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The Sudan Tribune and whoever posted an article on the quoting of the wrong articles of the Presidential decrees do not have the correct version of the Transitional Constitution of South Sudan 2011.
By Juma Mabor Marial
July 26, 2013 (SSNA) — I am reacting to the article published by the online newspaper (Sudan tribune today) alleging that the President of the Republic of South Sudan quoted wrong articles of the Transitional Constitution in removing his Vice President Dr. Riek Machar, dissolving his cabinet and suspending the SPLM Secretary General Pagan Amum. The allegations are that articles, 104 (2), 105 (2) and article 112 (1) are not the correct articles to be quoted in the removable of the Vice President, dissolution of the cabinet and relieving the ministers respectively.
Contrary to what this group/author thinks, my opinion is that the author of that article does not have the correct version of the Transitional Constitution of the Republic of South Sudan 2011. If he/she indeed has, then, the President and his advisers have not by law erred in quoting such articles for that particular purposes, instead, the one who is trying to make the corrections is indeed the person quoting the wrong articles of the Transitional Constitution for instance, what they quoted to be under article 104 (2) as and I quote “Any person aggrieved by an act of the president may contest such act before: (a) the Supreme Court, if the alleged act involves a violation of this Constitution, a state constitution, the Bill of Rights, or the decentralized system of government; or (b) any other competent court of law, if the allegation is based on any other legal grounds” is under article (116) of the Transitional Constitution 2011 and the right provisions of article 104 (2) under the title of Appointment and Removal of the Vice President are that and I quote “ the vice president may be removed by the president or by a decision passed by a two-third majority of all members of the National Legislative Assembly. If the post of the vice president falls vacant for any reason, the president shall appoint a replacement”.
Given the provisions of this article, it is also advisable to say here that, the misinterpretation of the article 104 (2) of the Transitional Constitution by some laymen that the president does not have powers to remove the vice president without the approval of the National Legislative Assembly is pedestrian because in strict legal interpretation of the Constitution, the words “ or” and “Subject to” have different connotations and this mean, the words that the vice president can be removed by the president “or” by a two-third majority of the members of the National Legislative Assembly means whichever is earlier and not that each is prerequisite of another and therefore, in the strictest legal language, the president can remove the vice president without the consent of the National Legislative Assembly. However, if the word was “subject to” approval by National Legislative Assembly instead of “or”, then the president won’t have the powers to remove the Vice President without such consent. So the interpretation is as plain as that.
Nevertheless, the bottom-line as per the legal parameters are that, the recent Presidential decrees are legitimate, their political implications notwithstanding. It is therefore, advisable for media outlets to play a very crucial role in giving accurate information in this ensuing political crisis in order to evade the situation from escalating further. Misinterpretation of any single article of the Transitional Constitution is likely to amount to defilement of the constitution as the law of the land and this would also amount to misinforming the public about the looming County’s affairs.
Furthermore, the author of that article also in his/her pursuit of correcting the presidential decrees said and I quote “ article 112 (1) state that "Deliberations of the National Council of Ministers shall be confidential; no Minister shall disclose, communicate or reveal such deliberations save by permission of the Council of Ministers". Of which this provision is found under article 111 of the Transitional Constitution of South Sudan 2011 under the heading of confidentiality of the deliberations of the council of ministers. The true provisions of article 112 (1) are that and I quote “ministers of the national government shall be appointed and removed from office by the president”.
In conclusion, I wish to say that Sudan tribune is a highly read online newspaper and its management must check to correct this information and confirm their authenticity of any information before they reach the public domain. Any misinformation at this point in time of our country’s political tussles is tantamount to anarchy, so it is high time that both in the public and private sector exercise maximum restraint and professionalism to steer our country toward a united, peaceful and prosperous destiny.
Juma Mabor Marial is a lawyer based in Juba Reachable at [email protected]