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.
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