The Contentious Issue of 28 States Shouldn’t Impede the Work of NCAC

By Mabor Maker Dhelbeny, Lawyer, JUBA, JAN/19/2016, SSN;

As the parties embark on to the implementation of the “Compromise Peace Agreement,” known as Agreement on the Resolution of Conflict in South Sudan –(ARCISS), by constituting the National Constitutional Amendment Committee (NCAC) which has started earlier last year in order to incorporate this August Agreement on the Resolution of Conflict in South Sudan into the Transitional Constitution 2011 (Amended 2015).

Hence, the Constitutional Committee was deliberating over the constitutional draft amendment for some weeks before its came to stalemate, despite the fact that the time-frame given by the Joint Monitoring and Evaluation Mechanisms (JMEC) is very limited.

What was that stalemate and the contentious issue? It was the 28 States decreed by His Excellency the President on the 2nd of October, through the presidential ORDER #36/2015 which occurred after the IGAD-Plus Peace Agreement was concluded between the Government and the rebels on the 26th August, 2015.

Significantly, the creation of 28 States followed by the subsequent appointment of their Governors caused both ordinary citizens and the laymen to celebrate from the whole month of last year until today.

Meanwhile, the South Sudanese Lawyers and other International Experts were thinking of legal consequences that may follow the said order.

This is because the August Agreement was signed by both parties on the basis of 10 States and in conformity with Article 162 (1) of TCSS, 2011 before it was amended by the NLA.

It therefore becomes a point where members of SPLM–IO in the NCAC raised their eyebrows by accusing the GRSS of violating the Agreement – it’s a stalemate and contentious issue which needs to be resolved.

In its third meeting, JMEC resolved that the parties to the ARCISS should solve the problem of 28 States through – “Outside the box”. Some journalists got stunned, thinking that the agreement is reopened for renegotiation by the parties.

It seems in my view, some of these journalists or reporters do not know the above phrase. What does this phrase mean? This phrase – “Outside the box”, means thinking differently from a new perspective about the contentious issue.

However, thinking outside the box or thinking beyond the box – needs creative reasoning or thinking that acknowledges the 28 States or rejects the undertaken paradigm to emerge with new idea of revoking the Order #36/2015.

This scenario can therefore be achieved by the parties by building consensus and reaching ‘compromise’ through dialogue.

Furthermore, the process of thinking outside the box could be construed in a pejorative sense but crucial for parsing and executing the decisions reached by the parties.

Apparently, thinking outside the box – means the new thought. “When we use this cliché – we can situate ourselves back in the box but in a somewhat better position,” according to Ira Steven Behr.

For this reason, the parties to ARCISS can situate themselves back in the box but in a better position. This demonstrates that the SPLM–IO, FDs and the GRSS are required to look further by trying to think the things in the agreement and beyond so that the ordinary citizens can enjoy the fruits of “Compromise Peace Agreement.’

The word – “compromise,” however, needs to be understood by our leaders who are signatories to the agreement. It’s a mechanism used by the mediators – IGAD, TROIKA, UN and AU to bring our conflict to an end.

It’s a method of give and take in a good spirit during the negotiation which makes both parties neither the losers nor the winners.

According to Sumbye Kapena (2013:56) “…the leader takes the time to listen to the arguments of both parties. The leader then points out both the faults and the good points that each side has. He or she then concludes that since each side has its equal share of the blame, the best thing to do is to tolerate each other’s faults.

The leader emphasizes that exhibiting some faults is a characteristic of human nature, and therefore, tolerance is the best stance. In other words, the leader maintains that it is the spirit of give and take (compromise) that ensures continuity of relationships.”

Since members of the two Houses of National Legislature have invoked Article 199 of TCRSS, 2011 (amended 2015), as it was initiated by the President in accordance with provision under Article 101 (f) of the said Constitution, the issue of 28 States will not be treated as a legal issue but rather it has become a “political one”. Then what should be the way forward.

The way forward should be that – the input of experts is mostly needed to guide in technical areas, such as devolution of powers or power-sharing, finance and executive.

So JMEC’s Chairman must be cautious about the process of draft constitutional amendment by the NCAC to avoid possible boycotting. Because the study discloses that any constitution making all over the world is wrought with confusion, mistrust, conflict, interests of certain class and selfishness among others.

In a political gimmick, the SPLM-IO leadership remained guilty conscientious after the creation of 21 States which immediately vanished due to lack of constitutional mandate.

Meanwhile, in response to the above, the Head of State with constitutional powers created 28 States that have garnered extensive support from the civil population all over the country. And as such both 21 and the former 10 States were thrown in the dustbin.

But any attempt to backtrack the government’s decision would be detrimental to the agreement. If these contentious issues continue to develop, then the parties to ARCISS may lack strong political will – perhaps due to the fact that the ruling elites would want to maintain the status quo in power by controlling the constitutional making process.

Thus any contentious issue or stalemate, regardless of 28 states in the draft constitutional making process must be resolved based on consensus. The impetus of this consensus however, requires the spirit of constitutionalism – i.e. it must emanate from the will of the people of South Sudan. Therefore, the contentious issue of 28 states should not be used as a leveraged by the oppositions in order to impede the work of National Constitutional Amendment Committee.

The Writer is an Advocate & Legal Consultant at Juba. Email him at mabor.lawyer@gmail.com

6 Comments

  1. alex says:

    Dear Mabor the people we are facing is the opposition
    relay so much on internet advisors who have no legal experience nor political experience.
    Theirs is only the believe that, they want to change the government by any means. The suffering of our people is not their primary concern. They want things to be done like what they want. These group of people does not acknowledge the ideas and feelings of other people. They do not believe in compromise . It was when John Kerry was frank to Riack and told him to go to Juba that they accepted the peace. This group even rejected before to sign the security minutes. Now the question to be asked is, is there any member of Splm in opp that has been killed in Juba? Secondly if a leader is for people, he is ready to die for his people. I have not seen a leader who want to hide himself and send his people to die. Garang went to Khartoum straight away when the peace was sign because he knows he is their servant

  2. Itikwili says:

    Mabor,

    so many of these sort of Nilein University law graduates! Writing shit: “Meanwhile, in response to the above, the Head of State with constitutional powers created 28 States that have garnered extensive support from the civil population all over the country. And as such both 21 and the former 10 States were thrown in the dustbin.” how can you be an advocate and legal consultant in that matter with all this over generalization “Significantly, the creation of 28 States followed by the subsequent appointment of their Governors caused both ordinary citizens and the laymen to celebrate from the whole month of last year until today”. Some people took up arms over these ethnic state! pathetic and they have overflooded the Ministry of Justice!

  3. Gatdarwich says:

    Total vulgarity analysis.

    No real 28 states, but pseudo ones, that will and shall soon be forgotten by the psychopathetical supporters.

    The imminent shutdown of oil pipelines by Khartoum, and the unwillingness of the TROIKA nations to financially support killer NyanKiir’s and the lunatics-fanatics Jenges council of evils’s kleptocracy-genocidal regime, will enables these psychopaths see the reality period

  4. Jake says:

    This is clearly an illiterate attempt by a fake,job seeking lawyer, to legitimize Kiir’s unilateral decree to form 28 states. Has this man, ( I can’t call him a lawyer) read the compromised peace agreement? I don’t think so because if he did then he would have read this part.
    Chapter VIII: The supremacy of the peace agreement and procedures for amendment.
    Since he is a fake lawyer. Simplicity for him: THE PEACE AGREEMENT IS SUPERIOR TO ANY LEGISLATION THAT IS AGAINST IT. So the order for the creation of 28 states is against the peace agreement, since the peace agreement is based on 10 states.
    So in this matter Kiir’s illegal decree, is automatically defeated by the agreement. Which his illiterate …. signed.

    Download the agreement and read it. Had you done that you wouldn’t have written this article and expose yourself as a fraudulent lawyer/ incompetent.

  5. Gatdarwich says:

    Well said, Jake!
    Let this pseudo Jenge lawyer reads the August peace agreement provisions period

  6. Peace maker says:

    Kiir’s statement on the CPA was very clear, that it was neither a Koran or a Bible. So it can be abrogated as he wants. The problem facing us is the lack of teeth, from IGAD, STROIKA, UN, AU etc.to enforce the agreement as it is. You have seen all kinds of ceasefire being violated before the ink could dry on paper. Therefore, a quick formation of a transitional Government of national unity, is doomed to fail, if the usual attitude of feet dragging continues. The 28 states were formed to impede the implementation of the agreement. Secondly, the demilitarization of Juba and other war affected cities, has hit a rocky wall. And thirdly, the NCAC cannot move forward, if the obstacles leading to a smooth implementation of the CPA, can’t be removed. It’s a waste of time and money on the funding organizations, that played a major role since day one, of the conflict, Dec. 15,2013.

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