BY: Dr. Sindani Sebit, NAIROBI, JUN/27/2014, SSN;
Part 3 of these series focuses basically on the Federal structures under the Federal President (Prime Minister). These structures include the cabinet, defense and Federal law enforcement agencies. From the graphic illustration below, you will notice that the Parliament and the Judiciary is not included here because these two constitutional institutions are independent of the President (Prime Minister).
The basic idea is to enable the people of South Sudan critically understand the separation of powers at Federal level and devolution of powers to the state. It is apparent that the organized forces such as the police, wild life, internal security services, fire brigade or any form of organized forces are not part of the Federal government and thus do not constitute a part of the federal law enforcement but are rather under the state governments.
In this article the plan to reorganize the defense will not be discussed suffice to say the number of the army with be reduced to not more that 80,000 (infantry, air force and navy) while the restructuring will take into account qualification of the soldiers, age, sex and equality and equity within the federal Republic of South Sudan.
This restructuring will be done by independent experts including foreigners who have experience in army restructuring. Therefore the areas that will be discussed here are the functions of the executive including the President (Prime Minister), the cabinet in general and the roles of the federal law enforcement services.
The individual ministerial portfolios will also not be discussed because the intention of the article is not to specify which ministries will be established and how many but the number should be between 18 to 24 ministries.
The purpose of this article is to enable everyone understand the functions of the president and the institution under the presidency and feed back with constructive suggestions.
Structures under the Federal President/Prime Minister
The executive authority of the Federal Government of South Sudan is derived from the people. This must be exercised in accordance to the constitution based on the principle of service to the people and to foster their wellbeing.
The Executive shall consist of the President (Prime minister), deputy President (Prime minister) and the cabinet. The composition of the executive should reflect the regional and ethnic diversity of the people of South Sudan. This means equality and equity must be the principle on which the president should appoint the cabinet. This balance is crucial in order to create unity and avoid marginalization of some ethnic groups.
Certainly not all the 64 tribes of South Sudan will be in the cabinet but attempts must be made to ensure that there is no domination by one or two tribes or regions. On the other hand equity must be observed so that disadvantaged groups such as women, the disable and other marginalized groups cannot be ignored when the government is being formed.
President (Prime Minister)
Authority of the President (Prime Minister)
The President (Prime Minster) shall be the head of State and government and commander in chief for the defense forces. These include the infantry, air force, the navy and the federal law enforcement services that include federal intelligence service (FIS), Immigration and Custom Service (ICS), Drug Enforcement and Illegal Trafficking service (DEIT) and Special Security Service (SSS).
The President (Prime Minister) shall also be the chairman of the federal security council which should comprise of the President (Prime Minister), his/her deputy, the heads of the defense forces, the head of the federal intelligence service, the federal foreign minister, secretary to the cabinet and the governor of the state that hosts the federal capital. The President (Prime Minister) will exercise authority of the federal government with assistance of the deputy President (Prime minister) and the cabinet.
Role of the President (Prime minister)
The role of the President (Prime Minister) is to respect, uphold and guard the federal constitution. He/she must exercise powers vested on him/her by the constitution. He/she shall not rule by decrees but only through the articles of the constitution. The President (Prime Minister) though will enjoy the immunity of office, shall not be above the law. He/she shall promote and enhance the unity of the Federal republic of South Sudan, ensures that diversity of the people and ethnic communities are respected. He/she must protect human rights and fundamental freedoms and rule of law as enshrined in the constitution. It must be emphasized here that respect for South Sudan diversity within united South Sudan will work to enhance mutual understanding and trust among the various tribes of South Sudan and will enrich the various South Sudan cultural beliefs and practices. This will further strengthen unity and harmony among the citizenry of South Sudan.
Functions of the President (Prime minister)
Constitutionally the Federal President (Prime Minster) shall perform the following functions:
• Address the opening of parliament and specific sittings of the parliament
• Report annually to the nation by submitting to parliament the extent of implementation of government program and progress achieved.
• Nominate and with approval of the federal parliament appoint or dismiss:
High commissioners, ambassadors, diplomatic and consular representatives
• Chair cabinet, direct and coordinate the functions of the federal ministers and government departments
• Declare state of emergency and with approval of parliament declare war. The President (Prime Minster) under no circumstance should declare war without approval of the federal Assembly.
• Promote and enhance the unity of the nation, ensure that diversity of the people and ethnic communities are respected, human rights and fundamental freedoms and rules of law are protected
• President (Prime minister) has no constitutional powers to remove from office any elected members of government at all levels of administration. These include
The purpose here is to deny the president (Prime Minister) any powers that he/she can use to remove peoples’ elected representatives and to respect the devolution of powers to the states. This will enable the peoples’ representatives and heads of Federal states to work without undue fear of being unconstitutionally removed from office by the President (Prime Minister).
Qualification of the President
In case where the country opts for federal President, in order for anybody to be elected as Federal President he/she must be:
• Citizen of South Sudan
• At least must have been a governor of a federal state or a senator before standing for the election of president.
• At least 35 years of age
• Graduate from any recognized university
Qualification of the Prime Minister
If the country opts for Prime Minister as the head of government like in UK, Indian and many federal states, the candidate for this post should be:
• Citizen of South Sudan
• Leader of the party with highest number of MPs in Parliament or highest number of MPs of collusion parties in parliament
• Has been elected as a member of parliament by his party or collusion
• At least 35 years of age
• Graduate from any recognized university
Election of the President
The Federal President shall be elected directly by the people by universal suffrage in an election organized by the Federal Electoral Commission as stipulated in the constitution while for Prime Minister; he/she shall be elected by parliament from the party or collusion of parties with the highest number of MPs.
Vacancy in the President (Prime Minster) office
When the president dies or becomes incapacitated, his/her deputy will take over until new elections are called in accordance with the constitutional provisions pertaining to elections. However, in case of Prime Minister; if he/she dies or becomes incapacitated while in office, his/her party or collusion can nominate another member of parliament from his/her party or collusion to be elected acting Prime Minister until new elections are conducted according to election calendar as stipulated in the constitution. In case the party or the collusion of the Prime Minister looses majority or confidence vote, new national election shall be called as stipulated in the constitution.
Deputy President (Prime Minister)
He must be the principal assistant. He/she will perform the functions assigned by the President (Prime minister) and acts as President (Prime minister) during the absence of the President (Prime Minister).
The federal cabinet shall consist of the President (Prime Minister), his/her deputy, the Attorney General and not less than 18 and not more than 24 ministers. The Federal President (Prime Minister) will nominate all proposed cabinet ministers, present them for vetting and approval by the Federal Parliament before they appointed ministers. Likewise, cabinet ministers shall only be dismissed by the President (Prime Minister) after due approval by the Federal Parliament. This is to avoid nepotism, incompetence and unqualified people being appointed as ministers. It will also weed out people who might have been corrupt or tribalistic in their previous duties. Cabinet ministers should be selected from qualified civil servants and not members of parliament so that parliament has no conflict of interest in approving the cabinet.
Conversely the Federal Parliament may propose a motion requiring the President (Prime minister) to dismiss a cabinet member only on the following grounds:
• Gross violation of the provision of the constitution or any other law
• Serious reasons for believing that the said member has committed a crime under federal or international law.
In such situations, the President (Prime Minister) is required to oblige. However, clear procedures for such request by parliament, shall be stipulated in the constitution.
Although cabinet ministers are accountable to the President (Prime minister), they must attend to any summons by the committee of the parliament so as to enlighten the parliament about their activities and also to be accountable for their actions. Performance contract do usually improve performance and accountability and therefore all cabinet ministers shall be required to sign performance contract at beginning of their term of office. These contracts shall be reviewed at end of every year to determine if the concern minister has fulfilled his/her obligations. Failure to do so will trigger parliamentary process to remove the minister.
The attorney General is a member of cabinet. He is not a part of the Judiciary. Attorney is the principal legal adviser to the Federal government. He/she represents the Federal Government in court or any other legal or criminal proceedings. He/she can be a friend of court in any proceedings where the Federal government is not a party. His/her role is to promote, protect and uphold the rule of law and defend the public interest. He can also be assigned any function by the President (Prime Minister).
The Attorney General shall be nominated by the President (Prime Minister) and with approval of parliament appointed to office. The process of approval by parliament should be done transparently and rigorously to avoid tribalism, nepotism and favouritism. He/she should have qualification equivalent to Federal Chief Justice and should serve for 5 years but can be reappointed if necessary.
Director of persecution
In order to have independent and impartial persecution system, an independent office of persecutor shall be created. This office shall have right to tenure of office for 5 years and renewable for the same period. The occupant of the office shall be nominated by the President who will seek for approval of parliament before his/her appointment. The qualification of the persecutor should be at the level of Judge of the Federal Court of Appeal. The persecutor shall have powers to direct the commissioner of police to investigate any information or allegation of criminal conduct and will exercise powers of persecution. In so doing he/she may institute and undertake criminal proceedings against any person before any court; take over and continue any criminal proceedings started in any court and can discontinue, at any stage before judgment is delivered, any criminal proceedings.
The persecutor shall not require the consent of any person or authority for commencement of criminal proceedings. He/she shall not be under the direction of any person or authority but should have regard for public interest, the interest of administration of justice and avoid abuse of the legal process.
The South Sudan Federal Law Enforcement Agency
The Federally operated agencies are essential to enforce various types of laws in the South Sudan that cannot be devolved to the states. These services usually cut across the states and in most cases cannot be managed at state level. These are services that cannot be assigned to organized forces under the state. The services that will be implemented by the federal Law Enforcement Agencies include:
1. Protecting, preventing, countering, and investigating terrorism;
2. Illicit drug trafficking;
3. Transnational and multi-jurisdictional crime;
4. Organized people smuggling, human trafficking and slavery;
5. Serious fraud against the Nation;
6. High-tech crime involving information technology and communications;
7. Peacekeeping and capacity building; and
8. Money laundering;
The Federal Law Enforcement Agency is divided into four (4) federal law enforcement organs namely:
Federal Intelligence Service (FIS)
The Federal Intelligence Service is a highly secretive federal law enforcement organ whose mission is to collect and evaluate foreign intelligence in an effort to protect the security of Federal Republic of South Sudan. It may also be involved in covert activities in other countries at the discretion of the President (Prime Minister) of the Federal Republic of South Sudan. It will be responsible in combating international terrorism. Therefore it will frequently work with other countries to accomplish this effort.
Immigration and Customs Services (ICS)
ICS shall be charged with enforcing laws involving border control, customs, trade and immigration. It constitutes the Federal police force that enforces illegal immigration activities throughout the Federal Republic of South Sudan and investigates import and export illegal goods and materials.
Drug Enforcement and Illegal Trafficking (DEIT)
DEIT shall be charged with the responsibility of investigating and enforcing laws related to illegal trafficking of firearms and explosives as well as the theft and the unlawful sale and distribution of alcohol and tobacco. It is also responsible for enforcing laws relating to controlled substances like marijuana, cocaine and heroin. It will work with other state and county organized forces as well as with foreign governments to reduce the trafficking of illegal drugs.
Special Security Service (SSS)
The Special Service Service’s primary function is to protect the President (Prime Minister) of the Federal Republic of South Sudan and his/her immediate family as well as the Vice-President and other high ranking government officials who might face security threats. It will also be tasked with protecting Federal Courts and Judges. It will deal squarely with counterfeiting of currency, money laundering, internet (Cyber) security and threat, fraud, and credit card fraud. In addition, it will serve as covert law enforcement on Federal Republic of South Sudan aircrafts and other high value targets in the country.
In conclusion, compared to the current system of governance in South Sudan, the federal system proposed here curtails the dictatorial powers of the President, affirms the independence of the Parliament and Judiciary and boasted the oversight role of Parliament over the executive. The President will have no powers to appoint his cronies or tribal bigots to office without approval from Parliament. This system will indeed counter the rampant corruption, tribalism, nepotism and favouritism in South Sudan. It will also frustrate the efforts of any President (Prime Minister) from becoming a dictator.