Of the 32 States, the Transitional Constitution, R-ARCSS, and Extra-Legal Considerations
By Mading Gum, Juba, South Sudan
Tuesday, 14 January 2020 (PW) — This piece arises from the heated debate regarding 32 states on two sides. On one side are those who hold the view that 32 states are constitutional, both in their manner of constitutional creation, their practical operation, and because people popularly demand them. On the other side are those who argue that the 32 states are unconstitutional under the 2011 South Sudan constitution and on that basis (including an IBC failed voting threshold of 7 of 10), a return to 10 states is justifiable until the end of transitional period. I argue that both premises are constitutionally invalid and should be disregarded in a strict legal analysis. As shown below, three grounds independently show why neither of the side’s constitutional interpretation is correct.
First the 2011 constitution is superseded by Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS). On September 12, 2018, parties signed the Agreement (R-ARCSS) and Article 1. 15 addresses itself to the issue of Number and Boundaries of States. The Agreement tasks an Independent Boundary Commission (IBC) to address the issue. If the Commission fails (and it did fail) to make a final report on the issue within its given timeframe, the Agreement reads, it would be automatically transformed into a Referendum Commission on Number and Boundaries of States (RCNBS). The Agreement even tasks the African Union and IGAD to supervise and support the referendum.
Further, the Agreement in Chapter VIII under Article 8.2 states that “notwithstanding this process of incorporation, in the event that the provisions of the TCRSS, 2011 (as amended) conflicts with the terms of this Agreement, the terms of this Agreement shall prevail.” Whether you belong to the constitutional battalion or unconstitutional brigade, the correct legal framework governing states and their boundaries is R-ARCSS (and not the 2011 constitution) and R-ARCSS provides procedures for resolving number and boundaries of states. Thus, it is pointless to argue constitutionality/ unconstitutionality of number of states under the 2011 constitution when it is displaced and replaced by R-ARCSS_ the Grundnorm in the Kelsen’ sense.
Second, the issue of number of states and boundaries is an essential element of the constitution that can only be disposed through the exercise of constituent power, that is, power vested in the people. The Presidential Order was unconstitutional, both in Kelsen’s Grundnorm context and Carl Schmitt’s notion of constituent power because dividing states and boundaries require the participation of the people_ those possessing the sovereign power under Article of 2011 constitution.
In 2009, the German federal constitutional court, Bundeverfassungsgericht annulled Germany’s accession to the Treaty of Lisbon on the basis that it was one of the “essential elements of the constitution” that cannot be disposed through legislative, executive or judicial bodies but only through the exercise of constituent power. Other essential elements of the constitution that cannot be touched except by exercise of constituent power is the “Lander (states in our context) as constituent states within the federal state” of Germany.
Here, too, issues that fundamentally affect the essential elements of the constitution require people’s participation. Therefore, issue of states and their boundaries is an essential element which neither the executive, legislature nor judiciary can alter but the “people.” The framers of R-ARCSS, top constitutional lawyers in the region, were conscious of the constituent power vested in people and that is why R-ARCSS places the ultimate solution in the outcome of the referendum.
Third, the feasibility of conducting referendum under the current circumstances is an extra-legal consideration. It is true that over three million South Sudanese are in the refugee camps, thousands internally displaced, empty state coffers, and security factors. Yet, these considerations are outside R-ARCSS’s blueprint for resolving number of states and their boundaries. Making these extra-legal considerations the basis for either a return to 10 or 21 states would be throwing the matter to the vagaries of politics and a clear violation of R-ARCSS.
The suggestions, by Dr. Luka Biong, that parties should adopt one of the three options, namely, (1) a return to 10 states because the failed voting threshold 6 to 4 votes was a majority and that 10 states are fiscally and financially affordable, (2) temporary adopt 10 states and prepare for referendum, and (3) adopt 23 states plus Abyei because they have clear boundaries dating the independence of the Sudan on January 1, 1956 are abhorrent to R-ARCSS, facts, and history and should therefore not be countenanced.
The three options conveniently ignore three important things. The first option ignores the fact that an IBC failed voting threshold of 6 to 4 can never be constitutional in any school of thought or statutory cannon to justify its use. The outcome is void without legal effect in all senses. Further, fiscal and financial affordability is a myth. Without the unrestraint dissipation of national coffers, South Sudan would fund states a way higher than 50.
Two, to temporary adopt 10 states and prepare for a referendum is like resurrecting a dead body and later decide whether to bury it again or pray Jesus brings it to life. The closest reasonable option is to maintain the 32 states (because they are alive) and subject the issue to referendum within the next 6 months. Third, Biong also conveniently ignores the historical fact that the former 23 districts never actually had clear-cut boundaries and have been never free
Anything less than following R-ARCSS (Annex E and Article 1.15.17.8) should be disregarded in a strict legal analysis of 32 states. Leaving the matter to the vagaries of politics would eviscerate R-ARCSS, both in letter and spirit. Whether to subject the matter to referendum now or delay it depends on extra-legal considerations, which should be outside the legal conversation.
The author, Mr. Mading Gum (LLB, LL.M, Dip. LP) is the Managing Partner, Mading & Co. Advocates, and Law Lecturer (University of Juba School of Law). He can be reached via his email: Mading Gum <madinggum@gmail.com>
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