Appeal to All Citizens of the Republic of South Sudan

"We ought to know that it is now our chance the people to decide and have control over how the permanent constitution process would work and made democratic..."

Appeal to South Sudanese Citizenry

By Dr Hakim Moi

If I may, as you all know, the draft Transitional Constitution of the Republic of South Sudan, was recently presented to the GOSS Council of Ministers in Juba, and without much debate, the draft constitution was approved by the Council of Ministers and was scheduled to be table in SSLA today 7 May 2011 for deliberations, debating and amendments as necessary.

While the draft Transitional Constitution carries forward much of the ICSS, 2005, there are also many new provisions added, to bridge existing gaps and need for a new constitution for the birthing of the Republic of South Sudan on 9 July, 2011.

More importantly, the draft constitution that's due for passage by the SSLA, defines the process for making of the permanent constitution of ROSS, one which is Executive-led and falls short of being people-led process.

The constitution embodies the sovereign will of the people, not that of the Government of the day, and therefore the process of writing our permanent constitution as provided for in the current draft, must be made subject to a democratic process, in which the people and not Government Ministers or President has control of who will be writing and making our permanent constitution through a presidentially appointed Constitution Review Commission.

We ought to know that it is now our chance the people to decide and have control over how the permanent constitution process would work and made democratic to ensure that the people and not the Government, are ultimately the sovereign authority from which the Government and the constitution derives its legal status and powers.

Why then it is that the process will be led and driven by the Executive instead of a people-based democratic process? Isn't this a matter of fundamental concern to all of us collectively and individually as the sovereign people of the Republic of South Sudan?

The current draft constitution prepared by the ICSS technical review committee, concentrates powers and decision making in the hands of the Executive.

However, as a sovereign people, we have every right to determine how much power the government should have and what limitations to government powers are necessary. The Government will exercise these powers over us the citizenry, and before the Government does that, we should decide through the constitution making process how much power we want to give to the government. This is not a decision for the government and it should not be permitted to determine for us how much power should be concentrated in the hands of the Executive, Legislature and Judiciary or the Media.

In other words, the draft transitional constitution needs amendments to many of the provisions currently stipulated in the constitution. And this can only be achieved if you the sovereign people exercise your right to press the MPs in the SSLA to amend the draft constitution to factor in your peoples concerns, wishes and aspirations.

As a citizen and a member of South Sudanese community, I therefore would like to appeal to you all to make representations to your MPs in the SSLA from all our ten states, and append your signatures to the Memorandum on Draft Transitional Constitution that has been made public here, and to press SSLA MPs  to give urgent priority and due considerations for the amendment of the draft Transitional constitution as proposed in the Memorandum.

This way, you can demonstrate your people power that your voice matters, and they the MPs and Government Ministers are our servants the people and they should listen to us and do our bidding as to what we the people want. That's what they were elected for, to represent the people not the Government.

Could we all make it a national call to have a say of the people in the constitution making process? The committees have had theirs, now it should be our turn.

Please append your signature to the Memo, regardless of your location in Diaspora, in Kwajok, Malakal, Wau nar, or Juba. Let's hear your voice as clear as it can be. You are free and sovereign, remember, and do have your say on a national issue of serious consequences for our transitional and future institutions of Governance in our Republic of South Sudan.

My two cents

Hakim

Comments
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02/06/2011, 12:49 PM
 - Posted by Nyero Anthony Kenyi
As the drafting of the state interim constitution of the goverment of southern Sudan posted to the southern Sudan national legislative assembly I felt it is important for me to give some analysis, however my purpose of this analysis is Not to castigate the wordings of the new Constitution, neither to disapprove some of its articles. Rather, I meant to point out a few areas that could easily pull the trigger for discontentment and lead to violence. My attempt is to critically look into issues of national interests for peace building. My analysis is not exhaustive; it’s only an attempt to look into the application of the rule of law, powers and responsibilities of authorities, the rights of citizens and adequate & free political participation of all citizens of the new Republic of South Sudan.

Direct quotations from the draft Constitution is in italic form to differentiate them from my comments of the analysts. I have proposed some few suggestions whiles conflict prone areas are stated in the analysis herewithin;

SUPREMACY OF THE CONSTITUTION

ARTICLE 4 (3)

“Every citizen shall have the duty to resist any person or group of persons seeking to overthrow the constitutional government, or suspends or abrogate this constitution”

Comments: It is indeed the duty of all citizens to resist or defend the constitution against any person(s) trying to overthrow, suspend or abrogate it. However, the clause should have been written “that all citizens must within their powers resist or defend the constitution” to avoid the punishment of people forced into such crimes maybe through gun point.




FAIR TRIAL

ARTICLE 19

The draft constitution guarantees the presumption of innocence of a suspect until proven guilty by a competent court of law in a fair trial. However, there is no timeframe stated for an arrested person to be arraigned in court. This could create a room for those who have opposing views to the government, journalists or activists to be arrested and detained for very long period without trial.


PARTICIPATION – ARTICLE 26

(1) Every citizen shall have the right to take part in any level of government directly or through freely chosen representative, and shall have the right to nominate himself or herself or be nominated for a public post or office in accordance with this Constitution and the law”

Comment: Age bracket is not mentioned in the right to participate directly or indirectly in governance. It is not clear through how citizens could participate in governance either by Universal adult suffrage or Electoral College.


COMPOSITION OF THE NATIONAL LEGISLATIVE ASSEMBLY (NLA)

ARTICLE 56

(c) “Such and additional number of members appointed by the President not exceeding sixty-six”

Comment: The total number of NLA is 170, Sixty-six of these members are appointed by the President, giving him/her a percentage of about 39. Therefore, the NLA power to deliberate independent of the powers of the executive is not guaranteed because of the presence of 39% of presidential nominees in the Assembly. There is no clear separation of powers between the executive and the legislature.


ARTICLE 56 (2)

“Members of the Council of Ministers who are not members of the National Legislative Assembly shall participate in the deliberations of the Assembly but shall not have the right to vote”

Comments: The presences and participation of members of the Council of Ministers in the assembly during deliberations are intimidating or regulate elected assembly members views on issues of national concern. Though the Council of Ministers do not have the power to vote, however, votes are normally cast after or based on thorough and independent deliberations. Also Article 110 (2) gives the Council of Ministers total executive powers to prevail over all other executive decisions.



COMPOSITION OF THE COUNCIL OF STATES
ARTICLE 58

(b) “Thirty members appointed by the president”

Comments: According to information gathered, there is going to be 50 members in the Council of States, 30 of them appointed by the President (Article 58b) and two from each state. In total, the executive authority has 96 members in the National Legislature appointed by the president (220 – 96) about 44%. This also intimidates the free will of elected members in the NLA to fully deliberate in the interest of their electorates. Also, with 96 voters appointed by the executive branch of government, it is unlikely that a bill proposed by any executive member will be rejected due to the presence of the Council of Ministers during deliberations and other 96 voters appointed by the president.

COMPETENCES OF THE COUNCIL OF STATES

ARTICLE 59

(g) “Approve changes in state names, capital town and boundaries”;

Comments: The approval and changes of state capitals and names should be the responsibility of a specialize institution appointed by the President and approved by the National Legislature. Since there are contested cases of state names and their capitals, the issue of approval should be given to a special agency so that change of state names and capitals do not appear to be politically motivated.

RULES OF THE NATIONAL LEGISLATURE

ARTICLE 60 (b, c &d)

b) “Any bill passed by the National Legislative Assembly shall be preferred to a standing Inter-House Committee for scrutiny and decision on whether it affects the interest of the states. If the Committee decides that the bill affects the interest of the state, the bill shall be referred to the Council of States for consideration”

c) “Incase the Council of States introduces any amendments in the referred bill, by a two-thirds majority of the representatives or passes it as it is, the bill shall be sent to the President of the Republic for his or her assent without being returned to the NLA” and

d) “No House shall discuss any business of which the other House is seized, until it is finally referred to it”

Comments: According to (b) above, deliberation and decision on a bill by the NLA may be rubbished by the Council of States if not in the states interests and such bill would get Presidential Assent without their approval. This undermines the authority and powers of the NLA as they have no authority to question the decision of the Council of States according to (d) above.


BY-ELECTIONS

ARTICLE 64 (3b)

Filling of vacancy in the NLA if occurred within a year of the transitional period:

“The President shall appoint the successor to the seat within sixty days following the occurrence of the vacancy after consultation with the relevant constituencies, political parties and state legislatures concerned, as the case may be”

Comments: The appointment of a successor to the NLA by the President has security implications and can create tension over who succeeds. The issue could be better sought out by either conducting a by-election for that vacancy no matter how early it occurred or the political party from which ticket the deceased was elected from be given the responsibility to appoint a successor. Political parties, relevant constituencies or the legislatures are only consulted, not necessarily to agree to the decision.

QUORUM IN THE NATIONAL LEGISLATIVE ASSEMBLY

ARTICLE 74 (2)

“Except as otherwise provided for in this constitution, the decision of the NLA shall be by majority votes of the members present and voting. If the votes are equally divided, the speaker or any person presiding shall have no casting vote and the motion shall be deemed to have been lost”

Comments:
i. In the case of protest by walk out after deliberations by opposing members of a bill, the bill would still be passed into law by the members present irrespective of their number.
ii. It is good that a motion with equal votes is lost without a casting vote by the officer presiding or the Speaker. But, the article should create a timeframe or room for that motion to be reintroduced later in the House for further deliberations.

TENURE OF OFFICE OF THE PRESIDENT

ARTICLE 100

“The tenure of the office of the President of the Republic of South Sudan shall be four years, commencing from July 9, 2011”

Comments: This provision would not have created an issue if written thus:
“The tenure of the office of the president of the Republic of South Sudan for the transitional period is four years, commencing July 9, 2011 to July 9, 2015.
FUNCTIONS OF THE PRESIDENT

ARTICLE 101 (f, g, r & s)

f) Initiate constitutional amendments and legislation and assent to and sign in law bills passed by the National Legislature”

g) Convene, summon, adjourn or prorogue the National Legislature in consultation with the Speaker”

r) “Remove a State Governor and/or dissolve a state Legislative Assembly in the event of a crisis in the state that threatens national security and territorial integrity”

s) “Appoint a state care-taker Governor who shall prepare for elections within sixty days in the state where the Governor has been removed or the state Legislative so dissolved in accordance with the provisions of this Constitution, the relevant state constitution and the law”

Comments:

i. in (f) above, if the President of the Republic has the right to initiate constitutional amendments, Legislation and finally assent bills into law and has 96 voters in the National Legislature, it is likely that the Constitution shall be quickly amended to suit the executive aspirations irrespective of the peoples’ wishes.
ii. In (g), for the fact that the head of the Executive branch has right to convene, summon and prorogue Assembly period only in consultation with the Speaker, undermines democracy in practice. The act to do the above should have been done by members of the National Legislature through secret vote.
iii. In (r), the office of the state Governor and the State Assembly are filled through democratic means. The removal of the state Governor should therefore be the responsibility of the State Legislative Assembly through impeachment, no matter how urgent a matter might be. The President may suspend a state Governor pending investigation but should not remove him/her without the assembly approval.
iv. In (s), the appointment of a care-taker Governor and subsequent election within sixty days could create tension and threat to security. The provision is silence over the appointed care-taker Governor’s right to contest for that position within sixty days. The provision should be clear about the rights of the appointed care-taker state Governor during the election of the substantive.

PART SEVEN

THE JUDICIARY

JUDICIAL POWER

ARTICLE 123

“In adjudicating cases of both civil and criminal nature, the court shall, subject to the law, apply, inter alia the following principles”:

5e) “Substantive justice shall be administered without undue regard to technicalities”

Comments: This could create injustice and also a violation of Article 19 which guarantees the innocence of accused persons until found guilty by a competent court of law. Under this clause, accused persons could be tried and imprisoned irrespective of any technicalities that might have been breached during the arrest.


The analysis of the Civil Service, Independent Institutions and Commissions would follow later.





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