On the 31st of December 2019, Dr. Santino published an article on the issue of the number and boundaries of the States in South Sudan. From his academic titles displayed in the article, there can be no doubt that the author is a lawyer by training. The article dealt with two aspects of the matter. It claimed that the issue was not political but legal and constitutional concluding that the “process that led to the formation of the 32 states, was indisputably constitutional”. From this premise, he proceeded to suggest that any attempt to resolve the matter by doing away with the 32 states was not only contrary to the popular demand but a violation of the Peace Agreement itself. He then contemptuously dismissed the former districts at independence as “decisions made more than 60 years ago by colonial authorities who’d nothing but vested colonial interests at heart”. It is these claims and others in the Article that this piece intends to address.
1- The legality and constitutionality of the Order establishing the 28/32 states.
One begs to disagree with the learned lawyer in his conclusion that the “process that led to the formation of the 32 states, was indisputably constitutional”. In fact, the contrary is the case. A cursory look at the Transitional Constitution of South Sudan 2011 reveals that the Establishment Order Number 36/2015 AD that created the 28 states was a violation of the Constitution, legally invalid, usurped the legislative powers of the Parliament and inconsistent with the provisions of the Peace Agreement 2015.
A. Inconsistence of the Order with the Constitution
1. The number of states constituting the Republic of South Sudan is determined by the Constitution. Article 162 (1) of the Constitution provides that “The territory of South Sudan is composed of ten states governed on the basis of decentralization.” Therefore, there can be no valid modification to the number of states in the Republic of South Sudan that is not through a constitutional amendment.
2. Article 199 of the Constitution governs the amendment procedures. It provides that “This Constitution shall not be amended unless the proposed amendment is approved by two-thirds of all members of each House of the National Legislature sitting separately and only after the introduction of the draft amendment at least a month prior to deliberations.” The constitutional amendment is, therefore, a function and power that is squarely within the domain of the National Legislature. The textual, contextual and linguistic formulation of this provision clearly excludes other arms of government from amending the Constitution.
3- Order number 4 of the ‘Establishment Order No 36/2015’ purportedly establishes 28 states. The implication of this Order number 4 is that contrary to the provision of Article 162 (1), the Republic of South Sudan is purportedly composed of 28 states. Order number 4, therefore, amounts to an amendment of Article 162 (1) of the Constitution without complying with the constitutional procedure of amendment. To be valid, the Order must be issued in accordance with the Law and in a manner consistent with the Constitution. This is not the case here and, as a result, the issuance of the ‘Establishment Order’ is an abuse of the powers of the President.
4- Order number 1(2) read together with Order number 10(2) confer the ‘Establishment Order’ with what amounts to ‘self-standing and self-executing’ legislative powers and, thus, supreme to the Constitution. Order number 1(2) provides that “The Establishment Order shall come into force in thirty (30) working days from the date of signature by the President of the Republic.” According to Order number 10(2) “This Order shall not be amended save by another Order issued to that effect by the President of the Republic.” Consequently, by purporting to operate validly outside the Constitution, this Order offends the principles of the supremacy of the Constitution and, thus, inconsistent with Articles 3 of the Constitution.
B. The legal validity of the Establishment Order
5- To be valid, an act or omission must be undertaken in accordance with the Constitution or law. It is acknowledged that under clearly defined restriction the Constitution grants the President powers to make subsidiary legislation. Article 86 (1) provides that “In the case, the National Legislature is not in session, the President may, on an urgent matter, issue a provisional order having the force of law.” Article 86 (3) excludes the President from issuing an order that affects the decentralized system of government or boundary of states. In addition, Article 92 provides that “The National Legislature or either of the two houses has the power to make any subsidiary instrument having the force of law… provided be subject to adoption or amendment by a resolution of that House in accordance with the provisions of its regulations.”
6- The valid exercise of the power provided for under Article 86 demands that the President must comply with three conditions, relevant to this issue: 1. The subject matter of a provisional order must have been urgent and the National Legislature must have not been in session. 2. The Order must be submitted to the appropriate House for consideration. 3. The President shall not make any provisional order on matters affecting the decentralized system of government or alteration of administrative boundaries of the states. At the time the President issued the Order, the National Legislature was in session. Further, the ‘Establishment Order’ does not provide for subsequent tabling before the National Legislature nor does it anticipate any modification to the terms of the Order by the National Legislature. Finally, the ‘Establishment Order’ affects the decentralized system of government and alters the administrative boundaries of the states.
7- The language of Article 86 (3) makes it clear that the Constitution did not intend to confer on the President's unilateral powers to establish new states or alter boundaries of existing states without parliamentary oversight. In this case, the public was not consulted and there were no clear and prior agreed criteria for establishing the new states. By acting inconsistent with the constitutional power granted to him, the President disconnected the rational link between the exercise of power and the purpose for which the power was given – a concept central to the rule of law.
8- To validly exercise the power under Article 92, the President must have been delegated such a power by-law passed by the National Legislature. In addition, the subsequent order, regulation or subsidiary instrument issued by the President must be subject to adoption or amendment by the National Legislature. There was no such legislation authorizing the President to issue an order altering the decentralized system of government and administrative boundaries of the states. In addition, the Order excludes the National Legislature either from adopting it or amending its provisions. One of the reasons for which the Constitution retains the review power of the National Legislature is because, unlike the executive, the process of the parliament allows for participation, checks, and balances.
C. Usurpation of the legislative powers of the National Legislature.
9- Lawmaking is the pre-eminent domain of the National Legislature in South Sudan. The Constitution confers the powers to make laws on the National Legislature, the powers to adjudicate on the basis of existing laws on the Judiciary, and the powers of enforcing existing laws made by the National Legislature or under its authority, on the Executive arm of the government. This is the general doctrine of the separation of powers. The wording and the structure of the Constitution provide for the principle of separation of powers. Although not a separately articulated provision, non-compliance with the Constitution’s scheme for the separation of powers is justiciable on its own right but also amount, in its case, to violations of other provisions of the Constitution. This principle of separation of powers ensures that every arm of government may exercise no power and perform no function beyond that which is conferred upon it by law. Under no circumstance does the Constitution delegate its plenary.
10- The Constitution provides that it shall be the competence of the National Legislature to make plenary laws. According to Article 55(3)(a), the National Legislature shall “Consider and pass amendments to this Constitution.” Article 55(3)(b) further states that the National Legislature shall “enact legislation on all matters assigned to it by this Constitution.” The decentralization and alteration of administrative boundaries of states and changes in the names of such states or the names of capital towns of the states are matters assigned only to the National Legislature by the Constitution. Article 59 (a) provides that the Council of States shall be competent to “initiate legislation on the decentralized system of government and other issues of interest to states and pass such legislation with a two-thirds majority of all representatives.” Article 59 (g) further provides that it is the Council of States that has the competence to “approve changes in state names, capital towns, and boundaries.”
11- By purporting to issue an Order having the force of law that amends the provisions of the Constitution by its implication and alters the boundaries, names, and capitals of the states, the President usurped the legislative powers of the National Legislature and is, consequently, in gross violation of Articles 53 and 59 of the Constitution. For the President to exercise a power that, in terms of Articles 55 and 59, should be reserved for the National Legislature, he was in violation of the principle of separation of powers and infringement on the rule of law. Further, by issuing an Order that purports to create new states and, at the same time, excludes the oversight function of the National Legislature; the President invalidated the functional and institutional integrity of the Legislature.
D- The Establishment Order is inconsistent with the provisions of the Peace Agreement
12 the 26 August 2015, the President, on behalf of the Government of the Republic of South Sudan, signed the “Agreement on the Resolution of the Conflict in the Republic of South Sudan” (the Agreement). The National Legislature subsequently ratified the Agreement on 10 September 2015. The United Nations Security Council, within its Chapter 7 mandate, further endorsed this Agreement in its entirety.
13 Agreement entered into force upon signature and subsequent ratification by the National Legislature. This fact makes the provisions of the Agreement binding on all arms and levels of government. In addition, the endorsement by the United Nations Security Council endows the Agreement with the binding force of international law, which precludes South Sudan from violating the provisions of the Agreement on the basis of its domestic laws.
14 to Article 1.6 of the Agreement “Whereas power-sharing ratios in the conflict-affected states of Jonglei, Unity, and Upper Nile as well as in the remaining seven (7) states shall be as reflected in Chapter I, Articles 15.2 1nd 15.3 of this Agreement.” Thus, the Agreement used the 10 states as provided for in Article 162 (1) of the Constitution, as the basis for power-sharing. However, order number 4 of the ‘Establishment Order’ purports to unilaterally alter the number of the states from 10 to 28. Such a move is manifestly inconsistent with this provision of the Agreement.
For the author to claim that “the Order in and of itself did not eventuate in the establishment of 28 States in 2015” is contrary to the above-established fact. It is difficult to comprehend how the learned Lawyer could sanction a constitutional amendment meant to ‘legalize’ a violation and calls that “the effecting instrument”. It is common sense that laws cannot be applied retroactively.
2- Is the cancellation of the 32 States a violation of the Peace Agreement?
We have shown that the provisions of the Establishment Order Number 36/2015 AD gave it the power of a self-standing and self-executing legal instrument (point 1-A-4 above). It stipulated that it cannot be amended except by another Order issued by the President. This is clear enough.
However, when agreement on the matter proved difficult during the Peace Talks, the Parties agreed to institute the Technical Boundary Committee (TBC) and the Independent Boundaries Commission (IBC) to deal with the matter. The Parties to the agreement committed themselves under Article 1.15.11 to abide by the recommendation of the IBC. If that recommendation was to adopt a number of states other than the 32, how could that have been a violation of the Agreement as the author categorically states?
The Peace Agreement was signed by five Parties and was not subjected to any referendum to seek the approval of the South Sudanese. It allows for amendment of its provisions. In fact, the two extensions of the Pre-Transitional Period were surely amendments. Such amendment was not anticipated when the Agreement was concluded and yet in the spirit of the Agreement, it was done. Therefore, the claim that doing away with the 32 States would be a violation of the Peace Agreement has no basis in fact.
3- The Districts at Independence
In a futile attempt to appeal to the nationalistic sentiments of the South Sudanese, the author proffered that the colonial districts only served “the vested colonial interest”. One may ask the author: what is “dehumanizing” in the colonial districts? As much as colonialism was detestable not all its legacy was unacceptable. One vested interest of the colonial power was to create stable administration in Sudan and by extension in Southern Sudan. The districts were established on a clear set of criteria that included among others population size, economic viability, geographical size, geographic continuity, tribal homogeneity, etc. The local government in Sudan had undergone major changes in 1960, 1971 and 1976 (for Southern Sudan) that changed the number and names of administrative units but all this was nothing more than sub-divisions within the original colonial districts. That these districts had clear boundaries far from being a fallacy is well-grounded. It is a contradiction for the author to claim that the British Colonial Government didn’t determine the borders of the 23 districts but “only determine the boundaries of the various ethnic and sub-ethnic communities”. A district comprised one or a number of ethnic groups, therefore, if the boundaries of the latter are known, it follows that the district comprising those ethnic groups will have clear boundaries.
In fact, why the government and its apologists always lost the argument for the 32 States (including in the IBC) is the fact that they fail to produce coherent criteria for the establishment of those mini-states. The bogus claim that it was a popular demand is belied by the fact that no citizens were consulted prior to the announcement of the Establishment Order Number 36/2015 AD on National Television and Radio. It didn’t help the government and its apologists that the announcement was preceded by playing martial music on these media that ran for hours, reminiscent of coups d’ in Sudan. In this case, it was a coup against the Constitution and the Peace Agreement 2015.
The illegality and unconstitutionality of creating 28 and later 32 states are unquestionable. The Peace Agreement sought to resolve the issue of the number and boundaries of States in a particular manner through the IBC. The Parties committed themselves to abide by the recommendation of the IBC. Hence, the government and its apologists should desist from insisting that the option of 32 States is a sacred cow. Such a state of mind is inconsistent with the letter and spirit of the Peace Agreement.