18 Oct 2019

 

The Need For Interim Government In South Sudan

"The people of our country desire peace. The political leadership should listen to demands of the people. They should bury individual differences, and work together to restore lasting peace across OUR Lands."

By Prof Simone E Kulusika*

The title of this article is both inspiring and speculative. It is used in response to media reports in Juba, telling the inhabitants of the city that Dr Riek Machar was in the city but departed to safe heaves. Since Dr Machar is a key player in the Peace Agreement (PA) that has recently been activated in Khartoum, then his coming to Juba means Peace is ‘just around the corner’, however his sudden exit betrays this optimism.

To a critical observer, this is merely a spectacle.
because Dr Machar arrived in Juba in the company of foreigners, including Generals from Khartoum Government, rather than Generals, such as Paul Malong, Thomas Cirilo Swaka, Col. Bagosoro, Ikong Mboro, Razakuluwa and so on, who have stakes in the Peace in our country.

Be it as it may, the people of our country want true peace, which way or how it may be actualized. For them the coming of Dr Machar is a first step in the difficult walk to peace.

But, what are the prerequisites for restoring peace in our country? This article tentatively answers this question in this orthodox fashion: The PA should be inclusive. That is, all armed groups operating in our country, to-date, must be signatories to the PA regardless of the size and orientation of each of them. And regardless whether or not they have partaken in the initial and subsequent negotiations, leading to the signing of the PA.

The Armed Groups, may be differentially treated in terms of sharing the spoils, resulting from the PA. Putting in place measures for confidence building and the amelioration of mistrust or phobia between these groups and amongst themselves, to prevent relapse into renewed cycle of hostilities.

Formation of a ‘Government of National Unity’ (GNU): A government that advocates pacific settlement of disputes, and fosters unity in diversity, anchored on fundamental principles that all are born equal in honour and dignity, and have rights to life, liberty, property and the pursuit of the common good.

The GNU, this article suggests, should be designated, as ‘Interim National Unity Government for Redemption’ (INUGR). Its characteristics may be abridged, as follows:
1. It is to be operationalized within ‘an Interim period’ (IP) of about giver (5) years, a shorter or longer periods, as may be determined, taking into account the nature and complexity of the tasks ahead.
2. The INUGR is to be governed by a ‘National Redemption Council’ (NRC), as a collective political leadership and Head of State. The NRC should comprise seven (7) members. They hold the position of Presidency (or Chairperson) by ROTATION, subject to an agreed formula. Each member of the NRC has a VETO power (or vote). The decision of the NRC is taken by CONSENSUS. Failing which, on the third attempt, the matter shall be referred to the Constitutional Court (ConCourt) for a binding RULING.

3. The IP should be divided into phases: 2 years, 1 year and 2 years. Each phase should address specific issues: Phase 1: repatriation; settlement and reconciliation (a process that is time consuming).
Phase 2: Integration of forces into a national army by process of balancing and Inclusiveness. Phase 3: determination of the nature of State, system of government, constitution making, elections (extension may be needed).

4. The NRC is assisted by a Council of Ministers (CMs). It appoints and dismisses the Prime Minister (PM) and also dissolves the CMs.

5. There should be a National Redemption Constituent Assembly (NRCA). It acts as a legislature. Members of 185 (300 or more is excessive and costly) selected by NRC from a list, submitted by political parties. The Upper House comprises two members from each state: one of them should be a woman. The main tasks of NRCA is to supervise the drafting of a new Constitution.

6. The judiciary should remain, as currently constituted, with necessary changes, including guarantee of tenure. Arbitrary dismissal should be outlawed. Justices of the superior courts should be subject to inquiry for misconduct, and then to be removed by impeachment.

7. The states governments should continue, as of now, except that a Governor should be removed from office by impeachment, initiated in a state lower legislature and confirmed by the Upper House of the state in question. The number of state ministers should be reduced to cut cost.

3 NEW BEGINNING: The inauguration of INUGR should mark a NEW BEGNNING for our country. A new beginning for us to re-assess OURSELVES and establish new institutions for a better living for us and the GENERATIONS to come. This dictates on all of US the following obligations:
a. We must choose NEW NAME for our country. ‘SS’ is unpleasant and reminds US of OUR painful past. The Communists who suggested ‘SS’ had their reasons which we do not share (SS is used in this section only).
b. We need to have a simple, but meaningful National Flag. A Flag any ordinary men or women can make and remember (the meaning of the colours of the Flag).
c. We should write and compose a new National Anthem that glorifies our painful past and urges us to aspire to the top of the nations of the world. d. We must re-state the nature of OUR state: Republic-Unitary; Republic-Federated; Monarchy-Unitary; Monarchy-federal, etc. e.

If OUR choice is Republic-Federated, we must ascertain what kind of federal system? Presidential federalism, as in Nigeria, USA, etc. Parliamentary Federalism, as in Canada, Germany, India, etc., or a confederalism, as found among Nilotic ethnic groups, or as found in Switzerland.

It is noted that defining the nature of state is vital for constitution making. If the choice is Federation, this requires that there should be a clear Separation of Powers and checks and Balances. This must be enshrined in the Constitution, in addition to a Bill of Rights that limits the powers of government and to promote democracy, and prevent despotic tendencies.
f. Under federal system of governance, the judiciary has crucial ROLES to perform. It is the Custodian of Constitution of the state and the constitutions of the various states forming the Union. That is, it ensures the sanctity of the constitution to prevent subversions. It interprets the constitutional text and the provisions of other statutes and international agreements, treaties and conventions. It applies those texts and provisions. It resolves disputes and controversies between contending parties. It promotes and protects human rights and fundamental freedoms.
As such, it must be independent. The judges must be impartial in adjudication. The justices must have secured tenure and they should not be randomly sacked.

g. The judiciary should have Supreme Court of the Republic; Constitutional Court (Con Court): the two have equivalent ranks; Court of Appeal; High Courts; Magistrates’ Courts; Local Courts; Chiefs Courts, and tribunals. The states should have similar courts, but should not have a constitutional court which deals with constitutional issues as original and appeal court. Appeals from state Supreme Court go to the national Supreme Court. The Con Court does not rule on cases involving the Bill of Rights as an original court. This is the function of the High Courts at both national and state levels, unless constitutional or statutory interpretation arises in the case of trial.

h. The Chief Justice is the Head of the judiciary. He or she presides over the national Supreme Court. The Con Court is to have a president.

i. The current 32 states are too many and economically expensive to sustain. We suggest 26 states, a compromise number: greater than 21 (Machar) and lower than 32 (Kiir). Greater Bahr and Ghazal 9 states; Greater Equatoria 8 states; and Greater Upper Nile 8 to 9 states. The parties to the agreement should weigh the reaction of the occupants of current states, or those states to be abolished or merged.
j. A federation and federal system of governance is advocated here for compelling reasons. It is flexible, as it is based upon the principles of cooperation, coordination, collaboration, partnership and solidarity. It promotes democracy through mass and effective participation in governance and decision-making from bottom up. It reduces intense sense of ethnicity and encourages social cohesiveness and integration. It fosters economic reliability and sustainability. It promotes dialogue in the management of disagreements. It is educative, as participation offers a forum for learning and exchange of views between political and social actors. Importantly, it combats dictatorial idiosyncrasies and tendencies. It is dynamic and responsive to social and legal changes.

The people of our country desire peace. The political leadership should listen to demands of the people. They should bury individual differences, and work together to restore lasting peace across OUR Lands.

*Simone E. Kulusika, Associate Professor, Zambia Open University (+260 973 711250)
 

Posted in: Home, Opinions
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22/09/2019, 11:33 AM
 - Posted by Jacob Akol
I suggest this proposal, if not already part of the Revitalised Agreement on Resolution of Conflict in South Sudan (R-ARCSS), be seriously and immediately considered by the R-IGoNU when set up in November. To drive towards elections without a properly debated constitution would simply be burying our heads in the sand, having learned nothing from the recent past, refusing to open up a new path and heading straight back into more devastating conflict.
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