Tricky Legal Game Between Parliament And Judiciary on Kiir’s E/O#36/2015

QUOTE: “Laws prevented people from doing violent deeds that could be seen – Sophist Critias

By James Okuk, PhD, Lecture political Science, OCT/21/2015, SSN;

In its Sitting No.7/2015 in the First Session (2015) at the National Legislative Assembly’s Main Hall in Juba on Tuesday 20th October 2015, the National Legislature (in its joint NLA and CS Setting) agreed to the Presentation of Transitional Constitution, 2011 (Amendment No.2 for 2015) by Minister of Justice.

In adherence to Article 83(1) Hon. Paulino Wanawilla Unango tabled the draft amendment based on the directives of the Extraordinary Meeting of the National Council of Ministers that was chaired by President Salva Kiir Mayardit on Tuesday 13th October 2015 in Juba where the creation of 28 states got approved as per Republican Establishment Order (EO#36/2015).

According to him, the proposed amendment has been drafted in accordance with powers vested in the President of the Republic under Article 101(f), and also vested in the National Legislature under Articles 55(3)(a) and Article 199 of the Constitution.

The justification was that further decentralization of system of governance has been a popular demand and that H.E. Mr. President decided to respond, subjecting amendment of Articles 162(1), 164(1) and 165(1) which provides for the 10 currently existing states of South Sudan and their Legislative Assemblies and Governors who are supposed to be elected by their eligible residents respectively.

The Amendment is intended to abolish the 10 states and give the President of the Republic more powers to appoint new Governors and Members of the Legislative Assemblies of the new 28 States.

However, the Leader of Minority in the NLA, Hon. Onyoti Adigo Nyikwec, and in practice of his constitutional right (Article 71(b)) of the second reply to a presentation in the August House, raised a Procedural Order by referring to the National Legislature Conduct of Business Regulations (2013) under Chapter IX of Rules of Debate (Sub-Judice Rule 54) which stipulates that “Reference shall not be made to any matter on which judicial decision is pending in such a way as may in the opinion of the Speaker, prejudice the interest of any party to the action.”

As it is known, the matter has been taken to Supreme Court on 16th October 2015 by the National Alliance led by Dr. Lam Akol, seeking a stay of execution and invalidation of the EO#36/2015 because it violates the Agreement on Resolution of Conflict in South Sudan (ARCISS) that was adopted by the National Legislature on 10th September 2015 after it was signed by President Kiir in Juba on 26th August, and because it lacks fundamental legal basis as it violates the Transitional Constitution (2011) and usurps powers of the National Legislature.

Mr. Speaker Hon. Manase Magok Rundial noted the objection in accordance with Article 73 (2) which obliges him to ensure that the Conduct of Business Regulations of the House is respected and enforced.

Nonetheless, instead of staying the draft amendment he chose to refer it to the Inter-House Committee that he directed to study the matter before tabling it to the August House in one month time as required by the constitution so that it is discussed and passed by two-thirds majority if the quorum is reached.

Thus, the game of the law-making and law-execution with eagle eye from the non-violence opposition is now at the pitch with a tricky wait for the announcement of the winner. Article (93) of the Transitional Constitution stipulates that “No court or any other authority shall call into question the validity of any proceedings of the National Legislature or any of its two Houses on the basis of violation of its Conduct of Business Regulations.”

Also Articles 125 (3)(4)(5) and 126 (1) (a) defines the Supreme Court as composed of the Chief Justice, Deputy and not less than nine other Justices who should act as custodian of constitutional interpretations as they issue final and binding verdicts above Parliaments, Governments or President of South Sudan.

But it has been witnessed that the Chief Justice has already crossed the territory of the ‘Conflict of Interest’: “Your Excellency President of the Republic Salva Kiir Mayardit, I, the Chairman of the Aguok Community in Juba, Justice Chan Reec Madut on behalf of the entire Aguok Community and on my own behalf seize to take this opportunity to congratulate you for your bold decision for the creation of Gogrial State among others …Go ahead with the implementation and we are fully behind you.”

Will the Chief Justice excuse himself from the Panel of Supreme Justices so that the ruling is not prejudiced and justice aborted on the petitioned matter that is now before him at the Court Room? What a Civil Game!

The Judiciary might have desired the Parliament to endorse the EO#36/2015 first before the verdict of the Supreme Court on the National Alliance’s Petition. But the Parliament might now wait for the Judiciary to finalize the case before proceeding with the proposed draft constitutional amendment deliberations.

The donkey of El-Sheikh is now stuck at the crossroads. Perhaps, the President will take the law into his hands and go ahead with execution of his EO#36/2015 when the thirty days have elapsed by the first week of November instant, especially when names of nominated governors and MPs are now flying to his office.

But it is said in political wisdom that unchecked powers corrupts while absolute powers corrupts absolutely. Our democracy is indeed in big trouble.

An ancient Sophist lawyer called Protagoras once presented an eristic court suit argument regarding a conflict in payment of education fees by an intelligent student. They have agreed before that the Sophist will teach him wisdom and virtue in return for money. At the same time the ancient Greek law obliges honoring of contracts that has been entered by the parties.

Now before entering the court room the Sophist lawyer said: 1) if the student wins, he must pay according to the agreement; 2) If I win, the student must pay according to the law.

But the Student was saying: 1) If I lose, the agreement hasn’t been fulfilled, so I don’t have to pay; 2) but if I win, I shouldn’t have to pay according to law, which now overrides the agreement.
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Dr. James Okuk is a lecturer of politics reachable at okukjimy@gmail.com

14 Comments

  1. David Lokosang says:

    Dear Dr Okuk,

    President Kiir and those war lords surrounding him thought, they are above the public institutions and the very people who brought them to the leadership. Hence the legality of their actions are unquestionable.
    In addition to the perilous order he issued on 2nd of October 2015, he made another blunder by dissolving SPLM party structures.
    I think too much alcohol has caused considerable damage to Kiir’s mental being that is why he can not distinquish the right to wrong advice. The man need to be taken to hospital for medical attention before it is too late.
    Where did the chairman obtained his powers from, to dissolve the party structures!
    Based on SPLM Constituion 2008, the power to dissolve the structures of the party is only vested upon the National Convention. This may be a different SPLM not the SPLM that I am a member of. My question to those of James Wani Igga, general Kual Manyang Juk, general Isaac Mamur, general Piang and many whom I know, is this the SPLM that we fought for the last 21 years of liberation? If you can not tell Kiir that you don’t have constitutional powers to dissolve the party’s structure whom due you think can? Due you think Dr. John and millions of fallen comrades died for nothing or in vain? They sacrficed their lives to build a united democratic South Sudan that respect the voice of its people, freedom of speech, respect for human rights, justice and equality for all and above all, social and economic development. Is it politics of fear that silent you to speak the truth or wealth making and to hell with the overwealming majority of South Sudan who can not drink clean water, get proper medical treatment if sick, have lights on their streets and homes at night, have good roads to take their produce to the market. Think of your future and the future of your children. The wealth your are enjoing is only a short leave. Think of those of Gadafi, Sadam Husein, Idi Amin Gaafar Nimeiri, where are they now and their families.
    And for those ignorant supporters, how can our great people be govern by some one who is being treated like a school boy by the international community as the ignorant lawyer the minister for information put it.
    Time has come for all people of South Sudan to put fear aside and let us all face tyrants and march to the streets of Juba, Malakal, Wau, Aweil, Rumbek, Yirol, Gogorial, Bor, Bentiu, Renk, Torit, Yambio, Yei and all our towns to end dictatorship.

  2. Ghol Chot says:

    Mr. Okuk,

    There are some *trolls who are trolling* the SUDAN TRIBUNE, that Malakal belongs to Shilluk people, but they are the same trolls who have been asking for the division of South Sudan on the ‘clan-base federation’ ever since. But now that their wish has been given to them by this president Salva Kiir’s controversial decree. They are now out force jumping up and down that Malakal belongs to Shilluk people—–and to drive their rubbish message home. They even cite rubbish from the colonial evil British and the so-called arabs of North Sudan rubbish maps justify their evil evidences as facts!

    Good luck to them. But Malakal is an a Padang Dinka/Jieng country. The Bor Dinkas/Jaang own the greater Pi-bo country, and that is why it is called “Pi-Bor” by the Anuaks people and the Bor rightful owners. The Murles don’t own anything in our state of Jonglei, save Southern ethiopia and northern Kenya, but they are South Sudanese people like everybody else. And that is why the Bor Dinkas/Jaang gave them our state of greater Pibor administrative area [GPAA] as their state with the Anuaks, Jie, Murles and Kachipos. And to be very very careful.

    The Bor Dinkas/Jaang, the Anuaks, Mabans and Buruns are the ones that can complain bitterly about the current make up of president Salva’s decree new states. The Anuaks community of ‘Akoba’ has been taken over by the Nuers, but the Nuers must give back Akoba to its rightful owners, the Anuaks people.

    Still, the Nuers must give back the ‘Maban and Burun’ country of Langecuk to it rightful owners. Even the so-called Pagak that the psychopath called Riek Machar often used as his base to copy-cat ‘Dr. Garang and the SPLM/A’ liberation wars is not a Nuer country. It must be given back to its rightful owners.

    No one wants the evil corporate America, British and their evil juus in our country, never ever. We are going to bomb the evil corporate America to smithereens.

  3. Choromke Jas says:

    Tricky indeed. Maybe, the parliament and court can help Kiir in this business by defeating the order. There is no way the order can stand. The analysis of Dr Remember Miamingi (on this forum) has put Kiir and JCE to shame. If all fails, as recommended by Dr Miamingi, all South Sudanese citizens are called to arm to resist these destroyers of the Constitution. Ambrose Ring could not stand a debate at the University of Juba but resorting to intimidation and dismissal of Dr Luka Biong. Shame on you Ambrose. You will surely carry the can for Kiir at the time of judgment.

    • Mohamed says:

      I think the situation is so critical and problematic since mr chief justice is a member of the constitutional panel and yet he has made his opinion before the case comes before him.

  4. jok lual says:

    Dr. Luka Biong is sent by UK and USA, every one knows that game planning by those countries but South Sudan is very careful to keep away those illnesses from South Sudan. Go ahead, beny Kiir, your people behind you, defeat all enemies outside or inside.

  5. Deng Deng says:

    Dr. Okuk,
    Great piece of article.
    We have national Minister of Justice and also the National Advisor to the president on Legal Affairs. One wonders, before the president could make blunder by violating the constitution if he is properly advised or does things without legal redress.. One wonders, where are these two noble legal minds and not mentioning the CJ??/ Did they study or only read law? It seems they are NOT ASSERTIVE to advise the president… that your excellency, this is wrong and do things in right way according to the constitution!
    By the way, as a person, the president is a very nice person. Unfortunately, of recent, he is tossed left, right and centre by being misadvised to misrule this young nation. God forgive us our sins and lead us to good governance.. AMEN!

  6. martin L. says:

    Dr. Okuk,
    Yes indeed, It is not only a dilemma, it is a mockery! “Democracy” you query! Oh brother! President Kiir is taking South Sudanese for a fool!

  7. Deng Monymor says:

    Dr. Okuk,

    It is very strange here to talk about the Constitution that has been violated many times. For example, the very war we are fighting is a violation of this Constitution you are talking about. Read it again and see what it says about it.

    However, I don’t blame you and your supporters, for this has become a culture nowadays in South Sudan where people pick up what they want in a Constitution as being violated when they keep silent while 90% of it is internationally or national been violated. Sadly, it is not the problem of Constitution which is going on South Sudan, it is the increased number of sellouts we are seeing. Political contradictions don’t count nowadays for some politicians, what counts is what position US is taking as regard to South Sudan and so joining it seems to be a great material reward for some politicians.

    When certain University Departments and Civil Society of a nation are been funded outside their country, selling out becomes a lucrative business and so many who don’t see national interest as a duty jump into “Being-like internationally.” However, we have seen them and things won’t be easy for them. Things are changing now and whoever ignore it will be caught red-handed.

    Deng

    • Justice says:

      Deng Monymor,

      Tell us, when we, the marginalized in Sudan, including late Grang, were fighting the successive governments in Sudan (the first Jalaba), what constitution did we violate because of fighting for a just cause? I have witten the first jallaba because your team / kiir’s government has become worst than the first Jallaba. Remember, Jallaba is not a color. it is a behavior like what the Dinka practicing/implementing.

      You are now writing the language (funded from outside, supported by USA e.t.c.), the bickering and complaints we used to read from the Jallaba when the war was so hot.

      You are just a blind supporter of your dinka government.

  8. Gogo says:

    Dr. Okuk,
    In Africa the Laws of the nations are usually dynamic and bent at will by those in control of power with consequent eruption of chaos everywhere in the continent. The leaders always put themselves above all laws including the constitution although they vow to respect it when being sworn in and nobody dare say that this is wrong. I have been hearing of other presidents changing constitutions to suit their interest far away in some parts of the continent. Today the same or its equivalent is taking place in my country. The leaders of today are going to change the constitutions to accommodate the decree and give power to the president to appoint governors for the 28 newly created states, and tomorrow they will go back again to amend the same article to take that power away from another president. Shame, Shame and Shame. It is still a long way before we get to full political and judiciary maturity.

  9. jok lual says:

    okuk you jum up and down no way my friend go to akodok or keep quite malakal is for padang you have to repecet the order from your president

  10. Daniel says:

    Brothers Jiengs,
    I thought you were nationalists but you turn out to be narrow- minded people who support a wrong cost. In case of Malakal can you justified to the world, when was it taken from Jieng by Collo(Shilluk)?.
    Some of you who support of taking Malakal by Padang Jieng are too young who didn’t know the histroy, how your ancestries came to the land they are ocuupying in Upper Nile. This claim started in early 1970 when Abel Aleir was president of High Executive Council, but the case was ruled in favor of Collo.
    Those who championed the case were Antapas Ayi, Andrew Wew, Peter Gajang, Joshue Daw and Michael Mario who reiterated that the border of Malakal Province and Jieng Province is in middle of Sobat river and Nile.
    Unfortunately, partial leader Salva Kiir or Jieng chief previously made deadly mistake by giving Collo land in Piji to Jieng in Jonglei state without asking conscience of inhabitants.
    Please asked Jieng President, who crossed him on Sobat River in 1983 when he joined the SPLM Movement? If it is truely Malakal is Jieng inhabitant, what caused Jieng president to marry Collo lady? Where did you found that woman?Which area did his wife originated from? Can he give you the name of village of his wife in Jieng language?.
    Your shallow minded and intentional ambition, you again support the same mistake committed by your Jieng president of instituted Jieng state in Collo land in eastern side of Nile.
    I want to assure you that this illusion ambition will be impossible to be attain by Jieng, and tiny Jieng community in Upper Nile will loss everything leave a lone the claim land and even the one given to your ancestries will be taken back by owner of the land.
    I am not for war but your claim will make your uncle Collo to deal with you harshly, and you will blame yourselves in near future.
    Look your community in Malakal begin to change everything into Jieng, let me give two good examples, they change Malakal Teaching Hospital to Bielat Hospital and Moluki Health centre to Thon Way health centre.
    Now,they are killing them on houses in Malakal. What is backward and unsocilize attitude prectice by children of my sisters against their uncles. They are celebrating unfounded and unconstitutional decree. Are you real wise people and sounding minded people? Are you objective and just people who look at issues cretical without favoritism?

  11. Alier Gai says:

    Dr. Okuk,
    The demand for federalism is fulfilled. I was at the gate with many others blocking the entrants to get in, for it was and it is too early, then. But they made unbearable noises that any further divisions of the states would land political opportunists in the Mars, and the system of governance will be a remedy to such ongoing man-made crisis with no more pains. Wrongly, it was the voice of the lost goat in wilderness who never had the courage and the ability to be reared by a good shepherd at home to listen carefully. Their clear wish has been heard and given to them in the same passion of their wilderness. They are given what they were wrongfully wishing to have. We, these people who are carrying out now had these voices of the sent angel earlier to tell Noah to build the Ark before the destructive flood wiped away everything on face of the earth, but no body was listening to us. People have been dancing with their well-designed beautiful ribs of Adam while ignoring the immediate forewarning signs of danger. Noah and his listeners are finally taking refugee in their small size-built ark, and life goes well on in the boat. And anyone carrying out at this point is just fighting for his/her life, without any further ado from the confusion of their guilt pleasures. We are like the people of Israel who were confusing Moses if Mono was not dropped on the end, when God rested his arms from dropping it during the week. They turned to their idols at their volitions to show worshiping disapproval to God. That is exactly what we are doing to Kiir at this point. I was not for immediate creation of many states, but many of you have been yarning for it. So what now? Bad and good are in the package.

  12. jok lual says:

    to mr Daniel Dinka born by chulluk woman Dinka woman? your rwong brother
    and malakal belong to chuluk you also rwong your in west nile nile not in east nile now go to kodok no way in malakal

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