The Debate: Understanding Federalism,

Proposed Federal system for future South Sudan: Let us serialize it

Part 2

By Sindani Sebit

June 17, 2014(Nyamilepedia) — The second part of these series will mainly focus on the state and legislation at federal level. This includes the declaration of the country, sovereignty of South Sudan, the federal structures that form the government of the Federal Republic of South Sudan. This means that the Federal government is composed of the Executive, the Legislature, the Judiciary and the independent Commissions and offices. These are independent of each other. This part also includes the form of Federal Government. Two proposals are made here which include the Presidential and Parliamentary systems of governance. The basic idea is to enable the people of South Sudan examine the advantages and disadvantages of each system because they have to decide on which one to choose with a full knowledge of what they are choosing. The last part of the article looks at the function or the role of the Federal Government as opposed to the role of the state governments which shall be described in later parts of this serialization and the legislature at the federal level. Two houses of parliament are proposed. These include the Federal Assembly which will mainly be responsible for Federal legislation and the Senate that will be tasked with oversight role on the state and local authorities. It is hoped that this serialization will enable everyone understand the system being proposed and feed us back with constructive suggestions.

Declaration of the country

South Sudan shall be a federal state that shall be a multi-party democratic state consisting of at least 17 autonomous states. In order to get the 17 states, it is proposed that the following current states will be divided into 2 states. They are; Upper Nile, Jonglei, Eastern Equatoria, Central Equatoria, Western Equatoria, Northern Bahr el Ghazal and Lakes. Bentui, Northern Bahr el ghazal and Warrap states will remain as they are now. The proposed division of the 7 states is based on size of the state and populations involved. The aim is to create manageable, viable and self sustaining entities.

South Sudan will have both Federal and state governments. These two levels of government shall be distinct and interdependent but mutually related. They will conduct their mutual relations on the basis of consultation and cooperation.

Sovereignty of South Sudan

Power in the Federal Republic of South Sudan belongs to the people. The people exercise this power either directly in referendum or through their democratically elected representatives. The People delegate their powers to state organs such as:

• Parliament which includes Federal Assembly and Senate and State assemblies
• Federal Executive and executive structures including state executive
• Judiciary and independent tribunals

Therefore, the Government of federal Republic of South Sudan shall be composed of the following three organs of the government. They are:

1. The executive. This will be headed by the President or Prime Minister (whichever form of government the people will agree on)
2. The Parliament headed by the speaker of the Parliament
3. The Judiciary to be headed by the Chief Justice

The three organs of government shall be independent of one another and act as checks and balances on each other. The independence of these organs shall be enshrined in the constitution and guaranteed by tenure of office and separate funding as shall be described below.

See below the graphic representation of the Federal and state governments. In addition, there are independent commissions. They are not subjected to the executive, parliament or judiciary though they may serve some of these organs such as the parliamentary service commission and judicial services commissions. These two commissions are actually meant to strengthen the independence of both the parliament and the Judiciary as will be seen later in sections dealing with independent commissions.

In the graph, you will also notice clear lines of responsibility. For instance, the Parliament and Judiciary are not responsive to the executive and for that matter the President or Prime Minister. The Parliament will be headed by the speakers of both houses of Parliament and the Judiciary will be headed by the Chief Justice. The only legal advisor to the executive will be the Attorney General. Therefore, the Attorney General shall be a member of the cabinet but not the speakers of the two houses of parliament and the Chief justice

Proposed Federal Government structures for South Sudan

Form of Federal government.

The form of the Federal government shall either be Presidential or parliamentary system. This proposal is made for the stakeholders in South Sudan to decide because the two systems are different and have their advantages and disadvantages.

Presidential Federal system.

In this system of governance the president is the head of government. The president is directly elected by the people. The advantages of the presidential system are:

• People participate in “electing” their president directly
• There is likelihood that there will be checks and balances because the executive is independent of the parliament and Judiciary particularly when the president has no majority in parliament
• The president is the icon of the country and has the powers to veto any resolution of parliament when he/she deems it not to be in the interest of the country
• Stability is guaranteed in the presidential system as the president has fixed term in office

The presidential system is however bedeviled by its setbacks. These include:

• In tribalized country like South Sudan, tribal tyranny of numbers can always ensure that large tribes or collusion of large tribes can propagate or dominate the presidency because they will always vote for their own tribal candidate. In fact the American constitution recognized this fact right from the beginning. This is precisely why the president of America, which is the only federal state with presidential system, is elected by Electoral College. Each state is allocated a number of Electoral College and if a candidate gets simple majority in each state he/she takes all the number of the Electoral College in that state. This has worked against the tyranny of numbers.
• The exercise of Veto powers by the president can always work against the aspiration of the people because the president can always veto a resolution not on the interest of the people but on the interest of his/her party
• The presidential system is always expensive because the people have to elect the president and parliamentarians while in the parliamentary system it is only the parliamentarians that have to be elected
• The President usually does not regularly come to the parliament to account for his/her decisions thus making the president to act at liberty without any regard to the feeling of parliament
• In the presidential system, it is rather difficult to change the president easily making some of them become dictators as the case is now in South Sudan
• The presidential system tends to focus electoral campaigns on personalities rather than platforms and programs because the focus is on one person (candidate) and not the party.

Parliamentary system.

In a parliamentary system, the party with the highest number of MPs or commends a collusion with the highest number of MPs in the assembly shall be the governing party. Therefore the Government is headed by a Prime Minister elected by federal Assembly among the party with highest number of MPs or collusion with highest number of MPs. Instead a Ceremonial President shall be elected by consensus by the members of both houses of the federal parliament. The role of such President will be to preside over public occasions such as opening of the parliament, commemoration of martyrs and independence days and receiving and bidding byes to ambassadors.

The main advantages of the parliamentary system are:

• It eliminates the concept and practice of tyranny of numbers because the people will not elect the Prime Minister directly but the members of Parliament who elect the Prime Minister. This means if any person wants to become a Prime Minister he/she should have a party that enjoys country wide support.
• Parliamentary systems are much more efficient, accountable, and less prone to corruption and the quality of the leader is better. This is because the prime Minister is regularly subjected to parliamentary sessions where the Prime Minister and the entire cabinet is called to account for their decisions. This keeps them on their toes and ensures that it is harder for them to do things in secrete or under the table. In addition, usually parties choose their best leaders as party leaders increasing the chance that the country gets the best leader
• Parliamentary system allows the leader to be easily removed once he/she looses parliamentary majority compared to presidential system that the country has to undergo the arduous path of impeachment which rarely succeeds
• In parliamentary system, there is fusion between the executive and the legislature. This eliminates political gridlock and allows the people’s representative to engage the executive directly in debates
• The basis of checks and balances in parliamentary system is the shadow cabinet feature which oversees and scrutinize government activities and this makes the government competitive and transparent

However, the parliamentary system has also its short comings and these include the following:

• The government can be unstable because of changes in MP loyalties or collusion parties disagreeing among themselves leading to call for vote of no confidence on the Prime Minister. However, this can always be mitigated with succession close in the constitution which ensures that the party of the Prime Minister is always called upon to select another candidate to complete the term of the ruling party
• Lack of effective parliamentary oversight because the Prime Minister controls parliament and this may lead to laxity from the part of the government
• Democratic participation of the people in directly electing their president is undermined and this may alienate the people from participating directly in the governance

Functions of the Federal government.

The federal government proposed in South Sudan should only exercise delegated powers. These include:

• Foreign policy, foreign affairs and international trade
• Army and National security
• Customs and tariffs
• Mineral resources and petroleum
• Value Added Taxes
• Monetary, Currencies and coinage
• Measures and weights
• Transport including Airways, railways and communications at federal level, road traffic, construction of national road trunks, pipelines, navigation, civil aviation, space travel and
• Federal policies on health, education, agriculture, veterinary, tourism, energy and public investment
• Immigration and citizenship
• Relation between religion and federal state
• Federal language
• Courts at level of Federal supreme court and federal court of appeal
• Federal economic policy
• Federal statistics and election
• Intellectual property rights
• Labour standards
• Federal public works
• Disaster management

Legislature.

The Federal Republic of South Sudan shall establish two houses of Parliament namely the Federal Assembly and federal Senate. These two houses of Parliament will form their respective functions in accordance with the constitution that will be developed and enacted. Basically the role of Parliament is generally:

• Legislative authority of the country is derived from the people and vested in parliament at all levels
• It must manifest the diversity of the nation
• Represent the will of the people and exercises their sovereignty
• It considers and amends the constitution. However, some amendments many require referendum
• Protects the constitution and promotes democracy
• Sole body for making laws

Role of the federal Assembly.

The Federal assembly which will be the highest legislative organ in the federation shall:

1. Be made up of elected representatives from defined constituencies and special groups. The constituencies should not be based on counties but population. Each constituent should have 50,000 to 100,000 people. Number of constituencies should not be more than 210. The speaker of the Federal assembly is an ex officio.
2. Deliberates and resolves issues of concern to the people
3. Enacts legislation on the following:

• Allocation of national revenue between the national government and state governments at a ratio of 20:80 in favour of the states
• Appropriation of funds and expenditures
• Carry out oversight over the national revenue and its expenditure
• Oversees the conduct of the executive
• Approves declaration of war and extension of state of emergency in a country

Role of federal Senate.

This will be the second tier of the Federal Government. It will be charged with responsibilities over the federal states and local authorities and shall perform the following:

1. Made up of elected representatives from federal states. Each federal state elects 3 representatives and representative from special group within the federal state to the federal senate regardless of the population of the state. The speaker of the federal senate is an ex officio
2. Represents the federal states and protect their interest
3. Debate and approve the bills concerning the federal states
4. Act as oversight to the federal state officers and local authorities
5. Ensures that federal state officers are recruited and removed in accordance to a specified article in the constitution.

General Guidelines (Important summary but not exclusive)

The general guidelines here are mainly focused on membership of both houses, procedures for election, affirmative action for the parliament, exercise of parliamentary powers, privileges and immunities and the role of the parliamentary service commission. The exercise of parliamentary power and privileges is to ensure the independence of Parliament and while the establishment of the Parliamentary Service Commission is to ensure that the parliament is able to government itself and regulate its function according to act of parliament without interference from the executive.

A. Qualification of Candidates

1. Federal Assembly and federal :

• University degree
• Nominated by parties for elections
• Independent candidates must be supported by 2,000 supporters for the Federal Assembly and 1,000 supporters in cases of federal senate during presentation of their papers to the electoral commission.

B. Elections to both houses must be conducted under an independent electoral commission

The role of the electoral commission shall be discussed under the independent commissions

C. Terms of both houses

• Specified in constitution; Suggestion 5 years
• The parliamentary calendar must be independent. This means dates for opening and closure of parliament are predetermined and inserted in the constitution. Therefore, the President or the Prime Minister will not prorogue a parliament at his/her will
• Sitting of both houses can only be extended from these dates under state of war and should not be more than 6 months

D. Promotion of representation of marginalized groups.

• Federal Assembly shall enact law to ensure promotion of rights of such groups such as:
• Women
• Persons with disabilities
• Youth
• Ethnic and other minorities
• Marginalized communities

E. Vacation of office of Member of the Federal Assembly or federal senate

• Among others, member being absent from 6 sittings without written permission from the speaker
• Member resigns from his/her political party
• Member joining another party

F. Recall

• The electorate should have the powers to recall a member of any of the two houses before the end of her/his term
• Conditions and procedure for the recall should be stipulated in the constitution

G. Determination of question of membership in either house. This should be done by high court in case of:

• Validity of election
• Vacancy in the seat of the member of any of the houses

H. Party leaders. Both houses should have:

• Leader of Majority who should come from the party with the highest number of members in the house
• Minority leader who should come from the party with second highest number of members in the house

I. Exercise of Powers

• The Federal Assembly exercises powers through bills that are assented to by the President or Prime Minister
• The Federal Assembly exercise bills that are related to the federal government, the federal Senate exercise bills that relate to oversight over the federal states while the federal state assemblies exercise bills related to state issues in accordance with separation of functions of the government organs

J. Powers, privileges and immunities

• Parliament (Federal and State) is independent of the executive and judiciary
• Must exercise freedom of speech
• Conducts business in open with participation of the public and media
• Petition of parliament by any citizen or group of citizens must be allowed; parliament must pass a law regarding the public engagement

K. Parliamentary service commission

• Set up with specific number of people
• Responsibility is to:
• Provide services and facilities to parliament
• Set up offices and supervise them
• Prepare budget for the parliament; parliament must have its own budget
• Promote parliamentary democracy
• Work for the welfare of the members

L. Other thing to be mentioned and enshrined in the constitution is conduct of business in the parliament which includes quorum, language, voting, committees of the house, standing orders, location and sitting of the parliament and offices of the parliament

Conclusion

As previously stated, the aim of these series to enable South Sudanese read, discuss and crucially understand the form of governance that the SPLM in opposition is proposing so that the form of government that they believe will create permanent peace and prosperity in the country in agreed upon and established. The country needs progress and peaceful co-existence.

Related Articles on this topic:

• The Debate: Understanding Federalism, South Sudan Federalism or Decentralization? June 9, 2014 — By Dr. Richard K. Mulla.
• The Debate: Understanding Federalism, Through The Khartoum Peace Agreement June 9, 2014 — By Deng Elijah
• The Debate: ‘FEDERALISM A MUST FOR A VIABLE STATE” June 6, 2014 — By Gatmai Buom Ruot
• The Debate: Understanding Federalism Proposed Federal system for future South Sudan: Let us serialize it, June 9, 2014 — By Sindani Sebit
• The Debate: Understanding Federalism, Federalism sufficiently not confederacy, June 10, 2014 — By Deng Turuk Liem.
• The Debate: Understanding Federalism United Regions of South Sudan (Federal System), June 11, 2014 — By Rev Bafel Paul Gak Deng
• The Debate: Understanding Federalism, Not Yet Federalism for South Sudan, June 13 – By Deng Lueth Yuang

Sindani Sebit

Nairobi; Kenya