By Gordon Buay
January 24, 2011 (SSNA) — In his response to my public statement entitled “President Salva Kiir’s Decree Violated South-South Dialogue Agreement”, Dr. Peter Adwok Nyaba argued that Lt. Gen. Salva Kiir Mayardit “acted within the law”. I am not sure whether Dr. Nyaba read the Final Communiqué of the South Sudan Political Partiers’ Conference of October 2010 or he was writing to defend his boss to please him, knowing quite well that most South Sudan ministers in the Government of National Unity (GONU) will lose their jobs after February, 15, 2011. I heard that South Sudan ministers in the North are concerned about their future because the coalition government that will be formed in the South after July will not accommodate all SPLM’s ministers from the north because half of GOSS portfolios will go to other political forces as agreed last October by all political parties.
To refresh the memory of Dr. Nyaba, in case he didn’t have time to read the Communiqué last year due to the well-known resentment between him and Lam Akol, I would advise my dear uncle to pay attention to article 3 of the said communiqué which stipulates that in the event that separation is the winning option in the referendum, a conference shall be reconvened as a National Constitutional Conference within one month from the announcement of the result of the referendum to carry out a constitutional review on the Interim Constitution of Southern Sudan in order to draft a permanent constitution for the new independent and sovereign state of South Sudan. What this means is that President Salva Kiir cannot appoint members of the SPLM party as members of the so-called “Constitutional Review Committee” without involving other political parties. All the personalities appointed are members of the SPLM including Judge Muolana Gatwec Lul (ran during SPLM primary elections to be a candidate for Upper Nile State governor) and Muolana Kon Bior. None of the people appointed is a member of another party.
What is more intriguing is whether the need for the review of the interim constitution is a prime responsibility of SPLM party alone. Unless uncle Nyaba is advocating for one party state or he is relapsing to his communist tendencies of 1970s, President Kiir’s decree cannot be justified in a free and democratic society. One may hope that resentment between uncle Nyaba and Lam Akol should not override the will of the people of South Sudan to establish a democratic system. I hope uncle Nyaba is not advocating for what is called “choiceless democracy” where the affairs of the state are determined by one party only in a country that has more than one party. The people of South Sudan should keep praying every Sunday so that uncle Adwok Nyaba does not confuse President Salva Kiir Mayardit at the expense of building multiparty democracy in the South as it is now clear that majority of the people of Southern Sudan voted for secession.
One does not need to be a rocket scientist to understand that President Salva Kiir should have consulted with the leaders of other political forces as per the terms of last year agreement between political parties. Therefore, Dr. Nyaba needs to be educated about the terms that were agreed by all the political parties’ leaders last year unless he wants to introduce “Dukeson’s treatment” to issues of South-South Dialogue (Dukeson is a name of a guy called John Gatkuoth Dup, who, in the 1960s, threw Nyaba over the offence in Malakal because he was disturbing the party).
In conclusion, the people of South Sudan should call upon President Salva Kiir Mayardit to include other political parties in the committee that will work-out modalities for the future governance of South Sudan. One party’s monopoly of the constitutional affairs of the South is a clear introduction of guerrilla dictatorship.
NB: The author is a former Secretary General of South Sudan Democratic Front (SSDF) and the signatory of Washington Declaration between the SPLM and the SSDF in 2008. Email: [email protected]
Pres. Kiir acting within the law
To the best of my knowledge the constitution being reviewed is the Interim Constitution of Southern Sudan which of necessity must cease to operate on July 8th, 2011. A new transitional constitution [transition into independent sovereignty] should be ready for ratification by the Southern Sudan Legislative Assembly at least by the middle of May. Gen. Salva Kiir Mayardit shall sign this constitution into the organic law of the new state and shall on July 7th take oath of office as interim president of independent South Sudan.
Up to this point in time things are unfolding as agreed. Why is Mr. Gordon trying to read too much into national constitutional review commission? There is a government in South Sudan and it’s the prerogative indeed function of GOSS to put all these institutions and instruments into place. I believe this transitional constitution shall be subjected to debate by the elected Constituent Assembly or Parliament. The political and legal processes leading to the election of the constituent assembly should commence immediately with the raising of the flag of the new state. The political and legal process will entail I believe the promulgation of laws that will legitimize the political parties and render them legal to operate in the new state.
So Mr. Gordon Buoy, don’t try to jump the political process. President Salva Kiir is acting within law.
NB: Dr Peter Adwok Nyaba is a Minister of education in the Government of National Unity (GONU).
President Salva Kiir’s Decree Violated South-South Dialogue Agreement
It is the understanding of all political forces that after the successful conclusion of the South-South Dialogue, South Sudan Leadership Consultative Forum was formed to steer the South towards nationhood. As a result of that, a roadmap was created to ensure that the SPLM and all political parties would hold a conference in Juba to guide the future governance of the region after the referendum. The Final Communiqué, which was endorsed by all political parties including the SPLM, stipulates that a constitutional review conference will be conducted after the referendum and will agree on the specifics of the formation of a new transitional broad-based government by 9 July 2011.
The decree of President Salva Kiir caught the people of South Sudan and the international community by surprise due to the fact that it contravened the terms all the political parties agreed to last October. First, the October 2010 Final Communiqué of all the parties called for the formation of Constitution Review Commission. The “Constitutional Review Committee” stated in the President Kiir’s decree seems to have no political connection with the terms of the last year agreement of all the political forces. To refresh the memory of all those concerned, it is important to note that article 3 (b) (i) of the last year communiqué states that in the event that separation is the choice of the people of Southern Sudan in the referendum, “GOSS shall establish a National Constitution Review Commission to review the current interim constitution of Southern Sudan for adoption by the SSLA as a transitional constitution”.
Reasonable people would not fail to realize that the understanding of all the parties was that prior to the formation of the Commission, the leadership forum, which is composed of all the leaders of the Southern political parties, would sit down to nominate persons who will form the commission. Unfortunately, the decree of President Salva Kiir not only failed to consult the leaders of South Sudan parties, but also formed a committee which was not agreed upon in the first place. To add insult to injury, the committee President Kiir formed combined members of South Sudan Legislative Assembly (SSLA) with the GOSS cabinet ministers in violation of the last year Final Communiqué which does not require members of SSLA to be part of Constitution Review Commission because the SSLA is the last body that is supposed to review the work of the Constitution Commission. If the chairperson of the SSLA’s Constitutional committee is also part of the so-called “constitution review committee”, it follows logically that there would be no need for SSLA to adopt the final review of the constitution because its members are already part of the committee. Moreover, the neutrality of SSLA is compromised if the chairperson of the constitutional committee of the August House is also a member of the so-called “constitution review committee”.
It goes without saying that the intention of the decree is very confusing let alone the fact that the composition of the committee itself is unexplainable. If the committee was intended to be GOSS Cabinet committee entrusted to oversee the formation of Constitution Review Commission as it was agreed upon by all the political parties last October, then, there was no need to include judges, private lawyers and members of SSLA. The last year communiqué stated that “GOSS shall establish a National Constitution Review Commission to review the current interim constitution of Southern Sudan for adoption by the SSLA as a transitional constitution”. The phrase “for adoption by the SSLA” would not allow members of SSLA to be part of Constitution Review Commission because it is the SSLA that would eventually study the work of the commission prior to its adoption by the August House. If the chairperson of Constitutional committee of the SSLA is also part of the so-called “Constitutional Review Committee”, it means that the SSLA will not independently study the work of the committee before its adoption and this begs the question whether the President of the GOSS had a proper legal advice prior to issuing a decree.
It is a mistake for the President of the GOSS to think that consultation of other political parties is not required for the review of the Interim Constitution of Southern Sudan. The terms of last October dialogue do require the involvement of other political parties in the review because it is the reviewed constitution that would serve as the post-independent transitional constitution before the adoption of permanent constitution, which would take more than a year to complete. The processes of permanent constitution require that the coalition government that shall be formed after July would convene an all-party constitutional conference to deliberate and adopt a constitutional system for the new independent and sovereign state of South Sudan. If other political parties are not involved in the review of Interim Constitution of South Sudan, the question that poses itself is whether a coalition government would be formed after July that would include all the political forces of Southern Sudan.
The international community needs to be concerned with the political developments taking place in South Sudan because the decree of President Salva Kiir is the first violation of South-South Dialogue concluded last October. If the political forces in the South cannot work together starting from now, the international community should be concerned about the future political stability of South Sudan. If South Sudan political forces cannot work together during transitional period prior to constituency and presidential elections, it should be reasonably concluded that stability in the South would be difficult to attain.