President Salva Kiir’s Decree Violated South-South Dialogue Agreement
January, 23, 2011
The decree issued by President Salva Kiir Mayardit on January, 21st, 2011, forming “a Constitutional Review Committee”, violated the agreement concluded by South Sudan political parties with SPLM on Oct, 17th, 2010. As per the terms of the last year South-South Dialogue Final Communiqué of all the parties, there are steps that have to be taken prior to formation of Constitution Review Commission. The first step President Salva Kiir Mayardit should have taken is to consult with leaders of other South Sudan political parties to work out the modalities of forming a constitutional review commission.
It is the understanding of all political forces that after the successful conclusion of the South-South Dialogue, South Sudan Leadership Consultative Forum was formed to steer the South towards nationhood. As a result of that, a roadmap was created to ensure that the SPLM and all political parties would hold a conference in Juba to guide the future governance of the region after the referendum. The Final Communiqué, which was endorsed by all political parties including the SPLM, stipulates that a constitutional review conference will be conducted after the referendum and will agree on the specifics of the formation of a new transitional broad-based government by 9 July 2011.
The decree of President Salva Kiir caught the people of South Sudan and the international community by surprise due to the fact that it contravened the terms all the political parties agreed to last October. First, the October 2010 Final Communiqué of all the parties called for the formation of Constitution Review Commission. The “Constitutional Review Committee” stated in the President Kiir’s decree seems to have no political connection with the terms of the last year agreement of all the political forces. To refresh the memory of all those concerned, it is important to note that article 3 (b) (i) of the last year communiqué states that in the event that separation is the choice of the people of Southern Sudan in the referendum, “GOSS shall establish a National Constitution Review Commission to review the current interim constitution of Southern Sudan for adoption by the SSLA as a transitional constitution”.
Reasonable people would not fail to realize that the understanding of all the parties was that prior to the formation of the Commission, the leadership forum, which is composed of all the leaders of the Southern political parties, would sit down to nominate persons who will form the commission. Unfortunately, the decree of President Salva Kiir not only failed to consult the leaders of South Sudan parties, but also formed a committee which was not agreed upon in the first place. To add insult to injury, the committee President Kiir formed combined members of South Sudan Legislative Assembly (SSLA) with the GOSS cabinet ministers in violation of the last year Final Communiqué which does not require members of SSLA to be part of Constitution Review Commission because the SSLA is the last body that is supposed to review the work of the Constitution Commission. If the chairperson of the SSLA’s Constitutional committee is also part of the so-called “constitution review committee”, it follows logically that there would be no need for SSLA to adopt the final review of the constitution because its members are already part of the committee. Moreover, the neutrality of SSLA is compromised if the chairperson of the constitutional committee of the August House is also a member of the so-called “constitution review committee”.
It goes without saying that the intention of the decree is very confusing let alone the fact that the composition of the committee itself is unexplainable. If the committee was intended to be GOSS Cabinet committee entrusted to oversee the formation of Constitution Review Commission as it was agreed upon by all the political parties last October, then, there was no need to include judges, private lawyers and members of SSLA. The last year communiqué stated that “GOSS shall establish a National Constitution Review Commission to review the current interim constitution of Southern Sudan for adoption by the SSLA as a transitional constitution”. The phrase “for adoption by the SSLA” would not allow members of SSLA to be part of Constitution Review Commission because it is the SSLA that would eventually study the work of the commission prior to its adoption by the August House. If the chairperson of Constitutional committee of the SSLA is also part of the so-called “Constitutional Review Committee”, it means that the SSLA will not independently study the work of the committee before its adoption and this begs the question whether the President of the GOSS had a proper legal advice prior to issuing a decree.
It is a mistake for the President of the GOSS to think that consultation of other political parties is not required for the review of the Interim Constitution of Southern Sudan. The terms of last October dialogue do require the involvement of other political parties in the review because it is the reviewed constitution that would serve as the post-independent transitional constitution before the adoption of permanent constitution, which would take more than a year to complete. The processes of permanent constitution require that the coalition government that shall be formed after July would convene an all-party constitutional conference to deliberate and adopt a constitutional system for the new independent and sovereign state of South Sudan. If other political parties are not involved in the review of Interim Constitution of South Sudan, the question that poses itself is whether a coalition government would be formed after July that would include all the political forces of Southern Sudan.
The international community needs to be concerned with the political developments taking place in South Sudan because the decree of President Salva Kiir is the first violation of South-South Dialogue concluded last October. If the political forces in the South cannot work together starting from now, the international community should be concerned about the future political stability of South Sudan. If South Sudan political forces cannot work together during transitional period prior to constituency and presidential elections, it should be reasonably concluded that stability in the South would be difficult to attain.
Mr. Gordon Buay
Former Secretary General of South Sudan Democratic Front (SSDF) and the signatory of Washington Declaration between the SPLM and the SSDF in 2008.
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