Pres. Kiir’s creation of 28 states is consistent with provisions of the Transitional Constitution of South Sudan 2011

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: juoldaniel@yahoo.com

10 Comments

  1. Elhag Paul says:

    Dear Daniel Nhomngek
    Here is another expert opinion from Dr Remember Miamingi who is a lecturer of Law at Pretoria University. What is your take on his opinion and especially the recommendations?

    https://xa.yimg.com/kq/groups/6678478/270326793/name/Sharing%20unbaked%20cake%20the%20Order%20%20creating%2028%20states%20in%20

  2. Elijah Samuel says:

    “The above argument brings me to one thing that I hate most. I hate someone who reads and applies the law subjectively.”

    LMAO !!! Be my guess, Classical case of they have eyes but cant see their own heads!

    • Bol says:

      Elijah,
      It looks like you hate everybody not just those who reads and apply law subjectively or objectively. Daniel presented his case( Constitutionality of any act done in lieu of express prohibition)… Keep your emotions to yourself and present you counter legal argument. Not capable of that? General Kenyi is in desperate need for brave men and women.

  3. BILL KUCH says:

    Daniel Juol Nhomngek,
    You are absolutely right all in all. This country should be ran by its elected leaders and not self-appointed with help of foreigners. I don’t see anything wrong with ethnicity since God created us with distinction of being different. If anyone don’t know this, then you must know; rebellions already created ethnic lines among South Sudanese and we must acknowledge that. Dr. Riek renegades for the second time and his messages to Nuer communities has been always an issue between Jaang and Naath. (Dinka+Nuer). It would have been wise if the message of change base of wrong governing instead of encouraging tribalism. That was Dr. Riek in the year 1991 and here again he is, and hopefully there will be no Dr. Riek in future.

  4. Eastern says:

    Daniel,

    I can bet you are reading the law of the land the way the minister Michael Makuei Lueth does!

    This lacuna in our law was purposely designed to create situations as the country is in now. The lacuna shrouding Article 101 will be the undoing of South Sudan as far as democratic governance in the country.

    Fellow South Sudanese, we have a man in charge of the state sitting on the rooftop of the National Legislative Assembly with the brown leather covered TCSS 2011 firmly under his military boots!

    Dr Lam Akol has let a loose coalition of political parties to have the high court in the land stay the excution of the Executive Order 36/2015 AD while other concerns are addressed (implementation of just signed peace agreement, formation of TGNU, etc).

    Aware of the lacuna in the law, the Chief Justice Chan Reec can now be seen gleefully filing the petition knowing well that it won’t make any headway – he’s actually gone public by congratulated the president on the move to split the country into 28 states. Soon we shall see justices and advocates disqualifying themselves from hearing the petition or those intend on pushing it on, they would be intimidated or……..

    I wish you well my young legal friend!

  5. Joana Adams says:

    Daniel,
    Your legal arguments are tautological and do not exonerate you or tyrant Kiir. Man is not made for the law, but law is made by man to serve his interest. Otherwise all this fiasco is nothing but tyranny of the law, in which case it becomes obligatory for all men and women of good conscience to overthrow such a law by any means possible including the use of force. One wonders why the legislative assembly in Jubà and all states assemblies have not yet made a move to impeach Kiir! We welcome the move by the Alliance of opposition parties under brave Dr. Lam Akol to challenge Kiir in court as a matter of principle. It doesn’t matter that the luny president of the Supreme Court has already declared that he is not politically neutral and could not help himself but to come to the defence of his relative Kiir.
    This underlies the fact that in a multi ethnic society such as South Sudan, the heads of the executive, the legislature and the judiciary must not come from the same tribe. Kiir’s constant rule by decree is intended to impose the will of one tribe against the will of 63 tribes who seek fairness and justice. The hidden agenda of the Jieng Council and their supporters is becoming gradually exposed. It is now up to all the other ethnicities to come up openly to resist and oppose Jieng hegemony if their is no political or legal channels for redress. The time has started ticking. Stay tune!

    Joana

  6. jok lual says:

    bravo general kiir go head your people behind you let them cry in ethiopia and kenya .
    dont go back from your order long live south sudan spla oyeeee monyjang thondit

  7. Hoiloom says:

    Can’t even finish reading this garbage

  8. Hoiloom says:

    Those who celebrate and dance now for creation of unconstitutional 18 states will be the last to cry when things fall apart. The Dinka of Greater Upper Nile will have everything to lose when hell break loose. Kiir will never succeed in land grabbing that does not belong to his tribe…

  9. alex says:

    Dear brother Daniel you made it. I wish we have more lawyers like you who can explicitly clarify things backed by evidences like what you have done. Some people want the law really to suit them, which is wrong and brings injustices. Those people who reject the law are the real enemies of peace. The professionals must move away from the culture of favours and the law must be allowed is course. Threats and intermediations are dangerous elements to build genuine democracy. I respect the decisions of the opposition alliance to go to court but they must respect the outcome of the law and the same applies to the government. We have recurring problems in S. Sudan because everyone even the lay men claim to be professional in laws governing our country. Some even mix the Western constitution to our constitution without knowing that even the constitution in Great Britain will not be the same like the one in Germany, Italy, America and Norway.
    This people makes the world to laugh at us the way they reason. It can be seen from their reasoning that, they are trying to bend the law to suit their plans. The best example was during the expiry of the term of the government, our government to conduct elections they say no elections should wait and when the extended its life they argued no. These group of people want to put the country to chaos and that is their objectives. They do not care about the looming devastation which would have befallen on our people. What they are after is only taking the government, positions and their stomach but not the wellbeing of people of S. Sudan. We S. Sudanese people should guard ourselves from such politicians.
    Thanks brother Daniel those who love peace should really read your argument again and again.

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