By Hon. Paul Biel Chol
On February 20, 2020, President Kiir appointed Dr. Riek Machar the First Vice President of the Republic and other four Vice Presidents to kickoff the formation of the Revitalized Transitional Government of National Unity as prescribed by the R-ARCISS. This was followed by appointment and swearing in of the cabinet Ministers on March 13,2020 culminating full formation of the executive branch of the supposed peace government.
As dictated by the agreement (R-ARCISS) in Article 1.14, there was supposed to be a new arrangement on the parliament (TNLA and CS) to work with the revitalized executive branch of R-TGONU. It is now 12 months since the executive branch of R-TGONU was formed but with no new arrangements on the legislature.
The TNLA and CS that were reconstituted by the first agreement of 2015 remains in place. But some members of the executive that was rightly revitalized and came to existence without being vetted or approved by parliament remains selectively defiant to observe the authority of the current parliament alleging that it is illegal.
Here are some questions that beg for answers:
– Is the current parliament of South Sudan illegal?
Article 1.14.2 stipulated that the TNLA shall be expanded to 550 members and then reconstituted according to power sharing ratios. There are three words that we need to consider in this article. First, the acronym TNLA is not connected with the word revitalized. Second, the agreement provides for only two things to happen with the current parliament (TNLA): expansion from 400 to 550 members and reconstitution. This means that, the current parliament doesn’t disappear. It gets expanded and formed again.
So, whatever we have now at the moment, the law considers it as part of the next parliament according to this provision. 400 members of a parliament of 550 members can still take binding decisions, it is more than 2/3 majority. I therefore argue that the current parliament is legal and can therefore continue to function pending its expansion and reconstitution because the agreement doesn’t dissolve it entirely.
Second, in government, for any institution to cease to exist, it has to formally be dissolved. Even when nations go for elections to bring new parliament, the old parliament get formally dissolved. If not done, that old parliament continue to function until new parliament is inaugurated. There should be no vacuum created in the middle.
The current parliament is now sent on recess by the Speaker through approval of the President. Being on recess doesn’t amount to dissolution.
– Is the current executive branch of government of R-TGONU constitutional?
Article 1.14.7 confirm that the function and mandate of TNLA shall remain as stipulated in the Transitional Constitution of Republic of South Sudan, 2011.
Article 57(h) of the Transitional Constitution of South Sudan, 2011 stipulates that TNLA should approve appointments of cabinet Ministers before they can take oath of office. Therefore, the current executive arm of government is not constitutional because it was not vetted and approved by the legislature as dictated by the constitution and agreement.
Also, according to this provision, it is constitutionally binding that the legislature be constituted before executive arm of the government because the latter needs approval of the former so it become legally constituted.
– Can an executive arm of government function for 12 months with out legislature be legal?
To answer this question, I don’t have legal backing. In South Sudan, it seems to be happening. But the truth of the matter is that, the executive arm of the government is in fact not functioning without a legislature currently. The current parliament is both functioning and legal at the same time. What is happening is that Ministers like Michael Makue Lueth and Angelina Teny tend to deal with the current Parliament selectively. To them, the current parliament becomes illegal when it tries to push them to the wall.
– Why did the parties choose to delay the expansion and reconstitution of the legislature?
The parties to the agreement both the government and all the oppositions have political marriage on this matter: intentional delay of the expansion and reconstitution of the legislature. But what we don’t know is why did they agree on this?
I want to do some speculations:
Firstly, most of the leaders see parliament as a dumping ground. They, therefore, wanted to see who is left from the executive in their circles so they could dump them in the parliament.
Secondly, the leaders seem to be wary of the functions and mandate of the parliament: they want to do all their political interests before the police could come in town.