For immediate Release 8th October 2015
[Press Statement, by South Sudan Civil Society Organizations, 8th October 2015] Following the announcement of Presidential Order No 36/2015 for the creation of 28 states in Republic of South Sudan instead of the existing 10 states as provided for in the Transitional Constitution of South Sudan (TCSS) 2011 (amended 2015), we the under signed civil society organizations wish to reiterate our loyalty and respect to the Constitution on discussing matters pertaining to the nation. Therefore we would like to make the following submissions regarding this critical and urgent matter of national concern. Our submissions will mainly fall under three categories;
1. Legal and political implications
(1) The creation of 28 states poses serious legal and political implications on ground of procedural irregularities, violation of the TCSS, 2011 (amended 2015) read together with the Agreement on the Resolution of Conflict in South Sudan, in our opinion the timing of this decision is unfortunate and can lead to increase burden on the already over stretched economic status, national revenue and human resource capacity deficit that exists in South Sudan. Finally, creation of states along ethnic lines will encourage ethnicity and exacerbate the already existing conflict among South Sudanese communities and lead to total loss of efforts made to rejuvenate the destroyed social fabric of our nation.
(2) The Republic of South Sudan is politically organized by the TCSS, 2011 (amended 2015) on two bases to reflect: unity in diversity and democratic and decentralized system of governance which is reflected in some provisions of the constitution such as article 36 (1) which reads “All levels of government shall promote democratic principles and political pluralism, and shall be guided by the principles of decentralization and devolution of power to the people through the appropriate levels of government where they can best manage and directs their affairs”. In other words, to achieve these two objectives, Article 162 (1) created South Sudan as a country composed of ten states governed on the basis of decentralization.
(3) The TCSS, 2011 (amended 2015) does not have express provision for creation of new States.
However, Article 59 (a) of the TCSS, 2011 (amended 2015) grants the Council of State power to “initiate legislation on the decentralized system of government and other issues of interest to the states and pass such legislation with two-thirds majority of all representatives” In addition, Article 59 (g) provided for the Council of State to “approve changes in state names, capital towns and boundaries respectively”. Therefore, the scope and powers of the Council of State with regard to creating new states in this case is important to assess the constitutionality of the Presidential Order purporting to create 28 new States in the Republic of South Sudan.
(4) The purported creation of 28 states complicates the agreed power sharing ratios in the recently signed peace agreement on the resolution of conflict in South Sudan between different political actors particularly the two major partners-the Government of South Sudan and the armed opposition SPLM/A in Opposition, which brings about a new constitutional dispensation in the country. In other words, any attempt by either of the parties to unilaterally create new power sharing formula particularly as stated under Order 9 of the Presidential Order No 36/2015, which intends to actualize the appointment of Governors and operationalize state government in the 28 newly created states prior to participation of the other stakeholders, will take the parties back to the drawing board and definitely opened up the already signed peace agreement for renegotiation which amounts to violation of the Agreement.
2. Authority of the Presidential Order No/36/2015
(5) While the Presidential Order No 36/2015 is said to derive its Authority from the TCSS, 2011 (amended 2015) under the provisions of Articles 36(1), 166 (6) (a) & (b), 101 (b) (f) (k) and (u) respectively. In details, article 36 (1), provide the principle of decentralization and devolution of powers as political objectives of the state while article 166 (6) (a) and (b) provide objectives of local government to “promote self-governance and enhance the participation of people and communities in maintaining law and order and promoting democratic, transparent and accountable local government” (b) “establish the local government institutions as close as possible to the people” Article 101 (b) provide for power of the President to “supervise constitutional and executive institutions and provide exemplary leadership in public affairs” Article 101 (f) accords the President power to “initiate constitutional amendments and legislation and assent to and sign into law bills passed by the National Legislature” Article 101 (k) gives the President power to establish independent institutions and commissions; and finally Article 101 (u) provide the President with powers to “perform any other function as may be prescribed by law”.
3. Conclusion and recommendations
(6) In light of the above authority cited by the Presidential Order No 36/2015 for creation of 28 states, and with exception of Article 101 (f), all the rest of the provisions of the TCSS, 2011 (amended 2015) cited in the order do not grant powers to the President to create new States or alter boundaries of existing states. The only mandatory provision that could have warranted the Presidential Order is 101 (f). According to this article the president can initiate constitutional amendments, yet such amendment would have to undergone the normal process of introducing an amendment Bill to the National Legislature one month in advance of the deliberations. The proposal would have asked for amendment of Article 162 (1) in this case that established “the territory of South Sudan as composed of ten states and other relevant articles of the TCSS 2011 (amended 2015)
(7) Order 1 paragraph 2 provides that the establishment order shall come into force in 30 working days from the date of its signature by the President. That means the legal effect of order 1 stand to be a provisional order and not a proposed amendment of the TCSS 2011 (amended 2015). To the contrary, the power to issue self-standing orders is limited by the constitution under article 86 (5) which reads “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”
(8) Therefore, quoting Article 86 (5) of the TCSS, 2011 (amended 2015), as one of the articles that the Presidential Order No: 36/2015 derives authority from for the creation of 28 states cannot be justified and as a result renders such order unconstitutional and as a violation of the same article 86 (5), article
162 (3) and (4) of the TCSS, 2011 (amended 2015) which is an exclusive legislative competence of the Council of State to name or alter boundaries of the state by necessary legislation or by resolution and not otherwise.
(9) Finally and in the spirit of Article 99 of the TCSS 2011 (amended 2015) we humbly urge the
President and his advisors to review the decision to create 28 states by considering the following
i. Suspend the Presidential Order No/36/2015 during the pre-transitional period and allow for proper constitutional amendment procedures in order to create room for greater participation of people of South Sudan, all political actors and other none- state actors in discussions regarding this important matter, after which the agreed principles shall be implemented in accordance with the law;
ii. Establish National Boundaries Commission to immediately engaged in the study of the administrative boundaries of the states prior to introduction of the proposed amendment of Article 162 (1) of the TCSS, 2011 (amended 2015) in order to avoid communal conflict over ownership of lands;
iii. The security of the people of South Sudan is dependent on the President’s decision, therefore we further urge the President to willingly stay the implementation of the order and lead the nation toward realization of sustainable peace under the provisions of the Agreement on the Resolution of the Conflict in the Republic of South Sudan 2015 and later present the idea of 28 states as a proposal to be deliberated upon by the Reconstituted National Constitution Review Commission to be created under the provisions of the Peace Agreement.
1. Assistance Mission for Africa (AMA)
2. Community Empowerment for Progress Organization (CEPO)
3. Citizens for Peace and Justice (CPJ)
4. Dialogue Research Initiative (DRI)
5. EVE Organization for Women and Development
6. End Impunity Organization (EIO)
7. Gardet Pentagon
8. Manna Development Agency (MADA)
9. Rural Action Against Hunger (RAAH)
10. South Sudan Democratic Engagement Monitoring and Observation Program (SSUDEMOP)
11. South Sudan Women Empowerment Network (SSWEN)
12. South Sudan Peace Initiative for Development (SPIDO)
13. Solidarity Ministries Africa for Reconciliation and Development
15. Voice for Change