At some point, one feels that the Judiciary of South Sudan and the Ministry of Justice and Constitutional Affairs deserve appreciation. The institutions have been transparently recruiting employees, especially Judges and Legal Counsels. If you have criticism over the title of this opinion, send it to the address provided.  The two public institutions have set up good examples for other institutions to emulate. To get on, when it comes to public job recruitment, they often advertise vacant posts, vet the applications of the candidates, shortlist the candidates, and interview them both in written and oral. Other sisterly ministries, commissions and departments might have been doing so when recruiting their employees. That is quite amazing.

The best practice in public service job recruitment is to advertise widely in both radio and newspapers so that all people of South Sudan can compete for the positions at any level of government. Merit-based appointments, without advertising the positions, especially when it comes to recruitment into a public office, are not only unlawful but unconstitutional. Merit-based job placements are not suspiciously malicious and discriminatory, as these are usually done behind closed doors (secretive). The alleged merit-based appointments, without advertisements, may lead to appointments of relatives, in-laws, friends and others. All seeking public jobs, once selected use the public fund for their operations, salaries and other facilities, not individual money. It applies to all government employments in all Ministries, primary and secondary schools, including public universities, colleges and vocational institutes.

The reforms, which are gradually expected over time, dictate that formally, vacant posts or new posts should be advertised through the Ministry of Public Service and Human Resource Development after the technical ministry concerned informs of the existence and or necessities of creating and filing such positions. A government recruitment centre would have been constructed, fully furnished with facilities and all written interviews must be held from the venue so established by the Ministry of Public Service and Human Resource Development. The purpose of establishing a recruitment centre is to exclude any third party from interfering and influencing the process of interviews. Only the Ministry concerned, in partnership with the Ministry of Public Service and Human Resource Development, can be the institution to set interview questions and supervise the candidates until the completion of the selection process.  There’s a need for improvement in this process.  While the start is not perfect, there is hope for betterment in future. The other government institutions, which might not been advertising the positions in their ministries, have to learn from the named institutions.

With a lack of transparency in public job recruitment, in one’s mind, one may do so to harm the entire country by denying open competition to all sons and daughters of this great nation. It’s incumbent upon each public servant that, depending on one’s actions or inactions, other families can go hungry, begging, dying, displaced, etc. A mindset that deserves changing. Fraudulent recruitment is an offence punishable by the Penal Code Act 2008. Assuming that auditing of the public institutions is done, if the findings come out that no advertisements have been done in recruiting the staff, the positions occupied at any level of a government department in question are deemed vacant. Whoever might have appointed employees without a transparent process (wider circulation for public competitions) should be compelled to refund the government money from his or her personal assets as a punishment for undermining the integrity and ethics of recruitment.  There are a series of reforms that, when put into motion, could substantially drive the country towards prosperity and peace. Among them are computerized employment, promotion and mandatory retirement. It would create an annual quarter of jobs for the people of South Sudan, as an age limit on computers would delete the name of a retiree from the system. Such a retiree can only be retained on an annual contract when his or her services are needed. In some countries, anyone who clicks at 60 years old must be sent home from the government office and becomes someone else in the community or gets an international appointment. He or she can be recalled when the situation warrants.

The advantage of retirement is that the community can benefit from a retiree in the form of advice and services. Retirement packages must be handled by him or her and in addition to issuing a certificate of service. Jobs are many that can accommodate all South Sudanese without discrimination. A matter of political will to realize the expected reforms. The third line of reform is the protection of public servants from political interference. In some countries, like Kenya and others, all Security Chiefs, the Inspector General of Police, the Army Chief of Staff, the Chief Justice and the Public Prosecutor General are protected by the Law. They are falling within the meaning of Civil Servants, protected by law. They work on contract terms, and until their term(s) of office expires, they can’t be affected by the results of the change of government after a new government is formed following the electoral results. The State employees above would serve their Country without fear of removal from their offices when a new government comes up.

 Let’s learn from our neighbour if it can help. Literally, a couple of amendments to existing laws are needed to include protection provisions for public servants and that can be done by the elected National Assembly. On electoral reforms, there’s a need to procure the electoral materials from trusted agents. The bidding process must be competitive and widely advertised. Rigging of elections starts from the procurement of materials in the first place, partially during the recruitment of polling staff (appointments, as opposed to advertisement, interviews, etc.) and completes at polling stations during voting (voters’ intimidation, misplacement of registers, delay of the opening of the polling stations or closing them too earlier than official time, tallying of results and announcement of results).  Electoral fraud is an unconstitutional means of taking force; that’s the use of force. Severe punishments might have been incorporated in the amendment of the Election Bill (2023). Elections, as known, are the only recognized constitutional means around the world to capture state power. Anything more than that, notwithstanding. Elections can be a path to peace and war, depending on how they are conducted. Remedies have to be available on request, particularly in the Court of Law. The doors to those must be opened to receive petitions seeking to nullify any results at any place, which might sustain irregularities during the polling process.

This Country, South Sudan, is a republic and has laws governing it. The reason for making laws is to organize the Country in terms of good governance, justice, peace, economy, investment, and foreign relations. Selectivity in the application of provisions of laws, wrongly. Without the law, especially strict adherence to the constitution and electoral laws, anyone can declare himself or herself as something else. The last general elections were held in South Sudan, under the one Sudan, in April 2010. No one has heard of elections, except the series of agreements negotiated and arrived at as the result of violence, which displaced and destroyed lives and property.

 The new nation is yet to conduct her democratic elections across various electable offices, which include the President, Members of Parliament at national and state levels (Transitional Constitution of South Sudan (TCSS) 2011 (as amended) and local government elections for the positions of Local Government Legislative Councils, (S.28 (2), City Mayors S. 53 (2), County Commissioners (S. 48 (2) in the wording of the Local Government Act 2009. The appointments of the above local government officials, rather than electing them, deny the democratic rights of the voters and severely derail the service delivery claims to the citizens of the Country. Equally, the fourth reform is to defend the Transitional Constitutional of South Sudan (TCSS) 2011 (as amended). To bring into light, as one of the duties to defend the Constitution, there is a need to form an Ombudsman office with enabling legislation to save as a forum for raising complaints directly instead of expensive remedies available.

The Constitution was promulgated in order to deal with inconsistencies that may crop up in the enforcement of the laws. For citizens to defend the constitution by holding general elections in 2024, as a further extension of the lifespan of the government, is a burden to the Country. The Transitional Constitution of South Sudan (TCCS) 2011 (as amended) prohibits taking or retaining state power by force. For example, TCSS’s Article 4 (1); provides that “No person or group of persons shall take or retain control of State power except in accordance with this Constitution.[1]. At least, at this juncture, the use of force is condemned by our Transitional Constitution. Subsection 3 of the same article places the burden on each and every citizen of South Sudan to resist the use of force, which cannot be possible except by holding democratic general elections. Going by the words of the constitution, taking and retaining power by force are both unconstitutional means of coming and remaining in power. Force primarily hereby means the violent overthrow of the constitutionally elected government through military coups, mutinies and insurrections.

The use of force as an outdated means to come to power is strongly prohibited globally. And any government that is formed by show of force has to convince its citizens and the world's entire world communities that its acts are justified by necessity rather than power greed for convenience in order to gain recognition. It may, otherwise, risk isolation and sanctions by the regional and international communities. Yet, in contrary interpretation, the use of force does not simply mean violent seizure of the government. To some larger extent, the conduct would rationally constitute a good judgment that force has been indirectly used to take or retain state power. Failure to have elections can be interpreted to mean the use of force to stay in power. In another scenario, in order to come to power, the opposition may or might have gone to the bushes, fought deadly wars against the then government, which resulted in the signing of many agreements, and used the agreements to join the Government after inflicting violence on citizens qualifies to fall within the meaning of force to enter the government.

One of the examples is the Revitalized Agreement on Resolution of Conflict in South Sudan (R-ARCISS) 2018, which created huge government and financial expenses. Elections serve as the constitutional means of gaining access to power and resources, which must be granted by general elections. Let’s not dwell much on the excuses of none- the existence of the permanent Constitution. There is no such thing a “permanent Constitution”. Its real naming depends on the level of political development in the Country, such as improved economy and atmosphere of peace, etc., that a constitution becomes to get its name. Leave the issue of making the Constitution of South Sudan to an elected legislature beyond 2024. A lot of consultations, resources and time are necessary to come up with the constitution of the Country, which will be respected and implemented across the Country. As the government is Transitional, let it conduct the general elections under the Transitional Constitution of South Sudan (TCSS) 2011 (as amended).

The writer is a South Sudanese lawyer practising law privately. He can be reached via email: ukongo2004@gmail.com.

The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made are the responsibility of the author, not Radio Tamazuj.

[1] Article 4 (1) No person or group of persons shall take or retain control of State power except in accordance with this Constitution. (2) Any person or group of persons who attempts to overthrow the constitutional government or suspend or abrogate this Constitution commits treason. (3) Every citizen shall have the duty to resist any person or group of persons seeking to overthrow the constitutional government or suspend or abrogate this Constitution. (4) All levels of government shall promote public awareness of this Constitution by translating it into national languages and disseminating it as widely as possible. They shall provide for the teaching of this Constitution in all public and private educational and training institutions as well as in the armed and other regular forces by regularly transmitting and publishing programmes in respect thereof through the media and press.