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Tricky legal game between parliament and judiciary

By James Okuk, PhD

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

October 21, 2015 (SSNA) -- 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.

Dr. James Okuk is a lecturer of politics reachable at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Does South Sudan really strive to build democracy?

By: Bol Khan

Introduction

October 17, 2015 (SSNA) -- Does South Sudan really strive to build democracy? Who shall spearhead as a leader, the building of democracy in South Sudan? Mr. Salva Kiir Mayardit? What an illusion! Is he honest enough still to be expected as a person who may transport democracy to South Sudan? Yes, before past six decades or so, Mr. Salva Kiir Mayardit was good at least for something. At that time when you talked anything with him or if anything was told to you by Salva Kiir Mayardit he accordingly lived up to what he said to the end. I am talking of the time of the SPLM’s reclusive vision of Secular, United Sudan and New Sudan Vision “the vision of no return” as they were saying, where we would find them almost everywhere chanting “From Nimule to Halfa and from Genena to Ameskhoref, in Eastern Sudan”. Personally, but not in their quest for United, Secular New Sudan, I was among those who termed him (Kiir) “a good, trustworthy and a man of few words who could only believe in action”.

Little did we know that, a year latter or less (that was) after independence, Salva Kiir would become number-one among the liars or most in-trusted President in the world. I am not abusive, this is the fact. Globally, it is a must and necessary for any head of state and Government to possess required qualities. Or know precisely, what it takes to lead a nation like South Sudan. So I was one of his unpaid fans. I can even still remember the fierce political and national arguments we made during the six-year interim period. We would strongly ague with the likes of Gordon Buay who were by then irrationally the arch-political opponents to Salva Kiir. Someone, a year ago wrote an article asking questions like “What had happened really to Salva Kiir Mayardit”? Was it sweetness or tatse of power that could drive him into the point of becoming a famous liar, a behavior which subsequently led to uncontrollable chaos on 15 Dec 2013? Or was it something else? I concurred with that guy or author! As a matter of fact, Salva Kiir would have become the most reverted President on earth and leave behind even a good political LEGACY. However, drastically, Salva Kiir changed his mind from a habit of building a nation to that of deceiving a nation at best. The recent past, current and present events make up my defend team convincing at this point. All those fatal events could be prevented if there was a political will in our country’s leadership.

Introspect without doubt, we all became familiar to the reason as to why Salva Kiir abruptly branched or deviated from his national-bound duties. I think there is no need for categorical vindication. Salva Kiir had since then became number one—among the most liars Presidents ever in the world. He is no longer a trusted top human being in South Sudan; for he changed the true sense of this famous adage “Words speak not louder but action does”. However, nowadays, Mr. Salva Kiir Mayardit, the South Sudan’s current President doesn’t practically implement what he says. In short the entire speeches he has been delivering right after independence had not been implemented as expected. Particularly the speeches which supposedly mean to strengthen and build a democratic foundation in South Sudan.

Now let’s go direct to the topic. As titled above, this piece is a critique of Kiir’s last speech (article), “South Sudan’s strives to build democracy” under his leadership. Whether or not, the article was written by one of the Jieng Council of Elders or Juba’s government Council of Ministers’ member; that is none of our business. Our concern for today is to shed light on Salva Kiir’s illusion. His article or speech was published in Washington Times, other several international news outlets as well as the national ones. The speech was full of empty promises and it might disseminate unfounded information which should not go unchallenged. In that article Kiir illogically tried to put across: Juba is ready to implement IGAD-PLUS Compromise Peace Accord. But the reservations he made on 26th August 2015 in Juba are still in the palms of his hands. This was the first intent and condition Salva Kiir places on the table. Second, he wants the world to sees him as peace lover and under him as President, South Sudan will strive to build real democracy. The latter is as easy as passing of the camel through the tiny hole of the needle! Does Salva Kiir revere rule of law—for him to build democracy? What was Salva Kiir’s hidden agenda when he signed peace Agreement in August? These are the two basic questions this critique is trying to extract!

Does Salva Kiir revere rule of law—for him to build democracy?

To start with, Salva Kiir began his speech by January 9th 2011 and how difficult it was for South Sudanese to have a country of their own. Read what he said“Just five years ago, as dawn unfolded on January 9, 2011, millions of South Sudanese took the final steps on our seventy-year journey to independence. In our own country, we said, our government would act for us and not against us. It was our friends in the international community who helped shape those feelings into words. “Accountable, representative institutions;” “the Rule of Law;” “inalienable and equitable rights” – for many in South Sudan, the institutional vocabulary was new. But we all had known their meanings by their absence”. Thus, I, Bol Khan, would like to say now and again that Salva Kiir Mayardit is a BIG liar I have ever seen! Does he really know that the very country he leads came as a result of ordinary and millions South Sudanese’s votes in 2011? Also in his speech he said and I quote “The IGAD-PLUS Compromise Peace Agreement undermines the South Sudan’s democratic institutions” end quote. Does Salva Kiir really respect South Sudan’s democratic institutions, elected positions and the constitution? Of course not! If he does, Mr. Joseph Bakasoro, WES’s former Governor, the former Governor of Upper Nile state, Simon Kun... Etc would have not lost their elected gubernatorial positions. Because, you cannot claim to build democracy or respect democratic institutions while you’re not a best friend to rule of law! Rule of law in nature, is basically to implement what the law of the land says and the constitution as it had been stipulated. I doubt Salva Kiir’s intention, because if he reveres the rule of law he would have not trained those boys from his own regional states. The boys—Dotkubeny private forces that would then, by Presidential orders, blocked the national road to democracy as it had happened in 2013. He would have not fired either elected officials as he has been doing all along! Additionally, he should avoid separating South Sudan on ethnic basis.

The second window of an opportunity for Salva Kiir to make democracy a reality in South Sudan was that failed SPLM’s Third National Convention in 2013. It is known to many: SPLM’s National’s Convention in December 2013 came to a standstill in December 2013 due to the following:

A) A traditional practices “show of hands” against the the modern one“secret ballot”.

B) Salva Kiir wanted to nominate five (5) percent of the membership of the congresses to the National Convention...Etc.

C) Kiir’s intransigent against all democratic principles.

But he (Kiir) deliberately refused to swallow the modern democratic norms—compared to old traditional practices. He later on admitted, in Arusha-Tanzania the above modern democratic issues as grave mistakes he had made in December 2013. And as true obstacles in building democracy in South Sudan! Though he did admit his fault, after thousands innocent South Sudan people had already miserably pass on due to the SPLM-Kiir’s intransigent against democratic principles.  Now, who can hoodwink who that Salva Kiir will ever succeed in building democracy in South Sudan? I think, even the IGAD-PLUS imposed Salva Kiir on South Sudanese to lead the nation during the upcoming transitional period of thirty (30) months not because Salva Kiir will ever demonstrate democratic spirit in South Sudan. Perhaps, IGAD-PLUS wanted to end the war peacefully by re-installing Salva Kiir to the country’s top seat so that he can stop maiming Africa’s younger nation! That might be the case!

What was Salva Kiir’s hidden intention when he signed IGAD-PLUS compromise Peace Agreement?

Are you already familiar with Salva Kiir’s way of doing things? If not, you should now begin to access Benydit’s true internal cunning way of handling the issues. And what he was intended when he signed IGAD-PLUS compromise peace agreement. Mr Salva Kiir’s inner intend towards IGAD-PLUS Compromise Peace Agreement he signed on 26thAugust 2015 was totally different compared to peace lovers’perspectives. President Salva Kiir didn’t sign the Agreement with all his heart and soul; he forced himself to act against his determination. In another words, he was just bluffing—deceiving the nation, the region and the world!  His was but a naked tactic of “let’s buy time”! Take this simple truth from me my dear reader if you don’t have it already! Look at what he says “I recently signed an internationally brokered peace accord to end an insurrection against my government that has plagued us for almost half of our young nation’s life. I did not accede to this deal because it is perfect—indeed, the plan undermines the sovereignty and democratic institutions of our nation in key, unfortunate ways. Despite our misgivings, last month I committed our people, their nation and their government to the Compromise Peace Agreement. But let my reasons be clear: I did not sign the accord because of threats or intimidationI signed because leadership is the art of the possible and choosing between difficult, imperfect options. I signed because a government must lead”.

In our own analysis based on the above sentences, Salva Kiir was deceiving the nation, the region and global community when he signed that agreement. He wanted to free the knot or a looming loop which was about to be tied around his neck. In August if you can still remember, the world media houses were so much dominated by this sad news that “South Sudan’s President, Salva Kiir, refuses to sign IGAD-PLUS Compromise Peace agreement, meant to end twenty one (21) months civil war and the suffering of his own people”. In another words, it was only panic of the looming regional and international’s isolation as well as the possible military intervention. All those contributed immensely in one way or another to the reasons. For that reasons, he lately changed his mind and signed peace accord nine (9) days late but in Juba, South Sudan. Therefore, the original plan was to illogically put pen on paper and then blocks the implementation as time goes, then by putting forward the reservations.

Secondly, he would worry less, since the IGAD-PLUS compromise agreement states: He (Salva Kiir) must remain head of state and government for the next upcoming period of thirty (30) months—transitional period. This is the art of leadership he meant. Kiir’s government idea, directed by the Council of (Elders/from) his own region was to buy time. Government's offensive in the war fronts and unilateral creation of ethnically-based Twenty Eight (28) new states was the real symptom that Salva Kiir has already started assassinating for good the implementation of the Peace Accord. Contrary to IGAD-PLUS Compromise Peace Agreement—an agreement which is only supporting ten (10) states and as stipulated also in South Sudan’s transitional Constitution, 2011.

Conclusion

What is so strange is that, Salva Kiir expects everybody to just believe in what he says not in what he puts in action. In another words, Salva Kiir wants to use the constitution as his personal thing: that he has a legal right to smash the country’s constitution and nobody should blame him because he is the President. He considers himself as above the law of the land! For instance, if Salva Kiir delivers a speech today outlining how elected positions must not be touched in accordance with the country’s constitution, he would tomorrow surprisingly without fear fired an elected official. While the officials he removes were democratically elected just like him and by the same people of South Sudan. However, if you question him as to why an elected official is removed, Salva Kiir and his sycophants would stand tall saying “I/we know there are people who are working against the constitution, the government and the nation. People do not know that I am (he is) the Republic of South Sudan’s legitimate and a democratically elected President”. Now in such contradictory behavior, what kind of human being Salva Kiir and his cronies are? How do you handle such a messes? Should Salva Kiir be considering a kind of South Sudanese leader who must continue leading a nation?

It was indeed surprising for one to read the following sentences from Salva Kiir. “Foreign governments and un-elected bodies will never revere the South Sudanese vote as we do because they did not sanctify it with their blood. They cannot treasure our sovereignty as we do because they did not suffer to establish. They will not cherish our freedom as we do because they did not taste our oppression. Of course we – the elected government – voiced our objections. We were told, however, to keep quiet”. What a degrading diatribe! He even ended his speech by saying: Mr. Salva Kiir is the elected President of South Sudan. When was he elected as the President of the Republic of South Sudan? The best part of all is that, all the elected officials he removed in South Sudan as well as other constitutional’s blunders he made are there automatically proving Salva Kiir’s impractical language invalid. FYI, dear readers, there must be a strange spirit in Salva Kiir Maryardit! I am sure; that same spirit in him definitely makes it also impossible for democracy to become a reality under Kiir’s leadership in South Sudan, comes what!

In conclusion

I would want, therefore, the public and the world to seriously take the following facts into action as we continue receiving empty promises from Salva Kiir’s Government. Salva Kiir’s Government is neither ready to implement the IGAD-PLUS Compromise Peace Agreement nor it is ready to build democracy in South Sudan. In addition and more importantly, the powers he (Salva Kiir) has now in his hands were delegated to him not by the people of South Sudan. He rob them—the powers by himself, because no Presidential elections held in South Sudan since independence and subsequently after 9th July, 2015. Therefore, if you hear today from Salva Kiir Mayardit that “South Sudan’s strives to build democracy”; then he and his group must be clandestinely striving to act, as usual, not in accordance with the law or what is agreed upon by the world. Without exception, we all know how self-appointed and un-elected Presidents work. So, don’t say you are dumbfounded on that day!

Bol Khan is a concerned South Sudan’s civil society activist. He can be reached at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it

The National Parliament Should Put the 28 States on Moratorium

By James Okuk, PhD

October 14, 2015 (SSNA) -- In its extraordinary meeting chaired by President Salva Kiir Mayardit on Tuesday 13th October 2015 in Juba, the National Council of Ministers approved the expansion of states from 10 to 28 as it came in the Republican Establishment Order No 36/2015. The Council applauded the decision of the president and directed the Minister of Justice to table it soon as an amendment bill before the National Legislature (NL).

But this is still unfitting legally until the President nullifies the Order first or else the Council’s directive is considered to be a new initiative altogether. A confusion, isn’t it?

Given the fresh facts that the IGAD-Plus Secretariat has decided to relocate to Juba, and also given the World's support and pressure [see UNSC Resolution 2241 (2015) and IGAD Envoys Memo] for the implementation of the August 2015 Agreement on Resolution of Conflict in South Sudan (ARCISS) as it is without any unilateral alternation, and further more the fact that the UNMISS mandate has been renewed and expanded with authorization of use of UAVs drones and other sophisticated armaments, I don't think Juba or Pagak should have guts to go against the ARCISS. 

What the Council of Ministers and NL are trying to do is a futile short-lived mere psychological fulfillment. Unless the government and SPLM-J first declare publicly that it has granted the UNMISS and IGAD-Plus 'entity non grata' in South Sudan, any amendment that goes against the ratified provisions of the ARCISS will be declared null and void, hence, waste of time and resources.

The IGAD Extraordinary Summit of Head of States and Governments will approve soon nominated JMEC's Chairperson who shall come to Juba to supervise and direct the ARCISS implementation, starting from November 2015. Hence, Juba will be forced to put the Republican EO No36/2015 on Coma until the TGoNU is formed, including the reconstituted Permanent Constitutional Making Mechanism, which shall then handle it within a different governance context and methodology.

I'm saying this because the current alarming situation in the country indicates that Juba and Pagak have no capacity now to go against the demands and sanctions of the regional front-line countries; international community at large; and the mounting internal pressure and suffering from the hardened economy, spread insecurity and loosened social fabrics all over South Sudan.

Some keen young South Sudanese intellectuals are thinking that our national parliamentarians need to acknowledge that the EO No 36/2015 has spurred some dangerous undertakings (e.g., the Luach Jang of Tonj demanding its own state after the recent violent confrontation with the Rek of Riang Nhom and justifying that they are more in numbers than both Gok and Twic West combined; the Twic Mayardit threatening each other with violence over the relocation of the capital to Mayen Abun; the Fratit of Raja demanding detach from Dinka of Malwal; the Bul Nuer expressing dissatisfaction of their new annexation; the Shilluk rejecting division of their Kingdom between West and East Nile States; the Acholi and Madi demanding a separate state, the Azande of Tumbura rejecting being part of Gbudwe State, and the vicious circle of the opened Pandora Box continues, etc).

All these evidenced examples raise a fundamental issue of lack of reliable instruments for instituting the 28 states.

Thus, until a sensible framework is developed, the EO No 36/2015 should be put on a moratorium.

But while lawyers are important in state designs, there is also need to engage demographers, anthropologists, sociologist, geographers, historians, economists and political analysts in determining scientifically the new federal governance reality for South Sudan.

A popularity demand alone is not sustainable; consensus building is the sure way of success.

The provisions enshrined in the ARCISS and TCSS are paramount, and should form the ground-level from which some of these convictions/beliefs are justified for higher interest of the country rather than for those few elites who engineered the 28 States for the cover up of parochial interests of their ethnicities.

Now the safe exit lies in faithful implementation of ARCISS as a supreme document even if it is not a Bible or a Quran, so as to bring back the sanity of peace to the saddened and embattled Republic of South Sudan.

Opting for continuation of war will be more risky, especially with the NATO’s drones and Chinese gunship hovering on our sky in the coming months under the mandate of Protection of Civilians within Chapter VII of UN Charter.

If some people are afraid of the heat of AU Hybrid Courts for South Sudanese war criminals of humanity and serious abusers of human rights fundamentals, the remaining choice will be dark graves or even a graveless worst destiny like what had occurred to the warlords who went against the international community in the recent past.

Therefore, be ware my people; the international politics could be brutal than usual! Let’s start to open our ears and eyes wide by listening to the peace advises of the World’s leadership.

Long live South Sudan!

Dr. James Okuk is a lecturer of politics reachable at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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