By: Mut Turuk*
Feb> 13, 2016, It has been observed that the implementation of the Agreement on Resolution of Conflict in South Sudan (ARCSS) has been behind the schedule in term of implementation modalities or timetables since it was signed in August 17th, 2015. Most importantly, the appointment of the 1st Vice President Dr. Riek Machar and the Vice President James Wani has foreseen how the Transitional Government of National Unity (TGoNU) will face complicated legal issues that may need a competent legal team in the office of the Presidency if at all, the parties will implement the Agreement in good faith for the benefit of the entire nation.
This article is an attempt to shed light on President Kiir’s February 11th, 2016 presidential decrees that removed and reappointed the Vice President in the same position and on the other hands, appointing the designate 1st Vice President as per the Agreement. Mostly, the legal implications were in the removal and reappointment of the Vice President and they shall be summarized as follows:
The presidential decrees for removing and reappointing the Vice President had quoted Article 104 (1) and (2) of the Transitional Constitution of South Sudan under title “Appointment and removal of the Vice President”. These two paragraphs are read as follows; (1) “The Vice President shall be appointed by the President subject to approval by a two-thirds majority of all members of the National Legislative Assembly”. (2) “The Vice President may be removed by the President or by a decision passed by a two-thirds majority of all members of the National Legislative Assembly…..etc.” The question is whether or not these provisions apply to the appointment and removal of the Vice President during the transitional period if read together with the Provisions of the ARCSS? By looking at Clause 1.4 which stipulates that “the term and mandate of the incumbent President, the Vice President and governors of the Republic of South Sudan shall be extended for the duration of the transitional period, until such time that elections are held….etc” read together with clause 7.1 which states that “the incumbent Vice President of the Republic of South Sudan shall serve as the Vice President for the Transitional Period”, and by putting these two clauses under critical analysis one would understand that President Kiir and his Vice President James Wani by virtue of being incumbents; that is to say by currently holding offices are to be remained in their positions, and this interpretation will provoke another question as to why the Vice President was removed and reappointed once his position is unaffected.
Indeed, his removal and appointment was redundant; and this shows the incompetency of the legal team in the presidency. Such incompetency was evident by misquoting Article 104 (1) and (2) which is not applicable to the case of the Vice President during the transitional period except it his position fall vacant under certain circumstances. For example, under that Article the removal and appointment of the Vice President is subject to approval of the two-thirds of all members of the National Legislative Assembly. Was it done that way before the President made his decrees? Of course No!
The provisions of Article 104 of the Transitional Constitution of South Sudan, 2011 can be invoked only if the post of the Vice President falls vacant during the Transitional Period for any reason, including mental infirmity or physical incapacity of the holder. See Clause 7.3 of Chapter I of the ARCSS. In the light of this brief analysis, I am of the view that the incumbent Vice President does not need to be removed and reappointed or take oaths of office again as far as the ARCSS is concerned.
Analogically, this was the case with President Omer Al Bashir and Ali Taha during the CPA implementation in 2005 whereby the late Dr. John Garang was the only one who was sworn in as 1st Vice President; similarly, President Kiir is not required to be sworn in because of his status as incumbent and that case applies to the Vice President. Evidentially, President Kiir’s presidential decrees which are believed to be made upon advice of his legal team are redundant, ridiculous and unnecessary; and as such, the legal team has to be held responsible if at all accountability is a norm in the Presidency.
Another legal implication that occurred in those presidential decrees is how to bring the provisions of the Transitional Constitution be in conformity with the provisions of the ARCSS? If the parties are implementing the Agreement in good faith nothing would be difficult; however, with all these obstacles and hindrance here and there one would predict that the implementation of the Agreement will face a lot of obstructions as it has been witnessed in the issue of 28 states.
Nevertheless, the question of conflicts between the provisions of the ARCSS and the Transitional Constitution is addressed by the Agreement under Chapter VIII in which the Agreement has been considered to have supremacy when its provisions come into conflicts with the terms of the Transitional Constitution. Not only that, the Agreement also has precedence on all national legislations and in case of any conflicts, the provisions of the Agreement prevail. It is worth mentioning that Transitional Constitution has been part and parcel of political crisis in the country; and that is why the peace agreement came to have such supremacy on it.
The real challenge as to the implementation of the agreement lies on the failure of the parties to the agreement to fully incorporate the provisions of the Agreement into the Transitional Constitution of South Sudan. Without taking a responsible decision by the leadership of the TGoNU, the Agreement will face legal implications that may impede the chance for national reconciliation and healing as well as the nation building process. Finally, dealing with two separate documents (the Transitional Constitution and the ARCSS) will never serve the purpose of the peace agreement and will impede the smooth implementation of the Peace Agreement through legal and political implications that may arise from time to time. To be continued…..!
*Mut Turuk is a South Sudanese lawyer and can be reached at firstname.lastname@example.org