BY: Juma Mabor Marial, RSS, FEB/23/2013, SSN;
In the past month, article 101 (r) of the transitional Constitution of the Republic of South Sudan 2011 has been the issue of fundamental debate on whether the decree issued by the president of the republic relieving the Lakes state governor (now former governor) Eng. Chol Tong Mayay of his duties was constitutional (lawful) or otherwise. This phenomenon has drawn mixed reactions even among the legislatures both at the national and state levels with the adversaries contradicting one another on the actual interpretation of the above mentioned provision.
This unprecedented episode has left the layman with nothing but anxiousness on what the true constitutional interpretation would be in the face of this glaring uncertainty. Some enlightened citizens have so far suggested that article 101 (r) should be taken to the constitutional court for legitimate interpretation. I am of the contrary opinion because; this can only come as an attempt of the last resort.
Why is this the case, South Sudan so far has experts in constitutional matters and their skills and knowledge can be utilized to break this deadlock. This fact notwithstanding, the office of the president where the decree relieving the former governor and appointing the military caretaker governor has a legal department and advisory board that drew the attention of the president to execute the provision of article 101 (r).
Moreover, we have the national legislature which passed these laws including the transitional constitution which granted the president such powers as declaration of state of emergency, declaration of war and relieve of elected governors among others. However, the above three institutions are halfway failing to explains the consequences of the presidential decree that relieved the former governor and installed a caretaker one.
With my knowledge of Law, the changes that affected the Lakes State government are issues that can be well address by critical constitutional analysis and objective interpretation of the concern articles of the south Sudan transitional constitution. For instance, the relieve of former governor engineer Chol Tong Mayay from his duties as Lakes state governor emanates from Article 101 ( r) of the constitution wherein under the functions of the president, he (the president) is mandated to sack any governor in the event of threat to national security and territorial integrity.
This provision is synonymous with what happened in Lakes State where in very unfortunate circumstances; the rival groups of the Dinka agar tribe (the so called Panyuonn and Amothnhom) extended their troubles to the state capital and shot indiscriminately killing amongst their target the elderly, women and children. This magnitude of insecurity justified the president’s action of sacking the governor of lakes state and he scored one hundred percent in this test. It is also the best opportunity that article 101 (r) is applicable beside that of Jonglei and Western Bhar El Ghazel in the recent past.
On the other hand, there is nowhere in the whole world let alone south Sudan than the capital city like state headquarters that can be safer to live in and therefore the case of Rumbek was catastrophic and immediate action ought to have been taken and indeed it was so done by Mayardit, Bravo…
Now that is all in the past and the question that should be asked by south Sudanese in general and lakes state citizens in particular is, what are the post Chol Tong constitutional implications and political consequences. For me, the president and other stakeholders must be reminded that the application of article 101 (r) should be supplemented by the subsequent sub section which is in article 101 (s) which state that the president shall appoint a caretaker governor to organize for elections in sixty (60) days.
This provision should not be ignored despite the much rhetoric that people thinks south Sudan will not follow the constitution by organizing elections in lakes state. such sentiments are tantamount to classifying ourselves as ignorance of the principles of constitutionalism because if indeed the elections are not organize in lakes state in two months, then the president would be indirectly nullifying his decree of relieving the former governor by implications because he cannot afford to apply the provisions of the same constitution selectively by sacking Chol under article 101 (r) and refusing to order for an election in lakes state in two (2) months under article 101 (s). This if it so happens will amount to unprecedented violation and highest degree of contravention of the constitution in the history of mankind.
In addition to these facts, the caretaker governor although appointed on a security background must learn to select his words cautiously and gives himself the task of the paradigm shift from his military orientations to a civilian and if need be a political figure. Why do I have these convictions, so far, the caretaker governor has rubs shoulders or a bit pessimistic provokes the other constitutional organs of the government in a very undeserving manner especially on his utterances against the ineffectiveness of the judiciary and judicial officers and the threat towards parliament of shutting it down if the members don’t desist from deliberating political motions.
This is a violation of the constitutional doctrine of separation of powers and the caretaker governor ought to be advice accordingly. I wouldn’t agree less with Ateny Wek on his sentiments that the main task of members of parliament is to shape the political destiny of the nation or a state for that matter and their task is to debate political issues without fear, favor or intimidation from either the governor or the president. The caretaker governor should refrain from this venture. Altogether, article 189 of the transitional constitution of the republic of south Sudan 2011 gives the mandate to declare state of emergency exclusively to the president and the caretaker governor should not imply to invoke it regardless of their private discussion with the president on which direction they want to take lakes state to.
Currently, in almost all the public rallies that the caretaker governor have held, he is seems to think that he operates in a situation of state of emergency where some institutions are declared ineffective and most of them suspended. I quoted him recently as saying that there would be no politic and questions of human rights in lakes state until 2015 when and if the next elections are held which in a nutshell, he is trying to inform the nation of south Sudan and particularly the citizens of lakes state that he has some secret information and powers to remain in power until 2015 and this is not what the constitution under article 101 (s) tells us.
This indicator rings the alarm in our ears and there must be every reason to believe that the scenario of lakes state may be the unprecedented test of the doctrine of our constitutionalism as a nation. The president must give our caretaker governor another evening phone call and tell him to limit down his speed. I think he also needs some legal advisers to give him some lieu on issues of governance.
Lakes state is reined by rampant insecurity and this is the primary reason that it has remain behind in terms of development and other levels of progress towards the achievements of the Millennium Development Goals (MDGs) and it is therefore imperatively significant that the president have decisively chosen to deal with this situation once and for all, however, as an independent state, there must be ways of skinning a cat and so is it also applicable in restoring law and order in situations such as the one in lakes state. Our institutions and constitution are the supreme pillars of our nation and we must learn to keep them alive and it is therefore the recommendation of this author that:–
1. The president must ensure that, article 101 must be applied in its holistic provisions and this mean election should be held in sixty (60) days in lakes state in order to reaffirm our commitment to the respect for the rule of law and adherence to the principles of constitutionalism.
2. The president must ensure that he has frequent phones conversations with his caretaker governor to avoid a war scenario between the executive arm of government on one hand and the judiciary with the legislature especially on the other at the state level. This will enhance safeguards to the respect for the principles of separation of powers and interdependent among the three arms of government for effective service delivery to the people of south Sudan. In addition to this facts, the caretaker governor must slow down on his utterances against the issues of human rights because we are a member of the United Nations and south Sudan achieved her independent as a result of oppression from the other country and therefore, human rights covenants are part of the treaties that south Sudan as an independent state acceded to and must be respected accordingly.
3. The president if he wishes to maintain status quo in Lakes state by Keeping the caretaker governor on until 2015 on security grounds must introduce an amendment to article 101 (s) of the transitional constitution of the republic of south Sudan 2011 in the national legislature just like he did with the article 202 of the constitution with regards to the national constitutional review commission. This is a professional way of violating the constitutions globally but it has stood the test of times because it has been given the nick named “ amendment” and so it has remain popular in countries where the governments are able to keep their interests intact.
4. The caretaker governor of lakes state must now know that before he was appointed a caretaker governor of lakes state, he was initially relieved from his active military service and put on a reserved list which resulted on his appointment as a caretaker governor and his second reserve list now is politic because he is so far removed from the first reserved list and it is upon him to play his cards closer to his chest such that he can remain relevant in his future endeavors, keep the security of lakes state, that is your national duty but also relate to civilians and politicians because you belong in this category now. Never make blunders that you are going back to where you came from; you are now on another route of life.
5. Finally, I plead with all stakeholders in every level of government including the citizens of this country to be law abiding and uphold the provision of our supreme law; the constitution because this is the only way our country will surmount all these challenging times. I equally urge the president to swiftly and promptly call for amendment on article 101 (s) of the transitional constitution of the republic of south Sudan 2011 to allows lakes state gain momentum in terms of security under the stewardship of caretaker governor General Matur Chut Dhuol. This action will help the president kills three birds instead of proverbial two with one stone i.e.
Upholding the constitution of this republic by introducing the amendments to extend Dhuol caretaker ship up to 2015 (the wording will be done by legislatures), restoring law and order in lakes state and finally, avoiding the stress and expenses of elections at this austerity ages. If Mayardit manage all these aspects, I think, he will remain the best president as we look forward to his long awaited reshuffling.
Juma Mabor Marial is a Lawyer and Advocate under training. He is reachable at firstname.lastname@example.org.