Constitutional Debate: On the Controversy Surrounding the Proposed Presidential Powers in the Draft Transitional Constitution of the Republic of South Sudan

By PaanLuel Wel, Washington D.C, USA

July 7, 2011 (SSNA) — In spite of our basketful of unresolvable problems, we seem to be adding more onto the silos of our national headache. Lately, in a clear mark of the new low in our political intercourse, the gracious citizens of South Sudan were unnecessarily subjected to an embarrassing spectacle on our national South Sudan Television.

As South Sudanese are anxiously transfixed on the final preparations to usher in the new nation of the Republic of South Sudan, two high ranking officials in the ruling party of Sudan People Liberation Movement, and who also happen to be ministers in their own respective rights, have been shamelessly washing their dirty linens in public. The Televisions, the newspapers, the online news-sites and the magazines in Juba are all screaming out their despicable public squabbling.

Pagan Amum, in front of the official South Sudan TV from Addis Ababa, accused Sudan’s oil minister in the Government of National Unity, Dr. Lual Deng, of betraying the South for allegedly “giving 48% of the oil share to North Sudan for the whole month of July contrary to the 2005 peace agreement which ends the share on July 9” And as if to drive a point home, especially to those who have been wondering where and why he has been quiet recently, Hon. Pagan thundered that the good minister “must be held accountable for his action.”

In response, Dr.Lual, who had been in the cross-fire of the press last year, angrily denied the charges leveled against him by Hon. Pagan and swiftly hit back with his own crafted counter-accusations. He indicted Pagan Amum, the SPLM Secretary General and the Minister for Peace and CPA Implementation, of “allegedly embezzling three million US dollars to his own account from the sale of the VIVACEL network telephone company” and for “failing to build the headquarters of the [SPLM] party.”

That hullabaloo, however, is not the main baggage we are carrying over into the new country. That award of chief controversy goes to the teeming storm surrounding the draft constitution, particularly the imported Article 356 of the Indian Constitution. The disputation centers on Article 101 (R) of the draft transitional constitution which, in the views of the opponents of the draft constitution, dictatorially empowers the president to ceremoniously “remove [an elected] state governor, and/or dissolve the state legislative assembly in the event of a crisis in a state that threatens national security and territorial integrity.”

That long simmering tension burst onto the surface on June 9th, 2011, when Salva Kiir, the President of the Government of South Sudan, blatantly censured his deputy, Dr. Machar, of running a parallel government within the official government of South Sudan. Reportedly, the outburst between the two most powerful personalities in the soon-to-be independent state of South Sudan was triggered by two main factors: President Kiir unhappiness with any talk of amendment to the draft constitution by the South Sudan Legislative Assembly and an alleged interception of a second version of the draft constitution authored by none other than Dr. Machar, his principal assistance in the government.

With the grotesque arrival on the political scene of the public spite between Hon. Pagan Amum and Dr. Lual, in addition to the highly anticipated independence day of South Sudan—July 9th, 2011, some South Sudanese would mistakenly reckon that the subject of the contested clauses of the draft transitional constitution are well behind us, and possible on their way to the dustbin of history.

That illusion, however, must have been bitterly shattered when one Mikaya Modi, in his open letter to President Kiir, ominiously declared, under a banner of Equatorians Warns to Fight GoSS, that “we the sons……and people of Greater Equatoria region will take up arms and fight your government and even ask our people to force you out of our land.” This is basically due to, among other grievances, the polemic surrounding the draft interim constitution which is hypothetically geared toward bolstering President Salva Kiir and his alleged tribal cohorts sucking dry the national resources in Juba.

And as if that is not enough of a political crisis on the eve of our long-awaited independence, there are purportedly “allegations of some officers and to some extent some communities staging or plotting coup d’état against President Salva Kiir” according to one Major General, Malual Ayom Dor, the Director of Military Production and Ministry of SPLA Affairs in Juba, South Sudan.

The rumor, swarming amongst President Kiir supporters, has it that the three governors of Greater Equatoria region, along with Dr. Machar and his backers, have politically joined hands to ensure that President Kiir, after July 9th, does not imposed on South Sudanese the draft transitional constitution in its current form without undergoing due amendment as suggested by various political parties and players. The failure to which, on President Kiir’s Part, he will have to relinquish power to someone else that would better listen to the people and serve the interests of the majority of South Sudanese or so the strategy goes.

But what exactly is the bone of contention on the draft constitution of the Republic of South Sudan that is causing all these anxieties and outrages? What is wrong—according to the opponents of the draft constitution, and right—in the opinions of the proponents of the draft constitution, in and with our first national draft transitional constitution?

From the inception, opponents of the draft interim constitution are apparently dismayed by what they sense as excessive powers given to the president by the draft constitution of which among them are the “powers to remove elected governors of the ten states and dissolve the elected parliaments and appoint new members.” Additionally, some opponents of the draft national constitutions, some of whom are eyeing the presidency themselves, are not entirely comfortable with the recommended “four years transitional period, preferring 18 to 24months of its length.”

Furthermore, the fact that the “terms for president and state governors are not clearly defined” in the draft interim constitution does not amuse many opponents of the draft constitution who perceive nothing less than a backdoor institutionalization of an indefinite term for President Kiir and state governors to rule South Sudan till death does them apart.

While those clauses might be the main point of dissension, there are other not-less important objections fronted by the fervent opponents of the draft constitution. These other problematic clauses included the proposed powers of the President to declare a war with or without approval of the national parliament, the clause protecting incriminated public officials from criminal or civil prosecution while still serving in the office, and the proposed finality and irrevocability of the decision by the National Council of Ministers on any state and national matters.

In essence, therefore, the draft transitional constitution conjures up two images in the minds of its opponents: the president wants to anchor himself into power forever and there is unfounded horror that the president may timely abuse the constitution to get at his political nemesis. By comprehending the distress and appreciate the depth of the apparent gravity of the situation, it is only then that one can understand the near-fanatical opposition to the draft provisional constitution of the Republic of South Sudan.

But what have the proponents of the interim constitution to say about all these profound protestations? Are these demurrals just mere wild allegations from President Kiir rivals who look as if blinded by their baseless opposition to his rule? Has the draft national constitution, regardless of its quality, provided a perfect platform and pretext to the political opponents of President Kiir? Having listen to and understood the suspicions among the opponents of the draft constitution, let’s cross over and give chance to the other sides of the political discourse before we can postulate on any opinion and arrived at an informed possible conclusion.

Proponents of the draft provisional constitution, a group possibly commanders by President Salva Kiir himself, see no threat to democracy in the present form of the draft constitution and want it approve in its entirety. In the words of Tong Lual Ayat, the chairman of the United Democratic Party (UDP), recorded by Sudan Tribune, the “powers given to president of the government of South Sudan during interim period to relieve state governors and dissolve state assemblies are conditional. It is a conditional power which is rarely or which will [never be] used unless there is this situation or this situation arises where the national integrity and national security is being threatened.”

Mr Tong Ayat, who seems to epitomize the advocates of the draft constitution, added that “The Draft Constitution of South Sudan is acceptable. It has all type of freedoms and international treaties to cover basic human rights, good governance and transparency. It has bill of rights. It defines and demarcates powers which belong to three organs of government. It talks about independence of the legislature, the judiciary, executive powers which comes through the elected presidential system.”

One area where the supporters of the draft constitution are adamant about extending the powers of the president to summarily dismiss elected governors is when the trouble touches the national security of the New Republic of South Sudan. In such cases, the proponents argue, “The president should be granted powers because there are cases where a president is required to take prompt decision on behalf of either Assembly or judiciary especially when it is something related to national security.”

This is the case, the fans of the draft constitution maintain, because in the event of a substantial threat to national security or territorial integrity “none of the citizen would expect president to wait approval of his decision by the parliament.” From the perspective of the proponents of the draft constitution, failure to approve the current draft constitution in its present forms would “jeopardize the tranquility and the harmony and even the national security of the new republic unless there is a super power [in form of the president] which can intervene” when matters proportionally go out of hands.

In other words, according to the proponents of the draft constitution, there is absolutely “nothing wrong with this interim constitution. It is clear and acceptable. It should not be opposed for the sake of being opposition political parties.”

Having seen both sides of the argument sumptuously, what would a well-informed, politically independent-minded and tribally-liberated South Sudanese think and conclude about the craziness over the draft provisional constitution? By styling themselves in the name of the interest of the people, are the opponents right in appearing to be the promoters and protectors of democracy? And are the proponents trampling on both democracy and people rights by appearing to impose their wills on the populace or are they, as they seem to be implying, protectors and guarantors of the national security and territorial integrity?

Are we missing a point somewhere; something that we should rather be focusing on our combined energies rather than on opposing and threatening one another when we yet to shake off the nasty dust and memories of the last brutal civil wars? To rephrase myself, is this just our usual politicking and jostling for forthcoming powers in the new Republic of South Sudan or is it more or less anything to do with the sanctity of the proposed legal document as both parties would like us to believe?

First and foremost, there is no denying the fact that there is more to politics in this constitutional controversy than meet the eye. We are dealing with two political cliques of powerbrokers who want, more than anything else on the eve of our independence, to have an edge over one another by strategically positioning themselves on the vantage point. Notwithstanding the contents of the proposed transitional constitution, the political juggling over power would have inevitably come to pass with or without the disputed clauses in the draft constitution.

Thus, any South Sudanese who takes side and fancy that one political group is right and democracy-leaning while the other political position is wrong and dictatorial-wise is just but being taken for a rough ride of his/her life. Truthfully speaking, the group being led by President Salva Kiir is only championing the full adoption of the current constitution in so far as they are, and hope to remain, in power beyond independence. I dare anyone to say if President Salva Kiir and his supporters would remain faithful to their words and convictions if President Kiir were to be dethroned on July 9th, 2011. Indubitably, were that to have been the reality of our political equation, President Kiir would have been among the loudest voices lambasting the proposed constitution.

Similarly, Dr.Machar and his political benefactors are playing the same game and tricks on the South Sudanese people. It is not the case that they are lovers of democratic principles and protectors of South Sudanese interests in the constitutional making process, noble and sweet to our ears as it may be; rather, they are offering a stringent opposition to the draft constitution just out of perceived fear of how President Salva Kiir might use it to silence and eliminate them in the political race. Had the draft constitution stipulated that Dr. Machar would assume the presidency on July 9th, our dear VP would have been today on the frontline of those agitating for its entire adoption and approval by the SSLA without delay.

Political gamesmanship aside, however, there are genuine fears and reservations about the South Sudan draft legal document. South Sudanese people have the right to peacefully and democratically express their views on the constitution. There are numerous well-documented precedents across the world, even in India where the clause was imported, whereby an incumbent president tends to abuse certain aspect of the constitution to advance his/her insatiable appetite for power and wealth or to eliminate his political opponents. Article 101 (R) of the draft transitional constitution may provide such opportunity for abuse of official powers by the president even when the political situation unwarranted it.

On the other hand, the Republic of South Sudan will be too democratically immature, too tribalized and too political fragmented to warrant a situation where instate could be left on their own terms and dictates without an overbearing powers from the central government, albeit enshrined in the constitution.

Though it would be understandably outrageous for the President to have powers to dismiss popularly elected public officials from the state government, there are still justifiable state of affairs in which such powers would become handy for the sake of national security and territorial integrity. Consider the last, and the only first, general election we had in the South; what would happen if there is a contested gubernatorial race? Assumed the incumbent state governor, in the name of the people, rigged himself into re-election and threaten war on his political opponent(s). How could the state, without the assistance and guidance from the central government, handle such a precarious political situation?

Of course, democracy or the people within that state can’t be relied on to provide the political solution since the governor would cited democracy as the means through which he acquired power and the constitution as the reason why he should not be removed by force by the presidency. If the presidency has no constitutional mandate to deal with such sensitive matters that touch on the national security, some states in future South Sudan would beget more powerful and authoritarian leaders than even the federal leader who would be in Juba.

With some states standing a good chance of being ruled by governors more powerful and more dictatorial than the national president, will we still be talking about the same country or different countries in a quasi-relationship? What if one of the popularly elected governors, who also happen to be hostile to the central government in Juba, decided to collaborate and invite in foreign powers, Khartoum government for example; would that still be within the state democratic right to decide? If not, on what basis will the presidency take necessary action against the rogue governor?

I guess it would be almost practically impossible for South Sudan to be governable by any present or future leader. And therein lies the imperative of conferring some kind of highly moderated conditional powers to the presidency with the clearest possible delineation of when and how those powers should be exercised. The presidential power to remove an elected state governor, and/or dissolve the state legislative assembly in the event of a crisis in a state that threatens national security and territorial integrity—called it the state of emergency—has precedents around the continent.

Therefore, instead of drumming up emotions on the clause itself, South Sudanese would be better off defining the conditions, in no uncertain terms, under which such powers should be conferred on and executed by the presidency. It is President Kiir’s turn right now and it might be Dr. Machar’s turn tomorrow. Were each of these leaders to be given their wills, Dr. Machar would regret in the future should he assume a toothless presidency and so would President Kiir should he retire under an authoritative leadership.

Consequently, let’s transcend the politics of personalities and settle on an immutable law that would promote our individual democratic aspirations as well as safeguarding our national security and territorial integrity. Though it might not be the best political compromise, let’s give the presidency the powers to exercise his authority over the states as time and circumstances might warrant it on the condition that he must first seek the approval of the national assembly in Juba. It is only through such partisan bargaining and compromise that we might and could preempt any potential post-independence political impasse and turmoil.

You can reach PaanLuel Wël at [email protected], Facebook, or through his blog at:

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