Why Economic and Political Uprising are civil means to end the Life of the Repugnant and Unproductive Government: The Case of the Government of South Sudan
By Tong Kot Kuocnin, Nairobi, Kenya
January 12, 2017 (SSB) —- The history of many African Liberation Movements have succinctly and coherently revealed that fighting for freedoms, in order to free your people from all yokes of oppression and marginalization of the repressive and most terrible despotic regimes in Africa is one thing and maintaining the legacy after the war to live longer is another. Too many African liberation movements suffered this fate and SPLM as one of the Africa’s strongest liberation movements of its time is thoroughly defaced by this disease and is on the next row.
The SPLM fought a fierce protracted civil war with the Islamist led government centered in Khartoum for more than two bloody decades which eventually culminated to the signing of the comprehensive peace agreement which form legal basis for south Sudan statehood. That was such an admired and well received legacy the SPLM as a liberation movement registered in the history of our nation. But is this legacy worth living on as it should have been? It’s certainly not. The SPLM after becoming a ruling party in both the former Sudan and the Republic of South Sudan seems to have felt short of its visions and missions and certainly lost its right direction.
The legacy which it had earned is being eaten away by some ants in its own thatched house where its cleaners became bosses. The legacy is no longer worth living in hearts and minds of the peoples of south Sudan, maybe only the SPLM diehards like myself may say yes, it would live worth living but loosely because it is the same SPLM that is eating its own tail. This is manifested by unethical and unprocedural reckless quirky mismanagement of almost all the resources of the state misguided by this assumption of being leaders of SPLM. This malfeasance conducts by these leaders led to the standstill and hence dysfunctionality of all the other organs of the party hence relegating some of them becomes weak and useless.
These leaders thrust themselves out by stabbing at the back the legacy they fought so hard to win. And of course they won. They have washed away all the credits and venerations they have earned first as fighters in the bush and in the government. But despite all these respect, admiration and love the people of south Sudan accorded them, they decided to immerse our beloved nation into the toilet. They divisions, power wrangle and quarrels that has inconsistently been going on within the ranks and files of the SPLM shows that SPLM as a liberation movement is going through the same hold most African liberation movements have gone through and has signal very resoundingly that it is suffering from the same disease.
However, belittling this infighting within SPLM is such ingenuity to its survival and rules or takes this country a head. The legacy of mass killings of innocent and vulnerable women, children and elderly is such a mischievous iniquity. The legacy of burning all the villages and infrastructure worth living of human being is such a worst legacy to leave in history. The legacy of looting all the civilians’ properties, rape every girl child and kidnapped women for forceful marriages is menacing to the entire state of south Sudan and hence the most dirtiest history a party like SPLM has in the records.
Therefore, what legacy would these so-called SPLM leaders leaves behind for the people of south Sudan to remember them? Is it the killings of innocent people they have masterminded due to greed for power within the party? Is it the looting of the properties of the civilians? Or is it the burning of villages, raping of women and girls that we should remember them for? The legend of this legacy has ventured and vanished away due to such inadvertent chaotic behaviors by the callous SPLM leaders as they called themselves, setting themselves unknowingly on such shame shambles of history.
However, shamefaced by the fact that they have lost all the respect and admiration that has all been accorded them by the populace; they disgracefully embark on pandemonium acts in the SPLM leadership circles. That legacy is very much lamented by many who had wished SPLM to move on as clean as it fought for the freedoms of the people of south Sudan. These leaders as they claimed in the SPLM cajole the people of south Sudan into a great calamity which will take some times to calibrate. The cantankerous bigoted SPLM leaders begrudge each other over a plate that is big enough to feed all of them at the expense of the people they claimed to be theirs.
This unspeakable torment the so-called SPLM leaders callously impelled on the people of south Sudan is very much deplored and detested. The imperiousity SPLM has earned in the sights and hearts of the people of south Sudan has been chattered away and completely lost and even thrown into the dustbin. They have torn apart our social bonds which bind us together as one people of this great country due to their selfish interests and coherently coerce our people to believe in their mindless violence which eventually cost only our poor and vulnerable people very pricelessly. They have uprooted our social cohesions and our being one people and begins to look at each other as tribes, as enemies and not as brothers and sisters who share common bonds and oneness.
Their debility in the SPLM house has debilitated all our social bonds and cripples them to a certain extent. This legacy is such a legacy which deserved no special place in our history books. The pain, the suffering, the destruction, rape and mass killings caused by these heartless leaders will surely be remembered for centuries to come as people who have caused and initiated unspeakable atrocities and untold human suffering of the sort in the history of the Republic of South Sudan.
The State of Presidential Amnesty Pardons in South Sudan: Its Perception and Challenges in Observance
In this part, I shall however introduces what presidential Amnesty Pardon means and while shedding light on the same token, I will too make some recapitulation on the constitutionality of the presidential pardon under Transitional Constitution of the Republic of South Sudan 2011, which is the fundamental supreme law of the land and to which other legislations must conform to it. However, for genuine democracies, constitutions consists of overarching arrangements that determine the political, legal and social structures by which society is to be built and governed.
Constitutional provisions are therefore considered to be paramount as fundamental law of the society where all other laws of the country must therefore abide by and follow the principles of the state constitution. Under these circumstances, if a constitutional law itself is inadequate then the nature of the democracy and rule of law within a state is affected. This will affect citizen’s human rights which can only be realized and protected under a rule of law framework.
- What is presidential Pardon?
A presidential pardon according to the constitutional law is the right given to the president to forgive thugs and others for having committed crimes, to commute sentences of those who have committed crimes, or to extend pardons to those who might be charged with crimes. It is a forgiveness of a crime and the cancellation of the relevant penalty associated with that crimes be against the state and/or against another individual. It is usually and mostly granted by the head of state and/or by the acts of Parliament or a religious authority in other countries. To paraphrase further the right given under Article 101(h) of the TCSS 2011, the president can constitutionally pardon anyone, commute sentences or change sentences unless he is thereby impeached.
According to present interpretation of this law, the presidential pardon maybe even if a person has not yet been charged and convicted of any crime either an individual or against the Republic of south Sudan. Thus presidential pardon can be used not only to overturn convictions, but it is also made to shield people whose their hands are thoroughly tainted with blood of innocent people from prosecution. There have been however, numerous presidential pardon decisions that have been in the best interest of most notorious militiamen and renegade military leaders but at the expense of most vulnerable people whose their blood have been split senselessly by useless wars and conflicts waged by those who feel threaten if asked to stand for elections but opted to wantonly kill people so that they are appeased and rewarded with ranks and power to behest orphans of those whom they have killed their fathers unreasonably and with no remorse.
Today, pardons are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise considered to deserve. Pardons are, sometimes offered to persons who are wrongfully convicted or claim that they have been wrongfully convicted. Some believe that accepting such a pardon implicitly constitutes an admission of guilt as pardon does not in other countries like Canada set aside the conviction, so in some cases the offer is refused. But in other countries like south Sudan, cases of wrongful convictions are more often dealt with by an appeal than a pardon unless most grave and have been confirmed by the Supreme Court but a pardon is sometimes offered when innocence is undisputed to avoid the costs of a trial.
As I have alluded to earlier, under the Canadian legal system, a pardon does not erase the fact that an individual was charged and convicted of a crime. The criminal record is not erased, but it is kept separate and apart from non-pardoned criminal records. In United Kingdom, the power to grant pardons and reprieves is known as “Royal Prerogative” of mercy. It was traditionally in the absolute power of the Monarch to pardon an individual for a crime, whether or not he had been convicted and thereby commutes any penalty.
In constitutional law terms, and under the doctrine of rule of law, the power of executive to overrule the Judiciary by commuting criminal sanctions imposed resolves different and sometimes conflicting public interests. In civil matters, only the legislative branch and not the executive have the power to constraint and override judiciary.
In south Sudan, where civility and other pillars of modernization are under battle, the common perception, with regards to pardon is that, this is cute and light-hearted custom of the president, a man whose his heart towards all the people of the Republic of south Sudan is so open-ended to an extent that is unimaginable by taking more seriously not only his constitutional power but also his duty to leave no stone unturned with mercy about wanton destruction of lives and properties. Purposely, amnesty pardon maybe extended when the authority decides that bringing citizens into compliance with a law is more important than punishing them for past offences, this gesture of good will have thoroughly been abused by contumacious thugs of various kind who contumely and naughtily kills innocent and unsophisticated vulnerable people despite the measure to which the president took it on a purpose.
I think too many people acknowledge how generous is the president, who believe that pardoning most fugitive after a war helps heals war wounds and end conflicts no matter what type of war/conflict it was. War does not determine who is right-only who is left. While fundamental laws deterring and against waging war against the state with loose objective are supposed to discourage future traitors during future conflict are left toothless instead of being strictly retained in order to deter future treason and sedition, it makes sense to peace lovers to forgive past offenders after having committed untold atrocities and an unaccountable destruction of properties, had attracted a significant number of militias and other renegade militants who remained in flight from the law.
- Challenges and Controversy.
Amnesty pardon can at times raise questions of justice. A living example is the Ugandan government offer not to prosecute alleged war criminal, the leader of the Lord Resistant Army Joseph Kony, in hope that further bloodshed would be contained and avoided. This trend was too taken up by the government of south Sudan to which an uncountable militants took up arms with mere objectives some even don’t have any cause to instigates wars or conflicts.
It was purposefully done with hope that all militias and other militants would abandon such senseless and unreasonable war which led to too much suffering of our innocent civilians hoping to heal and cleanses old scares and wounds inflicted by those conflicts. It didn’t work; it instead added salt to the already bleeding wound. David Smock noted, “The downside of it is the impunity that it implies; that people can commit atrocities and say that they will only stop if they are given amnesty”, the perpetrators of all sorts of abuses committed during the conflict only fears for his safety by getting assurances and hence welcome back as a prodigal son of the land forgetting about thousands of people who have lost their lives instantly with no just cause.
This is the lay perception of an amnesty pardon in south Sudan given the legality and the constitutionality of pardon under the Transitional Constitution of the Republic of south Sudan 2011, in which the supremacy of the constitution over of any other legislations in the country outweigh and override any penalty carried under sections 64 (1) (a) (b) and (2) (a), (b), 65, 66(a)(b) and 67(1)(a)(b)(c)(d) of the Penal Code act 2008 regarding treason and/or waging war against the state. This has however caused controversy, that among those who see some legitimate use for the power to pardon in some cases, seeing it as being susceptible to abuse if applied inconsistently, selectively, arbitrarily, or without strict, and publicly accessible guidelines.
Controversy also arise towards amnesties given to alleged perpetrators of the most serious crimes of international law or crimes of Jus Cogens which includes crimes against humanity, war crimes, crimes against peace and aggression. The principle of the rule of law is intended to be a safeguard against such arbitrary governance. The rule of law, in its most basic form is the principle that no one is above the law. Thomas Paine stated in his pamphlet ‘Common Sense’ 1776, that “For as in absolute governments the king is the law, so in free countries the law ought to be the King; and there ought to be no other”. So the law is the King and whoever that has come into conflict with the law must face the wrath of the law too.
The history of this article goes back to numerous years in which many conflicts have inflicted heavy loses both materially and humanely, and where numerous presidential amnesty pardons have so far been issued, accepted and violated by those renegades, this is a challenge which need proper study and mechanism to be device so that similar events of the same nature should not occur in the future. You can’t continue giving amnesty or pardon to people who have never accepted the fact that they’re wrong and they have indeed caused a tremendous suffering and death to their fellow South Sudanese.
Amnesty or pardon is/should be given to those who have recognized that their acts have caused destruction to both properties and above all, humanity and that they’re very sorry for what they have done to the people and the country but not to people who thinks and still thinking that he’s innocent and he’s pursuing a just cause.
Why Economic and Political Uprising are civil means to end the Life of the Repugnant and Unproductive Government: The Case of the Government of South Sudan
South Sudanese are indeed a great people. They are people endowed with very strong heart who continuously suffer in dignified silence even when there’s need to rise up in demand for certain rights. This is exactly the situation South Sudanese finds themselves in at a time when their own government should have stood up for them. The economic hardships we’re facing are not less than the economic hardships and situation which caused President Ben Ali of Tunisia to flee, President Ali Abdellah Saleh of Yemen to leave office and fled and great President Hosni Mubarak of Egypt to resign and put under trial up to now.
The causes and conditions of this so-called Arab Spring which almost swept through the Arab world are not less than the economic hardships we’re facing here in South Sudan. Our economic situation is much worse than that of the Arab Spring World. Our unemployment rate is beyond hundred per cent level. Hundreds of south Sudanese goes to bed with an empty stomach. Some are already dead and the rests are on their way to graves. This is worse than that of the Arab Spring. The only difference is that we’re used to enduring hardships of all sorts meanwhile the citizens of the countries where the Arab spring burst aren’t used to this kind of situation.
But the questions many south Sudanese are asking are that; what’s the government of South Sudan really doing? What exactly is the role of the Ministry of finance and Economic Planning? How about the Central bank, what’s its role? Which institution is truly responsible for economic policies and planning? And which institution is responsible for the implementation of national monetary policies in South Sudan? Hard questions a layman like me can’t grapple to answer. But, to answer some questions on matters of facts and law, the Central Bank has its own share of failure for it is the one that is charge by law, to formulate monetary policy, promote and maintain price stability, maintain a stable exchange rate, and maintain sound, efficient and effective banking system.
But the central bank instantly failed in its function to strictly regulate, maintain sound, effective and efficient banking system when it allows all Forex Bureaus and Commercial Banks to commercialize dollar instead of keeping it as a medium of exchange. The Central Bank commercialized dollar, making it an item for trade and not a medium of exchange causing hikes in almost every item on sale in the market. Today, the rate of 1 dollar stood at 10.2 SSP, meaning that one hundred dollar is equal to 10,200 SSP causing inflation rate to shut up to more than 800% something which never happens in any country around the world.
The two institutions, ministry of Finance and Economic Planning and the Central Bank have completely failed us with their weak measures and an untenable modality of strategizing the efficiency of economy. It seems that in South Sudan, everything runs on its own. Traders are selling and raising prices on their own, Central bank floating the rate of the hard currency as it wishes unquestionably. The luckiest rich few are manipulating everything from the Ministry of Finance to the Central Bank to the market at the expense of the downtrodden poor South Sudanese who have no ability or the energy to do anything about it or change the status quo. The authorities both at the ministry of finance and economic planning and the central bank together with their cohorts are responsible for this economic downturn.
We entrusted hyenas with responsibility to look after our goats and sheep. We gave them power to roast any goat or sheep they wish amongst our goats and sheep. This is why this economic turmoil ensued and is the sole reason you can’t understand the head and the tail of who is responsible and who’s not in this country. The country seems to have been left at its own whim to turn its economic downturn into economic boom. We’re convinced that truly our government is indeed boondoggled government. Where’s the Joshua? Or is he the driver of this vehicle that is taking South Sudanese to hell earlier than the days that God planned to take them each at a time.
Let our government know that the root causes of the Arab Spring aren’t more than ours and that Arab Spring may inevitably ensued in this part of the world for we may be forced to violently demand our socio-economic rights to food and decent living like others. We can’t permit others to enjoy live at our expense on resources that belongs to all of us. What a country? If the president can’t think twice to bring in responsible personalities with expertise especially at the central bank, to turn things around, he must be prepared for eventualities for the people of South Sudan will not in any way continue to suffer at the hands of selfish and corrupt leaders who buy their positions at the expense of the people.
There will be time when the people of South Sudan stand up to forcefully demand their socio-economic rights from these oligarchs and mafias. We will surely touch these untouchable mafias and oligarchs who scoop all our money for their selfish enrichment unless they rescue themselves from this shambles. I assure you, economic and political uprising as civil means of ending the life of a repugnant and an unproductive government like the government of South Sudan will be inevitable.
Mr. President, this is a fact. Look at the faces of South Sudanese; listen to their voices on the streets on how they are suffering and you will dismiss this failed leaders who buys their position using public money and weak, lousy and ailing governor of the Central Bank for the danger is haunting you and it will surely reached your gate if you don’t act swiftly.
The writer is a Master of Laws (LLM) Candidate at the School of Law of the University of Nairobi and a Practicing Legal Counsel at Tong & Co. Advocates and a diehard Member of SPLM. The author is a Barrister at Law, and can be reached at email@example.com.
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