Sharing unbaked cake: The constitutionality of the order creating 18 additional states in South Sudan

Dr. Remember Miamingi, Lecture of law, Pretoria University, South Africa, (Article previously published somewhere, OCT/02/2015;

On 2 October 2015, the President of the Republic of South Sudan issued Establishment Order Number 36/2015. Through this order, the President decreed the creation of 18 new states out of the existing 10 states. This brings the total number of states in South Sudan to 28 for an estimate population of 8 to 10 million people.

A quick comparison might throw more light on these figures: China, with over 1 billion people, has 22 states; India, with a population of over 1 billion, has 28 states; and Brazil, with a population of over 191 million people, has 26 states.

China has a land mass of 9,571,300 sq. km; India 3,156,596 sq. km; and Brazil 8,547,404 sq. km. South Sudan has a land mass of only 647,095 square kilometers.

This order has received mixed reactions in South Sudan – commendation and condemnation. Those who praise the Order do that on the ground that creating more states will engender greater participation of people in government, reduce dominance by the central government, minimize marginalization of minorities, and checkmate ethic hegemony by major ethnic groups in South Sudan.

Those who oppose the Order, do so mainly on the ground of procedural irregularities, disrespect of the constitution, poor and suspicious timing of the decision, capacity deficits of the state structures in South Sudan, and the fear that creating states along ethnic lines might encourage ethnic chauvinism and exclusivity in a country wherein ethnic cleavages already pose significant challenges to nation building.

Thus, according to the critiques, this creation of more states only satisfies parochial and patrimonial needs of those in power.

Even though it is worthwhile to discuss the reasons for and against the Order as outlined above, I will, in this opinion piece, limit myself only to the constitutionality of this Order.

Therefore, my preoccupation is whether by issuing the said Order the President acted in violation of the Transitional Constitution of South Sudan (TCSS) and, if so, whether such a violation amounted to gross violation of the TCSS for which the President should be impeached.

An auxiliary issue of the relationship between the Order and the Compromise Peace Agreement on the Resolution of the Conflict in South Sudan that was signed by the Government of South Sudan, the Armed Opposition and the SPLM Leaders (Former Detainees) in Addis Ababa and Juba on 17 and 26 August 2015 is something I will discuss in another piece.

1. Introduction
The Transitional Constitution of South Sudan (TCSS) organises the country, politically, on the basis of two main principles: Unity in diversity, and democratic and decentralisation system of governance.

Government is enjoined in article 36(2) of the TCSS to put national harmony and unity as a primary consideration in policy making.

All levels of Government must promote the principles of decentralisation and devolution of power through policy and practice according to article 36 (1) of the TCSS.

To advance these two principles, article 162 of the TCSS divides South Sudan into 10 multi-ethnic and decentralized states.

The TCSS does not have specific provision(s) dealing with state creation. It is not clear whether the existing 10 states could be merged into few states or broken down into many other states.

The TCSS is silent on the specific process and or criteria for creating new states. However, article 59 (a) grants the Council of States (a Second Chamber of the Parliament) the power to, specifically, initiate legislation on decentralization and other issues of interest to the States.

In addition, article 59 (g) gives the Council of States power to approve changes in State names, capital cities and boundaries.

A clear understanding of the scope and nature of the powers of the Council of States with respect to state creation is pivotal to an effort to assess the constitutionality of the Order by the President purporting to create new States.

Article 59 gives two types of powers to the Council of States with respect to decentralisation of powers in South Sudan: An originating mandate and a subsidiary power of approval.

The Council of States is mandated to exercise specific power to initiate legislation that affects the current system of decentralisation or the interests of existing states.

The power of approval insinuates that there could be another body that is conferred with additional powers that could affect the boundaries of existing states, for example.

My feeling is that organs of Government with the powers to initiate amendments to the TCSS are implied here.

In the absence of specific constitutional provisions dealing with the creation of states under the TCSS, cumulative reading of the TCSS suggests that state creation in South Sudan can only be undertaken through two ways:
1.— Through a legislation or through a constitutional amendment. If it is to be done through legislation, then that should be done through this original mandate of the Council of States. If it is to be undertaken through amendment, then it is a concurrent mandate between the Executive and the National Legislature. In this case, the Executive or the President could exercise its powers to initiate amendments to article 162 (1). The amendment procedures must comply with the provisions of article 199 of the TCSS read together with article 59 (a) (g). Hence, a process of state creation that is not undertaken through these two ways is undertaken outside the purview of the TCSS and is, thus, unconstitutional.

2.— The constitutionality of the Establishment Order Number 36/2015 for the Creation of 28 States:
According to a copy of the Order circulating in the media, the Order drives its authority from the 2011 TCSS, as amended in 2015. The Order cites articles 36(1), 166(6) (a) (b), 101(b) (f) (k) and (u) as providing constitutional authority for the President’s action. Article 36(1) provides for the principles of decentralisation and devolution of powers as political objective of State policy.
Article 166(6) (a) (b) provides for the following objectives of a local government: self-governance and bringing the government closer to people.
Article 101(b) provides for the power of the President to supervise constitutional and executive institutions. Article 101 (f) provides for the power of the President to initiate constitutional amendments and ascent to and sign into law bills.
Article 101 (k) provides for the power to establish independent institutions and commissions. Article 101 (u) provides that the President may perform other functions as may be prescribed by the law.

With the exception of article 101(f), the rest of the provisions of the TCSS cited in this Order do not purport to confer on the President the power to create states or alter the boundaries of existing states.

Article 36 is a guiding principle when undertaking lawful and or constitutional acts and not an authorising provision.

Articles 166 provides for the objectives of existing local governments and nothing more.

Article 101 (b) provides for the President’s oversight roles over existing entities.

Article 101 (k) does not refer to states but institutions and commissions anticipated under articles 142 (f), and article 101(u) is only relevant if the act is provided for by a law.

The only authorising provision that could ground the President’s Order in the TCSS is article 101(f). The President has the constitutional power to initiative an amendment to the TCSS.

The amendment route would be that the President will introduce a proposal to the National Legislative Assembly one month in advance of deliberation by the House. That proposal would have asked for the amendment of article 162 (1), in this case.

This article provides that South Sudan shall be composed of 10 states. Then each House of the National Legislature would debate the proposal and, if passed by two-third majority of each House, then the President can sign the amendment into law.

So the answer to the question whether the Order is constitutional or not depends on whether the Order is proposing an amendment to the TCSS or it is a self-standing and self-executing Order.

Order 1 Paragraph 2 of the Order provides that this Order shall enter into force 30 days after the signature by the President.

Order 10 paragraph 1 provides that this Order shall not be amended save by another Order by the President.

Cumulatively, therefore, the legal effect of Order 1 and 10 of the Order establishing 28 States is that it purports to be a self-standing and self-executing Order.

Therefore, this Order, for all purpose and intent, cannot be said to be an amendment to the TCSS.

There are two immediate effects of this conclusion:
—– First that the Order is unconstitutional and, therefore, null and void to the extent of its inconsistence with the provisions of the TCSS.
—– Second, article 162(1) is still in force and South Sudan is still consisted of 10 States.

3.— The implications of the finding of unconstitutionality.
In issuing an Order that the President is fully aware is in contravention to the TCSS, the President has committed a gross violation of the Constitution.

In addition, by issuing the Order as self-executing, the President is either in violation of ***article 2 of the Constitution that confers sovereignty on the people,
***article 3 that asserts the supremacy of the Constitution, article 55 (a)(b) that gives the powers of amendment and to enact legislation to the National Legislative Assembly,
***article 59(a)(g) that puts the power to create and approve changes to state structures in South Sudan on the Council of States,
***article 162(1) that provides that South Sudan is consisted of 10 states, and
***article 199 that provides for the proper amendment procedures to the TCSS.

Or the President has through the Order abrogated and suspended those aforesaid provisions of the Constitution.

The second main implication is that the President has lied under oath. The oath of the Office of the President provides, in part, that he “shall obey, preserve and defend the Constitution and abide by the law”.

By issuing an Order that violated the Constitution, the President has failed to keep true to his Oath of Office and, therefore, lied under Oath.

4. Way forward:-

1. The President has the option to resign.
2. In the event the President fails to resign, the National Legislative Assembly should commence impeachment proceeding against the President on the basis of gross violation of the Constitution and perjury.
3. In the absence of the two above options, article 4(3) of the TCSS should be activated. According to this provision “Every citizen shall have the duty to resist any person or group of persons seeking… to suspend or abrogate this Constitution.”
END

14 Comments

  1. Defender says:

    Based on what is happening at the moment with the order, the only option that seems to available is option 3, article 4 (3) of the Transitional Constitution of South Sudan 2011, as amended in 2015. Because the government is not interested in following the constitution or the agreement it signed in August and ratified in September to bring peace to our suffer people.

    The creation of the 28 states, if any one sees how it was distributed, is designed to give power to ethnic group currently in power, but not an exercise that is meant to bring town to people. If the process is this simple, why Kiir is in hurry to divide the country in the image of Dinka and Dinka alone? Any suggestion or explanation aside from this, falls flat on its face.

    It is now up to those who are aggrieved to decided what is the best option for them to take. Either push the government to put on hold the decision, or resist it with every ounce of their being. Kiir cannot take lands from other community and give it to Dinka and claim that the decision to divide the country is popular. If it is popular, it is only amongst Dinka, because they know with the advent of peace, the power that the held will be limited to operationalize the hegemony that is why Kiir and his JCE preempted the implementation of this ill fated order before their time is up.

    This order can be considered as the second coup that Kiir has instigated to get away with power and destroy the country, for the selfish interest of Dinka. If one is doubtful, just see all the people that have come to praise the order and are sticking on popularity without regard for the constitution and due process as it is stipulated for in the peace agreement. If the Kiir refuses to change his order, people must also take the law in their own hands, as Kiir did, to get what is rightfully theirs.

  2. Gogo says:

    Please send copies of this article to Michael Makuei, Ateny wek, the south Sudan legislators, the council of states and the president of south Sudan. Some of these people do not even know the contents of the constitution and they think they are acting in Konyokonyo market.

    • info@southsudannation says:

      Gogo,
      Despite your generous suggestion that we send the copies of the article to those you mentioned above, I seriously think it will be an exercise in futility.
      First, Ateng Wek is not educated enough and not even a lawyer to deserve any mention, the man is shamefully deficient in the English language and an embarrassment to be anybody’s spokesman, except Kiir obviously, because they are birds of the same feathers.
      Second, though a lawyer, Makuei is unfortunately so much intoxicated politically that he has become a native slave to Kiir. Officially he isn’t the legal advisor, but Makuei has assumed the role of legal mentor to Kiir.
      Finally, it’s Laurence Korbandi who is supposedly the official legal advisor to Kiir but with all the power and influence of the Jieng Council of Elders lawyers like Ambrose Ring Thiik and the so-called Chief Justice Cheen Reek on Kiir, their native boy, Korbandi is just a simple nonentity. Who among the Jieng Power House would even have the time to listen to a tongue-dripping slavish Moru who even doesn’t care as his own Mundri constituency and its patriotic people are being mercilessly massacred and erased by Kiir, his slave-master?
      Editor

  3. Dear Dr Miamingi,

    This is a concise and excellent piece from a law person explaining the unconstitutionality of the presidential decree 36/2015. As for the way forward, we have seen presidents who took the full responsibility of letting their countries down by resignation and in the case of the South Korean president Roh Moo-hyun, he took the extreme measure by commiting suicide. Kiir will rather let the country burn down to ashes than resigning the presidency. As you know, the national legislative assembly is illegitimate and toothless hence an impeachment is unlikely to be forthcoming. Thus our citizens are left with the duty of resisting the presidential decree and its consequences by whatever means available to them.

    • johnjerry says:

      When you compare Brazil with South Sudan it is 13 times the size of South Sudan and when you compare it to the population of South Sudan at 10,000,000 million it takes only 2 people to live in an area of 1 km square that means we still need a lot of people living in an area of 1 km square.What is needed is not actually more states,but more roads to connect the people and better services like schools, hospitals, Agriculture, Electrical power lines,affordable housing and other basic necessity of life like clean running water in homes to make south Sudan dream come true as the bread basket of the region and beyond.10 states as it stands now is fine what is needed most is service delivery based on the above mentioned statement. This will help even or equal development throughout the Country thus avoiding the influx of people to other states. Do not follow development let development come to you that was the initial slogan of the SPLM Party.Stick to your promise. What happened?.

  4. Charles says:

    The problem with Kiir is that he has surrounded himself with vultures who are there to persue their ineterest, whether they are advisors or ministers. That is why Kiir is so erratic in most of his major decisions. This current saga of 28 states comes out of pressure from the JCE to carve out for themselves land with oil, especially in greater Upper Nile and BG. As you can see some of the states are so tiny and populated only by subclans, while others have so many different tribes. As for Korbandy, he was bribed by the creation of the exclusively Moru state of Amadi.

    Now they are trying to follow the constitution by taking this order to the NLA for rubber stamping. Given the automatic SPLM majority therein and the fact that many were nominees of Kiir, the order will pass through without a coma being changed.

    The National alliances are taking the case to court, but again there we have a Chief Justice who has already approved this unconstitutional decision and sent a congratulatory message to Kiir for securing a state for his clan. That means the issue is academic and the court will be toothless. But it is good for the record.

    Already, and in spite of giving every family in Warrap a state, they are still not satisfied and are killing each other, even before the states are created. And the Chollo’s kingdom has been divided up and a chunk given to some Dinka clan. That means the Chollo will also be soon in arm to regain their century old land. We are in for a very long period of insecurity, and South Sudan will remain at the top of the ranking of fragile states, ahead of Somalia and C.A.R.

    Juba never fails to amaze.

  5. Malouda says:

    Dr. Miamingi, our TCSS was violated long time ago since after our independence 2011 not today, so the only option is to resist these factions of SPLM and elect somebody who will respect our constitution.

  6. False Millionaire says:

    johnjerry’s comments arrests my attention so greatly.
    Understood that he is for a 10 states’ RSS federalism which has allready existed even before the CPA and finally the independence.
    But there has been agitation for federalism by the equatorians from the days leading to the independence,during the short lived days of peace within the independence and throughout the periode during which RSS has been in the civil war.
    Observing such context,one couldn’t resist the temptation to say that the equatorians’ demand for federalism has had a bearing on Dr Riak’s idea of a 21 states federalism.
    The same observation also obliges the judgement to say that Kiir’s decree couldn’t have fallen from the sky alone rather than being a reaction to the same pressure from the equatorians’ demands.

    My problem is,if the likes of brother johnjerry are satisfied with the 10 states federalism,fine.
    But if that could be also the case with the majority of the equatorians,there is an urgent need to explain what kind of federalism they are looking for.
    So far as things stand,equatorians seem to like the concept of the 10 states but still asking for another federalism without accepting both Riak’s and Kiir’s propositions!!!

    .

    • Elijah Samuel says:

      False and Bancrupts,
      You are a cameleon and a member of the JCE. I am not surpised you have not condemn Kiir acting outside the constituitions, the same he told the soldiers to die for but now he has abrogated it. By the same stndadrs of the COnstituitions we are now left with the only options, for he had committed treason and we need to treat him Arriving shortly an enemy of the state and get rid of him.

      You support anything Jienga and condemn anyone who condemn Jiengs atrocities in the country. I am tempted to say you are a member of JCE or a beneficiary.

      • Both Lam says:

        Elijah Samuel, you are sick in mind because you do not have a sense of reasoning. How can you conclude anybody commending on the message to JCE, shut up from there South Sudan is not for JCE. Don’t be a useless NUER, Nuer are good people but easily going any situation without analyzing. Even JCE are not solely supporting the current government be for fool leader Dr. Devil Machar, no one will stand with you unless you rally your support to different Nuer. Nuer are good people Riek betrayed them innocently.

        • Elijah Samuel says:

          Typical Jieng, coming out to support another Jieng. Now if you Call Machar Devil, then Kiir is tripple Satan! Kiir has killed the Nuer by the thousand, he killed the Cholos, He killed Murle, He killed Didingas, He killed Blalandas, He killed the Muro and Azendes, He killed the Fajulus,, He killed the Madi…Tell me other than kicking the gluteus majors of the Jiengs, Has Machar killed anyother people Arriving shortly Kiir did? Go back to your swamps and take of cows with your False Bancrupts and take your primitive president with you.

  7. False Millionaire says:

    Elijah,
    I am sorry to make out that u didn’t understand me.
    What would it cost u if u take your time to explain what vision of federalism do u have?
    If u really read my dispatch before responding,u would have readily understood that I am neither in support of the 10 states nor Dr Riak’s 21 states or Kiir’s 28 states and reject none of them at the same time.
    It means that I am neutral but will be very happy to accept any federalism that may come to being as a result of popular consensus by the masses.

    Elijah,this forum is a place of dialogue and understanding.
    If u couldn’t express your point and make it understood by the merit of written thaughts,I am sorry to say that you are misplaced and useless to your self as to those whose name u may dare to pretend to represent.
    But if u are a healthy fellow who is physically fit,I consider that u could still be very useful as a foot soldier in any armed group in RSS.
    Internet rampage without any point to make is a waste of time and space in the forum!!!

  8. Elijah Samuel says:

    False Banckupt,
    You clearly came in support of Kiirs act of treason by abrogating the consitituions. You cliam he acted Arriving shortly a result of the Equatorians pushing for federalism. When we Euqatorians ask for federalism we do not ask Kiir, we ask the rule of law to take its course for such to be estabilished. But the primitive president thinks he is in Jieng Village giving commands for everything.

    You are a wolf who pretent to be neutral but a JCE or a relative of one! We have seen this with extreemist of your kind. The Alqeida commits attrocities just like Kiir and the so called moderate muslims comes out to pacify those enraged and scolding those who speak out againts Islam. I have yet to hear you come strong againt the traedies your Jiengs kiir has cause this country. lives have been lost and you expect me to not be angry at this primitive Jieng and the criinal JCE like yourself?

    Go run afater cows, you cow lover.

  9. False Millionaire says:

    Brother Elijah,
    Please don’t be rediculous and stop daring to be a bad boy.
    The small ground-nut english with the crude stone cutting thoughts from your part may never constitute the best lyrics to the ears of the stubborn old lady named RSS to lay down arms and accept to get concieved inorder to give birth to a most yearned for golden baby named universal federalism to a great satisfaction of the masses among whom are equatorians.
    The sincere truth is,equatoria is not a handicaped victim without any other choice than unfortunated obligation to be misrepresented by the likes of yours.
    If federalism is a heartfelt cause,the likes of yours could bark about it but only at distance deep in the cassava plantations.That’s your right ofcourse as far as freedom of expression is concerned.
    But the red carpeted floor with a golden podium where the sincere concept of federalism is lectured belongs to such highly perceptive and learned elites like Nikalongo,Elie,Defender,Charles,johnjerry,Madame Joana Adams and Madame Lola Lolita Lual Mongo,our determined courageous intellectual lady who believes in God and hates liars and dishonest people,who is said to have challanged her husaband into rubbing a burning hot carribian piper in his ass,inorder to prove to her that he didn’t lie to her when he told her that his mother weaned him with fresh white cow milk and that his father fed him with a corcodile tail meat that he had cut from a living crocodile bull in a lagoon the day he brought him to town from the village to attend the school.

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