS); and the South Sudan National Civil Defense Service (SSCDS) or fire brigade.
All the above contribute to the security of the country through their intelligence sharing, coherence and collaborative functions. Their functions are facilitated by NSS, which gathers information, analyzes the same and advises each accordingly.
The constitution is aware of the collaborative and cooperative role of NSS, as it can be understood under Article 159 (3) of the Transitional Constitution. However, if the President assents to the Bill, it will change the role, contrary to Articles 1(5), 2, 3, 9 to 34, 35, 36, 45, 46, 51 (on separation of powers), 122 and 159 of the Transitional Constitution.
The likely consequences of the Bill becoming the law is giving NSS more powers than any other components of the national security sector and weakening the entire spectrum. The conflict over roles will get worse. As a result, the current cooperation, collaboration and discipline in the security sector and the failure of information sharing will increase. The victims of the failure will be the civilians.
Due to the above, we found it necessary to oppose the Bill, whose supporters accused us of being against South Sudan. Our argument, which we maintain, is that we do not oppose for the sake of opposing, or because of being in opposition. We oppose based on critical analysis of what should be the correct path for the sustainable future. The National Security Bill, if signed into law, will be a political time bomb, like what happened in Sudan after the establishment of a similar structuree.
In opposing the National Security Bill becoming the National Service Act, 2014 (as amended, 2024), we were guided by experience and lessons from neighboring countries. The decision to oppose any actions or move by the SPLM-IG comes after we make a proper judgement. As the party fighting for reforms for the benefit of the citizens, our position is very clear: Any law that discriminates or is potentially harmful to the majority of ordinary citizens, is a bad law.
The action of the opposition as a whole should be objectively viewed as the commitment to putting South Sudan on the path to sustainable stability. The sustainable stability needs the actions of the authorities to be in accordance with the Constitution. When we talk of the Constitution, we do not mean the written document, but the values contained in it.
The Constitution are values that are respected by all authorities and the citizens, irrespective of the documents that contain them, or without even being put in writing. The values that define the Constitution are the foundation of South Sudan, which the security sector is established to protect for the benefit of all. The common Constitutional values that I have alluded to are those found in Article 1 (5) of the Transitional Constitution of the Republic of South Sudan, 2011 as amended are: justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms.
The values require all citizens, non-citizens, the government and the civil servants to observe as a way of protecting the supremacy of the Constitution. The Constitution binds all persons, institutions, and organs, including NSS. In other words, the Constitution is the product of the will of the people, who are sovereign and because of that, the government must respect it unconditionally. The mandate of NSS is to protect the integrity of the Constitution.
The mandate of NSS is a crucial yardstick of the rule of law and human rights protection. Thus, Article 159 (3) of the Transitional Constitution on the mandate of NSS supports the fact that it is the body tasked with the duty to respect the will of the people, the rule of law, civilian authority, democracy, human rights and fundamental freedoms.
In respecting the above, the people can trust NSS to control crimes in collaboration with other security organs. NSS is central to crime control since it is charged with the internal and external security of South Sudan.
It is in relation to the foregoing, the reform of the security sector and Security Law are considered a priority. The Revitalized Agreement of 2018, in Chapter II, puts the Sector Reform at the heart of the activities, which is an important milestone in the current transitional period and in the run-up to the General Election that will be held as will be determined by the Parties to the Revitalized Agreement of 2018.
As a part of coordination, coherence, uniformity and collaboration, the Revitalized Agreement requires that that the reform of security sector must ensure coordination and collaboration among the organs under the National Security Council and Committee at both National and state levels, whose composition and functions are determined by the National Security law.
The National Security Council is headed by the President who is charged with security sector interagency coordination and collaboration. This implies that all the security institutions must work in coordination through information sharing and referrals to:
Combat all types of crimes; uphold the Constitution; defend the sovereignty; protect the people of South Sudan, their lives and property; defend South Sudan against external threats and aggression; and address any emergencies as well as participate in the reconstruction, and in disaster management and relief operations.
In order to operate efficiently and effectively, the Constitution, read together with the National Security law, gives the National Security Council a mandate to define the strategy to counteract the threats to the Republic of South Sudan. NSS is required to make sure that it is accurate in information gathering, analysis and advice.
It is important for NSS to bear in mind that is it is tasked to implement the Constitution in letter and spirit through information gathering based on facts and correct analysis.
It is important for NSS to respect the civilian authority that can make the people to trust and cooperate with it. Trust is the best strategy of controlling crimes in any country. It is an irreplaceable tool for the prevention and identification of the threats to national security. The threat to national security is any activity that is in violation of law. This is why the framework of the national security must work effectively in the identification of priorities, in the coordination and exchange of information.
The collaboration among the departments of the national security contributes to maintaining and improving the combat capabilities that ensure fast response to all possible challenges.
The organs under the national security sector are collectively referred to as the law enforcement agencies. To succeed, they must cooperate in maintaining law and order, preventing, combating and investigating crimes with the ultimate aim of protecting the lives of the people properties.
For effective control of security, there is a need for coordination and cooperation within the National Security Sector with the collaboration from civil authorities and the civil population. Where there is coordination and collaboration, the respect of the will of the people, the rule of law and order, civilian authority, democracy, human rights and fundamental freedoms are upheld.
In summary, the Bill shows that the reinterpretation of the concept of National Security Service in South Sudan is grossly misunderstood. The question is, where did we go wrong?
The National Security Law is viewed as a tool for protecting wealth and power, rather than the future of South Sudan.
Passing the Bill is an indication that SPLM-IG is resistant to reform and fears ceding power peacefully. The Bill is a strike in the heart of the public and security sector reforms. It is a return to the pre-Revitalized Peace Agreement of 2018. It has, beyond reasonable doubt, legally entrenched the abuse of power and violations of human rights. It is therefore our hope that the President rejects to the Bill.
The author, a lawyer by profession, is the MP for Cueibet County in the National Legislative Assembly, Juba. (nhomngekjuol@gmail.com)
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