Opinion

CLUTCH ON CONCURRENT POWERS OF NATIONAL AND STATE GOVERNMENT

Poiya Isaac Lagu, (LLM).

Poiya Isaac Lagu, (LLM)

Clutch (verb) means to grasp something example; “He stood clutching a pen”. For a British man, the clutch would mean “to take or try to take hold of something tightly”. How about for an African man in South Sudan? Allow me to humbly take you through this article,I am talking about the clutch of constitutional exclusive, legislative and executive powers of the national government and states there-to as indicated in Schedule (A), Schedule (B), (C), (D) and Schedule (E) of the 2011 Transitional Constitution as amended.Most often; we don’t read the schedules provided in the edge of the Constitution, we find ourselves only reading the articles. Sometimes it’s our own mistake or perhaps we have little interest there-to.

The legal question is; when should the national government be involved in state affairs? My answer is“during the coordination of services or the establishment of minimum national standards or uniform norms in respect of any matter or service (s) referred into Schedule B or Schedule C, read together with Schedule D, with the exception of item one of Schedule B.This is sometimes called enumerated or expressed powers of the national government such as to coin money, sign treaties/issues to do with foreign affairs, make laws to support the Constitution, power to levy taxes, regulate commerce,  create Courts (underneath the supreme court), set up and maintain military and declare war or state of emergency. And the states also has powers such as to determine ownership of property, education of inhabitants, welfare, and protection from local threats, maintain justice system, setting up local government such as counties, payams, bomas and municipalities.

It is clear in the Schedules that the national government can levy taxes and so the states. Then; why should you raise your eye brows when the Central Equatoria State government wanted to process plate numbers of Vehicles?Many complained and also at the time when the state Revenue Authority is collecting the state taxes, also many complained. To me it’s within their powers so long as the terms of payment is simple and for a purpose.

However; there are those concurrent or shared powers such as collecting taxes or borrowing money, setting up courts, creating laws especially those relating to health, safety and welfare. Also setting up minimum wages and building roads. Allow me mention this issue of road! Which government is responsible to construct and rehabilitate roads in Juba city…this is an area of concern, another could say the state government, but to me; it’s the national government because Juba city is a national capital city of the Republic of South Sudan. But; remember, it’s also the state capital of Central Equatoria State. Meaning; it’s a concurrent responsibility. Concurrent in the legal theory also called concurrence or incidental, or concurrency….meaning “need to prove actus reus and mens rea…thus guilty mind for the wrongful action”. To me; it’s the legal opinion that support the conclusion requiring a legal reasoning.

Allow me to refer the concept of Commerce Clause in the United State of America; in the words of Randy E. Barnett, (2001), “Original Meaning of Commerce Clause, 68 U, Chi.L. Rev. 101.That “after independence in 1776, later to 1789, state legislation began enacting laws to relieve debtors to protect their own business (es) from competition, hence prohibiting the national government from threatening foreign access.. Thus the economic down turn…interstate trade barriers.Although there were powers granted to congress to regulate commerce with foreign nations and among several states for the purpose of free trade zone, being what was “necessary and proper”. This concept was followed by Chief Justice Marshall as he was at that time; said in the case of Gibbson vs. Ogden (1824) that; “it’s something enumerated, necessary and proper”.

Therefore; for us here in South Sudan, how do we protect our own small scale businesses, their usual word is free economy! How can you have free economy without protecting your small scale businesses? Or perhaps there are political dissatisfaction and trade barriers? We need to protect our small scale businesses. The principle in this earlier case was maintained in the case of Gonzales vs. Raich (2005) where Justice Scalia said; Congress may regulate even non-economic local activities if that regulation is a necessary part of a more regulation of interstate commerce.

Therefore; although the 2011 Transitional Constitution as amended gives broad power to regulate commerce with foreign nations and states, the general principle is that; where states are incompetent, national government can come in—thus for a reason of harmony but; there is individual mandate (not everything is necessary and proper)…I am saying let the national government not control everything as illustrated in the case of Nfib vs. Sebelius (2012)where it was held by majority opinion that; to compel a person to engage in an economic activity of buying health insurance was beyond powers of congress because its’an individual mandate. To me; this principle is applicable here in South Sudan in a way that each individual statehas enumerated powers.However; if the contrary is proven between provisions of national laws and state laws concerning the issue of concurrent clutch or powers, the national law shall take precedent. Therefore; the concurrent powers of the national and state government if well utilized, we can realize a tremendous development and prosperity in the country. We should drop out political battles. May God / Allah give us the wisdom to manage our country, the Republic of South Sudan!

The Author is a legal expert, he can be reached for commends on tel; (+211)924086970, email; poiyaisaaclagu@gmail.com, Juba!

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