By Tong Kot Kuocnin, Nairobi, FEB/12/2016, SSN;
Prior to the end of the year 2015, a wave of jubilation engulfed the country precipitated by Order #36 which created the current embattled 28 states. On 27th of December 2015, another decree cancelling the existing 10 states was issued under the hand of the president and on 31st December 2015, another presidential decree No. 126/2015 was issued for the appointment of the governors of the new states in the country.
However, while the people of South Sudan were engulfed in a lot of celebrations, one thing passed unnoticed either by the president himself, who is the appointing authority or his so-called Presidential Advisor on Legal Affairs, whom many people presumed to be the engine that drives every legal vehicle the president uses.
That is, what we called ‘constitutional vacuum’ in the legal vocabulary, I wished my learned presidential advisor on legal affairs knows this.
This is what this author, being a constitutional law specialist wanted to tackle. The analysis is not about the creation of 28 states and how they were created but on the widest legal and constitutional vacuum created forthwith or brought about by the creation and cancelling of the previous 10 states as per the Transitional Constitution of South Sudan 2011 (Amendment Act, 2015).
As the Transitional Constitution was successfully amended, it gave room and powers to the president to create more states, although it wasn’t so definite that the president has powers to create 28 states but he was given a leeway to create more states depending on any number of states which may be created.
However, when the president cancelled the 10 states and hence appointed 28 governors for the 28 states, the president didn’t turn his another eye, that such series of decrees and orders have created a constitutional vacuum in the states as the 10 Transitional Constitutions of the then 10 states ceased to exist legally and no retroactive force of law anymore.
The names, compositions, emblems, flags, seals, stamps and territories of the former states changed and even the leadership of the then 10 states ceased as some of the leaders failed to maintain their gubernatorial portfolios and some maintained but shifted to other new states with virtually everything new.
However, the question which begs itself here is that, does the Presidential Decree No. 126/2015 have any constitutional and legal force to mandate and confer powers on the governors to appoint commissioners, states secretary generals, ministers, advisors and deputy governors?
The answer is in the negative. The presidential decree does not in any way have any constitutional and legal force it conferred on the governors to appoint their government officials.
The decree only has constitutional and legal force for the appointment of the governors by the president but fell short of any subsidiary instrument having legal force as the president with help of his legal advisor should have issued a separate Presidential Provisional Order conferring powers on the governors, while transitioning and undertaking all necessary procedures to review and redraft new transitional constitutions of the 28 states to form their governments.
This constitutional vacuum grows forthwith with the cancellation of the previous 10 states and should have been supplemented and bridged by a Presidential Provisional Order having a force of law and which confers powers on the governors to operate and use until when the transitional constitutions of various states are adopted and passed into law by both the state’s legislative assemblies and governors respectively.
The leadership mistakenly informed honorable governors that they should use the former transitional constitutions of the 10 states and that there is no need for new constitutions now.
This is such a grave legal blunder in our constitutional law history which my learned Presidential Advisor on Legal Affairs should have avoided in order not to bring shame on us as lawyers.
The defunct transitional constitutions of the then 10 states ceased to exist when the 10 states were dissolved and the constitutions which govern the organs, institutions and persons of the former states hold no any legal retro-activity whatsoever.
Many honorable governors took this misplaced advice and went as far as appointing their governments using and quoting the provisions of the defunct transitional constitutions of the former states which categorically vested and held no any legal and constitutional power to do so.
However, there is as we speak, in existence a widest constitutional vacuum in all the newly created states which can only be bridged if and only if the president issued another presidential decree conferring powers on the governors to appoint their governments and not only for the appointment thereto, but for the states governments to operate because any government whether at the national or local levels, must have a document as a legal instrument having a force of law to operate, and that is, the constitution.
This constitutional vacuum has to be quickly bridged so that further actions taken by the honorable governors must be done within the ambit of the law.
The Presidential Decree No. 126/2015 has no any legal force for the governors to use in appointing or dismissing any official in the state and therefore shouldn’t be used by our beloved governors to bring shame to themselves.
The Presidential Advisor on Legal Affairs miserably failed to heed to the advices of constitutional law specialists to advice the president to issue another separate Presidential Provisional Order having a force of law to confer such powers on governors as are deemed necessary to operate and use while establishing their states governments.
The law dictates that there has to be a separate instrument issued by the higher authority conferring such powers as the case maybe on the governors to use while transiting from post 10 states period to the new era of 28 states.
This is what the law demands. We are not operating in isolation nor are we in an island, but we are operating in a society open to the world and which must conduct itself in accordance with constitutional principles established to govern modern societies.
I urge my honorable governors who are still holding on the establishment and appointment of their government officials in various institutions to do what the law requires and not what individuals who have no knowledge of these established constitutional law principles.
Follow the right procedures to establish states which are governed by the rule of law and not the rule of man.
Follow the rightful procedures to establish States which operate within the parameters of the law, of justice, of equality and of prosperity of the citizens and their states. END
Tong Kot is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi. He specializes in Law, Governance and Democracy. He can be reached via: firstname.lastname@example.org