The Constitutional Underpinning of the Revitalized Peace Agreement (R-ARCSS) in the Formation of R-TGONU

Who has the Powers under the current Constitutional order to appoint and relieve State Deputy Governor, States Advisors, States Ministers and County Commissioners?

By Wani Michael, Juba, South Sudan

Sunday, February 28, 2021 (PW) — I was puzzled to hear that the Parties to the Revitalized Agreement have intentionally decided to abandoned the core issues of constitutionalism and rule of law in South Sudan, their assumption is that the Presidency can sit and decide on issues related to the agreement including even amending the Agreement or Constitution without due process. Little did they know that there are clear provisions in the Agreement and the Constitution on how to amend these important documents. The Presidency or the Parties has no Constitutional power or mandate to wholesomely without Parliament approval amend the Agreement or the Constitution and if any amendment to these documents happened without the due process, shall be declared null and void.

We shouldn’t create an impression that the President has powers under the current Constitution or the Revitalized Agreement to appoint Deputy Governors, State Advisors, State Ministers and County Commissioners including County Councilors. The Transitional Constitution of the Republic of South Sudan, 2011 (As amended) article 165 (2A) is very clear on who has the powers to appoint the State and local government officials except for the Governor who’s an appointee of the President. We shouldn’t cover ourselves under the pretext of the law that doesn’t exist in the first place and this is dangerous for future constitutional drafting or writing process in South Sudan where an individual has the absolute power to appoint and relieve everybody.

Constitutionally, TCRSS, 2011 (As amended) article 165 (2A) already answered the above question and gave the appointing and relieving powers to the State Governor not the President and it reads;

‘’Provided that during the Transitional Period, the Governor of each State shall appoint and relieve the Deputy Governor, Advisors and State Ministers in consultation and agreement with the President, First Vice President, the four Vice Presidents and the nominating Party in accordance with the State Constitution and the Agreement’’.

I would like to attempt to provide some contextual and clear background to the above specific article in the Constitution;

Firstly, TCRSS, 2011 (As amended) article 165 (2) wasn’t deleted from the Constitution and what the drafters of the Constitutional Amendment Act No.6 did was to insert a sub article 2A immediately after 2 to deal with the Transitional Period arrangements.

Notwithstanding, the powers to APPOINT the above mentioned state and local government officials is the sole responsibility of the Governor in a consultative manner as provided for in the Constitution but not the President. Critically to note, the Governor doesn’t appoint these officials without the consultation and agreement of the Presidency and the nominating Party. The only available powers for the Presidency to exercise relating to this matter and in the current Constitution is to be ‘’consulted’’ on all these appointments by the Governor but the President has no Constitutional authority to decree these States officials.

The Procedural question on these appointments already dealt with under article 165(2A) where the Governors ought to consult with the nominating parties first based on their responsibility sharing ratio in the Revitalized Agreement and also the Parties agreement on the State and local government responsibility sharing allocation document that became an addendum to the Agreement. For instance; if Ministries in Central Equatoria State were allocated to the Sudan People’s Liberation Movement-In- Opposition (SPLM-IO), The Governor of Central Equatoria State ought to write to the Party seeking their nominations to the various Ministries. The SPLM-IO will officially write to the Governor indicating their list of nominees to the different Ministries. The Governor will then consolidate his list of nominees to different Ministries by including all the other Parties to the Agreement nominees. The Governor is then required to share his or her list with the Presidency for final consultation and agreement before announcing his or her Cabinet.

The notion advanced by some few that the Governors will generate their own list of nominees is not true because the Constitution is clear that the list of nominees originates from the Parties themselves not the Governors. The Governors are only going to ensure that the responsibility sharing in Peace Agreement is adhered to by the Parties. Ordinary, the Governor is the Head of Executive, Head of Security and Political head in the State as provided for under TCRSS, 2011 article 165 (2) and he or she represent the Presidency or the National Executive at the State level. The Governor is the only Executive person in the State who reports directly to the Presidency not any Deputy Governor, State Minister, Advisor or County Commissioner.

There’re available remedies for RTGONU to justify that the Governors has the Constitutional powers supported by the Revitalized Agreement to appoint and relieved Deputy Governor, State Advisors, State Ministers and County Commissioners. These remedies include the following; –

Devolution;

The Revitalized Agreement exclusively emphasized the need for RTGoNU to devolve more powers and resource to the States and local government. This is provided for under the RARCISS article 1.2.15 ‘’The RTGONU shall devolve more powers and resources to the State and local government’’. This is an absolute fundamental and mandatory function of the RTGONU to devolve power but not to centralized it as the case now. The framers of the Agreement were very clear and gave those unquestionable instructions to the government to devolved power but instead they’re doing the opposite.

To fulfill this central requirement in the Agreement, the Constitution already provided clear provisions on the issue of devolution under TCRSS, 2011 (As amended) article 48 that demands the National Government to devolve powers and resources to the State and local government units. Additionally, the Constitution under article 1(4) ‘’South Sudan is governed on the basis of a decentralized system of government’’. The Constitution has already given us a clear instruction on what system the government should operate on and that system is a decentralized by devolving more powers to the States and the local government. Also, under both the Constitution and the Revitalized Agreement preamble ‘’cognizant that a federal system of government is a popular demand of the people of the Republic of South Sudan and the need to reflect this demand by way of devolution of powers and resources to the lower levels of government’’.

The Presidency ought to use this available card of devolution to rule out the possibility of the President appointing these officials because this will be purely centralization of power and not longer devolution as provided for in the Revitalized Agreement. Little did they know that TCRSS, 2011 (As amended) article 165(2A) wasn’t repealed and still holding and functioning.

Does the States have Constitutions to operate on?

The answer is yes, the Constitutional Amendment Act No 7 already dealt with that issue. Remember, one of the sticking issue carried forward from the Peace talks into the Pre-Transitional Period was the issue of the number of States and boundaries. The ITGONU agreed to revert the Country back to the ten (10) States Constitutional dispensation and created some more two administrative areas too, thus necessitated the amendment of the Constitution to incorporate the changes from 32 States to 10 States with all their Constitutional instruments before the amendment in 2015.

Nevertheless, the preachers of the unconstitutionally act by the President forgot that the powers to appoint these State and local government officials already given to the Governors by the Transitional Constitution of the Republic of South Sudan, 2011 (As amended) not the State Constitutions. Thus, the Revitalized Agreement already fully incorporated into the Constitution as provided for under RARCISS article 8.2. that gave us the Constitutional Amendment Act No.6.

There’s also this narrative by some people that since the State Constitutions are not amended to conform with the TCRSS, 2011 (As amended) under article 161 (2) ‘’the constitutions of the states shall conform to TCRSS, 2011 (As amended)’’. There’s no way the Governors can appoint these State and local government officials, little did they know that the Governor appointing powers already exist in the National Constitution under TCRSS, 2011 (As amended) article 165(2A). Another aspect of that article they’ve refused to talk about is the demand by the Constitution that the Governors appoint these officials ‘’in accordance with the Revitalized Agreement’’ because the responsibility sharing for both states and local government is found in the Revitalized Agreement under RARCISS article 1.16.1, 1.16.2 and 1.16.3 respectively but not the State Constitutions.

Supremacy of the Agreement over the Constitution.

The internet and so many people continue to argue that the Revitalized Agreement is superior to the Constitution and therefore, it supersede the Constitution. This argument is correct but the defenders of this unconstitutional act by the President failed to tell us which article in the Agreement conflicts that of the Constitution in appointment of Deputy Governors, State Advisors, State Ministers, County Commissioners and County Councilors for the agreement to prevail.

RARCISS article 8.2 reads ‘’The Revitalized Agreement shall be fully incorporated into the Transitional Constitution of the Republic of South Sudan, 2011 (As amended). Notwithstanding this process of incorporation, the event that the provisions of the TRCSS, 2011 (As amended) conflicts with the terms of this Agreement, the provision of the Agreement shall prevail’’.

The Agreement uses the word in an ‘’event’’ there’s a conflict between the Constitution and the Agreement but in this case there’s absolutely no conflict for the Agreement to prevail. This is because the Constitution has expressive article 165(2A) on whose power to appoint the State and local government officials whereas the Revitalized Agreement is absolutely silent about it apart from the appointment of the Governors by the President under RARCISS article 1.9.6.1.4. Where does the conflict arises from? What are the conflicting articles for the Agreement to prevail over the Constitution? Beside, the Agreement is clear that in an ‘’event’’ a conflict between the Constitution and the Agreement arises but at this point there’s absolute no such ‘‘event’’ because the Agreement is silent about it whereas the Constitution has spoken strongly about it. We shouldn’t just say for the sake of saying the Agreement supersede the Constitution without pointing out the conflicting issues.

It is important to note that the Agreement did not amend the whole chapters or all articles in the Transitional Constitution of the Republic of South Sudan, 2011 (As amended). It was an incorporation of the Revitalized Agreement into the Constitution but not writing of a new Constitution, The National Constitution Amendment Committee (NCAC) only amended affected articles in the Constitution brought by the Agreement. Notably, any article in the Constitution not affected by the provisions of the Agreement wasn’t touched but to deal with the Transitional period arrangements, there was creation of other sub-articles to accommodate those issues and sub-article 165(2A) is one of them.

In conclusion, The Agreement is silent whereas the Constitution has already cleared the way for such appointments and gave the appointing powers to the Governors. What the Presidency ought to do now is to withdraw these appointments and allow the Governors to reconstitute their own cabinet but not the unconstitutional grabbing of power by the Presidency. It is also important to remind the Presidency that they took an Oath of Office to uphold and defend the Constitution of the land. The public shouldn’t judge them as violators of the Constitution, they should redeem themselves and do the needful by following the text of the Constitution.

The author, Wani Michael, is the Youth Representative- National Constitution Amendment Committee (NCAC), and a Staunch defender of the Constitution.

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