The Politics of Federalism in South Sudan

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SOUTH SUDAN: FEDERALISM OR DECENTRALIZATION?

By Dr. Richard K. Mullah

Introduction: 

South Sudan was formally declared a Republic on 9/7/2011 when it attained full statehood as a sovereign independent state amid jubilations of all South Sudanese and their friends. That was a great historic moment. It was the outcome of a referendum held in January the same year giving 99% of the votes in favour of ceassesion as opposed to continued unity with Northern Sudan.

Surprisingly hell struck, Juba the Capital, on 15/12/2013, barely two years after the birth of the new republic. Destructive fighting between the Dinka and Nuer (the two largest ethnic communities) ensued. It was a bloody moment and amidst the horror of the whole world. Brutal fighting claimed thousands of lives of South Sudanese and displacing many more others.

In this very short period of independence South Sudan has had checkered history of constitutional development. Dictatorship, corruption, tribalism and civil unrest has engulfed the country. Clearly the highly centralized Transitional Constitution of 2011 has broken down. The centre can no longer hold and things have fallen apart for President Salva Kiir.

Under the said Transitional Constitution South Sudan has been centrally controlled under a defacto one party system- The Sudan People’s Liberation Movement/Army (SPLM/A). The too much talk of democracy and multi-partism is none other than rhetoric.
General Salva Kiir the President of the Republic is a very reluctant reformer and is adamant about any change for the better. He would rather fight to subdue anyone including the UN.

Thus opposition within the party became inevitable. Dr. Riek Machar the former Vice President who was unceremoniously dismissed in July 2013 was also forced to flee for his life to the bushes of Upper Nile. As we write Dr. Riek has staged a ferocious war of come back to reform the system.

Indeed the periods of decentralization (1972-1983 and 2005-2014) can be considered as failed attempts.The main problem has been constant interference and undermining of lower level governments by the respective Presidents. Those actions were first done by Numeiri in 1980, 1981 and 1983 when he continuously dissolved the Regional governments in South Sudan in order to achieve his objective of controlling and marginalizing the Southern Region. The Self-government Act 1972, (the then Constitution for the Southern Region) was abrogated, it broke down and the SPLM/SPLA war of 1983 was started.

President Kiir has followed the same footsteps of President Numeiri; he has never respected any constitution since he took power in 2005. He appointed the Ministers, members of the national legislature, civil servants, members of the organized forces and the judiciary and also dismissed elected Governors Etc; Until the Transitional constitution also broke down. Now another civil war has also started as from 15/12/2013

In fact the two leaders have never had the understanding, the political will and commitment to support decentralization/devolution and make it work.As we hear President Kiir and his delegation have adamantly insisted on having a decentralized government amidst wide spread cries for federalism in Equatoria, Upper Nile and parts of Baher El Ghazal which could amount to 80% of the population.

Skeptics of federalism have always argued unconvincingly that Equatoria would break away if the South Sudan were to be federated and that the Nuers of Upper Nile would refuse to share the proceeds of the oil with the rest of the country. There is absolutely no scintilla of evidence to prove those wild allegations. And, even if, that were the case, emergency powers under the constitution could be used against any balkanization.

The real problem has, however, been the greed of those in power wishing to recentralize more powers with the aim of looting the country and marginalizing the rest of the other communities. In other words, President Kiir and his group have become the “pigs” in George Orwell’s famous story of “the Animal farm”. There is therefore need to bring real life by introducing a suitable federal constitutional arrangement for the country if lasting peace were to prevail.

Many could still doubt that South Sudan may not hold together as a peaceful democracy but one would still argue that indeed the survival of the country as a democratic nation would depend on its adopting federalism.The Republic of South Sudan has an estimated area of 239,285 Square kilometers (excluding Abiyei) and a population of about 8.2 million according to the disputed 2008 population census. There are 64 ethnic groups with various cultures, speaking different languages and worshiping several religions including Christianity, Islam and atheism.

The Size of the country or geo-political entity also matters; as shown above, the Republic of South Sudan is a very large geographical entity and difficult to manage from the national Capital (Juba) or the ten current state capitals. There is great need to break down the sizes of the respective states from ten to about 22 (twenty two) along the former boundaries of the colonial districts or so to make them more manageable and reachable and also be symmetrical.

As stated elsewhere the populations and cultures available in the Republic of South Sudan need Political integration. We need to make the 64 ethnic communities in South Sudan to integrate, unite and live in harmony and this can be made possible through a system of federal governance. Federalism is also ideal for post conflict environment and building and accommodating diversities and; Managing conflicts of diversities can be achieved though a federal system of administration to avoid Dinka/ Nuer conflict as happened in December 2013 or Equatoria/Dinka conflict as was the case in 1983 during “KoKora”. Federalism enables smaller governments at the state and local government get closer to the people and become more responsive to their local needs.

In addition, Federalism provides for the promotion of good governance and popular participation in government in the sense that all levels of government can democratically elected which will offer opportunity for many people to participate in the management of their own affairs.In the case of the Republic of South Sudan, the experience of the Regional government in Southern Sudan from 1972 to 1983 has shown that this country could be successfully run on democratic basis if there was no interference from the top. There were several transparent, fair and free elections run in 1973, 1978 and 1983 leading to the establishment of democratic governments during those periods.

Furthermore the shared history of South Sudanese cannot be doubted as they fought together all the long wars of 17 years (1955-72) and 22 years (1983-2005) against the oppressive regimes in Khartoum culminating in the creation of an independent sovereign state of South Sudan voted through a referendum counted at 99% for succession of Southern Sudan from Northern Sudan.  Moreover, South Sudanese have a strong sense of identity, they are all Africans from 64 ethnic groups including the Dinka, Nuer, Zande, Bari, Shilluk, Lotuka, Moru etc.

However, the current set up of 10 (ten) states and 77 (seventy seven) counties is extremely imbalanced. Some states are very large such as Jongolei and Western Equatoria and some communities are marginalized like the Murle, Moro, Kechipo, and Anuak. Fertit etc. these weaknesses can be ironed out through a symmetrical federal system.
Since we are advocating for a federal Government and not a confederal Government, then the possibility of the central government becoming weaker than the regional or local identities are minimal.

Definitions

What is federalism?

Legally, a Federal constitution is where the legislative and administrative authority of the National and State Governments are both subordinate to the Constitution, but co-ordinate to one another. In other words, the powers are divided in such a manner that the national government and the state government are each within a sphere co-ordinate and independent. They are mutually exclusive of one another and reciprocally limited in their fields of power. According to Riker (1964:5)

“the essential institutions of federalism are a government of the Federation and a set of governments for the member units, in which both kinds of governments rule over the same territory and people and each kind has the authority to make some decisions independently of the other”…

Federalism equals an ideology that combines shared rule with self-rule.

What is decentralization?

There is no standard definition for decentralization. However, it is generally understood that decentralization is the process by which functions and decision making authority are transferred from the national government to the sub-national government or from one sub-national government to yet a lower one, depending on the tiers of government established in a particular country. Thus there are various models of decentralization all over the world and in fact every country practices decentralization in one form or the other.

The various models of decentralisation:
There are several models of decentralization which include the following:

(i) Decentralization by deconcentration or by delegation.

Decentralization by deconcentration or by delegation is more or less the same model of decentralization with very slight difference in that deconcentration is a weaker model than that of delegation.

The two (deconcentration or delegation) are the process for the transfer of power or functions to local representatives of the Central Government. The concept is hierarchical in that the Central Government delegates authority for the discharge of specific functions to its staff that are located in the departments situated outside the Headquarters.

The powers do not involve decision making but only the execution of policies already laid down. They can be withdrawn at anytime at the will of the Central Government. The field offices thus implement decisions taken from above as they are, without altering or amending them; they being mere agents of those above.

It could be said that the Sudan was implementing this system of government from the condominium period in 1899 to the period of local autonomy for the Southern Sudan in 1972. During the condominium period decisions used to come from the Governor General in Khartoum to all the other Governors in the nine provinces in the Sudan. Even after independence in 1956, and up to 1972, decisions were being made by the President or Prime Minister in Khartoum for execution by the Governors or commissioners all over the country.

(ii)Devolution

Decentralization by devolution accords the inferior government a semi-autonomous existence and status independent of the Central Government. The features of a devolved government are as follows:
(a) It is autonomous and has corporate status at law, with all the legal incidents flowing there form.
(b) It has budgetary capacity, often accompanied by its own sources of revenue.
(c) It has a wide range of functions to perform (usually contained in a list or schedule).
(d) It can appoint, recruit, train and discipline its own staff, or obtain them on secondment.
(e) It has a decision making body (appointed or elected).

Devolved governments often constitute local autonomous governments as was the case with the Regional Government of Southern Sudan (1972-1983) or quasi-Federal systems as was the case under the Interim Constitution of Southern Sudan, 2005 (ICSS) as well as the Transitional Constitution of 2011. They were not complete federations because the central government used to have considerable control over their affairs of the lower levels of government and could intervene by making changes through dismissals, appointments and dissolutions.

What is confederation?

Decentralization can also be by way of confederation. Confederation is the union of independent states whereby the legislative and administrative authority of the Central Government is subordinate to that of the confederal states. The European Union is a typical example of a confederation.

We have never practiced a confederal system of administration so far. It might happen if the North and South would like to come together once again in some form of a loose union.

What is unitary government with decentralized system of administration?

One other type of decentralization is the unitary government with a devolved system of administration such as the one in Uganda. This model of decentralization is where the Central Government is legislatively supreme while the district governments for that matter are subordinate. There are only two levels of government here.

One could say that Uganda is a small country with weak economy and might be better suited for this system of government.

Why Federalism for South Sudan?

The case for federalism rests on several factors as argued before and including the following:
(i) democracy;
(ii) good governance (effectiveness, responsiveness, accountability);
(iii) conflict management (gives each group autonomy to promote its own interests and values, it avoids tyranny of the majority, and permits country wide majority to rule on common issues, with local majorities to rule on issues closer to own interest).
(iv) Federalism Promotes accommodation in divided societies. In the sense that Federalism as a political idea has become increasingly important as a way of peacefully reconciling unity and diversity within political systems.
(v) Diversity based on language, religion, ethnicity, nationality, culture and race (not gender, class, states, occupation etc.).
Unity can be grounded in diversity and diversity can give rise to unity; there is no necessary contradiction between unity and diversity.

There is need to build dynamic, efficient and modern state (e.g. India, USA). In such context, federal solutions have been an increasingly wide spread appeal because:
(a) they enable shared governance in a large political unit for certain common purposes; and
(b) They provide autonomous self-governance for the various diverse groups in smaller constituent units of government directly and democratically responsible for their own electorates.

What are the advantages of Federalism over decentralization?

Decentralized or federal governments have very many characteristics in common such two orders of government, written constitutions with allocation of powers, bicameral legislatures etc. however, the key important differences are as follows:
1. A Federation has a written constitution some parts of which cannot be amended by the Federal Government alone. Major amendments affecting the constituent units require substantial consent from them as well as from the Central government. Constitutions of decentralized government can easily be amended at the will of the central government. Thus the constitution can be very flexible and subject to abuse.
2. A federal constitution formally allocates legislative and fiscal powers to the two orders of government ensuring some genuine autonomy for each other. There is no genuine autonomy in decentralized government. The central government can interfere at any time in the affairs of the lower governments.
3. Usually some special arrangements, notably the Upper houses are found in federations for the representation of constituent units in key central institutions to provide for regional input in central decision making. The prevalence of such upper houses in federations is associated with the idea that both the population and the constituent units are part of what makes a federation and both dimensions need to be reflected in central institutions. Decentralized governments are not often characterized by having upper houses.
4. In a federation, there at least two orders of government, one for the whole country and the other for the regions or states. Each government has a direct electoral relationship with its citizens. A decentralized government can have only one level of government which is the only one related to the citizens.

Formation of Federations:

Some important combination of factors (or historical forces) leads to the adoption or creation of federations such as” pressure for political integration or regional autonomy”. However, the political leaders must choose what form of federation their country must form as a way of realizing and reconciling various goals. There are three possible forms:
(i) For U.S.A., Switzerland and Australia the pressure was for separate units to come together (that is to aggregate) which could also be referred to as political integration.
(ii) For Belgium, Germany, Nigeria and Spain the pressure was for previous unitary governments to become autonomous (through devolution of powers).
(iii) For Canada and India it was a combination of the two pressures (to aggregate and to devolve).
In the case of the Republic of South Sudan the pressure is from the various ethnic groups especially the minority groups to become autonomous e.g. the Murle, Anyuak, Kechipo, ie, Moru, wira and the Fertit of Baher El Ghazal.

Characteristics:

The names of the lower levels of governments in the various Federations vary from one country to another and the numbers of the constituent units are not fixed. As shown below they vary from country to country depending n the local circumstances in that particular country.

Constituent units

The constituent units in federations bear different names all over the world:
(i) They are called “States” in Australia, Belau, Brazil, Ethiopia, India, Malaysia, Mexico, Macronasia, Nigeria, U.S.A. and Venezuela.
(ii) They are called “provinces” in Argentina, Canada, Pakistan and South Africa.
(iii) They are called “Cantons” in Switzerland.
(iv) They are called “Autonomous Communities” in Spain.
(v) They are called “regions, Communities” in Belgium.
(vi) They are called “Subjects” in Russia.
(vii) They are called “Island” in Comoros, St. Kitts and Nevis.
(viii) They are called “emirates” in United Arab Emirates.
(ix) They are called “Entities” in Bosnia & Herzegovina.
Number of constituent units.

As stated earlier the number of constituent units also differs from one country to another. Some Examples are quoted below:
Country Number of units Population
India 28 1,028.6 Million
Ethiopia 9 67.3 million
Switzerland 26 9.0 million
Canada 4 30.0 million
U.S.A. 50 281.4 Million
Germany 16 82.4 million

Furthermore the sizes and populations of the various units in some federations are demonstrated below:
Size and wealth of constituent units.
Size Population
Largest are:
(i) Utter Pradesh
In India 166 million
(ii) Punjab in Pakistan 80 million
(iii)California in U.S.A. 34 million

Smallest are:
(i) Belau 200 inhabitants
(ii) Kosrue in Macronesia
(iii) Neviss in St. Kitts & Nevis 8,000 people
(iv) Appenzell in Switzerland 15,000 people.

Reasons for failure of federations:
Earlier federations have failed for several reasons which include:
1. Little experience of democracy.
2. Little history as shared country.
3. Weak sense of common identity.
4. Extreme imbalance of constituent units.
5. Fatally weak central governments i.e. regional or local identities were stronger than any larger national identity and were seen as inconsistent with or opposed to such an identity (e.g. Singapore leaving Malaysia

Conclusion.

We have failed under both unitary and decentralized governments in Sudan or South Sudan. We are only left with two other forms of government to try which are federation and confederation. Our people including our leaders must choose one of the remaining two.

The nearest option should therefore be federation. As stated before we had experienced successful period of democracy during the Regional Government (1972-1983). We have long history of a shared country (Southern Sudan) and a sense of common identity (South Sudanese).

Failure is most unlikely under good leadership.

Hon. Dr. Richard K. Mulla
MP (independent)
National Legislative Assembly
Juba.

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Who is Honest among Voices Calling for Federal South Sudan?

By Mapuor Malual Manguen

The clamour to restructure governance system in South Sudan on federal basis seems to be gaining momentum as peace talks between rival South Sudanese groups resumed in Addis Ababa, Ethiopia. In past few weeks, we have seen or heard politicians calling for new paradigm shift in governance system of the country where many claim federal republic is the best political approach to address questions of tribalism, corruption, mismanagement of proceeds from national resources and insecurity in South Sudan.

Apparently, among vocal voices calling for federalism in South Sudan are people of Equatoria region. The Governor of Central Equatoria state, Clement Wani Konga was quoted Thursday, 5 June, that “Equatoria stands for federalism and no one can sit on it”. Governor Konga made the remark at Nyakouron Cultural Centre, Juba in a meeting he called to brief the civil servants of Central Equatoria state about state government’s position in support of a federal system of governance during which thousands of civil servants attended.

The leader of biggest official opposition party, the Sudan peoples’ Liberation Movement for Democratic Change (SPLM-DC) Dr. Lam Akol Ajawin also joined calls supporting a federal system for the new country. Dr. Akol argued that his party in the 2010 at an All Southern Sudanese Political Parties Conference circulated a paper on the preference of parliamentary federal system of governance in the country.

The current renewed debate on federalism came to light after the rebel group under the leadership of former vice president, Riek Machar, demanded at the Addis Ababa peace talks that South Sudan should be restructured based on a federal system in order to avoid the abuse of power and misuse of wealth by the centre. Machar wants breaking up of South Sudan into federal regions with greater autonomy but which will contribute taxes to the central government.

While addressing the country’s national parliament on Monday, the president of South Sudan, Salva Kiir Mayardit criticized the demand for a federal system by the rebel leader Riek Machar, saying this was a ploy to divide the “internal front” and that citizens be allowed to decide on the matter. The President was alluding to conduct of referendum where all South Sudanese electorates can decide themselves on whether or not the country should go for federalism.

Now that all major stakeholders are calling for federal establishment to rein in current madness in the country, the question is who is honest among voices calling for federal South Sudan? Critically speaking, the recent history of South Sudanese communities as citizens of this new republic is about tribalism, land grabbing, hatred, cattle rustling, corruption and the claim of tribe X dominating tribes A B C D and tribe Y is so and so. Moreover, any wrong doings done by Government officials are always blame on Dinka ethnic group where the President comes from. This is because people don’t see the ruling elite as SPLM party but as Dinka establishment. The essence of this situation is that the people of this country are so localized, segregating and would see everything on lenses of tribe. That is why a mere call for federalism is seen as fishy. The nationalism and patrioticism have been given up and replaced with regionalism and tribalism by many South Sudanese people. People consider every issue on tribal outlook.

For Equatorians, land grabbing and corruption are associated with people from Bahr el Ghazal and Upper Nile regions. Equatorians myopically see federal South Sudan as only option that will sub-guard their interests in national affairs because it would bolster their control of their lands and free them from corruption which is not their culture! This is a wild illusion though.

For Riek Machar and his group, federal South Sudan would minimize authoritarian powers of current centralized system. Moreover, people from Upper Nile region – oil producing region in the country – will apparently control oil proceeds and contribute peanut to central government. In theory, the oil region will call the shot on future use of oil money where South Sudan government relies on its 98 percent budget annually.

To the people of Bahr el Ghazal who are more reluctant about what their compatriots mean by demanding federalism at the moment, they see this federalism as conspiracy tool to target their region. Many see it as a ploy to create not federalism per se but confederation in the country in which the young nation might be balkanized further into minute autonomous states. And this shall be another story altogether already.

My take on federalism

Our problem in South Sudan is not about type of governance system; it is about weak institutions and lack of political will to develop and nurture those institutions we already have to a viable functioning level. Currently, South Sudan has a decentralized system of government run from the capital Juba and 10 states with limited powers. If there is political will, aspects of good governance such as rule of law, freedom of speech, fighting corruption, provision of basic services to people, provision of security name it can be achieved in a centralized system. Even if South Sudan adopts federalism today minus political will from our leaders, the new political dispensation shall yet again become a mirage and the country will definitely continue in the path of bleeding and on blame game as usual on tribe X, Y and Z.

The author is journalist, blogger and political commentator based in Juba. Reached at mapuormalual@yahoo.com or mapuormalual.wordpress.com

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Proposed Federal system for future South Sudan: Let us serialize it–Part 1

By Sindani Sebit

Introduction

Since the events of 15-16 December 2013 in Juba and subsequent outbreak of fighting in South Sudan, South Sudanese have been grappling with whether these sad events could be the blessing in disguise for envisioning the future of South Sudan in which all people live in peace and harmony, enjoying the fruits of a prosperous nation. The gruesome killings in Juba and the fierce fighting that has claimed thousands of lives, has alarmed the world and particularly IGAD and Troika countries that had worked tirelessly to bring about the independence of South Sudan from Sudan in 2011. Now there are staggering peace talks going on in Addis Ababa aimed at peacefully resolving the needless conflict in South Sudan. While the negotiators are fixed on cobbling an interim government, which could bring both sides of the conflict to share power, the opposition has proposed to first discuss the fundamental root causes of the problem in South Sudan and agree on how to deal with them and also agree on the future governance system for the country.

The governance system that has been proposed by the opposition is a federal system as opposed to the current perverse quasi-decentralized system in Juba. Although the call for federalism in South Sudan is being opposed by Kiir and his immediate supporters, the call is rapidly gaining support from many sectors of South Sudanese society including the governments of Central and Western Equatoria and people of Greater Upper Nile. Most South Sudanese in the Diaspora have already lined up behind the call for federalism in South Sudan.

As the call for federalism in South Sudan is becoming louder, wider and irresistible, there is urgent need to bring South Sudanese with speed to quickly and completely understand the federal system that is being advocated for. While Some South Sudanese have confused the current so-called decentralization system in South Sudan to Federalism, it must be stated on the onset that this comparison is either an attempt to lure South Sudanese to believing wrongly that they have a federal system or lack of understanding what really a federal system entails. This is simply because the Transitional Constitution of South Sudan has not only failed to name the system as federal system but actually concentrated the governance, economic and security function in the centre with the ten states being relegated to be subservient to the central government. At the central level, the central institutions such as the Parliament, Judiciary and security apparatus are subjugated under the presidency, making the president the sole dictator in the country. South Sudanese are all aware of the countless decrees issued by the president, including those used to dismiss elected governors and other constitutional post holders. This is not federalism but centralized system in disguise. In addition, while the states are supposed to be service delivery organs that should bring power and resources nearer or closer to the people, the central government continues to retain 80% of the resources for the lavish life styles of an emerging elite or embezzled by individuals, creating a small clique of “haves”, in Juba while majority of the people of South Sudan wallow in abject poverty. This is not the federalism that South Sudan needs. The Transitional Constitution of South Sudan has created a dictatorial monster who is wielding his constitutional powers to disregard the bill of rights in the constitution; thus committing grave human rights atrocities at will. These powers have made South Sudanese judiciary impotent, the parliament marooned and civil society powerless. The president has overstepped the constitution and went ahead to create his own parallel military force and security apparatus that has terrorized the citizenry in the country at will.

Therefore, the proposed federal system that is being advocated for by the majority of South Sudanese is the intended real federal system of governance that is implemented in many of the federated countries such as UK, USA, Canada, Germany, India, South Africa, etc. In this vein, the objective of serialization of the proposed federal system in South Sudan is to create awareness among South Sudanese and educate them on the basic principles of federalism and the implementation strategies so that South Sudanese can deliberate on the system on the same page and clearly understand whether such as system can solve the chronic problems which have bedeviled South Sudan. The fear of “doubting Thomas” and those who fear change must be allayed so that they can embrace this change without reservation.

South Sudan is a diverse country that is multi-ethnic, multi-lingual, multi-cultural and multi-religious. The country has varied geographical conditions and awash with various natural and human resources spread all over the states. The political landscape is darted with various beliefs and conceptions. Therefore, such a country needs a system that can recognize and accommodate all these level of diversities with the aim of uniting the people, while harnessing these diversities for their effective self governance and rapid development. The current system in South Sudan has completely failed to respond to the diversity in South Sudan; instead it tried to subjugate the people into a system dictated by the powers that be. This is what was and still continues to happen in Sudan. The deliberate refusal by the then ‘united’ Sudan to demands of South Sudanese for federalism in the 1947 Juba Conference, in 1955 Torit Conference and in the 1965 Khartoum Conference, created all the wars in Sudan that led to the disintegration of Sudan. There is also possibility that the remaining Sudan may further disintegrate if the government in Khartoum continues with its militaristic attitude against the rebels in Sudan.

Realizing the fact that centralization is not the answer to political and socioeconomic problems in diverse societies such as South Sudan, and indeed has created conducive atmosphere for a failed South Sudan state, a system that recognizes diversity as strength, while utilizing the values of diversity for national cohesion and socio-economic development, is crucial. As a result, the current disagreements in South Sudan serve as the best catalyst for South Sudanese to look back and admit that they should start now from different perspective, by accepting their unique differences and perceptions for building a strong future South Sudan. No governance system can do this other than federalism.

Therefore, this document intends to outline the following in regards to federal system proposed for South Sudan. The proposals illustrated here may not be exhaustive because, the authors do not claim to have the monopoly of all facts and strategies about federalism; after all, the system proposed must be adaptable, adopted to South Sudan context and attempts to solve all or nearly all the pricking problems in the country to the satisfaction of the majority of its people. The main points to look at here are:

1. Definition of Federalism
2. Advantages of a federal system
3. Federal Government

• Declaration of the country
• Form of governance including the sovereignty of the country
• Functions of the Federal Government
• Federal Legislature, including its independence
• Federal Executive, including the Attorney General’s Office
• Judiciary, including the Federal and State Courts
• Federal Law Enforcement Agencies. These include Federal Intelligence Service, Immigration and Custom Services (or Revenue Authority), drug enforcement and illegal trafficking services and special security service

4. Federal states

• Objectives, principles
• Governing structures
• Powers and functions of the state

5. Commissions and independent offices

A)   Commissions

• Federal Human Right and Equality Commission
• Independent Elections/Electoral Commission
• Public Service Commission
• Parliamentary Service Commission
• Judiciary Service Commission
• Revenue allocation and distribution commission
• Salary review and allocation commission

B)   Independent offices

• Auditor General’s office
• Controller of accounts office

The reform of the army will be tackle separately while the police, wildlife and other security agents will be mentioned in the roles assigned to the states. Therefore, this introduction will limit itself to the definition of federalism and its potential advantage to South Sudan. 

Definition of Federalism

From the Concise Encyclopedia, federalism is defined as, “political system that binds a group of states into a larger, non-centralized, superior state while allowing them to maintain their own political identities.” Does South Sudan have states to fit in this definition? Indeed South Sudan has states. A state is defined as “a territory considered as an organized political community under one government”. Since 1955 South Sudan has always been organized into Upper Nile, Bahr el Ghazel and Equatoria. These three territories are now further divided and reorganized into 10 states. These ten states or more can be bound into a larger, non-centralized superior state, while allowing them to maintain their political identities. The essence of the states maintaining their political identity is crucial in the case of South Sudan, so that they can be able to forge their developmental agenda according to their priorities and resources available to each. Secondly, the ten states in South Sudan currently have their own political beliefs and perceptions that can be nurtured and propagated within the boundaries of the state, while the Federal Government concentrates on crucial matters that face the larger union.

However, successful federal systems must have common characteristics and principles. These include constitution or the basic law stipulating the distribution of powers; diffusion of power among the constituent elements, which should be substantially self-sustaining; and territorial divisions to ensure neutrality and equality in the representation of various groups and interests. Successful federal systems should also have a sense of common nationality and direct lines of communication between the citizens and all governments that serve them. As it stands now, South Sudan has no common characteristics and principles. What exists now in South Sudan is degraded into Dinka, Nuer and the common “tribe” in Equatoria called Equatorians. These are tribal characteristics that are not bound by common principles, but by tribal interests to rule and plunder the resources of the country. Lack of common principles has precipitated corruption, land grabbing, and lack of respect for individual property, as some of these actions are not considered as crimes by some of the communities in South Sudan.

Constitution that devolves powers to the people empowers the people and enables them to share in the governance of the country. This brings sense of belonging and ownership, equal participation and satisfaction. These contribute to the building and development of the country. In addition, the states must be empowered to raise their own financial resources from the resources in the states. This makes them independent and self sustaining. On the other hand, the federal government should also ensure that more resources go to the states instead of the current practice where the central government retains 80% of the resources making the states non-viable in terms of service delivery.

A successful nation should always instill to its citizens a sense of common nationality based on equality but not on perceived principles that other communities are more national than others or based on contribution to liberation as has been in the practice in South Sudan that some people arrogate themselves as liberators while others are liberated. Communication among citizens cannot be effective unless the government is taken close to them in form of devolved government. This is important because it accelerates rapid development and advancement. This will also ensure that any change made or proposed has been accepted or sanctioned by the people. These are, therefore, the ills that federal system has to address so that the independent states agree to federate with common principles and sense of common nationality.

Advantage federalism to the people of South Sudan

The federalism will contribute positively to the following:

1. Recognizes all the national diversities while it strives for strengthening national unity based on common principles and equality
2. Devolves powers to the people thus making them to participate and share in the planning and development of states. This creates a sense of common understanding, equal participation and ownership and makes the citizens responsible to their own affairs. The dispersal of power to the states and communities is generally a protection against tyranny. This leads to large extent thriving of pluralism.
3. Helps to manage conflicts by permitting states and communities to pursue their own policies. This reduces the pressure that would have built up in the center like currently happening in South Sudan
4. Improves efficiency as governing of the nation from the center creates inefficiency and ineffectiveness
5. Enables citizens to decide on how they can be governed by ensuring that the citizens always have to sanction or be consulted on the decisions being taken by their leaders. This also removes from the leaders the dictatorial tendencies that they may have, as the people have the rights to remove or reprimand them
6. Enables states to become independent and self-sustaining. They will determine and plan their development agenda according to their objectives, priorities and available resources
7. Ensure that federal resources are effectively shared between the federal government and states according to the functions of the two levels of government, as stipulated in the constitution with 80% of the resources going to the states. This principle of resource sharing is intended to spur quick development of the states
8. End the culture of categorization or profiling citizens according to tribe or contribution in the society
9. By making the states self sustaining and ensuring that more resources are channeled to the state, creates conducive atmosphere for equal development instead of wasting resources in the federal capital
10. Enables states not only to control their resources but also to use them for betterment or development of the state
11. Ensure that the relationship between the citizenry is mutual based on equality and respect for one another
12. By empowering the states to have their own security enforcement agencies and courts up to court of appeal will ensure that justice to be carried out in an atmosphere of complete understanding of cultural diversities and institution of justice and not favouritism, or merely on tribal inclination as the case is now in many parts of South Sudan. This will create understanding and harmony among the citizens and law enforcement agencies and the Judiciary
13. By ensuring equal development in states, it will reduce internal migration, dispute over land grabbing, internal displacement and overconcentration in few urban or rural areas that have services

Disadvantages of federalism

As system federalism has its own drawback, though these may however not outweigh the significance and numerous benefits the system renders to the people. Some of the challenges associated with federalism include:

1. It may allow special interest groups to protect their privileges. Some states may use state rights and laws to avoid federal regulations that guarantee civil rights such as free movement and settlement of people in the country. However, in such situations the federal law should supersede the state laws.
2. It may frustrate national policy because of differences in priority setting. However, this has been taken care of by the revenue allocation commission which ensures that resources are effectively distributed and utilized according to the overall priority in the country
3. It increases the cost of governance generally and can also cause uneven distribution of these costs. Some states may spend more than twice as much per capita as other states on certain priorities. This can also be dealt with by the salary review commission which ensures that the cost of government is within the overall income of the country.
4. It creates disadvantages in the poorer states and communities. However, the task of Revenue Allocation Commission is to ensure that this should not happened by ensuring that national resources are distributed according population and level of development between the states and within the states.

In conclusion, South Sudan has never had the chance except now to look back and overhaul its autocratic constitution so as to introduce governance system that will not only accelerate development, but that will create united democratic South Sudan based on mutual agreement, citizen participation, state resource control and self-sustenance and respect for one another and for national resources and private property. Part 2 of this series will focus on the proposed federal structures that include the Legislature, Executive and Federal Judiciary. Keep reading and also send in your suggestions. All are welcome but please we need positive criticisms not reactions arising from frustrations.

Sindani Sebit

Vosskaro2005@yahoo.com

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Federalism: Three conditions for a Viable federalism in South Sudan

By David Aoloch Bion

Federal system of governance is one of the systems of governance practice around the world. The good example is the United States. The US is the democratic federation.

Recently, in South Sudan, something tragic happened on the December 15, 2013. Some people called it a “coup’’, some people called it a “force out of Juba Proper of some individuals”. Whatever the version of the tragedy is not the matter here. This double meaning event of December 15 has ended up with call for federal system of governance in the country as part of solution to wider problem.

There is no problem or danger of South Sudan becomes the federal state. Federal system of governance like any type of governance has it blessings and curses.

One blessing of federalism is the catalyst for development because every state will take fullest responsibility for her own affairs

One curse of federalism is, it will be used as bonanza for tribalism and regionalism. For example, people from one tribe or region must not or may not move and settle in another tribe land or state. Some 2 to 3 years ago, one pastoralist community from Jonglei State was forcefully repatriated from Western Equatoria State, because, either their cows were destroying the crops or the cattle keepers themselves were thieves, stealing the honey in the wooden cylinders on the boughs of trees or they were just unwanted or unwelcomed because they were from another state

Federalism is good type of governance as many South Sudanese are calling for it. Greater Equatoria called for Federalism 2 or 3 years ago. Now, the Rebels from Greater Upper Nile are calling for Federalism too. It is only the Greater Bahr el Ghazal that never speaks for Federalism. If the Government calls a referendum now, federalism will win.

We should make a difference between the pure federalism and the tribal federalism. Pure federalism is an engine for development, where a state shall not wait for decision to construct a road from town A to town B from Central Government in Juba. Tribal federalism is petrol for segregation, where a tribe or region blessed with resources will stay as island from the rest. For example, Toposa tribe or Kapoeta County, which is blessed with gold, will close her border, not to allow the Pari tribe who has no gold to come and work in the gold mine. When they are asked “why they don’t allow other people to come work in the goldmine?’’ They replied “who have no land? After all, the Government is taxing us highly. We are contributing too much money to national government. Don’t disturb us.”

Thus, how do we eliminate tribal federalism and embrace pure federalism? We can embrace pure federalism by allowing 3 conditions. These 3 conditions will be enshrined in the constitution

1      National Resource, there must be national resources, the resources in the country must be defined properly, those that can be owned by the National Government and those that can be owned by state government. Some resources like oil should be national resource, because of two reasons A. Oil spill, this can’t be managed by the state if there is oil spill. B. Oil is drilled by International companies and if a state a contract them. It will infringe the national sovereignty

2      Two political parties, there must be only two political parties in country, if South Sudan establishes federalism. She must have two political parties like the USA, US has two political parties, the Democratic Party and the Republican Party.

3      Citizenship after 5 years. Every South Sudanese national who stay in a given state for period of 5 years becomes the citizen of that state. He/she can contest for a political position there, be an MP at state or national levels.

These 3 conditions should be a pre conditions for pure federalism but if we want tribal federalism, let skip them altogether.

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NEED FOR CRITICAL THINKING ON FEDERAL SYSTEM IN SOUTH SUDAN

BY KAMZEE AWUOL DE-YEN

Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term “federalism” is also used to describe a system of government in which sovereign is constitutionally divided between a central governing authority and constituent political units (such as states or provinces). Federalism is a system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments, creating what is often called a federation.

For matters not directly dealt with in the constitution, the federal government retains residual powers; however, conflict between the two levels of government, relating to which level has legislative jurisdiction over various matters, can been a longstanding and evolving issue. Areas of contest include legislation with respect to regulation of the economy, taxation, and natural resources. In other word it is a political movement to weaken the central government

Federalism philosophy
The meaning of federalism, as a political movement, and of what constitutes a ‘federalist’, varies with country and historical context, in the United States and Australia advocacy for the formation of strong central government. Similarly, in European Union politics, federalists mostly seek greater EU integration.

USA
Federalism in the United States is the evolving relationship between state governments and the federal government of the United States. American government has evolved from a system of dual federalism to one of associative federalism. USA is the best country which had successful achieved state federalism because of her community policies in which people look at themselves as members of community rather than on clans and tribal bases. With much attention focused on democracy and freedom to live and work anywhere in any state of USA

Kenya
Kenya has a national problem because of associating politics with regions and many other forms of administrative ladder such as provinces in those years and currently on counties, judging individual and politicians based on their regional origin had been a fundamental core of political stillness in Kenya

Nigeria
Federalism is being practiced in Nigeria in form of states, but due to religious, culturally differences and thirst for highest system of federalism the nation came to realize divisions on regional and geographically locations in form of Southern and Northern Nigeria which is currently the cause of political crisis in the country.

South Sudan
in South Sudan, the country is divided into 10 states which is suppose to an equivalent to that of USA on administrative level, though the former form of federalism inherited from Old Sudan exist. in a recent years regional conferences were held spearheaded by Equatoria, calling for regionalism with cool eyes on states federal system which I look at as disastrous because it will put South Sudan into three different zonal sphere of livings resulting to notions of Islanders with politically, socially and economically eagle eying on regions than at state and national levels.

An overview of its economic, social and political impacts

Economically: With Regional federalism a region will benefit directly from their area available resources with only certain percentage to the national government; this system will give much of the clustered resources to the area where the resources are found, and on the other side of the coin a poor locality without resources must to struggle to survive on the little they have hence creating a national economic gap on locality developments leading to poor economic relationship among the citizens resulting to economic hatred and national economic imbalances therefore, creating rooms for national economic stagnation.

Socially: Favoring regional federalism will boost Communal and geographically love and socialization over the national love and cohesiveness, individuals will be more compress to their social backgrounds hence opening more space for regional/state socialization over national patriotism; with federalism in place much loyalty will be given to the immediate government than to the national government, this might create social arrays like what is happening in Nigeria and Somalia

Politically: Federalism if coined into regionalism will create opportunism of national policy: Here the country does not have a single policy on issues; instead, it has many regional and states policies, which often leads to confusion  and lack of accountability: The overlap of the boundaries among national and state governments makes it tricky to assign blame for failed policies. Politic become regional rather than a national one by creating more political spaces based on regional favoritism where politicians from a region will be congested on regional political band wagon of political prostitution. As per our example, one of the three regions of Upper Nile, Bhar el Ghazal and Equatoria will create political courtship with one of the other two regions making one region politically deserted, isolated and vulnerable in term of national representation. This opportunistic planning and quick-dash courtship will dump a lump of citizenship, pool of unity and patriotism into the deepest pit of confusion and hatred

CUTTING THE TRAP

Trapping a mouse while still in the hole, will not only makes the trapper and the trap foolish and useless but will prove to the mouse the weaknesses of its enemy, currently as a nation we had problems of Abyei, Panthou,Elim Triangles, Moyo and many internationally borders which are not settle with the neighbors and dividing the country into smaller mini-countries will not only be an advantage to those eying some parts of South Sudan but a step to be regretted by everyone.

For better understanding of federalism one has to critically define what is mean by state governments in South Sudan before demanding for another federal system unless the word federal is wrongly defined, politely and humbly what we need at our level as South Sudanese is constitutional consideration of the existing state otherwise if you still doubt that we had federalism system in South Sudan than don’t be surprised one day if your wife ask you for her own FEDERALISM

LONG LIVE SOUTH SUDAN AND WOE TO THOSE WHO WANT TO SCATTER US LIKE SIMSIM SEEDS

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Federal system: Let us serialize it Part 2

Proposed Federal system for future South Sudan: Let us serialize it

 Part 2

By Sindani Sebit

The second part of these series will mainly focus on the state and legislation at federal level. This includes the declaration of the country, sovereignty of South Sudan, the federal structures that form the government of the Federal Republic of South Sudan. This means that the Federal government is composed of the Executive, the Legislature, the Judiciary and the independent Commissions and offices. These are independent of each other. This part also includes the form of Federal Government. Two proposals are made here which include the Presidential and Parliamentary systems of governance. The basic idea is to enable the people of South Sudan examine the advantages and disadvantages of each system because they have to decide on which one to choose with a full knowledge of what they are choosing. The last part of the article looks at the function or the role of the Federal Government as opposed to the role of the state governments which shall be described in later parts of this serialization and the legislature at the federal level. Two houses of parliament are proposed. These include the Federal Assembly which will mainly be responsible for Federal legislation and the Senate that will be tasked with oversight role on the state and local authorities. It is hoped that this serialization will enable everyone understand the system being proposed and feed us back with constructive suggestions.

Declaration of the country

South Sudan shall be a federal state that shall be a multi-party democratic state consisting of at least 17 autonomous states. In order to get the 17 states, it is proposed that the following current states will be divided into 2 states. They are; Upper Nile, Jonglei, Eastern Equatoria, Central Equatoria, Western Equatoria, Northern Bahr el Ghazal and Lakes. Bentui, Northern Bahr el ghazal and Warrap states will remain as they are now. The proposed division of the 7 states is based on size of the state and populations involved. The aim is to create manageable, viable and self sustaining entities.

South Sudan will have both Federal and state governments. These two levels of government shall be distinct and interdependent but mutually related. They will conduct their mutual relations on the basis of consultation and cooperation.

Sovereignty of South Sudan

Power in the Federal Republic of South Sudan belongs to the people. The people exercise this power either directly in referendum or through their democratically elected representatives. The People delegate their powers to state organs such as:

• Parliament which includes Federal Assembly and Senate and State assemblies
• Federal Executive and executive structures including state executive
• Judiciary and independent tribunals

Therefore, the Government of federal Republic of South Sudan shall be composed of the following three organs of the government. They are:

1. The executive.  This will be headed by the President or Prime Minister (whichever form of government the people will agree on)
2. The Parliament headed by the speaker of the Parliament
3. The Judiciary to be headed by the Chief Justice

The three organs of government shall be independent of one another and act as checks and balances on each other. The independence of these organs shall be enshrined in the constitution and guaranteed by tenure of office and separate funding as shall be described below.

See below the graphic representation of the Federal and state governments. In addition, there are independent commissions. They are not subjected to the executive, parliament or judiciary though they may serve some of these organs such as the parliamentary service commission and judicial services commissions. These two commissions are actually meant to strengthen the independence of both the parliament and the Judiciary as will be seen later in sections dealing with independent commissions.

In the graph, you will also notice clear lines of responsibility. For instance, the Parliament and Judiciary are not responsive to the executive and for that matter the President or Prime Minister. The Parliament will be headed by the speakers of both houses of Parliament and the Judiciary will be headed by the Chief Justice. The only legal advisor to the executive will be the Attorney General. Therefore, the Attorney General shall be a member of the cabinet but not the speakers of the two houses of parliament and the Chief justice.

Proposed Federal Government structures for South Sudan

Federal Level              Federal Government 

Executive                                Legislature                             Judiciary                Independent Coms and Offices

 

Cabinet                                                      F. Parliament                       F. Supreme Court                                H. Right Com.

P. Serv Com.

President (Or                       F. Senate                                 F. Court of Appeal                               Parl. Serv. Com.

Prime Minister)

Jud. Serv. Com

Ministers

Re. Alloc. Com.

1. G Office

Sal. Rev. Com

OfF. Chief Persecutor                                                                                                                                   Ind. Elec. Com

Aud. General

 

Cont. Accounts

State Level

State Government

Executive                                Legislature                             Judiciary

Governor                                S. Parliament                       High Court

Ministers                                                                                      Magistrates

County Administration                   County Councils                                   County Courts

Payam Administration                    Payam councils                                    Paramount Chiefs

Boma Administration                      Boma committees           Local Chiefs

Form of Federal government

The form of the Federal government shall either be Presidential or parliamentary system. This proposal is made for the stakeholders in South Sudan to decide because the two systems are different and have their advantages and disadvantages.

Presidential Federal system

In this system of governance the president is the head of government. The president is directly elected by the people. The advantages of the presidential system are:

• People participate in “electing” their president directly
• There is likelihood that there will be checks and balances because the executive is independent of the parliament and Judiciary particularly when the president has no majority in parliament
• The president is the icon of the country and has the powers to veto any resolution of parliament when he/she deems it not to be in the interest of the country
• Stability is guaranteed in the presidential system as the president has fixed term in office

The presidential system is however bedeviled by its setbacks. These include:

• In tribalized country like South Sudan, tribal tyranny of numbers can always ensure that large tribes or collusion of large tribes can propagate or dominate the presidency because they will always vote for their own tribal candidate. In fact the American constitution recognized this fact right from the beginning. This is precisely why the president of America, which is the only federal state with presidential system, is elected by Electoral College. Each state is allocated a number of Electoral College and if a candidate gets simple majority in each state he/she takes all the number of the Electoral College in that state. This has worked against the tyranny of numbers.
• The exercise of Veto powers by the president can always work against the aspiration of the people because the president can always veto a resolution not on the interest of the people but on the interest of his/her party
• The presidential system is always expensive because the people have to elect the president and parliamentarians while in the parliamentary system it is only the parliamentarians that have to be elected
• The President usually does not regularly come to the parliament to account for his/her decisions thus making the president to act at liberty without any regard to the feeling of parliament
• In the presidential system, it is rather difficult to change the president easily making some of them become dictators as the case is now in South Sudan
• The presidential system tends to focus electoral campaigns on personalities rather than platforms and programs because the focus is on one person (candidate) and not the party.

Parliamentary system

In a parliamentary system, the party with the highest number of MPs or commends a collusion with the highest number of MPs in the assembly shall be the governing party. Therefore the Government is headed by a Prime Minister elected by federal Assembly among the party with highest number of MPs or collusion with highest number of MPs. Instead a Ceremonial President shall be elected by consensus by the members of both houses of the federal parliament. The role of such President will be to preside over public occasions such as opening of the parliament, commemoration of martyrs and independence days and receiving and bidding byes to ambassadors.

The main advantages of the parliamentary system are:

• It eliminates the concept and practice of tyranny of numbers because the people will not elect the Prime Minister directly but the members of Parliament who elect the Prime Minister. This means if any person wants to become a Prime Minister he/she should have a party that enjoys country wide support.
• Parliamentary systems are much more efficient, accountable, and less prone to corruption and the quality of the leader is better. This is because the prime Minister is regularly subjected to parliamentary sessions where the Prime Minister and the entire cabinet is called to account for their decisions. This keeps them on their toes and ensures that it is harder for them to do things in secrete or under the table. In addition, usually parties choose their best leaders as party leaders increasing the chance that the country gets the best leader
• Parliamentary system allows the leader to be easily removed once he/she looses parliamentary majority compared to presidential system that the country has to undergo the arduous path of impeachment which rarely succeeds
• In parliamentary system, there is fusion between the executive and the legislature. This eliminates political gridlock and allows the people’s representative to engage the executive directly in debates
• The basis of checks and balances in parliamentary system is the shadow cabinet feature which oversees and scrutinize government activities and this makes the government competitive and transparent

However, the parliamentary system has also its short comings and these include the following:

• The government can be unstable because of changes in MP loyalties or collusion parties disagreeing among themselves leading to call for vote of no confidence on the Prime Minister. However, this can always be mitigated with succession close in the constitution which ensures that the party of the Prime Minister is always called upon to select another candidate to complete the term of the ruling party
• Lack of effective parliamentary oversight because the Prime Minister controls parliament and this may lead to laxity from the part of the government
• Democratic participation of the people in directly electing their president is undermined and this may alienate the people from participating directly in the governance

Functions of the Federal government

The federal government proposed in South Sudan should only exercise delegated powers. These include:

• Foreign policy, foreign affairs and international trade
• Army and National security
• Customs and tariffs
• Mineral resources and petroleum
• Value Added Taxes
• Monetary, Currencies and coinage
• Measures and weights
• Transport including Airways, railways and communications at federal level, road traffic, construction of national road trunks, pipelines, navigation, civil aviation, space travel and
• Federal policies on health, education, agriculture, veterinary, tourism, energy and public investment
• Immigration and citizenship
• Relation between religion and federal state
• Federal language
• Courts at level of Federal supreme court and federal court of appeal
• Federal economic policy
• Federal statistics and election
• Intellectual property rights
• Labour standards
• Federal public works
• Disaster management

Legislature

The Federal Republic of South Sudan shall establish two houses of Parliament namely the Federal Assembly and federal Senate. These two houses of Parliament will form their respective functions in accordance with the constitution that will be developed and enacted. Basically the role of Parliament is generally:

• Legislative authority of the country is derived from the people and vested in parliament at all levels
• It must manifest the diversity of the nation
• Represent the will of the people and exercises their sovereignty
• It considers and amends the constitution. However, some amendments many require referendum
• Protects the constitution and promotes democracy
• Sole body for making laws

Role of the federal Assembly

The Federal assembly which will be the highest legislative organ in the federation shall:

1. Be made up of elected representatives from defined constituencies and special groups. The constituencies should not be based on counties but population. Each constituent should have 50,000 to 100,000 people. Number of constituencies should not be more than 210. The speaker of the Federal assembly is an ex officio.
2. Deliberates and resolves issues of concern to the people
3. Enacts legislation on the following:

• Allocation of national revenue between the national government and state governments at a ratio of 20:80 in favour of the states
• Appropriation of funds and expenditures
• Carry out oversight over the national revenue and its expenditure
• Oversees the conduct of the executive
• Approves declaration of war and extension of state of emergency in a country

Role of federal Senate

This will be the second tier of the Federal Government. It will be charged with responsibilities over the federal states and local authorities and shall perform the following:

1. Made up of elected representatives from federal states. Each federal state elects 3 representatives and representative from special group within the federal state to the federal senate regardless of the population of the state. The speaker of the federal senate is an ex officio
2. Represents the federal states and protect their interest
3. Debate and approve the bills concerning the federal states
4. Act as oversight to the federal state officers and local authorities
5. Ensures that federal state officers are recruited and removed in accordance to a specified article in the constitution

General Guidelines (Important summary but not exclusive)

The general guidelines here are mainly focused on membership of both houses, procedures for election, affirmative action for the parliament, exercise of parliamentary powers, privileges and immunities and the role of the parliamentary service commission. The exercise of parliamentary power and privileges is to ensure the independence of Parliament and while the establishment of the Parliamentary Service Commission is to ensure that the parliament is able to government itself and regulate its function according to act of parliament without interference from the executive.

1. Qualification of Candidates
2. Federal Assembly and federal :

• University degree
• Nominated by parties for elections
• Independent candidates must be supported by 2,000 supporters for the Federal Assembly and 1,000 supporters in cases of federal senate during presentation of their papers to the electoral commission.

1. Elections to both houses must be conducted under an independent electoral commission

The role of the electoral commission shall be discussed under the independent commissions

1. Terms of both houses

• Specified in constitution; Suggestion 5 years
• The parliamentary calendar must be independent. This means dates for opening and closure of parliament are predetermined and inserted in the constitution. Therefore, the President or the Prime Minister will not prorogue a parliament at his/her will
• Sitting of both houses can only be extended from these dates under state of war and should not be more than 6 months

1. Promotion of representation of marginalized groups.

• Federal Assembly shall enact law to ensure promotion of rights of such groups such as:
• Women
• Persons with disabilities
• Youth
• Ethnic and other minorities
• Marginalized communities

1. Vacation of office of Member of the Federal Assembly or federal senate

• Among others, member being absent from 6 sittings without written permission from the speaker
• Member resigns from his/her political party
• Member joining another party

1. Recall

• The electorate should have the powers to recall a member of any of the two houses before the end of her/his term
• Conditions and procedure for the recall should be stipulated in the constitution

1. Determination of question of membership in either house. This should be done by high court in case of:

• Validity of election
• Vacancy in the seat of the member of any of the houses

1. Party leaders. Both houses should have:

• Leader of Majority who should come from the party with the highest number of members in the house
• Minority leader who should come from the party with second highest number of members in the house

1. Exercise of Powers

• The Federal Assembly exercises powers through bills that are assented to by the President or Prime Minister
• The Federal Assembly exercise bills that are related to the federal government, the federal Senate exercise bills that relate to oversight over the federal states while the federal state assemblies exercise bills related to state issues in accordance with separation of functions of the government organs

1. Powers, privileges and immunities 

• Parliament (Federal and State) is independent of the executive and judiciary
• Must exercise freedom of speech
• Conducts business in open with participation of the public and media
• Petition of parliament by any citizen or group of citizens must be allowed; parliament must pass a law regarding the public engagement

1. Parliamentary service commission

• Set up with specific number of people
• Responsibility is to:
• Provide services and facilities to parliament
• Set up offices and supervise them
• Prepare budget for the parliament; parliament must have its own budget
• Promote parliamentary democracy
• Work for the welfare of the members

1. Other thing to be mentioned and enshrined in the constitution is conduct of business in the parliament which includes quorum, language, voting, committees of the house, standing orders, location and sitting of the parliament and offices of the parliament

Conclusion

As previously stated, the aim of these series to enable South Sudanese read, discuss and crucially understand the form of governance that the SPLM in opposition is proposing so that the form of government that they believe will create permanent peace and prosperity in the country in agreed upon and established. The country needs progress and peaceful co-existence.

Sindani Sebit

Nairobi; Kenya

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Decentralisation Not Same As Federalism

By Nyadol Nyuon

 Part 1: Decentralisation as outlined in the Transitional Constitution does not equate to a federal system of governance for the Republic of South Sudan.

Introduction This article follows a long line of pieces on federalism in South Sudan. Some argue that the debate is unnecessary because South Sudan already has a form of a federalism enshrined in the Transitional Constitution of the Republic of South Sudan (2011) (the Constitution). Others do not want a federalism at all, arguing that it is not the suitable mechanism to address the current challenges. They protest that federalism – ethnic as seen in Ethiopia or otherwise –will worsen the situation by deepening the divide on current socio-economic and political issues along tribal lines. This article explores wether South Sudan has a federal system guaranteed under the current constitutional design. I concluded that unless the discussion on federalism is concerned with ‘form rather than substance”, the current system of governance, which is  termed ‘a ‘decentralised system’ does not satisfy the basic requirements characterising a federal system.

To claim a federal system, the ten states must exist as political realities – not mere geographical entities with administrations.  Political realities can only be realised when a state has the powers to exercise executive and legislative powers exclusive of the national government.

Separation of state and national powers is the overarching feature in a federal system. Under the current constitutional setting, the separation of powers is a ‘mere puff”, particularly in light of the exercise of certain Presidential powers.

1. Distinguishing a decentralised multi-level system of governance from a federal system of governance.

There is no doubt that the Constitution is at the heart of a decentralised system of governance. The preamble starkly states that: “the people of South Sudan commit to establishing a decentralized democratic multi –party system of governance”. Article 1 (4) provides that South Sudan is governed on the basis of a decentralised democratic system elaborated in Articles 47, 48 and 49 – which outline levels of government in the decentralised system.

The most solemn oath – the oath of the Office of the President – which is a constitutional contract by an elected president to the people of South Sudan: commits the President to “… consolidate the democratic decentralized system of government” (Article 99).  It is difficult to find such a commitment to any concept that permeates the entire Constitution. But, despite all these, can this decentralisation be considered as a form of federation? The claim is difficult to sustain once the Constitution is examined in its entirety and in light of the President’s conduct since the declaration of South Sudan’s independence.

A country can have decentralised multi-level governments and yet not be a federation.  Almost all countries have multiple levels of government. The existence of multiple levels of government generally results in the spread of power away from the centre to local branches of governments – itself a form decentralisation. You can therefore have a decentralised multi-level system of governance and yet not be a federation.

What distinguishes a federal system from other forms of decentralised multi-level governance are the constitutional guarantees of its ‘federal’ character (Hueglin and Fenna 2006).  If one accepts this basic assumption, then we must look to the Constitution to determine whether there are constitutional guarantees displaying the nature akin to a ‘federal character’.

First, when interpreting legal documents, one starts with the words of that document. There is no mention of federalism or Federal system of governance in the Constitution.

However, could the drafters of the Constitution have had in mind a federal constitution nonetheless? If so, why did they incessantly keep mentioning the words “decentralised system of governance’ throughout the Constitution? This question is particularly relevant because federalism, even in the context of South Sudan history, the concept of a federal system of governance is not a newly discovered one or even a new debate.

It is clear therefore that the drafters made a choice. The question is whether it is a choice that should be taken to signify an intention against a federal system of governance in favour of “a decentralised system of governance”; both as meaning different things.

Considering the importance of this matter, it is difficult to be persuaded that the drafters overlooked it, or it was simply an error.

However, after several readings of the Constitution, I cannot escape the feeling that the drafters wanted to serve two masters, the people and the king.

These omissions of the words federalism or a federal system of governance are also important when you read the constitutions of other federal Countries. Those constitutions either make a direct reference in the title of the Constitution or within its texts, that the country is a federation. For example, the Constitution of Nigeria is titled “Constitution of the Federal Republic of Nigeria (1999); the Constitution of the Federal Democratic Republic of Ethiopia (1994); the Constitution of the Federative Republic of Brazil amongst others.

On the other hand, Australia does not make it obvious in the title of the constitution but reference to the federal nature of the Constitution is made apparent in the text, see section 1.

Where direct reference is not made at all in the title of the text of the particular constitution, it tends to be a country with a long history of separate self- governing territories, which come together to form a union. In such cases, the reference to federation or federalism is unnecessary because it forms the working hypothesis or the very basis on which the union is founded.

In conclusion, to suggest that the absence of the word federation is not significant assumes that South Sudan is a federation by default or by error or oversight of the drafters.  That is an unusual argument indeed, particularly when one is dealing with, not just any other legal document, but the supreme law of the land – the constitution.

III.        Separation of Powers in South Sudan

A central feature of federalism is the separation of powers between central and state governments in such a way that each of them cannot encroach upon the power of another. In South Sudan, that distribution of powers should be between the National government in Juba and the ten state authorities.

The distribution of powers is between the legislative and the executive branches of these governments at the national and state level. To maintain the balance between the central authority and state, ‘the method of distribution of powers must be reduced to some definite and tangible form, not alterable by the central authority at will” (Zimmermann and Finlay 2011). It is at this point where one experiences significant difficulties on whether under Article 101 (r), one can support the argument that South Sudan has federation in a practical sense.

Despite the constitutional commitment to decentralisation, article 101(r) seems to undermine or at least is inconsistent with the presumed intention of the drafters. Article 101 (r) provides that the President shall …remove a state governor and/ or dissolve a state Legislative Assembly in the event of a crisis that threatens national security and territorial integrity. It is important to pay attention to this article to appreciate the scope of the power. Under the article, the president can do three things: remove an elected governor; dissolve a state parliament; and remove a governor as well as dissolve the parliament at the same time.

To reiterate, separation of powers is an overarching feature in a federal system. To found a truly federal system, the ten states of South Sudan must exist as political realities – not mere geographical entities.

Political reality can only be realised when a state has the powers to exercise executive and legislative powers exclusive of the national government.  Exclusive jurisdiction would mean that each level of government cannot encroach upon the power of the other.

Article 101 (r) has the effect of fundamentally interfering with the very existence of the institutions of governorship and state legislatures such as to leave their integrity to serve their constitutional purpose questionable. This is because the existence of the executive and legislative branches of the state can easily be altered by the national government without justification being given.

Without the continued existence of the State – in the manner discussed, it is pointless to talk of decentralisation, since all powers are effectively with the central government, specifically in the Presidency.

It is, however, plausible to argue that article 101 (r) does not deal with the separation of powers between the national government and the state government and as such presents no difficulties for federalism. It is true that the separations of powers between the separate levels of government are in fact dealt with in schedules A- C of the Transitional Constitution. Therefore, it can be concluded that 101(r) does not directly touch upon the question of separation of powers, it affect the continual existence of the organ (Office of the Governor and State Legislative assembly) vested with the powers.

Viewed this way 101 (r) does not technically affect the delineation or the exclusive powers granted under schedule B and therefore the Constitution arguably provide for a federal-like system of governance.

One can argue alternatively the above distinction is not only one without effect but also one that can lead us to accepting a superficial conclusion. Practically, 101 (r) affects the exercise of state exclusive powers by interference with state organ independence or separation from the national government. This means that instead of exercising the exclusive powers to serve the interest of the state population as envisioned in the constitution, states end up exercising powers as preferred by the national authority which has the powers of dissolving them or firing the governors or do both. Such an outcome defeats or significantly dilutes the basis for the separation of powers between the national government and state governments.

This analysis is not, in my judgement, far from the reality, examining the manner in which states Governors have been removed from office. As a result of 101 (r) encroachment, the fundamental characteristic of a federal system, of separation of powers in a manner which is not alterable by the central authority, is hard to defend in the context of South Sudan’s Constitution.

Finally, on my reading, though the states are given exclusive powers, these powers are significantly narrowed by a reading of schedule A and C. Firstly, it is noticeable or at least conceivable that, there is significant overlap between all the three different delegations of powers. Secondly, where a conflict arises because of a contradiction between the provision of a national law and state law on the matter of shared powers, the national law is to prevail to the extent of the contradiction. This means at the end states are left with very little.

Conclusion

This article aimed to explore wether South Sudan has a federal system guaranteed under the current constitutional design. I posit that the current constitutional design, although providing for a decentralised system, does not go far enough to guarantee a federal system of governance.

Whatever the drafters of the Constitution meant by the ‘decentralised system of government’, they did not appear to have meant a federal system. If respect is to be given to the fact that the Constitution is a legal document, we must confine ourselves to what is permissible upon a reading of the constitution itself.

We cannot, constitutionally speaking, adopt a construction, which has the effect of unconstitutionally amending the Constitution. To go as far as some suggest, is indeed to amend the constitution. It is to unconstitutionally amend the Constitution not only by the additional words which don’t appear anywhere in its text, but importing a concept that fundamentally changes the way our nation should be governed.

Considering the state of our country, there are concerns that the federalism debate is not only unnecessary but distractions. I disagree. We have reached a stage where we cannot conceivably go back to the status quo, yet in which the future is still unclear. It is for that reason that I think the debate is not only necessary but essential. It has regenerated interests on the question of how we should be governed, and no matter which side you are on, this is an important question that demands our attention, and the best of our efforts in attempting to answer it.

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South Sudan: Part (Two) Federalism and Prisoner’s Dilemma

By: Jack Lino Wuor Abeyi

(Gurtong Edited/Published)-The irony is that federalism is being championed by elites from regions which could fair equally badly with those they accuse of fear if it is to be implemented. Why did the call not come from communities living in either Unity or Upper Nile states?

Take the case of the Dinka communities in the Melut Basin (around oil blocs 3 and 7) in Upper Nile state as an example. It sits on the largest discovered oil reserves in Africa (newly revised figures estimate the presence of at least 10 billion barrels of crude oil under the basin). In the meantime, development remained an elusive dream in the basin, which took more than its fair share of suffering under Al- Bashir’s aerial bombardments during the war.

Even today, those communities are facing the environmental consequences of chemical toxins from the oil production. The poisonous materials leak into water sources and destroy their livestock, farms, land and lives.

Why aren’t they champions of federalism and request half of the oil produced in their backyards?  Do they not want to see the streets of their cities illuminated and filled with expensive vehicles, take their children overseas for medical treatment like most corrupt politicians do? Did they grow accustomed to live of misery and dispossession?  I am sure the opposite is true.

The most successful and practical form of federalism, which South Sudan could learn from, is that of the United States of America. Each U.S. state benefits from the federal system but manages its internal affairs separately.

Take the case of the highly prosperous state of Florida as an example. The state has managed to benefit from its tropical weather and attracts millions of retirees into large suburbs and secluded resorts.

It also encourages tourism and direct foreign investment by not imposing state taxes on business conducted within its borders. As a result, Florida’s annual budget is one the largest in the union.

On the contrary, to the west of Florida, lie the states of Alabama, Mississippi and Louisiana. They comprise a region which has historically been the stronghold for slavery and white supremacy.

It is therefore not a surprise to see them attracting few investors, which translates into modest annual budgets compared to that of Florida or New York. They are also major recipients of federal aid and therein are found the unhealthiest and the poorest population in the union.

In the future, the Federal Republic of South Sudan will have many states which will prosper while others will trail behind. The economic prerequisites for federalism in any environment include the presence of a reasonable educated population and economic equality among various regions of the federal system.

There’s also a need of a reliable infrastructure for effective communication and transportation to insure efficient transportation of goods and services across the federation.

South Sudan sadly lacks any of those factors for a healthy federal system. Therefore, it shouldn’t come as a surprise to say that the major factor, which will decide the shape of any federal arrangement in South Sudan, will be an agreement on the amount of money each state must contribute to the federal treasury. What form of federalism can be set up if citizens from Upper Nile and Unity states refuse to subsidize the budgets of the remaining eight states?

It will be a hotly contested issue and a time when current enthusiasts to the proposal will scratch their heads wondering what they have pulled themselves into.

The solution was easy in the U.S model: the Commerce Clause of the U.S. Constitution gives the federal government permission to collect Federal Income Tax from every legally working individual in all fifty states. In other words, the U.S. has a tax-based economy.

On the contrary, South Sudan has a resource-based economy with inefficient tax collection mechanisms.  In fact, over 98 percent of our national revenue is received from crude oil produced within two states: Unity and Upper Nile.

There are no significant taxes that can be collected from various states now and in the near future even if best tax collection methods are introduced; for the following reason: there’s no middle class to generate business projects and drive consumer activities.

Further more, most businesses in various states are concentrated in the informal sector of the economy, which are hard to be taxed. These include local merchants who rely on selling simple goods to families of government employees and the law enforcement agents.

Citizen in the ten states are faced with a problem of low purchasing power since their little budgets is often delayed in Juba. These are certainly not hospitable conditions for federalism now or in the near future.

Furthermore, if federalism is formed with an agreement to subsidize sizable portion of individual states budgets from the federal treasury, as it’s currently being practiced, then the same states might abandon the goals of generating development activities within their border and grow a habit of dependency on federal funds.

More, precisely, states will remain vulnerable to decisions by federal politicians in Juba while their citizens remain impoverished. The truth is that no single state will be able to stand on its own feet and fund its own budget without large subsidies from the central government.

Not even the two oil producing states of Upper Nile and Unite as their Capitals lay in ruin and their population scrapping by at various U.N camps.

Practical implementation of a federal system, without first insuring national reconciliation and nursing social ethos might exacerbate ethnic strives in the area of service delivery. Individual states will begin to keep accurate population census and genealogical records of their citizens, as they will be the basis for service delivery.

Oil producing states stand the chance of quickly affording the construction of modern healthcare and educational facilities, hire the best physicians, build better roads and provide better security to its citizens.

How will these wealthy states treat citizens from poorer states when they come knocking on their door, requesting medical treatment or education for their children?

Mishandling of such potential issues could cause ethnic tensions and mass relocation of entire communities from certain states to others. Minority ethnic groups within one state might feel discriminated by more dominant ones.  States will guard their borders with the viciousness of a lioness protecting her cubs; cattle rustling might cause intra-state wars since they will be settled by state law enforcement agencies and not mere cattle owners. States will grow more homogenous and the final picture will be a nation divided across ethnic lines.

The second possible challenge, which will arise from implementing federalism, before first fighting corruption, will affect the area of foreign investment. At least two possible problems might arise here. The first one concerns the visitor visa policies for investors entering the nation. This is an area where the current government deserves much credit for protecting the nation’s resources and economy by preventing bogus investors from entering the country.

However, in a federal system, there will be two ways to rush for development. Individual states, now realizing that they must stand on their own feet, will crisscross the world in search for investors.

In the meantime, thousands of investors will flood the nation to choose a suitable state for investment. The federal government will struggle to prevent shady investors from conducting maladroit dealings with state officials or risk seeing the country descent into chaos.

The second and more serious investment challenge might come from the quality of investors individual states will attract or find themselves tricked into signing shady deals with.

Additionally, state officials, now operating without fear of federal officials watching their backs, might practice corruption with impunity. The natural wealth of the states might be at the mercy of thieves and bogus investors. State citizens will only have to blame their own state officials.

The idea of federalism might have enchanted many citizens to see it as a viable solution to the problem of governance in the south Sudan; but it’s not the best. Its timing, as stated above has added fuel to the fire of confusion in a society washed in ignorance.

Federalism is now being interpreted as a new code for tribalism. It’s hardly an issue citizens can coalesce around if they become aware of its challenges in the current political period.

Those who expect it to deliver the positive outcomes it promises might be expecting too much. It will be like giving a car key to five year-old children and expect them to drive themselves to school and come back safely.

Before the nation embarks on a serious debate on the issue, there is a need to promote solidarity, reconciliation, and a sense of nationalism.  Quite simply, federalism without nationalism is another tragedy in the making.

(*Read Part 1 also posted on the blog).

Jack Lino Wuor Abeyi is a researcher in Political Science and Sociology. A graduate of Florida State University, Tallahassee, Florida, U.S.A. He can be reached at cush2008@yahoo.com

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Federalism: The Difference Between Riek And Equatoria

“Dr Riek Machar’s call for federalism is at best deceptive and at worst a betrayal of the genuine Equatoria’s call for federalism.”

 By Jacob K. Lupai

Federal states have been in existence for the last two hundred years. Although there was no explicit mention of federation, it was in the Juba Conference 1947 that South Sudanese first voiced their fears of domination and marginalization by Northern Sudanese. In the Conference Southerners basically wanted safeguards that they would not be mistreated by Northerners. It can, therefore, be seen that indirectly Southerners were already calling for a federal system of government that would have guaranteed them equality with their Northern counterparts and also sustainable national unity.

As Southerners were not well informed and sophisticated enough like the Northern conferees, they were easily manipulated to go along with the concept of one united Sudan without concrete guarantees. They took what Northerners said by word of mouth in the Conference as a guarantee. This is because in the Conference Northerners stressed that they had no intention to dominate the South. However, what the Northerners had stressed turned out to be a white lie or deception. It was to take the South two bitter and devastating liberation wars to get rid of Northern domination and marginalization.

Eight years later from the Juba Conference 1947 Southern members of parliament in Sudan put forward a condition for supporting the motion for independence from British colonial rule. They proposed a federal system of government for Sudan to safeguard the interest of the South. The Northern deceptive response was that the proposal for a federal system would be considered after independence of Sudan. After independence and under no obligation Northerners rejected the federal system for Sudan without any convincing explanation. To add salt to injury Northerners instead drafted a constitution fit for an Arab Islamic State. The Southern call for a federal system of government for Sudan was unceremoniously outlawed. Nevertheless, the Southern response was nothing but an armed struggle for freedom.

The point that is being made here is that the call for a federal system of government in South Sudan is not unique. In 1955 the Southern call for a federal system was to make the unity of Sudan attractive as the basis of sustainable national unity. Unfortunately the dominant Black Arabs of Sudan were arrogant, insensitive and extremely stubborn to their Black African cousins in the South. The Arabs were only to regret when Sudan ultimately disintegrated into North and South with colorful and magnificent celebrations in the South as that was where most of the resources the Arabs had exploited were found.

Federalism in South Sudan

Equatoria, of the three regions of South Sudan, was the first in 2011 to pass a resolution in a conference that: A democratic federal system of governance should be adopted for the Republic of South Sudan, therefore the establishment of the new country as the Federal Republic of South Sudan.

The motive for the call of a federal system of government in South Sudan is not very difficult to comprehend. It is to promote justice where none is above the law in contrast to selective justice, it is for sustainable national unity in contrast to ethno-centricism and it is to promote prosperity for all in contrast to absolute poor service delivery. The call for a federal system of government in South Sudan should be seen as a national agenda instead of being narrowly perceived as an Equatorian plot to segregate others. Federalism is for the benefit of all in South Sudan.

The essence of a federal system is its responsiveness to diversities and in defusing simmering tensions that may tear a country apart. The loud call for a federal system of government may co-relate to people’s experience of absolute poor service delivery. Things may therefore be different when a federal system is adopted.

Riek Machar’s call for federalism

Dr Riek Machar was the second most powerful man as the Vice President until July 2013 in the Government of the Republic of South Sudan. In December 2013 Dr Riek Machar declared openly that he was in rebellion against what he described as dictatorial tendencies of the President. In his rebellion Dr Riek Machar wanted support. Knowing very well that the call for a federal system was popular in Equatoria he wasted no time to make the call for federalism the top item on the agenda of the rebellion.

Dr Riek Machar must have calculated that by crafting federalism onto the agenda of his rebellion he would get automatic and total support from Equatoria. This, however, seems to have created a problem as Equatoria is now perceived sympathetic to the rebellion. A critical analysis is therefore needed of the extent to which Dr Riek Machar’s call for federalism is the same as that of Equatoria. This is in order to allay fears that may cause unnecessary panic and also for people not to get confused.

To begin with Dr Riek Machar’s call for federalism is at best deceptive and at worst a betrayal of the genuine Equatoria’s call for federalism.

People must recall that as the Vice President Dr Riek Machar at first supported federalism when the majority of members from Equatoria in the National Legislative Assembly in July 2011 endorsed federalism just before the day of independence. However, at the last hour Dr Riek Machar rejected the very federalism for which he is now calling. People must take it with some caution as to why Dr Riek Machar is now turning around to claim to be the champion of federalism while he was comfortable in rejecting it.

The difference

The difference between Dr Riek Machar’s call for a federal system and that of Equatoria is crystal clear. The Equatoria’s call for a federal system is genuine while that of Dr Riek Machar is a ploy for support from Equatoria. Dr Riek Machar is unreliable and so it is doubtful that he will ever implement a federal system in South Sudan. Did he not let down the people of Equatoria during the crucial vote for either federalism or decentralization in the eve of independence? It is clear that the difference is that Dr Riek Machar sees federalism as a sure way to the presidency while Equatoria sees federalism as a national agenda that does not need the use of force to impose it on the people of South Sudan. Federalism is a revolutionary agenda for the acceleration of socio-economic development for high standards of living in South Sudan.

In the communiqué that followed the Equatoria Conference 2011 it was affirmed that: “Mindful of the suffering of the people of Equatoria in the past decades, we will no longer accept Equatoria land to be used as a battle ground for any senseless bloodshed”. This confirms that Equatoria has nothing to do with the rebellion. Equatoria is peaceful and development oriented. It will therefore not welcome to its soil such a rebellion that has caused untold destruction and mayhem in the country.

Conclusion: It is hoped that there won’t be any confusion again between federalism called for by Dr Riek Machar and that called for by Equatoria. Equatoria had called for federalism before the rebellion. The vision was that federalism would not be imposed but rather would be accepted or adopted through consensus. This means people will need to be educated and convinced through open discussions and debates. People’s fears about federalism must be allayed and federalism must be thoroughly illustrated with examples from around the world. Putting a redline to discussion on federalism is not helpful because people may be forced to discuss it behind closed doors which may be much more dangerous than discussing it openly for people to gain confidence.

In principle it seems many people in South Sudan have no problem with federalism. One prominent revolutionary and architect of the armed struggle that brought independence said in a function that “federalism is not bad but proposed at the wrong time”. The implication is that South Sudanese support federalism but their fears must first be addressed and the time for adoption should be right.

When should the time be right is the question. The issue of rebellion and federalism could be addressed concurrently where the states should be involved as important stakeholders. Muzzling free thinking is not helpful in our search for a lasting solution to the problems of South Sudan.

In conclusion, no one appears to be against federalism but the fear seems to be the unseen devil in details of federalism which, therefore, needs our collective effort to reduce the fear for the common good of all.

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Proposed Fed System Part 3

Proposed Federal system for future South Sudan: Let us serialize it

 Part 3

By Sindani Sebit

Part 3 of these series focuses basically on the Federal structures under the Federal President (Prime Minister). These structures include the cabinet, defense and Federal law enforcement agencies. From the graphic illustration below, you will notice that the Parliament and the Judiciary is not included here because these two constitutional institutions are independent of the President (Prime Minister).

The basic idea is to enable the people of South Sudan critically understand the separation of powers at Federal level and devolution of powers to the state. It is apparent that the organized forces such as the police, wild life, internal security services, fire brigade or any form of organized forces are not part of the Federal government and thus do not constitute a part of the federal law enforcement but are rather under the state governments.

In this article the plan to reorganize the defense will not be discussed suffice to say the number of the army with be reduced to not more that 80,000 (infantry, air force and navy) while the restructuring will take into account qualification of the soldiers, age, sex and equality and equity within the federal Republic of South Sudan. This restructuring will be done by independent experts including foreigners who have experience in army restructuring. Therefore the areas that will be discussed here are the functions of the executive including the President (Prime Minister), the cabinet in general and the roles of the federal law enforcement services. The individual ministerial portfolios will also not be discussed because the intention of the article is not to specify which ministries will be established and how many but the number should be between 18 to 24 ministries. The purpose of this article is to enable everyone understand the functions of the president and the institution under the presidency and feed back with constructive suggestions.

 Structures under the Federal President/Prime Minister

Executive

The executive authority of the Federal Government of South Sudan is derived from the people. This must be exercised in accordance to the constitution based on the principle of service to the people and to foster their wellbeing. The Executive shall consist of the President (Prime minister), deputy President (Prime minister) and the cabinet. The composition of the executive should reflect the regional and ethnic diversity of the people of South Sudan. This means equality and equity must be the principle on which the president should appoint the cabinet. This balance is crucial in order to create unity and avoid marginalization of some ethnic groups. Certainly not all the 64 tribes of South Sudan will be in the cabinet but attempts must be made to ensure that there is no domination by one or two tribes or regions. On the other hand equity must be observed so that disadvantaged groups such as women, the disable and other marginalized groups cannot be ignored when the government is being formed.

President (Prime Minister)

Authority of the President (Prime Minister)

The President (Prime Minster) shall be the head of State and government and commander in chief for the defense forces. These include the infantry, air force, the navy and the federal law enforcement services that include federal intelligence service (FIS), Immigration and Custom Service (ICS), Drug Enforcement and Illegal Trafficking service (DEIT) and Special Security Service (SSS). The President (Prime Minister) shall also be the chairman of the federal security council which should comprise of the President (Prime Minister), his/her deputy, the heads of the defense forces, the head of the federal intelligence service, the federal foreign minister, secretary to the cabinet and the governor of the state that hosts the federal capital. The President (Prime Minister) will exercise authority of the federal government with assistance of the deputy President (Prime minister) and the cabinet.

Role of the President (Prime minister)

The role of the President (Prime Minister) is to respect, uphold and guard the federal constitution. He/she must exercise powers vested on him/her by the constitution. He/she shall not rule by decrees but only through the articles of the constitution. The President (Prime Minister) though will enjoy the immunity of office, shall not be above the law. He/she shall promote and enhance the unity of the Federal republic of South Sudan, ensures that diversity of the people and ethnic communities are respected. He/she must protect human rights and fundamental freedoms and rule of law as enshrined in the constitution. It must be emphasized here that respect for South Sudan diversity within united South Sudan will work to enhance mutual understanding and trust among the various tribes of South Sudan and will enrich the various South Sudan cultural beliefs and practices. This will further strengthen unity and harmony among the citizenry of South Sudan.

Functions of the President (Prime minister)

Constitutionally the Federal President (Prime Minster) shall perform the following functions:

• Address the opening  of parliament and specific sittings of the parliament
• Report annually to the nation by submitting to parliament the extent of implementation of government program and progress achieved.
• Nominate and with approval of the federal parliament appoint or dismiss:

ü  Cabinet ministers

ü  Attorney General

ü  Permanent secretaries

ü  High commissioners, ambassadors, diplomatic and consular representatives

• Chair cabinet, direct and coordinate the functions of the federal ministers and government departments
• Declare state of emergency and with approval of parliament declare war. The President (Prime Minster) under no circumstance should declare war without approval of the federal Assembly.
• Promote and enhance the unity of the nation, ensure that diversity of the people and ethnic communities are respected, human rights and fundamental freedoms and rules of law are protected
• President (Prime minister) has no constitutional powers to remove from office any elected members of government at all levels of administration. These include

ü  MPs

ü  Governors

ü  County commissioners

ü  County counselors

The purpose here is to deny the president (Prime Minister) any powers that he/she can use to remove peoples’ elected representatives and to respect the devolution of powers to the states. This will enable the peoples’ representatives and heads of Federal states to work without undue fear of being unconstitutionally removed from office by the President (Prime Minister).

Qualification of the President

In case where the country opts for federal President, in order for anybody to be elected as Federal President he/she must be:

• Citizen of South Sudan
• At least must have been a government of a federal state or a senator before standing for the election of president.
• At least 35 years of age
• Graduate from any recognized university

Qualification of the Prime Minister

If the country opts for Prime Minister as the head of government like in UK, Indian and many federal states, the candidate for this post should be:

• Citizen of South Sudan
• Leader of the party with highest number of MPs in Parliament or highest number of MPs of collusion parties in parliament
• Has been elected as a member of parliament by his party or collusion
• At least 35 years of age
• Graduate from any recognized university

Election of the President

The Federal President shall be elected directly by the people by universal suffrage in an election organized by the Federal Electoral Commission as stipulated in the constitution while for Prime Minister; he/she shall be elected by parliament from the party or collusion of parties with the highest number of MPs.

Vacancy in the President (Prime Minster) office

When the president dies or becomes incapacitated, his/her deputy will take over until new elections are called in accordance with the constitutional provisions pertaining to elections. However, in case of Prime Minister; if he/she dies or becomes incapacitated while in office, his/her party or collusion can nominate another member of parliament from his/her party or collusion to be elected acting Prime Minister until new elections are conducted according to election calendar as stipulated in the constitution. In case the party or the collusion of the Prime Minister looses majority or confidence vote, new national election shall be called as stipulated in the constitution.

Deputy President (Prime Minister)

He must be the principal assistant. He/she will perform the functions assigned by the President (Prime minister)and acts as President (Prime minister) during the absence of the President (Prime Minister).

Federal Cabinet

The federal cabinet shall consist of the President (Prime Minister), his/her deputy, the Attorney General and not less than 18 and not more than 24 ministers. The Federal President (Prime Minister) will nominate all proposed cabinet ministers, present them for vetting and approval by the Federal Parliament before they appointed ministers. Likewise, cabinet ministers shall only be dismissed by the President (Prime Minister) after due approval by the Federal Parliament. This is to avoid nepotism, incompetence and unqualified people being appointed as ministers. It will also weed out people who might have been corrupt or tribalistic in their previous duties. Cabinet ministers should be selected from qualified civil servants and not members of parliament so that parliament has no conflict of interest in approving the cabinet.

Conversely the Federal Parliament may propose a motion requiring the President (Prime minister) to dismiss a cabinet member only on the following grounds:

• Gross violation of the provision of the constitution or any other law
• Serious reasons for believing that the said member has committed a crime under federal or international law.

In such situations, the President (Prime Minister) is required to oblige. However, clear procedures for such request by parliament, shall be stipulated in the constitution.

Although cabinet ministers are accountable to the President (Prime minister), they must attend to any summons by the committee of the parliament so as to enlighten the parliament about their activities and also to be accountable for their actions. Performance contract do usually improve performance and accountability and therefore all cabinet ministers shall be required to sign performance contract at beginning of their term of office. These contracts shall be reviewed at end of every year to determine if the concern minister has fulfilled his/her obligations. Failure to do so will trigger parliamentary process to remove the minister.

Attorney general

The attorney General is a member of cabinet. He is not a part of the Judiciary. Attorney is the principal legal adviser to the Federal government. He/she represents the Federal Government in court or any other legal or criminal proceedings. He/she can be a friend of court in any proceedings where the Federal government is not a party. His/her role is to promote, protect and uphold the rule of law and defend the public interest. He can also be assigned any function by the President (Prime Minister).

The Attorney General shall be nominated by the President (Prime Minister) and with approval of parliament appointed to office. The process of approval by parliament should be done transparently and rigorously to avoid tribalism, nepotism and favouritism. He/she should have qualification equivalent to Federal Chief Justice and should serve for 5 years but can be reappointed if necessary.

Director of persecution

In order to have independent and impartial persecution system, an independent office of persecutor shall be created. This office shall have right to tenure of office for 5 years and renewable for the same period. The occupant of the office shall be nominated by the President who will seek for approval of parliament before his/her appointment. The qualification of the persecutorshould be at the level of Judge of the Federal Court of Appeal. The persecutor shall have powers to direct the commissioner of police to investigate any information or allegation of criminal conduct and will exercise powers of persecution. In so doing he/she may institute and undertake criminal proceedings against any person before any court; take over and continue any criminal proceedings started in any courtand can discontinue, at any stage before judgment is delivered, any criminal proceedings.

The persecutor shall not require the consent of any person or authority for commencement of criminal proceedings. He/she shall not be under the direction of any person or authority but should have regard for public interest, the interest of administration of justice and avoid abuse of the legal process.

The South Sudan Federal Law Enforcement Agency

The Federally operated agencies are essential to enforce various types of laws in the South Sudan that cannot be devolved to the states. These services usually cut across the states and in most cases cannot be managed at state level. These are services that cannot be assigned to organized forces under the state. The services that will be implemented by the federal Law Enforcement Agencies include:

1. Protecting, preventing, countering, and investigating terrorism;
2. Illicit drug trafficking;
3. Transnational and multi-jurisdictional crime;
4. Organized people smuggling, human trafficking and slavery;
5. Serious fraud against the Nation;
6. High-tech crime involving information technology and communications;
7. Peacekeeping and capacity building; and
8. Money laundering;

The Federal Law Enforcement Agency is divided into four (4) federal law enforcement organs namely:

Federal Intelligence Service (FIS)

The Federal Intelligence Service is a highly secretive federal law enforcement organ whose mission is to collect and evaluate foreign intelligence in an effort to protect the security of Federal Republic of South Sudan. It may also be involved in covert activities in other countries at the discretion of the President (Prime Minister) of the Federal Republic of South Sudan. It will be responsible in combating international terrorism. Therefore it will frequently work with other countries to accomplish this effort.

Immigration and Customs Services (ICS)

ICS shall be charged with enforcing laws involving border control, customs, trade and immigration. It constitutes the Federal police force that enforces illegal immigration activities throughout the Federal Republic of South Sudan and investigates import and export illegal goods and materials.

Drug Enforcement and Illegal Trafficking (DEIT)

DEIT shall be charged with the responsibility of investigating and enforcing laws related to illegal trafficking of firearms and explosives as well as the theft and the unlawful sale and distribution of alcohol and tobacco. It is also responsible for enforcing laws relating to controlled substances like marijuana, cocaine and heroin. It will work with other state and county organized forces as well as with foreign governments to reduce the trafficking of illegal drugs.

Special Security Service (SSS)

The Special Service Service’s primary function is to protect the President (Prime Minister) of the Federal Republic of South Sudan and his/her immediate family as well as the Vice-President and other high ranking government officials who might face security threats. It will also be tasked with protecting Federal Courts and Judges. It will deal squarely with counterfeiting of currency, money laundering, internet (Cyber) security and threat, fraud, and credit card fraud. In addition, it will serve as covert law enforcement on Federal Republic of South Sudan aircrafts and other high value targets in the country.

In conclusion, compared to the current system of governance in South Sudan, the federal system proposed here curtails the dictatorial powers of the President, affirms the independence of the Parliament and Judiciary and boasted the oversight role of Parliament over the executive. The President will have no powers to appoint his cronies or tribal bigots to office without approval from Parliament. This system will indeed counter the rampant corruption, tribalism, nepotism and favouritism in South Sudan. It will also frustrate the efforts of any President (Prime Minister) from becoming a dictator.

Sindani Sebit

Nairobi; Kenya

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Benefits and Drawbacks of Federalism in a Broader and Practical Perspective in South Sudan!

By Johnny M. Mabor

According to HistoryLearningSite.co.uk.2006, Federalism is a system of government in which a written constitution divides power between a central government and regional or sub-divisional governments. Both types of government act directly upon the people through their officials and laws. Both types of government are supreme within their proper sphere of authority. Both have to consent (agree) to any changes to the constitution.

In America the term “federal government” is usually understood to refer exclusively to the national government based in Washington. This, however, is not an accurate interpretation of the term as it excludes the role played by other aspects of government concerned with the federalist structure.

Federalism can be seen as a compromise between the extreme concentration of power and a loose confederation of independent states for governing a variety of people usually in a large expanse of territory. Federalism has the virtue of retaining local pride, traditions and power, while allowing a central government that can handle common problems. The basic principle of American federalism is fixed in the Tenth Amendment (ratified in 1791) to the Constitution which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” There are certainly a number of strict regulations to be follow by the state government. For example, the states must observe the Constitution of the United States of America and they must obey valid laws of the federal government made under the Constitution so the same could apply here if we adopt federalism and it is not really what you lots out there thing. Of course there are positives and negatives of every Jack as usual and let me put through some benefits and drawbacks of this system.
Federalism if simply put shall be a practical way of combining (through representing institutions), the benefits of unity and diversity. It is the distribution of ‘power’ to local government units or the 10 states of South Sudan that is normally highly consolidated in a national government (in the republic form of government).
That would mean bringing the government nearer to people, literally and symbolically, so the burden of development, and basic services in the society will be delegated to the local government units, hence theoretically, making the governance easier, much accessible to the local people, and development would reach the farthest provinces of the country. Political stability can be achieve by removing the national government from some contention issue areas and as well as encouraging pluralism in a sense that it expand government on national, state and local levels, giving people more access to leaders and opportunities to get involved in their government. Optimum utilization of resources because of the division of work between the central and the regional governments for example, the central government can concentrate more on international affairs and defense of the country, while the provincial government can cater to the local needs.
Federalism however prevents the creation of a national policy. For example the United States does not have a single policy on issues: instead it has fifty-one policies which often lead to confusion and in that regard, South Sudan will have 10 policies and you can bet you money or even your life that it will only bring more confusion than the current republic system. Lack of accountability shall arise because of an overlap of the boundaries among national and state governments subsequently becoming tricky to assign blame for fail policies.
The most ardent South Sudanese citizen knows that ignorance within our community is a vice and that will not help in adopting federalism either, most South Sudanese are illiterate and completely do not know anything about federalism and even the few educated ones still knows little about their state and local governments and that was evidenced in the turn out in the previous state and local elections which was relatively low, less than 25 percent. Citizens consequently often ignore state and local governments even though these governments have a lot of power to affects people’s lives.
If we adopt federalism, then let us embrace ourselves for a variation in state laws concerning such matters as the age at which one can drive a car and must attend school as well as differences in penalties of law breaking from state to state and there shall be complexity of the South Sudan legal system, having both national and state courts and each state having not only its own laws and courts but also its own constitution.
Even tax system will be complex i.e. Income tax (federal and state); state property taxes; local sales taxes etc will bring a lot of agitation and besides the regional diversity (the Bahr el-Ghazal, Equatorial, Upper Nile) will only worsened the tribal conflict. G. Pascal Zachary in his book titled “the diversity advantage” under the content; what works in the sub-Saharan Africa and what doesn’t, gave a study by the International Crises Group which identifies a set of problems with Ethiopia’s effort to politicize ethnicity and use federalist structures to apportion political benefits among definable ethnic groups. ICG insists these arrangements are making ethnic grievances grow, rather than recede, and the think tank may be correct; it is not just going to work in South Sudan considering our ethnic diversity.
Corruption is imminent or could get worse with the federal system of government that comes at a cost; it’s therefore acute to note that it is very expensive as more people are elected to office, both at the state and central than necessary. Thus, at this point I am able to say that only rich countries can afford it. And as we advocates for federalism with all our lungs out, a wise citizen should be cautious of the fact that federalism pitches state against state through unnecessary competition between different regions and as a matter of fact you are not going to rule out rebellion by a state government against the national government too. You certainly don’t need to be a student or a professor to notice that federalism leads to uneven distribution of wealth and promote state inequalities. e.g. Natural resources, industries, employment opportunities differ from state to state. Hence, earnings and wealth are unevenly distributed. Rich states offer more opportunities and benefits to its citizens that the poor states. Thus, the gap between rich and poor states widens. Anyway all in all “We definitely got a better “script” in federalism, but the question is who will be the “actors”? Will they be using the same “artistic craft” that they has employed while functioning in a republic form of government? If the actors and performances would be exactly the same, I’d say federalism wouldn’t make much difference. It would just be a waste of time, money and energy”
By: John Mading Mabor
Public Policy Analyst
Deputy Chairperson of the Public Relation Society of South Sudan (PRS)
I can be reached on: Email: jonmadine@yahoo.co.uk

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 Proposed Federal system for future South Sudan: Let us serialize it–Part 4

By Sindani Sebit,

The Part 4 of these series focuses essentially on the proposed judicial system in a Federal Republic of South Sudan. It outlines the basic aim of the judicial system, its composition and independence, the structures at the Federal and Federal State levels of the country; and the role of the Judicial Services Commission promoting the independence of the judiciary, facilitating the accountability and transparency of the entire judicial system. The independence of the judicial system is crucial and paramount if the country is to uphold and protect the rights and fundamental freedoms of its citizens, ensure accountability, justice, equality and equity for all people regardless of colour, creed, tribe, ethnicity, religion and sex.

Therefore the aim of the judicial system is therefore to ensure that nobody is above the law and everybody is accountable for his/her actions according to the Federal Constitution and also to promote fair judgment, equal treatment before the law and protect all rights of the citizens regardless of their standing in the society.

The purpose of this article is therefore to provide the people of South Sudan with the basic knowledge of the kind of judicial system that will protect them under a federal system of governance as opposed to the current subjected judicial system in South Sudan. It is hoped that constructive feedback and suggestions will be generated.

Judiciary

Fair judicial system is important for any citizen of a country to enjoy his/her liberties and rights. Judicial system that is independent and based on transparency and accountability guarantees equality and equity, it promotes harmony, unity and togetherness because nobody will be considered to be above the low. It creates and ensures confidence among the citizenry because of the grounded belief that they are protected, their property is protected and that none of them will be subjugated, oppressed and denied his/her right to live, enjoy, marry, acquire and own property.

Therefore, the authority of the Judiciary in a Federal Republic of South Sudan shall emanate from the people and shall be vested in and exercised by courts and tribunals as stipulated by the Federal Constitution. The courts and tribunals should be grounded by the fact that justice shall be done to all regardless of status of a person concern and justice shall not be delayed. Courts shall endeavour to promote alternative forms of dispute resolution such as reconciliation, mediation, arbitration and traditional dispute resolution mechanisms and shall ensure that justice shall be administered without regard to procedural technicalities and that purpose and principles of the constitution are protected and promoted. On the other hand, the courts shall ensure traditional dispute resolution mechanisms shall not be used to contravene any bill of rights, promote acts that are contrary to justice or morality and not result in outcomes that are repugnant to justice and morality and that the traditional dispute resolution mechanisms shall not be inconsistent to the constitution or written law of the country.

Independency of Judiciary

The Judiciary in Federal Republic of South Sudan will not be subjected to any authority other than the constitution and law of the Republic. It cannot be subject to control or direction of any person or authority and the office of the Judge of the Federal Superior court shall not be abolished as long as there is subordinate office holder. All judge salaries and benefits shall be charged to a consolidated fund and members of Judiciary shall not be subjected to any action or suit resulting from anything done or omitted in good faith in the lawful performance of a judicial function. This is meant to guarantee the independence of the judiciary. It means that the judiciary shall be independent of the executive and parliament. It will have its budget and tenure of office.

Composition of Judiciary

The judiciary proposed here will include judges of Federal Supreme Court, Federal Court of Appeal, Federal State High Court Judges, Magistrates, Other judicial officers and Staff of the judiciary. The offices of the judiciary shall comprise the Chief justice as the Head of the judiciary, the Deputy Chief justice as Deputy Head to the judiciary, Chief registrar as Chief Administrator of and accounting officer to the judiciary and the Judicial Service Commission. The role and functions of the Judicial Service Commission will be outlined later in this article.

Structure of the Courts

The courts in the federal Republic of South Sudan shall be structured as follows: 1) Superior courts. The superior courts include the Federal Supreme Court, Federal court of Appeal and state high courts. 2) Subordinate courts that include the magistrate courts and court martial courts. The courts will be distributed according to the two levels of administration. Therefore at the Federal level, the following courts shall be established:

1. Federal Supreme Court
2. Federal Court of Appeal
3. Any other court prescribed by the Federal constitution such as commerce and trade laws, employment and labour laws at Federal level.

Meanwhile the following courts shall be established at State level of governance:

1. High Court
2. Magistrate court
3. Martial courts
4. Any other courts that are prescribed by state constitution such as commercial courts, employment and labour laws, environmental and land laws, etc

Federal Supreme Court

The Federal Supreme Court shall be the highest Federal court in the country and shall be headed by the Chief Justice deputized by the Deputy Chief Justice. Its composition will include 5 judges as will be determined by the Federal Constitution. This court is charged with appellate jurisdiction to hear and determine appeals from:

1. Court of appeal
2. Any other court or any matter of public importance or interest

Federal Court of Appeal

This is the second highest court in the country and shall comprise of 18 judges as prescribed by the Federal Constitution. The constitution shall ensure that one judge is appointed to the court from each of the proposed 18 Federal states. If the number of Federal States is more or less than 18, the number of judges should also be varied to ensure that each state is represented by one judge in this court. This is to create equal representation and guarantee fair administration of justice in the country.

The court shall be headed by the President of Federal Court of Appeal elected by its members in their first sitting. The principal role of this court is to hear and determine cases from:

1. Referred from State High courts
2. Questions arising from interpretation of Federal constitution including electoral cases
3. Cases arising from interstate conflicts
4. Any other court or tribunal prescribed by act of Federal parliament

State Courts

The state courts include the high courts, magistrate courts, chiefs’ courts and any other form of traditional courts.

High Court

This court consists of number of judges as prescribed by the state constitution. It shall be headed by Principal Judge elected by its members in its first sitting. Its fundamental functions shall be to hear and determine:

1. Unlimited jurisdictions in criminal or civil matters
2. Issues related to the bill of rights and fundamental freedoms
3. Appeals from decisions from tribunals and magistrate courts
4. Questions arising from interpretation of state constitution
5. Whether any law is consistent with or in contravention of the state constitution

Magistrate Courts

The state parliament shall enact legislation conferring jurisdiction, functions and powers on these courts

Appointment of Chief Justice, Deputy Chief Justices and all judges

The posts of Chief justice, his/her Deputy and Judges of the State High Courts are constitutional posts and therefore subject to approval by the Federal Parliament in case of the Chief Justice and his Deputy and Federal State parliament in case of Judges of the State High courts. Thus the Chief Justice and his/her Deputy shall be recommended to the President/Prime Minister by the Judicial Service Commission, approved by the Federal Parliament and then appointed by the President/Prime Minister. No person shall be appointed by the president to these posts without the recommendation of the Judicial Service Commission and approval of the Federal Parliament. Any person appointed without following this due process shall be deemed to have been appointed unconstitutionally and therefore shall not be permitted to assume these offices.

Similarly the same procedure shall be followed in the appointment of Judges of the Federal State High Courts with the exception that the candidates will be recommended to the State Governor by the State Branch of the Judicial Service Commission and will be approved by the State Parliament before appointment by the State Governors. In this case the Federal President/Prime Minister has no powers to appoint any Federal State High Court Judge. Any attempt to do so shall be deemed unconstitutional and such appointee shall not be permitted to assume the office of judge in that state. This is to protect against corruption, nepotism, favouritism, equality and equal opportunity.

Therefore any person who intends to be appointed to any position in the judiciary shall present an application to the Judicial Service Commission either at federal or state levels depending on the position and the Judicial Service Commission shall ensure competitiveness and transparency in processing the application in accordance to the rules and regulations of employment as stipulated in the Judicial Service Commission act.

Qualification of the judges

In case of Chief Justice, Deputy Chief Justice and Judges of Federal Supreme Court, the candidate must have a degree from recognized university, has high moral character, integrity and impartiality and has experience of at least 10-15 years as member of superior court judge or distinguished academia, judicial officer or such experience in other relevant legal field. This is to ensure competency, integrity and respect.

For Judges of Federal court of appeal, the candidate should have at least a degree from recognized university, experience of at least 7-10 years as member of superior court judge or distinguished academia, judicial officer or such experience in other relevant legal field while for Judges of High court, the candidate should have at least a degree from recognized university and has experience of at least 7-10 years as member of superior court judge or distinguished academia, judicial officer or such experience in other relevant legal field.

Tenure of office of the Chief Justice and other Judges

In order to ensure that the Chief Justice and other Judges have confidence in their work and not to be intimidated by the powers that be, these judicial officers shall have tenure of offices which shall be prescribed by law according to retirement age or maximum tenure period of 10 years.

Removal judicial officers from Office

Judicial Officers may be removed from the office only on the grounds of:

1. Inability to perform the functions due to mental or physical injury
2. Breach of a code of conduct
3. Bankruptcy
4. Incompetence
5. Gross misconduct

The process of removal of judge shall be initiated by the Judicial Service Commission in accordance with rules and procedures prescribed in the act of Judicial Services Commission. This is intended to protect the judicial officers from undue interference by the executive and to ensure they perform their work independently without any pressure from anybody.

Judicial Service Commission (JSC)

This body shall be established so as to ensure the independence ofjudiciary system. The functions of JSC shall be to:

1. Promote and facilitate the independence and accountability of the judiciary
2. Ensure efficient, effective and transparent administration of justices
3. Recommend to the President/Prime minister persons to be appointed as judges
4. Review and make recommendations on the condition of service for:

• Judges and judicial officers
• Staff of the judiciary

1. Investigate and remove or dismiss registrars, magistrates and other judicial officers and staff
2. Ensure there is continuous education for judges and judicial officers
3. Advise the Federal and state governments on improvement of efficiency of the administration of justice

The JSC shall be guided in its work by competitive and transparent process of appointment of judiciary, equality, fairness, justice and promotion of gender equity. The JSC shall be composed of the following officers:

1. Chief Justice as the chairperson of the JSC
2. One federal supreme court judge elected by supreme court judges
3. One Federal court of appeal judge elected by the judges of federal court of appeal
4. One high court judge and one magistrate, elected by members of association of judges and magistrates
5. Attorney general
6. Two advocates elected by the professional association
7. One representative nominated by the public service commission
8. Chief registrar of the judiciary; as secretary to the JSC
9. Three public representative appointed by the prime minister subject to approval by the Federal Parliament
10. Out of the 13 members at 30% must women

The varied composition here is aimed at creating fair representation, pulling together varied opinions, democratic participation and ensuring accountability and transparency. Tenure of the members JSC should be 5 years except for the Attorney General and Chief of Staff.

In conclusion, the aim of setting up such elaborate judicial system is to bring justice and equality to the country. It is to protect the civil rights and freedoms through independent judicial system and ensure equal participation in the decision process of administration of justice. In addition, the system must be judged to be transparent, accountable and responsive to the people. Furthermore, this is a deliberate attempt to remove corruption, nepotism, favouritism and preference that can work against the desire to have just system in South Sudan. Finally it is a deliberate course to ensure that the judicial system cannot not be subjugated, interfered with and made to be an instrument of oppression, subjugation and denial of fundamental freedoms and rights.

Article 5 of these series will focus mainly on the sources of financial resources for both the Federal Government and Federal states and how the federal resources can be distributed between the federal government and states. It will further illustrate how state resources can be distributed within the states. It will also outline the role of the body that will be responsible for financial resources distribution at the three levels of government.

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The Debate: ‘FEDERALISM A MUST FOR A VIABLE STATE”

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