Why both Dr. Santino Ayuel Longar and Dr. Lam Akol are wrong in their arguments for and against the legality of 32 states in South Sudan

By Daniel Juol Nhomngek, Kampala, Uganda

Monday, January 06, 2020 (PW) — Note: before I proceed to give the reasons of my arguments against two Doctors, I would like to stress that though I disagreed in my arguments with them, I do that with the utmost respect as I don’t question their expertise in their respective areas of specialization. Having said that let me now proceed with commentary on the two Doctors’ arguments. It was in the past week when I came across a debate cropped up between two Doctors: Dr. Santino Ayuel Longar, Ph.D. and Honourable Dr. Lam Akol, the South Sudanese elder and the politician on social media. Their debate and arguments dealt with the legality of the 32 new States of South Sudan. The two Doctors presented different views over the issues surrounding the creating, number and the boundaries of 32 States.

Thus, whereasDr. Santino Ayuel Longar, Ph.D. dealt with some issues that he claimed to have been ignored or overlooked by those who oppose the legality of 32 states i.e. the issue of the formation of 32 States as not being political as it had been understood but rather legal and constitutional since the “process that led to the formation of the 32 states, was indisputably constitutional.” Dr. Santino Ayuel Longar, Ph.D. built on the issue of legality of the creation of states went on to deal with the cause of creation of new states which attributed to it being a popular demand. He hinted that since it is popular demand that led the President to issue the Order in creating 32 States which was later endorsed by the Parliament, the process of creating those states therefore became constitutional and legal, which is now  beyond politics. Neither the government nor the opposition has any power to interfere with the matter and because of that it should be left to the people of South Sudan through popular consultation to decide on the issue. He then warned that as Dr. Lam Akol put it in summary that any attempt to resolve the matter by doing away with the 32 states was not only contrary to the popular demand but a violation of the Peace Agreement itself.

Dr. Santino Ayuel went further to criticize and dismiss the argument by those who oppose 32 States that if it is not possible for South Sudan to go back to ten states as it previously had, then it should adopt structure of the Former Colonial Districts to create more states as Dr. Riek Machar did in 2014. Dr. Santino Ayuel then completely disagreed with those who put this argument forward in the following words—“decisions made more than 60 years ago by colonial authorities who’d nothing but vested colonial interests at heart” cannot benefit the contemporary South Sudanese communities. Some other issues he dealt with in that article are not contentious as the ones I have just summarized and because of that I will not dwell on them in length in this article.   

Dr. Lam Akol in his article published on southsudannation.com (forwarded to this website by Mr. Karlo Adyejak) and published on JAN/03/2020.  The article is entitled: the Unconstitutionality of the 32 States: A Response to Dr. Santino Ayuel Longar. In his arguments in response to Dr. Santino Ayuel that article, he made a proper use of provisions of the Transitional Constitution of the Republic of South Sudan, 2011, which makes his work very authoritative and many who are non-lawyers and who are not trained in the interpretation of the Constitution could easily agree with him including his conclusion. 

In other words, Dr. Lam Akol’s  arguments, which I legally agreed with most of them are very authoritative and clearly illustrated that the action of the President of South Sudan in creating 32 States was illegal as it is inconsistent with the legal procedures to be followed in creating additional states as laid down in the Constitution of South Sudan. He then concluded that—The illegality and unconstitutionality of creating 28 and later 32 states are unquestionable. The Peace Agreement sought to resolve the issue of the number and boundaries of States in a particular manner through the IBC. The Parties committed themselves to abide by the recommendation of the IBC. Hence, the government and its apologists should desist from insisting that the option of 32 States is a sacred cow. Such a state of mind is inconsistent with the letter and spirit of the Peace Agreement.

Having made a brief summary of the arguments on both sides, let me now proceed to put forward my arguments in disagreeing with two reputable South Sudanese Doctors beginning with the arguments of and the conclusion reached by Dr. Santino Ayuel Longar, Ph.D in some aspects as explained below—

Why Dr. Santino Ayuel Longar Is Wrong Though He Reached a Correct Conclusion

With due respect, I would like to state onset of this response to Dr. Santino Ayuel Longar, Ph.D. that most of his arguments in support of legality of 32 States are fallacious. They are fallacious in a way that Dr. Santino Ayuel Longar into error when he denied that the creation of 32 States was not political. In making this point, it appears that the Dr. only looked at the matter purely on point of law and tried to force the political issues into the rubber band of legal notes.  

In doing that he completely ignored the political aspect involved the creation of 32 States which is very unfortunate. The error might have originated as he would have made analysis based on the law making powers of the President as provided for under Article 101 (f) of TCSS. This article gives the President legislative powers to make laws in form of decrees and as well as initiating the new laws to be passed by the Parliament. Hence, Article 101 (f) provides— to initiate constitutional amendments or pieces of legislation which, if normal parliamentary procedures are followed, can be duly passed into law by the National Legislature with the assent of the President. Construed as such, the Order, which originated the parliamentary process that led to the creation of 32 states, was indisputably constitutional.

The failure of Dr. Santino Ayuel Longar to make coherent argument is the fact that he did not address his mind to the rules governing the interpretation which provides that the constitution should always be read as a whole.  Had he read Article 101 (f) on the powers of the President together with the Article162 of the TCSS 2011 as Dr. Lam Akol later cited in his argument, Dr. Santino Ayuel Longar would have discovered that the Article162 vests exclusive powers in the Council of the States in determining the questions in respect to the number and boundaries of the States in South Sudan. Thus, Article 162 provides—

(1)The territory of South Sudan is composed of ten states governed on the basis of decentralization.

(2)The constitutions of the states shall conform to this Constitution. (3)State boundaries shall not be altered except by a resolution of the Council of States approved by two-thirds of all members. (3)Names of states and their capital towns shall not be altered except by a resolution of the Council of States approved by a simple majority of all members on the recommendation of the relevant state Assembly.

The use of the phrase shall not be altered except by a resolution of the Council of States approved by two-thirds of all members in Article 162(3) gives us understanding that it is imperative or mandatory meaning that no any other person has authority to initiate the alteration of the number and boundaries of the states. In addition, the use of a resolution of the Council of States approved by two-thirds of all members gives us understanding that the initiation by a resolution of the Council of States approved by two-thirds of all members in Article 162(3) is to be done by Council of States but not any other body.

Moreover, had Dr. Santino Ayuel Longar addresses his mind to Article 83 on the Tabling of the Bill and read it together with Article 162(3), he would have understood that Article 83(1) provides for the appropriate procedure the President should have followed in seeking for alteration of the boundaries of ten states and eventually creating additional twenty two States but not himself to alter the boundaries and also create 32 states.  The procedure as provided in Article 83(1) imposes the duty on the President to follow the lawful procedure if he wanted to increase the number of states. In that way, the President should have caused a bill to be presented before the Council of States.

In that respect, the Procedures for Presentation and Consideration of Bills are further provided under Article 84 (1) – (4) of the TCSS, 2011. These provisions provide that Bills presented to either House of the National Legislature shall be submitted for all readings up to the point of President assenting it which will turn it into law as provided under Article 85.  In the present case and in accordance with article 162, the right body with jurisdiction to determine the Bill in regard to the alteration and creation of 32 states is the Council of States.

Though Article 101 (f) of the TCSS, 2011 makes Presidential decrees as a general rule, by the fact that the decree passed under this Article are laws and the law also allows the President to initiate constitutional amendments and legislation and assent to and sign into law bills passed by the National Legislature, Article 162 of the TCSS, 2011 denies the President any power to initiate the amendment of the Constitution in respect to the alteration of the boundaries of the States and their number. It therefore implies that if the procedures laid down under Articles 83, 84 and 85 are not followed by the President but just issue the decree to give effect to the creation of 32 States, then the issuance is done in contravention of article 162 of the TCSS, 2011 and it is therefore illegal.   

As it can be understood in the above arguments, failure to follow the mandatory constitutional procedures in altering the boundaries and increasing the number of States makes the whole procedure undertaken by the President illegal in light of constitution of South Sudan and political in term of conditions surrounding the making of 32 States. Upon that conclusion, it means that the argument of Counsel Dr. Santino Ayuel Longar that—while it is true that the Order was the catalyst, the ultimate establishment of 28 States in 2015 (and later 32 states) was a result of due parliamentary process, not by the operation of the Order. This was evidenced by the fact that what followed the Order was not the operationalization of 28 states but a parliamentary debate and voting process. Both processes were consistent with the requirements of the relevant constitutional provisions.

The foregoing argument of Dr. Santino Ayuel Longar is erroneous because the President did not follow legal procedure under the law to make the process Constitutional and legal. Though Learned Counsel Dr. Santino Ayuel Longar attacked the arguments of those who oppose 32 States as being technically inaccurate to characterize the question of states as inherently political; presenting it as a political issue, it seems, organically arises from a mistaken belief that since the creation of more states in 2015 was a result of the Presidential Executive Order #36 (the Order), the same executive instrument should be devised to alter their number and boundaries, he is rather the one who is technically inaccurate in his arguments to characterize the creation of new states and the question that arises out of it as not being inherently political.

The Learned Counsel Dr. Santino Ayuel Longar might have fallen into error by failing to address his mind to the history that led to the creation of more states in 2015 originated from the political decision of the Leadership of SPLM-In-Opposition, Dr. Riek Machar. According to Sudantribune, December 31, 2014 (ADDIS ABABA) Dr. Riek Machar in a separate order dissolved the current 10 states in South Sudan and created 21 federal states mainly on the basis of the former old districts, which were created by the British colonial administration. For more information, read the article entitled South Sudanese rebels establish military command, create 21 states published on Sudantribune (https://www.sudantribune.com/spip.php?article53509).

The 21 states that were created by Dr. Riek Machar were as follows— 1) Fashoda State, 2) Adar (North East Upper Nile) State, 3) Sobat State, 4) Lich State, 5) Jonglei State, 6) Bieh State, 7) Phow State, 8) Pibor State, 9) Kapoeta State, 10) Imatong State, 11) Central Equatoria State, 12) Yei River State, 13) Mid-West Equatoria State, 14) Western Equatoria State, 15) Warrap (Tonj) State, 16) Lol State, 17) Lakes State, 18) Rumbek State, 19) Northern Bahr El Ghazal State, 20) Wau State And 21) Western Bhar El Ghazal (Raga) State.

As it can be understood from the above paragraph, the decision of Riek Machar was political one as he did not follow the procedures for creating New States in the TCSS, 2011. It means that if Dr. Riek was successful militarily against President Kiir, he would have imposed 21 States on the citizens whether using the procedure undertaken by President Kiir to present them for the Parliamentary approval or using the military order to get the order implemented in the country. 

The above political order from Dr. Riek led to the political order from President Kiir. The origin of 28 states came from the fact that after creating 21 States, Dr. Machar then went on to operationalize them by appointing military governors who were: Lieutenant-General Johnson Olony Governor of Fashoda state, Salah Momogi Mameri Koni in Raja, Brig Gen Koang Rambang Chol in Bieh state, Brig Gen.Tor Tunguar Kueiguong (Liech), Lt.Gen Ruai Kuol Jal (Liech state), Lt.Gen Koang Gatkuoth Kerjok (Bieh state), Lt. Gen Sadam Chayout Manyang (Adar state), Maj. Gen Jokuino Fidel Nyikayo (Fashoda state) and Brig Gen Dhahya Ahmed Faraheldor of Raja state.

It should be noted that the procedures followed in creating all 32 States as clearly argued by Dr. Lam Akol in his article and as I have also explained above was just politically motivated since it was contrarily to the Constitutional procedures. This defeats the argument of Learned CounselDr. Santino Ayuel Longar that the creation of 32 States was constitutional and its legality cannot be questioned. As a lawyer, he clearly knows that anything done in contravention of the existing law or its procedure is illegal so the procedure undertook by President Kiir in creating 32 was originally is illegal though it was later cured by the Parliament as I shall support this assertion later in this article.

 Having declared to be illegal, it was therefore a political. The President issued the decree outside the Constitutional Provisions which made it unconstitutional and mere political decision backed by an administrative order. The administrative order is supposed to be subject to parliamentary approval (https://radiotamazuj.org/en/article/kiir-and-makuei-want-28-states-s-sudan Makuei affirmed). We can go on and on but the point is that the assertion by Learned CounselDr. Santino Ayuel Longar that the creation of 32 States was Constitutional and legal but not political is just based on manipulated facts to suit the legal arguments.

On the other issues: first of Former Colonial Districts, which some people argue that they should have been the basis of creating new states, the consistency of the creation of 32 States with the Agreement and economic viability of the 32 States, I cannot say much as I have agreed with most of his arguments except at the point he fell into error when he makes general assumption that the legality of the 32 States is recognized by the Peace Agreement. The fact that the body to deal with the number of States and their boundaries is provided for under the Agreement shows that there are very serious legal and political issues to be determined which means that their legality of the 32 States is still in question.

To conclude on this part, I must say that the arguments of Learned CounselDr. Santino Ayuel Longar in support of the legality of the creation of and the existence of 32 states are erroneous as I have already labored to point out in the foregoing discussions. His denial of the process of creating 32 States as not being political is wrong. This shows that he ignored the fact that their origin was political and their survival is being shaped by politics though the issues are being legally fashioned in form of the Peace Agreement. Having responded to Dr. Santino Ayuel Longar, let me now turn to respond to Dr. Lam Akol’s response to his article.

Why Dr. Lam Akol Is Correct in His Arguments but Wrong in His Conclusion

As I have stated in the summary of the arguments of the two Doctors that in term of legal arguments, Dr. Lam Akol has made more persuasive arguments than Dr. Santino Ayuel Longar. Dr. Lam Akol cited right Authorities to back up his arguments that the creation of 32 States was done illegally which I agree with him to a greater extent.  For instance, he proved beyond reasonable doubt that the action of the President was illegal as it was inconsistence with Articles 59 (g) and 162, paragraphs (3) and (4) plus other provisions of the Transitional Constitution of South Sudan (TCSS), 2011 he referred to in his article.

His argument are right because the President did not follow the legal procedure as I have already pointed out above. Dr. Lam Akol clearly proves that Order number 4 of the ‘Establishment Order No 36/2015’ purportedly establishes 28 states is contrary to the provision of Article 162 (1) of the TCSS, 2011. In putting forward that argument, he is therefore legally correct by stating that Order number 4 amounts to an amendment of Article 162 (1) of the Constitution without complying with the constitutional procedure of amendment.

Dr. Lam Akol further correctly points out that for Order 4 to be valid, it must be issued in accordance with the Law or it must be issued in the manner consistent with the Constitution. This was not the case as the Order was issued in contravention of Article 162 and other Articles that I have already referred to above in determining the alteration of the number of States and their boundaries. Hence, as he correctly concluded, the issuance of the ‘Establishment Order’ without following legal procedure is an abuse of the powers of the President.

In short, Dr. Lam Akol in his arguments based on the provisions of law he cited in support of his arguments is correct to a greater extent. Nonetheless, he failed to read the constitution as a whole which made him also reach wrong conclusion though he made a lot of correct arguments.  Had Hon. Dr. Lam addressed his mind to the implications of Article 93 of the TCSS, 2011 he would have realized that all his arguments would have been accepted by court had he taken the case to the Court before Parliament endorsed it.  

After the Parliament deliberated over the order and decided to pass it into law then the action of creating 32 States became constitutional and legal by the virtue of article 93 of the TCSS, 2011. Article 93 provides—

No court or any other authority shall call into question the validity of any proceedings of the National Legislature or any of its two Houses on the basis of violation of its Conduct of Business Regulations. A certificate duly signed by the appropriate Speaker shall be deemed to be conclusive evidence of the validity of the said proceedings.

The business of Parliament as mentioned in Article 93 simply means what the Parliament does when it is in session. When it is in the session, the Parliament do the following— taking evidence from witnesses in case of investigations, following the process of passing a Bill and other activities concerning the Parliament, approving the actions of the President and summoning any person falling within its jurisdiction for explanation in response to the allegations made against him or her.

Dr. Lam Akol also fell into error when he wrote: It is difficult to comprehend how the learned Lawyer could sanction a constitutional amendment meant to ‘legalize’ a violation and calls that “the effecting instrument”. It is common sense that laws cannot be applied retroactively. For the author to claim that “the Order in and of itself did not eventuate in the establishment of 28 States in 2015” is contrary to the above established fact. It is difficult to comprehend how the learned Lawyer could sanction a constitutional amendment meant to ‘legalize’ a violation and calls that “the effecting instrument”. It is common sense that laws cannot be applied retroactively.

The law canbeapplied retroactively in other instances.  Whereas retrospective criminal laws are prohibited but several noted legal authorities have stated their opinion that parliamentary sovereignty takes priority even over retrospective application of law.  For example, the War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during the Second World War. Another important example of a case which shows the doctrine of parliamentary supremacy in action is Burmah Oil Co Ltd v Lord Advocate, which retrospectively changed the law on compensation resulting from scorched earth actions in Burma during the war. The Parliament has all power to adopt retrospective application of the law that they pass and therefore the law can be challenged on that ground.

The overall arguments which two Doctors did not address their minds to, is that: when the President presented or caused Order 4 creating 28 States to be presented in the Parliament, he without knowing it cured the illegality that tainted the procedure and order creating those states. In that angle, no court or any other authority shall call into question the validity of any proceedings of the Council of States that led to the confirmation of the creation of 28 States as the process becomes legal by virtue of Article 93.

It needs another legal procedure such as referendum to change. It is no longer political matter to be reversed as it becomes part of constitution and if the President reverses 32 states he will be in breach of Article 162 with other articles I have already referred to above. It is only the Council of State who can now change the new constitutional order of 32 States.

Conclusion

Though the creation of 32 States was illegal and unconstitutional, the fact that the Council of States endorsed it through the Constitutional amendment process legalized the procedure and the legal status of 32 States. It goes to say that any person who is aggrieved must challenge not the procedure of making that amendment but the constitution of the parliament when the Constitution was being amended. It implies that the arguments should only deal with the quorum and attendance other than the matters to do with the powers of the President. Whether the President has powers to amend the constitution should be for another day and another issue as those arguments are overtaken by events in the present case.

 Daniel Juol Nhomngek is a lawyer by profession holds LLB from Makerere University in Kampala, Uganda. He is not called.  He is currently working with M/S Ibaale, Nakato & Co.   Advocates, P.o Box 26781, Kampala, Uganda. His research, he is interested in teaching and law practice I the area of criminal law, international human rights law and the law of armed conflicts, public international law, administrative law, Equity and Trusts, constitutional law, Jurisprudence or political philosophy, legal methods and theory,  legislative drafting and judicial practice; and law & public policy. For any comment please reach the authority through any one of the these email addresses: juolmarialdit@gmail.com or juoldaniel2003@gmail.com

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