The legality of the replacement of Dr. Riek Machar by H.E. Gen. Taban Deng Gai
By Cde. Deng Gai Gatluak, Juba, South Sudan
December 28, 2017 (SSB) — It’s incontrovertible that, a substantial number of South Sudanese have been persistently interpreting the Agreement on the Resolution of Conflict in South Sudan (ARCSS) in a manner that suits their political, communal and individual interests. Consequently, for the sake of public consumption, I saw it wise to drop a few lines with regards to the legal interpretations of the ARCISS.
According to article 1.3 of the ARCSS, it is clearly stipulated that “the seat of the Transitional Government of National Unity (TGONU) shall be in Juba, the capital city of South Sudan.”
On that note, it is indisputable that, the genesis of Dr. Riek Machar Teny (RMT)’s exit from Juba, was the fact that, he staged a coup in the presidential palace (J1) on 8th July 2016 and subsequently left Juba when he was defeated, dislodged and humiliated by SPLA forces all the way to Congo and afterwards ended up on a political detention in Pretoria, South Africa.
Hence, the question that repeatedly rings in my mind is that on what basis does his supporters expect him to operate in Congo or South Africa as the first Vice President and yet the throne of the TGONU is perhaps in Juba? On top of that, he publicly proclaimed war against the TGONU and declared the ARCSS dead.
Then, how do they expect him to serve in a TGONU that he declared war against while in exile and yet the position of the First Vice President was meant to operate under the jurisdiction of the TGONU?
To shed more lights on this, article 6.4 of the ARCSS stipulated that, “in the event that the post of the First Vice President falls vacant during the Transitional period, ‘for any reason; including mental infirmity or physical incapacity of the office holder, the replacement shall be nominated by the top leadership body of the South Sudan Armed Opposition as at the signing of this Agreement. Such a process of replacement shall not exceed forty-eight (48) hours.
The successor as the First Vice President shall serve in office until the end of the Transition period.” On that note, Dr. Riek Machar left Juba in July 2016 after staging a coup in J1. Thus, the fighting that broke out in J1 on 8th July 2016 justified his exit and qualifies the legal interpretation of the expression “for any reason” as stipulated in article 6.4 of the ARCISS.
To elaborate more on this article, the locution that, “the replacement shall be nominated by the top leadership body of the South Sudan Armed Opposition as at the signing of the Agreement.” is explicitly clear. Thus, the top leadership body, in this case, is undoubtedly the SPLM-IO political Bureau and this was the same body that endorsed H.E. Gen. Taban Deng Gai in Juba.
On top of that, it’s worth mentioning that, 80% of SPLM-IO senior Political Bureau members remained in Juba with Gen. Taban Deng Gai, and to mention but a few are those of Hon. Alfred Lado Gore, Hon. Hussein Mar Nyuot, Dr. Dhieu Mathok Diing, Hon. K. Mulla and Hon. Ezekiel Lol Gatkuoth.
Nonetheless, article 6.5 of the ARCISS stipulates that “in the event of temporary absence of the First Vice President, the FVP may delegate a senior South Sudan Armed Opposition Minister to carry out functions and duties as stipulated in the Agreement.”
However, in a layman understanding of simple English and not necessarily legal interpretations, the phrase, “a senior South Sudan Armed Opposition Minister” is extremely ambiguous and not definite to a certain hierarchical order in this context.
Thus, what is the legal basis for the presumed notion that the vacated first Vice President’s portfolio would have been occupied by Hon. Alfred Lado Gore as per the hierarchy of SPLM/A-IO?
I guess the literal understanding is that Alfred Lado Gore was the deputy chairman to Dr. Riek Machar, then by default, he would have been the one to occupy the seat. However, little did the staunch supporters of Dr. Riek knows that it is a common law principle that, “ignorance of the law is not a defence.”
Article 6.4 read together with article 6.5 didn’t mention anything to do with the deputy chairman to occupy the post of the Chairman in an event of a temporary absence, although the absence of Dr. RMT wasn’t temporary though.
In addition, Dr. Riek didn’t exit Juba on a mission or on temporary basis as stipulated by article 6.5, where he was supposed to delegate his duties and responsibilities to “a senior” member of SPLM-IO which was not necessarily his deputy, but he left Juba because of the fighting that broke out in J1.
However, in terms of the seniority of SPLM-IO Political Bureau, which is the highest leadership body, it’s worth mentioning that, Gen. Taban Deng was the Chief negotiator, head of the advance team, former governor of Unity State and a member of SPLM Political Bureau prior to 2016 conflict.
Therefore, his political biography undoubtedly qualifies him for, “a senior” member of SPLM/A-IO as provided for by article 6.5 of the Agreement. Okay fine, if Dr. RMT was supposed to delegate a senior minister of SPLM/A-IO after he left Juba, did he exercise that prerequisite within 48 hours as provided for by the Agreement?
Of course a big NO.
The author, Cde. Deng Gai Gatluak, is a member of National Dialogue Steering Committee (Secretariat), the Chairman of SPLM-IO Youth League-TGONU and a Law lecturer at Starford international University (SIU) in Juba, South Sudan. He obtained Master of Laws (LL.M) from Girne American University (GAU), Cyprus (2017) and holds a Bachelor of Laws (LL.B) from Cavendish University Uganda (CUU), (2014). You can reach him via his email: denggaigatluak@ymail.com
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