South Sudan: Kiir’s Constitutional Dilemma

By: Mut Turuk,

Opinion

February 16th, 2015(Nyamilepedia) — It seems that President Kiir has not predicted the consequences of his fabricated coup that has led into killing of innocent people as well as the widespread destruction in the Country. The whole motivation of that fabricated coup was to eliminate his entire SPLM rivals prior to the general elections in 2015 and to revenge against Nuer ethnic group on the grounds of his long term grudges against Nuer people since liberation struggle era. The strongest evidence was repetition of 1991 split in several times in his speeches prior to December 15, 2013.

Circumstantially, it is clear that such premeditated and fabricated coup was prepared and executed with accomplice of some neighboring countries and that proves their previous knowledge about such plan. The failure of President Kiir to predict the consequences of his war against his own people has led the Country into a widespread popular resistance due to the killing of innocent Nuer citizens in Juba in the first week of the fight as well as into complicated constitutional implications mostly, the elections which was due in 2015 in accordance with the South Sudan Transitional Constitution, 2011 has become impossible to be held, a prerequisite mandatory population census to determine the number of electoral constituencies for that general elections under section 194 of the Constitution has not been conducted.

Another aspect of President Kiir’s failure is lack of political will to restore peace and security through the ongoing IGAD led peace process in Addis Ababa, Ethiopia. As the result, the regime in Juba has run short of time to hold the general elections in addition to that the war has exhausted all its reserve money as oil production has reduced. Furthermore, the huge numbers of South Sudanese people who are joining the armed opposition group under leadership of Dr. Machar including people from President Kiir’s home state as well as from other Bhar elgazal states. For instance, joining of Maj. Gen. Khamis Abadellatib who was one of Kiir’s closest assistant and who hails from Rumbek State which is mainly a Dinka dominated state.
Kiir’s gross violations of the Constitution:

All these messing up by the regime in Juba is an eventual result of Kiir’s previous violations of the same constitution which he is now claiming to be the first defender of it.

Particularly, President Kiir had violated our Constitution in several occasions, most importantly, removal of elected governors of Unity and Rumbek State respectively without holding by-elections within sixty days was a gross violation to the Constitution and this apply to the case of Jongelei State when the elected governor Koul Mayang Juuk was relieved and reappointed as Minister for Defence and Veteran Affairs, a position which he has retained until now replacing him with Gen. John Kong Nyoun as caretaker without holding by-election within sixty days is also another gross violation of the Constitution. Repeatedly, inter alia, President Kiir had issued a controversial court order sitting as a High Court judge on 25th July, 2013 in his capacity as the Chairman of the SPLM party, banning his former SPLM Secretary General Pagan Amum for travelling outside Juba and prohibiting him from talking to media.

More seriously, recruiting tribal militia outside the official Army channels which led into a serious misunderstanding between him and Gen. James Hoth his former Chief of General Staff before the later was fired. Such militia was later on used for what is known as house-to-house search killing in Juba against Nuer ethnic group under President Kiir direct supervision and command. The recent violation was relieving of his current Chief of General Staff Gen. Paul Malong Awan from governorship of Northern Bhar elgazal State and subsequently, Mr. Kuel Aguer was appointed as care taker governor without holding by-election within sixty days and that is one of the latest violations of the Constitution by President Kiir pursuant to Article 101 (s) of the Constitution.

Such gross violations were committed by President Kiir in a day light. To summarize this, if not because of the SPLM bush mentality that is governing the entire country such violations including violation of oaths of office of the President under Article 99 of the Constitution could have been sufficient grounds for Kiir’s administration to be impeached long time ago under Article 103(2) if the Country had strong institutions.

Constitutional threshold to amend the Constitution:
After failure of Kiir’s regime to hold the general elections due to the above mentioned reasons and the intensity of war on other hand, the regime has called off the elections on 13 February 2015 with a resolution of the Council of Ministers to amend the Constitution for the purpose of extending the term of Kiir legitimacy and the National Legislature to 2017. The central question is whether there is possibility or quorum to meet the constitutional threshold to amend the Constitution within the National Legislature? If not possible, what will be the way forward to save President Kiir from being illegitimate President by the July 10, 2015?
For us to answer such question, one would refer to the applicable law in this case, which is the South Sudan Transitional Constitution, 2011. Pursuant to Article 199, and I quote “ This Constitution shall not be amended unless the proposed amendment is approved by two-third of all members of each House of the National Legislature sitting separately and only after introduction of the draft amendment at least one month prior to the deliberations” end of the quotation. To make a legally analysis of this provision, it has to be as following ingredients of the same Article:

Firstly: “This Constitution shall not be amended”;
The intention of the legislator for putting this provision into the Constitution is to make it difficult if not impossible for any person or group of people with majority in the National Legislature to amend the Constitution without following the restricted procedures stated in the Constitution. In other words, such provision was meant to protect the Constitution itself from being violated by government of any president with dictatorship tendencies like President Kiir.

Secondly: Exception, “unless the proposed amendment is approved by two-third of all members of each House of the National Legislature sitting separately”. The most important question here is whether the two Houses in this crisis have maintained their entire members? If no, how will the regime meet the threshold to amend the Constitution even if it is possible to get two-third of members? Of course, the entire members of the two Houses are not there now, hence; did the Kiir’s regime hold any by-elections for those vacancies due to the absence of those members? Factually, some members of two Houses who mainly hail from constituencies whose citizens and particularly Nuer ethnic group were targeted in Juba have abandoned their positions in the National Legislature except few of them who have decided to retain their positions for personal interests.

Nevertheless, the majority of those MPs have left and joined the armed opposition and later they were joined by a good number of members from different constituencies across the Country. The important question is whether they were replaced or not? Procedurally, if a vacancy occurs on the grounds mentioned in accordance with Article 63 of the Constitution, and particularly sub-article (d) which the Speakers of two Houses have applied to dismiss all members who have absented themselves on the grounds of the current crisis. In such case, three mandatory procedural steps need to be fulfilled (1) pursuant to Article 64 (1) of the Constitution, “when the vacancy occurs in respect of seat in the National Assembly or the Council of States, the Speaker of appropriate House, shall notify the National Elections Commission within ten days from occurrence of that vacancy”.

The questions is did the two Houses notified the National Elections Commissions within ten days or not? If yes, whether by-elections were held to replace those members? (2) And I quote under sub-Article 64 (2) “A by-election to fill the vacancy shall be held by the National Elections Commission within sixty days following the occurrence of the vacancy” if not? How are they going to be replaced or how have they been replaced, if yes? As a matter of facts in this matter, President Kiir’s regime has failed to implement its constitutional mandate under Article 64 of the Constitution. (3) It is worth mentioning that, pursuant to Article 64(3) and I quote “No by-elections to fill a vacancy shall be held within the three months prior to the next general elections”. Meaningfully, the vacancies of those members who joined the armed opposition or abandoned their position under any grounds pursuant to Article 63(d) of the Constitution should have been filled as stated in the Constitution before three months prior to the general elections.

Hence, the two Houses will remain without all members until the next general elections are held and consequently, it will affect any amendment of the Constitution in the National Legislature, merely because the National Elections Commission is not allowed under Article 64 (3) to hold any by-election within three months prior to the next general elections. And under Article 199 of the Constitution, it will remain a big challenge to the Government to get two-third of ALL MEMBERS of each House of the National Legislature sitting separately and not two-third of the presence members in that particular session.

Thirdly: “and only after introduction of the draft amendment at least one month prior to deliberations”.

In addition to the previous procedure, the intended draft amendment has to be distributed to all members of the National Legislature before deliberations start on that proposed amendment. The intention of the legislator here is to give an adequate time to all members to study such proposed amendment points so that they are able to preparing their arguments ahead of time and also to avoid rushing with amendments that may cause anarchy and political unrest in the Country as well as the protection of the Constitution itself from any shortcuts to amend it.

In conclusion; It is worth mentioning that the Government in Juba is in a real constitutional crisis which was not predicted by its think tanks. Should Kiir’s regime insist to amend the Constitution without meeting the constitutional threshold that capacitate it to amend or initiate such proposed amendment in accordance with Article 199 read together with Article 64 of the Constitution, such move will remain unconstitutional and whatsoever the result for extension of Government legitimacy will remain unconstitutional and it will be added to President Kiir’s records of gross violations of the Constitution.

It is also worth mentioning that such move can be challenged before the Supreme Court which is mandated by the Constitution to adjudicate on the constitutionality of laws by either set aside or strike down law or provisions that are inconsistent or repugnant with the Constitution. I believe it can be achieved if our Supreme Court has recovered from the sickness of SPLM political interference into the judiciary affairs which we have all witnessed beside some procedural challenges that the Court faces.

Alternatively, the only option which is left for the government in Juba to extend its legitimacy is to take peace talks in Addis Ababa seriously to save itself from being an illegitimate government by July 10, 2015 and most importantly to restore peace and security in the entire Country as a primary responsibility for any responsible government towards its citizens. Otherwise, the Vice President will constitutionally be eligible assume the office of the President in accordance with Article 102(2) of the Constitution pending the elections within sixty days.

*The author is a senior South Sudanese lawyer and a Human Right Activist. He can be reached through email: turukmut@gmail.com.