06 February 2020
The legality of Order number 36 of 2015 that created the 28, 32 states plus Abyei, and the importance of public participation in the constitution process
On October 2nd, 2015, President Salva Kiir signed an executive order or “Establishment Order” No 36/2015 AD. The decree established the new states largely along ethnic lines. The order has caused considerable tension and significant violence in former Upper Nile and Western Bahr el Ghazal States. Continued conflict in Malakal has significant potential to destabilize the entire country. The Order has, for the most part, been a subject of controversy between its supporters and its critics. In January 2017, President Salva Kiir restructured the country once more and created seven additional states bringing the total number of states in the country to 32 including the disputed region of Abyei.
Per the Transitional Constitution, state governors are supposed to be elected; the president has the authority only to appoint ‘care-taker’ governors. So far, a lot of attention has been focused on whether the SPLM-IO will be given the opportunity to nominate governors for some of the new states, but elections should also be considered when security permits.
Analysts offer three main explanations for Kiir’s reasons to create the 28 states. First, he may have wanted to secure a balance of power that favoured his supporters and/or members of the Dinka ethnic group. Second, he may have wanted to reinforce his patronage network by creating new positions of power that he could award to key figures in order to buy or maintain their loyalty. Third, he may have felt pressure to respond to long-standing demands for federalism and greater decentralization of power (Stimson).
This is an attempt to answer the questions of whether the Order number 36 2015 was constitutional? Whether the operationalisation of those states is legal? And what is the constitutional implication involved? Having all these questions in mind let me first begin by defining the term ‘constitution’. This is an attempt to answer the questions of whether the Order number 36 2015 was constitutional? Whether the operationalisation of those states is legal? And what is the constitutional implication involved? Having all these questions in mind let me first begin by defining the term ‘constitution’.
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