THE LAW DOES NOT ALLOW YOU TO DISSOLVE YOUR PARTY STRUCTURES MR PRESIDENT!

"I want to say something about our structures. SPLM structures are not functioning. And we must accept that. We were supposed to hold the convention in May this year. Was it not the end of the 5 years? Do you think that today the structures still have the legitimacy to continue functioning? No, SPLM has dissolved itself alone. Only office of the chairman is the one not dissolved, nobody can dissolve it. Now I have all the powers to set up a committee to start reorganization from the grass root. When we talk about the National Liberation Council, or we talk about the Political Bureau, all these things are outdated. Even you in the secretariat; but now you the secretariat are caretakers to continue the duty of SPLM until when you are replaced or until when you are reappointed.

These were the words attributed to the SPLM’s Chairman and the President of the Republic of South Sudan, Salva Kiir Mayardit, during the opening of the SPLM leadership house in the capital, Juba on Friday 15, 2013. The comment sparked, and rightly so, widespread speculation, from all the media outlets including all the Facebook groups I am a member of, that the President has dissolved all the governing and subordinate structures of the ruling party, including the party’s highest executive organ, Political Bureau (PB) as well as the National Liberation Council (NLC). A friend of mine called me to ask if the Chairman had powers, let me not use “powers” because it’s become a tyrannical word these days; he was asking me if the Chairman’s [attempted] move was legitimate as per the Party’s Constitution (2008 edition, which is the latest). So this article serves as a response to my good friend, and all those who might be wondering about the legitimacy, or lack thereof, of Chairman’s imminent move.

Before going into the details of the constitutionality of Chairman’s move, if it officially happens (because it hasn’t), I want to confirm that the Chairman meant what he said and he is going to dissolve the Party structures. As the old saying goes; there can never be a smoke without fire, the dissolution is real, whether it is constitutional or not is another inquiry.

On the constitutionality of the anticipated dissolution, I have endeavored to diligently peruse the provisions of the SPLM Constitution (2008). Having done so, it became apparent, to me, that the Chairman had no legal basis for his words, and will have none if he actualizes them. As a matter of law, there is no single provision of the party’s constitution (SPLM Constitution, 2008) that grants authority to the chairman to dissolve the structures of governance of the ruling party. His functions and duties are contained in article 25 (1), and includes the Chairman’s authority to;

a) Nominate three candidates for the positions of Deputies of the Chairperson for endorsement by the NLC.

b) Nominate members of the PB for approval by the NLC;

c) Nominate not more than three candidates for position of SG for election by the NLC;

d) Be the head of the SPLM and the Chairperson of the NC, NLC and PB;

e) Preside over the meetings of the NC, NLC, PB and the General Secretariat as the situation may require;

f) Ensure that the policies and programmes of the SPLM are correctly disseminated and implemented;

g) Supervise all the organs of the SPLM and ensure that they perform their functions and duties in an effective and efficient manner;

h) Present policy statement and any other relevant documents of the Party to the NC, NLC or the PB;

i) At his or her discretion, provisionally delegate any of his/her functions or duties to any SPLM organ or national officer;

j) Determine the order of precedence of his or her Deputies.

k) Perform any other functions as he or she deems necessary for the proper implementation of the Party’s policies and programs.

I will not be surprised if the Chairman and his legal team attempts to rely on sub-article 1(g) and (K), because these are the only two sub-articles that are subject to wider interpretation. His supervisory role puts him as the first person in first line of management, monitoring and regulating the organs of the Party. But does this authority extent to extermination of the party structures? My answer and that of logic would be a big NO. The party is not a private entity subject to private rules of supervision. It is governed by democratic rules of checks and balances. Any excess of authority is against every fibre of democracy.

In the same breadth, relying on sub-article (K) will even be worse than the last (g). It will be a total affront to the guiding principles of the party, which include a stipulation that a party be guided by democracy and political pluralism, prosperity, harmony and social cohesion (see article 5(1)); and, Participatory democracy, respect of democratic institutions, and collective leadership (article 5(7)). Thus, if the Chairman goes ahead and dissolve the party structures, he must know that he will be stifling the above principles, and fundamentally, violating the very Constitution he derives his powers from.

On the issue of whether the Party organs’ term of office has lapsed: I think the Chairman was being economical with the truth. The Party Constitution does not provide for any duration for holding the office (term of office) contrary to what the Chairman said above. Even if the Constitution did provide for this term of office, it would have been illogical to purport that the lapse of term of office would only apply to all the party structures but the office of the Chairman. The term of office of all office holders in the above structures including that of the Chairman ought to run concurrently; and the same ought to have been expressly provided by the drafters of the party constitution. Leaving any room for anyone to claim that “SPLM has dissolved itself alone…and that only office of the chairman is the one not dissolved, because nobody can dissolve it”, is tantamount to cultivating the seeds of tyrannical governance of our institutions……

I am fully aware that the Chairman is under political pressure. His 2015 re-election ambitions (as the President of the Republic) are under threat; and these threats stems from the same Party he heads. That should not be a license to circumvent democratic principles of governance and leadership. If he dissolves the Party structures, his actions will not only be politically wrong but will lack constitutional legitimacy. I know José Martí tells us that “The first duty of a man is to think for himself”, which the President is currently doing, but doing so when at the helm of leadership and at the expense of what is legally right and moral is an erasable betrayal of the values we dearly hold; that man shall lead with integrity and fidelity to the letter and spirit of the law.

We need not be so blind with “patriotism”, tribalism and nepotism that we can’t face the reality. Wrong is wrong, no matter who does it or says it!!!!

ESTABLISHMENT OF "THE OFFICIAL GOVERNMENT BULLETIN" BY THE MINISTRY OF INFORMATION AND BROADCASTING IS A STEP IN A RIGHT DIRECTION

I am quiet impressed by the Ministry of Information and Broadcasting's move to establish an "official government bulletin"  Magazine. Access it at http://www.goss.org/. This move "semi-actualizes" the letter and spirit of Article 24 (1) of the Transitional Constitution which equivocally sates that "every citizen shall have the right to the freedom of expression, reception and dissemination of information, publication, and access to the press without prejudice to public order, safety or morals as prescribed by law," and, fundamentally, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which provides that;

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or moral

I argue that the move semi-actualizes the above two authorities because it satisfies the 'provision of information' bid and neglects the cardinal principle of the freedom of expression which has been stifled in the Republic of South Sudan since independence.This is a topic for another day. But the major issue here is the obligation of the government to feed its citizenry with the information of what it does on a daily basis.

The right to freedom of information, and particularly the right of access to information held by public authorities, has attracted a great deal of attention recently. In the past five years, a record number of countries from around the world – including Fiji, India, Japan, South Africa, Trinidad and Tobago, the United Kingdom and a number of other European States – have taken steps to enact legislation giving effect to this right. In doing so, they join those countries which enacted such laws some time ago, such as Sweden, United
States, Finland, the Netherlands, Australia and Canada. Intergovernmental bodies have also started to devote more attention to this issue, with significant developments at the UN and Commonwealth.

The importance of freedom of information as a fundamental right is beyond question. In its very first session in 1946, the UN General Assembly adopted Resolution 59(I), stating, “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.” Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, elaborated on this in his 1995 Report to the UN Commission on Human Rights, stating: Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked." These quotations highlight the importance of freedom of information at a number of different levels: in itself, for the fulfilment of all other rights and as an underpinning of democracy.

It is perhaps as an underpinning of democracy that freedom of information is most important. Information held by public authorities is not acquired for the benefit of officials or politicians but for the public as a whole. Unless there are good reasons for withholding such information, everyone should be able to access it. More importantly, freedom of information is a key component of transparent and accountable government. It plays a key role in enabling citizens to see what is going on within government, and in exposing corruption and mismanagement. Open government is also essential if voters are to be able to assess the performance of elected officials and if individuals are to exercise their democratic rights effectively, for example through timely protests against new policies.

It is increasingly being recognised that states are under an obligation to take practical steps – including through legislation – to give effect to the right to freedom of information. It remains somewhat unclear, however, precisely what the basis of this obligation is. The jurisprudence, both at the international and national levels, has been somewhat equivocal, variously grounding the obligation in the right to freedom of expression, the right to private and family life or the right to freedom of thought.

As I argued in my previous articles, the fact that we are still a young nation should never act as a license of poor performance by the public authorities. But today I am impressed by Micheal Makuei Lueth and the Staffs in the Ministry he heads. The moment of pride came when I  read Makuei saying as folows"

"Dear reader
I am delighted to introduce the first edition of the Official Government Bulletin.
This is an extremely important publication designed to ensure the public enjoys ready access to key decisions made by both the President and Ministers. During this early period of nation building, it is essential that men and women across South Sudan understand what the Government is doing in their name. This process of engagement will help strengthen the foundations of democracy and the values of justice, liberty and prosperity we all hold dear.
The Government Bulletin is printed by The Government Printing Press. Coming at a time that we are revamping the government web-site and are looking at how the Media Laws might become operational, once fully enacted, all these measures stand as testimony to our determination to ensure that government communications are effective and coherent, that we have the means of becoming fully engaged with the public and responding to their information needs.
I acknowledge the commitment and support of the former Minister and Deputy Minister of Information & Broadcasting, colleagues and the Secretary General of the Government in initiating this project and to the Capacity Building Trust Fund (cbtf ) for its support.
We are also indebted to officials in the office of the President, the Ministries of Cabinet Affairs and Information & Broadcasting, the Public Information Centre, the Government Printing Press and indeed all Government Ministries and Institutions for collaborating in the production of this first edition of the Official Government Bulletin. We hope the Bulletin will prove informative and we look forward to receiving feedback"

Kudos to the Ministry of Information and Broadcasting! Now the next stage in fulfillment of your obligation is fast tracking the media laws and protecting the freedom of expression.

LEARN FROM HISTORY BEFORE YOU DISREGARD "SEPARATION OF POWERS"!

The Current regime in Juba needs to lean from the experiences of other democracies before it goes to the next phase of parliamentary intimidation and manipulation of judicial processes. In America, Franklin Delano Roosevelt enjoyed popular support when he crushed dour incumbent Herbert Hoover and carried the Democrats to a solid majority in Congress during the 1932 elections. Riding on this popular support, he  signed 15 major pieces of legislation designed to relieve the suffering of millions and extricate America from the Great Depression. This era was widely touted as "New Deal era".
But by 1936, the New Deal had begun to falter. Conservative businessmen, who found themselves heavily taxed and regulated by the new legislation, pushed a string of challenges to Roosevelt's programs through the courts. On January 6, the Supreme Court made a ruling that struck at the very heart of Roosevelt's reforms. FDR's response to the ruling would irreparably damage the New Deal.
In a six to three ruling, the court invalidated FDR's Agricultural Adjustment Act, which provided subsidies to farmers who decreased production of certain commodities. The Court ruled that the processing tax which funded the subsidies was unconstitutional, and that the states, not the federal government, had the power to regulate agriculture.
Roosevelt realized that if the court applied this states-rights reasoning across the board, the New Deal would crumble.
Infuriated by the Courts stance, Roosevelt decided to intimidate the Judiciary by launching in 1937 following is second term victory of 1936, with little or no warning, what would become known as his "court packing" plan. Citing the inability of the federal courts to deal with an overwhelming caseload, he proposed judicial reforms, including the addition of one justice to the Supreme Court for every one who did not retire by age 70-1/2, with a maximum five justices added.
His plan to influence the Court provoked outrage nationwide. Many perceived it as an attempt to rig the American judiciary system and give the executive branch almost dictatorial power. In a public speech in March, Roosevelt managed to turn American opinion his way, but when the Supreme Court reported that it had no problem keeping up with its caseload, support for his plan declined.
The attempt to influence the Supreme Court was one of the worst episodes of Roosevelt's presidential career. For the first time since his election, FDR had been publicly humiliated and utterly defeated -- in a battle he need not have fought.

Changing gears, the recent apparent intimidation of the Parliament in Juba (News has it that the President had threatened to dissolve the parliament if they don't approve his choice for VP position) would satisfy the short-term goals of the executive.....including rubber-stamping the appointment of Hon. J. Wani Igga as the Vice President and any other appointments the President is like to make in coming days that need parliamentary approval. But these moves are going to hurt the ruling party, including Uncle Kiir's chances of defending his seat, in the long run (probably 2015).
Public opinion is a major factor in Major political battles. Machar seems to be courting this lucrative factor at the moment, while Uncle Kiir and his handlers, through his recent actions (above), seems to be overestimating it. When the Parliament rejected the appointment of Hon. Telar Ring as Justice minister, its move was popularly touted as a win for the doctrine of separation of powers, moreso by President's acceptance of the Parliamentary decision.
Within two years of our independence, the doctrine of separation of powers has only been on the Paper (Transitional Constitution). Its practical application has been a mockery. Like Parliament, Judiciary has not been left to carry out its constitutional mandate without "long hands" of the executive hovering over its chambers. Pagan Amum case against The Citizen News Paper serves as an example of the lack of Judiciary independence from the executive. Pagan managed to use his influence (or that of his bosses) to win a defamation case against the News Paper company that had aired his alleged theft of 30+ millions dollars. The manner in which the verdict was reached was controversial, even made worst by conspicuous presence of the Chief Justice and President of the Judiciary Chan Reec Madut during the judgement delivery by the high court.

But what will put the regime in disrepute like President Roosevelt is not its manipulation of judicial processes (People are used to that), but the current intimidation of the Parliament which had won the hearts of majority of citizens in the manner it handled Telar's saga.
As they say, "history repeats itself," it is certainly going to repeat itself this time not in USA but in South Sudan, if the regime continues with this belief of "when one is popularly elected, his mandate supersedes that of other constitutional institutions and is bound to rule by his whims as opposed to ruling by the law of constitution!
LEARN FROM HISTORY AND FOLLOW THE RIGHT PATH!!!!!!!