Why Presidential Order Establishing 28 States should be Nullified

By Dr. James Okuk, PhD, JUBA, OCT/04/2015, SSN;

On Friday 2nd October 2015 in Juba and quoting as usual Article 101 of Transitional Constitution of South Sudan (2011), President Salva Kiir Mayardit issued “Establishment Order Number 36/2015 for the Creation of 28 States in the Decentralized Governance System in the Republic of South Sudan.”

The Order is supposed to come into force in 30 working days (i.e., by 4th November 2015) from the date of signature and in accordance with the attached delimitation map to the Order (8 States for Equatoria and 10 states for Upper Nile and Bahnr el Ghazal each).

The President shall appoint gender-balanced (i.e., 25% women) governors and legislative assembly members for these new states with powers of making and promulgating states’ constitutions as well as electing speakers and their deputies respectively.

The President shall also establish States Border Dispute Resolution Committee (SBDRC) to attend to the arising or connected conflicts between the new states.

The core purpose of the Order is implementation of Articles 36 (1) of the Transitional Constitution, which requires promotion of decentralization and devolution of power to the people through the appropriate levels government where they can best manage and direct their affairs.

The President can also issue further operational Orders for the new states if deemed necessary. The Order will create new constituencies for the incumbent members of the previous States Legislative Assemblies on whom additional members shall be appointed by the President but with a total not exceeding 21 MPs for each new state.

The Order shall remain effective unless amended by another Presidential Order.

Now, looking critically at the scanned Text of the Presidential Order, it is my observation that it bears no signature and seal of Gen. Salva Kiir Mayardi; neither is it printed on an official headed paper though it was read over the SSTV.

The Article 166(6) (a) and (b) in the Order was a wrong quote because it is supposed to be about local government and not states’ government. The correct article would have been Article 162(1) and (3), which defines the territory of South Sudan as composed of 10 states governed on the basis of decentralization and with prohibition of altering the name of any state or its capital town except by a resolution of the Council of States approved by a simple majority of all members on the recommendation of the relevant State Assembly.

Further, the quoted Article 101 (b), (f), (k) and (u) was also flawed in relation to the substance of the Order because it has no supplementary read of another legal prescription apart from the Transitional Constitution, and also because it only empowers the President of the Republic to supervise executive institutions and initiate constitutional amendment through the National Legislature mechanisms (see Article 86(5).

The President is not allowed to temper with matters affecting the Bill of Rights, the Decentralized System of Government or alteration of Administrative Boundaries of the States.

Further more, some of the names of the counties that were mentioned in the Order have no legal existence (for example, there is no Kodok or Malakal Counties; what is there is called Fashoda and Makal Counties). Some states have only one county and you wonder why call them states.

Above all, the Order is a violation of the IGAD-Plus’ mediated Agreement on Resolution of Conflict in South Sudan, which was signed by President Kiir himself in Juba on 26th August 2015 and ratified later by the National Legislature so that it becomes supreme over the Transitional Constitution (2011 and amendments).

The Establishment Order may be suspected as rejuvenation of ‘Kokora’ but on tribal enclaves where the lucky ones get their GPAA as David Yayau got it, though now baptized (except Abyei Area) in the names of 28 states.

By choosing unconstitutionality, President Kiir could be seen as equivalent to Chief rebel Dr. Riek who is not bound by any constitution or law in his decisions.

To save the nation from constitutional and peace setbacks and also from more negative economic implications and social strife, I urge President Kiir to nullify the Order with clarification that it is a position of his ruling SPLM-J intended for influencing the direction of the permanent constitutional making process later.

Prof. John Young had previously warned of attempts to adopt the complicated and complex situation of Ethiopian-like ethnic federalism, because it is dangerous for survival of South Sudan at this particular moment.
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Dr. James Okuk is a lecturer of politics. He can be reached at okukjimy@hotmail.com.

39 Comments

  1. AGUMUT says:

    It doesn’t matter because 28 States are like 10 States of two days ago,i had said it before somewhere else and i will repeat it again that 28 states can be change into one future Capital city and 28 provinces in the name of development. There are many countries in this world with only provinces and Capital,but well develops.Our people will win if there is any referendum to change those States into provinces. South Sudan was one region and later divided into three regions and later 10 States and now 28 States and those should be 28 provinces if there is no enough resources for 28 States.

    • johnjerry says:

      Provinces or states does not matter,but the system of governance is what matters. States based on Tribes is a recipe for further conflicts. Even the Federalism that people talk about as a cure for tribalism,clannism,nepotism and corruption may not be the last solution .One good example is the state of Amadi created with the Capital, Nimule. Why name state after a tribe?.The Only good Federal system that will be good for Federal Republic of South Sudan should be like that of Canada or Britain where the Government in the center has lesser power and the states or provinces have more power.And the government in the center works with all the states in partnership. Decrees are rare and may not exist as each state or province takes care of its own affairs without the intervention of the government in the center.A guiding constitution is the solution and that is what the nation should first do as a road map to stability,sustainable development,peace and tranquility.. Consult with the people and most of all the parliament which represents all the constituencies in the Country.Good governance is a team work guided by the Law which is second to non

      • Eastern says:

        Johnjerry,

        Stop being sleepy. Have you seen the list of Kiirs recently formed States?

        Amadi state is in Western Equatoria encompassing Mundri West and East counties amongst others, not in Nimule.

        The indeginous inhabitants of Nimule are Ma’di but not Amadi as you wrongly inferred. Read when you are sober!

        • johnjerry says:

          I was referring to Mundri and NOT Nimule sorry for the inconvenient. Do not forget the Madi of Nimule and Moro in Amadi speak similar language and it is believed that in history the Madi came from Amadi in western Equatoria.

    • Justice says:

      Dear Agumut,

      Troika says any restructuring of S Sudan states should happen under transitional govt. https://radiotamazuj.org/en/article/troika-say-any-restructuring-s-sudan-states-should-happen-under-transitional-govt

      European Union says President Kiir’s latest decree violates peace deal. https://radiotamazuj.org/en/article/european-union-says-president-kiirs-latest-decree-violates-peace-deal

    • Joana Adams says:

      This is a distortion of historical fact. Before the colonial era, South Sudanese were isolated tribal entities. The colonialists after studying the peculiarities of Southern tribes grouped the dominion into 3 provinces of Bahar el Ghazal, Upper Nile and Equatoria administered by 3 British governors. This administrative arrangement remained in place till Beshir divided each region into 3 each. After the CPA an additional state in Warrap was created to give advantage to the so- call majority tribe.
      This political drama is nothing but an attempt by the genocidal president to attract attention after he lost the match in Addis and felt insulted as a “school boy”. He is also terrified of the possibility of sharing the presidency with designate 1 st Vice President his perceived arch enemy. I hope his newly found confidence to betray the people of South Sudan and defy the internal community will not be another short lived drama.

      No amount of drama will restore Kiir’s shattered image. Kiir himself is so conscious of it that he opted not to join other world leaders for the historic 70th session UNGA in New York, to the extend that he chose to hide under a video link to avoid negative reactions. Tyrants can terrorise their citizens but none has so far survived the wrath of the international community. Good luck to Kiir, Makuei and the rest of the Jieng Elders for ripping the country apart. Lets hope they will be happy here after.

      Joana

      • Bol says:

        Joana,
        If the British started this arrangement of three province, then how was the territory govern buy Muhammad Ali Pasha? Isn’t this (distortion of historical facts)?

  2. Guet Athina Guet says:

    Mr. Okuk,

    I had followed your writings since your college day and you have not changed a bit, I am not surprise, you have been critical of the president every opportunity you get. So what wrong with 28 states. You’re fixated on the constitution alright, but you think President Kiir have no clue of what he’s doing. In humble opinion, he’s doing a great job as president. I guess if the president need advise from you he would have call you. You mentioning IGAD in south Sudanese affairs is a mistake, we’re a country and not someone step child. And I objected to you putting the president name in the same sentence with the butcher.
    My computer had rebooted itself in the middle of my sentence… so the half baked paragraph above need to be remove … thank you.
    May god bless president Kiir and keep him safe, and may god bless south Sudan.

  3. Francis Mangok Angeir says:

    Dr. James Okuk,

    It is too late, millions of South Sudanese are celebrating and there is nothing you can to do about anymore. Join your people and begin to develop you state ( province). Do not waste your time posting and talking against something is already done. Good luck for your state you have been talking about federalism and this what you have been supporting. Many of you have been needing system of government in which the individual states of country have control over their own affair.

    Besides, you suppose to congratulated Mr. President for listening to you people who need state. Dr. Reik came up with 21 states, today President Kiir implemented, but added 8 states. What is wrong with that? I think you there is something wrong with South Sudanese PhD holders. God bless

    • Francis Mangok,

      This is not about my PhD Degree but violation of the constitution and peace agreement by Gen. Salva Kiir Mayardit, the President of the Republic of South Sudan, who had taken an oath of office to protect the constitution and who has pledged commitment to implement the peace agreement that he signed in Juba on 26th August 2015 even if it is not a Bible or Quran.

      If it were Dr. Riek Machar or any other rebels who did that I wouldn’t have wasted my time because they are not Presidents yet and are still outlawed by the fact of rebellion.

      But this is President Kiir! When he violates the Constitution and Peace Agreement then what has remained of the country? Too bad my fellow citizens, unless you are not South Sudanese true nationalists.

      • Francis Mangok Angeir says:

        Dr. James Okuk,

        I think this idea of having more states came before the peace agreement. You remember many months ago when Dr. Riek came up with 21 states and many South Sudanese used to support that including you. Today what is wrong with that. Is it because Gen. Salva Kiir added 7 states or what? Dr. James, let us be trustworthy and stop confusing ourselves.

        Besides, I am a true nationalist and that is why I am saying this implementation of 28 states is a true crucial litmus test and I appreciate that because millions of South Sudanese are happy for it.

        In addition, I would like you South Sudanese PhD holders to stop confusing South Sudanese people and begin to show the perspective way of success. Many of you have been contributing many negative ideas that would never benefiting the country. How long many of you will keep doing that? I pray for you to change and God bless.

        • Justice says:

          Francis Mangok Angeir,
          You seem to have gone to the same school that Ateny Wek, Kiir’s press secretary, went to. That is the school of “PhD phobia”, PhD Phobia = people who have a disease/sickness that makes them scared of PhD holders.
          I remember, your brother in sickness, Ateny Wek, said PhD Holders are not wanted in South Sudan.
          I don’t know if Ateny Wek is aware that without another, fellow PhD holder, called John Garang De Mabior, if he would have been in that office, the president’s office. We would have been defeated miserably, militarily and in the talks.
          Note: I am not a PhD holder.

        • Eastern says:

          Angeir,

          Save yourself from further embarrassment! Yes Dr Riek’s group did propose 21 states during the peace negotiation but the idea was rejected by Kiir so the peace agreement proceeded and was eventually signed the parties with Kiir appending his signature in Juba albeit begrudgingly! The signed agreement by the parties is based on 10 states as far as power sharing is concerned.

          If you want to talk about the 21 states proposed by Dr Riek or the now arbitrarily decreed 28 by Kiir, let that come up for discussions during the coming transitional government where all the stakeholders to the signed accord will participate and have a say. Formation of 28 states is not an easy thing for Kiir to do alone with the participation of some shadowy folks.

          Dr. Okuk has clearly dissected the facts, further backed by the SPLM-FPD. Kiir cannot alway be right. It’s wrong for minister Makuei to tel international diplomats that President Kiir can do ‘whatever’ he wants to do with South Sudan, wrong! He doesn’t have the freedom to toy with with the lives of millions now suffering at home and abroad.

          You will soon learn why the Troik countries are right and Kiir is dead wrong!

  4. Francis Mangok Angeir says:

    President Kiir added 7 states I mean.

  5. Dear Dr.James Solomon Okuk:

    What you have said is in place! President Kirr,should not be blame on problems in his administration! I blame only people those who are telling him always wrong advises from what can be done and from what cannot be done!They themselves,those who are advising him in government affairs in the country,they are narrow minded folks altogether!
    They themselves they have known that the country in the South Sudan,has so many matters that they have not yet been completed so far!Take example,the South Sudan,has not yet complete broken in Sudan with the Sudan government in central in Khartoum until now!Again,there is Meaningless war in the South Sudan between SPLM/SPLA ruling party themselves since in 2013 until today!There are no services in the country.People are living idle! Just I mention few!

    Creation States:To create states,it cannot be done by a decree of the president.Creating many states in the country,it has to be done politically by people in the whole country in order to create a better new political constitution first for a new states which start from national,state,and local level I want President Kirr,to writeoff this creation of 28-states matter.It is going be MEANINGLESS and he will look EMBRASS!!!!!!!! He should first bring war down in the country through negotiation with opposition in the bush!Thank you! Take care!

    HONESTY KILLING ANGER!!!!

    Jackson County,MO.USA

  6. Jwothab says:

    President Kiir should know that acting unilateral for his presidential Order Establishing 28 States is only undermining the peace process but a declaration of war against Chollo people. President Kiir deliberately decided to take the Chollo ancestral and give to his Dinka people and this is clear political marginalization of Chollo people. President Kiir and his Dinka alike should know Chollo will continue to fight and defend their ancestral land because it is their natural right.

  7. Mark Twain says:

    I believe that our Heavenly Father invented man because he was disappointed in the monkey. However, in discarding the monkey and substituting man, our Father in Heaven did the monkey an undeserved injustice.
    Mark Twain’s Autobiography

  8. Angui Deng says:

    No problem your can join your Uncles in IO if you not happy Dr Okuk

  9. Raankan says:

    South Sudanese should accept this created 28 States base by govern federal system because tired of Dinka and Nuer War which gave hatred and tribalism .

  10. Eastern says:

    Kirr is fast moving to backtrack on an agreement he signed! The proposal of creating more states was floated by SPLA-io during the peace negotiations, but Kiir’s delegation didn’t agree to it and it was shelved, now, out of the woods, Kiir pulls out a list of 28 ethnic enclaves in the guise of new States in South Sudan aimed at ‘taking services to the people’! Kiir is now walking the path of Idi Amin Dada of Uganda.

    Kiir should have been advised by his ‘legal’ adviser(s), after he appended his signature, he’s become bound to the collective nature of decision making embodied in the text of the agreement.

    If there is need to split the country further and introduce federal system of governance, that decision will be taken collectively during the transitional government which have other parties as stakeholders.

    Actions that continue to prolong the suffering of our people both within and outside the country must be avoided by both parties to the agreement. Kiir will be held responsible for any further tragedies that may befall the country!

  11. Jerry H. Piego says:

    Agumut,
    Please please please, would you kindly do us (the readers) and yourself a favor by stop commenting in any website. I advise you to only read the articles without commenting.
    You are always the first to express your absolute ignorance in the name of providing a comment (on this website or on Nyamile.com). My brother Agumut, what you are doing is so shameful.
    Dr. James Okuk has provided enough evidence that Kiir (assisted by his bad advisers) has violated the constitution of the Republic of South Sudan, that he has a copy in his office, and you are seriously writing nonsense. Actuall what you need is not more evidence from the constitution to prove that Kiir’s decree is constitutionally wrong, but a brain and a fair thinking to understand that Kiir did wrong. Please tell the readers, if someone else, other than a jieng South Sudanese fellow, e.g. Professor Peter Adwok Nyaba or Dr. Riek Macher, was the one who issued that unconstitutional decree, would you have supported his decree? God bless you

  12. Malouda says:

    Okuk, you are PHD holder you suppose not to be like illiterate. I think your problem is that you are not happy about this decision. you are a PHD holder, there is no any new counties been created in this decision only areas are mentioned and it is only a mistake that you can ignored as you are a PHD. Creation of decentralization was a demand of south Sudanese citizens since, but they do not patience and that is why it came as a surprise.

  13. Choromke says:

    Juba is now very confused. If my memory serves me well, there is a clause in the agreement which says that if there is any conflict between the Transitional Constitution and the agreement, the agreement prevails. The agreement is based on the 10 states, and so, whatever Kiir quotes from the Transitional Constitution is null and void as it will conflict with the agreement. Johny Walker must be very rare in Juba now as the top guys are in state of permanent drunkenness. We told you the end was nigh! Poor guys.

  14. loguguru says:

    Dr. Okuk,
    you have said it all but who is there to listen to your kind of voice. Few months ago a south Sudanese elder proposed a federal system of governance in the republic of south Sudan based on a 21 states but was rejected by a group of people that are now celebrating the creation of the 28 tribal aligned states of the president. The same group of people celebrating were the same ones demonstrating against the IGAD plus compromised peace agreement. Can any one guess as to what is the intention of the decree. Does federalism mean creation of more states or presence of power in the hands of states, Again does presence of power in the hands of states mean division of the states. Sorry, some people were really very bitter about federalism because they don’t know exactly what it means. Dr. Okuk don’t talk about the constitution because it is not working otherwise this country could not have been in chaos if it was managed by people that respect laws that they create themselves,

  15. Hoiloom says:

    Dr. Okuk,

    What goes around comes around. Few months ago you wrote a critical article against Dr. Machar and also abusive to Nuer nation, that was before Olony switched sides. The Dinka project of miss ruling South Sudan and annexing non Dinka land should not come as a surprise to you. You just need to refer to Elhag Paul’s great work since before the current crises. To deter the Dinka threat by all means the rest of 63 ethnic groups must work together, otherwise Atar(Pigi) and Makal will be gone forever. As for creation of 28 states after signing the agreement is a direct violation itself. Kiir cannot just wake up from a terrible hangover and issue a decree calling for federal states having refused to incorporate it during the negotiations. South Sudan is indeed dealing with a mad president with his notorious JCE.

    Hoiloom

  16. Raankan says:

    Juba is not confused these are politice wether there is agreement or not ,it is like the time of CPA with Khartoum Government where Abyei,Nuba Mountain and Blue Nile protocol are not implemented as it was,

  17. mindra says:

    hey mr kiir,how did you play out your setting for the additional18 states.why did u dissolve the states government which is democratically elected by the people.
    i know this creation is of thoughts and it would never hold.where is the money at this hard time.
    shame on kirr for belittling southsudanese at large.things are not done in that way pliz.behave like civilized and learned person

    mindra from loa local,pageri madi corridor EE SS

  18. alex says:

    I find the same people who were fighting for federalism now crying
    some time back I argued we need to research whether federal system can be a good model for us and which federalism is best for us many of you were saying there is no need. Many of you even argued blindly without considering the issue of resources and the economic impact. Now why complain. People are now celebrating now which people to be consulted. You the so call educated you maybe finding your selves fighting the people. You people preached tribalism alot in this net so the 28 federal states fit well with your message. You ignored nationhood. You put tribe before the nation so let us now face the music. I argued our people should be consulted first but you the rebel supporters were claiming the majority of S . Sudanese want federalism. So are now trying to fight the majority. Reversing this order may cost the opposition dearly in elections. There is no way out even me now I am trying to defend my state from someone who want to take it away from me
    I think it is the right time now for the so call educated
    to move away from tribal politics to Interlectursl politics. All this mess is caused by those who put their employment perspective before the interest of our nation.

    • Gogo says:

      Alex,
      You think the creation of the many states is federalism that was in your mind. And if the governors are going to be brought in by a presidential decree and removed at will by decrees will you still call it federalism. sorry you are lost. If the idea is that each tribe should be in their own states because some ethnic groups do not like to mix up as a result of the polarization, why generalized things. And if it is Kokora as you have said it by going to defend your own state then why not go back to the real kokora of 1983. The Equatorians are fed up of the troublesome people of the other two greater states.This cosmetic decree intended to remove Dinkas from areas of nuers dominance is not a positive step in a nation building.

  19. Hoiloom says:

    Alex

    No one is against federalism but it’s not part of the peace agreement as your cowboy president refused to accept it during negotiations, why now a make a u turn to create 28 states without consultation? Another issue you the cowboys and JCE need to consider, taking some Shilluk and Nuer land will not silent guns in Greater Upper Nile. Go a head with the implementation and some Dinka sections will head to Baher el Gazal for good.

    Hoiloom

  20. Moorgueec says:

    People are becoming more unreasonable here, when bashir created 10 states, was there a referendum ? When Salva accepted Riek Machar as per peace agreement as first Vice president, was it not against the transitional constitution? We must accept 28 states.

    • Eastern says:

      Moorgueec (what a name!),

      Omar Al Bashir did not create the 10 states in Southern Sudan then after the signing of the CPA with SPLA.

      Please use the correct political analogy!

  21. jok lual says:

    what is rwong when gen kiir create 28 states riek is a one begain to create 21 states

    • Eastern says:

      Creation of states should not be an issue of competition between Kiir and Riek. You Kiirs supporters are looking at governance issue through tribal lenses!

      Riek’s proposal of 21 states was premised on a colonial 21 districts, what’s is Kiirs 28 states premised on? Documents on the creation of the 21 districts can be obtained from historical archives in the UK. Documents for Kiirs 28 states are only in the hands of Kiirs loyalists and tribal dinka Chiefs.

      It’s again Dinkas jubillating because one of them has ‘made an achievement’ in the country!

      • Bol says:

        Eastern,
        Really? Didn’t Dinka already made History ? Some started the struggle….They end up captives and shamefully hang to death like common criminals! They led the second stage….It didn’t go anywhere……Call it luck, bad luck or Leadership skills shortages …It doesn’t matter as long as we saw the result …..No offence, but that is HISTORY.

  22. Abiko! says:

    Eastern,

    Before,in 1983,the South Sudan Regional Government,was wedged Into Three Regions and they were Equatoria Region, Bahr El Ghazal Region,and Upper Nile Region.Their governors were different.President of His Executive Council,was gone with President Joseph James Tombra.This was done before a mutiny being caused in Bor province in Jonglei by Kerbino Kwanyin Bol and Commnader Willian Nyuon Bany in Ayod Garrisons.

    Within three regions in the South Sudan,they were still subjected to answer to President Jafar Mohammed Nimeri in central government in north in Khartoum period.The ten state came from President Omer El Beshir before CPA was signed in 2005.He himself,by himself,he created other sates in the north as well.The newly one created by President Kirr,it is as good as bad!There going be bloods will take time in over time! I KNEW VERY WELL!!!!!!!! I do not want go tell in my life at all in front of GOD!!!!!!!! Thank you. Back to you to the forum to the audience!

    Jackson County,Kansas City,MO.USA

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