By Daniel Juol Nhomngek, Lawyer, Kampala, Uganda, OCT/16/2015, SSN;
Following the announcement of Presidential Order No 36/2015 for the creation of 28 states in Republic of South Sudan instead of the existing 10 states as provided for in the Transitional Constitution of South Sudan (TCSS) 2011 (amended 2015) there have been various reactions from all corners of South Sudan and abroad.
However, they’re mixed, some in favour of the decree while others aren’t. Those against have gone to the extent of declaring the action of the President illegal on various grounds.
Some of those against claim that the creation of new states is an indirect method of grabbing land by the President for Dinka, his tribe mates, while others argue that it is contrary to the spirit of the recent peace agreement signed in Ethiopia or in short, it’s unconstitutional.
Some of the groups advancing the above argument are NGOs forming a coalition against the presidential decree, which include: Assistance Mission for Africa (AMA); Community Empowerment for Progress Organization (CEPO); Citizens for Peace and Justice (CPJ); Dialogue Research Initiative (DRI); EVE Organization for Women and Development; End Impunity Organization (EIO) and Gardet Pentagon.
In the press release of the above-mentioned Organizations that is currently published in Sudantribune website on 8th October 2015 they asserted that the creation of New States is contrary to the provisions of the TCSS.
According to them, it violates the rule of constitutionalism, which ‘poses serious legal and political implications on ground of procedural irregularities, which is the violation of the TCSS, 2011 (amended 2015) when read together with the Agreement on the Resolution of Conflict in South Sudan.
In their opinion, the timing of the decision to create more states is unfortunate and could lead to increased burden on the already over-stretched economic status, national revenue and human resource capacity deficit that exist in South Sudan.
Finally, they argued that the creation of states along ethnic lines will encourage ethnicity and exacerbate the already existing conflict among South Sudanese communities and lead to total loss of efforts made to rejuvenate the destroyed social fabric of our nation.
After advancing their arguments against the Presidential decree they concluded that the president should reverse the decision.
Their arguments are really self-defeating and contradictory in nature. As they pointed out in that press release, “the Republic of South Sudan is politically organized by the Transitional Constitution of South Sudan, 2011 (amended 2015) on two bases to reflect on: unity in diversity and democratic and decentralized system of governance which is reflected in some provisions of the constitution”.
Of course without intending it, they have finished off their argument by making the statement referring to Article 36 (1) of the TCSS as quoted in the above paragraph. By quoting Article 36 (1) they have defeated their argument indirectly. Article 36 (1) provides a basis of decentralization or federalism, which supports the declaration of 28 states.
For instance, Article 36 (1) provides that “All levels of government shall promote democratic principles and political pluralism, and are to be guided by the principles of decentralization and devolution of power to the people through the appropriate levels of government where they can best manage and directs their affairs”.
The term “they can best manage and direct their affairs” is crucial in this argument and without prejudice it is in support to the decision of the President to create more states.
However arguing erroneously, the above-mentioned organizations argued that the Unity of South Sudan can only be achieved by holding citizens together no matter how much they struggle over limited resources that will lead to more hatred among themselves.
The way South Sudanese had suffered since 2005 was immeasurable. The land grabbing was common in big towns due to the lack of decentralization.
The lack of both decentralization and strong government policy on property rights was one of the sources of problems that were affecting all South Sudanese in all circles which in turn was becoming a major source of hatred among different tribes in South Sudan.
Due to the above unfortunate situation, some South Sudanese saw themselves as discriminated in their own country while seeing some other tribes as land grabbers whom they consider to be worse than Arabs.
Thus it is important to point out that the action of the President by creating 18 more states is within the confines of the Transitional Constitution of South Sudan, which is being misinterpreted by the above-mentioned coalition of NGOs.
For instance, these NGOS in their press release quoted article 162 to support their argument yet Article 162 (1) of the TCSS, 2011 (as amended in 2015) read together with Article 36 already mentioned above is the basis of the decentralization that created South Sudan into ten states that are governed on the basis of decentralization.
With due respect, I wonder why did they quote Article 162 in support of their arguments yet it is consistent with the action of the President because the president is promoting the principles of decentralization or federalism that many South Sudanese have been longing for.
It therefore implies that they quoted the law wrongly just to drive their personal interests’ home, which is the basis of injustice itself.
Finally, in trying to show that the action of the President is not supported by law, these NGOs acted as if they are in support of rebels, adding that TCSS, 2011 (amended 2015) does not have an express provision for creation of new States, hence killing their own argument and leaving themselves naked in the legal world.
The question is: if there is no express provision in the TCSS, 2011 that prohibits the creation of new states, why is the action of the President declared illegal?
My general understanding of law is that where there is no law prohibiting any act, any act done in the absence of such a law is not illegal.
The premise of the above general rule of law is common law. In the same way, since there is no law that prohibits the creation of new states or the action of the President to create new states, the new states created are validly created in law.
In other words the action of the president in adding 18 more states to the existing ten is in line with the provisions of the TCSS, 2011. On this ground alone, the action of the president of creating new states is not illegal since no law clearly prohibits it.
Moreover, Article 101 of the TCSS, 2011, empowers the president to declare anything and such thing he declares is legal in law. The reason is that Article 101 appears to have its basis in the doctrine of state necessity which provides that anything which is illegal is made legal because of necessity.
In my understanding, Article 101 was purposely intended as a means through which the President of South Sudan can protect the interest of South Sudanese in any area including the creation of new states if it is in the best interest of South Sudanese and to meet their timely needs where necessary.
In relation to the above argument, it has to be pointed out that the role of the Council of States, which the NGOs mentioned above tends to put above the powers of the President of South Sudan as one of the way to show that the action of the president is illegal is misinterpretation of the Constitution.
As provided in the TCSS, the main role of Council of State as seen from the implication of Article 101 read together with Article 36 and Article 162 of the TCSS, 2011 is advisory role.
They just wait for the decision of the President to approve it and since the decision of the president is beyond their powers, they cannot reject anything that the president has decided unlike the President who can veto their decision as it was seen in the case of General Matur Chut. General Matur Chut is currently a governor of Lakes.
In 2014, Council of States passed unanimous resolution to force the President to remove Matur Chut but the president ignored it and the Council of State did nothing.
Because of the foregoing argument, it must be pointed out that although the law gives Council of States powers of approving new states, the law further gives the president more powers over and above that of Council of State to create new states and then Council of States approves.
It is due to the above argument the Council of States is not expected to oppose what the President has decreed.
Based on the foregoing argument with due respect to the NGOs who argue that the action of the president is not premised in law, it is regrettable to point out that they have misinterpreted the Constitution in regard to the powers of the President to issue decrees as provided in Article 101 of the TCSS.
Article 101 by implication if read objectively puts the President above all including the Constitution.
This is the reason why he can decree anything before the parliament debates it, otherwise in normal Constitutional and Democratic Countries, presidents do not have any powers to remove the elected governors or even dissolve State Assemblies elected by the people, which the president of South Sudan can do by the virtue of Article 101 (r).
Thus the argument that the president of South Sudan does not have any power in law to create new states is baseless and does not hold water in light of Article 101.
It does not hold water because the fact that there is no law which bars the president from creating new states and instead there is a law that allows him to act above the parliament means that President’s decision cannot be invalid in law unless the law expressly provides so.
In fact based on the general rule of law as stated already and which is entrenched in Article 19 (4) of the Transitional Constitution of the Republic of South Sudan, any action which is not prohibited by law is not illegal in itself.
It is therefore important to point out that reading into the existing law the illegality that does not exist therein is illegal because the illegality will never be accepted by the law to be part of it or to create a new law.
The above argument brings me to one thing that I hate most. I hate someone who reads and applies the law subjectively.
Any person that reads the law with intention to bend the law in order to satisfy personal interests always fails to understand the law in full since he or she does not appreciate the law.
As a matter of fact, failure to understand or interpret the law objectively is the cause of injustice itself and South Sudan will never progress unless we give the law its intended meaning objectively.
The argument that the declaration of 28 states is a violation of Peace Agreement is baseless because it is not premised in any law since there is no clear law that prohibits their creation.
NGOs and other people who oppose the creation of new states are trying to create the law where one does not exist.
The attempt to go around while gathering scattered dried leaves of law in order to piece them together to come out with the principle on which the action of the president can be nullified upon is unworkable.
The people who are opposing the creation of new states are being driven by personal interests to satisfy their primordial needs. As a result, they are trying to use the unbending law to put their agenda through, which is impossible; the will of the people must prevail.
The creation of 28 States is out of the will of the people of South Sudan and it cannot affect the peace process since people need peace. Instead, it may support the stability of South Sudan which is the basis of peace.
The reason being is that majority of South Sudanese are happy with the action of the president. In addition, people were the ones who requested their creation and the president was acting on that request.
Thus, what the NGOs, other external powers and rebels have not understood is that peace in South Sudan can only be achieved when all citizens are happy but not through the imposition of one externally.
As I wrote it sometime back in one of my articles, peace is a culture that can be cultivated through achieving happiness of the people but not through satisfaction of the external powers and rebels. Of course, even if rebels think that they have valid reasons such reasons cannot be accepted in the civilized world.
Hence, what the president did by creating 28 states is the basis of making people happy, which is the beginning of peace. Peace does not mean the absence of war, it means people being happy and feeling the sense of belonging.
As we all know, all along, some people in South Sudan have been discriminated in most of the states but rebels and some NGOs have never raised their hands to fight such injustices but when people are being made to feel happy they are out condemning the action of the president.
In short, it is important to sum up by stating that all South Sudanese should critically analyze the behaviour of rebels and some of the NGOs that hate the creation of new states, which is the basis of the happiness of South Sudanese.
The action of the President of South Sudan in creating new states should be applauded because it is valid and all South Sudanese should support him.
Moreover, all external powers should know that peace can only be achieved when South Sudanese are satisfied not when the rebels, IGAD, TROIKA and the USA are satisfied.
After all, majority of South Sudanese are happy with the creation of new states. The president should not change his mind.
NB// The Author is a South Sudanese Lawyer doing Bar Course in Uganda (Law Development Centre in Kampala Uganda). He can be reached via: email@example.com