By Mabor Maker Dhelbeny, Lawyer, Juba, MAY/28/2016, SSN;
Legislature is one of the three arms of National Government in accordance with Article 51 (a) of the Transitional Constitution of South Sudan (TCOSS) 2011. In its composition and establishment, Article 54 provides that “there shall be established a National Legislature composed of the following: (a) the National Legislative Assembly; and (b) the Council of States”.
Since the Republic of South Sudan has adopted the system of bicameral from the Sudan, therefore, this Writer would like to focus more on one house – i.e. an Upper House, by exploring the National Legislative Assembly (NLA), its expansion and mandate in regard to the Agreement on the Resolution of Crises in South Sudan, 2015.
The supreme law of the land however requires that members of parliament shall be elected through universal adult suffrage in free and fair elections, conducted by secret ballot; and the number of MPs (Members of Parliament) including the composition of NLA shall also be determined by the domestic electoral laws.
After the interim period of the autonomous government, all members of Southern Sudan Legislative Assembly (SSLA), ninety-six (96) MPs in the National Assembly of the Sudan by virtue of their membership in that Assembly and additional number of MPs appointed by the President, have transformed themselves to be the members of NLA during the transitional period (Art. 56 (1) & (2) of TCOSS, 2011 (amended 2015).
Upon signing the Agreement on the Resolution of the Conflict in South Sudan (ARCISS) in August, 2015, the NLA is expected to be expanded not later than three (3) months of pre-transitional period for the duration of thirty (30) months of Transitional Government of National Unity (TGoNU).
Under the provisions of Article 11 sub-article 1 of the ARCISS, the expanded NLA shall be known as the Transitional National Legislative Assembly (TNLA) comprising of four hundred (400) MPs, including the prior three hundred and thirty-two (332) members and an additional sixty-eight (68) representatives appointed according to the following criteria: (a) South Sudan Armed Opposition: fifty (50) members; (b) Former Detainees: one (1) member; and (c) Other Political Parties: seventeen (17) members.
Contradictorially, the August Agreement seems to have violated some provisions of the Constitution on one hand and recognized on the other. For instance, the above-mentioned provision contravenes Article 56 (2) (c) of TCOSS, 2011 (amended 2015) which stipulates that “…during the transitional period the National Assembly shall consist of such additional number of members appointed by the President not exceeding sixty-six (66)”.
This appointment has already been made by the President, based on the supremacy of the ARCISS under chapter VII. This means that the appointment of additional sixty-eight (68) representatives to the National Legislature by the President of the Republic is a violation of the Constitution. This is because the required number has exceeded sixty-six additional members by two (2) as stipulated in the Transitional Constitution.
In a comparative study, the Comprehensive Peace Agreement (CPA), 2005, had allocated the seats of National Assembly of the then Sudan as such: (a) The National Congress Party (NCP) – 52% (b) The Sudan People’s Liberation Movement (SPLM) – 28% (c) Other political parties from the North – 24% (d) Other political parties from the South – 6%.
Furthermore, the Southern Sudan Legislative Assembly (SSLA) thereafter the Independence of South Sudan in 2011, has reconstituted itself as the Transitional National Legislative Assembly – an inclusive constituent legislature, composed of one hundred and seventy (170) members appointed by the President of Government of Southern Sudan after wide consultation with relevant political forces and on the basis of the following percentages:
(a) 70% representing the SPLM;
(b) 15% representing the NCP; and
(c) 15% representing other Southern Sudan Political forces (Art. 94 (2) of ICOSS, 2005).
Though the Agreement does not forge the allocation of seats as the CPA and Interim Constitution of Southern Sudan (ICOSS) provided, but the fact that it focuses on balancing the legislative power cannot be denied, thus, by appointing more MPs from the opposition and other political parties through different criteria.
In other words, the increased number of August House has an important implication, especially in service delivery and political dispensation during the transitional period of unity government. It’s simply put as an accommodation of antagonists! Perhaps, this prompted the expansion of National Legislature by appointing more representatives to the existing number of MPs and therefore, the unseated members from the NLA and Council of States following the December 15, 2013 crisis, shall be reinstated to their seats and shall continue to serve for the duration of the term of both Houses during the transitional period (Art. 11.2 of ARCISS, 2015).
If we were to follow, respect and uphold laws, therefore MPs who have lost their memberships for one reason or the other as per the provision of Article 63 (1) of the Constitution, deserved no rights to be reinstated to their seats either in the NLA or in the Council of States. But the implementation of the Agreement allows them to take this golden opportunity of reinstatement as advantage.
Such MPs, who made a U-turn, have been the leading exponents of the NLA expansion during the negotiations of compromise peace agreement. The expansion of NLA is indeed articulated in the Agreement albeit, in a way of reform and by reinstating the unseated MPs. The question that poses itself is that: “Is there any criterion provided by the ARCISS for selecting the Speaker of TNLA?”
In accordance with Agreement, the Speaker of TNLA will be selected from Equatoria, thereafter the expansion is completed. But the Agreement falls short of criteria or procedures for selecting the Speaker, in terms of partisans (Art.11.4 of ARCISS). This seems to have been the cause of delay in selecting the speaker and as such some MPs of Equatoria from the SPLM/A-IO or any other political parties may be in a position to nominate their candidate for speakership.
Since the National Legislature is composed of two houses, – i.e. the National Legislative Assembly and Council of States, hitherto the Agreement recognizes their mandates and functions as it was provided for in the Constitution (Art. 11.5 of ARCISS). The mandates that most MPs fulfilled today are often distinguished into three (3) functions below-mentioned:
Firstly, the function of “Legislator” reflects that MPs are elected (or appointed in rare cases) to the National Legislature as – “Legislators” in order to legislate, deliberate on bills and pass legislations, whether original or changes existing laws. This sometimes, captured the attention of many electorates that such roles would be considered as the direct responsibility of the MPs.
But legally speaking, “…the National Legislature shall be competent to (a) consider and pass amendments to this Constitution; (b) enact legislation on all assigned to it by this Constitution; (c) discuss statements by the President and take decision as may be necessary; (d) authorize annual allocation of resources and revenue in accordance with Article 87 of this Constitution” (Art. 55 (3) of TCOSS, 2011 (amended 2015).
Secondly, the function of “Representative” refers to the fact that MPs are also elected or appointed to represent their electorates or group of people and/or political parties.
In the legal sense, “…the National Legislature represents the will of the people of South Sudan and shall foster unity and nationhood, …oversee the Executive and promote the decentralized system of government” (Art. 55 (1) of TCOSS, 2011(amended 2015).
With this recent development, the appointment of additional number of MPs by the President articulates that these members are not coming to represent the will of the people of South Sudan but instead, they are coming to represent interests of their political parties in the TNLA. In essence, all MPs should act as representatives of their people in order to foster unity, nationhood and reconciliation amongst the people of South Sudan.
The representation of people must be the basic source of authority for a body that makes the law under which South Sudanese society operates. In a country where social fabrics are broken as the repercussions of war, MPs are expected to represent differences of their communities which may be deeply rooted either in ethnicity, geography, or political identity by bringing them into the policy-making arena. Such function(s) can be achieved through cooperation between executive and legislatures.
This has significantly been confirmed when John Johnson (2005) argues that: “for legislators to be able to play their role of representation, oversight, and legislation … there needs to be a certain degree of cooperation between the branches in policy making (each side must be willing to bargain and compromise in order to get some policy benefits), the legislature must have some capacity to monitor the executive and the executive needs to be willing to comply with legislative enactments”.
Exceeding such degree of cooperation between the two organs, its ends result may be worst. For instance, if the legislatures keep on blindly endorsing decisions made by the executive branch, then they (legislatures) will be called “rubber stamp”, a term which connotes non-democratic. This is common mostly in African parliaments dominated by one party, just like the SPLM (before its disintegration) in South Sudan National Legislature.
Therefore, MPs exercising this function of representation must be aware of the needs of the constituents and respond to those needs immediately. As this is the year of peace as well as famine, thus MPs who will turn their back to the people they represent in some constituencies affected by the shortage of foods, will not secure their votes in the next elections unless they do something tangible now! Or else they remain status quo by reneging the Agreement and the Constitution.
Because the National Legislature is a branch of government closest to the people, thus MPs more than any other government officials at the national level are expected to deliver constituent services by accessing government funds for projects – i.e. CDF (Constituency Development Funds) to benefit the constituency by providing foods to the community this time. This is because parliamentarians are accountable to their constituents.
This Writer assumes that some CDF meant for building schools, clinics or primary healthcare centers in certain constituencies have been diverted to other projects of self-enrichment by some MPs. It happens when MPs took recess in order to visit their constituencies and listen to their people’s problems and share government policies with them but instead some prefer to travel abroad. This demonstrates that most MPs feel reluctant to take their duty of moral obligations to represent their people effectively and efficiently.
Thirdly, the function of “scrutinizer” or “overseer” entails that all MPs are expected to exercise over the workings of Executive, implementation of laws which will be passed by TNLA and support or criticize the proposals placed before the National Legislature by the government.
As Scrutinizers, therefore, MPs are expected to oversee the performance of the National Government institutions; approves plans, programmes and policies of the TGoNU; summon Ministers to answer questions of members of the Assembly on matters related to their ministries; vet and approve appointments as required by this Constitution or the Law and cast vote of no confidence against Minister (Art. 57 of TCOSS, 2011 (amended 2015).
In conclusion, the Agreement seems to have created a trajectory of the National Legislature for reforms – from a one party state to a multi-party democratic transitional process. Besides accommodation, the rationale for expanding TNLA is to represent the will of the people; initiate reconciliation and foster unity among South Sudanese communities; oversight the executive performances of TGoNU; and to pass legislations, whether new laws or amended existing laws particularly in areas related to the implementation of ARCISS. Moreover, the conduct of its business entails that the TNLA is expected to support the Agreement and enact legislation that enables and assists the transitional processes and reform stipulated in the Agreement (Art. 11.6 of the ARCISS, 2015).
The Writer is an Advocate & Legal Consultant in Juba, the Republic of South Sudan. He can be reached through comment(s) via his email address: firstname.lastname@example.org