The Rule of Law Defeated Dr. Peter Adwok Nyaba’s Opinion

By Gordon Buay*

September 7, 2010 (SSNA) — Anybody who read Dr. Peter Adwok Nyaba’s book, "The Politics of Liberation in South Sudan: An insider View” would admire his intellect, clarity and openness. Dr. Adwok is known to some as an outspoken intellectual who cannot tolerate injustice or mistreatment of anybody. There are individuals from his generation who envy his radicalism and truth telling. However, the South Sudan younger generation always looks for people like him to quench their thirst for justice.

As somebody from younger generation who is always thirsty for justice and respect for constitutional rights of individuals, I was disturbed few months ago to see somebody in a caliber of Uncle Adwok Nyaba supporting injustice. In his response to Dr. Peter Adwok Otto, Uncle Adwok Nyaba concluded his article stating that “the SPLM-DC is undergoing de-legitimization and may soon be outlawed in Southern Sudan”. As somebody from Upper Nile State who is familiar with his political stances, I thought he was joking when I read his article arguing that SPLM-DC, a party that is legally registered, would be “soon outlawed”. I expected Uncle Adwok to intellectually defend such a statement because de-legitimizing a legally registered party requires adherence to rule of law.

The fundamental argument of Uncle Adwok Nyaba in his response entitled “Response to Dr. Peter Adwok Otto’s Scourge earth war on Chollo people” is that the SPLM-DC is not any longer a legitimate political organization. He supported his argument alleging that SPLM-DC has a militia army in Chollo Kingdom that is engaged in fighting the SPLA army and the GOSS. He further alleged in his response that the militias were fighting the SPLA because Dr. Lam Akol lost April election and were determined to punish the Chollo. Uncle Adwok wrote: “If the SPLM-DC decided to declare war on the Government of Southern Sudan because its Chairperson was defeated in the presidential race then it is up to the Chollo intellectuals, who are now very vocal about what is going on, and civil population make a clear cut decision whether or not the SPLM-DC war is a cause worth dying for”.

Uncle Adwok posed a question, “What bad thing did the Chollo people do to Dr. Lam to deserve such treatment?”   It could be inferred from this question that Uncle Adwok believes that the ongoing conflict in Chollo Kingdom is a work of Lam Akol to punish the Chollo people. If such a questioned is analyzed objectively, one may wonder how Lam Akol would punish a community that elected members of SPLM-DC in the last April election. All Chollo Kindom seats to South Sudan parliament, Upper Nile State parliament and National Assembly in Khartoum were taken by the candidates of SPLM-DC. Common sense has it that Lam Akol cannot punish a community that brought honor to a party he leads. The parliamentarians who represent Lam Akol’s party in South Sudan Legislative Assembly (SSLA) are from Chollo Kingdom.

The political enmity between Uncle Adwok and Dr. Lam Akol is something that dated back to 1990s and does not need anyone to revisit it because it has become chronic that any South Sudanese can detect it without much mental work. One may not be surprised if both elders are seen in public accusing themselves. However, what disturbed me in particular is the opinion Uncle Adwok Nyaba put forth that the SPLM-DC is “undergoing de-legitimization and may soon be outlawed in Southern Sudan”. I was expecting gunmen like Col. Malaak Ayuen and Lt. Gen. Kuol Deim Kuol to say that because they have no experience in upholding democratic principles. I couldn’t believe that an intellectual in the caliber of Uncle Adwok would come up with such an opinion. Somebody who read “The Politics of Liberation in South Sudan: An insider View” would have difficulty concluding that it was indeed Dr. Peter Adwok Nyaba who came up with that opinion. One thing is that Uncle Adwok Nyaba argued in the book that lack of respect for human rights and the rule of law were reasons for the 1991 split and moral bankruptcy of SPLM/A in the 1980s.

One of the arguments Uncle Adwok put forth in his response to Dr. Peter Adwok Otto is that a political organization could be outlawed even if registered on the ground that it formed a militia group fighting a legitimate government. Anybody familiar with theories of state-making and state-building knows that it is only the state that should have monopoly over the use of force. There is no disagreement that a political party can be de-legitimized if it acted outside the law. However, there are prerequisite legal conditions that have to be met to justify de-legitimization of a political party legally registered.

The question to be posed is whether the SPLM-DC formed a militia group fighting the SPLA in Upper Nile State. The answer to this question is legally pertinent because Uncle Adwok did not tell his readers whether a constitutional right of a political party can be taken away arbitrarily or via legal process that has to prove the crime committed by the party beyond reasonable doubt. If a registered political party can be de-legitimized without due process as required by legal principles, common sense has it that such a de-legitimation would violate core principles of the Interim Constitution of Sudan. I don’t need to quote provisions of the Constitution here because people with average education should be expected to read the constitution and know the constitutional principles giving political parties the right to exist. An intellectual like Uncle Adwok could be expected to know that if constitutional rights are to be denied, the de-legitimization has to be justified based on the principles of the rule of law.

Unfortunately, the GOSS attempted de-legitimization a kin to Dr. Adwok’s opinion without adhering to the rule of law when the former Minister of Legal Affairs and Constitutional Development advised the Speaker of South Sudan Legislative Assembly to lift the immunity of the members of SPLM-DC in the SSLA. The letter of H.E. Michael Makuei Lueth addressed to the Speaker of the Assembly stated that he acted on the request of the Minister of Interior and Internal Affairs of the Government of Southern Sudan (GOSS) in relation to the case of the slain Paramount Chief of Panyikang on the 22nd of May. The people of South Sudan were concerned how H.E. Michael Makuei would accept the request of Lt. Gen. Gier Chuang Aluong without proper legal scrutiny.

I want to clarify to the readers that I don’t have evidence to prove that Dr. Adwok Nyaba directly advised either the Minister of Interior or the Minister of Legal Affairs to lift the immunity of four SPLM-DC members of SSLA. But the actions of both ministers are reminiscent of Uncle Adwok’s opinion of de-legitimization of SPLM-DC. First, the lifting of immunity was politically motivated because both the Speaker of Parliament and H.E. Michael Makuei Lueth paid no regard to due process. From legal point of view, four members of parliament, who came from different counties of Chollo Kingdom, could not be generalized as suspects without evidentiary establishment that they were the persons who killed Chief Oyath. Second, there was neither eye witness nor suspect who identified the four parliamentarians let alone the fact that at the time of the murder they were in Juba. After they were detained, there were no legal charges brought against them because there was no real evidence linking them to the killing.

During the process of attempted de-legitimization, the Speaker, Wani Igga, said that a judge in Upper Nile State wrote a letter requesting the immunity to be lifted. However, his statement was later found to be untrue. The Upper Nile State Judiciary refused backing up false charges that were politically motivated. The investigation collapsed with lack of evidence and the four MPs were later released by the order of a new Minister of Legal Affairs, H.E. John Luk Joak. People are wondering how the Minister of Interior and the former Minister of legal affairs would request the lifting of immunity without proper evidence. The only explanation is that they were politically motivated to further the aim of de-legitimization of the SPLM-DC. It is rumored that Hon. Michael Makuei Lueth has intense dislike of Lam Akol that could override his adherence to due process. In regard to Wani Igga’s unfounded statement that a judge in Upper Nile State wrote a letter, the Speaker could have been impeached for lying had the SSLA been composed of ethical members who take morality seriously.

It is now clear that the rule of law has defeated opinions calling for de-legitimization after the four SPLM-DC members of parliament were reinstated and resumed their duties as legitimate members of parliament. The people of South Sudan should thank H.E. John Luk Joak who rose above political differences to protect the rule of law and democracy. The importance of democracy is expressed by nobody other than Hon. Onyoti Adigo Nyikwec, a member of SPLM-DC in the SSLA who happily said that “it is the first time in the history of southern Sudan to have the leader of the opposition in the parliament”.

In contrast to Uncle Adwok’s opinion, the SPLM-DC is now regarded by the SPLM party as a legitimate opposition party. The dream of de-legitimization Uncle Adwok Nyaba alluded to is now treated as power struggle among Chollo politicians. The April election has brought a new dispensation in Upper Nile State politics that even those who originally assumed to be popular have realized their unpopularity among the current generation that yearns for justice and democracy.

If Uncle Adwok Nyaba knows that “democracy as a system of governance is built by the political forces in a particular country” as he stated in his article, “Democracy, multi-party democracy and the debate”, one may wonder how he came up with an idea of de-legitimization of SPLM-DC without due process. Multiparty system, as experience attests, cannot augur well with de-legitimization policy that was carried out by Lt. Gen. Gier Chuang Aluong and Hon. Michael Makuei Lueth. For multiparty democracy to flourish, experience advises that democratization does require a mechanism of the rule of law that should govern the interaction between political forces. The existence of the rule of law framework is the one to create the basic conditions in which different political parties should peacefully compete for the control of the state. If the ruling party could de-legitimize opposition parties without due process, it is irrational to justify de-legitimization policy in the name of restoring law and order.

In conclusion, the people of South Sudan should emulate H.E. John Luk Joak to guard the constitutional order that permits multiparty system in South Sudan. The politics of de-legitimization can be supported by people whose objective is to establish dictatorship. Democratic principles require the government to adhere to due process to de-legitimize any political party. De-legitimizing a party because of hatred or political differences violates constitutional principles that permit multiparty democracy. The people of South Sudan should pray that Uncle Adwok’s adherence to democratic principles would override his personal dislike of Lam Akol so that the people of South Sudan will outlaw de-legitimization policy to build a prosperous and democratic state after 2011 referendum vote.

* The author is a former Secretary General of South Sudan Democratic Front (SSDF) and a signatory of Washington Declaration between the SPLM and SSDF in 2008.

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