Deadlock at the South Sudan’s National Constitutional Amendment Committee
The National Constitutional Amendment Committee(NCAC) on 27 January 2016 has its work come to standstill
WHY?
January 28, 2016 (SSB) — This is because the government representatives have requested for indefinite adjournment. They claimed that until the outstanding contentious issues have been resolved, the amendment process could not continue. We have called this as ‘technical withdrawal’ from the process since we could have cleaned the whole amended text of the Constitution and to only fix the contentious areas once they are resolved.
The contentious issues are the following:
1. 10 states versus government created 28 states:
The SPLM/A-IO had rejected the 28 states as willful violation of the Peace Agreement which all parties by their signatures, have made commitment to respect but now appears the contrary.
2. By-elections:
The government wants seats of the Members of the Transitional National Legislative Assembly that may fall vacant during the transitional period to be replaced by the respective parties which they belong.
The SPLM/A-IO rejects this version, arguing that geographical constituencies, independent candidates, specifically who were directly elected by the people, if these seats fall vacant, they should go back to the communities and be elected openly in an open competition by all political parties.
The SPLM/A-IO however, agrees that the 66 MPs appointed by President Kiir in 2011 and 68 MPs he would appoint in 2016 as ushered in by the Peace Agreement, should be the only seats replaced by the nominating parties to which they belong since these were not elected and mandated by the constituencies but appointees.
The government remains adamant that there would be no resources to conduct by-elections and that situation may not allow to do so due to insecurities in some areas. That, besides, the National Elections Commission remains not fully constituted!!
This argument is funny! For how long should such legally formed institution remain not fully supported and functional by government if the claim is to stand?
The SPLM/A-IO continues to ask; should the clear democratic and rule of law principles be compromised in the name of these claims which point to only absence of political will to implement the constitution by the government?
3. Presidential Advisors:
The government wants the Presidential Advisors to be maintained in the Constitution under the claim that the Peace Agreement never interferes with such provision.
The SPLM/A-IO continues to argue that by the very fact that the Agreement is silent on the Presidential Advisors, it points to one thing; that they are deemed to have been deleted and not intended to remain in the amended constitution.
It is imperative to note that these Advisors are very powerful, almost above a Minister and it should be concluded that the power-sharing has been well defined in the executive as stipulated in the peace agreement.
Claiming that the Advisors should be left, derails the power-sharing balance, thus defeats the spirit and letter of the article that defines the power-sharing ratios in the Peace Agreement. Experience is clear on how powerful the Presidential Advisors are in South Sudan and any reasonable person won’t make such a mistake of allowing this provision to stand unless on equal basis.
Additionally, the intention of the agreement is to create a lean government that has no other unnecessary burden to drain the government’s limited resources. Citizens need services not accommodated offices for political intention. What Advisors can do, Ministers will do it!.
4. Election of the Speaker:
The question has been; who would chair the first sitting of the expanded National Assembly that becomes ‘Transitional National Legislative Assembly to elect the Speaker from Equatoria?’
The government argues that the first sitting would be chaired by the incumbent Speaker of the National Legislative Assembly.
The SPLM/A-IO argues that the Assembly shall be a reconstituted entity and from the moment the reconstituted Parliament has come to life, the current speaker shall cease to be and cannot have any mandate to chair such a parliament where he has no status.
Importantly to note, one of the principles of natural justice requires that no man should be a judge in his own case. This simply means that where one is likely to be biased, such a person should not temper to preside on such a case.
Here it needs not prophets to predict what is expected if the current speaker were to be allowed to chair the first sitting to elect his successor?
Besides, the usual practice in the Assembly as well as in the Council of States, has been that, the first sitting of any of the Houses to elect the speaker, is chaired by the most elderly member of the Assembly. This has been provided for by Code of Conduct of Business of the Assembly.
By government rejecting such existing provision, is somewhat a defeating reasoning.
Note that the good news is that notwithstanding the above controversial points, the NCAC has completed the whole amendment work. It is remaining with cleaning up of the amended text and then to draft up the amendment Act and explanatory note that will accompany the amended constitution.
Observation:
Despite the above deadlock, the major issue is the question of states and the SPLM/A-IO continues to urge that, the government should realise the importance of Agreement and that it shall show political will to implement the Agreement in letter and spirit.
All citizens are urged to continue to support the reforms agenda ushered in by the Peace Agreement. It seems a good deal if fully implemented.
Stay tuned for further analysis and the NCAC shall resume as soon as the government decides to send back its representatives to the table.
May God bless South Sudan with true peace, unity, justice and reconciliation among its people.
From Biel Boutros, SPLM-IO representative to the NCAC, Juba, South Sudan
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