Where did we go wrong?
By Odongo Odoyo,
It is not always that we are right although at Juba Monitor, we try to minimize mistakes at all the time. It is unfortunate when such mistakes are forced on us intentionally or by design. I am saying so because yesterday our page eight went blank after being removed from the printing press the previous evening by security agents. (They have promised that they are doing something about it internally). Whatever they are doing is not important now because the damage caused is irreparable. What we are asking is “where did we go wrong?” Yesterday, the Editor In Chief and her editorial team had grueling tasks to answer questions from the general public, some calling on physical visit, demanding to know what went wrong and why the page was empty, removed. The answer we gave fell short although some believed and some remained non-committal. The true position is that there is public debate in the country right now with stands on whether or not the President had the powers to appoint members of the constitutional posts in the states. The debate is in the public domain through media outlets and other recommended platforms. Following the act by the security organs of removing the article and while we appreciate the concern by the National Security and Media Authority over the matter, we as service providers to the general public stand by the right to give each and every individual to be heard as long as the article presented is balanced without innuendoes and truthful to the subject in question. Therefore by public demand Juba Monitor is publishing the same article removed in its total original form and let them decide for themselves where we went wrong. (See Page 8)
LEGALITY OF PRESIDENT KIIR’S ACTION IN APPOINTING STATE GOVERNMENTS
Juol Nhomngek Gec, Juba South Sudan
Is it Constitutional for the President to appoint the Officials in State Governments from Governors to County Commissioners and any other Constitutional Post Holders? In answering this question, many people have argued that it is not legal for the President to appoint all the State Governments from the State to County levels while others have argued that it is legal for the President to appoint State Governments as a whole.
At this point I would like to agree with those who argue in favor of President Kiir appointing the State Governments for the reasons I will give later in this work. But before I give those reasons let us look at the question we need to answer in arguing our points in this legal discourse.
The question is where is the legal problem in all these messes? The legal problems with the current Agreement are its supremacy clauses in Chapter VIII in Articles 8.1, 8.2. 8.3 and 8.4. Chapter VIII itself in solving the problems that arise in the course of implementation of the Revitalized Agreement compounds them. Consequently, Chapter VIII has given parties equal status and once they have disagreed over the course the implementation of the Agreement should take, then the parties have to sit down to renegotiate the Agreement or agree to fill the gaps in Agreement by agreeing afresh. This is what is termed collegial relationship in the Revitalized Agreement.
Collegial relationship implies that once there is a conflict between or among the parties in regards to their functions and powers, such a conflict should be resolved in friendly way. The resolution of such a conflict is found in the Revitalized Agreement which mutes the Constitutional provisions as the Constitution becomes like any other legislation but not the supreme law of South Sudan. The Revitalized Agreement then assumes the status of the supremacy over any other laws.
In respect, Chapter V III of the Revitalized Agreement is basically on the Resolution of any conflicts associated to the implementation of the Revitalized Agreement, which has become a serious limitation on the executive powers of the President. Bearing this in mind then we must sit down to analyze the Revitalized Agreement.
In seriously analyzing the Agreement we can discover that the serious question that has never been answered and which the Agreement is silent about is who should appoint the Government Officials after their nominations by their respective parties at State levels?
The silence of the Revitalized Agreement on the above question as to who should appoint Government Officials at State levels brings in another question as whether the authority who should appoint has the power to remove any Government Officials he or she appointed irrespective of their parties? This question is not answered in the Agreement because the question who should appoint is not also considered in the Agreement.
As we all know, in normal cases under the Constitution, where there is no higher ground norm but the Constitution is the only supreme document, the appointment is done in accordance with who has the powers to fire. So, according to normal law, he who hires fires.
However, under the Revitalized Agreement, the Parties are entitled to nominate their nominees and remove them according to their own laws but who should appoint them after nomination is a question because no one has a power to dismiss the Officials from other parties without the consent of those parties that nominated them even if he or she appointed them in the first place.
Hence, the conflict then arises as to who should appoint since the one appointing does not have the power to dismiss. The silence of the Revitalized Agreement on this fundamental question which is the heart of the Revitalized Agreement creates more confusion and conflicts to the public at large as the public knows only the Constitutional powers given to the President and Governor.
Nonetheless, the Agreement in Chapter VIII tries to resolve such a conflict by putting Revitalized Agreement above other laws of South Sudan. According to Article 8.3., the Revitalized Agreement is the Supreme law and the Transitional Constitution of the Republic of South Sudan, 2011 becomes like normal legislation in case of any conflicts.
It implies that in the event of a deadlock or a tie in the exercise of joint Executive powers concerning the appointment of Constitutional Office Holders including State Governors, in the appointment and establishment of the Independent Commissions, the matter shall be decided by the Council of Ministers, which shall require the agreement of two-thirds of all the members of the Council of Ministers (67%). The decision of the Council of Ministers shall be final (Articles 188.8.131.52. 4., 19.6 1.4.1., and 184.108.40.206.4 2. R-ARCSS)
In addition to the provisions of the Revitalized Agreement, article, 1.9.6. 1.4.4. Provides that the President, the First Vice President, and the Vice Presidents shall seek to reach the agreement on matters of supervision of the implementation of the Agreement, failure of which, decision shall be reached with an agreement of at least four (04) of them, where one must be either the President or the First Vice President.
The above provisions are the answer to our question as to who has the power to appoint. In fact, according to the Agreement, the President does not have the power to dismiss any member of the oppositions working in the Government. What the President can do is to request for the Party who sends a person he wants to remove to endorse the request to remove that particular Government Official or Minister.
This, by implications extent to the State levels. At the State levels, the Governor does not have the power to appoint nor dismiss the member of the oppositions working under him or her and vs-vs. For that reason, he or she does not have the power to appoint.
In order to solve the conflict that arises over who should appoint the Governments at State levels, the Presidency and Council of Ministers referred to Chapter VIII read together with Article 220.127.116.11.4. Hence, they agreed that President should appoint all the Governments at both State and National levels. This decision was also reached probably because if the Governors were given authority to appoint though they could not dismiss the members of parties, the crisis would still have come up due to corruption. This is because the names of the persons nominated by their own parties would have been changed through bribery and fraud.
Therefore, it was found save to authorize the President to endorse the nominees of the, Oppositions to R-TGONU. In fact, the language that President appoints the Government should be changed to the President endorses the Government of South Sudan. This is because the President does not have power to dismiss the members of the oppositions though he has power to appoint Government Officials.
In such a case where a person appoints but does not dismiss, then the question as to who should appoint becomes redundant legally as it has become an academic exercise. The appointment does not have any legal implication in regards to removal.
In conclusion, the appointment of the State Governments by the President is part of the duties of the President as agreed by the Council of Ministers and the Presidency. Thus, the President acted in accordance with the Revitalized Agreement and the appointment is legal under the laws of South Sudan.