"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Political Bureau, all these things are outdated.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!!!!
