By Dr. James Okuk
January 16, 2010 (SSNA) — The Interim Constitution of Southern Sudan (2005), which is a corollary of the Interim Constitution of the Sudan, does not allow the contestants for the highest seat of the President of the Government of Southern Sudan to be in military uniform or possess a military title. In short, these constitutions ban military dictatorship even if in defense of democracy. Unless the Abyei Minister, Dr. Luka Biong, who holds the portfolio of Ministry of GoSS Presidential Affairs has a private or gentlemen-agreed constitution of Southern Sudan different from what is known publicly, nothing legal can back his claim for defending the tricky situation and dilemma that Lt. Gen. Salva Kiir is falling in now as the Sudanese people enter into the real elections process. With the succession case of Lt. Gen. Paulino Matip Nhial pending, I can only remember the wisdom that says whoever digs a pit in the dark for his brother or sister, finds it difficult to avoid falling first into the same pit when surprised suddenly.
It’s known worldwide from political democracy sociology and comparative democratic transformation politics that official democratic elections process starts when candidates present their written intentions to run for identified post(s). Let us try to be legal so that we are safe as it is said. Article 111(1) of the Interim Constitution of Southern Sudan (2005) states it clearly that the President of the Government of Southern Sudan shall only be the C-In-C of the Sudan People’s Liberation Army “prior to the elections that shall be held during the interim period.”
The Southern Sudan Interim Constitution does not say the person who contests for the presidential seat of the GoSS should be the C-In-C of the SPLA during the elections period. I studied jurisprudence in my BA and MA endeavors and can confidently offer my academic competence here. The core terms of reference in the constitutional interpretation we are arguing about here are “Prior” and “During“.
That means, Lt. Gen. Salva Kiir Mayardit is not prohibited by the referred Constitution to be the C-In-C in Green SPLA military uniform with Lt. Gen., title as the President of the GoSS “prior to the elections.” Let us state the article as it is: “Prior to the elections that shall take place during the Interim Period, the Chairman of the Sudan People’s Liberation Movement, or his successor, shall be the President of the Government of Southern Sudan and Commander-in-Chief of the Sudan People’s Liberation Army in accordance with this Constitution. By virtue of being the President of the Government of Southern Sudan, he or she shall be at the same time the First Vice President of the Republic of the Sudan.”
However, this SPLM Chairman, SPLA C-in-C and the United Sudan VP is categorically not allowed to be so during the elections process if he chose to run for any top seat at the level of any Government in the North or South (even if a governor of Warrap State or MP of Gogrial West or East Constituencies). This constitution was put into fulfillment after the untimely death of beloved late Dr. John Garang de Mabior Atem, because thereafter, Mr. Cdr. Salva Kiir was declared by the SPLM leadership Council as the “successor” of Dr. Cdr. Garang.
Anyway, let us stop here for now because if we go to 2008 SPLA Act, things would be even more worst for Kiir and company, because this Act states it clearly (without any headache of legal interpretations) that no member of SPLA is allowed to participate in civilian partisan political activities. It is good that the Abyei Minister confessed this SPLA White Paper’s categorical imperative. The procedures of the National Elections Commission (NEC), backed by the Sudan 2008 Elections Act, are clear and definite on the conditions that ban those who wear military uniforms and titles from contesting in civilian democratic elections.
So, let the Abyei Minister in the GoSS lie or expose his constitutional ignorance somewhere else, not to the enlightened and well-informed Southerners of 21st Century. Let him and his nominee (Salva Kiir) prepare themselves for legal shock once Kiir’s full name appears in the NEC’s list of elections candidates soon. Those whose democratic political activities in the South have been upset and affected by Kiir’s written directive of 9/11/2009 through Dr. Minister Luka Tombekana Monoja, the GoSS Minister of Cabinet Affairs, are now preparing objection cases with concrete evidence to the NEC Chairman (Hon. Judge, Abel Alier and colleagues) in case Kiir’s name appear amongst the GoSS Presidency candidates.
No doubt, if this happens, the NEC shall disqualify Kiir’s candidacy with reference to law because nobody is supposed to be above the law in a civilized society.
The Interim Southern Sudan Constitution states: “Any person aggrieved by an act of the President of the Government of Southern Sudan may contest such act: (a) before the Supreme Court of Southern Sudan, if the alleged act involves a violation of this Constitution, a Southern Sudan state constitution, the Bill of Rights, the decentralized system of government, or the comprehensive Peace Agreement; (b) before any other competent court of law, if the allegation is based on any other legal grounds.” Many available evidences show that the SPLM-DC has already filed a legal case in a competent court of law against Kiir’s directive that had banned the SPLM-DC from practicing the Bill of rights in the South.
In truth we trust and nothing we should revere with utmost honor except the truth until death makes us part!!!
Dr. James Okuk is a concerned citizen of South Sudan. He can be reached at firstname.lastname@example.org