By Riang Yer Zuor Nyak
January 20, 2015 (SSNA) -- When the war started in December 2013, Salva Kiir, Barnaba Marial Benjamin, Michael Makuei, Ateny Wek Ateny, and many others could be seen on televisions, local or international, talking about Salva as a legitimately elected president, or the government as a legitimately elected one. Beginning from August of last year, IGAD joined the singing and started referring to Salva as the “elected, incumbent president”.
The SPLM/A’s response to this claim has been consistently that Salva and his government are not elected ones. Rather, they are constitutional. Any claim of legitimacy should spring from the Transitional Constitution of the Republic of South Sudan, 2011. Using the 2010 election as the source of his legitimacy would be futile attempt to twist an obvious reality.
The 2010 Elections
In April 2010, the Republic of the Sudan conducted national elections for all positions, except for those of the County Commissioners. This was because the Interim Constitution of the Republic of the Sudan and the National Election law did not recognize such positions. The positions to which the law authorized election included the position of the President of the Government of Southern Sudan. Salva Kiir was elected to this position as head of the autonomous regional government. This was in line with the provisions of the Comprehensive Peace Agreement (CPA).
The national election law gave the holders of the elected positions five years to serve before the next elections. The anticipated time for the next elections was April 2015, and this is still the case for the Republic of the Sudan.
The Independence in 2011
In fulfillment of the provisions of the CPA, South Sudan conducted a referendum in January 2011 on whether it should remain part of the Republic of the Sudan, or it should secede from the union to form an independent state of its own. The people of South Sudan overwhelmingly chose secession over the unity of the old Sudan.
On July 9, 2011, the Republic of South Sudan was born as the newest or youngest state in Africa in particular and the world in general. On that day, a new and independent transitional constitution was promulgated to establish the new state. It is this constitution that gave Salva Kiir his new four-year mandate as the President of the Republic of South Sudan. As such, his term began counting from that day to the 9th of July 2015.
The Legitimacy Question
Any one elected or appointed under a constitutional provision can claim legitimacy. However, such legitimacy is usually bestowed up on certain conditions and behavioral requirements. Once the person ceases to meet those requirements, or once those conditions disappear, legitimacy can be lost. This is not different with Salva Kiir.
Under the Interim Constitution of the Republic of the Sudan, 2005 and the Interim Constitution of the Government of Southern Sudan, 2005, Salva Kiir was elected to administer the region for five years. His mandate was to last up to April 2015. Within that period his legitimacy would run uninterrupted if he did not commit any behavioral mistake, or if he did not cease to function due to other conditions.
However, Salva’s time was interrupted on July 9, 2011 when South Sudan broke away from the rest of the Sudan. As a result, condition (remaining as part of the old Sudan) disappeared. Allegiance to remains as the current Republic of the Sudan ended, and a new allegiance to the new state with a new constitution began. This condition ended the April 2010 mandate, as it ended the former autonomous status of what was then one of the regions of the Sudan. That mandate went together with the electoral legitimacy, for you could not have one without the other.
Under the Transitional Constitution of the Republic of South Sudan, Salva was given a new mandate as the President of a new sovereign state. The new constitution gave the president four years before a new election could take place under a new and permanent constitution. The new term and mandate gave a legitimacy that would run through July 9, 2015.
The End of the Constitutional Legitimacy
Salva Kiir started the process of ending his constitutional legitimacy, leading to the current situation, a long time ago. He intentionally violated the constitution here and there, and a step-by-step process. The last step was the eruption of violence on December 15, 2013. Some of these violations are discussed below.
1. Appointments of Ministers
What I believe to be the first violation of the new Constitution came after the proclamation of Independence. Salva appointed ministers to his cabinet and sent their names to the newly reconstituted legislative assembly in a sealed envelope. He only needed the assembly to approve what was in the envelope without seeing exactly whose names were on the paper for approval. This went against Article 113 which gives the National Legislative Assembly the power to approve presidential nominations of ministers.
Article 113 (2) states that “Appointment of the Ministers of the National Government shall be approved by a resolution of the National Legislative Assembly adopted by a simple majority vote of all members.” This gives the Assembly the power to scrutinize the nominee to see if they meet certain constitutional criteria as provided in sub-Article 3.
Sub-Article 3 provides that “Ministers of the National Government shall be selected with due regard to the need for inclusiveness based on integrity, competence, ethnic and regional diversity and gender.” The act of forcing the Assembly to approve a list without scrutinizing individual nominees before they could become ministers did not give the Assembly the chance to meet such a constitutional obligation. It follows that the process was unconstitutional.
2. Recruiting and Training of Tribal Militia
The other significant violation came with the recruitment of a personal tribal militia, which has become known as the ‘Gel Weng’. Article 151 (3) of the Constitution does not provide him with the option of organizing his own private army without a provision of a law. It states, “No person or persons shall raise any armed or paramilitary force in South Sudan except in accordance with this Constitution and the law.” If he saw an urgent need for his personal militia, then Salva should have gone to the National Legislature to get some sort of approval or some legislative act of authorization, as this type of undertaking needed a law and money, and the National Legislature supposedly holds the national purse as stated in Article 55 (3) (d), read together with Articles 87 and 88.
Article 55 (3) (d) says that the National Legislature has the competence to, among other things, “…authorize annual allocation of resources and revenue, in accordance with Article 87 of this Constitution…”
While Article 87 talks about allocation of resources and revenues, Article 88 talks about general budget proposals and estimates to be presented by the President to the National Legislature for approval and enactment of an appropriation bill.
Therefore, the whole undertaking of recruiting, training and deploying the Gel-Weng was very unconstitutional.
3. Removal of Governors
In 2013, Salva started revoing state Governors allegedly exercising a constitutional provision. Article 101 (r) of the Transitional Constitution of the Republic of South Sudan allows removal of a Governor only when there is a crisis in the state. It states that the President may “…remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state that threatens national security and territorial integrity…”
In Lakes State, there was a crisis—an insecurity that remains to exist as of current. Salva removed Chol Tong on the pretext that there was insecurity in his state. In Unity State, there was no insecurity of any sort. Yet, he removed Gen. Taban Deng Gai without explanation. Those who were aware of the political differences between Salva and the two gentlemen knew that the removals were politically motivated. The Constitution does not provide for politically motivated removals.
After removal, the Constitution provides for temporary replacement, which Salva did by appointing care-taker Governors. After that, an election has to take place within sixty days. Article 101 (s) states that the President shall “…appoint a state care-taker Governor who shall prepare for elections within sixty days in the state where the Governor has been removed or the state legislative assembly so dissolved in accordance with the provisions of this Constitution, the relevant state constitution and the law…” This provision of the Constitution has not been fully honored by Salva Kiir. He appointed care-taker Governors who have served beyond sixty-day Constitutional requirement. Elections have not been organized ever since the care-taker Governors were appointed.
In addition to the two initial care-taker Governors, he has appointed two more care-taker ones, replacing Kuol Manyang and Paul Malong Awan, respectively. Therefore, as of now, there are four Governors who are serving unconstitutionally. Their mandates do not stem from the Constitution. They owe their legitimacy to Salva Kiir, not to the Transitional Constitution of the Republic of South Sudan, 2011.
4. Taking and Retaining Political Power
At the beginning of the violence, Salva and his group were constantly talking about a coup plot that they had discovered and foiled. They kept talking about their murderous acts as protecting the Constitution, or against unconstitutional act of trying to take power by force. Article 4 (1) states that “No person or group of persons shall take or retain control of State power except in accordance with this Constitution.” Two words: ‘take’ and ‘retain’ are very important elements of this provision.
As their statements reveal, they are doing what they are doing, pretending to be preventing unconstitutional takeover of the political power. But, all evidence point to the lack of violent takeover on the part of Salva’s political opponents. Instead, Salva and his group are the ones trying to retain power through violence, which is unconstitutional.
5. The Deaths of the More than 20,000 Ethnic Nuer in Juba
The deaths of the more than 20,000 civilians began on the 15th of December and it continued until all the remaining ones had to take refuge in the UNMISS compounds. They were specifically targeted on the basis of their ethnic backgrounds. Every indication points to such an act as premeditated. This act of unjustly killing people went against the very Constitution that they claim to protect.
Under the Bill of Rights, Article 11 of the Constitution talks about life and human dignity. It states, “Every person has the inherent right to life, dignity and the integrity of his or her person which shall be protected by law; no one shall be arbitrarily deprived of his or her life.” The way these people were murdered was such that they had no right to life, no human dignity and the integrity of their persons was never respected. The law simply failed to protect them as their lives were taken arbitrarily on the streets, in their homes and in their cars.
It was an ultimate act against the Constitution.
Now, Is Salva A Legitimate President?
I shall begin by saying that Salva is not an elected president, and any claim of legitimacy should not come from the 2010 election. It follows that he is, instead, a constitutional president. Any claim of legitimacy should come from the Transitional Constitution of the Republic of South Sudan, 2011.
However, by his behavior in office, he has eroded away all the constitutional legitimacy that was bestowed on him by the Constitution. Right now, he only stays in power because he can. His attempt to organize an election to legitimize his rule so as to meet the constitutional deadline is a sign that all along, he has been talking of himself as an elected president, just to fool the people and win their support—internally and externally. He really knows that he is not an elected president.
After all, he admitted his lack of electoral legitimacy by stating, quoted on the 13th of January 2015, that “Those of Riek [Machar] and their friends are trying to hold the country back from going for elections so that they keep the government in hang, so that when the term of this government comes to an end in July, they come out and say you have no legitimacy, which I don’t think our people will accept”. He further stated, “The simple reason for going for elections is to avoid power vacuum and losing legitimacy.” That is one big brutal attack on his own electoral legitimacy claim, as it is clear from his two statements that he is after the constitutional mandate when he talks of the loss of legitimacy in July.
Another problem that Salva is facing is lacking of things to say. The only thing that he can always come up with is some intelligible attack on Dr. Riek Machar. In his statement, he talks of “Those of Riek Machar and their friends…” as “…trying to hold the country back from going for elections so that they keep the government in hang…” Before Salva’s statement, Riek Machar had not made any statement since the talk of the election began this month.
It was only after his (Salva’s) statement that James Gatdet Dak, the Press Secretary of Dr. Riek Machar, was quoted on the 17th of January 2015 as having made a statement to this effect. He was quoted to have said that “’Our leadership rejects this and asks the South Sudanese and the international community to reject it.’” So, where does Riek Machar come in, in Salva’s statement? He just attacked Riek Machar before Riek Machar said anything. Was he trying to pre-empt so that he could later say, see, I told you that Riek Machar was against the election? It was just a sign that he was not even comfortable with what he was saying, and was trying to blame someone for something.
Anyway, it also shows that he knows that he has completely struck down his constitutional legitimacy by ruling the country in contravention with the Constitution. That is why electoral legitimacy has always taken precedent over constitutional one.
So, if not a legitimate president by election, and not a legitimate president by constitution, can Salva really still go around and talk of himself as legitimate? Legitimacy comes and goes. When it is there, then it is there. But once it goes, it no longer exists. Just because it was for Salva, that doesn’t mean that it will always exist for him. He can try as many as he wants to run an election to restore it. But, he will not regain it by running the elections that he and his group are talking about.
I personally believe that the elections that they are talking about in Juba will never take place. Talking about them only betrays Salva’s usual claim of legitimacy on the basis of the April 2010 election, a thing that places his supporters in a tongue-tied position at a time when their only point of support is electoral legitimacy.
There are many reasons for me to take the position that the elections will never happen. I will talk about these reasons in my next article. In the meantime, let us all keep listening to Juba on this issue.