An Open Letter:
Dear President Kiir, Dr. Machar, Former Detainees and Parliamentarians:
Following the announcement on October 2nd of Presidential Order No 36/2015 for the creation of 28 states in the Republic of South Sudan instead of the existing 10 states as provided for in the Transitional Constitution of South Sudan (TCSS) 2011 (amended 2015), multiple civil society organizations noted that the Presidential Order was not lawful under the Transitional Constitution and the recently signed Compromise Peace Agreement (CPA*).
Parliament met on November 20th and granted such powers but without meeting the constitutional requirements of 2/3 of the members of each house of parliament approving. Article 197 of the constitution requires an approval by a vote of “two-thirds of all members of each House of the National Legislature sitting separately.” This article was not followed. Instead, members of the two houses met jointly to overcome the lack of the required numbers in the Parliament. This action raised great concern among many South Sudanese citizens.
Moreover, the binding CPA* – that was recently signed by both President Kiir and Dr. Machar, and subsequently endorsed by the National Legislative Assembly – clearly stated that the CPA is based on the current 10 states and will prevail over TCSS 2011 in an event of conflict of the two documents.
“This agreement shall be fully incorporated into the Transitional Constitution of South Sudan 2011(TCSS) as per the procedure outlined in Chapter I, Article 4 of this Agreement. Notwithstanding this process of incorporation, in the event that the provisions of the TCSS conflicts with the terms of this agreement, the terms of this Agreement shall prevail.”
Thus the action taken by the President to establish 28 states and the efforts by the National Legislature to support the President both were in violation of the Constitution and invalid. The Compromise Peace Agreement, which was signed by the President, was based on the existing ten states, calling into question the motivation for the actions taken and raising additional questions of legality.
The impact of this unconstitutional action by the President and National Legislature is far reaching.
- The boundaries of the newly created states result in greatly increased territory being shifted from one to another ethnic group and increases that group’s control over the legislative process. This is viewed by many as an effort on the part of the President and National Legislature to create dominance of the nation by a single ethnic group.
- Neither attendance records nor a formal vote count for the assembly session have been released, further bringing into question the intent of the leadership to knowingly change the constitution unlawfully.
- The creation itself of 28 states during a period marked by conflict and confusion creates additional concern and instability when stability and establishment of the rule of law are so vital. Furthermore, additional conflict and instability have been introduced as groups quarrel and fight over boundaries and control.
- Creating states along ethnic lines institutionalizes “tribalism.” Instead, all government actions should be consistent with creating a national identity while respecting the culture and equality of all ethnic groups.
- Granting the President additional power additionally is unwise given the findings of the AUCISS that additional power needs to be devolved to the states and that independence of the state government of central government control is essential to restoration of stability.
- Additionally the action is in violation of article 36 (1) which reads “All levels of government shall promote democratic principles and political pluralism, and shall be guided by the principles of decentralization and devolution of power to the people through the appropriate levels of government where they can best manage and directs their affairs”.
Actions Required to Correct the Situation:
- President Kiir should immediately cancel Presidential Order No. 36/2015 and allow the normal process for constitutional change during the transitional period as provided for in the Compromise Peace Agreement.
- Both Houses of the National Legislature must meet openly and separately and repudiate the action taken on November 20.
- President Kiir, Dr. Machar and all sides must cease armed conflict and relocate military forces to their designated areas. Reports that attacks on forces which have relocated should be investigated thoroughly, and violators must be appropriately disciplined.
- All political groups must speed up compliance with processes stipulated in the Compromise Peace Agreement to form the government of national unity as specified.
Absent such actions we expect continuation of the conflict, additional localized conflict, and the resulting continuation of death, displacement, abuse and suffering of innocent civilians and destruction of property and potential spread of the conflict to neighboring nations as well as any failure of the Compromise Peace Agreement.
The Coalition of Advocates for South Sudan (CASS) was established in April 2014 with the mission to help establish a just and lasting peace in South Sudan. Our advocacy is directly informed by the situation on the ground and by the South Sudanese people who urgently seek justice, peace, end to violence, and the establishment of a democratic nation with equality for all.