15 February 2020
Maulana Bol Joseph Agau Adhil
On January 1st, 2020, I woke up to find a new article running on the newsfeed of the OperaNews, an online news provider. Being a curious reader of Dr. Santino Ayuel Longar’s and other well-tutored South Sudanese articles as I emulate to be his like in the intellectual community. I took my time to read with care and comprehension of the highest order before I could refute any lack and/or exaggeration, and appreciate the satisfying part as well. I already thanked him on that note on our Whatsapp chats.
Indeed, my former high school mate who got better opportunities to study in Canada has some beaming intellectual and integrity issues regarding the Executive Order 36, and the subsequent orders that led us to the 32 States, are concerned.
I want to invite the readership to tediously follow through the legal quotations from the Constitution: The supreme law of the Republic of South Sudan. I believe that the government is being run by the Constitution 2011 as amended, and the statutes as deliberated on and passed into law and assented to by the President of the Republic.
First and foremost, The Establishment Order Number 36/2015 AD decreeing the division of the country into twenty-eight states, and later added four others by the Republican Executive Order, was illegality ab initio. Why do I state such an alarming legal statement?
The following are the reasons why I averred as such;
The Executive Order provided that it shall:
- Come into force in thirty (30) working days from the date of signature by the President of the Republic; and
- Not be amended save by another Order issued to that effect by the President.
If you put the Executive Order into the Constitutional and the Legislative Test, you will find out the following;
Constitutionality of the Executive Order
- The Executive Order is a stand-alone item of the Constitution and the law. It beats the constitutionalism and the rule of law. It is a smack in the face of the checks and balances available in the country to protect from excessive use of power. This is a grave contravention of the Constitution of the Republic of South Sudan 2011, as amended.
- One would ask the question of the definition of the Executive Order that created the states. Is it a prerogative of the President; is it provisional or administrative prerogative?
In this case, assuming it was administrative, regardless of whether or not the President has the authority to issue it, administrative orders must conform to the Constitution and the law, and do not violate any of the constitutional and statutory provisions. This Executive Order, unfortunately, adversely affects the Constitution and the law; it, therefore, should then be a provisional order that can be rescinded in the same manner as it was provisionally ordered.
To revisit the law and for citation purposes, I would like to get you to the books of the law of our nation. Provisional Orders are dealt with under Article 86 of the Constitution 2011, as amended. First, provisional orders are issued on an urgent matter “in case the National Legislature is not in session” (Article 86(1)).
For the case of the 32 States, there was no urgency in the matter, and the National Legislature was in full session. Further, “the provisional order shall be submitted to the appropriate House of the National Legislature as soon as it is convened” (Article 86(2)). This Establishment Order is in contravention to this provision by stating that it is final, and the only redress to it was via another Executive Order as provided in the EO36(10).
Furthermore, it is in Article 86(5) provision as it reads verbatim: “Notwithstanding sub-Article (1) above, the President shall not make any provisional order on matters affecting the Bill of Rights, the decentralized system of government, general elections, annual allocation of resources and financial revenue, penal legislation or alteration of administrative boundaries of the states”.
With the Executive Order 36 in operation, it is a clear blatant violation of the matters prohibited by the provisions of this sub-Article; the Order has altered the administrative boundaries of the states and legislated on the decentralized system of government.
It is not valid from Dr. Santino Ayuel Longar’s op-ed that the Executive Order was in accord with the Constitution 2011 as amended and with the legislature. I’m afraid I have to disagree with the learned brother that Executive Order 36 is not in flagrant violation of Article 86 of the Constitution 2011, as amended.
The Order is tantamount to the amendment of the Constitution which stipulates in Article 162 the following;
(a) – The territory of South Sudan is composed of ten states governed based on decentralization (sub-Article 162(1)).
(b) – State boundaries shall not be altered except by a resolution of the Council of States approved by two-thirds of all members (sub-Article 162(3)).
(c) – Names of states and their capital towns shall not be altered 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 (sub-Article 162(4)).
The Executive Order drastically changed the number of the states from ten to twenty-eight (28); and altered states’ boundaries, names and state capital towns without following the provisions of Article 162 of the Constitution 2011 as amended.
The Constitutional articles quoted in the Executive Order as the authority on which the order is founded 36(1), 166(6)(a) and (b), 101(k)(u)(b) and (f)) are purely administrative except for Article 101(f). This Article empowers the President to “initiate constitutional amendments and legislation” but not to make them.
My learned brother Dr. Santino Ayuel Longar knows very well that to “initiate constitutional amendment” is not the same with “making the constitution” singlehandedly.
Therefore, the body with authority to make amendments is the National Legislature as provided for under Article 55 (3)(a) of the Constitution. Even the initiation of legislation by the President is conditioned by the provisions of Article 59(a) which states that the Council of States shall be competent to “initiate legislation on the decentralized system of government and other issues of interest to the states and pass such legislation with a two-thirds majority of all representatives.”
This was never given any legal attention it deserves in the Executive Order. May I humbly ask, was this the constitutionalism and the rule of law we aspire to be as a Republic after the secession?
The R-ARCISS Agreement as the Legal Yardstick to measure the legality of actions;
The “Agreement on the Resolution of the Conflict in the Republic of South Sudan” that was signed by the stakeholders in Addis Ababa and Juba on the 17th and 26th of August 2015, was abrogated by the Executive Order before the infamous 2016 July 8th. We could add that to the 26 Reservations where the Agreement was implemented on its foundation.
However, with the current ARCISS, as Dr. Santino Ayuel Longar quoted, the provision that stipulates the TBC, the IBC and finally the Referendum, indeed, the RARCISS Agreement did not lack to provide the alternatives to resolve an impasse. However, it is a dead-end to ask for a referendum within the timeframe of 100 days to the ‘Last Chance’ deadline as the world watches and hovering over South Sudan to make a decision on the number of States and compromise on the security arrangements.
Administrative short history and relevance to the current impasse on the Number of States and their Boundaries;
Establishment of Administrative Units did not start yesterday with President Kiir Mayardit and Dr. Riek Machar Teny Dhurgon; Southern Sudan underwent several changes in its administrative boundaries. The most notable ones for references were in;
- 1971 (Dr. Jaafar Bakhiet’s Local Government Act).
- 1976 (The High Executive Council’s decision to increase the number of provinces).
- 1983 (the division of the Southern Region into three regions).
- 1994 (the creation of new federal states in Sudan). In all these changes, the internal boundaries of smaller administrative units (districts, sub-districts, etc.) have been kept intact.
- This principle was reaffirmed in the Comprehensive Peace Agreement, 2005, and by all conferences organized by the Peace Commission of the Government of Southern Sudan (2005-2011).
Besides, the criteria for undertaking the changes were spelt out and publicly debated. This Establishment Order deviates from this well established administrative and legal tradition.
The new borders are drawn arbitrarily and were never debated by the Parliament and the Council of States. What is clear is the ethnic trend in the Order. It is likely to compound the border disputes. Some analysts see the border wars after the formation of the government will be the next challenge of the new RTGONU.
In conclusion, the Executive Order 36 that established the 32 states was not a parliamentary process; the Order was a mighty Executive Order that could only repeal itself as provided by the EO36(10). Kindly read the Order.
It is a flagrant statement from my learned colleague to claim that the establishment of 32 states was a popular demand of the people; when was the public consulted if I may ask? How big was the size of the public when the country was at war, and the estimated number of citizens outside the country was as high as half of the country’s population as per the 2008 Census statistics.
My learned brother Dr. Santino Ayuel Longar further denied the objective fact that the country is being run on the Colonial Districts of 60 years ago. The country is on the same history as Colonial Districts, sadly my learned brother.
The people of South Sudan would even want more than 79 States as their previous counties of the ten states as far as the boundaries and borders are discussed and agreed upon by themselves regarding the 1956 January 1st borders. This Reference point in our administrative units is not going away soon.
To finally remark; I would like to loudly and clearly state that violating a constitution and the law and later seek parliamentary redress, remains a violation as it serves the violator’s interest but not the public interest.
Bol Joseph Agau Adhil
The Author is a practising Advocate and a concerned citizen in the state affairs; he can be reached on the following address; Email: firstname.lastname@example.org