Opinion: Reinterpreting the concept of National Security in South Sudan – Where did we go wrong?

By Juol Nhomngek Daniel, MP

July 23, 2024(Nyamilepedia) — On July 3, 2024, the National Security Service Bill was passed by the National Legislative Assembly of South Sudan in Juba. During the deliberation that led to the passing of it, the majority of the Opposition members led by the SPLM-IO bitterly opposed it in Parliament. Some of us  who objected to it being passed into law have well-founded fear. This is because if it is passed and signed into law by the President of South Sudan, it risks undermining human rights and strengthening the National Security Service (NSS) ‘s abusive powers. 

The worst thing about the current National Security Service (Amendment) Bill, 2024 is that its provision on the arrest without warrant is the legal entrenchment of arbitrariness and abuse of power by the National Security Service. This has several negative implications on the security sector as it affects the coherency, cooperation and collaboration among the components of the National Security Sector. The components of the National Security Sector in South Sudan are: 

The South Sudan People’s Defence Forces (SSPDF) formerly known as the Sudan People’s Liberation Army (SPLA), the National Security Service (NSS) (the intelligence organisation); the South Sudan National Police Service (SSNPS); the National Prisons Service of South Sudan (NPSSS); the South Sudan National Wildlife Service (SSNWS); and the South Sudan National Civil Defence Service (SSCDS) or fire brigade. 

All the above mentioned components of the National Security Sector are what contribute to the stable security of the country through their cooperation in intelligence sharing, coherence and collaborative functions. Their functions are facilitated by the National Security Service which is the body that gathers information, analyses the same and advises each component accordingly based on their honest views and expertise.

 The constitution is aware of the collaborative and cooperative role of the national security service as it can be understood under Article 159 (3) of the Transitional Constitution. However, if the President is going to assent to the Bill and becomes law, it is going to change the role of the National Security Service contrary to Articles 1(5), 2, 3, 9 to 34, 35, 36, 45, 46, 51 (on separation of powers), 122 and 159 of the Transitional Constitution of the Republic of South Sudan. 

The likely consequences of the Bill becoming the law is that giving the National Security Service more powers than any other components of the National Security Sector can weaken the Security Sector as a whole in South Sudan. The conflict over roles is going to emerge to the worse level than now. As a result of the conflict, the cooperation, collaboration, discipline that exists in the security sector and failure of information sharing will even increase. 

The victim of the failure of the Security Sector will be the civil population. All these will happen as a result of upgrading the National Security Service from being collecting, analytical and advisory to relevant authority to be supreme body above the Constitution of South Sudan contrary to Article 3 of the Transitional Constitution.  

Due to the above reasons, we found it necessary to oppose the Bill, which the supporters of the Bill have been accusing us of being against South Sudan. However, our argument, which we still maintain to date and into the far future is that we don’t oppose for the sake of opposing because of being in opposition but we oppose based on critical analysis of what should be the correct path of sustainable future of South Sudan. The National Security Bill if it is signed into law will be a political time bomb in future like what happens in Sudan after the establishment of the National Security Service similar to the structural setup of the current South Sudan National Security Service. 

In opposing the National Security Bill of becoming the National Service Act, 2014 (as amended, 2024), we are guided by the  past experiences within and from neighbouring countries which inform the present and guide our decision-making for a better future of South Sudan.  The decision to oppose any actions or move by the SPLM-IG comes after we make a proper judgement and analysis. As the party fighting for reform of the system to benefit the citizens of South Sudan, our position is very clear: any law that discriminates or potentially discriminates against the civil population or majority of ordinary citizens is a bad law and should not be allowed as it is contrary to our constitution.

The action of the opposition as a whole should be objectively viewed as the declaration for the commitment to work together to put South Sudan on the path to sustainable peace and permanent stability. The sustainable peace and stability needs the actions of the authorities to be in accordance with the provisions of the constitution of South Sudan. When we talk of the Constitution, we do not mean the written Transitional Constitution in the hard copy but we mean those values that are contained in the written document.

The Constitution are values that are respected by all authorities and citizens of South Sudan irrespective of the appearance documents that contain them or without even being put in writing. The values of South Sudan that define the Constitution are the foundation of South Sudan, which the security sector is established to protect for the benefit of all. The common Constitutional values that I have alluded to in the foregoing sentence are those found in Article 1 (5) of the Transitional Constitution of the Republic of South Sudan, 2011 as amended are: justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms. 

The values mentioned above are foundational values of South Sudan, which require all citizens, non-citizens, the government officials and civil servants in South Sudan to observe their actions as a way of protecting and implementing the supremacy of the Constitution. Being the supreme document, the Constitution binds all persons, institutions, organs (including the National Security Services) and agencies of government throughout the Country since they derive their authority at all levels from the Constitution.  

In other words, the Constitution is the product of the will of the people of South Sudan who are sovereign and because of that the government and its institutions must respect the Constitution unconditionally. Therefore, the mandate of the National Security Service in South Sudan is intended to protect the integrity of the Constitution by ensuring that all actions that pose the threats against the constitutional establishment both internally and externally are detected earlier and controlled. 

The mandate of the National Security Services is a crucial yardstick of the rule of law and human rights protection in South Sudan. Thus, Article 159 (3) of the Transitional Constitution on the mandate of the National Security Service supports the fact that the National Security Service as the professional security organ is the body which is tasked with the duty to respect the will of the people, the rule of law, civilian authority, democracy, human rights and fundamental freedoms.

In respecting the above constitutional principles, the people can trust the ability of the National Security Service to control crimes in coordination and collaboration with other security organs. The National Security Service is central to crime control in South Sudan since it is the body charged with the internal and external security of South Sudan and her people.

In relation to the foregoing discussions, the reform of the Security Sector and Security Law are considered a priority to the security sector reforms. The Revitalised Agreement of 2018 in Chapter II puts the Sector Reform at the heart of the reform activities, which is an important milestone in the current transitional period and in the run-up to the general elections that will be held in future as will be determined by the Parties to the Revitalised Agreement of 2018.  

As a part of coordination, coherence, uniformity and collaboration, the Revitalised Agreement requires that that the reform of the security sector must ensure coordination and collaboration among the security organs listed above under the National Security Council and Committee at both National and state levels whose composition and functions are determined by the National Security law. 

The National Security Council is headed by the President who is charged with security sector interagency coordination and collaboration. This implies that all the security institutions operating as part of national security sector must work in coordination through information sharing and referral of such security information for their efficiency and effective operation in executing their mandate as they work to: 

 Combat all types of  crimes whether against the state or persons; uphold the Constitution; defend the sovereignty of the country both internally and externally; protect the people of South Sudan, their lives and property; secure the territorial integrity of South Sudan; defend South Sudan against external threats and aggression; and address any emergencies as well as participate in reconstruction activities, and assist in disaster management and relief in accordance with the Constitution and the law. 

In order to operate efficiently and effectively, the Constitution read together with the National Security law gives the National Security Council a mandate to define the national security strategy to counteract the threats to the Nation Security of the Republic of South Sudan after the critical analysis of such threats. The National Security Service is required by the Constitution and its law to make sure that it is accurate in their work of information gathering, analysis and advice to the relevant authority. 

It is important for the National Security Service to bear in mind that it is the Constitutional body that is tasked to implement the provisions of the Constitution in letter and spirit through information gathering based on correct facts with correct analysis that will inform the correct advice to the relevant authority. Therefore, the National Security Service of South Sudan is the Professional Security Organ.

 Being a professional security organ is important for the role of the National Security Service in respecting civilian authority that can make the civil population trust and cooperate with it. The trust by the civil population is the best strategy for controlling crimes in any country. It is an irreplaceable tool for prevention and identification of the threats to national security. The threat to national security is any activity that is in violation of law at large scales that proves to be a threat to the life of the country as a whole.  This is why the framework of national security must work regularly and effectively in the identification of priorities, operating in coordination, and exchange of information in the security sector. 

Hence, the collaboration among departments of the national security contributes to maintaining and improving combat capabilities of the security sector that ensures fast response to all possible challenges in the early stages of threats by developing compatibility with other state institutions involved in overcoming of the threats, as well as establishing an effective and flexible system for reserve and mobilisation.  

The organs under the national security sector as listed above are collectively referred to as the law enforcement agencies and security service. This implies that for them to succeed, they must have mutual cooperation in maintaining law and order, preventing, combating and investigating crimes with the ultimate aim of protecting the lives of the people and their properties by upholding and enforcing the Transitional Constitution and all different laws in the territorial borders of South Sudan. 

 For effective control of security to ensure stable security, there is a need for coordination and cooperation within the National Security Sector with the collaboration from civil authorities and the civil population at large. Where there is coordination and collaboration within the national security sector, the respect of the will of the people, the rule of law and order, civilian authority, democracy, human rights and fundamental freedoms are ensured and upheld.

In summary, the Bill  shows that the reinterpretation of the concept of National Security  Service in South Sudan is grossly misunderstood due to the failure to understand its mandate. The question is, where did we go wrong? We go wrong because the National Security Law is viewed as a tool of protecting wealth and power rather than the future of South Sudan. This is the reason the National Security Service Amendment Bill, 2024 gives the National Service Personnel power to arrest without warrant. 

The move is the indication that the SPLM-IG is resistant to the reform as the fear of losing power peacefully. The action to pass the current national security law is a strike in the heart of the public and security sector reforms. It is a set back that has returned the country to the pre-Revitalized Agreement of 2018. It has beyond reasonable doubt legally entrenched the abuse of power and arbitrary violations of human rights. It is therefore our hope that the President of South Sudan rejects the Bill since it is against the best interest of South Sudan as it puts the future of South Sudan in dilemma and in uncertainty.    

The writer is an Hon. member of the Parliament representing Cueibet County in the National Legislative Assembly, Juba. He is a lawyer by profession and a lecturer in Human Rights, Constitution, Customary law, Jurisprudence and moot practices. He can be reached through: nhomngekjuol@gmail.com;