To H.E. President Salva Mayardit: Legal Opinion on the appointment of state and local government officials

To: H.E Salva Kiir Mayardit
President, Republic of South Sudan and commander-in-Chief of the SSPDF and other regular forces

Subject: Legal Opinion on the Appointment of State and Local Government Officials.

1. Respectfully to your Excellency wise leadership, I write to submit this legal opinion to your end in reference to the above mentioned subject for your careful perusal and evitable consideration.

2.At the outset, this legal opinion is my personal contribution as an Advocate and legal consultant with roles of advocating the reign of constitutional governance. In this respect, the legal opinion is based on the Resolutions of the fourth meeting of the Presidency dated 9th December 2020, following the press statement issued by the Minister for Cabinet Affairs in contrast with the objective reality of the Transitional Constitution of the Republic of South Sudan 2011 as amended (The Constitution) and the Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCISS) respectively.

3.The objective of this legal opinion is to help inform your wise leadership decision in addressing gaps and legal implications of the said resolutions and most importantly answer two questions: whether the resolutions are consistent with the Constitution and the R-ARCISS ; and lastly whether there is constitution at the state level or not for the Governor to appoint the state and local government levels.

4. On Resolution No 1, the Presidency resolve ” that the President appoint the state and local government of the nine (9) states, except that of Upper Nile State”.This is direct and unilateral usurpation of state powers, and contrary to letter and sprit of article 1.2.15 of the R-ARCISS which mandated the Revitalised Transitional Government of National Unity (RTGoNU) to “devolve more powers and resources to the state and local government levels”.

5. Accordingly, the resolution Number 1 of the press statement is not consistent with the letter and spirit of the constitution and the R-ARCISS, because both legal framework have adequate provisions on the formation of state and local government levels. In this case, Article 165 (2) of the constitution provides ” the Governor of each state shall be the head of executive organ in the state and shall appoint and relieve the Deputy Governor, Advisors and state Ministers in consultation and agreement with the President, First Vice President and four Vice presidents and the nominating party and in accordance with the State Constitution and the Agreement. Therefore, article 1.2.15 of the R-ARCISS and article 165 (2) of the constitution are compatible and there is no any point of inconsistency and justification to usurp state powers.

6. Notwithstanding the express provisions of paragraph 5 of this legal opinion, it’s to be noted that the President has issued establishment order numbers 36/2015 A.D for creation of 28 states and later 32 states in the decentralised governance system in the Republic of South Sudan. However, establishment order did not abbrogate the state constitution neither the state legislative assembly of each state amended the state constitution. In other words, constitution being considered as a living document remaining in force since it has not been tempered in any way.

7. In the course of time, the Establishment Order Number 36/2015 received criticisms from all walk of life on the basis of unconstitutionality. As a result, the Presidency listen to the voices of legitimate reasons and return the country to ten (10) states and three (3) Administrative Areas. This brings in the question of whether there is legal instrument (the state constitution) in the state for the Governor to appoint the state and local government. And the answer is in affirmative because the state constitution has not been tempered with by the establishment order.

8. In conclusion, I hereby submit to reiterate that the constitution of each state remain with legal effects , following the return of the country to 10 states and three Administrative Areas and therefore the Governor have legal authority vested upon, by the State Constitution in conformity with Article 165(2) of the Constitution to appoint the state and local government officials. The only new situation is Ruweng Administrative Area which requires the appointment of the Administrative structures by an Executive Order, pending the development of its constitution.

Accept your Excellency the Assurance of my highest consideration

Adv. Beny Gideon Mabor
Advocate & Legal Consultant
23rd December 2020


(Advocate Beny Gideon’s Opinion)

Share the news