29 Jan 2020

 

Why Creation Of 32 States Was Unconstitutional

"In sum, the creation of the 32 states was a political act carried out in violation of the Transitional Constitution. The fact that an amendment was made to the Transitional Constitution ex post to give the President such power is immaterial..."

 


By Mark A Deng*

 

Dr Santino Ayuel Longar recently published an article in SouthSudanNation.com, in which he makes two principal claims. The first is that the creation of a plethora of states in South Sudan was not a political act.

The second is that the decision had a valid legislative ground. In his words, the ‘establishment of 28 States in 2015 (and later 32 states) was a result of due parliamentary process, not by the operation of the Order’.

This opinion seeks to provide different interpretations of the subject matter (creation of states) in response to the two claims.

Creation of states, not a political act?

Dr Longar claims that the division of South Sudan into the 32 states was not politically willed, or a political act itself. He states, in part:-

It’s technically inaccurate to characterize the question of states as inherently political. Presenting it as a political issue, it seems, organically arises from a mistaken belief that since the creation of more states in 2015 was a result of the Presidential Executive Order #36 (the Order)…

With all due respect, this totally misrepresents the matter. Clearly, the decision was inherently political. The decision was taken by President Kiir, a political executive, acting in his capacity as a politician and head of nation but a military General at the same time.

The decision was made operative through an executive order, known as…‘the Establishment Order No.36’ (the Order). Executive orders (official directives or instructions) may seem to carry the force of law but they are not legislations; for they are not subject to parliamentary approval, nor can they be vetoed by Parliament. The South Sudanese Parliament (National Legislature), being a mere rubber-stamp institution, has never vetoed any presidential act (ie presidential appointments), let alone an executive order which can be altered only by another executive order.

While the Order does not explain what prompted it (not unusual for any executive order), there’s absolutely no question that it was politically driven, not taken in the public interest. If it were taken in the public interest, President Kiir should not have acted unilaterally and did so swiftly. The South Sudanese public ought to have been consulted first to ascertain what popular support there was for it.

Of course, some government officials have claimed ex post facto that the move was popularly inspired but that’s merely a defence for a bad decision. (For the record, the author is not against the 32 states. His principal concern is one of the means for creating the states because such issue normatively requires a popular process. This is not to mention the states’ long-term financial sustainability in view of the dire economic situation in the country).

There are suppositions about what prompted this controversial decision. One such supposition holds that the move was designed to deny the Sudan People’s Liberation Movement-In Opposition (SPLM-IO) control over oil-producing states (former Upper Nile State and Unity State) in relation to appointing transitional governors for these former states under the Agreement for the Resolution of the Conflict in the Republic of South Sudan (ARCSS) 2015. (The ARCSS collapsed in 2016 but it has been revived, earning a new name as the ‘R-ARCSS’).

The power-sharing provisions of the ARCSS gave the SPLM-IO the discretion to nominate prospective governors for these former states for appointment by the President.

However, the government was extremely uncomfortable with this arrangement presumably because of the special economic significance of these states (oil being the main source of income for the government). To get around this issue, an abrupt decree was issued, declaring the oil-producing areas of these two states as new states that allegedly fall outside the terms of the ARCSS, thereby allowing the government to assume control over them.

However, to justify this decision, to make it appear as though it was done in the interest of the people of South Sudan, the division was applied across the board. Hence, the 32 states. The decision, contestable it remains, raised all sorts of issues, one of which is its constitutional legality.

The ‘establishment of [states] was a result of due parliamentary process, not by the operation of the Order’

Dr Longar asserts that the creation of the 32 states was ‘a result of due parliamentary process’ but does not provide any proof of this. To have been ‘a result of due parliamentary process’ means, if one understands it correctly, that Parliament duly debated the creation of states and approved it by voting on it. This never happened, however. There are not any locatable parliamentary debates about this.

The important question, however, is whether the Transitional Constitution, 2011, the nation’s supreme law, gives the President power to create more states in the country. Put directly, does the Order have a constitutional basis? The answer is no. The Transitional Constitution confers no power on the President to create more states, at least not expressly. The Order lacks a constitutional basis, as such.

Numerous articles of the Transitional Constitution (articles 36 (1), 166 (6) (a) and (b) etc) were cited as sources of authority for the Order but these articles are silent on the creation of states presidentially. They are generally about promoting decentralised governance system, which is yet to materialise in the country, and ensuring popular participation in the government.

However, in 2015 the Parliament passed an amendment Act practically two weeks after the Order was issued to give the President power to create more states as he deems necessary (if less about constitutionally validating the initial decision). Particularly, article 162 (1) was amended. The original text of article 162 (1) declared South Sudan as having ‘ten states governed on the basis of decentralization’. The new wording reads:

Article 162 is amended by replacing its sub-article (1) with the following: The President may for the purpose of efficient discharge of functions of the governments, divide the territory of …South Sudan into states and other areas in accordance with procedures prescribed by law or provisions of such law as may be enacted by the concerned House of the Legislature.

Dr Longar does not account fully for these changes in his article, which, if he did, would have given his argument legal teeth. Rather, he seems to base his argument for the constitutional legality of the Order on article 101 (f) of the Transitional Constitution. Sub-article (f) allows the President to ‘initiate constitutional amendments and legislation and assent to and sign into law bills passed by the National Legislature’.

The problem with relying on this article to validate the Order is that the President acted before seeking or initiating any constitutional amendment. The amendment Act, as mentioned, was passed only retrospectively−one way to fail to make law as Lon Fuller would put it. This leaves Dr Longar’s argument without a firm ground on which to stand.

However, it seems that the end justifies the means in this case, in the sense that a majority of the South Sudanese people seem content with the 32 states. This makes it practically impossible to abolish the 32 states, at least not unilaterally as it were.

Popular support for the 32 states is also working to the government’s advantage, making the SPLM-IO’s demand to reduce the number of states virtually redundant. Yet the SPLM-IO’s position remains intact.

It is highly likely that the parties (SPLM, SPLM-IO etc) won’t reach a consensus on this issue, in which case a referendum, as the R-ARCSS stipulates, could be the last resort.

In sum, the creation of the 32 states was a political act carried out in violation of the Transitional Constitution. The fact that an amendment was made to the Transitional Constitution ex post to give the President such power is immaterial because the amendment applies prospectively, not retrospectively.

Dr Longar’s attempt to defend this unfortunate decision is his personal opinion, not constitutionally justifiable.

*Mark A. Deng is a PhD student at the University of Queensland, Australia.

  

 

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