By Nhial K. Wicleek “The essence of despotism is that there is no appeal, either in practice or in law, against the unchecked power of the master. The sole object of the subjects must be to please. There is no parliament, no opposition, no free press, no independent judiciary, no private property protected by law…
February 11, 2010 (Khartoum) — 1. Yesterday, 8/2/2010, the National Supreme Court decided to dismiss on procedural grounds the objection deposited before it by the SPLM-DC to the nomination of General Salva Kiir Mayardit to the office of President of the Government of Southern Sudan. A translation of the decision of the Court is attached. It did not look into the substance of the objection. The essence of its decision was that the objection should have been decided upon by the National Elections Commission.
2.The SPLM-DC had on 5/2/2010 deposited the said objection to the National Elections Commission on the grounds that: (1) General Salva Kiir is still an active officer in the SPLA which is recognized in Article 144(1) as a national organized force which members are prohibited by Article 12(2)(a) of the Political Parties Act 2007 from involvement in politics, and (2) his attestation as part of the nomination requirements to respect the Comprehensive Peace Agreement is not valid since in practice he was violating the same. A copy of the objection document is attached.
3. The background to the objection is that the High Elections Committee for Southern Sudan in Juba in compliance with Article 45 (1 and 2) of the National Elections Act 2008 read together with Article 10(1 and 2) of the General Elections Rules 2009, published on 29/1/2010 the list of the nominations to the office of President of the Government of Southern Sudan, and made it public that the parties concerned may raise objections on Form (11) to any nomination within seventy two hours from the date of publication above.
4. The SPLM-DC did make the objection which it handed to the National Elections Commission on the 1st of February 2010 so that the Commission could decide on it in accordance with Article 10(3) of the General Elections Rules 2009. The Chairman of the Commission, Mr Abel Alier, wrote to the SPLM-DC on the 2nd of February advising that it may, if it wished, “complain/appeal to the National Supreme Court which has established a special court in Khartoum, to look into complaints/appeals on nominations”. A copy of this letter is attached.
5. The SPLM-DC replied back on the same day stressing that the decision was within the competence of the Commission and not the Court as is clearly stipulated in Article 45 of the Act and Article 10 of the Rules. The SPLM-DC enclosed a letter which Mr. Abel Alier had written secretly and without the knowledge of the other members of the Commission on 21/1/2010 to General Salva Kiir Mayardit advising that he may nominate himself or be nominated by others. Abel’s letter which is self-explanatory is attached. In its reply to the Commission’s letter the SPLM-DC explained that Abel’s letter was based on false information given to him by Minister Dr Luka Biong Deng that General Salva Kiir was retired from the SPLA by the late Dr John Garang in May 2007(sic) and that the objection provided facts questioning this false information on the matter. The SPLM-DC’s letter to the Chairman of the Commission dated 2/2/2010 is attached.
6. The Commission did not reply the last SPLM-DC’s letter and the party had no option but to resort to the National Supreme Court on 5/2/2010 as advised by the Chairman of the Commission above.
Date: 5/2/2010 His Justice President of the Objections Circuit In Relation to the General Elections, The National Supreme Court, Khartoum. Subject: Objection to the Decision of the National Elections Commission Accepting the Nomination of General Salva Kiir Mayardit for the office of the President of the Government of Southern Sudan February 11, 2010…
To: The National Elections Commission
Subject: Request to strike off the name of General Salva Kiir Mayardit from the list of candidates for the position of President of the Government of Southern Sudan
(On the strength of Article 45(1) of the National Elections Act 2008 and Article 10(2) of the General Regulations for Elections 2009)
February 11, 2010 (Khartoum) — General Salva Kiir Mayardit holds a military rank (General) and is still active in the SPLA and hence he is not qualified in accordance with Article 12(2)(a) of the Political Parties Act 2007 to seek election without resignation from the army. That the SPLA is an organized force is affirmed by Article 144(1) of the Interim Constitution of the Republic of Sudan 2005.
Facts of the Case
1. In July 2005, the SPLA’s officers ranks (Lt to Commander) were changed to the conventional ranking system (Lt to Field Marshall). Members of the Leadership Council, including Cdr Salva Kiir Mayardit were absorbed into the rank of Major General and simultaneously retired as Lt General.
2. When the reconstituted Leadership Council met in August to choose a successor to the late Dr John Garang, Mr. Salva Kiir was endorsed as the Chairman of the SPLM and reinstated in the SPLA as Lt General. I was present in that meeting.
3. Since then he has been exercising powers in that capacity. A sample of orders he signed as Lt General in the SPLA is attached.
4. Some time in 2006 he promoted himself to the rank of full General (or First Lt General, as is erroneously referred to). He put on the uniform with that rank. The photos attached testify to this fact.
5. He continued to exercise his powers as General in the SPLA. A few examples will suffice. He heads the recently formed military Command Council, composed of more than 40 senior SPLA officers. In his capacity as a General, he has been graduating SPLA soldiers in uniform (see the accompanying recording).
6. He has an office in the SPLA HQ in Juba. No Commander-in-Chief who is not in active military service can have an office in the military HQ.
7. The claim that he was retired on 17 July 2005 is belied by the above facts and later statements made by two senior members of the SPLM in January 2010. On the 13th of January, Dr Luka Biong Deng, Minister of Presidential Affairs in the Government of Southern Sudan, a close aide to the President, ruled out the possibility of General Salva Kiir stepping down from the army for nomination in the elections (see Sudan Tribune, January 17, 2010, attached). He further said that presently the SPLA Act states that no member of the SPLA can participate in political activities but said there will be decisions made within the regulations of southern Sudan (see Sudan Tribune, January 14, 2010, attached). This statement clearly means that Salva Kiir is indeed in active military service as SPLA General. Also, Mr. Pagan Amum, the Secretary General of the SPLM, held a press conference in Khartoum on 20/1/2010 in which he declared that “President Salva Kiir will resign from the SPLA.” (The Intibaha daily newspaper dated 21/1/2010, attached).
8. These two statements from people very senior in the SPLM and close to General Salva Kiir confirm that he is still in active service in the SPLA.
9. By practice, General Salva Kiir has been active in the SPLA since he was reinstated in 2005 as evidenced by the above facts.
General Salva Kiir Mayardit is still in active service as an officer in the SPLA. Since the SPLA is an organized national force in accordance with Article 144(1) of the Interim Constitution of the Republic of Sudan 2005, General Salva Kiir cannot be eligible to run for the elections while still holding his military position in accordance with Article 12(2)(a) of the Political Parties Act 2007. His name has to be struck off the nomination list of candidates running for the office of the President of the Government of Southern Sudan.
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